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Investigating Complex Cases
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
Earlier this month, the Globe and Mail released its findings from a 20-month investigation into how police services across Canada handle sexual assault allegations. Robyn Doolittle’s investigation report, ‘Unfounded’, found extensive flaws and inconsistencies in how allegations were closed by police and deemed unfounded in the various police records’ systems. A copy of the investigation report can be found here.
According to the report, when an allegation has been categorized as ‘unfounded’, the investigating officer does not believe that a crime was attempted or even occurred. This means that every year, 5,500 Canadians who report sexual violence to police never get the opportunity to bring their case to a crown prosecutor, let alone a judge or jury.
The Canada-wide investigation revealed that on average, 1 in 5 sexual-assault allegations is deemed unfounded, but the statistics varied significantly from sea –to-shining sea. While in general, larger urban centres had lower unfounded rates, my own city (Ottawa) had 28% of their allegations deemed unfounded over a five-year period. Saint John had a remarkable 51% of their allegations deemed unfounded.
If these findings do not seem startling at first, consider this: while nearly 20% of sexual assault allegations have been deemed unfounded, the percentage of physical assault allegations that are characterized as unfounded is only 11%. Also consider that the report showed that the rate of false allegations made to police is only somewhere between 2% and 8%; how can it be, then, that nearly 20% end up in the “baseless category”?
The analysis in the ‘Unfounded’ report looks to police training, policies and general understanding of sexual assault investigation techniques to understand how this gap is occurring.
What does this report mean for workplace investigators?
As a workplace investigator who deals with assault allegations (albeit in the civil context) I found this report riveting. Aside from simply digesting the major finding of the report, that too many allegations have been characterized as ‘unfounded’ by the police, there were many nuggets in this report that can be integrated into an investigation practice to the benefit of clients. Here are three things that report reinforced to me:
- Investigators need to be experienced and trained in the specific type of investigation that they are being tasked to complete
Investigators need to have experience and depth in the type of investigation that they are conducting. If the investigation is related to a code of conduct violation, there is a need to make sure that the investigator has a firm knowledge of what the standards are for a code of conduct violation in this organization. The same goes for a sexual harassment investigation or a discrimination investigation. When measuring factual findings against the standards, a firm knowledge of those standards is vital.
In the Globe and Mail article, the Ottawa Police Service credits the substantial improvement to their ‘unfounded’ numbers to their improved training on the definition of the unsubstantiated category. Whereas previously if a complainant did not want to proceed with an investigation, or refused to co-operate, the allegation was lumped into the ‘unfounded’ category; with new training on the issue, officers were only able to use the term ‘unfounded’ in situations where the officer was certain that there was no violation of the law.
- Investigation techniques and training are always changing. This is a good thing.
Aside from key documents, the information gathered in the complainant, respondent and witness interviews will likely be the biggest source of evidence in an investigation. It is very important to get these interviews done right; while it is possible to go back and re-interview, most clients are looking for the investigation to be done quickly and efficiently.
The Globe and Mail report analyzed one particular 1999 Ottawa Police sexual assault interview extensively. This case had been deemed unfounded at the time, partially due to the victim’s tendency to laugh during the interview as well as the fact that the alleged assaulter had declared himself sterile and this did not line up with the fact that the 14- year old victim was pregnant. Years later, the victim received a financial award from the Ontario Criminal Injuries Compensation Board for her treatment, including the fact that her allegation had been deemed unfounded. The Ottawa Police Inspector interviewed by the Globe and Mail for the report acknowledged that the techniques used 20 years ago, including making an assessment of the interviewee’s tendency to laugh, are no longer acceptable techniques today.
Rubin Thomlinson LLP recently spent some time focusing on how to conduct trauma-informed investigations that take into account what experts have learned about the realities of sexual assault survivors. What was underscored for us is that it is important to understand the specific neurobiology of survivors in order to gather the best information; sexual assault victims do not retain memories in the same linear fashion as non-victims. So this means that the typical, chronological information-gathering structure may not work for these victims’ interview. It may also mean that there are gaps in the memories. This means that before a workplace investigator makes a finding based on the non-recollection of an incident, they must consider that there may be a biological reason for the lapse.
We also discovered that the ideal time to interview sexual assault victims is not right after the event. It is recommended that the investigator wait for the victim’s stress hormones to have reduced before being asked questions about the event. This means waiting at least 24 hours and possibly even 48 or 72 hours before conducting an interview. This runs counter to the historical belief that the best evidence would come out in an interview that occurred as close to the event as possible.
- The value of investigation oversight.
In the days and weeks following the Globe and Mail’s report, police services across the country committed to reviewing specific sexual assault files as well as their practices in assessing them as unfounded. A February 9th Globe and Mail editorial indicated that “32 police forces serving more than 1,000 communities have launched investigations into more than 10,000 recent sexual-assault complaints.” This commitment to oversight included two of the biggest police services: the Ontario Provincial Police (OPP) and the RCMP. To me, this signaled the value of an unbiased external review in order to effect change.
Rubin Thomlinson is often brought in to review investigations that have already taken place. Sometimes these investigations have been done internally, and sometimes they have been done externally; sometimes they have been done really well and sometimes they have not. The value of these reviews is certainly that someone who has not been in the weeds of the file will almost always find something that the original investigators could not: a process error, a suggestion of bias in the interviews, or a missed opportunity to bring in another witness. Sometimes these findings merit a second or follow-up investigation, and sometimes these findings do not change a thing; but at least the party who is responsible for the investigation is made aware of the shortcomings.
In my day-to-day investigation practice, I see the value of oversight even when there is no formal review process. Our firm has strategically ensured that our investigators work as a part of a team so that we can learn from each other. I recognize that this is exceptional and that I am very lucky to have six other lawyer/ investigators as a resource. These ‘overseers’ are worth their weight in gold.
Robin Doolittle’s investigation report will undoubtedly change how police services conduct sexual assault investigations. Clearly, change is already afoot and the future characterization of allegations as being ‘unfounded’ will only be done after due consideration of what the Globe and Mail investigation report revealed.
The findings, however, are not limited to investigations in the criminal context. The lessons learned will sculpt the way that workplace investigators conduct their own processes and we will continue to learn and evolve our practices.
About the Author: Ottawa employment lawyer Jennifer White conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, and other problematic workplace behaviour. Jennifer also provides workplace investigation and human rights training to staff at all levels.
 The report notes that the Ottawa Police Service has made strides in improving this number. The five years that were looked at were 2010- 2014. In 2012, 38% were closed and deemed as unfounded; by 2014, the number had been reduced to 12%.