On October 4, 2007, the Supreme Court of Canada released its decision in Hill v. Hamilton-Wentworth Regional Police Services Board. The Supreme Court dismissed Mr. Hill’s appeal from the decision of the Ontario Court of Appeal, and, in a 6-3 decision, affirmed the Court of Appeal’s decision that a cause of action for negligent police investigations does exist at law.
In December 1994 and January 1995, there were ten robberies of financial institutions in Hamilton. In each case the modus operandi was essentially the same and eyewitnesses provided similar descriptions of the suspect. This led the police to conclude that the same person committed all ten robberies. Mr. Hill became a suspect after the police received a Crimestoppers tip about him subsequent to the seventh robbery. A police constable also identified Mr. Hill from a surveillance photograph taken during the fifth robbery. Ultimately, only one of the seven counts of robbery proceeded to trial. Mr. Hill was convicted at trial. On appeal from his conviction, a new trial was ordered. Mr. Hill was acquitted at his second trial. Following his acquittal, Mr. Hill commenced a civil action for malicious prosecution and negligent investigation. The trial judge in the civil action dismissed Mr. Hill’s claim.
Decision of the Ontario Court of Appeal
At the Ontario Court of Appeal, the Police defendants successfully argued that the decision of the trial judge dismissing both the malicious prosecution and negligent investigation claims should be upheld. However, the Police defendants also took the opportunity to request that the Court of Appeal overturn its earlier decision in Beckstead v. Ottawa (City Chief of Police), which held that in Ontario, investigating police officers could be held liable to suspects for negligence arising from the conduct of police investigations. The Court of Appeal convened a special five judge panel to consider the issue and unanimously upheld its decision in Beckstead, thereby affirming that investigating police officers could be found liable to suspects who sustained harm as a result of negligent police investigations. Both Mr. Hill and the Police Defendants appealed from the decision of the Ontario Court of Appeal.
Mr. Hill’s appeal to the Supreme Court of Canada concerned whether the impugned police investigation had been conducted negligently. The Police Defendants cross-appealed, asking the Supreme Court to find that the tort of "negligent investigation" (negligence in relation to the conduct of police investigations) was not a recognized cause of action. A number of parties intervened on each side of the case. The Supreme Court was unanimous in dismissing Mr. Hill’s appeal. However, the Court was divided (six judges to three) in also dismissing the cross-appeal of the Police Defendants.
The majority of the Court held that police officers could be held liable to suspects for negligent investigation. The majority held that this is consistent with the values and spirit of the Canadian Charter of Rights and Freedoms ("Charter"), which emphasize liberty and fair process. The majority also stated that policy reasons support the recognition of the tort of negligent investigation. In this regard, the majority noted that recognizing an action for negligent police investigation might assist in responding to failures of the criminal justice system. The Court held that existing causes of action of malicious prosecution, false arrest, and false imprisonment were inadequate to provide a remedy for negligent acts. Accordingly, recognizing the tort of negligent investigation was necessary to "complete the arsenal" of existing remedies.
Duty of Care
The Police Defendants argued that the Court should not recognize liability to suspects for negligent investigations because to do so would place investigating officers in a conflict between their duty to the public at large to investigate and solve crimes and a duty in tort law to consider the private interests of the suspect. However, the majority held that no such conflict exists. The majority stated that a duty to the public to investigate in accordance with the law does not conflict with a duty in tort to take reasonable care toward the suspect. The Court noted that as the suspect is a member of the public, he or she would share the public’s interest in diligent investigation in accordance with the law. The Court also determined that the alleged conflict was essentially speculative and would not give rise to serious policy issues. Rather, the majority held that recognizing a duty of care owed by investigating police officers to suspects would reduce the risk of wrongful convictions and increase the probability that only the guilty would be charged and convicted.
The Police Defendants also argued that recognizing a duty of care owed to a suspect would impair the discretion inherent in police work. The majority disagreed, noting that courts were not to second-guess the reasonable exercise of discretion by police officers. Recognizing a duty of care however was consistent with the principle that the discretion could not be exercised unreasonably.
The majority also dismissed arguments that recognizing a duty of care to suspects by investigating police officers would have a chilling effect on policing and would result in a "flood of litigation". The Court held that the record did not support either conclusion. Further, the Court noted that if recognizing liability for negligent investigation resulted in more careful investigations, it would not be a "bad thing".
Standard of Care
Having established a duty of care to suspects, the majority then considered the issue of what the appropriate standard of care owed by police officers would be, given their public duties in enforcing the criminal law, and maintaining the peace and public order. The Court held that the appropriate standard of care is the "overarching" standard of a reasonable police officer in similar circumstances, applied in a manner that gives due recognition to the discretion inherent in police investigation. The Court noted that this standard is not breached because the police officer’s manner of exercising discretion is deemed to be less than optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. The standard is not perfection, or the optimal exercise of discretion, judged in hindsight. Rather, the standard is that of a reasonable officer, judged in the circumstances prevailing at the time the investigating officer’s decision was made, including the urgency of the situation and deficiencies in available information.
The Court also held that, where a police officer has investigated reasonably, but others, such as lawyers, prosecutors, judges or others in the criminal justice system have acted unreasonably in determining the guilt or innocence of the suspect, the police officer will have met the standard of care and cannot be held liable for the unreasonable conduct of other actors in the criminal justice system.
On the issue of causation, the majority held that where the contributions of others to the injury of the suspect/plaintiff are so significant that the same damage would have been sustained even if the police had investigated reasonably, causation will not be established.
In an action alleging negligent investigation, the limitation period begins to run from the date the relevant charges were successfully terminated in the plaintiffs favour.
In a vigorous dissent, the three-judge minority indicated that it would have refused to recognize liability to suspects for negligent police investigation. The minority noted that in addition to the courts of most jurisdictions in Canada, the courts in the United Kingdom, Australia, New Zealand, and the United States had all refused to recognize that police officers owe a duty of care to suspects. In the minority’s view, the duty of police officers to make decisions in the public interest in pursuing an investigation is irreconcilable with a finding that a police officer, simultaneously, owes a duty of care to act in the interests of a suspect being investigated.
The Supreme Court of Canada’s decision firmly establishes the existence of a duty of care in negligence owed by investigating police officers to suspects they are investigating. At the same time, the decision outlines some of the limits and parameters of the duty owed, including the standard of care and the necessity of deference to the reasonable exercise of police discretion.
Future cases in the area will most likely focus on the application of the appropriate standard of care and the conduct to be expected of investigating police officers in the circumstances of each case. The general standard of care articulated by the Supreme Court is analogous to the standard of care required of any professional. However, it is also to take into account specific realities of police investigations, such as the formation of reasonable and probable grounds for the laying of a charge, and the realities of limited resources, time constraints, and incomplete information. Undoubtedly, future cases will see the standard refined. This process will likely include the proliferation of competing expert evidence on the standard of care to be expected of a reasonable police officer, in each case.