October 19th, 2007
In Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, in a 6-3 decision, the Supreme Court of Canada held that the tort of negligent investigation does exist in Canada, but that the tort was not made out on the facts of this case.
The plaintiff, Jason George Hill, was investigated by Hamilton police in connection with a series of robberies. He was arrested, tried, and convicted, but later acquitted in a new trial after spending 20 months in jail. He alleged that the police investigation that led to his arrest and wrongful conviction was negligent in a number of ways. For example, he took issue with the identification evidence of two bank tellers that had been obtained by interviewing them together with a newspaper photograph identifying him as a suspect on the desk in front of them. He was also critical of the manner in which a photo line-up had been conducted. Witnesses had described the robber as Aboriginal, and the photo line-up was comprised of the plaintiff, who is an Aboriginal person, and 11 Caucasian foils.
Chief Justice McLachlin, writing for the majority, acknowledged that the relationship between an investigating police officer and a suspect is not one previously recognized by the court as giving rise to a duty in negligence. But, applying the two-stage Anns test (as refined by the SCC in Cooper v. Hobart,  3 S.C.R. 537), she determined that the relationship is sufficiently proximate to generate such a duty. In so doing, she emphasized the important interests that this relationship engages: “At stake are [the suspect’s] freedom, his reputation and how he may spend a good portion of his life.” Further, she asserted that there is a public interest at stake which is consistent with the interests of the suspect: “Recognizing an action for negligent police investigation may assist in responding to failures of the justice system, such as wrongful convictions or institutional racism.”
Chief Justice McLachlin did not find any of the residual policy concerns put forward by the defendants to be sufficiently compelling to negative a duty. She concluded that arguments about a chilling effect on the investigation of crime were merely speculative and not borne out by the evidence, while concerns relating to a potential conflict between a duty of care in negligence and other duties owed by police could better be addressed by a carefully crafted standard of care than by an outright denial of a duty.
As to the appropriate standard of care, Chief Justice McLachlin settled on one consistent with that to which other professionals are held, that of “a reasonable police officer in similar circumstances.” She was careful to note that this is not a standard that operates by hindsight. Rather it must be attentive to the practices embraced by members of the profession at the time that negligence was alleged to have been committed, taking full account of “the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information.”
Turning to the facts of the case, Chief Justice McLachlin conceded that some of the investigative practices that the plaintiff alleged to be negligent “are not good police practices judged by today’s standards” but asserted that “the evidence does not establish that a reasonable officer in 1995 would not have followed similar practices in similar circumstances” and further that is it not clear “that if these incidents had not occurred, Hill would not have been charged and convicted.” The majority thereby concluded that while the defendants owed the plaintiff a duty of care, no breach of that duty to had occurred. The dissenting judges would have held that no duty existed to be breached.
This judgment is noteworthy for a number of reasons. The Supreme Court has characterized its 2001 decision in Cooper v. Hobart as simply adding nuance to, not stepping back from, the two-stage Anns test which has long governed the duty of care analysis in Canada. However, the decision has been interpreted by lower courts in such a way that its effect has been to put a brake on the expansion of negligence law. This conservative turn on the part of lower courts has been bolstered by the caution shown by the SCC itself in recent duty decisions. For example in 2006, in Childs v. Desormeaux,  1 S.C.R. 643, the court declined to hold that social hosts owed a duty to a motorist injured by a party guest who drove home drunk. In embracing the fledgling tort of negligent investigation in Hill, the SCC appears to be reversing course somewhat.
In tandem with this apparent return of openness to new duties, it is encouraging to see the SCC explicitly taking into account policy reasons which support novel duties as well as those that cut the other way. I found it heartening to see mention in the majority judgment in Hill of the potential of the tort of negligent investigation to assist in combating wrongful convictions and the institutional racism which may contribute to them.
The weakness of the Hill decision is the extent to which the possibility of thus using negligence law to address institutional racism is undercut by the SCC’s articulation of the applicable standard of care. The standard is that of the “reasonable police officer” but the reasonableness of that standard is tempered significantly by the deference accorded by the court to the practices of the time. For example, to what extent might the knowledge of the time be imbued with institutional racism? Deference to prior states of knowledge makes sense in the medical context in which this principle arose. For example in ter Neuzen v. Korn,  3 S.C.R. 674, the SCC rightly concluded that in assessing the adequacy of the measures employed by a fertility clinic to combat the spread of STDs prior to 1985, the limits of scientific knowledge then available about the spread of HIV had to be taken into account. But in suggesting in Hill that a lack of awareness in 1995 “of persisting problems with institutional bias against minorities in the criminal justice system, including aboriginal persons like Mr. Hill” is an apt parallel with a lack of scientific knowledge about the spread of HIV in 1985, the court makes a serious misstep.
In thus deferring to prevailing practices that go beyond those dictated by medical or technical knowledge, the court insulates professionals from liability in a way that it does not insulate ordinary citizens. Thus a professional standard, rather than denoting a heightened standard which takes account of training and expertise, comes to denote a lower standard, which allows professionals to get away with simply meeting the average when that average, potentially tainted by institutional racism, may be unreasonable.
I applaud the SCC’s embrace of the tort of negligent investigation in Hill, but I have serious concerns about the scope that the court has allowed for the effectiveness of this tort.[filed: Hill (2007)]