ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 599/13
DATE: 20131218

B E T W E E N:

HER MAJESTY THE QUEEN

Peter Maund, for the Applicant/Crown

Respondent

• and -

JEROME JACKSON

And

Applicant for Relief

CLIVE JACKSON

KAREN HENDERSON

Surety Applicants for Relief

HEARD: November 28, 2013

RULING ON CROWN’S ESTREATMENT APPLICATION

DURNO J.

1On May 24, 2013, Jerome Jackson was released from custody after a contested bail hearing at which Clive Jackson, Shantea Reid and Karen Henderson testified in support of the accused. The recognizance was in the amount of $25,000 with his father, Clive Jackson and his partner, Karen Henderson, as sureties without deposit. Jerome Jackson was required to attend court, “live with surety,” and amongst other conditions, “remain in your residence at all times except to and from employment purposes in the presence of Shantea Reid or in the presence of your surety or in the presence of Shantea Reid.”

2On August 23, 2013, Jerome Jackson was to appear in the Superior Court Assignment Court. When his name was called a woman who identified herself as Shantea Reid came forward and identified herself as one of the sureties. She said he was at 22 division with his father who was the other surety and that Jerome Jackson’s lawyer had asked the matter be adjourned to August 28, 2013, with a warrant with discretion. He was remanded to that date at 9:00 a.m.

3On August 28, 2013, no one appeared, a bench warrant was issued and the bail noted for estreat.

4On November 13, 2013, the sureties, Clive Jackson and his partner Karen Henderson appeared for the estreat hearing. The accused did not and I was advised that he had not been arrested on the warrant. Notice had been sent to the address where the accused was required to live. I noted estreatment in the full amount in relation to Jerome Jackson.

5The sureties said that they had attended court on August 23 and spoke to someone who told them a warrant would not be issued. Later, Mr. Jackson said he had attended in court and spoke to the presiding judge. The recording of the court proceedings does not reveal Mr. Jackson appearing in court, only Ms. Reid who, while not a surety, was noted as assisting in the supervision of the accused.

6On November 29, 2013, further submissions were heard. It appears that on August 22, the police came into contact with Jerome Jackson in what Mr. Muand referred to as similar circumstances to his arrest that led to the recognizance being dealt with in these reasons. I infer that at that time, police saw what they believed was a hand to hand drug sale involving Jerome Jackson, and were about to arrest him when he fled in his mother’s car that he had stolen from her, police gave up or did not start the pursuit for public safety reasons and Jerome Jackson has never been arrested. His whereabouts are unknown. He was not at 22 Division on August 23.

7The police called his home and his father at work to attempt to locate him with no success. The next day, his next scheduled court appearance, he failed to appear but Ms. Reid did as noted earlier. As I understand it, one of her tasks was to drive Jerome Jackson to work.

8Clive Jackson said he got up for work on August 22, saw Jerome in bed and left for his job in Barrie. While there, he got a call from police looking for his son. He returned home and had already planned to take the next day off to take his son to court. On August 23, the sureties went to court and then tried to withdraw as sureties on the Saturday but were told they had to do so on Monday because the bail was issued out of the Superior Court.

9Ms. Henderson was in a serious motor vehicle accident before becoming a surety and was at Sunnybrook Hospital when she got the call the police were looking for Jerome. She finished at the hospital and went home. She has not seen Jerome since. Neither, has she seen Shantea Reid. Both have apparently disappeared. Ms. Henderson also said there was an error in the recognizance as the justice of the peace had said $15,000 and not $25,000. She said she raised it when signing but did nothing further to pursue the matter. The transcript of the bail hearing shows the amount set was $25,000.

10The sureties say they did everything in their power to supervise Jerome and as soon as they knew he was in further trouble they revoked the bail. Mr. Jackson works in a steel factory in Barrie and earns roughly $30,000 annually. When he testified at the bail hearing he said it was $40,000 to $50,000. He supports Ms. Henderson and three children. Ms. Henderson is unable to work because of the accident but owns her home with roughly $30,000 equity.

11Mr. Maund, for the Crown, says that given Jerome Jackson’s criminal record that more supervision was required. In addition, even if they did everything in their power to supervise there must be some amount payable. Otherwise there will no incentive for accused persons to comply for fear of their sureties losing money if all that is required to totally relieve from forfeiture is a finding the surety did all that could be done.

Analysis

12There are three questions to be determined:

1. Did the sureties adequately supervise Jerome Jackson?

2. If they did not, what amount should be forfeited?

3. If they did, should any amount be forfeited and if so, how much?

13Pursuant to s. 771(1)(b) of the Criminal Code sureties are notified to attend estreat court “to show cause why the recognizance should not be forfeited.” Accordingly, the sureties bare the onus of showing why the order should not be made in the full amount. It is not for the Attorney General to prove there should be forfeiture. Canada (Minister of Justice) v. Mirza (2009), 2009 ONCA 732, 71 C.R. (6th) 114 (Ont. C.A.) at para. 27. In the circumstances, the onus would be on a balance of probabilities.

14The Criminal Code 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 forfeiture of the recognizance that he considers proper. s. 721(2). Accordingly, whether to grant relief from forfeiture is within the discretion of the presiding judge.

15The Court of Appeal addressed what occurs after an order is made as follows:

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.

16In Mirza, the Court of Appeal set out a series of factors to be considered in determining whether there should be forfeiture and in what amount. They are:

i) the amount of the recognizance, here $25,000;

ii) the circumstances under which the surety entered the recognizance with particular emphasis on whether there was any duress or coercion;

iii) the sureties’ diligence;

iv) the sureties’ means;

v) any significant change in the sureties’ financial situation since entering the recognizance;

vi) the sureties’ post breach conduct including their efforts to help the authorities find the accused; and

vii) the relationship between the accused and the sureties which has already been noted.

17While I have serious reservations about the level of supervision, I am prepared to proceed on the basis that the sureties probably did what was expected of them. The Crown argued that more intensive supervision was required given Jerome Jackson’s record. Those concerns would be addressed in the amount of the recognizance and the terms imposed. It seems apparent that the justice of the peace was prepared to have Ms. Reid drive Jerome Jackson to work, that may be where the problem occurred. She worked with Jerome Jackson so there is a significant “missing chapter” from August 22 dealing with whether she picked up Jerome and took him to work or whether something else occurred.

18Ms. Henderson has significant limitations that were known when she signed as a surety. Mr. Jackson had gone to work and apparently relied on Ms. Reid to get Jerome Jackson to work. On the accounts I have, he was found committing a criminal offence and neither Jerome Jackson nor Shantea Reid have been seen since.

19While there was a view that sureties who were diligent and did nothing to contribute to the breach or the failing to appear should not be required to pay any part of the amount pledged, that approach has been laid to rest because of the `pull of bail described as follows by the Court of Appeal in Mirza:

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.

20Rosenberg J.A. recognized the preeminent importance of preserving the moral pressure … or ‘pull of bail,’ so as to ensure accused persons comply with the bail terms, especially those that require them to appear in court. at para. 43 He disagreed with the Crown’s submission that the only way to ensure the effectiveness of the system was to adopt a rigid rule of total forfeiture absent exceptional circumstances. That was inconsistent with the broad discretion implied in s. 771(2) noted above. at para. 44. The ‘pull of bail’ can be vindicated by something less than total forfeiture. Where the amount was large and would wipe out a surety’s equity something less would be sufficient. at par. 45 Where it was a relatively small amount, as occurs in the vast majority of cases, probably nothing less than the full amount would suffice to vindicate the ‘pull of bail.’

21Rosenberg J.A. noted three additional reasons that sureties’ diligence was important: first, to avoid an approach that would discourage sureties from agreeing to act, second, the ultimate enforcement procedure is imprisonment although it is seldom invoked, and third, sureties receive independent legal advice and may have a limited understanding of their obligations. at para. 47 – 50. However, the surety’s diligence is but one factor. The judge must balance all the factors.

22Applying those considerations, I find that an appropriate order, in relation to Clive Jackson, is $7,500; and Karen Henderson is $3,500. Mr. Jackson is employed and given time has the means to pay, was the accused man’s father and I find was the primary surety. He along with the justice of the peace was prepared to delegate part of the supervision to a person who was not a surety and who appears to have been complicit or at least negligent in her obligations. There is no evidence he has done anything to assist in locating his son. In addition, he says he was at the court house on Friday, August 23, yet did not try to apply to be removed as the surety until August 24. There is no explanation why he did not apply on Friday. Based on the need for the ‘pull of bail’ to have pre-eminence the order is for $7,500.

23As regards, Ms. Henderson her role was less than Clive Jackson, she has equity in her home, was also prepared to put her faith in Ms. Reid, and there is no evidence she has done anything to assist in finding Jerome.

Conclusion

24Forfeiture is ordered against Clive Jackson in the amount of $7,500. and Karen Henderson in the amount of $3,500.