Preventative Justice and Keeping the Peace: R v Penunsi Clarifies Rules around Arrest and Bail in Peace Bond Proceedings

Under most provisions of the Criminal Code, an individual comes under the purview of the criminal justice system when they are charged with a criminal offence that is alleged to have occurred in the past.  Yet under section 810 of the Criminal Code, individuals subject to Peace Bonds are bound to abide by strict conditions with significant penalties for fear that they will cause harm to someone else in the future.   

Peace Bonds are not criminal offences, but rather recognizances that individuals enter into with the Crown to “keep the peace and be of good behaviour” (Criminal Code, RSC 1985 c C-46, s. 810(3)) [Criminal Code]. They are given by judges who are reasonably satisfied that an informant – either a police officer or a private citizen – has “reasonable grounds to fear the defendant will cause harm to another person” (R v Penunsi, para 1). Peace Bonds may include various conditions ranging from as serious as remaining away from certain people or locations and agreeing to complete treatment, to as minor as keeping a curfew or submitting to regular drug testing. Failing to abide by the conditions of the Peace Bond can result in incarceration.

In R v Penunsi, 2019 SCC 39 [Penunsi], the Supreme Court of Canada (“SCC”) determined whether the statutory schemes in the Criminal Code for arrest, pretrial detention, and bail apply to someone who is summoned to court to respond to an Information for a Peace Bond, which is the document that alleges that the person swearing the Information has reason to believe the individual named in the Information will cause harm to another. The majority decision, written by Justice Rowe, held that Peace Bonds are included in these statutory schemes. The implication of the Penunsi decision is that judges may issue arrest warrants and hold an individual in custody while they await a hearing on the merits of the Information for a Peace Bond.

Facts and Case History

Mr. Penunsi was serving a custodial sentence for violation of a previous Peace Bond and was approaching his release date. Fearing that he would commit a violent offence upon his release, the police wanted him to enter into another Peace Bond to protect the public upon Mr. Penunsi’s release into the community.

While he was still incarcerated, Mr. Penunsi was brought before a court as a result of the Information, and the matter was adjourned so that Mr. Penunsi would be able to respond to the allegation. Fearing that in the interim period after his release that Mr. Penunsi would commit a violent offence before being bound by the conditions of a Peace Bond, the Crown argued that he should be detained in custody pending the hearing for the Peace Bond. The Provincial Court judge denied this request, claiming that they lacked the jurisdiction to issue an arrest warrant to compel Mr. Penunsi to attend the hearing because he was not charged with a criminal offence.

The Crown appealed to the Newfoundland and Labrador Supreme Court. The Crown argued that the provisions about arrest and bail in the Criminal Code applied to Peace Bonds as well as charges under other sections, meaning the Crown was entitled to argue before a judge that Mr. Penunsi should be detained pending the hearing. The Newfoundland and Labrador Supreme Court granted declaratory relief and stated that a Provincial Court judge did have jurisdiction to issue an arrest warrant to a defendant in a Peace Bond proceeding to ensure their attendance at the hearing.

The case then was appealed to the Newfoundland and Labrador Court of Appeal, which reinstated the Provincial Court judge’s decision and said that Peace Bonds were unlike other provisions in the Criminal Code and therefore not subject to the same arrest and bail regime as other sections.

The SCC Decision

Despite the issue being moot, the SCC heard the case and ultimately held that the arrest and bail sections of the Criminal Code apply to Peace Bond procedures and that individuals can be arrested and detained pending hearings (Penunsi, para 8). Mr. Penunsi argued that the statutory schemes surrounding arrests and bail do not apply to a defendant in a Peace Bond proceeding, because these sections refer to an “accused”, and defendants in Peace Bond proceedings are not charged with committing any criminal offences (Penunsi, para 9). 

The debate centers around the catch-all clause in s. 810(5), which says that: “[t]he provisions of this Part apply, with such modifications as the circumstances require, to proceedings under this section” (Criminal Code, s. 810(5)).  If the words in the arrest and bail section can swap “accused” for “defendant” in a Peace Bond hearing, then, judges have the authority to issue arrest warrants and Crowns may seek to have individuals detained pending hearings. The majority decision focuses on how this interpretation – switching accused for defendant – is consistent with the development of Peace Bonds and Parliament’s intention to expand the use of Peace Bonds as a measure of preventative justice.

Historically, Peace Bonds could be laid without a hearing, but the laws have since changed to ensure a “more procedurally robust Peace Bond scheme” (Penunsi, para 19).  However, the power to compel people to attend Peace Bond hearings through arrest and detention do not find their source in the specific sections dealing with Peace Bonds under s. 810 of the Criminal Code.  Instead, the language of the Peace Bond provisions here suggests that the other parts of the Criminal Code dealing with arrest and bail also apply to these sections, albeit with “such modifications as the circumstances require” (Penunsi, para 26).

In addition to the development of the Peace Bond throughout history, the majority also considered Parliament’s intention of creating provisions for Peace Bonds which require hearings but failing to create any provisions “whereby a judge can ensure the defendant attends the hearing” (Penunsi, para 46). Without the understanding that s. 810(5) applies to incorporate arrest and bail provisions from elsewhere in the Criminal Code, the Peace Bond scheme is left without any mechanism to ensure that defendants actually attend the Peace Bond hearings required by the section.

The majority does point out, though, that the application of the arrest and bail provisions should not be exactly the same as where there is a criminal charge laid, given the reduced level of severity of Peace Bonds.  In fact, the conditions placed on the defendant of a peace bond proceeding “should not exceed the conditions provided for by the peace bond provision” applicable and that “in most cases” the provisions should be less severe (Penunsi, para 79). 

Applying this analysis to the facts, Justice Rowe concludes that an arrest warrant would not have been appropriate given the requirement that the threat to public safety be imminent, considering that in the case at hand, Mr. Penunsi was incarcerated and not an imminent threat to public safety (Penunsi, para 84).

Expanded Powers to Arrest and Detain Under the Criminal Code

Although the majority decision is careful to emphasize that pre-hearing detention should be rare for Peace Bond proceedings and only used under exceptional circumstances, the expansion of the authority to detain and impose conditions on people who are neither convicted of a criminal offence nor charged with a criminal offence is concerning. Preventative justice certainly has an important role to play in public safety, but this decision of the SCC begins to blur the line between preventative justice under the Peace Bond provisions and the ordinary criminal procedures under the rest of the Criminal Code. 

While I ultimately agree that the statutory scheme for Peace Bonds under s. 810 of the Criminal Code might lack some clarity with respect to the ways that defendants in a Peace Bond proceeding come before the courts, the courts should exercise restraint in correcting the gaps in legislation left by Parliament.  This is especially important where those corrections encroach on the liberty rights of individuals not to be subject to state coercion and detention. The thresholds to swearing an Information and initiating Peace Bond proceedings are low – only requiring that the allegations be reasonable, which creates the opportunity for the arrest and detention of individuals with less scrutiny than an arrest under the Criminal Code.  Similarly, because Peace Bond proceedings can be initiated by members of the public, who are not publicly accountable nor do they have any obligations to be transparent, this ruling creates far more opportunities for arrests and detentions outside of the scope of normal arrests under other sections in the Criminal Code.

Exchanging the words “accused” for a defendant in a Peace Bond proceeding is more than a simple technical change in jargon – it represents an expansion of the state’s power to arrest and detain people, an expansion that ought to be undertaken by Parliament.  Courts should exercise restraint in expanding the state’s coercive power.  Despite some indication that Parliament intended to expand the scope of Peace Bonds, the fact that Parliament did not create a mechanism within the sections could be reasonably construed to mean that they did not intend to do so. 

Peace Bonds:  Proceed with Caution

R v Penunsi clarifies an ongoing debate relating to Peace Bonds. Do other sections of the Criminal Code apply to Peace Bonds and empower judges to issue arrest warrants and order that defendants be detained pending hearings? The majority held that they do. By using a catch-all subsection of the Peace Bond legislation, the majority held that it was Parliament’s intention that Peace Bonds include powers to arrest, compel attendance at hearings, and detain people if necessary for the purpose of adjudicating on the merits of the Peace Bond.

We ought to be cautious when courts engage in statutory interpretation that permits the state to interfere with our liberty interests, especially in cases where no criminal charge has been laid and there are no criminal sanctions available as a result of the threat. Peace Bonds are intended to address disputes and concerns to safety where conduct falls outside of that which attracts criminal sanctions.  By treating them as criminal charges by empowering courts to issue warrants and order detentions, Peace Bonds stray from their intended use a preventative safety measure and move closer to a punitive sanction for actions not yet committed.