New & Notable: The Pull of Bail

Jeffery Norman was on the hook for a lot of money. He pledged $30,000 to secure his release on bail. Norman also had very generous parents who pledged significant amounts totalling $30,000 as sureties on their son’s release. All Norman had to do was abide by his release conditions. He did not and the Crown sought forfeiture of the pledged amounts: 2014 ONSC 2005.

Norman’s actions leading ultimately to this forfeiture hearing were violent and heinous. Norman had been convicted of manslaughter and sentenced to 8 years imprisonment, in addition to the 4 years of pre-sentence custody: [2005] OJ No 1073 (SCJ). While on parole Norman committed a serious, random and vicious act of violence on a complete stranger. The woman was jumped from behind, taken to the ground and repeatedly punched.  

As Trotter J pointed out “surprisingly, Mr. Norman was ordered released on bail (…) 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” [@para 5].

The conditions of release included a condition of house arrest which required Norman to be in his 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 office, medical emergencies, or in the direct company of either surety” [@para 6].

Norman denied the breach and testified at his trial that in fact he had been working during the day, was on his way to an AA meeting and had taken a circuitous route to get there to beat the 8:30pm traffic. In fact, although there was a meeting at the location Norman indicated, it was to take place entirely in Portuguese - a language neither spoken nor understood by Norman. In finding Norman guilty, Clements J aptly pointed out that Norman’s explanation simply “made no sense” [@para 10].

Norman declined to participate in the estreatment hearing; both sureties, Norman’s parents, opposed forfeiture and were represented by counsel.

Before turning to the specifics of Norman’s case, Trotter J, referred to a recent case from the Superior Court (Romania v Iusein, 2014 ONSC 623) and helpfully set out some of the governing principles. They are as follows:

  1. The onus is on the surety to show why forfeiture is not appropriate.
  2. The preeminent concern for the court is the preservation of the moral pressure or 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.”
  3. Overemphasizing the surety’s lack of fault can undermine the pull opf bail and adversely impact the criminal justice system. The diligence of the surety, however is a relevant consideration.
  4. The estreatment judge has a wide discretion. There is no rule requiring total forfeiture. However, the vast majority of cases which involve a relatively small sum, nothing less than total forfeiture will usually suffice. [@para 20]

Turning to the facts before the court Trotter J noted that one of the sureties had effectively delegated her responsibilities to the second surety when she left the country on holidays. Prior to leaving on holidays Mrs Norman made arrangements wither her ex-husband. Before doing so however she consulted with counsel and received legal advice which she followed. Trotter J held that:

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. [i]n 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.  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. [@para 32]

In recognizing that Norman was apprehended before any real consequences flowed from the breach of the house arrest condition and that he received a criminal conviction for the same conduct, the Court ordered forfeiture of $10,000 of Norman’s $30,000 bond.

Notwithstanding the fact that Mrs Norman received legal advice prior to departing on her holiday, Trotter J found that: “she undermined the bail order by compromising her own ability to monitor her son’s behaviour” [@para 38]. As a result of the needless risks the public was exposed to the Court ordered $7,500 of the $20,000 bond to be forfeited [@para 38].

Trotter J had no sympathy for Mr. Norman Sr finding that:

he knew 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 (sr.) 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 unsupervised son. [@para 39]