Canada (Attorney General) v. Horvath, 2009 ONCA 732

CITATION: Canada (Attorney General) v. Horvath, 2009 ONCA 732

DATE: 20091020

DOCKET: M36286

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg, Sharpe, Simmons and Armstrong JJ.A.

BETWEEN:

The Minister of Justice

Applicant

And

Adnan Ali Mirza, Farida Mirza, Amir Mirza and Adolf Horvath (Senior), Erika Horvath, Vilmos Balint

Respondents

and

The Public Prosecution Service of Canada and The Attorney General of Ontario and The Criminal Lawyers Association

Intervenors

Nancy Dennison and Heather J. Graham, for the applicant

David E. Harris, for the respondent Amir Mirza Francesca Yaskiel, for the respondent Farida Mirza Tomas M. Hicks, for the respondent Adolf Horvath (Senior) Christopher D. Hicks, for the respondent Vilmos Balint Frank Addario and Andrew Furgiuele, for the intervenor, The Criminal Lawyers’ Association Nicholas Devlin and Xenia Proestos, for the intervenor the Public Prosecution Service of Canada Riun Shandler, for the intervenor the Attorney General of Ontario

Heard: June 22, 2009

Rosenberg J.A.:

[1] In separate proceedings, this court released both Adolf Horvath and Adnan Mirza on recognizances with sureties pending proceedings in this court. In these proceedings, Adolf Horvath and Adnan Mirza were each challenging their extradition from Canada. Horvath was also released on a subsequent recognizance with sureties pending his leave application to the Supreme Court of Canada, after his appeal was dismissed by this court. In Horvath’s case, his wife, Erika Horvath, and his friend, Vilmos Balint, had agreed to be sureties in the amount of $60,000 each, for a total recognizance of $120,000. In Mirza’s case, his parents Farida and Amir had agreed to be sureties in the amount of $500,000.

[2] Neither of the accused surrendered in accordance with the terms of their recognizances. The Minister of Justice now seeks orders that the recognizances entered into by the sureties be forfeited in full, pursuant to s. 771 of the Criminal Code. The respondents argue that they should not be required to forfeit any portion of their recognizances, or alternatively that they should not be required to forfeit the full amount of the recognizances. While this matter was under reserve, Mr. Horvath was apprehended by the police. I will deal with this development later in the reasons.

[3] On these applications, the Minister of Justice, supported by the Public Prosecution Service of Canada and the Ministry of the Attorney General of Ontario (the “Crown intervenors”), asks this court to adopt an approach in which, absent exceptional circumstances, the entire recognizance will be forfeited by the surety, if the appellant fails to surrender in accordance with the recognizance. The applicant and Crown intervenors submit that the court should recognize only a very narrow set of circumstances that would justify anything less than full forfeiture. The sureties, supported by the Criminal Lawyers’ Association, submit that the court should continue to apply a more discretionary approach that allows the court to take into account a variety of factors when making a forfeiture order, to ensure that justice is done.

[4] One of the most contentious issues dividing the two sides is whether the court should take into account the fact that the surety has exercised due diligence in ensuring the accused complied with the terms of the recognizance. The applicant and the Crown intervenors submit that the surety’s due diligence is an irrelevant consideration. The sureties and the Criminal Lawyers’ Association favour a fault-based system where the diligence of the surety is of paramount importance.

[5] I would not entirely adopt the position advocated by any of the parties. I generally agree with the position of the sureties that the court has a broad discretion in determining whether and how much of the recognizance should be forfeited. However, in my view, the surety’s due diligence is merely one factor to take into account and in many cases will have no impact on the decision.

[6] In these cases, I would grant the applications in part. I would order that Erika Horvath forfeit the entire sum of $60,000 and that Vilmos Balint forfeit the sum of $20,000. I would order that the Mirzas forfeit the sum of $180,000.

A. THE HISTORY OF THE PROCEEDINGS

I. Adolf Horvath

[7] Adolf Horvath and his wife Erika are of Roma heritage. In 1999, along with their son, Adam, they fled Hungary to avoid persecution in that country. In 2002, Mrs. Horvath and Adam’s claims for refugee status were accepted. Mr. Horvath was found ineligible to advance a refugee claim. On November 12, 2003, the Minister of Justice issued an Authority to Proceed against Mr. Horvath at the request of the Republic of Hungary on charges of robbery, extortion and uttering threats. The Superior Court of Justice ordered that Mr. Horvath be released on a recognizance in the amount of $120,000 with two sureties, Mrs. Horvath and his close friend Vilmos Balint, each agreeing to be surety in the amount of $60,000.

[8] In June 2005, Mr. Horvath was ordered committed to await surrender. He immediately appealed to this court from that order and, on June 17, 2005, Goudge J.A. ordered his release on a recognizance on almost the same terms as the release order in the Superior Court. In May 2006, the Minister of Justice ordered that Mr. Horvath be surrendered to the Republic of Hungary. He immediately filed a notice of application for judicial review of the Minister's decision.

[9] As is customary in this court, the bail order made by Goudge J.A. contained a sunset clause requiring that Mr. Horvath surrender into custody either by a certain date or the day before his appeal was heard, whichever was earlier. New release orders were made by judges of this court from time to time pending the hearing of the appeal and the application for judicial review. Mr. Horvath complied with all the terms of those orders and, in particular, he surrendered into custody on October 3, 2007, the day before the appeal and application were heard. When the appeal and the application for judicial review were dismissed, on October 24, 2007, Mr. Horvath applied for leave to appeal to the Supreme Court of Canada. On November 2, 2007, Rouleau J.A. granted Mr. Horvath judicial interim release pending his application for leave to appeal. It was a term of that order that he surrender into custody within 48 hours of being informed that the Supreme Court of Canada’s decision on the leave application was ready for release.

[10] Mr. Horvath did not surrender as required and, on March 20, 2008, Moldaver J.A. issued an order for his arrest. On April 10, 2008, Juriansz J.A. ordered that the recognizance be noted for estreat.

[11] Both sureties filed affidavits in which they related the efforts they made to ensure that Mr. Horvath complied with the terms of the recognizance and surrendered into custody as required. Mr. Balint had been a surety for Mr. Horvath since 2003. During the ensuing 5 years, he had stayed in regular contact with Mr. Horvath and reminded him of his court dates. Mr. Horvath was required to surrender into custody on five occasions during this time, in accordance with the bail orders of this court, and did so. On March 18, 2008, Mr. Balint, Mr. Horvath and Mrs. Horvath met with a member of Mr. Horvath’s lawyer’s law firm. They were informed at that time that the Supreme Court was ready to release its decision and that Mr. Horvath was therefore required to surrender into custody. Mr. Balint last saw Mr. Horvath on March 19, 2008, shortly before Mr. Horvath left with Mrs. Horvath who was taking him to the jail. Mr. Balint saw nothing in Mr. Balint’s behaviour that made him think that he was not going to surrender.

[12] The following day, Mr. Balint received a telephone call from Mrs. Horvath saying that Mr. Horvath had in fact not surrendered into custody. Mr. Balint attempted to find Mr. Horvath. He contacted Mr. Horvath’s lawyer and the police. On March 25, 2008, Mr. Horvath telephoned Mr. Balint, but would not say where he was. Mr. Balint tried to persuade Mr. Horvath to surrender, and believed by the end of the conversation that he had been successful.

[13] In a second affidavit, Mr. Balint set out his financial circumstances. I will return to that affidavit later in these reasons.

[14] Mrs. Horvath also swore an affidavit. She says that she too was diligent in ensuring that her husband complied with the bail terms. She confirms that she drove him the jail on March 19, 2008. However, she did not actually watch him go into the jail because she found it too painful to do so. As on the prior occasions, Mr. Horvath gave his wallet and cell phone to Mrs. Horvath. Mrs. Horvath has not taken any steps to assist the authorities in finding her husband.

II. Adnan Mirza

[15] Adnan Mirza [“Adnan”] was arrested for fraud-related charges in April 2005 at the request of the United States of America. The amount of the alleged fraud was approximately $500,000. On April 28, 2005, a judge of the Superior Court of Justice ordered that Adnan be released on a recognizance with his parents, Farida and Amir Mirza (together, the “Mirzas”), acting as sureties. The amount of the recognizance was $500,000, even though Farida testified that they only had $120,000 of equity in their home and there was no indication that they had any other significant assets. The transcript of that bail hearing suggests that the judge was very reluctant to release Adnan.

[16] At the time of the bail hearing, Adnan was facing a fraud charge in Canada and he had previously skipped bail in the United States. His parents had posted a bond for him on the earlier United States charge and had forfeited that sum. The materials suggest that the bond was in the amount of $20,000. They were also sureties for Adnan on the outstanding fraud charge in Canada. Adnan pled guilty to that charge in 2006 and was given a conditional sentence.

[17] On March 3, 2006, Adnan was committed to await surrender. He immediately appealed that decision. Blair J.A. made an order releasing the accused pending the appeal on almost the same terms as had been made by the Superior Court of Justice. The Mirzas were again sureties in the amount of $500,000. In their affidavits in support of the bail application, the Mirzas represented that they had approximately $290,000 in equity in their home. They did not disclose that they had put a second mortgage on the property in January 2006 that reduced the equity in the house to just over $200,000. On August 1, 2006, the Minister of Justice ordered that Adnan be surrendered to the United States. Adnan immediately filed an application for judicial review of the Minister’s decision. Later that year, Adnan abandoned the appeal from committal.

[18] As in the Horvath case, it was a term of this court’s release order that the accused surrender into custody on the earlier of the day before the hearing of the appeal or the specified sunset date. New orders were made on several occasions as the sunset dates were about to arrive. The application for judicial review was scheduled to be heard on May 25, 2007. Adnan did not surrender as required on May 24, and the application for judicial review was dismissed.

[19] The Mirzas have filed affidavits in which they set out the efforts they made to ensure that Adnan complied with the terms of his recognizance. Farida moved in with Adnan, and Amir said that he was in regular contact with him. Farida says that she kept in contact with her son throughout the day while he was at work. According to Farida, the relationship between Adnan and his wife began to deteriorate. On March 1, 2007, Adnan and his family moved out of their rental home. Adnan’s wife and the children moved into another residence and Adnan moved in with the Mirzas. It was a term of the recognizance that Adnan and his sureties notify the police and the court of any change of residence. The Mirzas claim that Adnan told them he had done so. In fact he had not.

[20] As they had on prior occasions, the Mirzas intended to drive the accused to the jail on May 24, 2007. According to Farida, on the morning of May 24 Adnan left the house around 8:00 a.m., saying that he was going to his lawyer’s office to pay a bill. Adnan had borrowed a car from a friend for that purpose. At around 9:30 a.m., Farida began to panic because she had not heard from Adnan, and she tried to contact him. She learned from Adnan’s wife that Don, a friend of Adnan’s, was trying to contact Farida because he had lent Adnan a car and some money was now unable to locate him. At around 1:00 p.m., Farida went to the office of the justice of the peace and applied to be relieved of her obligation as a surety. Amir attended at the court office the next day for the same purpose. Neither Farida nor Amir did anything to assist the police in locating their son, and he remains at large. On June 8, 2007, Armstrong J.A. ordered that Adnan’s recognizance be noted for estreat.

[21] In their affidavits, the Mirzas discuss their current financial circumstances. I will return to that evidence later in these reasons.

III. The Proceedings in this Court

[22] The Minister of Justice applied to forfeit the recognizance that had been noted for estreat. The applications were originally heard by separate judges of this court. The Mirza application was heard by Simmons J.A. The Horvath application was heard by Borins J.A. The court decided to rehear both applications before a five-person panel, particularly because of the suggestion that an earlier decision of this court in R. v. Huang (1998), 1998 CanLII 4545 (ON CA), 127 C.C.C. (3d) 397, ought to be reconsidered.

B. ANALYSIS

I. The Statutory Scheme

[23] The provisions respecting forfeiture of recognizances are set out in Part XXV of the Criminal Code. In summary, where an accused does not comply with a condition of a recognizance, s. 770 provides that a judge shall make an endorsement on the recognizance setting out the nature of the default, the reasons for the default (if known), “whether the ends of justice have been defeated or delayed by reason of the default” and the names and addresses of the accused (the principal) and the sureties. The Crown may then apply to the court under s. 771(1)(a) to fix a date for the hearing of an application for the forfeiture of the recognizance. This hearing, commonly referred to as an estreat hearing, is ordinarily conducted by a judge of the superior trial court of the province. However, in Quebec, the estreat hearing is held before a judge of the Court of Quebec, and in British Columbia the estreat hearing is held before a judge of the Provincial Court in respect of a recognizance for the appearance of the accused in that court. Uniquely, in Ontario, where the bail order is made by this court, the estreat hearing is conducted by a judge of this court.

[24] The next step in the procedure, contained in s. 771(1)(b), is for the clerk of the court to notify the accused and the sureties of the hearing to permit them to “show cause why the recognizance should not be forfeited.” The hearing itself is governed by s. 771(2), which provides that after giving the parties an opportunity to be heard, the judge “may … in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper.” Where a forfeiture order is made, s. 771(3) provides that the accused and the sureties become judgment debtors of the Crown “each in the amount that the judge orders him to pay.” The order may then be filed in the superior court and the clerk of that court shall issue a writ of fieri facias. The sheriff will then execute the writ: s. 772.

[25] Under s. 773, where the writ has been issued but the sheriff has not been able to seize sufficient real or personal property to satisfy the writ, the Crown may apply to a judge to fix a time and place for the sureties “to show cause why a warrant of committal should not be issued in respect of them.” The judge hearing the application for committal “may in his discretion” order the discharge of the amount for which the surety is liable or order that the surety be committed to prison, where the surety may remain “until satisfaction is made or until the period of imprisonment fixed by the judge has expired.” At the hearing, we were told by counsel that there is no reported case of any surety having been imprisoned in Ontario in over 100 years.

[26] There is no right of appeal in the Criminal Code from the decisions made under ss. 771 and 773. As well, except in the limited circumstances where the estreat hearing is held before a provincial court judge, judicial review by way of certiorari would not be available.

II. The Onus of Proof

[27] There was some discussion at the hearing of these applications as to who bore the onus of proof on a forfeiture hearing. In my view, the onus is on the surety to show why the recognizance should not be forfeited. This follows from the wording of s. 771(1)(b) which gives the surety the opportunity “to show cause why the recognizance should not be forfeited.” This language is similar to the language in the judicial interim release provisions in Part XVI of the Code. The party required to “show cause” under those provisions has been held to have the burden of proof. Finally, Mr. Justice Gary Trotter, in the leading text on bail, The Law of Bail in Canada, 2d ed. (Toronto: Carswell, 1999) (“Trotter”), notes at p. 473 that placing the onus of proof on the surety is also consistent with the wording of the recognizance itself. The recognizance, Form 32, records in somewhat archaic language that the sureties “acknowledged themselves to owe to Her Majesty the Queen the several amounts set opposite their respective names”. It makes sense that the sureties, having acknowledged their debt, ought to have the onus of showing why that debt should be discharged.

III. The Test to be Applied

The Case Law

[28] A case that has been the source of considerable debate respecting the test on an application for forfeiture of a recognizance is R. v. Southampton Justices, ex parte Green, [1975] 2 All E.R. 1073 (C.A.). The English legislation dealt with in that case is similar to s. 771 in providing that the court “may … adjudge [the surety] to pay part only of the sum or remit the sum.” In ex parte Green, Lord Denning held at p. 1077 that the word “may” confers a discretion and enables the court “to do what the justice of the case requires.” Then in a paragraph that has been frequently criticized in subsequent cases, he set out his view as to the guiding principles to be referred to in determining the sum to be forfeited by the surety at pp. 1077-78:

By what principles are the justices to be guided? They ought, I 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 a 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.

[29] Lord Denning allowed the surety’s application for certiorari and set aside the order of the justices forfeiting the full amount of her recognizance because the justices had failed to take into account the surety’s “culpability”: p. 1079. In his concurring reasons, Browne L.J. agreed with Lord Denning that the justices erred in “that they did not enquire into the circumstances of Mr Green’s disappearance nor the extent to which Mrs Green was to blame for it.” In his view, that was “something which they ought to have considered in exercising their discretion”: p. 1079. Brightman J. agreed with Lord Denning and Browne L.J.

[30] The approach in ex parte Green has been followed in Ontario. In particular, in Huang, McMurtry C.J.O. quoted with approval the passage set out above. In that case, the recognizance was in the amount of $200,000. McMurtry C.J.O. was of the view that the surety, who lived in a different city than the appellant, had not exercised due diligence in supervising the appellant and had acted in bad faith in placing a large mortgage on his property after entering into the recognizance, “thereby effectively wiping out his equity”: para. 10. However, McMurtry C.J.O. was also critical of the police for failing to inform the surety that the appellant had failed to report to the reporting centre. He ordered that the amount of $75,000 be forfeited by the surety.

[31] Ex parte Green has also been followed in other provinces. See, for example: R. v. Andrews (1975), 1975 CanLII 2455 (NL SC), 9 Nfld. & P.E.I.R. 168 (Nfld. S.C.); R. v. Miller, [1990] B.C.J. No. 2016 (Co. Ct.); R. v. Sandhu (1984), 1984 CanLII 5681 (QC CS), 38 C.R. (3d) 56 (Que. S.C.); and R. v. Millward (1998), 1998 ABQB 718, 128 C.C.C. (3d) 67 (Alta. Q.B.).

[32] On these applications, the Minister of Justice Canada and the Crown intervenors submit that the ex parte Green approach is wrong. They submit that this fault-based test does not adequately ensure respect for and compliance with surety bails. The criticism of this approach is captured in this comment by Justice Trotter in his text at p. 481:

An approach based on the fault or diligence of the surety neglects the effect this might have on the accused person. An accused with diligent and responsible sureties could abscond at the last minute, knowing that his/her sureties (perhaps family members or other close relations) will be relieved from forfeiture by having done their best.

[33] The Minister also submits that since ex parte Green, the courts in England have distanced themselves from a fault-based approach. It is unnecessary to review all of the cases since ex parte Green. One of the clearest expressions of the approach now taken in England is found in R. v. Crown Court at Maidstone, ex parte Lever, [1995] 2 All E.R. 35 (C.A.).

[34] As is pointed out in ex parte Lever, much of the concern in the English cases since ex parte Green has been with the following sentence from Lord Denning’s reasons in that case:

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.

[35] Ex parte Lever and other English cases establish that it is only in exceptional circumstances that the entire amount of the recognizance would be forgiven. As Butler-Sloss L.J. said, at p. 38, “Lord Denning MR was considering a wholly extreme and exceptional case” in which it would be proper to remit the recognizance entirely. The kind of circumstances that might lead to forgiveness of the entire amount are explained in a case such as R. v. Harrow Crown Court, ex parte Lingard, [1998] E.W.H.C 233 “where the surety is entirely blameless and the failure of the defendant to surrender to bail is wholly outside the control of, and unforeseeable by, the surety.” To a similar effect is R. v. Crown Court at Reading, ex parte Bello (1990), 92 Cr. App. R. 303 (C.A.), at p. 311, giving as an example a case where the accused and the surety were on the way to court when both were seriously injured in a motor vehicle accident

[36] However, despite this hesitance to forgive entirely a recognizance entered into by a surety, the English cases confirm that the statutory provisions confer a broad discretion on the justices and that the surety’s diligence is a relevant consideration when determining the amount of forfeiture. Butler-Sloss L.J. put it this way in ex parte Lever, at p. 38:

The presence or absence of culpability is a factor but the absence of culpability, as found in this case by the judge, is not in itself a reason to reduce or set aside the obligation entered into by the surety to pay in the event of a failure to bring the defendant to court. The court may, in the exercise of a wide discretion, decide it would be fair and just to estreat some or all of the recognisance.

[37] To a similar effect are the reasons of Hoffman LJ, also in ex parte Lever, at p. 41:

The court has a broad discretion to remit the forfeiture of all or part, but the burden is upon the surety to satisfy the court that this is what the justice of the case requires.

In considering the justice of the case, the lack of culpability of the surety and the negligence of the police were matters to be taken into account.

[38] This same approach has been adopted in other countries. For example, in Baytieh v. State of Queensland, [1999] Q.C.A 466, at para. 12, the Queensland Court of Appeal held that it will only be in rare circumstances that the entire amount of the recognizance would be forgiven, “given the importance of ensuring the integrity of the surety system”. But, the court agreed that the surety’s degree of fault was a relevant consideration: para. 13. Other considerations that the court found to be relevant included financial hardship experienced after the recognizance was entered into and the reasonableness of the surety’s expectation that the accused would comply with the bail conditions. The court otherwise considered that it would be unwise “to attempt a definitive statement of the considerations which may be relevant to this question”: para. 15. To a similar effect are decisions from New Zealand (R. v. Hopewell, in re Langford, [1958] N.Z.L.R. 523) and from the State of Victoria (Re Condon, [1973] V.R. 427; Mokbel v. D.P.P. (Vic) and D.P.P. (C’th) (2006), 14 V.R. 405).

[39] Counsel also referred us to a number of authorities from the United States that have dealt with the forfeiture issues. However, I did not find these authorities of assistance given the very different bail system in that country.

The “Pull of Bail”

[40] For the purposes of this case, the most important point that comes from the English cases is what is referred to as the “pull of bail”. In ex parte Lever, at pp. 38 & 41, Butler-Sloss and Hoffman L.J.J. referred with approval to the following statement from Lord Widgery C.J. in R. v. Southampton Justices, ex parte Corker (1976), 120 S.J. 214, as quoted from the full transcript contained in R. v. Uxbridge Justices, ex parte Heward-Mills, [1983] 1 All E.R. 530, at p. 532 :

The real pull of bail, the real effective force that it exerts, is that it may cause the offender to attend his trial rather than subject his nearest and dearest who has gone surety for him to undue pain and discomfort.

[41] I agree that the “pull of bail” is an important factor that serves as a reminder that, in attempting to do what is just and fair towards the sureties, the courts must be careful not to undermine the effectiveness of the bail system. 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. The applicant submits that, in order to avoid such a result, the degree of fault attributable to a surety for an accused who has breached the terms of the recognizance should not play a role in determining the amount of the recognizance that should be forfeited.

[42] Courts in Canada that have adopted a broad discretionary approach have referred to a number of factors in considering whether to relieve against forfeiture. The reasons of Durno J. in R. v. Nguyen, [2007] O.J. No. 5321, at para. 12, contain a list of the factors courts have taken into account on forfeiture applications.

[43] In considering what the appropriate test on a forfeiture application is, I recognize the preeminent importance of preserving the “moral pressure” (Trotter at p. 460) or “pull of bail”, so as to ensure that the accused complies with the bail conditions, especially the condition that the accused appear in court or surrender into custody as required.

[44] However, despite the importance of the “pull of bail”, I do not agree with the Minister and the Crown intervenors that the only way to ensure the effectiveness of the system is to adopt a rigid rule of total forfeiture absent exceptional circumstances. Such an approach is inconsistent with the broad discretion implied by the words of s. 771(2): “may … in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper” (emphasis added).

[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.

[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. Statistics gathered by the Public Prosecution Service seem to support this approach. Those statistics show that in a period of just over a year there was total forfeiture in approximately 93 percent of all surety bails for which the Crown sought forfeiture. Most of these recognizances were in amounts of $5,000 or less. The statistics do not reveal whether the sureties attended the forfeiture hearings.

[47] Three further concerns also lead to the conclusion that the diligence of a surety is a relevant consideration in forfeiture hearings. First, the right to reasonable bail is a constitutional guarantee, and as sureties have become an integral part of the bail system and an important means of ensuring that constitutional imperative (see Trotter at pp. 277, 283-84; R. v. Dodson (2000), 2000 CanLII 5623 (ON CA), 142 C.C.C. (3d) 134 (Ont. C.A.), at para. 43), we should avoid an approach that would unduly discourage sureties from coming forward. There may now be an over reliance on sureties. Thus, see the comments of Professor Friedland in “Criminal Justice in Canada Revisited” (2004), 48 C.L.Q. 419 at 433-34:

The present system is, however, not working well in Ontario. The pendulum has swung too far in the direction of requiring sureties rather than using release on one’s own recognizance. In England, sureties are required in only a small fraction of the cases. About two thirds of those who appear for a bail hearing in Toronto today are required to find sureties and only about half of this number are actually released. The other half, it appears, could not find acceptable sureties. Less than 10% held for a bail hearing are released on their own undertaking or recognizance.

What appears to be happening is that the requirement to find sureties has taken the place of cash bail as a method of holding accused persons in custody. The majority of persons who are caught up in the criminal justice system, many of whom are not from the community where they are arrested, have difficulty finding sureties.

[48] Be that as it may, without sureties more accused could be detained pending trial or appeal: Millward at para. 26. The court must not be so inflexible in their exercise of discretion that responsible sureties are discouraged from coming forward. That could well be the case if the surety’s due diligence were considered to be irrelevant. In other words, the focus on the forfeiture application cannot be solely on the impact of forfeiture on the accused. Sureties are expected to supervise the accused; it is unreasonable and unfair to completely ignore their efforts on a forfeiture hearing.

[49] Second, while forfeiture proceedings have some similarity to civil proceedings, the proceedings are part of the criminal justice system and the court cannot lose sight of the fact that the ultimate enforcement procedure, even if seldom invoked, is imprisonment. It would be unjust to ignore the degree of fault attributable to a surety when there is a possibility that they could be imprisoned.

[50] Third, sureties rarely receive independent legal advice, as they would when entering into similar obligations in a civil context. The sureties may have a very limited understanding of the extent of their obligations. Principles relating to enforcement of guarantees in the civil context are of limited assistance in understanding how the forfeiture process should operate in the criminal context.

[51] On the other hand, 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. A review of the cases does, however, show that there are categories of factors that the courts regularly take into account, including: the amount of the recognizance; the circumstances under which the surety entered into the recognizance, especially whether there was any duress or coercion; the surety’s diligence; the surety’s means; any significant change in the surety’s financial position after the recognizance was entered into and especially after the breach; the surety’s post-breach conduct, especially attempts to assist the authorities in locating the accused; and the relationship between the accused and the surety.

[52] Before turning to the particular applications at issue in this matter, I would make three remarks relevant to forfeiture proceedings generally. As noted above, the onus is on the surety to show why full forfeiture of the recognizance should not be ordered. The circumstances relevant to the exercise of the court’s discretion to relieve against full forfeiture are largely within the knowledge of the surety. Sureties asserting that they should be relieved from forfeiture of any amount of the recognizance have the obligation to adduce credible evidence to support their position. The courts should also take into account that the Crown will often not be in a position to adduce evidence to refute those claims.

[53] Second, when hearing forfeiture applications, courts should remember that a bail order is a court order, and it is not open to the surety to mount a collateral attack on the appropriateness of that order. There was some hint of this approach in the Mirza case, the suggestion being that the $500,000 surety was out of proportion to the nature of the fraud and was excessive. There were procedures in place that Adnan or his sureties could have utilized if they considered the order to be inappropriate. Adnan could have sought review of the order. Additionally, of course, the Mirzas were not required to enter into the recognizance, and even after having done so they could have applied to be relieved as sureties in accordance with ss. 766 and 767 of the Criminal Code.

[54] Finally, it appears that it is open to the court to make a conditional order that the recognizance be forfeited unless the accused is taken into custody by a certain date: see Miller.

C. APPLICATION

I. Erika Horvath

[55] Supervision of the accused Mr. Horvath fell primarily upon his wife, Erika Horvath. She lived with him and was in the best position to ensure that he complied with the conditions of his bail and surrendered as required. She was also the only person who would be aware of any indications that he would not surrender. Her conduct on the date of Mr. Horvath’s surrender is highly suspect. While she claims to have driven the accused to the jail, she admits that she did not actually see him enter the jail and surrender. She made no effort to assist the authorities in locating her husband. As well, her financial situation has not worsened since she entered into the recognizance; in fact, her situation is somewhat better at this time. Mrs. Horvath has not shown any circumstances that would justify refusing to forfeit the entire amount of the recognizance.

[56] Moreover, developments while this matter was under reserve further support forfeiture of the entire amount. The court was informed that Mr. Horvath had been captured and returned to custody on August 19, 2009. On that day, Ms. Horvath was observed leaving her residence in a vehicle. A second vehicle left five minutes later. The fugitive, Mr. Horvath was discovered in that second vehicle. The vehicle was registered to Ms. Horvath. At the time of his apprehension, Mr. Horvath was in possession of a fraudulent Ontario driver’s licence issued in May 2009 and a fraudulent Hungarian passport issued in December 2008. Mr. Horvath had been unlawfully at large since March. 2008.

[57] The court invited further written submissions as to what effect, if any, Mr. Horvath’s apprehension should have on the orders to be made against Ms. Horvath and the other surety, Mr. Vilmos Balint.

[58] Counsel for Ms. Horvath did not submit that Mr. Horvath’s capture should necessarily have any impact on the order to be made against her. He submitted, however, that the court “may need to hear further evidence from Erika Horvath” before deciding whether Mr. Horvath’s apprehension should affect the order against Ms. Horvath.

[59] I do not agree. As explained above, Ms. Horvath has the onus to show why the recognizance should not be forfeited. She has had a full opportunity to discharge that onus both in the initial hearing and by way of a affidavit had she so chosen subsequent to her husband’s apprehension. Mr. Horvath has not placed any further evidence before this court and it is not for the court to seek out further information.

[60] In keeping with an approach which favours a broad consideration of all relevant factors, I accept that the apprehension of the fugitive is relevant to the determination of what order, if any, should be made against the sureties in an estreatment proceeding. The effect of the impact of the fugitive’s apprehension will depend on the specifics surrounding that apprehension and a consideration of the other factors identified in these reasons.

[61] The circumstances surrounding Mr. Horvath’s apprehension strongly suggest that Ms. Horvath was culpably acquiescent, if not complicit, in Mr. Horvath’s attempt to defeat the course of justice for the year and a half that he was unlawfully at large. Those circumstances provide further justification for an order requiring that Ms. Horvath forfeit the entire amount of the recognizance.

[62] I would order that Mrs. Horvath forfeit the entire amount of $60,000.

II. Vilmos Balint

[63] Mr. Balint exercised some supervision over Mr. Horvath but, on the day the accused was to surrender, he left it to Mrs. Horvath to ensure that Mr. Horvath surrendered. Mr. Balint made some, although hardly robust, efforts to try and locate the appellant after he failed to surrender.

[64] The most significant circumstance in Mr. Balint’s case is that he suffered a serious business reversal after Mr. Horvath failed to surrender. Most of Mr. Balint’s income comes from a company that provides commercial cleaning and maintenance services for residential high-rise buildings. In June 2008, he lost his major contract, with the result that he lost most of his income. While there is equity in his home sufficient to cover the entire $60,000, he would have to sell his home if the entire amount was ordered forfeited since, given his present financial circumstances, he would not be able to obtain a second mortgage.

[65] Counsel for Mr. Balint submits that the apprehension of Mr. Horvath should be a significant factor in determining what order should be made against Mr. Balint. He submits that the Crown usually withdraws estreatment applications if an accused is captured before those proceedings are completed.

[66] Mr. Balint had nothing to do with the apprehension of Mr. Horvath. Nor is there anything to suggest that he made any attempt to assist Mr. Horvath while he was unlawfully at large. The apprehension of Mr. Horvath does, however, make this more a case of justice delayed than justice defeated. Adding Mr. Horvath’s apprehension to the mix of the relevant considerations merits some mitigation of the forfeiture order. I would order that Mr. Balint forfeit $20,000.

III. Farida and Amir Mirza

[67] The circumstances on the day the accused Adnan Mirza was to surrender were at least unusual, and by mid-day had aroused his parents’ suspicions. Yet, apart from a somewhat belated application by Farida to be relieved of her obligations as a surety, they did nothing to alert the authorities of their suspicions and failed to assist the authorities in attempting to locate the accused. They also failed to exercise diligence in ensuring that the accused complied with the term of his recognizance requiring him to notify the court of a change of address. In favour of the Mirzas is that Farida actually moved in with Adnan and his family so as to better supervise him, and when Adnan and his wife split up, Farida and Amir arranged for Adnan to live with them. On balance, there is little in the conduct of the Mirzas that favours much reduction in the amount to be forfeited.

[68] However, that is not the end of the story. The circumstances that led to Farida and Amir entering into a $500,000 recognizance are unusual and hopefully unique. The $500,000 amount originated in the bail hearing in the Superior Court of Justice when Adnan was first arrested under the provisional extradition warrant. The judge set that amount in the face of evidence that the Mirzas’ only substantial asset, their home, had equity of only $120,000.

[69] When Adnan applied for bail before this court, Farida and Amir swore affidavits in support of the application asserting that they had approximately $289,000 in equity in their home. In doing so, they claimed that the house, which was purchased for $400,000 in 2004, had a market value of $650,000. They said that there was a mortgage in the amount of $361,000, and failed to disclose that they had placed another mortgage on the home of about $85,000.

[70] They now assert that the market value of their home has declined precipitously to $499,000. They also assert that in June 2008 they consolidated the first and second mortgages for a total amount of $488,000, all but wiping out their equity in the home. In short, the Mirzas have been less than candid in this court and have adjusted the value of their home depending upon their purpose. When it suited their purpose, the house was alleged to have a very high value. Now that it is not in their interest, the equity in the home has evaporated. At no point have they offered any independent expert opinion to support the market value of their home.

[71] In my view, this is a case where there must be a substantial forfeiture. The sureties knew that there was a serious risk that Adnan would flee; in fact, he had already done so once in the United States. In the circumstances, one would have expected them to be especially vigilant in ensuring that all of the conditions of the bail were satisfied, particularly on the date that Adnan was to surrender into custody. Yet, they did not ensure that the court was notified of the change of address, and they allowed Adnan to leave their home early on the day he was to surrender in a car borrowed from someone that they barely knew. This is the kind of case where the importance of preserving the “real pull of bail” is of significant importance.

[72] I also find the Mirzas’ claims concerning the current value of their home to be incredible. In my view, their assertions about the value of the home when they sought Adnan’s release in this court must carry significant weight. That said, forfeiture of the entire $500,000 is unreasonable and unnecessary. It is unreasonable because the Mirzas have never claimed to have assets anywhere near $500,000. They also have a very limited ability to earn income. There is no contest that Amir’s income as a salesman has suffered considerably as a result of his age and the current economic conditions. Full forfeiture is unnecessary because a substantial but partial forfeiture will adequately ensure the integrity of the bail and surety system. I would order that the Mirzas forfeit the amount of $180,000 unless the accused is taken into custody within 15 days of the release of this judgment. If the accused is taken into custody within 15 days, the sureties may apply in writing for relief from all or part of this order.

IV. Information for Sureties

[73] Many of the counsel in this case, especially counsel for the Criminal Lawyers’ Association (Ontario) and the Public Prosecution Service of Canada, expressed concern about the information that potential sureties are given. There is information on a website maintained by the Attorney General for Ontario about the duties of sureties, and a pamphlet containing the same information is available at courthouses. This information is helpful and is expressed in plain language. It is unclear whether the pamphlet is provided to sureties as a matter of routine.

[74] Despite the large amounts that may be involved, sureties rarely obtain independent legal advice. The accused’s lawyer cannot give such advice because counsel’s interests are aligned with the client, who naturally is anxious to be released from custody. It would helpful if the justice of the peace before whom sureties appear to enter into a recognizance were to provide the sureties with a simple caution that outlined in clear and concise terms the nature of their obligations. The Public Prosecution Service of Canada has offered a sample Surety Caution that could be used for that purpose. I have attached this sample form as an Appendix to these reasons. If the authorities propose using such a form it would, of course, have to be modified to take into account these reasons. I refer in particular to the paragraph describing the consequences of a breach.

DISPOSITION

[75] Accordingly, I would allow the applications in part and order forfeiture of the following amounts:

Erika Horvath: $60,000.

Vilmos Balint: $20,000.

Farida and Amir Mirza: $180,000, unless the accused is taken into custody within 15 days of the release of this judgment. If the accused is taken into custody within 15 days, the Mirzas may apply in writing for relief from all or part of this order.

[76] On behalf of the court I would like to thank all counsel for their submissions, and especially thank counsel for the Public Prosecution Service of Canada and the Minister of Justice Canada who arranged to obtain statistics concerning bail forfeiture applications in the Superior Court of Justice.

Signed: “M. Rosenberg J.A.”

“I agree Doherty J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree Janet Simmons J.A.”

“I agree Robert P. Armstrong J.A.”

RELEASED: “DD” October 20, 2009

APPENDIX “A”

SURETY CAUTION

Name:

[name of surety]

THE ACCUSED’S PRESENT CHARGES

I understand that [the accused] , who is my

Accused] has been charged with the following criminal offence(s):

[relationship to

[list of charges]

I am asking to be [the accused]’s surety. This means I am responsible for his/her behaviour once he/she is released from jail, until the charges are concluded. I understand that I do not have to be a surety. It is my free choice to make this promise and take on these obligations.

RESPONSIBILITIES OF A SURETY

I understand that by becoming a surety, I am guaranteeing to the Court that __ [the Accused] will:

A come to court as required;

B. obey all of the conditions of the bail; and

C. not commit any criminal offences while on bail.

OBLIGATIONS OF A SURETY and CONSEQUENCES OF BREACH

I understand that I am promising to pay the full amount of the bail $ , if [the accused] does not attend court as required or if he/she does not comply strictly with a term of bail or if he/she commits an offence while on bail.

I understand that it is my responsibility to prevent any of these things from happening but that if they do happen, l owe the court the amount of bail I have pledged which is $ ,_____ regardless of whether or not I supervised the accused to the best of my ability.

IF I WANT TO STOP BEING A SURETY

I understand that the law allows me to stop being a surety at any time. I can do this by:

1. applying to a court, justice or provincial court judge to be relieved of my obligation under the recognizance (bail); or

2. bringing [the accused] to the court at which he is required to appear at any time that the court is sitting; or

bringing [the accused]

to any police station.

I read and understand the English language. _[surety's initials]

I require the assistance of a [language] interpreter and that assistance has been provided to me for the purposes of translating and completing this form. _[surety's initials]

Signed. by

on this ______ day of

_____ , 2009 at

Witnesses by:

Justice of the Peace