COURT FILE NO.: 85/16 DATE: 20170518 SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL TORONTO REGION
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – ALTHEA REYES Appellant
COUNSEL: Martin Sabat, for the Respondent Althea Reyes, in person
HEARD: March 15, 2017
K.P. WRIGHT J.
Introduction
[1] On May 30, 2016 the Appellant, Althea Reyes pleaded not guilty to the offences of criminal harassment and fail to comply with a recognizance in the Ontario Court of Justice. At the end of 2½ days of trial, Crown counsel invited the trial judge to dismiss the charges against the Appellant and have her enter into a common law peace bond.
[2] On September 9, 2016 two things happened. First, the trial judge, after a hearing, ordered the Appellant to enter into a common law peace bond with conditions. Second, the trial judge dismissed the Appellant’s application for costs against the Crown.
[3] In her materials, the Appellant argued that the trial judge erred in denying her application for costs and in ordering her to enter into a common law peace bond. In oral submissions, the Appellant withdrew her appeal in relation to costs, but maintained her position as it relates to the peace bond.
Peace Bond
[4] The Appellant submits that the common law peace bond should be set aside on the following grounds:
(1) A common law peace bond can only be made on consent and there was no consent; (2) The Crown must prove that the complainant “fears for their life” and failed to do so; (3) The peace bond hearing breached the rules of natural justice; and (4) The trial judge erred in not requiring the complainant to be cross-examined at the peace bond hearing.
[5] The following will address each point in turn.
1. Jurisdiction and Requirements of a Common Law Peace Bond
[6] The Appellant is incorrect in her suggestion that a peace bond can only be issued on consent. It is open to a defendant to contest the grounds of a peace bond or not. When a defendant does not consent, the Crown must prove, on the balance of probabilities, that there are grounds for issuing the peace bond. This is precisely what occurred in the case at bar and thus there is no merit to this ground of appeal.
[7] I would note as well that at the peace bond hearing the Appellant suggested that the matter was improperly before the court as no information was filed. However, an information is only required for a peace bond under s. 810 of the Criminal Code, R.S.C., 1985, c. C-46. The hearing in this case was for a common law peace bond. Consequently, the court had jurisdiction to hear the matter despite no information being formerly sworn and presented.
R. v. Musoni (2009), 243 C.C.C. (3d) 17 (Ont. S.C.J.); affirmed (2009), 2009 ONCA 829, 248 C.C.C. (3d) 487 (Ont. C.A.)
2. Threshold for Granting a Peace Bond
[8] The Appellant submits that the Crown failed to prove that the complainant “fears for their life”. The Crown was not required to prove that the complainant “fears for their life”. This submission once again conflates the common law peace bond with the statutory peace bond. As explained in R. v. Musoni in para. 21:
The differences in the applications are that a s.810 peace bond is based on a sworn information while a common law peace bond generally is not; a s.810 bond can be for a period not to exceed 12 months while there is no maximum period for a common law bond; a s.810 bond is based on a more limited basis, that the complainant's fears [sic] 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 will damage his or her property. A common law peace bond has a wider scope, a reasonably apprehended breach of the peace; and a s.810 peace bond has specific provision for breach allegations pursuant to s.811 which creates a hybrid offence of breaching a peace bond order under various Criminal Code sections. Where the election is by indictment the maximum penalty is two years in jail and when prosecuted summarily the maximum penalty is six months. Where a common law peace bond is alleged to have been breached the prosecution is pursuant to s.127 of the Criminal Code, for disobeying a court order which has the same penalty provisions as s.811.
[emphasis added.]
[9] Consequently, the Crown was only required to prove, on a balance of probabilities, that there was a “reasonably apprehended breach of the peace”. This would include a reasonable apprehension of personal injury, but it is not limited to that ground.
[10] For the reasons below, the trial judge was correct in issuing a peace bond.
[11] The evidence before the court consisted of the evidence presented at the Appellant’s trial on criminal harassment charges as well as the Appellant’s testimony at the peace bond hearing. While I will not reproduce the full factual record, the following facts are relevant.
[12] In or around April 2013, the complainant and Appellant entered into a casual, intimate relationship. Over the course of the relationship, it became clear to the complainant that the Appellant had deceived him on several issues, including her real name. In or around 2015, the complainant told the Appellant on several occasions that he did not want to have any more contact with her. Despite his insistence, the Appellant continued to contact him and in December 2015, he came home to the Appellant in his apartment. The Appellant, without any apparent legal right, had entered his apartment and changed the locks. The complainant called the police and the Appellant left before they arrived. One of the responding officers testified that the complaint was visibly upset when he arrived on the scene.
[13] The complainant testified that on that night he:
Actually barricaded the door from the inside…you know, did the classic thing of moving furniture in front of the apartment and putting objects on top of the furniture so if there was the slightest movement of the door, the objects would fall and I would be awoken. I was scared
[14] Following this incident, the Appellant continued to contact the complainant despite his pleas for her to stop. The complainant became so distressed that he left his apartment one night and slept at his father’s. He testified that he was “still, for lack of a better word, scared.”
[15] At the peace bond hearing, the Appellant argued that since she had not tried to contact the complainant for a number of months, a peace bond was unnecessary.
[16] On these facts, it is plain that the trial judge made no error in ordering a peace bond. There was an ample evidentiary record upon which to conclude that the complainant reasonably feared for his safety and thus there was a reasonable apprehension of a breach of the peace.
3. Procedure and Natural Justice on the Peace Bond Hearing
[17] The Appellant’s third and fourth submissions can be collapsed into one. The issue is whether the peace bond proceeding breached the principles of natural justice.
[18] In R. v. Petre, 2013 ONSC 3048, 2013 CarswellOnt. 6954, Trotter J. discussed the procedural requirements of a peace bond hearing. Trotter J. held at para. 11 that “at a minimum, an accused person has the right to make submissions and call evidence before a common law peace bond is imposed.” Trotter J. further indicated at para. 14 that an order may be made “based on the evidence adduced at trial.”
[19] However, the evidentiary and procedural requirements must be assessed in light of the fact that peace bonds are “used routinely…to resolve criminal charges without a trial…Peace bonds save court time (R. v. Musoni, at para. 25). “Consequently, while a defendant has the right to make submissions and call evidence, it “is not necessary to call oral testimony in every peace bond application…evidence may be given by counsel to provide the background to support a finding that a bond should be ordered”. (R. v. Musoni, at para. 46)
[20] The rules of natural justice were followed in this case. The Appellant received notice two months in advance of the peace bond hearing. The Appellant was permitted to make submissions at the peace bond hearing and permitted to give evidence through taking the stand herself. While the Appellant was unable to lead evidence through three police officers she sought to subpoena the day of the hearing, as noted by the trial judge, she had ample opportunity to file these subpoenas prior to the day of the hearing and had no compelling excuse for failing to do so.
[21] Nor did the trial judge err in failing to facilitate the cross-examination of the complainant. It was open to the Appellant to call the complainant as her witness had she so desired. Moreover, the complainant was examined and cross-examined (though the cross-examination was not completed) in the previous criminal harassment trial. The same judge presided at this hearing and had before him the trial transcript at the peace bond hearing. While it is a concern that the Appellant was unable to complete her cross-examination of the complainant, given the expedient nature of peace bond applications as well as the otherwise fulsome evidentiary record, I find that this does not constitute a breach of natural justice.
[22] The trial judge did not err in ordering the Appellant to enter into a common law peace bond.
[23] For the reasons stated, the appeal is dismissed.
K.P. Wright J.
Released: May 18, 2017
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – ALTHEA REYES Appellant
REASONS FOR DECISION K.P. WRIGHT, J.
Released: May 18, 2017