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Crown and Government Liability - Negligent Investigation (2). Bigeagle v. Canada
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considers the negligence duty of care, here where negligent investigation is pled against the RCMP:[51] In order to determine whether the statement of claim as pled gave rise to a cause of action of systemic negligence or negligent police investigation against the RCMP, the motion judge had to ascertain whether the RCMP has a duty of care to the Class. This involved examining whether such duty had already been recognized in law, and if not, whether a new duty of care should be recognized by applying what is known as the Anns/Cooper test to the facts pled (Anns v. Merton London Borough Council, [1978] A.C. 728 at 751-52 (H.L.); Cooper v. Hobart, 2001 SCC 79 at paras. 30-31).
[52] This two-part test provides a framework to determine when a duty of care arises. In Nelson (City) v. Marchi, 2021 SCC 41, the Supreme Court of Canada described the framework in novel duty of care cases as follows:[17] In novel duty of care cases, the full two-stage Anns/Cooper framework applies. Under the first stage, the court asks whether a prima facie duty of care exists between the parties. The question at this stage is whether the harm was a reasonably foreseeable consequence of the defendant’s conduct, and whether there is “a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff” (Rankin’s Garage, at para. 18). Proximity arises in those relationships where the parties are in such a “close and direct” relationship that it would be “just and fair having regard to that relationship to impose a duty of care in law upon the defendant” (Cooper, at paras. 32 and 34).
[18] If there is sufficient proximity to ground a prima facie duty of care, it is necessary to proceed to the second stage of the Anns/Cooper test, which asks whether there are residual policy concerns outside the parties’ relationship that should negate the prima facie duty of care (Cooper, at para. 30). As stated in Cooper, at para. 37, the residual policy stage of the Anns/Cooper test raises questions relating to “the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”, such as:Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized? [19] When the duty of care at issue is not novel, there is generally no need to proceed through the full two-stage Anns/Cooper framework. Over the years, courts in Canada have developed a body of negligence law recognizing categories of cases in which a duty of care has previously been established […] In such cases, “the requisite close and direct relationship is shown” and the first stage of the Anns/Cooper framework will be complete, as long as the risk of injury was reasonably foreseeable […] The second stage of the Anns/Cooper test will rarely be necessary because residual policy concerns will have already been taken into account when the duty was first established […] ....
[61] The motion judge found that the jurisprudence did not support a private law duty of care to the Class. While she recognized that the police have been found to owe a private duty of care in certain cases, she was of the opinion that the material facts pled in this case did not have foreseeability and proximity analogous to that found in those very limited factual situations.
[62] Finding there was no established duty of care, the motion judge went on to consider the existence of a novel duty of care by applying the Anns/Cooper test to the facts pled.
[63] It is in the context of her analysis of foreseeability and proximity that the motion judge considered that many of the negligent actions or breaches pled were solely in the jurisdiction of other police services, and therefore lacked the elements of foreseeability and proximity. This observation was appropriate given that several of the claims asserted in the statement of claim related to victims whose disappearance or murder was reported, not to the RCMP, but to other municipal or provincial police forces.
[64] She further noted that the members of the Class included the victims’ families and community members and found that, even if the RCMP had jurisdiction over the investigations, the foreseeability and proximity requirements were not met as the connection between the RCMP and the victims’ families and community members was too far removed. She was also of the view that proximity could not be established by general public statements made by RCMP officials.
[65] Likewise, she observed that neither the RCMP’s constituent act, nor the existing policies or lack thereof, established the relationship or foreseeability necessary to ground a private law duty of care. Any duty owed was to the public in general and not to specific individuals or groups.
[66] She concluded that since the pleadings did not disclose a duty of care, that is to say the first element of the cause of action for systemic negligence, it was plain and obvious that the systemic negligence cause of action was doomed to fail.
[67] Regarding the cause of action of negligent police investigation, the motion judge considered Ms. BigEagle’s argument that where a duty of care is owed by the police to the suspects, this duty could be extended to include the victims, and by relationship the Class. She noted that the test for this tort was the same as any negligence analysis and that the courts have clearly and unequivocally stated that the duty of care in a negligent police investigation was to the person being investigated. She found it was too far a leap to extend it to a victim, or their family or community members, and concluded that it was obvious this cause of action would fail.
[68] That some of the breaches alleged may be attributable to the RCMP does not negate the requirement that a duty of care must exist to support the causes of action in systemic negligence or negligent police investigations. The motion judge applied the correct test and her findings that the police duties in investigating crimes and murders are public in nature and generally do not give rise to a private law duty of care to the victims’ families and community members are well supported by the case law (Goldman v. Weinberg, 2019 ONCA 224 at para. 6; Connelly v. Toronto (Police Services Board), 2018 ONCA 368 at paras. 3, 7; RVB v. Levin, 2018 ABQB 887 at para. 36; Jones v. The Attorney General of Canada (Royal Canadian Mounted Police) et al., 2018 NBCA 86 at para. 30; Good at paras. 80, 85; Wellington v. Ontario, 2011 ONCA 274 at paras. 20, 31, 43-44; Spencer v. Canada (Attorney General), 2010 NSSC 446 at paras. 56, 58; Odhavji Estate v. Woodhouse, 2003 SCC 69 at para. 40 (in obiter)).
[69] The RCMP’s governing legislative scheme also demonstrates that the RCMP’s duty is owed to the public in general. It does not provide for a private duty of care to any particular member of the public (RCMP Act, ss. 18, 37; Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281, Schedule).
[70] The courts have found that the police owe a private duty of care to individuals in certain circumstances. For example, they have a duty to a particular suspect under investigation of alleged criminality (Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41), and a duty to warn a narrow and distinct group of potential victims of crime (Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, [1998] O.J. No. 2681 (Ont. Gen. Div.) (QL), 1998 CanLII 14826). In this case, the claims asserted by Ms. Bigeagle on behalf of the Class do not fall within these exceptional categories of cases. . R. v. Currado
In R. v. Currado (Ont CA, 2023) the Court of Appeal considers the torts of malicious prosecution and negligent investigation, here in the course of a defendant police officer's abuse of process application:[27] The duties and obligations of police investigators to persons under investigation are found primarily in the law pertaining to the torts of malicious prosecution and negligent investigation. As an investigator, LPS owed a duty to the appellant to investigate the allegations as a reasonable police officer would do in all the circumstances, taking into account all of the available evidence, both inculpatory and exculpatory: Hill v. Police Services of Hamilton-Wentworth, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73. There is no claim made on appeal that the LPS investigation was not full, objective and even-handed.
[28] In the context of an allegation that the continued investigation of the criminal allegation by the LPS constituted an abuse of process, even though it had no impact on the fairness of the process, the question becomes – would a reasonable person, fully informed of the particulars, and looking at the matter realistically and practically, come to the conclusion that the members of the LPS could not perform, or could not be seen to perform, their investigatory duties in a reasonable, objective, and even-handed manner: Lippé, at pp. 141-145.
[29] We were not referred to any case in which a court held that the failure of a police force to turn an investigation over to an outside police force on its own, and without regard to the actual fairness of the process, constituted an abuse of process.
[30] Perhaps R. v. Grant, 2020 ONSC 2423, provides the case closest on its facts to this case. In Grant, the trial judge found that the prosecution of a police officer, who was alleged to have committed an assault while on duty, amounted to an abuse of process. The trial judge gave many reasons for coming to that conclusion, including the failure of the police force to refer the investigation to an outside force. The other grounds relied on by the trial judge arose out of the specific circumstances of the case and the impact of the prosecution conduct on the fairness of the accused’s trial.
[31] On appeal, the Summary Conviction Appeal Court (“SCAC”) reversed and sent the matter back to the trial court. The SCAC found that the trial judge had made several errors. In respect of the failure to refer the matter to an outside police force, the SCAC said, at para. 54:There is no requirement for the [police force] to bring in an outside Police Service to conduct a criminal investigation of one of their own. That in itself does not demonstrate a bias. A review of the details of the investigation that was conducted is the most important consideration as to whether the [Police Service] conducted themselves in a manner that a reasonable person could conclude that their investigation was appropriate. [32] I do not suggest that Grant provides a full analysis of the submission advanced by the appellant. It does, however, offer support for the approach taken by the trial judge in this case. Like the trial judge, the SCAC in Grant proceeded on a case-by-case basis in which “a review of the details of the investigation that was conducted, is the most important consideration”.
[33] The other cases put before the court, while helpful, are not abuse of process cases. Some of them involve negligence or malicious prosecution allegations in which conflicts of interest particular to the circumstances, formed part of the evidentiary record relied on by the plaintiffs in support of their tort claims: see e.g. Johnson v. Coppaway, 2004 CanLII 9755 (ON SC), 238 D.L.R. (4th) 126 (Ont. S.C.) Those cases do not advance the appellant’s argument.
[34] The appellant also referred to Duff v. James, 2016 ONSC 3737, aff’d 2017 ONCA 606, 416 D.L.R. (4th) 645. In Duff, the motion judge exercised a statutory power to direct that the OPP, rather than the local police force, enforce a family law order the judge made. The motion judge directed the OPP to enforce the order because the subject of the order was a member of the local police force and there had been difficulties enforcing earlier orders. A judge’s exercise of a statutory power aimed at facilitating the effective enforcement of court orders does not engage any of the considerations relevant on the analysis of an abuse of process claim.
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[38] The appellant has failed to demonstrate any abuse of process. In so holding, I do not, however, diminish the care a police force must exercise in determining whether, in the circumstances of a particular case, the interests of justice would be better served by asking an outside police force to take over an investigation. Police services are alive to conflict concerns and most have written guidelines in place to structure their consideration if, and when, an outside force should be brought in to an investigation. An example of the guidelines is found in Grant, at para. 21.
[39] The LPS was alive to the potential risks associated with its conduct of the investigation. It chose to turn carriage of the matter over to the OPP before any charges were laid. It may be that the LPS should have sought the assistance of the OPP earlier than it did, and it may be that members of the LPS should have played a less active role after the OPP became involved. However, even if one assumes an error in judgment by the LPS, that error is not sufficiently serious to render the criminal prosecution of the appellant an abuse of process. . Korchinski v Office of the Independent Police Review Director
In Korchinski v Office of the Independent Police Review Director (Div Court, 2022) the Divisional Court considered, in the course of a JR of an OPIRD investigation, elements of negligent investigation:[43] In dealing with the tort of negligent investigation, the Supreme Court of Canada, in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, at para 73, set out the standard of care the police owe citizens in performing their duty as that of a reasonable police officer in similar circumstances. The Court said:This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care.
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