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

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 Canada, section 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.