



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Biya, 2022 ONCA 99

DATE: 20220201

DOCKET:
M53046 (C66597)

Lauwers
    J.A. (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

(Moving
    Party)

and

Abadula
    Biya

Appellant

(Responding
    Party)

Abadula Biya, acting in person

Lula Ahmed, acting in person

Biya Abajabel, acting in person

Jeremy Tatum, for the moving party

Heard: January 13 and 28, 2022 by video
    conference

REASONS
    FOR DECISION

[1]

Abadula Biya was convicted and sentenced for charges
    relating to the unauthorized possession of a firearm and ammunition, possession
    of a Schedule 1 controlled substance (MDEA) for the purposes of trafficking,
    and possession of the proceeds of crime. His appeal was successful:
R. v.
    Biya
, 2021 ONCA 171. The conviction was quashed, and a new trial was
    ordered.

[2]

The Crown applies for forfeiture of the July 16,
    2020 release order that Mr. Biya and his sureties entered into under s.
    771 of the
Criminal Code
, R.S.C.
    1985, c. C-46
. Mr. Biyas two named sureties are his father, Biya
    Abajabel, and his mother, Lula Ahmed. The sureties pledged $20,000 in support
    of Mr. Biyas release.

[3]

The sureties confirmed when entering into the
    release orders their understanding that: [F]ailure on the part of [Mr. Biya]
    to follow any of the conditions in this release order could lead to the
    forfeiture of the amount of money that has been promised or deposited.

[4]

One of the terms of the release order was:

You must remain in your residence at all times
    except:

i.

for medical emergencies involving you or a
    member of your immediate family (spouse, child, parent, sibling) or

ii.

for attending court, or meeting with your
    lawyer, or for purposes of complying with this or any other court Order or

iii.

for purposes of travelling directly to, from and
    while at work or school or

iv.

when you are in the presence of your surety.

[5]

The Crown states that on at least October 3 and
    6, 2020, Mr. Biya did not comply with that condition of the release order and breached
    his bail. On December 16, 2020, he pleaded guilty to the October 3, 2020 breach
    charge. The October 6, 2020 breach facts, and other facts forming part of the
    circumstances of the offence, were read into the record as part of the plea
    agreement and the sentence to be imposed. Mr. Biya was sentenced to 59 days of
    custody less 29 days of enhanced pre-trial custody credit.

[6]

On November 12, 2021, this court endorsed the
    default of the July 16, 2020 release order. Section 771 of the
Criminal
    Code

mandates a forfeiture
    hearing for the $20,000 that Mr. Biya and his sureties pledged in support of
    his release on bail pending appeal. They must now show cause why full
    forfeiture should not be ordered in the circumstances.

[7]

A concern came to light in the writing of this
    decision, which led the Executive Legal Officer of the court to send a letter to
    the Crown, Mr. Biya and his parents inviting further submissions. The letter
    stated:

The order dated July 16, 2020 indicates
    at p. 2 that the sureties promised to pay the amount of $20,000 (without
    deposit). However, while the order notes a corresponding $20,000 obligation on
    the part of Mr. Biya, the box confirming that obligation has not been checked
    off.

The Crown seeks to have the forfeiture
    enforced against Mr. Biya as well as his parents, despite the absence of a
    check in the box for Mr. Biya.

[8]

In the release order I made on March 15, 2019,
    and in subsequent release orders by Nordheimer J.A. dated October 4, 2019 and by
    Paciocco J.A. dated December 13, 2019, the following provision appears:

IT IS ORDERED that the said appellant [Mr.
    Biya] shall forthwith be brought before a Justice of The Peace, and upon
    entering into a recognizance in the amount of $20,000.00, without a deposit,
    with the following sureties Biya Abajabel $20,000.00, Lula Ahmed $20,000.00, be
    admitted to bail upon the following conditions

[9]

An amendment to s. 515 of the
Criminal Code
came into force on December 18, 2019, which provided that it was no
    longer mandatory that the accused promise to pay a specified amount for failing
    to comply with the conditions of the order. This led to a change in the form of
    the release order. The order of Hourigan J.A. dated April 9, 2020 and, as the
    Executive Legal Officers letter notes, the order of Pardu J.A. dated July 16,
    2020 did not check off the box requiring Mr. Biya to be personally liable
    for the specified amount.

[10]

I do not accept Mr. Biyas submission that he
    always understood that it was only the sureties and not him who were responsible
    for forfeiture. All of the release orders other than the last two make it very
    clear that he had personal financial obligations.

[11]

In the synopsis read into the record on Mr.
    Biyas prosecution for breaching his recognizance, the additional information
    provided to the court states:

From September 5th, 2019 to October 6th, 2020
    police have conducted 12 bail compliance checks in which they spoke to the
    accuseds parents (sureties) and his brother. The family members told police
    that the accused was at work at Birchmount and Eglinton. The accused has not
    worked at his place of employment since August of 2019.

[12]

This was a breach and is within the time frame
    of my original release order, dated March 15, 2019, when Mr. Biya was plainly
    liable to pay the recognizance upon a breach. Mr. Biya admitted to the truth of
    the facts in the synopsis when he pleaded guilty to breaching his recognizance.
    In the circumstances, I conclude that I have jurisdiction to require forfeiture
    of bail from Mr. Biya and his parents.

[13]

The legal principles applicable to bail
    forfeiture were set out in this courts decision in
Canada (Attorney
    General) v. Horvath
, 2009 ONCA 732, 248 C.C.C. (3d) 1 and summarized by
    Durno J. in
R. v. Griffiths
, 2019 ONSC 4044, at paras.  22-31.

[14]

The onus is on the sureties to show on a balance
    of probabilities that they should not be required to pay the full amount:
Horvath
,
    at para. 27. The court has discretion in determining how much of the amount
    should be forfeited:
Horvath
, at para. 5. Trotter J.A., in his text,
The
    Law of Bail in Canada
, loose-leaf, 3rd ed. (Toronto: Thomson Reuters
    Canada, 2010), describes the role of sureties as effectively guarantee[ing] that
    the accused will attend in court and will abide by the conditions imposed: at para.
    6-8. The pull of bail is an expression used to capture the expectation that an
    offender will comply with the bail conditions rather than subject the sureties
    to personal liability:
Horvath
, at para. 40. The realistic prospect of
    actual forfeiture when bail is breached is needed to maintain the effectiveness
    of the system:
Horvath
, at para. 41. Trotter J.A. noted,
at
para. 13-1, that the effect of
    potential forfeiture would be seriously diluted by widespread knowledge that
    the procedure is only invoked sporadically.

[15]

However, the court noted in
Horvath
, at
    paras. 45-46, that where a large amount is posted for bail, the pull of bail
    can sometimes be satisfied with less than full forfeiture while maintaining the
    credibility and effectiveness of the bail system.

[16]

In
Horvath
the court noted, at para. 51,
    that the diligence of the surety is only one factor relevant to a forfeiture
    hearing. Durno J. assembled a list of factors in
Griffiths
,

at para. 31, that a judge may consider
    at a forfeiture hearing. I pick out several that are relevant to this
    proceeding:

(a)

The nature of the relationship between the sureties
    and the accused, as well as the level of control they had over the accuseds
    behaviour;

(b)

The sureties intended role in the supervision
    where more than one surety signs;

(c)

The sureties diligence;

(d)

The sureties post-breach conduct, especially
    attempts to assist the police in apprehending the accused;

(e)

The amount of the recognizance;

(f)

The sureties means at the time the release
    order was signed; and

(g)

Any significant change in the sureties
    financial situation between the time the recognizance was entered and the
    breach, and particularly between the breach and the forfeiture hearing.

[17]

Mr. Biya, his father and his mother all spoke at
    the hearing.

[18]

Mr. Biya was contrite and remorseful. He admitted
    to actively misleading his parents about his going to school and his working
    long after he ceased both activities. He has been struggling to find a job, but
    his criminal record now stands in the way, quite apart from the economic
    conditions and the influence of COVID-19. He is hoping to return to school and
    in the meantime is looking for a minimum wage job. He would be well advised to
    speak to the John Howard Society, Dixon Halls Employment Services, or The
    Career Foundation.

[19]

His mother Ms. Ahmed stated that she is on
    disability, and that she and her family, including four other children, have
    come through a bout with COVID-19. Mr. Biyas father Mr. Abajabel is
    currently 68 years old and retired. This is a poor family. Both Mr. Biyas
    parents were apologetic. His mother explained that she drove him to school and
    to work on occasions in the early days of his bail, but that both she and her
    husband trusted their son.

[20]

It is quite clear to me that full forfeiture,
    which the Crown is not seeking in this case, would be a crushing financial
    blow, one from which this family could not recover. While maintaining the
    credibility of the bail system means that forfeiture must have teeth, that is a
    matter of proportionality.

[21]

The Crown submits that Mr. Biyas parents could
    have been more diligent in their supervision, but he believes that they assisted
    in locating Mr. Biya and having him present himself to the police for arrest.

[22]

In my view, Mr. Abajabel and Ms. Ahmed must bear
    some financial responsibility for failing to attend to their duties with
    sufficient diligence. I also believe that Mr. Biya himself must pay something.
    But the familys circumstances, and the general economic conditions, do not
    justify a large forfeiture.

[23]

I therefore order Mr. Biya to pay by way of
    forfeiture of bail $1,500 over the course of two years, subject to further
    order of the court if his financial circumstances change, and I order that Mr.
    Abajabel and Ms. Ahmed each forfeit the sum of $750 and pay the amount over one
    year, subject to further order of this court if their financial circumstances
    change. I will remain seized of this matter and require the reattendance of the
    parties before me at a date to be fixed by the court in about six months.

[24]

Mr. Biya may be served at his email address:  *
    . His parents may be served at the email address provided to the court. If
    those email addresses change in the future, Mr. Biya and his parents must email
    the court at
coa.e-file@ontario.ca or call the Motions
    Desk at 416-327-5025
.

P.
    Lauwers J.A.


