When Can Police Officers Be Negligent For Laying Charges?

In the interesting decision in Drury v. Cornish, 2020 ONSC 1173, Justice Barnes, writing for the Divisional Court, explored the applicable standard of care for a claim against police in negligent investigation.

The plaintiff, Philip Cornish, a criminal defence lawyer, commenced a claim against the OPP and two of its Officers for negligent investigation.

Mr. Cornish had been arrested and charged with criminal harassment, following a complaint by his estranged wife that she was being harassed by Mr. Cornish and feared for her safety as a result.

In investigating this complaint, the OPP Officers took a statement from the complainant, in which she stated, among other things, that Mr. Cornish had been communicating with her despite multiple requests from her lawyer that he stop, that Mr. Cornish had come to her workplace looking for her, had asked for her schedule when she was not there, and had become upset when it was not given to him. The complainant further stated that she feared for her safety as a result of Mr. Cornish's behaviour.

Based on the complainant's evidence, the investigating officers felt they had reasonable and probably grounds to arrest Mr. Cornish, and proceeded to do so, charging him with criminal harassment.

This resulted in a criminal trial, where following the completion of the Crown's case, the defence brought a motion for a directed verdict. The motion was granted and the case dismissed, on the basis that there was insufficient evidence to support the charge of criminal harassment.

Mr. Cornish subsequently commenced an action for negligent investigation, defamation, and malicious prosecution in small claims court.

Following a trial, the claims in defamation and malicious prosecution were dismissed, but the trial judge found in favour of Mr. Cornish with respect to the claim in negligent investigation.

In doing so, the trial judge determined that there were additional avenues of investigation the Officers should have first exhausted before laying charges against the plaintiff, and that their failure to do so was negligent.

On appeal to the Divisional Court, Justice Barnes noted that the standard of care in the tort of negligent investigation is that of a "reasonable police officer in similar circumstances".

Typically, expert evidence is required to establish the content of this standard of care. However, in this case, the parties agreed that the matters were sufficiently non-technical and within the knowledge and...