Regulators are sometimes criticized for their investigations. Most regulators are protected for actions taken in good faith, even if negligent. However, to the extent that regulators can be sued for negligent investigations, the test for establishing liability can be summarized as follows (see: Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, http://canlii.ca/t/hs9m7):
- The appropriate standard of care for the tort of negligent investigation is that of the reasonable police officer in similar circumstances.
- In the laying of charges, the reasonable standard is informed by the presence of reasonable and probable grounds to believe the suspect has committed the offence.
- This standard does not require police to establish a prima facie case for conviction.
- The police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges.
- A police officer is not required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds.
This test is probably also relevant for courts and tribunals reviewing the adequacy of a regulator’s investigation in the context of complaint reviews or disciplinary hearings.
The Court in Tremblay noted that there should be expert evidence as to the standard of investigations in the context of the case before any finding of inadequate investigation is made. The Court also indicated that it is appropriate for investigators to choose not to interview the subject of the investigation before initiating further proceedings.