David Butt is a Toronto-based criminal lawyer who routinely acts for complainants in sexual-assault cases, and represented one of the witnesses in the Jian Ghomeshi trial.
The Ghomeshi saga has limped to conclusion. That legal cloak of innocence, which many still see sitting poorly on his shoulders, can now be worn permanently, with whatever pride he can muster.
The previous chapter of the saga ended loudly. The judge stylistically over-reached in excoriating the complainants while acquitting Mr. Ghomeshi. Writing with such a heavy hand was the judge's attempt to quell controversy over his verdict, but he only managed to ignite it.
The current chapter ended much more quietly, with a peace bond and an apology. The apology issued today by Mr. Ghomeshi is highly unique in peace bond situations. Normally there is no concession of any wrong-doing of any type. This is an intriguing dynamic that may be speaking a truth about misconduct that lots of folks intuited, but that the justice system itself could never quite discover. At the very least, the apology speaks to the obvious need for a public figure to take the first step on a long journey toward public rehabilitation. And it might just bring a measure of solace to a survivor.
What is a peace bond, and behind the opaqueness of the quaint legal term, and what does it signify?
A peace bond is part of a privately negotiated outcome to a criminal case. The prosecution agrees to withdraw the charges against the accused person. In return, the accused person signs in open court a piece of paper promising to "keep the peace and be of good behaviour" – thus the term peace bond. In non-legalese, this means a promise not to commit a crime. Another typical peace bond requirement is that the accused person stay away from the complainant who made the allegations against him. Breaching a peace bond is a criminal offence. So the peace bond promise is not entirely empty, although criminal charges for breaching peace bonds are scarcer than hens' teeth.
Peace bonds are daily fare in criminal courts, with two distinct patterns of use. The first is to clear minor flotsam and jetsam off our chronically crowded court dockets. Neighbour stomp on your tulips? Peace bond. Throw a drunken ineffectual punch at a sports bar when someone dissed your team too hard? Peace bond. Common-sense prosecutors use peace bond in minor cases when the wake-up call of just being charged is lesson enough, and more serious matters await.
The second pattern of use of a peace bond is altogether different. Whenever a serious charge is resolved with a peace bond, the unstated message is that the case was on life support. In serious cases, a peace bond is an all-but abject surrender by the prosecution, a face-saving measure just shy of a complete abandonment of the case.
Which category does the Ghomeshi peace bond fall into? The latter. So why is the prosecution now all but walking away from a relatively serious case? Such decisions are never taken lightly, but the reasons can be many and varied, and we will never know the whole story.
The bland explanations prosecutors offer in open court conceal more than they reveal. Peace bond negotiations are private, between the prosecutor and the defence lawyer. Complainants have a right to be consulted during negotiations, but have no veto.
Before anyone goes apoplectic about all that secrecy in court processes, consider this: across a broad spectrum of important activity, secrecy in delicate dealings facilitates progress. Whether it is journalists engaging with sources, therapists with patients, unions and management negotiating under blackouts, diplomats having back-channel discussions, or lawyers resolving cases, we need non-public problem-solving forums to take risks, float and reject tentative proposals, acknowledge weakness in our own positions, and embrace brutal honesty.
And one of the most pernicious forms of cognitive dissonance is that we want complete openness for everyone's affairs but our own. The unseen bulk of our criminal justice iceberg is that up to 95 per cent of criminal cases are resolved in private discussion between the opposing lawyers. So the reality is that private, voluntary resolutions are the soul of criminal justice. Trials are just the facial features.
It is possible that the second Ghomeshi trial foundered for all the wrong reasons. I have said that criminal courts are currently structurally incapable of serving the legitimate needs of sexual assault survivors. So maybe the Ghomeshi peace bond is a symptom of that malaise. But maybe not.
And those who rush to judgment in an informational vacuum are not worth listening to.