Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al.
[Indexed as: Hill v. Hamilton-Wentworth Regional Police Services Board (No. 2)]
66 O.R. (3d) 746
 O.J. No. 3487
Court File No. 00-CV-192419
Ontario Superior Court of Justice
August 27, 2003
Police — Negligence — Malicious prosecution — Police investigators arresting plaintiff for bank robbery based on surveillance photos, use of photographic lineup, publication of photograph in media, Crime Stoppers tip and witness interviews — Plaintiff convicted but subsequently acquitted — Action against police officers and police services board for negligence, malicious prosecution and breach of Charter of Rights and Freedoms dismissed — Canadian Charter of Rights and Freedoms.
In December 1994 and January 1995, there was a series of bank robberies in Hamilton, Ontario. Based on surveillance photos, the use of a photographic lineup, the publication of a photograph in the media, a Crime Stoppers tip and witness interviews, police investigators suspected that the plaintiff Jason George Hill was the perpetrator. He was arrested and convicted for one bank robbery but, after more than 20 months in prison, he was acquitted. He and his family sued the Hamilton police who laid the charges and their employer, the Hamilton-Wentworth Regional Police Services Board, for malicious prosecution, negligence, and breach of the Canadian Charter of Rights and Freedoms.
Held, the action should be dismissed.
Two of the elements of the claim of malicious prosecution are that the proceedings must have been instituted without reasonable and probable grounds and that the defendant must have acted out of malice or for a primary purpose other than that of carrying the law into effect. Neither of these elements was established in this case. The defendant officers’ beliefs were honest, in the subjective [page747] sense, and reasonable, in the objective sense. There was no evidence of malice. There was no evidence that the prosecution was perverted or moved by improper purposes. The claim for negligence, for which the only issue was the standard of care required of the police officers and whether that standard was met, was not proven. On the evidence, none of the plaintiff’s Charter rights were violated. Although the plaintiff had suffered, it is not every wrong that the civil law can right. Police work is challenging and difficult and courts must be careful in not relying on hindsight in considering how the police responded.
Cases referred to
Hicks v. Faulkner (1882), 46 L.T. 130 (C.A.), affg (1881), 8 Q.B.D. 167, 51 L.J.Q.B. 268, 46 L.T. 127, 46 J.P. 420, 30 W.R. 545 (D.C.); Oniel v. Toronto (Municipality) Police Force (2001), 195 D.L.R. (4th) 59, 80 C.R.R. (2d) 90 (Ont. C.A.) [Leave to appeal to S.C.C. refused (2001), 87 C.R.R. (2d) 188n]; Proulx v. Qubec (Procureur gnral),  3 S.C.R. 9, 206 D.L.R. (4th) 1, 276 N.R. 201, 159 C.C.C. (3d) 225, 46 C.R. (5th) 1, 2001 SCC 66, 7 C.C.L.T. (3d) 157 (sub nom. Proulx v. Qubec (A.G.); Proulx v. Quebec (Attorney General)); Trident Construction Co. v. W.L. Wardrop and Associates Ltd., , 6 W.W.R. 481, 1 Man. R. (2d) 268,  M.J. No. 454 (QL) (Q.B.)
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 7, 9, 11 Authorities referred to
Linden, A., Canadian Tort Law, 6th ed. (Markham, Ont.: Butterworths, 1997)
ACTION for damages for malicious prosecution, negligence, and breach of the Canadian Charter of Rights and Freedoms.
Louis Sokolov, for plaintiffs. Paul Ryan, for defendants.
 MARSHALL J.: — This case arises on unusual facts. Those facts are most poignant for the plaintiff, Mr. Jason George Hill. He was charged and convicted of one of a number of bank robberies and ultimately acquitted, but not before he had spent more than 20 months in prison. The plaintiff, Mr. Hill, and his family have brought this action against the Hamilton Police who laid and pursued the charges and the Hamilton-Wentworth Regional Police Services Board, their employers.
 In Hamilton in late 1994 and early 1995, there were a series of similar bank robberies that were given by the police and the media the moniker “Plastic Bag Robberies”.
 I want to review some of the evidence in regard to these robberies so that one can understand how the various proceedings we are concerned with unfolded.
 The first two robberies occurred on December 16 and 19, 1994 respectively. They were at the Canadian Imperial Bank of Commerce, 1091 King Street East and then at a Toronto-Dominion Bank branch on December 19, 1994. [page748]
 The witness to the first was one Laura Rizzoto. She described the assailant as thin and short. She did not notice facial hair but said it could have been a “North American Indian”. On the December 19 robbery, the witness, Susan Mathewson, described the robber as clean shaven, dark skinned, Asian, short curly dark hair. A second witness described the man as Hispanic — but no facial hair.
 The modus operandi was also similar — that is, a plastic bag was handed over by the robber to be filled.
 On December 20, the police issued a press release describing the suspect as “. . . Hispanic or mulatto, early 20’s, 5’6(, short black hair, stocky build with broad shoulders” and an “acne complexion . . .”.
 On December 21, 1994, the third robbery occurred. There were a number of witnesses and the assailant was similarly described. This was a downtown branch of Effort Trust.
 At this point, the case was assigned, because of the common descriptions of the culprit and the similar modus operandi, to the Hamilton Major Crimes Unit. The defendant Jack Loft was to be the lead investigator.
 Then, on December 29, 1994, a fourth and similar robbery took place, this time at the Talka Credit Union.
 On January 2, 1995, Detective Loft issued to all officers a composite of the descriptions he had assembled. He said the robber may be unshaven, [with] dark hair, dark complexion, [and] dark eyes.
 On January 5, a fifth robbery occurred, this at the Canadian Imperial Bank of Commerce branch, 262 Ottawa Street North. A similar description and modus operandi was given.
 A relatively good surveillance photo was obtained. It showed the robber in profile. It is not, in my view, sufficiently clear to be sure of facial hair or mustache.
 A sixth robbery occurred on January 11, 1995. There was a similar description but this time both witnesses described him as Hispanic, [and] there was a similar modus operandi. This was the Polish Credit Union.
 A seventh robbery took place on January 12, 1995 — again a similar description and modus operandi. This was the Centennial Credit Union.
 At this point, a seemingly serendipitous event occurred. A police officer – one of the defendants here, Ian Matthews, on seeing the surveillance photo taken during the January 5 robbery, claimed he recognized the perpetrator as someone he had arrested in the past. This was January 12. At the same time, a Crime Stoppers tip had been received regarding Mr. Hill. Matthews, on hearing of this, believed that Mr. Hill was the man pictured in the robbery video and the man he had previously arrested. [page749]
 As it turned out, the man in the video was not Mr. Hill. Clearly there is a resemblance but Officer Matthews testified that he was sure that it was Mr. Hill.
The Photo Line-up
 The defendant Officer Terry Hill, not to be confused with Jason Hill, was the Identification Officer who prepared the photo line-up. Eleven men with appearances similar to Mr. Hill were used. Mr. Hill, however, was the only non-Caucasian in the line-up.
 On January 12, 1995, Detective Loft showed the photo line-up to three witnesses from the previous two robberies.
 The three witnesses were not very helpful; though one said she was 85 per cent sure it was Mr. Hill.
 In a media release the same day, the police now believed the robber was Hispanic and spoke with a Spanish accent.
 On January 13, 1995, and in large part due to the identification of Mr. Hill by Detective Matthews, as well as some evidence that the man was native and the identification I have just referred to, Detective Loft decided to seek to arrest Mr. Hill.
 Detective Loft characterized the identification by Detective Matthews as “an excellent identification by an experienced officer . . .”. The warrant was issued only for the January 5 robbery. Robbery #5, that was the robbery upon which Detective Matthews made his identification.
 On January 15, robbery number eight occurred. This was at the “7-11” store. The description and modus operandi were similar.
 On January 16, 1995, the ninth robbery occurred at the Polish Credit Union. This was the same location as the January 11, 1995 robbery. The robber was identified as the same robber who had robbed it the first time.
 One expects the police were confounded. On January 16, the police released to the media the photo of Mr. Hill used in the police line-up.
 Mr. Hill was described as the suspect.
 The picture was shown on television and appeared in the Hamilton Spectator. The caption under the picture said, “Jason Hill no longer has goatee”. This reflected the preponderance of witnesses’ testimony, though it was still not clear if there was some facial hair and, if so, how much. The police, specifically Detective Loft, believed at this time that Mr. Hill did not have a goatee. But, of course, he had not yet seen Mr. Hill.
 On January 17, 1995, Detective Loft presented the photo line-up to a number of other witnesses to the robberies. Most identified Mr. Hill as the robber, but most thought he did not have a goatee. It is clear that this identification by the witnesses [page750] of the first nine robberies, because of technique, but also because this same picture of Mr. Hill had been in the media, was far less then optimal, indeed, dangerous, identification evidence. Detective Loft used his own techniques that he had developed throughout his long police career in regard to methodology.
 On January 23, the Industrial Credit Union was [robbed]. Two tellers, Pamela Lepr and Lorene Caldwell, were interviewed at the scene. The witnesses were not segregated by Constable Andrea McLaughlin, as is usual, but both gave their descriptions together.
 These tellers had enlarged copies of the Spectator picture of Mr. Hill on their desks. Ms. Lepr said that the robber was Mr. Hill and that he now had a “partial goatee”. Both said Mr. Hill was the robber.
 It was Detective Loft’s view at this time that the robber had started out clean-shaven but had developed a goatee.
 There was other evidence implicating Jason Hill in this tenth robbery. Another officer, Joseph Stewart, had been driving past the Industrial Credit Union while on his lunch break and said he saw Mr. Hill approaching and leaving the Credit Union. The sighting was moments before the robbery. He had been given a picture of Mr. Hill and said he saw him while driving by.
 Officer Stewart then searched for Mr. Hill in the area. Then, being unsuccessful, [he] returned to the Credit Union to find it had just been robbed. He said he told the investigating officer of this sighting. This was confirmed by that officer.
 Detective Loft had been away during this time but on his return was informed of this event.
 On and after January 25, 1995, the police got a series of tips that indicated that the tipster knew Jason Hill but also knew two males, a Cuban named “Pedro” and a Spaniard named “Frank”.
 This person said they spoke with Spanish accents and were the perpetrators. This “Frank” was Frank Sotomayer, who was eventually also charged and eventually convicted of some of the robberies.
 On January 27, 1995, Mr. Hill was arrested. He was now charged with all ten robberies. His arrest photo shows a moderate goatee.
 Detective Loft said he believed Mr. Hill was the culprit and that the goatee had been growing over the course of the robberies.
 In spite of Mr. Hill being in jail, the robberies continued. On February 7, the Industrial Credit Union was again robbed.
 Now the witnesses still said the culprit looked like the picture of Mr. Hill that had been in the paper, but with a somewhat thinner face. [page751]
 Detective Sid Millin, who was then investigating the latest robberies, learned again that Frank Sotomayer could be the real robber. A tipster had given a partial licence plate number and this also led to Sotomayer.
 Photos of the December 16, 1994 robbery were found to resemble Sotomayer more than Mr. Hill. Detective Millin said he discussed this with Detective Loft.
 On March 7, 1995, the Crown began to withdraw charges against Mr. Hill. On March 10, 1995, the Crown Brief was delivered to Mr. Hill’s defence counsel. The police, at this point, suspected that Mr. Hill was a copycat bandit.
 The remaining charges against Mr. Hill went to preliminary hearing on April 7, 1995. Two more counts were withdrawn at this time. Detective Loft still believed Mr. Hill was one of the perpetrators. Detective Millin advised the Assistant Crown with the carriage of the Sotomayer file and at this point disclosure of the misidentification was made to Mr. Hill’s counsel.
 Before trial, the matter was placed in the hands of Assistant Crown Attorney Joe Nadel. The Crown determined there was no chance of conviction in regard to all robberies but one. This was the Industrial Credit Union robbery of January 23, 1995. The evidence against Mr. Hill was based on the identification evidence of tellers Lepr and [Caldwell] and the drive-by identification of Officer Stewart. The matter was heard by a jury and, on the evidence, Mr. Hill was convicted. He was sentenced to three years in prison. He appealed his conviction and the appeal was heard on August 6, 1997. By this time he had served 318 days in the penitentiary. The Court of Appeal ordered a new trial. They declined to enter an acquittal on the basis that the conviction had “not been unreasonable”. They arrived at this conclusion on the basis of the two cashiers identifying him and Officer Stewart sighting him. Part of the reason for Mr. Hill’s total time in prison was that, though granted bail, family difficulties had resulted in his surety no longer being willing to have Mr. Hill live in her home. The result was that he had surrendered into custody.
 At the second trial, the surveillance video of the robbery was enhanced and an expert testified that the culprit did not have a goatee. Mr. Hill was acquitted.
The Issues and Resolution
 Though a number of grounds of liability were pleaded, including conspiracy and abuse of process, at trial counsel for Mr. Hill relied on the issues of malicious prosecution, negligence and a breach of the Canadian Charter of Rights and Freedoms. [page752]
 Four elements are required for the tort of malicious prosecution [Note 1]. The four elements are:
(a)The impugned prosecution must have been initiated or continued by the defendant.
(b)The proceedings must have terminated in favour of the plaintiff.
(c)The proceedings must have been instituted without reasonable and probable grounds.
(d) The defendant must have acted out of malice or for a primary purpose other that of carrying the law into effect.
Reasonable and Probable Grounds
 The first two issues in an action for malicious prosecution are straightforward enough. Turning then to the issue of reasonable and probable grounds.
 The test for reasonable and probable grounds is taken from the case of Hicks v. Faulkner (1881), 8 Q.B.D. 167, 51 L.J.Q.B. 268 (D.C.), at p. 171 Q.B.D. Hawkins J. [said] there must be “. . . an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent and cautious man, [or woman] placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed”, [Note 2] and the belief must be reasonable in the circumstances [Note 3].
 Applying that test to the case before me here, I am satisfied that the officers’ beliefs were honest in the subjective sense and, as well, reasonable in the objective sense.
 Detective Loft struck me as a highly experienced and competent police officer. I found him a frank and reasonable witness.
 This case and the unfortunate result for the plaintiff here, have left him, in retrospect, I expect, with some regrets in regard [page753] to his investigation of these robberies. However, reality becomes clearer after the frenzy of the moment. I found him a credible witness and I accept his testimony. I accept he had an honest belief in the guilt of the plaintiff at the operative time. In regard to the reasonableness of that belief, I find as a fact that it was reasonable.
 He had eyewitness identification from Officer Joseph [Stewart] and from the tellers. They had the newspaper photos of Mr. Hill, blown up on their desks. I assume they looked up and then down, down and then up. They identified the assailant as Mr. Hill. But there is more.
 Officers Matthews and [Stewart] confirmed the implication of Mr. Hill. At the time Detective Loft was required to make his decision, there was an armed robber on the loose, striking almost daily. I am sure, looking with hindsight, that there are many frailties now evident in the identification of the tellers and the officers, but this is what the police had at the time.
 Detective Loft took his case to the Crown Attorney. Mr. Joseph Nadel is an [experienced] Crown. He gave very cogent and clear evidence as to his interaction with Detective Loft. He thought there was a reasonable prospect of conviction. This was borne out by the fact that there was a conviction and indeed the limited endorsement of the appellate court. It is true that in the end it turned [out] to be a wrongful conviction, but I accept the testimony and the bona fides of Mr. Nadel.
 Turning to Officer Stewart, I found him, as well, a credible witness. These events are now eight years ago, so that one would expect inconsistencies on some details, but on the whole, in my view, his evidence was credible. His attendance at the scene of the robbery minutes after he had made his sighting, in my view, corroborates his story. On balance then, I accept his evidence.
 Similarly, with Officer Matthews. Again, it is eight years ago. He was a forthright and, in my respectful view, credible witness. I accept his evidence as well as his bona fides in identifying Mr. Hill — though in the end he was in error.
 Having come to the conclusion I have, on reasonable and probable grounds that is, of itself, sufficient to dismiss the claim under malicious prosecution. However, I would add that I do not find there was malice in the officers’ prosecution of Mr. Hill, that is, malice in the sense of this prosecution being for an improper purpose. I accept the bona fides of the police conduct of this case. There was, in my view, not a shred of evidence of the prosecution being perverted or moved by improper purposes [Note 4]. [page754]
 Turning to the claim in negligence — one of the many divisions of the subject of negligence requires four elements. I will use this because it is straightforward and contains, in my view, the issues required to deal with the case before me. [Note 5] The most basic requirements are:
(2) Failure to conform to the standard required;
(3) Proximate cause; [and]
 Three of the four requirements are, in my view, present. The issue for the court, in this case, is that of the standard of care required of the police officers in this case and was that standard met.
 A recognized and useful definition of the standard of care required of a police officer can be taken from the case of Trident Construction v. W.L. Wardrop and Associates Ltd.,  6 W.W.R. 481, 1 Man. R. (2d) 268 (Q.B.), at p. 533 W.W.R. (per Wilson J.), speaking of an engineer. The judge said:
[The] degree of skill consistent with the function discharged, that is, consistent with the measure of skill displayed by others reasonably competent in that profession touching matters of like kind. Perfection is not expected; the world of work, not the ideal of the debating arena, is the standard. [Note 6]
 Professor Lodge Lindsay is an expert in police identification procedures. He has done a great deal of research writing and teaching on the techniques and pitfalls of police line-up identification. He was a most useful witness. He has created a good deal of the literature on this subject himself. He also taught at the Ontario Police College in the early 1990s.
 He testified as to the current practice in using photo line-ups in Canada.
 He said that though there are guidelines — indeed there were guidelines available to the Hamilton Police — “there are no rules” — or in other words as far as the police go, there is no standard methodology across the country.
 This was borne out by the testimony of Detective Loft himself who said there were no obligatory procedures or standard [page755] required procedure. He had developed his own ways over the decades of his police work.
 Professor Lindsay, as an example, advocated what is known as blind testing. This involves having an uninterested officer and not the investigating officer, administer the test. This eliminates subtle bias arising from administering the photo line-ups.
 Professor Lindsay candidly admitted that police generally have resisted this procedure — perhaps because of a shortage of officers and resources.
 He said [that] generally “there is a great deal of variance in practice right up to the present time” (August, 2003).
 In regard to structural bias, that is bias from the way the line-up is presented, he recommended that pictures be shown one at a time, that is, sequentially with a definite answer being elicited before going on to the next. If a large number are shown, he explained the witness tends to see it as multiple choice questioning so that even if the perpetrator is not shown the witness will choose the one most like his memory of the person he or she saw. False positives will be common. The professor outlined a number of such practices set out in modern police guidelines but he emphasized that these were not compulsory and often not followed in the field.
 In the case at bar, the pictures chosen by the officer, on the facts, if you will, were all Caucasian. I have, however, looked at the images selected and, though Caucasian, they are very similar to the picture of Mr. Hill. Put another way, I do not think that the Caucasian and native Canadian mix in fact had any sway in the arrangement chosen, or in the results in regard to Mr. Hill being picked out. I am satisfied there was a real similarity between Mr. Hill and Mr. Sotomayer.
 Turning to the claim under the Charter, rights protected by ss. 7, 9 and 11, because of the finding of fact that I have made and set out, I do not find that any or all of the defendants named violated Mr. Hill’s rights.
 With those findings as well, the claim against the Board on the basis of vicarious liability must also fail.
 Before leaving the matter, however, I feel obliged to say that the court is sensitive to the damage that Mr. Hill and his family have suffered — both by the wrongful conviction and the time Jason Hill spent in prison. They have suffered a great deal. However, it is not every wrong that the civil law can right. As well, as evident in the authorities, police work is challenging and difficult and courts must be careful in not relying on facile hindsight in considering how they have responded. [page756]
 In the result then, though sympathetic to Mr. Hill and his family, I am of the view that under the law, for the reasons I have set out, the plaintiffs are not entitled to the compensation sought here.
 In the result the plaintiffs’ claim is dismissed. Counsel, if they so wish, may speak to me in regard to costs.
Note 1: Proulx v. Quebec (Attorney General),  3 S.C.R. 9, 2001 SCC 66.
Note 2: Oniel v. Toronto (Municipality) Police Force (2001), 195 D.L.R. (4th) 59, 80 C.R.R. (2d) 90 (Ont. C.A.), at p. 79 D.L.R.
Note 3: Ibid, at para. 43 (QL).
Note 4: See Ibid., para. 49.
Note 5: See A. Linden, Canadian Tort Law, 6th ed. (Markham, Ont: Butterworths, 1997), at p. 98.
Note 6: Ibid., at p. 146.