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RNC issued warning for good reason

by Geoff Budden & Allison Conway

On Feb. 9, the Royal Newfoundland Constabulary issued a public safety advisory “regarding instances whereby females reported being administered drugs surreptitiously in the St. John’s downtown area and then possibly sexually assaulted.”

It went on to provide certain other facts and ended by reminding the community of “some safety tips,” such as socializing with friends in groups and to not leave beverages unattended.

We feel that the public safety advisory can be best understood by providing some of the legal and historical background to such warnings. In fact, the RNC and other Canadian police forces are, in certain circumstances, required to give warnings.

Beginning in late 1985, a sexual predator stalked women in the Church/Wellesley neighbourhood of Toronto. The police knew that he attacked women who lived alone in second- and third-floor apartments with climbable balconies. Rather than publicize these crimes and warn potential victims of this “balcony rapist” and of his modus operandi, the police decided to conduct a low-key investigation. Their fear, apparently, was that he, too, would see the warning and would flee before they could catch him.

A woman who has chosen to be known as Jane Doe was, on Aug. 14, 1986, asleep in her second-floor apartment on Wellesley Street East when this rapist accessed it via her balcony. She was raped at knifepoint in her own bed. The “balcony rapist” was eventually caught and sentenced to 20 years in prison for his crimes; Jane Doe was his fifth known victim in the Church/Wellesley neighbourhood.

Jane Doe, having become aware that the police failed to warn of his previous assaults, sued the Toronto Police force for failing to protect her.

Madam Justice Jean MacFarland of the Ontario Superior Court of Justice found that the victims of the “balcony rapist” were essentially  used as “bait” in the police force’s attempt to catch the perpetrator and that they had been left “completely vulnerable” and without the protection of the police. She cited the Ontario Police Act, which was in force at the time, which said in part that “members of police forces … are charged with the duty of preserving the peace, preventing robberies and other crimes…,” as well as a common law duties to prevent crime and protect life and property.

She ruled that “the police failed utterly in their duty to protect these women and the plaintiff in particular from the serial rapist the police knew to be in their midst by failing to warn so that they may have had the opportunity to take steps to protect themselves.”

Justice MacFarland outlined the requirements of such a warning as follows: “That warning could have been by way of a canvass of their apartments, by a media blitz, by holding widely publicized public meetings or any one or a combination of these methods. Such warning should have alerted the particular women at risk, and advised them of suggested precautions they might take to protect themselves.”

The court found that the police were liable in negligence for failing to warn potential victims of an aggressor that was targeting a specific population. Ultimately, Jane Doe was awarded in excess of $220,000 for the harm suffered by her as a consequence of the sexual assault.

The common law duties recognized by the court in this Jane Doe case apply equally in this province, and the Newfoundland and Labrador Royal Newfoundland Constabulary Act, 1992 establishes similar duties to that of the Ontario Police Act.

Section 8 of the Newfoundland and Labrador Act outlines the duties of police officers, in part, as follows:

8. (1) The duties of a police officer include:

(a) preserving the peace;

(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;

(c) assisting victims of crime…

The combination of this Act and of Justice MacFarland’s Jane Doe decision means, we believe, that the RNC is required to publicize warnings where there exists a risk to an identifiable group of people. This warning must contain suggestions as to how members of the community might protect themselves from the identified risk. Failing to do so could lead to a finding by a court that the police have failed to discharge their statutory and common law duties to the public, as was the case in Jane Doe.

Worded properly, such warnings need not be “victim blaming” but can be “harm reduction.” The survivor, whether or not they are aware of, or able to heed the warning, is never to blame. As always, survivors of sexual assault should feel safe in disclosing their assault to police and other trusted people and not fear being judged or ridiculed for any perceived failure to take precautions.

That is not to say that the police and community groups could not supplement legally required warnings with other public notices, including messages designed to reduce the stigma that can silence women, or warnings to would-be perpetrators outlining the legal consequences of committing a sexual assault.

One possible option: posters on George Street proclaiming “Under the Criminal Code of Canada, the maximum sentence for sexual assault causing bodily harm is imprisonment for 14 years. Something to think about before you slip something toxic into someone’s drink.”

Geoff Budden and Allison Conway

Budden & Associates, St. John’s

This letter originally appeared as a Letter to the Editor in The Telegram, February 20, 2016

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