Episode 36 of the Ideablawg Podcasts on the Criminal Code of Canada: Preventing Breach of Peace – Sections 30 and 31

Immediately preceding the “suppression of riots” sections in the Code, which we discuss in Episode 37, are two sections on preventing breach of the peace, sections 30 and 31. The are only two other sections, which make specific reference to the “breach of the peace.” One is section 72 relating to forcible entry and forcible detainer – a section that we will eventually discuss but without giving away the fascinating history of this section, is a definite nod to old English common law from the medieval period. The other reference to breach of the peace is found in section 319 “public incitement of hatred.”

Although this term appears sparingly in the Code, it is referred to in many criminal decisions as an underlying objective of the criminal law, which is to prevent and contain breaches of the peace. The phrase is used for instance in discussing a breach of a recognizance condition of “keep the peace and be of good behavior.” It has meaning for a “peace bond” under s. 810 and pursuant to the common law. It also relates to the historical creation of trespass as a citizen’s means to address breaches of peace on private property - Harrison v. Carswell, [1976] 2 SCR 200. The term is also relied upon in Jobidon as a justification for the English common law prohibition against consensual fist fights as they notoriously lead to breaches of the peace. Finally, in R. v. Kerr, [2004] 2 SCR 371, the breach of the peace is discussed in relation to the required elements of s. 88 offence of possession of a weapon for a purpose dangerous to the public peace.

What exactly is a “breach of the peace”? The phrase was considered in Frey v. Fedoruk et al. a 1950 Supreme Court of Canada decision on a claim of false imprisonment and malicious prosecution. The claim arose when the Appellant was placed under a citizen’s arrest for unlawfully acting “in such a manner likely to cause a breach of the peace by peeping at night through the window.” Apparently, the window was curtain-less, which caused the defendant to chase the Appellant down the street and effect a citizen’s arrest. Justice Kerwin, in concurring with the majority in allowing the appeal for the Appellant, relied upon the following definition of the phrase “breach of the peace” from Clerk and Lindsell on Torts (then in its 10th edition and now, impressively, in its 21st iteration):

“A breach of the peace takes place when either an actual assault is committed on an individual or public alarm and excitement is caused. Mere annoyance or insult to an individual stopping short of actual personal violence is not breach of the peace. Thus a householder - apart from special police legislation - cannot give a man into custody for violently and persistently ringing his door-bell.”

The majority too preferred a more restrictive definition of such a breach of the peace, which did not contemplate a potential vigilante reaction but was more akin to a “riots, tumults, and actual physical violence.” The broader interpretation, so the Court held, was more applicable to the special case of forcible entry and forcible detainer pursuant to s.72, which as I earlier stated, we will discuss further down this Criminal Code road. In any event, the Court found the Appellant’s conduct did not amount to a known offence in criminal law as there was no breach of the peace and mere trespass was not a criminal offence.

Sections 30 and 31 grant authority to a citizen who witnesses such a breach of the peace to prevent it under section 30 and permits a police officer to arrest a person breaching the peace under s. 31. The sections read as follows:

Preventing breach of peace

30. Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.

Arrest for breach of peace

31. (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.

 (2) Every peace officer is justified in receiving into custody any person who is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable grounds the peace officer believes has, witnessed the breach of the peace.

As already recognized in the case I previously referred to, Frey v Fedoruk et al, the concept of breach of the peace is old indeed and certainly the authority to prevent such a breach and arrest on the basis of such a situation comes to us from the English common law tradition. The eminent English legal scholar, Glanville Williams, thoroughly discussed this concept in his oft-quoted seminal article,  “Arrest for Breach of the Peace”, [1954] Crim. L. Rev. 578. Please note this article cannot be found online but an excellent discussion on his views are examined in The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams edited by Dennis J. Baker, Jeremy Horder, in the chapter on “Preventative orders and the rule of law.” I highly recommend this book. This excerpt of the book can be accessed on Google Books. Glanville Williams lucidly explains the purpose behind the English common law “breach of the peace” provisions as preventative in nature.

Section 30 is essentially a legal justification for the use of force and therefore it is important for defence counsel to keep this section in mind when representing an accused for a violent offence. An accused who relies on this section must use no more force than is necessary and it must be proportionate to the potential harm inflicted by the continuance or renewal of the breach of the peace.  However, as with any legal defence, there must be an “air of reality” to the defence before the trier of fact will consider it. Again, it must be remembered that the meaning of “breach of the peace” as previously discussed also circumscribes the defence. Also be mindful of some of the other words and terms used in the section – as the defence will have to establish the existence of these terms as well in order to rely on the legal justification. The person must “witness” the events. Additionally, the person is merely required to “interfere.” The dictionary definition of “interfere” is “to become involved in the activities and concerns of other people when your involvement is not wanted.” This is a much less onerous requirement than an actual use of force. Also, this section, as mentioned previously, also applies in preventative situations where there is a potential for a person to become involved in a breach of the peace.

Section 31 is temporally connected to section 30 as it contemplates the arrest of an individual who is breaching the peace and who, the arrestor believes on reasonable grounds will join or renew any such breach. Here the arrestor must either “witness” the events or receive an accused from a person who has witnessed the events. The actions, as is usual for these justifications and protections, must be reasonable in the circumstances. The section therefore gives an officer or an assistant the power to arrest in the circumstances and the right to take into custody a person who is detained pursuant to section 30.