Court File and Parties

COURT FILE NO.: 17-10-00BE DATE: 20170816 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARK MEULENDYKS Defendant

Counsel: Kathryn Hull, for the Crown Leora Shemesh, for the Defendant

HEARD: July 17, 2017

REASONS FOR DECISION

DE SA J.:

[1] On March 7, 2016, Mark Meulendyks (the “accused”), was charged with a number of serious narcotic offences. On March 23, 2016, he was released on a $50,000 recognizance with his father John Meulendyks (the “surety”) as the sole surety. The recognizance contains a number of terms including a term that the accused was to remain within his residence every day of the week, at all times except for a number of listed exceptions in the recognizance. The surety agreed to have the accused live at his home to ensure that he could fulfill his obligation of supervision.

[2] On May 9, 2016, the accused breached the house arrest condition and was arrested for breach of his bail. The breach is not in issue. In short, the accused left his address in the middle of the night and was arrested that same evening in possession of additional drugs. Nothing in the materials would suggest that the surety was aware or complicit in the breach. The record indicates that the surety was taking the requisite diligence to ensure that the accused was complying with the terms of the bail. The accused is clearly solely at fault for the violation.

[3] The surety filed an affidavit on the estreatment hearing. In that affidavit, the surety acknowledged that he understood the terms and conditions of the release and he understood what was at stake - namely the potential loss of the $50,000 which he pledged. The surety specifically states at paragraph 11 of the affidavit:

When we agreed to take Mark into our home we understood that our $50,000.00 was at stake. We did not understand that Mark was jointly responsible for the said monies- since he had no monies and was not employed. Indeed the Justice of the Peace in court explained that it was “my” money which was at stake.

[4] The transcript from the bail hearing indicates that the surety was clearly aware of his potential liability and clearly has sufficient assets to satisfy the amount pledged. At the bail hearing, the surety confirmed he owns his own house as well as another property in Barry’s Bay. He has equity of at least $400,000 in his home. The surety was prepared to pledge substantially more than the $50,000 if necessary to secure his son’s release. The surety was on disability at the time he made the pledge. He still remains on disability.

[5] Ms. Shemesh, appearing for both the surety and the accused, takes the position that the surety should not be held liable for the amount pledged as he exercised the proper diligence in ensuring the accused complied with the terms of the bail. He did everything he could to ensure compliance. With respect to the accused’s liability, Ms. Shemesh takes the position that nothing in the record indicates that the accused ever agreed to be liable. According to Ms. Shemesh, it would not be fair to impose such a financial burden on the accused when he never knowingly or voluntarily assumed it. Moreover, given the accused’s financial situation, his youth, and his current health and addiction issues, he is not in a position to pay.

[6] The Crown agrees that the surety exercised the necessary diligence in monitoring the accused and should not be held responsible for the pledge. Instead, the Crown takes the position that the accused should be held to account for the full $50,000. The Crown submits that by entering into the recognizance, the accused clearly assumed liability for the $50,000 in the event of a breach. Moreover, the accused is clearly at “fault” and accordingly should be made to bear the burden of the forfeiture.

[7] I disagree with Ms. Shemesh’s position that the accused cannot be held liable for the debt. The wording of the recognizance is clear that both the accused and the surety are each jointly and severally liable for the full $50,000 in the case of a breach. Moreover, the law is clear on this point. Section 771(3) explains in clear terms that the accused can be held liable for forfeiture of the amount pledged if the judge so orders. As Section 771(3) explains:

Judgment debtors of the Crown

(3) Where, pursuant to subsection (2), a judge orders forfeiture of a recognizance, the principal and his sureties become judgment debtors of the Crown, each in the amount that the judge orders him to pay.

[8] While I agree with the submissions of Crown counsel that the accused is solely at fault for the breach, imposing forfeiture against the accused would impose undue hardship because of his personal circumstances and his current financial situation. Moreover, it is unlikely that the accused would be in a position to pay.

[9] Having regard to the record and the submissions of counsel, I am also alive and sensitive to the efforts made by the surety to ensure compliance. I have no doubt that the surety made every effort to ensure that the accused complied with the terms of his bail. That being said, while fault is clearly a relevant consideration in assessing forfeiture against a surety, it is but one consideration. A strict fault-based approach to forfeiture ignores the fact that a person who signs on as surety provides an assurance of compliance to the Court and backs that assurance with a pledge of money. It is not merely a promise to make best efforts. Much like a guarantor of a loan, the surety vouches for the accused and agrees to be liable for his default.

[10] More importantly, the fact that a surety can lose the full amount of money pledged will routinely exert a substantial amount of moral pressure on the accused to comply with the terms of his bail (Canada (Attorney General) v. Horvath, 2009 ONCA 732). If the surety were to be excused from his pledge whenever he/she exercised the requisite diligence, this extremely significant aspect of the recognizance would lose its force. No doubt the surety would still have the incentive to exercise the requisite diligence. But the accused would not feel the same obligation. As Justice Trotter explains in The Law of Bail in Canada, 2d ed. (Toronto: Carswell, 1999) at p. 481:

An approach based on the fault or diligence of the surety neglects the effect this might have on the accused person. An accused with diligent and responsible sureties could abscond at the last minute, knowing that his/her sureties (perhaps family members or other close relations) will be relieved from forfeiture by having done their best.

[11] Similarly, in Horvath, at paragraph 40, the Court of Appeal referred with approval to the following statement made by Lord Widgery C.J. in R. v. Southampton Justices, ex parte Corker (1976), 120 S.J. 214:

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.”

[12] I find in the circumstances here, respect for the process requires that a substantial amount be forfeit by the surety despite his efforts to ensure compliance. The record indicates that there is clearly adequate equity in the assets owned by the surety to cover the entire amount. Indeed, it would be quite open to a judge to forfeit the full $50,000 against the surety in the circumstances. However, having regard to the diligence and efforts exercised by the surety here, and the fact that he remains on disability, I order that the surety John Meulendyks forfeit the sum of $25,000.

[13] I thank both counsel for their able submissions.

Justice C.F. de Sa

Released: August 16, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MARK MEULENDYKS Defendant REASONS FOR DECISION Justice C.F. de Sa

Released: August 16, 2017