Section 810 Peace Bonds
The Process
The 810
recognizance process begins with the swearing of the information, after which a
summons for the Defendant/s is issued, and then the hearing itself (commonly
referred to as a show cause hearing,
as the Defendant is given an opportunity to show cause why the recognizance
should not issue).
Principles applicable to s. 810
applications
English
statute and common law conferred upon a justice of the peace a discretionary
power to subject individuals to an order binding over an individual to keep the
peace and to be of good conduct where the justice apprehended that these
individuals would likely breach the peace. In this one instance the
English common law allowed a restraint on liberty of individuals where no
offence had been proven. This power was preventive rather than penal in
nature; its purpose was to maintain order and preserve the peace.
Generally criminal law is penal in nature based upon proof of the offender
having committed an offence. Section 810
of the Criminal Code and its predecessor sections carry on the tradition of
preventive justice.
R. v. Soungie, 2003 ABPC 121 (CanLII), at para
5.
Section
810 is preventive in nature protecting the applicant in appropriate
circumstances from future harm to the applicant, the applicant's spouse, the
applicant's common law partner, the applicant's children, or future damage to
the applicant's property.
In making
an order under s. 810 the Judge is asked to restrain an individual
because of likelihood of future harm.
R. v. Soungie, at para 22.
Laying the Information
To lay an
information, the applicant must swear that he or she has a fear that the
defendant will cause personal injury to the applicant, the applicant’s spouse,
the applicant’s common law partner, the applicant’s child, or damage the
applicant’s property: s. 810(1).
In s.
810(3) the Judge must be satisfied there are reasonable grounds for the
fear.
The Show Cause Hearing
Burden of persuasion and standard
of proof
The onus
of persuasion is upon the applicant. The applicant must satisfy the Judge on
the balance of probabilities of the grounds for the issuance of a recognizance.
The
Applicant’s Subjective Fear and the Objectively Reasonable Grounds Supporting
that Fear
Before an
order can be made against the defendant, two elements must be established in
evidence
(1)
The informant actually fears that the defendant will cause personal injury to
him, his spouse, his child, or will damage his property, and
(2)
Reasonable grounds exist for the informant’s fears.
R.
v. Banks, 1995
CanLII 5974 (SK QB).
Unless
both elements have been proven the justice has no jurisdiction to make the
order.
Subjective Fear
The first
requirement is that the applicant have such a honest and actual fear. The
absence of proof that the applicant has such will mean there is no basis upon
which a recognizance can be issued. Obviously, it is preferable that the
applicant articulate the fear but the failure to articulate does not
necessarily mean the fear is not present. The surrounding circumstances
can give rise to an inference that the fear exists:
J.H.
v. W.B. (2001), 2001 YKTC 502
(CanLII), 44 C.R. (5th) 39 (Yuk.
Terr. Ct.).
Personal
harm in this context includes fear of psychological harm.
R.
v. McCraw (1991), 1991 CanLII 29
(SCC) 7
C.R. (4th) 314 (S.C.C.):
The term "bodily harm" referred to in s. 267
of the Criminal Code is defined as "any hurt or injury". Those
words are clearly broad enough to include psychological harm.
Reasonable Grounds to Fear
The
phrase "fears on reasonable grounds" in s. 810 equates to a belief,
objectively established, that the individual will commit an offence.
The test
requires the Judge to apply the perception of the reasonable person in a
similar situation. The Judge is compelled to use logic, common sense, and
common experience in making that determination.
R. v. Soungie, at para 19.
The
objective grounds must be triggered by some action or omission by the
defendant or that can be attributed to the defendant. Those grounds
are often particularized in the information.
R. v. Soungie, at para 21.
Because s.
810 by its very nature requires an exploration of the context of the fear
held by the applicant evidence of past conduct even past misconduct is
admissible.
R. v. Soungie, at para 28.
To limit
the court to an investigation of matters known only to the informant could in
many cases defeat the purpose of the section. The actions of the
defendant in the past, whether he is a peaceable or violent man, may well
assist the Court in determining the reasonableness of the informant’s fears and
the likelihood that the defendant will carry through his threats.
R.
v. Patrick (1990), 75 C.R. (3d) 222 (B.C. Co. Ct.) at p. 228.
The
Judge is not asked to predict future behaviour; rather, the Judge must be
satisfied from the evidence the likelihood of future harm or damage. The
quality and strength of the evidence must be sufficient to satisfy this
likelihood.
Deprivation of liberty
The
jurisprudence also supports the view that a defendant bound by an 810
recognizance is deprived of her liberty within the meaning of section 7 of the
Charter.
See
for instance, R. v. Budreo (2000), 2000 CanLII 5628 (ON CA),142 C.C.C. (3d) 225 (Ont. C.A.).
The
Recognizance
Any order
made is not a lifelong injunction; it can last no longer than a year and may be
renewed only after an entirely new hearing.
A person
subjected to a s. 810 order may appeal the order and may, at any time, seek to
vary the conditions.
Section 810
does not create an offence in law but a mechanism whereby the defendant is
placed on a recognizance to keep the peace and be of good behavior.
Re
Dhesi and the Queen
(1983), 1983
CanLII 338 (BC SC), 9 C.C.C. (3d) 149 (B.C. Sup. Ct.).
Hearsay evidence
Although
the "evidence" the judge relies on might include hearsay, a
recognizance could only be ordered on evidence that is credible and
trustworthy.
Budreo, supra, at paragraph 53.
Summary Conviction Procedure
Expressly Incorporated
Section
810(5) incorporates by reference all of the provisions relating to summary
conviction offences generally. Section 795 makes the provisions of Part XVI
apply to summary conviction offences "with such modifications as the
circumstances require".
Thus,
courts have found that justice of the peace can issue an arrest warrant to
compel the defendant’s appearance to answer to a s. 810 information and where
an individual escapes he could be found guilty of escaping lawful custody.
Also, the
bail sections of the Criminal Code are applicable to the defendant’s release.
R. v. Wakelin (1992), 1991 CanLII
7947 (SK CA), 71 C.C.C. (3d) 115 (Sask. C.A.).
Criminal Code
If injury or damage feared
810 (a) 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 him or her or to his
or her spouse or common-law partner or child or will damage his or her
property; or
(b)will commit an offence under section 162.1.
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
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