Canada: Bungled Jian Ghomeshi Investigation Playing Out At Taxpayers’ Expense

Last Updated: November 25 2014
Article by Howard Levitt

Publication: Financial Post

Two bungled sexual harassment investigations — the CBC versus Jian Ghomeshi and inside the federal Liberal party — are both playing out in the public eye at taxpayer expense. In both cases, we taxpayers are getting awfully paltry "bang for our buck," since both investigations are already being handled abysmally and have a strong likelihood of coming up short.

The Ghomeshi story is morphing from concern about the host's conduct into evolving disquiet as to whether his behaviour was covered up by CBC management, and how pervasive the culture of harassment may be at the CBC.

If, as is increasingly alleged (and as I have personally been told by one complainant), management took no action after being informed of Ghomeshi's misconduct, there could not only be sanctions by the Canadian Human Rights Commission but significant negligence lawsuits from victimized women both against CBC managers and the corporation itself.

Damages for negligence can be dramatically higher than in dismissal cases, amounting, in extreme cases, to income for the rest of a complainant's presumed working life (compared to the 24-month effective limit for wrongful dismissal).

The CBC conducting its own investigation is like putting a fox in charge of solving an abused-chicken case.

The federal government should be the one investigating its Crown corporation, letting chips fall where they may. Unlike the CBC, the government has no ostensible interest, other than protecting taxpayers and CBC employees. Unlike the CBC, it has no institutional bias that would favour a whitewash. Even if the investigation by the CBC into its own misconduct were conducted honestly, Canadians would naturally be suspicious of a cover-up.

The CBC has strong incentives to see that incriminating facts never come to public light. This investigation unfortunately has the appearance of being designed with that very resistance in mind. Though it is ostensibly a publicly owned institution, the CBC has made it clear that the investigator's specific findings will never be revealed and all the public will be permitted to know is the recommendations for improving the corporate work environment. According to CBC spokesman Chuck Thompson, the CBC doesn't want to "compromise the confidentiality we promised any current or former employee that may come forward."

This is nonsense. No sensitive identities need be compromised as long as pseudonyms are used ("Jane Doe", "Complainants X, Y and Z") and identifying details omitted. That the investigation's scope is narrowed to only the two shows hosted by Ghomeshi and not systematic problems across the organization can only heighten suspicions about a corporate whitewash. The CBC is a public institution; the public has an interest in how it is being managed.

But if the CBC is going to proceed with investigating itself, it should at least make it appear unbiased and transparent. It has done neither. As National Post columnist Robyn Urback pointed out, the CBC appointed an investigator who has actually worked previously with the broadcaster, including at least one live web chat.

As Urback put it, "There's no shortage of competent, experienced lawyers in Canada, who also happen to have no connection — past or present — to the CBC. Those people should be first in line to oversee the Ghomeshi investigation, not someone from the CBC's own rolodex."

I cannot personally attest, one way or the other, to Janice Rubin's skill as an investigator — she certainly has experience in that area, as her firm's practice has changed over the years from focusing on dismissal law into more workplace investigations. Still, CBC should have made an appointment that did not so readily invite the perception of being closer to one side than the other. I am not suggesting that would be a fair impression here, but the mere perception of bias is critical. I make no specific comment on the investigator in this instance, but generally, people don't bite the hand that feeds them.

"It would be shocking for any private company to act as recklessly as Trudeau has in response to these sexual harassment claims"

When private companies face these kinds of crises, they are accountable to their stakeholders; ironically, we're seeing public institutions acting as if they have accountability only to themselves. The same is true for the Liberal party, where Justin Trudeau appears determined to prove his critics correct that he is "out of his depth" in the way he is playing politics with the serious matter of sexual harassment allegations within his party.

There is nothing more fundamental in Canadian law than "audi alteram partem," the right to hear the case against you and to respond. The two MPs that Trudeau so unceremoniously suspended, in light of harassment accusations, were denied even that fundamental right. They have stated they were not even told what the accusations were, let alone given a chance to address them.

It would be shocking for any private company to act as recklessly as Trudeau has in response to these sexual harassment claims. Suspending a male accused of harassment — one who remains adamant that he is innocent — while denying him the right to know exactly what he is being accused of, and then issuing a press release publicly denouncing the man: these are political gestures that have grievous implications for someone's public reputation and family life. The punitive damages and judicial condemnation against a company for such an irresponsible scorched-earth campaign would be staggering. In the workplace and under the Human Rights Act, the focus is on education and resolution, not punitive measures and public shaming.

What is even more troubling about Trudeau's conduct is the standard of proof and process that he followed. He has insisted on giving accusers the "benefit of the doubt." This turns more than a century of Canadian jurisprudence on its head. It is also contrary to the Canadian Human Rights Act itself. The onus of proof legally is on an accuser, not the accused. There is still a presumption of innocence in Canadian law. Trudeau's pronouncement fundamentally violates the rights of any accused and incentivizes frivolous or "grudge" grievances from individuals who will then know that their complaint will be deemed to be accurate without the untidy necessity of actual proof.

I suspect these fundamental mistakes are a function of timing — and panic. After the shock of the Ghomeshi allegations, Trudeau wants to posture in a way that demonstrates his solidarity with any woman who claims to be harassed. Like the CBC, Trudeau is willing to do it in a way that runs roughshod over the rights of others. Worse than the CBC, he seems prepared also to put his own political priorities ahead of the fundamental principles of Canadian justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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