



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2017 ONCA 229

DATE:  20170321

DOCKET: M46177

Epstein J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Applicant

and

Michael H. Wilson,
Taylor Wilson
, Rosemary
    Wilson, Marrida Yusuf and
Christopher Gould

Respondents

Adrienne Rice, for the applicant

Taylor Wilson and Christopher Gould, acting in person

Heard: November 23, 2016

Epstein J.A.:

[1]

In separate proceedings, this court released
    Michael Wilson on recognizances with sureties, pending a hearing in this court
    concerning efforts to extradite Michael back to the United States to face
    criminal charges. His two cousins, Taylor Wilson and Christopher Gould, his
    mother, Rosemary Wilson and his then girlfriend, Marrida Yusuf agreed to be
    sureties for a total recognizance of $937,000, of which Taylor was responsible
    for $500,000 and Christopher for $10,000.

[2]

Michael did not surrender in accordance with the
    terms of his recognizance. In fact, he escaped to Vietnam just before the date
    set for his hearing. The Minister of Justice now seeks orders that the
    recognizances entered into by Taylor and Christopher be forfeited in full,
    pursuant to s. 771 of the
Criminal Code
, R.S.C. 1985, c. C-46.  Taylor
    and Christopher argue that they should not be required to forfeit any portion
    of their recognizances, or at least not the full amount. While this matter was
    under reserve Michael was returned from Vietnam to the United States to face
    the charges there. I will deal with this development later in these reasons.

[3]

I have decided to grant the application in part.  I order that Taylor
    forfeit the amount of $200,000 and Christopher the amount of $3,000.

BACKGROUND

[4]

Michael was charged in the United States with
    multiple counts of fraud and money laundering, following an investigation by
    the FBI into an investment scheme that he ran from 2008 to 2009. Michael gained
    access to substantial amounts of money, by promising people that he would
    invest their money at unrealistic rates of return. Michael is alleged to have
    fraudulently diverted to his own use funds totaling approximately $8,000,000, that
    he spent on houses, cars, artwork and vacations, rather than on investments.

[5]

On July 19, 2010 Michael fled to Canada, shortly
    after the United States Attorneys Office sent him a letter notifying him that
    criminal charges were being laid against him.

[6]

On July 23, 2013 Michael was arrested in Toronto on an
    extradition warrant.

Bail Pending the Extradition Hearing

[7]

Michael applied for bail pending his extradition
    hearing. The four sureties identified above came forward in support of his
    application: Taylor, Christopher, Rosemary and Marrida.

[8]

On August 13, 2013 Garton J. granted Michael
    judicial interim release. Michaels release was ordered on strict terms. He was
    to reside with Taylor at his residence on Wellington Street in Toronto, and to notify
    the court in writing within 24 hours of any change of Taylors address and
    inform the officer in charge a month in advance of any chance in Taylors
    address.  In addition, he was to remain in Taylors unit at all times between
    10 p.m. and 9 a.m., and could only leave between 9 a.m. and 10 p.m. if in the
    company of one or more of his sureties. It was also a condition of his bail
    that Michael deposit his passport and any other travel documentation with the
    police, and not apply for another one.

[9]

On September 3, 2013 Michael entered into a
    recognizance in the amount of $937,000, consisting of a cash deposit of
    $300,000 and pledges by his sureties in the amount of $500,000 by Taylor,
    $125,000 by Rosemary, $10,000 by Christopher, and $2,000 by Marrida.
[1]

[10]

In her reasons, Garton J. reviewed the adequacy
    of the proposed plan of release. She acknowledged the Crowns argument that
    Rosemary was not an appropriate surety because her status in Canada was
    uncertain and her visitors visa was set to expire in March 2014. Garton J.
    concluded:

If Rosemary Wilson were being proposed as the
    sole surety in this matter, I would perhaps give more weight to the concerns
    raised by the respondent with respect to her suitability as a surety. However,
    pursuant to the plan of release, she is only one of four proposed sureties. It
    is proposed that Taylor Wilson be the surety with the heaviest financial
    obligation  $500,000  which represents a large percentage of the equity in
    the homes that he owns. He has no other assets. In my view, it is appropriate
    in the circumstances that Taylor [ ] also bear the heaviest burden in terms of
    supervising [Michael] and that [Michael] should live with him under house
    arrest and with strict conditions. Such terms will adequately address the
    concerns in this case with respect to both the primary and secondary grounds.

[11]

On January 23, 2014 Michaels recognizance was
    varied to allow him to live with Rosemary in a unit in the same building in
    which Taylor lived. Otherwise, the terms of Michaels release were not varied.

[12]

On October 20, 2014 OMarra J. ordered that Michael
    be committed to custody pursuant to s. 29 of the
Extradition Act
, S.C. 1999, c. 18,
to
    await the Minister of Justices decision on surrender. On March 11, 2015 the
    Minister of Justice ordered Michaels surrender to the United States.

Bail Pending Appeal and Judicial Review

[13]

Michael applied for bail pending his appeal and
    judicial review of the committal order and the surrender order.  On October 23,
    2014 I ordered Michaels release on recognizance on almost the same terms as
    the release order from the Superior Court. However, the residence and curfew conditions
    were changed. The requirement that Michael live with Taylor in his unit on
    Wellington Street was reinstated. Michaels curfew condition was also changed
    to allow him to leave this residence between 10 p.m. and 9 a.m., in the company
    of one or more of his sureties. It was a term of his release that he was to
    surrender into custody by 6 p.m. on the day before the hearing of his appeal
    and judicial review, or on January 20, 2015 whichever came earlier.

[14]

The judicial interim release was varied twice to
    extend the date of surrender. The last extension was granted by Pardu J.A. on
    May 6, 2015. It required Michael to surrender into custody by 4 p.m. on the day
    before the hearing of the appeal and judicial review. The appeal and judicial
    review were scheduled to be heard by this court on February 11, 2016.

Breach of Recognizance and Disappearance

[15]

Michael reported at the police station regularly
    as required from September 3, 2013 to February 2, 2016 the final date on which
    he is recorded as reporting.

[16]

On or about February 5, 2016 Michael flew to
    Vietnam with Marrida, Rosemary and his three dogs, in a private plane he had
    chartered.

[17]

Taylor sent text messages to both Rosemary and
    Michael on February 10, 2016 to coordinate Michaels attendance in court, asking
    Rosemary if he should pick her and Michael up in the morning. Rosemary
    responded by text that Michael was going to spend the night at her home, and
    that they would be going to court together in the morning with Marrida. Later
    that day, Taylor and Michael exchanged texts confirming that they would see
    each other in the morning.

[18]

Michael did not surrender into custody on
    February 10, 2016 as required by the terms of his release order. The following
    day - the day on which the appeal and judicial review were scheduled to be heard
    - Michaels counsel informed Taylor that Michael had failed to surrender
    himself into custody. Taylor advised Christopher of Michaels default.

[19]

When Michael failed to appear on February 11,
    2016 Roberts J.A. dismissed his appeal and application for judicial review, and
    issued a warrant for his arrest. She also ordered that the recognizance in the
    amount of $937,000 be noted in default.

[20]

On June 29, 2016 Detective Constable Inal of the
    Toronto Fugitive Squad was informed that Interpol had arrested Michael in
    Vietnam.

The Applicable Principles

[21]

A forfeiture hearing is governed by s. 771 of
    the
Criminal Code
, which provides that after
    giving the parties an opportunity to be heard, the presiding judge may in his
    discretion grant or refuse the application and make any order with respect to
    the forfeiture of the recognizance that he considers proper. Accordingly,
    whether to grant relief from forfeiture and the quantum of relief is within the
    discretion of the presiding judge.

[22]

The onus is on the sureties to show why, on a
    balance of probabilities, the recognizance should not be forfeited:
Canada
    (Attorney General) v. Horvath
, 2009 ONCA 732,
248 C.C.C. (3d) 1,

at para. 27; Gary Trotter,
The Law of Bail in Canada
, 3d ed. (Toronto: Carswell, 2016), at pp. 13-16. 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:
Horvath
, at para. 52.

[23]

In
Horvath
, the
    leading case in Ontario on forfeiture of a recognizance, this court recognized
    the preeminent importance of the pull of bail in the context of forfeiture.
    The court explained at para. 41:

[T]he pull of bail is an important factor
    that serves as a reminder that, in attempting to do what is just and fair
    towards the sureties, the courts must be careful not to undermine the
    effectiveness of the bail system. Our system depends upon accused attending
    court and if accused came to believe that they could fail to attend court
    without their sureties suffering any penalty, the surety system would be
    ineffective... An overemphasis on a suretys lack of fault could undermine the
    pull of bail and have an adverse impact on the criminal justice system, which
    depends upon the accused complying with release conditions.

[24]

However, this court rejected the argument that
    the only way to ensure the effectiveness of the bail system is to adopt a rigid
    rule of total forfeiture absent exceptional circumstances. The court did not
    take this approach as it concluded that a rigid rule of full forfeiture was
    inconsistent with the broad discretion granted in the
Criminal Code
allowing
    the presiding judge to order any forfeiture that is considered appropriate. The
    court recognized that the pull of bail can sometimes be vindicated by something
    less than total forfeiture:
Horvath
, at paras.
    44-45.

[25]

In
Horvath
, at
    para. 51, this court set out a non-exhaustive list of factors to be considered
    in determining whether there should be forfeiture, and in what amount relative
    to the amount in issue. They are:

·

the amount of the recognizance;

·

the circumstances under which the surety entered
    into the recognizance (with an emphasis on whether there was any duress or coercion);

·

the diligence of the surety;

·

the suretys means;

·

any significant change in the suretys financial
    position after the recognizance was entered into and after the breach;

·

the suretys conduct following the breach,
    including efforts to assist authorities in locating the accused; and

·

the relationship between the accused and the
    surety.

[26]

In cases such as this, involving significant
    sums of money, a more searching examination of the circumstances is called for:
    Trotter;
R. v. Jackson
, 2013 ONSC 7761, at
    para. 20. Frequently, such an examination centers on the impact forfeiture
    would have on the suretys financial circumstances.

pRINCIPLES applied

[27]

Without diminishing the importance of a suretys
    obligations to supervise and enforce bail conditions other than attendance in
    court, Taylor, and secondarily, Christopher were primarily responsible for
    ensuring that Michael attended court on the date when the appeal and judicial
    review were set to be heard. In terms of analyzing the degree of the breach of
    recognizance, this case presents the most serious of breaches in that Michael
    did not appear in court and, in fact, left the jurisdiction so as to avoid
    extradition to the United States:
R. v. Hanif
,
    2016 ONSC 7720, at para. 37. As Speyer J. explains in
Romania v.

Iusein
, 2014 ONSC 623, 307 C.C.C. (3d) 266, at para. 26, [a]bsconding is
    more serious than most, if not all, the other breaches of recognizance.

[28]

In their submissions, both Taylor and
    Christopher indicated that they understood the risk they were taking and the
    extent of their potential liability in becoming Michaels surety. They were
    prepared to support their cousin on the basis of friendship, family ties and
    their conviction that Michael appreciated the immense responsibilities they had
    assumed in becoming his sureties. They firmly believed that Michael would not do
    anything that would jeopardize the funds they had advanced.  They had neither
    any reason to suspect their cousin would abscond nor any indication that the
    other two sureties were conspiring with Michael to craft a sophisticated plan
    to abscond.

Taylor

[29]

As noted by Garton J. at the initial bail hearing, Taylor bore the
    heaviest burden in terms of supervising [Michael].  He put up the most money. 
    For most of the period of release, Michael was to live with him.
However, Garton J.s initial release decision and the variations
    that followed, including this courts release orders pending the appeal and
    judicial review, were made in the light of the fact that
Taylor
lived in Toronto approximately 4-5 days every week, and the rest of
    the time lived in London, Ontario for business purposes. It is clear that these
    living arrangements were a significant reason why the court put a multi-surety plan
    in place that contemplated that the other sureties would supervise Michael when
    Taylor was away.

[30]

There is conflicting evidence about Michaels
    living arrangements while on bail.

[31]

The Crown argues that although the release
    orders made in October 2014, January 2015 and May 2015 stipulated that Michael was
    to reside with Taylor, the Toronto Fugitive Squads investigation revealed that
    Michael had actually been living with Rosemary and Marrida in another unit in
    Taylors building, contrary to the terms of his bail.

[32]

Taylor submits that Michael maintained primary
    residence in his (Taylors) unit from October 2014 to February 2016. In support
    of his position, Taylor produced a text to all sureties that he sent following
    the October 2014 release order to ensure that they had a plan in place to
    supervise Michael. In that communication, Taylor explicitly stated that his
    cousin had to live at his (Taylors) home, but that he could spend nights with
    Rosemary and Marrida. The text emphasized that although Michael no longer had a
    curfew, he always had to be with a surety, and could only be alone at Taylors
    house. Taylor also filed an affidavit of Milan Kukolj, a Constable in the
    London Police Services, which stated that he consistently witnessed Michael
    residing with Taylor from September 2013 to January 2016.

[33]

I find it is not necessary for me to resolve whether,
    from October 2014 to February 2016, Michael resided with Taylor, in accordance
    with the terms of his release. Either way, it is clear to me that Taylor
    allowed himself to be increasingly at the mercy of Rosemarys and Marridas
    commitment to their supervisory responsibilities. When Taylor was away from
    Toronto,
he came close to effectively delegating supervisory authority
    to Rosemary and Marrida, in circumstances in which Taylor was unable to assure
    himself that Michael was complying with the conditions of his bail. This
    contradicted the strict conditions of Michaels release given Taylors
    responsibility as primary surety.
Although sureties serve
    voluntarily and can terminate their commitment for any reason, they are not permitted
    to re-write the conditions of release to suit their own circumstances, or to
    delegate their responsibilities to others:
R v.
Norman
,
    2014 ONSC 2005, at paras. 29-30;
Iusein
, at para. 31.

[34]

That said, it is significant that in August 2013
    Taylor sought advice from Michaels lawyers regarding what his obligations were
    when he was out of town.

Michaels
    lawyer advised Taylor to maintain reasonable contact by phone, email or text to
    confirm that Michael was abiding by his conditions. Even though Taylor claims to
    have assiduously followed this advice,
leaving Michael with Rosemary and Marrida for days at a time
    was fraught with obvious risk.
I would echo the
    comments made by Trotter J., as he then was, in
Norman

at para. 34:
[e]
ven
    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
 (emphasis in original). As in
Norman
, the legal advice that Taylor received
    was simply not wise.
The effective transfer of much of Taylors
    responsibility as a surety to Rosemary and Marrida weakened the court-ordered
    surety plan, and compromised Taylors ability to supervise Michael. In the
    circumstances in which he found himself, Taylor should have either applied for a
    variation on a bail review, or rendered Michael into custody.

[35]

Instead, Taylor allowed the situation to worsen.
    And he did so at a particularly crucial time.  He left Toronto for over a week just
    before the appeal and judicial review. In fact, the last time Taylor saw
    Michael was on February 2, 2016. Taylor left town on that day and was away until
    February 10, 2016.  During this critical period, Taylor put himself in a
    position where he could not monitor Michael. Significantly, he was not in a
    position to observe conduct that might have foreshadowed a failure to appear.

[36]

The record demonstrates that as the date of the
    hearing approached, Michael was engaged in activities that, had Taylor been keeping
    a closer watch, he may have learned of. For example, starting in January 2016,
    Michael had been selling furniture and ridding himself of his belongings.  These
    actions may well have alerted Taylor that Michael was planning to abscond.

[37]

Moreover, Taylor did not have any independent
    knowledge of when and where Michael was supposed to surrender into custody.
    Taylor never sought independent information regarding Michaels court dates.
    Rather, he relied on Michael to provide him with updates about the case and
    inform him of important court dates. Taylors approach shows a disregard for the
    obligation the court places on sureties: it is their responsibility to know the
    timing and the circumstances surrounding the accuseds obligations to attend
    court.

[38]

In addition, Taylor did not ensure that Michael
    surrendered himself to police the afternoon before his appeal and judicial
    review, which was an express condition of Michaels recognizance. Taylor
    attempted to coordinate meeting with Michael and Rosemary at the court on the
    day of the hearing, but this did not comply with the condition placed on
    Michael pursuant to the recognizance. The recognizance was clear that Michael
    had to surrender into custody the day before the appeal. Taylor should have
    known that.  He signed the recognizance.

[39]

That said, when Taylor learned that Michael had absconded
    he took immediate action. He reported Michael missing, contacted Christopher,
    and attempted to contact Rosemary and Marrida. Taylor sent Michael, Rosemary
    and Marrida texts encouraging them to return.

[40]

Taylors actions also proved helpful to the
    officers at the Toronto Fugitive Squad who were responsible for investigating
    Michaels disappearance. Taylor shared with them what he had learned about
    Michaels actions in January 2016  his having moved furniture out of Rosemarys
    apartment, given away his belongings, and secretly married Marrida. Taylor
    advised the authorities that, based on his research and his experiences with
    Michael, Michael was likely in Vietnam, Cambodia or Indonesia.
Taylor
    also provided the police with the names of Marrida`s relatives, and
three receipts with Rosemary, Michael and Marridas names on them,
    dated January 13, 2016, for medical kits that one would purchase to travel to
    Asia.

[41]

I now turn to Taylors financial circumstances. Taylor is involved in a
    start-up business. He submits that the $500,000 he pledged represents his whole
    net worth.  However, he does have considerable equity in two properties. At the
    time of the original bail hearing, Michael owned a house in London valued at
    approximately $700,000. The mortgage on the property was $386,000. He also
    owned a loft on 264 Seaton Street, Toronto that he rented out for $6,000 per
    month. The estimated value of the unit at the time was $1,100,000 with a
    mortgage of $648,000. The equity in these two properties totaled about
    $762,000.

[42]

The Crown submits that
Taylors current net worth is
    $1,000,000, which is more than it was
at the time he entered the
    recognizance. The Crown argues that
Taylor has the means to
    fulfill his obligation.

[43]

Applying the principles identified
    above, I have concluded that a forfeiture order should issue against Taylor,
    but not for the full amount.
I come to this conclusion
    based on the following.

[44]

First, the evidence supports a
    finding that at least by the time Taylor agreed to continue to act as Michaels
    surety pending the appeal and judicial review, he knew that Michael had come to
    Canada to avoid prosecution in the United States on serious charges. To Taylors
    knowledge Michael had proven that he had the willingness and capacity to
    abscond.

[45]

Although Taylor played no role in Michaels
    complex escape plans, he was lax in his supervisory obligations. The record
    supports the conclusion that Taylor allowed Rosemary and Marrida to assume some
    of the supervisory responsibilities that were assigned to him under the terms
    of the release order. One of the more serious aspects of Taylors failure to
    meet his obligations as a surety was his near total abdication of responsibility
    to ensure that Michael appeared in court on the date set for the hearing of his
    appeal and judicial review.

[46]

There are, however, factors that militate
    against full forfeiture. Michael was particularly skilful in covering up his
    plans to abscond. He complied with his reporting conditions diligently for over
    two years by checking in at the police station at the beginning of every
    month.  Michaels escape  chartering a private plane showed sophisticated
    planning not easy to detect.

[47]

Furthermore, as previously noted, Taylor did
    seek legal advice from Michaels lawyers regarding complying with the
    conditions of bail when he was out of town.

[48]

Also relevant is the fact that Taylor provided
    considerable assistance to the authorities in their ultimately successful
    efforts to find Michael. And Michael is now back in the United States where he
    is facing the charges against him.  Rosenberg J.A. in
Horvath
, at para.
    60, acknowledged that the apprehension of the fugitive is relevant to the
    determination of what order, if any, should be made against the sureties in an
    estreatment proceeding.

[49]

Taking all of these circumstances into consideration,
    I have concluded that
forfeiture in the amount of $200,000 takes into account the unique
    circumstances of this case, and will adequately ensure the integrity of the
    bail and surety system.  I appreciate that this is a sizeable amount of money.
    But, there is no evidence, beyond a bald statement in his affidavit, that Taylors
    financial situation has changed since he agreed to support Michael, or that
    forfeiture of this amount would create extreme hardship.

Christopher

[50]

Christopher is a professor at Durham College in
    Oshawa. When the release order was put in place, the court was aware that he
    lived and had a job and a family an hour away from where Michael was ordered to
    reside. It was therefore clear that Christopher could not be responsible for
    supervising Michael on a daily basis. The understanding was that a couple of
    times a month he and his children would pick Michael up, spend the day with him,
and then
return him to Taylors home. Christopher undertook to
    ensure that Michael was constantly with him, when they spent time together.

[51]

That said, the record makes it clear that as the
    date of the appeal and judicial review approached, Christopher made no efforts
    to see that Michael fulfilled his primary obligation  to show up for the
    hearing.  He did not appear to take any steps to understand what Michaels
    responsibilities were, or what his responsibilities were in ensuring Michael
    met his. This nonchalant attitude is particularly serious given that, like
Taylor, Christopher knew that his cousin had fled from
    prosecution in the United States.  In these circumstances, as the date of the
    hearing approached Christopher should, at the very least, have taken steps to
    ensure that he knew what his obligations were and that he did everything in his
    power to meet them.

[52]

But he did not.  After January
    2016 Christopher had no further contact with
Michael. 
    In fact, Christopher did not even know when Michael was required to surrender
    into custody. Moreover, there is no evidence that he reached out to the other
    sureties to ascertain what they were doing to ensure Michael complied with this
    most important term of his recognizance.

[53]

Immediately after he learned that Michael had
    breached his bail conditions by failing to appear in court, Christopher
    contacted the Durham Regional Police and the Toronto Police Service. He was
    told that he had to drive to Toronto to notify the authorities of Michaels
    breach of recognizance. He was unable to go to Toronto that day due to child
    care responsibilities, but did file a request to be removed as Michaels surety
    a few days later when he did get to Toronto.

[54]

In my analysis of the Crowns request that
    Christopher forfeit the full $10,000, the most significant consideration is the
    change in his financial circumstances since becoming a surety.  Since that
    time, Christopher and his wife have separated. They are currently in the midst
    of divorce proceedings.   Christopher claims that the separation has left him
    with no assets other than one property valued at approximately $490,000 with a mortgage
    of $390,000. He has two dependent children, one who has significant medical
    needs.  Christopher pays monthly child and spousal support.

[55]

Again, I have concluded forfeiture
    is called for. I say this on the basis of Christophers failure to pay more
    than a modicum of attention to his responsibility to ensure that Michael turned
    himself in on the day before the hearing.

[56]

However, in determining the amount
    to be forfeited I have taken into account that Christopher was not the primary
    surety, and the significant change in Christophers financial situation since
    the time he agreed to help Michael. While Christopher does have equity in his
    home, the evidence supports the conclusion that all available resources are
    being directed toward the increased costs of supporting his family.

[57]

Christopher does not appear to
    have had anything to do with Michaels abscondment.  As in the case of Taylor,
    he was not complicit, rather, neglectful.  That said, Michaels abscondment delayed
    rather than denied justice. The fact that he is in the United States awaiting
    trial merits some mitigation of the forfeiture order.

[58]

In the light of these circumstances I order that
    Christopher forfeit $3,000.

DISPOSITION

[59]

I allow the application in part and order forfeiture of
    the following amounts: Taylor Wilson: $200,000 and Christopher Gould: $3,000.

[60]

I feel compelled to comment on the assistance
    Taylor and Christopher offered the court in their capacity as self-represented
    litigants. In the almost 25 years I have been a judge, their submissions
    represent the gold standard in the capacity of self-represented litigants to
    assist the court. I thank them.

Released: March 21, 2017 ("DW")

"Gloria
    Epstein J.A."





[1]

On September 20, 2016 Justice MacFarland ordered that Rosemary
    forfeit the $125,000 she had put forward, that Marrida forfeit the $2,000 she
    had put forward and that Michael forfeit the $300,000 deposit he had left at
    Superior Court.


