Court File and Parties

Newmarket Court File No.: CR-19-7689-00MO Date: 2020-03-20 Ontario Superior Court of Justice

Between: Ouriana Tsetsenis and George Tsetsenis, Applicants (Defendants) – and – Sotirios Tsetsenis, Respondent (Informant)

Counsel: Mary Cremer, for the Applicants (Defendants) Marcy Segal, for the Respondent (Informant)

Heard: March 11, 2020

Before: Dawe J.

I. Overview

[1] On August 29, 2019 Sotirios Tsetsenis – who I will refer to as “the Informant” – laid two separate s. 810 Criminal Code peace bond Informations, one naming his mother Ouriana Tsetsenis as the defendant and the other naming his father George Tsetsenis. Both Informations state that the Informant fears for his safety because of his parents’ conduct a few days earlier, on August 25, 2019, “at the Country of Greece”. Specifically, the Information naming George Tsetsenis alleges that he uttered a threat to kill the Informant “when we get back to Canada”, while the Information naming Ouriana Tsetsenis alleges that “she pulled my head and hair and was with George Tsetsenis when he threatened to kill me.”

[2] The latter Information also has appended a further document titled “Particulars” that sets out further details of the Informant’s allegations. He states in this document that he had previously obtained a peace bond against his parents, although he provides no further details. He explains further that on August 25, 2019 he was vacationing with his family and in-laws in Greece when his parents came to the beach where he and his family were swimming. A confrontation ensued during which the Informant’s mother entered the water fully dressed and “pulled [the Informant’s] hair” and “swung [his] head around”, while his father threatened that “when we get back to Canada he would kill [the Informant].” The document also specifies the “location of allegation(s)” as “Argos, Greece”.

[3] It is common ground that the Informant and his parents all ordinarily reside in Ontario.

[4] The s. 810 applications came before Justice of the Peace D. Clark for a hearing in the Ontario Court of Justice on January 6, 2020. The Crown declined to intervene in the proceedings. Counsel for the Applicants raised a preliminary objection, arguing that the court had no jurisdiction to impose a s. 810 peace bond based on events alleged to have occurred outside Canada. The Justice of the Peace disagreed, and the s. 810 hearing has been scheduled to continue on April 6, 2020. [1]

[5] The two defendants – whom I will refer to as “the Applicants” – have applied to this Court for orders in the nature of certiorari, on two alternative bases. First, they seek an order quashing the Justice of the Peace’s decision that he has jurisdiction to proceed with the s. 810 hearing even though it involves allegations that they engaged in misconduct outside Canada. Second, they seek an order quashing the Informations on the ground that the place where the alleged misconduct is stated to have occurred – namely, “the country of Greece” – is insufficiently well-particularized.

[6] Their application was argued before me on March 11, 2020. The Informant was represented by his own counsel, but as in the court below the Crown declined to intervene or participate in the hearing.

II. Analysis

A. The territorial jurisdictional argument

[7] Section 6(2) of the Criminal Code provides that:

Subject to this Act or any other Act of Parliament, no person shall be convicted or discharged under s. 730 of an offence committed outside Canada. [2]

As a result, a criminal offence committed entirely outside Canada generally cannot be prosecuted in Canada even if the persons involved are all Canadian. [3]

[8] In the case at bar, the Informant claims that while he and his parents were all in Greece his parents did things that would have been offences under Canadian law if they had been done in Canada. However, since the alleged acts described by the Informant occurred entirely outside Canada, it is unlikely that his parents could be successfully prosecuted for them in Canada. [4]

[9] The Applicants’ position is that the same limits on Canadian criminal territorial jurisdiction that preclude criminal prosecutions in Canada for offences committed entirely outside this country should also apply to s. 810 peace bonds. In essence, they argue that they should not be made to enter s. 810 peace bonds based on allegations of wrongdoing in another country that could not be criminally prosecuted in Canada. They acknowledge that s. 6(2) of the Code has no direct application to s. 810 peace bonds, since an order under s. 810 is neither a conviction nor a discharge, but argue that the common law principles of territorial jurisdiction that have been codified in s. 6(2) still apply to peace bonds and lead to the same result.

[10] In my view, this argument is not supported by the text or history of s. 810 and, perhaps more importantly, cannot be justified on the basis of legal principle or policy.

[11] Beginning with the textual argument, s. 810 authorizes a justice to compel a defendant to enter into a peace bond when “satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for [his or her] fear” of the defendant. However, s. 810 does not expressly require these reasonable grounds to be based on conduct by the defendant that could be prosecuted criminally, either in Canada or elsewhere. The Applicants’ argument that a s. 810 peace bond order must be based on alleged conduct that would be prosecutable in Canada would require reading words into the statutory text that would significantly narrow its scope.

[12] This proposed limit is also difficult to justify from a historical perspective. Section 810 and the Code’s other specialized peace bond provisions [5] partially codify the common law peace bond power, which has its origins in the English common law judicial power to “bind over” persons as a preventive measure to ensure their future good behaviour. As Rowe J. explained in R. v. Penunsi, 2019 SCC 39 at para. 15:

The modern peace bond can be traced back as early as the 1300’s, to the common law practice of “binding over”. “Binding over” described a judicial authority to make preventive orders to maintain social order despite no specific crime having been charged, aimed at preventing a wide range of undesirable activity.

In MacKenzie v. Martin, [1954] S.C.R. 361 at p. 368, Kerwin J. (as he then was) adopted the following comment by Lord Goddard C.J. in R. v. County of London Quarter Sessions, [1948] 1 All E.R. 72, in which he explained that it was well-established that justices could bind over a person:

… not because he has committed an offence, but because they think from his behaviour he may himself commit or cause others to commit offences against the King’s peace. It is abundantly clear that for several centuries justices have bound by recognizances persons whose conduct they consider mischievous or suspicious, but which could not, by any stretch of imagination amount to a criminal offence for which they could have been indicted.

Given the breadth of the common law power on which s. 810 is based, it is in my view difficult to interpret s. 810 as requiring proof that the defendant has committed any prior offence, let alone an offence that would be prosecutable in Canada.

[13] Finally, and perhaps most importantly, limiting s. 810 peace bonds to situations where the defendant has done something in Canada to cause another person to reasonably fear for his or her safety cannot not in my view be justified as a matter of policy. As Rowe J. noted in R. v. Penunsi, supra, at para. 12, “[t]he peace bond is an instrument of preventive justice”, intended to prevent future breaches of the peace from occurring in Canada. If a person in Canada reasonably fears for his or her safety at the hands of a defendant who is also in Canada, it is not at all clear why the law should also insist that this fear be based on something the defendant previously did in Canada. Requiring the defendant to enter into a peace bond is not meant as a punishment for his or her past misconduct, but is intended to prevent future harm from occurring in Canada. The Applicants’ proposed approach would leave Canadian courts powerless to act in a wide range of readily foreseeable situations where future harm in Canada is reasonably anticipated based on prior events that took place elsewhere.

[14] Moreover, the principles of national sovereignty and international comity that underlie the traditional territorial limits on criminal prosecutions do not apply in the same way to peace bonds. As Lord Diplock noted in his concurring judgment in Treacy v. Director of Public Prosecutions, [1971] A.C. 537 at p. 561 (H.L.):

It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if we were to punish persons for conduct which did not take place in the United Kingdom and had no harmful consequences there.

However, ordering a person who is in Canada to enter an undertaking to keep the peace while in Canada does not intrude on the territorial sovereignty of any other state or offend the principles of comity between nations, even when the perceived need for such an order is based on the defendant’s prior misconduct in another country. The purpose of the order is not to punish the defendant for this prior misconduct, but to prevent future harm from occurring on Canadian soil. This latter concern falls squarely within the proper scope of Canadian legislative and judicial authority.

[15] In R. v. Greco, the Ontario Court of Appeal held that probation orders made by Canadian courts can have legal effect outside Canada. If s. 810 peace bonds have a similar extraterritorial effect – a question that I need not decide here – there may well be situations where it would be inappropriate for a Canadian court to make s. 810 orders against persons who have no real connection to Canada, when the only real effect of such orders would be to control these persons’ behaviour in other countries. There will also be practical obstacles to using s. 810 in such cases, since a defendant can only be ordered to enter into a s. 810 peace bond if he or she first “appears” before a Canadian court pursuant to s. 810(2) and (3), which can only happen if the defendant is physically present in Canada when the hearing is conducted.

[16] However, the problem of the potential extraterritorial impact of s. 810 orders does not arise here, since it is undisputed that the Informant and his parents are all Ontario residents and that the main object of ordering his parents to enter into a s. 810 peace bond would be to stop them from committing future breaches of the peace in Canada.

[17] In my view, if the Informant’s fear of his parents is found to be reasonable at a s. 810 hearing, the fact that he attributes this fear to their prior conduct in Greece would not create any jurisdictional impediment to an Ontario court ordering them to enter into s. 810 peace bonds in order to control their future behaviour in Canada. Accordingly, I do not believe the Justice of the Peace erred by holding that he had jurisdiction to proceed with the s. 810 hearings in this case.

B. The sufficiency argument

[18] In the alternative, the Applicants argue that the s. 810 Informations against them should be quashed because they fail to state with sufficient particularity where in Greece their alleged misconduct occurred.

[19] Criminal charge documents must conform with what are sometimes referred to as the “golden rules” of pleadings, namely, the “single transaction” and “reasonable information” rules. The latter rule has been codified in s. 581(3) of the Code, which provides:

A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count.

However, this rule is then qualified by s. 583, which provides, inter alia:

No count in an indictment is insufficient by reason of the absence of details where, in the opinion of the court, the count otherwise fulfils the requirements of section 581 and, without restricting the generality of the foregoing, no count in an indictment is insufficient by reason only that:

(g) it does not name or describe with precision any person, place or thing;

[20] In R. v. Boyko (1978), 43 C.C.C. (2d) 408 (Ont. Prov. Ct.), Genest J. concluded that these statutory pleadings rules apply to informations laid under what is now s. 810. [6] However, he based this conclusion on the specific language of what was then s. 729(1) (now s. 793(1)), which has since been repealed. Although s. 795 continues to make the provisions of Part XX apply to proceedings under Part XXVII, including s. 810 peace bond hearings, “with any necessary modifications”, it is at least arguable that the specific pleading rule in s. 581(3) is inapposite in the context of a s. 810 peace bond information. By its own terms, s. 581(3) applies only to “counts” in an information or indictment, with a “count” being defined by s. 2 of the Code to mean “a charge in an information or indictment”. An information laid under s. 810 does not charge the defendant with any offence, and since s. 810 only requires the justice to be satisfied that the complainant’s fear of the defendant is reasonable, the specific reference in s. 581(3) to “the act or omission to be proved against [the defendant]” makes little sense in this context.

[21] That said, I agree with the Applicants that whether or not s. 581(3) applies directly to a s. 810 information, they are entitled as a matter of basic fairness to know what it is they are alleged to have done that is said to have caused their son to reasonably fear for his safety so that they can respond to his allegations at the s. 810 hearing. The question I must consider is whether the Applicants are prejudiced in any meaningful way by the fact that the s. 810 Informations that have been laid against them state that their son’s fear is based on their conduct in “the country of Greece”.

[22] In R. v. Robinson, Rosenberg J.A. noted (at para. 23):

Whether an indictment or a count in an indictment meets the sufficiency requirement in this subsection [s. 581(3)] depends upon the facts and circumstances of each case. In determining whether the transaction has been sufficiently identified, the court will look not just at the wording of the indictment but also at the other material in the possession of the accused, such as Crown disclosure and the evidence called at the preliminary inquiry, if there was one.

The Applicants argue that a criminal charge that alleged the commission of an offence “in Canada” without naming a specific territorial division would violate the sufficiency rule. This may often be the case, but it would in my view depend on all of the surrounding circumstances and whether the particular transaction that is meant to be captured by the charge can adequately be identified, notwithstanding the failure of the charge to name a specific location. Indeed, s. 583(g) expressly provides that a failure to “describe with precision any … place” in a count will not be fatal if “the count otherwise fulfils the requirements of section 581”.

[23] In the case at bar, the Informant’s failure to state in his Informations exactly where in Greece he and his parents were when his mother allegedly assaulted him and his father allegedly threatened him is in my view substantially offset by the fact that the two Informations do specify a precise date – August 25, 2019 – and describe in some detail the acts that are said to constitute the assault and threat. In the face of these other details I cannot accept that the Applicants are genuinely unsure what their son is accusing them of having done, such that they will be unable to respond to his claims at the s. 810 peace bond hearing.

[24] Moreover, the fact that this is a peace bond application and not a criminal prosecution is in my view also highly significant. If the Applicants were charged with assaulting or threatening the Informant in Canada, it would be essential that they be able to identify the particular transaction that was captured by the charges, since they could not properly be convicted of any assaults or threats that were proved by the evidence at trial but that fall outside the scope of the charges before the court. However, the forward-looking nature of s. 810 proceedings makes this degree of precision less important: the justice must ultimately decide whether the Informant’s stated fear of his parents and what they might do in the future is reasonable, not whether it has been proved that they committed any specific acts of misconduct in the past.

[25] In any event, the failure of a criminal charge to set out sufficient details of the transaction captured by a count does not automatically render the offending count a nullity. Rather, the court can direct the prosecution to remedy the deficiency by providing particulars under s. 587 of the Code. In the case at bar, the s. 810 Information relating to Ouriana Tsetsenis already appends a statement of “Particulars” that specifies that the alleged altercation between the Informant and his parents occurred in Argos, Greece, and that also sets out considerable further detail about what the Informant claims happened during the incident. In my view, the Applicants cannot seriously contend that even with this additional information in hand they will not be able to fairly defend themselves at the s. 810 hearing because they will not really know what their son is accusing them of doing.

[26] It follows that I would not give effect to the Applicants’ alternative argument.

C. Disposition

[27] In the result, the applications for certiorari are dismissed.

The Honourable J. Dawe Released: March 20, 2020

Footnotes

[1] It is uncertain whether this scheduled hearing will be affected by the COVID-19 public health crisis.

[2] The Code also contains various exceptions to this general rule, none of which would seem to apply in the case at bar. No Canadian criminal prosecution of the Applicants for their alleged conduct in Greece has been commenced.

[3] See, e.g., R. v. Greco.

[4] Although the Informant describes his father as having threatened to kill the Informant “when we get back to Canada”, the actus reus of the offence of uttering a threat (Criminal Code, s. 264.1) was complete at the point that the alleged threatening words were said, regardless of the location where the conduct was threatened to take place.

[5] E.g., s. 810.01 (fear of a criminal organization offence, including intimidation of a justice system participant or a journalist); ss. 83.3 and 810.011 (fear of a terrorism offence); s. 810.02 (fear of an offence related to forced marriage or child marriage); s. 810.1 (fear of a sexual offence committed against a minor); and s. 810.2 (fear of serious personal injury).

[6] At the time Boyko was decided the pleadings rules were found in ss. 510 and 512, while the peace bond provision was found in s. 745.