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How a criminal investigation will impact a personal injury case in Ontario

Sometimes personal injury cases are investigated by the police.

Sometimes, criminal, or quasi criminal charges will be laid on the Defendant (the at fault party).

What does this mean for your personal injury case, and how will your personal injury case be impacted by these charges and the ensuing police investigation?

Good questions!

This edition of the Toronto Injury Lawyer Blog will attempt to answer those questions, and more!

Criminal and quasi criminal charges happen in all types of personal injury cases.

In drunk driving cases, people are charged with the criminal offense of impaired driving.

In distracted driving cases, or for other driving offenses, people are charged under the Highway Traffic Act.

In sexual assault cases, the offending party can be charged under the Criminal Code as well.

When charges are laid, it triggers a police investigation, regardless of the severity of those charges.

The police have strong investigatory powers in order to complete their investigation into the incident. They can issue search warrants to search property. They can seize all sorts of records (medical, cell phone, business etc.). They can summons witnesses, who tend to cooperate more with police than they would with a personal injury lawyer for a civil case. They can call people in to the police station to give a statement, or take a statement (recorded or videotaped) from the parties in order to get a better idea of what took place.

The goal of the police in their investigation is to get down to the truth of what happened. The evidence which the police gather will assist the Court in determining whether or not the accused is guilty, or not guilty. If there isn’t enough evidence there to support the charges, or there isn’t a likely prospect of conviction, the charges will be dropped (in theory).

The complete contents of the police investigation (and Crown Brief) are not immediately available to a personal injury lawyer. But, some of the basic information is available. The accident report in a personal injury case is available fairly quickly. But other information, like witness statements, officer’s notes, pictures, video etc. are not available right away. This information cannot be released because it may jeopardize the criminal investigation and the criminal case.

But, once the criminal case has closed, all of this information can be made available to your personal injury lawyer. This can take place, months, or sometimes years after the incident took place. This is troubling because it can take so long. But, at the same time, it’s also a good thing because your personal injury lawyer will be able to access the complete contents of the police file in order to hopefully bolster your case and your chances at success.

Lawyers can be reluctant to move the case forward until after all of the information from the complete unedited police file is disclosed. In some cases, insurers will be reluctant to settle a claim outside of Court, or move forward to trial, until this information is made available in the civil case.

This is why we often see civil cases in personal injury matters move slightly behind (or react) to movement in the criminal case. Plaintiffs in personal injury cases often don’t want this. They want to push the case forward to trial as quickly as possible. Insurers and Defendants want the exact opposite. Justice delayed is justice denied. Any slowdown in the case favours the Defendant. Sometimes those delays are more logical than others. Sometimes, it makes sense to wait for the file to be released. Other times, it does not. It all depends on the specific facts of the case.Brian-Goldfinger-03-200x300

Police investigations, and convictions in particular, are helpful for a Plaintiff’s claim in establishing liability (fault) against a Defendant. The conviction can be relied upon at trial to establish prima facie proof of the Defendant’s  negligence. But, if a Defendant has been charged, and not convicted, the charges cannot be relied upon at trial. This goes back to the legal presumption of “innocent until proven guilty“. Just because you are charged with an offense, does not necessarily mean that you are guilty of that offence. Nor should the charges alone serve to sway the members of the jury one way, or another. The is particularly true when the charges are built on shaky ground with limited evidentiary foundation other than a police officer’s hunch.

But, once a conviction has been entered, it’s really hard for a Defendant in a personal injury case to refute civil liability. The burden of proof in a criminal case is proof beyond a reasonable doubt that the accused committed the crime. This is a very high evidentiary burden. The standard of proof in a personal injury case is on a balance of probabilities that the Defendant was negligent/responsible for the act giving rise to the injury. This is a far lower evidentiary burden than proving something beyond a reasonable doubt. It’s really hard for a tort defendant to deny liability when there has been a criminal or quasi criminal conviction against their client. They can certainly attempt to deny it. But, by not admitted liability, or by contesting liability, they are unduly complicating and lengthening the case which will be taken into consideration by the Judge when evaluating legal costs. This may be a strategic decision to deny everything. But, there are repercussions for this sort of litigation strategy. Absorbing increased legal costs might not be of any significant consequence for large, deep pocketed insurance companies. This is simply a cost of doing business for insurers. The increased fees awarded against the insurer represents only a drop in the bucket.

The final consideration for criminal cases which veer into personal injury cases is insurance coverage. Insurance provides coverage for the insured’s negligence. However, insurance is not intended to cover criminal actions such as assault, sexual assault or another intentional action of violence or harm. There is no insurance coverage for criminal activities. So, while a Defendant might be found guilty of sexual assault, or assault causing bodily harm; this does not mean that there will be insurance coverage to pay out on the potential personal injury case. This coverage conundrum is very important because on the surface you might think that you have a very straight forward case. But behind the scenes, getting paid out on the potential judgment might be a big problem due to the coverage issue.

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