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Jason George Hill, an Aboriginal man, was investigated, put on trial, and given a 20-month sentence for burglary even though he had never done the offense. The investigating officers made a number of mistakes, including a flawed picture lineup, dubious methods of interrogating witnesses, and disregarding exculpatory evidence. It is debatable whether Mr. Hill should be entitled to compensation for losses sustained as a result of careless inquiry. In the case of Hill v. Hamilton-Wentworth Regional Police Services Board, the Supreme Court upheld the Ontario Court of Appeal's ruling that the police have a responsibility of care to suspects, despite opposition from the lower court. (Fridman, 2002). The supreme court ruled the case, stating that the tort of negligent investigation should be recognized (Lunney & Oliphant, 2013). Most would see this case as a victory to citizens against unreasonable officers of the state. However, the decision is not as good as it looks. First, it is concerning that a dissenting judgement was issued despite the high rates of wrongful convictions due to lack of care among police practices. Also, despite the court acknowledging that the police owe a duty of care to the suspects, the analysis leaves little room for negligence to be proven (Yule, 2008). The court set a high standard in trying to prove that the police did not breach the standard of care. The ruling has seen Canadian justice system pull away from common law. The difficulty to prove that a standard of care is particularly of concern to the racialized and aboriginal communities who are often targeted unfairly and harmed by the criminal justice system (Chamberlain, 2011).
Mr. Hill was a suspect during the investigation of ten robberies that had taken place in Hamilton, Ontario. Given the eye witness accounts and other investigation revelations, the police concluded that all the robberies were committed by a single person. The police turned to Mr. Hill as the main suspect and even circulated his photos on the media (Fraser, Roach, Pillay & Canadian Civil Liberties Association, 2014). A photo lineup was also conducted in which Mr. Hill was the only Aboriginal person. The others were Caucasian foils. Mr. Hill was arrested on the 27th of January 1995 and charged with 10 counts of robbery based on sighting Mr. Hill next to the scene of crime, eye witness statements and surveillance photo (Fridman, 2002). However, the eye witness accounts were inconsistent as others described the robber as having facial hair while others did not. Others witnesses described the robber as being Hispanic while others claimed he was ‘North American Indian.’ Finally, the investigating officers settled for the ‘dark complexion’ as the robber’s description. Throughout the investigation, the police had exculpatory evidence but did not act on them. Before the arrest of Mr. Hill, Crime Stopper reported that the perpetrators were two Hispanic men (Fridman, 2002). When Mr. Hill was in custody, other similar robberies occurred. Police received a tip that it was ‘Frank’ who was responsible. All charges facing Mr. Hill were eventually dropped except one. The other charges proceeded and were largely based on questionable eye witness of two bank tellers. On March 1996, Mr. Hill was found guilty of robbery but appealed the decision. He was acquitted in 1999 after being imprisoned for 20 months (Fraser, Roach, Pillay & Canadian Civil Liberties Association, 2014).
Mr. Hill brought an action against the police for negligence and malicious prosecution among others. In trial, it was found out that there was no malicious prosecution as the proceedings were instituted based on reasonable grounds. Furthermore, it was also revealed that the police did not breach any standard of care since there was no methodology in the police investigations. In addition, Marshall J claimed that the photo lineup could not be considered as negligent because the 11 Caucasian foils had similarities to Mr. Hill. Marshall J found Mr. Hill’s incident quite unfortunate but pointed out that the law could not rewrite every wrong (Yule, 2008). Mr. Hill appealed the decision that the police officers conduct did not meet the threshold of negligent investigation and malicious prosecution (Fraser, Roach, Pillay & Canadian Civil Liberties Association, 2014). The Ontario Court of Appeal, through a five-judge bench was set up to rule on whether the tort of negligent police investigation would remain law as in Beckstead. Unanimously, the court of appeal ruled that the tort of negligent investigation should continue to exist.
The decision is being celebrated as a major landmark and victory in the law of Torts by the judicial system. However, it is concerning that there are still debates on whether the police should have full immunity and be free from any form of civil liability negligence. The majority statement bemoaned the decision that negligent policing was now perceived as a contributing factor to erroneous convictions (Fraser, Roach, Pillay & Canadian Civil Liberties Association, 2014). Given such a statement, it is concerning that such a dissenting opinion could be written on such a case. Poor police practice has proved to have serious consequences and hence it would be difficult for them to be granted immunity as it was suggested by the dissenting opinion. A thoughtful analysis regarding the application of the standard of care, and why a duty of care is owed by the police is however disheartening. The reasonableness of police conduct was not quite analyzed in its entirety. Events that led to the conviction of Mr. Hill were treated as occurrences of another era, yet 1995 is not such a long time. Decisively, the court was convinced that the interviewing of the two witnesses, the publication of a photo belonging to Mr. Hill and incomplete records from witness statements were not best practices by the police and also were not unreasonable. In addition, the majority found the photo line ups were not unreasonable according to the standards of 1995. It has still not been determined the basis through which such conclusions were reached.
The risk of wrongful convictions cannot be meaningfully addressed if the role that systematic racism plays in prosecuting and targeting racialized and aboriginal people is not recognized (Lopez, 2000). The supreme court’s majority opinion stated that a reasonable officer is expected to overcome line ups using the foils of a different race to the suspect in order to avoid the issue of unfairness towards suspects who might be minority group members and may perceive injustice to have occurred. These concerns were noted by the majority who agreed that such concerns were visible due to the increasing awareness of the persisting problems brought about by institutional bias against minorities in the justice system such as Mr. Hill who was an aboriginal person. In order to further their claim of the growing awareness, the Royal commission on Aboriginal Peoples’ report was cited. The Royal Commission on the prosecution of Donald Marshall in 1989 published a report that examined the impact of systematic racism on Aboriginals and blacks in the criminal justice system of Nova Scotia. This report was published in 1995 when the Hill’s case was also underway. The report shocked the whole of the justice system as it revealed the systematic and insidious nature of racism in the justice system. The other part of the report focused on the enactment of appropriate policies to counter the rising effect of systematic racism (Lopez, 2000). In addition, another report on the Aboriginal justice inquiry in Manitoba put great emphasis on the importance of consistent police practices in order to reduce the impact of systematic racism. The supreme court, before arriving at its decision did not discuss anything about systematic discrimination. Racism was only mentioned in the abstract when the majority opinion agreed that the tort of negligent investigation was one way of ending institutional racism (Lunney & Oliphant, 2013). Unfortunately, the role played by systematic racism in the investigation and how it negatively affected Mr. Hill’s case was not mentioned. However, at the core of the negligent investigation was systematic racism (Yule, 2008). It can be claimed that Mr. Hill was a suspect because he was an aboriginal. Despite several witness accounts describing the robber in other different ways other than that of Mr. Hill, the police were already convinced that the perpetrator was aboriginal who was Mr. Hill. It is not clear why the police had the mindset that it was an aboriginal who had committed the crime. However, they are not free from stereotypes that people of color or aboriginal people are more likely to commit crimes.
In majority of investigations conducted by the police, eye-witness identification is often perceived as unreliable due to the high risk of wrong identification that have been witnessed over the years. As noted by several experts in the justice system, cross racial identification has become a major source of wrong convictions. Furthermore, the issue of describing suspects based on race has been challenged by the Manitoba Aboriginal inquiry. Race does not make much sense when used to describe someone. Despite the majority belief that the police did not use ‘tunnel vision’ on Mr. Gill, it is even more puzzling why other exculpatory evidence were not explored (Haberfeld, Clarke & Sheehan, 2012). The photo lineup is another troubling analysis. According to the majority view, the photo line up had 11 white foils and one aboriginal which was not unreasonable despite failing to be ideal in 1995. Furthermore, the majority claimed that structural bias exists when a line up is racially skewed and only if it can be recognized that one person is non-Caucasian and that the suspects stands out. In the view of the majority, Mr. Hill did not stand out because the other people in the lineup had similar coloring and features. Such a reasoning is quite problematic for various reasons. First, it would not be prudent to entrust white police officers or the white judiciary to determine the similarity of suspects. Secondly, little attention was paid by the majority on the issue of injustice that arises from a line up that is racially skewed. Despite noting that a reasonable officer today is expected to avoid line ups through the use of foils of different race than the suspect by the majority, no standard for today’s officers were set. It left open the possibility that under certain circumstances, the practice can be accepted. However, this practice should not be condoned under any circumstances. This is because the perception of fairness is quite serious particularly where aboriginal people are involved. Furthermore, Canada’s supreme court has also noted in its other cases that bias has become widespread against the Aboriginal peoples, leading to systematic discrimination. The court should have acknowledged that the lineup was unacceptable not only by today’s standards but also those of 1995 (Lunney & Oliphant, 2013). The suspect’s description varied and were based on race. However, majority of the witnesses identified that he was not Caucasian. The detective in charge of the case released a report that the suspect was of ‘dark complexion’ yet he was in a line up with Caucasians.
The court of appeal and the trial court showed a discomfort in recognizing the presence of race and racism throughout the case. In fact, the trial judge was not even comfortable identifying the foils as Caucasian. Looking at the court’s analysis, it did not consider race and was decontextualized despite the issue of racism being a topic of discussion. The courts did not put into consideration that an Aboriginal man was imprisoned wrongfully as a result of the police carrying out shoddy investigations that was motivated by racial prejudice (Chamberlain, 2011). Instead of focusing on the injustice that had occurred, the supreme court tried to minimize the extent of the negligence by constantly talking about the circumstances that led to the wrongful incarceration of Mr. Hill. This was aimed at avoiding the issue of race that saw the investigating officers sanitized for their role in poor investigations. Reviewing the context of police practices in 1995, labelling the conduct of the police officers as reasonable would be troubling (Haberfeld, Clarke & Sheehan, 2012). First, it cannot be argued that the dangers of wrongful were not recognized then. Such practices by the police should be considered as inherently unreasonable. A reasonable police officer would never engage in racist gestures. The courts need to take a proactive role in articulating the level of care expected of police officers rather than deferring occurrences that have been identified as harmful to people of the minority race. Police officers, require discretion to perform their duties just as other actors in the justice system. However, the courts need to control their level of discretion in such a system that is tainted by systematic racism. According to the majority opinion, hunch, hearsay and suspicion might be an adequate basis to start an investigation as long as the police officer acts reasonably (Haberfeld, Clarke & Sheehan, 2012). How the courts will determine the reasonableness of suspicions and hunches in determine the standard of care still remains a mystery. Warnings have been issues against giving too much discretion to the police because consciously or unconsciously, it has often been exercised to the detriment of the racialized and Aboriginal communities.
On 4th October 2007, the supreme court of Canada made a landmark ruling when it recognized the tort of negligent investigation. The recognition was an important step in ensuring that police officers practice care and reasonableness in their investigations. However, the court failed to venture into new territory that has been ailing the justice system for decades. The standard of police conduct was set so low to ensure that are accountable for their actions during investigations (Haberfeld, Clarke & Sheehan, 2012). The court’s standard made it quite difficult for plaintiffs to prove their case against police officers. Most importantly, the court did not grab the opportunity to show how systematic racism against aboriginal people could be curbed through the tort of negligent investigation. Despite the recognition that the ruling would address issues of institutional bias, it also demonstrated that it would pose certain challenges to other plaintiffs who may be victims of police negligence (Chamberlain, 2011). Mr. Hill was among the first to be denied justice. If the courts are looking to find remedies for gaps left by the torts of malicious prosecution and false imprisonment, it will need to relax the threshold for the breach of standard of care in order to ensure a remedy for those who fall victims of poor investigations by the police (Lunney & Oliphant, 2013). If the police and the criminal justice system are to be trusted by the racialized and aboriginal communities, the police must account for their conduct. Once this is done, the public confidence in the law enforcement authorities and the justice system will be achieved.
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Better, S. J. (2008). Institutional racism: A primer on theory and strategies for social change. Lanham, Md: Rowman & Littlefield Publishers.
Chamberlain, E. (2011). Negligent Investigation: Faint Hope for the Wrongly Accused. Advoc. Q., 39, 153.
Fraser, M. B., Roach, K., Pillay, S., & Canadian Civil Liberties Association. (2014). Acting for freedom: Fifty years of civil liberties in Canada.
Haberfeld, M. R., Clarke, C. A., & Sheehan, D. (2012). Police organization and training: Innovations in research and practice. New York: Springer.
Lopez, I. F. H. (2000). Institutional racism: Judicial conduct and a new theory of racial discrimination. Yale Law Journal, 1717-1884.
Lunney, M., & Oliphant, K. (2013). Tort law: Text and materials.
Yule, J. M. (2008). Negligent investigation by police: can a duty of care be found using the existing negligence principles in Australia?. Journal of Australasian Law Teachers Association, 1, 379-389.
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Fridman, G. H. L. (2002). The law of torts in Canada. Toronto: Carswell.
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