R. v. Lane, 2019 BCPC 161

Citation: R. v. Lane 2019 BCPC 161 Date: 20190716 File No: 20714 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JARROD CREE LANE RULING ON APPLICATION OF THE HONOURABLE JUDGE D.M. McKIMM Counsel for the Crown: P. Cheeseman Counsel for the Accused: J. Mills Place of Hearing: Colwood , B.C. Date of Hearing: June 28, 2019 Date of Judgment: July 16, 2019 FACTS [ 1 ] On July 19, 2018, Mr. Lane broke into a recreational vehicle parked in a local tourist destination and stole the property of the occupants. He was charged with break and enter, as well as a possession of a number of stolen property items. He was also charged

with theft of property and defrauding MasterCard of monies. The police arrested Mr. Lane later that day without warrant and he remained in custody prior to a judicial interim release hearing that commenced on August 23, 2018 and continued on September 4, 2018. [ 2 ] At the judicial interim release hearing the crown sought Mr. Lane’s detention on the secondary and tertiary grounds citing the strength of the crown’s case and, most particularly, Mr. Lane’s significant criminal history including prior federal sentences for break and enter. Mr.

Lane argued for his release on the grounds that: he had stable housing and employment; was entitled to the presumption of innocence; could make a substantial cash deposit to secure his release; and he specifically agreed that he would be bound by a house arrest condition requiring him to be inside his residence 24 hours a day, seven days a week, subject to certain very limited exceptions. After consideration, the court ordered Mr. Lane released on a recognizance of bail in the amount of $5,000 without a surety but with a deposit in that amount.

There were nine conditions on his recognizance: 1. keep the peace and be of good behaviour; 2. not to go to the residence, school, or work place of the victim; 3. report to his bail supervisor and advise him or her of his residential address and phone number; 4. report to his bail supervisor within two days of his release from custody 5. obey a 24 hour house arrest condition; 6. not possess or consume alcohol or drugs without a prescription; 7. not possess any weapons; 8. not possess any housebreaking instruments; and 9. not possess any false identification. [ 3 ] On September 23, 2018, Mr.

Lane perfected his bail by depositing $5,000 with the Clerk of the Court. [ 4 ] On February 9, 2019, Mr. Lane breached the terms of his release order by not being inside his residence when the police checked. He breached his release order again on February 14, 2019 when he failed to be in his residence when the police checked at 1335 hrs. A two count information was sworn against Mr. Lane following his arrest on February 15, 2019. On March 14, 2019, Mr. Lane pled guilty to both of those breach allegations and was sentenced to 21 days in custody concurrent on each charge.

At the time of his guilty plea, the recognizance of bail was marked for estreatment pursuant to the provisions of section 770(1) of the Criminal Code . [ 5 ] On May 31, 2019, in advance of the scheduled trial date, Mr. Lane pled guilty to the initial property crimes that brought him before the court and received a sentence of 550 days in custody. [ 6 ] Notice was provided to Mr. Lane advising him of the date and time set for a hearing to determine whether some or all of the cash deposited should be forfeited pursuant to section 771(1).

At that hearing, no evidence was led nor excuse provided nor even explanation given with respect to why Mr. Lane had deliberately breached the terms of his bail. Position of the Parties [ 7 ] Crown says that Mr. Lane deliberately breached the strict conditions of his bail on two occasions. He did so wilfully as is acknowledged by his guilty pleas and was well aware, as a result of his extensive criminal record, of the consequences of breaching bail. He says that the starting position for the analysis should assume that the entire sum is forfeited to the crown subject to Mr.

Lane showing a significant reason why it ought not to be forfeit. [ 8 ] Mr. Lane submits that the ends of justice were never defeated nor delayed as a result of his breaches. He says that there is no evidence that the breach of the accused’s conditions undermined the foundation for the bail order, that is, to ensure the protection of the public and to protect the integrity of the justice system as that concept applies to the tertiary ground. He says that because of that, all of the funds should be released, but further they ought to be released to Mr. Lane’s lawyer “in trust”.

Analysis [ 9 ] The Criminal Code provides a specific process by which bail monies might be forfeited to the crown in the event of a breach of a bail order.

Section 770 provides: Default to be endorsed 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.

Transmission to clerk of court

(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. Certificate is evidence

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

(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. R.S., 1985, c. C-46, s. 770 ; R.S., 1985, c. 27 (1st Supp.), s. 203 1997, c. 18, s. 108 . [ 10 ] On March 14, 2019, my brother Judge MacCarthy, at the request of the crown and pursuant to section 770(1) , noted on the recognizance that the accused had not complied with a condition of his recognizance and, as a result, the ends of justice are defeated.

In submissions before this Court, counsel agreed that Mr. Lane consented to the marking of the bail monies for estreatment, but asserted that marking the funds for estreatment is not an agreement that any or all of the funds should be forfeited. [ 11 ] Mr. Lane received notice of a hearing pursuant to

section 771 of the Criminal Code . This

section provides: Proceedings in case of default 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. Order of judge

(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. Judgment debtors of the Crown

(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. Order may be filed

(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. Transfer of deposit

(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. R.S., 1985, c. C-46, s. 771 ; R.S., 1985, c. 27 (1st Supp.), s. 168; 1994, c. 44, s. 78; 1999, c. 5, s. 43 . [ 12 ] No guidance is given in the Criminal Code with respect to how the forfeiture hearing is to be conducted or the principles that apply in exercising the court’s discretion with respect to forfeiture.

The authorities provided make it clear that the court must exercise its discretion keeping in mind the fundamental principles of bail. The authorities are sparse with respect to the specific factors that the court must consider in deciding how much, if any, of a cash deposit ought to be forfeited to the crown.

All of the authorities provided speak to the obligations of a surety with respect to how much he or she ought to be required to pay for the breach of the order committed by an accused person. [ 13 ] In the case of a surety being asked to pay for the breach of the accused person, the decision of Canada (Attorney General) v. Nayally, [2012] N.W.T.J. 61 is helpful. In that case, Mr. Nayally was charged with impaired driving and refusing to provide a breath sample. He was ordered and released on a $3,000 cash deposit with two sureties in the amount of $1,000 each.

Shortly after his release, he was again apprehended for impaired driving in breach of the terms of his recognizance. The deposit money was marked for estreatment and the crown sought to collect on the promises of the two sureties for $1,000 each. In considering whether or not to order forfeiture of the cash deposit or judgments against the sureties, Mr. Justice Charbonneau wrote:

27 A forfeiture hearing is an opportunity for the person who was bound by the Recognizance and the sureties to be relieved fromforfeiture. The onus is on these persons to show that they should be relieved from forfeiture. Trotter, The Law of Bail in Canada, 3rdedition, p. 13-15; R. v. Horvarth, para. 27; R. v. Alokee, para. 24. 28 In Horvarth, one of the issues was whether the degree of fault or diligence of the surety is a relevant factor to consider on a forfeitureapplication. The Court concluded that it is. R. v. Horvarth, paras 28-50.

The Court went on to give examples of other factors that couldbe relevant: [51] (...) 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 inexercising 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; thecircumstances under which the surety entered into the recognizance, especially whether there was any duress or coercion; the surety'sdiligence; the surety's means; any significant change in the surety's financial position after the recognizance was entered into andespecially after the breach; the surety's post-breach conduct, especially attempts to assist the authorities in locating the accused; and therelationship between the accused and the surety 29 I would add to this that the nature of the breach is also a factor.

If the breach has serious consequences, it is all the more reason forthe Court to be concerned about the bail system being undermined. For example, if a person who is bound by a recognizance fails toappear at their trial, such that resources are wasted and witnesses are inconvenienced, the concern about upholding the bail processthrough forfeiture is highlighted. The same is true if the breach is associated with further criminal activity. 30 Here, the breach was not a failure to attend Court.

It did not result in any inconvenience to witnesses or to a delay in the proceedings.However, it was committed a relatively short time after the Recognizance was entered into. It also led to an incident that required thepolice being called, as Mr. Nayally was convicted for having resisted arrest on the same day as the day he consumed alcohol. 31 In my view, the central consideration in this matter is the importance of upholding the bail system. This is sometimes referred to asupholding the "pull of bail".

It must be made clear to anyone offering a cash deposit in support of an application for release that there willbe consequences in the event that the conditions are not complied with, beyond the possibility of facing a breach charge. The sameapplies to the sureties: it must be made clear to anyone agreeing to act as a surety that it is a serious commitment, and one that canpotentially carry serious consequences in the event of a breach.

Without such consequences, having accused persons enter intoRecognizances and having people sign on to act as sureties is meaningless, and seriously undermines the bail system as a whole. [14] The English decisions on the question of whether and to what amount a surety ought to be held responsible for the promise theymake to the court began as a general inquiry as to the efforts made by the surety to ensure compliance with the bail order. In R. v.Southhampton Justices, ex parte Green (1973), [1975] 2 All E.R.1073 (C.A.), Lord Denning, Master of the Rolls, wrote: By what principles are the Justices to be guided?

They ought to, I think, to consider to what extent the surety was at fault. If he/sheconnived at the disappearance of the accused man, or aided it or abetted it, it would be proper to forfeit the whole of the sum if he/shewas wanting and due diligence to secure his appearance, it might be proper to forfeit the whole or a substantial part of it, depending onthe degree of fault.

If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, itmight be proper to remit entirely. [15] This relatively liberal test did not withstand further judicial consideration and by 1996 the law was clear that a simple lack ofdiligence was not sufficient to relieve a surety of his or her responsibility. Indeed it was found that it was this very possibility of liability,in spite of reasonable diligence being shown, was the very moral suasion that the court relied on to ensure that bail orders are followed. See: R. v.

Maidstone Crown Court, ex parte Lever (1994), [1996] 1 Cr. App.R.524 (C.A). [16] In British Columbia, our Court of Appeal has ruled that the moral pressure created by the meaningful threat of forfeiture of bailmoney must take primacy in the exercise of discretion as to whether or not to forfeit bail monies or compel sureties to make good on theirfinancial commitment.

Failing to weigh properly that objective would permit an accused or surety to avoid the financial risk inherent in posting security for bail,thereby undermining the “pull of bail” as a means of ensuring the accused good behaviour on judicial interim release. R. v. Flanders, [2015] B.C.J. No 143 at paragraph 22 [17] In the earlier decision of United States v. Le, 2010 BCSC 1653 , 2010 B.C.S.C 1653, cited with approval in R. v.Flanders above, Madam Justice Maisonville writes: 30 Lord Denning's comments noted above are that the Court should be guided by the extent the surety is at fault.

However, as noted, notall courts have been guided by Lord Denning's principles. 31 The reasons of Lord Denning have been departed from to such an extent that in Maidstone Crown Court, ex parte Lever, Hoffman L.J. held: These dicta, which give the impression that the surety's degree of culpability is the guiding principle in the exercise of the discretion,have had to be explained away so often that I think there should be a ban on their future citation (at 41) 32 Hoffman L.J. noted there should be a strict approach of the courts respecting a surety's obligation: It follows that in one sense the system has unfairness built into it.

It may result in persons entirely innocent having to suffer on accountof the wrongdoing of another. The courts rely upon the moral pressure which this prospect should apply to the mind of the accused. Butthe pressure would evaporate if judges were not willing, as a general rule, to harden their hearts against a plea of lack of culpability whenit turns out that the surety's trust in the accused was misplaced. (at 41)

Accordingly the Court of Appeal ordered, in respect of the two sureties, GBP 16,000 of GBP 19,000 and GBP 35,000 of GBP 40,000, forfeited. 33 Justice Trotter in The Law of Bail in Canada notes the dichotomy between the approach of the courts in England, where the courts have resiled from the decision of Lord Denning in R. v. Southampton Justices ex parte Green and the Canadian approach, where they have not. Trotter J. argues against Lord Denning's approach examining the culpability and circumstances of the sureties.

He writes, however, of adopting the approach of the Court of Appeal in England at 481 of his work: The rigorous approach to forfeiture underscores the serious nature of the obligation undertaken. As explained in R. v. Maidstone Crown Court ex parte Lever , it is also faithful to the results hoped to be achieved through the surety relationship. An approach based on the fault or diligence of the surety neglects the effect this might have on the accused person.

An accused with diligent and responsible sureties could abscond at the last minute knowing that his/her surety's (perhaps family members or other close relations) will be relieved from forfeiture by having done their best. While an approach which is completely impervious to claims of undue hardship by sureties would be harsh, it should be the exceptional case in which the court invokes its power to relieve against forfeiture. Individuals will be required to assess their willingness to act as surety in light of this stringent, yet clear position. 34 I agree.

The rigorous approach must be the starting point in entreatment proceedings. The accused must be aware that there will be probable consequences to a surety in the form of forfeiture should there be any departure from the bail conditions. 35 I find that the moral suasion or pressure alternatively referred to as the "pull of bail" is of primary importance when considering what the appropriate test is on a forfeiture application. While the starting point is the rigorous approach, it remains a matter of great discretion as to whether to grant or refuse the application or make any order with respect to the forfeiture.

I am mindful of the words of Rosenberg J.A. in Horvath , that: [T]he court must not be so inflexible in their exercise of discretion that responsible sureties are discouraged from coming forward. That could well be the case if the surety's due diligence were considered to be irrelevant. In other words, the focus on the forfeiture application cannot be solely on the impact of forfeiture on the accused.

Sureties are expected to supervise the accused; it is unreasonable and unfair to completely ignore their efforts on a forfeiture hearing. (at para. 48). 36 The onus will be on the surety to seek the relief from forfeiture in reliance on the following conditions outlined above from Nguyen , and noted as well by Justice Trotter in The Law of Bail in Canada . 37 While finding that all factors must be considered by the court in considering an order for a request to forfeit the entire amount of a surety, I find that not all factors will be of equal relevancy and that the particular circumstances of each case must be taken into account, including the amount, the circumstances in which the surety was entered, the personal circumstances of the surety, the present ability of the surety, means and ability of the surety, including whether there was a significant change to their position before and after the breach of recognizance, and the surety's post-breach conduct, including whether there were any attempts to render the accused. [ 18 ] The issue is slightly different, however, with respect to forfeiture of cash bail deposited by the accused.

I agree that the moral suasion brought to bear by the very real risk that the cash deposited may well be forfeited to the crown must maintain primacy. It is also clear that the burden falls to the accused to show cause as to why he or she should be relieved from forfeiture. See also R. v. Pawar, [2012] B.C.J. No. 3088 . [ 19 ] In the case of an accused person seeking return of bail moneys following a breach of their recognizance an additional consideration exists. The moral suasion of bail is heightened in the case of the accused by the risk of prosecution and punishment for breaching a bail order.

This risk is not at stake when considering the liability of a surety as opposed to an accused person. [ 20 ] Applying the analysis to the case of an accused person seeking the return of his or her deposit following factors seem most apposite are: 1. the amount of the recognizance; 2. the seriousness of the violation of the bail order; 3. whether violation of the bail order went to the core of the aims the conditions were designed to protect, for example was the violation a breach of a no contact order designed to protect a vulnerable witness; 4. the nature and amount of the delay to the administration of justice, was the matter able to proceed to trial and to what extent were state resources wasted as a result of the breach of the bail order; 5. any excuse or explanation offered by the accused with respect to the reasons for the breach of the terms the recognizance; and 6. acceptance by the accused of responsibility for the breach by way of a guilty plea to a separate criminal offence for breaching the court’s orders. [ 21 ] We are reminded in R. v.

Antic, [2017] 1.S.C.R. 509 that bail conditions are to be imposed only as necessary to meet the stated goals of

section 515 of the Criminal Code : Terms of release imposed under s. 515(4) may "only be imposed to the extent that they are necessary" to address concerns related to the statutory criteria for detention and to ensure that the accused can be released. They must not be imposed to change an accused person's behaviour or to punish an accused person. R. v. Antic, [2017] 1 SCR 509 , 2017 SCC 27 , [2017] 1 RCS 509 , [2017] SCJ No 27 , [2017] ACS No 27

Application of the law to the case at bar [ 22 ] In this instance, the crown sought the detention of the accused on the secondary and tertiary grounds. They argued that there was a substantial likelihood that, if released at all, or at a minimum if released without significant conditions restraining his liberty, there is a substantial likelihood that he would commit further offences. This was based primarily on the accused’s significant criminal history, together with the apparent strength of the crown’s case. They further argued that release of the accused brought the administration of justice into disrepute.

While obviously the court was not persuaded to detain the accused, it did agree that release was possible only on strict conditions with a significant cash deposit. This form or release is really a release of last resort being as it is at the very top of the “forms of release ladder” as defined in Antic : 44 To interpret s. 515(2)(e), it is first necessary to understand the ladder principle. As I explained above, the ladder principle requires that the form of release imposed on an accused be no more onerous than necessary. This principle is set out in s. 515(1) to (3) of the Code .

Although these provisions are more strictly applicable in a contested bail hearing, they also provide the legal backdrop that should guide plans of release to which the parties consent. 45 Section 515(1) requires that, where an accused is charged with an offence other than the ones listed in s. 469 of the Code , "the accused be released on his giving an undertaking without conditions". However, s. 515(1) affords the prosecutor an opportunity to show why the accused should either be detained or be released under more onerous forms of release.

The Code also requires that accused persons charged with any of the offences listed in s. 515(6) be detained unless they justify their release. 46 Aside from the release of an accused under s. 515(1) on his or her giving an undertaking without conditions, s. 515(2) sets out the other permissible forms of pre-trial release:

(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released (

a) on his giving an undertaking with such conditions as the justice directs; (

b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security; (

c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security; (

d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or (

e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs. Each provision, moving from s. 515(2)(

a) to s. 515(2)(e), involves more burdensome conditions of release for the accused than the one before it. These forms of release, coupled with the specific release terms a justice or a judge may impose under s. 515(4), have significant potential to impinge on an accused person's liberty. 47 The ladder principle is codified in s. 515(3), which prohibits a justice or a judge from imposing a more onerous form of release unless the Crown shows why a less onerous form is inappropriate: "The justice shall not make an order under any of paragraphs (2)(

b) to (

e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made." 48 Parliament included cash in the most onerous "rungs" of the ladder for added flexibility, not because cash is more effective than other release conditions in ensuring compliance with bail terms. A recognizance creates the same financial incentive for the accused to comply with the terms of release as does a cash deposit. One does not mitigate the flight or safety risk posed by an accused person more effectively than the other: Anoussis , at para. 22.

The central purpose of the Bail Reform Act was to avoid the harsh effects on accused persons of requiring cash deposits where other avenues of release are available. As the authors of the Ouimet Report recognized, cash bail provides added flexibility by offering an alternative form of release where a meaningful recognizance cannot be given and a surety cannot be obtained: pp. 106-7. 49 Therefore, where a monetary condition of release is necessary and a satisfactory personal recognizance or recognizance with sureties can be obtained, a justice or a judge cannot impose cash bail.

A pledge and a deposit perform the same function: the accused or the surety may lose his or her money if the accused person breaches the terms of [page532] bail. Release with a pledge of money thus has the same coercive power as release with a cash deposit. R. v. Antic , [2017] 1 SCR 509 , 2017 SCC 27 , [2017] 1 RCS 509 , [2017] SCJ No 27 , [2017] ACS no 27 [ 23 ] Mr. Lane’s breaches were breaches of conditions that are crafted to ensure good behaviour.

He was bound by and agreed to a house arrest condition because being constantly in one residence would obviously prevent him from committing further property offences and alleviate the risks for which the crown expressed concern. On the other hand, there is no evidence that the breach was a separate instance of criminal behaviour, such as further property crime, while on bail. Nor was the breach one that interfered with the administration of justice nor affected the rights nor safety of the victims of the offence or the public at large.

The trial was not delayed, nor were state resources expended needlessly as a result of the failure of Mr. Lane to attend court as required. [ 24 ] Furthermore, Mr. Lane accepted responsibility for breaching the court order and was sentenced to a period in custody as a result

of that behaviour. It is inappropriate to punish Mr. Lane further by way of a forfeiture order given that he is already been sanctioned for breaching the order. On the other hand, failing to recognize the additional component of his behaviour, that he was on cash bail time of the offending behaviour, does not adequately address the need to have bail orders respected.

In order that bail orders create the moral suasion that accused persons attend court and comply with the conditions of their bail orders, it is appropriate that as well that some of the cash bail also be forfeited on top of the sentence imposed for breach of the order. [ 25 ] In the case at bar, justice was not denied nor delayed. The accused was punished for his failure to comply with a court order and served a global sentence for that offending behaviour. In these circumstances, it is certainly not appropriate that the entirety of the cash bail be forfeited. I do agree with the decision in R. v.

Pawar, supra, that a presumption of forfeiture of the entire amount would be appropriate if there was no separate prosecution for the breach of the bail order, but in the case of a separate successful prosecution and punishment for the breach the result would be a greatly reduced forfeiture. [ 26 ] In Canada (Attorney General) v. Nayally , supra, the accused was caught driving while impaired days after his release on cash bail in the amount of $3,000. He pled guilty and was sentenced to gaol for both the charge breach of recognizance and the new charge of impaired driving.

In that case, the accused created the very public danger, impaired driving, against which the order was crafted to protect. In those circumstances, forfeiture of $2,000 of the $3,000 bail deposit was appropriate. [ 27 ] I have considered in particular that no further danger to the public was created by Mr. Lane breaching his recognizance and that he was sentenced separately for breaching his order. In my view, the appropriate exercise of discretion is to order that $1,000 of the recognizance monies be forfeited to the crown.

CONCLUSION [ 28 ] There will be an order that the sum of $1,000 is forfeited and that the balance of $4,000 be returned to Mr. Lane. [ 29 ] Counsel for the accused seeks that the balance of the bail funds be remitted to offices of counsel for Mr. Lane “in trust”. The bail monies were never assigned to counsel for Mr. Lane. To the contrary, they were assigned to a third party who has taken no position in this application. There is no authority for the proposition that bail funds, without an assignment, ought to be remitted to a third party, whether in trust or otherwise. Indeed in dicta found in R. v.

Flanders above at paragraph 16, the Court of Appeal opined that it was indeed error to consider the good works of counsel in making a determination as to whether bail monies ought to be forfeited or not. There was no reason indicated on the record as to why funds needed to go to counsel. The funds having been properly assigned to a third party, that third party is at liberty to apply to have them released to him directly. _________________________________ The Honourable Judge D.M. McKimm Provincial Court of British Columbia