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LEGAL PROFESSION - Criminal law - Crown prosecutor

Thursday, October 03, 2019 @ 8:38 AM  


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Appeal by the police defendants from a decision striking out their crossclaim against the Crown Attorneys for negligent legal advice and breach of retainer. The respondent sued the police and Crown Attorneys involved in a murder investigation for negligent investigation, unlawful arrest and imprisonment, and intentional infliction of mental suffering after he was charged with first degree murder as a result of a Mr. Big operation. The respondent was acquitted at trial.

HELD: Appeal dismissed. It was plain and obvious that prosecutorial immunity barred the crossclaim. Imposing liability on Crown Attorneys for negligent advice provided to police in the course of an investigation and breach of retainer would engage the twin policy concerns of diversion from public duties and a chilling effect leading to defensive lawyering that gave rise to prosecutorial immunity. There was no basis upon which to treat claims brought by police differently from claims brought by individual citizens, nor was there a basis upon which to differentiate between claims arising from the pre-charge stage versus the post-charge stage. In the circumstances of this case the chilling effect policy concern included the damage that imposing liability would cause to the relationship between Crown Attorneys and the police, and the legal principles that underlay this relationship. It was important that the police were able to obtain professional legal advice on the conduct of criminal investigations. Fear of civil liability for negligent legal advice could cause Crown Attorneys to be reluctant to give advice and could also cause Crown Attorneys to veer into impermissible direction of the police. It was plain and obvious that the crossclaim did not disclose a reasonable cause of action because Crown Attorneys did not owe the police a duty of care in respect of the legal advice they provided to them. In light of their separate and independent roles, it was not reasonable for police to expect Crown Attorneys to owe them a private law duty of care in giving legal advice. Imposing a private law duty of care on Crown Attorneys in providing legal advice to police would also be at odds with the public role that Crown Attorneys played in the administration of justice. Even if Crown Attorneys did owe a prima facie duty of care to police, such a duty was negated by important residual policy considerations.

Smith v. Ontario (Attorney General), [2019] O.J. No. 4155, Ontario Court of Appeal, J.M. Simmons, M.H. Tulloch and D.M. Brown JJ.A., August 12, 2019. TLD-September302019011