SUPREME COURT OF Nova Scotia
Citation: Allen v. R., 2023 NSSC 58
Date: 20230221
Registry: Halifax
Docket: Hfx No. 516140
Between:
Michael Louis Allen
Appellant
and
His Majesty the King
Respondent
DECISION
| Judge: |
The Honourable Justice Jamie Campbell |
| Heard: |
February 2, 2023, in Halifax, Nova Scotia |
| Counsel: |
Zeb Brown, for the Appellant Rachel Taylor, for the Respondent (Christie Allen) |
By the Court:
[1] This is an appeal from the decision of the Justice of the Peace to grant a Section 810 recognizance, known as a Peace Bond. The appellant, Michael Allen consented to the issuance of the Peace Bond and wishes to withdraw that consent so that the matter can be heard on its merits. Mr. Allen argues that his consent was not informed.
[2] At the hearing by telephone on June 8, 2022, the Justice of the Peace issued a Peace Bond requiring Michael Louis Allen to keep the peace and be of good behaviour, to have no contact with Christie Allen, except through a lawyer and except for arranging visitation with the children and to remain away from 6679 Highway 10, New Albany Nova Scotia, except when picking up or dropping off the children.
[3] Christie Allen had filed a Summons informing Mr. Allen that she was applying for a Peace Bond. She alleged that Mr. Allen had caused her to fear personal injury to herself and her children. The document says that Mr. Allen uttered the following words:
I will tow this car off the fucking property. I will move back into the home. I will have the sea can towed next week if padlocks are removed again.
[4] Ms. Allen said that Mr. Allen backed up his truck to her partner’s car and blocked him in the driveway. She said that he was extremely agitated and threated to tow away the car. She said that Mr. Allen tried to enter the house but that she got to the door first and locked it. Ms. Allen said that Mr. Allen threatened to move in and threatened to move the “sea can” which is a shipping container kept on the property. She said that Mr. Allen locked her out of the storage area and refused to remove the locks. She said that she had made numerous calls to the police for entry into her home, threatening behaviour and leaving a noose in her basement.
[5] Those issues were not contested at the telephone hearing before the Justice of the Peace. Nether party was represented by counsel. The Justice of the Peace, Bruce McLaughlin, introduced himself. He noted that it was the first time that the matter was before the court and asked Ms. Allen if she intended to proceed. She said that she did. He asked Mr. Allen if he was prepared to consent to enter into the Peace Bond. Mr. Allen asked what that meant. Justice of the Peace McLaughlin explained that it meant that Ms. Allen was looking for a Peace Bond and that could be a result of a successful hearing that would be scheduled for some time in the future or on the other hand, if Mr. Allen was prepared to enter into it voluntarily, which would mean no contact with Ms. Allen and other things, it could be done that night. There would not be a hearing “but that would mean that you would be voluntarily entering into a Peace Bond”.
[6] Mr. Allen replied “Okay”. To that the Justice of the Peace asked, “So you are prepared to do that?” And Mr. Allen said “Yes”.
[7] Ms. Allen was asked what she was looking for. Through the course of the hearing the parties spoke back and forth with the Justice of the Peace about the terms. And the Justice of the Peace explained those terms to Mr. Allen as they were developed. Mr. Allen continued to talk about whether the current divorce arrangements were financially viable for him. The Justice of the Peace explained that those issues were matters for the Family Court. He explained again that this was an application by a person who was claiming that she had a reasonable fear for her safety and that of her children and her property and it was not about whether Mr. Allen could or could not afford the divorce. At one point the Justice of the Peace said that if something were not arranged in the next 15 seconds, he was going to set the matter down for a hearing. “I’m going to set this matter down for a hearing. I can’t solve your problems for you.”
[8] Mr. Allen said that he did not want Mr. McLaughlin to solve his problems. He said that he was willing to comply but asked why they could not just carry on the way they had for the previous two months. The parties continued to discuss how the pick up could be arranged for the children. The Justice of the Peace noted then that a term of the order would be that Mr. Allen stay away from 6679 Highway 10, except for picking up and dropping off the children. Mr. Allen agreed. He had the opportunity to disagree. But he did not.
[9] The Justice of the Peace once again summarized the terms of the Peace Bond. Mr. Allen said “Okay”. The Justice of the Peace then explained that the Peace Bond had a $500 amount attached which would not have to be paid unless there was a breach.
[10] Mr. Allen asked whether everything had to go through his lawyer. The Justice of the Peace explained that other than arranging for pick up and drop off of the children any other communication had to go through his lawyer. Mr. Allen said, “Okay”.
[11] The Justice of the Peace told the parties that he would prepare the recognizance and Mr. Allen would be required to sign it. If he did not sign it, then a warrant may be issued for his arrest. Mr. Allen said, “Okay”.
[12] The appearance lasted about 15 minutes.
[13] Mr. Allen wants to withdraw his consent to the Peace Bond and have the matter heard on its merits. He says that his consent was uninformed and invalid and allowing the Peace Bond to remain in place would constitute a miscarriage of justice.
Issues
[14] Should Mr. Allen be permitted to lead new evidence at the appeal?
[15] Should Mr. Allen be permitted to withdraw his consent to the Peace Bond?
New Evidence
[16] Fresh evidence can be admitted on an appeal if it could not have been adduced at trial, it bears upon a decisive issue, it is credible and it is capable of affecting the result.
[17] In a motion to withdraw a plea, evidence that relates to the state of mind of the person who entered the plea is relevant and would not have been contemplated as being put forth when the plea was entered. The person can properly put forward evidence about their lack of informed consent.
[18] In this case Mr. Allen was not represented by a lawyer at the hearing in which he consented to entering into the Peace Bond. He has filed an affidavit in which he says that he did not threaten Ms. Allen and that she made many false statements. That evidence goes to the merits of the Peace Bond application and was available to him at the time of the hearing before the Justice of the Peace. He could at that time have said that he did not want to consent to the Peace Bond but wanted to have the matter set for a hearing at which he could lead the evidence set out in the affidavit. He did not need to have a lawyer at the time of the telephone hearing and could quite simply have said that he did not consent. The evidence that he sought to present could then have been presented. It was available.
[19] The issue in this appeal is whether Mr. Allen should be allowed to withdraw his consent. The evidence that he would lead to contest the Peace Bond itself does not bear on the issue of whether his consent was improperly obtained or in some way not freely given.
[20] Some of the evidence in Mr. Allen’s affidavit relates to his consent to the Peace Bond. He says that he had not received legal advice on what the summons for the peace Bond hearing meant. He said that he had no idea what his options were or what his rights were. He says that he had never heard of a Peace Bond before. He said that someone had told him that the judge would listen to both sides and make a decision and for that reason he had character references available for the June 8, 2022 hearing.
[21] That evidence relates to Mr. Allen’s consent and to his arguments about the lack of information that he had when consent was given. That evidence will be admitted on the appeal.
Withdrawal of Consent
[22] As counsel have noted, the application to withdraw consent to a Peace Bond is analogous to an application to withdraw a guilty plea.
[23] It is analogous but the circumstances are different as well. A Peace Bond is not a criminal conviction. The person who enters a Peace Bond has not acknowledged guilt of anything and has not acknowledged that the circumstances alleged by the person who brought the application are true or accurate. Furthermore, unlike a guilty plea, the consent in this case came over the course of the hearing. Mr. Allen was not asked once, formally, at the outset whether he consented. His consent was expressed several times during the course of the hearing and at any time if he disagreed with the terms that were being developed, he was able to express his wish to have the matter sent to a hearing.
[24] The Justice of the Peace asked Mr. Allen whether he consented and explained briefly what that meant. Mr. Allen said that he did. As the terms were discussed, there were opportunities for Mr. Allen to withdraw that consent, but he did not. He could at any point in the process have said that he wanted to get legal advice before deciding whether he should consent. He made no request. And it was made clear to him that he could.
[25] It is clear from the transcript that Justice of the Peace McLaughlin explained the implications of consenting to a Peace Bond. He gave Mr. Allen opportunities to either agree or not agree as the terms were developed. Mr. Allen was not asked to, or required to, admit to any facts. He had the terms of the order explained to him and he accepted them.
[26] Mr. Brown on behalf of Mr. Allen argues that the Justice of the Peace should have made inquiries into the merits of the application. He says that the Peace Bond should not have been granted on the basis of the evidence set out in the summons which he says does not establish that Ms. Allen had reasonable fear for her safety or that of her children or property.
[27] A Peace Bond is a preventative tool not a punitive one. Agreeing to a Peace Bond is not the same as a criminal conviction and is not an admission of anything. They are used to resolve criminal charges in situations where the preventative aspects outweigh the public interest in having a conviction entered. They are used in family law matters to avoid the occasion of violence. They are intended to be flexible and the process, in order to achieve the goal of prevention, should not be unnecessarily long, formal and drawn out. If a person is prepared to agree to be bound by the terms of a Peace Bond there is no requirement similar to that upon accepting a plea, for a judge or justice of the peace to inquire as to whether the person is “admitting” the elements of the offence because there is no offence. A justice of the peace is not required to look behind the person’s consent to question whether the person who has signified their consent may have a case to put forward to contest the Peace Bond.
[28] In Mr. Allen’s case he was informed of the information upon which Ms. Allen was seeking the Peace Bond. He was informed by Justice of the Peace McLaughlin that he could consent but did not have to consent. He was told three times that the matter could be set down for a hearing. As the terms were developed in the hearing it was clear that Mr. Allen was under no requirement to consent to terms with which he disagreed. At any time in the process he could have said that he wanted to have the matter go to a hearing so that he could present evidence.
[29] Mr. Allen’s will was not overborn by the process. He knew what he was agreeing to and he freely agreed to it. His consent cannot later be withdrawn because he feels that he could have successfully contested the application.
[30] The appeal is dismissed.
Campbell, J.