Peace Bonds and Violence Against Women: A Three-Site Study of the Effect of Bill C-42 on Process, Application and Enforcement

11. Overall Findings (cont'd)

11. Overall Findings (cont'd)

11.3 Efficacy of Bill C-42

Generally speaking, of the informants who expressed an opinion and were sufficiently knowledgeable about the Bill C-42 amendments to peace bond issuances in the three jurisdictions we studied, most reported that the amendments to sections 810 and 811 had no discernable effect on the use of peace bonds in cases of domestic violence. One Nova Scotia J.P. aptly sums up this sentiment:

Interviewer: Okay, based on your experience, have the handling of peace bonds changed since the 1995 Bill C-42 amendments?

J.P.: They haven’t.

Interviewer: They haven’t at all?

J.P.: No.

The following sections look more closely at the effect of Bill C-42 as well as perceptions about its efficacy in the three jurisdictions studied. Each section deals directly with a corresponding goal of the legislation.

11.3.1 Increased Accessibility

A general goal of Bill C-42 was to increase accessibility to peace bonds. In section 7.1.1 of this report, we established that based on ACCS data, the annual peace bond issuance rate per 100,000 population climbed each year since 1994/95 after the enactment of Bill C-42. Obviously, we cannot say with certainty that these increases were directly due to the legislation.

An additional source of data comes from police records in Halifax and Winnipeg (depicted in Graph 11.3.1.1). There is no discernable trend from our site data that can tell us any more about accessibility for those two cities. Moreover, increased accessibility is most often a function of court procedure than legislation:

… when Parliament brought these changes in they probably weren’t thinking of the court process, the court delay. I mean if an application is filed then the person has to be summoned which can take eight weeks. Then if they want to contest the application you set it down for a hearing and you’re looking at six to ten months. (NS Crown Attorney)

Graph 11.3.1.1 - Peace Bond Inssuances in Winnipeg and Halifax

Peace Bond Inssuances in Winnipeg and Halifax
[ Description of Graph 11.3.11 ]

Whereas one of the general intents of Bill C-42 was to increase accessibility, a more specific mechanism by which this was to be accomplished was third party applications.

11.3.2 Third Party Applications

Another provision of the Bill C-42 amendments to section 810 of the Criminal Code was to make it possible for a third party to obtain a peace bond on behalf of an applicant. That is, presumably to lay an information on behalf of someone at risk or in fear of harm from someone else. None of the statistical data either available to us or collected for this report included any information on third party applications. This information is simply not collected in police reports. More importantly, however, based on our interview data, it appears that third party applications are few and far between.

All informants queried about third party applications reported that this occurred very rarely or never:

Extremely rare. Less than one percent … I’ve never seen that happen. (NS Justice of the Peace)

Never. I’ve never heard of that. I would be really surprised if that’s ever happened in Hamilton. I would love that! (ON Shelter worker)

I don’t think I’ve ever seen [the police apply for a peace bond]. I know that there seems to be some capacity for that, but I’ve personally never seen it. (MB Shelter worker)

One Ontario women’s shelter worker reported that she had never obtained a peace bond on behalf of a battered woman, and moreover, had never heard of anyone else doing so. None of the police officers we interviewed could recall a third party application either. Only one Winnipeg shelter worker could recall an incident but this was in the particular case of an under-age applicant:

Very rarely … Well, because it’s a person under the age of 18 and so it required an adult’s signature, a person to apply on her behalf. (MB Shelter worker)

In fact, the only third party applications recalled were a direct result of recent policies to track released high risk offenders and have very little to do with domestic violence cases:

… we’ve been involved in some of the third party applications brought by the police for sexual offenders. (NS Crown Attorney)

Most informants we interviewed initially interpreted our questions as ‘assisting’ an applicant which is, of course, not uncommon:

Not on behalf of her, no. I’ve accompanied lots. (NS Shelter Worker)

I’d say about ten percent [accompany the battered woman at the time of application]. I’ve never had an application made by a police officer. (NS Justice of the Peace)

Oh yes, that, if there’s, if we can get one, it’s our policy to, we go get it, we help the woman with the whole process, we serve documents, we do information, we do the whole thing, we don’t just tell them “you go get an 810" and send them down to the court office. We assist them and arrange for the Justice and help with the services. (MB Police officer)

Assisting an applicant to get a peace bond was possible even before Bill C-42, and so has nothing to do with the legislative amendments. Rather, it is more likely a result of increased services for victims of violence and, in particular, battered women since the early 1980s.

There is, in fact, a clear legalistic disincentive for persons to make third party applications. Take for example the curious case of Ottawa, where battered women ended up getting caught in a procedural loop. If the police felt that there were insufficient grounds for charging in cases of domestic violence, they would sometimes advise women to get a peace bond. However, the J.P. would refer the woman back to the police arguing that if the police believed the woman needed protection due to some earlier episode, an arrest should be made and charges laid. The police then decided to equip women with a letter to the J.P.:

Yes, and actually what we’ve done as a result of some of the problems when we came into the section here two years ago, what we ended up doing was creating a form letter for the victims so when our investigators get a report where there is not enough evidence we have a form letter that says the following: “Your Worship Justice of the Peace. I am Detective So and So of the Ottawa Police Service Partner Assault Section. I have investigated the incident indicating the file number and the occurrence date and determined that it did not meet the threshold of the criminal offence. However due to previous incidences and safety concerns of the victim I have directed him/her to 161 Elgin Street which is the courthouse, for an application to lay information under Section 810 under the Criminal Code of Canada so reports his/her application for same.” (ON Police officer, Ottawa)

The Justice of the Peace was purportedly “quite upset” by this practice. Indeed, most justice professionals we interviewed believed that peace bond applications were a private matter. In the case of Halifax, peace bonds are listed as a ‘private recognizance’ in the police database. But this attitude of ‘personal responsibility’ for obtaining a section 810 recognizance seems to be a well-entrenched aspect of both police and judicial reckoning.

… it is the individual person himself who makes the application. What we provide them is an information sheet that explains what the peace bond is and an information sheet that explains the process. (NS Police officer)

… it’s not the police officer who obtains the peace bond, it’s the individual themselves. I have been a police officer for thirty years and anytime I was ever involved with peace bonds the only involvement I ever got was if I could help somebody take them down to court. A peace bond can only be obtained by that person, police cannot obtain the peace bond. (NS Police officer)

The following Hamilton police officer reported being rebuked by the requirements of a J.P. to have the applicant lay an information in person:

It’s funny you should ask that, we actually had officers attempt to apply for an 810 peace bond on behalf of a victim and our Justice of the Peace refused them saying he wanted the victim there personally … So, what we’re running into is, although the legislation says you can apply on behalf of someone else, the Justices of the Peace have taken the stand that they want the victim there personally, they want to speak to them. (ON Police officer)

Whether based on legal precedent, practice, or fiction, the Justices of the Peace we interviewed seemed reticent to permit third party applications (even hypothetically):

Almost all of the evidence at a peace bond hearing is the oral evidence of the victim. That’s almost always. The person would go in and, here’s what I saw, or here’s what I heard. Of course the rules of evidence would prohibit third party evidence. You couldn’t go in and say, my sister told me, you know. But almost all of it is solely the evidence of the complainant. (NS Justice of the Peace)

Notwithstanding a lack of actual use of third party provisions, the tendency to assist applicants rather than stand in lieu of them, and a tendency to define peace bond applications as ‘privately’ initiated legal orders, perhaps the greatest hurdle in the use of third party applications is a lack of practitioner knowledge:

I don’t even think the police know they can do that. (NS Lawyer)

Don’t see them. They have brought them in, yeah, but they didn’t obtain it, the person did it themselves … Why they did it themselves? Cause I don’t think the police knew they could do it, or wouldn’t have time. (MB Justice of the Peace)

Even justice personnel who have dealt with peace bonds for years were often unaware of the availability of third party application. It seems, however, that even when practitioners were aware of this possibility, previous legal practice and precedent would make it unlikely that third party applications would be accepted.

11.3.3 Practitioner Knowledge

It was not just the possibility of third party applications that many informants were unaware of. Generally speaking, even justice professionals who worked with peace bonds on a more or less regular basis were often unaware of changes to the legislation:

I’ve never heard of that. (NS Shelter Worker)

I’m not 100% familiar with the amendment … (NS Police officer)

I hadn’t heard of them [amendments] until I read them. (ON Crown Attorney)

… aware of the section, yes, not the changes. (MB Police officer)

Some of the informants we interviewed requested, along with an advance list of questions, the actual amendments made under Bill C-42 to sections 810 and 811.

11.3.4 Conditions

As mentioned in previous sections (8.3, 9.3, 10.3), the general tendency of judges when imposing conditions pursuant to a section 810 peace bond appears to be listing ‘KPGB’ and ‘no communication or contact.’ Amendments to section 810, and specifically the addition of subsection 3.2 providing judges with possible conditions relating to restricting a person’s ability to come within the vicinity or communicate ‘directly or indirectly’ with the applicant, laid out particular suggestions for conditions to be imposed. The additional section also makes possible to restrict a person’s movement and communication in relation to an applicant’s spouse and/or child.

Although our statistical data does not lend itself to the particulars of conditions imposed since they are based on police data entry practices, additional qualitative data from justice personnel interviews suggest that the conditions typically imposed by judges are largely similar in most cases:

Generally, it’s just keep the peace and be of good behaviour, no contact. (NS Justice of the Peace)

Recent provincial domestic violence legislation in Manitoba is believed to be a more robust tool for imposing conditions on a person by some informants:

It’s not the rule of thumb in domestic situations, because, I don’t have the literature in front of me, but, it seems to me that the dimensions of a protective order are far more reaching than the dimensions of a peace bond. So you can cover more, add more conditions on it, you can specify certain details on a protection order. Just the expediency of getting it. (MB Shelter worker)

Like exclusive occupancy of the residence. There’s also a part of the act that relates to firearms as well. (MB Crown attorney)

However, one of the problems informants cite with reference to peace bonds is that typically vague wording or ‘loopholes’ can often be used by clever persons under a recognizance to continue to harass an applicant:

And as soon as they do the ‘except for work related’ and he works for say a cable company, well he had to drive through there to go to a work site. As soon as they put an ‘except’ in there they’ve given him an out. (ON Police officer)

An additional problem can involve police discretionary practices wherein ‘technical’ violations of a peace bond are not taken seriously unless there is some other substantive or direct act involved such as a threat:

So the guy, I forget the language, you’re supposed to keep the peace and be of good behaviour whatever the hell that means, and they, um, so the guy might show up at her workplace and leave a note or something, that he’s not totally threatening so they can’t charge him with threatening, but he seems like he’s kind of bothering her, but that’s not enough for the police. One police officer says oh that’s not a breach and another says it is. Things like that will happen where he’ll just seem to skate the line that maybe it’s not a breach. Or he’ll phone and it’s not really a breach, like, when is it a breach? (ON Shelter worker)

11.3.5 Deterrence

Bill C-42 increased the maximum penalty for the violation of peace bonds from six months on summary conviction to two years on indictment. This not only increased the penalty for a breach but also redefined a violation of a peace bond as an indictable offence making it possible for police officers to arrest without necessarily witnessing the violation.

The ostensible goal of these amendments was to decrease the likelihood of breaches due to the severity and certainty of punishment: a person under conditions of a peace bond is more likely to be arrested and faces a heftier maximum sentence. That is, in part, the principle theory of deterrence.

In section 7.1.2 of this report, we already discussed how the national breach rate based on ACCS charge data has remained steady. Data from both Halifax and Winnipeg also support the fact that Bill C-42 has had no real effect on peace bond violations, whether domestic violence related or otherwise. Justice practitioners, themselves, were mostly of the opinion that these amendments meant very little in terms of specific and general deterrence:

I don’t think it’s really applicable, our clientele, if they’re going to breach these things, it doesn’t mean squat whether it’s two years or five years. That’s my personal opinion. (MB Police officer)

Most informants argued that peace bonds are useless against persons who have a history of partner abuse. Instead, peace bonds were more beneficial in cases where minor infractions or disputes had occurred:

The cure is to work on the source of the problem not to give a court order to say, don’t go beat her up, don’t go near her. It doesn’t work. Peace bonds work for people who otherwise are lawful. They might stop petty nuisances but they’re not going to stop major crime. (NS Justice of the Peace)

Peace bonds, court orders are effective to people who have just stepped over the line and they’re not common, it’s not common for them to step over that line. (MB Police officer)

… there is no deterrent effect. (ON Police officer)

Graph 11.3.5.1 - Breach Rates in Winnipeg and Halifax

Breach Rates in Winnipeg and Halifax
[ Description of Graph 11.3.5.1 ]