R. v. Palosaari Date:, 2012 BCPC 99

Citation: R. v. Palosaari Date: 20120323 2012 BCPC 0099 File No: 216526-6-KC Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARKKU ARTERO PALOSAARI REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOVE Counsel for the Crown: D. Pruim Counsel for the Defendant: F. Arbabi, Articled Student Place of Hearing: Vancouver , B.C. Date of Hearing: March 23, 2012 Date of Judgment: March 23, 2012 [ 1 ] THE COURT: On September 22nd, 2011, this court placed Mr. Palosaari on a common law peace bond with his consent.

This document was drawn as a recognizance with a $500 deposit -- no deposit -- $500, no deposit, no surety. The terms of the recognizance include, amongst other, that he was to have no contact directly or indirectly with Sylvia Palosaari, his mother, except under specific circumstances and he was not to be at her house -- her home address as long as she continued to live there. [ 2 ] He was charged with breaching two terms of the recognizance, being the terms I have just referred to.

The charge has been laid pursuant to Criminal Code s. 127 which reads: Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided ... guilty of [and in this case] ... (

b) an offence punishable on

summary conviction. [ 3 ] On October 13th, 2011, a Vancouver Police officer went to Ms. Palosaari's home where the officer found the accused and his mother. At the time, the accused told the officer, "I live here. I live here. I have lived here a long time. I buy her groceries. This is my address on all my documents." No other evidence was called. I found as a fact that Count 1 which is the count of being at her residence

was made out. [ 4 ] The issue then became whether this breach of the common law peace bond was an offence under s. 127. In the only B.C. case brought to my attention, R. v. Taylor , B.C. Provincial Court, the court identified the issue, but found it unnecessary to decide whether jurisdiction would lie under s. 127 . [ 5 ] The defence submits that under the recognizance, there is "a punishment or other mode of proceedings is expressly provided by law," and that is the $500 which the court could order to be forfeited for violation of the recognizance.

Therefore, the defence argues that s. 127 does not apply. [ 6 ] Counsel referred the court to several cases from across the country. The case that appears to have the facts closest to the one at bar is an Ontario Court of Justice decision in 2011 of R. v. Mousseau where it was held after a review of the case law, in conclusion, that Code s. 127 had an application -- did not have -- sorry, had no application in enforcing the conditions of a common law peace bond allowing that the recognizance already provided for the payment of money.

This case being one of comparable jurisdiction to this court is, of course, persuasive. It is not binding. [ 7 ] The case that I found to be the most persuasive is also a case from Ontario. It is from the Ontario Court of Appeal, R. v. Gibbons . There, injunction -- there, there was an injunction issued ordering anyone from displaying a sign within 60 feet of an abortion clinic. Gibbons breached this terms and was charged under s. 127.

The argument there as here was that 127 was not applicable because she, Gibbons, was subject to contempt proceedings as well as specific proceedings pursuant to the rules of the Ontario court for disobeying a court order. [ 8 ] I accept the words of Watt J.A. who correctly states the relationship between the common law and statute. He follows and quotes extensively from the Supreme Court of Canada in R. v. Clement . I have copies of the Gibbons case for counsel, which were not provided to me.

Starting at paragraph 35, Watts J.A. says: 35 The appellant rests her case for the inapplicability of s. 127(1) to her alleged conduct on the ground that rules 60.11 and 60.12 constitute a "punishment or other mode of proceeding ... expressly provided by law". It follows, according to the appellant, that her alleged conduct cannot be prosecuted under s. 127(1).

For the reasons that follow, I disagree. 36 To begin, the mere availability of other modes of proceeding to address the same conduct does not, without more, remove a prosecution under s. 127(1) from the remedies available to punish non-compliance ... [ 9 ] He refers to Clement which is the Supreme Court of Canada case at page 478: It is only where the other avenue falls within the language of the exception imbedded in s. 127(1) that the offence of s. 127(1) becomes inapplicable, unavailable as an enforcement mechanism ...

Again quoting Clement , page 478. 37 To fall within the exception in s. 127(1), rules 60.11 and 60.12 must be i. a punishment or other mode of proceeding; ii. created by or originating in statute law; and iii. expressly provided. 38 A punishment or other mode of proceeding that originates in the common law does not meet the requirements of the exception since its origin is not statutory and it is not "expressly provided": Clement at p. 475-76. 39 The authority to punish disobedience or compel compliance by proceedings for contempt originates in the common law.

Section 9 of the Criminal Code does not expressly enact the power to punish for criminal contempt, rather merely preserves the common law jurisdiction to do so: Clement at p. 473. The authority to punish for civil contempt equally resides in the common law: the authority of the Superior Court to control its own process. It is the common law that furnishes the legal foundation for a proceeding for contempt: Clement at pp. 475-76. 40 Contempt is an "other mode of proceeding" within s. 127(1) of the Criminal Code . But not every "other mode of proceeding" will mobilize the exception in s. 127(1) .

The source of the "other mode of proceeding" must be "expressly provided by law". And "by law" means statute law, not common law: Clement at p. 477. [ 10 ] I conclude that the fact that there may be some other remedy available, here, for example, a $500 forfeiture, in Gibbons , contempt of court proceedings, are not remedies provided by statute law and therefore does not immobilize s. 127(1) . A breach of the common law peace bond is enforceable pursuant to Criminal Code s. 127(1). The accused is guilty as charged on Count 1. [REASONS FOR SENTENCE CONCLUDED]