R. v. Abbott, 2018 NLSC 116

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Abbott , 2018 NLSC 116 Date : May 23, 2018 Docket : 201701G8239 Her Majesty The Queen v. Nick Abbott Before: Justice Rosalie McGrath Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 25, 2018 Date of Oral Judgment: May 23, 2018

Summary: The Court ordered full forfeiture of cash bail in respect of an offender who committed the offence of possession of cocaine for the purpose of trafficking as well as two breaches of recognizance while on judicial interim release. The offender had not shown cause why there should not be an order for full forfeiture. Appearances:

R. Neil Smith Appearing on behalf of the Federal Crown Trisha L. McCarthy Appearing on behalf of the Provincial Crown Erin K. Breen Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Thomas, 2016 NLTD(G) 56; R. v. Howell, 2008 NLTD 70; R. v. Horvath, 2009 ONCA 732; R. v.Pearson, (SCC), [1992] 3 S.C.R. 665 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] Both the Provincial and Federal Crown ask this court to make an order for full forfeiture of cash bail in the amount of$20,000.00.

This sum was paid into the Provincial Court of Newfoundland and Labrador on January 29, 2016 to secure the judicialinterim release of Nick Abbott. At the time the cash was paid into court, Nick Abbott also signed and deposited with the ProvincialCourt an assignment of cash deposit to his former girlfriend, Megan Hillier. Mr. Abbott was released from custody pending trial on arecognizance with conditions supported by the $20,000.00 cash deposit and two sureties in the amount of $5,000.00 each. The positionof the sureties is not in issue on this application. [2] Mr.

Abbott subsequently breached the terms of his recognizance in November, 2017, resulting in a Provincial Court Judgeendorsing a Certificate of Default in accordance with

section 770 of the Criminal Code. Shortly after the breach, Mr. Abbott pleadedguilty to and was convicted of various charges for which he had been released on the recognizance as well as charges laid at the time ofthe November, 2017 breaches. [3] In accordance with

section 771 of the Criminal Code, this Court fixed a time and place for the hearing of an application forforfeiture of the recognizance and gave notice to Mr. Abbott, Ms. Hillier and both the Federal and Provincial Crown. After hearing fromthe parties and considering the evidence presented at the hearing, I was asked to determine whether Mr. Abbott has shown cause why therecognizance should not be forfeited. background [4] In an information sworn on December 7, 2015, Mr. Abbott was charged with 11 counts in respect of offences alleged to havebeen committed on November 26, 2015.

These charges included trafficking and possession for the purpose of trafficking in cannabismarihuana and cocaine. He was also charged with various weapons related offences and one count of possession of property obtained bycrime. [5] These charges arose from an investigation carried out by the Combined Forces Special Enforcement Unit - Newfoundlandand Labrador (CFSEU-NL). The CFSEU-NL had received confidential informant tips about Mr. Abbott’s participation in drugtrafficking in the Fall of 2015. They conducted surveillance resulting in a plan to arrest Mr. Abbott at a Metro Self Storage facility.

Thatplan was executed on November 26, 2015. In the course of the take down, police discovered Mr. Abbott at the storage facility. He hada hand gun with ammunition and nearby garbage bags contained vacuum sealed marihuana. A search of Mr. Abbott’s storage unit at thefacility also revealed the following: a) 1kg of cocaine; b) 46lbs of marihuana;

c) A prohibited firearm: Luger semi-automatic pistol;

d) The clip for the Luger;

e) .22 calibre ammunition;

f) A second prohibited firearm: Arminius .38 calibre revolver in a Pelican case that also contained several .38 calibre bullets; g) $10,000 cash; h) 2 watches in boxes with the receipts showing they were worth approximately $8,500;

i) A ballistic vest (which might commonly, but not entirely accurately, be called a bullet proof vest). [ 6 ] The vehicle driven by Mr. Abbott was also searched and contained two cell phones, a knife, digital scales with white residue and a box of Ziploc baggies. Inside the Ziploc baggies box, police found two “8-ball” baggies of cocaine, each with a net weight of about 3.5 grams. [ 7 ] Mr. Abbott was detained in custody for 57 full or partial days before being granted bail on January 29, 2016.

As noted above, in order to secure his release, he signed a recognizance with conditions, with bail consisting of a cash deposit of $20,000.00 (the subject of this application) and two sureties in the amount of $5,000.00 each. [ 8 ] Mr. Abbott had no means of legitimate income at the time of the offences but text messages obtained as a result of search warrants for Mr. Abbott’s cell phones indicated that he was involved in street level cocaine and marihuana dealing. [ 9 ] Mr.

Abbott’s bail was changed on August 25, 2017, when his former girlfriend’s mother, who had been an original surety, made application to this Court to be removed. A new surety was substituted for her in the same amount as the original surety. [ 10 ] While still on judicial interim release, on the night of November 11, 2017, Mr. Abbott was observed by Constable Power of the Royal Newfoundland Constabulary near the Cotton Club on Queen Street, in the City of St. John’s, in the Province of Newfoundland and Labrador. When Constable Power became aware that Mr.

Abbott’s recognizance required him to be at his residence by 10pm, he arrested Mr. Abbott. In the search of Mr. Abbott incident to arrest, police seized a Samsung cell phone and approximately an ounce of cocaine, both of which violated express conditions of his recognizance. He was then charged with breaches of his recognizance as well as possession of cocaine for the purpose of trafficking. [ 11 ] Mr.

Abbott had initially elected to proceed to trial in this Court on the charges that were laid in December, 2015 but, after breaching the conditions of his recognizance, he re-elected to Provincial Court. [ 12 ] On November 28, 2017, he pleaded guilty to and was convicted of charges laid in 2015 for possession of drugs for the purpose of trafficking and unlawful possession of a prohibited or restricted firearm as well as charges laid in November, 2017 of the one count of possession of cocaine for the purpose of trafficking and two breaches of recognizance. [ 13 ] Upon entering these convictions, the Provincial Court Judge endorsed a Form 33 Certificate of Default in accordance with

section 770 of the Criminal Code noting that Mr. Abbott pleaded guilty to and was convicted of charges that he did, on or about November 11, 2017, possess cocaine for the purpose of trafficking, breached the recognizance by being out past his 10 o’clock curfew and breached the recognizance by possessing a cell phone. At that time, Mr. Abbott was sentenced to a total term of imprisonment on all charges from 2015 and 2017 of 5 years and 10 months. [ 14 ] Both counsel for the Crown and counsel for Mr. Abbott are in agreement with respect to the facts underlying the offences with which Mr.

Abbott has been charged and convicted. These facts are outlined in an agreed Statement of Facts that was filed with the Provincial Court of Newfoundland and Labrador on November 28, 2017. Where the parties disagree is with respect to whether the entire amount of the cash deposit should be forfeited. In particular, both the Federal and Provincial Crown take the position that Mr. Abbott has not shown cause why any portion of the recognizance should not be forfeited. On the other hand, counsel for Mr. Abbott suggests that a forfeiture of 50% of the cash deposit is fair and just in the circumstances.

ISSUE [ 15 ] The issue to be decided is therefore whether Mr. Abbott has shown cause why all or any portion of the cash bail should not be forfeited. law and analysis [ 16 ] All counsel agree that, on an application for forfeiture of a recognizance with a cash deposit, an assignee has a right to be heard in his or her role as an assignee of bail. However, in accordance with the decision in R. v. Thomas , 2016 NLTD(G) 56, an assignee stands in no better position than the accused person in seeking relief from forfeiture.

As noted at paragraph 30 of that decision, it is evidence regarding the offender’s circumstances, including those surrounding his breach of recognizance, that must be considered on such an application, not that of the assignee. [ 17 ] In this case, Mr. Abbott did not provide either affidavit or viva voce evidence. Instead, he relied upon the affidavit evidence and cross-examination of his former girlfriend, Megan Hillier, the assignee. However, Ms. Hillier is also the mother of Mr.

Abbott’s two-year old daughter, who was born in July of 2015. [ 18 ] Both the Federal and Provincial Crown reiterated that, in determining whether Mr. Abbott has shown cause as to why all or any part of the cash bail should not be forfeited, it is Mr. Abbott’s circumstances that I must consider. One of Mr. Abbott’s circumstances is his obligation as a parent to support his young child. As such, in so far as Ms. Hillier’s evidence pertains to the financial needs of their young child, I am prepared to consider her evidence. [ 19 ] The relevant portions of Ms.

Hillier’s affidavit and evidence on cross-examination that relate to those circumstances indicate

that Mr. Abbott’s daughter lives with and is solely parented by her mother, Megan Hillier. Ms. Hillier was 17 when she became pregnant and 18 when the child was born. Due to her pregnancy, Ms. Hillier did not complete high school but is hoping to go back to the T.I. Brother Murphy Centre to complete her Grade 12 education. She says she can complete this program in one year if she attends school full time from Monday to Friday. Once she returns to school, she will place her child in daycare that is subsidized by the Provincial Government.

Her sole current source of financial support is income support from the Provincial Government and the Federal Child Tax Benefit. She will continue to receive this income support once she returns to school. [ 20 ] Income support has essentially been her daughter’s only source of financial support since she was born as Mr. Abbott was in school at Academy Canada before his incarceration. He cared for his daughter on an equal shared parenting basis prior to his incarceration but did not pay Ms.

Hillier any child support. [ 21 ] The income support received, however, does not include subsidized transportation to bring Ms. Hillier’s daughter to places for social activities or medical appointments. Ms. Hillier has to rely on family, friends or public transportation. [ 22 ] Upon cross-examination, Ms. Hillier says that, if all or any remaining portion of the cash deposit was returned to her, she may buy an inexpensive second hand car as the lack of a vehicle is a significant barrier for she and her daughter.

She says that transportation is becoming more difficult as her daughter gets older. [ 23 ] She also says that the government income support she receives is not sufficient to pay for basic needs, including clothing and other necessities. She says that when she runs short of money she must turn to her family members to assist if they can. She gave evidence that since his incarceration in 2017, Mr. Abbott has been unable to financially support his daughter although his family assists with gifts on special occasions when possible. [ 24 ] However, on cross-examination, Ms.

Hillier acknowledged that she is not sure if the total amount of $1,750.00 per month that she receives from government sources would be clawed back in any manner if she were to receive a return of any portion of the cash deposit. She indicated that, if she has to, she will advise social services of the receipt of the money and if her income support benefits are suspended, that is all she can do. She also suggested that she may place the funds in a college fund that she has set up for her daughter. [ 25 ] In addition to considering the circumstances of Mr.

Abbott’s child and his responsibility to support her, I must also consider other circumstances relevant to Mr. Abbott, including the circumstances relating to the offences giving rise to the breach of the recognizance. Ms. Hillier was unable to provide any evidence of the circumstances surrounding the breaches of the recognizance as she and Mr. Abbott were no longer in a relationship at that time. She says she had only limited knowledge of his activities while he was out on bail. She was aware that her mother had made an application to be removed as a surety for Mr. Abbott but she says she did not know why.

Her only communications with Mr. Abbott at that time were solely centered around her daughter’s care. Ms. Hiller says she was not even aware that Mr. Abbott had pleaded guilty to criminal offences until after he had been sentenced. [ 26 ] Given Ms. Hillier’s limited knowledge of Mr. Abbott’s circumstances while out on bail and those surrounding his breaches of recognizance, I am left with the facts set out in the agreed statement of facts filed with the Provincial Court in November, 2017.

While the breaches of being out past curfew and possession of a cell phone are more minor breaches that could weigh in favor of granting some relief from forfeiture, Mr. Abbott also committed a separate criminal offence of possession of cocaine for the purpose of trafficking, one of the same offences for which he had been released on the recognizance. Possession of a hard drug for the purpose of trafficking is a serious offence. [ 27 ] In considering Mr. Abbott’s circumstances, I can also consider his criminal record. In addition to the offences for which he was convicted and sentenced in November, 2017, Mr.

Abbott has prior youth court convictions for assault and failure to comply with a sentence or disposition. As Mr. Abbott is only 21 years old (19 at the time he was charged with the 2015 offences) the lack of any prior adult convictions has little impact upon my exercise of discretion. [ 28 ] It is also relevant to consider evidence of the source of the $20,000.00 cash deposit to the extent it may show the impact a forfeiture of any cash amount would have on Mr. Abbott. In this case, Ms. Hillier gave sworn evidence that it was Mr.

Abbott’s father, Glen Abbott, who gave her the $20,000.00 cash to deposit at the Provincial Court. It was her understanding from Mr. Glen Abbott that he solicited donations from others to come up with these funds. In her Affidavit, Ms. Hillier indicated that the donations came from family members on both her side and Mr. Abbott’s side, as well as friends. On cross-examination, she acknowledged that the family donations from her side consisted of donations from her sister and step-father but she was not sure of the amount.

She said that her understanding from Glen Abbott was that the persons who contributed money were aware that they might never get their money back but have indicated that, if the money is returned, it should be used to benefit Mr. Abbott and Ms. Hillier’s child. [ 29 ] Ms. Hillier further indicated that, at the time she deposited the funds with the Provincial Court, she was not aware that Nick Abbott had assigned the funds to her. She had no idea any amount that was not forfeited would be returned to her. She assumed that any funds not forfeited would be returned to Nick Abbott.

She only became aware of the assignment of cash deposit upon receiving notice of this application. She said she also recently had a conversation with Glen Abbott who told her that all the donors knew and were okay with the money going to her to help her raise her child. I note that these statements by Glen Abbott are hearsay. However, whether the donors are content to have the funds go to Ms. Hillier has little relevance to my determination of this matter as it is Ms. Hillier who has the legal entitlement pursuant to the assignment to receive any amount of the cash deposit that is not forfeited.

I have no evidence that she will pass that money along to others. If she were to do so, I expect she could be in jeopardy of income support she receives being clawed back by the payment of funds to her from this Court. [ 30 ] In taking all of the above factors into account, I have also considered case law provided by counsel that establishes principles governing the exercise of my discretion pursuant to subsection 771(1) of the Criminal Code . [ 31 ] Harrington, J, who was then sitting as a Justice of this Court, in R. v.

Howell , 2008 NLTD 70 , noted the broad discretion this Court exercises in determining whether to order all or part of cash bail to be forfeited. In that case, he considered the following factors in exercising his discretion to forfeit half of a $8,000.00 bail;

1) The financial circumstances of the accused, his partner and the children under their care; 2) The mischief of not enforcing the terms of the bail by some degree of forfeiture; and 3) The fact that an accused is sentenced to a period of incarceration directly associated with the breach of the recognizance. [32] With respect to the first factor, I have sympathy for Ms. Hillier and her young child. She is a single mother who did not finishhigh school due to a pregnancy.

She and her two year old daughter have been subsisting on government income support with nofinancial contribution from the child’s father. [33] With respect to the second factor from Howell, ie., the mischief of not enforcing the terms of bail, counsel for the FederalCrown refers to the following comments on the objectives of the forfeiture of bail at paragraph 44 of Thomas: However, punishment is not the only objective of forfeiture of bail. As noted above, if courts do not order forfeiture of bail for a breachof a recognizance, this defeats the "pull of bail".

This has the potential to undermine the objectives of the bail system. By putting up acash deposit, an accused is entering into a contract in which he deposits money to support his promise that he will abide by the terms ofhis release. If he does not do so, he can expect to be found in breach of his contract and forfeit the sum deposited in addition to beingcharged and punished for the breach. [34] The importance of the “pull of bail” was explained in the Ontario Court of Appeal decision in R. v. Horvath, 2009 ONCA 732.

At paragraph 40 of that decision, Rosenberg, JA stated as follows: For the purposes of this case, the most important point that comes from the English cases is what is referred to as the "pull of bail". In exparte Lever, at pp. 38 & 41, Butler-Sloss and Hoffman L.J.J. referred with approval to the following statement from Lord Widgery C.J.in R. v. Southampton Justices ex parte Corker (1976), 120 S.J. 214, as quoted from the full transcript contained in R. v.

UxbridgeJustices, ex parte Heward-Mills, [1983] 1 All E.R. 530, at p. 532: The real pull of bail, the real effective force that it exerts, is that it may cause the offender to attend his trial rather than subject hisnearest and dearest who has gone surety for him to undue pain and discomfort. [35] While the matter before me involves forfeiture of a cash deposit as opposed to the two sureties, the fact that Mr.

Abbott riskedhaving the sum of $20,000.00 forfeited, thereby rendering the mother of his child unable to enforce the assignment, should have exertedconsiderable moral pressure on him not to breach the terms of his recognizance. The pull of bail should therefore have beenconsiderable. [36] Both Crown counsel say that this is a classic case where the presumption of full forfeiture, which is at the heart of the conceptof the pull of bail, should be enforced. In this matter, the assignee knew nothing about what Mr.

Abbott was doing while out on bail and,in fact, was not even aware that she had an assignment of funds at risk should Mr. Abbott not abide by the terms of his release. Counselfor the Provincial Crown says that, in these circumstances, an order for anything other than full forfeiture would result in a windfall tothe assignee. It was never intended that the Court exercise its discretion to achieve that result. [37] On the other hand, counsel for Mr. Abbott says that it is not a windfall for Ms. Hillier as the funds will be used for the benefitof Mr. Abbott’s young child. How Ms.

Hillier’s receipt of any funds that are not subject to forfeiture is a matter to be decided by theProvincial Government Department administering the income support program. Counsel for Mr. Abbott says that the public would notlose faith in the justice system if the funds that were not forfeited benefited the minor child of an offender. [38] With respect to the third factor from Howell, ie., the sentence imposed for the breach of recognizance, counsel for Mr.

Abbottrecognizes that the charges for which he was released on a recognizance were serious offences and that the drug offence committed whileon bail was not trivial in nature. However, she notes that Mr. Abbott received significant sentences for the drug offences in addition to30- day concurrent sentences for each of the two more minor breaches. [39] Counsel for Mr. Abbott says that Mr. Abbott’s circumstances are close to that considered by Harrington, J. in Howell. In thatcase, Mr. Howell had committed further criminal offences while out on bail. He also had a history of breaching conditions ofrecognizances.

In this case, Mr. Abbott committed a drug offence while on bail in addition to failure to comply with specific conditionsof his recognizance. He also has a prior conviction as a youth for breach of a condition of his sentence. As well, similar to Howell, Mr.Abbott was released on a recognizance for a significant period of time, more than 22 months, without any breach. [40] However, in Howell, the offender was actually living with his partner and children and his income was supporting them. Theaccused himself deposited the cash.

It was therefore his own funds that would have otherwise been available to support the mother ofhis child and his children that was going to be forfeited. As well, the two offences giving rise to the charges for which Mr. Howellobtained judicial interim release were simple possession of controlled substances as opposed to possession for the purpose of trafficking. [41] Counsel for the Federal Crown refers to trafficking in drugs as being a business built on criminal activity. In doing so, he refersto the Supreme Court of Canada decision in R. v.

Pearson, (SCC), [1992] 3 S.C.R. 665, in which the Court held that oneof the objectives of bail is to discourage continuing criminal behaviour. At paragraph 63, the Court states as follows: … By contrast, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often abusiness and a way of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behaviour even after arrestand release on bail. In these circumstances, the normal process of arrest and bail will normally not be effective in bringing an end tocriminal behaviour.

Special bail rules are required in order to establish a bail system which maintains the accused's right to pre-trialrelease while discouraging continuing criminal activity.

[ 42 ] The Crown suggests that the circumstances of Mr. Abbott’s arrest and conviction on drug trafficking charges while out on bail indicate that Mr. Abbott was doing exactly what the bail system is intended to discourage; ie, he was continuing to engage in the same business of drug trafficking.

To allow him to have money returned from this elicit business runs afoul of the objectives of the system of bail. [ 43 ] I am in general agreement with the above statements regarding the need for the bail system to discourage criminal behavior but note that I do not have any evidence on which to make a finding on a balance of probabilities that the $20,000.00 cash deposit came from an illicit drug business. However, the evidence does allow me to make a finding that the $20,000.00 deposited did not come from any legitimate income of Mr. Nick Abbott’s that would have been available to support his child.

The evidence of Ms. Hillier is that it is her understanding that Mr. Glen Abbott solicited donations to come up with this deposit. Further, it was Ms. Hillier’s understanding that, at the time the donations were made, the donors accepted that the funds could be forfeited. No evidence was provided from either Nick Abbott or Glen Abbott to support Ms. Hillier’s understanding. [ 44 ] Mr. Abbott committed a serious drug offence while released on bail (one of the same charges for which he was released pending trial) as well as more minor breaches for which he was sentenced to a period of incarceration.

The funds deposited to secure his release were not his own legitimate funds nor was there evidence that these were funds he had promised to repay. Further, Ms. Hillier was not even aware she was an assignee or that these were funds that could potentially benefit her child. Mr. Abbott has also not provided any evidence of his own or from his father to confirm the source of the funds or the original intended use of the funds if they were not forfeited. While Ms. Hillier, as a single mother of Mr. Abbott’s child, is a sympathetic assignee, that is not a sufficient reason to not order forfeiture.

Further, even if I were to exercise my discretion to order only partial forfeiture, I query whether the forfeiture of the funds would in any way ultimately benefit Mr. Abbott’s child if government learns of this release of funds to Ms. Hillier. [ 45 ] In my view, it would not meet the objectives of the bail system to not order full forfeiture in these circumstances. Mr. Abbott has not shown cause on a balance of probabilities why an order of full forfeiture should not be made.

SUMMARY AND DISPOSITION [ 46 ] For the reasons outlined above, I order under subsection 771(2) of the Criminal Code that the entire amount of the $20,000.00 cash bail be forfeited. _____________________________ Rosalie McGrath Justice