private law, the state and the duty to protect: tort actions for police failures in gendered...

Private Law, the State and the Duty

to Protect: Tort Actions for Police

Failures in Gendered

Violence Cases

Melanie Randall*

I. INTRODUCTION

Remedying injustice and inequality in society almost always relies,

often to a very great extent, on the role of the state. As an expression of

state power, law potentially plays a fundamentally important role not

only in remedying particular instances of wrongful conduct, but in

exposing and contesting the larger social inequalities which are

expressed in the wrongful conduct. In this paper I address the

possibilities for using private law to redress wrongs in which the state

itself is implicated, involving the negligence of public authorities.

Focusing specifically on police failures to protect in relation to gendered

violence, the complex issues thrown up by the legal actions I examine

allow for broader reflections on the possibilities for law’s engagement

with problems of social justice, and in particular, the possibilities for

demanding state accountability for remedying these problems.

In this paper I comparatively analyze recent Canadian case law

which suggests a move towards a slowly expanding conception of the

existence of a private law duty owed by the state, and specifically, the

police, to women known to be at particular risk, or, at “special

distinctive risk” of violence. Both the decisions in Jane Doe v.

Metropolitan Toronto (Municipality) Commissioners of Police1

and in

M. (B.) v. British Columbia (Attorney General)2

exemplify this modest

*

Professor, Faculty of Law, University of Western Ontario.

1 [1998] O.J. No. 2681, 39 O.R. (3d) 487, 160 D.L.R. (4th) 697 (Ont. Gen. Div.)

[hereinafter “Jane Doe”].

2 [2004] B.C.J. No. 1506, [2004] 10 W.W.R. 286 (B.C.C.A.), leave to appeal refused,

[2004] S.C.C.A. No. 428 (S.C.C.) [hereinafter “M. (B.)”].

344 SUPREME COURT LAW REVIEW (2009), 44 S.C.L.R. (2d)

and incremental expansion of a recognition of a duty owed by the police

to women harmed by violence perpetrated by third parties.

In discussing these two key cases in which negligence actions have

been brought forward for police failure to protect (or failure to protect

through warning), I assess the nature of the judicial reasoning

undertaken in the judgments, and address the public-private fault line

which is expressly engaged in these decisions. More broadly, I explore

what these cases tell us about the possibilities and perils of using tort and

constitutional law to impose state accountability for so-called “private”

violence against women.

Private law actions to impose accountability on public authorities

have been notoriously difficult in tort law, given the common law’s

general tendency towards insulating the state from liability. While this

trend is escalating in some jurisdictions such as the United States,3

in

others, there has been a move away from treating the state as a specially

protected defendant requiring or deserving greater immunity from tort

actions. In Canada we have seen an uneven trend with regard to

protecting public authorities from liability in tort, and, in particular in

negligence. While the commitment to shielding policy decisions from

attracting liability remains firmly intact, the negligent operation or

implementation of policy decisions has been, in the main, subject to the

regular rules of private law liability.

In terms of the possibilities for suing the police in negligence,

several important cases from the Supreme Court of Canada, including

Odhavji Estate v. Woodhouse4

and Hill v. Hamilton-Wentworth Regional

Police Services Board,5

confirm that negligence actions against the

police are possible and that the police are not specially immune to

potential liability for their negligent conduct. Moving from theory to

practice, from principle to actual liability, however, may prove more

difficult, as both Odhavji and Hill show.6

In terms of seeking state

3

Castle Rock v. Gonzales, 545 U.S. 748 (2005).

4

[2003] S.C.J. No. 74, [2003] 3 S.C.R. 263 (S.C.C.) [hereinafter “Odhavji”].

5

[2007] S.C.J. No. 41, [2007] 3 S.C.R. 129 (S.C.C.) [hereinafter “Hill”].

6

In neither of these cases, important as they actually are for establishing and articulating

legal principles re: police liability in tort, was liability actually imposed on the police. In Odhavji,

supra, note 4, the actions in misfeasance in a public office against the police officers and the Chief

of police, and the action in negligence against the Chief were allowed to proceed (and the motion to

strike out the claims was denied).

In Hill, supra, note 5, the majority ruled that the police are not immune from liability under the

law of negligence, and confirmed that the tort of negligent investigation exists in Canada. The case

is also significant for the finding that police officers owe a duty of care to suspects, and that the

officers must adhere to a standard of care of the reasonable officer in like circumstances. On the

(2009), 44 S.C.L.R. (2d) TORT ACTIONS FOR POLICE FAILURES 345

accountability for gendered violence, what is necessary is a legal

recognition that, “[w]hen the state fails to take affirmative steps to

protect ... women from ... violence, it is complicit in creating the harm”.7

And this is still a large conceptual leap for most judges, especially those

who do not see imposing state responsibility as something tort law can

accomplish, and those who do not view tort law as related to wider

social justice concerns.

II. STATE ACCOUNTABILITY FOR ENDING VIOLENCE

AGAINST WOMEN AND GENDER INEQUALITY

The idea of state accountability for violence necessarily engages

negative and positive dimensions of responsibility, in the same way that

negative and positive aspects inhere in the concept of “rights”. This

quality of duality is entrenched in the language of the equality rights

protection guaranteed in section 15 of the Canadian Charter of Rights

and Freedoms,8

a duality which has been expressly recognized by the

Supreme Court. But its negative aspects — the focus on the bundle of

negative liberties and on remedying denial of rights and benefits — have

been overwhelmingly emphasized in the constitutional equality rights

jurisprudence, while the positive aspects — attention to the imposition of

affirmative duties — have only barely been acknowledged or explored.

One way of thinking about state accountability for achieving

equality in relation to violence against women is in relation to the

positive duties states owe to proactively address this social problem. The

idea of state accountability, then, necessarily has a dual quality. That is,

state accountability lies in the duty to protect women from violence

through, for example, the provision of adequate legal responses such as

an effective policing and criminal justice system, and also through the

provision of adequate (preventive and proactive) social services and

supports more broadly. But it also lies in a duty to take proactive

facts of the case, however, the Supreme Court surprisingly found that the (distorted) racial

composition of the police line-up did not fall below the standard of care and that the claim for

negligence was not made out.

7

G. Kristian Miccio, “With All Due Deliberate Care: Using International Law and the

Federal Violence Against Women Act to Locate the Contours of State Responsibility for Violence

Against Mothers in the Age of DeShaney” (1998) 29 Colum. H.R.L. Rev. 641, at 645 [hereinafter

“Deliberate Care”].

8

Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.),

1982, c. 11 [hereinafter “Charter”].


measures to prevent violence. And failures and breaches of this duty

should attract liability.

In Jane Doe, this proactive measure required that the police warn the

small group of identified women known to be at risk, of their

vulnerability to attack by a serial rapist whose patterns had become clear

to the police. In M. (B.) it meant that police had to take seriously a

woman’s request for assistance, and investigate and take action in

relation to her estranged partner’s breach of the Criminal Code9 peace

bond by which he was, in theory at least, bound.

International law and covenants lend support to the idea that states

unambiguously have international human rights obligations to “take

effective action” in response to violence against women.10

The due

diligence standard — which requires that states fulfil a legal duty to

undertake positive action to prevent and protect women from violence,

to punish perpetrators of violent acts and compensate victims of violence

— is a powerful and even potentially transformative tool in the broader

struggle to achieve the eradication of gendered violence. These

international sources of authority appear to exist in utter disconnection

from tort law, but there is no reason that they cannot be creatively

engaged in future efforts to utilize the power of private law remedies in

relation to gendered crimes of violence (as well as in other potential tort

cases).

In domestic law contexts, the nascent recognition of positive duties

owed by the state is most typically seen in constitutional terms, as, for

example, potentially imposed by or flowing from constitutional

guarantees to equality as guaranteed by section 15 of the Charter. But

these duties might also arguably be found to originate in and flow from

the common law. For example, it is a well recognized tort principle that

one who undertakes to provide services to another is bound by an

affirmative duty to do so with reasonable care. Hence a negligence

analysis can creatively engage this principle in relation to dimensions of

state accountability and seek to impose responsibility on the government

for its failures, for example, to deliver on the promise of adequate police

protection. Negligence actions, then, especially when framed in relation

to and informed by constitutional values and human rights norms, yield

further options, even if ultimately limited ones, for advancing the legal

9

R.S.C. 1985, c. C-46.

10

United Nations High Commissioner for Human Rights, Resolution 1994/45, “Question

of Integrating the Rights of Women into the Human Rights Mechanisms of the United Nations and

the Elimination of Violence against Women”, E/CN.4/1994/132 (March 4, 1994).


possibilities for equality rights and an anti-discrimination analysis to

impose state accountability for violence against women.11

III. POLICE LIABILITY FOR FAILURE TO WARN: JANE DOE V.

METROPOLITAN TORONTO (MUNICIPALITY)

COMMISSIONERS OF POLICE

Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of

Police12

is an example of a successful private law action which integrates

a negligence claim, with constitutional claims engaging section 15 and

section 7 Charter rights. In this case a woman successfully sued the

police for their failure to warn her that she was at specific risk of attack

by a serial rapist. Of particular significance is that a sex discrimination

argument was not only central to the private law legal analysis advanced

by plaintiff’s counsel and accepted by the Court, but that this

acknowledgment of sex discrimination actually underpinned both the

negligence analysis and the constitutional claims.13

The case is significant in terms of tort law because the police were

found to owe and to have breached a private law duty of care to the

victim they knew to be at particular risk of attack from a serial rapist.

Given that it stands as a powerful example of private law accountability

for a state failure, it is disappointing that the decision is of weak

precedential value because the litigation was not appealed beyond the

trial of first instance.

Nevertheless, the case generated much public and media attention as

it was situated within a larger, historical effort to ensure appropriate

police response to the problem of sexual assault and its victims.

Following the successful litigation and the amount of press and

community attention it received, Toronto City Council requested a series

of follow-up audits of the Toronto Police Service’s investigation of

11

See Seneca College of Applied Arts and Technology v. Bhadauria, [1981] S.C.J. No. 76,

[1981] 2 S.C.R. 181 (S.C.C.) [hereinafter “Bhadauria”]. While Bhadauria appears to foreclose the

possibility of a common law action for discrimination there is evidence that some lower courts are

open to reconsideration, especially in relation to common law claims engaging issues of sexual

harassment. In the U.S. there has been judicial recognition of domestic violence as a distinct tort;

when infused with a gender and discrimination analysis, this opens up another possibility for legal

exploration and intervention to be pursued in the Canadian context.

12 Supra, note 1, leave to appeal refused, [1991] O.J. No. 3673 (Ont. C.A.).

13 See 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 L.J., at 451-95 for a more extended analysis of the

case and its significance.


sexual assaults, indicating a political will to keep the issue of police

accountability alive, and also indicating the interplay between legal

actions and broader community and political contexts.14

The legal action

arose out of community mobilizing by a small, ad hoc feminist coalition

named WAVAW (Women Against Violence Against Women) and

would not have been possible without the support of feminist

organizations such as LEAF and a variety of social justice lawyers. It is

also a success story not only in terms of an individual plaintiff’s

vindication and victory, but also in terms of exemplifying a legal action

emerging from grassroots activism, and one which was profoundly

shaped by feminist social and legal analysis, as is evident in the ultimate

legal decision.

1. Facts and Legal Issues

Jane Doe was the fifth woman raped by the so-called “balcony

rapist”, a serial sexual offender. The serial rapes took place within an

eight-month period and within a narrow geographical area, the Church-

Wellesley neighbourhood of Toronto.15

Each of the assaulted women

awoke in the middle of the night to find an armed intruder in her

apartment, and each was raped at knifepoint.

The private law claims in Jane Doe asked whether the police were

liable for the tort of negligence for failing to warn the plaintiff about the

known threat of a serial rapist. More specifically, at issue was whether or

not they owed the plaintiff a duty of care to issue such a warning (which

would have essentially protected the women, or greatly enhanced the

possibility of protecting them from a predictable attack). The

constitutional questions in the case asked whether or not the police were

liable for a breach of the plaintiff’s section 15 Charter rights to equality

because the investigation was characterized by systemic sex

discrimination, and whether they were also liable for a breach of the

plaintiff’s section 7 Charter rights by violating her security of the person

when she was subjected to the risk of violence perpetrated by a third

party. All the legal questions were answered in the affirmative, and in

favour of the plaintiff, who was awarded $220,364.32 in damages.

14 See City of Toronto website documenting these audits, for example, online at:

<http://www.toronto.ca/audit/2004/followupreview_1999_investigation_sexual_assaults_tps.pdf>.

15 The first reported attack took place on December 31, 1985 and Jane Doe was raped on

August 24, 1986.


2. Finding a Private Law Duty and Constitutional Obligation:

The Importance of Social Context Evidence in Relation to the

Legal Claims

By the time the plaintiff Jane Doe was attacked at knifepoint, the

police had gathered an extensive amount of information about the

pattern of the sexual assaults, including knowledge about the specific

class of women most at risk of attack: white women with dark hair,

living alone in apartment buildings with second- or third-floor balcony

access and within a narrow geographic area of only a very few city

blocks.16

In fact, the police had already canvassed the very

neighbourhood in which the Church-Wellesley rapes were perpetrated

and in particular they targeted female occupants of buildings where they

suspected the next attack might occur and generated a list of potential

next victims.

At trial, police documents revealed explicit instructions to those

doing the canvass “not to mention anything about sexual assaults which

have occurred in the area but to advise people contacted that this is a

crime prevention program and that single women are victims of break

and enters and theft”.17

Officers were instructed to get the names and

addresses of single women and to note their hair colour, as they

compiled their list of potential next victims.18

In other words, the crux of

the police failure was their conscious and paternalistic decision to

withhold the crucial information about the serial rapist and the nature of

the risk of attack, from the very women who were most likely to be

attacked.

In the police’s own words, another rape was “a certainty”, and in

relation to that “certainty”, they had detailed information about those

they knew to be at particular risk. For these reasons, although a novel

claim, the foreseeability and proximity components of the duty of care

negligence analysis were easily satisfied.19

Justice MacFarland found

16 In an interesting and strangely similar parallel, three women, all soldiers on an Israeli

military base, were sexually attacked by a serial rapist, yet military authorities decided not to “make

the news public for fear it might compromise the investigation and cause panic among women

soldiers serving at the base”. Critics of this failure to warn, however, claim that “the more recent

attacks might have been prevented if the army had issued a warning earlier”. See “Police keep quiet

as rapist stalks Israeli army base”, The Globe and Mail (September 22, 2000), at A16.

17 Jane Doe, supra, note 1, at 512 O.R. (citing orders given to Staff Sergeants) [emphasis

added].

18 Id.

19 In order for a specific duty to have arisen in the circumstances of the Jane Doe litigation,

the foreseeability of the harm must have been established, along with a relationship of sufficient


that foreseeability of the harm — the sexual assault — was established

because the police’s own evidence at trial revealed their clear knowledge

of the connection between the four rapes which preceded the attack on

Jane Doe, as well as the likelihood that the rapist would continue to

attack women “until he was stopped”.20

Proximity was also established

because Jane Doe was a member of a very specific and identifiable class

of potential rape victims, and the police knew members of this class to

be at special risk.21

Essential to both the tort and Charter issues was the claim that police

response to the investigation of the balcony rapist was profoundly

shaped by rape myths and other discriminatory attitudes and practices

towards women in general, and the first few victims specifically. The

issues were systemic, in terms of not prioritizing the investigation and

under-resourcing it, as well as specific, in terms of the particular

mistreatment the women who reported being raped received at the hands

of individual police officers.

There was, for example, the sexually harassing comment made by

one of the police officers to a woman who had reported a rape (prior to

Jane Doe’s) on the very day she had been attacked. When the police

officer telephoned her at home later that day and she mentioned that she

had just been in the shower, the male officer responded that he “should

have been there” with her. For what purpose he thought he should have

been “there” in the shower with her, was left unsaid, but the intrusive

and sexualizing implications of the comment were blatant. That the

comment was made at all was a remarkable example of a lapse of

proximity, as required by the Supreme Court of Canada’s version of the Anns test. As Lord

Wilberforce explained in Anns v. Merton London Borough Council, [1978] A.C. 728, at 751-52

(H.L.), a trilogy of cases

Donoghue v. Stevenson, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., and Home

Office v. Dorset Yacht Co. Ltd. [has determined] that in order to establish that a duty of care

arises in a particular situation ... one has to ask whether, as between the alleged wrongdoer

and the person who has suffered damage there is a sufficient relationship of proximity or

neighbourhood such that, in the reasonable contemplation of the former, carelessness on his

part may be likely to cause damage to the latter, in which case a prima facie duty of care

arises.

The Anns test has been affirmed by the Supreme Court of Canada in Just v. British Columbia,

[1989] S.C.J. No. 121, [1989] 2 S.C.R. 1228 (S.C.C.), Hercules Management Ltd. v. Ernst & Young,

[1997] S.C.J. No. 51, [1997] 2 S.C.R. 165 (S.C.C.) and more recently, though in somewhat modified

or clarified forms, in Cooper v. Hobart, [2001] S.C.J. No. 76, [2001] 3 S.C.R. 537 (S.C.C.);

Odhavji, supra, note 4, and Childs v. Desormeaux, [2006] S.C.J. No. 18, [2006] 1 S.C.R. 643

(S.C.C.).

20 Jane Doe, supra, note 1, at 524 O.R.

21 The police “knew the rapist was attacking single white women [with dark hair] living

alone in second- and third-floor apartments with balconies in the Church/Wellesley area of the City

of Toronto”: id.


professionalism and a display of sexism and sexual intrusiveness, but

that it was said to a woman still in shock from having recently been

raped by a stranger with a weapon, was more appalling still.

With regards to one of the reports of rape, a police officer noted that

a bowl of potato chips on the bed from television viewing the night

before had not been disturbed, so his assumption was that no rape was

possible, revealing his amazingly misinformed assumptions about sexual

violence. These smaller details about the investigation reveal much

broader patterns of institutional problems, including some profound

misapprehensions about the crime of sexual assault.

In terms of the broader patterns of police neglect in their

investigation, the first two victims’ reports of rape were discounted and

not investigated because the officers (who had, ironically, just received

specialized training on sexual assault issues) found one woman to be

insufficiently hysterical to be a “real” victim, because he found her to be

“too calm and relaxed” in describing what happened. The other woman’s

rape report was not believed and the investigating officers decided that it

must have been her “boyfriend” with whom she had sex, and in

confusion she must have mistakenly believed that an unknown man had

broken into her apartment and had raped her. More disturbing still was

the police’s own documented plan to press public mischief charges

against one of the women raped by the “balcony rapist”, for making a

false report, because they simply refused to believe her. The police’s

refusal to believe the first two women who made rape reports essentially

meant that they did not investigate.

Beyond the appalling treatment the traumatized rape victims

received at the hands of the police, the evidence showed that once it

dawned on them that there was a serial rapist, the police decision not to

warn was driven by the belief that women in the general public would be

“hysterical” if they learned about the serial rapes. Furthermore, the

evidence demonstrated a profound misunderstanding and minimization

of the nature and harm of the crime of sexual assault on the part of the

police force, despite their public rhetoric about rape being the second

most serious crime following homicide.

The Court found that at the point that the police had finally made the

connections between the women’s rape reports and knew that they had a

serial rapist on the loose, their explicit decision not to warn the women

known to be at risk and instead their plan to mount elaborate “stake-

outs” so that they could “catch” the rapist in the “act”, amounted to

using the women as “bait”. In other words, their strategy involved the


police prioritizing the apprehension of a criminal over securing the

safety of those women known to be most at risk of being harmed by him.

Because in investigating a similar set of serial rapes in Toronto the

police had issued a warning, MacFarlane J. found that there was no

“policy” not to warn, a policy which might have precluded tort liability.

Instead, “because [a warning] had been [given] in the Dawson Davidson

case — just months earlier and in the very same division” the judge was

able to avoid the barrier of policy decisions undertaken by public

authorities.22

Not only did the police refuse at several points over the 11 years of

litigation to settle the case for a vastly smaller amount of compensation

than they were ultimately ordered to pay at trial (not to mention the

millions in legal costs), but they repeatedly attempted to have the case

dismissed as revealing no “cause of action”. Furthermore, in the face of

overwhelming and undeniable evidence to the contrary, throughout the

trial they defended their negligent and under-resourced investigation as

one which was “excellent”. If this is what the police could

retrospectively describe as “excellent” policing, then the systemic

problems relating to institutional sexism appear to remain firmly intact.

3. The Significance of the Jane Doe Decision

The Jane Doe23

decision necessarily raises broader legal and policy

implications surrounding imposition of civil liability on police as a

mechanism for oversight of this public institution. Should the civil courts

be retrospectively reviewing police criminal investigations with a view

to whether or not they were conducted negligently? Of course they

should.24

And the Supreme Court of Canada has clearly acknowledged

this in the recent decision of Hill v. Hamilton-Wentworth Regional

Police Services Board.25

In Hill, McLachlin C.J.C., writing for the

majority, stipulated:

22

Id., at 510 O.R.

23

Id.

24

For a very useful discussion of tort law as a mechanism for police oversight, see Erika

Chamberlain, “Negligent Investigation: Tort Law as Police Ombudsman” in Andrew Robertson &

Hang Wu, The Goals of Private Law (Oxford: Hart Publishing, 2009) (forthcoming).

25 Supra, note 5. Although the Court declined to find liability on the facts, in spite of what

appears to have been an extremely negligent investigation, the Supreme Court clearly indicates that

there exists tortious liability for negligent police investigation in Canada and, further, that the police

are not immune from liability under the Canadian law of negligence.


police are not immune from liability under the Canadian law of

negligence ... [and] their conduct during the course of an investigation

should be measured against the standard of how a reasonable officer in

like circumstances would have acted.26

The Jane Doe case is one which demonstrates the potential for an

action in private law to be explicitly animated by larger public policy

concerns. As such, the case demonstrates the utility of providing a

private law remedy for a harm (the failure to protect) which, though

perpetrated by an individual defendant — albeit an institutional one — is

actually symptomatic of a wider and socially produced harm originating

out of the structures of sexual inequality.

In fact, the plasticity of the public/private distinction becomes clear

in this case because much of the evidence grounds both the private law

and public law claims. This distinction is also engaged because the kind

of contextual analysis both required and undertaken by the Court,

examining the problem of rape and the history of police responses,

engages larger issues which have both public and private dimensions. By

straddling the public/private law divide and demonstrating the fluidity of

this dichotomy, the Jane Doe case suggests that it can sometimes be

difficult to draw a bright line dividing public and private law.

The decision in Jane Doe stands as a legal judgment which moves

the law of negligence forward by recognizing a somewhat novel claim.

By confirming the existence of a private law duty owed by police to

members of the public known to be at specific risk, the case integrates a

social context analysis into negligence principles. Its integration of the

sex discrimination and Charter analysis into the heart of the negligence

analysis is, in fact, one of the decision’s most striking and important

features.

26 Id., at para. 3. The decision in Hill applies to the private law duty owed by police to

suspects of criminal investigations, and the Court expressly states that for other relationships, for

example between police and victims of crime, a fresh duty analysis will need to be undertaken.

Nevertheless, the larger point here is that the Supreme Court of Canada has indicated that the police

are not immune from liability in negligence and that policy reasons do not negate such liability, but

support it (id., at para. 47).


IV. M. (B.) V. BRITISH COLUMBIA (ATTORNEY GENERAL):

DUTIES, DOMESTIC VIOLENCE AND THE POLICE

In a recent case, M. (B.) v. British Columbia (Attorney General),27

which the Supreme Court disappointingly refused to hear, the British

Columbia Court of Appeal denied a woman’s claim against the police, in

negligence, for their failure to investigate a complaint of domestic

violence. The case is important, however, because both at trial, and at the

appellate level, each and every judge found on the facts, that the police

owed the plaintiffs a common law duty of care. Had the case been

dismissed on the grounds that no private law duty of care was owed, this

would have been a significant setback in Canadian tort law. It would

have restricted the possibilities of expecting negligent public authorities

to be held legally accountable for the harms they cause or contribute to,

in relation to those members of the public they are empowered to serve

and protect (a particularly salient mandate when the defendant is the

police), and who are known to be at a specific risk of injury. While the

case is certainly no major legal victory or milestone, the recognition of a

private law duty on the facts, is a significant development.

Because a private law duty of care was found in an appellate level

judgment to be owed by the police, the case advances and builds upon

the finding from a lower court in Jane Doe about police duties in relation

to violence against women. But on the facts of M. (B.), both the trial

level judge and the majority at the Court of Appeal found that the

liability was negated by the lack of a sufficient causal connection

between the breach of the duty and the violence which the plaintiffs

ultimately suffered. While the duty analysis in M. (B.) is a positive

development in the law of tort in Canada, the actual result of the case is

disappointing, and is based both on shaky reasoning and a failure to

apprehend the nature and dynamics of domestic violence.

1. The Facts of M. (B.) and the Foreseeable Risk of Harm (Which

Should Have Been Known by the RCMP)

B.M. had separated from R.K., her estranged common law husband,

at the time of the violent events which formed the subject of the civil

action. R.K. had been violent to B.M. on a number of occasions prior to

their separation, including one conviction for a serious assault with a

27

Supra, note 2.


weapon. On that occasion, and in relation to the only violent incident

B.M. had reported to the police, she tried, as so many assaulted women

do under pressure from violent male intimates, to have the charges

against R.K. dropped. She also refused to testify at the criminal trial.

Nevertheless, R.K. received a brief jail sentence (21 days) and a year’s

probation.

After their separation and because they had property matters to

resolve, B.M. agreed to meet R.K. at a park where she felt it was safe to

see him because it was “an open public place”.28

When R.K. became

agitated during their discussion, B.M. got back into her vehicle and tried

to leave, but R.K. tried to block her departure. She ultimately had to

drive around R.K.’s truck which he manoeuvred to try to prevent her

exit. He sped after her in chase, but B.M. was able to elude him.

Knowing his history of extreme violence, not only to her but before

she met him, B.M. went to the police station to make a complaint about

R.K.’s behaviour, to register her fear, and to seek police protection from

him. However, the RCMP constable, who questioned her only briefly,

decided that there were insufficient grounds to recommend a complaint

under section 810 of the Criminal Code and declined to take any action

in relation to the threat she reported. Instead he recommended to B.M.

that she see a lawyer to get a restraining order and suggested she stay in

“public places”. This advice was offered in spite of the fact that the

constable had read B.M.’s statement, spoken with her directly and

reviewed a copy of R.K.’s lengthy criminal record. Ironically, we see

here a police officer, representing a public authority, telling a domestic

violence victim that her best option was to seek a “private” remedy to

deal with the complaint she tried to have the public authority take

seriously.29

In B.M.’s case there was clear provincial domestic violence

legislation. Specifically, the Ministry of the Attorney General for British

Columbia had legislated policy, adopted by the RCMP, requiring an

assertive and timely police response to domestic violence, including the

mandatory enforcement of judicial protective orders. Decades of

feminist intervention, community advocacy and law reform have sought

28 Id., at para. 27.

29

See Elizabeth Sheehy, “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” (2006) 17 C.J.W.L. 97-126, for an extended discussion of the case and for

additional background information about “what happened” [hereinafter “‘Causation, Common

Sense’”].


to have the “private” issue of domestic violence translated into one of

public responsibility and yet in this instance, a police representative

blithely ignored both the physical presence of and request for help from

a fearful woman known to have been violently assaulted (“proven”

beyond a reasonable doubt) in the face of the crystal clear directive of

the provincial policy requiring prompt and effective police response.

A number of weeks later, R.K. arrived at B.M.’s property with a

shotgun, smashed open her door, entered the house, shot and killed

B.M.’s friend Hazel White, shot B.M.’s 12-year-old daughter in the

shoulder, causing her injury and disability, and terrifying B.M. and her

younger daughter. B.M. and her daughters managed to flee. R.K. then set

fire to the house and killed himself.

In failing to take any action in relation to B.M.’s police complaint a

number of weeks before the assault and murder, the police failed to

grasp the dynamics of domestic violence and the particular risk faced by

women who have recently separated from violent men. This is a period

of time which is well documented and thoroughly researched in the

domestic violence literature, demonstrating typical patterns of escalating

domestic violence — including threats of suicide — and the fact that

separation is the period of highest risk for further assault and/or for

spousal homicide or intimate homicide.30

But even more directly pertinent than this general knowledge about

the high-risk period, the police knew that R.K. had an extensive history

of criminal violence directed not only at B.M. but at others. This

violence included convictions for manslaughter for a previous murder

(of a girlfriend’s boyfriend), several counts of sexual assault, forcible

confinement, assault causing bodily harm, theft, and breaking and

entering.31

In fact, the trial judge described the assault B.M. reported to

police and for which he was convicted, as “brutal”.32

Clearly, then, the

police should have been well aware of the foreseeable risk of harm to

30

See, e.g., Daniel G. Saunders & Angela Browne, “Intimate Partner Homicide” in Robert

T. Ammerman & Michael Hersen, eds., Case Studies in Family Violence, 2d ed. (New York: Kluer

Academic Publishing, 2000); Jacquelyn C. Campbell et al., “Risk Factors for Femicide in Abusive

Relationships: Results from a Multisite Case Control Study” (2003) 9(7) Am. J. of Public Health

1089; Tina Hotton, “Spousal Violence After Marital Separation” (2001) 21(7) Juristat, Statistics

Canada, Cat. No 85-002-XIE, online at: <http://www.statcan.ca/english/IPS/Data/85-002-

XPE2001007.htm>; <http://www.statcan.ca/english/preview/85-002-XIE/P0070185-002-XIE.pdf>;

Martha Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation” (1991)

90 Mich. L. Rev. 1; M. Wilson & M. Daly, “Spousal Homicide Risk and Estrangement” (1993) 8(1)

Violence and Victims 3.

31

Supra, note 2, at para. 16.

32

Id., at para. 109.


B.M. (and others), that R.K. posed. Yet this risk was disregarded and she

was left to fend for herself.

2. The Duty of Care Analysis in M. (B.)

In light of the larger failures of judicial reasoning in the trial judge

and Court of Appeal’s majority decision, the only positive development

from the case is the recognition of the duty of care owed by the police

and some of the powerful arguments advanced in the Court of Appeal’s

dissenting judgment explicating why the duty was owed.

Justice Donald, writing in dissent at the Court of Appeal, devotes the

most sustained attention to the question of duty, and strongly asserts that

the state has a duty to protect victims of domestic violence, a duty

entrenched in policy. In his words, in analyzing the cause of action:

Reference must be made to the policies laid down by the Ministry of

the Attorney General and adopted by the RCMP in relation to domestic

violence. They relate not only to the special proximity between police

and complainants but they also give content to the duty of care and set

the standard of care. The general duty of the police is to protect, but in

the area of domestic violence the degree of protection is heightened by

government policy. The discretion whether to act on a complaint is

very limited.33

Justice Donald distinguished the facts of M. (B.) from Hill v. Chief

Constable of West Yorkshire, a leading U.K. judgment in which a duty of

care was not found to be owed by the police because the class of

plaintiffs was too wide, and those at risk of harm from the offender were

not, beyond all being female, a distinct and identifiable group. In Donald

J.A.’s words:

The facts in the instant case are quite different from Hill ... B.M.

sought police assistance and had a direct engagement with an officer

when she presented her complaint. She had a pressing need for

protection as a potential victim of R.K.’s violence and the police

should have recognized that. She cannot be said to fall into a large

indeterminate class; to the contrary she was a person, in Lord Keith’s

words at 243 of Hill, supra, with a “special distinctive risk”.34

33

Id., at para. 50 (emphasis added).

34

Id., at para. 46, citing Hill v. Chief Constable of West Yorkshire, [1989] A.C. 53 (H.L.).


In this way, then, in Donald J.A.’s analysis the foreseeability and

proximity components of the duty analysis were clearly satisfied.

Furthermore, there were no policy reasons to strike out the duty. To the

contrary, government domestic violence policy directing proper police

conduct strenuously reinforced its very existence and, further, imported

specific content to the standard of care owed in relation to this duty.

In the majority decision Hall J.A. does not expressly undertake a

duty analysis because he finds that the case is “more appropriately

decided on a causation analysis”.35

However, a causation analysis

presupposes the existence of a duty owed; otherwise undertaking the

legal assessment of whether or not causation is met is gratuitous. This

offers implicit support for the grounding of a duty, and, in any event,

Hall J.A. does not at any point in the judgment strike out the finding of

the trial judge that a duty is owed. Justice Smith also decides the case on

causation, so the same points obtain in relation to his judgment.

Furthermore, he finds that the trial judge, who did find the existence of a

common law duty owed by the RCMP, “applied correct principles”, and

“made no error that would justify our intervention ... in his application of

legal principle[s]”.36

In sum, then, the trial judge had no difficulty

finding that a duty of care was owed by the police, the majority

judgment at the Court of Appeal did not dispute this legal finding and, in

dissent, Donald J.A. offered a sustained and persuasive analysis

underwriting why it must be found to exist.

3. Causation and the Misapprehension of the Dynamics of

Domestic Violence

The tort action failed at the British Columbia Court of Appeal on the

issue of causation. Two of the three appellate judges supported the trial

judge’s finding that the temporal remove between the time of the

RCMP’s failure to investigate B.M.’s complaint and the date of R.K.’s

homicidal shooting spree negated the finding of any factual causal

connection.

In dissent, however, Donald J.A. approached the question of

causation through a material contribution to the loss analysis, and found

that the police breach of their duty and failure to meet the standard of

care owed to B.M. added to the risk of the occurrence to a degree “above

35 Id., at para. 138.

36

Id., at para. 146.


de minimis”.37

Justice Donald argued that the action should not be

defeated because of an overly restrictive analysis of factual causation.

He explained that:

In the present matter, the general duty of care on the police to

provide protection was heightened by government policy addressing

the serious problem of domestic violence. The duty owed to potential

victims of spousal abuse would be virtually unenforceable if claimants

had to do more than show a material contribution of the risk because of

the difficulty of proof to which I have referred. To insist upon strict

proof would leave a right without a remedy.38

However, the “right” to police protection and the deprivation of a

legal remedy in the face of its absence did not deter the Justices who

formed the majority from denying the claim based on their approach to

causation. Recognizing that the traditional “but for” test of causation is

unworkable in some circumstances, either because of difficulties with

regard to proof (such as in medical cases or complex multi-causal

industrial diseases such as those resulting from asbestos exposure) Hall

J.A. reviewed alternative causation analyses but found that none were

applicable to the facts of B.M.’s case.

As Hall J.A. opined, the action in M. (B.) “involves a situation where

the third party R.K. intentionally acted, causing harm to the plaintiff and

her dependants”.39

Asserting that the trial judge’s causation analysis was

owed considerable deference because it was a “factual finding”,40

Hall

J.A. found that R.K.’s violent break-in, shooting and murder occurred at

a “considerable remove in time” from the report B.M. made to the police

approximately six weeks earlier. Justice Hall then continued to sever the

“what happened” on the date that R.K. killed B.M.’s friend, injured her

daughter and terrorized her family, as if it were an isolated and separate

event entirely disconnected from the well-documented pattern of

domestic violence R.K. had demonstrated. As Hall J.A. constructed it:

Notwithstanding the extant legal hazards and restraints that were

applicable to R.K., he embarked on a course of violent conduct. This

event seems to have been triggered by his anger over the proposed use

to be made of the property.41

37

Id., at para. 88.

38

Id.

39

Id., at para. 135.

40

Id., at para. 140.

41

Id., at para. 143.


In this way Hall J.A. (mis)represents R.K.’s violence not as part of a

continued campaign of harassment and intimidation typical of severe

domestic violence but instead as a series of discrete and autonomous

incidents, over which the police had no control. Simultaneously he

seems to suggest that the “legal restraints” already imposed on the

offender were useless, a suggestion conveniently in line with the judicial

failure to believe that the police could and should — as they were

directed to do by unambiguous government policy — have intervened to

investigate B.M.’s complaint, and escalate the legal constraints on the

offender to put him on notice that there were forceful interventions to

interrupt and contain his threatening behaviour. Justice Smith is even

more explicit in characterizing R.K.’s murderous rampage as a “discrete

traumatic event” and found that the police officer’s inaction “did not

materially contribute to the harm beyond de minimis”.42

Perhaps most troubling was the majority judicial finding that the

RCMP Constable’s failure to investigate B.M.’s complaint against R.K.

was unrelated to his “murderous rage”.43

This perceived disconnect

between the negligent police failure to take any action in the face of a

domestic violence victim’s report of threatening behaviour by a known,

very violent convicted offender, still legally bound by the terms of a

section 810 Criminal Code order to “keep the peace”, even when the

police were “emphatically” statutorily bound to provide an “assertive

and timely” response, speaks volumes about judicial failure to grasp the

problem of domestic violence.

Particularly absent in these judicial analyses was any awareness of

the escalated risk women face of further violence and/or of being killed

in the immediate and short-term post-separation period. Both Smith and

Hall JJ.A. described R.K.’s behaviour as erratic, unpredictable and out of

control. Had Hall and Smith JJ.A. realized that perpetrators of intimate

violence typically become easily enraged and prone to intensify their

campaigns of intimate terrorization of the spouses who “dared” to leave

them, they might not so easily have mischaracterized R.K.’s murderous

rage as some kind of bizarre event disconnected from the already

criminalized patterns of violence and control he had exhibited so often in

the past, both distant and recent. Instead of being unpredictable, the

tragic unfolding of events was rather textbook, and certainly predictable

as an outcome not unlikely to occur.

42

Id., at para. 190.

43

Id., at para. 143.


Only Donald J.A., in dissent, seemed more sensitized to the risk of

further violence R.K. posed. He commented that the “experienced trial

judge predicted further violence and gave B.M. an assurance that the

authorities would respond to any complaint if she was threatened

again”.44

Further he pointed out that, “by not dealing with R.K.’s

intimidation and threatening behaviour, the police failed to reduce the

risk of more violence”.45

At play in the case is the way in which dominant misperceptions

about violence against women, and victim and perpetrator behaviour

shaped not only the legal decision-making but also the police response.

When she arrived at the police station to make a report and seek police

enforcement of the section 810 Criminal Code order, the receptionist

who first encountered her described B.M. as upset and frightened and

noted that her hands “shook violently”.46

And yet, the police officer who

interviewed her moments later and who refused to take action in

response to B.M.’s complaint described her as “calm”. This is a

characterization he no doubt used to rationalize his inaction, but also one

which perhaps led him to dismiss and discount her reports about the

level of the threat the perpetrator posed. Clearly an assumption was

operating about how a “real” victim should react in order to convey the

level of threat and fear she experiences,47

revealing yet another

dangerous stereotype and the consequent radical minimization of the risk

of domestic violence.

4. Significance of M. (B.): Negligence, Accountability and Public

Policy

Surprisingly, B.M.’s cause of action appears to have been pleaded

strictly in private law terms, exclusively around a claim of negligence.

Yet the facts seem to call out for a legal analysis which centrally

foregrounds the constitutional issues also at stake, in particular the sex

discrimination and equality issues implicated in the issue of domestic

violence.48

These include not only the discrimination analysis of a

44

Id., at para. 25.

45

Id., at para. 75.

46

Id., at para. 28.

47

See M. Randall, “Domestic Violence and the Construction of ‘Ideal Victims’: Assaulted

Women’s ‘Image Problems’ in Law” (2004) 23 St. Louis Univ. Pub. L. Rev. 107.

48

See M. Randall, “Equality Rights and the Charter: Reconceptualizing State

Accountability for Ending Domestic Violence” in F. Faraday et al., eds., Making Equality Rights

Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law Inc., 2006) [hereinafter


section 15 claim, but also the breach of section 7 rights to security of the

person, all of which are implicated in state actors’ failure to act

effectively — in the face of an explicit set of policies mandating them to

do so — to protect assaulted women. However, even only in private law

terms, this case represents a failed opportunity to have common-law-

imposed state accountability for obvious police negligence, in the face of

a clear and unambiguous government policy removing police discretion

and directing them to investigate reports of domestic violence.

Although the outcome of M. (B.)49

is troubling, there is no reason to

suggest that future actions along these lines might not succeed. Given

that the duty analysis seems relatively uncontentious (though even that

cannot be guaranteed given that the Supreme Court of Canada declined

to review the case), the greatest hurdles appear to lie in mounting a

successful causation analysis. But this will perhaps be less onerous on

different facts, which might, for example, involve a more specific breach

of police duty, and with a more enlightened bench, both more attuned to

the complexities of domestic violence and more committed to a more

robust approach to issues of causation as well as to tort law’s ability to

be infused with social justice concerns.

Justice Donald, writing in dissent, noted that on the facts of M. (B.)

and in the face of “emphatic” government policy requiring “an assertive

and timely police response to domestic violence”, the “right to police

protection in these circumstances is so strong and the need for teeth in

the domestic violence policy so great that the causal linkage must be

found sufficient to ground liability”.50

As one commentator on the case

astutely pointed out, “declining leave to appeal in the Mooney case, the

Supreme Court of Canada passed over the opportunity to consider the

issue of causation in the context of third-party perpetrators and

professional protectors; but almost certainly — tragically — that

opportunity will come again.”51

‘“Equality Rights and the Charter’”], for a discussion of these legal issues with regard to the Charter

and domestic violence. See also “Causation, Common Sense”, supra, note 29, for an important

discussion of these issues. 49

Supra, note 2.

50 Id., at para. 12 (emphasis added).

51

Margaret Isabel Hall, “Duty, Causation and Third Party Perpetrators: The Bonnie

Mooney Case” (2005) 50 McGill L.J. 597, at 616 [hereinafter “Hall”].


V. THE LEGAL CONTOURS OF STATE ACCOUNTABILITY FOR

FAILURE TO PROTECT

52

Surprisingly, the common law has barely been used in Canada in

order to impose liability on the police for the many cases of domestic

violence and spousal homicide which involved police failures to enforce

restraining orders or otherwise effectively intervene in the face of a

known risk. But this does not mean that it will not or should not be in the

future.

The risk of spousal homicide is one element of the problem of

domestic violence. In Ontario, several high-profile Coroner’s inquests

have been called into the well-publicized deaths of Arlene May and

Gillian Hadley.53

Both of these women were killed at the hands of their

male partners, and in each case, their stories starkly demonstrate the

failure of state protection and concretize the kinds of system failures

which should be legally actionable and which should, in some cases,

attract liability. The juries in both inquests received submissions from a

broad range of parties, including many that were explicitly informed by

an equality rights and feminist perspective,54

and in each case extensive

lists of recommendations were advanced following the inquests.

In both cases, the murdered women had been subjected to ongoing

and escalating abuse perpetrated by their male intimates, and they had

repeatedly sought the intervention and protection of the police and the

criminal justice system, for example, by reporting the assaults against

them to the police and seeking protective orders. Despite seeking legal

help, each woman ended up dead.

When Randy Iles killed his estranged spouse, Arlene May, he had a

lengthy criminal history including convictions for indecent exposure,

harassing phone calls, probation breaches, possession of stolen property

and a weapons offence. At the time of the murder (and his suicide) there

was one warrant for his arrest in a neighbouring jurisdiction, and another

warrant for breaching his recognizance by contacting Arlene May in

52

Some of the material discussed in this section is also analyzed in “Equality Rights and

the Charter”, supra, note 48.

53 See: “Arlene May — Coroner’s Inquest: Jury’s Verdict and Recommendations”, online at

Ontario Women’s Justice Network: <http://www.owjn.org/archive/arlene3.htm>; and “Hadley Inquest

Jury Recommendations”, online at Ontario Women’s Justice Network: <http://www.owjn.org/issues/w-

abuse/hadley2.htm>.

54

See, e.g., the Recommendations by METRAC (Metro Action Committee on Violence

Against Women and Children) and OAITH (Ontario Association of Interval Transition Houses),

online at: <http://www.owjn.org/archive/arlene2.htm>.


defiance of a court order not to do so. A condition of his bail terms was

the surrender of his Firearms Acquisition Certificate, yet he was not

actually compelled to relinquish it by anyone associated with the

criminal justice system. As a result, while out on bail Iles was able to

purchase the gun with which he killed his spouse.

Gillian Hadley was murdered by her estranged husband in her own

house. Just moments before her death she had desperately handed her

baby over to a neighbour, who had vainly tried to intervene in the stand-

off. This dramatic aspect of the story received considerable media

attention. Less attention was paid, however, to the fact that at the time he

perpetrated this murder, her killer was facing charges for criminal

harassment and was also under court order to keep away from her.

While their experiences may seem extreme, what the tragic stories of

Arlene May and Gillian Hadley illustrate is the more typical pattern of

ongoing abuse and failed state interventions which characterize so many

cases of intimate femicide. Furthermore, in direct contradiction to

dominant myths about assaulted women’s passivity, helplessness and/or

complicity in the face of domestic violence, both of these deceased

women’s stories are filled with examples of their repeated and persistent

attempts to engage the criminal justice system and use all legal remedies

available to them to secure their own safety. The extensive and sweeping

set of recommendations issued from each of these inquests (many of

which were originally issued in the first report and then repeated in the

second) languish largely unimplemented.

The even more recently released 2006 report of the Ontario Death

Review Committee provides further documentation55

that many intimate

femicides are preventable with co-ordinated and skilled intervention.

Based on a review of actual case files of women murdered by their

intimates, these reports have identified common risk factors often

present, and which could have allowed properly trained domestic

violence professionals to have predicted and intervened to prevent a

domestic homicide, had an effective system-wide response been in place.

The stories of failure to protect and failure to intervene which can be

found in the Death Review reports, and in the lives and deaths of Arlene

May and Gillian Hadley, provide clear examples of the kinds of

55

“Fourth Annual Report of the Domestic Violence Death Review Committee, 2006”, Office of

the Chief Coroner, Province of Ontario, online at: <http://www.ontla.on.ca/library/repository/ser/

243013//2006.pdf>; “Fifth Annual Report of the Domestic Violence Death Review Committee, 2007”,

Office of the Chief Coroner, Province of Ontario, online at <http://www.ontla.on.ca/library/repository/ser/

243013//2007.pdf>.


tragedies which should give rise to justiciable claims, not only

constitutionally but at common law. It is not only spousal homicides

which might give rise to these claims, though these are often the starkest

examples. It is also the case that too often it is the most marginalized,

vulnerable and socially unvalued women — poor, racialized, those who

work in the sex trade — who suffer the greatest disregard from state

agencies like the police. The systemic state failure in general, and police

failure, in particular, to take seriously violence against Aboriginal

women, including the now well-documented cases of multiple

disappearances and murders of Aboriginal women, particularly in

Vancouver and Edmonton, for example, is a problem crying out for legal

consequences.

In Canada, research has documented the significantly higher rates of

intimate violence, including child sexual abuse, sexual assault and

domestic violence, experienced by Aboriginal women. Part of the

imbrications of racism, colonialism and sexism, are the stories of

murders and disappearances of Aboriginal women across Canada, which

have not been treated with any serious, sustained or adequate police

attention. The great number of Aboriginal women who “disappeared”

from Vancouver’s east side, whose disappearances and suspected

murders were barely investigated by the police over the years, and who

turned out to have been murdered by Robert Pickton is only the most

recent example of police neglect.56

The Native Women’s Association of

Canada’s “Sisters in Spirit” campaign is dedicated to researching,

documenting and remedying the alarmingly high rates of violence

against Aboriginal women, and the systemic neglect of this social

problem, dating back to the abduction and murder of Helen Betty

Osborne in 1971.57

So systemic is the problem of the disappearance and sexualized

murders of Aboriginal women in Canada that the issue has received

international attention from Amnesty International, which published a

report entitled, Stolen Sisters: Discrimination and Violence Against

Indigenous Women in Canada.58

The Amnesty International report

56

See, e.g., media coverage of this event from Canadian Broadcasting Company, in depth

coverage, “Missing Lives”, available online at: <http://www.cbc.ca/news/background/pickton/miss

inglives.html>. See also the CBC journalist’s investigation of this phenomenon which resulted in the

video, “Traces of Missing Women”. See also online at: <http://www.missingnativewomen.org/>.

57

See Native Women’s Association of Canada website, online at: <http://www.nwac-

hq.org/en/background.html>.

58

See online at: <http://www.amnesty.ca/stolensisters/amr2000304.pdf>.


begins its scathing exposé of the neglect of crimes against Aboriginal

women by reminding readers that an inquiry into the death of Helen

Betty Osborne criticized the police for their sloppy and racist

investigation, and for taking a decade and a half before one of the four

men was brought to justice. Reviewing other instances of police

disregard of sexual assaults, abductions and murders of indigenous

women in Canada, the authors observe that, “in every instance, …

Canadian authorities should have done more to ensure the safety of these

women and girls or to address the social and economic factors that

helped put them in harm’s way.59

These by now well-publicized examples of police neglect of crimes

against Aboriginal women, and police and other system failures to

protect in cases of spousal homicide and other cases of intimate

violence, illustrate the ways in which too many women encounter

massive gaps in criminal justice system responses — gaps, omissions

and failure to protect which render them vulnerable to further harm, and

deny them equal protection of and under the law. These gaps and failures

must be made subject to legal scrutiny.

VI. PRIVATE LAW REMEDIES FOR PUBLIC HARMS: THE

PUBLIC/PRIVATE DISTINCTION, THE STATE AND THE ROLE OF LAW

Delineating where the “private” ends and the sphere of the public

begins has proven to be a notoriously challenging exercise, and one

which tort scholars have engaged from a variety of perspectives. Some

argue that tort law is and ought to remain just that — a fundamentally

private law adjudication of rights, conflicts and disputes between the

particular parties involved, which should necessarily be disconnected

from any broader social or policy implications or justice concerns,

including equality concerns.60

Others argue, to the contrary, that tort law

can and should be concerned with its public dimensions and can and

should be engaged with egalitarian goals. Tsachi Keren-Paz, for

example, argues that tort law “can and should be used progressively as

59

Id., at 2.

60

This general approach would be consistent with that taken by those who see tort law

through a corrective justice lens. See, e.g., Ernest J. Weinrib, The Idea of Private Law (Cambridge:

Harvard University Press, 1995).


one mechanism in the ongoing struggle to achieve a more just and

egalitarian society”.61

In arguing that states should be subjected to private law tort claims

(as well as other legal actions) for their failures to protect in cases of

gendered violence, I am necessarily arguing for a view of tort law which

sees private law as infused with public dimensions as well as for a view

of tort law which, like Keren-Paz, sees it as a potential private law

source of engagement with broader social justice issues. Jane Doe62

was

a legal action, for example, undertaken in private law but one that

straddled the public/private legal divide. Given the complicated

character of the divisions between public and private, the Jane Doe

litigation and the M. (B.)63

case, despite its underdeveloped legal

analysis, illuminate how private legal actions can explicitly engage much

wider public policy dimensions.

Critics have claimed that courts should not be engaged in a way that

“interferes” with police work. But negligence and discrimination should

not be insulated from legal liability by the policy-making role of public

authorities. There is scarcely a private law question which does not have

some public dimensions, and both Jane Doe and M. (B.) illustrate the

relationship between the public and the private in law in Canada.

The typical policy reasons public authority defendants often

successfully advance for immunizing themselves from civil liability

cannot obtain in cases such as these. I would go even further, however,

and suggest that the policy arguments running through much of the case

law64

to protect government actors from owing a private law duty of

care, or a constitutionally enforceable obligation, are tenuous at best, and

provide far too wide a scope of protection from liability for state

agencies. In fact, contrary to the view that policy should insulate state

actors from private law liability, I would argue that there are more

compelling policy arguments supporting the view that liability in tort

should be imposed on the state (when the elements of the claim are made

out). In other words, policy should support private law liability for the

state, not insulate the state from it. Only a private law action potentially

61

Tsachi Keren-Paz, Torts, Egalitarianism, and Distributive Justice (Farnham, Surrey:

Ashgate Publishing, 2007), at 37.

62

Supra, note 1.

63

Supra, note 2.

64 See, for some U.K. and Canadian examples, Anns v. Merton London Borough Council,

supra, note 19; Kamloops (City) v. Neilsen, [1984] S.C.J. No. 29, [1984] 2 S.C.R. 2 (S.C.C.);

Osman v. Ferguson, [1993] 4 All E.R. 344 (C.A.); Cooper v. Hobart, supra, note 19; Edwards v.

Law Society of Upper Canada, [2001] S.C.J. No. 77, [2001] 3 S.C.R. 562 (S.C.C.).


allows injured parties not only to have the symbolic legal recognition

that their rights have been violated, but to have compensation awarded to

restore them to the position they would have been in but for the state’s

negligent conduct toward them.

Given how difficult and overwhelmingly costly it is to mount a civil

action, the vast majority of potential plaintiffs, even those with the

worthiest claims, are more often than not effectively precluded from

pursuing a legal remedy, demonstrating how overblown the “floodgates”

concerns are, although courts are fond of identifying them. The access to

justice issues plaguing the Canadian legal system have even been

explicitly noted by the Chief Justice of the Supreme Court of Canada.65

But beyond access to justice issues, while political processes allow for

changes of government, only legal processes can specifically enable

those directly harmed by government action or inaction, to seek a

remedy against a public authority.

VII. CONCLUSION

In cases of violence against women, police inaction has proved deadly.

A necessary function of the law here is to counteract the deeply rooted

power of cultural framing devices, through liability, the ultimate social

determination of wrongness.66

The trend towards refusing to recognize that public authorities such

as the police can and should owe a private law duty of care and/or a

constitutional obligation to citizens has been part and parcel of the larger

protection of the state from private law liability. Given that one of the

major legal remedies for a social problem such as violence against

women is found in the state’s commitment to protect those whose lives

are at risk, state accountability for ensuring the adequacy of this

protection may require legally imposed responsibility in the face of

institutional carelessness or disregard, intransigence and denial of

responsibility. It is also imperative that state accountability be imposed

for failure to protect or for negligence related to other expressions of

systemic discrimination.

The persistent absence of adequate legal protections for assaulted

women in Canada poses a violation of a number of legally guaranteed

65

See “Access to justice is critical for Canadians: Chief Justice”, Katie Rook, CanWest

News Service, National (March 9, 2007).

66

Hall, supra, note 51, at 615.


rights, protected, in theory at least, both at common law and

constitutionally. These rights must be justiciable and negligence is one

important way to seek remedies for harms related to state failures. While

constitutional rights protections are highly important they do not provide

what private law does — that is compensation for the harms to the

plaintiff caused by the negligent defendant, compensation which is the

mechanism through which to attempt to put the plaintiff, as much as is

possible, back in the position she would have been in, but for the

defendant’s negligence.

The concern that the imposition of civil liability on the police and

other state agencies should be severely curtailed in order to keep the

floodgates closed is problematic on many levels. This concern was

raised after the release of the publicized Jane Doe67

decision, and is an

argument raised in virtually every case involving the police, or indeed,

other public authorities. It is, however, a specious argument premised on

faulty assumptions. There is no reason to presume that it will provoke

uncontrolled pressure on the courts from eager litigants. Too many

forces, including formidable access to justice barriers, conspire against

this possibility. Even if it did, that is what the law is supposed to do —

adjudicate and settle legal disputes and legal rights claims.

Along these lines, in contrast to the view that the “tort crisis”

revolves around too many claims and too much liability — a particular

concern for public authorities — it could be argued that there is not

enough liability imposed upon negligent state agencies and that not

enough claims are brought forward. Indeed, Richard Abel argues that the

“real tort crisis is old, not new. It is a crisis of underclaiming rather than

overclaiming”.68

Tort law in general, and negligence in particular, provide legal

remedies for harms or injuries caused by the careless conduct of those

who owe us a duty to prevent foreseeable harms. When it is the state

whose negligent conduct has caused or contributed to the harm,

however, the scope of liability is often significantly restricted, for policy

reasons which are, in the main, overly broad and sometimes completely

untenable. Challenging these restrictions is part of the project of using

law to move towards social justice and keeping tort law’s potential

dynamism alive and well.

67

Supra, note 1.

68 R.L. Abel, “The Real Tort Crisis — Too Few Claims” (1987) 48 O.S.L.J. 443, at 447.


Despite the difficulties that attach to tort actions, such actions are

one way for citizens to force external public scrutiny of insular and self-

protective institutions such as the police. Compensation for harms

suffered is an important remedy available only through civil litigation.

Where there is a duty owed to a plaintiff or class of plaintiffs, it is for the

courts to determine liability and to establish the parameters of

accountability within which institutions of the state must operate. Policy

considerations should not form a legal shield behind which state

agencies can be negligent or discriminate with impunity. We must

continue to push the boundaries of the liberal state towards a state

committed to substantive equality and positively bound to providing the

conditions for its realization.

Tort law can and should play a role in the broader strategy of

realizing substantive equality, and constitutional values can and

sometimes should be drawn upon in developing negligence analyses

intended to ground state accountability.69

The Supreme Court of Canada

has, in fact, expressly stipulated that tort law is to be developed and

applied in accordance with Charter values.70

Subjecting state failures, inaction, and neglect both to constitutional

and common law scrutiny, and pursuing test case litigation to establish

positive duties flowing from the constitutional guarantee of equality as

well as rights at common law, is a way of posing a direct legal challenge

to the dominant construction of the liberal, minimalist, and non-

interventionist state. As part of the legal arsenal available to undertake

this challenge, tort law has a role to contribute, and this role needs

insistently to be expanded.

69

While the perspective taken is distinct from my own, some writers have argued that

constitutional values and constitutional protections of human rights can be and are connected to

private law in Canada. See e.g., Lorraine E. Weinrib & Ernest J. Weinrib, “Constitutional Values

and Private Law in Canada”, in Daniel Friedmann & Daphne Barak-Erez, eds., Human Rights in

Private Law (Oxford: Hart, 2001).

70

R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd., [1986] S.C.J. No. 75, [1986] 2 S.C.R.

573 (S.C.C.); R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] S.C.J.

No. 7, [2002] 1 S.C.R. 156 (S.C.C.).

private law, the state and the duty to protect: tort actions for police failures in gendered...

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