Suing the Police

In Canada, wronged people who decide to bring civil claims against police officers for acts they commit in the course of duty may do so in a court of competent jurisdiction (e.g., a court able to rule on legal matters within a particular geographic area and/or over certain types of legal cases) and the plaintiff is entitled to compensation if the court grants a favourable judgment (Legalline.ca), “What happens after a complaint against a police officer is made”.

Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] S SCR 129 sheds light on the expectation of duty of care and standard of care applicable to police officers in carrying out investigative duties. On the standard of care, the majority per Justice Abella states (at para 68):

a number of considerations support the conclusion that the standard of care is that of a reasonable police officer in the circumstances.

 The Legal Position in Alberta

The Alberta Court of Justice lacks the authority to hear civil claims against peace officers; s 9.6 (2)(d) the Court of Justice Act, RSA 2000, c C-30.5, (CJA), provides:

The Court does not have jurisdiction to hear and adjudicate on a claim or counterclaim against a judge, justice of the peace or peace officer for anything done by that person while executing the duties of that office.  

In addition to the above, s 39(2) of the Police Act provides that the chief of police is a joint tortfeasor who is vicariously liable (liable by virtue of the relationship as supervisor of the officer) for a tort (a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act) committed by a police officer in the course of duty if:

(a)  the police officer’s actions at the time of committing the tort are as a result of the instructions of the chief of police;

(b)  the acts of the police officer are as a result of the performance of the duties expected of police officers (Police Act, RSA 2000, c P-17, s 39 (2) & (3).

 The implication of s 39(2) of the Police Act and s 9.6(2)(d) CJA is that a peace officer and his or her chief of police may be sued jointly in a civil action, which must commence at the Court of Queen’s Bench of Alberta, regardless of the amount of monetary damages that the plaintiff seeks; this places s 9.6(2)(d) CJA in a class of its own by its exclusion from the mandatory jurisdiction the court exercises over claims not exceeding $100,000 (Court of Justice Civil Procedure Regulation, Alta Reg 176/2018 (CJCPR)). Section 9.6 (2)(d) CJA causes hardship to aggrieved persons who seek relief of $100,000 or below. For example, some critics of the provision argue that it discourages plaintiffs or potential plaintiffs from suing the police for professional misconduct, or abandoning claims altogether resulting from either financial hardship or time factors (Jonny Wakefield, “Why it's 'almost impossible' to successfully sue police in Edmonton”. Wakefield notes that the length of time spent on resolving such cases now encourages claimants to settle out of court, an occurrence that he believe puts the complainant in a disadvantaged position. On the other hand, Wakefield notes that supporters of the provision argue that it acts as a hindrance to a floodgate of frivolous litigation against members of the police force.

The Position in Two Comparative Jurisdictions: British Columbia and Ontario

British Columbia and Ontario are two provinces where provincial courts (lower courts) possess jurisdiction to hear civil claims against peace officers.

In British Columbia, if a police officer injures, violates the rights of, or damages property of a person, the aggrieved individual may bring a civil action against the police officer, as well as the police force in either the Provincial Court (small claims court), or the Supreme Court of British Columbia (Dial.A.Law, “Complaints against the municipal police”. The guiding factor in determining the most appropriate court to sue the officer and the police is the monetary relief which the plaintiff seeks; the limit for all civil claims in the provincial court is $ 5001 to $35,000 (Small Claims Rules B.C. Reg. 261/93, s 4; Provincial Court of British Columbia, “Small Claims Cases”). 

 The Ontario provision is similar to that of British Columbia; a person may sue the police at the Small Claims Court (The Small Claims Court is a branch of the Superior Court of Justice, Ontario. See Courts of Justice Act, R.S.O. 1990, c. C.43, s 29 [CJA] for monetary claims not exceeding $35,000, and there is no legal requirement for legal representation in the civil claim (See CJA s.23 (1);  Court of Justice Act, O. Reg. 626/00, s 1(1); Steps to Justice, “Can I sue the police for violating my rights?”). Only the Superior Court of Justice Ontario has the jurisdiction to hear claims exceeding $35,000, and it allows the plaintiff to harness a simplified procedure for damages between $35,001 and $200,000 without lawyer representation (Steps to Justice). Examples of civil actions that a person may bring against the police in the provincial and superior courts include the negligent use of force, illegal searches and seizures, assault, battery and wrongful arrest and detention (Steps to Justice).

Benefits of a Simplified Process of Suing the Police in a Provincial Court

 Generally, one benefit of civil actions against the police is that they allow for greater accountability. For example, in Doe v Metropolitan (Municipality) Commissioners of Police, [1998] O.J. No. 268139 , O.R. (3d) 487,  the court held the police liable to the plaintiff for negligent investigation. In Kirby v. British Columbia (Attorney General), 41 BCLR (3d) 45, 1997 CanLII 2611 (BC SC).the court held that the police breached a reasonable duty of care for safety during an arrest. In 2017, the Small Claims Court of Ontario awarded $ 25,000 compensation to a man beaten up by the police during an arrest (Tom Blackwell, “Ontario man who wanted to be a cop wins $25,000 after suing police for beating, jailing him unlawfully” National Post  (3 January 2017).

There are numerous benefits of bringing a civil action in the Alberta Court of Justice. It is simpler, quicker and less expensive, because it is not a mandatory requirement that a lawyer should represent a plaintiff (Alberta Court of Justice, “Areas of Law”). Section 9.6 (2)(d) constitutes a problem of access to justice because it takes away from would-be plaintiffs the simplified process of holding police officers accountable for civil wrongs in the provincial court.  

Recommendation

Since there is no restriction on the police suing citizens in the Alberta Court of Justice, there should be equality in access to justice for people who wish to sue the police in the Alberta Court of Justice, by revising or repealing s 9.6 (2)(d) CJA.

For information about using the police complaints procedure, please see ACLRC’s How to make a Complaint Against the Police under our Enforcing your Rights Tab.