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

Court of Appeal Upholds Substantial Damage Award Against Durham Police

In a decision released this week - Nissen v. Durham Regional Police Services Board, 2017 ONCA 10  - the Court of Appeal for Ontario upheld a trial decision which awarded a woman substantial damages for "emotional and psychological injury"  against the Durham Police Force for what she pleaded was “breach of informer privilege”.   

 

The plaintiff lived with her husband and two children on a quiet street in Whitby, Ontario.  On occasion, the plaintiff asked the teenaged son of one of her neighbours to babysit her children.  One day when the plaintiff asked another neighbour to babysit, her usual babysitter became angry.  The plaintiff was disturbed by what she regarded as his irrational and frightening behaviour.  The plaintiff subsequently learned from another neighbour that the babysitter had broken into the neighbour’s home, stolen guns, and with his brother had taken the guns to school and threatened students.   

 

The plaintiff decided that she would inform the police but did not wish to have her name associated with any investigation.  She was put in touch with Officer Liepsig of the Durham Regional Police.  Officer Liepsig offered to come to her home.  The plaintiff told him that she felt unsafe as the people that they were going to talk about lived across the street.  The plaintiff emphasized to Officer Liepsig that she did not wish to be identified because she was frightened of the babysitter and his brother.  Officer Liepsig promised her that her identity would not be disclosed.  The officer told her that if she came to the police station to discuss the matter he would keep her identity secret and she would remain totally anonymous. 

 

The plaintiff was given further assurances of confidentiality when she attended at the police station.  Officer Liepsig took notes but did not disclose to the plaintiff that the interview was being recorded on videotape. 

 

After the interview, the babysitter and his brother were arrested.  Officer Liepsig was reassigned and the task of preparing the Crown brief was assigned to other officers who were unaware that the plaintiff had been given any assurance of confidentiality.  The plaintiff later learned that her identity and her videotaped interview had been included in the Crown’s disclosure to the accused’s lawyers.  This disclosure provoked an angry reaction from the parents of the accused.  The plaintiff testified that the father of the accused drove his truck at her causing her to leap from the sidewalk and onto the grass behind a tree to avoid being hit by the truck. 

 

The plaintiff immediately called Officer Liepsig to report the incident and to express her concern that a mistake had been made and that her identity had been disclosed but he did not return her call.  The plaintiff’s husband spoke to the father of the accused who expressed his anger and intention to “pay the plaintiff back” for having gone to the police.  Other members of the police followed up, but not in a meaningful way.

 

The plaintiff and her husband testified that following the truck incident, both parents of the accused subjected them to on-going harassment.  The harassment became unbearable and ultimately the plaintiff and her husband decided to sell their home and move.   

 

The plaintiff complained of feeling hopeless and depressed following these events and has been diagnosed with post-traumatic stress disorder.  A psychiatrist gave evidence of the significant change in her behaviour and enjoyment of life that she had provided to her family.

 

At trial, the judge found that the police owed a common law duty not to disclose the identity of an informer and that even if the duty was not absolute, reasonable care had not been taken in the circumstances.   He awarded the plaintiff general damages for emotional and psychological injury as a result of the post-traumatic stress disorder.  He found that the failure of the police to act after they learned of the neighbours’ harassing behaviour was an aggravating factor.  The trial judge fixed the general damages at $345,000.  He also awarded Family Law Act damages for loss of guidance, care and companionship in the amount of $65,000 to the plaintiff’s husband and $25,000 to each child.

 

The Police Board appealed to the Ontario Court of Appeal. 

 

The Court of Appeal held that the trial judge’s finding that Officer Liepsig had promised confidentiality to the plaintiff was supported by the evidence, attracted deference and there was no basis to overturn it.

 

As to the issue of damages, the Court of Appeal held that, in its view, the case could and should be decided as a civil claim for damages for breach of confidence.  The fundamental point was that, on the findings of the trial judge, Officer Liepsig had made a promise of confidentiality and anonymity to the plaintiff in exchange for the information that she provided.  The trial judge found that the promise was breached and that the plaintiff had suffered damages as a result.  Those findings brought the case squarely within the long-recognized cause of action for breach of confidence and the plaintiff was accordingly entitled to recover on that basis.   

 

The police had argued that the case did not meet the requirements for breach of a duty of informer privilege in criminal law.  However, the Court of Appeal held that there was no reason to qualify the right to sue for breach of confidence by adding additional elements that would take the case into a criminal law regime.  To do so would put an ordinary citizen interacting with the police in an impossible situation.  The plaintiff had no way of determining whether the police could obtain the information she was offering from another source.  Nor did she have any way of gauging what the police considered to be the risk of harm she faced should her identify be disclosed.  She explained her fear of harm to Officer Liepsig and that fear ultimately proved to be well-founded.  She was entitled to rely on Officer Liepsig’s promise of confidentiality in exchange for her cooperation in giving him the information.

 

The court disagreed with the submissions made by the police that the trial judge had made reference to awards made in cases that were not analogous; that the plaintiff suffered from a pre-existing condition, i.e. that she had already experienced anxiety and distress before her identity was revealed; and that the trial judge should not have awarded aggravated damages.   The court held that it was open to the trial judge to find that the failure of the police to take any meaningful steps to protect the plaintiff and her family from the harm they were suffering as a result of the wrongful disclosure of her identity did aggravate the damage she suffered.  The police had promised the plaintiff confidentiality in order to gain her cooperation.  Their duty to her did not cease once they had broken that promise.   The promise they made as police officers included a duty to protect the plaintiff from the consequences of wrongful disclosure.

Regards,

Blair  

Police Involved in Fatal Shootings Not Entitled to Consult Counsel Before Making Notes

This case concerns whether police officers, who are involved in fatal shootings of civilians, are permitted by the Police Services Act (the "Act") and the Special Investigations Unit regulations (the "Regulation") to seek the assistance of legal counsel before completing their notes on the shootings. 

 

In two independent fatal incidents, Douglas Minty and Levi Schaeffer were shot by the police.  Minty was shot dead by a Constable of the Ontario Provincial Police ("OPP") after he ignored the officer's command to drop a knife he was carrying.  Schaeffer was shot and killed by an Constable of the OPP when he also did not comply with a command to drop a knife.  In both cases, the officers were instructed by superiors to refrain from making their police notes until they had spoken with legal counsel.  The families of the two deceased brought an application before the Superior Court of Ontario seeking an interpretation of various provisions of the Act and "conduct and duties of police officers" respecting investigations in the Regulation.  The relevant issue raised by the families for the purposes of the appeal was whether the legislative scheme of the Act and the Regulation permitted the officers to consult with counsel before completing their notes.

 

The application was dismissed by the court on procedural grounds.  The Ontario Court of Appeal dealt with the matter on its merits and held that the Regulation did not permit police officers to seek counsel's assistance to complete their notes.  The Court of Appeal found that the Regulation did enitle the officers to receive basic legal advice as to their nature of their rights and obligations.  The police officers appealed that finding to the Supreme Court of Canada.  The Director of the Special Investigations Unit ("SIU") cross-appealed, arguing that police officers are not entitled to legal advice, basic or otherwise, prior to completing their notes. 

 

The majority of the Supreme Court of Canada dismissed the police officers' appeal and allowed the cross-appeal of the SIU.

 

Justice Moldaver wrote the decision of the majority of the court.  He held that permitting police officers to consult with counsel before preparing their notes is contrary to the very transparency that the legislative scheme of the Act and the Regulation aims to promote.  Justice Moldaver held that police officers are entrusted by the public with significant legal authority, including in some circumstances, the authority and power to use deadly force against their fellow citizens.  The "indispensable" foundation for such authority is the community's trust in the police.  Such trust can be tested when a member of the community is killed by the police.  The SIU is charged with the task of independently and transparently determining what happened when the community's trust in the police is at stake.  It is imperative that the investigatory process be, and appear to be, transparent. 

 

The majority of the court held that under the Act and the Regulation, a police officer who witnessed or participated in an incident which is being investigated by the SIU is not permitted to speak with a lawyer before preparing his or her notes concerning the incident.  While officers in their capacity as ordinary citizens may be free at common law to consult with counsel, the court was considering them in their professional capacity as police officers who are involved in SIU investigations.  In those circumstances, the Regulation governs.  It comprehensively sets out their rights and duties including their entitlement to counsel.  Justice Moldaver held that so long as police officers chose to wear a badge they must comply with their duties and responsibilities under the Regulation, even if this means at times having to forgo liberties they would otherwise have enjoyed as ordinary citizens. 

 

He held the following:

 

1.    Consultation with legal counsel at the note-making stage is contrary to the dominant purpose of the legislative scheme because it risks eroding the public confidence that the SIU process is meant to foster.  Allowing police to consult with counsel at the note-making stage creates an appearance problem.  A reasonable member of the public would naturally question whether counsel's assistance at the note-making stage was sought by officers in their self-interest to protect themselves and their colleagues from the potential liability of an adverse SIU investigation; 

 

2.    The legislative history demonstrated that the Act was never intended to create a free standing entitlement to consult with counsel that extended to the note-making stage; and

 

3.    Consulting with counsel at the note-making stage impinges on the ability of police officers to prepare accurate, detailed and comprehensive notes in accordance with their duty under the Regulation.  Police officers have a duty to prepare accurate, detailed and comprehensive notes as soon as practicable after an incident.  Permitting officers to consult with counsel before preparing their notes risks having the focus of the notes shift away from the officer's public duty towards his or her private interest and justifying what has taken place.       

 

The case is indexed as Wood v. Schaeffer 2013 SCC 71.

 

Regards,

 

Blair

Issue Estoppel - its not over until the Supreme Court says its over

The Supreme Court of Canada recently tackled the difficult issue of issue estoppel - again.

 There has long existed a tension between a litigant's desire for finality and the often competing requirement that a judge or administrative tribunal exercise its discretion to ensure that no injustice results. In a close (4 to 3)  decision, the Supreme Court of Canada came down in favour of permitting the exercise of discretion by decision makers. This decision will undoubtedly result in more litigation and see many more litigants apply for stays of proceedings on the basis of issue estoppel.

In the case of Penner v. Niagara (Regional Police Services Board), Penner was arrested for disruptive behaviour in an Ontario courtroom. He filed a complaint against two police officers under the Police Services Act ("PSA") alleging unlawful arrest and unnecessary use of force. He also started a civil action claiming damages arising out of the same incident.

The Niagara Chief of Police appointed a hearing officer under the PSA who found the police officers not guilty of misconduct and dismissed Penner's complaint. The hearing officer's decision was reversed on appeal by the Ontario Civilian Commission on Police Services on the basis that the arrest was unlawful. On further appeal, the Ontario Divisional Court concluded that the officers had legal authority to make the arrest and restored the hearing officer's decision. The police officers then successfully moved in the Ontario Superior Court of Justice to have Penner's claims in the civil action struck on the basis of issue estoppel.

While finding that several factors weighed against the application of issue estoppel, the Ontario of Appeal concluded that applying the doctrine would not work an injustice in this case and dismissed Penner's appeal.

In allowing Penner's appeal and holding that his civil action could proceed, the majority of the Supreme Court of Canada held as follows:

The doctrine of issue estoppel allows for the exercise of discretion to ensure that no injustice results. There must be a case-by-case review of the circumstances to determine whether it would be unfair or unjust to apply issue estoppel or whether the preconditions for applying it have been met. In the circumstances of this case it was unfair to Penner to apply issue estoppel.

While finality is important to the judicial system unfairness in applying issue estoppel may still arise. In this case there was a significant difference between the purposes, processes or stakes involved in the two proceedings. Where the legislative scheme contemplates multiple proceedings and the purposes of those proceedings are widely divergent, to apply the doctrine might upset the parties legitimate and reasonable expectations and might also undermine the policy goals of the administrative proceedings. This would result in encouraging more formality and protraction in proceedings or discouraging access to the administrative proceedings all together. In each case, the court has to consider the parties' reasonable expectations about what is at stake in the proceedings or the fundamentally different purposes between them.

In this case, nothing in the legislative text gave rise to an expectation that the disciplinary hearing would be conclusive of Penner's legal rights in a civil action: the standards of proof required and the purposes of the two proceedings are significantly different; and unlike a civil action, the disciplinary process provided no remedy or costs for Penner.  In short, the Court of Appeal did not take into account important considerations which included the procedural protections afforded to Penner by the administrative process.

Finally, applying issue estoppel had the effect of using the decision of the Chief of Police's designate to exonerate the Chief in the civil action and was therefore a serious affront to basic principles of fairness.

Not surprisingly, the three dissenting judges held that the more important principle in the case was the finality of litigation which in their view assured the fairness of the justice system in Canada. The dissenting judges held that the principles underlying the doctrine of the issue estoppel - that there should be an end to litigation - and that the same party should not be harassed twice for the same cause, are core principles which focus on achieving justice and preventing injustice by preserving the finality of litigation.

The dissenting judges held that in this case, issue estoppel should apply. The difference between the standard of proof required to establish misconduct under the PSA and that required in a civil trial were irrelevant in this case. The hearing office (appointed by the Chief of Police) made unequivocal findings that there was virtually no evidence to support Penner's claims. That means that there was no evidence to support his claims whatever standard of proof was applied and a civil action would inevitably yield the same result.

The dissenting judges referred to the arguments of potentially inconsistent results in re-litigating matters to support their conclusion.

Regards,

Blair

Police need to obtain wiretap authority to access future text messages.

The Supreme Court of Canada recently released a decision which held that the police could not rely on the general warrant provisions of the Criminal Code (Code) to compel Telus Communications Company (Telus) to provide them with copies of future text messages sent or received by two Telus subscribers. Rather,  if the police wanted to obtain access to these text messages, they would have to obtain a specific wiretap authorization under Part VI of the Code.

Unlike most mobile telephone providers, Telus routinely makes electronic copies of all text messages sent or received by its subscribers and stores them on a computer database for a brief period of time.   In the case decided by the court, the police obtained a general warrant which required Telus to produce on a daily basis any future messages which would be sent or received during a two week period.  Telus applied to quash the general warrant arguing that it constituted an interception of private communications and therefore required authorization under the wiretap authorization provisions in Part VI of the Code.

The Ontario Superior Court of Justice dismissed Telus' application and the appeal went directly to the Supreme Court of Canada.  The majority of the court allowed the appeal and ordered that the general warrant be quashed.

Justice Abella wrote that, "The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI of the Code. The general warrant provision of the Code should be broadly construed to ensure that it is not used to circumvent the more specific or rigorous pre-authorization requirements for warrants, such as those found in Part VI". Justice Abella then embarked on interpreting the meaning of the word "intercept" and held that the word must be broadly interpreted and must focus "on the acquisition of informational consent and the individual's expectation of privacy at the time the communication was made".

Finally, the learned judge held that text messages are private communications and even if they are stored on a service provider's computer, their production requires authorization under Part VI of the Code. If Telus did not maintain its computer database there is no doubt that the police would be required to obtain an authorization under Part VI of the Code to secure the prospective production of text messages. Most service providers do not routinely copy text messages to a computer database. Accordingly, if the police wanted to target an individual who used a different service provider, they would have no option but to obtain wire tap authorization under Part VI of the Code to compel the production. This creates a "manifest unfairness" to individuals who are unlikely to realize that their choice of telecommunication service provider can dramatically effect their privacy. Using Telus should not deprive it subscribers of the protection of the Code to which every other Canadian is entitled.

Regards,

Blair