Negligent Investigation Since Wellington
In light of the decision by the Supreme Court of Canada to deny leave to appeal in John Connelly et. al. v. Toronto Police Services Board, 2019 Canlii 16463 (SCC) rendered on March 7, 2019, it seems that it will be quite some time until another brave applicant might attempt to overturn the Ontario Court of Appeal’s decision in Wellington v. Ontario  ONCA 274 (“Wellington”). The key takeaway of the Wellington case was that the families of victims of crime could not sue the police for a negligent investigation. Given that the Supreme Court of Canada denied leave to appeal in Wellington and now in Connelly, it would seem that there is little interest by the high court to determine whether or not the police owe a common law duty of care to the families of victims of crime under the tort of negligent investigation. However, a denial of leave to appeal by the Supreme Court does not technically carry any precedential weight. I would argue that the Supreme Court of Canada should take up this question one day, and that the tort ought to extend to the families of victims of crime and to victims of crime themselves when there is a sufficient relationship of proximity with the police. Alternatively, it may simply be easier for the legislature to amend the Police Services Act, R.S.O. 1990 to include this duty. In Wellington, the Honourable Justice Sharpe of the Court of Appeal for Ontario held that, in lieu of tort claims, families of victims can make victim impact statements and can sue the perpetrators of crime as alternatives to litigation against the police (para 53):
“Victims of crime may apply for compensation from a publicly funded scheme under the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24. The families of victims are ordinarily given standing in coroner's inquests in homicide cases and may apply for reimbursement of their legal costs: see the Coroner's Act, R.S.O. 1990, c. C.37, s. 41. Odhavji recognizes the right of victims and their families to sue where the police willfully fail to comply with their statutory duties in relation to investigations. After conviction, the Criminal Code, R.S.C. 1985, c. C-46 gives victims a voice in sentencing through victim impact statements (s. 722) and allows for victim-centered sanctions and remedies in certain cases (see, e.g., ss. 738-741.2). And, of course, victims and their families are entitled to sue the perpetrators of crime. Refusing to recognize the existence of a private law duty of care in relation to police investigations does not leave the families of victims or these respondents without appropriate and viable legal recourse.”
What we have learned since Wellington was decided in 2011 is that victims’ families often do not have the above-mentioned remedies. After all, what if the police negligence has deprived the family from knowing the identity of the perpetrator of the crime? How will they then be able to speak at sentencing hearings and make victim impact statements if the perpetrator has not been captured as a result of negligence in the investigation? As is discussed extensively in Civil Liability of Police Forces to Members of the Public, by Julian N. Falconer and Jackie Esmonde, in 1987, the Canadian Federal Minister of Justice commented that “the victim of crime is often a forgotten person in our criminal justice system.” This statement rings as true today as it did back in 1987. Based on the current state of the law, the police owe a duty to society generally but not to any one individual person (with the exception of suspects as in Hill v. Hamilton-Wentworth Police 2007 SCC 41 or to a limited number of identifiable victims as in the fact patterns of Jane Doe v. Metropolitan Toronto, 1998, 39 O.R. (3d) 487 (S.C.) or Patrong v. Banks, 2016 ONSC 4200 (Div. Ct.)). What is often unknown is how much the families of victims of crime have to endure to obtain information from the police. While the police will often turn over some documentation from their investigation to victims’ families, it can be spotty and heavily redacted at best. Further, it is no easy feat to obtain information from the Information and Privacy Commissioner after a municipal police force has denied a claimant documentation. The Municipal Freedom of Information and Protection of Privacy Act often acts as a total bar to obtaining information except under “compassionate grounds.” The process of obtaining such information, even if it is provided for “compassionate grounds” can take up to two years from the date of the initial application, through to the mediation process, and on to the written adjudication process and finally a written decision from an adjudicator (assuming there are no applications for judicial review to the Divisional Court and beyond). By this point, even if family members obtain information that suggests there was police negligence in an investigation, any statute of limitations will have almost certainly expired. Or at least there will be a prolonged battle over the limitation period in any action. It is certainly true that there is a societal interest in the police investigating crimes and solving cases. However, the victim and his or her family must also not be forgotten in this process. Successful civil lawsuits against police forces, admittedly, should be rare. However, where a police force or officer has breached the internal police standards of care, or the standard of care as established in Hill for a reasonable police officer, and where that negligence has caused damage, there should be no automatic bar to negligent investigation claims by victims or their families. In fact, there is no societal interest in negligent investigations. The common law is constantly evolving. Courts should exercise great care in striking novel actions under Rule 21. As the Federal Court of Appeal commented in Paradis Honey v. Canada 2015 FCA 89 at pg. 119:
“One afternoon in a small, quiet café in Paisley, Scotland, Francis Minghella served May Donoghue a bottle of ginger beer with a decomposed snail in it. So said a claim for damages, at the time so novel it was met by a motion to strike. Upon the dismissal of that motion, a body of law was born.”
When it comes to victims’ families and negligent investigations, I hope one day Canadian courts heed the above advice.