ONSC 4979 File No. 2504/13
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
LUBOMIR SPASSOV PANOV
Respondent
and
PAVEL PAVLOV and ANELIYA PAVLOVA
Respondent Sureties
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE MR. JUSTICE B. SHAUGHNESSY
On June 25, 2014,
At OSHAWA, Ontario
[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) - Indicates preceding word has been spelled phonetically.
APPEARANCES:
J. Kim
Counsel for the Crown
A. Pavlova
Self-represented
P. Pavlov
Self-represented
WEDNESDAY, JUNE 25, 2014
REASONS FOR JUDGMENT
SHAUGHNESSY, J.: (Orally)
THE COURT: On June 11, 2014, the Crown brought an application to estreat the bail posted in relation to the accused, Lubomir Spassov Panov who is charged with 55 counts ranging from fraud, conspiracy, participating in a criminal organization, multiple counts of possessing ATM overlay devices, magnetic strip readers, possessing debit card data, possessing identity information and identity documents.
These alleged offences occurred between the months of July and November 2012 at numerous cities across Ontario including Oshawa.
I’m advised that the co-accused pleaded guilty to a number of the offences and received a custodial sentence of 30 months.
The accused, following his arrest, was detained on these charges.
A bail review was brought by the accused and was heard by Justice Sosna on December 20 and 21, 2012. There was a full bail hearing conducted
and the transcript of the review is available to
this Court.
At the bail review hearing, Mr. Pavel Pavlov was proffered as a surety. He testified at the bail review hearing. His spouse, Aneliya Pavlova, also was proffered as a surety and was present in Court but did not testify at the bail review.
The accused and Pavel Pavlov are related in that the accused’s father and Pavel Pavlov, as I understand it, are first cousins.
Mr. Pavel Pavlov and the accused are both immigrants from Bulgaria. They had been in regular contact since 2008 when the accused came to Canada. They would see each other twice a month and had what the sureties described as a close relationship.
The accused's father resided in Bulgaria and his mother in the United States. His mother passed away a few months prior to the bail review.
The accused was released at the bail review on a recognizance of $100,000.00, no deposit.
The approved sureties were Pavel Pavlov and Aneliya Pavlova, each in the amount of $50,000.00, no deposit.
The accused was released from custody on December 24, 2012. The judicial release contained numerous strict conditions including reporting to the police station three times a week; phoning in to the police on a land line from his sureties’ residence the other four days of the week; passports and other documentation surrendered to the police. The accused was under house arrest at all times and at all times was to be in the company of his sureties. The accused could be in the community only if accompanied and in the direct company by his surety and with a curfew of 7:00 p.m. The police had authority to attend at the residence without warning to determine compliance with the terms of bail. There were many other conditions which I do not propose to detail here.
March 8, 2013 Variation
The accused subsequently brought an application for a variation of undertaking or recognizance. This application was brought on March 8, 2013. This application was consented to by the Crown. The variation of recognizance deleted the conditions of his judicial release inter alia as follows:
That the accused remain on house arrest at all times and be in the direct company of a surety;
That the accused be allowed to be at large in the community but only in the direct company of his sureties and a curfew and the police attending without warning.
In place of and substituted were the following conditions:
- The accused would remain on house arrest at all times and be in the direct company of one of the sureties except when travelling to and from and attending Alliance Francaise Language School at 25 Spadina Road to attend French classes.
MS. BOTCHAROVA: Your Honour, I need a minute.
THE COURT: Yes.
... INTERPRETER INTERPRETS FOR SURETIES
MS. BOTCHAROVA: Thank you.
THE COURT: I’ll go slower.
MS. BOTCHAROVA: No problem
THE COURT: 2) The accused would be allowed to be at large in the community only in the direct company of one of his sureties except to attend a French class as referred to previously.
- The police were permitted to attend the residence at any time without warning to monitor the accused’s compliance with his bail conditions including an 11:00 p.m. curfew.
The accused and the sureties signed the new recognizance on March 8, 2013.
May 6, 2013
The accused brought another application on May 6, 2013 to again vary the terms of the judicial release of December 24, 2012, which variation was consented to by the Crown and which I summarize as follows:
a) To delete the following conditions;
i) that the accused remain on house arrest and in the direct company of one of the two sureties,
ii) that the accused be in the company of one of his sureties at all times,
iii) that the accused be allowed to be at large in the community but only in the direct company of one of his sureties and adhere to the terms of the curfew of 11:00 p.m. seven days a week, iv) the police attending without notice at his residence to determine compliance with the bail conditions,
v) that the accused shall reside with his sureties and be amenable to the "house rules".
b) In place of and substituted as new conditions
were;
i) the accused shall reside at 1530 Victoria Park Avenue, Apartment 314, Toronto. This was the accused's residence when arrested,
ii) the accused would abide by a curfew inside his residence between 11:00 p.m. and 6:00 a.m. daily except when in the direct company of one of his sureties.
The variation of recognizance was signed by the accused, the sureties and the Crown on May 6, 2013.
Preliminary Hearing
The accused, Panov, failed to appear in courtroom number 403 at the Durham Regional Courthouse on September 23, 2013 at 9:30 a.m. for his preliminary hearing.
The Crown, accordingly, had a certificate of default issued by Justice Stone of the Ontario Court of Justice on September 23, 2013.
A bail estreat application was then commenced by the Crown and I would note that the service requirements have been complied with.
On this bail estreatment, the sureties, Aneliya Pavlova and Pavel Pavlov appeared and testified before me.
On this application, the Crown seeks to estreat the entire amount of $50,000.00 as against each surety. The Crown submits that based on the decision in Canada v. Horvath, (2009), 2009 ONCA 732, O.J. No. 4308, Ontario Court of Appeal, the onus is on the sureties to demonstrate why the total amount of the surety should not be forfeited.
Testimony of the Surety Aneliya Pavlova
In summary, the testimony of Aneliya Pavlova is that she is 51 years of age, an immigrant from Bulgaria, but a Canadian citizen. She resides with her husband, the surety, Pavel Pavlov, in a
home in Toronto. They have no children. Her
mother, 86 years of age, resides with them.
Aneliya Pavlova is on a disability pension. She testified that her husband Pavel works as a cook in a kitchen.
They purchased their family home in 2006 and it is their only asset with equity.
Aneliya Pavlova testified that she met the accused in 2008 when he arrived in Canada. She went to his wedding and testifies that she had a close relationship with him.
Aneliya Pavlova states that she signed on as a surety in December 2012. She states she felt sorry for the accused because his mother had died only a few months prior to his arrest. She testified that she therefore wanted to be a mother figure to the accused and put him on the right path.
She testified that she and her husband followed the conditions of the release strictly including all terms of having the accused under strict house arrest and accompanying him when he was out of the house and ensuring compliance with curfews, indeed, all of the conditions of bail.
In the period December 24, 2012 to March 8, 2013, she testifies that there were no problems or difficulties encountered with the supervision of the accused. Ms. Pavlova testifies that she found that the accused was extremely serious and "followed strict compliance" with the bail release conditions.
She frequently checked his room to make sure he had no credit cards. She states that she searched the accused’s personal possessions without warning. She testified that the police had taken the accused’s passport and based on her own searches, the accused had no other documents.
Aneliya Pavlova testified that at the judicial release hearing, and from the accused's lawyer, she was aware that the accused had his driver's licence suspended and he could not enter the United States.
After the bail variation and in the period March 8 to May 6, 2013, this surety testified that she had no problems with compliance issues by the accused.
She felt that his upgrading of his education would be beneficial and therefore she supported him attending school.
She testified that she attended at court on May 6, 2013, for a further bail variation. She testified that she was aware that the accused was asking the court to permit him to return to his own residence at 1530 Victoria Park Avenue, Apartment 314, Toronto. This apartment was approximately a 10 minute drive from her home. She testified that by this time the accused had a job with a construction company in Mississauga which involved painting and renovating apartments. Significantly, however, is that notwithstanding the bail variation of May 6, 2013, both sureties required that the accused come to their home every day either for a cup of coffee in the morning or dinner after work in order to monitor him. Aneliya Pavlova testified that with the frequency of contact removed by the May 6, 2013 bail variation, nevertheless, she and her husband were very concerned about their $100,000.00 exposure. Therefore, they set their own rules for the accused to follow. Aneliya Pavlova also testified that the accused complied with the rules imposed by her and her husband. She testified that because she has a significant walking disability, she was restricted to the confines of her home and consequently she had the most contact with the accused.
Ms. Pavlova testified that on every occasion that she met with the accused in her home, she demanded answers from him concerning whether he attended at the police station three times a week to sign in and the other four days whether he contacted Detective Caplan on the telephone as required by the bail conditions. She had testified the accused assured her that he complied with this and all of his bail conditions. Ms. Pavlova testified that there were no problems or difficulties with compliance with the sureties' rules or the bail conditions up to and including August 18, 2013.
August 18 and 19, 2013
Ms. Pavlova testified that the accused came to her home as usual the morning of Sunday, August 18, 2013. She testified that she and the accused had a cup of coffee in her backyard. She states that her husband was sleeping at the time. She testified that she reminded the accused that he was to call Detective Caplan that day and he responded that he would do so.
Aneliya Pavlova testified that she was aware that the accused had a preliminary hearing date set for September 23, 2013 and that this was an important date.
She also testified that although the accused’s conditions were varied to permit him to attend court without a surety, nevertheless, she insisted on attending court on each occasion with him and anticipated that she would attend the preliminary hearing on September 23, 2013.
Ms. Pavlova testified that on August 19, 2013, the accused did not attend her home for coffee as he promised. She and her husband called the accused on the phone and he did not answer. By 10:00 a.m., she and her husband attended at the accused's residence. They knocked on his door repeatedly and received no response. They then proceeded directly to No. 54 Division of Metropolitan Toronto Police. They met Police Constable Wildeboer, badge number 1792. They explained to this police constable the circumstances of how they were sureties for a large amount of money and that the accused had not come to their home or answered his door. The police officer suggested that they return to the house and knock on the door again as the accused may have been sleeping or showering. They were also advised that if again there was no response, they should proceed to the courthouse in Oshawa to have the bail revoked.
Ms. Pavlova testified that she and her husband returned to the accused's residence and again repeatedly knocked on the accused’s door and that again, there was no response. They then proceeded to the courthouse in Oshawa.
Filed as Exhibit No. 2 in this proceeding is a piece of paper with the date of 2013 08 19 and the name and badge number of the police officer at 54 Division previously referred to and which includes the address and telephone number for the police division. The Exhibit also has a
signature on the page which I infer to be that
of police officer Wildeboer.
August 19, 2013, Ms. Pavlova and her husband attended at the courthouse at 150 Bond Street East in Oshawa and executed an application to be relieved of their obligation under the recognizance. These applications form part of Exhibit No. 1 in this application for estreatment of bail. Ms. Pavlova testified that at the time of the attendance before a justice of the peace in Oshawa, it was explained that a warrant would issue and the accused would be arrested. Ms. Pavlova testified that at this point she was not concerned about what would happen to the accused. However, she was concerned "about our money" and their home was all the assets they owned.
Ms. Pavlova testified she was alarmed because not once did the accused fail to attend her home in a 24 hour period as she and her husband required. The accused was totally compliant with their demands and imposed rules.
From August 19 onwards, both sureties called the accused's father in Bulgaria. They both testified that the accused's father told them that he did not know of the accused's whereabouts. They persisted in their calls until the accused's father "turned off his phone" after a month or so.
The application for bail estreat was served on the sureties in November 2013.
In cross-examination, Aneliya Pavlova testified that the accused was an only child and that his mother had died.
She testified that she and her husband visited Bulgaria in the period June, July, 2013. She and her husband’s relatives reside in different cities. She testified that her husband asked his relatives in Bulgaria to contact the accused's father after August 19, 2013. She states that the relatives indicated that they were unable to contact the accused's father and that he could not be found and in any event, he did not maintain contact with the relatives.
In cross-examination, Aneliya Pavlova testified that her home was worth approximately $500,000.00 and the mortgage on the home was approximately $287,000.00. While some equity may have been paid off with the passage of time, the value of the home was approximately the same now as in 2012 when the recognizance was signed. She acknowledged that when she pledged $50,000.00 as a surety she did so on the basis of the value of her home.
In answer to questions on cross-examination, Ms. Pavlova stated that she never thought that the accused would breach the conditions of bail. She was aware that she took the risk that if the accused breached his bail, she could have
$50,000.00 of her equity in the home taken by
order of the court.
However, she testified that this was the reason that she required close supervision of the accused and she testified that the accused was serious about the strict conditions. She also stated that she did exactly as she was told and that when the accused did not report to her as she required she went immediately to the police as she promised to do. While aware of the risks involved, Ms. Pavlova stated in cross-examination that she tried her very best to monitor the accused and to get the accused to follow the conditions of his bail. She testified that she had no idea that the accused would flee to Bulgaria.
In response to questions on cross-examination, Ms. Pavlova states that she was aware that the accused was found and charged with a false passport. She was advised of this by defence counsel although she never saw any false passport. She testified that after the accused was arrested, she questioned him about the passport and he said he was just playing at a photo shop with photocopying and he did not intend to use the passport. She was also aware that among his charges he had several that related to false identifications. Again, the accused told her he was just playing around at a photo shop. This conversation took place after the accused was released at the bail review.
Ms. Pavlova testified that she was aware that the accused’s driver's licence was suspended in the United States. She testified that the accused told her that when his mother, who was living in the United States, was dying, he attempted to cross the border into the United States but he was refused entry. Accordingly, he did not visit his mother before she died or attend her funeral. She stated that the accused told her that when he attempted to enter the U.S. in the company of friends, he was denied entry on the basis that he did not have a VISA to enter the U.S. She testified that she was not aware of any other reason why the accused was denied entry at the border.
Ms. Pavlova also testified that the accused's lawyer reviewed with her all the charges that the accused was facing and the matters detailed above. In relation to the issue of being denied entry into the U.S., she is not sure if the defence lawyer or her husband advised her. She then states she is certain the lawyer advised her of the allegations at the bail hearing. She was inconsistent in her answers concerning if she was aware of the attempt to enter the United States and or who told her about the incident.
Ms. Pavlova acknowledged that she was aware that the accused travelled from Canada to Bulgaria a few months prior to his arrest.
She was aware that the accused was a permanent
resident of Canada and she stated that she was aware that his passport was seized by the police when he was arrested.
Ms. Pavlova testified that she was aware of the alleged extensive scheme relating to the present charges and that the charges required sophistication on the part of the accused.
However, she testified she was unaware of this aspect of his life before the accused was arrested.
In cross ....
MS. BOTCHAROVA: Your Honour, I’m sorry. Can we take a break?
THE COURT: Yes.
RECESS
UPON RESUMING:
... DISCUSSION BETWEEN JUDGE AND REPORTER RE LAST SENTENCE
THE COURT: In cross-examination, Aneliya Pavlova testified that the plan of supervision for the accused was that originally she and her husband were to supervise him at all times. Since her husband worked as a cook, she assumed a major role in the supervision. She testified that she supervised the accused all the time and checked up on him including his possessions, to make sure that he had no access to the internet or cell phones and that he complied with all of the conditions of his bail.
Ms. Pavlova stated that the reason the accused’s bail changed in May 2013 was because he wanted to work. She agreed that the accused’s bail did not have to be changed to permit him to live at home to go to work. He could have lived in her house and gone to work. She agreed with hindsight that if the accused was not permitted to live on his own, the breach of bail would not have occurred because "our conditions were strict" and no one could supervise better than she and her husband. She agreed that if the terms of bail had not been changed, it was less likely that the accused would have failed to appear at his preliminary hearing in September 2013.
Nevertheless, she also stated she did not believe that the accused would breach his bail, based on her observations of his conduct up to August 18, 2013. She also added that she and her husband did their very best to ensure his compliance with the bail conditions and their own house rules. Ms. Pavlova testified that the variations on the terms of the original bail release were as a result of the court's decision. She states that she did not ask for the changes. She did state that she knew there could not be a change in the bail without her consent. She testified that she wanted the accused to attend school and she had tested the accused in his proficiency in the French language. Even when the accused applied again to change the terms of bail, she agreed because she trusted him, yet she also insisted on her rules which involved his reporting once a day to her as previously detailed.
Accordingly, Ms. Pavlova gave, in my opinion, a poignant comment when she stated"I do not know how I could do more".
The first time the accused did not attend at her home, (August 19, 2013), she went to the police to report him. As she states"We were very strict". Further, she states that in keeping a close eye on the accused, she observed that the accused was strictly following the rules and he appeared to be afraid of breaking the rules. Further, she testified that from May 6 until August 18, 2013, the accused was going to work and returning home and reporting to her once a day. In the period of May 6 to August 18, Ms. Pavlova testified that she periodically visited the accused at his residence and she demanded and did inspect the accused's wallet and asked questions where he was going and what he was doing and otherwise checking up on him.
The Surety, Pavel Pavlov
The spouse of Aneliya Pavlova, who also is a
surety, testified on this application for estreatment of the bail. In most material aspects, his testimony parallels and is consistent with the testimony of Aneliya Pavlova and therefore I do not propose to review it in any detail.
Mr. Pavlov is a cook. He and his wife immigrated to Canada in 1996. He became reacquainted with his cousin’s son in 2008. He testified that the accused was always respectful and listened to him. He testified that he was unaware of the accused's involvement in the criminal justice system until the accused's lawyer made him aware of issues which included being turned back at the U.S. border in July 2012.
Mr. Pavlov testified that he requested, as a term of bail, that he be able to impose his own conditions on the accused other than reporting. He testified that he forbid the accused from having cell phones or access to the internet. He personally made sure that the accused had no computer in his apartment by attending and inspecting the residence. He testified that he and his wife went 25 times to the accused's residence just to supervise him at his home and to make sure that he had no computer or other items as detailed in the bail release. He also testified that he would regularly search the accused's wallet and his room. Mr. Pavlov testified that he never saw any Bulgarian passport but the accused's lawyer, among other things, explained that the police had found the accused with "a fake passport".
So, the accused had no computers or false documents or passports while he resided at Mr. Pavlov's home and he did not observe such contraband when he attended at the accused's apartment. He testified that the accused had a home phone and nothing more.
Like Aneliya Pavlova, he testified that after the accused went missing, he called repeatedly to the accused's father in Bulgaria to determine the accused's whereabouts. After many phone calls, the accused's father changed his phone number and that he no longer has any relationship with him, nor can he find his cousin.
In cross-examination Mr. Pavlov testified that he was aware that the accused had, what was described to him as a "minor offence”, in the United States, as related to him by defence counsel. He also testified that the accused told him he was refused entry into the United States because he did not have the correct VISA. He also states that he heard about U.S. charges at the bail review application.
The surety, Pavlov, confirmed his economic
circumstances including the equity in his home which is his only significant asset.
He testified that he told the court on the bail review that he and his wife would watch the accused 24/7 and he states that he "did everything correctly as I was told by the Court". He states that even after the accused was allowed to reside in his own residence that he and his wife required that he come to their home once a day and they also made "surprise visits" to his home.
Mr. Pavlov testified that he was the best man at the accused's wedding. Since these charges were laid, he states that the accused's wife left to reside in her father's home and had no contact with him.
He testified that the accused told him in June 2013 that he and his wife were getting divorced.
Position of Sureties’ Counsel
The position of counsel for the sureties, is that based on all the evidence, the sureties met the standard of due diligence, indeed, that their conduct as sureties left nothing to be desired. It is submitted that if this Court applies the factors outlined in R. v. Nguyen, (2000) O.J. No. 5321, paragraph 12, as well as the principles outlined in Canada v. Horvath, (2009), 2009 ONCA 732, O.J. No. 4308, paragraph 40 to 44, then the application to estreat bail in the amount of $50,000.00 as against each of the sureties, ought to be dismissed.
It is submitted that the sureties Pavlova and Pavlov set up a rigorous plan of supervision. On the one occasion that the accused breached their condition of reporting, they immediately reported him to the police and the same day, August 19, 2013, attended in Oshawa to be relieved of their obligation under the recognizance. It is submitted that they did what they were required to do and it is to be noted that this was not a breach of his release conditions but rather a breach of the rules that the sureties imposed.
There was no lapse in time between the accused's non-reporting to them and their contact with the police (12:45 p.m. August 19) and attending in Oshawa court on August 19 for relief from their obligation under the recognizance. Counsel for the sureties submits that there is no evidence of bad faith on the part of the sureties.
Further, it is submitted that the cross- examination of the sureties which centered around U.S. charges, a photocopied fake passport and refused entry at the border, were all matters known to the Court when the judicial release was granted.
Notwithstanding these matters, it is submitted that the Court found that the accused could be released on terms.
Counsel for the sureties also points to the fact that the Crown did not oppose the bail variations of March and May, 2013.
Accordingly, it is submitted, how can it be argued that the sureties should be penalized when they look to the Crown for direction and if the Crown did not oppose the variation of conditions, then why would one expect relatively unsophisticated sureties to think otherwise.
Finally, it is submitted that the sureties have made serious efforts to assist the authorities to locate the accused in Bulgaria.
The Position of the Crown
The Crown submits that despite the variations of the bail conditions in March and May, 2013, it still remained within the prerogative of the sureties to say no and not agree to be a surety.
In response to questions from the bench, Mr. Kim acknowledged that the Crown had a role in the bail variations by providing its consent.
The Crown in its submissions referred extensively to the decision in Canada v. Horvath (supra).
The Crown's position is that "even if the sureties did everything perfectly, there should still be forfeiture".
It is submitted that the preservation of the bail system requires a pull of bail. Therefore, when the accused absconded, it requires the Court to pull the bail in the amount of $50,000.00 as against each surety.
Accordingly, the Crown states that even if this Court were to find that the sureties acted with due diligence, nevertheless bail in the amount of $50,000.00 ought to be estreated as against each surety by reason of the fact that the accused did not appear for his preliminary hearing on September 23, 2013.
Analysis
It is noteworthy that the Crown made very few submissions, if any, about the extensive evidence provided by the sureties, but rather focused its position by making reference to
various paragraphs in the Ontario Court of Appeal decision in Horvath.
I am not surprised that the Crown made little comment on the evidence of the sureties for it is abundantly obvious that they acted with due diligence throughout.
To respond to the rhetorical comment posed by
Aneliya Pavlova"What more could we have done", I find that nothing more could be asked or expected of them.
The accused, Lubomir Spassov Panov, failed to attend his preliminary hearing of September 23, 2013. I find that the strict terms of bail that Justice Sosna set for his release which included 24 hour house arrest under the supervision of the sureties, was a sound and well-structured plan of release with onerous terms involving house arrest.
I find that the accused was exceedingly well supervised under the judicial release order of December 24, 2012.
The accused brought two bail variation applications, one in March, 2013, to attend school and a second application on May 6, 2013, to return and reside in his own home.
Notwithstanding the significant relaxation in the house arrest conditions, and residing with his sureties, I find that Ms. Pavlova and Mr. Pavlov, nevertheless, with their remaining resources, proceeded to set their own rules of daily reporting and making numerous "surprise visits" and monitoring the accused reporting to the police and searching his wallets and personal possessions.
I find that it is very significant that when the bail variation was brought by the accused, the Crown consented or certainly did not oppose the variations, notwithstanding all the concerns that it now raises about flight risk and a sophisticated fraudulent enterprise across Ontario involving a significant loss of money.
In the Crown's closing argument that the sureties could have said "No", to the terms of the bail variation, my finding is that the Crown, at those bail variations could well have said no but instead chose to consent. Realistically, why would one expect unsophisticated sureties to oppose terms that the authorities, in particular, the Crown, were not opposed to.
In this application I am applying the principles outlined in R. v. Nguyen, paragraph 12 which were approved in Canada v. Horvath at paragraph 42.
The factors I have taken into account on this forfeiture application are:
The sureties signed for a person who was related to them and one of the sureties assumed a somewhat motherly role to step in and assist him. While he may have had a "minor record” in the United States, there was no evidence before me that he had a criminal record in Canada and none for breaches of court orders;
The accused was placed under strict house arrest, later varied and the sureties maintained high supervision and control over the accused from December 24, 2012 to August 19, 2013. I have previously detailed all the measures undertaken by the sureties;
There is evidence that the sureties sought out the accused after he absconded by repeatedly calling the accused's father and other relatives in Bulgaria;
It is uncertain whether the relationship of the accused and the sureties was one that would have persuaded the accused to return, having absconded, since it was impossible for them to have any idea that the accused would have done so;
There is no evidence that the sureties assisted the breach and I find that they did not;
Daily contact was implemented by the sureties and I find that they adequately
supervised the accused for all the time that he was released;
There is no evidence to suggest that there was anything that ought to have alerted the sureties that the accused was about to breach his release order and no previous history of breaches or criminal conduct;
The accused was with the surety on August 18, 2013. He could not be located on August 19. By 10:00 a.m., they were at his door. They reported him to the police at 12:45 p.m. on August 19 and they were before a justice of the peace the afternoon of August 19;
The sureties were truthful about their finances. While they had more than $100,000.00 equity in their home and with a significant mortgage to pay, I accept that a bail estreat in the amount of $100,000.00 would have a significant impact on their lives.
I reject the position advanced by the Crown. I find the position advanced by the Crown to be highly selective and incomplete in the references made to the Court of Appeal decision in Horvath and the directives provided in that decision.
I summarize the important principles in Horvath for the purpose of this application as follows: 1) The Court has a broad discretion in determining how much of the recognizance should be forfeited in accordance with S. 771(2) of the Criminal Code;
A surety's due diligence is merely one factor to take into account and in many cases will have no impact on the decision;
The onus is on the surety to show why the recognizance should not be forfeited. This follows from the wording of S. 771(b) which gives the surety the opportunity "to show cause why the recognizance should not be forfeited";
The "pull the bail" factor that emerges from English case law is important as"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.” (Lord Wrigley, C.J. in South Hampton Justices, ex parte Corker, (1976) 120 S.J. 214 as quoted from the full transcript in R. v. Uxbridge Justices, ex parte, Howard-Mills, (1983) 1 A.L.L. E.R. 530 at page 532;
However, while "pull of bail" is an important factor, nevertheless, in attempting to do what is right and fair towards the sureties, the courts must be careful not to undermine the effectiveness of the bail system. Therefore, an “over emphasis 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 on the accused complying with the release conditions".
The courts in Canada have adopted a broad discretionary approach that have referred to a number of factors in considering whether to
relieve against forfeiture such as found in R. v. Nguyen at paragraph 12;
In considering the appropriate test on a forfeiture application, there is then the pre-imminent importance of "pull of bail" to ensure compliance with conditions especially that the accused appear in court or surrender into custody as required. However, despite the importance of a pull of bail, this does not mean that a rigid rule of total forfeiture, absence exceptional circumstances, should be followed. As stated in Horvath"Such an approach is inconsistent with the broad discretion implied by the words of Section 771(2) that a judge 'may ... in his [her] discretion, grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he [she] considers proper’." The reference is to paragraph 45 of Horvath;
When substantial sums are pledged as security, the pull of bail can sometimes be vindicated by something less than total forfeiture;
However, in the vast majority of cases which involve relatively small sums of money, probably nothing less than total forfeiture would suffice to vindicate the pull of bail.
The diligence of a surety is a relevant consideration in forfeiture hearings because;
a) the right to bail is a constitutional
guarantee and therefore sureties have become an integral part of our bail system and therefore an important means of ensuring that the constitutional imperative is supported. An approach that would "unduly discourage sureties from coming forward" (paragraph 47) would not assist the bail process. Therefore"the court must not be so inflexible in the exercise of discretion that responsible sureties are discouraged from coming forward". As stated in Horvath, this could well be the case if the sureties due diligence were considered to be irrelevant. Accordingly, the focus on a forfeiture application cannot be solely on the impact of the forfeiture on the accused. Since we require sureties to supervise the accused, it would be most unreasonable and unfair to completely ignore their efforts on a forfeiture hearing;
b) one cannot ignore that in the forfeiture
proceeding under S. 773 the ultimate enforcement procedure, even if seldom invoked, is imprisonment. While the process has similarities to civil proceedings, the court cannot lose sight that the forfeiture proceedings are part of our criminal justice system. For these reasons, it would be unjust to ignore the degree of fault attributable to a surety when there is a possibility that they could be imprisoned.
c) It must be recognized that sureties
rarely receive independent legal advice as they would when entering into similar obligations in a civil context. As an example in the present matter, the sureties testified that they received much of the information from the accused's defence counsel. This can hardly be considered a source of independent advice.
- As a result, the hearing judge must attempt
to balance all the considerations previously
outlined in exercising the discretion conferred by S. 771(2) of the Criminal Code. At paragraph 51 of Horvath, the Court of Appeal provides a list of factors for the hearing judge to consider that are not exhaustive and not all will be of equal relevancy or weight and which include;
the amount of the recognizance;
the circumstances under which the surety entered into the recognizance especially when there was any duress or coercion;
the surety’s diligence;
the surety's means;
any significant changes 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 surety and the accused.
Applying then the principles in the Horvath case as well as the principles outlined in the Nguyen case, I find that the sureties have met the onus to show why the recognizance should not be forfeited.
In keeping with the approach in Horvath which favours a broad consideration of all relevant factors, I find on the evidence adduced, the following:
a) The sureties signed for a person related to them and with whom they had a relationship since 2008;
b) The accused was placed under strict house arrest which only later was varied at the request of the accused and consented to by the Crown;
c) Notwithstanding the variation of the bail conditions, the sureties required and demanded daily reporting and surprise visits on the accused on a number of occasions and the sureties maintained a high level of supervision over the accused up to and including August 18, 2013;
d) When the accused breached their house rules of reporting to them on August 19, they immediately reported it to the authorities;
e) There is no evidence that the sureties were aware beforehand or assisted the accused to abscond;
f) The sureties proceeded to take steps to assist authorities by making numerous efforts to locate the accused after he absconded.
The position advanced by the Crown on this application bears some comment. The Crown on this lengthy forfeiture proceeding adopted the rigid position refuted in the Horvath decision, namely that when the accused failed to attend his preliminary hearing on September 23, 2013, then there should be a pull of bail in the amount of $50,000.00 as against the surety. This rigid and narrow approach does not recognize the broad discretion of this Court which focuses on all relevant factors, only one of which is the due diligence of the sureties.
The Crown in its submissions on this application focused solely on the impact of the forfeiture on the accused. This focus is unreasonable and unfair to the sureties and to the constitutional principles relating to our bail system. A rigid rule or position of total forfeiture absent exceptional circumstances should not be followed and is inconsistent with the broad discretion implied in S. 771(2) of the Criminal Code and as outlined by the Court of Appeal in the Horvath decision.
I am satisfied that granting relief to the sureties in the present case and circumstances does not undermine the effectiveness of the bail system.
The totality of the factors that I have reviewed leads me to the finding that the sureties have satisfied the onus on this application for bail estreat.
Therefore, the forfeiture application as against Aneliya Pavlova and Pavel Pavlov is dismissed.
In relation to the accused, Lubomir Spassov Panov, service having been proved and no evidence being presented, I hereby order an estreatment of bail in the amount of $100,000.00 as against the accused.
MATTER CONCLUDED