R. v. Smith 2014 NSPC 44 – Smith was placed on probation on the 16th day of December, 2012. He was ordered, among other things, that he had to keep the peace and be of good behaviour. On the 6th day of June, 2013, Smith agreed through intermediaries to meet for a consensual fight with another young man. Smith and another young man arranged to meet at what appeared to be a local ball field in a residential area of Parrsboro, Nova Scotia. Two separate videos were introduced from two separate videographers showing Smith aggressively approaching the other man and then striking him. The other individual fell to the ground, but proceeded to get back up saying, “Is that all you got?” He then proceeded to charge at Smith. Smith slapped the other man in the face several times, knocking him to the ground. The accused then backed off retreating to his vehicle and issuing the challenge, “Does anybody else want to have a f!!! go?” No one else took up the invitation.
Someone in the area called 911 during the fight to report what was occurring. In addition, there were at least eleven other people that observed the activities that took place that day. At least two of those individuals recorded videos of the encounter on their phones. Some of the bystanders shouted and at least one indicated that the other person involved in the altercation with the accused had had enough. The police became involved and, while no other charges were laid, the authorities did charge Smith with breaching his probation by failing to keep the peace and be of good behaviour. Smith argued that an individual cannot be convicted of a breach of the term of probation to keep the peace and be of good behaviour without committing a criminal offence. The Crown disagreed and argued that a failure to be of good behaviour can refer to “conduct that falls below the conduct expected of all law abiding and decent citizens”.
Provincial Court Judge Paul Scovil conducted an extensive review of the authorities regarding the concept of “keep the peace and be of good behaviour”. In R. v. Docherty  S.C.J. No. 105, the Supreme Court of Canada considered whether then Section 666(1) of the Criminal Code was to be interpreted as an offence requiring its own mens rea or as an offence which automatically follows upon a conviction for any Criminal Code offence or other deliberate act which constitute a violation of the conditions of a probation order. Section 666(1) was the precursor to Section 733.1. Section 666(1) should be noted as having the word “willfully” as part of the offence as opposed to the term “without reasonable excuse” as contained in the now 733.1.
Justice Wilson in her decision in Docherty considered the Newfoundland Court of Appeal decision in R. v. Stone (1985), 22 C.C.C. (3d) 249. At paragraphs 21-22, the Court stated as follows:
Steele J. proceeded from the view, expressed at p. 255, that the two terms, “keep the peace” and “be of good behaviour”, impose “separate and distinct conditions though in certain circumstances may overlap”. At page 256, he draws the following distinction:
- When considering whether there has been a failure “to keep the peace”, one is conscious of public opinion and its perception of peace and good order and what does or does not offend that nebulous standard. If the issue is an individual’s good behaviour, the emphasis shifts to a more personal analysis of his conduct. A breach of an undertaking “to keep the peace” means a disruption or the upsetting of public order whereas a breach of a bond of “to be of good behaviour” means some act or activity by an individual that fails to meet the fanciful standard of conduct expected of all law-abiding and decent citizens. It is quite possible, as I have already said, that one can fail to be of good behaviour yet not commit a breach of the peace. It is probably a matter of degree. We are only concerned with the second aspect of the statutory condition, namely, “to be of good behaviour”.
Steele J. goes on to say at p. 257 that a conviction for breach of a federal, provincial or municipal statute “may be — perhaps usually is — but not necessarily” a failure to be of good behaviour. Conversely, conduct which does not violate any statute may nevertheless breach the condition to keep the peace and be of good behaviour. The accused in that case was found not to have had the required intent for the underlying offence, i.e., the offence of fraudulently obtaining food. Nevertheless, his behaviour at the restaurant was found to fall short of “good behaviour”. The stated case did not raise the issue of the requisite mens rea for wilful failure to comply with the probationary condition to “be of good behaviour”, and Steele J. did not deal with it. By upholding the conviction under s. 666(1), however, he implicitly affirmed the trial judge’s finding that the appellant had the requisite mens rea for that offence.
While the decision in Docherty mainly considered what was meant by “willfully”, the paragraphs cited from Stone appeared to accept that the concept of “keep the peace” was a separate one from that of to “be of good behaviour”. That line of thinking pervades subsequent case law.
Judge Scovil then examined R. v. Johnston  M.J. No. 539 (Man. Q.B.), a case which was factually similar to the matter before him. In Johnston, the accused had followed another individual from a building out into the public where a fight ensued. The trial judge in that case determined that it was a voluntary fight between the two combatants. The accused was charged with failing to comply with his probation order, namely: “keep the peace and be of good behaviour”. Justice Monnin’s decision contained a review of Stone and Docherty, but only tangentially considered the question of the difference, if any, between “keeping the peace” and “being of good behaviour”. At paragraph 4 of that decision, Justice Monnin stated as follows:
In dealing with the first ground of appeal, the appellant argues that for the offence to be complete, there must be a failure of both keeping the peace and being of good behaviour. In addition, the appellant argues that good behaviour is to be read as lawful behaviour because that is an objective standard while if the test was less than lawful behaviour, the test would of necessity become subjective and thereby not measurable in a precisely defined way.
Justice Monnin spoke of there being failures of both “keeping the peace” and “being of good behaviour”. He did not go on to consider what exactly that would mean. He did go on, however, to find that the consensual fight in Johnston was an activity such as to justify a conviction based on as he said, “at the very least, the appellant breached the public peace”. His comments subsequent to that seem to state that it was on the first ground of “keeping the peace” as opposed to “being a good behaviour”. He stated at paragraph 10:
I do not have to deal with the concept of good behaviour because of my finding but, if I had, I think that I would be hard-pressed to state that a public fight, even though maybe consensual, can be considered as good behaviour. A consensual fight might not be an offence but it is clearly not a behaviour pattern for adults that is condoned or sanctioned in a community of people living together.
In R. v. S.S.  N.J. No. 230, the Newfoundland Court of Appeal reviewed the question of what is meant by “keeping the peace and being of good behaviour” in relation to breach of a probation order. The accused in that matter was charged under the Young Offenders Act with breach of probation when he had to be removed from his class at school due to disruptive behaviour. The accused was defiant of authority, disrespectful of rights of property, used foul language, and acted in such a manner that disturbed and disrupted the orderly operation of the classroom. S.S. had also engaged in a physical altercation with his teacher. The position of the defence in the matter was that in law, the scope of an obligation to keep peace and be of good behaviour did not extend to non-criminal behaviour in the school. The Newfoundland Court of Appeal considered the conflicting positions expressed in prior case law. The Court concluded that the concept of failure to “be of good behaviour” in the statutory conditions in the probation order is limited to noncompliance with legal obligations in federal, provincial or municipal statute and regulatory provisions, as well as obligations in court orders specifically applicable to the accused. It does not, however, extend to otherwise lawful conduct if that conduct falls below some community standard expected of all peaceful citizens.
Judge Scovil proceeded to examine other cases out of Ontario and Newfoundland, but for the sake of simplicity, I will summarize what Judge Scovil decided:
“A breach of the peace occurs where there is an actual assault, public alarm, or an excitement caused. A mere annoyance or insult to an individual, stopping short of actual personal violence, is not a breach of the peace. An essential ingredient is something in the nature of a riot, tumult or actual violence. The core notion of a breach of the peace is a violent disruption or disturbance of the public tranquility, peace or order. … It has also been described as “unacceptable conduct that unduly disrupts and violates public peace and good order” without any emphasis on any particular crime. …
I find that the term “keep the peace and be of good behaviour” has two distinct components. To be of good behaviour is limited to noncompliance with legal obligations found within federal, provincial or municipal statutory and regulatory obligations. I note that not necessarily all infractions of statutory obligations will trigger a breach of good behaviour. Breaches related to keeping the peace concern behaviour that is violent and disturbing to the tranquility of the public.
Here the accused engaged in public brawl that was of a clear violent action. It occurred in full public view causing obvious disturbance to those in the area. The accused failed in his obligation to keep the peace and in no way was he operating within the rehabilitative framework of his probation order. Accordingly, I find him guilty as charged.”