Ottawa Police Service
Professional Standards Unit
Investigative Report
Complainant:
Complaint Number:
OIPRD Number:
Genevieve Carroll 21 -0702
Investigator: 210013531
Sergeant Jason Arbuthnot
Date:
February 8, 2022
Investigative Report
Summary of the Complaint:
The complainant filed a sexual assault report with the Ottawa Police in November 2018 and gave an interview to the respondent officer (ROI) in January 2019. No witness interviews were done despite the complainant providing R01 with their names. R01 then concluded the case stating a criminal offence had occurred but there was insufficient evidence to proceed with charges. The complainant does not believe ROI conducted a full and proper investigation.
PARTII
Code of conduct allegation:
Misconduct, Police Services Act, Ont. Reg. 268/10
Allegation #1
Neglect of Duty s.2(l)(c)(i) in that she, without lawful excuse, neglects or omits promptly and diligently to perform a duty as a member of the police force of which the officer is a member. if the officer is a member of an Ontario police force as defined by the lnterprovincial Policing Act. 2009.
It is alleged R01 did not conduct a thorough investigation into the complainant sexual assault allegations.
PARTIH
Summary of Statements of complainant and police witnesses:
Complainant: 0 0
Genevieve Carroll filed a complaint with the Office of the Independent Police Review Director (OIPRD) on May 13, 2021 and later participated in a video-recorded interview with the investigator. The following information was obtained:
She and other members of her family owned a construction company called DenTemp Contracting + Inc. They were contracted by Ottawa Community Housing (OCH) from 2010-2018 for renovations and repairs to rental units. Their company prospered for many years.
DenTemp Contracting employees were predominantly family members, most of whom were women. Sexual harassment by male OCH staff members toward the complainant and her female employees began almost immediately in 2010 and persisted until OCH cut ties with her company. During this same period. several of these OCH men also made many sexual advances toward her.
The complainant expected to encounter some challenges working in a male-dominated environment and tried her best to endure the sexual advances and remarks from OCH staff for the sake of the family business. However, she eventually came to believe the incidents of unwanted touching were sexual assaults.
She witnessed her other female employees/sisters receive similar treatment.
Investigative Report
The complainant described occasions where these men massaged her shoulders. her arms, her hands and touched the small of her back. This would almost always be done under the context of sexual advances, propositions or vulgar sexual connotations and/or remarks. The complainant rebuffed them and would often simply walk away. On occasion, the complainant’s brother intervened and told the OCH men to stop touching her.
The level of harassment and touching reached levels where the complainant ordered her female employees reporting to job sites to remain in their vehicles until such time as OCH staff members the buildings. Only her male employees would enter to start working. Further, the complainant had to ensure some of her male workers were always on jobs sites with the female workers to ensure their safety.
In February 2018, the complainant retained a civil lawyer to address her concerns about ongoing sexual harassment from certain OCH staff members. In response OCH hired a third-party investigator. who interviewed the complainant and involved family members/employees. The complainant alleges it was around this time OCH began cutting back on contracts and over-scrutinizing completed work to find reasons to withhold payment.
In November 2018. the 3rd party investigation concluded certain OCH employees did expose the complainant to inappropriate behaviour, vulgar jokes and discriminatory comments. Further, OCH acknowledged the complainant did report the harassment to a Property Manager, but this individual failed to escalate the complaints to the appropriate people within the organization. The complainant maintains the involved OCH employees faced no consequences for their actions.
In late November 2018, the complainant filed a sexual assault report with the Ottawa Police. The investigation was assigned to R01 who conducted a video statement with the complainant in January 2019. On the date she gave her interview, she also provided ROl with a list of the OCH staff members who she accused of sexually assaulting her along with other supporting documentation such as a timeline of events, typed notes from the third-party investigator and business records. When ROl later contacted her to advise the case was to be closed because of a lack of evidence, the complainant learned none of the witnesses or suspects whose names she had provided had been interviewed.
stafi’
The complainant later reviewed the police report and felt it did not accurately portray the information she provided to R01 in her interview. Specifically, when ROI wrote the unwanted touching by OCH was done in the context of the complainant “physically working hard”, the complainant had reported the unwanted touching was almost always accompanied by sexual remarks or advances. She also felt ROI appeared to place blame on her for allowing the unwanted touching to continue for as long as it did. and disagreed with the officer’s assessment that a reasonable observer would not believe her sexual integrity had been violated under the circumstances.
The complainant would have accepted ROI ’s decision to not proceed with charges had she interviewed the suspects and witnesses. However, she does not accept the case being closed due to lack of evidence when R01 did not conduct a full investigation.
Investigative Report
In 2020, the complainant emailed the Office of the Chief of Police to request a review of R01 ’s investigation be conducted.
In 2021, she made a complaint to the OIPRD.
Witness Officer #1 (W01): W01 was provided a copy of the OIPRD complaint and required to submit a written response.
He was temporarily assigned as Staff Sergeant to the OPS Sexual Assault and Child Abuse Unit from June 2020 to December 2020. While in this capacity, he was tasked by his Inspector to conduct a file review of R01 ’s investigation after the Office of the Chief received an email about it from the complainant.
The investigation was about the complainant’s sexual assault allegation which occurred while her company was subcontracted to OCH.
He reviewed all reports and attachments on file through the lens of whether the actions and behaviours [of the OCH staff] constituted a criminal offence and, if so, whether reasonable grounds existed to proceed with charges.
He agreed with ROI ’5 conclusions that reasonable grounds did not exist to charge and that the allegations made by the complainant about OCH appeared to be sexual harassment and inappropriate workplace behaviour.
He emailed his conclusion back up his chain of command.
Subsequently, he was asked for a written response after the complainant her concerns to the OIPRD.
PART IV
Summary of Statements Respondent Officer(s):
Respondent Officer #1 (R01): R01 is a detective in the OPS Central Criminal Investigations Unit. She provided a written response to the complaint and later participated in a directed interview:
Compelled Response:
Her investigation of this matter consisted of reviewing the complainant’s initial written report to police, phoning her to obtain an overview and determining how she wished to proceed, an interview with the complainant, a review of the supplied documents, a query of the subject males and consultation with other investigators.
She considered interviewing the people listed by the complainant however, most of their evidence was included in the documents which were provided. She saw no value in interviewing two others - an employee and a third party, who she felt had limited observations.
The complainant depicted her sisters not only as witnesses but also as victims. R01 did not believe it prudent to conduct additional interviews with victims if not required.
In consultation with her supervisor, R01 determined there was not enough evidence to move forward with the investigation, nor proceed with criminal charges.
Investigative Report
In comparing what the complainant stated across various forums (initial police report, lawyer’s letter, third party investigator and formal police interview) the allegations appeared to progress from workplace harassment to sexual assault.
The most egregious sexual acts alleged by the complainant was about her shoulders being rubbed followed by a comment [by one of the OCH men saying the shoulder rub] would be better if she was topless. Other allegations of unwanted touching involved the complainant having her arm, hands and lower back touched.
ROI paraphrased the Sexual Assault section of the Criminal Code as ‘an application of force that is not consensual and in the circumstances of a sexual nature’. And while she provides that grabbing is specifically laid out in the Assault section, this was done in the context of the men commenting on the physical nature of her job and her fingernails.
ROl summarized the evidence as: cements of a sexual nature; looking down the complainant’s top; saying women did not belong on the job site; thrusting motions and smelling the chair the complainant had been sitting on. ROI referred to the Criminal Harassment section of the Criminal Code which indicated the suspect ought to know another person is being harassed and their conduct would be such that they cause the other person to fear for their safety. Further, the section outlines [the suspect demonstrates] repeated following, communicating, besetting or threatening conduct.
Throughout the ten years in which the complainant alleges this type of harassment but did not report it. she indicated in her statement she and her family members would laugh it off, walk away or avoid certain work sites.
R01 indicated there was no clear demarcation during this ten-year period where the complainant made it known to the subjects that their behaviour was unwanted or whether it was making her fearful. Further, ROI concluded their conduct would not be considered so reckless that the subjects ought to have know it could cause fear.
R0] was aware the complainant had commenced civil litigation and believed this was an appropriate course of action.
She advised the complainant the file was being closed because she did not believe it met the threshold of laying criminal charges.
Directed Interview (excerpts):
R01 has worked as an investigator in the Criminal Investigations Unit for four years. She attended the sexual assault investigator’s course in 2015 but at the time she was assigned this file, she had limited experience with these types of investigations.
Based on her interview with the complainant and the documents she was provided with, she did not believe the allegations amounted to a strong case. The alleged incidents occurred over a ten-year period and the eventual report to OPS coincided with recent civil litigation which the complainant brought against OCH.
She explained her decision not to speak with the complainant’s witnesses was two-fold; the first reason was because they were mostly all family members and perhaps not truly independent. In hindsight, she appreciates witnesses, regardless of perceived bias, still need to be interviewed. The second reason was predicated on the third-party investigator having already interviewed the witnesses, and the information which was obtained provided no added evidence of a criminal offence. ROl now understands the interview format used by the third—party investigator an informal round table discussion with all witnesses addressing a range of employment-related issues with OCH is not
Investigative Report
suitable in a police investigation and that each person ought to have been spoken to individually and strictly in the context of criminal allegations.
She did not believe there was much likelihood of gaining evidence from the five OCH men who the complainant identified because she understood they were not compelled to give statements to police as suspects in a criminal investigation. R01 now agrees it forms part of a thorough and professional investigation to inform people in these circumstances of their jeopardy and to offer them an opportunity to come forward to provide a voluntary, cautioned statement.
Once the sexually explicit and sometimes graphic context accompanying the OCH men repeatedly touching her shoulders, arms and back were explored in detail, ROI acknowledged the complainant's sexual integrity was violated by their actions and interviews were warranted at the time.
R01 now understands that even if her investigation led her to insufficient evidence to support criminal charges, the OCH men still could have been formally warned, [also known in police nomenclature as “Processed By Other Means”] rather than never having been contacted at all about this matter and closing the investigation due to insufficient evidence.
ROl sought the advice of colleagues before concluding this investigation in 2019 however, she now realizes she received incorrect guidance. She would now do things differently under similar circumstances.
PART V Investigation:
Genevieve Carroll filed a complaint with the OIPRD on May 13, 2021. The file was assigned to Sergeant Jason Arbuthnot of the Professional Standards Unit for investigation on September 28, 2021. In addition to the information in Part IV, Sergeant Arbuthnot reviewed the following materials during his investigation:
Section 42( 1) of the Police Services Act:
The duties of a police officer include preserving the peace, preventing crimes and other offences, assisting victims, apprehending criminals and other offenders, laying charges and participating in prosecutions. executing warrants and performing other duties which the police chief assigns.
lawfiil
Ottawa Police Policy 5.29 (excerpts) Sexual Assault:
Pursuant to section C of the Procedures portion of this Policy,
(1) When notified of a sexual assault, investigators will ensure all necessary preliminary investigative steps have been taken (i.e. obtaining witness information and statements...)
(13) Take charge of the follow-up investigation, as follows:
(a) obtain subsequent victim/witness statements as required.
Section 265 of the Criminal Code of Canada Assault
Investigative Report
(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to his purpose; or
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
Annotations in section 271 of Martin Criminal Code of Canada Sexual Assault
“Sexual assault is an assault, within any one of the definitions of that concept in s.265( 1), which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: whether viewed in light of all the circumstances the sexual or carnal context of the assault is visible to a reasonable observer. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force. will be relevant."
Ontario Human Rights Code Sexual Harassment
Sexual harassment is engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome. The OHRC provides that every person has the right to be free from discrimination in the workplace based on sex, which includes sexual harassment, and can include:
asking for sex in exchange for something, like offering to improve a test score, offering a raise or promotion at work, or withholding something like needed repairs to your apartment asking for dates and not taking “no” for an answer demanding hugs making unnecessary physical contact, including unwanted touching using rude or insulting language or making comments that stereotype girls, women, boys or men calling people unkind names that relate to their sex or gender making comments about a person’s physical appearance (for example, whether or not they are attractive) saying or doing something because you think a person does not fit sex-role stereotypes posting or sharing pornography, sexual pictures, cartoons, graffiti or other sexual images (including online) making sexual jokes bragging about sexual ability bullying based on sex or gender efi°ect
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. online).
spreading sexual rumours or gossip (including
Records Management System (RMS) case# 18-290233:
RMS is the police records system that contains, amongst other information, the detailed reports entered by officers involved in an incident. RMS also allows for officers to query people, addresses, vehicles and businesses in order to ascertain any previous involvement with Ottawa Police, and are referred to as queries.
ofien ‘in-house’
Initial Police Reporting Unit (PRU)
ream:
On November 22. 2018. the complainant telephoned the Ottawa Police Service (OPS) and reported sexual assaults spanning a period of ten years during her employment as a construction contractor with Ottawa Community Housing (OCH). The sexual assaults occurred at four different OCH locations and involved allegations about male OCH employees groping and touching her inappropriately. When the complainant reported these incidents to OCH in February of 201 8, they cancelled her company’s work contracts. However, OCH did hire a investigator and, though the final report was not released to her. the complainant believed some of the male employees were found ‘guilty’.
third-party
The complainant named and described the five involved OCH employees in addition to providing the names of seven others most of whom were her family members working for the construction business - who were witnesses.
ROI ’s investigative report:
ROI was assigned the investigation and first contacted the complainant on November 26, 2018. In recounting the events over the preceding ten years during her contracted employment with OCH, the complainant described that while she originally believed the OCH suspects had sexually harassed her, she came to realize the unwanted touching was in fact sexual assault. Further, she had been reluctant to report these incidents for fear of retribution or dismissal.
In February of 2018, the complainant retained a civil lawyer who drafted a letter [to OCH] outlining ‘significant sexual harassment and gender discrimination’, as well as ‘unwanted touching’. The complainant explained to R0] the unwanted touching took the form of having her shoulders, legs or other parts of her body rubbed, with the OCH suspects saying they wanted to see her muscles. The legal letter proposed steps to remediation, including; a third-party hired to investigate harassment and gender discrimination; that OCH communicate to staff its intolerance of gender-based discrimination and; that no reprisals be taken against the complainant. There were no references to sexual assault in the letter. Subsequent email communication between the complainant and her civil lawyer in November of 2018, and provided to R01, suggested the third-party investigation had concluded with findings she had indeed been subjected to ‘inappropriate behaviour, vulgar jokes and discriminatory comments’
Investigative Report
R01 informed the complainant that if she wanted criminal charges laid, police would conduct their own investigation and not rely on the OCH report, which was unlikely to be released to OPS. Conversely, if the complainant did not want criminal charges, ROI would close the file. At the time, the complainant was uncertain how to proceed because her company had already lost all their OCH contracts, and she was reluctant to unnecessarily involve her family in this matter.
On December 5, 2018, the complainant informed ROl she wished to proceed with the sexual assault investigation. An in-person interview was conducted on January 3, 2019.
R01 reviewed type-written notes of the third-party investigator (supplied by the complainant) from her meeting with the complainant and her family which included references to lost wages and sexual harassment toward female workers. The only reference made about one of the suspects involved him being a and mostly toward the complainant. The women often off the comments and behaviours they were subjected to.
"toucher”, “laughed
‘time-line‘ vis-a-vis
R01 reviewed a document prepared by the complainant as well as a list of OCH staff whose behaviours the sexual assault allegations were described as ‘touchy’. with references to shoulder rubs and suggestions they would be easier if the complainant removed her shirt.
On January 10, R01 spoke with an OCH official who declined to supply her with the third-party report without judicial authorization, because the case was subject to civil litigation.
On January 19, 2019, R01 made RMS queries of all the OCH staff who were named as subjects in the sexual assault investigation however, some of the returning information was inconclusive [due to insufficient identifiers].
Later the same day, R01 telephoned the complainant to inform her there was insufficient evidence to proceed with any criminal charges. With respect to the sexual assault allegations, ROl wrote the complainant reported being touched on the shoulders and hands [by OCH staff] in the context of how hard she was working on the job site and that she never told them to stop. ROl concluded she did not believe a reasonable observer would feel the complainant’s sexual integrity had been violated. ROI further determined criminal harassment charges were not supported by the evidence because the incidents occurred over an eight-year time frame, involved many people and only a few examples of harassment were provided by the complainant for each subject.
PART VI
Analysis:
Allegation #l Neglect of Duty s.2(1)(c)(i) in that she, without excuse, neglects or omits promptly and diligently to perform a duty as a member of the police force of which the officer is a member, if the is a member of an Ontario police force as defined by the Interprovincial Policing Act. 2009.
2019, lawfirl officer
It is alleged R01 did not conduct a thorough investigation into the complainant ’s sexual assault allegation.
Investigative Report
ROl actioned this investigation shortly after the complainant made her initial police report. obtaining some additional information and a commitment from the complainant that she would support a prosecution, R01 arranged soon for her to provide a sworn video statement at the police station. The complainant provided ROl with her documentation she believed might provide added context to the criminal investigation. These documents were related to a civil action she and her family commenced against Ottawa Community Housing (OCH) in the spring of 20 l 8. They alleged OCH cut ties and cancelled contracts with her construction company she reported to their management years of workplace sexual harassment by her and female employees at the hands of male OCH staff members. Among the documents were type-written notes from a third-party investigator who was hired by OCH upon being made aware of the allegations. Although the complainant was never provided with a copy of the final report, she alluded to the third-party investigator having made findings of ‘guilt’. Nonetheless, ROl informed her she would conduct her own investigation because OCH was unlikely to release a copy to her without judicial authorization.
The complainant explained her construction company prospered for many years due to their contracts with OCH. Although the company employed her father and brother, most of its workforce were female members of her family. The complainant described how, as a contractor, her shared workplace with male OCH staff members quickly developed into a sexually charged environment. Her allegations involved unwanted touching of her lower back, shoulders and arms in the context of a sexual nature. The allegations shared similar characteristics to workplace sexual harassment, which is not something typically investigated by the police. The complainant decided to report criminal allegations to OPS because she came to believe some of the sexual harassment which she and some other female employees of her construction company endured crossed the threshold from civil to criminal.
The complainant provided ROI with the names of several OCH men who subjected her and other female employees of her company to years of unwanted touching accompanied by explicitly vulgar and misogynistic, language. The complainant provided details of repeatedly having her shoulders, arms and small of her back rubbed or massaged with unmistakable sexual propositions and/or overtones. Because these incidents occurred over a period of years, the complainant did not provide R01 with specific dates, times or locations but rather described the events in general terms. She gave R01 a list of witnesses, most of whom being family members, who she could contact for more information. One witness included the complainant’s sister, who reportedly endured the same type of treatment from the same individuals.
R01 discussed with the complainant the criminal offences which were potentially applicable to her allegations. R01 considered but dismissed Criminal harassment because of the length of time (almost a decade) the complainant had endured the treatment before reporting the behaviour to OCH management and OPS. Assault was also considered because of the unwanted touching. Lastly, ROI explained that for the offence of sexual assault to be made out, it would be necessary to prove the
Investigative Report
complainant’s sexual integrity had been violated in conjunction with unwanted touching. This is the Criminal Code standard which must be met in order for this charge to be laid.
Following the interview, ROI reviewed the supplied documentation regarding the pending civil litigation, including the type-written notes from the third-party investigator’s meeting with the complainant and her family/employees, legal correspondence between her civil lawyer and OCH about the alleged sexual harassment and a summary sheet of what each suspect was reported to have done. ROI concluded there was insufficient evidence to proceed with criminal charges against the OCH men. She did not believe the Criminal Code standard for a sexual assault charge that in the circumstances of a sexual nature, that the complainant's sexual integrity had been violated had been met. Further, ROI decided there was unlikely to be any additional evidence gained by interviewing the OCH men or the complainant’s family members/employees.
ROI closed the investigation with the RMS Concluding Report “Insufficient Evidence to Proceed”, which included the templated explanation. .a criminal offence had occurred, however, due to insufficient or conflicting evidence, police cannot substantiate laying a charge”.
The OPS Sexual Assault policy police officers in these investigations to take preliminary steps to obtain victim and witness statements as required. This policy is consistent with the “Duties of a Police Officer” found in the Police Services Act, specifically apprehending criminals and participating in prosecutions. Though R01 did interview the complainant, she did not seek statements from the identified witnesses. Instead she relied, in part, on the notes of the third-party investigator to inform her on what these witnesses might say. Upon close inspection of these notes, the investigator made it clear in a preamble that she interviewed the complainant and members of her family/employees all together and about broader workplace issues, including but not limited to allegations of sexual harassment. However, criminal investigations require statements be obtained from witnesses individually in order that they may be relied on as evidence.
third-party afterward.
The complainant identified one of her sisters as having been subjected to the same sort of behaviour. However, ROI stated she chose not to interview her because the third-party investigator had already done so and therefore, she did not wish to ‘re-victimize a victim’. This decision might have been sustainable had the sister already been interviewed by a police officer, but this was not the case. Similarly, other witnesses (family members/employees) were not asked for statements, including the direcrs
ROI told the investigator she was unsure whether she could rely on the complainant’s family/employees to be independent witnesses and therefore, chose not to interview them. However, assessment of a witnesses’ objectivity and reliability is done in every investigation, and generally after a statement is taken. Police still have a duty to obtain as much evidence as possible over the course of an investigation, with the evaluation of the strengths and weaknesses occurring
Investigative Report
complainant’s brother, who reportedly intervened on her behalf by telling the OCH men to stop touching her.
ROl did not notify the OCH men whom the complainant named as the subjects of her sexual assault allegations. She explained it was her belief the OCH men were unlikely to provide statements to police about the allegations due to their jeopardy. and the fact they were not compellable.
While there are no OPS policies which require an officer to attempt to take a cautioned statement from subjects in every case, doing so is accepted to be a good practice if it will advance the investigation. In this case, there were no recordings of the OCH men touching the complainant and, given the inherent nature of the allegations (unwanted touching). a lack of physical evidence as well. In other words, taking proper statements and/or conducting interviews was important. Based on the information gained from complainant’s interview and the supporting documents she provided, there remained much work for to do in order to ascertain whether the allegations against the OCH men warranted charges, or whether it was a non-criminal but exceedingly bad case of sexual harassment in the workplace. However, when R01 opted not to take statements from the other witnesses and the subjects. the investigation was over.
reviewed the case prior to the complainant making her report to the OIPRD. This included a review of the reports and attachments on the RMS file to ascertain whether the actions or behaviour of the subjects constituted a criminal offence. WOl concluded the allegations did not rise to this threshold. However, WOl did not watch the interview, which contained a fulsome account of the unwanted touching within the context of a sexual nature. Further, R01 ’s report did not contain a fully detailed account of their discussion. This is not to suggest criminal charges could have been brought against the subjects, but rather the review relied on incomplete information. It is conceivable, but not inevitable, that statements from witnesses and subjects might have been more helpful to WOl in reaching his conclusions.
There are reasonable grounds to believe R01 neglected her duty by failing to interview identified witnesses and subjects before closing the complainant’s sexual assault investigation for reasons of insufficient evidence. As a relatively new investigator who was not specialized in the area of sexual assault, and, with incorrect guidance from colleagues, R01 made the decision to forego obtaining witness statements or from contacting the subjects about this matter. She relied, in part, on the notes of the third-party investigator to inform her on what the witnesses might say rather than taking proper statements from them. With hindsight, R01 has acknowledged her error and will not repeat it again. Subjectively, ROl believed this case was one of workplace sexual harassment as opposed to the crime of sexual assault. Objectively, more work was needed before reaching this conclusion and the investigation ought to have continued until the evidence had been obtained and evaluated.
WOl’s witnesses'
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The allegation is substantiated.
PART VII
Conclusion:
Allegations of misconduct are treated very seriously by the Ottawa Police Service. This matter has been thoroughly investigated by the Professional Standards Unit. After a careful review and analysis of the facts, the investigator has concluded there is sufficient evidence to establish reasonable grounds to believe misconduct occurred on the part of R01. For this reason, the allegations are substantiated.
Investigator
Sergeant Jason Arbuthnot
Supervisor/Manager / #1593
A/Staff Sergeant Mireille