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Some of the most serious forms of workplace or institutional investigations will involve the investigation of allegations of sexual assault. For post-secondary institutions (“PSIs”), incidents of sexual assault are, unfortunately, not uncommon. As evidenced by recent stories in the media, incidents of sexual assault can also arise in a variety of other workplaces and organizations. In 2020, Statistics Canada conducted the “Survey on Sexual Misconduct at Work,” which found that one in eight (13%) women had been sexually assaulted in a work-related context at one point during their working lives.1 It is critical that organizations take allegations of sexual assault seriously, recognize what to do when they obtain information regarding a sexual assault in the workplace, and take the appropriate steps to respond. Below is some basic information for employers and organizations on sexual assault investigations to better inform your decision-making process and maintain a safe work environment for all.
First and foremost, what is sexual assault? While the exact definition can vary across organizations, it generally captures unwanted touching for a sexual purpose,2 from sexual grabbing and kissing to penetration. For context, the Survey on Sexual Misconduct at Work defined sexual assault as including “sexual attacks, sexual touching and sexual activity to which a person could not consent because they were intoxicated, coerced or forced in another non-physical way.”
How does a workplace investigation differ from a criminal investigation? While incidents of sexual assault in the workplace can be investigated criminally, they can also trigger obligations on the part of the workplace or organization to conduct their own investigations into the conduct. These two types of investigations (the criminal one and the workplace/organizational investigation) can run parallel to one another. The two processes differ in a fundamental way: the standard of proof that is applied to the evidence. The criminal process applies the standard of proof of “beyond a reasonable doubt” – this is a higher threshold than that applied in workplace investigations. Workplace investigations use the standard of proof of “balance of probabilities” (what is more likely than not to have occurred, also known as 50% plus 1).
What are the basic steps of a workplace investigation into sexual assault? The investigation typically starts with the investigator meeting with the complainant (the person who has made the allegations) to obtain their version of events. While this may appear like a straightforward step, the complainant may not want to participate in the workplace investigation, especially if they have already told their story to the police.3 Telling their story again may be retraumatizing for them. The investigator should take the time to carefully explain the process to them, and the consequences that may flow from participation if there is a parallel criminal proceeding. If the complainant is willing to be interviewed by the investigator, the investigator needs to ensure they approach this interview with a trauma-informed lens.
If the investigator is able to obtain the particulars of the sexual assault (either from the complainant themselves or other sources), then these particulars should be presented to the respondent for their response. As with a complainant, the respondent should understand the workplace investigation process and the implications that may flow from their participation in it; respondents often retain legal representation for this reason. The respondent may decline to participate in the workplace investigation if there is an ongoing criminal proceeding. Should the respondent choose to participate, the respondent can either deny the sexual conduct occurred, or admit that it occurred, but state that it was consensual. In the latter case, the issue of consent becomes determinative.
While most incidents of sexual assault are “they-said, they-said” situations, an investigator can (and should) look to other circumstantial evidence to help determine what occurred. This can include evidence from witnesses in whom the complainant confided after the sexual assault, and evidence as to the level of intoxication of the parties in the event alcohol was involved. Investigators must ensure that their analysis of such evidence, and the evidence of the parties, does not rely on myths and stereotypes about how a “real” victim of sexual assault would behave.
Even if there is no circumstantial evidence, investigators can make findings in “they-said, they-said” situations based on a credibility assessment of the parties.
If the parties are participating in the investigation process, the investigator may need to have follow-up interviews with each of them to present them with contradictory evidence obtained during the course of the investigation. Regardless of the outcome of the investigation, the parties should be informed of the outcome in writing.
What legal principles are applied in workplace investigations into sexual assault? Most workplaces or PSIs will adopt a definition of sexual assault that is consistent with the definition set out under the Criminal Code, and as such, and unless the internal policy says otherwise, investigators can draw on the principles established by the criminal courts when conducting these investigations. This includes those applicable to assessing the credibility of the parties, consent to the sexual activity, and whether the complainant’s capacity to consent was impacted by alcohol or other substances.
Given the complexity of this area of the law and the need for these investigations to be conducted in a trauma-informed way, we recommend that these investigations be conducted by someone with the expertise, experience, and legal knowledge in this area. An inadequate workplace investigation into sexual assault can create further potential liability for an organization.
1 Marta Burczycka, Workers’ experiences of inappropriate sexualized behaviours, sexual assault and gender‑based discrimination in the Canadian provinces, 2020 (August 12, 2021), online: Statistics Canada https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2021001/article/00015-eng.pdf?st=iInuhfTm
2 AG Growth International Inc. v. Dupont, 2021 ABQB 663 (CanLII), at para. 31.
3 Depending on the stage of the criminal investigation, you may wish to consider communicating with the police to ensure there is no objection to interviewing the parties or witnesses in light of an ongoing criminal investigation.
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