WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. B.C., 2023 ONCJ 484

DATE: 2023 10 30

COURT FILE No.: 1211-998-22-12100430-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

B.C.

Before Justice Scott Latimer

Heard on October 3 & 13, 2023

Reasons for Decision released on October 30, 2023

V. Reid................................................................................................... counsel for the Crown

Y. Gupta........................................................................................... counsel for the applicant

LATIMER J.:

[1] This is an application to vary a common law peace bond. The bond was jointly recommended on January 19, 2023. On the same day, related criminal charges were withdrawn. The mutually agreed upon terms included no contact with B.C.’s seventeen-year-old daughter, H. The bond was to run for eighteen months.

[2] On October 3, B.C. brought an application to vary the terms that prohibited contact with his daughter. The application included an affidavit from H., stating that she has received independent legal advice and wants contact with her father. She loves her father, does not fear him, and wishes to move forward as a family. She further advised that, because of substance abuse and medical and mental health issues proximate to the time of her initial police statement, she believes she hallucinated the allegations that formed the basis for the initial charges against her father.

[3] The Respondent Crown did not seek to cross-examine H. on any of these statements.

[4] Ms. Reid, on behalf of the Respondent, orally responded to the application. She submitted that the provincial court lacked jurisdiction to vary a common law peace bond and, as the criminal charges had been completed and the bond issued, the Ontario Court was rendered functus officio. Ms. Reid did not provide any authority supporting her position, indicating that she was unable to find any relevant precedent. In the event jurisdiction existed, she submitted that it would be unfair to the prosecution to vary the mutually agreed upon terms at this later stage.

[5] I reserved on this matter until October 13. On that date I allowed the application with reasons to follow. These are those reasons.

I. A common law peace bond

[6] Justice Durno’s decision in R v. Musoni (2009), 2009 12118 (ON SC), 243 CCC (3d) 17 (Ont. S.C.), aff’d 2009 ONCA 829, included in the applicant’s materials, provides an authoritative review of the common law peace bond and its place in modern criminal practice. At paragraphs 24-25, Durno J. writes:

Peace bonds are used routinely in many jurisdictions to resolve criminal charges without a trial. The accused is not required to enter a plea of guilty or make any admission of criminal conduct. It is an application based on apprehended conduct. Once the application is made the accused can either seek to show cause why he or she should not enter the bond, enter the bond as proposed or not show cause but contest one or more of the suggested terms.

Peace bonds save court time and give a measure of protection whether though s. 810 or at common law. Often as a result of concerns including those for the strength of the Crown’s case, the availability of witnesses, the views of the complainant, the best interest of the administration of justice and/or overcrowded court dockets, peace bonds are a sensible resolution to criminal charges.

[7] As Durno J. discusses in Musoni, there is a legal distinction between statutory and common law bonds: see para. 21. In practice, however, that distinction is often immaterial when bonds are employed for resolution purposes. Both types of bonds are used to resolve all manner of criminal charges. Sometimes the parties intend to rely upon a s. 810 bond, but preparatory steps are not taken to have one sworn and placed before the court. In those circumstances, the parties often pivot to a common law resolution. Practically speaking, in Halton Region and elsewhere in the province, common law peace bonds and s. 810 peace bonds are used interchangeably for resolution purposes.

II. Jurisdiction to vary an ongoing order

[8] The Crown challenges the authority of a provincial court judge to vary or reconsider an existing common law peace bond. Ms. Reid submitted that the appropriate course of action would be for the applicant to file an appeal with the Superior Court of Justice, while at the same time acknowledging uncertainty about what that process would definitively look like, and whether it would be pursuant to statutory or common law authority.

[9] Jurisdictional concerns relating to variance of an existing order do not arise in the s. 810 context, as the Criminal Code expressly provides such authority: see Criminal Code, s. 810(4.1). While not applicable to common law peace bonds, s. 810(4.1)’s existence is relevant to a contextual assessment of this issue, what the Supreme Court of Canada in R. v. Adams, 1995 56 (SCC), [1995] 4 SCR 707 referred to, at para. 29, as, “the nature of the rule of law pursuant to which the order is made”.

[10] The Court’s decision in Adams discusses the inherent power of a court to reconsider an order previously made. This power remains so long as the court is not functus or a relevant statute expressly excludes its operation. At paragraphs 28-29, Justice Sopinka, writing for the Court, explains as follows:

I agree with the respondent that nothing in the language of s. 486 of the Criminal Code expressly excludes any power possessed by a court to reconsider an order made under s. 486(3) and (4). These provisions address the making of the order but do not deal with whether the order is reviewable after it has been made. It is, therefore, not inconsistent with the interpretation of these subsections to hold that, whatever inherent power to reconsider resides in a court, survives. Indeed, as I shall point out hereafter, it may be desirable and in keeping with the purpose and objects of the section to permit reconsideration and revocation of the order if the circumstances which justified its making have ceased to exist. It is, therefore, necessary to consider what authority a judge has to reconsider a previous order and its application to the circumstances of this case.

A court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus. The court continues to be seized of the case and is not functus until the formal judgment has been drawn up and entered. [citation omitted] With respect to orders made during trial relating to the conduct of the trial, the approach is less formalistic and more flexible. These orders generally do not result in a formal order being drawn up and the circumstances under which they may be varied or set aside are also less rigid. The ease with which such an order may be varied or set aside will depend on the importance of the order and the nature of the rule of law pursuant to which the order is made. For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will be less formal… [emphasis added]

[11] The completion of B.C.’s criminal charges, for which I had a statutory function, does not mean that I am functus, or otherwise without jurisdiction to address the existing peace bond. My authority to impose a bond derives from the common law, not statute. As Justice Then said in R. v. Lall, 2015 ONSC 2709, at para. 26, “the jurisdiction of the justice to impose a peace bond stems from the common law and is not constrained by any statutory limitations governing the proceeding before the court”.

[12] Having reviewed these authorities, I am satisfied that I retain jurisdiction to consider a requested variance of an existing common law peace bond when it is submitted that a material change in circumstances has occurred. It is, furthermore, in the best interests of the administration of justice to allow these applications to proceed in the provincial court in a manner akin to their statutory cousins: Criminal Code, s. 810(4.1). The justice who made the initial order is generally in the best position to assess whether a material change has occurred and, if it has, whether it justifies varying the existing order. Further, it cannot be forgotten that a common law peace bond is a restraint on liberty and interference with a civil right. The common law should err on the side of providing more reviewability in these circumstances, not less.

III. A material change in circumstances

[13] H.’s statement to the police, documenting allegations against B.C., was the foundation for this bond’s issuance. Her affidavit, unchallenged in this proceeding, erodes that foundation. It constitutes a material change, as it relates to “a matter that justified the making of the order in the first place”: Adams, at para. 30.

[14] I have considered H.’s age during my assessment, as I believe it is relevant to this application. I have also considered the fact that she has received independent legal advice prior to swearing the affidavit, and that she is fully informed of the present application. Having assessed everything before me, I concluded that a material change had occurred, and the present circumstances justify removal of the conditions on the bond that prohibited contact between H. and B.C. The bond itself, and the remaining obligations, are still in force. Regarding the Crown’s concerns about prejudice, as both lawyers adverted to during submissions, it remains within the state’s authority to revitalize the prosecution if it is perceived to be in the public interest.

IV. Disposition

[15] Application granted.

Released: October 30, 2023

Justice Scott Latimer