Hill: The Tort of Negligent Investigation

Hill v Hamilton-Wentworth Regional Police Services Board, [2005] OJ No 4045 (ONCA) is an important case that considers whether the tort of negligent investigation by the police should continue to exist. If it is decided that the tort of negligent investigation by the police ought to be abolished, then the SCC will overrule the current law of Ontario, as decided in 1997 by the Ontario Court of Appeal in Beckstead v Ottawa (City of), [1997] OJ No 5169 (ONCA) [Beckstead].

Ten robberies of trust companies, credit unions, and banks in Hamilton occurred between December 1994 and January 1995. After the seventh robbery on January 12, 1995, Jason Hill, a young Aboriginal man, became a suspect when police received a Crime Stoppers tip and he was identified by a witness. Following a more intensive investigation, a photo line-up was prepared to show to robbery witnesses. The line-up consisted of Hill and 11 Caucasian “foils.” Two additional robberies occurred in mid-January, which lead police to release a photo of Hill to CHCH television and the Hamilton Spectator naming him as the suspected robber. Shortly after, on January 23, 1995, a tenth robbery occurred where two eyewitness tellers had enlarged copies of Hill’s released photograph posted to their desks. Both tellers identified Hill as the perpetrator. Another individual who possessed the photograph believed he saw Hill around the institution involved in the tenth robbery shortly before the robbery occurred.

The police received an anonymous tip suggesting that Hill was not responsible for the robberies. According to this tip, a Spaniard, “Frank,” and a Cuban, “Pedro,” were the individuals responsible for the crime. Despite this information, Hill was arrested on January 27, 1995. He was later charged with ten counts of robbery on the basis of the positive identifications by eyewitnesses, his sighting shortly before the tenth robbery, and witness evidence indicating that the robber appeared to be Aboriginal. On the basis of this evidence, it was the investigator’s belief that all ten robberies were committed by the same individual. In February, while Hill remained in custody, however, a credit union and bank branch were robbed in a similar fashion to the other robberies and the description of the perpetrator matched that of Hill. One difference between the crimes was that a gun was used during the Februrary robberies. In investigating the February robberies, the lead detective received a credible Crime Stoppers tip that a man named “Frank” was responsible for each robbery, as well as information from another police officer that Francesco (“Frank”) Sotomayer could possibly be the perpetrator. After further investigation, the detective concluded that both men were similar in appearance and that the still photos from the first robbery actually more closely resembled Sotomayer than Hill.

In early March, the Crown withdrew the first two charges against Hill after concluding that these robberies were committed by Sotomayer. In April, two other charges were withdrawn after witnesses testified that Hill was not responsible for the robbery. After further reviewing the file, the Assistant Crown Attorney withdrew five of the remaining six charges against Hill and the trial proceeded on the basis of only the tenth robbery on January 23, 1995. In March of 1996, Hill was found guilty of robbery and sentenced to three years in prison. Hill’s appeal to this conviction was allowed on the basis that the trial judge had erred in his instructions to the jury; however, the judges explained that the verdict was not unreasonable, as claimed by Hill. A new trial was ordered at which Hill was acquitted of the robbery charge.

Hill initiated civil action against the Hamilton-Wentworth Police Services Board and many of the involved police officers claiming malicious prosecution, negligence, and breach of Charter rights. At trial, the judge agreed that Hill had been wrongfully convicted and suffered a “great deal”; however, he found that the police had not breached Hill’s Charter rights or committed the torts of malicious prosecution or negligent investigation, as they had reasonable and probable grounds to prosecute the plaintiff, as supported by evidence. Hill appealed this judgment with respect to the claims of malicious prosecution and negligent investigation, while the respondents asserted that a tort of negligent police investigation should not exist and the Court of Appeal should overrule Beckstead.

At the Court of Appeal for Ontario, Hill’s appeal was dismissed. MacPherson J.A., with Goudge and MacFarland concurring, found that the trial judge’s conclusions were not unreasonable or insufficient, as claimed by Hill. The officers had not acted maliciously or for an improper purpose, as supported by evidence. The Court of Appeal did not overrule Beckstead, and remained supportive of the tort of negligent investigation. In coming to this conclusion, MacPherson J.A. explained that, “I am not persuaded that the policy rationales they advance are sufficiently compelling to deny the existence of a duty of care owed by the police in the context of how they conduct their criminal investigations.” The claim that a legal duty of care on the police with respect to their criminal investigations will divert time and resources away from the investigation of a crime to the defense of an investigation is unfounded. A legal duty of care already exists in Ontario and Quebec and neither province has experienced this problem. Further, legal standards on the police, such as the reasonable and probable grounds standard for making an arrest, already exist. The Court of Appeal also stressed the importance of the recognition of the rights of suspects and victims and the balance of these rights with the duties of the police. A negligent police investigation may infringe the rights of a suspect or victim to liberty and security of the person as protected by s. 7 of the Charter, as suspects may experience wrongful detention and victims may suffer injury.

While we await judgment from the SCC with respect to this appeal, one may consider whether the existence of a duty of care owed to suspects in a criminal investigation by the police may adversely affect the actions of officers. Will police officers be incapable of fully focusing on the process of identifying perpetrators for fear of litigation which could result from a “negligent investigation”? It appears that the trial judge was able to reconcile the rights of the suspect with the duties owed by the police to avoid negligence in the investigative process. While it was found that the suspect had indeed suffered, it was also determined that the police had reasonable and probable grounds to prosecute. Should there not be limits imposed on the police during the investigative process in order to protect the rights of victims/suspects? The tort of negligent investigation is a tool which promotes these rights without unduly compromising the ability of the police to fulfill their duties. The SCC will have the final say on whether the tort of negligent investigation with respect to police investigations will survive.