Peace bonds – section 810.011 of the Criminal Code

Peace bonds (more technically, “recognizances on conditions”) are essentially restraining orders.  They are relatively commonplace in a non-terrorism context. After 9/11, peace bonds were extended to a terrorism context. Section 810.011 of the Criminal Code dictates that “A person who fears on reasonable grounds that another person may commit a terrorism offence may, with the Attorney General’s consent, lay an information before a provincial court judge.”

The judge can order a person to sign a peace bond (a recognizance to keep the peace) for a period of not more than 12 months. If the person was convicted previously of a terrorism offence, the judge can order that the person enter into the recognizance for a period of not more than five years. If the person fails or refuses to enter into recognizance, the judge can commit the person to prison for a term not exceeding 12 months.

The judge can also add any reasonable conditions to the recognizance, such as:

(a) to participate in a treatment program;
(b) to wear an electronic monitoring device, if the Attorney General makes that request;
(c) to return to and remain at their place of residence at specified times;
(d) to abstain from the consumption of drugs and alcohol;
(e) to surrender firearms and other weapons;
(f) to surrender their passport; or
(g) to remain in a specified geographic location.

A breach of the recognizance is a criminal offence liable to imprisonment for a term of not more than four years.

Preventive detention – section 83.3 of the Criminal Code

There exists another form of peace bonds (or recognizance with conditions) in the Criminal Code: section 83.3, or what is commonly known as preventive detention. It states the following: “The Attorney General’s consent is required before a peace officer may lay an information before a provincial court judge if the peace officer:

• believes on reasonable grounds that a terrorist activity may be carried out; and
• suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is likely to prevent the carrying out of the terrorist activity.”

The judge can order a person to sign a peace bond for a period of not more than 12 months. If the person was convicted previously of a terrorism offence, the judge may order that the person enter into the recognizance for a period of not more than two years. If the person fails or refuses to enter into recognizance, the judge may commit the person to prison for a term not exceeding 12 months. A breach of the recognizance is a criminal offence liable to imprisonment for a term of not more than four years.

This provision was introduced with the Anti-terrorism Act of 2001. As best we can tell, it has not been used yet showing it is not needed to prevent terrorism offences. It is subject to a sunset clause every five years because it is understood even by legislators to be a serious restriction on people’s Charter right to liberty. In March 2007, there was an attempt by the minority Conservative government to renew that provision – alongside the investigative hearing provision – but the motion failed. The Liberals voted against the reinstatement of these provisions in 2007. Bill S-7, introduced in 2013, proposed to reinstate the two provisions. It passed this time with the support of the Liberals.

C-51: Lowering the threshold for deprivation of liberty

The Anti-terrorism Act of 2015 (Bill C-51) lowered the existing thresholds for peace bonds (section 810.011) and preventive arrest (section 83.3) and lengthened the amount of time someone can be held without being charged, while suggesting to judges a new range of conditions. Allowing individuals to be subject to severe restrictions on their liberty without a criminal charge – much less a conviction – is already permitted under existing Criminal Code provisions. These measures are extraordinary and should be permitted only in the most exceptional cases, but C-51 substantially broadens the state’s ability to control an individual’s liberty without any criminal charge or conviction, and with minimal evidence of any criminal plan or intention by lowering the threshold for a preventive arrest from “will commit” a crime to “may commit” a crime.

University of Ottawa national security law professor Craig Forcese says that: “Whenever standards of evidence are this relaxed, the chance of false positives increases. Therefore, peace bonds are vulnerable to overreach. In that respect, they may prove too strong, wrapping the wrong people into their stifling embrace.” Peace bonds “won’t necessarily stop a determined, dangerous person” who is truly intent on doing harm. On the other hand, it’s potentially too aggressive a measure for someone who may never actually gravitate to the feared conduct,” says Forcese. Forcese also discusses how easy it could be to breach the “onerous” conditions of a peace bond, which could mean going to jail for behavior that wouldn’t be considered criminal in any other context. Simply walking into a room with a computer when one is not supposed to be in a room with computers, for example, would be considered a breach.

Bill C-59 (2019)

Bill C-59, the National Security Act, 2017, was adopted in June 2019. It modified investigative and preventive detention in important ways:

• Investigative hearings – which were actually introduced with Canada’s first Antiterrorism Act in 2001 – have been repealed.
• Thresholds for preventive detention, which were lowered with Bill C-51, have been increased. The change would ensure that an arrest is « necessary» to prevent a crime, rather than simply « likely » to prevent a crime.
• We believe that this change should have also been applied to peace bonds, which also saw the threshold for their use reduced with Bill C-51.

How often have they been used?

According to Forcese, there has been 16 terrorism peace bonds signed since the original 9/11 law.  This number is based on December 2015 reporting by Stewart Bell.  Mr. Bell was in turn basing his reporting on a figure from Public Prosecution Services of Canada: in 2015, “police have sought terrorism-related peace bonds against nine defendants in four provinces, according to figures provided by the Public Prosecution Service of Canada.”  In addition, we know that there were at least 6 peace bonds before this date (although it is possible that there were 8, as noted below).  There have been 4 peace bond processes underway in 2016, that he is aware of.  Driver has now in fact agreed to the peace bond — a perfect record it seems of the Crown not having to take any peace bond matter to full adjudication in court. Another, against Kevin Omar Mohamed, has now been abandoned in favour of outright criminal charges.  Another — Habib — has morphed into criminal charges, but reportedly there is still a peace bond in the mix (a prospect Forcese and we can’t explain and find puzzling and wonder if is true).  And one more just concluded with a peace bond (Elabi) that, despite an apparent typo in the reference to the Criminal Code section, was about terrorism.

Update: On April 21st, two men were arrested arrested by the RCMP on terrorism peace bonds. They have made a brief appearance in court and will return to court in a month. Their lawyer has yet to know what are the allegations against them.

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Sources

Criminal Code, Section 810.011, Fear of terrorism offence: http://laws-lois.justice.gc.ca/eng/acts/c-46/page-203.html

Criminal Code, Section 811, Breach of recognizance: http://laws-lois.justice.gc.ca/eng/acts/C-46/page-206.html#docCont

Criminal Code, Section 83.3, Recognizance with Conditions: http://laws-lois.justice.gc.ca/eng/acts/C-46/page-18.html#docCont

Vice News, When Canadian Police Can’t Charge People for Terrorism, They Use Peace Bonds: https://news.vice.com/article/when-canadian-police-cant-charge-people-for-terrorism-they-use-peace-bonds

Craig Forcese, Antiterror Peace Bonds In A Nutshell: http://craigforcese.squarespace.com/national-security-law-blog/2016/4/1/antiterror-peace-bonds-in-a-nutshell.html