The disgraceful Jason Hill case was at least a catalyst for reform

THE CANADIAN ASSOCIATION of Chiefs of Police won support from the federal and provincial attorneys general last fall when they opposed allowing persons who are wrongfully convicted to sue police alleging that they were victims of negligent investigations. Part of their argument, which was accepted by three Supreme Court of Canada judges, was that it would open the floodgates, with countless lawsuits being launched by persons acquitted of heinous crimes.

Thankfully, that postulation was rejected by six of the nine judges. Chief Justice Beverley McLachlin said the record provided "no basis for concluding that there will be a flood of litigation against the police if a duty of care is recognized," and at one point cited the contrary example of O. J. Simpson. Cleared of murder charges by a jury that had reasonable doubt as to his guilt, he was sued civilly by the victims' families, held liable for their "wrongful death," and ordered to pay millions of dollars in damages.

The court's decision, released last Thursday, was itself an illustration of how difficult it can be to establish that police negligence, rather than what the Chief Justice described in the case at bar as "an unfortunate series of events," was responsible for a wrongful conviction.

In the case that brought the issue to Canada's top court for a first time, Jason Hill found himself charged by Hamilton- Wentworth Regional Police with a string of 10 robberies in December 1994 and January 1995 attributed to "the plastic bag robber." Acting on a Crime Stoppers tip and eyewitnesses' description of the culprit, police arrested Mr. Hill, included the aboriginal in a photo lineup with similar-looking caucasians, and ultimately charged him with 10 counts of robbery.

Although two similar robberies occurred while Mr. Hill was in custody, he was ultimately tried on a single charge where two bank tellers were the key Crown witnesses. Found guilty, he won an appeal based on errors by the trial judge, and at the second trial was found not guilty, having by then spent a total of 20 months in jail. Meanwhile, police had arrested another suspect who looked remarkably like Mr. Hill, and ultimately was found responsible for the robberies.

Only time will tell how much the new 'tort' will be used, let alone whether the plaintiffs will be successful. And we'll never know whether the likes of Guy Paul Morin and David Milgaard would have been able to use it successfully. Until now, the wrongfully convicted have had some other potential remedies, such as the torts of false arrest, false imprisonment, malicious prosecution and misfeasance in public office, but all carry a heavy burden of proof and are at least as hard to establish as medical malpractice.

In the majority judgment, Chief Justice McLachlin acknowledged that police have a duty to investigate crime and that in the vast majority of cases they carry out the 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."

The issues raised by the case were whether police may be held liable if their conduct during the course of an investigation falls below an acceptable standard and results in harm to a suspect, and if so, what standard should be used to assess the conduct of the police. "More generally," the Chief Justice wrote, "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?"

Concluding that police are not immune from liability under the Canadian law of negligence; that they 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, she agreed with the trial judge in the Hill case and the Ontario Court of Appeal that the tort of negligent investigation does indeed exist. However, she cautioned that 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."

That strikes us as appropriate, and we hope the Chief Justice is right in predicting that the only consequence of the ruling will be more careful police investigations. For instance, it should mean that when the best evidence is from eyewitnesses, police investigators should resist the temptation to concentrate the probe on a single suspect who happens to fit the description, and should look closely at any exculpatory evidence such as an alibi or inconsistent results from a photo lineup. True, the decision may make police work tougher, but it should also reduce the risk of wrongful convictions.

Chief Justice McLachlin says the police officer's task will be to "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." All the tort requires, she wrote, "is that the police act reasonably in the circumstances."

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More background

A wrongly convicted Ontario man who established a legal principle for much of Canada but failed to win damages from police is asking the province to compensate him voluntarily for his 1995 arrest and 20 months he spent in jail.

On Thursday, the Supreme Court of Canada dismissed an appeal by Jason Hill, who sued Hamilton police, claiming they acted maliciously and negligently in fingering him for a series of bank robberies.

In its 6-3 ruling, however, the court said police can be sued for negligent investigations. That ruling upholds the law already in place in Ontario and Quebec, but will mean a change for the rest of the country. "The police are not immune from liability under the law of negligence and the tort of negligent investigation exists in Canada," Chief Justice Beverley McLachlin wrote in the ruling. "Police officers owe a duty of care to suspects."

Unfortunately for Hill, the top court upheld lower-court judgments that said the Hamilton investigation did not cross the line. "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," the ruling said. [It was not negligent to make him stand out like a sore thumb in a police lineup??? The witnesses were looking for a native guy and he was the only native guy there! I would have called it malice aforethought]

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