Civil Liability for Negligent Police Investigation: Canadian Developments

AuthorMarc W. Patry
PositionSaint Mary?s University, Halifax, Nova Scotia, Canada
Pages23-28
The Open Law Journal, 2008, 1, 23-28 23
1874-950X/08 2008 Bentham Open
Open Access
Civil Liability for Negligent Police Investigation: Canadian Developments
Marc W. Patry*
Saint Mary’s University, Halifax, Nova Scotia, Canada
Abstract: In October of 2007, the Supreme Court of Canada issued its ruling in Hill v. Hamilton-Wentworth Regional
Police Services Board, a case in w hich the Court add ressed the legitim acy of a tort for neglig ent police investig ation. The
holding by a majority of six Justices recognized the tort of negligent police investigation at Canadian law. As such, Can-
ada is now one of the only common law countries to have recognized such a tort. This paper summarizes the case and ad-
dresses its impl ications for the Canadian law enforcement commun ity.
Keywords: Civil liabil ity, policing, in vestigation.
1. CIVIL LI ABILITY FOR N EGLIGEN T POLICE IN-
VESTIGATION: CANADIAN DEVELOPMENTS
This paper sum marizes the r ecent Hill ruling and dis-
cusses its implications for Canadian police. First is a sum-
mary of the case facts, followed by a summary of the lower
court and Supreme Court of Canada decisions, and then a
discussion of implications including some recommendations
for Canadi an law enforcement ag encies.
2. SUMMARY OF CASE FACTS
In 1996, Jason Hill was wrongfully convicted of a rob-
bery charg e. He was eventually acquitt ed after a new tria l
was ordered on the basis of a successful appeal. Hill spent a
total of mo re than 20 months in carcerated . Hill later filed
suit against the Hamilton-Wentworth Regional Police Serv-
ices Board, the individual police officers involved in his
case, and the Crown Attorneys involved in his investigation
and prosecution. Hill ceased action against the Crown and
some of the individual officers before the matter reached
trial.
Originally , the polic e suspec ted Hill o f committin g 10
robberies that had occurred in 1994 and 1995 in Hamilton,
Ontario. Pol ice began to suspec t Hill after they rece ived a
tip, and sub sequently a police off icer iden tified Hil l from a
surveillance photograph from one of the robberies. There
was a potential sighting by an officer of Hill near the scene
of one of the robberies. Additionally, some witnesses identi-
fied the robber as being aboriginal, which matches Hill’s
ethnicity. Police circulated Hill’s photo in the popular media
while the investigation was ongoing. Photo lineups with wit-
nesses were constructed with Hill’s photo and 11 Caucasian
foils who w ere similar in app earance to Hill.
During the investigation, police acquired information that
two Hispanic men, one of whom looked like Hill, were in
fact the robbers. After Hill was incarcerated, two additional
similar robberies took place. Hill was charged with 10 counts
of robbery, but police dropped all but one of those charges
*Address correspondence to this author at the Saint Mary’s University,
Halifax, Nova Sco tia, Canada; E-mail: Ma rc.Patry@smu.ca
before the Crown Attorney moved forward. Testimony from
two witnesses from that robbery resulted in a conviction on
that charge. O n appeal, H ill was allow ed a new trial . He was
acquitted in the second trial. Hill then brought suit against
the police on the basis of an allegation of negligent investi-
gation.
3. SUMMARY OF THE LOWER COURT PROCEED-
INGS
Hill’s negligence claim was based on several specific
aspects of the investigation. For one, he claimed the police
were negligent in their conduct regarding two bank tellers
who identif ied him. Spe cifically , Hill alleg ed police neg li-
gence with reg ard to the iden tificatio n proceedin gs for the
following r easons: 1 ) the witn esses wer e intervi ewed to-
gether, not separately as suggested in non-binding guidelines
for police procedures regarding eyewitness identifications, 2)
during the interview there was a newspaper photograph of
Hill (which had been released to the media by police) on the
witnesses’ desk durin g the inter view, and 3) Hill alleg ed bias
in the construction of the photo lineup used to identify him.
In addition, Hill claimed the police were negligent because
they did not c ease to consid er him a susp ect when new evi-
dence surfaced that potentially exculpated him.
In the original civil trial, H ill’s negl igence cla im was
dismissed. The Ontario Superior Court judge presiding over
the original civil trial recognized the tort of negligent inves-
tigation, but dismissed the charges based on a conclusion
that the conduct of the police officers during Hill’s investiga-
tion, while imperfect, was not negligent because it did not
differ from the conduct of a reasonable officer in similar
circumstanc es.
Hill appealed the decision. The Court of Appeal unani-
mously recognized the tort of negligent investigation, but a
majority of three jus tices held that the po lice had n ot been
negligent in Hill’s case. Two dissenting justices found that
the police had been negligent in their failure to reinvestigate
on the basis of potentially exculpatory evidence, and that the
trial judge had erred in allowing the lineup which, in their
view, was biased based on the fact that it consisted of 11
Caucasian foils and one aboriginal suspect, Hill.

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