Dix V. Canada (Attorney General) et Al.: Reasonable Grounds and Officer Responsibility for Thorough and Lawful Investigations

Article excerpt

On October 1, 1994 the Royal Canadian Mounted Police (RCMP) Sherwood Park detachment was notified that the bodies of two men had been found at the premises of a paper recycling company, located just outside Edmonton city limits. Although the initial reported cause of death was electrocution, it was soon determined that the men had died from multiple gunshot wounds to the head. Both had been shot three times, above the hairline, in execution style slayings. Upon receipt of the autopsy findings, the RCMP launched an extensive major crimes investigation. The investigation proceeded for over thirteen months up to, and following, the charging of Jason Dix on July 11, 1996.

Dix was charged with two counts of first degree murder and spent 23 months in pre-trial custody prior to the abandonment of the prosecution halfway through trial. Soon after his arrest, Dix was interrogated for 11 hours even though the accused asserted his right to silence on approximately 200 occasions. The continuance of the interrogation after these assertions by Dix was subsequently found at the civil trial to be a violation of Charter rights and indirect evidence of malice--a conclusion which, when joined with other damaging testimony, served to attract the considerable liability that followed.

Throughout the 23 months that Dix was in custody, an array of investigative measures were employed including: systematic interviews, polygraphs, surveillance, wiretaps, and various undercover operations. The first of these undercover operations, later identified as "Kabaya", was implemented in 1994 and involved approximately 50 police officers and operatives. Operation "Kabaya" involved a scenario where Dix was introduced to an undercover operative who claimed to be a member of a gang engaged in money laundering and other criminal activity. During the operation Dix was flown to Toronto to meet various gang members including a "Mr. Big", who was said to be the gang leader. After entertaining Dix for the better part of an evening, an attempt was made by "Mr. Big" to elicit a confession. This attempt proved unsuccessful however as Dix denied any involvement in the killings. As such, a second scenario was initiated and involved a staged homicide at Yakk, British Columbia, in which an operative fired a sawed-off shotgun to ostensibly kill a second operative over a disputed drug transaction. This enactment, later described as the "Whack at Yakk", was also unsuccessful as a measure to draw Dix into making an incriminating statement. The use of these operational activities are an important aspect of this case as they became something of a focus at the civil trial when Dix claimed they were so invasive of his privacy that they constituted Charter violations and malice.

Notwithstanding the relative lack of evidence gained through the above operations, by July 10, 1996 the investigative team was satisfied that they had reasonable cause to charge Dix. In total, 14 aspects of what were considered to be pieces of incriminating evidence had been identified, including: motive, opportunity, and access to the suspected murder weapon. In addition to the above evidence however, the investigation team also unearthed information that might have provided Dix with a legitimate alibi with regard to the killings. This information was ultimately discounted by the investigators in favour of the theory that Dix was the perpetrator. This discounting was subsequently determined at the civil trial to be a significant failure on the part of the police in their determination that reasonable and probable cause existed to lay charges. The unearthed alibi information was also used against the police as a weapon in the civil action due to the fact that a full and complete disclosure of that evidence was not made to the accused prior to the criminal trial.

Upon his acquittal on the murder charges, Dix sued six RCMP officers and an Alberta Crown attorney for malicious prosecution. …