COURT FILE NO.: 11-CV-418082
DATE: 2014/12/02
SUPERIOR COURT OF JUSTICE – ONTARIO
Short Title: Robert James Baltovich et al. v. Attorney General for Ontario et al.
Heard by: Master Graham Event date: May 7, 2014
Counsel: D. Robins for the plaintiffs (moving parties)
S. Blake for the defendant Attorney General
REASONS FOR DECISION
(Plaintiff’s motion to amend statement of claim)
[1] On March 31, 1992, the plaintiff Robert Baltovich was convicted of the second degree murder of his girlfriend. On December 2, 2004, after spending more than eight years in prison and then being released on bail, his appeal was allowed, his conviction was quashed and a new trial was ordered. In 2008, he was acquitted at his second trial when the Crown called no evidence. Based on his wrongful conviction, he now brings this action against various police officers involved in the investigation and prosecution of the murder charge and against the Attorney General on the basis of its liability for the conduct of the Crown attorneys responsible for the prosecution of the charge under section 8 of the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17.
[2] The plaintiff claims that his arrest, charge, prosecution and wrongful conviction were the result of reckless, bad faith, negligent and intentional acts and omissions of the Crown attorneys as agents of the Attorney General, of the police and of his former trial defence counsel. He alleges that the police officers were negligent in failing to ensure that all evidence, including evidence that supported his innocence, was disclosed to him and his counsel. He alleges that the Crown attorneys failed to properly perform their “non-discretionary, routine, administrative function to make full, frank and complete disclosure” of relevant evidence to his counsel.
[3] The plaintiff now seeks to amend his statement of claim to further particularize claims for negligence and for aggravated and punitive damages as against the Attorney General, in accordance with the draft Amended Statement of Claim in the motion record. The Attorney General opposes the motion with respect to the proposed amended paragraphs reviewed below.
[4] The plaintiff submits that the police and prosecution theory in the criminal charge against him was that he murdered the victim on June 19, 1990, hid her body in a park, and then three days later on June 22, 1990, put her body in her own car and drove it to another unknown location. The proposed amendments are precipitated by the plaintiff’s review, in March 2013, of a large quantity of productions from the Attorney General, including a handwritten note dated November 22, 1990 written by the defendant Police Detective Raybould titled “Discussions with CFS [Centre for Forensic Sciences] Personnel in Regards to Blood in Toyota”.
[5] According to plaintiff’s counsel, on September 6, 2013, counsel for the police defendants produced an unredacted portion of the notes of Detective Raybould for November 22, 1990 which included his note of his consultation that day with Dr. Hillsdon-Smith and Ray Higaki of the Centre for Forensic Sciences. These notes were different from the version produced by the Attorney General in the action (which were identical to the copy provided to Baltovich’s counsel in the appeal), in that they disclosed for the first time that on November 22, 1990, Detective Raybould consulted with Dr. Hillsdon-Smith and Ray Higaki about the blood, lack of odour and absence of decomposition evidence in the victim’s car. Mr. Lockyer, who was Baltovich’s counsel for his appeal and his second trial, has deposed that this note was not disclosed by the Crown in either of Baltovich’s criminal trials or the appeal. The law clerk from the Attorney General who swore a responding affidavit on this motion conceded that she has no personal knowledge of what was disclosed or the contents of the files that were made available for Baltovich’s counsel for his first trial.
[6] The plaintiff submits that the significance of the copy of Detective Raybould’s note of November 22, 1990 produced on September 6, 2013 is that it undermines the police and prosecution theory that Baltovich transported the victim’s body in her own car three days after the murder.
[7] In addition, in July 2004, in respect of the appeal, Mr. Lockyer wrote to John Corelli, who was Crown counsel on Baltovich’s appeal, to request that he check whether a pathologist or a biologist was consulted regarding the blood found in the victim’s car and the theory that Baltovich had moved the victim’s body in her own car two to three days following her murder. In March 2013, Lockyer also discovered a copy of a note dated July 14, 2004 written by Corelli indicating that he discussed this issue with Detective Raybould who informed him that he had “discussed with experts about what they could expect to find re: decomposition”. However, on the same date, Corelli wrote to Lockyer and stated that he spoke to Raybould and “he also does not recall consulting a pathologist or biologist before the trial to discuss these issues”; further, when Corelli looked through the trial Crowns’ files he did not see any indication of a consultation with a pathologist or biologist and he did not intend to re-examine those files.
[8] The challenged amendments name Crown attorney John Corelli as Crown counsel on the appeal (paragraph 2 © and paragraph 26C). The proposed amendments in paragraphs 159A – 159H and 159J relate to communications between Baltovich’s appellate counsel and Corelli in 2004 in relation to counsel’s review of evidence from the trial Crowns’ files. The allegations refer to a written request by counsel for further information regarding a note in the files that precipitated a conversation on July 14, 2004 between Corelli and one of the investigating officers about whether the officer had consulted a pathologist or a biologist during his investigation of the murder. The plaintiff alleges in paragraph 159F that as a result of this conversation, Corelli knew that the officer had consulted with Ray Higaki, a forensic biologist at the CFS, about evidence found and not found in the victim’s vehicle and evidence regarding decomposition that would be relevant to the case, but did not disclose the information obtained during the conversation.
[9] Amended paragraphs 159G and 159H refer to correspondence between counsel and Corelli on the issue of whether there was any consultation of a pathologist or biologist by the investigating officers. Amended paragraph 159I refers to further correspondence of July 14, 2004 from Corelli to counsel in which Corelli states that he had looked through the trial Crowns’ files and did not locate any indication of a consultation with a pathologist or biologist. Amended paragraph 159J pleads that as a result of Corelli’s failure to disclose that one of the officers had consulted with CFS experts concerning evidence of decomposition or lack thereof in the victim’s car, appellate counsel was not able to rely on the non-disclosure of the officer’s CFS consultation for the purpose of the appeal.
[10] The proposed amendment in paragraph 173B pleads that during the years leading up to the appeal, Corelli “owed Baltovich a duty of care and breached the reasonable standard of care expected in the circumstances”, and sets out particulars of what he failed to disclose, which did not become known to Baltovich until March, 2013.
[11] The proposed amendments to paragraphs 174 and 193 add Corelli to the names of Crown attorneys for whose acts or omissions the Attorney General is responsible. Paragraph 193 alleges that Corelli, the two other Crown attorneys and two police officers engaged in malicious conduct that constituted a misuse and abuse of their offices such as to warrant aggravated and punitive damages.
[12] With the exception of paragraph 173A, the proposed amended paragraphs relate to the alleged breach by Corelli of his duty of care in failing to search for and disclose relevant evidence to Baltovich’s appellate counsel.
[13] The proposed amended paragraph 173A pleads as against the two originally named Crown attorneys, McMahon and Amenta, that in the event that the investigating officer had disclosed to them particulars of a conversation that he had with the two CFS scientists, they “breached the reasonable standard of care by failing to perform their non-discretionary, routine, administrative function to make full, frank and complete disclosure” of relevant evidence to Baltovich’s counsel.
[14] Accordingly, all of the impugned paragraphs on this amendment motion relate to allegations of negligence based on non-disclosure on the part of three Crown attorneys.
[15] In moving to amend the statement of claim, the plaintiff relies on rule 26.01:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[16] The test to be applied on a motion under rule 26.01 as stated in Plante v. Industrial Alliance Life Insurance Company, 2003 64295 (ON SC), [2003] O.J. No. 3034 at paragraph 21 is as follows:
a) The amendments must not result in irremediable prejudice. The onus of proving prejudice is on the party alleging it unless a limitation period has expired. In the latter case the onus shifts and the party seeking the amendment must lead evidence to explain the delay and to displace the presumption of prejudice. Mota et. al. v. The Regional Municipality of Hamilton Wentworth Police Services Board (2003), 2003 47526 (ON CA), 63 O.R. (3d) 737 (C.A.) at p. 748.
b) The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success. For this purpose amendments are to be read generously with allowance for deficiencies in drafting: Atlantic Steel Industries v. CIGNA Insurance (1997), 1997 12125 (ON SC), 33 O.R. (3d) 12 (Gen. Div.). [emphasis added]
c) The proposed amendments must otherwise comply with the rules of pleading. For example the proposed amendments must contain a "concise statement of material facts" relied on " but not the evidence by which those facts are to be proved" (rule 25.06 (1)), the proposed amendments are not "scandalous, frivolous or vexatious" (rule 25.11 (b)), the proposed amendments are not "an abuse of the process of the court" (rule 25.11 (c)), the proposed amendments contain sufficient particulars - for example of fraud and misrepresentation (rule 25.06 (8)).
[17] The plaintiff seeks the amendments on the basis of the mandatory language in rule 26.01 that the court shall grant leave to amend a pleading unless non-compensable prejudice would result. The plaintiff also submits as follows:
The defendants cannot say that they are in any way prejudiced by amendments based on evidence that was in their possession and which they failed to disclose.
The proposed added claims do not constitute a new cause of action but simply serve to particularize existing claims of negligence, bad faith and misconduct.
There is no limitation issue because the facts that support the amendments were discovered in March, 2013 at the earliest.
[18] The defendant Attorney General submits that the allegations of improper description in the Attorney General’s list of documents are scandalous and that all new allegations against the trial Crowns and the appeal Crown are scandalous, speculative and incapable of proof. However, as stated at paragraph 21b) of Plante, supra, amendments are to be granted only if the claim is “impossible of success”. The facts alleged in the amendments remain to be proven or refuted and the issue of whether the required facts can be proven cannot be determined at the pleadings stage.
[19] The Attorney General also submits that as against the Crown attorney Corelli, whom the plaintiff seeks to name for the first time in the body of the amended statement of claim, the plaintiff fails to plead material facts to establish causation and damages. Specifically, the Attorney General submits that the proposed amended pleading contains no allegation that, but for Corelli’s conduct, the plaintiff would have achieved a more favourable result in his criminal proceedings. Corelli was only involved at the appeal stage of the charges, the plaintiff’s appeal was allowed and he was acquitted at his second trial after the Crown determined that it would call no evidence. The Attorney General’s submission is essentially that the plaintiff has failed to plead any causal connection between Corelli’s alleged non-disclosure and any outcome unfavourable to the plaintiff.
[20] In proposed amended paragraph 159J(e), the plaintiff pleads that as a result of Corelli’s failure to disclose Raybould’s consultation with CFS experts, his appeal counsel was unable to raise the trial Crown’s non-disclosure at the plaintiff’s second trial and argue that the charges should be stayed for an abuse of process.
[21] The communications between appeal Crown Corelli and the plaintiff’s appeal counsel took place in July, 2004, before the Court of Appeal’s granting of the appeal on December 2, 2004. The plaintiff was subsequently acquitted on April 22, 2008. The plaintiff could argue at trial, based on the pleading in paragraph 159J(e), and it is not impossible that the argument could succeed, that if the communications in question had been disclosed by Corelli, he could have used the information that the appeal Crown failed to disclose to seek a stay of the proceedings and had the charges disposed of prior to April 22, 2008.
[22] In addition, the pleading in paragraph 185 of the existing statement of claim is that but for the defendants’ acts and omissions as previously described, the plaintiff would not have been charged and convicted or alternatively, his conviction would have been quashed sooner. It therefore has been pleaded, and could possibly be established at the trial of this civil action, that as a result of Corelli’s non-disclosure, the plaintiff was deprived of the opportunity to achieve a more favourable disposition of his appeal (i.e. an acquittal) or of his second trial at an earlier date. I conclude that the proposed amendments do support a claim in negligence.
[23] The defendant Attorney General’s third submission is that the proposed amendments constitute claims in respect of the conduct of Crown attorneys that are not legally tenable and therefore cannot result in findings of liability against them. Specifically, the plaintiff’s proposed amendments are all claims framed in negligence, from which Crown attorneys as agents of the Attorney General are immune. If this position is correct in law, then the claims in the amendments would be impossible of success and the amendments must be refused.
[24] The Attorney General relies on a series of cases beginning with Nelles v. Ontario, 1989 77 (SCC), [1989] S.C.J. No. 86 in which the issue was whether the Crown, the Attorney General and Crown attorneys have the benefit of absolute immunity from a suit for malicious prosecution. In ultimately concluding that “the Attorney General and Crown Attorneys do not enjoy an absolute immunity in respect of suits for malicious prosecution”, Lamer J. stated as follows:
55 . . . For the reasons I have stated above I am of the view that absolute immunity for the Attorney General and his agents, the Crown Attorneys, is not justified in the interests of public policy. We must be mindful that an absolute immunity has the effect of negating a private right of action and in some cases may bar a remedy under the Charter. As such, the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted. Further, it is important to note that what we are dealing with here is an immunity from suit for malicious prosecution; we are not dealing with errors in judgment or discretion or even professional negligence. By contrast the tort of malicious prosecution requires proof of an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve and as such incorporates an abuse of the office of the Attorney General and his agents the Crown Attorneys. [emphasis added]
[25] The Ontario Court of Appeal considered Nelles in Thompson v. Ontario, 1998 7180 (ON CA), [1998] O.J. No. 3917, a case in which the plaintiff sued the provincial Crown, the Attorney General and three Crown attorneys in an action that included a claim for damages for the Crown’s failure to disclose material evidence. Specifically, “part of the appellant’s claim related to non-disclosure of material in the Crown’s hands that the appellant contended would have cast doubt on his guilt” (paragraph 15). On a summary judgment motion, the motions judge concluded that the plaintiff’s/appellant’s claims, other than his claim for malicious prosecution, disclosed no reasonable cause of action. In upholding the motions judge’s decision, the Court stated:
56 With respect to the claims against the three Crown attorneys for negligent prosecution, negligent investigation and false imprisonment, I think the motions judge was correct in concluding that those claims disclose no reasonable cause of action. Nelles qualified the Crown's common law immunity from suit only to the extent of permitting actions for malicious prosecution, but not for negligence. Thus, the appellant's claims against the Crown attorneys generally based on negligence in the performance of their duties disclose no reasonable cause of action. See Munro et al. v. Her Majesty The Queen in the Right of Canada (1993), 1993 8453 (ON SC), 16 O.R. (3d) 564 (Div. Ct.). [emphasis added]
[26] In Miguna v. Ontario(Attorney General), 2005 46385 (ON CA), [2005] O.J. No. 5346 (C.A.), the Court of Appeal again reviewed Nelles, and concluded:
11 Thus there exists a narrow exception to the Crown's immunity from suit for prosecutorial misconduct in cases where "the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim". Whether that narrow exception is confined to the tort known as "malicious prosecution" is not clear from the authorities. But one thing is clear: however the claim is framed, the Crown's conduct must rise to the level of malice. Malice is defined for these purposes as "a deliberate and improper use of the office of the Attorney-General or Crown Attorney, a use inconsistent with the status of 'minister of justice'" and one in which the defendant "perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice": Nelles, at 193-194. No action lies against a Crown Attorney for prosecutorial misconduct that sounds in negligence. [emphasis added]
[27] In considering what action may lie against Crown attorneys arising out of the execution of their prosecutorial duties, Nelles allows for the possibility of actions for malicious prosecution only and both Thompson and Miguna make it clear that permissible claims do not include actions in negligence.
[28] In Miazga v. Kvello Estate, 2009 SCC 51, [2009] S.C.J. No. 51, the Supreme Court again considered the “improper purpose” referred to in Nelles and commented as follows, at paragraph 81:
81 As discussed earlier, a demonstrable "improper purpose" is the key to maintaining the balance struck in Nelles between the need to ensure that the Attorney General and Crown prosecutors will not be hindered in the proper execution of their important public duties and the need to provide a remedy to individuals who have been wrongly and maliciously prosecuted. By requiring proof of an improper purpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutor proceeds, absent reasonable and probable grounds, by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence. [emphasis added]
[29] Henry v. British Columbia (Attorney General), 2014 BCCA 15, [2014] B.C.J. No. 71, is a recent case in which the plaintiff’s action against the Crown in relation to criminal charges was based in part on alleged non-disclosure by the Crown attorneys. Hall J.A., writing for a unanimous court, reviewed the principles set forth in Nelles and Miazga and concluded that it was bound by the pronouncements in those decisions, stating at paragraph 29:
29 I consider those pronouncements currently foreclose negligence as a foundation for prosecutorial liability.
[30] The plaintiff submits that, notwithstanding the wealth of appellate authority supporting the Attorney General’s contention that actions in negligence are precluded as against Crown attorneys, there is some uncertainty in the law on the issue. Plaintiff’s counsel relies on Driskell v. Dangerfield et al., 2007 MBQB 142 in which the plaintiff attempted to advance claims in respect of the conduct of various Crown attorneys including claims in negligence on the part of the Crown in failing to disclose relevant information. In ruling on the Crown’s summary judgment motion to strike those claims, Greenberg J. concluded that “the defendants have neither statutory nor common law immunity for the conduct on which this claim is based”.
[31] Greenberg J. in Driskell relies on Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 in which the Supreme Court considered the case of a Crown attorney who was subject to discipline proceedings as a result of his failure to provide timely and adequate disclosure to an accused charged with murder. The Crown attorney had sought an order that the Law Society had no jurisdiction to review the exercise of his prosecutorial discretion. The judge at first instance dismissed the application and that decision was overturned by the Alberta Court of Appeal. The issues before the Supreme Court were whether the rule in the province’s Code of Professional Conduct requiring a prosecutor to make timely disclosure to an accused was constitutionally valid and whether the Law Society of Alberta had jurisdiction to review a Crown prosecutor’s exercise of prosecutorial discretion.
[32] The Supreme Court held that both Alberta’s Legal Profession Act, S.A. 1990, c. L-9.1 and the rule in the Code of Professional Conduct regarding prosecutorial disclosure were constitutionally valid, and that “the Law Society has jurisdiction to review the conduct of a prosecutor to determine whether the prosecutor acted dishonestly or in bad faith in failing to disclose relevant information to an accused in a timely matter, notwithstanding that his employer, the Attorney General, has reviewed it from the perspective of an employer”. However, the Court also stated that “the Law Society’s jurisdiction to review the [Crown attorney’s] failure to disclose relevant evidence to the defendant [sic] is limited to examining whether it was an ethical violation.” (Krieger, p. 401)
[33] The scope of the Supreme Court’s ruling in Krieger is limited to the constitutionality of Alberta’s Legal Profession Act and one of the rules in the province’s Code of Professional Conduct and to its finding that the province’s Law Society could bring disciplinary proceedings against a Crown attorney for failing to comply with an ethical obligation of full disclosure. However, these decisions do not amount to a ruling on the issue of whether a plaintiff’s claim in negligence against a Crown attorney is tenable at law.
[34] The plaintiff also relies on Ferron v. Goodier, [2010] O.J. No. 329, an action against a Crown attorney based on an allegation that she destroyed or failed to disclose a police surveillance tape. The plaintiff in Ferron pleaded that the Crown attorney’s actions constituted both malicious prosecution and negligence and the Crown attorney moved to strike the pleadings. In ruling that the Crown attorney was not immune from an action in negligence, the court relied on Greenberg J.’s interpretation of Krieger in Driskell.
[35] In summary, in Nelles (1989), the Supreme Court held that Crown prosecutors do not enjoy absolute immunity from civil actions and ruled that they could be subject to claims for malicious prosecution. However, the court also made it clear that actions in malicious prosecution are the only exception to Crown attorneys’ general immunity. The Ontario Court of Appeal in Thompson (1998), a case in which the plaintiff’s claim was based on negligent non-disclosure by Crown attorneys, specifically stated that the appellant's claims against the Crown attorneys based on negligence in the performance of their duties disclosed no reasonable cause of action. Similarly, in Miguna (2005), the Court of Appeal described the right to sue a Crown attorney in malicious prosecution as a “narrow exception” to their general immunity and reiterated that “no action lies against a Crown Attorney for prosecutorial misconduct that sounds in negligence”.
[36] The Supreme Court’s decision in Krieger (2002), on which Driskell (2007) and Ferron (2010) are based, does not overturn Nelles, Thompson and Miguna. Miazga, supra was decided by the Supreme Court of Canada in 2009, after both Krieger and Driskell, and was not considered by the court in Ferron. Charron J., writing for a unanimous court in Miazga, cites Krieger extensively but never suggests that that decision in any way creates a tenable action against a Crown prosecutor other than for malicious prosecution. Krieger did not expand the scope of tenable civil actions against Crown attorneys to include negligence. I conclude that Driskell and Ferron are based on a misreading of Krieger.
[37] Miazga reiterates the principle established in Nelles that only “individuals who have been wrongly and maliciously prosecuted” can bring a tenable civil action against a Crown attorney, i.e. an action for malicious prosecution. I accept that there is no tenable action against a Crown attorney in negligence.
[38] The proposed amendments in paragraphs 159A-159H and 159J all relate to the alleged non-disclosure by John Corelli, the appeal Crown. Paragraphs 160-167, which are part of the existing pleading, all relate to the alleged malicious prosecution by the trial Crowns but there is no proposed claim against Corelli based on any malicious prosecution. Paragraphs 170-173 of the existing statement of claim relate to the alleged negligence of the trial Crowns and of Corelli and the proposed amendments in paragraph 173B are the allegations of Corelli’s duty of care and breach of the standard of care. Accordingly, with the exception of the addition of Corelli to paragraph 193, in which punitive damages are claimed, all of the proposed allegations with respect to Corelli are in respect of claims based in negligence.
[39] The proposed amendment in paragraph 173A against the trial Crowns also alleges a breach by those individuals of the reasonable standard of care and is therefore also a claim in negligence.
[40] Based on the case law reviewed above, all of the proposed amendments at paragraphs 159A-159H, 159J, 173A and 173B, which are pleadings of negligence against Crown attorneys, are not legally tenable and are therefore refused.
[41] Paragraph 159I, which is not challenged, refers to Corelli, so the proposed amendments at paragraphs 2© and 26C are permitted to give context to paragraph 159I. The proposed amendment to paragraph 193 is to add Corelli to the list of Crown attorneys with respect to whose conduct punitive damages are claimed; because the only claims against Corelli were to be the negligence claims that have been found to be untenable, this amendment is also refused.
[42] For the sake of completeness, I will consider the Attorney General’s fourth and final argument, which is that the proposed amendments are out of time because the plaintiff, through the exercise of due diligence, could have discovered the facts supporting the amendments at the time of both the 1992 trial and the 2004 appeal. With respect to this argument, the plaintiff has pleaded that the alleged failure of Corelli to disclose the information enumerated in paragraph 173 B was not known to him until March, 2013. I am satisfied that there is at least a triable issue of discoverability with respect to the allegations in the amendments such that the limitation period is not a bar to the proposed amendments. (See Wong v. Adler, 2004 8228 (ON SC), [2004] O.J. 1575)
[43] The plaintiff is hereby granted leave to amend the statement of claim in accordance with the form of the draft at tab 1A of the motion record, with the exception of those paragraphs for which leave has been denied, as set out in these Reasons.
[44] Counsel did provide costs outlines at the conclusion of the hearing but did not make submissions on costs. If the parties cannot agree on the disposition of the costs of the motion, they may make submissions in writing, the defendant Attorney General within 20 days and the plaintiff within 20 days thereafter. Costs submissions shall not exceed three pages from each party.
MASTER GRAHAM
DATE: December 2, 2014
APPENDIX: Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 8
(1) No action or other proceeding for damages shall be commenced by a person who is or was the subject of a prosecution, in respect of any act done or omitted to be done in the performance or purported performance of a duty or authority in relation to the prosecution, against any of the following:
A Crown Attorney, Deputy Crown Attorney or assistant Crown Attorney appointed under the Crown Attorneys Act.
A person authorized under section 6 of the Crown Attorneys Act to be a provincial prosecutor.
Any other employee appointed for the purposes of section 4.
A person who was, but no longer is, a person described in paragraph 1, 2 or 3. 2009, c. 33, Sched. 2, s. 46.
Proceedings against Attorney General
(2) An action or other proceeding described in subsection (1) may be commenced against the Attorney General by a person who is or was the subject of a prosecution and, for the purpose, the Attorney General stands in the place of the person against whom the action or other proceeding would have been brought but for that subsection, and may be found liable in his or her stead. 2009, c. 33, Sched. 2, s. 46.
Same
(3) An action or other proceeding may only be brought against the Attorney General under subsection (2) if, but for subsection (1), the action or proceeding could have been brought against a person referred to in that subsection. 2009, c. 33, Sched. 2, s. 46.
Liability without prejudice
(4) A finding of liability against the Attorney General under subsection (2) is without prejudice to the right of the Attorney General or the Crown to indemnity or other relief from the person in whose place the Attorney General stood in the action or other proceeding. 2009, c. 33, Sched. 2, s. 46.
Notice of claim; discovery; service; trial without jury; payment by Attorney General
(5) Subsections 7 (1) and (2) and sections 8, 10, 11 and 22 of the Proceedings Against the Crown Act apply, with necessary modifications, to an action or other proceeding under subsection (2) and, for the purpose, a reference to the Crown shall be read as a reference to the Attorney General. 2009, c. 33, Sched. 2, s. 46.