On April 16, 2018, the Court of Appeal for Ontario released its decision in Connelly v Toronto (Police Services Board), 2018 ONCA 368 affirming that police do not owe a private law duty of care to victims of crime and their families in relation to the investigation of alleged crimes.
This case arises out of the tragic death of the plaintiffs’ son on December 9, 2001 after he fell from a ten-storey apartment building. The cause of death was the subject of considerable dispute between the police and the plaintiffs. Following an investigation, the police concluded that the death was a suicide and that the victim had jumped from the roof of the building. The plaintiffs strongly disagreed and believed that their son had been murdered — they suspected he had either been dropped or pushed off of the building. They believed that the police determination of suicide was the result of a poorly conducted investigation, and cited a number of alleged deficiencies in the investigation that should have resulted in a finding of “foul play” rather than suicide.
Ultimately, the plaintiffs brought a claim against the Toronto Police Services Board (“TPSB”), alleging negligent investigation and seeking a declaration that the police should re-investigate their son’s death as a homicide. The TPSB brought a motion to strike the claim under Rule 21 of the Rules of Civil Procedure on the basis that no duty of care was owed by police to victims of crime and their families and that the plaintiffs’ claim disclosed no reasonable cause of action or was statute‑barred.
The plaintiffs argued that the police owed a duty to them, as family members of a victim of crime, to conduct “a reasonably diligent investigation of [their son’s] death and to properly classify the death as a homicide or undetermined.” The motion judge disagreed, holding that the Court of Appeal had already determined in Norris v Gatien and Wellington v Ontario that no duty of care existed between police and the victims of crime and their families. The motion judge found that it was plain and obvious that the TPSB did not owe a duty of care to the plaintiffs and struck the claim in its entirety.
In reaching this conclusion, the motion judge reflected upon the tension between the wishes of victims and their families, and the duties owed by the police while conducting an investigation:
An individual’s desire for a certain form of investigation or a certain outcome is merely that: a desire. The police cannot be ordered, no matter what their alleged deficiencies may be, to conduct an investigation or to conduct it in a certain manner or to reach a desired result. The police’s duty is to the public as a whole. If the police were to be required to follow the directions of every victim or the victim’s family members, that would conflict with their duty to the public. Their task would become impossible. The police should not be faced with the prospect of a lawsuit for every decision made or every step taken or not taken in their investigation. It would create chaos and paralysis within the system as the police would be faced with litigation by every disgruntled victim or family member over not only their investigation itself, but the conclusions reached by them. The number of potential claims would be limitless.
Court of Appeal Decision
On appeal, the plaintiffs conceded that the Court of Appeal, sitting as a panel of three judges, could not reconsider the Court’s decision in Wellington v Ontario. Instead, the plaintiffs argued that the circumstances of their case could be distinguished from Wellington.
First, the plaintiffs argued that in Wellington, the Court had noted (in obiter) that “refusing to recognize the existence of a private law duty of care in relation to police investigations does not leave the families of victims or these respondents without appropriate and viable legal recourse.” Examples of such remedies included standing in coroner’s inquests, providing victim impact statements, and suing the perpetrators of crime. The plaintiffs argued that they did not have the rights to these remedies identified in Wellington.
Secondly, the plaintiffs argued that Wellington was also distinguishable on the basis that the plaintiffs had assisted the police in the conduct of their investigation.
The Court of Appeal disagreed and held that the circumstances in the present case could not be distinguished from Wellington. The comments made regarding alternative remedies in Wellington were made in obiter, and the suggestion that the parents had assisted the police in their investigation did not create any special relationship with the police that would give rise to a duty of care.
Ultimately, the Court of Appeal upheld the decision of the motion judge and dismissed the appeal. In doing so, the Court emphasized that the state of the law remains the same:
Despite the appellants’ attempts to characterize their claim as novel, their claim of negligence against the police is not. The law is clear; the police do not owe them a duty of care as the family members of a victim of a potential crime. As the motion judge correctly concluded, it is a category that has already been considered and rejected.