Canadian Lawyer by Karen Busby 23 July 2018
Many university policies for handling sexual violence complaint investigations throw a cone of silence over complainants, leaving some confused and others angry about what they can say about the events giving rise to the complaint or the complaint process. Adding insult to injury, many policies also vaguely threaten to sanction anyone who speaks in a public forum about a complaint, even after all formal proceedings have ended. No wonder some choose a #MeToo moment rather than making a formal complaint.
McMaster University’s policy, for example, states that “all those who meet with an Investigator are required to keep confidential the meeting and any information shared to ensure the integrity of the proceedings. Failure to do so could be considered a breach of privacy.”
It is unclear whether this rule applies only while an investigation is ongoing or if it is enduring. The rule is broad: No one can repeat what they told an investigator nor even disclose that they gave an interview. It also hints at sanctions for disclosures.
This policy restricts complainants’ expressive rights far more than is required for protection of procedural integrity.
How can universities work within the boundaries of current laws to address at least some of the confusion and anger complainants experience?
For starters, rather than vaguely threatening sanctions for improper disclosure, the policies could follow the University of Victoria’s example and affirm that complainants are free to tell the story of their own experiences. Administrators could also help complainants get impartial advice about any potential downsides to making public disclosures, such as civil lawsuits over defamation or breach of privacy. The policies should plainly say whether and why broad or enduring non-disclosure orders are imposed on complainants regardless of the outcome. Then we could assess whether these rationales stand up to scrutiny.
University administrators are also under a cone of silence. They are prohibited by provincial and territorial privacy laws from ever sharing with third parties (such as complainants, the media or prospective employers) any information about an investigation involving employees or students without that person’s consent. Under privacy law, complainants do not have the right to know whether there was a finding of wrongdoing or what remedies or sanctions were imposed unless, for example, there are “compelling” or “emergency” circumstances that affect their mental or physical health or safety.
Some policies leave the impression that complainants will be provided with information such as investigators’ reports even if, in practice, this is not going to happen. The University of British Columbia’s policy provides that “to maintain the integrity of the investigation process, UBC must ensure that both complainants and respondents know the investigation findings and the evidence upon which these findings are based. For this reason, complainants and respondents will be provided with a copy of the Investigation Report. [Privacy legislation] may require UBC to remove Personal Information that is irrelevant to the Investigation findings, or that identifies third parties.”
This policy is misleading as, following arbitrators’ rulings, complainants have received heavily redacted investigation reports from UBC administrators.
While some might say that universities are happy to hide behind these policies, the consequences of breaching privacy rights can be significant. A labour arbitrator recently ordered UBC to pay damages of $176,000 to a professor for violating his privacy rights when it publicly commented on allegations of sexual violence against that professor.
The relationship between statutory privacy law and other laws is complicated in some parts of the country. Saskatchewan, Manitoba, Ontario, NWT, Nunavut and Prince Edward Island have passed almost identical occupational health and safety laws that prohibit employers from disclosing complainants’ and respondents’ names and “the circumstances related to the complaint” in sexual harassment cases, with some narrow exceptions. However, these laws (except in P.E.I.) also provide that an employer must have a policy that sets out “how the complainant and alleged harasser will be informed of the results of the investigation.”
A comparison of the provisions in university policies — which operationalize both the privacy rule and the “informed-of-the-results-of-the-investigation” exception — reveal wildly divergent interpretations of the relationship between these laws. Some promise release of the full investigator’s report (Carleton, York, Ottawa), some provide for release of a summary (McMaster, Ryerson, Toronto), others say complainants will only receive excerpts that touch on their own evidence (Queen’s) and some are silent (Saskatchewan, Manitoba, Waterloo, Western). Some policies promise disclosure of information to complainants on sanctions (Queen’s, Ottawa, Ryerson), others will only disclose outcomes if there are health or safety concerns (Carleton, York), many are silent or non-committal (Manitoba, Saskatchewan, Western, Waterloo, McMaster) and only one says no information on sanctions will be released (Toronto).
Complainants should be able to tell their stories, especially once proceedings are over. They should also know the outcomes of investigations, including the sanctions or remedies, if any, that were imposed. We need to revisit laws and policies that silence complainants and deny them the right to see how justice was done.
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.