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 is guilty of sexual misconduct in the workplace, either due to a specific complaint or through some other source, they may choose to launch an investigation into the matter. Such an investigation often involves a third-party investigator being hired by the company or institution to conduct a full independent investigation into the matter. Ontario’s Health and Safety Act was recently updated, mandating employers to investigate any and all complaints of sexual misconduct or harassment in the workplace.

The third-party investigator is tasked with collecting any and all relevant information in order to make various findings of fact and come to a conclusion as to whether or not the misconduct occurred. In almost all cases, part of this investigation will involve speaking to the impugned employee and taking their statement on the matter. It is common for employees in this situation to feel compelled to speak to the investigator and give a statement, even if it may not be in their best interest.

Generally, an investigation will be launched prior to law enforcement getting involved, 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. These rights, 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. 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.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

Click here for more information on defending sexual assault allegations including common defences and the law of consent in Canada.

CP24: Civil Sexual Assault Lawsuit at St. Michael’s in Toronto.

Global News: Historical Sexual Assault Charges and Bill Cosby.

CityNews: Jordan Donich comments to CityNews regarding challenges with Sexual Assault Trials in Toronto.

CityNews: Jordan Donich provides expert commentary to CityNews regarding Sexual Assault Prosecution.

So What are your Rights?

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 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.

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 of law can create unique issues of law which are best resolved by the most experienced legal counsel.

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