R. v. Farrell, 2012 ABQB 744

Court of Queen ’ s Bench of Alberta Citation: R. v. Farrell, 2012 ABQB 744 Date: 20121204 Docket: 091269886B1 Registry: Edmonton Between: Her Majesty the Queen Applicant/Crown - and - Antonio Francisco Farrell Respondent/Accused -and- Tarrabain and Company Respondent/Assignee Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice T.D. Clackson

_______________________________________________________ I. Circumstances [ 1 ] This case involves the potential forfeiture of a $20,000 recognizance, secured by deposit. [ 2 ] In 2009, the accused was arrested and then released on a recognizance which was understood to have required the accused to deposit $20,000 cash as a condition of his release. The recognizance is attached as Appendix A. The money was duly deposited. In 2010, the accused was charged with a number of new offences. Some of the new charges alleged violations of the 2009 recognizance.

The trial of the accused on the new charges is scheduled to occur later this year. [ 3 ] When the accused appeared in provincial court on the new charges, the learned Provincial Court Judge revoked the 2009 recognizance. On that subject, the following exchanges occurred: THE COURT: So are you conceding, Mr. Tarrabain, with respect to Information ending 9886 that it would be appropriate to revoke the accused’s bail with respect to those matters? That is the matter on the revocation application, right? MS. DION: Yes, Sir. MR. TARRABAIN: I – what I’m saying is, Your Honour, I think the test has been met under

Section 524. THE COURT: Now, with respect to the Crown’s application with regards to revocation, judicial interim release for the accused with respect to Information ending 9886 is revoked. MS. DION: Thank you. THE COURT CLERK: It needs to be estreated? THE COURT: Yes. MR. TARRABAIN: No. No, Your Honour, I think that’s a matter that – it gets dealt with at the end of the allegations if they’re proven. THE COURT: Well, it will be dealt with in the – in the overall disposition with respect to judicial interim release on all matters now, right? MR.

TARRABAIN: Yes, but I – the Crown’s asking to estreat that bail and I say that bail shouldn’t be estreated until he’s found guilty of the allegations that are currently before the Court, Sir. THE COURT: Well, but judicial interim release you – you put up a cash Recognizance for certain reasons, Mr. Tarrabain, including some – some attempt to motivate you to comply.

MR. TARRABAIN: Yes. THE COURT: Yes. But we will leave that to the end. MR. TARRABAIN: Okay. [ 4 ] The Court then went on to consider whether the accused should be released on the new charges and ultimately decided to release the accused on both the 2009 charges and the new charges on a new recognizance, which among other things, required a cash deposit of $75,000. [ 5 ] The following exchange occurred after the $75,000 recognizance was agreed upon. THE COURT CLERK: For the Information ending – MR. TARRABAIN: That should be returned – THE COURT CLERK: – 886, that is going to go back to Court of Queen’s Bench – MR.

TARRABAIN: That’s right. THE COURT CLERK: – but I still need to know if the – the funds are to be sent to – for estreatment or estreatment hearing anyways. THE COURT: No. MS. DION: Well, I think they should be sent, Sir, for estreatment hearing and then maybe my friend and I can look at – THE COURT: Yes, they will be sent for a hearing and then you and Mr. Tarrabain can wrestle about that. MS. DION: Yes. If his position is that they need to wait ‘til the substantive matters – THE COURT: Yes. MS. DION: That’s something we could do in that context, Sir. THE COURT: All right. MR. TARRABAIN: Okay.

THE COURT: Send it to hearing, madam clerk.

[ 6 ] As a result, the Clerk of the Court endorsed a Form 33 certificate of default on the 2009 recognizance. The certificate of default states “bail revoked” as the nature of the default and “Bail revoked December 6/10" as the reason for the default. It is admitted that the court clerk who actually took the instructions from the Court on December 6, 2010, was not the clerk who endorsed the Form 33 certificate. That was done by a supervisor. [ 7 ] In any event, the money and recognizance were forwarded to this Court in the usual course. This Court first dealt with the matter on May 17, 2011.

It was adjourned for determination until June 16, 2011. On June 16, 2011, the following exchange occurred: MS. DION: Yes, I – I know. This is a circumstance where the accused has had his bail revoked in Provincial Court, and because of that revocation, the matter of his bail has been sent to this Court for estreatment. My friend provided me with some case law from Mr.

Justice Sanderman that indicated that it’s improper to bring the application for estreatment on the revocation because the accused is still presumed innocent, even though his bail has been revoked, and as such, it should be more properly brought, once he’s either found guilty or pled guilty of the breach of that recognizance. As such – THE COURT: That makes sense, frankly. MS. DION: It does make sense, but that doesn’t seem to be the normal way of things.

So as such, I would like to abandon the Crown’s application today, but I would just like to ensure that this money does not go back to the accused, because I have full intention of bringing it again sooner rather than later. THE COURT: And I think you may be safer to just adjourn your application – MS. DION: Okay. THE COURT: – on a sine die basis. MS. DION: Okay. Then perhaps I will – is that possible, madam clerk? THE COURT CLERK: Could I pick, like, a date for, like, say for example December? MS. DION: Perhaps – THE COURT: And then you could bring it back.

And if it goes on the list for December 15, we could adjourn it again. THE COURT: Maybe a date certain is – is useful. THE COURT CLERK: Right. THE COURT: We will have to notify the folks of that date, anyway.

MS. DION: Yes, Sir. THE COURT CLERK: Yeah. MS. DION: I appreciate that, and I will advise Mr. Tarrabain about that. THE COURT: What is going to be the date in December, madam clerk? THE COURT CLERK: December 15. [ 8 ] Since that date, the matter appeared on the Court’s bail forfeiture list on December 15, 2011 and was adjourned repeatedly until it ended up before me on November 16, 2012. [ 9 ] On June 22, 2012, the 2009 charges were stayed by the Crown.

On June 28, 2012, the accused and his assignee applied to the court for: “an order directing the application for bail forfeiture be dismissed and the funds forwarded to the assignee, Tarrabain and Company”. [ 10 ] At the hearing of this matter, counsel resiled from the application to forward the funds to Tarrabain and Company and simply asked that the Crown’s application for forfeiture be dismissed. [ 11 ] The Crown seeks: ... an Order granting leave to withdraw the application of forfeiture of the recognizance with cash deposit $20,000.00 (“the monies”) entered into by Respondent Antonio Fancisco Farrell dated the 15 th day of October, 2009, in relation to Provincial Court File Number 091269886P1 (the “recognizance”) and for an Order of the Court that the recognizance and monies be returned to the Clerk of the Provincial Court of Alberta and held until the guilt of Mr.

Farrell is determined in respect of outstanding charges said to constitute breach(es) of the recognizance and with leave to re-commence forfeiture proceedings in respect the recognizance (and monies) once those charges are dealt with by the trial court.

In the alternative, the Applicant seeks a direction from this Court that the forfeiture application be adjourned sine die until the trial court has dealt with the outstanding charges and that recognizance and monies be held by the Clerk of this Honourable Court until that time; [ 12 ] It is apparent that both applications essentially seek the same thing, either by dismissal or withdrawal; reject forfeiture and return the recognizance and funds to the Provincial Court. The Crown also asks that I direct that the funds be held until the case for default is proved at trial. II. Issues A.

What is the appropriate procedure for estreatment? 1. What does the recognizance provide? 2. What must be done by the Court asked to direct estreatment? 3. What is the burden of proof and who bears it?

4. What must be contained in a proper Form 33? B. Should the money be held? III. Analysis [ 13 ] The sections of the Criminal Code which bear upon the analysis are as follows: 579

(1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.

(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced. 770

(1) Where, in proceedings to which this Act applies, a person who is bound by recognizance does not comply with a condition of the recognizance, a court, justice or provincial court judge having knowledge of the facts shall endorse or cause to be endorsed on the 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) A recognizance that has been endorsed pursuant to subsection (1) shall be sent to the clerk of the court and shall be kept by him with the records of the court.

(3) A certificate that has been endorsed on a recognizance pursuant to subsection (1) is evidence of the default to which it relates.

(4) Where, in proceedings to which this

section applies, the principal or surety has deposited money as security for the performance of a condition of a recognizance, that money shall be sent to the clerk of the court with the defaulted recognizance, to be dealt with in accordance with this Part. 771(1) Where a recognizance has been endorsed with a certificate pursuant to

section 770 and has been received by the clerk of the court pursuant to that section, (

a) a judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on his behalf, fix a

time and place for the hearing of an application for the forfeiture of the recognizance; and (

b) the clerk of the court shall, not less than ten 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 named in the recognizance, directed to the principal or 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 recognizance should not be forfeited.

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

(3) Where, pursuant to subsection (2), a judge orders forfeiture of a recognizance, the principal and his sureties become judgment debtors of the Crown, each in the amount that the judge orders him to pay.

(3.1) An order made under subsection (2) may be filed with the clerk of the superior court and if an order 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.

(4) Where a deposit has been made by a person against whom an order for forfeiture of a recognizance has been made, no writ of fieri facias shall issue, but the amount of the deposit shall be transferred by the person who has custody of it to the person who is entitled by law to receive it. A. What is the appropriate procedure for estreatment?

i) What does the recognizance provide. [ 14 ] It is plain that there can be no estreatment without violation of the recognizance. The recognizance represents a contract. It is an acknowledgment of debt contingent on defined circumstances.

The recognizance or debt obligation is void if the defined circumstances are met, if they are not, the debt is due and owing. [ 15 ] In this case, the recognizance or promise or acknowledgment of debt stipulates that the accused owes her Majesty “$20,000 cash... to be made and levied of [his] goods and chattels, lands and tenements... if the said [accused] fails in any of the conditions hereunder written”. [ 16 ] The following then appears: “Now therefore, the condition of this recognizance is that if the accused attends court... and further, if the accused... $20,000 (twenty thousand) cash bail set with the following conditions, namely: 1.

You should keep the peace and be of good behaviour. 2. You should remain within the Province of Alberta unless you have written permission from your bail supervisor or the court to leave the province of Alberta...” [ 17 ] There follows seven additional grammatically incorrect “conditions”. I point this out as a potential problem when a court is called upon to determine just exactly what was promised as a precondition to determining whether the promise was broken. [ 18 ] In any event, this tortured prose represents the recognizance which is at the heart of this dispute.

2. What must be done by the Court asked to direct estreatment? [ 19 ] S. 770 requires the presiding judge, in this case Provincial Court Judge Philp, to endorse the recognizance with a Form 33 certificate of default. He must do so if an accused does not comply with a condition of his recognizance. He has no discretion. However, he cannot make that endorsement unless he “has knowledge of the facts”. If he “has knowledge of the facts”, the endorsement must be made and must also set out the particulars required by subparagraphs (

a) through (

d) of s. 770(1). [ 20 ] The accused argued that the endorsement must be made by the Judge and cannot be made by anyone else. That is plainly wrong. In my view, the Clerk of the Judge’s Court could be directed to make the endorsement and doing so complies with the plain wording of s. 770. Furthermore, I don’t accept that the endorsment of the certificate has to be done by the actual clerk who was part of Judge Philp’s Court on that day. His direction is sufficient authority for whomever in the Clerk’s office to complete the administrative requirements of s. 770. 3.

What is the burden of proof and who bears it? [ 21 ] S. 770 is about the procedure which launches the hearing in s. 771. S. 770 concerns the creation and completion of the certificate of endorsement. Such a certificate can’t be completed by just anybody. It had to be completed at the direction of a Judge who knows the facts. What facts? The facts relating to the accused’s failure to comply with his recognizance. Does that mean that the endorsement cannot be made unless it has been proved beyond a reasonable doubt that the accused did not comply with his recognizance? In my opinion, it does not.

I respectfully disagree with the decisions which came to that conclusion: R. v. Taylor [2002] O.J. No. 4246 (O.S.C.) , to the extent that Justice Zelinski can be taken to have concluded conviction for breach was a precondition to a Form 33 endorsement; R. v. Gabrielson [1991] O.J. No. 196 (O.S.C.) ; R. v. Aw [2008] QBQB 261; R. v. Hoff [2006] ABQB 414 relative to Justice Moen’s obiter comments in considering whether a cash deposit is actually security for performance; R. v. Dallaire [2001] O.J. No. 140 (O.C.A.) - Justice Laskin in chambers; R. v. Goy [1994] S.J. No. 111 (Sask. Q.B.) ; R. v. Budnick [1999] S.J.

No. 327 (Sask. Q.B.) ; R. v. Esakin [1999] S.J. No. 342 (Sask. Q.B.) ; R. v. Boughner [1999] O.J. 3769 (Ont. S.C.) to the extent that Justice Wright’s obiter comments can be considered to endorse the reasoning in ( Goy , Budnick and Esakin ). [ 22 ] None of the referenced decisions conduct any analysis as to why the breach must be proved beyond a reasonable doubt nor how that

interpretation fits with the other provisions of the Criminal Code and specifically the judicial interim release provisions. No analysis is conducted to reflect the fact that a hearing will occur under s. 771. [ 23 ] I certainly agree with the notion that is part of the subtext of the foregoing decisions, the Crown usually has the onus of proof and the burden is proof beyond a reasonable doubt. However, with respect, requiring a criminal standard of proof for what amounts to an administrative act does not seem to be compelled by the wording of s. 770.

No one is deprived of anything by a certificate of default in Form 33. Rather, the Court having considered the matter has to decide if there is a basis to hold a hearing to determine whether the accused or his surety should be compelled to pay. [ 24 ] At the hearing to determine that question, conducted in accordance with s. 771, the accused and others who may be interested are entitled to notice and to be heard. They are entitled to “show cause” why the recognizance should not be forfeited.

The presiding judge in a s. 771 hearing is clothed with the discretion to grant or refuse the forfeiture or make any other order in that regard he considers to be proper. In short, the Criminal Code provides for a trial or hearing about forfeiture and casts the onus on the accused and his sureties. The Form 33 endorsement, is, in that context, merely a commencement document. To hold that the s. 771 hearing can’t be commenced until it is proved beyond doubt that a breach has occurred reduces a s. 771 hearing to an exercise in sympathy garnering.

The fact that a s. 771 hearing may have become routine and perfunctory in practice is not justification for concluding that that is what Parliament intended. Rather, that development may simply reflect a lack of attention to providing actual notice of the hearing to those affected by it. [ 25 ] S. 770 and 771 are part of the provisions relating to judicial interim release in the Criminal Code . It is trite that an accused is constitutionally entitled to reasonable bail.

By virtue of s. 515 of the Criminal Code , where the onus is on the Crown to show cause why an accused should be detained, it is trite that the onus is a balance of probabilities. It makes no sense that a constitutionally guaranteed right can be lawfully overcome on a balance of probabilities but the Crown’s burden is proof beyond a reasonable doubt to get the opportunity to try to enforce a promise to pay.

[ 26 ] Additionally, cash bail is usually required as a condition of release because it is thought that it is necessary to ensuring adherence to the conditions of release. Put another way, offering a cash deposit may be the last refuge of an accused whose continuing detention would otherwise be justified. In that environment, Moen J.’s observations in R. v. Hoff (supra) are particularly germane. At para. 13, she said: I have concluded that there is authority for a judge to impose a cash deposit as a condition of release where the concern of the court is based on the second ground.

However, there are a number of difficulties with using a cash deposit for securing the good behaviour of an accused while he is on judicial interim release. I discuss those difficulties in the next section. Central to these difficulties is the question: can a bail judge ensure that a cash deposit will be forfeited if the accused breaches any term of his recognizance?

I ask the question because a cash deposit would be of little benefit if there was no certainty that it would be forfeited if the accused failed to comply with the conditions of his release. [ 27 ] She then continued at paras 19 and 20: These provisions will in some cases mute the deterrent effect associated with forfeiture. Before a cash deposit used to deter further behaviour described in the second ground is forfeited, the accused must be convicted of the underlying offence. In the case of failure to appear, there is often no legitimate chance of acquittal.

Although the Crown does have to prove the accused intended not to appear, the facts are usually straightforward and often result in guilty please or convictions. If forfeiture depends on successful prosecution of an entirely separate criminal offence, the deterrent effect is diminished. Although the forfeiture process may provide a sufficient level of deterrence in certain circumstances it does not satisfy the Court’s concern in this application. This accused is alleged to have committed new criminal offences on two separate occasions subsequent to his initial release from custody.

This pattern of behaviour requires the imposition of conditions capable of immediately deterring the accused from committing further offences. The relatively distant possibility of forfeiture proceedings does not satisfy this need. [ 28 ] Plainly, my colleague was of the view that proof of breach was a precondition to forfeiture. Equally, plainly, that fact diminished in her mind the potential that a cash bail order would compel good behaviour.

While I do not agree with her premise, I do accept her conclusion that cash bail orders are of reduced effectiveness if proof beyond a reasonable doubt of a breach of recognizance is necessary in order to forfeit that deposit. The result is that by attempting to preserve an accused’s property, we undermine the accused’s ability and arguably his constitutional right to release.

There can be little doubt that Parliament did not intend that result and the language of s. 770 does not require that conclusion. [ 29 ] Continuing with s. 515 , subsection 4.1 provides that where it is alleged that the accused used personal violence, the justice releasing him must, subject to limited discretion, deprive the accused of his firearms. While the deprivation may be temporary, it occurs not on proof beyond a reasonable doubt or even proof on a balance of probabilities. All that is required is an allegation that the accused used personal violence.

That is enough for the State to interfere with the accused’s property. Again, why would proof beyond a reasonable doubt be necessary in order to merely obtain the opportunity to deprive the accused of property he has pledged. [ 30 ] The Criminal Code empowers the State to search and to arrest on reasonable and probable grounds. The potential impact upon the accused and his property is obvious. Are we to assume that the pledge of money is somehow entitled to an elevated status which requires the State to prove its case beyond a reasonable doubt before it can take any steps to enforce the accused’s promise?

Again, I don’t believe s. 770 requires such an

interpretation. [ 31 ] In my view, in keeping with the onus which is common to bail applications, the appropriate determination of the requirements of s. 770 is that the Crown must show cause why forfeiting the recognizance is justified. Once met, the presiding judge must cause a Form 33 endorsement to be made upon the recognizance. 4. What must be contained in a proper Form 33? [ 32 ] S. 770 makes it clear, as I have attempted to explain, that the endorsement is a commencement document for the s. 771 hearing. However, s. 770 mandates certain information as part of the endorsement. I agree that if the endorsement does not address

subparagraphs (

a) through (d), it does not comply with s. 770 and is not sufficient to have commenced the proceeding in s. 771: R. v. Taylor (supra); R. v. Koh [2005] B.C.J. No. 2205 (B.C. Provincial Court) ; R. v. Kunard [1991] S.J. No. 382 (Sask. Q.B.) ; R. v. Thompson [2002] B.C.J. No. 2199 (B.C. Provincial Court) ; Goy (supra); Budnick (supra); Boughner (supra); R. v. Cunningham [1997] O.J. No. 5126 (Ont. C.J.) . [ 33 ] In this case, the Form 33 endorsement is plainly deficient. In result, the endorsement is a nullity and the recognizance must be returned to the Provincial Court along with the money. B.

Should the money be held by the Provincial Court? [ 34 ] Administratively, as long as the information upon which the recognizance is based remains before the Court, and the recognizance remains in effect, the cash deposit continues to stand as security. In this case, at this point in time, the recognizance has long since been revoked and the information to which it related has been stayed.

Therefore, unless some basis exists to allow the Crown to imprison the money, it must be paid out in the usual course to the party entitled, in this case, apparently that is the assignee. [ 35 ] In argument, I asked Crown to advise me on what authority the security could be seized. I was told it just made sense that the money once put up should stay put, where it is alleged that the recognizance it secured was breached, until the necessary steps could be taken either by way of a prerogative writ or a proper endorsement under s. 770 to secure the money. The Crown relied upon Aw (supra) to support that proposition.

In Aw (supra), Justice Sanderman concluded that an imperfect Form 33, which formed the foundation for the hearing under s. 771 and which was perfected subsequent to the scheduling of the hearing but before the hearing actually took place, was adequate to the purpose. He offered these comments at paras. 11-13 inclusive: The perfected certificate complies with the provisions of s. 770. Mr. Aw has no answer for it. Forfeiture of the monies posted on his behalf to obtain his release should occur unless one of the other arguments advanced on his behalf is successful.

The Crown takes the position that what is before the Court at the time of the hearing determines whether or not forfeiture is appropriate. The certificate that is presently before the Court clearly establishes a default. The original certificate did not. The Crown was able to withdraw the original certificate with the permission of the Court. This was not the usual type of default. Most defaults occur when the accused fails to appear for some Court appearance. Here there was subsequent conviction that triggered the default.

The first certificate was one that is issued in the normal course of events by the Court administrator of the Provincial Court but was inappropriate for this particular hearing. The Court did not have time to deal with this matter on December 20, 2007. The direction to go to special chambers allowed the Crown to perfect its case. A withdrawal of the earlier application in order to get the proper certificate before the Court was allowed. This exercise of discretion by the Court does not raise any argument akin to res judicata.

The withdrawal of this application did not trigger an automatic return of the funds to the respondent. S. 770 and s. 771 mandate a hearing. They mandate a hearing on the merits to see whether or not there has been a default in the recognizance that warrants forfeiture. The withdrawal of a discrete application does not decide the matter in favor of the respondent. A statutory scheme is in existence that directs that there be a hearing.

The Court allowed the withdrawal of the original application in order to obtain a certificate that would permit a hearing on the merits without calling viva voce evidence. [ 36 ] The issue before Justice Sanderman is not before me. He appears to have had an ongoing proceeding which resulted in the original Form 33 being withdrawn and immediately replaced by a compliant Form 33. Therefore, when he came to hear the matter, he had a Form 33 which was appropriate to the task.

In the case before me, there is no valid Form 33. [ 37 ] In my view, there is no authority to imprison the money except as provided by s. 770(4) and s. 771(4). Since there is no existing Form 33 endorsement, neither of those sections apply and the money is at this point the property of the accused/assignee. [ 38 ] Since there is no prerogative writ application before me, I cannot accede to the Crown’s suggestion that the money could and should be seized and held on that basis. C. Result

[ 39 ] The application for forfeiture is dismissed as the Form 33 is a nullity. The recognizance and funds are to be returned to the Provincial Court. Heard on the 16 th day of November, 2012. Dated at the City of Edmonton, Alberta this 4 th day of December, 2012. T.D. Clackson J.C.Q.B.A. Appearances: J.A. (Sandy) MacDonald Public Prosecution Service of Canada for the Crown Lynn Marie Rideout Tarrabain & Company for the Accused Adam Y. Karbani Davidson Gregory Danyluik for the Assignee

Appendix A