Bill C-51 (the “Anti-Terrorism Act”), which, with the support of Liberal Members of Parliament, became law in 2015 under Stephen Harper’s Conservative government, has brought the issue of peace bonds back into the public eye. (http://www.cbc.ca/news/politics/c-51-peace-bond-terror-arrests-1.3514030)
Peace bonds—in various iterations—have been around for a very long time. Aside from common law peace bonds (the original source of the term), the Criminal Code allows for a wide variety of peace bonds.
Essentially, a peace bond requires an individual to undertake (or, most commonly, not undertake) certain activities. Failure to do so can lead to potentially serious consequences (including forfeiture of funds/property and the laying of criminal charges).
Criminal Code peace bonds—often referred to as “s. 810 peace bonds”—can ultimately lead to jail time if an individual is found guilty of breaching conditions, as any breach type of action is interpreted as disrespecting a court order.
“Peace bonds can have the effect of criminalizing what would otherwise be considered lawful behaviour”
Like many lawyers with criminal law experience, I’m conflicted when it comes to the topic of peace bonds.
On the one hand, if used properly, they can be quite effective as a case-resolution tool. That is, peace bonds can be useful in resolving cases that—for one reason or another—should not go to trial and should also not immediately result in a finding of guilt against the accused but, additionally, should result in some level of protection for the victim.
On the other hand, there is a significant fear that peace bonds can be used in an overzealous fashion. They may be employed as a sword and can—in many cases, purposefully or not—set people up for failure (which is also a common complaint with respect to the imposition of certain bail conditions).
Peace bonds can have the effect of criminalizing what would otherwise be considered lawful behaviour—and, in my opinion, that’s a significant problem.
In advocating for the development of a fire fighting force in Philadelphia in the 1730’s, Benjamin Franklin opined, “An ounce of prevention is worth a pound of cure.” (http://www.law.du.edu/documents/denver-university-law-review/v88-4/Kiel_ToPrinter_92611.pdf)
Certainly, with regard to fields such as building safety, public health, and medicine more generally, the truth of this statement is undeniable. Preventative medicine, in particular, is a wonderful thing (I’m also quite thankful that the roof over my head is not made of straw).
But criminal law—for good or bad—is inherently reactionary. If someone is accused of breaking the law, that individual then finds himself/herself in the criminal justice system.
It’s problematic to round up people out of fear that they may—at some point in the future—do something criminal. Surely we are capable of learning from our own history on this point. (In 1988, Brian Mulroney, who at one point was considered to be one of Stephen Harper’s idols, issued a formal apology for the Canadian government’s actions during World War II, which led to the internment of thousands of people—including vast numbers of Canadian citizens—of Japanese descent.)
It’s also an offence to the rule of law to impose a different set of laws on certain individuals in comparison to the general population.
The fallout of the Ghomeshi case reveals that, when outrage and anger exist and are directed at an unsympathetic target, we are frighteningly quick to ignore our core principles, like the rule of law, the right to a fair trial, and the presumption of innocence.
“Suspected terrorists”—the purported target of Bill C-51—are liable to generate similar disdain and are unlikely to garner much more public support than Mr. Ghomeshi. However, it wasn’t long ago that “subversive” individuals like suffragettes, union leaders, or communists would have been considered “terrorists.” Having the ability to tag certain people with that label and then control their actions means having an inordinate amount of power—particularly in a progressive and democratic country like Canada.
“An ounce of prevention is worth a pound of cure.”
As outlined in a previous article (http://www.londoncriminaldefence.com/getting-carried-away-factors-that-can-lead-to-miscarriages-of-justice/), Bruce MacFarlane, QC, has identified four “predisposing circumstances” that often help to create an environment that fosters miscarriages of justice:
first, extreme public pressure to secure a conviction in a high-profile case; second, the presence of an unpopular or marginalized accused; third, a conversion of the adversarial nature of the criminal justice system into a game; and fourth, a belief that the ends justify the means (Bruce MacFarlane, “Convicting the Innocent: A Triple Failure of the Justice System” (2007) 31 Manitoba Law Journal 403 at 435-436; this article may also be viewed here: http://www.aidwyc.org/wp-content/uploads/2015/08/MacFarlane-2006-Convicting-the-Innocent-A-Triple-Failure-of-the-Justice-System.pdf
The misapplication of peace bonds is arguably even worse than a wrongful conviction. At least with a wrongful conviction, there was some attempt—however half-hearted—to “go through the motions” of having a trial.
The imposition of a peace bond largely bypasses that.
Perhaps Yann Martel should have sent Stephen Harper—and Justin Trudeau, for that matter—a copy of Steven Spielberg’s Minority Report. (As an added bonus, there would have been no reading required…)