No arrest, no charges, no satisfaction: One woman's sex assault complaint

Jane's uncle has a history.

More than a decade ago, he pleaded guilty to sexual exploitation of an underage girl. 

And so when Jane went to the police last year, alleging her uncle had molested her on a family camping trip when she was 15, she expected swift results  — an arrest, charges and, she hoped, a chance to testify against him.

Instead, an investigation led by Osoyoos RCMP and assisted by Abbotsford police has been closed without anyone questioning her uncle.

"Now that I've actually gone through the process of speaking out, I know why women don't say anything, because our legal system and justice system does not help us," Jane said in a recent interview.

Because Jane is a victim of an alleged sexual assault, CBC has agreed to use a pseudonym instead of her real name.

As allegations of sexual assault by prominent men dating back years or even decades continue to dominate the news, Jane's experience shows how difficult it can be to secure criminal charges in historical cases.

According to Statistics Canada, between 2009 and 2014, just 19 per cent of sex assaults reported to police after more than a year were tried in court, and less than half of those cases resulted in convictions. 

There can be important principles behind the reluctance to prosecute these cases, like protecting due process and the presumption of innocence when there is little evidence apart from an alleged victim's memory.

But the end result often leaves people like Jane feeling police and the courts have failed them.

"It's made me feel like I haven't been important," Jane said. "It's almost like, do they even believe me anymore?"

In a complaint filed with the Civilian Review and Complaints Commission for the RCMP, Jane claims she was promised her uncle would be arrested, and accuses investigators of failing to interview other family members who were present on the camping trip at the time of the alleged assault.

The RCMP will only say that Jane's file was closed after Crown declined to approve charges. But Sgt. Jason Bayda, area commander for Osoyoos RCMP, wrote in an email to CBC News that "this does not preclude it from being re-opened at a future date should further information of evidentiary value be obtained or uncovered."

Abbotsford police declined to comment.

The allegation

Jane first told her story to Mounties in Osoyoos, where the alleged assault happened, but both she and her uncle live in Abbotsford. 

And so, the Osoyoos RCMP asked Abbotsford police to arrest and question Jane's uncle — standard protocol, according to Simon Fraser University criminologist Rob Gordon.

But they refused to do that without a warrant or charge approval, leaving Jane feeling even more vulnerable.

"The police know that he lives in Abbotsford as well as I do," she said. "I'm kind of, like, out in the open."

Now in her 20s, Jane speaks deliberately as she tells her story. She's still getting used to talking about it after years of silence, through countless family get-togethers with her uncle.

She didn't tell anyone until recently because she didn't want to be the source of family strife.

"You couldn't really say anything because you're worried about ruining the mood," she recalled. "That sounds really silly, but it's totally true."

The alleged assault happened on a family camping trip in Osoyoos. Jane's aunt had married this man just a few years earlier.

Jane claims her uncle came into her tent one night, on the pretext of helping her apply aloe to a bad sunburn, put his hands down her pants and molested her.

It was only last year, while Jane was living abroad, thousands of kilometres from her uncle, that she finally opened up to her mom during a Skype conversation. "I felt safe. I knew my uncle couldn't find me," she recalled.

Filing a report

As soon as Jane returned to Canada, she and her mother drove to Osoyoos to file a police report.

Jane keeps a thick stack of documents about the investigation, including emails and Freedom of Information requests, all collected since she gave her police statement on May 5, 2016.

Her Abbotsford police file shows that RCMP contacted them two days after Jane's initial report, asking for an officer to arrest and question her uncle. On May 10, an Abbotsford Police Department constable was assigned to the job.

Instead, that officer called the lead investigator in Osoyoos and said he would need a warrant or charge approval first. The Mountie promised she would ask Crown to approve charges.

The APD constable did, however, call Jane's aunt, who declined to give a statement, according to an email the officer wrote to an advocate for the family.

RCMP submitted their report to Crown later in June, based solely on statements from Jane and her mother.

Without a statement from the uncle or other witnesses, the case was looking thin. As RCMP Sgt. Jason Bayda wrote in an email to a family advocate that summer, "Crown likely will not approve charges with the information we have to date."

'The puzzling part of this case'

The APD's decision not to question her uncle left Jane mystified.

"It makes me pretty frustrated," she said.

University of British Columbia law professor Isabel Grant was equally baffled. Neither a warrant nor charges are necessary to arrest and question a suspect — all that's necessary is reasonable grounds to believe someone has committed a crime.

"That to me is the puzzling part of this case … particularly when they were dealing with someone who had a record of sexual offences against a minor," Grant told CBC News. "I have no explanation for why they would do that."

Even Mounties, who had asked for the arrest so they would have a statement from Jane's uncle to use in their investigation, couldn't fully explain it.

In a email to a family advocate that July, RCMP Staff Sgt. Kirsten Marshall wrote: "We can question anyone without a warrant. The question becomes 'should we.' .... I am not sure why Abbotsford is waiting on a warrant to speak to him, that is a decision they have made based on their assistance in the investigation."

An APD spokesperson declined to answer questions about the case, saying Abbotsford police were not the lead investigators. Sgt. Jason Bayda of the Osoyoos RCMP, declined to elaborate on the investigation, but described it as "thorough" in an email.

'It's quite tricky'

But according to criminologist Rob Gordon, it's not uncommon for police officers to choose not to make an arrest in historical sex assault cases when there is little evidence beyond a victim's statement.

"It's quite tricky, because where you've got a long gap between the offence and the discovery of the offender, there's all manner of compounding things that dictate to the investigating officer that they must proceed very carefully," Gordon said.

It's a story that's very familiar to Louisa Russell, a crisis worker at Vancouver Rape Relief, who says she's seen several recent examples where clients have reported sex assaults and police have not attempted to question the suspects.

In Jane's case, Russell sees unfortunate echoes of the Robert Pickton investigation, which crossed jurisdictional lines between Vancouver and Coquitlam. During B.C.'s Missing Women Commission of Inquiry, a lack of cooperation between police departments was identified as one of the factors that allowed the serial killer to evade detection for so many years.

"We're still left with these ridiculous back-and-forths between detachments over whose jurisdiction is it to investigate and who has the authority to get what they need," Russell said.

Before the summer of 2016 was over, the RCMP would get a chance to question Jane's uncle, when he and Jane's aunt returned to the Okanagan in August.

One officer approached him during that trip, but both he and his wife refused to give statements. There was no attempt to arrest him.

'Devastating consequences'

By the end of 2016, it was official: Crown prosecutors in Penticton had declined to approve any charges against Jane's uncle.

Jane filed a Freedom of Information request for the reasons, and was told "the available evidence did not meet the Criminal Justice Branch's charge assessment standard."

The Crown's decision isn't surprising, according to Grant, the UBC law professor.

B.C. has one of the highest standards for charge approval in the country. The Crown has to be convinced that there is a "substantial likelihood" of obtaining of conviction before prosecutors will sign off.

"That's something we want to have, because we don't want the Crown bringing charges whenever they think someone might have committed a crime," Grant said.

"But that has particularly devastating consequences in the sexual assault context."

Often, the only people who know exactly what happened are the victim and her alleged attacker. If the assault happened years ago, the chances of finding any physical evidence are slim.

What sometimes makes the difference is if more alleged victims come forward, according to Gordon: "Then you start to build a picture of how this person was conducting himself."

But rape crisis worker Russell says police departments need to make sex assault a higher priority.

"There needs to be a complete attitudinal shift to seriously investigate and prosecute cases of violence against women and girls," Russell said.

No matter what, Jane plans to keep fighting for a more thorough investigation of her allegations, and she wants victims to know that coming forward can be a positive experience, regardless of what happens.

"It feels good to help yourself, tell your story and then ... go get some help, so you can continue to move forward with your life, because when you keep it in yourself, you're going to have that burden for the rest of your life," she said.