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| Patrick Ducharme |
A recognizance is a form of solemn promise and an acknowledgment that a person makes to the court in support of the release of an accused that has attached to it a commitment to pay a specific amount if the accused does not abide by the conditions set out in the recognizance. A recognizance is enforceable through forfeiture proceedings. In forfeiture proceedings under section 773 of the Code, the accused or his sureties that have signed a recognizance may be ordered to pay all or part of the debt acknowledged in the recognizance.
The Superior Court Judge at the hearing inquiries into the circumstances of the case and may order the discharge of the amount for which the surety is liable or make an order with respect to the surety and to his imprisonment that he considers proper in the circumstances or issue a warrant of committal in relation to the surety. If there is a warrant of committal the sheriff takes the surety into custody and confines the surety in prison until satisfaction is made on the amount pledged or until the period of imprisonment fixed by the Judge has expired.
The surety may be able to convince the court that the surety is not at fault in any alleged infringement of the conditions of release imposed upon the accused. The court has discretion to consider lack of fault on the part of the surety in determining whether forfeitures should be ordered and/or if “partial forfeiture” is appropriate by designating specifically the amount of forfeiture up to but not greater than the amount pledged.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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