Her Majesty The Queen Appellant v. Albert Penunsi, 2019 SCC 39

SUPREME COURT OF CANADA Citation: R. v. Penunsi, 2019 SCC 39, [2019] 3 S.C.R. 91 Appeal Heard: February 21, 2019 Judgment Rendered: July 5, 2019 Docket: 38004 Between: Her Majesty The Queen Appellant and Albert Penunsi Respondent - and - Director of Public Prosecutions, Attorney General of Ontario, Yukon Legal Services Society, Canadian Civil Liberties Association, Canadian Broadcasting Corporation and Canadian Association for Progress in Justice Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.

Reasons for Judgment: (paras. 1 to 86) Rowe J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown and Martin JJ. concurring) R. v. Penunsi, 2019 SCC 39, [2019] 3 S.C.R. 91 Her Majesty The Queen Appellant v. Albert Penunsi Respondent and Director of Public Prosecutions, Attorney General of Ontario,

Yukon Legal Services Society, Canadian Civil Liberties Association, Canadian Broadcasting Corporation and Canadian Association for Progress in Justice Interveners Indexed as: R. v. Penunsi 2019 SCC 39 File No.: 38004. 2019: February 21; 2019: July 5.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal of newfoundland and labrador Criminal law — Sureties to keep the peace — Application of arrest and judicial interim release provisions — Information laid against defendant under peace bond provisions of Criminal Code on basis of reasonable grounds to fear he would commit serious personal injury offence — Crown’s request to show cause why defendant ought to be detained or required to abide by certain conditions pending hearing on Information denied by provincial court judge — Whether judge can compel appearance of defendant to Information — Whether power of arrest and judicial interim release provisions of Criminal Code apply to peace bond proceedings — Criminal Code, R.S.C. 1985, c.

C-46, s. 810.2 . P was nearing the end of a prison sentence when a peace bond Information under s. 810.2 of the Criminal Code was laid against him by an RCMP officer. The officer swore that there were reasonable grounds to fear P would commit a serious personal injury offence upon his release. Days before the end of his prison sentence, P was brought to court to respond to the Information, at which time a date was set for the hearing to determine whether the fear sworn to in the Information was reasonably held. However, the hearing was scheduled to take place after P’s release from prison.

Wishing to avoid P’s unconditional release in the interim period, the Crown sought to show cause why P ought to be detained or required to abide by certain conditions pending the hearing. In denying the Crown’s request, the provincial court judge held that he did not have jurisdiction to subject P to a show cause hearing, concluding that the judicial interim release (“JIR”) provisions of the Criminal Code do not apply to peace bond proceedings. The Crown sought judicial review of the provincial court judge’s decision.

Prior to the application being heard, P voluntarily entered a recognizance with conditions at his peace bond merits hearing. Though the issue was moot, the Supreme Court of Newfoundland and Labrador granted declaratory relief accepting that a judge can compel a defendant’s initial appearance by issuing a warrant of arrest and thus, that the JIR provisions must apply to provide a procedure by which the defendant could subsequently be released. The Newfoundland and Labrador Court of Appeal allowed P’s appeal and restored the provincial court judge’s ruling.

Held : The appeal should be allowed and the order of the Court of Appeal quashed. The arrest and JIR provisions of the Criminal Code apply, with necessary modifications, to peace bond proceedings under s. 810.2 of the Criminal Code and to all other peace bond proceedings. The appearance of a defendant to a peace bond Information may be compelled by a summons or a warrant of arrest. A judge or justice of the peace also has jurisdiction to subject a person to a show cause hearing when he or she has been arrested in relation to a peace bond Information and brought before the court.

Section 810.2(2) states that a provincial court judge who receives information under s. 810.2(1) “may cause the parties to appear before a provincial court judge”. However, there is no internal mechanism provided by Parliament within s. 810.2 by which a judge could compel the appearance of either party. Rather, the procedures for compelling attendance are found in

Part XVI of the Criminal Code (“ Compelling Appearance of Accused Before a Justice and Interim Release ”). Instead of reproducing those procedures in the peace bond provisions, Parliament has chosen to apply the relevant

Part XVI provisions to the peace bond scheme via a series of incorporating provisions. First, each peace bond provision (except for s. 810.02) expressly incorporates s. 810(5). Then, s. 810(5) incorporates all provisions of

Part XXVII (“Summary Convictions”), including s. 795, into peace bond proceedings.

Section 795, in turn, incorporates provisions of

Part XVI into

Part XXVII. Therefore, ss. 810.2(8), 810(5), and 795 operate together to incorporate the provisions of

Part XVI, which houses the summons, arrest, and JIR provisions, into

Part XXVII, which houses the peace bond provisions. However, s. 795 does not import

Part XVI wholesale into

Part XXVII, but rather, its wording limits its application: the provisions of

Part XVI apply “in so far as they are not inconsistent with”

Part XXVII, and “with any necessary modifications”. Accordingly, whether

Part XVI applies to peace bond proceedings depends on the proper

interpretation of the statutory language in s. 795. When that language is properly interpreted, it is clear that Parliament intended the arrest and JIR provisions under

Part XVI to apply to peace bond proceedings. The provisions of

Part XVI, with respect to compelling appearance, are not inconsistent with the peace bond provisions. To the contrary, they are necessary for the proper functioning of the scheme. Parliament would not have sought to create a scheme where a judge may hold a hearing to determine whether to order a defendant to enter into a recognizance to keep the peace, but make no provision whereby a judge can ensure the defendant attends the hearing. The application of the JIR provisions flows from the power of arrest under s. 507 of the Criminal Code .

Where a defendant is arrested and detained, it follows that the judicial interim release scheme applies in order to release the defendant from custody. When applied with regard to the context and purpose of the peace bond scheme, the arrest and JIR provisions are a consistent and appropriate interim measure and necessary to the function and integrity of the peace bond proceedings. Furthermore, the arrest and JIR provisions apply to peace bond proceedings with simple modifications that do not amount to substantive change in the law. Accordingly, Parliament intended the arrest and JIR provisions under

Part XVI to apply to peace bond proceedings.

The proper application of the arrest and JIR provisions in the context of peace bond proceedings must be guided by thepolicy objectives of timely and effective justice, and minimal impairment of liberty. To begin, when exercising the discretion whether tohold a hearing, the justice must consider whether the fear sworn to in the Information is reasonably held. Initiating a s. 810.2 peace bondproceeding upon a person’s release from prison risks a further deprivation of liberty after the completion of a sentence alreadydetermined to be proportionate.

Without further evidence that the feared conduct will occur, a fear based solely on the offence for whicha defendant is serving a sentence will not be sufficient. Where the justice exercises his or her discretion to cause the parties to appear, heor she will proceed to

Part XVI of the Criminal Code which creates a ladder of increasingly coercive measures to compel appearance of adefendant before a court. At the low end of the ladder is a summons or an appearance notice issued by a peace officer which is thedefault process for compelling attendance. Where a defendant appears before a justice pursuant to a summons and the hearing isadjourned, the justice has no jurisdiction to impose interim conditions pending the merits hearing.

If new information comes to light afterthe issuance of a summons, including at the initial hearing, which information raises concerns regarding the risk the defendant poses tothe public or the likelihood of his or her attendance at the proceeding, an arrest warrant may be sought at that time. Higher up the ladder is arrest, and release by an officer in charge on an undertaking or recognizance. Where an Informationis laid before a justice and he or she finds that there are “reasonable grounds to believe that it is necessary in the public interest”, he orshe may issue a warrant for the defendant’s arrest.

This phrase must be interpreted in light of the context (where the subject is notsuspected of having committed a criminal offence) and the purpose (to bring the subject forward to a hearing) of the provision operatingwithin the peace bond scheme. Accordingly, it will only be necessary in the public interest to issue an arrest warrant where a case hasbeen made out that the defendant will not otherwise attend court or that the defendant poses an imminent risk to the public. Whileplacing a person under arrest inherently infringes his or her liberty, the infringement should be minimized to the extent possible.

Higher still up the ladder is detention and judicial interim release. In the rare case where a peace bond defendant is arrestedand held over for bail, the JIR provisions under s. 515 provide the mechanism to release the defendant from custody. These provisionsmust be applied with due regard to ensuring the attendance of the accused at the peace bond hearing, and the ultimate goal of the peacebond scheme: to place the defendant under recognizance where an informant has a reasonably held fear that the defendant will commitcertain harms.

It would be inconsistent with the peace bond provisions to impose conditions aimed at protecting against a risk to thepublic that surpass the conditions that could be placed on a defendant at the conclusion of a hearing on the merits of the peace bondapplication. The default is release on the giving of an undertaking without conditions, unless the prosecutor (or the informant) can showcause why an order for more stringent release conditions should be made.

For a condition to be reasonable, it must have a nexus witheither ensuring the defendant’s attendance in court, or with the feared conduct sworn to in the Information. Under most circumstances,the final rung of the ladder would be a recognizance without sureties with reasonable conditions in the circumstances.

The circumstanceswhere detention is justified in the peace bond context must also mirror the possible outcomes provided for in the peace bond provisions.A judge has authority to order detention following a peace bond hearing only where the defendant fails or refuses to enter into arecognizance to keep the peace and be of good behaviour.

Accordingly, the rare case where detention may be justified will likely onlyarise where a defendant refuses to sign a recognizance and therefore refuses to be bound by conditions related to ensuring attendance atthe peace bond hearing, and/or to addressing in the interim the fear sworn to in the Information. Cases Cited Overruled: MacAusland v. Pyke (1995), (NS SC), 139 N.S.R. (2d) 142; approved: R. v. Budreo (1996), (ON SC), 27 O.R. (3d) 347, aff’d (2000), (ON CA), 46 O.R. (3d) 481, leave to appeal dismissed,[2001] 1 S.C.R. vii; R. v. Cachine, 2001 BCCA 295, 154 C.C.C. (3d) 376; R. v.

Allen (1985), (ON CA), 18 C.C.C.(3d) 155; R. v. Wakelin (1991), (SK CA), 71 C.C.C. (3d) 115; R. v. Nowazek, 2018 YKCA 12, 366 C.C.C. (3d) 389;referred to: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Borowski v. Canada (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 342; International Brotherhood of Electrical Workers, Local Union 2085 v.Winnipeg Builders’ Exchange, (SCC), [1967] S.C.R. 628; New Brunswick (Minister of Health and CommunityServices) v. G. (J.), (SCC), [1999] 3 S.C.R. 46; R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105; R. v. Oland, 2017 SCC17, [2017] 1.

S.C.R. 250; R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385; Goodyear Tire & Rubber Co. of Canada v. The Queen, (SCC), [1956] S.C.R. 303; R. v. S. (S.), (SCC), [1990] 2 S.C.R. 254; Mackenzie v. Martin, (SCC), [1954] S.C.R. 361; R. v. Parks, (SCC), [1992] 2 S.C.R. 871; R. v. Woking Justices, Ex p. Gossage, [1973] 2 AllER 621; R. v. Forrest (1983), (BC SC), 8 C.C.C. (3d) 444; Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Nowegijick v. The Queen, (SCC), [1983] 1 S.C.R. 29; Parrill v.

Genge (1997), (NL CA), 148 Nfld. & P.E.I.R. 91; Bessette v. BritishColumbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535; 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), (SCC), [1996] 3 S.C.R. 919; R. v. Gill, [1991] B.C.J. No. 3255 (QL); R. v. Schafer, 2018 YKTC 12; R. v. Antic, 2017 SCC27, [2017] 1 S.C.R. 509; R. v. Goikhberg, 2014 QCCS 3891; R. v. Hebert (1984), (NB CA), 54 N.B.R. (2d) 251; R. v.Hall, 2002 SCC 64, [2002] 3 S.C.R. 309; R. v. Hall (1996), (NL CA), 138 Nfld. & P.E.I.R. 80; R. v. Walsh, 2015ABCA 385; Smith v. Jones, (SCC), [1999] 1 S.C.R. 455; R. v.

Morales, (SCC), [1992] 3 S.C.R. 711. Statutes and Regulations Cited Bill C-55,

An Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal RecordsAct, the Prisons and Reformatories Act and the Department of the Solicitor General Act, 2nd Sess., 35th Parl., 1996-1997. Criminal Code, R.S.C. 1985, c. C-46, ss. 83.29(4), 83.3,

Part XVI, 493, Form 9, 499, 503, 504, 507, 507.1, 515,

Part XVIII, 715.37(4),Part XXVII, 788, 795, 810, 810.01, 810.011, 810.02, 810.1, 810.2, 811. Criminal Code, S.C. 1953-54, c. 51, s. 717. Criminal Code, 1892, S.C. 1892, c. 29, s. 959(2). Justices of the Peace Act 1361 (Eng.), 34 Edw. 3, c. 1.

Authors Cited Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Evidence, No. 88, 2nd Sess., 35th Parl., December 3,1996, at p. 88:4. Canada. Public Prosecution Service. Public Prosecution Service of Canada Deskbook,

Part III, c. 19, “Bail Conditions to Address OpioidOverdoses” (updated April 1, 2019) (online: https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/d-g-eng.pdf; archivedversion: https://www.scc-csc.ca/cso-dce/2019SCC-CSC39_1_eng.pdf). Canadian Civil Liberties Association and Education Trust. Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, by AbbyDeshman and Nicole Myers, 2014 (online: https://ccla.org/dev/v5/_doc/CCLA_set_up_to_fail.pdf; archived version: https://www.scc-csc.ca/cso-dce/2019SCC-CSC39_2_eng.pdf).

Chewter, Cynthia L. “Violence Against Women and Children: Some Legal Issues” (2003), 20 Can. J. Fam. L. 99. Gauthier, Sonia. “L’engagement de ne pas troubler l’ordre public dans les causes de violence conjugale ayant fait l’objet d’un abandondes poursuites judiciaires criminelles (art. 810 C.CR.)” (2011), 23 C.J.W.L. 548. Neumann, Peter M. “Peace Bonds: Preventive Justice? Or Preventing Justice?” (1994), 3 Dal. J. Leg. Stud. 171. Orr, David. “Section 810 Peace Bond Applications in Newfoundland” (2002), 46 Crim. L.Q. 391. Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed.

Markham, Ont.: LexisNexis, 2014. Tutty, Leslie M. and Jennifer Koshan. “Calgary’s Specialized Domestic Violence Court: An Evaluation of a Unique Model” (2013), 50Alta. L. Rev. 731. APPEAL from a judgment of the Newfoundland and Labrador Court of Appeal (Green, White and Hoegg JJ.A.), 2018NLCA 4 , 2018 NCLA 4, 357 C.C.C. (3d) 539, [2018] N.J. No. 13 (QL), 2018 CarswellNfld 12 (WL Can.), setting aside adecision of Goodridge J., 2015 NLTD(G) 141, 373 Nfld. & P.E.I.R. 170, [2015] N.J. No. 337 (QL), 2015 CarswellNfld 385 (WL Can.).Appeal allowed. Lisa M. Stead, for the appellant. Jessica Tellez, for the respondent.

David W. Schermbrucker and Elaine Reid, for the intervener the Director of Public Prosecutions. Written submissions only by Gregory J. Tweney and Stacey D. Young, for the intervener the Attorney General of Ontario. Vincent Larochelle and Greg Johannson, for the intervener the Yukon Legal Services Society. Scott Bergman, for the intervener the Canadian Civil Liberties Association. Sean A. Moreman and Farid Muttalib, for the intervener the Canadian Broadcasting Corporation. Ryan D.W. Dalziel and Joseph J. Saulnier, for the intervener the Canadian Association for Progress in Justice.

The judgment of the Court was delivered by Rowe J. — I. Background [1] This appeal raises the question of whether the judicial interim release (“JIR”) provisions — and by necessaryimplication, the power of arrest — under

Part XVI of the Criminal Code, R.S.C. 1985, c. C-46, apply to provisions under the heading“Sureties to Keep the Peace” in

Part XXVII of the Criminal Code (“peace bond provisions”). The JIR provisions (commonly referred toas the bail provisions) require a judge to release an accused person pending trial without conditions unless the Crown can demonstratewhy some more restrictive measure is necessary (for example, an order to abide by interim conditions, or pre-trial custody). A peacebond is an order from a judge to keep the peace, be of good behaviour and abide by certain conditions.

A peace bond may be orderedwhere the judge is satisfied on the evidence that an informant has reasonable grounds to fear that the defendant will cause harm toanother person. Peace bonds are not “offences” under the Criminal Code. For the reasons that follow, I conclude that the arrest and JIRprovisions apply, with necessary modifications, to peace bond proceedings. The peace bond provision at issue in this appeal is s. 810.2.However, except where otherwise specified, the following applies to all peace bond provisions. [2] Mr.

Penunsi was nearing the end of a prison sentence when a peace bond Information under s. 810.2 of theCriminal Code was laid against him by a Royal Canadian Mounted Police (“RCMP”) officer. In the Information, the officer swore thatthere were reasonable grounds to fear Mr. Penunsi would commit a serious personal injury offence upon his release. The sentence Mr.Penunsi was serving at the time was for breach of a prior s. 810.2 peace bond. A judge issued a warrant for Mr. Penunsi’s arrest.However, the warrant was never executed, as Mr. Penunsi was already in custody. II.

Judicial History [3] Days before the end of his prison sentence, Mr. Penunsi was escorted by the RCMP to court to respond to theInformation, at which time a date was set for the hearing to determine whether the fear sworn to in the Information was reasonably held.

However, the hearing was scheduled to take place after Mr. Penunsi’s release from prison. Wishing to avoid Mr. Penunsi’s unconditionalrelease in the interim period, the Crown sought to show cause why Mr. Penunsi ought to be detained or required to abide by certainconditions pending the hearing. In denying the Crown’s request, the provincial court judge held that he did not have jurisdiction tosubject Mr. Penunsi to a show cause hearing, concluding that the JIR provisions do not apply to peace bond proceedings.

He added thateven if he did have jurisdiction, he would decline to exercise it. [4] The Crown sought judicial review of the provincial court judge’s decision, requesting certiorari and a declarationthat the JIR provisions are applicable to proceedings under s. 810.2, and that the judge was under a statutory duty to conduct a showcause hearing at the request of the Crown. Prior to the certiorari application being heard, Mr.

Penunsi voluntarily entered a recognizancewith conditions at his peace bond merits hearing. [5] Though the issue was moot, the Supreme Court of Newfoundland and Labrador granted declaratory relief (2015NLTD(G) 141, 373 Nfld. & P.E.I.R. 170). The court accepted that a judge can compel a defendant’s initial appearance respecting a s.810.2 Information by issuing a warrant of arrest. Consequently, the JIR provisions must apply to provide a procedure by which thedefendant could subsequently be released. Mr.

Penunsi appealed. [6] The Newfoundland and Labrador Court of Appeal restored the provincial court judge’s ruling. The court found thatthe provisions in

Part XVI of the Criminal Code (“Compelling Appearance of Accused Before a Justice and Interim Release”) wereinconsistent with the peace bond scheme and thus did not apply to it. The court held that it would be inconsistent to detain an individualin respect of a proceeding in which incarceration was not available as a sanction.

It held that the modifications to the statutory languagerequired to enable a judge to subject a defendant named in a peace bond Information to a show cause hearing would be “of such a natureand character as to effectively alter the law respecting the power of arrest” (2018 NLCA 4, 357 C.C.C. (3d) 539, at para. 78). III. Parties’ Submissions [7] Both parties urge upon this Court to decide the issue despite the fact that it is moot. [8] The appellant Crown submits that the Newfoundland and Labrador Court of Appeal erred in finding that

Part XVIof the Criminal Code does not apply to peace bond proceedings. In its view, s. 810.2(2) states that a judge may “cause the parties toappear” to answer to a sworn peace bond Information, and thus authorizes a judge to use the procedures set out in

Part XVI to bring thenecessary people to court for the hearing, either pursuant to a summons or an arrest warrant. No major modifications are required to thestatutory language in order to apply the relevant provisions under

Part XVI to the peace bond provisions. The Crown points to a numberof appellate decisions that support its position. It asks this Court to follow the weight of judicial authority and answer the question ofwhether the arrest and JIR provisions apply to peace bond proceedings in the affirmative. [9] The respondent, Mr. Penunsi, relies on a textual analysis of the statutory language. He argues that the arrest andJIR provisions of the Criminal Code permit the exercise of those powers only against an “accused” as that term is defined in s. 493 (inPart XVI). The definition of “accused” in s. 493 includes (

a) a person to whom a peace officer has issued an appearance notice (in lieu ofarrest); and (

b) a person arrested for a criminal offence. In his submission, “accused” cannot include a defendant to a peace bondproceeding, because a defendant to a peace bond proceeding is not charged with committing a criminal offence. In the respondent’s view,the modifications necessary for the JIR provisions to operate within the peace bond scheme extend beyond mutatis mutandis. Therespondent emphasizes the holding in MacAusland v.

Pyke (1995), (NS SC), 139 N.S.R. (2d) 142 (S.C.), that applyingthe JIR provisions to peace bond proceedings would potentially subject a defendant to a greater infringement of liberty in the interim thanwould be possible following a hearing of the peace bond application on the merits (para. 31). This outcome, as put by the Court ofAppeal and echoed by the respondent, would be “illogical and absurd” (para. 58, cited in R.F., at para. 77). IV. Analysis A.

Mootness [10] “The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolvinga live controversy which will or may actually affect the rights of the parties to the litigation except when the courts decide, in theexercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard” (Doucet-Boudreau v. Nova Scotia(Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 17).

The expenditure of judicial resources on a moot point is warrantedin cases that raise important issues but are evasive of review (see, e.g., Doucet-Boudreau, at para. 22; Borowski v. Canada (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 342, at p. 360; International Brotherhood of Electrical Workers, Local Union 2085 v.Winnipeg Builders’ Exchange, (SCC), [1967] S.C.R. 628; New Brunswick (Minister of Health and CommunityServices) v. G. (J.), (SCC), [1999] 3 S.C.R. 46). [11] This Court has recently held in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, and R. v.

Oland, 2017 SCC 17,[2017] 1 S.C.R. 250, that issues of judicial interim release can be evasive of review due to their temporary nature. Both the appellant andthe respondent urge this Court to reconcile the divide in the jurisprudence on the issue central to this appeal despite the fact that thedetermination will have no immediate impact on Mr. Penunsi. I agree with the parties that this is an occasion where the significance ofthe issue and the inconsistency in the appellate jurisprudence merits the expenditure of resources to decide the moot issue (R. v.

Smith,2004 SCC 14, [2004] 1 S.C.R. 385, at para. 50; Borowski). B. Peace Bonds and the Criminal Power [12] The peace bond is an instrument of preventive justice. The prevention of crime is a well-recognized purpose of thecriminal law. As Locke J. explained in Goodyear Tire & Rubber Co. of Canada v. The Queen, (SCC), [1956] S.C.R. 303:“The power to legislate in relation to criminal law is not restricted, in my opinion, to defining offences and providing penalties for theircommission.

The power of Parliament extends to legislation designed for the prevention of crime as well as to punishing crime” (p. 308;see also R. v. S. (S.), (SCC), [1990] 2 S.C.R. 254, at p. 282).

[13] In Mackenzie v. Martin, (SCC), [1954] S.C.R. 361, Kerwin J. (as he then was) wrote that a peacebond delivers preventive justice by “obliging those persons, whom there is probable ground to suspect of future misbehaviour, tostipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen; by finding pledges orsecurities for keeping the peace, or for their good behaviour” (p. 368, citing W. Blackstone, Commentaries on the Laws of England (16thed. 1825), at p. 251, cited in R. v. Parks, (SCC), [1992] 2 S.C.R. 871, at p. 911, per Sopinka J.). [14] R. v.

Budreo (1996), (ON SC), 27 O.R. (3d) 347 (Ont. Ct. Gen. Div.) (“Budreo S.C.”), dealt witha constitutional challenge to the peace bond under s. 810.1 of the Criminal Code. Then J. referred to the preventative nature of the peacebond: The court in considering what constitutes fundamental justice in a liberal society must refer to the history of a particular power and thepolicy rationale behind it. Preventive justice is the exercise of judicial power not in order to sanction past conduct but to prevent futuremisbehaviour and harm.

The exercise of this power is justified by the risk of harm or dangerousness posed by certain individuals . . . .[pp. 368-69] This was echoed by Laskin J.A. in his decision affirming the reasons of Then J. (R. v. Budreo (2000), (ON CA), 46O.R. (3d) 481 (C.A.) (“Budreo C.A.”), leave to appeal dismissed, [2001] 1 S.C.R. vii): The criminal justice system has two broad objectives: punish wrongdoers and prevent future harm.

A law aimed at the prevention ofcrime is just as valid an exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867, as a law aimed atpunishing crime. [Footnote omitted; para. 27] [15] The modern peace bond can be traced back as early as the 1300’s, to the common law practice of “binding over”.“Binding over” described a judicial authority to make preventive orders to maintain social order despite no specific crime having beencharged, aimed at preventing a wide range of undesirable activity.

The earliest reference to the practice was in the Justices of the PeaceAct 1361 (Eng.), 34 Edw. 3, c.1, where the power was granted to justices to “take of people who came before them sufficient mainpriseof their good behaviour towards the king and his people” (Law Commission No. 222, Binding Over: Report on Reference under Section3(1)(

e) of the Law Commissions Act 1965 (1994), cited in D. Orr, “Section 810 Peace Bond Applications in Newfoundland” (2002), 46Crim. L.Q. 391, at p. 391). [16] In 1892, existing English law was codified in the Criminal Code, including the common law peace bond. Section959(2) of the Criminal Code, 1892, S.C. 1892, c. 29, provided: 2.

Upon complaint by or on behalf of any person that on account of threats made by some other person or on any other account, he, thecomplainant, is afraid that such other person will do him, his wife or child some personal injury, or will burn or set fire to his property,the justice before whom such complaint is made, may, if he is satisfied that the complainant has reasonable grounds for his fears, requiresuch other person to enter into his own recognizances, or to give security, to keep the peace, and to be of good behaviour, for a term notexceeding twelve months. [17] The 1892 peace bond provision bears strong similarity to the modern day peace bond provisions, but like thecommon law peace bond, there was no requirement to hold a hearing.

Where a justice was satisfied that the “complainant” had areasonably founded fear, the justice could require the “other person” to enter into a recognizance to keep the peace and to be of goodbehaviour for a period not exceeding 12 months. [18] Regarding the procedural requirements of common law peace bonds, Chief Justice Lamer, writing in dissent inParks, cited a decision of the English Court of Appeal which noted: That is not to say that it would not be wise, and indeed courteous in these cases for justices to give such a warning; there certainly wouldbe absolutely no harm in a case like the present if the justices, returning to court, had announced they were going to acquit, but hadimmediately said “We are however contemplating a binding-over; what have you got to say?” I think it would be at least courteous andperhaps wise that that should be done, but I am unable to elevate the principle to the height at which it can be said that a failure to givesuch a warning is a breach of the rules of natural justice. [Emphasis in original; pp. 893-94, quoting R. v.

Woking Justices, Ex p.Gossage, [1973] 2 All E.R. 621 (Eng. C.A.), at p. 623.] [19] In the 1954 amendments to the Criminal Code, S.C. 1953-54, c. 51, the phrases “cause the parties to appear”,“evidenced adduced”, and reference to the court “before which the parties appear” were introduced into s. 717 (a predecessor of s. 810).These amendments resulted in a more procedurally robust peace bond scheme; one where a hearing was required so that the defendantcould have the opportunity to respond to the alleged fear and contest the peace bond.

As will be discussed below, I respectfully cannotaccept the conclusion of the Court of Appeal that the enactment of provisions which include the phrase “cause the parties to appear”(e.g., ss. 810(2) and 810.2(2)) are “special provisions to compel appearance”, or that their enactment created a unique “scheme fordealing with peace bond Informations” (para. 50) to compel the attendance of a defendant to a hearing.

Rather, the introduction of thewording most likely reflected the requirement that, before ordering a defendant to enter a recognizance, a judge must hold a hearing todetermine whether the informant’s fear is reasonably founded. [20] In addition to the general peace bond, based on fear of personal injury or damage to property (s. 810), Parliament hassince the early 1990’s added a number of specialized peace bonds respecting: fear of a criminal organization offence, including intimidation of a justice system participant or a journalist (s. 810.01); fear of a terrorism offence (s. 810.011 and s. 83.3)[1]; fear of anoffence related to forced marriage or child marriage (s. 810.02); fear of a sexual offence committed against a minor (s. 810.1); and fear ofserious personal injury (s. 810.2).

[ 21 ] Each of the peace bonds shares the following common features. [ 22 ] First, an Information may be laid by any person (the informant) where he or she has reasonable grounds to fear that another person (the defendant) will cause certain types of injury or damage to property, or commit certain types of offences.

As I will discuss below, in certain instances, the consent of the Attorney General is required to lay the Information (e.g., s. 810.2(1)). [ 23 ] Second, a judge (or justice of the peace in the case of a s. 810 peace bond) who receives an Information may “cause the parties to appear” and conduct a hearing on the merits of the application (e.g., s. 810.2(2)) [2] .

If satisfied by the evidence adduced at the hearing that the informant has reasonable grounds for his or her fear, the judge may order the defendant to enter a recognizance to keep the peace and be of good behaviour for a period not exceeding 12 months (e.g., s. 810.2(3)) [3] , and place additional conditions on the defendant as prescribed by statute (e.g., s. 810.2(4.1)). [ 24 ] Third, where a defendant fails or refuses to enter into a required recognizance, the judge may commit him or her to a term of imprisonment not exceeding 12 months (e.g., s. 810.2(4)). [ 25 ] Finally, s. 811 provides that a person who breaches a peace bond faces up to four years’ imprisonment where the charge proceeds by way of indictment and up to 18 months’ imprisonment where the charge proceeds by way of

summary conviction. C. Statutory Scheme [ 26 ] The officer who swore the Information against Mr. Penunsi did so under s. 810.2 , which reads: Where fear of serious personal injury offence 810.2

(1) Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as that expression is defined in

section 752, may, with the consent of the Attorney General, lay an information before a provincial court judge, whether or not the person or persons in respect of whom it is feared that the offence will be committed are named. Appearances

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge. Adjudication

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months. Duration extended

(3.1) However, if the provincial court judge is also satisfied that the defendant was convicted previously of an offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period that does not exceed two years. Refusal to enter into recognizance

(4) The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance. Conditions in recognizance

(4.1) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant

(

a) to participate in a treatment program; (

b) to wear an electronic monitoring device, if the Attorney General makes the request; (

c) to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge; (

d) to return to and remain at his or her place of residence at specified times; (

e) to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; (

f) 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 (

g) 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. Conditions — firearms

(5) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies. Surrender, etc.

(5.1) If the provincial court judge adds a condition described in subsection (5) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession should be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant should be surrendered. Reasons

(5.2) If the provincial court judge does not add a condition described in subsection (5) to a recognizance, the judge shall include in the record a statement of the reasons for not adding the condition. Condition — reporting

(6) The provincial court judge shall consider whether it is desirable to require the defendant to report to the correctional authority of a province or to an appropriate police authority. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance.

Variance of conditions

(7) A provincial court judge may, on application of the informant, of the Attorney General or of the defendant, vary the conditions fixedin the recognizance. Other provisions to apply (8) Subsections 810(4) and (5) apply, with such modifications as the circumstances require, to recognizances made under this section. While subs. (2) states that a provincial court judge “may cause the parties to appear”, there is no internal mechanism provided byParliament by which a judge could compel appearance of either party. The procedures for compelling attendance are found in

Part XVIof the Criminal Code. [27] Instead of reproducing the procedures of

Part XVI in the peace bond provisions, Parliament has chosen to apply therelevant provisions regarding compelling attendance to the peace bond scheme via a series of incorporating provisions. The draftingtechnique of incorporation by reference is “an economical one for Parliament to employ” (R. v. Cachine, 2001 BCCA 295, 154 C.C.C.(3d) 376, at para. 28). [28] Parliament has chosen a rather circuitous route to incorporate the necessary procedures to cause the parties to appear.

Each peace bond provision expressly incorporates s. 810(5), with the exception of one.[4] For example, s. 810.2(8) reads: Other provisions to apply (8) Subsections 810(4) and (5) apply, with such modifications as the circumstances require, to recognizances made under this section. Section 810(5) provides: Procedure

(5) The provisions of this Part apply, with such modifications as the circumstances require, to proceedings under this section. Section 810(5) incorporates all provisions of

Part XXVII, including s. 795, into peace bond proceedings.

Section 795 incorporatesprovisions of

Part XVI (“Compelling Appearance of Accused Before a Justice and Interim Release”) into

Part XXVII (“SummaryConvictions”): 795. The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice … in so far as theyare not inconsistent with this Part, apply, with any necessary modifications, to proceedings under this Part. [29] Together, ss. 810.2(8), 810(5), and 795 incorporate “[t]he provisions of Par[t] XVI . . . with respect to compellingappearance of an accused before a justice . . . in so far as they are not inconsistent with this Part . . . with any necessary modifications, toproceedings under this Part”. The relevant provisions of

Part XVI (“Compelling Appearance of Accused Before a Justice and InterimRelease”) will be discussed below. [30] Whether the arrest and JIR provisions apply to peace bond proceedings turns on the proper

interpretation of theincorporating language of s. 795: “in so far as they are not inconsistent with this Part” and “with any necessary modifications”, and thesimilar language “with such modifications as the circumstances require” in s. 810(5). Whether the modifications required for

Part XVI tooperate within the peace bond scheme are the type of modifications contemplated by Parliament has been the subject of judicial debate. D. Two Lines of Jurisprudence [31] There are two lines of authority falling on either side of the issue. One line of authority is based on two decisionsfrom the Ontario Court of Appeal (R. v. Allen (1985), (ON CA), 18 C.C.C. (3d) 155; Budreo C.A.). The Allen-Budreoline holds that the arrest and JIR provisions contained in

Part XVI apply to peace bond proceedings. In Allen, the court considered theincorporating provision (what is now s. 795) and held that the arrest provision (what is now s. 507) was applicable mutatis mutandis topeace bond proceedings. In R. v. Wakelin (1991), (SK CA), 71 C.C.C. (3d) 115, the Saskatchewan Court of Appealapplied the reasoning in Allen to conclude that if the power of arrest applies, “it would be anomalous if the judicial interim releaseprovisions did not apply” to peace bond proceedings (para. 16).

This line culminated in the Budreo C.A. case, which upheld theconstitutionality of the peace bond provided for by s. 810.1. The Allen-Budreo line was recently applied by the Yukon Territory Court ofAppeal in R. v. Nowazek, 2018 YKCA 12, 366 C.C.C. (3d) 389. I rely on Fitch J.A.’s

summary in Nowazek of the Ontario Court ofAppeal’s reasons in Budreo C.A.:

In Budreo, [the] defendant was a diagnosed paedophile who had just been released from prison after serving sentences for sexualoffences involving children. He refused to consent to the imposition of a recognizance under s. 810.1. The defendant attended courtvoluntarily on police instructions. On the same day, a police officer swore an information under s. 810.1 that she had reasonable groundsto fear the appellant would commit sexual offences against children.

The judge determined to issue process and concluded that thedefendant’s attendance in court to answer to the application should be compelled by an arrest warrant [notwithstanding that he wasalready there voluntarily]. The defendant was arrested outside the courtroom pursuant to a warrant issued under s. 507(4) of the Code.With the defendant now in custody, he was taken before the judge for a show cause hearing to determine whether he should be releasedon bail pending resolution of the s. 810.1 application.

The defendant eventually agreed to the release conditions sought by the Crownand the s. 810.1 hearing was adjourned to a date one week later. He then applied for a declaration that ss. 810.1 and 507(4) violated theCharter. The Court . . . concluded that s. 795 contemplates the modification of ss. 507 and 515 to apply to proceedings commenced by thelaying of an information under s. 810.1, even though a defendant to a s. 810.1 information is not “an accused charged with an offence”:paras. 59-62. The Court emphasized that s. 507(4) requires a justice to issue a summons whenever possible.

The judge may issue an arrest warrant onlywhere necessary in the public interest, which, in the s. 810.1 context, means where the defendant will not otherwise attend court or posesan imminent risk to the safety of children: para. 66. The Court also noted that, if an arrest warrant is issued and the defendant is broughtbefore a justice, s. 515 demands the release of the defendant without conditions unless the Crown can show cause for a more restrictiveorder.

The justice must exercise his or her discretion under s. 515 “judicially and bearing in mind the limited conditions that can beimposed following a successful s. 810.1 application”: para. 67. The Court found that the availability of pre-hearing detention in s. 515 did not render s. 810.1 overbroad, notwithstanding that detentionis more severe than any sanction available to the court at the conclusion of a successful s. 810.1 application (unless the defendant refusesto enter into the recognizance): . . .

Pre-trial arrest or even pre-hearing detention may be necessary to secure the defendant’s attendance at the hearing or to prevent harmto children pending a hearing because of a defendant’s unwillingness to comply with reasonable terms of release. In short, as I havealready said, pre-trial arrest and detention may be needed in some cases to ensure the integrity and viability of the s. 810.1 proceedingsthemselves. The Court emphasized that pre-hearing detention will only be justified in unusual circumstances in s. 810.1 proceedings.

It also pointedto s. 515(10), which circumscribes judicial discretion to order pre-hearing detention by setting out the circumstances in which detentionis justified. The British Columbia Court of Appeal followed the Allen-Budreo line in Cachine, and held that interim conditions may be imposed on apeace bond defendant who is arrested and brought before the court. [32] The second line of jurisprudence follows the decisions in R. v. Forrest (1983), (BC SC), 8 C.C.C.(3d) 444 (B.C.S.C.), and MacAusland.

The Forrest-MacAusland line holds that the JIR provisions do not apply to peace bonddefendants, and was preferred by the Court of Appeal in the instant case. In Forrest, the court concluded that the words “mutatismutandis” in the incorporating provision (language which has since been amended to read “with such modification as the circumstancesrequire”) could not be relied upon to convert a peace bond defendant into an accused charged with an offence. The court found that thiswas a “change in substance” and not a “change in points of detail” (p. 448).

However, Forrest was subsequently overruled by the BritishColumbia Court of Appeal and is no longer binding in that province (Cachine, at paras. 23-24). [33] Save for the decision of the Newfoundland and Labrador Court of Appeal in the instant case, MacAusland appears tobe the only decision of a superior or appeal court that is still “good law” holding that the JIR provisions cannot be applied to a peacebond defendant.

In MacAusland, Kelly J. concluded that as s. 810 creates no offence, the alterations necessary to apply the JIRprovisions to s. 810 were not merely technical; rather they “involve a change in the nature of s. 810 or s. 515” (paras. 27-28). Kelly J. alsoidentified a danger of “potential for abuse by informants with improper motives” (para. 30) where a defendant may be put on conditionsbefore reasonable grounds for any fear or apprehension is proven.

Finally, Kelly J. concluded: A scheme in which one is subject to a more severe penalty while awaiting determination than when the determination is actually madecreates, in my opinion, logical and legal inconsistency. [para. 33] This passage was cited with approval by the Court of Appeal in the instant case (para. 58). [34] For reasons I will explain, I agree with the Courts of Appeal in Allen, Wakelin, Budreo C.A., Cachine, and Nowazekinsofar as they found that the arrest and JIR provisions apply to peace bond proceedings.

That said, any interim measure should notsurpass the severity of outcomes following a final determination, except where necessary to preserve the integrity of the proceedings.

E.

Part XVI Applies to Peace Bond Proceedings [35] As mentioned above, ss. 810.2(8), 810(5), and 795 operate together to incorporate the provisions of

Part XVI (whichhouses, inter alia, the summons, arrest, and JIR provisions) into

Part XXVII (“Summary Convictions”) which houses, inter alia, thepeace bond provisions. The incorporating provision (s. 795) does not import

Part XVI wholesale, but rather limits its application: 795. The provisions of Parts XVI [“Compelling Appearance of Accused Before a Justice and Interim Release”] and XVIII [“Procedureon Preliminary Inquiry”] with respect to compelling the appearance of an accused before a justice, and the provisions of Parts XVIII.1,XX and XX.1, in so far as they are not inconsistent with this Part, apply, with any necessary modifications, to proceedings under thisPart. [36] Accordingly, whether

Part XVI applies to peace bond proceedings depends on the proper

interpretation of thestatutory language in the incorporating provision, s. 795. The

interpretation must be guided by the modern rule of statutory

interpretation,that “the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the schemeof the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1S.C.R. 27, at para. 21, citing E. A.

Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Bell ExpressVu Limited Partnership v.Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26). [37] Provision for the peace bond at issue in this appeal was passed by Parliament in an omnibus Bill (Bill C-55, An Actto amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisonsand Reformatories Act and the Department of the Solicitor General Act, 2nd Sess., 35th Parl., 1996-1997) aimed at protecting societyfrom individuals who are considered “high risk” to reoffend.

In the same Bill, changes were made to parole eligibility for dangerousoffenders, and to provide for increased supervision of long-term offenders. Several of the other peace bond provisions are aimed atprotecting vulnerable groups including children at risk of sexual offences (s. 810.1), and children at risk of forced marriage or removalfrom the country (s. 810.02). The general peace bond (s. 810) is an important tool used to protect women leaving abusive relationships(see, e.g., P. M. Neumann, “Peace Bonds: Preventive Justice? Or Preventing Justice?” (1994), 3 Dal. J. Leg. Stud. 171; S.

Gauthier,“L’engagement de ne pas troubler l’ordre public dans les causes de violence conjugale ayant fait l’objet d’un abandon des poursuitesjudiciaires criminelles (art. 810 C.CR.)” (2011), 23 C.J.W.L. 548, at pp. 548-78; L. M. Tutty and J. Koshan, “Calgary’s SpecializedDomestic Violence Court: An Evaluation of a Unique Model” (2013), 50 Alta. L. Rev. 731; C. L. Chewter, “Violence Against Womenand Children: Some Legal Issues” (2003), 20 Can. J. Fam.

L. 99). [38] Then J. in Budreo S.C. stated the policy rationale behind peace bonds: . . . where the reasonably certain commission of an offence can be prevented, it may be in the interest of the likely offender, his potentialvictim and of society to prevent the offence.

This is particularly true when the preventive measures employed are less restrictive than thepunishment that might flow from a conviction. [p. 372] [39] It is against this backdrop of pressing policy objectives — the protection of vulnerable persons and the prevention ofviolent crime — that I undertake the interpretative exercise. (1) “With Respect to Compelling the Appearance of an Accused Before a Justice” [40]

Part XVI of the Criminal Code is entitled “Compelling Appearance of Accused Before a Justice and InterimRelease”. In Forrest, the British Columbia Supreme Court reasoned that the JIR provisions now under s. 515 were excluded from thescope of now s. 795 because although the latter

section refers to the provisions of Parts XVI and XVIII with respect to compelling theappearance of an accused before a justice, it does not refer to the provisions of

Part XVI with respect to judicial interim release. Therespondent relies on the

interpretation of s. 795 in Forrest to support his argument that Parliament did not intend for the JIR provisions toapply to peace bond proceedings. [41] The words “in respect of” were considered by Dickson J. (as he then was) to be “words of the widest possible scope”(Nowegijick v. The Queen, (SCC), [1983] 1 S.C.R. 29, at p. 39). The phrase “with respect to” in s. 795 is similarly broadand can be read to include the JIR provisions under s. 515, even though those provisions do not specifically authorize “compelling theappearance of an accused before a justice”.

While compelling appearance and judicial interim release are conceptually distinct, they areprocedurally inextricable. It would be unworkable if a defendant named in a peace bond Information could be arrested, but could not bereleased. Applying well-established principles of statutory

interpretation, courts favour an

interpretation of the statute that avoids absurdresults. Arrest and judicial interim release go hand in hand as components that form an overall scheme under

Part XVI. Accordingly, theJIR provisions under s. 515 are captured by s. 795 as provisions “with respect to” compelling the appearance of the defendant. (2) “In so Far as They Are Not Inconsistent With This Part” There Is No Mechanism to Compel Attendance in

Part XXVII [42] The Court of Appeal concluded that

Part XVI was inconsistent with peace bond proceedings because by includingthe language “cause the parties to appear” in s. 810.2(2), Parliament had created a unique scheme for compelling the attendance of adefendant: More importantly, Parliament’s enactment of special provisions to compel appearances on peace bond Informations — sections 810.2(2),810(2) and 810.1(2) — indicates that Parliament’s scheme for dealing with peace bond Informations is different from its schemerespecting Informations alleging criminal charges. Compelling appearances of accuseds and defendants in relation to criminal charges iseffected through the general provisions in

Part XVI of the Code. The language used in the peace bond sections is not only different, butunique; it does not appear in other parts of the Code. Simply put, Parliament legislated special and different provisions, in this casesection 810.2(2), to empower judges to compel the appearances of parties to peace bond Informations. It would not have been necessary

for Parliament to do so if

Part XVI applied by operation of

section 795 as the Crown argues. The special provisions show Parliament’s acknowledgement that a defendant to a peace bond Information is of a different character than a defendant to a criminal charge.

Part XVI applies to

Part XXVII only insofar as it is not inconsistent with it. The different provisions for compelling appearances regarding peace bond proceedings are an obvious inconsistency with the

Part XVI provisions for compelling appearances of accuseds and defendants. [para. 50] With respect, I do not agree that the provisions cited create a “scheme for dealing with peace bond Informations”. Nowhere in the peace bond provisions nor in any provision under

Part XXVII does the statute provide a mechanism by which to “cause the parties to appear”. In concluding that

Part XVI does not apply to peace bond proceedings, the Court of Appeal failed to explain how a provincial court judge can cause the defendant to appear. [ 43 ] The Court of Appeal wrote that “the intended, and practical, course of action is for a judge to be able to cause both the informant and defendant to appear at the same time by summonsing them to appear on the same date to move forward with the proceeding” (para. 49). The Court of Appeal did not identify an alternative provision in

Part XXVII of the Criminal Code that would enable a judge to issue a summons, or explain how a judge might otherwise summons the parties in law. As put by Fitch J.A. in Nowazek , the peace bond provisions are “silent on the mechanics through which that appearance is to be achieved” (para. 84). [ 44 ] It was argued before this Court that s. 788, which is within

Part XXVII, provides a process by which a judge may issue a summons.

Section 788 states: Information Commencement of proceedings 788

(1) Proceedings under this Part shall be commenced by laying an information in Form 2. One justice may act before the trial

(2) Notwithstanding any other law that requires an information to be laid before or to be tried by two or more justices , one justice may (

a) receive the information; (

b) issue a summons or warrant with respect to the information; and (

c) do all other things preliminary to the trial. [ 45 ] With respect, I fail to see how this provision provides support for the argument that

Part XVI does not apply to peace bond proceedings. Section 788(1) prescribes the Form to be used in laying an Information under

Part XXVII. In my view, s. 788(2) and the subsequent paragraphs do not empower a judge to issue a summons or a warrant with respect to a peace bond proceeding. Rather, s. 788(2) simply clarifies that where two or more justices are otherwise required by law to receive an Information, issue a summons or a warrant, or “do all other things preliminary to the trial”, one justice may act with respect to proceedings under this Part. [ 46 ] If s. 788(2) created a stand-alone power to issue a summons or a warrant, then it would be redundant in light of s. 795 which specifically incorporates into

Part XXVII the provisions of

Part XVI with respect to compelling appearance. Not only does s. 788 fail to provide a mechanism to cause the parties to appear, it provides further evidence that the power to summons and to issue a warrant for arrest, both of which appear under s. 507 in

Part XVI, are intended to apply to

Part XXVII. [ 47 ] Even if I were to accept that the arrest and JIR provisions do not apply to peace bond proceedings, a judge would still need to resort to

Part XVI in order to issue a summons (pursuant to s. 507(4)). Nowhere in

Part XXVII is the power granted to a judge to issue process to cause a defendant to appear. [ 48 ] The provisions of

Part XVI, with respect to compelling appearance, are not inconsistent with the peace bond provisions. To the contrary, they are necessary for the proper functioning of the scheme. Parliament would not have sought to create a scheme where a judge may hold a hearing to determine whether to order a defendant to enter into a recognizance to keep the peace, but make no provision whereby a judge can ensure the defendant attends the hearing. This would be an absurd outcome. The application of the JIR provisions flows from the power of arrest under s. 507 .

Where a defendant is arrested and detained, it follows that the judicial interim release scheme applies in order to release the defendant from custody. When applied with regard to the context and purpose of the peace bond scheme, the arrest and JIR provisions are a consistent and appropriate interim measure and necessary to the function and integrity of peace bond proceedings ( Budreo C.A. , at para. 46). (3) “With any Necessary Modifications”

[49] Prior to 1985, what are now ss. 795 and 810(5) both included the phrase “mutatis mutandis”. Following the 1985statute revision and consolidation, the language was changed to “with such modifications as the circumstances require” in the Englishversion of both provisions (in the French version, the language was changed to “compte tenu des adaptations de circonstance” and laterto “avec les adaptations nécessaires” in s. 795 and “compte tenu des adaptations de circonstance” in s. 810(5)).

As explained byProfessor Sullivan, there is a strong presumption against any change in the law following a revision, “because the purpose of a revision isto restate the law, not change it” (Sullivan on the Construction of Statutes (6th ed. 2014), at p. 741, citing Parrill v. Genge (1997), (NL CA), 148 Nfld. & P.E.I.R. 91 (C.A.), at paras. 40-42).

In 2011, the phrase “with such modifications as thecircumstances require” in s. 795 was amended to read “with any necessary modifications” (there were no changes to the French version).In recent years, Parliament has preferred the more concise phrase, which bears the same meaning (for example, the same amendmentwas made to the English version of s. 83.3(14) in 2013; see also Criminal Code, ss. 83.29(4) and 715.37(4)). Accordingly, the traditionalinterpretation of mutatis mutandis should inform the

interpretation of “with any necessary modifications”. [50] The definition of mutatis mutandis was recently articulated by this Court in Bessette v. British Columbia (AttorneyGeneral), 2019 SCC 31, [2019] 2 S.C.R. 535, meaning: . . . “[w]ith the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered whennecessary, as to names, offices, and the like” (Black’s Law Dictionary (6th ed. 1990), at p. 1019; see also the British ColumbiaInterpretation Act, s. 44 (“mutatis mutandis”) and Samograd v.

Collison (1995), (BC CA), 17 B.C.L.R. (3d) 51 (C.A.)).“[W]ith the necessary changes and so far as applicable” therefore cannot be stretched to mean “to the extent that another source of lawdoes not contradict the Criminal Code. [Emphasis in original; para. 69.] [51] The Court of Appeal held that the modifications to the statutory language required to apply the JIR provisions topeace bond proceedings extend beyond what is intended by mutatis mutandis, and would result in a substantive change that “wouldexpand the power of arrest to an extent heretofore unacceptable in our law” (para. 56), citing Hinds J. in Forrest: Here, the Crown is arguing that the provisions of s. 457 [now s. 515] can be applied through the use of the words “mutatis mutandis” toconvert a person not charged with anything — merely a person against whom proceedings have been initiated under s. 745 [now s. 810 to810.2] — into the position of “an accused who is charged with an offence”.

That is a change in substance and not “a change in points ofdetail”. In my view, the

interpretation of the words “mutatis mutandis” cannot be extended to embrace a change in substance of the typecontemplated in these proceedings. [para. 57 citing Forrest, at para. 17.] [52] Respectfully, I disagree. The necessary modifications do not put a peace bond defendant in the place of an accusedperson. Rather, they adapt the procedures for compelling attendance to a preventive justice context.

While this will be discussed ingreater depth below, I pause to stress that the powers of arrest and judicial interim release are a means of last resort, and will only beavailable where it is demonstrated on reasonable grounds that it is necessary in the public interest to issue a warrant. The default processis the issuance of a summons (s. 507(4)). [53] In my view, the necessary modifications when applying

Part XVI to peace bond proceedings would simply substitutethe appropriate variation of “defendant named in a peace bond Information” in place of any variation of “accused charged with anoffence”, in accordance with the grammar of the provision. In doing so, the definition of “accused” in s. 493 need not be altered. I agreewith the Court of Appeal that “a defendant to a peace bond proceeding is of an entirely different character than a defendant to a criminalcharge” (para. 56).

Instead of modifying the definition of an accused person, one need only modify the language in the relevantprovisions to the extent necessary to bring the text into accord with the context and purpose of the peace bond scheme. These and othersmall substitutions are required for the arrest and JIR provisions to operate harmoniously with the peace bond scheme.

For example, theprovision under which a peace bond Information is sworn must stand in for an Information sworn under s. 504 (the initiating process fora criminal proceeding) to trigger the summons and arrest powers in s. 507 in a peace bond proceeding. [54] To illustrate, I have indicated in brackets other necessary modifications to the text of s. 507 and s. 515.

Justice to hear informant and witnesses — public prosecutions 507(1) Subject to subsection 523(1.1), a justice who receives an information laid under [the applicable peace bond provision] by a peaceofficer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice undersection 505, shall, except if [a defendant named in a peace bond Information] has already been arrested with or without a warrant, (

a) hear and consider, ex parte, (

i) the allegations of the informant, and (ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and (

b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for thearrest of the [defendant named in a peace bond Information] to compel the [defendant] to attend before him or some other justice for thesame territorial division to answer to [the Information].

. . . Summons to be issued except in certain cases

(4) Where a justice considers that a case is made out for compelling [a defendant] to attend before him to answer to [ the Information ], he shall issue a summons to the [ defendant] unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the [ defendant] . . . .

Order of release 515(1) Subject to this section, where a [ defendant ] who is [named in a peace bond Information] is taken before a justice, the justice shall . . . order, in respect of that [ Information] , that the [ defendant ] be released on his giving an undertaking without conditions, unless the prosecutor [ or informant ], having been given a reasonable opportunity to do so, shows cause, in respect of [ a peace bond Information ], why the detention of the [ defendant ] in custody is justified or why an order under any other provision of this

section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular [ Information ] for which the [ defendant ] was taken before the justice. [ 55 ] The Ontario Court of Appeal in Budreo C.A. similarly found that applying provisions relating to a charge against an accused ( ss. 507 and 515) to a proceeding commenced by the laying of an Information (in that case, s. 810.1) is a “modification contemplated by s. 795 of the Code ” (para. 62).

See also Cachine , at paras. 23-24 ; Wakelin , at pp. 121-22. [ 56 ] I agree with the Courts of Appeal in Wakelin , Budreo C.A. and Cachine that the required modifications are points in detail that are contemplated by s. 795 of the Criminal Code , and do not amount to substantive change in the law. The necessary modifications provide a procedure to give effect to the phrase “cause the parties to appear” in s. 810.2(2). [ 57 ] The Court of Appeal in the instant case also looked to s. 507.1(9) to support its conclusion that

Part XVI was not intended to apply to peace bond proceedings.

Section 507.1 sets out additional procedures to be followed before a summons or a warrant is issued where the Information is laid by a member of the public (i.e., a private prosecution).

Section 507.1(9) provides that these procedures “do not apply in respect of an information laid under

section 810 or 810.1”.

Section 507.1(9), read in context, simply expresses an intention that the more onerous screening mechanism provided for in s. 507.1 does not apply to ss. 810 or 810.1 where an Information is sworn by a member of the public. I endorse the view of Fitch J.A. in Nowazek : the exclusion of certain peace bond provisions from the additional procedures of s. 507.1 has no bearing on the application of the arrest and JIR provisions to the peace bond scheme as a whole. He wrote: The enactment of s. 507.1(9) does nothing, in my view, to detract from the authoritativeness of Allen , Wakelin , and Budreo .

It appears that s. 507.1(9) simply exempts proceedings under ss. 810 and 810.1 from the additional safeguards for private prosecutions in s. 507.1, even where the s. 810 or 810.1 information is laid by a member of the public. Trotter J. (as he then was) reached the same result in R. v. Konjarski , 2015 ONSC 3999 (Ont. S.C.J.), at para. 6 : Proceedings under s. 810 are different from the more elaborate procedure under s. 507.1 …

Section 507.1 provides for a pre-enquete hearing before process may issue … However, this procedure does not apply to proceedings under s. 810 (see s. 507.1(9)). In my view, the enactment of s. 507.1(9) did not change the law in relation to compelling a defendant’s appearance in proceedings under s. 810.1. [para. 83] Without deciding the issue, the exclusion of ss. 810 and 810.1 from the procedures of s. 507.1 suggests that privately sworn Informations under these provisions proceed pursuant to s. 507 . At any rate, Parliament has contemplated and specifically excluded the application of certain procedures under

Part XVI to two specific peace bonds. This exclusion implies that Parliament intended

Part XVI to otherwise apply to peace bond proceedings. Had Parliament intended that

Part XVI have no application to the peace bond scheme, s. 507.1(9) would be unnecessary. [ 58 ] When the Honourable Allan Rock, Minister of Justice and Attorney General, introduced the Bill containing the peace bond provision in the instant case to the Standing Committee on Justice and Legal Affairs, he expressly referenced the Ontario Superior Court decision of Then J. in Budreo S.C. , which held that the JIR provisions apply to peace bond proceedings : After

section 810.1 was enacted, it was invoked in the case of a man named Wray Boudreo [ sic ].

Judgment in that case was rendered in January of this year and we took into account that judgment in preparing the provisions of section810.2 as they appear in Bill C-55. House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, No. 88, 2nd Sess., 35th Parl., December 3, 1996, at p.88:4 (Hon. Allan Rock) [59] Parliament is presumed to have knowledge of the prevailing case law (2747-3174 Québec Inc. v. Québec (Régie despermis d’alcool), (SCC), [1996] 3 S.C.R. 919, at para. 238).

In this case, the express reference and endorsement by theAttorney General of Then J.’s lengthy and detailed judgement in Budreo S.C. is evidence which, in my view, reinforces the view thatParliament intended the arrest and JIR provisions under

Part XVI to apply to peace bond proceedings. F. The Proper Application of

Part XVI to Peace Bond Proceedings [60] Having found that, via the incorporating provisions of ss. 810(5) and 795, the arrest and JIR provisions in

Part XVIapply to peace bond proceedings, I turn now to the proper

interpretation of these provisions in the context of peace bond proceedings.This

interpretation is informed by the context and purpose of peace bonds, and the competing interests of protecting public safety andsafeguarding the liberty of the defendant, who is not accused of any criminal offence. [61] As discussed above, the peace bond is an instrument of preventive justice, based on the reasonable fear of theinformant, rather than the guilt of the defendant. I agree with the respondent that though it is a valid expression of the criminal lawpower, the peace bond resembles to a certain extent a civil injunction (R.F., at para. 8). As noted by de Villiers Prov. Ct. J. in R. v.

Gill,[1991] B.C.J. No. 3255 (QL): It is true that the effect of a recognizance is to restrict the liberty of the defendant somewhat, but, as in the case of a civil injunction thatrestrains a defendant from committing a tort, that may also be a crime, the recognizance is not in its essence a restriction of lawfulactivity. [p. 6] Like a civil injunction, there is often a sense of urgency to have the matter heard and, where the fear is reasonably founded, to imposeconditions on the defendant by recognizance to protect the public.

Where a merits hearing is postponed because the defendant requestsan adjournment for counsel or there is some unavoidable delay, the very fear sworn to in the peace bond Information may gounaddressed in the interim. Adjournments can undermine the very purpose of the application (see Neumann, at p. 184). Ultimately, abalance must be struck between the right to liberty of a defendant to a peace bond Information, and the public protection concerns whichanimate these proceedings.

Thus, the application of the arrest and JIR provisions must be guided by the policy objectives of timely andeffective justice, and minimal impairment of liberty.

(1) A Justice May Cause the Parties to Appear [62] The initiating process of a peace bond application is the swearing of an Information before a provincial court judge(or justice of the peace in the case of a s. 810 peace bond) by an informant who has reasonable fear that certain offences will becommitted (see, e.g., s. 810.2(1)). Three of the peace bond provisions require the consent of the Attorney General (or his or her delegate)to lay an Information. Where the Attorney General considers the complaint to be unmeritorious, he or she may withhold their discretionand the process ends there.

Where the Attorney General consents (or where consent is not required), the justice who receives theInformation may cause the parties to appear. [63] When exercising the discretion whether to hold a hearing, the justice must consider whether the fear sworn to in theInformation is reasonably held. It was raised before this Court that the peace bond under s. 810.2 is a “tool . . . often used when anoffender is nearing their warrant expiry”, or shortly after an individual has completed a custodial sentence, as was the case with Mr.Penunsi himself (I.F., Attorney General of Ontario, at para. 13; see also R. v.

Schafer, 2018 YKTC 12, at paras. 38-39). Initiating a s.810.2 peace bond proceeding upon a person’s release from prison risks a further deprivation of liberty after the completion of a sentencealready determined to be proportionate. Without further evidence that the feared conduct will occur (for example, the existence of threatsor other violent conduct while in custody) a fear based solely on the offence for which a defendant is serving a sentence will not besufficient. A s. 810.2 peace bond ordered on that basis alone would be improper.

It would serve as a de facto probation order, not as aprospective tool of preventative justice. [64] Where the justice exercises his or her discretion to cause the parties to appear, he or she will proceed to

Part XVI ofthe Criminal Code.

Part XVI “creates a ladder of increasingly coercive measures” to compel appearance of a defendant before a court(Nowazek, at para. 58). At the low end of the ladder is a summons or an appearance notice issued by a peace officer (Form 9 of theCriminal Code). Higher up the ladder is arrest, and release by an officer in charge on an undertaking or recognizance (s. 499). Higherstill is detention and judicial interim release, which as I will explain, must be guided by this Court’s ruling in R. v. Antic, 2017 SCC 27,[2017] 1 S.C.R. 509 (s. 515). What follows is practical guidance on how and when these various procedures should apply with respect toa defendant named in a peace bond Information. (

a) Summons [65] The default process for compelling attendance is the issuance of a summons. Section 507(4) states (with thenecessary modifications) that a justice shall issue a summons unless he or she is satisfied, on the allegations or the evidence of theinformant, that there are reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of thedefendant. If an arrest warrant is issued and executed, s. 503 states that the person shall be “taken before a justice to be dealt withaccording to law”.

As discussed below, once the person is “taken before a justice”, s. 515 applies (Nowazek, at para. 61). [66] Where a defendant appears before a justice pursuant to a summons and the hearing is adjourned, the justice has nojurisdiction to impose interim conditions pending the merits hearing. I agree with Fitch J.A.’s

interpretation that

[a] summoned defendant is neither in custody nor “taken before a justice”. By contrast, the defendants in Allen, Wakelin, Budreo,and Cachine were arrested and, once taken before a justice, s. 515 governed their release pending the hearing of the Crown’s applicationfor a recognizance. (Nowazek, at para. 88; see also R. v. Goikhberg, 2014 QCCS 3891, at para. 85 ; R. v.

Hebert (1984), (NBCA), 54 N.B.R. (2d) 251 (C.A.).) [67] If new information comes to light after the issuance of a summons, including at the initial hearing, whichinformation raises concerns regarding the risk the defendant poses to the public or the likelihood of his or her attendance at theproceeding, an arrest warrant may be sought at that time. Once the defendant is arrested, the court will have jurisdiction to apply the JIRprovisions (see, e.g., Budreo C.A.).

However, there must be a material change to justify the need for arrest; the mere fact of anadjournment of the proceedings will not be sufficient to issue a warrant. The test for an issuance of a warrant under s. 507(4), andinterpreted in light of the unique context of the peace bond defendant, must still be met. (

b) Warrant for Arrest [68] Given the unique circumstances of the peace bond defendant as a person accused of no crime, it is the responsibilityof every justice system participant to guard against the deprivation of the defendant’s liberty unless absolutely necessary. In the words ofIacobucci J., writing in dissent: At the heart of a free and democratic society is the liberty of its subjects.

Liberty lost is never regained and can never be fullycompensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, mustplace the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty. (R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 47) [69] Where an Information is laid before a justice and he or she finds that there are “reasonable grounds to believe that itis necessary in the public interest”, he or she may issue a warrant for the defendant’s arrest.

This phrase must be interpreted in light ofthe context (where the subject is not suspected of having committed a criminal offence) and the purpose (to bring the subject forward to ahearing) of the provision operating within the peace bond scheme. I agree with the Courts of Appeal in Budreo C.A. and Nowazek thatinstances when it will be “necessary in the public interest” to issue an arrest warrant will be limited to cases in which

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