The Ontario Superior Court of Justice in Patrong v.
Banks et al. recently struck out a Statement of Claim in an
action alleging negligence and misfeasance in public office against
police on the basis that they failed to prevent shootings. The
Court found that the police owed no private law duty of care to the
plaintiff, and accordingly, the claims for negligence and breach of
Charter rights were struck. The Court also struck the claim for
misfeasance in public office.
The plaintiff was the victim of a drive-by shooting. The shooter
had been well known to the police for some time as posing a danger
and having the intention to shoot at young black males he thought
were part of a gang operating in an area of Toronto. As a result of
the shooting, the plaintiff brought an action in negligence against
the police, alleging that the police owed him a private law duty of
care to guard against the foreseeable harm of the plaintiff being
shot. The plaintiff also alleged breach of section 7 of the Charter
and misfeasance in public office. The police brought a motion to
strike the Statement of Claim and successfully argued that it was
plain and obvious that the claim disclosed no reasonable cause of
action and had no reasonable prospect of success.
In dismissing the negligence claim, the Court considered whether
there was a private law duty of care on the facts alleged by the
plaintiff, and concluded that there was not. Although the police
had knowledge of the shooter, they did not have any special
knowledge which would establish the relationship of proximity
between the police and the plaintiff which is necessary to find a
private law duty of care. The Statement of Claim only showed that
the plaintiff was a member of a large unidentifiable class of
foreseeable victims, and the police had no way of knowing who the
shooter would perceive to be a member of the specific gang.
Furthermore, all residents of the area where the shooting occurred
were at risk of foreseeable harm and not the plaintiff in
particular. The Statement of Claim did not show how the plaintiff
had any greater need for police protection from the shooter than
any other resident of the area, and accordingly it would not have
been reasonable for the police to be more mindful of the
plaintiff's safety than that of anyone else.
The Court also noted that the Police Services Act does not
create a private law duty of care to specific individuals, but
rather to the public as a whole.
With respect to the claim that the police breached the
plaintiff's right to life, liberty and security of the person
by not preventing the shooting, the Court stated that the Charter
does not impose a positive obligation on the police to prevent
Charter breaches by other people. Additionally, the Court accepted
the argument that a successful section 7 challenge would have
required a finding that a private law duty of care existed, which
was not found in this case.
Regarding the claim for misfeasance in public office, as the
Statement of Claim contained no allegations that the police's
conduct was unlawful or that the police intended to injure the
plaintiff, it too had no reasonable prospect of success.
SIGNIFICANCE OF THE DECISION
The plaintiff in this case was attempting to compare himself to
the plaintiff in Jane Doe v. Toronto Police. This decision
demonstrates that the scope of police liability to victims of crime
is limited, and Jane Doe v. Toronto Police will not be easily
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