Recent Litigation in the Law of Malicious Prosecution and Negligent Police Investigation

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1 Recent Litigation in the Law of Malicious Prosecution and Negligent Police Investigation Presented to: CACOLE 2003 Conference Banff, Alberta Presented by: Professor Pat Knoll, Q.C. Faculty of Law University of Calgary

2 INTRODUCTION: Police oversight agencies in Canada would do well to be attentive to current developments in the law respecting civil causes of action for negligent police investigation and malicious prosecution arising from police laid charges. 1 Increased vigilance in this respect is warranted due to a spate of recent successful actions for negligent investigation and the wider liability potential for the tort of malicious prosecution. 2 It would seem predictable that costly lawsuits will become more prevalent 3 against police Services that fail to be diligent respecting sound investigative 5 and Charter of Rights obligations. Oversight agencies should accordingly be watchful for incidents and practices that indicate a failure on the part of a police Service to remedy training, supervision, or complaints investigations, that are lax, superficial, or entirely ill-informed respecting the law as it currently stands and continues to coalesce in this developing area. LITIGATION EXAMPLES: (i) Malicious Prosecution/Negligent Investigation Beckstead v. Ottawa (City) Chief of Police (1998), 37 O.R. (3d) 62 (Ont. C.A. and Gen. Div.). Beckstead charged with unlawful use of a bank card. Video of culprit, viewed by police, did not according to police notation resemble Beckstead. Investigating officer lays charge absent interview with the victim or Beckstead. Civil suit for negligent investigation successful as Acareful investigation@ not carried out and not even rudimentary steps followed to establish reasonable and probable grounds. Award of $20,000 to Beckstead considered in Ontario Court of Appeal to be Amodest@ given the circumstances (see also; Bainard v. Metro Toronto Police Services Board, [2002] O.J. No (Q.L.) (S.C.) See the litigation examples that follow in this paper C some of which are for false arrest or arise from citizen complaints of abusive treatment. Id. See, Makin K., ALaw Bears Down on Police Conduct@, Globe and Mail (March 31, 2003, at < Some police interest has arisen in this risk area as the Canadian Association of Chiefs of Police (C.A.C.P.) have included the subject for their 2003 Annual Meeting; see, Managing Risk, C.A.C.P., Banff (November 2-5). For a discussion of police investigative practices see, Epp, J., APenetrating Police Investigative Practice Post-Morin (1997), Vol. 31:1, U.B.C. Law Review.

3 3 Rutledge v. Ottawa Police Service, (December 1999 C see, Wente, M., Globe and Mail, December 5, 2000 at A21). Teacher arrested by officer for sexual assault of 13 year old female during class period. Prior to arrest and charges officer interviews only the complainants and girlfriends. No interview of Rutledge or various independent students present at the alleged time. Charges withdrawn by Crown in January 1999 C Civil suit filed by Rutledge for $.1.1 million in damages (malicious prosecution/negligent investigation). Settled in favour of the plaintiff for an undisclosed amount. McTaggart v. Ontario (2000) Ont. Ct. Justice (No. O.J. 766 C Doc. No /90 Q) C (Quicklaw C w.w.w.). McTaggart (Subway Elvis@) convicted on two counts of robbery laid by Metro Toronto Police. Convictions overturned on appeal and charges eventually withdrawn. Civil suit then launched by McTaggart based on failure of investigator to disclose exculpatory evidence, gathered by the investigating officer, that had been entirely disregarded in favour of what was considered incriminating. Actions by investigating officer a breach of Section 7 of Charter and a AConstitutional Tort.@ Damages of $230,000 awarded to McTaggart for imprisonment and other impacts, and in view of wilful and odious conduct of officer who hid highly probative information. Lacasse v. Toronto Police Services Board et. al.; Court File 02-BN-1106, Ont. Ct. Justice, February 2002; see also, AToronto Man Gets $50,000 from Police to Settle Suit@, Makin, K., Toronto Globe & Mail, p. A-7 (May 2, 2003). Truck driver Lacasse arrested by Toronto Police for allegedly pointing a firearm at his neighbour. Circumstances arose when Lacasse put up a target in his backyard and used pellet gun for practice at 8:00 a.m. on August 21, Complaint made by neighbour who had been the subject of earlier police investigation and was believed by investigating police to have Alzheimer=s disease. When complainant gave arresting officer statement of events she advised that gun was never pointed at complainant C officer arrested Lacasse nevertheless. Police brief to the Crown indicated that complainant asserted that gun pointed Adirectly at her waist level.@ Lacasse jailed for nine days awaiting release. Civil suite based on negligent investigation and malicious prosecution settled for $50,000 payment to Lacasse. Popowich v. Martensville et al.; see Calgary Herald (June 19, 2002) p. A-10, AFalsely accused police officer awarded $1.3 m@. Saskatoon police officer charged with sexual assault of Martensville daycare centre children. Civil suit for malicious prosecution launched by Popowich after his acquittal in Suit settled in June 2002 by government of Saskatchewan, Martensville, and City of Saskatoon, for $1.3 million in damages. 3

4 Dix v. Canada (R.C.M.P.) et al. (2003), 15 A.R. 1 (Alta. Q.B.). Dix charged with two counts of first degree murder. Charges eventually abandoned by prosecution part way through trial. Civil suit for malicious prosecution and negligent investigation filed against R.C.M.P., Crown Counsel, and Provincial Department of Justice. Action successful and over $500,000 awarded in damages. Given the evidence gathered, insufficient basis for police to have charged Dix at the outset C no reasonable and probable grounds to conclude that Dix was probably guilty. Action for malicious prosecution aided by Charter breaches by police respecting circumstances of detention, interrogation, and other investigative failures. Negligent investigation not available as a separate tort (negligence) action. (See also O=Neil v. Marks (2001), 195 D.L.R. ( th ) at 59 (Ont. C.A.) and generally Ceyssens, Legal Aspects of Policing (199 C and supplements to 2002) at 3.9. (ii) Unlawful Arrest Complaint: Trudgian v. Bosche (2003), Sask. Q.B. (S.J. No Q.B.G. No J.C.R.) - (Quicklaw - w.w.w.). R.C.M.P. cadet Trudgian charged by Regina City police officer for alleged sexual assault on a female cadet in stairway at R.C.M.P. Academy in Regina. Constable Bosche of Regina police found to have conducted one hour of interview of the complainant and shortly after proceeding to arrest and charge Trudgian although Boche was aware that other cadets were present during times of the alleged assault. Civil suit launched by Trudgian, after dismissal of the charge, based on false arrest and imprisonment by Bosche in that no reasonable and probable grounds ever existed for the arrest. Civil suit successful as arresting officer was very hasty and precipitous in laying the charge (no objective grounds) and failed to investigate and consider other potential evidence from Academy supervisors and members of the cadet troop. Royal Newfoundland Constabulary (R.N.C.) v. R.N.C. Complaints Commissioner (April 26, N.J. No Doc. No T3223). Complaint of Parsons against R.N.C. officer for false arrest and imprisonment arising from a charge of assault against Parsons. Charge laid absent a thorough investigation of Aall available evidence@ including the statements of several witnesses that Parsons asserted were present at or near the time of the alleged assault. Failure by the officer to properly inform himself as to the available information caused deprivation in context of proper formation of reasonable and probable grounds. Conclusion of complaints adjudicator confirmed on appeal to the Newfoundland trial division. Marshall v. Knight and Olson (C.P.S.); (2001), 10 L.E.R.B. at 125 (No Alta.). Decision of Alberta Law Enforcement Review Board that police officers Knight and Olson engaged in a precipitous and improper arrest of Marshall for assault at a football game. Misconduct engaged in as failure on the part of officers to inform themselves of all available evidence from readily available independent witnesses. Testimony provided that there was

5 5 no urgency to arrest Marshall C arrest conducted when, Athere was no real urgency other than expediency.@ Board concluded misconduct engaged in as Aall available evidence@ must be considered in determining the advance of a criminal charge and expediency and officer convenience thoroughly unlawful and improper basis on which to lay a criminal charge. (See also; Smith v. Richardson (1997), 6 L.E.R.B. at 185 (No Alta.). REMEDIAL: Police Boards and Commissions having direct governance responsibility concerning a police Service should be alert to risk management issues surrounding the subject of improper charging. A variety of factors may be involved as a matter of causation in this connection, including: (i) (ii) (iii) (iv) Inadequate recruit and in-service training respecting the acquisition of lawful Areasonable and probable grounds.@ Inadequate supervision and Ascreening out@ of improperly laid charges. Charges laid where officer=s motivation improper, malicious, reckless, or arising from misconduct of officer (Acover charging@). Charges laid where officer negligent, careless, lazy, or because of other expediency or convenience to the officer. As a first remedial measure a Police Board or Commission should raise the overall subject with their police Service and inquire as to what, if any, attention has been directed to this emerging (Arisk@) area. As a second measure efforts should be made to carefully group and monitor complaints that allege improper, malicious, or negligent charging so as to establish a baseline respecting complaint volume over a specific time period. This measure would allow for disclosure of substantial fluctuations in this context and remedial attention if unusual spiking were to occur. Close and specific complaint file monitoring should also be employed in tandem with annual macro profiling. Oversight agencies engaged in tribunal or quasi-judicial adjudication of citizen complaints also have a critical role to play with respect to matters that fall within this subject area and the identification of specific misconducts should not be their sole focus. It is important that wherever possible pro-active education initiatives are offered by external complaint adjudication agencies to police Services C both for recruit and in-service officers. Efforts should be made where appropriate to encourage, prod, or compel suitable and productive responses for this increasingly litigious area. 5