CanScribe Policies

Sexual Misconduct Policy

Policy Objectives

To ensure all students and staff are entitled to a study and work environment that is free from Sexual Misconduct.

Policy

The College considers Sexual Misconduct to be a serious violation of an individual’s fundamental rights. Members of the College community who engage in Sexual Misconduct may be subject to a range of disciplinary measures, up to and including suspension, dismissal or expulsion from the College.

Procedure

Members of the College community who experience and report Sexual Misconduct will be provided with support by the College and assistance with accessing additional support services both on and off the Campus. However, knowing what constitutes Sexual Misconduct is often difficult.

This applies to all members of the CanScribe community, which includes students, employees, guests and visitors. The Policy is intended to address and eliminate Sexual Misconduct which occurs within the context CanScribe and activities and which interferes with an individual’s employment or studies at the College. Behaviour which occurs separate from any College-related activities, and which is unrelated to an individual’s employment or studies at the College is not covered by this Policy.

This Policy is not intended to be used in situations where Sexual Misconduct is of a violent nature. In the event of violent incidents, law enforcement authorities will be contacted, and support will be provided to the victim. The College reserves the right to investigate and take appropriate steps in the event of violent situations, if necessary to protect the safety of the College community. Notwithstanding the existence of this Policy, every individual has the right to pursue other courses of action, even when steps are taken under this Policy.

To constitute Sexual Misconduct, behaviour may be a single serious incident or may be repeated or persistent behaviour. Sexual Misconduct is any form of sexual contact without a person’s consent, including the threat of sexual contact without consent. Sexual Misconduct may include one or more of the following:

• Sexual assault
• Sexual exploitation
• Sexual harassment
• Criminal harassment (Stalking)
• Indecent exposure
• Voyeurism
• The distribution of a sexually explicit photograph or video of a person to one or more persons   other than the person in the photograph or video without the consent of the person in the photograph or video and with the intent to distress the person in the photograph or video
• The attempt to commit an act of sexual misconduct
• The threat to commit an act of sexual misconduct

Sexual harassment refers to unwanted communications or actions that are sexual in nature, and are offensive, intimidating or humiliating. It can take many forms including verbal, written or visual. Sexual harassment may include any of or all of the following conditions:

• Conduct or comment of a sexual nature made by a person who knows or ought to reasonably know that such conduct or comment is unwanted or unwelcome
• Expressed or implied promise or a reward for complying with a request of a sexual nature
• Actual reprisal or an expressed or implied threat of reprisal or refusal to comply with a request of a sexual nature
• Actual denial of an opportunity or an expressed or implied threat of denial of opportunity for refusal to comply with such a request
• The conduct or comment is intended to, or has the effect of, creating an intimidating or hostile environment
• Differential treatment of a former or current intimate partner where a power relationship exists

Examples of sexual harassment include, but are not limited, to the following:

• Remarks or innuendos regarding an individual’s appearance, clothing or sexual life
• Unwelcome questions or sharing a personal information regarding a person’s marital status, sexuality, sexual activity, sexual orientation, or gender/transgender issues
• Persistent, unwelcome sexual flirtations, advances, propositions, invitations or requests
• Sexually suggestive, obscene, or degrading comments or gestures
• Displaying or circulating sexually graphic or derogatory pictures or written materials
• Use of online activities such as email, text messaging or social networking to initiate or participate in any of the above behaviours
• Leering, ogling or sexually oriented gestures
• Inappropriate and unnecessary touching

Sexual Assault

Sexual assault is any form of sexual contact that occurs without any freely given consent (i.e. non-consensual touching that is sexual in nature, forced penetration). Sexual assault includes date rape or acquaintance rape, which happens between acquaintances, friends or between people who are dating. There are three levels of sexual assault in the Criminal Code of Canada:

• Level 1: any forced sexual contact without bodily harm
• Level 2: forced sexual contact causing or threatening to cause bodily harm or using a weapon (imitation or real)
• Level 3: forced sexual contact that causes aggravated bodily harm or endangers the life of the victim or others

Criminal Harassment (Stalking)

Criminal harassment, which includes stalking, is prohibited by the Criminal Code of Canada. Criminal harassment prohibits deliberate conduct that is psychologically harmful to others. For stalking to be criminal harassment, here’s what’s required: A person does one or more of the following things:

• repeatedly follows you, or anyone you know
• repeatedly communicates with you, or anyone you know, directly or indirectly
• repeatedly watches you, or anyone you know, or lurks around your home, workplace, or any other place you happen to be
• engages in any threatening conduct directed at you or a member of your family
• The person knows that their conduct is harassing you or they are reckless about whether their conduct is harassing you. Reckless means they know their conduct may harass you, but they don’t care
• The person’s conduct causes you to reasonably fear for your safety or the safety of someone you know

Your fear has to be reasonable. The person does not have to realize that their conduct is scaring you for it to be criminal harassment. A person can be stalking even if they don’t physically hurt anyone or damage any property. The law is designed to protect psychological, emotional, and physical safety. Stalking may start with conduct that seems more annoying than dangerous. Often, the conduct is legal and even socially acceptable, if it’s just an isolated incident. But when it’s repeated, it may scare the victim. Conduct such as following someone, or sending gifts or letters, may become intimidating if done continually and against the person’s wishes.

Sexual Exploitation

Sexual exploitation is the sexual abuse of children and youth through the exchange of sex or sexual acts for drugs, food, shelter, protection, other basics of life, and/or money. Sexual exploitation includes involving children and youth in creating pornography and sexually explicit websites. Jurisdiction will be triggered if all of following criteria are met:

• Both of the parties (the Complainant and the Respondent) are students, employees, guests or visitors
• The last incident of alleged misconduct occurred within the preceding six (6) months
• The behaviour occurred in the context of a College related activity (ie: on College property or at a College sponsored event)
• The behaviour, if true, would constitute a contravention of the Policy by meeting a definition of Sexual Misconduct as stated in the policy

The College will deal with allegations of Sexual Misconduct in a procedurally fair, unbiased and timely manner. Complainants and Respondents shall be advised of the procedures available to them and will be provided with a copy of this Policy. The Parties shall be advised of the allegations and responses of both the Complainant and Respondent and shall be accorded reasonable opportunity to provide comments in support or defense of their own positions. Both the Complainant and Respondent have a reasonable right to respond to any information gathered during the investigation that will be utilized in determining a finding of Misconduct/Harassment or No-Misconduct/Harassment.

For a complaint to be considered under this Policy, it must be submitted within six (6) months of the date of the last alleged incident of Sexual Misconduct. The College may consider an extension to file a complaint past the six (6) month limit, if reasonable grounds for such an extension exist in extenuating circumstances. Disclosure and Reporting Options Complainants have the following disclosure and reporting options, available both on and off campus, and may choose any of these options or any combination of the available options.

• No Report: The Complainant may wish to disclose sexual violence in order to seek emotional support, medical support, or advocacy, but may not want to report to police or other campus authorities. Subject to certain limited exceptions, this decision should be respected, and the Complainant should still be offered support services.
• Report to Police: The Complainant may wish to make a police statement, which would generally be followed by a criminal investigation. An appointed campus employee can accompany the Complainant if requested or the College can contact a community-based victim support worker to support and accompany the Complainant.
• Third Party Report to Police via Community Victim Service Agency: The Complainant may wish to make an anonymous Third-Party Report through a community-based victim support worker; reports are sent to police by an intermediary agency and provide detailed information about the incident and the Respondent, but do not include the name or contact information of the Complainant. A Third-Party Report is not in and of itself a police investigation; it is an option of last resort for the Complainant who would not otherwise provide information to the police but who may want to access support and let the police know of a sexual predator in order to protect others.
• Medical Assistance / Forensic Medical Exam: it is advisable for anyone who has experienced a sexual assault to seek medical attention to address possible physical injury, pregnancy and/or sexually transmitted infections. The Complainant will be referred to the nearest hospital and to be connected with a sexual assault response worker or advocate who can provide support and can accompany her/him to the hospital. The Complainant will be informed of the need to collect any forensic samples while he/she decides whether or not to report the sexual assault to police. Forensic samples can be collected and stored for up to one year while the Complainant decides whether or not to speak with the police.
• Formal Complaint to College: The Complainant may wish to make a formal report to the College, precipitating the College Sexual Misconduct process if either the Complainant or Respondent is a student, staff, visitor or guest to the College. The Complaint Procedure process is outlined below.

Interim Relief

The College or Authorized Representative may take whatever interim measures they deem necessary to protect the College community, pending the completion of an investigation into a Sexual Misconduct complaint. Such measures may include, but are not limited to:

• No-contact between the Complainant, Respondent, Witnesses or other parties
• Ordering the Complainant, Respondent, Witnesses or other parties to cease and desist from engaging in a particular type of behaviour
• Restricting access to a specific campus or specific areas of campus
• Suspending one or both of the Parties from the College pending investigation
• Reassignment of supervision/assessment duties in cases where the Respondent is an instructor or employee

Specific conditions to be included in the interim provisions will be dependent upon the circumstances of each case and the level of risk to the Complainant. All parties will be advised that the interim protection provisions, implemented by the College, are not to be confused with a legal protection order obtained through the Criminal Justice System.

Confidentiality and Anonymity Allegations of Sexual Misconduct may require the disclosure of sensitive and personal information, which is protected from unauthorized disclosure by applicable privacy legislation. In order to encourage persons who have been subject to Sexual Misconduct to come forward, and to protect the rights and reputations of the Complainant and the Respondent throughout the investigation process, the College will attempt to ensure that confidentiality is maintained except where disclosure is necessary for the purposes of investigating and resolving the complaint or where required by law. Confidentiality must, however, be distinguished from anonymity.

If a Complainant wishes to proceed with a Formal Investigation by the College, procedural fairness requires that the Respondent be made aware of the nature of the complaint, including the identity of the Complainant. All parties and witnesses to a complaint will endeavor to maintain confidentiality throughout the Formal Investigation procedures. Investigators will stress the confidentiality of the investigation with all persons involved in the process, including the Complainant, Respondent and Witnesses. Individuals involved in the investigation process who are found to have breached confidentiality may be subject to discipline.

The limits to confidentiality will be outlined to the Complainant as soon as possible after disclosure. The Complainant will be advised that privacy rights are not absolute, and the College may be required to take immediate action, such as contacting the police, in relation to a disclosure of Sexual Misconduct or violence in the following circumstances:

• There are reasonable grounds to believe that others in the College community may be at significant risk or harm based on the information provided
• An individual is at imminent risk of severe or life-threatening self-harm
• An individual is at imminent risk of harming another person
• There is a legal requirement to report
• There is a requirement to comply with a court order for release of information

The College has the authority to make the decision to release information without consent in the above circumstances. If a decision is made to release information without consent, only information relevant to the health or safety concern in question will be released. The Complainant will be informed of any decision to release personal information. Subject to the exceptions listed above, consent from the Respondent would be required before this information could be disclosed further by the person receiving the disclosure or report. Provincial privacy laws allow such information to be shared without consent in the following circumstances:

• If there are compelling circumstances that affect anyone’s health or safety
• To assist in an investigation or in deciding to start an investigation
• If the disclosure is for the purposes for which the information was originally collected, and the disclosure is necessary for these purposes In some instances, the College may need to alert the College community to incidents or potential threats by sexual predators.

These alerts will be communicated in multiple formats and media to ensure accessibility by all members of the College community. The alerts will not identify the Complainant but will include the following information:

• Date and time that the disclosure or report was made
• The College employee to whom the disclosure or report was made
• Date and time that the incident occurred
• Location where the incident occurred
• Information about the incident
• Non-identifying information about the perpetrator (i.e. gender, approximate age, ethnicity, height, weight, hair colour, eye colour, what the perpetrator was wearing, distinguishing marks)
• Information on how to access support services

Complaint Procedure Initial Consultation

A member of the College community who feels they have experienced or witnessed Sexual Misconduct and is considering a complaint process is encouraged to discuss the matter with a senior manager. The senior manager will engage in a confidential discussion regarding the Complainant’s options, or direct them to the best individual, to provide the Complainant with information and guidance regarding:

• Whether the behaviour(s) in question may fall within the definition(s) of Sexual Misconduct under this Policy
• Possible procedures and options available to the Complainant under this Policy or under alternate Policy or process (as appropriate)
• Where a Complainant wishes to pursue a formal complaint, he/she will be referred to the appropriate individual as provided in the Policy
• Available support for the Complainant both on and off campus

The senior manager does not determine whether behaviours are Sexual Misconduct, they only confirm that behaviours as described by the Complainant may constitute Sexual Misconduct. Only a Formal Investigation can determine whether Sexual Misconduct has taken place. The senior manager works with the Complainant, providing options for the Complainant to deal with presented behaviours. The senior manager will maintain confidentiality of this discussion. However, if the Complainant claims that the Sexual Misconduct involves violence, the senior manager must report the situation to the President who will investigate and may encourage the Complainant to report the situation to the police, following one of the reporting options set out above.

 

A Complainant is not precluded from reporting to police if they have reported the Complaint to the College. If the Complainant, after initial consultation, wishes to proceed to a formal complaint of Sexual Misconduct under the Policy, the senior manager may provide advice on the necessary elements for a Request for Formal Investigation.

Informal Resolution

If a Complainant wishes to pursue further actions after an initial consultation with the senior manager and the Misconduct and/or harassment behaviours are subject to process under this policy, they may first seek Informal Resolution. Informal Resolution is not mandatory and may not be appropriate for all manner of Sexual Misconduct. The Complainant may choose to proceed immediately to Formal Resolution. If the behaviours are student-to-student and classroom based, the Complainant may request that the Instructor or senior manager intervene to address the misconduct or harassment behaviours and act as appropriate to the situation. Where misconduct or harassment behaviours are not student-to-student/ classroom based or faculty intervention is not appropriate or possible, the Complainant may seek Informal Resolution through the President.

When the senior manager receives a verbal or written complaint of Sexual Misconduct, he/she will follow-up on such allegations in a timely manner including informing the Respondent of the Complaint and providing a copy of this Policy. Such follow-up may involve attempting to facilitate a mutually agreed-to resolution between the Complainant and Respondent, applying appropriate College Policy or procedures, and/or taking appropriate preventative, disciplinary or remedial measures. Disciplinary actions may include but are not limited to:

• Warning or reprimand
• Referral to educational or psychological services
• Restricted/no access to specific areas of the College or to a specific campus
• Suspension/expulsion from specific classes and/or from the College

Where the complaint is against a senior manager the request for Informal Resolution would be directed to the President.

Formal Investigation

Where the Complainant wishes to pursue Formal Investigation and both Complainant and Respondent are students, the Complainant must submit a written and signed request for Formal Investigation, to the President. If the Complainant or Respondent is a college employee, a determination will be made for the Formal Investigation, including whether an Internal or External Investigator should be appointed.

Where the complaint moves to Formal Investigation under College Policy, an Investigator will be appointed. Every effort will be made to do this within five (5) working days of the complaint being received by the President. The appointed Investigator will ensure that both the Complainant and the Respondent are aware that a Formal Investigation has commenced, and that each has a copy of the Sexual Misconduct Policy. The Investigator will receive information from the Complainant, the Respondent, and any other individuals whom the Investigator believes may have information relevant to the complaint. Information may be received through written documentation, and/or interviews.

The Investigator will ensure that both the Complainant and the Respondent are aware of the positions of the other, and of any allegations made against them, and are given a reasonable opportunity to respond. Where an Investigator conducts interviews, the Complainant and the Respondent may request that a support person be present. This person will act as an observer/support and will not participate in the proceedings. An interpreter for either or both the Complainant and Respondent (where either or both parties have English as a second language) may be provided by the Investigator.

After completion of the investigation, and within ten working days, the Investigator will complete a written report, including a copy of the written complaint and findings of fact, and submit the report to the College President. The report will state a positive or null Finding of Misconduct/Harassment based on the balance of probabilities and may include recommendations for resolution of the complaint and/or for remedial or disciplinary action. The College reserves the right to initiate an independent investigation of Sexual Misconduct if sufficient cause has been demonstrated to warrant such action.

Formal Decision

After reviewing the Report of the Investigator, the College President will make decision(s) on findings of Sexual Misconduct and on appropriate actions in the circumstances. The decision will be rendered, in writing, to the Complainant and Respondent as soon as possible but in any case, within ten (10) working days of the receipt of the report of the Investigation. The College will provide a summary of the findings of the Investigator with his/her decision to the Complainant and the Respondent.

Where findings that Sexual Misconduct has occurred, disciplinary decisions may include, but are not limited to:

• Warning or reprimand
• Referral to educational or psychological services
• Restricted/no access to specific areas of the College or to a specific campus
• Suspension/expulsion from specific classes and/or from the College
• Disciplinary action up to, and including, termination of employment

Where findings that Sexual Misconduct has occurred, the College will endeavor to protect the Complainant from any subsequent harassment, discrimination, or reprisal, within the College’s jurisdiction. Where the findings are that the complaint was frivolous, vexatious or vindictive in nature, they may take appropriate disciplinary action against the Complainant. A copy of the Investigative Report and decisions will be placed in a confidential file maintained by the College for a period of five years. In addition to disciplinary outcomes the College may require further action including workshops and/or mediation for the employees/students in the learning or workplace environment affected by the complaint and/or investigation, changes to College practices/procedures that may be deemed to be discriminatory, or other proactive steps to ameliorate existing conditions.

Appeal

If the Complainant or Respondent feels that appropriate process was not followed or that this Policy was incorrectly applied, they may appeal the decisions of the College President to the College CEO. The appeal must be submitted in writing within ten (10) days of the decision being received by the Complainant/Respondent and must provide specific grounds for the appeal, describing how the Policy was incorrectly applied and/or due process was not followed. The appeal will deal with appropriateness of process or disciplinary decisions and will not reconsider the original complaint. If the College President’s decision results in disciplinary action against a College employee, that employee shall have access to appropriate College appeal processes.

Training and Education

The College will ensure that Sexual Misconduct education and training, including prevention, responding to disclosures, bystander intervention and making effective referrals to local community-based response services, is provided to senior managers, appointed Investigators and all potential first responders. The College will initiate and maintain a program to ensure that members of the College community are made aware of this Policy, are educated on the scope of Sexual Misconduct and that information and materials regarding sexual health, safety and community-based resources are displayed and made readily available to members of the campus community.

1. If the institution receives tuition from the student, or a person on behalf of the student, the institution will refund the student, or the person who paid on behalf of the student, the tuition that was paid in relation to the program in which the student is enrolled if:
   • the institution receives a notice of withdrawal from the student no later than seven days after the effective contract date and before the contract start date;
   • the student, or the student’s parent or legal guardian, signs the student enrolment contract seven days or less before the contract start date and the institution receives a notice of withdrawal from the student between the date the student, or the student’s parent or legal guardian, signed the student enrolment contract and the contract start date; or
   • the student does not attend a work experience component and the institution does not provide all of the hours of instruction of the work experience component within 30 days of the contract end date.
2. The institution will refund the tuition for the program and all related fees paid by the student or a person on behalf of the student enrolled in the program if the student is enrolled in the program without having met the admission requirements and did not misrepresent his or her knowledge or skills when applying for admission.
3. If a student does not attend any of the first 30% of the hours of instruction to be provided during the contract term, the institution may retain up to 50% of the tuition paid under the student enrolment contract unless the program is provided solely through distance education.
4. Unless the program is provided solely through distance education, if the institution receives a notice of withdrawal from a student:
   • more than seven days after the effective contract date and
     1. at least 30 days before the contract start date, the institution may retain up to 10% of the tuition due under the student enrolment contract, to a maximum of $1,000.
     2. less than 30 days before the contract start date, the institution may retain up to 20% of the tuition due under the student enrolment contract, to a maximum of $1,300.
   • after the contract start date
     1. and up to and including 10% of the hours of instruction to be provided during the contract term have been provided, the institution may retain up to 30% of the tuition due under the student enrolment contract.
     2. and after more than 10% but before 30% of the hours of instruction to be provided during the contract term have been provided, the institution may retain up to 50% of the tuition due under the student enrolment contract.

5. Unless the program is provided solely through distance education, if the institution provides a notice of dismissal to a student and the date the institution delivers the notice to the student is:
   • equal to or before 10% of the hours of instruction to be provided during the contract term have been provided, the institution may retain up to 30% of the tuition due under the student enrolment contract.
   • after 10% but before 30% of the hours of instruction to be provided during the contract term have been provided, the institution may retain up to 50% of the tuition due under the student enrolment contract.
6. If the institution provides the program solely through distance education and the institution receives a student’s notice of withdrawal or the institution delivers a notice of dismissal to the student and:
   • the student has completed and received an evaluation of his or her performance for up to 30% of the hours of instruction to be provided during the contract term, the institution may retain up to 30% of the tuition due under the student enrolment contract, or
   • the student has completed and received an evaluation of his or her performance for more than 30% but less than 50% of the program, the institution may retain up to 50% of the tuition due under the student enrolment contract.
7. The institution will refund fees charged for course materials paid for but not received if the student provides a notice of withdrawal to the institution or the institution provides a notice of dismissal to the student.
8. Refunds required under this policy will be paid to the student, or a person who paid the tuition or fees on behalf of the student, within 30 days:
   • of the date the institution receives a student’s notice of withdrawal,
   • of the date the institution provides a notice of dismissal to the student,
   • of the date that the registrar provides notice to the institution that the institution is not complying with section 1(c) or 2 of this policy, or
   • after the first 30% of the hours of instruction if section 3 of this policy applies.
9. If an international student delivers a copy of a refusal of a study permit to the institution, sections 1(a), 1(b), 4, 7,and 8 of this policy apply as if the copy of the refusal were a notice of withdrawal, unless:
   • the international student requests an additional letter of acceptance for the same program that was the subject of the refusal of a study permit, or
   • the program is provided solely through distance education.