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

9. Hamilton

9. Hamilton

The municipality of Hamilton-Wentworth is home to Canada’s largest industrial and steel producing companies. It is situated on the south-western edge of Lake Ontario along Canada’s most populated commuter corridor know as the ‘golden horseshoe.’ The 1996 Census placed the population of Hamilton at 467,799 persons. The municipality, which is 91 per cent urban, is policed by 710 sworn officers and 388 civilian members of the Hamilton Regional Police.

9.1 Context, Processing and Enforcement

As in Nova Scotia, most Ontario police services, including Hamilton, have adopted a pro-arrest and charge policy in cases of spousal or partner violence. This policy relegates peace bonds to a ‘last resort’ tool that often signifies a criminal justice system failure rather than a success.

Generally for domestic violence you’re going to have criminal charges attached to it as opposed to an application. (ON Crown Attorney)

… whenever I’ve seen an 810 arise and within the context of the domestic situation I haven’t seen that very often. If, because there’s always accompanying charges, so if police are getting called to a scene, their mandate is to charge when they have reasonable grounds to believe an offence has been committed. (ON Crown Attorney)

Police officers may still recommend a peace bond in certain cases, but this is usually supposed to occur in exceptional circumstances when there are insufficient grounds to make an arrest but the victim still wants some measure of protection.

An Ottawa police officer [6] specialising in family violence reported the following:

They are useful in cases where we don’t have enough evidence to lay charges and it will bring some peace of mind to the victims to a certain extent. But the problem with the peace bond is that it’s just a piece of paper.  We do enforce them but in some cases the victims might not call right away to report a breach because they’ve already been told by the Police that they do not have enough to lay a charge initially to go get a peace bond. And they might not be aware that the breach will be attended to right away. (ON Police officer)

Similarly, in Hamilton, the police still make use of peace bonds in domestic violence situations but in exceptional circumstances:

We try to encourage victims to go in to obtain peace bonds when it’s a situation where we don’t have enough to lay criminal charges but after speaking with the victim there seems to be some concern for their safety. Then we will have one of the investigators speak to the victim and suggest that they either obtain a peace bond or consider getting a court order restraining order. (ON Police officer)

The arrival of a pro-arrest policy and a special domestic violence court in Hamilton has resulted in a culture that views section 810 peace bonds negatively for cases of domestic violence. The ‘exceptionality’ of section 810 peace recognizances in cases of domestic violence is echoed by many Hamilton justice professionals:

No, the exceptional cases involve where there’s no history of violence whatsoever, perhaps the victim or accused are dying of cancer, or so ill that there’s no hope or no chance that they’ll either reconcile or that they’ll have contact in the future that would precipitate violence or there’s no chance of violence because of their personal circumstances. (ON Crown Attorney)

Not many. It used to be that we agreed, well, when I say we I mean the Crown, we agreed to peace bonds more frequently than we do now. Since the domestic courts have come into place they generally don’t … (ON Police officer)

The way we would get involved with 810 peace bonds would be generally to prosecute the case, and generally with domestic violence, an 810 peace bond is not the way the case is initiated. (ON Crown Attorney)

When we pressed our informants to give us an estimate of the number of domestic violence cases that are processed by way of section 810 peace bonds, their responses were coloured by a negative view of protection orders in lieu of prosecution:

Yes, I can’t give you a percentage, but I’d hope under 5%. I don’t know. (ON Crown Attorney)

In fact, all of the informants we talked to in Hamilton argued that section 810 peace bonds are more useful in non-domestic violence situations such as neighbour disputes:

… the Crown is more inclined to use a peace bond in a non-family violence case because the issues are clearly different, the parties generally are not going to have a continuing relationship… (ON Crown Attorney)

In general peace bonds are most useful in resolving things that are sort of more civil than they are police related, but there’s still a potential there for something to go bad. So, before anything does go wrong or becomes criminal we suggest people go in and get a peace bond. Neighbour disputes seem to be a big one because you’re living side by side. Domestic related would probably be the least useful because at the end of the day it’s just a peace of paper. (ON Police officer)

Well, I would say that the 810 peace bonds are more commonly used with non-family related violence, say neighbour disputes, the sexual predator or paedophile, and I would say that they’re not used as frequently in the family violence or spousal situation. (ON Crown Attorney)

A Hamilton J.P. told the writer that he is inclined to refer women who want a peace bond in cases of spousal or partner violence back to the police. The processing of peace bonds in Hamilton is the same as in Halifax. The applicant swears out an information to the Justice of the Peace who then sets a date for the hearing. If the case is contested, it is heard before a judge but the process can be lengthy, taking up to six months before a peace bond is issued.

In lieu of section 810 peace bonds, the practice in Hamilton has been a heavy reliance on ‘common law’ peace bonds [7] usually voluntarily entered into at trial as a condition or as part of sentencing.

Can I say one more thing? Because we do deal with common law peace bonds here as well, that’s a court order and we prosecute that pursuant to section 127 of the Criminal Code. Disobeying a court order, which is a straight indictable offence. (ON Crown Attorney)

Given the regular use of common law peace bonds in Ontario, another Hamilton Crown Attorney noted that section 810 peace bonds were “irrelevant to domestic violence in this jurisdiction.” Similar sentiments were expressed by the following shelter worker:

Um, I guess, primarily in situations where women have been to court because of the situation of abuse, and an arrest and something has been negotiated outside the courtroom and the guy has agreed to a peace bond. That has happened, generally women who have very high levels of fear have had contact obviously with the police and the judiciary, it’s just, we don’t see them that often. (ON Shelter worker)

Other than section 810s and common law peace bonds, battered women in Ontario can obtain restraining orders by going to Family court. Most recently, new legislation seeks to make ‘emergency intervention orders’ available to partners and spouses of abusers on a round-the-clock basis. However, as of the writing of this report the Domestic Violence Protection Act was passed by the Ontario Legislature but had not yet been proclaimed. These orders can be issued immediately rather than in six months, which is an answer to one of the major problems associated with section 810 recognizances.

I don’t, no. I have helped with it, I’m not sure I could guess but I would make a point of advising, probably both clients about that as an option. I think that we would, just as a part of giving women their rights, we would cover a peace bond, the number of women that actually do peace bonds aren’t very high. (ON Shelter worker)

Um, I’m not sure that I’d say a preference, but certainly it’s more common that our clients have more restraining orders. (ON Shelter worker)

Ontario Crown attorneys, in conjunction with police and Corrections Canada, are also experimenting with the use of section 810 peace bonds in cases where sexual predators are released from incarceration. The offender is asked to voluntarily enter into the order. A similar program is being implemented in Manitoba (see section 10.1).

Hamilton police data on peace bond dispositions from 1997-2000 seem to support the observations of informants who point to the heavy use of common law peace bonds. Table 9.1.1 shows that while the overall use of ‘peace bonds’ is dropping during both sentencing and as a trial disposition, these numbers are still much higher than recorded section 810 issuances for the Hamilton court.

Table 9.1.1: Hamilton Peace Bond Dispositions in Cases of Spousal Assault
YEAR Withdrawn Sentence
2000 161 24
1999 187 81
1998 193 108
1997 349 238

Source: Hamilton Police Service Monthly Spousal Assault Summary

We queried Hamilton police records personnel about the meaning ‘peace bonds.’ Their answer was that they include “mainly” common law peace bonds in their numbers.  Thus, when we compare Hamilton court reported section 810 peace bonds versus Hamilton police numbers on common law peace bond issuances, we find the following: ACCS data for Hamilton in 1999/00 reported 26 section 810 peace bond issuances, for 1998/99: 17 issuances, and 1997/98: 19 issuances. However, in-house Hamilton police statistics indicate 268 peace bonds for 1999, 301 for 1998, and 587 for 1997. Obviously, this is a great discrepancy.

It seems that whereas Halifax relies on arrest and release on an undertaking, Hamilton uses a similar approach but often includes common law peace bonds at trial.

9.2 Respondent Characteristics

Given that we had no individual case tracking information from the Hamilton police information system, no respondent information was available. Existing Hamilton police statistics also did not include this information so we cannot know who has peace bonds issued against them in this jurisdiction.

9.3 Conditions

As in the case of respondent characteristics, no statistical information on conditions imposed when peace bonds are issued is available for Hamilton because we had no access to police records. However, there is reason to believe that similar conditions are typically imposed in Hamilton as in Halifax or Winnipeg:

The no-contact, no-communication, to have a radius, remember their work places or their general hang outs, where they go to school, make them think of all the areas that they attend that the suspect or the offender would know about. Also, one of the big things is to ask for it and if the Justice of the Peace turns you down then that’s one thing but you can pretty much ask for anything you think is going to make you and your children safe. If you get it refused then that’s fine but if you never ask and could have had it that’s a different story. (ON Police officer)

Most of the people we interviewed cited ‘no contact’ and ‘KPGB’ as the two most frequent conditions imposed.

9.4 Breach Rates

Breach rates for Hamilton could not be calculated without access to local police records and a CPIC check. Since this information was not available, we cannot establish how many persons violated conditions of a peace bond in cases of domestic violence for Hamilton. As for Halifax, most informants reported that if a violation of a peace bond occurred, the police would arrest for both the substantive offence and violation of the order:

Police will charge the 810 and if they determine that the accused is on a peace bond, just like they would if they determined he was on a recognizance or a probation order. They would, I would expect them to lay a charge for both the substantive charge and the breach of a peace bond. (ON Crown Attorney)

They charge for everything. So if an assault has occurred, and a threat, and they happen to be on a peace bond as well all three charges are laid. (ON Police officer)

However, one informant indicated otherwise:

Usually, it’s a single charge of an assault … (ON Police officer)

9.5 Sentencing

Justice personnel in Hamilton report that they have not seen any significant change in sentencing practices since Bill C-42 was enacted. Given the nature of peace bond use in Hamilton, most informants reported that such orders were not taken seriously and that jail sentences almost never happen for breaches alone:

No, to tell you the truth, not for peace bonds like this because generally if you’re going the peace bond route and there’s been a breach of a peace bond, you’re not going to be in the two year type of range, two years, you’re probably going to have to have a criminal offence too, and you’ll probably attract more of a penalty for the criminal offence than for breaching the court order. (ON Crown Attorney)

I’ve never heard of anyone getting ... I’ve been in this job for 13 years and I’ve never heard of a guy going to jail for breach of a peace bond at all, let alone for two years. Never, never, I’ve never heard that. That’s still mostly considered not a big deal. (ON Police officer)

Although individual case records were not made available to us in order to examine sentencing rates in Hamilton, police statistics indicate fewer not guilty dispositions in cases of domestic violence since 1997 (see Table 9.5.1). This is an interesting trend when coupled with data from Table 9.1.1 on peace bond issuances. It appears that as guilty findings have increased, peace bond issuances have dropped.

Table 9.5.1: Spousal Assault Dispositions, Hamilton (1997-2000)
YEAR DISPOSITIONS
  Guilty Not guilty Withdrawn
N N % N % N %
2000 931 41.9 119 5.4 1173 52.8
1999 1092 42.6 193 7.5 1278 49.8
1998 1016 37.8 334 12.4 1335 49.7
1997 808 31.3 427 16.5 1348 52.2

Source: Hamilton Police Service Monthly Spousal Assault Summary