Introduction

Canadian citizens who feel their own, or their children’s lives, are being threatened by family members, strangers or an (ex) spouse for example, have the ability to apply for 1 of 2 ‘no contact orders’ offered to all Canadian citizens. These no contact orders are in existence to protect individuals from any rational and reasonable fear a perpetrator may be causing in their life. Anyone can apply; however those who do must provide adequate evidence to show how their life can/will benefit and how safe they will feel by placing a no contact order on the person who is causing them to feel unsafe.

Being granted an order depends solely on the situation, the evidence, and the severity surrounding the case. Once applied for, the victimized party is henceforth known as the “Informant” or the person who gives information, and the offending party is known as the “Defendant”, a person required to answer a legal action against them.

Peace bonds and restraining orders are the two types of no contact clauses that Canadian citizens can apply for. While they both essentially share the same characteristics, such as detailing certain conditions the defendant must abide by, the processes of applying for each no-contact order are quite different from one another. In terms of similar characteristics between the two orders, both are pursued by a victim against an offender if he or she threatens, stalks, or commits or threatens to commit a violent act against the victim. Both orders include rules/conditions that the offending party must remain at a minimum distance from the victim, and more specifically, that the offending party may not come into direct or indirect contact with that individual and/or their spouse at work, school, home or other places the victim would be known to go. Essentially, both orders are sought for similar reasons, and both share similar conditions placed on the offending party, but they are applied for and granted via different processes, for different levels of kinship (peace bonds, unlike restraining orders, can be issued to anyone even if not related), as well as for different set periods of time.

Peace Bonds

Peace bonds appear in section 810 of the Criminal Code. Section 810 includes special rules for applicants who reasonably fear that another individual may commit an act of terrorism, sexual offence against the applicant, or inflict serious personal injury to the applicant. The offending party, or defendant, can be anyone who is causing fear in the informant (ex. stranger, friend, work colleague, relative etc.).

Conditions of a Peace Bond

All peace bonds include a condition to keep the peace and maintain good behaviour, which includes factors such as:

  • The defendant may not possess a weapon of any kind,
  • The defendant cannot be within a certain distance of places where the informant may regularly be found or visit
  • The defendant may not directly or indirectly communicate with the informant or his/her spouse or child, unless the informant makes the decision to meet under specific conditions or situations to be named with their written consent.

Other conditions may include:

  • No communication whatsoever with the informant or their child;
  • A minimum distance of 500 metres from the home, school and workplace of the informant or their child;
  • No visitation rights to the address of the informant or child;
  • No communication and minimum distance except with the victim’s written revocable consent;
  • No communication and minimum distance except in accordance with family court law, and;
  • Strictly no possession of any firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition or explosive substance.

It is important to note that not all of these conditions will apply in all cases, and that additional conditions may also be added in accordance with specific circumstances.

Peace Bonds and the Safety of Children

If a person fears that a sexual offence may be committed against a child, they can apply for a peace bond against the person they fear will commit that crime.  Normally these peace bonds would also only be placed on the defendant for up to 12 months, but the judge could extend this period for up to 2 years if the person was convicted of a previous sexual offence against a child less than 16 years old. The application process for this type of peace bond is the same as any other peace bond application (described below). The conditions that could be applied in these circumstances include those mentioned above, as well as the additional conditions of:

  • prohibit the defendant from engaging in any activity that involves contact with persons under the age of 16 years, including using a computer system for the purpose of communicating with a person under that age;
  • prohibit the defendant from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground or playground;
  • require the defendant to participate in a treatment program;
  • require the defendant to wear an electronic monitoring device,
  • require the defendant to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge;
  • require the defendant to return to and remain at his or her place of residence at specified times;
  • require the defendant to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance.
Application Process

The application process for obtaining a peace bond varies from one province to another. Essentially, an individual must either (1) seek out a Justice of the Peace (JP) at their local/provincial courthouse, and provide sufficient evidence before a bond can be considered, or (2) apply at their local police station.

The general application process for each province is as follows:

  • British Columbia – You must provide an initial statement to the police prior to trial proceedings.
  • Alberta – You may seek help at your local courthouse OR police station to obtain a peace bond.
  • Manitoba – You may seek help at your local courthouse OR police station to obtain a peace bond.
  • Saskatchewan – You must provide an initial statement to the police prior to trial proceedings.
  • Ontario – You may seek help at your local courthouse OR police station to obtain a peace bond.
  • Quebec – You may seek help at your local courthouse OR police station to obtain a peace bond.
  • New Brunswick – You must provide an initial statement to the police prior to trial proceedings.
  • Nova Scotia – You may seek help at your local courthouse OR police station to obtain a peace bond.
  • Newfoundland – You may seek help at your local courthouse OR police station to obtain a peace bond.
  • Prince Edward Island – You, or a police officer on your behalf, must apply through the provincial court system in your area. Provincial courts can be found in Georgetown, Charlottetown and Summerside.
  • Yukon – You must seek the help of your local RCMP branch.
  • Northwest Territories – You must seek the help of your local RCMP branch.
  • Nunavut – Application Forms are provided by local RCMP or Online Application Forms are available.

The JPmust believe on reasonable and rational grounds that the fear is plausible, and that someone in a similar position would also be afraid. Seeing as how individuals cannot make emotional pleas without evidence, the informant should:

  • Document every instance where the defendant stalked or threatened the informant;
  • Keep any evidence of abuse such as hospital records, photographs of violence or destruction to property, etc;
  • In the case of a partner/ex-partner, if applicable, evidence of mistreatment of the child or children.

This type of evidence provided by the informant is very convincing and solidifies the claim that one reasonably fears for their safety. The defendant however, will have the opportunity to rebut all arguments made against him or her, and attempt to offer a rational explanation behind their actions. People applying for a peace bond do not need to apply with a lawyer, and in certain cases a crown appointed councilman may be assigned to help those applying.

The JP, acting as the neutral arbitrator in the application process will decide whether or not the peace bond should be issued. If approved, “a peace bond is a court order under the Criminal Code of Canada (section 810) made by a provincial court judge, or an agreement that the person makes with the court, for a period of up to 12 months”. Individuals looking to apply for a peace bond in cases where people have been irritating or annoying them will not be approved for a court order. This type of behaviour or harassment is covered in a separate section of the criminal code (section 264). Only when fear is elicited as a result of the defendant’s actions may a peace bond even be considered (accompanied by sufficient evidence); annoyance is not a just cause.

If a peace bond is granted, they generally expire after a 12 month period, but during that time, they act on a National level and are applied across Canada. Only in child offender cases may the judge potentially set the peace bond to 2 years, especially if the offender has been recorded before. While a peace bond falls under the criminal court system, it does not add a publicly visible criminal record to its subject (as of 2011). Only at the time that the offender breaks the no contact order would there be criminal or punitive intervention. More so, breaching a condition laid out in a peace bond is considered a criminal offence under section 810.2 of the Criminal Code of Canada, punishable by arrest or criminal charges. If a bond is breached, the informant should immediately go to a safe place. They should have a copy of the order with them if possible and call the police. The offender may be charged with the initial criminal offence, if any, for which consequences may be more severe if there was a peace bond placed over the defendant at the time. For example, if the defendant broke into an informant’s home, he or she may be charged with breaking and entering as well as with breaching the peace bond, which in turn may increase the severity of the punishment for the crime of breaking and entering. If no criminal offence had taken place during the breach of a peace bond, the violator can still be subject to an arrest or fine for the breach. Until a breach occurs, the peace bond does not appear on an individual’s criminal record.

When an individual begins the process of applying for a peace bond, they should be well-aware that certain information is needed, aside from the relevant evidence in their case. The name, address and telephone number of the informant is needed, and more importantly, the name, address and date of birth of the defendant is needed. More so, the rationale for believing or fearing that an injury might occur, and the verbal threats or description of the incident is part of the application process as well; those applying should provide as much detail as they can. The application also features an area for a court date to be set up, most likely to be filled out and organized by the Justice of the Peace.

It was noted above that having the address of the defendant was very important in the application process. The reason for this has to do with the application process of a peace bond, as the court’s sheriff has to serve the defendant with the papers within a certain timeframe. The sheriff has 3 attempts to serve the offender the papers before the application is void and placed in limbo. A new address (work/home address) and a specified time when the offender will be there is needed to begin the process again. If another 3 attempts do not work, the application is once again voided and placed in limbo, meaning that at this point, no order will be approved. After this second round of attempts, the Crown now becomes “victimized” by the defendant and they are allowed to use the offender’s criminal history as an aid when placing a warrant out for the defendant. The goal is to ultimately bring in the defendant and have them understand and accept the conditions that the peace bond (or restraining order, as will be seen shortly) has over them.

Restraining Orders

Restraining Orders and Peace Bonds Compared

A restraining order places similar conditions on a person, similar to those outlined in the Peace Bond section, which an offending party must abide by. This legal order restricts the behaviour of the person who is threatening or stalking the informant. The most notable difference between a restraining order and a peace bond is that a restraining order is set out in family court. More so, unlike a peace bond which can be called into action against any potential offender, a restraining order only applies to partners, ex-partners and family members of the informant. Finally, the length of time that a restraining order is valid for differs from peace bonds; whereas peace bonds expire after 12 months, restraining orders can last for as little as days to as long as months (depending on the severity of the case, a restraining order may be granted permanent status).

Perhaps the most obvious difference between a restraining order and a peace bond is the geographical area in which they are valid. Restraining orders  are made in family court and are often only valid in the province in which they are made. To obtain an order valid throughout Canada, the abused spouse and their family may apply for a peace bond. A peace bond is not obtained through family court (as a restraining order is), but through the criminal code. Thus, the order will keep the informant protected from the defendant throughout the duration of enactment, and on a national level as well, not only limited to provincial boundaries.

Application Process

Usually applications for restraining orders are made as part of larger court proceeding under the Family Law Act (FLA), but individuals are also permitted to apply for only a restraining order. When applying for a restraining order, unlike peace bonds, you do not have a choice of proceeding with or without a lawyer. Hiring a lawyer is a requirement when applying for restraining an order due to the involvement of the family court. The only negative effect of hiring a lawyer is that the individual informant will be responsible for the lawyer’s fee, unless they qualify for legal aid. The process can take many months and will require a formal submission including evidence and a hearing at which both sides can make their claims.

A judge needs certain information before s/he can grant a restraining order. Similarly to a peace bond, individuals cannot make emotional pleas without evidence. Informants should take the same precautions they would do when applying for a peace bond. Precautions such as documenting behaviour, keeping hospital records and photographs are just a few tactics that should be done by informants before applying for a restraining order.

A restraining order can include conditions that the defendant must follow, based on the particular circumstances of the case. If the offending spouse doesn’t obey the order, he or she may be arrested by police without a warrant, and can face a fine or time in a prison. Like peace bonds, when the conditions of the order are broken, the defendant can be charged with a criminal offence. However, until a breach is made, both the restraining order and the peace bond will not appear on a defendant’s criminal record. It is only when the conditions have been broken that they would be applied to the criminal record of the offending party.

While there is no cost to apply for either a peace bond or restraining order, a $200 filing fee is required to those seeking a restraining order. More so, the price of hiring a lawyer should be taken into consideration when applying for a no contact order. There are however, exceptions to those who qualify for legal aid.

“Ex Parte” Restraining Order

Should an individual fear for their safety immediately and feel they cannot wait for a restraining order to be approved, individuals can ask the court for an “ex parte” restraining order during the process of acquiring a full restraining order. This may be required if the defendant has been let out of jail, or there is some other immediate reason that causes the informant to fear for their safety or children’s safety. In such a case, the offending party is notified of the application, and the judge can issue the order immediately upon being convinced through reasonable grounds and evidence that the order is necessary. This type of order is usually only in effect for 24 hours to one week, usually to assist individuals find safety, while the offending party is notified and given the opportunity to tell their side of the story.

Conclusion

Individuals who fear they are in a situation where they may be victimized should seek help immediately. Even though the court or application process may take some time, remaining safe and being persistent is a vital component to shielding oneself and their children from becoming victims. Police assistance is always available and these are the tools the criminal justice system provides to those who need to further protect themselves. These orders are available for a reason, and victims should not look at the application process as negative. Waiting times between 2 to 3 months can be a deterring factor, but there are options for immediate help should it be needed (ex. an ex parte restraining order).

 

Last modified: July 14, 2016

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