R. v. Wells, 2012 ABQB 77

Court of Queen ’ s Bench of Alberta Citation: R. v. Wells, 2012 ABQB 77 Date: 20120201 Docket: 100756352S1, 100756352P1 Registry: St. Paul Between: Her Majesty the Queen Respondent - and - Dale Richard Wells Appellant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ 1. Introduction.............................................................................................................. Page: 2 2.

Facts........................................................................................................................ Page: 2 3. Standard of Review............................................................................................... Page: 4 4. Preliminary Issue - Jurisdiction to Issue Common Law Peace Bonds............. Page: 6 5. Breach of Natural Justice...................................................................................... Page: 7 A. Position of the Appellant and the Respondent........................................ Page: 7

B. Analysis....................................................................................................... Page: 7 i. Requirement for Notice and Submissions.................................. Page: 7 ii. Other Alleged Breaches of Natural Justice and the Factual Basis for the Peace Bond ....................................................................................................... Page: 12 6. Disposition........................................................................................................... Page: 14 1.

Introduction [ 1 ] The Appellant, Dale Richard Wells, appeals the order of the Honourable Judge V.H. Myers of the Provincial Court of Alberta, made on March 29, 2011, at Lloydminster, Alberta, wherein the learned Provincial Court Judge required the Appellant to enter into a common law peace bond. The Trial Judge’s order came at the conclusion of a trial in which he found the Appellant not guilty of the offences of assault ( Criminal Code , R.S.C. 1985, c.

C-46, s. 266) and uttering a threat ( Criminal Code , s. 264.1(1)(a)). [ 2 ] Provincial Courts also have the authority to make orders under Criminal Code , ss. 810- 810.2 that can limit an individual’s freedom in anticipation of potential offences to property and person.

These orders to “keep the peace” are distinct from the “common law” authority used by the Learned Trial Judge and advocated by the Respondent in this instance. [ 3 ] In his Notice of Appeal, the Appellant alleges four grounds of appeal: 1. the Learned Trial Judge lacked a common law jurisdiction to require the Appellant to enter into a peace bond or other form of recognizance; 2. the Learned Trial Judge erred by imposing a common law peace bond when such an order was not requested by the Crown; 3. the Learned Trial Judge’s reasons for imposing the common law peace bond were insufficient to permit meaningful appellate review; and 4. the facts as found by the Learned Trial Judge did not justify imposing a common law peace bond. [ 4 ] This appeal was heard in St.

Paul, Alberta on September 26, 2011. At the conclusion of oral argument I allowed the appeal and quashed the peace bond. I indicated at that time that written reasons would follow in due course. 2. Facts [ 5 ] The Appellant was charged with the offence of assault and uttering a threat. The counts in the information read as follows: Count #1 On or between the 1 st day of April, A.D., 2010 and the 30 th day of April, A.D. 2010, at or near the City of Lloydminster in the Province of Alberta did commit an assault on Larisa Wells contrary to s. 266 of the Criminal Code .

Count #2 On or between the 1st day of April, A.D., 2010 and the 30th day of April, A.D. 2010, at or near the City of Lloydminster in the Provinceof Alberta did knowingly utter a threat to Larisa Wells to cause death to Larisa Wells, contrary to s. 264.1(1)(

a) of the Criminal Code. [6] The trial proceeded before the Provincial Court of Alberta on March 29, 2011. The Appellant was represented by the same counsel at trial and during this Queen’s Bench proceeding. The Crown called two witnesses,Larisa Wells and Maria Andreyevna Wells. The Defence called evidence at trial, namely the Accused, Dale Wells, and Dena Skinner. Atthe conclusion of the evidence, counsel for Mr. Wells made submissions to the Court on the issue of guilt or innocence. The Crown,however, made no submissions and instead invited the Court to pose any specific questions that it might have. Immediately thereafter theCourt stated as follows (at p. 70, l. 10-29): The Court: Under

section 810, the Broomes cases out of the Ontario high court - - and it is almost 30 years old ... Mr. Pringle: Yeah. The Court: ... suggests that a defendant on a charge of assault need not be specifically warned that the judge intends todismiss a charge but exercise a common law jurisdiction to bind the defendant over to keep the peace. Mr. Pringle: I think ... The Court: This Court does not have to give notice, but I have always felt that it is appropriate to give notice that that is acontemplation that I am ... do you have any comment on it? Mr. Pringle: No, I think you can do that, Sir.

The Court: Any comment on that? Mr. MacDonald: No, Sir. [7] Following this exchange, the Learned Trial Judge gave his reasons for judgment. Applying the test of the Supreme Court inR. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521, 119 D.L.R. (4th) 464 he found that he was left with a reasonable doubt as towhether or not the Crown had established the guilt of the Accused. The Learned Trial Judge then stated: That does not prevent me, sir, from placing you and exercising my common law jurisdiction to bind you over to keep the peace; and I doso, sir, for a period of one year.

It will be a thousand dollars; it will be without deposit. You will keep the peace and be of goodbehaviour. Sir, you will abstain from communicating directly or indirectly with Larisa Wells and Maria Wells or going to their place ofresidence except in accordance with the following conditions, other than through a member of the Law Society of Alberta. Madam Clerk, it will be for a period of 12 months. With respect to the charges that are before this court, I find you not guilty on both. [8] Notably the Learned Trial Judge immediately proceeded from his conclusion on guilt to order and set the scope of the

common law peace bond. He did not invite evidence or commentary on whether a common law peace bond was warranted or inquire onhow any peace bond ought to be structured. 3. Standard of Review [9] The Appellant contends that correctness is the standard of review on his ground of appeal relating to procedural fairness andan alleged denial of natural justice. On the ground of appeal relating to the Learned Trial Judge’s decision to impose a common lawpeace bond, the Appellant suggests that this appeal is analogous to an unreasonable verdict appeal.

Applying the decisions in R. v.Biniaris, 2000 SCC 15, 184 D.L.R. (4th) 193 and Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, he contends that theappropriate standard of review is reasonableness.

Specifically, the Appellant says (at para. 9 of his factum) that: ... an appellate court may overturn a finding of a common law peace bond where a properly instructed trial judge, fully informed of theproper legal test for a common law peace bond and cognizant of all the relevant facts, could not have reasonably concluded that acommon law peace bond was justified in the circumstances. [10] The Respondent takes no position on the standard of review. [11] The proper characterization of a superior trial court’s review of a common law peace bond issued by a provincial court has bethe subject of some disagreement.

In R. v. Lynch, 2001 BCSC 1426, 51 W.C.B. (2d) 356 the Court accepted a joint submission that areview of a common law peace bond was a Criminal Code, s. 830(1)(a)(

i) appeal. That appears an unusual approach, as more commonlythis ‘appeal’ is identified as a judicial review: R. v. Fehr, at para. 1 (B.C.S.C.), R. v. Taylor, 2001 BCPC 183 at para.58. [12] I think this proceeding is a judicial review. The standard on which the Alberta Court of Queen’s Bench reviews a provincialcourt judge was recently restated by Marceau J. in R. v. Thorburn, 2010 ABQB 390 at paras. 11-13, 500 A.R. 1, see also Stanny v.Alberta, 2009 ABQB 161 at paras. 15-17, 484 A.R. 163.

An error of jurisdiction or natural justice is reviewed on a correctness standard.However, deference is due on questions of fact: 12 A court that reviews the 'exercise of discretion judicially' should defer on questions of fact. In Canadian Broadcasting Co. v. NewBrunswick (Attorney General) (Re R. v. Carson), (SCC), [1996] 3 S.C.R. 480 at para. 78, 139 D.L.R. (4th) 385, LaForest J. stated: 78.

Where the record discloses facts that may support the trial judge's exercise of discretion, it should not lightly be interfered with.The trial judge is in a better position to draw conclusions from the facts he or she sees and hears, and upon which he or she may exercisethe judicial discretion.

This, however, presupposes that the trial judge has a sufficient evidentiary or factual basis to support the exerciseof discretion and that the evidence is not misconstrued or overlooked. [Emphasis in original.] [13] I also note the recent instruction by the majority of Supreme Court of Canada in Alberta (Information and PrivacyCommissioner) v.

Alberta Teachers’ Association, 2011 SCC 61 [“Alberta Privacy Commissioner”] at para. 42 that a “true question ofjurisdiction” is unusual where an adjudicative body exercises rights under its home legislation. [14] Similarly, the requirement for, adequacy and correctness of reasons was commented upon by Abella J. in Newfoundland andLabrador Nurses' Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62, where she at para. 22 indicates the necessityfor reasons is a question reviewed on a standard of correctness, but that a substantive evaluation of the content and rationale of a decisionis reviewed with deference; see also Calgary (City) v. Alberta (Municipal Government Board), 2012 ABCA 13 at paras. 15-16. [15] Turning to the issues identified by the Appellant, I conclude: 1. the issue of jurisdiction to order a common law peace bond would be subject to review as a “true question of jurisdiction”, as per

Alberta Privacy Commissioner; 2. the Learned Trial Judge’s choice to order a common law peace bond: a. where not suggested by the Crown, or b. without argument and evidence, are questions of natural justice and reviewed on a correctness standard; 3. the necessity for reasons is a question of natural justice and reviewed on a correctness standard; and 4. the reasoning and factual basis for a common law peace bond is a question of mixed fact and law and due deference. 4.

Preliminary Issue - Jurisdiction to Issue Common Law Peace Bonds [16] The Appellant argues there is substantial doubt as to whether or not the common law authority of a provincial court judge torequire an individual to enter into a peace bond survived the 1955 Criminal Code amendments that abolished all common law offences,the Supreme Court’s decision in R. v. Doyle, (SCC), [1977] 1 S.C.R. 597, 68 D.L.R. (3d) 270 or, indeed, the CanadianCharter of Rights and Freedoms,

Part 1, Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the“Charter”]. [17] I think the exercise of a common law authority by a court is analogous to a tribunal’s

interpretation and operation of its“home statute”. Thus, this is an attempt to argue a “true question of jurisdiction”, that involves an aspect of a provincial court’s “homestatute”. The Appellant must therefore satisfy the Alberta Privacy Commissioner requirements. If so, then: 39. ... it should be presumed that the appropriate standard of review is reasonableness.

As long as the true question of jurisdictioncategory remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’sinterpretation of its home statute on the deferential standard of reasonableness. [18] I note that there has been recent jurisprudence that supports a conclusion that provincial courts retain a common law authorityto restrict future conduct outside that granted by Criminal Code, s. 810-810.2: see R. v. Mousseau, 2011 ONCJ 222 at paras. 21-35, 273C.C.C. (3d) 109; R. v. Taylor at para. 58; R. v. Fehr at paras. 15-22; J.H. v.

W.B., 2001 YKTC 502 at paras. 9, 46, 44 C.R. (5th) 39. Theanalysis of the common law peace bond scheme by Fairgrieve J. in R. v. Mousseau is particularly useful in explaining the apparentlyparallel bases to restrict future misconduct available to provincial court judges, what La Forest J. in R. v.

Parks, (SCC),[1992] 2 S.C.R. 871 at 909, 95 D.L.R. (4th) 27 called the “... two mechanisms for the enforcement of a traditional order to keep thepeace.” Without deciding the point, I think that there is some merit to Fairgrieve J’s conclusion that a peace bond is, at its core, “an orderfor the payment of money” (paras. 31-35), and therefore not affected by Criminal Code amendments or remedies. [19] I have serious reservations as to whether or not the common law peace bond would survive Charter scrutiny if directlychallenged; see Parks, supra at p. 912 per Sopinka J.

Nevertheless, I conclude that the Appellant has not only not met the standard ofdisplacing the proposition that this is “a true question of jurisdiction”, but also that the impugned common law peace bond authority is anaccepted though unusual facet of Canadian jurisprudence. The Learned Trial Judge therefore was reasonable when he concluded he hadauthority to potentially order a common law peace bond against the Appellant. 5. Breach of Natural Justice

5. Breach of Natural Justice A. Position of the Appellant and the Respondent [20] Given the jurisdiction for common law peace bonds continues to rest in provincial court judges, the Appellant suggests thatsuch a jurisdiction must be exercised in accordance with the principles of natural justice. In this instance, the peace bond was imposedupon the Appellant without prior notice and without affording him either an opportunity to make submissions or call evidence. As such,the Appellant says that this amounted to a breach of natural justice and resulted in a loss of jurisdiction to impose a common law peacebond.

The Appellant also contends that the Learned Trial Judge erred in imposing a common law peace bond on his own motion. [21] The Respondent, relying on R. v. Broomes (1984), (ON SC), 12 C.C.C. (3d) 220 (Ont. H.C.J.), R. v.Marshall, [2003] O.J. No. 5501 (QL), 61 W.C.B. (2d) 30 (Ont. Ct. J.), and R. v. Musoni, (ON SC), [2009] O.J. No.1161 (QL), 243 C.C.C. (3d) 17 (Ont. Sup. Ct. J.), affirmed 2009 ONCA 829, 248 C.C.C. (3d) 487, leave denied [2009] S.C.C.A.

No.534, says that the Learned Trial Judge was under no obligation to specifically inform the Appellant that the court intended to bind himinto a common law peace bond. The Respondent further states that the fact that the Appellant was before the court as an accused, dulyrepresented by counsel and having elected to testify in his own defence, rendered him subject to any kind of penalty arising from theproceedings. B. Analysis i.

Requirement for Notice and Submissions [22] This application can be decided on the failure of the Learned Trial Judge to order the common law peace bond withoutseeking the Appellant’s participation in any aspect of the process. I accept the Appellant’s argument on this point. [23] It is clear, in my view, that the Learned Trial Judge failed to give the Appellant prior notice of the court’s intention to requirehim to enter into a common law peace bond, and also failed to afford him an opportunity to either call evidence or make submissions inrelation to that potential restriction of his freedom.

These procedural short-comings amounted to a denial of natural justice giving rise to aloss of jurisdiction. [24] My conclusion is an extension of previous analyses concerning peace bonds and natural justice. In R. v. Shaben, (ON SC), [1972] 3 O.R. 613, 8 C.C.C. (2d) 422, Lerner J. of the High Court of Justice outlined the components of the rules ofnatural justice that apply relative to the imposition of a common law peace bond. At para. 24, he stated: ... The basic principles of universal application are that a person so affected (

a) be told the particulars of the charge against him; (

b) that he is entitled to a hearing; (

c) that he be given the right to call evidence; and(

d) that he be permitted to make submissions on his own behalf. To do anything less is a denial of natural justice. ... Lerner J. then quashed common law peace bonds directed to three witnesses to a criminal proceeding. [25] Justice Lee in R. v.

Gerrand, 2005 ABQB 353, 382 A.R. 245 concluded the requirements of natural justice were not metwhen a provincial court judge ordered a peace bond that affected both the two accused persons and the two complainants: paras. 12-19.Justice Lee concluded, in obiter, that the peace bond against the two accused was valid as they had appeared in court to respond to aCriminal Code, s. 810 application: paras. 18. 28-29. However, the ‘risk’ to the complainants was not satisfied by their lack of anyopportunity to respond:

28 I agree with the distinction between the status of a witness and that of a Defendant/Respondent as described in Re Broomes.

Giventhat Ellen Boon and Gary Goffman had no idea that a peace bond of any type would be imposed upon them, and given that neither hadthe opportunity of marshalling evidence or addressing any allegations with respect to any danger or concern emanating from themselves,nor were they given an opportunity to make submissions in respect of the imposition of a peace bond against themselves, I conclude thatthe common-law peace bonds imposed on them be quashed. [Emphasis added.] [26] Grotsky J. in R. v. Charles (1990), (SK KB), 88 Sask. R. 269, 61 C.C.C. (3d) 239 (Sask.

Q.B.) quashed acommon law peace bond in a related scenario. Here, during sentencing a provincial court judge met with an offender and complainant inhis office, and ordered a peace bond against the complainant. The reviewing court concluded this was a breach of natural justice: Here, the applicant was not on May 7, 1990 an accused person. He was not charged with any offence.

He, without being advised of thereasons therefor; without being advised of his right to retain and instruct counsel and without being afforded the right so to do; withoutbeing given an opportunity to make any, let alone full, answer and defence thereto, was "in the exercise of the Provincial Court Judge'scommon law jurisdiction" directed to enter into a recognizance on conditions as noted and was certainly "detained" during these"proceedings" and thereafter as well while the recognizance was prepared and executed by him ... [Emphasis added.] [27] Several of the authorities cited by the Crown are relevant. R. v.

Marshall indicates a common-law peace bond is valid wheredirected to a defendant who was acquitted at trial. The subject of the peace bond objected to its effect and had her counsel makesubmissions on that point: para. 30. The brief decision of R. v. Broomes applied the UK case of R. v. Woking Justices, ex parteGossage, [1973] 2 All E.R. 621 (Eng. C.A.) and concluded a trial judge may order a common law peace bond without specificsubmissions on that sanction when the bond relates to an acquittal on a criminal charge.

Lord Widgery C.J. in that case concludes “... itwould be courteous and perhaps wise ...” to seek submissions but that an omission of that kind would not be a breach of natural justice. [28] I do not see R. v. Musoni as particularly relevant as in that case the common law peace bond was accepted by a personrepresented by counsel. [29] Another useful case is R. v. Lynch, 2001 BCSC 1426, 51 W.C.B. (2d) 356. The provincial court trial judge rejected aCriminal Code, s. 810 application, but instead ordered a common law peace bond without an opportunity to make submissions.

Catliff J.quashed the peace bond and concluded at paras. 11-12 that in Canada the law has evolved from that in R. v. Broomes and R. v. WokingJustices, ex parte Gossage: 11 The reliance of Steele J. [in R. v. Broomes] on this reasoning in Woking Justices does not persuade me I should not follow Chohan.It was said in Woking Justices that although warning a defendant of a contemplated peace bond was perhaps a "wise" thing to do, it wasnot a breach of natural justice not to do so. This conclusion should, in my view, be considered in the light of our Charter and the decisionof the Supreme Court of Canada in R. v.

Parks (1992), (SCC), 75 C.C.C. (3d) 287. In that case one of the issues waswhether the appellant, who had been acquitted of murder, should be bound over under a common law peace bond. The majority of thecourt considered that to do so was inappropriate and impractical. Concerns were expressed about affecting the appellant's liberty after hehad been acquitted. Sopinka J. said at 313; Moreover, the extent and continued validity of this common law power has yet to be considered in light of the Canadian Charter ofRights and Freedoms.

Restrictions on an individual's liberty can only be effected in accordance with principles of fundamental justice ormust be justified under sec. 1. 12 These words suggest the Supreme Court of Canada might well regard that warning a defendant that his or her liberty was injeopardy, when such might not reasonably be expected, was more than a matter of courtesy or wisdom, but rather a matter of naturaljustice as did Aikins J. in Chohan.

It is to be noted that Lamer C.J., who wished the matter referred back to the trial judge to consider theimposition of a common law bond, said that should be done only after hearing from the parties (p. 301). His view was that conditionsimposed under a bond would restrict liberty and should therefore not be imposed without regard to sec. 7 of the Charter. [Emphasisadded.] [30] I prefer the reasoning and result in R. v. Lynch. As I will explore further below I see no reason to deny an accused person thesame kind of procedural justice that is made available to others potentially subject to a common law peace bond.

[31] I also accept the Appellant’s suggestion that in this instance reference to administrative law cases dealing with the content andscope of the principles of natural justice is helpful. In a purely criminal context, a person charged with an offence would have the benefitof Charter ss. 11(

a) and 11(

d) and thus have a right to be informed of the specific offence and “... the right to be presumed innocent untilproven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. However, the invocation of acommon law peace bond did not result in the Appellant being “charged” with anything. As such, one has to look beyond s. 11 andconsider the content of s. 7 of the Charter, specifically the procedural fairness components of the principles of fundamental justice, asdiscussed by the Supreme Court in such cases as Baker v.

Canada (Minister of Citizenship and Immigration), (SCC),[1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [“Baker”]; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, 208D.L.R. (4th) 1; and Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350. [32] I am of the view that a proper application of the so-called Baker factors leads to the conclusion that the circumstances of thecase at bar called for a very high degree of procedural fairness.

I think it is self-evidence that a provincial court proceeding falls to the‘judicial’ rather than ‘informal’ spectrum extreme: Baker, supra, at paras. 21-28. [33] I would simply add that I also subscribe to the principles set forth in Principles of Administrative Law (5th ed. 2004) byJones and de Villars: Obviously, it is impossible to give a fair hearing to a person who has no notice of the action which a statutory delegate proposes to take... The courts have consistently held that a fair hearing can only be had if the parties affected by the tribunal’s decision know the case tobe made against them.

Only in these circumstances can they rebut evidence prejudicial to their case and bring evidence to prove theirposition. But knowing the case that must be met is not enough, of course: the opportunity to present the other side of the matter mustalso be allowed. [34] From the foregoing, it will be clear that I agree that the Appellant’s right to present the other side of the matter was breachedin this instance. In my view, it is no answer to say that the Appellant’s right to testify on his on behalf, and to call other evidence, duringhis criminal trial satisfied this procedural requirement.

While the criminal proceeding and the common law peace bond were, arguably,related proceedings, they were clearly separate proceedings, each of which carried separate procedural and evidentiary requirements. Therights of the Appellant relative to each of these proceedings ought to have been specifically considered by the Learned Trial Judge beforehe moved from one proceeding to the next. I agree with the reasoning in Lynch, supra, that this is a natural development of thepre-Charter procedural approach to common law peace bonds.

It may be arguable that a person subject to a Criminal Code, s. 810-810.2application, as in Gerrand, supra, faces a jeopardy analogous to a common law peace bond, but that is not the case before this Court. [35] It follows that I do not accept the Respondent’s argument that the Appellant was somehow subject to any kind of penaltyarising from the proceedings, including the possibility that a peace bond could be imposed at the conclusion of his criminal trial.

In myview, this ignores the differing legal burdens that exist in the two proceedings and, more importantly, the range or scope of evidence thatmay be relevant in the two proceedings. Further, it blurs a fundamental distinction between the two processes, namely that a peace bondis forward-looking focussed on the likelihood of future misconduct, while a criminal charge is backward-looking relative to a clearlydefined event or events.

One punishes, the other anticipates. [36] A reduced procedural standard for common law peace bonds would be peculiar, given the manner in which the statutoryCriminal Code analogue operates. It is significant, in my view, that s. 810 of the Criminal Code, the statutory authority for peace bonds,specifically incorporates all of the provisions of

Part XXVII of the Criminal Code, including the right to make full answer and defenceconfirmed in s. 802. I agree with the Appellant that it would be unreasonable to conclude that a common law peace bond does not includethe right to make full answer and defence when the statutory analogue clearly does. My conclusion on that point merely repeats the rulein Shaben, supra. [37] Though not raised by the Respondent (either in written submissions or oral argument), I note that the Appellant’s trialcounsel did have a brief exchange with the Learned Trial Judge regarding the issue of notice relative to a common law peace bond. Forease of reference, I repeat this exchange again: The Court: Under

section 810, the Broomes cases out of the Ontario high court - - and it is almost 30 years old ...

Mr. Pringle Yeah. The Court: ... suggests that a defendant on a charge of assault need not be specifically warned that the judge intends todismiss a charge but exercise a common law jurisdiction to bind the defendant over to keep the peace. Mr. Pringle: I think ... The Court: This Court does not have to give notice, but I have always felt that it is appropriate to give notice that that is acontemplation that I am ... do you have any comment on it? Mr. Pringle: No, I think you can do that, Sir. [Emphasis added.] [38] In my view, nothing turns on this response.

The whole matter of a common law peace bond clearly arose unexpectedly at theconclusion of the Appellant’s criminal trial. As such, I have no doubt that the reference to same would have taken the Appellant’scounsel (as well as Crown Counsel) somewhat by surprise. In my view, counsel’s response is ambiguous. It is not clear to me whether hewas agreeing with the Learned Trial Judge’s practice of giving notice in such circumstances or, alternatively, agreeing that notice was notrequired, as per the decision in Broomes, supra.

Under the circumstances, I am simply not prepared to conclude that this spontaneousresponse can be taken as a clear and unequivocal waiver of the Appellant’s rights, particularly when that response was made withoutinstruction from the client.

Even if I were to conclude that this statement amounted to a waiver of the right to notice of the proposedcourse of action, I do not believe that it could be argued that it was similarly a waiver of the right to make submissions and/or callevidence. [39] I accept the Appellant’s contention that agreement, even consent, cannot, as a general proposition, confer jurisdiction thatdoes not otherwise exist. The breach of the principles of natural justice, such as which clearly took place in this instance, amounts tojurisdictional error. ii.

Other Alleged Breaches of Natural Justice and the Factual Basis for the Peace Bond [40] The Appellant has raised other issues in this appeal that relate to both the process followed by the Learned Trial Judge and thereasonableness of the ultimate conclusion to order a common law peace bond.

Given my conclusion concerning the requirement forsubmissions it is not necessary for me to rule on these grounds, however I will make some brief observations on these questions as theseare alternative bases on which I would quash the Learned Trial Judge’s order. [41] First, the Learned Trial Judge made the common law peace bond order without inquiry as to whether that remedy was onesought by the Crown. I believe that the comments of McLachlin J., as she then was, in R. v. Parks, (SCC), [1992] 2S.C.R. 871, 95 D.L.R. (4th) 27 are applicable in this instance. While R. v.

Parks dealt with the defence of non-insane automatism, thecase also considered the appropriateness of remitting the matter back to the trial judge for the imposition of a peace bond. With thesupport of a majority of the Court, McLachlin J. expressed serious reservation about the imposition of a remedy affecting the liberty ofthe subject by a court on its own motion.

At p. 915 she stated: Generally, the courts do not grant remedies affecting the liberty of the subject unless they are asked to do so by the Crown, which ischarged with instituting such legal processes as it deems appropriate having regard to the public interest and fairness to the individualinvolved. In the absence of an application by the Crown, I hesitate to remit the case for consideration of further measures against theaccused. [Emphasis added.] [42] In my view, it was ill-advised, to say the least, for the Learned Trial Judge to impose this remedy on his own motion.

In sodoing, he blurred the important distinction between the role of the Crown and the role of the Court in the adversarial process. In myview, this amounted to a clear error. Further, appellate courts have stressed that the Crown (and an accused) may have relevantinformation that ought to be sought where a judge considers a result other than one advanced by a party. This issue commonly occursduring sentencing (R. v. G.W.C., 2000 ABCA 333, 277 AR 20; R. v.

Tkachuk, 2001 ABCA 243, 293 AR 171), and a requirement forCrown input should be considered in a careful and cautious manner anytime a judge decides to exercise his or her own initiative (R. v.

Keough , 2012 ABCA 14 at paras. 19-21 ). I therefore conclude the failure to seek Crown input on whether a common law peace bond was appropriate is another basis to quash the common law peace bond. [ 43 ] The last two questions, the adequacy of reasons and a reasonable factual basis for the peace bond, effectively fuse. The Learned Trial Judge provided no meaningful explanation of why he considered a common law peace bond appropriate. The necessary judicial standard for reasons is explained in R. v.

Sheppard , 2002 SCC 26 at para. 55 , [2002] 1 S.C.R. 869 , that the basis for a decision “... is reasonably intelligible to the parties and provides the basis for meaningful appellate review.” Abella J. in Newfoundland and Labrador Nurses' Union v.

Newfoundland and Labrador (Treasury Board) , supra , at para. 14 , has instructed that the questions of ‘adequate reasons’ and ‘a reasonable basis for a decision’ are, operationally, aspects of a more general and common issue: [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M.

Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at § 12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes .

This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). [Emphasis added.] [ 44 ] I do not believe that evidence adduced at trial provided the necessary basis for the imposition of a peace bond.

In Parks , supra, Sopinka J. stated at p. 911 “... 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.” [ 45 ] The Learned Trial Judge made no express finding that there was probable ground to suspect future misbehaviour on the part of the Appellant. Indeed, his reasons are silent as to why he decided to impose a common law peace bond.

My review of the evidence adduced at trial indicates that: 1. the Appellant and the complainant had been separated for nearly a year by the time this matter reached trial; 2. that divorce proceedings had been instituted; and 3. that the Appellant had not seen the complainant for many months prior to trial. Moreover, the Appellant testified that he had no desire to have any further contact with the complainant. [ 46 ] In my view, these facts did not establish a factual foundation raising probable ground to suspect future misbehaviour.

A properly instructed trier of fact could not reasonably come to such a conclusion. The Learned Trial Judge’s silence on this point provides no basis for me to come to an alternative conclusion. That is another alternative basis to quash the common law peace bond. 6. Disposition [ 47 ] The application is allowed and the peace bond is quashed. Heard on the 26 th day of September, 2011. Dated at the City of Edmonton, Alberta this 31 st day of January, 2012 .

M. David Gates J.C.Q.B.A. Appearances: A.D. Pringle, Q.C. For the Appellant K. MacDonald/R Brandt For the Respondent