Why we need to get over our fixation with due process

OPINION: Commentators have been focusing on due process in the wake of sexual-misconduct allegations against Canadian politicians. Here’s what they should be focusing on instead, writes Chantal Braganza
By Chantal Braganza - Published on January 31, 2018
former Ontario PC leader Patrick Brown
Patrick Brown stepped down as leader of the Progressive Conservatives on January 25, after allegations of sexual misconduct. (Aaron Vincent Elkaim/CP)



​You’ve likely heard the term “due process” bandied about quite a bit over the past few months — most recently, by a significant number of Canadian columnists, who’ve been mulling over how due process should or shouldn’t apply to Patrick Brown. The former leader of the Ontario Progressive Conservative Party resigned just hours after CTV News reported last Wednesday on allegations of sexual misconduct. Since last week, three other Canadian politicians, one Liberal and two Conservative, have left their posts over separate claims that range from harassment to assault. 

It’s taken us a beat to catch up, but this recent string of exeunts seems to have ignited the cyclical conversation American publications have been engaged in since the New York Times’s revelations about Harvey Weinstein last October. A high-profile man is accused, often by multiple women, of sexual harassment; whether by choice or as the result of peer/employer pressure, he leaves his job; then everyone debates whether this individual is owed, or has received, due process.

The term “due process” has a specific legal meaning. The 1960 Canadian Bill of Rights, the country’s first federal human rights law, addresses the former, guaranteeing “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.” In other words, a person has the right to remain alive, physically safe, and free of imprisonment, and to own property if they so choose, unless a court decides otherwise on those last two. The United States Constitution uses similar language in its Fifth and Fourteenth Amendments.  

Despite what columnists such as Rosie DiManno would have you believe, allegations about an employee’s behaviour don’t have to register as explicitly criminal in order to be deemed an issue by human resources or political campaign staff. HR departments have a well-documented history of protecting the best interests of the employer over the employee when it comes to harassment claims — only relatively recently, and in high-profile cases, have there been signs that the accused is no longer naturally favoured. Politicians, on the other hand, have found themselves out of a job after such missteps as expensing a $16 glass of orange juice

It’s good for Globe and Mail editorials to point out flawed thinking around what constitutes a viable political campaign or for legal experts to help us brush up on the basics of procedural law. But I’d like to suggest something else.


We should look instead at how the HR policies supposedly in place to handle workplace harassment haven’t been followed. Or at how there were no HR policies in place to handle workplace harassment — as seems to have been the case in February 2014, when a former staffer of the Ontario Conservative Party says she was sexually assaulted by former party president Rick Dykstra, who resigned on January 28. We might look at what other supports, in addition to Bill C-65 — legislation to standardize workplace-harassment reporting and investigation procedures that recently passed its second reading — could be made available to those who still don’t feel safe reporting abuses of power.

Instead of crying “Whither the presumption of innocence?” or patiently explaining that the term is a legal construct, we should encourage journalists to speak more openly with their readers about how the stories they report go from a network of whispers to, in the best cases, deeply reported pieces that rely on vetted sources, who may choose to go unnamed. Slagging off CTV News’s reliance on confidential sources for the Brown story the way Christie Blatchford does suggests sloppy reporting on the part of the journalists involved — as if they hadn’t spoken to the sources themselves, run their own background checks, and reviewed (with her consent) one of the accuser’s social-media communications with Brown. It also ignores the fact that such women may choose to remain anonymous, not for some nefarious political reason, but because they want to avoid the kind of harassment and threats received by one of the women who publicly raised issues with the alleged behavior of Kent Hehr, until recently the minister of sport and persons with disabilities.  

Conversations constructed as either/or debates are oppositional, easy to situate yourself in, and, if looked at cynically, easier to understand. Either you believe in due process, or you don’t — and if you question its role in discussions about changing workplace cultures that encourage silence around sexual violence, you’re seen as falling into the latter camp, and written off as shrill and unreasonable. I’d venture to say that many of those who insist on this type of logic are the very same people who characterize the phrase “Believe women” as an unproductive moral absolute. 

To be clear, when I ask that we free ourselves from our fixation on due process, I’m not saying it’s not an important pillar of our legal system or that an accusation alone merits someone’s loss of employment. I’m asking that it not take up all the oxygen in the room. Letting it do so suggests that innocent men felled by false accusations is a trending pattern in the wake of #MeToo and that our empathy and concern should first be directed at the potential victims of this danger — instead of at the overwhelming number of women who have experienced some form of sexual harassment or violence at work and don’t feel safe speaking about it. 


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