R. v. King, 2019 NLSC 22

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. King , 2019 NLSC 22 Date : January 31, 2019 Docket : 201701G0002 Her Majesty The Queen v. Brian Robert King Before: Justice Daniel M. Boone Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 28, 2019 Date of Oral Judgment: January 28, 2019 Appearances: Richard L. Deveau Appearing on behalf of the Crown Brian Robert King Appearing on his own behalf

Authorities Cited: CASES CONSIDERED: R. v. Howell , 2008 NLTD 70 ; R. v. Thomas , 2016 NLTD(G) 56 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Boone, J. : INTRODUCTION Application for Forfeiture of Cash Bail. [ 1 ] This decision arises from an application by the Crown for an order pursuant to subsection 771(2) of the Criminal Code , R.S.C. 1985, c. C-46 directing forfeiture of a cash recognizance entered into by the Respondent.

BACKGROUND [ 2 ] The Respondent was charged with criminal negligence causing death and with dangerous driving arising from a motor vehicle accident that occurred in July 2016. He was released on bail and issued a Recognizance dated August 30, 2016, which required him to post a cash bail deposit with the Provincial Court in the amount of $5,000. [ 3 ] On September 19, 2016, the Respondent was charged with breach of recognizance and breach of probation pursuant to

section 733.1(1) of the Criminal Code . On March 23, 2017, he pled guilty to those charges and was sentenced by Judge Short to consecutive 30-day sentences on each charge. He remained in custody for a period of five months before being released on bail. He later pled guilty to certain of the substantive charges against him and was sentenced.

The Crown noted in submissions that the Respondent complied with the conditions of this later bail. [ 4 ] Subsection 771.1 requires that a proceeding in respect of an alleged default of a recognizance be supported by the filing of a Certificate in Form 33 setting out the nature and reason for default, if known. The Form 33 filed in support of this Application does not set out either the nature of, or reason for, the default. The Crown did file a Certificate demonstrating the Respondent’s convictions for breach, but this did not state the nature of the default.

The Crown took the position that if the Form 33 Certificate needed to be amended, then an adjournment would be required. Mr. King does not want a postponement. [ 5 ] The Crown advised the Court that the circumstance of breach of recognizance was that the Respondent was 15 minutes late for the curfew imposed with the recognizance. The Crown acknowledged that this breach was at the lowest end of the spectrum of seriousness of such an offence. Given that acknowledgement and Mr.

King’s desire to have this matter dealt with today, I have decided to proceed on the basis of the Form 33 as filed, supplemented by the Crown’s concession regarding the circumstances. [ 6 ] Mr. King advised the Court that the reason for his delay in returning to his home was that the car in which he was a passenger had a flat tire. The Crown rightly points out that the place for this to have been raised would have been in sentencing before Judge Short, at which point the assertion could have been tested.

I take no account of this explanation in my decision. issues [ 7 ] The only issues in this matter are whether any amount of the cash deposit ought to be ordered forfeited, and, if so, how much. considerations [ 8 ] The Crown seeks the forfeiture of the whole of the amount of cash deposit, but acknowledges that subsection 771(2) of the Criminal Code gives the presiding judge a discretion to grant or refuse the application for forfeiture, and that included in that discretion is the option to order forfeiture of only part of the amount.

The Code does not set out the principles on which the discretion is to be exercised, other than the reference to the requirement that the nature of default, and reasons for default if known, be included in the Form 33 certificate. [ 9 ] However, there is guidance provided in previous decisions of this and other courts. In exercising my discretion, I rely particularly on two decisions of this Court: R. v. Howell , a decision of Justice Harrington, reported as 2008 NLTD 70 ; and R. v. Thomas , a decision of Justice McGrath, reported as 2016 NLTD(G) 56.

From those cases, I discern the following factors as relevant in addition to the nature of and reasons for the default: (

i) Most importantly, the significant public interest in ensuring that the bail system is not undermined, recognizing that the integrity of the bail system must be supported by requiring that an accused person be held to the contract entered into by the posting of a cash

deposit (in this case) in return for release on recognizance; (ii) The financial circumstances of the respondent; (iii) Whether forfeiture is sought as the only penalty or in conjunction with a period of incarceration for the breach of recognizance. [ 10 ] In this case, I am exercising my discretion to determine that the amount of $1000 of the $5000 cash deposit ought to be forfeited.

I do so for the following reasons: [ 11 ] First, as noted, there is a significant societal interest in ensuring that the integrity of the bail system not be undermined by allowing a breach of recognizance to occur without consequence within the context of the conditions on which the recognizance was granted. [ 12 ] Second, I note that there is nothing particularly significant in the financial circumstances of the Respondent that militate in favour of any reduction in those consequences. He is moving to British Columbia and needs money to travel there.

However, he is also receiving assistance from family and his girlfriend with the costs of travel and will reside with family in B.C. His trades certifications render his future employment likely and his financial prospects good. [ 13 ] Third, I do take note of the concession of the Crown that the nature of the default here is at the absolute lowest end of the spectrum for such an offence.

The Respondent was 15 minutes late for the curfew imposed as a condition of release. [ 14 ] Fourth, the Respondent pleaded guilty and served an aggregate of 60 days in custody for the breaches under consideration and for which forfeiture is also sought.

This was a significant punishment for an offence at the absolute lowest end of the spectrum. [ 15 ] Finally, I note that the Respondent did comply with the conditions of his later judicial interim release by this Court pending the disposition of the substantive offences with which he was charged, and by so doing demonstrated his respect for the bail system. disposition [ 16 ] I therefore order pursuant to subsection 771(2) of the Criminal Code that $1000 of the $5000 cash deposit be forfeited and the remainder of $4000 be returned to the Respondent. _____________________________ Daniel M. Boone Justice