Redress for victims of sexual assault is increasingly being sought outside the legal system, which raises challenges for lawyers representing the accused and ethical questions for journalists covering accusations that haven’t been proven in court, says litigator Jonathan Lisus.
Lisus, who briefly represented former Ontario Progressive Conservative leader Patrick Brown in his lawsuit against CTV, was speaking March 8 on International Women’s Day at a University of Toronto Law School panel about the #MeToo movement.
The panel explored the idea that the emotional weight of what can be an adversarial system of justice makes victims look for other avenues to tell their story.
Lisus briefly represented former Progressive Conservative leader Patrick Brown in his libel suit against CTV after investigative reporter Glen McGregor broke the story that two women, one a former staffer, were accusing Brown of sexual misconduct.
Brown quickly resigned after an impromptu press conference in January where he denied the allegations against him. McGregor was investigating the allegations against Brown and contacted his staff for comment, saying they were airing the claims that evening.
“I don’t want to talk about any particular case and I am not representing Mr. Brown anymore on the CTV issue,” says Lisus, a partner at Lax O’Sullivan Lisus Gottlieb LLP in Toronto, who spoke to Legal Feeds after the event. “However, I think that where the media has been working on a story that they know will be explosive and have very significant consequences, the obligations of responsible journalism compel them to give people the opportunity to comment fairly and I think there are cases where that hasn’t happened.”
Critics of the #MeToo movement have complained that the way social media spreads word of accusations causes irreparable harm to the lives and careers of the accused before they have a chance to defend themselves or argue their case in court.
“There is no question that the #MeToo movement is a great leveller; it’s also very, very powerful. I think we all have to, at the same time, remind ourselves that there are standards for responsible journalism,” said Lisus.
Deepa Mattoo, legal director at the Barbra Schlifer Clinic, also speaking on the panel, said that societies have different mechanisms of accountability outside of the justice system and that the #MeToo movement is simply a technologically advanced version of what women have been doing for centuries — warning one another about predators in order to stay safe.
“From the legal perspective, I can tell you from the clinic’s work, there are many women who come to us who do not want to engage with the adversarial system and want to engage with something else,” she said.
“This cry for presumption of innocence and cry for due process also needs to be weighed into the fact that due process and presumption of innocence, all of those things are the terminologies to be used in the court processes and legal processes,” Mattoo said. “When it comes to societal accountability, we are not necessarily bound by that in our societal communication.”
The social-media-driven testimonials brought together with the #MeToo campaign came in the wake of the exposure of Hollywood producer Harvey Weinstein. In an op-ed for the New York Times, Canadian filmmaker Sarah Polley said that as a young actress working on a Weinstein production she was summoned to Weinstein’s office and offered a ticket to Hollywood stardom in exchange for sex.
Polley, who also spoke on the panel, is an activist for victims of sexual crimes.
“Nobody was going to take Harvey Weinstein to court; you would’ve been crazy,” Polley said. “I think, from my perspective as someone from outside the legal profession, the spectre of being on a stand in a criminal trial accusing someone of sexual assault is not a pretty one and it’s not one that most people would choose to go into if they have all the information.”
Polley said “almost 100 per cent” of defence lawyers she asked whether they would advise a loved one to come forward with a sexual assault case said they would not.
A characteristic of the #MeToo movement is that it is the court of public opinion, not the court of law. This raises the issue of due process and the rights of the accused.
“To pick up on a comment Sarah made about ‘think about your loved ones,’ think about one of your loved ones facing a serious criminal charge,” Lisus said. “How much due process do you want them to have? A lot, I bet.”
The difficulties faced by accusers in sexual assault cases can stem from the fact that the system is not designed with a focus on the interests of victims but in protecting the rights of those facing criminal prosecution, said Alexi Wood, the lawyer representing four women bringing civil suits against the former artistic director of Soulpepper Theatre Company, Albert Schultz.
“The centre focus is not the complainant in that situation. Nor should it be,” said Wood, founding partner at St. Lawrence Barristers LLP. “In a criminal system, we are talking about taking away somebody’s liberty and the state absolutely has to be held to a very high standard that is part of our criminal justice system and that is a fundamental part of it. It should be really hard to lock somebody up.”
Lisus said that the #MeToo movement, where the behaviour of powerful men is producing consequences to which they were once immune, is part of an era that began with the Arab Spring and includes Black Lives Matter, where abuse of power is being countered more effectively than was possible before.
Now tools available to almost everyone — the internet, smartphones with cameras and social media — are being used more widely and can attack traditional power.
“Just think about how the ubiquitous device you have in your hand has changed policing and has changed the criminal justice system,” said Lisus. “An adversarial system of justice often failed people who were abused. What I think we have to grapple with as we move through this is trying to maintain a balance.”
