P.E.I.'s 'unfounded' sexual assault cases highest in country

P.E.I. continues to have the highest rate of "unfounded" sexual assault cases in the country, according to a recent report by Statistics Canada.

The report put P.E.I.'s rate at 25 per cent in 2019, the most recent year statistics are available. That's more than double the national average of 10 per cent the same year.

"It's unfortunate because I think that people may become discouraged from reporting if they believe that their case may be labelled as unfounded," said Danya O'Malley, executive director of P.E.I. Family Violence Prevention Services.

A series of reports by the Globe and Mail in 2017 pointed to a high level of unfounded sexual assault cases across the country, which advocates said wrongly implied that a high number of reports were fabricated by complainants.

That series prompted reviews by police agencies across the country and a commitment to use the definition provided by the Canadian Centre for Justice Statistics when tracking violations.

Unfounded is the label used if police determine a crime did not take place, nor was one attempted.  

A report by the P.E.I. government in 2017 of all four police agencies in the province found that 40 per cent of sexual assaults were classified as unfounded. 

Previous to 2017, some cases had been labelled "unfounded" if there wasn't enough evidence to charge someone, if the complainant decided they didn't want to proceed, or if a suspect could  not be identified. Now, those cases should be classified as "founded, uncleared."

Statistics Canada had discontinued tracking unfounded cases because of the variety of interpretations across the country, but since 2017 it has been tallying these cases once again.

The most recent numbers released show the rate for P.E.I. at 25 per cent for 2017, dropping to 12 per cent in 2018, but rebounding back to 25 per cent in 2019.

In the Atlantic region, it ranges from 14 to 18 per cent.

The findings across the country may vary, according to Statistics Canada, as the new classifications were phased in starting in 2018, and into 2019. 

Advocates had hoped to see the rate fall to three to six per cent, which they believe is more realistic. They question whether all police forces are now labelling cases properly.

'Profound' impact 

"If unfounded rates were going back up in a community, I would want to be looking at what was the evidence that was relied upon to substantiate that the case did not occur and could not have occurred," said Sunny Marriner, project leader, Improving Institutional Accountability Project, which reviews police response to sexual violence.

When no one is charged, it can have a "profound impact on survivors," she said. 

"Many survivors stress that the impacts of sexual violence are intense and can destabilize their lives and trust in individuals, but the failures of the justice system go much further — they destabilize their belief in the entire social fabric they previously believed existed to protect them," said Marriner.

"This can undermine their core beliefs in everything: policing, fundamental fairness, the value of women and girls in society, the courts."

Statistics Canada estimates only about five per cent of survivors report their sexual assault to police, based on Canadian studies.

"It's scary for people to come forward," said O'Malley.

Victims have to fight very, very hard to be believed.— Danya O'Malley, P.E.I. Family Violence Prevention Services

"I can't imagine how difficult that must be to go through that process and to not find justice at the end of it.

"Victims have to fight very, very hard to be believed. It's still very sad how much that needs to happen," said O'Malley.

A major obstacle to a charge being laid can be a lack of physical evidence of injuries, or the lack of witnesses.

"When you have a justice system that's based around proof, then it's very difficult for victims to meet that threshold in terms of what has actually happened," said O'Malley.

"We know the emotional and psychological scars are sometimes unable to be erased for that person's whole life." 

Committee reviews RCMP unfounded cases

The RCMP set up committees across the country to review sexual assault files that didn't result in a criminal charge.

In P.E.I. the Sexual Assault Investigation Review Committee was established last year and has representatives of RCMP, Child and Family Services, Victim Services, the Mi'kmaq Confederacy, the P.E.I. Rape and Sexual Assault Centre and UPEI. 

They're sent a random sample of case files provided by a team at RCMP's national headquarters.

The P.E.I. group has only met a few times due to COVID restrictions, but when they gather they meet for two days and review about eight files, including statements from witnesses, investigators' notes and taped interviews.

"What was the timing like for these interviews? Was it done as speedily as it could have been? Was there oversight from management in these files?" said Eileen Conboy, committee member and sexual violence prevention response co-ordinator at UPEI.

"We look for opportunities to give feedback on what was done well, what could be changed, how the questions were asked … the lens of being trauma-informed," she said.

We look for evidence perhaps of rape myths.— Rachael Crowder, P.E.I. Rape and Sexual Assault Centre

"But more critically … we're also looking for attitudes that might drive behaviours around the way cases have been investigated," said Rachael Crowder, executive director of P.E.I. Rape and Sexual Assault Centre, who is also on the committee.

"We look for evidence perhaps of rape myths. So people presenting with a complaint around sexual violence who are not believed because whoever is leading the investigation perceives that they're not acting in a way that they should have or their line of questioning may be more blaming than supportive," she said.

Myths and misunderstandings can impact an investigator's report, said Conboy, "because it can impact the support given, the space and time given, and also the line of questioning."

The reviews also look for what's not in the file: who wasn't interviewed, for example, and whether some evidence wasn't followed up on.

Too often, says Crowder, interviews with complainants take place in stark rooms, furnished only with a desk and a couple of chairs — rooms that are also used to interview suspects.

"If you're treating a victim as if they were the perpetrator of the crime, you're going to have a much different result than if you are respecting the person's experience and putting them in, let's say a softer room," said Crowder.

The P.E.I. committee has recommended RCMP use soft rooms to interview adult survivors — rooms equipped with a couch, easy chairs and cushions that are used now to interview children.

'Outstanding and very meaningful'

Staff-Sgt. Maj. Hank Pollard is the RCMP's representative on the P.E.I. committee.

He wasn't available for an interview, but in an email he describes the committee's work as "outstanding and very meaningful."

He said reviews to date haven't led to reopening files for further investigation, but one case was recoded from "unfounded" to "victim declined to proceed."

Pollard said once an assessment is complete, "district commanders are notified of any recommendations, if any, and they ensure that the investigator is aware and correction action is taken, if warranted." 

He also said if trends are identified, the division contacts all employees "to ensure that the issue/recommendations are rectified/corrected going forward."

He said he doesn't know why the rate of unfounded cases has increased on P.E.I.

"The focus of the committee is to find ways to improve the way that investigations are completed and ensure that a trauma-informed approach is taken," he said. 

What could make a difference? 

While the RCMP has been receptive to suggestions, Crowder would like the committee to be informed when those suggestions are implemented.

She'd also like to see more education for police officers, starting in college, on how to investigate sexual violence cases, so there can be more understanding of how trauma affects the way survivors react to and remember events.

"The sooner we can sort of unloosen the conditioning that a lot of us grew up with around rape myths, the better," said Crowder.

O'Malley agrees: "Some of it may appear as though they are complicit with what's happening. But in fact it can be a survival mechanism or a way to try to appease their perpetrator."

Crowder and Conboy would also like to see other police agencies (Charlottetown, Summerside, and Kensington) on P.E.I. start to review files, and include the community in that process.

A different approach

Marriner is working with municipalities across Canada to adopt a different approach that's independent of police: an advocacy based review model, that looks at all cases where charges aren't laid, rather than just a sample.

These reviews are done within three months of investigations being closed by police and ensure those investigations are thorough and include all possible evidence, to give them a stronger case going to court, she said. If the review finds something police missed, it's not too late to investigate those avenues. 

They're knocking at the door of the criminal justice system.— Sunny Marriner, Improving Institutional Accountability Project

"I really believe that in order for us to understand what's happening on a community level with sexual assault, that you do need to look into each and every case that doesn't proceed to charges," said Marriner.

The Violence Against Women Advocate Review Model is being used in 20 municipalities in Ontario, Alberta, Saskatchewan and New Brunswick, she said. She hopes it'll continue to spread across the country, including to municipal forces in P.E.I. 

Marriner would also like to see more support for survivors and a better understanding of the barriers to moving a case forward. Gender bias and access to medical, police and community supports are some of the obstacles she's observed through her work.

"Essentially, when they get to the police level, they're knocking at the door of the criminal justice system. And the question is, does that door open up to let them in or doesn't it?" said Marriner.

Whose voices aren't we hearing?— Eileen Conboy, RCMP's Sexual Assault Investigation Review Committee

With so few cases being reported to police, Conboy would like to see work done to make sure the needs of the whole community are addressed.

"Who's showing up, who's accessing services and whose voices aren't we hearing?" said Conboy.

While they don't expect change to happen overnight, Conboy and Crowder hope their work is making a difference.

"It's there to benefit the people of our community who have experienced sexualized violence to help them feel like they're more supported, understood, believed and that there may be some ways of making this process simpler," said Crowder.

• Published Thursday: Reports of sexual assault to police are up significantly across the country, especially on P.E.I. where they have more than doubled in the past few years, but that hasn't translated into a similar increase in those being charged with the offence.
• Published Saturday: There's been a dramatic rise in police reports of sexual violations against children in Canada, including in P.E.I. 

Numbers to contact for support:

• P.E.I. Rape and Sexual Assault Centre 1-866-566-1864
• Kids' Help Line: 1-800-668-6868

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