Court File and Parties
Court File No.: CR-19-19-00BE Date: 2019-07-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Counsel: Kelly Frew, for the Crown
- and -
KENNETH GRIFFITHS Counsel: Daniel Freudman, for the Respondent
Heard: May 13, 2019 at Milton
Judgment on Bail Estreat Hearing
DURNO, J.
[1] On August 18, 2014 Kenneth Griffiths was released on a recognizance in the amount of $75,000 with three sureties: David Griffiths, his brother, Albert Griffiths, his father, and Treena Dean, his sister. Kenneth Griffith and the sureties each signed for $75,000 jointly and severally.
[2] The recognizance had twelve terms including that he was to be subject to house arrest unless he was in the presence of one of the sureties and he was to have no contact or communicate in any way either directly or indirectly with Bethany Hope Taylor Visser. He was prohibited from attending any place he knew Ms. Visser to be except for court appearances.
[3] On October 26, 2016, just over two years later when the recognizance was still in effect, Kenneth Griffiths was a passenger in a car driven by Ms. Visser in Huntsville. The OPP had been asked by Halton Police to conduct surveillance to determine if Griffiths was breaching his release order. He was arrested and charged with breaching his recognizance.
[4] On June 27, 2018 Kenneth Griffiths was found guilty of breaching his recognizance and his bail was noted for estreat. As the estreatment is based on a conviction, I will refer to Kenneth Griffiths as the offender.
[5] At the estreat hearing, on behalf of the Crown, Ms. Frew sought the full amount against the offender and David Griffiths and a lesser but substantial amount from Treena Dean.
[6] On behalf of the offender and the sureties, Mr. Freudman seeks estreatment of $20,000 in regards to the offender and $10,000 each for David Griffiths and Treena Dean. Albert Griffiths passed away before the application.
The Background Facts
[7] In 2014 the offender was released on a recognizance with a term to have no contact with Ms. Visser. In July, 2014, they were stopped by Waterloo Regional Police in Cambridge. Griffiths was driving the car and Ms. Visser was the passenger. Later, Halton police charged the offender with breaching two of the bail terms: a curfew and contacting Ms. Visser. As I understand it, the offender’s father and David Griffiths were the sureties on the first bail.
[8] The offender was released on a new recognizance that included house arrest and the same non-association clause in relation to Ms. Visser. The second recognizance is the subject of this hearing.
[9] The offender pled not guilty to the Cambridge breach and was convicted of both counts on February 24, 2017. Wolder J. found the contact with Ms. Visser was ongoing. She testified that they had seen each other regularly. The offender received 7 days in addition to 23 days credit for pre-trial custody. The breach that is the subject of this application occurred while that trial was ongoing.
[10] When the OPP officer saw the offender in a car driven by Ms. Visser in Huntsville, he was charged with breaching the second release order. He was found guilty of breaching his house arrest term as well as the no-contact with Ms. Visser term on June 27, 2018. His bail was noted for estreat on the basis of the finding.
The Evidence on the Application
[11] The two remaining sureties testified. The offender did not.
[12] David Griffiths, the offender’s brother, testified he was a pharmacist at the Huntsville Wal-Mart, earning roughly $130,000 annually before taxes when he signed the recognizance and at the time of the estreat hearing. He owned his home in Huntsville and had been a surety on the first release that the offender breached. David Griffiths did not know what happened to that breach charge.
[13] While supervising the offender, David Griffiths worked 12 hour shifts five days a week leaving the offender at his house when he worked. As he took the car to work, the offender had no vehicle to drive. The surety could not call the offender to check on him as there was no landline phone at that house and the offender’s bail precluded him from having a cell phone. At the bail hearing he told the justice of the peace that he worked and was told to continue to do so, as he was not the one on house arrest.
[14] David Griffiths signed for $75,000 along with his father and sister. At the estreat hearing he testified he thought the recognizance was for a total of $100,000 between the offender and the sureties. He knew the offender was alleged to have breached the first release by being with Ms. Visser although he did not see why she was included in the non-association clauses of either bail because she had nothing to do with the charges. [1] He viewed her inclusion as a trap to get the offender who was being unfairly prosecuted. David Griffiths was prepared to sign anything to make sure his brother did not stay in jail. He had no choice.
[15] With regards to the offender’s relationship with Ms. Visser, David Griffiths said “nature is nature” although their continued contact was a concern to him. While he never mentioned to the justice of the peace that the term should not be there, he was told by two lawyers who acted for the offender that they would have the term removed but never did.
[16] David Griffiths neither saw nor was aware of any issues with compliance until October 20, 2016 when his son called him to say Ms. Visser told him the offender had been arrested at the gym that was one kilometre away from David’s home. His son worked at the same Tim Hortons as Ms. Visser. As he was told the offender was in police custody, David Griffiths did not contact the police.
[17] On the day of the breach, David Griffiths had gone to watch his son compete in a cross-country race at his high school. In cross-examination, he said he never thought of taking the offender with him. In re-examination, his counsel pointed out to him that the offender was prohibited from being in the company of or communicating directly or indirectly with females under the age of 18. Had he attended a high school cross-country race he would have been breaching his recognizance.
[18] Albert Griffiths, the offender’s father, lived in Georgetown. There were occasions when David would take the offender to their father’s home. David bought a recreational vehicle to keep on his property so that his father could assist with the bail supervision but that plan did not work out. David Griffiths testified that Treena Dean would call every once in a while, to check on the offender.
[19] David Griffiths said that he now had roughly $400,000 in debt including his home mortgage. After taxes, he took home roughly $11,000 monthly and had $5,000-$5,500 in expenses.
[20] Treena Dean, the offender’s sister, worked as a security specialist for UPS at the time she signed the recognizance and at the time of the estreat hearing. She took home roughly $38,000 annually when she signed and $42,000 at the time of the estreat hearing. Her husband owns his own business and makes roughly $80,000 annually. They own a house with roughly $200,000 equity in Kitchener. Were she to have to pay $75,000, they would have to sell the house. The family currently has debts of around $20,000.
[21] Ms. Dean was not a surety on the first bail that permitted the offender to go out to work. The new bail was house-arrest. She was concerned that he had previously breached the release order prohibition against the offender seeing Ms. Visser. While supervising, she would speak to David and her father occasionally. She trusted the offender to comply with the release order and her brother David to supervise.
The Law in Relation to Estreat Hearings
[22] The leading authority on bail estreatment is the Court of Appeal judgment in Canada v. Horvath, 2009 ONCA 732, 248 C.C.C. (3d) 1 (Ont.C.A.). The onus is on the sureties to show on a balance of probabilities that they should not be required to pay the full amount: at para. 25. The Court has a broad discretion in determining how much of recognizance should be forfeited: at para. 5.
[23] Where forfeiture is ordered and the sheriff has been unable to seize sufficient real or personal property to satisfy the writ, pursuant to s. 773, the Crown may apply to a judge to fix a time and place for the surety to show-cause why a warrant of committal to jail should not be issued. The judge hearing that application has a discretion to discharge the amount for which the surety is liable or order the surety to prison. There is no reported case of a surety being imprisoned for over 100 years: at para. 25.
[24] The role of sureties was described by Trotter J.A. in his text The Law of Bail in Canada, 3rd Edition, as “effectively guaranteeing the accused will remain faithful to his/her recognizance:” at p. 6 -11.
[25] The Court of Appeal held that the most important consideration is the “pull of bail” whereby a recognizance causes the offender to attend his or her trial rather than subject his “nearest and dearest” to pain and discomfort: at para. 40.
[26] The Court continued:
41 … Our system depends upon accused attending court and if accused came to believe that they could fail to attend court without their sureties suffering any penalty, the surety system would be ineffective. As Justice Trotter notes, at p. 461 of his text, the effect of potential forfeiture "would be seriously diluted by widespread knowledge that the procedure is only invoked sporadically." An overemphasis on the surety's lack of fault could undermine the "pull of bail" and have an adverse impact on the criminal justice system, which depends upon the accused complying with release conditions.
[27] The same can be said for those who otherwise breach release orders.
[28] And further Trotter J.A. wrote,
45 The pull of bail can sometimes be vindicated by something less than total forfeiture. The Mirza case which involves a substantial sum, is an obvious example. It is not necessary to order forfeiture of the entire $500,000, an amount the Mirzas cannot possibly pay, to ensure the effectiveness of the bail system. Ordering forfeiture of a substantial sum that would entirely wipe out any equity that they have in their home would surely be more than sufficient. [2]
46 On the other hand, in the vast majority of cases, which involve relatively small sums, probably nothing less than total forfeiture would suffice to vindicate the pull of bail.
[29] Mirza’s were ordered to pay $120,000.
[30] While finding the diligence of a surety is a factor to consider the Court of Appeal held at para. 51:
… the diligence of the surety is only one factor relevant to a forfeiture hearing. In the end, the judge must attempt to balance various considerations in exercising the discretion conferred by s. 771(2). I do not think it is helpful or even possible to develop an exhaustive list of the factors that the judge should take into account in exercising this discretion. Further, not all factors will be of equal relevancy or weight in all cases.
[31] The Court of Appeal has held that the list of factors to consider on an estreat hearing is not closed. Based in part on Horvath at para. 51 and R. v. Nguyen, [2007] O.J. No. 5321 (S.C.J.), at para. 12, some of the factors that have been considered include:
(a) The amount of the recognizance, (b) The circumstances which caused the surety to enter the recognizance to secure the accused's release, especially whether there was any duress or coercion, (c) The period of time between the release order and the breach, (d) The surety’s intended role in the supervision where more than one surety signs, (e) The surety’s diligence, (f) Whether there were any circumstances that might have alerted the surety that the accused was likely to abscond or otherwise breach (g) The sureties’ means at the time the release order was signed, (h) Any significant change in the surety’s financial situation between the time the recognizance was entered and the breach and particularly between the breach and the estreat hearing. This is a relevant consideration notwithstanding that the surety voluntarily agreed to be bound by the amount in the recognizance. Canada v. McNeish, [1989] O.J. No. 681 (Ont.H.C.) (i) The surety’s post-breach conduct, especially attempts to assist the police in apprehending the accused, (j) The nature of the relationship between the surety and the accused as well as the level of control the surety had over the accused's behaviour, including whether the relationship was likely to persuade the defendant to return if he or she absconded (k) Whether the surety assisted the accused in defaulting (l) Whether the surety had day-to-day contact with the accused (m) Where the breach is failing to attend court, what steps were taken by the surety to ensure the accused's attendance at court (n) Whether the surety brought the accused before the justice of the peace
[32] Before examining the factors that apply in this application, an assessment of the witnesses will place the analysis in context. First, the offender’s brother was neither an impressive witness nor surety. He did not recall the amount he had pledged. He did not know what happened to the first breach charges for which he was potentially liable had there been an estreat order. He appeared not to recall that his brother could not be in the presence of persons under the age of 18 so could not attend the cross-country race.
[33] He regarded the term breached as unjustified because Ms. Visser was not a witness and his brother’s prosecution was unfair. Whether he asked two lawyers about that term need not be determined as he knew she was included when he signed the release and that the term had not been removed. He was clear that he felt the offender should not be in jail and he was going to sign as a surety regardless of the terms. While I cannot conclude he ignored his obligations, it was readily apparent that he did not feel there should be a prohibition on the offender communicating with Ms. Visser. His answer that “nature is nature” refutes any assertion that this was a one-time event in Huntsville unless nature only became nature 26 months after the release order. They were in a car driving down the street when arrested. It is not readily apparent what nature would have to do with that event.
[34] I found the second surety a sincere and honest witness. It was readily apparent that she was to play a lesser role in supervision given where she lived. While her liability was for the full amount, it is a relevant consideration what role she was to fulfill.
[35] The final area is the Crown’s argument that I should not proceed on the basis that this was the first and only time the offender and Ms. Visser were together in breach of the release order. Ms. Frew argued that the inference was inescapable that the one-time police surveillance occurs they just happen to be together. Any other interpretation stretches credulity. Mr. Freudman submits that it would be improper to proceed on the presumption that this was more than a one-time event.
[36] While initially attracted to Mr. Freudman’s submission, on reflection I am not persuaded he was correct. This is not a trial where the Crown has the burden of proof beyond a reasonable doubt. Whether the breach was in regards to the one day is a relevant consideration.
[37] As the Court of Appeal has held, the onus is on the offender and the sureties to show on a balance of probabilities why the total amount pledged should not be forfeited. If it was a one-time isolated incident would be relevant to that determination given the length of time the recognizance was in effect.
[38] Further, there is no specific wording that a court can consider with regards to the nature of the breach. The hearing is based upon the Certificate which provides simply that there were breaches of the house arrest and no contact terms. No doubt the certificate is also based on the finding of guilt to a one-time breach. The transcript of the offender’s guilty plea was not introduced. I proceed on the basis that the plea related to the one incident.
[39] The Crown also argued it would be unrealistic to assume that Ms. Visser and the offender were together because of his previous breach when the original offences occurred in Halton, one of the places the offender was required to live was Huntsville and Ms. Visser was working in Huntsville. I can also take into consideration that the offender has been found guilty of the earlier breach, one the trial judge found was a continuing breach – the offender being with Ms. Visser. Finally, I take into consideration my earlier comments about nature is nature.
[40] Bearing in mind that the onus is on the offender and the sureties, I find they have not rebutted the only reasonable inference – this was not a one-time isolated meeting.
[41] Finally, I have no evidence from Kenneth Griffiths. There is no obligation on him to testify. However, it is his onus. I know nothing about his finances at the time the recognizance was signed or now. I know he signed for $75,000 on a document that states at the top:
BE IT REMEMBERED that on this day the persons named in the following schedule personally came before me and severally acknowledged themselves to owe to Her Majesty the Queen the several amounts set opposite their respective names, namely,
[42] The schedule included the names of the offender, his three sureties and $75,000 after each name.
[43] The liability of an accused person for the full amount of the recognizance has been a matter of concern in previous estreat hearings I have conducted. While the issue was going to be argued on at least one occasion, that case was resolved on a joint submission.
[44] The amount for which an accused is liable must be determined on a case-by-case basis bearing in mind the onus. However, I do not recall ever hearing an accused questioned at their bail hearing about his or her ability to pay funds should he or she breach. Indeed, in many bail hearings the accused does not testify so the judge or justice of the peace conducting the hearing has no evidence about the accused’s ability to pay yet they sign that they are responsible for the total amount.
[45] The practical implications of the accused being liable for the full amount are significant. To take one example, if an unemployed person living on the streets with no assets, is charged with a serious criminal offence and his or her sibling comes forward prepared and suitable to act as a surety for $75,000 with the ability to pay should there be a breach, there is never an inquiry with regards to the accused’s ability to pay. [3] Were the accused’s ability to pay the total amount a prerequisite to release, many accused persons would never be released despite the Charter in s. 11(e) giving accused persons the right to reasonable bail unless there is just cause to deny release and the Supreme Court of Canada stressing the right to reasonable bail in R. v. Antic, 2015 SCC 27 and R. v. St. Cloud, 2015 SCC 27.
[46] While the accused signs that he or she accepts that they owe Her Majesty the Queen, on an estreat hearing his or her financial means at the time the recognizance was signed and the hearing date are particularly relevant. The application judge would then exercise his or her discretion given all the circumstances.
[47] Turning next to the factors noted above, the amount of the recognizance is substantial but not the size of the orders referenced by Rosenberg J.A. I am unable to find any coercion or duress was involved in the sureties signing. To be sure, the offender is their brother. However, there is nothing to suggest that his sister and brother were unduly pressured. Indeed, David Griffiths said he would have signed anything to get his brother out of jail.
[48] With regards to the sureties’ diligence, as regards David Griffiths I accept that he generally fulfilled his anticipated role but find he was less than diligent in regard to Ms. Visser and the offender. Even accepting that there were discussions with counsel about amending the bail to delete that term, he knew there was no variation. In addition, he was surety on the first bail and the offender breached a similar term. The warning flags were up when he signed the second time. While the offender was living with David Griffiths, he had day-to-day contact with the offender and a greater supervisory role than Ms. Dean.
[49] I find that Ms. Dean fulfilled the responsibilities that were imposed on her by the recognizances. It would be unrealistic to assume in every case that every surety was intended to fulfill the same role. While it may occur in some cases, this was not one of those cases. Despite pledging the same amount as the other sureties, Ms. Dean was never expected to have 24/7 supervision. I am persuaded she fulfilled her anticipated role.
[50] David Griffiths continues to have the ability to pay. Treena Dean is in somewhat of a different position and I find that an order close to the total would be unfair given her diligence and role.
[51] The release order was signed August 18, 2014 and the breach was 26 months later. That is a significant period of time during which there is no evidence of breaches subject to the above noted concerns that there had been continuing contact with Ms. Visser. It is a very important factor in my analysis.
[52] In regard to the post-breach conduct of the sureties, I am persuaded that they cannot be criticized for their failure to act. David Griffith’s information was that the offender had been arrested. While he might have called to confirm his son’s information, I am persuaded that no adverse inference can be drawn. Treena Dean was not the residential surety on the date of the breach and only learned of the breach after the arrest.
[53] Both sureties were siblings of the offender. I have no evidence as to whether or not one was closer to the offender than the other or was more likely to successfully keep tabs on him.
[54] Here, there is an additional factor, the death of the offender’s father, one of the sureties. His unfortunate passing put added responsibilities on the remaining sureties. While they could have sought to review the order, it is understandable why it remained in its original form.
Conclusion
[55] Balancing all the factors, I am not persuaded that the full amount should be forfeited by the offender and his sureties. Nor am I persuaded that the amounts for the sureties should be the same.
[56] In all the circumstances, the following amounts are ordered forfeited:
i) Kenneth Griffiths: $25,000 [4] ii) David Griffiths: $15,000 iii) Treena Dean: $7,500
DURNO, J.
Released: July 2, 2019
Footnotes
[1] Material filed by the Crown on this application quotes the Officer-in-charge D/Cst. Werner explaining that Ms. Visser was a victim/witness in relation to some unspecified charge Mr. Griffiths was facing.
[2] The Mirzas were ordered to pay $180,000 unless the Person Sought for extradition surrendered within 15 days.
[3] For the purposes of this argument I am assuming the surety is not to take full responsibility for the payment.
[4] While in the absence of any evidence regarding his finances at the time the order was signed or now could have supported the full amount, having regard to the comments at paras. 41 – 46 and the time the recognizance was in effect the order is as noted.
