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Due process is for the courts, not for #MeToo, argues lawyer

Criminal defence lawyer Michael Spratt argues that due process is a concern for the courts — when someone is charged with an offence — but should not be what sets the bar outside of the legal system.
While some argue that people like Patrick Brown deserve due process, criminal defence lawyer Michael Spratt says the presumption of innocence is for courtrooms, not politics. (CBC)
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When Patrick Brown, the leader of the Ontario Progressive Conservatives, resigned after allegations of inappropriate sexual behaviour, it sparked a conversation about due process, on social media and beyond.

Some questioned whether it had been conspicuously absent in the circumstances around Brown's downfall. And concerns were raised over whether it was fair that politicians were losing their positions over allegations that had not gone through a process of investigation.

Criminal defence lawyer Michael Spratt argues that due process is a concern for the courts — when someone is charged with an offence — but should not be what sets the bar outside of the legal system. 

I don't think it's unfair to insist that we have different rules for politics than we do in the courtroom.- Michael Spratt, criminal defence lawyer

Spratt said, for example, that if a friend or family member discloses an allegation to us, we don't take a neutral stance until the story is proven.

"That's not how we approach everyday situations with common sense in the real world," he said. "My worry is that not only do we sort of lose some common sense in society when we insist on those strict legal protections outside of the court, but I actually think that it can do damage to that very important principle inside the court," Spratt told The Current's Anna Maria Tremonti.

"I don't think it's unfair to insist that we have different rules for politics than we do in the courtroom," he added.


A rush to judgment

But employment lawyer and workplace investigator Hena Singh worries that we are rushing to judgment with politicians like Brown.

"I don't think fairness is being achieved here," Singh told Tremonti. "I don't necessarily think we need to have a strict adherence to the courtroom standard. I think we need to implement some sort of fairness so we're not drawing conclusions without the factual basis to do so."

"As a society... there's a magnifying glass on behaviour with respect to sexual harassment, sexual assault, and I think we need to be careful," she said. "I don't think that the public is getting... all of the relevant facts."

We've shown women if you come forward, actions will be taken without due process.- Hena Singh, employment lawyer and workplace investigator 

Singh would like to see an investigation in these cases, similar to the ones employers are required to do when someone comes forward with an allegation, where an investigator is hired to interview all parties. She would have liked to see this happen before Brown resigned as party leader.

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

"If we had just stopped for a moment, brought in an investigator, we could have had an answer within 48 hours about what actually occurred," said Singh. "Right now, we're all left guessing."

Singh feels Brown hasn't been given a chance to properly respond to the allegations in a way that would give him enough time to think through his response before acting. But Spratt disagreed.

"To suggest that individuals like Patrick Brown don't have a voice or can't tell their side of the story, I think is...setting up a bit of a straw man," said Spratt. "These men who have all been accused, let's face it, are powerful white men in positions of power." 

Spratt says that the public can distinguish between anonymous allegations on social media, and allegations investigated by media organizations that have published the story without naming the accusers.

"If the allegation is anonymous, is bereft of any detail, is outrageous, I trust that as a society we can employ a sort of reasonable thinking when evaluating those allegations," said Spratt.

Prime Minister Justin Trudeau spoke with Chris Hall the host of CBC Radio's The House 1:14

But Singh says that though they are rare, we do need to be careful of false allegations.

"We've shown women if you come forward, actions will be taken without due process," said Singh. "It is going to be absolutely rare that someone comes forward with false allegations, but the consequences, they're big."'
 

The consequences of an investigation

Spratt raised concerns that an investigation could compel accusers to answer questions and be subject to cross-examination, and could compel the media not to report on the investigation.

"No one yet has suggested what would be a tenable, workable system that wouldn't cause harm," he said. 

Federal Sport Minister Kent Hehr resigned from cabinet Jan. 25, pending an investigation into allegations of sexual harassment dating back to his years as an Alberta MLA. (CBC)

But Singh argued that an investigation wouldn't need to compel people to be subject to questioning — investigators could work around those who don't want to participate. 

The discussion around due process in social media and beyond has brought up the idea that all men are now vulnerable to losing their positions in the face of this type of allegation, but Spratt disagreed.

"I think saying that it's open season on all men isn't the case at all," said Spratt. "I think that can lead to... the lack of, you know, an opportunity to try to change the status quo here."

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This segment was produced by The Current's Rosa Kim, Julie Crysler and Kori Sidaway.