Don't expect new justice minister to deliver on progressive criminal justice reform

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In retrospect, Justin Trudeau’s surprise cabinet shuffle should not have come as a surprise. After all, it was obvious there would be some changes to Canada’s executive branch after Scott Brison announced he was resigning to spend more time with his family but definitely not to spare the government some very bad press during the election when he will likely face cross-examination by top-shelf lawyer Marie Henein over his role in the Vice-Admiral Mark Norman affair.

It was Jody Wilson-Raybould’s shuffle out of the justice portfolio all the way down the cabinet board to Veterans Affairs Canada that caused eyebrows to be raised. But maybe we should have seen that coming, too.

The cold, hard truth is that Wilson-Raybould’s time as Canada’s justice minister was a massive disappointment for anyone who hoped the Liberal government would actually follow through on its lofty justice promises.

Sure, in her bizarrely self-defensive exit letter, Wilson-Raybould claimed that there was “very little, if anything, in my mandate letter we have not done or is not well under way to completing.” Wilson-Raybould may be protesting a little too much on this one, because any honest reading of her mandate letter only highlights her failures.

It is true that under Wilson-Raybould the government responded to the Supreme Court of Canada’s decision regarding physician-assisted death. She did not really have a choice but to move fast on that one. But there is a growing cry from Quebec and elsewhere that Wilson-Raybould’s law is too vague, doesn’t comply with the Supreme Court’s decision and is unconstitutional.

And Quebec is going to prove to be an important battleground province in the 2019 election.

Wilson-Raybould also sort of followed through on the Liberal promise to remove marijuana consumption and possession from the Criminal Code. After so many broken election promises, this could have been a pleasant surprise. But the final marijuana bill was a mess that did not actually remove marijuana from the Criminal Code, continued the criminalization of youth, discriminated against the poor and introduced new impaired driving laws full of unfairness and racism.

The rest of Wilson-Raybould’s mandate letter is a rogues gallery of bungled and unfulfilled commitments. The national inquiry into murdered and missing Indigenous women and girls has been a bureaucratic nightmare. Sentencing reforms, including the promised roll-back of minimum sentencing, never happened. There have been precious few measures to address the disproportionate impact of the criminal justice system on Indigenous, racialized, impoverished and marginalized communities. And there has not been any action on the promised modernization efforts to improve efficiency and effectiveness of the criminal justice system — paper and the fax machine still rule the day in our courts.

To put it bluntly, Wilson-Raybould seemed to have been content to hold her tongue and sit on her hands — since 2015, only a handful of criminal justice bills have been passed into law.

So plodding were Wilson-Raybould and the government on criminal justice reforms that they were even beaten by the tortoise of the court system.

In 2013, the Conservative government introduced changes to the Criminal Code to make victim fine surcharges a mandatory part of sentencing. At the time, the Liberals vocally opposed the legislation. They were right to do so. Stephen Harper’s changes were overly punitive, limited judicial discretion and disproportionally hurt the poor. But in her three-and-a-half years as justice minister, Wilson-Raybould was not able to roll back those Harper era changes. She was so ineffective that court challenges to victim surcharge law moved from the lower courts to the appeal courts to the Supreme Court where the law was recently struck down — all before Wilson-Raybould could get any legislation passed.

But maybe none of this was her fault. Maybe Wilson-Raybould was not as incompetent of a minister as it would seem. Maybe she wanted to move forward with the promised reforms but was held back by the prime minister’s office. There was a growing feeling that Wilson-Raybould was becoming frustrated with centralized PMO controls and was beginning to veer off script.

So perhaps this explains Wilson-Raybould’s surprise demotion — especially when the other half of the story is who was chosen to replace her.

Wilson-Raybould’s replacement, David Lametti, seems to be the perfect election-year minister of justice. He clerked for Justice Peter Cory at the Supreme Court. He was a professor of law at McGill University. He represents an important Quebec riding. And he has been a loyal government soldier who has also been largely silent on criminal justice issues.

And this last qualification is the most important.

Over the next year, the government will not want a justice minister who will vocally advance progressive legislation that could be used as fodder for Conservative soft-on-crime attack ads. The prime minister will want a justice minister who can toe the party line, keep quiet and be amenable to centralized control.

Trudeau, I’m sure, would prefer a justice minister who will listen to the PMO when considering sticky political issues such as  signing off of the extradition of Meng Wanzhou.

Perhaps Trudeau was worried that Wilson-Raybould was not up to that job.

In the end, neither scenario reflects well on Wilson-Raybould’s tenure in justice. She either was a terrible legislator who abandoned the promises of progressive reforms or she was not able to stand up for her principles.

But none of this really matters because Wilson-Raybould did not deliver on the promise of progressive justice reform and there is no reason we should expect anything different from the new justice minister.

The presumption of innocence is for the court of law, not for protecting the reputations of the powerful

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The following is an edited version of opening remarks delivered by Michael Spratt at the 2019 Runnymede Society’s Law and Freedom Conference debate on the #MeToo movement and its effects on the presumption of innocence.

The presumption of innocence is one of the golden threads that holds together our justice system. It operates as a shield between the individual and the overwhelming power of the state. The presumption of innocence forms part of the legal bulwark that prevents unjust and wrongful convictions.

English jurist Sir William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760 said, “all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent suffer.”

He was right. Because the consequences of a wrongful conviction are heartbreakingly devastating. 

Donald Marshall Jr., Steven Truscott, Thomas Sophonow, David Milgaard, Guy Paul Morin. These individuals were not just embarrassed. They did not just lose their jobs. Their reputations were not simply tarnished. They were not denied a seat on the Supreme Court. They did not have their radio shows cancelled – their lives were destroyed and their liberty was lost at the hands of the state.

This is why The Universal Declaration of Human Rights holds that everyone charged with a penal offence has the right to be presumed innocent until proved guilty.

This is why here in Canadasection 11(d) of the Canadian Charter of Rights and Freedoms guarantees: "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

But despite the lofty words of the Charter the presumption of innocence is under attack in our courts.

The police and media frequently publish the names of people who are charged with a crime but who have not been convicted. Reverse-onus bail provisions force individuals charged with offences but are presumed innocent to show why they should be released from jail. And the trend of denial of bail, reliance on minimum sentences and abuses of prosecutorial discretion often provides a powerful inducement for innocent people to plead guilty.

It is true that we need to be vigilant against any fraying of the golden threads that holds our justice system together. 

And even the current the Liberal government, the self-proclaimed “party of the Charter” is dropping the ball. Just last month they passed a law that would force an accused in a sexual assault case – who is presumed to be innocent – to disclose evidence in their possession that shows their accuser to be lying to the prosecution and their accuser. This is an unprecedented in Canadian law and represents a true erosion of the presumption of innocence.

So yes, the presumption of innocence is indeed under attack.

But the most insidious attack on the presumption of innocents in our courtrooms is not coming from rouge crown attorneys or over-reaching, wannabe woke politicians. It is coming from those who would unreasonable see that same standard enforced in our everyday life.

Insisting on the application of the presumption of innocence outside the courtroom diminishes it inside the courtroom.

Now that I have your attention I will let you in on a little secret: The presumption of innocence is a legal construct.

You see, the presumption of innocence operates in our courts of law to protect people charged with crimes from the overwhelming power of the state to deprive them of their liberty. It does not operate to immunize political leaders, famous entertainers or powerful CEOs from scrutiny.

In short, the presumption of innocence is a procedural protection to ensure court fairness – not a moral imperative. 

This is why we do not automatically convict and sentence a self-admitted murderer whose crimes are clearly captured on video. Even where guilt is plainly obvious, proper procedures must be followed and the prosecution must prove guilt beyond a reasonable doubt. 

The presumption of innocence does not mean someone is factually blameless until proven otherwise. To insist on the strict application of the presumption of innocence in everyday life is an absurd and insidious act of complicity to the realities exposed by the #MeToo movement. And watering it down in everyday life devalues it as a strict and exacting legal protection in court.

In no other aspect of our daily lives do we employ the presumption of innocence or apply a burden of proof beyond a reasonable doubt. The presumption of innocence should not be used as an excuse to disregard common sense.

If in everyday life we insisted on the protections that exist in court – the presumption of innocence and strict standards of proof – we would simply stop living. Every time you get in a car there is no guarantee that you will not be involved in an accident. There is no proof beyond a reasonable doubt that your latest investment won’t tank. There is no presumption that your child will make it through the day without being hurt. But we don’t stop driving. We don’t stop investing. We don’t protect our kids in bubble wrap. We don’t stop living.

So why this new insistence that we employ the presumption of innocence and proof beyond a reasonable doubt when it comes complaints of sexual misconduct, harassment and boorish behavior?

Because it is all about protecting the powerful. It is about protecting powerful men.

Patrick Brown, Brett Kavanaugh, Bill Cosby, Louis C.K., Harvey Weinstein – these are the men who some would see protected. And many of the same people who seem so ready to use the presumption of innocence to cover for these men have all been remarkably silent when the real presumption of innocence comes under attack in court.

It is impossible to ignore the consequences of insisting on a strict standard of proof – history shows that this type of complacency has led to inequality, harassment and real harm to women and vulnerable members of society.

Let’s look at the example of Patrick Brown. There were allegations made against him but there were no criminal charges. The state was not trying to imprison him. So, why should the public not be entitled to come to their own conclusions based on their own standards? Why would his defenders force group-think on us?            

I do wonder how these self-styled presumption-of-innocence crusaders think things should have played out. Brown chose to step down as party leader but should he have been encouraged to stay on? Should his caucus have been required to support him? Should the women have been compelled to a tribunal or court to prove their non-criminal allegations? Should the media have been forbidden to report on the allegations? Should the public have been forced to presume him innocent?

Of course not. Any of that would have been absurd.

Now let me ask you this. Would the defenders of an out-of-court presumption of innocence feel comfortable if their kid’s teacher was accused by multiple students of sexual impropriety, but continued teaching until he proven guilty? Should a police officer alleged to have used excessive force be allowed to continue front line policing until the disciplinary process plays out? Of course not.

If your daughter, or your sister, or your friend told you about being the victim of an assault, would you expect her to meet an exacting standard of legal proof. Would you insist on the presumption of innocence for her attacker? Or would you believe her? Brown’s case is no different.

Brown by the way is doing just fine. He is the mayor of Brampton. Louie C.K. is still doing stand-up. And Brett Kavanaugh is on the Supreme Court of the United States of America.

Remember, the presumption of innocence does not mean someone is forever factually blameless until proven beyond any doubt otherwise. I’ve never heard anyone suggest that it’s better to put 10 guilty men on the Supreme Court rather than to risk depriving one federal court judge of a promotion.

We don’t insist on the presumption of innocence or proof beyond a reasonable doubt when we are looking at other political and social issues – even when those issues could fundamentally change our society. There is room for public discussion when it comes to how we should view allegations of sexual misconduct. But we should not use a legal principle designed for our courts to govern the opinions of members of the public outside of court.

As a practicing lawyer, I represent people who are accused of all types of crimes – including sexual offences. I know criminal allegations can destroy lives. And there is no question that we need strong labour and employment protections to mitigate against the consequences of unfounded allegations. I know that false allegations do happen. I have seen them.

We need to be vigilant against any fraying of the golden threads that holds our justice system together. There is plenty of real work to be done there. And there is no question that as a society we should strive to be fair – to both the accusers and the accused. But has the last century been fair to women and victims?

Life, politics, and personal opinion have never been governed by the Marquess of Queensberry Rules. To insist on that in cases like Brett Kavanaugh, Patrick Brown and Harvey Weinstein do real harm both inside and outside the courtroom.

At the end of the day, insisting on the presumption of innocence and proof beyond a reasonable doubt outside the courtroom leads to and does not protect from injustice. 

Liberals' new impaired-driving rules will inevitably target minorities

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This week, the Liberal government’s self-described “toughest impaired driving rules throughout the world” officially became law. And while Bill C-46 may have a bland title, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, it represents a significant expansion of state power and contains a number of evidentiary short cuts that likely violate the Charter of Rights and Freedoms.

Under the new law, the maximum jail sentences for impaired driving has doubled to 10 years. But this is only the tip of the iceberg.

Starting this week, police have the power to detain, question and demand a roadside breath sample from a driver even if there are no grounds that point to any alcohol consumption.

Foreign students, workers, visitors and permanent residents who are convicted under the new law will now lose their immigration status and be banned from Canada – even if it’s their first offence and they receive no jail time.

And it is no longer just an offence to operate a vehicle while impaired; it is now also an offence to be impaired within two hours after operating a vehicle. In other words, drive sober but have a few drinks afterwards and the script is flipped – it’s now up to the accused to prove innocence.

If these new police powers, Trump-style immigration measures, and courtroom shortcuts sound like a relic of the Harper era tough-on-crime agenda, it’s because they are. The new Liberal drunk-driving law is an almost perfect copy of an old Conservative bill and a former Conservative minister’s private member’s bill. This was surprising political plagiarism from a government that said it “will always stand up for the rights of Canadians and will always respect the Charter of Rights and Freedoms.”

In light of the Liberals’ new drunk-driving law, let me add to that pledge: “ … unless you are a visible minority driving a car.” Because that’s who will first feel the impact of the new law.

It used to be that police could only demand a roadside breath sample if they had some suspicion that a driver had alcohol in their body. The new law does away with those minimal requirements and gives police the power to demand a breath sample without any grounds whatsoever.

I’ll let you in on a poorly kept secret. Visible minorities will be targeted under these new police power. Experience has unfortunately demonstrated that “random” detention and search powers are too often exercised in a non-random manner that disproportionately targets racialized and marginalized individuals.

Visible minorities were disproportionately arrested for marijuana offences and were disproportionately stopped and carded by the police. Things don’t get better when minorities get behind the wheel.

In 2016, the results from the Ottawa Police’s Traffic Stop Race Data Collection Project found that visible minorities were disproportionately subjected to traffic stops. The study also found that after being stopped, visible minorities were actually ticketed for driving infractions less often than non-racialized individuals. In other words, minorities were more likely to be stopped by the police for no reason. Why should we expect things to be any different now that we have given the police even more power?

So, minorities will now not only be pulled over and questioned, but required to exit their vehicle, stand on the roadway or sit in a police cruiser, and provide a breath sample. This procedure may be tolerated by the majority of Canadians who are pulled over once every few years at a RIDE stop. But protection against discrimination and arbitrary harassment should not be determined by what the majority will accept.

For those minorities who are “randomly” pulled over five, 10, or a dozen times, for no obvious reason other than the colour of their skin, being required to submit to a breathalyzer will frequently be experienced as humiliating, degrading and offensive.

Perhaps this is why most Canadians oppose the government’s expansion of police powers. Or why the Senate opposed these new powers and amended the law after hearing the testimony of experts.

But the government quickly rejected that Senate amendment, along with an amendment that would have prevented foreign nationals and permanent residents from being automatically declared inadmissible to Canada after a minor driving conviction.

These are not the actions of a government that really cares about evidenced-based criminal justice reforms or fundamental freedoms.

Justice Minister Jody Wilson-Raybould says she has “every expectation” the new laws will be challenged in court. And she is right. But it will be years until those challenges wind their way through our already overburdened justice system.

And until then we are left with a Conservative law of dubious constitutionality dressed up with some new Liberal rhetoric.

Who is the best fictional lawyer of all-time?

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It is a question that ­has divided law offices, torn law-school friendships apart and driven legal nerds to the brink of madness. 

Who is the best fictional lawyer of all-time?

Until recently this has been a question reserved for philosophers. But now, we have the technology to answer the age-old question in the most democratic way possible – an NCAA-style bracket tournament.

And so, at the end of November, the top legal minds at my firm, Abergel Goldstein & Partners, spend days compiling an exhaustive list of the top fictional lawyers. And now we make them battle in a head-to-head competition.

Using a secret scientific method, we have chosen and ranked 64 fictional lawyers from movies, hour-long dramas, cartoons, and sitcoms. Each week, a popular vote will determine which lawyers move on to the next round and which lawyers are thrown out of court.

What qualities does the best fictional lawyer possess? Maybe they display realistic courtroom skills. Perhaps they have the chops to carry the TV show or movie. Maybe they are charismatic and charming. But there really is no 3-part functional and objective test to be employed here. It is all up to the will of the people.

The Simpson’s Lionel Hutz is seeded first in the Cartoon bracket. His courtroom tactical skills are undeniable, “Don't worry, Homer. I have a fool-proof strategy to get you out of here: surprise witnesses, each more surprising than the last. I tell you, the judge won't know what hit him!”

Ben Matlock claimed the top seed in the hour-long drama category. Matlock, the renowned, folksy yet cantankerous defense attorney is worth every penny of his $100,000 retainer fee and should be a role model for any criminal defense lawyer. 

Atticus Finch fought a system of institutionalized racism in the 1962 film adaptation of To Kill a Mockingbird. Although Finch is the number-one seed in the movie category he may carry come baggage following the publication of Go Set a Watchman in 2015. 

Barry Zuckerkorn, the Bluth family’s lawyer, took the top seed in the sitcom category. Because you can’t try a husband and wife for the same crime, right?

However, the full list of fictional lawyers and their rankings were not without some controversy. 

Some pedantic critics decried the inclusion of lawyers like cartoon Johnnie Cochran and Lesra Martin from the movie The Hurricane because they are real people and not fictional lawyers. Technically correct, but this tournament only considers the fictional representation of these lawyers not their real-life catalogue of work.

Some critics were quick to point out that Erin Brockovich was only a law-clerk and not a full-fledged member of the bar. Yes, again technically true, but Brockovich did take down Pacific Gas and Electric Company and kick some legal butt. She is a worthy contestant.

There were some from the chattering class who disputed our rankings. Why is Denny Crane from Boston Legal seeded 16th, they whined?

And some of the olds wanted more L.A. Law lawyers included on the list.

All of these concerns are interesting but ultimately misplaced. The tournament list is perfect – it is all of the critics who are wrong.

Every real-life lawyer has their favorite fake lawyer. Some of us were inspired to become lawyer because a television or movie character. We all name-drop fictional lawyers in our closing argument. And we all strive for the real-life Matlock moment where the case is won with one well timed question.

But this is a battle that will not be won or lost in the courtroom. 

It is time to choose your champion and head over to the AGP website and vote in the tournament

There is a new round of voting each week. Only the victorious lawyers will advance with the ultimate champion crowned on February 3, 2019.

Scheer’s guns and gangs strategy a simple plan for simple minds

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Andrew Scheer and the federal Conservative party have a plan to crack down on guns and gangs. Scheer’s plan is a simple one: End automatic bail eligibility for gang members, revoke parole for gang members and impose minimum sentences for some gang-related offences. Scheer says that his plan, unlike Justin Trudeau’s plan that puts criminals first, will keep Canadians safe.

But simple plans are often the product of simple minds and, worse yet, Scheer’s plan is built on a foundation of half-truths and unconstitutionality.

So, join me as we take a trip of discovery, point by disingenuous point, through Scheer’s gang plan.

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Situation one: A known gang member is arrested. Scheer’s claim: Under Trudeau, the gang member is automatically eligible for bail. Scheer’s plan: Automatic detention and the accused must prove they should be released.

Every person accused of a crime is automatically eligible for bail and, usually, because of pesky principles such as the presumption of innocence, it is the state that must show why detention is necessary. Perhaps the accused is a flight risk or maybe there is a likelihood that they will commit further offences or, in rare cases, their release could undermine confidence in the justice system. In any of these cases, gang member or not, the accused will be detained.

But, in some cases, the script is flipped and the onus shifts to the accused. If the accused was already out on bail or the offence involved a firearm, terrorism or the trafficking of hard drugs, it is then the accused who must show why they should be released.

And what about gang-related crimes? It is already the case that when an offence is alleged to have been committed for the benefit of or at the direction of or in association with a criminal organization, it is the accused who must prove why they should be released.

Scheer’s proposal adds nothing but torqued rhetoric.

But Scheer not only simply misrepresents the current state of the law he also suggests a radical and unconstitutional expansion of reverse-onus bail provisions.

You see, although criminal organizations are defined in the Criminal Code, there is no specific definition of “gang” or “known gang member.” In the eyes of the police — and I wager, Scheer — the definition of “gang member” is broad and sweeping. Someone can be labelled a gang member if they are found to be displaying common or symbolic gang identification or if they have been seen with a gang member or if there is other information that the person is a “gang member.”

Scheer’s plan is a recipe for racism and discrimination. Left undefined, the word “gang” is often a dog whistle. Scheer’s plan is also highly unconstitutional. Under the Conservatives, a “known gang member” with no prior criminal record who steals a chocolate bar would face a reverse-onus bail situation. This is a state of affairs that no court would ever let stand.

Situation two: A known full-patch biker gang member is arrested. Scheer’s claim: Under Trudeau, prosecutors must prove the known biker gang is a criminal group. Scheer’s plan: The known biker gang is considered a criminal group.

Yes, sometimes, prosecutors need to prove things. That’s sort of their job. But it is not difficult to prove the Hells Angels are a criminal organization.

Scheer offers no details by which criteria these “known gangs” will be defined. Nor is there any evidence that the small step of proving that an organization meets the current definition of a criminal organization has imperilled prosecutions or resulted in decreased public safety.

In short, this Scheer proposal is a solution in search of a problem.

Situation three: Convicted gang member is paroled and reunites with former gang. Scheer’s claim: Under Trudeau: nothing happens. 

Scheer’s plan: Gang member goes back to prison.

When someone is released on parole, they are still serving their sentence and there are always conditions attached to that parole. Those conditions almost always include non-association conditions. The terms can be very specific (to not associate with named people) or very broad (to not associate with anyone with a criminal record). Any violation of those conditions results in the automatic revocation of parole and a return to jail.

It is an outright lie to say that if a gang member is released and reunites with their former gang, nothing happens. And remember how broad the definition of a “gang member” can be. Scheer’s plan will result in the imprisonment of a disproportionate number of racialized minorities for simply returning to their neighbourhoods.

And courts tend to frown upon laws that are so broad and vague that they could result in the deprivation of liberty without the commission of any offence.

On to Scheer’s last three situations, which are all similar — so let’s deal with those together.

Situation: A gang member tells someone to steal a car, or commits aggravated assault or tells someone to commit aggravated assault on behalf of a gang. Scheer’s claim: Under Trudeau, they get a suspended sentence or a fine. 

Scheer’s plan: They get a mandatory sentence in federal prison.

Let’s call out the lie first. A gang member (or anyone) who permanently wounds or mains someone — in any circumstance — will almost never receive a suspended sentence or a fine. Just because a sentence is possible does not mean it is at all likely.

To illustrate this point, let’s turn Scheer’s twisted logic back at him. Currently, there is no mandatory minimum sentence for manslaughter. This means a sentence anywhere from a small fine to life in prison is possible. So, under Scheer’s plan, can it be said that a gang member who commits manslaughter will receive only a suspended sentence or fine? Of course not.

But there is nothing in Scheer’s proposal that would change the possible sentence for manslaughter. So why is Andrew Scheer soft on gang manslaughterers?

Scheer’s solution to the strawman he has built is minimum sentences. This is not surprising. Minimum sentences are the first chapter in the Conservatives small-minded justice playbook. And like much of Conservative justice policy, it sounds tough but simply doesn’t work.

All the available evidence shows that minimum sentences don’t deter crime. Even worse, minimum sentences have been shown to lead to higher rates of recidivism and less safe communities. They also have been shown to be a major factor in our country’s ever-increasing court delays.

Scheer not only misrepresents the current legal framework and realities in the justice system but he proposes a solution that won’t reduce crime and will exacerbate the delay problems in our courts.

Oh, and minimum sentences after minimum sentences — in addition to much of Stephen Harper’s criminal justice laws — have already been found to violate the Constitution. If Scheer is going to mislead Canadians, he could at least do it in a way that doesn’t violate the Charter.

There you have it. Andrew Scheer’s plan to crack down on gangs and make Canada safer is built on a misleading foundation. Scheer misrepresents the current state of the Criminal Code, he lies about soft sentences being handed out under Trudeau and he provides an overly broad and oddly specific list of non-fixes.

There is a desperate need to revaluate how we tackle gun violence in this country.

But Scheer’s proposals do us all a disservice. Not only will they not work but they muddy the intellectual waters of this important policy debate.

It is unfortunate that when there is so much to be critical of when it comes to Liberal justice policy Scheer has decided to drink the leftover Harper Kool-Aid.