A former McGill University student, accused of sexual assault by a fellow student, has won a first step in court. The Superior Court of Quebec ordered, in a judgment made public Friday, to unseal a report qualifying the credibility of the victim.
Declan McCool is accused of having had non-consensual sex with the victim, after a drunken evening at Café Campus. The facts took place twice, on the night of February 25 to 26, 2020, then the next morning, when they woke up.
In November 2020, the student launched a $1.5 million lawsuit against McGill University, two student associations and three of their members, the newspaper McGill Daily and three of its reporters, and the student behind the anonymous whistleblower, claiming that her reputation has been “tarnished beyond repair”.
He claims to have been the victim of irregularities in the process put in place by the student associations of the establishment to investigate sexual violence, in addition to having suffered a breach of confidentiality.
Me Morales, one of Mr. McCool’s lawyers, does not question the importance of anonymous whistleblowing, but the “abuses” that can result from it. “I think everything has to be balanced. The record showed that the system [anonyme] worked to protect victims, but any system is susceptible to abuse. And when a system is abused, there must be accountability. »
Let’s remember the facts. In March 2020, an investigation was initiated by the Engineering Students’ Association of McGill University (EUS), and Mr. McCool was notified that a complaint had been filed against him. But “no details on the complaint are provided to him”, even before his defense before the inquiry committee.
On April 2, 2020, the victim’s complaint was accepted, and Declan McCool was excluded from any event organized by McGill student associations where alcohol could be consumed.
The judgment, which was to remain confidential, leaked eight hours later in the student newspaper McGill Daily. The victim calls anonymously for a sanction on the part of the Student Association of McGill University (AEUM), of which his alleged attacker is the vice-president.
“Story Control”
The case becomes public, and that’s when “everything goes into a spin”, comments Rachel Chagnon, professor in the Department of Legal Sciences at the University of Quebec in Montreal.
On April 22, 2020, the student of the Faculty of Arts of the establishment appealed the decision of the EUS. The association then asks an independent judge, Ms.e Lacroix, to “review the decision of the inquiry committee” and decide whether Mr. McCool’s appeal should be accepted.
The Lacroix report concludes that “it is more likely than not that Mr. McCool did not commit sexual violence against the complainant” and indicates that “the initial investigation prevented Mr. McCool from presenting a complete defence.
Since then, Mr. McCool’s lawyers have been trying to make the report public so that they can refer to it during the trial. A request that has just been approved by the Superior Court of Quebec.
“For him, this is excellent news, says M.me Chagnon. We have completely reversed the process. Now it’s Mr. McCool, the victim. The victim has lost control of the narrative, and that’s unfortunate. »
Contacted by The dutyMe Felipe Morales, one of Mr. McCool’s lawyers, said he was “very happy” with the Superior Court’s decision. “He is a young man for whom we had no shame, no reservations about destroying his name publicly, without any verification being made. We believe that it is very important that this debate takes place in the public space […] so that Declan McCool can find justice. »
Now Mr. McCool is the victim. The victim has lost control of the narrative, and that’s unfortunate.
If the Lacroix report “does not help the cause of the victim”, we cannot therefore consider that Mr. McCool did not commit the acts of which he is accused, specifies Ms.me Chagnon. Pronouncing a judgment, “it is not the role of the lawyer [qui a été mandatée]. She is there to say whether the processes have been followed correctly”.
“The heart of Mr. McCool’s claims is not the existence or not of the aggression, it’s all that happened around it, explains the professor. The reason we are getting where we are with the report, which is very harmful for the victim, is his decision to publish in the student newspaper, which the judge interpreted as even a partial renunciation of the on the part of the victim to maintain confidentiality. »
“When this young woman lodges a complaint with the EUS, she goes to their forum. But from the moment you enter into the context of a defamation claim, the rules of the game are no longer the same. The person has a reasonable right of access to anything that can support their case. It shows a bit where we are in the various legal processes that are consistent with the #MeToo tidal wave. What are the possible repercussions when one denounces, whether via social networks or a student newspaper? » pursuit Mme Chagnon.
According to her, student associations must “professionalize” themselves if they wish to “protect their members more. We are doing the victim a disservice if we set up a process that can be attacked from anywhere. »
And the university?
“Mr. McCool, as a student, can argue that he was entitled to an environment free from harassment and reputational damage. And the university still had a minimum obligation to protect its reputation and its progress,” explains the professor. But McGill University has argued that it cannot intervene in the management of student associations, which are entirely autonomous under Quebec law.
After the publication of the article in the McGill Daily, Mr. McCool was stripped of his post of SSMU Vice President of Internal Affairs, which was paid $35,500 a year. He also claims to have been ostracized by the coach of the establishment’s rowing club.
Since the decision rendered by the Superior Court, the lawyers of the former student think “to perfect” the amount of 1.5 million dollars claimed from the defendants.
The duty contacted McGill University, EUS, SSMU, the McGill Daily and attorneys for all defendants, including the victim. Single Me Morales answered our questions. One of the Daily Publications Society’s lawyers and three reporters, Me Michael N. Bergman, replied that he could not comment on the file immediately.