About one in four female students will be sexually assaulted while studying at a Canadian post-secondary institution. Many complainants experience a drop in their grades, have difficulty concentrating and curtail their social lives. Some drop out of school altogether. In response to calls from student and anti-violence organizations, most provinces and one territory have, since 2016, passed legislation or issued ministerial directives requiring post-secondary institutions to adopt policies to create awareness about the problem, provide support to complainants and create formal complaint processes.

While ministers in some jurisdictions have the power to table regulations or issue directives, none of them has exercised this power in relation to formal complaints. So the details of complaint policy in all jurisdictions are left up to individual institutions. They take widely divergent approaches on key provisions related to the scope of the policy, the model for determining the complaint (oral hearing or investigation), the participation of the student respondent (the person about whom the complaint has been made), privacy and public accountability.

Under some policies, complaints related to events off campus can be made only if the conduct has an identifiable and substantial link to the institution. Other policies expressly apply to off-campus conduct or capture any conduct that could materially affect the working, learning or living environment.¬†Allegations about events occurring in a private home ‚ÄĒ which are the most common scenarios ‚ÄĒ are not captured by an ‚Äúidentifiable and substantial link‚ÄĚ requirement but are covered by a ‚Äúmaterial effect‚ÄĚ provision.

Some institutions employ an ‚Äúinvestigative‚ÄĚ model, in which a single trained investigator interviews witnesses and makes findings of fact, rather than an ‚Äúadjudicative‚ÄĚ model, where a student discipline panel (made up of faculty and students) presides over an oral hearing where witnesses give evidence. An investigative model addresses the mistreatment of complainants and the barriers to reporting in a number of ways. Trauma-informed practices may be incorporated into witness interviews; there is no retraumatizing cross-examination or direct confrontation of the complainant by the student respondent; the complainant has full participatory rights; and the fact-finding is undertaken by a trained professional who should be expert in avoiding discriminatory assumptions and irrelevant questions around sexual history, thus producing better decisions. The investigative model achieves fairness by respecting the human rights of complainants as well as the rights of both complainants and respondents to procedural fairness.

Another feature of an investigative model is that, practically speaking, student respondents cannot refuse to participate. An adverse inference can be drawn from their silence: if they had something to say in their defence, they would speak up.

Any benefits of an investigative model, however, can be frustrated at institutions where, following an investigation, respondents have the right to a full new hearing before a student discipline panel under a discipline by-law. When such hearings are available, respondents may make a strategic decision not to participate in the investigation and tell their story only at the later hearing. Moreover, these hearings are not governed by a sexual violence policy, so decision-makers usually have no training on sexual violence, and stereotypes about complainants easily creep in. Complainants lack participatory rights, and the length of time to completion can be increased by months, even years.

In addition to proceedings on campus, respondents may face criminal charges. Some observers assert that it is wrong to require respondents to go through both proceedings concurrently, especially when any statements they make during the campus proceedings can probably be obtained by the Crown and used in the criminal proceedings, too. This outcome seems like an unfair compromise to a person’s right to be silent in criminal proceedings. Others fear that suspending the university proceedings until the criminal proceedings are resolved may render the university proceedings meaningless. Because some criminal proceedings drag on for more than two years, suspension of the campus process can make it possible for the defendants to complete their studies and get their degree before the discipline hearing is held. Under some policies, campus proceedings are suspended pending criminal proceedings; under others, they are not.

While freedom of information and protection of privacy acts (FOI/FIPPA) are more or less the same across the country, there are significant differences among sexual violence policies on what information about findings and disciplinary or remedial measures can be released to complainants and others. Complainants will generally learn about the findings, but they may not be provided with a copy of the investigation report or decision in which the finding was made, and may not learn much about the discipline or remedial consequences. This is because some institutions conservatively interpret FOI/FIPPA as limiting their ability to release this information to complainants. Non-disclosure to complainants, however, disregards well-established principles under human rights legislation that complainants should be advised about outcomes. The confidential nature of information on findings and discipline deprive complainants of validation as well as of a sense of safety.

Privacy laws clearly prohibit sharing any case-specific information about ongoing processes, findings and outcomes beyond complainants ‚ÄĒ with others in the campus community, media and potential employers. In one case, a university was ordered to pay more than $240,000 to a former professor after the institution confirmed in the media that a professor had been suspended because of ‚Äúserious allegations‚ÄĚ and later confirmed that it had valid reasons to let the professor go because of an ‚Äúirreparable breach of trust.‚ÄĚ

The broader question of institutions’ accountability for how they address sexual violence turns on what the public can find out about their handling of complaints. The effectiveness of campus policies cannot be measured if data are not collected and made publicly available. Provincial acts mandating sexual violence policies have two weaknesses that compromise or undermine transparency and public accountability.

First, the statutory provisions can be thinly interpreted to require the reporting only of information on the number of informal disclosures and formal complaints. Most legislation does not require the reporting of data on, for example, demographics, withdrawn complaints, process and fairness factors or outcomes; an exception is the Quebec act, which requires that information on timeliness and sanctions be made available.

Second, only the Manitoba legislation requires a public report; the Quebec law requires that the information be included in the institution’s annual report. British Columbia, Prince Edward Island and Ontario laws, by contrast, require only a report to the minister or the institution’s governing board. The Yukon act is silent on public reporting. Similarly, other legislative data collection provisions, such as the requirement in some legislation for a student survey to be conducted on the minister’s request, do not require that the survey results be made public.

Many of the key demands made by anti-violence activists and student groups are difficult to accommodate. It’s hard to ensure that complaint-based processes are swift and that they avoid any retraumatizing of the complainant. Restrictions on the release of information to complainants about findings and outcomes may leave them in the dark. Constant vigilance is required to ensure that complainants are not treated with blame and hostility. The potential for public accountability of post-secondary institutions is very limited unless meaningful data about their handling of sexual violence complaints are collected and published.

Karen Busby and Joanna Birenbaum are the authors of Achieving Fairness: A Guide to Campus Sexual Violence Complaints, which will be published by Thomson Reuters in March.

This article is part of the Improving Canada’s response to sexualized violence special feature.

Photo: Shutterstock by Nutlegal Photographer

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Karen Busby
Karen Busby is a law professor and the director of the Centre for Human Rights Research at the University of Manitoba. Her work focuses on gender-based violence and constitutional and administrative law.
Joanna Birenbaum
Joanna Birenbaum is a litigator in Toronto with expertise in gender equality and sexual violence. Her extensive experience in this area includes constitutional litigation, professional discipline, civil sexual assault claims, employment law, workplace investigations, human rights and criminal law.

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