So 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 Hill was charged with 10 counts of robbery but 9 charges were withdrawn before trial. Hill was found guilty of robbery. He appealed and a new trial was ordered where he was acquitted and brought a civil action that included a claim in negligence against the police based on the conduct of their investigation. The trial judge dismissed the claim in negligence, but the Court of Appeal unanimously recognized the tort of negligent investigation, however a majority of the court held that the police were not negligent in their investigation. Hill appealed on the fact that the police were not found to be negligent, and the police cross-appealed on the finding of a tort of negligent investigation.
- Is there a tort of negligent investigation?
- If so, are the police guilty of it?
Appeal and cross-appeal dismissed.
McLachlin, writing for the majority, held that the tort of negligent investigation exists in Canada; in the relationship between an investigating police officer and a suspect, the requirement of reasonable foreseeability was clearly made out and posed no barrier to finding a duty of care. A clearly negligent police investigation of a suspect could cause harm to a suspect. There is sufficient proximity between a police officer and a suspect, as the relationship between the parties was personal, close and direct, thereby giving rise to a prima facie duty of care. Further, there were no broad policy reasons for declining to recognize a duty of care owed by the police to a suspect. The respondent police officers owed a duty of care to Hill, which required them to meet the standard of a reasonable officer in similar circumstances. While she held that the investigation that led to Hill's arrest and conviction was flawed, it did not breach this standard.
There is a tort of negligent investigation in Canada.