Negligent Investigation: A New Remedy for the Wrongly Accused: Hill v. Hamilton-Wentworth Regional Police Services Board

Abstract

In Hill v. Hamilton-Wentworth Regional Police Services Board, the Supreme Court of Canada affirmed that the tort of "negligent investigation" exists in Canada. Chief Justice McLachlin, for the majority, noted that negligent police conduct is "a significant contributing factor to wrongful convictions," and argued that a negligence action was necessary to round out the available remedies for the wrongly accused (previously limited to malicious prosecution, false imprisonment, and misfeasance in a public office). Given the media and public support offered to the wrongly convicted in recent years, the decision in Hill will be generally welcomed. Few would oppose the expansion of compensation for those who have suffered a miscarriage of justice. However, the deferential standard adopted by the Court leaves room for doubt as to the efficacy of the new tort as a remedy for the wrongfully accused. Although the majority paid lip service to the cause of justice for the wrongly convicted, it is not clear that Hill will provoke a noticeable change in police practices or increase the probability of recovery for plaintiffs. Thus, while it is a step forward in the pursuit of police accountability, it is not the magic solution that society seeks. If anything, it points to the inadequacy of tort law as a means of addressing wrongs within the justice system.