IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On February 13, 2018, Mr. Moulton and a co-accused were charged with four Criminal Code offences and one Controlled Drugs and Substances Act offence.

[2]           Mr. Moulton entered into a recognizance on July 5, 2018, with a $10,000.00 cash deposit and various conditions to secure his release on bail.

[3]           Before the conclusion of the case, Mr. Moulton was charged with offences out of Ontario including breach of his B.C. recognizance.

[4]           The Crown initiated estreatment proceedings for forfeiture of the $10,000.00 cash deposit based on the outstanding Ontario charges. A Certificate of Default in Form 33 was endorsed under s. 770 of the Criminal Code and an estreatment (forfeiture) hearing set under s. 771 of the Code. After the certificate of default was endorsed but before the estreatment hearing, Mr. Moulton was acquitted of the charge to which the recognizance related (the Criminal Code charges had been stayed prior to trial).

[5]           The Crown applies to adjourn the estreatment hearing until the outcome of the Ontario charges is determined. The Defence opposes the adjournment asserting the estreatment proceedings have been brought prematurely given the outcome of the Ontario charges has yet to be determined so no default of the recognizance has been established. Consequently, the Defence argues, the certificate of default should not have issued and ought to be quashed, and the $10,000.00 deposit returned to Mr. Moulton given the charges relating to the recognizance have concluded.

[6]           In my view, the certificate of default ought to be quashed as it has not been established that Mr. Moulton did not comply with his recognizance which is a prerequisite to the proper endorsement of a certificate of default.

[7]           To explain my conclusion, I will first provide more background information, define the issues Mr. Moulton’s case presents, discuss relevant legal principles, and analyse how those principles apply to the facts.

[8]           Mr. Moulton’s trial on the Controlled Drugs and Substances Act charge took place intermittently between April 11 and October 4, 2019.

[9]           On September 3, 2019, the Crown learned that Mr. Moulton had been arrested on August 6, 2019, and charged with drug and weapons offences out of Ontario. He was granted release on bail for those charges. The Crown in B.C. did not seek to revoke bail for the B.C. charge or apply for a warrant under s. 524 of the Code which would involve seeking a finding by the court that there were reasonable grounds to believe Mr. Moulton violated his recognizance.

[10]        The Crown notified Defence Counsel on September 12, 2019, that it intended to call the matter ahead into court to ask the court to endorse a certificate of default of the recognizance under s. 770(1) of the Code based on the outstanding Ontario charges. The Crown proposed three court dates to Defence Counsel to address the matter. None of the dates were convenient to the Defence. There is no suggestion that the Defence was trying to frustrate the proceedings in declining the three dates proposed. Although there was no urgency, the Crown advised Defence Counsel that they would have the matter in court on September 20, 2019, with or without Defence Counsel present as, in the Crown’s view, their presence was not required for seeking the endorsement.

[11]        On September, 20, 2019, a default was endorsed by the Honourable Judge Harris and the $10,000.00 deposit marked for estreatment. As an aside, the certificate of default in Form 33 that these proceedings is based on is dated December 13, 2019, and signed by a Clerk of the Court on behalf of Judge Harris. This makes me wonder if Judge Harris even saw the Form 33 the Crown relies on, which is not a criticism of Judge Harris, rather it is an interesting feature of this case. Had it been prepared at the time the request was made one would think it would have been handed up to Judge Harris for his immediate signature.

[12]        An estreatment hearing under s. 771 was set for January 17, 2020. In the meantime, on November 8, 2019, Mr. Moulton was acquitted of the drug charge to which the recognizance relates.

[13]        Mr Moulton has pled not guilty to the Ontario charges. They have yet to be tried.

[14]        To understand the issues the case presents, it is necessary to understand the significance of the Form 33 - certificate of default.

[15]        A certificate of default sets in motion the forfeiture process and is a precondition to setting an estreatment hearing. The certificate may only be issued if “…a person bound by a recognizance does not comply with a condition of the recognizance…” (Criminal Code: s. 770(1)). The certificate must contain sufficient information to adequately inform the person bound by the recognizance, any sureties, and the court, of the breach and to allow them to address, and the court to assess, the appropriateness of forfeiture at the forfeiture hearing.

[16]        Three issues arise in Mr. Moulton’s case based on the arguments of counsel. They are:

[17]        As mentioned, the certificate of default must have sufficient detail to enable the principal and sureties to be adequately informed of the default, and by extension, able to defend a forfeiture application.

[18]        The certificate is also evidence of the default to which it relates: Code, s. 770(3). Sometimes it is the primary evidence used to justify forfeiture at an estreatment hearing so it must also be sufficiently detailed to inform the court (R v. Taylor, [2002] O.J. No.4246; paras. 50-51).

[19]        Whether it is sufficient to meet these purposes is determined through a plain reading of the certificate as a whole including the description of the nature of the default and reasons for it if the reasons are apparent (Taylor, para. 49). The court is without jurisdiction to proceed with a hearing if the certificate is not fulsome enough to achieve these purposes. However slight deficiencies do not render it a nullity (Taylor, para.42).

[20]        The certificate of default is in the standard Form 33. It specifies that the ends of justice have been defeated by Mr. Moulton’s non-compliance with his recognizance. The nature of the default on the certificate is described as:

[21]        The reason for the default is described as:

[22]        The certificate of default is thin on detail and questionably drafted but when read as a whole it adequately serves its purpose of providing notice of the alleged default.

[23]        Under the “nature of the default” section, the entry describes what happened to Mr. Moulton – he was arrested and charged. Added is a conclusory statement “as a result of non-compliance with conditions of bail dated July 5, 2018”. This alone is insufficient to meet the requirements of s. 770(1).

[24]        The section “reason for the default” is a holdover from a time when the majority of breaches were for failing to attend court. The section was meant to provide an opportunity for the Principle or Surety to explain the reason for the default as evidence at the s. 771 estreatment hearing (Taylor; R v. Stricker, [2013] A.J.No.934).

[25]        In the present case, the information in the reason for default section does not provide a reason for the default but does inferentially add to the nature of the default. In particular, by articulating the conditions of the recognizance Mr. Moulton is said to have breached on the day of his arrest, one can infer that he is alleged to have been in possession of weapons.

[26]        This is a close call but in sum the certificate of default specifies the allegation of possession of weapons on August 6, 2019, in violation of the stated conditions of his July 5, 2018 recognizance, and the laying of new charges including one of breaching his recognizance. This is sufficient to comply with s. 770(1) of the Code in this case.

[27]        As noted, s. 770 is predicated on a finding of a contravention of the terms of the recognizance. Whether such a finding should be made is in the discretion of the judge. S. 770 is silent though on how a default is to be proven, through what procedure, on what type of evidence, and to what standard of proof.

[28]        Previous court decisions have addressed the situation here, where the alleged contravention is the subject of separate charges yet to be litigated: R v. Dallaire, 2002 CanLII 62578 (ON CJ), [2002] O.J. No. 140; R v. Farrell, 2012 ABQB 744; R v. Goy, [1994] S.J. No. 111; R v. Esakin, [1999] S.J. No. 342; R v. Parsons, 1997 CanLII 14679 (NL CA), [1997] N.J. No. 337; R v. Stricker, [2013] A.J. No. 934. There is some divergence in approach to whether outstanding charges yet to be determined can form the basis for concluding a person has not complied with a condition of their recognizance.

[29]        Dallaire, Goy, Esakin, and Parsons all take the position that it is inappropriate for a judge to conclude that a person has failed to comply with their recognizance under s. 770 if the alleged failure is the subject of separate charges yet to be litigated. In Goy, and Esakin, Goldenberg J. takes the view that, merely being charged with outstanding offences does not, at law, establish a default. On the other hand, pleading guilty or being found guilty of an offence does. It is only in these latter circumstances that a certificate of default should issue. The point was plainly articulated in Esakin (at para. 18):

[30]        Crown Counsel submits that outstanding charges need not be resolved first because the standard of proof of a default is on a balance of probabilities which is a lower than the beyond a reasonable doubt standard for outstanding charges. Further, that on the whole, the certificate of default in Mr. Moulton’s case was properly endorsed. For context, the Crown partly relies on comments in Farrell, (at para. 23) that endorsement of a default in Form 33 is merely an administrative act that does not deprive anyone of anything. Further, that Form 33 is just a commencement document. I agree with much of what is written in Farrell, but I respectfully disagree with those characterizations.

[31]        The endorsement of the certificate of default has consequences to the accused and any sureties. Firstly, it mandatorily sets in motion a proceeding that jeopardizes their deposit. Taking the point to a logical extreme, in theory, endorsing a s. 770 certificate of default and proceeding with a s. 771 estreatment hearing before an outstanding charge has been resolved could result in an accused losing their cash deposit despite the outstanding charge never being proven.

[32]        Secondly, once the endorsement is made, the bail money is unreachable to the accused. For example they cannot apply it to any new form of release or use it for economic necessities such as rent, or food at the conclusion of proceedings to which the recognizance relates in situations like Mr. Moulton’s where he was acquitted of the underlying charge.

[33]        Thirdly, s. 770(3) makes the certificate itself evidence of the default to which it relates. Section 24 of the Interpretation Act, [RSBC 1996] c.238, clarifies that the document (certificate) is proof of the fact absent evidence to the contrary. At the estreatment hearing, the accused and sureties will have to overcome that presumption.

[34]        Given these consequences, the determination of whether there has been a default has importance and should be analysed at the s. 770 stage to a degree commensurate with its importance.

[35]        Crown Counsel argues that the threshold to prove a default is a balance of probabilities: Farrell, para. 31; Stricker, para. 125 and that the laying of charges in Ontario meets that standard.

[36]        Cases suggesting outstanding charges making up the default allegation need to be proven before a default finding can be made can arguably be interpreted as requiring a proof beyond a reasonable doubt standard (Goy, Esakin), or having more to do with timing of the application (Dallaire, Parsons). Mr. Moulton’s matter can be resolved without wading into this discussion. Regardless of the standard, in the absence of an admission by an accused, simply being arrested and charged while bound by a recognizance, without more, does not meet either standard in my view.

[37]        The fact of an arrest does not confidently indicate there were reasonable grounds for the arrest. The laying of a charge shows a person with charge approval discretion believes the charge approval standard has been met. In neither instance is there an objective judicial determination at either standard of proof that the accused has contravened their recognizance. Add to that the fact of an accused disputing the contravention and one can see the challenge of meeting either standard in the absence of evidence being presented to the court.

[38]        Mr. Moulton does not admit the default. Consequently, regardless of the threshold, there needs to be an evidentiary basis to establish the default. Whether that basis is viva voce, or affidavit evidence will depend on the case. I agree with the following approach articulated by Anderson A.C.J. in Stricker:

[39]        Before concluding, I wish to comment on a procedural feature of this case. The Crown sought a default finding without the presence of the accused or Defence Counsel. The Crown relied on R v. Hassan, 2016 ONSC 1285, (para. 16) as authority. I would not encourage this practice of ex parte requests for endorsement of a certificate of default where there is a question whether there was a default.

[40]        In Hassan, McCombs J. mentions that s. 770 does not explicitly require notice to the parties, which is accurate, but it is important to understand the factual backdrop to that comment. In Hassan the accused pled guilty to two new charges including breaching his recognizance. As a result, the fact of a default was indisputable. Under those circumstances, the judge has no discretion but to find a default and certify the breach: Purves v. Canada (Attorney General) (1990), 1990 CanLII 903 (BC CA), 54 CCC (3d) 355 (BCCA), (p.366); Dallaire, (para. 22); Farrell, (para. 19); Hassan, (para. 11).

[41]        I do not interpret Hassan as support for the notion that no notice to the accused or their sureties need be given where the alleged default is in issue. In fairness, notice should be provided given the default endorsement on Form 33 has consequences to an accused and their sureties as discussed above.

[42]        Here, the accused did not have the opportunity to oppose the default assertion because the Crown brought it without the presence of the Defence. This is a consideration when determining whether a default finding ought to be made (Parsons, para. 37).

[43]        As stated earlier, a certificate of default can only be issued where: “…a person bound by a recognizance does not comply with a condition of the recognizance…” (Criminal Code: s. 770(1)).

[44]        In my view, the certificate of default ought to be quashed as it has not been established that Mr. Moulton has contravened a condition of the recognizance. Consequently, it does not comply with the requirements for the issuance of a certificate of default under s. 770(1). In the absence of a valid certificate of default in Form 33, the court has no jurisdiction to continue the estreatment proceedings. Accordingly I dismiss the estreatment application.

[45]        I decline to order what should be done with bail money. The parties are at liberty to return before me to make submissions on that issue.