Civil Liability of the Police

Canadian law, and the law in general, tends to mirror its individualized society.  Punishment, rehabilitation and retribution to a certain extent, are the many goals that sentencing attempts to achieve.  The laws set forth by the Judicial System are entrusted to and carried out by the provincial law enforcement agencies (police) as well as many other agencies which include but are not limited to the RCMP (Royal Canadian Mounted Police) and CSC (Correctional Service of Canada).

According to the Toronto Police Service (http://www.torontopolice.on.ca/statistics/ytd_stats.php), deaths in Toronto by stabbing have been on the rise from 2011, with 2013 figures being almost triple that of that 2011 (This does not include people who have survived stabbing attacks).

We all rely heavily on the law to protect us when we are threatened or in danger but what happens when we feel like our own police and penal system fail us?  Who is to be held liable?  Here we take a look at a case that is all too relatable for some people.

In the case of Castle v. Ontario, Jesse Low was fatally stabbed by his friend Raymond Reid.  The deceased’s family (brother, mother and grandmother) filed suit for damages against the Ontario Provincial Police (OPP) claiming that they were liable for not providing a “duty of care” to their deceased family member.

Duty of care, when defined, is your legal responsibility to take the necessary reasonable steps to avoid others being hurt.

In September of 2011, three friends (namely Mr. Low, Mr. Reid and Mr. Ferguson) all went to a fair in Kinmount Ontario.  Mr. Reid has a prior record for assault in 2010 as well as a failure to report an accident in 2011 and was out on probation. 

The three friends separated and Mr. Reid was extremely intoxicated.  At the fair, he assaulted some young people and damaged a tent.  Police officers at the scene became aware the he was intoxicated and chose to remove him from the area and drop him off at his father’s home (where he resided) and he was released into his custody.  They did not charge him with any offence, even though at this point his actions were in clear violation of his probation (which included keeping the peace).  Coincidentally, the deceased victim lived with Reid at his father’s house and was also dating his sister at the time.

At some point after being dropped off, Mr. Reid left his father’s premises and met up with the same two friends at Mr. Ferguson’s house.  Not long after, a dispute sprung between a still intoxicated Mr. Reid and his friend Mr. Low and ended with Mr. Reid stabbing Mr. Low in his stomach. 

Mr. Reid called his father thereafter who came over to the house where the incident took place and brought the stabbed victim, still alive, to his house.  After some time an ambulance was called but unfortunately, Mr. Low died from his injury.

The plaintiff’s argue that the OPP had full knowledge of Reid’s prior violent behavior and the fact that he had assaulted the deceased victim on more than one occasion prior to this event.  The fact that he was intoxicated, lived in the same dwelling with the victim and was in violation of his probation, were all signs to keep Reed in their custody.  As a result, their decision to not do so cost a person their life and led to their failure and liability in the duty of care.

Are they correct?

The defendant’s position is:

• The OPP does not owe a private law duty of care to victims of crime or in this case family members of victims but to the wider public in general.
• Citing the Ann’s Test, they allege that if duty of care is present, it should be in relation to the victim and not his relatives since the deceased’s estate is not being represented but rather that of the family’s.
• The unfortunate incident was not foreseeable to require duty of care

The plaintiffs counter:

• They cited cases where the police were found to be liable for private law duty of care, to a specific type of potential victim for which they argue that Mr. Low qualifies.
• They referred to the same Ann’s Test, maintaining that the two fundamental criteria are met by their particular circumstances.
• Under the Family Law Act, the rights of defendants are outlined, qualifying them for the relationship of proximity between them and the OPP.

The motion was brought forth by the defence in an effort to revoke the statement of claim by the plaintiff.  After examining both sides and weighing the evidence brought forth by both parties, the ruling Judge found that the defence did not meet their burden of proof.  Their motion was dismissed and they were ordered to pay the plaintiff’s court costs.

Every case is different and requires extensive research and knowledge of the law and the rights of Canadian citizens.  Hiring a lawyer from the law firm of Ted Yoannou is the first step to finding reprieve on your way to justice.  Call us today for a free initial consultation and let us help you in your time of need.