Supreme Court
Decision Information
Decision information:
Abstract: Transcript of Decision on Bail Estreatment Hearing
Decision Content
R. v. Alookee, 2011 NWTSC 11 S-1-CR-2009-000074
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- and -
CLIFFORD ALOOKEE
_____________________________________________________
Transcript of Decision on Bail Estreatment Hearing
delivered by the Honourable Justice L.A. Charbonneau,
sitting at Yellowknife, in the Northwest Territories,
on March 2nd, A.D. 2011.
_____________________________________________________
APPEARANCES:
Mr. M. St-Germain: Counsel for the Crown
Mr. J. Bran: Counsel for the Accused
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1 THE COURT: This is an application for
2 forfeiture of bail monies that were deposited
3 with the Court following an order made by a
4 Justice of the Peace. In that order, the Justice
5 of the Peace had ordered that Clifford Alookee be
6 released on a recognizance with a number of
7 conditions, including one that he deposit $2,500
8 in cash deposit before he could be released.
9 There are many unique features to this case.
10 It makes the decision to be made on this hearing
11 a difficult one. To put this hearing and my
12 decision in context, I will refer to some extent
13 to the history of these proceedings.
14 First, the history of the prosecution that
15 this recognizance was associated with. Mr.
16 Alookee was charged in March of 2009 with a
17 sexual assault that allegedly had occurred in
18 Yellowknife. He was arrested and he was ordered
19 released on the recognizance that I have already
20 referred to. That order was made in March, 2009,
21 and the cash deposit was made in May. So that
22 was when Mr. Alookee was actually released.
23 There were no sureties on the recognizance.
24 It simply required that monies be deposited.
25 There is a receipt on the court file that shows
26 that those monies were sent to the Court by
27 Anaoyok Alookee, who is Mr. Alookee's mother.
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1 Mr. Alookee's Preliminary Hearing took place
2 on August 7th in Yellowknife, and he was present
3 as required. He was committed to stand trial and
4 his jury trial was scheduled to commence on May
5 31st, 2010. On that date, Mr. Alookee did not
6 appear. His counsel advised that Mr. Alookee was
7 still in Taloyoak and that he did not have the
8 financial means to come to Yellowknife for his
9 trial. At that point a warrant was issued for
10 Mr. Alookee's arrest and the many people who were
11 in the courtroom in response to jury summonses
12 were excused.
13 It is not disputed that after Mr. Alookee
14 was advised that a warrant had been issued for
15 his arrest he went to the RCMP Detachment in
16 Taloyoak to turn himself in. He was asked to
17 come back two days later, and I gather this was
18 because that was when the next flight out of the
19 community was scheduled for. Mr. Alookee did
20 return to the RCMP as directed. He was taken
21 into custody and brought to Yellowknife. He was
22 brought before the Court on June 3rd, and the
23 matter was adjourned to June 4th to give counsel
24 time to decide how to proceed next.
25 At that point there were two hearings that
26 potentially needed to be scheduled; a hearing
27 under section 598 of the Criminal Code to
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1 determine whether Mr. Alookee had lost his right
2 to be tried by a jury, and also a bail hearing to
3 determine whether he would remain in custody or
4 be released again pending the scheduling of his
5 trial, because, obviously, the trial was not
6 going to proceed that week.
7 On June 4th the bail hearing proceeded.
8 There was no viva voce evidence called at that
9 time, but Mr. Alookee's counsel made submissions
10 about some financial strains that had hit the
11 Alookee family and some of their circumstances,
12 all this leading to his failing to attend court.
13 At the conclusion of that hearing, Mr.
14 Alookee was ordered detained on the primary
15 ground. The section 598 hearing was adjourned to
16 August 20th, and it was understood that the issue
17 of bail could be revisited at that time. Counsel
18 advised that he would likely call viva voce
19 evidence at the section 598 hearing, and it was
20 expected this might be relevant to bail.
21 So on August 20th the 598 hearing was held.
22 Mrs. Alookee was called as a witness, and at the
23 conclusion of her testimony the Crown conceded
24 that Mr. Alookee had met his onus and had showed
25 cause why he should retain his right to have a
26 jury trial. The bail hearing then proceeded.
27 The evidence that had already been called was
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1 applied to it, and Mr. Alookee testified. At the
2 conclusion of that bail hearing he was ordered
3 detained, but on the secondary ground.
4 His jury trial was eventually rescheduled
5 and it started on January 24th, concluding on
6 January 26th when the jury returned a verdict of
7 not guilty. That is the procedural history of
8 the prosecution.
9 Turning to the history of the forfeiture
10 proceedings: Essentially, pursuant to section
11 770 of the Criminal Code, if a person does not
12 comply with a condition of a recognizance, a
13 Court, having knowledge of the default, is to
14 endorse the recognizance with a certificate in
15 Form 33. The section sets out certain
16 requirements as to what has to appear on the
17 certificate. The certificate was issued on June
18 4th at the conclusion of the bail hearing.
19 Section 771 of the Criminal Code provides
20 that once a certificate has been filed, a hearing
21 date must be set on request of either the Clerk
22 of the Court or the Attorney General. No request
23 was made by either the Clerk or the Attorney
24 General for a hearing date, but, rather, after
25 the criminal proceedings were completed in
26 January, 2011, Mr. Alookee's counsel wrote to the
27 Registry requesting the return of the bail
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1 monies. The Registry contacted the Crown, who
2 advised they did wish to have the monies
3 forfeited, and that is how the matter got set for
4 a hearing.
5 That hearing started earlier this week. Mr.
6 Alookee's counsel raised preliminary objections
7 to the hearing taking place, arguing that the
8 Court did not have jurisdiction to hold it. Some
9 issues were raised with respect to notice, as
10 well as alleged deficiencies in the certificate
11 itself.
12 After hearing submissions from both counsel
13 on these issues, I concluded that the Court did
14 have jurisdiction to hold the hearing, and I set
15 the continuation of the hearing to today's date.
16 I did so because I was of the view that counsel
17 and the Court should have an opportunity to
18 review the evidence that was adduced on August
19 20th, since that evidence related to the
20 circumstances that led to the default that
21 triggered the forfeiture hearing.
22 The Crown on this hearing had initially
23 indicated that it was seeking full forfeiture of
24 the bail monies, but, after having reviewed the
25 transcript of the August 20th proceedings, Crown
26 counsel has conceded that full forfeiture may not
27 be appropriate. He maintains that some
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1 forfeiture should be ordered in order to uphold
2 the integrity of the bail principles.
3 Counsel points out that Mrs. Alookee was not
4 a surety in this matter, so whatever diligence
5 she displayed and whatever efforts she made are
6 not what the Court should focus on at this
7 hearing. He says that the Court should focus,
8 rather, on Mr. Alookee's own actions and efforts
9 to comply with a recognizance.
10 The Crown has referred me today to the case
11 of R. v. Howell reported at [2008] N.J. No. 259,
12 where one of the considerations in deciding on
13 the amount of forfeiture was that the person in
14 that case had been prosecuted and sentenced for
15 the breach. The Court found that that mitigated
16 the need to forfeit the full amount. In that
17 case, because there has not been a prosecution
18 for failure to appear, the Crown says, using the
19 flip side of the same reasoning, that militates
20 in favour of forfeiture.
21 For his part, Mr. Alookee's counsel says
22 that no money should be forfeited in this case.
23 He has made arguments that justice was not
24 delayed in this case, because the Court never
25 lost control over Mr. Alookee. He argues that it
26 is irrelevant if it was Mrs. Alookee making the
27 efforts to get her son to court or Mr. Alookee
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1 himself; the point is that efforts were made.
2 He also argues that the position taken by
3 the Crown today is inconsistent with the position
4 that was taken at the 598 hearing when the
5 concession was made that Mr. Alookee should not
6 lose his right to a jury trial and, in the
7 process of doing so, acknowledged that efforts
8 had been made and stated that there was no fault
9 on Mr. Alookee's part or on his mother's part.
10 I want to deal with that argument now,
11 because I think it is important to draw certain
12 distinctions. I do think that the position that
13 the Crown took at the section 598 hearing is
14 relevant in the sense that it shows that the
15 Crown accepted aspects of the evidence that was
16 presented about the circumstances of the default,
17 but that position has to be put in context of the
18 nature of the hearing that was being held at that
19 time. Section 598 of the Code deals with what
20 happens when a person fails to appear or remain
21 at his or her jury trial. This section places an
22 onus on that person to show that they had a
23 legitimate excuse for not attending. Otherwise,
24 they lose their right to a jury trial.
25 That section has been challenged and its
26 constitutionality has been upheld, but it has
27 been interpreted to mean that nothing less than
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1 deliberate avoidance or a mistake about the trial
2 date that results from wilful blindness should
3 deprive a person of their right to a jury trial.
4 So it is a fairly high threshold.
5 The position that the Crown took in the
6 context of the section 598 hearing must be
7 understood bearing in mind the legal test that
8 was applicable in that hearing. In light of the
9 evidence that was heard, it was my opinion at the
10 time - and it remains my opinion - that that was
11 a sound, reasonable position for the Crown to
12 take. The circumstances that led the Crown to
13 take that position and the evidence that led the
14 Crown to take that position in the context of the
15 section 598 hearing have relevance to this
16 hearing, but I do not think that having made that
17 concession at that time should necessarily be
18 seen as creating an insurmountable obstacle for
19 the Crown at the forfeiture hearing, because the
20 legal test and principles that apply at a
21 forfeiture hearing are very different than the
22 ones that apply at a section 598 hearing. The
23 evidence about the circumstances of the failure
24 to appear is relevant to both, but, as I say, the
25 tests to be applied are very different.
26 Turning now to the principles that I must
27 apply in a hearing like this one, there are,
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1 first of all, general principles. A forfeiture
2 hearing is an opportunity for the person who was
3 bound by the recognizance or the sureties, if
4 there are any sureties, to be relieved from
5 forfeiture. The onus is on those persons to show
6 that they should be relieved from forfeiture.
7 That is what is stated in Trotter's text,
8 The Law of Bail in Canada, 2nd Edition. That is
9 at page 473. It is also what the case of
10 Canada v. Horvath says. That is a case I
11 referred to early on in these proceedings. It is
12 reported at [2009] 0.J. No. 4308 at paragraph 27.
13 It is a Court of Appeal of Ontario decision, a
14 five-judge panel, and I have found it very
15 helpful and quite persuasive as far as setting
16 out what kinds of considerations apply at a
17 hearing like this one.
18 In his text, Trotter also notes that
19 paragraph 2 of section 771 does not provide much
20 guidance as to how these hearings are to be
21 conducted and what criteria should be applied in
22 deciding whether to forfeit some, none or all of
23 the bail amounts. All the provision says is that
24 the Judge may, after giving the parties an
25 opportunity to be heard, in his discretion grant
26 or refuse the application and make any order with
27 respect to the forfeiture that he considers
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1 proper. One does not get much broader than that
2 as far as a provision that gives a power to a
3 court. So it is clear from that particular
4 provision that the power is a discretionary one.
5 That is why I found the Horvath case useful,
6 because it contains an overview of the various
7 considerations that ought to come into play when
8 making a decision like the one I have to make
9 today. That case dealt with situations that
10 involved sureties, but I find that many of the
11 principles that are set out in that case can also
12 apply to situations such as this one where there
13 was no surety, especially in this case, I think,
14 because although Mrs. Alookee was not a surety,
15 she was the one who sent the monies to be
16 deposited.
17 The evidence adduced on August 20th, which
18 was not challenged in any real way by the Crown,
19 was that this money is her money. The evidence
20 also showed that she acted very much as a de
21 facto surety in the circumstances of this case,
22 taking steps to try to get Mr. Alookee to court;
23 she was very aware of his reporting conditions.
24 Although I agree with the Crown that she
25 does not have any standing on this hearing, I
26 still am of the view that in exercising my
27 discretion I should not disregard her involvement
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1 completely, nor the fact that ultimately the
2 money that stands to be forfeited is hers.
3 In Horvath the Court recognized the
4 importance of approaching these hearings with the
5 objective of ensuring the effectiveness of the
6 bail system, which is obviously an important
7 consideration. But the Court also said at
8 paragraph 44 that it did not accept that the only
9 way to ensure the effectiveness of the system was
10 to adopt a rigid rule of total forfeiture, absent
11 exceptional circumstances. Rather, the Court
12 favoured a more flexible approach as being more
13 consistent with the broad discretion that is
14 implied by the language of section 771(2), and I
15 agree entirely with that.
16 At paragraph 51 of the decision the Court
17 outlined a number of factors that can be
18 considered in deciding how to exercise the
19 discretion. All these factors, of course, are
20 worded in terms of the surety, but, as I have
21 said, many are relevant and, in my opinion, can
22 be applied by analogy to cases where there are no
23 sureties. These factors include, for instance,
24 the amount of the recognizance, the question of
25 diligence, whether it is diligence of the surety
26 or diligence of the person bound by the
27 recognizance, the question of means of the people
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1 involved, the question of the conduct that takes
2 place after the breach.
3 To the extent that the evidence called on
4 August 20th related to the reasons why Mr.
5 Alookee was not in court on May 31st, his actions
6 and that of his mother, both before and after
7 that date, as well as the financial situation
8 that the family faced, that evidence goes to some
9 of these factors I have just identified and is
10 relevant to the question that must now be
11 decided. That is why I felt it was important to
12 have transcripts of that evidence so that what
13 was said at that time be clear.
14 Counsel acknowledged earlier this week that
15 there would be very little point in having these
16 people testify again about these matters for the
17 purposes of the forfeiture hearing, and, once
18 again, that is a reasonable approach. The
19 transcripts show that their evidence on August
20 20th, that being the evidence of Mrs. Alookee and
21 the evidence of Mr. Alookee, was not really
22 challenged by the Crown. The cross-examination
23 was geared as eliciting further details and
24 clarifications, but, really, there was no issue
25 taken with what the witnesses were saying about
26 what transpired.
27 Mrs. Alookee said that Mr. Alookee came to
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1 live with her after he was charged with matters
2 involving his common-law spouse in Repulse Bay
3 and he was required to live outside of that
4 community. She testified that she paid for him
5 to come to Taloyoak to live with her, and she
6 explained that as the trial date approached in
7 April or May she tried to contact Defence counsel
8 to explain their money issues, but that counsel
9 was on holidays. She testified that she had also
10 spoken to counsel sometime before this in
11 February, she thought, and that she had been told
12 that there might be some assistance available for
13 her. When she was not able to get a hold of
14 counsel, she tried to get a points ticket for Mr.
15 Alookee, but, because they were at the last
16 minute, that did not work either.
17 She explained that the financial problems
18 the family faced around that time stemmed in part
19 from the fact that her husband got diagnosed with
20 cancer in September, 2009 and that she and her
21 husband had to spend extended periods of time in
22 Edmonton while he was being treated. There were
23 expenses associated with all of this and that
24 strained the family's finances.
25 Mr. Alookee, for his part, testified that he
26 had looked for work while he was on release in
27 Repulse Bay and also after he moved to Taloyoak,
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1 but he did not have any success. He also talked
2 about how he turned himself in to police custody
3 on the very day the warrant was issued and,
4 again, two days later when he was directed to do
5 so.
6 The exercise of a discretionary power
7 requires the balancing of a lot of factors, and
8 there are quite a few that come out of the
9 evidence and the circumstances of this case; some
10 that militate in favour of forfeiture and others
11 that militate against it.
12 As far as things that would tend to militate
13 in favour of a forfeiture order, I think the
14 first is the need for the courts to uphold and
15 enforce the bail system and not undermine it.
16 The real effective force of bail and of cash
17 deposits and sureties is that it provides a
18 powerful incentive for a person to attend their
19 trial and comply with conditions, because, if
20 they do not, monetary consequences will follow
21 for themselves, for their loved one who posted
22 their bail or for their sureties, if they have
23 any.
24 As the Court of Appeal of Ontario put it in
25 Horvath at paragraph 41, our system depends on
26 accused persons attending court, and if accused
27 came to believe that they can fail to attend
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1 court and there would be no consequences as far
2 as bail monies or sureties, the surety system and
3 bail system would be ineffective. That is a
4 consideration that militates in favour of there
5 being a meaningful monetary consequence for the
6 default in this case.
7 Another consideration is the nature of the
8 default. By this I mean this was a failure to
9 appear at a date set for a jury trial.
10 Prospective jurors were inconvenienced by having
11 to attend court in response to their summonses.
12 There had been subpoenas issued for the May 31st
13 date, and the court file shows that two were
14 issued to residents of Gjoa Haven, and, of
15 course, there was the expense associated with
16 arresting and transporting Mr. Alookee under
17 escort to Yellowknife for his trial.
18 Another consideration is the effect of the
19 default, which in this case was to delay the
20 trial for some six months. Defence counsel has
21 argued, based on R. v. Wan, [2010] B.C.J. No.
22 766, that a delay of the trial in this context
23 implies a loss of control by the Court over the
24 movements of the accused for a period of time; in
25 other words, a period of limbo where the system
26 loses track of someone.
27 The case that Defence case referred to does
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1 make reference to this notion of losing control
2 over the accused, but, again, these comments must
3 be read in the context of the case. In Wan the
4 accused was out on bail, breached his conditions,
5 was arrested and then was taken before the court
6 and his matters were dealt with. There is no
7 indication whatsoever that proceedings were
8 delayed in any way as a result of the default.
9 Whereas in this case, because the default was a
10 failure to appear and it occurred on a trial
11 date, there was a delay in the proceedings, and
12 that is a factor.
13 The next consideration having to do with the
14 circumstances leading to the breach, and I will
15 get back to this in a moment, but some aspects of
16 that also militate in favour of forfeiture to
17 this extent: The trial had been set a long time
18 ahead of time. Most of the efforts seem to have
19 been made by Mrs. Alookee. Some steps that might
20 have been taken were not taken, such as speaking
21 to the police or Crown or the court to flag these
22 problems that were being encountered.
23 As for this question that the Crown has
24 asked me to take into account, that being the
25 fact that Mr. Alookee was not prosecuted or
26 sentenced for the breach, I will say this: The
27 Crown argues this militates in favour of
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1 forfeiture. But, with respect, I cannot agree
2 with that. I do not think that the argument used
3 in the Howell case can be used a contrario,
4 because the fact that a person is not charged
5 does not necessarily mean that they got a break.
6 It can simply mean that the authorities
7 recognized that they would not have had a
8 reasonable prospect of conviction on a breach
9 charge. So I really do not see how that argument
10 works. It is the flip side of the consideration
11 given by the Court in Howell to not over-punish
12 someone, but, with respect, I do not think it
13 works in the other direction.
14 So I have talked about things that would
15 militate in favour of forfeiture. Now I will
16 turn to things that militate against it. Some of
17 these factors go back to the same general
18 categories, but just other angles, other sides of
19 the same coin, if I can put it that way.
20 The consequences of the default: I have
21 talked about this already as far as the delay of
22 the trial and the inconvenience to prospective
23 jurors and the costs. One very significant
24 consequence of this default is that Mr. Alookee
25 ended up being detained following his failure to
26 attend and he was detained for a number of
27 months. That is not an insignificant
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1 consequence, and, in my view, in the
2 circumstances of this case, it is especially not
3 an insignificant consequence because of the
4 situation that was going on with his family, his
5 father's serious illness and deteriorating
6 health.
7 I was told today that at the time of the
8 trial Mr. Alookee had not passed away, but the
9 fact is, at the time of the August 20th bail
10 hearing the evidence from Mrs. Alookee was that
11 the prognosis was very poor, which means that
12 while Mr. Alookee was sitting on remand, he was
13 sitting with the knowledge that essentially his
14 father was dying. So I do not think that that is
15 a consequence that can be ignored in terms of the
16 overall picture.
17 The other aspect is to do with the
18 circumstances of the default itself. I think I
19 should take into account that there were
20 financial pressures on the family due to the
21 father's illness that were beyond the control of
22 Mr. Alookee and of everybody else. So that is
23 one factor. Also, although perhaps more could
24 have been done, some steps were taken on his
25 behalf to try to address this, including
26 contacting counsel, trying to find alternative
27 means of getting a ticket and those other things
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1 that she testified about.
2 The third factor - and it is one of the ones
3 identified in Horvath - is the behaviour after
4 the default. In this case, I think to be fair,
5 Mr. Alookee could not have been more cooperative
6 with the authorities in turning himself in. It
7 is very clear he was not trying to evade the
8 authorities. On the contrary, according to his
9 mother's testimony, he really wanted to get this
10 matter dealt with.
11 Another factor that is identified in the
12 case law is the amount of money. In Horvath, the
13 court said at paragraph 46 that in most cases
14 involving relatively small amounts, total
15 forfeiture may be required to adequately enforce
16 what is called the "pull of bail". By that, the
17 Court means the effectiveness of the bail system
18 and the incentive it gives to an accused to
19 comply with conditions. But, of course, what is
20 a relatively small amount? That in itself is a
21 very relative thing.
22 Based on the evidence about this family's
23 situation, I have no doubt that $2,500 is not a
24 small amount of money. As I have already noted,
25 I do not think that I can ignore the evidence
26 that this is Mrs. Alookee's money, even though,
27 as far as the recognizance that was issued, she
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1 was not named as a surety.
2 So I have tried to outline the various
3 considerations that I see having relevance here.
4 Part of the reason I have gone on at some length
5 here was that I do find this is one of those
6 cases where there really are factors pointing in
7 all directions. I have considered all these
8 factors, and, I must say, ordinarily in a
9 situation that involves a failure to appear for a
10 jury trial in particular, I would be very much
11 inclined to order full forfeiture or at least
12 partial forfeiture, primarily to promote and
13 uphold the effectiveness of bail principles. I
14 think that in most cases that would be an
15 appropriate way to deal with the matter if I take
16 into consideration the applicable principles and
17 the persuasive guidelines set out in the case
18 that I have referred to several times already.
19 But when a Court exercises broad discretionary
20 powers, it has to be sensitive to the unique
21 circumstances of each individual case.
22 After having considered all the competing
23 factors carefully, I conclude that given the
24 circumstances that brought about the default,
25 including the financial and personal turmoils
26 that the family was going through at the time, as
27 well as the very direct personal consequences
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1 that Mr. Alookee faced himself as a result of his
2 failure to attend court on May 31st, it is not in
3 this case necessary to forfeit these bail monies
4 to uphold the principles that underlie the bail
5 system.
6 It has been suggested that I could order the
7 forfeiture of a small amount to symbolically
8 uphold the bail principles, but I have decided
9 against that. I think the forfeiture of a small
10 amount of money, even if it was $200 or $300,
11 might do more harm than good as far as upholding
12 the bail system. It might actually trivialize
13 matters more than anything else. The fact is
14 that but for the very exceptional circumstances
15 in this case, most of all of these monies would
16 have been ordered forfeited. So since I have
17 concluded that in the circumstances that would
18 not be appropriate, I really do not see the point
19 in making what would essentially be a token
20 order.
21 Unlike the analogy that was made with the
22 situation of a sentencing where a Judge gives one
23 day in jail to an offender, I think in that
24 context there is a point. The Judge sends a
25 message to the offender and leaves a very clear
26 clue for the next Judge, should the person be
27 before the Court again. But in the context of
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1 forfeiture, I do not think that the kind of
2 signal that this would give is the same or can
3 serve the same purpose, and I do not see it as a
4 desirable approach. For these reasons, I decline
5 to order forfeiture of these monies.
6 Now, the question is what order I should
7 make. Mr. Bran, I can't remember what you
8 requested in your letter, but would it be
9 appropriate for me to direct that the monies be
10 returned to you in trust for Mr. Alookee? I am
11 sure the Registry won't want to mail $2,500 to
12 Taloyoak. So what do you suggest?
13 MR. BRAN: Your Honour, I don't have a
14 trust account, and I don't believe I am in a
15 position to legally take any money in trust.
16 What I would suggest is issuing a -- and I am not
17 even sure how bail money is normally returned, if
18 it's returned in cash or if it's returned in a
19 cheque.
20 THE COURT: Okay. Well, I think what I am
21 going to do is I am simply going to make the
22 order that the money -- and I have to order it
23 returned to Mr. Alookee, I think, because Mrs.
24 Alookee, although there is a receipt in her name,
25 the money was ordered deposited for him. She is
26 not a surety. I cannot direct that the money be
27 returned to her. So I will order that it be
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1 returned to Mr. Alookee, and I will speak to the
2 Registry staff to make sure that that is done in
3 a way that is consistent with how they normally
4 proceed so that I do not create problems, and
5 perhaps we can figure out those details later.
6 But do you know, Mr. Alookee still lives with his
7 mother, does he?
8 MR. BRAN: Your Honour, I am not sure,
9 given the fact that there was an issue with
10 Nunavut matters before the Nunavut Court of
11 Justice. What I could do is I can undertake to
12 contact Mr. Alookee and get a current mailing
13 address and I can provide that to the Court
14 Registry --
15 THE COURT: Okay.
16 MR. BRAN: -- probably by the end of
17 tomorrow for mailing purposes.
18 THE COURT: All right. Well, my order
19 will be that the monies be returned to Mr.
20 Alookee and that counsel provide the Registry
21 with the necessary information to allow that to
22 happen. That should leave it general enough.
23 I want to thank you, counsel, for your
24 submissions on this. They were very helpful.
25 I just wanted to add, more as a postscript
26 than anything else, that there is a mechanism in
27 the Criminal Code in the warrant provisions that
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1 provides for an application to be made for the
2 issuance of an arrest warrant when a person has
3 breached or is about to breach a recognizance.
4 I am not directing it as a criticism at all.
5 I am just raising it as an option that may, in
6 certain circumstances, be open if counsel become
7 aware very shortly before the start of a trial
8 that the accused person will not be in court.
9 That is a mechanism that I think is sometimes
10 used. Of course, it requires communicating with
11 the Crown, because it would be the Crown that
12 would be applying for the warrant, not Defence,
13 but it is a means of getting something in place
14 that can allow a trial to proceed.
15 It was not the case in this case, but it is
16 a means to, for example, avoid having a court
17 party get on a plane on a Monday morning to a
18 destination when it is known that there will not
19 be a point to that if the person, say, is stuck
20 on the wrong side of Great Bear Lake at breakup
21 time or -- you smile, Mr. Bran, but that has
22 happened.
23 So I just wanted to mention that, just in
24 case a situation arises in the future where that
25 option could be considered, possibly.
26 So if there is nothing further from either
27 of you, we will close court.
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1 MR. ST-GERMAIN: Thank you, Your Honour.
2 MR. BRAN: Thank you, Your Honour.
3 THE COURT: Thank you, counsel.
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7 Certified to be a true and
accurate transcript pursuant
8 to Rules 723 and 724 of the
Supreme Court Rules.
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Jill MacDonald, RMR
12 Court Reporter
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You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.