ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-66
DATE: 2014/01/07
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JULIE BILOTTA
Andre White, counsel for the Crown
Eric Granger, counsel for the Accused
HEARD: January 6th, 2014
reasons for judgment
LAFRANCE-CARDINAL, J.
[1] The Crown seeks forfeiture of a $5,000.00 bond given by the accused on a recognizance of bail dated April 26th, 2012. Counsel for the accused argues that the bail estreatment should fail for two reasons:
a) The Certificate of Default (Form 33) has not been signed by the Judicial Officer. The Clerk simply wrote the Judge’s name below the signature line;
b) The nature of the default on Form 33 is noted as “fail to comply” and defence argues that this endorsement fails to meet the statutory requirements.
[2] Defence further argues that if the bail estreatment hearing proceeds, irregardless of the two technical difficulties with Form 33, that the Court should use its discretion in reducing the amount to be forfeited to Her Majesty the Queen to take into consideration the accused’s personal circumstances.
The Facts
[3] The accused entered into a recognizance of bail on April 26th, 2012 where she posted a $5,000.00 bond. The surety, Stacey-Ann Huff, also posted a $5,000.00 bond on the same day. The surety did cooperate with the investigating officer providing them with a statement setting out her involvement with Miss Bilotta and her non-compliance with the bail conditions imposed on her release. The Crown is not seeking estreatment of the $5,000.00 which the surety has posted.
[4] The surety in her statement indicates that Miss Bilotta failed to abide by the conditions of her release in that:
a) She failed to reside with her at 4 Baldwin Avenue, Apt #4, Cornwall;
b) She failed not to be away from her residence except in the company of her surety.
[5] On May 2nd, 2013 Julie Bilotta entered pleas of guilt to offenses all occurring in August of 2012 namely:
a) Using forged cheques as though they were genuine;
b) Defrauding Scotia Bank of money by uttering forged cheques;
c) Defrauding the Cash Store of money;
d) Failing to comply with recognizance of bail to reside with her surety, to abiding by the rules of the residence and notifying Akwesasne Police Services within 24 hours of any change of residences;
e) Failing to comply with the recognizance of bail that is failing not to be away from her residence except in the presence of her surety;
f) Defrauding Robert Orr of $750.00.
[6] When committing the above offenses, Julie Bilotta was subject to her release conditions as set out in her recognizance of bail dated April 26th, 2012.
[7] On May 2nd, 2013 the Ontario Court Judge adjourned the sentencing to May 9th, 2013. On that sentencing date, Mr. Greenspon acting for Miss Bilotta, acknowledged that the plea judge had jurisdiction to deal with the estreatment by endorsing a Form 33 (Certificate of Default) and that he had no objection to that being endorsed. The Judge further states:
“I have satisfied myself with the information and I’m in agreement with you Mr. White. I’m prepared to endorse the recognizance of bail in the fashion you requested at which point in time, things move over to the next phase and you’ll be able to deal with it accordingly.”
Form 33
[8] Form 33 was filled out on May 9th, 2012 as per the Judge’s instructions of that day. The form is not signed, the question becomes: does it negate the Certificate of Default? It does not. Does the “fail to comply” as the nature of the Default render it a nullity? It does not in this particular case and it is distinguishable from the case of R. v. Gabrielson [1991] O.J. 196. In our case, the accused was present, she was sentenced that day amongst other charges to 2 failed to comply, her lawyer was also present. He specifically consented to Form 33 being signed by the sentencing Judge. The record is clear. I have had the benefit of reviewing the transcript of May 9th, 2013 and I am satisfied that all were aware of the reasons for the default. There was extensive discussion on May 2nd, 2013 as to whether or not the sentencing Judge should sign Form 33 and on the return date of May 9th defence counsel conceded having reviewed Section 770 of the Criminal Code and invited the Judge to sign Form 33. The record by way of a transcript has been signed by the sentencing Judge, where he makes a finding of default and indicates the Clerk will prepare the paper work. The signing of the Certificate of Default would be a mere formality and does not render the Certificate of Default a nullity. The same reasoning applies to the nature of the default, the inscription was but a formality, the substance is found in the record of the Court proceedings, the proceeding where the accused and her lawyer were present. They were not prejudiced in any way by the lack of compliance by the Clerk in properly filling out Form 33.
Court’s discretion
[9] Section 771(2) of the Criminal Code provides:
“The judge may, after giving the parties an opportunity to be heard, in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper.”
[10] The onus is on the accused to establish why an order for the full amount pledged should not be ordered. (R. v. Horvath 2009 ONCA 732 @ p.5).
[11] All of the cases provided to the Court by defence relates to sureties and the reduction of the bail estreatment taking into consideration the surety’s diligence, the surety’s post-breach conduct etc. None of those considerations apply to Miss Bilotta.
[12] The accused, Miss Bilotta, has not given the Court any independent evidence as to her financial means or any argument as to why the full amount should not be estreated. She is the one who continued to commit crimes while being on a recognizance of bail. Most crimes were committed less than 4 months after being released on bail. She knew she had personally pledged $5,000.00 and that she would be made accountable for that money. She has not met her onus. The full amount of $5,000.00 is therefore estreated to Her Majesty the Queen.
Madam Justice Lafrance-Cardinal
Released: January 7th, 2014
COURT FILE NO.: 13-66
DATE: 2014/01/07
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JULIE BILOTTA
REASONS FOR JUDGMENT
Madam Justice Lafrance-Cardinal
Released: January 7th, 2014