R. v. Liverance, 2020 ONSC 1753

Court File and Parties

COURT FILE NO.: CR 19-200-00AP DATE: 20201008 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – ANDREW LIVERANCE Appellant

COUNSEL: J. Armenise, for the Crown Respondent M. Psutka, for the Appellant

HEARD: October 7 2020

BEFORE: Catriona J. Verner

1Mr. Liverance was accused of dangerous driving and harassing behaviour. The complainant, Mr. Liverance’s former girlfriend, sought a s.810 peace bond. After a hearing, on October 17, 2019, his Worship Justice of the Peace Conley imposed such a bond on Mr. Liverance for 12 months. It expires in one week. Mr. Liverance is now appealing that order (he wants the peace bond removed from his record, so that it will not impede future employment opportunities). His appeal was heard via Zoom meeting on October 7, 2020.

The Peace Bond Hearing

2At the peace bond hearing, the Justice of the Peace led the complainant through her examination-in-chief. She testified that she was in a relationship with Mr. Liverance until he ended it on July 26, 2019. At that point she owed him money and, through a lawyer, had informed him she was not going to repay him until he proved how much she owed.

3According to the complainant’s testimony, Mr. Liverance broke up with her in his vehicle, while driving dangerously fast and not stopping at stop signs. Then, between August 26 and 29, he phoned her a number of times from a blocked number, without leaving any messages. She deduced it was him since “nobody else would be calling [her] with no caller ID multiple times a day”. On August 17, he drove to her house to talk to her and on September 11, he followed her from school to a shopping mall and let the air out of the tires of her vehicle while she was shopping. Finally, she alleged that the Appellant “ended up stalking” her mother.

4The complainant testified that she went to authorities on September 12, 2019, although the summons was dated August 30. She did not suggest that there was any contact between the Appellant and herself between September 11 and October 17 (the date of the hearing).

5Mr. Liverance was unrepresented and clearly unfamiliar with court processes. The Justice of the Peace interrupted almost every question Mr. Liverance asked the complainant and ultimately cut the cross-examination short, as he felt it was harassing.

6The Crown called the complainant’s mother. She did not corroborate the complainant’s testimony that the Appellant ‘stalked’ her. Instead, she testified that she spoke to the Appellant on a single occasion, and that was after he asked if he could speak to her and she agreed.

7Mr. Liverance testified on his own behalf. As Crown counsel on appeal emphasized, Mr. Liverance was able to speak at length in examination-in-chief and was not cross-examined. He then called his mother as a supporting witness. One key aspect of the defence evidence was that the Appellant stopped having contact with the complainant in August (August 23 according to the Appellant and August 28 or 29, according to his mother). The Justice of the Peace stopped the examination-in-chief of Mr. Liverance’s mother, as he felt the questions were irrelevant.

8Mr. Liverance indicated an interest in bringing his phone records to court to prove that he did not make any phone calls between August 26 and 29, 2019. Mr. Liverance was unaware prior to the complainant testifying, that she was alleging he made phone calls on those dates. Despite that fact, the Justice of the Peace chastised the Appellant three times for not bringing his phone records to court with him and refused the Appellant’s request for an adjournment to get those records. The Justice of the Peace also refused the Appellant’s request for an adjournment to call other witnesses, noting that there would be no protection for the complainant in the interim.

9The Justice of the Peace then, without giving either party an opportunity to make submissions, rendered judgment. He concluded as follows:

The test for me is, is Ms. McCulloch afraid for her safety? Is this a situation where a peace bond would help to alleviate that fear? Is it a situation that in fact through the hearing, I have heard enough evidence that would satisfy me that Mr. Liverance should be ordered into a peace bond?

And I am satisfied.

The Grounds of Appeal

10The Appellant submitted that the trial judge:

(1) Failed to adhere to the principles of natural justice; and (2) Demonstrated an apprehension of bias.

(1) FAILURE TO ADHERE TO THE PRINCIPLES OF NATURAL JUSTICE

11The Appellant submits that the Justice of the Peace erred in not affording him a fair hearing before imposing a peace bond pursuant to s.810 of the Criminal Code.

12As Crown counsel emphasized, the Code does not state that the subject of a potential peace bond is entitled to a hearing. The Code only requires that the subject be summonsed to court and that the applicant satisfies the court, through evidence, that there are reasonable grounds to fear the subject. The relevant provisions include:

810 (1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person

(a) will cause personal injury to them or to their intimate partner or child or will damage their property; or

Duty of justice

(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division.

Adjudication

(3) If the justice or summary conviction court before which the parties appear is satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for the fear, the justice or court may order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months

13Although the Code does not prescribe a hearing, the common law has found that the subject of a potential peace bond is entitled to be heard. Lerner J. found on behalf of the Ontario Supreme Court in the pre-Charter case of R. v. Shaben (1972), 8 C.C.C. (2d) 422, that pursuant to the rules of natural justice, the subject of a potential common law peace bond was entitled to several procedural protections. In that case, the trial judge imposed peace bonds on three witnesses called at a trial without giving those witnesses notice of his intention to do so. On appeal, Lerner J. quashed the peace bonds and stated:

Clearly, this was a departure from the principles of natural justice and any purported exercise of jurisdiction was lost. The basic principles of universal application are that a person so affected: (a) be told the particulars of the charge against him; (b) is entitled to a hearing; (c) be given the right to call evidence; and (d) be permitted to make submissions on his own behalf.

To do anything less is a denial of natural justice. The Canadian Bill of Rights, 1960 (Can.), c. 44, s. 2(e):

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations

contains the provision for the right of a person to a fair hearing.

14In the post-Charter case of R. v. Parks (1992), 2 S.C.R. 871, Sopinka J. cited Shaben with approval to support his finding that a peace bond could only be imposed if there was a “proven factual foundation” supporting “probable grounds to suspect…future misbehaviour”. The concurring judgments of the majority in Parks all emphasized the seriousness of restricting the liberty of an individual without proof that the individual committed a crime beyond a reasonable doubt.

15Relying on Parks, Trotter J. (as he then was) found in R. v. Petre, 2013 ONSC 3048 that an individual facing a potential peace bond was entitled, at a minimum, to be heard. In that case, the subject of the common law peace bond was acquitted of the relevant charges at trial and then, without notice, the trial judge imposed a peace bond on him. After summarizing the reasons why an individual facing a peace bond should have the right to make submissions, Trotter J. concluded as follows:

[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.

16Trotter J. then outlined what the entitlements of the subject were in that case, considering the accused had already had a full trial:

[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.

17Lerner J. in Shaben and Trotter J. in Petre agree that at a minimum, the subject of a peace bond hearing is entitled to make submissions, and at least in some circumstances, is entitled to call evidence. Trotter J. added that if the subject is unrepresented, the adjudicator may need to provide guidance and assistance.

18Although those cases both involved common law peace bonds, there is no logical basis to differentiate the minimum requirements of procedural fairness for those facing a common law peace bond from those facing one under s.810 of the Criminal Code. If anything, the reverse is true, since the potential jeopardy for breaching a s.810 is more than the potential jeopardy for breaching a common law peace bond. A violation of a peace bond may be prosecuted under s. 127 of the Criminal Code, which – if proceeded by indictment – can attract a sentence of up to two years imprisonment. Whereas pursuant to s. 811, a violation of a s.810 peace bond can result in a sentence of up to four years.

19In Petre Trotter J. implied his analysis of minimum procedural protections would be the same for both:

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. ….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.

20I appreciate the courtrooms where these peace bond hearings are held are busy and the Justices of the Peace cannot be held to a standard of perfection. I also appreciate that since these hearings must be heard in a timely manner in order to having any meaning at all, they can not be protracted. However, the majority of the Supreme Court recognized in Parks that the imposition of a peace bond is a severe measure, as it restricts the liberty of an individual. And as noted by Trotter J. in Petre, the “procedural safeguards” of allowing the parties to make submissions, call evidence, and I add, cross-examine the Crown’s witnesses, “are easily delivered” and “need not be elaborate or time-consuming”.

Application to the case at bar

21I appreciate that the Justice of the Peace had a busy courtroom on the day of the hearing. However, he was still required to afford the Appellant a fair hearing. He failed to do so for the following reasons:

(i) The Appellant was not given the opportunity to make submissions

22It is undisputed that at a minimum, the subject of a peace bond hearing should be permitted to make submissions after the evidence has been presented. This entitlement is not just a formality. The submissions may alert the Justice of the Peace to evidence the Justice had not yet considered, may provide a different prospective on the evidence the Justice had considered, or may assist in interpreting the relevant legal principles.

23The Appellant was not afforded the opportunity to make submissions. The Justice of the Peace cut off the evidence of the Appellant’s final witness and went immediately into his reasons for judgment. The exchange was as follows:

LIVERANCE (TO HIS WITNESS): There is one date I’m going to ask about.

THE COURT: Okay, that’s fine.

WITNESS: And, and, and…

THE COURT: …I think that I understand

WITNESS: I’m…

THE COURT: …why you want to have this person as a witness, but I’m not hearing anything relevant and I’m done. I’ve heard enough.

LIVERANCE: No, no, I had an independent one, a selective call but I wasn’t prepared for today.

THE COURT: Okay. Thank you, you can step down now. All right, this is an unfortunate situation. We’ve got two young people that were in a relationship that broke up. You can stay ma’am, you don’t have to leave. Sit down. [The complainant and Mr. Liverance’s father were then both invited into the courtroom so that the Justice of the Peace could deliver his ruling. There was no invitation or opportunity for the Appellant or the Crown to make submissions.]

(ii) The unrepresented Appellant was not provided the assistance he was owed

24As recognized by Trotter J. in Petre, the Justice of the Peace had a duty to assist the unrepresented Appellant at his peace bond hearing. The duty to provide guidance to unrepresented litigants was more fully discussed by Lauwers J.A. in Morwald-Benevides v. Benevides, [2019] O.J. No. 6583:

As this court has noted, “it is well-accepted that trial judges have special duties to self-represented litigants, in terms of acquainting them with courtroom procedure and the rules of evidence”: Dujardin v. Dujardin, 2018 ONCA 597 at para. 37, repeated in Gionet v. Pingue, 2018 ONCA 1040 at para 30. The court added, at para. 31 of Gionet: “In ensuring that a self-represented litigant has a air trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case”, citing Davids v. Davids (1999), 125 O.A.C. 375 at para. 36. See also Manitoba (Director of Child and Family Services) v. J.A., 2006 MBCA 44, at paras. 19-20.

25In the case at bar, it was apparent that the unrepresented Appellant needed significant guidance on procedure. Instead of fulfilling this duty, the Justice of the Peace repeatedly mislead the Appellant as to what he was permitted to do:

(1) The Justice of the Peace interrupted the Appellant’s cross-examination of the complainant more than once to inform him he was not permitted to ask leading questions; (2) The Justice of the Peace prevented the Appellant from asking the complainant a question about a prior inconsistent statement; and, (3) The Justice of the Peace prevented the Appellant from providing hearsay evidence while he was testifying. Crown counsel on appeal concedes that hearsay was in fact admissible.

26Each of these interruptions by the Justice of the Peace was premised on an error of law and unfairly prejudiced the Appellant.

27The Justice of the Peace also unfairly dealt with the Appellant’s request for an adjournment to bring his phone records and call witnesses. At the beginning of the hearing, the Appellant indicated that he may need to call witnesses. The Justice of the Peace indicated that if, after hearing the Crown’s evidence, the Appellant still wanted to call witnesses, he would entertain an adjournment request at that time. However, after the Crown closed its case, the Appellant was never asked whether he still was interested in calling witnesses. After he testified, he clearly informed the court that he was interested in an adjournment to bring his phone records and call witnesses. (He claimed that his phone records would prove that the complainant’s evidence suggesting he called her many times between August 26 and 29, was false. Notably, there were issues with the complainant’s ability to identify the Appellant as the caller and if her evidence on this point was false, it may truly have impacted the determination of whether her fear of the Appellant was reasonable.)

28The Justice of the Peace rejected the adjournment request on the basis that it was brought too late in the hearing. He found the Appellant should have raised the issue earlier. Considering the Appellant had raised it earlier and considering he was unrepresented, the Justice of the Peace erred in dismissing the application on the basis of when it was raised.

29The Justice of the Peace also repeatedly stated that the Appellant should have brought the phone records with him to court, when in fact the Appellant could not have known before the hearing itself that the complainant was going to allege he called her on those dates.

30The Justice fell far short of his duty to assist the unrepresented Appellant at the hearing.

(iii) The Justice of the Peace unfairly curtailed the cross-examination of the complainant

31The Justice of the Peace further erred in finding that relevant questions, were “irrelevant”. In particular, the Justice found that the Appellant’s questions that showed that the complainant’s evidence was internally inconsistent based on the dates she provided (she agreed the Appellant broke up with her on September 26 because she had purchased a car, and he wanted to show that she had not purchased the car until September 28) were irrelevant. However, the complainant’s credibility was central to this hearing.

32The Justice of the Peace not only curtailed those questions about dates, but directed the Appellant to stay away from any questions pertaining to dates. This direction revealed the Justice’s failure to appreciate the importance of the dates in this case. The complainant testified in chief that she went to the police on September 12, but the summons was dated August 30 and notably, according to the Appellant, he stopped having contact with her at the end of August. Thus, her evidence as to when she went to the police may have been a fruitful area of cross-examination. Perhaps more importantly, there was the question of whether the complainant, who may have had reason to fear the Appellant before she went to the authorities (whether it was on September 12 or August 30), may not have had any reason to fear him as of the date of the hearing (October 17), since there was no suggestion he had made any contact with her in the interim. The complainant’s evidence as to when things occurred was arguably critical to determining whether a peace bond was necessary.

33More significantly, the Justice of the Peace erroneously curtailed the cross-examination of the complainant altogether. He cut off the cross-examination in the midst of questions that were seemingly pivotal to the necessity of a peace bond (on the issue of whether the complainant contacted police when she was allegedly fearful or waited until a later date):

LIVERANCE: Did you contact the police at all [to say] that you felt scared at the time?

COMPLAINANT: When?

LIVERANCE: Whilst it was apparently happening.

COMPLAINANT: What, what are we talking about?

THE COURT: Okay, so let’s – I’m going to stop right now. Because is becoming the same type of behaviour that we’re trying to prevent through a peace bond.

34Even if the Justice of the Peace had reason to find the tenor in which the Appellant asked the questions was harassing, he should have given the Appellant a warning or assisted him in asking questions that were relevant, before ending the cross-examination altogether.

35There was evidence that the Appellant had further relevant questions to ask the complainant. For example, he testified that on September 23, 2019 – while awaiting the peace bond hearing – the complainant went to his school (her former school), knowing he should be there. If that was in fact true, it would seemingly be dispositive of her alleged need for an order keeping him away from her. The Justice of the Peace’s actions prevented this pivotal area of cross-examination.

36As a result of the aforementioned errors, I find that there was a departure from the principles of natural justice in this case.

(2) REASONABLE APPREHENSION OF BIAS

37The Appellant further submits that there was a reasonable apprehension of bias. The Court of Appeal for Ontario summarized the relevant test in R. v. Ibrahim, 2019 ONCA 631 (Ont. C.A.), as follows:

The test for establishing a reasonable apprehension of bias is well known — would a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21.

In Canadian law, judges are presumed to be impartial. As this court said in R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18: "There is a strong presumption of judicial impartiality and a heavy burden on a party who seeks to rebut this presumption." See also Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59; R. v. S.(R.D.), [1997] 3 S.C.R. 484, at para. 117, per Cory J.; R. v. Ruthowsky, 2018 ONCA 552, at para. 21.

38In the following case of R. v. Mills, 2019 ONCA 940, the Court articulated the test a little differently:

228 The question is whether the trial judge's … behaviour, when examined in the context of the trial as a whole, lead a reasonable observer to conclude that the trial judge was not an adjudicator "disinterested in the outcome, and open to persuasion by the evidence and submissions": R. v. S. (R.D.), [1997] 3 S.C.R. 484 (S.C.C.), at para. 104.

39The need for an adjudicator to keep its mind open to persuasion is fundamental to the fairness of every judicial proceeding. To that end, in Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory, 2015 SCC 25, Abella J. adopted the following passage from Cameron A.J. of the Constitutional Court of South Africa in South African Commercial Catering and Allied Workers Union v. Irvin & Johnson Ltd. (Seafoods Division Fish Processing), 2000 (3) SA 705 (South Africa Constitutional Ct.):

... "absolute neutrality" is something of a chimera in the judicial context. This is because Judges are human. They are unavoidably the product of their own life experiences and the perspective thus derived inevitably and distinctively informs each Judge's performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality ... . Impartiality is that quality of open-minded readiness to persuasion — without unfitting adherence to either party or to the Judge's own predilections, preconceptions and personal views — that is the keystone of a civilised system of adjudication. Impartiality requires, in short"a mind open to persuasion by the evidence and the submissions of counsel"; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding. [Citations omitted; Bold added.]

40The courts have repeatedly emphasized that there is a presumption of impartiality and that it is a high threshold to show an apprehension of bias. However, this was a clear case. It is apparent on the record that the Justice of the Peace was not “open to persuasion by the evidence and submissions”. Indeed, he had decided the case before the Appellant had finished calling his evidence or made any submissions.

Conclusion

41In light of my findings, the s. 810 peace bond must be quashed. I would ordinarily order a new hearing. However, Crown counsel conceded that in light of the fact the Appellant was subject to the peace bond for almost a year, no new hearing should be ordered. I therefore quash the peace bond and make no further order.