Differences between Common Law Peace Bonds and Section 810 Peace Bonds
[Recognizances
issued under section 810 of the Criminal Code are informally and regularly
referred to as peace bonds, particularly by non-jurists. For ease of reference,
I will refer to them here as 810 peace bonds.]
A peace bond can be
obtained through an information sworn pursuant to s. 810 of the Criminal Code
or relying on the common law to require a person to enter a common law peace
bond without reference to s. 810 of the Criminal Code.
Re:
Regina v. Shaben et al. (1972), 1972 CanLII 358 (ON
SC), 8 C.C.C. (2d) 422.
The onus is on the
applicant on the balance of probabilities.
Mackenzie
v. Martin 1954 CanLII 10 (SCC),
[1954] S.C.R. 361 at 368.
Once the application is
made the accused can either seek to show cause why he or she should not enter
the bond, enter the bond as proposed or not show cause but contest one or more
of the suggested terms.
The applicant must
persuade the application judge that he or she fears for his or her safety and
the application judge must be satisfied that their fear is a reasonable one.
This fear need not be specifically stated by an applicant as the court can
infer it from the totality of the evidence received (see J.H. v. W.B. (2001), 2001 YKTC 502 (CanLII), 44 C.R. (5th) 39 (Y.T.
Terr. Ct.)).
Differences
Between Common Law and Section 810 Peace Bonds
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 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 a specific provision for breach allegations pursuant to s. 811
which creates a hybrid offence of breaching a peace bond ordered 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.
A peace bond is not a
finding of guilt or a criminal conviction.
A peace bond is preventative justice in order to keep the peace in
general and, in most instances, specifically in regards to one or more named
persons. An order that a common law
peace bond be entered reflects a finding by the court that there was a basis
for apprehending that the appellant would commit a breach of the peace.
R. v.
White [1969] 1 C.C.C. 19 (B.C.S.C.), cited with approval in Beardsley v.
Ontario Provincial Police 2001 CanLII 8621(ON CA), [2001] O.J. No. 4574 (Ont.
C.A.).
R. v. Musoni,
2009 CanLII 12118 CanLII (ON SC).
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