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Defend Sexual Misconduct on Campus

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Our Experience

We are one of the few Firm’s to not only have defeated false sexual misconduct allegations on campus, but also to have succeeded on overturning the academic institutions on appeal. Our Firm frequently handles cases involving sexual misconduct and harassment within university and college settings. We are engaged by students seeking defence against allegations of sexual misconduct brought forth by another student and enforced through the institution’s investigative procedures. It’s not uncommon for sexual misconduct investigations on campus to lead to criminal charges. Students should be cautious before speaking with an investigator since anything said can be used with law enforcement. In fact, academic institutions encourage reporting to the police as part of their sexual violence policy.

Our extensive expertise in criminal defence related to sexual assault, fraud, and harassment is the basis for our partnerships with unions and insurance companies to defend their members. We advocate for the rights of members, students and employees within large businesses and governmental bodies when facing allegations of regulatory misconduct.

The prevalence of sexual assault and harassment on university campuses has sparked heightened discussions, particularly with the emergence of the #MeToo movement. Institutions across Canada are actively implementing comprehensive policies addressing the reporting, investigation, and repercussions related to sexual assault and harassment allegations involving students, professors, administrators, and anyone associated with campus activities. Although these policies are robust and needed, we frequently observe that they do not have an underlying presumption of innocence, and can be quick to throw an accused person under the bus. An accused person can often find themselves pitted against several forces with a false belief in sexual assault.

In one case, represented as File No. 3***23 in 2020, our Firm defended a student accused of sexually assaulting a peer at Ryerson University. Following the complainant’s formal report under Ryerson’s Sexual Violence Policy, an investigation commenced. Initially providing written submissions to counter the allegations, our Firm later discovered crucial third-party evidence withheld from the accused. Successfully appealing on grounds of procedural fairness, we resolved the matter without significant suspensions or detrimental notations on the accused’s transcripts. Subsequently faced with another complaint from a member of the Ryerson community, both complaints were ultimately resolved without criminal charges or lasting impact on the accused’s academic record.

In File No. 7***22 and R. v. Y.T. [2019], our Firm represented an individual accused of sexually assaulting a classmate at the University of Toronto. The complainant reported the allegations to both the university and the police. Temporarily delaying the university investigation pending the criminal case’s outcome, after a lengthy trial, the accused was acquitted of all sexual charges. Leveraging this acquittal, our Firm ensured no adverse notation tainted the accused’s college transcripts, effectively halting the university’s inquiry.

Handling File No. 1***96 in 2017, our Firm defended a university student in Ontario accused of sexual assault and assault during an exchange program involving an intoxicated complainant. Universities typically engage private lawyers to interview all parties and gather evidence. Despite an investigator presenting an alleged text message admission and apology for the sexual acts, our Firm demonstrated that this evidence was taken out of context. Following several months of litigation, we resolved the matter entirely without breaching the University’s sexual violence policy.

Common Sexual Assault Defences used by Lawyers

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In 2018, the Ontario government published the 2018 Student Voice of Sexual Violence Survey, shedding light on a concerning trend: over 50% of college and university students in Ontario had encountered some form of sexual violence while on campus. Responding to this alarming report, the Ministry of Training, Colleges and Universities took proactive steps by instituting a province-wide policy aimed at addressing sexual violence within academic settings.

This new initiative to combat sexual violence involves a comprehensive set of immediate actions to be implemented by both the Ontario government and educational institutions across the province. These actions encompass several key strategies, including mandating publicly funded colleges and universities to provide an annual report to their board of governors outlining measures taken to combat sexual violence and support survivors. Additionally, the government doubled its investment in the Women’s Safety Grant in 2018/2019, aiming to assist educational institutions in tackling this issue. Moreover, institutions are now required to establish and maintain diverse student-involved task forces focused on preventing and addressing sexual violence, mandated to report findings to both the board of governors and the Ministry of Training, Colleges and Universities. Finally, publicly funded colleges and universities were tasked with reviewing and updating their sexual violence policies by 2019 to ensure relevance and effectiveness.

Consequently, these government-driven changes have prompted colleges and universities to reconfigure their approach to handling sexual violence on campus. Many institutions have developed comprehensive policies delineating the steps of the complaint process and providing various forms of support for victims. However, while these policies aim to ensure fairness throughout, few have undergone litigation or undergone testing in court, especially in relation to criminal proceedings.

New Changes to Sexual Assault Laws in 2024

It’s crucial to recognize that investigations conducted on university campuses can easily lead to criminal charges, and cooperating with the university doesn’t necessarily afford the accused any legal protection in criminal proceedings. Regrettably, individuals accused in such cases often have fewer legal safeguards because external investigators engaged by the institution aren’t bound by the same stringent evidentiary constraints as law enforcement. Furthermore, the accused doesn’t benefit from the same privacy protections regarding collected evidence, such as a publication ban in criminal proceedings.

One significant issue arises when an accused individual provides a statement within the context of a sexual misconduct investigation; this statement might inadvertently lead to self-incrimination since it can be used against them in a criminal court. This creates a precarious situation wherein the accused’s right to remain silent can be compromised.

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Understanding Campus Investigations

Applicable Legislation

Before 2016, Ontario lacked specific legislation addressing sexual assault and harassment within college and university campuses. Acknowledging the increasing recognition of these issues, the Ontario government implemented Ontario Regulation 131/16: Sexual Violence at Colleges and Universities. This regulation establishes a statutory framework mandating sexual assault and harassment policies for all institutions in Ontario. Its purpose is to ensure campuses have proper measures not only to safeguard the community but also to effectively address incidents of sexual assault and harassment when they arise.

The regulations require every college and university in Ontario to have a comprehensive sexual assault and harassment policy. These policies must include information on accessing support services both on campus and within the community. They should also outline the institution’s commitment to accommodating any student affected by sexual violence, specifying that students needing accommodations should request them from the school. Moreover, policies must communicate that formal reporting of incidents is not mandatory and that the choice not to report won’t hinder access to support services. Lastly, they must detail the processes for reporting incidents to the school, as well as the subsequent investigation and disciplinary procedures.

In addition to developing these policies, Ontario Regulation 131/16 mandates that colleges and universities make their sexual assault and harassment policies widely available to all members of the campus community. Furthermore, the regulation requires comprehensive training on addressing sexual violence for various stakeholders, including senior administrators, members of governing bodies, faculty, staff, other employees, and enrolled students.

Disclosure vs. Reporting

Members of the university community who have encountered sexual violence on campus have the option to either make a disclosure or file a formal report with university authorities. Disclosure involves a community member sharing that they’ve experienced sexual violence on campus. Such disclosures, on their own, do not trigger an investigation or formal process. Often, individuals make disclosures while seeking support services but might not be ready to formally report their experience. University members who receive such disclosures are expected to maintain confidentiality unless given explicit permission by the person disclosing. Colleges and universities typically offer an array of support services for victims of sexual violence. Individuals wishing to disclose their experience to access campus support services should never feel pressured to make a formal report until they are ready.

In addition to disclosing incidents, victims of sexual violence can opt to file a formal report with the school, which carries different implications from a mere disclosure. Filing a formal report initiates an investigation and a process to address the alleged incident. Most campuses provide various methods for reporting, such as online, over the phone, or in person. In emergency situations, contacting 911 should always be the primary step. Once a formal report is filed against a university community member, the institution has the authority to launch an investigation. Both the complainant and the respondent will receive notification of the allegations, and both parties have the right to have legal counsel present throughout the process.

Confidentiality of Reporting

When a report or disclosure regarding sexual assault or harassment is made to a university, the information is treated confidentially in line with relevant legislation. Confidentiality is maintained and the information is only shared with necessary individuals to appropriately address the matter. Typically, universities uphold confidentiality unless there’s an immediate risk of harm to the university community, the individual reporting, or others. Disclosure may also occur if mandated by law, particularly in incidents involving minors or situations where mandatory reporting aligns with human rights or occupational health and safety legislation.

How Universities Respond

After the filing of a formal report of sexual assault or harassment with the college or university, the appropriate authorities will assess the report to determine its alignment with the institution’s sexual harassment policy. Typically, universities arrange an interview with the complainant to gather any additional necessary information and offer available support services. These support services may include separating parties on campus, altering class schedules, granting deferrals for exams or assignments, emergency financial aid, housing changes, or informing the respondent about unacceptable behavior. These support measures are usually implemented upon initial contact and continue throughout any ensuing investigative process.

If the college or university decides that further investigation isn’t warranted, the complainant usually has a brief window to appeal this decision. However, if the institution deems a thorough investigation necessary, an investigator will be appointed to conduct a comprehensive inquiry.

Whether a full investigation proceeds largely depends on whether the complainant decides to disclose the alleged sexual violence or formally report it. Institutions can only launch an investigation upon receiving a report. A disclosure alone isn’t sufficient, as the decision to pursue further action rests entirely with the complainant. Even when a formal report is submitted, the complainant can request to forego an investigation, although the university may proceed with the investigation regardless of the complainant’s cooperation.

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How Investigations Proceed

When a college or university determines that a comprehensive investigation into allegations of sexual violence on campus is necessary, they appoint an investigator. Typically, this investigator could be a university member or an external professional (paid by the institution) possessing the necessary skills, knowledge, and experience to conduct a thorough inquiry. Once assigned, a formal notice is sent to the respondent, informing them of the allegations and the initiation of an investigation. It’s essential to note that both the complainant and respondent have the right, and are encouraged, to seek legal counsel during this stage.

Upon the launch of an investigation, the respondent is typically given the opportunity to respond to the allegations. If the respondent chooses not to cooperate or respond, the investigation may proceed without their input. However, if the respondent participates, their response is shared with the complainant for review, and the complainant often has the chance to address the respondent’s statements. Both parties can also provide further evidence they consider relevant, including witness information.

Once the investigator has gathered all relevant evidence, they compile a comprehensive report, ensuring fairness and impartiality throughout. This report is then submitted to the college or university’s Office of Safety or equivalent department for review. Subsequently, the Office of Safety communicates the investigation’s outcome in writing to both the complainant and respondent.

Potential Outcomes of the Investigation

Upon completion of a thorough investigation and review of the report by the Office of Safety at the college or university campus, the institution determines the next steps. If the respondent is a student, the report typically goes to the Provost or Vice-Provost (varies by campus), who decides whether to bring the matter before a Committee. This Committee then convenes a hearing to ascertain whether the student violated the college or university’s Code of Student Conduct. During the hearing, the Committee examines all evidence and decides whether the respondent is guilty of committing sexual violence against another member of the university community.

In cases involving respondents who are college or university staff, such as professors or administrators, the report is usually reviewed by the appropriate university official, often the Vice-President or a Human Resources designate. This official determines whether sexual violence occurred as alleged and identifies the best resolution. Both the respondent and the complainant receive written notification of the decision.

Are Sexual Violence Policies the same at all Universities?

In Ontario, while higher education institutions have the autonomy to shape their Student Code of Conduct, they commonly encompass similar prohibitions. Virtually every Student Code of Conduct includes clauses addressing specific offences. These typically involve physical violence, such as prohibiting students from physically assaulting, threatening, sexually harassing, or damaging personal property of others. Disruption to the institution’s normal functioning is often cited as a violation. Likewise, causing physical damage to any part of the school’s property, whether movable or immovable, constitutes a breach of the Code.

Unauthorized entry into premises or the misuse of school facilities, equipment, or services is also commonly addressed. Moreover, provisions may pertain to making false and vexatious accusations against others, aiding or abetting fellow students in committing offences, failing to comply with specified sanctions outlined in the Code, and unauthorized possession or use of firearms or ammunition on school grounds. These elements are frequently included in the Student Code of Conduct across various educational institutions in the region.

Consequences of Committing Sexual Violence on Campus

Navigating accusations of sexual violence on campus can indeed have profound consequences for the accused within the university community. Potential outcomes may involve reprimand, additional education or training, corrective actions, alterations in duties or supervision, suspension, termination, expulsion, engaging in collective agreements or Memoranda of Agreement, or potentially forwarding findings to law enforcement for criminal charges.

Certain campuses may offer mediation or informal resolution processes, but these are only suitable when both parties consent and when face-to-face interaction isn’t necessary. Regardless of the resolution, an accusation of committing sexual violence on campus carries significant weight and could lead to severe repercussions for the accused. Therefore, individuals facing such accusations are strongly advised to seek immediate guidance from qualified legal counsel to navigate these complex situations effectively.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.