Court File and Parties

COURT FILE NO.: CR-16-001-00BE DATE: 20160429

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Christopher Scott Vince Defendant

COUNSEL: S. Scharger, for the Crown L. Adler, for the Defendant

HEARD: March 30, 2016

Decision

J. WILCOX

[1] The accused, Christopher Scott Vince, was released on a series of recognizances with respect to various charges, commencing Jan 26, 2015. For the purposes of this decision, two are important. One was entered into on April 27, 2015 (the first recognizance). In it, the accused and one surety, James McIsack, were each liable for $2,000.00 with no cash deposit. One term was that the accused was not to communicate with Cindy Vince.

[2] The accused was subsequently charged with having breached that condition on July 7, 2015 by telephoning Cindy Vince multiple times. The first recognizance was vacated under s. 524 of the Criminal Code and the accused entered into a second recognizance. In it, he and four sureties, James McIsack and three others, were each liable for $7,000.00 with no cash deposit. Like the first recognizance, it included a term that the accused was not to communicate with Cindy Vince.

[3] The accused pleaded guilty to and was found guilty of the breach on January 21, 2016 in the Ontario Court of Justice. The OCJ judge completed the Form 33 Certificate of Default on the back of the second recognizance as follows:

I hereby certify that Christopher Vince (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 Default is by phoning Cindy Vince as outlined in Facts provided in court on January 21, 2016 and the reason for the default is Breach of Recognizance of his Bail.

The names and addresses of the principal and sureties are as follows: Christopher Vince 14 Sandy Plans Seguin ON P2A 2W8 James Phillips James McIsack Don Edington Sandy Edington

Dated 21st day of JAN, yr. 2016 at Parry Sound, ON in the Province of Ontario

C. Mathias-MacDonald Signature of Justice, Judge, Ontario Court of Justice Judge, Clerk of the Court, peace officer or other person, as the case may be.

(The French wording has been deleted here for clarity. The hand written insertions are italicized)

[4] The Certificate of Default in the first recognizance was left blank.

[5] A Notice of Estreat Court Hearing was served on the accused and all four sureties.

[6] The hearing took place March 30, 2016.

[7] The crown sought forfeiture of the $2000.00 pledged by the surety, James McIsack, in the first recognizance. It did not seek forfeiture from James Phillips, Don Edington or Sandy Edington, as they had become sureties in the second recognizance, after the breach.

[8] Defence counsel took the position that:

• The court lacked jurisdiction over the matter because the Certificate of Default was completed on the second recognizance, which was wrong, instead of on the first recognizance, which would have been correct, and
• Even if there was jurisdiction, the Certificate of Default was insufficiently particularized.

[9] S. 770 of the Criminal Code provides:

770 (1) Where, in proceedings to which this Act applies, a person who is bound by recognizance does not comply with a condition of the recognizance, a court, justice or provincial court judge having knowledge of the facts shall endorse or cause to be endorsed on the recognizance a certificate in Form 33 setting 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. (2) A recognizance that has been endorsed pursuant to subsection (1) shall be sent to the clerk of the court and shall be kept by him with the records of the court. (3) A certificate that has been endorsed on a recognizance pursuant to subsection (1) is evidence of the default to which it relates.

[10] S. 771 of the Criminal Code provides:

771 (1) Where a recognizance has been endorsed with a certificate pursuant to section 770 and has been received by the clerk of the court pursuant to that section, (a) a judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on his behalf, fix a time and place for the hearing of an application for the forfeiture of the recognizance; and (b) the clerk of the court shall, not less than ten days before the time fixed under paragraph (a) for the hearing, send by registered mail, or have served in the manner directed by the court or prescribed by the rules of court, to each principal and surety named in the recognizance, directed to the principal or surety at the address set out in the certificate, a notice requiring the person to appear at the time and place fixed by the judge to show cause why the recognizance should not be forfeited. (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 that he considers proper.

[11] So, s. 770 (1) is clear about which recognizance is involved. It speaks of non-compliance of a condition of “the Recognizance” that a person is bound by, not non-compliance with a or any recognizance. In the event of non-compliance with the recognizance, a certificate in Form 33 is to be endorsed on the recognizance. The four specific things listed in s. 770 (1) (a) through (d) are to be set out in the certificate. These four things relate to the conditions of the recognizance that was breached, and its principal and sureties.

[12] Where a recognizance has been endorsed with a certificate pursuant to s. 770, s. 771 then provides for the hearing of an application for forfeiture of the recognizance. The clerk of the court is to serve a notice on each principal and surety named in the recognizance, requiring them to appear at the hearing to show cause why the recognizance should not be forfeited.

[13] The judge at the hearing may make an order with respect to the forfeiture of the recognizance.

[14] Although the Criminal Code does not explicitly deal with a situation which there are successive recognizances, I find that the wording requires that the Certificate of Default that is to be filled out is the one on the recognizance that was breached, not on its successor.

[15] The practicalities of the scheme by s. 770 and 771 support this conclusion. For example:

• The terms of the recognizance might have changed. The term of the initial recognizance that was breached might not appear on the successor recognizance. The Certificate of Default’s prescribed wording refers to a failure to comply with “this recognizance” referring to the recognizance that the certificate is printed on.
• The sureties might have changed. Those on the recognizance that was breached might not appear at all on the successor recognizance or, as in present case, be included along with new sureties. When the clerk of the court serves the Notice of Estreat Court Hearing in accordance with s. 771(3) (b), people would be served, and inconvenienced by having to attend court, who are not sureties on the recognizance that was breached. Potentially, the surety or sureties on the recognizance that was breached and who would be the proper participants in the Estreat Court Hearing would not receive notice of the hearing because they were not sureties on the successor recognizance.
• The amount of money pledged might have changed, as it did here, from one recognizance to the next, leading to confusion and possible error about the extent of the liability.
• If, as the crown submitted, it is not proper for the court to make any endorsement on a document which is a nullity such as a recognizance which has been vacated, so that the court must use the Certificate of Default on the subsequent recognizance, that raises the question of what is to be done in the event of a breach of a condition of recognizance for which an accused is re-arrested, has his bail revoked and does not get bail again subsequently. The court would be left with no way to endorse a Certificate of Default, because the one on the recognizance which was breached and then vacated would not be available to it to use, and there would be no successor recognizance to endorse the Certificate of Default on.

[16] I conclude that the completion of the Certificate of Default on a recognizance other than the recognizance that was breached leaves the court with no jurisdiction to order estreatment in this matter. Therefore, the crown’s application for estreatment is dismissed.

[17] Having so concluded, it is not necessary nor appropriate to analyse whether the certificate was insufficiently particularized, aside from not being on the relevant recognizance.

J. A. S. Wilcox Released: April 29, 2016

Reasons for Judgment

COURT FILE NO.: CR-16-001-00BE DATE: 20160429

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Christopher Scott Vince Defendant

J. A. S. Wilcox Released: April 29, 2016