Against Unfounding: Sexual Assault Investigation & A Proposed Class Action Against Police
This post discusses the constitutional challenge recently brought by sexual assault complainant Ava Williams against the London, ON Police Services (“LPS”). The applicant alleges that the police force engaged in gender-based discrimination contrary to Charter section 15 for relying on stereotypes about gender and sexual assault complainants while investigating her case, resulting in her claim being dropped (“unfounded”). The applicant claims both private and public interest standing, bringing the challenge both on her own behalf and on behalf of all sexual assault complainants whose claims were unfounded by the force between 2010 and 2017 (approximately 30% of claims). Ms. Williams has retained constitutional counsel Joseph Arvay, Q.C. (Bedford, Carter, Andrews, Egan) as counsel. This post discusses the case. It also analyzes the pros and cons of pursuing the claim, and Charter discrimination claims generally, as a class action as opposed to a named party suit.
In March 2017, sexual assault complainant and law student Ava Williams launched a Charter challenge against the London (ON) Police Service (“LPS”). Ms. Williams alleges that while at an undergrad party in 2010, she was sexually assaulted by another student. She reported the incident to police immediately, but the investigating detective at the police station declared her claim “unfounded.” “Unfounding” is an official police classification rendering an allegation groundless in law. The force stopped investigating Ms. Williams’s claim.
In her Statement of Claim, Ms. Williams alleges that London police personnel, and in particular the officer who interviewed her immediately post-assault, engaged in gender-based discrimination contrary to her Charter section 15 rights by relying on statutorily prohibited stereotypes about gender and sexual violence while assessing her claim. The Claim alleges that the interviewing officer’s reliance on the following assumptions contributed directly to his decision to unfound her case:
- “women who consume alcohol are more likely to consent to sex”
- “women often lie about rape as a consequence of post-sex regret”
- “women who engage in consensual kissing are more likely to consent to oral sex or sexual intercourse with men they just met”
In terms of remedy, Ms. William seeks a declaration that the LPS’s investigatory practices around sexual assault allegations from 2010 to 2017 unjustifiably infringed Charter section 15, and claims damages under Charter section 24(1). The applicant also seeks to have the court implement the “Philadelphia Model” to oversee the LPS’s handling of sexual assault allegations in the future. The Philadelphia Model establishes an external review board, now widely recognized as an accountability best practice, to review how police forces handle and pursue sexual assault claims.
Claim for Public Interest Standing
Notably, Ms. Williams’s claim asserts public interest standing as well as private, on the grounds that “the case raises matters of public interest that transcends the interests of the plaintiffs” (Statement of Claim). Ms. Williams seeks acknowledgment of wrongdoing on behalf of all sexual assault complainants who had their allegations unfounded by the LPS between 2010 (the year of Ms. Williams’s assault) and 2017. Her counsel claims that the subject matter of the litigation is of interest to all women who have been subject to the LPS’s allegedly discriminatory practices, “all sexual complainants across the country,” and the general public.
Ms. Williams had compelling reasons to challenge the LPS on public interest grounds. Ms. Williams was the key figure in the Globe & Mail’s 20-month-long investigative report Unfounded, released in February 2017. The report broke new ground in revealing the rate at which police jurisdictions across Canada dismiss sexual assault allegations. According to the report, which has garnered national attention, the overall unfounding rate of sexual assault allegations in Canada is 19.39%, or 1 in 5 claims. Given that sexual assault is already an underreported crime, the statistics unearthed by “Unfounded” are startling. Statistics Canada estimates that approximately 1 in 10 sexual assault survivors report the event to police. Less than half of reported incidents result in charges being laid, half of laid charges make it to trial, and half of tried cases end in conviction. According to “Unfounded,” the London Police Service’s unfounding rate between 2010 and 2014 clocked in at 30%–one of the highest rates of dismissal in Canada. Given the widespread nature of the issue, Ms. Williams elevated her claim to a charge of systemic discrimination by the LPS in contravention of Charter section 15.
Seeds of a Class Action
Ms. Williams’s Statement of Claim states that the claim is “not yet” a class action, but the seeds of a class proceeding are present in the motion. If multiple plaintiffs who reported their sexual assault claims to the LPS can show that they experienced the same or similar discriminatory conduct being alleged by Ms. Williams, it makes sense to unite the claims. The following section briefly addresses the potential benefits of pursuing Ms. Williams’s claim as a class. It then turns to assessing the viability of forming a class against the LPS in Ms. Williams’s specific case.
Why Seek a Class?
Ms. Williams’s counsel has good reasons for leaving the door open to certify the claim as a class. The class action model provides several tangible benefits for plaintiffs, benefits that are arguably heightened in the context of a Charter class action. Primarily, class actions provide a greater number of plaintiffs with increased access to justice. By turning a claim into a class action, individuals who are not financially situated to bring their own claims against the defendant are given a pathway to the courts. This is particularly important in the context of Charter-based claims, which are notoriously expensive to litigate. Creating a class action around a sex- or gender-based discrimination claim may also have positive social effects. By definition, mass litigation proceedings operate by way of a group of similarly situated people banding together to pursue a common complaint against a defendant. Creating a class around a situation such as Ms. Williams’s may give individuals who chose not to report their experiences of discrimination a feeling of strength in numbers, and may increase the rates of reporting around discriminatory conduct.[It should be noted that the benefits of a class action extend to all players involved in a certification proceeding: the plaintiff, the defendant, and the courts. Defendants benefit financially by not having to re-litigate multiple similar claims. The court system benefits by avoiding expending limited judicial time and resources on hearing multiple versions of what presents in law as effectively the same case. The fact that defendants may also benefit from certification of a class raises interesting questions about whether the LPS would resist certification of Ms. Williams’s claim if certification was attempted. Although the claim has not yet approached the certification phase, it is a question to keep an eye on.]
If Ms. Williams’s counsel decides to pursue the class model, the next question is whether the case can meet the certification requirements. In Ontario, class certification is governed by section 5(1) of the Class Proceedings Act, SO 1992 c 6 [CPA]. Broadly speaking, certification requires that the class counsel and class representative (here, Ms. Williams) demonstrate that the case is suitable to be pursued under the class action framework, as opposed to leaving individual plaintiffs to pursue named party suits against the defendant. Indicia of suitability include the presence of common issues among potential class members, availability of a representative plaintiff who can “fairly and adequately” represent the class, and the procedural suitability of certifying a class action as opposed to named party litigation (CPA s 5(1)(a-e).
The common issues requirement for certification (CPA s 5(1)(c)) may pose a unique challenge for Ms. Williams’s case. The proposed common issue in Ms. Williams’s claim is highly specific: namely, that from 2010 to 2017, the sexual assault complainants who had their cases unfounded by the LPS were subject to the same gender-based discriminatory practices as Ms. Williams. Depending on the details of the other cases, class counsel may be able to establish sufficient commonality, particularly if they can gain access to investigation transcripts and argue that the investigating officer(s) engaged discriminatory stereotypes during their interviews with complainants. However, the LPS will likely argue that their officers decided to unfound certain allegations not on the basis of discriminatory thinking, but rather by using their independent judgment to assess the case on a nexus of factors, including complainant credibility and the existence of corroborative evidence. If the LPS is successful in this argument, little will be gained for the plaintiffs by pursuing a class action, as the majority of wrongdoing will be left to be proven at individual issues trials. This was the logic that dealt the fatal blow to certification in R.G. v the Hospital for Sick Children [2017 ONSC 6545], decided in November. In that case, Justice Paul Perell refused certification for a proposed class action related to faulty hair testing at the Sick Kids’ Motherrisk Drug Testing Laboratory, because the claims of the potential class members were too individualistic and could not be said to share a common issue. According to the judgment, a common issues trial would “do little to advance the cause of any plaintiff,” because class members would still have to prove the majority of substantive issues in individual trials.
R.G. is instructive for envisioning a potential barrier to certification for Ms. Williams’s case, and whether it can be overcome. Regardless of whether the case proceeds as a class action or named party suit, Ms. Williams and her counsel have advanced a unique and admirable case. Whether as a class action or an individual Charter claim, the case has already done significant groundwork in highlighting the problem of discriminatory conduct against sexual assault complainants among police forces. As a result of the investigatory work in “Unfounded” and the subsequent case, as of December 2017 over 400 unfounded complaints have been re-opened in police jurisdictions across Canada.