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RECOGNIZANCES AND UNDERTAKINGS - Recognizance to keep the peace or peace bond

Friday, July 05, 2019 @ 3:35 PM  


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Appeal by the Prosecution from a judgment of the Newfoundland and Labrador Court of Appeal setting aside a decision granting the declaratory relief sought by the Prosecution. The appeal raised the question of whether the judicial interim release (JIR) provisions, and by necessary implication, the power of arrest, under Part XVI of the Criminal Code, applied to provisions under the heading “Sureties to Keep the Peace” in Part XXVII of the Criminal Code (peace bond provisions). Penunsi 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 a Royal Canadian Mounted Police officer. In the Information, the officer swore that there were reasonable grounds to fear Penunsi would commit a serious personal injury offence upon his release. Days before the end of his prison sentence, Penunsi was escorted by the RCMP 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 Penunsi’s release from prison. Wishing to avoid Penunsi’s unconditional release in the interim period, the Prosecution sought to show cause why Penunsi ought to be detained or required to abide by certain conditions pending the hearing. In denying the Prosecution’s request, the provincial court judge held that he did not have jurisdiction to subject Penunsi to a show cause hearing, concluding that the JIR provisions did not apply to peace bond proceedings. The Prosecution sought judicial review, and the Supreme Court of Newfoundland and Labrador granted declaratory relief, accepting that a judge could compel a defendant’s initial appearance respecting an Information by issuing a warrant of arrest. The Newfoundland and Labrador Court of Appeal restored the provincial court judge’s ruling. The Court found that the provisions in Part XVI of the Criminal Code (Compelling Appearance of Accused Before a Justice and Interim Release) were inconsistent with the peace bond scheme and thus did not apply to it.

HELD: Appeal allowed. This was an occasion where the significance of the issue and the inconsistency in the appellate jurisprudence merited the expenditure of resources to decide the moot issue. The provisions of Part XVI, with respect to compelling appearance, were not inconsistent with the peace bond provisions. To the contrary, they were necessary for the proper functioning of the scheme. Parliament would not have sought to create a scheme where a judge might hold a hearing to determine whether to order a defendant to enter into a recognizance to keep the peace, but made no provision whereby a judge could ensure the defendant attended the hearing. This would be an absurd outcome. The application of the JIR provisions flowed from the power of arrest under s. 507. Where a defendant was arrested and detained, it followed that the judicial interim release scheme applied 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 were a consistent and appropriate interim measure and necessary to the function and integrity of peace bond proceedings. Given the unique circumstances of the peace bond defendant as a person accused of no crime, it was the responsibility of every justice system participant to guard against the deprivation of the defendant’s liberty unless absolutely necessary. Any interim conditions placed on a defendant relating to the fear sworn to in the Information should not exceed the conditions provided for by the peace bond provision under which the Information was sworn and, in most cases, should be less severe. The provincial court judge did not err in finding that he lacked jurisdiction to subject Penunsi to a bail hearing, not because the JIR regime did not apply to peace bond proceedings, but because Penunsi had never been arrested in relation to this matter. Judicial interim release did not apply in his case.

R. v. Penunsi, [2019] S.C.J. No. 39, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., July 5, 2019. Digest No. TLD-July12019013-SCC