Police Investigating Police in Romanic v Johnson

In this case, the Ontario Court of Appeal addresses a civil suit brought by a former policeman against the Niagara Regional Police Department (NRPD), several individual police officers and a former employee. The appellant alleged the torts of negligent investigation and malicious prosecution following the NRPD’s criminal investigation of the appellant.

Facts

The appellant, Michael Romanic, was a Constable with the NRPD until he was arrested in connection with four criminal offenses associated with his duties as a police officer. Prior to his arrest, Romanic also ran a business known as “Ace Mobile Locksmith.” On October 28, 2005 he was arrested. The arrest followed an investigation against Romanic started by a tip provided by an employee at Ace Mobile Locksmith, Michael Johnson.  As part of the investigation, Romanic was detained for 30 minutes and search warrants of his truck and residence were executed. The Crown agreed to abandon the criminal claims against the appellant as part of a resolution agreement because the charges were no longer in the “public interest.” The agreement was that in exchange for abandoning the criminal charges, the appellant resigned as a police officer.

Judicial history

At trial, the Romanic claimed the torts of malicious prosecution and negligent investigation against the NRPD, Johnson and five police officers (Romanic v Michael Johnson, 2012 ONSC 3449 (CanLII)). The appellant sought $1.1 million in damages. The defendants sought summary judgment of the issue under Rule 20 of the Rules of Civil Procedure, RRO 1990, Reg 194 on the basis that Romanic’s claim had no chance of success (para 6). At trial, the Court found that “summary judgment must be granted as the plaintiff’s action is, indeed, meritless” due to the agreement reached between the parties (para 6).

Appeal decision

On appeal, the appellant argued that the trial judge erred by failing to examine the circumstances surrounding the agreement between Romanic and the NRPD as per Ferri v Root (2007) ONCA 79, [2007] OJ No 397 at para 23. At the time of the investigation, the appellant was recovering from cancer. The appellant contended that he was too sick to fight the charges and that the Crown exercised an inappropriate position of strength vis-à-vis the appellant (para 8). Therefore, the withdrawal of criminal proceedings should be read in the appellant’s favour (para 8). However, there was no evidence that the Crown abused any position of strength that it had against the plaintiff or demonstrated any type of “fraud, perjury or duress” (para 11).

The Court of Appeal unanimously dismissed the appeal on the basis that the appellant could not make out the torts of malicious prosecution or negligent investigation on the facts or the law.

Analysis

(i) Malicious prosecution

The standard for malicious prosecution was established by the Supreme Court of Canada in Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170. In this case, the Supreme Court held that a plaintiff alleging malicious prosecution must successfully prove four elements:

a)     The prosecution was initiated by the defendant;

b)    The prosecution was terminated in favour of the plaintiff;

c)     There was no reasonable and probable cause for the prosecution; and

d)    The defendant was motivated by malice, or a primary purpose other than that of carrying the law into effect (paras 192-193)

In this case, only the first criterion is satisfied. The second criterion is not met because the resolution of the case by agreement does not constitute a determination in favour of the appellant.  The trial judge found that that there was probable cause of the charges, which related to the appellant’s work as a police officer (para 43). This precludes proving the third criterion. Finally, there is no evidence of malice on the part of the police. It was a finding of fact at trial that the police in no way acted to pervert justice (para 55). The NRPD was obligated to investigate the appellant and was willing to reach a resolution with the appellant. Therefore, the tort of malicious prosecution could not be established.

(ii) Negligent Investigation

The Supreme Court in Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 SCR 129 established a high standard for the tort of negligent investigation:

The tort of negligent investigation should only be allowed for pains and penalties that are wrongfully imposed […]. The loss or injury as a result of alleged police negligence is not established until it is clear that the suspect has been imprisoned as a result of a wrongful conviction or has suffered some other form of commensurable harm as a result of negligent police conduct (paras 92 and 97).

There was no evidence that the investigation, search of the appellant’s property or custody was unwarranted. There was also no negligent police conduct of any kind. Moreover, the two sides reached a resolution, which was acceptable to the appellant at the time. There is no legal basis for claiming losses incurred incidentally from a valid police investigation.

The use of police power to investigate crime is necessary to the proper function of the justice system. While there are civil remedies available to those investigated by the police, the threshold for satisfying the standards of malicious prosecution and negligent investigation is high. This is important to prevent a chilling effect on police investigations, particularly when police are required to turn their interrogative lens on their own.