Course:Law3020/2014WT1/Group W

Odhavji Estate v. Woodhouse

Facts

Plaintiff was shot while fleeing from a bank robbery, plaintiff’s family brought at trial (Ontario Court General Division):

1. Action against police chief was allowed to proceed (tort of misfeasance in a public office)
2. Action against Metropolitan Toronto Police Services Board was not (tort of misfeasance in a public office)
3. Action against the Province of Ontario was not (tort of misfeasance in a public office) for failing to ensure police officers involved were segregated, provided case notes, clothing and blood samples, and attended interviews with the SIU.

Statement of claim alleges mental distress, anger, depression and anxiety as a consequence of the alleged misconduct, but the plaintiffs will have to prove at trial that the alleged misconduct caused anxiety or depression of sufficient magnitude to warrant compensation.

Defendants also brought motion to strike out Plaintiff's statement of claim based on Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b). (which was not successful)

Relevant Provisions
Action against Chief
Police Services Act s.41(1)(b):
41. (1) The duties of a chief of police include,
(a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31 (1);
(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;
(c) ensuring that the police force provides community-oriented police services;
(d) administering the complaints system in accordance with Part V. R.S.O. 1990, c. P.15, s. 41 (1); 1995, c. 4, s. 4 (8, 9); 1997, c. 8, s. 27.

Action against Metropolitan Toronto Police Services Board:
Police Services Act s.31(1):
Responsibilities of boards
31. (1) A board is responsible for the provision of adequate and effective police services in the municipality and shall,
(a) appoint the members of the municipal police force;
(b) generally determine, after consultation with the chief of police, objectives and priorities with respect to police services in the municipality;
(c) establish policies for the effective management of the police force;
(d) recruit and appoint the chief of police and any deputy chief of police, and annually determine their remuneration and working conditions, taking their submissions into account;
(e) direct the chief of police and monitor his or her performance;
(f) establish policies respecting the disclosure by chiefs of police of personal information about individuals;
(g) receive regular reports from the chief of police on disclosures and decisions made under section 49 (secondary activities);
(h) establish guidelines with respect to the indemnification of members of the police force for legal costs under section 50;
(i) establish guidelines for dealing with complaints under Part V, subject to subsection (1.1);
(j) review the chief of police’s administration of the complaints system under Part V and receive regular reports from the chief of police on his or her administration of the complaints system. R.S.O. 1990, c. P.15, s. 31 (1); 1995, c. 4, s. 4 (7); 1997, c. 8, s. 21 (1-3); 1997, c. 17, s. 8; 2007, c. 5, s. 9 (1).

Action against Province
Police Services Act s.3(1):
Duties and powers of Solicitor General
(2) The Solicitor General shall,
(a) monitor police forces to ensure that adequate and effective police services are provided at the municipal and provincial levels;
(b) monitor boards and police forces to ensure that they comply with prescribed standards of service;
(c) Repealed: 1995, c. 4, s. 4 (1).
(d) develop and promote programs to enhance professional police practices, standards and training;
(e) conduct a system of inspection and review of police forces across Ontario;
(f) assist in the co-ordination of police services;
(g) consult with and advise boards, community policing advisory committees, municipal chiefs of police, employers of special constables and associations on matters relating to police and police services;
(h) develop, maintain and manage programs and statistical records and conduct research studies in respect of police services and related matters;
(i) provide to boards, community policing advisory committees and municipal chiefs of police information and advice respecting the management and operation of police forces, techniques in handling special problems and other information calculated to assist;
(j) issue directives and guidelines respecting policy matters;
(k) develop and promote programs for community-oriented police services;
(l) operate the Ontario Police College. R.S.O. 1990, c. P.15, s. 3 (2); 1995, c. 4, s. 4 (1); 1997, c. 8, s. 2 (2, 3).

Issue(s)

Analysis

Natural Law - St. Thomas Aquinas

Elements of Valid Law:

1. Directed to Common Good - Order Imposed By Law
2. Follow Practical Reason
3. Must be Made by Valid Lawmaker
4. Must be Promulgated

Legal Positivism

Classical Positivism - John Austin

Austin's Three Directives:

1. God's law: "revealed" law; province of religion
2. Positive morality: norms: manners, customs, club rules, international law, English constitutional law
3. Has to be created in accordance with the rule of law making jurisdiction regarding the creation of law (pedigree test) (origin of the rule).
4. Positive law: command, issued by superiors to subordinates, backed by sanctions

Post WWII Positivism - HLA Hart

Hart Criteria:

1. Primary rules (tell us what is what isn't permitted)
2. Secondary rules (rules that allow us to change the rules, adjudicate disputes about the rules, or figure out what the rules are)
3. Rule of recognition (rules must be recognized by officials, must be applied by officials, and the officials must believe that they ought to apply them)

Positivist view is that laws are human artifacts, not dependent on moral content for validity, BUT disobedience may be warranted when laws are immoral.