CLIENT ACQUITTED OF FAILING TO COMPLY WITH RECOGNIZANCE WITH LAWFUL EXCUSE

R. v. J.

My client was charged with very serious weapons offences and was released on strict bail conditions wherein he had to be in his place of residence at all times except in the direct and continuous company of either of his sureties.  He had been following his conditions for 15 months prior to his arrest for failing to comply.  My client was not a Canadian citizen and had received a letter from the Canada Border Services Agency (CBSA) telling him that he was being investigated as a result of the weapons charges and had to come in for an interview.  In the letter it stated that if he did not attend there could be a Canada-wide warrant out for his arrest and he may be deported.

On the day of the interview neither of our client’s sureties could attend with him to the CBSA meeting.  Not wanting to miss the meeting for fear of the serious consequences stated in the letter, our client had his surety drop him off at the bus station and took the bus straight to the meeting.  During the interview it was discovered that my client’s surety did not attend with him.  Scared that he may be arrested, my client left the meeting.  He was re-summonsed to attend three days later, and my client attended with his surety.  At this time, my client was arrested for failing to comply with his recognizance for being out of the house without his surety when he attended the first CBSA meeting. 

At trial, Crown counsel introduced a certified copy of the information from our client’s weapons charges and made it an exhibit.  Next, Crown counsel attempted to introduce a certified copy of the indictment from Superior Court.  The defence was not provided with adequate notice that the Crown would be bringing a copy of the indictment from Superior Court and I vehemently argued that this documentation should not be entered into evidence.  The Canada Evidence Act (CEA) notice provided to the defence included the information from the Ontario Court of Justice but not the indictment, which I argued, are two separate documents.  I pointed out that at the time the CEA notice was served the indictment was in existence so there was no reason why it should not have been included.  Without this document there was no evidence that our client was subject to a bail at the time of the allegation of failing to comply with his recognizance. 

The judge agreed with the defence, that providing notice was not a difficult task and that the Crown cannot rely on what the accused “should have” known.  The judge ruled that the indictment as inadmissible due to insufficient notice.

After the judge’s ruling the Crown tried to make the argument that the indictment was admissible under common law through the principle exception to hearsay.  The judge had some concerns with the argument being made after her ruling and thought it would be better if this argument be addressed on a continuation day. 

To make use of the remainder of the afternoon, both counsel made closing submissions on the merits of the case if the indictment were found to be admissible.  I argued that our client had a lawful excuse to be without his surety to attend the CBSA meeting as if he did not appear there would be serious consequences.  It was not like a doctor’s appointment or a meeting with his lawyer, it was a meeting that could determine whether or not he may be deported from the country he lives in with his family.  i pointed out that while the CBSA officer’s contact information was on the letter, there was no evidence that there was any information about rescheduling the appointment. 

After a tough battle, the judge agreed with the defence and acquitted out client of failing to comply with his recognizance as he had a lawful excuse.

​If you have a criminal matter and would like to contact Ms. Bristow for a free consultation, please contact her by phone at 416-598-5741 or email at [email protected]

Note:  Past successes do not guarantee future successes