Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 SCR 129
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SUPREME COURT OF CANADA
Citation: Hill v. Hamilton‑Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, 2007 SCC 41 |
Date: 20071004 Docket: 31227 |
Between:
Jason George Hill
Appellant / Respondent on cross‑appeal
and
Hamilton‑Wentworth Regional Police Services Board,
Jack Loft, Andrea McLaughlin, Joseph Stewart, Ian Matthews
and Terry Hill
Respondents / Appellants on cross‑appeal
‑ and ‑
Attorney General of Canada, Attorney General
of Ontario, Aboriginal Legal Services of Toronto Inc.,
Association in Defence of the Wrongly Convicted,
Canadian Association of Chiefs of Police, Criminal
Lawyers’ Association (Ontario), Canadian Civil
Liberties Association, Canadian Police Association
and Police Association of Ontario
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment: (paras. 1 to 106)
Dissenting Reasons on Cross-Appeal: (paras. 107 to 188)
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McLachlin C.J. (Binnie, LeBel, Deschamps, Fish and Abella JJ. concurring)
Charron J. (Bastarache and Rothstein JJ. concurring) |
______________________________
Hill v. Hamilton‑Wentworth Police Services Board, [2007] 3 S.C.R. 129, 2007 SCC 41
Jason George Hill Appellant/Respondent on cross‑appeal
v.
Hamilton‑Wentworth Regional Police
Services Board, Jack Loft,
Andrea McLaughlin, Joseph Stewart,
Ian Matthews and Terry Hill Respondents/Appellants on cross‑appeal
and
Attorney General of Canada, Attorney General
of Ontario, Aboriginal Legal Services of Toronto Inc.,
Association in Defence of the Wrongly Convicted,
Canadian Association of Chiefs of Police, Criminal
Lawyers’ Association (Ontario), Canadian Civil
Liberties Association, Canadian Police Association
and Police Association of Ontario Interveners
Indexed as: Hill v. Hamilton‑Wentworth Regional Police Services Board
Neutral citation: 2007 SCC 41.
File No.: 31227.
2006: November 10; 2007: October 4.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Torts — Negligence — Duty of care — Police investigation — Whether police owe duty of care to suspects in criminal investigations — If so, standard of care required by police investigating a suspect — Whether police officers’ conduct in investigating suspect was negligent.
Police — Investigation — Negligence — Whether Canadian law recognizes tort of negligent investigation.
H was investigated by the police, arrested, tried, wrongfully convicted, and ultimately acquitted after spending more than 20 months in jail for a crime he did not commit. Police officers suspected that H had committed 10 robberies. The evidence against H included a tip, a police officer’s photo identification of H, eyewitness identifications, a potential sighting of H near the site of one of the robberies, and witness statements that the robber was aboriginal. During their investigation, the police released H’s photo to the media. They also asked witnesses to identify the robber from a photo lineup consisting of H, who is an aboriginal person, and 11 similar‑looking Caucasian foils. The police, however, also had information that two Hispanic men, one of whom looks like H, were the robbers. Two similar robberies occurred while H was in custody. H was charged with 10 counts of robbery but 9 charges were withdrawn before trial. Trial proceeded on the remaining charge because two eyewitnesses remained steadfast in their identifications of H. H was found guilty of robbery. He appealed and a new trial was ordered. H was acquitted at the second trial and brought a civil action that included a claim in negligence against the police based on the conduct of their investigation. The trial judge dismissed the claim in negligence and H appealed. The Court of Appeal unanimously recognized the tort of negligent investigation, however a majority of the court held that the police were not negligent in their investigation. In this Court, H appealed from the finding that the police were not negligent. The respondents cross‑appealed from the finding that there is a tort of negligent investigation.
Held (Bastarache, Charron and Rothstein JJ. dissenting on the cross‑appeal): The appeal and the cross‑appeal should be dismissed.
Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ.: The police are not immune from liability under the law of negligence and the tort of negligent investigation exists in Canada. Police officers owe a duty of care to suspects. 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. In this case, the police officers’ conduct, considered in light of police practices at the time, meets the standard of a reasonable officer in similar circumstances and H’s claim in negligence is not made out. [3] [74] [77]
A person owes a duty of care to another person if the relationship between the two discloses sufficient foreseeability and proximity to establish a prima facie duty of care. In the very particular relationship between the police and a suspect under investigation, reasonable foreseeability is clearly made out because a negligent investigation may cause harm to the suspect. Establishing proximity generally involves examining factors such as the parties’ expectations, representations, reliance and property or other interests. There is sufficient proximity between police officers and a particularized suspect under investigation to recognize a prima facie duty of care. The relationship is clearly personal, close and direct. 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 tort is consistent with the values of the Canadian Charter of Rights and Freedoms and fosters the public’s interest in responding to failures of the justice system. [21] [24‑25] [31‑39]
No compelling policy reasons negate the duty of care. Investigating suspects does not require police officers to make quasi‑judicial decisions as to legal guilt or innocence or to evaluate evidence according to legal standards. The discretion inherent in police work is not relevant to whether a duty of care arises, although it is relevant to the standard of care owed to a suspect. Police officers are not unlike other professionals who exercise levels of discretion in their work but who are subject to a duty of care. Recognizing a duty of care will not raise the reasonable and probable grounds standard required for certain police conduct such as arrest, prosecution, search and seizure. 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. The burden of proof on a plaintiff and a defendant’s right of appeal provide safeguards against any risk that a plaintiff acquitted of a crime, but in fact guilty of the crime, may recover against an officer for negligent investigation. [50‑51] [53] [55] [61‑65]
The standard of care of a reasonable police officer in similar circumstances should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Police officers may make minor errors or errors in judgment without breaching the standard. This standard is flexible, covers all aspects of investigatory police work, and is reinforced by the nature and importance of police investigations. [68‑73]
To establish a cause of action for negligent police investigation, the plaintiff must show that he or she suffered compensable damage and a causal connection to a breach of the standard of care owed to him or her. Lawful pains and penalties imposed on a guilty person do not constitute compensable loss. The limitation period for negligent investigation begins to run when the cause of action is complete and the harmful consequences result. This occurs when it is clear that the suspect has suffered compensable harm. In this case, the limitation period did not start to run until H was acquitted of all charges of robbery. [90‑98]
The respondents’ conduct in relation to H, considered in light of police practices at the time, meets the standard of a reasonable officer in similar circumstances. The publication of H’s photo, incomplete records of witness interviews, interviewing two witnesses together, and failing to blind‑test photos are not good practices by today’s standards but the evidence does not establish that a reasonable officer at the time would not have followed similar practices or that H would not have been charged and convicted if these incidents had not occurred. The trial judge accepted expert evidence that there were no rules governing photo lineups and a great deal of variation of practice at the time. It was established that the photo lineup’s racial composition did not lead to unfairness. After H was arrested, credible evidence continued to support the charge against H and Crown prosecutors had assumed responsibility for the file. It has not been established that a reasonable police officer in either a supporting or a lead investigator’s role, in the circumstances, would have intervened to halt the case. [74] [78‑81] [86] [88]
Per Bastarache, Charron and Rothstein JJ. (dissenting on the cross-appeal): The tort of negligent investigation should not be recognized in Canada. 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. This alone defeats the claim that there is a relationship of proximity between the parties sufficient to give rise to a prima facie duty of care. Even if a prima facie duty of care were found to exist, that duty should be negatived on residual policy grounds. The recognition of this tort would have significant consequences for other legal obligations and would detrimentally affect the legal system and society more generally. In light of the conclusion that the tort of negligent investigation is not available at common law, the action was properly dismissed by the courts below. [112‑113] [187]
There is no question that the police owe a duty to the public to investigate crime. Determining whether this translates into a private duty owed to suspects under investigation requires examining reasonable foreseeability and proximity. The reasonable foreseeability requirement poses no barrier to finding a duty of care. A police investigator can readily foresee that a targeted suspect could be harmed as a result of the negligent conduct of an investigation. With respect to proximity, the analysis can usefully start with a search for analogous categories. This case does not fall directly or by analogy within any category of cases in which a duty of care has previously been recognized. The analogy made to victims of crime by the Court of Appeal does not hold. There is a crucial distinction between victims and suspects. Whereas a victim’s interest is generally reconcilable with a police officer’s duty to investigate crime, a suspect will always suffer some harm from being targeted in an investigation, even if ultimately exonerated. A suspect’s interest in being left alone by the state is at odds with the fulfilment of the police officer’s public duty to investigate crime. Outside Ontario, no court of common law jurisdiction has found a private law duty of care owed by police to suspects under investigation and in cases where the issue has arisen, courts have declined to recognize such a duty. Cases based on the Civil Code of Québec provide little assistance in deciding the present appeal. [116‑119] [131] [135] [186]
The question at the next stage of the inquiry on proximity is whether the relationship is such as to make the imposition of legal liability for negligence appropriate. Although the relationship between a police officer and a suspect is sufficiently close and direct, other factors engaged by the relationship do not give rise to proximity. The critical factor which militates against recognizing a duty of care is the conflicting interests engaged by the relationship. Enforcing the criminal law is one of the most important aspects of maintaining law and order in a free society. Fulfilling this function often requires police officers to make decisions that might adversely affect the rights and interests of citizens. The fulfilment of this public duty necessarily collides with the individual’s interest to be left alone by the state. The imposition on the police of a private duty to take reasonable care not to harm the individual would therefore inevitably pull the police away from targeting that individual as a suspect. The overly cautious approach that may result from the imposition of conflicting duties would seriously undermine society’s interest in having the police investigate crime and apprehend offenders. This opposition of interests has been recognized in other countries as a sufficient reason not to impose a duty of care. [136‑140] [142] [147]
Residual policy considerations also militate against the recognition of such a duty. The potential imposition of civil liability gives rise to a significant concern about the improper exercise of the police discretionary power to not engage the criminal process despite the existence of reasonable and probable grounds. Police discretion must be exercised solely to advance the public interest, not out of a fear of civil liability. The proposed tort also raises difficult questions of public policy with respect to identifying the wrongfully convicted for the purpose of compensation. A verdict of not guilty is not a factual finding of innocence. A choice would have to be made whether compensation is available to all who are acquitted or reserved to those who are factually innocent. The issue is most pertinent where, as here, the alleged wrong is the conduct of a substandard police investigation. 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. Whichever approach is adopted, there may be unforeseen and undesirable ramifications in the criminal context. These considerations provide reason to be cautious about imposing on police officers a novel duty of care towards suspects. [148] [151] [156] [160‑161] [167]
Furthermore, the ordinary negligence standard, even if linked to the reasonable and probable grounds standard, cannot easily co‑exist with governing criminal standards. If the civil standard for liability is to be tailored to complement governing criminal standards, the presence of reasonable and probable grounds for laying a charge must constitute a bar to any civil liability. It cannot be sufficient to show that investigative techniques used by the police were substandard. Rather, it must be established that the identification process was so flawed that it destroyed the reasonable and probable grounds for laying the charge. While the Court of Appeal agreed that the standard of care owed to suspects must be linked to the reasonable and probable grounds standard, none of the judges considered whether the charges were nonetheless laid on the basis of reasonable and probable grounds in their negligence analysis. The private nature of the tort of negligent investigation narrows the focus to the individual rights of the parties and loses sight of the broader public interests at stake. By contrast to the proposed action in negligence, the existing torts of false arrest, false imprisonment, malicious prosecution and misfeasance in public office do not give rise to these policy concerns. The recognition that the civil tort system is not the appropriate vehicle to provide compensation for the wrongfully convicted should not, however, be viewed as undermining the importance of achieving that goal. [169] [174‑175] [180-181] [187]
Cases Cited
By McLachlin C.J.
Applied: Anns v. Merton London Borough Council, [1978] A.C. 728; Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79; Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562; discussed: Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18; referred to: Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69; Canadian National Railway Co. v. Norsk Pacific Steamship Co., 1992 CanLII 105 (SCC), [1992] 1 S.C.R. 1021; Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 1998 CanLII 14826 (ON CTGD), 160 D.L.R. (4th) 697; Chartier v. Attorney General of Quebec, 1979 CanLII 17 (SCC), [1979] 2 S.C.R. 474; Brooks v. Commissioner of Police of the Metropolis, [2005] 1 W.L.R. 1495, [2005] UKHL 24; Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; Rufo v. Simpson, 103 Cal.Rptr.2d 492 (2001); Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201; R. v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 S.C.R. 205; Jauvin v. Procureur général du Québec, 2003 CanLII 32249 (QC CA), [2004] R.R.A. 37; Lacombe v. André, 2003 CanLII 47946 (QC CA), [2003] R.J.Q. 720; Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351; Folland v. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26.
By Charron J. (dissenting on cross‑appeal)
Anns v. Merton London Borough Council, [1978] A.C. 728; Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79; Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80; Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, 2003 SCC 69; Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18; Beckstead v. Ottawa (City) Chief of Police (1997), 1997 CanLII 1583 (ON CA), 37 O.R. (3d) 62; Reynen v. Canada (1993), 70 F.T.R. 158; McGillivary v. New Brunswick (1994), 1994 CanLII 4465 (NB CA), 149 N.B.R. (2d) 311; Al’s Steak House & Tavern Inc. v. Deloitte & Touche (1994), 1994 CanLII 7326 (ON CTGD), 20 O.R. (3d) 673; Collie Woollen Mills Ltd. v. Canada (1996), 1996 CanLII 21415 (FC), 107 F.T.R. 93; Stevens v. Fredericton (City) (1999), 1999 CanLII 32792 (NB QB), 212 N.B.R. (2d) 264; Dix v. Canada (Attorney General) (2002), 315 A.R. 1, 2002 ABQB 580; Kleysen v. Canada (Attorney General) (2001), 159 Man. R. (2d) 17, 2001 MBQB 205; Avery v. Canada (Attorney General), [2004] N.B.J. No. 391 (QL), 2004 NBQB 372; A.A.D. v. Tanner (2004), 188 Man. R. (2d) 15, 2004 MBQB 213; Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238; Alexandrou v. Oxford, [1993] 4 All E.R. 328; Osman v. Ferguson, [1993] 4 All E.R. 344; Cowan v. Chief Constable of the Avon and Somerset Constabulary, [2001] E.W.J. No. 5088 (QL), [2001] EWCA Civ 1699; Brooks v. Commissioner of Police of the Metropolis, [2005] 1 W.L.R. 1495, [2005] UKHL 24; Calveley v. Chief Constable of the Merseyside Police, [1989] 1 All E.R. 1025; Emanuele v. Hedley (1997), 137 F.L.R. 339; Courtney v. State of Tasmania, [2000] TASSC 83; Wilson v. State of New South Wales (2001), 53 N.S.W.L.R. 407, [2001] NSWSC 869; Tame v. New South Wales (2002), 191 A.L.R. 449, [2002] HCA 35; Gruber v. Backhouse (2003), 190 F.L.R. 122, [2003] ACTSC 18; Duke v. State of New South Wales, [2005] NSWSC 632; Gregory v. Gollan, [2006] NZHC 426; Sullivan v. Moody (2001), 183 A.L.R. 404, [2001] HCA 59; Cran v. State of New South Wales (2004), 62 N.S.W.L.R. 95, [2004] NSWCA 92, leave to appeal denied, [2005] HCA Trans 21; Simpson v. Attorney General, [1994] 3 N.Z.L.R. 667; Gregoire v. Biddle, 177 F.2d 579 (1949); Thompson v. Olson, 798 F.2d 552 (1986); Kompare v. Stein, 801 F.2d 883 (1986); Kelly v. Curtis, 21 F.3d 1544 (1994); Orsatti v. New Jersey State Police, 71 F.3d 480 (1995); Schertz v. Waupaca County, 875 F.2d 578 (1989); Castle Rock v. Gonzales, 125 S.Ct. 2796 (2005); Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 1998 CanLII 14826 (ON CTGD), 160 D.L.R. (4th) 697; Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 1990 CanLII 6611 (ON HCJ), 72 D.L.R. (4th) 580; Dorset Yacht Co. v. Home Office, [1970] A.C. 1004; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; R. v. Beaudry, [2007] 1 S.C.R. 190, 2007 SCC 5; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241; Lacombe v. André, 2003 CanLII 47946 (QC CA), [2003] R.J.Q. 720; Jauvin v. Procureur général du Québec, 2003 CanLII 32249 (QC CA), [2004] R.R.A. 37.
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Civil Code of Québec, S.Q. 1991, c. 64, art. 1457.
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APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Goudge, Feldman, MacPherson, MacFarland and LaForme JJ.A.) (2005), 2005 CanLII 34230 (ON CA), 76 O.R. (3d) 481, 259 D.L.R. (4th) 676, 202 O.A.C. 310, 36 C.C.L.T. (3d) 105, 33 C.R. (6th) 269, [2005] O.J. No. 4045 (QL), affirming a decision of Marshall J. (2003), 2003 CanLII 46543 (ON SC), 66 O.R. (3d) 746, [2003] O.J. No. 3487 (QL). Appeal dismissed. Cross‑appeal dismissed, Bastarache, Charron and Rothstein JJ. dissenting.
Sean Dewart, Louis Sokolov and Charlene Wiseman, for the appellant/respondent on cross‑appeal.
David G. Boghosian and Courtney Raphael, for the respondents/appellants on cross‑appeal.
Anne M. Turley, for the intervener the Attorney General of Canada.
M. Michele Smith and Heather C. Mackay, for the intervener the Attorney General of Ontario.
Jonathan Rudin and Kimberly R. Murray, for the intervener the Aboriginal Legal Services of Toronto Inc.
Julian N. Falconer and Sunil S. Mathai, for the intervener the Association in Defence of the Wrongly Convicted.
Leona K. Tesar and Gregory R. Preston, for the intervener the Canadian Association of Chiefs of Police.
Mark J. Sandler and Joseph Di Luca, for the intervener the Criminal Lawyers’ Association (Ontario).
Bradley E. Berg and Allison A. Thornton, for the intervener the Canadian Civil Liberties Association.
Ian Roland and Emily Lawrence, for the interveners the Canadian Police Association and the Police Association of Ontario.
The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ. was delivered by
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