Peace Bonds: Difference between revisions

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Revision as of 21:34, 27 April 2023

This page was last substantively updated or reviewed January 2020. (Rev. # 84438)

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. The Peace Bond lasts for up to 12 months and may include conditions such as requiring the accused to "keep the peace", to refrain from contact or communication with a named party, or not to possess any weapons or ammunition.

Timing

The Peace Bond can be ordered at any point before or during a trial.

Right to a Hearing

Where a trial judge is considering imposing common law peace bond, he must allow parties to make submissions on it, as a matter of fairness, before deciding.[1]

  1. ↑ e.g. see R v Riad, 2014 ONSC 3407 (CanLII), per Campbell J, at paras 9 to 10

Common Law

The peace bond traces back to the English common law as a form of "preventative justice". It "empowers justices to place a person under bond where it appears the person may be a threat to peace, regardless of the fact the person has committed no offence." [1]

The common law peace bond still exists. It is not a criminal punishment that is extinguished by s. 9 of the Criminal Code and is affirmed by section 8(2)[2]

  1. ↑ Stevenson v Saskatchewan (Minister of Justice), 1987 CanLII 4983 (SKQB), , 61 Sask.R.91 (Q.B.), per Halvorson J
    R v Siemens, 2012 ABPC 116 (CanLII), 541 AR 62, per Rosborough J
    see also Mackenzie v Martin, 1954 CanLII 10 (SCC), [1954] SCR 361, per Kerwin J, at p. 370
  2. ↑ 8.(2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.

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]

Peace Bond Against a 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

Note up: 20(2)

  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

Laying on Information

See also: Laying of an Information and Issuing Process

The "laying of an information" does not require the applicant swear and information before a provincial court judge.[1]

  1. ↑ R v RK, 2011 ONCJ 129 (CanLII), per J.P. Wright 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

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]

  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

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.[1]

The court must consider all relevant evidence.[2]

The standards of evidence are relaxed and may include hearsay.[3]

Hearsay evidence is admissible but may be given limited weight.[4] 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.[5]

  1. ↑ 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
  2. ↑ Nawakayas, supra, at para 13
    see R v Loysen, 2006 SKQB 290 (CanLII), 213 CCC (3d) 281, per Wilkinson J, at para 17
  3. ↑ Nawakayas, supra, at para 18
  4. ↑ Nawakayas, supra, at para 15
  5. ↑ 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

Samples — designations and specifications

810.3 (1) For the purposes of sections 810 [peace bond – injury or damage], 810.01 [peace bond – organized crime], 810.011 [terror peace bond], 810.1 [sex offence peace bond] and 810.2 [serious personal injury peace bond] and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

(a) designate the persons or classes of persons that may take samples of bodily substances;
(b) designate the places or classes of places at which the samples are to be taken;
(c) specify the manner in which the samples are to be taken;
(d) specify the manner in which the samples are to be analyzed;
(e) specify the manner in which the samples are to be stored, handled and destroyed;
(f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;
(g) designate the persons or classes of persons that may destroy the samples; and
(h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.
Further designations

(2) Subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate the persons or classes of persons

(a) to make a demand for a sample of a bodily substance for the purposes of paragraphs 810(3.02)(b) [conditions in recognizance &ndash bodily sample on demand (abstention breach)], 810.01(4.1)(f) [peace bond &ndash conditions – bodily sample on demand (abstention breach)], 810.011(6)(e) [terror peace bond – conditions – bodily sample on demand (abstention breach)], 810.1(3.02)(h) [sex offence peace bond – conditions – bodily sample on demand (abstention breach)] and 810.2(4.1)(f) [serious personal injury peace bond – conditions – bodily sample on demand (abstention breach)]; and
(b) to specify the regular intervals at which a defendant must provide a sample of a bodily substance for the purposes of paragraphs 810(3.02)(c) [conditions in recognizance – bodily sample reg interval (abstention breach)], 810.01(4.1)(g) [peace bond &ndash conditions – bodily sample reg interval (abstention breach)], 810.011(6)(f) [terror peace bond – conditions – bodily sample reg interval (abstention breach)], 810.1(3.02)(i) [sex offence peace bond – conditions – bodily sample reg interval (abstention breach)] and 810.2(4.1)(g) [serious personal injury peace bond – conditions – bodily sample reg interval (abstention breach)].
Restriction

(3) Samples of bodily substances referred to in sections 810 [peace bond – injury or damage], 810.01 [peace bond – organized crime], 810.011 [terror peace bond], 810.1 [sex offence peace bond] and 810.2 [serious personal injury peace bond] may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (1) [peace bond samples – designations and specifications].

Destruction of samples

(4) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a recognizance under section 810 [peace bond – injury or damage], 810.01 [peace bond – organized crime], 810.011 [terror peace bond], 810.1 [sex offence peace bond] or 810.2 [serious personal injury peace bond] to be destroyed within the period prescribed by regulation unless the samples are reasonably expected to be used as evidence in a proceeding for an offence under section 811 [breach of recognizance].

Regulations

(5) The Governor in Council may make regulations

(a) prescribing bodily substances for the purposes of sections 810 [peace bond – injury or damage], 810.01 [peace bond – organized crime], 810.011 [terror peace bond], 810.1 [sex offence peace bond] and 810.2 [serious personal injury peace bond];
(b) respecting the designations and specifications referred to in subsections (1) [peace bond samples – designations and specifications] and (2) [peace bond samples – further designations];
(c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (4) [peace bond samples – destruction of sample]; and
(d) respecting any other matters relating to the samples of bodily substances.
Notice — samples at regular intervals

(6) The notice referred to in paragraph 810(3.02)(c) [conditions in recognizance – bodily sample reg interval (abstention breach)], 810.01(4.1)(g) [peace bond &ndash conditions – bodily sample reg interval (abstention breach)], 810.011(6)(f) [terror peace bond – conditions – bodily sample reg interval (abstention breach)], 810.1(3.02)(i) [sex offence peace bond – conditions – bodily sample reg interval (abstention breach)] or 810.2(4.1)(g) [serious personal injury peace bond – conditions – bodily sample reg interval (abstention breach)] must specify the places and times at which and the days on which the defendant must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the defendant is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.
2011, c. 7, s. 11; 2015, c. 20, s. 34.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 810.4(1), (2), (3), (4), (5), and (6)

Prohibition on use of bodily substance

810.4 (1) No person shall use a bodily substance provided under a recognizance under section 810 [peace bond – injury or damage], 810.01 [peace bond – organized crime], 810.011 [terror peace bond], 810.1 [sex offence peace bond] or 810.2 [serious personal injury peace bond] except for the purpose of determining whether a defendant is complying with a condition in the recognizance that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.

Prohibition on use or disclosure of result

(2) Subject to subsection (3) [prohibition on use or disclosure of result – exception], no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a recognizance under section 810 [peace bond – injury or damage], 810.01 [peace bond – organized crime], 810.011 [terror peace bond], 810.1 [sex offence peace bond] or 810.2 [serious personal injury peace bond].

Exception

(3) The results of the analysis of a bodily substance provided under a recognizance under section 810 [peace bond – injury or damage], 810.01 [peace bond – organized crime], 810.011 [terror peace bond], 810.1 [sex offence peace bond] or 810.2 [serious personal injury peace bond] may be disclosed to the defendant to whom they relate, and may also be used or disclosed in the course of an investigation of, or in a proceeding for, an offence under section 811 or, if the results are made anonymous, for statistical or other research purposes.

Offence

(4) Every person who contravenes subsection (1) [prohibition on use of bodily substance] or (2) [prohibition on use or disclosure of result] is guilty of an offence punishable on summary conviction.
2011, c. 7, s. 11; 2015, c. 20, s. 34.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 810.4(1), (2), (3), and (4)

Proof of certificate of analyst — bodily substance

811.1 (1) In a prosecution for breach of a condition in a recognizance under section 810 [peace bond – injury or damage], 810.01 [peace bond – organized crime], 810.011 [terror peace bond], 810.1 [sex offence peace bond] or 810.2 [serious personal injury peace bond] that a defendant not consume drugs, alcohol or any other intoxicating substance, a certificate purporting to be signed by an analyst that states that the analyst has analyzed a sample of a bodily substance and that states the result of the analysis is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person who appears to have signed the certificate.

Definition of analyst

(2) In this section, analyst has the same meaning as in section 320.11 [offences relating to conveyances – definitions].

Notice of intention to produce certificate

(3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

Requiring attendance of analyst

(4) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.
2011, c. 7, s. 12; 2015, c. 20, s. 34; 2018, c. 21, s. 27.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 811.1(1), (2), (3), and (4)

See Also

Application Digests

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