Smith v. The Attorney General of Ontario et al.

[Indexed as: Smith v. Ontario (Attorney General)]

Ontario Reports

Court of Appeal for Ontario

Simmons, Tulloch and D.M. Brown JJ.A.

August 12, 2019

147 O.R. (3d) 305 | 2019 ONCA 651

Case Summary

Crown — Crown Attorneys — Negligence

Plaintiff suing police for negligent investigation and other torts arising from murder investigation. Police crossclaiming against Crown Attorneys for contribution and indemnity for negligent advice. Divisional Court properly striking crossclaim. Crown Attorneys owing no duty of care to police in respect of legal advice they provide to them.

Crown — Crown Attorneys — Prosecutorial immunity

Plaintiff suing police for negligent investigation and other torts arising from murder investigation. Police crossclaiming against Crown Attorneys for contribution and indemnity for negligent advice. Crossclaim barred by prosecutorial immunity. Prosecutorial immunity applying equally to pre-trial and post-trial stage and barring claims by police as well as private citizens.

Facts

The plaintiff confessed to a murder in the course of a "Mr. Big" operation. The alleged confession was excluded at trial and the plaintiff was acquitted. He sued the police and the two Crown Attorneys who had advised them during the pre-charge stage for damages for negligent investigation, unlawful arrest and imprisonment, and intentional infliction of mental distress. The police defendants crossclaimed against the Crown Attorneys for contribution and indemnity for negligent advice and breach of retainer. The motion judge struck the plaintiff's claim against the Crown Attorneys on the basis that it was barred by common law prosecutorial immunity, but she allowed most of the crossclaim to proceed. The Divisional Court struck the crossclaim in its entirety. The police defendants appealed.

Held

The appeal should be 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 that give rise to prosecutorial immunity: the risk of diverting Crown counsel from their important public duties, and the risk of a chilling effect on the behaviour of prosecutors that leads to defensive lawyering. There is no basis upon which to treat claims brought by police differently from claims brought by individual citizens, nor is there a basis upon which to differentiate between claims arising from the pre-charge 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 underlie that relationship.

It was also plain and obvious that the crossclaim did not disclose a reasonable cause of action. Crown Attorneys do not owe the police a prima facie duty of care in respect of the legal advice they provide to them. There is not a sufficiently direct and close relationship to impose such a prima facie duty of care. The police role in investigating crime and deciding whether to lay charges is distinct and independent from the Crown's role of prosecution. That separation of police and Crown Attorney functions both safeguards police independence and helps preserve prosecutorial independence. In light of their separate and independent roles, it is 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 play in the administration of justice. In providing legal advice to police officers, Crown Attorneys owe duties to the public at large. Imposing a private law duty of care risks putting Crown Attorneys in a conflict of interest situation. Even if there is a prima facie duty of care, it would be negated by residual policy considerations: the concern that imposing a duty of care would divert Crown counsel from their important public duties; the concern that the spectre of liability would lead Crown Attorneys to lawyer defensively to protect their own interests; and the concern that imposing a duty of care would undermine the mutual independence and distinct roles of police and Crown Attorneys.

Authorities Cited

Attorney General for New South Wales v. Perpetual Trustee Co., [1955] A.C. 457; Clark v. Ontario (Attorney General), 2019 ONCA 311; Fisher v. Oldham Corp., [1930] 2 K.B. 364; Henry v. British Columbia (Attorney General), 2015 SCC 24; Nelles v. Ontario; R. v. Beaudry, 2007 SCC 5; R. v. Campbell; R. v. Metropolitan Police Commissioner, Ex parte Blackburn, [1968] 2 Q.B. 118; R. v. Regan, 2002 SCC 12; R. v. Riley; and others.

APPEAL

From the order of the Divisional Court (Warkentin R.S.J., and Swinton and Horkins JJ.) (2018), 141 O.R. (3d) 309, 2018 ONSC 993 (Div. Ct.) allowing an appeal from the order of Matheson J., [2016] O.J. No. 6163, 2016 ONSC 7222 (S.C.J.).

Counsel:

C. Kirk Boggs and Stuart Zacharias, for appellants Durham Regional Police Services Board, Leon Lynch, John Johnson Allan, Cindi Bradley, Daniel Anthony Denyer, Jim Burrows, Jeff Kennedy, David Kimmerly and Dianne Jennings.

Kevin McGivney and John Hunter, for appellants York Regional Police Services Board and YRP #1.

Sunil Mathai and Heather Burnett, for respondents The Attorney General of Ontario, Michael Hill and John Scott.

The judgment of the court was delivered by

TULLOCH J.A.:

I. Introduction

[1] This appeal arises from a "Mr. Big" operation that led to the plaintiff being charged with first degree murder. When the plaintiff was acquitted, he sued the police and Crown Attorneys involved in the investigation for negligent investigation, unlawful arrest and imprisonment, and intentional infliction of mental suffering. The police crossclaimed against the Crown Attorneys for negligent legal advice and breach of retainer. The motion judge struck the plaintiff's claim against the Crown Attorneys on the basis that it was barred by common law prosecutorial immunity, but she allowed most of the crossclaim to proceed. The Divisional Court struck the crossclaim. The issue is whether it is plain and obvious that this crossclaim cannot succeed.

[2] I would dismiss the appeal on two separate and independent grounds. First, I conclude that it is plain and obvious that prosecutorial immunity bars 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 give rise to prosecutorial immunity. There is no basis upon which to treat claims brought by police differently from claims brought by individual citizens, nor is there a basis upon which to differentiate between claims arising from the pre-charge stage versus the post-charge stage. As an additional basis to the application of these well-settled principles, I would note that in the circumstances of this case the chilling effect policy concern includes the damage that imposing liability would cause to the relationship between Crown Attorneys and the police and the legal principles that underlie this relationship.

[3] Second, I conclude that it is plain and obvious that the crossclaim does not disclose a reasonable cause of action, because Crown Attorneys do not owe the police a duty of care in respect of the legal advice they provide to them.

[4] On either ground, this crossclaim fails.

II. Facts

A. The plaintiff's claim

[5] The plaintiff, Alan Dale Smith, sued the Durham Regional Police Services Board and several officers (the "Durham appellants"), the York Regional Police Services Board and one York officer (the "York appellants"), and the Attorney General of Ontario and Crown Attorneys Michael Hill and John Scott (the "respondents") for the torts of negligent investigation, unlawful arrest and imprisonment, and intentional infliction of mental distress. The plaintiff pled the following facts.

[6] The plaintiff's neighbour, Beverly Smith, was murdered in 1974. Initial police investigations were fruitless. The police reopened the investigation in 2007 as a cold case. The plaintiff's former spouse gave a statement implicating the plaintiff, and the plaintiff was arrested and charged with the murder in March 2008. On July 31, 2008, the respondent Crown Attorney John Scott withdrew the charges on the basis that there was no reasonable prospect of conviction. However, Scott urged the police to continue the investigation using wiretaps.

[7] The Durham Regional Police Service (the "DRPS") then planned an undercover investigation that developed into a year-long "Mr. Big" operation. Agents of the respondent Attorney General supervised the investigation. Scott and the respondent Crown Attorney Michael Hill approved and submitted applications for interception warrants under Part VI of the Criminal Code that the police used to record the Mr. Big scenarios. The DRPS drew the plaintiff into low-level crime by rewarding him financially, and gradually involved him in more serious feigned crime. Ultimately, the police involved the plaintiff in a fake murder and body dump scenario and told him to give them information they could use against him to keep him in line. As a result, the plaintiff gave a confession to murdering Smith. The confession was at odds with known evidence. Still, DRPS officers arrested the plaintiff and charged him with Smith's murder on December 10, 2009. At this point, Hill and Scott ceased their involvement in the case. New Crown Attorneys assumed carriage of the prosecution and took the matter to trial. The plaintiff does not make any claim against the new Crown Attorneys.

[8] The plaintiff was incarcerated following his arrest for nearly five years. He was only released on bail in June 2014, after the trial judge excluded the alleged confessions part way through the trial. The trial judge subsequently acquitted the plaintiff after the trial Crown Attorneys elected to call no evidence.

[9] The plaintiff did not plead malicious prosecution or intentional misuse of public office against the respondents.

B. The Durham appellants' defence

[10] The Durham appellants pled that the DRPS officers involved in the investigation acted in good faith and in accordance with the standard of care. According to the statement of defence, the officers relied in good faith on the legal advice and guidance from the Crown Attorney's Office in proceeding with the investigation and concluding that they had reasonable and probable grounds to charge the plaintiff. In the event that the Crown provided improper or inadequate advice, the Durham appellants pled that it was not foreseeable to them that the investigation would violate the plaintiff's rights.

C. The Durham appellants' crossclaim

[11] The Durham appellants also crossclaimed against the respondents for indemnity and contribution for both negligent advice and breach of retainer. They pled that they consulted the Crown Attorney's Office and that it was involved throughout the Mr. Big operation and provided legal advice on the investigation. The Durham appellants had regular contact with the Crown Attorney's Office during the Crown's preparation of applications for interception warrants under Part VI of the Criminal Code. The Crown Attorney's Office never advised that any of the investigative techniques would pose an impediment to a successful prosecution and specifically approved of the body dump scenario. The Durham appellants relied on this legal advice in good faith and would not have proceeded as they did had the Crown Attorney's Office advised them otherwise.

[12] Furthermore, the Durham appellants pled that they would not have charged the plaintiff for murder but for the Crown Attorneys' legal advice. The Crown Attorney for Durham Region advised the DRPS that they could proceed to arrest the plaintiff following the confession. Senior representatives of the Ministry of the Attorney General confirmed this advice at a meeting in Toronto. The Durham appellants went ahead to charge the plaintiff in good faith reliance on this advice.

[13] The Durham appellants did not plead that the respondents acted maliciously or in bad faith or intentionally interfered with an obligation under the Canadian Charter of Rights and Freedoms.

III. The Decisions Below

D. Motion judge's ruling

[14] The respondents moved under Rule 21 of the Rules of Civil Procedure to strike out both the plaintiff's claims against them and the Durham appellants' crossclaim. The primary basis for the respondents' motion was that common law prosecutorial immunity barred both the plaintiff's claims and the crossclaim. The respondents did not seek to strike out any portion of the Durham appellants' statement of defence. Nor did the respondents object to the Durham appellants' waiver of privilege and reliance on legal advice from the respondents as a defence to the plaintiff's claim. The Durham appellants and the York appellants supported the plaintiff's resistance to this motion. The York appellants also supported the Durham appellants' resistance to the motion to strike the crossclaim and indicated their intention to bring a similar crossclaim.

[15] In reasons reported at [2016] O.J. No. 6163, 2016 ONSC 7222, 368 C.R.R. (2d) 322 (S.C.J.) ("motion judge's reasons"), the motion judge granted the motion to strike out the plaintiff's claims against the respondents and the Durham appellants' crossclaim for contribution, but allowed their crossclaims for indemnity to proceed subject to amending their pleading in certain respects.

[16] The motion judge struck out the plaintiff's claim against the respondents on the basis that it was barred by common law prosecutorial immunity. The motion judge accepted that malicious prosecution was the sole exception to the absolute immunity that Crown Attorneys enjoy at common law. She also noted that the Supreme Court had rejected a narrow definition of prosecutorial discretion in R. v. Anderson, 2014 SCC 41. The motion judge concluded that the exception to prosecutorial immunity for relief under s. 24(1) of the Charter that the Supreme Court recognized in Henry v. British Columbia (Attorney General), 2015 SCC 24, did not apply. The plaintiff did not make Charter claims against Scott or Hill and the only claim against the Attorney General was based on the Attorney General's liability for the actions of Scott or Hill. As the plaintiff did not plead malice, it was plain and obvious that the plaintiff's claims could not succeed.

[17] Significantly, the motion judge rejected two arguments that were made by the plaintiff and supported by the appellants. First, the motion judge dismissed the argument that prosecutorial immunity only applies to the post-charge stage or to matters within core prosecutorial discretion. She concluded that this was the same type of functional approach that the Supreme Court had rejected in Nelles v. Ontario. Second, the motion judge declined to accept the argument that the Supreme Court's decision in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, supported permitting claims against Crown Attorneys for negligent investigation. She concluded that Hill did not support this argument because the police do not enjoy the recognized immunity that Crown Attorneys possess.

[18] However, the motion judge declined to strike out the crossclaim for indemnity. She distinguished Nelles and the subsequent case law on prosecutorial immunity on the basis that it focused on the rights of individual citizens, not the rights of the police. At that point in time, no case had considered whether prosecutorial immunity barred a claim by police against Crown Attorneys. Accordingly, while she recognized that prosecutorial immunity could apply to the crossclaim, she found that it was not plain and obvious that it would apply.

[19] The motion judge also found that it was not plain and obvious that the respondents did not owe the appellants a duty of care when providing legal advice. She concluded that a more comprehensive factual record addressing, in particular, the potential impact of a tort claim for negligent legal advice on the important relationship between the police and Crown Attorneys was required in order to properly consider this novel claim.

[20] As a result, the motion judge allowed the crossclaim for indemnity for negligent advice to proceed. She struck the crossclaim for contribution as liability to the plaintiff is a prerequisite for contribution, and she had struck all the plaintiff's claims against the respondents. She also struck the crossclaim for breach of retainer on the basis that the pleadings lacked the necessary elements of the breach of retainer cause of action, but gave the Durham appellants leave to amend. The Durham appellants subsequently amended their breach of retainer pleadings.

E. Divisional Court ruling

[21] In reasons reported at (2018), 141 O.R. (3d) 309, [2018] O.J. No. 914, 2018 ONSC 993 (Div. Ct.) ("Divisional Court reasons") the Divisional Court allowed the respondents' appeal and struck the crossclaim in its entirety. The court held that it was plain and obvious that prosecutorial immunity would bar the crossclaim and noted that there was no appellate case that supported holding Crown Attorneys liable for negligent legal advice to police in the course of an investigation.

[22] First, the Divisional Court concluded that the crossclaim would fail because the appellants did not plead malice or intentional wrongdoing but only negligence. The court stressed that the Supreme Court has required a high threshold of either malice or intentional wrongdoing to establish an exception to prosecutorial immunity. Similarly, the Court of Appeal for Ontario held in Thompson v. Ontario, that there is no claim against Crown Attorneys for negligent investigation. The Divisional Court saw no reason to apply a lower liability threshold when the police, rather than a member of the public, claim against a Crown Attorney in negligence.

[23] Second, the Divisional Court found that the policy considerations the Supreme Court outlined in Nelles and Henry weighed in favour of applying prosecutorial immunity in this case. The court stressed the policy concerns about diverting Crown Attorneys' attention from their public duties and causing a chilling effect that would lead Crown Attorneys to engage in defensive lawyering. The court emphasized that there was no countervailing policy concern of eroding public confidence in the administration of justice because the respondents did not plead deliberate misuse of public office.

[24] Third, the Divisional Court rejected the appellants' argument that immunity should not apply to actions taken by Crown Attorneys during an investigation prior to the laying of charges. The court characterized this argument as founded on the functional approach to immunity that the Supreme Court rejected in Nelles and Henry. The court explained that Hill and Scott assisted with the investigation in the exercise of the office of Crown Attorney, and stressed that Crown Attorneys and police remained constitutionally independent. The court also noted that some of the actions Hill and Scott engaged in, such as giving advice with respect to criminal charges or assisting in obtaining warrants under Part VI of the Criminal Code, did lie within the core of prosecutorial discretion. Prosecutorial immunity would protect this conduct even under the functional approach that the appellants argued for.

[25] The Divisional Court declined to address the issue of duty of care as a result of its conclusion on prosecutorial immunity.

[26] The Divisional Court did not appear to analyze the breach of retainer pleading in its reasons and instead only analyzed the pleading of negligent legal advice. However, the order of the Divisional Court dismissed the Durham appellants' crossclaim against the respondents in its entirety, including the pleading of breach of retainer.

IV. The Decision in Clark v. Ontario (Attorney General)

[27] Nearly two months after the hearing of the present appeal, this court released its decision in Clark v. Ontario (Attorney General), supra.

[28] In Clark, three police officers sued the Attorney General of Ontario for negligence and misfeasance in public office after the Court of Appeal upheld a trial court's finding that the officers had assaulted two accused persons. The police officers alleged that the trial and appeal Crown Attorneys failed to pursue and put before the court evidence that contradicted the assault claims, a failure that caused irreparable harm to the officers' reputations. The Attorney General of Ontario moved to strike the claims under Rule 21 of the Rules of Civil Procedure.

[29] In reasons reported at [2017] O.J. No. 3236, 2017 ONSC 3683 (S.C.J.), the motion judge in Clark declined to strike the officers' claim in negligence on the basis of common law prosecutorial immunity, concluding that the case law existing at that time was not dispositive of the issue. He then went on to consider whether it would be appropriate to impose a new private law duty of care in the circumstances. The motion judge concluded that it was not plain and obvious that there would be no prima facie duty of care owed by trial Crown Attorneys to police officers to take reasonable care in the course of investigating and defending Charter motions alleging serious misconduct by police officers, reasoning that "[s]uch a proximate relationship could arise from the fact that significant interests of police officers are engaged when they are subject to misconduct allegations on Charter motions that only Crown Attorneys are in a position to defend against": at para. 104. However, despite his finding that a relationship of proximity existed, at stage two of the Anns/Cooper test, the motion judge concluded that "there are valid and important policy reasons not to expand the civil liability of Crown Attorneys in a case such as this": at para. 137. Accordingly, he declined to impose a private law duty of care in favour of police officers as against Crown Attorneys in relation to the conduct of prosecutions, and consequently struck the officers' claim in negligence.

[30] The motion judge allowed the claim for the tort of misfeasance in public office to proceed.

[31] The officers appealed the dismissal of their negligence claim to this court, and the Attorney General likewise appealed the dismissal of the motion to strike out the misfeasance in public office claim.

[32] This court dismissed the officers' appeal on the basis that prosecutorial immunity barred their negligence claim. The court determined that the existing case law on prosecutorial immunity was dispositive and rejected the officers' attempt to distinguish that case law as applying only to claims by former accused persons as opposed to police officers. The court reasoned that holding Crown Attorneys liable to the police for negligence would risk both diverting Crown Attorneys from their primary duties and encouraging defensive lawyering by Crown Attorneys. Accordingly, it was plain and obvious that the officers' claim in negligence would fail.

[33] Moreover, this court reasoned that, because of "the considerable correspondence between duty of care policy considerations and the scope of Crown immunity", the same conclusion would result under a duty of care analysis: at para. 96. Given that "[a]ll roads [led] to the same destination -- the Crown is not liable to police officers in negligence", the court declined the Crown's request to delve further into the motions judge's duty of care analysis and determine if his conclusion that there is a relationship of proximity was correct: at para. 96. Such a determination was unnecessary in the circumstances of the case before the court and was better left to another case when it would be dispositive of an issue.

[34] However, this court did allow the officers' claim for misfeasance in public office to proceed. It allowed this claim to proceed because it possessed a high liability threshold requiring the officers to prove that the Crown Attorneys acted in bad faith or for improper motives.

[35] Clark differs from the present case in several respects. In Clark, the impugned actions of the Crown Attorneys occurred following the laying of charges, rather than prior to the laying of charges, as in this case. Also, in Clark, the officers did not allege that the Crown Attorneys provided them negligent legal advice.

[36] Notwithstanding these differences, as will become apparent in my reasons, I find that Clark is helpful in relation to the issues of both prosecutorial immunity and duty of care.

V. Analysis

[37] As noted above, this case differs from Clark because it focuses on the pre-charge stage of a prosecution, and it involves a claim by police against Crown Attorneys for negligent legal advice. These differences engage important legal principles relating to police independence and the nature of the relationship between police and Crown Attorneys. It is necessary to review these principles first, so as to situate my analysis relating to prosecutorial immunity and duty of care in its proper context.

F. The nature of police independence

[38] I begin with the nature of police independence. As I will explain, this doctrine drew its roots from early English and Canadian decisions and has found modern expression in Supreme Court decisions and numerous Royal Commission reports. I will also address the three principal rationales for the doctrine of police independence, namely, the original authority of the police, the need to uphold the rule of law, and the police's greater closeness to the community.

(1) The origins of police independence

[39] The modern doctrine of police independence takes its origins from English and Canadian decisions that conceptualized police officers as the holders of a civil office of trust who derived their authority directly from the law. Three English decisions -- Fisher v. Oldham Corp., [1930] 2 K.B. 364; Attorney General for New South Wales v. Perpetual Trustee Co., [1955] A.C. 457 (P.C.); and R. v. Metropolitan Police Commissioner, Ex parte Blackburn, [1968] 2 Q.B. 118 (C.A.) -- laid the foundations of the doctrine of police independence in English law. Canadian courts have echoed much of the reasoning from these decisions in developing the doctrine of police independence in this country.

(a) English case law

[40] Fisher is often considered the progenitor of the concept of police independence in English law. In that case, McCardie J. held that an English municipality was not vicariously liable for a police officer's tort of false imprisonment. He determined that, at common law, police officers are not servants of the municipality, but instead are officers of the Crown with a duty to preserve and enforce the law. He reasoned that holding the municipality vicariously liable would entitle the municipality to demand control over arrest and prosecution of offenders. In his view, the prospect of such municipal control over the police was a "grave and most dangerous constitutional change" that would jeopardize police independence. Fisher thus came to form the constitutional foundation of police independence from municipalities and served as a basis for the subsequent cases that developed the doctrine of police independence in English law.

[41] In Perpetual Trustee Co., the Privy Council applied Fisher to establish that the police were independent not only from municipalities, but also from the Crown itself. The case concerned whether a police constable stood in a servant-master relationship to the Crown such that the Crown could claim damages for loss of services caused by the defendant's negligent driving that injured the police officer. The Privy Council held that police officers were not servants of the Crown and dismissed the Crown's claim. Viscount Simonds endorsed the reasoning in Fisher and stated:

Their Lordships can now express their final opinion upon the case. They repeat that, in their view, there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not, in ordinary parlance, described as that of servant and master.

[42] Finally, in Blackburn, Lord Denning provided the leading statement of police independence and applied the principles developed in the private law cases of Fisher and Perpetual Trustee Co. in a public law context. The case concerned an application to judicially review the Commissioner of Police's policy decision to direct police officers not to lay charges against clubs breaching gambling laws. Lord Denning extracted the following proposition from Fisher and Perpetual Trustee Co.:

[But] I have no hesitation in holding that, like every constable in the land, [the Commissioner of Police] should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State, save that under the Police Act, 1964, the Secretary of State can call upon him to give a report, or to retire in the interests of efficiency. I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.

[43] Lord Denning ultimately dismissed the appeal on the basis that the Commissioner of Police had withdrawn the impugned policy directive and would exercise his discretion afresh to consider whether to lay charges.

(b) Early Canadian case law

[44] As in England, Canadian courts developed the doctrine of police independence in the context of civil liability. In one early case, McCleave Estate v. Moncton (City) (1906), 32 S.C.R. 106, the Supreme Court held that a municipality was not vicariously liable for a police officer's unlawful entry and seizure of goods. The court reasoned that the law enforcement powers of police officers are derived from the law, not from the municipality, and that accordingly police officers cannot be considered agents or officers of the municipality.

[45] Canadian courts were also quick to apply the reasoning in Fisher, Perpetual Trustee Co. and Blackburn to the Canadian context. In Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, [1979] 1 S.C.R. 311, the Supreme Court relied on Perpetual Trustee Co. to hold that a police officer is a holder of a public office and exercises an original authority confirmed by the police legislation to maintain public order and preserve the peace.

[46] For its part, the Court of Appeal for Ontario also twice applied the principles of police independence from the English jurisprudence in the labour relations context. First, in A Reference Under The Constitutional Questions Act (Re), [1957] O.R. 28, the court held that a municipal council lacks the power to dismiss an officer without a hearing. Laidlaw J.A. adopted the passage from Perpetual Trustee Co. quoted above to justify this conclusion and reasoned that police officers owed general public duties, not duties to the municipality. Accordingly, he concluded that the police were not servants that the municipality could dismiss at pleasure.

[47] The second case, Toronto (Metro) Police Commissioners v. Metropolitan Toronto Police Assn. (1975), 8 O.R. (2d) 65, concerned the validity of an arbitration award requiring the Toronto police to staff all patrol cars with two officers. Brooke J.A. relied on the court's previous Reference decision to distinguish police labour relations from ordinary industrial relations because of police officers' special responsibility to the public. He then adopted the famous passage from Lord Denning's reasons in Blackburn and went on to hold that the arbitrator's award should be interpreted in such a way that it would not interfere with the police's performance of public duties.

(c) Modern status

[48] More recently, the Supreme Court confirmed and applied the principle of police independence to the criminal law context in R. v. Campbell, [1999] 1 S.C.R. 565. In that case, the court rejected the Crown's argument that Royal Canadian Mounted Police ("RCMP") agents who violated the Narcotic Control Act, R.S.C. 1985, c. N-1, enjoyed public interest immunity as agents of the Crown. Relying on McCleave, Perpetual Trustee Co., Blackburn and Nicholson, the Supreme Court held that police officers investigating a crime occupied a public office defined by the common law and statute. At paras. 32-33 of its reasons, the court explicitly adopted the passages from Perpetual Trustee Co. and Blackburn quoted above. Accordingly, the court concluded that police officers conducting a criminal investigation are "independent of the control of the executive government". They are not considered servants or agents of the government and are "not subject to political direction". Instead, they are only "answerable to the law".

[49] Campbell underlined the importance of police independence. The court emphasized that the principle of police independence in a criminal investigation "underpins the rule of law". It accordingly interpreted the broad language in s. 5 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, that the RCMP are under ministerial direction in a manner that preserved police independence from such direction in matters of core law enforcement.

[50] In the two decades since Campbell was decided, Canadian courts have applied the decision to confirm the doctrine of police independence in other public law contexts. For instance, in George v. Canada (Attorney General), [2007] F.C.J. No. 752, [2008] 1 F.C.R. 752, 2007 FC 564, the Federal Court held that RCMP officers conducting criminal investigations are acting pursuant to powers that are founded in the common law and subsequently confirmed by statute. The court relied on the principle of police independence to distinguish police officers from other state functionaries exercising delegated legislative authority. It thus held that a police officer's decision to commence a criminal investigation was not an exercise of federal executive authority subject to judicial review in the Federal Court.

[51] Similarly, in Conley v. Chippewas of the Thames First Nation, [2015] O.J. No. 2103, 2015 ONSC 404 (S.C.J.), Rady J. dismissed a claim that the federal Crown was liable for the actions of First Nations Constables who allegedly used excessive force against the plaintiff. The court reasoned that the doctrine of police independence recognized in Campbell meant that the constables were not servants of the Crown.

[52] Finally, in R. v. Wellwood, [2017] C.M.A.J. No. 4, 2017 CMAC 4, the Court Martial Appeal Court of Canada likewise applied Campbell to conclude that a military police officer conducting a criminal investigation was entitled to disregard the order of a non-police military officer with a superior rank to cease investigating.

[53] Beyond the case law, numerous Royal Commissions on policing issues have also echoed the holding in Campbell that police independence protects police decision-making in core law enforcement functions from executive interference. Even reports that have struck a more cautionary tone on police independence have endorsed police independence in relation to the core law enforcement functions of conducting criminal investigations, laying charges and making arrests.

[54] For instance, while the McDonald Commission generally called for greater ministerial oversight of the RCMP, it recommended that the Blackburn doctrine should apply to these core law enforcement functions to make them immune from ministerial direction.

[55] For its part, the Arar Commission also stressed greater ministerial and democratic accountability, but echoed the McDonald Commission's conclusion that core law enforcement functions should be immune from ministerial direction.

[56] To a similar effect, a number of other commissions have affirmed the principle of police independence, particularly in the performance of core law enforcement functions.

(2) Rationales for police independence

[57] The case law, the Royal Commission reports and scholars have outlined three principal rationales for the doctrine of police independence: original authority, the rule of law and the police's greater closeness to the community.

(a) Original authority

[58] The concept of original authority is a core rationale for the doctrine of police independence. As Ceyssens explains, this doctrine expresses the principle that police officers derive their authority "directly from the law, and not indirectly through delegation from a Minister or another legally competent source". Both Perpetual Trustee Co. and Blackburn root police independence in the notion of original authority. Similarly, Campbell stressed that the police possessed original authority that "'cannot be exercised on the responsibility of any person'" save the officers themselves, quoting Enever v. The King (1906), 3 C.L.R. 969 (Aust. H.C.).

[59] The original authority of police officers at common law includes the duties to preserve the peace, prevent crime, and protect life and property: R. v. Dedman, [1985] 2 S.C.R. 2. Section 42 of the Ontario Police Services Act, R.S.O. 1990, c. P.15 confirms and restates these common law duties.

[60] The concept of original authority is particularly relevant to the police power to lay charges. At common law, any individual had the power to lay an information. Upon codification of the criminal law, s. 504 of the Criminal Code confirmed this power by granting to "[a]ny one" who believes on reasonable grounds that a person has committed an indictable offence the power to lay an information. The phrase "[a]ny one" includes police officers.

[61] The right to lay an information is in practice almost completely associated with the police, as they commence the criminal process in nearly all cases. Section 504 of the Criminal Code thus confirms the common law understanding of police original authority. As Edwards notes, the police do not derive their authority to lay charges from the Minister responsible for policing or the Attorney General, but from the law itself.

(b) Rule of law

[62] Closely linked to the original authority rationale for police independence is the rule of law concern that the Supreme Court articulated in Campbell. As the Arar Commission stated, if the government could direct the police who to investigate and who not to investigate, "Canada would move towards becoming a police state in which the Government could use the police to hurt its enemies and protect its friends". Similarly, the Marshall Commission stressed that police independence protects against the danger that the police would forgo pursuing politically sensitive investigations out of a desire to maintain a good working relationship with the provincial Attorney General. Likewise, the report of the Commission for Public Complaints Against the RCMP stressed that the police had the sole responsibility to respect Charter rights while exercising their law enforcement functions and that they must evaluate Charter issues independently even if they face contrary political or ministerial direction.

[63] Crucially, police independence over the decision whether to lay charges requires the Attorney General and the Attorney General's delegates to publicly justify the decision not to pursue criminal charges. As the Marshall Commission noted, if the police lay a charge, the Crown must determine whether to proceed with the prosecution or withdraw the charges in open court. In contrast, if the Crown could order a charge not to be laid there would be no transparency and accountability. Police independence over criminal investigation and laying charges thus provides a "valuable safeguard against concerns of improper pressure".

(c) Closeness to the community

[64] A further justification for police independence is that independence can enable the police to be responsive to the community's concerns and needs. As the late Justice G. Arthur Martin suggested, the power to lay a charge fulfills the police officer's duty to respond directly to a community's needs. It may be reassuring to community members that it is the police officers who are in their midst, as opposed to Crown Attorneys who are more isolated from the community, who make the decision whether to lay charges.

G. The nature of the police-Crown Attorney relationship

[65] Closely linked to police independence is the relationship between police and Crown Attorneys. As I will explain, cooperation between police and Crown Attorneys is salutary for the administration of justice. However, each actor has a separate and distinct role to play in the administration of justice and the relationship between the two actors is not hierarchical. Maintaining the separation of police and Crown Attorney functions safeguards each actor's independence and protects against the misuse of both investigative and prosecutorial powers.

(1) Cooperation encouraged

[66] The Supreme Court has recognized the benefits that police cooperation with Crown Attorneys, including seeking legal advice, can bring.

[67] In Campbell, the court emphasized that whether the police complied with legal advice they received was relevant to whether their investigative techniques constituted an abuse of process. The community would view police misconduct as more serious if the police were told in advance by legal advisers that the investigative technique they intended to use was illegal. As the court stated, "A police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice." The court then reasoned that it was of "great importance" that the RCMP be able to obtain professional legal advice given the complexity of the legal system in which the police operate. The Supreme Court thus concluded that solicitor-client privilege protected communications between the RCMP and a Department of Justice lawyer from whom the RCMP sought advice on the legality of an investigative technique.

[68] Furthermore, Hill suggests that good faith reliance on legal advice from a Crown Attorney may tend to show that the police exercised their discretion reasonably and thus met the standard of care for the tort of negligent investigation.

[69] Similarly, various government commissions have consistently encouraged cooperation between police and Crown Attorneys. These reports have all recognized that cooperation between the police and Crown Attorneys is essential to the proper administration of justice. This cooperation can bring many benefits. For example, the Martin Report indicated that cooperation would allow officers to "reconcile the responsibility to respect the legal rights of individuals with the effective detection of crime". Later reports have identified Charter concerns and the growing complexity of the law of evidence and criminal procedure as reasons why such cooperation would be useful. In the words of LeSage and Code, the need to "navigate these difficult waters" has led the police to frequently seek legal advice from Crown Attorneys.

(2) No hierarchical relationship and separate and distinct roles

[70] There is, however, an important line to be drawn between the cooperation that is expected between Crown Attorneys and police officers and the exercise of their respective discretion in meeting their legal responsibilities. Their distinct roles and independence must be maintained and recognized.

[71] In R. v. Regan, [2002] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12, the Supreme Court stressed that police officers and Crown Attorneys maintain separate and distinct roles. In Regan, an accused person sought to stay charges on the basis that a Crown Attorney's wide-ranging pre-charge interviews with complainants were an abuse of process because they jeopardized the Crown Attorney's objectivity. The majority ultimately rejected an absolute rule barring Crown Attorneys from involvement in the pre-charge stage and preferred to adopt a more fluid approach. However, it affirmed that "the police tasks of investigation and charge-laying must remain distinct and independent from the Crown role of prosecution".

[72] The court accepted that the Crown and police have different roles. The police role is to investigate allegations of crime, while the Crown's role is to assess whether a prosecution is in the public interest. Relying on the Marshall Report, the court also characterized the "separation of Crown from police functions" as an "elemen[t] of the judicial process which must be safeguarded". Accordingly, it stressed that the "distinct line" between police and Crown functions is that "police, not the Crown, have the ultimate responsibility for deciding which charges should be laid", even if the Crown and the police disagree on whether charges are warranted.

[73] Following Regan, in R. v. Beaudry, [2007] 1 S.C.R. 190, [2007] S.C.J. No. 5, 2007 SCC 5, the Supreme Court rejected the proposition that the relationship between police and Crown Attorneys was hierarchical in nature. Beaudry concerned a police officer charged with obstructing justice for deliberately failing to take breath samples of another police officer who he had reasonable grounds to believe had been driving while intoxicated. The accused officer defended his decision not to take the breath samples as a proper exercise of police discretion. The majority of the Quebec Court of Appeal upheld the conviction on the basis that, because Quebec employs pre-charge screening by Crown Attorneys, the accused officer's discretion was limited and his only option was to take the breath sample and arrest the other officer.

[74] The Supreme Court, however, rejected this "hierarchical vision" in which the Crown Attorney's discretion would limit that of the police officer. It stressed that the police had a "particular role" to play and had a duty to exercise their discretion "independently of any outside influence". The court also emphasized that police discretion involves the duty to use judgment to "adapt the process of law enforcement to individual circumstances and to the real-life demands of justice". Ultimately, the Supreme Court upheld the conviction on the basis that the officer abused his discretion by acting out of favouritism.

[75] Two recent Ontario Superior Court decisions have also confirmed that mutual independence is the defining feature of the relationship between the police and Crown Attorneys. In R. v. Riley, [2008] O.J. No. 2889, 174 C.R.R. (2d) 288 (S.C.J.), Dambrot J. considered the argument that the legal advice Crown counsel provided to police prior to the police decision to obtain an interception authorization under s. 184.4 of the Criminal Code constituted a breach of s. 8 of the Charter. Dambrot J. rejected this argument. Crown counsel, he found, simply acted as a legal advisor to the police. It was open to the police to accept or ignore Crown counsel's advice in deciding whether to obtain an authorization. Accordingly, while Dambrot J. found that the police breached s. 8 of the Charter, Crown counsel's legal advice did not constitute such a breach. In reaching this conclusion, Dambrot J. stressed the mutual independence that forms the "hallmark of the relationship between police and Crown counsel". He found that it would jeopardize the "distinct line between the investigative and prosecutorial functions" to equate legal advice from Crown counsel with police decision-making.

[76] Likewise, in R. v. Atout, [2013] O.J. No. 899, 2013 ONSC 1312 (S.C.J.), Campbell J. emphasized that the principle of police independence is settled law in Ontario. As Campbell J. stated:

There is no question that the Crown and the police exercise different functions and operate independently of one another. Neither exercises supervisory authority over the other. Police officers exercise their own discretion in conducting investigations and, for the most part, in laying criminal charges. The police may seek the advice of the Crown, but are not bound to follow any advice that may be provided. Crown counsel are similarly independent in the exercise of their discretion in the prosecution of criminal cases. The Crown is not obliged to prosecute a case simply because the police have instituted charges against the accused. In short, the police and the Crown are mutually independent.

[77] I acknowledge that some provinces, notably Quebec, New Brunswick and British Columbia, employ systems of pre-charge screening. In these systems, the police present a file to the Crown Attorney upon completing the investigation. The Crown Attorney then reviews the file and makes a determination about whether it is appropriate to lay charges. If the Crown Attorney approves the laying of charges, then the police may proceed to lay a charge. In Regan, the Supreme Court cited the finding of the Law Reform Commission of Canada that these pre-charge screening procedures appear to be effective.

[78] However, this practice of pre-charge screening does not remove the police officer's discretion as to whether it is appropriate to lay a charge. I will outline several reasons why this is the case.

[79] First, in Ontario, it is clear that the laying of charges remains a core police responsibility, not one of Crown Attorneys. Section 42(1)(e) of the Police Services Act stipulates that "laying charges" is one of the duties of a police officer. In contrast, the laying of charges is not enumerated in the list of the duties of Crown Attorneys found in s. 11 of the Crown Attorneys Act. To the contrary, s. 11(a) of the Crown Attorneys Act seems to contemplate that Crown Attorneys only review an information after it has been sworn. This legislative division of labour is consistent with the descriptions of the relationship between police and Crown Attorneys found in the Martin Report and the LeSage and Code Report. It is also stated clearly in Ontario's Crown Policy Manual (effective November 14, 2017). As the "Police" section of the Manual states, "Police officers have sole responsibility and discretion over . . . the laying of criminal charges."

[80] Second, even in provinces that employ pre-charge screening, the Crown Attorney's exercise of discretion in reviewing the police file and authorizing the laying of charges does not remove the police's independent discretion. In fact, the British Columbia and New Brunswick pre-charge screening policies expressly provide that the police can decide to lay charges even if the prosecutor does not approve of the laying of charges. As for Quebec, as Proulx J.A. explained in his concurring opinion in André c. Québec (Procureur général), [2003] J.Q. no 1376, [2003] R.J.Q. 720 (C.A.), it is inconsistent with police independence for the police to hide behind the prosecutor's decision to approve the laying of charges. When the police officer presents the case file to the prosecutor who conducts the charge screening, this demonstrates that the officer has already determined that there are reasonable grounds to believe that the target of the investigation has committed an offence. Moreover, the prosecutor's decision to approve the laying of charges does not eliminate the officer's discretion. Instead, the officer must still make the decision to proceed and to sign and swear the information under s. 504 of the Criminal Code.

[81] Third, without expressing a definitive opinion on this particular point, a decision by a provincial Attorney General or the Attorney General's delegates to direct a police officer not to lay charges would raise serious constitutional concerns. As mentioned earlier, s. 504 of the Criminal Code gives "[a]ny one" the right to lay an information. In Quebec (Attorney General) v. Lechasseur, [1981] 2 S.C.R. 253, the Supreme Court held that provincial legislation that would otherwise limit the ability of "[a]ny one" to lay an information under the predecessor provision to s. 504 was constitutionally inapplicable by virtue of the paramountcy doctrine. As a result, Michael Code has argued that an attempt by a provincial Attorney General or the Attorney General's delegates to direct a police officer not to lay charges would also likely be invalid on federalism grounds. Code reasons that if provincial legislation is incapable of removing a citizen's right to lay charges under s. 504, it follows that a provincial Attorney General or Crown Attorney cannot direct police not to lay an information or to only lay an information with a Crown Attorney's approval.

[82] Likewise, in André, Proulx J.A. was of the opinion that it followed from Lechasseur that the police officer has the power to lay an information even in the absence of authorization from the prosecutor who screened the charges. I would note that to hold otherwise risks undermining the role and independence of police and their legal authority to exercise their discretion judiciously in the laying of charges.

[83] Academic commentators and government reports have also stressed that Crown Attorneys and the police have separate and distinct roles. The Martin Report concluded that, "[a]s a matter of law, police officers exercise their discretion in conducting investigations and laying charges entirely independently of Crown counsel". It found that "there is in both law and practice in Ontario a relatively clear separation of the functions of investigator and prosecutor". While the LeSage and Code Report recognized and encouraged a trend toward greater Crown-police collaboration, it likewise emphasized that the historic independence and separation of roles remains intact and that the "Crown's exercise of discretion . . . must be independent of the police investigation".

[84] Similarly, Edwards has stressed the critical importance of distinguishing the separate roles of police and prosecutors at the stage of instituting criminal proceedings. While Edwards acknowledges that the roles of prosecutors and police may sometimes overlap, he concludes that it is still necessary to maintain a functional separation of duties to keep the prosecution and investigation functions distinct.

(3) Benefits of maintaining separate and distinct roles

[85] The separation of police and Crown Attorney functions both safeguards police independence and helps preserve prosecutorial independence. Unlike police investigators, Crown Attorneys should not have made a determination as to whether the target of the investigation is guilty, and they should thus be able to consider the merits of a prosecution in a disinterested manner if and when a charge is laid. In Regan, the Supreme Court recognized that Crown involvement in an investigation could cause a Crown Attorney to lose her objective stance as a minister of justice, even though this was not inevitable. Following Regan, the LeSage and Code Report recommended that a Crown Attorney who had been significantly involved in the investigative stage not take carriage of the prosecution upon the laying of charges. As the late Justice Rosenberg has written extrajudicially, Regan "serves as a reminder of the dangers to the proper functioning of the system when Crown counsel appear to have become too closely aligned with the police".

[86] Police independence and prosecutorial independence in fact go hand in hand. As Edwards notes, the police accept the Crown prosecutor's independence in deciding whether the prosecution should be initiated or continued as it is consistent with their own right to determine who should be charged and for what offences. And, as the Martin Report concluded, mutual independence provides a safeguard against the misuse of both investigative and prosecutorial powers and can ensure that both investigations and prosecutions are conducted more thoroughly and fairly. Where the two actors disagree, the principles of police and prosecutorial independence allow for this disagreement to be resolved through a public and transparent process in which each actor exercises its appropriate role.

[87] The decision of the Attorney General of Ontario to stay charges the police laid against Dr. Henry Morgentaler for performing abortions while Dr. Morgentaler's appeal to the Supreme Court of Canada was pending illustrates how police and prosecutors operate separately and distinctly. The Attorney General accepted that the police possessed the "constitutional responsibility" to investigate offences and to lay charges. However, he stated that Crown Attorneys had a parallel responsibility to exercise their discretion whether to proceed with the charges and had no obligation to prosecute just because the police had gathered sufficient evidence. As a result, the Crown stayed the charges on the basis that there could be no trial of those charges until the Supreme Court resolved Dr. Morgentaler's appeal. The Attorney General later wrote the following about this case:

This example clearly demonstrates the differences in the roles of the attorney general and the police. Before laying the charges, the police consulted the attorney general and his agents, and were advised that any charges that were laid would, in the circumstances, be stayed. Notwithstanding this advice, the police concluded that it was their duty and responsibility to lay the charges that they believed on reasonable and probable grounds were warranted. The attorney general, while acknowledging the role of the police that entitled them to take this action, did what he believed the administration of justice required.

(4) Wording in crossclaim

[88] Before concluding this discussion of the nature of the relationship between police and Crown Attorneys, it is necessary to address one issue in particular that arises from some of the wording used by the Durham appellants in their crossclaim. Specifically, at para. 210 of their amended statement of defence and crossclaim, the Durham appellants plead the following concerning the legal advice they received from the respondent Crown Attorneys:

[B]ut for receiving this legal advice and direction, [the Durham appellants] would not have proceeded with the investigation in the manner it was undertaken or charged the Plaintiff with Beverley Smith's murder.

[89] I am concerned that this wording could be understood as advancing the theory that, in giving legal advice, the Crown Attorneys were somehow "directing" police decision-making. To be clear, such a theory runs completely contrary to the nature of the relationship between police and Crown Attorneys. While police may be entitled to rely on advice from Crown Attorneys as a consideration in the exercise of their discretion, given the legal separation of functions, such advice cannot to be taken as determinative or controlling. Taken to its logical conclusion, on this theory the police would have had no discretion and their only option would have been not to charge the plaintiff if the Crown Attorneys recommended against this. This is precisely the hierarchical relationship that Beaudry condemned. It runs contrary to the statement in Campbell that, while police officers may seek advice on how to exercise their authority, the responsibility on how and whether to exercise that authority remains with police officers alone. As Edwards emphasizes, even in jurisdictions where the police retain in-house lawyers who advise on whether to lay charges, the final decision on whether to lay charges and for what offences remains with the police. To put it bluntly, while police can seek legal advice from Crown Attorneys, they do not have to take it and the decision whether to lay charges is theirs alone.

C. Application of these principles to the issues in this case

[90] As will be seen in my analysis below, the principles governing police independence and the nature of the relationship between police and Crown Attorneys support the conclusions that it is plain and obvious that prosecutorial immunity bars the crossclaim and that Crown Attorneys do not owe a duty of care to police in respect of the legal advice they provide. Each one of these conclusions is fatal to the crossclaim.

(1) Proper case for motion to strike

[91] Before turning to the substance of my analysis, I would first reject the appellants' argument that this is not a proper case for a motion to strike. Pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, a party may move to strike a claim that discloses no reasonable cause of action. While a claim will not be struck simply because it is novel, if it is plain and obvious that the pleading discloses no reasonable cause of action, it cannot proceed. The appellants rely on this court's decisions in Paton Estate v. Ontario Lottery and Gaming Commission (c.o.b. Fallsview Casino Resort), (2016), 131 O.R. (3d) 273, 2016 ONCA 458, and Amato v. Welsh, [2013] O.J. No. 1857, 2013 ONCA 258, 362 D.L.R. (4th) 38. However, neither decision establishes a rule that novel claims should never be struck on a Rule 21 motion. As I explain below, in this case, it is plain and obvious that the crossclaim cannot succeed because it is barred by prosecutorial immunity or, in the alternative, because the respondents do not owe the Durham appellants a duty of care.

[92] In particular, I would reject the appellants' argument that it is inappropriate to resolve the prosecutorial immunity issue on a Rule 21 motion. In both Nelles and Henry, the Supreme Court determined the liability threshold for malicious prosecution and s. 24(1) Charter remedies, respectively, on a motion to strike. Similarly, in both cases the Supreme Court considered the policy rationales underlying prosecutorial immunity. Likewise, in Clark, this court found that it was appropriate to resolve the prosecutorial immunity issue on a Rule 21 motion. As the court reasoned, the issue was not wholly novel but instead was merely "a variation on a familiar theme -- the scope of Crown immunity in the context of criminal prosecutions".

[93] I would also reject the appellants' argument that there was insufficient evidence to resolve the duty of care issue on the Rule 21 motion. The motion judge declined to decide the duty of care question because she held that there was insufficient evidence concerning the impact of a tort claim for negligent legal advice on the relationship between police and prosecutors. However, as discussed above, the existence of the separate and distinct roles of police and Crown Attorneys and the principle of police independence during the investigation and charge-laying stages are matters of settled law.

[94] In any case, the motion judge only found that there was insufficient evidence concerning the impact of the imposition of a duty of care on the relationship between police and prosecutors. However, the second stage of the Anns/Cooper analysis focuses on residual policy concerns that are extrinsic to the relationship between the parties. As I discuss below, the twin policy concerns relevant to the prosecutorial immunity issue are also relevant to stage two of the duty of care analysis, and these concerns were fully explored by the parties before the motion judge.

(2) Plain and obvious that prosecutorial immunity bars the crossclaim

[95] It is plain and obvious that prosecutorial immunity bars the crossclaim because the two policy concerns of diversion from public duties and chilling effect leading to defensive lawyering that give rise to prosecutorial immunity apply to the case at bar. There is no basis upon which to treat claims by the police differently from claims by individual citizens, nor is there a basis to differentiate between claims arising from the pre-charge stage versus the post-charge stage.

(a) The principles of prosecutorial immunity

[96] Prosecutorial immunity is rooted in two policy concerns: the risk of diverting Crown counsel from their important public duties, and the risk of a chilling effect on the behaviour of prosecutors that leads to defensive lawyering. The diversion concern is that Crown Attorneys would spend too much of their limited time responding to civil lawsuits rather than fulfilling their duty to prosecute crime. The chilling effect concern is that fear of liability would lead to defensive lawyering designed to ward off liability, rather than to serve the public interest. These policy concerns flow from public law principles on Crown independence and prosecutorial discretion. These principles justify prosecutorial immunity for negligence or errors of judgment. In addition, they shape the high threshold for liability in an action for malicious prosecution even where prosecutorial immunity does not apply. Similarly, in Henry, the Supreme Court applied these policy concerns to inform the liability threshold for s. 24(1) Charter remedies against prosecutors.

[97] The strong countervailing interest of the importance of providing the subject of a prosecution with an effective remedy led the Supreme Court to establish exceptions to prosecutorial immunity. In Nelles, the Supreme Court stressed that its concern for "the individual rights of citizens who have been wrongly and maliciously prosecuted" led it to grant an exception to immunity for malicious prosecution. The policy imperative of protecting "[i]ndividuals caught up in the justice system . . . from abuses of power" thus justified a limited exception. Similarly, in Henry, the Supreme Court stressed the need to offer an effective remedy to victims of unconstitutional conduct by Crown Attorneys in justifying lifting immunity for s. 24(1) Charter claims.

[98] However, this powerful countervailing interest did not lead the Supreme Court to accept a negligence-based standard of liability, even for Charter breaches. Nelles explicitly excluded "errors in judgment or discretion or even professional negligence" from liability, and Miazga affirmed that liability will not be imposed even in cases of "recklessness" or "gross negligence" absent malice. While in Henry the Supreme Court was willing to establish a lower standard than malice for s. 24(1) Charter relief, it insisted on a high threshold to limit the scope of liability and thus rejected even the gross negligence standard. The intentionality and knowledge requirements the majority in Henry imposed as preconditions for relief aimed to set a higher liability threshold than tort law negligence.

(b) These principles apply to the case at bar

[99] It is plain and obvious that prosecutorial immunity applies to police litigation against Crown Attorneys for negligent advice, because such litigation engages the twin policy concerns of diversion from public duties and a chilling effect leading to defensive lawyering.

[100] First, police litigation against Crown Attorneys for negligent advice plainly has the potential to divert Crown Attorneys from their duties. In this regard, I would echo the conclusions of this court in Clark. At para. 86, this court held that the diversion from duties concern was equally valid in relation to claims against Crown Attorneys brought by police. Requiring Crown Attorneys to fight off the grievances of disgruntled officers in court would undermine the proper functioning of the justice system. As the Supreme Court held in Henry, making Crown Attorneys spend their time responding to lawsuits would undermine Canadians' collective interest in allowing Crown Attorneys to focus on their primary task, namely, prosecuting crime fairly and effectively.

[101] Second, police litigation against Crown Attorneys for negligent advice engages the chilling effect leading to defensive lawyering concern -- i.e., the concern that the actions of Crown Attorneys -- here, in the area of advice-giving -- would be "motivated less by legal principle than by a calculated effort to ward off the spectre of liability".

[102] This court's decision in Clark confirms the relevance of the chilling effect concern to police litigation against Crown Attorneys. At paras. 87-88, this court held that imposing liability would encourage Crown Attorneys to focus on extraneous factors during the course of a prosecution, which would distort principled decision-making. While Clark concerned Crown Attorney conduct after the laying of charges, the same concerns apply to Crown Attorney involvement at the pre-charge stage. As the Supreme Court held in Regan, at para. 89, Crown Attorneys who are involved at the pre-charge stage of the process have a duty to remain objective, and, accordingly, to make a rational assessment of the facts in making decisions related to the case. Imposing liability for mere negligence would risk leading Crown Attorneys whose advice is sought by police at the investigation stage to allow their actions to be guided more by a desire to avoid liability than by an objective assessment of the facts and law.

[103] As an additional basis to the application of these well-settled policy concerns, I would note that in the circumstances of this case the chilling effect policy concern includes the damage that imposing liability would cause to the relationship between Crown Attorneys and the police. Imposing liability could upset the principles that I have previously outlined that govern this relationship. In this regard, in Henry the Supreme Court did consider factors relevant to the relationship between police and Crown Attorneys in setting the liability threshold for Charter claims against prosecutors. Focusing specifically on the nature of the claim in the case at bar, there are two forms that this damage could take.

[104] First, fear of civil liability for negligent legal advice could cause Crown Attorneys to be reluctant to give advice. This concern was recognized by Dambrot J. in Riley, at para. 145, when he stated that holding Crown Attorneys who advise the police legally responsible for police decisions would tend to deter Crown Attorneys from advising the police. This outcome would deny our criminal justice system the benefits that come from this type of police and Crown cooperation.

[105] Second, and looked at from another perspective, fear of civil liability for negligent legal advice could also cause Crown Attorneys to veer into impermissible direction of the police. This is precisely the concern that McCardie J. raised in Fisher when he stated that municipal direction of police law enforcement decisions would be the logical consequence of imposing vicarious liability for the actions of police on the municipality. This outcome would run contrary to the principle that Crown Attorneys do not exercise supervisory authority over the police. As the Supreme Court held in Henry, at para. 93, it is inappropriate to require Crown Attorneys to "police" the police.

(c) No basis to differentiate between claims by police versus claims by individual citizens

[106] The appellants submit that it is appropriate to impose liability on Crown Attorneys for mere negligence when the claim is brought by the police. The Durham appellants did not plead malice, Charter breaches, or intentional withholding of information. The motion judge accepted the appellants' argument on the basis that the prosecutorial immunity cases I have already discussed focused on "the rights of individual citizens, not the rights of the police".

[107] I would reject this argument. As this court held in Clark and as the Divisional Court held in the present case, there is no basis to privilege the interests of police officers over ordinary citizens by establishing a lower liability threshold for the former than the latter.

[108] The jurisprudence is clear that no claim lies against a Crown Attorney for mere negligence. This court has repeatedly held that there is no claim in negligence against the Crown for prosecutorial misconduct, even for tort claims other than malicious prosecution. Likewise, the Supreme Court has consistently rejected a negligence-based threshold. Contrary to the appellants' submissions, the rejection of negligence as a threshold for liability is not limited to the tort of malicious prosecution. Henry applied it to s. 24(1) Charter remedies for non-disclosure, and emphasized that a negligence-based standard "ignores the basic realities of conducting a criminal prosecution".

[109] Nor does the fact that the appellants pled that they received legal advice on the investigation from the respondent Crown Attorneys justify lowering the liability threshold. As discussed above regarding the nature of the relationship between police and Crown Attorneys, it is important that the police be able to obtain professional legal advice on the conduct of criminal investigations. However, the police crossclaim remains one for indemnification for a monetary loss. This claim is less compelling than claims by individual citizens whose Charter rights are violated by prosecutors or who are the victims of a malicious prosecution. As Lamer J. (as he then was) noted in Nelles, a malicious prosecution may amount to a deprivation of the s. 7 Charter right to liberty and security of the person. Finally, as noted above, tort law already provides a mechanism to take into account the police's good faith reliance on legal advice from Crown Attorneys.

[110] I would also reject the appellants' argument that it is unfair to impose liability on the police where Crown Attorneys in the same circumstances are free from liability. The Supreme Court has consistently emphasized that a claim may lie against police where it does not lie against Crown Attorneys. In Hill, the court rejected the argument that the police decision to pursue an investigation is quasi-judicial such that the police should enjoy a similar immunity to prosecutors. Similarly, in Henry, the majority specifically stressed that the police, unlike Crown Attorneys, are liable in negligence.

(d) No basis to differentiate between claims arising from the pre-charge stage versus the post-charge stage

[111] The appellants further submit that prosecutorial immunity does not apply to the pre-charge stage. The appellants argue that prosecutorial discretion only encompasses "'decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it'". As assistance with pre-charge investigation does not fall within the list of examples of prosecutorial discretion provided in Nelles, Krieger and Anderson, prosecutorial immunity does not apply.

[112] Like the motion judge and the Divisional Court, I would reject this argument. It runs contrary to the following statement by Moldaver J. in Henry, at para. 76:

[T]he policy concerns raised in the malicious prosecution trilogy are not confined to the exercise of core prosecutorial discretion. In my view, those concerns have a broader reach and are implicated wherever there is a risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice.

[113] As I discussed earlier in these reasons, even though police and Crown Attorneys occupy mutually independent roles in our justice system, cooperation between them at the pre-charge stage, including by providing legal advice, is salutary to the administration of justice. In fact, there is a long tradition in Ontario of police consulting with Crown Attorneys at the pre-charge stage of the investigation. I thus agree with the motion judge's finding that the actions of the respondents Hill and Scott as described in the pleadings were undertaken in furtherance of Crown Attorneys' statutory duty under s. 11 of the Crown Attorneys Act, to "aid in the local administration of justice".

[114] In my view, the existing case law makes clear that it is plain and obvious that prosecutorial immunity applies to bar the crossclaim. The twin policy concerns that give rise to prosecutorial immunity are engaged by claims brought by police for negligent legal advice. The crossclaim fails on this ground.

(3) Plain and obvious that Crown Attorneys do not owe a duty of care to police in respect of the legal advice they provide

[115] As a separate and independent basis for my decision, I would also dismiss the appeal on the basis is that it is plain and obvious that Crown Attorneys do not owe a duty of care to the police in respect of the legal advice they provide.

[116] In order to determine whether or not a duty of care should be recognized, it is necessary to follow the two-stage Anns/Cooper test, which was articulated by the Supreme Court of Canada in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 as follows:

At the first stage of this test, the question is whether the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. If this is established, a prima facie duty of care arises and the analysis proceeds to the second stage, which asks whether there are policy reasons why this prima facie duty of care should not be recognized.

[117] I would note that in Clark this court declined to consider stage 1 of the Anns/Cooper test. However, it offered some comments on the application of stage 2 of the test. I appreciate the panel's reluctance in Clark to address the proximity issue. However, I believe it is both appropriate and helpful to address the proximity issue in the context of this case. The proximity issue was a ground of appeal and was fully argued. As I will explain, resolution of the issue turns on well-settled principles of law governing the relationship between and respective roles of the police and Crown Attorneys.

[118] I turn now to stage one of the analysis.

(a) Stage one: No prima facie duty of care

[119] The test for proximity is whether there is such a "close and direct" relationship between the parties that it would be just to impose a legal duty of care. It is not necessary to conduct a full proximity analysis if a case falls within an established proximate relationship or an analogous category. The present case does not fall within an established or analogous relationship as the appellants allege that they are arguing for the recognition of a new category of relationship giving rise to liability. Accordingly, I will conduct a full proximity analysis, examining relevant factors arising from the relationship between the parties such as the parties' expectations and reliance. In conducting this analysis, I am cognizant that a conflict between an alleged duty of care and a public duty may also constitute a reason for refusing to find proximity.

[120] As I explain below, I am not satisfied that there is a sufficiently direct and close relationship to impose a prima facie duty of care on Crown Attorneys in providing legal advice to police.

[121] As I have discussed, while cooperation between the police and Crown Attorneys is salutary for the administration of justice, they have separate and distinct roles. Their relationship is defined by mutual independence.

[122] As a matter of law, the police role in investigating crime and deciding whether to lay charges is "distinct and independent from the Crown['s] role of prosecution". Regan referred to the police's ultimate responsibility over charge-laying as a "distinct line" between police and Crown functions that must be preserved. To a similar effect are the statements in the Martin Report and the LeSage and Code Report about the separation between the exercise of police functions and Crown Attorney functions. As I have explained earlier, the statutory framework confirms this separation of functions. Read together, the Police Services Act and the Crown Attorneys Act make clear that the legislature contemplated that police officers, not Crown Attorneys, have sole responsibility for laying charges.

[123] In the course of an investigation, police officers are required to weigh the evidence to a certain extent. Unlike Crown Attorneys, however, they have no obligation to "evaluate evidence according to legal standards or to make legal judgments".

[124] Once a charge is laid, it is the role of Crown Attorneys in this province to decide whether to commence or continue a prosecution based on whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest. As the Martin Report stated, Crown Attorneys thus must take into account many factors that the police are not required to consider. Not only do they need to see that the public interest is served, but they also should determine whether the evidence that the police have gathered will stand up in court. As the Supreme Court held in Regan, at para. 87, "The expectation is that both the police and the Crown will act according to their distinct roles in the process."

[125] This separation of police and Crown Attorney functions both safeguards police independence and helps preserve prosecutorial independence. In light of their separate and independent roles, it is not reasonable for police to expect Crown Attorneys to owe them a private law duty of care in giving legal advice.

[126] 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 play in the administration of justice. Crown Attorneys have a duty to "act for the public and the administration of justice resolutely and honourably". Under the Crown Attorneys Act, Crown Attorneys have public duties. The Supreme Court recognized the public nature of these duties and the importance of protecting Crown Attorneys' ability to make independent decisions in Miazga. As the court held:

In exercising their discretion to prosecute, Crown prosecutors perform a function inherent in the office of the Attorney General that brings the principle of independence into play. Its fundamental importance lies, not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as "ministers of justice".

[127] In providing legal advice to police officers, Crown Attorneys thus owe duties to the public at large. Imposing a private law duty of care risks putting Crown Attorneys in a conflict of interest situation.

[128] Finally, I note that in support of their argument in favour of establishing a prima facie duty of care the appellants rely on the Supreme Court's finding in Campbell, at para. 50, that a solicitor-client relationship with its "attendant duties, responsibilities and privileges" formed between the RCMP and the Department of Justice lawyer from whom the RCMP officers sought legal advice. I am not persuaded that Campbell assists the appellants. Campbell was not a torts case, and the Supreme Court did not conduct any duty of care analysis in its decision. The case does stand for the principle that it is important that the police be able to obtain legal advice and that solicitor-client privilege should attach to protect the contents of that advice from disclosure. The mutual independence of the police and the Attorney General thus did not bar the RCMP from asserting a right of confidentiality over the legal advice provided. However, it does not follow from Campbell that imposing private law liability on Crown Attorneys who provide legal advice to police is necessary to ensure that the police can obtain legal advice. To the contrary, the fact that the relationship between police and Crown Attorneys has been characterized by mutual cooperation to date suggests that imposing private law liability is not necessary to ensure that the police can obtain legal advice.

[129] In light of my conclusion on proximity, it is unnecessary to consider foreseeability.

[130] I conclude that, given the lack of proximity, the respondent Crown Attorneys do not owe a prima facie duty of care to the Durham appellants.

(b) Stage two: Residual policy considerations

[131] Only if there is a prima facie duty of care is it necessary to consider whether there are residual policy considerations that negate such a duty. In this case, I have found there is no prima facie duty and so it is unnecessary to consider stage 2. However, in the event I am wrong on stage 1, I would conclude that this is one of the rare cases in which stage 2 considerations negate a prima facie duty of care.

[132] Stage two of the Anns/Cooper test focuses on "residual policy considerations" outside of the relationship of the parties. These concerns include the effect of recognizing a duty of care on "other legal obligations, the legal system and society more generally". This stage is a "normative inquiry" that allows the court to consider whether "reasons relating to legal or doctrinal order", or other societal concerns, should negate a duty of care. To negate a prima facie duty of care, "a real potential for negative consequences must be apparent" from the policy concerns at play.

[133] The same two policy concerns that compel the application of prosecutorial immunity to these circumstances also operate as residual policy concerns that negate the recognition of a duty of care. First, there is the concern that imposing a duty of care would divert Crown counsel from their important public duties. Second, there is the concern that the spectre of liability would lead Crown Attorneys to lawyer defensively to protect their own interests -- which, on the facts of this case, could also be used as a stage one factor. Importantly, however, as the Supreme Court explained at para. 73 of Henry, "[t]he public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown's role as a quasi-judicial officer".

[134] A third residual policy concern is that imposing a duty of care on Crown Attorneys would undermine the mutual independence and distinct roles of police and Crown Attorneys, which in turn could harm the functioning of the criminal justice system. Police officers and Crown Attorneys constitute the "two arms of the criminal justice system". Their roles are central to the functioning of the legal system. As Justice Rosenberg explained, the erosion of the distinct line between Crown and police functions poses "dangers to the proper functioning of the system".

[135] This case illustrates how imposing a duty of care could erode that distinct line to the detriment of the criminal justice system. The plaintiff's case against the police exclusively concerns police conduct during the investigation and decision to lay a charge, stages in which the police are constitutionally independent and immune to direction from Crown Attorneys or the Attorney General. As I have discussed above, imposing liability in these circumstances could encourage Crown Attorneys to not only refrain from advising the police, but also to veer into impermissible direction of the police. Likewise, imposing liability could encourage the police to impermissibly fetter their discretion by treating legal advice from Crown Attorneys as determinative instead of being merely one factor to consider. The imposition of a duty of care thus "puts at risk the maintenance of the distinct line between the investigative and prosecutorial functions that is essential to the proper administration of justice".

[136] In conclusion, if contrary to my conclusion above Crown Attorneys do owe a prima facie duty of care to police in providing legal advice, such a duty is negated by important residual policy considerations.

VI. Disposition

[137] Accordingly, I would dismiss this appeal.

[138] With respect to the issue of costs, the parties agreed that should the disposition of this appeal be in favour of the respondents, then the respondents should be awarded their costs collectively fixed in the amount of $20,000, with the Durham appellants and York appellants to each pay half of this sum. Accordingly, the Durham appellants and the York appellants are hereby each ordered to pay costs fixed in the amount of $10,000 to the respondents collectively, inclusive of all taxes and disbursements.

Appeal dismissed.

Footnotes

¹ Section 11 of the Crown Attorneys Act, R.S.O. 1990, c. C.49 reads as follows:

Duties:

11. The Crown Attorney shall aid in the local administration of justice and perform the duties that are assigned to Crown Attorneys under the laws in force in Ontario, and, without restricting the generality of the foregoing, every Crown Attorney shall,

to examine informations, etc.

(a) examine informations, examinations, depositions, recognizances, inquisitions and papers connected with offences against the laws in force in Ontario that the provincial judges, justices of the peace and coroners are required to transmit to him or her, and, where necessary, cause such charges to be further investigated, and additional evidence to be collected, and sue out process to compel the attendance of witnesses and the production of papers, so that prosecutions may not be delayed unnecessarily or fail through want of proof;

to conduct prosecutions

(b) conduct, on the part of the Crown, preliminary hearings of indictable offences and prosecutions for indictable offences,

(i) at the sittings of the Superior Court of Justice where no law officer of the Crown or other counsel has been appointed by the Attorney General,

(ii) before provincial judges in summary trials of indictable offences under the Criminal Code (Canada),

in the same manner as the law officers of the Crown conduct similar prosecutions at the sittings of the Superior Court of Justice, and with the like rights and privileges, and attend to all criminal business at such courts;

special Crown counsel

(c) where a law officer of the Crown or other counsel has been appointed by the Attorney General, deliver to the Crown officer or other counsel all papers connected with the criminal business at the sittings of the Superior Court of Justice before the opening of the court and, if required, be present at the court and assist the Crown officer or other counsel;

cases brought by private prosecutors

(d) watch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his or her interposition;

summary conviction matters

(e) where in his or her opinion the public interest so requires, conduct proceedings in respect of any provincial offence or offence punishable on summary conviction;

government prosecutions

(f) when requested in writing, cause prosecutions for offences against any Act of the Legislature to be instituted on behalf of any governmental ministry or agency and conduct such prosecutions to judgment and to appeal, if so instructed;

summary conviction appeals

(g) where in his or her opinion the public interest so requires, conduct appeals to the Superior Court of Justice for provincial offences and offences punishable on summary conviction;

justices of the peace

(h) advise justices of the peace with respect to offences against the laws in force in Ontario;

bail

(i) where a prisoner is in custody charged with or convicted of an offence and an application is made for bail, inquire into the facts and circumstances and satisfy himself or herself as to the sufficiency of the surety or sureties offered, and examine and approve of the bail bonds where bail is ordered.

² The investigation in this case predated the Supreme Court's decision in R. v. Hart, 2014 SCC 52.

³ As I explain below, following the hearing of the present appeal, this court released its decision in Clark v. Ontario (Attorney General), 2019 ONCA 311, in which it held that prosecutorial immunity applied to negligence claims brought by police officers against Crown Attorneys. The motion judge's decision in Clark pertaining to this issue was released on June 13, 2017 - i.e., subsequent to the motion judge's decision in the case at bar.

⁴ The Anns/Cooper test refers to the two-stage test for determining whether a duty of care should be recognized. It was set out by the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728, and somewhat reformulated by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79.

⁵ British Columbia Prosecution Service, Crown Counsel Policy Manual, "Charge Assessment Decision - Police Appeal", effective date March 1, 2018; New Brunswick, Office of Attorney General, Public Prosecutions Operational Manual, "Chapter II - The Decision to Prosecute, Pre-Charge Screening", effective date November 21, 2017, at p. 5.

⁶ Indeed, the Durham appellants concede in their factum that they may have a defence based on good faith reliance on legal advice they received from Crown Attorneys pursuant to the Supreme Court's decision in Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, at para. 90.