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With Bill 132 set to come into effect on September 8, 2016, and January 2017 for universities and colleges, there is a great deal of work that organizations are required to do, including drafting policies, establishing investigation procedures, and training staff. Given the usual complexities of investigating sexual violence, one of the central areas of training that must be considered is the law surrounding consent.
It is correct to say that Bill 132 does not alter the definition of consent or the expectations of what is required to obtain consent to sexual activity. However, the question becomes whether those who are responsible for investigating sexual violence understand consent.
We receive our guidance on the issue of consent from the criminal law. Significantly, there is no difference in the definition of consent in criminal cases and that which is used in civil matters. Put simply, consent means the voluntary agreement to participate in the sexual activity in question.
In R. v. Ewanchuk (1999) 131 C.C.C. (3d) 481 (S.C.C.), the Supreme Court of Canada reaffirmed that sexual assault had two elements: 1) unwanted sexual touching and 2) intention to touch, when knowing, being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. The Court stated that it was the state of mind of the complainant at the time of the sexual activity that was the determining factor in whether consent was given and “implied consent” did not exist in matters of sexual assault. The clear guidance that arose from this case was that consent is not about “no”, it is about “yes” and it (that is consent) must be voluntarily given by the person being touched.
The voluntary aspect of consent was addressed in R. v. J.A. (2011) 2 S.C.R. 440 (S.C.C.) which was a case where the complainant was unconscious at the time of sexual activity. The accused said that the complainant consented to the choking that led to the unconsciousness and therefore gave consent to the sexual activity that followed. The majority decision found that a person could not consent in advance to sexual activity and a person had to be conscious throughout sexual activity in order to consent to that activity.
In the employment context, the decisions in Sather v. Deputy Head, 2015 PSLREB 45 and Kingston General Hospital v. OPSEU, Local 444 (Re Oliveria) 2012 CarswellOnt 10808 explore the issue of consent. Both quote extensively, with approval, from Ewanchuk and JA with respect to the definition of consent and address the actions of the complainants that clearly and unequivocally demonstrated a lack of consent to the sexual activities in question.
Bill 132 has done nothing to alter or amend what consent means as it relates to sexual violence or sexual assault. The positive obligations placed upon organizations, like universities and colleges, to have an investigation process in place to investigate sexual violence allegations does mean that investigators must understand what consent is and what it isn’t in relation to the facts of the matter they are investigating. They may be called upon to engage in analysis, as to why consent was or was not present in any given situation, and to provide such analysis, investigators must understand the direction given by the case law and legal decision-makers.
What should be emphasized is that with the implementation of the changes as a result of Bill 132, it is not time to try one’s hand at investigating allegations of sexual violence. Consider these issues that investigators will need to deal with:
- Credibility decisions regarding consent;
- Decision-making when there is no corroborative evidence;
- Intoxication – what level extinguishes consent;
- Potential overlap between the employer’s (or institution’s) investigation and findings and potential criminal charges;
- What the fairness requirements are to a person accused of engaging in sexual violence.
Now is the time to ensure that you have the internal workplace investigation competencies to deal with these issues, or the ability to access them externally if you don’t.
About the Author: Toronto Employment Lawyer Kenda Murphy is a lawyer with over 20 years of experience in civil and criminal litigation. Over the course of her career, she has been in private practice and worked in the public sector with the Public Prosecution Service, Department of Justice and Health Association Nova Scotia. Most recently Kenda was the Associate Director & Counsel of the Employee/ Labour Relations Unit at Queen’s University.