In the wake of the #metoo movement, regulators are receiving an increasing number of complaints of sexual misconduct against registrants. These complaints often do not settle. In the face of mandatory revocation, registrants usually contest these allegations, regardless of the cost consequences. These complaints are also factually and legally complex. Investigating and prosecuting these files requires not only knowledge of complex evidentiary rules but also a trauma-informed approach to complainant management. The focus of this article is to offer regulators some trauma-informed tools to support vulnerable complainants to successfully participate in disciplinary proceedings.

What is a Trauma-Informed Approach to Professional Discipline Proceedings?

A trauma informed approach recognizes that sexual misconduct complaints are typically preceded by trauma. Complainants often are dealing with the effects of trauma, and the disciplinary process can itself lead to re-traumatization. With this in mind, the goal of regulators when dealing with vulnerable complainants should always be to avoid causing further harm to them, while also meeting their public protection mandate. The following are trauma-informed tools that will help regulators meet this goal.

1. Early and Open Communication

A trauma-informed approach to complainants is predicated on open, two-way communication. Investigators and prosecutors should connect with complainants early on to explain how the disciplinary process works and find out what complainants need to participate successfully (including testimonial accommodations, as discussed below). By checking in early with complainants about the process, regulators will establish a trusting relationship with them, which will in turn encourage them to participate in the proceedings.

When contacting complainants, regulators should be clear about their role in relation to the complainant. Regulators do not represent the interests of the complainant but rather those of the public. In disciplinary proceedings, regulators have an obligation to disclose to the registrant any relevant information received from complainants. By being upfront about their disclosure obligations, regulators will ensure that they do not lose the trust of complainants when information is later disclosed to the registrant.

2. Avoid Assumptions or Stereotypes

Regulators should avoid assumptions about how trauma might affect complainants. For example, many victims delay reporting a sexual assault and continue to have contact with the offender following assault. Our appellate courts have been clear that “rape myths” (stereotypes about how a sexual assault victim should act) have no place in the courtroom. Yet, these myths still persist. As such, regulators must be alive to any myths that may be inadvertently introduced in their proceedings. Similarly, regulators must avoid stereotypical language – a complainant should not be referred to by her race or gender identity.

Moreover, when assessing the evidence of complainants, assumptions about how trauma may impact a complainant should be avoided. When complainants recount their assault, they might not present as “traumatized”; Trauma can impair memory and flatten affect. Moreover, any assessment of demeanour is often predicated on stereotypes and is of limited evidentiary value.  Tribunal members should receive training on the effects of trauma on a witness’ ability to recount evidence, so that they avoid making assumptions about the impact of trauma on complainants. Prosecutors should make submissions to tribunals to avoid such assumptions when assessing the evidence of complainants. Credibility assessments must instead be made by assessing the internal and external coherence of the complainant’s evidence. 

3. Testimonial Accommodations and Publication Bans

The adversarial system is intimidating. Complainants can be re-traumatized by being isolated in a witness box, aggressively questioned, and then having their name published in a public decision.  Many regulatory tribunals have introduced testimonial accommodations and publication bans to make the hearing more accessible for vulnerable complainants. Testimonial accommodations include the ability to have a support person present when they testify, the ability to testify from outside the tribunal or from behind a screen, and if the registrant is self-represented, the ability to have counsel appointed to perform the cross-examination of the complainant. In the era of virtual proceedings, many of these testimonial accommodations may look different than they did in person. 

There are many steps that regulators can take early in the disciplinary process to facilitate these accommodations for complainants. Regulators should consider creating an accessible pamphlet or resource outlining the resources and testimonial accommodations available to vulnerable complainants. Prosecutors should touch base with the tribunal to determine how they implement testimonials accommodations in virtual proceedings. Prosecutors should also ask complainants early on if testimonial accommodations or publication bans would assist them in testifying. In many cases, testimonial accommodation and publication ban applications are automatic and do not require evidence. In some cases, they are discretionary and may require an evidentiary record. In such cases, prosecutors should consider whether someone other than the complainant can testify or if the complainant’s evidence can be provided by affidavit, so that the complainant does not have to testify multiple times. 

4. Avoid Questions about Past Sexual History

Sexual misconduct matters should not turn into a hearing into the sexual history of the complainant, which could lead to their re-traumatization. Such evidence is inadmissible if it is led to support the “twin myth,” that is, the propositions that (1) persons with a sexual history are more likely to consent to sexual activity or (2) that they are less worthy of belief. Furthermore, such evidence must be relevant to a live issue at trial.  

In the criminal courts, section 276 of the Criminal Code of Canada prohibits accused persons from introducing such evidence, unless they make an application to lead such evidence for a proper purpose. Some disciplinary tribunals have introduced similar rules to protect complainants from an unchecked inquiry into their sexual history. Even without these rules, disciplinary tribunals have an obligation to ensure that all evidence before it is relevant and not informed by stereotypes or myths. Following the 2019 Supreme Court of Canada decision in Barton, even prosecutors must make an application to the trier of fact before they can introduce a complainant’s sexual history into evidence. 

This means that regulators must take care not to inadvertently introduce evidence of a complainant’s sexual history. Investigators should avoid questions such as “has this happened to you before?” or “were you a virgin when this happened.” While these questions might seem innocent, they can inadvertently introduce the matter of the complainant’s sexual history into evidence. 

Conclusion

The above are only a few of the many tools that investigators and prosecutors can use to make their processes more trauma-informed. A trauma informed approach is not only more humane, it is also necessary for a successful investigation and prosecution. Trauma-informed tools enable complainants to provide their evidence to the regulator, which in turn enables the regulator to better meet their public protection mandate. As regulators spend an increasing amount of time managing sexual misconduct files, it behooves all of us to adopt a trauma-informed approach to our interactions with complainants.

Lisa Feinberg is a professional regulation and workplace lawyer with GlickLaw. As prosecution counsel for regulators, Lisa draws upon her experience working as crown counsel for several years in Northern BC, where she primarily prosecuted sexual offences.

 

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1. See for example: OCSWSSW, “Message from the Registrar and CEO, OCSWSSW takes Steps to address increase in sexual Misconduct-related complaints,” online: Message from the Registrar and CEO: OCSWSSW Takes Steps to Address Increase in Sexual Misconduct-Related Complaints – OCSWSSW; FSBPT. “Sexual Misconduct and Boundary Violations,” online:  Sexual Misconduct and Boundary Violations (fsbpt.org)
2.  Haskell, Lori et al, “The Impact of Trauma on Adult Sexual Assault Victims,” 2019, Report submitted to Research and Statistics Division, Justice Canada, online: The Impact of Trauma on Adult Sexual Assault Victims (justice.gc.ca) at p. 8.
3.  Haskell, Lori et al, above, at p. 5.
4.  See the leading decision of R. v. Ewanchuk, [1999] 1 SCR 330 at para. 82. Delayed and incremental disclosure is a plausible response to trauma: See R. v. D.P., 2017 ONCA 263 at paras. 29-31, citing R. v. D.D., 2000 SCC 43. 
5.  In R. v. Barton, 2019 SCC 33, the Supreme Court of Canada was critical of both the prosecution and defence for referring to the complainant repeatedly as a “native girl” or “native woman”. The complainant’s identity as an Indigenous woman was not relevant to the determination of whether she was sexually assaulted and in fact could unintentionally invoke biases about Indigenous girls and women are being less worthy of protection or belief (see paras. 205-207).
6.  Haskell, Lori et al, above, at p. 18.
7. v. Rhayel,2015 ONCA 377 at paras. 85-89.
8.  Haskell, Lori et al, above, at p. 32.
9.  Questions about prior sexual activity between the registrant and the complainant prior to the sexual offence are presumptively inadmissible. In R. v. Goldfinch, 2019 SCC 38, the Supreme Court of Canada held that the fact that the offender and the complainant were “friends with benefits” was inadmissible in the prosecution of the sexual assault at issue.
10.  See for example, among others, Rule 13.05 of the Ontario College of Teachers’ Rules of Procedure of the Discipline Committee and Fitness to Practise Committee (oct.ca); Rule 11.07 of RULES OF PROCEDURE OF THE DISCIPLINE COMMITTEE (crpo.ca); Rule 9.08 of the College of Massage Therapists of Ontario’s 2023-04-10-Discipline-Committee-Rules.pdf (cmto.com); Rule 14 of the Ontario Physicians and Surgeon’s Discipline Tribunal OPSDT: Rules of Procedure.
11. v. Barton, 2019 SCC 33.