Supreme Court of Canada: Police May be Sued for Negligent Investigation

The Supreme Court of Canada has held that Canadian police are not immune from civil claims for damages.

In a case released today, the Court decided that, in limited circumstances, officers and forces may be liable for damages if negligence in investigation of a crime leads to wrongful arrest and detention.

The Court clearly did not impose any high or impossible standard of perfection upon investigators. Rather, it stated that the law of negligence requires only that police conducting an investigation act reasonably. Damages may be considered only where investigating officers have failed to meet that modest test of reasonableness.

In Hill v. Hamilton-Wentworth Regional Police Services Board, Chief Justice McLachlan, for the majority, stated:

“The police must investigate crime. That is their duty. In the vast majority of cases, they carry out this duty with diligence and care. Occasionally, however, mistakes are made. These mistakes may have drastic consequences. An innocent suspect may be investigated, arrested and imprisoned because of negligence in the course of a police investigation…

Can the police be held liable if their conduct during the course of an investigation falls below an acceptable standard and harm to a suspect results? If so, what standard should be used to assess the conduct of the police? More generally, is police conduct during the course of an investigation or arrest subject to scrutiny under the law of negligence at all, or should police be immune on public policy grounds from liability under the law of negligence? These are the questions at stake on this appeal.
I conclude that police are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. The tort of negligent investigation exists in Canada, and the trial court and Court of Appeal were correct to consider the appellant’s action on this basis. The law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.

…It has not been established that recognizing a duty of care in tort would have a chilling effect on policing, by causing police officers to take an unduly defensive approach to investigation of criminal activity. In theory, it is conceivable that police might become more careful in conducting investigations if a duty of care in tort is recognized. However, this is not necessarily a bad thing. The police officer must strike a reasonable balance between cautiousness and prudence on the one hand, and efficiency on the other. Files must be closed, life must move on, but care must also be taken…

…Recognizing sufficient proximity in the relationship between police and suspect to ground a duty of care does not open the door to indeterminate liability. Particularized suspects represent a limited category of potential claimants. The class of potential claimants is further limited by the requirement that the plaintiff establish compensable injury caused by a negligent investigation. Treatment rightfully imposed by the law does not constitute compensable injury. These considerations undermine the spectre of a glut of jailhouse lawsuits for negligent police investigation.

In the case under consideration, the Court, however, found no negligence, and determined that the officers involved had met the required standard of care in the performance of their duties.

(Via Eugene Meehan's SCC Lawletter)

- Garry J. Wise, Toronto

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