Unfounded: The Globe and Mail’s Investigation Into Sexual Assault Allegations And Canada’s Response

When Canadian law enforcement closes an investigation, they label the case with a code that signifies why it was dismissed. The code ‘unfounded’ means that the investigating officer concluded that a crime was not attempted or did not occur. These crimes are not included in local or national statistics. Once an allegation is labelled this way, it disappears from the public record.

The Globe and Mail contacted police services across the country over the course of a 20-month long investigation into unfounded cases. The investigation revealed that over 5000 allegations of sexual assault are closed as ‘unfounded’ by Canadian law enforcement each year. This is a five-year unfounded rate of 19%, which is almost double the rate for physical assault and is dramatically higher than that for all other allegations. This number is also much higher than the false-report rate, which international research puts at somewhere between 2-6%. Since 2010, over 27 000 cases of sexual assault have been triaged out of the justice system.

The rate of unfounded sexual assault allegations varies wildly between Canadian municipalities. This variance makes it difficult to find patterns that contribute to high unfounded rates. For example, Manitoba has the second-lowest provincial rate of sexual assault, and Winnipeg police only unfounded 2% of all sexual assault allegations. But travel two hours west to Brandon, MB, and the rate grows to 18%. Toronto and the York region border each other, yet the unfounded rate in York was four times higher than Toronto’s, which stands at 7%. Provincial rates also fluctuate between 11-32%, with the highest rates in the Maritimes and the North. Canadian sexual assault survivors enter a game of chance- justice does not only rely on the facts of the assault but by which police station they live near. Experts conclude that this dramatic variance in unfounded rates implies a broken system.

“What does unfounded mean to you? What does unfounded mean to anybody? It means ‘You’re lying,’” says Ottawa criminologist Holly Johnson, who has extensively studied unfounded cases in Canada’s capital. Johnson explains that large rates of unfounded cases perpetuate the myth that women lie about assaults and deter women from reporting.

“When people talk about sexual assault, they focus on two statistics”, says Robin Doolittle, the lead investigator of the Globe’s investigation. “First, that fewer than 1 in 10 victims actually reports to the police. And second, that of the few cases that actually make it to court, less than half result in a conviction.” Doolittle explains that it can be difficult to get to quantifiable reasons behind these statistics. When she learned about ‘unfounded’ cases, Doolittle had proof beyond the anecdotal that police were not listening to sexual assault complainants.

Overall, unfounded rates tend to be lower in cities that were subject to more media coverage and increased scrutiny. In Ottawa, one of the few cities where unfounded rates have been previously analyzed, the unfounded rate has plummeted from 38% in 2012 to 12% in 2014. Four years ago, advocates had brought the high unfounded rates to the attention of the Ottawa Police’s sexual assault and child abuse section. In response, the department introduced new training around the usage of the ‘unfounded’ classification, and supervisors began reviewing cases they had submitted.

However, no Canadian police department has been met with as much scrutiny as the Toronto Police Service after a 1998 landmark court case. A ‘Jane Doe’ was attacked after police failed to warn her about the ‘Balcony Rapist’ who had attacked four other women in her neighbourhood. When the trial finally happened 10 years after the assault, Justice Jean Macfarland ruled that the Toronto Police Service’s assault practices discriminated against women. This verdict ignited the Toronto city council to call for a review of how the service handled these cases. Fifty-seven recommendations were made, which included better training, oversight, and investigative protocols, and a rule that first-response officers were no longer able to classify a sexual assault case as unfounded. A 2004 review noted that while not all recommendations had been followed, the service had made significant progress and Toronto’s unfounded rate currently stands at 7%. The media response to this case thrust poor sexual assault police policies into the public eye for the first time in a country that’s normally lauded for its progressive assault legislation. However, outside Canada’s two largest cities, survivors continue to be silenced.

Since the 1998 case, Jane Doe has been on the front lines of sexual assault activism; providing guidance to law enforcement across Canada about how to improve the system. She believes statistics only convey a small part of what women are experiencing. Ten years ago, she was able to sit in on a police training course on sexual assault. The first two modules were about how to spot a false allegation. All training was done by police officers, rather than outside professionals with specific training. “If you want to fix the system… a good place to start is with police training,” says Doe.  “The conviction rate is 1 per cent [when you factor in how few cases are reported]. Why aren’t we on the street with torches?”

South of the border, U.S. citizens can gain access to unfounded statistics freely through the FBI website. However, since Statistics Canada stopped reporting unfounded rates in 2003, Canadians unfounded rates are not publicly available even under freedom-of-information acts. Former senior policy analyst Linda Light and legal analyst Gisela Ruebsaat are two of the few civilian researchers who have gained access to full reports through a 2006 investigation into disparate unfounded rates in British Columbia.  Unsurprisingly, the two researchers concluded that a case was more likely to be classified as ‘founded’ if it fit the outdated ‘perfect victim’ model- if the file noted a victim had physically resisted; if the suspect was a stranger; if the victim had no mental health issues or drug and alcohol abuse. Light and Ruebsaat also saw that allegations classified as unfounded were less likely to show evidence of a robust investigation. Light stated that they were ‘very surprised’ at how many cases had been closed as unfounded without the police ever making contact with the suspect.

While Light and Reubsaat’s study is one of the most oft-cited reports on the quality of sexual assault allegation responses in Canada, it was never actually published. The study was federally funded but finished up just when former PM Steven Harper had gotten into power. “They wouldn’t let us publish it,” said Linda Light, stating that she had never learned exactly why. The researchers warned that without national data on unfounded rates, there would be no way no monitor unfounded rates and no way of assessing the effect of any measures implemented to improve classification accuracy.

Eleven years after Light and Ruebsaat’s study, knowledge about unfounded rates has finally managed to penetrate the public sphere through the Unfounded investigation. The response to the investigation has been almost cathartic, as policy makers and police departments have finally been pressured to make the changes that activists have been pushing for. Since the investigation’s debut, more than 50 police forces have announced an investigation into cases categorized as unfounded. The Liberal government is planning to invest more than $100-million over the next five years to prevent gender-based violence, citing the Unfounded investigation. Public safety ministers across the country have started to lay the groundwork for a national strategy to deal with assault cases, with a goal to set up a common set of practices police should use when dealing with survivors of sexual violence.

Some jurisdictions are planning to adopt the Philadelphia Model, a 17-year-old initiative where women’s advocates do annual reviews of sexual assault case files with high-ranking officers. Since adopting the model, Philadelphia’s unfounded rate has decreased from 18% to just 4%. Justice Minister Jody Wilson-Raybound has called this model one of ‘the most exciting policing initiatives in this area’.

Sunny Marriner, the executive director of the Ottawa Rape Crisis Center, is the person leading the campaign to bring the Philadelphia Model to Canada. She uplifted by the promises from Canadian police jurisdictions have made. “I’m really supportive of any community doing case reviews, but to be worth doing to be successful, it needs to be the right kind of review,” says Marriner. “You need the expertise of those who work on the front line. Sexual assault centers. Advocates who deal with survivors. Only 5% of women report to police. We still talk to the other 95%.”