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Serious insight for serious situations.

Serious insight for serious situations.

Back to College and University – Have You Talked About Consent and Sexual Violence on Campus?

It is September and back to school time, including back to the physical campus after more than one year of virtual learning. I imagine that most students are looking forward to being back on campus, or attending campus for the first time. It is an exciting time, yet…

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Investigations: Our Top 10 of 2020

It has become somewhat of a Rubin Thomlinson tradition to host a webinar at the beginning of each year outlining our top 10 workplace investigation cases from the previous year. On January 14, 2021, we hosted our most well-attended webinar yet: The top 10 cases of 2020. Here are the discussed themes and a very brief summary of the presentation.

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“Friends with benefits” is NOT “relatively benign” evidence

In a recent blog, my colleague Sharon Naipaul reviewed the trilogy of 2019 Supreme Court of Canada sexual assault cases and considered how they inform our work as workplace investigators. Although it was in the early 1990s that new procedure under the Criminal Code limited the admissibility of past sexual history evidence at trial, these cases demonstrate that there is still tension with how to use less overt evidence of prior sexual history. This area is problematic as it continues to be plagued by what have been dubbed as the “twin myths.”

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The Supreme Court of Canada’s recent trilogy of cases on s. 276 of the Criminal Code – How we can apply it to our investigation practices

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”).

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The booze blog

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.

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Acquiescence, not consent: Lessons from N.K. v. Botuik

There are many potentially thorny issues that await an investigator who is asked to make findings about a complainant’s consent to an intimate relationship or to a sexual encounter with a respondent, including the effects of trauma on memory, the potential involvement of intoxication and, of course, grappling with the complicated and nuanced definition of consent itself. The recent Human Rights Tribunal of Ontario decision in N.K. v. Botuik, 2020 HRTO 345, provides a useful illustration of another issue that we might encounter in an investigation that involves a sexual relationship between two employees: distinguishing coerced acquiescence from true consent.

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What the media got wrong about the Sullivan decision & what workplace investigators need to know

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.

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