Roger writing the LAWmag

Late Justice For A Woman's Apocalypse

The common law and, for that matter the civil law is so mature and all-encompassing that it is difficult to find much to get excited about in the endless drone of cases that come from our courts.

Not so with the saga of Marian Evans v David Sproule where Evans stands as nothing less than a heroine.

Candle and justiceAs does her lawyer Susan Vella of Toronto, for standing by her client as trial expenses mounted.

Evans, while only 24 years old, and back on January 6, 1979, had just dropped her boyfriend home when she was pulled over by David Sproule, in full police regalia, on Danforth Avenue in Toronto.

Unknown to her, this police officer was a closet sexual predator on the prowl.

At trial, the Court heard of Sproule's previous sexual assault against another woman which had occurred on December 22, 1978. The previous incident had been witnessed by another officer, Kershasp Mulla, but not immediately reported.

According to the judgment of the judge, Sandra Chapnik, Sproule told his victim that she was liable to a 14-year prison term for a traffic violation and then asked her to sit in the front passenger side of his police car where he proceeded to sexually assault her.

The reasons for judgment are not for the squeamish but then a moment of horror in the comfort of one's home gives necessary perspective:

"He then pushed her right shoulder towards him and reached inside her coat, pressing hard with his hand over her right breast. He kept trying to kiss her, leaned his chest against hers and put his head close to her breast. He then put his hand on her leg and started to rub her leg.... The officer then began to push her down, making her lie her on the seat on her back. In her words, ‘he was on top of me smothering me with his body.’"

The young victim then embarked upon a more long-term path of pain-and-suffering victims of sexual abuse must travel; a long road of emotional loss and mutation.

In the case of Ms Evans, the event was life-defining, her self-confidence sucked from her as if by a vampire. Previous to the incident she had been a vibrant part of her family. But when she reported the incident to the local rape crisis center, it was made known to her parents and family from then on, she felt marked. The estrangement from her family became almost total and Marian Evans did not successfully pursue post-secondary education.

But when she did report the incident, criminal charges were laid against Sproule. Only then did Mulla report the earlier incident.

But it was too late.

In the event, Sproule resigned from the police force in August of 1979.

At trial, in September 2008, Ms Evans described her inner demons:

"I feel depressed. I feel emotional all the time. I am confused about my feelings. It is hard for me to accept kindness from people because I do not trust them. I blame myself. I feel guilty. ... people can see through me so I stay away from people. I keep my distance from people. I have no ambition. I am 54. I am only figuring things out now. It is not like I am, you know, dead or anything, but it is hard."

By 1985, she had become a single parent and by the time of the trial, she had a $30 an hour job freelancing for a publishing company.

In the context of these horrendous and sad facts, Marian began counseling in 2001 and came to realize that her very being had become infected by the 1979 actions of David Sproule.

In 2002, she sued him and his employer, the Toronto Police Services Board.

Sproule, who now lives in Northern Ontario, abstained from trial and correspondingly, judgment was awarded against him.

Once the evidence was entered, two monumental issues faced the court.

The first was whether the police board was responsible for the tort of their employee; put in legal terms, was the board vicariously liable for the misconduct of David Sproule.

Justice Chapnik In a gutsy judgment, Chapnik (pictured) took the first of her two bold judicial steps:

"Sproule’s actions were so connected with matters authorized by the Board that they may be properly linked with them so as to justify the imposition of vicarious liability on the Board. It was the Board that provided Sproule with the opportunity for Sproule to abuse the considerable power and authority granted to him. At the same time, its objectives fostered obedience and trust on the part of the part of the victim whose vulnerability, in this situation, was manifest."

This meant that regardless as to Sproule's whereabouts and financial circumstances, Marian Evans, if she could jump the second hurdle, could enforce and collect her judgment against a solvent defendant, the police board.

sexual abuse killsThe pith and substance, and the wondrous beauty of Marian Evans' passage through justice lies in the Court’s resolution of the limitations or laches issue.

In the theories of law, there comes a time when a legal claim must fail because of the mere efflux of time. Delay becomes increasingly unfair to a defendant.

Thus, every jurisdiction has a Limitations Act which sets out a period of time within which legal claims must be advanced, or the claim is lost - dead in the water.

For Marian Evans, the shadow was thus cast by the Ontario Limitations Act which limited a claim for assault to four years.

At trial, the police board accepted that in the case of historic sexual assaults, the limitations clock did not start ticking until the victim came to realize and recognize the latent damages; a substantial awareness test.

But, the Board added, once a victim came of the age of majority, the clock ought to start ticking in any event. They noted that in the case at bar, the plaintiff has suffered for assault in 1979 when she was already 24 and had then waited until she was 54 to litigate.

Justice Chapnik didn't bite on that and she awarded Ms Evans $215,000 in damages, plus $25,000 of punitive damages against Sproule:

"I find on the evidence, that the limitation period did not accrue until the year 2001, when the plaintiff was reasonably capable of discovering, not only the wrongful nature of the defendant’s acts, but the nexus between the sexual assault and her injuries, through the therapeutic process.  Accordingly, she commenced her action well within the four-year limitation period established in the Limitations Act.

"I reject the defendant’s assertions that the substantial awareness test is limited to cases of sexual assault involving young children, incest or established fiduciary or therapeutic relationships gone bad."

But for Marian Evans, once she has paid her lawyer and even after she has taken a cruise or two, or bought a new car for her son, the wrong will never be righted.

No amount of money can give her back the peace, joy, love, self-confidence and youthful energy with which Marian Evans who, on January 6, 1979, at 3:30 in the morning, innocently drove through the streets of Toronto, a young woman on top of the world.

But the judicial decision Justice Chapnik signed now stands as another bright candle in the still too dark antechamber of horrific injustice to the victims of any form of sexual assault - be they male or female.

The justice system must, sooner rather than later, fully illuminate these vicious and cowardly torts with the bright floodlight of justice from which no predator can hide, be it behind garbage cans, badges of authority or the passage of time.

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Posted in Personal Injury and Tort Law, Sexual Assault, Social Justice
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