CITATION: R. v. Lall, 2015 ONSC 2709
COURT FILE NO.: M15/14
DATE: 20150424
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
DWAIN LALL
Applicant
Stefania Fericean
for the Respondent
Diana M. Lumba
for the Applicant
HEARD: June 24, 2014
THEN J.:
[1] This application raises the vexing issue of whether a preliminary hearing judge has the jurisdiction to impose a common law peace bond. I have concluded, for reasons which I will elaborate, that so long as a provincial court judge in the course of a preliminary hearing engages in a separate hearing that conforms with the rules of natural justice to impose a peace bond, the provincial court judge acting in his capacity as a justice of the peace retains the jurisdiction to order a peace bond upon an appropriate evidentiary foundation.
the facts
[2] On January 14, 2014, the applicant appeared before Provincial Court Justice O’Donnell in Toronto for a preliminary inquiry on an Information charging that he on October 12, 2013, entered Ms. Nature Blackman’s house with the intent to commit an indictable offence, assault and also aggravated assault.
[3] At the preliminary inquiry Ms. Blackman testified that over the years she and the accused had five children together, that he had neglected her and her children and that she had suffered years of violence and abuse at his hands. Nevertheless, she testified she still loved him.
[4] With respect to the specific charges before the court the evidence disclosed that Ms. Blackman had given a statement to the police the day of the offences and a second statement the next day. The second statement had been videotaped but was not given under oath or subject to a K.G.B. caution. Both statements were to the same effect, alleging that the applicant had attended at her home uninvited and that an argument ensued with regard to one of the children. She told him he would no longer be seeing the children and that he was to leave. She pushed him and threatened to call the police if he hit her. He then knocked her down and tried to leave. He called her names and when she hit him in the face, he assaulted her causing serious injuries. He apologized afterward.
[5] At the preliminary hearing however she resiled from her statements to the police and denied the applicant had committed the offences. She explained that she suffered the injuries earlier the same day when she found the applicant talking with two women and was angry that the applicant had time to do so but not to be with his family. She testified that a fight ensued between her and the two women and that she obtained her injuries as a result of the fight.
[6] She testified that she knew the police would be coming to her house to check into unrelated damage to her window. She explained that she wanted the applicant arrested and jailed for previous assaults during their 10 year relationship. She was also concerned that Children’s Aid might take her children away if they discovered that the children were present during the fight with the two women so she decided to blame the applicant. She testified that she had not told the truth earlier because she was embarrassed at admitting that she had lied.
[7] The Crown sought to adduce the videotaped statement on the basis that the necessity and reliability threshold had been met. The preliminary inquiry judge ruled that the statement was inadmissible since the reliability threshold had not been met. On the basis of this ruling the Crown conceded that there was no evidence to support a committal for trial.
[8] At this juncture, the preliminary inquiry judge notified both parties that he was entering into a common law peace bond hearing. He stated the following:
THE COURT: Okay, thank you. Mr. Alvares, I do have significant concerns based on Ms. Blackman’s testimony about whether or not I should engage my common-law authority to impose a peace bond on Mr. Lall. Obviously you have time to discuss that with him and you have time to determine whether or not you wish to call evidence on that issue; the Crown also has time to – to determine its position on the matter but it seems to me that based on Ms. Blackman’s evidence, there is a long history of domestic violence whether it is made out in this case and that the Queen’s peace as it were is in significant danger of being compromised not only in relation to Ms. Blackman but in relation to the safety and emotional security of their children of whom there are five if there continues to be contact between them.
So, I will leave you to discuss that with Mr. Lall and take as long as you want to determine what you want to do about it, what position you want to take. If you want to address that on another day, that is perfectly acceptable but it seems to me subject to – to being persuaded otherwise that that is something that ought to be very seriously considered.
[9] Defence counsel requested 30 seconds to consult with his client and indicated that his client did not wish to show cause why a peace bond should not be imposed.
[10] The court then proceeded to outline the terms of the peace bond that he proposed to impose including a term prohibiting the applicant access to a specified area within the general area of Jane and Finch.
[11] Initially, the applicant was not agreeable to the condition because he grew up in that area and many of his friends and family remained there. However, when invited by the court to set a date for hearing and to call evidence in order to show cause or simply to discuss the issue further with his lawyer, the applicant indicated that he was prepared to abide by the condition and enter into the peace bond that day.
[12] The court invited submissions from the Crown who indicated he had nothing to add. The court indicated that although he was unable to determine where the truth lay in relation to the offence before the court he found on a balance of probabilities that there was a significant history of violence based on the evidence of Ms. Blackman, which he accepted as credible, requiring the imposition of a peace bond to prevent a breach of the peace. The judge expressed himself as follows:
…it seems very clear, certainly more clear on a balance of probabilities, that there has been a pattern of significant domestic violence in your relationship and that you are the author of that. I am satisfied that public safety, including both the physical safety of Ms. Blackman and the emotional wellbeing of your children who are necessarily affected by whatever happens to their mother is significantly engaged here and as such I think it is essential that there be a common law peace bond for a period of 18 months and that will require you to keep the peace and be of good behavior.
[13] The court then proceeded to explain the terms of the peace bond to the applicant as well as the possible consequences of a breach. After the applicant signed the peace bond the preliminary inquiry judge discharged him on all of the criminal charges before the court stating the following:
Thank you Mr. Lall, the three criminal charges against you I am discharging you on them so you are free to go. The terms of the bail order that applied to you until now have now expired and the terms of the peace bond are now in effect.
position of the parties
[14] The applicant relies on R. v. Bender, 2004 ONCJ 312, a decision of the Provincial Court, for the proposition that a preliminary inquiry judge had no jurisdiction to order a common law peace bond and accordingly, submits the peace bond must be quashed on that basis. Alternatively, even if a preliminary inquiry judge had the jurisdiction to impose a common law peace bond upon the accused, he was not entitled to make credibility findings and accordingly the peace bond must be quashed for want of a proper evidentiary foundation. Finally the peace bond should not be granted as the accused failed to receive appropriate notice of a peace bond hearing and also because the peace bond hearing was initiated by the preliminary inquiry judge of his own motion.
[15] The respondent submits that Bender, supra is wrongly decided and not binding on this court. The respondent conceded that a preliminary inquiry justice’s jurisdiction to conduct a preliminary inquiry is entirely derived from statute and that the court loses jurisdiction over an accused if the judge fails to comply with a mandatory provision of the Criminal Code in relation to preliminary inquiries pursuant to R. v. Deschamplain 2004 SCC 76, 2004, S.C.C. 76. However, it is submitted that when the preliminary inquiry justice exercised his common law jurisdiction to impose a peace bond on the applicant before his discharge at a preliminary hearing he was embarking on a discrete proceeding with its own rules and procedures authorized at common law and entirely separate from a preliminary inquiry. Accordingly, whether or not he complied with his statutory duties in relation to the preliminary inquiry is entirely irrelevant to his jurisdiction to impose a valid peace bond. Moreover, the court complied with the requirements of natural justice outlined in R. v. Musoni, 2009 12118 (ON SC), [2009] O.J. No. 1161; upheld by the Court of Appeal, 2009 ONCA 829; leave to appeal to the Supreme Court denied [2009] S.C.C.A. No. 534. The accused was given adequate notice of the intention to hold a peace bond hearing and specifically declined the opportunity to have a show cause hearing in order to adduce evidence or make submissions either immediately or at a later date.
[16] Finally, the respondent submits that the initiation of a peace bond hearing by the court of its own motion is not fatal to its validity.
analysis
[17] The power of a provincial court to issue a common law peace bond is a century-old power finding its roots in English law and has been affirmed by the Supreme Court in MacKenzie v. Martin, [1954] S.C.R. 362 and more recently in R. v. Parks, 1992 78 (SCC), [1992] 2 S.C.R. 871. The Court in Parks, supra, specifically recognized the jurisdiction of a provincial court judge to impose a peace bond on someone who has not been found guilty of an offence on the basis of preventative justice but cautioned that this power should only be exercised based on a proven factual foundation which raises a probable ground to suspect future misbehavior (See: Parks, supra, para. 63).
[18] It is noteworthy to observe that with the enactment of the Criminal Code Canada moved to a regime whereby nearly all criminal offences became codified. However, the common law peace bond is one of the few exceptions to the statutory regime. This is due to the fact that peace bonds act as a preventative measure, rather than as a punishment. As stated by Atkins J. in R. v. Chohan, 1968 849 (BC SC), [1969] 1 C.C.C. 19 (BSSC) at para. 23:
I have already stated the conclusion that the making of an order by way of preventive justice whereby a person is bound to keep the peace is not a conviction. In short, it does not involve a finding that the person against whom the order is made has committed any offence. This being so, the provisions of s.8 [now s. 9 C.C.] do not prevent exercise of the jurisdiction which in my view existed at the time of the enactment of the present Code.
[19] As for the jurisdiction of a provincial court judge acting under the Criminal Code the Supreme Court in R. v. Deschamplain, supra, affirmed the principle that a preliminary inquiry judge who fails to abide by a mandatory provision of the Criminal Code will lose jurisdiction. At para. 12 Major J. stated:
There is no dispute that the jurisdiction of a preliminary inquiry judge is statutory and not inherent.
(See also R. v. Doyle, 1976 11 (SCC), [1977] 1 SCR 597 and; R. v. Forsythe, [1980] 2 S.C.R. No. 268)
[20] As indicated earlier the applicant relies heavily on the decision in Bender, supra, which is virtually factually identical to the case at bar. In each case the evidence on the preliminary hearing had been completed, the Crown agreed that the accused should be discharged and in each case it was proposed that a common law peace bond hearing be held. However, in Bender, supra, the Crown made the proposal that a peace bond be issued, while in the instant case it was the judge who took the initiative. Also in Bender the judge discharged the accused prior to his consideration of whether a peace bond should be imposed, while in the instant case the judge discharged the accused after the peace bond was imposed.
the narrow approach
[21] In Bender, supra, the issue for Knazan J. was whether the inherent jurisdiction of a justice to order someone to keep the peace prevailed over the statutory limitations on a preliminary inquiry judge. He found that by applying a “narrow” logical approach or a “broader” purposive policy based approach he was led to the same conclusion, i.e. a preliminary inquiry judge has no jurisdiction to order a common law peace bond. With respect to the “narrow” approach Knazan J. stated the following at paras. 21-22:
The evidence has been completed. Crown counsel has advised me that there is no more evidence and agreed that the accused should be discharged. S. 548 is mandatory. If I carry it out and discharge the accused, the preliminary inquiry will be over and he will no longer be before me – there will be nothing requiring him to remain in the court and listen to any order I might make.
On the other hand, even assuming for argument’s sake that I have jurisdiction in the middle of the inquiry to make an order to keep the peace, if I do not discharge the accused, but instead proceed to hear an application for an order binding him to keep the peace, I will have failed to carry out my mandatory statutory duty to discharge or commit under s. 548. The law is clear that at the moment I fail to comply with a mandatory statutory duty, I lose jurisdiction. I repeat what was said in Forsythe and Deschamplain” jurisdiction will be lost by a magistrate who fails to observe a mandatory provision of the Criminal Code.
[22] The Crown relies upon R. v. Fehr, [1997] B.C.J. No. 154, a decision of the British Columbia Supreme Court which rejected the submission that a loss of statutory jurisdiction resulted in the loss of common law jurisdiction as it related to the imposition of a common law peace bond. In Fehr, supra, the accused was successful in bringing a “no evidence” motion for a directed verdict at trial. At this juncture the Crown sought an order for the imposition of a peace bond. The Court acquitted the accused and immediately entered into a common law peace bond hearing and imposed a peace bond. On his application for judicial review of this decision the applicant argued that a provincial court judge was functus for the purposes of imposing a common law peace bond in circumstances where there was no evidence to convict the accused. McEwan J. held that the jurisdiction to impose a common law power is inherent in the office of the Justice of the Peace and therefore is independent of any powers derived from statute. McEwan J. stated the following at paras. 13 and 16:
The petitioner argues, moreover, that the jurisdiction of a Provincial Court Judge is limited to those matters which are within the statutory authority of the Provincial Court, and in his role as a Justice of the Peace, to be “authorized” jurisdiction granted by the Chief Judge of the Provincial Court, pursuant to S.25 of the Provincial Court Act. He submits that there is no “Common Law” jurisdiction which may be exercised by a Provincial Court Judge. …
Without going through the cases in detail, it is quite apparent that there inheres in the office of a justice of the peace the power to make an order to keep the peace. This power has been recognized by the Supreme Court of Canada in a recent case, R. v. Parks 1992 78 (SCC), 75 C.C.C. (3d) 287. Although a majority of the Justices identify significant limits to its application, and some speculate on whether such orders will necessarily survive Charter scrutiny, none of them suggest that there is no such power.
[23] He continued at para. 32 as follows:
The petitioner’s submission that at the close of evidence the Court was “functus” and that what came after was some sort of informal discussion requiring the petitioner’s consent cannot be accepted. The Court at all times had its common law jurisdiction. At the point in the proceedings where the peace bond was under consideration, the Court was entitled to take account of any additional evidence given or submissions made by counsel.
(emphasis added)
[24] The respondent points out that as in British Columbia every justice of the Ontario Court of Justice has all the powers of a Justice of the Peace by virtue of s. 5 of the Justice of the Peace Act, R.S.O. 1990, c.J.4.
[25] In my view, Fehr, supra is helpful in a number of ways in determining the validity of the peace bond imposed in the instant case.
[26] First, from Fehr, supra, as well as Parks, supra, it is clear that a common law peace bond may be imposed after the court has entered an acquittal or where there is insufficient evidence to convict. The respondent submits, and I agree, that it is illogical to posit a distinction between a justice of the Ontario Court of Justice conducting a trial who has become functus as a result of having entered an acquittal and a Justice of that court conducting a preliminary inquiry who is not entitled to convict but who has discharged the accused based on the insufficiency of evidence. In both situations, 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.
[27] In my view once an acquittal has been entered at trial and equally once a discharge has been entered at a preliminary inquiry the jurisdiction to conduct those proceedings is at an end and the justice is no longer bound by any statutory restrictions that may attach to those proceedings but rather is free to conduct any other proceeding that the justice has jurisdiction to conduct.
[28] Accordingly, I respectfully disagree with the approach taken by Knazan J. in Bender, supra, that once the accused is discharged “the preliminary inquiry will be over and he will no longer be before me – there will be nothing requiring him to remain in the court and listen to any order I might make”. In my view it was open to Knazan J. when the application for a peace bond was made prior to discharge, to have adjourned the application to be heard immediately after the discharge was made or to a future date. By doing so there would be no issue as to jurisdiction and the accused would be bound to attend by court order. In my view, the approach taken by the court in Fehr, supra, would have been the preferable procedure both on the part of the court in Bender as well as in the instant case where the justice purported to enter into a common law peace bond hearing prior to discharging the accused. In my view had the judge in the instant case discharged the accused and then proceeded with the common law peace bond hearing there would have been no issue as to his jurisdiction to do so.
[29] However, the more difficult issue under the narrow approach in Bender is the situation where, as in the instant case, the application for a common law peace bond is made and heard prior to the entry of a discharge at the preliminary hearing. The claim is made in Bender that if the mandatory duty to discharge is not made prior to the hearing of the common law peace bond application jurisdiction is lost for failure to observe a mandatory provision of the Criminal Code.
[30] The respondent concedes that a preliminary inquiry justice’s jurisdiction to conduct a preliminary hearing is entirely derived from statute and the court loses jurisdiction over an accused if the justice fails to comply with a mandatory provision of the Criminal Code in relation to preliminary inquiries. However, it is the respondent’s position that the applicant has failed to establish that a loss of jurisdiction in relation to the conduct of a preliminary inquiry is relevant to the justice’s jurisdiction in relation to the exercise of his common law powers to impose a peace bond. It is the respondent’s essential position based on Fehr, supra, that just as a trial judge can entertain a common law peace bond when a justice is functus or without jurisdiction to exercise his statutory powers as a trial judge and is no longer constrained by statute, it is equally available to a preliminary inquiry justice even if the justice is without jurisdiction to conduct a preliminary hearing, to nevertheless conduct a common law peace bond hearing. The source of jurisdiction for the imposition of a peace bond is the common law whereas the source of trial or preliminary inquiry jurisdiction is statutory as outlined in the Criminal Code. In other words, the jurisdiction to impose a valid peace bond does not depend on when the peace bond hearing is conducted but rather on whether the common law requirements of a common law peace bond have all been met.
[31] I am in agreement with the respondent’s position. In addition, it is important to note that the preliminary inquiry and a common law peace bond hearing are separate proceedings. A preliminary inquiry is backward looking as the burden is on the Crown to adduce some evidence of each essential ingredient of a criminal offence said to have been committed for the purpose of determining whether to commit the accused for trial or to discharge the accused. In performing this function the justice is not permitted to assess the credibility of the evidence. In contrast, the common law peace bond hearing is forward looking in the sense of focusing on preventing a future breach of the peace. The burden is on the Crown on a balance of probabilities to adduce evidence that a breach of the peace by the accused is likely. In performing that function the justice is required to assess the credibility of the evidence (See R. v. Musoni, supra, paras. 22-25, 51-52).
[32] In addition, the accused must be provided with natural justice requiring the accused to obtain appropriate notice that a peace bond will be sought and by giving the accused the opportunity to show cause why a peace bond should not be imposed by adducing evidence and making submissions.
[33] Indeed, in R. v. MacKenzie, 1945 67 (ON CA), [1945] O.R. 787 (ONCA). Robertson C.J.O. held that the common law peace bond proceedings were civil and not criminal by their very nature. At para. 9 he stated the following:
We have the express admission of counsel for the respondent that there was no crime on the part of the appellant, either charged or proved. He was charged with conduct that, it was alleged, tended towards a breach of the pubic peace, but, as admitted by counsel for the respondent, his conduct did not amount to a breach of the peace. To restraint the liberty of a subject where there has been no crime committed is, beyond question, an interference with a civil right, and it would seem equally clear that the law that warrants it cannot be criminal in the proper sense.
(emphasis added)
(See also: Robert C. Hunter Q.C “Common Law Peace Bonds: the Power of Justices of the Peace to Administer “Preventive Justice” (1978) 1 C.R. (3d) 70.
[34] In my view, because the preliminary inquiry and the common law peace bond are separate proceedings the jurisdiction to conduct a common law peace bond proceeding prior to the entering of a discharge is available even if the jurisdiction to further conduct the preliminary hearing is lost because the justice is conducting the peace bond hearing in his capacity as a justice of the peace and not as a preliminary inquiry judge. It is only when the justice purports to impose a common law peace bond in his capacity as a preliminary inquiry justice that a jurisdictional problem arises.
the broad approach
[35] Under the broad approach, Knazan J. in Bender, supra relied on two main points:
The lack of an evidentiary basis to impose a common law peace bond, and;
The fact that the accused does not have appropriate notice that a peace bond will be sought.
[36] With respect to the requirement of appropriate notice, I adopt the views of Durno J. with respect to the fairness of notice expressed in Musoni, supra at para. 27-28:
While the preferred practice is for the prosecution and defence to assess the case and determine if a peace bond is the appropriate resolution before a trial date is set or at least well in advance of a trial date, it is often on the morning of trial that the concerns noted above crystallize. When that occurs, decisions have to be made by the accused. While for some it might be preferable to have many hours or days to make those decisions, the reality is that the decision is made with input from counsel in a relatively short period of time. In some cases, a peace bond resolution will have been discussed well in advance of the trial date and the accused advised of the nature of the bond and the implications of entering a bond. In other cases, the proposal for such a resolution is an “11th hour” offer.
While the appellant, without prior experience before the criminal courts, may now feel that he should have had more time to consider his options, that a decision to enter a peace bond and have charges withdrawn occurred in 10 to 15 minutes, is neither unusual nor does it, in itself, raise the specter of a miscarriage of justice or inference that it was not validly entered. The critical time for his decision is the time it was made and not what emerges over time after the decision is made.
[37] In the instant case, O’Donnell J. gave the accused and his counsel notice that he was considering the imposition of a common law peace bond and on two occasions invited the applicant to consult with counsel and either to call evidence or to show cause why the peace bond should not be imposed. After consulting with counsel, the applicant consented to the imposition of the peace bond. This is not a situation in which an unrepresented applicant, once informed that a peace bond was being considered, did not understand his rights or was not given time to prepare or defend against the imposition of a peace bond. In my view, the notice given to the applicant was adequate and caused no unfairness to the applicant in the circumstances.
[38] The requirement that the imposition of a common law peace bond must be based upon a proven factual foundation was accepted by the Supreme Court in Parks, supra. Sopinka J. expressed the point at para. 63 as follows:
This Court has recognized the existence of a common law preventative justice power in addition to the specific statutory power to make an order to keep the peace pursuant to an information laid under what is now s. 810 of the Criminal Code, R.S.C., 1985, c. C-46 : Mackenzie v. Martin, 1954 10 (SCC), [1954] S.C.R. 361. However even at common law this power has significant limits. In Mackenzie, at p. 368, Kerwin J. quoted from Blackstone on the nature of the power:
This preventative justice consists in obliging those persons, whom there is probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen; by finding pledges or securities for keeping the peace, or for their good behaviour.
Several lower court decisions have similarly recognized that this common law power cannot be exercised on the basis of mere speculation, but requires a proven factual foundation which raises a probable ground to suspect of future misbehaviour. See: R. v. White, Ex p. Chohan, 1968 849 (BC SC), [1969] 1 C.C.C. 19 (B.C.S.C.); Re Regina and Shaben, 1972 358 (ON SC), [1972] 3 O.R. 613 (H.C.J.); Stevenson v. Saskatchewan (Minister of Justice), (Q.B., June 8, 1987, unreported).
(emphasis added)
[39] In Bender, supra, Knazan J. held that the requisite factual foundation cannot be established at a preliminary hearing as the preliminary hearing judge has no jurisdiction to make credibility findings. At paras. 32-34, Knazan stated the following:
So, although Parks establishes the jurisdiction of a provincial court judge to order someone who is before them to keep the peace, it does so in a context. That context is a trial where the judge hears evidence that can form the factual basis of the order. In listening to the witnesses in this case, I heard no such evidence, because a factual basis requires that I believe the witnesses. But I was not listening to the witnesses with a view to believing them or not; I have no jurisdiction to listen to them in that way because I have no jurisdiction to rule on their credibility. This is fundamental: R. v. Arcuri 2001 SCC 54, 157 C.C.C. (3d) 21. And of course, the defendant could not be expected to cross-examine them with a view to persuading me not to believe them, when I am without jurisdiction to rule on credibility.
The evidence at a preliminary inquiry does not provide the proven factual foundation that Parks says is required before the common law jurisdiction can be exercised. A preliminary inquiry does not provide a factual foundation for anything other than determining whether or not the evidence is sufficient to order that the accused stand trial. Therefore the underlying justification for holding that any justice has jurisdiction to order an accused to keep the peace does not exist when a judge is holding a preliminary hearing.
In order for a preliminary hearing judge to issue such an order, he would have to hear the witnesses again. But there is nothing in Part XVIII that gives a preliminary inquiry judge jurisdiction to hear witnesses that he has already heard, or keep a discharged defendant before the court for another hearing.
[40] The respondent concedes that in relation to the duties of a justice conducting a preliminary inquiry to either commit the accused for trial or to discharge the accused, the justice cannot assess credibility of the evidence but must assess the evidence merely to determine if there is some evidence of the essential elements of the offence charged.
[41] The respondent submits that the applicant has not pointed to any authority save for Bender for the proposition that it was not open to the justice in a separate proceeding to rely on viva voce evidence, given under oath at the preliminary hearing, for a purpose other than the conduct of the preliminary inquiry.
[42] There is in my view some force to this submission because the evidence of the complainant with respect to a long history of violence toward her was not adduced to support a committal for trial but rather was offered by the complainant as an explanation for why she gave a false statement to the police that she was now recanting. In other words, the evidence was not relevant even to purposes of the preliminary inquiry with respect to either a committal or a discharge.
[43] More importantly in my view, is the fact that in this case the applicant did not challenge but consented to the evidentiary foundation for the peace bond. In those circumstances while the justice did make a finding of credibility it was not strictly speaking necessary for him to do so.
[44] In Musoni, supra, the trial had commenced and the Crown offered to resolve a weak case by way of a common law peace bond. After consulting his lawyer the accused agreed to do so. The trial judge indicated he did not need to be provided with a factual foundation but was content to rely solely on the consent of the parties. Durno J. confirmed that a common law peace bond must be based on findings of fact and not speculation, but concluded that the words of the information in combination with the accused’s consent to enter the peace bond was a sufficient evidentiary foundation notwithstanding that no credibility findings were ever made by the trial judge. Durno J. stated the following at paras. 49-52:
No doubt the prudent course here would have been for the judge to hear an overview or summary of the circumstances. What the trial judge had before him was the information alleging criminal harassment although it was never read in court, counsel’s agreement of the resolution, that the appellant did not wish to show cause and the agreed upon terms. Was that enough?
While I suspect that the appellant’s complaint was that Ms. Nawrat was not called to testify, there was no requirement that she testify. I agree with Martin J. that it is not necessary to call oral testimony in every peace bond application regardless of the type of bond, whether it was a statutory or common law bond. I also agree that the evidence may be given by counsel to provide the background to support a finding that a bond should be ordered.
When dealing with a common law peace bond there is no information sworn so that source of information that was available in Bilida is not available. There was an information before the trial judge that alleged the appellant criminally harassed Ms. Nawrat over a period of time in the past. Counsel provided His Honour with the suggested term that the appellant have no contact with Ms. Nawrat for one year. Counsel told the trial judge that the appellant did not seek to show cause why he should not enter the recognizance to keep the peace. While it is a very close call, I am persuaded that this record provided the trial judge with a sufficient basis upon which to make an independent determination that the bond should issue.
In reaching this conclusion, the distinction between the objective of common law peace bonds and statutory bonds is important. This was not an application at which the judge would have to determine: if a complainant feared on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common law partner or child or would damage his or her property (s. 810); if a complainant feared on reasonable grounds that another person will intimidate a justice system participant, commit a criminal organization offence or a terrorism offence (s. 810.01); if a complainant feared on reasonable grounds that another person will commit an enumerated sexual offence against one or more persons who are under the age of fourteen years (s. 810.1); or if a complainant feared on reasonable grounds that another person will commit a serious personal injury offence (s. 810.2). 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. On the information before him the trial judge could make an independent determination that there were grounds to require the appellant to sign the bond.
[45] In my view, while the preliminary inquiry judge in the instant case did make a credibility finding with respect to the complainant’s evidence of a history of violence such finding was not necessary to constitute an appropriate evidentiary foundation for the valid imposition of the peace bond. It is clear from the record that the applicant understood that the evidentiary foundation for the peace bond was the sworn evidence of the complainant with respect to his history of violence. He did not challenge that evidentiary foundation although given the opportunity to do so. Rather, he accepted that evidentiary foundation by consenting to the peace bond. In my view, the so-called broad approach outlined in Bender, supra, does not constitute an obstacle to the imposition of a peace bond in the circumstances of this case.
[46] Finally, the applicant submits that even if the preliminary inquiry judge had jurisdiction he should not have exercised it on his own motion. Although in Parks, supra, Lamer C.J. and Cory J. dissented on this point the applicant relies upon the following passages from the majority on this issue. Sopinka J. stated the following at para. 69:
I note that there still exists the possibility of an information being laid pursuant to s. 810 of the Criminal Code. This, of course, is subject to the evidentiary basis required under that section, “that the informant has reasonable grounds for his fears” (s. 810(3)), and to constitutional challenge. If such a proceeding is to be initiated, it should not be done so by this Court acting proprio motu.
(emphasis added)
[47] At paras 74-75 McLachlin J. stated:
In addition to the difficult issues raised by an order restricting a person's liberty on account of an act for which he has been acquitted, I have concerns whether further proceedings are appropriate in the circumstances before us. Mr. Parks has been living in the shadow of these charges since May 24, 1987, over five years. His acquittal is now confirmed. We are told he has been making courageous efforts to re-establish his life. Should he now be embroiled in a further set of proceedings concerned, not with his guilt or innocence, but with the maintenance of his liberty?
Generally, the courts do not grant remedies affecting the liberty of the subject unless they are asked to do 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)
[48] Laforest J. agreed with the reasons of Sopinka J. and McLachlin J. and in addition identified certain practical difficulties with respect to the imposition of a peace bond in the circumstances of that case. He concluded at para. 61:
It appears, then, that the judiciary is not practically equipped to administer a "keep the peace order" in the circumstances of this case. For this reason, along with the reasons of my colleagues, I would not remit this case back to the trial judge for the consideration of such an order. I would accordingly dismiss the appeal and uphold the acquittal of the respondent.
[49] The respondent submits that these passages clearly illustrate that the majority in Parks was addressing the appropriateness of the Supreme Court of Canada raising the issue for the first time after years of litigation and arguably in the absence of any evidentiary foundation that the recurrence of Parks’ condition would lead to a future breach of the peace in circumstances where the imposition of a peace bond would be highly impractical. I agree with the respondent that the Supreme Court cannot be taken to have prohibited a trial judge or a judge conducting a preliminary inquiry from instituting a common law peace bond hearing on his or her own motion. In my view, by using the word “generally” McLachlin J. did not preclude a judge of first instance from initiating a peace bond hearing, although no doubt it will generally fall to the Crown to do so for the reasons articulated by McLachlin J.
[50] In the case at bar, while the record is silent as to the reason for the preliminary inquiry judge initiating the common law peace bond hearing, it is not unreasonable to surmise that he may have done so precisely because the Crown failed to do so in light of the decision in Bender, supra.
[51] For all of these reasons the application is dismissed.
THEN J.
RELEASED: April 24, 2015
CITATION: R. v. Lall, 2015 ONSC 2709
COURT FILE NO.: M15/14
DATE: 20150424
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
DWAIN LALL
Applicant
REASONS FOR JUDGMENT
THEN J.
RELEASED: April 24, 2015