Half an hour into her interview with a 17-year-old complainant, a constable with the Timmins Police Service in Northern Ontario announced that she felt that “educating” the suspect – not charging him with sexual assault – was the most appropriate action. She reached this conclusion before questioning the suspect or any witnesses, before sending blood and urine samples to a toxicology lab, and before viewing the sexual-assault examination kit results.
Unfounded: A Globe investigation into how police handle sexual assault allegations
In Vancouver, two frontline officers decided to toss out a rape case without transferring the file to the specialized sex-assault unit, without canvassing for witnesses, and without collecting surveillance footage that might have corroborated key details of the complainant’s story.
In Ottawa, police waited so long to investigate one woman’s complaint about a neighbour sexually harassing her that by the time they knocked on the suspect’s door, he had moved.
Each of these cases, which were examined as part of an ongoing investigation into how Canadian police services handle sex-assault files, involve investigative deficiencies. In February, The Globe revealed that sex-assault allegations are nearly twice as likely to be deemed unfounded – meaning, the officer does not believe a crime occurred – as are regular assault cases.
Will they believe you?find your police jurisdiction
But the problems with the sex-assault investigations we reviewed run deeper than unfounded statistics. Sexual assault is one of the most serious violent crimes in the Criminal Code, but the investigative response is not always proportional to the severity of the crime, say dozens of academics, advocates, and Crown attorneys interviewed by The Globe.
As part of its probe, The Globe reviewed more than 50 sex-assault complaints reported to police across the country. The Globe analyzed these cases by examining police files, audio and video recordings with investigators, e-mail correspondence between complainants and police officials, reports from independent oversight bodies, medical documents and court records. When documents were not available, The Globe attempted to confirm the complainant’s experience through interviews with witnesses, relatives and friends who were present during police interactions, as well as through the police service itself.
WHAT IT’S LIKE TO REPORT A SEXUAL ASSAULT
More than 90 per cent of sexual assault victims never report to police. The Globe interviewed 54 people who did.Read their stories
An analysis of how these cases were handled reveals that, regardless of whether an allegation ended up unfounded, sexual assault investigations are being neglected in the following ways:
- Basic investigative steps, such as identifying and interviewing witnesses, collecting video surveillance, and reviewing e-mail, social media and phone records, are routinely skipped.
- Not all sex-assault investigators understand Canadian consent law.
- The quality of the investigations varies significantly depending on the police department and officers involved.
“I see it over and over and over again, just incomplete and indifferent investigations that do not try to turn up the evidence that might actually be of assistance,” said Janine Benedet, a professor at the University of British Columbia who specializes in sexual-assault law.
“We’re told by judges … that the most difficult problems they face are what they call these ‘He said, she said’ cases. Where it’s her word against his word,” Ms. Benedet continued.
“Well, often it’s only her word against his word because the police have failed to collect the necessary corroborating evidence that would tip the balance in her favour.”
In reporting this story, The Globe interviewed more than 50 professionals regularly involved in sexual-assault investigations, including support workers, prosecutors and defence lawyers, sexual-assault nurse examiners, as well as current and former police officers. These experts say that cases that should be resulting in charges are being inappropriately screened out and that, of the minuscule few that do make it to court, files that could result in a conviction are being needlessly derailed, because of earlier investigative missteps.
About a third of the country’s police services have publicly committed to auditing sex-assault files and policies in response to The Globe’s Unfounded series. But the scope of these reviews differs wildly. The vast majority seem to be happening internally, despite mounting pressure from academics, advocates and political leaders, who say that without external expertise, real reform is unlikely. Most also appear to be focusing on whether a file was properly classified – for example, if it wound up “unfounded,” but should have been coded as “unsolved” – rather than on the officer’s actions during the investigation.
In Timmins, Police Chief John Gauthier announced last month that the service had concluded its review. The Globe’s data showed that between 2010 and 2014, the Timmins Police Service posted an unfounded rate of 30 per cent for sexual assaults (the national average is 19 per cent). Chief Gauthier told the city’s police services board that coding classification errors were entirely to blame for the department’s high unfounded rate. The important thing, he underscored, is that the investigations themselves had been done properly.
“Not one sexual-assault case was mishandled,” Chief Gauthier told the board, local news outlet Timmins Today reported. “Sexual-assault reports are taken seriously, and are always fully investigated … The issue is certainly not, and was never, in the way that Timmins police investigate sexual assaults.”
This past May, Ontario’s Office of the Independent Police Review Director, which investigates allegations of police misconduct, reached a different conclusion.
It was just before 9 p.m. on Oct. 11, 2015.
Constable Leah Blanchette knocked on the interview room door where Maddie and her parents were waiting. The 17-year-old high-school senior was slouched forward on the old beige couch, with her arms wrapped tightly around her stomach. Maddie’s mother leaned forward and kissed her daughter quickly on the cheek.
“We won’t be far away,” she said, before heading outside.
The constable shut the door behind Maddie’s parents, then pulled out a notebook.
“My job is to find a solution to the problem … and being charged and having a criminal record isn’t always a solution. A solution might be being educated. It might be a stern talking to,” the officer said. “All I want to do is just gather as much information about what you can recall and we’ll go from there.”
So Maddie began to explain what had happened: The previous night, she and a few friends went to a house party in town. She became extremely drunk. Toward the end of the evening, she had to go to the car for something. A male friend offered to go with her – presumably to take care of her, Maddie told the officer.
But when she got to the car, the guy climbed into the back with her, then kissed her. Caught off guard, she kissed him back. The next thing she knew, her pants were off and he was having sex with her. She had no memory of what had happened in between. Next, a friend of theirs was banging on the window. He told Maddie to get out of the car. She remembers crying and someone from the party asking if she’d been raped. Her friends drove her home shortly after. The next morning, the guy texted her: “Sorry, for all this. I didnt know if you wanted this or not but i made sure, i asked like 5 times and stuff and yeah, my apologies i feel like a huge dick i dont know if it because of, you know youre too drunk or what not. but just text me when you atleast get in.”
Maddie didn’t know what to do. She had only lived in Timmins, a town of about 44,000 people, for a few years. The guy was close with many of her friends. She worried that people were going to be mad at her if she didn’t let it go. But her parents eventually convinced her to go to the police and let them decide if it was worth pursuing.
Twenty-seven minutes into the interview, Constable Blanchette was done asking questions.
“I have to agree that our earlier conversation about educating him is our best route,” she said. “You have to take a little bit of responsibility as well, right? And, ah, you unfortunately drank too much, you unfortunately found yourself in that position.”
In Canada, someone who is so inebriated that she does not understand the consequences of her actions cannot agree to sex. But the constable never took any steps to try to determine if Maddie had the capacity to consent. She didn’t ask the 17-year-old what, or how much, she had to drink, although she did ask Maddie how much the suspect had consumed. The officer then explained that, since Maddie could not recall if she gave consent, and since both she and the suspect were very drunk at the time of the incident, criminal charges were not appropriate.
This is not how consent law works. Under the Criminal Code, a suspect’s level of intoxication is irrelevant.
After the interview, Maddie’s mother complained to a supervisor, and Constable Blanchette was removed from the investigation. Constable Jason Brazeau took over, but things did not improve, her parents say.
Two weeks after first contacting the Timmins Police Service, Maddie’s parents filed a complaint with the Office of the Independent Police Review Director about the conduct of the officers and the shoddy quality of the investigation. In May, the OIPRD concluded that allegations of misconduct and neglect of duty made against Constable Blanchette and Constable Brazeau were substantiated.
The panel determined that both constables made a “critical error” by failing to understand consent law. Where Constable Blanchette was concerned, the panel found that her comments to the complainant during the initial interview were “not professional, sensitive or tactful.”
With respect to Constable Brazeau, the lead officer for the bulk of the case, the OIPRD found that he conducted “a negligent investigation.”
The report notes that he didn’t obtain the text messages sent by the suspect the morning after – which “ought to have been done as a matter of basic investigative process, especially where credibility is at issue” – failed to recognize and promptly interview an important witness, and never submitted the sex-assault kit evidence for toxicology tests.
“There were a number of investigative errors that resulted in Cst. Brazeau concluding that there were no reasonable and probable grounds to proceed with criminal charges against the suspect,” states a report obtained by The Globe.
Although both constables were found to have breached the Police Act, the misconduct was categorized as “less serious” so punishment was handled internally. Maddie’s parents say they were told the constables forfeited a few days’ pay and were offered training.
Maddie’s case was not classified as an unfounded allegation. Rather, it was recorded as a valid complaint that did not result in an arrest. It also fell outside the scope of the Timmins Police Service audit, since it occurred in 2015. Nevertheless, the problems with the investigation identified by the OIPRD underscore the dangers of police reviews that concentrate only on unfounded coding issues – rather than officer conduct.
The problems with Maddie’s case were evident both in the interviewing officers’ attitudes and in the collection of material evidence. This latter point has special significance in a sexual-assault investigation.
Sexual assault cases are unique from other investigations in that most involve just two people who have differing versions of events. Consent, rather than the question of whether the sex act occurred, is usually the focus of an investigation.
This means that most cases hinge on whose story is most credible. And since there are almost never eyewitnesses, courts are left to rely on a series of details – rather than one smoking gun – to decide which version is most believable and if it passes the “beyond a reasonable doubt” test needed for a conviction.
This is why little details that may seem peripheral to the actual incident can be crucial and why police must take pains to be thorough in their investigation, experts say.
For example, said Wendy van Tongeren, a former Crown attorney from New Westminster, B.C. who specialized in sex-crimes prosecution for three decades: Let’s say a victim is asked what they were doing before an assault and they testify that they came home, took off their pink sweater, put it on the table, and then made some eggs.
“Even if it has nothing to do with the offence, if the police take pictures [of the crime scene] and there’s a pink sweater and eggs, that already has a ring of truth,” Ms. van Tongeren said.
“There are some investigators who truly get this. They know how to gather the evidence that is helpful to allow others to make an objective decision, but it’s my experience and suggestion that there’s not a lot.”
Ms. van Tongeren said that crime-scene photos, for instance, are rare in sex-assault cases, despite the fact that they’re common in other types of investigations.
It used to be that to convict someone of sexual assault, there needed to be additional corroborating evidence, but that has since changed. Today, judges can convict based solely on the strength of a victim’s testimony. But in practice, judges are reluctant to do so without some type of outside substantiation, Ms. van Tongeren said.
The Globe interviewed three recently former and nine current Crown attorneys who frequently prosecute sexual-assault cases.
The Crown attorneys, who came from six provinces and one territory, each said that the quality of police investigations in sexual-assault cases varies significantly between officers. Inexperienced officers and ones without specialized sexual-assault training are more likely to skip, or forget, steps that more seasoned colleagues would take, such as interviewing all available witnesses.
“There are missed opportunities to corroborate little details,” said one Nova Scotia Crown, who, like all other working Crowns who spoke to The Globe, was not authorized to speak on the record. For example, he said, if the story is that a complainant had a few coolers at a bar before the assault, the Crown wants a copy of the bar bill.
One Alberta Crown attorney said that proactively asking for electronic communications between the complainant and the accused is not routine for every officer – and it should be.
In four of the files reviewed by the Globe, the victim and suspect directly discussed the assault after the fact by text message, e-mail or Facebook. Each complainant said that they volunteered their communications to police, but that the officers didn’t ask for it on their own.
Crown attorneys who spoke to The Globe say that one of the biggest issues they see is that some police seem to be triaging cases based on whether they think there’s enough evidence for a conviction.
“And that’s not their job,” said one Ontario Crown. “Their job is to decide if there’s any evidence that a crime was committed.”
For an accused to be found guilty of a crime, they need to have cleared three legal tests.
In most provinces it works this way: Police evaluate the evidence and decide whether there are “reasonable and probable grounds” that a crime occurred. If there are , they lay a charge. From there it goes to the Crown, who, before bringing the file to court, must determine that there is a “reasonable likelihood” or “probability” of conviction. Finally, a judge or jury weighs in. For a conviction, guilt must be established “beyond a reasonable doubt.”
“[Some police] are jumping the gun. They’re acting as the judge,” said the Crown attorney.
In one case reviewed by The Globe, the investigating officer used this very rationale in an e-mail to the complainant when explaining why no charges would be laid: “I have gone through the file at length – over time, as you know – and in conclusion there is still unfortunately insufficient evidence to recommend charges to Crown Counsel – remembering that the threshold is proof beyond a reasonable doubt.”
Typically, these cases aren’t the “slam dunks,” the Crown attorney added, noting that some officers may be acting out of a sense of wanting to protect the victim from a gruelling court process, when experience has shown them the case likely won’t be successful. Still, the Crown said, “That is not for them to decide.”
On the other side, defence attorneys interviewed by The Globe say that they see the opposite problem: Police are too quick to make an arrest before conducting a proper investigation.
“In a number of cases I’ve defended, the allegations were patently unsustainable. So, more probing interviewing might have prevented some of my clients’ lives from being turned inside-out,” said Joseph Neuberger, a Toronto lawyer who says he has defended more than 700 sex-related cases.
“In some of the cases, the interviews were very short, and possible avenues of investigation were not taken. Witnesses who could have been available for interviews we were not interviewed. When there is availability of other sources of evidence, I think it’s important that a comprehensive investigation is conducted.”
No province or territory requires police officers to take specialized sexual-assault courses before handling a case. In general, most decisions around sexual-assault cases are left up to individual police services, from training, to oversight to investigative protocol. The only common thread seems to be that individual officers are given huge latitude in how to go about conducting their investigation.
This can make it difficult for complainants to seek recourse afterward, if they believe their case was mishandled. This is the situation a woman named Christine Sandhu found herself in last year.
On July 29, 2015, Ms. Sandhu reported that she had been raped and choked by an acquaintance in his apartment after they had spent a few hours drinking at a bar across the street. The then-27-year-old believed he might have drugged her.
Ms. Sandhu contacted the Vancouver Police Department a month after the night in question. She initially met with two Vancouver patrol officers who brought her to headquarters for a videotaped statement, then told her they would be passing the file off to the specialized sex-assault unit.
More than two months after her interview, and after hearing nothing, Ms. Sandhu phoned one of the constables for an update.
“She said, ‘We closed the file because it’s a “He said, she said” case – because it’s your word against his,’” Ms. Sandhu recalled. The officers had made this decision before handing the file over to the specialized unit.
A copy of the file, obtained through freedom of information, showed no record that the officers canvassed any of the suspect’s apartment neighbours to see if they had heard anything, and the constables never collected video surveillance from the area, which could have corroborated key details of Ms. Sandhu’s story, including her timeline of events, her level of intoxication and her claim that, after being raped, she ran back to the bar to make herself sick: “I wanted it out of my body.”
“I never thought this would happen to me. You grow up with this idea, ‘Oh, if I’m raped, of course the police will do something.’ It was pathetic,” Ms. Sandhu said.
On April 12, 2016, Ms. Sandhu filed a misconduct complaint with the Office of the Police Complaint Commissioner in British Columbia, which, like the OIPRD, investigates allegations of police misconduct. After a one-month review of the file, the oversight investigator responded by letter.
Ms. Sandhu’s complaint was deemed inadmissible.
“When conducting an investigation, an officer gathers information and evidence and makes a determination on whether or not to arrest a suspect and recommend charges to Crown Counsel for approval … police are afforded significant deference in their exercise of discretion in their investigation and determining whether to arrest a suspect and forward charge recommendations to Crown Counsel,” the decision letter read.
The Vancouver police did not respond to a request for comment on the case.
Tim Laidler, the former head of Vancouver’s Sex Crimes Unit, says that resources can always be a problem for police services. Mr. Laidler, who retired in 2010, says that when he ran the unit, they dealt with about 600 cases a year with between 18 and 24 officers.
Typically, he said, a call would come in, a uniformed patrol officer would take an initial report, and if a suspect was on scene, may make an arrest. If the case was more complex, he or she would pass the file off to the specialized unit, where a sergeant would assign the case to an investigator. Often, there were more files coming in than detectives who were available, so the file would be held until someone was around. In this system, the more serious allegations took priority.
“The real problem is the ‘He said, she said’ jobs, and there’s a lot more of them than people realize. Very few are black and white, and by that, I mean a woman is walking down the street and a guy grabs her and pulls her into the bushes,” Mr. Laidler said.
“What’s more common is someone goes out to a bar, [blacks out], wakes up in someone’s bed, isn’t sure what happened, then four or five days later calls police.”
These types of allegations can end up at the bottom of the pile, Mr. Laidler said: Sometimes it can take months for investigators to get around to them and by that point, it was likely too late.
“With a ‘He said, she said’ case, you really need to do it right away, in my opinion. You can’t go to the guy four months down the road and say, ‘You were involved in a sexual assault,’ ” Mr. Laidler said. “He’ll say, ‘Well, I don’t remember that. The person agreed to it.’ And that’s the end of the case.”
This process also means that the individual frontline officer’s initial handling of an allegation can determine what happens next. Mr. Laidler said that, if a call happens to come in earlier on in the shift, there is a greater chance the front-line officer will have time to do some preliminary investigative work, such as tracking down a suspect.
But the majority of the time, with the thorny bar-related allegations, the calls come late. Technically, cases could get passed off to the next shift, but they will have their own heavy caseload to deal with, so it’s not often done in cases that are deemed less serious, he said.
“With the bulk of the cases, with the resources that police have got, you’re not going to be able to do that on the front line.”
Among the files reviewed by The Globe, at least one investigation seems to have fallen apart because of a delay in assigning the case.
In November, 2012, A.S. was returning to her apartment from the basement of her Ottawa building when a man sharing the elevator with her pulled out his erect penis.
“I felt something hard touch the back of my hand,” said the woman, who was 21 at the time. The man looked at her, smiled, and said, “Oops.”
Police delayed investigating the case for months and the suspect – whose identity was known – had fled the city by the time they took it up.
A.S. reported the incident to police within a day or two and was told someone would be in touch to investigate. She learned early on that security footage confirmed he was a resident in the building. Over the next few months, she said, the case changed hands several times. By the time the new round of investigators took over the file, the suspect had moved, A.S. says she was told.
An Ottawa Police spokesperson confirmed the file had been closed because “the suspect is no longer in this area. They don’t know where he is.”
Said A.S.: “Everyone knew who this person was ... They knew what floor he was on. They had the video. They could literally go knock on his door.”
The Timmins Police Service declined to comment on the issues raised by the OIPRD in regard to Maddie’s case, citing privacy concerns. In an e-mail, a spokesperson said, “The OIPRD has conducted its review in the case specifically mentioned, and the Timmins Police Service abides by those findings. The subject officers have been sanctioned.”
For Maddie and her parents, the service has not done enough to make amends. Maddie’s mother said that,while publicly it may seem that the service is taking sex-assault cases seriously, given what she’s witnessed, what’s happening on the ground is a different story.
“When [Maddie] came out of the interview, she was hysterical, saying, ‘It’s all my fault. I shouldn’t have got in the car. I was drinking,’” said her mother.
Added her father: “If you go to a party and drink and you get drunk and you get raped – that’s your fault. That’s what she got out of that police interview.”
Her parents say they still struggle with feelings of guilt about taking her to the police station. They then watched as their daughter was ostracized at school. She didn’t go to the graduation dinner. She went to class just enough to pass and graduate.
“Because the police didn’t believe me, nobody at school believed me,” said Maddie, who is now 18. “Because absolutely nothing was done, I think I was the one who was viewed as in the wrong.”
Maddie says she can’t imagine a situation where she would ever go to police again.
“Not for anything. They are really the last people I would contact for help,” said Maddie.
Robyn Doolittle is a reporter with The Globe and Mail’s investigative team.
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