Another helpful case on this issue is J.E.,  B.C.J. No. 575 (BCSC):
With great respect to the learned trial judge, I conclude that the appellant was not in breach of his undertaking to reside where directed. It is clear that the appellant intended to return to the Maples, or alternatively, to Midway, because he did so. His temporary absence cannot, in my view, be construed to mean that his residence at those institutions was thereby terminated. In the circumstances of this case, where the absence from the residence is temporary, that is, of relatively short duration, then the appellant's residence was unchanged. To find otherwise would, in my opinion, mean that the residence undertaking amounted to a form of house arrest.
Regarding the obligation of the surety, note the following case:
R. v. Norman  O.J. No. 1573
G. TROTTER J.:--
1 The estreatment and forfeiture provisions of the Criminal Code are usually engaged when an accused person breaches bail by failing to appear in court. This case involves the breach of a house arrest condition.
2 As a result of this breach, which was detected almost
immediately by the police, the Crown seeks forfeiture of the $30,000 recognizance entered into by Jeremy Norman, and his sureties, Brian Norman (his father) and Tonie Norman (his mother). Brian Norman and Tonie Norman, who were once married to each other, are represented by counsel and resist the application. Jeremy Norman, while aware of the hearing, declined to participate.
3 On January 17, 2005, Mr. Norman received an 8-year prison term (after receiving credit for 4 years in pre-sentence custody) for manslaughter: see R. v. Norman,  O.J. No. 1073 (S.C.J.), per Watt J. (as he then was).
4 Mr. Norman was eventually released on parole and was living at a halfway house. On September 29, 2010, while he was still on parole, Mr. Norman committed a random and violent assault on a female stranger. Mr. Norman jumped a woman from behind, took her to the
ground and punched her over 50 times. The police were called and Mr. Norman was apprehended. When the police arrived, Mr. Norman was very intoxicated. He was charged with assault causing bodily harm.1
5 Surprisingly, Mr. Norman was ordered released on bail on October 20, 2010. The learned justice of the peace ordered that Mr. Norman enter into a recognizance in the amount of $30,000. He named two sureties under s. 515(2.1) of the Criminal Code and the amounts for which they would be liable: Tonie Norman - $20,000 and Brian Norman - $10,000.
6 The recognizance included eight conditions, a number of which attempted to address Mr. Norman's very serious alcohol and drug problems (the latter of which was related to his manslaughter conviction). Unfortunately, a number of these conditions are carelessly or awkwardly drafted. The condition at the heart of this proceeding is the following:
6. House Arrest: be in your place of residence at all
times seven days a week except: to go directly to and from and while at employment, counselling (including residential treatment), reporting to a parole officer, medical emergencies, or in the direct
company of either surety.
I note that the recognizance does not identify Mr. Norman's "place of
residence." However, the evidence on this hearing established that he
was living with his mother at 2325 Bridletowne Crescent in
7 The reasons of the learned justice who ordered the release of
Jeremy Norman were not made available to me at this forfeiture
hearing. However, it is clear from the recognizance that his mother
was tasked with primary supervisory responsibility. This is reflected
in the fact that she signed for a larger amount, and from the
inclusion of the following condition (spelling and punctuation
mistakes in the original):
3. Provide your medical appointments schedule and work,
schedule and parole appointments to your mother.
8 The recognizance was not entered into by the sureties until a
few weeks later. Jeremy Norman remained under the control of
Correctional Services Canada and the National Parole Board. His
parents helped supervise him when he was simultaneously on parole and
bail. On January 13, 2013, the warrant expiry date of his 8 year
manslaughter sentence, Jeremy Norman went to live with his mother.
(b) The Breach of Recognizance
9 On February 21, 2013, at about 8:30 p.m., the police spotted Mr.
Norman in a van in a laneway off Queen Street, in the City of Toronto.
He was not with either surety. He was charged with breaching his
recognizance under s. 145 of the Criminal Code.
10 At the trial of this charge, before the Honourable Justice F.
Clements on November 1, 2013, it was conceded that Jeremy Norman
resided with his mother. It was Mr. Norman's position that he had been
working during the day and then went looking for an AA meeting. He
located one at the Toronto Western Hospital in downtown Toronto.
However, he was arrested at a location a considerable distance from
the hospital. Mr. Norman claimed he was attempting to avoid traffic
congestion, even though it was 8:30 p.m. Moreover, it turned out that
the meeting that he said that he planned to attend was conducted in
Portuguese, a language that he did not speak or understand. In
convicting Mr. Norman, Clements J. referred to his evidence and said:
"On the totality of the evidence, it made no sense. He was in fact not
going directly to counselling as the condition of his bail required.
Accordingly, I find him guilty of the offence."
(c) Evidence at the Forfeiture Hearing
11 Both sureties testified at the forfeiture hearing. In brief,
the following story emerged. Mrs. Norman went away on holiday and left
Brian Norman to be in charge of the sole supervision of their son.
They formalized this arrangement in a document drafted by Brian
Norman, which stated:
To: Tonie Norman
Re: Your Absence Starting Feb. 21, 2013
To let you have a care free vacation
I will be assuming complete responsibility for any
and all bail conditions for the period you are away.
These include any specific conditions that you
felt directly and personally responsible for.
Have a great holiday!
On February 20, 2013, this document was signed by Brian Norman,
witnessed by another person, and acknowledged by Mrs. Norman. Mrs.
Norman's travel itinerary and contact information was appended to the
12 Brian Norman, who is now 68 years old, testified that, once his
son was living with his mother, he spoke to him by phone daily. They
saw each other in person three times a week. A week before Mr. Norman
breached his recognizance, Brian Norman had discussions with Mrs.
Norman. She wished to go away, but wanted to be sure that their son
was properly supervised. The plan was for Mr. Norman to move into her
home and stay with their son while she was away. Mr. Norman said that
Mrs. Norman told him that she had spoken to a lawyer and was assured
that it was legal. When he went to his ex-wife's home to execute the
document, he brought an overnight bag with him, as he planned to be
there the next night.
13 Mr. Norman also planned to be at Mrs. Norman's house on
February 21, 2013. Instead, he went to Collingwood with his current
partner and another couple to discuss business plans. He described the
trip as a "getaway." Mr. Norman testified that he knew that his son
had a doctor's appointment at 4:30 p.m. that day, which he believed he
was entitled to attend.2 Medical documentation confirmed this
14 Mr. Norman subsequently learned that, after his appointment,
his son went to the home of a person called "Dwight" to help him with
some computer work. Mr. Norman believed this to be "employment" within
the meaning of the recognizance.
15 Brian Norman had his cellphone with him when he left the city
that day. His son tried to contact him at least 4 times in the
evening. Mr. Norman did not answer the phone. Indeed, when the two
couples stopped for dinner at a restaurant during their getaway, Mr.
Norman decided to leave his phone in the car. Mr. Norman concluded his
testimony by saying, "I agree, I fell down on the job that day."
16 Mrs. Norman is a 70-year-old retired nurse. She explained the
struggles she and her ex-husband have endured with their son's
addictions and offending behaviour. When their son came to live with
her in January of 2013, she was very diligent. She monitored his
activity very carefully. Mrs. Norman checked his schedule everyday and
more than once. The police did compliance checks at her home from time
to time. Mrs. Norman went to court with her son from time to time, as
did her ex-husband. She knew about her son's medical appointment on
February 21, 2013.
17 Mrs. Norman testified that the idea of going on vacation was a
last minute decision. She said that she would only go if she were
permitted to do so. As Mrs. Norman said, "I am a rule follower." She
phoned a criminal lawyer (neither Mr. Santoro nor Ms. Ruffo) and
received the advice that she did not need to inform the court or the
police about her absence from the jurisdiction for the purposes of
taking a vacation. The lawyer who provided this advice did not testify
or provide evidence at this proceeding.
18 The provisions governing the forfeiture of recognizances are
set out in Part XXV of the Criminal Code. Most of the sections deal
with the procedure for giving accused persons and sureties proper
notice of the proceedings. When this has been done, s. 771(2) provides
(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 as he considers proper.
The Criminal Code provides no further guidance as to how this
discretion should be exercised.
19 As an initial consideration, it is the Crown that triggers
proceedings under Part XXV by requesting that the recognizance be
noted in default for estreatment: see s. 770(1) of the Criminal Code.
However, once the Crown follows through and the accused and the
surety(ies) are given notice of a hearing under s. 771(2), the onus
shifts to the accused and the sureties to demonstrate why they should
be relieved from forfeiture. Thus, while the title of proceedings
states that Jeremy Norman, Brian Norman and Tonie Norman are
respondents, they bear the onus at this hearing.
20 The principles concerning the forfeiture of recognizances are
dealt with extensively by a five-person panel of the Court of Appeal
in Canada (Minister of Justice) v. Mirza (2009), 248 C.C.C. (3d) 1
(Ont. C.A.) ("Mirza"). In that decision, the Court addressed the
standards to which sureties ought to be held in cases where the
accused person has absconded. The controlling principles to be
distilled from this decision are helpfully summarized in the recent
decision of my colleague, C. Speyer J., in Romania v. Iusein, 2014
ONSC 623, at para. 22:
* The onus is on the surety to show why the recognizance
should not be forfeited (para. 27)
* In considering what the appropriate test on a
forfeiture application is, the preeminent importance of preserving the
moral pressure or "pull of bail" must be recognized, so as to ensure
it complies with the bail conditions, especially the condition that
the accused appear in court or surrender into custody as required.
* The following memorable statement of Lord Widgery,
Chief Justice, in R. v. Southampton Justices, ex parte Corker (1976),
120 S.J. 214 captures the meaning of the "pull of bail":
The real pull of bail, the real effective force
that it exerts, is that it may cause the offender to attend his trial
rather than subject his nearest and dearest who has gone surety for
him to undue pain and discomfort.
* An overemphasis on the surety's lack of fault can
undermine the "pull of bail" and have an adverse impact on the
criminal justice system, which depends upon the accused complying with
release conditions (para. 41)
* Courts in Canada have a broad discretionary approach
and a number of factors must be taken into account in considering
whether to relieve against forfeiture. A rigid rule of total
forfeiture, absent exceptional circumstances, is inconsistent with a
judge's broad discretion (paras. 42 and 44)
* The diligence of a surety is an important
consideration in forfeiture hearings (para. 47)
* In the vast majority of cases which involve relatively
small sums, probably nothing less than total forfeiture will suffice
to vindicate the pull of bail. (para 46)
21 As noted above, Mirza was an absconding case. The Court of
Appeal did not discuss the principles applicable to other types of
bail breaches. In fact, little has been written about forfeiture in
these circumstances. This is not surprising because, at common law, a
surety was not liable to forfeiture for breaches of conditions
designed to secure the accused person's good conduct while on bail.
Indeed, in England and Wales, sureties are only responsible for
ensuring that the accused person attends in court as required: see
Bail Act, 1976 (U.K.), 1976, c. 63. In other words, in England and
Wales, there is no such thing as a surety for good behaviour: see C.
Chatterton, Bail: Law and Practice (London: Butterworths, 1986), p.
22 Canadian law took a different path and sureties are now
required to supervise compliance with all of the conditions of
release. This is made clear by the wording of Form 32 (Recognizance)
of the Criminal Code. Among other conditions, sureties are often
tasked with ensuring that accused persons attend treatment, observe
curfews and be subject to house arrest. Conditions of this type are
imposed in order to address primary, secondary and tertiary concerns
while the accused person is on release.
23 Categorically, one type of condition is no more important than
any other. It will depend on the circumstances. Historically,
attendance in court was the dominant focus of Anglo-Canadian bail law.
When an accused person fails to attend his or her trial, public
confidence in the administration of justice is undermined. However,
other conditions may be just as important, especially those that are
put in place to protect specific individuals (i.e., non-communication
conditions) or the public at large (i.e., firearms and weapons
prohibitions and house arrest conditions).
24 In discussing different types of conditions in the context of
forfeiture proceedings, Speyer J. said the following in Iusein (at
Without in any way diminishing the importance of a
surety supervising and attempting to enforce an accused's conditions
of bail other than attendance in court, the primary responsibility is
ensuring an accused's attendance in court. Absconding is more serious
than most, if not all, other breaches of recognizance. The extent of a
surety's liability when the breach concerns curfew violations and
residency requirements may well be mitigated by the diligence
exhibited by the surety in the context of what can be reasonably
expected. That said, an important counterbalancing consideration is to
ensure there is not an over emphasis on a surety's lack of fault. Such
overemphasis could adversely impact the effectiveness of the bail
system. (See paragraph 41 of Horvath and Mirza).
I agree with these observations. In terms of failing to appear,
however, I wish to make one further observation. Speyer J. spoke of
the accused "absconding." That was the focus in Mirza, in which the
accused were successful in bringing the proceedings to a permanent
halt by fleeing. This is the most serious example of failing to
appear. However, judges of this Court are sometimes asked to order the
forfeiture of recognizances when an accused person fails to appear for
an interim date (or even a trial date), but then ends up being
apprehended and brought back into the system. These types of breaches,
short of full-blown absconding, might be looked at differently for
25 With other types of conditions, the consequences of a breach
are not always obvious. Taking house arrest or curfews as examples, a
failure to abide by these types of conditions may admit a spectrum of
consequences. At one end is the accused who commits a serious offence
when he or she is out of the home in contravention of a curfew or a
house arrest condition. The breach enables the commission of the
offence, in the sense that the offence would never have been committed
had the accused abided by the terms of his or her bail conditions.
26 At the other end of the scale is the accused person who arrives
home, an hour after his or her curfew (or who has temporarily stepped
out of a house arrest arrangement), only to find the police waiting in
the driveway. While it is important that bail conditions be obeyed and
are seen to be taken seriously, these breaches result in no tangible
harm to the community. However, some breaches of bail expose the
community to the risk of re-offending. Sometimes, the risk is
27 On one hand, the breach in this case resulted in no tangible
harm to the community. The police observed Jeremy Norman in his van
and pursued him. He was caught immediately. No other offence was
committed in the meantime. However, left unsupervised and out driving
around the City in an area well-known for its drug trade, the
community was exposed to serious risk. Drugs are a serious problem for
Jeremy Norman, something that increases his risk to society. Indeed,
most of the conditions of his recognizance are focused on preventing
this from occurring. In short, the breach increased the risk of harm,
even though it was short-lived.
28 Returning to the conduct of the sureties, great emphasis was
placed on the legal advice Mrs. Norman received. As I have already
noted, the substance of this advice was never provided to me in any
formal manner. However, I accept Mrs. Norman's evidence that she
consulted a lawyer and was told that she was not required to advise
the police or "the court" about the arrangement that she made with her
ex-husband. In other words, she was told that it was all right to go
on holiday in the circumstances.
29 This advice was seriously flawed, even though no statutory
provision was infringed by what happened in this case. While sureties
serve at will and may terminate their commitment for any reason, this
does not mean that they are permitted to re-write the conditions of
release to suit their own circumstances.
30 Similarly, sureties are not entitled to delegate their
responsibilities to others. In Iusein, during the currency of the
recognizance, two of the three sureties traveled to Cuba on business.
One of them was away for almost a month and delegated responsibility
for checking up on the accused to his nephew (who was not a surety).
Speyer J. disapproved of this arrangement in para. 31 of his reasons:
In this respect, Solmaz was an irresponsible
surety. He last saw [the accused]...more than a month before his
absconding. It cannot be countenanced that sureties hand-off their
supervisory responsibilities to friends or other family members. In
granting bail, Garton J. reposed trust in Solmaz and not his nephew.
It is no answer for Solmaz to plead that his nephew went to see [the
accused] every day. [emphasis added]
31 The situation in this case is slightly different because Mrs.
Norman delegated her responsibilities to another surety. However, this
had the effect of seriously diluting the arrangement put in place by
the justice of the peace. The two-surety bail ended up turning into a
single surety bail, with the residential surety, who was on the hook
for the most substantial amount, out of the country. This is not what
the justice of the peace contemplated when releasing Jeremy Norman.
32 In circumstances such as these, when a surety is unable to act
(either permanently or temporarily), it is necessary that the bail
situation be formally addressed. This may achieved by making an
application for variation on a bail review under s. 520 of Criminal
Code.3 Other options include making an application to substitute a
surety (under s. 767.1), or by rendering the accused into custody (ss.
766 or 767): see R. v. Smith, 2013 ONSC 1341, per Dambrot J. At the
very least, the officer-in-charge or the prosecutor should be apprised
of the situation.
33 In this case, a substitution under s. 767.1 was likely not an
option as no one else was available. Rendering Jeremy Norman was
obviously not a desirable course of action for this family. In the
circumstances, the proper course of action was to seek a bail
variation, asking a judge to allow Mr. Norman to act as the sole
surety for the period of time that Mrs. Norman was away. Given the
serious risks that Jeremy Norman poses to the community, this
variation would probably have been opposed by the Crown, and it may
not have been granted by a judge acting under s. 520 of the Criminal
Code. Had the application failed, Mr. and Mrs. Norman would have known
that the proposed plan was inappropriate and that she and her
ex-husband would be liable to forfeiture if they proceeded in any
event. Accepting Mrs. Norman's evidence that she is a rule-follower, I
have no doubt that she would not have gone on holiday in the
circumstances. Had an application under s. 520 succeeded, Mrs. Norman
would have been absolved of responsibility during this period, but Mr.
Norman would have assumed the entire risk.
34 I am somewhat sympathetic to the plight of Mrs. Norman because
she sought legal advice before leaving the jurisdiction. In Mirza,
Rosenberg J.A. (para. 74) noted that sureties take on significant
legal obligations, and often without seeking independent legal advice.
Sureties should be encouraged to receive advice regarding this serious
obligation. However, even though Mrs. Norman received advice that the
proposed plan was legal, I have a difficult time seeing how anyone
could have thought that it was wise. It was fraught with obvious risk.
35 Mr. Norman must have appreciated the serious, added
responsibilities that he undertook when his ex-wife delegated all
supervisory responsibility to him. On the one hand, he planned to stay
at Mrs. Norman's home while she was away. However, he flouted his
responsibilities by going on his getaway the same day that Mrs. Norman
left the jurisdiction, leaving their drug addicted and alcoholic son
to his own devices. Not only did Mr. Norman not call his son to check
in on him that day, he failed to answer his cellphone on the numerous
occasions that his son tried to reach him. Had he been available, Mr.
Norman may have been able to circumvent the breach that was soon to
36 In these circumstances, the Crown seeks forfeiture of the
entire amount from Jeremy Norman, and partial forfeiture for the two
sureties. On behalf of Mr. Norman, Mr. Santoro argues that only a
small amount should be ordered forfeit. Ms. Ruffo on behalf of Mrs.
Norman submits that there should be no forfeiture at all, even though
her client left the jurisdiction.
37 Turning to Jeremy Norman first, as soon as his mother left, he
realized that his father was not really keeping a close watch. Instead
of obeying his house arrest condition and returning home right after
his medical appointment, he headed downtown. Taking into account the
fact that he was apprehended right away, before any real consequences
accrued, and given that he has received a criminal conviction for the
very same conduct (see R. v. Howell (2008), 236 C.C.C. (3d) 373 (N.L.
T.D.), less than full forfeiture is appropriate. Still, it must be
made clear to Jeremy Norman and others that failing to abide by bail
orders will have serious ramifications. I order forfeiture in the
amount of $10,000.
38 As for Mrs. Norman, I note that she was a diligent surety
before leaving on vacation. I am satisfied that she thought that, from
a legal perspective, she was doing the right thing. Legality aside, it
was still an imprudent and risky arrangement to make. She undermined
the bail order by compromising her own ability to monitor her son's
behaviour. The public was needlessly exposed to the risk of a violent
offender. In all of the circumstances, I order forfeiture in the
amount of $7,500 as being appropriate. Had Mrs. Norman not sought
legal advice, the amount might have been much greater. Anything less
would fail to vindicate the "pull of bail" in the circumstances.
39 On this hearing, Mr. Norman can derive no benefit from Mrs.
Norman's legal advice. Wrongly, Mrs. Norman entrusted her
responsibilities to Mr. Norman when she went away. He flouted his
responsibilities on the very first day of this imprudent arrangement.
He knew that his son has a violent past and was facing a very serious
offence of violence (while intoxicated). Jeremy Norman required
intensive supervision. These types of conditions must be taken
seriously by sureties. Mr. Norman offered no real excuse for his lack
of vigilance. He decided to put leisure activities ahead of his
obligations as a surety. The only way to emphasize the importance of
compliance in these circumstances is to order forfeiture in a
substantial amount. Accordingly, I order Mr. Norman also to forfeit
$7,500 for exposing the community to the risk of re-offending by his
40 For the foregoing reasons, I order that Jeremy Norman forfeit
$10,000. I order that Mrs. Norman forfeit $7,500. I also order that
Mr. Norman forfeit $7,500. These amounts are individual, not joint and
G. TROTTER J.
1 Jeremy Norman has since entered a plea of guilty to this offence and
2 In fact, the recognizance did not permit Jeremy Norman to attend
this appointment by himself. While Condition #3 required him to
provide his mother with a list of his medical "appointments",
Condition #6 only permitted Mr. Norman to attend to medical
"emergencies" by himself. His appointment that day was not an
emergency - it was a scheduled appointment to address infected
toenails. According to Condition #6, he was required to attend with
one of his sureties.
3 If the Crown consents to the variation, the application could
proceed more expeditiously before a justice or a judge under s. 523(2)
of the Criminal Code.