How Does a Peace Bond Get Issued?
An Order For a Peace Bond For the Purpose of Helping to Provide An Added Sense of Safety and Security to a Person That Has Reasonable Fear That Another Person May Act Harmfully May Be Issued By a Court In Accordance to the Process Provided Within Section 810 of the Criminal Code.
Understanding the Peace Bond Process Per Section 810 of the Criminal Code Used For Purpose of Security and Safety
In situations where a person feels fearful, and the fear is reasonably held as based upon an express threat from, or threatening behaviour by, another person, the fearful person may apply for a peace bond that requires the person of concern to abide by various conditions of good behaviour as a means of keeping the peace.
To obtain a peace bond, the person holding a reasonable fear begins an application process that falls under the purview of the criminal court system. The peace bond process asks the court to issue an Order to require the person of concern, meaning the person to whom the peace bond applies, to behave in accordance to specific conditions and otherwise maintain good behaviour. The peace bond process is found in section 810 of the Criminal Code which says:
Sureties to Keep the Peace
If injury or damage feared
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
(b) will commit an offence under section 162.1.
Duty of justice
(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.
Refusal to enter into recognizance
(3.01) The justice or summary conviction court may commit the defendant to prison for a term of not more than 12 months if the defendant fails or refuses to enter into the recognizance.
Conditions in recognizance
(3.02) The justice or summary conviction court may add any reasonable conditions to the recognizance that the justice or court considers desirable to secure the good conduct of the defendant, including conditions that require the defendant
(a) to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
(b) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or
(c) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance.
(3.1) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the defendant or of any other person, to include as a condition of the recognizance that the defendant be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for any period specified in the recognizance and, where the justice or summary conviction court decides that it is so desirable, the justice or summary conviction court shall add such a condition to the recognizance.
(3.11) Where the justice or summary conviction court adds a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall specify in the order the manner and method by which
(a) the things referred to in that subsection that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences and registration certificates held by the person shall be surrendered.
(3.12) Where the justice or summary conviction court does not add a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall include in the record a statement of the reasons for not adding the condition.
(3.2) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the informant, of the person on whose behalf the information was laid or of that person’s intimate partner or child, as the case may be, to add either or both of the following conditions to the recognizance,
(a) a condition prohibiting the defendant from being at, or within a distance specified in the recognizance from, a place specified in the recognizance where the person on whose behalf the information was laid or that person’s intimate partner or child, as the case may be, is regularly found; or
(b) a condition prohibiting the defendant from communicating, in whole or in part, directly or indirectly, with the person on whose behalf the information was laid or that person’s intimate partner or child, as the case may be.
Form — warrant of committal
(4) A warrant of committal to prison for failure or refusal to enter into the recognizance under subsection (3) may be in Form 23.
Modification of recognizance
(4.1) The justice or the summary conviction court may, on application of the informant or the defendant, vary the conditions fixed in the recognizance.
(5) The provisions of this Part apply, with such modifications as the circumstances require, to proceedings under this section.
Ontario Court of Justice
Guide to Applying For a Peace Bond
Interestingly, unlike the general purpose of the Criminal Code which is to punish criminal behaviour, the peace bond process in section 810 is intended to prevent criminal behaviour; and accordingly, the section 810 peace bond process involves the very rare imposing of restrictions and conditions upon the liberty and freedom of a person for what the person may do rather than the person did do. Whereas an Order of a peace bond may be used to impose restrictions upon a person who is yet to do an unlawful act, the court should be hestitant to make such an Order; and accordingly, the court should issue an Order only where the subjective fears of the peace bond applicant are supported with evidence and information that provides objective reasonable grounds to warrant a peace bond Order. This requirement of objective reasonable grounds was well explained in R. v. Budreo, 1996 CanLII 11800, where it was said:
I agree with the main thrust of the respondent's argument, that the wording of the section does not create an offence or specify a punishment, though persons subject to its restrictions can be charged under s. 811 if they breach the terms of the recognizance. Section 810.1 does not necessitate proof of an offence, unlike the offence-creating provisions of the Code. It requires only that the fear of a listed offence be established on reasonable grounds.
The obvious analogy is to the general peace bond provision found in s. 810. That section can be triggered by "any person who fears on reasonable grounds that another person will cause personal injury to him or to her or to his or her spouse or child or will damage his or her property". After a hearing, a judge can order that the defendant enter into a restrictive recognizance. I agree with the respondent that it has been consistently held that s. 810 does not create an offence under the Code nor oblige that one be proved, though procedural provisions applicable to offences apply mutatis mutandis to peace bonds: R. v. Allen (1985), 18 C.C.C. (3d) 155 at p. 158, 8 O.A.C. 16 (C.A.); R. v. Wakelin (1992), 1991 CanLII 7947 (SK CA), 71 C.C.C. (3d) 115 at pp. 120 and 122, 97 Sask. R. 275 (C.A.); Moses v. Enns, 1980 CanLII 3060 (MB CA),  2 W.W.R. 440 (Man. C.A.) at p. 441; R. v. Stewart, April 21, 1988, unreported, summarized R.J.P.Q. 88-262 (S.C.); Stevenson v. Saskatchewan (Minister of Justice) (1987), 1987 CanLII 4983 (SK QB), 61 Sask. R. 91 (Q.B.) at p. 95; R. v. White, ex parte Chohan,  2 C.C.C. 19 (B.C.S.C.) at p. 25; R. v. Patrick (1990), 75 C.R. (3d) 222 at pp. 227 and 229, 2 C.R.R. (2d) D-4 (B.C. Co. Ct.).
4. Standard of Proof
While no offence is created under s. 810.1, a judge must still determine if the judge is "satisfied by the evidence adduced that the informant has reasonable grounds for the fear" that one of the listed offences will be committed.
Most of the jurisprudence on the similar wording in s. 810 supports the view that proof on a balance of probabilities is the appropriate standard. The only case examining the question in detail is Miller v. Miller (1991), 87 Nfld. & P.E.I.R. 250, 271 A.P.R. 250 (Nfld. Prov. Ct.). Judge Handrigan reasoned as follows at pp. 254-55:
1. Proceedings under section 810 are at best quasi-criminal in nature and even where there is a finding that the accused is required to enter into a recognizance this is not a conviction and no penalty flows directly therefrom.
2. The wording of section 810 of the Criminal Code is to the effect that an application can be taken out by any person "who fears", and that the court must be satisfied on the evidence adduced that the applicant has "reasonable grounds for his fears". The use of the words "fears", "satisfied", and "reasonable grounds" do not suggest the same severity or significant degree of proof attendant upon the prosecution in bona fide criminal proceedings.
3. While it may be argued that a respondent entering into a recognizance has his liberty restricted, or that a very real consequence will result to those directed to but who refuse to enter into a recognizance, essentially the existence of a recognizance is no penalty or burden for a respondent to bear, simply because he is only binding himself to do what all law-abiding citizens are required to do. It is true that he attracts the risks of further penalty for breaching the peace or failing to be of good behaviour but this is not such an unreasonable burden or expectation for him, such that his exposure to it should be supportable only by proof beyond a reasonable doubt.
4. The recognizance contemplated by section 810 of the Criminal Code may be in form 32 of the Criminal Code and this is the type of form suggested as being the form of a recognizance to be entered into by a person released by the court under the judicial interim release provisions of the Criminal Code. It is a well established fact that the burden on the applicant under the judicial interim release provisions is not beyond a reasonable doubt but on a balance of probabilities. Hence, it would follow a fortiori that the burden contemplated by section 810 of the Criminal Code is on the same standard, proof on a balance of probabilities.
This reasoning convinces me that the correct standard is on a balance of probabilities. This is also in keeping with the authorities cited by Kerwin J. in MacKenzie v. Martin, 1954 CanLII 10 (SCC),  S.C.R. 361 at p. 368, 108 C.C.C. 305, stating that the power of preventive justice can be exercised on "probable ground". See also R. v. Delaney,  O.J. No. 1441 (Gen. Div.) at para. 12 and P.M. Neumann, "Peace Bonds: Preventive Justice? or Preventing Justice?" (1994), 3 Dalhousie J. of Leg. Studies 171 at pp. 189-93. I would accordingly decline to follow R. v. Kirkham,  O.J. No. 1618 (Gen. Div.), a case that had held that proof beyond a reasonable doubt was required.
This still leaves unsettled the problematic term "fear" found in s. 810.1(1) ("Any person who fears on reasonable grounds") and in s. 810.1(2) ("reasonable grounds for the fear"). The applicant contends that this language means the proceedings under s. 810.1 can turn on mere subjective emotions. It suffices, according to the applicant, that a complainant reasonably show that a subjective fear exists. See on this point Dr. A.N. Doob (expert criminologist at the University of Toronto), affidavit at para. 6; M. Petrunik, Models of Dangerousness: A Cross Jurisdictional Review of Dangerousness Legislation and Practice (Ottawa: Solicitor General, 1994) at p. 9; R. Rogers, the Chief Executive Officer of the Institute for the Prevention of Child Abuse in Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-126 (June 1, 1993), at p. 4:40.
Here again cases based on the near identical wording found in s. 810(1) ("fears on reasonable grounds") and in s. 810(3) ("reasonable grounds for his or her fears") are of assistance. Interpreting these phrases, Baynton J. in R. v. Banks, 1995 CanLII 5974 (SK QB),  4 W.W.R. 698 at pp. 702-03, 129 Sask. R. 147 (Q.B.), wrote cogently:
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.
The first condition is a subjective condition while the second is an objective one. The Code uses the term "reasonable grounds" while the information uses the term "reasonable and probable grounds". In any event, the justice who conducts the trial must be satisfied (presumably at least on a balance of probabilities if not beyond a reasonable doubt), that the subjective and objective elements have been proven in evidence. Unless both elements have been proven the justice has no jurisdiction to make the order.
The reasonable grounds requirement is to protect individuals from unwarranted restrictions on their liberty through an order made solely on the subjective (and possibly unreasonable) perceptions of an informant. Only in those instances in which the subjective perceptions of an informant are supported by objective reasonable grounds can such an intervention order be made.
See also D.(J.M.) v. P.(J.G.) (1991), 107 N.S.R. (2d) 44 at p. 47, 290 A.P.R. 44 (Fam. Ct.). The test is thus a two-track one, establishing subjectively the informant's belief and then objectively whether this belief is founded. I note that the Federal Court of Appeal endorsed a similar two-track test using a balance of probability threshold when it considered the phrase "by reason of a well-founded fear of persecution". See Adjei v. Canada (Minister of Employment & Immigration), 1989 CanLII 5184 (FCA),  2 F.C. 680 at p. 682, 57 D.L.R. (4th) 153 (C.A.).
It is clear then that the use of the word "fear" in a legislative context does not put the judicial process at the mercy of unsubstantiated paranoia but requires an allegation to be objectively provable. Judges should take care before exercising their preventive jurisdiction. Both ss. 810 and 810.1 speak of a reasonably grounded fear that the defendant "will" commit an offence. To my mind, as a matter of legislative construction, this takes the appropriate threshold a notch above a simple demonstration that the defendant is more likely than not to commit an offence. A reasonably grounded fear of a serious and imminent danger must be proved on a balance of probabilities. The court under s. 810.1 must therefore scrutinize carefully the evidence put before it: Banks, supra, at p. 705.
This cautious approach exists also respecting the common law peace bond power: R. v. Justices of Londonderry (1891), 28 L.R. Ir. (C.L.) 440 (Q.B.) at p. 462, per Holmes J.; at p. 446 per O'Brien C.J. As Sopinka J. noted in R. v. Parks, 1992 CanLII 78 (SCC),  2 S.C.R. 871 at p. 911, 75 C.C.C. (3d) 287, with La Forest, L'Heureux-Dubé and Gonthier JJ. concurring on this point at p. 909:
. . . this common law power cannot be exercised on the basis of mere speculation, but requires a proven factual foundation which raises a probable ground to suspect of future misbehaviour.
The majority of the court in Parks, supra (per Sopinka J. at p. 911, per La Forest J. at pp. 909-10, per McLachlin J. at p. 913) specifically disagreed with a finding by Lamer C.J.C. at p. 894 that a peace bond could be imposed even in the face of uncontradicted evidence that the individual involved would not recommence his violent behaviour.
It is true that the section at hand does not specify what type of evidence should be led to persuade the judge of a reasonable apprehension of harm. However, the exercise of preventive powers is generally based on the three factors outlined by the Supreme Court of Canada in R. v. Lyons, 1987 CanLII 25 (SCC),  2 S.C.R. 309 at p. 333, 32 C.R.R. 41: "criminal qualities inherent or latent in the mental constitution, a settled practice in crime, and a public danger".
As noted by Judge Ryan in Patrick, supra, at pp. 227-29, evidence of propensity is admissible on a peace bond hearing since the future behaviour of the defendant is at issue. As full an evidentiary record as possible must be established on this point. He stated at p. 228:
Section 810(3) should be interpreted as requiring an objective rather than a subjective assessment of the informant's grounds for fearing the defendant. The fears must be placed in context. If the person threatening the informant has on other occasions assaulted others, then this is a matter that the trial judge ought to consider in determining whether the informant's fears are well placed. 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.
The Criminal Code contains a process for obtaining an Order for a peace bond. Where an Order for a peace bond is issued by the court, the person under the bond must maintain good behaviour and abide by any additional conditions imposed by the Order.