R. v. Douglas Minoza, 2007 NWTTC 1 (CanLII)
[43] The common law concept of ‘breach of the peace” is not statutorily defined. However, the existing jurisprudence makes it clear that the core notion of a “breach of the peace” is a violent disruption or disturbance of the public tranquility, peace or order.”: Frey v. Fedoruk (1950), 97 C.C.C. 1 (S.C.C.). It has also been described as “unacceptable conduct that unduly disrupts and violates the public peace and good order”, without any emphasis on a particular crime: R. v. Stone reflex, (1985), 22 C.C.C. (3d) 249 (Nfld.S.C.).
[44] A “breach of the peace” occurs where there is an actual assault, public alarm or 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: R. v. Gosai, [2002] O.J. No. 359, 2002 CarsellOnt 370 (Ont.S.C.J.) at para. 20 Durno R.S.J.
[44] Sections 30and 31 of the Criminal Code do not create the offence of “breach of the peace” nor do they preserve or resurrect the old common law offence. Section 9of the Criminal Code provides that with the exception of “contempt of court” no one may be convicted of an offence at common law. In R. v. Lefebrereflex, (1982), 1 C.C.C. (3d) 241, (B.C. Cty. Ct.) affirmed 1984 CanLII 473 (BC CA), (1984), 15 C.C.C. (3d) 503, (B.C.C.A.), it was held that the “common law offence of breach of the peace is not incorporated into the Criminal Statues of Canada.”
[45] In explaining the provisions contained in section 31(1) of the Criminal Code, the court in R. v. Januska 1996 CanLII 8288 (ON SC), (1996), 106 C.C.C. (3d) 183 (Ont. Gen. Div.) stated:
It simply provides a defence to anyone who has committed a breach of the peace: “there is no offence in Canada of breach of the peace” (Annotation in Martin’s Criminal Code, s. 31(1)). Because there is no offence of committing a breach of the peace, it stands to reason that an officer wishing to arrest an individual pursuant to s. 31(1) must be sure of the facts.
[46] I disagree with the Crown’s argument that Constable Anderson was entitled to arrest the accused as a result of observing a possible violation of the Liquor Act. A “breach of the peace” is not committed simply through the commission of an offence. In this regard the term “breach of the peace” is to be distinguished from the term “public peace” or what in the past was commonly referred to as “the Queen’s Peace”. In R. v. Thornton (1970), 12 C.R.N.S. 96 at 99 (Ont. Prov. Ct.) the court stated:
What is meant by “public” peace was considered in Regina v. Badenock ….. [1969] 1 C.C.C. 78, a decision of the British Columbia Court of Appeal, where it was held to be equivalent to “the Queen’s peace” in its broader and later signification, being the legal name of the normal state of society; that quiet peace and general security which is guaranteed by the laws for personal comfort of the Queen’s subjects.
[47] The Criminal Code uses the term “breach of the peace” in a number of sections. It uses the term “public peace” in section 88. One can safely assume that the different terms are used because they convey different meanings.
[48] “The public peace” or “the Queen’s peace” is a concept broader than that encompassed by the “the peace” where the term is used in sections 30 and 31 of the Criminal Code.
[49] Laskin C.J.C., dissenting in the result, in R. v. Bucin, 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56, 30 C.R.N.S. 109, 23 C.C.C. (2d) 513 at para. 57, stated:
By no stretch of the imagination can either s. 30 or s. 31 be turned into a general power of either arrest or justification in respect of any criminal offence on the theory that all offences under the Criminal Code constitute breaches of the peace. This would eliminate at one swoop, and by a side wind at that, any protection that an accused would have against any consequential charges if he was illegally arrested.
[50] While the commission of an offence may, in and of itself, be sufficient to violate “the public peace” it is not in and of itself sufficient to “breach the peace”. Neither is the commission of an offence necessary to “ breach the peace”. What is required is something in the nature of a riot, tumult or actual violence: Gosai, supra.
[51] In analyzing the facts in the context of the breach of peace alleged by the Crown, I note at the outset that Constable Anderson purported only to arrest the accused “under the Liquor Act” and later for the specific offence of public intoxication.
[52] Section 30 of the Criminal Code deals with the powers of any person to detain another in order to prevent a breach of the peace or its continuation or renewal. Section 30 is inapplicable to a peace officer’s powers of arrest since the detention must be effected for the purpose of giving the detainee into the custody of a peace officer.
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