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)
Throughout this document, we have reported that zero tolerance policies have made peace bonds increasingly less relevant in cases of domestic violence. The single greatest factor in the decision not to use peace bonds emanates from pro-arrest and charge policies that prefer a suspect is charged where there are reasonable and probable grounds to charge him/her:
Zero tolerance has overshadowed any changes that were made in the legislation. (NS Judge)
I think in the big scope it is, zero tolerance is better than peace bonds. (NS Police officer)
I mean, the police charge policy is (unintelligible) but it’s different with neighbours if they have discretion still with neighbours, they can go, even if there’s reasonable grounds to believe that a low level assault has taken place they may choose not to lay the charge. (MB Crown Attorney)
Yes. If someone calls me on the phone, and we do get the anonymous phone call, and they don’t want any police action, they don’t want to get involved with police for whatever their reasons are, or their fear of the justice system that’s when I would recommend a peace bond. Because if we can’t get them in here to get police assistance I don’t want to leave them with absolutely no options. So, I will suggest a peace bond or a restraining order through family court. But my first suggestion is to getpolice involved especially when I know the details of what has happened. (ON Police officer)
To go to a peace bond means that you’re not proceeding on criminal charges, and with the domestic violence initiative, it, the initiative includes the enhanced prosecution model which means that we would only use a peace bond in exceptional cases and the majority of the cases we have to prosecute fully. (ON Crown Attorney)
Moreover, the increasing use of restraining orders or, more recently, provincial domestic violence emergency protection orders makes it unlikely that peace bonds will be seen as a viable option for battered women:
This Domestic Violence Protection Act, if we go to a house and there’s no charges but we see this woman is in a very dangerous situation we can apply for this Domestic Violence Protection Act, or under that, for the order to remove the other party from the home, but never lay any charges. So you think about that and human rights issues and all that other stuff it’s not completely thought out or thought through. But it’s coming. It’s already passed I think the third reading, it’s just waiting for a proclamation. (ON Police officer)
Police officers are also reluctant to enforce peace bonds in cases of domestic violence when they believe the applicant has allowed contact and/or home visitation contrary to the conditions of the order. Whether based on legal fact or fiction, police officers place an onus on the applicant to maintain the integrity of the order. Other justice professionals report the same problem:
… what is happening to a lot of our clients is they get the protection order or the prevention orders and they are lifelong. Now if she reconciles with her partner, and something happens, the women have sometimes been charged because they have an order that says they are to have no contact. So a lot of times, what we have to advise our clients, is that if they’re reconciling with their partners they need to go and try and get their orders dropped. Now if they get that order dropped, that might increase their risk, whereas with a peace bond, in Manitoba anyway, a peace bond is only for a year. (MB Shelter worker)
When an applicant wants to use a peace bond as leverage or protection ‘in case’ things go awry, justice personnel feel that this is an unethical practice and, in particular the police feel reticent to take steps to have the order enforced:
… where there was still some desire for contact but, I mean sometimes the women want these types of orders as long as he’s behaving. I mean as long as he’s behaving things are okay but when he’s not behaving they want to be able to utilise this order. I don’t think that’s quite appropriate. I mean I think it’s gotta be more clear cut. You’ve got, you’ve got it and that’s it. (MB Shelter worker)
No, not even an assault. If you have a peace bond and say I stop you, say you have a peace bond against me and I’m your husband, and a month after I sign the peace bond you and I get together and we decide look you know in the interest of the kids and all let’s try to make it work. You don’t notify the courts or anything else. The police stop us, I’m driving and you’re in the car with me, okay, they do a check, right? They find out that I’m on a recog., an 810 recog., they would approach you and they would say you know your husband here, are you so and so? Yes I am. Our records show that he’s on a peace bond not to have any contact with you. And you can say yes, but we’re trying to reconcile. Under a peace bond police do have the discretion, okay, if you say look, I want to give you a statement to the fact that we’re trying to reconcile. The police then would have the discretion not to charge. Okay? But if you call the policeand say look, Kevin’s here, he’s my boyfriend, I have a peace bond against him, I have a copy of it, the police respond, there’s evidence there through your statement or whatever, witnesses or even the police may see him with you, they would lay charge under section 811 under the Criminal Code. Now it’s all well and good to say it’s indictable and it is a hybrid offence, which means it can be proceeded indictable of [by way of] summary, but it’s also an absolute jurisdiction offence, in other words a provincial court judge has absolute jurisdiction over that charge. You know, like, a person can’t go before judge or judge and jury, it’s an absolute jurisdiction charge. Police would lay a charge, I could lay a charge just on the violation of the peace bond itself. Okay? I could find you and your spouse in a peaceful setting sitting on a park bench, or you could be sitting on a park bench and your spouse could approach you against your wishes, you call the police, I could lay a charge on violating that recognizance under section 811 of the Criminal Code. That would be a criminal charge, if convicted that person would have a criminal record. (NS Police officer)
The applicant is expected to keep a copy of the order and notify the police immediately if there has been a breach:
Well, once the person is granted the peace bond by the courts they’re given a piece of paper that they should carry at all times so if the person does show up, with the order we can charge the person with breaching it. (NS Police officer)
We’ve had people before tell us that they didn’t think it was helping them that much but then we had to remind them that when they breach it they have to call us. (MB Police officer)
As mentioned in the previous section, in the eyes of the police it is sometimes difficult to charge a person under conditions of a section 810 recognizance if they are clever enough to circumvent the conditions imposed provided they are sufficiently vague or contain exceptions. There are techniques for skirting around the conditions on a peace bond that make it difficult for the police to make an arrest. One NS Lawyer related the following incident in which the client was terrorised by the respondent through a third person:
One that I had was a spouse who had phoned a close friend of my client’s and told her in the course of a long rambling conversation where he said a number of things about his ex-spouse that weren’t very complimentary, you know, ‘I have a gun’, ‘I’m going to go get a gun’. No direct threats just you know ... and this guy’s smart enough that, you know, my client felt that was on purpose that he did it that way because he knew he could skirt criminal law, but still get his point across. The friend would then call my client and tell her all about this and it would have its desired effect and make her very fearful. But there were no criminal charges that could be laid in that situation, but we were successful in getting a peace bond. (NS Lawyer)
Perhaps the greatest issue with respect to the enforcement of peace bonds (including those related to domestic violence) is the degree to which breaches are taken seriously by police and the courts. This is unclear:
… we treat these things as extremely important, we put them on CPIC (Canadian Police Information System), and they’re enforceable, and we’re recommending from the police point of view that there be a time limit of three years. (MB Police officers)
It’s just not taken seriously within the system. In our sense. I might be wrong and you might talk to someone who says no, no, that isn’t it, but that’s just not our experience. From the police it’s not often seemed like a big deal. (ON Shelter worker)
And a lot of people don’t see, they just see, well, what difference did it make? And there are multiple breaches. And it’s not that the police haven’t gone and charged the person for breach, they have indeed, but then it goes into the court system and it’s the court that takes it from there. So, it’s very frustrating. (NS Police officer)
One of the salient factors in hampering police and protected persons in cases of peace bond (or other injunctive orders) breaches is the absence of any reliable national registry system. Without easy access to peace bond information, including conditions imposed, it is much more difficult to check the veracity of or even know if someone has a peace bond issued against them.
In the preparation and research for the collection of data for this report, it became abundantly clear that the cataloguing and tracking of peace bonds was ad hoc and not standardised at the local level and, for detailed peace bond information, almost non-existent at the national level. Despite this, some persons interviewed believed that when a peace bond is obtained it is input into both local and national databases:
I’d say the advantage is the information is then available to the police and they know that it’s a serious issue. (NS Shelter Worker)
No contact, no communication, period, that’s it, no grey areas, that’s what makes it very enforceable, and they’re put onto the CPIC and they’re enforceable. (MB Police officer)
However, in other cases justice professionals were very much aware that an effective tracking system was absent:
And then, you know, in terms of procedures one of the problems is that after the peace bond is issued for some reason it’s not put on the computer service anywhere. So, you know, the police will know what the terms of an undertaking are because they can just call it up from their car. Peace bonds are more problematic because with paper they have to actually see it, if they don’t see it they don’t know what the terms are. That creates problems I think with enforcement. I don’t know if that fits into your procedure question. (NS Lawyer)
… Peace bond issues, keep in mind, peace bonds a lot of times are done, the police are never made aware of it, the court order is given and the court order is sent to the police and put up, sometimes we don’t even get copies of them. If the victim doesn’t have a copy you go to the courts to get a copy of it. So, I would dare say there were times when there was peace bonds being obtained, and being violated and that the police never became aware of. (NS Police officer)
If we look at ACCS peace bond data from Halifax and Hamilton courts, and compare this to police data or statistics, we find serious asymmetries. In the case of Halifax for 1998, 66 of 88 peace bonds (75%) reported as ‘private recognizances’ appeared in the police database. For 1999, this report figure dropped to 69 of 102 peace bonds (68%). In Hamilton, police statistics (not their database) includes ‘common law’ peace bonds, which results in a gross over-estimation of total peace bonds. In 1997, police statistics were 31 times higher than court reported section 810 recognizance issuances (587 to 19); in 1998, 17 times higher (301 to 17); and in 1999 over ten times higher (268 to 26).
A common misconception is that CPIC will record peace bonds onto its systems. However, CPIC policy is that unless the peace bond was accompanied with another substantive offence at trial, it is not entered because a section 810 recognizance issuance is not an ‘offence’.
Thus, at the WFVC, where it is common practice to couple an assault charge or conviction with a peace bond, the city’s CPIC report rate is 85.6% (see Table 11.5.1). In Halifax, where this is not done and instead an undertaking is issued, the CPIC report rate is only 1.3%. This report rate is so low because section 810 peace bonds are usually obtained by private parties through a J.P..
Source: CPIC files
It is clear that much of the jurisdictional variation depends on local practices and reporting policies. With the emergence of new domestic violence legislation and even more protection order options, a national protection order registry seems more necessary now than ever before.
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