Section 810 Recognizances and common law peace bonds are similar in these respects: (a) both involve in-Court hearings; (b) both are Court orders that must be obeyed; (c) neither is considered a criminal record; (d) both are maintained in police records; (e) a breach can have financial consequences or land you in jail; (f) if you don't want to sign, you have the right to call evidence and make submissions; and (g) if you refuse to sign the Order, you can be sent to jail. There are also differences.
Section 810 Recognizances: These are a group of Court orders found at section 810 of the Criminal Code and following. Under section 810, for example, the Court can impose conditions for up to one year where the evidence establishes that a person has a reasonable fear for her person or property. Recognizances can also be ordered where there's a reasonable fear of a sexual offence (810.1), a terrorism offence (810.011), a criminal organization offence (810.01), a serious personal injury offence (810.01), or a forced marriage (810.02). The potential conditions are informed by the applicable section and tailored to the identified risks.
Recognizances have attracted constitutional attack for the risk of jail and the liberty restrictions. Our Court of Appeal ruled in the Budreo case, however, that "s. 810.1 does not create an offence. Its purpose is not to punish crime but to prevent crime from happening." I would expect any Ontario Court to accept that pronouncement as applying to all 810 provisions.
Common Law Peace Bonds: These bonds arise from hundreds of years of practice rooted in England. It's a discretionary power that a Judge can exercise even if you are acquitted (G.M.). Unlike section 810s, there is no time limit, but they rarely exceed 12 months. If you have a common-law peace bond, it means that there was an apprehended breach of the peace. The Judge ordered you to enter the bond to maintain Her Majesty's peace.
Worries and Consequences: Whether you should agree to a bond or Recognizance depends on a careful assessment of the advantages and disadvantages in your individual case. There is no easy "yes" or "no". No bond should be signed without first receiving legal advice. As I tell my clients, it's not nothing. It's a Court order. Some consequences are immediate. Others are potential.
Disadvantages to entering a bond or Recognizance might include (a) the hardship of the conditions, (b) the impact on a civil claim related to the criminal proceedings, including the inability to sue for malicious prosecution, (c) the risk that you may be later set up for a breach, and (d) the stigma that might arise if others are aware that "he had to sign that bond because of his bad behaviour." If you are involved in a family law dispute, consult your family law lawyer.
The main advantage is closure. As with many things in life, it's good to make peace and move on. If you're facing criminal charges, acceptance of a peace bond offer usually means the charges will be withdrawn, allowing you to avoid the risk, stress, and expense of trial (P.Y.).
If you are only in Court for the 810 proceeding, voluntarily entering the bond has three potential benefits: (a) it removes the stress and expense of the 810 hearing; (b) it reduces the risk of what might occur at a contested hearing — for example, criminal charges could be laid if new allegations are revealed; and (c) you might prefer to negotiate your conditions with the Crown rather than risk having a Judge craft them at the end of a contested hearing.
To review transcripts from my Court cases, read about K.M. (a five-year common-law peace bond where the complainant testified), B.L. (a one-year section-810 Recognizance where he testified), and D.P. (a one-year section-810.1 Recognizance where no one testified). They wisely chose to enter peace bonds rather than have trials. What you should do depends on your situation. As Tolstoy wrote in his opening couplet in Anna Karenina,
Happy families are all alike; every unhappy family is unhappy in its own way.
Your case is unique. You deserve individual attention. Seek legal advice from your lawyer or from an experienced GTA criminal lawyer. Best course of action will then become clear.
Craig Penney, Toronto Defence Lawyer
If injury or damage feared: 810(1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person
(a) will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property; or
(b) will commit an offence under section 162.1 [sharing or posting an intimate image without consent].
Duty of justice: 810(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division.
Adjudication: 810(3) If the justice or summary conviction court before which the parties appear is satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for the fear, the justice or court may order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for a period of not more than 12 months.
Refusal to enter into recognizance: 810(3.01) The justice or summary conviction court may commit the defendant to prison for a term of not more than 12 months if the defendant fails or refuses to enter into the recognizance.
Conditions in recognizance: 810(3.02) The justice or summary conviction court may add any reasonable conditions to the recognizance that the justice or court considers desirable to secure the good conduct of the defendant, including conditions that require the defendant
(a) to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
(b) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or
(c) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance.
Conditions: 810(3.1) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the defendant or of any other person, to include as a condition of the recognizance that the defendant be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for any period specified in the recognizance and, where the justice or summary conviction court decides that it is so desirable, the justice or summary conviction court shall add such a condition to the recognizance.
Surrender, etc.: 810(3.11) Where the justice or summary conviction court adds a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall specify in the order the manner and method by which
(a) the things referred to in that subsection that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences and registration certificates held by the person shall be surrendered.
Reasons: 810(3.12) Where the justice or summary conviction court does not add a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall include in the record a statement of the reasons for not adding the condition.
Idem: 810(3.2) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the informant, of the person on whose behalf the information was laid or of that person's spouse or common-law partner or child, as the case may be, to add either or both of the following conditions to the recognizance, namely, a condition
(a) prohibiting the defendant from being at, or within a distance specified in the recognizance from, a place specified in the recognizance where the person on whose behalf the information was laid or that person's spouse or common-law partner or child, as the case may be, is regularly found; and
(b) prohibiting the defendant from communicating, in whole or in part, directly or indirectly, with the person on whose behalf the information was laid or that person's spouse or common-law partner or child, as the case may be.
Forms: 810(4) A recognizance and a committal to prison in default of recognizance may be in Forms 32 and 23, respectively.
Modification of recognizance: 810(4.1) The justice or the summary conviction court may, on application of the informant or the defendant, vary the conditions fixed in the recognizance.
Procedure: 810(5) The provisions of this Part apply, with such modifications as the circumstances require, to proceedings under this section.