Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police: An Analysis in Police Neglect and Gender Discrimination
By: Caleb Harder
Tags: Rape Culture, Criminal Law, Police Brutality, Sexual Assault, Canadian Law

Pictured above is a headline from the Toronto Sun in 1997. In the “Balcony Rapist” case, the Metropolitan Toronto Police Force failed to give warning in the community that sexual assaults were taking place. This disallowed them the ability to protect themselves from the perpetrator be essentially used as “bait” to capture the suspect.

The case of Jane Doe v Toronto (Metropolitan) Commissioners of Police raises two fundamental concerns regarding police conduct and Charter rights. The plaintiff claims the possibility of police negligence and violation of the Canadian Charter of Rights and Freedoms under Sections 7 and 15.

Ms. Doe brought a civil lawsuit against the Metropolitan Toronto Police Force (MTPF) for failing to alert the women of a serial rapist committing offenses in her area. At the early hours of August 24, 1986, the plaintiff was awoken in her second-floor apartment by Paul Douglas Callow, who held her at knifepoint. Callow then proceeded to rape the victim in her bedroom. The offender used the balcony to gain access to her apartment, making her his fifth known victim.

Due to the MTPF failing to alert individuals of these attacks, Ms. Doe was not able to take any precautions to protect herself from the offender entering her dwelling. Police neglected to give warning as they believed women would become hysterical and jeopardize the investigation. The MTPF was also under the impression Callow would offend again but took no steps to protect women in the residing area, including Ms. Doe.

This led to the plaintiff further pressing a case of Charter rights violation. She claims her Section 7 rights to life, liberty, and security of person, as well as Section 15(1) rights to equality under the law and protection without discrimination had been breached.

The civil action was held in the Ontario Court General Division, awarding $220,000 in damages to Ms. Doe as well as acknowledging her Charter rights were violated. The MTPF could not supersede the Charter violation under Section 1 as police conduct is not a legislative enactment or common law rule.

Police Negligence and it’s Greater Impact

During the investigation into the matters of the offences committed by Paul Douglas Callow, Constables Derry and Cameron were in charge to take charge of the lead. In failing to protect the public, particularly women, from this offender, the defendants claimed they were worried it would give alarm to the assailant and cause them to flee. This claim, however, was unsubstantiated as they believed this set of serial rapist crimes were not as serious as previous cases.

It is the common belief among the public that the duty of police is the protect individual from crime and to prevent criminal acts from taking place. In this particular case as it relates to victims of rape, have the expectation when they report to the police, authorities will take proper action to process their case and alert the public on needed information. Then the populace will be able to better protect themselves from incidents occurring before the offender is apprehended. (Moran, 1993) The ruling in Jane Doe suggests there is a common law duty for police to use affirmative action to forewarn the public and vulnerable groups. This case has shown the neglection of informing the people of offenses in the community places certain individuals in situations to be used as bait to catch the culprit.

This does not only relate to this particular case but can be applied to several prominent cases across Canada. Police negligence can be performed through break down of coordination between departments, jurisdictions, and a lack of focus on at-risk demographics.

Robert Pickton’s Killing of Sex Trade Workers and Indigenous Women

Through the 1990’s in the Greater Vancouver Region, serial killer Robert Pickton would prey upon sex trade workers and Indigneous women who resided in the Downtown Eastside. Women who would go missing never returned are were viciously tortured and murdered by Pickton. Between June of 1983 and January 23, 1997, fifteen women with links to the Downtown Eastside (DTES) had been reported missing to the Vancouver Police Department (VPD) and Royal Canadian Mounted Police (RCMP). The VPD had failed acknowledge many requests from the public there were large amounts of women going missing from the area.

Cst. Dickson, a community liaison for the DTES researched a list of 71 unsolved missing persons cases and claimed he was able to account for all but three. However, the accuracy of this information has been cast into doubt. VPD senior management further used this as an indicator that there must not be a missing person problem and the idea should be dismissed. (Oppal, Q.C., 2012) Had the VPD been more proficient in their management of missing person files and listened to individuals claiming women had been going missing over the span of the decade, less lives may have been at risk.

While the Robert Pickton case can be considered an extreme comparison when placed against Jane Doe, both serve the same purpose: police as an authoritative figure has the responsibility to alert the public of serial crimes taking place in their community. If this communication fails, persons targeted by the culprit will remain vulnerable until sufficient action is taken.

The Argument for Charter Right Abuses

Ms. Doe alleged her Charter rights had been infringed on two factors: under s 7 guaranteeing the right life, liberty, and security of person, and under s 15(1) ensuring equal protection under the law without discrimination. Ms. Doe believed if she were inform by Constables Derry and Cameron of the events taking place, she would have been able to take the proper precautions to protect herself from danger. However, MTPF neglected to inform the public of any dangerous actions in the community regarding serial rape.

If an individual were not to be aware of any circumstances or the peril which may occur to them while necessary steps could be taken by authorities to clearly prevent it, this fully violates the rights of life and security of person. The Police Act further cements this violation of the Charter. Section 57 states, “members of police forces…are charged with the duty of preserving the peace, preventing robberies and other crimes.” (Police Act, RSO 1980, c. 381, s 57.)

The plaintiff’s argument for s 15(1) violation was the failure to inform her of sexual attacks in her community due to being a woman. This in practice would be considered to be discriminatory. She further claimed sexist stereotypes of the officers handling the case further led herself and other women to be at outstanding risk. In the conclusion, it is acknowledged by the justice the MTPF was aware of issues within their department in handling sexual assault cases. Three glaring problems which arose from a 1975 report includes: lack of co-ordination of sexual assault investigations, some officers not being suited to handle these cases, and the lack of experienced investigators/supervision on sexual assault files. The justice found that officers were more inclined toward believing rape myths than following the facts at hand. The sexist stereotypes of rape myths as well as the failures in serious handling of sexual assault cases led to the MTPF to discriminate against Ms. Doe solely based on her gender. This denied her the equal right to protection under the law regardless of sex and fully violated her Charter section 15(1) rights.

2020: A Continued Lack of Progress on Sexual Assault Cases

Thirty-four years after Ms. Doe was raped in her home, progress on sexual assault cases continue to progress at a slow pace. Rallies such as the #MeToo movement have helped pushed forward legitimacy for victims of sexual assault, but many rape myths continue to persist in Canadian society.

A 2017 statistical study from the Government of Canada presented the alarming attrition of sexual assault cases in the criminal justice system. Out of 100 cases reported to police, 87 will be made by women. Only 43 of these cases will result in charges being laid against an individual. The numbers dwindle further as on 21 cases will be presented in court. Twelve of these cases will result in a criminal conviction, of those only seven will serve a custodial sentence. (Rotenberg, 2017) When compared to physical assault, these cases will go to court 75 percent of the time, meanwhile only one-in-five sexual assault cases go to court. This shows that the criminal justice system still has many failings in its treatment toward victims of rape and sexual assault.

The ruling set in Jane Doe can still provide hope for victims as it sets precedent in the standard police must be held to in protecting the public from danger, regardless of sex.

Conclusion

The case of Jane Doe has presented the constant need for accountability and oversight on police in our communities to ensure the public is properly protected from danger. The ruling by the Ontario Court General Division made it apparent, authorities do not get to select who they want to protect, but must safeguard the public from offenders as a whole. Discriminatory actions should also not be present in decisions must by police when conducting investigations which could cause vulnerable individuals to be at risk. While the criminal justice system continues to struggle with properly addressing victims of rape and sexual assault, legislative and administrative changes can guide police into a different direction. This includes better educating officers on the facts of sexual assault in training programs and addressing shortfalls in departments as stated in the 1975 MTPF report. A case such as Jane Doe can serve as a cornerstone precedent for how authorities must act in these cases moving forward in co-ordinated efforts legitimize victims and isolate further assaults from occurring.

APA References

Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 1998 ONCJ.GD 2681, 39 OR 487 (Ontario Court of Justice General Division July 3, 1998) (CanLii, Dist. file).

Moran, M. (1993). Jane Doe v Board of Commissioners of Police for the Municipality of Metropolitan Toronto [Abstract]. Case Comments, 6, 497–497.

Oppal, W. T., QC. (2012). Nobodies: How and Why We Failed the Missing and Murdered Women. FORSAKEN: The Report of the Missing Women Commission of Inquiry, IIA, 142–151.

Police Act, RSO § 381–57 (1980).

Rotenberg, C. (2017, October 26). From arrest to conviction: Court outcomes of police-reported sexual assaults in Canada, 2009 to 2014. Retrieved November 11, 2020, from https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/54870-eng.htm