Thursday, February 17, 2011

Caught Between a Tort and a Hard Place - A Comment on Wellington v. Ontario

The Tort Action and the Law

In Wellington v. Ontario (2010), the Ontario Divisional Court had the occasion to consider whether the family of a person killed by police could sue the Special Investigations Unit (SIU) for damages for alleged negligence in investigating the officers involved in the killing.

Duane Christian, a 15 year old black Toronto youth, was fatally shot by a police officer in the early morning hours of June 20th, 2006.  The SIU investigated the circumstances surrounding Duane’s death and concluded that the officers acted lawfully.  Duane’s estate, his mother and his sister launched a civil suit against the SIU and then Deputy Director James Ramsey alleging negligent investigation of the circumstances surrounding Duane’s death. They argued that this deprived them of the opportunity for a trier of fact to assess criminal liability, lessened their chances of recovering civil damages, and has caused them added mental and emotional distress.

The defendants’ brought a motion pursuant to Rule 21 of the Rules of Civil Procedure to strike out the statement of claim on the ground that the pleadings do not disclose a cause of action.  The motion’s judge dismissed this motion on the grounds that it was not ‘plain and obvious’ (the test for striking out a pleading pursuant to Rule 21) that the plaintiffs’ claims could not succeed which meant that the parties would have to argue the matter on the basis of a full record.  This ruling was then appealed to the Divisional Court which upheld the ruling in a 2-1 decision.

The first step in proving negligence is for the plaintiffs to establish that the defendants owed them a duty of care.  The defendants attempted to strike out this claim because the existing jurisprudence has established that police officers do not owe a duty of care to victims or their families, or in the alternative, that the application of the Anns test (Anns v. Merton London Borough Council [1978] A.C. 728 (H.L.), affirmed in Cooper v. Hobart, [2001] 3 S.C.R. 537) would inevitably lead to the conclusion that the SIU does not owe a duty of care to victims of police brutality or their families.  The majority and the dissent were in agreement that the existing jurisprudence does not preclude the existence of such a duty of care, but they parted ways on the issue of whether it was appropriate to conduct an Anns analysis in the context of a Rule 21 motion.  The majority was in agreement with the motions judge that the Anns test should only be applied in the context of a full record where the Court could benefit from the submissions of the parties.  The dissenting judge felt that it was entirely appropriate to apply the Anns test in the context of a Rule 21 motion and, after doing so, concluded that neither the province nor the Deputy Director owe a duty of care to victims of police brutality or their families.

If it is determined at trial the SIU owes the victims and their families a duty of care, the precise content and scope of that duty is unclear.  Since it has already been established that police officers owe suspects a duty of care (Hill v. Hamilton-Wentworth Regional Police Services (2007 SCC 41)), by analogy SIU investigators owe suspect officers a duty of care.  Any new duty being recognized as being owed to victims and their families could not be in conflict with the duty owed to the suspect officer.  How can this balance be struck?  At which point does the duty of care owed to the victims and their families result in an SIU investigation that may breach the duty of care owed to suspect officers?

Similarly, if a duty of care is created, how will the standard of care be ascertained? Is a mere omission to ask a relevant question truly negligent?  What about the complete failure to interview witnesses?  Where will the line be drawn and how will it impact routine police investigations of civilians suspected of committing criminal offences?  After all, not every investigation leads to charges being laid, and not every charge results in a conviction.  At which point is a victim of crime able to come to court and allege that an officer was negligent in their investigation of the alleged crime?

I have avoided discussing the factual underpinnings of the civil claim as the law of negligence is meant to develop incrementally, recognizing novel duties of care only by analogy or from first principles (Anns).  Once a duty of care is recognized by the Courts, the consequences of that recognition have repercussions beyond the parties to the action.  In this case, one of the potential consequences would be that all police agencies owe all victims of crime a duty of care in the manner they carry out their criminal investigations. 

While the majority judgment may seem like a victory for Duane’s family, the dissenting judgment may be foreshadowing the eventual outcome once the issues are considered in the context of a full record.  The topic of whether a prima facie duty of care between the SIU and victims of police brutality and their families should be recognized certainly makes for interesting academic debate and would be a ripe topic for a law school torts moot which could highlight competing arguments that can be advanced in the application of the Anns test.  However, as interesting as this legal debate would be, it would overshadow the tragic factual underpinnings of the case which highlight some of the obstacles to thorough, competent, and reliable SIU investigations.  The factual underpinnings of the case also help us understand why Duane Christian’s family is so upset about the outcome of the SIU investigation.

The Facts       

As future lawyers, we are taught to be sensitive to the competing narratives at play in any given case.  The Wellington decision was working off a general narrative that police officers had stopped the vehicle that Duane was driving and while both officers were outside of their vehicle with their guns drawn, Duane attempted to drive away.  One of the officers was directly in front of the van that Duane was driving, and the other officer fired six shots inside the van which resulted in Duane’s death.
A closer scrutiny of the motion judge’s decision in the Wellington case reveals the narrative advanced by Duane’s family.  They alleged that the negligent conduct on behalf of SIU investigators involved the following:

·         the SIU did not interview PC Darnley (the officer who fired the lethal shots);

·         the SIU failed to ask PC Edey (the officer who stood in front of the van as it attempted to drive off) certain important questions;

·         the SIU’s language in handbills and press releases was intentionally prejudicial in favour of the officers;

·         the SIU allowed the officers to keep their firearms until approximately seven hours after Duane was shot and failed to take measures to prevent the possibility that the weapon was tampered with;

·         the SIU failed to thoroughly investigate the lawfulness of Duane’s detention;

·         the SIU closed the investigation prior to receiving the pathologist’s report;

·         the SIU failed to take into account that PC Edey’s evidence was contrary to the forensic evidence;

·         the investigation was hasty and superficial; and,

·         the SIU departed from standard investigative procedures.

The Toronto Observer’s view of the facts provides yet another lens through which to view the events, one that prefers to blame the victim and victimize the perpetrator.  In fairness to the newspaper, the article is filed under ‘opinion’, and the newspaper is produced and edited by Centennial College journalism students. I’m inclined to think that this particular ‘opinion’ comes from someone who may have a vested interesting in advancing this particular narrative.  I feel like any paraphrasing of this position would do it injustice, so some direct quotes are in order:

It is possible in the wave of outrage that seems unavoidably linked to a boy being killed by police we have missed the most important issue at hand here. Why was Duane Christian out in a stolen van at 5 a.m. on a Sunday morning with a stash of cocaine and marijuana in the seat next to him?
I could not ascertain where the information about the drugs came from.  It may be a product of self-serving police leaks to the media.  Regardless, Duane was never charged with any offences (because he’s dead). The kind words from the Observer don’t end there:

But the young man’s family are not the only living victims of Christian’s death. Const. Darnley and his family would have never heard the word “killer” attached to his name.  We must look beyond the badge to see the human being — he is a victim in this too.  He has to move on knowing that Christian’s actions forced him to end the boy’s life.  It is unfortunate that Christian was not mature enough to realize the impact of his actions, but he could have been taught.  He could have been steered by his family and community away from crime, and away from what ultimately cost him his life.

The Toronto Police Service owes the Toronto Observer a thank you letter for their summary of the events.  But this type of blame-the-victim approach is not confined to student editors of the Toronto Observer.  It is a view shared by many segments of society and may help explain why convicting a police officer in a jury trial is next to impossible. 

Ontario Ombudsman Andre Marin’s 2008 report on the SIU entitled “Oversight Unseen” adds additional background factors regarding the investigation of Duane’s death which are not disclosed in the Divisional Court’s judgment, the plaintiff’s pleadings, or the Toronto Observer’s ‘opinion’.  It is in the context of these facts that the alleged failures of the SIU investigation should be analyzed.  These additional facts reveal the following:

  • Even though the incident occurred at 4:55am, the SIU wasn’t notified until 6:10am, even though there should have been absolutely no question about their mandate being invoked in this type of case;

  • Shortly after, seven TPS officers attended the scene and 14 other officers canvassed the area for potential witnesses;

  • The lead SIU investigator didn’t arrive on the scene until 3 hours after the incident due to the SIU policy of how a team is assembled which involves investigators driving in from great distances;

  • The canvass of nearby apartment buildings for potential witnesses didn’t start until 5 hours after the events, and continued for days;

  • During this whole time, and in fact not until sometime later was Duane’s mother notified of Duane’s death.  She was one of the potential witnesses located by TPS during their initial response to the scene and was taken to the police station as a ‘potential witness’ even though she expressed fears it was her son who was lying dead on the pavement;

  • The key witness officer wasn’t interviewed until six days after the events, and the other six witness officers who were first to arrive on the scene weren’t interviewed for 17-24 days; and,

  • The suspect officer was never interviewed before the SIU concluded its investigation.
Questions to Ponder

Given this factual matrix, what do you think about the conduct of the SIU? Do you think recognizing this new duty of care would cause more problems than it would solve given that less than 3 percent of SIU investigations result in officers being charged with criminal offences? In conducting their investigation, do you think the SIU should have a responsibility to consider any potential civil claim by the victim’s family against the officers involved?

What do you think about the obstacles that stand in the way of timely and thorough SIU investigations?  Do you agree with the Ombudsman’s position that the SIU should become more aggressive and use the statutory powers available to them?  Given the statistics outlined on the SIU website about the size of their staff and their budget, do you think it’s feasible to have them conduct interviews with witness officers within 24 hours?  While not cooperating with an SIU investigation is a disciplinary offence, the SIU does not have the power to lay that disciplinary charge.  Do you think they should be given that power and would that encourage more timely cooperation with SIU investigations by witness officers? Was the conduct of the SIU in Duane Christian’s case negligent?

Posted by Vlatko Karadzic (Windsor Law III)

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