R. v. West, 2020 BCPC 247

Citation: R. v. West 2020 BCPC 247 Date: 20201222 File Nos: 16260-1; 16264-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN DARCY WEST RULING ON APPLICATION OF THE HONOURABLE JUDGE R. McQUILLAN Counsel for the Crown: J. Langlois-Sadubin Appearing on his own behalf: J. West Place of Hearing: Powell River , B.C. Date of Hearing: November 24, 2020 Date of Judgment: December 22, 2020 [ 1 ] The Crown is applying for forfeiture of bail moneys deposited with the Court on behalf of the accused, John Darcy West. The sum of $5000.00 was deposited pursuant to a recognizance of bail made by the Honourable Judge Wingham on May 9, 2019. The Crown

says that because Mr. West has breached a number of the conditions of that recognizance (and a subsequent recognizance connected to the same bail money), the $5000.00 should be forfeited to the Crown. [ 2 ] Mr. West opposes the application and seeks return of funds to him or his assignee, or in the alternative, return of a portion of those funds. Background [ 3 ] On December 20, 2018, Mr. West was arrested on an allegation of breach of a Conditional Sentence Order.

A search incidental to his arrest revealed him to be in possession of significant quantities of controlled drugs, including methamphetamine, cocaine and fentanyl. He was also in possession of over $2000 in cash. [ 4 ] Mr. West was released by the police after his arrest. The charges in relation to this incident were not laid until April 25, 2019, at which time he was charged on information number 16260-1 with three counts of possession of controlled substances for the purpose of trafficking. After this information was sworn, Mr.

West was arrested on those charges on May 3, 2019. [ 5 ] Upon his arrest on May 3, Mr. West was again found to be in possession of controlled substances. A further information, 16264- 1, was sworn on May 9, 2019 alleging two counts of possession of controlled substances for the purpose of trafficking. With respect to that latter information, he ultimately pled guilty in March 2020 to the lesser included offence of simple possession. [ 6 ] Following his arrest on May 3, 2019, the Crown sought Mr. West’s detention.

Following a judicial interim release hearing, on May 9, 2019 he was released by Judge Wingham on a recognizance with a $5000 cash deposit. The recognizance included a number of conditions, including a curfew and prohibitions on the possession of weapons and controlled substances. It is that $5000 cash bail that is in issue in this hearing. [ 7 ] On August 19, 2019, an incident occurred in Powell River that resulted in Mr. West being charged with assaulting his domestic partner, Ms. Wolter. The matter again came before Judge Wingham for a bail hearing on October 10, 2019, at which time the Crown again sought Mr.

West’s detention. Judge Wingham again released Mr. West at the conclusion of the hearing, noting that the prosecution of the assault charge might pose some difficulties in light of the fact that the complainant was not cooperative. He also noted that Mr. West did not appear to be in breach of his earlier bail conditions except perhaps by breaching the condition that he keep the peace and be of good behaviour. Judge Wingham did however, add some conditions to the earlier release order, including a condition that he have limited contact with Ms.

Wolter, and that he not go to Powell River, except to attend scheduled court appearances. [ 8 ] Approximately six weeks after that release by Judge Wingham, on November 22, 2019 police were called to a residence in Powell River to deal with an altercation. When police arrived, Ms. Wolter was seen leaving the residence. She was detained but denied that Mr. West had been with her. Eventually Mr. West emerged from the residence and was arrested. A search of the residence led to the discovery of a number of firearms, controlled substances, and multiple cell phones. That led to Mr.

West being charged with 11 new offences, including three counts of possession for the purpose of trafficking, four firearms offences and four counts of breaching his release order. The breaches relate to his possession of weapons, possession of controlled substances, his presence in Powell River, and his contact with Ms. Wolter. [ 9 ] Mr. West remained in custody for several months following his arrest on November 22, 2019. When the matter eventually proceeded to a bail hearing, Mr. West was detained on the new charges by the Honourable Judge Blake on April 14, 2020.

His bail was also revoked on information 16260-1 as he had breached the release order, as noted by Judge Blake, in “spectacular fashion”. Judge Blake noted that Mr. West seemed to have paid no regard to the release order at all, nor indeed to the warnings that Judge Wingham had given to him on both occasions when he released him on bail. The fact that there was a cash deposit attached to his recognizance likewise seemed to have had no impact on his conduct. At that time, the $5000 bail moneys were marked for estreatment.

Law [ 10 ] The Crown’s application for forfeiture of the $5000 bail deposit is governed by s. 771 of the Criminal Code . That

section provides a mechanism for such an application to be heard by the Court where various conditions are met. The formalities of that

section appear to have been complied with for this hearing to occur. [ 11 ] In accordance with subsection 771(1)(b), the purpose of the hearing is to “show cause” why the recognizance should not be forfeited to the Crown. The language of the

section in effect creates a reverse onus as it places the burden on the accused person to justify why the funds should not be forfeited to the Crown. [ 12 ] Subsection 771(2) further provides:

(2) If subsection (1) has been complied with, the judge may, after giving the parties an opportunity to be heard, in the judge’s discretion grant or refuse the application and make any order with respect to the forfeiture of the amount that the judge considers proper. [ 13 ] The

section grants the Court wide discretion, but does not provide any clear guidance as to what factors a judge should consider on an application for forfeiture. However, previous cases have developed factors which may be relevant on such an application. In Canada (Minister of Justice) v. Mirza 2009 ONCA 732 , Justice Rosenberg considered the matter in the context of a surety bail. He stated at paragraph 51: [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 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. [52] Before turning to the particular applications at issue in this matter, I would make three remarks relevant to forfeiture proceedings generally. As noted above, the onus is on the surety to show why full forfeiture of the recognizance should not be ordered. 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. [ 14 ] Although Mirza dealt with a surety bail, rather than cash bail such as in the present case, in my view the considerations are similar. [ 15 ] In R. v. Pawar 2012 BCPC 572 , the Honourable Judge Bayliff of this Court considered an application for forfeiture of bail money.

In doing so, she referenced the high threshold that a surety or accused person has to meet to justify a return of bail money, and the policy reasons for the existence of such a high threshold. At paragraphs 33-34 she stated: [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)”. Analysis [ 16 ] Mr. West represented himself, while in custody, for this forfeiture hearing. He submitted that the reason he was in Powell River and breaching the terms of his release order on November 22, 2019 was because he missed his family and wanted to come and visit his spouse and children.

He said that the separation between him and his family had been hard on them and his spouse and children were forced to live in a camper. The $5000 funds that had been used for his bail were joint family savings with his spouse and the loss of those funds have been and will be a hardship for their family. He also indicated that he has served all of his time on the earlier charges and that the conditions regarding a “no go” to Powell River and limited contact with Ms. Wolter arose from an allegation of domestic assault, charges which were ultimately stayed. [ 17 ] The Crown points out that Mr.

West has a lengthy criminal record, which now includes approximately 50 convictions. His record includes a number of convictions for breaches of probation and recognizances, thus indicating a pattern of disrespect for the administration of justice. When he was arrested in both October and November 2019, he was arrested for committing new offences while out on bail.

When he was arrested on November 22, 2019, he appeared to be in breach of no less than six conditions of his release order, those being breach of his curfew, possessing drugs, possessing weapons, possessing more than one cell phone, being in Powell River, and having contact with Ms. Wolter. [ 18 ] In my view, the “spectacular fashion” in which Mr. West breached his bail conditions weighs in favour of forfeiture of the full $5000. In addition, Mr.

West’s lengthy history of involvement with the criminal justice system suggests that he would have been very much aware of the risk of losing these bail moneys in the event that he breached his conditions. He did so being well aware of those potential consequences. [ 19 ] I have some sympathy for the argument that the bail money may have come from joint family savings, the loss of which is partly born by Ms. Wolter. I have no doubt that loss is a hardship to her. However, when she advanced these funds to secure Mr. West’s release she would have been well aware of the risk to her in doing so.

Moreover, there is no suggestion that she was unaware of the breach that occurred on November 22, 2019 and in fact she appears to have been a willing participant in the breach. [ 20 ] The fact that the assault charges which gave rise to the condition of limited contact with Ms. Wolter were ultimately stayed does not reduce the obligation to comply with that bail term. At the time of the breach, that condition was in place and Mr.

West knowingly breached it, only six weeks after it came into place. [ 21 ] I have given consideration to a partial forfeiture of the bail money in the particular circumstances of this case. However, in my view, ordering anything less than full forfeiture of the funds would undermine the policy foundation for cash bail, which is to exert a pull on an accused person to comply with his bail conditions. Decision [ 22 ] In all of the circumstances, I find that Mr. West has failed to show cause why anything less than the full amount of $5000 should be forfeited.

I therefore order forfeiture of the full amount of $5000. ______________________________

The Honourable Judge R. McQuillan Provincial Court of British Columbia