In previous blog posts, I’ve written about Ontario’s Bill 132, the Sexual Violence and Harassment Plan Act which received Royal Assent on March 8, 2016. On May 19, 2016, British Columbia’s Sexual Violence and Misconduct Policy Act (the “Act”), received Royal Assent, making British Columbia the second Canadian province to pass legislation requiring mandatory policies and procedures regarding sexual assault and sexual violence on post-secondary campuses.

The Act is known as Bill 23 and it originated out of a private member’s bill from British Columbia MLA  Andrew Weaver. Mr. Weaver is the leader of the Green Party in British Columbia and is the only Green Party member in the legislature of British Columbia. Mr. Weaver indicated that the Act builds upon his private member’s bill and Ontario’s Bill 132.

That Bill 23 has become law is very unusual because most private member’s bills in Canada do not even undergo debate, let alone pass readings in the legislature and then receive Royal Asset. However, it appears that British Columbia Premier Christy Clark and her cabinet felt that the subject matter of the Act was important enough to move the bill forward.

The Act defines “sexual misconduct” to include sexual assault, sexual exploitation, sexual 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, and the threat to commit an act of sexual misconduct.

On or before May 18, 2017, each public post-secondary institution in BC must establish and implement a sexual misconduct policy that addresses sexual misconduct, including sexual misconduct prevention and responses to sexual misconduct. The sexual misconduct policy must also set out procedures for:

(i) making a complaint of sexual misconduct involving a student;

(ii) making a report of sexual misconduct involving a student;

(iii) responding to a complaint of sexual misconduct involving a student; and

(iv) responding to a report of sexual misconduct involving a student.

The Act requires that the post-secondary institution consult with students and with prescribed persons or prescribed classes of persons, if any, when the post-secondary institution establishes its first sexual misconduct policy and when it reviews the policy. Once the policy is established it must then be made available on the internet on a site maintained by, or on behalf of, the post-secondary institution.

There are 28 universities, institutes of technology, and colleges in British Columbia that are affected by Bill 23 and which must create and implement a sexual misconduct policy. A significant amount of work will be required in order to be compliant with the Act, and as such, some of these institutions have already begun working on process and policies.

The Act is a response to a number of issues that have arisen on campuses in BC in recent years but does not yet provide clear guidance on all aspects of the policy and procedures. Among other issues, the institutions will have to determine:

• Procedures for making a complaint including:

a) who the complaint or report will be made to,

b) what information will be shared with the parties; and

c) what the penalties will be for any breaches of the procedures or policy.

• How to handle complaints or reports that are determined to be frivolous or vexatious
• How to proceed if both parties are not members of the institution’s community.

Andrea Lowes

About the Author: Toronto Employment Lawyer Andrea Lowes conducts workplace investigations into allegations of harassment, bullying, poisoned work environments, and other problematic workplace behaviour. Andrea also assists her clients by providing workplace investigation and human rights training to staff at all levels. Andrea’s practice also includes workplace assessments and reviews.