Ontario Court of Justice
Date: 2025-09-18 Court File No.: Sudbury, N/A
Re: Application for Peace Bonds, Unspecified, ss. 810 & 810.03 Criminal Code
Between
JB, JL, and TS
and
Ex Parte
Before: Justice G. Jenner
Received in writing on: September 9, 2025 Endorsement released on: September 18, 2025
JENNER J.:
ENDORSEMENT
I. Introduction
[1] This endorsement addresses procedural and jurisdictional questions with respect to peace bond informants who file with the court a 'Peace Bond Application' and allege fear of intimate partner violence (IPV), but do not specify whether they are applying for a standard peace bond recognizance pursuant to s. 810 of the Criminal Code, or a newly legislated specialized IPV peace bond recognizance pursuant to s. 810.03 of the Criminal Code.
[2] Because s. 810 provides that the informant swears an information before a justice of the peace and s. 810.03 provides that the informant swears an information before a provincial court judge, some clarity is required with respect to what class of jurist should receive a nonspecific Peace Bond Application, and how the court's intake process should respond.
II. Brief Legal Context
[3] There are several different types of peace bonds. Typically, the term 'peace bond' is used to describe either a common law peace bond or a recognizance pursuant to s. 810 of the Criminal Code. There are, however, other forms of specialized statutory peace bonds. Some are more rarely engaged, such as the recognizance permitted by s. 810.011 in the case of fear of a terrorism offence. Some are new, such as the recognizance permitted by s. 810.03, in the case of fear of IPV.
[4] Section 810.03 of the Criminal Code came into force on April 8, 2025: An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders), SC 2024, c 22. The s. 810.03 peace bond is available where any person fears on reasonable grounds "that another person will commit an offence that will cause personal injury to the intimate partner or a child of the other person, or to a child of the other person's intimate partner."
III. Brief Factual Context
[5] I received, in writing, three 'Peace Bond Applications', each filled out by a separate, self-represented informant. Each alleges a form of IPV. The applications are filled out by hand on a standard publicly available form.
[6] The standard form is two pages. Part I of the form is to be filled out by the informant and makes no reference to any section of the Criminal Code. There is no obvious space for the informant to specify what type of peace bond is being sought, and none of the three informants has stipulated on the form which section they are proceeding under. Part II is to be filled out by the "Justice of the Peace". Under the heading "Directions to Court Staff" an option is listed indicating "[p]repare s. 810 Peace Bond Information and Summons." The form appears to have been created in 2021. I take judicial notice that it is easily locatable and downloadable by the public on the Province of Ontario's official website. It does not appear to have been updated in response to the introduction of s. 810.03.
[7] One of the applications was brought to the attention of a justice of the peace. The justice's endorsement provides that "due to the IPV component, request for peace bond (810.03) should be directed to Provincial Court Judge". I am not able to discern whether the other two applications were brought before a justice of the peace or simply directed to my attention by court staff based on the endorsement in the other matter or some other operational direction.
IV. Analysis
[8] The court is in the early stages of working out, how, operationally, peace bond applications citing IPV should process following the recent amendment introducing s. 810.03. My goal is not to critique the process followed in the case of the applications before me. I am not sitting in appeal of the justice of peace who referred the application(s) to a provincial court judge. Having received the applications, however, it is incumbent on me to determine whether the referral is appropriately made.
[9] In my view the process followed in these cases was flawed. I draw this conclusion from the following premises:
(1) Section 810 peace bonds and s. 810.03 peace bonds are procedurally and substantively distinct. The differences may matter to an informant.
(2) An informant, rather than the court, must decide which type of order they are seeking, and which process they are engaging. In the applications before me, the informants, no doubt doing their best to navigate the court system, and using government-issued forms, have not signaled their selection. By deeming nonspecific peace bond applications to be applications under s. 810.03, the court, no doubt well-intentioned, usurped the informants' own choices.
(3) Deeming an informant alleging fear of IPV to proceed under s. 810.03 can only be justified if s. 810.03 is interpreted as implicitly excluding the applicability of s. 810 to those circumstances. Such a conclusion does not appear to be supported by the prevailing jurisprudence, and in any event should only be considered following a more comprehensive process wherein the issue is raised and argued with participation of both the informant and defendant.
Sections 810 and 810.03 are Distinct
[10] Sections 810 and 810.03 are procedurally and substantively distinct. Section 810 applies in circumstances of reasonable grounds to fear personal injury, damage to property, or distribution of an intimate image without consent. Section 810.03 applies in circumstances of reasonable grounds to fear a person will commit an offence causing personal injury to that person's child, that person's intimate partner, or that intimate partner's child. Other differences include:
(1) A s. 810.03 information must be received by a provincial court judge, while a s. 810 information is received by a justice of the peace.
(2) A s. 810 peace bond has a maximum duration of 12 months, while a s. 810.03 peace bond can have a duration of up to two years if the defendant was previously convicted of an offence in the commission of which violence was used against any former or current intimate partner of the defendant or any child of any former or current intimate partner or of the defendant.
(3) In the case of an Indigenous informant or defendant, under s. 810.03 the provincial court judge shall consider whether, instead of issuing a peace bond, it would be more appropriate to recommend that Indigenous support services, if any are available, be provided. There is no equivalent requirement under s. 810.
(4) A section 810 peace bond may be varied on application of the informant or the defendant, while a s. 810.03 peace bond may be varied on application by the informant, the defendant, the Attorney General, or the person on whose behalf the information is laid.
[11] There are also differences in the articulated sample conditions which might apply to each type of recognizance, though both provide for additional reasonable conditions: s. 810.03(6) and s. 810(3.02).
The Choice of Process is the Informant's, Not the Court's
[12] The processes of both ss. 810 and 810.03 are informant-initiated. Both provide that if the informant meets the conditions set out, they "may lay" the information. While the court has discretion as to whether to issue a peace bond, it is the informant's choice to seek either type of recognizance, and the informant's choice as between them. Except for a transition provision, discussed further below, there is no statutory support for the choice to reside with any other party, or the court.
[13] An informant alleging IPV may have any number of reasons to prefer one process over the other. And they may have reason to prefer the s. 810 process over the s. 810.03 process, despite the latter's potential benefits. They may allege reasonable fear of IPV in conjunction with a fear of damage to property, and may wish to hedge their bets in the event they are successful only in demonstrating the latter. They may wish to avoid or engage the Attorney General's standing to apply to vary an order. They may be aware that locally, the s. 810 process is moving more swiftly than the s. 810.03 process.
[14] I am not naïve to the fact that most informants are self-represented laypersons. Few will have received legal advice attuned to the niceties of the peace bond provisions. I am not persuaded, however, that this provides a compelling basis to remove their agency. Nor is it appropriate for the court, whether represented by an intake clerk, a justice of the peace, or a judge, to assume or make a decision on an informant's behalf.
The Overlap Between ss. 810 and 810.03
[15] The court would be only justified in deeming an informant to be pursuing s. 810.03 peace bond in circumstances of fear of IPV if the court concluded that, by enacting s. 810.03, the legislature implicitly excluded s. 810 from applying to IPV. My first impression is that a finding of implied exclusion is unsupported by the law respecting conflict and overlap between provisions. But in any event, it is a conclusion that should not be drawn without being raised and considered with the full participation of the informant and the defendant—and possibly the Attorney General, whose participatory rights are also impacted by the selection.
[16] As noted above, s. 810 applies in circumstances of reasonable grounds to fear personal injury, damage to property, or distribution of an intimate image without consent. Section 810.03 applies in circumstances of reasonable grounds to fear a person will commit an offence causing personal injury to that person's child, that person's intimate partner, or that intimate partner's child. The provisions thus overlap. In fact, on the face of the provisions, grounds for a s. 810.03 recognizance would necessarily also be grounds for a s. 810 recognizance, under the 'personal injury' branch.
[17] The Supreme Court of Canada addressed overlapping provisions in Thibodeau v. Air Canada, 2014 SCC 67, at para. 92:
Courts presume that legislation passed by Parliament does not contain contradictions or inconsistencies and only find that they exist when provisions are so inconsistent that they are incapable of standing together. Even where provisions overlap in the sense that they address aspects of the same subject, they are interpreted so as to avoid conflict wherever this is possible.
[18] This presumption of coherence may be even stronger where, as here, the two provisions are enacted by the same level of government: Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, at paras. 89-90.
[19] The presumption can be rebutted by evidence that one of the provisions was meant to apply exhaustively to the facts in question: see, for example, R. v. Craig, 2009 SCC 23, at para. 48; Schwartz v. Canada, [1996] 1 S.C.R. 254, at paras. 53-54. Courts generally take a restrictive approach to determining whether there is a conflict or "implied exclusion" of the more general provision: see R. v. Williams, [1944] S.C.R. 226.
[20] I am reluctant to come to a definitive conclusion on the question of overlap and conflict of these two provisions at the ex parte stage of a peace bond application, without the issue being raised and argued by any party on a proper evidentiary record. But I will make the following observations.
[21] Sections 810 and 810.03 do not, on their face, conflict with one another. They are related but separate tools which can be engaged to address overlapping subject matter. The provisions trigger distinct consequences, but there is nothing inconsistent about an informant having the authority to select what process to engage. Had Parliament intended to remove the applicability of s. 810 to IPV-related fear, it could have very easily adopted clear language to achieve that aim.
[22] I am also mindful that the implied exclusion rule has not been adopted to exclude the court's jurisdiction to issue common law peace bonds as a result of the enactment of statutory peace bonds: R. v. Parks, [1992] 2 S.C.R. 871.
[23] I recognize that Parliament passed a transition provision applicable to s. 810 peace bond informations laid but not finally determined prior to the coming into force of s. 810.03. Section 8 of the amending statute set out that if an information had been laid under s. 810 before s. 810.03 came into force by a person who fears on reasonable grounds that another person will commit an offence that will cause personal injury to the intimate partner or a child of the other person, or to a child of the other person's intimate partner, and a provincial court judge has not made a final determination with respect to the information, the information is deemed, on that day, to have been laid under subsection 810.03. This provision appears aimed at pre-empting any confusion which might arise for IPV-related peace bond informations mid-process, and at permitting those eligible informants to have the benefit of a s. 810.03 peace bond without having to restart the process from scratch before a judge. It does not, in my view, signal an intention to remove the choice of process from informants once the transition period ends, or to convert all future s. 810 informations into s. 810.03 informations where IPV is referenced. Again, if Parliament intended a permanent 'deeming' to continue, it could have easily crafted a clear provision to do so.
[24] It is not for me to close the door to future arguments that s. 810 must cede to s. 810.03 in certain circumstances. The implied exclusion rule is applied contextually. Issues may arise, for example, with respect to Indigenous defendants who under s. 810 would be deprived of the benefit of being referred to Indigenous support services. But those determinations should be addressed in the context of a full record with the participation of the necessary parties. Implied exclusion of s. 810 should not be deemed on the court's own motion, at the early ex parte stage of a peace bond application, without the participation of the impacted parties.
V. Conclusion and Next Steps
[25] For the reasons above, absent a considered determination that s. 810 is implicitly excluded from applying to circumstances of IPV, informants alone decide whether to apply for a s. 810 or s. 810.03 recognizance. In making an application, they must stipulate what order they are seeking and what process they are engaging. If they fail to do so, the court must seek that clarity, before the matter can proceed.
[26] There is no singular correct way that this might be achieved, though updating the publicly available forms to prompt an informant to clarify their intention would appear to be a sensible step. Use of generic umbrella language like 'peace bonds', which may refer to s. 810 peace bonds, s. 810.03 peace bonds, and even other specialized types, should be discouraged. The term has become problematically ambiguous. It obscures what is in reality an increasingly nuanced scheme for different types of preventative orders.
[27] I cannot direct the availability of duty counsel services to provide summary advice to self-represented informants on these matters but note it would be very helpful.
[28] Depending on the circumstances, the court might need to make a direct inquiry of an informant. Without a clear indication from an informant, court staff cannot determine how the application should be processed. For the benefit of local court staff, I include, as schedules to this endorsement, a temporary guidance and example form. These are intended to assist intake staff who receive generic peace bond applications, until such time as a local, regional, or provincial directive is in place.
[29] I do not wish to cause delay for the three informants whose applications have been brought to my attention. I will therefore direct a court appearance for each matter on September 26, 2025, at 9:30 am in courtroom C, so that I may canvass the informants' intentions and proceed accordingly. They may attend virtually or in person. They may, alternatively, file with the court a clear directive to receive their application as an application under s. 810 or s. 810.03, before that date. That direction may use the example form provided and can be brought directly to my attention by court staff.
[30] Court staff are further directed to send this endorsement to the informants using the contact information provided on the application forms, and to advise them of the next court date.
Released: September 18, 2025
Signed: Justice G. Jenner