Justice on Campus

There are risks associated with going with a formal process, which is that it becomes extremely ugly very quickly

       Canadian universities resolve a vast number of harassment or discrimination complaints without undertaking a formal investigation, Simona Chiose reports. Many schools say that’s the best way to protect and help victims. But it could mean perpetrators will never be punished.

Canadian universities try to resolve most complaints of harassment or discrimination made by staff, faculty and students informally, numbers collected from more than 20 institutions and analyzed by The Globe and Mail reveal. The data show that less than 10 per cent of complaints are resolved through a formal investigation, with some institutions turning to a formal process in less than 1 per cent of cases.

Schools say they avoid a formal process not because it can be long, expensive and lead to damage to a school’s reputation, although that is true, but because they believe that informal processes better help victims. Offering help, mediation and education to the victim – and to the alleged perpetrator – can address the issue without making the victim feel as if they too are on the stand.

“We know that survivors have a history of not coming forward,” said David McMurray, the vice-president of student affairs at Wilfrid Laurier University, who chaired a recent task force at Ontario universities studying how to implement sexual assault and harassment policies on campus. “The research says that most want to disclose and access supports for their well-being.”

Experts agree, arguing that university administrators often steer complaints into mediation and accommodation because they have seen victims damaged by formal investigations.

“There are risks associated with going with a formal process, which is that it becomes extremely ugly very quickly,” said Constance Backhouse, a feminist legal expert and law professor at the University of Ottawa. “The person who is being accused of having sexually harassed or abused someone will in many cases hire lawyers and defend every single aspect of the file,” she said.

But many students say an informal process leaves too much to the discretion of an administrator. What they need is certainty that universities will take their complaints seriously.


“If someone has come forward and found the courage to say ‘Something inappropriate has happened to me,’ a formal investigation needs to go forward with the assumption that something probably did happen – rather than it being a decision on me,” said Jane, a UBC medical student who requested her name be changed for print.

She is afraid speaking out could impact her future career.

Jane reported to the medical school’s equity office a doctor who was supervising one of her hospital rotations. After several conversations with senior administrators, the university said it would not launch a formal, independent investigation.

“They said, ‘At this point, it’s still “he said, she said,”’ and they did not have enough information to support my complaint.”

She was given a stark choice. If she wanted to pursue the case, Jane would have to do so in front of the B.C. Human Rights Commission. She would be there on her own.

“The [university] emphasized the risk,” she said.

“That risk is real, it’s part of the culture of medicine. They weren’t overstating something, they were being honest with me. … I was told, ‘If you go ahead, you may not get a job.’”

So she dropped it. But since then, Jane has heard that the doctor has harassed other students.

In informal processes, offenders will almost never face harsh punishments such as suspension, expulsion, or in the case of a professor or staff member, firing. Instead, there may be mediation – with the victim – or education. Only a formal process can levy more severe penalties. And at the heart of many of the most high-profile cases of harassment on Canadian campuses is a fundamental disagreement about whether a university’s job is to educate – or prosecute.
                                                                                        Campus on trial

Last month, two women – at Brock University in Ontario and the University of Victoria – criticized their schools for seemingly protecting the men the women had complained about. Those revelations followed a high-profile case this past winter at the University of British Columbia, where the equity office long delayed investigating multiple harassment and assault complaints against a graduate student in the history department. The student was eventually expelled but the case hit the national media.

Canadians expect more from institutions of learning, and certainly more than the legal system has been able to deliver. In order to protect possible victims in the future, courts put current victims on the stand, testing their memories, emotions and personalities. It may be what justice demands, but the Jian Ghomeshi trial showed how awful that process can be to go through.

“It’s interesting to me because the criminal justice system is not working well in the U.S. and Canada, so there is a lot of effort to shift this back to some other institution in the hopes they could do better,” Dr. Backhouse said. “And the theory is maybe universities could do better for their campuses.”

That’s what governments hope. Like other workplaces, colleges and universities are already covered by provincial harassment codes and each school’s specific policies is built around that legislation.

But governments want universities to pay extra attention to students, the biggest group on campus. This month, Ontario passed Bill 132, requiring all postsecondary institutions to develop student-specific policies on sexual violence, a term that is increasingly used to describe a continuum of behaviour that uses physical or verbal coercion in sexual acts, including unwanted sexual comments, advances and rape.

That is a definition used by the World Health Organization: It may include acts that are considered harassment, but harassment also encompasses things like pinning up a firefighter calendar at work.

B.C. will pass similar legislation after Premier Christy Clark said her government supports a bill introduced by Green Party MLA Andrew Weaver.

Yet a written policy may not bring any certainty about what happens once a complainant enters an equity office.

Choose your own adventure

Two external reviews of harassment and assault cases at Dalhousie and the University of British Columbia found that one of the schools’ major failures was not clearly explaining the differences between formal and informal processes.

A review of dozens of university policies by The Globe and Mail found that universities take different pathways to a formal complaint. Universities are clear that when a rape is reported, they call police.

But many of the cases of harassment they deal with on a daily basis involve other types of sexual assault, unwanted touching or comments. In response, complainants may receive counselling and academic accommodations (such as not having to take classes with the alleged perpetrator). Informal complaints also often mean that no written record of the events, or even the substance of the complaint, is produced.

Many universities draw a sharp line between formal and informal processes, but a few appear to do just about everything informally. At Queen’s University, for example, informal resolutions can include everything from a conversation between the complainant, the respondent and the university, to written resolutions and no-contact orders. A formal complaint requires a three-person tribunal and happened once between 2009 and 2013.

At the University of British Columbia, however, a formal report only happens when someone puts their concerns in writing. A university committee is now coming up with a revised sexual assault policy.

“A policy is a common statement of expectations. It’s things like: what are your rights, what is going to happen, how long roughly can you expect it will take, how do you appeal,” said Glynnis Kirchmeier, one of the history students at UBC who went to the equity office and who, this week, filed a complaint with the B.C. Human Rights Commission over how the school handled her case. “It clarifies all these areas that I felt were hand-waved away as ‘You little girls need to trust us.’… It’s not the judgment call of an administrator.”

Complainants can expect sympathy, but not empathy, universities say. Equity officers stress they are not, cannot be, advocates.

“We have a consultative role,” said Ron Sutherland, the human resources director at Mount Allison, who deals with complaints from staff and faculty. “I would say [our role] is one of being neutral, but at the same time, it’s one of providing counsel and advice to both the complainant and respondent,” he said.

Immeasurable risk

Dr. Gurdeep Parhar, the executive associate dean for clinical affairs at UBC’s medical school, says if mistakes are made, they are often made out of an abundance of concern and caution about a victim’s vulnerability.

“As much as I want to take firm, aggressive action against a perpetrator, I have to keep in mind that sometimes the best interests of a complainant are not to move forward,” Dr. Parhar said.

It’s not a system he particularly likes; he would prefer to have a lower threshold to act independently.

“We are asking the people who are the most vulnerable to stand up for the complaint. They are the people at the bottom of the hierarchy. It won’t be a doctor complaining against another doctor, it will be a medical student complaining about a doctor, that’s a huge power differential.”

And because his role is not that of an advocate for either victim or alleged perpetrator, Dr. Parhar has to talk to both parties to even think about how to proceed.

That is what happened in Jane’s case. She agreed to have the harasser told of her complaint because she was not given any other viable options, she said.

“They may not have said my name, but … the equity office told me that they needed to hear his side of the story.”

She still worries about career repercussions. (It was to Dr. Parhar’s office that Jane brought her complaint, but he did not discuss any specific cases with The Globe and Mail.)

Still, Dr. Parhar says he always tells students to talk to him.

“What [they] don’t know is that we may have a corporate memory on this person,” he said.

With multiple complaints, he can pursue acting on his own. That could include starting up a formal, independent investigation or it may involve reaching out to disciplinary bodies within a profession.

It’s not a fast or a transparent process, but those are the tools he has.

Solutions in time

Even if every complaint led to a resolution that is fair to the victim and the perpetrator, it wouldn’t make a difference to the vast majority of the campus, Dr. Backhouse said. Ninety per cent of people will not report an incident.

That’s why the Ontario legislation also includes a campus climate survey that polls students on their experience of harassment and assault, if they reported the incident and if they found the help they needed. It’s up to the postsecondary education minister to decide when and if a climate survey should be undertaken. Many told the government a survey should be mandatory for every institution.

“This could be a one-time thing, what good is it then?” asked Peggy Sattler, an NDP MPP who sat on the subcommittee studying the bill. The “whole point of doing the climate survey is to establish a baseline to see the effectiveness of the policy.”

Other measures that have been shown to work to change campus culture include training for bystanders and courses in self-defence and assertiveness for women, the latter a landmark finding from a Canadian study.

It could be decades until all such initiatives take root. Until then, victims will have to decide if coming forward to report being harassed or assaulted is worth the risk