Good Cop, Bad Cop, Reasonable Cop at the Time?

In Hill v Hamilton‑Wentworth Regional Police Services Board, [2007] 3 SCR 129 [Hill] the Supreme Court of Canada (“SCC”) confirmed that police officers can be sued by suspects who have suffered damages as a result of negligent investigation. However, in this case, the SCC found that the officers had not been negligent because they had acted in accordance with the standards of a reasonable police officer in 1995. This begs the question: what are the standards of a reasonable police officer in 2007?

Hill provides little clarification for this question. While the SCC holds that the ordinary professional negligence standard is appropriate for this new tort, the way in which such a standard is actually applied in this case makes it difficult to imagine the type of police conduct which would actually attract civil liability.

A litany of the mistakes made by the police in the investigation of Jason Hill would produce incredulous responses from most people. During their investigation, the police released photographs of Hill to the media, which may have contaminated witnesses. They then interviewed two witnesses together, leaving a newspaper photograph identifying Hill as a suspect on a nearby desk. They asked witnesses to identify the bank robber from a photo lineup which included Hill, who is aboriginal, and 11 Caucasian foils.

Further, after Hill had been arrested for a string of bank robberies, similar robberies continued and were eventually attributed to another person who bore a strong physical resemblance to Hill. Despite this knowledge, police did not reinvestigate but allowed the case against Hill to continue, leading to a wrongful conviction.

However, the SCC held that the police conduct in this case was not inconsistent with general police practice in 1995. Further, the SCC did not conclude that similar conduct today or in the future would breach the standard of care. It only left open the possibility.

The standard of care for a professional is generally higher than that for an ordinary person because professionals are expected to possess special skill and experience in their area of training. Yet even a person who is not familiar with police procedure can see that the police investigation in this case was inherently flawed. All it takes is common sense.

Also, there does not appear to be any evidence that the impugned conduct was typical or standard police practice in 1995, only that there was a variance in practices at the time. It should not provide an automatic defense to negligence, particularly in light of the obvious errors in the practice.

It appears clear that while the SCC states that the ordinary negligence standard applies to police in the tort of negligent investigation, the actual standard established by the decision is a much more lenient one than for other professions. Perhaps, this is one way in which the SCC attempts to addresses concerns raised by in the minority judgment that a duty of care for police officers would lead to a chilling effect on police investigation and open the floodgates to innumerable litigation.

It remains to be seen how lower courts will respond to this decision and what standard of care they will actually establish. Only then can we tell whether this new tort of negligent investigation has any teeth.

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