In 2007, the Supreme Court of Canda recognized the tort (the wrongdoing) of negligent investigation by police officers. In this case, the suspect was investigated by the Hamilton police, arrested, tried, wrongfully convicted, and ultimately acquitted after spending more than 20 months in jail for a crime he did not commit. The police officers thought that the suspect had committed ten robberies. There was some evidence linking the suspect to the robberies, including a police tip, eyewitness identifications, a potential sighting of the suspect near the site of one of the robberies, and witness statements that the robber was aboriginal, which the suspect was.
However, during their investigation, the police also had information that two Hispanic men, one of whom looked like the suspect, were the robbers. Two similar robberies occurred while the suspect was in custody. After the suspect was acquitted following a second trial, he brought a civil action that included a claim in negligence against the police based on the conduct of their investigation.
At issue before the Supreme Court was whether, as a matter of law, the police could be sued for neglgent investigation. The court held that the police are not immune from liability under the law of negligence and the tort of negligent investigation exists in Canada. Police officers owe a duty of care to suspects. The relationship is clearly personal, close, and direct. A suspect has a real interest in the conduct of the investigation. The court stated that “at stake are his freedom, his reputation and how he may spend a good portion of his life.” The court also held that this new tort is consistent with the values of the Canadian Charter of Rights and Freedoms because it fosters the interest of the public in responding to failures of the justice system.
The decision was not unanimous. Three of the nine judges dissented. They stated that the tort of negligent investigation should not be recognized in Canada because a private duty of care owed by the police to suspects would necessarily conflict with an officer’s overarching public duty to investigate crime and apprehend offenders. On the facts of the case before the court, the court held that the police officers’ conduct, considered in light of police practices at the time, met the standard of a reasonable officer in similar circumstances. The suspect’s claim in negligence was dismissed for this reason.