The Ontario Court of Appeal recently considered this question in a case involving an appeal from a conviction of sexual assault. The decision is an important one for any workplace investigator faced with assessing someone’s credibility.
Alcohol and work events often don’t mix well. Some know this from personal experience. Others, like us, are called upon to investigate allegations arising from work events at which alcohol and “good times” were flowing freely. It will come as no surprise that, as workplace investigators, the issue of alcohol consumption and intoxication pops up with some frequency in our work.
Witnesses to whom I have extended an invitation to meet with me often have questions about the process. They want to know whether they are obligated to participate, what the investigation is about, and what will be done with the information they provide.
Recently the Ontario Court of Appeal released its decision in R. v. Sullivan, a case involving the automatism defence. For those who don’t know, this defence can potentially be raised when an individual enters a state of impaired consciousness in which they are capable of acting but have no voluntary control over those actions¹. Through amendments to the Criminal Code of Canada in the mid-90s, the defence of automatism cannot be used for violent offences when the automatism is brought on by self-induced intoxication.
We have all heard of the myth of Pandora’s Box – a box containing many evils that once released into the world could not be put back. As a third-party workplace investigator, I often think of clients having a Pandora’s Box full of information that, if released, could be prejudicial and could lead to an eventual claim of bias.
Fairness is something that we talk about a lot as investigators, although we appreciate that the term can sometimes feel a bit nebulous. Here we have rounded up a couple of recent cases that put the concept into effect, and highlight the importance of ensuring a fair and unbiased investigation…
I was actually going to write this blog last fall but it seems even more timely now. I have done a number of investigations in the past year where some of the allegations and evidence concerned conversations on various instant messaging platforms: Slack, Microsoft Teams and WhatsApp. While I seem to have developed a sub-specialty with investigations in the Tech sector, I confess that the first time a party spoke to me of Slack, I was somewhat clueless.
In the recent past there have been several class actions involving individuals who have experienced sex-based discrimination, sexual harassment, and sexual abuse in workplaces and institutions. But what about the type of harassment that we most often see as workplace investigators – bullying, intimidation and abuse of one’s authority that does not target someone based on a protected ground of discrimination? Can there be a class action united for those who experience of this type of behaviour? Possibly.