RNC issued warning for good reason

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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

Organizations: Toronto Police force, Ontario Superior Court, Newfoundland and Labrador Royal

Geographic location: Wellesley, Toronto, Ontario Newfoundland and Labrador George Street Canada

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  • Dara
    February 25, 2016 - 10:56

    I think we all understand advisories must be issued. But think of the drunk driving advisories police issue before holiday weekends. Yes, there's usually a sentence in there warning sober drivers to be on the lookout and extra cautious, but it doesn't go so far as to say "make sure you're willing your seatbelt and have filed a travel plan with your relatives in case you are involved in an accident where a drunk driver is at fault." I feel the advisory could've been better worded by mentioning there are some safety precautions women can revisit at a time like this, but provide those safety precautions via another medium. Something like this: The RNC has recently become aware of increased reports of drugging in the downtown setting. It is everyone's duty to report any suspicious behaviour and we would expect anyone with information to come forward. We would like to remind everyone that there is no legally acceptable reason to create intoxication on drugs or alcohol in another person without their knowledge. This is assault. In addition, consent cannot be given by an individual while impaired and any sexual acts performed with or on such an individual can result in sexual assault charges. If you think you may be a potential target of such behaviour there are some safety precautions you can follow that may reduce your risk. Please visit (link to a website) if you are unaware of these precautions. Remember, you have a right to feel safe at all times. We welcome the public's input on additional safety measures. We ask anyone that feels they have may have witnessed or experienced this illegal behavior to please come forward so that we may gather information needed to stop the perpetrator(s).

  • Lovers in Dangerous Times
    February 22, 2016 - 11:52

    Not really on the topic, but... It is also against the criminal code to drive a vehicle while impaired - it may take only several drinks to be so. Yet the patrons may well legally - however unwisely - agree to a romantic encounter while still "impaired". Do they need to be warned of that hazard? The RNC are obliged to warn of exceptional hazards - would it hurt to suggest some common sense as well? With modern technology, maybe just take a phone number, friend on facebook (block if he/she turns out to be a creep)... check out your date for another evening. While mentioned: balconies are an important part of building fire safety design. The problem is generally one of egress. To be able to quickly leave a room might mean it is also easy to enter it. Bedroom windows have to be large enough to climb out thru - but they are large enough to climb in thru too. Patio (balcony) doors are tempting because of the large size. Making portals more difficult to enter may make them difficult to exit. There is more design to be done yet. Deterrence and enforcement will have to suffice for now.

  • jrh
    February 22, 2016 - 07:15

    Thank you very much for this. Well stated and well needed. I reread the RNC statement a couple of times to try and understand the problem. The RNC acted in the interest of the public and in no way victimized those they tried to protect. It was essential to get that message out and you will never know if it helped someone. It certainly did no harm. Speed is of the essence in cases like this and no time to spend days analyzing and getting the spin right. Well done....we still need to get the morons and see justice done. All the other suggestions are valid but criticizing the initial urgent message was 'silly' and did little to help the organizations who were alarmed. Better they simply added to the message.