)) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 3048

CITATION : R. v. Petre, 2013 ONSC 3048 COURT FILE NO.: 3/13 DATE: 20130528 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Respondent – and – STEFAN PETRE Appellant )) )) )) )) ) ) ) ) ) ) K. Walker, for the Crown Mr. Petre, self-represented HEARD: May 15, 2013 TROTTER J. [ 1 ] The common law peace bond is sometimes used as a safeguard to address criminal allegations that fall short of the mark.

When delivering the happy news of an acquittal, judges sometimes quell the jubilation by requiring the not guilty person to keep the peace and be of good behaviour and to abide by all sorts of other conditions. This judgment does not question the legitimacy of this venerable power of the courts. [1] Instead, it considers the procedural safeguards that must be respected when that power is exercised. [ 2 ] Mr. Petre was charged with assaulting his wife. In the context of a deteriorating marriage, a squabble developed over mounds of garbage and debris that had accumulated in the front yard of the matrimonial home.

Mr. Petre’s wife arranged for a garbage bin to be delivered to their home so that the garbage could be taken away. A short while after the bin was delivered, Mr. Petre and his wife got into an argument and a shoving match ensued. [ 3 ] Following a brief trial, at which Mr. Petre represented himself, the learned trial judge found Mr. Petre not guilty, largely based on the principle of de minimis . After providing brief reasons for this reasonable finding, the trial judge said: “Now, that does not end the matter.” He expressed concern about future interactions between Mr. Petre and his wife.

Without inviting submissions, the trial judge ordered Mr. Petre to enter into a common law peace bond to prevent contact between the two. The peace bond was to last 12 months and contained the specific conditions that Mr. Petre have no contact with his wife (except through counsel or in family court) and that he possess no firearms. It was in the amount of $500, with no deposit required. [ 4 ] As the trial judge was attempting to explain the conditions, the following exchange occurred: Mr. Petre: Can I say something? The Court: No. This time is my time to talk. After some further discussion, during which Mr.

Petre was attempting to understand the difference between the common law peace bond and the s. 810 peace bond that the Crown had offered by way of resolution prior to trial (and which Mr. Petre rejected), the following exchange took place: Mr. Petre: Can I refuse to sign or I have to sign? The Court: Only if you don’t want to go to jail? Mr. Petre: So if I don’t sign, I go to jail.

The Court: Because you’re in breach of the order, yes. [5] Not surprisingly, Mr. Petre signed the order. He now appeals, contending that the order should not have been made in thefirst place. In support of his appeal, Mr. Petre offers numerous reasons why the order was improper, reasons he was not allowed to tellthe trial judge. There may be some merit to these submissions. However, I allow the appeal solely on the basis that Mr.

Petre wasdenied the right to be heard before the order was made. [6] I start from the proposition that peace bonds, both at common law and those made under s. 810 of the Criminal Code, canhave serious implications for an individual. The impact of a peace bond was discussed in some detail in R. v. Musoni (2009), (ON SC), 243 C.C.C. (3d) 17 (Ont. S.C.J.), aff’d (2009), 2009 ONCA 829 , 248 C.C.C. (3d) 487 (Ont. C.A.),leave refused [2009] S.C.C.A. No. 534. Sitting as a

Summary Conviction Appeal Court judge in that case, Durno J. said (at p. 26): While peace bonds are often entered to resolve criminal charges, it is important to bear in mind that the entering of bond placesrestrictions on the liberty of the individual signing the bond. R. v. MacKenzie (1945), (ON CA), 85 C.C.C. 233 and R. v.Budreo (2000), (ON CA), 142 C.C.C. (3d) 225 (Ont. C.A.). Where there is an evidentiary basis for so doing, they areappropriate resolutions. However, it also has to be kept in mind that if there is a breach of the bond's conditions, the individual is liableto be prosecuted as noted above.

There can be criminal implications from entering peace bonds. Accordingly, while a very usefulalternative to criminal prosecutions, they should not be treated lightly. I also note that common law peace bonds may be enforceable through the offence of disobeying a court order, contrary to s. 127 of theCriminal Code, a hybrid offence that is punishable by up to two years’ imprisonment when proceeded with by way of indictment. [7] It would seem axiomatic that, before a liberty-depriving order of a criminal court is made, the person who will be affected bythe order is entitled to say something about it.

But there is Ontario authority that suggests otherwise. The case of Re Broomes and theQueen (1984), (ON SC), 12 C.C.C. (3d) 220 (Ont. H.C.) is sometimes referred to as authority for the proposition thatan accused person need not be given notice of the possibility of a peace bond being imposed at the end of the proceedings. As acorollary, if notice is not required, then submissions are not necessary either. Re Broomes is very similar to this case. At the end of atrial, the judge acquitted the accused, and then bound him over, without prior notice and without requesting submissions. Mr.

Broomessought to review the decision by way of certiorari. In dismissing the application, Steele J. said at p. 221: It was submitted to me that in accordance with the decision of Regina v. White ex parte Chohan, (BC SC), [1969] 1C.C.C. 19 a decision of a single judge of the British Columbia Supreme Court that the applicant had been denied natural justice in nothaving been warned before the order binding him to keep the peace was made that such an order could be contemplated. I disagree withthat decision. I accept the decision in R. v. Woking Justices, ex parte Gossage, [1973] 2 All E.R. 621 (Eng.

C.A.) at p. 623 where LordWidgery C.J. stated as follows: It seems to me that a very clear distinction is drawn between, on the one part, persons who come before the justices as witnesses, and onthe other, persons who come before the justices as defendants. Not only do the witnesses come with no expected prospect of beingsubjected to any kind of penalty, but also the witnesses as such, although they may speak in evidence, cannot represent themselvesthrough counsel and cannot call evidence on their own behalf.

By contrast, the defendant comes before the court knowing thatallegations are to be made against him, knowing that he can be represented if appropriate, and knowing that he can call evidence if hewishes. It seems to me that a rule which requires a witness to be warned of the possibility of a binding-over should not necessarily applyto a defendant in that different position.

I think from the extracts from Lord Parker CJ's judgment that I have read, Lord Parker CJ would have taken the same view; but, be thatas it may, it seems to me to be putting it far too high in the case of an acquitted defendant to say that it is a breach of the rules of naturaljustice not to give him an indication of the prospective binding-over before the binding-over is imposed.

That is not to say that it wouldnot be wise, and indeed courteous in these cases for justices to give such a warning; there certainly would be absolutely no harm in a caselike the present if the justices, returning to court, had announced they were going to acquit, but had immediately said "We are howevercontemplating a binding-over; what have you got to say?" I think it would be at least courteous and perhaps wise that that should bedone, but I am unable to elevate the principle to the height at which it can be said that a failure to give such a warning is a breach of therules of natural justice.

I would accordingly refuse the application. [8] With respect, the law has evolved since Re Broomes. Although that case was decided shortly after the Charter wasentrenched, the current Charter era demands much more in terms of procedural fairness in this context. [9] The common law peace bond was considered in R. v. Parks (1992), (SCC), 75 C.C.C. (3d) 287 (S.C.C.). The accused was charged with killing his mother-in-law. He was acquitted on the basis of non-insane automatism as a result ofsleepwalking.

In dismissing the Crown’s appeal, the court considered whether the circumstances called for a common law peace bond toprevent Mr. Parks from harming anyone else in the future. Ultimately, a majority of the court decided not to deal with the case in thismanner. [10] Dissenting on this point, Lamer C.J.C. expressed concerns that the accused would be released without any restrictions on hisliberty whatsoever. In the absence of a request by the Crown, he considered the appropriateness of a peace bond to manage the risk offurther harm.

The Chief Justice reproduced the passage quoted above from Re Broomes and concluded that authority existed to impose apeace bond after an acquittal. In the following passage (at p. 301), he touched on some of the procedural considerations at play: In appropriate cases of outright acquittals on grounds of automatism measures that would reinforce sleep hygiene and thereby providegreater safety for others should always be considered.

If the trial judge considers that making such an order would be in the interest ofthe public, he should so advise the parties and consider whatever evidence and submissions are tendered. In those situations where anorder is made, it should be complied with in the same way as any other order of the court. If conditions should be imposed on Mr. Parks they will restrict his liberty. It follows that the decision to impose such conditions and theterms of those conditions should not violate the rights guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms. However,

such a hearing is justified, as the sleepwalker has, although innocently, committed

an act of violence which resulted in the death of hismother-in-law… I would therefore refer this matter back to the trial judge so that he can hear the parties on this point and decide, upon the evidencebefore him, whether such an order is appropriate. If this proves to be the case, it will be up to the trial judge to determine the content ofthe order. [emphasis added] Other members of the Court did not agree with the Chief Justice on this issue, finding it impractical (LaForest J.) and unfair (Sopinka J.),especially given the passage of time (McLachlin J. (as she then was)).

Indeed, some members of the court questioned the propriety ofimposing such an order following an acquittal. Moreover, McLachlin J. said (at p. 315): Generally, courts do not grant remedies affecting the liberty of the subject unless they are asked to so by the Crown, which is chargedwith instituting such legal processes as it deems appropriate having regard to the public interest and fairness to the individual involved.

In the absence of an application by the Crown, I hesitate to remit the case for consideration of further measures against the accused. [emphasis added] [11] While a majority of the court rejected the propriety of a peace bond in the circumstances, it is clear that all eight judges[2]were concerned about the importance of procedural safeguards, given the deprivation of liberty involved with a common law peacebond.

It would appear that, at a minimum, an accused person has the right to make submissions and call evidence before a common lawpeace bond is imposed. [12] Since Parks, there has been growing support for the view that the failure to afford an individual an opportunity to makesubmissions or representations before a peace bond is imposed is a breach of the rules of natural justice: see R. v. Charles (1990), (SK KB), 61 C.C.C. (3d) 239 (Sask. Q.B.) and R. v. Lynch, 2001 BCSC 1426 , 2001 B.C.S.C. 1426 and R. v.Wells (2012), 252 C.R.R. (2d) 260 (Alta. Q.B.), at para. 23.

It is also likely a breach of s. 7 of the Charter. [13] There are many useful things that might be said in opposing the imposition of a peace bond, especially in the face of anacquittal. But to have any meaning at all, the accused person must be given an opportunity to respond and, in some cases, to callevidence. These procedural safeguards are easily delivered. They need not be elaborate or time-consuming.

If the accused person isself-represented, some explanation of the relevant procedure and the lower standard of proof might also be required. [14] In a case such as this one, an accused person may wish to resist the order based on the evidence adduced at trial. Submissionsmight be made about the potential for harassment or abuse that exists when a peace bond is imposed in the context of rancoroussocial/domestic situations. Moreover, an accused person might wish to make submissions about the propriety of ordering a peace bondwhen this had previously been the subject of resolution discussions.[3] [15] Mr.

Petre did not have an opportunity to contest the order that was made by the judge, acting proprio motu. He was forced toappeal in order to voice his objections. As Mr. Petre was denied the right to be heard, I quash the peace bond. Given that Mr. Petre hasbeen subject to this order for seven months, without incident, I decline to make any further order. [16] This decision has only dealt with the issue of the procedural safeguards that must accompany the imposition of a common lawpeace bond.

The other issues arising from Parks referred to above (i.e., the propriety of a peace bond following an acquittal andimposing a peace bond in the absence of a request by the Crown) are left for another day. [17] In concluding, I wish to acknowledge the fair manner in which Ms. Walker, for the Crown, approached this case. TROTTER J. Released: May 28, 2013 CITATION: R. v. Petre, 2013 ONSC 3048 COURT FILE NO.: 3/13 DATE: 20130528 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – STEFAN PETRE Appellant REASONS FOR JUDGMENT TROTTER J. Released: May 28, 2013