Causation, Common Sense, and the Common Law: Replacing Unexamined Assuptions with What We Know about Male Violence against Women or from Jane Doe to Bonnie Mooney

Saturday, January 1, 2005

Published in:
Canadian Journal of Women and the Law, Volume 17, Number 1, 2005, pp. 87-116 (Article)

In this article, Elizabeth Sheehy argues that Jane Doe v. Metropolitan Toronto Police, wherein the police were held accountable in law for sex discrimination in violation of women's section 15 equality rights under the Charter and for negligence in their investigation of a serial rapist, represents a high point in feminist litigation. She details the feminist knowledge, language, and strategy as well as the individual contributions by Jane Doe herself, her lawyers, her experts, her judges, and even a police officer that together made this groundbreaking legal victory possible. She compares this case to Mooney v. Canada, a case also involving sexism in the policing of male violence against women, where Bonnie Mooney's negligence case was lost on the legal stumbling block of proof of causation. Elizabeth Sheehy suggests that although feminists became involved in this case on appeal and argued that Bonnie Mooney's section 15 rights were infringed, proof of the element of causation could have been facilitated had women's equality been at issue at the trial level. She shows how a feminist analysis of wife battering and femicide could have been used to challenge the assumptions of both police and judges that in turn shaped the ruling on causation and argues that even when lawyers fail to raise section 15 arguments, judges bear a responsibility to interpret the law consistent with the equality guarantee.