Court File and Parties

COURT FILE NO.: DATE: 20180905 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant

Meghan Scott, for the Applicant

• and -

CASSIDY PHILLIPS Respondent

Shaffie Shayan, for the Respondent

Endorsement

D.L. Corbett J.:

[1] Mr Phillips is charged with domestic violence against his estranged spouse. He was released on bail, on terms. He breached those terms and was re-arrested. He applied again for bail.

[2] Mr Phillips’ daughter, Cassidy, came forward as a surety on behalf of her father. She pledged $81,000, the equity in her matrimonial home. Cassidy Phillips was cautioned in bail court about the consequences of pledging this money, and the substantial risk she faced if her father breached his conditions again. Ms Cassidy supported her father and wanted to help him get out of jail. She went ahead as his surety.

[3] A few short days after he was released on his daughter’s surety, Mr Cassidy absconded. He has not been apprehended and has not been brought to trial.

[4] The Crown applies for forfeiture of the $81,000 pledged by Ms Cassidy.

[5] Ms Cassidy acknowledges that her father has breached his release terms, and that she pledged the $81,000 in support of his bail. She argues that forfeiture should be limited to only a portion of the pledge – perhaps $10,000 or $20,000. She argues that she was manipulated by her father, whom she loves, and that she herself has done nothing wrong. She reported her father’s disappearance to police immediately and has done what she could, as a surety, to help locate her father.

[6] The Crown acknowledges that Ms Phillips acted appropriately as a surety once her father disappeared. The Crown agrees that I may take this into account in discounting the amount to be forfeited – both to give Ms Phillips credit for acting as she promised she would act when she stood as surety, and to provide an incentive to other sureties to behave in like manner if confronted with a similar circumstance.

[7] The overarching principle in these cases is not the relative blameworthiness of the surety, but the proper functioning of the bail system. Bail is set with a view to binding the conscience of the accused. That is, the bail court fixes bail in an amount and on terms that persuade the court that the accused is unlikely to breach the terms because of the consequences that will flow to his sureties. If a surety is released from her promise because it is only the accused who is at fault, then the motive force behind our bail system would be undercut. See Canada v. Mirza, 2009 ONCA 732 at para. 41.

[8] In this case the breach is serious and has (thus far) defeated the prosecution against the accused – the very thing against which the surety promise is intended to guard. See Romania v. Iusein, 2016 ONSC 623, para. 26, per Speyer J. If Mr Phillips had subsequently been located and re-apprehended, that could be a fact in mitigation of total forfeiture. If Cassidy Phillips had been able to assist police to re-apprehend Mr Phillips quickly, that could have strengthened this mitigating factor. Consequences matter. Canada v. Mirza, 2009 ONCA 732, at para. 60.

[9] I appreciate that the financial consequences of forfeiture to a surety may be considered in reducing the amount forfeited. However, the cases suggest that it is unanticipated changes in financial circumstances that can warrant an exercise in discretion to reduce the amount forfeited. If the consequences of forfeiture are much as they appeared to be at the time the surety promise is given, then there is a less compelling basis for reduction. See R. v. Wilson, 2017 ONCA 229.

[10] Finally, I note the extent to which Ms Cassidy may have been manipulated and, indeed, preyed upon by her father. This is regrettable. But there are two sides to this point. Sureties are often close family members or friends – it is their relationship to the accused that motivates them to undertake risk on behalf of an accused. Ms Cassidy wanted her father released on bail, on her surety. She would have been rightly angered – and felt disrespected – if her promise had been rejected on the basis that she was a woman – a daughter – and somehow not capable of making the autonomous decision to undertake risk on behalf of her father. She was warned and cautioned about doing this, but her decision to undertake risk on her father’s behalf was respected and accepted.

[11] I accept the argument that there should be some reduction in the amount forfeited to reflect Ms Cassidy’s good faith efforts to report her father’s disappearance. I fix the amount to be forfeited at $60,000, a reduction of roughly 25% in the amount pledged, to acknowledge Ms Cassidy’s conduct after her father disappeared. It is so ordered.

D.L. Corbett J. Date: September 5, 2018