Jump to content

Peace Bonds

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 99532)

Introduction

A Peace Bond is a form of recognizance (a pledge to judge or justice to abide by conditions) that can be required at the request of either Crown or Defence, or on the Court's own motion. [1]

Peace bonds come in two forms. They can be imposed by operation of the peace bond provisions of the Criminal Code: 810, 810.1, etc. They can also be imposed by operation of the common law.[2]

The ordering of a peace bond is not a criminal conviction.[3]

They do constitute restrictions on the liberty of the respondent party.[4]

Burden

The burden is upon the party seeking a peace bond on a balance of probabilities.[5]

Difference between Criminal Code and Common Law

There are several differences between the two forms of peace bonds:[6]

  1. a Criminal Code peace bond requires the swearing of an information. A common law peace bond does not require one.
  2. A Criminal Code peace bond has a fixed duration set by the Code. Usually 12 months. A common law peace bond has no maximum duration.
  3. a Criminal Code peace bond is only available where there is "reasonable grounds" to believe there is a risk of some dangerous or illegal conduct. A common law peace bond only requires a reasonable apprehension that there will be a "breach of the peace."
  4. the penalties are different. The Criminal Code peace bond has a hybrid election usually with a fixed offence penalty. A common law peace bond will attract a penalty under s. 127 for a breach of a court order.
Purpose

The ordering of a peace bond is "preventative justice" to prevent certain conduct on the part of the respondent party.[7]

In practice, peace bonds are often used to resolve criminal allegations without a trial. They are a tool to save court time when there is:[8]

  1. concerns for the strength of the Crown's case.
  2. availability of witnesses;
  3. views of the complainant;
  4. best interests of the administration of justice; or
  5. best interests for an overcrowded docket.

The preferred practice is to assess the availability of a peace bond before setting a trial date, but it is often the day of trial where the basis for the decision crystalizes.[9]

  1. ↑ R v Soungie, 2003 ABPC 121 (CanLII), at paras 6 to 7
  2. ↑ R v Musoni, 2009 CanLII 12118 (ON SC), per Durno J, at para 20 (" peace bond can be obtained through an information sworn pursuant to s. 810 of the Criminal Code or relying on the common law to require a person to enter a common law peace bond without reference to s. 810 of the Criminal Code")
    Regina v. Shaben et al. (1972), 1972 CanLII 358 (ON SC), 8 C.C.C. (2d) 422
  3. ↑ Musoni, supra at para 22
    Re Dhesi and the Queen (1983), 1983 CanLII 338 (BC SC), 9 C.C.C. (3d) 149 (B.C. Sup. Ct.) Lander J. (“It is clear that s. 745 [now 810] does not create an offence but simply sets out a mechanism which will allow the court to order the defendant to enter into a recognizance to keep the peace and to be of good behaviour . . .”)
  4. ↑ Musoni, supra at para 28
    R v MacKenzie (1945), 1945 CanLII 67 (ON CA), 85 C.C.C. 233
    R. v. Budreo (2000), 2000 CanLII 5628 (ON CA), 142 C.C.C. (3d) 225 (Ont. C.A.)
  5. ↑ Musoni, supra, at para 20
    Mackenzie v. Martin 1954 CanLII 10 (SCC), [1954] SCR 361 at 368
  6. ↑ Musoni, supra, at para 21
    see also R. v. Maroney (1974), 1974 CanLII 19 (SCC), 27 C.R.N.S. 185 per Judson J. at p. 188
    R v White, 1968 CanLII 849 (BC SC), [1969] 1 C.C.C. 19 (B.C.S.C.) (White) per Aikens J. at pp. 29-30.
  7. ↑ Musoni, supra at para 22
    R v Soungie, 2003 ABPC 121 (CanLII), per Allen JTemplate:AtLfjv
  8. ↑ Musoni, supra at paras 24 and 25
  9. ↑ Musoni, supra at paras 26

Withdrawing From an Agreed Peace Bond

A person may resile or renege an agreement to enter a peace bond where it was not entered into voluntarily or was not properly advised on the consequences of entering a peace bond.[1]

The assessment can be compared to the requirements of withdrawing a guilty plea.[2]

An informed agreement is one where the accused understands:[3]

  • the nature of the charges he faced;
  • the nature of the peace bond;
  • the legal effect and consequences of entering the peace bond.

An equivocal agreement is one where it is unintended, confusing, qualified, modified or uncertain.[4]

It is not necessary that the accused admit that they did anything to contribute to the reasonable fears of the complainant.[5]

The assessment of the accused is only at the time of the agreement not after-the-fact change of mind.[6]

  1. ↑ Musoni, supra, at para 29
  2. ↑ Musoni, supra, at paras 28 to 33
  3. ↑ Musoni, supra at para 30
  4. ↑ Musoni, supra at para 31
  5. ↑ Musoni, supra at para 31
  6. ↑ Musoni, supra at para 32

Common Law

Statute

Purpose

Proceedings under s. 810 to 810.2 are more civil than criminal in nature. It is not designed to punish for past bad acts but rather is preventative in nature. It only carries the potential for criminal charges upon violation.[1] The same applies for s. 810.1 orders.[2]

Requirements

The peace bond provisions between s.810 and 810.2 are all invoked on the same standard, whether the judge is "satisfied by the evidence adduced that the informant has reasonable grounds for the fear" that he will commit one of the enumerated offences.[3] Where satisfied, the accused will be required to enter into a recognizance to "keep the peace and be of good behaviour".

The court must assess the "present risk" of the person in committing an enumerated offence in the future. The court must consider "all relevant factors in a person’s life" and "factors that are not immutable but will change over time."[4] Then the court must balance the interests in protecting the victims of the enumerated crime and the interest of the person's liberty.[5]

The judge must balance the defendant's right to be left alone against the right of the applicant to "protective intervention" in the appropriate circumstances.[6]

An order can be made out even if the applicant cannot prove a criminal offence occurred.[7]

Onus and Standard of Proof

The burden is upon the applicant to make out the requirements on a balance of probabilities.[8]

Constitutionality

Section 810.1 does not violate s. 7 and is constitutional.[9]

Orders under s. 810.1 is "designed to protect children from victimization." [10]

Procedure

There is a dispute over whether the procedures of Part XVI of the Code have an application to proceedings in relation to peace bonds.[11]

  1. ↑ R v Bilida, 1999 ABQB 1016 (CanLII), 256 AR 336, per Martin J (“... is not a criminal charge, nor does it address past misconduct”)
    cf. R v Fontaine, 2010 SKPC 16 (CanLII), 356 Sask R 229, per Nightingale J rejects view of it as a "quasi-criminal" proceeding
    Nawakayas, supra, at paras 7, 8
    R v Budreo, 2000 CanLII 5628 (ON CA), 142 CCC (3d) 225, per Laskin JA (s. 810.1 "is a preventative provision not a punitive provision.")
  2. ↑ Budreo, ibid., at para 30
    Nawakayas, supra, at paras 7 to 13
    R v C(CJ), 1999 CanLII 14302 (MB QB), 140 CCC (3d) 159, per Menzies J
    R v Soungie, 2003 ABPC 121 (CanLII), per Allen J, at para 8
  3. ↑ See comment R v Nawakayas, 2013 SKPC 35 (CanLII), per Morgan J, at para 1
  4. ↑ Budreo, supra, at paras 25, 33
  5. ↑ Budreo, ibid., at para 39
  6. ↑ Soungie, supra, at paras 11 and 46
  7. ↑ CJC, supra ("... the informant may successfully meet the onus of proof under section 810.1 even if he is unable to prove that a criminal offence has taken place")
  8. ↑ Soungie, supra, at paras 33 to 34
    Budreo, supra
    contra R v Kirkham, [1993] O.J. No. 1618 (Ont. Co. Ct.)(*no CanLII links) , per Salhany J
  9. ↑ Budreo, supra
    R v Sem Paul Obed, 2000 CanLII 28287 (NS PC), per C Williams J
  10. ↑ R v Loysen, 2006 SKQB 290 (CanLII), 213 CCC (3d) 281, per Wilkinson J, at para 1
    Budreo, supra, at para 25 ("It aims not to punish past wrongdoing but to prevent future harm to young children, to prevent them from being victimized by sexual abusers.....It is about assessing the present risk of a person committing a sexual offence against young children...")
  11. ↑ R v Penunsi, 2018 NLCA 4 (CanLII), 357 CCC (3d) 539, per Hoegg JA
    MacAusland v Pyke, 1995 CanLII 4541 (NS SC), 96 CCC (3d) 373, per Kelly J


"Reasonable Grounds for the Fear"

All four types of peace bonds require that the provincial court judge be satisfied that there is "reasonable grounds for the fear" that the respondent will commit one of the enumerated offences.

The requirement of "reasonable grounds" for a "fear" suggests "a reasonably based sense of apprehension about a future event" or "a belief, objectively established, that the individual will commit an offence."[1]

The judge is to look at the risk of "future harm" not "future conduct."[2]

Conditions based on proven likelihood of harm should be "relatively slight."[3]

  1. ↑ R v Budreo, 2000 CanLII 5628 (ON CA), 142 CCC (3d) 225, per Laskin JA
  2. ↑ R v Letavine, 2011 ONCJ 444 (CanLII), per Dechert J
  3. ↑ R v Budero, 1996 CanLII 11800 (ON SC), 104 CCC (3d) 245, per Then J appealed to 2000 CanLII 5628 (ON CA), 142 CCC (3d) 225, per Laskin JA

Procedure

Statutory Peace Bonds

There is divided authority that suggests that where an information has been laid under s. 810, the court may rely on the provisions of Part XVI [Compelling Appearance of Accused Before a Justice and Interim Release] to authorize arrest warrants and governs bail.[1]

For a judge to issue an order under s. 810, they must be satsified by the evidence that there are reasonable grounds to fear.[2]

There is no requirement of needing sworn evidence to assess the requirements.[3] If the order is not being contested the judge may rely on submissions of counsel.[4]

Common Law Peace Bonds

Before making an order, the judge must determine whether facts are proven sufficiently to justify the order.[5] The judge cannot rely on speculation or conjecture.[6]

  1. ↑ R v Budreo, 2000 CanLII 5628 (ON CA), 142 CCC (3d) 225, per Laskin JA
    R v Cachine, 2001 BCCA 295 (CanLII), 154 CCC (3d) 376, per Rowles JA contra R v Penunsi, 2018 NLCA 4 (CanLII), 357 CCC (3d) 539, per Hoegg JA
  2. ↑ infra at para 42
  3. ↑ infra
  4. ↑ infra
    infra at para 44
  5. ↑ Shaben (1972), 1972 CanLII 358 (ON SC), 8 C.C.C. (2d) 422 (Ont. H.C.), Lerner J
    R v Musoni, 2009 CanLII 12118 (ON SC), per Durno J, at para 40
  6. ↑ Musoni, ibid. at para 41
    Bilida 1999 ABQB 1016 (CanLII), [2000] A.J. No. 20 (Alta.Q.B.), Martin J

Youth Court Justice

14
[omitted (1)]

Orders

(2) A youth justice court has exclusive jurisdiction to make orders against a young person under sections 83.3 (recognizance — terrorist activity), 810 (recognizance  — fear of injury or damage), 810.01 (recognizance  —  fear of certain offences), 810.011 (recognizance —  fear of terrorism offence), 810.02 (recognizance  —  fear of forced marriage or marriage under age of 16 years) and 810.2 (recognizance — fear of serious personal injury offence) of the Criminal Code and the provisions of this Act apply, with any modifications that the circumstances require. If the young person fails or refuses to enter into a recognizance referred to in any of those sections, the court may impose any one of the sanctions set out in subsection 42(2) (youth sentences) except that, in the case of an order under paragraph 42(2)(n) (custody and supervision order), it shall not exceed 30 days. [omitted (3), (4), (5), (6) and (7)]

2002, c. 1, s. 14; 2015, c. 20, ss. 32, 36, c. 29, s. 14; 2019, c. 13, s. 159.

– YCJA (CanLII), (DOJ)

Note up: 14(2)

Arrest and Release

A JP can issue an arrest warrant to compel attendance in relation to an application under s. 810.[1]

The provisions of bail on criminal charges apply to matters of a peace bond application.[2]

Young Person

Under s. 20 of the YCJA, a justice may make a s. 810 order against a young person:

20
[omitted (1)]

Orders under section 810 of Criminal Code

(2) A justice has jurisdiction to make an order under section 810 (recognizance — fear of injury or damage) of the Criminal Code in respect of a young person. If the young person fails or refuses to enter into a recognizance referred to in that section, the justice shall refer the matter to a youth justice court.
2002, c. 1, s. 20; 2019, c. 13, s. 160.

– YCJA (CanLII), (DOJ)

Note up: 20(2)

Evidence

The onus is on the Crown to satisfy the court on a balance of probabilities that there are sufficient grounds to make the order.[3]

The court must consider all relevant evidence.[4]

The standards of evidence are relaxed and may include hearsay.[5]

Hearsay evidence is admissible but may be given limited weight.[6] However, second-hand information will mostly be considered non-hearsay since it is tendered for the purpose of establishing belief and not the underlying fact.[7]

  1. ↑ R v Soungie, 2003 ABPC 121 (CanLII), per Allen J, at para 7
  2. ↑ Soungie, ibid., at para 7
  3. ↑ R v Nawakayas, 2013 SKPC 35 (CanLII), per Morgan J, at para 13
    see R v Soungie, 2003 ABPC 121 (CanLII), 341 AR 350, per Allen J
    R v Boone, 2003 MBQB 292 (CanLII), 179 Man R (2d) 227, per Darichuk J, at para 8
  4. ↑ Nawakayas, supra, at para 13
    see R v Loysen, 2006 SKQB 290 (CanLII), 213 CCC (3d) 281, per Wilkinson J, at para 17
  5. ↑ Nawakayas, supra, at para 18
  6. ↑ Nawakayas, supra, at para 15
  7. ↑ Nawakayas, supra, at para 18

Types of Peace Bonds

Breaches of a Peace Bond

Breach of recognizance

811 A person bound by a recognizance under any of sections 83.3 [terrorism recognizance] and 810 to 810.2 [peace bonds] who commits a breach of the recognizance is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or
(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 811; 1993, c. 45, s. 11; 1994, c. 44, s. 82; 1997, c. 17, s. 10, c. 23, ss. 20, 27; 2001, c. 41, s. 23; 2015, c. 20, s. 27, c. 23, s. 19, c. 29, s. 12; 2019, c. 25, s. 322.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 811

An offence of a "breach of recognizance" under s. 811 is an absolute jurisdiction offence under s. 553(c)(ix) and so there is no defence election. It must be tried by a provincial court judge.

A breach of a peace bond order cannot amount to a breach of an undertaking under s. 145(3).[1]

Terms of a peace bond apply to conduct that occurs in other provinces.[2]

  1. ↑ R v Simancek, [1993] OJ No 1342 (O.C.A.)(*no CanLII links)
  2. ↑ see e.g. R v Pheiffer, 1999 BCCA 558 (BC CA), 139 CCC (3d) 552, per Ryan JA

Ranges

History

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the maximum penalties for convictions s. 811. On summary conviction, the maximum penalties increased from 6 months and to 18 months. On indictable election, the maximum penalties increased from 2 years to 4 years.

Appearance by Video Link

Audioconference or videoconference

810.21 (1) If a defendant is required to appear under any of sections 83.3 [terrorism recognizance] and 810 to 810.2 [peace bonds], a provincial court judge may, on application of the prosecutor, order that the defendant appear by audioconference or videoconference.

Application

(2) Despite section 769 [application of judicial interim release provisions], sections 714.1 to 714.8 [video and audio evidence] and Part XXII.01 [Pt. XXII.01 – Remote Attendance by Certain Persons (ss. 715.21 to 715.26)] apply, with any necessary modifications, to proceedings under this section.

2015, c. 20, s. 26; 2019, c. 25, s. 321.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 810.21(1) and (2)

Transfer of Bond Between Provinces

Transfer of order

810.22 (1) If a person who is bound by an order under any of sections 83.3 [terrorism recognizance] and 810 to 810.2 [peace bonds] becomes a resident of — or is charged with, convicted of or discharged under section 730 [order of discharge] of an offence, including an offence under section 811 [breach of recognizance], in — a territorial division other than the territorial division in which the order was made, on application of a peace officer or the Attorney General, a provincial court judge may, subject to subsection (2) [transfer peace bond between provinces – AG consent], transfer the order to a provincial court judge in that other territorial division and the order may then be dealt with and enforced by the provincial court judge to whom it is transferred in all respects as if that provincial court judge had made the order.

Attorney General’s consent

(2) The transfer may be granted only with

(a) the consent of the Attorney General of the province in which the order was made, if the two territorial divisions are not in the same province; or
(b) the consent of the Attorney General of Canada, if the information that led to the issuance of the order was laid with the consent of the Attorney General of Canada.
If judge unable to act

(3) If the judge who made the order or a judge to whom an order has been transferred is for any reason unable to act, the powers of that judge in relation to the order may be exercised by any other judge of the same court.
2015, c. 20, s. 26.

– CCC (CanLII), (DOJ)

Note up: 810.22(1), (2) and (3)

Collection and Use of Bodily Samples Under Peace Bond

See Also


Retrieved from "https://criminalnotebook.ca/index.php?title=Peace_Bonds&oldid=99532"