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[This edited version of the report has been prepared by Dr Robert N Moles]

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9 October 2007 Winnipeg Free Press “Police 'duty' refined”.

It said that some Canadians may be surprised to learn that, prior to Thursday, Canada did not recognize a citizen's right to sue police officers for bungled investigations that result in a wrongful conviction. The Supreme Court of Canada, in a split decision, has now given such legal recourse to Canadians. It places another critical check on police conduct, balancing the rights of individuals against the legal power of the state. Citizens have a well-established right to sue for false arrest, false imprisonment and malicious prosecution, but the Supreme Court found there was a hole in the law that effectively denied an innocent person recourse if investigations were not done according to the standards of the day. The ruling effectively means that mistakes by police need not be willfully committed to trigger a lawsuit.

There are numerous examples now in Canadian court history of how botched investigations led to innocent people - Thomas Sophonow and David Milgaard being the most familiar names in these parts - serving time behind bars. Those men are in growing company, as more convictions get challenged, sometimes with the influential support of DNA typing. In the case before the Supreme Court, science was not needed to free Ontarian Jason Hill, who spent a total of 20 months in jail for a 1994 robbery in Hamilton. Mr. Hill sued because the case against him was built upon practices that hobbled the search for truth. Hamilton-Wentworth police were looking for a man who was aboriginal in appearance, and were then tipped to investigate Mr Hill. They gave media a photo of Mr Hill naming him as a suspect, and interviewed two bank tellers, together, while on their desks sat a newspaper photo of Mr Hill. Eyewitnesses were shown a photo lineup of a number of men with similar features, but all were Caucasian except Mr Hill. Originally facing 10 charges of robbery in late 1994 and early 1995, all but one was dropped. The conviction on the last, lone charge was overturned after a Hispanic-looking man, whom police were tipped to much earlier, was convicted of the other robberies.

Police got the "robber" they wanted, but it was not the man who committed the crimes. The court found, however, that their investigative practices were not substandard for the time. Canadians may wonder about the batting average of the justice system, but the officers were not negligent, the court said, because their conduct was not unreasonable. Three dissenting judges feared that permitting a civil tort of "negligent investigation" would have a chilling effect on police who would fear lawsuits for doing their jobs. The Hill case shows the fear is unfounded. Canada stands as the exception among countries now that officers here can be sued for negligent investigation, but no country's judicial system can claim to be free of the stain of wrongful convictions. The Supreme Court's decision imposes on police a duty of care to suspects, and that should only make them more careful in their investigations

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