Canadian Lawyer by Karen Busby 30 January 2017
Laws and policies governing inter-personal and group-based sexual violence, misconduct and harassment at many universities and colleges across Canada not only prevent participants from seeing whether justice is done, they also prohibit open inquiry and impede learning. Disturbingly, the trend is toward even less disclosure about findings and outcomes.
For example, the University of British Columbia has been under fire recently for maintaining silence over sexual harassment allegations by students against a professor. Despite this criticism, the university has proposed revisions that would make its policy even more expressly restrictive on confidentiality. Meanwhile, many Ontario post-secondary institutions, which were required to adopt new sexual violence policies by Jan. 1, have also crafted policies with restrictive disclosure provisions.
Harassment policies and practices at universities across Canada variously prohibit sharing any information about a complaint both during and after an investigation, including not only the parties’ names but also the existence of a complaint, details of investigations, summaries of conclusions and outcomes. Many policies don’t allow complainants to see investigation reports or be advised of sanctions imposed, although some institutions allow complainants to get a summary of findings that they cannot disclose to others. Witnesses and victims who are not formal complainants are not entitled even to a summary. These policies also impose sanctions on anyone who breaches confidentiality provisions.
Most universities claim that these provisions flow from the rules of procedural fairness or from provincial legislation designed to protect privacy. Complainants are cautioned at some schools not to speak with anyone other than professional counsellors or advocates “in order to maintain the integrity of the process.” Regulations made under workplace safety and health legislation in Manitoba prohibit disclosure of “the name of the complainant or an alleged harasser or the circumstances related to the complaint,” except in very limited circumstances. This provision is interpreted to mean that no disclosures can be made even after the investigation and any review processes are finished.
Confidentiality issues become more complicated when students make allegedly harassing comments about others in the university community through traditional or social media. Sometimes, it is obvious that a line has been crossed, such as Dalhousie dentistry students polling classmates on “which classmate would you most like to hate fuck?” But some cases are less obvious. For example, when do sexist criticisms of a teacher’s competence published anonymously in a newsletter become actionable harassment? As most harassment policies do not differentiate between one-on-one harassment and group-based harassment, the confidentiality provisions apply in these circumstances, too.
Those experiencing group-based harassment are often unwilling to raise their concerns because they fear reprisal. Conversations about offensive social or traditional media quickly become mired in free expression claims, assertions that “feminism is being shoved down our throats” or justification that “boys are just being boys.” Because complaints pit groups of students against each other, they can exacerbate the social conditions that fostered the demeaning expression in the first place. The risks are too high for most students to complain.
When a complaint is made, often by an administrator, it may take months to investigate. In the meantime, an information blackout is imposed on everyone touched by the posts or the process. For example, the current University of Manitoba policy (to which I refer only because it is the policy with which I am most familiar) provides that anyone “involved in the complaint process . . . should not discuss the details of the complaint or the response to the complaint with others.” Such rules might make sense during the investigation stage of one-on-one harassment or assault complaints, but the blanket restrictions are questionable when many students and faculty have already seen the social media postings or hardcopy newsletters. This policy also provides that anyone who breaches the non-disclosure requirement may be subject to disciplinary action. Cautious people would never share copies of the allegedly offensive material with anyone, opine on the identity of anonymous writers or even discuss its possible effects on the learning environment, lest they be subject to discipline.
Those interviewed by the investigator will eventually get a letter from a university official advising them that the investigation is complete and referring them again to the enduring confidentiality provisions in the university policy. The people alluded to in the offensive posts would not have the right to know, even in summary form, whether the investigator found that the posts constituted harassment. The names of those implicated in creating the posts and the remedial or disciplinary measures recommended or taken will be forever secret. Insights that could have been gained from sharing the investigator’s close examination of real-life examples would be lost. Other than a few administrators, no one could assess whether justice had prevailed.
A scan of the policies in place at universities and colleges across the country shows that the University of Manitoba process is not unique. Other universities have interpreted legislative provisions, especially when they are grounded in privacy law, as prohibiting disclosure of any information even after the investigation and any related proceedings are over. I could find only one policy that expressly provided that a university administrator could “for educational purposes . . . discuss specific cases and their resolutions without identifying information.”
Until more universities find more nuanced ways to protect privacy and procedural fairness while also ensuring mechanisms for accountability and sharing lessons learned, stay tuned for the next scandal involving a university taking cover in the privacy foxhole.
Karen Busby likes to write about sex, politics and religion. She is a law professor and director of the Centre for Human Rights Research at the University of Manitoba as well as author of Manitoba Queen’s Bench Rules. She can be reached at Karen_Busby@umanitoba.ca.