Introduction
The question at the heart of this article is whether the appropriate standard of care in negligence related to the maintenance and use of police databases by law enforcement and other related agencies should be interpreted in light of the Charter value of equality. In the authors’ view, the standard of care in negligence cases against law enforcement has been a relatively low bar and has been informed by law enforcement policies. The authors take the position this is true of cases involving police databases as well.
Recently, the Supreme Court of Canada and the Ontario Court of Appeal have recognized that the over-policing of minorities violates the equality guarantees in s. 15 of the Charter. In the authors’ view, the data stored in police databases reflects the reality of this discriminatory over-policing. Put differently, the authors take the position that over-policing results in the over-representation of racial minorities in police databases. Given the underlying constitutional violations associated with over-policing, it is the authors’ position that cases involving the negligent maintenance or use of such databases engage the Charter value of equality.
Charter rights are conceptually distinct from Charter values, but Charter values nevertheless underpin each Charter right and give it meaning. Charter values can apply even where a Charter right is not engaged. Tort law has long been developed in light of Charter values. In the authors’ view, the tort of negligence should be similarly developed. Specifically, when formulating and applying the standard of care in relation to the maintenance and use of police databases, courts should appropriately scrutinize existing policies and procedures, including any discriminatory impact of seemingly neutral policies.