Peace Bonds and Violence Against Women: A Three-Site Study of the Effect of Bill C-42 on Process, Application and Enforcement
The city of Halifax is a maritime coastal community that is a centre of provincial government, business and naval activity for Atlantic Canada. Current estimates place the population at 385,613 inhabitants. The Halifax Regional Police has 430 sworn officers, patrolling Halifax, Dartmouth, Bedford and environs of the municipality.
In the province of Nova Scotia, peace bonds are still used in cases of domestic violence, but according to all of the informants, this is becoming an increasingly rare occurrence due to changing enforcement policies. Since the mid 1980s, the proving has encouraged a pro-charge, pro-prosecution policy in cases of domestic violence. The police, in particular, are expected to take action by making arrests where there are reasonable and probable grounds to believe an offence has occurred:
I have to be honest that since the policy has changed in about ’96 or so in Nova Scotia here, they’ve instituted the pro-charge policy encouraging police officers to lay charges for, you know, criminal offences as opposed to relying on the self-help remedy; we’ve seen our numbers fall off, I’d say, fairly dramatically in terms of the number of women who are coming to us for this kind of remedy. (NS Lawyer)
Well, with the pro-charge policy that’s in place in the province there’s automatically, there’s a charge laid if that’s determined. (NS Police officer)
I’m not sure when it came into Nova Scotia, I transferred from Alberta, but we lay the charge now, we’re mandated to lay the charge. (NS Police Officer)
Halifax and area police officers repeatedly informed us that peace bonds were considered a last resort and that since the pro-arrest policy, officers always looked to lay charges:
If there’s evidence for a charge the police are not going to recommend a peace bond. (NS Police officer)
In fact, failure to lay charges could result in scrutiny from superior officers, and in the particular case of Halifax, a review of daily occurrences by victim services. Thus, most police interviewees saw section 810 peace bonds as only tangentially related to domestic violence cases. Peace bonds are seen as a ‘self-help’ remedy. Even the Halifax police record system catalogues peace bonds under the heading ‘private recognizance’ in the information system.
But peace bonds, mostly where police will get involved would be for acquaintances, brothers and sisters, neighbours or whatever, and if there’s not enough there, or even if there is enough there … but don’t want to proceed, or there’s not enough evidence to proceed under the Criminal Code then I as a police officer would recommend a peace bond. (NS Police officer)
The biggest change has been in the handling of the assault charges in terms of, you know, once the charge has been laid and the Crown takes it over, they go ahead with it, the peace bond by and large tends to be prosecuted by the individuals. (NS Judge)
The most likely route for the issuance of peace bonds in cases of domestic violence is via judge at trial or when a Crown must settle for a section 810 issuance where an assault case appears to be weak:
I often see them now where the Crown isn’t going ahead with an assault charge and they settle it with peace bonds. You’re talking in the context of family violence, right? … Which is surprising to me because it was sort of said that we will not use peace bonds as an alternative … (NS Judge)
Otherwise, applicants are usually on their own when it comes to peace bonds in Halifax. The process starts when an applicant goes before a J.P. and swears an information:
Sure, the person who’s applying goes to the Provincial Court Clerks Office, there’s a form now that the province uses where the applicant fills out the information, who they are, who the person is they want it against, the addresses. Then gives the particulars of the reason why they fear, you know, injury, or damage to property. That’s reviewed by a Justice of the Peace who then has the person swear out an information for a peace bond, and then a summons would be issued to the person they’re trying to get the peace bond against. Now, I’m not sure whether, then, the applicant has to pay to have it served. (NS Crown Attorney)
What’s interesting, the process of getting to the hearing is two steps: the Justice of the Peace and the court office would schedule an arraignment, and it’s usually a week or so once it’s sworn, when it’s at arraignment if there’s anything to be adjudicated, there’s a hearing or somebody wants to dispute it at that point, the judge who’s hearing the matter would then adjourn it for a hearing and that’s usually quite a significant delay. (NS Justice of the Peace)
The court clerk will attempt to schedule a trail within two weeks if the peace bond is being contested: “[a]nd they’ll try and get the trial done, or the hearing done within a week or two”. (NS Lawyer)
I would guess that sixty to seventy per cent consent at arraignment. (NS Justice of the Peace)
However, a particular problem arises if the respondent decides to be elusive. At the arraignment, if the respondent does not appear, an arrest warrant may be issued provided that he was serviced properly with a notice to appear including an affidavit of service. Without an affidavit of service, the judge will typically request that the police or sheriff re-try to serve the respondent. In metropolitan Halifax, the police charge a $35.00 fee for this service. These delays in obtaining a peace bond are counter-intuitive to the idea of a preventive order, especially in urgent or emergency cases.
From the perspective of Halifax police, shelter and justice personnel, if an order is truly urgent then an arrest should be made and the accused released with an ‘undertaking’.
Yes, and then there’s an undertaking because there’s a charge being laid. And I think that’s really, really good. (NS Shelter Worker)
Thus, a pro-arrest, pro-charge policy is being enforced and, at the same time, a temporary protective measure is being put in place by the court. By this logic, the teeth of the undertaking are sharper because the accused will have to appear to answer either assault or other charges at trial. It is in his immediate interest to desist and be peaceful in the interim.
Despite these tendencies that eschew the front-end use of peace bonds in Halifax, they are still used by a few applicants in cases of domestic violence from the start. In total, 36 per cent of peace bonds in the Halifax police database were ‘family violence’ related. And in such cases, evidence suggests that applicants are usually quite successful in getting them. One NS Shelter Worker reported that women she helped or knew that applied for a peace bond who were trying to escape their partners were almost always successful in getting one. In Halifax, the police place accused batterers on an undertaking as a temporary preventative measure.
I would say, yes. I can’t remember the last time I wasn’t successful. I don’t think that necessarily speaks to my skill or anything, but I think because it is a preventative type of remedy the courts are more likely to err on the side of caution. (NS Lawyer)
A recent change in Nova Scotia, which has no provincial domestic violence act, is the operation of night courts that can also dispense section 810 peace bonds. According to one NS Crown Attorney, the night court dispenses peace bonds alongside vehicle offences. It is unlikely, however, that this is an attempt to offer more immediate preventive remedies for battered women for all the enforcement and policy reasons stated previously.
Based on the Halifax police information systems listing of ‘private recognizances’ (N=233), seventy-six per cent of respondents issued peace bonds from 1998 to 2001 (to date of survey) were identified as men. Another 18.5 per cent were identified as women. We could not discern gender through first names for 4.8 per cent of respondents.
The average age of persons issued peace bonds in Halifax is 34.6 years (n=222). The average duration of peace bonds issued was 11.1 months and the median length was 12 months (n=228). Forty-six per cent (n=106) of respondents who were issued peace bonds in Halifax had prior records. They had an average number of 5.8 convictions on their record or a median number of three convictions.
|Violation of court order||3||1.3|
|Breach of recognizance||3||1.3|
* Does not add to 100 because only top frequencies listed.
Sixty-seven per cent of peace bond respondents (n=156) in Halifax were also facing other concurrent charges along with the issuance of the recognizance. Of these respondents, 15 per cent were facing two or more other charges. Table 8.2.1 demonstrates that the most frequent concurrent offence was assault (n=87), followed by threats (n=38) and aggravated assaults (n=5). Curiously, breaches of court order were concurrent charges (n=3) in a few cases indicating that one breached peace bond was being replaced by another issuance.
Most persons interviewed reported that the conditions imposed on peace bonds were typically “KPGB” (which means ‘keep the peace and be of good behaviour’) and refraining from contact with the applicant. We culled through the Halifax and CPIC databases to ascertain the most frequently issued conditions. As expected, ‘no contact’ and ‘KPGB’ were the most frequently listed ( see Table 8.3.1).
However, there was an overall lack of available information in police electronic files about conditions imposed. Fully 61 per cent of peace bonds entered onto the system had no conditions listed. In section 11.5 we more closely examine the issue of police tracking of peace bonds for all three jurisdictions.
|Keep the peace and be of good behaviour||30||12.8|
|Do not come within vicinity||12||5.1|
|Stay away from child(ren)||2||0.8|
|No conditions listed on police record||141||60.5|
* Does not add to 100 because of multiple conditions per case.
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