R v. Burke, 2012 NSSC 119

SUPREME COURT OF NOVA SCOTIA Citation: R v. Burke, 2012 NSSC 119 Date: 20120321 Docket: CRH 350482 Registry: Halifax Between: Her Majesty The Queen Provincial Crown v. Wayne J.C. Burke Accused Judge: The Honourable Justice Peter P. Rosinski Heard: March 21, 2012, in Halifax, Nova Scotia Counsel: Christopher C.

Harmes, for the Provincial Crown Thomas Singleton, for the Accused By the Court : Introduction [ 1 ] Can a Nova Scotia Supreme Court Judge order an accused to enter into a recognizance to keep the peace, and be restrained from contact / communication with specified individuals on the basis that an accused may cause a breach of the peace generally, or in relation to those specified individuals? [ 2 ] Mr. Burke was set for trial on an indictment alleging assaults against two individuals. The Crown and Mr. Burke’s counsel were able to resolve the matters without the necessity of a trial.

The Crown agreed that it would not proceed with the trial, if Mr. Burke entered into a recognizance to keep the peace and not have contact/communication with either of the two specified individuals. [ 3 ] I have been asked whether this court has the jurisdiction to make such an order.

Section 810 of the Criminal Code limits

[3] I have been asked whether this court has the jurisdiction to make such an order.

Section 810 of the Criminal Code limitsconsideration of such recognizances, so called “peace bonds”, to the bailiwick of a “justice” or a “summary conviction court”. “Justice”is defined in s. 2 Criminal Code to mean “a justice of the peace or provincial court judge”. While arguably a superior court hasjurisdiction to try even

summary conviction offences where counsel agree to a guilty plea for such offences [see s. 606(4) and 786(2)Criminal Code], I conclude that apart from such cases involving criminal “offences” only a justice of the peace or a provincial courtjudge have jurisdiction to hear applications for “peace bonds” under s. 810 Criminal Code. Therefore I must consider whether the NovaScotia Supreme Court has a common law jurisdiction to order an accused to enter into a similar recognizance.

Analysis [4] While I have not received briefs or exhaustively researched the issue, I note that there is authority for the view that evenjustices of the peace / provincial court judges (as statutory authorities) have a common law power to dispense “preventative justice” insimilar form to s. 810 Criminal Code recognizances - See the reasons of Rand, J., dissenting in the result, but concurring with Kerwin, J.for the Majority on the issue of jurisdiction in MacKenzie v. Martin (SCC), [1954] SCR 361; see also: Compton v. R (1978) (BC SC), 42 CCC (2d) 163 (BCSC) para. 4 per Verchere, J.; R v.

Musoni (2009) (ON SC), 243 CCC (3d) 17 (Ont. S.C.) per Durno, J. as affirmed 2009 ONCA 829 (leave toappeal dismissed [2009] SCCA 534); and in the context of EPOs (Emergency Protection Orders) see the comments of Orr, PCJ, in D.B. v. H.M. [2011] NJ No. 448 (QL). [5] The Nova Scotia Supreme Court’s “jurisdiction and power” are referred to in ss. 3 to 13 of the Judicature Act RSNS 1989 c.240 as amended. As to what is “jurisdiction” see the comments of the Court at para. 44 in Canada (Attorney General) v. TelezoneInc. 2010 SCC 62, Justice MacKeigan’s comments in Rohrer v.

Midland Doherty Ltd. (1985) (NS CA), 70 NSR (2d)234 (CA), and the comprehensive examination undertaken by Dean William H.

Charles, Q.C.: “Inherent jurisdiction and its applicationby Nova Scotia Courts: metaphysical historical or pragmatic?” (2010) 33 Dalhousie L.J. 63. [6] I conclude that this Court has the jurisdiction to dispense “preventative justice” by way of requiring an accused person toenter into a recognizance to keep the peace and be of good behaviour and to abstain from contact/communication with specifiedindividuals, where the accused has been given a fair opportunity to know and answer the allegations against them before the court, andthe court is satisfied, by the credible and trustworthy information or evidence it has received, that: “there is probable ground to suspect[such person] of future misbehaviour” [at p. 368 MacKenzie v.

Martin supra.]; or more modernly stated, there are reasonable grounds tobelieve that otherwise the accused may breach the peace in general or in relation to specified individuals. [paras. 34 and 52 Musoni (OntSC)]. [7] Any breaches thereof may constitute an offence contrary to s. 127 Criminal Code or contempt of court - R v. Clement (SCC), [1981] 2 SCR 468; at para. 22 Musoni (Ont. SC). [8] In a case such as the one at Bar, where an accused (represented by counsel) is consenting to the order and its conditions, theconcerns of fair process and proof are not generally problematic - para. 34 Musoni.

Nevertheless, the court should hear “somebackground to support the issuance” of such a recognizance - paras. 44 and 48 - 52 Musoni supra, per Durno, J. [9] I recognize that aggrieved persons usually present such matters in Provincial Court pursuant to s. 810 Criminal Code, and thatsuperior courts should not become involved or render assistance to inferior courts unless such is essential to avoid a serious injusticebecause the inferior courts are powerless to act, and where to do so would not contravene any statutory provision - R v. Caron 2011 SCC5.

[ 10 ] Moreover, I acknowledge that superior courts should exercise such jurisdiction “sparingly” and, as it is an exercise of discretion, should always take into account all the relevant circumstances including the positions of the parties.

Conclusion [ 11 ] It is likely, to my mind, that applications for s. 810 recognizances are subject to the 6 month limitation period in s. 786 (unless counsel agree otherwise under s. 786(2) ); and since the parties are presently properly before me, and have effectively presented the court with credible and trustworthy information and their “joint recommendation” regarding a fair and proper outcome of these criminal charges, I see no reason why I cannot, and should not, proceed as they suggest and grant an order requiring Mr. Burke to enter into a common law based recognizance. J.