Legalese_06-06

Jeff Green | Feb 09, 2006

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The duty to investigate

by SusanIrwin, Lawyer/ExecutiveDirector

A column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

Despite the current rhetoric about public accountability, it is extremely difficult to win a civil case against public organizations and individual public officials for their actions or their failures to act; municipalities, hospitals and police officers being three of the more noteworthy examples. Police officers, in particular, have always been afforded a high degree of protection for their actions, even when they exceeded their authority, provided they acted in “good faith”. In light of this tradition it is interesting to see how our Courts are willing to take a second look at the legal principles governing the protection of public officials to ensure that there is a remedy in situations of clear injustice. Readers may remember the famous “Jane Doe” case that found police liable for damages because they failed to warn citizens about a serial rapist who they knew was active in a particular neighbourhood. It set a precedent, a very narrow one, but sent a message that police forces were expected to carry out their duties with some reasonable standard of care or risk liability to the victims of crime.

Now the Ontario Court of Appeal has confirmed that an individual police officer may also be held accountable for causing harm to a suspect by failing to carry out a proper investigation. In legalese, this is referred to as the tort of “negligent investigation”.

The duty of a police officer to investigate a crime with the same degree of care as a “reasonable police officer” in the same circumstances would have done was first recognized in 1997 by the Court of Appeal in the Beckstead case. In that case Ms. Beckstead was fraudulently accused by an acquaintance of using a debit card to remove money from the acquaintance’s account. The investigating officer charged Ms. Beckstead after conducting little or no investigation and after discounting the fact that photographs taken by a machine in the bank showed that the person who used the card bore little or no resemblance to the accused. When the charges were withdrawn by the Crown Attorney for lack of evidence Ms. Beckstead successfully sued the officer and the Ottawa Chief of Police for damages for failure to perform a careful investigation. She was awarded damages of $20,000.00.

In 2005 the Ontario Court of Appeal was again asked to consider whether the tort of negligent investigation relating to police officers should remain the law of Ontario in an action by Jason Hill against the Hamilton-Wentworth Regional Police Services Board and several police officers. Hill had been charged with a number of counts of robbery after he was identified in a photo line-up which consisted of Mr. Hill (an aboriginal person) and 11 white males. After two trials Hill was acquitted of all charges with the benefit of testimony from the actual robber.

When Hill sued for damages for negligent investigation based in part on the dubious structure of the photo line-up, the police strongly argued that they should not be subject to a duty of care in the conduct of their investigations because it would have an “undesirable chilling effect” on them in the performance of their duties. They argued that police would be inhibited in laying charges because of fear of civil action and also that their resources would end up being diverted to defend their investigations instead of fighting crime.

The five presiding judges of the Ontario Court of Appeal were not persuaded noting that the chilling effect had not been observed in other professions that were likewise subject to a duty of care in the performance of their duties. For example, it was remarked that “surgeons had not turned off the light over the operating table because they owed a duty of care to their patients”.

The five judges also saw no reason to treat suspects differently from victims (as in the case of Jane Doe) for whom the law already recognizes that a duty of care is owed by police in the performance of their duties. The court emphasized the importance of striking a balance between the obligation of police to investigate a complaint and the need to protect an individual from arbitrariness and abuse of power, particularly where there is no alternative remedy for the loss suffered. The existence of a police complaints process that can result in disciplinary action for an officer was not seen by the court as sufficient to adequately compensate an individual for losses arising from a wrongful prosecution and conviction.

Despite recognizing that the police owed Mr. Hill a duty of care in investigating the robberies of which he was ultimately acquitted, the Ontario Court of Appeal rejected his claim that the defendant police officers and Police Services Board had been negligent in their investigation. The defendants for their part objected to the court’s affirmation of the tort of negligent investigation by police and have filed an appeal to the Supreme Court of Canada.