Why a medical form may have impeded charges in RCMP's #MeToo case

In many respects, it's a startling result.

During the RCMP's own #MeToo reckoning, approximately 190 current and former RCMP employees — men and women in three provinces — say their employment-related medical exams crossed the line into sexual assault.

The exams were conducted by RCMP doctors from the 1980s to early 2000s.

But despite sworn statements from the complainants, Halifax Regional Police, Toronto Police Service and the Royal Newfoundland Constabulary — which investigated the claims — all arrived at the same conclusion. There were no charges against any of the three doctors.

Many of the complainants remain in the RCMP.

In Nova Scotia, the number of people who came forward was staggering. In all, 152 people filed complaints against a Halifax-area doctor alleging sexual abuse from 1981-2003. They nicknamed him Dr. Fingers.

In early 2018, Halifax Regional Police got to work.

It took 14-months for multiple investigators to look into each report, and after consulting with the Crown attorney's office about the "totality of the evidence," they decided there were "insufficient grounds to lay criminal charges," said Const. John MacLeod in an email last week.

CBC News is not naming the Nova Scotia doctor, believed to be in his 80s, because he has not been charged.

The decision not to charge him is "sickening" for the only Nova Scotia complainant to come forward.

Karen Miller, 53, a retired sergeant who blazed a trail for female Mounties, received a phone call from an investigator recently advising her the case was closed.

Overwhelmed, the only thing Miller knew was that she wanted an explanation.

She was told that Crown attorneys were consulted, along with doctors who perform medical examinations on RCMP applicants. Investigators also reviewed case law and RCMP policy.

A review of Miller's RCMP medical exam form when she was a 21-year-old recruit has check marks to indicate her pelvic area and breasts were examined.

For men, there were exams of the rectum, scrotum and penis to see if there was circumcision.

Miller said she was subjected to breast and vaginal exams that were uncomfortable and left her feeling tense and confused.

She also had to bend over three times, wearing only a hospital gown open in the back, exposing her buttocks to the doctor. But for the final part of the exam, he inserted his fingers into her rectum, a check usually reserved for men.

"I felt like just a piece of crap, like just violated," said Miller, who broke down at times during the interview. She never told a soul about the experience out of fear she'd ruin her shot at her dream job.

Policy evolves

The medical form provides a snapshot in time shedding light on how the RCMP's periodic health assessments for members and recruits have evolved from a "personal health" approach to an occupational health model.

In an email, RCMP Sgt. Marie Damian said general health evaluations of "all body systems" including the "breast, genitalia, pelvic and rectal examination" were part of clinical examinations until 1993.

They were supposed to "contribute to the well-being of police officers."

By the '90s, the focus then shifted to occupational health model, and the "personal elements" of examination were recommended, but voluntary for regular members.

However, recruits were treated differently. It was left to a doctor's discretion whether to examine these private areas, said Damian.

More policy changes occurred between 2006-09 when some personal aspects of medical examinations for recruits were eliminated, and made optional for regular members.

If there were occupational health and safety requirements that required personal health examinations, they were to be conducted by the member's own doctor rather than a RCMP physician where possible, Damian said.

Currently, the "more personal medical procedures" are not routine requirements, and the RCMP is continuing to review its policy on periodic health assessments, she said.

Proving historical sexual assault

Historical sexual assault files are among the most challenging to investigate and prosecute. The cases pit one person's word against another's, and often there's little physical evidence.

Jula Hughes, a law professor at the University of New Brunswick in Fredericton, reviewed Miller's RCMP medical exam form. She said it could provide a defence attorney with ammunition against a sexual assault prosecution.

"It would not be difficult to raise a reasonable doubt about the sexual nature — it would simply be the alternative explanation that there was a medical exam carried out," she said.

But she said the exam doesn't preclude a charge of sexual assault. However, it could be an uphill battle to prove, said Hughes.

In Nova Scotia, the decision to lay charges is ultimately made by police, but Crown attorneys provide advice in high-profile or sensitive cases.

Mark Furey, the province's justice minister, said in an interview the decision not to proceed came from Crown attorneys.

Furey is a retired RCMP district commander.

He said it is the role of the Public Prosecution Service to evaluate a case "objectively and come to decisions based on the evidence. And I believe in these circumstances that's what the Public Prosecution Service has done."

'What are the chances that I will be listened to'

The decision sends an unfortunate message, whether it's accurate or not, said Michael Ungar, a professor of social work at Dalhousie University in Halifax.

"Of course there is a perception that, 'My gosh, if 150 officers would bring forward a complaint, and them not being heard, what are the chances that I will be listened to when I bring forward my complaint,'" he said.

The academic believes the investigation by the municipal police force in Halifax into "a really bad experience for their colleagues" was likely thorough, and frustrating for them, too.

"I'm going to guess that they did not lay charges — it was because they really couldn't," he said.

But in a world where victims often don't report sexual assault for reasons ranging from not being taken seriously, complaints are deemed "unfounded," to being revictimized on the stand, Ungar fears the potential fallout from this case.

He worries that victims will think they won't be believed because of "an erosion of the perception that we can trust police officials," a risk he believes might be greater in cases where the attacker is a health professional.

RCMP paying settlements

The fight for justice is continuing in civil court.

The RCMP is paying settlements to more than 3,100 claimants in a class-action lawsuit related to harassment and sexual abuse.

These days, the force is calling the people who complained "survivors."

In a statement, Cpl. Lisa Croteau said they would find the decision "undoubtedly disappointing and frustrating." The force, "as leaders and colleagues," pledged to provide the employees with support.

Miller is unequivocal about what she experienced in the doctor's office 32 years ago.

"Absolutely, a sexual assault, being violated," she said.

Miller started her career in Ferryland, N.L., where she was the only female officer at the detachment. She was handed all of the sexual assault investigations because it was believed she would handle them sensitively as a woman.

Some of her earliest cases were dealing with the victims of sexual assault by a Roman Catholic priest.

Now, more than three decades after she started as a police officer, Miller, who considers herself a victim of sexual assault and harassment, finds herself struggling with PTSD that emerged after her retirement.

She said the stories of more than 150 people in Nova Scotia who underwent invasive medical checks for jobs with the Mounties adds strength to their collective allegations of assault.

"This is prime evidence you've got. I don't know how much more you would need to charge somebody," she said.