R. v. Campbell, 2024 ONCA 194

A cautionary tale for bail pending appeal sureties. The appellant did not surrender the morning of his appeal as required by his release order. The Crown brought a motion under s. 771 of the Criminal Code for forfeiture of the monies pledged by the appellant and his three sureties. Counsel for the sureties took the position that the motion should be dismissed as the sureties fully discharged their obligations. Ultimately, the Court granted the Crown’s application.

The morning before the appeal, the sureties realized the appellant was missing. They called one another, the appellant’s lawyer and the police to report his absence.

The Court has wide discretion in granting or refusing an application for forfeiture under s. 771.

Relevant considerations include:

(1) the nature of the relationship between the surety and the accused, as well as level of control the surety had over the accused’s behaviour;

(2) the sureties’ intended roles in the supervision where more than one surety signs;

(3) the amount of the recognizance;

(4) the circumstances in which the surety entered into the recognizance; especially whether there was any duress or coercion;

(5) the surety’s diligence;

(6) the surety’s means;

(7) any significant change in the surety’s financial position after entering into the recognizance especially after the breach;

(8) the surety’s post-breach conduct, especially the surety’s attempts to help the authorities find the appellant; and,

(9) the relationship between the appellant and the surety.

Applying the factors, the Court concluded (amongst other things), that the sureties and the Appellant were good friends and had previously acted as sureties to the appellant before. There was no evidence that they offered any assistance or information to the police to try and locate the Appellant and there was no evidence of any change to their financial status that forfeiture would cause them hardship.

All-in-all, the Court concluded that the sureties failed to exercise the requisite level of diligence and supervision with respect to the Appellant and failed to make adequate efforts to locate him or to assist the police in locating him following his breach. As a result, they did not meet their onuses to persuade the Court that forfeiture should not be ordered.

For more information on forfeiture, check out Emond’s “Prosecuting and Defending Fraud Cases, 2nd Edition”, chapter 8, “Forfeiture”.