In a recent webinar offered at Rubin Thomlinson, titled “Primer on Consent,” we enjoyed a highly informative discussion on consent in the context of sexual assault. Part of that presentation included reference to a trilogy of cases from the Supreme Court of Canada (SCC) on the issue of sexual assault and s. 276 of the Criminal Code (“CC”). In this blog I will be taking a brief look at this trilogy in the context of workplace investigations.

You might ask, “why do we even look at sexual assault cases as workplace investigators?” and that would be a fair question. We don’t apply the criminal standard of proof in the workplace context (proof beyond a reasonable doubt), but the civil standard (a balance of probabilities, or what is more likely than not). However, as workplace investigators, we often do find ourselves applying the criminal law tests and principles relating to consent when allegations of sexual assault are made.¹

The cases in the trilogy are: R. v. Barton,² R. v. Goldfinch,³ and R. v. R.V.⁴ While these three cases have very different facts,⁵ the common denominator was the application (or lack thereof) of s. 276 of the CC. In the past, this section of the CC has colloquially (and inaccurately) been referred to as the “rape shield” laws. In essence, s. 276 of the CC institutes a ban on the admission of evidence regarding a complainant’s prior sexual activity, unless very stringent criteria can be met.

A deep dive into the details of these cases is beyond the scope of this blog.  Instead, I will briefly review the law of consent in Canada for context, discuss s. 276 of the CC and its implications for workplace investigators, and note an important clarification the SCC made about the defense of “honest but mistaken belief in consent” and why it is an important consideration for workplace investigators.

The Law of Consent in Canada

Briefly, the law of consent with respect to sexual assault is as follows:

• Consent requires voluntary agreement⁶

• Consent must be present at the time the sexual activity takes place⁷

• Consent cannot be given by someone other than the complainant⁸

• An unconscious person cannot consent⁹

• A person who for reasons other than being unconscious is incapable of giving consent, cannot consent¹⁰

• There is no consent where consent is obtained through abusing a position of trust, power, or authority¹¹

• Consent cannot be given in advance¹²

• Consent cannot be implied¹³

• A lack of a “no” is not a yes¹⁴

• Silence or passivity is not consent¹⁵

• Acquiescence is not consent¹⁶

As workplace investigators, we need to ensure we understand the law of consent when investigating allegations of sexual assault where consent is at issue.  Employers will similarly need to keep this in mind when assigning internal investigators to look into similar types of allegations.

1. 276 of the Criminal Code (CC)– The Twin Myths

In essence, s. 276 institutes a bar on introducing evidence of a complainant’s prior sexual activity to suggest that either the complainant:

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

The essential purpose of s. 276 is to avoid the application of myths and stereotypes. The specific myth at play is the misconception that someone who has consented to sexual activity before is more likely to consent in other circumstances. The stereotype is the idea that because someone has consented to sexual activity in other circumstances, they are of a lower moral character. By that reasoning, they are not as honest, or less worthy of being believed (in short, less credible) with respect to the event(s) in question.  These are outdated ideas that investigators should avoid applying in their reasoning and may require an investigator to become aware of their own conscious or unconscious biases.

The SCC also pointed out that “prior sexual activity” does not only refer to activity prior to an alleged assault, but to activity post-assault as well.¹⁷ This aligns with continuing learning about trauma and people’s responses to it. For example, we now know that it is extremely common for victims of rape to maintain relationships, even sexual ones, with people who have sexually assaulted them for a variety of reasons. It does not mean that a sexual assault did not take place. The s. 276 ban (with its limited exceptions) reflects the reality of trauma in this context.

In light of s. 276, as investigators, we need to recognize that what matters in determining whether sexual assault occurred is whether the complainant objectively consented to the behaviour in question, and be careful not to be swayed by myths and stereotypes relating to victims of sexual assault.

Honest but Mistaken Belief in Consent

In the criminal context, a common defence in sexual assault cases is an honest but mistaken belief in consent. The SCC made a very important clarification to this defence in this trilogy of cases — specifically, that a mistake about the law of consent is not a defence. As the SCC explained, judges need to inoculate juries from allowing mistakes of law to “masquerade” as mistakes of fact.¹⁸ The Court outlined a few examples of mistakes of law that might “masquerade” as mistakes of fact:

• A belief that a complainant gave broad advance consent to sexual activity of an undefined scope¹⁹

• Silence, passivity, or ambiguous conduct constitutes consent²⁰

• That unless and until a woman says “no,” she has implicitly given her consent to any and all sexual activity²¹

• That the complainant’s prior sexual activities with the accused made it more likely that they were consenting²²

For workplace investigators, this can mean that where credibility is at issue with respect to an alleged sexual assault, investigators must be very careful when assessing credibility and making findings. Even if a respondent appears credible with respect to the honestly held belief that consent was contemporaneously present, if that belief is based on an incorrect understanding of legal consent, it likely means consent was not present. The SCC has made it clear that: “Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required.”²³ That is the standard we should be applying as workplace investigators.

¹Sexual assault allegations in the context of the workplace arise in a number of ways: events that take place in the workplace, at workplace-related events, or with no other connection to the workplace other than the fact that the parties are co-workers. The fact that events take place between co-workers, with nothing more, can be enough to bring it within the purview of workplace policies, regardless of the specific language of the policy (i.e. that the events must take place on work property or at a work-related event, see Simpson v. Consumers’ Association of Canada, 2001 CanLII 23994 (ON CA)). If the behaviour brought to the employer’s attention has work-related consequences, the employer will have an obligation to investigate.

²R. v. Barton, 2019 SCC 33 (“Barton”).

³R. v. Goldfinch, 2019 SCC 38 (“Goldfinch”).

⁴R. v. R.V., 2019 SCC 41 (“R.V.”)

⁵Barton was a case that involved the alleged sexual assault and subsequent death of Cindy Gladue. The issue was whether evidence of sexual activity between Ms. Gladue and the accused was admissible evidence under s. 276. In Goldfinch the issue was whether a prior “friends with benefits” arrangement was permissible evidence under s. 276. Finally, R.V. involved the alleged sexual assault of a 15-year old girl by her 20-year old cousin. She became pregnant and the issue was whether evidence of her sexual history (or lack thereof) was permitted under s. 276.

⁶Section 273.1(1) of the CC.

⁷CC s. 273.1(1.1).

⁸CC s. 273.1(1)(2)(a).

⁹CC s. 273.1(1)(2) (a.1).

¹⁰CC s. 273.1(1)(2)(b).

¹¹CC s. 273.1(1)(2)(c).

¹²R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440.

¹³R. v. Ewanchuk, [1999] 1 S.C.R. 330; 1999 CanLII 711 (SCC)

¹⁴Ibid.

¹⁵Ibid.

¹⁶N.K. v. Botuik, 2020 HRTO 345.

¹⁷See FN 5 at para. 61 of Barton.

¹⁸Ibid. at para. 116.

¹⁹Ibid. at para. 99.

²⁰Ibid. at para. 98.

²¹Ibid. at para. 98.

²²Ibid. at para. 100.

²³Goldfinch at para. 44.

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