Mpega v. Universite de Moncton (2001)
Mpega v. Universite de Moncton 2001 New Brunswick Court of Appeal (No. 50/99/CA)
A student filed a complaint of sexual assault against a fellow student with both the police and the university. Both bodies conducted investigations. However, whereas the police decided not to press charges, the university found the student guilty of sexual assault.
A investigatory report, submitted to the President, made a series of recommendations, including the imposition of a no-contact order, an obligation upon the respondent to write a research paper on sexual harassment and to promote anti-harassment across campus. The President, instead, expelled the student. His decision was supported by the Senate Appeal Committee and by the Court.
- Does the sexual harassment policy include off-campus incidents of sexual harassment?
- Does a single act of sexual assault amount to sexual harassment ?
- Did the University have the jurisdiction to investigate a case of sexual assault that had been dismissed by the police?
- Although the university policy on sexual harassment did not explicitly include off-campus harassment, it did not explicitly exclude it either. It stated that its goal was to provide a harassment-free working/living/learning environment for its community members. Off-campus harassment negatively by one community member towards another negatively affects the on-campus environment of the offended party and thereby constitutes a violation of sexual harassment policy.
- The judge agreed that a single act of sexual assault does not constitute sexual harassment in so much as the latter is defined, in part, by its repetitive and persistent nature. He distingued between sexual harassment between equals (fellow students or coworkers), which was, by nature, repetitive and persistent in nature and sexual harassment involving a power imbalance (supervisor/supervisee or professor/student) which could be limited to a single incident if it results in discriminatory or harmful effects
- Sexual assault is a federal offense. By investigating this case, and imposing a penality based on the investigative report, the University trenched on the federal legislative jurisdiction in matters of criminal law. This resulted in harm to the appellant, because the university used the balance of probabilities approach rather that the rules of evidence (p[roof beyond a reasonable doubt) to condemn a person who had been cleared by the police
The judge ordered the University to quash its decision to expel the student