Police can be sued for sloppy investigations, Canadian Supreme Court rules

Let's hope this spreads to other jurisdictions

The Supreme Court of Canada yesterday stripped police of their immunity from lawsuits for conducting negligent criminal investigations. In a 6-3 ruling, Chief Justice Beverley McLachlin expressed her hope that by making police vulnerable to civil action, it will induce investigators to avoid being careless or reckless when they investigate crimes. "While the vast majority of police officers perform their duties carefully and reasonably, the record shows that wrongful convictions traceable to faulty police investigations occur," she wrote for the majority. "Even one wrongful conviction is too many, and Canada has had more than one."

For the appellant - Jason George Hill - it was a case of winning the war of principle, yet losing a personal battle. The court threw out his lawsuit against the Hamilton-Wentworth Regional Police, saying that a robbery investigation that led to Mr. Hill's arrest and incarceration was in keeping with police standards of the day. Mr. Hill was imprisoned for 20 months for a string of robberies in the late 1990s. He was exonerated only after the real robber was found and convicted.

Mr. Hill's lawyers, Sean Dewart and Louis Sokolov, predicted yesterday that municipalities and their insurers will begin to insist on better police training in order to head off future lawsuits. "This is a very good day for police accountability in Canada," Mr. Sokolov said. "The Supreme Court stated in resounding language that police are no different from the rest of us, and can be sued if they do their jobs negligently."

A couple of provinces - notably Quebec - currently permit lawsuits for negligent investigation. Others, such as Alberta and New Brunswick, have been adamantly opposed to allowing them lest they compromise police investigations. Yesterday's ruling featured a tough stand-off between the majority and three dissenting judges - Madam Justice Louise Charron, Mr. Justice Michel Bastarache and Mr. Justice Marshall Rothstein - who predicted dire consequences for policing and society in general. "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," Judge Charron wrote. She noted that individuals who are acquitted of crimes are not necessarily innocent, but escaped responsibility because police and prosecutors could not prove their culpability. They may enjoy an unwarranted financial windfall if they can then sue the police, she said.

Kirk Boggs, a Toronto lawyer who frequently represents police, predicted that police will find themselves targeted in costly, nuisance lawsuits that harm their reputations and tie them up in court for years. These cases will inevitably feature a great deal of conflicting expert testimony about what investigative steps were or were not sound, he said. "As an officer, you might just turn your head the other way, rather than risk the possibility of a lawsuit and spending time in court," Mr. Boggs said in an interview.

However, Chief Justice McLachlin said that police, like doctors or lawyers, must be expected to live up to a reasonable standard of conduct toward those whose lives are in their hands. "The relationship is clearly personal, close and direct," she said. "The targeted suspect has a critical personal interest in the conduct of an investigation. At stake are his freedom, his reputation and how he may spend a good portion of his life."

Chief Justice McLachlin dismissed any notion that police will begin to shy away from charging suspects unless they have an airtight case. "Discretion, hunch and intuition have their proper place in police investigation," she said. "However, to characterize police work as completely unpredictable and unbound by standards of reasonableness is to deny its professional nature."

Bradley Berg, a lawyer for the Canadian Civil Liberties Association in the case, emphasized yesterday that police will not be held to a standard of perfection. "As the chief justice acknowledges in the majority reasons, it is conceivable that the police might become more careful after this decision, but that's not necessarily a bad thing," he said.

Mr. Dewart praised the majority for exposing the "vacuous, nonsensical" argument that police may become afraid to do their jobs. "Is there a slippery slope for neurosurgeons, who don't do surgery because they might be sued?" he asked.

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