Opinion

The presumption of innocence is for courtrooms, not politics

The presumption of innocence operates in our courts of law to protect people charged with crimes from the power of the state to deprive them of their liberty. It does not operate to immunize political leaders from scrutiny.

It should not be used as an excuse to disregard common sense

There is no question that as a society we should strive to be fair – to both the accusers and accused. Politics, however, has never been governed by the Marquess of Queensberry Rules.

The political reckoning was quick. In the span of less than a week, allegations of sexual harassment and sexual impropriety destroyed the political futures of four separate men in politics.

Nova Scotia PC leader Jamie Baillie was forced out as party leader and later resigned his seat in the legislature after allegations of workplace sexual harassment. Liberal MP Kent Hehr, who somehow survived prior allegations of boorish comments, resigned from cabinet following tweets alleging inappropriate behaviour. (At the time of writing, Hehr remains in caucus, though an investigation is underway.) Ontario PC Party president Rick Dykstra resigned his post on Sunday after Maclean's revealed he had been investigated for sexual assault of young staffer in 2014, when Dykstra was an MP.

And then there is Patrick Brown, the now-former leader of the Ontario PCs. Though the allegations against him don't appear to be criminal, they are shockingly serious: Brown is alleged to have taken advantage of his position of power over very young women, plied them with alcohol and then made inappropriate sexual advances.

Ontario Progressive Conservative Leader Patrick Brown denied allegations of sexual misconduct at an unexpected news conference at Queen's Park Wednesday night. 1:27

Shortly after the story broke, Brown held a disastrous press conference where he denied the allegations and then ran from the media. Hours later, he resigned from his position as leader of the Ontario Progressive Conservatives.

It was a powerful week for the societally important #MeToo movement. But it seems that old ways of thinking die hard for some. Certain columnists wrote that what happened to Brown was wrong and that "every man in the world is now vulnerable." Others suggested that Patrick Brown's downfall was an affront to fairness. "What of the presumption of innocence?" they cried.

Let me let you in on a little secret: the presumption of innocence is a legal construct. Yes, the Canadian Charter of Rights and Freedoms says that people are presumed innocent – if they have been charged with an offence.

Protection from the power of the state

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

In short, the presumption of innocence is a procedural protection to ensure fairness – not a moral imperative. This is why we do not automatically convict and sentence a self-admitted murderer whose crime is 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. But 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. 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.

But that is exactly what those advocating for Brown's right to innocence have done. They cast the complainants as "anonymous" and the allegations as being born out of "political malice," but of course that is not true.

The complaints were made on a confidential — not anonymous — basis to reputable journalists. These were not rumours and innuendo but actual detailed accounts backed up with photographs and text messages. The allegations against Brown may have been an "open secret" in media and political circles, but they were not reported until CTV could properly vet the story.

So why were the identities of the women kept confidential? Well, maybe ask the complainant who spoke out about Kent Hehr – she has received death threats.

Extraordinary skepticism 

Quite simply, there is nothing about the allegations that warrants the level of skepticism that seems to fill the hearts of Brown's defenders.

I do wonder how these self-styled Charter 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 the women have been compelled to a tribunal or court to prove their allegations? Should the media have been forbidden to report on the allegations? Any of this would have been absurd.

Would the aforementioned columnists feel comfortable if their kid's teacher, for example, was accused by multiple students of sexual assault, but kept teaching until proven guilty? Should a police officer alleged to have used excessive force be allowed to continue front line policing?

Of course not.

If your neighbour, daughter, sister, or friend told you about an assault, would you expect exacting legal proof and insist on procedural protections for her attacker?

Of course not.

Brown's case is no different.

Hehr no longer holds his cabinet position though he remains in the Liberal caucus. (CBC)

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

I know that false allegations do happen. I have seen them. And it is true that we need to be vigilant against any fraying of one of the golden threads that holds our justice system together.

But none of this means that people like Brown, or Hehr, or Baillie or Dykstra should be given a free pass outside of court. And for all the talk of the presumption of innocence, that is precisely the practical implication of what has been suggested.

There is no question that as a society we should strive to be fair – to both the accusers and accused. Politics, however, has never been governed by the Marquis of Queensberry rules. Those arguing that Brown has been treated unfairly have conveniently forgotten that context matters, and the allegations against Brown are detailed and troubling.

And let's not forget that Brown has a public platform to respond to and refute the allegations – it was ultimately his choice to resign and it is his choice to remain silent since then.

At the end of the day, insisting on proof beyond a reasonable doubt outside the courtroom can lead to, and certainly does not protect from, injustice.

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.

About the Author

Michael Spratt

Michael Spratt is a partner at the Ottawa criminal law firm Abergel Goldstein & Partners. He has served as a director of the Criminal Lawyers’ Association and vice president of the Defence Counsel Association of Ottawa. He is an award-winning blogger and podcaster who frequently appears as an expert witness before the House of Commons and the Senate. Contact Michael at michaelspratt.com or on Twitter at: