Prior to this, suspects in Canada accused of crimes, outside of Quebec and Ontario, had little recourse against the police, even if they were detained or imprisoned due to insufficient evidence being gathered against them that could have resulted in their exoneration. Additionally, the decision stated that police did not have to display “malicious intent” during the investigation and false arrest, but a merely a negligence to their duty of care and their responsibility to perform investigations in a professional manner.
Writing about the decision, the Chief Justice, Beverley McLachlin, wrote: “The police are not immune from liability under the law of negligence and the tort of negligent investigation exists in Canada. Police officers owe a duty of care to suspects.” Yet some believe that this ruling may have the unintended consequence of hampering police investigations, or allowing criminals to go free for fear of not having enough evidence and therefore leaving themselves open to civil litigation. Dissenting judges noted that “A private duty of care owed by the police to suspects would necessarily conflict with an officer’s overarching public duty to investigate crime and apprehend offenders.”
Whether or not you believe that the ruling prevents police officers from doing their job, it is clear that unlawful arrest and incarceration can cause severe emotional, mental, and even physical distress. So just how careful must the police be in their investigation to ensure that no civilian is arrested without real cause? Could mistaken arrests or incarcerations be considered unfortunate, but necessary collateral damage in the pursuit of real criminals? The police are required to, first and foremost, protect the community, which establishes a clear duty of care. Given that every Canadian citizen has the right to not be unlawfully incarcerated, not taking enough time and effort to ensure that you are investigating, questioning, and ultimately arresting the right individual should be the bare minimum that police can do to prevent unlawful incarcerations.
How might this affect you? While we all assume that such a thing could never happen to us, unfortunately sometimes all it takes is being at the wrong place at the wrong time to get caught up in an investigation against illegal activities. It is in the police’s best interest to try and appear intimidating during an investigation, but you do have rights. If you have been arrested or brought in for questioning, seek legal counsel immediately. And if you believe that the police overstepped their bounds with you during an investigation of a crime for which you are not guilty, compensation for your suffering and trouble may be available to you. Apart from false imprisonment, you are protected against claims of racial profiling, illegal search and negligent investigation procedures – even excessive force.