COURT FILE NO.: 13-30424
DATE: 20210528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
DAVID BULLEN (Estate of), ERIKA BULLEN, SCOTT BULLEN, MICHAEL LALANDE, ROSEMARIE BOWICK
Respondents
J. Legrand, for the Federal Crown
D. Condo, for David Bullen (Estate of) and Erika Bullen
M. Johnston, for Scott Bullen
P. Giancaterino, for Michael Lalande
HEARD: May 28, 2021
REASONS ON FORFEITURE APPLICATION
Aitken J.
Nature of Proceedings
[1] The Crown sought forfeiture of David Bullen’s cash bail deposit of $60,000 as well as various sums pledged by four sureties – all in regard to a recognizance signed by David Bullen on November 8, 2013.
[2] Prior to the hearing of the application, resolutions were reached in regard to all of the sureties. Consequently, an order of forfeiture is granted in the following amounts respecting those sureties:
• Erika Bullen: $30,000
• Scott Bullen: $25,000
• Michael Lalande: $10,000
• Rosemary Bowick: $ nil
[3] The only issue left for me to decide is whether the cash deposit David Bullen made of $60,000 should be forfeited in its entirety or whether some relief against forfeiture should be granted. Crown counsel takes the position that the full amount should be forfeited. Diane Condo, on behalf of the Estate of David Bullen and his widow, Erika Bullen, asks that only $30,000 be forfeited so that the remaining $30,000 can be returned to Erika Bullen to assist her in supporting her two children.
Background Context
[4] 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 19 conditions and four sureties. David Bullen made a cash deposit of $60,000. His wife, Erika Bullen, pledged $30,000. His brother, Scott Bullen, pledged $50,000. His brother-in-law, Michael Lalande, pledged $50,000. Finally, his mother, Rosemarie Bowick, pledged $50,000.
[5] David Bullen was 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 On November 28, 2016, David Bullen consented to his continuing detention and his bail was revoked.
[6] 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.
[7] 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.
[8] 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.
[9] On December 29, 2018, David Bullen died in prison.
[10] After these forfeiture proceedings were commenced, Crown counsel learned that Rosemarie Bowick was gravely ill. The Crown discontinued forfeiture proceedings against Ms. Bowick. Unfortunately, Ms. Bowick has subsequently died.
Legal Framework for Forfeiture Proceedings
[11] Under s. 771(2) of the Criminal Code, R.S.C. 1985, c. C-46, after giving the parties an opportunity to be heard, the judge at a forfeiture hearing “may … in [her] discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that [she] considers proper”. The onus is on the accused or the surety to show why the recognizance should not be forfeited: s. 771(1)(b) of the Code and Canada (Minister of Justice) v. Mirza, 2009 ONCA 732, 255 O.A.C. 109, at para. 27). At least in regard to a surety’s obligations, there is no rigid rule of total forfeiture absent exceptional circumstances. Rather, the court has a broad discretion to do what is appropriate after taking into account a wide range of factors: see Mirza, at paras. 44 and 51.
[12] There is very little jurisprudence dealing with the forfeiture of cash deposits made by accused individuals as part of their bail plan. Usually such cases deal with the situation where the accused has absconded from the jurisdiction and not attended scheduled court appearances, and the forfeiture of the full amount is normally granted. That is not the case here.
[13] Ms. Condo referred me to R. v. Li and Ma, 2010 ONSC 1069 where the court was asked to give the accused some relief from forfeiture of a $100,000 pledge (without deposit). Gordon J. considered the seriousness of the breach of recognizance, the accused’s conduct during the proceedings (aside from the breach), and the financial situation of the accused before ordering that only $10,000 of the $100,000 pledge be forfeited.
[14] The facts in that case are easily distinguishable from the facts in this case. The breach of recognizance was a minor one. The drug charges the accused was facing resulted in a sentence of only one year. By the time of the forfeiture hearing, the accused had been released on parole. The accused was not the principal offender in the drug activities. The accused had no prior criminal record. The accused had complied with the terms of an earlier release order and, aside from one minor breach of curfew, had compled with the terms of the second release order. Finally, the accused had had no chance of paying $100,000 – either when that amount was originally pledged or at the time of the forfeiture proceedings. He was a man of modest means.
Analysis
[15] When David Bullen entered the recognizance on November 8, 2013, he was facing very serious charges for heading up a cocaine trafficking ring in Eastern Ontario. As a result of the seriousness of those charges, the recognizance contained 19 conditions and required four sureties to pledge very sizable amounts in addition to the $60,000 cash deposit required of Mr. Bullen.
[16] Clearly, Mr. Bullen ignored the terms of the recognizance. He continued to carry on his criminal activities, including drug trafficking and firearms offences. Ultimately, he was convicted of the drug trafficking offences that had resulted in his arrest in October 2013, and he subsequently pled guilty to the drug trafficking and firearms offences that had resulted in his re-arrest in October 2016. At the same time, he pled guilty to 11 breaches of the November 8, 2013 recognizance, some of which were that he failed:
• To keep the peace and be of good behaviour;
• To not possess cellular devices;
• To abstain from possession or trafficking of a prohibited substance (both cocaine and marijuana) and not to be found or associate with anyone known by him to be doing so;
• To not associate or communicate with Eric Corbeil;
• To not associate or communicate with anyone whom he knew had a criminal record or outstanding criminal charges;
• To not be away from his place of residence at any time except with two sureties;
• To not possess firearms; and
• To not have more than $500 in his possession.
[17] In essence, aside from Mr. Bullen not absconding, he breached all of the other significant terms of his recognizance that had been put into place so that he would not continue the very serious offence of trafficking in cocaine. The level of Mr. Bullen’s moral culpability was such that, in regard to the Project Adelaide offences, he was sentenced to 10 years in prison. At the time of his death, he was still awaiting sentence on the 25 Project Wildwood offences. There is no reason to think that his sentence for those repeat offences and breaches of recognizance would have been less than what he received for the Project Adelaide offences.
[18] Mr. Bullen’s total disregard for the law and his obligations under his recognizance is a strong factor militating against any release from forfeiture.
[19] When he entered the recognizance, Mr. Bullen had sufficient funds to make a cash deposit of $60,000. These funds did not mean much to him at the time in that he was prepared to totally ignore the terms of the recognizance, continue with his criminal activities, and put those funds in risk of being forfeited.
[20] Ms. Condo, on behalf of Mr. Bullen’s estate, asks that $30,000 be returned to the estate to benefit Mr. Bullen’s two children who, by my calculation, would be about 15 years of age at this time. For the court to seriously consider such a request, evidence should have been tendered about the nature of Mr. Bullen’s estate, whether he had a will and the terms of any such will, how Erika Bullen and the two Bullen children would benefit if there was an intestacy, Ms. Bullen’s current financial circumstances, and any other financial assets or income available for the support of the children. None of that was tendered at the hearing. Instead, in somewhat vague terms, Ms. Condo advised the court of her understanding of Ms. Bullen’s current financial status. That approach was inadequate.
Conclusion
[21] I have not been persuaded that, in the circumstances of this case, it would be fit and proper and in keeping with the goal of upholding the seriousness of responsibilities under recognizances of bail to give any relief from forfeiture of the $60,000 cash deposit made by David Bullen in November 2013.
[22] Consequently, in addition to the forfeiture orders made above, there will be an order of forfeiture of the $60,000 cash deposit that was made by David Bullen.
Aitken J.
Released: May 28, 2021
COURT FILE NO.: 13-30424
DATE: 20210528
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
DAVID BULLEN, ERIKA BULLEN, SCOTT BULLEN, MICHAEL LALANDE, ROSEMARIE BULLEN
Respondents
REASONS ON FORFEITURE APPLICATION
Aitken J.
Released: May 28, 2021