ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-50000083-00BE

DATE: 20151013

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TEODORO BANDIERA and MARIA BANDIERA

Meghan Scott, for the Crown

Mauro Marchioni, for Teodoro Bandiera and Maria Bandiera

George Tsimiklis, for Antonio Bandiera

HEARD: June 15, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT ON CERTIFICATE OF DEFAULT ISSUE

[1] When an accused person fails to appear in court and a bench warrant is issued does the Court lose jurisdiction to proceed with a forfeiture hearing if the certificate of default is not filled out correctly? In my view, the answer is “no”. For the reasons that follow, jurisdiction has not been lost. The forfeiture hearing will proceed.

BACKGROUND:

[2] When a person is charged with a crime he or she often gets bail. A surety will undertake to make sure that the accused person complies with his or her obligations – chief among them the requirement that the accused appear in court. The surety will post funds – at the risk of losing them if the accused fails to comply or appear. A failure by the accused is, therefore, prima facie a failure by the surety. Sometimes the surety is obliged to deposit cash. Usually, however, the surety is only required to satisfy a justice of the peace that he or she has the money available. Where the accused does not show up, the Crown usually asks for a bench warrant (to arrest the accused and bring him or her before the court). The Crown also usually asks that the bail be noted for estreat. Estreatment simply means that the money put up by the surety (or sureties) is to be forfeited. Estreatment does not happen automatically, however. There must be a hearing before a judge. The judge then decides whether the surety should forfeit all or part of the money.

[3] In this case, Antonio Bandiera was charged in March 2012 with various offences arising out of a robbery. He was granted bail. On March 13, 2012 his parents, Teodoro Bandiera and Maria Bandiera, signed a recognizance of bail. They agreed to be Antonio’s sureties. They pledged $100,000.00 ($50,000.00 each). They signed a document acknowledging their obligations. Antonio originally had a house arrest condition but that was varied, with the consent of the Crown, to allow him to travel on business. Antonio did not appear on several occasions and discretionary bench warrants were issued. Eventually the Court demanded that Antonio appear in person when his counsel could not explain his continued absences. On April 29, 2014 a bench warrant was issued in the Ontario Court of Justice. The clerk of the court filled out the certificate of default and the judge signed it.

ANALYSIS:

[4] Mr. Marchioni, for the sureties, argues that the form was not filled out properly. He relies on R. v. Taylor, [2002] O.J. No. 4246 (Sup.Ct.) for the proposition that strict compliance with Form 33 and s. 770(1) is required. The court loses jurisdiction to proceed with a forfeiture hearing where there has not been strict compliance.

[5] I respectfully disagree. I agree with Ms. Scott, for the Crown. She agrees that the form could have been filled out better but argues that it is irrelevant because the transcript can amplify the certificate. I agree with her that R. v. Vincent, [2011] O.J. No. 2031 (Sup. Ct.) is a complete answer to Mr. Marchioni’s argument.

[6] Section 770(1) of the Criminal Code requires that where a person fails to comply with a condition of his or her recognizance that the judge, court, justice, or provincial court judge (as the case may be) shall endorse the certificate of default in Form 33 or cause the certificate of default to be endorsed. Importantly, Form 33 is to be endorsed right on the recognizance of bail. In Ontario, the pre-printed recognizance form includes Form 33 on the back. In practice, the clerk of the court usually fills out the certificate and the judicial officer signs it.

[7] The certificate of default is the document that triggers the court to set a time and place for a forfeiture hearing: s. 771(1) of the Code. The Court loses jurisdiction to proceed with a forfeiture hearing where the judicial officer fails to comply with s. 770(1) by not setting out the reason for the default on the certificate: R. v. Gabrielson (1991), 1991 11761 (ON SC), 62 C.C.C. (3d) 571 (Ont.H.C.).

[8] Unfortunately, filling out Form 33 probably would not result in full compliance with s. 770(1). Section 770(1) states that Form 33 shall set out:

(a) the nature of the default;

(b) the reason for the default, if it is known;

(c) whether the ends of justice have been defeated or delayed by reason of the default; and

(d) the names and addresses of the principal and sureties

[9] As other cases have pointed out, s. 770(1) is somewhat ambiguous. It seems to require that the person filling out the form (or causing the form to be filled out) state whether the ends of justice have been defeated or delayed, something that may be quite unknowable. In any event, it seems to require some kind of judicial determination. Form 33, on the other hand, seems only to require a kind of perfunctory filling out.

[10] This is what Form 33 requires:

I hereby certify that A.B. (has not appeared as required by this recognizance or has not complied with a condition of this recognizance) and that by reason thereof the ends of justice have been (defeated or delayed, as the case may be):

The nature of the default is and the reason for the default is (state reason if known):

The names and addresses of the principal and sureties are as follows:

Dated this day of A.D. , at .

(Signature of justice, judge, provincial court judge, clerk of the court, peace officer or other person, as the case may be)

[11] Again, Form 33 is itself to be endorsed on the recognizance. In this case, Form 33 was indeed filled out in a perfunctory way. It states:

The nature of the default is

Delayed

And the reason for the default is

Non-Appearance

[12] The words “Delayed” and “Non-appearance” are handwritten. They were obviously filled out by the clerk of the court. The presiding provincial court judge, Justice Lapkin, signed the certificate. There is nothing wrong or inappropriate with that procedure: Vincent, at para. 5.

[13] I agree that the word “Delayed” seems to add nothing, and, in fact, is slightly misleading. I also agree with Wright J.’s comment in R. v. Boughner, [1999] O.J. No. 3769:

I confess that I am somewhat baffled by this requirement.

[14] Respectfully, if there were problems with the filling out of the form those problems stem as much from the ambiguous nature of s. 770(1) and Form 33, as they do from any other source.

[15] It is clear from a review of the transcripts that Mr. Bandiera’s counsel had been informed that he was travelling on business and out of the country. He (apparently) became ill while abroad. After several non-appearances, the Court and the Crown began to ask for some evidence that Mr. Bandiera really was ill and unable to return to Canada. After several opportunities to present an explanation (and opportunities for Mr. Bandiera to appear) it was clear that his counsel could no longer justify Mr. Bandiera’s absence. It is difficult to see what the word “delayed” has to do with anything. Furthermore, “non-appearance” is also somewhat un-enlightening. It provides no particulars. It does not specify that Mr. Bandiera had, in fact, failed to appear on several occasions. The form, however, does not seem to require much more in the way of particulars.

[16] In Taylor, Zelinski J. observed that “… it is reasonable that the Court should demonstrate its own expectation of quality by faithful compliance to its own processes, especially when such compliance is necessary to satisfy provisions of the Criminal Code and its forms…”

[17] Obviously I agree with that sentiment but it must be qualified. The nature of the proceedings in the Ontario Court of Justice has some bearing. That is a Court with a heavy workload and clerks who have much to do at any given moment. To find that the court has lost jurisdiction to proceed with a forfeiture hearing because of a clerical mistake by a clerk in a busy court would be a triumph of form over substance. My own personal experience as counsel in that Court is that the staff work very hard and do an excellent job while under tremendous pressure.

[18] The criminal law does not demand perfection in many other, more consequential documents. I would point to just three instances: the drafting of informations to obtain search warrants; the amendment of informations and indictments; and the correction of errors to a jury’s verdict.

[19] Police officers routinely draft informations to obtain search warrants. Those informations to obtain routinely contain grammatical and even factual errors. Those search warrants are routinely granted. Police officers often search private residences based on those warrants. Those searches are entirely lawful. Furthermore, an informant must be able to describe the place to be searched or the items sought with “reasonable particularity”. Reasonableness implies that particularity can vary with the circumstances. As Justice Zuber said in R. v. Lubbell (1973), 1973 1488 (ON SC), 11 C.C.C. (2d) 188 (Ont.H.C.):

The second ground upon which it is moved to quash both search warrants is that the materials sought to be found at the premises are too vaguely described. I think one has to remember that at this stage the authorities are still at an investigative stage in their procedure and by virtue of that fact are likely not able to name the things for which they are looking with precision. A search warrant is not intended to be a carte blanche, but at the same time the applicants must be afforded a reasonable latitude…

[20] If we do not demand a standard of perfection from police officers who are subsequently authorized by law to enter private residences and search, why would we require it from harried court clerks who are required to fill out an ambiguous form upon which, in the final analysis, little turns?

[21] The Criminal Code itself contains a provision to amend charging documents and indictments. In R. v. Sault Ste. Marie 1978 11 (SCC), [1978] 2 S.C.R. 1299, a case quoted by Justice Zelinski in Taylor, Dickson J. (as he then was) stated:

To resolve the matter one must recall, I think, the policy basis of the rule against multiplicity and duplicity. The rule developed during a period of extreme formality and technicality in the preferring of indictments and laying of informations. It grew from the humane desire of judges to alleviate the severity of the law in an age when many crimes were still classified as felonies, for which the punishment was death by the gallows. The slightest defect made an indictment a nullity. That age passed. Parliament has made it abundantly clear in those sections of the Criminal Code having to do with the form of indictments and informations that the punctilio of an earlier age is no longer to bind us. We must look for substance and not petty formalities.

[22] Finally, it should be noted that a court may correct clerical errors in the most consequential proceeding of all, a jury’s verdict. The Court has the ability to correct an error in the recording of a jury’s verdict as long as the correction does not require re-consideration of the case: R. v. Malicia (2006), 2006 31804 (ON CA), 82 O.R. (3d) 772 (Ont.C.A.).

[23] In Vincent, the facts were similar to this case. The certificate stated in a perfunctory way that the accused breach the conditions of his recognizance. The sureties argued, following Taylor, that the Court had no jurisdiction to proceed. Pierce J. rejected that argument. The certificate of default, he observed, was not meant to be a stand-alone document. It was simply prima facie evidence of default. The sureties had knowledge of the reasons for the default – or at least they should have. The Crown – and the sureties – were not prohibited from filing transcripts amplifying the record at the forfeiture hearing. Indeed, the Court could not order forfeiture without an opportunity to both sides to be heard.

[24] I agree with this logic. I note that in Taylor, the Court at the end of the day granted the Crown an adjournment to file further and better material.

[25] In this case, although it is a question of jurisdiction, it is also worth pointing out that the certificate of default is not a document that must be particularized like an indictment. Nobody’s liberty is at stake. No funds have yet been ordered forfeited. The requirements for filling out the document do not exactly leap out from the page with perfect clarity. The purpose of the certificate is to alert the surety that there has been a default, and that there will be a hearing to determine if forfeiture should be ordered. The certificate can be amplified at the forfeiture hearing. Indeed, amplification is necessary. No court would order forfeiture without more evidence than a simple note on a certificate, even if it were filled out in detail.

DISPOSITION

[26] The Court retains jurisdiction to proceed with a forfeiture hearing.

R.F. Goldstein J.

Released: October 13, 2015

COURT FILE NO.: CR-14-50000083-00BE

DATE: 20151013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TEODORO BANDIERA and MARIA BANDIERA

REASONS FOR JUDGMENT ON CERTIFICATE OF DEFAULT ISSUE

R.F. Goldstein J.