May 22nd, 2009 by Marc Huber Posted in Civil Law, Criminal Law | 2 Comments »
The Supreme Court of Canada’s recent decision in Hill v. Hamilton-Wentworth Regional Police ( 2007 SCC-41) recognized that police officers owe a duty of care to suspects and recognized a corresponding tort of negligent investigation; thereby, upholding the Court of Appeal’s unanimous decision (2005), 76 O.R. (3d) 481.
A person who is acquitted of a crime may recover against a police officer for negligent investigation. However, using a balance of probabilities test an acquitted person could be found “guilty” in a civil trial. An acquittal is not necessarily conclusive proof of innocence in a subsequent civil trial. The case law is equivocal. Of course, within a civil context, a conviction usually translates into a motion for summary judgment. The court did note that in the United States, victims may recover damages against a defendant who has been acquitted in criminal proceedings (i.e. OJ). Further, a Police Services Board and a police chief could also be named as defendants, by virtue of their vicarious liability and statutory liability.
The tort’s limitation period begins when it is clear that a suspect suffered compensable harm. A cause of action in negligence does not occur when the negligent act is committed, but rather, when the harmful causes of the negligence result. Therefore, the loss, or injury, as a result of alleged police negligence is not established until it is clear that that a suspect has been imprisoned as a result of a wrongful conviction; or, has suffered some form of compensable conduct as a result of negligent police conduct including non-penal consequences. It is important to note that the Supreme Court has made it clear that the limitation period begins after an acquittal occurs through a trial, or an appeal.
When the cause of action is complete, notice should be provided to the Crown, and the other defendants, under the Public Authorities Protection Act, R.S.O., 1990, as amended. This corresponds with the 6-month limitation period to file a complaint under the Police Services Act, R.S.O. 1990, as amended. Thus, an action must be issued within 6-months after the cause of action is complete. If the Province of Ontario is going to be a party, notice of the action’s issuance should be given 60-days before a Statement of Claim is issued under the Proceedings Against The Crown Act, R.S.O. 1990, as amended. If a demand letter is claimed seeking damages, all defendants should be notified of their liability for pre-judgment interest and post-judgment interest under the provisions of the Courts of Justice Act, R.S.O.1990, as amended. Further, such a letter ought to contain an admonition about the recovery of costs. Considering the nature of the tort, it is possible that under the right circumstances, cost recovery could occur on a full indemnity basis.
In addition to the foregoing, notice should also be provided of a claim for punitive damages. Pursuant to the Supreme Court’s Pilot Insurance decision, at an examination for discovery when such a claim is made, the examining party has the right to inquire about instances of similar conduct suffered by third parties. A court’s punitive damages award also takes into account conduct suffered by third parties, too.
If on a balance of probabilities, the compensable damage would not have occurred but for the negligence on the part of the police (even if other causes contributed to the injury unless the other contributions were so significant that the injury would have been caused anyway), then the causation requirement is met for the tort of wrongful investigation.
Of course, it is not just police conduct that is encompassed by the tort. Any administrative agency undertaking an investigation is subject to the same duty. Actually, in all likelihood, investigating officers employed with other, quasi-criminal agencies are less likely to be as rigorously trained as the police in terms of their use of investigative techniques. As a consequence, it is possible that quasi-criminal agencies and their investigating officers could become susceptible to becoming party defendants. Similarly, it is an act of negligence for a solicitor, or a physician, to undertake a negligent investigation. For example, a lawyer has an obligation to undertake a reasonable investigation before issuing a claim, or even defending a client charged with an offence. Under certain circumstances, it is conceivable that a defendant in a civil action could claim against the plaintiff’s solicitor.
The evidentiary burden is borne by the suspect\plaintiff in showing that police negligence during the course of an investigation caused harm compensable at law.
The standard of review is how a reasonable officer in similar circumstances would have acted. In other words, police officers must act as reasonably-prudent police officers. Minor errors in judgment do not breach the standard of a reasonably prudent police officer, as opposed to an unreasonable mistake breaching the standard of care. On the other hand, police conduct that is neither malicious nor deliberate, but merely fails to comply with standards of reasonableness, can cause a wrongful conviction. Exercising their duties unprofessionally, carelessly and unreasonably could also constitute grounds for a negligent investigation action. Suspects may reasonably be expected to rely on the police to conduct investigations in a competent, non-negligent manner. Being professionals, police officers are also subject to an additional requirement; namely, that they must live up to the standards possessed by persons of reasonable skill and experience in that calling. The statutory standards contained in the Police Services Act serve as non –definitive illustrations of the appropriate standard of care.
Using today’s standards, departures from acceptable police practices during the course of an investigation could include among other things: media publication of a suspect’s photograph, an incomplete record of witness interviews, interviewing two witnesses together, failing to blind-test photos put to witnesses, and a racially-skewed, or structurally-biased, lineup, or photo lineup. Although all of these circumstances occurred in Hill, the officers’ conduct were scrutinized under, 1995, standards-and not today’s standards.
Police officers are not required to make judgments about guilt, or innocence, before proceeding against a suspect. Yet, police are required to weigh evidence (but not by legal or judicial standards) to some extent during the course of an investigation. The police must investigate suspects reasonably.
Yet, the standard of care is flexible. For example, there would be different standards of care pertaining to varying aspects of police work such as; inter alia: arrest and prosecution, search and seizure, and the stopping of a motor vehicle. The only real, chilling effect on police conduct caused by the new tort is an obligation falling upon an investigator to act reasonably in the circumstances. Police officers can investigate on whatever basis and in whatever circumstances chosen-provided that they act reasonably and that the exercise of their discretion is reasonable.
Police officers do not have an unfettered discretion to investigate suspects. There is an underlying duty to conduct investigations in accordance with the law-including the restrictions imposed by the Canadian Charter of Rights and Freedoms and the Criminal Code. The duty of care afforded suspects enhances the values of liberty and due process animating the Charter and the Criminal Code. In summary, there is a salient and compelling public interest in a diligent investigation being conducted in accordance with the law.
It is reasonable for an investigation to occur in the absence of overwhelming evidence. However, when new information emerges that could be relevant to a suspect’s innocence, reasonable police conduct may require the file to be reopened and the matter reinvestigated. In particular, the court noted, “in some cases, merely examining the evidence and determining that it is not worth acting on may be enough. In others, it may be reasonable to expect the police to do more in response to newly emerging evidence. Reasonable prudence may require them to reexamine their prior theories of the case, to test the credibility of new evidence and to engage in further investigation provoked by the new evidence….The question is always what the reasonable officer in like circumstances would have done to fulfill the duty to reinvestigate and to respond to the new evidence that emerged.”
Hill suggests that an officer’s failure to intervene with the Crown and asking that it delay proceeding to trial in order to reinvestigate a case could also constitute the grounds for a wrongful investigation action, in light of societal perceptions concerning the dangers of wrongful convictions. As a result of Hill, the police must become more careful while conducting their investigations. Officers must balance the competing interests of caution and prudence against efficiency. The Court did note that investigations are not a “never-ending process extending indefinitely past the point of arrest.” Yet, the Court also observed that, “files must be closed, life must move on, but care must also be taken.”
Therefore, certain of your clients’ cases cry out for the need to take a more proactive approach for the defense by mounting an aggressive offense. The first shot across the bow needs to be a demand letter to the appropriate parties. Such letters can be sent to the officers’ residences, too. Fraud cases lend themselves particularly well to such an approach. Any relatively complicated matter involving information not considered, or perhaps interpreted improperly by the police lends itself to such an approach. In my view, such letters can simultaneously present the new evidence to be considered in combination with threatening litigation. Although officers are indemnified from personal liability through insurance coverage, acts that are ultra vires the scope of coverage, are not insured. If it is possible, the allegations should be couched in language that contemplates a characterization of ultra vires conduct, in order to enhance the letter’s impact.
Parties in litigation are permitted to undertake detailed asset and liabilities audits of each other in order to determine a party’s capacity to satisfy a judgment.
To illustrate the power and scope (shock ‘n’ awe) of discovery, contemporaneously with the delivery of the demand letters, freedom of information applications foreshadowing the extent of future disclosure requests should be sent.
As an aside, the principles associated with the tort of wrongful investigation could also apply to matters involving a pro forma, mechanical response by the police. For examine, it is common practice in sexual assault matters to only interview the victim. On a prima facie basis, such investigative practices appear to be unreasonable.
To bolster such letters’ influence, they should note that negligent policing has been acknowledged as a significant contributing factor to wrongful convictions. Even one wrongful conviction is too many-and Canada has had more than one. The police need to be reminded that the effective and responsible investigation of crime is one of their paramount duties.
Criminal defence lawyers should also consider calling or having called police witnesses who would not otherwise play a role in the proceedings for the purposes of demonstrating a negligent investigation. For example, in a domestic assault context, the police will often only interview the complainant, and ignore that the accused offered to provide his\her version of the events. Since no statement from the accused is taken, the officer is not likely to be called as a witness. However, a defence lawyer at a criminal trial may want to examine the officer on this point to build a record for subsequent civil litigation.
There will be other, similar strategic considerations which will arise on the facts of each case, and a criminal defence lawyer would be well-advised to look at each file from this perspective. Determining when to retain civil litigation counsel to send a demand letter to the police is another strategic consideration requiring an assessment of each case. In some cases, such a tactic could prevent prosecution.
