Estreatment of Recognizance

From Criminal Law Notebook

General Principles

See also: Breach of Release Conditions and Release With and Without Sureties and Deposits

The Code authorizes the "estreatment" or forfeiture of money or property. This can be applied where the accused person breaches their bail conditions.

The Crown may apply under s. 770 for "estreatment" (i.e. forfeiture) of the property pledged in the agreement to enter into a recognizance.

Default to be endorsed

770 (1) If, in proceedings to which this Act applies, a person who is subject to an undertaking, release order or recognizance does not comply with any of its conditions, a court, provincial court judge or justice having knowledge of the facts shall endorse or cause to be endorsed on the undertaking, release order or recognizance a certificate in Form 33 [forms] 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) Once endorsed, the undertaking, release order or recognizance must be sent to the clerk of the court and shall be kept by them with the records of the court.

Certificate is evidence

(3) A certificate that has been endorsed on the undertaking, release order or recognizance is evidence of the default to which it relates.

Transmission of deposit

(4) If, in proceedings to which this section applies, the principal or surety has deposited money as security for the performance of a condition of an undertaking, release order or recognizance, that money must be sent to the clerk of the court with the defaulted undertaking, release order or recognizance, to be dealt with in accordance with this Part [Pt. XXV – Effect and Enforcement of Recognizances (ss. 762 to 773)].
R.S., 1985, c. C-46, s. 770; R.S., 1985, c. 27 (1st Supp.), s. 203; 1997, c. 18, s. 108; 2019, c. 25, s. 311.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 770(1), (2), (3), and (4)

Proceedings in case of default

771 (1) If an undertaking, release order or recognizance has been endorsed with a certificate and has been received by the clerk of the court,

(a) a judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on the Attorney General’s or counsel’s behalf, as the case may be, fix a time and place for the hearing of an application for the forfeiture of the amount set out in the undertaking, release order or recognizance; and
(b) the clerk of the court shall, not less than 10 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, 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 amount set out in the undertaking, release order or recognizance should not be forfeited.
Order of judge

(2) If subsection (1) [proceedings in case of default] has been complied with, the judge may, after giving the parties an opportunity to be heard, in the judge’s discretion grant or refuse the application and make any order with respect to the forfeiture of the amount that the judge considers proper.

Judgment debtors of the Crown

(3) If a judge orders forfeiture of the amount set out in the undertaking, release order or recognizance, the principal and their sureties become judgment debtors of the Crown, each in the amount that the judge orders them to pay.

Order may be filed

(3.1) An order made under subsection (2) [proceedings in case of default – order of judge] may be filed with the clerk of the superior court and if one 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) If a deposit has been made by a person against whom an order for forfeiture has been made, no writ of fieri facias may be issued, but the amount of the deposit must 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; 2019, c. 25, s. 311.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 771(1), (2), (3), (3.1), and (4)

This provision came into force on December 18, 2019.

The Court has broad discretion under s. 771(2) to grant an order of this nature.[1]

One of the purposes of the surety system is to encourage the accused to attend for the sake of avoiding the surety to be subject to "undue pain and discomfort."[2]

The Court's ability to enforce attendance at court "would be seriously diluted by widespread knowledge that the procedure is only invoked sporadically.”[3]

Standing

The surety will always standing to challenge a forfeiture hearing but a third party who loaned money to the accused or surety may not necessarily have standing.[4]

Burden

Before the court can order forfeiture the Crown must establish that the failure to comply with the underlying recognizance. (s. 770(1)(c))

Once a failure to comply has been shown, the onus is upon the respondent to show why the property should not be forfeited in its entirety.[5] The standard of proof is on the balance of probabilities.[6]

A party seeking to avoid forfeiture have an "obligation to adduce credible evidence to support their position."[7]

"Ends of Justice"

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.”[8]

Simply arriving late does not necessarily amount of a "delay" of the ends of justice.[9]

Misc Definitions

762
[omitted (1)]

Definitions

(2) In this Part [Pt. XXV – Effect and Enforcement of Recognizances (ss. 762 to 773)],
"clerk of the court" means the officer designated in column III of the schedule in respect of the court designated in column II of the schedule; (greffier du tribunal)
"schedule" means the schedule to this Part [Pt. XXV – Effect and Enforcement of Recognizances (ss. 762 to 773)]. (annexe)
R.S., c. C-34, s. 696.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 762(2)

  1. R v Tymchyshyn, 2015 MBQB 23 (CanLII), per Bond J, at para 7 - the court has "broad discretion"
    Canada (Attorney General) v Horvath, 2009 ONCA 732 (CanLII), 248 CCC (3d) 1, per Rosenberg JA, at paras 42 to 44
  2. Tymchyshyn, supra, at para 12
    Horvath, supra, at para 40
  3. Horvath, supra, at para 41
  4. R v Thomas, 2016 CanLII 15472 (NLSCTD), per McGrath J, at paras 11 to 30
  5. R v Jacobson, 2005 CanLII 63779 (ON SC), 31 CR (6th) 106, per GP Smith J, at para 16
    Tymchyshyn, supra, at para 6
    Horvath, supra, at para 27
  6. R v Wilson, 2017 ONCA 229 (CanLII), OJ No 1459, per Epstein JA, at para 22
  7. Wilson, supra, at para 22
    Horvath, supra, at para 52
  8. R v Aw, 2008 ABQB 261 (CanLII), 443 AR 151, per Sanderman J, at para 19
  9. Nanooch, supra

Considerations

The most important factor to consider is the "pull of bail" or in simpler terms the incentive of the surety and accused to comply with the terms of release.[1]

Diligence of the Surety

The court should consider the "extent the surety was at fault."[2] Where the surety assisted by aiding or abetting the accused is fleeing, then the security should be forfeited.[3] A mere lack of due diligence may warrant forfeiture of some or most of it, variable on the "degree of fault."[4] Where the surety made "every effort to secure the appearance" of the accused, then they should keep the security.[5]

Traditionally, the driving factor was the level of diligence exercised by the surety to supervise the accused.[6] However, has been noted as being potentially unfair as last-minute absconding would render the surety faultless in most cases.[7]

It's important that courts not overemphasize consideration of the "lack fault" element of the surety or else adversely affect the integrity of the system.[8]

Factors to Forfeiture

The Courts are recommended to consider factors including:[9]

  1. the circumstances under which the surety entered into the recognizance, particularly if there was coercion or duress;
  2. the nature of the relationship between the surety and the accused;
  3. whether the surety had day-to-day contact with the accused;
  4. what steps were taken by the surety to ensure the accused’s attendance at court and compliance with the conditions of the recognizance;
  5. any circumstances that might have alerted the surety that the accused was likely to abscond or otherwise breach;
  6. whether the surety assisted the accused in defaulting;
  7. what steps were taken by the surety after he or she determined the accused may have breached or was about to breach;
  8. the amount of the recognizance;
  9. the means of the surety at the time of the hearing, and any change in his or her financial circumstances since signing the recognizance of bail, and since the breach.


It is not appropriate to consider challenges to the validity of the recognizance order as a factor in whether to issue the order of forfeiture.[10]

Degree of Breach

The breach will be serious where the accused flees the jurisdiction.[11]It has even been called the most serious form of breach.[12]

Priority of Debtors

A legal Counsel who is owed money does not get priority in claim over the money to be forfeited.[13]

  1. R v Hanif, 2016 ONSC 7720 (CanLII), per Edwards J, at para 34
  2. R v Jacobson, 2005 CanLII 63779 (ON SC), 31 CR (6th) 106, per GP Smith J, at para 14
    R v Andrews (1975), 34 CRNS 344 (Nfld. T.D.), (1975), 9 Nfld. & PEIR 168, [1975] NJ No 26 (Nfld. S.C. (T.D.)(*no CanLII links)
  3. Jacobson, supra, at para 14
    R v Huang, 1998 CanLII 4545 (ON CA), 127 CCC (3d) 397, per McMurtry CJ
  4. Jacobson, supra, at para 14
    Huang, supra
  5. Jacobson, supra, at para 14
    Huang, supra
  6. R v Tymchyshyn, 2015 MBQB 23 (CanLII), per Bond J, at paras 10 to 11
    e.g. Andrews, supra
  7. Tymchyshyn, supra, at para 11
  8. Horvath, supra, at para 41
  9. Tymchyshyn, supra, at para 18
    Wilson, supra, at para 22
    Horvath, supra, at para 51
  10. Tymchyshyn, supra, at para 19
  11. Hanif, supra, at para 37
  12. Romania v Iusein, 2014 ONSC 623 (CanLII), 307 CCC (3d) 266, per Speyer J, at para 26
  13. Ducharme v Iftikhar, 2015 ONSC 1639 (CanLII), per Goodman J

Types of Conditions

The primary responsibility of a surety is to ensure that the accused attend court.[1]

Failure to Attend

Applications for forfeiture of bail “should not proceed on the basis of technical failures to attend."[2]

But where the accused does not appear, then it "presumed that the proceedings have been at least delayed if not defeated."[3]

It does not always follow that the consequence of a failure to appear that there has been at least a minimal delay of justice.[4]

The most serious form of failing to attend is where the accused absconds and brings the proceedings to a permanent halt.[5]

  1. R v Norman, 2014 ONSC 2005 (CanLII), at para 24
  2. R v Taylor, 2002 CanLII 20632 (ON SC), [2002] OJ No 4246 (ONSC), per Zelinski J
    R v Nanooch, 2008 ABQB 644 (CanLII), 459 AR 107, per Veit J (court should make explicit inquiry into reasons for being late and making a finding that the lateness meant justice was delayed or defeated)
  3. Nanooch, ibid., at para 13
  4. Taylor, supra, at para 36
  5. Norman, supra at para 24

Quantum of Forfeiture

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."[1]

Where the amount pledged is significant is may only be necessary to forfeit some of the property to protect the integrity of the bail system.[2] By contrast, lesser amounts are more likely to be forfeited in their entirety.[3]

In many cases the "pull of bail" can be achieved by "something less than total forfeiture."[4]

Where the subject of the forfeiture are larger amounts, a court should perform a "more searching examination of the circumstances."[5]

  1. R v Vincent2011 ONSC 2172(*no CanLII links)
  2. R v Tymchyshyn, 2015 MBQB 23 (CanLII), per Bond J, at para 14
    Canada (Attorney General) v Horvath, 2009 ONCA 732 (CanLII), 248 CCC (3d) 1, per Rosenberg JA, at paras 45 to 46
  3. Horvath, ibid., at paras 45 to 46
  4. Wilson, supra, at para 24
    Horvath, supra, at paras 44 to 45
  5. Wilson, supra, at para 26
    R v Jackson, 2013 ONSC 7761 (CanLII), per Durno J, at para 20

Conditions on Forfeiture

The discretion to issue an order of forfeiture includes a discretion to allow for a temporary stay of forfeiture and further conditions to forfeiture that should the accused return to custody within the stay period, the surety can apply in writing for relief from the order.[1]

  1. R v Hanif, 2016 ONSC 7720 (CanLII), per Edwards J, at para 40
    Horvath, supra

Procedure

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

Once there has been a finding of default, whether by way of guilty plea or other means, the Court must certify the recognizance in default at the request of the Crown.[1]

Applications for forfeiture

762 (1) Applications for the forfeiture of an amount set out in an undertaking, release order or recognizance must be made to the courts designated in column II of the schedule of the respective provinces designated in column I of the schedule.
[omitted (2)]
R.S., c. C-34, s. 696; 2019, c. 25, s. 309.

CCC (CanLII), (DOJ)


Note up: 762(1)

Executing Estreatment

Levy under writ

772 (1) Where a writ of fieri facias is issued pursuant to section 771 [proceedings in case of default], 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.

Costs

(2) Where this section applies, the Crown is entitled to the costs of execution and of proceedings incidental thereto that are fixed, in the Province of Quebec, by any tariff applicable in the Superior Court in civil proceedings, and in any other province, by any tariff applicable in the superior court of the province in civil proceedings, as the judge may direct.

R.S., c. C-34, s. 706.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 772(1) and (2)

Committal when writ not satisfied

773 (1) Where a writ of fieri facias has been issued under this Part and it appears from a certificate in a 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, a judge of the court may, upon the application of the Attorney General or counsel acting on his behalf, fix a time and place for the sureties to show cause why a warrant of committal should not be issued in respect of them.

Notice

(2) Seven clear days notice of the time and place fixed for the hearing pursuant to subsection (1) [committal when writ not satisfied] shall be given to the sureties.

Hearing

(3) The judge shall, at the hearing held pursuant to subsection (1) [committal when writ not satisfied], 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 a warrant of committal in Form 27 [forms].
Warrant to committal

(4) A warrant of committal issued pursuant to this section authorizes the sheriff to take into custody the person in respect of whom the warrant was issued and to confine him in a prison in the territorial division in which the writ was issued or in the prison nearest to the court, until satisfaction is made or until the period of imprisonment fixed by the judge has expired.

Definition of “Attorney General”

(5) In this section and in section 771 [proceedings in case of default], “Attorney General” means, where subsection 734.4(2) [when fine proceeds go to receiver general for Canada] applies, the Attorney General of Canada.
R.S., 1985, c. C-46, s. 773; 1995, c. 22, s. 10.

CCC (CanLII), (DOJ)


Note up: 773(1), (2), (3), (4), and (5)

Form 34 is a Writ of Fieri Facias, which authorizes sheriffs to seize property to be forfeited under the estreatment.

Recognizances For Youth

Forfeiture of Recognizances
Applications for forfeiture of recognizances

134 Applications for the forfeiture of recognizances of young persons shall be made to the youth justice court.

YCJA


Note up: 134

Proceedings in case of default

135 (1) When a recognizance binding a young person has been endorsed with a certificate under subsection 770(1) [default to be endorsed – requirements and contents] of the Criminal Code, a youth justice court judge shall (a) on the request of the Attorney General, fix a time and place for the hearing of an application for the forfeiture of the recognizance; and (b) after fixing a time and place for the hearing, cause to be sent by confirmed delivery service, not less than ten days before the time so fixed, to each principal and surety named in the recognizance, directed to his or her latest known address, a notice requiring him or her to appear at the time and place fixed by the judge to show cause why the recognizance should not be forfeited.

Order for forfeiture of recognizance

(2) When subsection (1) is complied with, the youth justice court judge may, after giving the parties an opportunity to be heard, in his or her discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he or she considers proper.

Judgment debtors of the Crown

(3) If, under subsection (2), a youth justice court judge orders forfeiture of a recognizance, the principal and his or her sureties become judgment debtors of the Crown, each in the amount that the judge orders him or her to pay.

Order may be filed

(4) An order made under subsection (2) may be filed with the clerk of the superior court or, in the province of Quebec, the prothonotary and, if an order is filed, the clerk or the prothonotary shall issue a writ of fieri facias in Form 34 set out in the Criminal Code and deliver it to the sheriff of each of the territorial divisions in which any of the principal and his or her sureties resides, carries on business or has property.

If a deposit has been made

(5) If 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.

Subsections 770(2) and (4) of Criminal Code do not apply

(6) Subsections 770(2) (transmission of recognizance) and (4) (transmission of deposit) of the Criminal Code do not apply in respect of proceedings under this Act.

Sections 772 and 773 of Criminal Code apply

(7) Sections 772 (levy under writ) and 773 (committal when writ not satisfied) of the Criminal Code apply in respect of writs of fieri facias issued under this section as if they were issued under section 771 (proceedings in case of default) of that Act.

YCJA


Note up: 135(1), (2), (3), (4), (5), (6), and (7)

See Also