ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140402

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

JEREMY NORMAN

Accused/Respondent

• and –

BRIAN NORMAN

Surety/Respondent

• and -

MARIE TONIE NORMAN

Surety/Respondent

Megan Scott for the Crown

No one appearing for Jeremy Norman

Daniel Santoro for Brian Norman

Angela Ruffo for Marie Tonie Norman

HEARD: January 10, 2014

TROTTER J.

INTRODUCTION

[1] The estreatment and forfeiture provisions of the Criminal Code are usually engaged when an accused person breaches bail by failing to appear in court. This case involves the breach of a house arrest condition.

[2] As a result of this breach, which was detected almost immediately by the police, the Crown seeks forfeiture of the $30,000 recognizance entered into by Jeremy Norman, and his sureties, Brian Norman (his father) and Tonie Norman (his mother). Brian Norman and Tonie Norman, who were once married to each other, are represented by counsel and resist the application. Jeremy Norman, while aware of the hearing, declined to participate.

THE FACTS

(a) Background

[3] On January 17, 2005, Mr. Norman received an 8-year prison term (after receiving credit for 4 years in pre-sentence custody) for manslaughter: see R. v. Norman, [2005] O.J. No. 1073 (S.C.J.), per Watt J. (as he then was).

[4] Mr. Norman was eventually released on parole and was living at a halfway house. On September 29, 2010, while he was still on parole, Mr. Norman committed a random and violent assault on a female stranger. Mr. Norman jumped a woman from behind, took her to the ground and punched her over 50 times. The police were called and Mr. Norman was apprehended. When the police arrived, Mr. Norman was very intoxicated. He was charged with assault causing bodily harm.[^1]

[5] Surprisingly, Mr. Norman was ordered released on bail on October 20, 2010. The learned justice of the peace ordered that Mr. Norman enter into a recognizance in the amount of $30,000. He named two sureties under s. 515(2.1) of the Criminal Code and the amounts for which they would be liable: Tonie Norman - $20,000 and Brian Norman - $10,000.

[6] The recognizance included eight conditions, a number of which attempted to address Mr. Norman’s very serious alcohol and drug problems (the latter of which was related to his manslaughter conviction). Unfortunately, a number of these conditions are carelessly or awkwardly drafted. The condition at the heart of this proceeding is the following:

6. House Arrest: be in your place of residence at all times seven days a week except: to go directly to and from and while at employment, counselling (including residential treatment), reporting to a parole officer, medical emergencies, or in the direct company of either surety.

I note that the recognizance does not identify Mr. Norman’s “place of residence.” However, the evidence on this hearing established that he was living with his mother at 2325 Bridletowne Crescent in Scarborough.

[7] The reasons of the learned justice who ordered the release of Jeremy Norman were not made available to me at this forfeiture hearing. However, it is clear from the recognizance that his mother was tasked with primary supervisory responsibility. This is reflected in the fact that she signed for a larger amount, and from the inclusion of the following condition (spelling and punctuation mistakes in the original):

3. Provide your meidcal appointments schedule and work, schedule and parole appoitments to your mother.

[8] The recognizance was not entered into by the sureties until a few weeks later. Jeremy Norman remained under the control of Correctional Services Canada and the National Parole Board. His parents helped supervise him when he was simultaneously on parole and bail. On January 13, 2013, the warrant expiry date of his 8 year manslaughter sentence, Jeremy Norman went to live with his mother.

(b) The Breach of Recognizance

[9] On February 21, 2013, at about 8:30 p.m., the police spotted Mr. Norman in a van in a laneway off Queen Street, in the City of Toronto. He was not with either surety. He was charged with breaching his recognizance under s. 145 of the Criminal Code.

[10] At the trial of this charge, before the Honourable Justice F. Clements on November 1, 2013, it was conceded that Jeremy Norman resided with his mother. It was Mr. Norman’s position that he had been working during the day and then went looking for an AA meeting. He located one at the Toronto Western Hospital in downtown Toronto. However, he was arrested at a location a considerable distance from the hospital. Mr. Norman claimed he was attempting to avoid traffic congestion, even though it was 8:30 p.m. Moreover, it turned out that the meeting that he said that he planned to attend was conducted in Portuguese, a language that he did not speak or understand. In convicting Mr. Norman, Clements J. referred to his evidence and said: “On the totality of the evidence, it made no sense. He was in fact not going directly to counselling as the condition of his bail required. Accordingly, I find him guilty of the offence.”

(c) Evidence at the Forfeiture Hearing

[11] Both sureties testified at the forfeiture hearing. In brief, the following story emerged. Mrs. Norman went away on holiday and left Brian Norman to be in charge of the sole supervision of their son. They formalized this arrangement in a document drafted by Brian Norman, which stated:

To: Tonie Norman

Re: Your Absence Starting Feb. 21, 2013

To let you have a care free vacation

I will be assuming complete responsibility for any and all bail conditions for the period you are away.

These include any specific conditions that you felt directly and personally responsible for.

Have a great holiday!

On February 20, 2013, this document was signed by Brian Norman, witnessed by another person, and acknowledged by Mrs. Norman. Mrs. Norman’s travel itinerary and contact information was appended to the document.

[12] Brian Norman, who is now 68 years old, testified that, once his son was living with his mother, he spoke to him by phone daily. They saw each other in person three times a week. A week before Mr. Norman breached his recognizance, Brian Norman had discussions with Mrs. Norman. She wished to go away, but wanted to be sure that their son was properly supervised. The plan was for Mr. Norman to move into her home and stay with their son while she was away. Mr. Norman said that Mrs. Norman told him that she had spoken to a lawyer and was assured that it was legal. When he went to his ex-wife’s home to execute the document, he brought an overnight bag with him, as he planned to be there the next night.

[13] Mr. Norman also planned to be at Mrs. Norman’s house on February 21, 2013. Instead, he went to Collingwood with his current partner and another couple to discuss business plans. He described the trip as a “getaway.” Mr. Norman testified that he knew that his son had a doctor’s appointment at 4:30 p.m. that day, which he believed he was entitled to attend.[^2] Medical documentation confirmed this appointment.

[14] Mr. Norman subsequently learned that, after his appointment, his son went to the home of a person called “Dwight” to help him with some computer work. Mr. Norman believed this to be “employment” within the meaning of the recognizance.

[15] Brian Norman had his cellphone with him when he left the city that day. His son tried to contact him at least 4 times in the evening. Mr. Norman did not answer the phone. Indeed, when the two couples stopped for dinner at a restaurant during their getaway, Mr. Norman decided to leave his phone in the car. Mr. Norman concluded his testimony by saying, “I agree, I fell down on the job that day.”

[16] Mrs. Norman is a 70-year-old retired nurse. She explained the struggles she and her ex-husband have endured with their son’s addictions and offending behaviour. When their son came to live with her in January of 2013, she was very diligent. She monitored his activity very carefully. Mrs. Norman checked his schedule everyday and more than once. The police did compliance checks at her home from time to time. Mrs. Norman went to court with her son from time to time, as did her ex-husband. She knew about her son’s medical appointment on February 21, 2013.

[17] Mrs. Norman testified that the idea of going on vacation was a last minute decision. She said that she would only go if she were permitted to do so. As Mrs. Norman said, “I am a rule follower.” She phoned a criminal lawyer (neither Mr. Santoro nor Ms. Ruffo) and received the advice that she did not need to inform the court or the police about her absence from the jurisdiction for the purposes of taking a vacation. The lawyer who provided this advice did not testify or provide evidence at this proceeding.

ANALYSIS

[18] The provisions governing the forfeiture of recognizances are set out in Part XXV of the Criminal Code. Most of the sections deal with the procedure for giving accused persons and sureties proper notice of the proceedings. When this has been done, s. 771(2) provides the following:

(2) Where subsection (1) has been complied with, 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 as he considers proper. [emphasis added]

The Criminal Code provides no further guidance as to how this discretion should be exercised.

[19] As an initial consideration, it is the Crown that triggers proceedings under Part XXV by requesting that the recognizance be noted in default for estreatment: see s. 770(1) of the Criminal Code. However, once the Crown follows through and the accused and the surety(ies) are given notice of a hearing under s. 771(2), the onus shifts to the accused and the sureties to demonstrate why they should be relieved from forfeiture. Thus, while the title of proceedings states that Jeremy Norman, Brian Norman and Tonie Norman are respondents, they bear the onus at this hearing.

[20] The principles concerning the forfeiture of recognizances are dealt with extensively by a five-person panel of the Court of Appeal in Canada (Minister of Justice) v. Mirza (2009), 2009 ONCA 732, 248 C.C.C. (3d) 1 (Ont. C.A.) (“Mirza”). In that decision, the Court addressed the standards to which sureties ought to be held in cases where the accused person has absconded. The controlling principles to be distilled from this decision are helpfully summarized in the recent decision of my colleague, C. Speyer J., in Romania v. Iusein, 2014 ONSC 623, at para. 22:

• The onus is on the surety to show why the recognizance should not be forfeited (para. 27)

• In considering what the appropriate test on a forfeiture application is, the preeminent importance of preserving the moral pressure or "pull of bail" must be recognized, so as to ensure it complies with the bail conditions, especially the condition that the accused appear in court or surrender into custody as required. (para. 43)

• The following memorable statement of Lord Widgery, Chief Justice, in R. v. Southampton Justices, ex parte Corker (1976), 120 S.J. 214 captures the meaning of the "pull of bail":

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.

• An overemphasis on the surety's lack of fault can undermine the "pull of bail" and have an adverse impact on the criminal justice system, which depends upon the accused complying with release conditions (para. 41)

• Courts in Canada have a broad discretionary approach and a number of factors must be taken into account in considering whether to relieve against forfeiture. A rigid rule of total forfeiture, absent exceptional circumstances, is inconsistent with a judge's broad discretion (paras. 42 and 44)

• The diligence of a surety is an important consideration in forfeiture hearings (para. 47)

• In the vast majority of cases which involve relatively small sums, probably nothing less than total forfeiture will suffice to vindicate the pull of bail. (para 46)

[21] As noted above, Mirza was an absconding case. The Court of Appeal did not discuss the principles applicable to other types of bail breaches. In fact, little has been written about forfeiture in these circumstances. This is not surprising because, at common law, a surety was not liable to forfeiture for breaches of conditions designed to secure the accused person’s good conduct while on bail. Indeed, in England and Wales, sureties are only responsible for ensuring that the accused person attends in court as required: see Bail Act, 1976 (U.K.), 1976, c. 63. In other words, in England and Wales, there is no such thing as a surety for good behaviour: see C. Chatterton, Bail: Law and Practice (London: Butterworths, 1986), p. 108.

[22] Canadian law took a different path and sureties are now required to supervise compliance with all of the conditions of release. This is made clear by the wording of Form 32 (Recognizance) of the Criminal Code. Among other conditions, sureties are often tasked with ensuring that accused persons attend treatment, observe curfews and be subject to house arrest. Conditions of this type are imposed in order to address primary, secondary and tertiary concerns while the accused person is on release.

[23] Categorically, one type of condition is no more important than any other. It will depend on the circumstances. Historically, attendance in court was the dominant focus of Anglo-Canadian bail law. When an accused person fails to attend his or her trial, public confidence in the administration of justice is undermined. However, other conditions may be just as important, especially those that are put in place to protect specific individuals (i.e., non-communication conditions) or the public at large (i.e., firearms and weapons prohibitions and house arrest conditions).

[24] In discussing different types of conditions in the context of forfeiture proceedings, Speyer J. said the following in Iusein (at para. 26):

Without in any way diminishing the importance of a surety supervising and attempting to enforce an accused's conditions of bail other than attendance in court, the primary responsibility is ensuring an accused's attendance in court. Absconding is more serious than most, if not all, other breaches of recognizance. The extent of a surety's liability when the breach concerns curfew violations and residency requirements may well be mitigated by the diligence exhibited by the surety in the context of what can be reasonably expected. That said, an important counterbalancing consideration is to ensure there is not an over emphasis on a surety's lack of fault. Such overemphasis could adversely impact the effectiveness of the bail system. (See paragraph 41 of Horvath and Mirza).

I agree with these observations. In terms of failing to appear, however, I wish to make one further observation. Speyer J. spoke of the accused “absconding.” That was the focus in Mirza, in which the accused were successful in bringing the proceedings to a permanent halt by fleeing. This is the most serious example of failing to appear. However, judges of this Court are sometimes asked to order the forfeiture of recognizances when an accused person fails to appear for an interim date (or even a trial date), but then ends up being apprehended and brought back into the system. These types of breaches, short of full-blown absconding, might be looked at differently for forfeiture purposes.

[25] With other types of conditions, the consequences of a breach are not always obvious. Taking house arrest or curfews as examples, a failure to abide by these types of conditions may admit a spectrum of consequences. At one end is the accused who commits a serious offence when he or she is out of the home in contravention of a curfew or a house arrest condition. The breach enables the commission of the offence, in the sense that the offence would never have been committed had the accused abided by the terms of his or her bail conditions.

[26] At the other end of the scale is the accused person who arrives home, an hour after his or her curfew (or who has temporarily stepped out of a house arrest arrangement), only to find the police waiting in the driveway. While it is important that bail conditions be obeyed and are seen to be taken seriously, these breaches result in no tangible harm to the community. However, some breaches of bail expose the community to the risk of re-offending. Sometimes, the risk is significant.

[27] On one hand, the breach in this case resulted in no tangible harm to the community. The police observed Jeremy Norman in his van and pursued him. He was caught immediately. No other offence was committed in the meantime. However, left unsupervised and out driving around the City in an area well-known for its drug trade, the community was exposed to serious risk. Drugs are a serious problem for Jeremy Norman, something that increases his risk to society. Indeed, most of the conditions of his recognizance are focused on preventing this from occurring. In short, the breach increased the risk of harm, even though it was short-lived.

[28] Returning to the conduct of the sureties, great emphasis was placed on the legal advice Mrs. Norman received. As I have already noted, the substance of this advice was never provided to me in any formal manner. However, I accept Mrs. Norman’s evidence that she consulted a lawyer and was told that she was not required to advise the police or “the court” about the arrangement that she made with her ex-husband. In other words, she was told that it was all right to go on holiday in the circumstances.

[29] This advice was seriously flawed, even though no statutory provision was infringed by what happened in this case. While sureties serve at will and may terminate their commitment for any reason, this does not mean that they are permitted to re-write the conditions of release to suit their own circumstances.

[30] Similarly, sureties are not entitled to delegate their responsibilities to others. In Iusein, during the currency of the recognizance, two of the three sureties traveled to Cuba on business. One of them was away for almost a month and delegated responsibility for checking up on the accused to his nephew (who was not a surety). Speyer J. disapproved of this arrangement in para. 31 of his reasons:

In this respect, Solmaz was an irresponsible surety. He last saw [the accused]…more than a month before his absconding. It cannot be countenanced that sureties hand-off their supervisory responsibilities to friends or other family members. In granting bail, Garton J. reposed trust in Solmaz and not his nephew. It is no answer for Solmaz to plead that his nephew went to see [the accused] every day. [emphasis added]

[31] The situation in this case is slightly different because Mrs. Norman delegated her responsibilities to another surety. However, this had the effect of seriously diluting the arrangement put in place by the justice of the peace. The two-surety bail ended up turning into a single surety bail, with the residential surety, who was on the hook for the most substantial amount, out of the country. This is not what the justice of the peace contemplated when releasing Jeremy Norman.

[32] In circumstances such as these, when a surety is unable to act (either permanently or temporarily), it is necessary that the bail situation be formally addressed. This may achieved by making an application for variation on a bail review under s. 520 of Criminal Code.[^3] Other options include making an application to substitute a surety (under s. 767.1), or by rendering the accused into custody (ss. 766 or 767): see R. v. Smith, 2013 ONSC 1341, per Dambrot J. At the very least, the officer-in-charge or the prosecutor should be apprised of the situation.

[33] In this case, a substitution under s. 767.1 was likely not an option as no one else was available. Rendering Jeremy Norman was obviously not a desirable course of action for this family. In the circumstances, the proper course of action was to seek a bail variation, asking a judge to allow Mr. Norman to act as the sole surety for the period of time that Mrs. Norman was away. Given the serious risks that Jeremy Norman poses to the community, this variation would probably have been opposed by the Crown, and it may not have been granted by a judge acting under s. 520 of the Criminal Code. Had the application failed, Mr. and Mrs. Norman would have known that the proposed plan was inappropriate and that she and her ex-husband would be liable to forfeiture if they proceeded in any event. Accepting Mrs. Norman’s evidence that she is a rule-follower, I have no doubt that she would not have gone on holiday in the circumstances. Had an application under s. 520 succeeded, Mrs. Norman would have been absolved of responsibility during this period, but Mr. Norman would have assumed the entire risk.

[34] I am somewhat sympathetic to the plight of Mrs. Norman because she sought legal advice before leaving the jurisdiction. In Mirza, Rosenberg J.A. (para. 74) noted that sureties take on significant legal obligations, and often without seeking independent legal advice. Sureties should be encouraged to receive advice regarding this serious obligation. However, even though Mrs. Norman received advice that the proposed plan was legal, I have a difficult time seeing how anyone could have thought that it was wise. It was fraught with obvious risk.

[35] Mr. Norman must have appreciated the serious, added responsibilities that he undertook when his ex-wife delegated all supervisory responsibility to him. On the one hand, he planned to stay at Mrs. Norman’s home while she was away. However, he flouted his responsibilities by going on his getaway the same day that Mrs. Norman left the jurisdiction, leaving their drug addicted and alcoholic son to his own devices. Not only did Mr. Norman not call his son to check in on him that day, he failed to answer his cellphone on the numerous occasions that his son tried to reach him. Had he been available, Mr. Norman may have been able to circumvent the breach that was soon to unfold.

[36] In these circumstances, the Crown seeks forfeiture of the entire amount from Jeremy Norman, and partial forfeiture for the two sureties. On behalf of Mr. Norman, Mr. Santoro argues that only a small amount should be ordered forfeit. Ms. Ruffo on behalf of Mrs. Norman submits that there should be no forfeiture at all, even though her client left the jurisdiction.

[37] Turning to Jeremy Norman first, as soon as his mother left, he realized that his father was not really keeping a close watch. Instead of obeying his house arrest condition and returning home right after his medical appointment, he headed downtown. Taking into account the fact that he was apprehended right away, before any real consequences accrued, and given that he has received a criminal conviction for the very same conduct (see R. v. Howell (2008), 2008 NLTD 70, 236 C.C.C. (3d) 373 (N.L. T.D.), less than full forfeiture is appropriate. Still, it must be made clear to Jeremy Norman and others that failing to abide by bail orders will have serious ramifications. I order forfeiture in the amount of $10,000.

[38] As for Mrs. Norman, I note that she was a diligent surety before leaving on vacation. I am satisfied that she thought that, from a legal perspective, she was doing the right thing. Legality aside, it was still an imprudent and risky arrangement to make. She undermined the bail order by compromising her own ability to monitor her son’s behaviour. The public was needlessly exposed to the risk of a violent offender. In all of the circumstances, I order forfeiture in the amount of $7,500 as being appropriate. Had Mrs. Norman not sought legal advice, the amount might have been much greater. Anything less would fail to vindicate the “pull of bail” in the circumstances.

[39] On this hearing, Mr. Norman can derive no benefit from Mrs. Norman’s legal advice. Wrongly, Mrs. Norman entrusted her responsibilities to Mr. Norman when she went away. He flouted his responsibilities on the very first day of this imprudent arrangement. He knew that his son has a violent past and was facing a very serious offence of violence (while intoxicated). Jeremy Norman required intensive supervision. These types of conditions must be taken seriously by sureties. Mr. Norman offered no real excuse for his lack of vigilance. He decided to put leisure activities ahead of his obligations as a surety. The only way to