R. v. Pawar Date:, 2012 BCPC 568

Citation: R. v. Pawar Date: 20121016 2012 BCPC 0572 File No: 31024-3-E Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASBIR SINGH PAWAR RULING OF THE HONOURABLE JUDGE E.L. BAYLIFF Counsel for the Crown: S. Nixon Counsel for the Defendant: R. Kaiser Place of Hearing: Williams Lake , B.C. Date of Hearing: April 2, 2012 Date of Judgment: October 16, 2012

[ 1 ] The federal Crown is applying, pursuant to s. 771 of the Criminal Code , for forfeiture of a $10,000 cash deposit posted by Jasbir Singh Pawar on October 29 th , 2010 pursuant to a Recognizance of Bail. I had released Mr. Pawar on this Recognizance following a contested bail hearing on October 28 th , 2010. [ 2 ] At the time, Mr. Pawar faced several charges of drug trafficking and one of the conditions of his release was that he not possess a cell phone. The evidence I have heard at this hearing establishes that on October 30 th , 2010, the day following his release, Mr.

Pawar purchased a Samsung cell phone and activated it on his existing account with Telus. Later that evening he was found, in an intoxicated state, in possession of a black cell phone which I am satisfied, (in the absence of any other evidence), is the same cell phone he had purchased earlier that day. Mr. Pawar was arrested and charged for breaching the “no cell phone” condition and has remained in custody since then. [ 3 ] In 2011 Mr. Pawar entered guilty pleas to several of the trafficking charges and on May 11 th , 2011 I sentenced him to a penitentiary sentence for those offences.

See Reasons for Sentence filed in Williams Lake Registry court file no. 31024. The charge of breaching his recognizance was stayed by the Crown at the time of his sentencing on the lead charges. For various reasons it took until April 2 nd , 2012 to get this estreatment proceeding on for hearing. On that date I heard argument and some evidence and reserved judgment on the following issues: 1 . Is the Certificate of Default endorsed on the Recognizance (Form 33) valid? 2 . Has Mr. Pawar showed cause why the deposit ought not to be forfeited? 3 .

If not, ought the deposit to be forfeited in whole or in part? [ 4 ] My decision on each point is as follows. I go on, in the remainder of this document, to explain my reasons: 1 . The Certificate of Default is valid. 2 . Mr. Pawar has failed to show cause why the deposit ought not to be forfeited. 3 . I have concluded in the circumstances of this case that it is proper to order forfeiture of the full amount deposited ($10,000). 1 . Is the Certificate of Default valid? [ 5 ] On April 2 nd , in an oral Ruling, I found that the Certificate of Default was valid.

I have re-considered this Ruling in light of further information that came to my attention and the further submissions of counsel received on July 25 th (Crown) and October 4 th (Defence). My conclusion is, once again, that the Certificate of Default – the Form 33 – is valid. I will explain my reasons for reaching this conclusion. [ 6 ] Justice of the Peace M. Sanford completed the Certificate of Default on November 8 th , 2010. It is a pre-printed form on the back of the Recognizance which she filled in by hand.

It reads as follows (the handwritten parts are in quotation marks): Certificate of Default to be Endorsed on Recognizance – Form 33 I hereby certify that “ JASBIR SINGH PAWAR ” (check applicable box) _ has not appeared as required by this recognizance “ √” has not complied with a condition of this recognizance and that by reason thereof the ends of justice have been: (check applicable box) _ defeated “√” delayed The nature of the default is: “ A charge of Breach of Recognizance dated October 30, 2010 File 30124-2-A ”. The reason for the default is: (state reason(

s) if known) “ See above ” The names and addresses of the principal and sureties are as follows: Name Address “ JASBIR SINGH PAWAR ” Dated “ November 8, 2010 ” [Signature] at “ Williams Lake ” “ M. Sanford ” British Columbia a Justice of the Peace in and for the Province of British Columbia

[ 7 ] It is argued on the authority of R. v. Thompson, 2002 BCPC 399 , R. v. Koh, 2005 BCPC 448 and R. v. Gillis, 2007 BCPC 84 , that this Certificate does not comply with the requirements of s. 770 of the Criminal Code and, as such, is defective and not sufficient to constitute evidence of a default. The errors or defects that have been identified in this document are: 1.1 insufficient and misleading description of “the nature of the default”; 1.2 inaccurate description of the “the reason for the default”; 1.3 inaccurate reference to the ends of justice being “delayed” by the default; 1.4 failure to include Mr.

Pawar’s address. [ 8 ] I will discuss each in turn. 1.1 Insufficient and misleading description of “the nature of the default” [ 9 ] Section 770(1)(

a) requires a justice “having knowledge of the facts” to endorse in the Form 33 “the nature of the default”. In this case, Justice of the Peace Sanford described the nature of the default as: “A charge of Breach of Recognizance dated October 30, 2010 File 30124-2-A”. [ 10 ] As a first point, was argued on April 2 nd that I could not look beyond the four corners of the Certificate to determine its meaning. Specifically, counsel for Mr.

Pawar argued that I could not examine the court file to determine what the Justice of the Peace was referring to when she wrote in “ A charge of Breach of Recognizance dated October 30, 2010 File 30124-2-A ”. [ 11 ] I disagreed. On the authority of R. v. Truong, 2008 BCSC 1151 , ¶ 36 to 61 , I concluded that I could examine the court file to see what document the Justice of the Peace was referring to. Having reached this conclusion over the lunch break on April 2 nd , 2012, I requested that the Clerk of the Court produce the court file to me.

I located within that file an Information that appeared to match the description given by the JP in the Form 33. It charged Mr.

Pawar with breaching his Recognizance on October 30 th , 2010 in the following words: “Jasbir Singh Pawar, on or about the 30 th day of October, 2010, at or near Williams Lake, in the Province of British Columbia, did being at large on his recognizance entered into before a Judge and being bound to comply with a condition of that recognizance, to wit: Condition 9: You shall not possess any cell phone, pager or portable telecommunication device, without lawful excuse failed to comply with that condition by possessing a cellular telephone, contrary to Section 145(3) of the Criminal Code .” [ 12 ] This Information had no court file number written on it so it could not be directly identified as the “ File 30124-2-A ” referred to by the JP.

However, I noted that it was enfolded in a Record of Proceedings document which did bear a number which I read at the time as being the same number referred to by the JP – “30124-2-A”. (I take judicial notice of the fact that a Record of Proceedings is a document upon which the court clerks and JP’s record certain essential elements of the court proceedings concerning any particular Information.) I also noted that other court documents, such as Warrants of Remand, enfolded in this Record of Proceedings along with this Information, all related to Mr.

Pawar, and that all those other documents bore this same number: “30124-2-A” (or so it appeared to my eyes at the time).

A copy of the Information and the Record of Proceedings in which it was enfolded was marked as Exhibit 2. [ 13 ] On the basis of these observations I concluded, on April 2 nd , that the un-numbered Information I had located in the court file was the Information the JP was referring to when she wrote in the Form 33 that the nature of the default was: “ A charge of Breach of Recognizance dated October 30, 2010 File 30124-2-A ”. [ 14 ] I concluded that the Justice of the Peace acted properly in citing the Information specifically, by number, and that there was no need for her to laboriously copy out the wording of the charge into the Form 33, or to otherwise particularize the nature of the default.

I found that this reference to a specific Information amounted to adequate particularization sufficient to put the principal, Mr. Pawar, and his counsel on notice as to the nature of the default alleged – and to give them notice of the case against which he must show cause pursuant to s. 771 . An Information is a public document and Mr.

Pawar could always have requested a copy had he required further detail about the nature of the default alleged. [ 15 ] Having ruled that the Form 33 was valid on April 2 nd , I went on to hear counsel’s submissions on the remaining issues, dealing with whether the cash deposit should be forfeited in whole or in part. I reserved judgment on these issues at the end of the day on April 2 nd .

While working on my written reasons later in April I realized, to my surprise, that I had misread the number on the Record of Proceedings marked Exhibit 2 and that the court file number shown on that document was actually “31024-2-A” rather than “30124-2-A” as I thought I had read on April 2 nd , and as referred to by the JP in her Form 33.

Until that point, neither counsel nor I had noticed the discrepancy between the number written in by the JP and the actual court file number. [ 16 ] On May 8 th I wrote to counsel pointing out the discrepancy and asking for their further submissions on the issue of the validity of the Form 33 and, as noted earlier, I have now received those submissions. [ 17 ] In his further submission, counsel for Mr. Pawar argues that, due to this discrepancy in numbers, the Form 33 is even more mis- leading than he had previously asserted.

It is no longer possible to say that the “nature of the breach” is adequately particularized by reference to a charge of breach of recognizance with a particular court file number, because the court file number shown would take the reader to an entirely different file and entirely different documents than those marked as Exhibits 1 and 2. There is no evidence, it is argued, as to whether there is such a thing as file “ 30124-2-A ” and, if such a file does exist, that it has anything to do with Mr.

Pawar. [ 18 ] The Crown’s position is that the JP clearly made a mistake and inverted the “1” and the “0” in writing the file number into the

Form 33. The fact is, argues the Crown, Mr. Pawar’s file was located, and there was an Information in that file containing “A charge of Breach of Recognizance dated October 30, 2010” as described in the Form 33 which provided adequate particularization to Mr. Pawar of “the nature of the breach” alleged. The inversion of the numbers was a small, technical error, Crown argues, which was so minor that it was not even detected by three people – two counsel and the judge – focussed on exactly this issue of particularization.

Thus, it is argued that the court should continue to find that the Form 33 is valid despite this error. [ 19 ] In my view the Crown’s position is the correct one on this point. I think it is clear that the JP simply made a mistake and inverted the numbers. It is clearly an easy thing to do. Counsel and I made the same mistake throughout the day on April 2 nd . Despite having at least three documents with the correct number in front of us (the court list, the Crown’s Requisition and Exhibit 2) we all failed to pick up on the fact that the JP had written a different number into the Form 33.

Our eyes and our minds also inverted the “1” and the “0”. [ 20 ] The focus must be on substance rather than form here. The purpose of the requirement that the Form 33 state “the nature of the default” is to put the principal and surety on notice about the nature of the default alleged so that they can prepare to show cause why the recognizance should not be forfeited. In the case at bar there was no surety so it was only Mr. Pawar who needed to be put on notice. It would certainly have caused initial confusion if Mr.

Pawar or his counsel had gone to the Court Registry and sought a copy of the “ File 30124-2-A ” referred to in the Form 33 because this would have led to a court file that was quite unrelated to Mr. Pawar. However, the file number was not the only piece of information provided by the JP in the Form 33. She also wrote in that it was “ a charge of Breach of Recognizance ” and that the charge was “ dated October 30 th , 2010 ” and thirdly, that it concerned one “ JASBIR SINGH PAWAR ”. With these three additional pieces of Information and with the similarity between the number written in (“ 30124-2-A ”) and Mr.

Pawar’s actual file number (31024-2-

A) I am certain that the confusion about which file was being referred to would quickly have been resolved, Mr. Pawar’s file would have been located and the Exhibit 2 documents (Record of Proceedings and Information) would quickly have been identified. [ 21 ] In

summary on this first point, I find that the description of “the nature of the default” in the Form 33 was sufficient and, despite the error in the file number, not misleading. 1.2 Inaccurate description of the “the reason for the default” [ 22 ] The failure to provide the reasons for default other than by saying “ see above ” was also attacked. I agree that it probably reveals a misunderstanding on the part of the justice about what s. 770(1)(

b) means. The sub-section is rather ambiguous, but I agree that it is aimed at the accused’s reasons for defaulting, if those are known, rather than the nature of the default which is specifically dealt with in sub-section (a). Therefore the justice was mistaken in referring the reader back to the nature of the default with the words “ see above ”. However, in my view such a mistake is not fatal because it is clear from the wording of s. 770(1)(

b) that the Justice of the Peace only needs to fill in this part of the form if she knows the reasons why the accused defaulted. This is referred to in several cases, most notably in R. v. Koh , 2005 BCPC 448 at ¶ 11 . There is no evidence to suggest that the Justice of the Peace in this case knew the reasons why Mr.

Pawar breached the terms of his recognizance. 1.3 Inaccurate reference to the ends of justice being “delayed” by the default [ 23 ] As for the Justice of the Peace’s choice of “delayed” as in the “the ends of justice were delayed”, I think it would probably have been more accurate to have said that the ends of justice were “defeated” in a case such as this where the alleged breach is of one of the conditions of the Recognizance rather than a subsequent failure to attend court.

Breach of a court order is generally seen, I believe, as undermining the public’s faith in Canada’s pre-trial release system and as such constitutes a “defeat” of that system rather than a “delay”. See R. v. Aw, 2008 ABQB 261 at ¶ 19 . However, on the authority of R. v. Wan, 2010 BCSC 588 at ¶ 27 I do not find that the Justice of the Peace’s probable error on this point renders the Certificate a nullity. The Justice of the Peace clearly turned her mind to the requirements of s. 770 .

She may have made an error on this point but she certainly attempted to comply and I fail to see how her choice of one option rather than the other confuses or detracts from the notice provided to Mr. Pawar by the Certificate. 1.4 Failure to include Mr. Pawar’s address [ 24 ] Finally, the failure to provide an address for Mr. Pawar on the Form 33 is a breach of s. 770(1)(

d) but not, I conclude, a defect of sufficient significance to render the document a nullity. Trotter in The Law of Bail in Canada, Second Edition, Carswell, 2000 at p. 475, emphasizes that the focus must be on fundamental defects that go to the heart of the obligation contemplated by the recognizance rather than technical defects. There were no sureties who required notice in this case, only the principal, Mr. Pawar, himself. He knew what his location was even though the Justice of the Peace apparently did not. Mr.

Pawar was in custody in a provincial correctional institution at the time and his presence could readily have been located by Sheriffs Services or by the correctional authorities in the province for the purposes of serving him notice of the Form 33 and of the Crown’s intention to seek forfeiture of the cash deposit pursuant to s. 771 . 2 . Has Mr. Pawar showed cause why the deposit ought not to be forfeited? [ 25 ] I am satisfied, in the absence of any evidence to the contrary, that Mr. Pawar understood the conditions I released him on back on October 28 th , 2010.

I also find that he understood that he stood to lose the $10,000 cash deposit if he failed to comply with any of those conditions during the time he was at large in the community pending the completion of his trial. [ 26 ] I am satisfied on the evidence I have heard that Mr. Pawar purchased and activated a cell phone the day following his release and that he had it in his possession later that evening at the residence where he was arrested. It has not been argued that his actions were justified or that they ought to be excused. [ 27 ] I therefore conclude that Mr.

Pawar knowingly breached the “no cell phone” term within 2 days of his release and I find that he has failed to show cause why the deposit ought not to be forfeited in whole or in part.

3 . Should the deposit be forfeited in whole, or in part? [ 28 ] Counsel for Mr. Pawar emphasizes that Mr. Pawar simply purchased and activated a cell phone. There is no evidence that he was doing so for the purpose of engaging in criminal activity such as drug trafficking. It is argued that Mr. Pawar’s case is much less serious than that of the respondent in R. v. Aw, 2008 ABQB 261 where the respondent had not only activated a cell phone in contravention of a “no cell phone” term but had also engaged in drug trafficking with the cell phone, all while being subject to a Recognizance.

In Aw’s case the cash deposit was $15,000 but despite the very aggravated circumstances, the court still only ordered the forfeiture of $11,000 or about 70% of the cash deposit. It is argued that because the circumstances are much less aggravated in Mr. Pawar’s case, a much lower percentage of the cash deposit should be forfeited – no more than $5,000 or 50%. [ 29 ] I would pause here to say that, on my reading of R. v.

Aw , the result was, to some degree a product of the judge’s concern to see that counsel in that case was treated fairly after bringing defects in the Form 33 to the Crown’s attention ahead of time. [ 30 ] In another case referred to by counsel, R. v. Wan 2010 BCSC 588 , the facts were rather similar in that Wan was on a “no cell phone” condition. About 10 months later he was arrested for breaching this term.

The reported case deals with a preliminary challenge to the validity of the Form 33 rather than the amount of the deposit to be forfeited but it seems clear, from Justice Truscott’s comments, that he would not have ordered forfeiture of any part of the deposit. [ 31 ] Crown Counsel argues that I should order forfeiture of the entire cash deposit of $10,000.

She cautions that forfeiture of anything less than the full amount, other than in very exceptional circumstances of hardship or excuse, has the effect of undermining the effectiveness of a cash deposit as a tool to ensure that a suspect complies with bail terms. She argues that Mr. Pawar demonstrated a flagrant disregard for the orders of the court by buying and activating a cell phone within 2 days of the terms of the recognizance being imposed upon him – terms which his counsel had proposed to the court during a hotly contested bail hearing.

In these circumstances, the Crown argues, there is simply no reason why there should be forfeiture of anything less than the entire deposit. [ 32 ] As a starting point on this issue I bear in mind the statutory framework within which my decision about forfeiture must be made. Section 771(2) reads as follows: “...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 forfeiture of the recognizance that he considers proper.” [ 33 ] The

section grants the court wide discretion – I may make “any order with respect to forfeiture that [I] consider proper”. However, in Trotter on The Law of Bail in Canada, 2 nd Edition, 2000 at p. 481, the author writes that “it should be the exceptional case in which the court invokes its powers to relieve against forfeiture.” (Justice Trotter’s comment was made in relation to forfeiture of cash bail posted by a surety whereas in Mr. Pawar’s case we are dealing with cash deposited by the respondent himself). [ 34 ] Cases such as Canada (Minister of Justice) v. Mirza, 2009 ONCA 732 at ¶ 40-46 and United States v.

Le, 2010 BCSC 1653 at ¶ 30-37 explain the policy reason behind the “rigorous approach” of the law which is that forfeiture of the whole of the cash deposit must be the starting point in estreatment proceedings. (¶ 34 of United States v. Le ). It is because the whole purpose of cash or surety bail is to exert a “pull” on an accused who, because of his or her criminal record, associates, alleged offences or for other reasons is seen as being at risk of committing further offences while awaiting trial, or of not showing up for trial.

For cash or surety bail to have this moral, psychological or financial “pull” it must be seen as relatively ‘non-negotiable’ in the event of breach. Put another way, to be effective, the message must be clear – “if you breach the terms of your bail you will lose your money (or your surety will lose his/her money)”. [ 35 ] In order to uphold the integrity of the bail system a rigorous approach is therefore the starting point in estreatment proceedings. It is clearly not the end point though.

The cases emphasize that wide discretion is given to the court and there is no absolute rule that forfeiture of the whole amount of the cash deposit will always be ordered in the event of breach. [ 36 ] The cases I have been able to examine mainly deal with forfeiture of a deposit by a surety, whereas in Mr. Pawar’s case we are dealing with a deposit by the accused. Recognizing this difference, I still find that there are points made in these cases which provide helpful guidance in the case at bar.

At ¶ 51 of the Mirza decision Justice Rosenberg offered the following description of factors the court may consider in making an order concerning forfeiture: “...In the end, the judge must attempt to balance various considerations in exercising the discretion conferred by s. 771(2). I do not think it is helpful or even possible to develop an exhaustive list of the factors that the judge should take into account in exercising this discretion. Further, not all factors will be of equal relevancy or weight in all cases.

A review of the cases does, however, show that there are categories of factors that the courts regularly take into account, including: the amount of the recognizance; the circumstances under which the surety entered into the recognizance, especially whether there was any duress or coercion; the surety's diligence; the surety's means; any significant change in the surety's financial position after the recognizance was entered into and especially after the breach; the surety's post-breach conduct, especially attempts to assist the authorities in locating the accused; and the relationship between the accused and the surety.” At ¶ 52 he spoke about the evidentiary burden on the respondent accused, or surety, showing cause why the recognizance should not be forfeited: “The circumstances relevant to the exercise of the court's discretion to relieve against full forfeiture are largely within the knowledge of the surety.

Sureties asserting that they should be relieved from forfeiture of any amount of the recognizance have the obligation to adduce credible evidence to support their position. The courts should also take into account that the Crown will often not be in a position to adduce evidence to refute those claims.” [ 37 ] In the case at bar Mr. Pawar was released on October 29 th , 2010 after a hotly contested bail hearing that lasted, as I recall, for several hours. I ordered the release of Mr.

Pawar on a $10,000 cash deposit because, given his criminal record, personal circumstances and the allegation that he was involved in active and ongoing trafficking of cocaine, marijuana and Ecstasy, I felt that a substantial

deposit was required to assert the necessary “pull” on him to comply with bail conditions. Mr. Pawar has called no evidence at this estreatment proceeding. There is nothing before me, therefore, to suggest that he did not understand his conditions, or that he did not understand that he stood to lose his cash deposit if he breached any of his conditions. There is also no evidence before me about why he breached the ‘no cell phone’ condition or about why he breached it so quickly after his release. If there were any extenuating or exceptional circumstances I have not been told of them.

Obviously, I recognize that $10,000 is a significant sum of money to all but the truly wealthy. However, beyond that there is no evidence before me about Mr. Pawar’s means or financial position, or about the effect on him or those around him of forfeiture of some or all of the $10,000 deposit. [ 38 ] In these circumstances Mr. Pawar has failed to show cause why I should deviate from the “starting point” which requires a rigorous approach to forfeiture. I therefore order forfeiture of the full amount deposited - $10,000.00. _____________________________ E. L. Bayliff Provincial Court Judge