R. v. Mousseau, 2011 ONCJ 222

COURT FILE No.: Windsor Information No. 10-11180 DV Citation: R. v. Mousseau , 2011 ONCJ 222 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — WILLIAM MOUSSEAU Before Justice D.A. Fairgrieve RULING ON MOTION TO QUASH INFORMATION Reasons released on April 28, 2011 Russell W. Cornett and Jane M. Magri ....................................................................... for the Crown Gregory D.

Goulin ..................................................................... for the accused, William Mousseau FAIRGRIEVE J.: [ 1 ] The question of law that arises in this motion to quash a charge of “disobeying a court order,” contrary to s. 127(1) of the Criminal Code of Canada , is whether the offence created by that provision has any application to an allegation that a person violated a condition of a so-called “common law peace bond.” The charge sought to be quashed [ 2 ] The charge against Mr.

Mousseau alleges that he … on or about the 4 th day of February, 2010, at the Town of Lakeshore in the [Southwest] Region did without lawful excuse disobey the lawful order made by Justice DeMarco, to wit: An Order Pursuant to the Courts [ sic ] Common Law Preventative Justice Power: not to associate or communicate directly or indirectly with Janet Duggan, contrary to Criminal Code s. 127. After the Crown elected to proceed by

summary conviction, but prior to a plea being entered, Mr. Goulin, on behalf of his client, brought a motion to quash the charge on the basis that it disclosed no offence known to the law. The court order to which the charge relates [ 3 ] Both parties agreed to the filing as an exhibit on the motion a copy of the written order signed by Justice DeMarco, dated November 13, 2009, which is the court order that the defendant is charged under s. 127(1) with having disobeyed. The document also includes at the bottom a signed acknowledgement by Mr. Mousseau of his receipt and understanding of the order. Mr.

Goulin initially took some issue concerning the failure of the court clerk to fill in the appropriate blanks in the printed form that is evidently used by judges of the Ontario Court of Justice in Windsor for such purposes. Instead, the clerk, it appears, added in handwriting in the margin at the top beside Mr. Mousseau’s name “$500.00 w/o deposit” and “1 year.” It was acknowledged, however, that any formal defects in the written order, if that is what the spaces left blank amounted to, did not affect the question of the validity of the s. 127(1) charge, the only issue pursued on this motion.

The order, with the handwritten insertions indicated by quotation marks, reads as follows: “$500.00 w/o deposit” “(1 year)” William Mousseau (15 Sept 1951)” Respondent AN ORDER PURSUANT TO THE COURTS [ sic ] COMMON LAW PREVENTATIVE JUSTICE POWER WHEREAS the applicant [nowhere named] has requested the imposition of an order requiring the respondent to keep the peace and be of good behaviour pursuant to the Court’s Common Law preventative justice power;

AND WHEREAS the Court had heard evidence and allegations relevant thereto and submissions from the Applicant and the Respondent; AND WHEREAS the Respondent, having acknowledged sufficient of the allegations, consents to such an order and waives the hearing of future [ sic ] evidence herein and concedes that probable grounds exist for the granting of the order sought; AND WHEREAS the court has probable grounds to suspect future misbehaviour by the Respondent likely to give rise to breaches of the Queen’s Peace; THEREFORE this Court does order the Respondent to keep the peace and be of good behaviour generally (and especially towards _____) for a period of ___ year(

s) from the date of the making of this order. [blanks not filled in] ADDITIONALLY the Respondent shall abide by the following terms and conditions for the term of the Order “1. Not to associate or communicate directly or indirectly with Janet Duggan.” “2. Not to attend any premises where Janet Duggan may reside or be employed.” Order made [date stamp: November 13, 2009] At the Ontario Court of Justice, 200 Chatham Street East[,] Windsor, Ontario “(Signed) G.

DeMarco” Justice, Ontario Court of Justice The bottom of the form, signed by the defendant, reads as follows: Section 127(1) of the Criminal Code of Canada provides as follows: “Everyone 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 provide [ sic ] by law, guilty of an hybrid offence [ sic ] and liable to imprisonment for a term not exceeding two years.

I hereby acknowledge having read or having had read to me I understand this order and the terms hereof and receipt of a copy thereof, [ sic : wording and punctuation] “Friday, Nov 13 2009 [date stamp]” “(Signed) William Mousseau” Respondent [ 4 ] Also filed on the motion was a transcript of the proceedings that took place before Justice DeMarco on November 13, 2009.

On that date, Crown counsel indicated to the Court that instead of proceeding any further with the trial that had commenced earlier on Criminal Code charges of assault and possession of a firearm without a licence, both parties had agreed to a common law peace bond and a forfeiture order with respect to the weapon that had been seized. Justice DeMarco accepted the proposed resolution of the case and stated to the defendant as follows: … You will be bound over in common law … . . . [T]he peace bond will be for a period of one year.

There will be a recognizance that you are to enter in the sum of $500, no deposit, no surety; you are just signing a bond. The terms are that you are to keep the peace and be of good behaviour, not to associate or communicate directly or indirectly with Janet Duggan, and not to attend any premises where Janet Duggan may reside or be employed. Do you understand? William Mousseau: Yes. The relevant statutory provision [ 5 ] The relevant words of s. 127 of the Criminal Code provide as follows: 127.

(1) Everyone who, without lawful excuse, disobeys a lawful order made by a court of justice …, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) an offence punishable on

summary conviction. The position of the defence [ 6 ] Mr. Goulin, for the applicant, concedes that there was “a lawful order made by a court of justice,” within the meaning of s. 127(1), since Justice DeMarco had jurisdiction to order the peace bond and there was no basis for challenging its validity, even if

such collateral attacks were permitted at this stage (which they are not: see R. v. Domm (1996), (ON CA), 111 C.C.C.(3d) 449 (Ont. C.A.), leave to appeal to S.C.C. refused (1997), 114 C.C.C. (3d) vi). Moreover, the defence accepts that there is no“punishment or other mode of proceeding” provided by statute to which recourse could be made to enforce the order, which is what theauthorities have held s. 127(1) requires to bar a prosecution under the

section on the ground that “a punishment or other mode ofproceeding is expressly provided by law”: see R. v. Clement (1981), (SCC), 61 C.C.C. (2d) 449 at p. 457 (S.C.C.); R. v.Gibbons (2010), 2010 ONCA 77 , 251 C.C.C. (3d) 460 at pp. 470-71 (Ont. C.A.). Rather, Mr.

Goulin takes the position that thecommon law preventive justice jurisdiction that exists consists of the authority “to bind a person over to keep the peace.” By definition,he submitted, the power is limited to an order to enter a recognizance that, by its very nature, leaves as the only enforcement mechanism,in the event of a breach of one of its conditions, estreatment proceedings that could result in the payment or forfeiture of the amount ofthe recognizance.

It was also submitted by defence counsel that there had been full compliance with the order made by DeMarco J. since,it was agreed, the defendant signed the order, thereby entering into the recognizance or acknowledging the bond, as the court hadordered him to do. Further, Mr.

Goulin argued that the court order in question remained “an order for the payment of money,” expresslyexcluded by s. 127(1) from its operation, notwithstanding the fact that no deposit was required and that any eventual payment wascontingent on a violation of one of its conditions being established, presumably at a hearing held to determine whether that had occurredand whether such forfeiture was appropriate.

Since s. 127(1) has no application to the court order particularized in the charge, accordingto the defence, and the charge discloses no other offence known to the law, it was submitted that the information should be quashed. The position of the Crown [7] The submission made initially by Mr. Cornett, and then later by Ms. Magri after the defence had filed its material, wassimply that because Justice DeMarco made a lawful order prohibiting Mr.

Mousseau’s contact with the former complainant, which isspecified in the charge as the act alleged to have been committed by the defendant, and since no statute provides any punishment or othermode of procedure for a failure to comply with such a condition of a common law peace bond, the defendant’s alleged breach of thatcondition properly falls within the ambit of the offence created by s. 127(1). Ms.

Magri further argued that inasmuch as the defendantwas not required to pay any deposit and has never paid any money, it would be wrong to characterize the order made by DeMarco J. as“an order for the payment of money” to which the statutory provision does not apply. The position of the Crown is that since the chargevalidly alleges the specified Criminal Code offence, the motion to quash the information should be dismissed and a trial of the charge onits merits should proceed.

Analysis [8] Surprisingly, perhaps, given the long history of common law peace bonds and the frequency with which they areordered by courts in this Province, neither counsel was able to point to any binding authority that has explicitly decided the questionraised here. The case law concerning the enforcement of common law peace bonds appears to be limited to judgments from BritishColumbia expressing uncertainty about the available enforcement possibilities, conflicting decisions concerning the availability of s. 127from two provincial judges in Ontario and an obiter statement by a

summary conviction appeal judge in Brampton made in the course ofdeciding the quite different question of whether a peace bond was validly ordered in the circumstances of that case. [9] In R. v. Taylor, [2001] B.C.J. No. 1653 (Prov. Ct.) (QL), Stansfield A.C.J. considered an ex parte application by theCrown for directions as to what should be done about the alleged disregard by Taylor of the conditions of the common law peace bondby which he was bound.

In the course of deciding that it would be inappropriate to resolve any of the admitted ambiguities concerningthe enforcement of common law peace bonds on such an ex parte application, rather than waiting for an actual case in whichenforcement proceedings had been commenced, Stansfield A.C.J. referred to earlier cases in British Columbia that had expressed similaruncertainty. In R. v. McKay (B.C. Prov. Ct., August 9, 1979, unreported), Judge K.A.P.D. Smith declined to order a peace bond “becauseof concern as to its form and potential for enforcement.” In R. v. Service (B.C. Prov.

Ct., December 7, 1995, unreported), Judge Threlfallcontrasted the enforcement provisions of a s. 810 recognizance with those applicable to a common law peace bond, expressing theopinion that a refusal to enter into a common law peace bond (as opposed, presumably, to a failure to comply with its conditions after ithad been executed) would be punishable under s. 127, but Stansfield A.C.J. pointed out that Judge Threlfall neither cited any authorityfor that proposition nor referred to any instance where s. 127 had been used successfully to enforce a common law peace bond. [10] In the first of the Ontario judgments on point, R. v.

Squires, [1990] O.J. No. 1328 (Prov. Ct.) (QL), Cadsby J., sitting inToronto, held, after referring to R. v. White, ex parte Chohan, (BC SC), [1969] 1 C.C.C. 19 (B.C. S.C.), that thereremained at common law the power to bind over a person to be of good behaviour that supplemented the statutory authority to order arecognizance under s. 810 of the Criminal Code. Cadsby Prov. J. then went on, at p. 4, to state the following: I should note that a recognizance in common law is not, where there’s a breach, considered to be a criminal offence.

The only remedy in such a case would be for the Crown to take action to forfeit the amount of the recognizance. It should be noted both that Cadsby J. also gave no specific authority or reasons for his observation and that it was made in the context ofa case where he was simply deciding whether it would be appropriate to order the common law peace bond that the parties in that casehad recommended. [11] On the other hand, in R. v. Bak, [1998] O.J.

No. 1598 (C.J.) (QL), a trial of a charge under s. 127(1) that alleged the samekind of violation of a “no contact” condition of a common law peace bond that is alleged here, Wright J., sitting in Smiths Falls, seemedsatisfied that the Code

section had potential application to such an allegation. He held, however, that the proof of the offence required notmerely the filing of the recognizance or peace bond by which the accused was bound, which he suggested, at para. 14, “is not evidenceof an accused specifically being ordered to do anything, rather that he will forfeit a sum of money in breach of certain conditions,” butalso other evidence, by way of transcript or otherwise, of the making of an order that required the accused to comply with the conditionsof the bond. [12] At para. 7 of his reasons, Wright J. quoted with apparent approval the following passage from an

article by Robert C.Hunter, Q.C., “Common Law Peace Bonds: The Power of Justices of the Peace to Administer ‘Preventive Justice’” (1978), 1 C.R. (3d)

70 at p. 86: It is submitted that the salutary effect of the binding over and being placed on the bond is that the individual involved realizes that thelaw is taking an active part and is attempting to control his behaviour. It is submitted that in these circumstances there is a realapprehension of a breach of the law and a breach of the criminal law. Further, in the event that a defendant fails to live up to the terms of the binding over, then a charge under s. 116 [now s. 127] of theCriminal Code could be laid.

Although the author cited no authority for his opinion in that regard, Wright J. evidently agreed with it. [13] Wright J. also referred to the judgment of the Supreme Court of Canada in Clement, supra. In that case, the issue waswhether the availability of a superior court’s inherent jurisdiction to punish for contempt precluded the application of what is now s.127(1) of the Criminal Code to a violation of an order made by a superior court in the context of a matrimonial dispute.

Finding that theSupreme Court of Canada had directed that the provision of the Code should be construed in a liberal fashion, Wright J. quoted thefollowing passages from pp. 452 and 457 of the reasons given by Estey J.: There is nothing in the

section or any related provision of the Code to which the attention of the Court was drawn which would indicatethat the words “lawful order” should be given a restricted meaning and be made to apply only to an order made by a Court in aproceeding with reference to the Criminal Code, supra, or any other penal statute of Canada. The restriction “other than an order for thepayment of money” would appear to indicate that the order of the Court referred to in the opening words of the subsection includes anyCourt order, criminal or civil. . . .

By this line of reasoning I would construe the subsection as being available as the basis for a charge for disobedience of a lawful Courtorder whenever statute law (including Regulation) does not expressly provide a punishment or penalty or other mode of proceeding, andnot otherwise. … In all these circumstances, therefore, s. 116 may be invoked by the Attorney General for the lawful orders of the Courtof Queen’s Bench of Manitoba be those orders criminal or civil in nature. [14] Wright J. therefore found that a prosecution under s. 127 was available in addition to the payment or forfeiture of theamount of the recognizance, but he went on to hold, at para. 15, that since he could not take judicial notice of how such peace bonds arenormally ordered, the s. 127 offence had not been proved by the evidence called in the case. [15] It might be worth noting that Cadsby J.’s comments in Squires were apparently not brought to Wright J.’s attention, sothat neither party was specifically seeking consistency in the Court’s position on the issue.

Moreover, in assessing how persuasive thereasons given by Wright J. are to be regarded, it might be relevant to observe that the acquittal came in circumstances where, if s. 127(1)really was available, many other trial judges would have been sufficiently satisfied by the judge’s signature on the recognizance to haveconcluded that it could only have resulted from that judge’s order, rather than from some other unspecified, inherently unlikely source.Despite the dismissal of the charge in Bak for reasons that some might question, however, the judgment undoubtedly still supports theposition taken by the Crown in this case. [16] A similar comment suggesting the availability of s. 127(1) in such circumstances was made in the context of a

summaryconviction appeal by Durno J. in R. v. Musoni (2009), (ON SC), 243 C.C.C. (3d) 17 (Ont. S.C.J.), appeal dismissed(2009), 2009 ONCA 829 , 248 C.C.C. (3d) 487 (Ont. C.A.), leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 534. In thatcase, the issue to be considered concerned the sufficiency of the grounds that had led a provincial judge to order a common law peacebond.

In the course of deciding it, Durno J. also made wide-ranging observations concerning the use of common law peace bonds as asensible resolution to many criminal charges, as well as how they differed from recognizances under s. 810 of the Criminal Code and, atpara. 21, he stated his opinion concerning the availability of s. 127 to enforce a common law peace bond: … a s.810 peace bond has a specific provision for breach allegations pursuant to s. 811 which creates a hybrid offence of breaching apeace bond ordered under various Criminal Code sections.

Where the election is by indictment the maximum penalty is two years in jailand when prosecuted summarily the maximum penalty is six months. Where a common law peace bond is alleged to have been breachedthe prosecution is pursuant to s. 127 of the Criminal Code, for disobeying a court order which has the same penalty provisions as s. 811.

While Justice Durno’s statement clearly supports the Crown’s position here and, given his place in the judicial hierarchy, is entitled togreat deference, I think that it should nonetheless be regarded as obiter dictum, expressing an opinion for which no authority was given,made in the context of a

summary conviction appeal where the question of enforcement procedures in the event of a breach of a peacebond was not even remotely among the issues requiring consideration.

I should add that I am not overlooking the statement in the Courtof Appeal’s brief appeal book endorsement, supra at para. 3, “As to the merits of the appeal, we see no error in Justice Durno’s analysisor conclusion,” although I think it is apparent that the “merits of the appeal” concerned only the propriety of the common law peace bondthat had been ordered, not the extraneous opinion offered by Durno J. as to the consequences of a hypothetical violation of one of itsconditions. [17] Quite apart from the judicial decisions that touch explicitly on the issue, I think it should also be acknowledged that thereare varying practices in different parts of Ontario that apparently reflect conflicting opinions, likely judicial in origin, concerning theavailability of s. 127 to enforce the conditions of a common law peace bond.

Here in Windsor, as in Smiths Falls and perhaps elsewhereas well, a local practice has developed which appears to accept that s. 127 is applicable. In Windsor, there is even a pre-printed form, likethe one used in this case, that was obviously designed by someone, probably a provincial judge, specifically for the purpose. The formitself, which sets out the provisions of s. 127(1), presumably represents a considered view, more likely judicial rather than clerical innature, that the

section can be used to punish violations of conditions imposed by a court in the exercise of its common law preventive, orsometimes “preventative,” justice power. [18] While Windsor evidently has its own approach, it should be observed that in Toronto and, I assume, many other parts of

the Province, it is simply accepted that a common law peace bond is not enforceable by using s. 127(1) of the Criminal Code.

Whetherthe prevailing opinion in Toronto was adopted following Cadsby J.’s judgment or whether Cadsby J. was merely expressing what hadalready become the conventional wisdom at the time, the participants in the criminal justice system in Toronto have apparently longaccepted that although peace bonds have become a very common resolution of many criminal cases, their enforcement is limited toproceedings directed to the forfeiture or, more likely, since deposits are rarely required, payment in the first place, of the amount of thebond.

That in practice such proceedings seem never to be initiated does not, in my view, affect the issue of whether they provide the onlylegal remedy that is available. [19] In Toronto provincial courts, while orders for common law peace bonds have become routine occurrences, usuallyreflecting the minor nature of the original charges or the Crown’s difficulties of proof, a distinction is generally drawn between thosecases that are resolved immediately by the judge being asked to exercise his or her common law jurisdiction and those that are regardedas sufficiently serious, assuming the allegations come within the narrower parameters of s. 810, to justify the delay waiting for a policeofficer to go off to swear an information under s. 810 before a justice of the peace.

The s. 810 procedure, it seems, tends to be followedwhen the Crown perceives some future enforcement issue in relation to a specific complainant and wants to keep a potential prosecutionoption available to compel compliance with the peace bond and respond to any violation of its conditions. Common law peace bonds, bycontrast, are more commonly used in minor cases where no one foresees any compliance problems.

For present purposes, what issignificant is that it is simply assumed that the monetary consequences of a breach, perceived as the only available enforcementmechanism, is sufficient to secure the good conduct of the person so bound [20] Deciding whether the position adopted in Windsor or the one in Toronto is correct in law requires, I think, at least a briefexamination of the nature of the common law preventive justice power that has been recognized in the authorities. [21] It should first be acknowledged that this preventive justice power that remains available to any justice is quite anomalous.In Doyle v.

The Queen (1976), 29 C.C.C. (2d) at p. 177 (S.C.C.), Ritchie J., for a unanimous court, stated “that the careful and detailedprocedural directions contained in the Code are of necessity exhaustive,” and that he regarded “the powers of a magistrate or justiceacting under the Criminal Code as entirely statutory.” Despite that conclusion, the Supreme Court of Canada has more than oncerecognized that a magistrate or justice’s powers are not confined to those under the Criminal Code, but that he or she also retains thecommon law jurisdiction to “bind over a person to keep the peace.” In MacKenzie v.

Martin (1954), (SCC), 108 C.C.C.305 at pp. 313 (S.C.C.), Kerwin J. canvassed a number of old English cases and observed that “it is abundantly clear that for severalcenturies justices have bound by recognizances persons whose conduct they considered mischievous or suspicious,” and that noprovision of the Criminal Code interfered with the use of this common law preventive justice jurisdiction to “justify sureties for goodbehaviour being taken.” [22] More recently, in R. v.

Parks, (1992), (SCC), 75 C.C.C. (3d) 287 (S.C.C.), where the issue was whether ahomicide committed by a sleepwalking accused justified an acquittal on the basis of non-insane automatism, the Court also had occasionto comment on the issue of common law peace bonds.

After finding that the defence was indeed available and that the accused wasproperly acquitted, Lamer C.J.C. suggested, dissenting on the point at p. 299, that the acquitted accused should be sent back to the trialcourt to consider whether it would be appropriate to exercise the common law power to make an order to keep the peace vested in anyjudge or magistrate that, he said, has been recognized for centuries.

At p. 301, the Chief Justice went on to observe that “in thosesituations where an order is made, it should be complied with in the same way as any other order of the court.” The Chief Justice,however, with whom only Cory J. concurred, did not find it necessary to say anything about the process that would be available forenforcing such an order or what the consequences of non-compliance with one of its conditions might be. [23] The other judges who took

part in the Parks decision expressly agreed with the reasons given by Sopinka J. where, at p.313, while recognizing what he called the “common law preventative justice power,” he also observed that it has “significant limits.” Hestated as follows: This court has recognized the existence of a common law preventative justice power in addition to the specific statutory power to makean order to keep the peace pursuant to an information laid under what is now s. 810 of the Criminal Code, R.S.C. 1985, c.C-46;MacKenzie v. Martin [supra]. However, even at common law this power has significant limits.

In MacKenzie, Kerwin J. quoted fromBlackstone on the nature of the power [at p. 312 C.C.C.]: “This preventative justice consists in obliging those persons, whom there is probable grounds 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.” [Sopinka J.’s emphasis.] It is important, I think, that the majority of the Supreme Court pointed to the limited nature of the common law power and emphasized,with its acceptance of the reference to “finding pledges and securities,” that it is a narrow authority focused on a bond as the means ofsecuring a person’s future good behaviour. [24] It is equally significant, in my view, that when La Forest J. expressed his concerns about the enforcement of such orders,in reasons adopted by five other members of the Court, he stated the following at p. 312: Generally, there are two mechanisms for the enforcement of a traditional order to keep the peace.

First, any complainant who seeks anorder will return to court to complain of any breach of the peace. Thus the complainant acts as a watch-dog much like the plaintiff in acivil injunction action … A second enforcement mechanism is the imposition of a bond with a guarantee from some third person. This is the standard procedureunder the Magistrates’ Courts Act, 1980 (U.K.), c. 43, in England, where the courts require a surety to guarantee the recognizance: see Halsbury’s Laws of England, 4th ed., vol. 29, para. 444.

The surety is entitled to complain to the court if the principal has been or isabout to be in breach of the recognizance, and as such the surety becomes the court’s watchdog. Such an arrangement is feasible over ashort term, as the cost of the surety can reasonably be imposed upon the accused. …

[25] In identifying the “two mechanisms for the enforcement of a traditional order to keep the peace,” I think it is ofconsiderable significance that La Forest J. did not advert in any way to the potential use of s. 127(1) to support a charge under theCriminal Code.

If such a prosecution were indeed regarded as an available option, one would have expected, I am sure, that instead ofmerely commenting on the watch-dog role of a complainant or a surety and the rather cumbersome procedure of returning to the court tocomplain of a violation, La Forest J. would have referred simply to calling the police to report a crime that could be investigated andprosecuted in the usual way.

The absence of any such suggestion indicates, in my view, that he did not consider such a straightforwardenforcement mechanism to be available. [26] It is apparent, I think, that whoever designed the written Windsor order made a deliberate attempt to avoid the use of theword “bond” or “recognizance,” leaving no specific blank on the form for any amount of money to be inserted.

It appears that while itsdescription of itself as “an Order Pursuant to the Court’s Common Law Preventative Justice Power” was intended to track the languageused by Sopinka J. in Parks at p. 313, it ignored the remainder of Sopinka J.’s description of what was encompassed by the limited power“to bind a person over to keep the peace” by ordering him or her to enter into a recognizance.

Even if the form were intended to alter thenature of the common law preventive justice power, the clerk’s handwritten addition of “$500 without deposit,” accords with the wordsthat Justice DeMarco, according to the transcript, actually used: “[t]here will be a recognizance that you are to enter…” and “you are justsigning a bond,” which in turn corresponded precisely with the limited common law authority he was in a position to exercise. [27] It strikes me as well that if a violation of a condition of a common law peace bond was already a criminal offence under s.127(1), the enactment by Parliament of what is now s. 810 and the creation of the specific offence of breaching that recognizance in s.811 would have been unnecessary and redundant.

In Musoni, supra at paras. 20-21, Durno J. found that a s.810 recognizance is based onnarrower grounds, has a more limited scope and is subject to restrictions on its duration that do not apply to a common law peace bond: A peace bond can be obtained through an information sworn pursuant to s. 810 of the Criminal Code or relying on the common law torequire a person to enter a common law peace bond without reference to s. 810 of the Criminal Code. See: R. v. Shaben et al. (1972), (ON SC), 8 C.C.C. (2d) 422 [(Ont.

H.C.J.)]. … The differences in the application are that a s.810 peace bond is based on a sworn information while a common law peace bond generallyis not; a s. 810 bond can be for a period not to exceed 12 months while there is no maximum period for a common law peace bond; a s.810 bond is based on a more limited basis, that the complainant fears on reasonable grounds that another person will cause injury to himor her or to his or her spouse or common law partner or child or will damage his or her property.

A common law peace bond has a widerscope, a reasonable apprehended breach of the peace; and a s. 810 peace bond has a specific provision for breach allegations pursuant tos. 811 which creates a hybrid offence of breaching a peace bond ordered under various Criminal Code sections. … While Durno J. then went on, in the passage quoted earlier, to state that s. 127 of the Criminal Code was available for breaches of acommon law peace bond, in my respectful view, such an

interpretation would make ss. 810 and 811 completely unnecessary, since thosestatutory provisions would add nothing to the common law jurisdiction and prosecutorial enforcement that, according to Durno J., wasalready available. Since, however, “Parliament does not legislate without purpose” (see R. v. Arcand (2010), 2010 ABCA 363 ,264 C.C.C. (3d) 134 at para. 37 (Alta. C.A.)) and “[i]t is a well accepted principle of statutory

interpretation that no legislative provisionshould be interpreted so as to render it mere surplusage” (see R. v. Proulx (2000), 2000 SCC 5 , 140 C.C.C. (3d) 449 (S.C.C.),per Lamer C.J.C. at para. 28), it follows that the enactment of the presumably remedial provisions in ss. 810 and 811 must have beendirected at some identifiable legislative objective. Contrary to Durno J.’s conclusion, I think that the void that Parliament evidentlymeant to fill when it enacted s. 811 was the creation of a criminal offence for a breach of a recognizance that would not otherwise haveexisted.

If Durno J.’s observation concerning the availability of s. 127 to enforce common law peace bonds is accurate, sections 810 and811 would truly be rendered surplusage. In my view, however, far more compelling is the inference that Parliament perceived the needfor an additional enforcement mechanism, a prosecution under the Criminal Code, that was not available earlier. [28] It is also interesting to note that while s. 810(4) provides that a recognizance under that

section may be in Form 32, theform itself is framed in language that appears to limit the consequences of a breach to a monetary debt: “Be it remembered that on this day the persons named in the following

schedule personally came before me and severally acknowledgedthemselves to owe to Her Majesty the Queen the several amounts set opposite their respective names, namely, [Name(

s) and Amount(s)] “to be made and levied of their several goods and chattels, lands and tenements, respectively, to the use of Her Majesty the Queen, if thesaid [named person(s)] fails in any of the conditions hereunder written.” The s. 810 recognizance, then, itself declares that the consequence of a breach, “[failing] in any of the conditions,” will be the forfeitureto the Crown of the amounts pledged by those who entered into it.

While there may be the differences between a s.810 recognizance anda common law peace bond that Durno J. observed, it is difficult to see why the bond ordered using a justice’s common law jurisdictionshould be considered to have an altogether different character than the recognizance created by statute for use in more limitedcircumstances.

In my view, it is much more consistent with the words of the recognizance itself to regard it as subject to forfeiture orestreatment in the event of a default, rather than as a freestanding source of criminal liability for which a person could be prosecutedunder s. 127, in the same way that a breach of a s. 810 recognizance would not constitute a crime in the absence of the provisions of s.811 creating the specific offence. [29] The most convincing argument for regarding a common law peace bond as imposing a monetary liability rather thanproviding a basis for a criminal prosecution under s. 127, I think, reflects simply the nature of the common law power to bind a personover to keep the peace that developed over the centuries.

The phrase “bind over” is itself obviously an archaic one. Implicit, I think, inthe terminology is the notion of requiring a person to enter a bond. While Lamer C.J.C. recognized what he referred to in Parks, supra atp. 299, as the common law “binding-over” power, the English cases make it even more explicit that a bond is the essential product of theexercise of the power. For example, in the paper by Robert C. Hunter, Q.C., supra at p. 71, the author quoted from the judgment of BrayJ. in Lansbury v. Riley, [1914] 3 K.B. 229 at 233, where the common law preventive justice power was described in terms of taking

sufficient sureties by recognizance to require a person to keep the peace or be of good behaviour, and allowing a magistrate to send theparty to gaol only for not finding such sureties. Similarly, in R. v. Sandbach. ex parte Williams, [1935] All E.

R. 680 at 681 (K.B.),Avory, J. accepted that the scope of the preventive justice remedy was authoritatively stated in the passage from Blackstone that SopinkaJ. quoted in Parks, focusing on “finding pledges or securities.” Given that Humphreys, J. observed, at p. 682, that “it is too late in 1935 toattempt to show that Blackstone was wrong,” it is probably even more futile to attempt to do so in 2011. [30] While acknowledging the ambiguities, the Canadian cases have also tended to emphasize the monetary aspect of a peacebond. For example, in Service, supra, Threlfall Prov. Ct.

J. made the following statement (quoted by Stansfield A.C.J. in Taylor, supra atpara. 45): In both cases (s. 810 or a common law peace bond) it is open to the Crown to proceed civilly to recover the named amount in therecognizance. That, after all, is what a recognizance is all about. Similarly, in R. v. S., [1992] B.C.J. No. 738 at pp. 5-6 (Prov.

Ct.), Judge de Villiers held that a young person could neither be ordered toenter a s. 810 recognizance nor a common law peace bond because each creates “a contingent debt, which the cognisor and her sureties,if any, promise to pay if the contingency arises” and “a minor can no more bind herself by a bond than by a recognizance, and a suretyunder an unenforceable minor’s bond is no more liable to the minor’s creditor than a surety under a recognizance.” Judge de Villiersappeared to accept that the essential nature of a recognizance or bond is the debt it acknowledges, quoting at p. 5 of his reasonsdefinitions taken from other cases: "Recognizance is a bond of record testifying the recognizor to owe a certain sum of money to some other." R. v.

Glamorganshire JJ.(1890) 24 Q.B.D. 675, cited in Re R. v. Carvery (NS CA), [1925] 3 D.L.R. 414 (N.S.S.C. en banc). "A recognizance is the acknowledgment of a debt due to the King defeasible upon the happening of a certain event." R. v. Giles (NS CA), [1930] 3 D.L.R. 273 (N.S.S.C. en banc). "A recognizance acknowledged before a court or court officer acknowledges a duty to the Crown or court or pursuant to a statute andsuch acknowledgment is entered in the court records. A recognizance is an obligation or bond.

A bond relates specifically to theacknowledgment of a money debt whereas [a] recognizance can secure the performance of some act, including, inter alia, the payment ofmoney." Alberta Agricultural Development Corporation v. Tiny Tym's Poultry Ltd. (AB KB), [1989] 4 W.W.R. 626.(Alberta Q.B.D.) [31] Mr. Goulin also referred in his submissions to a number of legal dictionaries to demonstrate that a bond, presumably theintended product of the binding-over process, is monetary by nature and, when ordered by a court, constitutes “an order for the payment of money,” within the meaning of the s. 127(1) exception.

For example, in Daphne Dukelow, The Dictionary of Canadian Law (3rd ed.),“bond” is defined as “a written instrument under seal whereby the person executing it makes a promise or incurs a personal liability toanother” and “an agreement in writing by the guarantor under which the guarantor undertakes, upon the default of another person named in the agreement … to pay a sum of money…” In Black’s Law Dictionary (8th ed.), “bond” is also defined as a written document“containing a confession of a debt,” and “recognizance” is defined, inter alia, as “an in-court acknowledgment of an obligation in a penalsum, conditioned on the performance or non-performance of a particular act.” Viewed in this light, I think it is impossible to dissociatean order “binding over” a person from an order that he or she enter a “bond,” which, by definition, is the equivalent of an order to paymoney if a breach of a condition should occur. [32] Furthermore, if Parliament has not clearly disclosed its intention as to whether s. 127(1) of the Criminal Code shouldapply to a breach of a condition of a common law peace bond or whether an order to enter into such a bond amounts to “an order for thepayment of money” expressly excepted from the application of the provision, then I think that the customary rules governing theinterpretation of ambiguous penal statutes should apply.

In R. v. McIntosh (1995), (SCC), 95 C.C.C. (3d) 481 at para.39 (S.C.C.), Lamer C.J.C. stated as follows: …[The Criminal Code] is qualitatively different from most other legislative enactments because of its direct and potentially profoundimpact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach which is sensitive toliberty interests. Therefore, an ambiguous penal provision must be interpreted in the manner most favourable to accused persons, and inthe manner most likely to provide clarity and certainty in the criminal law. Similarly, in Marcotte v.

Deputy Attorney-General of Canada (1976), (SCC), 19 C.C.C. (2d) 257 at p. 262 (S.C.C.),Dickson J. also referred to the strict construction rule applicable to penal legislation: It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake.

No authority is needed for theproposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting theliberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced.If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, byimplication. [33] In my view, there are indeed “real ambiguities” and “doubts of substance” both as to whether “a lawful order made by acourt of justice” applies to an alleged violation of a condition of a common law peace bond and as to whether “an order for the paymentof money” accurately describes the order requiring a person to enter into such a bond.

While Sullivan and Driedger on the Construction of Statutes (4th ed., 2002), at p. 387, acknowledged that the strict construction rule can sometimes be difficult to reconcile with the liberaland purposeful

interpretation of remedial legislation directed by s. 12 of the

Interpretation Act, R.S.C. 1985, c. I-21, in the absence ofany other means of determining what Parliament intended by the use of such language in s. 127, it seems to me that the provision shouldbe construed in a way that interferes least with an accused’s liberty interests. According to another of Professor Sullivan’s books,Statutory

Interpretation (Irwin Law, 1997) at p.171, it is presumed that legislation is not intended to interfere with individual rights,whether at common law or by statute, and that any doubt concerning the application of legislation which interferes with such rightsshould be resolved in favour of the subject and the preservation of his liberty.

[ 34 ] Applying these principles to the

interpretation of s. 127(1), then, I think that it becomes impossible to conclude that the provision was intended to apply to a violation of a condition of a common law peace bond. The order made by Justice DeMarco, which required Mr. Mousseau to enter into a $500 recognizance, was precisely the “binding-over” order envisaged by the common law preventive justice power. The Crown does not dispute that there was full compliance with that order, given that the bond was entered into as the court directed. Moreover, I think that the only reasonable

interpretation, given the nature of a common law peace bond, is that it constituted an order for the payment of money, albeit only in the event of a default in complying with its conditions. Given the uncertainty as to whether potential imprisonment under s. 127(1) was meant to be available as an enforcement mechanism in addition to the monetary penalty provided by the bond itself, the strict construction of the penal provision leads to the conclusion that, in the absence of any clearer indication of Parliament’s intention, the

section was not meant to apply in such circumstances. [ 35 ] I accept the defence submission, then, both that an order to enter into a peace bond constitutes “an order for the payment of money,” and that once the person bound over by a judge has acknowledged the bond or recognizance in accordance with the order that was made, it cannot be said that the person “disobeyed” it, within the meaning of s. 127. I agree with the position taken by Cadsby J. in Squires, supra, that it is not a crime to breach a condition of a common law peace bond.

Rather, it is a regrettable event that opens the door to forfeiture proceedings. Disposition [ 36 ] With the greatest respect for those who hold a contrary view, and notwithstanding the undeniable appeal of a simpler, more straightforward means of enforcing the conditions of a common law peace bond, I am satisfied that s. 127(1) of the Criminal Code has no application in such circumstances. The charge must accordingly be quashed. Released: April 28, 2011 Signed: “Justice David A. Fairgrieve”