Report on an inquiry into administration of internal investigations by the Metropolitan Toronto Police Force

9.

Treatment of Victims

The Whitehead Matter and Jane Doe

Jane Doe came to the Internal Affairs unit accompanied by her lawyer to provide information about a police officer who had allegedly extorted sexual services from her while she was working as a prostitute by threatening to arrest her if she did not cooperate.

It is important to note at the outset of this discussion that the Internal Affairs investigators acted quickly and professionally to find out the identity of the officer described by Jane Doe and to set up the encounter at her residence. The investigators were solicitous of Jane Doe's physical well-being, and they tried to be supportive, particularly when Whitehead was confronted at her apartment.

It is also important to note that Jane Doe's story checked out in all respects. There was even corroboration from another police officer to whom Whitehead gave false information about the nature of his dealings with Jane Doe on the night in question.

Why then was there no criminal prosecution for sexual assault and extortion, the charges for which Whitehead was arrested? The investigators said they made the determination very early on in the investigation that there should not be criminal charges laid against Whitehead because Jane Doe would not cooperate in a criminal prosecution and would not be a good witness. They portrayed her in that light in an informal conversation with a Crown Attorney, with the result that their decision not to prosecute was confirmed.

They based their evaluation of Jane Doe partly on her initial reluctance to testify in court because of concern about her identity being revealed in a criminal process. But they refused to re-evaluate their position when, not long after the incident, Jane Doe informed Internal Affairs that she was prepared to testify and wanted Whitehead to be charged with a criminal offence.

They based their conclusion that she would be an unreliable witness mainly on her behaviour very shortly after the offence - she was tearful when she reported it and she suffered an emotional collapse when Whitehead was confronted by the investigators at her home. One of the investigators also referred to concerns about some "bizarre" former occurrences involving Jane Doe, but these matters were never shown to have any bearing on her reliability as a witness.

Again, the investigators did not reconsider their opinion as circumstances changed, as Jane Doe began to recover, and indicated she was strong enough to cope with a criminal proceeding. As counsel for Jane Doe has argued, they appeared not to understand or take into account how the trauma of sexual assault or abuse normally affects women.

All victims of sexual assault are traumatized by the incident. They need time to recover. Many of them worry about how they could have prevented the assault. Jane Doe's effort and initiative in contacting Internal Affairs later to say she was prepared to testify should have been recognized as a sign of emotional recovery, not a sign of erratic behaviour.

Not only did Internal Affairs investigators refuse to reconsider a potential criminal prosecution, they kept Jane Doe at arm's length from the disciplinary proceedings against Whitehead. They even refused to give her Whitehead's name. Their explanation was that they did not know what she would do with it. Perhaps they felt protective of a fellow officer. Perhaps they felt they were protecting Jane Doe from herself. Either way, their response was unacceptable.

Names of officers facing disciplinary hearings are not supposed to be secret.

Disciplinary hearings are not in-house matters to be dealt with in private by the force. Jane Doe should have been informed and involved. Furthermore, it is presumptuous and patronizing to make decisions on behalf of an adult who is capable of deciding on her own what is best for her. Police officers must take into account the greater good of the community in their decisions, but they should not presume to know what is best for an individual victim without consulting the person.

The sad thing is that the response of the force to Jane Doe only got worse. She was not notified, as the key witness, of the disciplinary proceeding. Neither was her lawyer. Her statement was changed at the hearing by the prosecutor, at the insistence of Whitehead's lawyer, without her knowledge or concurrence. The prosecutor and defence agreed on a penalty of days' off (which was rejected by the hearing officer). During the hearing, in her absence, the promise to Jane Doe to protect her identity was ignored, and her name was entered into the transcript.

The subsequent treatment of Jane Doe by senior management of the force seemed to emanate from a quite remarkable fog of ignorance.

It is almost unbelievable that -- having failed to notify Jane Doe of the disciplinary hearing, having reneged on a commitment to keep her name confidential, and having made unauthorized changes to her statement at the hearing - the force would call a news conference in which the Chief blamed Jane Doe for not showing up at the hearing and protecting her own interests. To add insult to injury, Jane Doe was also forced to go to court for an injunction to prevent her name being disclosed through public release of the transcript by the force.

The force was simply too eager to deflect any public criticism from itself. It reacted defensively and in the process disregarded the interests of an individual who was twice victimized -- by the original offence and by the police disciplinary system.

"Disturbing Echoes"

This report does not discuss any of these cases in detail. However, it is important to note that there were, as Commission counsel's report to the Inquiry observes, some "disturbing echoes" in these cases. In this context, we will refer to three cases which involved offences against women.

Constable S

Constable S was assigned to clerical duties. There was a series of adjournments in the criminal proceedings until -- two years later -- in September, 1990, Constable S. pleaded guilty to sexual assault and the other charges were withdrawn. He was given a suspended sentence and one year of probation. By that time, he had already retired from the force effective September 1, 1990, with full pension and it was too late to proceed with Police Act charges.

There is no evidence that police investigators assisted in the delay in the courts, but they were aware of it. A review of the court transcripts shows that no steps were taken by the Crown or the force to expedite the hearing even though disciplinary charges had been delayed to await the outcome. The Crown and the force appeared to share the view that the issue of whether the accused would get his full pension was relevant. It is reasonable to ask if a civilian in like circumstances would have received similar treatment.

Constable G

The female constable reported the threat to her sergeant who launched an immediate investigation, which was conducted by the Criminal Investigation Bureau. Constable G. admitted sending the message, was arrested and detained until released by a Justice of the Peace on a recognizance with conditions that he have no contact with Constable B. and that he not possess firearms or ammunition. The charge was uttering a threat to cause death or bodily harm.

Constable G. pleaded guilty to a lesser criminal charge of conveying a false message with intent to alarm and was given an absolute discharge. There was no suggestion that the force pressured the Crown to reduce the criminal charge, and the Crown did not support the absolute discharge handed down by the trial judge.

Constable G. also pleaded guilty to five Police Act charges. The penalty for the Police Act charges was a total of 16 days off:

• 10 days off for being found guilty of a criminal offence;
  
• 6 days off consecutive for apparently removing another constable's handcuffs from his locker;
  
• 6 days off concurrent for damaging his own handcuffs;
  
• 2 days off concurrent for failing to report the damage to the handcuffs;
  
• 4 days off concurrent for the unauthorized use of equipment in his cruiser to send the message that was the subject of the criminal charge.
  

Based on the penalty, we agree with counsel's assessment that it is reasonable to assume that the hearing officer considered the threatening message to be scarcely more serious than the Constable's treatment of his handcuffs (Constable G. damaged his handcuffs during an incident in which he handcuffed himself to Constable B).

It took approximately 18 months to resolve the criminal charges and another month to resolve the disciplinary charges. Internal Affairs maintained a review file on this case to no apparent purpose.

Constable JBS

The investigation, conducted by Internal Affairs, involved the victim wearing a device to record a conversation with the Constable. A review of the tape indicated there was evidence to meet the standard of reasonable and probable grounds that a criminal offence had occurred. Internal Affairs found the complaint to be substantiated, but the investigators said the victim agreed to cooperate with a Police Act proceeding only.

The Constable was removed from duty and interviewed by Internal Affairs. He gave a full statement and offered to resign. He resigned the same day. No charges were laid. The Crown was not consulted, as required by force regulation.

After his resignation, JBS applied to the OPP for employment. The Metropolitan Toronto force refused to supply the OPP with any work information or the reason for his resignation. His personnel file listed resignation for "personal reasons". He was hired and later dismissed by the OPP.

Counsel tried unsuccessfully to interview the victim and the Constable in this case.

Reasons for Concern

The submission on behalf of Jane Doe asks in relation to the investigation and prosecution of crimes against women (p. 10). "What role do outmoded and discredited attitudes toward domestic violence and pressures and sexual harassment of women, whether prostitutes or not, play in the exercise of discretion in these (Whitehead and Junger) cases? The cases documented in the Story Submissions and Summary do not answer these questions but rather reinforce the concern."

Like the Whitehead case, the matter of Constable JBS involved allegations of sexual assault which were substantiated. There were reasonable and probable grounds for laying criminal charges, and charges were not laid. The force's reply is that the victims did not want to proceed with criminal charges. But what support was offered to them to encourage them to cooperate? Jane Doe asked to testify in criminal court when she recovered, with no result. Was the victim in the Constable JBS case given a chance to recover and reconsider?

Investigators dismissed Jane Doe almost from the beginning as a credible witness; however, she appeared as a credible and relatively composed witness before this Inquiry.

The treatment of a female witness was also a factor in the Junger matter. Although Roma Langford had asked the investigators not to tell Junger of her involvement in his arrest and although she had expressed some fear of Junger, they told Junger it was Langford who reported him. After Junger's arrest, Internal Affairs was told that Junger had breached his recognizance by associating with Langford. Instead of recognizing that this breach could endanger the case against Junger by exposing the witness to potential pressure from the accused, Internal Affairs treated it as a domestic situation in which they did not wish to interfere.

After Langford and Junger got together again, Langford went to Junger's lawyer and retracted her statement that the narcotic belonged to Junger. No effort was made to establish whether Langford had felt pressured by Junger to change her story. The investigators concluded their case was lost.

It has not gone unnoticed that the force was adamant about getting rid of an officer accused of prostituting himself, and did not have the same level of concern about an officer accused of sexual assault and extortion of a prostitute. Counsel for Jane Doe alleges that "stereotyped beliefs play a significant role in the assessment of the credibility of women complainants, and the seriousness of offences against women." (p.15)

Our mandate does not encompass inquiring into the state of investigations and prosecutions into crimes against women. However, there has been sufficient concern raised at this Inquiry that would lead us to ask the question: How are female victims, particularly victims of sexual crimes, treated by the police and the justice system? How can police forces be more effective in gaining the cooperation of victims?

Women view a court hearing on sexual assault as another ordeal to be endured. But with greater support and understanding from the police, as well as others, more of them will come forward to testify.

Confidentiality

During the Inquiry, Chief McCormack apologized to Jane Doe for the lack of communication and for risking disclosure of her identity. He said steps had been taken to ensure that the force in future will advise victims of disciplinary proceedings, and that names of accused officers are now posted outside the Tribunal office. The Chief said that confidentiality of names would be protected better in future.

To avoid a repetition of what happened to Jane Doe, the Police Services Board should implement a clear-cut policy requiring that all complainants be advised of the status and timing of the disciplinary process. Victims must be assured that they will have the right to ask the hearing officer to protect their anonymity and to hold the hearing in camera.

Having the option of an in-camera hearing will not necessarily prevent a recurrence of what happened to Jane Doe. The Metropolitan Toronto force will have to demonstrate by its actions in future that it is sensitive to the vulnerability of victims, particularly where the alleged offender is a police officer, and mindful of the need to protect anonymity in certain cases.

In a criminal prosecution, the law offers a means of preventing publication of the names of victims of sexual crimes at a preliminary hearing or trial. However, it is not currently within the authority of a Justice of the Peace to issue a non-publication order when a charge is first laid. Protection from publication of names of victims of sexual crimes should be available throughout the process. We would like to see this matter studied by the federal Justice Minister.

Task Force

Police forces should be interested in ways of ensuring that more cases go to court. It is frustrating for police to substantiate that an offence has been committed and not be able to proceed because of the reluctance of the victim. For the victim, the longer-term consequences of avoiding facing the accused can be devastating.

We recommend that a task force be established by the Attorney General to develop practical means of supporting victims so as to encourage their cooperation in testifying against perpetrators of sexual crimes. The findings of the task force should help police forces to prosecute more sexual assaults successfully. The task force should not be limited to cases where the accused is a member of a police force, but it should give special consideration to that aspect of the issue.

Based on the practical measures developed by the work of the task force, all Police Services Boards should develop strategies to support victims of sexual assault and encourage their cooperation in prosecutions. Special consideration should be given to cases where the accused is a police officer.

Once these strategies are in place, all Police Services Boards should develop policies for the vigorous prosecution of all sexual assaults. The measure of success of these initiatives should be when sexual assault is prosecuted in every case where there are reasonable and probable grounds to lay a charge.

Recommendation 17

Recommendation 18

Recommendation 19

Recommendation 20