Workplace Sexual Harassment

Unique Issues in Evidence to Prove the Case

Many criminal and administrative cases have cautioned against the use of “stereotypical assumptions” of the expected behaviour of a person who has been the victim of a sexual assault or harassment.

Criminal Cases

In the criminal context, the fact pattern is often one in which the victim is the critical witness on whose credibility the case may rest. In addition, frequently the victim has been a minor when the alleged wrongdoing took place.

Issues which arise may include a reference to the conduct of the victim in, not only, failing to report the issue in a timely manner, but also even continuing a relationship with the offender.

One recent case 1 considered the impact of the apparent absence of evidence of such avoidant behaviour, “either conscious or unconscious” in the conduct of the child victim. The trial judge, in acquitting the accused, had noted that there was a lack of such evidence such as a pattern of conduct to avoid the alleged wrongdoer.

As was noted by the majority judgment on appeal, the significant question to be answered is “what, if anything, can evidence of avoidant behaviour by a complainant tell a trier of fact about a sexual assault allegation?”. The answer offered to this question was quite simple – “nothing”.

It was also observed in the same decision that there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”. 2

The full passage of the precedent referenced in the above case is more instructive:

65                           A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave.  Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse.  Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.  In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.  A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

In the immediate case in the Alberta Court of Appeal, the trial acquittal was set aside and a new trial ordered as the trial judge relied upon a “myth or stereotype (masquerading as logic and common sense)” as to how a victim of sexual assault should react.

It is true that this case involved a child complainant but nonetheless the principles apply to all comparable victim complainants, yet more so to child victims. This has now become a recurrent theme in such criminal cases involving allegations of sexual assault.

The Victim as the Accused

The British Columbia Court of Appeal considered similar issues in setting aside a trial decision in which the victim of a domestic assault had been convicted at trial of breaking and entering and theft. 3

The accused had been physically assaulted by her boyfriend and left at the side of a road. She had then walked for several hours, eventually meeting a man who claimed to need assistance in entering what was alleged to be his house by means of a ladder. The accused climbed the ladder and allowed her new male acquaintance access to the home. He then stole certain property and the car in the driveway, and then proceeded to drive the accused to her destination.

Much of the convincing evidence at trial focused on why the accused had not called the police when she had gained access to the home in question. 4

The Court of Appeal similarly noted that just as it may be an error of law for a trial judge to assess the credibility of a victim of sexual assault based on stereotypical expectations as to how such a person would react, so in this instance, it would an error to apply the same presumptions to a victim of domestic assault.

The court saw no need to deny the application of this concept to a person accused of a crime.

Hence the reliance by the trial judge upon the accused’s apparent failure to call the police to determine that her evidence was unreliable was seen as an error of law.

Civil Cases

There have been no direct applications of these criminal authorities in civil cases for assault or similar tort remedies. 5 This being said, in one case upheld by the Ontario Court of Appeal, the evidence at trial related to a proven allegation of forced sexual intercourse. After the event, the defendant requested a drive from his home to the hospital, to which the plaintiff agreed. The precise summary offered by the Court of Appeal was as follows:

Dr. Zando and Dr. Ali were co-workers at the Hospital, and friends. They were both married, and had immigrated to Canada from Pakistan. The sexual assault consisted of one incident. Dr. Ali went to Dr. Zando’s home, on the pretext of an urgent matter, the completion of a medical form. While he was there he removed his shirt and then, in the bathroom, the rest of his clothes. Returning to the room, he tripped Dr. Zando, thrust his erect penis into her face, pulled down her pants and penetrated her vagina. He rolled off after Dr. Zando screamed. As she was leaving the room she saw Dr. Ali masturbate and ejaculate onto the rug. On the pretext that a patient was waiting for her, Dr. Ali had Dr. Zando drive him back to the Hospital.

The trial decision 6 made no reference to what would perhaps have been expected as the “stereotypical assumption” that a woman who had been raped would consider driving the offender to his place of work. This was so even when serious credibility issues had been raised by the defendant who had denied the assault took place.

The Alberta Court of Appeal came to a similar conclusion in a 2019 case in which it considered a judicial review application from a labour arbitrator's decision, one to which is normally afforded considerable deference. 7 The decision was upheld, but the Court did apply words from a criminal case and confirmed that it is an error in law to "rely on what is presumed to be the expected conduct of a victim of sexual harassment":

      This Court and the Supreme Court have held that it is an error to rely on what is presumed to be the expected conduct of a victim of sexual assault: R v ARD, 2017 ABCA 237 at para 8 and 28; R v DD, 2000 SCC 43 at para 63. While these statements were made in the context of criminal proceedings, the caution about these types of errors should apply equally to arbitrators adjudicating sexual assault grievances.

No Need for Timely Response

Frequently the complaint from the victim is not uttered contemporaneously with the event. Many courts have noted that the reason for this is because the accuser often may be in a vulnerable position and reluctant to speak out against her aggressor. 8

Recognition has been given to the other means that the victim often shows their discomfort to the offensive action, including “nervous laughter, silence, or avoidance of the harasser”.9

Indeed, conduct which may be seen objectively as “acquiescence” may in fact be the victim’s means of avoiding an escalation.

The same observation was made in an Ontario decision, 10 confirming that the victim of abuse often suffers silently under the fear of losing her employment. The statement made by the offender that he considered his conduct was “welcomed” to the lack of an immediate complaint has been found to be “incredulous” and far from the realities of sexual harassment. The court noted that “recipients of harassing behaviour” …. “oft times cannot immediately express how distasteful or offensive they find their treatment, because of fear of repercussions in the workplace, the ultimate fear being that they will be terminated.”

The judge in this instance also was very critical of the theory advanced that the victim must complain to create an obligation on management to act. This argument perpetuates the very problem that the law wishes to outlaw.

Human Rights Cases

In administrative cases, it has been long recognized that a victim of sexual harassment may be compromised and hence an immediate complaint may always not be forthcoming. This need not be a bar to a finding of liability. 11 Due to the inherent power imbalance, an employee may well not raise immediate objections. 12 This reflects the victim’s economic dependent vulnerability. 13

There are have been several cases in which the complainant called an expert witness to testify as to the economic vulnerability of migrant farm workers. 14 Such evidence is likely not required.

The general view of the human rights tribunals may be fairly stated to be that victims of sexual harassment often do not report this offensive conduct due to embarrassment and shame. As was stated recently in one tribunal decision: 15:

Though no one argued it before me, the SCC’s decision in R. v. W.(R.), 1992 CanLII 56 (SCC), at p. 136, is instructive. The SCC found that, when assessing credibility, it was a reversible error of law to rely upon the stereotypical assumption that sexual assault survivors are likely to report the assault in a timely manner, stating (at p. 136):

This reference [to evidence that the older children had not raised concerns about the conduct at issue] reveals reliance on the stereotypical but suspect view that the victims of sexual aggression are likely to report the acts, a stereotype which found expression in the now discounted doctrine of recent complaint. In fact, the literature suggests the converse may be true; victims of abuse often do not disclose it, and if they do, it may not be until a substantial length of time has passed.

[121]     The Tribunal relied on this case in O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII) (“Presteve”), and stated that even though the statement the SCC made was made in the context of child sexual abuse victims, the Tribunal has considered expert evidence with respect to a similar phenomenon in women who experience sexual misconduct: see Cugliari v. Telefficiency Corporation, 2006 HRTO 7 (CanLII) at paras. 187 to 198, and Curling v. Torimiro, [1999] O.H.R.B.I.D. No. 17 (“Curling”) at paras. 70 to 72.

[122]     I agree, as the Tribunal did in Presteve, with the expert evidence given in other Tribunal cases that women who experience sexual misconduct often do not report or disclose this conduct due to feelings of shame, humiliation and embarrassment. My finding is supported by the fact that the applicant testified to exactly these feelings.

As is the case with all evidence, the decision maker must assess credibility and determine if the offered explanation for a delayed complaint or no complaint makes sense. In one example, the Tribunal did not believe the professed reason for delay as the complainant had proven herself quite able to assert herself over other employment concerns.16