CITATION: R. v. Petre, 2013 ONSC 3048
COURT FILE NO.: 3/13
DATE: 20130528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
STEFAN PETRE
Appellant
K. Walker, for the Crown
Mr. Petre, self-represented
HEARD: May 15, 2013
TROTTER J.
[1] The common law peace bond is sometimes used as a safeguard to address criminal allegations that fall short of the mark. When delivering the happy news of an acquittal, judges sometimes quell the jubilation by requiring the not guilty person to keep the peace and be of good behaviour and to abide by all sorts of other conditions. This judgment does not question the legitimacy of this venerable power of the courts.[^1] Instead, it considers the procedural safeguards that must be respected when that power is exercised.
[2] Mr. Petre was charged with assaulting his wife. In the context of a deteriorating marriage, a squabble developed over mounds of garbage and debris that had accumulated in the front yard of the matrimonial home. Mr. Petre’s wife arranged for a garbage bin to be delivered to their home so that the garbage could be taken away. A short while after the bin was delivered, Mr. Petre and his wife got into an argument and a shoving match ensued.
[3] Following a brief trial, at which Mr. Petre represented himself, the learned trial judge found Mr. Petre not guilty, largely based on the principle of de minimis. After providing brief reasons for this reasonable finding, the trial judge said: “Now, that does not end the matter.” He expressed concern about future interactions between Mr. Petre and his wife. Without inviting submissions, the trial judge ordered Mr. Petre to enter into a common law peace bond to prevent contact between the two. The peace bond was to last 12 months and contained the specific conditions that Mr. Petre have no contact with his wife (except through counsel or in family court) and that he possess no firearms. It was in the amount of $500, with no deposit required.
[4] As the trial judge was attempting to explain the conditions, the following exchange occurred:
Mr. Petre: Can I say something?
The Court: No. This time is my time to talk.
After some further discussion, during which Mr. Petre was attempting to understand the difference between the common law peace bond and the s. 810 peace bond that the Crown had offered by way of resolution prior to trial (and which Mr. Petre rejected), the following exchange took place:
Mr. Petre: Can I refuse to sign or I have to sign?
The Court: Only if you don’t want to go to jail?
Mr. Petre: So if I don’t sign, I go to jail.
The Court: Because you’re in breach of the order, yes.
[5] Not surprisingly, Mr. Petre signed the order. He now appeals, contending that the order should not have been made in the first place. In support of his appeal, Mr. Petre offers numerous reasons why the order was improper, reasons he was not allowed to tell the trial judge. There may be some merit to these submissions. However, I allow the appeal solely on the basis that Mr. Petre was denied the right to be heard before the order was made.
[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), 2009 12118 (ON SC), 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), 1945 67 (ON CA), 85 C.C.C. 233 and R. v. Budreo (2000), 2000 5628 (ON CA), 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.
[7] It would seem axiomatic that, before a liberty-depriving order of a criminal court is made, the person who will be affected by the order is entitled to say something about it. But there is Ontario authority that suggests otherwise. The case of Re Broomes and the Queen (1984), 1984 3467 (ON SC), 12 C.C.C. (3d) 220 (Ont. H.C.) is sometimes referred to as authority for the proposition that an accused person need not be given notice of the possibility of a peace bond being imposed at the end of the proceedings. As a corollary, if notice is not required, then submissions are not necessary either. Re Broomes is very similar to this case. At the end of a trial, the judge acquitted the accused, and then bound him over, without prior notice and without requesting submissions. Mr. Broomes sought to review the decision by way of certiorari. In dismissing the application, Steele J. said at p. 221:
It was submitted to me that in accordance with the decision of Regina v. White ex parte Chohan, 1968 849 (BC SC), [1969] 1 C.C.C. 19 a decision of a single judge of the British Columbia Supreme Court that the applicant had been denied natural justice in not having been warned before the order binding him to keep the peace was made that such an order could be contemplated. I disagree with that decision. I accept the decision in R. v. Woking Justices, ex parte Gossage, [1973] 2 All E.R. 621 (Eng. C.A.) at p. 623 where Lord Widgery C.J. stated as follows:
It seems to me that a very clear distinction is drawn between, on the one part, persons who come before the justices as witnesses, and on the other, persons who come before the justices as defendants. Not only do the witnesses come with no expected prospect of being subjected to any kind of penalty, but also the witnesses as such, although they may speak in evidence, cannot represent themselves through counsel and cannot call evidence on their own behalf. By contrast, the defendant comes before the court knowing that allegations are to be made against him, knowing that he can be represented if appropriate, and knowing that he can call evidence if he wishes. It seems to me that a rule which requires a witness to be warned of the possibility of a binding-over should not necessarily apply to a defendant in that different position.
I think from the extracts from Lord Parker CJ's judgment that I have read, Lord Parker CJ would have taken the same view; but, be that as it may, it seems to me to be putting it far too high in the case of an acquitted defendant to say that it is a breach of the rules of natural justice not to give him an indication of the prospective binding-over before the binding-over is imposed. That is not to say that it would not be wise, and indeed courteous in these cases for justices to give such a warning; there certainly would be absolutely no harm in a case like the present if the justices, returning to court, had announced they were going to acquit, but had immediately said "We are however contemplating a binding-over; what have you got to say?" I think it would be at least courteous and perhaps wise that that should be done, but I am unable to elevate the principle to the height at which it can be said that a failure to give such a warning is a breach of the rules of natural justice. I would accordingly refuse the application.
[8] With respect, the law has evolved since Re Broomes. Although that case was decided shortly after the Charter was entrenched, the current Charter era demands much more in terms of procedural fairness in this context.
[9] The common law peace bond was considered in R. v. Parks (1992), 1992 78 (SCC), 75 C.C.C. (3d) 287 (S.C.C.). The accused was charged with killing his mother-in-law. He was acquitted on the basis of non-insane automatism as a result of sleepwalking. In dismissing the Crown’s appeal, the court considered whether the circumstances called for a common law peace bond to prevent Mr. Parks from harming anyone else in the future. Ultimately, a majority of the court decided not to deal with the case in this manner.
[10] Dissenting on this point, Lamer C.J.C. expressed concerns that the accused would be released without any restrictions on his liberty whatsoever. In the absence of a request by the Crown, he considered the appropriateness of a peace bond to manage the risk of further harm. The Chief Justice reproduced the passage quoted above from Re Broomes and concluded that authority existed to impose a peace bond after an acquittal. In the following passage (at p. 301), he touched on some of the procedural considerations at play:
In appropriate cases of outright acquittals on grounds of automatism measures that would reinforce sleep hygiene and thereby provide greater safety for others should always be considered. If the trial judge considers that making such an order would be in the interest of the public, he should so advise the parties and consider whatever evidence and submissions are tendered. In those situations where an order is made, it should be complied with in the same way as any other order of the court.
If conditions should be imposed on Mr. Parks they will restrict his liberty. It follows that the decision to impose such conditions and the terms of those conditions should not violate the rights guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms. However, such a hearing is justified, as the sleepwalker has, although innocently, committed an act of violence which resulted in the death of his mother-in-law…
I would therefore refer this matter back to the trial judge so that he can hear the parties on this point and decide, upon the evidence before him, whether such an order is appropriate. If this proves to be the case, it will be up to the trial judge to determine the content of the order. [emphasis added]
Other members of the Court did not agree with the Chief Justice on this issue, finding it impractical (LaForest J.) and unfair (Sopinka J.), especially given the passage of time (McLachlin J. (as she then was)). Indeed, some members of the court questioned the propriety of imposing such an order following an acquittal. Moreover, McLachlin J. said (at p. 315):
Generally, courts do not grant remedies affecting the liberty of the subject unless they are asked to so by the Crown, which is charged with instituting such legal processes as it deems appropriate having regard to the public interest and fairness to the individual involved. In the absence of an application by the Crown, I hesitate to remit the case for consideration of further measures against the accused. [emphasis added]
[11] While a majority of the court rejected the propriety of a peace bond in the circumstances, it is clear that all eight judges[^2] were concerned about the importance of procedural safeguards, given the deprivation of liberty involved with a common law peace bond. It would appear that, at a minimum, an accused person has the right to make submissions and call evidence before a common law peace bond is imposed.
[12] Since Parks, there has been growing support for the view that the failure to afford an individual an opportunity to make submissions or representations before a peace bond is imposed is a breach of the rules of natural justice: see R. v. Charles (1990), 1990 7559 (SK QB), 61 C.C.C. (3d) 239 (Sask. Q.B.) and R. v. Lynch, 2001 BCSC 1426, 2001 B.C.S.C. 1426 and R. v. Wells (2012), 252 C.R.R. (2d) 260 (Alta. Q.B.), at para. 23. It is also likely a breach of s. 7 of the Charter.
[13] There are many useful things that might be said in opposing the imposition of a peace bond, especially in the face of an acquittal. But to have any meaning at all, the accused person must be given an opportunity to respond and, in some cases, to call evidence. These procedural safeguards are easily delivered. They need not be elaborate or time-consuming. If the accused person is self-represented, some explanation of the relevant procedure and the lower standard of proof might also be required.
[14] In a case such as this one, an accused person may wish to resist the order based on the evidence adduced at trial. Submissions might be made about the potential for harassment or abuse that exists when a peace bond is imposed in the context of rancorous social/domestic situations. Moreover, an accused person might wish to make submissions about the propriety of ordering a peace bond when this had previously been the subject of resolution discussions.[^3]
[15] Mr. Petre did not have an opportunity to contest the order that was made by the judge, acting proprio motu. He was forced to appeal in order to voice his objections. As Mr. Petre was denied the right to be heard, I quash the peace bond. Given that Mr. Petre has been subject to this order for seven months, without incident, I decline to make any further order.
[16] This decision has only dealt with the issue of the procedural safeguards that must accompany the imposition of a common law peace bond. The other issues arising from Parks referred to above (i.e., the propriety of a peace bond following an acquittal and imposing a peace bond in the absence of a request by the Crown) are left for another day.
[17] In concluding, I wish to acknowledge the fair manner in which Ms. Walker, for the Crown, approached this case.
TROTTER J.
Released: May 28, 2013
CITATION: R. v. Petre, 2013 ONSC 3048
COURT FILE NO.: 3/13
DATE: 20130528
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
STEFAN PETRE
Appellant
REASONS FOR JUDGMENT
TROTTER J.
Released: May 28, 2013
[^1]: See MacKenzie v. Martin, 1954 10 (SCC), [1954] S.C.R. 361 and the helpful discussion in Robert C. Hunter, Q.C., “Common Law Peace Bonds” (1978), 1 C.R. (3d) 70.
[^2]: Stevenson J. heard argument in the appeal but took no part in the judgment of the court.
[^3]: That is what happened here and without any impropriety. It would appear that the Crown (not Ms. Walker) offered to resolve the case by way a peace bond under s. 810 of the Criminal Code and Mr. Petre refused. Importantly, following the acquittal, the Crown did not then request a peace bond. Potentially more problematic is the situation when the Crown rejects an offer to resolve the case by way of a peace bond but then requests one after a not guilty finding. In some circumstances, this might be considered objectionable.