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Applications for forfeiture of recognizances
762. (1) Applications for the forfeiture of recognizances shall be made to the courts, designated in column II of the schedule, of the respective provinces designated in column I of the schedule.
Definitions
(2) In this Part,
"clerk of the court" «greffier du tribunal»
"clerk of the court" means the officer designated in column III of the schedule in respect of the court designated in column II of the schedule;
"schedule" «annexe»
"schedule" means the schedule to this Part.
R.S., c. C-34, s. 696.
Recognizance binding
763. Where a person is bound by recognizance to appear before a court, justice or provincial court judge for any purpose and the session or sittings of that court or the proceedings are adjourned or an order is made changing the place of trial, that person and his sureties continue to be bound by the recognizance in like manner as if it had been entered into with relation to the resumed proceedings or the trial at the time and place at which the proceedings are ordered to be resumed or the trial is ordered to be held.
R.S., 1985, c. C-46, s. 763; R.S., 1985, c. 27 (1st Supp.), s. 203.
Responsibility of sureties
764. (1) Where an accused is bound by recognizance to appear for trial, his arraignment or conviction does not discharge the recognizance, but it continues to bind him and his sureties, if any, for his appearance until he is discharged or sentenced, as the case may be.
Committal or new sureties
(2) Notwithstanding subsection (1), the court, justice or provincial court judge may commit an accused to prison or may require him to furnish new or additional sureties for his appearance until he is discharged or sentenced, as the case may be.
Effect of committal
(3) The sureties of an accused who is bound by recognizance to appear for trial are discharged if he is committed to prison pursuant to subsection (2).
Endorsement on recognizance
(4) The provisions of section 763 and subsections (1) to (3) of this section shall be endorsed on any recognizance entered into pursuant to this Act.
R.S., 1985, c. C-46, s. 764; R.S., 1985, c. 27 (1st Supp.), s. 203.
Effect of subsequent arrest
765. Where an accused is bound by recognizance to appear for trial, his arrest on another charge does not vacate the recognizance, but it continues to bind him and his sureties, if any, for his appearance until he is discharged or sentenced, as the case may be, in respect of the offence to which the recognizance relates.
R.S., c. C-34, s. 699.
Render of accused by sureties
766. (1) A surety for a person who is bound by recognizance to appear may, by an application in writing to a court, justice or provincial court judge, apply to be relieved of his obligation under the recognizance, and the court, justice or provincial court judge shall thereupon issue an order in writing for committal of that person to the prison nearest to the place where he was, under the recognizance, bound to appear.
Arrest
(2) An order under subsection (1) shall be given to the surety and on receipt thereof he or any peace officer may arrest the person named in the order and deliver that person with the order to the keeper of the prison named therein, and the keeper shall receive and imprison that person until he is discharged according to law.
Certificate and entry of render
(3) Where a court, justice or provincial court judge issues an order under subsection (1) and receives from the sheriff a certificate that the person named in the order has been committed to prison pursuant to subsection (2), the court, justice or provincial court judge shall order an entry of the committal to be endorsed on the recognizance.
Discharge of sureties
(4) An endorsement under subsection (3) vacates the recognizance and discharges the sureties.
R.S., 1985, c. C-46, s. 766; R.S., 1985, c. 27 (1st Supp.), s. 203.
Render of accused in court by sureties
767. A surety for a person who is bound by recognizance to appear may bring that person into the court at which he is required to appear at any time during the sittings thereof and before his trial and the surety may discharge his obligation under the recognizance by giving that person into the custody of the court, and the court shall thereupon commit that person to prison until he is discharged according to law.
R.S., c. C-34, s. 701.
Substitution of surety
767.1 (1) Notwithstanding subsection 766(1) and section 767, where a surety for a person who is bound by a recognizance has rendered the person into the custody of a court pursuant to section 767 or applies to be relieved of his obligation under the recognizance pursuant to subsection 766(1), the court, justice or provincial court judge, as the case may be, may, instead of committing or issuing an order for the committal of the person to prison, substitute any other suitable person for the surety under the recognizance.
Signing of recognizance by new sureties
(2) Where a person substituted for a surety under a recognizance pursuant to subsection (1) signs the recognizance, the original surety is discharged, but the recognizance and the order for judicial interim release pursuant to which the recognizance was entered into are not otherwise affected.
R.S., 1985, c. 27 (1st Supp.), s. 167.
Rights of surety preserved
768. Nothing in this Part limits or restricts any right that a surety has of taking and giving into custody any person for whom, under a recognizance, he is a surety.
R.S., c. C-34, s. 702.
Application of judicial interim release provisions
769. Where a surety for a person has rendered him into custody and that person has been committed to prison, the provisions of Parts XVI, XXI and XXVII relating to judicial interim release apply, with such modifications as the circumstances require, in respect of him and he shall forthwith be taken before a justice or judge as an accused charged with an offence or as an appellant, as the case may be, for the purposes of those provisions.
R.S., c. C-34, s. 703; R.S., c. 2(2nd Supp.), s. 14.
Default to be endorsed
770. (1) Where, in proceedings to which this Act applies, a person who is bound by recognizance does not comply with a condition of the recognizance, a court, justice or provincial court judge having knowledge of the facts shall endorse or cause to be endorsed on the recognizance a certificate in Form 33 setting out
(a) the nature of the default;
(b) the reason for the default, if it is known;
(c) whether the ends of justice have been defeated or delayed by reason of the default; and
(d) the names and addresses of the principal and sureties.
Transmission to clerk of court
(2) A recognizance that has been endorsed pursuant to subsection (1) shall be sent to the clerk of the court and shall be kept by him with the records of the court.
Certificate is evidence
(3) A certificate that has been endorsed on a recognizance pursuant to subsection (1) is evidence of the default to which it relates.
Transmission of deposit
(4) Where, in proceedings to which this section applies, the principal or surety has deposited money as security for the performance of a condition of a recognizance, that money shall be sent to the clerk of the court with the defaulted recognizance, to be dealt with in accordance with this Part.
R.S., 1985, c. C-46, s. 770; R.S., 1985, c. 27 (1st Supp.), s. 203; 1997, c. 18, s. 108.
Proceedings in case of default
771. (1) Where a recognizance has been endorsed with a certificate pursuant to section 770 and has been received by the clerk of the court pursuant to that section,
(a) a judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on his behalf, fix a time and place for the hearing of an application for the forfeiture of the recognizance; and
(b) the clerk of the court shall, not less than ten days before the time fixed under paragraph (a) for the hearing, send by registered mail, or have served in the manner directed by the court or prescribed by the rules of court, to each principal and surety named in the recognizance, directed to the principal or surety at the address set out in the certificate, a notice requiring the person to appear at the time and place fixed by the judge to show cause why the recognizance should not be forfeited.
Order of judge
(2) Where subsection (1) has been complied with, the judge may, after giving the parties an opportunity to be heard, in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper.
Judgment debtors of the Crown
(3) Where, pursuant to subsection (2), a judge orders forfeiture of a recognizance, the principal and his sureties become judgment debtors of the Crown, each in the amount that the judge orders him to pay.
Order may be filed
(3.1) An order made under subsection (2) may be filed with the clerk of the superior court and if an order is filed, the clerk shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.
Transfer of deposit
(4) Where a deposit has been made by a person against whom an order for forfeiture of a recognizance has been made, no writ of fieri facias shall issue, but the amount of the deposit shall be transferred by the person who has custody of it to the person who is entitled by law to receive it.
R.S., 1985, c. C-46, s. 771; R.S., 1985, c. 27 (1st Supp.), s. 168; 1994, c. 44, s. 78; 1999, c. 5, s. 43.
Levy under writ
772. (1) Where a writ of fieri facias is issued pursuant to section 771, the sheriff to whom it is delivered shall execute the writ and deal with the proceeds thereof in the same manner in which he is authorized to execute and deal with the proceeds of writs of fieri facias issued out of superior courts in the province in civil proceedings.
Costs
(2) Where this section applies, the Crown is entitled to the costs of execution and of proceedings incidental thereto that are fixed, in the Province of Quebec, by any tariff applicable in the Superior Court in civil proceedings, and in any other province, by any tariff applicable in the superior court of the province in civil proceedings, as the judge may direct.
R.S., c. C-34, s. 706.
Committal when writ not satisfied
773. (1) Where a writ of fieri facias has been issued under this Part and it appears from a certificate in a return made by the sheriff that sufficient goods and chattels, lands and tenements cannot be found to satisfy the writ, or that the proceeds of the execution of the writ are not sufficient to satisfy it, a judge of the court may, upon the application of the Attorney General or counsel acting on his behalf, fix a time and place for the sureties to show cause why a warrant of committal should not be issued in respect of them.
Notice
(2) Seven clear days notice of the time and place fixed for the hearing pursuant to subsection (1) shall be given to the sureties.
Hearing
(3) The judge shall, at the hearing held pursuant to subsection (1), inquire into the circumstances of the case and may in his discretion
(a) order the discharge of the amount for which the surety is liable; or
(b) make any order with respect to the surety and to his imprisonment that he considers proper in the circumstances and issue a warrant of committal in Form 27.
Warrant to committal
(4) A warrant of committal issued pursuant to this section authorizes the sheriff to take into custody the person in respect of whom the warrant was issued and to confine him in a prison in the territorial division in which the writ was issued or in the prison nearest to the court, until satisfaction is made or until the period of imprisonment fixed by the judge has expired.
Definition of "Attorney General"
(5) In this section and in section 771, "Attorney General" means, where subsection 734.4(2) applies, the Attorney General of Canada.
R.S., 1985, c. C-46, s. 773; 1995, c. 22, s. 10.
SCHEDULE
Section 762)
Column I Column II Column III
Ontario A judge of the Court of The Registrar of
Appeal in respect of a the Court of Appeal
recognizance for the
appearance of a person
before the Court
The Superior Court of A Registrar of the
Justice in respect of all Superior Court of
other recognizances Justice
Quebec The Court of Quebec, The Clerk of the
Criminal and Penal Court
Division
Nova The Supreme Court The Prothonotary
Scotia of the Supreme Court
New The Court of Queen's The Registrar of the
Brunswick Bench Court of Queen's Bench
British The Supreme Court in The District Registrar
Columbia respect of a of the Supreme Court
recognizance for the
appearance of a person
before that Court or
the Court of Appeal
A Provincial Court in The Clerk of the
respect of a Provincial Court
recognizance for the
appearance of a person
before a judge of that
Court or a justice
Prince The Supreme Court, The Prothonotary
Edward Trial Division
Island
Manitoba The Court of Queen's The registrar or a
Bench deputy registrar of
the Court of Queen's
Bench
Saskatchewan The Court of Queen's The Local Registrar
Bench of the Court of Queen's
Bench
Alberta The Court of Queen's The Clerk of the Court
Bench of Queen's Bench
Newfoundland The Supreme Court The Registrar of
the Supreme Court
Yukon The Supreme Court The Clerk of the
Territory Supreme Court
Northwest The Supreme Court The Clerk of the
Territories Supreme Court
Nunavut The Nunavut Court The Clerk of the
of Justice Nunavut Court of Justice
R.S., 1985, c. C-46, Sch. to Part XXV; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (2nd Supp.), s. 10; 1992, c. 1, s. 58, c. 51, ss. 40 to 42; 1998, c. 30, s. 14; 1999, c. 3, s. 54, c. 5, s. 44.
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Part XXVI
Extraordinary Remedies
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