COURT FILE NO.: 20-A11234

DATE: 20210917

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Applicant,

AND

Kory Robillard-Delahunt, Accused

BEFORE: Aitken J.

COUNSEL: Malcolm Savage, for the Crown

Graham Bebbington, for the Accused

HEARD: September 16, 2020

ENDORSEMENT

Nature of Proceedings

[1] The Crown has brought forfeiture proceedings against the Accused as a result of his non-attendance in court, as required, on February 17, 2021. The Accused had been released on bail on November 24, 2020 pursuant to a release order that stipulated that he must return to court on February 17, 2021. One condition of the release order was that the Accused promised to pay $2,500 if he failed to comply with a condition of his release. The release order specifically warned the Accused that, if he did not comply with the release order and, more specifically, did not attend further court appearances as required, the money that he pledged as security could be forfeited.

Jurisdictional Issue

[2] At the commencement of the forfeiture hearing, Defence counsel argued that the court did not have jurisdiction to hear the forfeiture proceeding because the certificate of default (form 33) was defective in three ways:

• It did not specify whether the ends of justice had been defeated or delayed;

• It did not state the reason for the default; and

• It was not dated.

[3] In R. v. Bullen, 2021 ONSC 1517, at paras. 35-48, I reviewed the law regarding a form 33 lacking in particularity and whether the lack of particularity impacted on the court’s jurisdiction to hear a forfeiture application. My conclusion at para. 46 was as follows:

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.

[4] For the reasons provided in Bullen, I reject the Accused’s challenge of the jurisdiction of the court to proceed with the forfeiture proceedings.

Forfeiture Application

[5] As indicated on the certificate of default, the breach of condition relied on by the Crown in seeking forfeiture of the pledged sum was that the Accused did not attend court when required to do so. Although the certificate of default does not indicate the day on which the Accused failed to appear, this fact was never in doubt. The Accused’s counsel, Mr. Bebbington, was present on February 17, 2021 when the Accused failed to appear. A bench warrant was issued at the time. The fact of the Accused’s non-attendance was noted on the Information. The Clerk of the Court subsequently completed a certificate to the effect that the Accused failed to appear on February 17, 2021, as required by the court.

[6] The certificate of default should have included the date on which it was signed. This was a simple oversight on the part of the judge. Again, that is of little consequence when the Accused’s counsel was present and knew that the certificate of default was being signed.

[7] Although it was not stated on the certificate of default whether the ends of justice were defeated or delayed, I consider it obvious that, at the very least, the ends of justice were delayed. Although the purpose of the attendance on February 17, 2021 was a simple status check, those appearances serve the goal of keeping a case on track and ensuring that everything that needs to be done to move the case forward is being done in a timely fashion. I was advised that, had the Accused appeared on that date, a pre-sentence report would have been ordered.

[8] Neither the judge, nor the clerk of the court, could have endorsed on the form 33 the reason for the default as the Accused was not in court to explain the reason. Anything the court officer could have said as to the reason for the default would have been mere speculation and of no useful purpose.

[9] What is of concern to me is that the estreatment documents were not provided in their entirety to Defence counsel until September 14, 2021 – despite the hearing being scheduled for September 16, 2021 and despite Defence counsel having requested full disclosure on July 27, 2021 and September 10, 2021. I will take this late disclosure into account when considering whether forfeiture should be ordered and, if so, in what amount.

[10] The Accused is 29 years old. He has been in jail for approximately 11 of the past 12 years – his terms of incarceration having commenced when he was a youth. According to Defence counsel, he has no realistic opportunity of paying the $2,500 which he pledged at the time of his release.

[11] The Accused was released on November 24, 2020 after having pled guilty to a number of offences and pending sentencing. At the time, he hoped that he would become employed. By the time the Accused was arrested pursuant to the bench warrant issued on February 17, 2021, he was facing additional charges. Defence counsel is now working on a comprehensive resolution of all outstanding offences.

[12] Although I appreciate that, when the Accused was released on February 17, 2021, the court was looking for a significant amount to be pledged by the Accused to justify his being released following a finding of guilt, making an order at this time for forfeiture of the entire $2,500 pledged seems like an exercise in futility. Instead, I will order forfeiture of $500 – a sum that the Accused should have some possibility of paying over time once he is released.

Disposition

[13] In my view, it would be fit and proper and in keeping with the goal of upholding the seriousness of responsibilities under recognizances of bail to afford the Accused some relief but not complete relief from his pledge of $2,500. An order will go for forfeiture of the sum of $500.

Aitken J.

Date: September 17, 2021

Copy and Paste Citation/Style of Cause DELETE EXTRA LINE SPACE IF APPLICABLE

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Party, Plaintiff(s)/Applicant(s)

AND

Party, Defendant(s)/ Respondent(s)

BEFORE: Judge

COUNSEL: Counsel, for the Plaintiff(s)/Applicant(s)

Counsel, for the Defendant(s)/ Respondent(s)

ENDORSEMENT

Judge

Released: [Click and Type Date]