R. v. Do, 2019 ONSC 4964

COURT FILE NO.: CR-18-90000014-00-BE

DATE: 20190823

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

OANH THI DO and CRYSTAL NGUYEN

Respondents

K. Benzakein, for the Applicant

J. Christie, for the Respondents

HEARD: July 19, 2019.

REASONS FOR DECISION

SCHRECK J.:

1After being arrested on a number of charges related to his alleged involvement in an illicit drug laboratory, Viet Hong Do was released on a recognizance of bail in the amount of $70,000 with his aunt, Oanh Thi Do, and his girlfriend, Crystal Nguyen, as sureties. One of his conditions was that he observe a curfew. Over a year after being released, Mr. Do was found by the police unconscious in a car in the early morning in violation of his curfew. It was later determined that he had consumed a significant amount of alcohol. Mr. Do ultimately pleaded guilty to failing to comply with his recognizance. The Crown now applies to have the sureties forfeit the entire amount of the recognizance.¹

2Ordinarily, in cases such as this where the amount of the recognizance is significant and where a surety has been reasonably diligent, a breach will result in forfeiture of a significant portion of the amount of the recognizance. However, for the reasons outlined below, the unusual circumstances of this case dictate a different outcome. In the result, Ms. Do is ordered to forfeit $10,000 and there will be no forfeiture order with respect to Ms. Nguyen

I. FACTS

A. The Bail Hearing

3On March 27, 2017, Viet Hong Do was arrested and charged with a number of Controlled Drugs and Substances Act charges. It was alleged that he had participated in setting up and operating a clandestine laboratory where ketamine was produced.

4On March 29, 2017, Mr. Do appeared before a Justice of the Peace for his bail hearing. Due to the nature of the charges, the onus was on Mr. Do to show cause why he should be released. Although both counsel at the bail hearing referred to there being a “consent release”, it soon became clear that there was little the parties agreed on. The “consent release” hearing ended up occupying 89 pages of transcript.

5Counsel for Mr. Do proposed a release plan with two sureties: Mr. Do’s aunt, Oanh Thi Do, and his girlfriend, Crystal Nguyen. The terms of the proposed plan were that Mr. Do would spend the day in the company of Ms. Do but would reside with Ms. Nguyen and spend nights with her at her home.

6Counsel for Mr. Do intended to call both prospective sureties to give evidence. However, Crown counsel (not Ms. Benzakein) advised the Court that the Crown did not view Ms. Nguyen as an acceptable surety because five years earlier, she had been arrested on drug charges that were later withdrawn. Without giving Ms. Nguyen an opportunity to testify, the Justice of the Peace advised defence counsel that “I certainly have to take into account the Crown’s concerns here”. She told defence counsel that because the Crown was only prepared to consent with a different surety, she would only hear evidence from Ms. Do.

7Ms. Do then testified. During her evidence, she alluded to the original release plan and said that she wanted Ms. Nguyen to share the responsibility of supervising Mr. Do, although she was prepared to have Mr. Do stay at her home and sleep on the couch. During her testimony, the Justice of the Peace said, “I know that you thought, or seemed to think that she was going – that he was going to go and sleep at [Ms. Nguyen’s] house, and that’s not happening, okay.”

8During Ms. Do’s testimony, it became evident that she did not have the financial means to pledge the entire $70,000 that the Crown was seeking. Crown counsel indicated that she was prepared to have Ms. Nguyen “provide some money to supplement the bail” but not to supervise Mr. Do. The following exchange then took place:

DEFENCE COUNSEL: Do you want to hear from Ms. Nguyen or …

CROWN COUNSEL: No, because unless Your Worship wants to be satisfied…

THE COURT: If she’s only being put up …

CROWN COUNSEL: … for the money, for the monetary…

THE COURT: …for money…

CROWN COUNSEL: …not for supervision, just to be…

THE COURT: …for the money, right.

CROWN COUNSEL: … clear.

THE COURT: And again, I don’t know, you know, about why the Crown was not prepared to accept her but, I respect her experience and, I am prepared to set the bail now with the one surety, but at 70,000. All right.

9Mr. Do was released on a $70,000 recognizance with several conditions. Over the objections of defence counsel, the Court imposed a curfew of between 10:00 p.m. and 6:00 a.m.

B. The Breach

10At 3:03 a.m. on April 29, 2018, over a year after Mr. Do’s release, police officers responding to a 911 call found him asleep or unconscious in the driver’s seat of a vehicle that was running. There was a pool of vomit on the ground near the driver’s door.

11On November 27, 2018, Mr. Do pleaded guilty to impaired driving and failing to comply with a recognizance. He was fined $1300 with respect to the former and sentenced to 30 days imprisonment with respect to the latter. He was later re-released on a new recognizance.

C. Testimony of the Sureties

(i) Ms. Nguyen

12Ms. Nguyen testified at the forfeiture hearing. She is 29 years old and employed as a hair stylist at her own salon. She was Mr. Do’s girlfriend at the time she agreed to act as his surety. She testified that the initial release plan was to have Mr. Do spend the night at her home and that the change in the plan that occurred at the bail hearing made her uneasy. Despite being referred to at the bail hearing as a surety “for the money, not for supervision”, she made sure that she was in contact with Mr. Do several times a day while he was on bail and visited him frequently. He never did anything to lead her to believe that he was likely to breach his bail.

13On the day that Mr. Do breached his bail, Ms. Nguyen had telephoned him at his aunt’s home after the beginning of his curfew and was satisfied that he was at the residence as required. After Mr. Do breached his bail, Ms. Nguyen ended her relationship with him as she viewed the breach as a sign of disrespect for her.

(ii) Ms. Do

14Ms. Do owned and operated a convenience store while she was Mr. Do’s surety. She testified that Mr. Do slept on a sofa in the basement of her home while he was on bail. She always ensured that he was home before she went to bed at night. She usually woke up at around 6:00 a.m. and would check to ensure that Mr. Do was home before leaving for work. Mr. Do usually left the house at about 6:30 a.m. to go to exercise.

15On the day that Mr. Do breached his bail, Ms. Do got up at 6:00 a.m. as usual. At around 6:30 a.m., she went to the basement and found that Mr. Do was not at home, which was unusual. She became concerned and tried calling him, but there was no answer. She called him repeatedly throughout the day but could not reach him. She later learned from his lawyer that he had been arrested.

II. ANALYSIS

A. Overview

16Section 771(1) of the Criminal Code grants the court with a discretion with respect to whether forfeiture of an amount pledged by a surety should be ordered and, if so, in what amount. The surety bears the onus of demonstrating why full forfeiture should not be ordered: Canada (Attorney General) v. Horvath, 2009 ONCA 732, 248 C.C.C. (3d) 1, at para. 27.

17A central consideration in determining whether forfeiture should be ordered is what has been referred to as “the pull of bail”, that is, the moral pressure on an accused to abide by his bail conditions in order to ensure that his sureties, who are often friends or family members, do not suffer as a result of his non-compliance: Horvath, at paras. 40-43. While full forfeiture is the most effective way to ensure the “pull of bail”, the jurisprudence makes it clear that there are a number of other factors which a court must consider, especially in cases where the amount at issue is significant. These factors were recently enumerated by Durno J. in R. v. Griffiths, 2019 ONSC 4044, at para. 31:

(a) The amount of the recognizance,

(b) The circumstances which caused the surety to enter the recognizance to secure the accused’s release, especially whether there was any duress or coercion,

(c) The period of time between the release order and the breach,

(d) The surety’s intended role in the supervision where more than one surety signs,

(e) The surety’s diligence,

(f) Whether there were any circumstances that might have alerted the surety that the accused was likely to abscond or otherwise breach

(g) The sureties’ means at the time the release order was signed,

(h) Any significant change in the surety’s financial situation between the time the recognizance was entered and the breach and particularly between the breach and the estreat hearing. This is a relevant consideration notwithstanding that the surety voluntarily agreed to be bound by the amount in the recognizance. Canada v. McNeish, [1989] O.J. No. 681 (H.C.)

(i) The surety’s post-breach conduct, especially attempts to assist the police in apprehending the accused,

(j) The nature of the relationship between the surety and the accused as well as the level of control the surety had over the accused's behaviour, including whether the relationship was likely to persuade the defendant to return if he or she absconded

(k) Whether the surety assisted the accused in defaulting

(l)Whether the surety had day-to-day contact with the accused

(m) Where the breach is failing to attend court, what steps were taken by the surety to ensure the accused's attendance at court

(n) Whether the surety brought the accused before the justice of the peace.

See also Horvath, at para. 51; Hon. G. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters, 2017), at §13.3(e)(ii).

18In this case, I am satisfied that the sureties have the financial means to satisfy a forfeiture order and that neither agreed to be a surety as a result of coercion or duress. There is no suggestion that either surety encouraged or assisted Mr. Do in breaching his bail conditions. Since Mr. Do was arrested almost immediately, the sureties’ conduct following the breach is not a factor. The real issue, as I see it, is whether the sureties were diligent.

B. Ms. Nguyen

19Ms. Nguyen was, in my view, a credible witness and I accept that she did her best to remain in contact with Mr. Do and to ensure that he abided by the terms of his bail. Mr. Do had been on bail for a year prior to the breach and I accept that there was no reason to suspect that he would not continue to do so.

20Diligence on the part of a surety will usually result in some but not total relief from full forfeiture: Griffiths, at paras. 48-50; R. v. Phillips, 2018 ONSC 5216, at para. 11; R. v. Meulendyks, 2017 ONSC 4462, at para. 12. This is because it will usually be necessary for there to be some forfeiture to give effect to the “pull of bail”: Horvath, at para. 41. However, in the unusual circumstances of this case, I would grant Ms. Nguyen full relief because of the conduct of the Crown at the initial bail hearing.

21At the initial bail hearing, Ms. Nguyen was prepared to supervise Mr. Do and to have him stay in her residence at night. However, the Crown was unwilling to accept her as a surety because she had been charged with a drug offence five years earlier that was later withdrawn. In my view, the Crown’s objection to Ms. Nguyen based on dated allegations that were never proven was unreasonable.

22Unfortunately, the presiding Justice of the Peace abdicated her role as an impartial decision-maker and simply deferred to the Crown. Despite this having been referred to as a “consent release”, it was obvious that the parties disagreed on the terms of the release order. In these circumstances, it was the Justice of the Peace’s duty to make an impartial and independent decision about what terms were appropriate. Unfortunately, instead of doing so she merely deferred to Crown counsel because of her “experience”. In the result, Ms. Nguyen was not permitted to testify and the plan devised by the sureties was replaced with a less effective plan.

23Ms. Nguyen was prepared to supervise Mr. Do in her home at night, which was the time at which he decided to break his curfew. Had the proposed plan been put into effect, Ms. Nguyen would have been in a position to prevent the breach because Mr. Do would have been in her company. In my view, having refused to agree to have Ms. Nguyen supervise Mr. Do at night (or, for that matter, at all), it is not now fair for the Crown to demand that she forfeit $70,000.00 because of a breach that she may well have been able to prevent but for the Crown’s position.

24I would add that in my view, there is no such thing as a surety “for the money, not for supervision”. A surety’s primary role is to supervise the accused: R. v. Patko, 2005 BCCA 183, 197 C.C.C. (3d) 192, at para. 22; R. v. Ellis, 2016 ONCJ 168, at paras. 26-28; Trotter, at §7.2(b). The Justice of the Peace should not have acceded to the Crown’s suggestion that Ms. Nguyen be liable for the amount of the recognizance but not responsible for supervising Mr. Do. The fact that Ms. Nguyen undertook to supervise Mr. Do despite the Crown’s position is, in my view, a further reason why she should be relieved from forfeiture.

C. Ms. Do

25Ms. Do is in a somewhat different position than Ms. Nguyen. She accepted the responsibility of supervising Mr. Do. I find that she did her best to do so. However, as noted earlier, diligence on the part of a surety will usually result in some but not total relief from forfeiture.

26While Ms. Do is in a somewhat different position than Ms. Nguyen, the Crown’s position with respect to Ms. Nguyen is nevertheless relevant. Ms. Do and Ms. Nguyen came to the bail hearing with a proposed plan of release. It was, in my view, a sensible plan and one which may well have prevented Mr. Do from breaching his bail. Unfortunately, the Crown prevented that plan from being put into effect and did so for reasons which were, in my view, unreasonable. Also unfortunately, the presiding Justice of the Peace uncritically accepted the Crown’s position instead of making an independent decision. As a result, the situation which allowed Mr. Do to breach his bail or, at least, made it easier for him to do so was partly of the Crown’s own making. In my view, this entitles Ms. Do to more substantial relief from forfeiture than would otherwise be the case.

III. DISPOSITION

27In the result, the Crown’s application for forfeiture with respect to Oanh Thi Do is granted in part and Ms. Do is ordered to forfeit $10,000. The application with respect to Crystal Nguyen is dismissed.

Footnotes

1. 1Mr. Do’s forfeiture hearing has been scheduled separately.