R. v. Penunsi, 2019 SCC 39(Criminal law — Sureties to keep the peace — Application of arrest and judicial interim release provisions)

On appeal from a judgment of the Newfoundland and Labrador Court of Appeal (2018 NCLA 4) setting aside a decision of Goodridge J. (2015 NLTD(G) 141).

P was nearing the end of a prison sentence when a peace bond Information under s. 810.2 of the Criminal Code was laid against him by an RCMP officer. The officer swore that there were reasonable grounds to fear P would commit a serious personal injury offence upon his release. Days before the end of his prison sentence, P was brought to court to respond to the Information, at which time a date was set for the hearing to determine whether the fear sworn to in the Information was reasonably held. However, the hearing was scheduled to take place after P’s release from prison. Wishing to avoid P’s unconditional release in the interim period, the Crown sought to show cause why P ought to be detained or required to abide by certain conditions pending the hearing. In denying the Crown’s request, the provincial court judge held that he did not have jurisdiction to subject P to a show cause hearing, concluding that the judicial interim release (“JIR”) provisions of the Criminal Code do not apply to peace bond proceedings.

The Crown sought judicial review of the provincial court judge’s decision. Prior to the application being heard, P voluntarily entered a recognizance with conditions at his peace bond merits hearing. Though the issue was moot, the Supreme Court of Newfoundland and Labrador granted declaratory relief accepting that a judge can compel a defendant’s initial appearance by issuing a warrant of arrest and thus, that the JIR provisions must apply to provide a procedure by which the defendant could subsequently be released. The Newfoundland and Labrador Court of Appeal allowed P’s appeal and restored the provincial court judge’s ruling.

Held (9-0): The appeal should be allowed and the order of the Court of Appeal quashed.

The arrest and JIR provisions of the Criminal Code apply, with necessary modifications, to peace bond proceedings under s. 810.2 of the Criminal Code and to all other peace bond proceedings. The appearance of a defendant to a peace bond Information may be compelled by a summons or a warrant of arrest. A judge or justice of the peace also has jurisdiction to subject a defendant to a peace bond to a show cause hearing when he or she has been arrested and brought before the court at first instance in relation to a peace bond Information.

Section 810.2(2) states that a provincial court judge who receives information under s. 810.2(1) “may cause the parties to appear before a provincial court judge”. However, there is no internal mechanism provided by Parliament within s. 810.2 by which a judge could compel the appearance of either party. Rather, the procedures for compelling attendance are found in Part XVI of the Criminal Code (“Compelling Appearance of Accused Before a Justice and Interim Release”). Instead of reproducing those procedures in the peace bond provisions, Parliament has chosen to apply the relevant Part XVI provisions to the peace bond scheme via a series of incorporating provisions. First, each peace bond provision (except for s. 810.02) expressly incorporates s. 810(5). Then, s. 810(5) incorporates all provisions of Part XXVII (“Summary Convictions”), including s. 795, into peace bond proceedings. Section 795, in turn, incorporates provisions of Part XVI into Part XXVII. Therefore, ss. 810.2(8), 810(5), and 795 operate together to incorporate the provisions of Part XVI, which houses the summons, arrest, and JIR provisions, into Part XXVII, which houses the peace bond provisions.

However, s. 795 does not import Part XVI wholesale into Part XXVII, but rather, its wording limits its application: the provisions of Part XVI apply “in so far as they are not inconsistent with” Part XXVII, and “with any necessary modifications”. Accordingly, whether Part XVI applies to peace bond proceedings depends on the proper interpretation of the statutory language in s. 795. When that language is properly interpreted, it is clear that Parliament intended the arrest and JIR provisions under Part XVI to apply to peace bond proceedings. The provisions of Part XVI, with respect to compelling appearance, are not inconsistent with the peace bond provisions. To the contrary, they are necessary for the proper functioning of the scheme. Parliament would not have sought to create a scheme where a judge may hold a hearing to determine whether to order a defendant to enter into a recognizance to keep the peace, but make no provision whereby a judge can ensure the defendant attends the hearing. The application of the JIR provisions flows from the power of arrest under s. 507 of the Criminal Code. Where a defendant is arrested and detained, it follows that the judicial interim release scheme applies in order to release the defendant from custody. When applied with regard to the context and purpose of the peace bond scheme, the arrest and JIR provisions are a consistent and appropriate interim measure and necessary to the function and integrity of the peace bond proceedings. Furthermore, the arrest and JIR provisions apply to peace bond proceedings with simple modifications that do not amount to substantive change in the law. Accordingly, Parliament intended the arrest and JIR provisions under Part XVI to apply to peace bond proceedings.

The proper application of the arrest and JIR provisions in the context of peace bond proceedings must be guided by the policy objectives of timely and effective justice, and minimal impairment of liberty. To begin, when exercising the discretion whether to hold a hearing, the justice must consider whether the fear sworn to in the Information is reasonably held. Initiating a s. 810.2 peace bond proceeding upon a person’s release from prison risks a further deprivation of liberty after the completion of a sentence already determined to be proportionate. Without further evidence that the feared conduct will occur, a fear based solely on the offence for which a defendant is serving a sentence will not be sufficient. Where the justice exercises his or her discretion to cause the parties to appear, he or she will proceed to Part XVI of the Criminal Code which creates a ladder of increasingly coercive measures to compel appearance of a defendant before a court. At the low end of the ladder is a summons or an appearance notice issued by a peace officer which is the default process for compelling attendance. Where a defendant appears before a justice pursuant to a summons and the hearing is adjourned, the justice has no jurisdiction to impose interim conditions pending the merits hearing. If new information comes to light after the issuance of a summons, including at the initial hearing, which information raises concerns regarding the risk the defendant poses to the public or the likelihood of his or her attendance at the proceeding, an arrest warrant may be sought at that time.

Higher up the ladder is arrest, and release by an officer in charge on an undertaking or recognizance. Where an Information is laid before a justice and he or she finds that there are “reasonable grounds to believe that it is necessary in the public interest”, he or she may issue a warrant for the defendant’s arrest. This phrase must be interpreted in light of the context (where the subject is not suspected of having committed a criminal offence) and the purpose (to bring the subject forward to a hearing) of the provision operating within the peace bond scheme. Accordingly, it will only be necessary in the public interest to issue an arrest warrant where a case has been made out that the defendant will not otherwise attend court or that the defendant poses an imminent risk to the public. While placing a person under arrest inherently infringes his or her liberty, the infringement should be minimized to the extent possible.Higher still up the ladder is detention and judicial interim release. In the rare case where a peace bond defendant is arrested and held over for bail, the JIR provisions under s. 515 provide the mechanism to release the defendant from custody. These provisions must be applied with due regard to ensuring the attendance of the accused at the peace bond hearing, and the ultimate goal of the peace bond scheme: to place the defendant under recognizance where an informant has a reasonably held fear that the defendant will commit certain harms. It would be inconsistent with the peace bond provisions to impose conditions aimed at protecting against a risk to the public that surpass the conditions that could be placed on a defendant at the conclusion of a hearing on the merits of the peace bond application. The default is release on the giving of an undertaking without conditions, unless the prosecutor (or the informant) can show cause why an order for more stringent release conditions should be made. For a condition to be reasonable, it must have a nexus with either ensuring the defendant’s attendance in court, or with the feared conduct sworn to in the Information. Under most circumstances, the final rung of the ladder would be a recognizance without sureties with reasonable conditions in the circumstances. The circumstances where detention is justified in the peace bond context must also mirror the possible outcomes provided for in the peace bond provisions. A judge has authority to order detention following a peace bond hearing only where the defendant fails or refuses to enter into a recognizance to keep the peace and be of good behaviour. Accordingly, the rare case where detention may be justified will likely only arise where a defendant refuses to sign a recognizance and therefore refuses to be bound by conditions related to ensuring attendance at the peace bond hearing, and/or to addressing in the interim the fear sworn to in the Information.

Reasons for judgment: Rowe J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown and Martin JJ. concurring)

Neutral Citation: 2019 SCC 39

Docket Number: 38004