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Immunity - Crown Prosecutorial

. Ontario (Attorney General) v. Clark

In Ontario (Attorney General) v. Clark (SCC, 2021) the Supreme Court of Canada reviews the recent (since Nelles in 1989) history of prosecutorial immunity:

[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 CanLII 77 (SCC), [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 SCC 51 (CanLII), [2009] 3 S.C.R. 339, at para. 43, per Charron J.; Proulx v. Quebec (Attorney General), 2001 SCC 66 (CanLII), [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 SCC 65 (CanLII), [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 SCC 12 (CanLII), [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, 1954 CanLII 3 (SCC), [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 SCC 32 (CanLII), [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 CanLII 126 (SCC), [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 SCC 24 (CanLII), [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 extensive discretion and decision-making authority to carry out their functions. Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess a prosecutor’s judgment calls when assessing Crown liability for prosecutorial misconduct. Nelles affirmed unequivocally the public interest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances. Against these vital considerations is the principle that the Ministry of the Attorney General and its prosecutors are not above the law and must be held accountable. Individuals caught up in the justice system must be protected from abuses of power. In part, this accountability is achieved through the availability of a civil action for malicious prosecution. [citation omitted; para. 4]

[37] Charron J., in Miazga, confirmed that the test for malicious prosecution strikes a “careful balancing” between the “right of individual citizens to be free from groundless criminal prosecutions and the public interest in the effective and uninhibited prosecution of criminal wrongdoing” (para. 52). She also emphasized the importance of proving a demonstrable improper purpose or motive, which cannot be inferred from an absence of reasonable and probable grounds alone. The plaintiff must demonstrate “that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice” (para. 89). Finally, Charron J. confirmed that the inquiry into reasonable and probable grounds is purely objective. If “objective reasonable grounds did in fact exist at the relevant time, it cannot be said that the criminal process was wrongfully invoked”, regardless of the prosecutor’s subjective belief (para. 73). This serves as a basis on which meritless claims can be struck before trial (Miazga, at para. 74; Nelles, at p. 197).

[38] This Court’s most recent opportunity to consider the limits of prosecutorial immunity arose in Henry, where it affirmed that immunity could not protect a prosecutor from claims of wrongful non-disclosure by an accused. Ivan Henry had been convicted of sexual offences and imprisoned for nearly 27 years before the British Columbia Court of Appeal quashed his convictions and acquitted him of all charges. He brought a civil suit against the Attorney General for Charter damages arising from the Crown prosecutor’s failure to disclose exculpatory evidence. The importance of displacing immunity to allow for an accused to vindicate his Charter rights was uncontested, and the question turned exclusively on the threshold to be applied. Moldaver J. held that liability will be triggered when the Crown

in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence. [para. 31]

As in claims of malicious prosecution, the rights of the accused were central.

[39] As this brief history of this Court’s evolutionary approach to prosecutorial immunity demonstrates, the overriding and compelling justification for restricting immunity is based on fairness to the accused, leading to a greater willingness on the part of courts to scrutinize prosecutorial decisions affecting the rights of the accused (The Honourable Marc Rosenberg, “The Attorney General and the Administration of Criminal Justice” (2009), 34 Queen’s L.J. 813; see also Michael Code, “Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg” (2009), 34 Queen’s L.J. 863).

. Smith v. Ontario (Attorney General)

In Smith v. Ontario (Attorney General) (Ont CA, 2019) the Court of Appeal considered a negligent investigation tort case against the police and Crown Attorneys, where the police cross-claimed against the Crown for negligence in giving legal advice. Part of the case was with respect to prosecutorial immunity:

(a) The Principles of Prosecutorial Immunity

[96] Prosecutorial immunity is rooted in two policy concerns: the risk of diverting Crown counsel from their important public duties, and the risk of a chilling effect on the behaviour of prosecutors that leads to defensive lawyering: Henry, at para. 71. The diversion concern is that Crown Attorneys would spend too much of their limited time responding to civil lawsuits rather than fulfilling their duty to prosecute crime: Henry, at para. 72. The chilling effect concern is that fear of liability would lead to defensive lawyering designed to ward off liability, rather than to serve the public interest: Henry, at para. 73. These policy concerns flow from public law principles on Crown independence and prosecutorial discretion: Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339, at para. 5. These principles justify prosecutorial immunity for negligence or errors of judgment: Miazga, at paras. 80-81. In addition, they shape the high threshold for liability in an action for malicious prosecution even where prosecutorial immunity does not apply: Nelles, at p. 199; Miazga, at para. 50. Similarly, in Henry, the Supreme Court applied these policy concerns to inform the liability threshold for s. 24(1) Charter remedies against prosecutors.

[97] 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. In Nelles, the Supreme Court stressed that its concern for “the individual rights of citizens who have been wrongly and maliciously prosecuted” led it to grant an exception to immunity for malicious prosecution: Nelles, at p. 199. The policy imperative of protecting “individuals caught up in the justice system…from abuses of power” thus justified a limited exception: Proulx v. Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 S.C.R. 9, at para. 4. Similarly, in Henry, the Supreme Court stressed the need to offer an effective remedy to victims of unconstitutional conduct by Crown Attorneys in justifying lifting immunity for s. 24(1) Charter claims: Henry, at paras. 65-66.

[98] However, this powerful countervailing interest did not lead the Supreme Court to accept a negligence-based standard of liability, even for Charter breaches. Nelles explicitly excluded “errors in judgment or discretion or even professional negligence” from liability, and Miazga affirmed that liability will not be imposed even in cases of “recklessness” or “gross negligence” absent malice: Nelles, at p. 199; Miazga, at paras. 80-81. While in Henry the Supreme Court was willing to establish a lower standard than malice for s. 24(1) Charter relief, it insisted on a high threshold to limit the scope of liability and thus rejected even the gross negligence standard: Henry, at paras. 74, 92-94. The intentionality and knowledge requirements the majority in Henry imposed as preconditions for relief aimed to set a higher liability threshold than tort law negligence: at paras. 88-89.

. Abernethy v. Ontario

Here in Abernethy v. Ontario (Ont CA, 2017) the immunity of Crown Attorneys is illustrated, to all claims except that of malicious prosecution:

The Crown Defendants

[7] After properly reviewing all the relevant principles relating to the striking of pleadings, and reading the Fresh as Amended Statement of Claim as generously as he could in favour of the plaintiff, with due allowances for drafting deficiencies, the motion judge concluded that Ms. Abernethy’s claims against the Crown Defendants disclosed no reasonable cause of action and that it was plain and obvious they could not succeed. He also held – correctly in our view – that, with the exception of a claim for malicious prosecution (which Ms. Abernethy acknowledged before him and us that she was not pursuing), the Crown Attorney defendants were protected by Crown immunity under the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 8 and by common law Crown immunity; and that the remaining Crown Defendants were protected by statutory immunity under the Police Services Act, R.S.O. 1990, c. P.15, ss. 21(9) and 26.1(12).

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[12] The Crown Attorneys are protected from suit against them by the statutory and common law immunity outlined above. Ms. Abernethy candidly conceded that she is not asserting a claim for malicious prosecution. It follows that no action can be brought against these defendants in their personal capacities in these circumstances. See Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170; Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339; Thompson v. Ontario (1998), 1998 CanLII 7180 (ON CA), 113 O.A.C. 82 (C.A.); Gilbert v. Gilkinson (2005), 2005 CanLII 46386 (ON CA), 205 O.A.C. 188 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 67. The defendants Rippey and McNeilly are protected by the statutory immunity provided by the Police Services Act.

. Clark v. Ontario (Attorney General)

In Clark v. Ontario (Attorney General) (Ont CA, 2019) the Court of Appeal considered crown immunity in an interesting case where police sued the Crown after findings that the police had misbehaved:

Crown immunity: The existing jurisprudence is dispositive

[66] The essential question before the motion judge was the scope of Crown immunity and whether it should be diluted to permit negligence claims by police officers. This aspect of Crown immunity has been squarely determined by the Supreme Court’s malicious prosecution trilogy and Henry. We are not persuaded that this line of authority can be avoided, simply by substituting one class of claimants (former accused persons) for another (police officers). As such, it is plain and obvious that the negligence claim cannot succeed.

[67] The motion should have been decided on this basis alone. There was no need to conduct an analysis under Anns/Cooper. In concluding that a duty of care ought not to be recognized, the motion judge relied on the same important policy considerations that animate the Supreme Court’s approach to Crown immunity. Analyzed under the duty of care paradigm, or as a Crown immunity problem, the result must be the same – the claim is doomed to fail.

[68] The motion judge erred in finding that existing case law was not dispositive of the tenability of the plaintiffs’ claim in negligence. The motion judge said, at para. 77: “With the exception of Smith, courts have not considered the potential Crown Attorney civil liability to police officers.” While this may be so, with respect, this approach was too narrow.

[69] The motion judge was aware of this court’s decision in Paton Estate v. Ontario Lottery and Gaming Commission, 2016 ONCA 458 (CanLII), 131 O.R. (3d) 273, in which Pardu J.A. said, at para. 12: “It is not determinative, on a motion to strike, that the law has not yet recognized a particular claim. Rather, the court must ask whether it is plain and obvious that the claim has no reasonable prospect of success.” In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, McLachlin C.J. added, at para. 21: “The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.”

[70] The officers argue that their negligence claim should not have been struck at the pleadings stage because the motion judge was deprived of a proper evidentiary record. They submit that their claim is novel and that it is mere speculation that the policy considerations accepted in the trilogy and Henry are applicable to police officers as claimants. We reject both arguments.

[71] We accept that any countervailing policy concerns relied upon to extend the reach of Crown immunity must be more than speculative: see Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5 (CanLII), [2010] 1 S.C.R. 132, at para. 57. However, this does not necessarily require an evidentiary record.

[72] This court considered this issue in Arora v. Whirlpool Canada LP, 2013 ONCA 657 (CanLII), 118 O.R. (3d) 113, leave to appeal refused, [2013] S.C.C.A. No. 498, involving an appeal from a refusal to certify a class proceeding because it disclosed no cause of action: see s. 5(1)(a) of the Class Proceedings Act, 1992, S.O. 1992, c. 6. The motion judge had failed to find a duty of care under the Anns/Cooper test. The appellants argued that the motion judge should not have undertaken the policy analysis required under this test in the absence of a full factual record.

[73] Writing for the court, Hoy A.C.J.O. rejected this argument. She held, at para. 89, that “in certain circumstances” a policy analysis can be conducted on a pleadings motion. She raised a consideration that is significant on this appeal, at para. 90: “It is also important to consider what, in a particular case, a factual record could reasonably be expected to add to the court’s determination.” She observed that counsel did not provide any “meaningful indication” of the nature of the policy evidence it would lead should the matter proceed further: at para. 91. During the oral hearing of this appeal, counsel for the officers was similarly unable to point to any potential evidence that would assist on the issue of policy.

[74] Importantly, Hoy A.C.J.O. noted that the motion judge “had the benefit of a significant body of jurisprudence to assist in answering this precise question”: at para. 92. She further observed that the issue was not “entirely novel”, and that there was a detailed statutory framework and “abundant academic authority” on the issue: at para. 92.

[75] That is precisely the situation in this case. The issue is not “entirely novel”; the officers simply advance a variation on a familiar theme – the scope of Crown immunity in the context of criminal prosecutions. The Supreme Court has pronounced on this issue on no less than four occasions. On each occasion, the court provided extensive reasons, giving due consideration to the perils of exposing Crown attorneys to negligence claims.

[76] In Henry, the court created a further exception to Crown immunity. That case was also decided at the pleadings stage. There was no new evidence touching on policy implications of allowing the plaintiff’s claim to proceed. We now consider Henry in more detail.

The impact of Henry

[77] Henry is significant for its recognition of a new cause of action against the Crown – Charter damages for wrongful non-disclosure in a criminal prosecution. The court rejected the Crown’s submission that, if such a cause of action is to be recognized, it should be predicated on a standard that approximates malice. Writing for the majority, Moldaver J. found that while malice did not provide a useful framework for analyzing when wrongful non-disclosure becomes actionable, “the policy underpinnings of this Court’s malicious prosecution jurisprudence inform the proper scope of Crown liability for Charter damages in this context”: at para. 32. They are also helpful in this case.

[78] The court must undertake four tasks in determining a claim for Charter damages under Ward: (1) assess whether the Charter has been breached; (2) establish why damages are a “just and appropriate remedy”; (3) consider any countervailing factors that could defeat a damages award; and (4) assess the quantum of damages (at para. 4). The second task bears similarities to the second stage of the Anns/Cooper test.

[79] In his analysis in Henry, Moldaver J. focused on the policy considerations recognized in the trilogy, which he recognized as “compelling good governance” concerns: at para. 71. First, appropriate thresholds for liability must ensure that Crown attorneys are not diverted from their important public duties by having to defend against a litany of civil claims. A standard that is too low runs that risk by allowing for an avalanche of civil proceedings. As Moldaver J. said, at para. 72: “The collective interest of Canadians is better served when Crown counsel are able to focus on their primary responsibility – the fair and effective prosecution of crime.”

[80] The second good governance consideration is avoiding the creation of a chilling effect on Crown prosecutors (i.e., the fear of civil liability motivating defensive lawyering on the part of Crown attorneys). Moldaver J. said, at para. 73: “The public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown’s role as a quasi-judicial officer.”

[81] Justice Moldaver asserted, at para. 41: “These concerns are very real, and they provide compelling reasons why the availability of Charter damages should be circumscribed through the establishment of a high threshold.” This high threshold is reflected in the court’s malicious prosecution cases, just as it is in the Supreme Court’s jurisprudence on the review of Crown discretion in criminal cases. Pointing to the court’s decisions in R. v. Anderson, 2014 SCC 41 (CanLII), [2014] 2 S.C.R. 167, at para. 48, Krieger v. Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 S.C.R. 372, at para. 32, and R. v. Babos, 2014 SCC 16 (CanLII), [2014] 1 S.C.R. 309, at para. 41, Moldaver J. said, at para. 49: “It is a bedrock principle that the exercise of core prosecutorial discretion is immune from judicial review, subject only to the doctrine of abuse of process.”

[82] Justice Moldaver then drew a link between the abuse of process doctrine in the public law sphere and the requirement of malice in the private law sphere. He considered the standard reflected in the tort of malicious prosecution to be an “analogue” to the doctrine of abuse of process: at para. 50. At para. 51 of his reasons, Moldaver J. quoted from Miazga, in which Charron J. said, at para. 81, that “incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence” will not underwrite a claim against the Crown.

[83] The court ultimately rejected a malice standard for claims for non-disclosure under s. 24(1) of the Charter. However, the teachings from Nelles and its progeny were safely preserved. As Moldaver J. said, at para. 66:

For these reasons, I reject the application of the malice standard. In doing so, I do not in any way seek to undercut this Court’s malicious prosecution jurisprudence. The qualified immunity established in Nelles continues to govern tort actions for malicious prosecution. Furthermore, as I will explain, while the malice standard is not directly applicable, the policy factors outlined in Nelles inform the liability threshold in this case. [Emphasis added.]

[84] Justice Moldaver rejected the application judge’s preference for a negligence-based standard. He underscored this approach in the following passages of his judgment, at paras. 74, 76, 92 and 93:

For these reasons, I conclude that good governance concerns mandate a threshold that substantially limits the scope of liability for wrongful non-disclosure. In my view, the standard adopted by the application judge, which is akin to gross negligence, does not provide sufficient limits. As I will explain, a negligence-type standard poses considerable problems, and ought to be rejected.

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… However, the policy concerns raised in the malicious prosecution trilogy are not confined to the exercise of core prosecutorial discretion. In my view, those concerns have a broader reach and are implicated wherever there is a risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice.

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Indeed, the consequences of setting a lower threshold in this context — simple negligence, or even the gross negligence standard adopted by the application judge — would be serious. This type of threshold implicates a duty of care paradigm that ignores the basic realities of conducting a criminal prosecution.

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A duty of care paradigm risks opening up a Pandora’s Box of potential liability theories. For example, if prosecutors were subject to a duty of care, a claimant could allege that they failed to probe the police forcefully enough to ensure that relevant information was not being suppressed. Such an approach would effectively impose an obligation on prosecutors to “police” the police. [Emphasis added.]

Picking up on this last passage, it is equally unpalatable, and untenable for our criminal justice system, to equip the police with the means to “police” prosecutors.

[85] As Henry so powerfully demonstrates, the Supreme Court remains steadfast in its rejection of negligence-based claims against Crown attorneys. It could not be clearer. The officers attempt to side-step this entire line of jurisprudence by suggesting that the policy considerations are different when it comes to police officers. We disagree.

[86] The first governance factor – the diversion of Crown attorneys from their primary duties – is equally valid when the police are substituted for former accused persons. Allowing for claims based in negligence would expose Crown attorneys to innumerable claims of police officers who feel aggrieved by decisions with which they do not agree. It would not serve the criminal justice system well for busy Crown attorneys to worry about being dragged into court to fight off the grievances of disgruntled police officers. It may well be that, in this case, the actions of the trial Crown had serious consequences for the officers; however, this is no reason to open the floodgates.

[87] The second governance factor – encouraging defensive lawyering by Crown attorneys – also remains valid in this context. Exposure to negligence claims by the police would encourage Crown attorneys to focus on extraneous factors during the course of a prosecution. This would tend to distort principled decision-making, in the same way as would the recognition of negligence claims by former accused persons.

[88] 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: Miazga, at para. 64. 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. See R. v. Jordan, 2016 SCC 27 (CanLII), [2016] 1 S.C.R. 631.

[89] We are of the view that all of the policy considerations that informed the trilogy and Henry are operative in this case. Although the officers complain that the motion judge’s decision was made without a proper record, they point to nothing that might have some bearing on the policy considerations already embedded in the jurisprudence.

[90] Accordingly, on a straightforward application of the Supreme Court’s Crown immunity jurisprudence, it is plain and obvious that the officers’ claim in negligence must fail. The motion judge was right to strike this aspect of their claim: see Thompson v. Ontario (Attorney General) (1998), 1998 CanLII 7180 (ON CA), 113 O.A.C. 82 (C.A.); Gilbert v. Gilkinson (2005), 2005 CanLII 46386 (ON CA), 205 O.A.C. 188 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 67; and Miguna v. Ontario(Attorney General), (2005), 2005 CanLII 46385 (ON CA), 205 O.A.C. 257 (C.A.).

Additional issue raised by the Crown

[91] The Attorney General has persuaded us that the motion judge erred in failing to find that the existing case law on Crown immunity was dispositive of the negligence claim. The Attorney General asks us to go further and “correct” the motion judge’s conclusion that there is a relationship of proximity between the police and Crown attorneys. It is unnecessary to do so for the following reasons.

[92] In conducting the second part of his Anns/Cooper analysis, the motion judge found that the same policy considerations that govern the scope of Crown immunity precluded a finding that Crown attorneys owe a duty of care to police officers. Allowing for the fact that he did not need to undertake this analysis, his reliance on these considerations was appropriate. There is a clear correspondence between the factors that animate the scope of Crown immunity and the countervailing factors to be considered at the second stage of the Anns/Cooper framework.

[93] This is illustrated by British case law. In Henry, Moldaver J., at para. 72, referred to Elguzouli-Daf v. Commissioner of Police of the Metropolis, [1995] Q.B. 335, in which the Court of Appeal for England and Wales considered whether the Crown Prosecution Service owed a duty of care to persons it prosecuted. Assuming that reasonable foreseeability of harm could be established, the court found there was no relationship of proximity between prosecuted persons and the Crown Prosecution Service. The court also concluded that it would not be “fair, just or reasonable” to recognize such a duty. Lord Justice Steyn (as he then was) wrote, at p. 349:

I conclude that there are compelling considerations, rooted in the welfare of the community, which outweigh the dictates of individual justice. I would rule that there is no duty of care owed by the C.P.S. to those it prosecutes.

[94] This decision has been cited with approval on many occasions, including by the House of Lords (Customs and Excise Commissioners v. Barclays Bank plc, [2007] 1 A.C. 181, at p. 205; and Jain v. Trent Strategic Health Authority, [2009] 2 W.L.R. 248, at p. 258), and by the Supreme Court of the United Kingdom (SHX v. The Crown Prosecution Service, [2017] 1 W.L.R. 1401, at para. 37).

[95] We also refer to the alternative finding of the Court of Appeal. As Steyn L.J. explained, at p. 349:

I have rested my judgment on the absence of a duty of care on the part of the C.P.S. If my conclusion is wrong, I would for the reasons I have given in dealing with the question whether a duty of care exists rule that the C.P.S. is immune from liability in negligence. [Emphasis added.]

[96] This passage illustrates the considerable correspondence between duty of care policy considerations and the scope of Crown immunity. All roads lead to the same destination – the Crown is not liable to police officers in negligence – and it is unnecessary to embark upon a parallel analytical path only to end up in the same place. A proper articulation of whether and under what circumstances a relationship of proximity exists between Crown attorneys and police requires a fact-specific analysis that is unnecessary in this case. We decline to engage in a hypothetical inquiry that is properly saved for a scenario in which it is required.

Ultimately, the motion judge was right to strike the negligence claim.

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Crown attorneys are not immune from civil liability for misfeasance in public office

[107] The Attorney General argues that Crown attorneys are immune from liability for misfeasance in public office, and enlists the same two grounds it deployed in the successful argument that Crown attorneys are immune from liability for negligence in the performance of their duties: the prospect of liability for misfeasance could divert Crowns from their duties and could have a chilling effect on their conduct. These were the policy reasons Moldaver J. rejected in Henry when he extended liability for Charter damages for wrongful non-disclosure in a criminal prosecution.

[108] The motion judge rejected these arguments in relation to the claim for misfeasance in public office.

[109] We conclude that Crown attorneys are not immune from claims of liability for misfeasance in public office. The trigger for liability provides the functional equivalent of the “high liability threshold” Moldaver J. set in Henry for liability for Charter damages for wrongful disclosure.

[110] The nerve of the Supreme Court’s decisions in the trilogy and in Henry is the deliberate abuse of authority by Crown attorneys. See Nelles, at paras. 55-56, per Lamer J.; and Proulx, at para. 35, per Iacobucci and Binnie JJ. In Miazga, Charron J. said, at para. 51:

Thus, the public law doctrine of abuse of process and the tort of malicious prosecution may be seen as two sides of the same coin: both provide remedies when a Crown prosecutor's actions are so egregious that they take the prosecutor outside his or her proper role as minister of justice, such that the general rule of judicial non-intervention with Crown discretion is no longer justified. Both abuse of process and malicious prosecution have been narrowly crafted, employing stringent tests, to ensure that liability will attach in only the most exceptional circumstances, so that Crown discretion remains intact.

[111] In Miazga, several parties sought to amend the test from Nelles so that malice could be inferred because “independent evidence of malice presents too high a barrier,” but Charron J. rejected these arguments, at para. 52, because they “are ill-conceived and do not account for the careful balancing established in Nelles and Proulx between the right of individual citizens to be free from groundless criminal prosecutions and the public interest in the effective and uninhibited prosecution of criminal wrongdoing.” She concluded that “the ‘inherent difficulty’ in proving a case of malicious prosecution was an intentional choice by the Court, designed to preserve this balance.” See also paras. 79-84.

[112] The need to establish abuse of authority was noted by Moldaver J. in Henry, at para. 49, which we repeat for convenience:

It is a bedrock principle that the exercise of core prosecutorial discretion is immune from judicial review, subject only to the doctrine of abuse of process. The presence of bad faith and improper motives may indicate this type of conduct. [Citations omitted.]

[113] Drawing on Henry, there are “compelling good governance” concerns that require a “high liability threshold” in order for the tort of misfeasance in public office to be a tenable cause of action against Crown attorneys. That “high liability threshold” is satisfied by the requirement of the tort of misfeasance in public office set out in Odhavji that the claimants show the presence of bad faith or improper motives. We also note Moldaver J.’s qualification, at para. 83 of Henry, that “there may be case-specific policy concerns that militate against an award, even if the appellant has made out the heightened per se threshold.” This qualification applies equally to the tort of misfeasance in public office, but requires cogent evidence to substantiate it.

[114] We agree with the motion judge’s conclusion that the pleading of misfeasance in public office was adequate and that Crown attorneys are not immune from claims of liability for misfeasance in public office.