Court File and Parties

COURT FILE NO.: CR-15-04125-BE

DATE: 20180305

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Adam Vickerson

BEFORE: The Honourable Mr. Justice C.F. de Sa

APPEARANCES: Avik Ghosh, for the Crown Adam Vickerson, Self-Represented, In-Custody Laura Hill, Eric and Elizabeth Hill, Sureties

HEARD: January 17, 2018

ENDORSEMENT

DE SA J.:

Background

[1] The Crown has brought an application seeking forfeiture of the recognizance.

[2] Laura Hill, the surety, is the common-law wife of Mr. Vickerson. She and Mr. Vickerson have 2 young children together. On September 14, 2015, Ms. Hill signed Mr. Vickerson out on bail and pledged $100,000 in support of his release. She also consented to the variation of the bail a few months later permitting Mr. Vickerson to have an exception for employment.

[3] On December 3, 2015, at 21:07 York Regional Police conducted a traffic stop at 5375 Lakeshore Road in the Town of Whitchurch-Stouffville as the vehicle in question had an expired validation sticker.

[4] The vehicle pulled into the driveway and parked near the back garage on the property. York Regional Police had observed Mr. Vickerson’s vehicle in the driveway of 5375 Lakeshore Road, Stouffville for the past 3 nights.

[5] Police approached the vehicle and the female passenger exited the passenger side and the male driver also exited the vehicle. A small child was in the rear car seat.

[6] The driver was advised of the reason for the stop, and the officer requested his driver’s licence and ownership and insurance. The driver was identified as Adam Vickerson. Mr. Vickerson is well known to York Regional Police and was currently on various charges that were still before the courts. After doing a check, police discovered that Mr. Vickerson was on a bail which included the following conditions stating:

“Mr. Vickerson may only leave the residence in the company of a surety for the purpose of seeking employment and pre-arranged medical or emergency reasons. Reside 24 hours per day at 194 Dean Burton Lane, Newmarket, Ontario, and not leave residence except when in presence of Laura Hill or Eric Hill or Elizabeth Hill, while travelling to/from employment @ 126 Bradwick Rd, Vaughan or Job sites directed by employer.”

“Mr. Vickerson may only leave the residence in the company of one or more of his sureties for the purposes of seeking out employment and for pre-arranged medical reasons or emergency medical reasons.”

[7] The female in the vehicle with Mr. Vickerson was his ex-girlfriend Timi Lynn Byron, residing at 5375 Lakeshore Road, Stouffville. Ms. Byron was not one of Mr. Vickerson’s sureties, nor was Mr. Vickerson in the company of any of his designated sureties. When questioned, Ms. Byron acknowledged that Mr. Vickerson had been staying there with her at 5375 Lakeshore Road.

[8] Mr. Vickerson was charged with breach of recognizance and taken into custody. On January 4, 2016, Mr. Vickerson pleaded guilty to both counts of Fail to Comply Recognizance and received a 60 day jail sentence (concurrent). The bail was noted for estreatment.

Evidence of Ms. Hill

[9] Ms. Hill testified on the application. She testified that she believed that Mr. Vickerson was at work, and she was unaware that he was meeting up with his ex-girlfriend. Obviously, she was unaware of him being involved in an extramarital affair. His work schedule would vary, and she was made to believe he was working at the time.

[10] Ms. Hill testified that while she had the equity in her home at the time she made the pledge, her financial circumstances have changed. She and Mr. Vickerson sold the house to pay off existing debts, and to finance their day to day needs. Any equity that she had in the house is gone. She now works two jobs, supports her 2 children and can barely make ends meet. According to Ms. Hill, she no longer has the money to pay the amount pledged. Ms. Hill makes less than $40,000 per year and she no longer has any assets. Mr. Vickerson has recently been convicted for very serious drug offences and he will be serving a substantial period of incarceration. He was the primary income earner. He will no longer be in a position to assist with paying bills as he is in custody.

[11] Ms. Hill testified that she thought this was all finished when Mr. Vickerson pled guilty to the offence. She never realized that the Crown would be coming after her for the money over two years after the events. She has nothing left. She has no way to pay the amount that was originally pledged. It would impose undue hardship on her and her children.

[12] Mr. Vickerson also testified on the hearing and took full responsibility for the wrong. He explained that the breach was his responsibility and Ms. Hill had nothing to do with it.

[13] In this case, it is doubtful that the surety exercised the requisite diligence. However, there is no indication that she was complicit. On the contrary, the evidence suggests she was a victim. She trusted Mr. Vickerson, and he let her down. She believed Mr. Vickerson was working at the time, and he wasn’t.

[14] As the courts have recognized, 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). 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.

[15] 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.”

[16] In Horvath, the Ontario Court of Appeal also set out the relevant considerations for a judge in making a decision on the appropriate amount for forfeiture under s. 771(2).

In the end, the judge must attempt to balance various considerations in exercising the discretion conferred by s. 771(2). I do not think it is helpful or even possible to develop an exhaustive list of the factors that the judge should take into account in exercising this discretion. Further, not all factors will be of equal relevancy or weight in all cases. A review of the cases does, however, show that there are categories of factors that the courts regularly take into account, including: the amount of the recognizance; the circumstances under which the surety entered into the recognizance, especially whether there was any duress or coercion; the surety’s diligence; the surety’s means; any significant change 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 accused and the surety.

[17] A judge, on an estreatment hearing 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.

[18] Ms. Hill’s financial circumstances have changed substantially since the original pledge. There is also no indication that she intended to subvert the recognizance by dissipating assets. She and her young family have already been through a lot, and no doubt have difficult times ahead. I see no reason for this Court to add to their challenges. I have no doubt that forfeiture would impose extreme hardship for Ms. Hill and her family. In the circumstances here, given her current financial circumstances, and the needs of her young family, I will excuse Ms. Hill from her pledge.

[19] Mr. Vickerson will still be liable for the $100,000.

Justice C.F. de Sa

Date: March 5, 2018