Smith v. The Attorney General of Ontario et al.

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

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Warkentin R.S.J., Swinton and Horkins JJ.

February 21, 2018

141 O.R. (3d) 309 | 2018 ONSC 993

Case Summary

Crown — Crown attorneys — Immunity — Prosecutorial immunity barring cross-claim by police defendants against Crown attorneys for contribution and indemnity based on negligent provision of legal advice in course of criminal investigation.

Following a "Mr. Big" police undercover operation, the plaintiff was charged with first degree murder in a cold case related to his neighbour's murder. He was ultimately acquitted. He sued the police defendants for negligent investigation and other torts. He also sued the Attorney General and the Crown attorneys who provided the police with legal advice during the investigation, alleging that the Crown attorneys were negligent in their provision of legal advice. The police defendants cross-claimed [page310] against the Attorney General and the Crown attorneys for contribution and indemnity based on the allegation that the prosecutors have provided negligent legal advice about investigative methods and whether to charge the plaintiff. The Attorney General and the Crown attorneys brought a motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to strike the claim against them and the cross-claim. The motion judge struck the claim on the basis that it was barred by common law prosecutorial immunity. She declined to strike the cross-claim, holding that it was not plain and obvious that common law prosecutorial immunity applied to a claim by police defendants against Crown attorneys for negligent advice. The Attorney General and the Crown attorneys appealed.

Held, the appeal should be allowed; the cross-claim should be struck.

The motion judge erred in declining to strike the cross-claim. Given the existing appellate authority on prosecutorial immunity, the fact that the claim was in negligence, and policy considerations, it was plain and obvious that the cross-claim would fail. Crown attorneys enjoy immunity from a civil suit in negligence arising from the exercise of their official functions. It is only when they act with malice or intentionally breach the Canadian Charter of Rights and Freedoms disclosure right that they can be subject to a civil action for damages. There is no justification for the conclusion that the scope of prosecutorial immunity should be different when the police, rather than a member of the public, claims indemnity for negligent advice during the investigative process.

Clark v. Ontario (Attorney General), [2017] O.J. No. 3236, 2017 ONSC 3683 (S.C.J.); Henry v. British Columbia (Attorney General), [2015] 2 S.C.R. 214, [2015] S.C.J. No. 24, 2015 SCC 24, 18 C.R. (7th) 338, 383 D.L.R. (4th) 383, 336 C.R.R. (2d) 270, [2015] 6 W.W.R. 407, 70 B.C.L.R. (5th) 1, 470 N.R. 200, 369 B.C.A.C. 47, 2015EXP-1352, J.E. 2015-743, 251 A.C.W.S. (3d) 590; Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86, 60 D.L.R. (4th) 609, 98 N.R. 321, J.E. 89-1206, 35 O.A.C. 161, 41 Admin. L.R. 1, 49 C.C.L.T. 217, 37 C.P.C. (2d) 1, 71 C.R. (3d) 358, 42 C.R.R. 1, 16 A.C.W.S. (3d) 318, EYB 1989-67463, consd

Other cases referred to

Ferri v. Root, [2007] O.J. No. 397, 2007 ONCA 79, 279 D.L.R. (4th) 643, 219 O.A.C. 340, 45 C.C.L.T. (3d) 159, 154 A.C.W.S. (3d) 1245; Gilbert v. Gilkinson, 2005 46386 (ON CA), [2005] O.J. No. 5347, 205 O.A.C. 188, 144 A.C.W.S. (3d) 452 (C.A.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 67]; Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, 2007 SCC 41, 285 D.L.R. (4th) 620, 368 N.R. 1, J.E. 2007-1867, 230 O.A.C. 253, 64 Admin. L.R. (4th) 163, 50 C.C.L.T. (3d) 1, 50 C.R. (6th) 279, 40 M.P.L.R. (4th) 1, 160 A.C.W.S. (3d) 573, EYB 2007-124525; Imbler v. Pachtman, 424 U.S. 409 (1976); Kvello Estate v. Miazga, [2009] 3 S.C.R. 339, [2009] S.C.J. No. 51, 2009 SCC 51, [2010] 1 W.W.R. 45, EYB 2009-165741, J.E. 2009-2041, 395 N.R. 115, 337 Sask. R. 260, 69 C.C.L.T. (3d) 1, 313 D.L.R. (4th) 330, 182 A.C.W.S. (3d) 485; McCreight v. Canada (Attorney General) (2013), 116 O.R. (3d) 429, [2013] O.J. No. 3263, 2013 ONCA 483, 287 C.R.R. (2d) 272, 308 O.A.C. 128, 4 C.C.L.T. (4th) 44, 230 A.C.W.S. (3d) 389; Miguna v. Ontario (Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346, 262 D.L.R. (4th) 222, 205 O.A.C. 257, 144 A.C.W.S. (3d) 573 (C.A.); Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, [2001] S.C.J. No. 65, 2001 SCC 66, 206 D.L.R. (4th) 1, 276 N.R. 201, J.E. 2001-1975, 159 C.C.C. (3d) 225, 7 C.C.L.T. (3d) 157, 46 C.R. (5th) 1, 108 A.C.W.S. (3d) 927, REJB 2001-26159; Simon v. Canadian National Railway, [1999] O.J. No. 5547, 1999 1187, 87 A.C.W.S. (3d) 284 (C.A.); Smith v. Ontario, [2016] O.J. No. 6163, 2016 ONSC 7222, 368 C.R.R. (2d) 322, 34 C.C.L.T. (4th) 298, 275 A.C.W.S. (3d) 770 (S.C.J.); [page311] Thompson v. Ontario, [1998] O.J. No. 3917, 56 C.R.R. (2d) 112, 113 O.A.C. 82, 1998 7180, 39 W.C.B. (2d) 540 (C.A.); Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources) (2013), 117 O.R. (3d) 721, [2013] O.J. No. 5117, 2013 ONCA 683, 312 O.A.C. 367, 369 D.L.R. (4th) 90, 78 C.E.L.R. (3d) 57, 5 C.C.L.T. (4th) 179

Statutes referred to

Canadian Charter of Rights and Freedoms

Crown Attorneys Act, R.S.O. 1990, c. C.49, s. 11 [as am.]

Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 8 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21

APPEAL from the order of the motion judge dismissing a motion to strike a cross-claim.

Sunil Mathai and Heather Burnett, for defendants (appellants).

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

Kevin McGivney, for York Regional Police Services Board and YRP #1 defendants.

The judgment of the court was delivered by

SWINTON J.: —

Overview

[1] The Attorney General for Ontario, Michael Hill and John Scott (the "appellants") appeal, with leave, from the order of Matheson J. dated November 29, 2016 [Smith v. Ontario, [2016] O.J. No. 6163, 2016 ONSC 7222 (S.C.J.)] dismissing, in part, their motion to dismiss the cross-claim of the Durham Regional Police Services Board and police officers Leon Lynch, John Johnson Allan, Cindi Bradley, Daniel Anthony Denyer, Jim Burrows, Jeff Kennedy, David Kimmerly and Dianne Jennings (the "respondents"). The question in this appeal is whether it is plain and obvious that the respondents' cross-claim will fail, either because of prosecutorial immunity at common law or because the appellants owe no duty of care in tort to the respondents.

[2] For the reasons that follow, I would allow the appeal on the basis that it is plain and obvious that the respondents' cross-claim will fail because of common law prosecutorial immunity.

Factual Background

[3] This action arose out of an investigation by Durham Regional Police with respect to a cold case murder file. The murder [page312] occurred in 1974. The plaintiff, Alan Smith, was a former neighbour of the victim. In 2009, he was subject to a "Mr. Big" sting conducted by the Durham Regional Police with the co-operation of the York Regional Police and the Ontario Provincial Police. Crown attorneys Michael Hill, John Scott and Gregory O'Driscoll provided legal advice to the Durham police in relation to the investigation and the laying of charges.

[4] Mr. Smith was charged with first degree murder, but he was acquitted at trial. He then sued the police defendants for negligent investigation and other torts. He sued the Attorney General and the three Crown attorneys, alleging that the Crown attorneys had been negligent in providing the police with legal advice during the investigation. He also alleged torts of false arrest and false detention, intentional infliction of emotional distress and breaches of his rights under the Canadian Charter of Rights and Freedoms.

[5] The respondents brought a cross-claim against the Attorney General of Ontario and the Crown attorneys seeking contribution and indemnity on the basis of negligent legal advice and breach of retainer. The cross-claim alleges, at para. 209, that "at all material times DRPS representatives consulted with and relied in good faith on legal advice provided by the Crown attorney's office with respect to the investigative methodology employed relating to the investigation of the Plaintiff and the decision to charge him with the murder of Beverly Smith based on the totality of the investigation". Moreover, at para. 210, the respondents claim contribution and indemnity relating to negligent advice and breach of retainer "with respect to the approval of the investigatory methodology employed during the course of the investigation, their advice that the results of the investigation would be admissible in court and that it formed a valid basis for the charging of the Plaintiff".

The Decision of the Motion Judge

[6] The appellants brought a Rule 21 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] motion to strike the plaintiff's claim and the respondents' cross-claim. The motion judge struck the plaintiff's claim on the basis that it was barred by common law prosecutorial immunity.

[7] Although she struck the respondents' cross-claim for contribution, she refused to strike the claim for indemnity. She concluded that it was not plain and obvious that common law prosecutorial immunity applied to the cross-claim or that the Crown attorneys had no duty of care to the police defendants. [page313]

[8] Following her decision, the respondents amended their cross-claim to remove the Attorney General of Ontario and John O'Driscoll as defendants and amended their pleading respecting breach of retainer.

[9] Both in the motion and in the present appeal, the York Police defendants have appeared and argued in support of the respondents' position. They intend to bring a cross-claim similar to that brought by the respondents.

The Issues on this Appeal

[10] There are two issues on this appeal:

(1) Did the motion judge err in refusing to strike the cross-claim because it was not plain and obvious that common law prosecutorial immunity applied?

(2) Did the motion judge err in concluding that it was not plain and obvious that the Crown attorneys owed no duty of care to the police defendants?

The Standard of Review

[11] The standard of review is correctness on an appeal concerning a motion to strike pursuant to Rule 21 (see McCreight v. Canada (Attorney General) (2013), 116 O.R. (3d) 429, [2013] O.J. No. 3263, 2013 ONCA 483, at para. 38).

Analysis

The test on a Rule 21 motion

[12] The motion judge correctly set out the test to be applied on a Rule 21 motion. On such a motion, the court must consider the following elements:

The material facts pleaded are to be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous, incapable or proof, or are bald statements of fact.

The novelty of the cause of action is not a bar to the action proceeding.

The statement of claim must be read generously to allow for drafting deficiencies.

The claim must be allowed to proceed unless it is plain and obvious that it has no reasonable prospect of success. [page314]

(See, for example, Trillium Power Wind Corp. v. Ontario (Natural Resources) (2013), 117 O.R. (3d) 721, [2013] O.J. No. 5117, 2013 ONCA 683, 369 D.L.R. (4th) 90, at paras. 30 and 31.)

Common law prosecutorial immunity

[13] Crown attorneys enjoy two kinds of immunity from civil actions: statutory immunity, as set out in s. 8 of the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, as amended by S.O. 2009, c. 33, Sch. 2, s. 46; and common law prosecutorial immunity. In these reasons, the focus is on prosecutorial immunity at common law.

[14] Prosecutorial immunity has its roots in Crown prerogative. Historically, the Crown could not be held liable in tort. While most of the prerogatives have been abolished or modified by statute, Crown attorneys in Ontario continued to enjoy absolute immunity from liability for tort claims until the decision in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J. No. 86. In that case, the Supreme Court of Canada held for the first time that there was an exception to prosecutorial immunity for a civil claim based on the tort of malicious prosecution.

[15] Nelles was decided under the earlier Ontario Rules of Practice, not the present Rule 21. However, the test applied was essentially the same as on a Rule 21 motion: should the pleading be struck because it disclosed no reasonable cause of action? At issue was a claim against the Crown in right of Ontario, the Attorney General and Crown attorneys for damages for malicious prosecution. Four of the six judges held that the Attorney General and the Crown attorneys did not enjoy absolute immunity from civil liability, thus allowing the claim for damages for malicious prosecution to proceed (Lamer J. wrote for himself, Dickson C.J.C. and Wilson J.; La Forest J. concurred on the issue of common law immunity).

[16] Lamer J. discussed the state of the law respecting prosecutorial immunity in various Canadian provinces and in the United States. He considered and expressly rejected the "functional approach" to prosecutorial immunity discussed by the United States Supreme Court in Imbler v. Pachtman, 424 U.S. 409 (1976). A functional approach would draw a line between judicial or advocacy functions and other functions of prosecutors, such a role in an investigation. At para. 31, Lamer J. stated,

The American position, in any of its forms, demonstrates the impracticality of the functional approach to prosecutorial immunity. In my view, the functional approach leads to arbitrary line drawing between prosecutorial functions. This line drawing exercise is made nearly impossible by the reality that many prosecutorial functions are multi-faceted and cannot be neatly [page315] categorized. Further, it must be noted that however one categorizes a prosecutor's function it is still that of the prosecutor. If it can be demonstrated that a prosecutor has acted without reasonable cause and has acted with malice then does it really matter which functions he was carrying out? In my view to decide the scope of immunity on the basis of categorization of functions is an unprincipled approach that obscures the central issue, namely whether the prosecutor has acted maliciously. If immunity is to be qualified it should be done in a manner other than by the drawing of lines between quasi-judicial and other prosecutorial functions.

[17] The majority then went on to consider whether a Crown attorney should enjoy absolute immunity from liability for the tort of malicious prosecution. Lamer J. discussed policy considerations, including the concern that the possibility of civil liability would have a chilling effect on the Crown attorney's exercise of discretion. He concluded public confidence in the administration of justice would be undermined if there were absolute immunity in a case of malicious prosecution -- that is, where the Crown attorney is alleged to have deliberately and maliciously used his or her public office. He emphasized the following, at para. 51:

We are not dealing with merely second-guessing a Crown Attorney's judgment in the prosecution of a case, but rather with the deliberate and malicious use of the office for ends that are improper and inconsistent with the traditional prosecutorial function.

[18] He noted in the following paragraph that "errors in the exercise of discretion and judgment are not actionable". Again, at para. 55, he emphasized that in determining that the Crown attorney does not enjoy absolute immunity from liability for the tort of malicious prosecution"we are not dealing with errors in judgment or discretion or even professional negligence". In other words, the exception to prosecutorial immunity was grounded in policy concerns regarding the deliberate misuse of public office.

[19] Following Nelles, the Supreme Court of Canada reaffirmed that Crown attorneys were immune from civil liability for acts taken in the course of the exercise of prosecutorial discretion unless malice was proved (see Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, [2001] S.C.J. No. 65, 2001 SCC 66, at para. 4; Kvello Estate v. Miazga, [2009] 3 S.C.R. 339, [2009] S.C.J. No. 51, 2009 SCC 51, at paras. 43 and 51).

[20] Henry v. British Columbia (Attorney General), [2015] 2 S.C.R. 214, [2015] S.C.J. No. 24, 2015 SCC 24 is the second case in which the Supreme Court of Canada has recognized an exception to absolute immunity from civil liability for Crown attorneys. The court held there was an exception where the Crown attorney is alleged to have intentionally withheld disclosure in a criminal proceeding contrary to an accused's Charter right to disclosure. The plaintiff in that case made a claim for [page316] damages under s. 24(1) of the Charter for a violation of his constitutional right to disclosure. Moldaver J., writing for the majority, held that the plaintiff was not required to prove malice. However, the plaintiff was required to show that "the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused's ability to make full answer and defence" (at para. 31). He described this as a "high threshold".

[21] In reaching his decision in Henry, Moldaver J. reviewed some of the policy considerations discussed by Lamer J. in Nelles. For example, he stated that "[t]he public interest is not well served when Crown counsel are motivated by fear of civil liability, rather than their sworn duty to fairly and effectively prosecute crime" (at para. 40).

The positions of the parties

[22] The appellants argue that the motion judge erred in two ways. First, she failed to apply binding appellate authority on prosecutorial immunity. In effect, she found that there could be a new exception to prosecutorial immunity depending on the identity of the claimant. Second, she essentially applied a functional approach in determining the scope of prosecutorial immunity, although this approach had been rejected explicitly in Nelles and implicitly in Henry.

[23] The respondents and the York Regional Police defendants argue that the decision of the motion judge should be upheld because the claim against the Crown attorneys for negligent legal advice is novel. They submit that the functional approach to immunity is appropriate, as the existing case law has only recognized immunity for actions taken in the exercise of core prosecutorial discretion. They also argue that the law has evolved to recognize that police can be liable for a tort of negligent investigation (see Hill v. Hamilton-Wentworth (Regional Municipality) Regional Police Services Board, [2007] 3 S.C.R. 129, [2007] S.C.J. No. 41, 2007 SCC 41), and it is not plain and obvious that prosecutorial immunity would bar a claim against Crown attorneys arising from negligent advice given to police during the course of an investigation.

The motion judge erred in allowing the cross-claim for indemnity to proceed

[24] The motion judge's reasons respecting the Crown attorneys' immunity from the respondents' cross-claim are brief. [page317] In three paragraphs, she distinguished the plaintiff's situation from that of the police defendants. She concluded that the focus of the decided cases was on the rights of individual citizens and not the police (at para. 137). Given that the law respecting prosecutorial immunity was developed in the context of civil claims by members of the public and not in the context of claims by the police, she refused to strike the cross-claim for indemnity (at para. 138).

[25] In my view, the motion judge erred. Given the existing appellate authority on prosecutorial immunity, the nature of the claim -- that is, a claim in negligence -- and policy considerations, it is plain and obvious that the claim of the respondents will fail.

[26] The jurisprudence of the Supreme Court of Canada has made it clear that there is a very high threshold to establish an exception to prosecutorial immunity. Malice must be established in the context of a claim for damages for malicious prosecution (see Nelles, Proulx and Miazga). Intentional non-disclosure must be proven in a claim for damages for the breach of the Charter right to disclosure in a criminal proceeding (see Henry).

[27] The Court of Appeal for Ontario has actually dealt with a motion to strike in the context of a tort claim against Crown attorneys based on negligent investigation. In Thompson v. Ontario, 1998 7180 (ON CA), [1998] O.J. No. 3917, 56 C.R.R. (2d) 112 (C.A.), the Court of Appeal cited Nelles for the proposition that common law immunity protected Crown attorneys against claims based in negligence (at para. 56). Subsequently, in Gilbert v. Gilkinson, 2005 46386 (ON CA), [2005] O.J. No. 5347, 205 O.A.C. 188 (C.A.), the Court of Appeal reiterated, at para. 7, that "[t]here is no claim in negligence against the Crown for prosecutorial misconduct" (leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 67). The following cases also support this proposition: Simon v. Canadian National Railway, [1999] O.J. No. 5547, 1999 1187 (C.A.), at para. 6; Miguna v. Ontario (Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346, 262 D.L.R. (4th) 222 (C.A.), at para. 11; and Ferri v. Root, [2007] O.J. No. 397, 2007 ONCA 79, 279 D.L.R. (4th) 643, at para. 98.

[28] Those cases are binding on the Divisional Court. Based on the current legal authority, it is clear that Crown attorneys enjoy immunity from a civil suit in negligence arising from the exercise of their official functions. It is only when they act with malice or intentionally breach the Charter disclosure right that they can be subject to a civil action for damages.

[29] The respondents argue that it is not plain and obvious that the claim will fail because there has been a subsequent decision that reaches the same conclusion as that of the motion judge -- [page318] that is, it is not plain and obvious that the claim of negligence and misfeasance in public office brought by police officers against the Attorney General would fail (see Clark v. Attorney General for Ontario, [2017] O.J. No. 3236, 2017 ONSC 3683 (S.C.J.)). However, that case essentially follows the analysis of the motion judge in the present case (see paras. 39 and 77).

[30] Instead of following the line of appellate cases, the motion judge drew a distinction between those past cases and the present case on the basis of the identity of the claimant. Earlier in her reasons, she found that the plaintiff's claim against the Crown attorneys based on negligent investigation was barred by prosecutorial immunity. I agree with that conclusion. However, I see no justification for the conclusion that the scope of prosecutorial immunity should be different when the police, rather than a member of the public, claim indemnity for negligent advice during the investigation process.

[31] It is clear from the Supreme Court of Canada's decisions regarding the scope of prosecutorial immunity that policy considerations play an important role in considering whether there should be an exception to absolute immunity. Policy considerations were discussed in both Nelles and Miazga. Moldaver J. also discussed two of these policy concerns in Henry, where he rejected an argument that the policy concerns in the earlier trilogy of cases (Nelles, Proulx and Miazga) were confined to "the exercise of core prosecutorial discretion". Rather, he stated that the policy concerns have a "broader reach and are implicated whenever 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" (at para. 76).

[32] The prime concern is the impact of a qualified immunity on the administration of criminal justice. In particular, the Supreme Court has discussed the concern that Crown attorneys will be diverted from their important public duties in the administration of criminal justice if the threshold for civil liability is set too low. A further concern is the "chilling effect" on Crown counsels' decision making if the threshold is too low. As Moldaver J. stated in Henry"[f]ear of civil liability may lead to defensive lawyering by prosecutors" (at para. 73).

[33] Both of those policy concerns arise in the present case. In particular, the exposure of Crown attorneys to negligence claims, based on their provision of legal advice in the course of a criminal investigation, risks diverting them from their public duty in the administration of justice. Exposure to civil liability could also lead prosecutors to act defensively in carrying out their duties when they give legal advice. [page319]

[34] In the present case, there is no countervailing policy concern that public confidence in the administration of justice will be eroded if Crown attorneys are not held liable in negligence because they have made mistakes in providing legal advice. The policy concern that led to an exception in Nelles was the deliberate and malicious misuse of public office.

[35] The respondents argue that their negligence allegations relate to the actions taken by the Crown attorneys during an investigation, and not in the exercise of their prosecutorial discretion. They are essentially asking this court to draw a distinction between the exercise of "core prosecutorial discretion" and other duties of the Crown attorneys. They argue that the scope of immunity depends on the function performed.

[36] However, Nelles and Henry make it clear that this functional approach to immunity is both impractical and unsound as a basis for determining prosecutorial immunity. Indeed, the actions of alleged negligence in this case relate to the provision of legal advice during the course of a criminal investigation, assistance in obtaining judicial authorization for wiretaps, and provision of advice concerning the laying of criminal charges. These are all actions undertaken in the exercise of the office of Crown attorney, whose duty it is to "aid in the local administration of justice" (Crown Attorneys Act, R.S.O. 1990, c. C.49, s. 11). Indeed, the Report of the Review of Large and Complex Criminal Case Procedures, conducted by the Honourable Patrick J. Lesage and then Professor Michael Code (November 2008), discussed the evolution in the police and Crown relationship pre-charge, with the Crown providing more and more legal advice pre-charge, especially in complex cases. However, the report emphasizes that the Crown and police remain constitutionally independent (at p. 25).

[37] I note that even if the respondents were correct in drawing a line based on the function performed, it is clear, in the context of the pleading, that some of the actions taken by the Crown attorneys -- notably, the giving of advice with respect to criminal charges or assisting in obtaining warrants -- lie within the core of prosecutorial discretion. At a minimum, this conduct of the Crown attorneys would be protected by prosecutorial immunity.

[38] However, when one considers the existing case law, it is plain and obvious that the respondents' cross-claim must fail. No appellate case has suggested that Crown attorneys may be liable for negligence based on the legal advice they have provided to the police in the course of an investigation leading to criminal charges. The policy considerations discussed in the Supreme Court's jurisprudence lead to the conclusion that there should not [page320] be a further exception to immunity for civil claims. The jurisprudence makes it clear that the exceptions to prosecutorial immunity arise when the Crown attorney is acting outside of his or her duty as a "minister of justice". There is no allegation in the present case that the appellants acted in bad faith or intentionally interfered with a Charter disclosure obligation. In these circumstances, where simple negligence is alleged, it is plain and obvious that prosecutorial immunity applies, whether the claimant is a member of the public or the police.

Conclusion

[39] Given my conclusion that it is plain and obvious that the cross-claim must fail because of the scope of prosecutorial immunity, it is not necessary to discuss the second issue, namely, whether the allegation that Crown attorneys have a duty of care in tort to the police has no reasonable prospect of success. I express no opinion on the soundness of the motion judge's conclusion with respect to this issue.

[40] Accordingly, the appeal is allowed, and the cross-claim of the respondents is dismissed. Costs of the appeal and leave to appeal are fixed at $15,000, an amount agreed upon by the parties, payable jointly by the respondents and the York defendants to the appellants.

[41] The appellants also seek costs of the motion below, given their total success on the motion. The motion judge had awarded no costs because success was divided.

[42] I would award costs of the motion to the appellant in the amount of $5,000, payable jointly by the Durham defendants and by the York defendants.

Appeal allowed.

End of Document