Hill v. Hamilton-Wentworth Regional Police Services Board

Hill v. Hamilton-Wentworth Regional Police Services Board Collection Decisions of the Court of Appeal Date 2005-09-26 Docket numbers C40652 Judges Goudge, Stephen Thomas; Feldman, Kathryn N.; MacPherson, James C.; MacFarland, Jean Louise; LaForme, Harry Smith Subject Civil Decision Content DATE: 20050926 DOCKET: C40652 COURT OF APPEAL FOR ONTARIO GOUDGE, FELDMAN, MACPHERSON, MACFARLAND and LAFORME JJ.A. B E T W E E N : JASON GEORGE HILL, GAYE MARGARET HILL, RONALD JAMES HILL, SHEILA GAUTHIER, MICHAEL EDWARD HILL, JENNIFER GAUTHIER, BRADLEY GAUTHIER and GEORGE T. HILL Plaintiffs (Appellants) Sean Dewart and Louis C. Sokolov for the appellants - and - HAMILTON‑WENTWORTH REGIONAL POLICE SERVICES BOARD, JACK LOFT, ANDREA McLAUGHLIN, JOSEPH STEWART, SID MILLIN, DOMENIC DELIBATO, IAN MATTHEWS, TERRY HILL, LAVERNE URBAN, and JOSEPH NADEL Respondents David G. Boghosian and Anna Casemore for the respondents Heard: April 5, 2005 On appeal from the judgment of Justice T. David Marshall of the Superior Court of Justice dated August 27, 2003, reported in (2003), 66 O.R. (3d) 746. MACPHERSON J.A. A. INTRODUCTION [1] The appellants, Jason Hill (“Mr. Hill” or the “appellant”), an aboriginal young man, and members of his family, appeal from 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), 66 O.R. (3d) 746, 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, 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 10 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 Crimestoppers 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’. [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 Crimestoppers 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 Lepré 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 Crimestoppers 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 10 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 Lepré and Caldwell and the sighting of Stewart in respect of the tenth robbery, the evidence of various 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 Crimestoppers 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 Crimestoppers 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 January 23, 1995. The basis of the Crown’s decision to proceed on this charge was the identification evidence of tellers Lepré and Caldwell and the sighting by P.C. Stewart. Lepré had been shown a photo of Mr. Sotomayer the night before she testified and said that Sotomayer was not the robber. Both Lepré 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 at para. 2 (C.A.)). 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 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. [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] 1 S.C.R. 869. [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 section 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? (2)(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? D. ANALYSIS (1) Malicious prosecution [29] Relying on Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, the trial judge correctly set out the four elements of the tort of malicious prosecution: (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 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: 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 Proulx and in Nelles v. Ontario, [1989] 2 S.C.R. 170. 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, [2002] 2 S.C.R. 235 at para. 36, and H. L. v. Canada (Attorney General), 2005 S.C.C. 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. (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: 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: 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. [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 Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 39 O.R. (3d) 487 (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, as applied and restated in Canada in Cooper v. Hobart, [2001] 3 S.C.R. 537, and Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263. 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 at 1030 (H.L.); Elguzouli-Daf v. Commissioner of Police of the Metropolis, [1995] 1 All E.R. 833 at 842 (C.A.), per Lord Steyn; Kumar v. Commissioner of Police for the Metropolis, [1995] E.W.J. No. 632 at para. 70 (C.A.), 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). [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, 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. [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: 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 straightforward 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 would 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. [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 person 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 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 fifteen 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 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. André, [2003] R.J.Q. 720, leave to appeal to the Supreme Court denied, [2003] S.C.C.A No. 196 and Jauvin v. Quebec (Attorney General) et al., [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 obligation 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. [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 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 twenty 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 R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at 603; Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 at para. 97; Pepsi‑Cola Beverages (West) Ltd. v. R.W.D.S.U., Local 558, [2002] 1 S.C.R. 156 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]. [1] [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. [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‑à‑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: 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 (at p. 94). [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 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: [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 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] 3 S.C.R. 674 at paras. 33‑34; Jauvin v. Quebec (Attorney General) at para. 44. [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: 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 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. [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. [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 10 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? 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? 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. 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: 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 lineup and did not affect his selection. That finding of fact was open to him on the evidence so that even if Professor Lindsay’s 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] 2 S.C.R. 474, and Oneil v. Marks (2001), 195 D.L.R. (4th) 59 (Ont. 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. 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 10 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. [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. [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. [2] 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. [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. Signed: “J.C. MacPherson J.A.” “I agree S.T. Goudge J.A.” “I agree J. MacFarland J.A.” 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), 37 O.R. (3d) 62 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 police in this case liable to Mr. Hill, an Aboriginal man who was wrongly convicted of robbery and imprisoned for over twenty 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 eleven 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 reasons 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, [3] 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 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; O’Neil v. Marks (2001), 195 D.L.R. (4th) 59 (Ont. 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. et al., [1979] 6 W.W.R. 481 at 533: [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 eleven Caucasians and one Aboriginal man, Mr. Hill, the Caucasian images were very similar to Mr. Hill, and concluded: 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 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 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 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] 1 S.C.R. 869. 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] 2 S.C.R. 170 at 193, and confirmed in Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9 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. [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 inconsistencies. [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 Stopper tip was received by the police, saying the robberies were 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 explained that 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 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] 1 S.C.R. 391 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 eleven 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: 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, 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] 3 S.C.R. 1197, the Supreme Court held that 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 used 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, R. v. Smokler (1941), 76 C.C.C. 270 (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). Similarly, in discussing the misidentification of Thomas Sophonow by eyewitnesses in his report on the Sophonow Inquiry, Commissioner Cory asked rhetorically, “[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) at 22 (“Sophonow Report”). [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, 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 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 Métis 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 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] 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. Legace, [2003] O.J. No. 4328 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 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 recognition 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: 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. [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 acknowledge 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 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. Signed: “K. Feldman J.A.” “H.S. LaForme J.A.” RELEASED: “STG” September 26, 2005 [1] L'enquête policière doit, bien évidemment, être faite de bonne foi. Elle doit aussi être sérieuse. Les policiers doivent évaluer tant les éléments inculpatoires que disculpatoires, les pondérer et rester objectifs quant aux conclusions de leur enquête pour identifier l'existence de motifs raisonnables et probables. [2] Crown prosecutor Nadal testified: “At the second trial, by happenstance, Mr. Sotomayer was in 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.” [3] See e.g. Nova Scotia, Royal Commission on Donald Marshall Jr., Prosecution (Nova Scotia: Queen’s Printer, December 1989).