NEGLIGENT INVESTIGATION & POLICE LIABILITY

NEGLIGENT INVESTIGATION & POLICE LIABILITY Canadian Association of Police Boards Annual Conference August 21, 2010 Jennifer Freund Pat Knoll

Introduction Negligent Investigation By Police What Is It? What Was It Prior To 2007?

Introduction con t Prior to 2007 Potential Damages v. Police Malicious Prosecution Successful if: Absence of Reasonable and Probable Grounds Police Arrest/Charging Malice or Inferred Malice By Police Deliberate/Improper Use Of Office Very High Barrier Limited Scope For Success

Introduction con t BUT 1997 Beckstead v. Ottawa Chief of Police Ont. C.A. Allowed Damages Neg. Invest. (Malice Not Needed). 2003 Lloyd v. Toronto allowed tort (Ont.). Other Canadian jurisdictions refused to recognize tort Alberta; New Brunswick

Hill v. Hamilton Wentworth Regional Police Services Board 2007 SCC 4 [2007] 3 S.C.R. 129

Initial Events Series of Bank Robberies Mr. Hill Identified as a Suspect Criminal Trial #1: Conviction Criminal Appeal: Appeal Allowed Criminal Trial #2: Acquittal

Civil Trial Negligent Investigation Action Allowed

Civil Trial Con t I do not think that the Caucasian and native Canadian mix in fact had any sway in the arrangement chosen, or in the results in regard to Mr. Hill being picked out.

Civil Appeal Five Judge Panel 3:2 Split on Question of Negligence Negligent Investigation is a Cause of Action in Ontario

Supreme Court of Canada 6:3 Split on Question of Existence of Tort Negligent Investigation is a Cause of Action in Canada Appeal Dismissed No Negligence Found

Standard?

Duty of Care To a Particularized Suspect Only

Conflict?

Standard of Care / Test the reasonable police officer in like circumstances

Standard / Test con t The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made

Standard / Test con t Police meet a standard of reasonableness by merely doing what a reasonable police officer would do in the same circumstances

Limitation Period..not when the negligent act is committed, but rather when the harmful consequences of the negligence result

Application of Hill

Potential Future Trends Other Categories of Complainants Private Police and Security Internal Investigations Public Complaints

Factors Leading to Negligence Ingredients Lazy; Sloppy; Incompetent; or Carelessly Indifferent Investigation Bias (Racial; Ethnic; Economic; Other) Delayed/Temporally Impaired Tunnel Vision/Not Objective Insufficient Gathering of Evidence Statements of Parties/Witnesses MALICE Not Required But Human Error Not Sufficient!

Wrongful Convictions Cases: Milgaard (1969) Marshall (1971) Driskell (1991) Dumont (1992) Morin (1992) AIDWYC: www.aidwyc.org

Preventative Measures Police Services Recruit Training Supervision Existing Protocols/Standards C.A.L.E.A. (U.S.A.) Standard; 42.2.1 U.K. Legislation Independent Review (R.C.M.P) Provincial Standards

Existing Protocols/Standards con t Criminal Procedure and Investigations Act 1996, (UK) c.25 s.23 Code of Practice

Criminal Procedure and Investigations Act 1996 (UK) (Code of Practice) all reasonable steps are taken for the purpose of the investigation and, in particular, all reasonable lines of inquiry are pursued.

Criminal Procedure and Investigations Act 1996 (UK) (Code of Practice)

Existing Protocols/Standards con t Independent Review

Independent Review The purpose of an independent review is to ensure that an investigation is on track. It has an added benefit of attempting to eliminate tunnel vision...

Existing Protocols/Standards con t Provincial Standards

Board / Commission Response What You Can Do Ask Questions! Ensure Standards Exist

Civil Liability

NEGLIGENT INVESTIGATION & POLICE LIABILITY

Appendix Items to Discuss With Your Police Service to Ensure Investigative Standards Are In Place Training Provincial Standards General Investigative Training Crime Specific Investigative Training In House / Curriculum Design / Formal Classes / District Training Canadian Police College Public Agency Training Council (US) Practical Experience Recertification / Advanced Training Records Management Major Case Management System Canadian Police College Standard Role Assignment (e.g.. Primary Investigator, File Manager, Team Commander)

Appendix con t Policies and Standard Operating Procedures Provincial Standards Conduct of an Investigation Exhibit Handling Photo Arrays Recording and Retaining Information Are the Standards Being Followed? Is There Proper Supervision to Ensure They Are Followed? Are There Expectations Regarding Timeliness of Investigative Actions? Are the Policies and Standard Operating Procedures Reassessed, Redeveloped or Improved Upon Regularly? Information Updates and Sharing Review of Court Decisions, Legislative Changes and Development of Reasonable Police Officer in Law Timely Amendments to Policies and Standard Operating Procedures Timeliness of Information Sharing with Front Line Officers and Investigators

Appendix con t Independent Review Formal or Informal Team Member to Challenge Elements of Investigation Sounding Board Internal Reviewer External Reviewer Pre-Charge Consultation with Appeal Process Operational Plans / Supervisor Approval for Resourcing Assessment of Resource Availability

Bibliography Table of Cases Anns v. Merton London Borough Council, [1978] A.C. 728. Correia v. Canac Kitchens, a Division of Kohler Ltd., [2008] O.J. No. 2497, 294 D.L.R. (4th) 525 (Ont. C.A.). Beckstead v. Ottawa (City of), [1997] 37 O.R. (3d) 62, [1997]155 D.L.R. (4th) 382. Dix v. Canada (Attorney General), 2002 ABQB 580. Hill v. Hamilton Wentworth Regional Police Services Board, (2003), 66 O.R. (3d) 746 (Sup.Ct.J.). Hill v. Hamilton Wentworth Regional Police Services Board, (2005), 76 O.R. (3d) 481 (C.A.). Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 4, [2007] 3 S.C.R. 129. Lloyd v. Toronto Police Services Board, 2003 CanLII 15846 (ON S.C.). Mainville c. Laval (Ville de) (Service de protection des citoyens, département de police et centre d'appels d'urgence 911), 2010 QCCS 1319. Nelles v. Ontario, [1989] 2 S.C.R. 170, [1989] S.C.J. No.86 at para.42. Project 360 Investments Limited (Sound Emporium Nightclub) v. Toronto Police Services Board, 2009 CanLII 36380 (ON S.C.). R. v. Hill, [1997] O.J. No. 3255 (C.A.) (QL). R. v. Steele, 2010 ABQB 191.

Bibliography con t Table of Statutes, Codes and Standards Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. Criminal Procedure and Investigations Act 1996, (UK) c.25. Criminal Procedure and Investigations Act 1996 (Code of Practice) Criminal Procedure and Investigations Act 1996 (Code of Practice for Arranging and Conducting Interviews of Witnesses Notified by the Accused) Criminal Procedure and Investigations Act 1996 (Code of Practice) (Armed Forces) Order 2008. Criminal Procedure and Investigations Act 1996 (Code of Practice) (Northern Ireland) Order 2005. Criminal Procedures (Scotland) Act 1995, c. 46. Provincial Policing Standards Manual, Alberta Solicitor General and Public Safety, March 2006. Various Provincial Police Acts and Regulations were consulted

Bibliography con t Books, Articles and Websites Canadian Police College. www.cpc-ccp.gc.ca. Accessed August 5, 2010. Ceyssens P. Legal Aspects of Policing. (2001 and supplements to 2009). Earlscourt Press. Commission on Accreditation for Law Enforcement Agencies, Inc. (CALEA). http://www.calea.org. Accessed August 5, 2010. Falconer, J. & Esmonde, J. (2010), Civil Liability of Police Forces to Members of the Public. (unpublished Law of Policing Conference Can. Institute, Tor. falconercharney@fcbarristers.com). Franklin v. Toronto Police Services Board, 2008 CanLII 67896 (ON S.C.). Freund J., Police Civil Liability for Negligent Investigation. (2008), Vol. 53 Criminal Law Quarterly at 469. Halsbury s Laws of Canada. Police, Security and Emergencies. 2009. LexisNexis. HPO-74, HPO-77 through HPO-85, HPO-134. Mazzuca, et. al. (2010). Malicious Prosecution and Negligent Investigation. (unpublished Law of Policing Conference Can. Institute. Tor. emazzuca@blaney.com). Public Agency Training Council. http://www.patc.com. Accessed August 5, 2010. Simon v. Toronto Police Services Board, [2002] O.J. No.5933 (Sup.Ct.J.). Solomonvici v. Toronto Police Services Board, 2009 CanLII 39060 (ON SC). Thompson v. Webber, 2009 BCSC 1876. Wellington v. Her Majesty the Queen, 2010 ONSC 2043.

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