Partner Assault
In many instances, when the Crown agrees to withdraw a criminal charge, it does so on the condition that the accused person enters a peace bond first.
A peace bond is not an admission of guilt and does not result in a finding of guilt. It is essentially a promise to the court by the accused person to keep the peace, be of good behaviour, and follow the conditions set out in the peace bond.
The court derives its authority to order an accused person into a peace bond either by operation of common law or through the provisions of the Criminal Code of Canada. For this discussion, it is unnecessary to distinguish between the two types of peace bonds.
In cases involving allegations of domestic assault, the Crown almost always makes the withdrawal of a charge conditional upon the accused person first entering a peace bond. Where the accused refuses to do so, the Crown will typically proceed with the charge. Though breaching a peace bond can carry consequences, in most instances, the withdrawal of the criminal charge in exchange for entering a peace bond is an appropriate and acceptable result for a client – the peace bond eventually expires, and most people move on with their lives.
For people facing domestic assault charges, the consequences of entering a peace bond might be greater. There are typically two factors to consider in a domestic assault case when contemplating a peace bond that don’t exist in other types of cases.
The first concerns the unique nature of the relationship between the accused and the complainant. There is a history there, and many will continue to be involved in each other’s lives even after the domestic charges have been dealt with. In cases where the accused maintains that the allegations against him are untrue and fabricated by the complainant, a peace bond can leave the accused in a vulnerable position. If the complainant truly made up the allegations, nothing is stopping her from doing so again. In this situation, the accused person is not only vulnerable to new criminal charges but also faces potential charges for breaching the peace bond.
It doesn’t take much to allege a breach of a peace bond. For instance, most peace bonds will contain a provision that the accused person is not to have contact with the complainant except with her written and revocable consent. In these circumstances, a complainant doesn’t even have to allege criminal behaviour to get the accused person into trouble. She could merely allege that he continued to contact her after she told him not to.
Moreover, the peace bond tends to create a presumption that, last time around, the accused did something wrong (after all, if he didn’t, then why would he sign a peace bond) but got a break. As a result, the system tends to treat the accused person with greater prejudice.
The second factor to consider in the context of a domestic assault case is whether there are separate ongoing family court proceedings. In contested family court proceedings, peace bonds can cause problems for the person who agreed to enter one. This typically happens in two ways. Firstly, the complainant’s family court lawyer will often claim that there is a reason for the court to be concerned about the other party’s behaviour (i.e. the former accused in the criminal proceedings) because otherwise he would not have been ordered into a peace bond. This argument can then be extended to claim that the other party should have only limited or supervised access to the children due to concerns about their behaviour.
The second way a peace bond may work against an accused person in family court is through enforcement of its conditions. For instance, if there is a condition that the accused has no contact with the complainant except with her written and revocable consent, she can choose to withhold that consent. If she happens to be living in the matrimonial home at the time, she will maintain sole possession of it (until the family court determines what is to be done with it), since the accused risks breaching his peace bond by returning there while the complainant is still living there.
Bottom line: In the context of a domestic assault case, careful consideration should be given before agreeing to enter a peace bond.
Original Text By: Tushar K. Pain
