Attorney General of Ontario Appellant v. Jamie Clark, Donald Belanger and Steven Watts, 2021 SCC 18

SUPREME COURT OF CANADA Citation: Ontario (Attorney General) v.

Clark, 2021 SCC 18, [2021] 1 S.C.R. 607 Appeal Heard: October 15, 2020 Judgment Rendered: April 30, 2021 Docket: 38687 Between: Attorney General of Ontario Appellant and Jamie Clark, Donald Belanger and Steven Watts Respondents - and - Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Toronto Police Chief James Ramer, Canadian Association of Chiefs of Police, Canadian Association of Crown Counsel and Ontario Crown Attorneys’ Association Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 62) Abella J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. concurring) Dissenting Reasons: (paras. 63 to 173) Côté J. Attorney General of Ontario Appellant

v. Jamie Clark, Donald Belanger and Steven Watts Respondents and Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Toronto Police Chief James Ramer, Canadian Association of Chiefs of Police, Canadian Association of Crown Counsel and Ontario Crown Attorneys’ Association Interveners Indexed as: Ontario (Attorney General) v. Clark 2021 SCC 18 File No.: 38687. 2020: October 15; 2021: April 30.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for ontario Crown law — Prosecutorial immunity — Misfeasance in public office — Police officers commencing misfeasance claim against Attorney General on basis of Crown prosecutors’ failure in conduct of criminal trials to challenge accused’s claims of assault by police officers during arrest — Officers alleging that they suffered reputational harm and seeking damages — Whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors for decisions made in exercise of public duties — Whether claim should be struck.

In June 2009, three officers with the Toronto Police Service arrested M and S in connection with a complaint of armed robbery and forcible confinement. Both men were charged and committed to stand trial. Prior to trial, M brought an application to stay the proceedings against him and to exclude the evidence of a confession he made on the day of the arrest based on his claim that the police beat him during the arrest and caused him a serious rib injury. The Assistant Crown Attorney and a senior Crown Attorney agreed that M’s confession would not be admissible, and the charges against M were stayed.

The jury trial against S proceeded and he was convicted. After his conviction, S filed a stay application alleging that the officers assaulted him and M during their arrest. M and S both testified on the stay application. The Assistant Crown Attorney did not call the officers to give evidence and conceded that the assaults occurred. The judge accepted the evidence and reduced S’s sentence. Her reasons described the assaults in detail and described the officers’ conduct as “police brutality”. Those findings were reported in the media.

The Special Investigations Unit (“SIU”) and the Toronto Police Service Professional Standards Unit (“PSU”) then conducted reviews of the allegations of misconduct against the officers. The SIU discontinued its proceedings when M declined to participate; the PSU concluded that the alleged misconduct could not be substantiated. S appealed the decision not to stay the proceedings. The Court of Appeal allowed S’s appeal and entered a stay of proceedings, noting that the appeal Crown did not contest the evidence of the assaults. It strongly criticized the officers’ conduct. Its findings were reported in the media.

After the appeal, the SIU reopened its investigation and concluded that M’s rib injury post-dated the arrest and that the allegations against the police were not substantiated by the evidence. An Ontario Provincial Police review concluded that the PSU investigation was thorough and that there was no reason to refute its conclusions. The officers sued the Attorney General for negligence and misfeasance committed by the Assistant Crown Attorney, the senior Crown Attorney and the appeal Crown Attorney. They sought general damages for negligence and misfeasance, plus aggravated, exemplary and punitive damages.

They claimed to have suffered irreparable harm to their reputations and credibility. The Attorney General moved to strike the claim for failing to disclose a cause of action. The motions judge struck the negligence claim but allowed the misfeasance claim to proceed, and this decision was upheld on appeal. Only the decision as to the misfeasance claim is appealed to the Court. Held (Côté J. dissenting): The appeal should be allowed and the misfeasance claim struck. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Prosecutors do not owe

specific legal duties to the police with respect to how they carry out a prosecution, and misfeasance cannot be used to get around this reality. Piercing the immunity of Crown prosecutors to make them accountable to police officers would put Crown prosecutors in perpetual potential conflict with their transcendent public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice. This means that the officers’ misfeasance claim would not succeed.

Prosecutorial immunity advances the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial roles as ministers of justice. The principles underlying immunity are the prosecutor’s constitutionally protected independence, the risks to objective decision- making, and a concern about diverting prosecutors from their public interest duties.

The jurisprudence has recognized that exposing prosecutors to civil liability may create a chilling effect, encouraging decision-making motivated by a desire to ward off the spectre of liability and obfuscating the prosecutor’s core duties to act objectively and independently in the interests of the integrity of the system and the rights of the accused. The need to safeguard and vindicate the rights of the accused, who is uniquely vulnerable to the misuse of prosecutorial power, is crucial.

Allowing police officers to sue the Crown in misfeasance for decisions prosecutors make in the course of criminal proceedings would raise profound risks to the rights of the accused and to prosecutorial independence and objectivity, and it would undermine the integrity of the criminal justice system.

It would also be fundamentally incompatible with the mutually independent relationship between the police and the prosecutor: the police’s role is to investigate crime; the Crown prosecutor’s role is to assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to the administration of justice and the accused. For prosecutors to be at risk of civil liability for reputational harm to police officers means considering irrelevant considerations and risking independence and objectivity, the core of the prosecutor’s role.

Police suing prosecutors for decisions they make in the course of a criminal prosecution is a recipe for putting prosecutors in conflict with their duty to protect the integrity of the process and the rights of the accused. Beyond the risk of actual conflict, the appearance of such a conflict would be equally damaging to the integrity of the administration of justice.

Permitting police lawsuits against Crown prosecutors would suggest to the public and to accused persons that police were policing prosecutions through the use of private law, imperiling public confidence in the independent and objective ability of prosecutors to conduct fair trials.

The police have a legitimate expectation and interest in their reputations not being unfairly impaired, but the solution cannot be to make prosecutors accountable to them in a way that obliterates the independence between police and prosecutors and is inconsistent with the Crown’s core public duties to the administration of justice and to the accused. Per Côté J. (dissenting): The appeal should be dismissed.

Prosecutorial immunity should not apply to claims for misfeasance in public office brought by police officers who suffered harm as a result of deliberate and unlawful conduct by prosecutors in connection with serious criminal allegations of police misconduct. The rule of law requires equality before the law, and is incompatible with absolute immunities. The Court has recognized two exceptions to prosecutorial immunity in favour of accused persons: the torts of malicious prosecution and wrongful non-disclosure.

Although the protection of prosecutorial independence is constitutionally entrenched in s. 7 of the Charter , the scope of prosecutorial immunity is a matter of policy. Prosecutorial independence translates into two policy concerns which are meant to gauge the risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice: the risk of creating a chilling effect on the exercise of prosecutorial discretion and the risk of diverting prosecutors from their public duties.

These concerns must not be invoked like a mantra to justify the application of prosecutorial immunity in every situation not falling within the exceptions recognized for the benefit of accused persons; rather, they should be considered in light of the particular liability threshold applicable to the tort at issue.

A two-step analysis should be used to decide whether prosecutorial immunity should be applied in a particular situation: the first step requires determining whether there are cogent policy reasons for piercing the immunity, and the second step requires determining whether the liability threshold for the tort at issue is high enough to tamp down the twin policy concerns and to safeguard prosecutorial independence.

With respect to the first step, four policy reasons justify not applying prosecutorial immunity in cases where police officers suffered serious damages arising from unlawful and deliberate prosecutorial misconduct: (1) the tactical nature of the decisions involved; (2) the significance of the interests at stake; (3) the lack of meaningful alternative remedies and accountability mechanisms; and (4) public confidence in the office of prosecutor and in the police.

First, the principle of prosecutorial independence does not apply to decisions pertaining to the handling of allegations of police brutality because they are, in general, tactical decisions falling outside the core of prosecutorial discretion. The principle of prosecutorial independence seeks to protect first and foremost the core of prosecutorial discretion, including decisions about the nature and extent of the prosecution (decisions to press charges, to enter a stay of proceedings, to enter into a plea bargain, to withdraw from proceedings and to take control of a private prosecution).

Decisions that do not pertain to the nature and extent of the prosecution, such as tactical decisions, fall outside the scope of core prosecutorial discretion, so interfering with them does not implicate prosecutorial independence to the same extent. In any event, any conduct amounting to bad faith or malice falls outside the core and does not engage prosecutorial independence.

Second, just as the significance of the interests of accused persons may prevent the application of prosecutorial immunity, the significance of the interests at stake for the police officers weighs in favour of a conclusion that prosecutorial immunity does not apply. Findings of police brutality can have a profound impact on the officers’ dignity, professional life, reputation and mental health. Those findings could also leave the officers open to professional discipline, or to civil and criminal liability.

In addition, they would make the burden of proving the reasonableness of the use of force or self-defence in subsequent proceedings much more difficult. Third, the available alternative remedies are unable to make the victims whole again. Disciplinary proceedings against the prosecutors before the Law Society or administrative sanctions from their employer carry little weight in comparison with prior judicial determinations of police brutality and torture made by a criminal court. Only exculpatory findings made by a civil court which had the

benefit of all the evidence and did a thorough analysis can clear police officers’ names once and for all. However, this remedy iscontingent on an accused person’s decision to bring a civil suit against the police; if the accused person decides not to sue the police, theofficers are unable to challenge the findings of police brutality in a court of law because prosecutorial immunity deprives them of anautonomous access to the civil courts.

If the immunity is displaced and the officers are able to bring their own action against theprosecutors to take issue with the mishandling of the allegations of police brutality, the officers will be in a position to actively vindicatetheir reputations. Finally, not applying prosecutorial immunity in such cases reinforces public confidence in both the office of prosecutor andthe police. Public confidence in the office of prosecutor is better served when prosecutors are made accountable than when they areabsolved from any misconduct.

Protecting prosecutors who act unlawfully in a deliberate manner erodes public confidence in the officeof Crown prosecutor. Prosecutorial immunity also undermines public confidence in the police. Where police officers are unable toredress their records before another court, their damaged reputation impedes the police’s capacity to investigate and protect and hampersthe prosecution of crime. It also makes them vulnerable to the defence’s attacks when they testify, weakening the Crown’s case as aresult and potentially allowing some guilty accused persons to unduly avoid convictions.

With respect to the second step, the liability threshold for the tort of misfeasance in public office places the bar high enoughto mitigate the twin policy concerns and to safeguard prosecutorial independence: a plaintiff must establish deliberate misconduct thatdemonstrates bad faith or dishonesty; inadvertent or negligent action of public officers are not enough. This high threshold must beconsidered in the context of the class of potential claimants and the prosecutorial activity at issue.

The class of potential claimants —police officers facing allegations of serious misconduct in a criminal case — is very narrow, and the prosecutors’ conduct at issue heredoes not fall within the core of prosecutorial discretion. When considered in this specific context, the high threshold provided by theelements of misfeasance in public office adequately protects against a chilling effect on the exercise of prosecutorial discretion,interference with prosecutorial independence, and the diversion of prosecutors from their duties.

Finally, although permitting policeofficers to bring misfeasance claims may result in contradictory decisions, relitigation is necessary to enhance the credibility and theeffectiveness of the adjudicative process as a whole when the first proceeding is tainted by fraud or dishonesty, when fresh, newevidence, previously unavailable, conclusively impeaches the original results, or when fairness dictates that the original result should notbe binding in the new context.

In the instant case, the officers have adequately pleaded the four essential elements of misfeasance in public office.Accordingly, their misfeasance claim should be allowed to continue. Cases Cited By Abella J. Considered: Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170; referred to: R. v. Singh, 2012 ONSC 2028; R.v. Singh, 2012 ONSC 4429; R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3S.C.R. 263; Powder Mountain Resorts Ltd. v.

British Columbia, 2001 BCCA 619, 94 B.C.L.R. (3d) 14; Three Rivers District Council v.Bank of England (No. 3) (2000), [2003] 2 A.C. 1; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339; Proulx v. Quebec(Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9; Smith v. Ontario (Attorney General), 2019 ONCA 651, 147 O.R. (3d) 305; Kriegerv. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Boucher v. The Queen, (SCC), [1955] S.C.R. 16; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. Power, (SCC),[1994] 1 S.C.R. 601; Henry v.

British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214; R. v. Beaudry, 2007 SCC 5,[2007] 1 S.C.R. 190. By Côté J. (dissenting) Roncarelli v. Duplessis, (SCC), [1959] S.C.R. 121; Henry v. British Columbia (Attorney General), 2015SCC 24, [2015] 2 S.C.R. 214; Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959; R. v. Singh, 2012 ONSC 2028;R. v. Singh, 2012 ONSC 4429; R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253; Nelles v. Ontario, (SCC), [1989] 2S.C.R. 170; Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983;Odhavji Estate v.

Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; British Columbia(Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657; Hill v. Church of Scientology of Toronto, (SCC),[1995] 2 S.C.R. 1130; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Botiuk v. Toronto Free PressPublications Ltd., (SCC), [1995] 3 S.C.R. 3; Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645; Reference re PublicService Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; Wallace v. United Grain Growers Ltd., (SCC), [1997] 3 S.C.R. 701; Day v.

Woodburn, 2019 ABQB 356, 96 Alta. L.R. (6th) 302; Nelles v. The Queen in right ofOntario (1985), (ON CA), 51 O.R. (2d) 513; Bosada v. Pinos (1984), (ON SC), 44 O.R. (2d) 789;Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339;Watkins v. Secretary of State for the Home Department, [2006] UKHL 17, [2006] 2 A.C. 395; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R.66; Three Rivers District Council v.

Bank of England (No. 3), [2003] 2 A.C. 1; Alberta (Minister of Public Works, Supply & Services) v.Nilsson, 1999 ABQB 440, 246 A.R. 201, aff’d 2002 ABCA 283, 320 A.R. 88; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,[2003] 3 S.C.R. 77. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, s. 7. Criminal Code, R.S.C. 1985, c. C-46, ss. 25, 34, 269.1(2). Crown Attorneys Act, R.S.O. 1990, c. C.49, ss. 6(5), 8. Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.

Authors Cited Chamberlain, Erika. Misfeasance in a Public Office . Toronto: Thomson Reuters, 2016. Code, Michael. “Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg” (2009), 34 Queen’s L.J . 863. Horsman, Karen, and Gareth Morley, eds. Government Liability: Law and Practice . Toronto: Thomson Reuters, 2020 (loose-leaf updated November 2020, release 36). Law, J. M. “A Tale of Two Immunities: Judicial and Prosecutorial Immunities in Canada” (1990), 28 Alta. L. Rev. 468. Nova Scotia.

Royal Commission on the Donald Marshall, Jr., Prosecution , vol. 1, Findings and Recommendations . Halifax, 1989. Ontario. Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions . Toronto, 1993. Ontario. The Commission on Proceedings Involving Guy Paul Morin: Report , vol. 2. Toronto, 1998. Rosenberg, Marc. “The Attorney General and the Administration of Criminal Justice” (2009), 34 Queen’s L.J. 813. Sterling, Lori, and Heather Mackay. “Constitutional Recognition of the Role of the Attorney General in Criminal Prosecutions: Krieger v.

Law Society of Alberta ” (2003), 20 S.C.L.R. (2d) 169 . APPEAL from a judgment of the Ontario Court of Appeal (Lauwers, Huscroft and Trotter JJ.A.), 2019 ONCA 311 , 56 C.C.L.T. (4th) 1, [2019] O.J. No. 2027 (QL), 2019 CarswellOnt 5941 (WL Can.), affirming a decision of Stinson J., 2017 ONSC 3683 , [2017] O.J. No. 3236 (QL), 2017 CarswellOnt 9706 (WL Can.). Appeal allowed, Côté J. dissenting. Sunil Mathai and Ananthan Sinnadurai , for the appellant. Lorne Honickman and Michael Lacy , for the respondents. Patrick McGuinty , for the intervener the Attorney General of New Brunswick.

Amiram Kotler , for the intervener the Attorney General of Manitoba. Tara Callan , for the intervener the Attorney General of British Columbia. Michael J. Morris , for the intervener the Attorney General of Saskatchewan. Christine Rideout , Q.C. , for the intervener the Attorney General of Alberta. Earl A. Cherniak , Q.C. , for the intervener Toronto Police Chief James Ramer. Rachel Huntsman , Q.C. , for the intervener the Canadian Association of Chiefs of Police. Paul J. J. Cavalluzzo , for the interveners the Canadian Association of Crown Counsel and the Ontario Crown Attorneys’ Association.

The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. was delivered by [ 1 ] Abella J. — The issue in this appeal is whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors for decisions they make in the exercise of their public duties. Background [ 2 ] Three officers with the Toronto Police Service, Jamie Clark, Donald Belanger and Steven Watts, sued the Attorney General of Ontario for negligence and misfeasance in public office.

Their claim is based on the alleged misconduct of Crown prosecutors in the way they dealt with stay applications brought by two accused persons who claimed that the police officers assaulted them during an arrest. [ 3 ] This appeal arises from the Attorney General’s motion to strike the claim pursuant to Rule 21 of Ontario’s Rules of Civil Procedure , R.R.O. 1990, Reg. 194 . In the proceedings leading up to this appeal, the courts struck the negligence claim but allowed the misfeasance claim to proceed.

Only the misfeasance claim is before this Court. [ 4 ] In June 2009, the officers arrested Randy Maharaj and Neil Singh in connection with a complaint of armed robbery and forcible confinement. Both men were charged and committed to stand trial. [ 5 ] Assistant Crown Attorney Sheila Cressman was assigned carriage of the prosecutions. Prior to trial, Mr. Maharaj brought an application to stay the proceedings against him and to exclude the evidence of a confession he made on the day of the arrest based on his claim that the police beat him during the arrest and caused him a serious rib injury. [ 6 ] Ms.

Cressman consulted with a senior Crown attorney, Frank Armstrong, who agreed that Mr. Maharaj’s confession would not be admissible. The charges against Mr. Maharaj were stayed.

[7] The jury trial against Mr. Singh proceeded and he was convicted. After his conviction, Mr. Singh filed a stayapplication alleging that the officers assaulted him and Mr. Maharaj during their arrest. Mr. Maharaj and Mr. Singh both testified on thestay application. Ms. Cressman did not call the officers to give evidence. [8] Ms. Cressman conceded at the stay hearing that the assaults occurred, but argued that the appropriate remedy forMr. Singh was a reduced sentence. The judge accepted the evidence that the officers assaulted Mr. Singh and Mr. Maharaj.

She did notorder a stay, finding that a reduced sentence would be a more appropriate remedy. In her reasons, dated March 28, 2012, she describedthe assaults in detail and, in her reasons for sentence dated July 27, 2012, she described the officers’ conduct as “police brutality” (2012ONSC 2028; 2012 ONSC 4429). Those findings were reported in the media. [9] The Special Investigations Unit (SIU) was notified of the officers’ conduct, but Mr. Maharaj declined to participatein the SIU investigation. As a result, the SIU did not continue its proceedings.

The Toronto Police Service Professional Standards Unit(PSU) then conducted its own review of the allegations of misconduct against the officers, and concluded in a report issued in October2012, that “[b]ased on the available evidence and analysis conducted, misconduct on the part of the subject officers cannot besubstantiated”. [10] Mr. Singh appealed the decision not to stay the proceedings. The appeal was heard on October 18, 2013, after thePSU had issued its report.

The judges at the hearing asked the Crown on the appeal, Amy Alyea, whether disciplinary action or criminalproceedings were initiated against the officers. The officers claim that she did not inform the court of the exculpatory PSU findings ormake a fresh evidence application to put those findings before the court. [11] The Court of Appeal allowed Mr. Singh’s appeal and entered a stay of proceedings on December 12, 2013 (2013ONCA 750 , 118 O.R. (3d) 253). In its reasons, the court noted that the Crown did not “contest [the evidence of the assaults] onappeal”, and strongly criticized the officers’ conduct.

Its findings were reported in the media. [12] After the appeal, the SIU reopened its investigation, interviewed Mr. Maharaj and reviewed the records.

In May 2014,it concluded that the rib injury post-dated the arrest and that the allegations against the police were not substantiated by the evidence.The Ontario Provincial Police subsequently conducted its own review of the PSU investigation, concluding on April 9, 2015 that theinvestigation was thorough and that there was no reason to refute its conclusions. [13] On June 22, 2016, the police officers sued the Attorney General for negligence and misfeasance committed byMs. Cressman, Mr. Armstrong and Ms. Alyea.

They sought general damages in the amount of $500,000 for negligence and misfeasance,in addition to $250,000 in aggravated, exemplary and punitive damages for each plaintiff. They claimed to have suffered irreparableharm, including “damage to their reputations and credibility among members of the judiciary, the Attorney General’s office, the criminaldefence bar and the public at large”. [14] The negligence pleading was based on Ms. Cressman, Mr. Armstrong and Ms.

Alyea’s breaches of an alleged duty ofcare owed by Crown prosecutors to investigating police officers with respect to the conduct of a prosecution. [15] The misfeasance pleading was based on the claim that the prosecutors’ conduct was deliberately unlawful andcommitted with knowledge that it would result in reputational harm to the officers. Against Ms.

Cressman, the pleading stated that herunlawful conduct included her failure to properly ascertain the veracity of the assault allegations, her failure to call the police aswitnesses to refute what the officers described as false and defamatory claims, and her ignoring or being wilfully blind to facts thatexculpated the officers. [16] Against Ms. Alyea, it was also claimed that she had acted for the improper purpose of protecting Ms. Cressman in notinforming the Court of Appeal of the results of the PSU report, which exculpated the officers. The officers also claim that Mr.

Armstrongacted unlawfully in breach of his duties, but the claim against him is not particularized. [17] The Attorney General moved to strike the claim for failing to disclose a cause of action, arguing that the negligenceand misfeasance claims were barred by prosecutorial immunity. [18] The motions judge struck the negligence claim but allowed the misfeasance claim to proceed (2017 ONSC 3683). Hefound that overriding policy concerns precluded the recognition of a duty of care owed by Crown attorneys to investigating policeofficers.

On the other hand, he found that it was not “plain and obvious” that prosecutors were immune to misfeasance claims brought bypolice officers. [19] The Attorney General appealed the decision to allow the misfeasance claim to go to trial, and the officers appealedthe decision to strike the negligence claim. The Court of Appeal for Ontario dismissed both appeals (2019 ONCA 311, 56 C.C.L.T. (4th)1). [20] The Court of Appeal agreed with the motions judge’s decision to strike the negligence claim.

It found that “based onCrown immunity principles, no claim lies against the Crown in negligence, whether it be simple or gross negligence”. Citing theSupreme Court’s “steadfast” rejection of negligence-based claims against Crown attorneys even in the context of claims brought byaccused persons, it concluded that there is no reason to privilege claims brought by police officers. But it allowed the misfeasance claimto go to trial, finding that Crown attorneys are not immune from civil liability for misfeasance in public office. [21] The Attorney General appealed to this Court on the misfeasance issue.

The officers did not cross-appeal the strikingof the negligence claim. Analysis [22] The elements and proper scope of the tort of misfeasance are not disputed in this appeal. A successful misfeasanceclaim requires the plaintiff to establish that the public official engaged in deliberate and unlawful conduct in his or her capacity as a

public official, and that the official was aware that the conduct was unlawful and likely to harm the plaintiff (Odhavji Estate v.Woodhouse, 2003 SCC 69 , [2003] 3 S.C.R. 263, at para. 23, per Iacobucci J.). [23] The unlawful conduct anchoring a misfeasance claim typically falls into one of three categories, namely

an act inexcess of the public official’s powers, an exercise of a power for an improper purpose, or a breach of a statutory duty (Odhavji, atpara. 24). The minimum requirement of subjective awareness has been described as “subjective recklessness” or “conscious disregard”for the lawfulness of the conduct and the consequences to the plaintiff (Odhavji, at paras. 25 and 29; Powder Mountain Resorts Ltd. v.British Columbia (2001), 2001 BCCA 619 , 94 B.C.L.R. (3d) 14 (C.A.), at para. 7; Three Rivers District Council v.

Bank ofEngland (No. 3) (2000), [2003] 2 A.C. 1 (H.L.), at pp. 194-95, per Lord Steyn). [24] In this case, the misfeasance claim consists of two key allegations. The first is against Ms. Cressman for failing totake sufficient steps to investigate and rebut the claims of police brutality made by the accused in their stay applications. The officersplead that Ms. Cressman acted in deliberate disregard of her oath of office, incorporated in s. 8 of the Crown Attorneys Act, R.S.O. 1990,c. C.49, to act “without favour or affection to any party”. The second is that Ms. Alyea, the Crown in Mr.

Singh’s appeal, failed toinform the Court of Appeal of the results of the PSU report, thereby acting for the improper purpose of protecting Ms. Cressman. [25] This is the first opportunity this Court has had to consider prosecutorial immunity in the context of claims against theCrown brought by police officers for prosecutorial conduct in the course of a criminal proceeding. Until Nelles v. Ontario, (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 , [2009] 3 S.C.R. 339, at para. 43, per Charron J.; Proulx v. Quebec (AttorneyGeneral), 2001 SCC 66 , [2001] 3 S.C.R. 9, at para. 104, per L’Heureux-Dubé J., dissenting; J. M. Law, “A Tale of TwoImmunities: 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), 20S.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 thepolicy consequences of exposing prosecutors to liability, versus the need to safeguard and vindicate the rights of the accused, who isuniquely 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 (AttorneyGeneral) (2019), 2019 ONCA 651 , 147 O.R. (3d) 305 (C.A.), Tulloch J.A. reviewed our immunity jurisprudence and aptlycaptured the critical considerations running through the cases — the importance of vindicating the rights of the accused, and the use ofhigh 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 SupremeCourt 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 forCharter breaches. [paras. 97-98] [28] As Charron J. explained in Miazga, immunity advances “the public interest by enabling prosecutors to makediscretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling theirquasi-judicial role as ‘ministers of justice’” (para. 47).

The principles underlying immunity are the prosecutor’s constitutionally protectedindependence, 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 itis constitutionally entrenched” (Miazga, at para. 46). In Krieger v.

Law Society of Alberta, 2002 SCC 65 , [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 supervisingprosecutorial decisions . . . . This side of the Attorney General’s independence finds further form in the principle that courts will not interfere with his exercise ofexecutive 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 toconsider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicialsupervision, could erode the integrity of our system of prosecution.

Clearly drawn constitutional lines are necessary in areas subject tosuch grave potential conflict. [paras. 30-32] [30] In Miazga, Charron J. observed that “well-established public law principles relating to Crown independence andprosecutorial discretion” cannot be ignored in the context of private law prosecutorial liability (para. 5). The principle of independence istied to the prosecutor’s obligation to make objective and fair decisions.

That is why the jurisprudence has recognized that exposingprosecutors to civil liability may create a “chilling effect”, encouraging decision-making motivated by a desire to ward off the spectre ofliability and obfuscating the prosecutor’s core duties to act objectively and independently in the interests of the integrity of the systemand the rights of the accused. [31] As LeBel J. explained in R. v. Regan, 2002 SCC 12 , [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, (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 theCrown considers to be credible evidence relevant to what is alleged to be a crime . . . .

The role of prosecutor excludes any notion ofwinning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personalresponsibility. [pp. 23-24] [32] This means that the responsibility of the Crown includes the obligation to act objectively, independently and fairlytoward the accused. These imperatives are “not confined to the courtroom and attac[h] to the Crown Attorney in all dealings in relationto an accused” more generally (Regan, at paras. 155-56, per Binnie J., dissenting). In R. v.

Cawthorne, 2016 SCC 32 , [2016] 1S.C.R. 983, this Court recognized that an accused person has a constitutional right, as a principle of fundamental justice under s. 7 of theCharter, 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 theirprosecutorial functions (Cawthorne, at para. 27).

They act in “the interest of the community to see that justice is properly done” (R. v.Power, (SCC), [1994] 1 S.C.R. 601, at p. 616, per L’Heureux-Dubé J.).

Their ultimate task “is to see that the publicinterest 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., dissentingin the result, quoting Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and ResolutionDiscussions (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. explainedthat immunity “encourages public trust in the fairness and impartiality of those who act and exercise discretion in the bringing andconducting of criminal prosecution” and avoids a “chilling effect on the prosecutor’s exercise of discretion” arising from “the threat ofpersonal liability for tortious conduct” (pp. 178-79, see also p. 199; Henry v.

British Columbia (Attorney General), 2015 SCC 24, [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 couldnot protect the Crown from claims of malicious prosecution brought by an accused. Lamer J. expanded on the importance of allowing awrongfully and maliciously accused person to advance a cause of action.

Malicious prosecution requires the plaintiff to establish that theprosecutor 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 toseek a remedy for unconstitutional deprivations of liberty and security of the person (pp. 195-96). It would be a “threat to the individualrights of citizens who have been wrongly and maliciously prosecuted” (p. 199).

Moreover, public confidence in the administration ofjustice would suffer if “the person who is in a position of knowledge in respect of the constitutional and legal impact of his conduct isshielded 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 considerationsat 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 theirfunctions.

Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess aprosecutor’s judgment calls when assessing Crown liability for prosecutorial misconduct. Nelles affirmed unequivocally the publicinterest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecutingauthorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances.

Against these vital considerations isthe 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 theavailability 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 uninhibitedprosecution of criminal wrongdoing” (para. 52). She also emphasized the importance of proving a demonstrable improper purpose ormotive, which cannot be inferred from an absence of reasonable and probable grounds alone.

The plaintiff must demonstrate “that theprosecutor 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 groundsdid in fact exist at the relevant time, it cannot be said that the criminal process was wrongfully invoked”, regardless of the prosecutor’ssubjective belief (para. 73).

This serves as a basis on which meritless claims can be struck before trial (Miazga, at para. 74; Nelles, atp. 197). [38] This Court’s most recent opportunity to consider the limits of prosecutorial immunity arose in Henry, where itaffirmed that immunity could not protect a prosecutor from claims of wrongful non-disclosure by an accused. Ivan Henry had beenconvicted of sexual offences and imprisoned for nearly 27 years before the British Columbia Court of Appeal quashed his convictionsand acquitted him of all charges.

He brought a civil suit against the Attorney General for Charter damages arising from the Crownprosecutor’s failure to disclose exculpatory evidence. The importance of displacing immunity to allow for an accused to vindicate hisCharter rights was uncontested, and the question turned exclusively on the threshold to be applied.

Moldaver J. held that liability will betriggered when the Crown in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or wouldreasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on theaccused’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 courtsto scrutinize prosecutorial decisions affecting the rights of the accused (The Honourable Marc Rosenberg, “The Attorney General andthe Administration of Criminal Justice” (2009), 34 Queen’s L.J. 813; see also Michael Code, “Judicial Review of ProsecutorialDecisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg” (2009), 34 Queen’s L.J. 863). [40] The question before us, then, in light of the accused-centered policy thread woven through the authorities, is whetherwe should further encroach on prosecutorial immunity to allow police officers to sue the Crown in misfeasance for decisions prosecutorsmake in the course of criminal proceedings.

In my view, allowing police officers to initiate such causes of action would raise profoundrisks to the rights of the accused and to prosecutorial independence and objectivity, and it would undermine the integrity of the criminaljustice system. [41] One of the critical dimensions of a prosecutor’s independence that is protected by immunity is, in fact, independencefrom the police. The police role is to investigate crime.

The Crown prosecutor’s role, on the other hand, is to assess whether aprosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to theadministration of justice and the accused.

Police and Crown prosecutors are expected to “act according to their distinct roles in theprocess, investigating allegations of criminal behaviour, and assessing the public interest in prosecuting, respectively” (Regan, atpara. 87; see also Smith, at para. 72). [42] In Regan, this Court emphasized the importance to the administration of justice of prosecutorial independence fromthe police. The issue in Regan concerned prosecutorial involvement in the pre-charge stage of an investigation.

Ultimately, LeBel J. heldfor 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 justicewhich have sent innocent men to jail” (para. 66). [43] Most pertinently, he concluded that “Crown objectivity and the separation of Crown from police functions areelements 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 retainboth 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’sinvestigative process and decisions helps “ensure that both investigations and prosecutions are conducted more thoroughly, and thusmore fairly” (para. 160, per Binnie J., quoting the Martin Report, at p. 39). [45] In R. v. Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190, the Court made it clear that prosecutorial independencefrom police is not a one way street.

The police “have a particular role to play in the criminal justice system . . . and it is important thatthey 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 exercisedindependently 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 “mutualindependence”, which “provides a safeguard against the misuse of both investigative and prosecutorial powers and can ensure that bothinvestigations 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 “mutuallyindependent” relationship.

Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. Touse misfeasance to get around this reality would be to permit a police officer to take a prosecutor to court to challenge the prosecutor’scompliance with his or her public duties (Odhavji, at para. 29). Such a relationship of legal accountability between the prosecutor and thepolice 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 activerole in scrutinizing decisions of the Attorney General and its agents, including through the exceptions to prosecutorial immunity, hasbeen driven by the realization that failing to provide appropriate checks and balances on Crown conduct, including the relationship withthe 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 onthe Donald Marshall Jr.

Prosecution concluded that a distinct boundary between the function of the police and the Crown is essential tothe 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 PaulMorin, the Commissioner concluded that the Crown’s failure to maintain objectivity throughout the process, which contributed toMorin’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 evidencefavoured the prosecution; this coloured their objectivity; two, their relationship with the police which, at times, blinded them, andprevented 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. [ 54 ] In this case, for example, after consulting with a senior Crown attorney, the trial Crown exercised her professional judgment not to call any evidence on the hearing of Mr.

Singh ’s stay application, and to concede the assault allegations made by Mr. Maharaj. Requiring her to take into account the concerns of the police officers would have improperly incorporated policing objectives into her decision making, changing the dynamic and focus of the prosecution.

The accused’s constitutionally protected rights and the public interest in the efficient administration of justice could potentially be made to defer to prosecutorial anxiety over whether police interests have been sufficiently taken into account. [ 55 ] With respect to the appeal Crown, the main concern of the officers was that she wrongfully “suppressed” the PSU report from the Court of Appeal in order to protect Ms. Cressman. The transcript of the appeal hearing, however, reveals no suppression. In response to a question from the bench, Ms.

Alyea did tell the court that a review was conducted by the Toronto Police Services and that she was not aware of any resulting disciplinary action against the police officers. She offered to provide the court with a copy of the report, but the court did not feel that it was necessary to do so.

It is hard to see how this could be characterized as wrongdoing, or even an error in professional judgment. [ 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 thesecircumstances, it is “plain and obvious” that the officers’ misfeasance claim would not succeed. [62] I would allow the appeal and grant the Attorney General’s motion to strike the officers’ claim, with costs. The following are the reasons delivered by Côté J. (dissenting) — TABLE OF CONTENTS ParagraphI. Overview 63II. Context 68III. Decisions Below 109A. Ontario Superior Court of Justice, 2017 ONSC 3683 (Stinson J.) 109B.

Court of Appeal for Ontario, 2019 ONCA 311, 56 C.C.L.T. (4th) 1 (Lauwers,Huscrosft and Trotter JJ.A.) 111 IV. Issues 113V. Analysis 114A. Introduction 114B. Policy Considerations 125(1) Core Prosecutorial Discretion 126(2) Significance of the Interests at Stake 132(3) Lack of Meaningful Alternative Remedies and Accountability Mechanisms 140(4) Public Confidence in the Office of Prosecutor and in the Police 148C. Liability Threshold for Misfeasance in Public Office 159D. Application 167VI. Conclusion 173 I. Overview [63] The rule of law requires equality before the law. In the seminal case of Roncarelli v.

Duplessis, (SCC), [1959] S.C.R. 121, our Court enforced this principle against the head of a provincial government — a premier. The Court heldhim liable for damages, his conduct having been characterized as malicious by Justice Rand in his leading opinion in that case (p. 141).Roncarelli is emblematic of a conception of the rule of law that is incompatible with absolute immunities. As this conception of the ruleof law took hold in the second half of the 20th century, judges and legislators began to view absolute immunities with suspicion and togradually erode them. Prosecutorial immunity is one example of this.

So far, this Court has recognized two exceptions to prosecutorialimmunity in favour of accused persons: the torts of malicious prosecution and wrongful non-disclosure. Yet to this day, prosecutors stillhave absolute immunity from claims brought by third parties to criminal proceedings. [64] The respondent police officers submit that this immunity does not apply to their claims for misfeasance in publicoffice and that their claims should be allowed to go forward.

They allege that they have suffered harm to their careers, reputations andmental health as a result of prosecutorial misconduct, which led to judicial findings of police brutality and torture being made againstthem. Their case cries out for a remedy. After having a hand in this wreck, the judiciary cannot stand idly by and tell the respondents toseek vindication elsewhere. To do so would bring the administration of justice into disrepute. [65] Like the courts below, I am of the view that prosecutorial immunity does not apply in this case.

Policy considerationssuch as the tactical nature of the decisions involved, the significance of the interests at stake, the lack of meaningful alternative remediesand accountability mechanisms, and public confidence in the office of prosecutor and in the police all weigh in favour of piercing theimmunity, although in a limited way. Most importantly, police officers who, like the respondents, face findings of police brutality ortorture as third parties to a criminal proceeding, are in a position similar to that of accused persons.

Although not formally charged, suchpolice officers are, in essence, convicted of serious criminal offences without having had their day in court.

Such serious findings maythus have a deleterious effect on their right to liberty and security, their right to dignity and a good reputation, and their mentalhealth — just like criminal charges may have on an accused person. [66] Thus, prosecutorial immunity does not apply to claims for misfeasance in public office brought by police officers whosuffered harm as a result of deliberate and unlawful conduct by prosecutors in connection with serious criminal allegations of policemisconduct.

The liability threshold for misfeasance in public office is high enough to avoid a chilling effect on the exercise ofprosecutorial discretion. It is also high enough to avoid diverting prosecutors away from their public duties so that they can respond tolawsuits concerning their exercise of discretion.

However, in accordance with the cautionary note sounded by Moldaver J. in Henry v.British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, at para. 33, that “the prudent course of action is to address newsituations in future cases as they arise”, these reasons should not be read as displacing the immunity whenever a litigant brings a claimfor misfeasance in public office. Not all victims of prosecutorial misconduct are in a position equivalent to that of an accused person, asthe respondent police officers are. [67] For the following reasons, I would dismiss the appeal.

Prosecutorial immunity does not apply to the police officers’claim for misfeasance in public office, and the officers plead all the essential elements of the tort in their statement of claim. II. Context [68] This appeal concerns a motion to strike filed by the Crown. The test on a motion to strike is well established(Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, at p. 980). This Court must assume that the facts alleged by

the respondent police officers in their statement of claim are true. Our task is to determine whether, on that basis, it is plain and obviousthat the statement of claim discloses no reasonable cause of action and should be struck out as a result. Neither the unique nature of thefacts underlying the respondents’ action nor the strength of the Crown’s defence is sufficient reason for refusing to allow their claims tomove forward (Hunt, at p. 980).

Their claim can be struck out only if it is certain to fail. [69] Given that the allegations made by the police officers must be taken to be true, some of the following facts are basedon their statement of claim. Those allegations will have to be proved at trial if the officers are to succeed.

Some other facts have alreadybeen established in previous criminal proceedings. [70] Randy Maharaj (“Maharaj”) and Neil Singh (“Singh”) were charged with having committed very serious crimes, i.e.,armed robbery and forcible confinement, at a company called Crane Supply on February 9, 2009. [71] Singh held a position of trust at Crane Supply. He was an employee of the company and had a close relationship withhis supervisor, Mohammed Sheikh. [72] On the night of the robbery, Mr. Sheikh was the night supervisor at Crane Supply. Singh was working in the yard thatnight.

He punched out at 10:22 p.m. and left the premises. Singh knew that his supervisor was working alone late that night, and hedeliberately took advantage of the vulnerable position his supervisor was in. Minutes later, Singh came back to the yard with hisaccomplice — not to work, but to rob his employer at gunpoint. He had in his line of sight a shipment of copper pipes valued at almost$350,000. [73] While doing paperwork in his office, Mr. Sheikh heard a loud bang and his office door was kicked open hard. Amasked man pointed a black handgun at him and ordered him to get on his knees. Mr.

Sheikh’s hands and legs were then zip-tied, andhis eyes were covered with duct tape. This man, who suffered from a heart condition, was left bound and blindfolded on the floor of hisoffice. [74] Meanwhile, the robbers searched his office and loaded the shipment of copper pipes worth almost $350,000 onto alarge truck. This was a sophisticated robbery. The robbers needed to know how to operate the forklift which had a special attachmentdesigned for Crane Supply and how to mobilize a truck large enough to transport the copper pipes.

They also had to know the warehousesecurity system inside out and the whereabouts of the employees working that night. [75] After the robbers left, Mr. Sheikh managed to untie himself and call the police. These events had a profound impacton Mr. Sheikh. Because of the trauma he suffered, he was unable to remain in his supervisory position and was transferred to a positionin the warehouse. [76] In June 2009, the respondent police officers — Sergeant Jamie Clark, Detective Sergeant Donald Belanger andDetective Sergeant Steven Watts — arrested Maharaj and Singh for armed robbery and forcible confinement.

At the time of the arrest,they were members of the Hold Up Squad of the Toronto Police Service. They are experienced police officers with over 70 cumulativeyears of experience, and they have held various positions in other specialized units. [77] The police officers found evidence that Singh and Maharaj had been in close communication on the night of therobbery. Maharaj had texted the words “Zip ties” to Singh 15 minutes before Mr. Sheikh called the police, and Maharaj had been in thevicinity of the Crane Supply yard on that particular night.

Singh provided an exculpatory video statement that has been shown to be false;Maharaj provided a video statement inculpating himself and Singh. The falsity of Singh’s exculpatory statement has been demonstrated.Singh was convicted, and the application judge analyzed the reduction in sentence on the basis of Singh’s false exculpatory statement. [78] Following their arrest, Maharaj and Singh were remanded in custody. During their bail hearing, counsel for Maharajasked the court to put on the record the injuries his client had allegedly suffered during the arrest.

He indicated to the court that Maharajhad “visible bumps and scratches” under his ear. However, according to the police officers, no suggestion was made that Maharaj hadsuffered any serious rib injury as a result of an assault committed by them during his interrogation. [79] After the bail hearing, Maharaj was detained at the Maplehurst Detention Centre. While at Maplehurst, Maharaj nevercomplained of any rib injury.

The officers submit that only bruises to his upper arm were noted in his medical records at Maplehurst.The medical practitioners at Maplehurst are adamant that if Maharaj had complained about a rib injury, they would have recorded it inthe context of their routine medical examination of any new inmate. [80] Between July and November 2010, the two accused had their preliminary inquiry. The Crown Attorney at thepreliminary inquiry called the three police officers as witnesses.

According to the police officers, counsel for Maharaj questioned themabout their potential involvement in an assault on his client during the arrest, but he did not otherwise challenge the voluntariness of hisclient’s inculpatory video statement. The officers state that, under oath, they vehemently denied the allegations. Maharaj and Singh werecommitted to stand trial. Crown Attorney Sheila Cressman (“Trial Crown”) was assigned the carriage of the prosecution. [81] In advance of the trial, Maharaj’s counsel brought an application to stay the proceedings against his client and toexclude his client’s confession.

Maharaj accused the police officers of having committed a criminal offence by brutally assaulting him toextract an inculpatory statement. The police officers contend that Maharaj’s allegations were false. More specifically, Maharaj allegedthat, during the interrogation, Sgt. Clark “grabbed him out of his chair and dragged him to an intermediary room and threw him on theground” (R. v. Singh, 2012 ONSC 2028 (“decision on Singh’s stay application”), at para. 32 ). Then, Sgt.

Clark allegedly “camedown on top of him and pinned him down on the ground and began punching him in the ribs for what Maharaj said felt like a lifetime”(para. 32). To add to the brutality, Det. Sgt. Watts supposedly tried to step on Maharaj’s testicles while he was on the ground beingpunched by Sgt. Clark.

Maharaj claimed that he had provided an inculpatory statement to make the assault stop. [82] To support Maharaj’s version of the events, his counsel provided the Trial Crown with his medical record fromMaplehurst documenting bruises to his upper arm, an X-ray showing an acute fracture of his ribs, and the bail hearing transcript. Thepolice officers argue that this was the first time — on the eve of the trial and more than two years after the events — that Maharaj

alleged that he had suffered a serious rib injury as the result of an assault by the officers during his interrogation. At the bail hearing andthe preliminary inquiry, Maharaj had previously alleged only that he had suffered bumps and scratches during the arrest. [83] The officers add that the Trial Crown then consulted Dr. Moss, who had viewed the X-ray. Dr. Moss confirmed theexistence of a rib fracture but told the Trial Crown, in no uncertain terms, that a patient with such a rib fracture would experienceexcruciating pain if he or she made any movements with the upper body or arms. Allegedly, Dr.

Moss opined that it was possible that theinjuries could have occurred on the day of the arrest, but the Trial Crown did not ask him any further questions to determine if the injurycould have occurred at another time. The Trial Crown also apparently did not ask him to review Maharaj’s videotaped statement from theday of the arrest, which clearly showed that Maharaj had no difficulty lifting his arms and moving his upper body. [84] The Trial Crown consulted with a senior Crown Attorney, Frank Armstrong (“Senior Crown”).

They agreed thatMaharaj’s inculpatory statement would be inadmissible because the Crown would be unable to prove beyond a reasonable doubt that itwas voluntary in view of the assault allegations. Accordingly, the Senior Crown stayed the charges against Maharaj. However, no stay ofproceedings was entered in respect of Singh. The latter was subsequently found guilty at trial. [85] Following the stay of the proceedings against Maharaj, Singh filed an application under the Canadian Charter ofRights and Freedoms seeking a stay of his conviction, as well.

Had Singh not sought a stay, he would be facing a mandatory minimumfive-year sentence for the armed robbery of which he had been convicted. The respondent police officers maintain that the allegations ofpolice brutality made by Singh in support of his Charter application were false, as were those made by Maharaj. In his affidavit andtestimony, Singh alleged that he, too, had been a victim of police brutality. He claimed that Sgt. Clark had assaulted him three times inthe presence of Det. Sgt. Watts during his interrogation. Singh alleged that Sgt.

Clark had struck him behind his head, put a knee into hisribs, strangled him, slammed his head against the wall and hit his back with a closed fist. Singh added that the assaults had left himbreathless, on the verge of a blackout and with the inside of his lower lip bleeding. The attack was allegedly so brutal that Singhimplored Sgt. Clark to “[j]ust kill me man” (decision on Singh’s stay application, at para. 23; R. v. Singh, 2012 ONSC 4429 (“Singh’ssentencing decision”), at para. 61 ).

Nevertheless, Singh supposedly exhibited strength and resilience and refused to provide theinculpatory statement the police officers were trying to extract from him. [86] Before Singh’s Charter application was heard, the Trial Crown had allegedly assured Det. Sgt. Watts that all threeofficers would be called as witnesses to deny the allegations, as they had had the opportunity to do at the preliminary inquiry.

However,at the last minute, the Trial Crown decided not to adduce any evidence to contradict Maharaj’s and Singh’s testimony, despite theseriousness of the criminal allegations made against the police officers. Det. Sgt. Watts says that he urged her to change her position butshe would not budge. She ignored the officers’ concerns about how it would adversely affect them and airily conceded the existence ofthe assaults and the Charter breach.

The Trial Crown thus limited herself to cross-examining Maharaj and Singh and arguing in favourof a reduction in Singh’s sentence as the appropriate Charter remedy, instead of a stay. [87] During the hearing of the Charter application, Thorburn J. expressed her surprise and discomfort at the absence of thepolice officers as witnesses. The Trial Crown was quite dismissive when asked what motivated her decision not to call them: THE COURT: What do I do with the fact that none of these officers testified? . . . . . . I have Mr.

Singh’s . . . testimony, and maybe I believe him and maybe I don’t, but . . . if there were some officers who said, “Well,we know nothing, I’m sorry, I tapped him on the shoulder, I should never have tapped him on the shoulder, and gosh, darn, look at this,this is terrible,” nobody showed up. [THE TRIAL CROWN]: Well, the Crown didn’t call anyone. THE COURT: Well, yes. [THE TRIAL CROWN]: And what that means is that the evidence is uncontradicted other than Your Honour of course in accepting thatevidence is required to look at internal and external consistencies.

So, that’s what I’m going to be focusing on. [Emphasis added.] (A.R., vol. III, at p. 342) [88] Earlier, Thorburn J. had specifically asked the Trial Crown whether “there [was] any sort of suggestion that [theinjuries] may have come about in some other way” than at the hands of the police (A.R., vol. III, at p. 297). She respondedstraightforwardly: “There is no evidence that it occurred in any other way” (p. 297 (emphasis added)). Further, she confirmed that theassault had primarily been Sgt.

Clark’s doing. [89] Ultimately, Thorburn J. had no choice but to conclude that the police officers had indeed assaulted Maharaj andSingh, given the Crown’s decision to adduce no contradictory evidence and to concede the allegations. However, she refused to order a

stay of the proceedings against Singh and preferred instead to reduce his sentence by one year as a remedy for the “police brutality” he had suffered (decision on Singh ’s stay application, at para. 49). [ 90 ] Thorburn J. characterized the police officers’ behaviour as “thoroughly reprehensible” and as “police brutality” (decision on Singh ’s stay application, at paras. 49-50).

She also vigorously condemned that behaviour: This significant reduction in sentence is necessary to reflect my very deep concern and condemnation of those who, being selected to uphold the law and preserve justice, assault those entrusted to their care and control . This reduction in Singh ’s sentence does not and should not serve as a substitute for further investigation into and punishment of those involved in this reprehensible conduct. [Emphasis added.] ( Singh ’s sentencing decision, at para. 64) [ 91 ] The police officers submit that those findings had a dramatic impact on them.

In her reasons, Thorburn J. urged the Crown, on two separate occasions, to ensure that there would be a thorough investigation into the police brutality (decision on Singh ’s stay application, at para. 52; Singh ’s sentencing decision, at para. 64). This triggered additional inquiries by the Special Investigations Unit (“SIU”) and the internal Toronto Police Service Professional Standards Unit (“TPSPS Unit”).

Thorburn J.’s findings of assault were also widely reported in the media, which allegedly caused serious harm to the police officers’ reputations and mental health. [ 92 ] The SIU did not complete its investigation of the alleged assaults. Since Maharaj refused to cooperate, the SIU withdrew its mandate and terminated its investigation without reaching a definitive conclusion. However, the TPSPS Unit continued its investigation despite the refusal of Maharaj and Singh to cooperate. [ 93 ] After Thorburn J. released her sentencing decision, internal investigators for the TPSPS Unit provided Dr.

Moss with a copy of Maharaj’s videotaped statement showing him raising and moving his arms. This being inconsistent with an acute rib injury, Dr. Moss opined that the injury must have been suffered before the day of the arrest and had already healed in the meantime. In light of that revelation and following a thorough investigation of the evidence available, the TPSPS Unit concluded that the allegations “cannot be substantiated” (A.R., vol. III, at p. 421). [ 94 ] The Trial Crown’s decision to concede the allegations of assault is particularly striking.

From the transcripts, it is quite obvious that neither Thorburn J. nor the Trial Crown found Singh or Maharaj to be credible witnesses. Moreover, the police officers emphasize that there was little other convincing evidence supporting their testimony. [ 95 ] Indeed, the Trial Crown said that she had “some serious reservations” about Singh ’s “credibility in terms of the extent of the assault” (A.R., vol. III, at p. 299). She suggested that Singh was “embellish[ing] things” and “seriously exaggerating” (pp. 350 and 353).

In the same vein, Thorburn J. was quick to underline that Maharaj was not a credible witness because his testimony was tainted by lies and evasiveness: THE COURT: What do I do about Mr. Maharaj and some of the evidence that he gave that was really not very credible . I mean, he’s admitted that he lied before . . . . . . . He was either lying today or he was lying before, because what he said was different than what he said in the prior occasion . . . . . . . . . And then his comment about “Oh, I have no idea about zip ties. It depends on what happened before.” . . . . . . “Well, there was no message before.

So what I am suppose[d] to take from that? Oh, well, just, you know, I always send messages saying zip ties,” come on, I mean . . . . . . . . . So how credible? What do I do with the fact that he’s not the most credible witness? [Emphasis added.]

(A.R., vol. III, at p. 318) [ 96 ] Some other aspects of their testimony were also hardly believable, if not grotesque. For example, shortly after he was arrested, Singh told Det. Sgt. Watts that he did not know Maharaj, but he later testified, in support of his Charter application, that he knew him and socialized regularly with him while having drinks. He claimed not to have lied to the police. He said that Det. Sgt.

Watts’ “question was asked in the context of whether he knew another Crane Supply employee, so he replied that he did not know Maharaj as there was no employee named Maharaj” (decision on Singh ’s stay application, at para. 17). [ 97 ] As demonstrated above, Singh is a person who did not hesitate to abuse the trust placed in him by his former employer for his own benefit, so his testimony had to be analyzed very carefully as well as his motives for bringing his Charter application. Allegations of assault, if b

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