ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: 126/13
DATE: 20140819
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SUKHVINDER TOOR
Appellant
Arish Khoorshed, for the Crown
Leo A. Kinahan, for the Appellant
HEARD: August 8, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of Cooper J.
dated July 26, 2013]
murray j.
[1] This is an appeal in which the appellant, Mr. Sukvinder Toor sought an order quashing the peace bond issued by Justice A. Cooper of the Ontario Court of Justice on July 26, 2013. I rendered my oral decision quashing the peace bond on August 8, 2014. After my decision was given, Mr. Toor’s counsel requested that a written decision be provided. Pursuant to that request, this written judgment is issued.
Facts
[2] The appellant was charged with breach of recognizance in which he was ordered to have no contact or communication directly or indirectly with two named individuals, Navdeep Toor and Harjeep Singh Jaswal. On May 3, 2013 a trial on allegations of breach of recognizance was commenced in front of Justice A. Cooper the Ontario Court of Justice. The trial was completed in June, 2013 and adjourned to July 26, 2013 for judgment. Mr. Justice Cooper found the appellant not guilty. In coming to this conclusion, Justice Cooper stated as follows:
It concerns me that this man does not want to pay support for the children he brought into the world, quite apart from his wife. It is also apparent from being cross-examined by Mr. MacKinnon….that Mr. Toor is an argumentative individual who may also be domineering, insulting and the assaultive person that his wife says he is. Overall, I believe the evidence of his wife over that of Mr. Toor.
However, this is a criminal case, and … his evidence has left me with a reasonable doubt according to branch two of W.(D.). Therefore, I find him not guilty, but I have decided to impose a peace bond for 15 months, and I will hear from counsel as to the conditions that should be in that peace bond.
[3] Pursuant to that invitation, the Crown Attorney in attendance that day, Ms. MacKenzie, asked that the court impose a condition that Mr. Toor attend a Partner Assault Response (PAR) Program. A PAR program is 16-week long program which provides specialized counselling and educational services to people who have assaulted their partners. Counsel for the appellant argued against the imposition of this condition.
[4] Mr. Justice Cooper then imposed a peace bond on the appellant for a period of 12 months with conditions that he keep the peace and that he attend a PAR program, notify the Halton Regional Police Service that he had registered for the program within 60 days and further notify the police within a 12-month timeframe that he had completed the program.
[5] Justice Cooper decided to impose the peace bond without giving any prior notice to the appellant that he was considering doing so and without hearing submissions except with respect to conditions which submissions were entertained after he announced his decision to impose the peace bond.
This Appeal
[6] The appellant asserts that he was denied natural justice and that he ought to have been given notice by Justice Cooper of the potential imposition of the peace bond and further allowed an opportunity to make submissions as to whether or not it should be imposed. In this case, there was no request made by the Crown to impose a peace bond and it is clear that the appellant was not given any notice of the potential of the peace bond being imposed and as a result was not allowed the opportunity to make submissions and\or call evidence. As a result, the appellant argues that Mr. Justice Cooper exceeded his jurisdiction by denying the appellant natural justice and procedural fairness as well as being denied his right to make full answer and defence.
[7] Furthermore, the appellant argues that the jurisdiction of the court to impose a peace bond must be based on an evidentiary foundation and that it is a jurisdictional error for the trier of fact to impose a peace bond on speculation or conjecture that a person had done something in the past that would justify apprehension that there may be a breach of the peace the future. The appellant asserts that in this case Mr. Justice Cooper imposed the peace bond based on speculation.
Decision
[8] In my view, this appeal succeeds on both grounds.
[9] Neither party questions the inherent jurisdiction of the court to require not guilty person to keep the peace and be of good behavior and to abide by other conditions provided such jurisdiction is exercised properly without committing error of law and in accordance with the principles of natural justice.
[10] In R. v. Musoni, 2009 12118 (ON SC), [2009] O.J. No. 1161, 243 C.C.C. (3d) 17, Durno J. discussed the nature of the common law peace bond. As Durno J. observed, an individual can be prosecuted for breach and there is a record kept of the peace bond even after it has terminated. In sum, a peace bond can have serious implications for an individual. A peace bond is a restriction of liberty.
[11] The issue of procedural fairness has been dealt with thoroughly by Justice Trotter in the case of R. v. Petre, 2013 ONSC 3048, [2013] O.J. No. 2428, 299 C.C.C. (3d) 246. At paragraph 7 of that decision Justice Trotter observed that while there are cases to the contrary, “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.” I can do no better than quote Justice Trotter in paragraphs 12- 15 of his decision wherein he stated:
Since Parks (1992), 1992 78 (SCC), 75 C.C.C. (3d) 287 (S.C.C.), 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.
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.
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.
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.
[12] I agree with Justice Trotter. In this case, Mr.Toor did not have an opportunity to contest the peace bond. This failure of natural justice was not remedied by allowing submissions made on conditions which would be imposed.
[13] On the appeal, counsel for Mr. Toor submitted that the observation by Justice Cooper that “this man does not want to pay support for the children he brought into the world, quite apart from his wife” was incorrect and that Mr. Toor did not ignore his obligations to pay support. Whatever the truth, the denial of natural justice meant that Mr. Toor had no opportunity to call evidence or make submissions in response to this or any other concern expressed by Justice Cooper as a reason for imposing the peace bond.
[14] Mr. Toor was denied the right to be heard and the peace bond imposed by Justice Cooper is quashed.
[15] I now proceed to the second ground for the appeal - that there was no evidence to support the imposition of a peace bond. Quite apart from the question of natural justice, as Justice Durno said in Musoni, the determination in a common law peace bond application is whether there are grounds to conclude that the accused may breach the peace in general or in relation to a specific person. The question then becomes: On the evidence before him could the trial judge make an independent determination that there were grounds to require the appellant to sign the bond?
[16] In my respectful opinion, Justice Cooper made a number of errors in his reasons for opposing a peace bond in this case. First, although an individual who does not wish to pay support for his children or his spouse may wish to ignore his obligations in a family law context, such considerations – even if true - are irrelevant for purposes of concluding that Mr. Toor has done something which justifies an apprehension that there might be a future breach of the peace. It is an error to consider such a fact in concluding that a peace bond is warranted. Secondly, Justice Cooper's conclusion that Mr. Toor is an “argumentative individual who ‘may be’ domineering, insulting and the assaultive person described by his wife” is merely speculative and does not justify an apprehension that there might be a future breach of peace. In R v Shaben et al. [1972] O.J. No. 1770, [1972] 3 O.R. 6138 C.C.C. (2d) 422, Lerner, J. correctly observed that the common law prerogative cannot be exercised on speculation or conjecture that a person had done something which will justify apprehension that there may in the future be a breach of the peace.
[17] For this reason too, the appeal succeeds and the peace bond is quashed.
Murray J.
Released: August 19, 2014
COURT FILE NO.: 126/13
DATE: 20140818
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
HER MAJESTY THE QUEEN
Respondent
– and –
SUKHVINDER TOOR
Appellant
REASONS FOR JUDGMENT
Murray J.
Released: August 19, 2014