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Expanding Duties and Shifting Standards:
Hill v. Hamilton Regional Police Services Board and the Tort of Negligent Investigation

The recent decision of a majority of the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, produced what is arguably a mixed result for law enforcement officers on the question whether – and in what circumstances – they may be found liable for conducting a negligent investigation. The majority decision, written by Chief Justice McLachlin, made headlines by confirming that the tort of negligent investigation forms a part of Canadian law. The rest of McLachlin C.J.’s judgment is equally important, however, in that it appears to temper the standard of care expected of law enforcement officers by judging the quality of their investigation, not in relation to an ahistorical standard constructed with the benefit of hindsight, but rather in relation to accepted police practices in effect at the time in question. 

The Facts and Procedural History of the Case

A series of ten robberies were committed in Hamilton between December 16, 1994 and January 23, 1995. The crimes became known in police circles as the “Plastic Bag Robberies”, because the culprit used a large, plastic bag to carry away the loot on each occasion. 

Jason George Hill became a suspect during the course of the investigation. The evidence against him included a Crime Stoppers tip, several (tentative) eyewitness identifications, a potential sighting of Hill near the site of one of the robberies, and eyewitness evidence that the Plastic Bag Robber was an aboriginal (like Hill).

The police conducted a lineup consisting of Hill (an aboriginal) and eleven Caucasian foils. Subsequently, he was arrested and charged with ten counts of robbery.

At the time of Hill’s arrest, the police were in possession of potentially exculpatory evidence, and further exculpatory evidence later came to light. Nine of the charges against Hill were eventually dropped. Though only a single charge remained, the Crown proceeded to trial.

Hill was found guilty of robbery in March of 1996. He successfully appealed the conviction and a new trial was ordered. Hill was acquitted at the end of the second trial. 

Hill brought a civil claim against the Police Services Board, alleging that the police investigation had been negligent. Most notably, he objected to the manner in which the lineup had been conducted, and suggested that the police failed to re-investigate the robberies when exculpatory evidence came to light.

At trial, Marshall J. of the Ontario Superior Court of Justice refused to find that the police officers had been negligent in the conduct of the investigation. He found that they had acted in circumstances where there was no recognized police procedure at the time, and that it would be “facile hindsight” to conclude that they were negligent.

Hill appealed. A majority of the Ontario Court of Appeal was not prepared to find that the lineup had been negligent, in light of the lack of uniform rules or procedures relating to lineups at the time. In contrast, two dissenting judges held that a lineup consisting of one aboriginal person and eleven Caucasian foils is “structurally biased with obvious potential for unfairness”.

Hill appealed to the Supreme Court of Canada; the Police Services Board cross-appealed, arguing that there is no tort of negligent investigation in Canadian law. 

A Duty of Care: The Tort of Negligent Investigation

Chief Justice McLachlin began by noting that the relationship between a police officer investigating a crime and the individual who is the subject of that investigation is not historically regarded as the sort of relationship that gives rise to a duty of care. The Chief Justice overcame this obstacle by invoking policy: she argued that critical personal and public interests are engaged in the context of a police investigation. At stake on the personal front “are [the suspect’s] freedom, his reputation and how he may spend a good portion of his life”. The public interest recognizes that “an action for negligent police investigation may assist in responding to failures of the justice system, such as wrongful convictions or institutional racism” (paragraph 36). In McLachlin C.J.’s view, these “high interests support a finding of a proximate relationship giving rise to a duty of care” (paragraph 34).

Accordingly, Chief Justice McLachlin found that police officers do, as a matter of law, owe a duty of care to the individuals who are the subjects of their investigations. This finding was made notwithstanding the argument made by Hill’s opponents that there are significant countervailing policy concerns that negate a duty of care, including the potential for a chilling effect on the investigation of crimes. McLachlin C.J. countered these arguments by holding that policy concerns raised against imposing a duty of care must be “more than speculative”; she required that “a real potential for negative consequences must be apparent”. Judged by this measure, none of the policy considerations raised in opposition to the duty of care provided, in the Chief Justice’s view, “a convincing reason for rejecting a duty of care on police to a suspect under investigation” (paragraph 48). 

The Standard of Care and Implications for Police Investigations

Though the majority decision in Hill is remarkable for its confirmation of a duty of care in the context of police investigations, its description of the standard by which investigating officers are to be judged by the courts in future cases is arguably even more remarkable.

Because police officers, like doctors and lawyers, have the power to exercise discretion, Chief Justice McLachlin holds that the standard of care applied to them must – like the standard of care applied to other professional groups – give “due recognition to the discretion inherent in police investigation”. Thus, she frames the standard of care applicable to police officers engaged in the investigation of crimes in a way that mimics the standard of care applied to other professionals: in her words, “the appropriate standard of care is the overarching standard of a reasonable police officer in similar
circumstances”.

None of this is surprising. What is surprising is the temporal qualification placed upon the concept of “reasonableness” by the majority decision. What is “reasonable” for the purposes of the enquiry is not assumed to be something with an ahistorical nature (in other words, that which is reasonable is always reasonable); rather, “reasonableness” for the purposes of determining police liability is determined by examining the standards in place at the relevant time.

The Chief Justice thus makes the question of what is “reasonable” conduct for an investigating officer historically contingent. In the case before her, McLachlin C.J. asks not whether the conduct of the investigating officers meets the standard of “reasonableness” considered independently of historical circumstances, but rather whether that conduct met the standards of policing that prevailed in 1995. The answer is that it did. With respect to the impugned lineup, the majority acknowledges, interestingly, that “[a] reasonable officer today might be expected to avoid lineups using foils of a different race than the suspect, to avoid both the perception of injustice and the real possibility of unfairness” (paragraph 80). Nonetheless, the Chief Justice, arguing that what is “reasonable” for these purposes is dependent upon historical circumstances, holds that “it cannot be concluded that the…lineup was unreasonable, judged by 1995 standards”. 

The Hill decision is therefore perhaps best viewed as only a partial loss for law enforcement agencies in Canada. While the case does confirm the existence of a tort of negligent investigation, it also adopts a standard of care that requires consideration of historical circumstances and, as a result, likely has the effect of shielding investigating officers from liability in many cases.

What are the implications of the decision for law enforcement agencies? It is implicit in Hill that policing standards evolve over time, and that an investigation carried out today in accordance with policing standards in place in 1995 would be a difficult thing to justify before the courts. Moreover, there is an acknowledgment in Hill that social standards also change. The hints of structural unfairness at play in the Hill lineup might well attract public outcry in the world of 2008. It is therefore important for police services to be current on two fronts: they should make every effort to remain attuned to and in step with advances in policing techniques and standards, as well as with more general changes in society at large, in order to avoid challenges to the manner in which they carry out investigations.

Authors
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knicholson@fieldlaw.com