Forfeiture of bail

Today's decision in Canada (Attorney General) v. Horvath, 2009 ONCA 732 is an important judgment regarding forfeiture of bail. The decision is lengthy but the key findings follow:



[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.



[53] Second, when hearing forfeiture applications, courts should remember that a bail order is a court order, and it is not open to the surety to mount a collateral attack on the appropriateness of that order. There was some hint of this approach in the Mirza case, the suggestion being that the $500,000 surety was out of proportion to the nature of the fraud and was excessive. There were procedures in place that Adnan or his sureties could have utilized if they considered the order to be inappropriate. Adnan could have sought review of the order. Additionally, of course, the Mirzas were not required to enter into the recognizance, and even after having done so they could have applied to be relieved as sureties in accordance with ss. 766 and 767 of the Criminal Code.



[54] Finally, it appears that it is open to the court to make a conditional order that the recognizance be forfeited unless the accused is taken into custody by a certain date: see Miller.