October 05, 2007 Canadian High Court lets suspects sue police for negligence 6-3 decision called `groundbreaking' but some fear it could have `chilling effect' on law enforcement by Tonda MacCharles, Ottawa Bureau OTTAWA–The Supreme Court of Canada, in a 6-3 decision, broke new legal ground yesterday by ruling suspects can sue police investigators for negligence in cases of shoddy detective work. In a judgment that said police officers are not immune from civil liability, the court set its eyes squarely on combating wrongful convictions and institutional racism, requiring police to face the same legal consequences as other professionals who fail in their public duties. "Police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness," wrote Chief Justice Beverley McLachlin. The standard police must meet is not "perfection," said McLachlin. "Minor errors or errors in judgment" will not necessarily subject police to civil liability, said the court in rejecting arguments that allowing civil actions for negligence would open the floodgates to lawsuits against police and have a chilling effect on law enforcement. Until now, for the most part in Canada, people who are suspects, as opposed to crime victims, could not sue police for simple negligence. (Jane Doe, a victim of the so-called Balcony Rapist, successfully sued Toronto police for negligence and was awarded $220,000 in 1998.) The exceptions were Quebec where the civil code has for about 50 years permitted such claims, and Ontario as a result of an Ontario Court of Appeal ruling involving Ottawa police in the late 1990s. But this is the first time the high court has issued its interpretation of what legal remedies common law provides plaintiffs. The ruling will apply across Canada. The high court said it was not enough that plaintiffs only have access to "malicious prosecution" claims or claims of false arrest or false imprisonment, where the requirement is to show bad faith or malicious intent. The ruling was "personally very disappointing" for Jason George Hill, the Hamilton man who brought the case to the Supreme Court. The ruling means Hill, an aboriginal man now in his 40s, who was exonerated on a bank robbery charge that cost him 20 months behind bars, lost his bid to sue the Hamilton-Wentworth police. McLachlin wrote that Hill was the victim of an "unfortunate series of events," but the actions of Hamilton-Wentworth police didn't amount to negligence. Another man, Francisco Sotomayer, was ultimately convicted in the case. The court was unanimous in ruling against Hill based on the facts of his case. They split 6-3, however, on the broader issue of whether the public should be able to sue at all in such circumstances. McLachlin, writing for the majority, concluded suspects can sue under common-law tests of negligence – a finding that could have a major impact because it's easier to prove negligence than it is to prove malicious prosecution, the main alternative available to the public. "The existing remedies for wrongful conviction are incomplete and may leave a victim of negligent police investigation without legal recourse," she wrote. "To deny a remedy (on grounds of negligence) is, quite literally, to deny justice." Hill's legal team hailed the ruling as a "huge victory for Canadians and the Canadian legal system." "We're now at the forefront of all common-law jurisdictions – we're ahead of the Americans, the English and the Australians – in holding police accountable for shoddy investigation work," said lawyer Sean Dewart. "When that leads to a wrongful conviction, the police will have to account for themselves. And that's new. That's groundbreaking. And that's a great thing." Julian Falconer, who intervened in the case on behalf of the advocacy group, the Association in Defence of the Wrongly Convicted, said the judgment is "of huge significance." "It puts to rest the notion that somehow police in the pursuit of crime should be immune from the same level of accountability all other public officials are subject to." But David Boghosian, the lawyer for the Hamilton officers involved, said the ruling was "disappointing" and will create uncertainty for police. "It confirms police can be sued for simple negligence when historically in Canada and elsewhere in the common-law world, police were insulated by the requirement that bad faith or improper purpose be shown before they could be found liable. So that barrier has been torn down," Boghosian said. On the other hand, he said, the court set such a high standard for plaintiffs that it will be difficult to prove their case. Boghosian and intervenors like the Canadian Police Association and the Canadian Association of Chiefs of Police had warned it could have a "chilling effect" on police if officers feared they would be held civilly liable. That argument found some sympathy with the three judges who dissented. Justices Louise Charron, Michel Bastarache and Marshall Rothstein said it would be wrong to give legal weight to claims of "negligent investigation." Charron argued that society has an interest in police aggressively investigating crimes, and "a suspect will always suffer some harm from being targeted in an investigation, even if ultimately exonerated." Charron said saddling police with a potential civil liability would "inevitably pull the police away from targeting" individuals as suspects and lead to an "overly cautious approach" by police. McLachlin, on behalf of the majority, including Justices Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fis and Rosalie Abella, conceded the ruling may cause police to act more carefully. "However, this is not necessarily a bad thing," she wrote. In the case of Hill, arrested by police as the "plastic bag bandit" responsible for 10 robberies in late 1994 and early 1995, the court found police did not act so egregiously as to be found civilly liable. Police had acted on a Crime Stoppers tip, eyewitness evidence, and the belief the robberies were the work of one crook. Investigators released Hill's photo to the media, and conducted a photo line-up for witnesses that consisted of Hill as the only aboriginal face and 11 similar looking Caucasian men. Even after two more similar robberies occurred while Hill was in custody, and another Crime Stoppers tip suggested two Hispanic men were responsible, police dropped some, but not all of the charges. The Crown prosecuted him on one count. Hill was convicted. He appealed, and was ultimately acquitted after winning a retrial.

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