“Canadian history has been made in this room. Bills have been passed and I am sure all kinds of hell was raised here. I am so proud to live in this country and call it home❤️.”—Emilie R., Model Parliament attendee, reflecting on her civic experience

Summary

After Emilie R. experienced an inexcusably violent alcohol-facilitated gang-rape by two male strangers on Laurentian University campus that they covertly recorded without her consent, the system and university failed Emilie R. more than once. She was a French language teacher and a student at the time of her death, described as someone who loved animals, writing poetry, and helping others—she was always the first to reach in her pockets to help the needy. It is incumbent on all of us to ensure that the rhetoric of intoxication is not appropriated to incriminate conditions of the female body like that of Emilie, whose sexual assault case was re-opened due to campus controversy, then closed once again after unnecessarily subjecting her to secondary forms of aggressive interrogations and bodily intrusions.

The Crown insisted her case was "unsubstantied" due to "insufficient evidence", however critical errors on the part of police and prosecutors were not properly weighted. The non-consensual video of her was presented to police and instead of confiscating the unlawful evidence of gang-rape, the acting officers mocked the state of Emilie and made sexually inapproriate comments about her petite stature and physique. The police seemingly condoned the behaviour of the perpetrators, going so far as to justify their actions by implying she deserved being raped due to her level of intoxication, voyeuristically partaking in non-consensual viewing of the surreptitious recording. This sexual misconduct directly resulted in the spoliation of evidence. How can this be something that the police would do to a beautiful and a promising young woman? 

Specifically, why would they code Emilie’s case as "unfounded" twice and subject her to intolerable levels of scrutiny, intimidation, and interrogation? As it turns out, women like Emilie are being viewed as accident-involved drivers rather than victims of abhorrent gender-based sexual crimes. The Globe and Mail funded epidemological research on "intoxication", using urine samples and toxicology tests to consolidate this misapplied drinking-driving narrative. In terms of the non-consensual video viewing component of the case, it may be necessary to level charges against acting officers for disgraceful conduct and engaging in conduct to the prejudice of good order and discipline pursuant to sections 93 and 129, respectively, of the National Defense Act.

An independent review would help bring forth a number of recommendations to prevent similar fatalities and concurrently legislated rape kit shield laws would limit the scope and use of invasive medico-legal evidence collection processes associated with the development of feminine bodily comportment. Imposing bail-like conditions on sexual assault victims to punish them in advance for not meeting alcohol and drug abstention conditions is manipulative. As forewarned in the Supreme Court of Canada in R. v. Zora, alcohol and drug use is increasingly viewed through target mental health conditions at the pre-trial stage. This effectively punishes individuals who are presumed innocent for recognized health concerns, transforming the mental element of self-induced intoxication into a “blameworthy predicate act” and exercise of free will at the culpability stage where the crime is said to have been "committed". In summary: 

1. There is a need to prevent rape case overreaching by pausing the $2 million ongoing funding to RCMP to re-open “Unfounded” sexual assault cases and to redirect this funding to community groups, such as Rape Crisis Centers. There needs to be a full independent review into the role of the media, Laurentian university, detectives, and prosecutors in the untimely death of Emilie R., who tragically died after her case was reopened.
2. We also need a Rape Kit shield law, as advocated by Dr. Andrea Quinlan of York University to prevent search and seizures of toxicology results to incriminate conditions of the female body as a direct result of provisions of “implied consent” and "guilt" based on blood alcohol science funded by the Licensed Beverage Industries, a major alcohol lobby.
3. The anglo-American temperance movement stressed the immorality of imbibing to the point of intoxication and provides a framework for the cultural scaffolding of rape used to pin criminal culpability for violence on female bodies. This scaffolding involves methods of coercive interrogation intended to invoke defeat, entrapment, and suicide as supposed "proof" that self-induced intoxication is a "blameworthy predicate act", with no mention of the gender-based carnal crime of rape as a causal factor.
4. As one of 1 of the 54 complainants in the Globe and Mail Unfounded series, I ask that that the profiles of women no longer be used as part of the Canadian Police Knowledge Network, without the expressed consent of Emilie R.’s family and the 54 Unfounded participants, especially not without consulting us about how this information is being used: https://www.cpkn.ca/en/course/unfounded-sexual-offences/

I am one of the 54 women that were interviewed as part of the Globe and Mail Unfounded investigation that has been described as offering an unprecedented view into how Canadian police services handle sexual assault cases. There were 36 people who agreed to share their stories publicly with the Globe and the series is credited with causing a major overhaul to public policy throughout Canada. According to an article that was awarded the Nathan Strauss, Q.C. Essay Prize in Legal Ethics at Osgoode Law School, the cumulative effect of the “Unfounded” series is that it has placed added pressure on RCMP and Ontario prosecutors to downcharge sexual assault claims to non-gender-based crimes (Novac, 2018). This is a paradoxical outcome given the funding is part of a $187 million package targeting sexual assault and gender-based violence. This outcome has resulted in charge bargaining and plea bargaining: this turns the microscope on the women themselves, since rape is no longer recognized as a gender-based crime. In Emilie R.'s case, her body was literally incriminated through the reframing of alcohol and deviance narratives. Specifically, the Unfounded series used proof of guilt of driver impairment and intoxication as a responsibilization narrative instrumentalized to incriminate conditions of female bodies. These girls had not been driving; rather, many had been the vicims of alcohol-facilitated rape. In Emilie's case, she had survived an alcohol-facilitated gang-rape that was non-consensually filmed at a residence on Laurentian campus.

"Two toxicologists interviewed by the Globe said that, given this scenario, it’s more likely Taylor’s blood alcohol was between 170 and 240 milligrams at its peak, which, at the high end, is three times the legal limit, and at the low end could cause blackouts and, possibly, pass-outs from intoxication."

“Then everything starts to get hazy,” Emilie says. “One minute I’m with my friends and I was kind of blacking out, having little black-out parts, and the next minute I’m in a strange room with strange people and I don’t know what I’m doing and I don’t know what’s going on around me and I’m scared.”

Finance Minister Bill Morneau’s 2018 Federal Budget provided the RCMP with $10 million, and $2 million per year ongoing, to establish a national unit that will coordinate the review of nearly 25,000 sexual assault cases that were dropped by investigators as "unfounded." There is a concern that re-opening these files may expand opportunities to intimidate victims, diminish the seriousness of the assault, and attack victims’ credibility as witnesses. Indeed, the Globe and Mail Unfounded series mentions the "legal limit" of drinking and driving, used to incriminate women like Emilie. Talks of the "legal limit" amount in the context of "capacity to consent" treat rape victims as suspects for false reporting and occurs with more frequency than most people understand or recognize. Despite the outpouring of enthusiasm about the notion of trauma-informed policy and its potential to maximize the public health impact of traumatic stress research (Sorenson 2002), no empirical studies have investigated if and how the construct of trauma-informed practice has been integrated into public policy proposals to date. It has consequently been acknowledged that "little is known about the current status of trauma-informed public policy and limited guidance exists to guide trauma-informed policy advocacy efforts" (Purtle & Lewis, 2017).

In her case, the Chatham police investigation actually did appear to collect strong evidence that the 21-year-old was extremely intoxicated – and plausibly unconscious – at the time of the alleged rape. However, it seems the lead officer misinterpreted the blood alcohol science.

The law defined driver impairment in terms of blood alcohol content (BAC), whereby a level of 0.05-0.15% was “supporting evidence” for intoxication and a level of more than 0.15% was proof of guilt in drunk driving cases (Marquis, 2012). In the 1950s, as highway construction and automobile ownership burgeoned, various states introduced “implied consent” into their motor vehicle licensing laws, which allowed police to take blood or breath samples of drivers in specific situations and I argue misapply the blood science in cases of Sexual Assault Evidence Kit toxicology tests. It would appear that the NSC program to train breath and blood testing technicians was funded by the Licensed Beverages Industries, a major alcohol lobby (Marquis, 2012). In her review of cases where sexual assault victims were unconscious and otherwise incapacitated, Benedet notes that "judges employ a choice-based narrative about the right to change one’s mind, rather than emphasizing that sex with an unconscious woman is inherently violent behaviour" (Aikenhead, 2018). In such cases, it has been noted that "whether or not a sexual assault has taken place is viewed as being based entirely on individuals’ choices, with no recognition of structural sex inequality" (Aikenhead, 2018) and I legally suggest also presents a sustained effort to erode the gender-based nature of the crime of sexual assault itself:

• The Crown counsel could have reasonably chosen to prosecute the non-consensual disclosure of sexual images and video component of the case (Ryan, 2018).
• The offence of voyeurism could potentially be relied on if the images were surreptitiously recorded without the consent of the person in the image (Lum, 2004).
• Furthermore, since the police saw this video and used it to mock the state of Emilie and imply that her attackers were right to gang-rape her on account of her intoxication, there exist real grounds for the crime of voyeurism being levelled against the police, as well as sexual misconduct charges pursuant to the National Defence Act
• As per the progress report on the Rehtaeh Parsons case: One of the most common and impactful forms of violence, photographs or videos of a crime or consensual sexual encounter, or even just nude photographs, is critically influenced by gender; thus removing the gender-based dimension of sexual crimes has presented a real disservice to sexual assault complainants such as Emilie, CyberSCAN statistics illustrate this jurisdictional overlap and blending: particularly in the NFA (no file added) section, outcomes are divided into multiple categories, noting instances where cases were handled by CyberSCAN (CYB) and by the police (PF). Options such as Nova Scotia’s CyberScan unit (Dodge and Spencer, 2018), which provides victims of all ages with the choice to deal with non-consensual pornography offenses more expediently and informally through sending warning letters to offenders, assisting in the takedown of intimate images, and/or convening mediation processes.

None of these protocols were honoured in the case of Emilie and instead the courtroom of public opinion become an arena of linguistic combat and the victim merely a pawn that is subject to brutalization and re-traumatization in the adversarial contest (Ubell, 2018) of the lawless plea bargaining process (Crespo, 2018) with the complainant assumed to be the "defendant". The form of communication is formal, heavily scripted and rigid… “there are rules regulating who can speak, to whom and when” (Craig, 2016). Defence counsel skillfully manipulate the use of language to achieve their goal of winning the contest of the lawless descent into plea bargaining, arguably the cornerstone of charge bargaining practices that have been implicated in removing the gender-based dimension of sexual assault in the Canadian context. Paul Cooper, a senior member of the Toronto criminal defence bar advised young defence counsel that they must “kill the witness on cross in sexual assault cases” where defence lawyers attempt to ‘whack’ the complainant by employing dubious tactics to evade the rules surrounding the admission of sexual history evidence and victims’ personal records held by third parties, including the alcohol lobby in the case of Emilie R.: “In putting forward the client’s perspective, the defence lawyer tells a story by leading the complainant through the defendant’s version of events…the complainant’s responses are virtually superfluous to the proceedings; the defence lawyer’s job is to put an alternative story to the factfinders to create reasonable doubt.” (Ubell, 2018).

False reporting charges and cases of charges of “insufficiency” are typically brought against rape victims in circumstances where police have failed to undertake a thorough and well-resourced investigation into the original rape complaint, thus resulting in women being put through a re-traumatizing adversarial ordeal. All too often, widespread police skepticism toward sexual assault victims means that the rape investigation descends into limbo and a lack of accountability mechanisms means that victims have no recourse when police choose to turn the tables on them. Cases where rape victims have been charged with false reporting are important and I contend that instances where women’s Unfounded “sexual assault” cases are re-opened, ending in the application of a dubious “clearance strategy” warrant closer attention as well. They can help us become aware of the systemic problem of misconduct in sexual assault investigations and they demonstrate how critical it is to recognize these practices and create mechanisms to hold police accountable before such practices culminate in the death of a complainant; as was the case in Emilie’s case of alcohol-facilitated gang-rape by two male strangers, whereby she was non-consensually filmed and the police failed to seize the unlawful video from suspects when it was presented to the police.

“She didn’t go into detail. She said it was me, in the video, obviously pretty drunk, giving my verbal consent to the sex, apparently,” she says. The officer’s notebook doesn’t include any detail about the contents of the video. “Given the amount of alcohol I had, I was not in any state to give rational, informed consent.”

(A person who is incapacitated from the effects of alcohol cannot agree to sexual activity. Although police, Crown attorneys and judges have struggled to define when that line is crossed.)

I further contend that scope of evidence used to strategically deem the case of Emilie’s case as “Insufficient Y” crossed the line between inappropriate & appropriate, in terms of evidence on the whole and it would have been advised to restrict the scope of evidence, as argued in Ugoh & Ors, R v: “The extent to which, on this basis, the Professor's evidence crossed the line between the appropriate and inappropriate is limited, when viewed in the context of his evidence as a whole. Turning to the state of the evidence at the close of the Crown's case, we do not accept the appellants' submission that, had the judge restricted the Professor's evidence, the Crown would necessarily have failed to satisfy the onus on it of showing a case on which a reasonable jury properly directed could convict. The judge, it is true, relied heavily at the half-way stage on the Professor's evidence as to what the appellants would have thought about the complainant's ability to consent. But the circumstances generally, combined with the Professor's evidence regarding the complainant's actual state of mind and likely behaviour under the influence of what she had drunk, would in our judgment still have given rise to a sufficient case.”

Gender-based violence against women may amount to torture or cruel, inhuman or degrading treatment in certain circumstances, including in cases of rape, domestic violence or harmful practices (WHO, 1997) and some forms of gender-based violence against women may also constitute international crimes (SáCouto & Cleary, 2009). In accordance with this established fact, a gender-based approach is required to understand the level of pain and suffering experienced by women who have been subjected to degrading practices and that the purpose and intent requirements for classifying such acts as torture are satisfied when acts or omissions are gender-specific or perpetrated against a person on the basis of sex (Copelon, 1994). In an attempt to remove the seriousness of the crime of alcohol-facilitated gang-rape, Robyn Doolittle’s follow-up book to the investigation dehumanizes Emilie by invoking euthanasia arguments to rationalize her untimely death, stating that she told her “I’m very much at peace with my situation. I’m glad it’s over” weeks after the aggressive interrogations by the police and prosecutors concluded with an “Insufficient Y” clearance strategy code. These clearance strategy options characterize the sexual crime of rape as a mere "incidents" to be triaged.

It was implied that when Emilie said "I'm glad it's over" she was talking about her life, an absurd interpretation of her vocalizations intended to erode moral concern for her individual circumstance. The situation described can be best approximated to an entrapment-in-escalation phenomenon that induced an instance of arrested flight. Furthermore, the investigative journalist contends that she “committed” the offence of suicide and purposefully withholds information and resources that suicide is preventable. In their Unremembered series about "Canada's unknown war dead", journalists state that soldiers and veterans “died by suicide” and are careful not to use the stigmatizing word "committed". As such, the Globe and Mail must understand the magnitude of their words. Even in death, bright, brave, and courageous Laurentian honors student and French lanugage supply teacher Emilie was dehumanized and incriminated in an unprecedented example of the cultural scaffolding of rape. The ethos of the overzealous cop become an intoxicant exemplified by persistent efforts to reduce cognitive dissonance by disparaging the victim. Following my discovery of Emilie's death, Robyn Doolittle and the Unfounded team have stonewalled as an image-defense strategy and have failed to invigorate efforts to prevent similar profound tragedies and losses.

References:

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