Assignment 1
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University of Toronto, Mississauga *
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5049
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Law
Date
Feb 20, 2024
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docx
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Uploaded by vaness2231
Assignment 1
The Application of Malicious Prosecution and Negligent Investigation to Private Forensic
Investigators
Course Code
: LAW5049
Course Name
: Legal Components in a Forensic Investigation
Instructor
: Tony Jewells
Date
: February 12
th
, 2024
Introduction
In the context of private forensic investigations, the torts of malicious prosecution and negligent investigation can have far-reaching consequences due to the unique nature of the work performed by private investigators. These concepts pertain to the actions or omissions of private investigators during their work and can result in legal liabilities if not handled with care and diligence (Mazzuca, 2010). Private forensic investigators often operate within a more ambiguous
legal landscape than public law enforcement agencies, which operate under specific regulatory frameworks and oversight mechanisms. More specifically, private forensic investigators may less
clearly define the boundaries between investigative activities and legal responsibilities due to the
absence of standardized procedures and oversight (Andrews, 2023).
The principles of malicious prosecution and negligent investigation serve as a crucial safeguard against potential abuses of power, injustice, and professional misconduct within private forensic investigations ((Mazzuca, 2010). Private investigators must understand and uphold these principles to navigate the balance between thorough investigation and adherence to legal standards, ensuring that their actions do not infringe upon the rights of individuals or compromise the integrity of legal proceedings (Andrews, 2023).
In the subsequent sections, the essay will explore how these legal concepts apply to private forensic investigators and strategies to mitigate risks associated with them, accompanied by an analysis of relevant case law to illustrate their real-world implications.
Malicious Prosecution
Malicious prosecution refers to the institution of legal proceedings without probable cause, with malicious intent, and without a reasonable belief in the accused's guilt. While this tort
is commonly associated with public prosecutors, private investigators can also face allegations of
malicious prosecution if they initiate legal actions against individuals without proper justification. For a malicious prosecution, a plaintiff must prove that the prosecution was (1) initiated by the defendant, (2) terminated in favour of the plaintiff, (3) undertaken without reasonable and probable cause, and (4) motivated by malice or a primary purpose other than that of carrying the law into effect (Spiro, 2018).
For private investigators, malicious prosecution can arise when they engage in legal actions against individuals without sufficient evidence or proper justification (Malicious Prosecution, n.d.). This can lead to severe legal and reputational consequences for the investigator and their employer. For instance, imagine a scenario where a private investigator hired by a company to investigate internal theft without sufficient evidence accuses an individual
of embezzlement based on hasty conclusions drawn from incomplete forensic analysis. Suppose the accused is subsequently cleared of any wrongdoing and can demonstrate that the investigator acted with malice or without probable cause. In this case, they may have grounds to pursue a claim for malicious prosecution against the private investigator. This can result in significant legal and reputational consequences for the investigator and their employer, highlighting the importance of conducting thorough and ethical investigations to avoid such claims.
To protect themselves from allegations of malicious prosecution, private investigators must adhere to strigent ethical standards and procedural guidelines (Confidentiality: The Cornerstone of Private Investigation, 2023). Private investigators should prioritize comprehensive and meticulous investigative practices, given the potential legal ramifications. This entails
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conducting thorough investigations, gathering substantial evidence before making accusations, and ensuring transparency. Moreover, private investigators must exercise caution when drawing conclusions or making accusations, ensuring sufficient evidence to support their claims before proceeding with legal action (Criminal Defense Private Investigator Protecting Your Rights, 2023). Additionally, maintaining detailed records of the investigative process can serve as crucial
evidence in defending against potential malicious prosecution claims. These records should include documentation of all evidence collected, interviews conducted, and any other pertinent information related to the investigation (The Importance of Ethics in Our Private Investigations, n.d.). By maintaining thorough and accurate records, private investigators can demonstrate the integrity and professionalism of their investigative practices, thereby mitigating the risk of malicious prosecution claims.
Negligent Investigation
Negligent investigation, on the other hand, arises when a private investigator fails to exercise reasonable care and diligence in conducting their inquiries, leading to harm or damages to the involved parties. Negligent investigation encompasses negligent acts, such as inadequate evidence collection, reliance on faulty methodologies, or overlooking critical information (Crown and Government Liability – Negligent Investigation, n.d.). This tort is particularly relevant to private investigators; as mentioned, they often operate without the same level of oversight as public law enforcement agencies, making it crucial to uphold high standards of professionalism and competence in their work (Andrews, 2023). For example, suppose a private investigator fails to properly document chain of custody procedures while handling forensic evidence, resulting in contamination or loss of crucial material. If this negligence compromises
the investigation's integrity and leads to wrongful accusations or miscarriage of justice, the investigator may be liable for negligent investigation (D'Anna et al., 2023). In such cases, the private investigator's failure to adhere to established protocols and procedures can have far-
reaching consequences, highlighting the importance of diligence and attention to detail in forensic investigations.
To mitigate the risk of negligent investigation claims, private forensic investigators should prioritize ongoing training and education to stay abreast of industry best practices and emerging methodologies. This includes staying informed about advancements in forensic technology and techniques and participating in professional development opportunities to enhance their skills and knowledge. Additionally, implementing robust quality assurance measures, such as peer review processes and adherence to professional standards, can help ensure the integrity and reliability of investigative procedures. By implementing these measures, private investigators can demonstrate their commitment to conducting thorough and ethical investigations, thereby reducing the likelihood of negligent investigation claims and safeguarding the interests of all parties involved (D'Anna et al., 2023).
Recent Case Law
Recent court cases have illuminated the legal implications of both malicious prosecution and negligent investigation, particularly within private forensic investigations, setting significant precedents for future legal proceedings. In Hill v Hamilton-Wentworth Regional Police Services Board, the Supreme Court of Canada (SCC) deliberated on the tort of negligent investigation, concluding it was not applicable in the case's specific circumstances. This case primarily concerned negligent investigation, as the plaintiff, Jason George Hill, alleged wrongful
conviction due to police negligence during a robbery investigation. He contended that issues such as problematic identification evidence and the conduct of a photo lineup contributed to his unjust arrest and subsequent conviction. Chief Justice McLachlin underscored the weighty interests at stake, including the liberty and reputation of individuals under police scrutiny, while recognizing a duty of care owed to suspects by law enforcement. The SCC acknowledged the existence of this duty; however, it found no breach in this instance about the case. This ruling highlights the SCC's acknowledgment of negligent investigation as a legal concept, signalling a potential shift in its approach to expanding negligence law (Miazga v. Kvello Estate, 2009). Furthermore, it outlines the importance of addressing police conduct contributing to wrongful convictions. Ultimately, the acknowledgment of this tort as a valid legal concept by the Supreme Court of Canada sets the stage for increased scrutiny of law enforcement practices and the imposition of higher standards of care in future cases. It underscores the evolving understanding of accountability within the legal system and may prompt legislative or procedural reforms to address instances of police misconduct or negligence better (Chamberlain, 2008).
In another seminal case, Nelles v. Ontario, the legal landscape concerning malicious prosecution underwent significant examination. Dr. Nelles, a psychiatrist, found himself entangled in a lawsuit against the Crown, alleging malicious prosecution in connection with charges of murder relating to a patient's death at the Oak Ridge facility in Ontario. Dr. Nelles argued that the Crown had initiated the prosecution without reasonable and probable cause, leading to considerable harm and distress. The Supreme Court of Canada's ruling in Nelles v. Ontario clarified the conditions under which Crown prosecutors could be held liable for malicious prosecution. The court established a two-part test, affirming that prosecutors could be liable if they acted maliciously and lacked reasonable and probable cause for the prosecution.
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The case resulted in the Supreme Court of Canada favoured Dr. Nelles. The court ruled that the Crown prosecutors had initiated the prosecution without reasonable and probable cause, and they
acted maliciously. As a result, the court held the Crown liable for malicious prosecution, affirming the importance of upholding justice principles and ensuring accountability within the legal system. Future cases involving allegations of malicious prosecution will likely be scrutinized against the criteria outlined in Nelles v. Ontario, with courts expecting prosecutors to demonstrate both the absence of reasonable and probable cause and the presence of malicious intent. This heightened scrutiny protects individuals from wrongful convictions and unjust legal actions while reinforcing public trust in the integrity of the legal process. (Butt, 1994).
Conclusion
In conclusion, the torts of malicious prosecution and negligent investigation play a critical role in regulating the conduct of private forensic investigators and ensuring accountability within the legal system. Recent case law, such as Hill v. Hamilton-Wentworth Police Services Board and Nelles v. Ontario, has clarified the standards and criteria under which these torts can be applied, setting significant precedents for future legal proceedings. As private forensic investigations evolve, investigators must uphold ethical standards, exercise diligence, and adhere to procedural guidelines to mitigate the risks associated with these torts. By doing so, private investigators can contribute to preserving justice and integrity within the field of forensic investigations while safeguarding the rights of all parties involved.
References
Andrews, L. (2023, November 27). Private Security vs. Public Law Enforcement the Differences and Synergies
. AGS Protect. https://www.agsprotect.com/blog/private-security-vs.-
public-law-enforcement-the-differences-and-synergies \
Butt, D. (1994). Malicious prosecution. non-judicial character of administrative proceedings is not a bar to subsequent action for malicious prosecution. CanLii
, 29
(2). Chamberlain, E. (2008). Negligent investigation: A new remedy for the wrongly accused: Hill v. Hamilton-Wentworth Regional Police Services Board. Alberta Law Review
. https://doi.org/10.29173/alr316 Confidentiality: The cornerstone of private investigation
. Advantage Investigators. (2023, June 9). https://advantageinvestigators.com/confidentiality-the-cornerstone-of-private-
investigation/ Criminal Defense Private Investigator: Protecting Your Rights. (2023, December 20). Private Consulting Network. Retrieved February 7, 2024, from
https://privin.net/criminal-
defense-private-investigator-protecting-your-rights/#:~:text=A%20criminal%20defense
%20private%20investigator%20must%20ensure%20that,of%20evidence%20is
%20lawful%20and%20admissible%20in%20court
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Crown and government liability - Negligent investigation. (n.d.). Simon’s Megalomaniacal Legal
Resources. Retrieved February 7, 2024, from http://www.isthatlegal.ca/index.php?
name=crown-liability.negligent-investigation
D’Anna, T., Puntarello, M., Cannella, G., Scalzo, G., Buscemi, R., Zerbo, S., & Argo, A. (2023).
The Chain of Custody in the Era of Modern Forensics: From the Classic Procedures for Gathering Evidence to the New Challenges Related to Digital Data. National Library of Medicine, 11(5), 634.
https://doi.org/10.3390/healthcare11050634
Malicious Prosecution
. DK Legal Practice. (n.d.). https://dklegalpractice.ca/EN/small-claims/types-of-cases/tortious-conduct/malicious-
prosecution
Mazzuca, E., Nash, K., & Szymanski, R. (2010, May 5). Malicious Prosecution and Negligent Investigation: Where Are We? Toronto; Blaney McMurtry Barristers and Solicitors.
Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 SCR 339. https://canlii.ca/t/26g27
Spiro, P. (2018, March 30). Finding the Malice in Malicious Prosecution: Samaroo v Canada Revenue Agency
. CanLII. https://canliiconnects.org/en/commentaries/55023#:~:text=
%5B3%5D%20To%20succeed%20in%20an,of%20carrying%20the%20law%20into
The Importance of Ethics in Our Private Investigations
. (n.d.). Haywood Hunt & Associates Inc.
Retrieved February 7, 2024, from The Importance of Ethics in Our Private Investigations - Haywood Hunt & Associates Inc.
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