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Police cannot be compelled to investigate


December 8, 2014
By Mike Novakowski

Police do not owe a duty to any individual to investigate a crime.

In CN Police Service twice charged a CN employee with allegedly defrauding money from the company. The Crown withdrew the charges, the second time only after a preliminary inquiry. CN sued Holmes claiming damages for fraud and he sued CN, its police service and several officers for alleged misconduct for laying the unsuccessful criminal charges.

Holmes asserted that CN Police officers misused their criminal law authority by prosecuting him and his wife to enhance the company’s position in its civil lawsuit. He asked three police forces — London, Peel Region and the RCMP — to conduct criminal investigations into the conduct of CN Police. Each police force exercised its discretion and declined to open formal investigations.

Holmes then sought mandamus in the Ontario Superior Court of Justice (Divisional Court). Mandamus is a court order compelling a public official to perform an act required by law which it has neglected or refused to do. Holmes sought a court order compelling the three police forces to fulfill their duties by undertaking a criminal investigation into his complaints and laying charges against CN Police and its officers if warranted.

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The judge quashed the application completely because, among other grounds, he found mandamus did not compel police to investigate criminal offences. In his view, police do not owe a public or private law duty to a complainant to investigate a complaint. Rather, they have discretion whether to proceed.

Holmes then brought a motion for judicial review before a three member panel of the Divisional Court for an order setting aside the lower court’s quashing of his application for mandamus. He again wanted the three police forces to be compelled to undertake criminal investigations. He submitted that case law supported the proposition that every alleged victim of a crime had a right to have a court order police to either investigate their allegations or require them to establish in court that they had reasonable grounds (objectively and subjectively) to decline.

Justice Matlow, speaking for the three member court, disagreed. In his view, none of the cases cited by Holmes suggested that a court could order mandamus to compel a police force to investigate a particular criminal offence at the behest of an alleged victim of crime. Instead, there was a multi-pronged test for mandamus, including the requirement that there be a legal duty to act owed to the applicant.

Further, mandamus is unavailable to compel (1) the exercise of an unfettered discretion or (2) a fettered discretion in a particular way. Matlow noted that Holmes was unable to satisfy any of these elements. First, as the appeal court noted, “police do not owe either a public law or private law duty to any individual to investigate crime.”

Holmes was asking a court to dictate the outcome of the police forces’ discretionary decisions. All three police forces exercised their discretion and decided not to investigate the allegations Holmes made. He was now asking that police be compelled to investigate his allegations, something a court could not do.

[para. 19].

Holmes’ motion to set aside the order quashing his application for mandamus was dismissed.