Date: Fri, 5 Oct 2007 10:06

From: David Cheifetz

Subject: Police liability

John,

My take, for what it's worth. If it's viewed as cynical, so be it.

Canada is litigious. People sue. It's simply not as bad, yet, as in the US because litigation isn't yet as remunerative for lawyers & clients. There's money to be made but it's not quite the pot of gold some people might think. It's an expensive process for the lawyers. People who are plaintiffs in these claims usually don't have any money. They're judgment proof as often as not but the lawyer still has to spend his or her time. The defence will be well-funded. (The majority recognizes these "controls" this when discussing the prospect of suits after dismissals of the charges: see para 64.)

Will the decision actually impair police investigations? You mean, will the individual police officer worry about the financial consequences of being sued civilly? I doubt it. Why should they? They're insured. Or, even if not, they'll be acting in the course of employment in almost every case I can imagine and be entitled to indemnity from their employer who has the state's deep pocket. Will it cost the municipalities and taxpayers anything? Only if the claims are in excess of limits or the conduct is so egregious that it attracts punitive (exemplary) damages. Let's assume that that's going to be a most unlikely situation. So, did that play a part in the majority's decision.

Let's see.

59 It should also be noted that many police officers (like other professionals) are indemnified from personal civil liability in the course of exercising their professional duties, reducing the prospect that their fear of civil liability will chill crime prevention.

61 The record provides no basis for concluding that there will be a flood of litigation against the police if a duty of care is recognized. ... The best that can be said from the record is that recognizing a duty of care owed by police officers to particular suspects led to a relatively small number of lawsuits, the cost of which are unknown, with effects on the police that have not been measured. This is not enough to negate the prima facie duty of care established at the first stage of the Anns test.  

Make your own decision.

Ultimately, this decision is going to cost the municipal insurers lots of money. But it isn't going to cost the taxpayers very much unless the insurers bail out or the insurers raise rates astronomically or limit the policy limits significantly. I don't see that happening. I'm sure the insurers' actuaries have already number-crunched the possibilities to rate the risk and found it tolerable. Will insurance rates go up in any relevant way? I don't know. Would that sort of evidence have made a difference to the majority?

Charron J, by the way - one of the dissenting judges - is an ex-Crown. Criminal law is her background. She is the only judge on the bench with that sort of practical background in criminal law.

But, as I said, I'm cynical. (Blame it on too many pucks in the head.)

David

-----Original Message-----
From: John Murphy
Sent: October 5, 2007 3:40 AM
Subject: police liability

First, thanks for that Ken for drawing out a very interesting passage. I hadn't bothered to read the case and would have missed it otherwise.

That said, I just wonder whether (non)litigious culture plays a part in the empirical findings.

I have no idea what the culture is in Canada. But in England there have been so many high profile police blunders - racism at the Met, etc - that I suspect (but, of course, don't know) that people in this country would be that much more likely to sue. And that being the case, it is presumably more likely that really opening up police liability here would indeed lead to a change in police practice (and possibly impair it).

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