Peace Bond and a Common Law Peace Bond

Peace Bond and a Common Law Peace Bond

Section 810 Peace Bond and a Common Law Peace Bond

A peace bond, based on section 810 of the Criminal Code, is a protection order from a Court, given on the basis of sworn information demonstrating the likelihood that the defendant will commit a criminal offense bringing harm to an individual or their property. A s. 810 bond can be valid for up to a year.

A Common Law Peace Bond, on the other hand, is generally not based on sworn information, and has a much broader scope of “a reasonably apprehended breach of peace.” It has no maximum period of enforcement.

The test for a s. 810 Peace Bond is “reasonable fear of danger or damage to property,” but the test is broader for a Common Law Peace Bond.

A summary of the difference

A summary of difference between a s. 810 Peace Bond and a Common Law Peace Bond is found in  Musoni, [2009] O.J. No. 1161 (Durno J):

22     [21] 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.

24     [23] What is required are facts to the judge’s satisfaction which justify his or her apprehension that there may be a breach of the peace. This common law prerogative cannot be exercised on speculation or conjecture that a person had done something which will justify apprehension that there may in the future be a breach of the peace. It therefore follows that there must be proof, by way of evidence, determined as fact in order to exercise this jurisdiction. Shaben, at para. 18.

A common law peace bond can be imposed as “preventive justice” to uphold the public peace and good behaviour.

In  MacKenzie v. Martin, [1954] S.C.R. 361  a peace bond was ordered for a mere annoyance.

The test to exercise discretion to impose or decline a Common Law Peace Bond

A fairly good analysis of  the test to exercise discretion to impose or decline a Common Law Peace Bond can be found in: Barber, [2008] O.J. No. 5732.

See Siemens, [2012] A.J. No. 471:

16     What is the test for ordering a person to enter into a recognizance to keep the peace at common law? Grounds for such an order are likely broader than those governing statutory peace bonds. It is not necessary, for instance, to find the commission of an offence: criminal or regulatory. Nor is it necessary to find to find a threat or conspiracy to do so. On the other hand, courts may no longer be inclined to order a common law peace for the “annoyance, loss of sleep, inconvenience and worry” which were alleged by the Toronto police to have constituted the ‘breach of the public peace’ in Mackenzie. The constitutionality of the common law peace bond may rely upon the legal threshold for its issuance being defined with sufficient certainty. See: R. v. Barber, 2008 ONCJ 759.
17     In Mackenzie, Kerwin J. found that a peace bond delivers preventive justice by, ” … obliging those persons, whom there is probable grounds to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen; by finding pledges or securities for, keeping the peace, or for their good behaviour.” This passage was quoted by Sopinka J. in Parks with apparent approval. In Musoni, Durno J. referred to the common law peace bond’s ‘wider’ application, describing the grounds for such an order as being “a reasonably apprehended breach of the peace” (at para.22). He went on to rule state (at para.24): “What is required are facts to the judge’s satisfaction which justify his or her apprehension that there may be a breach of the peace.” The Ontario Court of Appeal (in this case, Moldaver, Goudge and Sharpe JJ.A.) reviewed the judgment of Durno J. and concluded that, ” … we see no error in Justice Durno’s analysis or conclusion.”
18     The term ‘breach of the peace’ has itself been defined by the court in Frey v. Fedoruk, [1950] S.C.R. 517 as follows:

– It may be difficult to define exhaustively what is a breach of the peace but, for present purposes, the statement in Clerk and Lindsell on Torts, (10th edition), page 298 may be accepted:

– A breach of the peace takes place when either an actual assault is committed on an individual or public alarm and excitement is caused. Mere annoyance or insult to an individual stopping short of actual personal violence is not a breach of the peace. Thus a householder – – apart from special police legislation – – cannot give a man into custody for violently and persistently ringing his door-bell.

The ‘peeping tom’ in this particular case was found not to have breached the peace.
19     In Brown v. Durham (Regional Municipality) Police Force, 131 C.C.C. (3d) 1 (Ont.C.A.), the court considered the term ‘breach of the peace’ and commented (at para.73):

– A breach of the peace does not include any and all conduct which right thinking members of the community would regard as offensive, disturbing, or even vaguely threatening. A breach of the peace contemplates an act or actions which result in actual or threatened harm to someone. Actions which amount to a breach of the peace may or may not be unlawful standing alone. Thus, in Percy v. D.P.P., [1995] 3 All. E.R. 124 at 131 (Q.B.), Collins J. observed:

The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.
20     The authors of The 2012 Annotated Tremeear’s Criminal Code, Thomson Reuters Canada Ltd., Toronto address the term ‘breach of the peace’ in the following terms (at p.105):

– ‘Breach of the peace’ is not defined in the section [s.30 C.C.], or elsewhere. It occurs whenever harm is actually or likely to be done to a person, or in his/her presence to his/her property, or a person is in fear of being so harmed through and assault, affray, riot unlawful assembly or other disturbance.
The Supreme Court has considered that a person committing a disturbance in a public place can be said to have breached the peace. See: R. v. Biron, [1976] 2 S.C.R. 56. As would the participants in a consensual fight in public. See: R. v. Bergner (1987), 78 A.R. 331 (C.A.).

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