Thursday, May 31, 2012

Withdrawals (and peace bonds) are irrelevant as a consideration on bail

R. v. Krasniqi, [2008] O.J. No. 5815 holds that withdrawals (and peace bonds) are irrelevant as a consideration on bail because they are simply unproven allegations and absent an admission about those allegations from the accused. Specifically:

33     The Crown argues that these cases are authority for the proposition that the court can consider Detective Banks' outline of previous orders of recognizance entered into by the accused to keep the peace and be of good behaviour at an application for judicial interim release Crown counsel says that such evidence falls under the category of "credible and trustworthy" evidence which contains hearsay but is led through a reliable source, namely the investigative officer or officer-in-charge of the case who has direct knowledge through police notes, synopses, copies of recognizance and other documents, a practice approved of in our courts which allows bail hearings to proceed expeditiously while protecting the accused's right not to be denied bail without just cause under the Charter: see R. v. John [2001] O.J. No. 3396 (Ont. Supt. Ct.). Counsel submits that that information is relevant to the issue of whether an accused is likely to comply with court orders and whether he is likely to pose a risk to the community.

34     The defence position is that evidence of court ordered recognizance entered into by an accused should not be considered as a peace bond, is reflective only of allegations and nothing more.

35     Section 810 of the Criminal Code provides that an information may be laid by a person who fears on reasonable grounds that another person will cause personal injury to him or his spouse or partner or child or will damage property. If the justice is satisfied that the person who laid the information has reasonable grounds for his fears, he may order that the defendant enter into a recognizance with or without sureties to keep the peace and be of good behaviour for a period no greater than twelve months and comply with reasonable conditions prescribed in the recognizance. This provision is sometimes used where an accused person faces criminal charges, there may be problems in proving the allegations and a recognizance offers some measure of ensuring compliance with conditions for up to a twelve month period. Whatever the reason, the criminal charges are withdrawn and a new information laid in accordance with section 810. The underlying facts supporting the charges remain unproven allegations.

36     In the case of Reid v. Neale [1996] N.S.J. No. 209 (N.S.C.A.), the court makes brief reference to the effect of a peace bond as follows:

    • "The peace bond was merely an undertaking to keep the peace and be of good behaviour and to have no further contact with his former common law spouse, Donna Reid, her children, property or one of her neighbours. It is not an acknowledgement that Mr. Neale broke the law in any way nor that he gave Ms. Reid reason to fear him. It was signed by him voluntarily on the advice of counsel, and there was no finding of any wrongdoing on Mr. Neale's part. The relationship had broken down, and he was willing to keep away from her.

37     Section 518(1)(c) sets out the specific categories of evidence related to an accused's criminal antecedents that a court can consider on a bail hearing. In light of the provision, I am of the view that Parliament intended that only those categories of evidence should be reliable and relevant to the issues at hand. While Parliament has also said that credible and trustworthy evidence may be considered, it is my view that relates to evidence other than that having to do with the accused's experience in the criminal justice system. I agree with the defence that those situations involving Mr. Krasniqi entering into a recognizance to keep the peace subject to conditions where the recognizance has expired prior to the charge before the court are not to be considered at a bail hearing. They constitute mere allegations of charges never proven. The charges were withdrawn, so far as I have been advised, Mr. Krasniqi made no admission of guilt and there has been no finding of wrongdoing. Mr. Krasniqi is entitled to the presumption of innocence regarding those criminal charges.

38     Mr. Krasniqi has no criminal record as he has never been convicted of a criminal offence. However, that he has charges pending at the time of this charge or the fact that he was on a recognizance for twelve months to keep the peace and be of good behaviour subject to conditions and the order is still in existence at the time of this charge are admissible and relevant facts that may be considered in the application.


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