The Supreme Court of Canada has recognised the tort for incompetent investigation. This area of law has been receiving more attention over the past decade and I expect we will see a case involving a Private Investigator over the next few years.
In October 2007 the Supreme Court ruled on whether there was a cause of action for negligent investigation in Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41. The case involved the police investigation of criminal charges.
The case summary described the facts as follows:
“Hill was investigated by the police, arrested, tried, wrongfully convicted, and ultimately acquitted after spending more than 20 months in jail for a crime he did not commit. Police officers suspected that Hill had committed 10 robberies. The evidence against Hill included a tip, a police officer’s photo identification of Hill, eyewitness identifications, a potential sighting of Hill near the site of one of the robberies, and witness statements that the robber was aboriginal. During their investigation, the police released Hill’s photo to the media. They also asked witnesses to identify the robber from a photo lineup consisting of Hill, who is an aboriginal person, and 11 similar looking Caucasian foils. The police, however, also had information that two Hispanic men, one of whom looks like Hill, were the robbers.
Two similar robberies occurred while Hill was in custody. Hill was charged with 10 counts of robbery but 9 charges were withdrawn before trial. Trial proceeded on the remaining charge because two eyewitnesses remained steadfast in their identifications of Hill. Hill was found guilty of robbery. He appealed and a new trial was ordered. Hill was acquitted at the second trial and brought a civil action that included a claim in negligence against the police based on the conduct of their investigation.”
The court began by clearly stating that a tort for negligent investigation exists and it may succeed.
“I conclude that police are not immune from liability under the Canadian law of negligence, that the police owe a duty of care in negligence to suspects being investigated, and that their conduct during the course of an investigation should be measured against the standard of how a reasonable officer in like circumstances would have acted. The tort of negligent investigation exists in Canada, and the trial court and Court of Appeal were correct to consider the appellant’s action on this basis. The law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.”
The court also addressed concern about any chill on the actions of the police by stating:
“First, the argument that a duty to take reasonable care toward suspects conflicts with an overarching duty to investigate crime is tenuous. The officer’s duty to the public is not to investigate in an unconstrained manner. It is a duty to investigate in accordance with the law….
“In theory, it is conceivable that police might become more careful in conducting investigations if a duty of care in tort is recognized. However, this is not necessarily a bad thing. The police officer must strike a reasonable balance between cautiousness and prudence on the one hand, and efficiency on the other. Files must be closed, life must move on, but care must also be taken. All of this is taken into account, not at the stage of determining whether police owe a duty of care to a particular suspect, but in determining what the standard of that care should be.”
However, the court concluded that there was no negligence:
“I therefore conclude that although Detective Loft’s decision not to reinvestigate can be faulted, judged in hindsight and through the lens of today’s awareness of the danger of wrongful convictions, it has not been established that Detective Loft breached the standard of a reasonable police officer similarly placed.”
The full text of the Hill case maybe found at: www.canlii.org/en/ca/scc/doc/2007/2007scc41/2007scc41.html.
its rather strange that he was convicted on such a limited level of evidence. Most criminal lawyers could have instilled some sense of doubt into a jury but to be convicted by circumstantial evidence and a partial eye witness identification is rather poor prosecution. No wonder he sued, that ruling was BS.