nan S.H.C.R. 150705 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN and LLOYD EUGENE BAILEY nan HEARD: At Halifax, Nova Scotia, on June 2, 2000 BEFORE: The Honourable Justice Donald M. Hall DECISION: July 21, 2000. COUNSEL: John Scott, Esq., Counsel for the Crown. Brad Sarson, Esq., Counsel for the Defence. Reverend Wrenford Bryant Surety Hall, J. [1] The Crown has applied pursuant to s. 771 for an order forfeiting the amount of bail set out in a recognizance entered into by the accused, Lloyd Eugene Bailey, and the surety, Reverend Wrenford Bryant, in the amount of $1,000.00, which was given to secure the release of the accused pending his trial on a number of criminal charges. [2] The question for the court to decide here is whether, in the circumstances of this case, forfeiture should be ordered against the accused or the surety or both. [3] The accused was charged with four offences with respect to a twelve year old girl which allegedly occurred during the month of December, 1997. The offences include sexual assault under s. 271(1)(a) of the Criminal Code, uttering a threat, s. 264.1(1)(a), sexual touching under s. 151 and unlawfully having a weapon contrary to s. 87. [4] It appears that the accused was arrested in December of 1997 and remanded in custody at the Halifax Correction Centre pending posting of bail which was set at $1,000.00 with a surety. The surety, Mr. Bryant, visited the accused at the Halifax Correction Centre and agreed to be surety. He then appeared before justice of the peace at the Correction Centre and signed the recognizance. In the supporting affidavit of justification, he stated his assets as "1984 LeSabre Buick". condition of the recognizance was that the accused appear in court when required to do so and that he continue to reside at his then residence on Brunswick Street in the City of Halifax. The accused was released. He appeared for his preliminary inquiry in September, 1998. Subsequently trial date was scheduled for June 8, 1999, and resolution conference was set for January 28, 1999. This was subsequently adjourned to March 11, 1999. In May, 1999, the trial was adjourned from June, 1999, at the request of the accused and was rescheduled for March 6, 2000. It appeared that at that time the accused had been injured and was not present at the May proceeding because both of his legs had been broken. [5] Following his release from prison the accused continued to reside at the Brunswick Street residence for period of time but then moved on number of occasions. He resided for period on Stokoe Avenue in Lower Sackville and then in Annapolis Royal at the home of his father for short period and subsequently at the residence of neighbour in Annapolis Royal. He eventually returned to the Halifax area and then moved to British Columbia in early February of this year.. [6] The accused is paraplegic having suffered serious injuries in an automobile accident in 1990. As result, he has not been gainfully employed since that time and has been dependent on social assistance for his subsistence. At first the accused was confined to wheel chair but now apparently he is able to walk to limited degree with the aid of "walker". Apparently, as result of his inability to find suitable living accommodation in this area and to obtain further treatment that was not available here, he asked the local Social Services officer to provide him with funds to enable him to relocate to British Columbia. The local office provided him with funds to purchase one way airfare to British Columbia and around the first of February, 2000, the accused moved to British Columbia. When his application was being considered by the Social Services officials the accused was asked if he had any outstanding court dates and so forth. He replied that there was "one court issue that was being dealt with and wouldn't prevent him from leaving the province". No further inquiry with respect to this issue was made and the money was provided. The accused then moved to British Columbia despite the fact that his trial on these charges was scheduled to begin in Halifax on March 6, 2000, and he had further court appearance scheduled in Provincial Court for March 21st, 2000, with respect to an unrelated criminal charge. [7] The accused did not appear for trial on March 6, 2000 and a Canada wide warrant for his arrest was issued. He was eventually located in British Columbia and was arrested. Two police officers from Halifax were dispatched to British Columbia to return the accused to Halifax and he was returned at total cost of approximately $12,000.00. [8] Under date of April 19, 2000, Tidman, J., of this Court signed an order in Form 33 of the Criminal Code declaring that the accused was in breach of his obligation to appear in court for trial on April 6, 2000. Notice of this application for forfeiture under s. 771 was given to the accused and the surety. [9] The position of the Crown with respect to the accused is that he deliberately left the province to avoid his trial and, therefore, should be responsible for the full $1,000.00. As to the surety, the Crown submitted that under s. 771(2) of the Criminal Code sureties have a responsibility to ensure the attendance at trial of the person for whom they go bail and are responsible for getting out of prison and, therefore, the surety should be responsible for the full $1,000.00. [10] The position of the surety, Mr. Bryant, is that he was "sucked into signing the bail". He maintains that he did not know what it was until after he had signed it. After learning that in fact he had gone bail for the accused he thought that it only carried through until the accused's first appearance in court and that since the accused did appear in court he was no longer responsible. He maintains further that it was not explained to him what his responsibilities under the recognizance were and thus he should not be responsible for any amount. [11] The position of the accused is that he did not leave Nova Scotia to avoid trial but because he could not find living accommodation here. He maintains that he failed to return from British Columbia because he did not have any money to purchase ticket to return to Nova Scotia. He says further that he had no intention of avoiding trial but did not return because of his impecuniosity and should, therefore, not be responsible for the bail. The applicable provisions of the Criminal Code are: 771. (1) Where recognizance has been endorsed with certificate pursuant to section 770 and has been received by the clerk of the court pursuant to that section, (a) judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on his behalf, fix time and place for the hearing of an application for the forfeiture of the recognizance; and (b) the clerk of the court shall, not less than ten days before the time fixed under paragraph (a) for the hearing, send by registered mail, or have served in the manner directed by the court or prescribed by the rules of court, to each principal and surety named in the recognizance, directed to the principal or surety at the address set out in the certificate, notice requiring the person to appear at the time and place fixed by the judge to show cause why the recognizance should not be forfeited. (2) where subsection (1) has been complied with, the judge may, after giving the parties an opportunity to be heard, in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper. (3) Where, pursuant to subsection (2), judge orders forfeiture of recognizance, the principal and his sureties become judgment debtors of the Crown, each in the amount that the judge orders him to pay. (4) Where deposit has been made by person against whom an order for forfeiture of recognizance has been made, no writ of fieri facias shall issue, but the amount of the deposit shall be transferred by the person who has custody of it to the person who is entitled by law to receive it. (1) Where writ of fieri facias is issued pursuant to section 771, the sheriff to whom it is delivered shall execute the writ and deal with the proceeds thereof in the same manner in which he is authorized to execute and deal with the proceeds of writs of fieri facias issued out of superior courts in the province in civil proceedings. (1) Where writ of fieri facias has been issued under this Part and it appears from certificate in return made by the sheriff that sufficient goods and chattels, lands and tenements cannot be found to satisfy the writ, or that the proceeds of the execution of the writ are not sufficient to satisfy it, judge of the court may, upon the application of the Attorney General or counsel acting on his behalf, fix time and place for the sureties to show cause why warrant of committal should not be issued in respect of them. (3) The judge shall, at the hearing held pursuant to subsection (1), inquire into the circumstances of the case and may in his discretion (a) order the discharge of the amount for which the surety is liable; or (b) make any order with respect to the surety and to his imprisonment that he considers proper in the circumstances and issue warrant of committal in Form 27. [12] There does not seem to be great deal of jurisprudence on this subject and counsel referred to none. It would appear from the wording of ss. 771(2) that the judge hearing forfeiture application has very wide discretion. have, however, examined the English case of R. v. Horseferry Road Magistrate, ex parte Pearson [1976] nan All E.R. 264 and the Canadian cases of R. v. Sandhu (1984) 38 C.R.(3d) 56 and R. v. Huang (1998) 127 C.C.C.(3d) 39. 13. In R. v. Horseferry Road Magistrates’ Court ex parte Pearson (supra) in setting aside the forfeiture order of the magistrate, Lord Widgery, C.J., said at page 266: What is said here, as was said in R. v. Southampton Justices, is that the magistrate failed to take into account certain important factors and thus exceeded his jurisdiction. Those important factors were two in number. The first was the means of the surety and the second was his or her culpability. nan In R. v. Southampton Justices Lord Denning MR said: By what principles are the justices to be guided? They ought, think to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided it or abetted it, it would be proper to forfeit the whole of the sum. If he or she was wanting in due diligence to secure his appearance, it might be proper to forfeit the whole or substantial part of it, depending on the degree of fault. If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, it might be proper to remit it entirely. Then he goes on to say that in that case the surety had done all that wife could do and accordingly the order for forfeiting her recognisance was set aside. find it difficult, with all respect to Lord Denning MR, entirely to follow this passage that have read because the forfeiture of recognisance is in no sense penalty imposed on the surety for misconduct. do not doubt that the magistrate, before forfeiting the recognisance, must consider amongst other things the conduct of the surety and see whether it was open to criticism or not. But one must, think, start all these problems on the footing that the surety has seriously entered into serious obligation and ought to pay the amount which he or she has promised unless there are circumstances in the case, relating either to her means or to her culpability, which make it fair and just to pay smaller sum. Looked at from that point of view R. v. Southampton Justices is helpful authority in the present instance and would apply it accordingly. [14] Boilard, J., of the Quebec Superior Court in R. v. Sandhu (supra) adopted the statement of Lord Denning in referring with apparent approval to the decision of the Newfoundland Supreme Court in R. v. Andrews (1975) 34 CR.N.S. 344 where Furlong, C.J., said after quoting the above statement by Lord Denning: With great respect would wholly adopt this clear statement and have been guided by it. In this case have considered very fully the conduct of the sureties and have taken into account what their counsel has said about the apparent acquiescence by the police in continuing breaches of some of the conditions. The prime obligation which they undertook was to ensure the attendance of the accused before the Court when the charge against him was going to be tried. They know full well the safeguards that had been attached to the recognizance in order to minimize his disappearance. To say now that they were lulled into state of false security by the failure of the police to inform them of the breaches of the condition is not available to them as an excuse. There is no suggestion that they connived with the accused in any way in his ultimate disappearance, but they failed to exercise that vigilance over his comings and goings and particularly over his residence that one would have felt would have been exercised by them for the protection of their own money if not for any higher reasons. feel, then that they have exposed themselves to this danger imprudently and with reckless disregard for the consequences. The conclusion which have arrived at is not by way of any punishment but it is simply as the discharge of an obligation which they voluntarily undertook. [15] Mr. Justice Boilard went on to say that if there is reasonable doubt that the surety understood the nature of the obligation that he or she was assuming that would be reason for judge to exercise his or her discretion in favour of the surety and refuse forfeiture. In support of this proposition he quoted from R. v. Janz (1973) 1973 CanLII 1424 (BC SC), 12 C.C.C.(2d) 98; at page 140: In any event for the foregoing reasons have reasonable doubt that Mrs. Jermyn did clearly understand that the sum of $1,000 was to be forfeited to Her Majesty the Queen, which is the wording used in most recognizances and in Form 28 [re-en. R. v. S.C. 1970, c. (2nd Supp.), s. 23(8)] of the Criminal Code, and having such doubt exercise my discretion and refuse the Crown’s application. (16) He also cited with approval the following statement from Archbold, Pleading, Evidence and Practice in Criminal Cases, 41 edition, (1982), p. 154, para. Sureties. Before surety formally accepts the obligations imposed upon him it is the practice (i) to explain to him exactly what the obligations involve, (ii) to ensure that he understands the obligations he is to undertake, (iii) to ensure that he is still prepared to undertake the obligations and that he is worth the sum involved after all his debts are paid, and (iv) to warn him of the consequences, which include possible imprisonment, if the defendant fails to appear when required to. If the condition of recognizance entered into either by party or by his sureties be broken, the recognisances may be forfeited, and on forfeiture the obligees become debtors to the Crown for the sums in which they are respectively bound (see the Fines Act 1833 [(3 Will. 4), c. 99]). The court, however, has discretion whether to order the estreat of recognisance. In practice, the explanation, whether sworn or otherwise, that the surety had taken all reasonable steps to secure the attendance of the defendant is carefully scrutinised before the court’s discretion is exercised in favour of the surety (17) In R. v. Huang (supra), McMurtry, C.J.O., referred to the decision in R. v. Andrews (supra) saying at page 401: It is agreed by counsel for the Crown and the surety that the decision of R. v. Andrews sets out the proper principles in relation to the exercise of judicial discretion in matter such as this. (18) In the case of Mr. Bryant he testified that he did not have an opportunity to read the recognizance before signing it. He stated that after it had been filled out by the justice of the peace it was handed to him and he was told to sign it. The document was not explained to him and his obligations as surety were not explained to him, nor were the potential consequences in the event of default explained to him. As is the practice he was not given copy of the document. His was the only evidence before me in this respect and accept it as being accurate. [19] I conclude that Mr. Bryant had no concept of his obligations under the recognizance. He mistakenly believed that his responsibilities or liability ended with the accused's first appearance in Court following his release. Certainly he was not aware that he himself could be subject to imprisonment under s. 773 in the event of default and was not made aware of that fact. [20] It seems to me that as stated in Archbold (supra), for surety to be liable for forfeiture, he or she should have had an opportunity to read the document before signing it and the obligations being assumed and the potential consequences in the event of default should have been explained to him or her. [21] Here, am convinced that if Mr. Bryant had understood or been made aware of what was expected of him and the possible consequences, he would not have signed the recognizance. Mr. Bryant impressed me as very kind and compassionate but responsible person. am certain that if he had signed the document having full knowledge of surety’s obligations and liability he would have monitored the accused's conduct in much more diligent manner. In these circumstances I am satisfied that it would not be just nor appropriate to order forfeiture on the part of Mr. Bryant. [22] Turning next to the case of the accused, for very different reasons I have concluded as well that forfeiture ought not to be ordered against him. In the first place, it is obvious that it would be an exercise in futility. The accused is impecunious; he has no income and no assets other than an apparatus worth a few dollars that enables him to drive a motor vehicle. He is paraplegic suffering severe physical disability which greatly limits his potential for employment to earn income. At the present time he is incarcerated awaiting trial on the matters that are the subject of this recognizance. In addition, he is facing other unrelated serious criminal charges. In these circumstances, it is clear that he has absolutely no ability to pay any amount that might be ordered against him nor any reasonable prospect of being able to do so in the foreseeable future. [23] Since, as seems clear, the accused would not be able to pay any amount that may be ordered against him, an order for imprisonment under s. 773 could be triggered. Section 145 of the Code, however, provides its own penalty for failure to appear for trial. Thus, the accused would potentially be liable for a double punishment for his failure to appear for trial which is not acceptable in our system of criminal justice. [24] Although the accused's conduct in leaving the jurisdiction as he did may be considered to be blameworthy or, at best, reckless, if one accepts his version and deserving of some sanction, in the circumstances have concluded that forfeiture should not be ordered against him. As the authorities referred to above point out, the purpose of forfeiture is not to punish an obligor but to enforce payment of financial obligation. Those authorities also point out that the ability to pay surety is factor to be considered. It seems to me that this principle should also apply to the principal obligor, the accused. In my opinion, the accused already has enough on his plate and is experiencing enough negative factors without adding one more which would not be in his or the public’s interest. [25] Accordingly, the applications for forfeiture are dismissed. Donald M. Hall, J.
The accused was charged with four offences relating to a twelve year old girl, including sexual assault and uttering a threat. He was released on bail with a surety. The accused is paraplegic. He moved to British Columbia after his release. He did not appear for trial, and a Canada wide warrant was issued for his arrest. He was arrested and returned to stand trial. The Crown applied to have bail and the surety forfeited. It took the position that the accused had deliberately left the province to avoid trial, and therefore should be responsible for the full $1,000. It also contended that the sureties had a responsibility to ensure the accused's attendance at trial, and that they should also be responsible for the full $1,000. The surety testified that the conditions of the recognizance were not explained to him, and he did not understand the potential consequences of default. Dismissing the applications for forfeiture, that the surety had no concept of his obligations under the recognizance, and was not made aware of those obligations by the authorities. In these circumstances, it would not be just to order forfeiture. With respect to the accused, he is impecunious. His failure to pay any amount ordered against him could lead to imprisonment. As the accused already faces the prospect of imprisonment for failing to attend trial, this would create the potential of double liability for what is in essence the same offence.