May 30, 2021

CLE’s Self-governing professions – Rebecca Durcan and Lisa Fong on developments on sexual misconduct and re-envisioning regulatory practices

Administrative Law
Inquiry and Investigations
Professional Regulation

To ensure that regulatory authorities have the tools to address sexual misconduct by professionals — and to ensure that such tools are deployed — legislatures increasingly implemented statutory measures aimed at sexual misconduct. Rebecca will start the fourth session of the course by talking about legislative amendments that have occurred across Canada over the last few years which are aimed at specific issues that arise in sexual misconduct matters. Examples of recent legislative amendments include,

  • to address the stress and pressure of the regulatory processes, complainants can access funding for therapy and counselling;
  • mandatory penalties for both sexual abuse and sexual misconduct, including revocation of licence, and limited or no reinstatement;
  • mandatory training for decision-makers on such matters as myths and stereotypes about how victims may experience and react to sexual misconduct.

Lisa will discuss the caselaw on wrongful evidential inferences based on myths and stereotypes about how victims may respond and behave after a sexual assault. In the last few years, courts and tribunals have begun to delineate the impermissible assumptions made about victims, including

  • that women who drink, or use drugs, or are sex workers, or who are Indigenous, are more likely to have consented to sexual contact and are not credible;
  • women who do not consent to sex will protest, physically resist, or attempt to flee; and
  • women who were sexually assaulted will behave in a particular way, such as avoiding the perpetrator and reporting an incident immediately.

Despite cases prohibiting impermissible reasoning, myths and stereotypes about victims continue to taint assessments of victim credibility. Regulators must continue to guard against impermissible reasoning in its adjudications and throughout their regulatory processes.

Rebecca is a partner at Steineke Maciura Leblanc in Toronto and Lisa C. Fong, QC is a partner at Ng, Ariss Fong, Lawyers. Rebecca is a supermom to her three young sons and because she just can’t resist stylish gear, runs marathons (yes, that’s right – 26 miles). Lisa is likewise a supermom to her two cats and her scooter can only go 22 miles without recharging, but she could walk the last 4 miles.

Come join us! The agenda and registration for the course is available here: Self-Governing Professions 2021 (CLE)