McElroy: Peace bonds are controversial, but yes, they are a path to the truth
Published on: May 12, 2016
Former CBC Q Host Jian Ghomeshi
The saga of Jian Ghomeshi’s criminal trial has now ended, somewhat
anti-climactically, with Mr. Ghomeshi entering into what’s called an s. 810
peace bond. Peace bonds are not an uncommon tool in the criminal justice system,
but as evidenced by the reaction to this story, are not widely understood by the
public. Still, they are often used in Ontario Court of Justice cases on a
routine basis, without attracting any media attention or commentary. In this
case, complainant Kathryn Borel characterized the peace bond as the clearest
path to the truth.
But the outcome of the case has left many wondering how we, as a public, can
reconcile an apology with a lack of admission. In other words, how can Jian
Ghomeshi have acknowledged responsibility for violating Ms. Borel while (as
emphasized by his defence lawyer, Marie Henein) not admitting to the offences?
First off, the peace bond proceedings do not require a plea of guilty or not
guilty. In the case of a peace bond, the court asks whether or not the person
wishes to “show cause” as to why the complainant did not have fear for their
safety. In doing so, the accused is not opposing that there is a factual basis
for the peace bond, but they are not going so far as to admit legal guilt.
In all criminal law cases, there is an important difference between factual
guilt and legal guilt. For example, in impaired driving offences, an individual
who blows over .80 is likely guilty in fact of the offence, meaning that they
may have driven while drunk.
However, it is up to the Crown to prove that they are guilty at law, providing
the necessary evidence to ground a conviction. If there are issues with the
breathalyzer readings or if the reason for the stop was unlawful, then the
person could be acquitted. This does not mean that nothing happened; it means
that the Crown hasn’t met the burden of proof.
If we consider Mr. Ghomeshi’s original trial, it’s quite possible that he was
guilty in fact of those charges. The defence did not offer another theory of the
case or an alternate explanation, or flat out state that nothing ever happened.
Instead, it argued that the evidence put forth simply wasn’t reliable enough to
base a finding of guilt on it. Justice William Horkins agreed that there was a
reasonable doubt based on the evidence of the complainants. Again, just because
somebody might be guilty in fact does not mean that they are guilty in law.
So was the peace bond the clearest path to the truth? Yes, it likely was. Had
this charge gone to trial, Mr. Ghomeshi would have held the Crown to its burden
to prove the allegations, and it’s again quite possible that he would have been
acquitted. A peace bond can act as a sort of intermediary, allowing the accused
to acknowledge factual wrong-doing without necessary admitting to criminal
liability. It’s also important to remember that this sort of apology would never
have flowed from a contested trial, where a plea of not guilty encompasses both
factual and legal guilt.
The peace bond is not without controversy, and may not satisfy some who believe
that Mr. Ghomeshi “got off.” Still, the final outcome shows the importance of
complainants’ input and Crown discretion in moving towards a path to the truth.
Anne-Marie McElroy is an
Ottawa-based criminal defence lawyer. You can find her on twitter at
@McElroy_Law and read her blog at www.mcelroylaw.ca