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. Ontario (Attorney General) v. Clark

In Ontario (Attorney General) v. Clark (SCC, 2021) the Supreme Court of Canada maintains prosecutorial immunity in a unique case where several Toronto police officers sued the Ontario Crown for 'misfeasance in public office' (negligence was dismissed in a lower court). The court essentially denied the possibility of Crown Attorney liability for the reason that it would give the police such influence in prosecutorial discretion, and all the bias that would create in criminal cases down the road:
[40] The question before us, then, in light of the accused-centered policy thread woven through the authorities, is whether we should further encroach on prosecutorial immunity to allow police officers to sue the Crown in misfeasance for decisions prosecutors make in the course of criminal proceedings. In my view, allowing police officers to initiate such causes of action 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.

[41] One of the critical dimensions of a prosecutor’s independence that is protected by immunity is, in fact, independence from the police. The police role is to investigate crime. The Crown prosecutor’s role, on the other hand, 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. Police and Crown prosecutors are expected to “act according to their distinct roles in the process, investigating allegations of criminal behaviour, and assessing the public interest in prosecuting, respectively” (Regan, at para. 87; see also Smith, at para. 72).

[42] In Regan, this Court emphasized the importance to the administration of justice of prosecutorial independence from the police. The issue in Regan concerned prosecutorial involvement in the pre-charge stage of an investigation. Ultimately, LeBel J. held for the majority that Crown involvement in pre-charge interviews did not constitute a per se abuse of process. He observed, however, that the “need for a separation between police and Crown functions has been reiterated in reports inquiring into miscarriages of justice which have sent innocent men to jail” (para. 66).

[43] Most pertinently, he concluded that “Crown objectivity and the separation of Crown from police functions are elements of the judicial process which must be safeguarded” (para. 70). This sentiment was echoed by Binnie J., when he said:
. . . Crown prosecutors must retain objectivity in their review of charges laid by the police, or their pre-charge involvement, and retain both the substance and appearance of even-handed independence from the police investigative role. This is the Crown Attorney’s “Minister of Justice” function and its high standards are amply supported in the cases. . . . [para. 137, dissenting on other grounds]
[44] The importance of prosecutorial objectivity in the review of charges laid by the police is driven by the fact that “prosecutors provide the initial checks and balances to the power of the police”. They act as a “buffer between the police and the citizen” in deciding how to proceed once a charge has been laid (paras. 159-60, per Binnie J.). Independent prosecutorial review of the police’s investigative process and decisions helps “ensure that both investigations and prosecutions are conducted more thoroughly, and thus more fairly” (para. 160, per Binnie J., quoting the Martin Report, at p. 39).

[45] In R. v. Beaudry, 2007 SCC 5 (CanLII), [2007] 1 S.C.R. 190, the Court made it clear that prosecutorial independence from police is not a one way street. The police “have a particular role to play in the criminal justice system . . . and it is important that they remain independent of the executive branch”. Accordingly, the relationship between prosecutors and the police is not a “hierarchical” one. In discharging their respective duties, both the police and the prosecutor have a “discretion that must be exercised independently of any outside influence” (para. 48). Cooperation is encouraged, but independence is mandatory.

[46] In Smith, Tulloch J.A. characterized the relationship between the prosecutor and the police as one of “mutual independence”, which “provides a safeguard against the misuse of both investigative and prosecutorial powers and can ensure that both investigations and prosecutions are conducted more thoroughly and fairly” (para. 86, citing the Martin Report, at p. 39).

[47] Making prosecutors liable to police officers for misfeasance is fundamentally incompatible with this “mutually independent” relationship. Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. To use misfeasance to get around this reality would be to permit a police officer to take a prosecutor to court to challenge the prosecutor’s compliance with his or her public duties (Odhavji, at para. 29). Such a relationship of legal accountability between the prosecutor and the police is irreconcilable with their critically “separate and distinct” roles (Smith, at para. 65).

[48] The problem is not merely theoretical. As previously noted, the courts’ increased willingness to take a more active role in scrutinizing decisions of the Attorney General and its agents, including through the exceptions to prosecutorial immunity, has been driven by the realization that failing to provide appropriate checks and balances on Crown conduct, including the relationship with the police, can lead to gross injustices, including wrongful convictions.

[49] We have seen deplorable examples of injustice when the roles are integrated. The Report of the Royal Commission on the Donald Marshall Jr. Prosecution concluded that a distinct boundary between the function of the police and the Crown is essential to the proper administration of justice (Regan, at para. 66, citing Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1, Findings and Recommendations (1989), at p. 232). And in the 1998 Report of the Commission on Proceedings Involving Guy Paul Morin, the Commissioner concluded that the Crown’s failure to maintain objectivity throughout the process, which contributed to Morin’s wrongful conviction, was caused in part by too close contact with the police:
The prosecutors showed little or no introspection about these contaminating influences upon witnesses for two reasons: one, the evidence favoured the prosecution; this coloured their objectivity; two, their relationship with the police which, at times, blinded them, and prevented them from objectively and accurately assessing the reliability of the police officers who testified for the prosecution.

(The Commission on Proceedings Involving Guy Paul Morin: Report (1998), vol. 2, at p. 911, cited in Regan, at para. 69.)
[50] This reality was reinforced by the Court of Appeal in this case in its duty of care analysis rejecting the officers’ negligence claim. The court recognized that imposing a duty of care on Crown prosecutors toward investigating police officers could interfere with the prosecutors’ ability to act independently of police interests. It would “encourage Crown attorneys to focus on extraneous factors during the course of a prosecution” and “have a deleterious effect on the administration of justice by undermining the public’s faith in the integrity of independent Crown decision-making” (paras. 87-88).

[51] It would “tend to distort principled decision-making”, which the court explained as follows:
The decision of Crown attorneys to initiate, continue, or terminate a prosecution should be based on whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest. The possibility of civil claims by the police would distort these venerable twin duties. It would have a deleterious effect on the administration of justice by undermining the public’s faith in the integrity of independent Crown decision-making. Moreover, exposing Crown attorneys to negligence claims by the police may result in prolonged court proceedings in which Crown attorneys make untenable prosecutorial decisions on Charter motions for fear of being sued. It would encourage the litigation of collateral issues, which does not sit well with the realities of finite criminal justice resources and the pressures of firm constitutional time constraints. [citation omitted; para. 88]
[52] The motions judge similarly recognized the risks to the prosecutors’ integrity and independence if they were exposed to negligence claims from police officers:
An expansion of the responsibilities of Crown Attorneys to include such a duty could result in cases proceeding to trial merely to resolve the concerns of the police. It would alter what should be a co-operative relationship between the police and Crown Attorneys into a potentially adversarial one, in which police would become not just investigators and witnesses, but also litigants with a stake in the outcome, as well as potential claimants against the Crown Attorneys. The potential for conflict and disruption to the relationship is apparent. [para. 135]
[53] These policy concerns are no less critical when considering whether prosecutorial immunity should yield to misfeasance claims against a prosecutor by investigating police officers. Being 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.


[56] Beyond the risk of actual conflict between the prosecutors’ core duties and their risk of liability to the police, the appearance of such a conflict would be equally damaging to the integrity of the administration of justice. As the joint interveners the Canadian Association of Crown Counsel and the Ontario Crown Attorneys’ Association put it, 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.

[57] This stands in stark contrast to the public interest in making prosecutors accountable for malicious prosecution, such as in Nelles, where Lamer J. recognized that public confidence in the system would be damaged if a prosecutor, “in a position of knowledge in respect of the constitutional and legal impact of his conduct”, were shielded from liability to the accused when he “abuses the process through a malicious prosecution” (p. 195). Here, the public interest argues against, not in favour of piercing prosecutorial immunity.

[58] Claims brought by the police against prosecutors risk not only the independence and objectivity of the prosecutor, but the accused person’s fair trial rights. Those obligations to the accused are jeopardized by accountability to the police whose interests are adverse to those of the accused. As Moldaver J. noted in Henry:
The public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown’s role as a quasi-judicial officer. [para. 73]
[59] The police certainly 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 the police and prosecutors and is inconsistent with the Crown’s core public duties to the administration of justice and to the accused.

[60] The same holds true for third parties in general. Liability to third parties can be expected to raise the “chilling” concerns for prosecutors and distracting them from their public duty to promote the administration of justice. On the other hand, as previously noted, our immunity cases have recognized the particular need for remedies to protect accused persons, a concern that is lessened for third parties. In almost all cases of third-party claimants, the balance of these factors will tilt toward immunity.

[61] Piercing the immunity of Crown prosecutors to make them accountable to police officers puts them 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. Since prosecutorial immunity is preserved in these circumstances, it is “plain and obvious” that the officers’ misfeasance claim would not succeed.
. Potter v. Office of The Independent Police Review Director

In Potter v. Office of The Independent Police Review Director (Div Ct, 2021) the Divisional Court succinctly stated the essence of the OIPRD statutory complaint process:
The Legislative Context

[3] The role of the OIPRD is to receive and manage all public complaints about police misconduct in Ontario. Pursuant to s. 59 of the Police Services Act, R.S.O. 1990, c. P. 15 (the “PSA”), members of the public may make a complaint to the OIPRD about the policies or services provided by a police force or the conduct of a police officer. When a complaint is received, the staff review it to determine whether the complaint should be referred for investigation.

[4] There is a presumption that a complaint will be screened in unless it is screened out in accordance with the criteria found in s. 60 of the PSA. For example, a complaint may be screened out if it is brought more than six months after the facts on which it is based occurred (s. 60(2)). For purposes of the present application, s. 60(4) is important. It states:
The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:
1. The complaint is frivolous or vexatious or made in bad faith.

2. The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law.

3. Having regard to all the circumstances, dealing with the complaint is not in the public interest.
[5] Rule 6 of the OIPRD’s Rules of Practice also sets out criteria to be applied in the screening process. In accordance with Rule 6.1, the Director must first determine whether the complaint relates to the conduct of a police officer or to the services or policies of a police service. In accordance with Rule 6.2, the Director has the discretion to request further information:
6.2 When more information is required to screen the complaint or assign it for investigation, the OIPRD will request such other information as required from either the complainant or the police service. The police liaison officer may be required to supply the OIPRD with information to assist in screening or assigning the complaint for investigation.
[6] Rule 6.4 deals with the concept of the “public interest”, setting out factors that may be considered:
6.4 In determining whether or not to deal with a complaint, the Director will have regard to the public interest. Public interest will always involve a balancing of interests and a broad range of considerations. Some of the factors which the Director may consider will include:
(i) the effect of a decision to deal or not to deal with a complaint on public confidence in the accountability and integrity of the complaints system

(ii) the number of complainants involved

(iii) the seriousness of the complaint, including the seriousness of the harm alleged

(iv) whether the complaint relates to an incident or event that has already been the subject of an earlier complaint

(v) whether there are issues of systemic importance or broader public interest at stake

(vi) the likelihood of interfering with or compromising other proceedings

(vii) whether another venue, body or law can more appropriately address the substance of the complaint.
[7] Finally, Rule 6.5 states that “It is not in the public interest to screen in a complaint that does not, on its face, disclose a breach of the Act or the Code of Conduct.”
. Stanley v. Office of the Independent Police Review Director

In Stanley v. Office of the Independent Police Review Director (Ont CA, 2020) the Court of Appeal explains in part the role of the Office of the Independent Police Review Director (OIPRD):
[35] In order to explain my conclusions, it is necessary to outline the legislative framework within which the OIRPD operates. The procedure for addressing police complaints is complex. This summary, which is not comprehensive, highlights the difference between the powers of the OIPRD to refer cases to a chief of police for investigation and the power to refer a case for a hearing.

[36] The OIPRD is an arms-length agency of the Ministery of the Attorney General. It derives its authority from Parts II.1 and V of the PSA. As stated in its Annual Report (April 1, 2018 to March 31, 2019), at p. 7: “The OIPRD ensures that public complaints about police are effectively dealt with in a manner that is transparent and fair to both the public and the police. All decisions are independent of the government, the police and the public.”

[37] In general, any member of the public may make a complaint to the OIPRD under the PSA about the policies of, or the services provided by, a police force, or the conduct of one of its officers (ss. 58(1), (2)). The Director shall review every complaint it receives (s. 59). A complaint is presumptively “screened in” (meaning that it will be investigated), unless the Director exercises his legislative discretion to “screen out” the complaint (meaning that it will not be investigated) (s. 60). This may occur, for example, when the Director determines that the complaint is vexatious (s. 60(4)). Therefore, the presumption is that complaints are “screened in”.

[38] This initial screening power has been interpreted to be a statutory power of decision within the meaning of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1: see Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149, at para. 28.

[39] In Wall v. Office of the Independent Police Review Director, 2014 ONCA 884, 123 O.R. (3d) 574, at paras. 33-36, the Director decided not to consider a complaint that had been made six months after the alleged incident. He relied upon s. 60(2), which provides that the Director “may decide not to deal with a complaint by a member of the public if the complaint is made more than six months after the facts on which it is based.” The Divisional Court held that the Director erred in treating s. 60(2) as a limitation period, failing to apply the discoverability principle, and failing to give adequate reasons: Wall v. Independent Police Review Director, 2013 ONSC 3312, 362 D.L.R. (4th) 687 (Div. Ct.).

[40] In dismissing the Director’s appeal, this court described the Director’s discretion under s. 60 as a “screening” function: Wall (ONCA), at para. 62. Writing for the court in Wall (ONCA), Blair J.A. observed, at para. 45, that this function involves the exercise of “a discretion to be exercised within the confines of the factors set out in s. 60(3) and the bounds of procedural fairness”: see also paras. 28, 49, 60.

[41] If a complaint remains “screened in”, s. 59(2) requires the Director to ensure that every complaint reviewed under s. 59(1) is “referred or retained and dealt with in accordance with section 61”. Section 61 gives the Director three options:
(a) refer the complaint to be investigated by the chief of police of the officer’s force (s. 61(5)(a));

(b) refer the complaint to be investigated by the chief of police of another force (s. 61(5)(b)); or

(c) retain the complaint to be investigated by the OIPRD (s. 61(5)(c)).
Where the OIPRD retains the complaint for investigation and finds it to be substantiated, it must refer the matter under s. 68(3) to the chief of police for a hearing. That is what happened in this case – the Director originally found the Stanleys’ complaint to be substantiated and made a hearing referral.

[42] Thus, it can be seen that there are two types of referral: investigation referral under ss. 61(5)(a), (b), and hearing referral under s. 68(3).

[43] At the conclusion of an investigation, the decision-maker (be it the Director or a chief of police) must report on the investigation in writing and provide reasons explaining whether there are reasonable grounds to believe misconduct occurred (ss. 66(1)-(3) (chief of police); ss. 68(1)-(4) (OIPRD)).

[44] The decision-maker must then determine whether the misconduct is “serious”. Misconduct that is determined to be “not of a serious nature” may be dealt with by informal resolution, or discipline without a hearing, with the consent of the complainant and the officer (ss. 66(4)-(7) (chief of police); ss. 68(4)-(7) (OIPRD)). Importantly, with all “serious” misconduct findings, a hearing must be held to determine whether the officer committed the misconduct alleged.


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