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 experience of the trial judge, such that expert evidence was not required.
Justice Barnes further noted that the standard of care of an investigating police officer is not a standard of perfection, and is not to be assessed in hindsight, but rather in the context of the prevailing circumstances at the time of the impugned conduct.
When the issue is whether the involved police officers were negligent in laying charges, as it was in this case, the standard of care is informed by whether the officer had reasonable and probable grounds to believe that the suspect has committed an offence.
In R. v. Storrey,  1 S.C.R. 241, the Supreme Court of Canada set out a two-part test for whether a police officer has reasonable and probable grounds to support an arrest: 1) whether the officer had a subjective belief that the suspect committed the offence; and 2) whether a reasonable person in the position of the officer could also come to this conclusion.
Justice Barnes held that the trial judge in this case had not applied this test correctly. He noted that an investigating police officer is not required to exhaust all possible avenues of investigation before determining whether they have reasonable and probable grounds for arrest.
The test is simply whether, on the basis of the information in their possession at the time the decision to lay charges was made, the Investigating Officers both had a subjective belief that the crime had been committed, and that a reasonable person in the position of the Officers could have come to the same conclusion.
Justice Barnes concluded that in this case, the standard of care was met by the Investigating Officers. The Investigating Officers had sufficient evidence before them to support a reasonable belief that the elements of the offence of criminal harassment were met by the plaintiff’s conduct.
In conclusion, police officers must have reasonable and probable grounds for laying charges. However, the officers are not required to exhaust every avenue of investigation before doing so. The officers are also not required to determine whether the charges are likely to result in a conviction. That is for the Court to determine.
As long as the investigating officer develops a subjective belief that the suspect has committed a crime, and that subjective belief is objectively reasonable from the evidence available to the officer, the officer will have met the standard of care.
However, if the officer’s subjective belief that the suspect committed a crime is questionable, or not objectively reasonable in the circumstances, it may be a breach of the standard of care for the officer to lay charges.