R. v. Tymchyshyn (D.), (2015) 314 Man.R.(2d) 1 (QB)

JudgeBond, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateFebruary 05, 2015
JurisdictionManitoba
Citations(2015), 314 Man.R.(2d) 1 (QB);2015 MBQB 23

R. v. Tymchyshyn (D.) (2015), 314 Man.R.(2d) 1 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.015

Her Majesty The Queen (applicant) v. Dennis Tymchyshyn (respondent)

(CR 13-01-32452; 2015 MBQB 23)

Indexed As: R. v. Tymchyshyn (D.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Bond, J.

February 5, 2015.

Summary:

An accused was charged with murder. In January 2009, the accused's father signed as surety on a recognizance of bail in the amount of $100,000. The accused breached the conditions of the recognizance in November 2012. The Crown sought forfeiture of the bail and argued that it should be in the full amount of the $100,000 recognizance. The father asked that he be relieved from forfeiture altogether or that only a portion of the recognizance amount be forfeited.

The Manitoba Court of Queen's Bench ordered forfeiture in the amount of $75,000.

Criminal Law - Topic 6947

Recognizances and undertakings - Enforcement - Forfeiture and estreatment - The Manitoba Court of Queen's Bench stated that "The moral pressure brought to bear on the accused by the risk of forfeiture assumed by his or her family member or friend as surety is essential to the functioning of the bail system. However, ... the effectiveness of the 'pull of bail' may be maintained by something less than full forfeiture in some cases. In particular, where the recognizance amount is significant, forfeiture of the entire amount may not be necessary to maintain the integrity of the bail system. Whereas when the recognizance involves a lesser amount, it may be that nothing less than forfeiture of the entire amount would suffice." - See paragraph 14.

Criminal Law - Topic 6947

Recognizances and undertakings - Enforcement - Forfeiture and estreatment - The Manitoba Court of Queen's Bench summarized some of the factors to be considered when determining the amount of a recognizance of bail to be forfeited by a surety: "(1) the circumstances under which the surety entered into the recognizance, particularly if there was coercion or duress; (2) the nature of the relationship between the surety and the accused; (3) whether the surety had day-to-day contact with the accused; (4) what steps were taken by the surety to ensure the accused's attendance at court and compliance with the conditions of the recognizance; (5) any circumstances that might have alerted the surety that the accused was likely to abscond or otherwise breach; (6) whether the surety assisted the accused in defaulting; (7) what steps were taken by the surety after he or she determined the accused may have breached or was about to breach; (8) the amount of the recognizance; (9) the means of the surety at the time of the hearing, and any change in his or her financial circumstances since signing the recognizance of bail, and since the breach. ...  [I]t is not open to the surety at the estreatal hearing to attack the appropriateness of the recognizance. If the surety or the accused was of the view that the recognizance conditions were inappropriate or the amount was unnecessarily high, there are procedures available to seek a variation." - See paragraphs 15 to 20.

Criminal Law - Topic 6947

Recognizances and undertakings - Enforcement - Forfeiture and estreatment - The Manitoba Court of Queen's Bench stated that "the impact of the accused's crime on the surety's emotional or financial well-being cannot be a factor to be considered on an estreatal application. Persons who commit crimes frequently cause emotional and financial harm to their families, relatives, friends, employers, and to others who care for them and attempt to help them, sometimes by signing bail for them. Just as forfeiture cannot be a penalty for the accused or the surety, nor can relief from forfeiture be compensation for this harm." - See paragraphs 37 and 38.

Criminal Law - Topic 6947

Recognizances and undertakings - Enforcement - Forfeiture and estreatment - Corey was charged with murder - In 2009, Corey's father (Dennis) signed as surety on a recognizance of bail in the amount of $100,000 - Corey was initially required to live with Dennis, but eventually the conditions of his recognizance were changed and Corey was allowed to reside with his mother - At this point, Corey became involved in a marijuana grow operation and breached his curfew condition on several occasions - He was charged with breach of recognizance in 2012 - The Crown sought forfeiture of the entire $100,000 - The Manitoba Court of Queen's Bench held that it would be unfair to place the full weight of Corey's failure to comply on Dennis - When Corey moved out of Dennis' home, Dennis continued to have daily contact with Corey - He made efforts to ensure Corey's compliance by keeping himself aware of the projects Corey was working on, visiting his work sites, acquainting himself with the people who worked with Corey, and keeping in touch by telephone - There was nothing to indicate to him that Corey was not complying with the recognizance - Dennis' financial situation had worsened since he signed the recognizance - He would likely have to sell his home or his company's assets in order to satisfy a significant forfeiture - The court ordered forfeiture in the amount of $75,000, as this would suffice to maintain the integrity of the bail system - See paragraphs 21 to 40.

Cases Noticed:

Ontario (Minister of Justice) v. Mirza et al. (2009), 255 O.A.C. 109; 248 C.C.C.(3d) 1; 2009 ONCA 732, appld. [para. 6].

Canada (Attorney General) v. Le, [2010] B.C.T.C. Uned. 1653; 264 C.C.C.(3d) 544; 2010 BCSC 1653, refd to. [para. 6].

R. v. Southhampton Justices, ex parte Green, [1975] 2 All E.R. 1073 (C.A.), refd to. [para. 10].

R. v. Andrews (1975), 9 Nfld. & P.E.I.R. 168; 12 A.P.R. 168 (Nfld. T.D.), refd to. [para. 10].

R. v. Southhampton Justices, ex parte Corker (1976), 120 S.J. 214, refd to. [para. 12].

R. v. Uxbridge Justices, ex parte Heward-Mills, [1983] 1 All E.R. 530 (Q.B.D.), refd to. [para. 12].

R. v. Nguyen, [2007] O.J. No. 5321 (Sup. Ct.), appld. [para. 16].

R. v. Norman, [2014] O.J. No. 1573; 2014 ONSC 2005, refd to. [para. 16].

R. v. Li (D.) et al., [2010] O.T.C. Uned. 1069; 2010 ONSC 1069, refd to. [para. 20].

Romania v. Iusein, [2014] O.J. No. 472; 2014 ONSC 623, refd to. [para. 27].

R. v. Jacobson (T.C.), [2005] O.T.C. 697; 31 C.R.(6th) 106 (Sup. Ct.), refd to. [para. 34].

Authors and Works Noticed:

Trotter, Gary T., The Law of Bail in Canada (2nd Ed. 1999), p. 481 [para. 11].

Counsel:

Keith C. Eyrikson, for the applicant;

Ryan P. Rolston, for the respondent.

This matter was heard before Bond, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on February 5, 2015.

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