Police May Owe A Private Duty Of Care To Execute Warrants And Other Court Orders Expeditiously

• Published date: 20 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Professional Negligence, Crime
• Law Firm: Alexander Holburn Beaudin + Lang LLP
• Author: Mr David McKnight and Naomi Krueger

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:

1. 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;
2. 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
3. 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...