Dear Colleagues:

The SCC has just released its decision in in Ontario (AG) v Clark, 2021 SCC 18: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18855/index.do. The issue that the court had to decide was whether Crown Attorneys could be sued by persons other than the accused (in this case police officers) for the tort of misfeasance in public office.  In a (startling?) 8-1 decision, the court has found that there can be no suit since the Crowns are protected by prosecutorial immunity. (Congratulations go out the ODGers, including my colleague Erika Chamberlain, who were cited in the decision).

The facts were as follows: The accused (S) was convicted of armed robbery and forcible confinement. After his conviction, S filed a stay application alleging that the officers assaulted him during his arrest. The Assistant Crown Attorney did not call the plaintiff-officers to give evidence and conceded that the assaults occurred. The judge accepted the evidence and reduced S’s sentence on account of “police brutality”. Those findings were reported in the media. Internal investigations by the police 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 police assaults. It strongly criticized the plaintiff-officers’ conduct. Its findings were reported in the media. After the appeal, further investigations confirmed that the allegations against the police were not substantiated by the evidence. The plaintiff-officers sued the AG for the alleged misfeasance committed by the Assistant Crown Attorney, the senior Crown Attorney and the appeal Crown Attorney. 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.

The majority of the court concluded that the misfeasance claim had to be struck:

[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.

Justice Côté vigorously dissented, the heart of which was as follows:

[155]    Prosecutors who act deliberately and unlawfully should not be allowed to hide behind the veil of absolute immunity from claims brought by police officers. If the Crown’s position is pushed to its logical conclusion, it means that even a malicious prosecutor who accepts a bribe from an accused person to concede allegations of torture and secure a stay, or a reduced sentence for the accused person, will face no civil liability. Oddly enough, such a prosecutor may face criminal penalties and go to prison for his or her conduct, but cannot be forced to pay money damages. Allowing such prosecutors to cause harm without suffering financial consequences undermines public trust in the office of prosecutor and tarnishes the image of law-abiding and dedicated prosecutors. Courts should be able to sort the bad apples from the good ones.

[156]    Also, treating prosecutors so favourably by granting them an overly broad immunity undermines the rule of law — a fundamental principle of our Constitution — by sending the message that prosecutors are above the law and are not held accountable in the same way as ordinary citizens (Nelles, at p. 195). In Roncarelli, this Court refused to provide blanket immunity to the highest public officer of a province — Premier Duplessis — for his act of targeted malice, because that would have been too great a violation of the rule of law. Arguably, if a malicious premier is equal before the law and can thus be held liable, the same should be true of a Crown prosecutor.

[157]    In addition to tarnishing the image of prosecutors, the immunity sought by the Crown undermines public confidence in the police. Where police officers are unable to restore their image by rebutting findings of misconduct, this loosens the bonds of trust between them and the public. …

[165]    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. So long as a court is satisfied that the defendant prosecutor was acting deliberately and unlawfully, and was fully aware that the conduct was unlawful and likely to harm the plaintiff, then the liability threshold is “near the high end of the blameworthiness spectrum” (Henry, at para. 91). The prosecutor’s subjective knowledge of both unlawfulness and likely harm are key elements. Therefore, to the extent that other courts have concluded that knowledge includes not only actual knowledge but also recklessness, those decisions should not govern ….

I have to admit to finding the dissent totally convincing and being shocked by that Justice Côté was forced to dissent alone.  Is this an example of policy run amok or state interests rightly limiting private law claims? In any event, Ontario (AG) v Clark will provide interesting fodder for discussion at Obligations X.

Sincerely,

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)