R v Mott – 2013 ONSC 1768 (Gauthier):

[1] On November 22, 2012 David Mott was released on bail, with his stepmother acting as his
surety. His release conditions were strict, and included a specific requirement that he reside with his stepmother and abide by her rules. She withdrew five days after the bail hearing. Two other
proposed sureties came forward, but they were not suitable. A third person was ultimately
substituted for the original surety.

[5] David Mott was charged with Robbery, Being Unlawfully in a Dwelling House, Assault with a
Weapon and Possession of a Weapon for a Dangerous Purpose, on or about November 10, 2012. He was detained in custody.

[6] On November 22, 2012, at a contested bail hearing where the onus was on the Crown, David
Mott admitted that he was an oxycontin and cocaine addict. His stepmother, Sandra MacDonald,
offered herself up as a surety. At the time, she had been involved with David Mott and his father for three years.
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[8] On November 27, 2012, Sandra MacDonald withdrew as a surety. She did so by completing an
Application By Surety For Relief, pursuant to s. 766 of the Criminal Code. This is referred to as the “rendering of an accused by a surety.”

[9] On that same date, an Order for Committal was issued by Justice of the Peace Toulouse for
David Mott’s arrest (again, pursuant to s.766). The Order for Committal was executed later that day, as per s. 766(2), after David Mott turned himself in. The Order bears the following notation:
Executed 27 November 2012
At 1810 hrs
Cst. Ferguson #92611 GSPS

[10] There follows the signature of Constable Ferguson.
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[35] The need for a new judicial interim release hearing on the rendering of an accused in David
Mott’s circumstances (i.e. with a named surety and conditions requiring the accused to reside with the surety) reflects the importance of the suitability of the surety, as well as the duty of a surety to ensure the accused’s presence in court for trial, and to otherwise supervise the accused and ensure his or her compliance with the conditions in the release order.
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[38] On November 29, 2012, after Sandra MacDonald had availed herself of the provisions of s.
766(1) of the Criminal Code, and after David Mott had turned himself in and had been imprisoned pursuant to s. 766(2) and pursuant to the Committal Order made by Justice of the Peace Toulouse, s. 769 was engaged and David Mott was required to have a new bail hearing. The Recognizance of November 22, 2012 was effectively vacated, although the release order remained in place.

[39] The provisions of s.767.1, which allow for the substitution of a surety without a new bail
hearing, were not available to David Mott, as he was already committed to prison pursuant to the
Committal Order. The substitution of a surety pursuant to s. 767.1 is only available as an alternative to a committal order.

[40] I would add that, although I disagree with the conclusion reached in Alexander, I agree with
the suggestion made at paragraph 30 of that case that the practice of writing or printing the word
“Executed” on the Committal Order, together with the date, time, name, and badge number of the
officer, “appears to be the modern-day version of the s. 766(3) sheriff’s ‘certificate’ that the person has been committed to prison” pursuant to a Committal Order.

[41] With regard to the issue of notice to the Crown, I agree with Dambrot J. in Smith that when an
accused is rendered by his surety and committed to prison, he is returned to his pre-release status
and is required to be brought before the court which has jurisdiction to deal with the issue of interim release. Part XVI of the Criminal Code is engaged, and the Crown must receive notice.

[42] With regard to the procedure for a substitution of a surety pursuant to s. 767.1, Dambrot J. in
Smith, stated that notice should be given to the Crown, and the Crown should be provided with an opportunity to appear and make submissions. I agree.

[43] A slightly different scenario may arise when the justice conducting the bail hearing orders the
release of the accused on a Recognizance with a surety or sureties, without naming them. The issue of the suitability of any proposed sureties will then be left to the Justice of the Peace who takes the Recognizance. The Justice will inquire into the suitability of proposed sureties. This is an important task and the Justice should be assisted by the Crown Attorney.

[44] This was made clear by Chadwick J. at page 166 of R. v. Dewsbury (1989), 50 C.C.C. (3d)
163 (Ont. H.C.J.), where he was considering section 12(j) (now 11(j)) of the Crown Attorneys Act:
Section 12(j) must be interpreted in light of Part XVI of the Criminal Code which
permits the Crown Attorney to make representations before the court as to the
sufficiency of the sureties that are being presented. A justice of the peace or
judge hearing the bail application will make the final determination as to the
adequacy of the sureties … Representations made by the Crown Attorney relating
to the adequacies of the sureties will no doubt carry great weight.

[45] Although Chadwick J. was making reference to a bail hearing, I suggest that the Crown
Attorney is entitled to make representations to a justice of the peace who is taking the Recognizance and considering the suitability of sureties who were not named in the release order. The importance of the suitability of the surety is not diminished by the surety not having been named in the release order.

[46] Conclusions:
1. Where an accused is rendered by his surety, pursuant to s. 766 or 767, and
an accused is committed to prison pursuant to s. 767(2) of the Criminal
Code, the Recognizance is vacated (although the release order remains)
and the surety is discharged.
2. Where an accused is rendered by his surety and committed to prison
pursuant to s. 767(2) of the Criminal Code, s. 769 of the Code applies and
a new bail hearing will be required.
3. Where an accused is rendered by his surety and committed to prison, the
procedure under s.767.1 of the Criminal Code for the substitution of a
surety (without a new bail hearing) is NOT available to the accused.
Section 767.1 is an alternative to committal.
4. Where a surety is named in the release order, a justice who is otherwise
authorized to substitute one surety for another, is precluded from doing so.
A justice may not amend a release order.
5. The Crown is entitled to notice of an application made pursuant to s.767.1
of the Code, and is entitled to make representations to a justice presiding
over such application.
6. The Crown is entitled to notice of any hearing or process involving the
assessment, by a justice, of the suitability of proposed sureties, and to
make representations in that regard.