The 810 recognizance process begins with the swearing of the information, after which a summons for the Defendant/s is issued, and then the hearing itself (commonly referred to as a show cause hearing, as the Defendant is given an opportunity to show cause why the recognizance should not issue).
Principles applicable to s. 810 applications
English statute and common law conferred upon a justice of the peace a discretionary power to subject individuals to an order binding over an individual to keep the peace and to be of good conduct where the justice apprehended that these individuals would likely breach the peace. In this one instance the English common law allowed a restraint on liberty of individuals where no offence had been proven. This power was preventive rather than penal in nature; its purpose was to maintain order and preserve the peace. Generally criminal law is penal in nature based upon proof of the offender having committed an offence. Section 810 of the Criminal Code and its predecessor sections carry on the tradition of preventive justice.
R. v. Soungie, 2003 ABPC 121 (CanLII), at para 5.
Section 810 is preventive in nature protecting the applicant in appropriate circumstances from future harm to the applicant, the applicant’s spouse, the applicant’s common law partner, the applicant’s children, or future damage to the applicant’s property.
In making an order under s. 810 the Judge is asked to restrain an individual because of likelihood of future harm.
R. v. Soungie, at para 22.
Laying the Information
To lay an information, the applicant must swear that he or she has a fear that the defendant will cause personal injury to the applicant, the applicant’s spouse, the applicant’s common law partner, the applicant’s child, or damage the applicant’s property: s. 810(1).
In s. 810(3) the Judge must be satisfied there are reasonable grounds for the fear.
The Show Cause Hearing
Burden of persuasion and standard of proof
The onus of persuasion is upon the applicant. The applicant must satisfy the Judge on the balance of probabilities of the grounds for the issuance of a recognizance.
The Applicant’s Subjective Fear and the Objectively Reasonable Grounds Supporting that Fear
Before an order can be made against the defendant, two elements must be established in evidence
(1) The informant actually fears that the defendant will cause personal injury to him, his spouse, his child, or will damage his property, and
(2) Reasonable grounds exist for the informant’s fears.
R. v. Banks, 1995 CanLII 5974 (SK QB).
Unless both elements have been proven the justice has no jurisdiction to make the order.
The first requirement is that the applicant have such a honest and actual fear. The absence of proof that the applicant has such will mean there is no basis upon which a recognizance can be issued. Obviously, it is preferable that the applicant articulate the fear but the failure to articulate does not necessarily mean the fear is not present. The surrounding circumstances can give rise to an inference that the fear exists:
J.H. v. W.B. (2001), 2001 YKTC 502 (CanLII), 44 C.R. (5th) 39 (Yuk. Terr. Ct.).
Personal harm in this context includes fear of psychological harm.
R. v. McCraw (1991), 1991 CanLII 29 (SCC) 7 C.R. (4th) 314 (S.C.C.):
The term “bodily harm” referred to in s. 267 of the Criminal Code is defined as “any hurt or injury”. Those words are clearly broad enough to include psychological harm.
Reasonable Grounds to Fear
The phrase “fears on reasonable grounds” in s. 810 equates to a belief, objectively established, that the individual will commit an offence.
The test requires the Judge to apply the perception of the reasonable person in a similar situation. The Judge is compelled to use logic, common sense, and common experience in making that determination.
R. v. Soungie, at para 19.
The objective grounds must be triggered by some action or omission by the defendant or that can be attributed to the defendant. Those grounds are often particularized in the information.
R. v. Soungie, at para 21.
Because s. 810 by its very nature requires an exploration of the context of the fear held by the applicant evidence of past conduct even past misconduct is admissible.
R. v. Soungie, at para 28.
To limit the court to an investigation of matters known only to the informant could in many cases defeat the purpose of the section. The actions of the defendant in the past, whether he is a peaceable or violent man, may well assist the Court in determining the reasonableness of the informant’s fears and the likelihood that the defendant will carry through his threats.
R. v. Patrick (1990), 75 C.R. (3d) 222 (B.C. Co. Ct.) at p. 228.
The Judge is not asked to predict future behaviour; rather, the Judge must be satisfied from the evidence the likelihood of future harm or damage. The quality and strength of the evidence must be sufficient to satisfy this likelihood.
Deprivation of liberty
The jurisprudence also supports the view that a defendant bound by an 810 recognizance is deprived of her liberty within the meaning of section 7 of the Charter.
See for instance, R. v. Budreo (2000), 2000 CanLII 5628 (ON CA),142 C.C.C. (3d) 225 (Ont. C.A.).
Any order made is not a lifelong injunction; it can last no longer than a year and may be renewed only after an entirely new hearing.
A person subjected to a s. 810 order may appeal the order and may, at any time, seek to vary the conditions.
Section 810does not create an offence in law but a mechanism whereby the defendant is placed on a recognizance to keep the peace and be of good behavior.
Re Dhesi and the Queen(1983), 1983 CanLII 338 (BC SC), 9 C.C.C. (3d) 149 (B.C. Sup. Ct.).
Although the “evidence” the judge relies on might include hearsay, a recognizance could only be ordered on evidence that is credible and trustworthy.
Budreo, supra, at paragraph 53.
Summary Conviction Procedure Expressly Incorporated
Section 810(5) incorporates by reference all of the provisions relating to summary conviction offences generally. Section 795 makes the provisions of Part XVI apply to summary conviction offences “with such modifications as the circumstances require”.
Thus, courts have found that justice of the peace can issue an arrest warrant to compel the defendant’s appearance to answer to a s. 810 information and where an individual escapes he could be found guilty of escaping lawful custody.
Also, the bail sections of the Criminal Code are applicable to the defendant’s release.
R. v. Wakelin (1992), 1991 CanLII 7947 (SK CA), 71 C.C.C. (3d) 115 (Sask. C.A.).