[ql06] TORTS: Police can be sued, Supreme Court rules
- From: Sheldon Erentzen <sheldon.erentzen@xxxxxxxxxxxx>
- To: QL'06 newslist <ql06@xxxxxxxxxxxxx>
- Date: Sat, 06 Dec 2003 12:00:07 -0500
I know you are all studying away, or finishing those last minute
assignments, but--the news don't stop. (What do you think, Ken--spoken
like a real newsman?)
This case is interesting in terms of the eventual repurcussions it may
have for other spheres of public office.
Does this mean that an incompetent Crown prosecution can lead to a suit
of malicious abuse of public office, if the incompetence is seen as
deliberate? Must it be deliberate? Can you have a negligent abuse of
public office? How would this be different from malicious prosecution?
I can only see how it applies to police. I wonder, will it apply to
incompetent investigation methods? I remember witnessing an assault on a
video store owner by an obviously drug-crazed patron. The guy ripped a
computer off the counter it was bolted to and threw it on the floor,
then threw a phone at the clerk...all the while yelling a litany of
curses at the poor man who happened to be from Sri Lanka. I finally
stepped in (I admit it took some time for me to step in. In these
situations you often hope things willl just end quickly or of their own
accord.) and the guy ran off. He came back briefly and then took off
again. The cops had been phoned in the meantime. When the cops came,
they essentiallly proceeded to convince the video-store owner not to
press charges. I stood to the side and to their chagrin kept on
encouraging the clerk to prosecute--it would've erased the sense of
victimhood you can feel in such situations. The cops won out though.
Actually, the owner eventually closed the store (it was in Parkdale),
things got too much for him.
My question is, would the police have been liable under this new tort? I
think so.
Would this lead to police being overloaded with petty assault cases?
Probably...as they say "This would have a detrimental effect on the
conduct of police investigations."
In terms of the video store clerk, this wouldn't be such a bad thing.
[snip]
Police can be sued, Supreme Court rules
By KIRK MAKIN
Globe and Mail Update
Friday, Dec. 5, 2003
The Supreme Court of Canada has opened the door to a lawsuit against
police by the family of a Toronto man slain by police.
The ruling Friday means that the family of Manish Odhavji can sue for
abuse of public office. At the same time, it ushered in an era in which
citizens and public interest groups can sue public officials for all
manner of shortcomings using the civil tort of "malicious abuse of
public office."
Social reformers may now be able to use civil litigation to change
public policy, a tactic U.S. activists have favoured for decades in
furthering causes such as civil rights, affirmative action and access to
medical procedures.
Mr. Odhavji, 22, was killed on Sept. 26, 1997, when police swooped in on
a carefully planned bank heist, sending the robbers scattering. Mr.
Odhavji, who was unarmed, fled in a car. When it was stopped, he began
to run and was shot and killed.
Police at the scene that day refused to provide their notes or speak to
Special Investigations Unit investigators, leaving a dense fog of doubt
about what actually took place. The Odhavji family sued for abuse of
public office and negligent supervision by senior police managers.
"The family is elated," lawyer Julian Falconer said moments after the
ruling. "The main point of this lengthy process was to hold police
officers accountable for corrupt practices in relations to the SIU
investigation. That action for abuse will proceed. The Odhavji family
will find out why this investigation went off the rails.
"The legacy of the Odhavji family is they have ensured that public
officials remain accountable for excesses and abuse," Mr. Falconer said.
The family is seeking vindication and a claim for $8.5-million. Their
statement of claim alleged that the trauma caused them to suffer mental
distress, anger, depression and anxiety. They sued the officers and the
chief of Police, and to actions for negligence against the chief, the
Metropolitan Toronto Police Services Board and the province of Ontario.
While it allowed the lawsuit to proceed against the police officers, the
court struck from the statement of claim actions for negligence against
the police board and the province.
"The circumstances of this case raise a prima facie duty of care owed by
the Chief to the plaintiffs," the court said. It said the failure of the
police to co-operate with the Special Investigations Unit could be seen
to have harmed the plaintiffs.
As the chief was responsible for ensuring that co-operation, it is
reasonably foreseeable that his failure to do so would harm the plaintiffs.
"The failure of a public officer to perform a statutory duty can
constitute misfeasance in a public office," the court said. It said that
to succeed, the plaintiffs will need to show "deliberate, unlawful
conduct in the exercise of public functions" and an awareness that the
conduct was unlawful and likely to injure the plaintiff.
The failure of police to co-operate with an investigation into the
shooting, and the allegation that the chief deliberately failed to
segregate the officers after the shooting, if proved, would satisfy the
requirements the plaintiffs are required to show, the court said.
It struck from the claim several technical allegations involving the
manner in which police notes and other evidence were assembled.
The court also noted that should the case proceed to trial, the
plaintiffs will have to prove that the alleged misconduct by police
"caused anxiety or depression of sufficient magnitude to warrant
compensation."
The court said that police board and the province are not "under a
private law duty to ensure that police officers, as a matter of general
practice, co-operate with the SIU. There is no close causal connection
between the misconduct alleged against the board and the alleged harm.
"The board does not supervise officers and is not involved in their
day-to-day conduct."
It said that courts "should be loath to interfere with the board's broad
discretion to determine what objectives and priorities to pursue or what
policies to enact. ..."
The province is "too far removed from the day-to-day conduct of members
of the force and the Solicitor-General is not under a statutory
obligation to ensure that police officers co-operate with the SIU," it
added.
Earlier, a 2-1 majority of the Ontario Court of Appeal accepted police
arguments that the family was technically precluded from suing because
they were alleging the abuse of a legal duty, not a broad police power.
Equally devastating for the Odhavjis, the court awarded costs against
the family.
Mr. Falconer and co-counsel Richard Macklin argued that the adverse
ruling in the Ontario Court of Appeal gave "blanket immunity" to any
official who deliberately breaks the law, from the prime minister to a
tax collector.
They said it would permit public officials to disobey lawful orders,
knowingly make a false statement, destroy records or accept a bribe.
Police and government lawyers had insisted, however, that allowing the
Odhavji lawsuit could end up costing taxpayers a fortune.
"To impose potential liability would lead to numerous claims alleging
that police failed to apprehend a criminal as soon as they should have,"
a brief to the Supreme Court on behalf of the Ontario Ministry of the
Attorney-General said.
"This would have a detrimental effect on the conduct of police
investigations."
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