Originally published in Blakes Bulletin on Litigation, October 2007
"Recognizing an action for negligent police investigation may assist in responding to failures of the justice system, such as wrongful convictions or institutional racism. The unfortunate reality is that negligent policing has now been recognized as a significant contributing factor to wrongful convictions in Canada."
Chief Justice Beverley McLachlin,
Hill v. Hamilton Wentworth Regional Police Services Board
On October 4, 2007, the Supreme Court of Canada handed down its decision in Hill v. Hamilton Wentworth Regional Police Services Board (No. 31227) (Hill). The Court ruled that the police in Canada are not immune from civil liability for negligence in their investigations, and that innocent people harmed by a shoddy investigation can sue for damages.
Blakes is pleased to have been selected by the intervener Canadian Civil Liberties Association (CCLA) to argue this important case on police powers and accountability. Prior to this decision, Ontario had stood apart from other common law jurisdictions (including the United Kingdom, Australia, New Zealand, the United States, and all other Canadian provinces except Quebec) in supporting the right to sue for negligent investigation.
The Appellant, Jason George Hill, is an aboriginal man who was wrongfully convicted and spent more than 20 months in prison in relation to bank robbery charges. Mr. Hill successfully appealed from his conviction and was acquitted after a new trial. He then sued the police alleging, among other things, negligence on the basis of witness contamination, improper recording and interviewing techniques, structural bias in a photo line-up (in which Mr. Hill was the only non-Caucasian) and police failure to re-investigate after learning of potentially exculpatory evidence. The trial judge dismissed Mr. Hill’s negligence claim, holding that the police’s conduct did not fall below the applicable standard of care.
Mr. Hill appealed and the Ontario Court of Appeal convened a five-member panel to re-examine whether Ontario should continue to recognize the tort of negligent investigation by police. The Court of Appeal conducted an extensive analysis and unanimously upheld the recognition of the tort. However, the Court of Appeal divided on the application of the law to Mr. Hill’s case, finding against him in a 3:2 decision and dismissing his claim.
Mr. Hill appealed to the Supreme Court of Canada. The police cross-appealed, arguing against the existence of the tort. By a 6:3 majority, the Court concluded that the tort should be recognized for all of Canada. Chief Justice McLachlin, for the majority, held that a police officer can be held liable if his/her investigatory conduct falls below the standard of a reasonable police officer such that harm is caused to the suspect. However, in the result, all nine judges found against Mr. Hill on the facts and dismissed his claim.
Following the tort analysis in Anns v. Merton London Borough Council (1978 House of Lords), the Chief Justice determined that a duty of care exists. First, it is reasonably foreseeable that negligent police investigation may cause harm to the suspect under investigation. Second, the relationship between the police and the suspect is sufficiently close and direct, since the suspect is singled out and investigated. Additional considerations supporting the finding of a proximate relationship giving rise to a duty of care included the risks to the suspect’s freedom and reputation, the failure of other tort actions and government compensation schemes to provide an adequate remedy to victims of negligent police investigation, and the benefit to the public interest from potentially minimizing wrongful convictions and institutional racism.
The Chief Justice noted that police owing a duty of care to targeted suspects is in keeping with Charter values of liberty and fair process, and she found no compelling policy reasons to negate the duty of care. She dismissed arguments advanced by the Police Services Board and by the Crown as intervener that exposing the police to liability for negligence would open the floodgates to nuisance lawsuits and create a chilling effect on police that would interfere with their ability to do their jobs effectively. The Chief Justice noted that targeted suspects form a limited class of potential plaintiffs, a class further limited by the requirement to establish compensable harm. Moreover, the evidence appeared to the contrary: there had not been a large number of police negligence suits to date in Ontario or Quebec (where the civil law equivalent of negligent investigation has existed for many years). On the chilling effect point, McLachlin C.J. acknowledged that, conceivably, police might become more careful in conducting investigations, but pointed out that this is "not necessarily a bad thing". She also acknowledged the point made by CCLA in its submissions that police officers are almost always indemnified from personal civil liability in the course of performing their professional duties, which decreases the likelihood that they will recoil out of fear of lawsuits.
Also at issue in Hill was the standard of care to which police should be held. The majority of the Supreme Court, like the Ontario Court of Appeal below, concluded that the proper standard was that of "the reasonable police officer in like circumstances", rather than a higher standard such as gross negligence. The Chief Justice was careful to note that the standard is not perfection. This standard takes into account factors like urgency, prevailing practices and the discretion inherent in police investigation. Indeed, this was borne out by the Court’s unanimous dismissal of the appeal in Hill on its facts. While the investigation of the case against Mr. Hill was undoubtedly flawed, it was found not to breach the standard of care as judged by the standards of the day and what the officers knew and believed at the time of that investigation.
The Hill decision is a victory for police accountability in Canada, a cause championed by the CCLA for decades. The CCLA intervened as part of its mandate to promote the development of the common law in a manner that preserves civil liberties and protects individual freedom and dignity against unreasonable invasion by public authorities.
The CCLA was represented by Blakes on a pro bono basis, with Bradley Berg and Allison Thornton appearing as counsel, assisted by then articling student Shashu Clacken.
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