Most of the time, a peace bond is a gift to someone accused of a criminal offence. Other times it is a curse. Let’s explore what a peace bond is and what it means for an accused person who is presented with the option of resolving their criminal matter by accepting a peace bond.
What follows is legal information, not legal advice. It is not meant to be relied upon in making a legal decision. If you want legal advice, retain a criminal lawyer.
What is a peace bond?
A peace bond is, essentially, a contract between the accused person and the court in which the accused person promises to abide by certain conditions and not commit an offence for a period of time. Generally, a peace bond lasts for one year. The accused person will pledge a nominal amount of money, say $500 to $5000, for which they agree to be sued if they breach the peace bond during the time that it is in force.
If the peace bond is breached the accused person will receive an additional criminal charge. If convicted, they could be sentenced to jail.
There are two types of peace bonds with which accused persons are generally presented. One is issued under section 810 of the Criminal Code of Canada. If this peace bond is breached, the accused person receives the criminal charge of ‘failure to comply with a recognizance’. It is a serious criminal offence.
The second type of peace bond is issued by a judge under the common law. If this peace bond is breached, the accused person receives the criminal charge of ‘contempt of court’. This is an indictable offence, allowing the accused person to take the case to a preliminary inquiry and, ultimately, a jury trial in the Superior Court. Many defence lawyers prefer their clients to receive a common law peace bond because of the extra due process afforded under this charge. If a common law peace bond is breached trivially – for example, the accused person allegedly steals a candy bar while they are subject to the peace bond – there is a chance that the government will not think it worth the resources to prosecute. After all, is it a wise use of public resources to prosecute this person? Is it worth taking this person through a preliminary inquiry and Superior Court trial before a jury of 12 people? The cost of such a prosecution would amount to tens of thousands of dollars – your tax dollars. Conversely, if the person was subject to a peace bond under section 810 of the Criminal Code, the prosecution would be far more efficient.
What are the advantages of accepting a peace bond?
A peace bond does not generate a criminal record in Canada. It is a preventive measure, not a criminal disposition. A person subject to a peace bond is agreeing to be bound by conditions for a period of time because they agree the government has a concern with their behaviour that it wishes to prevent. Note the distinction: it is an agreement that the government has a concern, not necessarily an agreement that there is a concern.
A person who is accused of a trivial criminal offence, or an offence with a weak prosecution case, may be approached to accept a peace bond in exchange for the criminal charge’s withdrawal. The result is a win-win. The government allays public safety concerns by placing the accused person on conditions, and the accused person has their criminal matter ended without a finding of guilt or conviction.
What are the disadvantages of accepting a peace bond?
i. Potentially serious penal consequences
Accepting a peace bond will place the accused person on conditions for a period of time. If they breach the conditions or break the law in that period of time, they will receive an additional criminal charge. This charge is serious and may result in the accused person spending a night in jail awaiting a bail hearing and, worse, being denied bail. They will then sit in jail for many months awaiting trial.
ii. Travel to the United States
The United States does not issue peace bonds in its criminal justice system. If someone crosses the border into America while their peace bond is active, it will flash to the American border official. The border official may consider the peace bond to be an admission of guilt and, as a result, deny them entry into the United States. At the least, the border official may question them about the event that brought about the peace bond. I have written about the travel implications of criminal charges in my blog elsewhere. Check out that post for more information, or consult a criminal lawyer.
iii. Immigration consequences
This is a more technical discussion that makes sense if you have been ordered deported from Canada or are an immigration lawyer. If you are not a Canadian citizen and have been ordered deported, our immigration officials may consider the issuance of a peace bond as evidence that your deportation order should not be stayed. If you already have a stay on your deportation order, immigration officials may use the peace bond as evidence that your stay should be lifted. In other words, the peace bond may cause you to be deported from Canada. It is critical that you retain a criminal lawyer if you have a deportation order and are presented with an offer to resolve through a peace bond. A knowledgeable criminal lawyer will, through comments to the Court, mitigate as much as possible the potential negative immigration consequences that follow a peace bond.
iv. Civil consequences
A peace bond will severely harm the prospect of success for a malicious prosecution lawsuit. The accused person turned plaintiff will have to prove in civil court that the Prosecution (in Canada we refer to them as the Crown) sought a peace bond for the express purpose of undermining a claim for malicious prosecution. For more information, see Clayton Ruby’s article in Volume 32(7) of For the Defence Newsletter (available on Westlaw). Prior to 2007, a peace bond was even more devastating on a lawsuit for malicious prosecution. It disqualified a plaintiff entirely.
v. Record suspensions (pardons)
If you are found guilty of a criminal offence and have been of good behaviour for a five to seven years following your sentence, you may be eligible for a record suspension. Record suspensions used to be called pardons. The key to a record suspension is the requirement of ‘good behaviour’. The Parole Board of Canada will consider the allegations that led to a peace bond in determining whether an applicant has been of good behaviour. Despite the presumption of innocence, the Parole Board maybe consider the allegations true and use them to deny an application for a record suspension.
When is a peace bond offered?
I consider a peace bond to be a gift – generally. When offered to resolve a criminal proceeding, a peace bond provides certainty that the prosecution will end. In exchange, the accused person simply enters into a contract with the court to obey the law and abide by reasonable conditions. If a peace bond is offered for resolution, it is generally for the alleged offences of assault, sexual assault, theft, utter threat and, less commonly, criminal harassment.
The formal test for a peace bond under section 810 of the Criminal Code is “reasonable grounds to fear” that the person will cause personal injury to a class of persons. Common law peace bonds have a similar standard and can protect any person or property for which there is a fear of injury from the accused person.
Peace bonds can be issued by themselves outside of the criminal process. For instance, you could become subject to a peace bond without receiving a criminal charge. This is occurring more frequently in the context of terrorist suspects. Those types of instances are beyond the scope of this blog post, which is concerned with peace bonds offered to resolve criminal charges.
That’s it for my thoughts on peace bonds. If you have questions or comments, be sure to tweet me (see the bottom of the website for my twitter info) or send an email to chris@sewrattan.com. Future blog posts will cover the topics of record suspensions and bail, respectively.