Lisa Priest

Judges rule woman can sue police

In a landmark ruling, three Court of Appeal justices yesterday denied police lawyers the right to appeal a lower court ruling that allowed the anonymous victim to proceed with her $600,000 lawsuit.

It took the judges less than 45 seconds to arrive at their decision as the victim sat in the courtroom and listened.

"It may open a floodgate," said Christie Jefferson, executive director of Women's Legal Education and Action Fund, a women's advocacy group supporting Jane Doe's case.

"There really is no other case like this in Canadian history," Jefferson added outside Osgoode Hall yesterday.

Jane Doe, whose identity is shielded by a court order, launched a lawsuit against Metro police, arguing her 1986 rape might not have happened had officers properly investigated a series of attacks in her Toronto neighborhood and warned women of the rapist.

She is seeking damages for pain and suffering, inconvenience and loss of enjoyment of life. Court documents say she suffers from serious and prolonged bouts of depression and anxiety.

Mary Cornish, the rape victim's lawyer, argued that her client was used as bait to try to catch Paul Douglas Callow, a criminal known as the "balcony rapist." Callow was sentenced three years ago to 20 years in prison for knife-point sex attacks on five Toronto women in 1995 and 1996.

The victim's name was on a police list of women living in the area of Church and Wellesley Sts. who were in particular danger of attack, Cornish has said. Yet Jane Doe wasn't warned about the rapist.

"Police were aware of the danger she was in and failed to warn her and failed to protect her" Cornish said. "There was a duty to protect her and to prevent the crime." Cornish has said the victim faced sexual discrimination on two counts:

• Police considered the safety of women who were at risk less important than catching the balcony intruder.

• Potential victims weren't warned because officers, allegedly accepting an unfair stereotype, believed women would be hysterical if told of the serial rapist.

Cornish argued that the failure to issue a warning violated Section 7 of the Charter of Rights, guaranteeing sexual equality, and Section 28, requiring Charter rights to apply equally to men and women.

Yesterday, police lawyer Bryan Finlay argued that to sustain a claim of negligence the police conduct must be proven irresponsible, arbitrary or unreasonable.

Court lets rape victim sue police

"The decision not to warn was a policy," Finlay said, to the frequent interruptions of appeal judges. "You can't convict the police for making that policy decision."

Greg Richards, another lawyer arguing for the police, said Charter arguments had no place in the matter. Officers were in no way responsible for what happened to Jane Doe, and their conduct did not place her at an increased risk of rape, Richards said. The purpose of the Charter is to protect people from state intervention, not to protect people from each other, he noted.

"The plaintiff must demonstrate that state actions gave rise to her injury," Richards said.

Three Supreme Court judges ruled in August that Jane Doe could proceed with her case. Police lawyers took it to the Court of Appeal.

Staff Superintendent Charles Maywood of Metro's detective operations said police are well prepared to go to trial and his personal feeling on the matter is that officers did nothing wrong.

Jefferson said a trial means that police records will now be of public record. "Now we can actually get access to the evidence and we can figure out how much the police knew," she said.

"This woman is actually going to get her day in court after four years," she said, adding that the victim will not speak publicly about her ordeal until then.

Cornish said she was delighted with the decision. "It's our view that public agencies should be accountable."