I’m adamantly in favour of due process, understood as applied natural justice. However, it is a dangerous concept in the sense that it is a) something that most people wish to be respected, and b) often invoked only when it is claimed to be lacking, not as a positive model to follow. It is similar to the “Rule of Law”, in that regard. It should fall on those decrying the lack of due process, then, why it is lacking in a given situation, but also, and more importantly, *how* it could be respected.
One recurring theme since women—overwhelmingly women, though not exclusively—have publicly denounced either acts amounting to criminal sexual assault, or socially and sexually improper acts that do not amount to crimes, is that the people implicated are denied due process. This is especially true when the people targeted by allegations suffer consequences such as lost financial opportunities or customers, social ostracising, and more generally bad public perception. The subtext of this outcry often is that only a criminal conviction would justify such consequences. Criminal procedure, therefore, would be the only acceptable due process—or at least, other procedures should emulate it—. It is worth first exploring this question.
The main reason why “due process” arguments focus on the criminal process is its central tenet of the presumption of innocence. In Canada, a person cannot be criminally punished until their guilt is established “according to law in a fair and public hearing by an independent and impartial tribunal”.1 Similarly, in the United States of America, none shall “be deprived of life, liberty, or property, without due process of law”.2 At first glance, it thus may seem that only the criminal context can afford due process. Of course, that is mistaken: due process can apply to non-criminal procedures. Else, there would be no reason to denounce its lack thereof outside of it. Still, does it always include the notion of presumption of innocence? I have explained in the past (in French) why the presumption of innocence is only a principle of State restraint: «Concilier présomption d’innocence et ouverture aux victims.» But let’s pretend that it should be expanded to outside of the criminal courtroom. Should it be a necessary requirement of due process everywhere?
That is a bit of a puzzle. After all, “[i]f the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law.”3 Yet, we recognise that though a criminal conviction requires proof beyond a reasonable doubt, a civil suit against the accused for the same acts only requires proof on a balance of probabilities.4 It either means that presumption of innocence outside of the criminal context is not applicable, or that presumption of innocence does not always require proof beyond a reasonable doubt, and as such simply becomes synonymous with due process: a symbolic phrasing, not a substantive requirement.
It is also worth noting that not all cases were a misconduct is alleged can or will give rise to criminal charges. One cannot be prosecuted simply for being an asshole, and yet, allegations that someone acted in a way that the persons making the allegations feel was assholish. Should these allegations be held to the same scrutiny as formal criminal charges, requiring that they be tested beyond a reasonable doubt before they can be acted upon? That seems unlikely. That would be a serious impediment to social change, which often relies on denouncing social conduct deemed unacceptable, even if not criminal or amounting to a civil tort, to foster alternative ways of being. “Due process” understood as only synonymous to the protection of proof beyond a reasonable doubt cannot stand.
The same can be said for civil procedure, actually. The evidentiary burden remains there on the person which instituted the action. This means that it is very possible that both a person being targeted by allegations which sues for defamation, and the person which sues based on the facts they alleged, could be refused the court action. Not ever single question needs to be assigned a conclusive evidentiary burden. Sometimes, even just the possibility that an allegation is “true”—using this term with all epistemological prudence—could potentially suffice.
This is for good reason. Indeed, due process is the requirement that decisions respect procedural safeguards proportionate to their importance. As a concept centered on proportionality, it has to be contextually applied. It is because “[t]he content of the principles of natural justice and fairness in application to the individual cases will vary according to the circumstances of each case”.5 Said differently, “[t]he content of the principles of natural justice is flexible and depends on the circumstances in which the question arises.”6 As such, due process entails different procedural requirements when taking different decisions, even regarding the same facts. But differing levels of seriousness with regards to the facts can also trigger different levels of procedural protections. The more serious the allegation, the higher the due process requirements.
Due process applies to the State and to the judiciary, of course, but also to non-State actors such as corporations and voluntary associations when their decisions affect sufficiently important rights.7 This means, however, that it only applies to institutional decisions. There can be no argument for requiring due process in taking a personal decision. It might be socially inconsiderate, but there is no procedural requirements applicable when deciding to break up with a partner, to end friendships, to stop corresponding with someone, to avoid being seen in company of someone, to only name these examples. That remains true even if they have dire consequences for the person it affects, notably social isolation and alienation, violation of personal dignity, reduced self-worth, feelings of inadequacies, loss of purpose, possible self-harm, etc. They are, in a way, a form of Ministerial discretion that cannot be reviewed. The same is true for arbitrary financial decisions. Due process cannot prevent anyone from boycotting a brand, from hiring a competitor, or from abstaining from using a service.
Due process, as such, cannot act as a gag order. It can only restrain the institutional reactions to an allegation of misconduct, not the allegation itself nor the private reactions. It has never prevented gossips, or latent warning systems, and it cannot prevent people forming opinions based on those. The only remedy for personal decisions arising from allegations of misconduct—which are not subject to due process, being entirely discretionary—is for the target person to sue the people making allegations against them to positively demonstrate their absence of wrongdoing. In addition to those personal decisions, other “at the pleasure” statuses cannot really be protected. They include board members positions, appointed political positions, honorific titles, etc. Due process cannot prevent those types of consequences: that simply is not its nature, nor should it be the way our society functions.
The remaining types of decisions are subject to due process. The “most basic [due process] requirements are that of notice, opportunity to make representations and an unbiased tribunal.”8 By and large, those are respected. Employment laws protect the targets of allegations before they are let go or otherwise sanctioned. Tenancy laws protect against arbitrary expulsion. Professional orders’ discipline processes have to respect relatively onerous procedures, being quasi-judicial in nature. Contractual law protects against truly arbitrary actions against a co-contractor. Education institutions, based both on their contractual obligations and the procedural fairness requirements they either adopted or have to follow based on natural justice, are quite limited in their possible responses to misconduct allegations. We can debate whether those protections are sufficient, but they do not lack due process.
Now, maybe people lamenting the lack of due process only lament the fact that allegations can be made widely available. In the information age, public opinion can be more quickly and more widely swayed when allegations of misconduct are made. This would be more in line with the presumption of innocence not as a procedural requirement, but as a mental predisposition. What they might want, rather than due process in its true sense, is simply that people be more sceptical and less prompt to react. The main way to achieve this, short of rewriting human nature—and good luck with that—, would be to provide for mechanisms to better protect the procedural requirement to be afforded the opportunity to make representations. Then, it would be up to the public to decide between the versions presented. One could for example imagine the ability for people targeted by published allegations to demand that they be allowed to publish a contestation. On online platforms, both social media and of traditional media, this could easily take the form of adding a nota bene under a publication with “These claims are contested. See the response here.” It could look like the notices that some social media are adding or a contemplating adding to satirical publications often mistaken as true, and to content that a consensus of fact checkers has deemed false. If that is really what the calls for “due process” entails, however, it seems misguided to use such a large term in the first place.
Fundamentally, it remains that due process is not an epistemological panacea in which the truth can be found and nowhere else. Both because truth is not a workable concept, and because it cannot change people’s perceptions. Rather, it is only a means to ensure that institutional decisions respect minimal safeguards. We should not pretend that the collateral damages of the current reckoning of larger social problems can be mitigated merely by adopting stricter procedures.
1. Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982, [annex B of the Canada Act 1982, 1982, c. 11 (U.-K.)], s. 11(d).
2. U.S. Const. amend. V and XIV.
3. R. v. Lifchus,  3 S.C.R. 320, par. 27.
4. H. v. McDougall, 2008 SCC 53, par. 42.
5. Martineau v. Matsqui Disciplinary Bd.,  1 S.C.R. 602, p. 630.
6. Lakeside Colony of Hutterian Brethren v. Hofer,  3 S.C.R. 165, p. 195
8. Ibid., p. 195