Ontario (Attorney General) v. Clark

Ontario (Attorney General) v. Clark
Collection
Supreme Court Judgments
Date
2021-04-30
Neutral citation
2021 SCC 18
Report
[2021] 1 SCR 607
Case number
38687
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Ontario
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Ontario (Attorney General) v. Clark, 2021 SCC 18, [2021] 1 S.C.R. 607
Appeal Heard: October 15, 2020 Judgment Rendered: April 30, 2021 Docket: 38687
Between: Attorney General of Ontario Appellant
and
Jamie Clark, Donald Belanger and Steven Watts Respondents
- and -
Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Toronto Police Chief James Ramer, Canadian Association of Chiefs of Police, Canadian Association of Crown Counsel and Ontario Crown Attorneys’ Association Interveners
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 62)
Abella J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. concurring)
Dissenting Reasons: (paras. 63 to 173)
Côté J.
Attorney General of Ontario Appellant
v.
Jamie Clark,
Donald Belanger and
Steven Watts Respondents
and
Attorney General of New Brunswick,
Attorney General of Manitoba,
Attorney General of British Columbia,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Toronto Police Chief James Ramer,
Canadian Association of Chiefs of Police,
Canadian Association of Crown Counsel and
Ontario Crown Attorneys’ Association Interveners
Indexed as: Ontario (Attorney General) v. Clark
2021 SCC 18
File No.: 38687.
2020: October 15; 2021: April 30.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for ontario
Crown law — Prosecutorial immunity — Misfeasance in public office — Police officers commencing misfeasance claim against Attorney General on basis of Crown prosecutors’ failure in conduct of criminal trials to challenge accused’s claims of assault by police officers during arrest — Officers alleging that they suffered reputational harm and seeking damages — Whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors for decisions made in exercise of public duties — Whether claim should be struck.
In June 2009, three officers with the Toronto Police Service arrested M and S in connection with a complaint of armed robbery and forcible confinement. Both men were charged and committed to stand trial. Prior to trial, M brought an application to stay the proceedings against him and to exclude the evidence of a confession he made on the day of the arrest based on his claim that the police beat him during the arrest and caused him a serious rib injury. The Assistant Crown Attorney and a senior Crown Attorney agreed that M’s confession would not be admissible, and the charges against M were stayed. The jury trial against S proceeded and he was convicted. After his conviction, S filed a stay application alleging that the officers assaulted him and M during their arrest. M and S both testified on the stay application. The Assistant Crown Attorney did not call the officers to give evidence and conceded that the assaults occurred. The judge accepted the evidence and reduced S’s sentence. Her reasons described the assaults in detail and described the officers’ conduct as “police brutality”. Those findings were reported in the media. The Special Investigations Unit (“SIU”) and the Toronto Police Service Professional Standards Unit (“PSU”) then conducted reviews of the allegations of misconduct against the officers. The SIU discontinued its proceedings when M declined to participate; the PSU concluded that the alleged misconduct could not be substantiated.
S appealed the decision not to stay the proceedings. The Court of Appeal allowed S’s appeal and entered a stay of proceedings, noting that the appeal Crown did not contest the evidence of the assaults. It strongly criticized the officers’ conduct. Its findings were reported in the media. After the appeal, the SIU reopened its investigation and concluded that M’s rib injury post‑dated the arrest and that the allegations against the police were not substantiated by the evidence. An Ontario Provincial Police review concluded that the PSU investigation was thorough and that there was no reason to refute its conclusions.
The officers sued the Attorney General for negligence and misfeasance committed by the Assistant Crown Attorney, the senior Crown Attorney and the appeal Crown Attorney. They sought general damages for negligence and misfeasance, plus aggravated, exemplary and punitive damages. They claimed to have suffered irreparable harm to their reputations and credibility. The Attorney General moved to strike the claim for failing to disclose a cause of action. The motions judge struck the negligence claim but allowed the misfeasance claim to proceed, and this decision was upheld on appeal. Only the decision as to the misfeasance claim is appealed to the Court.
Held (Côté J. dissenting): The appeal should be allowed and the misfeasance claim struck.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution, and misfeasance cannot be used to get around this reality. Piercing the immunity of Crown prosecutors to make them accountable to police officers would put Crown prosecutors in perpetual potential conflict with their transcendent public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice. This means that the officers’ misfeasance claim would not succeed.
Prosecutorial immunity advances the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi‑judicial roles as ministers of justice. The principles underlying immunity are the prosecutor’s constitutionally protected independence, the risks to objective decision-making, and a concern about diverting prosecutors from their public interest duties. The jurisprudence has recognized that exposing prosecutors to civil liability may create a chilling effect, encouraging decision‑making motivated by a desire to ward off the spectre of liability and obfuscating the prosecutor’s core duties to act objectively and independently in the interests of the integrity of the system and the rights of the accused.
The need to safeguard and vindicate the rights of the accused, who is uniquely vulnerable to the misuse of prosecutorial power, is crucial. Allowing police officers to sue the Crown in misfeasance for decisions prosecutors make in the course of criminal proceedings would raise profound risks to the rights of the accused and to prosecutorial independence and objectivity, and it would undermine the integrity of the criminal justice system. It would also be fundamentally incompatible with the mutually independent relationship between the police and the prosecutor: the police’s role is to investigate crime; the Crown prosecutor’s role is to assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to the administration of justice and the accused.
For prosecutors to be at risk of civil liability for reputational harm to police officers means considering irrelevant considerations and risking independence and objectivity, the core of the prosecutor’s role. Police suing prosecutors for decisions they make in the course of a criminal prosecution is a recipe for putting prosecutors in conflict with their duty to protect the integrity of the process and the rights of the accused. Beyond the risk of actual conflict, the appearance of such a conflict would be equally damaging to the integrity of the administration of justice. Permitting police lawsuits against Crown prosecutors would suggest to the public and to accused persons that police were policing prosecutions through the use of private law, imperiling public confidence in the independent and objective ability of prosecutors to conduct fair trials. The police have a legitimate expectation and interest in their reputations not being unfairly impaired, but the solution cannot be to make prosecutors accountable to them in a way that obliterates the independence between police and prosecutors and is inconsistent with the Crown’s core public duties to the administration of justice and to the accused.
Per Côté J. (dissenting): The appeal should be dismissed. Prosecutorial immunity should not apply to claims for misfeasance in public office brought by police officers who suffered harm as a result of deliberate and unlawful conduct by prosecutors in connection with serious criminal allegations of police misconduct.
The rule of law requires equality before the law, and is incompatible with absolute immunities. The Court has recognized two exceptions to prosecutorial immunity in favour of accused persons: the torts of malicious prosecution and wrongful non‑disclosure. Although the protection of prosecutorial independence is constitutionally entrenched in s. 7 of the Charter, the scope of prosecutorial immunity is a matter of policy. Prosecutorial independence translates into two policy concerns which are meant to gauge the risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice: the risk of creating a chilling effect on the exercise of prosecutorial discretion and the risk of diverting prosecutors from their public duties. These concerns must not be invoked like a mantra to justify the application of prosecutorial immunity in every situation not falling within the exceptions recognized for the benefit of accused persons; rather, they should be considered in light of the particular liability threshold applicable to the tort at issue. A two‑step analysis should be used to decide whether prosecutorial immunity should be applied in a particular situation: the first step requires determining whether there are cogent policy reasons for piercing the immunity, and the second step requires determining whether the liability threshold for the tort at issue is high enough to tamp down the twin policy concerns and to safeguard prosecutorial independence.
With respect to the first step, four policy reasons justify not applying prosecutorial immunity in cases where police officers suffered serious damages arising from unlawful and deliberate prosecutorial misconduct: (1) the tactical nature of the decisions involved; (2) the significance of the interests at stake; (3) the lack of meaningful alternative remedies and accountability mechanisms; and (4) public confidence in the office of prosecutor and in the police.
First, the principle of prosecutorial independence does not apply to decisions pertaining to the handling of allegations of police brutality because they are, in general, tactical decisions falling outside the core of prosecutorial discretion. The principle of prosecutorial independence seeks to protect first and foremost the core of prosecutorial discretion, including decisions about the nature and extent of the prosecution (decisions to press charges, to enter a stay of proceedings, to enter into a plea bargain, to withdraw from proceedings and to take control of a private prosecution). Decisions that do not pertain to the nature and extent of the prosecution, such as tactical decisions, fall outside the scope of core prosecutorial discretion, so interfering with them does not implicate prosecutorial independence to the same extent. In any event, any conduct amounting to bad faith or malice falls outside the core and does not engage prosecutorial independence.
Second, just as the significance of the interests of accused persons may prevent the application of prosecutorial immunity, the significance of the interests at stake for the police officers weighs in favour of a conclusion that prosecutorial immunity does not apply. Findings of police brutality can have a profound impact on the officers’ dignity, professional life, reputation and mental health. Those findings could also leave the officers open to professional discipline, or to civil and criminal liability. In addition, they would make the burden of proving the reasonableness of the use of force or self‑defence in subsequent proceedings much more difficult.
Third, the available alternative remedies are unable to make the victims whole again. Disciplinary proceedings against the prosecutors before the Law Society or administrative sanctions from their employer carry little weight in comparison with prior judicial determinations of police brutality and torture made by a criminal court. Only exculpatory findings made by a civil court which had the benefit of all the evidence and did a thorough analysis can clear police officers’ names once and for all. However, this remedy is contingent on an accused person’s decision to bring a civil suit against the police; if the accused person decides not to sue the police, the officers are unable to challenge the findings of police brutality in a court of law because prosecutorial immunity deprives them of an autonomous access to the civil courts. If the immunity is displaced and the officers are able to bring their own action against the prosecutors to take issue with the mishandling of the allegations of police brutality, the officers will be in a position to actively vindicate their reputations.
Finally, not applying prosecutorial immunity in such cases reinforces public confidence in both the office of prosecutor and the police. Public confidence in the office of prosecutor is better served when prosecutors are made accountable than when they are absolved from any misconduct. Protecting prosecutors who act unlawfully in a deliberate manner erodes public confidence in the office of Crown prosecutor. Prosecutorial immunity also undermines public confidence in the police. Where police officers are unable to redress their records before another court, their damaged reputation impedes the police’s capacity to investigate and protect and hampers the prosecution of crime. It also makes them vulnerable to the defence’s attacks when they testify, weakening the Crown’s case as a result and potentially allowing some guilty accused persons to unduly avoid convictions.
With respect to the second step, the liability threshold for the tort of misfeasance in public office places the bar high enough to mitigate the twin policy concerns and to safeguard prosecutorial independence: a plaintiff must establish deliberate misconduct that demonstrates bad faith or dishonesty; inadvertent or negligent action of public officers are not enough. This high threshold must be considered in the context of the class of potential claimants and the prosecutorial activity at issue. The class of potential claimants — police officers facing allegations of serious misconduct in a criminal case — is very narrow, and the prosecutors’ conduct at issue here does not fall within the core of prosecutorial discretion. When considered in this specific context, the high threshold provided by the elements of misfeasance in public office adequately protects against a chilling effect on the exercise of prosecutorial discretion, interference with prosecutorial independence, and the diversion of prosecutors from their duties. Finally, although permitting police officers to bring misfeasance claims may result in contradictory decisions, relitigation is necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole when the first proceeding is tainted by fraud or dishonesty, when fresh, new evidence, previously unavailable, conclusively impeaches the original results, or when fairness dictates that the original result should not be binding in the new context.
In the instant case, the officers have adequately pleaded the four essential elements of misfeasance in public office. Accordingly, their misfeasance claim should be allowed to continue.
Cases Cited
By Abella J.
Considered: Nelles v. Ontario, [1989] 2 S.C.R. 170; referred to: R. v. Singh , 2012 ONSC 2028; R. v. Singh , 2012 ONSC 4429; R. v. Singh , 2013 ONCA 750, 118 O.R. (3d) 253; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Powder Mountain Resorts Ltd. v. British Columbia, 2001 BCCA 619, 94 B.C.L.R. (3d) 14; Three Rivers District Council v. Bank of England (No. 3) (2000), [2003] 2 A.C. 1; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339; Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9; Smith v. Ontario (Attorney General), 2019 ONCA 651, 147 O.R. (3d) 305; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. Power, [1994] 1 S.C.R. 601; Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190.
By Côté J. (dissenting)
Roncarelli v. Duplessis, [1959] S.C.R. 121; Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; R. v. Singh , 2012 ONSC 2028; R. v. Singh , 2012 ONSC 4429; R. v. Singh , 2013 ONCA 750, 118 O.R. (3d) 253; Nelles v. Ontario, [1989] 2 S.C.R. 170; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Day v. Woodburn, 2019 ABQB 356, 96 Alta. L.R. (6th) 302; Nelles v. The Queen in right of Ontario (1985), 51 O.R. (2d) 513; Bosada v. Pinos (1984), 44 O.R. (2d) 789; Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339; Watkins v. Secretary of State for the Home Department, [2006] UKHL 17, [2006] 2 A.C. 395; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; Three Rivers District Council v. Bank of England (No. 3), [2003] 2 A.C. 1; Alberta (Minister of Public Works, Supply & Services) v. Nilsson, 1999 ABQB 440, 246 A.R. 201, aff’d 2002 ABCA 283, 320 A.R. 88; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 7 .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 25 , 34 , 269.1(2) .
Crown Attorneys Act, R.S.O. 1990, c. C.49, ss. 6(5), 8.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.
Authors Cited
Chamberlain, Erika. Misfeasance in a Public Office. Toronto: Thomson Reuters, 2016.
Code, Michael. “Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg” (2009), 34 Queen’s L.J. 863.
Horsman, Karen, and Gareth Morley, eds. Government Liability: Law and Practice. Toronto: Thomson Reuters, 2020 (loose‑leaf updated November 2020, release 36).
Law, J. M. “A Tale of Two Immunities: Judicial and Prosecutorial Immunities in Canada” (1990), 28 Alta. L. Rev. 468.
Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1, Findings and Recommendations. Halifax, 1989.
Ontario. Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions. Toronto, 1993.
Ontario. The Commission on Proceedings Involving Guy Paul Morin: Report, vol. 2. Toronto, 1998.
Rosenberg, Marc. “The Attorney General and the Administration of Criminal Justice” (2009), 34 Queen’s L.J. 813.
Sterling, Lori, and Heather Mackay. “Constitutional Recognition of the Role of the Attorney General in Criminal Prosecutions: Krieger v. Law Society of Alberta” (2003), 20 S.C.L.R. (2d) 169.
APPEAL from a judgment of the Ontario Court of Appeal (Lauwers, Huscroft and Trotter JJ.A.), 2019 ONCA 311, 56 C.C.L.T. (4th) 1, [2019] O.J. No. 2027 (QL), 2019 CarswellOnt 5941 (WL Can.), affirming a decision of Stinson J., 2017 ONSC 3683, [2017] O.J. No. 3236 (QL), 2017 CarswellOnt 9706 (WL Can.). Appeal allowed, Côté J. dissenting.
Sunil Mathai and Ananthan Sinnadurai, for the appellant.
Lorne Honickman and Michael Lacy, for the respondents.
Patrick McGuinty, for the intervener the Attorney General of New Brunswick.
Amiram Kotler, for the intervener the Attorney General of Manitoba.
Tara Callan, for the intervener the Attorney General of British Columbia.
Michael J. Morris, for the intervener the Attorney General of Saskatchewan.
Christine Rideout, Q.C., for the intervener the Attorney General of Alberta.
Earl A. Cherniak, Q.C., for the intervener Toronto Police Chief James Ramer.
Rachel Huntsman, Q.C., for the intervener the Canadian Association of Chiefs of Police.
Paul J. J. Cavalluzzo, for the interveners the Canadian Association of Crown Counsel and the Ontario Crown Attorneys’ Association.
The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. was delivered by
[1] Abella J. — The issue in this appeal is whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors for decisions they make in the exercise of their public duties.
Background
[2] Three officers with the Toronto Police Service, Jamie Clark, Donald Belanger and Steven Watts, sued the Attorney General of Ontario for negligence and misfeasance in public office. Their claim is based on the alleged misconduct of Crown prosecutors in the way they dealt with stay applications brought by two accused persons who claimed that the police officers assaulted them during an arrest.
[3] This appeal arises from the Attorney General’s motion to strike the claim pursuant to Rule 21 of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In the proceedings leading up to this appeal, the courts struck the negligence claim but allowed the misfeasance claim to proceed. Only the misfeasance claim is before this Court.
[4] In June 2009, the officers arrested Randy Maharaj and Neil Singh in connection with a complaint of armed robbery and forcible confinement. Both men were charged and committed to stand trial.
[5] Assistant Crown Attorney Sheila Cressman was assigned carriage of the prosecutions. Prior to trial, Mr. Maharaj brought an application to stay the proceedings against him and to exclude the evidence of a confession he made on the day of the arrest based on his claim that the police beat him during the arrest and caused him a serious rib injury.
[6] Ms. Cressman consulted with a senior Crown attorney, Frank Armstrong, who agreed that Mr. Maharaj’s confession would not be admissible. The charges against Mr. Maharaj were stayed.
[7] The jury trial against Mr. Singh proceeded and he was convicted. After his conviction, Mr. Singh filed a stay application alleging that the officers assaulted him and Mr. Maharaj during their arrest. Mr. Maharaj and Mr. Singh both testified on the stay application. Ms. Cressman did not call the officers to give evidence.
[8] Ms. Cressman conceded at the stay hearing that the assaults occurred, but argued that the appropriate remedy for Mr. Singh was a reduced sentence. The judge accepted the evidence that the officers assaulted Mr. Singh and Mr. Maharaj. She did not order a stay, finding that a reduced sentence would be a more appropriate remedy. In her reasons, dated March 28, 2012, she described the assaults in detail and, in her reasons for sentence dated July 27, 2012, she described the officers’ conduct as “police brutality” (2012 ONSC 2028; 2012 ONSC 4429). Those findings were reported in the media.
[9] The Special Investigations Unit (SIU) was notified of the officers’ conduct, but Mr. Maharaj declined to participate in the SIU investigation. As a result, the SIU did not continue its proceedings. The Toronto Police Service Professional Standards Unit (PSU) then conducted its own review of the allegations of misconduct against the officers, and concluded in a report issued in October 2012, that “[b]ased on the available evidence and analysis conducted, misconduct on the part of the subject officers cannot be substantiated”.
[10] Mr. Singh appealed the decision not to stay the proceedings. The appeal was heard on October 18, 2013, after the PSU had issued its report. The judges at the hearing asked the Crown on the appeal, Amy Alyea, whether disciplinary action or criminal proceedings were initiated against the officers. The officers claim that she did not inform the court of the exculpatory PSU findings or make a fresh evidence application to put those findings before the court.
[11] The Court of Appeal allowed Mr. Singh ’s appeal and entered a stay of proceedings on December 12, 2013 (118 O.R. (3d) 253). In its reasons, the court noted that the Crown did not “contest [the evidence of the assaults] on appeal”, and strongly criticized the officers’ conduct. Its findings were reported in the media.
[12] After the appeal, the SIU reopened its investigation, interviewed Mr. Maharaj and reviewed the records. In May 2014, it concluded that the rib injury post-dated the arrest and that the allegations against the police were not substantiated by the evidence. The Ontario Provincial Police subsequently conducted its own review of the PSU investigation, concluding on April 9, 2015 that the investigation was thorough and that there was no reason to refute its conclusions.
[13] On June 22, 2016, the police officers sued the Attorney General for negligence and misfeasance committed by Ms. Cressman, Mr. Armstrong and Ms. Alyea. They sought general damages in the amount of $500,000 for negligence and misfeasance, in addition to $250,000 in aggravated, exemplary and punitive damages for each plaintiff. They claimed to have suffered irreparable harm, including “damage to their reputations and credibility among members of the judiciary, the Attorney General’s office, the criminal defence bar and the public at large”.
[14] The negligence pleading was based on Ms. Cressman, Mr. Armstrong and Ms. Alyea’s breaches of an alleged duty of care owed by Crown prosecutors to investigating police officers with respect to the conduct of a prosecution.
[15] The misfeasance pleading was based on the claim that the prosecutors’ conduct was deliberately unlawful and committed with knowledge that it would result in reputational harm to the officers. Against Ms. Cressman, the pleading stated that her unlawful conduct included her failure to properly ascertain the veracity of the assault allegations, her failure to call the police as witnesses to refute what the officers described as false and defamatory claims, and her ignoring or being wilfully blind to facts that exculpated the officers.
[16] Against Ms. Alyea, it was also claimed that she had acted for the improper purpose of protecting Ms. Cressman in not informing the Court of Appeal of the results of the PSU report, which exculpated the officers. The officers also claim that Mr. Armstrong acted unlawfully in breach of his duties, but the claim against him is not particularized.
[17] The Attorney General moved to strike the claim for failing to disclose a cause of action, arguing that the negligence and misfeasance claims were barred by prosecutorial immunity.
[18] The motions judge struck the negligence claim but allowed the misfeasance claim to proceed (2017 ONSC 3683). He found that overriding policy concerns precluded the recognition of a duty of care owed by Crown attorneys to investigating police officers. On the other hand, he found that it was not “plain and obvious” that prosecutors were immune to misfeasance claims brought by police officers.
[19] The Attorney General appealed the decision to allow the misfeasance claim to go to trial, and the officers appealed the decision to strike the negligence claim. The Court of Appeal for Ontario dismissed both appeals (2019 ONCA 311, 56 C.C.L.T. (4th) 1).
[20] The Court of Appeal agreed with the motions judge’s decision to strike the negligence claim. It found that “based on Crown immunity principles, no claim lies against the Crown in negligence, whether it be simple or gross negligence”. Citing the Supreme Court’s “steadfast” rejection of negligence-based claims against Crown attorneys even in the context of claims brought by accused persons, it concluded that there is no reason to privilege claims brought by police officers. But it allowed the misfeasance claim to go to trial, finding that Crown attorneys are not immune from civil liability for misfeasance in public office.
[21] The Attorney General appealed to this Court on the misfeasance issue. The officers did not cross-appeal the striking of the negligence claim.
Analysis
[22] The elements and proper scope of the tort of misfeasance are not disputed in this appeal. A successful misfeasance claim requires the plaintiff to establish that the public official engaged in deliberate and unlawful conduct in his or her capacity as a public official, and that the official was aware that the conduct was unlawful and likely to harm the plaintiff (Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, at para. 23, per Iacobucci J.).
[23] The unlawful conduct anchoring a misfeasance claim typically falls into one of three categories, namely an act in excess of the public official’s powers, an exercise of a power for an improper purpose, or a breach of a statutory duty (Odhavji, at para. 24). The minimum requirement of subjective awareness has been described as “subjective recklessness” or “conscious disregard” for the lawfulness of the conduct and the consequences to the plaintiff (Odhavji, at paras. 25 and 29; Powder Mountain Resorts Ltd. v. British Columbia (2001), 94 B.C.L.R. (3d) 14 (C.A.), at para. 7; Three Rivers District Council v. Bank of England (No. 3) (2000), [2003] 2 A.C. 1 (H.L.), at pp. 194-95, per Lord Steyn).
[24] In this case, the misfeasance claim consists of two key allegations. The first is against Ms. Cressman for failing to take sufficient steps to investigate and rebut the claims of police brutality made by the accused in their stay applications. The officers plead that Ms. Cressman acted in deliberate disregard of her oath of office, incorporated in s. 8 of the Crown Attorneys Act, R.S.O. 1990, c. C.49, to act “without favour or affection to any party”. The second is that Ms. Alyea, the Crown in Mr. Singh ’s appeal, failed to inform the Court of Appeal of the results of the PSU report, thereby acting for the improper purpose of protecting Ms. Cressman.
[25] This is the first opportunity this Court has had to consider prosecutorial immunity in the context of claims against the Crown brought by police officers for prosecutorial conduct in the course of a criminal proceeding. Until Nelles v. Ontario, [1989] 2 S.C.R. 170, it was generally accepted that Crown prosecutors in Canada had absolute immunity from civil liability (see Miazga v. Kvello Estate, [2009] 3 S.C.R. 339, at para. 43, per Charron J.; Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, at para. 104, per L’Heureux-Dubé J., dissenting; J. M. Law, “A Tale of Two Immunities: Judicial and Prosecutorial Immunities in Canada” (1990), 28 Alta. L. Rev. 468, at p. 505; Lori Sterling and Heather Mackay, “Constitutional Recognition of the Role of the Attorney General in Criminal Prosecutions: Krieger v. Law Society of Alberta” (2003), 20 S.C.L.R. (2d) 169, at p. 183, fn. 51).
[26] Since Nelles, our judgments on prosecutorial liability have been underscored by a careful balancing between the policy consequences of exposing prosecutors to liability, versus the need to safeguard and vindicate the rights of the accused, who is uniquely vulnerable to the misuse of prosecutorial power.
[27] To date, the rights of accused persons to a fair trial have been critical in that balancing. In Smith v. Ontario (Attorney General) (2019), 147 O.R. (3d) 305 (C.A.), Tulloch J.A. reviewed our immunity jurisprudence and aptly captured the critical considerations running through the cases — the importance of vindicating the rights of the accused, and the use of high liability thresholds to militate against the policy consequences of liability:
The strong countervailing interest of the importance of providing the subject of a prosecution with an effective remedy led the Supreme Court to establish exceptions to prosecutorial immunity . . . .
However, this powerful countervailing interest did not lead the Supreme Court to accept a negligence-based standard of liability, even for Charter breaches. [paras. 97-98]
[28] As Charron J. explained in Miazga, immunity advances “the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as ‘ministers of justice’” (para. 47). The principles underlying immunity are the prosecutor’s constitutionally protected independence, the related risks to objective decision-making and a concern about diverting prosecutors from their public interest duties.
[29] Independence has been held to be “so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched” (Miazga, at para. 46). In Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, Iacobucci and Major JJ. explained:
It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions . . . .
This side of the Attorney General’s independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process . . . .
. . . The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict. [paras. 30-32]
[30] In Miazga, Charron J. observed that “well-established public law principles relating to Crown independence and prosecutorial discretion” cannot be ignored in the context of private law prosecutorial liability (para. 5). The principle of independence is tied to the prosecutor’s obligation to make objective and fair decisions. That is why the jurisprudence has recognized that exposing prosecutors to civil liability may create a “chilling effect”, encouraging decision-making motivated by a desire to ward off the spectre of liability and obfuscating the prosecutor’s core duties to act objectively and independently in the interests of the integrity of the system and the rights of the accused.
[31] As LeBel J. explained in R. v. Regan, [2002] 1 S.C.R. 297, at para. 65, the “seminal concept of the Crown as ‘Minister of Justice’” derives from Boucher v. The Queen, [1955] S.C.R. 16, in which Rand J. said:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime . . . . The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. [pp. 23-24]
[32] This means that the responsibility of the Crown includes the obligation to act objectively, independently and fairly toward the accused. These imperatives are “not confined to the courtroom and attac[h] to the Crown Attorney in all dealings in relation to an accused” more generally (Regan, at paras. 155-56, per Binnie J., dissenting). In R. v. Cawthorne, [2016] 1 S.C.R. 983, this Court recognized that an accused person has a constitutional right, as a principle of fundamental justice under s. 7 of the Charter , to be tried by a prosecutor who acts independently of improper purposes (paras. 23-26, per McLachlin C.J.).
[33] The Attorney General and its agents are also required to act as protectors of the public interest in the discharge of their prosecutorial functions (Cawthorne, at para. 27). They act in “the interest of the community to see that justice is properly done” (R. v. Power, [1994] 1 S.C.R. 601, at p. 616, per L’Heureux-Dubé J.). Their ultimate task “is to see that the public interest is served, in so far as it can be, through the use, or non-use, of the criminal courts” (Regan, at para. 159, per Binnie J., dissenting in the result, quoting Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) (“Martin Report”), at p. 117 (emphasis deleted)).
[34] In Nelles, in the course of reviewing the common law authorities in favour of absolute immunity, Lamer J. explained that immunity “encourages public trust in the fairness and impartiality of those who act and exercise discretion in the bringing and conducting of criminal prosecution” and avoids a “chilling effect on the prosecutor’s exercise of discretion” arising from “the threat of personal liability for tortious conduct” (pp. 178-79, see also p. 199; Henry v. British Columbia (Attorney General), [2015] 2 S.C.R. 214, at paras. 71 and 73, per Moldaver J.).
[35] Nelles was also the first case from this Court to acknowledge that prosecutorial immunity was not absolute, and could not protect the Crown from claims of malicious prosecution brought by an accused. Lamer J. expanded on the importance of allowing a wrongfully and maliciously accused person to advance a cause of action. Malicious prosecution requires the plaintiff to establish that the prosecutor acted with a demonstrable improper motive or purpose and that reasonable and probable grounds were objectively lacking (pp. 192-93). Absolute immunity would deprive a falsely accused person not only of a private right of action but also of the ability to seek a remedy for unconstitutional deprivations of liberty and security of the person (pp. 195‑96). It would be a “threat to the individual rights of citizens who have been wrongly and maliciously prosecuted” (p. 199). Moreover, public confidence in the administration of justice would suffer if “the person who is in a position of knowledge in respect of the constitutional and legal impact of his conduct is shielded from civil liability when he abuses the process through a malicious prosecution” (p. 195).
[36] This Court’s subsequent decisions on malicious prosecution in Proulx and Miazga affirmed the policy considerations at play in Nelles. In Proulx, Iacobucci and Binnie JJ. stressed that:
Under our criminal justice system, prosecutors are vested with exte