In Canada, police have a statutory and common law duty to investigate crime. The duty is owed to the public generally and not specific individuals, including victims of crime. Claims advanced by victims tend to fail for lack of proximity and policy reasons, including the need to ensure police discretion can be exercised solely to advance the public interest and not out of fear of civil liability: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41. Despite the presumption police are immune to civil liability arising from how an investigation is conducted, some exceptions to the rule have emerged from the case law, including:
- a private duty of care to a suspect of a police investigation once he or she has been singled out as the target of the investigation;
- a private duty of care to a potential victim who brings himself or herself to the attention of the police by raising fears about becoming victimized; and
- a private duty of care to a member of a specific, identifiable class of victims known to the police.
Rennalls v Tettey, 2021 ABQB 1, a recent case from the Court of Queen’s Bench of Alberta, has opened the door for a new private duty of care to a victim of crime in relation to the timely execution of a warrant and other court orders.
The Police Investigation and Criminal Proceedings
In May 2009, the Plaintiff reported an alleged sexual assault to the Calgary Police Service (“CPS”). CPS officers took her to the hospital where a sexual assault examination was conducted by a doctor. For reasons unknown, the CPS detective handling the investigation did not send the examination kit for DNA testing. Eighteen months passed before a warrant was obtained by the CPS for the alleged perpetrator’s arrest. No other investigative steps were taken in the intervening time. Three more years passed before the CPS executed the warrant. During that time, the alleged perpetrator continued to live at the address where the assault was said to have taken place and, while the warrant was outstanding, CPS officers attended the alleged perpetrator’s home in response to a call for service without arresting him. The alleged perpetrator was finally arrested in January 2014. A trial scheduled in Provincial Court in May 2015 was adjourned first to December 2015 and subsequently February 2016. The Plaintiff heard nothing more from the CPS or the Crown about her case. On January 20, 2017, the Crown stayed the charges because of the CPS’ delay in advancing the case (i.e. according to the principles set out in R v Jordan, 2016 SCC 27.
The Plaintiff’s Claim against the CPS
In January 2019, the Plaintiff started civil action against the alleged perpetrator and various CPS officers for negligence. She also claimed against the CPS for assault and battery on the basis that she was induced to undergo an intrusive medical procedure at the CPS’ behest when it had no intention of pursuing the investigation. The CPS applied to strike the Plaintiff’s claim on the basis that her pleadings disclosed no reasonable claim.
In reasons indexed as TR v KT, 2019 ABQB 927, the Master dismissed the Plaintiff’s assault and battery claim finding insufficient facts had been pleaded in support of the claim and noting “it is hardly in the interest of sexual assault victims generally to seek to impose liability on the police for obtaining sexual assault kits, as opposed to not obtaining sexual assault kits” (at para 36). He allowed the negligence to proceed, framing the issue as a novel one that required a consideration of whether a victim of crime for which criminal proceedings had been stayed or dismissed due to delay would have a cause of action in law against police and/or prosecutors whose alleged carelessness led to the delay. The CPS appealed the Master’s decision.
On appeal, Justice Devlin reiterated that police generally do not owe a duty of care to complainants or people impacted by the alleged crimes police investigate. Nevertheless, he found the police conduct in the Plaintiff’s case did not align squarely with any of the negligent investigation claims categorically rejected by the courts. Like the Master, he distinguished the Plaintiff’s case on the basis that the decision to investigate, the investigative steps themselves, the assessment as to whether reasonable and probable grounds to charge existed and the determination that a charge was in the public interest were all complete before the alleged negligence occurred. In other words, the CPS’ alleged negligence happened after the charge was sworn and after a warrant for the alleged perpetrator’s arrest was issued. Justice Devlin then considered whether it was plain and obvious the Plaintiff would be unable to establish at trial that the CPS owed her a duty of care in the circumstances. This required him to examine the broader nature of the relationship between a sexual assault complainant and the police. He framed the issue as to whether the CPS “ought reasonably to have foreseen that failing to execute the warrant would harm [the Plaintiff], as the complainant in the case they were neglecting” (para 45). Ultimately, Justice Devlin concluded the principles protecting police investigative discretion from private law obligations to complainants did not preclude finding a duty of care.
The Harm at Issue
Justice Devlin held for there to be a duty of care in the circumstances, the CPS must have been able to foresee harm to the Plaintiff’s mental health relating to the “wanton disregard” they displayed toward the allegations she made, not the consequential failure of the criminal justice process to reach her desired result on the merits. In this regard, he held “not getting justice” is not a compensable harm in law (paras 48-51). He agreed with the Master the harm the Plaintiff suffered could include any trauma resulting from the sexual assault examination, which was rendered unnecessary as a result of the CPS’s negligence.
Notably, Justice Devlin adopted the statement of Justice Moldaver in R v KJM, 2019 SCC, 55 where he summarized the psychological stakes for justice system participants as follows:
38. Police officers ought to know that delays in the criminal justice process cause psychological and emotional harm to victims of crime. Further, police officers are aware that excessive delays in executing an arrest warrant is often fatal for the prosecution of those offences. It should be within the reasonable contemplation of police officers that the resulting inability to participate in the judicial process as a result of the failure to execute an arrest warrant would cause psychological and emotional harm to victims of crime.
Notwithstanding these comments, Justice Devlin reiterated that “frustration, offense, grief, or any other form of general dissatisfaction with police investigative conduct is not actionable, and foresight of such unhappiness with their work does not vest the police with a duty of care” (para 56). In the result, he concluded that on the facts it was open to the Plaintiff to establish foreseeable harm arising from the CPS’ “inexplicably protracted failure to execute the warrant for [the alleged perpetrator’s] arrest” (para 59).
Proximity
For the proximity analysis, the Plaintiff focused on the fact that the CPS failed to take a mandatory, non-discretionary step after the investigation was complete, reasonable and probable grounds to believe a crime was committed had been determined, and a decision to charge in the public interest had been made. In other words, she alleged the CPS’ discretionary charging decision was transformed into a judicial command to arrest such that the court’s longstanding concern about fettering the investigative discretion of police is not at issue on the facts. Additionally, she submitted the evolving status of victims in the criminal justice system, exemplified by the emerging provision of specific legal rights for sexual assault complainants, warrants taking a fresh look at the bounds of private law duties owed by police.
Justice Devlin agreed with the Plaintiff on both points. He held by the time the CPS “dropped the ball” on the Plaintiff’s case their discretionary investigative and charging steps were completed (para 98). Therefore, the requirement for investigative objectivity had been served. To the extent discretion exists in relation to the execution of warrants, he held as follows:
[100] The police are afforded considerable operational latitude to decide when and how to execute warrants and what resources to devote in the pursuit of wanted individuals whose whereabouts is unknown. However, the idea that the police may indefinitely and unjustifiably avoid carrying out Court Orders – which is what warrants are – without attracting any liability for harm proximate to their failure to do so, is unappealing. For instance, this Court routinely directs the police to serve Emergency Protection Orders, and similar devices of urgent restraint, issued in favour of victims of domestic violence and others at immediate risk. I cannot accept that such Orders are incapable of giving rise to a duty of care between the police and the individuals the Court has directed them to assist in protecting (emphasis added).
In the result, Justice Devlin concluded “the crass obviousness of the police default, and the near-total absence of a conceivable explanation for that default brought [the Plaintiff’s] case much closer to a situation of intentional misfeasance than to a discretionary error in investigative judgement” because the CPS had defined and explicit legal obligations in the circumstances (para 102). On that basis, he held it was not plain and obvious the Plaintiff’s claim would fail for lack of sufficient proximity.
Policy Considerations
Despite the overarching principle that police need to be able to do their jobs independently without fear of being sued by unsatisfied victims of crime and other policy concerns relating to the duplication of litigation arising from failed investigations, Justice Devlin was not satisfied the proposed duty of care was bound to fail for policy reasons.
Conclusion
At least until there has been a determination of this case on the merits at trial, individuals affected by a stay or dismissal of criminal proceedings due to delay may be permitted to advance a claim in negligence against police if they feel the delay was caused by police inaction. Additionally, police who fail to execute the type of protective orders to which Justice Devlin referred may face liability in certain circumstances.
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