SOME PROGRESS IN CANADA, MAYBE

An Ontario court rules that the police can be sued for negligence but say that a blatant set-up of an innocent man was not negligent

Ontario's Court of Appeal has ruled that residents of the province can sue the police over negligent investigations, adding that this is not likely to open a floodgate of suits and paralyze police work. The ruling came as part of a decision released Monday, where the court said Hamilton's municipal police were not negligent when they arrested an aboriginal man for 10 robberies, put his picture in a photo lineup along with 11 non-aboriginals, and then found that someone else committed most of the crimes.

Three of the five judges on the appeal court panel upheld a lower court decision that said the police did their work using "appropriate standards." However, two judges hearing the case disagreed, and in a dissenting judgment said the treatment of Jason Hill was "another wrongful conviction of an aboriginal person in Canada, who served more than 20 months in prison for a crime he did not commit."

In rejecting Mr. Hill's attempt to get compensation from the police, the court opened up the possibility for many others to seek redress. The appeal court said it is completely reasonable to let people sue for misconduct when it is "anchored in very poor performance of important police duties." The court cited the case of Jane Doe, who was raped in Toronto in 1986 when police failed to warn women in the neighbourhood that a rapist was on the loose. She sued the police department and won a large settlement. Others should be able to take similar action, the judges said. "Should Canadian law not provide a cause of action in negligence to people like Ms. Doe . . .?" the court said in its ruling. "The rights of suspects and victims need to be recognized and carefully balanced with the important duties of the police." Currently, only Quebec and Ontario allow negligent-investigation suits against police.

Sean Dewart, Mr. Hill's lawyer, said that while the appeal court ruling was "extremely disappointing" for his client, the decision on the broader issue is very important for everyone who is concerned about miscarriage of justice. Now, the Court of Appeal has made it clear "you don't have to prove malice in a police investigation, and that negligence [alone] can result in a lawsuit," Mr. Dewart said. While Ontario is "blessed" with highly professional police, "mistakes are made, and there are sloppy investigations, and they cause extreme hardship and pain," he said.

David Boghosian, the lawyer who acted for the Hamilton police, said he was surprised the judges rejected the views of the British House of Lords -- the highest level of appeal in that country -- that negligence suits can cause a "chill" in police work. He also predicted that the issue will eventually go to the Supreme Court of Canada. Mr. Boghosian said there could be an "explosion" of suits as a result of the decision. Mr. Dewart disagreed: "You hear that from doctors and lawyers and anyone who doesn't want to answer in court for their conduct."

Mr. Hill's own battle with the Hamilton police began early in 1996, when he was pegged as a suspect in a series of 10 bank robberies in the city. The police prepared a "photo lineup" -- a series of a dozen pictures that included one of Mr. Hill -- to show witnesses. The other 11 photos were of Caucasian men, although they resembled Mr. Hill. After Mr. Hill was arrested, new evidence made it clear there were other suspects, and most of the charges against him were dropped. He was found guilty of one robbery and sentenced to three years in jail.

Mr. Hill appealed and was eventually acquitted. He then sued Hamilton police, including several individual police officers, claiming negligence and malicious prosecution. He lost at the Superior Court, and the appeal court has agreed with that decision. There was no evidence the "photo lineup identification process was an unreasonable police practice," wrote Justice James MacPherson for the three majority judges: Justice Stephen Goudge and Justice Jean MacFarland were the other two. Mr. Boghosian said the appeal court ruling makes sense because the fact that Mr. Hill was aboriginal was not a factor in the selection process. "Mr. Hill blended in nicely with the other people that were picked" in the photo lineup, he said.

The two dissenting judges -- Justice Kathryn Feldman and Justice Harry Laforme, who is of aboriginal descent -- take issue with this view. "A photo lineup where the target suspect is the only aboriginal person among a group of Caucasians, even where the people can be viewed generally as similar in appearance, perpetuates the appearance of unfairness," the judges wrote. Furthermore, "we believe there is a clear causal link between the photo lineup and Mr. Hill's wrongful conviction," they said.

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