Jason Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., 2005 ONCA 34230

@B,00021353,OR

@1@Z20050926

@2

Hill et al. v. Hamilton-Wentworth Regional Police Services

Board et al.*

[Indexed as: Hill v. Hamilton-Wentworth Regional Police

Services Board]

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76 O.R. (3d) 481

[2005] O.J. No. 4045

Docket: C40652

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Court of Appeal for Ontario,

Goudge, Feldman, MacPherson, MacFarland and

LaForme JJ.A.

September 26, 2005

*Applications for leave to appeal and for leave to

cross-appeal to the Supreme Court of Canada were granted with

costs in any event of the cause April 27, 2006 (McLachlin

C.J.C., Binnie and Charron).

@6

Police -- Negligence -- Tort of negligent investigation by

police continuing to be law of Ontario -- No policy reasons

existing to negate or restrict duty of care -- Existence of

tort not having chilling effect on performance by police of

their duties -- Plaintiff not establishing breach by police of

duty of care in their investigation of robbery with which he

was charged and ultimately acquitted.

Torts -- Malicious prosecution -- Plaintiff acquitted after

second trial on charge of robbery -- Plaintiff's action

against police for damages for malicious prosecution properly

dismissed -- Plaintiff failing to establish element of malice

on part of police defendants.

Torts -- Negligence -- Negligent investigation -- Tort of

negligent investigation by police continuing to be law of

Ontario -- No policy reasons existing to negate or restrict

duty of care -- Existence of tort not having chilling effect on

performance by police of their duties -- Plaintiff not

establishing breach by police of duty of care in their

investigation of robbery with which he was charged and

ultimately acquitted.

In the course of their investigation of a series of bank

robberies, the police received a Crime Stoppers tip implicating

the plaintiff. A police officer identified the plaintiff after

looking at a surveillance photograph taken during one of the

robberies. Another police officer prepared a photo line-up to

be shown to witnesses of the robberies. The line-up consisted

of the plaintiff (an Aboriginal person) and 11 Caucasian

"foils". A tenth bank robbery took place on January 23, 1995.

The tellers had been given enlarged copies of a photograph of

the plaintiff which the police had released to the media. Two

tellers, who were interviewed together, identified the

plaintiff as the robber. Two days later, the police received a

Crime Stoppers tip indicating that a Spaniard and a Cuban were

the perpetrators of the robberies. The plaintiff was arrested

two days after that and was ultimately charged with ten counts

of robbery. Two more bank robberies were committed after the

accused's arrest. The descriptions of the robber and the

modus operandi were similar to the previous robberies but,

unlike those robberies, a gun was used. The investigating

officers received a tip that another person, S, was responsible

for the series of robberies. An officer checked out S's

description and found that he was about the same size as the

plaintiff and similar in appearance. Four of the charges

against the plaintiff were withdrawn before and during the

preliminary inquiry. At the conclusion of the preliminary

inquiry, the plaintiff was ordered to stand trial on the

remaining six counts. Five of those charges were withdrawn by

the Crown Attorney who was assigned to prosecute the case. The

plaintiff was convicted of the remaining charge, the January 23

robbery. His appeal was allowed and a new trial was ordered. In

allowing the appeal, the court rejected the argument that the

verdict was unreasonable. The plaintiff was acquitted at his

second trial. He brought an action against the police for

damages for malicious prosecution and negligent investigation.

The action was dismissed. The plaintiff appealed.

Held, the appeal should be dismissed. [page482]

Per MacPherson J.A. (Goudge and MacFarland JJ.A. concurring):

The elements of malicious prosecution are: (a) the impugned

prosecution must have been initiated or continued by the

defendant; (b) the proceedings must have terminated in favour

of the plaintiff; (c) the proceedings must have been instituted

without reasonable and probable grounds; and (d) the defendant

must have acted out of malice or for a primary purpose other

than that of carrying the law into effect. The trial judge

found for the plaintiff on the first two elements but found

that the police officers had reasonable and probable grounds to

prosecute the plaintiff and that the officers did not act

maliciously or for an improper purpose. Those conclusions were

supported by the evidence.

The tort of negligent investigation by the police has existed

in Ontario since the 1997 decision of the Court of Appeal in

Beckstead v. Ottawa (City) Chief of Police. Beckstead should

not be overruled. There are no policy reasons for denying the

existence of a duty of care on the part of the police towards

both suspects and victims. The defendants' argument that the

imposition of a duty of care on the police with respect to

criminal investigations will have an undesirable chilling

effect on the performance by the police of their duties was

insufficiently compelling. The police know that they must take

care in the performance of their criminal investigations. There

are legal standards that already govern those investigations --

for example, the reasonable and probable grounds standard for

making an arrest. The assertion that the imposition of a legal

duty of care on the police with respect to their criminal

investigations will cause the police to change the way they

perform their profes sional duties is both unproven and

unlikely. A duty of care exists in Canada in two provinces,

Ontario and Quebec, and the concern that the existence of a

duty of care will divert police time and resources from the

investigation of crime to a defence of the investigation at a

later time is not borne out by the experience in those two

provinces. Further, it is crucial to focus not only on the

police side of the duty of care equation, but also to recognize

the rights of suspects and victims and to balance them with the

important duties of the police. A negligent police

investigation has the potential to lead to wrongful

incarceration (for suspects) and injury (to victims). These

consequences relate directly to liberty and security of the

person interests protected by s. 7 of the Canadian Charter

of Rights and Freedoms. The common law of negligence should be

developed, if possible, with an eye to s. 7 of the Charter. The

existence of a duty of care for the police in the context of a

criminal investigation, owed to suspects and victims, promotes

that goal. The policy concerns weighing against imposing a duty

of care can be addressed by a carefully tailored standard of

care.

The trial judge's conclusion that the police defendants were

not negligent in the circumstances of this case was not

unreasonable or clearly wrong and was supported by the

evidence. While the photo line-up raised serious concerns,

there was no causal link between the photo line-up and the

plaintiff's arrest, detention and trial on the charge relating

to the January 23 robbery. Moreover, the trial judge found as a

fact that the plaintiff did not stand out in the line-up and

that he looked similar to the Caucasian "foils". While the

police had a continuing duty to investigate the robberies after

the plaintiff's arrest, their conclusion that the later

robberies were unconnected because a gun was used was

reasonable and did not fall below the standard required of

police officers in the circumstances. Finally, and of

particular importance, when the Court of Appeal allowed the

appeal, it specifically declined to accept the plaintiff's

principal submission that the verdict was unreasonable.

The trial judge's reasons were not insufficient. The 20-page

judgment was responsive, both in law and on the evidence, to

the issues. [page483]

Per Feldman and LaForme (dissenting in part): There continues

to be a tort of negligent investigation by police in Ontario.

The police defendants were negligent in their investigation of

the robberies for which the plaintiff was charged, including

the one for which he was wrongfully convicted. That negligence

caused or contributed to the misidentification of the plaintiff

by several witnesses and therefore to his wrongful prosecution

and the miscarriage of justice that resulted. Furthermore, in

this very significant case involving another wrongful

conviction of an Aboriginal person in Canada, who served more

than 20 months in prison for a crime he did not commit, the

trial judge's reasons for exonerating the police did not

adequately explain the basis for that exoneration.

@5

Beckstead v. Ottawa (City) Chief of Police (1997), 37 O.R.

(3d) 62, 1997 1583 (ON CA), [1997] O.J. No. 5169, 155 D.L.R. (4th) 382 (C.A.),

folld

Brooks v. Commissioner of Police for the Metropolis, [2005]

UKHL 24; Hill v. Chief Constable of West Yorkshire, [1988] 2

All E.R. 238 (H.L.), not folld

Anns v. London Borough of Merton, [1977] 2 All E.R. 492,

[1977] 2 W.L.R. 1024, [1978] AC. 728, 75 L.G.R. 555, 141

J.P. 526, 121 Sol. Jo. 377 (H.L.), apld

Other cases referred to

Calveley v. Chief Constable of the Merseyside Police, [1989]

1 All E.R. 1025 (H.L.); Chartier v. Quebec (Attorney General),

1979 17 (SCC), [1979] 2 S.C.R. 474, 104 D.L.R. (3d) 321, 27 N.R. 1, 48

C.C.C. (2d) 34, 1979 17 (SCC), 9 C.R. (3d) 97; Cooper v. Hobart, [2001] 3

S.C.R. 537, 2001 SCC 79, [2001] S.C.J. No. 76, 96 B.C.L.R. (3d) 36, 206

D.L.R. (4th) 193, 2001 SCC 79, 277 N.R. 113, [2001] 11 W.W.R. 221, 2001 SCC

79, 2001 SCC 79, 8 C.C.L.T. (3d) 26 (sub nom. Cooper v. Registrar of

Mortgage Brokers (B.C.) et al.); Elguzouli-Daf v. Commissioner

of Police of the Metropolis, [1985] 1 All E.R. 833 (C.A.); H.L.

v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, [2005]

S.C.J. No. 24, 2005 SCC 25, 251 D.L.R. (4th) 604, 333 N.R. 1,

2005 SCC 25, [2005] 8 W.W.R. 1; Hill v. Church of Scientology of Toronto,

1995 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, 24 O.R. (3d)

865n, 1995 59 (SCC), 126 D.L.R. (4th) 129, 184 N.R. 1, 30 C.R.R. (2d) 189, 25

C.C.L.T. (2d) 89; Hill v. Hamilton-Wentworth Regional Police

Services Board, [2005] O.J . No. 4045 (C.A.), affg (2003), 66

O.R. (3d) 746, 2003 46543 (ON SC), [2003] O.J. No. 3487 (S.C.J.); Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 219

Sask. R. 1, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1,

[2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 2002 SCC 33, 10

C.C.L.T. (3d) 157; Jane Doe v. Metropolitan Toronto

(Municipality) Commissioners of Police (1998), 39 O.R. (3d)

487, 1998 14826 (ON SC), [1998] O.J. No. 2681, 160 D.L.R. (4th) 697, 60 O.T.C. 321,

1998 14826 (ON SC), 126 C.C.C. (3d) 12, 43 C.C.L.T. (2d) 123 (Gen. Div.); Jauvin v.

Quebec (Attorney General), [2003] J.Q. no 17601, [2004] R.R.A.

37 (C.A.) [Leave to appeal to the S.C.C. denied [2004] S.C.C.A.

No. 27]; Kumar v. Commissioner of Police for the Metropolis,

[1995] E.W.J. No. 632 (C.A.); Lacombe v. Andr‚ [2003] R.J.Q.

720, 2003 47946 (QC CA), [2003] R.R.A. 96, 11 C.R. (6th) 92 (C.A.) [Leave to appeal

to the S.C.C. denied [2003] S.C.C.A. No. 196]; Nelles v.

Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, 69 O.R.

(2d) 448n, 35 O.A.C . 161, 1989 77 (SCC), 60 D.L.R. (4th) 609, 98 N.R. 321,

1989 77 (SCC), 49 C.C.L.T. 217, 37 C.P.C. (2d) 1, 71 C.R. (3d) 358; Odhavji

Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74,

233 D.L.R. (4th) 193, 312 N.R. 305, 2003 SCC 69, 19 C.C.L.T.

(3d) 163, 2003 SCC 69, 11 Admin. L.R. (4th) 45 (sub nom. Odhavji Estate

v. Metropolitan Toronto Police Force); Oniel v. Marks, [2001]

O.J. No. 90, 2001 24091 (ON CA), 195 D.L.R. (4th) 59, 80 C.R.R. (2d) 90 (C.A.)

[Leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 121];

Pepsi-Cola Beverages (West) Ltd. v. R.W.D.S.U. Local 558,

2002 SCC 8, [2002] 1 S.C.R. 156, [2002] S.C.J. No. 7, 208 D.L.R. (4th)

385, 2002 SCC 8, 280 N.R. 333, [2004] 4 W.W.R. 205, 217 Sask. R. 22, 90

C.R.R. (2d) 189; Proulx v. Quebec (Attorney General), [2001] 3

S.C.R. 9, 2001 SCC 66, [2001] S.C.J. No. 65, 206 D.L.R. (4th) 1, 276 N.R.

201, 159 C.C.C. (3d) 225, 46 C.R. (5th) 1, 2001 SCC 66, 7

C.C.L.T. (3d) 157 (sub nom. Proulx v. Qu‚bec (A.G.)); [page484]

R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, 184

D.L.R. (4th) 193, 2000 SCC 15, 252 N.R. 204, 143 C.C.C.

(3d) 1, 2000 SCC 15, 32 C.R. (5th) 1; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688,

1999 679 (SCC), [1999] S.C.J. No. 19, 171 D.L.R. (4th) 385, 238 N.R. 1, 133

C.C.C. (3d) 385, 1999 679 (SCC), 23 C.R. (5th) 197; R. v. Goldhar, [1941] 2

D.L.R. 480, 1941 311 (ON CA), 76 C.C.C. 270 (C.A.) (sub. nom R. v. Smokler); R.

v. Hill, [1997] O.J. No. 3255 (C.A.); R. v. Kendall (2005), 75

O.R. (3d) 565, 2005 21349 (ON CA), [2005] O.J. No. 2457, 200 O.A.C. 18, 198 C.C.C.

(3d) 205, 2005 21349 (ON CA), 19 M.V.R. (5th) 92 (C.A.); R. v. Lagace, [2003]

O.J. No. 4328, 2003 30886 (ON CA), 181 C.C.C. (3d) 12 (C.A.); R. v. Nikolovski,

1996 158 (SCC), [1996] 3 S.C.R. 1197, [1996] S.C.J. No. 122, 31 O.R. (3d)

480n, 1996 158 (SCC), 141 D.L.R. (4th) 647, 204 N.R. 333, 111 C.C.C. (3d) 403,

1996 158 (SCC), 3 C.R. (5th) 362; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002]

S.C.J. No. 30, 2002 SCC 26, 211 Nfld. & P.E.I.R. 50, 210 D.L.R. (4th) 608,

2002 SCC 26, 284 N.R. 342, 633 A.P.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th)

68, 2002 SCC 26 (sub nom. R. v. Sheppard (C.)); Retail,

Wholesale and Department Store Union, Local 580 v. Dolphin

Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, [1986] S.C.J. No. 75, 9

B.C.L.R. (2d) 273, 1986 5 (SCC), 33 D.L.R. (4th) 174, 71 N.R. 83, [1987] 1

W.W.R. 577, 1986 5 (SCC), 25 C.R.R. 321, 38 C.C.L.T. 184, 87 C.L.L.C. 14,002;

ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, [1995] S.C.J. No. 79,

1995 72 (SCC), 11 B.C.L.R. (3d) 201, 127 D.L.R. (4th) 577, 188 N.R. 161,

1995 72 (SCC), [1995] 10 W.W.R. 1 (sub nom. Neuzen v. Korn); Trident

Construction Ltd. v. W.L. Wardrop and Associates Ltd., [1979]

M.J. No. 454, 1979 3043 (MB QB), 1 Man. R. (2d) 268, [1979] 6 W.W.R. 481 (Q.B.)

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 7

Civil Code of Quebec, Art. 1457 [as am.]

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 5(1)

Public Authorities Protection Act, R.S.O. 1990, c. P.38, s. 7

[rep.]

Authorities referred to

Canada, Federal/Provincial/Territorial Heads of Prosecutions

Committee Working Group, Report on the Prevention of

Miscarriages of Justice (Ottawa: Department of Justice, 2004)

Manitoba, The Inquiry Regarding Thomas Sophonow: The

Investigation, Prosecution and Consideration of Entitlement

to Compensation (Winnipeg: Manitoba Justice, 2001)

(Commissioner Peter Cory)

Nova Scotia, Royal Commission on Donald Marshall Jr.,

Prosecution (Nova Scotia: Queen's Printer, December 1989)

Ontario, The Commission on Proceedings Involving Guy Paul

Morin: Report (Toronto: Ministry of the Attorney General,

@6

APPEAL by the plaintiff from the judgment of Marshall J.,

(2003), 2003 46543 (ON SC), 66 O.R. (3d) 746, [2003] O.J. No. 3487 (S.C.J.),

dismissing an action for damages for malicious prosecution and

negligent investigation.

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Sean Dewart and Louis C. Sokolov, for appellants.

David G. Boghosian and Anna Casemore, for respondents.

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MACPHERSON J.A. (GOUDGE and MACFARLAND JJ.A. concurring): --

A. Introduction

[1] The appellants, Jason Hill ("Mr. Hill" or the

"appellant"), an Aboriginal young man, and members of his

family, appeal from [page485] the judgment of Justice T. David

Marshall of the Superior Court of Justice, reported as Hill v.

Hamilton-Wentworth Regional Police Services Board (No. 2)

(2003), 2003 46543 (ON SC), 66 O.R. (3d) 746, [2003] O.J. No. 3487 (S.C.J.),

dismissing his action for malicious prosecution and negligent

investigation against the Hamilton-Wentworth Police Services

Board and several police officers. Mr. Hill commenced his

action after he was acquitted, at a second trial, on a charge

of robbery of a credit union in Hamilton.

[2] The appeal raises issues relating to the definition and

application of the torts of malicious prosecution and negligent

investigation. The principal issue on the appeal, which caused

the Chief Justice of Ontario to create a five-judge panel for

the hearing pursuant to s. 5(1) of the Courts of Justice Act,

R.S.O. 1990, c. C.43, is whether the decision of this court in

Beckstead v. Ottawa (City) Chief of Police (1997), 37 O.R. (3d)

62, 1997 1583 (ON CA), [1997] O.J. No. 5169 (C.A.), holding that there is a tort

of negligent investigation relating to police officers, should

remain the law of Ontario. A second important issue is whether

the trial judge erred by concluding that the conduct of various

Hamilton Police officers in this case did not constitute either

malicious prosecution or negligent investigation.

B. Facts

(1) The parties and the events

[3] In December 1994 and January 1995, there were ten

robberies of banks, trust companies and credit unions in

Hamilton. In each case, the modus operandi was essentially the

same and eyewitnesses provided similar descriptions of the

suspect. Early in the investigation, the police concluded that

the robberies were committed by a single perpetrator, to whom

they gave the moniker "the plastic bag robber".

[4] The first seven robberies took place between

December 16, 1994 and January 12, 1995. On January 12, Mr. Hill

became a suspect after the police received a Crime Stoppers tip

about him and P.C. Ian Matthews identified him after looking at

a surveillance photograph taken during the fifth robbery on

January 5, 1995.

[5] On the basis of Matthews' identification, Mr. Hill was

investigated more intensively. Detective Larry Moore asked the

identification branch to prepare a photo line-up to be shown to

witnesses of the robberies, which was to include Mr. Hill's

photo. P.C. Terry Hill prepared the line-up which consisted of

Mr. Hill, an Aboriginal person, and 11 Caucasian 'foils'.

[page486]

[6] The lead investigator, Detective Jack Loft, decided to

arrest Mr. Hill for seven robberies. His reasonable and

probable grounds consisted of Matthews' identification of Mr.

Hill from the surveillance photo of the January 5 robbery, two

tentative identifications by eyewitnesses and a Crime Stoppers

tip naming Mr. Hill as the possible robber, coupled with

Loft's belief that all seven robberies were committed by the

same person.

[7] On January 15 and 16, 1995, two more robberies occurred.

The ninth robbery was committed at the same location as the

sixth robbery, the Polish Credit Union. A witness to both

robberies identified the robber as the same person on both

occasions.

[8] On January 16, the photo of Mr. Hill that was being used

in the photo line-up was given to CHCH television. It was

broadcast on a news story in which Mr. Hill was named as the

suspected bank robber. On January 18, the same photo of Mr.

Hill was published in the Hamilton Spectator.

[9] On Monday, January 23, a tenth robbery took place, at the

Industrial Credit Union. The tellers at this institution had

been given enlarged copies of the Hamilton Spectator photo of

Mr. Hill by their manager to post on their desks. Two tellers,

Pamela Lepr‚ and Lorene Caldwell, were interviewed together by

P.C. Andrea McLaughlin (then named Maas). Both identified Mr.

Hill as the robber.

[10] P.C. Joseph Stewart was aware that Mr. Hill was a

suspect in the plastic bag robberies. He possessed a photograph

of Mr. Hill. Stewart was driving past the Industrial Credit

Union while on his lunch break moments before the tenth robbery

on January 23. He thought that he saw Mr. Hill walking up to,

and then away from, the door of the credit union. Stewart

searched for Mr. Hill in the area for about 20 minutes but was

unsuccessful. He returned to the credit union, after playing a

hockey game over his lunch break, and discovered that it had

been robbed. P.C. McLaughlin confirmed that Stewart came to the

credit union shortly after the robbery and later advised her of

his sighting of Mr. Hill.

[11] On January 25, the police received an anonymous Crime

Stoppers tip indicating that a Spaniard named "Frank" and a

Cuban named "Pedro" were the perpetrators of the plastic bag

robberies.

[12] Mr. Hill was arrested on January 27, 1995, and was

eventually charged with ten counts of robbery. In charging Mr.

Hill, Detective Loft relied on Matthews' positive

identification of Mr. Hill as the person involved in the fifth

robbery, the positive identification evidence of tellers Lepr‚

and Caldwell and the sighting of Stewart in respect of the

tenth robbery, the evidence of various [page487] witnesses that

the robber appeared to be Aboriginal, and the fact that the

modus operandi of the robberies and the witnesses'

descriptions of the suspect were sufficiently consistent to

support a conclusion that the same individual had committed all

the robberies.

[13] On February 7, while Mr. Hill was in custody, the

Centennial Credit Union was robbed a second time. On

February 10, a CIBC branch was robbed, also a second time. The

descriptions of the robber and the modus operandi were similar

to the plastic bag robberies; however, a gun was used by the

bandit in these two robbieries.

[14] On February 10, Detective Sid Millin was assigned to

investigate the February 7 and 10 robberies.

[15] Another Crime Stoppers tip was received on February 14.

Detective Millin recorded the tip in his notes:

A guy named Frank is doing the robberies, now using a gun and

was wearing a Chicago Bulls jacket. The guy supposedly looks

similar to Jason George Hill another robber . . . Frank was

laughing that Jason was getting the rap for his robberies in

the area.

[16] Detective Millin was also told by another police officer

that Francesco ("Frank") Sotomayer could be the robber. Millin

checked Mr. Sotomayer's description and found that he was

about the same size as Mr. Hill and similar in appearance.

Millin further substantiated part of the Crime Stoppers tip by

verifying a partial licence plate number that the tipster had

disclosed, lending credence to the tip. Millin also obtained

still photos of the first robbery from Loft and concluded that

the photos resembled Mr. Sotomayer more than Mr. Hill.

[17] Detectives Loft and Millin met several times in March

and April to share information about the plastic bag robberies.

On March 7, the Crown withdrew the first two charges against

Mr. Hill because Millin had concluded that these robberies had

been committed by Mr. Sotomayer.

[18] The preliminary inquiry relating to the eight

outstanding charges against Mr. Hill commenced on

April 7, 1995. During the hearing, the Crown withdrew two of

these charges when the witness to two robberies at the Polish

Credit Union testified that Mr. Hill was not the man who robbed

her. At the conclusion of the preliminary inquiry, the

presiding judge ordered Mr. Hill to stand trial on the

remaining six counts.

[19] Assistant Crown Attorney Joseph Nadel was assigned to

prosecute at the trial. When he reviewed the file, he decided

to withdraw five of the remaining six charges against Mr. Hill.

The trial proceeded with respect to only the tenth robbery on

[page488] January 23, 1995. The basis of the Crown's

decision to proceed on this charge was the identification

evidence of tellers Lepr‚ and Caldwell and the sighting by P.C.

Stewart. Lepr‚ had been shown a photo of Mr. Sotomayer the

night before she testified and said that Sotomayer was not the

robber. Both Lepr‚ and Caldwell identified Mr. Hill in person

at Mr. Hill's trial.

[20] Mr. Hill was found guilty of robbery by a jury in

March 1996. He was subsequently sentenced to three years in

prison.

[21] Mr. Hill appealed his conviction and the appeal was

heard on August 6, 1997. The appeal was allowed on the basis

that the trial judge had given an insufficient instruction

about the frailties of identification evidence and a

misdirection concerning how the jury could assess the alibi

evidence called by the defence. However, the court (Brooke,

Finlayson and Charron JJ.A.) rejected the appellant's

"principal ground of appeal" that the verdict was unreasonable:

This is not an unreasonable verdict case. The appellant was

identified as the robber by two cashiers in the Credit Union

that was robbed and as being seen in the area at the time of

the robbery by a police officer who had him under

surveillance. Additionally, there was a video taken by a

surveillance camera and the tape was available to the jury.

The appellant did not testify. In the circumstances it cannot

be said that the verdict was unreasonable.

(R. v. Hill, [1997] O.J. No. 3255 (C.A.), at para. 2)

The court ordered a new trial. At the second trial, before a

judge alone, Cavarzan J. acquitted Mr. Hill of the robbery

charge.

[22] There are other facts relevant to the disposition of the

appeal. I find it convenient to consider these facts in my

discussion of the legal issues.

(2) The civil proceedings

[23] Mr. Hill initiated a civil action against the Hamilton-

Wentworth Police Services Board, many of the police officers

involved in the investigation, and the Crown prosecutors at the

preliminary inquiry and the trial, Laverne Urban and Joseph

Nadel, respectively. Before trial, the action against the Crown

prosecutors and Detectives Sid Millin and Dominic Delibato was

discontinued.

[24] The action against the police defendants was framed in

malicious prosecution, negligence, misfeasance in public

office, conspiracy, abuse of process, defamation and breach of

rights under the Canadian Charter of Rights and Freedoms. By

the time the trial commenced, Mr. Hill had reduced his claims

to malicious prosecution, negligence and breach of Charter

rights. [page489]

[25] The trial took place over a nine-day period in

August 2003. Six days after the trial concluded, Marshall J.

released a 20-page judgment dismissing the action. Although the

trial judge described Mr. Hill's conviction at the trial as a

"wrongful conviction" and acknowledged that Mr. Hill and his

family "have suffered a great deal", he did not think that Mr.

Hill established that the police defendants had committed the

torts of malicious prosecution or negligent investigation or

had breached Mr. Hill's Charter rights.

[26] Mr. Hill appeals the judgment on the issues of malicious

prosecution and negligent investigation. He also contends that

the trial judge's reasons are not sufficient to allow for

meaningful appellate review and, therefore, do not comply with

the standard for reasons for judgment set out in R. v.

Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30.

[27] The respondents defend the trial judge's decision. In

addition, they advance two other arguments against a finding of

liability: (1) there should not be a tort of negligent police

investigation and this court should overrule its previous

decision in Beckstead; and (2) with the exception of the claim

for malicious prosecution in respect of the January 23, 1995

robbery, Mr. Hill's action is barred by virtue of s. 7 of the

Public Authorities Protection Act, R.S.O. 1990, c. P.38.

C. Issues

[28] The issues on appeal are:

(1) Did the trial judge err by concluding that the respondents

did not commit the tort of malicious prosecution?

(2)(a) Should the tort of negligent investigation by the police

continue to be the law of Ontario or should the decision of

this court in Beckstead v. Ottawa (City) Chief of Police be

overruled?

(b) Did the trial judge err by concluding that the

respondents did not commit the tort of negligent

investigation?

(3) Did the trial judge's reasons for judgment comply with the

standard enunciated by the Supreme Court of Canada in R. v.

Sheppard?

(4) With the exception of the claim for malicious prosecution

in respect of the January 23, 1995 robbery, was the

plaintiffs' action barred by s. 7 of the Public

Authorities Protection Act? [page490]

D. Analysis

(1) Malicious prosecution

[29] Relying on Proulx v. Quebec (Attorney General), [2001] 3

S.C.R. 9, 2001 SCC 66, [2001] S.C.J. No. 65, the trial judge correctly set

out the four elements of the tort of malicious prosecution [at

para. 49]:

(a) The impugned prosecution must have been initiated or

continued by the defendant.

(b) The proceedings must have terminated in favour of the

plaintiff.

(c) The proceedings must have been instituted without

reasonable and probable grounds.

(d) The defendant must have acted out of malice or for a

primary purpose other than that of carrying the law

into effect.

[30] The trial judge [at para. 50] described the first two

elements as "straightforward enough" and resolved them in the

appellant's favour.

[31] On the third element, the trial judge reviewed the

testimony of Detective Loft, P.C. Stewart, P.C. Matthews and

Crown Attorney Nadel, all of whom he found credible. Applying

the relevant case authorities, he concluded that "the

Officers' beliefs were honest in the subjective sense and, as

well, reasonable in the objective sense."

[32] Strictly speaking, it was not necessary for the trial

judge to address the fourth element of the tort. However, he

did so in any event and in forceful language [at para. 60]:

I would add that I do not find there was malice in the

officers' prosecution of Mr. Hill, that is, malice in the

sense of this prosecution being for an improper purpose

... There was, in my view, not a shred of evidence of the

prosecution being perverted or moved by improper purposes.

[33] The appellant submits that the trial judge erred in his

conclusions on both the reasonable and probable grounds and

malice elements of the tort of malicious prosecution.

[34] In the section of my reasons dealing with the tort of

negligent investigation, I conclude that there were reasonable

and probable grounds to institute criminal proceedings against

Mr. Hill. I incorporate that reasoning here and conclude that

the trial judge did not err in his conclusion relating to the

third element of the tort of malicious prosecution. This, of

course, is enough to defeat the appellant's claim.

[35] However, as did the trial judge, I turn to the question

of malice. This element of the tort of malicious prosecution

has been comprehensively addressed by the Supreme Court of

Canada in [page491] Proulx and in Nelles v. Ontario, [1989] 2

S.C.R. 170, 1989 77 (SCC), [1989] S.C.J. No. 86. The bar set by the court in

these cases is a high one. As expressed by Iacobucci and Binnie

JJ. in Proulx at para. 35:

[A] suit for malicious prosecution must be based on more than

recklessness or gross negligence. Rather, it requires

evidence that reveals a willful and intentional effort on the

Crown's part to abuse or distort its proper role within the

criminal justice system . . . . The key to a malicious

prosecution is malice, but the concept of malice in this

context includes prosecutorial conduct that is fueled by an

"improper purpose" or, in the words of Lamer J. in Nelles,

supra, a purpose "inconsistent with the status of 'minister

of justice'" (pp. 193-94).

[36] As required by Proulx at para. 37, I have considered

"the totality of all the circumstances" of the case. In

particular, I have read the testimony of all of the police

officers, especially Detective Loft who is the principal target

of the appellant's malicious prosecution claim. I cannot say

that there is anything in the officers' testimony that

suggests that the steps they took in the investigation of the

robberies were either motivated by any improper purpose or

reveal a wilful and intentional effort to abuse or distort

their proper role in the criminal justice system. The

officers' testimony gives rise to legitimate questions about

the advisability of the steps they took or omitted to take. The

testimony does not, however, raise any spectre of improper

purpose.

[37] Moreover, I note that the trial judge's finding of no

malice in the context of the tort of malicious prosecution

requires the assessment of the evidence against the legal

standard of malice and is therefore a finding on a question of

mixed fact and law. It most importantly "involves the trial

judge's interpretation of the evidence as a whole";

accordingly, it should not be overturned absent "palpable and

overriding error" or unless it is "clearly wrong",

"unreasonable" or "unsupported by the evidence": see Housen v.

Nikolaisen, 2001 SCC 30, [2002] 2 S.C.R. 235, [2001] S.C.J. No. 31, at

para. 36, and H.L. v. Canada (Attorney General), [2005] 1

S.C.R. 401, [2005] S.C.J. No. 24, 2005 SCC 25, at

paras. 55-56. In my view, it is simply impossible to conclude

that the trial judge's conclusion on the malice issue rises to

this level of error. Frankly, on the basis of the record his

conclusion strikes me as correct.

(2) Negligent investigation

[38] There are two matters to consider on this issue: first,

whether the tort of negligent investigation by the police

should continue to exist as part of the law of Ontario; and,

second, did the police commit the tort in this case. [page492]

(a) The existence of the tort

[39] The tort of negligent investigation by the police has

existed in Ontario since the decision of this court in 1997 in

Beckstead. The respondents submit that Beckstead was wrongly

decided and should be overruled.

[40] In Beckstead, an acquaintance of the plaintiff accused

her of fraudulently using a debit card to remove money from the

acquaintance's bank account. The accusation was investigated

by the defendant Woodburn, an experienced Ottawa police

officer. However, before making his decision to charge the

plaintiff with fraud, he conducted little or no investigation,

and he discounted the fact that photographs taken by a machine

in the bank showed that the person who apparently had used the

credit card bore little or no resemblance to the plaintiff.

After a period of six months and a total of eight court

appearances, the Crown Attorney withdrew the charge against the

plaintiff because he thought that the evidence was

unsatisfactory.

[41] The plaintiff then sued Woodburn and the Ottawa Chief of

Police for false arrest, slander and negligence. The plaintiff

alleged that Woodburn failed to perform a careful investigation

before charging her and was negligent.

[42] The trial judge dismissed the claims for false arrest

and slander. However, he upheld the claim in negligence and

awarded $20,000 in damages.

[43] This court (Carthy, Labrosse and Austin JJ.A.) dismissed

the appeal. In brief reasons, the court began by setting out

the appellants' principal argument that the police officer had

an immunity from a claim for negligence in the course of

performing his duties. After citing some of the leading

authorities, including Nelles, the court continued at p. 63

O.R.:

None of these authorities suggests that immunity can be

granted without any indication of association to the

activities of the Crown. Here, there is none. The police

officer was an employee of the Ottawa Police force and the

highest the argument could be put was that his actions were

associated with the administration of justice. That does not

establish immunity from actions for tortious conduct on any

known common law principle or statutory basis.

[44] The court then turned to the question of whether the

police officer's conduct in the investigation amounted to

negligence. The court concluded that it did, observing at

p. 64 O.R.:

The police officer acted with indifference to the

consequences of laying the charge and fell short of even the

rudimentary steps which might have been taken to establish

reasonable and probable grounds. [page493]

[45] The respondents contend that Beckstead should be

overruled -- it is bad law and bad public policy.

[46] Before turning to a consideration of this submission, I

want to note an important contextual point. Beckstead is a case

in which the relationship giving rise to a duty of care was

between a police officer conducting a criminal investigation

and a suspect. There is, in Ontario, a second category of

relationship that the courts have also held gives rise to a

similar duty. This second relationship is between police

officers conducting a police investigation and a victim of a

crime: see Jane Doe v. Metropolitan Toronto (Municipality)

Commissioners of Police (1998), 1998 14826 (ON SC), 39 O.R. (3d) 487, [1998] O.J.

No. 2681 (Gen. Div.) ("Jane Doe").

[47] The framework within which the existence of a tort of

negligent investigation by the police must be considered is the

so-called "Anns test", flowing from the decision of the House

of Lords in Anns v. London Borough of Merton, [1977] 2 All E.R.

492, [1977] 2 W.L.R. 1024 (H.L.), as applied and restated in

Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J.

No. 76, and Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263,

2003 SCC 69, [2003] S.C.J. No. 74. These cases stand for the proposition

that in order to establish the existence of a duty of care, a

person must establish, as expressed by Iacobucci J. in Odhavji

Estate at para. 52:

(i) that the harm complained of is a reasonably foreseeable

consequence of the alleged breach; (ii) that there is

sufficient proximity between the parties that it would not be

unjust or unfair to impose a duty of care on the defendants;

and (iii) that there exist no policy reasons to negative or

otherwise restrict that duty.

[48] In my view, there is no real debate on the point that

harm to a suspect is a foreseeable consequence of negligent

investigation by a police officer: see, for example, Calveley

v. Chief Constable of the Merseyside Police, [1989] 1 All E.R.

1025 (H.L.), at p. 1030; Elguzouli-Daf v. Commissioner of

Police of the Metropolis, [1995] 1 All E.R. 833 (C.A.), at p.

842, per Lord Steyn; Kumar v. Commissioner of Police for the

Metropolis, [1995] E.W.J. No. 632 (C.A.), at para. 70, per Sir

Ralph Gibson.

[49] Nor can there be any serious dispute about the proximity

component of the Anns test. In Odhavji Estate, the court found

that there was a sufficient relationship of proximity between

the chief of police and the family of the victim of a police

shooting to make it just and fair to impose liability. The

factors relied upon by the court seem to be equally relevant to

Mr. Hill's situation; they include a close causal connection

between the tortious behaviour and the harm suffered, the

expectations of the parties, and any assumed or imposed

obligations (for example, by statute). [page494]

[50] On the expectation point, Iacobucci J. stated at

para. 57:

A second factor that strengthens the nexus between the

Chief and the Odhavjis is the fact that members of the public

reasonably expect a chief of police to be mindful of the

injuries that might arise as a consequence of police

misconduct. Although the vast majority of police officers in

our country exercise their powers responsibly, members of the

force have a significant capacity to affect members of the

public adversely through improper conduct in the exercise of

police functions. It is only reasonable that members of the

public vulnerable to the consequences of police misconduct

would expect that a chief of police would take reasonable

care to prevent, or at least to discourage, members of the

force from injuring members of the public through improper

conduct in the exercise of police functions.

[51] In my view, this reasoning would seem to apply equally

to the relationship between police officers and "members of the

public vulnerable to the consequences of police misconduct",

such as Mr. Hill qua suspect.

[52] The real focus of debate surrounding whether there

should be a tort of negligent investigation by the police is

the second branch of the Anns test, as reflected in the third

factor listed in Odhavji Estate -- are there policy reasons for

denying the existence of a duty of care?

[53] The respondents submit that there are two particularly

strong reasons for answering this question in the affirmative:

(1) the imposition of a duty of care on the police with

respect to criminal investigations will have an undesirable

chilling effect on the performance by the police of their

duties; and (2) the tort of malicious prosecution strikes a

more appropriate balance between the need to safeguard the

interests of persons wrongly accused of crime and the societal

need for the police to be able to carry out their duties

without fear of civil repercussions. I propose to consider

these submissions in turn.

[54] The alleged chilling effect that the imposition of a

duty of care on police officers might have on the performance

by the police of their important duties relating to criminal

investigations is the centrepiece of two major, and unanimous,

decisions of the House of Lords: Hill v. Chief Constable of

West Yorkshire, [1988] 2 All E.R. 238 (H.L.), and, very

recently, Brooks v. Commissioner of Police for the Metropolis,

[2005] UKHL 24.

[55] Hill was a civil case arising out of the infamous

'Yorkshire Ripper' murders. Peter Sutcliffe committed 13

murders of young women in Yorkshire from 1973 to 1980. His

final victim was Jacqueline Hill. Her mother and personal

representative sued the Chief Constable of West Yorkshire,

claiming that the police investigation of the serial murders

was negligent. [page495]

[56] In a unanimous judgment, the House of Lords held that

the police did not owe a duty of care to victims of crime with

respect to the conduct of their investigation of those crimes.

In the lead speech, Lord Keith of Kinkel expressed deep concern

about the potential chilling effect such a duty might have on

the performance by the police of their duties. In a lengthy

passage setting out several reasons linked to this chilling

effect, Lord Keith of Kinkel said at pp. 243-44 All E.R.:

The general sense of public duty which motivates police

forces is unlikely to be appreciably reinforced by the

imposition of such liability so far as concerns their

function in the investigation and suppression of crime. From

time to time they make mistakes in the exercise of that

function, but it is not to be doubted that they apply their

best endeavours to the performance of it. In some instances

the imposition of liability may lead to the exercise of a

function being carried on in a detrimentally defensive frame

of mind. The possibility of this happening in relation to the

investigative operations of the police cannot be excluded.

Further, it would be reasonable to expect that if potential

liability were to be imposed it would not be uncommon for

actions to be raised against police forces on the ground that

they had failed to catch some criminal as soon as they might

have done, with the result that he went on to commit further

crimes. While some such actions might involve allegations of

a simple and stra ightforward type of failure, for example

that a police officer negligently tripped and fell while

pursuing a burglar, others would be likely to enter deeply

into the general nature of a police investigation, as indeed

the present action would seek to do. The manner of conduct of

such an investigation must necessarily involve a variety of

decisions to be made on matters of policy and discretion

... and what is the most advantageous way to deploy the

available resources. Many such decisions would not be

regarded by the courts as appropriate to be called in

question, yet elaborate investigation of the facts might be

necessary to ascertain whether or not this was so. A great

deal of police time, trouble and expense might be expected to

have to be put into the preparation of the defence to the

action and the attendance of witnesses at the trial. The

result would be significant diversion of police manpower and

attention from their most important function, that of the

suppression of crime. Closed investigations wo uld require to

be reopened and retraversed, not with the object of bringing

any criminal to justice but to ascertain whether or not they

had been competently conducted.

[57] Seventeen years later, in a civil action arising from a

criminal case almost as notorious as the Yorkshire Ripper case,

the House of Lords was presented with an opportunity to

reconsider Hill.

[58] In Brooks, Duwayne Brooks was present when his friend

Stephen Lawrence was abused and murdered in what Lord Bingham

of Cornhill described at para. 1 as "the most notorious racist

killing which our country has ever known". Although charges

were laid against several youths, no one was convicted of any

crime. [page496]

[59] The Home Secretary established an inquiry, chaired by

Sir William Macpherson of Cluny, to examine the police

investigation of the Lawrence murder. The Macpherson report, as

described in Lord Steyn's speech in Brooks at para. 8,

"exposed a litany of derelictions of duty and failures in the

police investigation", including the police treatment of

Brooks.

[60] Brooks launched a civil action sounding in negligence

against the police. The House of Lords revisited Hill. The Law

Lords made minor criticisms of some of the statements in Hill.

However, in essence Brooks stands as a vigorous affirmation of

the reasoning and result in Hill. In the lead speech, Lord

Steyn made these observations about Hill at para. 30:

[T]he core principle of Hill has remained unchallenged in our

domestic jurisprudence and in European jurisprudence for many

years. If a case such as the Yorkshire Ripper case, which was

before the House in Hill, arose for decision today I have no

doubt that it would be decided in the same way. It is, of

course, desirable that police officers should treat victims

and witnesses properly and with respect ... But to

convert that ethical value into general legal duties of care

on the police towards victims and witnesses would be going

too far ... A retreat from the principle in Hill would

have detrimental effects for law enforcement. Whilst focusing

on investigating crime, and the arrest of suspects, police

officers would in practice be required to ensure that in

every contact with a potential witness or a potential victim

time and resources were deployed to avoid the risk of causing

harm or offence. Such legal duties would tend to inhibit a

robust approach in assessing a pe rson as a possible suspect,

witness or victim. By placing general duties of care on the

police to victims and witnesses the police's ability to

perform their public functions in the interests of the

community, fearlessly and with despatch, would be impeded. It

would, as was recognized in Hill, be bound to lead to an

unduly defensive approach in combating crime.

[61] I note, parenthetically, that the House of Lords in

Brooks was aware of the Canadian case law imposing a duty of

care on the police in some contexts in the performance of their

investigative duties. In a section of his reasons titled

Comparative Law, Lord Steyn referred to the decisions of the

Ontario Superior Court in Jane Doe and the Supreme Court of

Canada in Odhavji Estate. However, he did not comment on the

reasoning in those cases, or in South African and Australian

cases to which he also referred, concluding instead at

para. 26 that although "[t]his tour d'horizon was interesting

... ultimately the principle in Hill must be judged in the

light of our legal policy and our bill of rights".

[62] I have anxiously considered the comprehensive speeches

by the several Law Lords in Hill and Brooks. In the end, I am

not persuaded that the policy rationales they advance are

sufficiently compelling to deny the existence of a duty of care

owed by the [page497] police in the context of how they conduct

their criminal investigations. I reach this conclusion for

several reasons.

[63] First, I am not convinced that the existence of a duty

of care will lead to "an unduly defensive approach in combating

crime". The police have important statutory and common law

duties to perform. They have performed them, usually in a

highly professional fashion, for centuries. They know that they

must take care in the performance of their criminal

investigations. Moreover, there are legal standards that

already govern those investigations -- for example, the

reasonable and probable grounds standard for making an arrest.

The assertion that the imposition of a legal duty of care on

the police with respect to their criminal investigations will

cause the police to change the way they perform their

professional duties is, in my view, both unproven and unlikely.

Surgeons do not turn off the light over the operating room

table because they owe a duty of care to their patients. They

perform the operation, with care. The owners of summer resorts

do not lock the gates because they owe a duty of care to their

customers. They open their resorts and take care to make them

safe. In short, the 'chilling effect' scenario painted fairly

vividly in Hill and Brooks is, in my view, both speculative and

counterintuitive.

[64] Second, the Law Lords' concern that the existence of a

duty of care will divert police time and resources from the

investigation of crime to a defence of the investigation at a

later time ("reopened and retraversed") is simply not borne out

by the Canadian experience. In Canada, a duty of care exists in

two provinces, Ontario and Quebec. In neither province have the

floodgates opened. Indeed, a survey of the Ontario authorities

submitted by the parties on this appeal and a search on

Quicklaw indicate that there have been only 15 reported

judgments post-Beckstead in cases where negligent investigation

has been alleged. In only two of those cases has the negligence

claim been successful.

[65] Third, it is important to note that the duty of care

exists in Ontario with respect to both suspects (Beckstead) and

victims (Jane Doe). The respondents attack only Beckstead in

this appeal; they do not challenge Jane Doe. However, I can see

no principled basis for distinguishing the two categories. Both

reflect aspects of the public duty police officers must

discharge. Indeed, in Brooks at paras. 20-23 and para. 32,

Lord Steyn specifically linked the two categories and stated

that the policy concerns surrounding the creation of a duty of

care were the same in both contexts.

[66] Fourth, as mentioned above, in Quebec there is also a

duty of care on police officers with respect to how they

conduct their [page498] criminal investigations. The duty is

based on Art. 1457 of the Civil Code of Quebec and two major

decisions of the Quebec Court of Appeal, Lacombe v. Andr‚,

2003 47946 (QC CA), [2003] R.J.Q. 720, 11 C.R. (6th) 92 (C.A.), leave to appeal

to the Supreme Court denied [2003] S.C.C.A No. 196 and Jauvin

v. Quebec (Attorney General), [2003] J.Q. no 17601, [2004]

R.R.A. 37, leave to appeal to the Supreme Court denied [2004]

S.C.C.A. No. 27. In Lacombe, the court held that the police

should be held to the same standard as a normally prudent and

diligent officer in the same circumstances. The context in

which the impugned action was taken will be of great importance

to the determination of liability. However, police officers

must investigate crimes seriously and in good faith. In Jauvin,

the court added that a balance must be struck between the obl

igation to investigate an event and the need to protect the

individual from arbitrariness and abuse of power. I am

impressed by the reasoning and the balanced results in Lacombe

and Jauvin.

[67] Fifth, in Cooper v. Hobart at paras. 37-38, the Supreme

Court of Canada articulated several criteria to be considered

under the second branch of the Anns test: Does the law already

provide a remedy in respect of the loss complained of? Would

recognition of the duty of care create the spectre of unlimited

liability to an unlimited class? Is the impugned conduct

operational in nature, or is it in the nature of governmental

or legislative policy-making? Did the impugned conduct take

place in the performance of a quasi-judicial function?

[68] None of these criteria favours police immunity from the

law of negligence. There is no alternative remedy for the loss

suffered by a person by reason of wrongful prosecution and

conviction. In particular, the existence of a public complaints

process that might result in the imposition of disciplinary

sanctions is "no alternative to liability in negligence": see

Odhavji Estate at para. 60. In negligent investigation cases,

there is not an indeterminate number of potential plaintiffs

with an indeterminate number of potential losses (unlike, for

example, auditors or regulators). Moreover, the function of the

police in investigating crimes does not involve setting

legislative policy. Nor does it involve the performance of a

quasi-judicial function, unlike, for example, the role of a

Crown prosecutor: see Nelles at p. 192 S.C.R.

[69] Sixth, it is crucial to focus not only on the police

side of the duty of care equation. The rights of suspects and

victims need to be recognized and carefully balanced with the

important duties of the police. The reality is that a negligent

police investigation has the potential to lead to wrongful

incarceration (for [page499] suspects) and injury (to victims).

These consequences relate directly to the liberty and security

of the person interests protected by s. 7 of the Charter. For

almost 20 years, the Supreme Court of Canada has instructed

courts to attempt to develop and apply the common law in a

manner consistent with the rights enshrined in the Charter: see

Retail, Wholesale and Department Store Union, Local 580 v.

Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, [1986] S.C.J. No.

75, at p. 603 S.C.R.; Hill v. Church of Scientology of Toronto,

1995 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 97;

Pepsi-Cola Beverages (West) Ltd. v. R.W.D.S.U., Local 558,

2002 SCC 8, [2002] 1 S.C.R. 156, [2002] S.C.J. No. 7, at paras. 18-22. It

follows that the common law of negligence should be developed,

if possible, with an eye to s. 7 of the Charter. The existence

of a duty of care for the police in the context of a criminal

investigation, owed to suspects and victims, promotes that goal.

[70] Seventh, in my view the policy concerns weighing against

imposing a duty of care can be addressed by a carefully

tailored standard of care. In Lacombe, the court coupled the

normal professional negligence standard (a reasonable police

officer in the same circumstances as the defendant) with

established criminal law and statutory standards (reasonable

and probable grounds to believe that the plaintiff had

committed a crime). Referring to the police investigation of a

crime, Baudouin J.A. stated at para. 42:

The police investigation, obviously, must be undertaken in

good faith. It must also be serious. The police must consider

both inculpatory and exculpatory evidence, and remain

objective regarding the conclusions of their investigation in

order to have reasonable and probable cause.

(My translation) [See Note 1 at the end of the document]

[71] In my opinion, it is not overly onerous to impose a

private law duty requiring police officers to live up to the

norms of conduct the public law requires of them. Furthermore,

I note that this approach seems to be consistent with the

Supreme Court of Canada's recognition in Odhavji Estate that a

Chief of Police is liable in tort if he negligently fails to

act in accordance with duties imposed by statute. [page500]

[72] The respondents' second argument against the imposition

of a duty of care is that the tort of malicious prosecution

sets the bar at the appropriate level. The law of malicious

prosecution strikes a balance between the rights of persons

wrongly accused of crime and the societal need for the police

to be able to carry out their duties without fear of civil

repercussions.

[73] I disagree, essentially for two reasons.

[74] First, if the respondents' submission were accepted,

there would be an illogical and unwarranted disconnect between

the duties of the police vis-…-vis suspects and victims. The

former would be subject to scrutiny against the high bar of the

tort of malicious prosecution ("malice in the form of a

deliberate and improper use of the office": see Proulx at

para. 35); the latter would be governed by standard negligence

principles. I can see no principled basis for such a

distinction; nor, as I mentioned above, did the House of Lords

countenance such a distinction in Hill and Brooks.

[75] Second, the tort of malicious prosecution, if adopted as

the exclusive remedy in the realm of police investigations,

would set the bar too high. In The Inquiry Regarding Thomas

Sophonow: The Investigation, Prosecution and Consideration of

Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001),

Commissioner Peter Cory stated (at p. 94):

It is sufficient to note that potential claimants in an

action for malicious prosecution would be unlikely to succeed

in demonstrating a lack of reasonable and probable grounds

and malice against the police or prosecutors. Such an action

could only succeed in exceptional circumstances where

malicious or unlawful conduct has been established.

[76] The reality is that, in the words of Iacobucci J. in

Odhavji Estate at para. 57, "the vast majority of police

officers in our country exercise their powers responsibly."

Occasionally, police officers engage in conduct for an improper

purpose. Even more rarely, they engage in unlawful conduct. The

tort of malicious prosecution, with the bar set high per Nelles

and Proulx, responds to these cases.

[77] However, there is another category of police misconduct

that has the potential to cause serious harm to members of the

public, including innocent people and victims of crime. This

category has nothing to do with improper purpose or unlawful

conduct; rather, the misconduct is anchored in very poor

performance of important police duties.

[78] It is important to give some flesh and blood to this

non-malicious category of police misconduct.

[79] In Jane Doe, a serial rapist was attacking single white

women living alone in a very small area -- second floor and

third [page501] floor balconies in the Church/Wellesley area of

the City of Toronto. The police issued no warning because they

thought women in the neighbourhood would panic and compromise

the investigation. The trial judge described the police

decision in this fashion at pp. 524-25 O.R.:

[The police] made a decision not to warn women in the

neighbourhood and did not do so. They took no steps to

protect the women they knew to be at risk from an almost

certain attack in result, they failed to take the reasonable

care the law requires and denied the plaintiff the

opportunity to take steps to protect herself to eliminate the

danger and ensure that she would not be attacked.

The trial judge concluded at p. 524 O.R. that "the police

failed utterly in the duty of care they owed Ms. Doe ...

Their decision in this respect was irresponsible and grossly

negligent."

[80] In Brooks, where the context was "the most notorious

racist killing which our country has ever known" (per Lord

Bingham of Cornhill at para. 1), a public inquiry "exposed a

litany of derelictions of duty and failures in the police

investigation" (per Lord Steyn at para. 8).

[81] Should Canadian law not provide a cause of action in

negligence to people like Ms. Doe and Mr. Brooks? Honest

reflection about what happened to them suggests only one

answer. The same answer should apply to Mr. Hill if police

negligence led to his incarceration.

[82] In Cooper v. Hobart, McLachlin C.J.C. and Major J.

observed, at para. 39, that "the second stage of Anns will

seldom arise and ... questions of liability will be

determined primarily by reference to established and analogous

categories of recovery." I can see no reason for departing from

this general proposition in this appeal. Accordingly, I would

affirm the decision of this court in 1997 in Beckstead and

decline to adopt the decisions of the House of Lords in Hill

and Brooks.

(b) Application

[83] I have determined that there is a tort of negligent

investigation by the police. The standard of care, at a general

level, is the same as the standard respecting other

professionals: what would a reasonable police officer in the

same circumstances as the defendant do? In an arrest and

prosecution context, the standard becomes more specific and is

directly linked to statutory and common law duties, namely did

the police have reasonable and probable grounds to believe that

the plaintiff had committed a crime? See ter Neuzen v. Korn,

1995 72 (SCC), [1995] 3 S.C.R. 674, [1995] S.C.J. No. 79, at paras. 33-34;

Jauvin v. Quebec (Attorney General), supra, at para. 44.

[page502]

[84] The trial judge correctly stated the elements of a claim

in negligence -- duty, failure to conform to the standard of

care, proximate cause and loss. Without citing Beckstead, he

found that there was a duty of care. He also held that the

appellant had established proximate cause and loss. Hence the

key issue was, in his words, "the standard of care required of

the police officers in this case and was that standard met".

[85] On this issue at trial, the appellant led the evidence

of Professor Roderick Lindsay of the Department of Psychology

at Queen's University, whom the court qualified to give

opinion evidence on police eyewitness identification

procedures.

[86] On the question of photo line-ups, the trial judge

described Professor Lindsay's evidence, but observed that

Professor Lindsay admitted that "there are no rules" and "there

is a great deal of variation in practice right up to the

present time". Accordingly, the trial judge found no fault in

the way the Hamilton police officers conducted the various

photo line-ups.

[87] On the question of structural bias in the photo line-up

created by Sergeant Terry Hill, the trial judge stated [at

para. 72]:

In the case at bar, the pictures chosen by the officer, on

the facts, if you will, were all Caucasian. I have, however,

looked at the images selected and, though Caucasian, they are

very similar to the picture of Mr. Hill. Put another way I do

not think that the Caucasian and native Canadian mix in fact

had any sway in the arrangement chosen, or in the results in

regard to Mr. Hill being picked out. I am satisfied there was

a real similarity between Mr. Hill and Mr. Sotomayer.

[88] The trial judge's finding on the negligence issue is a

question of mixed fact and law: see Housen v. Nikolaisen at

para. 36. In this case, his finding was based on his

interpretation of the evidence as a whole, including,

importantly, his assessment of the credibility of the main

police witnesses who were involved in the criminal

investigation. As such, the trial judge's conclusion should

not be overturned absent palpable and overriding error or

unless it is clearly wrong, unreasonable or unsupported by the

evidence: see Housen v. Nikolaisen, supra, at para. 36 and H.L.

v. Canada (Attorney General) at paras. 55-56.

[89] The appellant recognizes the problem presented by the

standard of review in this aspect of his appeal. Nevertheless,

he asserts that the trial judge committed palpable and

overriding errors with respect to the police investigation both

pre- and post-arrest.

[90] On the pre-arrest front, the appellant makes two

submissions: (1) the police failed to follow their own internal

guidelines with respect to the presentation of photo line-ups

to witnesses; and (2) the photo line-up of 11 Caucasians and

one Aboriginal person was structurally biased against the

appellant. [page503]

[91] The factual components of the first submission are that

the appellant's photo had been published in the Hamilton

Spectator and that, at one robbery site, two witnesses were

interviewed together.

[92] I do not see the relevance of the first point. The

police decided to release the appellant's photo to the media

because a large number of bank robberies were being committed

in rapid succession by, it seemed, the same robber and because

they had reasonable and probable grounds to believe that the

appellant was the robber. Moreover, in the context of this

urgent situation, there is no evidence to suggest that the

subsequent photo line-up identification process was an

unreasonable police practice. With respect to the second point,

it would have been preferable for P.C. McLaughlin to segregate

the two tellers before interviewing them. However, both tellers

remained firm in their view that the appellant was the robber.

Indeed, one of the tellers was shown a photo of Mr. Sotomayer

on the eve of the first trial and reaffirmed that the appellant

had robbed her bank.

[93] Finally, and of particular importance, the internal

guidelines that the appellant relies on were not mandatory

practices for the Hamilton police at the time. Detective Loft

described them as "a guideline that was made up by one member

of the Ident Branch". Professor Lindsay, the defence expert on

identification evidence, testified, as noted by the trial

judge, that "there were certainly no uniform rules" across

different police departments. The appellant simply did not

demonstrate that the guidelines constitute the standard

required of a reasonable police officer in such circumstances.

[94] It is also instructive to note Detective Loft's

description of his own photo line-up presentation procedures.

On cross-examination, he testified:

Q. You say your method was just as effective. What was your

method?

A. Normally, when I showed a photo lineup I showed 12

separate pictures sequentially, with the photograph of

the suspect within the pictures. I tried to isolate the

person so that no one else was around, say an office,

if we were at a bank. I would ask the person or I would

tell the person that the person that robbed them or the

suspect in this case may or may not be within the 12

pictures. I wanted them to look through the pictures

one at a time and to see if they saw anyone in relation

to the crime, whether that be the robbery or another

crime. I would then allow the witness to, one at a

time, carefully view the pictures one at a time,

turning one over as they were finished. I would not say

anything. If they came to a picture and they made an

utterance with regard to any of the pictures in the

lineup, I would write it down. And that was pretty well

common practice for many officers within the

investigative area. [page504]

[95] Following this response, counsel for the appellant did

not suggest to the witness that any aspect of this procedure

was problematic. My own observation is that the procedure seems

fine, and that there is no evidence suggesting otherwise.

[96] The appellant's structural bias submission raises, in

my view, a more troubling issue. The appellant is an Aboriginal

person. The photo line-up consisted of his photo and the photos

of 11 Caucasian males. The appellant submits that this was an

unfair line-up that tainted the entire identification

procedure.

[97] There is a complete answer, on the facts, to this

submission. The appellant was originally charged with ten

robberies, one of which took place on January 23, 1995.

Ultimately, he faced a trial in relation to only this robbery.

The photo line-up that the appellant attacks was not part of

the evidence concerning this robbery. Rather, the

identification evidence about the January 23 robbery was the

sighting by P.C. Stewart and the positive identification of the

appellant by two bank tellers based on a newspaper photograph

on their desks. It follows that there is no causal link between

the photo line-up and the appellant's arrest, detention and

trial on the charge relating to the January 23 robbery. He

would have been arrested on January 27, detained and tried

regardless of any negligence in preparing the photo line-up.

However, because the trial judge addressed the photo line-up

issue, I will also consider it on the merits.

[98] The photo line-up was prepared by Sergeant Terry Hill of

the Identification Branch. I think it is important to set out

fully the process Sergeant Hill followed in preparing the photo

line-up in this case. On cross-examination he testified:

Q. Okay. Volume one, tab 14, if you could turn that up,

please, appears to be a search that was conducted by

Ident on January 12th, 1995, for a suspect whose

description met the parameters that are set out there:

goatee, someone who would be born later than 1965 and

earlier than 1975, is that right?

A. You said the word suspect. I don't know whether it's a

suspect or . . .

Q. All right.

A. ... a target.

Q. Target. Fine, we'll use your word. So in terms of age,

date of birth between 1965 and 1975, that's what's

being requested there?

A. Yes, sir.

Q. Goatee?

A. Yes, sir.

Q. Male? [page505]

A. Yes, sir.

Q. Medium build.

A. Yes, sir.

Q. And someone of Hispanic, Native or Caucasian race?

A. Yes, sir.

Q. And then as I understand it you have a database with

some 20,000 persons in it, or at least at the time

there was approximately 20,000 persons?

A. There'd be approximately 20,000 individuals. There

could be 60 to 70,000 photographs.

Q. Right. And that each photograph, when it gets entered

into the system, it gets the various criteria or put in

various categories so that they can be called up a

later date? Is that right?

A. Technicians provide input as to the description of the

person they're taking a picture of, yes.

Q. So that what you can do then is you put in these factors

and the process is that you'll get a number of

pictures spat out of the computer which, hopefully,

will meet these criteria?

A. Yes, sir.

Q. So, as I understand the process, when you would have

been given the request to make a photographic lineup

involving Mr. Hill, you would have looked at his

picture and his criteria and sought to match those

criteria in the system?

A. Yes, sir.

Q. And then we see, if you turn up at tab 18, there is a

series of suspect descriptions. And five pages in there

is a description of George Jason Hill which refers to

his date of birth, his hair, his facial hair and his

race, among other factors. Do you see that?

A. Yes, sir.

Q. So you would have looked at that description, then on

that basis entered in the various criteria that are set

out at tab 14, in an effort to get people who looked

like Mr. Hill?

A. If that was the only photograph of Mr. Hill, that would

have been the description we were working with.

Q. All right. And what appears to have happened is that

after -- I'm sorry -- at tab 14 there are 60 pictures

that -- or 60 identification numbers which are set out

there?

A. Yes, sir.

Q. Six columns of ten. And is that the limit of the

computer or is that what the computer normally comes up

with when you put forward the criteria? Why 60?

[page506]

A. From the information that was used to search the

database?

Q. Yes.

A. Only 60 people fit that criteria.

Q. And then if we see at tab 15, and we can compare the

numbers, but it appears that 12 of those numbers that

are in the 60 are listed in tab 15?

A. Yes, sir.

Q. So the process then is you take the 60, you narrow it

down to the best 12?

A. Yes, sir.

[99] I would make several observations about this testimony.

First, the request for a photo line-up was not limited to

Aboriginal persons; it named Hispanic, Aboriginal and Caucasian

races, which was consistent with the evidence the police were

collecting at the time. Second, the original narrowing, from

20,000 photos to 60, was performed by a computer. Third, the

further winnowing from 60 to 12 photos was done by

Sergeant Hill, a police officer trained in photo identification

who prepared 700-900 such line-ups each year.

[100] Did the trial judge make a palpable and overriding

error in concluding that the line-up generated by this process

did not fall below the required standard of care? In answering

this question, it is important to look at the evidence. Four

witnesses testified about the line-up.

[101] Sergeant Hill testified:

Q. Okay ... did you satisfy yourself after preparing that

lineup that it was a fair lineup?

A. Yes, sir.

Q. And what was the basis for that conclusion?

A. Generally speaking, the people that were included with

Mr. Hill's photograph have similar facial

characteristics as Mr. Hill.

Q. And do the facial characteristics necessarily depend on

race?

A. No, sir.

[102] Detective Loft, the lead investigator and the officer

most involved in showing the photo line-up to witnesses,

testified about his review of the photo line-up after he

received it:

Q. Did you review those photographs, Officer, or did you

review the photographs that you had before approaching

the witnesses on January 17th and 18th?

A. Yes. [page507]

Q. And what was the purpose of that review?

A. To see that the pictures looked similar and that it was

what I viewed to be a fair lineup.

Q. And did you satisfy yourself?

A. Yes.

[103] Detective Millin testified in cross-examination:

Q. And would you agree with me that an aspect of having a

fair lineup is when you have a witness of a particular

racial background, that you try and put in foils of the

same racial background?

A. I can't answer that. I didn't make up the photo

lineups.

Q. But it looked like a fair lineup to you?

A. This looks like a fair lineup to me.

[104] The fourth witness who testified about the composition

of the line-up was Professor Lindsay. He described structural

bias as something that arises if one of the photos is of a

person who, visually, looks different from the person in other

photos. He then responded to a hypothetical question with

factors quite close to the line-up in this case:

Q. Let me give you an example and I want to ask you if,

based on this example, structural bias would be a

concern. The example is of a person who is accused of

10 bank robberies. There is a single perpetrator

theory. Many of the witnesses to the various bank

robberies have described the person's complexion as

being non-white. The varying descriptions included

Hispanic, Native Indian, Mulatto, dark skinned. No

witness described the perpetrator as Caucasian, and a

lineup is prepared with one visibly Native Indian

individual and 12 visibly Caucasian -- sorry, 11

visibly Caucasian persons. Is that a lineup where there

would be -- is that -- is there any issues regarding

structural bias in a lineup in that example?

A. As described, if you can tell that the one person is

non-Caucasian, non-European ancestry and you can tell

the other 11 are, or believe the other 11 are, you have

as strong a bias structurally as you can get. The

research evidence on that shows that the likelihood of

selecting the suspect, assuming the suspect is the one

that's standing out, is virtually the same whether

they are guilty or innocent.

(Emphasis added)

[105] I make two observations about this response. First, it

is a theoretical response and, second, the response is grounded

in an important assumption -- "if you can tell that the one

person is non-Caucasian ... and you can tell the other 11 are

... "and "assuming the suspect is the one that's standing

out ...".

[106] Importantly, on cross-examination Professor Lindsay was

moved from the theoretical to the specific. He testified:

[page508]

Q. Well, how would you approach it?

A. The way I would approach it is take the lineup, the

description provided by the witness who had made an

identification, provide that description to at least

several dozen people, ask them to choose a person from

the array that they think is the best match to that and

then look at the distribution of -- all these people

had never seen any of these lineup members -- ask them

to choose the best fit to the description, and then see

how the choice is distributed across lineup members and

use the empirical data that you derived from that.

You can use statistical tests to tell you the likelihood of

getting as many choices of the suspect as you actually get

and if that distribution shows a disproportionate number of

choices of the suspect, you conclude that you have a

structurally biased lineup. My own individual judgment on

it is not worth any more than any other individual's.

Q. And you didn't perform that empirical analysis in this

case ...

A. That's correct.

Q. . . . did you? So when you make the comments about

structural bias, that's just in a general sense, as a

general proposition?

A. It's a set of principles, yes, and one would have to

decide whether they believed the lineup was

structurally biased or not.

Q. And you can't tell His Honour whether in this case the

lineup was structurally biased?

A. No, I cannot.

(Emphasis added)

[107] In my view, this testimony is crucial for two reasons.

First, Professor Lindsay describes a research methodology for

questions of structural bias that would involve "several dozen

people". To require the police to use this methodology would be

unrealistic: it is too time-consuming, expensive and complex.

Nor does he say they should. Moreover, Professor Lindsay did

not perform the research with respect to the line-up in this

case. Second, Professor Lindsay specifically stated that he

could not say that the line-up in this case was structurally

biased, a conclusion which he reiterated later in his

testimony.

[108] Let me summarize my conclusions on this important and

troubling issue. The appellant in effect seeks a judicial

pronouncement that this photo line-up with one Aboriginal

person and 11 Caucasians is presumptively structurally biased.

Although such a line-up is, intuitively, problematic and far

from ideal, the appellant offered no evidence to support his

proposed pronouncement. Indeed the trial judge concluded the

appellant being a Native Canadian did not make him stand out in

the line-up and did not affect his selection. That finding of

fact was open to him on the evidence so that even if Professor

Lindsay's [page509] evidence set out the standard of care on

this score, the appellants have not demonstrated negligence

through any structural bias of the photo line-up.

[109] In a proper case with good expert testimony grounded in

appropriate research, the pronouncement sought by the appellant

might be made. However, this appeal is not that case. In the

face of the testimony about the line-up from police officers

Loft, Millin and Hill that it was a fair photo line-up, and

Professor Lindsay's inability to assert that the line-up was

structurally biased, the trial judge's conclusion that the

photo line-up was fair is not, in my view, a palpable and

overriding error.

[110] The appellant also contends that the police

investigation after Mr. Hill was arrested fell below the

requisite standard of care. Their central assertion here is

that Detective Loft conducted an inadequate reinvestigation of

the charges against Mr. Hill after Mr. Sotomayer was arrested

for three bank robberies, including one for which Mr. Hill was

originally charged.

[111] I accept that the police have a continuing duty to

investigate a crime, including a duty post-arrest to examine

potentially exculpatory evidence that comes to their attention:

see Chartier v. Quebec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474,

1979 17 (SCC), 104 D.L.R. (3d) 321, and Oniel v. Marks, 2001 24091 (ON CA), [2001] O.J. No. 90,

2001 24091 (ON CA), 195 D.L.R. (4th) 59 (C.A.). Indeed, Detective Loft testified

that he recognized this duty:

Q. And you had a duty to continue to investigate

information that came to your attention following

charging a person, if it was relevant to the guilt or

the innocence of the person?

A. Yes.

[112] I do not agree with the appellant's submission that

Detective Loft breached this duty. Hamilton is a fairly large

city with many bank robberies in a given year. After the

appellant was arrested, there were more bank robberies.

Detective Millin, who worked out of a different office, was

assigned to investigate the later robberies. When Detective

Loft heard about the later robberies, he did not think that

they cast doubt on his arrest of the appellant. He testified:

Q. Okay. What did you do when you learned that Centennial

Credit Union had been robbed by someone very similar in

appearance, slightly different in approach, to Mr.

Hill?

A. Well, I was aware it was being investigated by another

officer. The information I had, the second person had a

gun. It was, to my mind, a different MO than the

original plastic bag robberies. I didn't make a

connection. [page510]

Q. So it didn't occur to you that this could be connected

to the first robbery, or this couldn't ...

A. I didn't feel it was.

Q. And the reason why you didn't, I take it, that was

because there was a gun involved in the second?

A. That's one of the reasons, yes.

Q. Were there any other reasons?

A. Well, I felt that we had the right robber in jail.

Q. And could you tell His Honour why you thought you had

the right robber in jail? What was your basis for

thinking or feeling that?

A. Because of the eyewitnesses from the banks and the two

police officers that had picked him out as being the

person either near the bank or part of the surveillance

photos.

[113] There are two components in this explanation. First,

after arresting a person for ten robberies in which no one saw

a gun, Detective Loft states that when he became aware that the

later robberies were committed by a man with a gun, he did not

make a connection. I can see no basis for criticizing this

analysis nor any evidence that it fell below the standard

required of police officers in such a circumstance. Second,

Detective Loft refers in this passage to what I would call the

constants, the evidence that did not change even after

Mr. Sotomayer was arrested -- P.C. Stewart's identification of

the appellant at the January 23 robbery and eyewitness

identifications of the appellant.

[114] There is no evidence of the standard of care required

of police officers in such a circumstance. Moreover, there is,

in my view, a constellation of other factors that suggests that

Detective Loft was not remiss in the way he performed his

duties after the appellant was arrested. The most important

factor is that the picture did change significantly between

arrest and trial. Two charges were withdrawn before the

preliminary inquiry. Two more charges were dropped during the

preliminary inquiry. Five of the remaining charges were

withdrawn by the Crown prosecutor at the start of the trial.

[115] The reality is that the appellant went to trial on a

single charge -- the January 23 robbery. On that charge, there

were P.C. Stewart's visual identification (Detective Millin

testified about his discussion with Stewart regarding the

identification of the appellant) and the unwavering

identification and testimony by the two tellers, one of whom

was shown a photo of Mr. Sotomayer and maintained her position

that the appellant committed the robbery. [page511]

[116] In addition, I note that the ultimate decision to

proceed to trial on a single charge was made by Joseph Nadel,

the Crown prosecutor. The appellants discontinued their action

against him.

[117] Moreover, defence counsel received disclosure of the

Sotomayer file before the first trial. The possibility that

Mr. Sotomayer was the perpetrator of the January 23 robbery for

which the appellant was charged was central to the defence at

the first trial. Crown prosecutor Nadel testified about the

Sotomayer file and the use defence counsel, Mr. Kerr, made of

it at the trial:

Q. Now these statements that you referred to earlier

mentioned Francesco Sotomayer?

A. Yes.

Q. Was there any discussions between you and Mr. Kerr in

that regard?

A. Yes. I mean he knew from the get-go that his defence was

this isn't Mr. Hill, it's Mr. Sotomayer. And he knew

that I was not going to attempt to prove it was Mr.

Hill on other robberies where witnesses had recanted

and resiled. So that issue was front and centre. He

actually called -- and I can't recall whether he

called Ms. Noel or Ms. Gatehouse, but I know that he

called some witnesses to say on a prior occasion I said

I was robbed by Mr. Hill, I now realize I made a

mistake, it was Mr. Sotomayer. That evidence was

actually called in front of the jury by Mr. Kerr.

Q. If you can summarize for His Honour, what was the issue

that you were involved with at that first trial?

A. In terms of the one trial I conducted?

Q. Yes?

A. The issue was could I prove beyond a reasonable doubt

that Mr. Jason George Hill committed the robbery of the

credit union, because that was my onus. And the defence

was that the Crown witnesses were credible but

unreliable and had made a mistake and they, like other

witnesses before them on other occasions had

misidentified Mr. Hill as the robber when in fact it

was Mr. Sotomayer. I mean that was essentially the

defence and so that issue was before the jury.

[118] Finally, and of particular importance, I note that when

this court allowed the appeal, it specifically declined to

accept the appellant's principal submission that the verdict

was unreasonable. I set out again what the court said about

this submission:

This is not an unreasonable verdict case. The appellant was

identified as the robber by two cashiers in the Credit Union

that was robbed and as being seen in the area at the time of

the robbery by a police officer who had him under

surveillance. Additionally, there was a video taken by a

surveillance camera and the tape was available to the jury.

The appellant did not testify. In the circumstances it cannot

be said that the verdict was unreasonable. [page512]

[119] The same Crown prosecutor then decided to proceed with

a second trial. At the second trial, there were at least three

crucial evidentiary differences. The defence did not put

forward an alibi defence which was discredited at the first

trial, the defence introduced expert evidence to the effect

that the man in the January 23 surveillance video did not have

a goatee (contrary to the appellant when he was arrested), and

the Crown, to its credit, called Mr. Sotomayer who testified

that he might have committed the robbery for which the

appellant had been charged. [See Note 2 at the end of the

document] The appellant was acquitted.

[120] It is true, as the appellant asserts, that the trial

judge did not explicitly address the reinvestigation issue in

his 20-page reasons. However, he discussed in detail the key

evidence relating to the January 23 robbery -- the

identification evidence of P.C. Stewart and the two tellers,

and Detective Loft's view of this evidence. He also described

how the ongoing investigations and assessments led to the

withdrawal of nine charges. In my view, it is implicit that the

trial judge linked these two factors and regarded as

essentially unchanged the key evidence relating to the robbery

for which the appellant ultimately faced trial.

[121] For these reasons, I conclude that the trial judge did

not commit a palpable and overriding error by determining that

the respondents conformed to the appropriate standard during

their investigation relating to the appellant.

(3) Sufficiency of reasons

[122] The appellant contends that the trial judge's reasons

are not sufficient to allow for meaningful appellate review

and, therefore, do not comply with the standard for reasons for

judgment enunciated by the Supreme Court of Canada in Sheppard.

[123] This submission is misconceived and devoid of merit.

The trial judge heard evidence for eight days. On the eighth

day, the appellant's counsel provided the trial judge with a

written argument. The following day, counsel made their closing

submissions. Six days later, with the evidence and submissions

obviously still fresh, the trial judge released a written

decision. It was a full 20-page decision responsive, both in

law and on the evidence, to the issues. [page513]

[124] The trial judge did not deal with all the evidence. No

trial judge has to do this. However, it is crystal clear from

the reasons for judgment why the trial judge reached the

decision he did -- he found the evidence of police officers

Loft, Matthews and Stewart and Crown prosecutor Nadel to be

credible and, based on their evidence, he concluded that the

respondents' conduct did not constitute either malicious

prosecution or negligent investigation. The trial judge also

reviewed the evidence of the appellant's expert witness,

Professor Lindsay, and concluded that it did not undermine the

quality of the police investigation in this case. The appellant

simply did not demonstrate a standard of care breached by this

investigation.

[125] The Sheppard test is a functional one. The requirement

of reasons is, as expressed by Binnie J. at para. 25, "to

preserve and enhance meaningful appellate review of the

correctness of the decision". As the length of these reasons

displays, the trial judge's reasons pose no barrier to the

exercise of appellate review in this case.

(4) The limitation issue

[126] In light of my proposed disposition of the appeal in

the respondents' favour on the issues of malicious prosecution

and negligent investigation, it is not necessary, strictly

speaking, to address the respondents' submissions on the

limitation period issue. However, for the sake of completeness,

I would indicate that I agree with the appellants' submissions

on this issue. The appellants' action did not fall afoul of

any relevant limitation period.

E. Disposition

[127] I would dismiss the appeal.

[128] Since the appeal raised an issue of public importance

-- whether the decision of this court in Beckstead should be

overruled -- and the Chief Justice directed that the appeal be

heard by a panel of five judges, I would make no order as to

costs.

FELDMAN and LAFORME JJ.A. (dissenting in part): --

Introduction

[129] This case raises two very important issues: (1) whether

this court should overrule its decision in Beckstead v. Ottawa

(City) Chief of Police (1997), 1997 1583 (ON CA), 37 O.R. (3d) 62, [1997] O.J.

No. 5169 (C.A.) and hold that in Ontario there is no tort of

negligent investigation by police; and (2) if there is a tort

of negligent investigation, are the [page514] police in this

case liable to Mr. Hill, an Aboriginal man who was wrongly

convicted of robbery and imprisoned for over 20 months, for

negligent investigation or alternatively, for malicious

prosecution?

[130] We have had the benefit of reading the reasons of

MacPherson J.A. and we agree with his jurisprudential decision

on the first issue, that there is a tort of negligent

investigation by police in Ontario. However, in our view, it is

clear that the Hamilton police were negligent in their

investigation of the robberies for which Mr. Hill was charged,

including the one for which he was wrongfully convicted. It is

also clear that that negligence caused or contributed to the

misidentification of Mr. Hill by several witnesses and

therefore to his wrongful prosecution and the miscarriage of

justice that resulted.

[131] In our view, the trial judge erred in his application

of the law to the facts in this case. He failed to address the

issue of the police failure to reinvestigate once

Mr. Sotomayer was suspected in and eventually arrested for

three of the so-called plastic bag robberies, and subsequently

as the evidence against Mr. Hill was undermined and recanted.

The trial judge also failed to appreciate the significance of

the production and use by the police of a photo line-up that:

(a) included 11 Caucasians and one Aboriginal man, Mr. Hill;

(b) used a photograph of Mr. Hill that had been previously

released to the public through the media; and (c) had the

potential effect of tainting the line-up for the witnesses. He

never addressed the police failure to show a photo line-up

produced for the Sotomayer investigation that contained a

photograph of Mr. Sotomayer and of Mr. Hill to the witnesses to

the January 23 robbery, for which Mr. Hill was wrongly

identified and wrongly convicted. Finally, the trial judge's

rea sons contain bare conclusions on key issues or omit issues

altogether and are therefore inadequate for proper appellate

review. Furthermore, in this very significant case involving

another wrongful conviction of an Aboriginal person in Canada

[See Note 3 at the end of the document], who served more than 20

months in prison for a crime he did not commit, the trial

judge's reasons for exonerating the police do not adequately

explain the basis for that exoneration.

Negligent Investigation

[132] Our colleague defined the standard of care in an arrest

and prosecution context as whether the police had reasonable

[page515] and probable grounds to believe that the appellant

had committed a crime. He also noted that the trial judge found

that the appellant had established a duty of care, proximate

cause and loss. The key issue for the trial judge was whether

the police had met the standard of care. Stated as defined by

MacPherson J.A., did the police initially have reasonable and

probable grounds to believe that the appellant committed the

robberies for which he was charged? And importantly, did the

police continue to have reasonable and probable grounds to

believe that Mr. Hill committed the robberies for which he

continued to be charged, including ultimately, the January 23

robbery: see Chartier v. Quebec (Attorney General), [1979] 2

S.C.R. 474, 1979 17 (SCC), 104 D.L.R. (3d) 321; Oniel v. Marks, [2001] O.J.

No. 90, 2001 24091 (ON CA), 195 D.L.R. (4th) 59 (C.A.), leave to appeal to S.C.C.

refused [2001] S.C.C.A. No. 121?

[133] The trial judge defined the standard of care for police

by adopting a standard described for engineers in the Manitoba

Queen's Bench case of Trident Construction Ltd. v. W.L.

Wardrop and Associates Ltd., 1979 3043 (MB QB), [1979] M.J. No. 454, [1979] 6

W.W.R. 481 (Q.B.), at p. 533 W.W.R.:

[The] degree of skill consistent with the function

discharged, that is, consistent with the measure of skill

displayed by others reasonably competent in that profession

touching matters of like kind. Perfection is not expected;

the world of work, not the ideal of the debating arena, is

the standard.

[134] He then discussed the evidence given by the defence

expert on police photo line-ups, Professor Lindsay, and

concluded that although there are guidelines available to

police including the Hamilton police for preparation and

presentation of photo line-ups, and although these guidelines

were not followed in the Hill investigation, the guidelines are

not mandatory. The trial judge also made his own observation

that although the photo line-up used by Detective Loft for the

Hill investigation contained 11 Caucasians and one Aboriginal

man, Mr. Hill, the Caucasian images were very similar to Mr.

Hill, and concluded [at para. 72]:

Put another way, I do not think that the Caucasian and native

Canadian mix in fact had any sway in the arrangement chosen,

or in the results in regard to Mr. Hill being picked out. I

am satisfied there was a real similarity between Mr. Hill and

Mr. Sotomayer.

[135] We observe first that when discussing the negligence

issue, the trial judge did not address the standard of whether

the police had reasonable and probable grounds to arrest and

then to continue the arrest of Mr. Hill. However, he did

discuss the issue of reasonable and probable grounds to make

the initial [page516] arrest in the context of his

consideration of the malicious prosecution claim.

[136] In that context, the trial judge concluded that

Detective Loft, the officer in charge of the Hill

investigation, had an honest belief in Hill's guilt "at the

operative time", and that his belief was reasonable. The trial

judge based this latter conclusion on the eyewitness

identification of Mr. Hill by Officer Matthews and Officer

Stewart and by the two tellers from the January 23 robbery. The

trial judge stated [at para. 56] that Detective Loft acted in

"the frenzy of the moment" and that "[a]t the time Detective

Loft was required to make his decision, there was an armed

robber on the loose, striking almost daily". Finally, the trial

judge noted that Detective Loft took his case to the Crown

Attorney, who thought there was a reasonable prospect of

conviction, which was then borne out by the conviction for the

January 23 robbery and by the "limited endorsement" of the

Court of Appeal by refusing to find the original verdict to be

unreasonable.

[137] In our view, the trial judge made the following errors

of law and palpable and overriding errors of fact in his

analysis of negligence by the police and of the issue of

reasonable and probable grounds:

-- The only issue he discussed in his analysis of whether the

police met the standard of care in their investigation of

Mr. Hill was the propriety of the photo line-up.

-- In that context, he misapprehended the purport and effect of

the evidence of Professor Lindsay on the question of

structural bias in the make-up of the photo line-up.

-- He addressed only the question of whether the police had

reasonable and probable grounds for the initial arrest of

Mr. Hill and did not discuss whether the police continued

to have reasonable and probable grounds and the obligation

to reinvestigate as the evidence changed.

-- He made two palpable errors of fact: (a) contrary to the

trial judge's finding, the evidence was that Detective

Loft did not discuss the case with the Crown Attorney

before Mr. Hill's arrest, and (b) Mr. Hill was not

arrested in the frenzy of the moment, nor was the plastic

bag robber armed in the pre-February 1995 robberies; in

fact, Detective Loft was out of town on a two-week course

at the time of the arrest. We consider these errors to be

overriding errors because they materially contributed to

the trial judge's assessment of the [page517] strength of

the identification of Mr. Hill and therefore the apparent

strength of the reasonable and probable grounds for his

initial and continued arrest, and to his assessment of the

circumstances under which the police were operating when

they wrongfully arrested the appellant.

-- The trial judge's reasons did not meet the requirements in

R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30.

On the two key issues that we have referred to, the failure

to reinvestigate and the propriety of the photo line-up,

the reasons do not address the failure to reinvestigate at

all. Furthermore, the reasons do not attempt to reconcile

the trial judge's finding that the photo line-up procedure

used by the police was "dangerous" and resulted in the

wrongful conviction of Mr. Hill, with his conclusion that

the police officers met the standard of care.

Reasonable and Probable Cause

[138] The question of reasonable and probable grounds for

arrest and prosecution is one of law. The standard was defined

in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No.

86, at p. 193 S.C.R., and confirmed in Proulx v. Quebec

(Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, [2001] S.C.J. No. 65,

at para. 10:

This test contains both a subjective and objective element.

There must be both actual belief on the part of the

prosecutor and that belief must be reasonable in the

circumstances. The existence of reasonable and probable cause

is a matter for the judge to decide as opposed to the jury.

(a) For the initial arrest

[139] One of the appellants' claims on this appeal was that

the trial judge erred in concluding that the police had

reasonable and probable grounds for the original arrest of Mr.

Hill. Detective Loft identified three bases for his belief in

Mr. Hill's guilt when he arrested him:

-- the identification by the two tellers who witnessed the

January 23 robbery;

-- Officer Matthews' recollection of Mr. Hill from the video

of the January 5 robbery as someone he had previously

arrested, and his identification of Mr. Hill from the media

photo; and

-- Officer Stewart's observation of Mr. Hill outside the

credit union immediately before the January 23 robbery.

[page518]

[140] Clearly, the identification by the two tellers was

tainted from the outset. As the trial judge noted, the two

tellers were not segregated by the constable who interviewed

them initially. Instead, their evidence was obtained together,

contrary to the usual police practice, and the Report on the

Prevention of Miscarriages of Justice, which recommends that

witnesses never be interviewed together: see Canada, Federal/

Provincial/Territorial Heads of Prosecutions Committee

Working Group, Report on the Prevention of Miscarriages of

Justice (Ottawa: Department of Justice, 2004) at 54.

Furthermore, they had in front of them the picture of Mr. Hill

that had been released to the media by the police, identifying

him as the suspect in the plastic bag robberies. Also, Officer

Matthews' "serendipitous" (as the trial judge stated)

recollection and identification of Mr. Hill from a previous

arrest was questionable, and, as the trial judge noted, Officer

Stewart's evidence had several inconsistenc ies.

[141] However, the trial judge was entitled to accept that

Detective Loft honestly believed that Mr. Hill was the plastic

bag robber and that based on the cumulative evidence, including

the belief that there was only one robber, it cannot be said

that the trial judge made a palpable and overriding error in

finding that the belief was reasonable at the time of his

arrest.

(b) The ongoing duty to investigate

[142] One of the central issues in the case was the failure

of the police to reinvestigate the robberies once Mr. Sotomayer

was identified and eventually charged as the plastic bag robber

in two robberies in February following Mr. Hill's arrest, and

in one of the December robberies for which Mr. Hill had been

charged. It was clear that Mr. Sotomayer looked very much like

Mr. Hill. Yet the trial judge did not address the duty to

reinvestigate as part of the standard of care.

[143] We agree with our colleague that it is clear that the

police have a continuing duty to investigate a crime and to

continue to examine exculpatory evidence after charges have

been laid. And as our colleague also points out, Detective Loft

acknowledged this duty in his evidence. However, in the face of

mounting evidence that Mr. Hill may have been misidentified as

the plastic bag robber, Detective Loft took no steps at any

time to reinvestigate the robberies for which Mr. Hill was

charged.

[144] The following is a list of evidence that was

potentially exculpatory of Mr. Hill, but which was not pursued

by Detective Loft:

-- On January 25, before Mr. Hill's arrest, a Crime Stoppers

tip was received by the police, saying the robberies were

[page519] being committed by two men, a Cuban named

Pedro and a Spaniard named Frank. They used a black vehicle

as a getaway car. Pedro was due to appear in court on the

coming Monday on an impaired driving charge. Frank had been

released from jail the previous summer and came out acting

tough. The informant learned the information from a pot

dealer who sold to Pedro and Frank. Detective Loft was away

on a course when this tip came in but he never followed up

on it, although Mr. Sotomayer was of Hispanic origin and

went by the name Frank.

-- Following Mr. Hill's arrest on January 27, the police

executed a search warrant at the home where Mr. Hill was

living and found no physical evidence there to corroborate

his involvement, such as police bait money or clothing from

the robberies.

-- Two more plastic bag robberies occurred while Mr. Hill was

in custody, one on February 7 and one on February 10. Both

robberies were at institutions previously robbed. At one,

the witnesses said the robber looked similar to the picture

of Mr. Hill that had been published in the newspaper and at

the other, the witness said the robber was the same person

who had robbed the bank before. Detective Loft discounted

this evidence, which clearly showed that the witnesses'

identification of Mr. Hill was mistaken, because the robber

now had a gun.

-- On February 14, a Crime Stoppers tip came in from two

informants who said that a man named Frank was now using a

gun and wearing a Chicago Bulls jacket, that Frank looked

like Mr. Hill and that Frank was laughing because Hill "was

getting rapped for all robberies in the area". Detective

Millin, who was the officer in charge of the February

robberies, followed up on the two Crime Stoppers tips and

was able to corroborate some of the information contained

in them such as the licence number of the getaway car. This

led him to conclude that Mr. Sotomayer was at least

responsible for the February robberies and the December 16

robbery. On March 7, 1995, both the December 16 and 19

robbery charges were withdrawn against Mr. Hill. Mr.

Sotomayer was eventually charged with the February

robberies, as well as the December 16 robbery. Detective

Millin conducted an identification procedure with a witness

to the December 19 robbery, but she was unable to make an

identification. Again, although this tip expla ined that

[page520] Frank the robber was now using a gun in the

robberies, and if true, removed the reason for Detective

Loft not to reinvestigate on that account, he never

followed up on this tip or took it into account.

-- Detective Millin met with Detective Loft in March and April

and discussed the physical similarity between Hill and

Sotomayer. Detective Millin testified that Detective Loft

told him that he would try to have Mr. Hill's preliminary

inquiry, scheduled for April 7, 1995, delayed in order to

give him more time to investigate the robberies.

Nevertheless, the preliminary inquiry went ahead and no

further investigation was done. However, two more charges

were dropped after a witness could not identify Mr. Hill in

dock.

-- Several Crown witnesses who had identified Mr. Hill recanted

after being shown a photograph of Mr. Sotomayer by defence

counsel. As a result, all but the January 23 charge were

withdrawn by the Crown, including the January 5 robbery

charge. This was very significant because it was the

surveillance photo from the January 5 robbery from which

Officer Matthews had made his initial identification of Mr.

Hill and on which Detective Loft had relied so strongly as

the basis for his case.

-- Mr. Hill was acquitted at his second trial, in part because

Mr. Sotomayer was called to testify and implied that he

committed the robbery, but also because for the second

trial, defence counsel had the video from the robbery

enhanced to show that the robber was not Mr. Hill. Before

the first trial, defence counsel asked Detective Loft if

the video of the robbery on January 23 could be enhanced,

but received no response. Detective Loft acknowledged that

he had no note that he ever asked for the video to be

enhanced to try to identify the robber, although he advised

Crown counsel that it could not be done in a way that would

be useful for the defence.

[145] It is apparent that Detective Loft ignored the

potentially exculpatory evidence relating to Mr. Hill and did

no reinvestigation of any of the robberies. When asked why not,

he consistently responded that he remained convinced from the

eyewitness identification of the remaining charges at all

times, that it was Detective Millin who was in charge of the

Sotomayer investigation, and that it was up to the Crown to

withdraw charges.

[146] The evidence showed that it was Detective Millin who

showed Crown counsel in the Sotomayer case the similarity

[page521] between Messrs. Hill and Sotomayer, and it was

that Crown counsel who wrote to Mr. Hill's defence counsel

advising her of the similarity. The letter was copied to

Detective Loft. It is also clear, in our view, that had

Detective Loft done what defence counsel and Detective Millin

did, which was to show witnesses pictures of Mr. Sotomayer, or

a photo line-up with pictures of both men, this miscarriage of

justice would very likely not have occurred.

[147] On this issue some significance has been placed on the

fact that on the appeal of the original conviction of Mr. Hill,

this court declined to find the original trial verdict

unreasonable because there was some evidence of Mr. Hill's

guilt: the two tellers' identification and the video

surveillance of the robbery. As well, the appellant did not

testify. In our view, nothing turns on such a conclusion by

this court, which has a very circumscribed jurisdiction to find

an unreasonable verdict: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381,

2000 SCC 15, [2000] S.C.J. No. 16, at para. 38. The court's conclusion

that the original verdict was not unreasonable on the record in

no way approves the thoroughness or propriety of the police

investigation leading up to the arrest and prosecution of Mr.

Hill.

The Photo Line-up

[148] Detective Loft deliberately chose not to show the two

tellers in the January 23 robberies a photo line-up because

they had already identified Mr. Hill during the robbery using

the media photo, although he acknowledged in cross-examination

that the identification would have been better had the tellers

picked the suspect out of a line-up. One of the tellers was

only shown a picture of Mr. Sotomayer the night before the

trial by Crown counsel; neither teller was ever shown a photo

line-up with both men. In our view, that is the obvious type of

reinvestigation that was required in this case where the men

looked so alike. Certainly the fact that that was the procedure

used by Detective Millin in his Sotomayer investigation, is

strong evidence, if any is needed, that that procedure is what

was called for to meet the standard of care.

[149] However, there is a larger dimension to the issue of

the propriety of the photo-line-up composed of one Aboriginal

and 11 Caucasians. Professor Lindsay described structural bias

in a photo line-up when one person in the line-up is visually

distinct from the others in some way. Its effect is to cause

more incorrect identifications implicating the wrong person,

because the person who stands out is more likely to be picked.

The following question and answer dealt with the issue as it

applied to this case: [page522]

Q. Let me give you an example and I want to ask you if,

based on this example, structural bias would be a

concern. The example is of a person who is accused of

10 bank robberies. There is a single perpetrator

theory. Many of the witnesses to the various bank

robberies have described the person's complexion as

being non-white. The varying descriptions included

Hispanic, Native Indian, Mulatto, dark skinned. No

witness described the perpetrator as Caucasian, and a

line-up is prepared with one visibly Native Indian

individual and 12 visibly Caucasian -- sorry, 11

visibly Caucasian persons. Is that a line-up where

there would be -- is that -- is there any issues

regarding structural bias in a line-up in that example?

A. As described, if you can tell that the one person is

non-Caucasian, non-European ancestry and you can tell

the other 11 are, or believe the other 11 are, you have

as strong a bias structurally as you can get. The

research evidence on that shows that the likelihood of

selecting the suspect, assuming the suspect is the one

that's standing out, is virtually the same whether

they are guilty or innocent.

[150] The trial judge [at para. 71], however, said this about

Professor Lindsay's evidence on structural bias:

In regard to structural bias, that is bias from the way the

line-up is presented, [Professor Lindsay] recommended that

pictures be shown one at a time, that is, sequentially with a

definite answer being elicited before going on to the next

It appears that the trial judge misapprehended Professor's

Lindsay's evidence on this critical issue, relating it to the

method of presentation of the photos rather than the make-up of

the line-up itself.

[151] The trial judge then went on to observe that the

pictures of the Caucasians in the line-up were very similar to

Mr. Hill, and he expressed the view that the Caucasian and

Native Canadian mix of people in the photo line-up did not

cause Mr. Hill to be chosen. There are two problems with this

approach. The first is that at least one of the original

witnesses to the robberies described the robber as Aboriginal,

which means that the witness believed she could identify an

Aboriginal person as a visible minority. Such a witness may

well have been influenced by the make-up of the photo line-up,

as suggested by Professor Lindsay.

[152] Moreover, Professor Lindsay himself was asked to give

his own opinion about whether the photo line-up used in this

case was structurally biased. He replied that one person's

opinion was not the proper way to assess. He said that his "own

individual judgment on it is not worth any more than any other

individual's". The trial judge relied on his own opinion in

the face of the evidence of the expert. In R. v. Nikolovski,

1996 158 (SCC), [1996] 3 S.C.R. 1197, [1996] S.C.J. No. 122, the Supreme

Court held that [page523] it is permissible for a trial judge

to identify a person from an unaltered videotape of the crime

on the basis that such a tape constitutes real evidence.

However, that is quite different than forming an opinion of the

fairness of a photo line-up, which is not real evidence, but

rather an aide to identification, the efficacy of which is

based on its effect on all potential witnesses to the crime.

That is why Professor Lindsay's evidence was that at least

several dozen people must be u sed to conduct a statistical

analysis in order to come to an opinion of the fairness or

structural bias of any photo line-up after the fact.

[153] The problem was enhanced in this case because the

picture of Mr. Hill in the line-up was the same as the one

released to the public by the police, where Mr. Hill was

identified as the suspect in the robberies, so that witnesses

looking at the line-up might recognize Mr. Hill as the police-

identified suspect. This phenomenon was referred to by

Professor Lindsay as "unconscious transference". It was

recognized by this court in R. v. Goldhar (1941), 76 C.C.C.

270, 1941 311 (ON CA), [1941] 2 D.L.R. 480 (sub. nom R. v. Smokler) (C.A.), that

showing a photograph of a suspect to a witness can seriously

impair the usefulness of that witness for the future because

"thereafter the person who has seen the photograph will have

stamped upon his memory the face he has seen in the photograph,

rather than the face he saw on the occasion of the crime" (p.

271 C.C.C.). Similarly, in discussing the misidentification of

Thomas Sophonow by eyewitnesses in his report on the Sophonow

Inquiry, Commissioner Cory asked rheto rically, "[H]ow many

people would have been directed to Thomas Sophonow simply

because they had a picture of him published in a recent edition

of a Winnipeg newspaper?" See Peter deC. Cory, The Inquiry

Regarding Thomas Sophonow: The Investigation, Prosecution and

Consideration of Entitlement to Compensation (Winnipeg,

Manitoba Justice, 2001) ("Sophonow Report") at 22.

[154] The second problem involves the perception of fairness,

which is so basic in the administration of justice, and which

has become particularly important in this country where

Aboriginal justice is concerned. In R. v. Gladue, [1999] 1

S.C.R. 688, 1999 679 (SCC), [1999] S.C.J. No. 19, the Supreme Court discussed

the problem in very frank terms. At paras. 61, 62, 63 and 64,

the court said:

Not surprisingly, the excessive imprisonment of Aboriginal

people is only the tip of the iceberg insofar as the

estrangement of the Aboriginal peoples from the Canadian

criminal justice system is concerned. Aboriginal people are

over-represented in virtually all aspects of the system. As

this Court recently noted in R. v. Williams, [1998] 1 S.C.R.

1128, at para. 58, there is widespread bias against

Aboriginal people within Canada, and "[t]here is [page524]

evidence that this widespread racism has translated into

systemic discrimination in the criminal justice system".

Statements regarding the extent and severity of this

problem are disturbingly common. In Bridging the Cultural

Divide, supra, at p. 309, the Royal Commission on Aboriginal

Peoples listed as its first "Major Findings and Conclusions"

the following striking yet representative statement:

The Canadian criminal justice system has failed the

Aboriginal peoples of Canada -- First Nations, Inuit and

M‚tis people, on-reserve and off-reserve, urban and rural

-- in all territorial and governmental jurisdictions. The

principal reason for this crushing failure is the

fundamentally different world views of Aboriginal and non-

Aboriginal people with respect to such elemental issues

as the substantive content of justice and the process of

achieving justice.

To the same effect, the Aboriginal Justice Inquiry of

Manitoba described the justice system in Manitoba as having

failed Aboriginal people on a "massive scale", referring

particularly to the substantially different cultural values

and experiences of Aboriginal people: The Justice System and

Aboriginal People, supra, at pp. 1 and 86.

These findings cry out for recognition of the magnitude and

gravity of the problem, and for responses to alleviate it

[155] In that context, a photo line-up where the target

suspect is the only Aboriginal person among a group of

Caucasians, even where the people can be viewed generally as

similar in appearance, perpetuates the appearance of

unfairness.

[156] We agree with MacPherson J.A. that it would be

unrealistic to require the police to use Professor Lindsay's

methodology, involving a canvass of several dozen people, to

determine if a line-up is structurally biased, and that

Professor Lindsay does not suggest that they should. The

significance of Professor Lindsay's evidence is that a line-up

constructed as the one the police used in the Hill

investigation is prima facie potentially structurally biased

with obvious potential for unfairness. When that is coupled

with the clear perception of unfairness when the suspect is the

only member of a visible minority in the line-up, and where the

police choose to use such a line-up rather than revise it to

remove the problem, regardless of the clear potential for

unfairness, that conduct falls below the standard of care

required of police.

[157] Our colleague also expressed the view that because the

photo line-up was not shown to the January 23 tellers, there is

no causal link between any deficiencies in the photo line-up

and the miscarriage of justice and that Mr. Hill would have

been arrested on January 27, detained and tried, regardless of

any negligence in preparing the photo line-up. We disagree for

two reasons.

[158] First, as noted by the trial judge in his reasons, on

January 17, 1995, Detective Loft showed this photo line-up to a

[page525] number of witnesses to the robberies. Most

identified Mr. Hill as the robber, although they thought he did

not have a goatee. It is apparent that these witnesses'

misidentification of Mr. Hill as the robber materially

contributed to Detective Loft's fixation on Mr. Hill as the

perpetrator of the plastic bag robberies, and therefore to his

initial arrest of Mr. Hill. It was because he was convinced

that the witnesses had identified the right person that

Detective Loft neglected to do any reinvestigation of the

robberies in the face of the emerging exculpatory evidence. The

misidentification from the photo line-up contributed to

Detective Loft's tunnel vision on the issue of Mr. Hill, which

resulted in Mr. Hill's arrest, detention, wrongful prosecution

and the ensuing miscarriage of justice. Accordingly, we believe

there is a clear causal link between the photo line-up and Mr.

Hill's wrongful conviction.

[159] Additionally, we note that the trial judge also

appeared to find a sufficient causal link between the photo

line-up and Mr. Hill's wrongful conviction. Specifically, at

para. 61 of his reasons for judgment, the trial judge noted

that the elements of negligence are (1) duty, (2) failure to

conform to the standard required, (3) proximate cause, and (4)

loss. He then stated that "[t]hree of the four requirements are

in my view present. The issue for the court, in this case, is

that of the standard of care required of the police officers in

this case and was that standard met" (para. 62). As noted

above, the only issue the trial judge discussed in his analysis

of whether the police met the standard of care in their

investigation of Mr. Hill was the propriety of the photo line-

up. Therefore, it appears that the trial judge had no

difficulty in finding a causal link between the police conduct

in showing this photo line-up to witnesses in their

investigation of the Hill case and the loss suffered by Mr.

Hill .

Sufficiency of the Reasons

[160] We agree with the appellants that the trial judge's

reasons in this case were not sufficient to meet the

requirement in Sheppard and R. v. Kendall (2005), 75 O.R. (3d)

565, 2005 21349 (ON CA), [2005] O.J. No. 2457 (C.A.). The fact that the reasons

consist of 20 typed pages is not determinative. As Doherty J.A.

said in R. v. Lagace, 2003 30886 (ON CA), [2003] O.J. No. 4328, 181 C.C.C. (3d) 13

(C.A.), at para. 32:

Sheppard emphasizes that the adequacy of reasons is not

measured by the inch or the pound, but rather by the extent

to which those reasons allow meaningful exercise of the

rights of appeal.

[161] Much of the reasons are used to review the evidence of

the history of the robberies and the investigation, including

the [page526] numerous false identifications made by police

officers and by lay witnesses after the public was given Mr.

Hill's photo and told that he was the plastic bag robber. The

trial judge also recounted the identification of Mr. Sotomayer

as another plastic bag robber and then the discovery by

Detective Millin that Mr. Sotomayer was likely responsible for

at least one of the robberies for which Mr. Hill was charged,

and the ultimate withdrawal by the Crown Attorney of all but

one of the original ten charges against Mr. Hill when the

evidence of his identification became undermined.

[162] The trial judge did not attempt to explain why he

concluded that in spite of all the errors and missteps, the

police were not negligent. Moreover, nowhere in his reasons

does the trial judge address the police duty to reinvestigate

in light of potentially exculpatory evidence. The trial

judge's main finding was that he believed the police

witnesses. In the case of Officer Stewart, the trial judge

explained away the inconsistencies he noted in his evidence,

but which he did not articulate, by the passage of time, and

found him credible. Similarly, in his conclusion about Officer

Matthews' credibility, the trial judge excused Officer

Matthews because of the passage of eight years, accepted his

evidence and found him credible. However, in his earlier

description of that officer's evidence, the trial judge

described that evidence in skeptical language, saying that the

officer claimed he recognized Mr. Hill as someone he had

arrested in the past, and referred to Officer Matthews'

spontaneous reco gnition of Mr. Hill's photo as "seemingly

serendipitous".

[163] Finally, early in the judgment, the trial judge

described Detective Loft's procedure for having witnesses

identify the robber using the impugned photo line-up as

"dangerous". He said [at para. 29]:

On January 17, 1995 Detective Loft presented the photo

line-up to a number of other witnesses to the robberies. Most

identified Mr. Hill as the robber, but most thought he did

not have a goatee. It is clear that this identification by

the witnesses of the first nine robberies, because of

technique, but also because this same picture of Mr. Hill had

been in the media was far less than optimal, indeed,

dangerous, identification evidence. Detective Loft used his

own techniques that he had developed throughout his long

police career in regard to methodology.

(Emphasis added)

However, in the critical portion of the reasons where he found

that this procedure was within the standard of care, the trial

judge did not explain how a procedure that he found was

dangerous and that caused a grave miscarriage of justice to

occur could be within the standard of care required of police

officers. [page527]

[164] We also note that this trial and judgment took place in

2003, two years after Commissioner Cory released his report on

the wrongful conviction of Thomas Sophonow and five years after

Commissioner Kaufman released his report on the wrongful

conviction of Guy Paul Morin: see Sophonow Report, supra;

Ontario, The Commission on Proceedings Involving Guy Paul

Morin: Report (Toronto: Ministry of the Attorney General, 1998)

("Kaufman Report"). In both the Sophonow Report and the

Kaufman Report, the Commissioners reviewed the factors that

significantly contribute to wrongful convictions, two of which

were clearly present in this case: (1) tunnel vision by the

police in their fixation on Mr. Hill no matter what evidence

did not support their theory (see especially Kaufman Report,

supra, vol. 2 at 1136-1138); and (2) faulty eyewitness

identification evidence (see especially Sophonow Report, supra

at 33). In that context, it was even more incumbent on the

trial judge to a cknowledge these important reports and to

clearly articulate why, in the face of those factors, he

concluded that there was no negligence.

[165] The trial judge's failure to explain his conclusions,

other than in bald findings, makes appellate review difficult.

It also leaves the losing party, Mr. Hill, and the public

without a clear explanation of why he did not succeed in his

action. This is a very serious and important case about a

failure of the administration of justice in Ontario in the

context of a wrongful conviction and imprisonment of an

innocent person who sought the intervention of the court. In

our view, this was a case that cried out for very clear and

comprehensive reasons to explain why the Aboriginal appellant,

who suffered a grave miscarriage of justice at the hands of the

justice system, does not deserve any compensation.

[166] Normally, when reasons for decision are so inadequate

as to amount to an error of law, the appropriate remedy is to

order a new trial. However, from the record, it is clear, as we

have described above, that the police were negligent in their

investigation of Mr. Hill, and this court is in a position to

grant judgment on that cause of action.

Malicious Prosecution

[167] In light of the unanimous conclusion of this court that

there is a cause of action for negligent investigation in

Ontario, it is unnecessary to address the appeal on the issue

of malicious prosecution. However, as we have concluded that

the trial judge erred in law in his finding that the police had

reasonable and probable grounds to continue with the charges

against Mr. Hill, if [page528] it were necessary to determine

the malicious prosecution issue, we would order a new trial on

the issue of malice.

Conclusion

[168] We agree with our colleague that the appellants'

action is not statute-barred. We would allow the appeal on the

issue of negligent investigation, set aside the judgment below

and grant judgment in favour of the appellants. As the issue of

quantum of damages has not been determined, we would order a

new trial on that issue. We would award costs of the appeal to

the appellants in the amount of $50,000, as well as costs of

the trial to be assessed, failing agreement of the parties.

Appeal dismissed.

Notes

Note 1: L'enquˆte policiŠre doit, bien ‚videmment, ˆtre faite

de bonne foi. Elle doit aussi ˆtre s‚rieuse. Les policiers

doivent ‚valuer tant les ‚l‚ments inculpatoires que

disculpatoires, les pond‚rer et rester objectifs quant aux

conclusions de leur enquˆte pour identifier l'existence de

motifs raisonnables et probables.

Note 2: Crown prosecutor Nadal testified: "At the second

trial, by happenstance, Mr. Sotomayer was in the court on a

charge of assault causing bodily harm. I recognized his name and

therefore knew who he was and realized he was in town and

available, so I subpoenaed him and called him on the second

trial."

Note 3: See e.g., Nova Scotia, Royal Commission on Donald

Marshall Jr., Prosecution (Nova Scotia: Queen's Printer,

December 1989).

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