Court File and Parties

COURT FILE NO.: 4755/20

DATE: 2022-01-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Matthew MacInnes

BEFORE: Mr Justice Ramsay

COUNSEL: Richard Monette for the Crown; Andrew Burton for accused; Sara Ramalho for sureties

HEARD: January 27, 2022 at Welland by videoconference

Endorsement

[1] The Crown moves under s.771 of the Criminal Code for forfeiture of amounts pledged in a release order. The certificate of default was duly completed by the justice, who certified that on November 13, 2019 the accused failed to appear in the Ontario Court and that the ends of justice had not been met.

[2] The clerk of the court notified the accused and the sureties in accordance with s.771(1) of the Code. After a number of appearances, all parties appeared before Gambacorta J. on November 8, 2021, when the matter was set for hearing today.

[3] The accused was charged with 35 counts, most of which involved possession of firearms. The Crown elected to proceed by indictment. The accused was released on April 5, 2019 on a recognizance without deposit but with the following promises to pay:

Accused $10,000

Donald MacInnes $10,000

Linda MacInnes $10,000

Sharon Schutten $ 1,000

Betty Bouwman $ 1,000.

[4] By the time he failed to appear he had still not elected his mode of trial or set a date for trial or preliminary inquiry. The accused and his main sureties wrote down the wrong return date. The accused missed court. The police came to his house and told his mother to have him surrender the next day. He did that as asked on November 17, 2019. Four days had passed since his failure to appear. He was released by the police on a charge of failing to appear and he returned to court to appear on the gun charges. The original bond remains in effect. The accused is now in custody on a charge of murder. The 35 original charges and the fail to appear have not been tried.

[5] Section 771(3) of the Code gives the judge the discretion to make “any order with respect to the forfeiture of the amount that the judge considers proper.”

[6] There is no appeal from an order for forfeiture and since the merger of the courts in 1990 there no scope for review on certiorari, apart from the relatively rare cases in which a provincially appointed judge decides estreatment under s.134 of the Youth Criminal Justice Act. We have guidance from the Court of Appeal, however, in Canada (Minister of Justice) v. Mirza, 2009 ONCA 732, in which that court had original jurisdiction over estreatment. The court affirmed the importance of maintaining what the English authorities call “the pull of bail” but declined to endorse the proposition that in the case of absconding, forfeiture of the full amount should be the rule absent exceptional circumstances. At the same time, the court held that good-faith efforts by sureties and due diligence to ensure that subjects attend court constitute relevant factors on forfeiture applications but do not automatically vitiate against forfeiture.

[7] Factors that are generally taken into account include the nature of the breach, the conduct of the sureties before the breach, the conduct of the accused after the breach, the nature and seriousness of the charges and the amount of the bond.

[8] The obligation to appear in court is fundamental to any release order. Per Boilard J. in R. c. Sandhu (1984), 1984 CanLII 5681 (QC CS), 38 C.R. (3d) 56 (Que. S.C.), paragraph 37:

La caution doit surveiller l'accusé et prendre les mesures nécessaires pour qu'il se présente à la cour chaque fois qu'il doit le faire.

[9] I do not agree with the submission that the sureties were duly diligent. They acted properly in remedying the failure to appear, but they did not act with due diligence to prevent it. Nor did the accused, on whom the sureties relied.

[10] In the present case I think it relevant that the accused was charged with very serious offences. The promise to pay has to be taken seriously. Some degree of forfeiture is necessary to reinforce that principle. On the other hand, the circumstances do not call for anything like forfeiture of the full amount.

[11] With respect to the minor sureties I see no point in forfeiting a fraction of $1,000. The accused, Donald MacInnes and Linda MacInnes pledged $10,000 each. I order forfeiture of $1,000 from each of them. I order forfeiture of the same amount from the accused.

J.A. Ramsay J.

Date: 2022-01-27