In situations involving sexual misconduct in the workplace, criminal and employment law can intersect, sometimes with adverse results for an employee who has been accused.

In situations where an employer or institution believes that one of their employee’s may be guilty of sexual misconduct in the workplace, either due to a specific complaint or through some other source, they will launch an investigation into the matter. Ontario’s Health and Safety Act was recently updated, mandating that employers must investigate any and all complaints of sexual misconduct or harassment in the workplace. Such an investigation often involves a third-party investigator being hired by the company or institution to conduct a full impartial and independent investigation into the matter.

Third-party investigators are tasked with collecting any and all relevant information in order to make various findings of fact to conclude whether misconduct has occurred. In almost all cases, part of this investigation will involve speaking to the complainant, potential witnesses and to the impugned employee. Typically, the investigator will interview all relevant parties to gain a better understanding of what occurred.

In most cases, law enforcement will not be contacted until the employer has completed their investigation, except in more extreme cases. This fact can lead to complications for an employee who is later arrested and charged for the allegations. Those who are charged with a criminal offence automatically gain certain rights, such as the right to remain silent and the right against self-incrimination. However, these rights have often not yet attached during the employer’s investigation.

It is common for employees in this situation to feel compelled to speak to the investigator and give a statement. An accused employee may see it as their opportunity to tell their side of the story or attempt to explain away their actions. In some cases, the employee may believe they will look guilty if they refuse to give a statement or look like a bad employee if they refuse to cooperate with the investigation. In other situations, the employee may not understand that their actions were inappropriate. Giving a statement of any kind to an investigator in this situation will almost always have adverse impacts on the case moving forward.

The rights that attach upon arrest, which are based on the basic presumption that those who are criminally charged are innocent until proven guilty, protect a criminal defendant throughout the court process. The right to remain silent is guaranteed by section 7 of the Charter of Rights and Freedoms. It means that an individual who has been arrested and charged has the right to remain silent without the court drawing adverse assumptions from that silence. The right against self-incrimination, guaranteed by section 11(c) of the Charter of Rights and Freedoms protects criminal defendants from being compelled to testify in their own proceedings.

When an individual is arrested and charged with a criminal offence, they are always advised to exercise their right to remain silent and not provide the police with a statement, as such a statement could be used against them in court. This course of conduct is also advisable when dealing with an independent investigator. Since any statement made to the investigator may be used against an accused later, an accused is advised to make no statement at all.

When an employee is accused of sexual misconduct, an investigation has been conducted, and the employee is subsequently arrested and charged, it is possible for the government to make use of the evidence gathered through the independent investigation process. Through what is known as third party records applications, the government is able to introduce the statements made by the employee to the investigator in a criminal court proceeding against the employee. Depending on what the employee said in their statement, this can have very serious implications on the criminal case and can lead to a conviction.

In addition to statements made by the impugned employee, other evidence collected by the independent investigator may also be turned over to police to use against the accused. While statements of third parties generally cannot be read into evidence in Court, the police may use the evidence collected by the investigator to gather important evidence of their own. For example, if an independent investigator interviewed a third-party witness who made incriminating accusations against the accused, the police will know to interview that particular person to gather evidence.

If you have been accused of sexual misconduct in the workplace it is essential that you contact qualified legal counsel with a background in both criminal and employment law. The intersection of these two areas can create unique issues of law which are best resolved by the most experienced legal counsel. Due to the serious consequences that may result from an accusation of sexual misconduct in the workplace, it is important to consult with legal counsel as soon as possible to ensure all of your rights are protected.

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