Defending Peace Bond Applications - A. Josey
Defending Peace Bond Applications
Pressé Mason Barristers and Solicitors
Bedford, Nova Scotia
A peace bond under s 810 of the Criminal Code is a method of resolving a criminal charge whereby the defendant agrees to be subject to conditions for a period of up to 12 months. Resolution by way of peace bond under a s 810 is an attractive option for defendants and defence counsel, as the defendant is not left with a criminal record. A s 810 peace bond, however, is also a process in its own right, which is available to a member of the public to initiate on their own without involving the police or public prosecution services.
Under s 810 of the Code, an informant can lay an information where they fear, on reasonable grounds, that another person will cause personal injury to the informant, their partner or child, and/or will cause damage to the informant’s property. Once the informant swears the information before a Justice of the Peace, the application process is commenced. The informant also completes a Statement of Complaint, which is usually the only disclosure made available prior to the hearing of the application. The Defendant can request the informant’s Statement of Complaint from the Court, which can be a useful tool for cross-examination.
The person named in the information is then summoned to appear before the Court. On the application, the Court has the discretion to order the defendant to enter into a recognizance to keep the peace and be of good behaviour, along with other conditions set out in the Code, for a period of not more than 12 months. In terms of procedure, the application is usually a two-step process. At the first step, the process is voluntary. The Court reads into the record the grounds set out in the information and asks the defendant whether they agree to enter into the recognizance. If the defendant agrees, the parties will then speak to the conditions. If the defendant does not agree to enter into the recognizance, a date is set for a hearing of the application.
When advising clients on navigating the first step of the process, it is important to note that it is always open to the informant to go to the police if the defendant does not agree to enter into the recognizance. On the other hand, it is important to note that a peace bond can have significant consequences. Importantly, the recognizance is a Court order, the breach of which can attract criminal liability. A defendant who is alleged to have breached a peace bond can be investigated, charged, and convicted under s 811 of the Code.
At the second step in the peace bond application process, the Court will hear the informant’s evidence and any evidence tendered by the defence to decide the matter. The hearing is a quasi-criminal proceeding and typically involves relaxed procedures and evidentiary rules compared to a true criminal trial. For example, hearsay evidence is typically admissible on the application.
Pursuant to s 810(3) of the Code, the Court can order the defendant to enter into a recognizance where the Court is satisfied that the evidence adduced on the application establishes that the informant has reasonable grounds for the fear set out in the information. In other words, there must be a subjective and objective component to the grounds on which the informant relies to establish that a peace bond should be ordered. Both components must be proven on a balance of probabilities.
With respect to the subjective component, the informant must subjectively fear that the defendant will cause personal injury or property damage. The subjective fear must be honest and actual. Evidence of annoyance or inconvenience is not enough. If the informant does not testify specifically as to their fear, the surrounding circumstances can be considered to determine whether the circumstances give rise to an inference that an honest and actual fear exists.
Typically, the subjective component is not an issue, and the application will hinge on whether the objective component can be established. The objective component is important to protect the defendant from unwarranted restrictions on their liberty based upon the perceptions of the informant, whose perspective may be unreasonable or speculative.
With respect to the objective component, the informant must satisfy the Court that they have reasonable grounds for their subjective fear. Only where the subjective perceptions of the informant are reasonable can an order be made under s 810 of the Code. The reasonable grounds component is assessed from the standpoint of a reasonable person similarly situated to the informant. The Court is required to use logic, common sense, and common experience when assessing the objective component.
The onus is on the informant to establish, on a balance of probabilities, that there is evidence of past misconduct on the part of the defendant, which gives rise to a risk of future misconduct warranting court intervention. Overall, the Court must be satisfied, based on the evidence, that there is a likelihood of future personal injury or property damage. The Court gauges the likelihood of future risk by assessing the existing, proven actions or omissions on the part of the defendant. Evidence of propensity for inflicting harm or damage, or evidence of misconduct itself, is generally admissible for the purpose of assessing the future risk of personal injury or property damage.
A recognizance under s 810 of the Code is therefore preventative in nature. It is intended to protect the informant from future harm in appropriate circumstances. The Court is effectively intervening to prevent a breach of the peace where no criminal offence has been proven by restraining the defendant’s liberty. The Court is required to balance the parties’ respective and competing interests. Defence counsel will want to submit that the Court should be cautious in exercising its discretion to restrict the defendant’s liberty and to intrude into their private affairs. Intervention by way of peace bond should only occur where this is proven to be necessary to protect the informant.
Accordingly, the threshold for ordering a s 810 recognizance is relatively high. The quality and strength of the evidence must be sufficient to establish that there is a risk of future harm. However, it does not have to be proven that the defendant will cause or intends to cause personal injury or property damage at a future time. Rather, the informant’s reasonable fear must be triggered by misconduct defendant’s part, which leads the Court to conclude that there is a risk for future personal injury or property damage. Arguably, this might require a pattern of significant, harassing behaviour on the part of the defendant. The conduct complained of should be more than trifling or inconsequential, and there should be more than mere animosity or hostility between the parties. Defence counsel will want to submit that any conduct, if proven, falls short of the requisite threshold such that the risk of future harm is negligible.
If the subjective and objective grounds are not proven, the Court has no jurisdiction to order the defendant to enter into a s 810 recognizance. It is important to note that, even where the requisite grounds are proven, the Court’s jurisdiction to order the defendant to enter into a recognizance is discretionary. The Court has the discretion not to order the defendant to enter into a recognizance, even where the subjective and objective grounds are met, if the Court finds that such an order is still not warranted under the circumstances. For example, defence counsel might submit that, while it may be that the informant’s reasonable fear warranted an order at the time of the swearing of the information, the passage of time does not support the issuance of the order.
To summarize, it is the informant’s burden to establish, based on the proven evidence, that there are subjective and objective grounds for ordering the defendant to enter into a recognizance. Defence counsel will want to challenge the sufficiency and strength of the evidence to establish that there is no objective foundation for the informant’s fears. It should be emphasized that a remote or speculative risk of personal injury and/or property damage is insufficient to interfere with the defendant’s liberty and privacy interests. If a recognizance is ordered, defence counsel will want to highlight the case-specific circumstances supporting the imposition of minimally-intrusive conditions for a period shorter than 12 months.