Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240313 DOCKET: M54479 (C69109)

Roberts J.A. (Motions Judge)

BETWEEN

His Majesty the King Respondent (Moving Party)

and

Nehemiah S. Campbell Appellant (Responding Party)

Counsel: Kristen Pollock, for the moving party, His Majesty the King Michael Smith, for the responding parties, Greg Carter, Anwar Faza, and Sandre Bascoe No one appearing for the responding party, Nehemiah Campbell

Heard: February 28, 2024

Endorsement

[1] Nehemiah Campbell failed to surrender for the hearing of his appeal on October 20, 2022, as required by the terms of his release order. He is still unlawfully at large. The Crown moves under s. 771 of the Criminal Code, R.S.C. 1985, c. C-46 for forfeiture of the monies pledged by Mr. Campbell and at least half of the monies pledged by his three sureties: Greg Carter, Anwar Faza, and Sandre Bascoe. Mr. Smith takes no position regarding the forfeiture of the monies pledged by Mr. Campbell. He submits that the application should be dismissed with respect to the three sureties, because they fully and properly discharged their obligations as Mr. Campbell’s sureties.

[2] On March 27, 2019, Mr. Campbell was convicted of various firearm offences and failure to comply with his recognizance, and on June 10, 2021, he was sentenced to eight years in custody less presentence custody. He appealed his conviction and first obtained interim judicial release on June 11, 2021. His release order was extended on September 8 and December 9, 2021, and on April 8 and October 5, 2022. There were no incidents of breach until his failure to surrender.

[3] The October 5, 2022 release order required Mr. Campbell to pledge $20,000, depositing $16,000, and to surrender on the morning of the hearing of his appeal, namely, on October 20, 2022. According to the affidavit of his residential surety, Mr. Carter, on October 19, 2022, at around 9:30 a.m., he went to check on Mr. Campbell and discovered that he was not in his room. Mr. Carter immediately called the other sureties, Mr. Campbell’s lawyer, and the police to report Mr. Campbell’s absence. Ms. Bascoe also called Mr. Campbell’s lawyer and the police to report Mr. Campbell’s absence.

[4] On October 20, 2022, Mr. Campbell’s appeal was dismissed as abandoned due to his failure to surrender into custody in breach of his release order. A warrant for Mr. Campbell’s arrest was signed on October 26, 2022. On September 18, 2023, this court endorsed Mr. Campbell’s default.

[5] For the reasons that follow, I allow the Crown’s application for forfeiture of the entirety of the monies pledged by Mr. Campbell, Mr. Carter and Mr. Faza, and half of the monies pledged by Ms. Bascoe.

[6] With respect to Mr. Campbell, there is no dispute that he failed to appear when required in breach of his release order. There is also no question that the release order clearly provides that he is at risk of forfeiting his pledge if he fails to surrender as required. There is no reason not to order that his $20,000 pledge be forfeited in its entirety.

[7] With respect to the three sureties, I start my analysis with reference to the governing principles on this application.

[8] First, the purpose of bail and the sureties’ role were helpfully and recently summarized by Lauwers J.A., sitting as a motion judge, in R. v. Biya, 2022 ONCA 99, at para. 14, as follows:

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: Canada (Minister of Justice) v. Horvath, 2009 ONCA 732, 255 O.A.C. 109, 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.”

[9] The court has a wide discretion to grant or refuse the application for forfeiture and to make any order with respect to forfeiture that it considers proper, including partial forfeiture: Criminal Code, s. 771(2); Horvath, at para. 5. As this court observed in Horvath, at paras. 45-46, “[t]he pull of bail can sometimes be vindicated by something less than total forfeiture”, especially in cases involving substantial sums, although, “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.”

[10] Relevant considerations informing the court’s discretion include but are not limited to:

1. 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;
2. the sureties’ intended roles in the supervision where more than one surety signs;
3. the amount of the recognizance;
4. the circumstances in which the surety entered into the recognizance, especially whether there was any duress or coercion;
5. the surety’s diligence;
6. the surety’s means;
7. any significant change in the surety’s financial position after entering into the recognizance, especially after the breach;
8. the surety’s post-breach conduct, especially the surety’s attempts to help the authorities find the appellant; and
9. the relationship between the appellant and the surety.

[11] See Horvath, at para. 51; R. v. Griffiths, 2019 ONSC 4044, at para. 31; Biya, at para. 16.

[12] At a forfeiture hearing, the onus is on the surety to show why the full amount of the recognizance should not be forfeited: Horvath, at para. 27. There is no right of appeal from a forfeiture order made under s. 771 of the Criminal Code: Horvath, at para. 26.

[13] Applying these principles to the present case, I note, first, the circumstances that all three sureties have in common:

1. they are all friends of Mr. Campbell, and there is no evidence that they were under any duress or coercion to enter into their pledges;
2. they have acted as sureties for Mr. Campbell on unrelated matters;
3. they have pledged the same amounts in issue on this application since the original release order dated June 11, 2021;
4. they have acknowledged their duties and responsibilities as sureties on five occasions, including the initial June 11, 2021 release order;
5. in their affidavits filed in support of the original release order and in the original release order and subsequent extensions, they all agreed that they were at risk of losing their entire pledge if Mr. Campbell breached any of the terms of the release orders;
6. other than the statements that they have been in regular contact with Mr. Campbell, there are no particulars of what “regular contact” meant or evidence of any other efforts to ensure that Mr. Campbell comply with the terms of the release orders, specifically, in the days leading up to the date for Mr. Campbell’s surrender;
7. there is no evidence that they offered any assistance or information to the police to try to locate Mr. Campbell; and
8. there is no evidence of any change in their financial means and whether the forfeiture would cause hardship to the sureties.

[14] Mr. Carter has known Mr. Campbell since 1997. He has acted as Mr. Campbell’s residential surety since the October 5, 2022 release order. Mr. Carter pledged $50,000. According to the release order, Mr. Campbell was required to remain in Mr. Carter’s residence from 11 p.m. to 6 a.m., unless he was in the presence of a surety. Importantly, there is no evidence that Mr. Carter made any efforts to ensure that Mr. Campbell complied with his curfew or that he checked to ensure that Mr. Campbell was in his room the day before he absconded. There is no explanation as to why Mr. Carter only discovered that Mr. Campbell was not in his room at 9:30 a.m. on October 19, 2022, and why he did not hear Mr. Campbell leave the residence. Given the importance of Mr. Campbell surrendering on October 20, 2022, it was incumbent on Mr. Carter as his residential surety to be vigilant in his supervision of Mr. Campbell in the 15 days following the October 5, 2022 release order leading up to the surrender date. Mr. Campbell’s compliance with the release order in the past does not excuse a lack of vigilance on the part of Mr. Carter. I also note that other than calling the other sureties, Mr. Campbell’s lawyer, and the police, there is no evidence that Mr. Carter offered any other assistance to the police to try to locate Mr. Campbell. Although Mr. Carter deposed that he was aware that Mr. Campbell was working with his father, there is no evidence that he gave this information to the police or tried to call Mr. Campbell’s father. The evidence suggests that Mr. Carter is affluent, and there is no evidence that the forfeiture would create hardship for him.

[15] Mr. Faza lives in Dubai. He has known Mr. Campbell for at least 15 years. He pledged $10,000. Importantly, there is no evidence of any efforts by Mr. Faza in the few days before Mr. Campbell’s absconding to ensure that he was abiding by the terms of the release order, including surrendering when required. There is no evidence of any efforts to call anyone once Mr. Faza was notified by Mr. Carter of Mr. Campbell’s absence, nor of any assistance provided to the police to try to locate Mr. Campbell. Mr. Faza appears to be employed and there is no evidence that forfeiture of the $10,000 pledged would cause hardship to him.

[16] Finally, I consider Ms. Bascoe’s circumstances. She has known Mr. Campbell for at least 13 years. She pledged $10,000. Like the other sureties, there is no evidence of any effort made to ensure Mr. Campbell would surrender when required. While she also made calls to Mr. Campbell’s lawyer and the police upon learning of his absence, there is no evidence that Ms. Bascoe rendered any assistance to the police or made any other efforts to locate Mr. Campbell. With respect to Ms. Bascoe’s financial circumstances, in her June 4, 2021 affidavit filed in support of the June 11, 2021 release order, she deposed that she is unemployed, but that she still had personal savings of nearly $10,000 to pledge and could borrow the remaining amount from family. Although she provided an affidavit following the breach, there is no information concerning her present financial circumstances. That said, based on her 2021 circumstances and her limited financial means, forfeiture of her pledge in its entirety would likely cause hardship to her. Half of her pledge would vindicate the pull of bail.

[17] In my view, the three sureties have failed to exercise the requisite level of diligence and supervision with respect to Mr. Campbell and failed to make adequate efforts to locate him or to assist the police in locating him following his breach. As a result, they have failed to meet their onuses to persuade me that forfeiture of their pledges should not be ordered. In the circumstances of this case, nothing less than complete forfeiture would vindicate the pull of bail for Mr. Campbell and Mr. Faza. However, forfeiture of 50% of Ms. Bascoe’s pledge is sufficient.

Disposition

[18] Accordingly, I allow the application as follows:

1. Mr. Campbell’s $20,000 pledge is forfeited in its entirety.
2. Mr. Carter’s $50,000 pledge is forfeited in its entirety.
3. Mr. Faza’s $10,000 pledge is forfeited in its entirety.
4. $5,000 of Ms. Bascoe’s $10,000 pledge is forfeited.

“L.B. Roberts J.A.”