By Anne-Marie Langan B.A., B.S.W. LL.B., LL.M.
In Leach v. Ontario (Solicitor General the Human Rights Tribunal of Ontario (HRTO) made a precedent-setting finding that the Ontario Provincial Police (O.P.P.) “breached the applicant’s Code protected rights on the grounds of sex” during a police interview. In coming to its’ conclusion that the police discriminated against Ms. Leach in the provision of services the Tribunal confirmed that Ms. Leach is “a member of a group protected by the Code, namely women who report sexual harassment and sexual assault”.
A large number of legal clinic caseworkers involved in the SHAPE (Sexual Harassment Advice Prevention and Education) project and other clinic staff attended the last two days of the hearing. SHAPE is a coalition of 20 Ontario community legal clinics providing free public legal education and summary legal advice to prevent and address workplace sexual harassment. These clinics have also taken up public legal education and systemic reform efforts on this important issue. Part of this is educating tribunals by bringing the issue forward and advocating for people in this situation who previously had trouble finding affordable representation. Since HRTO hearings are relatively rare and almost always virtual it was also a learning opportunity for those caseworkers who have not yet had an opportunity to participate in one.
During the interview in question, Ms. Leach reported two incidents of sexual assault that she had experienced, one of which was previously reported to a male O.P.P. officer. She had specifically requested to be re-interviewed by a female officer, as is her right pursuant to the Victim Bill of Rights. The male officer who had taken her report had not taken it seriously. She was hopeful that a female officer would be better able to understand her experiences and would take action.
Regardless of the reasons for Ms. Leach's requesting a police officer, as someone reporting sexual assault, she has a right to be interviewed by a person of the same sex according to s. 5 of the Victim Bill of Rights which states:
5. Victims of sexual assault should, if the victim so requests, be interviewed during the investigation of the crime only by police officers and officials of the same gender as the victim.
Instead, Detective Sargent Watkins, who at the time was the head of the Major Crimes Unit for the Eastern Region, refused her request to be interviewed by a female officer. When he called to arrange the interview, he informed Ms. Leach that he would do the interview with the assistance of a fellow officer, Detective Constable Saunders. As described by the Tribunal, Detective Saunders “essentially deferred at all times to the more senior male officer, did not engage in the questioning of the applicant, and did not respond in a supportive manner to the requests made by the applicant about the actions of the male officer and his questioning of the applicant”.
Ironically, during her testimony, Detective Saunders presented herself as an expert in trauma-informed interviewing. She testified that she had trained her fellow officers in how to conduct a trauma-informed sexual assault interview and had years of experience conducting these types of interviews. Neither she nor Detective Watkins could provide a valid reason why he had conducted the interview when Detective Saunders was available or why Detective Saunders sat passively by while Detective Watkins asked all the questions. According to the Victim Bill of Rights, Detective Watkins ought not even to have been present in the room during Ms. Leach's interview.
The Tribunal points to several other factors that supported their finding that Ms. Leach was discriminated against by Detective Sargent Watkins during the June 13th interview including, that his telephone rang three times during the interview, he sat opposite Ms. Leach with his legs spread apart, he “played” with his glasses between his legs on and off throughout the interview and he touched the evidence she had brought with her with a look of disgust on his face as if they were contaminated with “cooties”.
Detective Watkins also asked several questions during the interview that were inappropriate in a sexual assault interview as they could easily be interpreted as assigning the blame for the assault on the victim rather than the perpetrator. For example, he asked what Ms. Leach was wearing when one of the assailants had placed his hand between her legs when she was a passenger in his vehicle. He also questioned whether Ms. Leach was in a “compromising position” in a photograph. Ms. Leach described how these behaviours and questions made her feel “she was not believed that she was disrespected and that she was ultimately blamed for the circumstances that led to the interview...”
The Tribunal also commented on the stark contrast between the cold unsupportive treatment by the two detectives during Ms. Leach’s interview and the way they treated one of the alleged perpetrators during his suspect interview. Their discriminatory view of the Applicant was very evident during the perpetrators’ interview. The Tribunal member summarizes their differential treatment well in the following passage:
I have to note the very different approach taken by D.S. and D.C. Saunders. Ranging from the cordial handshake at the start of the interview, through the agreement that G.B. could record the interview, the discussion of, or at least reference to the “Me-Too” movement between the two men, the reference to the fact that the police have an obligation to respond to the public and even to the “false calls” cited by G.B., as well as explaining that even if Paul Barnardo were to call, they would still have to respond. I must also note D.S. Watkins’ comments to G.B., who suggested that he might file a defamation of character allegation against the applicant, to which the D.S. responded that “you are on the right path” and later that “you may have a case”, and an explanation later about how to get a “peace bond”, all support the alleged differential treatment of G.B. compared to the applicant.
The Tribunal expressed “concern” that in her testimony Detective Constable Saunders used the fact that Detective Sargent Watkins was her boss as an excuse for her passive behaviour throughout the investigation even though she was listed as the lead investigator. Detective Watkins had disregarded the detailed summary of the evidence that Detective Saunders had prepared for a senior Crown. Instead, Detective Watkins proceeded to go speak to another, less experienced Crown in Detective Saunders’ absence to seek an opinion on whether the offences had any likelihood of conviction. The result was that neither of the assailants was charged.
In summary, the Tribunal noted the following factors were determinative to its finding of discrimination:
· The applicant is female and most victims of discrimination on the grounds of sex are female;
· The applicant was treated differently from the treatment experienced by the alleged assailant when they were interviewed by the same police officers;
· The applicant was not offered the support of a victim services support person for the interview;
· The applicant was not provided with the option of being interviewed by a female police officer, as directed by the Ontario Victim Services Bill, even though an appropriately trained and experienced female police officer was available to do so;
· The reference to the “Me Too” movement, while not directly raised by the police, but accepted by the police, and the reference to the police’s obligations regardless of who contacts them, i.e., the reference to Paul Bernardo, again support the assertion of discrimination;
· The exclusion of the female police officer from the discussions with the Crown Attorney about laying charges against G.B. based on and arising from the applicant’s assertions, also further supports the allegation of differential treatment and discrimination.
This will hopefully be an important precedent for use by the many victims who have had similar negative experiences in reporting sexual assault to police, thereby holding the police accountable for their discriminatory behaviour towards victims of sexual assault and perhaps even inspiring them to do better in the future. This case demonstrates that legal clinics can make a significant difference by working collaboratively through projects like SHAPE on systemic reform and by supporting each other in bringing forward precedent-setting cases like this one.
 Leach v. Ontario (Solicitor General), 2023 HRTO 1339 (CanLII), <https://canlii.ca/t/k022l>, retrieved on 2023-09-13 at par. 5.  Supra, note 1, par. 47  Victims' Bill of Rights, 1995, SO 1995, c 6, <https://canlii.ca/t/55gqc> retrieved on 2023-09-13  Ibid., note 1  Ibid., note 1 par. 60.  Ibid. note 1, par. 67  Ibid note 1 par.72