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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON January 16, 2002

A remarkable tool in preventive justice

Whenever I hear of a crime involving violence between spouses, family members or neighbors, I often ask myself if it couldn't have been prevented had the victim obtained a restraining order. Although such orders are never one hundred per cent foolproof they can do much to prevent violence.

Unfortunately, when it comes to this type of preventive justice, very few victims, real or potential, are familiar with the unusual criminal procedure which allows a court to intervene before a crime is committed and without the laying of formal charges. They aren't alone, police officers and lawyers are frequently ill acquainted with this remarkable and effective tool.

Without having to engage the full scope of the criminal justice process, the procedure has been available for decades to any person who " fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or child or will damage his or her property”.

Only six years ago, Parliament widened the scope of this preventive measure so as to include children under the age of fourteen years who are in danger of being sexually molested. Quite clearly, our lawmakers wanted to protect a wide range of potential victims before it was too late.

While the Criminal Code officially defines the measure as a "Surety to keep the peace", defense attorneys and prosecutors simply refer to it as an " 810 ", based on the section number in the Code. The procedure is unique in that it neither creates a criminal offence nor provides for a conviction or a sentence. Even when the allegations are proven the defendant cannot be incarcerated unless he or she fails to abide by the order of the court. At the same time it remains one of the very few procedures, which can be initiated and directed by any ordinary citizen and without the participation of a prosecutor. In fact, since the mid 90s the policy in the Province of Quebec goes one step further - prosecutors are instructed not to intervene whenever a complainant wishes to initiate the procedure.

All that is required is the signing of specially drafted “information” before a justice of the peace, that includes the wording of section 810 and which is available at every courthouse. Although it must be sworn before a justice of the peace, it can be done so by the complainant or anyone acting on his or her behalf, such as a police officer, a member of their family or simply a friend. If and when the reasons alleged by the complainant are considered sufficient at face value by the justice of the peace, the defendant is ordered to appear in court. Since the information is not a formal charge there is never any question of having to plead guilty or not guilty. Once the inquiry begins before a judge, the complainant gives under oath the reasons for his or her fears. The defendant has the right to cross-examination and to give evidence. Both parties are entitled to call witnesses and be represented by an attorney.

The major distinction with an ordinary criminal trial is that the inquiry is not aimed at determining whether the defendant is "guilty". The presiding judge has only has to decide whether the evidence indicates that the informant or complainant had reasonable grounds for his or her fear. In considering the reasonableness of the informant's fears and the likelihood that the defendant will carry out his threats the judge may hear evidence of the defendant's past actions even though there were never any charges. The evidence may include implied threats, stalking- like behavior and various types of harassment that would not normally be admissible as evidence during a criminal trial, much less, justify a criminal conviction. This explains why the procedure can be effective in cases where the threats are only implied.

If the judge is satisfied with the proof, the defendant is then required to sign a "recognizance" which originates from the Latin word "recognoscere", meaning an obligation entered into on the record before a judge requiring the performance of an act. In practice this means that the defendant must sign the equivalent of a bond, with or without a cash deposit, to keep the peace, be of good behavior and to comply with all "reasonable "conditions for a period of up to 12 months. When determining the appropriate conditions the judge seeks above all to secure the good behavior of the defendant so as to prevent an offence from being committed. In practice, the conditions usually include a prohibition to communicate with the complainant as well as being within a specified distance of the complainant's residence. More often than not a prohibition from possessing a firearm is also tacked on.

Although an order to enter into a recognizance is not the equivalent of a sentence, no defendant should take it too lightly. The mere refusal to sign the bond can lead to a maximum period of incarceration of 12 months. The same chilling consequence awaits any defendant who fails to comply with any one of the specified conditions. All that is required is a criminal charge authorized by a prosecutor, followed by a conviction.

While it is not always possible for the police to enforce such conditions the average defendant is fully aware that in the event of any retaliation against the complainant, he or she will necessarily become the prime suspect. In most cases this knowledge alone serves as a genuine deterrent against breaking the court-imposed conditions. While there may very well be a danger that our courts could be tied up with an avalanche of restraining order applications if every citizen was fully aware of this unusual procedure, the savings to society resulting from fewer crimes would clearly outweigh the additional court costs.

However, without an extensive government program aimed at educating the public on this unique procedure, innocent citizens will continue to be victims of crimes that could have been prevented.