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.
The onus is on the sureties to show why, on a balance of probabilities, the recognizance should not be forfeited. 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.
The pull of bail can sometimes be vindicated by something less than total forfeiture. In Horvath, the leading Ontario case on forfeiture, the Court of Appeal 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 surety’s means;
any significant change in the surety’s financial position after the recognizance was entered into and after the breach;
the surety’s conduct following the breach, including efforts to assist authorities in locating the accused; and
the relationship between the accused and the surety.
In cases involving significant sums of money, a more searching examination of the circumstances is called for. Frequently, such an examination centers on the impact forfeiture would have on the surety’s financial circumstances.
R v Wilson, 2017 ONCA 229