On October 4th, a 6-3 majority of the Supreme Court of Canada held that an investigating police officer owes a private law duty of care to the suspect under investigation. This is a duty of care case and not directly about information and privacy. There are, however, a couple of points of significance to readers of this blog.
First, investigations obviously involve the collection of personal information, and the new duty will inform such collections. Unlike section 8 of the Canadian Charter of Rights and Freedoms, which only operates to restrict the collection of information, the new duty could conceivably require its collection. In fact, in this case one of the allegations was that the police breached their duty of care by failing to re-investigate after receiving exculpatory evidence after charges were laid. Based on the majority’s reasoning, there is no reason why a private investigator or a member of a company’s audit or security staff would not be found to be subject to an analogous duty quite apart from any factors related to the underlying relationship between the investigator’s principal and her suspect.
Second, this is the first time the Supreme Court of Canada has commented on the important Jane Doe duty to warn case, which was relied upon by the majority (of five judges) at the Court of Appeal in recognizing the new duty. Writing for the majority of the Supreme Court, McLachlin C.J.C. said that Jane Doe was not analogous and noted that there is significant debate over the content and the scope of its ratio. For the minority, Charron J., went further and explained:
Hence, the trial judge in Jane Doe held that where the police are aware of a specific threat to a specific group of individuals, the police have a duty to inform those individuals of the specific threat in question so that they may take steps to protect themselves from harm. As Moldaver J. (as he then was) said, speaking for the Divisional Court in confirming that the action could proceed to trial, “[w]hile the police owe certain duties to the public at large, they cannot be expected to owe a private law duty of care to every member of society who might be at risk”: Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 72 D.L.R. (4th) 580, at p. 584. Hence, Jane Doe cannot be read to stand for the wide proposition that the police owe a general duty of care to all potential victims of crime. Such an interpretation would ignore the fact that there must be more than mere foreseeability of harm before a duty of care will arise; there must also be sufficient proximity between the parties and the absence of policy considerations negating the existence of any prima facie duty of care.