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  • Causation, Common Sense, and the Common Law:Replacing Unexamined Assumptions with What We Know about Male Violence against Women or from Jane Doe to Bonnie Mooney
Abstract

In this article, Elizabeth Sheehy argues that Jane Doe v. Metropolitan Toronto Police, wherein the police were held accountable in law for sex discrimination in violation of women's section 15 equality rights under the Charter and for negligence in their investigation of a serial rapist, represents a high point in feminist litigation. She details the feminist knowledge, language, and strategy as well as the individual contributions by Jane Doe herself, her lawyers, her experts, her judges, and even a police officer that together made this groundbreaking legal victory possible. She compares this case to Mooney v. Canada, a case also involving sexism in the policing of male violence against women, where Bonnie Mooney's negligence case was lost on the legal stumbling block of proof of causation. Elizabeth Sheehy suggests that although feminists became involved in this case on appeal and argued that Bonnie Mooney's section 15 rights were infringed, proof of the element of causation could have been facilitated had women's equality been at issue at the trial level. She shows how a feminist analysis of wife battering and femicide could have been used to challenge the assumptions of both police and judges that in turn shaped the ruling on causation and argues that even when lawyers fail to raise section 15 arguments, judges bear a responsibility to interpret the law consistent with the equality guarantee.

Résumé

Dans le présent article, Elizabeth Sheehy soutient que l'arrêt Jane Doe c. Metropolitan Toronto Police marque un point tournant dans la présentation réussie d'arguments féministes devant les tribunaux. Cet arrêt a tenu la police responsable pour son comportement discriminatoire, en contravention des droits à l'égalité des femmes prévus à l'article 15 de la Charte et responsable de négligence dans leur enquête sur un violeur en série. L'auteure identifie les connaissances, la langue et la stratégie féministes aussi bien que les contributions personnelles de Jane Doe elle-même, de ses avocates, de ses spécialistes, de ses juges, et même d'un agent de police qui, ensemble, ont rendu possible cette victoire juridique quasi-révolutionnaire. Elle compare cette décision à l'affaire Mooney c. Canada, un arrêt qui traite également du sexisme dans le contrôle policier de la violence masculine contre les femmes. [End Page 87] Dans cette affaire, la difficulté de prouver le lien de causalité a provoqué l'échec de la poursuite pour négligence policière, intentée par Bonnie Mooney. Selon Elizabeth Sheehy, la preuve du lien de causalité aurait pu être facilitée si l'égalité des femmes avait été invoquée en première instance et si les féministes y étaient intervenues à ce stade plutôt que simplement au niveau de l'appel. Elle indique comment une analyse féministe du fémicide et de la violence contre les conjointes aurait pu servir à contester les a prioris de la police et des juges qui ont fondé leur décision sur l'absence de preuve du lien de causalité. Elle soutient aussi que même lorsque les avocates et avocats ne soulèvent pas devant le tribunal des arguments fondés sur l'article 15, le tribunal se doit néanmoins d'interpréter le droit en tenant compte d'office de la garantie d'égalité.

Introduction

Jane Doe v. Metropolitan Toronto Police,1 decided in 1998 by the Ontario Superior Court of Justice, stands as one of the most significant feminist victories in the past twenty years. The decision held the police legally responsible for sex discrimination, contrary to the constitution, and for failing to warn Jane Doe that she was a possible target for a man who had already raped at least four other women. This case marks the first time that the Canadian police have been held to public account for sex discrimination, by breaching women's section 15 Canadian Charter of Rights and Freedoms2 right to equality, in their handling of rape reports. It was also the first time that they have been held liable in tort law for negligence in their conduct of a rape investigation. This case exposes egregious sexism on the part of Toronto police, documents their disregard for the safety and integrity of women who report rape, and repudiates the police rationales for their failure to investigate rape in a professional manner. The case provides a blueprint for section 15 claims involving systemic discrimination in the enforcement of the criminal law. Most importantly, perhaps, the case was argued and won by Jane Doe herself and her lawyers on the basis of feminist language, knowledge about male violence against women, and activist political strategy.

Bonnie Mooney v. Canada,3 which was decided by the British Columbia Court of Appeal in 2004, should also have been a successful tort claim given the Jane Doe decision, the common law of causation, and the available [End Page 88] knowledge base regarding the policing of wife battering. This claim, framed by her counsel solely as negligence based on police failure to properly investigate Bonnie Mooney's report of threat from her violent and estranged partner, Roland Kruska, in clear violation of the British Columbia attorney general's Violence against Women in Relationships Policy,4 foundered on proof of causation. Although it was held that the officer was in fact negligent and breached his duty to Bonnie Mooney, both the trial judge and the appeal court held that there was an inadequate causal connection between the police inaction and the subsequent violence of her former partner when he shot and killed her friend Hazel White, attempted to kill and grievously wounded her twelve-year-old daughter Michelle, traumatized her other daughter, six-year-old Kristy, set fire to their home, and then killed himself. The decision on causation was explained in doctrinal terms almost exclusively: the court adhered to the traditional test for causation and found that Bonnie Mooney could not prove on a balance of probabilities that the police inaction contributed materially to these devastating harms.

According to the majority in the appeal court decision in Mooney, no re-working of the ordinary test for causation is needed for such claims because causation can be proven by a "common sense" inference, if warranted on the facts. Yet both levels of court concluded that the seven-week interval between the police inaction and Kruska's fatal attack demonstrated that the two events were unrelated. What is missing, of course, is about twenty years worth of feminist knowledge and policy development in the area of police responses to male violence against women. The Vancouver Rape Relief and Women's Shelter (VRRWS) intervened at the appellate level in order to provide the court with exactly this type of context. Instead, the majority judges relied upon demonstrably false beliefs about abusive men and their patterns of invoking violence in an effort to control women.

The BC courts have thus turned away from confronting the role that police, lawyers, and judges play in empowering such men, thereby contributing to the "social entrapment" of women in battering relationships. The term "social entrapment" has been used by feminist theorists to describe the impact of powerful institutions such as police, law, and the courts on women's ability to escape or resist men's violence.5 As James Ptacek summarizes the work of Linda Gordon, "[i]ndividual women are assaulted by individual men, but the ability of so many men to repeatedly assault, [End Page 89] terrorize, and control so many women draws on institutional collusion and gender inequality."6

In this article, I want to compare and contrast Jane Doe with the Mooney decision, to illuminate Jane Doe as a brief, shining moment in feminist engagement with law and to demonstrate that the Mooney decision is wrong in law and fact. The courts must jettison outdated beliefs and assumptions and interrogate the social facts and knowledge base that informs claims such as Bonnie Mooney's. The lead provided by the Jane Doe decision should be followed such that courts considering claims against police for their failure to respond to women's reports of male violence must examine the historical, statistical, and legal context surrounding the adoption of policies directed at the police response. Neither the legal standards for causation nor their application in these claims can be unbiased as long as they are embedded in untested beliefs that reinforce wife battering.

Claims such as those advanced by Bonnie Mooney must be framed not only in tort but also as section 15 Charter violations in order to fully capture the wrong committed by police in these cases, and it is critical that these issues be raised at trial, where an evidentiary foundation can be developed. Hazel White, Bonnie Mooney, and their respective families and friends were not the only ones harmed by the police failure to follow the BC policy on investigating violence against women in relationships. Like the Jane Doe case, Bonnie Mooney's treatment by the Royal Canadian Mounted Police (RCMP) is repeated in statistical terms in British Columbia and across the country, in violation of women's rights to equal protection of the law. This discriminatory treatment is buttressed by police attitudes towards women and male violence against women and is illustrated by specific statements made by police in both the investigation of the serial rapes in Jane Doe and in their response to Bonnie Mooney's request for intervention.

In addition to properly characterizing the wrong, a section 15 claim would shift the causation analysis to focus on sex discrimination and the social entrapment of battered women as the wrongs, thus making it easier for the claim to succeed. While it is counsel's role, and not the judge's, to frame the wrong as a particular cause of action, common law tort principles must be interpreted in a manner consistent with the Charter and Charter values, including, most importantly, the equality guarantee.7 At the appeal level, [End Page 90] the VRRWS intervened to argue that causation must be interpreted in light of section 15 of the Charter, and yet the majority of the BC appeal court failed to address the implications for battered women in its decision denying police responsibility.

These two cases highlight the activism of two remarkable women and the feminist organizations that have challenged the criminal justice system for its failure to protect the lives and safety of women and for the consequent enlargement of power conceded to violent, misogynist men over women. Jane Doe and Bonnie Mooney are litigants, not lawyers, who have shown leadership to lawyers and academics in their refusal to accept the status quo in policing, lawyering, and judging and in their courage in confronting these powerful institutions in the police station, the media, and the courtroom. Both women have allied themselves with feminist organizations and have contributed to our collective commitment to women's freedom and equality. They were supported legally and politically by feminist organizations. Women against Violence against Women (WAVAW), the Women's Legal Education and Action Fund (LEAF), and the VRRWS have insisted that the legal treatment of male violence against women is an equality issue requiring a response from a state committed to women's freedom and participation in Canadian society. These organizations have worked with the knowledge base that has been generated by frontline women's organizations and have brought together lawyers and activists to generate strategy and legal action on behalf of women.

Jane Doe v. Metropolitan Toronto Police

Jane Doe was raped in 1986 by a man who broke into her apartment while she slept. She engaged in a protracted piece of litigation against the Metropolitan Toronto Police for their failure to investigate rape in a manner that respected her sex equality rights and to warn her of her status as a potential target of a serial rapist. After twelve years and several legal landmarks, she won this case on terms that represent a significant legal victory for Canadian women. Since then she has persisted in attempting to effect change by her work on the Jane Doe Social Audit,8 which continues to investigate the practices of the Toronto police several years after her case, as well as through her support for many other women who have experienced male violence, speaking engagements, and her book The Story of Jane Doe.9 [End Page 91]

The Jane Doe case is significant for the precedents it set in both section 15 Charter and negligence law. As a Charter case, it was the first time that a section 15 argument based on discriminatory enforcement of a neutral law had been successful against the police in Canada. While some claims have succeeded in the United States based on violation of the equal protection clause of the Fourteenth Amendment of the Constitution,10 and in Canada against Customs Canada,11 a claim of this nature against police faced formidable barriers in terms of the legal requirements and their proof, as illustrated by some of the unsuccessful section 15 litigation against police.12Charter cases cannot be proven through anecdotes, and, yet, as the exclusive body charged with the investigation of crimes against the person, police have a virtual monopoly over data collection regarding their investigations. Thus, in an early case challenging the policing method used to investigate solicitation for the purpose of prostitution in Halifax, which resulted in a four-to-one ratio of women to men charged, the police persuaded the court that there was no discrimination because these figures simply reflected women's offending rates.13

Jane Doe was won in spite of the difficulties of using women's accounts of policing to prove a section 15 violation. A high price is exacted by the public attacks on women's character that occur in courtrooms and in the media. For many women who have already been raped and then had their accounts "unfounded" by the police, the price is impossible. For example, in the Jane Doe litigation, although the second of the first four women who reported being raped by Paul Callow had lodged a complaint regarding her treatment by police,14 neither she nor any of the other women participated in the lawsuit against the police.15 Furthermore, the legal barriers to section 15 claims include the doctrinal splits and inconsistencies in equality jurisprudence, as well as the notorious failure of rape law to return convictions, providing police with further justification for discontinuing their own investigations.

In the Jane Doe case, the police simply did not believe the first two women who reported attacks by Callow and apparently remained sceptical even in the face of the third woman's report. The investigative reports for these three rapes were manifestly incomplete, such that a proposed charge of [End Page 92] public mischief against the second woman who reported to police may well have succeeded had police pursued it. The complicity of the criminal law in supporting what Jane Doe calls the "rape industry" is vividly illustrated by her own cross-examination by Callow's counsel in his preliminary inquiry. Because the rapist did not beat her up or cut her with the knife he held to her throat, she was forced, by counsel and by the judge, to state that her rape was not "violent."16

The Jane Doe litigation was so improbable that it took a woman of great intellectual force and an indomitable spirit to pursue it unwaveringly and successfully, supported by individual women, feminist organizations such as WAVAW and LEAF, and the knowledge and analysis generated by the women's liberation movement. Jane Doe participated in evidence gathering in the case as well as in conceptualizing the legal wrong. She found the immediate arrival of a police team at her door within minutes of her 911 call after the rapist had left perplexing. During an interview with investigators a few days later, she had the foresight to ensure that she had a witness present who recorded notes on the interchange. When one of the officers informed her that she had been attacked by a serial rapist who targeted women like her, she asked, audaciously, why she had not been warned. Jane Doe appreciated that the answer—"women would become hysterical"—was evidence that sexism had influenced the police investigation. Their prompt arrival at her door indicated that her safety had been compromised by a decision to hold a stake-out rather than inform women of the danger they faced or protect them from it.

In spite of police threats that she would be prosecuted for interfering with an investigation, Jane Doe, along with WAVAW, placed posters in the neighbourhood to warn other women about the rapist and then held a news conference to announce her decision to sue the police. As recorded in the case itself as well as in her book, Callow was in fact apprehended as a result of the posters. His ex-wife saw a poster, reported him as a suspect to his probation officer, and supplied information about his history of rape in British Columbia. The probation officer in turn contacted the investigating officers.17

At the subsequent criminal trial of Paul Callow for the rape of five women in Toronto, Jane Doe again rejected the status quo, this time by challenging lawyers' practices as opposed to police methods. Incensed that she would be precluded from listening to the evidence apart from her own testimony, she resolved to find a lawyer who would argue that the moral principle, "justice must not only be done, but must be seen to be done," [End Page 93] should be understood as her legal right to attend the trial of the man who raped her. Although it took her some time to find a woman who would agree to make this radical argument on her behalf, the lawyer who eventually argued the case, Rebecca Shamai, (now Justice Shamai of the Ontario Court of Justice) won the motion, making legal history in terms of the rights of women who testify at rape trials. In turn, Jane Doe's monitoring of Callow's trial revealed just how much information police actually had about the rapist and his pattern, as well as how they had dismissed the first women who reported his violence.18

Yet it also took the persistence of Jane Doe to insist on the pursuit of the sex discrimination claim, for the argument in negligence that the police had failed in their duty to warn identifiable targets of this rapist was easier to convey in the media, more sensational, particularly when characterized as using women as "bait" to catch the rapist, simpler for lawyers to conceptualize, and more amenable to proof, given the police admission that a deliberate decision not to warn had been made. Asserting the Charter violation required confidence that the policing of rape had not changed, contrary to police efforts at what the trial judge would later call "impression management," as well as clarity that women's experiences of deeply sexist policing would be validated by the evidence that would emerge, over the long term, through the discovery process. A commitment to the Charter claim meant that it had to be presented first and the negligence claim needed to be re-structured in order to ensure that its individual focus did not completely undercut the section 15 group-based claim. As Melanie Randall demonstrates, the negligence claim, traditionally conceptualized as a private law wrong, was thereby re-cast in this case as a wrong with public dimensions.19 Thus, the facts put forward in support of the section 15 Charter claim in turn shaped the argument that police breached their duty to warn Jane Doe, an identifiable target of a serial rapist, due to their sexist beliefs about women and the crime of rape.

The evidence of systemic sexism in the police processing of rape documented by the Jane Doe litigation is breathtaking and, yet, it is completely ordinary in terms of everything we know about this aspect of policing in Canada. The record showed repeated efforts by women's groups to bring to the attention of Toronto police women's documented experience of police neglect, under-funding, incompetence, and plain sexism in their rape investigations. The record included acknowledgment of the validity of these claims by one internal police report in 1975, a task force report in 1984 [End Page 94] in which police representatives participated as members, recommendations adopted by the force in response the same year, and an internal report documenting in 1986 the continuation of these same problems.

The specific problems brought to the attention of the Toronto police by earlier reports included "less adherence to the procedures, less investigation into the occurrences, less resources being utilized and a lack of understanding and support being given to the victim"; "'trained' . . . investigators are ignoring important factors dealing with forensic evidence collection;" "'supplementary reports' are not being submitted and we cannot determine if any follow-up at all has taken place"; "the investigator disbelieves the victim but cannot advise as to what investigation he has done in support or to refute the victim's story. This is reflected by noted discrepancies, cautions of public mischief and polygraph threats"; "[o]ccurrences [are] cleared based on judgments of character and comments on victim's behaviour and not as established by investigation or lack of forensic evidence;" "police officer's refusal to even file an occurrence report"; "judgments and comments about her demeanour 'did not appear to be upset at all' "; and "'inappropriate' personnel were sent to be trained as sexual assault specialists and rather than the 'cream of the crop' being sent—officers were sent on the basis of who was available."20

Beyond this evidence of problems noted in "every division in each district," the "investigatory" files for the four women who reported their rapes before Jane Doe was raped demonstrate a shocking level of discrimination by police. The reports by the first three women were apparently discounted. Some of the police methodologies for discerning whether the women were lying about rape defy belief. The officers' notes recorded their disgust with the disarray of one woman's apartment, and suspicion with respect to the cleanliness of another woman's home. Somehow the state of these women's apartments presumably provided the officers with insight into their characters and thus their credibility. Can it be that an untidy apartment suggests a slovenly and therefore un-rape-able woman? Does a very clean abode point to an uptight woman who is likely to fantasize a rape? Is this really policing? It would be amusing if women's very lives were not on the line.

The officers' idea of investigating the first woman's report that a rapist had entered from her balcony door to attack her was to list in meticulous detail and photograph what they called "pornographic sexual aids, including vaseline."21 They did not photograph the balcony or the structures below [End Page 95] that facilitated the attacker's access. Another method used to test the veracity of one of the women was to interview her ex-boyfriend and the superintendent of her building. The former apparently had a list of grievances and suspicions to relate to police about her, and the latter seemed to have monitored her movements and her guest list. Both helpfully supplied more dirt on this very clean woman, but their preoccupations with her personal life did not seem to cast doubt on the utility of their information in the eyes of police. Yet another police "method," the "potato chip test," discredited the second woman who reported to the police. Because a bowl of chips remained on her bed undisturbed, no struggle and therefore no rape had taken place.22 The women's demeanour was also used to determine whether they had "really" been raped. For example, one woman was described as "calm and relaxed," having "related the . . . story easily without emotion," thus shedding "some doubt on the credibility of the victim's story."23

While these facts alone are clearly egregious, the legal and political work of feminist lawyers was undoubtedly critical to the success of this litigation. The lawyers at LEAF immediately supported this case when Jane Doe approached them. LEAF spent years as counsel of record, dealing with the media, attempting to shape the case in collaboration with feminists in and out of the legal community, and, most importantly, defending the claim successfully against police attempts to have it thrown out for disclosing no cause of action. Jane Doe speaks proudly of the statement of claim that she and LEAF produced together, as a rare but important example of feminist legal work that is accessible to readers without legal training.24 By the time of the trial, LEAF was no longer counsel, and Sean Dewart had taken over the case. He had enough confidence in his abilities as a negligence lawyer to recognize his limitations and to seek a co-counsel, Cynthia Peterson, who was knowledgeable in the area of equality rights law. Her ability to work with feminist analyses and to make radical arguments clear and compelling meant that the Charter claim was central to the case. Finally, another critical player in the legal team was Elizabeth Pickett, a legally trained feminist (now poet) and friend of Jane Doe. She attended every day of the trial, translated back and forth between Jane Doe and her lawyers, and solved several critical legal dilemmas that could have cost them the case.25

Jane Doe insisted that her lawyers introduce the trial judge to a feminist analysis of rape such that the misinformed premises of the police were [End Page 96] glaringly apparent, as was the deformative impact these beliefs had on their ability to investigate this crime in a competent manner. Counsel led expert witnesses, many of whom had been identified, interviewed, then cajoled into testifying by Jane Doe herself. These experts discussed men's motives behind rape as hatred and dominance over women, the impact that rape has on women's lives, and the persistently insular and masculine culture of policing. The police insistence on sexualizing rape and the women who report it was underlined by evidence regarding an investigating officer's sexual comment to one of the women the day after she reported her rape,26 the police fascination with the women's sexual lives,27 and police adherence to rape myths, including their assumption that rape is only harmful if it is accompanied by additional physical assault.28

Interestingly, one police officer in the Jane Doe saga stands out as a maverick for her rejection of sloppy, discriminatory police work in the context of sexual assault and for her bravery in documenting and testifying about efforts to effect change within the institution on this issue. Detective Sergeant Margo Boyd was a significant witness at trial. She described the history and functions of the Sexual Assault Coordinator's office, detailed the specific failings of police investigations of rape, and described the barriers to any real change within the force. Detective Sergeant Boyd's internal report of 1986 was a "hard-hitting document" that provided example after example of inept police work and sexist reasoning and drew broad conclusions from this detailed sampling set out above. This report included the investigative report on one of the women who had been raped by Callow before he attacked Jane Doe. Boyd's evidence was critical to proving not only the systemic nature of sex discrimination against women who are raped but also the force's awareness of the problems and the failure to fundamentally respond to the issues.29

The feminist victory in Jane Doe includes Justice Jean MacFarland's unflinching judgment on the merits. The fact that this judge, since elevated to the Ontario Court of Appeal, came to understand and adjudicate police responsibility on the basis of a feminist analysis of male violence against women cannot be doubted. Although she was apparently unreadable as a judge throughout the trial, I imagine that lawyers for the police shuddered when she announced that she would be reserving judgment for several [End Page 97] months because she would be on parental leave for the birth of her partner's baby.30 Her ensuing judgment incorporated evidence of systemic sex discrimination throughout, demonstrating that this evidence is relevant to legal argument, preserving it in legal form for future litigation, and showing lawyers and law students how to construct such arguments.

MacFarland J. made a number of pointed observations that further a feminist analysis of the policing of rape. For example, she commented: "I found it unsettling that in at least half of this random sample [of police occurrence reports] the 'motive' ascribed to the offence is that of 'sexual gratification' which to me belies a very basic misunderstanding of this crime on the part of the investigators involved. As Dr. Jaffe stated, there is nothing sexual about rape; it is an act of violence."31 She expressed surprise at the police interpretation of the chief of police's apology to Jane Doe, which included a statement that a general warning should have been issued to women and that warnings would in the future be issued. The officer who wrote the apology for the chief said that it was not an acknowledgment of wrongdoing, but rather an effort to get local women's groups back to the discussion table. The justice responded: "His evidence was pure double-talk as far as I am concerned and simply makes no sense."32

When discussing the break in the investigation—the call from Callow's probation officer Debbie Alton to a constable who had earlier arrested Callow for assaulting his wife—MacFarland J. again commented on the disabling effects of police beliefs:

Not being a "sexual" assault, the Sexual Assault Coordinator's office was not aware of this information. To me this is indicative that the Metropolitan Toronto Police Force as a whole did not understand the fundamental point—that sexual assault is not about sex, it is about violence and anger against women. Had the force coordinated efforts to keep track of any and all acts of violence against women, they may have been aware of Callow's existence much sooner than they were.33

MacFarland J. found that the police had failed to warn Jane Doe as well as other women in the same danger, on the basis of a discriminatory assessment of the "harm" of rape. She contrasted police handling of the investigation of the "Balcony Rapist" with how they managed the search for the "Annex Rapist," who raped and beat the women he attacked. Her grasp of the issue [End Page 98] is captured by her attention to language: "I can only conclude because Callow's victims were 'merely raped' by a 'gentleman rapist'—according to the Oliver Zink Rape Cookbook definition [used by police]—this case did not have the urgency of the other."34 Finally, MacFarland J. was able to look past the rhetoric of "change" put forward by police. After noting that every officer who testified described sexual assault as a very serious crime, second only to homicide, she said: "Yet, I cannot help but ask rhetorically—do they really believe that especially when one reviews their record in this area? It seems to me it was . . . largely an effort at impression management rather than an indiction of any genuine commitment to change."35

Causation in Jane Doe

The element of causation for the negligence claim in Jane Doe was analyzed first by Justice Michael Moldaver, then of the Ontario High Court of Justice, Divisional Court, in a judgment holding that the proposed cause of action presented a legally viable theory of police responsibility.36 In response to the defence objection that causation was not provable by Jane Doe, Moldaver J. referred to the case of Funk v. Clapp,37 which held that an outcome is within the causal chain if it was that very outcome that the defendant had the duty to guard against. In other words, if the police had a legal duty to either warn or protect Jane Doe against this rapist, the result of their failure—her rape—cannot be said to be too "remote." At trial, MacFarland J. held that the police "caused" Jane Doe's suffering but cited to neither case law nor legal tests in support. Her decision is arguably premised on the "loss of chance" argument that the police failure to warn deprived Jane Doe of the opportunity to alleviate the threat posed to her.38

MacFarland J. brought a sophisticated understanding of male violence against women to bear on the causation issue. She did not assume the inevitability of male violence, perhaps due to the overwhelming evidence of sex discrimination in rape investigations throughout the force generally and the "Balcony Rapist" investigation particularly. It would be difficult indeed to hear this evidence and maintain that male violence against women simply exists in a vacuum, without the indifference of institutions such as the police. Nor did MacFarland J. presume that women's victimization is a fact of life. [End Page 99] While not persuaded that a competent investigation would have prevented Jane Doe's rape by facilitating a speedier arrest of the perpetrator, her conclusion was in part based on the fact that such a low priority and so few resources were allocated to this investigation that remedying the documentary deficiencies would not necessarily have resulted in the earlier apprehension of Callow.39 Further, she accepted that Jane Doe would have taken effective steps to protect herself had she been made aware of the specific risk that she was facing, thereby affirming women's agency.

Thus, while MacFarland J. viewed the causation element of the negligence claim as relatively straightforward, her understanding of this cause of action was informed by the evidence and analysis in the sex discrimination claim. Unfortunately, when she analyzed the damages claims, she failed to differentiate between the harm emanating from each wrong committed by the police and held that Jane Doe's sex discrimination damages were identical to those assessed under the negligence head of all the losses, pecuniary and non-pecuniary, flowing from the rape. A separate award for the wrong of sex discrimination, either in terms of damages or a declaration, may have revealed an even clearer causal link between the police failures and Jane Doe's damages.

Bonnie Mooney v. Canada

Bonnie Mooney escaped from two abusive relationships before she ended up in a relationship with Roland Kruska. She left her first partner because he was violent towards her and left her second partner when her daughter Michelle disclosed that he had sexually assaulted her and criminal proceedings against him ended in his acquittal. Not surprisingly, in light of this experience, Bonnie Mooney did not report Kruska's first three assaults upon her.

Kruska's fourth attack, however, nearly killed her. In 1995, Kruska beat Mooney with a cane and choked her almost to death—she was rendered unconscious and the blood vessels burst in her eyes. This attack took place in front of her daughter Michelle. Kruska was charged with assault with a weapon and assault causing bodily harm, even though the facts suggest that attempted murder would have been a more appropriate charge. His plea of guilty to assault was opposed by the prosecutor but reluctantly accepted by the trial judge, in part because Mooney recanted her earlier statements to police. She testified that she initiated the physical confrontation and that Kruska was a good partner and parent. [End Page 100]

Bonnie Mooney was unable to follow through on the criminal charges that resulted, with good reason. Kruska had managed to enter her hospital room while she was recovering from his attack, even though there was a warrant out for his arrest. He then turned up at her home upon her release from the hospital and told her that he had placed a gun in the house. In addition to his implicit threat, he claimed that he would move out, abandon any interest in her rural property where they had lived, and leave her alone if only he did not receive substantial jail time. She was so frightened that she did not tell the officer who came to her property looking for Kruska that he was hiding in the bushes and armed, at that very moment. No wonder Bonnie Mooney recanted. Believing that the prosecutor nonetheless had enough evidence to proceed without her, she was stunned when Kruska was sentenced in November 1995 to twenty-one days in jail and probation for one year. This was an extraordinary sentence, when one considers both his prior criminal record for violence (described below) and what the sentencing judge described as his "brutal" attack on Mooney.

Bonnie Mooney again asked the criminal justice system to intervene four months later to stop Kruska after he had finished his brief sentence and began escalating his threatening behaviour once more. At this time, he repudiated his agreement regarding the property and began to demand compensation. Mooney met him on 11 March 1996 in a public parking lot and entered his vehicle, leaving both vehicle doors open, to discuss the conflict. His immediate agitation frightened her and she leapt from his to her own vehicle and attempted to drive off. He blocked her vehicle, and then when she managed to get around him, he chased her at high speeds, forcing her through stop signs and red lights, almost hitting several pedestrians, trying to ram her truck and only finally desisting when she circled a friend's house several times and leaned on the horn.

Bonnie Mooney went directly to the police station, where she related Kruska's threatening behaviour to the intake worker, Rebecca Jones. Ms. Jones described her as one of the two most terrified citizens she had encountered in her one-and-one-half years on the job. She described Bonnie Mooney as shaking "violently," "sobbing," and "terrified." Ms. Jones paged Constable Craig Andrichuk, who arrived approximately twenty minutes later. His account of Mooney's demeanour was quite different: he described her as calm, relaxed, and not particularly fearful. Constable Andrichuk read Bonnie Mooney's statement and consulted with a senior officer. He looked up Kruska's record on the computer, where he was flagged as extremely dangerous: Kruska had a lengthy and serious criminal record that included convictions for trafficking, assault, sexual assault, manslaughter, and forcible confinement. Yet, at trial, Mooney testified that she was aware only of his manslaughter conviction, which she understood to have been based on self-defence. [End Page 101]

Most of Kruska's prior criminal charges involved his violence against women, making him even more dangerous to Boonie Mooney. In the case of the homicide, he had killed "the boyfriend of a female companion,"40 which may well have been motivated by sexual jealousy.41 In spite of the fact that Kruska was still on probation for his earlier attack on Bonnie Mooney, Andrichuk believed that Kruska had not made a specific threat and had not physically assaulted Ms. Mooney that day such that there was no basis for laying charges. He testified that he also consulted with Staff Sergeant John Lloyd, who agreed with this assessment. Constable Andrichuk advised Mooney to seek a restraining order with the help of a lawyer and to "stay in public places."

At trial, Mooney spoke of the effect that the interaction with Constable Andrichuk had on her: "He basically left me to die."42 She testified that her fear of Kruska was such that she "felt him coming out of every pore" in her body.43 She did not seek a lawyer's aid, believing that if the police claimed to be unable to protect her, then a lawyer would be useless. She attempted to protect herself by replacing her back door with a steel door, adding bars to the window at the back, having her friend Hazel White stay at her house, and telephoning Kruska periodically to ascertain his whereabouts.

Seven weeks after Bonnie Mooney's failed effort to secure police aid, Kruska found out that she was allowing Hazel to build a cabin on the land in dispute, and accused her of "sexual improprieties."44 That night, on 29 April 1996, he cut all the power and telephone lines and then broke into her home. Hazel White confronted Kruska in the hall herself, pushing Bonnie Mooney to the upstairs bathroom, saying, "He's coming for you." Bonnie Mooney broke the window, jumped, and ran, believing that Kruska would follow her and leave her family alone. Instead, Kruska shot and killed Hazel White and attempted to kill Michelle, whose arm was almost blown off by the shotgun blast. Michelle managed to push her little sister Kristy out the same window before she too escaped. Kruska then set the property on fire, as well as a neighbour's home, and killed himself. Mooney and her daughter fled to a neighbour's house, and Kristy hid shivering in a dog house for most of the night, not knowing whether Kruska was still alive and [End Page 102] searching for her. Mooney and her older daughter continue to suffer physical disability as a result. All three were seriously traumatized by Kruska's final attack.

Bonnie Mooney launched numerous complaints against the police for their failures, and the one against Constable Andrichuk was in fact upheld by his superiors. Pursuant to an Internal Affairs Unit review, Superintendent R.D. Hall found that Constable Andrichuk failed to conduct an adequate investigation of Bonnie Mooney's report. He stated that the "necessary corrective action" would be taken. But Andrichuk was not, apparently, disciplined in any way. The evidence at trial on behalf of the police was that the report constituted "operational guidance," not "discipline."45

After making this citizen's complaint, Bonnie Mooney persisted by seeking civil redress as well against the police. She sought legal advice from a Vancouver lawyer, and political solidarity and emotional assistance from the VRRWS. Like Jane Doe, she has braved the institutions of both the police and the media, and she has spoken publicly at conferences and offered her support to individual women who have experienced male violence and state inaction. Moreover, Bonnie Mooney's claim implicates the RCMP and the federal government as well, who have chosen to defend rather than condemn and distance themselves from Constable Andrichuk's actions.

At trial, Bonnie Mooney's lawyer framed her claim in negligence alone, relying primarily on the BC policy, the internal finding that Constable Andrichuk had failed to conduct an adequate investigation, and Jane Doe as a comparable case. Justice Ross Collver concluded that Constable Andrichuk owed a duty of care to Bonnie Mooney based upon his general duty to enforce the law and protect the public, as interpreted by the BC Violence against Women in Relationships Policy, which had been adopted by the RCMP. His conclusion drew on the specific information available to him regarding Kruska's criminal record, his past violence against Ms. Mooney, and the fear that she expressed when she turned to the Prince George police for protection. In light of the report of Superintendent Hall, it was easy for the judge to conclude that this duty had been breached by Constable Andrichuk, since, in his words, an investigation "was never properly commenced."46

Although Collver J. found that the police owed a duty of care to Bonnie Mooney and that they breached this duty, his other conclusions cast doubt on whether he understood the dynamics of wife battering. [End Page 103] In discussing Mooney's recantation of the November attack, Collver J. displayed no awareness of the threat and pressure that Mooney was under from Kruska and the possible ways that police could have relieved this pressure. He stated that she "compounded her lie by describing 'the whole issue' as 'bullshit'."47 Mooney's testimony was that she understood from her initial police contact that the evidence was sufficiently strong that she would not need to testify if she was too afraid; she also stated that the seriousness of the attack was so undeniable that she believed Kruska would be sentenced to four to five years of jail time.

In a statement that denies the implication of the state in facilitating Kruska's violence and allocates sole responsibility to the woman who is attempting to persuade her batterer that she is not solely responsible for the state's intervention, Collver J. commented: "She claimed that she was surprised when R.K. was jailed for only 21 days, but that is obviously inconsistent with her November 5th suggestion to the police that she did not want R.K. charged."48 Noting that Kruska had threatened to commit suicide to avoid a lengthy jail sentence in November, he stated "[t]hat, it seems, was yet another reason for Ms Mooney to revise her statement."49 Bonnie Mooney knew, as most women who work in shelters know, that a man's suicide threat is a cruel tactic meant to control her and is often intended to convince her that he will not be dying alone.

On appeal, the British Columbia Court of Appeal upheld the trial judge's rulings on duty and breach of duty and refused to re-consider the damages issues in light of the fact that it was dismissing the appeal by Bonnie Mooney in any event. For the trial judge and the BC Court of Appeal, the case turned on causation. At both judicial levels, the issue of causation was laden with assumptions about male violence against women and the justice system's response.

Causation in Bonnie Mooney

The issue of causation as resolved by the trial court and the appeal court was cast quite differently than the testimony of Constable Andrichuk or even the bare factual record would suggest. Constable Andrichuk either did not recognize the extreme danger that Kruska posed to Bonnie Mooney and her loved ones or he was indifferent to this danger. Although he apparently justified his actions to his supervisor after the fact on the basis that he did not think she was at risk, the RCMP report said that this [End Page 104] statement was belied by Constable Andrichuk's advice to Bonnie Mooney that she seek a peace bond and stay in public places. Thus, according to his own superiors, Constable Andrichuk perceived yet ignored a serious threat to this woman's life.

Constable Andrichuk's ability to assess the crime, like those officers in the "Balcony Rapist" investigation, was impaired by beliefs about women and the crime of wife assault. His testimony in court suggests his scepticism that wife assault is easily or commonly fabricated and is relatively innocuous as a crime. In his cross-examination at trial, for example, he explained that he failed to secure follow-up statements from Bonnie Mooney when she came to the station in March because he did not want to "jeopardize the investigation by leading the witness." When asked to explain this comment, he said that he did not want to be "unfair to the other party," meaning Kruska.50 Later in his cross-examination when he was asked whether his interpretation of the March incident would have led to criminal charges had he interviewed the two witnesses that Bonnie Mooney had identified to the intake worker, he was vague and uncertain. Constable Andrichuk explained that he may not have pursued charges and speculated that perhaps Kruska had been chasing his former partner in a truck in order to apologize to her.51

Constable Andrichuk's conclusion that "the incident on March 11th, 1996, did not fall into the criteria or into the definition of violence against women,"52 shows his failure to understand or follow the AG's policy. He was aware that Kruska had tried to kill Bonnie Mooney only months before, and the intake worker at the front desk had reported her demeanour as terrified. The trial judge concluded that Constable Andrichuk decided that the incident was not within the policy because he did not believe that Kruska had assaulted or explicitly threatened his former partner.53 Yet the transcript also reveals that Constable Andrichuk based his belief that Ms. Mooney was not in danger partly on what he described as her calmness, in spite of the fact that he admitted under cross-examination that she voiced her fear to him in that interview. He thereby breached the BC policy, which required a focus on a woman's subjective fear as the most critical indicia of danger. Constable Andrichuk spent at the most five minutes interviewing her54 and took no notes of the interview. This officer could not recall viewing the training video used to reinforce the policy on responding to male violence [End Page 105] against women in relationships,55 stating that if he had viewed it, it was "not memorable."56

Many of these statements display reliance upon sexist beliefs about women, misinformed views about wife assault, and a frightening disregard for the risks of femicide. Constable Andrichuk concluded that Bonnie Mooney was neither fearful nor in real danger because she was not hysterical, even though she told him that she was afraid and another woman described her as sobbing and shaking upon arrival at the station. He seemed to regard Kruska as potentially victimized by a false report on the part of Bonnie Mooney, as evidenced by his concern to be fair to Kruska and to imagine benign explanations for his frenzied chase and effort to stop Bonnie Mooney's flight by stalking her with his vehicle. In spite of being armed with information about Kruska's prior lethal and near-lethal behaviour as well as his willingness to chase her through the streets of Prince George, Constable Andrichuk simultaneously counselled Bonnie Mooney to seek a private, not a public, law remedy and to stay in "public" places,57 although she lived on a rural property.

In his trial judgment, Justice Collver did not address the "but for" test for casual connection, which was arguably met on the facts. Had the police investigated and acted upon Kruska's breach of probation or stalking behaviour, he would not have been at liberty to break into Bonnie Mooney's home seven weeks later. As Mooney said under cross-examination, Kruska would likely have been detained pending trial in light of his record of violence. She also said that she and her children would have had the opportunity to flee had he been jailed, even briefly, in March.

This application of the "but for" test is supported by another case against the Prince George RCMP. In that case, the negligence claim was based upon their failure to follow a suicide prevention policy in police lock-up by removing belts and checking regularly on prisoners. The RCMP attempted to non-suit the case by arguing that the prisoner whose death was the subject of the claim was not predictably suicidal and that, in any event, his death was too remote a consequence because his condition was pre-existing and his act of self-destruction was a new, intervening act. They lost this bid, and the claim was permitted to proceed to trial because the policy was in place precisely because not all suicide attempts can be foreseen with exactitude. The court went on to state that the deceased's suicide was not remote when it was the very outcome that the policy was designed to prevent.58 Clearly, the focus of the inquiry was whether the [End Page 106] police adherence to policy would have deterred the prisoner's suicide at the precise time that he was in custody, not whether he may have killed himself in the distant future in any event.

Instead of looking at the question of whether Kruska would have been able to attack when he did had Constable Andrichuk performed his job competently, Collver J. found that Kruska's "brutish behaviour" was "simply unpredictable." He held that "[t]here was no clear connection between Constable Andrichuk's failure to act on March 11, 1996 and Roland Kruska's fateful trip to Cluculz Lake seven weeks later."59 He stated that it was impossible to say whether police intervention would have dissuaded or incited further violence by Kruska. Finally, he concluded that the police "are guardians, not guarantors, of public wellbeing."60 He commented that

[f]or reasons that Bonnie Mooney could not explain, her plan to build a small home at the rear of her property for her friend Hazel White, prompted the angry telephone conversation on the morning before the shootings. Although I suppose a tenuous connection can be made between Kruska's desire to discuss the status of the Cluculz's Lake title on March 11, 1996 and his later upset about Hazel White's proposed residence on the property, the absence of any communication between Ms. Mooney and Kruska in the intervening seven weeks suggests that the brief encounter on March 11th was of little if any significance with respect to what happened on April 29th.61

Collver J.'s designation of Kruska as "unpredictable" misses entirely the point that he used violence deliberately to control Bonnie Mooney and that the state did nothing to stop him. Abusive men escalate their threats and violence in order to re-assert control upon separation.62 As the intervener VRRWS later argued at the appeal level, one of the most dangerous times for women is in the first eighteen months after separation from an abusive male partner.63 Police know this fact, as do researchers, academics, policy-makers, lawyers, and activists committed to halting femicide. Statistics Canada's data as well as other reports document femicide as the outcome [End Page 107] of men's escalating and desperate efforts at coercive control of their female partners.64

All of the actions that Bonnie Mooney took to reassert control over her life and to secure her freedom were accompanied by strong reactions from Kruska that would have constituted clear warning signals of danger to anyone who knows anything about male violence against women. When she left the relationship, Ms. Mooney attempted to maintain autonomy over her home, which incited him in the 11 March incident. She had a woman friend stay with her and her children to deter Kruska and proposed to build that friend a home on the land, depriving Kruska of his access to her and further de-stabilizing his control. The fact that he accused Ms. Mooney of "sexual improprieties" underscores his heightened anxiety and jealousy. Kruska's sense of immunity and his power must have been increased by the fact he was never brought to account by his probation officer for his threatening, stalking behaviour in early March, let alone confronted by police in the seven intervening weeks.

Collver J.'s ruling on causation was upheld on appeal, by a two-justice majority at the BC Court of Appeal. Justice John Hall held that causation was primarily a factual determination and that the trial judge's decision should be accorded deference. He stated that he agreed with Collver J.'s factual assessment in any event, but made a further comment that undercuts Collver J.'s conclusion that Kruska was simply unpredictable. After noting Kruska's various contacts with the criminal justice system as well as the fact that the consequences to him of further offending included deportation to Germany, Hall J.A. stated: "Absent deportation from Canada or permanent incarceration, it appears he posed a continuing risk to do harm to persons with whom he had contact."65 This statement supposes, in effect, that Kruska's violence was inevitable and nothing could have stopped him. It suggests as well that Kruska's violence was indiscriminate and neither calculated nor gendered. It also assumes a test for causation that cannot be met: it suggests that Ms. Mooney must prove that intervention would have stopped Kruska permanently and absolutely. In a subsequent paragraph, Hall J.A. commented that "[t]he events of 29 April 1996 occurred at a considerable remove in time from 11 March."66 Like Collver J., he disconnected the source of Kruska's "murderous rage" by suggesting what [End Page 108] he believed was a "new," inexplicable source: "This event appears to have been triggered by his anger over the proposed use to be made of the property."67

Justice Kenneth Smith provided more elaborate legal reasons, but refused to apply the test for causation that requires only that the defendant's negligence have materially increased the risk of further violence by the offender. Bonnie Mooney's counsel had argued that another test for causation should be used to determine liability in her case because the claim that police intervention would have changed the course of Kruska's conduct is simply not capable of definitive proof one way or another. Smith J.A. reviewed the case law that has invoked this test and concluded that it was available only for those cases where the defendants "controlled all possible physical agents of harm and it is impossible to identify scientifically the pathogenesis of the harm."68 Here, because Kruska himself posed a pre-existing risk and because "a common-sense factual inference of causation may be possible despite the absence of a definitive scientific opinion of causation,"69 Smith J.A. concluded that it would be too "radical" to abandon the traditional test for causation.

Yet, without the benefit of any evidence, expert or otherwise, Smith J.A. held that "[s]hort of deportation or substantial time in custody, which were remote outcomes, it is difficult to imagine a sanction with realistic potential to forestall further violence by Mr. Kruska."70 It is unclear why he believed, in light of Kruska's record of violence, that conviction for breach of probation or stalking would have brought neither deportation nor a sentence of at least seven weeks incarceration since there was no such evidence on the record. In fact, the factual record before the court suggested the exact opposite. Kruska was subject to a valid deportation order that had only to be executed, and the judge who sentenced Kruska for his earlier attack on Bonnie Mooney clearly would have imposed a further sentence were charges for breach of probation to have been pursued in his court. In the words of the dissenting judge of the BC Court of Appeal: "An experienced trial judge predicted further violence and gave Bonnie Mooney an assurance that the authorities would respond to any complaint if she were threatened again."71

Smith J.A. held that it was not enough for counsel to point to the BC policy or even to the training video that contained a statement that [End Page 109] "proactive arrest and prosecution . . . helped to cut the occurrences in half"72 to prove the deterrence claim. Instead, he asserted that "the mere assertion of a proposition . . . is not the same as proof of that proposition."73 In fact, the evidence for this proposition74 is so overwhelming that almost every jurisdiction in the United States and Canada has acted upon it by creating responses in the form of policies similar to those of the BC attorney general's office and incorporated by the RCMP. These policies have frequently been based, as was British Columbia's, upon the evidence, advocacy, and expertise provided by women's frontline organizations such as the VRRWS.75

All of the judges in the Mooney litigation could well have taken judicial notice76 of this proposition given the notoriety of both the evidence and policies. They could also have acknowledged that the policy, with its focus on the woman's subjective fear over the police officer's "objective" evaluation of the risk she faces, is in place precisely to respond to systemic discrimination by police in their failure to enforce the criminal law against wife assault, based upon sex discriminatory beliefs.77 In fact, one would have thought that it would be untenable, legally, politically, and practically, for the police and the attorney generals of both British Columbia and Canada to disown their own policy by claiming that its effectiveness is unknown.

It is clear not only that these policies generally deter but also that Kruska could have been deterred by a strong law enforcement intervention. The one thing Kruska feared was criminal justice intervention and imprisonment. In fact, it was this very anxiety that he conveyed to Bonnie Mooney when he demanded that she revise her testimony against him. [End Page 110] His fear provided the police with the one leverage that could have diverted Kruska's path on the day that he broke into Mooney's home.

The only bright light that is discernible for feminists in the Mooney litigation is the reflection of the intervener VRRWS's arguments in the dissenting judgment by Justice Ian Donald of the appeal court. The VRRWS argued that the BC policy emerged out of a history of sex discriminatory policing of male violence against women that has been documented and exposed across North America. The VRRWS argued that the police failure to actually follow their own policy is by no means unique to the Mooney litigation and that the systematic failures are sex discriminatory. These failures have been pointed out to the BC police by researchers and government commission reports alike. The factum describes the gap between the policy and the reality of non-enforcement as "impression management," using the language of MacFarland J. in Jane Doe.

The VRRWS argued that since tort principles should, according to the Supreme Court of Canada, be interpreted in a manner consistent with Charter values, the relationship between the policing of male violence and women's rights to equality and to security of the person must inform negligence principles such as causation. Like Mooney's counsel, the VRRWS therefore argued for a broader understanding of causation. The VRRWS recognized that not all women will have facts that fit within a "but for" test such as Bonnie Mooney's, where the man had a record of homicide and was on probation with a "no contact" provision that, if enforced, would have removed him from the streets at the relevant time. However, while we may not know when and how an individual man will pursue violence against his former partner, we do know that non-intervention by police materially increases the risk that he will escalate his violence. The VRRWS argued that since it is impossible to prove with precision that a particular intervention would have prevented a specific act of violence, adherence to the "but for" test will impose an impossible burden of proof even in circumstances where there is clear police negligence and a strong public interest in ensuring that police enforce these policies. The VRRWS urged the court to follow Moldaver J. in Jane Doe and find that Kruska's violent rampage was not too remote if it was this foreseeable harm that created the duty in the first place.

The dissenting judgment by Donald J.A. is not uniformly positive. Unfortunately, he too used language that described Kruska's instrumental behaviour as "erratic, irrational."78 Further, Donald J.A. suggested that the "but for" test was not met on the facts because intervention may not have stopped Kruska and there was no evidence that Kruska knew that Ms. Mooney attempted to secure police protection. Surely it matters not [End Page 111] whether it can be proven that Kruska knew that Mooney had contacted police. After seven weeks, he certainly did know that the police were not involved, for whatever reason.

On the positive side, Donald J.A. situated the legal issues at stake within the broader context of the appropriate state response to male violence against women. He agreed that the test for causation should be altered where direct proof of causality is impossible, where it is established that the police have failed in their duty, where the woman would otherwise be left with a right but no remedy, and where the public interest in enforcing the police obligation to protect is strong. This justice reproduced the BC policy, was prepared to accept that police intervention is an effective deterrent in many cases,79 and recognized that the causation ruling in Mooney would render the police duty "virtually unenforceable."80 In addition to ruling in Ms. Mooney's favour on the causation issue, Donald J.A. specifically rejected the outrageous argument by the respondents that she was contributorily negligent for failing to leave Kruska earlier, failing to take steps to protect herself, and maintaining communication with him. Likewise, he rejected their efforts to reduce the damage awards set out by Collver J. in supplementary reasons assessing damages pending appeal81 by suggesting that both Bonnie Mooney and her daughter Michelle were already "damaged" when Kruska went on his rampage that night in April 1996.

Leave to appeal to the Supreme Court of Canada on the causation issue was denied with costs but without reasons.82 The Court thus lost the opportunity to engage in an explicitly policy-driven analysis of causation, in light of section 15 of the Charter. It effectively ensured that clear police negligence is immunized by tort law and excused by the narrow interpretation of a legal doctrine that was never designed for the allocation of responsibility for femicide.

Section 15 as a Lost Opportunity

What possible difference could a section 15 Charter argument have made to Bonnie Mooney's case? There is no question that discrimination in the enforcement of criminal law claims is novel and that its underlying legal theories have yet to be explored by Canadian courts beyond trial level decisions such as Jane Doe. Turning to the US jurisprudence on such claims, the courts have held that a denial of equal protection by police can be proven by showing either a formal policy of differentiating wife assault [End Page 112] from other forms of assault or an administrative classification or practice of treating men's assaults on their wives less seriously than assaults by strangers. The US courts have suggested that the existence of a de facto policy of different treatment can be proven by evidence demonstrating a pattern of inadequate police response to other women in similar circumstances, but they also allow such claims to proceed where the individual woman can demonstrate a pattern of neglect with respect to her reports to police or where "a single brutal incident . . . [is] sufficient to suggest a link between a violation of constitutional rights and a pattern of police misconduct."83 On the facts available, Bonnie Mooney's claim may have been argued on an administrative classification basis and proven by resort to all three theories, using pattern evidence of the Prince George detachment's treatment of women's reports of marital violence, the entire history of Bonnie Mooney's interaction with the RCMP in British Columbia, and the facts surrounding her final attempt to secure police aid.

As a section 15 claim, Mooney v. Canada would have permitted counsel to discover the RCMP on their response to male violence against women and to introduce evidence regarding historic and current patterns of sex discrimination in the enforcement of the law against assault when it comes to women in relationships. Counsel first would have been entitled to pursue a broader range of documentary disclosure as part of preparation for trial. Like the leap of faith that lawyers for Jane Doe undertook when they relied on feminist expertise that advised them that they would indeed find evidence of systemic sex discrimination in the investigation of sexual assault reported by women to police, one could assume that over thirty years of feminist experience and analysis is not mistaken. Police fail to enforce the laws that prohibit men's assaults upon their wives in a fairly predictable manner, and the discovery process may well have revealed evidence that supports the proposition that the Prince George detachment was not living up to its obligations to protect women's safety and lives in a systemic way.

For example, a recent study by George Rigakos of the handling of reports by Delta, BC, police of male violence against female partners found that police rarely enforce even "zero tolerance" laws requiring arrest. His findings held true even where there is an outstanding protection order signed by a judge, the man is still on the premises, and the woman wants him arrested.84 Like the Jane Doe case, the thematic failures would likely include unequal devotion of resources to policing wife assault; inadequate training, monitoring, and disciplining of officers who deal [End Page 113] with women's reports; neglect of internal and external reports evaluating the inadequate response to wife assault and recommending change; and systemic sexism in the ways women's complaints are handled, from the language used, to the underlying assumptions and stereotypes, to the actual outcomes of police interventions.

A section 15 claim would also have presented the opportunity to introduce the evidence of feminist experts in order to educate the judges and to illuminate the underlying misogyny of police statements and practices, as was done in the Jane Doe litigation. Rigakos's research shows that the Delta police hold and freely express beliefs that shed light on the police subculture that feeds their failure to protect battered women.85 Further, the transcript of the Mooney case shows that the entire strategy of the federal government defending Mooney's claim was deeply sexist. Their first main argument was that Bonnie Mooney's losses were entirely of her own making: she knew early in the relationship that Kruska was dangerous; she chose to stay with him and to appease him; she did not seek police intervention for his first three attacks; and she lied to police regarding the fourth. Their second argument was that Kruska was unpredictable, crazy, and dangerous such that police could not have stopped him. These arguments are inherently contradictory. Together, they ask us to believe that Bonnie Mooney could have predicted and prevented Kruska's violence but that the Prince George RCMP could not. Sadly, these arguments persuaded Collver J., who implicitly allocated responsibility to Mooney for her November recantation and accepted that Kruska was so unpredictable that no causal link could be maintained between police negligence and the tragedy on 29 April.

The expertise of feminists could have brought home to the judge that Kruska's final attack was both predictable and preventable, and could have shown how very implicated the police are in male violence against women every time they investigate reports such as Mooney's. Battered women are often torn about police intervention, for to seek it and be refused greatly exacerbates the man's power and sense of immunity from authority, thereby increasing the danger she is in.86 He may punish her for her help-seeking behaviour and may throw off caution in his use of extreme violence on the basis that he feels justified and knows that nothing will be done to [End Page 114] stop him. No wonder Bonnie Mooney hoped that the state would assume full responsibility for prosecuting Kruska to the extent of the law. She could not afford to do it herself without deeply compromising her safety. Half measures by police only heightened her danger.

This context would have illuminated the stereotypes and misconceptions that were operative in the police response to Bonnie Mooney, from reliance on a belief that women under real threat are hysterical, to the supposition that "domestic violence" is a two-way street, to the self-serving and utterly non-sensical claim that women such as Bonnie Mooney can do something to protect themselves from men like Roland Kruska but the police cannot. Naming the wrong of sex discrimination opens the possibility of systemic or structural remedies, and, most importantly in light of the rulings of the trial and appeal judges in Mooney, it side-steps the causation problem by re-conceptualizing the wrong.87

Conclusion

The feminist victory accomplished by Jane Doe was the result of years of knowledge-creation, sustained collaborative work, and commitment to legal and social change. Looking back at the various contributions to this win, it appears that it was only possible because of the combined efforts of feminist activists, lawyers, experts, and judges. At the same time, as Jane Doe herself well knows, the institution of policing has not and will not change in response to one or even many successful legal claims. Feminists continue to challenge the police response to male violence against women and to re-invent strategies to expose the ways in which police are implicated in perpetuating this violence.

Wins like Jane Doe can only be reproduced through comparable investment of feminist resources and ingenuity. In this regard, it is absolutely critical that sex discrimination claims pursuant to section 15 be advanced at the trial stage if we are to have any potential to shape the facts, the evidentiary record, and the analytical framework through which the case will be interpreted by judges. The Mooney case illustrates quite clearly the difficulties that will be encountered in attempting to insert these pieces on appeal.

The stakes in the Mooney case are so high for Canadian women that the lost opportunity for it to have been argued as a Charter violation of women's rights to equality and to security of the person is tragic. Now that the [End Page 115] Supreme Court of Canada has refused to hear Bonnie Mooney's claim, there is no effective lever to compel police to enforce their own policies and protocols to protect women and children whose lives are at risk. If femicide is too "remote" here, when the man was known to be capable of homicide, was flagged in the police computer as extremely violent, had, to police knowledge, tried to kill the woman before, and then killed within weeks of the police failure, then what facts would meet the causation requirement? All other avenues for police accountability are effectively foreclosed. The internal discipline process apparently yielded neither discipline nor systemic change; the reports of commissions of inquiry such as that of Justice W.T. Oppal88 and jury recommendations arising out of coroner's inquests such as the May/ Iles Inquest89 can be ignored; and no province in Canada has a citizen's complaints process that is independent of the police. A loss in Mooney sends an unmistakable message to police that they are free to ignore these policies with impunity and further empowers violent men with the implicit consent of the state. It also signals to women that indeed these policies and the law itself are merely exercises in "impression management," even when their very lives are at stake.

Taken together, Jane Doe and Bonnie Mooney as cases show how fragile legal gains are for women in the policing of male violence against women. Like all of our rights and freedoms, equality rights must be claimed and re-claimed to be realized, and yet, in the legal arena and particularly at the trial level, lawyers are notoriously remiss in raising section 15 equality arguments.90 Feminist activists, legal educators, and lawyers can only do so much to alert and persuade non-feminist lawyers that their brief includes this sort of advocacy. Judges too bear a responsibility for reading the common law consistent with women's equality rights. This responsibility is made more acute by the role that the judiciary has played in the social entrapment of battered women. Taking judicial notice of the widespread discrimination against women in the policing of wife battering, incorporating the knowledge about male violence generated by the women's movement in Canada, and shaping the common law of causation to reflect social and legal policy changes achieved by women would be a good place to start. [End Page 116]

Elizabeth A. Sheehy

Elizabeth A. Sheehy is a professor in the Faculty of Law at the University of Ottawa, where she teaches criminal law and procedure and women and the legal profession. She is the proud editor of the 2004 book Adding Feminism to Law: The Contributions of Justice Claire L'Heureux-Dube; the co-editor, with Professor Sheila McIntyre, of a book forthcoming in 2006, entitled Calling for Change: Women, Law and the Legal Profession; and is currently working on her own book examining the trial transcripts of battered women who have killed their male partners. To her great astonishment, she was awarded an LL.D., honoris causa, in the summer of 2005 by the Law Society of Upper Canada for her feminist activism in law.

Footnotes

1. Jane Doe v. Metropolitan Toronto Police (1998), 39 O.R. (3d) 487 (Ont. Ct. Gen. Div.) [Jane Doe].

2. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

3. Bonnie Mooney v. Canada (2004) B.C.C.A. 402 [Mooney (C.A.)].

4. Violence against Women in Relationships Policy (Victoria: Ministry of the Attorney General, 1993). This policy was incorporated into the RCMP operational manual.

5. James Ptacek, Battered Women in the Courtroom: The Power of Judicial Responses (Boston: Northeastern University Press, 1999) at 10.

6. Ibid. at 9.

7. See generally R. v. Salituro, [1991] 3 S.C.R. 654; and Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. For discussion of the proposition that judges have the right if not an obligation to incorporate an equality analysis even when counsel has not raised the issue, see Judge Donna Hackett, "Finding and Following 'The Road Less Travelled': Judicial Neutrality and the Protection and Enforcement of Equality Rights in Canadian Criminal Courts" (1998) 10 Canadian Journal of Women and the Law 129 at 140.

8. Jeffrey Griffiths, Review of the Investigation of Sexual Assaults: Toronto Police Services [known publicly as the Jane Doe Social Audit] (Toronto: Toronto Audit Services, 1999).

9. Jane Doe, The Story of Jane Doe (Toronto: Random House, 2003).

10. Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984) [Thurman]; and Estate of Maria Teresa Macias v. Ihde, 219 F.3d 1018 (9th Cir. 2000) [Macias].

11. Little Sisters Book and Art Emporium v. Canada, [2000] 2 S.C.R. 1120.

12. R. v. Thompson (23 March 1990) (N.S. Prov. Ct.) [unreported]. See also R. v. Smith (1991), 109 N.S.R. (2d) 394 (Co. Ct.), affirmed, [1993] N.S.J. No. 124 (C.A.).

13. R. v. White (1994), 136 N.S.R. (2d) 77 (C.A.).

14. Doe, supra note 9 at 81–3.

15. Ibid. at 77–8.

16. Ibid. at 72.

17. Ibid. at 79.

18. Ibid. at 64–70.

19. Melanie Randall, "Sex Discrimination, Accountability of Public Authorities and the Public/Private Divide in Tort Law: An Analysis of Doe v. Metropolitan Toronto (Municipality) Commissioners of Police" (2001) 26 Queen's Law Journal 451.

20. Jane Doe, supra note 1 at 498–99.

21. Plaintiff's Pre-Trial Conference Memorandum in Jane Doe, at 10, quoting from the report of PC Wills. This is certainly the first time that I have heard vaseline described as a "pornographic aid."

22. Jane Doe, supra note 1 at 521.

23. Ibid. at 503.

24. Doe, supra note 9 at 117.

25. Ibid. at 195.

26. P.A. was asked by a police officer why it took her so long to answer a telephone call. She responded that she had just stepped out of the shower, to which the officer replied that "he should have been there." Jane Doe, supra note 1 at 503.

27. Ibid. at 503–4.

28. Ibid. at 516–17.

29. Ibid. at 521.

30. Doe, supra note 9 at 275.

31. Ibid. at 500.

32. Ibid. at 518.

33. Ibid. at 513.

34. Ibid. at 516.

35. Ibid. at 520.

36. Jane Doe v. Metropolitan Toronto Police (1990), 74 O.R. (2d) 225 (Div. Ct.).

37. Funk v. Clapp (1986), 35 B.C.L.R. (2d) 222 (C.A.) [Funk].

38. Randall, supra note 19 at 479.

39. Jane Doe, supra note 1 at 515.

40. Mooney (C.A.), supra note 3 at para. 111, per Hall, J.

41. The mother of this victim describes Kruska as having accused her son of stealing his job: Louise Kennedy, Sex With All the Wrong Men (Victoria: Trafford, 2003) at 206. She seems to have been unaware of the relationship between her son and Kruska's "female companion."

42. Mooney v. British Columbia, 2001 BCSC 419 at para. 23 (S.Ct.) [Mooney (S.Ct.)].

43. Ibid. at para. 29.

44. Mooney (C.A.), supra note 3 at para. 119.

45. Mooney (S.Ct.), supra note 42 at para. 51.

46. Ibid. at para. 52.

47. Ibid. at para. 8.

48. Ibid. at para. 15.

49. Ibid. at para. 14.

50. Cross-Exam of Cst. Andrichuk, Trial Transcript, No. C975107, Vancouver, BC, 23 February 2001 at 56, line 16 [Trial Transcript].

51. Ibid. at 68, line 3.

52. Ibid. at 20–1, lines 46 and 1, respectively.

53. Mooney (S.Ct.), supra note 42 at para. 49.

54. Trial Transcript, supra note 50 at 44, line 18.

55. Ibid. at 18, line 30.

56. Ibid. at 18, line 43.

57. Mooney (S.Ct.), supra note 42 at para. 22.

58. Funk, supra note 37 at 230–1.

59. Mooney (S.Ct.), supra note 42 at para. 65.

60. Ibid. at para. 64.

61. Ibid. at para. 63.

62. See, for example, Martha Mahoney, "Legal Images of Battered Women: Redefining the Issue of Separation" (1990) 90 Michigan Law Review 1.

63. Mooney (S.Ct.), supra note 42, Factum of the Intervener The Vancouver Rape Relief and Women's Shelter, at para. 9.

64. See, for example, Maria Crawford, Rosemary Gartner, and Myrna Dawson, Woman Killing: Intimate Femicide in Ontario 1991–1994 (Toronto: Women We Honour Action Committee, 1997) at 31; and Canadian Centre for Justice Statistics, National Trends in Intimate Homicides, 1974–2000 (2002) 22(5) Juristat, where it is reported that separated women were killed at the highest rate among spousal homicides.

65. Mooney (C.A.), supra note 3 at para. 142.

66. Ibid. at para. 143.

67. Ibid.

68. Ibid. at para. 153.

69. Ibid. at para. 173.

70. Ibid. at para. 194.

71. Ibid. at para. 25.

72. Ibid. at para. 196.

73. Ibid. at para. 195.

74. In the US cities that have adopted strong law enforcement, the impact on domestic homicide rates varies from a 50 per cent reduction (New York City, San Diego, Tulsa, and Nashville) to 75 per cent (Newport News, Virginia), to 100 per cent over a ten-year period in Quincy, MA. Barbara J. Hart, "Arrest: What's the Big Deal" (1997) 3 William and Mary Journal of Women and the Law 207.

75. Jane Armstrong, "Police Stand Spurred Crime, Court Told," Globe and Mail (21 November 2003) A7.

76. R. v. R.D.S., [1997] 3 S.C.R. 484.

77. For recent studies, see Kelly Hannah-Moffat, "To Charge or Not to Charge: Front Line Officers' Perceptions of Mandatory Charge Policies," in Marina Valverde, Linda MacLeod, and Kirsten Johnson, eds., Wife Assault and the Canadian Criminal Justice System (Toronto: Centre of Criminology, University of Toronto, 1995) 35; and George Rigakos, "The Politics of Protection: Battered Women, Protection Orders, and Police Subculture," in Kevin D. Bonnycastle and George S. Rigakos, eds., Unsettling Truths: Battered Women, Policy, Politics, and Contemporary Research in Canada (Vancouver: Collective Press, 1998), 82.

78. Mooney (C.A.), supra note 3 at para. 81.

79. Ibid.

80. Ibid. at para. 88.

81. Bonnie Mooney v. Canada, [2001] B.C.J. No. 1524.

82. Bonnie Mooney v. Canada, [2004] S.C.C.A. No. 428.

83. Thurman, supra note 10, held that the police response on the day that Thurman suffered life-threatening injuries amounted to such an "incident," quoting Owens v. Haas, 601 F.2d 1242 at 1246 (2d Cir. 1979).

84. Rigakos, supra note 77 at 90.

85. For example, Rigakos, supra note 77, quotes constables as saying: "Women are using these orders to manipulate their husbands" (at 88); "Why should I arrest a man if he was invited in by the woman? Its her fault, not his. What I'd like to do is arrest her" (at 86); "You have some real douchebags that keep house like a pig sty. Then the guy gets angry... and she's drunk and slaps him" (at 87).

86. Robbin S. Ogle and Susan Jacobs, Self-Defense and Battered Women Who Kill: A New Framework (Westport, CT: Praeger, 2002) at 76.

87. This was precisely the reasoning of the 9th Circuit in Macias, supra note 10 at 1028, when it overturned the lower court's dismissal of the cause of action on the basis of causation. It held that a violation of the right to equal protection of the law can be made out without proving that the violation caused Mrs. Macias's death.

88. Closing the Gap: Policing and the Community, Report of the Commission of Inquiry (Victoria: 1994).

89. Inquest into the Deaths of Arlene May and Randy Iles, Jury Verdict and Recommendations (Toronto: Coroners Courts, 16 February – 2 July 1998).

90. Section 15 arguments are not even raised by lawyers at trial in criminal cases where the equality issues are equally obvious. See Hackett, supra note 7 at 131, who recounts her data collection with other judges in the Toronto area. Among them, they had heard over 120,000 cases and not once had counsel ever raised a section 15 argument.

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