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Police - Investigation. McCormack v. Evans
In McCormack v. Evans (Ont CA, 2025) the Ontario Court of Appeal dismissed a plaintiff's appeal, here brought against the dismissal of "a civil action against the respondents alleging malicious prosecution, negligent investigation and other civil wrongs".
Here the court considers the standards of care for police investigation and for the laying of charges:i. General Principles
[87] It is helpful to begin with a discussion of the standard of care imposed on investigators in relation to those that they investigate. In Hill (2007), at para. 73, the Supreme Court of Canada held that the standard of care “is the overarching standard of a reasonable police officer in similar circumstances.” Writing for the majority of the court, McLachlin C.J. held that the standard is to exercise discretion in a manner that falls within the range of reasonable decisions available at the time the decision was made: Hill (2007), at para. 73; see also Upchurch v. Oshawa (City), 2014 ONCA 425, 27 M.P.L.R. (5th) 179, at para. 21. The standard is not one of perfection, as she explained, at para. 73:The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results. Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care. [Citations omitted.] [88] In laying charges, “the standard [of care] is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty; since the law requires such grounds, a police officer acting reasonably in the circumstances would insist on them”: Hill (2007), at para. 68.
[89] An investigator’s personal belief that there are reasonable and probable grounds is not sufficient: a reasonable person standing in the shoes of the investigator must believe there are reasonable and probable grounds that the person charged committed the offence: Payne v. Mak, 2018 ONCA 622, 78 M.P.L.R. (5th) 179, at para. 31, citing R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 250.
[90] In determining whether there are reasonable and probable grounds to lay charges, the investigator need not “evaluate evidence to a legal standard or make legal judgments” as “[t]hat is the task of prosecutors, defence lawyers and judges”: 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 51; see Hill (2007), at para. 50.
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