Crown Prosecutorial Immunity. 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. Abernethy v. Ontario
 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),  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.
 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),  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.
 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.
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. Clark v. Ontario (Attorney General)
 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).
 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),  2 S.C.R. 170; Miazga v. Kvello Estate, 2009 SCC 51 (CanLII),  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,  S.C.C.A. No. 67. The defendants Rippey and McNeilly are protected by the statutory immunity provided by the Police Services Act.
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
 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.
 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.
 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.
 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),  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.”
 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.
 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),  1 S.C.R. 132, at para. 57. However, this does not necessarily require an evidentiary record.
 This court considered this issue in Arora v. Whirlpool Canada LP, 2013 ONCA 657 (CanLII), 118 O.R. (3d) 113, leave to appeal refused,  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.
 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.
 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.
 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.
 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
 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.
 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.
 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.”
 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.”
 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),  2 S.C.R. 167, at para. 48, Krieger v. Law Society of Alberta, 2002 SCC 65 (CanLII),  3 S.C.R. 372, at para. 32, and R. v. Babos, 2014 SCC 16 (CanLII),  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.”
 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.
 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.] 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.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.
… 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.
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.
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.]
 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.
 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.
 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.
 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),  1 S.C.R. 631.
 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.
 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,  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
 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.
 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.
 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,  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. This decision has been cited with approval on many occasions, including by the House of Lords (Customs and Excise Commissioners v. Barclays Bank plc,  1 A.C. 181, at p. 205; and Jain v. Trent Strategic Health Authority,  2 W.L.R. 248, at p. 258), and by the Supreme Court of the United Kingdom (SHX v. The Crown Prosecution Service,  1 W.L.R. 1401, at para. 37).
 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.] 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.
Crown attorneys are not immune from civil liability for misfeasance in public office
 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.
 The motion judge rejected these arguments in relation to the claim for misfeasance in public office.
 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.
 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. 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.
 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.] 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.
 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.