COURT FILE NO.: 13-30424 DATE: 20210304

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – SCOTT BULLEN Applicant

COUNSEL: J. Legrand, for the Crown M. Johnston, for Scott Bullen

HEARD: February 16, 2021

REASONS REGARDING ESTREATMENT MOTION

Aitken J.

Nature of Proceedings

[1] This is a preliminary motion by Scott Bullen (a surety under a recognizance provided by his late brother, David Bullen) challenging the jurisdiction of the court to hold a forfeiture hearing under s. 771(2) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”).

Background Context

[2] On October 21, 2013, David Bullen was charged under Project Adelaide with numerous offences relating to the trafficking of cocaine. He was released on consent on November 8, 2013 on a recognizance with four sureties, one being his brother, Scott Bullen. David Bullen was subsequently arrested again on October 25, 2016 as part of Project Wildwood and charged with 25 counts relating to drug trafficking, gun offences, and numerous breaches of his earlier recognizance. On November 28, 2016, David Bullen consented to his continuing detention. His bail was revoked and the certificate of default (Form 33) was endorsed on that date by the Clerk of the court on the instructions of Justice of the Peace Doyle. Scott Bullen is challenging the validity of that certificate of default on two grounds: (1) the certificate was endorsed prematurely; and (2) insufficient information was provided in the certificate.

[3] On July 31, 2018, David Bullen was convicted of the Project Adelaide charges after a lengthy trial in the Superior Court of Justice. He was sentenced on November 30, 2018 to 10 years imprisonment.

[4] On August 13, 2018, David Bullen pled guilty to charges laid in June 2017 relating to mortgage fraud and criminal interest rates regarding events between 2002 and 2013. Initially, David Bullen’s wife, Erika Bullen, and his brother, Scott Bullen, were co-accused on the indictment. After David Bullen’s guilty plea, the charges against Erika Bullen and Scott Bullen were stayed.

[5] On December 18, 2018, David Bullen pled guilty to the 25-count Project Wildwood indictment, including 11 breaches of the November 8, 2013 recognizance. Sentencing was adjourned to January 2019.

[6] On December 29, 2018, David Bullen died in prison. Scott Bullen argues that David Bullen’s death has effectively ended any proceedings the Crown can bring against Scott Bullen as a surety under the November 8, 2013 recognizance.

[7] On January 11, 2019, all remaining charges against David Bullen were stayed by the Crown pursuant to s. 579(1) of the Code. Scott Bullen argues that no further action can be taken by the Crown in regard to the November 8, 2013 recognizance following the staying of charges against David Bullen.

Issue One: When and how the certificate of default (Form 33) was completed

[8] On November 28, 2016, at a hearing before Justice of the Peace Doyle, the Crown, under s. 524 of the Code, sought the cancellation of the consent release order granted to David Bullen on November 8, 2013. The grounds for seeking the cancellation of the release order were that David Bullen had been charged with additional indictable offences and with various breaches of the conditions of his release. Crown counsel put on the record the nature of the new offences with which Mr. Bullen had been charged together with a summary of the facts the Crown intended to prove to justify the charges. In doing so, the Crown referred to a police agent engaged by the police who acted at the direction of Mr. Bullen and the evidence that the police agent would be able to provide. Crown counsel also listed several conditions in the release order that it was alleged Mr. Bullen had breached - allegations to which the police agent could speak.

[9] Defence counsel consented to the Crown’s s. 524 application, stating: “[t]here are so many new charges and the nature of the charges, together with the breaches, lead me to the inevitable conclusion at this time that a 524 is a reasonable request”. I take from this statement that defence counsel conceded that David Bullen had breached his release order. In addition, he conceded that there were reasonable grounds to believe that Mr. Bullen had committed an indictable offence while being subject to the release order. Thus, both grounds which would justify a cancellation of the release order under s. 524(3) of the Code were in play.

[10] At the conclusion of the hearing, Crown counsel asked that the recognizance be endorsed for the purpose of bail estreatment. No objection was raised by defence counsel as to the timing of the request – instead both counsel simply thanked the Justice of the Peace. The Clerk of the court completed the certificate of default (Form 33), indicating that the nature of the default was “breach” and that the reason for the default was “breach of terms of recognizance.” The names and addresses of the sureties were provided in an appendix attached to the recognizance.

[11] Scott Bullen argues that the certificate of default completed in this matter was deficient in two respects: (1) it was completed prematurely, namely prior to David Bullen being found guilty of breach of the recognizance; and (2) it did not contain all of the information mandated under s. 770(1) of the Code. In reality, these two complaints overlap.

[12] Section 770(1) of the Code reads as follows:

770(1) If, in proceedings to which this Act applies, a person who is subject to an undertaking, release order or recognizance does not comply with any of its conditions, a court, provincial court judge or justice having knowledge of the facts shall endorse or cause to be endorsed on the undertaking, release order or 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) Once endorsed, the undertaking, release order or recognizance must be sent to the clerk of the court and shall be kept by them with the records of the court.

(3) A certificate that has been endorsed on the undertaking, release order or recognizance is evidence of the default to which it relates.

(4) If, in proceedings to which this section applies, the principal or surety has deposited money as security for the performance of a condition of an undertaking, release order or recognizance, that money must be sent to the clerk of the court with the defaulted undertaking, release order or recognizance, to be dealt with in accordance with this Part.

[13] Before dealing with the two issues relating to the certificate of default endorsed in this case, I start with the observation that the precursor to s. 770 of the Code, the earliest version of which appeared in the 1892 version of the Criminal Code, was originally intended to deal only with a breach of a recognizance used to secure the accused’s attendance in court. The precursor to s. 770 was not intended to deal with recognizances relating to the behaviour of accused persons while on bail. In the Criminal Code, S.C. 1953-54 c. 51, the precursor to s. 770 appeared in virtually the same form as it appears today by pulling together sections from earlier versions of the Criminal Code dealing with the commencement of forfeiture proceedings based on non-appearance, putting them under one section (s. 676), and expanding their application to recognizances that included conditions other than simply a promise to appear. Despite the expanded applicability of the section, the wording of the section and of the certificate of default it referred to (Form 29 at the time) remained substantially the same as it had been when the only type of recognizances being dealt with were those dealing with a promise to appear. The current Form 33 came into existence in 1970 and, subject to minor amendments, has remained the same until now. (See R. v. Stricker, 2013 ABPC 146, at paras. 38-67, for an excellent review of the historical evolution of s. 770 of the Code.)

[14] This evolution of s. 770 of the Code and Form 33 has led to the reality that, although courts have some idea as to what is intended when the breach of recognizance relates to a failure to appear, both s. 770 and Form 33 leave many questions unanswered when the breach of recognizance relates to another condition – as is the case here. The Code is silent on how a default is to be proven when the default occurs outside the courtroom (for example, through the commission of another offence), rather than in the face of the court (by non-appearance). The Code offers no guidance on what procedure is to be followed, what type of evidence tendered, and what standard of proof met before the certificate of default is endorsed. The Code is also silent as to how the court is to determine the reasons for a default or the impact the default will likely have on the ends of justice.

Timing of Completion of Form 33

[15] There is conflicting case law as to the nature of the proof required before it can be said, for the purpose of s. 770(1) of the Code, that an accused has not complied with one or more conditions of an undertaking, release order, or recognizance to which he or she is subject. This, in turn, speaks to the issue of when a certificate of default should be endorsed.

[16] In R. v. Goy (1994), 119 Sask. R. 57 (Q.B.), Goldenberg J. found that a certificate of default endorsed at the time a person was charged with breach of recognizance but prior to pleading or being found guilty of the offence was invalid. Goldenberg J. explained, at para. 11:

The provisions of s. 770(1) are conditions precedent which must be in existence at the time the certificate is endorsed on the recognizance. Either a person is in default or she is not. The Criminal Code in the bail forfeiture provisions does not provide for “maybe”. If a person is in default, that is to say, has pled guilty or has been found guilty of an offence which at law amounts to a breach of the recognizance then, and only then, should leave to granted to the Crown to apply for forfeiture. A certificate of default pursuant to s. 770(1) should then be endorsed on the recognizance in question.

See also R. v. Esakin (1999), 179 Sask. R. 303 (Q.B.), at para. 18. In R. v. Boughner, [1999] O.J. No. 3769, 43 W.C.B. (2d) 517 (S.C.J.), Wright J. declined to deal with the issue of when a certificate should be completed but thought the approach adopted in Saskatchewan had merit.

[17] In R. v. Parsons (1997), 124 C.C.C. (3d) 92, 161 Nfld. & P.E.I.R. 145 (Nfld. C.A.), Crown counsel argued that, as soon as Green J.A. determined that there were reasonable grounds to believe that the accused had committed an indictable offence while on bail and as a result cancelled his recognizance, the court was required to endorse a certificate of default on the recognizance and start estreatment proceedings. At paras. 37-38, Green J.A. rejected this submission and provided the following guidance in regard to how s. 770(1) of the Code should be interpreted.

The Crown's position is that I have no discretion in the matter whatsoever. Trotter, in his book The Law of Bail in Canada (1992) on the other hand is of the view that there is room for discretion notwithstanding the use of the word "shall", but that it is "quite narrow" (p. 305). The existence of a discretion is also confirmed by the obiter statement by Legg, J.A. in Purves v. Canada (Attorney General) (1990), 54 C.C.C. (3d) 355 (B.C.C.A.); [leave to appeal to SCC refused Nov. 22, 1990 [Reported (1990), 127 N.R. 79 (note) (S.C.C.)]] at p. 366 that "The application to endorse ... is in the discretion of the judge before whom the application is made". I agree that if the judge makes a finding that a default occurs, he or she is required to certify the default; however, s. 770 is predicated on the finding of the existence of a default. Whether such a finding ought to be made is in the discretion of the judge. While an application by the Crown is not technically required to invoke the section, the absence of a formal application and its impact on the accused and any sureties is a factor to be considered. Trotter, after referring to the trial and appeal decisions in Purves, states at p. 305:

... these decisions ... characterize the endorsement process as an application brought by the prosecutor, during which the accused and his or her sureties have the opportunity to oppose the endorsement. This, in turn, entails the exercise of a discretion by the judge before whom the application is made. However, neither of the decisions elaborate on the form which this opposition might take.

It might be said that the time for notice to and the involvement of the sureties is at the forfeiture hearing and not at the endorsement stage; however, endorsement itself has consequences affecting the accused and sureties. Section 770(3) makes the certificate evidence of the default to which it relates. At the forfeiture stage, therefore, the accused and sureties will have to overcome the evidentiary weight of the certificate of default. While I would not go so far as to say that a judge ought never to endorse a certificate of default without hearing the accused and sureties (a clear violation such as a failure to appear in court in accordance with a condition which could be verified without weighing evidence, might be a case in point), the manner in which the issue arises and the degree of involvement of the sureties are factors which a judge could properly consider in determining whether it is appropriate at that stage to make a finding of default. … As well, whether or not the alleged default is the subject of a separate charge under s. 145 of the Criminal Code which would have the effect of determining, on a criminal standard of proof, whether a default did occur, is relevant to determining whether another court at an earlier stage should declare a default.

In the circumstances of this case, while it is certainly true that I have knowledge of the evidence as presented by the Crown, I specifically have not made a finding of fact that Mr. Parsons has contravened his recognizance. My ruling has only gone so far as to determine that there are reasonable grounds to believe that such a contravention has occurred by virtue of the commission of an indictable offence. I do not consider it appropriate at this stage under the present circumstances to proceed to determine whether in fact a default has occurred. The failure to certify any default at this stage would not, of course, preclude the Crown from seeking such a certificate if, following trial of the charges for breach of recognizance, Mr. Parsons is found guilty.

[18] In R. v. Cobet, [2001] O.J. No. 3844 (S.C.J.), the breach of condition of a recognizance was non-attendance by the accused. Eberhard J., at para. 5, analyzed the situation as follows:

If the accused has absconded and is never returned to the jurisdiction of the court, there will be no occasion that will trigger the endorsement. A surety who may have breached their obligations would never be subject to forfeiture proceedings if a certificate of default cannot be endorsed until after trial of the allegation of fail to appear. That is an absurd interpretation of section 770 in relation to fail to appear even though the same interpretation may be quite sensible for an alleged fail to comply.

[19] In R. v. Dallaire, [2001] O.J. No. 140 (C.A. [In Chambers)], Laskin J.A. was considering a Crown application to revoke an appellant’s bail pending appeal and for a hearing to determine whether his recognizance should be forfeited. It was alleged that the appellant had breached a term of his release regarding the financial transactions he was allowed to conduct. The appellant denied that he had breached this condition. In regard to the timing of the Crown’s application, Laskin J.A. stated the following at paras. 21 and 22:

Under s. 770 of the Code, once a judge determines that a person has failed to comply with a condition of the recognizance, the judge must issue a certificate of default. He or she has no discretion to do otherwise. In turn, the issuance of a certificate is a condition precedent to the holding of a hearing under s. 771(1) of the Code.

In my view, the Crown’s application for a certificate of default is premature. The breach of recognizance on which the Crown relies is the subject of separate charges under s. 145 of the Code. As I have said, those charges have not yet come to trial. It is inappropriate to decide whether to issue a certificate until those charges have been dealt with by the trial court. If Mr. Dallaire is found guilty, a certificate can be issued; if he is acquitted, then presumably the Crown will abandon its application. Unlike the Crown’s application for revocation of Mr. Dallaire’s bail, no urgency surrounds the forfeiture proceedings. I think it far preferable that those proceedings await the outcome of the trial of Mr. Dallaire’s alleged breach of recognizance, a breach that he denies having committed.

[20] A different approach was adopted in R. v. Mignacca, [2008] O.J. No. 2880, where Marrocco J., as he then was, noted that s. 770 of the Code is silent about the timing of the endorsement of the certificate of default. He decided that no useful purpose would be served by reading into s. 770 the requirement that the certificate of default can only be endorsed after a conviction for failing to comply with the recognizance. He reasoned as follows, at para. 22:

It is better to give the words in section 770 their plain and ordinary meaning, and to allow the accused and the surety in these proceedings to review the decision of the justice of the peace endorsing the certificate, and to otherwise prove that the bail was not properly estreated to this court. In this case such an attack would fail because firstly there was evidence of the default before the justice of the peace who endorsed the certificate and secondly because the justice’s decision was confirmed by the fact that [the accused] pleaded guilty to failing to comply with this recognizance on December 11, 2007 [after the certificate of default had been signed].

[21] In Stricker, Anderson, A.C.J. agreed with the courts in numerous earlier cases that, where the substance of the alleged default is a condition of the recognizance other than non-attendance, and the offence of breach of recognizance is still before the court for trial, a Form 33 endorsement is premature and should await the outcome of the trial. (See Goy, Parsons, Dallaire, R. v. Taylor, [2002] O.J. No. 4246 (S.C.J.), R. v. Hoff, 2006 ABQB 414, R. v. Aw, 2008 ABQB 261, and R. v. Farrell, 2012 ABQB 744.) This is because the endorsement of the certificate of default must be based on evidence and not allegations. Another option would be for the Crown to independently prove the breach through evidence tendered when the certificate was being sought. In either case, the standard of proof necessary for a certificate of default to issue is balance of probabilities (not beyond a reasonable doubt).

[22] In Stricker, Anderson, A.C.J. provided the following guidance, at paras. 127-134:

I find, as a general rule, that the Crown is entitled to bring an application for the endorsement of a Form 33 whenever the Crown is in a position to prove the default, or upon a default being admitted. Often, this will occur at the time of a bail revocation, but not always and there are several qualifications.

If, at the time of a bail revocation application, a default is admitted, no further proof would be required and the judge hearing the revocation could go on to determine the other factors set out in s. 770, assuming the Crown is asking that the matter be remitted for forfeiture.

If the default is not admitted, then it would have to be proven by evidence or admissions of fact. If there are no admissions of fact, then the normal requirement of calling testimonial or other forms of evidence would apply. Mere allegations through Crown counsel would not suffice. A hearing would have to be scheduled.

If the Crown is relying upon reasonable grounds to believe an indictable offence has been committed as the basis for revoking bail under s. 524, then, absent an admission by the Defence, this will not be proof of the default. It will simply be proof of reasonable grounds. A hearing to determine the breach/default would have to be scheduled.

Where the accused has been charged with an offence that is alleged to be the substance of the default, or is charged with a breach of the recognizance, or both, then the issuance of a Form 33 should be deferred until the trial of that matter is heard, or a guilty plea has been entered. The trial judge who hears the trial will be in the best position to know the facts.

Following the trial, the application for the issuance of a Form 33 would be made. Consistent with Farrell, supra, and Cobet, supra, such an application could even be made if the accused was acquitted, but the court would have to be persuaded that a default had been established on a balance of probabilities.

There is no jurisdictional impediment to a Crown seeking to prove a default at the time of a bail revocation, even where the substance of the breach has been set down for trial but this is not a practice that should be encouraged because it is an inefficient use of judicial resources and it may create the appearance of inconsistent findings, even though, with the differing burdens of proof, the findings may not be inconsistent.

In the circumstance where the Crown seeks to prove a breach, which is contested at the time of the revocation, the court’s willingness and ability to hear the matter at that time will determine whether the application proceeds or whether it is simply adjourned to the same date as the scheduled hearing of the same issue.

[23] In R. v. Moulton, 2020 BCPC 38, the accused entered into a recognizance in regard to a number of drug-related offences in British Columbia. Before the conclusion of the case, he was charged with additional offences in Ontario and granted bail in their regard. The Crown in British Columbia did not seek to revoke the accused’s bail in that province but did attend in court to get a certificate of default under s. 770(1) of the Code and set a date for a forfeiture hearing. After the certificate of default had been endorsed, but before the forfeiture hearing had occurred, the accused was acquitted of the British Columbia charges to which the recognizance pertained. The Crown applied to court for an adjournment of the forfeiture hearing pending the outcome of the Ontario charges. The accused opposed the adjournment and argued that the estreatment proceedings had been brought prematurely given the outcome of the Ontario charges had yet to be determined and no default of the recognizance had yet been established. Sutherland J. agreed with the accused that the certificate of default should not have issued and ought to be quashed because there was no evidentiary basis upon which a finding could be made that the accused had not complied with a condition of his recognizance.

[24] There is nothing in s. 770(1) of the Code that requires Form 33 be signed only after a conviction for breach of a recognizance. The only aspect of s. 770(1) of the Code that speaks to the issue of timing is reference to the justice “having knowledge of the facts” i.e. the facts relating to non-compliance with the conditions of a release order or recognizance. The section does not speak of a justice having knowledge or proof of a conviction for non-compliance. If that were an intended condition to completion of the form, this section of the Code could very simply have stated that. It does not. “Knowledge of the facts” is a broader concept than knowledge or proof of a conviction.

[25] There are a number of potential reasons why s. 770(1) does not refer to a conviction for a breach. When the precursors to the current section first appeared in the Criminal Code, the only type of recognizance being dealt with were those regarding appearance in court. Non-appearance was apparent to the presiding judge who then had the necessary knowledge of the fact of non-compliance. An additional reason why the current version of s. 770(1) does not require a conviction for breach of recognizance prior to a certificate of default being endorsed could be that this would signal that prior to estreatment proceedings commencing, there must be proof of a breach beyond a reasonable doubt. Numerous cases have confirmed that proof in forfeiture proceedings is on a balance of probabilities only. Finally, it must be remembered that, although the signing of a certificate of default has some legal ramifications (such as putting cash deposits or pledged sums beyond reach for use on future bail applications), Form 33 only starts the process that leads to a forfeiture hearing; it does not determine anyone’s rights on a final basis. At the forfeiture hearing, the issue of whether a default actually occurred can be revisited before a determination is made as to what results should flow from any such breach (R. v. Koh, 2005 BCPC 448, at para. 2). It is true that, as a result of s. 770(3), at the time of that hearing, Form 33 will be considered prima facie proof of a breach; however, the Crown, the accused, and any sureties are entitled to tender further evidence as proof of compliance or non-compliance with the terms of the recognizance.

[26] Interpreting s. 770(1) as not requiring proof of conviction for a breach of conditions makes sense when one considers that one form of non-compliance with a recognizance is not appearing in court when required to do so. If an accused has absconded from the jurisdiction, and possibly never found, there may never be a finding of guilt for a breach of conditions beyond a reasonable doubt. That should not prevent the Crown from moving forward with estreatment proceedings. Furthermore, section 770(1) of the Code lumps together all forms of non-compliance; it does not differentiate between non-compliance in the form of non-attendance in court and non-compliance of another nature, such as committing a further offence while on bail. Section 770(1) must be interpreted in a way that makes sense in both situations.

[27] I am satisfied, in the circumstances of this case, that on November 28, 2016, when Justice of the Peace Doyle had the Clerk of the court endorse the certificate of default on the November 8, 2013 recognizance, the precondition for making that endorsement under s. 770(1) had been satisfied. I interpret the comments of defence counsel at the time he consented to David Bullen’s bail being revoked (referred to in paragraph 9 above) as amounting to an admission to the court that Mr. Bullen had committed breaches of the November 8, 2013 recognizance. Even if I had not interpreted defence counsel’s comments in that fashion, I would have been satisfied that the precondition had been met. At that time, Justice of the Peace Doyle had information to the effect that David Bullen had not complied with several conditions in the recognizance which he had signed that formed the basis of the release order, albeit information that had not been tested in court. That information was provided through the summary of circumstances provided by Crown counsel, with no objection or qualification from defence counsel and with no denial of the breaches by Mr. Bullen; by David Bullen’s consenting to the cancellation of the release order; and by defence counsel taking no objection to the completion of Form 33 at the conclusion of the hearing.

[28] Even if I had found that the endorsement of the certificate of default was premature because there had been no admission of the breaches and the Justice of the Peace did not have adequate proof of non-compliance with the conditions of the recognizance, I would not have quashed the certificate of default. Instead, I would have made use of one of a variety of mechanisms to enable amplification or perfection of the certificate before a forfeiture hearing was conducted.

[29] In Aw, Sanderman, J. allowed the Crown to withdraw a certificate of default that had been endorsed prematurely and without any indication as to the nature of the default and then seek a new certificate of default (a “perfected” certificate) once the accused had been convicted of the breach of recognizance and prior to the forfeiture hearing happening.

[30] In Taylor, Crown counsel conceded that since the offence forming the basis of the breach of condition of recognizance was still before another court for determination, it was premature for a forfeiture hearing to proceed based on a certificate of default earlier endorsed. At Crown counsel’s request, Zelinski J., dismissed the application. However, if I understand his reasons correctly, he went on to adjourn the estreatment proceedings, stating, at para. 72: “[t]here is no reason why, in the applications which have been adjourned, that the materials now before the court cannot be corrected or supplemented. No person has appeared who will be prejudiced thereby”.

[31] In Mignacca, Marrocco J. (as he then was), accepted that transcript evidence of the proceedings before the justice of the peace when the certificate of default was signed can support the sufficiency of the information before the justice of the peace when the certificate was endorsed. As well, transcript evidence of proceedings held subsequent to the endorsement of the certificate for default, during which the accused pled guilty to breach of the conditions of a recognizance, can confirm the finding of breach of condition made by the justice of the peace.

[32] In R. v. Vincent, 2011 ONSC 2172 Pierce, J. reasoned as follows, at paras. 12-13:

The purpose of the estreatment hearing is to give the parties an opportunity to put … all relevant facts before the judge who exercises his or her discretion. While transcripts of the proceedings leading to endorsement of the certificate are not normally tendered, the accused and his sureties are not prejudiced by the Crown doing so in order to amplify the certificate of default.

In this instance, the accused was present when the plea of guilt was made and heard the presiding judge direct the clerk to endorse the certificate the plea and allegation of default are therefore within his knowledge. The accused and the sureties would not be constrained from filing a transcript of the proceedings in another court in order to answer the Crown’s case at the bail estreatment hearing. I conclude therefore, that the Crown may file a transcript of those proceedings in order to amplify the certificate of default.

[33] Finally, in R. v. Bandiera, 2015 ONSC 6292, Goldstein J. agreed with Pierce, J. in Vincent that a transcript of the proceedings when the certificate of default was endorsed can be filed at a forfeiture hearing to amplify the certificate of default.

[34] In all of these cases, the court focused on substance over form and did not let technical or inconsequential issues regarding how or when a form was completed defeat the goals underlying the bail framework set out in the Code, subject to the proviso that the rights and interests of the principal and sureties in the recognizance were still protected and respected. As Dickson J. (as he then was) stated in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at 1307: “We must look for substance and not petty formalities.”

Manner of Completion of Form 33

[35] Defence counsel argues that Form 33 was improperly completed because the Clerk did not identify the specific conditions in the recognizance that had been breached and the reason for the default.

[36] Over time, there has been conflicting jurisprudence as to the level of detail required to be included on Form 33 regarding “the nature of the default”, “the reason for the default, if it is known”, and “whether the ends of justice have been defeated or delayed by reason of the default”. Some courts have decided that scant or no information under one or more of these headings (and particularly relating to the nature of the default) robs the court of jurisdiction to start estreatment proceedings. Other courts have not considered the deficiency as going to the issue of jurisdiction. Some courts have allowed the Crown to amplify the information on the form at the second stage of forfeiture proceedings. Some have considered the absence of information regarding the reason for the default or the impact of the default on the ends of justice to be unfortunate, but not critical. Some have determined that, as long as a reading of the certificate as a whole provides adequate notice to the principal and surety as to the nature of the breach leading to a forfeiture proceeding, that is adequate. In reviewing the jurisprudence, I will focus on deficiencies regarding “the nature of the default”, as that is the key concern in this case.

[37] Numerous cases in Saskatchewan stand for the proposition that an improperly completed certificate of default may result in a lack of jurisdiction to conduct a forfeiture hearing (R. v. Arcand, [1991] S.J. 380 (Q.B.), R. v. Hawkins, [1991] S.J. 381 (Q.B.), Goy, and Koh). In Goy, Goldenberg J. decided that the information required to be provided in the certificate of default must be set out in detail in the certificate at the time of endorsement; the details cannot be provided at a later date, for example, after the accused has entered a guilty plea or been found guilty of specific charges relating to a breach of the recognizance.

[38] This is consistent with the approach taken in the past by Ontario courts in such cases as R. v. Gabrielson (1996), 62 C.C.C. (3d) 571 (H.C.) and Boughner, and in courts in other provinces in such cases as R. v. Thompson, 2002 BCPC 399, Farrell, Koh, and Moulton, where certificates of default were found to be insufficient if they simply identified: “failure to comply”, “new charges”, “failure to appear”, “failure to attend court”, “breached conditions of recognizance”, or “bail revoked” as the nature of the default, without further particulars being provided under that heading or otherwise in the certificate.

[39] Further particulars can be gleaned from other sections in the certificate. For example, in R. v. Brownlee (1997), 50 O.T.C. 380 (Gen. Div.), the court considered both “the nature of the default” and “the reason for the default” collectively and found the certificate sufficient where the nature of the default was said to be a breach of a condition and the reason for the default gave particulars of the condition that had been breached. Similarly, in Taylor, at para. 49, Zelinski, J. identified the seminal determination to be made with respect to all certificates of default as being whether, on a plain reading of the whole of the certificate, it can pass the test of sufficiency. In determining sufficiency, at times the court focused on potential prejudice to the principal and surety (Brownlee and Cobet) and at times the court focused on sufficiency of the certificate from the standpoint of its ability to inform the court (Gabrielson and Boughner).

[40] There is no consensus as to whether and, if so, to what extent, the reason for the default needs to be identified. In Boughner, at para. 11, Wright J. admitted to being baffled by the requirement in Form 33 to state “the reason for the default, if it is known” and queried what the purpose was of such a provision. He wondered if it referred to anything the accused may have indicated to the court regarding the reason for the default at the time the certificate of default was being endorsed. This limited meaning of “the reason for the default” does not capture those circumstances where the accused fails to appear or appears but offers no information regarding the reason for the default. The qualifying phrase, “if it is known”, implies that it is not critical for the validity of the certificate of default that any reason for the default be provided in the certificate. In a number of cases, it has been held, quite reasonably in my view, that failure to set out reasons for the default will not lead to a certificate of default being insufficient (R. v. King, [2003] O.J. No. 342, [2003] O.T.C. 73, 56 W.C.B. (2d) 289 (S.C.J.), at para. 6, Koh, at para. 11, and Stricker, at paras. 35, 101-105, and 161).

[41] It has also been held, quite reasonably, that failure to specify whether the ends of justice have been defeated or delayed by reason of the default does not render the certificate of default insufficient, particularly where which of these two options applies can be determined from the certificate viewed as a whole (Brownlee, at para. 19, Taylor, at para. 41, and Stricker, at paras. 145-160).

[42] In my view, the primary purpose of a certificate of default (Form 33) is to commence proceedings that will ultimately determine whether any amounts set out in the undertaking, release order, or recognizance will be forfeited. No application for forfeiture can be brought until a certificate for default has been endorsed on the document in question. Pursuant to s. 770(2), once the certificate of default has been endorsed on the undertaking, release order, or recognizance, it is sent to the Clerk of the court where the forfeiture proceeding will be heard. Under s. 771(1)(a) of the Code, no further steps are taken until the Clerk of the court or Crown counsel asks a judge to set a date for the forfeiture hearing. Once that date is set, the Clerk of the court, under s. 771(1)(b) must provide appropriate notice to each principal and surety at the address set out in the certificate of default.

[43] It is at this stage that the secondary purposes of the certificate of default come into play, namely, to provide the principals and the sureties with adequate notice of the alleged default under the undertaking, release order, or recognizance so that the principals and sureties can show cause why the amounts in those documents should not be forfeited. Before a forfeiture order can be made under s. 771(2), the parties must be given an opportunity to be heard. At the conclusion of the hearing, the judge has the discretion to grant or refuse the application for forfeiture and may make any order with respect to the forfeiture of the amount that the judge considers proper. Obviously, one option the judge has at the time of the forfeiture hearing is to adjourn the hearing in circumstances where the principals and/or sureties could not adequately prepare for the hearing due to a dearth of information contained in the certificate of default served on them. The judge can order that particulars of the alleged default and further proof of the default be provided prior to hearing further submissions from the parties and ruling on forfeiture. This was done in Taylor.

[44] It is at this stage that the third purpose of the certificate of default, namely, to provide evidence of the default to which the certificate relates, comes into play (s. 770(3)). If no further evidence relating to the alleged default is tendered at the forfeiture hearing, the court may rely on the certificate as establishing the default – but is not obliged to do so. It is at this stage that any lack of particularity in the certificate of default can truly prejudice a principal or surety in a substantive fashion. The obligation is on Crown counsel to prove that the person who is subject to an undertaking, release order, or recognizance has not complied with one or more of its conditions. It is hard to imagine that any court would rely on a bald assertion in a certificate of default to provide that proof. Surely any court would look for meaningful particulars in the certificate of default as proof of the default in circumstances where a guilty plea, a finding of guilt, or other evidence is unavailable as proof. In the absence of such particulars, the forfeiture application would be denied. This was done in Dallaire and Thompson.

[45] In some bail estreatment cases, language has been used to the effect that a properly completed certificate of default is a precondition to a court having jurisdiction to consider a forfeiture application. Put slightly differently, an “insufficient” certificate of default is a nullity that denies the court jurisdiction to consider a forfeiture application (see, for example, Gabrielson, Goy, Boughner, and Moulton). As explained above, I disagree with the conclusion that a court at the time of a forfeiture hearing can do nothing other than quash a certificate of default and terminate the estreatment proceedings if the certificate of default is lacking in particularity.

[46] In my view, the only precondition to a court having jurisdiction to conduct a forfeiture hearing is that a certificate of default be endorsed on the undertaking, release order, or recognizance in question. Any lack of particularity in how that certificate of default is completed does not deny jurisdiction to the court (see Stricker, at para. 99). The lack of particularity may result in the forfeiture application being denied outright or the estreatment proceedings discontinued (Dallaire, Thompson). It might lead to an adjournment with the opportunity of further and more particularized notice being given to the affected parties (Taylor). Or it might lead to further evidence being accepted to amplify the information provided in the certificate of default, as was done Vincent, Mignacca, and Bandiera.

[47] In Bandiera, Goldstein J. made several pertinent observations:

• Problems with filling out Form 33 stem as much from the ambiguous nature of s. 770(1) and Form 33, as they do from any other source (para. 14).
• To find that the court has lost jurisdiction to proceed with a forfeiture hearing because of a clerical mistake by a clerk in a very busy court would be a triumph of form over substance (para. 17).
• The criminal law does not require perfection in many other, more consequential documents, such as the drafting of informations to obtain search warrants, the amendments of information and indictments, and the correction of errors to a jury’s verdict (para. 18).

[48] The conclusion of Goldstein J. at para. 25 is one that resonates with me:

In this case, although it is a question of jurisdiction, it is also worth pointing out that the certificate of default is not a document that must be particularized like an indictment. Nobody’s liberty is at stake. No funds have yet been ordered forfeited. The requirements for filling out the document do not exactly leap out from the page with perfect clarity. The purpose of the certificate is to alert the surety that there has been a default, and that there will be a hearing to determine if forfeiture should be ordered. The certificate can be amplified at the forfeiture hearing. Indeed, amplification is necessary. No court would order forfeiture without more evidence than a simple note on a certificate, even if it were filled out in detail.

I would qualify the last sentence by suggesting that, in the absence of other evidence, a forfeiture order based on failure to attend with specifics of the date and the hearing in question being indicated on the certificate of default may suffice to justify a forfeiture order, as the judge or clerk completing the certificate of default would have personal knowledge of the breach.

Conclusion Regarding Certificate of Default (Form 33)

[49] I conclude that the certificate of default was not endorsed prematurely, in that there was an admission before Justice of the Peace Doyle prior to the certificate being endorsed that David Bullen had breached one or more conditions in the recognizance. Even if the statement by defence counsel was not intended to be an admission, the Justice of the Peace had sufficient information before her to conclude on a balance of probabilities that Mr. Bullen had breached a condition of the recognizance – that information being in the form of the detailed information provided by Crown counsel at the bail revocation hearing, Mr. Bullen’s consent to bail revocation, the absence of any objection to the circumstances as outlined by Crown counsel, and the absence of any objection on the part of defence counsel to a certificate of default being endorsed at that time. Even had I found that the endorsement of the certificate of default on November 28, 2016 was premature, I would not have quashed the certificate but, instead, would have allowed it to be amplified by the transcript from the hearing on December 18, 2018 at which time David Bullen pled guilty to several counts of breach of the recognizance of November 8, 2013.

[50] The certificate of default was not completed by the Clerk of the court on November 28, 2016 with the required level of particularity. It is not enough for a clerk to simply indicate that there has been a breach, the reason for which is “breach of terms of recognizance.” That does not provide sufficient information to the accused, the sureties, or the court hearing the forfeiture application as to the potential issues to prepare for and to address at the forfeiture hearing. Had that been the only information available to Mr. Bullen or his sureties, a forfeiture hearing could not proceed. However, that is not the case here. Mr. Bullen was in attendance on November 28, 2016 and heard oral submissions about the nature of the breaches being alleged by the Crown. I have no information as to whether Scott Bullen, or any of the other sureties, were in attendance on that date. That is not critical because, in the interim, Scott Bullen, and presumably the other sureties, have been provided with copies of the transcript from November 28, 2016, the transcript from December 18, 2018 when David Bullen pled guilty to several breaches of the recognizance, and the Statement of Agreed Facts filed with the court on December 18, 2018. There can be no doubt that Scott Bullen has full information on the nature of the breaches that have resulted in these forfeiture proceedings being commenced and that, consequently, he has not been prejudiced through any lack of detail in the certificate of default itself.

[51] In summary, I reject the request of Scott Bullen to quash or nullify the certificate of default based on when and how it was completed.

Issue Two: The staying of substantive charges against David Bullen

[52] Scott Bullen argues that the staying of charges against David Bullen by the Crown following his death should result in the forfeiture proceedings against the sureties also being stayed. I reject this argument.

[53] Section 579(1) of the Code provides that, at any time after proceedings in relation to an accused are commenced and before judgment, Crown counsel can direct the Clerk of the court to indicate on the record that the proceedings are stayed. Once this is done, any undertaking or release order relating to the proceedings is vacated.

[54] Following the death of David Bullen, on January 11, 2019, Crown counsel directed that all charges against him be stayed. The stay of those charges resulted in the recognizance provided by David Bullen on November 8, 2013 being vacated.

[55] In Purves v. Canada (Attorney General), [1990] B.C.J. No. 622, 54 C.C.C. (3d) 355 (C.A.), the British Columbia Court of Appeal decided that, when a stay has been entered, s. 579(1) of the Code has the effect of making a recognizance cease to bind the accused or sureties after that entry but the entry does not preclude forfeiture proceedings against the accused or sureties from taking place in respect of a breach of the recognizance made prior to the entry of the stay. The reasoning in this case is persuasive, and I adopt it.

Issue Three: The death of David Bullen

[56] David Bullen died on December 29, 2018, after the certificate of default had been endorsed and after Mr. Bullen had pled guilty to all counts on the Project Wildwood indictment (including 11 counts of breach of recognizance) but prior to the Crown’s forfeiture application being heard. Scott Bullen takes the position that the death of David Bullen put an end to the forfeiture proceedings not only against David Bullen, but also against the sureties. I reject this argument.

[57] The recognizance entered into by David Bullen on November 8, 2013 was in Form 32 under the Code. The opening lines of that document are: “Be it remembered that on this day the persons named in the following schedule personally came before me and severally acknowledged themselves to owe to Her Majesty the Queen the several amounts set opposite their respective names, … to be made and levied of their several goods and chattels, lands and tenements, respectively, to the use of Her Majesty the Queen, if the said accused fails in any of the conditions hereunder written.”

[58] The recognizance is an acknowledgement of individual debts owed to the Crown by those named in the recognizance upon the happening of a certain event; namely, the accused’s breaching a condition of the recognizance. In this case, as outlined in the Statement of Agreed Facts filed on December 18, 2018 when David Bullen pled guilty to all counts on the Project Wildwood indictment, the breaches of conditions occurred in the fall of 2016. Conclusive proof of those breaches was provided by way of that Statement of Agreed Facts and resulted in a finding of guilt against Mr. Bullen on December 18, 2018 in regard to 11 breaches of conditions in the recognizance. Nothing further was required to make each surety listed in the recognizance a debtor of the Crown. The subsequent death of David Bullen is irrelevant to the creation of those debts.

[59] The extent to which the court will enforce the debt is determined at a forfeiture hearing under s. 771(2) of the Code. The recognizance creates separate obligations on the part of the accused and each surety in the amounts stipulated in the recognizance. The Crown can choose against whom, amongst the list of debtors, it wishes to seek forfeiture. In this case, the Crown has already indicated that it will not be seeking forfeiture of the sum pledged by Rosemarie Bowick because she is currently in poor health.

[60] At the forfeiture hearing under s. 771(2), the judge, after giving all parties the opportunity to be heard, can exercise his or her discretion to grant or refuse the application for forfeiture regarding any of the individuals listed in the recognizance and make any order with respect to the forfeiture of an amount that the judge considers proper. The fact that the individuals listed in the recognizance can be dealt with differently by the Crown, in seeking forfeiture, and by the court, in granting or refusing forfeiture, reinforces that it is irrelevant whether the accused has died after the debts have crystallized but before the forfeiture hearing has been held.

[61] In that David Bullen’s presence at or involvement in forfeiture proceedings against the sureties is not required, the fact that he cannot be served with notice of the forfeiture proceedings is no impediment to the proceedings continuing.

[62] The case of R. v. Mackie, [1977] M.J. No. 228, 38 C.C.C. (2d) 385 (Q.B.) dealt with the situation where the accused did not acknowledge himself to owe any money to the Crown upon his breach of his recognizance, but his sureties did. The court, at paras. 9-11, found that the sureties were bound by the recognizance even though the accused was not. The case speaks to the independent nature of the obligations acknowledged by each accused and each surety under a recognizance, and supports the conclusion that the death of David Bullen does not put a stop to forfeiture proceedings against the sureties.

Conclusion

[63] A forfeiture hearing shall take place at a date and time to be arranged through Trial Coordination. The Crown shall ensure that, at least two weeks prior to the forfeiture hearing, any sureties against whom the Crown will be seeking forfeiture will be provided with a copy of the following documents, if they do not already have them in their possession: transcripts from November 8, 2013, November 28, 2016, and December 18, 2018; a copy of the indictments relating to the Adelaide and Wildwood projects; a copy of the recognizance pursuant to which the individuals became sureties and on which the certificate of default was endorsed; and a copy of the Statement of Agreed Facts that formed the basis of David Bullen’s guilty pleas on December 18, 2018.

Aitken J.

Released: March 4, 2021