Name of Case: Hill v. Hamilton-Wentworth Regional Police Services Board

Supreme Court Panel: Chief Justice Beverley McLachlin, Justices Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish and Rosalie Abella (concurring); Justices Michel Bastarache, Louise Charron and Marshall Rothstein (concurring on appeal but dissenting on cross-appeal)

Court appealed from and date of judgment: Judgment of the Ontario Court of Appeal dated September 26, 2005

Facts: In the winter of 1994-95, Hamilton police investigated ten bank robberies that they concluded were by the same person. Based on eyewitness descriptions, Jason Hill became a suspect. The police released his picture to the media, and conducted a photo lineup consisting of Hill, an Aboriginal Canadian, and 11 Caucasian men who resembled him.

After the tenth robbery on January 25, 1995, two bank tellers were interviewed together and identified Hill as the robber based on a newspaper photograph of him that was placed on their desks. Hill was arrested and charged with all ten robberies on January 27, 1995. However, the police received tips implicating someone else, and the robberies continued while Hill was in custody. All but one of the charges were withdrawn before trial. Hill was found guilty of the January 25 robbery in March 1996. He appealed, and ultimately was acquitted in December 1999, after spending more than 20 months in custody over a period of five years.

Case History: Hill sued the Hamilton-Wentworth Regional Police Services Board and several individual officers on grounds that included negligence. A judge dismissed Hill's claim in 2003, holding that the police did not breach the standard of care of a reasonable police officer in like circumstances.

At the Ontario Court of Appeal, a majority of the Court upheld the trial decision, on the basis that the police investigation was not negligent, while a minority would have allowed Hill's appeal and found negligence on the part of the police (see Lancaster's Police Employment Law News, November/December, 2005). However, the Court unanimously agreed that police boards and officers may be sued for negligent investigation.

Hill appealed to the Supreme Court of Canada. The Hamilton Police cross-appealed.

Issue(s): The issues on appeal to the Supreme Court of Canada included whether, as Hill argued, the Court of Appeal erred in finding that the police investigation leading to Hill's arrest and prosecution was not negligent, and whether, as the police argued, the Court erred in ruling that there was a tort of negligent investigation in Canadian law.

Supreme Court's decision: The appeal was dismissed (9-0). The cross-appeal was dismissed (6-3).

Reasons: The majority of the Supreme Court upheld the Court of Appeal's ruling that, while the police officers investigating Hill did not act negligently, people charged with crimes of which they are ultimately acquitted may sue the police for "negligent investigation."

Majority

Delivering the majority judgment, Chief Justice Beverley McLachlin applied the test set out in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.) for establishing a duty of care based on the foreseeability of harm and the parties' proximity. The Chief Justice held that the officer-suspect relationship easily met the requirement of reasonable foreseeability. Factors satisfying the requirement of proximity included the "close and direct" relationship between the police and a suspect under investigation and the interests engaged by the relationship. A suspect had "a critical personal interest in the conduct of the investigation," as "his freedom, his reputation and how he may spend a good portion of his life" were at stake.

McLachlin ruled that there were no policy considerations warranting the negation or limitation of a duty of care. While police made decisions relating to whether a suspect should stand trial, they could not be said to exercise a "quasi-judicial" function equivalent to that of prosecutors, as they were "not required to evaluate evidence according to legal standards or to make legal judgments." Nor was the exercise of discretion by police sufficient reason to deny a duty of care, as police were much like other professionals such as doctors and lawyers in this respect: "Professionals are permitted to exercise discretion. What they are not permitted to do is to exercise their discretion unreasonably."

The Chief Justice rejected the idea that recognizing a duty of care in tort would have a chilling effect on the conduct of investigations. In McLachlin's opinion, the duty of care required only "that the police act reasonably in the circumstances. Police officers can investigate on whatever basis and in whatever circumstances they choose, provided they act reasonably." McLachlin also noted that "many police officers ... are indemnified from personal civil liability in the course of exercising their professional duties, reducing the prospect that their fear of civil liability will chill crime prevention."

Turning to the standard of care, McLachlin agreed with the Court of Appeal that the appropriate standard was that of the reasonable police officer in like circumstances. Such a standard would incorporate the principle from professional negligence that a person with special skills and experience must meet the standards held by those with reasonable skill and experience in the profession in question. Further, while the likelihood of negligent investigation causing harm to suspects was significant and the "gravity of the potential harm" was serious, the "cost of preventing the injury" was "not undue." The standard of care could be met "by living up to accepted standards of professional conduct to the extent that it is reasonable to expect in given circumstances," the Chief Justice declared.

Applying the standard of care to the facts, McLachlin upheld the Court of Appeal's conclusion that the police conduct in the present case was not negligent. While actions such as the interviewing of two witnesses together were "not good police practices, judged by today's standards," police practices had evolved since 1995, and there was no evidence "that a reasonable officer in 1995 would not have followed similar practices in similar circumstances." The photo lineup "was not ideal" in light of "persisting problems with institutional bias against minorities in the criminal justice system, including aboriginal persons like Mr. Hill," but it was not "structurally biased" as at least some of the foils in the lineup had similar skin tones and facial features to Hill, as did the actual perpetrator of the robberies.

The Chief Justice ruled that the police were not negligent in their decision not to reinvestigate the case in light of new evidence around the time of Hill's arrest. The police's duty to reinvestigate a file varied depending on the facts, and in the present case involved a high degree of discretion. Summarizing what she saw as the circumstances at the time, McLachlin stated that "awareness of the danger of wrongful convictions was less acute than it is today. There was credible evidence supporting the charge. The matter was in the hands of the Crown prosecutors, who had assumed responsibility for the file."

Minority

Madam Justice Louise Charron and two other justices would have allowed the police's cross-appeal. Charron wrote the dissenting reasons, asserting that the courts should not recognize a tort of negligent investigation. While in Charron's opinion every member of society had an interest in not being targeted by a police investigation, she noted that the police had a duty to enforce the criminal law, which often required them to make decisions adversely affecting the rights and interests of citizens. It was "neither fair nor just to the individual police officers, nor in the interest of society generally, to impose on police officers a duty that brings in its wake a set of conflicting duties," Charron concluded. Charron raised the concern that, if a private duty of care to a suspect was recognized, the police's discretionary power not to investigate an offence further "could be exercised, not to advance the public interest as it should be, but out of a fear of civil liability."

To Charron, the private nature of the tort action “necessarily narrow[ed] the focus of the criminal investigation to the individual rights of the parties," making it "almost inevitable that courts lose sight of the broader public interests at stake." Charron was of the view that, unlike the existing torts of false arrest, false imprisonment, malicious prosecution and misfeasance in public office, the tort of negligent investigation did not account for "the limited role of the police officer in the overall criminal process." Asking whether it was "fair to saddle the police with the entire cost when responsibility for wrongful convictions has been attributed to all players in the justice system," few of whom were exposed to liability, Charron concluded that "the new tort of negligent investigation would effectively subsume all the existing torts and risk upsetting the necessary balance between the competing interests at play."

Date of the Supreme Court's decision: October 4, 2007

Lancaster Reference: For analysis of the Supreme Court of Canada’s decision, see Lancaster’s Police Employment Law E-Bulletin, January 23, 2008, Issue No. 18.