Ontario (Attorney General) v. Clark, 2021 SCC 18, [2021] 1 S.C.R. 607

SUPREME COURT OF CANADA

Appeal Heard: October 15, 2020 Judgment Rendered: April 30, 2021 Docket: 38687

Between: Attorney General of Ontario Appellant and Jamie Clark, Donald Belanger and Steven Watts Respondents - and - Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Toronto Police Chief James Ramer, Canadian Association of Chiefs of Police, Canadian Association of Crown Counsel and Ontario Crown Attorneys' Association Interveners

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 62)

Abella J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. concurring)

Dissenting Reasons: (paras. 63 to 173)

Côté J.

Attorney General of Ontario Appellant

v.

Jamie Clark,

Donald Belanger and

Steven Watts Respondents

and

Attorney General of New Brunswick,

Attorney General of Manitoba,

Attorney General of British Columbia,

Attorney General of Saskatchewan,

Attorney General of Alberta,

Toronto Police Chief James Ramer,

Canadian Association of Chiefs of Police,

Canadian Association of Crown Counsel and

Ontario Crown Attorneys' Association Interveners

Indexed as: Ontario (Attorney General) v. Clark

2021 SCC 18

File No.: 38687.

2020: October 15; 2021: April 30.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

on appeal from the court of appeal for ontario

Crown law — Prosecutorial immunity — Misfeasance in public office — Police officers commencing misfeasance claim against Attorney General on basis of Crown prosecutors' failure in conduct of criminal trials to challenge accused's claims of assault by police officers during arrest — Officers alleging that they suffered reputational harm and seeking damages — Whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors for decisions made in exercise of public duties — Whether claim should be struck.

In June 2009, three officers with the Toronto Police Service arrested M and S in connection with a complaint of armed robbery and forcible confinement. Both men were charged and committed to stand trial. Prior to trial, M brought an application to stay the proceedings against him and to exclude the evidence of a confession he made on the day of the arrest based on his claim that the police beat him during the arrest and caused him a serious rib injury. The Assistant Crown Attorney and a senior Crown Attorney agreed that M's confession would not be admissible, and the charges against M were stayed. The jury trial against S proceeded and he was convicted. After his conviction, S filed a stay application alleging that the officers assaulted him and M during their arrest. M and S both testified on the stay application. The Assistant Crown Attorney did not call the officers to give evidence and conceded that the assaults occurred. The judge accepted the evidence and reduced S's sentence. Her reasons described the assaults in detail and described the officers' conduct as "police brutality". Those findings were reported in the media. The Special Investigations Unit ("SIU") and the Toronto Police Service Professional Standards Unit ("PSU") then conducted reviews of the allegations of misconduct against the officers. The SIU discontinued its proceedings when M declined to participate; the PSU concluded that the alleged misconduct could not be substantiated.

S appealed the decision not to stay the proceedings. The Court of Appeal allowed S's appeal and entered a stay of proceedings, noting that the appeal Crown did not contest the evidence of the assaults. It strongly criticized the officers' conduct. Its findings were reported in the media. After the appeal, the SIU reopened its investigation and concluded that M's rib injury post‑dated the arrest and that the allegations against the police were not substantiated by the evidence. An Ontario Provincial Police review concluded that the PSU investigation was thorough and that there was no reason to refute its conclusions.

The officers sued the Attorney General for negligence and misfeasance committed by the Assistant Crown Attorney, the senior Crown Attorney and the appeal Crown Attorney. They sought general damages for negligence and misfeasance, plus aggravated, exemplary and punitive damages. They claimed to have suffered irreparable harm to their reputations and credibility. The Attorney General moved to strike the claim for failing to disclose a cause of action. The motions judge struck the negligence claim but allowed the misfeasance claim to proceed, and this decision was upheld on appeal. Only the decision as to the misfeasance claim is appealed to the Court.

Held (Côté J. dissenting): The appeal should be allowed and the misfeasance claim struck.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution, and misfeasance cannot be used to get around this reality. Piercing the immunity of Crown prosecutors to make them accountable to police officers would put Crown prosecutors in perpetual potential conflict with their transcendent public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice. This means that the officers' misfeasance claim would not succeed.

Prosecutorial immunity advances 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 roles as ministers of justice. The principles underlying immunity are the prosecutor's constitutionally protected independence, the risks to objective decision-making, and a concern about diverting prosecutors from their public interest duties. The jurisprudence has recognized that exposing prosecutors to civil liability may create a chilling effect, encouraging decision‑making motivated by a desire to ward off the spectre of liability and obfuscating the prosecutor's core duties to act objectively and independently in the interests of the integrity of the system and the rights of the accused.

The need to safeguard and vindicate the rights of the accused, who is uniquely vulnerable to the misuse of prosecutorial power, is crucial. Allowing police officers to sue the Crown in misfeasance for decisions prosecutors make in the course of criminal proceedings would raise profound risks to the rights of the accused and to prosecutorial independence and objectivity, and it would undermine the integrity of the criminal justice system. It would also be fundamentally incompatible with the mutually independent relationship between the police and the prosecutor: the police's role is to investigate crime; the Crown prosecutor's role is to assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor's duties to the administration of justice and the accused.

For prosecutors to be at risk of civil liability for reputational harm to police officers means considering irrelevant considerations and risking independence and objectivity, the core of the prosecutor's role. Police suing prosecutors for decisions they make in the course of a criminal prosecution is a recipe for putting prosecutors in conflict with their duty to protect the integrity of the process and the rights of the accused. Beyond the risk of actual conflict, the appearance of such a conflict would be equally damaging to the integrity of the administration of justice. Permitting police lawsuits against Crown prosecutors would suggest to the public and to accused persons that police were policing prosecutions through the use of private law, imperiling public confidence in the independent and objective ability of prosecutors to conduct fair trials. The police have a legitimate expectation and interest in their reputations not being unfairly impaired, but the solution cannot be to make prosecutors accountable to them in a way that obliterates the independence between police and prosecutors and is inconsistent with the Crown's core public duties to the administration of justice and to the accused.

Per Côté J. (dissenting): The appeal should be dismissed. Prosecutorial immunity should not apply to claims for misfeasance in public office brought by police officers who suffered harm as a result of deliberate and unlawful conduct by prosecutors in connection with serious criminal allegations of police misconduct.

The rule of law requires equality before the law, and is incompatible with absolute immunities. The Court has recognized two exceptions to prosecutorial immunity in favour of accused persons: the torts of malicious prosecution and wrongful non‑disclosure. Although the protection of prosecutorial independence is constitutionally entrenched in s. 7 of the Charter , the scope of prosecutorial immunity is a matter of policy. Prosecutorial independence translates into two policy concerns which are meant to gauge the risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice: the risk of creating a chilling effect on the exercise of prosecutorial discretion and the risk of diverting prosecutors from their public duties. These concerns must not be invoked like a mantra to justify the application of prosecutorial immunity in every situation not falling within the exceptions recognized for the benefit of accused persons; rather, they should be considered in light of the particular liability threshold applicable to the tort at issue. A two‑step analysis should be used to decide whether prosecutorial immunity should be applied in a particular situation: the first step requires determining whether there are cogent policy reasons for piercing the immunity, and the second step requires determining whether the liability threshold for the tort at issue is high enough to tamp down the twin policy concerns and to safeguard prosecutorial independence.

With respect to the first step, four policy reasons justify not applying prosecutorial immunity in cases where police officers suffered serious damages arising from unlawful and deliberate prosecutorial misconduct: (1) the tactical nature of the decisions involved; (2) the significance of the interests at stake; (3) the lack of meaningful alternative remedies and accountability mechanisms; and (4) public confidence in the office of prosecutor and in the police.

First, the principle of prosecutorial independence does not apply to decisions pertaining to the handling of allegations of police brutality because they are, in general, tactical decisions falling outside the core of prosecutorial discretion. The principle of prosecutorial independence seeks to protect first and foremost the core of prosecutorial discretion, including decisions about the nature and extent of the prosecution (decisions to press charges, to enter a stay of proceedings, to enter into a plea bargain, to withdraw from proceedings and to take control of a private prosecution). Decisions that do not pertain to the nature and extent of the prosecution, such as tactical decisions, fall outside the scope of core prosecutorial discretion, so interfering with them does not implicate prosecutorial independence to the same extent. In any event, any conduct amounting to bad faith or malice falls outside the core and does not engage prosecutorial independence.

Second, just as the significance of the interests of accused persons may prevent the application of prosecutorial immunity, the significance of the interests at stake for the police officers weighs in favour of a conclusion that prosecutorial immunity does not apply. Findings of police brutality can have a profound impact on the officers' dignity, professional life, reputation and mental health. Those findings could also leave the officers open to professional discipline, or to civil and criminal liability. In addition, they would make the burden of proving the reasonableness of the use of force or self‑defence in subsequent proceedings much more difficult.

Third, the available alternative remedies are unable to make the victims whole again. Disciplinary proceedings against the prosecutors before the Law Society or administrative sanctions from their employer carry little weight in comparison with prior judicial determinations of police brutality and torture made by a criminal court. Only exculpatory findings made by a civil court which had the benefit of all the evidence and did a thorough analysis can clear police officers' names once and for all. However, this remedy is contingent on an accused person's decision to bring a civil suit against the police; if the accused person decides not to sue the police, the officers are unable to challenge the findings of police brutality in a court of law because prosecutorial immunity deprives them of an autonomous access to the civil courts. If the immunity is displaced and the officers are able to bring their own action against the prosecutors to take issue with the mishandling of the allegations of police brutality, the officers will be in a position to actively vindicate their reputations.

Finally, not applying prosecutorial immunity in such cases reinforces public confidence in both the office of prosecutor and the police. Public confidence in the office of prosecutor is better served when prosecutors are made accountable than when they are absolved from any misconduct. Protecting prosecutors who act unlawfully in a deliberate manner erodes public confidence in the office of Crown prosecutor. Prosecutorial immunity also undermines public confidence in the police. Where police officers are unable to redress their records before another court, their damaged reputation impedes the police's capacity to investigate and protect and hampers the prosecution of crime. It also makes them vulnerable to the defence's attacks when they testify, weakening the Crown's case as a result and potentially allowing some guilty accused persons to unduly avoid convictions.

With respect to the second step, the liability threshold for the tort of misfeasance in public office places the bar high enough to mitigate the twin policy concerns and to safeguard prosecutorial independence: a plaintiff must establish deliberate misconduct that demonstrates bad faith or dishonesty; inadvertent or negligent action of public officers are not enough. This high threshold must be considered in the context of the class of potential claimants and the prosecutorial activity at issue. The class of potential claimants — police officers facing allegations of serious misconduct in a criminal case — is very narrow, and the prosecutors' conduct at issue here does not fall within the core of prosecutorial discretion. When considered in this specific context, the high threshold provided by the elements of misfeasance in public office adequately protects against a chilling effect on the exercise of prosecutorial discretion, interference with prosecutorial independence, and the diversion of prosecutors from their duties. Finally, although permitting police officers to bring misfeasance claims may result in contradictory decisions, relitigation is necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole when the first proceeding is tainted by fraud or dishonesty, when fresh, new evidence, previously unavailable, conclusively impeaches the original results, or when fairness dictates that the original result should not be binding in the new context.

In the instant case, the officers have adequately pleaded the four essential elements of misfeasance in public office. Accordingly, their misfeasance claim should be allowed to continue.

Cases Cited

By Abella J.

Considered: Nelles v. Ontario , [1989] 2 S.C.R. 170; referred to: R. v. Singh , 2012 ONSC 2028 ; R. v. Singh , 2012 ONSC 4429 ; R. v. Singh , 2013 ONCA 750 , 118 O.R. (3d) 253; Odhavji Estate v. Woodhouse , 2003 SCC 69 , [2003] 3 S.C.R. 263; Powder Mountain Resorts Ltd. v. British Columbia , 2001 BCCA 619 , 94 B.C.L.R. (3d) 14; Three Rivers District Council v. Bank of England (No. 3) (2000), [2003] 2 A.C. 1 ; Miazga v. Kvello Estate , 2009 SCC 51 , [2009] 3 S.C.R. 339; Proulx v. Quebec (Attorney General) , 2001 SCC 66 , [2001] 3 S.C.R. 9; Smith v. Ontario (Attorney General) , 2019 ONCA 651 , 147 O.R. (3d) 305; Krieger v. Law Society of Alberta , 2002 SCC 65 , [2002] 3 S.C.R. 372; R. v. Regan , 2002 SCC 12 , [2002] 1 S.C.R. 297; Boucher v. The Queen , [1955] S.C.R. 16; R. v. Cawthorne , 2016 SCC 32 , [2016] 1 S.C.R. 983; R. v. Power , [1994] 1 S.C.R. 601; Henry v. British Columbia (Attorney General) , 2015 SCC 24 , [2015] 2 S.C.R. 214; R. v. Beaudry , 2007 SCC 5 , [2007] 1 S.C.R. 190.

By Côté J. (dissenting)

Roncarelli v. Duplessis , [1959] S.C.R. 121; Henry v. British Columbia (Attorney General) , 2015 SCC 24 , [2015] 2 S.C.R. 214; Hunt v. Carey Canada Inc. , [1990] 2 S.C.R. 959; R. v. Singh , 2012 ONSC 2028 ; R. v. Singh , 2012 ONSC 4429 ; R. v. Singh , 2013 ONCA 750 , 118 O.R. (3d) 253; Nelles v. Ontario , [1989] 2 S.C.R. 170; Krieger v. Law Society of Alberta , 2002 SCC 65 , [2002] 3 S.C.R. 372; R. v. Cawthorne , 2016 SCC 32 , [2016] 1 S.C.R. 983; Odhavji Estate v. Woodhouse , 2003 SCC 69 , [2003] 3 S.C.R. 263; R. v. Anderson , 2014 SCC 41 , [2014] 2 S.C.R. 167; British Columbia (Attorney General) v. Malik , 2011 SCC 18 , [2011] 1 S.C.R. 657; Hill v. Church of Scientology of Toronto , [1995] 2 S.C.R. 1130; Bou Malhab v. Diffusion Métromédia CMR inc. , 2011 SCC 9 , [2011] 1 S.C.R. 214; Botiuk v. Toronto Free Press Publications Ltd. , [1995] 3 S.C.R. 3; Bent v. Platnick , 2020 SCC 23 , [2020] 2 S.C.R. 645; Reference re Public Service Employee Relations Act (Alta.) , [1987] 1 S.C.R. 313 ; Wallace v. United Grain Growers Ltd. , [1997] 3 S.C.R. 701 ; Day v. Woodburn , 2019 ABQB 356 , 96 Alta. L.R. (6th) 302; Nelles v. The Queen in right of Ontario (1985) , 51 O.R. (2d) 513; Bosada v. Pinos (1984) , 44 O.R. (2d) 789; Proulx v. Quebec (Attorney General) , 2001 SCC 66 , [2001] 3 S.C.R. 9; Miazga v. Kvello Estate , 2009 SCC 51 , [2009] 3 S.C.R. 339; Watkins v. Secretary of State for the Home Department , [2006] UKHL 17, [2006] 2 A.C. 395 ; R. v. McNeil , 2009 SCC 3 , [2009] 1 S.C.R. 66; Three Rivers District Council v. Bank of England (No. 3) , [2003] 2 A.C. 1 ; Alberta (Minister of Public Works, Supply & Services) v. Nilsson , 1999 ABQB 440 , 246 A.R. 201, aff'd 2002 ABCA 283 , 320 A.R. 88; Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , s. 7.

Criminal Code , R.S.C. 1985, c. C‑46, ss. 25, 34 , 269.1(2) .

Crown Attorneys Act , R.S.O. 1990, c. C.49, ss. 6(5), 8 .

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

Authors Cited

Chamberlain, Erika. Misfeasance in a Public Office . Toronto: Thomson Reuters, 2016.

Code, Michael. "Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg" (2009), 34 Queen's L.J . 863.

Horsman, Karen, and Gareth Morley, eds. Government Liability: Law and Practice . Toronto: Thomson Reuters, 2020 (loose‑leaf updated November 2020, release 36).

Law, J. M. "A Tale of Two Immunities: Judicial and Prosecutorial Immunities in Canada" (1990), 28 Alta. L. Rev. 468.

Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution , vol. 1, Findings and Recommendations . Halifax, 1989.

Ontario. Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions . Toronto, 1993.

Ontario. The Commission on Proceedings Involving Guy Paul Morin: Report , vol. 2. Toronto, 1998.

Rosenberg, Marc. "The Attorney General and the Administration of Criminal Justice" (2009), 34 Queen's L.J. 813.

Sterling, Lori, and Heather Mackay. "Constitutional Recognition of the Role of the Attorney General in Criminal Prosecutions: Krieger v. Law Society of Alberta " (2003), 20 S.C.L.R. (2d) 169 .

APPEAL from a judgment of the Ontario Court of Appeal (Lauwers, Huscroft and Trotter JJ.A.), 2019 ONCA 311 , 56 C.C.L.T. (4th) 1, [2019] O.J. No. 2027 (QL), 2019 CarswellOnt 5941 (WL Can.), affirming a decision of Stinson J., 2017 ONSC 3683 , [2017] O.J. No. 3236 (QL), 2017 CarswellOnt 9706 (WL Can.). Appeal allowed, Côté J. dissenting.

Sunil Mathai and Ananthan Sinnadurai , for the appellant.

Lorne Honickman and Michael Lacy , for the respondents.

Patrick McGuinty , for the intervener the Attorney General of New Brunswick.

Amiram Kotler , for the intervener the Attorney General of Manitoba.

Tara Callan , for the intervener the Attorney General of British Columbia.

Michael J. Morris , for the intervener the Attorney General of Saskatchewan.

Christine Rideout , Q.C. , for the intervener the Attorney General of Alberta.

Earl A. Cherniak , Q.C. , for the intervener Toronto Police Chief James Ramer.

Rachel Huntsman , Q.C. , for the intervener the Canadian Association of Chiefs of Police.

Paul J. J. Cavalluzzo , for the interveners the Canadian Association of Crown Counsel and the Ontario Crown Attorneys' Association.

The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. was delivered by

[ 1 ] Abella J. — The issue in this appeal is whether prosecutorial immunity precludes misfeasance claims by police officers against Crown prosecutors for decisions they make in the exercise of their public duties.

Background

[ 2 ] Three officers with the Toronto Police Service, Jamie Clark, Donald Belanger and Steven Watts, sued the Attorney General of Ontario for negligence and misfeasance in public office. Their claim is based on the alleged misconduct of Crown prosecutors in the way they dealt with stay applications brought by two accused persons who claimed that the police officers assaulted them during an arrest.

[ 3 ] This appeal arises from the Attorney General's motion to strike the claim pursuant to Rule 21 of Ontario's Rules of Civil Procedure , R.R.O. 1990, Reg. 194. In the proceedings leading up to this appeal, the courts struck the negligence claim but allowed the misfeasance claim to proceed. Only the misfeasance claim is before this Court.

[ 4 ] In June 2009, the officers arrested Randy Maharaj and Neil Singh in connection with a complaint of armed robbery and forcible confinement. Both men were charged and committed to stand trial.

[ 5 ] Assistant Crown Attorney Sheila Cressman was assigned carriage of the prosecutions. Prior to trial, Mr. Maharaj brought an application to stay the proceedings against him and to exclude the evidence of a confession he made on the day of the arrest based on his claim that the police beat him during the arrest and caused him a serious rib injury.

[ 6 ] Ms. Cressman consulted with a senior Crown attorney, Frank Armstrong, who agreed that Mr. Maharaj's confession would not be admissible. The charges against Mr. Maharaj were stayed.

[ 7 ] The jury trial against Mr. Singh proceeded and he was convicted. After his conviction, Mr. Singh filed a stay application alleging that the officers assaulted him and Mr. Maharaj during their arrest. Mr. Maharaj and Mr. Singh both testified on the stay application. Ms. Cressman did not call the officers to give evidence.

[ 8 ] Ms. Cressman conceded at the stay hearing that the assaults occurred, but argued that the appropriate remedy for Mr. Singh was a reduced sentence. The judge accepted the evidence that the officers assaulted Mr. Singh and Mr. Maharaj. She did not order a stay, finding that a reduced sentence would be a more appropriate remedy. In her reasons, dated March 28, 2012, she described the assaults in detail and, in her reasons for sentence dated July 27, 2012, she described the officers' conduct as "police brutality" ( 2012 ONSC 2028 ; 2012 ONSC 4429 ). Those findings were reported in the media.

[ 9 ] The Special Investigations Unit (SIU) was notified of the officers' conduct, but Mr. Maharaj declined to participate in the SIU investigation. As a result, the SIU did not continue its proceedings. The Toronto Police Service Professional Standards Unit (PSU) then conducted its own review of the allegations of misconduct against the officers, and concluded in a report issued in October 2012, that "[b]ased on the available evidence and analysis conducted, misconduct on the part of the subject officers cannot be substantiated".

[ 10 ] Mr. Singh appealed the decision not to stay the proceedings. The appeal was heard on October 18, 2013, after the PSU had issued its report. The judges at the hearing asked the Crown on the appeal, Amy Alyea, whether disciplinary action or criminal proceedings were initiated against the officers. The officers claim that she did not inform the court of the exculpatory PSU findings or make a fresh evidence application to put those findings before the court.

[ 11 ] The Court of Appeal allowed Mr. Singh 's appeal and entered a stay of proceedings on December 12, 2013 ( 2013 ONCA 750 , 118 O.R. (3d) 253). In its reasons, the court noted that the Crown did not "contest [the evidence of the assaults] on appeal", and strongly criticized the officers' conduct. Its findings were reported in the media.

[ 12 ] After the appeal, the SIU reopened its investigation, interviewed Mr. Maharaj and reviewed the records. In May 2014, it concluded that the rib injury post-dated the arrest and that the allegations against the police were not substantiated by the evidence. The Ontario Provincial Police subsequently conducted its own review of the PSU investigation, concluding on April 9, 2015 that the investigation was thorough and that there was no reason to refute its conclusions.

[ 13 ] On June 22, 2016, the police officers sued the Attorney General for negligence and misfeasance committed by Ms. Cressman, Mr. Armstrong and Ms. Alyea. They sought general damages in the amount of $500,000 for negligence and misfeasance, in addition to $250,000 in aggravated, exemplary and punitive damages for each plaintiff. They claimed to have suffered irreparable harm, including "damage to their reputations and credibility among members of the judiciary, the Attorney General's office, the criminal defence bar and the public at large".

[ 14 ] The negligence pleading was based on Ms. Cressman, Mr. Armstrong and Ms. Alyea's breaches of an alleged duty of care owed by Crown prosecutors to investigating police officers with respect to the conduct of a prosecution.

[ 15 ] The misfeasance pleading was based on the claim that the prosecutors' conduct was deliberately unlawful and committed with knowledge that it would result in reputational harm to the officers. Against Ms. Cressman, the pleading stated that her unlawful conduct included her failure to properly ascertain the veracity of the assault allegations, her failure to call the police as witnesses to refute what the officers described as false and defamatory claims, and her ignoring or being wilfully blind to facts that exculpated the officers.

[ 16 ] Against Ms. Alyea, it was also claimed that she had acted for the improper purpose of protecting Ms. Cressman in not informing the Court of Appeal of the results of the PSU report, which exculpated the officers. The officers also claim that Mr. Armstrong acted unlawfully in breach of his duties, but the claim against him is not particularized.

[ 17 ] The Attorney General moved to strike the claim for failing to disclose a cause of action, arguing that the negligence and misfeasance claims were barred by prosecutorial immunity.

[ 18 ] The motions judge struck the negligence claim but allowed the misfeasance claim to proceed ( 2017 ONSC 3683 ). He found that overriding policy concerns precluded the recognition of a duty of care owed by Crown attorneys to investigating police officers. On the other hand, he found that it was not "plain and obvious" that prosecutors were immune to misfeasance claims brought by police officers.

[ 19 ] The Attorney General appealed the decision to allow the misfeasance claim to go to trial, and the officers appealed the decision to strike the negligence claim. The Court of Appeal for Ontario dismissed both appeals ( 2019 ONCA 311 , 56 C.C.L.T. (4th) 1).

[ 20 ] The Court of Appeal agreed with the motions judge's decision to strike the negligence claim. It found that "based on Crown immunity principles, no claim lies against the Crown in negligence, whether it be simple or gross negligence". Citing the Supreme Court's "steadfast" rejection of negligence-based claims against Crown attorneys even in the context of claims brought by accused persons, it concluded that there is no reason to privilege claims brought by police officers. But it allowed the misfeasance claim to go to trial, finding that Crown attorneys are not immune from civil liability for misfeasance in public office.

[ 21 ] The Attorney General appealed to this Court on the misfeasance issue. The officers did not cross-appeal the striking of the negligence claim.

Analysis

[ 22 ] The elements and proper scope of the tort of misfeasance are not disputed in this appeal. A successful misfeasance claim requires the plaintiff to establish that the public official engaged in deliberate and unlawful conduct in his or her capacity as a public official, and that the official was aware that the conduct was unlawful and likely to harm the plaintiff ( Odhavji Estate v. Woodhouse , 2003 SCC 69 , [2003] 3 S.C.R. 263, at para. 23 , per Iacobucci J.).

[ 23 ] The unlawful conduct anchoring a misfeasance claim typically falls into one of three categories, namely an act in excess of the public official's powers, an exercise of a power for an improper purpose, or a breach of a statutory duty ( Odhavji , at para. 24). The minimum requirement of subjective awareness has been described as "subjective recklessness" or "conscious disregard" for the lawfulness of the conduct and the consequences to the plaintiff ( Odhavji , at paras. 25 and 29; Powder Mountain Resorts Ltd. v. British Columbia (2001), 2001 BCCA 619 , 94 B.C.L.R. (3d) 14 (C.A.), at para. 7 ; Three Rivers District Council v. Bank of England (No. 3) (2000), [2003] 2 A.C. 1 (H.L.), at pp. 194-95 , per Lord Steyn).

[ 24 ] In this case, the misfeasance claim consists of two key allegations. The first is against Ms. Cressman for failing to take sufficient steps to investigate and rebut the claims of police brutality made by the accused in their stay applications. The officers plead that Ms. Cressman acted in deliberate disregard of her oath of office, incorporated in s. 8 of the Crown Attorneys Act , R.S.O. 1990, c. C.49, to act "without favour or affection to any party". The second is that Ms. Alyea, the Crown in Mr. Singh 's appeal, failed to inform the Court of Appeal of the results of the PSU report, thereby acting for the improper purpose of protecting Ms. Cressman.

[ 25 ] This is the first opportunity this Court has had to consider prosecutorial immunity in the context of claims against the Crown brought by police officers for prosecutorial conduct in the course of a criminal proceeding. Until Nelles v. Ontario , [1989] 2 S.C.R. 170, it was generally accepted that Crown prosecutors in Canada had absolute immunity from civil liability (see Miazga v. Kvello Estate , 2009 SCC 51 , [2009] 3 S.C.R. 339, at para. 43 , per Charron J.; Proulx v. Quebec (Attorney General) , 2001 SCC 66 , [2001] 3 S.C.R. 9, at para. 104 , per L'Heureux-Dubé J., dissenting; J. M. Law"A Tale of Two Immunities: Judicial and Prosecutorial Immunities in Canada" (1990), 28 Alta. L. Rev. 468, at p. 505; Lori Sterling and Heather Mackay"Constitutional Recognition of the Role of the Attorney General in Criminal Prosecutions: Krieger v. Law Society of Alberta " (2003), 20 S.C.L.R. (2d) 169, at p. 183, fn. 51).

[ 26 ] Since Nelles , our judgments on prosecutorial liability have been underscored by a careful balancing between the policy consequences of exposing prosecutors to liability, versus the need to safeguard and vindicate the rights of the accused, who is uniquely vulnerable to the misuse of prosecutorial power.

[ 27 ] To date, the rights of accused persons to a fair trial have been critical in that balancing. In Smith v. Ontario (Attorney General) (2019), 2019 ONCA 651 , 147 O.R. (3d) 305 (C.A.), Tulloch J.A. reviewed our immunity jurisprudence and aptly captured the critical considerations running through the cases — the importance of vindicating the rights of the accused, and the use of high liability thresholds to militate against the policy consequences of liability:

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 . . . .

However, this powerful countervailing interest did not lead the Supreme Court to accept a negligence-based standard of liability, even for Charter breaches. [paras. 97-98]

[ 28 ] As Charron J. explained in Miazga , immunity advances "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'" (para. 47). The principles underlying immunity are the prosecutor's constitutionally protected independence, the related risks to objective decision-making and a concern about diverting prosecutors from their public interest duties.

[ 29 ] Independence has been held to be "so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched" ( Miazga , at para. 46 ). In Krieger v. Law Society of Alberta , 2002 SCC 65 , [2002] 3 S.C.R. 372, Iacobucci and Major JJ. explained:

It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions . . . .

This side of the Attorney General's independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process . . . .

. . . The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict. [paras. 30-32]

[ 30 ] In Miazga , Charron J. observed that "well-established public law principles relating to Crown independence and prosecutorial discretion" cannot be ignored in the context of private law prosecutorial liability (para. 5). The principle of independence is tied to the prosecutor's obligation to make objective and fair decisions. That is why the jurisprudence has recognized that exposing prosecutors to civil liability may create a "chilling effect", encouraging decision-making motivated by a desire to ward off the spectre of liability and obfuscating the prosecutor's core duties to act objectively and independently in the interests of the integrity of the system and the rights of the accused.

[ 31 ] As LeBel J. explained in R. v. Regan , 2002 SCC 12 , [2002] 1 S.C.R. 297, at para. 65 , the "seminal concept of the Crown as ' Minister of Justice'" derives from Boucher v. The Queen , [1955] S.C.R. 16, in which Rand J. said:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime . . . . The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. [pp. 23-24]

[ 32 ] This means that the responsibility of the Crown includes the obligation to act objectively, independently and fairly toward the accused. These imperatives are "not confined to the courtroom and attac[h] to the Crown Attorney in all dealings in relation to an accused" more generally ( Regan , at paras. 155-56 , per Binnie J., dissenting). In R. v. Cawthorne , 2016 SCC 32 , [2016] 1 S.C.R. 983, this Court recognized that an accused person has a constitutional right, as a principle of fundamental justice under s. 7 of the Charter , to be tried by a prosecutor who acts independently of improper purposes (paras. 23-26, per McLachlin C.J.).

[ 33 ] The Attorney General and its agents are also required to act as protectors of the public interest in the discharge of their prosecutorial functions ( Cawthorne , at para. 27 ). They act in "the interest of the community to see that justice is properly done" ( R. v. Power , [1994] 1 S.C.R. 601, at p. 616, per L'Heureux-Dubé J.). Their ultimate task "is to see that the public interest is served, in so far as it can be, through the use, or non-use, of the criminal courts" ( Regan , at para. 159 , per Binnie J., dissenting in the result, quoting Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) ("Martin Report"), at p. 117 (emphasis deleted)).

[ 34 ] In Nelles , in the course of reviewing the common law authorities in favour of absolute immunity, Lamer J. explained that immunity "encourages public trust in the fairness and impartiality of those who act and exercise discretion in the bringing and conducting of criminal prosecution" and avoids a "chilling effect on the prosecutor's exercise of discretion" arising from "the threat of personal liability for tortious conduct" (pp. 178-79, see also p. 199; Henry v. British Columbia (Attorney General) , 2015 SCC 24 , [2015] 2 S.C.R. 214, at paras. 71 and 73 , per Moldaver J.).

[ 35 ] Nelles was also the first case from this Court to acknowledge that prosecutorial immunity was not absolute, and could not protect the Crown from claims of malicious prosecution brought by an accused. Lamer J. expanded on the importance of allowing a wrongfully and maliciously accused person to advance a cause of action. Malicious prosecution requires the plaintiff to establish that the prosecutor acted with a demonstrable improper motive or purpose and that reasonable and probable grounds were objectively lacking (pp. 192-93). Absolute immunity would deprive a falsely accused person not only of a private right of action but also of the ability to seek a remedy for unconstitutional deprivations of liberty and security of the person (pp. 195‑96). It would be a "threat to the individual rights of citizens who have been wrongly and maliciously prosecuted" (p. 199). Moreover, public confidence in the administration of justice would suffer if "the person who is in a position of knowledge in respect of the constitutional and legal impact of his conduct is shielded from civil liability when he abuses the process through a malicious prosecution" (p. 195).

[ 36 ] This Court's subsequent decisions on malicious prosecution in Proulx and Miazga affirmed the policy considerations at play in Nelles . In Proulx , Iacobucci and Binnie JJ. stressed that:

Under our criminal justice system, prosecutors are vested with extensive discretion and decision-making authority to carry out their functions. Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess a prosecutor's judgment calls when assessing Crown liability for prosecutorial misconduct. Nelles affirmed unequivocally the public interest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances. Against these vital considerations is the principle that the Ministry of the Attorney General and its prosecutors are not above the law and must be held accountable. Individuals caught up in the justice system must be protected from abuses of power. In part, this accountability is achieved through the availability of a civil action for malicious prosecution. [Citation omitted; para. 4]

[ 37 ] Charron J., in Miazga , confirmed that the test for malicious prosecution strikes a "careful balancing" between the "right of individual citizens to be free from groundless criminal prosecutions and the public interest in the effective and uninhibited prosecution of criminal wrongdoing" (para. 52). She also emphasized the importance of proving a demonstrable improper purpose or motive, which cannot be inferred from an absence of reasonable and probable grounds alone. The plaintiff must demonstrate "that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice" (para. 89). Finally, Charron J. confirmed that the inquiry into reasonable and probable grounds is purely objective. If "objective reasonable grounds did in fact exist at the relevant time, it cannot be said that the criminal process was wrongfully invoked", regardless of the prosecutor's subjective belief (para. 73). This serves as a basis on which meritless claims can be struck before trial ( Miazga , at para. 74 ; Nelles , at p. 197).

[ 38 ] This Court's most recent opportunity to consider the limits of prosecutorial immunity arose in Henry , where it affirmed that immunity could not protect a prosecutor from claims of wrongful non-disclosure by an accused. Ivan Henry had been convicted of sexual offences and imprisoned for nearly 27 years before the British Columbia Court of Appeal quashed his convictions and acquitted him of all charges. He brought a civil suit against the Attorney General for Charter damages arising from the Crown prosecutor's failure to disclose exculpatory evidence. The importance of displacing immunity to allow for an accused to vindicate his Charter rights was uncontested, and the question turned exclusively on the threshold to be applied. Moldaver J. held that liability will be triggered when 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. [para. 31]

As in claims of malicious prosecution, the rights of the accused were central.

[ 39 ] As this brief history of this Court's evolutionary approach to prosecutorial immunity demonstrates, the overriding and compelling justification for restricting immunity is based on fairness to the accused, leading to a greater willingness on the part of courts to scrutinize prosecutorial decisions affecting the rights of the accused (The Honourable Marc Rosenberg"The Attorney General and the Administration of Criminal Justice" (2009), 34 Queen's L.J. 813; see also Michael Code"Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg" (2009), 34 Queen's L.J. 863).

[ 40 ] The question before us, then, in light of the accused-centered policy thread woven through the authorities, is whether we should further encroach on prosecutorial immunity to allow police officers to sue the Crown in misfeasance for decisions prosecutors make in the course of criminal proceedings. In my view, allowing police officers to initiate such causes of action would raise profound risks to the rights of the accused and to prosecutorial independence and objectivity, and it would undermine the integrity of the criminal justice system.

[ 41 ] One of the critical dimensions of a prosecutor's independence that is protected by immunity is, in fact, independence from the police. The police role is to investigate crime. The Crown prosecutor's role, on the other hand, is to assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor's duties to the administration of justice and the accused. Police and Crown prosecutors are expected to "act according to their distinct roles in the process, investigating allegations of criminal behaviour, and assessing the public interest in prosecuting, respectively" ( Regan , at para. 87 ; see also Smith , at para. 72 ).

[ 42 ] In Regan , this Court emphasized the importance to the administration of justice of prosecutorial independence from the police. The issue in Regan concerned prosecutorial involvement in the pre-charge stage of an investigation. Ultimately, LeBel J. held for the majority that Crown involvement in pre-charge interviews did not constitute a per se abuse of process. He observed, however, that the "need for a separation between police and Crown functions has been reiterated in reports inquiring into miscarriages of justice which have sent innocent men to jail" (para. 66).

[ 43 ] Most pertinently, he concluded that "Crown objectivity and the separation of Crown from police functions are elements of the judicial process which must be safeguarded" (para. 70). This sentiment was echoed by Binnie J., when he said:

. . . Crown prosecutors must retain objectivity in their review of charges laid by the police, or their pre-charge involvement, and retain both the substance and appearance of even-handed independence from the police investigative role. This is the Crown Attorney's "Minister of Justice" function and its high standards are amply supported in the cases . . . . [para. 137, dissenting on other grounds]

[ 44 ] The importance of prosecutorial objectivity in the review of charges laid by the police is driven by the fact that "prosecutors provide the initial checks and balances to the power of the police". They act as a "buffer between the police and the citizen" in deciding how to proceed once a charge has been laid (paras. 159-60, per Binnie J.). Independent prosecutorial review of the police's investigative process and decisions helps "ensure that both investigations and prosecutions are conducted more thoroughly, and thus more fairly" (para. 160, per Binnie J., quoting the Martin Report, at p. 39).

[ 45 ] In R. v. Beaudry , 2007 SCC 5 , [2007] 1 S.C.R. 190, the Court made it clear that prosecutorial independence from police is not a one way street. The police "have a particular role to play in the criminal justice system . . . and it is important that they remain independent of the executive branch". Accordingly, the relationship between prosecutors and the police is not a "hierarchical" one. In discharging their respective duties, both the police and the prosecutor have a "discretion that must be exercised independently of any outside influence" (para. 48). Cooperation is encouraged, but independence is mandatory.

[ 46 ] In Smith , Tulloch J.A. characterized the relationship between the prosecutor and the police as one of "mutual independence", which "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" (para. 86, citing the Martin Report, at p. 39).

[ 47 ] Making prosecutors liable to police officers for misfeasance is fundamentally incompatible with this "mutually independent" relationship. Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. To use misfeasance to get around this reality would be to permit a police officer to take a prosecutor to court to challenge the prosecutor's compliance with his or her public duties ( Odhavji , at para. 29). Such a relationship of legal accountability between the prosecutor and the police is irreconcilable with their critically "separate and distinct" roles ( Smith , at para. 65 ).

[ 48 ] The problem is not merely theoretical. As previously noted, the courts' increased willingness to take a more active role in scrutinizing decisions of the Attorney General and its agents, including through the exceptions to prosecutorial immunity, has been driven by the realization that failing to provide appropriate checks and balances on Crown conduct, including the relationship with the police, can lead to gross injustices, including wrongful convictions.

[ 49 ] We have seen deplorable examples of injustice when the roles are integrated. The Report of the Royal Commission on the Donald Marshall Jr. Prosecution concluded that a distinct boundary between the function of the police and the Crown is essential to the proper administration of justice ( Regan , at para. 66 , citing Royal Commission on the Donald Marshall, Jr., Prosecution , vol. 1, Findings and Recommendations (1989), at p. 232). And in the 1998 Report of the Commission on Proceedings Involving Guy Paul Morin, the Commissioner concluded that the Crown's failure to maintain objectivity throughout the process, which contributed to Morin's wrongful conviction, was caused in part by too close contact with the police:

The prosecutors showed little or no introspection about these contaminating influences upon witnesses for two reasons: one, the evidence favoured the prosecution; this coloured their objectivity; two, their relationship with the police which, at times, blinded them, and prevented them from objectively and accurately assessing the reliability of the police officers who testified for the prosecution.

( The Commission on Proceedings Involving Guy Paul Morin: Report (1998), vol. 2, at p. 911, cited in Regan , at para. 69 .)

[ 50 ] This reality was reinforced by the Court of Appeal in this case in its duty of care analysis rejecting the officers' negligence claim. The court recognized that imposing a duty of care on Crown prosecutors toward investigating police officers could interfere with the prosecutors' ability to act independently of police interests. It would "encourage Crown attorneys to focus on extraneous factors during the course of a prosecution" and "have a deleterious effect on the administration of justice by undermining the public's faith in the integrity of independent Crown decision-making" (paras. 87-88).

[ 51 ] It would "tend to distort principled decision-making", which the court explained as follows:

The decision of Crown attorneys to initiate, continue, or terminate a prosecution should be based on whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest. The possibility of civil claims by the police would distort these venerable twin duties. It would have a deleterious effect on the administration of justice by undermining the public's faith in the integrity of independent Crown decision-making. Moreover, exposing Crown attorneys to negligence claims by the police may result in prolonged court proceedings in which Crown attorneys make untenable prosecutorial decisions on Charter motions for fear of being sued. It would encourage the litigation of collateral issues, which does not sit well with the realities of finite criminal justice resources and the pressures of firm constitutional time constraints. [Citation omitted; para. 88]

[ 52 ] The motions judge similarly recognized the risks to the prosecutors' integrity and independence if they were exposed to negligence claims from police officers:

An expansion of the responsibilities of Crown Attorneys to include such a duty could result in cases proceeding to trial merely to resolve the concerns of the police. It would alter what should be a co-operative relationship between the police and Crown Attorneys into a potentially adversarial one, in which police would become not just investigators and witnesses, but also litigants with a stake in the outcome, as well as potential claimants against the Crown Attorneys. The potential for conflict and disruption to the relationship is apparent. [para. 135]

[ 53 ] These policy concerns are no less critical when considering whether prosecutorial immunity should yield to misfeasance claims against a prosecutor by investigating police officers. Being at risk of civil liability for reputational harm to police officers means considering irrelevant considerations and risking independence and objectivity, the core of the prosecutor's role. Police suing prosecutors for decisions they make in the course of a criminal prosecution is a recipe for putting prosecutors in conflict with their duty to protect the integrity of the process and the rights of the accused.

[ 54 ] In this case, for example, after consulting with a senior Crown attorney, the trial Crown exercised her professional judgment not to call any evidence on the hearing of Mr. Singh 's stay application, and to concede the assault allegations made by Mr. Maharaj. Requiring her to take into account the concerns of the police officers would have improperly incorporated policing objectives into her decision making, changing the dynamic and focus of the prosecution. The accused's constitutionally protected rights and the public interest in the efficient administration of justice could potentially be made to defer to prosecutorial anxiety over whether police interests have been sufficiently taken into account.

[ 55 ] With respect to the appeal Crown, the main concern of the officers was that she wrongfully "suppressed" the PSU report from the Court of Appeal in order to protect Ms. Cressman. The transcript of the appeal hearing, however, reveals no suppression. In response to a question from the bench, Ms. Alyea did tell the court that a review was conducted by the Toronto Police Services and that she was not aware of any resulting disciplinary action against the police officers. She offered to provide the court with a copy of the report, but the court did not feel that it was necessary to do so. It is hard to see how this could be characterized as wrongdoing, or even an error in professional judgment.

[ 56 ] Beyond the risk of actual conflict between the prosecutors' core duties and their risk of liability to the police, the appearance of such a conflict would be equally damaging to the integrity of the administration of justice. As the joint interveners the Canadian Association of Crown Counsel and the Ontario Crown Attorneys' Association put it, permitting police lawsuits against Crown prosecutors would suggest to the public and to accused persons that police were "policing prosecutions" through the use of private law, imperiling public confidence in the independent and objective ability of prosecutors to conduct fair trials.

[ 57 ] This stands in stark contrast to the public interest in making prosecutors accountable for malicious prosecution, such as in Nelles , where Lamer J. recognized that public confidence in the system would be damaged if a prosecutor"in a position of knowledge in respect of the constitutional and legal impact of his conduct", were shielded from liability to the accused when he "abuses the process through a malicious prosecution" (p. 195). Here, the public interest argues against, not in favour of piercing prosecutorial immunity.

[ 58 ] Claims brought by the police against prosecutors risk not only the independence and objectivity of the prosecutor, but the accused person's fair trial rights. Those obligations to the accused are jeopardized by accountability to the police whose interests are adverse to those of the accused. As Moldaver J. noted in Henry :

The public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown's role as a quasi-judicial officer. [para. 73]

[ 59 ] The police certainly have a legitimate expectation and interest in their reputations not being unfairly impaired. But the solution cannot be to make prosecutors accountable to them in a way that obliterates the independence between the police and prosecutors and is inconsistent with the Crown's core public duties to the administration of justice and to the accused.

[ 60 ] The same holds true for third parties in general. Liability to third parties can be expected to raise the "chilling" concerns for prosecutors and distracting them from their public duty to promote the administration of justice. On the other hand, as previously noted, our immunity cases have recognized the particular need for remedies to protect accused persons, a concern that is lessened for third parties. In almost all cases of third-party claimants, the balance of these factors will tilt toward immunity.

[ 61 ] Piercing the immunity of Crown prosecutors to make them accountable to police officers puts them in perpetual potential conflict with their transcendent public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice. Since prosecutorial immunity is preserved in these circumstances, it is "plain and obvious" that the officers' misfeasance claim would not succeed.

[ 62 ] I would allow the appeal and grant the Attorney General's motion to strike the officers' claim, with costs.

The following are the reasons delivered by

Côté J. (dissenting) —

TABLE OF CONTENTS

	Paragraph
I. Overview	63
II. Context	68
III. Decisions Below	109
A. Ontario Superior Court of Justice, 2017 ONSC 3683 (Stinson J.)	109
B. Court of Appeal for Ontario, 2019 ONCA 311 , 56 C.C.L.T. (4th) 1 (Lauwers, Huscroft and Trotter JJ.A.)	111
IV. Issues	113
V. Analysis	114
A. Introduction	114
B. Policy Considerations	125
(1) Core Prosecutorial Discretion	126
(2) Significance of the Interests at Stake	132
(3) Lack of Meaningful Alternative Remedies and Accountability Mechanisms	140
(4) Public Confidence in the Office of Prosecutor and in the Police	148
C. Liability Threshold for Misfeasance in Public Office	159
D. Application	167
VI. Conclusion	173

I. Overview

[ 63 ] The rule of law requires equality before the law. In the seminal case of Roncarelli v. Duplessis , [1959] S.C.R. 121, our Court enforced this principle against the head of a provincial government — a premier. The Court held him liable for damages, his conduct having been characterized as malicious by Justice Rand in his leading opinion in that case (p. 141). Roncarelli is emblematic of a conception of the rule of law that is incompatible with absolute immunities. As this conception of the rule of law took hold in the second half of the 20th century, judges and legislators began to view absolute immunities with suspicion and to gradually erode them. Prosecutorial immunity is one example of this. So far, this Court has recognized two exceptions to prosecutorial immunity in favour of accused persons: the torts of malicious prosecution and wrongful non-disclosure. Yet to this day, prosecutors still have absolute immunity from claims brought by third parties to criminal proceedings.

[ 64 ] The respondent police officers ask this Court to recognize a third exception to prosecutorial immunity. They argue that police officers who suffer serious harm as a result of deliberate and unlawful conduct by prosecutors in connection with the handling of serious criminal allegations of police misconduct should be able to seek redress against the Crown through the tort of misfeasance in public office.

[ 65 ] Like the courts below, I am of the view that prosecutorial immunity does not apply in this case. Policy considerations such as the tactical nature of the decisions involved, the significance of the interests at stake, the lack of meaningful alternative remedies and accountability mechanisms, and public confidence in the office of prosecutor and in the police all weigh in favour of piercing the immunity, although in a limited way. Most importantly, police officers who, like the respondents, face findings of police brutality or torture as third parties to a criminal proceeding, are in a position similar to that of accused persons. Although not formally charged, such police officers are, in essence, convicted of serious criminal offences without having had their day in court. Such serious findings may thus have a deleterious effect on their right to liberty and security, their right to dignity and a good reputation, and their mental health — just like criminal charges may have on an accused person.

[ 66 ] Thus, prosecutorial immunity does not apply to claims for misfeasance in public office brought by police officers who suffered harm as a result of deliberate and unlawful conduct by prosecutors in connection with serious criminal allegations of police misconduct. The liability threshold for misfeasance in public office is high enough to avoid a chilling effect on the exercise of prosecutorial discretion. It is also high enough to avoid diverting prosecutors away from their public duties so that they can respond to lawsuits concerning their exercise of discretion. However, in accordance with the cautionary note sounded by Moldaver J. in Henry v. British Columbia (Attorney General) , 2015 SCC 24 , [2015] 2 S.C.R. 214, at para. 33 , that "the prudent course of action is to address new situations in future cases as they arise", these reasons should not be read as displacing the immunity whenever a litigant brings a claim for misfeasance in public office. Not all victims of prosecutorial misconduct are in a position equivalent to that of an accused person, as the respondent police officers are.

[ 67 ] For the following reasons, I would dismiss the appeal. Prosecutorial immunity does not apply to the police officers' claim for misfeasance in public office, and the officers plead all the essential elements of the tort in their statement of claim.

II. Context

[ 68 ] This appeal concerns a motion to strike filed by the Crown. The test on a motion to strike is well established ( Hunt v. Carey Canada Inc. , [1990] 2 S.C.R. 959, at p. 980). This Court must assume that the facts alleged by the respondent police officers in their statement of claim are true. Our task is to determine whether, on that basis, it is plain and obvious that the statement of claim discloses no reasonable cause of action and should be struck out as a result. Neither the unique nature of the facts underlying the respondents' action nor the strength of the Crown's defence is sufficient reason for refusing to allow their claims to move forward ( Hunt , at p. 980). Their claim can be struck out only if it is certain to fail.

[ 69 ] Given that the allegations made by the police officers must be taken to be true, some of the following facts are based on their statement of claim. Those allegations will have to be proved at trial if the officers are to succeed. Some other facts have already been established in previous criminal proceedings.

[ 70 ] Randy Maharaj ("Maharaj") and Neil Singh (" Singh ") were charged with having committed very serious crimes, i.e., armed robbery and forcible confinement, at a company called Crane Supply on February 9, 2009.

[ 71 ] Singh held a position of trust at Crane Supply. He was an employee of the company and had a close relationship with his supervisor, Mohammed Sheikh.

[ 72 ] On the night of the robbery, Mr. Sheikh was the night supervisor at Crane Supply. Singh was working in the yard that night. He punched out at 10:22 p.m. and left the premises. Singh knew that his supervisor was working alone late that night, and he deliberately took advantage of the vulnerable position his supervisor was in. Minutes later, Singh came back to the yard with his accomplice — not to work, but to rob his employer at gunpoint. He had in his line of sight a shipment of copper pipes valued at almost $350,000.

[ 73 ] While doing paperwork in his office, Mr. Sheikh heard a loud bang and his office door was kicked open hard. A masked man pointed a black handgun at him and ordered him to get on his knees. Mr. Sheikh's hands and legs were then zip‑tied, and his eyes were covered with duct tape. This man, who suffered from a heart condition, was left bound and blindfolded on the floor of his office.

[ 74 ] Meanwhile, the robbers searched his office and loaded the shipment of copper pipes worth almost $350,000 onto a large truck. This was a sophisticated robbery. The robbers needed to know how to operate the forklift which had a special attachment designed for Crane Supply and how to mobilize a truck large enough to transport the copper pipes. They also had to know the warehouse security system inside out and the whereabouts of the employees working that night.

[ 75 ] After the robbers left, Mr. Sheikh managed to untie himself and call the police. These events had a profound impact on Mr. Sheikh. Because of the trauma he suffered, he was unable to remain in his supervisory position and was transferred to a position in the warehouse.

[ 76 ] In June 2009, the respondent police officers — Sergeant Jamie Clark, Detective Sergeant Donald Belanger and Detective Sergeant Steven Watts — arrested Maharaj and Singh for armed robbery and forcible confinement. At the time of the arrest, they were members of the Hold Up Squad of the Toronto Police Service. They are experienced police officers with over 70 cumulative years of experience, and they have held various positions in other specialized units.

[ 77 ] The police officers found evidence that Singh and Maharaj had been in close communication on the night of the robbery. Maharaj had texted the words "Zip ties" to Singh 15 minutes before Mr. Sheikh called the police, and Maharaj had been in the vicinity of the Crane Supply yard on that particular night. Singh provided an exculpatory video statement that has been shown to be false; Maharaj provided a video statement inculpating himself and Singh. The falsity of Singh's exculpatory statement has been demonstrated. Singh was convicted, and the application judge analyzed the reduction in sentence on the basis of Singh's false exculpatory statement.

[ 78 ] Following their arrest, Maharaj and Singh were remanded in custody. During their bail hearing, counsel for Maharaj asked the court to put on the record the injuries his client had allegedly suffered during the arrest. He indicated to the court that Maharaj had "visible bumps and scratches" under his ear. However, according to the police officers, no suggestion was made that Maharaj had suffered any serious rib injury as a result of an assault committed by them during his interrogation .

[ 79 ] After the bail hearing, Maharaj was detained at the Maplehurst Detention Centre. While at Maplehurst, Maharaj never complained of any rib injury. The officers submit that only bruises to his upper arm were noted in his medical records at Maplehurst. The medical practitioners at Maplehurst are adamant that if Maharaj had complained about a rib injury, they would have recorded it in the context of their routine medical examination of any new inmate.

[ 80 ] Between July and November 2010, the two accused had their preliminary inquiry. The Crown Attorney at the preliminary inquiry called the three police officers as witnesses. According to the police officers, counsel for Maharaj questioned them about their potential involvement in an assault on his client during the arrest , but he did not otherwise challenge the voluntariness of his client's inculpatory video statement. The officers state that, under oath, they vehemently denied the allegations. Maharaj and Singh were committed to stand trial. Crown Attorney Sheila Cressman ("Trial Crown") was assigned the carriage of the prosecution.

[ 81 ] In advance of the trial, Maharaj's counsel brought an application to stay the proceedings against his client and to exclude his client's confession. Maharaj accused the police officers of having committed a criminal offence by brutally assaulting him to extract an inculpatory statement. The police officers contend that Maharaj's allegations were false. More specifically, Maharaj alleged that, during the interrogation, Sgt. Clark "grabbed him out of his chair and dragged him to an intermediary room and threw him on the ground" ( R. v. Singh , 2012 ONSC 2028 ("decision on Singh's stay application"), at para. 32). Then, Sgt. Clark allegedly "came down on top of him and pinned him down on the ground and began punching him in the ribs for what Maharaj said felt like a lifetime" (para. 32). To add to the brutality, Det. Sgt. Watts supposedly tried to step on Maharaj's testicles while he was on the ground being punched by Sgt. Clark. Maharaj claimed that he had provided an inculpatory statement to make the assault stop.

[ 82 ] To support Maharaj's version of the events, his counsel provided the Trial Crown with his medical record from Maplehurst documenting bruises to his upper arm, an X-ray showing an acute fracture of his ribs, and the bail hearing transcript. The police officers argue that this was the first time — on the eve of the trial and more than two years after the events — that Maharaj alleged that he had suffered a serious rib injury as the result of an assault by the officers during his interrogation . At the bail hearing and the preliminary inquiry, Maharaj had previously alleged only that he had suffered bumps and scratches during the arrest .

[ 83 ] The officers add that the Trial Crown then consulted Dr. Moss, who had viewed the X-ray. Dr. Moss confirmed the existence of a rib fracture but told the Trial Crown, in no uncertain terms, that a patient with such a rib fracture would experience excruciating pain if he or she made any movements with the upper body or arms. Allegedly, Dr. Moss opined that it was possible that the injuries could have occurred on the day of the arrest, but the Trial Crown did not ask him any further questions to determine if the injury could have occurred at another time. The Trial Crown also apparently did not ask him to review Maharaj's videotaped statement from the day of the arrest, which clearly showed that Maharaj had no difficulty lifting his arms and moving his upper body.

[ 84 ] The Trial Crown consulted with a senior Crown Attorney, Frank Armstrong ("Senior Crown"). They agreed that Maharaj's inculpatory statement would be inadmissible because the Crown would be unable to prove beyond a reasonable doubt that it was voluntary in view of the assault allegations. Accordingly, the Senior Crown stayed the charges against Maharaj. However, no stay of proceedings was entered in respect of Singh . The latter was subsequently found guilty at trial.

[ 85 ] Following the stay of the proceedings against Maharaj, Singh filed an application under the Canadian Charter of Rights and Freedoms seeking a stay of his conviction, as well. Had Singh not sought a stay, he would be facing a mandatory minimum five-year sentence for the armed robbery of which he had been convicted. The respondent police officers maintain that the allegations of police brutality made by Singh in support of his Charter application were false, as were those made by Maharaj. In his affidavit and testimony, Singh alleged that he, too, had been a victim of police brutality. He claimed that Sgt. Clark had assaulted him three times in the presence of Det. Sgt. Watts during his interrogation. Singh alleged that Sgt. Clark had struck him behind his head, put a knee into his ribs, strangled him, slammed his head against the wall and hit his back with a closed fist. Singh added that the assaults had left him breathless, on the verge of a blackout and with the inside of his lower lip bleeding. The attack was allegedly so brutal that Singh implored Sgt. Clark to "[j]ust kill me man" (decision on Singh's stay application, at para. 23; R. v. Singh , 2012 ONSC 4429 ("Singh's sentencing decision"), at para. 61). Nevertheless, Singh supposedly exhibited strength and resilience and refused to provide the inculpatory statement the police officers were trying to extract from him.

[ 86 ] Before Singh's Charter application was heard, the Trial Crown had allegedly assured Det. Sgt. Watts that all three officers would be called as witnesses to deny the allegations, as they had had the opportunity to do at the preliminary inquiry. However, at the last minute, the Trial Crown decided not to adduce any evidence to contradict Maharaj's and Singh 's testimony, despite the seriousness of the criminal allegations made against the police officers. Det. Sgt. Watts says that he urged her to change her position but she would not budge. She ignored the officers' concerns about how it would adversely affect them and airily conceded the existence of the assaults and the Charter breach. The Trial Crown thus limited herself to cross-examining Maharaj and Singh and arguing in favour of a reduction in Singh's sentence as the appropriate Charter remedy, instead of a stay.

[ 87 ] During the hearing of the Charter application, Thorburn J. expressed her surprise and discomfort at the absence of the police officers as witnesses. The Trial Crown was quite dismissive when asked what motivated her decision not to call them:

THE COURT: What do I do with the fact that none of these officers testified?

. . . I have Mr. Singh 's . . . testimony, and maybe I believe him and maybe I don't, but . . . if there were some officers who said"Well, we know nothing, I'm sorry, I tapped him on the shoulder, I should never have tapped him on the shoulder, and gosh, darn, look at this, this is terrible" nobody showed up.

[THE TRIAL CROWN]: Well, the Crown didn't call anyone.

THE COURT: Well, yes.

[THE TRIAL CROWN]: And what that means is that the evidence is uncontradicted other than Your Honour of course in accepting that evidence is required to look at internal and external consistencies. So, that's what I'm going to be focusing on. [Emphasis added.]

(A.R., vol. III, at p. 342)

[ 88 ] Earlier, Thorburn J. had specifically asked the Trial Crown whether "there [was] any sort of suggestion that [the injuries] may have come about in some other way" than at the hands of the police (A.R., vol. III, at p. 297). She responded straightforwardly: "There is no evidence that it occurred in any other way " (p. 297 (emphasis added)). Further, she confirmed that the assault had primarily been Sgt. Clark's doing.

[ 89 ] Ultimately, Thorburn J. had no choice but to conclude that the police officers had indeed assaulted Maharaj and Singh, given the Crown's decision to adduce no contradictory evidence and to concede the allegations. However, she refused to order a stay of the proceedings against Singh and preferred instead to reduce his sentence by one year as a remedy for the "police brutality" he had suffered (decision on Singh 's stay application, at para. 49).

[ 90 ] Thorburn J. characterized the police officers' behaviour as "thoroughly reprehensible" and as "police brutality" (decision on Singh 's stay application, at paras. 49‑50). She also vigorously condemned that behaviour:

This significant reduction in sentence is necessary to reflect my very deep concern and condemnation of those who, being selected to uphold the law and preserve justice, assault those entrusted to their care and control . This reduction in Singh 's sentence does not and should not serve as a substitute for further investigation into and punishment of those involved in this reprehensible conduct. [Emphasis added.]

( Singh 's sentencing decision, at para. 64)

[ 91 ] The police officers submit that those findings had a dramatic impact on them. In her reasons, Thorburn J. urged the Crown, on two separate occasions, to ensure that there would be a thorough investigation into the police brutality (decision on Singh 's stay application, at para. 52; Singh's sentencing decision, at para. 64). This triggered additional inquiries by the Special Investigations Unit ("SIU") and the internal Toronto Police Service Professional Standards Unit ("TPSPS Unit"). Thorburn J.'s findings of assault were also widely reported in the media, which allegedly caused serious harm to the police officers' reputations and mental health.

[ 92 ] The SIU did not complete its investigation of the alleged assaults. Since Maharaj refused to cooperate, the SIU withdrew its mandate and terminated its investigation without reaching a definitive conclusion. However, the TPSPS Unit continued its investigation despite the refusal of Maharaj and Singh to cooperate.

[ 93 ] After Thorburn J. released her sentencing decision, internal investigators for the TPSPS Unit provided Dr. Moss with a copy of Maharaj's videotaped statement showing him raising and moving his arms. This being inconsistent with an acute rib injury, Dr. Moss opined that the injury must have been suffered before the day of the arrest and had already healed in the meantime. In light of that revelation and following a thorough investigation of the evidence available, the TPSPS Unit concluded that the allegations "cannot be substantiated" (A.R., vol. III, at p. 421).

[ 94 ] The Trial Crown's decision to concede the allegations of assault is particularly striking. From the transcripts, it is quite obvious that neither Thorburn J. nor the Trial Crown found Singh or Maharaj to be credible witnesses. Moreover, the police officers emphasize that there was little other convincing evidence supporting their testimony.

[ 95 ] Indeed, the Trial Crown said that she had "some serious reservations" about Singh 's "credibility in terms of the extent of the assault" (A.R., vol. III, at p. 299). She suggested that Singh was "embellish[ing] things" and "seriously exaggerating" (pp. 350 and 353). In the same vein, Thorburn J. was quick to underline that Maharaj was not a credible witness because his testimony was tainted by lies and evasiveness:

THE COURT: What do I do about Mr. Maharaj and some of the evidence that he gave that was really not very credible . I mean, he's admitted that he lied before .

. . . He was either lying today or he was lying before, because what he said was different than what he said in the prior occasion . . .

. . . And then his comment about "Oh, I have no idea about zip ties. It depends on what happened before."

. . . "Well, there was no message before. So what I am suppose[d] to take from that? Oh, well, just, you know, I always send messages saying zip ties" come on, I mean . . .

. . . So how credible? What do I do with the fact that he's not the most credible witness? [Emphasis added.]

(A.R., vol. III, at p. 318)

[ 96 ] Some other aspects of their testimony were also hardly believable, if not grotesque. For example, shortly after he was arrested, Singh told Det. Sgt. Watts that he did not know Maharaj, but he later testified, in support of his Charter application, that he knew him and socialized regularly with him while having drinks. He claimed not to have lied to the police. He said that Det. Sgt. Watts' "question was asked in the context of whether he knew another Crane Supply employee, so he replied that he did not know Maharaj as there was no employee named Maharaj" (decision on Singh's stay application, at para. 17).

[ 97 ] As demonstrated above, Singh is a person who did not hesitate to abuse the trust placed in him by his former employer for his own benefit, so his testimony had to be analyzed very carefully as well as his motives for bringing his Charter application. Allegations of assault, if believed, would enable him to avoid going to prison for a minimum of five years. Conceding the allegations, as the Trial Crown did, can certainly be alleged by a plaintiff as evidence of deliberate and unlawful conduct, including an utter lack of the rigour and critical thinking expected from prosecutors and a breach of their duty to act without favour or affection to any party pursuant to s. 6(5) of the Crown Attorneys Act , R.S.O. 1990, c. C.49.

[ 98 ] In addition to the issue of credibility, the police officers argue that the evidence in the Trial Crown's hands clearly showed that the allegations of assault made by Maharaj and Singh were false.

[ 99 ] With respect to Maharaj, the bail hearing transcript and the medical records from Maplehurst made no mention whatsoever of a rib injury. In light of the opinion expressed by Dr. Moss, it could certainly be alleged that it was clear from the videotaped statement that the rib injury had occurred before the day of the arrest. The fact that Maharaj did not allege that he had suffered a rib injury during his interrogation until one week before trial also cast doubt on his version of the events.

[ 100 ] As for Singh , the videotaped statement he gave to the police revealed no "bruising, swelling or other apparent injuries" (decision on Singh's stay application, at para. 27; Singh's sentencing decision, at para. 62). Moreover, while in custody awaiting his bail hearing, Singh never complained about the "assaults", nor did he seek any medical treatment. It was not until one month after the alleged events and 10 days after his release from custody that he visited his doctor for a supposed sore throat.

[ 101 ] In spite of all this, Singh appealed his conviction and sentence. Crown Attorney Amy Alyea ("Appeal Crown") was designated to argue the appeal for the Crown.

[ 102 ] The police officers allege that, by the time Singh 's appeal was heard, the Crown Law Office was well aware of their position that the allegations of assault were fabricated and had been mishandled by the Trial Crown. Det. Sgt. Watts says that, prior to the hearing, he met with the Appeal Crown to explain the situation. Nonetheless, the Appeal Crown made no attempts to investigate further and to rectify the findings of assault before the Court of Appeal.

[ 103 ] During the hearing of Singh 's appeal, the Court of Appeal asked the Appeal Crown questions about what had occurred. According to the police officers, the Appeal Crown did not inform the court about the Trial Crown's mishandling of the prosecution, the exculpatory findings contained in the TPSPS Unit's report, and the likelihood that the allegations were fabricated. The officers allege that the Appeal Crown instead suppressed the evidence in a deliberate attempt to protect her colleagues. As such, they argue that she disregarded the duties attached to the public office she held and acted on the basis of an improper purpose.

[ 104 ] My colleague Justice Abella concludes that the "transcript of the appeal hearing, however, reveals no suppression", and she adds:

In response to a question from the bench, Ms. Alyea did tell the court that a review was conducted by the Toronto Police Services and that she was not aware of any resulting disciplinary action against the police officers. She offered to provide the court with a copy of the report, but the court did not feel that it was necessary to do so. It is hard to see how this could be characterized as wrongdoing, or even an error in professional judgment. [para. 55]

With respect, this is not how I read the transcript. Although the Appeal Crown offered to provide a copy of the report, one may conclude that the way she presented it distorted its content. She correctly stated that no criminal or disciplinary charges had flowed from that report (see A.R., vol. III, at pp. 428, 450-51 and 489-90). However, she did not provide the following nuance: no action had been taken against the police officers as a result of the report, not because the Toronto Police Service had refused to punish their misconduct, but rather because the TPSPS Unit had concluded that the allegations of assault could not be substantiated. The Appeal Crown did not specify why no action had been taken. In other words, one may certainly conclude that this supports the officers' claim that the Appeal Crown suppressed the exculpatory nature of the TPSPS Unit's report. Because the Court of Appeal was deprived of the knowledge of this important distinction, it is not plain and obvious that it was not misled into thinking that the Toronto Police Service had sat idly by and remained silent in the face of police brutality:

Nor does it appear that these officers have been called to account in any meaningful way, although the trial judge made it plain that, in her view, they should be. We were told that an internal investigation was undertaken by the police but that it ceased when the victims, not surprisingly, were unwilling to cooperate. Crown counsel was not able to advise of any charges, disciplinary measures or other consequences flowing from the investigation.

Yet the police had provided no response to the testimony of the appellant and Maharaj on the stay hearing. Indeed, they have not done so to this day. The absence of any meaningful disciplinary measures is telling , in my view, because the inability or refusal of the police to muster a pointed response in the face of such unchallenged allegations of serious criminal conduct by state actors during a criminal investigation makes the case for a stay under the residual category all the more compelling. [Emphasis added.]

( R. v. Singh , 2013 ONCA 750 , 118 O.R. (3d) 253 ("Singh's sentencing appeal"), at paras. 45-46 )

[ 105 ] The Court of Appeal allowed the appeal and stayed Singh 's convictions. In its reasons, the court made some damning findings against the police officers:

What occurred here was not a momentary overreaction by a police officer caught up in the moment of a difficult interrogation. What occurred here was the administration of a calculated, prolonged and skillfully choreographed investigative technique developed by these officers to secure evidence .

The courts must not condone such an approach to interrogation. Real life in the police services is not a television drama. What took place here sullies the reputations of the many good officers in our country, whose work is integral to the safety and security of our society. [Emphasis added; paras. 50-51]

[ 106 ] Here again, these unfounded findings of torture and police brutality were widely reported in the media. The police officers allege that the media reports caused them to suffer additional reputational harm and mental anguish.

[ 107 ] The police officers commenced an action against the Attorney General of Ontario for the alleged misconduct of Ms. Cressman, Mr. Armstrong and Ms. Alyea. They sought $500,000 in general damages plus $250,000 in aggravated, exemplary and punitive damages for each plaintiff.

[ 108 ] The Attorney General of Ontario filed a motion to strike their statement of claim, arguing that prosecutorial immunity barred both the negligence and misfeasance claims.

III. Decisions Below

A. Ontario Superior Court of Justice, 2017 ONSC 3683 (Stinson J.)

[ 109 ] Stinson J. struck out the police officers' negligence claim on the ground that there was no duty of care, but allowed the misfeasance claim to proceed. He was not satisfied that it was plain and obvious that the misfeasance claim was bound to fail.

[ 110 ] Stinson J. found that the respondent police officers had "pleaded the essential elements of the tort of misfeasance in public office" (para. 129). He concluded that the case law did not clearly establish that prosecutorial immunity was a bar to misfeasance claims brought by third parties to criminal proceedings. He thus declined to strike the misfeasance claim.

B. Court of Appeal for Ontario, 2019 ONCA 311 , 56 C.C.L.T. (4th) 1 (Lauwers, Huscroft and Trotter JJ.A.)

[ 111 ] The Court of Appeal upheld the decision rendered by Stinson J. It also concluded that prosecutorial immunity bars negligence claims but not claims for misfeasance in public office. In its view, the high liability threshold for misfeasance in public office was sufficient to protect prosecutorial independence.

[ 112 ] The Court of Appeal also agreed with Stinson J. that the officers had pleaded all the essential elements of the tort of misfeasance in public office.

IV. Issues

[ 113 ] This appeal raises two issues:

(a) whether prosecutorial immunity applies in this case;

(b) if the immunity does not apply, whether the respondent police officers have pleaded all the essential elements of misfeasance in public office.

V. Analysis

A. Introduction

[ 114 ] Historically, the position in common law provinces regarding prosecutorial immunity "rang[ed] from a strong presumption of immunity to absolute immunity" ( Nelles , at p. 175, per Lamer J.). In Nelles , this Court held that the immunity was not absolute and that accused persons could bring malicious prosecution claims against prosecutors. Since then, the Court has recognized a second exception to prosecutorial immunity in favour of accused persons: wrongful non-disclosure ( Henry ).

[ 115 ] The Court of Appeal was of the view that prosecutorial immunity bars negligence claims but not claims for misfeasance in public office. On the other hand, the appellant Crown argues that prosecutorial immunity applies to all civil liability claims, including those brought by third parties such as police officers.

[ 116 ] As for the respondent police officers, they argue that the immunity does not bar third parties such as police officers from bringing misfeasance claims. They say that the policy concerns are not as acute when the claimant is a third party such as a police officer and that, in any event, the high liability threshold for misfeasance in public office sufficiently accommodates these concerns.

[ 117 ] The scope of prosecutorial immunity is a matter of policy ( Nelles , at p. 199; Henry , at para. 32 ). The two policy concerns that justify the immunity are (1) the risk of creating a chilling effect on the exercise of prosecutorial discretion; and (2) the risk of diverting prosecutors from their public duties.

[ 118 ] The first concern is the risk of creating a chilling effect on the exercise of prosecutorial discretion. Fear of liability may lead prosecutors to make decisions based on considerations other than the public interest and the rights of the accused, thus corrupting prosecutorial decision-making.

[ 119 ] The second concern is the risk of diverting prosecutors from their public duties. Expansion of prosecutorial liability may result in prosecutors spending too much time defending themselves against civil actions, thereby diminishing their effectiveness.

[ 120 ] Although the policy concerns with respect to the chilling effect and diversion are real, they must not be invoked like a mantra to justify the application of prosecutorial immunity in every situation not falling within the exceptions recognized for the benefit of accused persons. The analysis must consider all the relevant policy considerations bearing on whether applying the immunity to a particular case is justified.

[ 121 ] Because the twin policy concerns can be accommodated through a high threshold, the analysis should not be over before it starts. A two-step analysis is appropriate. The first step requires determining whether there are cogent policy reasons for not applying the immunity. If so, the second step requires determining whether the liability threshold for the tort at issue is high enough to tamp down the twin policy concerns and to safeguard prosecutorial independence.

[ 122 ] First, I will demonstrate that there are cogent policy reasons for not applying the immunity in a case where police officers allege they suffered serious harm as a result of deliberate and unlawful conduct by prosecutors in connection with the handling of serious criminal allegations of police misconduct.

[ 123 ] Second, I will explain that the liability threshold for misfeasance in public office, as defined in Odhavji , is high enough to mitigate the twin policy concerns identified above and to safeguard prosecutorial independence.

[ 124 ] Finally, I will apply this legal reasoning to the facts alleged in the statement of claim filed by the respondent police officers.

B. Policy Considerations

[ 125 ] In my opinion, there are four policy reasons that justify not applying prosecutorial immunity in this case: (1) the tactical nature of the decisions involved; (2) the significance of the interests at stake; (3) the lack of meaningful alternative remedies and accountability mechanisms; and (4) public confidence in the office of prosecutor and in the police.

(1) Core Prosecutorial Discretion

[ 126 ] First of all, the principle of prosecutorial independence does not apply to decisions pertaining to the handling of allegations of police brutality because they are, in general, tactical decisions falling outside the core of prosecutorial discretion.

[ 127 ] The principle of prosecutorial independence seeks to protect first and foremost the core of prosecutorial discretion, including decisions about the nature and extent of the prosecution (decisions to press charges, to enter a stay of proceedings, to enter into a plea bargain, to withdraw from proceedings and to take control of a private prosecution) ( Krieger , at para. 46). Decisions pertaining to the nature and extent of the prosecution may be subject to judicial supervision only in cases of flagrant impropriety — that is, when the decision is so clearly improper as to amount to an abuse of process ( R. v. Anderson , 2014 SCC 41 , [2014] 2 S.C.R. 167, at para. 51 ; Cawthorne , at para. 19 ).

[ 128 ] It is important to distinguish prosecutorial discretion protected by the Constitution from tactical decisions, which are not constitutionally protected and which are subject to the full oversight of the courts. Tactical decisions include decisions about how to conduct and present the case in court, such as the order in which to call witnesses, what witnesses to call (or not call), what evidence to present, how to present that evidence, and how to cross-examine witnesses. The handling of allegations of police misconduct is a tactical decision in this sense: does the prosecutor choose to call witnesses to rebut those allegations, should she make a fresh evidence motion before the Court of Appeal, etc.?

[ 129 ] Misconduct in the handling of allegations of police brutality does not touch upon the core of prosecutorial discretion. Decisions pertaining to how to deal with such allegations, such as deciding whether to call the police as witnesses, are tactical decisions falling outside the scope of core prosecutorial discretion. This is why the principle of prosecutorial independence is not sufficient in itself to prevent the imposition of liability in this case.

[ 130 ] In any event, any conduct amounting to bad faith or malice falls outside the core and does not engage prosecutorial independence. The essential element of misfeasance is that there was deliberate, unlawful conduct. No principle of prosecutorial independence protects a prosecutor who acts deliberately and unlawfully.

[ 131 ] Thus, the principle of prosecutorial independence is not sufficient in itself to prevent the imposition of liability in cases of deliberate and unlawful prosecutorial misconduct involving the handling of serious criminal allegations of police brutality. This confirms that there are cogent policy reasons for not applying the immunity in this case.

(2) Significance of the Interests at Stake

[ 132 ] Where important interests are at stake, this may justify not applying prosecutorial immunity. So far, this Court has justified displacing prosecutorial immunity in cases involving the interests of accused persons. This is because accused persons are uniquely vulnerable to the misuse of prosecutorial power.

[ 133 ] In this case, the police officers also had significant interests at stake in terms of their potential disciplinary liability, civil and criminal liability, and their reputations.

[ 134 ] Even though they were not formally charged, the three officers were, in essence, accused of having committed very serious criminal offences — torture and police brutality — and convicted of them without having had their day in court to dispute these findings. In fact, the Court of Appeal expressed its views in the strongest possible terms:

THE COURT: So, the state of the bidding is, we have a case where there's evidence led of what could only be described as thuggery, systemic thuggery by the police . . . .

. . . speaking for myself this would be, in terms of the appropriate remedy, it would be a very different case if people, if everybody had been called to account. I'm in favour of prosecuting all criminals, even the ones who are wearing uniforms. [Emphasis added.]

(A.R., vol. III, at pp. 428 and 430)

[ 135 ] The factual findings of assault made by Thorburn J. and subsequently upheld by the Court of Appeal exposed the officers to disciplinary proceedings as well as to civil and criminal liability. They also dramatically undermined the officers' credibility as witnesses. Their situation is therefore not unlike that of an accused person facing serious criminal charges.

[ 136 ] Thus, the police officers' right to liberty and security may not have been directly at stake during the first proceeding against Singh, but the subsequent repercussions from the findings of assault in terms of disciplinary proceedings, additional criminal charges, civil suits for damages, and future court proceedings where their credibility as witnesses would be at stake, put those rights in the balance.

[ 137 ] Moreover, findings of police brutality can have a profound impact on the dignity, professional life, reputation and mental health of the officers. In Hill v. Church of Scientology of Toronto , [1995] 2 S.C.R. 1130, Cory J. recognized that:

Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a reputation. A reputation tarnished by libel can seldom be restored. [para. 108]

( Hill , at para. 108 ; see also Botiuk v. Toronto Free Press Publications Ltd. , [1995] 3 S.C.R. 3, at para. 92 ; and Bent v. Platnick , 2020 SCC 23 , [2020] 2 S.C.R. 645, at para. 1 .)

[ 138 ] A reputation of trustworthiness and integrity is the cornerstone of many professions and callings, such as policing. Police officers must project public confidence and authority in order to be able to do their jobs. Their effectiveness depends on it.

[ 139 ] In brief, the significance of the interests at stake for the police officers weighs in favour of a conclusion that prosecutorial immunity does not apply in this case.

(3) Lack of Meaningful Alternative Remedies and Accountability Mechanisms

[ 140 ] The existence of alternative remedies or accountability mechanisms militates against displacing the immunity. If there are adequate alternatives available to the victims of prosecutorial misconduct, such as proceedings before the Law Society, internal disciplinary proceedings, or through a subsequent civil suit, then there is less of a need to pierce the immunity.

[ 141 ] In this case, the available alternatives are unable to make the victims whole again. Only exculpatory findings made by a civil court which had the benefit of all the evidence and did a thorough analysis can clear police officers' names once and for all.

[ 142 ] The Attorney General of Ontario identifies, among other things, the prospect of disciplinary proceedings against the prosecutors before the Law Society or administrative sanctions from their employer as alternative remedies. However, these alternative remedies are unable to make the victims whole. Disciplinary proceedings against the prosecutors before the Law Society or administrative sanctions from their employer carry little weight in comparison with prior judicial determinations of police brutality and torture made by a criminal court. A decision by the Law Society about the prosecutors' misconduct would not necessarily lead to a re-examination of the findings of assault made against the officers. It would not give the officers the opportunity to challenge these findings as false.

[ 143 ] And even if such sanctions had been imposed, they would not have made the police officers whole again. Findings of torture and police brutality published in the media and made by a criminal court are not easily erased by subsequent proceedings against the prosecutors.

[ 144 ] The TPSPS Unit's report provides a good example. Despite its unambiguous exculpatory findings, it went unnoticed because of the Appeal Crown's failure to inform the Court of Appeal of its true content. The officers are unable to challenge the findings of torture and brutality in a court of law because prosecutorial immunity deprives them of an autonomous access to the civil courts, except through a subsequent civil action brought against them by Singh or Maharaj.

[ 145 ] In the end, only exculpatory findings made by a civil court which had the benefit of all the evidence and did a thorough analysis can clear the officers' names once and for all. If the immunity is displaced and the officers are able to bring their own action against the prosecutors to take issue with the mishandling of the allegations of police brutality, the officers will be in a position to actively vindicate their reputations.

[ 146 ] The problem is, however, that this remedy is contingent on the accused person's decision to bring a civil suit against the police. If the accused person decides not to sue the police, the officers are unable to challenge the findings of police brutality in a court of law because prosecutorial immunity deprives them of an autonomous access to the civil courts.

[ 147 ] Exculpatory findings can help a great deal in making victims of false allegations whole again. Nonetheless, the fact that they are contingent on the accused persons' decision means that they may never materialize. The lack of alternative remedies for the officers therefore weighs in favour of a conclusion that prosecutorial immunity should not apply in this case.

(4) Public Confidence in the Office of Prosecutor and in the Police

[ 148 ] Not applying prosecutorial immunity in a case like this one reinforces public confidence in both the office of prosecutor and the police.

[ 149 ] In this appeal, the Crown effectively seeks absolute immunity against all claims brought by third parties. Absolute immunity, however, has been incompatible with the rule of law since Roncarelli and British Columbia (Attorney General) v. Malik , 2011 SCC 18 , [2011] 1 S.C.R. 657, at paras. 23-24 .

[ 150 ] My colleague Abella J. holds that applying the immunity in this case is necessary to preserve public confidence in the administration of justice. With respect, I disagree. Protecting prosecutors who deliberately mishandle serious criminal allegations of police misconduct does not reinforce public confidence in the administration of justice. It undermines it.

[ 151 ] Crown prosecutors are not just any kind of public officers. They are "in a position of knowledge in respect of the constitutional and legal impact of [their] conduct" ( Nelles , at p. 195). They are trusted to dispense justice fairly and impartially. As ministers of justice, prosecutors must act objectively, independently and fairly, discharging their public duties without favour to the police. The public is entitled to expect that they will do so.

[ 152 ] Where public officers hold such a high office, the public expects them to "be held to the highest standards of conduct" ( Odhavji , at para. 53 , per Iacobucci J.). When they deliberately fail to live up to those standards, there must be accountability. That is why, as Iacobucci J. noted in Odhavji "the public has an interest in ensuring that those who exercise authority on its behalf do so properly" (para. 53).

[ 153 ] In reality, only malicious prosecutors will fear liability if prosecutorial immunity is displaced to allow police officers to bring misfeasance claims. Prosecutors who act in good faith, or are even negligent, will not be held liable because they will not meet the high threshold for misfeasance in public office.

[ 154 ] One can understand the legitimacy of protecting prosecutors who act in good faith, and even those who are negligent, in the exercise of their prosecutorial duties. However, it is quite another matter to protect prosecutors who deliberately engaged in unlawful conduct. Prosecutors who act deliberately and unlawfully should not be insulated from accountability just because they are prosecutors.

[ 155 ] Prosecutors who act deliberately and unlawfully should not be allowed to hide behind the veil of absolute immunity. Doing so merely invites continued unlawful conduct and undermines accountability and the rule of law. It erodes public confidence in the administration of justice.

[ 156 ] Also, treating prosecutors so favourably by granting them an overly broad immunity undermines the rule of law and the principle that "every person, whatever his rank or condition is subject to the ordinary law of the realm" ( Reference re Public Service Employee Relations Act (Alta.) , [1987] 1 S.C.R. 313, at p. 369, per Dickson C.J., dissenting). To be sure, the scope of prosecutorial immunity is broad. But it should not become so broad as to protect even those prosecutors who deliberately abuse their office.

[ 157 ] In addition to tarnishing the image of prosecutors, the immunity sought by the Crown undermines public confidence in the police. The officers' damaged reputation hampers their ability to effectively discharge their duties. And it calls into question the integrity of the criminal justice system as a whole. A finding that police officers are guilty of brutality and torture — in circumstances where the officers had no right to contest those findings — may shake public confidence in the police more than a finding that holds prosecutors accountable for their unlawful conduct.

[ 158 ] A damaged reputation not only impedes the police's capacity to investigate and protect, but also hampers the prosecution of crime and potentially allows guilty persons to avoid conviction. It makes the officers vulnerable to the defence's attacks when they testify, weakening the Crown's case as a result. The immunity sought by the Crown would thus defeat its own purpose and adversely affect prosecutorial effectiveness.

C. Liability Threshold for Misfeasance in Public Office

[ 159 ] There being strong policy reasons not to apply prosecutorial immunity in this case, the next step is to determine whether the liability threshold for misfeasance in public office is high enough to adequately protect against a chilling effect on the exercise of prosecutorial discretion and the diversion of prosecutors from their duties.

[ 160 ] The elements of the tort of misfeasance in public office are:

(a) the defendant is a public officer;

(b) the defendant's conduct was deliberate and unlawful;

(c) the defendant had knowledge that his or her conduct was unlawful and likely to harm the plaintiff; and

(d) the defendant's conduct caused material damage to the plaintiff and such damage is compensable at law.

(See Odhavji , at paras. 23 and 32.)

[ 161 ] In crafting these elements, courts have already considered many of the issues that prosecutorial immunity is designed to address. In Odhavji , Iacobucci J. reasoned that the elements of the tort are "sufficiently precise" to "prevent the tort from becoming a vehicle for converting every failure of a public officer to carry out his or her public duties into tortious liability" (para. 38). Indeed, they provide a high threshold that prevents negligent or careless conduct from giving rise to liability.

[ 162 ] In Odhavji , Iacobucci J. stated that the elements of misfeasance in public office create a high threshold that serves to "protect the ability of public officers to fulfil their public duty" (para. 55). The elements of the tort require a plaintiff to show that the public officer deliberately engaged in unlawful conduct and that the public officer had knowledge that it was unlawful. They thus insulate from liability prosecutors acting in good faith, even if they act negligently.

[ 163 ] This high threshold must be considered in the context of the class of potential claimants and the prosecutorial activity at issue. The class of potential claimants in this case — police officers facing allegations of serious misconduct in a criminal case — is very narrow. And as I explained above, the prosecutors' conduct at issue here does not fall within the core of prosecutorial discretion, since it consists of tactical decisions about how to deal with allegations of police misconduct in the context of criminal proceedings. This means that the chilling effect concerns with respect to the exercise of core prosecutorial discretion are diminished.

[ 164 ] The nature of the prosecutorial discretion at issue is also important. As in Henry , the prosecutors' conduct at issue here consists of decisions about how to conduct the prosecution, rather than core decisions of a prosecutorial nature. This further diminishes the risk that allowing misfeasance claims in this context will create a chilling effect on the exercise of core prosecutorial discretion.

[ 165 ] When considered in this specific context, the high threshold provided by the elements of misfeasance in public office adequately protects against a chilling effect on the exercise of prosecutorial discretion, interference with prosecutorial independence, and the diversion of prosecutors from their duties. Only malicious prosecutors will be deterred by the prospect of liability, and this, I submit, is the right outcome in the interest of the rule of law and public confidence in the administration of justice.

[ 166 ] Finally, although permitting police officers to bring misfeasance claims may result in contradictory decisions, this is not a sufficient reason to deny them access to civil courts. Relitigation is not necessarily an evil. It may be necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole when the first proceeding is tainted by fraud or dishonesty, when fresh, new evidence, previously unavailable, conclusively impeaches the original results, or when fairness dictates that the original result should not be binding in the new context ( Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 52 , per Arbour J.). Indeed, the situation of the respondent police officers falls within at least the first and third categories: not only are they alleging that the earlier proceedings were tainted by dishonesty, but the TPSPS Unit's report — evidence that was not before the court — also conclusively impeaches the original findings of assault.

D. Application

[ 167 ] In my view, the respondent police officers have adequately pleaded the four essential elements of misfeasance in public office.

[ 168 ] In their statement of claim, the police officers plead that the Trial Crown, the Senior Crown and the Appeal Crown were acting as public officers in the performance of their duties.

[ 169 ] First, there is no doubt that prosecutors are public officers.

[ 170 ] Second, the police officers plead that the Crown Attorneys' conduct was deliberate and unlawful. With respect to the Trial Crown, the officers plead that she deliberately failed to investigate the assault allegations and to call the police as witnesses; that she deliberately conceded the assaults knowing the allegations were untrue; and that she breached her public duty to act without favour or affection to any party, pursuant to s. 6(5) of the Crown Attorneys Act . With respect to the Appeal Crown, the officers plead that she deliberately concealed the TPSPS Unit's exculpatory report from the Court of Appeal, thereby failing to fulfil her duty to act with candour.

[ 171 ] Third, the police officers plead that the Crown Attorneys had knowledge that their conduct was unlawful and likely to harm them. The statement of claim specifically reads:

Crown attorneys involved in this case deliberately engaged in conduct that they knew to be inconsistent with the obligations of the Crown attorney and they did so in bad faith , with the knowledge that this misconduct was likely to injure the officers .

All of the above conduct, involves a deliberate disregard of the official duty of the Crown Attorney in the Province of Ontario, with the knowledge that this misconduct would most likely injure the police officers . [Emphasis added.]

(A.R., vol. II, at p. 132)

[ 172 ] Fourth, the police officers plead that the Crown Attorneys' conduct caused them material damage compensable at law, including "irreparable harm, specifically damage to their reputations and credibility among members of the judiciary, the Attorney General's office, the criminal defence bar and the public at large" (A.R., vol. II, at p. 125). Such damage is compensable at law.

VI. Conclusion

[ 173 ] For the foregoing reasons, I would dismiss the appeal.

Appeal allowed with costs, Côté J. dissenting.

Solicitor for the appellant: Attorney General of Ontario, Toronto.

Solicitors for the respondents: Brauti Thorning, Toronto.

Solicitor for the intervener the Attorney General of New Brunswick: Attorney General of New Brunswick, Fredericton.

Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver.

Solicitor for the intervener the Attorney General of Saskatchewan: Attorney General of Saskatchewan, Regina.

Solicitor for the intervener the Attorney General of Alberta: Justice and Solicitor General, Appeals, Education & Prosecution Policy Branch, Edmonton.

Solicitors for the intervener Toronto Police Chief James Ramer: Lerners, Toronto.

Solicitor for the intervener the Canadian Association of Chiefs of Police: Royal Newfoundland Constabulary, St. John's.

Solicitors for the interveners the Canadian Association of Crown Counsel and the Ontario Crown Attorneys' Association: Cavalluzzo, Toronto