Credibility of Witnesses

An important factor, which must be considered when evaluating evidence, is the credibility of its source – that is, the quality in a witness that renders their evidence worthy of belief. Some of these qualities are:

• Good reputation for directness and veracity;
• Intelligence;
• In a position to have knowledge of the circumstances;
• Good powers of observation and memory recall;
• Ability to describe events clearly and succinctly; and
• Disinterested position in relation to the matter in question (i.e. no vested interest).

Common sense enters into the assessment of a witness’ credibility – their evidence must make sense and seem reasonable to the ordinary person. Whether a witness is credible can have an enormous bearing on the value of their evidence, particularly as it might relate to evidence from other sources. The credibility of the witness may make their evidence determinative – even where the evidence is indirect or circumstantial.

The Right to Be Heard

There are two times during the investigation when the respondent should be given an opportunity to be heard: during the fact-finding phase and in response to the investigator’s decision.

Investigation Phase

Both the complainant and respondent should, independently, be given the opportunity to present their version of the facts to the investigator, identify witnesses to the investigator and submit any documentary evidence each feels would be useful to the investigation. They should also have an opportunity to review statements they have made to the investigator in order to confirm their accuracy. Likewise, a draft of the investigation report should be provided to each party for their review and feedback.^[7]

Other witnesses interviewed during the investigation process may request to have access to their own statements to verify their accuracy. The investigator may wish to have witnesses acknowledge (in writing) the accuracy of their statement.

Decision-Making Phase

Once an investigation has concluded, an organization (NIM or sport organization) will need to make a decision about whether to accept the investigative findings and, where the accepted investigative findings identify a violation of the UCCMS, issue an appropriate sanction. This post-investigation decision-making phase must also be procedurally fair with prior notice given to the complainant and respondent, and an opportunity for both parties to make submissions to the decision-maker. The right to make submissions may be formal or less formal depending on the seriousness of the alleged maltreatment and potential consequences. For example, where the alleged maltreatment would result in a lifetime suspension of a respondent, they should be given an oral hearing via teleconference, videoconference or in-person to present their submissions to the decision-maker.

Question: Should submissions during an investigation be in writing or done orally (in-person, by video conference or by teleconference)? 

The SDRCC Investigation Guidelines^[8] encourage investigators to use virtual meeting methods to conduct interviews. In the U.K., a body retained by sport organizations to conduct safe sport investigations (Sport Resolutions)^[9] recommends the use of written and signed witness statements during investigations. Where credibility is an issue, body movements, general demeanour and facial expressions can be important to assess credibility, making some form of face-to-face interaction useful. Similarly, in complex matters, engaging with a witness may allow more opportunity to clarify facts. The procedure selected may be a hybrid of written and oral components, such as the exchange of written submissions followed by a video or teleconference or in-person meeting that allows the respondent to answer questions or clarify issues raised by the investigator based on the written materials.

The Right to an Independent and Unbiased Investigator

Independence is often associated with institutional safeguards that allow investigators to be free from external pressures when making their decisions. Safeguards can include ensuring the neutrality in the appointment of the investigator and the absence of pre-existing professional or business relationships between the investigator and parties that could influence the autonomy of the investigative process. The SDRCC Investigation Guidelines^[10] address the independence of the investigator throughout the process:

• By avoiding situations where an investigator is a frequent investigator of maltreatment involving a particular sport organization;
• By ensuring a clear separation between investigators and arbitrators in terms of appointments and oversight,^[11] which is by an advisory committee led by an SDRCC board member unaffiliated with overseeing the arbitration services, and by establishing a clear separation between investigator and the administrative role of SDRCC so as to avoid any interference or apprehension of interference by SDRCC management.

Throughout the investigation process itself, a number of steps are taken to ensure continued independence and impartiality of the investigator:

• Parties do not participate in the appointment of the investigator; the SDRCC makes the appointment;
• An investigator must perform a conflict of interest check with the parties and sign a declaration of independence;
• If either party objects to the appointment, the investigator must step down;
• Investigators must comply with the SDRCC code of conduct for investigators;
• Investigators must report conflicts of interest and as they arise;
• In the event of a conflict of interest, the investigator must resign or seek the express permission from the relevant organization (e.g., NIM or sport organization) to continue; and,
• Parties may raise concerns about a lack of independence or impartiality of the investigator (however, concerns must be raised right away or a party will be deemed to have waived the right to object later).

An unbiased or impartial investigator, particularly one with decision-making authority, is a fundamental principle of procedural fairness. Investigators must be impartial, free from any conflict of interest, and must approach matters under investigation with an “open mind”. There are two types of bias: actual bias, and perceived or reasonably apprehended bias.

1. Actual bias exists where one is predisposed to decide a matter in one particular way over any other. Such a decision-maker has a “closed mind” and is unable to consider a perspective or consideration that differs from their own predeterminations. Actual bias often exists where a decision-maker has a direct interest in the outcome or has publicly favoured one outcome over another.
2. Perceived bias is not as clear-cut or obvious as actual bias and is often determined based on contextual factors that consider relationships between the decision-maker and affected persons or other factors that may exist. It is not the mere existence of a relationship, or presence of other factors, that creates the impartiality itself, but rather the extent to which the relationship or other factor influences, or is perceived to influence, the decision-maker. For perceived bias to exist, the relationship or other factor contributing to the apprehension must be consequential and influential.

Bias and conflict of interest are often used interchangeably. A conflict of interest occurs where a party is involved in multiple interests and serving one of those interests could involve simultaneously working against one of the other interests. The conflicting interest could involve any number of things including a financial interest, one’s reputation, a relationship, or access to knowledge of some sort. A person’s involvement in the vested interest raises a question of whether their actions, judgment or decision-making can be unbiased. The conflict is the situation; the bias is the actual or perceived prejudicial behaviour due to the situation. When such a situation occurs in the context of an investigation, the investigator should remove themselves and avoid any engagement in the matter.

For example, if the appointed investigator has a personal or business relationship with one of the parties, there could be the perception of bias in that the investigator may favour that party. As another example, where the investigator is being paid directly by the sport organization and the complaint is against the organization, there could be a perception that the investigator might favour the party paying the bill.^[12] Where an investigator has publicly commented on the situation being investigated, or a similar situation, and distinctly favoured a particular perspective, an actual bias may exist and the investigator should excuse themselves from the investigation.

The investigator must maintain an open mind through all phases of the investigation. The SDRCC adjudicator in McInnis^[13] (see the case study below – McInnis v. Athletics Canada) summed up the investigator’s role highlighting the impartial and unbiased approach that must be maintained:

“The role of an investigator is always to conduct an impartial investigation of the facts giving rise to the complaint. It is not the investigator’s role to prove a case. Investigators should enter the investigation with an open mind of ‘what does the evidence show occurred’ and should not try to prove the allegations and tailor the evidence to support their ‘theory of the case’. The only theory is what the evidence shows. The investigator should not make up their mind until the last witness is interviewed and the last document reviewed. Of course, as the evidence develops there is nothing improper in gathering corroborating evidence as long as anything that does not support a finding is given equal consideration.”

 

In Practice:
Bias on the Team

A national team coach is also the head coach of a university’s varsity team. A number of the coach’s varsity players have been members of the national team for several years and are vying for a spot on the current national team. The national team selection policy states that the national team coach and assistant coach will select a slate of players, which will then be reviewed and either confirmed or rejected by the National Team Committee, a committee made up of three members of the national sport organization.

An allegation of bias is made by a player who does not play on the varsity team but is seeking selection on the national team. The player is concerned that the national team coach will favour athletes from the varsity team.

Do you think this is an example of bias? Is it perceived bias or actual bias? What steps might you take to avoid bias?

The above scenario was the situation in the SDRCC case of Wilton v. Softball Canada.^[14] Wilton was an elite softball athlete vying for selection to Canada’s national softball team competing at the 2004 Summer Olympic Games. Based on an assessment of performance statistics and players’ strengths and weaknesses, Wilton was selected as an alternate by the national team coach. The decision was then reviewed and supported by only the chair of Softball Canada’s National Team Committee (NTC).

The adjudicator found that the coach was not biased but that the second part of the selection process wherein the NTC as a whole, not just the chair of the committee, was to review and either confirm or reject the selected players. The adjudicator ordered a meeting of the full NTC, including the athlete representative, to hear a presentation by the head coach of his proposed team selection and rationale for his recommendations.

This scenario is an example of how a situation that may present a conflict of interest can be structured to avoid it. The adjudicator found no compelling evidence that the national team coach would jeopardize the chances for success at the Olympic Team just to have more university team members on the national team. However, it was acknowledged that a coach who is more familiar with one player over another would choose the known player over a lesser-known player. Having the NTC oversee and review the selection and, in fact, have ultimate authority to make the selection was intentionally set up to counter this, and other possibilities related to a perceived possible conflict of interest.

In Practice:
Bias in the Organization

Two people are running for election to the position of president of a national sport organization. Person A is the current president and member of the Board of Directors of the organization. Person B is a member of the Board of Directors of an organization doing business with one of the provincial sport organization members of the national organization. The relationship could breach the national organization’s conflict of interest policy. Person B disputes any conflict. The current Board of Directors of the national organization has been asked to determine if Person B is eligible for election. Person A, the current president (and person running for re-election) recuses himself from the matter. The rest of the Board makes a determination that Person B is not eligible. In doing so, the Board ignores certain information provided to it by Person B.

Person B appeals the Board’s decision, alleging the Board is biased.

Is this perceived or actual bias and how might you avoid bias in this situation?

This above example was the situation in the SDRCC case of Sharara v. Table Tennis Canada.^[15]

The adjudicator clarified that the party alleging bias has the onus of proving the bias and the threshold for finding a real or perceived bias is high. Person B argued that because the members of the Board currently work with Person A and Person A is the only person to benefit should the Board of Directors find Person B ineligible to stand for election, the Board is thus in a conflict of interest between their allegiance to their current colleague and their duties as board members. The adjudicator found that such a relationship would not result in a conflict of interest in every case (otherwise, it would mean that anytime one Board member declared a conflict and recused themselves, the rest of the Board would be in a conflict of interest) but, in this case, the relationship considered in light of the Board’s decision to ignore information brought to its attention by Person B, gives rise to a reasonable apprehension of bias on the part of the Board.

The Right to Assistance

The right to legal counsel is not an absolute legal right. Nonetheless, it is prudent to allow the parties to designate someone to accompany them during the investigation, whether a friend, partner or legal counsel. During the investigation, this person does not speak on behalf of the party, but is there to lend moral support and assist the party in understanding the situation where necessary.^[16]

In cases where a party or a witness is under the age of majority in their province or territory of residence, a parent or legal guardian should be informed prior to an interview being conducted and the minor may be accompanied by a responsible adult during the interview.

The Right to a Reasoned Decision

A complainant and respondent have a right to a reasoned decision following an investigation. As noted above, this post-investigative submission would be made by the NIM or sport organization based on the outcome of the investigation. To assist the post-investigation decision-maker a final investigative report should present the findings of the investigation in an impartial and comprehensive manner, documenting the steps taken, the evidence evaluated and ultimately provide the decision-maker with the facts necessary to decide the matter. The report is the means by which the investigator communicates how and why certain findings of fact were made during the investigation, and shows the parties what evidence was considered and that the investigation was done in a fair and transparent manner. Where decisions are based on the findings of the investigation, the parties should have the opportunity to review and respond to the report.

Intersection with Criminal and Child Protection Proceedings

In Practice:
Coordinating Investigations

“Coordinating Investigations and Sharing Anti-Doping Information and Evidence” World Anti-Doping Agency, 2011 (PDF).

 

The World Anti-Doping Agency (WADA) released a report in 2011 that addressed how to coordinate investigations between a sport governing body and public authorities in the host country of a sport event or competition. They argued that these partnerships needed to be formed so as to utilize the investigative authority of law enforcement bodies to perform acts of search and seizure, surveillance, and compulsion of witness testimony. For example, in 2004, Italian law enforcement used wire taps, hidden cameras and listening devices to uncover an illegal plan by doctors in Florence to steal doping substances from their workplaces and sell them to athletes. By forming such partnerships, some serious anti-doping rule violations have since been exposed by the WADA.

The UCCMS represents a legal regime for addressing maltreatment in sport. As discussed in Chapter 6, this legal regime is contractual, similar to other aspects of the sport system, such as anti-doping rules. This private contractual regime operates in parallel to domestic laws created by government, including Canadian criminal laws and provincial or territorial child protection laws.

The parallel operation of these private and public legal regimes creates interesting dynamics. Historically, sport organizations have sought autonomy to regulate and govern their sports and members free from government control and intervention. Canadian governments have largely accepted the self-regulating status of sport organizations by not making laws to specifically regulate sport organizations or aspects of sport, with some notable exceptions relating to combative sports and concussion safety.^[17] While this lack of legislative action can be explained, in part, on Canada’s federal structure and the division of legislative powers between the federal and provincial or territorial governments (see Chapter 6), it also represents governments’ unwillingness to regulate the private affairs of sport.

This does not mean that domestic federal and provincial or territorial laws do not apply to sport. To the contrary, many aspects of sport are regulated by laws of general application that regulate many areas of society, such as those relating to human rights, occupational health and safety, and employment standards. However, despite the general application of these laws to sport, there can still be a tendency to view sport as insulated from or an exception to aspects of these laws.

One example of sport’s insulation or exceptionalism in relation to domestic laws involves doping matters. Doping in sport is primarily regulated by private anti-doping rules. These anti-doping rules are created at the international level by the World Anti-Doping Agency (WADA), and adopted and enforced by international and national sport organizations, including the International Olympic Committee (IOC), international sport federations, and national anti-doping organizations. As private entities within the sport system, WADA and other anti-doping organizations are protective of their autonomy and control over the regulation of doping in sport.^[18]

When national governments have attempted to use domestic laws to regulate doping in sport, the IOC and WADA have pushed back on this intervention. For example, during the 2006 Olympics in Turin, Italy, the IOC expressed concern about the application of Italian criminal laws to athletes caught doping and asked the Italian government to suspend its criminal laws for the duration of the Olympic Games. The Italian government refused, but a compromise was reached whereby the IOC was responsible for all doping control testing, and Italian authorities would only conduct searches of athlete residences if acting on “important information”.

The following two sections examine the duty to report allegations of maltreatment to police and child protection authorities, and the possibility of parallel investigations of alleged maltreatment conducted by sport authorities (NIM or ITP), the police, and child protection authorities.

Duty to Report

In the News:
Convicted Canadian Coaches

 

“Sex Offences Against Minors: Investigation Reveals More than 200 Canadian Coaches Convicted in Last 20 Years” by Lori Ward and Jamie Strashan, CBC, February 10, 2019.

 

A joint investigation by CBC News and Sports revealed that in the past 20 years at least 222 coaches who were involved in amateur sports in Canada have been convicted of sexual offences involving more than 600 victims under the age of 18 years. Another 34 accused coaches are pending before the courts. The CBC investigation is likely just the “tip of the iceberg,” and there are calls for “massive reform across the sport system.” These findings reinforce the fact that data has powerful potential to drive conversations and strengthen debates.

What other types of data should investigators track in order to learn more about patterns of abuse, so we can proactively work to prevent it by targeting those problem areas?

When an allegation of maltreatment in sport is reported to the NIM, or surfaces during the course of an investigation conducted by the NIM or an ITP, then it is necessary to consider whether there is a duty to report that allegation to authorities outside of sport that might have jurisdiction under domestic laws. In Canada, these relevant authorities are the police (in the case of criminal laws) and child protection authorities (in the case of provincial or territorial child protection laws).

Reporting to Police

There is no explicit duty to report alleged maltreatment to police under Canada’s criminal laws.^[21] However, in certain circumstances, a failure to report maltreatment could constitute a criminal offence under Canadian law, especially if combined with other acts or omissions. For example, section 21 of Canada’s Criminal Code provides that a person is a party to a criminal offence if they do or omit to do anything for the purposes of aiding another person to commit the offence. Section 21 also provides that a person is a party to a criminal offence if they abet (i.e. assist or encourage) another person to commit the offence.

As a result, where maltreatment under the UCCMS is also a criminal offence (see Table 7.1 above), then a person who knows about the maltreatment and allows it to continue to happen through their actions or inactions, could be made a party to the offence. This provision is unlikely to apply to a NIM or ITP investigator who is investigating an allegation of maltreatment in sport as they are taking active steps to verify an allegation (as opposed to ignoring it) and may recommend preliminary measures that limit a respondent’s interactions with a complainant and other sport participants pending the outcome of an investigation. However, section 21 of the Criminal Code could apply to sport participants (e.g. coaches, officials, administrators) who suspect maltreatment and take no steps to address or report it.

Unfortunately, the reference to “or” and “when applicable” in the above provision creates some ambiguity. It is not clear whether the UCCMS requirement is intended to create a standalone duty to report maltreatment to police and child protection services where the knowledge or a suspicion of maltreatment against a minor exists, or whether the requirement under the UCCMS is only triggered where there is a separate duty to report under other law. If the former interpretation is correct, then it is unclear why the phrase “when applicable” is used. If the latter interpretation is correct, then the provision is still confusing because, as mentioned above, there is no duty to report maltreatment to the police under federal criminal laws. The more likely interpretation is that the phrase is meant to qualify the duty to report to child protection authorities.

As discussed below, the duty to report under provincial or territorial child protection legislation varies by jurisdiction (and in many jurisdictions may not apply to maltreatment in sport). Nevertheless, the reference to “or” suggests that an adult participant could avoid disciplinary action under the UCCMS if they reported maltreatment against a minor participant to either the police or child protection authorities. It is unclear why reporting to both the police and child protection authorities is not required.

It is our recommendation that this section of the UCCMS be revised to clarify its application. Ideally, the UCCMS duty to report should not be limited to instances where the reporting is required under other laws. The duty to report should apply regardless of whether it is required under federal criminal laws or provincial or territorial child protection laws. If the enforcement authority receiving the report is not able to act on the information because it is outside of their jurisdiction (e.g. not a criminal offence), then the reporting errs on the side of caution in favour of preventing and addressing maltreatment in sport.

Reporting to Child Protection Authorities

Every province or territory in Canada has child protection legislation to safeguard children from abuse and neglect. Child protection authorities are given powers under this legislation to conduct investigations and make decisions about child protection and intervention. Despite this apparent breadth, aspects of the legislation and the work of child protection authorities are largely focused on preventing children from abuse and neglect in the home setting.

The existence of a legal duty to report alleged maltreatment to child protection authorities depends on where the alleged maltreatment took place due to different reporting requirements under provincial and territorial child protection legislation (see Table 7.2 below). In British Columbia, Alberta, Saskatchewan, Quebec, Newfoundland and Labrador, New Brunswick, Prince Edward Island, Yukon and Nunavut, a person’s duty to report maltreatment to child protection authorities is only triggered where the person suspects that the maltreatment is the result of an act or failure to act of a parent or legal guardian, and not third parties (such as athletes, coaches or administrators). As a result, if a person (such as a NIM or ITP investigator, or a sport administrator) has no reason to believe that the maltreatment of a child athlete is linked to an act or failure to act of a parent or guardian, then there would be no duty to report the alleged maltreatment to child protection authorities in these provinces and territories.

Table 7.2 Summary of Duty to Report under Provincial/Territorial (P/T) Child Welfare Legislation

In the News:
Philadelphia Review Model

“Ottawa Police Latest to Adopt the Philadelphia Case Review Model for Reviewing Unfounded Rape Cases,” Women’s Law Project, Aug. 3, 2017.

 

In 2017, Ottawa police replicated the “Philadelphia Case Review Model” as an initiative towards better addressing cases of sexual assault in the city. This model is a well-known best practice for handling complaints of rape and sexual assault, and has even been called the “gold standard in policy accountability.”

Parallel Investigations

An investigation into sport maltreatment could be commenced by the police, a child protection authority, or both, following their receipt of a complaint or report of alleged maltreatment. However, what happens when such an investigation coincides with a parallel investigation being planned or conducted by the NIM or ITP? Can the different investigations proceed in parallel or should the NIM or ITP investigation be deferred pending the outcome of the police or child protection authority investigation? Is one investigation more important or time-sensitive than the other? Should parallel investigations be avoided to ensure that one investigation doesn’t interfere or conflict with the other?

Some insight into these questions can be obtained from international comparators. In the United Kingdom, it is recommended that investigations into sport maltreatment conducted by sport organizations (or ITPs retained by sport organizations) be deferred until the completion of investigations conducted by statutory enforcement authorities, such as the police and child protection authorities.^[23] In contrast, in the United States, an investigation into sport maltreatment conducted by the Center for SafeSport is not automatically impacted by parallel criminal investigations. Instead, the Center may contact the criminal law enforcement agency to discuss the status of their investigation and, at request of the agency, the Center may delay its investigation until the evidence-gathering phase of the criminal investigation has ended.^[24] Importantly, the Center does not propose to defer its investigation pending the outcome of criminal charges or proceedings.

It is our recommendation that the NIM (and ITPs) follow the U.S. SafeSport model when investigating alleged maltreatment while parallel investigations conducted by the police or child protection authorities are underway. This recommendation is based on the following three considerations:

1. Preserving evidence;
2. Enabling timely information sharing; and
3. The different standards of proof that might apply.

1. Preserving Evidence

Investigations of alleged maltreatment are likely to involve verbal recollections of events from the complainant, respondent and witnesses that may fade over time. To preserve the freshness of this evidence in order to make findings of fact and fairly assess credibility, it is important that an investigation not be unduly delayed.

2. Enabling Timely Information Sharing

In the sport maltreatment context, both the NIM/ITP and other investigative bodies (police, child protection authority) will bring a certain type of expertise to an investigation. One investigator may be able to obtain information or have particular insight regarding the information they have gathered that another investigator may not, and vice versa. As a result, subject to applicable privacy laws^[25] and constitutional limits,^[26] parallel investigations can allow investigative bodies to share, in a timely manner, the information that they receive to assist each other’s investigation. For example, the U.S. Center for SafeSport will ask a criminal law enforcement agency whether any information obtained by that agency can be disclosed to the Center to assist with the Center’s investigation, and the Center may, in turn, provide some or all of its case information, documentation or evidence to the law enforcement agency.^[27]

3. Standards of Proof

This final consideration relates to a parallel criminal investigation. The purpose of a criminal investigation is to gather evidence to determine whether a criminal offence has been committed. In order for the investigation to lead to a criminal charge and subsequent conviction in court, the evidence gathered must prove that a person committed the criminal offence beyond a reasonable doubt. This threshold is known as a standard of proof. In contrast, in the context of the UCCMS process, the standard of proof will be much lower. The threshold is whether it is more likely than not that a respondent violated the UCCMS (known as a balance of probabilities). Figure 7.3 below provides a visual representation of these standards of proof.

The following figure displays the standards of a “balance of probabilities” and “beyond a reasonable doubt” as partially filled glasses of water. The water represents the evidence supporting the existence of a fact and the unfilled portion represents doubt about the existence of the fact. This doubt can arise due to gaps in the supporting evidence or contradictory evidence.

Figure 7.3 Standards of Proof Illustrated

These different standards of proof impact how an investigation may be conducted since the investigator is considering what threshold needs to be met to prove that a particular fact occurred. For example, while a NIM or ITP investigator may be satisfied that maltreatment occurred based on interviews with a complainant, a respondent and witnesses, a criminal investigator may require supporting documentary or physical evidence before recommending that criminal charges be pursued. This difference in the investigative approach means that there may not be complete overlap between the investigations conducted by the NIM/ITP and the police and that both investigations can proceed in parallel.

The following audio recording is a firsthand dialogue of a person falsely accused of sexual harassment. As you listen, follow along as pieces of the investigation unfold and as the implications of the allegations take hold.

Listen to “The Accusation ” by The Daily on Apple Podcasts (approx. 52 minutes). Find additional material, including a link to the print version in the New York Times, on the episode website.

The difference in standards of proof also means that, if there is a desire to sequence the investigations, as opposed to having them operate in parallel, then the NIM/ITP investigation should not be deferred beyond the evidence-gathering phase of the criminal investigation. Waiting for the outcome of the criminal process (investigation, laying of charges, trial) will not assist the NIM/ITP investigation (or later stages of the UCCMS process) as a finding that no criminal offence was committed (whether following an investigation or trial) is not an indicator that maltreatment in violation of the UCCMS did not occur. In other words, the criminal process does not dictate how the UCCMS process should unfold in terms of findings of maltreatment or consequences for maltreatment.

Case Study:
Review a Harassment Complaint

 

“Athletics Canada Upholds Lifetime Ban of Ottawa Track Coach” CBC News, July 9, 2020.

As you read through this case, consider the process used to investigate a complaint of harassment made against a coach. The investigation process itself was seriously flawed and the investigator showed bias in the writing of the investigative report. Can you identify the flaws? Do you think the decision was fair?

The Facts

Andy McInnis was a successful coach with the Ottawa Lions Track & Field Club (“OLTFC”). A complaint involving harassment and sexual harassment was filed with the OLTFC against McInnis. The OLTFC hired an investigator to review the complaint. Concerns were subsequently brought forward that the OLTFC was not conducting an impartial investigation and a further complaint of harassment was filed against McInnis by another party (“Eliza”). Athletics Canada assumed responsibility for investigating this second complaint of harassment, appointed an investigator and suspended the OLTFC investigation. The OLTFC investigation was subsequently re-commenced, running in parallel to the one authorized by Athletics Canada.

At the end of the investigation, the Athletics Canada Investigator declared two of the complaints brought by Eliza to be founded and seven of the complaints brought by the original complainant to the OLTFC to be founded. The OLTFC Investigator of the original complaint dismissed all but one of the original complaints as being unfounded on the basis of a lack of evidence. Based on the findings and recommendations of the Athletics Canada Investigator, an Athletics Canada Commissioner rendered a lifetime suspension of McInnis from Athletics Canada.

The Issues

McInnis appealed the Athletics Canada decision. The appeal raised two critical questions:

1. Did the investigation and decision-making process follow principles of procedural fairness?
2. Was there bias involved in the investigation?

On the question of procedural fairness, McInnis argued that he had not received sufficient information to fully understand the case to be met and to make a full and accurate response, and that the person authorized to make the final decision in the case (the Athletics Canada Commissioner) did not do so, wrongly deferring to the recommendations of the Investigator. Specifically, McInnis maintained that:

• He had not received details of the specific complaints, including the specific policy sections he was alleged to have breached, and detailed information as required under Athletics Canada’s rules and required by the principles of procedural fairness, all of which were essential for him to make a full response;

• He was not provided with all of the evidence, including recordings of interviews with the witnesses and complainants; he received only a copy of paraphrased allegations, many of which were out of context;

• He was not given an opportunity to make his case – either as part of the investigation or as part of a hearing, either in-person or by conference call; and

• By simply accepting the outcome and recommendations contained in the Investigator’s report, the Athletics Canada Commissioner wrongly delegated his authority to make the final decision to the Investigator and, in so doing, did not fully and fairly consider McInnis’s case in accordance with the principles of fairness but deferred to the Investigator.

On the question of bias, McInnis argued that the Investigator’s report gave rise to a reasonable apprehension of bias on the part of the Investigator that coloured the Commissioner’s final decision. Specifically, he maintained that:

• The Investigator exceeded his authority and mandate and became an advocate for the complaints as evidenced by the inclusion of “victim impact statements”, which were of little probative value to the investigation itself;
• The Investigator used inflammatory and prejudicial language in the report such as the title of the Report – “In Plain View: The Tolerance of Sexual Misconduct at the Ottawa Lions Club,” in subheadings to the report, including: “Emulating the Catholic Church”, “Andy McInnis the Teetotaller”, “Massage Me Not”, “The Womanizer” and “Athletics Canada Ruined the Whole Thing!”, and in a number of highly prejudicial statements;
• The manner of interviewing wherein the original complainant was allowed to read from and refer to a previously written statement;
• The Investigator attempted to discredit and undermine witness evidence given on behalf of McInnis; and
• The investigation conflated, and considered as one, complaints against a third party with those against McInnis.

The Decision

The SDRCC Adjudicator found that McInnis had been denied procedural fairness during the investigation and decision-making phases of the process. He emphasized that while Athletics Canada is entitled to some deference in selecting details of the investigatory process, the serious impact a decision could have on McInnis’s ability to continue with his livelihood demanded a significant degree of procedural protection and a fair process.

The SDRCC Adjudicator found that the right to procedural fairness was not as broad as that argued by McInnis but Athletics Canada failed to provide him with a fair process. The Adjudicator pointed to several errors:

• The lack of time that McInnis had to review and respond to the Investigator’s report (only 10 days) was unreasonable given the seriousness of the matter and the repercussions of any decision based on the investigative report;

• While the ultimate decision-maker (in this case the Commissioner of Athletics Canada) had discretion to determine the nature and format of any hearing, such determination must be consistent with the duty of fairness owed to McInnis. In this case, more than the submission of a written statement was necessary. McInnis should have been given the opportunity to test the evidence against him and to question the complaints that were being relied upon to determine his guilt or innocence.

However, the SDRCC Adjudicator rejected a number of the procedural protections sought by McInnis. For example, the Adjudicator noted that an investigation is different than a hearing and what is owed to a respondent in an investigation from a procedural perspective is less formal. The duty of an investigator is to put to the respondent any and all allegations on which the investigator will make findings. Prior to any interview with the investigator, the respondent is not owed details of the allegations relating to the complaints or full reports.

The Adjudicator also concluded that the investigation in this case was conducted in a biased manner. He raised the following points as supporting a finding of actual bias.

• The use of language in the report was often inflammatory, highly editorial and prejudicial serving no purpose other than to infer McInnis’s guilt;

• Allegations against McInnis were conflated with those against a third party, treating them as one and the same. Allegations against the third party were separate, not part of the complaint and should not have been brought into the investigation. They properly should have been part of another separate investigation conducted by another investigator;

• Bringing in commentary and issues outside the scope of the investigation that had the effect of colouring the investigation;

• Making unsupported findings and completely ignoring facts that contradicted McInnis’s guilt; and

• Because the final decision made by the Commissioner of Athletics Canada was based solely on the investigative report and did not consider at all the OLTCF’s parallel investigative report that produced contrary findings, the bias of the investigator’s findings and conclusions resulted in a biased post-investigation decision.

As part of his judgment, the SDRCC Adjudicator included a non-exhaustive list of elements characteristic of a good and procedurally fair investigation, including:^[28]

• Follow the rules of the governing body to determine whether the complaint must be disclosed to the respondent;
• Ensure that the respondent be made fully aware of the complaint and contents;
• Review and carefully consider all evidence (both inculpatory and exculpatory);
• Interview all witnesses put forward by both sides unless there are compelling reasons not to do so. If an investigator chooses not to interview someone this should be identified in the final report and reasons given for why that decision was made;
• There is not an absolute right to know the names of witnesses or have access to their witness statements, but respondents should be given accurate information of what is being alleged (i.e. place, time and occurrence);
• Allow the respondent to respond to all allegations and/or evidence that will be relevant to the investigation’s findings;
• Allow the complainant to provide further evidence if complaint not founded;
• Allow and consider written submissions disputing findings;
• Give ample time for both the respondent and the complainant to make their cases;
• Provide a final report that is responsive to the original mandate letter and does not go out of its way to answer more than has been set out in the mandate;
• Provide a final report that presents its findings in an impartial manner that is free of hyperbole and editorializing;
• Final investigation reports should be written in a way that the findings against one respondent are separate from unique claims against another where multiple respondents are being investigated on separate issues;
• It is appropriate for investigators to make recommendations regarding policy and procedure and systemic issues, but not to recommend sanctions. It is not the role of the investigator to advocate for an appropriate penalty or sanction. That is the discretion of a post-investigation decision-maker; and
• Carry out an investigation and produce a final report in a timely manner.

Further Research

Key Terms 

Canadian Safe Sport Program. (2020). Sport Information Resource Centre: Universal Code of Conduct to Prevent and Address Maltreatment in Sport (UCCMS),(5)1, 1-16. https://sirc.ca/wp-content/uploads/2020/01/UCCMS-v5.1-FINAL-Eng.pdf

CBC News. (2020, June 9). Athletics Canada upholds lifetime ban of Ottawa track coach. Retrieved December 21, 2021, from https://www.cbc.ca/news/canada/ottawa/andy-mcinnis-ban-1.5604921

Chamberlain, C., Quinlan, C., & Wernick, S. (n.d.). Practical guide to undertaking safeguarding investigations in sport. Sport Resolutions. http://www.sportresolutions.com/images/uploads/files/2021_NSP_Investigation_Guide_1.pdf

Child and Family Services Act, S.N.W.T. 1997, c 13

Child and Youth Care and Protection Act, SNL 2010, c C-12.2

Child Protection Act, RSPEI 1988, c C-5.1

Child, Family and Community Service Act, RSBC 1996, c 46

Child, Youth and Family Enhancement Act, RSA 2000, c C-12

Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1

Children and Family Services Act, SNS 1990, c 5

Children’s Act, c 31

Combative Sports Act, 2019, S.O. 2019, c. 7, Sched. 9

Family Services Act, SNB 1980, c F-2.2

Goldman, T. (2005, December 8). Italy’s strict anti-doping laws clash with Olympic rules. National Public Radio. Retrieved December 5, 2021, from https://www.npr.org/templates/story/story.php?storyId=5044688

Legislative Assembly of Ontario. (2018). An act to enact Rowan’s Law (concussion safety), 2018 and to amend the Education Act. https://www.ola.org/sites/default/files/node-files/bill/document/pdf/2018/2018-03/bill—text-41-2-en-b193ra_e.pdf

McInnis v. Athletics Canada, SDRCC (2020), No. 19-0401

McLaren Global Sport Solutions. (2020). Aiming high: Independent approaches to administer The Universal Code of Conduct to Prevent and Address Maltreatment in Sport in Canada, final report. http://sirc.ca/wp-content/uploads/2020/12/MGSS-Report-on-Independent-Approaches-December-2020.pdf

Paterson v. Skate Canada, (2004), 373 A.R. 81 (QB.)

Pound, R. (2002). The World Anti-Doping Agency: An experiment in international law. International Sports Law Review, 2.

Prime, K. (Producer). (2020, July 26). The Sunday read: ‘The accusation’ [Audio podcast episode]. In The Daily. The New York Times Company. https://podcasts.apple.com/ca/podcast/the-daily/id1200361736?i=1000486163535

R. v. Kates, Ontario District Court – York Judicial District, [1987] O.J. No. 2032.

Rowan’s Law (Concussion Safety), 2018, S.O. 2018, c. 1: https://www.ontario.ca/laws/statute/18r01

Sharara v. Table Tennis Canada, SDRCC (2019), No. 19-0376.

Sport Dispute Resolution Centre of Canada (SDRCC). (2018). Investigation unit: Investigation guidelines. http://www.crdsc-sdrcc.ca/eng/documents/Investigations-Investigation_Guidelines_EN_Final.pdf

Sport Law. (n.d.) Maintaining ‘fairness’ in investigations and hearings. Retrieved December 21, 2021, from https://sportlaw.ca/maintaining-fairness-in-investigations-and-hearings/

Sport Resolutions. (n.d.). https://www.sportresolutions.com

The Child and Family Services Act, C.C.S.M. c. C80The Child and Family Services Act, SS 1989-90, c C-7.2

U. S. Center for SafeSport. (n.d.). SafeSport code. Retrieved December 5, 2021, from https://uscenterforsafesport.org/response-and-resolution/safesport-code/ 

World Anti-Doping Agency (WADA). (n.d.). Retrieved December 21, 2021, from https://www.wada-ama.org

WADA. (2001, May). Coordinating investigations and sharing anti-doping information and evidence. https://www.wada-ama.org/sites/default/files/resources/files/WADA_Investigations_Guidelines_May2011_EN.pdf

WADA. (2020, March 12). WADA calls on US Senate to consider widely held concerns about Rodchenkov Act. Retrieved December 5, 2021, from https://www.wada-ama.org/en/media/news/2020-03/wada-calls-on-us-senate-to-consider-widely-held-concerns-about-rodchenkov-act

Ward, L. & Strashin, J. (2019, February 10). Sex offences against minors: Investigation reveals more than 200 Canadian coaches convicted in last 20 years. CBC News. Retrieved December 21, 2021, from https://www.cbc.ca/sports/amateur-sports-coaches-sexual-offences-minors-1.5006609

Wilton v. Softball Canada, SDRCC (2004), No. 04-0015.

Women’s Law Project. (2017, August 3).Ottawa police latest to adopt the “Philadelphia Case Review Model” for reviewing unfounded rape cases. Retrieved December 5, 2021, from www.womenslawproject.org/2017/08/03/ottawa-police-latest-to-adopt-the-philadelphia-case-review-model-for-reviewing-unfounded-rape-cases/

Youth Protection Act, CQLR c P-34.1