Breach of Release Conditions

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General Principles

Where an accused is arrested for an offence while released on a recognizance, the recognizance will remain in place.[1]

When an accused is granted bail in relation to any charge of murder and the accused is subsequently arrested for breach of recognizance, "the superior court has jurisdiction, whether under section 524 (4) or under section 521 of the Criminal Code, to revoke the accused's bail on the murder charges”.[2]

A recognizance remains in effect from the sureties remain bound by the conditions under section 764 (1) despite the breach allegation and arrest warrant being issued.[3]

Burden of Proof
When restrictive conditions contain exceptions, there is no burden upon the Crown to disprove the applicability of any of the conditions.[4] The burden to prove the applicability of an exception to a condition lies on the accused on a balance of probabilities.[5]

  1. s. 765
  2. R v Wright, 2010 ABQB 83 (CanLII)
  3. R v Lowingali, 2009 ABPC 185 (CanLII)
  4. R v Ali, 2015 BCCA 333 (CanLII) at paras 26 to 30
  5. Ali at para 30

Warrant of Arrest for Failure to Attend

See also: Warrant Arrests

Where the accused is released on bail, and he fails to attend the judge may order a warrant under s.512(2) or 597.

Section 512(2) states:

Certain actions not to preclude issue of warrant
512. (1) A justice may, where the justice has reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons or a warrant for the arrest of the accused, issue a summons or warrant, notwithstanding that

(a) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed or cancelled under subsection 508(1);
(b) a summons has previously been issued under subsection 507(4); or
(c) the accused has been released unconditionally or with the intention of compelling his appearance by way of summons.

Warrant in default of appearance
(2) Where

(a) service of a summons is proved and the accused fails to attend court in accordance with the summons,
(b) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed under subsection 508(1) and the accused fails to attend court in accordance therewith in order to be dealt with according to law, or
(c) it appears that a summons cannot be served because the accused is evading service,

a justice may issue a warrant for the arrest of the accused.
R.S., 1985, c. C-46, s. 512; R.S., 1985, c. 27 (1st Supp.), s. 82; 1997, c. 18, s. 58.


CCC

Bench warrant
597. (1) Where an indictment has been preferred against a person who is at large, and that person does not appear or remain in attendance for his trial, the court before which the accused should have appeared or remained in attendance may issue a warrant in Form 7 for his arrest.
Execution
(2) A warrant issued under subsection (1) may be executed anywhere in Canada.
Interim release
(3) Where an accused is arrested under a warrant issued under subsection (1), a judge of the court that issued the warrant may order that the accused be released on his giving an undertaking that he will do any one or more of the following things as specified in the order, namely,

(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(d) abstain from communicating with any witness or other person expressly named in the order except in accordance with such conditions specified in the order as the judge deems necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order; and
(f) comply with such other reasonable conditions specified in the order as the judge considers desirable.

Discretion to postpone execution
(4) A judge who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge having jurisdiction in the territorial division in which the warrant was issued.
Deemed execution of warrant
(5) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed.
R.S., 1985, c. C-46, s. 597; R.S., 1985, c. 27 (1st Supp.), s. 121; 1997, c. 18, s. 68.


CCC

Forfeiture of Bail

Where an accused released on a recognizance is in breach of the order, the crown may seek forfeiture under s. 770 of the cash or property pledged as part of the recognizance.

Before the court can order forfeiture the Crown must establish that the failure to comply with the underlying recognizance must have delayed or defeated the ends of justice. (s. 770(1)(c))

Mere technical failures to attend is not sufficient to warrant the forfeiture.[1]

The court should then endorse the recognizance with a certificate of default under Form 33. (s. 770)

  1. R v Taylor [2002] O.J. No. 4246 (Sup.Ct.J.)
    R v Nanooch, 2008 ABQB 644 (CanLII) court should make explicit inquiry into reasons for being late and making a finding that the lateness meant justice was delayed or defeated

Defaulting and Forfeiting Recognizance

Default to be endorsed
770. (1) Where, in proceedings to which this Act applies, a person who is bound by recognizance does not comply with a condition of the recognizance, a court, justice or provincial court judge having knowledge of the facts shall endorse or cause to be endorsed on the recognizance a certificate in Form 33 setting out

(a) the nature of the default;
(b) the reason for the default, if it is known;
(c) whether the ends of justice have been defeated or delayed by reason of the default; and
(d) the names and addresses of the principal and sureties.

Transmission to clerk of court
(2) A recognizance that has been endorsed pursuant to subsection (1) shall be sent to the clerk of the court and shall be kept by him with the records of the court.
Certificate is evidence
(3) A certificate that has been endorsed on a recognizance pursuant to subsection (1) is evidence of the default to which it relates.
Transmission of deposit
(4) Where, in proceedings to which this section applies, the principal or surety has deposited money as security for the performance of a condition of a recognizance, that money shall be sent to the clerk of the court with the defaulted recognizance, to be dealt with in accordance with this Part.
R.S., 1985, c. C-46, s. 770; R.S., 1985, c. 27 (1st Supp.), s. 203; 1997, c. 18, s. 108.


CCC

Applications for forfeiture of bail “should not proceed on the basis of technical failures to attend".[1]

But where the accused does not appear, the it "presumed that the proceedings have been at least delayed if not defeated".[2]

It does not always follow that the consequence of a failure to appear that there has been at least a minimal delay of justice.[3]

To determine the amount of forfeiture, the court "Must balance societies need to have an effective system of Bill with the financial consequences for the individual who posted that bail".[4]

Simply arriving late does not necessarily amount of a "delay" of the ends of justice.[5]

The “ends of justice” are defeated where “the loss of confidence in the general practice of releasing offenders from custody until their trial is held.”[6]

Proceedings in case of default
771. (1) Where a recognizance has been endorsed with a certificate pursuant to section 770 and has been received by the clerk of the court pursuant to that section,

(a) 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 a 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, a 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.

Order of judge
(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.
Judgment debtors of the Crown
(3) Where, pursuant to subsection (2), a judge orders forfeiture of a recognizance, the principal and his sureties become judgment debtors of the Crown, each in the amount that the judge orders him to pay.
Order may be filed
(3.1) An order made under subsection (2) may be filed with the clerk of the superior court and if an order is filed, the clerk shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.
Transfer of deposit
(4) Where a deposit has been made by a person against whom an order for forfeiture of a 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.
R.S., 1985, c. C-46, s. 771; R.S., 1985, c. 27 (1st Supp.), s. 168; 1994, c. 44, s. 78; 1999, c. 5, s. 43.


CCC

The onus for forfeiture of the security is upon the applicant Crown.[7]

The court should consider the "extent the surety was at fault".[8] Where the surety assisted by aiding or abetting the accused is fleeing, then the security should be forfeited[9] A mere lack of due diligence may warrant forfeiture of some or most of it, variable on the "degree of fault".[10] Where the surety made "every effort to secure the appearance" of the accused, then they should keep the security.[11]

See also: R v Farrell, 2012 ABQB 744 (CanLII)

  1. R v Taylor, [2002] OJ No 4246 (ONSC)
  2. R v Nanooch, 2008 ABQB 644 (CanLII) at para 13
  3. Taylor at para 36
  4. R v Vincent, 2011 ONSC 2172
  5. Nanooch
  6. R v Aw, 2008 ABQB 261 (CanLII) at para 19
  7. R v Jacobson, 2005 CanLII 63779 (ON SC), at para 16
  8. Jacobson at para 14
    R v Andrews (1975), 34 C.R.N.S. 344 (Nfld. T.D.)
  9. Jacobson at para 14
    R v Huang, 1998 CanLII 4545 (ON CA), (1998), 127 CCC (3d) 397 (Ont. C.A.)
  10. Jacobson at para 14
    Huang
  11. Jacobson at para 14
    Huang

See Also