Canada’s record suspension system is punitive and must be fixed


It’s been more than 200 years since a hot iron was used to mark permanent letters on the bodies of people convicted of crimes in courtrooms across England – the birthplace of Canada’s common law system of justice. ‘T’ for theft, ‘F’ for felon, and ‘M’ for murder. Though this violent branding no longer occurs, we still mark people through the imposition of a criminal record that is often just as damning.

A criminal record is almost as visible a brand as the hot iron markings. An increasing number of organizations, employers, volunteer managers, landlords, educational institutions and government departments insist on criminal background checks as part of their hiring and management practices. This means even those with minor records cannot fully participate in society after they’ve completed their sentence.

Canada’s pardon system, as it existed prior to 2012, provided some relief from the stigma associated with the criminal mark. People could apply to have their record sealed and set aside in order to find employment, return to school, volunteer in their communities or secure housing.

This was not only a benefit to the individual with a criminal record, it was good for our communities too. The research is clear: Pro-social community engagement results in decreased recidivism and increased public safety.

Canada’s pardon system, as it existed prior to 2012, provided some relief from the stigma associated with the criminal mark.

But unfortunately, instead of moving forward on even more progressive pardon laws, the Harper government chose to use the file to further its law and order agenda. Changes made by the Conservatives eliminated pardons in favour of “record suspensions” and made necessary relief harder to come by – especially for those who are already poor and marginalized.

The current 10-step record suspension application is needlessly complex and burdensome. It is a procedural quagmire that is almost unnavigable for lawyers, let alone the general public. The wait times to apply are unnecessarily long: 10 years for indictable offences and five years for the most minor of offences. And then there is the cost of well over $600 to even apply for a record suspension. Bottom line: this two-tiered system means if you are poor, you are branded for life.

The simple truth is that Canada’s record suspension system is punitive and it must be fixed.

Those aren’t our words. They were spoken by Minister of Public Safety Ralph Goodale in January 2016 when he vowed to overhaul Canada’s punitive pardon system. Well, it’s been more than three years and Goodale’s own record has been one of shameful inaction. He has done nothing to overhaul the Criminal Records Act, even after aspects of it were found unconstitutional by courts in Ontario and British Columbia.

Advocates and people with criminal records have grown frustrated by the lack of initiative, but recently we were provided with a glimmer of hope by Sen. Kim Pate, who introduced Bill S-258, An Act to amend the Criminal Records Act.

Sen. Kim Pate, shown here visiting the segregation unit at the Millhaven Institute had introduced a bill that would allow criminal records to expire after a set time period without a complicated application process and with no fee. OTTWP

Bill S-258 builds on decades of research and public consultation to do the work Goodale refuses to do. The legislation would allow criminal records to expire after a set time period without a complicated application process and with no fee.

If passed, this bill would also automatically grant pardons to people convicted of acts that are no longer illegal. For example, the convictions for historic offences based on discriminatory laws or records for non-violent cannabis offences would not be a lasting mark of shame and oppression.

Like all legislation in its early stages, Sen. Pate’s bill can be improved upon through parliamentary committee study, but it represents a monumental step forward for fairness, public safety and evidence-based justice policy.

While the previous federal government offloaded the costs of pardons completely onto people with criminal records, in reality we all pay the price for this broken system. It is in the public interest to have a robust system of pardons, not only because of piles of research that demonstrate sealing criminal records supports reintegration but also because we all benefit from a system that allows for restoration.

The Liberal government seems content with the status quo, but just as we look back on the hot iron with disgust and revulsion, it should remember that future generations will view its inaction in the same way.

Michael Spratt is an advocate for progressive criminal justice reform and a partner at the Ottawa criminal law firm Abergel Goldstein & Partners.

Samantha McAleese is a social justice advocate, a PhD Candidate in sociology at Carleton University, and a member of the Criminalization and Punishment Education Project.

The real scandal in the SNC-Lavalin affair


Last week, Clerk of the Privy Council Michael Wernick delivered some jaw-dropping evidence at the House of Commons Committee on Justice and Human Rights hearing into allegations that inappropriate political pressure was directed at former attorney general Jody Wilson-Raybould to cut SNC-Lavalin a sweetheart deal.

True, Wernick was clear in his defence of the government. He held firm that there was “no inappropriate pressure on the minister at any time.” According to him, it was all simply, “lawful advocacy.” 

But, perhaps this is not an issue where Wernick’s opinion should rule the day. After all, Wernick was not privy to all the SNC discussions, so it is unclear how he can be so sure there was never any inappropriate pressure. 

Nor can we lose sight of that fact that Wernick is far from a disinterested party in this sordid affair. Wernick’s reputation is on the line. So, jaws should have hit the floor when, at the end of a long day in the hot seat, Wernick seemingly and unwittingly implicated himself in wrongdoing.

Because when you strip away Wernick’s opinions and look at the facts, the conclusion that there was a co-ordinated effort to have Wilson-Raybould change her decision seems unavoidable. In reality, there need not be much daylight between Wernick’s version of events and the evidence of Jody Wilson-Raybould for the government to have crossed the Shawcross line into inappropriate and potentially illegal behaviour.

First, a reminder of how we got here.

SNC-Lavalin was a bad actor. There can be no sugarcoating that fact. The World Bank has blacklisted SNC over high-level allegations of conspiracy. And the company has been implicated in multiple corruption scandals, including illegally donating more than $83,000 to the Liberal Party. 

Currently, SNC is facing criminal charges relating to allegations of bribing Libyan officials in exchange for construction contracts between 2001 and 2011. Apparently, SNC really wanted to help Muammar Gaddafi build some prisons.

A conviction would result in a 10-year ban on bidding on federal contracts — a ban that could destroy the company.

But there is a way out. You see, after intense lobbying by SNC, a brand new get-out-of-jail-free card was buried in a 2018 omnibus, budget-implementation bill. The new deferred prosecution agreement provision would allow prosecutors, if SNC met certain legal criteria, to drop criminal charges.

But on Sept. 4, 2018, the director of public prosecutions, Kathleen Roussel, decided against offering SNC any deals. It was probably a pretty easy call because SNC met virtually none of the factors in the new legislation to justify the sweetheart deal.

So, SNC began lobbying for Jody Wilson-Raybould to overrule the director of public prosecutions. 

Wilson-Raybould could do it, but that decision is hers and hers alone. The principle is called the Shawcross doctrine and it’s pretty simple: The responsibility for prosecutorial decision, such as overturning the SNC decision, rests with the attorney general, and she is not to be put under any pressure by the government.

And this is where Wernick’s evidence becomes important. Because his evidence, examined in context, leads inextricably to the conclusion that there was pressure put on Wilson-Raybould to reverse the SNC decision.

And here is where the timeline, as confirmed by Wernick, matters.

On Sept. 4, 2018, Roussel confirmed to SNC that she would not offer the company a deferred prosecution agreement. 

Wernick testified that shortly after that decision was made, Prime Minister Justin Trudeau raised the SNC issue with Wilson-Raybould. She did not seek his advice. He came to her. Liberal insiders have described that meeting as a “vigorous debate” and Trudeau confirmed that after that debate Wilson-Raybould asked if she was being directed to reverse her decision. 

Demonstrating a strange and personal touch, Warnick met with SNC the following day to tell the company that the decision had been made and the prosecutor’s decision would not be overturned. He said the only route SNC had was through its lawyers and the court process.

SNC, however, seemed to think there were indeed other routes because, in October, it continued to lobbysenior members of the PMO.

It must have worked because on Dece. 5, 2018, Gerald Butts — the same Gerald Butts who resigned from the PMO because of the SNC affair — held a private meeting with Wilson-Raybould. The Liberal-controlled justice committee blocked efforts to subpoena Butts to testify, but it would stretch credulity to think the Butts meeting was not an attempt to press Wilson-Raybould on her decision. 

Wernick also confirmed that, on Dec. 18, 2018, senior staff from the PMO called Wilson-Raybould’s office to re-engage on the SNC matter. Remember, Wilson-Raybould had already made her decision, there had already been an unsolicited vigorous debate  and there had been a followup meeting with Trudeau’s principle secretary, Butts. 

And then Wernick delivered the most damming evidence of inappropriate pressure — his own. 

On Dec. 19, 2018, the day after the PMO’s phone call to Wilson-Raybould’s office, Wernick intervened directly. 

To be clear, Wilson-Raybould was not seeking advice. But Wernick sure did give it. He told Wilson-Raybould that “her colleagues and the prime minister were quite anxious” and there was concern over what the economic impact would be.

If the first conversation with Trudeau in September was a vigorous debate and the repeated contact by the PMO was simply lawful advocacy, then Wernick’s conversation could easily be seen as pressure that crossed the Shawcross line.

Trudeau, the PMO and Wernick all shared the view that a deferred prosecution agreement should be offered to SNC. This is why they continually engaged Wilson-Raybould on the issue. These overtures were indeed advocacy, but how can they not be seen as pressure to reverse her decision? Think of the workers. Your colleagues want you to do it. The prime minister wants you to do it. A lot of people are worried about the decision you made. You know what we all want you to do. But the decision is yours.

If indeed there was unsolicited but lawful advocacy, at some point, the camel’s back must have broken under the repeated pressure.

Wernick testimony also disclosed that he asked Wilson-Raybould to take into account illegal factors. Although one of the stated purposes of deferred prosecution agreements is to reduce negative consequences for innocent workers, the factors listed in the Criminal Code favouring remediation agreements are silent on economic interests. But it gets worse because the Criminal Code specifically prohibits considerations of the national economic interests — a factor that seemed to weigh heavily in Wernick’s “lawful advocacy.” 

So, not only was pressure put on Wilson-Raybould to reverse her decision, but there was pressure to make a decision based on factors that were not available in law.

Wenick told the justice committee that he was “sure the minister felt pressure to get it right.” And it seems that Wenick, Butts, the PMO and Trudeau himself went to great lengths to tell her what the right decision was.

And that is the real scandal.

SNC-Lavalin controversy could contain key to Wilson-Raybould's shortcomings


Maybe I was wrong all along. 

Maybe Jody Wilson-Raybould, Canada’s former minister of justice and attorney general, was honestly trying to follow through on the government’s progressive pre-election justice promises.

Maybe the last three-and-a-half years of inaction, bungled justice legislation and pandering to corporations was all the PMO’s doing.

The Globe and Mail’s bombshell report of alleged political interference by the PMO in the SNC-Lavalin case not only breathes life into the idea that Wilson-Raybould was handcuffed by Justin Trudeau, it also paints a picture of a government that has abandoned any pretense of sunny ways.

Before I fall on my sword and admit the possibility that, just maybe, I could have underestimated Wilson-Raybould, let’s set the factual scene.

In 2015, Trudeau and the Liberals campaigned on the promise of real changeTM and the slogan “better is possible.” They promised open and transparent governments. They said that too much power had been concentrated in the hands of Stephen Harper and his office. They promised to reverse the trend of omnibus legislation. They said they would help the middle class. And they said they would bring about much needed progressive justice reform.

They sure did say a lot of words. But let’s look at the government’s actions.

Over the last three-and-a-half years, there has been little progress in fulfilling the criminal justice promises set out in Wilson-Raybould’s mandate letter. 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. And there have been precious few measures to address the disproportionate impact of the criminal justice system on Indigenous, racialized, impoverished and marginalized communities.

However, in 2018, there was a brand new criminal law passed. It was never talked about during the election and it certainly was not in the mandate letter. But, nonetheless, the new-to-Canada concept of a deferred prosecution agreement for criminal offences was buried on page 527 of the 556-page omnibus budget implementation bill. The amendment was so well hidden that even Liberal MPs sitting on the House of Commons Finance Committee were caught by surprise.

This new corporate loophole works something like this. Step one: A corporation engages in a criminal activity, such as a massive fraud or conspiracy. Step two: The corporation is caught and charged criminally. Step three: The prosecutor reviews the file and determines that there is a reasonable prospect of conviction. Step four: If the corporation agrees that it committed a crime and pays back all of the ill-gotten profits, then the prosecutor can ask the court to drop all criminal charges.

Basically, the new provision means a corporation can sit back and wait to see if they are caught in a criminal scheme and then worm their way out of criminal sanctions.

These new Criminal Code remediation agreements are not available to individuals, unions or other public bodies — only rich corporations.

After the remediation agreement became law, SNC-Lavalin, which is facing criminal charges for its alleged role in a scheme to bribe Libyan officials to obtain advantage and influence under the Muammar Gaddafi regime, sprang into action.

SCN-Lavalin lobbied the PMO hard, even meeting with Trudeau’s top adviser and influencer, Gerald Butts. And what did they discuss? You guessed it: justice, law enforcement and, of course, deferred prosecution agreements.

But in October 2018, the government lawyers — the ones who were actually prosecuting SNC — slammed the door shut on any sweetheart corporate deal.  

That is the context in which the PMO is alleged to have put pressure on Wilson-Raybould to overrule her prosecutors.

But it gets worse. It is reported that Wilson-Raybould refused to meddle in the court case. And then she was demoted from the justice portfolio and replaced with Quebec backbencher David Lametti

Was Wilson-Raybould’s demotion related to her decision to resist the PMO’s pressure in the SNC case? She has refused to comment — claiming lawyer-client privilege — a privilege that, even if applicable, could easily be waived by Trudeau. But in her unprecedented departure letter, Wilson-Raybould wrote that she was always “willing to speak truth to power” and that the role of the attorney general of Canada “demands a measure of principled independence.”

This is all political intrigue at its highest. And it would seem that the government has broken a fist-full of promises: shunning omnibus bills, looking out for the middle class over powerful corporations, embracing transparency and moving away from centralized power. But the political theatre can’t distract from the reality that these allegations are very serious. 

This is not a case of pork-barrel senators and housing expenses. It’s much, much more serious. The PMO is alleged to have violated an important constitutional principle by interfering with the foundational underpinnings of our justice system.

Shoes always come in pairs and we are still waiting for the other one to drop. But maybe this incident also speaks to Wilson-Raybould’s history of failure as minister of justice.

Maybe Wilson-Raybould was being held back and interfered with in other aspects of her portfolio. 

So, maybe I was wrong about Wilson-Raybould this whole time. Maybe she was trying to move forward with justice reforms but simply did not have the principle and gumption to resign and publicly do what she claims to have done in private — speak truth to power.

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


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


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.