PART I – STATEMENT OF FACTS
1. Aboriginal Legal
Services of Toronto Inc. ("ALST") intervenes pursuant to an order of the Honourable Justice Rothstein.
2. ALST
relies on the facts as set out in the Appellant’s factum and reply factum.
PART II – POSITIONS ON THE QUESTIONS IN ISSUE
3. ALST submits that:
Canadian Charter of Rights and Freedoms, s. 15, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, C. 11 (hereinafter “Charter”).
PART III – ARGUMENT
(A) There Is a Duty of Care
4. The law in Canada is well settled that in order to establish a duty of care in a tort action for negligence a plaintiff must show that: 1) the harm that occurred was a reasonably foreseeable consequence of the defendant’s actions; and 2) that there are no reasons, notwithstanding the proximity of parties established under the first part of the test, to not recognize such liability. Questions of public policy arise in both parts of the analysis.
Anns v. Merton
Cooper v.
Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263 at para. 46-52.
5. ALST adopts the findings of the Ontario Court of Appeal in paragraphs 48 and 49 that harm to a suspect is a foreseeable consequence of negligent investigation and that there is sufficient proximity between the parties.
Hill v.
6. Since 1985, this Honourable Court, when conducting analyses of legislation and the common law, has done so through the principled exercise of applying Charter values. Using the lens of equality as set out in s. 15(1) allows for the consideration of the disproportionate impact of legislation or government action on a disadvantaged group, even when the law or action in question is neutral on its face as to its application.
Charter, at s. 15(1);
Cloutier v. Langlois
[1990] 1 SC.R. 158 at para. 56;
R. v. Salituro, [1991] 3 S.C.R.
654 at para. 49;
Hill v. Scientology of Toronto,
[1995] 2 S.C.R. 1130 at para. 91-92;
Jane Doe v. Board of Commissioners of
Police for the
7. While the over-representation of Aboriginal people in custodial facilities is a phenomenon that began following World War II, the vulnerability of Aboriginal people to negligent investigation has a much longer history. This history makes Aboriginal people particularly vulnerable to negligent investigation.
Public
Inquiry Into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of
Manitoba, The Justice System and
Aboriginal People, vol 1. (Winnipeg: Queen’s Printer. 1991) at 101
(hereinafter “Aboriginal Justice Inquiry”);
Cariboo-Chilcotin
Justice Inquiry, Report on the
Cariboo-Chilcotin Justice Inquiry (Canadian Cataloguing in Publication
Data, 1993), at 8, 26, 30 (hereinafter “Cariboo-Chilcotin”).
8. Negligent investigation was one of the major causes behind the wrongful convictions of both Wilson Nepoose and Donald Marshall Jr. The fact that these individuals were both Aboriginal is a crucial factor in understanding why they were wrongfully arrested and then convicted. As The Commission of Inquiry into the Wrongful Conviction on the Donald Marshall Jr., Prosecution found:
Donald Marshall, Jr.’s status as
a Native contributed to the miscarriage of justice that has plagued him since
1971. We believe that certain persons within the system would have been more
rigorous in their duties, more careful, or more conscious of fairness if
Royal Commission on the Donald Marshall, Jr.
Prosecution, Commissioners’ Report, Findings and Recommendations vol. 1:
(Halifax: Canadian Cataloguing in Publication Data, 1989), at 162 (“hereinafter
“Donald Marshall Jr.”; R. v
Nepoose, [1992] A.J. No. 220, 125 A.R. 28 at para. 13, 22, 27, 30.
9. Courts
routinely take judicial notice of the reality of Aboriginal over-representation
in the criminal justice system and studies have also shown that Aboriginal
people are over-represented as victims of crime. Aboriginal people are three times more likely
to be victims of violent crime than non-Aboriginal people. In 2004/05 Aboriginal people made up 22% of
all sentenced admissions to custody in
R. v. Gladue, [1999] 1 S.C.R. 688 at para. 58-61, 83 (hereinafter
“Gladue”);
Statistics
Statistics
10. This Honourable Court has examined the realities that Aboriginal people face when involved with the criminal justice system in R v. Williams, R. v. Golden and R. v. Gladue.
R. v. Williams, [1998] 1 S.C.R. 1128 at para. 58 (hereinafter “Williams”);
R. v. Golden, [2001] 3 S.C.R. 679 at para. 83 , 89, 95, 99,
102-104 (hereinafter “Golden”).
11. In R v. Williams, the Court addressed stereotypes and prejudices non-Aboriginal people have of Aboriginal people. These stereotypes and prejudices portray Aboriginal people as drunks and prone to violence and criminality. Such stereotypes are so powerful and pervasive that the Court recognized that they could sway the opinions of jurors even in the face of direct admonitions from a trial judge to put such prejudices to one side. In light of these stereotypes, this Court changed the common law regarding challenges for cause of jurors.
Williams, at para. 58.
12. In R v. Golden, the Court recognized the disproportionate impact that police conduct has on Aboriginal people. The Court also recognized that Charter remedies and other post-facto arrest proceedings are of limited utility to victims of police misconduct, overzealousness and otherwise improper behaviour. In light of these circumstances, this Court changed the common law regarding strip searches.
Golden, at para. 83 ,
89, 99.
13. In R v. Gladue, the Court delivered its most comprehensive analysis of systemic biases in the criminal justice system and their deleterious impact on Aboriginal people. While Gladue focused primarily on the sentencing provisions of the Criminal Code, the Court spoke more broadly about the experience of Aboriginal people with the criminal justice system.
Gladue, at para. 62-64.
14. Given the findings of the many studies on Aboriginal people and the criminal justice system, as well as the dicta of this Honourable Court, ALST submits a number of conclusions can be drawn about the way the criminal justice system deals with Aboriginal people:
· Those involved in administering the criminal justice system harbour stereotypes and prejudices about Aboriginal people, not unlike the general population;
· There is no reason to believe that police officers are immune to these prejudices and stereotypes;
· There is no reason to believe that witnesses are immune to these prejudices and stereotypes;
· Assumptions that Aboriginal people are prone to criminality lead to a greater possibility of negligence in the investigation of crimes allegedly committed by Aboriginal people;
· Assumptions that Aboriginal people are prone to criminality lead to less concern as to whether or not the individual actually committed the crime; and
· Prejudices and stereotypes about Aboriginal people result in Aboriginal victims of crime being seen as less credible and less worthy of police services.
Golden, at para. 83, 89, 99;
Williams, at para. 58;
Gladue, at para. 61-64;
Donald Marshall Jr. at 162;
Royal
Commission on Aboriginal Peoples, Bridging
the Cultural Divide: A Report on Aboriginal People and Criminal Justice in
Canada (Ottawa: Minister of Supply and Services, 1996) at 33-39, 309 (hereinafter
“RCAP”;
Aboriginal Justice Inquiry, at 86, 107-109, 249, 378-379;
Cariboo-Chilcotin, at 11.
15. This social context strongly emphasizes the need to recognize a tort of negligent investigation. The legitimate concerns that Aboriginal people have in relation to the operation of the justice system have largely been ignored. To deny the recognition of the tort of negligent investigation on the policy ground that it will expose police to potential liability would be a continuation of this disregard. It is this systemic neglect of the realities of Aboriginal people, both in the justice system and more widely in Canadian society that has allowed Aboriginal over-representation to continue to rise. ALST respectfully submits that to once again deny the legitimate concerns of Aboriginal people in the operation of the criminal justice system would require this Honourable Court to repudiate its decision in Gladue.
16. In addition to resolving a specific dispute between two parties, tort law performs an important remedial function in society. Tort law not only allows for an injured party to be compensated for harm caused by another, it can also alter behaviour. The desire to avoid monetary penalties for negligence has led organizations to change the way they function. Thus, tort law is not merely retrospective, in that it awards damages to persons for harms that have been caused, it is also preventative, encouraging people to change their behaviour in order to avoid damage awards.
Jane Doe
City Auditor, “Review of the Investigation of Sexual
Assaults
Audit Services (October 1999) online: City of
17. Judicial inquiries regarding Aboriginal people in the criminal justice system, whether called to investigate specific cases or broader systemic issues, have generated thousands of recommendations. What they have not generated is action. In 1995, the Royal Commission on Aboriginal Peoples found:
During its research phase, the
RCAP: Bridging the Cultural Divide, at 284-285.
18. ALST submits that there are no policy reasons that can outweigh the need for the recognition of the tort of negligent investigation. Furthermore, as the Court of Appeal noted, there is no alternate remedy for the loss suffered by reason of negligent investigation.
Hill v. Hamilton Wentworth Regional
Police Services Board, at para. 68;
Golden, at para. 89.
(B) The Applicable Standard of Care is the Reasonable Police Officer
19. The law is settled that the standard of care to be applied in a negligence action is that of the “reasonable person.” It is also recognized however, that the determination of what a “reasonable person” would do in particular circumstances is dependent on a number of factors and thus “the factual standard changes from time to time and from place to place.”
Arland
v. Taylor, [1955] 3 D.L.R. 358 (Ont.
20. In
the context of the tort of negligent investigation, the reasonable person is a
police officer. This fact gives rise to
particular considerations. Police
officers are agents of the state and their actions are subject to Charter scrutiny. The provisions of the Charter that govern the behaviour of police include the legal
rights contained in ss. 7 – 14, and the equality provisions of s.15. A reasonable police officer will be an
officer whose behaviour comports with the provisions of the Charter.
Golden, at para. 72;
Commission
of the Inquiry regarding Thomas Sophonow, “The Inquiry regarding Thomas
Sophonow, Manitoba Justice” online: <http://www.gov.mb.ca/justice/publications/sophonow/intro/therole.html>.
Charter, at ss. 7-15.
21. The standard expected of a police officer in this context is no different from that of the reasonable person as envisioned by this Honourable Court in R. v. S. (R.D.):
The reasonable person…is an informed and
right-minded member of the community, a community which, in
Racism…is a part of our community’s
psyche. A significant segment of our community holds overtly racist views. A
much larger segment subconsciously operates on the basis of negative racial
stereotypes. Furthermore, our institutions, including the criminal justice
system, reflect and perpetuate those negative stereotypes.
R. v. S. (R.D.) [1997] 3 S.C.R. 484 at para. 46 (emphasis not in original).
22. A reasonable police officer is one who is aware of the decisions of this Court in cases such as Williams and Gladue and is alert to the possibility that both overt and systemic racism can lead people to the assumption that an Aboriginal person is guilty of a crime or that an Aboriginal victim is not credible.
Cariboo-Chilcotin, at 11;
Donald Marshall Jr. at 162;
Aboriginal Justice Inquiry, at 86, 107-109, 249, 378-379.
23. ALST respectfully submits that the manner in which this Honourable Court addressed systemic and direct discrimination towards Aboriginal people in the context of developing the common law in jury selection and strip searches should also be adopted in establishing the standard of care in the context of the tort of negligent investigation.
Williams, at para. 41-43, 49-50;
Golden, at para. 99.
24. ALST further submits that this Court’s approach to s. 718.2(e) of the Criminal Code in R. v. Gladue is also instructive. As this Court noted in Gladue, s. 718.2(e) was designed to respond to the unique direct and systemic discrimination faced by Aboriginal people in the criminal justice system and Canadian society in general.
Gladue, at
para. 33, 64.
25. Gladue requires sentencing judges to pause before sentencing an Aboriginal offender. The reason for this pause is that admonitions to judges to look for alternatives to sentences for all offenders, on its own, leads to judges missing the impact of systemic discrimination on Aboriginal offenders and thus perpetrates further incidences of systemic discrimination. Treating Aboriginal offenders similar to other offenders ignores the reality of their situation and makes it impossible to address the over-representation of Aboriginal people in the criminal justice system – something that this Court identified as “a crisis in the Canadian justice system.”
Gladue, at
para. 64-65.
26. The reasoning of this Honourable Court in Gladue extends beyond sentencing matters and includes bail, parole, and review board hearings for individuals found to be not criminally responsible. Mr. Justice Archibald of the Ontario Superior Court found that:
…clearly the principles of Gladue are overriding principles in the justice system from the time a person comes into the justice system to sentence.
R v. Bain, [2004] O.J. No. 6147 at para. 12;
R. v. Sim, 78 O.R. (3d) 183 at para. 16;
National Parole Board,
Performance Measurement Division, Performance
Monitoring Report 2002-2003 online: <http://www.npb-cnlc.gc.ca/reports/pdf/pmr2002-2003_e>
at 188.
27. ALST submits that the principles
underlying Gladue apply in all cases
where the liberty of an Aboriginal person is at risk, including decisions of
police officers to arrest Aboriginal people.
28. In light of these findings, it is appropriate to expect that a reasonable police officer investigating an Aboriginal suspect would consider the impact of systemic and direct discrimination faced by Aboriginal people that makes them more likely to be the victims of negligent investigation.
29. Such a standard of care requires an investigating officer to pause and take a second look at the evidence that they are relying on to conclude that there are reasonable grounds that an Aboriginal person committed an offence. For example a reasonable police officer would examine the circumstances under which statements and identification made by witnesses were gathered. The reasonable police officer would also reflect on whether or not his or her unconscious biases led to the determination that the Aboriginal person should be arrested.
(C) Application of the Standard of Care to the Case at Bar
30. ALST submits that a reasonable police officer meeting the standard of care would have acted differently in the case at bar. In particular, the photo line-up would have been conducted differently and the charges against Mr. Hill would have been reinvestigated following the arrest of Mr. Sotomayer.
31. Six
of the witnesses to the robberies described the robber as an “Indian” or words
to that effect. Those witnesses who did
not describe the suspect as “Indian” often described him as “Hispanic.” Indeed the initial press release from the
Factum of the Appellant, at para. 15, see Exhibit 67, v. 8, t. 65, pp. 1186,
1195, 1198, 1199-1202, 1213-4, 1232, 1234-40, 1256-7;
Factum of the Appellant, at para. 12, see Exhibit 13, Record, v.5, t. 29,
p.867.
32. In constructing the photo line-up, the only Aboriginal person included was Mr. Hill, all other individuals were Caucasian. In defence of the line-up it is suggested that the foils all looked similar to Mr. Hill. This argument misses the fundamental problem with the line-up.
Factum of the Appellant, at para. 15, see Exhibit 17, Record, v. 5 t. 31.
884; Exhibit 18, Record, v. 5, t. 32, pp. 885-96
33. The problem with the photo line-up is proven by the response of witnesses who viewed it. All the witnesses who made a positive identification either wrongly identified Mr. Hill as the robber or said that he was the most similar to the robber.
34. The frailties of eyewitness testimony are well-known and have been the subject of comment by this Honourable Court. It is impossible to know why witnesses misidentified Mr. Hill as the robber. Certainly one plausible explanation is that Mr. Hill was the only Aboriginal person in the photo line-up. As the dissent in the Court of Appeal states:
A photo line-up where the target suspect is the only Aboriginal person among a group of Caucasians, even where the people can be viewed generally as similar in appearance, perpetuates the appearance of unfairness.
Hill v. Hamilton Wentworth Regional
Police Services Board, at para. 155;
R v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R.
445 at para. 46, 52.
35. ALST submits that with only one Aboriginal person in the line-up, the chances of Mr. Hill being selected were substantially increased. Police officers in this case should have considered the fairness of the photo line-up in light of the propensity of people to view Aboriginal persons as criminals. Knowing that Mr. Hill was the primary suspect and was an Aboriginal person, it was incumbent on the police to ensure that there were other Aboriginal people in the line-up. ALST further submits that the absence of any Hispanic foils removed all fairness from the line-up.
36. Given that the police theory in this case was that the same robber committed all the robberies the reasonable police officer would have reinvestigated and then recommended against further prosecution of Mr. Hill once Mr. Sotomayer was identified and arrested.
37. The standard of a reasonable police officer merely requires compliance with existing law and does not create an excessive burden. In this case it would have prevented Mr. Hill’s arrest and continued detention.
PART IV – SUBMISSIONS WITH RESPECT TO COSTS
38. ALST does not seek any costs for its intervention, but submits to this Honourable Court that costs should not be awarded against ALST in the event that this appeal is denied.
PART V – ORDER SOUGHT
39. ALST respectfully submits that a recognition of the tort of negligent investigation and setting the standard of care as to the reasonable police officer as stated herein is required to address the existing “crisis in the Canadian justice system.”
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 18TH Day of
October, 2006
_______________________ ______________________
Jonathan Rudin Kimberly R. Murray
Aboriginal Legal Services of