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Globe and Mail Update
October 4, 2007 at 10:53 AM EDT
Police investigators can be sued if they conduct an investigation negligently, the Supreme Court of Canada said Thursday in a ruling that will send shudders through police ranks.
”Police officers owe a duty of care to suspects,” Chief Justice Beverley McLachlin said for a 6-3 majority. ”Their conduct during an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted.
”Police officers may be accountable for harm resulting to a suspect if they fail to meet this standard,” she said, writing on behalf of Mr. Justice Ian Binnie, Mr. Justice Louis LeBel, Madam Justice Marie Deschamps, Mr. Justice Morris Fish and Madam Justice Rosalie Abella.
The court nonetheless dealt a personal loss to a Hamilton man – Jason George Hill – who had argued that he was negligently arrested, resulting in his spending 20 months in jail for a string of robberies that he did not commit.
Mr. Hill was ultimately exonerated when the real robber was found and convicted. He sued investigators, specifically citing an inept police lineup procedure, but the court ruled against his suit.
Mr. Hill's lawyers – Sean Dewart and Louis Sokolov – were exultant about the legal implications of Thursday's ruling but disappointed that Mr. Hill's lawsuit was thrown out.
"This is a bitter day for Jason Hill," Mr. Sokolov said. "The court acknowledges that he was wronged by the justice system, and yet excused the police from liability because their conduct in this case met the very low standards that prevailed more than a decade ago.
"On a happier note, this is a very good day for police accountability in Canada. The Supreme Court stated in resounding language that police are no different from the rest of us, and can be sued if they do their jobs negligently."
Mr. Dewart said that a couple of provinces – notably, Quebec – have permitted lawsuits for negligent investigation for several years. Others, such as Alberta and New Brunswick, have been adamantly opposed to allowing them, lest they compromise police investigations.
Mr. Dewart said that this is an empty argument. Police are far from the only professionals who have to meet an acceptable set of standards, he said, yet the others do not cease doing their jobs for fear of litigation.
"Is there a slippery slope for neurosurgeons, who don't do surgery because they might be sued?" he said.
The lawyers said that as a result of the decision, municipalities and their insurers will likely begin to press for higher police training standards, which will benefit society as a whole.
Notwithstanding Mr. Hill's loss, the ruling constitutes a major victory for the wrongful conviction movement. The court majority said that police owe a duty of care to the people they investigate, given the consequences that can result from faulty techniques.
”The relationship is clearly personal, close and direct,” the majority said. ”A suspect has a critical personal interest in the conduct of an investigation. No other tort provides an adequate remedy for negligent police investigations.”
The dissenting judges took issue on this point, insisting that opening police up to civil liability for their investigations is both unfair and harmful to the public interest.
”A private duty of care owed by the police to suspects would necessarily conflict with an officer's overarching public duty to investigate crime and apprehend offenders,” Madam Justice Louise Charron wrote in dissent. ”The recognition of this tort would have significant consequences for other legal obligations and would detrimentally affect the legal system and society more generally.”
She said that individuals who are acquitted may actually have committed the crime but that police and prosecutors simply could not prove it beyond a reasonable doubt.
”A person who committed an offence may benefit from a botched-up investigation because a negligent investigation will often be the effective cause of an acquittal,” Judge Charron wrote on behalf of Mr. Justice Michel Bastarache and Mr. Justice Marshall Rothstein. ”Whichever approach is adopted, there may be unforeseen and undesirable ramifications in the criminal context.
The majority, however, scoffed at the idea that recognizing a tort of negligent investigation would make police apprehensive about conducting a full investigation or charging suspects without an airtight case against them.
”The record does not establish that recognizing the tort will change the behaviour of the police, cause officers to become unduly defensive or lead to a flood of litigation,” Chief Justice McLachlin said. ”Police officers may make minor errors or errors in judgment without breaching the standard.”
Hamilton police believed they had ended a spate of daring robberies when they clamped handcuffs on Mr. Hill, the man they believed to be the Plastic Bag Bandit.
Having had Mr. Hill identified from photo lineups by so many witnesses that they felt they could make the charges stick, investigators issues a press releasing boasting of having ”bagged” the Plastic Bag Bandit.
The robberies, however, continued.
Worse still, a man who would eventually turn out to be the real Plastic Bag Bandit – Francisco Sotomayer – emerged after a tipster contacted the police. It took two more years before all the charges against Mr. Hill collapsed, but he was ultimately exonerated.
After two years behind bars and two trials, Mr. Hill sued the police for conducting a negligent investigation. His lawyers allege that Mr. Hill had been flattened by a legal bulldozer powered by evidence of the most thin and unreliable variety.
Mr. Hill's lawsuit was thrown out at trial when the judge ruled that police had used valid investigative methods and made decisions that were justifiable. The Ontario Court of Appeal upheld the existence of investigative negligence as a civil cause of action, but voted 3-2 to uphold the trial ruling against Mr. Hill.
Mr. Sokolov and Mr. Dewart claim that the ruling effectively gutted the usefulness of investigative negligence as a civil cause of action.
Police lawyers – backed by the federal Crown – argued in the Supreme Court hearing that police cannot make tough investigative judgment calls if they can easily be found civilly liable for their errors. They warned the court not to throw open the floodgates of litigation to everyone who ends up being acquitted of a crime.
”Studies have demonstrated that fear of lawsuits on the part of police renders them more timid in carrying out their duties,” a police legal brief said.
Mr. Dewart and Mr. Sokolov countered that police must be held accountable when, blinded by tunnel vision or ambition, they use discredited or unreliable investigative techniques.
”It is not the case that the defendants merely overlooked something, but rather that they obstinately blinkered themselves to a large number of things,” they said in a brief to the Supreme Court.
The robberies that spawned the case came in quick succession in late 1994 and early 1995. As the case against Mr. Sotomayer strengthened, the charges against Mr. Hill were dropped one by one.
Besides suing for investigative negligence, Mr. Hill included a far more conventional cause of action – malicious prosecution, which requires the plaintiff to prove actual malice by investigators. An investigative-negligence suit, in contrast, could succeed simply by showing that police were reckless, employed bad practices or blinded themselves to exculpatory evidence.
Mr. Dewart and Mr. Sokolov targeted the photo lineups in particular, noting that the only person depicted who was not Caucasian was Mr. Hill, an aboriginal. Coupled with widespread publicity stating that the bandit was of mixed race or Hispanic, they said, there was a strong chance of Mr. Hill's being erroneously picked out by eyewitnesses.
They also argued that a lead officer in the case ignored information that pointed toward Mr. Sotomayer as the real bandit.
