Court Information

COURT OF APPEAL FOR ONTARIO DATE: 20220201 DOCKET: M53046 (C66597) Lauwers J.A. (Motion Judge)

Parties and Counsel

BETWEEN

Her Majesty the Queen Respondent (Moving Party)

and

Abadula Biya Appellant (Responding Party)

Counsel: Abadula Biya, acting in person Lula Ahmed, acting in person Biya Abajabel, acting in person Jeremy Tatum, for the moving party

Heard: January 13 and 28, 2022 by video conference

Reasons for Decision

[1] Abadula Biya was convicted and sentenced for charges relating to the unauthorized possession of a firearm and ammunition, possession of a Schedule 1 controlled substance (MDEA) for the purposes of trafficking, and possession of the proceeds of crime. His appeal was successful: R. v. Biya, 2021 ONCA 171. The conviction was quashed, and a new trial was ordered.

[2] The Crown applies for forfeiture of the July 16, 2020 release order that Mr. Biya and his sureties entered into under s. 771 of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Biya’s two named sureties are his father, Biya Abajabel, and his mother, Lula Ahmed. The sureties pledged $20,000 in support of Mr. Biya’s release.

[3] The sureties confirmed when entering into the release orders their understanding that: “[F]ailure on the part of [Mr. Biya] to follow any of the conditions in this release order could lead to the forfeiture of the amount of money that has been promised or deposited.”

[4] One of the terms of the release order was:

You must remain in your residence at all times except:

i. for medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling) or

ii. for attending court, or meeting with your lawyer, or for purposes of complying with this or any other court Order or

iii. for purposes of travelling directly to, from and while at work or school or

iv. when you are in the presence of your surety.

[5] The Crown states that on at least October 3 and 6, 2020, Mr. Biya did not comply with that condition of the release order and breached his bail. On December 16, 2020, he pleaded guilty to the October 3, 2020 breach charge. The October 6, 2020 breach facts, and other facts forming part of the circumstances of the offence, were read into the record as part of the plea agreement and the sentence to be imposed. Mr. Biya was sentenced to 59 days of custody less 29 days of enhanced pre-trial custody credit.

[6] On November 12, 2021, this court endorsed the default of the July 16, 2020 release order. Section 771 of the Criminal Code mandates a forfeiture hearing for the $20,000 that Mr. Biya and his sureties pledged in support of his release on bail pending appeal. They must now show cause why full forfeiture should not be ordered in the circumstances.

[7] A concern came to light in the writing of this decision, which led the Executive Legal Officer of the court to send a letter to the Crown, Mr. Biya and his parents inviting further submissions. The letter stated:

The order dated July 16, 2020… indicates at p. 2 that the sureties promised to pay the amount of $20,000 (without deposit). However, while the order notes a corresponding $20,000 obligation on the part of Mr. Biya, the box confirming that obligation has not been checked off.

The Crown seeks to have the forfeiture enforced against Mr. Biya as well as his parents, despite the absence of a check in the box for Mr. Biya.

[8] In the release order I made on March 15, 2019, and in subsequent release orders by Nordheimer J.A. dated October 4, 2019 and by Paciocco J.A. dated December 13, 2019, the following provision appears:

“IT IS ORDERED that the said appellant [Mr. Biya] shall forthwith be brought before a Justice of The Peace, and upon entering into a recognizance in the amount of $20,000.00, without a deposit, with the following sureties Biya Abajabel $20,000.00, Lula Ahmed $20,000.00, be admitted to bail upon the following conditions…”

[9] An amendment to s. 515 of the Criminal Code came into force on December 18, 2019, which provided that it was no longer mandatory that the accused promise to pay a specified amount for failing to comply with the conditions of the order. This led to a change in the form of the release order. The order of Hourigan J.A. dated April 9, 2020 and, as the Executive Legal Officer’s letter notes, the order of Pardu J.A. dated July 16, 2020 did not check off the box requiring Mr. Biya to be personally liable for the specified amount.

[10] I do not accept Mr. Biya’s submission that he always understood that it was only the sureties and not him who were responsible for forfeiture. All of the release orders other than the last two make it very clear that he had personal financial obligations.

[11] In the synopsis read into the record on Mr. Biya’s prosecution for breaching his recognizance, the additional information provided to the court states:

From September 5th, 2019 to October 6th, 2020 police have conducted 12 bail compliance checks in which they spoke to the accused’s parents (sureties) and his brother. The family members told police that the accused was at work at Birchmount and Eglinton. The accused has not worked at his place of employment since August of 2019.

[12] This was a breach and is within the time frame of my original release order, dated March 15, 2019, when Mr. Biya was plainly liable to pay the recognizance upon a breach. Mr. Biya admitted to the truth of the facts in the synopsis when he pleaded guilty to breaching his recognizance. In the circumstances, I conclude that I have jurisdiction to require forfeiture of bail from Mr. Biya and his parents.

[13] The legal principles applicable to bail forfeiture were set out in this court’s decision in Canada (Attorney General) v. Horvath, 2009 ONCA 732, 248 C.C.C. (3d) 1 and summarized by Durno J. in R. v. Griffiths, 2019 ONSC 4044, at paras. 22-31.

[14] The onus is on the sureties to show on a balance of probabilities that they should not be required to pay the full amount: Horvath, at para. 27. The court has discretion in determining how much of the amount should be forfeited: Horvath, at para. 5. Trotter J.A., in his text, The Law of Bail in Canada, loose-leaf, 3rd ed. (Toronto: Thomson Reuters Canada, 2010), describes the role of sureties as “effectively guarantee[ing] that the accused will attend in court and will abide by the conditions imposed”: at para. 6-8. The “pull of bail” is an expression used to capture the expectation that an offender will comply with the bail conditions rather than subject the sureties to personal liability: Horvath, at para. 40. The realistic prospect of actual forfeiture when bail is breached is needed to maintain the effectiveness of the system: Horvath, at para. 41. Trotter J.A. noted, at para. 13-1, that the effect of potential forfeiture “would be seriously diluted by widespread knowledge that the procedure is only invoked sporadically.”

[15] However, the court noted in Horvath, at paras. 45-46, that where a large amount is posted for bail, the pull of bail can sometimes be satisfied with less than full forfeiture while maintaining the credibility and effectiveness of the bail system.

[16] In Horvath, the court noted, at para. 51, that “the diligence of the surety is only one factor relevant to a forfeiture hearing.” Durno J. assembled a list of factors in Griffiths, at para. 31, that a judge may consider at a forfeiture hearing. I pick out several that are relevant to this proceeding:

(a) The nature of the relationship between the sureties and the accused, as well as the level of control they had over the accused’s behaviour;

(b) The sureties’ intended role in the supervision where more than one surety signs;

(c) The sureties’ diligence;

(d) The sureties’ post-breach conduct, especially attempts to assist the police in apprehending the accused;

(e) The amount of the recognizance;

(f) The sureties’ means at the time the release order was signed; and

(g) Any significant change in the sureties’ financial situation between the time the recognizance was entered and the breach, and particularly between the breach and the forfeiture hearing.

[17] Mr. Biya, his father and his mother all spoke at the hearing.

[18] Mr. Biya was contrite and remorseful. He admitted to actively misleading his parents about his going to school and his working long after he ceased both activities. He has been struggling to find a job, but his criminal record now stands in the way, quite apart from the economic conditions and the influence of COVID-19. He is hoping to return to school and in the meantime is looking for a minimum wage job. He would be well advised to speak to the John Howard Society, Dixon Hall’s Employment Services, or The Career Foundation.

[19] His mother Ms. Ahmed stated that she is on disability, and that she and her family, including four other children, have come through a bout with COVID-19. Mr. Biya’s father Mr. Abajabel is currently 68 years old and retired. This is a poor family. Both Mr. Biya’s parents were apologetic. His mother explained that she drove him to school and to work on occasions in the early days of his bail, but that both she and her husband trusted their son.

[20] It is quite clear to me that full forfeiture, which the Crown is not seeking in this case, would be a crushing financial blow, one from which this family could not recover. While maintaining the credibility of the bail system means that forfeiture must have teeth, that is a matter of proportionality.

[21] The Crown submits that Mr. Biya’s parents could have been more diligent in their supervision, but he believes that they assisted in locating Mr. Biya and having him present himself to the police for arrest.

[22] In my view, Mr. Abajabel and Ms. Ahmed must bear some financial responsibility for failing to attend to their duties with sufficient diligence. I also believe that Mr. Biya himself must pay something. But the family’s circumstances, and the general economic conditions, do not justify a large forfeiture.

[23] I therefore order Mr. Biya to pay by way of forfeiture of bail $1,500 over the course of two years, subject to further order of the court if his financial circumstances change, and I order that Mr. Abajabel and Ms. Ahmed each forfeit the sum of $750 and pay the amount over one year, subject to further order of this court if their financial circumstances change. I will remain seized of this matter and require the reattendance of the parties before me at a date to be fixed by the court in about six months.

[24] Mr. Biya may be served at his email address: “ * ”. His parents may be served at the email address provided to the court. If those email addresses change in the future, Mr. Biya and his parents must email the court at coa.e-file@ontario.ca or call the Motions Desk at 416-327-5025.

“P. Lauwers J.A.”