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CRIMINAL LAW - Crown prosecutor

Friday, April 30, 2021 @ 4:49 PM  


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Appeal by the Attorney General of Ontario from a judgment of the Ontario Court of Appeal that affirmed the dismissal of the Attorney General’s motion to strike the respondents’ misfeasance claim. The respondents, three police officers, sued the Attorney General of Ontario for negligence and misfeasance in public office. Their claim was based on the alleged misconduct of Crown prosecutors in the way they dealt with stay applications brought by two accused who claimed the police officers assaulted them during arrest. A subsequent internal review found the allegations of misconduct against the police officers were not substantiated. The Attorney General had moved to strike the respondents’ claim for failing to disclose a cause of action. The lower courts struck the respondents’ negligence claim but allowed the misfeasance claim to proceed, finding Crown attorneys were not immune from civil liability for misfeasance in public office.

HELD: Appeal allowed. Allowing police officers to initiate actions for misfeasance for decisions made in the course of criminal proceedings would raise profound risks to the rights of the accused and to prosecutorial independence and objectivity and would undermine the integrity of the criminal justice system. Making prosecutors liable to police officers for misfeasance was fundamentally incompatible with their mutually independent relationship. Prosecutors did not owe specific legal duties to the police with respect to how they carried out a prosecution. The public interest argued against, not in favour of, piercing prosecutorial immunity. Since prosecutorial immunity was preserved, it was plain and obvious the officers’ misfeasance claim would not succeed. Dissenting reasons were provided.

Ontario (Attorney General) v. Clark, [2021] S.C.J. No. 18, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., April 30, 2021. Digest No. TLD-April262021011-SCC