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R. v. Mousseau, [2011] O.J. No.

1963
Ontario Judgments

Ontario Court of Justice


D.A. Fairgrieve J.
April 28, 2011.
Windsor Information No. 10-11180 DV
[2011] O.J. No. 1963 | 2011 ONCJ 222 | 273 C.C.C. (3d) 109 | 95 W.C.B. (2d) 592 |
2011 CarswellOnt 2828
Between Her Majesty the Queen, and William Mousseau

(36 paras.)
Case Summary

Criminal law — Criminal Code offences — Offences against the administration of law and
justice — Corruption and disobedience — Disobeying a court order — Application by
accused to quash Information against him as it disclosed no offence known at law
allowed — Violation of common law peace bond, contrary to s. 127 of Criminal Code,
disclosed no offence known at law — Common law peace bonds imposed monetary
liability only if there was a default in complying with their conditions — Such bonds were
not enforceable as a criminal prosecution under s. 127 — Criminal Code, ss. 127, 127(1).

Criminal law — Procedure — Information or indictment — Setting aside — Application by


accused to quash Information against him as it disclosed no offence known at law
allowed — Violation of common law peace bond, contrary to s. 127 of Criminal Code,
disclosed no offence known at law — Common law peace bonds imposed monetary
liability only if there was a default in complying with their conditions — Such bonds were
not enforceable as a criminal prosecution under s. 127 — Criminal Code, ss. 127, 127(1).

Criminal law — Recognizances and undertakings — Enforcement — Recognizance to


keep the peace or peace bond — Application by accused to quash Information against
him as it disclosed no offence known at law allowed — Violation of common law peace
bond, contrary to s. 127 of Criminal Code, disclosed no offence known at law — Common
law peace bonds imposed monetary liability only if there was a default in complying with
their conditions — Such bonds were not enforceable as a criminal prosecution under s.
127 — Criminal Code, ss. 127, 127(1).

Application by the accused Mousseau to quash the Information against him because it disclosed no offence
known at law. Mousseau was charged that he disobeyed a common law peace bond which required him not to
associate or to communicate in any manner with a woman named Duggan, contrary to s. 127 of the Criminal
Code. At issue was whether the offence created by s. 127(1) applied in this case. s. 127(1) provided that
everyone who, without lawful excuse, disobeyed a lawful court order, other than an order for the payment of
money, was guilty of either an indictable offence or an offence punishable on summary conviction.
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R. v. Mousseau, [2011] O.J. No. 1963

HELD: Application allowed.


Common law peace bonds were generally used in minor cases where no one anticipated any compliance
problems. Common law peace bonds imposed monetary liability only if there was a default in complying with
their conditions. They were not enforceable as a criminal prosecution under s. 127. If the violation of a common
law peace bond was a criminal offence under s. 127(1), the enactment of s. 810 of the Code, which provided for
a peace bond, and the creation of the specific offence of breaching that recognizance in s. 811 would have been
unnecessary and redundant. Since s. 127(1) did not apply the charge was quashed.

Statutes, Regulations and Rules Cited

Criminal Code, R.S.C. 1985, c. C-46, s. 127, s. 127(1), s. 810, s. 810(4), s. 811

Interpretation Act, R.S.C. 1985, c. I-21, s. 12

Counsel

Russell W. Cornett and Jane M. Magri, for the Crown.

Gregory D. Goulin, for the accused, William Mousseau.

MOTION TO QUASH INFORMATION

D.A. 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 4th 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.
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R. v. Mousseau, [2011] O.J. No. 1963

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."
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R. v. Mousseau, [2011] O.J. No. 1963

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.
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R. v. Mousseau, [2011] O.J. No. 1963

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), 111 C.C.C. (3d) 449
(Ont. C.A.), leave to appeal to S.C.C. refused (1997), [1997] S.C.C.A. No. 78). 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 the authorities have held s.
127(1) requires to bar a prosecution under the section on the ground that "a punishment or other
mode of proceeding is expressly provided by law": see R. v. Clement (1981), 61 C.C.C. (2d) 449
at p. 457 (S.C.C.); R. v. Gibbons (2010), 251 C.C.C. (3d) 460 at pp. 470-71 (Ont. C.A.). Rather,
Mr. Goulin takes the position that the common 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 of the 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 had ordered him to do. Further, Mr.
Goulin argued that the court order in question remained "an order for the payment of money,"
expressly excluded by s. 127(1) from its operation, notwithstanding the fact that no deposit was
required and that any eventual payment was contingent on a violation of one of its conditions
being established, presumably at a hearing held to determine whether that had occurred and
whether such forfeiture was appropriate. Since s. 127(1) has no application to the court order
particularized in the charge, according to 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, was simply that because Justice DeMarco made a lawful order prohibiting
Mr. Mousseau's contact with the former complainant, which is specified in the charge as the act
alleged to have been committed by the defendant, and since no statute provides any
punishment or other mode of procedure for a failure to comply with such a condition of a
common law peace bond, the defendant's alleged breach of that condition properly falls within
the ambit of the offence created by s. 127(1). Ms. Magri further argued that inasmuch as the
defendant was 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 charge
validly alleges the specified Criminal Code offence, the motion to quash the information should
be dismissed and a trial of the charge on its merits should proceed.

Analysis

8 Surprisingly, perhaps, given the long history of common law peace bonds and the frequency
with which they are ordered by courts in this Province, neither counsel was able to point to any
binding authority that has explicitly decided the question raised here. The case law concerning
the enforcement of common law peace bonds appears to be limited to judgments from British
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R. v. Mousseau, [2011] O.J. No. 1963

Columbia expressing uncertainty about the available enforcement possibilities, conflicting


decisions concerning the availability of s. 127 from two provincial judges in Ontario and an obiter
statement by a summary conviction appeal judge in Brampton made in the course of deciding
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 the Crown for directions as to what should be done about the alleged
disregard by Taylor of the conditions of the common law peace bond by which he was bound. In
the course of deciding that it would be inappropriate to resolve any of the admitted ambiguities
concerning the enforcement of common law peace bonds on such an ex parte application,
rather than waiting for an actual case in which enforcement proceedings had been commenced,
Stansfield A.C.J. referred to earlier cases in British Columbia that had expressed similar
uncertainty. In R. v. McKay (B.C. Prov. Ct., August 9, 1979, unreported), Judge K.A.P.D. Smith
declined to order a peace bond "because of concern as to its form and potential for
enforcement." In R. v. Service (B.C. Prov. Ct., December 7, 1995, unreported), Judge Threlfall
contrasted the enforcement provisions of a s. 810 recognizance with those applicable to a
common law peace bond, expressing the opinion that a refusal to enter into a common law
peace bond (as opposed, presumably, to a failure to comply with its conditions after it had been
executed) would be punishable under s. 127, but Stansfield A.C.J. pointed out that Judge
Threlfall neither cited any authority for 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 in Toronto, held, after referring to R. v. White, ex parte Chohan, [1969] 1
C.C.C. 19 (B.C. S.C.), that there remained at common law the power to bind over a person to be
of good behaviour that supplemented the statutory authority to order a recognizance 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 of a case where he was simply deciding whether
it would be appropriate to order the common law peace bond that the parties in that case had
recommended.

11 On the other hand, in R. v. Bak, [1996] O.J. No. 1598 (C.J.) (QL), a trial of a charge under s.
127(1) that alleged the same kind of violation of a "no contact" condition of a common law peace
bond that is alleged here, Wright J., sitting in Smiths Falls, seemed satisfied that the Code
section had potential application to such an allegation. He held, however, that the proof of the
offence required not merely the filing of the recognizance or peace bond by which the accused
was bound, which he suggested, at para. 14, "is not evidence of an accused specifically being
ordered to do anything, rather that he will forfeit a sum of money in breach of certain conditions,"
but also other evidence, by way of transcript or otherwise, of the making of an order that
required the accused to comply with the conditions of the bond.
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R. v. Mousseau, [2011] O.J. No. 1963

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 the law is taking an active part and is attempting
to control his behaviour. It is submitted that in these circumstances there is a real
apprehension 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 the Criminal 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 was whether 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 the Supreme Court of Canada had directed that the provision of the Code should be
construed in a liberal fashion, Wright J. quoted the following 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 indicate that the words "lawful order" should be
given a restricted meaning and be made to apply only to an order made by a Court in a
proceeding with reference to the Criminal Code, supra, or any other penal statute of
Canada. The restriction "other than an order for the payment of money" would appear to
indicate that the order of the Court referred to in the opening words of the subsection
includes any Court 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 Court order whenever statute law (including
Regulation) does not expressly provide a punishment or penalty or other mode of
proceeding, and not otherwise. ... In all these circumstances, therefore, s. 116 may be
invoked by the Attorney General for the lawful orders of the Court of 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 the amount 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 are normally 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, so that neither party was specifically seeking consistency in the Court's
position on the issue. Moreover, in assessing how persuasive the reasons given by Wright J. are
to be regarded, it might be relevant to observe that the acquittal came in circumstances where, if
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R. v. Mousseau, [2011] O.J. No. 1963

s. 127(1) really was available, many other trial judges would have been sufficiently satisfied by
the judge's signature on the recognizance to have concluded 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 the position 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 summary conviction appeal by Durno J. in R. v. Musoni (2009), 243 C.C.C.
(3d) 17 (Ont. S.C.J.), appeal dismissed (2009), 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 that case, the issue to be considered concerned
the sufficiency of the grounds that had led a provincial judge to order a common law peace
bond. In the course of deciding it, Durno J. also made wide-ranging observations concerning the
use of common law peace bonds as a sensible resolution to many criminal charges, as well as
how they differed from recognizances under s. 810 of the Criminal Code and, at para. 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 a peace bond ordered under various Criminal
Code sections. Where the election is by indictment the maximum penalty is two years in
jail and when prosecuted summarily the maximum penalty is six months. Where a
common law peace bond is alleged to have been breached the 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 to great 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 peace bond was not even remotely among the issues requiring
consideration. I should add that I am not overlooking the statement in the Court of 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 analysis or conclusion," although I think it is apparent that the "merits of the
appeal" concerned only the propriety of the common law peace bond that had been ordered, not
the extraneous opinion offered by Durno J. as to the consequences of a hypothetical violation of
one of its conditions.

17 Quite apart from the judicial decisions that touch explicitly on the issue, I think it should also
be acknowledged that there are varying practices in different parts of Ontario that apparently
reflect conflicting opinions, likely judicial in origin, concerning the availability of s. 127 to enforce
the conditions of a common law peace bond. Here in Windsor, as in Smiths Falls and perhaps
elsewhere as well, a local practice has developed which appears to accept that s. 127 is
applicable. In Windsor, there is even a pre-printed form, like the one used in this case, that was
obviously designed by someone, probably a provincial judge, specifically for the purpose. The
form itself, which sets out the provisions of s. 127(1), presumably represents a considered view,
more likely judicial rather than clerical in nature, that the section can be used to punish violations
of conditions imposed by a court in the exercise of its common law preventive, or sometimes
"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
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is not enforceable by using s. 127(1) of the Criminal Code. Whether the prevailing opinion in
Toronto was adopted following Cadsby J.'s judgment or whether Cadsby J. was merely
expressing what had already become the conventional wisdom at the time, the participants in
the criminal justice system in Toronto have apparently long accepted that although peace bonds
have become a very common resolution of many criminal cases, their enforcement is limited to
proceedings directed to the forfeiture or, more likely, since deposits are rarely required, payment
in the first place, of the amount of the bond. That in practice such proceedings seem never to be
initiated does not, in my view, affect the issue of whether they provide the only legal remedy that
is available.

19 In Toronto provincial courts, while orders for common law peace bonds have become routine
occurrences, usually reflecting the minor nature of the original charges or the Crown's difficulties
of proof, a distinction is generally drawn between those cases that are resolved immediately by
the judge being asked to exercise his or her common law jurisdiction and those that are
regarded as sufficiently serious, assuming the allegations come within the narrower parameters
of s. 810, to justify the delay waiting for a police officer 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 followed when the
Crown perceives some future enforcement issue in relation to a specific complainant and wants
to keep a potential prosecution option available to compel compliance with the peace bond and
respond to any violation of its conditions. Common law peace bonds, by contrast, are more
commonly used in minor cases where no one foresees any compliance problems. For present
purposes, what is significant is that it is simply assumed that the monetary consequences of a
breach, perceived as the only available enforcement mechanism, 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 brief examination 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) 177 (S.C.C.),
Ritchie J., for a unanimous court, stated "that the careful and detailed procedural directions
contained in the Code are of necessity exhaustive," and that he regarded "the powers of a
magistrate or justice acting under the Criminal Code as entirely statutory." Despite that
conclusion, the Supreme Court of Canada has more than once recognized that a magistrate or
justice's powers are not confined to those under the Criminal Code, but that he or she also
retains the common law jurisdiction to "bind over a person to keep the peace." In MacKenzie v.
Martin (1954), 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 several centuries justices have bound by
recognizances persons whose conduct they considered mischievous or suspicious," and that no
provision of the Criminal Code interfered with the use of this common law preventive justice
jurisdiction to "justify sureties for good behaviour being taken."

22 More recently, in R. v. Parks, (1992), 75 C.C.C. (3d) 287 (S.C.C.), where the issue was
whether a homicide committed by a sleepwalking accused justified an acquittal on the basis of
non-insane automatism, the Court also had occasion to comment on the issue of common law
peace bonds. After finding that the defence was indeed available and that the accused was
properly acquitted, Lamer C.J.C. suggested, dissenting on the point at p. 299, that the acquitted
accused should be sent back to the trial court to consider whether it would be appropriate to
exercise the common law power to make an order to keep the peace vested in any judge or
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magistrate that, he said, has been recognized for centuries. At p. 301, the Chief Justice went on
to observe that "in those situations 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 for
enforcing 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." He stated as follows:

This court has recognized the existence of a common law preventative justice power in
addition to the specific statutory power to make an 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 from Blackstone 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, to stipulate with and to give full assurance
to the public, that such offence as is apprehended shall not happen; by finding
pledges or securities 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 of securing 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 an order 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 a civil injunction action ...
A second enforcement mechanism is the imposition of a bond with a guarantee from
some third person. This is the standard procedure under 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 is about to be in breach of the
recognizance, and as such the surety becomes the court's watchdog. Such an
arrangement is feasible over a short 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 of considerable significance that La Forest J. did not advert in any way to the
potential use of s. 127(1) to support a charge under the Criminal Code. If such a prosecution
were indeed regarded as an available option, one would have expected, I am sure, that instead
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of merely commenting on the watch-dog role of a complainant or a surety and the rather
cumbersome procedure of returning to the court to complain of a violation, La Forest J. would
have referred simply to calling the police to report a crime that could be investigated and
prosecuted in the usual way. The absence of any such suggestion indicates, in my view, that he
did not consider such a straightforward enforcement 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 the word "bond" or "recognizance," leaving no specific blank on the
form for any amount of money to be inserted. It appears that while its description of itself as "an
Order Pursuant to the Court's Common Law Preventative Justice Power" was intended to track
the language used 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 the nature of the common law preventive justice power, the clerk's handwritten addition of
"$500 without deposit," accords with the words that Justice DeMarco, according to the transcript,
actually used: "[t]here will be a recognizance that you are to enter ..." and "you are just signing 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 on narrower 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 to require 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), 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 generally is 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 him or 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 wider scope, a reasonable apprehended breach of the peace; and a s.
810 peace bond has a specific provision for breach allegations pursuant to s. 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 a common law peace bond, in my respectful view, such an
interpretation would make ss. 810 and 811 completely unnecessary, since those statutory
provisions would add nothing to the common law jurisdiction and prosecutorial enforcement that,
according to Durno J., was already available. Since, however, "Parliament does not legislate
without purpose" (see R. v. Arcand (2010), 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 provision should be
interpreted so as to render it mere surplusage" (see R. v. Proulx (2000), 140 C.C.C. (3d) 449
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(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 been directed at some identifiable legislative objective.
Contrary to Durno J.'s conclusion, I think that the void that Parliament evidently meant to fill
when it enacted s. 811 was the creation of a criminal offence for a breach of a recognizance that
would not otherwise have existed. If Durno J.'s observation concerning the availability of s. 127
to enforce common law peace bonds is accurate, sections 810 and 811 would truly be rendered
surplusage. In my view, however, far more compelling is the inference that Parliament perceived
the need for 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, the form 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 acknowledged themselves 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 the said [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 forfeiture to the Crown of the amounts pledged by those who
entered into it. While there may be the differences between a s. 810 recognizance and a
common law peace bond that Durno J. observed, it is difficult to see why the bond ordered using
a justice's common law jurisdiction should be considered to have an altogether different
character than the recognizance created by statute for use in more limited circumstances. In my
view, it is much more consistent with the words of the recognizance itself to regard it as subject
to forfeiture or estreatment in the event of a default, rather than as a freestanding source of
criminal liability for which a person could be prosecuted under 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 than providing a basis for a criminal prosecution under s. 127, I think,
reflects simply the nature of the common law power to bind a person over to keep the peace that
developed over the centuries. The phrase "bind over" is itself obviously an archaic one. Implicit,
I think, in the 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 at p. 299, as the common law "binding-over"
power, the English cases make it even more explicit that a bond is the essential product of the
exercise 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 Bray J. 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 the party 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 Sopinka J. quoted in Parks, focusing on "finding pledges or securities." Given
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that Humphreys, J. observed, at p. 682, that "it is too late in 1935 to attempt 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 peace bond. For example, in Service, supra, Threlfall Prov. Ct. J.
made the following statement (quoted by Stansfield A.C.J. in Taylor, supra at para. 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 the recognizance. 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 to enter 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 surety under an unenforceable minor's bond is no more liable to the
minor's creditor than a surety under a recognizance." Judge de Villiers appeared to accept that
the essential nature of a recognizance or bond is the debt it acknowledges, quoting at p. 5 of his
reasons definitions 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 [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 [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 and such acknowledgment is entered in the court
records. A recognizance is an obligation or bond. A bond relates specifically to the
acknowledgment of a money debt whereas [a] recognizance can secure the performance
of some act, including, inter alia, the payment of money." Alberta Agricultural
Development Corporation v. Tiny Tym's Poultry Ltd. [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 the intended 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 to another" 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 penal
sum, conditioned on the performance or non-performance of a particular act." Viewed in this
light, I think it is impossible to dissociate an 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 pay money 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
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R. v. Mousseau, [2011] O.J. No. 1963

the Criminal Code should apply 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 the payment of money"
expressly excepted from the application of the provision, then I think that the customary rules
governing the interpretation of ambiguous penal statutes should apply. In R. v. McIntosh (1995),
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 profound impact on the personal liberty of citizens.
The special nature of the Criminal Code requires an interpretive approach which is
sensitive to liberty interests. Therefore, an ambiguous penal provision must be interpreted
in the manner most favourable to accused persons, and in the manner most likely to
provide clarity and certainty in the criminal law.

Similarly, in Marcotte v. Deputy Attorney-General of Canada (1976), 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 the proposition that if real ambiguities are found, or
doubts of substance arise, in the construction and application of a statute affecting the
liberty 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,
by implication.

33 In my view, there are indeed "real ambiguities" and "doubts of substance" both as to whether
"a lawful order made by a court of justice" applies to an alleged violation of a condition of a
common law peace bond and as to whether "an order for the payment of 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 liberal and purposeful interpretation of
remedial legislation directed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, in the
absence of any other means of determining what Parliament intended by the use of such
language in s. 127, it seems to me that the provision should be 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 rights should 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
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R. v. Mousseau, [2011] O.J. No. 1963

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.

D.A. FAIRGRIEVE J.

End of Document