The actions of policing bodies towards community members, and more specifically, towards “victims” of crime, has been impossible to litigate in Ontario. In 2011, in the Wellington v. Ontario decision (2011 ONCA 274), the Court of Appeal firmly stated that there is “a long list of decisions rejecting the proposition that the police owe victims of crime and their families a private law duty of care in relation to the investigation of alleged crimes.” In Wellington v. Ontario, the family of a young man killed by two police officers sought to bring a claim in negligence against the Special Investigations Unit for various deficiencies in their investigation of the death; their claim was dismissed based on the Court of Appeal’s view that these types of claims were not grounded in any realistic duty of care given the public duties of policing bodies.
A couple of weeks ago, the Ontario Reports published Justice Grace’s decision on a summary judgment motion in a negligence action against police in Roe v. Leone et al., 2012 ONSC 6237, to little fanfare. But this is one to watch, my friends.
It’s a sad story involving allegations of HIV non-disclosure by a male individual, who was known at an early stage to both the Windsor Health Unit and to the Windsor Police as suspected of engaging in unprotected sex with various female partners. Both the Windsor Health Unit and the Windsor Police opposed the women’s claims on the grounds that there was no private law duty of care owed to the plaintiffs, who believe they became HIV positive after their encounters with the male individual. Despite their best arguments, Justice Grace refused to reject the statement of claim outright, indicating that the factual scenario envisioned by the claim did not fall within an established or analogous category establishing (or negating) a duty of care owed to these women. He then held that a determination of whether the Windsor Health Unit and / or the Windsor Police owe the plaintiffs a private law duty of care should be determined on a full evidentiary record at trial.
You know this decision will be appealed. And you know the relationships between the male individual, the female plaintiffs, the Windsor Health Unit and the Windsor Police will be examined in manners alternately offensive (the heavily stigmatized HIV positive male individual as a “sexual predator concerned with self-gratification”), dismissive (the women belonging to the faceless general public to whom the police owe no particular responsibilities), and philosophical (just what are the roles of public health initiatives and criminal laws in preventing HIV transmission?). What’s most notable, though, is that we may see the door open yet again – albeit only a tiny amount – to the possibility of civil suits against policing bodies on behalf of victims of crime. Keep an eye on this decision and where it goes.