Police cannot sue Crown attorneys over handling of criminal cases, SCC rules

“The Court agreed with the Attorney General of Ontario that prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution, and the tort of misfeasance in public office cannot be used as way to establish such duties.”

A variety of statutory and common law principles and rules immunize the Crown and its agents or officers from liability in civil proceedings, since Crown attorneys pursue prosecutions based solely on whether there is a reasonable prospect of conviction, and whether that prosecution is in the public interest. Exposing the Crown to liability would potentially distort these duties.

“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,” wrote Justice Rosalie Abella in her reasons for the majority.

“Since prosecutorial immunity is preserved in these circumstances, it is ‘plain and obvious’ that the officers’ misfeasance claim would not succeed.”

The case in question involved three Toronto police officers who in June 2009 arrested two men in connection with a complaint of armed robbery and forcible confinement. After they had each given statements, the accused claimed the officers had assaulted them during their arrests; the officers denied the allegations and provided the Crown Attorney with exculpatory evidence supporting their position.

Proceedings against one of the accused were stayed based on the assault claim, but the other accused was convicted of the charges, and subsequently brought a Charter application seeking to stay the proceedings against him on the ground that the respondents had assaulted him. The exculpatory evidence provided by the police was not made known to the court.

The trial judge gave a reduced sentence to the accused as the appropriate remedy to address the assault claim, which she described as “police brutality,” and the case was widely reported in the media. The accused appealed his conviction; the Court of Appeal upheld the assault finding and entered a stay of proceedings.

The police officers then commenced an action against the Attorney General for Ontario, alleging that the Crown Attorneys didn’t pursue or put forward available evidence that contradicted the assault claims of the accused, and that the Crown’s actions and omissions caused irreparable harm to their reputations. They alleged negligence and misfeasance in public office. The Attorney General brought a motion to strike their claims; the motion judge struck the claim in negligence but allowed the claim for misfeasance in public office to proceed. Both parties appealed, and the Court of Appeal upheld the decision of the motion judge.

In today’s judgment the Supreme Court noted that allowing police to sue Crown attorneys would give the appearance of a conflict of interest that would prejudice the administration of justice.

“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,” wrote Justice Abella.

“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.”

Our legal system takes the relationship between police and Crown attorneys to be one of mutual independence, says Paul Cavalluzzo, a partner in Cavalluzzo Shilton McIntyre Cornish LLP in Toronto who represented the joint interveners Canadian Association of Crown Counsel and Ontario Crown Attorneys' Association before the Supreme Court.

“They each have their important roles to play, and to let police sue Crown attorneys would suggest they were in effect policing prosecutions through the back door, by civil suits, and that would send a terrible message to the public concerning the Crown’s independence.”

The Crown, he says, has “an important discretion and independence, which should not be coloured by concerns about being sued by the police or by victims or any other third party in the system.”

Two exceptions have been recognized to Crown liability: first, where the Crown has acted with malice in the context of a malicious prosecution claim, and second, where the Crown has intentionally withheld disclosure in a criminal proceeding, which is contrary to an accused person's constitutionally protected right to full disclosure. So, the accused does have a right to sue Crown attorneys through the tort of malicious prosecution, Cavalluzzo notes.

The decision also vindicated the conduct of the individual Crown attorneys in the case, on the trial and the appeal, he says.

In dissenting reasons Justice Suzanne Côté found that a legal right to sue in malfeasance would require more accountability of Crown attorneys, who are our public officials.

“Prosecutorial immunity does 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,” Justice Côté wrote. “The liability threshold for misfeasance in public office is high enough to avoid a chilling effect on the exercise of prosecutorial discretion.”

In Cavalluzzo’s view, this fails to “truly appreciate the perception to the public of the police suing Crown attorneys,” he says. “It looks like one player in the administration of justice is suing the other player in the administration of justice . . . It would also appear to the public that police were attempting to, in effect, affect the prosecution by having these civil suits, and that’s something that our system cannot countenance.”

Counsel for the respondents was not immediately available for comment.