J. Negligent Investigations

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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The negligent investigation of wrongdoing by either the police or private sector actors such as private investigators may cause substantial harm to suspects including wrongful arrest, wrongful dismissal from employment, and the denial of valid insurance claims. The liability of the police for a negligent investigation was recognized by the Supreme Court in Hill v. Hamilton-Wentworth Regional Police Services.210

The plaintiff was arrested, prosecuted, convicted, and imprisoned for twenty months for a crime he had not committed. He sued the investigating police officers alleging various acts of negligence that had led to his wrongful arrest. The Court recognized that the police owe a duty of care to a "particularized" suspect who is the subject of their investigation. Chief Justice MCLACHLIN, writing for the majority, applied the Anns/Cooper test. The foreseeability and proximity requirements of that

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test were, in her opinion, satisfied, and the prima facie duty of care was not negated on the grounds that a duty of care would have a chilling effect on the work of the police or that it would be inconsistent with their quasi-judicial and discretionary decision making. It was also argued that the posited duty of care did not give rise to indeterminacy problems, it was consistent with and reflective of values underlying the Charter of Rights and Freedoms, it provided a more adequate remedy than the torts of false imprisonment and malicious prosecution, and it addressed public concerns about the number of wrongful convictions in Canada, some of which have resulted from flawed investigations.211

The standard of care is that of the conduct of a reasonable police officer at the time of the investigation.212 The conduct of the police officers in Hill, in the Court’s view, may not have reflected current policing standards but they did meet the standard of care applicable in 1995 when the investigation took place.213The duty to investigate a suspect with due care was extended to the private sector by the Ontario Court of Appeal in Correia v. Canac Kitchens.214In that case an employer hired the defendant private investigation firm to investigate suspected theft and drug use in the workplace.

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A series of errors by the investigators led to an innocent, long-term employee being dismissed for cause and immediately being turned over to the police who arrested him on the strength of the private investigation. The defendant’s...

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