Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., (2007) 368 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 10, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2007), 368 N.R. 1 (SCC);2007 SCC 41

Hill v. Police Services Bd. (2007), 368 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.R. TBEd. OC.011

Jason George Hill (appellant/respondent on cross-appeal) v. Hamilton-Wentworth Regional Police Services Board, Jack Loft, Andrea McLaughlin, Joseph Stewart, Ian Matthews and Terry Hill (respondents/appellants on cross-appeal) and Attorney General of Canada, Attorney General of Ontario, Aboriginal Legal Services of Toronto Inc., Association in Defence of the Wrongly Convicted, Canadian Association of Chiefs of Police, Criminal Lawyers' Association (Ontario), Canadian Civil Liberties Association, Canadian Police Association and Police Association of Ontario (intervenors)

(31227; 2007 SCC 41; 2007 CSC 41)

Indexed As: Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

October 4, 2007.

Summary:

Hill was originally charged with 10 counts of robbery. All charges were withdrawn except for one count. Hill was ultimately acquitted of that charge at a second trial after he had spent more than 20 months in jail. Hill brought an action against the Hamilton-Wentworth Regional Police Services Board and several police officers involved in the robbery investigation, claiming malicious prosecution, negligent investigation and breach of Charter rights.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 807, dismissed the action. Hill appealed. At issue was whether there was a tort of negligent investigation relating to police officers and whether the court erred by concluding that the conduct of the police officers did not constitute either malicious prosecution or negligent investigation.

The Ontario Court of Appeal, Feldman and LaForme, JJ.A., dissenting in part, in a decision reported at 202 O.A.C. 310, dismissed the appeal. The court held that the trial judge did not err in dismissing the claims of malicious prosecution. The court also affirmed that there was a tort of negligent investigation relating to police officers. However, the court split on the application of the tort of negligent investigation to the facts of this case. The majority held that the requisite standard of care was not breached and that the police should not be held liable in negligence. In dissent, Feldman and LaForme, JJ.A., found that aspects of the police conduct were negligent. Hill appealed, arguing that the majority of the Court of Appeal erred in finding that the police investigation leading to his arrest and prosecution was not negligent. The police cross-appealed, arguing that there was no tort of negligent investigation in Canadian law.

The Supreme Court of Canada dismissed the appeal and the cross-appeal. The majority of the court held that the tort of negligent investigation existed in Canada and that the police conduct in this case met the requisite standard of care and was not negligent. Charron, J. (Bastarache and Rothstein, JJ., concurring), dissenting on the cross-appeal, held that the tort of negligent investigation should not be recognized in Canada.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Hill brought an action against the police for negligent investigation - The trial judge dismissed the action and the Ontario Court of Appeal dismissed Hill's appeal - Hill appealed - He argued, inter alia, that his appeal should be allowed because the trial judge's reasons were inadequate - The Supreme Court of Canada rejected the argument - The court stated that "In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable" - The court concluded that while it might have been preferable for the trial judge to have provided a more comprehensive treatment of the allegations of negligence and the dismissal of the action, the reasons were sufficient to allow for meaningful appellate review when considered in light of the extensive trial record - Hill's functional need to know why the case was decided against him was met - See paragraphs 99 to 104.

Police - Topic 3290

Powers - Identification of criminals - Line-up - In 1995, Hill was arrested and charged with 10 counts of robbery - All charges were withdrawn except for one count - Hill was ultimately acquitted of that charge at a second trial - Hill brought an action against the Hamilton-Wentworth Regional Police Services Board and several police officers involved in the robbery investigation, claiming negligent investigation - Hill alleged, inter alia, structural bias in the photo lineup in which he was identified - The photo array consisted of Hill (an aboriginal), and 11 Caucasian foils - The Supreme Court of Canada stated that "The first question is whether this photo lineup met the standard of a reasonable officer investigating an offence in 1995. The trial judge accepted expert evidence that there were 'no rules' and 'a great deal of variance in practice right up to the present time' in relation to photo lineups. These findings of fact have not been challenged. It follows that on the evidence adduced, it cannot be concluded that the photo lineup was unreasonable, judged by 1995 standards. This said, the practice followed was not ideal. A reasonable officer today might be expected to avoid lineups using foils of a different race than the suspect" - See paragraphs 79 to 80.

Police - Topic 3290

Powers - Identification of criminals - Line-up - In 1995, Hill was arrested and charged with 10 counts of robbery - All charges were withdrawn except for one count - Hill was ultimately acquitted of that charge at a second trial - Hill brought an action against the Hamilton-Wentworth Regional Police Services Board and several police officers involved in the robbery investigation, claiming negligent investigation - Hill alleged, inter alia, structural bias in the photo lineup in which he was identified - The photo array consisted of Hill (an aboriginal), and 11 Caucasian foils - The Supreme Court of Canada held that the photo lineup was not unreasonable, judged by 1995 standards - The court further stated that in any event, it was established that the lineup's racial composition did not lead to unfairness - A racially skewed lineup was structurally biased only if you could tell that the one person was non-Caucasian and assuming the suspect was the one that was standing out - Although the suspects were classified as being of a different race by the police computer system, at least some of them appeared to have similar skin tones and similar facial features to Hill - On that evidence, the trial judge had concluded that the lineup was not in fact structurally biased - See paragraphs 79 to 81.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada, that the police owed a duty of care in negligence to suspects being investigated, and that the standard of care was that of a reasonable officer in like circumstances - The court stated that its judgment was concerned only with the very particular relationship between a police officer and a particularized suspect that he or she was investigating - There were particular considerations relevant to proximity and policy applicable to that relationship - The considerations informing the analysis of proximity and policy might be different in the context of other relationships involving the police, for example, the relationship between the police and a victim - If a new relationship was alleged to attract liability of the police in negligence in a future case, it would be necessary to engage in a fresh Anns analysis, sensitive to the different considerations which might obtain when police interacted with persons other than suspects that they were investigating - See paragraph 27.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - Foreseeability was clearly made out and the following considerations led the court to conclude that the relationship between an investigating police officer and a particular suspect was close and proximate such that a prima facie duty of care should be recognized: the relationship between the police and a suspect identified for investigation was personal and was close and direct; the targeted suspect had a critical personal interest in the conduct of the investigation; the existing remedies for wrongful prosecution and conviction were incomplete and could leave a victim of negligent police investigation without legal recourse; the personal interest of the suspect in the conduct of the investigation was enhanced by a public interest; a duty of care by police officers to suspects under investigation was consistent with the values and spirit underlying the Charter, with its emphasis on liberty and fair process - See paragraphs 28 to 39.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - In concluding that the relationship between an investigating police officer and a particular suspect was close and proximate such that a prima facie duty of care should be recognized, the court considered, inter alia, that the existing remedies for wrongful prosecution and conviction were incomplete and could leave a victim of negligent police investigation without legal recourse - The court stated that "The torts of false arrest, false imprisonment and malicious prosecution do not provide an adequate remedy for negligent acts. Government compensation schemes possess their own limits, both in terms of eligibility and amount of compensation. As the Court of Appeal pointed out, an important category of police conduct with the potential to seriously affect the lives of suspects will go unremedied if a duty of care is not recognized" - See paragraph 35.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - The court stated that "It is argued that recognition of liability for negligent investigation would produce a conflict between the duty of care that a police officer owes to a suspect and the police's officer duty to the public to prevent crime, that negates the duty of care. I do not agree. First, it seems to me doubtful that recognizing a duty of care to suspects will place police officers under incompatible obligations. Second, on the test set forth in Cooper and subsequent cases, conflict or potential conflict does not in itself negate a prima facie duty of care; the conflict must be between the novel duty proposed and an 'overarching public duty', and it must pose a real potential for negative policy consequences. Any potential conflict that could be established here would not meet these conditions. First, the argument that a duty to take reasonable care toward suspects conflicts with an overarching duty to investigate crime is tenuous ... Second, even if a potential conflict could be posited, that would not automatically negate the prima facie duty of care. The principle established in Cooper and its progeny is more limited. A prima facie duty of care will be negated only when the conflict, considered together with other relevant policy considerations, gives rise to a real potential for negative policy consequences" - See paragraphs 40 to 43.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada - The court concluded that the relationship between an investigating police officer and a particular suspect was close and proximate such that a prima facie duty of care should be recognized and there were no policy considerations which negated that duty of care - The respondents and the interveners had argued that the following policy considerations negated a duty of care: the "quasi- judicial" nature of police work; the potential for conflict between a duty of care in negligence and other duties owed by police; the need to recognize a significant amount of discretion present in police work; the need to maintain the standard of reasonable and probable grounds applicable to police conduct; the potential for a chilling effect on the investigation of crime; and the possibility of a flood of litigation against the police - The court stated that "policy concerns raised against imposing a duty of care must be more than speculative; a real potential for negative consequences must be apparent. Judged by this standard, none of these considerations provide a convincing reason for rejecting a duty of care on police to a suspect under investigation" - See paragraphs 47 to 48.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - The court rejected an argument that the quasi- judicial nature of police work was a policy consideration which negated a duty of care - The fact-based investigative character of the police task distanced it from a judicial or quasi-judicial role - The court stated that "The possibility of holding police civilly liable for negligent investigation does not require them to make judgments as to legal guilt or innocence before proceeding against a suspect. Police are required to weigh evidence to some extent in the course of an investigation ... But they are not required to evaluate evidence according to legal standards or to make legal judgments. That is the task of prosecutors, defence attorneys and judges. This distinction is properly reflected in the standard of care imposed, once a duty is recognized. The standard of care required to meet the duty is not that of a reasonable lawyer or judge, but that of a reasonable police officer" - See paragraphs 49 to 50.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - The court stated, inter alia, that "The discretion inherent in police work fails to provide a convincing reason to negate the proposed duty of care. It is true that police investigation involves significant discretion and that police officers are professionals trained to exercise this discretion and investigate effectively. However, the discretion inherent in police work is taken into account in formulating the standard of care, not whether a duty of care arises. The discretionary nature of police work therefore provides no reason to deny the existence of a duty of care in negligence. Police, like other professionals, exercise professional discretion. No compelling distinction lies between police and other professionals on this score ... Professionals are permitted to exercise discretion. What they are not permitted to do is to exercise their discretion unreasonably. This is in the public interest" - See paragraphs 51 to 53.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - The court rejected an argument that the need to maintain the standard of reasonable and probable grounds applicable to police conduct was a policy consideration which negated the duty of care - The court stated that "Recognizing a duty of care in negligence by police to suspects does not raise the standard required of the police from reasonable and probable grounds to some higher standard, as alleged. The requirement of reasonable and probable grounds for arrest and prosecution informs the standard of care applicable to some aspects of police work, such as arrest and prosecution, search and seizure, and the stopping of a motor vehicle. A flexible standard of care appropriate to the circumstances, discussed more fully below, answers this concern" - See paragraph 55.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - The court rejected an argument that the potential for a chilling effect on the investigation of crime was a policy consideration which negated the duty of care - It had not been established that recognizing a duty of care in tort would have a chilling effect on policing, by causing police officers to take an unduly defensive approach to investigation of criminal activity - The record did not support the conclusion that recognizing potential liability in tort significantly changed the behaviour of police - The court also noted that many police officers were indemnified from personal civil liability in the course of exercising their professional duties, reducing the prospect that their fear of civil liability would chill crime prevention - See paragraphs 56 to 59.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - The court rejected an argument that the possibility of a flood of litigation against the police was a policy consideration which negated the duty of care - The court stated that "Recognizing sufficient proximity in the relationship between police and suspect to ground a duty of care does not open the door to indeterminate liability. Particularized suspects represent a limited category of potential claimants. The class of potential claimants is further limited by the requirement that the plaintiff establish compensable injury caused by a negligent investigation. Treatment rightfully imposed by the law does not constitute compensable injury. These considerations undermine the spectre of a glut of jailhouse lawsuits for negligent police investigation" - The record also provided no basis for concluding that there would be a flood of litigation against the police if a duty of care was recognized - See paragraphs 60 to 61.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - With respect to the risk that guilty persons who were acquitted might unjustly recover in tort, the court stated that the possibility of injustice was present in any tort action - The court stated that "The first safeguard is the requirement that the plaintiff prove every element of his or her case. Any suspect suing the police bears the burden of showing that police negligence in the course of an investigation caused harm compensable at law. This means that the suspect must establish through evidence that the damage incurred, be it a conviction, imprisonment, prosecution or other compensable harm, would not have been suffered but for the police's negligent investigation. Evidence going to the factual guilt or innocence of the suspect, including the results of any criminal proceedings that may have occurred, may be relevant to this causation inquiry ... The second safeguard is the right of appeal. These safeguards, not the categorical denial of the right to sue in tort, are the law's response to the ever-present possibility of error in the legal process" - See paragraphs 62 to 64.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - With respect to loss or damage, the court stated that "It is not disputed that imprisonment resulting from a wrongful conviction constitutes personal injury to the person imprisoned. Indeed, other forms of compensable damage without imprisonment may suffice; a claimant's life could be ruined by an incompetent investigation that never results in imprisonment or an unreasonable investigation that does not lead to criminal proceedings. Wrongful deprivation of liberty has been recognized as actionable for centuries and is clearly one of the possible forms of compensable damage that may arise from a negligent investigation. There may be others" - See paragraph 91.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - With respect to loss or damage, the court stated that "lawful pains and penalties imposed on a guilty person do not constitute compensable loss. It is important as a matter of policy that recovery under the tort of negligent investigation should only be allowed for pains and penalties that are wrongfully imposed. The police must be allowed to investigate and apprehend suspects and should not be penalized for doing so under the tort of negligent investigation unless the treatment imposed on a suspect results from a negligent investigation and causes compensable damage that would not have occurred but for the police's negligent conduct. The claimant bears the burden of proving that the consequences of the police conduct relied upon as damages are wrongful in this sense if they are to recover" - See paragraph 92.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - In 1995, Hill was arrested and charged with 10 counts of robbery - All charges were withdrawn except for one count - Hill was ultimately acquitted of that charge at a second trial - Hill brought an action against the Hamilton-Wentworth Regional Police Services Board and several police officers involved in the robbery investigation, claiming negligent investigation - At the pre-arrest stage, Hill alleged: witness contamination as the result of publishing his photo; failure to make proper records of events and interviews with witnesses; interviewing two witnesses together and with a photo of Hill on the desk; and structural bias in the photo lineup in which Hill was identified - The Supreme Court of Canada stated that these complaints "while questionable, were not sufficiently serious on the record viewed as a whole to constitute a departure from the standard of a reasonable police officer in the circumstances. The publication of Hill's photo, the somewhat incomplete record of witness interviews, the fact that two witnesses were interviewed together and the failure to blind-test the photos put to witnesses are not good police practices, judged by today's standards. But the evidence does not establish that a reasonable officer in 1995 would not have followed similar practices in similar circumstances. Nor is it clear that if these incidents had not occurred, Hill would not have been charged and convicted. It follows that the individual officers involved in these incidents cannot be held liable to Hill in negligence" - See paragraph 78.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - In 1995, Hill was arrested and charged with 10 counts of robbery - From the beginning, the police had taken the view that the 10 robberies were committed by the same person, branded the "plastic bag robber" - All charges against Hill were withdrawn except for one count - Hill was ultimately acquitted of that charge at a second trial - Hill brought an action against the Hamilton-Wentworth Regional Police Services Board and several police officers involved in the robbery investigation, claiming negligent investigation - At the post-arrest stage, Hill alleged that Detective Loft, who was in charge of the investigation of the robberies, failed to reinvestigate after evidence came to light that suggested the robber was not Hill, but a different man - Hill argued that by failing to raise the matter with the Crown and ask that they halt the case for purposes of reinvestigation, and instead allowing it to proceed to trial, Detective Loft failed to act as a reasonable officer similarly situated - The Supreme Court of Canada concluded 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" - See paragraphs 82 to 89.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - [See both Police - Topic 3290, all Torts - Topic 48 and Torts - Topic 54 ].

Police - Topic 5285

Actions against police - Defences - Limitation of actions - In 1995, Hill was arrested and charged with 10 counts of robbery - All charges were withdrawn except for one count - Hill was ultimately acquitted of that charge at a second trial - Hill brought an action against the Hamilton-Wentworth Regional Police Services Board and several police officers involved in the robbery investigation, claiming negligent investigation - The defendants claimed that Hill's action was statute-barred by the six month limitation period set out in s. 7(1) of the Ontario Public Authorities Protection Act - The Supreme Court of Canada held that the limitation period for negligent investigation began to run when the cause of action was complete - That required proof of a duty of care, breach of the standard of care, compensable damage, and causation - The limitation period in this case did not start to run until December 20, 1999, when Hill, after a new trial, was acquitted of all charges of robbery - Hill's action was commenced on June 19, 2000, within the six- month limitation period set out in the Act - See paragraphs 95 to 98.

Torts - Topic 48

Negligence - Standard of care - Particular persons and relationships - Police officers - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - The court further held that a number of considerations supported the conclusion that the standard of care was that of a reasonable police officer in all the circumstances - First, the standard of a reasonable police officer in all the circumstances provided a flexible overarching standard that covered all aspects of investigatory police work and appropriately reflected its realities - Second, the general rule was that the standard of care in negligence was that of the reasonable person in similar circumstances - Third, the common law factors relevant to determining the standard of care confirmed the reasonable officer standard - Fourth, the nature and importance of police work reinforced a standard of the reasonable police officer in similar circumstances - Finally, authority supported the standard of the reasonable police officer similarly placed - The preponderance of case law dealing with professionals had applied the standard of the reasonably competent professional in like circumstances - See paragraphs 67 to 72.

Torts - Topic 48

Negligence - Standard of care - Particular persons and relationships - Police officers - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - The court concluded that "the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. 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 - circumstances that may include urgency and deficiencies of information" - See paragraph 73.

Torts - Topic 48

Negligence - Standard of care - Particular persons and relationships - Police officers - In 1995, Hill was arrested and charged with 10 counts of robbery - All charges were withdrawn except for one count - Hill was ultimately acquitted of that charge at a second trial - Hill brought an action against the Hamilton-Wentworth Regional Police Services Board and several police officers involved in the robbery investigation, claiming negligent investigation - The Supreme Court of Canada held that the defendant police officers owed a duty of care to Hill which required them to meet the standard of a reasonable officer in similar circumstances - The court stated that "We must consider the conduct of the investigating officers in the year 1995 in all of the circumstances, including the state of knowledge then prevailing. Police practices, like practices in other professions, advance as time passes and experience and understanding accumulate. Better practices that developed in the years after Hill's investigation are therefore not conclusive. By extension, the conclusion that certain police actions did not violate the standard of care in 1995 does not necessarily mean that the same or similar actions would meet the standard of care today or in the future. We must also avoid the counsel of perfection; the reasonable officer standard allows for minor mistakes and misjudgments. Finally, proper scope must be accorded to the discretion police officers properly exercise in conducting an investigation" - See paragraph 77.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The Supreme Court of Canada held that the tort of negligent investigation existed in Canada and that the police owed a duty of care in negligence to suspects being investigated - With respect to the requirement of a causal connection, the court stated that "Negligent police investigation may cause or contribute to wrongful conviction and imprisonment, fulfilling the legal requirement of causal connection on a balance of probabilities. The starting point is the usual 'but for' test. If, on a balance of probabilities, the compensable damage would not have occurred but for the negligence on the part of the police, then the causation requirement is met. Cases of negligent investigation often will involve multiple causes. Where the injury would not have been suffered 'but for' the negligent police investigation the causation requirement will be met even if other causes contributed to the injury as well. On the other hand, if the contributions of others to the injury are so significant that the same damage would have been sustained even if the police had investigated responsibly, causation will not be established" - See paragraphs 93 to 94.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - The Supreme Court of Canada stated that "The principle that animates the first stage of the Anns test - to determine whether the relationship is in principle sufficiently close or 'proximate' to attract legal liability - governs the nature of considerations that arise at this stage. 'The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant' ... By contrast, the final stage of Anns is concerned with 'residual policy considerations' which 'are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally' ... In practice, there may be overlap between stage one and stage two considerations. We should not forget that stage one and stage two of the Anns test are merely a means to facilitate considering what is at stake. The important thing is that in deciding whether a duty of care lies, all relevant concerns should be considered" - See paragraph 31.

Torts - Topic 79

Negligence - Duty of care - Factors limiting scope of duty of care - [See fifth, sixth, seventh, eighth, ninth and tenth Police - Topic 5031 ].

Torts - Topic 9154

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Police officers and authorities - [See first and second Police - Topic 5031 ].

Cases Noticed:

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), appld. [paras. 20, 116].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [paras. 20, 116].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [paras. 20, 116].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 19 C.C.L.T.(3d) 163; 233 D.L.R.(4th) 193; 11 Admin. L.R.(4th) 45; 70 O.R.(3d) 253; 2003 CarswellOnt 4851; 2003 SCC 69, refd to. [paras. 20, 116].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, consd. [paras. 20, 116].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 22].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241, refd to. [para. 24].

Jane Doe v. Board of Police Commissioners of Metropolitan Toronto et al. (1998), 60 O.T.C. 321; 39 O.R.(3d) 487; 160 D.L.R.(4th) 697; 126 C.C.C.(3d) 12; 43 C.C.L.T.(2d) 123 (Gen. Div.), refd to. [paras. 27, 126].

Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474; 27 N.R. 1, refd to. [para. 50].

Brooks v. Commissioner of Police of the Metropolis et al., [2005] 1 W.L.R. 1495; 338 N.R. 1; [2005] UKHL 24, refd to. [paras. 57, 120].

Hill Estate v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238; 102 N.R. 241 (H.L.), refd to. [paras. 57, 120].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 64].

Rufo v. Simpson (2001), 103 Cal. Rptr.2d 492 (Ct. App.), refd to. [para. 64].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 70].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 70].

Jauvin v. Québec (Procureur général) et al., [2004] R.R.A. 37 (Que. C.A.), leave to appeal denied (2004), 330 N.R. 391 (S.C.C.), refd to. [paras. 72, 183].

Jauvin v. Québec (Attorney General) et al. - see Jauvin v. Québec (Procureur général) et al.

Montréal (Communauté urbaine) et al. v. André et al., [2003] R.J.Q. 720 (C.A.), leave to appeal denied (2003), 320 N.R. 395 (S.C.C.), consd. [para. 183]; refd to. [para. 72].

Lacombe v. André - see Montréal (Communauté urbaine) et al. v. André et al.

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262; 90 D.L.R.(4th) 7; 10 C.C.L.T.(2d) 101; 9 C.P.C.(3d) 78, refd to. [para. 73].

Lapointe v. Hôpital Le Gardeur - see Lapointe v. Chevrette.

Folland v. Reardon (2005), 74 O.R.(3d) 688 (C.A.), refd to. [para. 73].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298; 210 D.L.R.(4th) 608; 50 C.R.(5th) 104; 2002 CarswellNfld 74; 2002 SCC 26, refd to. [para. 100].

Beckstead v. Ottawa (City) Chief of Police (1995), 37 O.R.(3d) 64 (Gen. Div.), affd. [1997] O.A.C. Uned. 568; 37 O.R.(3d) 62 (C.A.), consd. [para. 119].

Reynen v. Canada et al. (1993), 70 F.T.R. 158 (T.D.), refd to. [para. 119].

McGillivary v. New Brunswick and Moncton (City) (1994), 149 N.B.R.(2d) 311; 381 A.P.R. 311; 116 D.L.R.(4th) 104 (C.A.), refd to. [para. 119].

Al's Steak House and Tavern Inc. et al. v. Deloitte & Touche (1994), 20 O.R.(3d) 673 (Gen. Div.), refd to. [para. 119].

Collie Woollen Mills Ltd. et al. v. Canada (1996), 107 F.T.R. 93 (T.D.), refd to. [para. 119].

Stevens v. Fredericton (City) (1999), 212 N.B.R.(2d) 264; 541 A.P.R. 264 (Q.B.), refd to. [para. 119].

Dix v. Canada (Attorney General) et al. (2002), 315 A.R. 1; 2002 ABQB 580, refd to. [para. 119].

Kleysen et al. v. Canada (Attorney General) et al. (2001), 159 Man.R.(2d) 17; 2001 MBQB 205, refd to. [para. 119].

Avery v. Canada (Attorney General), 2004 NBQB 372, refd to. [para. 119].

A.A.D. et al. v. Tanner et al. (2004), 188 Man.R.(2d) 15; 2004 MBQB 213, refd to. [para. 119].

Alexandrou v. Oxford, [1993] 4 All E.R. 328 (C.A.), refd to. [para. 120].

Osman v. Ferguson, [1993] 4 All E.R. 344 (C.A.), refd to. [para. 120].

Cowan v. Chief Constable for Avon and Somerset Constabulary, [2001] E.W.J. No. 5088; [2001] EWCA Civ. 1699, refd to. [para. 120].

Calveley et al. v. Chief Constable of the Merseyside Police, [1989] 1 All E.R. 1025; [1989] A.C. 1228; 103 N.R. 125 (H.L.), refd to. [para. 120].

Emanuele v. Hedley (1997), 137 F.L.R. 339 (S.C.A.C.T.), refd to. [para. 121].

Courtney v. Tasmania (State), [2000] TASSC 83, refd to. [para. 121].

Wilson v. State of New South Wales (2001), 53 N.S.W.L.R. 407; [2001] NSWSC 869, refd to. [para. 121].

Tame v. New South Wales (2002), 191 A.L.R. 449; [2002] HCA 35, refd to. [para. 121].

Gruber v. Backhouse (2003), 190 F.L.R. 122; [2003] ACTSC 18, refd to. [para. 121].

Duke v. New South Wales (State), [2005] NSWSC 632, refd to. [para. 121].

Gregory v. Gollan, [2006] NZHC 426, refd to. [para. 121].

Sullivan v. Moody (2001), 183 A.L.R. 404; [2001] HCA 59, refd to. [para. 121].

Cran v. State of New South Wales (2004), 62 N.S.W.L.R. 95; [2004] NSWCA 92, leave to appeal denied [2005] HCA Trans 21, refd to. [para. 121].

Simpson v. Attorney General (Baigent's Case), [1994] 3 N.Z.L.R. 667 (C.A.), refd to. [para. 121].

Gregoire v. Biddle (1949), 177 F.2d 579 (2nd Cir.), refd to. [para. 122].

Thompson v. Olson (1986), 798 F.2d 552 (1st Cir.), refd to. [para. 122].

Kompare v. Stein (1986), 801 F.2d 883 (7th Cir.), refd to. [para. 122].

Kelly v. Curtis (1994), 21 F.3d 1544 (11th Cir.), refd to. [para. 122].

Orsatti v. New Jersey State Police (1995), 71 F.3d 480 (3rd Cir.), refd to. [para. 122].

Schertz v. Waupaca County (1989), 875 F.2d 578 (7th Cir.), refd to. [para. 122].

Castle Rock v. Gonzales (2005), 125 S.Ct. 2796, refd to. [para. 122].

Jane Doe v. Board of Police Commissioners of Metropolitan Toronto et al. (1990), 40 O.A.C. 161; 74 O.R.(2d) 225; 72 D.L.R.(4th) 580; 5 C.C.L.T.(2d) 77 (Div. Ct.), refd to. [para. 130].

Dorset Yacht Co. v. Home Office, [1970] A.C. 1004 (H.L.), refd to. [para. 142].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 150].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 150].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [para. 153].

Statutes Noticed:

Public Authorities Protection Act, R.S.O. 1990, c. P-38, sect. 7(1) [para. 95].

Authors Noticed:

Blackstone, William, Commentaries on the Laws of England (1769), Book IV, c. 27, p. 352 [para. 107].

Canada, Department of Justice, Federal/Provincial/Territorial Heads of Prosecutions Committee Working Group, Report on the Prevention of Miscarriages of Justice (2004), generally [para. 36].

Canada, Department of Justice, Guidelines: Compensation for Wrongfully Convicted and Imprisoned Persons (1988), generally [para. 158].

Canada, Royal Commission on Aboriginal Peoples Report, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996), generally [para. 80].

Cory Report - see Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Sophonow Report) (2001).

David Milgaard Inquiry - see Saskatchewan, Commission of Inquiry into the Wrongful Conviction of David Milgaard.

Donald Marshall, Jr., Prosecution Report - see Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution Report, Findings and Recommendations (1989).

Garrison, Arthur H., Law Enforcement Civil Liability under Federal Law and Attitudes on Civil Liability: A Survey of University, Municipal and State Police Officers (1995), 18 Police Studies 19, generally [para. 57].

Hall, Daniel E., Ventura, Lois A., and Yung, H. Lee, Suing Cops and Correction Officers: Officer attitudes and experiences about civil liability (2003), 26 Policing: An International Journal of Police Strategies & Management 529, pp. 544, 545 [para. 57].

Hughes, Tom, Police officers and civil liability: "the ties that bind"? (2001), 24 Policing: An International Journal of Police Strategies & Management 240, pp. 253, 254, 256, 257, 258 [para. 57].

Kaiser, H. Archibald, Wrongful Conviction and Imprisonment: Towards an End to the Compensatory Obstacle Course (1989), 9 Windsor Y.B. Acces Just. 96, pp. 112 [para. 180]; 139 [para. 157].

Kaufman Report - see Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin.

Klar, Lewis N., Tort Law (3rd Ed. 2003), pp. 201 to 204 [para. 90]; 306 [para. 69]; 349 [para. 72]; 359 [para. 73].

Klar, Lewis N., Linden, Allan M., Cherniak, Earl A., and Kryworuk, Peter W., Remedies in Tort (1987) (2006 Looseleaf Update, Release 5), vol. 4, p. 27, para. 217, fn. 23 [para. 96].

Lamer Commission Report - see Newfoundland and Labrador, The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes.

LeSage Report - see Manitoba, Department of Justice, Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell.

MacKinnon, Peter, Costs and Compensation for the Innocent Accused (1988), 67 Can. Bar Rev. 489, pp. 497, 498 [para. 157].

Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Sophonow Report) (2001), generally [para. 187]; pp. 10 [paras. 36, 71]; 101 to 103 [para. 37].

Manitoba, Department of Justice, Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (LeSage Report) (2007), generally [para. 187].

Mew, Graeme, The Law of Limitations (2nd Ed. 2004), p. 148 [para. 96].

Newfoundland and Labrador, The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes (2006), generally [para. 187]; p. 71 [para. 36].

Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution Report, Findings and Recommendations (1989), generally [para. 187].

Ontario, Attorney General Report, The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), generally [para. 187]; pp. 25, 26, 30, 31, 34, 35, 36, 1095, 1096, 1098, 1099, 1101, 1124 [para. 36].

Saskatchewan, Commission of Inquiry into the Wrongful Conviction of David Milgaard, generally [para. 187].

Sophonow Report - see Manitoba, Department of Justice, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation.

Vaughn, Michael S., Cooper, Tab W., and del Carmen, Rolando V., Assessing Legal Liabilities in Law Enforcement: Police Chiefs' Views (2001), 47 Crime & Delinquency 3, generally [para. 57].

Wier, Tony, Tort Law (2002), pp. 44 to 51 [para. 90].

Counsel:

Sean Dewart, Louis Sokolov and Charlene Wiseman, for the appellant/respondent on cross-appeal;

David G. Boghosian and Courtney Raphael, for the respondents/appellants on cross- appeal;

Anne M. Turley, for the intervenor, the Attorney General of Canada;

M. Michele Smith and Heather C. Mackay, for the intervenor, the Attorney General of Ontario;

Jonathan Rudin and Kimberly R. Murray, for the intervenor, the Aboriginal Legal Services of Toronto Inc.;

Julian N. Falconer and Sunil S. Mathai, for the intervenor, the Association in Defence of the Wrongly Convicted;

Leona K. Tesar and Gregory R. Preston, for the intervenor, the Canadian Association of Chiefs of Police;

Mark J. Sandler and Joseph Di Luca, for the intervenor, the Criminal Lawyers' Association (Ontario);

Bradley E. Berg and Allison A. Thornton, for the intervenor, the Canadian Civil Liberties Association;

Ian Roland and Emily Lawrence, for the intervenors, the Canadian Police Association and the Police Association of Ontario.

Solicitors of Record:

Sack Goldblatt Mitchell, Toronto, Ontario, for the appellant/respondent on cross- appeal;

Boghosian & Associates, Toronto, Ontario, for the respondents/appellants on cross- appeal;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Aboriginal Legal Services of Toronto Inc., Toronto, Ontario, for the intervenor, the Aboriginal Legal Services of Toronto Inc.;

Falconer Charney, Toronto, Ontario, for the intervenor, the Association in Defence of the Wrongly Convicted;

Edmonton Police Service, Legal Advisors' Section, Edmonton, Alberta, for the intervenor, the Canadian Association of Chiefs of Police;

Cooper, Sandler & West, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario);

Blake, Cassels & Graydon LLP, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Paliare, Roland, Rosenberg, Rothstein, Toronto, Ontario, for the intervenors, the Canadian Police Association and the Police Association of Ontario.

This appeal and cross-appeal were heard on November 10, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on October 4, 2007, including the following opinions:

McLachlin, C.J.C. (Binnie, LeBel, Deschamps, Fish and Abella, JJ., concurring) - see paragraphs 1 to 106;

Charron, J. (Bastarache and Rothstein, JJ., concurring) dissenting on the cross-appeal - see paragraphs 107 to 188.