Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 01 11 COURT FILE No.: Windsor 19-1672

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRUCE PETERS

Before: Justice S.G. Pratt

Heard on: 25 November 2021 Reasons for Judgment released on: 11 January 2022

Counsel: Emile Carrington, for the Crown Frank Miller, for the Defendant

Pratt J.:

Endorsement

[1] The Crown has applied to this Court for the imposition of a common law peace bond against Bruce Peters, hereinafter the Respondent. Counsel for the Respondent agrees that this is an appropriate resolution.

[2] In addition to the peace bond, the Crown has asked this court for confirmation that the decision in R. v. Mousseau 2011 ONCJ 222 is no longer a barrier to the issuance of such orders.

The Allegations

[3] The allegations that support the Crown’s application are set out from paragraph 4 of the Crown’s factum. Briefly, on 13 June 2019 the complainant left his vehicle at a gas station pump and went inside the store to pay. In his absence, the Respondent entered the vehicle. When the complainant returned, the Respondent refused to leave. Police had to be called to remove the Respondent. He was charged with theft.

The Resolution

[4] This matter was considered at a judicial pre-trial on 21 June 2021. At that time all parties agreed that a peace bond was the appropriate resolution. On the order being made, the criminal charge would be withdrawn.

[5] That resolution was not effected, however, because according to the Crown, “in the Ontario Court of Justice in Windsor, as a result of the decision of this Court in R. v. Mousseau, common law peace bonds have been rarely used, and indeed discouraged” (see paragraph 2 of the Crown’s Factum). It is because of this apparent reticence that the Crown seeks confirmation that common law peace bonds are alive and well, even in Windsor.

[6] Before I begin my analysis of the law, I note that in my 11+ years as a Crown prosecutor in Essex County, and now the last two years as a judge, I have never encountered any such barrier to the use of common law peace bonds. They were considered less than ideal when s. 127 (breach of a court order) was a straight indictable offence, with a breach thus potentially triggering a preliminary hearing and Superior Court of Justice trial, but once s. 127 was made a hybrid offence, I was aware of no impediment to their use. Nonetheless, it seems uncertainty remains largely because of Mousseau. It is that uncertainty that these reasons will address.

Analysis

[7] It is not necessary for me to set out the history and utility of these orders. I adopt Justice Durno’s view of the matter from R. v. Musoni, [2009] O.J. No. 1161. His Honour’s decision was upheld unanimously by the Court of Appeal for Ontario at [2009] O.J. No. 4935.

[8] The issue in the present case is the ratio of Mousseau. Justice Fairgrieve found that a common law peace bond was not enforceable by resort to s. 127(1) of the Criminal Code. That section reads:

127 (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

[9] His Honour found that a common law peace bond was nothing more than an order for the payment of money. It was therefore specifically excluded from s. 127(1). The only method of enforcement available to the Crown in the event of a breach was the estreatment of the amount set in the order.

[10] With the utmost of respect for my learned colleague, I find his view construes the nature of a common law peace bond too narrowly.

[11] While breaching such an order can result in the obligation to pay the amount set out in the order, that does not make it simply “an order for the payment of money”. A peace bond is more than that. It is an order that curtails a person’s liberty for a set period of time. It can require the named party to conduct themselves in a particular way. It can prohibit contact with certain individuals or attendance at certain locations. It can prohibit the possession of certain items. It is, in my view, much more than an order for the payment of money.

[12] My own view notwithstanding, the issue has arguably been dealt with by courts whose decisions bind the Ontario Court of Justice since the release of Mousseau.

[13] In the case of R. v. Petre 2013 ONSC 3048, Justice Trotter (as he then was) heard an appeal against the imposition of a common law peace bond. This is at paragraph 6:

I start from the proposition that peace bonds, both at common law and those made under s. 810 of the Criminal Code, can have serious implications for an individual. The impact of a peace bond was discussed in some detail in R. v. Musoni (2009), 243 C.C.C. (3d) 17 (Ont. S.C.J.), aff'd (2009), 2009 ONCA 829, 248 C.C.C. (3d) 487 (Ont. C.A.), leave refused [2009] S.C.C.A. No. 534. Sitting as a Summary Conviction Appeal Court judge in that case, Durno J. said (at p. 26):

While peace bonds are often entered to resolve criminal charges, it is important to bear in mind that the entering of bond places restrictions on the liberty of the individual signing the bond. R. v. MacKenzie (1945), 85 C.C.C. 233 and R. v. Budreo (2000), 142 C.C.C. (3d) 225 (Ont. C.A.). Where there is an evidentiary basis for so doing, they are appropriate resolutions. However, it also has to be kept in mind that if there is a breach of the bond's conditions, the individual is liable to be prosecuted as noted above. There can be criminal implications from entering peace bonds. Accordingly, while a very useful alternative to criminal prosecutions, they should not be treated lightly.

I also note that common law peace bonds may be enforceable through the offence of disobeying a court order, contrary to s. 127 of the Criminal Code, a hybrid offence that is punishable by up to two years' imprisonment when proceeded with by way of indictment.

[14] As he was reviewing a decision made in the Ontario Court of Justice, His Honour’s decision is binding on this Court.

[15] In the recent case of R. v. Orton 2019 ONCA 334, the Court of Appeal upheld a conviction under s. 127 for breaching a common law peace bond. One might argue, however, that this case is of less value than it might be given that among the many grounds of appeal argued, the appropriateness of s. 127 was not included. The Court, understandably, did not comment on the issue. Even so, that the conviction emerged unscathed from the appeal is nevertheless at least a tacit approval of its propriety.

[16] Both of these decisions came out years after Mousseau. In my view, the current state of the law is that a common law peace bond is not merely an order for the payment of money. It is a longstanding example of a court’s ability to address breaches of the peace by controlling a citizen’s conduct. While that control does include a financial incentive to obey, that incentive is not the only, or even the primary, reason for the order. It is meant to pre-emptively avoid a future breach of the peace by imposing conditions on the recipient. A common law peace bond is an order of a court, breaches of which may be prosecuted under s. 127(1) of the Criminal Code. The decision in Mousseau has been overtaken by subsequent binding caselaw and presents no barrier to their use.

Application

[17] The joint recommendation of a common law peace bond in the present case is reasonable. I agree with counsel that this is a situation where an information under s. 810 of the Criminal Code would not likely be supported by the underlying allegations. A common law peace bond, on the other hand, with its broader scope and prospective point of view, fits the allegations well. In this case, the Respondent engaged in conduct that certainly troubled the complainant. It ultimately required the intervention of police. It was a clear breach of the peace. There is no allegation of prior conflict between the complainant and Respondent that might explain his conduct that day. This random behaviour is troubling. It establishes a reasonable apprehension of a breach of the peace in the future that warrants my taking preventative action.

[18] I will make the order as requested. I will invite submissions from counsel regarding suggested terms and the duration of the order.

Released: 11 January 2022 Signed: Justice S.G. Pratt