COURT FILE NO.: CR-21-10000146-0000
DATE: 20220606
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
ABDUL WASI HADI
Respondent
A. Kwan, for the applicant
R. Chartier, for the respondent
HEARD: May 19, 2022
REASONS FOR DECISION
SCHRECK J.:
[1] Abdul Wasi Hadi did not attend the last day of his judge-alone trial on robbery and other charges, which was the day on which judgment was to be delivered. This is unfortunate, as Mr. Hadi was acquitted on all charges.[^1]
[2] The reason Mr. Hadi was not in court was that he was in custody in the United States, having been arrested on drug trafficking and firearms charges. The Crown wishes to commence proceedings to have Mr. Hadi and his surety forfeit the amounts pledged in his recognizance of bail and applies to have this court endorse a certificate of default pursuant to s. 770(1) of the Criminal Code on the basis that Mr. Hadi has failed to abide by his bail conditions. The Crown accepts that Mr. Hadi’s non-attendance has been explained, but submits that it has been established that he has failed to abide by his bail conditions by failing to reside at the address specified in the recognizance, breaching a curfew and committing the offences for which he was arrested in the United States. Counsel for Mr. Hadi resists the Crown’s request. He submits that no breach has been established.
[3] For the reasons that follow, I am not satisfied that there is sufficient evidence to establish a breach and therefore cannot endorse the certificate of default.
I. FACTS
A. The Recognizance
[4] Mr. Hadi was arrested in July 2019 and charged with numerous offences.[^2] On July 11, 2019, he was released on a recognizance in the amount of $25,000 with one surety, a friend of his. One of the conditions of the recognizance was that he reside with his surety at an address in Newmarket and that he remain in the residence at all times unless “in the direct presence of [his] surety,” “for the purposes of employment with [his] surety” or in the event of a medical emergency.
[5] On July 27, 2020, Mr. Hadi’s bail was varied such that he was no longer required to remain in his residence but was subject to a curfew between 9:00 p.m. and 6:00 a.m. The same exceptions applied and Mr. Hadi was permitted to be away from his residence if in the company of a surety or for the purposes of employment with his surety.
[6] Mr. Hadi was tried together with three other individuals. The trial began on January 18, 2022 and continued until February 11, 2020, at which time the matter was adjourned to May 13, 2022 for judgment. On that date, Mr. Hadi was found not guilty on both counts he was charged with.
B. The Arrest in the United States
[7] According to documents obtained by the Crown from the United States Department of Homeland Security, Mr. Hadi was arrested in Brooklyn, New York on February 17, 2022 on an outstanding warrant from Indiana. The arrest apparently occurred at 6:00 a.m. Mr. Hadi was charged with “possession with intent to distribute controlled substances” and “carrying a firearm during and in relation to a drug trafficking crime” and held in custody pending extradition to Indiana.
[8] The Department of Homeland Security document does not contain a synopsis of the allegations giving rise to the charges, nor does it specify the date or dates on which Mr. Hadi was alleged to have committed the offences. In a section entitled “Case Metadata”, the “Case Title” is identified as being “Operation Karate Kid” and states that the case was “opened” on March 21, 2021.
II. ANALYSIS
A. Applicable Legal Principles
(i) [Section 770](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec770_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[9] Section 770 of the Criminal Code provides 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.
[10] The section requires a judge to endorse a certificate of default if the accused failed to abide by the condition of his of her bail. The section does not set out how such a breach is to be established: Hon. G. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters, 2022), §13.2. Nor does the section identify any standard of proof, other than to require that the judge has “knowledge of the facts,” an unusual term that does not appear elsewhere in the Criminal Code. This is likely due to the fact that earlier versions of the section only applied to situations where the accused failed to appear in court as required, which was something about which the presiding judge would have had direct personal knowledge: R. v. Strickland, 2013 ABPC 146, at paras. 39-65; R. v. Bullen, 2021 ONSC 1517, at paras. 13-14.
[11] The section clearly states that once the court has knowledge of the default, it “shall” complete the certificate of default. There is no discretion in this regard. However, the court does have discretion with respect to whether a finding of a breach ought to be made: Purves v. Canada (Attorney General) (1990), 1990 CanLII 903 (BC CA), 54 C.C.C. (3d) 355 (B.C.C.A.), at p. 366; (B.C.C.A.); R. v. Parsons (1998), 1997 CanLII 10870 (NL CA), 124 C.C.C. (3d) 92 (Nfld. C.A.), at p.106; R. v. Hassan, 2016 ONSC 1285, at para. 26; Trotter, §13.2. The court also has a discretion with respect to the timing of the endorsement of the certificate of default and where an accused has been charged with failing to comply with a recognizance, it will often make sense to await the outcome of the trial on that charge before determining whether the certificate should be endorsed: R. v. Dallaire (2001), 2001 CanLII 24106 (ON CA), 40 C.R. (5thO 385 (Ont. C.A.), at para. 22; R. v. Prévost, [2005] O.J. No. 3919 (S.C.J.), at para. 32.
[12] An endorsement of the certificate of default has several consequences. It initiates forfeiture proceedings pursuant to s. 771 of the Criminal Code. At that hearing, the certificate is prima facie evidence of the breach unless the accused or the sureties lead evidence to the contrary. Subsection (4) provides that if the recognizance involved a cash deposit, that money is no longer available to be used on any subsequent bail until the forfeiture proceedings are concluded: R. v. Moulton, 2020 BCPC 38, at paras. 31-33.
(ii) The Standard of Proof
[13] While there is some conflict in the caselaw, the preponderance of authority accepts that an accused need not be convicted of failing to comply with a recognizance before a certificate of default can be completed: R. v. Bullen, 2021 ONSC 1517, at paras. 24-26; R. v. Mignacca, [2008] O.J. No. 2880 (S.C.J.), at para. 22; R. v. Laquette, 2021 MBQB 103, at para. 13; contra: R. v. Goy (1994), 1994 CanLII 5045 (SK QB), 119 Sask. R. 57 (Q.B.), at para. 11; R. v. Boughner, [1999] O.J. No. 3769 (S.C.J.), at para. 13.
[14] Part of the reason why proof of a conviction is not required is that s. 770 does not require that the breach be proven beyond a reasonable doubt but, rather, on a balance of probabilities: Bullen, at para. 25; Parsons, at para. 21; Laquette, at para. 13. This is consistent with the standard of proof that applies generally in proceedings relating to bail: Trotter, §5.4.
(iii) Evidence to Establish a Breach
[15] Unless the breach is admitted, it must be established through evidence: Bullen, at paras. 21-22; Stricker, at para. 129; Moulton, at paras. 37-38. However, in my view the strict application of the rules of evidence appropriate in a trial do not apply. As in a bail hearing, the court may act on evidence that is “credible and trustworthy”: Trotter, §5.5(d). Such evidence is sufficient to justify revoking an accused’s bail pursuant to s. 524(3) of the Criminal Code, and it would make little sense to require a higher standard for evidence required to justify endorsement of the certificate pursuant to s. 770 than is required to justify depriving someone of his or her liberty.
B. Application to This Case
(i) The Alleged Breaches
[16] The Crown acknowledges that Mr. Hadi’s non-attendance in court is explained by the fact that he was in custody in New York and therefore unable to attend. However, the Crown submits that it has been established that Mr. Hadi violated his bail by (1) being in New York when he was required to reside in Newmarket; (2) violating his curfew; and (3) committing the offences with which he was charged in Indiana.
(ii) Failure to Reside at the Specified Address
[17] I do not agree that the fact that Mr. Hadi took a trip to New York is evidence that he failed to “reside” at the address identified in the recognizance. The concept of residence does not preclude a temporary absence: R. v. Gravino, [1991] O.J. No. 2927 (C.A.), at para. 1; R. v. Wake, 2011 ONCJ 910, at paras. 86-91.
(iii) Failure to Abide by a Curfew
[18] Given that Mr. Hadi was arrested in Brooklyn at 6:00 a.m., it is clear that he was not in his residence between 9:00 p.m. and 6:00 a.m. as required by his recognizance. However, the recognizance permitted Mr. Hadi to be out of his residence provided he was in the company of his surety or for the purposes of employment with his surety. I take the latter exception to mean that Mr. Hadi could leave his residence in order to do work while employed by his surety, rather than work done in the presence of his surety. Otherwise, the second exception would be redundant.
[19] I have no evidence before me as to the nature of Mr. Hadi’s employment, nor is there any evidence that his surety was not present at the time of his arrest. While I accept that the rules of evidence are relaxed in proceedings such as this, there must be at least some basis to conclude that a breach occurred. In my view, it is not open to me to simply assume that one of the exceptions that permitted Mr. Hadi to be away from his residence did not apply.
(iv) Commission of Offences
[20] Assuming that the Department of Homeland Security document constitutes credible and trustworthy evidence, it establishes only that Mr. Hadi was arrested for drug trafficking and firearms offences. There is no indication when the offences are alleged to have been committed, although it appears that the investigation into the offences began in March 2021.
[21] The Homeland Security documents contains no investigative report, synopsis of the allegations, police notes or any other information outlining what Mr. Hadi is alleged to have done. The fact that he was arrested does not, in my view, constitute evidence that he committed the offences. At its highest, it establishes that there are reasonable and probable grounds to believe that he did so: Moulton, at paras. 37-38; Stricker, at para. 130.
C. Conclusion
[22] For the foregoing reasons, I am not satisfied that I have “knowledge of the facts” of any failure by Mr. Hadi to comply with his recognizance and I therefore cannot endorse a certificate of default.
[23] I come to this conclusion without prejudice to the Crown to renew its application should it come into possession of further evidence. Such further application need not be made before me as s. 770(1) provides that an endorsement of a certificate of default can be made by any “court, provincial court judge or justice.”
III. DISPOSITION
[24] The application is dismissed.
Justice P.A. Schreck
Released: June 6, 2022
[^1]: R. v. Hadi, 2022 ONSC 2903.
[^2]: Mr. Hadi was initially charged with 15 counts, including drug trafficking, criminal organization, firearms and robbery offences. He was ultimately tried on one count of robbery and one count of conspiracy to commit robbery.