Presumption of innocence is a legal term referring to criminal charges. In civil matters, we evaluate allegations based on the balance of probabilities.
By Ryan McGreal
Published January 29, 2018
Last Wednesday, a bombshell report from CTV News documented serious sexual misconduct allegations against Patrick Brown, who was the leader of the Ontario Progressive Conservative Party.
Brown tearfully denied the allegations and vowed to stay on as leader in a short, awkward press conference just minutes before the story aired, but it was too late. His senior staff resigned en masse and a middle-of-the-night caucus conference call made it clear that he had no choice but to step down.
Since then, a number of commentators have seized on this to claim the #MeToo campaign against sexual misconduct has gone too far. A frequent argument in the anti-MeToo backlash is the claim that Brown has been denied his right to "the presumption of innocence." See, for example, here, here and here.
This is a highly misleading line of reasoning from people who ought to know better.
The presumption of innocence is a legal term referring specifically to criminal charges. Everyone who is charged with a crime has a presumption of innocence and has the right to be considered innocent until proven guilty in a court of law.
Civil matters, on the other hand, are guided not by the presumption of innocence but by the balance of probabilities, also sometimes referred to as the preponderance of evidence.
This is why, for example, OJ Simpson was found not guilty of murder in his criminal murder trial - his lawyer managed to introduce a reasonable doubt - but was then found guilty in his civil wrongful death trial. The balance of probabilities was strongly tilted toward his having caused her death.
Patrick Brown has not been charged with a crime, let alone convicted of a crime or sentenced to prison. He was pressured to step down from the leadership of a provincial party, not hauled away in handcuffs. As such, presumption of innocence is strictly a moot point.
The important issue here is whether the allegations are credible.
It certainly looks like CTV did their due diligence as professional journalists before running the story. It documents a similar pattern of behaviour described by two different women and is backed by documentation and corroborating statements from several other people.
In addition, we have learned that several news agencies have been investigating sexual misconduct allegations against Brown for months.
We found out that PC MPP Lisa MacLeod brought her concerns about Brown to the party several times, most recently last December, and was ignored. Likewise, we have also learned that Conservative aide Dimitri Soudas knew about the rumours.
We are also hearing that it was something of an "open secret" in Barrie that he was known to be creepy with women. A staffer has even acknowledged that Brown's staff ran drills on how to respond if serious allegations came out.
I am quite confident that more women will come forward now that this is in the open.
In other words, the balance of probability strongly supports taking this seriously, and it is entirely proper that Brown was forced to step down from his leadership role in the party.
There is nothing unfair about Brown's abrupt fall from grace. The #MeToo movement has not overreached, but is proceeding exactly as needed to identify patterns of inappropriate behaviour and force a necessary, long-awaited conversation about how we can transform the terms of engagement to uphold the respect and dignity of all people, especially women.
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