Duty, causation, and third-party perpetrators: The Bonnie Mooney case.

• Author: Hall, Margaret Isabel

When Bonnie Mooney's ex-partner threatened and chased her, she went to the RCMP for help. After hearing her complaint against Ronald Kruska and reviewing Kruska's lengthy record of violent offences, Constable Andrichuk told Mooney there was little he could do. Rather than investigating, as required by a provincial domestic abuse policy, he advised her to "stay in public places." Seven weeks later, Kruska broke into Mooney's isolated home with a shotgun, wounding Mooney's twelve-year-old daughter and killing a friend who was staying with Mooney.

Mooney and her two daughters, suffering from post-traumatic stress disorder, sued Constable Andrichuk and the governments of British Columbia and Canada. Both the trial judge and the British Columbia Court of Appeal found that the claim must fail, as causation could not be established.

The author critiques these findings, and argues that it is coherent, principled, and necessary to find both duty of care and causation where police inaction allows domestic violence to continue. Drawing primarily on sources from Canada and the United Kingdom, she explores the extent of police liability, and the responsibility to protect particularly vulnerable individuals. The author argues that it is inappropriate to find that police never owe a duty of care to the public: a duty of care should depend on specific factual circumstances. She also argues that the traditional "but for" test for causation is not appropriate where inaction is the cause of the harm. Just as the material contribution test was developed to allow liability where causation was scientifically uncertain, a new test for causation should be developed where authorities fail to reduce a risk. The author concludes that imposing liability is necessary to deter police from abdicating their responsibility to protect.

Quand l'ex-conjoint de Bonnie Mooney lui profera des menaces et se lanca a sa poursuite, elle sollicita l'aide de la GRC. Apres avoir entendu sa plainte contre Ronald Kruska et examine le dossier de celui-ci, qui contenait pourtant de multiples infractions violentes, l'agent Andrichuk dit a Mooney qu'il n'y pouvait pas grand-chose. Plutot que de lancer une enquete, ainsi que le prescrivait la politique provinciale en matiere de violence conjugale, il lui recommanda de <>. Sept semaines plus tard, Kruska faisait irruption dans la residence isolee de Mooney avec un fusil de chasse, blessant la fille de celle-ci, agee de douze ans, et tuant une amie qui demeurait avec Mooney.

Mooney et ses deux filles, souffrant d'une nevrose post-traumatique, poursuivirent l'agent Andrichuk et les gouvernements de Colombie-Britannique et du Canada. A la fois le juge de premiere instance et la Cour d'appel de Colombie-Britannique detelminerent que leur demande devait etre rejetee, puisque le lien de causalite ne pouvait etre etabli.

L'auteure critique ces conclusions et soutient qu'il est coherent, raisonne et necessaire de determiner qu'il existe bien un devoir de prudence et un lien de cansalite lorsque l'inaction de la police permet a la violence conjugale de se poursuivre. Se basant surtout sur des sources du Canada et du Royaume-Uni, elle explore l'etendue de la responsabilite policiere et l'obligation de proteger les individus qui sont particulierement vulnerables. L'auteure soutient qu'il est inopportun de conclure que la police n'est jamais tenue a un devoir de prudence envers le public : le devoir de prudence devrait dependre des circonstances factuelies specifiques. Elle soutient aussi que le test traditionnel du "but for" pour etudier la causalite est inopportune lorsque c'est l'inaction qui est a l'origine du prejudice. Tout comme le critere de la contribution materielle a ete developpe afin de maintenir la responsabilite lorsque la cansalite etait scientifiquement incertaine, un nouveau critere de causalite devrait etre developpe lorsqu'il s'agit d'un cas ou les autorites not manque a leur obligation de reduire un risque. L'auteure conclut qu'il est necessaire d'imposer la responsabilite afin de dissuader la police de renoncer a son devoir de protection du citoyen.

 Introduction I. The Events II. British Columbia Supreme Court III. British Columbia Court of Appeal A. Duty of Care B. Causation IV. Evaluation A. Duty of Care 1. Proximity

2. Policy B. Causation Conclusion

   Introduction

   Do the police have a responsibility to protect women and children from domestic violence? The answer, according to the British Columbia Court of Appeal in Mooney v. British Columbia (A.G), (1) is no. While the police should use the means available to there to respond to violence against women both threatened and realized, it cannot be said that the failure to do so is itself a cause of harm. The violent man is ultimately uncontrollable, unpredictable, and solely responsible for the damage he causes; no causal connection exists between the law's failure to respond to a perceived threat or the realization of that threat in violence.

   This comment concludes that it is coherent, principled, and necessary in this kind of case to find both a duty of care and causation. Just as the material contribution test responds to situations where science can identify risk factors but not a single cause of harm, causation in cases involving third-party perpetrators must take into account the special factual characteristics of these cases.

   1. The Events

      Late one night in April 1996, Ronald Kruska smashed his way into the isolated cabin of his ex-partner, Bonnie Mooney, using a shotgun butt to break down the cabin's door. Bonnie Mooney was inside the cabin with her two young daughters, Michelle and Kristy, and her friend Hazel White. Believing that Kruska was after her alone, Mooney fled the house, leaving the girls and White inside. Tragically, this belief was mistaken; Kruska shot White dead before firing on twelve-year-old Michelle. Michelle, seriously wounded, managed to help her little sister through a bathroom window before climbing out herself, and the two girls escaped into the night. Michelle ran to a neighbour's house. Six-year-old Kristy was later found hiding in a doghouse. Kruska shot himself after setting the cabin on tire.

      The relationship between Mooney and Kruska had been marked by several unreported incidents of violence. Mooney later testified that she feared Kruska and felt powerless under his control. Mooney did complain to the police following an assault committed in 1995, during which Kruska choked her and struck her with a cane. Afraid of going to prison, Kruska implored Mooney to change her story, promising to give up his half-interest in the property they owned as joint tenants if she did so. (Mooney had provided the purchase price for the property; Kruska had made improvements to the cabin on the property.) Mooney agreed, later testifying that she had been too afraid of Kruska's response to do otherwise.

      After pleading guilty to assault, Kruska was sentenced to twenty-one days in jail and probation of one year, during which he remained under an order to keep the peace and be of good behaviour. Kruska had several prior convictions for assault causing bodily harm, unlawful confinement, manslaughter, two counts of sexual assault, and forcible confinement. He was known to be a violent individual, and had in fact been "flagged" as such in police records.

      The 1995 conviction marked the end of the relationship between Kruska and Mooney, but the property issue remained. In March 1996, seven weeks before Kruska's final, murderous rampage, the two met to discuss what should be done. Mooney chose a public park, an open and public space, as the location for the meeting. Kruska soon became agitated. After Mooney managed to leave the park (in spite of Kruska's attempts to prevent her from doing so), Kruska chased the terrified woman until she reached the safety of a friend's house.

      Following a brief discussion with her friend, Mooney proceeded to the RCMP detachment office to report Kruska's frightening and intimidating behaviour. The employee taking Mooney's statement later testified that Mooney was visibly very frightened by the incident, her hands shaking violently. The RCMP constable dealing with the complaint, Constable Andrichuk, having noted Kruska's flagging for violence, told Mooney that there was no action he could take. He recommended that she see a lawyer about obtaining a restraining order and "stay in public places in the future." (2) This latter piece of advice was of no use; Mooney was in the privacy of her own home when, over a month later, Kruska's final, terrible acts of violence occurred. It is furthermore notable that Mooney had attempted to make her private space more "public"--to the extent that this was possible--by inviting her friend, Hazel White, to stay.

      In fact, there was a course of action open to Constable Andrichuk on that day in April. Despite Andrichuk's statement to Mooney that no action was possible in the absence of an explicit or overt threat by Kruska, section 810 of the Criminal Code (3) could--and should (4)--have been invoked in this situation. This section allows the parties to appear before a judge to determine whether one had reasonable grounds to fear the other. If so, the judge may order the defendant to enter a recognizance. In fact, provincial domestic abuse policy dictated that police should apply this kind of proactive approach, rather than sitting back and waiting for the escalation into violence or explicit threat. An internal investigation carried out by the RCMP concluded that Constable Andrichuk's failure to carry out further investigation was improper. (5)

      But was this failure negligent? Mooney and her daughters claimed it was, in an action against Constable Andrichuk, the provincial government, and the federal government. They claimed that Constable Andrichuk's inaction materially contributed to Kruska's later attack, and sought damages to compensate for their post-traumatic...