R. v. Kelly, 2023 MBKB 68

Date: 20230417 Docket: CR23-01-39511 Indexed as: R. v. Kelly Cited as: 2023 MBKB 68 (Winnipeg Centre) COURT OF KING’S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, ) Hugh D.P. Crawley ) for the Crown - and - ) ) NATHAN BRITTON KELLY ) Karl A. Gowenlock Accused. ) for the Accused: ) ) JUDGMENT DELIVERED: ) ) ) ) March 23, 2023 WRITTEN REASONS: April 17, 2023 Champagne J. Introduction [ 1 ] In February 2022, Nathan Britton Kelly (the “accused”) was arrested in Winnipeg. He is charged with two counts of possession of drugs for the purpose of trafficking and one count of possession of proceeds of crime.

He applied for judicial interim release shortly after his arrest. On February 28, 2022, his application for release was denied. He has been in pre-trial detention for over one year. [ 2 ] This matter appears before me for a bail review pursuant to s. 520 of the Criminal Code of Canada R.S.C. 1985, c. C-46 (the “ Code ”). The Crown concedes the bail plan put forward is a strong one with a substantial surety in the amount of $100,000.00. Issue [ 3 ] The Crown’s concern is that the surety resides in Alberta.

The Crown points to a few cases, including one from the Provincial Court of Manitoba that conclude out-of-province sureties are not enforceable under

Part XXV of the Code . The Crown has also provided an Ontario case that concludes an order for forfeiture of an out-of-province surety in enforceable. [ 4 ] The purpose of the surety is twofold. First, to ensure an accused attends court as required. Second, the surety is to supervise the behaviour of the accused in the community to ensure compliance of conditions of release. It can be an onerous obligation.

To ensure the surety understands the seriousness of their responsibility and are committed to their role, sureties pledge an amount of money that is subject to forfeiture, should the accused breach their conditions of release. Typically, the surety is examined to ensure they possess sufficient assets to cover the amount they have pledged. Often, the assets are real property such as a home. [ 5 ] In the application before me, the proposed surety is Jill Britton. Ms. Britton is the mother of the accused. She resides in the home she owns in Leduc, Alberta.

She appears willing to pledge her home as the asset that qualifies her for an amount of $100,000.00.

The Law [6] The Crown cites R. v. Fleming, 2007 BCCA 219, R. v. Martin, (ON CA) and R. v. Khan (May 24, 2019),Winnipeg, 012-89982, 012-90771 and 012-90788 (MBPC) as authority to highlight their concern about enforcement of forfeiture orders. These cases conclude that a surety whose only property is real or immovable property in another province is not “put at risk” of havingtheir property taken in the event of default. Therefore, an out-of-province surety is not a sufficient surety for the purposes of a bail order. [7] The issue of out-of-province sureties recently arose in the case of R. v. S.T., 2022 ONCA 443.

The accused appeared before Justice Brown (presiding as motions judge) seeking release pending hisconviction appeal. The release plan would have the accused reside with his brother, the surety, in Vancouver. The Crown opposed theplan, in part, because an out-of-province surety is unenforceable. [8] Justice Brown considers the history of this issue and ultimately concludes that an order of forfeiture against an out-of-provincesurety is enforceable. I believe that is the correct statement of the law. I acknowledge and thank Justice Brown for the heavy lifting.

Ihave copied paragraphs 25 - 44 of his judgment as they are squarely on point.

Justice Brown explains (footnotes excluded): [25] The final issue concerns the applicant’s proposed surety, his brother, who is two years his senior and also lives in Vancouver.The brother proposes to act as surety in the amount of $30,000, without deposit. [26] The Crown submits that the brother is not an appropriate person to act as surety as he lives outside of Ontario and has no assets inOntario that could be seized in the event of a forfeiture order. [27] In support of that position, the Crown relies on two cases: one a Chambers decision of a judge of this court, R. v.

Martin (No. 2)(1980), (ON CA), 57 C.C.C. (2d) 31 (Ont. C.A.); the other the decision of a panel of the British Columbia Court ofAppeal in R. v. Fleming, 2007 BCCA 219 , 2007 B.C.C.A. 219, 238 B.C.A.C. 317. Before considering those cases, some briefcomments are required about the legislative history of what are now certain sub-sections of s. 771 of the Criminal Code. [28] Sections 770 and 771 of the Criminal Code set out the forfeiture procedure available upon the default of a person to comply withan undertaking, release order or recognizance.

Section 771 provides for the hearing of an application against the principal and/or suretyfor the forfeiture of the amount set out in the undertaking, release order or recognizance. If granted, the application results in a forfeitureorder “with respect to the forfeiture of the amount that the judge considers proper”: s. 771(2).

A forfeiture order makes the principal andtheir sureties judgment debtors of the Crown, each in the amount the judge orders them to pay: s. 771(3). [29] What is now ss. 771(3.1) of the Criminal Code describes the mechanics of enforcing a forfeiture order: once a forfeiture order ismade, it 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 34and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or hasproperty.” [30] Prior to 1972, the wording of the provision – then s. 705(3) − was different.

It provided that upon the making of a forfeitureorder, the clerk of the court shall issue a writ of fieri facias and “deliver it to the sheriff of the territorial division in which the order wasmade.” That language was amended to the present version by the Criminal Law Amendment Act, 1972, S.C. 1972, c. 13, s. 60. [31] The reason for the amendment was explained during the June 1, 1972 session of the Senate Standing Committee on Legal andConstitutional Affairs, which was considering the amending bill. Mr. D.H.

Christie, Assistant Deputy Attorney General, explained to theCommittee, at p. 8:20 of the proceedings: This is a very technical amendment. It was pointed pointed out that under the law as it now exists the writ of fieri facias has to bedelivered to the sheriff in the territorial division in which the order was made. It often happens that the accused has no assets, or does noteven live in that division.

This is now amended so that the writ of fieri facias shall be delivered to the sheriff of the territorial division inwhich the person against whom the order is made has property, resides or carries on business. [32] The Criminal Code, then and now, defines “territorial division” to include “any province, county, union of counties, township,city, town, parish or other judicial division or place to which the context applies.” [33] It was against that statutory history that the decisions upon which the Crown relies – Martin and Fleming – were made. [34] In Martin, the Crown Attorney in the City of Ottawa was not prepared to accept as sureties two persons whose security consistedof real property located across the river in Quebec.

An application was brought before Thorson J.A. for directions, which he dismissed. [35] In obiter, Thorson J.A. expressed “a serious doubt about the effectiveness of any order for the release of a person where it isimplicit in the terms of the order for his release that some security will have to be put up by a surety, but the only security that is or canbe put up is real or immovable property in another Province”: at p. 33. He went on to explain: It would appear to me that the relevant provisions of

Part XXII of the Criminal Code (in particular ss. 704 and 705 [am. 1972, c. 13, s.60] and the definition of the expression "clerk of the court" in

Part XXII) when read together make it impossible to give effect to an orderfor release in the circumstances described above, for the reason that the surety is not "put at risk" of having his property taken inexecution in the event of a default occurring on the recognizance resulting in its forfeiture.

If this is so, then it seems clear that the suretycannot be taken to be a "sufficient" surety. [36] In Fleming, bail was granted by a Supreme Court judge on the condition the accused provide a surety in the amount of $100,000.The accused proposed a surety from outside the province, whom a justice of the peace refused to accept. The Supreme Court judge endedup ordering bail with a $100,000 cash deposit. The Chief Justice ordered a review of the bail order pursuant to s. 680(1) of the CriminalCode to consider whether the Supreme Court judge was wrong to refuse an out-of-province surety.

[37] A panel of the B.C. Court of Appeal concluded that the Supreme Court judge was right to find that the proposed surety was insufficient. In addition to referring to s. 771(3.1) , the panel pointed to s. 772(1), which states: Where a writ of fieri facias is issued pursuant to

section 771 , the sheriff to whom it is delivered shall execute the writ and deal with the proceeds thereof in the same manner in which he is authorized to execute and deal with the proceeds of writs of fieri facias issued out of superior courts in the province in civil proceedings. [38] After referring to those two sections, the panel wrote, at para. 6: The process is limited by the territorial jurisdiction of the criminal court that issued the writ . Nothing in the provisions just noted permit a B.C. court exercising its criminal jurisdiction to enlist the services of sheriffs in another province.

Nothing in the provisions grant British Columbia sheriffs the right to operate extra-provincially.

Thus, if a surety puts up property in another province, the property would not be at risk and the surety therefore insufficient. [39] Relying on Martin and Fleming , the Crown submits that the applicant’s brother is not an appropriate person to act as surety as he lives outside of Ontario and has no assets in Ontario that could be seized in the event of a forfeiture order. [40] The applicant submits that Fleming was wrongly decided and should not be followed for several reasons. • First, Fleming’s analysis ignores the breadth of the definition of “territorial division” in the Criminal Code , which includes any province.

Accordingly, the language of s. 771(3.1) that the clerk of the court deliver the writ of fieri facias “to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property” is sufficient to permit the clerk in one province to transmit the writ to a sheriff in another; • Second, the writ of fieri facias delivered by the clerk is not the writ of execution or fieri facias used under provincial civil rules of procedure, but a form specific to the Criminal Code – Form 34 – which, by its terms, is directed “to the sheriff of (territorial division)”, a broadly defined term; and • Third, Fleming creates a situation where no one could propose an out-of-province surety unless they posted a cash bond.

This would be contrary to the restrictive approach to cash bonds directed by the Supreme Court in R. v. Antic , 2017 SCC 27 , [2017] 1 S.C.R. 509, at para. 67 (h), when the alternative exists that the accused or their sureties have reasonably recoverable assets available for pledge to the court to justify the accused’s release. [41] I am persuaded by the applicant’s submission that I should not follow the obiter in Martin or the decision in Fleming .

While the court in Fleming wrote that nothing in ss. 771(3.1) or 772(1) of the Criminal Code would permit a court in one province exercising its criminal jurisdiction to “enlist the services of sheriffs in another province”, in my respectful view the plain language of the Criminal Code grants such authority. [42] As appears from the legislative history of s. 771(3.1) and its predecessor described above at paras. 30 and 31, the 1972 amendment to the predecessor provision – s. 705 – was designed specifically to deal with the situation where the accused, or his surety, has no assets in the “territorial division” in which the forfeiture order was made.

The provision was amended to recognize the practical reality of a mobile Canadian population and enable the clerk of the court to deliver the writ of fieri facias to the sheriff “of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.” As well, s. 771(3.1) ’s enforcement mechanism does not rely on provincial forms of writs of execution or fieri facias , but uses a type of writ of fieri facias tailor-made for criminal forfeiture proceedings that is directed “to the sheriff of (territorial division)”.

Since the Criminal Code includes in its definition of “territorial division” any province, s. 771(3.1) enables the clerk in the territorial division in which the forfeiture order is filed to deliver a Form 34 writ of fieri facias to the sheriff in each province where the accused, or his surety, “resides, carries on business or has property”. [43] In my view, the authority for a clerk of the court to direct a Form 34 writ of fieri facias to a sheriff in another province to further the enforcement of a forfeiture order is patent on the face of the statutory language in s. 771(3.1) chosen by Parliament to express its intention and is consistent with furthering the administration of the national bail scheme created by federal statute.

As Trotter J.A. observes in the Law of Bail in Canada , loose-leaf, 3rd ed. (Toronto: Carswell, 2022) at §13:19, forfeiture orders “are enforced by writs of fieri facias , allowing the assets of the judgment debtors to be traced to any territorial division.” I also accept the applicant’s submission that such an

interpretation of s. 771(3.1) facilitates the restrictive approach to cash bail directed by the Supreme Court in Antic . [44] Consequently, I do not regard the fact that the proposed surety lives in Vancouver as precluding his suitably to act as surety. I am otherwise satisfied that the applicant’s brother is an appropriate person to act as surety. Conclusion and disposition [ 9 ] I conclude an order of forfeiture for an out-of-province surety is enforceable.

The plan put forward by the accused addresses all of the concerns found in section 515(10) of the Code and he has shown cause why he should be released. [ 10 ] The release order will include the following conditions: • The accused promises to pay an amount of $10,000.00 with a surety of $100,000.00. • The accused must live with his mother at her home in Leduc, Alberta. • The accused must not live at a different address unless a judge first gives permission to move or the Crown prosecutor

notifies the court in writing that they are not opposed to the accused moving to a new address. • The accused is to have no contact or communication directly or indirectly with Tushar Thaman. • The accused is not to use any prescription drug unless he has a prescription for the drug. • The accused is not to possess or use any illegal drugs. • The accused is to abide by a daily curfew from 10:00 p.m. to 8:00 a.m. • The accused may be away from his home address during curfew hours if in the presence of his surety.

If the absence is to be overnight or more than one day, the accused is to notify the Leduc Police in advance.

The other exceptions to the curfew include any medical emergency for the accused or immediate family member or for court purposes in Winnipeg, Manitoba, including travelling directly to and from Manitoba. • The accused must come to the door of his residence or answer the telephone in response to curfew checks by the RCMP or their designate. • The accused is not to attend Winnipeg, Manitoba except for court purposes. • The accused must not own, possess or carry any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance.

To be clear, he must not own, possess or carry any weapons. [ 11 ] The accused will be released once his mother demonstrates she qualifies as a surety for the amount of $100,000.00. _____________________________ J.