Tuesday, July 28, 1998

Phinjo Gombu

p. B1.

Jane Doe appeal condemned

Councilors reject suggestion in letter to police board

Three Toronto councillors, all lawyers, have made a preemptive strike to stop any appeal of the Jane Doe court verdict against the police force.

Councillors David Miller (High Park). Blake Kinahan (Lakeshore Queensway) and Lorenzo Berardinetti (Scarborough City Centre) yesterday released a signed letter to the police services board condemning an appeal recommended by the law firm of Weir and Foulds.

Since money for any appeal comes from a city reserve fund, the issue will come before the city's powerful strategic priorities committee tomorrow. Depending on what happens there, it may go to council later that day. Berardinetti sits on the strategic priorities committee.

Earlier this month, Madam Justice Jean MacFarland found Toronto officers were negligent by failing to warn a woman known only as Jane Doe about a serial rapist they knew was operating in her neighborhood 12 years ago.

Police services board chair Norm Gardner said the issue is back before politicians, despite a 51-1 vote earlier this month to apologize to Doe and not appeal the verdict, because they didn't have legal opinion at the time.

He said any appeal would only involve MacFarlands sweeping condemnation of the force's investigation of sexual assaults in recent past decades. Doe would still receive the $220,000 in damages she was awarded.

Doe's lawyer, Sean Dewart, described the consideration of an appeal "unfortunate."

The move comes on the heels of an announcement last week by the Ontario Chiefs of Police Association, saying an appeal of the verdict was necessary.

Councillors decry appeal in Doe case

Weir and Folds, the firm that fought and lost the case, has told the police board that by not appealing the decision, the city could open itself to liability from other lawsuits and cost taxpayers millions of dollars.

The matter has taken on some urgency because the board has until next Tuesday to make any appeals. This week's council meeting is the last chance to reopen the matter, but it requires a two-thirds majority vote.

Miller and Kinahan say it's time to settle the case once and for all. Trying to pay Doe's damages and still appeal the judge's criticism of the force was stretching things a bit, Miller said.

Lawsuit fears

"Enough is enough," Miller said. "(Jane Doe) has been through enormous legal difficulties adding to the horrible experience she went through. It's time to turn a new page.

"For me, one of the problems is that you've had lawyers making decision all along (in this case). At some point, the client has to make a decision and in this case the clients are the citizen of Toronto."

All three councillors said that, as lawyers, they disagreed the verdict was precedent-setting and would open the floodgates to other lawsuits. They said the ruling, as it stands, has no binding effect on other trail judges. However, if an appeal were unsuccessful, it would have the unintended effect of making the ruling binding on all trail judges across Toronto, they said.

The councillors argued there has been no flood of lawsuits since Doe won the right to sue police in 1990, a right that was upheld by court of appeal.

The three also said the total cost of the lawsuit, including damages to Doe, could reach $1.5 million, not including an appeal.

Gardner said he would not be recommending an appeal by the board, but refused to be pinned down on which way he would vote if the issue came before council.

He insisted the issue was back before the council only because he didn't want anybody to come back to the police services board and say you did not warn us about the potential for liability.

'Open cheque'

"If there is going to be any decision with regards to any appeal, its not going to come from the board, it's going to come from the city."

Asked about the Weir an Folds argument about liability, Gardner said: "If I'm to believe the solicitors, (the Jane Doe case is) an open cheque for people who have allegations against police."

However, fellow police service board member and vice chair Judy Sgro, said: "I think the onus is on the other person to prove that the investigation into their case was not done right, and I think that's a pretty difficult thing to do. " "I don't think we're opening the doors to millions of dollars in lawsuits."

Dewart, Doe's lawyer. said that, despite the assertion by Toronto police that they are "committed to change, they just can't accept that they've made a mistake."

"Balcony Rapist" case... [Fiona Stewart]

Created: February 14, 1999
Last modified: February 14, 1999

J.D. Jane Doe, c/o Walnet Institute
Box 3075, Vancouver, BC V6B 3X6
Tel: +1 (604) 488-0710