La bonne conduite est assimilable au respect des lois

R. v. R. (D), 1999 CanLII 13903 (NL C.A.)

The obligation to keep the peace and be of good behaviour arises in a variety of contexts in the criminal law. (...) it has an equivalent for adult offenders under s. 732.1(2)(a) of the Criminal Code and in respect of conditional sentences under s. 742.3(1)(a) of the Code. Furthermore, the obligation surfaces as a possible disposi­tion as part of a bonding order under s. 810(3)(a) of the Code. It also is an optional condition that is frequently inserted as a condition in a recognizance entered into by an accused to secure his or her pre­trial release from custody.

In R. v. Stone (1985), 22 C.C.0 (3d) 249 (Nfld. S.C.), the Trial Division of this Court held that being intoxicated in a restaurant and being unable to pay the bill amounted to a failure to be of good behaviour, thereby constituting a breach of probation notwithstanding the accused's acquittal of the charge of fraudulently obtaining food. Steele J. stated at p. 257:

... the conviction of an accused of a [breach of probation] offence is based on his conduct or behaviour and not merely on the conviction for an offence under a penal statute, federal, provincial or municipal.

Steele J. drew a distinction between the obligation to keep the peace and the obligation to be of good behaviour, in these terms, at p. 256:

A breach of the undertaking "to keep the peace" means a disruption or the upsetting of public order whereas a breach of a bond "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 ... that one can fail to be of good behaviour yet not commit a breach of the peace.

Although agreeing that breach of a federal, provincial or municipal statute would usually, but not necessarily, amount to a failure to be of good behaviour, it is clear that he was also of the view that other lawful conduct could also constitute the offence if it fell below the standard of behaviour expected of lawabiding and decent citizens. For Steele J. the focus should be on the nature of the behaviour, not on its criminal characterization as such.

The conclusion of Steele J. that the two terms "keep the peace" and "be of good behaviour" impose separate and distinct conditions was commented on, without disapproval, by the Supreme Court of Canada in R. v Docherty 1989 CanLII 45 (S.C.C.), (1989), 72 C.R. (3d) 1, 51 C.C.C. (3d) 1, but, because it was not necessary to do so in that case, the Court did not purport to endorse Steele J.'s definition of the scope of the content of the notion of "good behaviour".

The approach in Stone has been followed in R. a Flynn reflex, (1995), 132 Nfld. & P.E.I.R. 334 (Nfld. Prov. Ct.); R. a M (S.A.M.), [1994] S.J. No. 537 (QL) (Sask. Prov. Ct) [summarized 25 W.C.B. (2d) 383]; and R. a Johnston reflex, (1993), 90 Man. R. (2d) 43 (Q.B.). In the last case, Monnin J. expressed the view, in obiter, that a consen­sual fight, even though it might not amount to an offence, was "clearly not a behaviour pattern for adults that is condoned or sanctioned in a community of people living together" and hence would amount to a failure to be of good behaviour.

In Docherty, the Supreme Court held that the offence of breach of probation required proof of specific intent to breach the probation order. Wilson J. stated at p. 13:

... the mens rea of [the offence of breach of probation] requires that an accused intend to breach his probation order. This requires at a minimum proof that the accused knew that he was bound by the probation order and that there was a term in it which would be breached by his proposed conduct. The accused must be found to have gone ahead and engaged in the conduct regardless.

and at p. 15:

An accused cannot have wilfully breached his probation order through the commission of a criminal offence unless he knew that what he did constituted a criminal offence.

As Berg notes in his previously cited article at p. 476: "If a condi­tion is vague, a probationer cannot determine when his conduct is at risk of breaching that condition. Thus, analytically, vagueness negates the nexus between the condition and the wilful breach thereof — the knowledge of the condition and the knowledge of what constitutes a breach of that condition do not meet. In that context, intent cannot be said to exist."

I conclude, therefore, that the principle that a person is entitled to know in advance whether his or her specific conduct is illegal before engaging in the activity that leads to his or her being charged with an offence (here, breach of probation) is a strong argument for limiting the content of the obligation to be of good behaviour to an obligation to comply with existing laws or orders. A person is deemed to know the law and, hence, holding a probationer accountable for breach of the obligation of good behaviour on the basis of breach of a statutory provision or an order specifically applicable to him or her does not offend the principle in question.