Court File and Parties

Court File No.: CR-24-40000046-00BE Date: 2024-10-02 Ontario Superior Court of Justice

Between: His Majesty The King, Respondent And: Joaquim Batista, Applicant

Before: Schreck J.

Counsel: E. Brosh, for the Respondent J. Kopman, for the Applicant

Heard: September 20, 2024

Reasons for Decision

SCHRECK J.:

[1] There is no right of appeal from a decision ordering the forfeiture of monies pledged on a recognizance of bail, even though such decisions can result in significant financial consequences or even imprisonment for the person against whom the order is made. What legal recourse, if any, is available to such an individual is the subject of this application.

[2] Joaquim Batista acted as a surety for a person who breached his bail conditions. He was notified that the Crown intended to apply to have the $5000 he pledged forfeited pursuant to s. 771(2) of the Criminal Code. Mr. Batista retained counsel who contacted the Crown to seek an adjournment of the hearing. Due to a miscommunication, the Crown did not receive counsel’s message and the hearing proceeded without Mr. Batista being present or given an opportunity to make submissions. As a result, the Crown’s application was unopposed, and the entire amount was ordered forfeited.

[3] Mr. Batista seeks to have this court set aside the forfeiture decision on the basis that he was not afforded an opportunity to be heard. The Crown does not disagree that Mr. Batista had no opportunity to be heard, but submits that there is no recourse available to him because he has no right of appeal and this court is functus officio.

[4] For the reasons that follow, I am of the view that the functus officio doctrine must be applied flexibly in situations where there is no right of appeal and that in the circumstances of this case, this court has the jurisdiction to set aside the order in the interests of justice.

I. FACTS

A. The Recognizance and the Application for Forfeiture

[5] The applicant acted as a surety for Cesar de Sousa, who was charged with criminal negligence causing bodily harm and other offences, and signed a recognizance in the amount of $5000 on October 11, 2018. On February 20, 2020, the recognizance was noted in default pursuant to s. 770(1) of the Criminal Code when Mr. de Sousa failed to appear in court.

[6] At some point in 2024, the Crown brought an application for forfeiture of the amount pledged by the applicant and a date of June 7, 2024 was fixed for the hearing of the application. In accordance with the usual practice, the Crown notified the applicant of its application and the hearing date by registered mail.

B. Communications from the Applicant’s Counsel

[7] Upon receiving the notice, the applicant retained counsel who sent an e-mail to the Crown Attorney’s office on June 5, 2024 advising them that the applicant would be unable to attend on June 7, 2024 because of a previously scheduled appointment and also that he required the assistance of a Portuguese interpreter. The usual practice in the Toronto estreat court is for the Crown to consent to adjournment requests on a first appearance without requiring the individual or counsel to appear.

[8] When counsel for the applicant did not receive a response to his e-mail, he sent a second e-mail on June 6, 2024 which said, “Following up on this matter to confirm no one needs to attend for the adjournment and when the next date will be.” He again received no response. It seems that counsel assumed at that point that the matter would be adjourned, as he sent a third e-mail on June 10, 2024 asking when the next court date would be.

C. The Forfeiture Order

[9] It appears that for some unexplained reason, the Crown did not receive counsel’s e-mails. As a result, the forfeiture application proceeded on June 7, 2024 before a judge of this court. As it was unopposed, the judge granted the application and ordered forfeiture of the entire amount of $5000.

[10] Counsel sent a fourth e-mail on June 17, 2024, again asking when the next court date would be. This time, he received a response on the same day advising him that the application had already been heard and granted.

D. The Application for Reconsideration

[11] An application in relation to the defendant, Mr. de Sousa, had been adjourned to September 20, 2024. Counsel for the respondent appeared on that date to request some form of relief from forfeiture. The Crown took the position that the court had no jurisdiction to grant any relief. After hearing submissions, I reserved my decision on this matter.

II. ANALYSIS

A. Statutory Framework

[12] Forfeiture proceedings in estreat matters are governed by s. 771 of the Criminal Code, the relevant portions of which are as follows:

771 (1) If an undertaking, release order or recognizance has been endorsed with a certificate and has been received by the clerk of the court,

(a) a judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on the Attorney General’s or counsel’s behalf, as the case may be, fix a time and place for the hearing of an application for the forfeiture of the amount set out in the undertaking, release order or recognizance; and

(b) the clerk of the court shall, not less than 10 days before the time fixed under paragraph (a) for the hearing, send by registered mail, or have served in the manner directed by the court or prescribed by the rules of court, to each principal and surety, at the address set out in the certificate, a notice requiring the person to appear at the time and place fixed by the judge to show cause why the amount set out in the undertaking, release order or recognizance should not be forfeited.

(2) If subsection (1) has been complied with, the judge may, after giving the parties an opportunity to be heard, in the judge’s discretion grant or refuse the application and make any order with respect to the forfeiture of the amount that the judge considers proper.

(3) If a judge orders forfeiture of the amount set out in the undertaking, release order or recognizance, the principal and their sureties become judgment debtors of the Crown, each in the amount that the judge orders them to pay.

(3.1) An order made under subsection (2) may be filed with the clerk of the superior court and if one is filed, the clerk shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.

[13] Sections 772 and 773 set out the procedure for enforcement of an order issued pursuant to s. 771. Ultimately, if the surety does not have sufficient assets to satisfy the writ, s. 773(3)(b) provides that a judge may “make any order with respect to the surety and to his imprisonment that he considers proper in the circumstances….”

B. The Nature of the Hearing and the Right to be Heard

[14] At a hearing held pursuant to s. 771, the onus is on the surety to “show cause why the amount … should not be forfeited.” In determining whether or not such cause has been shown, a judge may consider a wide variety of factors, including but not limited to the surety’s diligence in supervising the accused, the amount of the recognizance, the circumstances in which the surety entered into the recognizance, the surety’s means, changes in the surety’s financial circumstances, and the conduct of the surety after the bail order was breached: Canada (Attorney General) v. Horvath, 2009 ONCA 732, 248 C.C.C. (3d) 1, at para. 51.

[15] The outcome of estreatment proceedings can have a significant impact on a surety. The amounts of money that stand to be forfeited are in some cases very significant and a forfeiture order can cause financial devastation for the surety. Even where the amounts are relatively small, an order may still have a significant impact on a surety with limited assets. Furthermore, as noted in Horvath, at para. 48, “the court cannot lose sight of the fact that the ultimate enforcement procedure, even if seldom invoked, is imprisonment.”

[16] Because the onus is on the surety to show cause why forfeiture should not be ordered, s. 771(2) of the Code clearly gives a person against whom forfeiture is sought “an opportunity to be heard,” which in any event is a basic principle of natural justice. Obviously, a surety who is not given an opportunity to be heard cannot show cause why the forfeiture order should not be made. It follows that an unfair deprivation of the right to be heard is not simply a procedural irregularity but, rather, something that can result in a significant injustice with serious consequences.

[17] In this case, because the Crown’s office did not receive counsel’s e-mail for some reason, the applicant was not afforded the opportunity to be heard. The issue that arises is what remedy, if any, he is entitled to.

C. No Right of Appeal

[18] The Criminal Code provides no right of appeal from a decision made pursuant to s. 771(2): Horvath, at para. 26; R. v. Aw, 2008 ABCA 376, 440 A.R. 323; R. v. Gervais, 2017 ABCA 324, at para. 6. Furthermore, because a decision made pursuant to s. 771(2) is that of the Superior Court, it cannot be reviewed by way of certiorari: Horvath, at para. 26; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 865. [1] The undesirability of this state of affairs was the subject of discussion by Justice Trotter, writing extrajudicially in his text The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Reuters, 2024), at §13:18.

D. Availability of Recourse

[19] The issue of whether an individual against whom forfeiture has been ordered has any recourse was considered in R. v. Bal, 2014 MBQB 48, 302 Man. R. (2d) 244. As in this case, an individual against whom forfeiture was ordered sought to have the order set aside. Joyal C.J.Q.B. considered three possible sources of the court’s jurisdiction to grant the relief sought: (1) by way of appeal; (2) through an application for a prerogative writ; and (3) by reopening the hearing. He ultimately concluded that there is no right of appeal absent some statutory basis, that prerogative writs do not apply to superior courts and that he could not reopen the hearing because he was functus officio. [2] I agree with respect to the first two bases, but not the third.

E. The Functus Officio Doctrine

(i) The Doctrine

[20] The common law doctrine of functus officio holds that once a decision-maker has rendered a decision, she has discharged her duty and exhausted her authority: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, 461 D.L.R. (4th) 635, at para. 32. Its application in the criminal context is well established, and as a general rule, a criminal court cannot alter a final decision following a trial after an accused is found not guilty or found guilty (in the case of a jury trial) or sentenced (in the case of a trial by judge alone). However, the doctrine permits of exceptions. For example, a court retains jurisdiction to correct an error in the recording of the decision: R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 76; R. v. Malicia (2006), 82 O.R. (3d) 772 (C.A.), at paras. 24-31.

[21] In this case, there is no suggestion that there was an error in recording the court’s forfeiture decision. The applicant had not appeared or made submissions and had therefore failed to show cause why forfeiture in the full amount should not be ordered. The question that then arises is whether the doctrine admits of other exceptions.

(ii) Origins of the Doctrine and the Possibility of Appellate Review

[22] The origins of the doctrine were described in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R 848, at p. 860:

The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division.

[23] In re St. Nazaire Company (1879), 12 Ch. D. 88 concerned what was described as the “old practice” of the Court of Chancery to rehear its own decrees, which the Court of Appeal determined should no longer be followed because of the rights of appeal created by the Judicature Acts: In re St. Nazaire, at pp. 97-98. The possibility of appellate review seems to have been the central reason why the “old practice” was no longer followed. Based on this, in Grillas v. Canada (Minister of Manpower and Immigration), [1972] S.C.R. 577, at p. 589, Martland J., dissenting, concluded that the doctrine did not apply to the decision of an administrative tribunal from which there was no right of appeal:

The basis for the English rule, to which reference is made in this passage, is to be found in the case of In re St. Nazaire Company [(1879), 12 Ch. D. 88.], in which the Court of Appeal held that, under the system of procedure established by the Judicature Acts, a judge of the High Court had no jurisdiction to rehear and order, as the power to rehear was part of the appellant jurisdiction transferred by the Acts to the Court of Appeal.

The same reasoning does not apply to the decisions of the Board, from which there is no appeal, save on a question of law. There is no appeal by way of a rehearing.

While Martland J. was in dissent in Grillas, as noted in Chandler, at p. 861, only one other judge of the court disagreed with him on this point.

[24] However, the Court in Chandler made it clear that the absence of appellate review did not mean that the functus officio doctrine does not apply at all as there is still some need for finality, although there should be flexibility in its application (at p. 862):

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. [Emphasis added].

Following Chandler, the doctrine has been applied with some flexibility in administrative proceedings, although the extent of that flexibility and the circumstances in which it can be exercised is not always clear: A.S.P. Wong, “Doctrine of Functus Officio: The Changing Face of Finality’s Old Guard” (2020), 98 Can. Bar. Rev. 543, at pp. 562-570.

[25] That the availability of appellate review is part of the rationale for the functus officio doctrine was made clear in Reekie v. Messervey, [1990] 1 S.C.R. 219, a decision released soon after Chandler about the Court’s own power to reconsider its decisions (at pp. 222-223):

This rule was developed to achieve a finality of proceedings which were subject to a full appeal: see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. Its narrow scope may be appropriate when applied to judgments which can be corrected on appeal, but is inappropriate to decisions of this Court which are not subject to appeal. Any error creating an injustice can only be cured by a reconsideration of the decision by this Court. [Emphasis added].

[26] To similar effect, in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 79, the Court stated:

It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v. Messervey, [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if a court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal. [Emphasis added].

[27] The doctrine was described in Canadian Broadcasting Corp., at para. 33, in the following terms:

In its contemporary guise, functus officio indicates that a final decision of a court that is susceptible of appeal cannot, as a general rule, be reconsidered by the court that rendered that decision (see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, at p. 860; Reekie v. Messervey, [1990] 1 S.C.R. 219, at pp. 222-23; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 77-79). [Emphasis added].

See also Fontaine v. Canada (Attorney General), 2018 ONCA 1023, at paras. 30-31; Lantin (Litigation Guardian for) v. Sokolies, 2019 MBCA 115, 442 D.L.R. (4th) 684, at paras. 22-23; Taherkhani v. Este, 2023 BCCA 290, 484 D.L.R. (4th) 631, at para. 81; Ontario English Catholic Teachers’ Assn. v. Toronto Catholic District School Board, 2020 ONSC 595 (Div. Ct.), 320 L.A.C. (4th) 64, at paras. 29-31; Interpaving Ltd. v. Greater Sudbury (City), 2018 ONSC 3005 (Div. Ct.), 425 D.L.R. (4th) 337, at para. 45.

[28] Indeed, one of the rationales for the functus officio doctrine is that it enables effective appellate review by ensuring a stable record for the appellate court to consider: Wong, at p. 548.

(iii) The Principle of Finality

[29] The doctrine of functus officio is one aspect of the principle of finality, which holds that the integrity of the judicial system requires that parties be able to rely on a judicial decision once it is made without fear that it will be revisited or altered, subject to an appeal: Doucet-Boudreau, at paras. 114-115; Canadian Broadcasting Corp., at para. 34. The principle of finality also finds its expression in other doctrines, including res judicata and estoppel: Baker (c.o.b. New Scotland Soccer Academy) v. Nova Scotia (Labour Standards Tribunal), 2012 NSCA 40, 315 N.S.R. (2d) 313, at para. 39.

[30] The principle of finality is not, however, absolute. It is well established that “despite the value placed on finality, there will be situations in which other legitimate interests clearly outweigh finality concerns”: Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257 (C.A.), at para. 19. As noted in Danyluk v. Ainsworth Technologies, 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 33, courts must “balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case.” See also Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at paras. 32-33; R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 109-110; Clatney v. Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377, 131 O.R. (3d) 511, at para. 60.

[31] In R. v. H.(E.) (1997), 33 O.R. (3d) 202 (C.A.), at paras. 31-33, the Court held that the principle of finality does not preclude the Court of Appeal from exercising its inherent or ancillary jurisdiction to control its own process in order to reopen an appeal that had been dismissed, provided that the appeal had not been decided on its merits. The jurisdiction to reopen an appeal will be exercised when it is in the interests of justice to do so having regard to a number of factors, including the reason why the matter was dismissed without a hearing on the merits and the consequences to the applicant: R. v. S.M.J., 2023 ONCA 157, 166 O.R. (3d) 567, at paras. 6-7; R. v. Simmons, 2012 ONCA 94, 212 ONCA 94, 289 O.A.C. 39, at para. 15.

[32] Where there is a right of appeal, there will usually be no reason for an exception to the doctrine of functus officio because balancing the need for finality with the need to ensure that justice is done can be accomplished through appellate review. Indeed, as observed in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 46, “reviewability is an important aspect of finality.” Because there are few situations in which judicial decisions are not subject to review, there are few exceptions to the functus officio doctrine. In some cases, however, an inflexible application of the doctrine in cases where there is no possibility of appellate review will prevent a proper balancing of the public interest in finality with the public interest in ensuring that justice is done.

(iv) Section 40(1) of the Supreme Court Act

[33] I recognize that a decision made pursuant to s. 771(3) is theoretically subject to review pursuant to s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, which provides that the Supreme Court can grant leave to appeal “any final or other judgment.” However, the section makes it clear that leave can only be granted if the case raises an issue of “public importance” or “of such nature or significance” as to warrant decision by the Supreme Court. The reality is that most decisions made pursuant s. 771(2), including the one in this case, will never meet that test and there is in effect no real right of appeal. I note in this regard that the Court of Appeal’s power to reopen an appeal that has not been heard on its merits exists notwithstanding the availability of a further appeal to the Supreme Court of Canada: H.(E.), at para. 35.

F. Conclusion

[34] Based on the foregoing, I conclude that the functus officio doctrine must be applied flexibly with respect to decisions made pursuant to s. 771(2) because of the absence of a right of appeal. That is not to say that all such decisions are subject to being reconsidered whenever an unsuccessful party requests it. Finality still matters, and the fact that a party is dissatisfied with the outcome cannot justify revisiting a decision that has been made following full argument on the merits. Ultimately, reconsideration will only be appropriate when doing so is in the interests of justice having regard to a number of factors, including the length of the delay before reconsideration was requested, the explanation for the delay and the impact of the initial decision on the applicant: S.M.J., at para. 7; Bal, at paras. 53-55; Wong, at p. 574. Where there has been a clear injustice, the values protected by the principle of finality must give way to the need to ensure that justice is done.

[35] In this case, I am satisfied that the applicant fully intended to participate in the hearing and retained counsel for that purpose. Counsel sent e-mails to the Crown, but for some reason which is not the fault of either party the e-mails were not received and the hearing proceeded in the applicant’s absence. As a result, he was denied the right to an opportunity to be heard guaranteed to him by s. 771(2) of the Code and the principles of natural justice. In these circumstances, it is in the interests of justice that the decision be set aside so that a new hearing can be held at which the applicant has an opportunity to be heard.

III. DISPOSITION

[36] The application is granted and the forfeiture order made with respect to the applicant on June 7, 2024 is set aside. The Crown is free to renew its application for forfeiture upon giving adequate notice to the applicant of its intention to do so.

Justice P.A. Schreck Released: October 02, 2024

[1] In British Columbia and Québec, most estreatment proceedings are held in the Provincial Court and are therefore subject to review by way of prerogative writ: Schedule to Part XXV of the Criminal Code.

[2] This aspect of the decision is arguably obiter as the court ultimately concluded that the applicant was not entitled to a remedy regardless of the jurisdictional issue.