R. v. Bal (T.S.),

• Jurisdiction: Manitoba
• Judge: Joyal
• Neutral Citation: 2014 MBQB 48
• Citation: (2014), 302 Man.R.(2d) 244 (QB),2014 MBQB 48,302 ManR(2d) 244,(2014), 302 ManR(2d) 244 (QB),302 Man.R.(2d) 244
• Date: 13 March 2014
• Court: Court of Queen's Bench of Manitoba (Canada)

R. v. Bal (T.S.) (2014), 302 Man.R.(2d) 244 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. MR.024

Her Majesty The Queen (respondent) v. Tirath Singh Bal (accused/applicant)

(CR 11-01-31519; 2014 MBQB 48)

Indexed As: R. v. Bal (T.S.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Joyal, C.J.Q.B.

March 13, 2014.

Summary:

The accused was granted interim release on terms that included a recognizance of $10,000 and cash bail of $50,000. He failed to appear on October 31, 2011. The presiding judge issued a warrant and noted default on the accused's recognizance. An estreatal hearing was held. The accused did not attend. The court ordered forfeiture of the $60,000. The accused applied to set aside the order.

The Manitoba Court of Queen's Bench dismissed the application.

Courts - Topic 2123

Jurisdiction - Trial jurisdiction - Rehearing and reconsideration of decisions - [See second and third Criminal Law - Topic 6947 ].

Courts - Topic 2186

Jurisdiction - Loss or termination of jurisdiction upon fulfilling function (functus officio) - Prosecutions or criminal trials or matters - [See third Criminal Law - Topic 6947 ].

Criminal Law - Topic 4821

Appeals - Indictable offences - Right of appeal - General - [See first Criminal Law - Topic 6947 ].

Criminal Law - Topic 6947

Recognizances and undertakings - Enforcement - Forfeiture and estreatment - The accused was granted interim release on terms that included a recognizance of $10,000 and cash bail of $50,000 - He failed to appear in court as required on October 31, 2011 - The presiding judge issued a warrant and noted default on the accused's recognizance - An estreatal hearing was held - The accused did not attend - The court ordered forfeiture of the $60,000 - The accused applied to set aside the order - The Manitoba Court of Queen's Bench dismissed the application, finding that the court lacked jurisdiction to relieve the accused from its order of estreatal - The accused's application was not an appeal and could not be considered an appeal - The Criminal Code did not provide for an appeal from a forfeiture order - It was reasonable to accept that Parliament had made an intentional and purposeful decision not to provide any form of appeal from such an order - The accused could apply for leave to appeal directly to the Supreme Court of Canada under s. 40(1) of the Supreme Court Act - See paragraphs 33 to 37.

Criminal Law - Topic 6947

Recognizances and undertakings - Enforcement - Forfeiture and estreatment - The accused was granted interim release on terms that included a recognizance of $10,000 and cash bail of $50,000 - He failed to appear in court as required on October 31, 2011 - The presiding judge issued a warrant and noted default on the accused's recognizance - An estreatal hearing was held - The accused did not attend - The court ordered forfeiture of the $60,000 - The accused applied to set aside the order - The Manitoba Court of Queen's Bench dismissed the application, finding that the court lacked jurisdiction to relieve the accused from its order of estreatal - Jurisdiction could not be found by conceiving of this application as an application for a prerogative writ - The decision in question was made by the superior court to which the accused now applied - In such circumstances, there could be no review based on an allegation of jurisdictional error - See paragraph 38.

Criminal Law - Topic 6947

Recognizances and undertakings - Enforcement - Forfeiture and estreatment - The accused was granted interim release on terms that included a recognizance of $10,000 and cash bail of $50,000 - He failed to appear in court as required on October 31, 2011 - The presiding judge issued a warrant and noted default on the accused's recognizance - An estreatal hearing was held - The accused did not attend - The court ordered forfeiture of the $60,000 - The accused applied to set aside the order - The Manitoba Court of Queen's Bench dismissed the application, finding that the court lacked jurisdiction to relieve the accused from its order of estreatal - The court rejected the accused's assertion that the court had inherent jurisdiction to reopen this matter as it had not yet been heard on its merits - In criminal matters, a court had jurisdiction to reconsider a matter before a formal order was entered, but not thereafter - This rule was rooted in the need for finality in criminal proceedings - As the formal order had been entered, the court was functus - Further, the order was made after a consideration of the merits - See paragraphs 39 to 46.

Criminal Law - Topic 6947

Recognizances and undertakings - Enforcement - Forfeiture and estreatment - The accused was granted interim release on terms that included a recognizance of $10,000 and cash bail of $50,000 - He failed to appear in court as required on October 31, 2011 - The presiding judge issued a warrant and noted default on the accused's recognizance - An estreatal hearing was held on January 23, 2012 - The accused did not attend - The court ordered forfeiture of the $60,000 - The accused applied to set aside the order, submitting fresh evidence of his acquittal on June 20, 2013 on a failure to appear charge - The Manitoba Court of Queen's Bench dismissed the application, having found that the court lacked jurisdiction to relieve the accused from its order of estreatal, held that the application would have been dismissed on the merits as well - The accused was properly served and had notice of the estreatal proceedings - At the time of the hearing, the accused was at large and a warrant for his arrest was outstanding - The failure to appear charge was not laid - The court was entitled to rely on the certificate of default as evidence of default in the absence of evidence to the contrary - The estreatal order was properly granted - See paragraphs 47 to 56.

Criminal Law - Topic 6953

Recognizances and undertakings - Enforcement - Procedure - The accused was granted interim release on terms that included a recognizance of $10,000 and cash bail of $50,000 - He failed to appear in court as required on October 31, 2011 - The presiding judge issued a warrant and noted default on the accused's recognizance - An estreatal hearing was held - The accused did not attend - The court ordered forfeiture of the $60,000 - The accused applied to set aside the order - At issue was the admission of the accused's fresh evidence regarding his subsequent acquittal on the charge of failing to appear - The Manitoba Court of Queen's Bench held that the evidence was admissible - The evidence could not have been adduced at the estreatal hearing - It was potentially relevant, reasonably capable of belief and could reasonably have affected the result - However, the central issue here was the court's jurisdiction to revisit its own order of estreatal - Fresh or new evidence seldom, if ever, assisted a court on a preliminary question of jurisdiction - See paragraphs 23 to 27.

Criminal Law - Topic 6953

Recognizances and undertakings - Enforcement - Procedure - [See first, second and third Criminal Law - Topic 6947 ].

Criminal Law - Topic 7102

Extraordinary remedies - When available - [See second Criminal Law - Topic 6947 ].

Criminal Law - Topic 7480

Summary conviction proceedings - Appeals - General - Right of appeal - [See first Criminal Law - Topic 6947 ].

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 24].

R. v. Coles (1982), 2 C.C.C.(3d) 65 (B.C.C.A.), refd to. [para. 33].

Ontario (Minister of Justice) v. Mirza et al. (2009), 255 O.A.C. 109; 2009 ONCA 732, refd to. [para. 33].

Canada (Attorney General) v. Horvath - see Ontario (Minister of Justice) v. Mirza et al.

R. v. Aw (F.S.) (2008), 440 A.R. 323; 438 W.A.C. 323; 2008 ABCA 376, refd to. [para. 33].

R. v. Adams (J.R.), [1995] 4 S.C.R. 707; 190 N.R. 161; 178 A.R. 161; 110 W.A.C. 161, refd to. [para. 36].

R. v. Blaker (1983), 6 C.C.C.(3d) 385 (B.C.C.A.), refd to. [para. 41].

R. v. Hamilton (E.) (1997), 98 O.A.C. 363; 33 O.R.(3d) 202 (C.A.), refd to. [para. 41].

R. v. E.H. - see R. v. Hamilton (E.).

R. v. Malicia (A.) (2006), 216 O.A.C. 252; 82 O.R.(3d) 772 (C.A.), refd to. [para. 42].

Counsel:

Janna A. Hyman, for the respondent;

Sarah M. Harvey, for the accused/applicant.

This application was heard by Joyal, C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 13, 2014.