SCC says Police can't sue Crown for its Prosecution of a Case

Ontario (Attorney General) v. Clark, 2021 SCC 18 

This Supreme Court of Canada decision was released on April 30, 2021. The Court held that Toronto police officers could not maintain an action against Crown prosecutors for “misfeasance in public office” because of the Crown’s handling of the prosecution of a case.

Background

In June 2009, three Toronto police officers arrested two suspects in connection with a complaint of armed robbery and forcible confinement. Both men were charged and were committed to stand trial. Prior to trial, one of the accused 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.  The accused claimed  that the police had beaten  him during the arrest and caused him a serious rib injury. The Assistant Crown Attorney and a senior Crown Attorney agreed that the accused’s confession would not be admissible and the charges against him were stayed. The jury trial against the other suspect proceeded and he was convicted. After his conviction, the second man filed a stay application alleging that the police officers had assaulted him as well during his arrest. Both accused testified on the stay application. The Assistant Crown Attorney did not call the officers to give evidence and conceded that the assaults had occurred. The judge accepted the evidence and reduced the second accused’s sentence.

The judge’s reasons described the assaults in detail and called the police’s  conduct “police brutality”. Those findings were reported in the news 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 the first accused declined to participate. The PSU concluded that the alleged misconduct could not be substantiated. 

The second accused appealed the judge’s decision not to stay the proceedings against him. The Court of Appeal allowed the appeal and entered a stay of proceedings noting that the Crown did not contest the evidence of the assaults. It strongly criticized the police conduct. Its findings were also reported in the media.  After the appeal, the SIU reopened its investigation and concluded that the first man’s rib injury post-dated the arrest and that the allegations against the police were not substantiated by the evidence. An OPP review concluded that the PSU investigation was thorough and there was no reason to refute its conclusion. 

The police sued the Attorney General for negligence and misfeasance committed by the Assistant Crown, the senior Crown, and the appeal Crown Attorneys. They sought general damages for negligence and misfeasance plus aggravated, exemplary and punitive damages. The police claimed to have suffered irreparable harm to their reputations and their credibility. The Attorney General moved to strike the claim for failing to disclose a cause of action. The motion judge struck the negligence claim but allowed the misfeasance claim to proceed and that decision was withheld on appeal. Only the decision as to the misfeasance claim was appealed to the Supreme Court of Canada.

The SCC Majority Decision

The Court, in an 8 – 1  decision (Justice Cote dissenting) held that the Attorney General’s appeal should be allowed and that the misfeasance claim should be struck. The majority decision was written by Justice Abella. The majority held that prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. 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 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. 

Justice Abella wrote that prosecutorial immunity advances the public interest by enabling prosecutors to make discretionary decisions in fulfillment of their profession obligations without fear of judicial or police interfering. This fulfills their quasi-judicial roles as ministers of justice. The principles underlying immunity are the prosecutor’s constitutional protected independence, the risks to objective decision-making and a concern about diverting prosecutors from their public interest duties. 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.

Allowing the police to sue the Crown for misfeasance is 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 the production in accordance with the prosecutor’s duties to the administration of justice and the accused.

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. 

The Lone Dissenter

Justice Cote, the lone dissenting judge, held that prosecutorial immunity should not apply to claims for misfeasance in public office brought by police officers, if the officers suffered harm as a result of deliberate and unlawful conduct by prosecutors.  Justice Cote held that although the protection of prosecutorial independence is constitutionally entrenched in section 7 of the Charter, the scope of prosecutorial immunity is a matter of policy. The policy concerns should not only benefit the accused persons, they should be considered in light of the particular liability threshold applicable to the tort in issue. Justice Cote embarked on a two-step analysis that she said 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 steps 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. 

Regards,

Blair

Ontario Court Gives OK For Lawyer to Sue Law Society

The Ontario Court of Appeal is permitting lawyer Paul Robson’s action against the Law Society of Upper Canada (now the Law Society of Ontario) (“LSO”) and three of its employees for malicious prosecution and misfeasance in public office to proceed.  The appeal court’s decision overturned the decision of Justice Patrick Monahan of the Superior Court of Justice on a motion to strike by the LSO.  Mr. Robson argued before the court that he is a thorn in the side of the LSO and someone at the LSO wishes to silence him.

At the motion brought by the LSO, Justice Monahan had struck Mr. Robson’s fresh as amended statement of claim, without leave to amend, and dismissed his action against the LSO and four of its employees.  This was the second time that a Superior Court judge had struck Mr. Robson’s pleading without leave to amend.   On a prior motion, Justice Firestone had struck the plaintiff’s claim for negligence and his claims for malicious prosecution and misfeasance in public office on the basis that Mr. Robson had failed to plead the full particulars of his claims as required by the Rules of Civil Procedure (“Rules”).  As a result of that motion, Mr. Robson amended his claims for malicious prosecution and misfeasance in public office and responded to the law society’s demand for particulars.  The defendants then brought a second motion to strike which was heard by Justice Monahan.  Justice Monahan held that Mr. Robson’s pleading did not respond to the directions set out in Justice Firestone’s prior order and that he had failed to provide sufficient particulars of the LSO’s improper purpose or ulterior motive necessary to ground his claims. 

On appeal, a three judge panel of the Court of Appeal agreed with Mr. Robson that Justice Monahan had erred in striking the bulk of his claim and allowed the appeal with respect to the LSO and three of the four individual defendants. 

The background to this case began in 2002 when Justice Lax presided over a trial on the issue of whether Mr. Robson had acquired shares in certain companies while he was an undischarged bankrupt.  During the course of that trial, Justice Lax made a number of factual findings against Mr. Robson including a finding that he had attempted to conceal assets and the truth relating to such assets from the trustee in bankruptcy. 

As a result of the trial judge’s findings, the LSO began to investigate Mr. Robson’s conduct in 2002 in connection with his bankruptcy proceedings.  Separately, the bankruptcy trustee brought a motion to set aside Mr. Robson’s discharge from bankruptcy on the basis that he had obtained his discharge by fraud.  The trustee relied primarily on Justice Lax’s reasons.   Justice Campbell dismissed the trustee’s motion which was appealed to the Court of Appeal.   Justice Doherty, J.A., for the Court of Appeal, found that while Justice Lax had made a finding of fraud, that finding was not binding against Mr. Robson in subsequent proceedings because it was not “necessary” to the determination of the issue before Justice Lax., i.e. namely whether Mr. Robson had acquired the shares while an undischarged bankrupt.  Further, Justice Doherty held that since Mr. Robson did not have notice that the trustee was seeking a determination that he acted fraudulently and had not fully defended the action before Justice Lax, it would be unfair to preclude him from re-litigating the issue in subsequent proceedings. 

Seven years later, in 2013, a LSO hearing panel held that Mr. Robson had engaged in conduct unbecoming a licensee.  The LSO relied exclusively on the findings made by Justice Lax as to Mr. Robson’s fraudulent and dishonest conduct.  Mr. Robson was disbarred. 

In 2015 a LSO appeal panel overturned the hearing panel’s finding of professional misconduct.  It held that the hearing panel had erred in law in precluding Mr. Robson from leading evidence and from re-litigating the factual findings made by Justice Lax because Justice Doherty’s decision in Mr. Robson’s bankruptcy proceedings was controlling.  As a result the appeal panel set aside the disbarment. 

Mr. Robson then brought the action for negligence, malicious prosecution and misfeasance in public office against the LSO and four of its employees.  The Court of Appeal set out the applicable legal principles for the torts of malicious prosecution and misfeasance.  It then referred to rule 25.06(8) of the Rules which applies where these torts are pleaded.  The rule provides:  “Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances for which it is to be inferred.”   

Essentially, Mr. Robson’s fresh as amended pleading alleged that the respondents knew that Justice Lax’s judgment was not correct and that many of the facts that she relied upon were inaccurate but that they deliberately acted contrary to Justice Doherty’s decision and deliberately precluded unfavourable witnesses in order to harass and harm him.  In his oral submissions to the Court of Appeal, but not in his pleadings, Mr. Robson says that he is a thorn in the side of the Law Society and someone at the Law Society wishes to silence him.  The Court of Appeal concluded that the elements of both torts had been sufficiently pleaded.  The facts pleaded, if true, supported the inference of an improper LSO purpose.  If true, they also pointed to a deliberate and dishonest wrongful abuse of the powers given to a public officer.   

The Court of Appeal allowed Mr. Robson’s appeal except as it related to one LSO employee,  because Mr. Robson had provided no particulars as to her role in the LSO’s investigation and prosecution.

See Robson v. The Law Society of Upper Canada, 2018 ONCA 944

Regards,

Blair