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.
Despite this opening sentence in her decision, Tribunal Chair Juricevic found that the complainant’s allegations of sexual harassment and discrimination were not substantiated.
As a workplace investigator, I am sensitive to the fact that conversations around #MeToo in the workplace have been an evolution; people are not always sure about “where the line is” when assessing whether conduct in the workplace amounts to sexual harassment. The British Columbia Human Rights Tribunal recently chimed into this discussion. The decision¹ provides a detailed refresher on the legal test for claims of sexual harassment and draws a line in the sand regarding what is (or is not) considered sexual harassment.
2020 will see important shifts in how employers in federally-regulated industries prevent and address workplace harassment and violence. New rules will soon come into effect that will increase employers’ responsibilities to respond to incidents of harassment and violence, and also prevent any such incidents from occurring. I will be writing a series of blogs about these requirements so that employers and investigators can better prepare for what’s coming.
Time and again we see a familiar story play out in the media and in our work as workplace investigators: troubling behaviour on the part of one or more employees that many other employees witnessed, but never reported to anyone. This is one of the most vexing problems those of us who care about addressing and preventing workplace harassment and discrimination face: why do so many people see or hear about inappropriate behaviour in the workplace and remain silent? And how can we motivate these witnesses – who we refer to as bystanders – to speak up?