King's review of sex assault allegations could have implications for court cases
Former professor Wayne Hankey facing charges for alleged incidents in 1970s, 1980s
The University of King's College's independent review of sexual assault allegations against former professor Wayne Hankey is the right thing to do, but could have an impact on current or future court cases, legal experts say.
Hankey, 76, is facing two counts of sexual assault and one count of indecent assault in connection with incidents, some of which are alleged to have occurred on the university's Halifax campus. The allegations date to the late 1970s and 1980s.
Hankey retired from King's in 2015, and also taught in the classics department for decades at Dalhousie University, including up until the week before the first charge was announced.
In the wake of the news of the first charge, King's announced it would conduct a third-party review to determine the facts of the incidents, figure out what authorities at the school knew and what actions they took, and make recommendations on how the university should respond.
Janice Rubin, a Toronto lawyer who specializes in workplace investigations at the firm Rubin Thomlinson, is carrying out the review and has publicly appealed for people to contact her with relevant information.
The terms of the review note that it will be carried out in a way that "will avoid impairment of the criminal law process" and will be confidential "to the extent permitted or required by applicable law."
But both of those points warrant a closer look.
Confidentiality has limits
Vivian Rachlis, a Winnipeg-based lawyer who conducts independent investigations with the firm Rachlis Neville, said questions about confidentiality are top of mind for victims and witnesses who participate in such investigations.
"Nine out of 10 cases, the first thing they say to us is, 'This is confidential, right?' Or, 'You're not going to tell anyone about this, right?'"
Although investigators are careful to protect the identity of participants when writing reports, they are up front about the limits of confidentiality.
Rachlis said there are two scenarios in which a participant's identity could be revealed. One is when the workplace or incident being investigated involves very few people, and someone may simply be able to figure out who is who in the report.
The other scenario is if the investigator or her notes are subpoenaed, in which case she could be required by law to disclose the names of participants.
How could the review affect a criminal case?
Those witnesses or complainants themselves could be subpoenaed to testify if their identities were disclosed to the court.
And, if someone's testimony in court differs from what they told the independent reviewer, it could be problematic for that person.
"The evidence from the workplace investigation might be used to attack someone's credibility," said Mireille Mortimer, a lawyer and workplace investigator at Mortimer Khoraych in Toronto.
"You can essentially make an argument to the judge, this person is not credible because they've made inconsistent statements."
But any conclusions drawn by a reviewer would not have weight in a criminal case because lawyers would have to present their own evidence and the judge would have to make their own findings of fact, Mortimer said.
Workplace investigations use the "balance of probabilities" to draw conclusions — a lower standard than what is used in criminal court, which is "beyond a reasonable doubt."
Civil case almost guaranteed, says lawyer
Ray Wagner, a Halifax lawyer who specializes in class actions, said a civil lawsuit against King's is almost guaranteed.
"People are coming forward in the criminal context. If they're brave enough to come in the criminal context, they're surely going to bring a civil action," said Wagner, who is a graduate of the Dalhousie law school and also disclosed his law firm is a major contributor to the school's restorative justice lab. "I would wager a pretty good set of odds that this is going to happen."
He said King's could use the information gleaned from Rubin's review in a civil suit, but it would have to disclose the information to the plaintiff, too.
He believes the review is not intended to be used to mount a defence in a civil suit, but rather to understand the scope of the issue, be accountable and make sure it doesn't happen again.
"I would be extremely surprised that this is going to go a long, litigious course."
Mortimer said a report and recommendations could be useful in a civil suit because they show the workplace or institution did its "due diligence."
"They might still be liable for the underlying conduct, for the fact that the sexual assaults happened, but they can show we responded appropriately when it came to our attention," she said.
The fact that King's has asked Rubin to make recommendations suggests transparency and commitment to addressing the issues and making changes — especially since the report will be made public, Mortimer said.
Rachlis said decades ago, employers would typically wait until a criminal process was completed before conducting their own investigation so as not to disrupt evidence or cause unnecessary anxiety to witnesses.
"That's changed. Employers and institutions are at a point in history where they not only can investigate pending a concurrent criminal process, but in my view, they must."
Rachlis called Rubin "possibly the most experienced and highly regarded investigator in the country," and said the terms of reference are detailed and impressive.
Rubin declined an interview with the CBC about the review.
King's also declined, but said in a statement the review was commissioned because of the seriousness of the alleged conduct.
Spokesperson Adriane Abbott said the school does not have the capacity to conduct an internal review of this scope, and that an internal review would be "unacceptable" given the circumstances.
There is no exact time frame for the review to be completed, and the resulting report will be made available — with redactions for privacy — to the public.