Smith v. Her Majesty the Queen in right of Ontario et al., 2016 ONSC 7222

CITATION: Smith v. Her Majesty the Queen in right of Ontario et al., 2016 ONSC 7222

COURT FILE NO.: CV-15-00540336-0000

DATE: 20161129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALAN DALE SMITH

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE ATTORNEY GENERAL OF ONTARIO, THE DURHAM REGIONAL POLICE SERVICES BOARD, THE YORK REGIONAL POLICE SERVCES BOARD, THE ONTARIO PROVINCIAL POLICE, LEON LYNCH, YRP#1, OPP#1, OPP#2, JOHN JOHNSON ALLAN, CINDI BRADLEY, DANIEL ANTHONY DENYER, JIM BURROWS, JEFF KENNEDY, DAVID KIMMERLY, DIANNE JENNINGS, MICHAEL HILL and JOHN SCOTT

Defendants

Richard Posner, Brian Eberdt and Enoch Guimond, for the Plaintiff

William Manuel and Sunil Mathai, for the Defendants the Attorney General of Ontario, Michael Hill and John Scott

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

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

No one appearing for the remaining defendants

HEARD: June 27 and August 23, 2016, followed by written submissions

REASONS FOR DECISION

justice w. matheson

[1] This action arises from a police investigation that is sometimes called a “Mr. Big” operation, giving rise to alleged confessions that formed the basis for a charge of first degree murder against the plaintiff. The charge was ultimately dismissed. The plaintiff sues not only the police but also two Crown Attorneys involved in the investigation – John Scott and Michael Hill. The plaintiff alleges that they are liable based upon these torts: negligent investigation, unlawful arrest and imprisonment, and intentional infliction of mental suffering. In turn, the defendant Attorney General of Ontario is sued as liable for the acts and omissions of Scott and Hill. The plaintiff does not sue the Crown Attorneys who took the matter to trial, and does not claim malicious prosecution.

[2] The “Mr. Big” investigation at issue took place before the Supreme Court of Canada decision in R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, in which the Court ruled that evidence obtained in this way is presumptively inadmissible, placing the onus on the Crown to demonstrate that it ought to be admitted: at para. 10.

[3] The Attorney General of Ontario and Crown Attorneys Scott and Hill move to strike out the plaintiff’s claim, as against them, as disclosing no cause of action and as frivolous, vexatious and an abuse of process. The moving parties primarily rely on common law immunity and, with respect to Scott and Hill, statutory immunity under s. 8 of the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17 (“MAGA”).

[4] The plaintiff resists this motion, supported by the Durham police defendants (the Durham Regional Police Services Board, Leon Lynch, John Johnson Allan, Cindi Bradley, Daniel Anthony Denyer, Jim Burrows, Jeff Kennedy, David Kimmerly and Dianne Jennings, also collectively called the DRPS) and the York police defendants (The York Regional Police Services Board and YRP#1).

[5] There is a second branch of this motion. The moving parties also seek to strike out a crossclaim as against them brought by the police. The Durham police defendants have delivered a crossclaim that seeks contribution and indemnity if their defence of the plaintiff’s claim is unsuccessful. As regards the moving parties, the crossclaim alleges that the Durham police defendants received and relied upon legal advice from the Crown Attorney defendants regarding the investigation, and they crossclaim based upon negligent legal advice and breach of retainer.

[6] Although the moving parties seek to strike out the crossclaim as against them, they do not seek to strike out any aspect of the DRPS statement of defence. They do not move to strike out the allegations that legal advice was received and relied upon in good faith by the Durham police defendants. They take no objection to those defendants waiving their privilege and relying on the legal advice they received in their defence of the plaintiff’s claim.

[7] The claims against the Ontario Provincial Police and a third Crown Attorney have been discontinued with prejudice. The remaining defendants take no position on this motion.

[8] The statement of claim also alleges certain breaches of the Canadian Charter of Rights and Freedoms. The plaintiff’s counsel clarified in oral argument that the claim based on the alleged Charter violations is not made against the individual Crown Attorneys. The Attorney General of Ontario is sued only as potentially liable for the claims against the Crown Attorneys. The Charter claims are therefore not engaged on this motion.

[9] The causes of action that are the focus of this motion are admitted to be novel claims as against the moving parties. The plaintiff (supported by the Durham and York police defendants) accepts that the tort of negligent investigation has not been previously recognized as a claim that can be made against a Crown Attorney, as is the case for the other causes of action asserted. The Durham police defendants (supported by the York police defendants) also acknowledge that the causes of action asserted in their crossclaim have not previously been recognized as claims that can be made by the police against Crown Attorneys.

[10] The claims asserted in the statement of claim and crossclaim may be novel, but that is where the similarity between the two branches of this motion stops. There is a key difference that is central to the determination of the motion. The plaintiff’s claims arise within the context of the repeatedly affirmed law of Crown Attorney immunity from civil claims made by members of the public. In contrast, the proposed crossclaim by the police based on negligent legal advice from Crown Attorneys has not been the subject of extensive prior judicial consideration.

[11] For the reasons set out below, I conclude that the established law of Crown Attorney immunity forecloses the plaintiff’s claims against the Crown Attorneys and in turn against the Attorney General. It is plain and obvious that those claims have no reasonable chance of success. However, the crossclaim by the police based upon negligent legal advice raises different issues. Certainly, aspects of the relationship between these two parts of the criminal justice system have previously been considered, but not sufficiently to strike out this claim at the pleadings stage.

[12] Statutory immunity under s. 8 of MAGA would apply to the plaintiff’s claims against Scott and Hill if those claims were not otherwise struck out. However, statutory immunity does not extend to the claims against Scott and Hill made in the DRPS crossclaim. Other grounds raised by the moving parties do not justify striking out all of the crossclaim. This motion is therefore granted only in part.

Facts as alleged in the statement of claim

[13] Since this motion is brought primarily under Rule 21.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the facts as alleged in the now twice-amended statement of claim are assumed to be true. The following brief factual summary is therefore based entirely on the facts as alleged in the statement of claim. The crossclaim will be addressed separately.

[14] The statement of claim is lengthy and recounts the history of this matter in significant detail. Most of the alleged facts relate to police activity. No direct dealings between the plaintiff and Scott or Hill are alleged. The factual allegations regarding Scott and Hill are few and mainly very general.

[15] Very briefly, the facts as alleged in the statement of claim begin with events surrounding the murder of Beverly Smith in December 1974. The plaintiff and his then wife were neighbours of the victim and discovered her body. She had been shot.

[16] The initial police investigation into the murder took place in 1974 and 1975. Among other people, the plaintiff and his wife were interviewed by police. The victim’s husband supplemented his income by trafficking marijuana from their home. The victim also sometimes sold marijuana when her husband was not home. The police focused their investigation primarily on known drug users, drug customers and others with knowledge of drugs being kept in the victim’s residence. They also focused on trying to track down the murder weapon. That investigation did not lead to charges being laid.

[17] The police investigation was reopened in 1988, focusing on an individual who had supplied marijuana to the victim’s husband. That suspect was charged in March 1988, but ultimately released from custody when attempts to secure a confession from him were unsuccessful. He was never cleared by investigators.

[18] The police investigation was officially re-opened as a cold case in 2007. Many people were re-interviewed and re-investigated, including the plaintiff. By then, the plaintiff and his wife had split up. In February 2008, the plaintiff’s then ex-wife was re-interviewed. She gave a statement about what had happened that was different from her earlier interview, implicating the plaintiff.

[19] The plaintiff was arrested and charged with the murder in March 2008. Within a day, the plaintiff’s ex-wife was arrested and charged with obstructing a peace officer. She then gave another statement, further implicating her former husband. In the course of these events, the plaintiff’s ex-wife also said that she was responsible for the murder. In May 2008, the plaintiff’s ex-wife was arrested and charged with obstructing justice, to which she ultimately pleaded guilty.

[20] In the course of the 2007/2008 investigation, the police obtained and executed warrants for the plaintiff’s medical and psychological records in Alberta. Records were ultimately obtained by the police. The records were to remain sealed until otherwise ordered by a judge, but two police officers opened the package and read the records on the plane back to Ontario. Additional medical records were also obtained in Ontario.

[21] Later discussions led to an agreement that the medical records could be reviewed by police to ensure that they contained no confession to the murder. If they did not, the charge would be withdrawn. There was no confession in the records. On July 31, 2008, the charges were withdrawn by the defendant Scott on the basis that there was no reasonable prospect of conviction. Scott urged the police to continue their investigation using wiretaps.

[22] The defendant Detective Lynch was the lead investigator in the murder investigation from the time it was reopened in 2007 until its conclusion. Lynch and the DRPS were determined to secure a conviction against the plaintiff and decided to launch an undercover investigation aimed at that goal.

[23] The undercover investigation began as a simple plan for an undercover police officer to befriend the plaintiff, in the hope of gaining his trust and gathering evidence that would implicate him in the murder. It developed into a year-long “Mr. Big” operation, evolving into what is described in the statement of claim as a campaign of terror. The police used information from the plaintiff’s extensive psychiatric history to plan the operation.

[24] The proposal for a “Mr. Big” operation was submitted for approval on December 30, 2008, and approved by the defendant Kimmerly, an Inspector and Officer in the DRPS. He was in charge of the murder investigation. He was responsible for authorizing the initiation, continuation and expanded scope of the “Mr. Big” operation. At least forty police officers from the Durham police force were involved.

[25] Beginning on January 9, 2009, when the police investigators met with the defendant Scott, “agents of the Attorney General” were involved in supervising the conduct of the investigation.

[26] At each phase of the “Mr. Big” operation, the police arranged what they referred to as “scenarios” upon which they relied to obtain a judicial authorization to record the conversations between the undercover officers and the plaintiff. Between 2008 and 2009, Hill and Scott approved and submitted applications for interception warrants under Part VI of the Criminal Code, R.S.C. 1985, c. C-46.

[27] Starting in December 2008, numerous steps were taken to develop a relationship between the plaintiff and an undercover police officer. A close relationship did develop and the undercover police officer began involving the plaintiff in low-level criminal activity. The DRPS capitalized on the plaintiff’s poor financial situation and had the undercover officer draw the plaintiff into his exploits by rewarding him financially.

[28] The friendship and feigned criminal activity and reliance by the plaintiff on the undercover police officer continued over the following months. The plaintiff was introduced to another undercover police officer, portraying a longtime criminal associate. The second police officer was gradually built up to be a bigger, richer and more dangerous criminal. The police involved the plaintiff in more serious feigned criminal activity involving narcotics, large amounts of cash and guns.

[29] About five months into the operation, no evidence had been obtained implicating the plaintiff in the murder. The plaintiff had discussed the Beverly Smith murder from time to time, and maintained his innocence. The plaintiff was then brought in to an elaborate fake murder and “body dump” scenario, and was told to give the undercover officers information that could be used against him to keep him in line. There were further steps in the “Mr. Big” operation, causing the plaintiff to fear for his life.

[30] The plaintiff first confessed to being present when someone else murdered Beverly Smith and to taking a substantial amount of marijuana from her home. He later said he lied, and gave a second confession, saying he shot Beverly Smith. The confession was at odds with known evidence.

[31] The plaintiff was arrested and charged with the murder on December 10, 2009. After a preliminary inquiry in November 2011, he was committed to stand trial. He remained in custody until June 27, 2014, when the trial judge granted an application to exclude the statements relied upon as confessions. The plaintiff was released on bail. When the trial resumed in July 2014, Crown Attorneys who are not defendants in this action elected to call no evidence. The plaintiff was acquitted.

[32] The lengthy statement of claim recounts these and related events in great detail. The factual allegations alone comprise about 40 pages. Even if not mentioned in the above summary, I have taken into account every factual allegation, and assumed it to be true as required for the purpose of the Rule 21.01(1) motion.

[33] Despite the detail in the statement of claim, even after two sets of amendments, there are very few factual allegations regarding steps taken by the defendant Crown Attorneys. The allegations are mainly very general. The alleged facts regarding Scott and Hill are as follows:

(i) that Scott was the Crown Attorney for the Durham Region, was an integral part of the planning, supervision and execution of the “Mr. Big” operation and was involved in consultations with the police, and that Hill, an Assistant Crown Attorney, was similarly involved;

(ii) that Scott withdrew the 2008 charge against the plaintiff on the basis that there was no reasonable prospect of conviction, but urged the DRPS to continue its investigation into the plaintiff by intercepting his private communications pursuant to Part VI of the Criminal Code;

(iii) that Scott and Hill approved and submitted applications for interception warrants on a number of occasions between 2008 and 2009;

(iv) that the police investigators were not instructed by Scott or Hill to investigate any aspect of the plaintiff’s confession; and,

(v) that the defendants caused the plaintiff to be unlawfully arrested, including Scott and Hill, who were consulted by the police and provided legal advice to the police.

[34] The plaintiff also makes allegations regarding what the defendants generally, and Scott and Hill specifically, knew or ought to have known from time to time, and claims that damages have been suffered.

Facts as alleged in the crossclaim

[35] For the purposes of the motion to strike out the DRPS crossclaim, the facts as alleged in the crossclaim are assumed to be true, including those alleged in the statement of defence that are incorporated by reference.

[36] The facts alleged in the DRPS statement of defence and crossclaim are markedly different from the allegations in the statement of claim. They recount, again in significant detail, a course of conduct including factual allegations that implicate the plaintiff in the Smith murder. They recount “holdback” evidence that had not been publicly released, but was referred to by the plaintiff in his interview, and include quotations from various wiretaps, among other things.

[37] Focusing on the crossclaim against the moving party defendants, the facts include generic references to the “Crown Attorney’s Office” or the “Crown Attorney” or the “Crown.” There are a few more specific references to the “Crown Attorney for Durham” or “the local Crown Attorney” or “his superior in Newmarket.” Neither Scott nor Hill are referred to by name. However, in accordance with the applicable law, I have endeavoured to read the allegations generously as including Scott and Hill where possible to do so.

[38] Very briefly, according to the crossclaim, the Crown Attorney’s Office was consulted by the DRPS and provided legal advice and guidance that the DRPS relied upon in good faith when charging the plaintiff with murder in 2008. However, after the plaintiff’s former wife took steps resulting in the obstruction of justice charges, the murder charge was withdrawn by the Crown Attorney.

[39] With respect to the “Mr. Big” operation, the Crown Attorney’s Office was involved throughout including consultations by the DRPS with respect to the conduct of the undercover operation and provision by the Crown of legal advice and guidance with respect to the operation, on which the DRPS relied in good faith. The Crown also prepared the applications for judicial authorization of covert surveillance.

[40] The Crown Attorney’s Office, which had been providing approval of the proposed scenarios since the inception of the undercover operation, also approved the “body dump” scenario following consultation by the DRPS.

[41] The DRPS had regular contact with the Crown Attorney’s Office throughout the undercover operation. The Crown never suggested that anything might potentially pose an impediment to the successful prosecution of the case. Had the DRPS been advised otherwise by the Crown, it would not have proceeded as it did.

[42] The Crown Attorney for Durham Region advised the DRPS that, in his view, the DRPS could proceed to arrest the plaintiff following the November 2009 confession. The Crown Attorney consulted with his superior in Newmarket, who shared his view, but it was nevertheless suggested that a meeting take place with senior representatives of the Ministry of the Attorney General in Toronto. Representatives of the DRPS attended that meeting. The case was reviewed. The DRPS relied on the local Crown Attorney to lead the meeting.

[43] At the conclusion of the meeting, the Crown supported charging the plaintiff and indicated that it would prosecute the charge. In good faith reliance on this consultation with the Crown, the DRPS charged the plaintiff.

[44] The Durham police defendants plead that their relationship with the Crown Attorney’s Office was a solicitor-client relationship and that they relied in good faith on the legal advice and guidance provided by the Crown.

[45] The crossclaim is for contribution and indemnity with respect to the plaintiff’s claims. The causes of action alleged against the Attorney General of Ontario and the Crown Attorneys in the crossclaim are “negligent advice and breach of retainer with respect to the approval of the investigatory methodology employed during the course of the investigation, their advice that the results of the investigation would be admissible in court and that it formed a valid basis for the charging of the plaintiff.”

[46] Like the statement of claim, even if not mentioned in the above summary, I have taken into account every factual allegation in the crossclaim, including those incorporated by reference, and assumed them to be true for the purpose of the Rule 21.01(1) motion to strike out the crossclaim.

Analysis

[47] This motion gives rise to the following issues:

(1) whether the statement of claim, as against the moving parties, should be struck out as disclosing no cause of action under Rule 21.01(1)(b);

(2) whether the crossclaim, as against the moving parties, should be struck out as disclosing no cause of action under Rule 21.01(1)(b);

(3) in relation to both (1) and (2), whether the statutory immunity provided by s. 8 of MAGA precludes the claims against Scott and Hill in any event, substituting a claim against the Attorney General of Ontario only, which is a question of law raised in the pleadings that may be determined under Rule 21.01(1)(a); and,

(4) whether any relief arises from the other grounds put forward on this motion.

Rule 21.01(1)(b) – claim discloses no reasonable cause of action

[48] Rule 21.01(1)(b) provides that a pleading may be struck out if it discloses no reasonable cause of action. The test is well-settled. As recently stated by the Ontario Court of Appeal, “the purpose of a motion to strike is to eliminate hopeless claims”: Paton Estate v. Ontario Lottery and Gaming Corporation, 2016 ONCA 458, 19 E.T.R. (4th) 171, at para. 11, citing R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45. The necessary approach was succinctly put in Paton Estate at paras. 11-12, as follows:

(i) It is not determinative, on a motion to strike, that the law has not yet recognized a particular claim. Rather, the court must ask whether it is plain and obvious that the claim has no reasonable prospect of success.

(ii) The court must take the facts pleaded in the statement of claim as true, unless they are patently ridiculous or manifestly incapable of being proven, and the approach must be generous, erring on the side of allowing a novel, but arguable, claim to proceed.

(iii) No evidence is admissible on a motion to strike. Claimants must clearly plead all facts on which they intend to rely, because those facts are the basis on which the possibility of success will be evaluated.

(iv) The motion to strike is a tool that must be used with care. Often new developments in the law first surface on motions to strike.

[49] These same principles apply to the motion to strike out the crossclaim, bearing in mind that it is the factual allegations in the crossclaim that are assumed to be true.

[50] These principles must be applied separately to the statement of claim and the crossclaim, assuming as true only the facts within the relevant pleading.

[51] Where there is a dispositive defence, such as Crown immunity, claims have been struck out at the pleadings stage: e.g., Thompson v. Ontario (1998), 1998 CanLII 7180 (ON CA), 113 O.A.C. 82 (C.A.); Gilbert v. Gilkinson, 2005 CanLII 46386 (ON CA); Ciavarella v. Schwartz, 2014 ONSC 5061; Fragomeni v. Greater Sudbury Police Service, 2015 ONSC 3985, [2015] W.D.F.L. 4582.

Motion to strike out the statement of claim

[52] The plaintiff’s claims against the moving parties are based upon three causes of action: negligent investigation, unlawful arrest and imprisonment and intentional infliction of emotional distress. The main focus of the argument was on the tort of negligent investigation though the other causes of action were not abandoned.

[53] The moving parties’ position is that the common law Crown Attorney immunity precludes all causes of action except malicious prosecution, and the plaintiff’s claims in negligence are therefore bound to fail. The moving parties further submit that s. 8 of MAGA operates to provide the individual Crown Attorneys with personal immunity in any event.

[54] Those parties resisting the motion submit that the considerable case law on common law immunity does not apply to a pre-charge investigation. They submit that this novel claim should be permitted to proceed. With respect to s. 8 of MAGA, they advance interpretative arguments against its application here, and also ask that its interpretation be left to a later stage of the proceedings.

Common law Crown Attorney immunity

[55] The Supreme Court of Canada has considered Crown Attorney immunity in a series of cases over the last 25 years. There are three cases generally known as the malicious prosecution trilogy: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, 1989 CarswellOnt 415; Proulx v. Québec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, and Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339. There is also a significant recent Supreme Court case in the context of the Charter: Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214.

[56] Given the nature of the issues before me, I review these cases in some detail. They all have, as a common starting point, a member of the public aggrieved of the impact of the justice system upon him or her who wishes to claim relief outside the criminal justice system.

(i) Nelles v. Ontario - 1989

[57] The first case in the trilogy, Nelles, involved a nurse charged with the murder of four infant patients. Ms. Nelles was discharged on all counts after the preliminary inquiry. She then sued the Attorney General of Ontario, among others. The Attorney General was sued for the actions of the Crown Attorneys who allegedly “counselled, aided and abetted the police in charging and prosecuting the plaintiff”: Nelles, at para. 58. Like the case before me, the issue of Crown Attorney immunity was raised on a motion to strike out the claim on the grounds that it was plain and obvious that there was no reasonable cause of action. Alternatively, the moving party sought leave to determine a question of law, specifically, immunity.

[58] Nelles arose at a time when, at least in Ontario, Crown Attorney immunity from civil claims by members of the public was absolute. However, in some other jurisdictions, the door had been left open to a claim for malicious prosecution.

[59] The Supreme Court reviewed the law in Ontario and elsewhere and considered the issue from first principles. Lamer J. (as he then was), joined by Dickson C.J. and Wilson J., concluded that a narrow exception should be made to absolute immunity, specifically malicious prosecution. La Forest J. agreed for somewhat different reasons. The claim for malicious prosecution was permitted to proceed. McIntyre J. would have sent the matter to trial, and L’Heureux-Dubé J. would not have allowed for any exceptions, maintaining absolute immunity.

[60] In Nelles, Lamer J. considered the approach taken in the United States, which had been relied upon by the Ontario Court of Appeal. In Imbler v. Pachtman, 424 U.S. 409 (1976), the U.S. Supreme Court concluded that immunity applied to activities associated with the “judicial phase” and declined to comment on whether immunity would extend to administrative or investigative roles. This became known as a “functional approach.”

[61] Lamer J. gave extensive consideration to whether a “functional approach” would be appropriate. He held that it was not: para. 5. He considered some of the alternatives, and held that the functional approach to immunity was impractical, observing as follows at para. 31:

This line drawing exercise is made nearly impossible by the reality that many prosecutorial functions are multifaceted and cannot be neatly categorized. Further, it must be noted that however one categorizes a prosecutor’s function it is still that of the prosecutor. … In my view to decide the scope of immunity on the basis of categorization of functions is an unprincipled approach that obscures the central issue, namely whether the prosecutor has acted maliciously. If immunity is to be qualified it should be done in a manner other than by the drawing of lines between quasi-judicial and other prosecutorial functions. [Emphasis added.]

[62] Instead of a functional approach, the Court adopted an approach that depended upon a high threshold of liability for its justification as an exception to absolute immunity. As has now been accepted for decades, the Court held at para. 56 that absolute immunity must give way to a claim for malicious prosecution. The threshold for liability is very high.

[63] The tort of malicious prosecution, as accepted in Nelles at para. 42, has four required elements that must be proved by a plaintiff:

(a) the proceedings complained of must have been initiated by the defendant;

(b) the proceedings must have been terminated in favour of the plaintiff;

(c) there must not have been reasonable and probable cause; and

(d) there must have been malice, or a primary purpose other than that of carrying the law into effect.

[64] The first two elements are usually straightforward. The third element has both an objective and subjective component. The final element, malice, requires deliberate and improper use of the office of the Attorney General or Crown Attorney, as put by Lamer J. at para. 45:

In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney 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. [Emphasis added.]

[65] An exception for malicious prosecution was seen as consistent with the abuse of process doctrine that applied to public officials. As elaborated upon by McIntyre J., at common law, public officers and officials discharging or purporting to discharge the duties and powers of their offices may be personally liable in damages for wrongful conduct if a high threshold is met: Nelles, at para. 67, citing Roncarelli v. Duplessis, [1959] 1 S.C.R. 121. Where there is a gross abuse of power, there will be personal liability.

[66] These two exceptions to immunity, abuse of process for public officials and malicious prosecution for Crown Attorneys were later aptly described as “two sides of the same coin”: Miazga, at para. 51.

[67] In Nelles, both Lamer J. and McIntyre J. discussed the role of Crown Attorneys as “ministers of justice”. This moniker was used to describe the Crown’s role as excluding any notion of winning or losing and instead discharging a public duty with an ingrained sense of the dignity, the seriousness and the justice of judicial proceedings: Nelles, at para. 39, per Lamer J., quoting Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16. This role formed part of the analysis that resulted in the exception for malicious prosecution.

[68] In addition to considering the above issues, Lamer J. assessed the policy rationales for and against absolute immunity. Among other things, he had regard for the impact of absolute immunity on the victim, the impact on public trust and confidence, the potential “chilling effect” on the Crown Attorney’s exercise of discretion and a “floodgates” argument. He concluded that absolute immunity was not justified in the interests of public policy. He held that the very high threshold of misconduct required for malicious prosecution was critical in justifying an exception to absolute immunity, at para. 56, as follows:

There is no doubt that the policy considerations in favour of absolute immunity have some merit. But in my view those considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim. In my view the inherent difficulty in proving a case of malicious prosecution combined with the mechanisms available within the system of civil procedure to weed out meritless claims is sufficient to ensure that the Attorney General and Crown Attorneys will not be hindered in the proper execution of their important public duties. Attempts to qualify prosecutorial immunity in the United States by the so-called functional approach and its many variations have proven to be unsuccessful and unprincipled as I have previously noted.

[69] Lamer J. contrasted malicious prosecution with professional negligence, which would not have justified an exception: at para. 55.

[70] In the course of considering these issues, Lamer J. did raise a concern about absolute immunity precluding relief under the Charter, among many other things. The Charter was not at issue in Nelles. La Forest J. agreed with the common law position set out by Lamer J. except that, in his view, the Charter did not need to be considered at all.

[71] Thus, in Nelles, the majority of the Supreme Court allowed for a very narrow exception to Crown Attorney immunity, with a deliberately high threshold for liability. In doing so, the majority of the Supreme Court also rejected a functional approach to immunity based on the different duties and responsibilities of Crown Attorneys and rejected a negligence standard.

[72] The immunity from claims in negligence was underscored by the Ontario Court of Appeal in Thompson v. Ontario in 1998, following Nelles. In Thompson, the plaintiff was acquitted of first degree murder, and sued numerous defendants including three Crown Attorneys. The motion judge struck out a claim for negligent investigation based on the Crown’s common law immunity from suit. In upholding that decision, the Court of Appeal held that the claims against the Crown Attorneys “generally based on negligence in the performance of their duties” disclosed no reasonable cause of action: at para. 56.

(ii) Proulx v. Québec (Attorney General) - 2001

[73] More than a decade after Nelles, the Supreme Court of Canada reaffirmed its decision. In Proulx, an individual charged with first degree murder was found guilty by a jury. The conviction was overturned on appeal with strong criticism regarding the lack of credible evidence. The appellant then sued for malicious prosecution. There were issues before the Supreme Court regarding distinctions between Quebec public and private law that are not relevant to the case before me. However, all of the Court applied Nelles.

[74] The narrow exception to Crown Attorney immunity – malicious prosecution – was emphasized by the Court. As put by Iacobucci and Binnie JJ., at para. 4, Nelles affirmed “unequivocally” the public interest in setting the threshold for 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.”

[75] The Supreme Court recognized that individuals “caught up” in the justice system should be protected against abuses of power. The Court nonetheless reaffirmed Nelles, concluding that it was only where the conduct of the prosecutor constituted an “abuse of prosecutorial power” or the perpetration of a “fraud in the process of criminal justice” that requisite malice could be said to exist: Proulx, at paras. 44-45, per Iacobucci and Binnie, JJ.

Gilbert/Miguna – Ontario Court of Appeal

[76] Between the Supreme Court decision in Proulx and the third decision in the trilogy, Miazga, the Ontario Court of Appeal released two decisions that took an expanded approach to the malicious prosecution exception. The Court released Gilbert v. Gilkinson and Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 205 O.A.C. 257 (C.A.) on the same day. These cases follow Nelles and Proulx but allow that the focus of the exception should be on the malice requirement rather than on the specific tort of malicious prosecution.

[77] In Gilbert, the plaintiff had been convicted of assault arising from a domestic situation. His convictions were not set aside. However, he sued three Crown Attorneys, among others, for intentional infliction of harm by abuse of public office, intentional infliction of mental anguish, conspiracy and breach of the Charter. He did not sue for malicious prosecution.

[78] In Gilbert, the Court of Appeal held that a plaintiff must establish malice: at para. 5. The Court affirmed at the high threshold, but went further, as follows, at para. 7:

A high threshold of proof must be met by a litigant seeking to establish liability on the part of the Attorney General, a Crown Attorney, or an agent of the Crown, for what amounts to an abuse of their public office, whether the action is framed in malicious prosecution or in the guise of some other intentional tort. [Emphasis added.]

[79] The Court concluded that the allegations in the statement of claim did not amount to an allegation of malicious improper conduct. On the subject of ordinary negligence, the Court of Appeal held as follows, at para. 7: “There is no claim in negligence against the Crown for prosecutorial misconduct.”

[80] The Court upheld the order below, striking out the claim under Rule 21 as disclosing no reasonable cause of action.

[81] The second case, Miguna, arose from claims made against both the police and Crown Attorneys after the plaintiff was acquitted of a number of sexual assault charges. The Court followed Nelles, holding that there existed a narrow exception to the Crown’s immunity from suit for prosecutorial misconduct in cases where the prosecutor acted maliciously in fraud of his or her duties. However, the Court again observed that it was not clear from the authorities whether the narrow exception was confined to the tort known as “malicious prosecution”, but it was clear that “however the claim [was] framed, the Crown’s conduct must rise to the level of malice”: at para. 11. The factual detail in the pleadings was poor and the Court of Appeal concluded that the plaintiff ought to have been granted leave to amend: at para. 17.

[82] On the question of a claim for negligence, the Court of Appeal ruled once again, at para. 11, that: “No action lies against a Crown Attorney for prosecutorial misconduct that sounds in negligence.”

[83] These two Court of Appeal decisions arguably opened the door to other types of tort claims being made, provided that malice was alleged.

(iii) Miazga v. Kvello Estate – 2009

[84] The next decision in the Supreme Court trilogy, Miazga, was released almost ten years after Proulx. Foster parents had been charged and committed for trial for the sexual assault of three children. The biological parents and another party were also charged. The charges against the foster parents were stayed before they went to trial. Some years later, the three children recanted their allegations and a lawsuit for malicious prosecution was brought. The civil claim was successful at trial, upheld on appeal, but set aside in this 2009 decision by the Supreme Court of Canada.

[85] Perhaps because this was a malicious prosecution case, the Supreme Court did not address the issue of other torts raised by the Gilbert and Miguna decisions of the Ontario Court of Appeal.

[86] In a unanimous decision, the Supreme Court reaffirmed Nelles. The Court emphasized the high threshold for Crown liability as found in Nelles and reiterated in Proulx. The Court once again endorsed the conclusion that “Crown liability is engaged in only the most exceptional circumstances”: at para. 50. In that regard, the Court held that malice does not include recklessness, gross negligence or poor judgment, at paras. 8 and 81.

[87] In Miazga, Charron J., for the Court, referred to the relationship between the public law doctrine of abuse of process and the tort of malicious prosecution. At para. 51, she referred to it as “two sides of the same coin.” Charron J. expanded on it as follows:

[B]oth provide remedies when a Crown prosecutor’s actions are so egregious that they take the prosecutor outside his or her proper role as minister of justice, such that the general rule of judicial non-intervention with Crown discretion is no longer justified. Both abuse of process and malicious prosecution have been narrowly crafted, employing stringent tests, to ensure that liability will attach in only the most exceptional circumstances, so that Crown discretion remains intact. [Emphasis added.]

[88] Charron J. held that it was only when a Crown prosecutor steps out of his or her role as “minister of justice” that immunity was no longer justified. She held as follows, at para. 7:

Under the strict standard established in Nelles, malicious prosecution will only be made out where there is proof that the prosecutor’s conduct was fueled by “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.”[Citation omitted.] [Emphasis added.]

[89] Many interveners participated before the Supreme Court in Miazga. The respondents and some of the interveners urged that the test for malice was too high a barrier for any wrongly prosecuted person to obtain a remedy against a Crown prosecutor. The Court disagreed. As put by Charron J. at para. 52:

In my view, these arguments are ill-conceived and do not account for the careful balancing established in Nelles and Proulx 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. As this Court made plain in Nelles, the “inherent difficulty” in proving a case of malicious prosecution was an intentional choice by the Court, designed to preserve this balance. [Citation omitted.] [Emphasis added.]

[90] Once again, the Supreme Court rejected a lower standard, including a negligence standard at para. 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.]

[91] In Miazga, the Court held that “the respondents were victims of a clear miscarriage of justice which undoubtedly had a devastating effect on their lives”: at para. 2. The Court nonetheless set aside the judgment for malicious prosecution.

[92] Thus, there is an unbroken and strong Supreme Court trilogy confirming a very limited exception to Crown Attorney immunity – that is, the tort of malicious prosecution.

(iv) Henry v. British Columbia (Attorney General) - 2015

[93] The fourth Supreme Court decision that requires special focus is Henry. Unlike the Nelles/Proulx/Miazga trilogy, this was a claim for damages under s. 24(1) of the Charter.

[94] In Henry, the plaintiff had been convicted of 10 sexual offences in 1983, and was declared a dangerous offender. He was in prison for 27 years before the convictions were quashed in 2010. He then brought a civil action against numerous defendants, making a number of different claims. The only claim dealt with by the Supreme Court was a claim for relief under s. 24 of the Charter grounded on allegations that the Crown Attorney failed to make proper disclosure before, during and after the plaintiff’s criminal trial.

[95] The Court addressed the question of what level of fault must be established to obtain a Charter remedy in the circumstances. The Crown was urging a malice standard and malice had not been alleged by the plaintiff.

[96] Moldaver J., for the majority, concluded that a high standard was required but not as high as malice. The threshold imposed by the Court was as follows, at para. 31:

…a cause of action for Charter damages will lie where 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. This represents a high threshold for a successful Charter damages claim, albeit one that is lower than malice. [Emphasis added.]

[97] In establishing this new threshold, Moldaver J. noted that it was neither prudent nor necessary to decide whether a similar threshold for a Charter remedy would apply in circumstances not involving wrongful nondisclosure: at para. 33.

[98] The claim under s. 24(1) of the Charter was therefore permitted to stand. McLachlin C.J. and Karakatsanis J. concurred in the result but would have declined to impose a “fault” requirement.

[99] The reasons for decision of the Court in Henry are focused on principles regarding Charter rights and remedies. However, the malicious prosecution trilogy was considered, and Crown disclosure obligations were distinguished as constitutional obligations. The trilogy was not undermined. Indeed, at para. 66, Moldaver J. expressly noted that in rejecting the application of the malice standard, “I do not in any way seek to undercut this Court’s malicious prosecution jurisprudence.”

[100] Even though the liability threshold set in Henry is lower than malice, the Court still emphasized the importance of a threshold higher than simple or gross negligence: at para. 92. Moldaver J. held that “[a] duty of care paradigm risks opening up a Pandora’s box of potential liability theories” that would effectively impose an obligation on prosecutors to “police” the police in respect of disclosure: at para. 93. He found that widening the Crown’s exposure to liability in this way would be unwarranted, stating that “if police act improperly, a civil claim can and should lie against them”: at para. 93, citing Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129.

[101] Moldaver J. emphasized the problems that would result from the use of a negligence standard, at para. 94:

The problems with a negligence-based standard are even more apparent when considering how this lower threshold would operate at the pleadings stage. The lower the threshold, the greater the number of claims that would have to be defended. The mere fact of having to respond to an onslaught of litigation, even if ultimately unsuccessful, would chill the actions of prosecutors and divert them from their proper functions. It would be far too easy for a claimant with a weak claim to plead facts disclosing a cause of action for negligence – simpliciter or gross – and thus drive prosecutors into civil court. Bringing a Charter damages claim for prosecutorial misconduct should not be a mere exercise in artful pleading. In contrast, the threshold I have outlined ensures that many unmeritorious claims will be weeded out at an early stage, either on a motion to strike or a motion for summary judgment. [Emphasis added.]

[102] Thus, the Supreme Court’s decision in Henry has opened the door to Charter claims based upon Crown Attorney misconduct yet, in doing so, the Court has emphasized that even in that constitutional context there ought not be a negligence standard.

(v) Application to Smith statement of claim

[103] The statement of claim alleges three torts: negligent investigation, unlawful arrest and imprisonment, and intentional infliction of emotional harm. The main focus of the argument before me was on the first tort – negligent investigation – although the other causes of action have not been abandoned.

[104] The position of the moving parties is simple – they submit that common law immunity forecloses these tort claims. They submit that only a claim for malicious prosecution is permitted.

[105] The plaintiff seeks to distinguish the Nelles trilogy based on the stage of the activity in question and the nature of that activity. First, the plaintiff submits that Nelles and later cases relate only to the post-charge stage, not the investigation stage. Second, the plaintiff attempts to limit the trilogy to matters squarely within “prosecutorial discretion”.

[106] There is an overarching problem with the plaintiff’s position. The decision in Nelles is not tied to the stage of the proceedings. Malicious prosecution is the sole exception to what was previously absolute immunity. Accordingly, under the trilogy, there is immunity from civil suits brought by members of the public for all of the causes of action that have been advanced by the plaintiff.

[107] Malicious prosecution is not alleged in this action. Plaintiff’s counsel have made this clear. Unlike Miguna, this is not a case where the pleading is poor and the plaintiff may have intended to assert that cause of action.

[108] The Supreme Court has repeatedly rejected negligence as an appropriate claim by a member of the public against Crown Attorneys, as has the Ontario Court of Appeal: Nelles, at para. 55; Miazga, at para. 81; Miguna, at para. 11; Thompson, at para. 56; Gilbert, at para. 7.

[109] Even if the 2005 Ontario Court of Appeal decisions in Gilbert and Miguna were applied, there is still immunity from the plaintiff’s claims. These Court of Appeal cases would permit claims other than malicious prosecution provided that there is malice.

[110] The plaintiff does not allege or plead malice at all. The tort of negligent investigation is a claim in ordinary negligence with no malice requirement. Nor do the other two causes of action, for unlawful or false arrest and imprisonment and intentional infliction of emotional harm, have a malice requirement: Kovacs v. Ontario Jockey Club (1995), 1995 CanLII 7397 (ON SC), 126 D.L.R. (4th) 576 (Ont. Ct. (Gen. Div.)), at para. 45; Moak v. Haggerty, 2008 CanLII 65 (ON SC), [2008] O.J. No. 8, 2008 CarswellOnt 7 (S.C.), at para. 51; Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 161 O.A.C. 302 (C.A.), at para. 48. Again, this is not a case where the pleading is poor and the plaintiff may have intended to allege malice.

[111] Nor does the potential exception from Henry apply in this case. In Henry, the Supreme Court left the door open to claims for relief under section 24(1) of the Charter. However, it has been confirmed that Charter claims are not made as against Scott or Hill personally, and the claim against the Attorney General is only on the basis that the Attorney General may be liable for Scott and Hill. In turn, no submissions about the substance of the Charter claims were made before me. In any event, in Henry, the Supreme Court reaffirmed Nelles and the related cases in the trilogy and once again rejected a negligence standard.

[112] The plaintiff’s arguments amount to the same sort of “functional approach” that was rejected in Nelles. The plaintiff submits that the court should consider each of the activities pleaded and distance them from the prosecution itself. The alleged “supervision of and consultation with the police” was at the investigation stage, the plaintiff submits, and not part of the prosecution.

[113] The plaintiff submits that these activities are outside the scope of immunity. However, as put by Lamer J. at para. 31 in Nelles, “to decide the scope of immunity on the basis of categorization of functions is an unprincipled approach.” He further emphasized that the “line drawing exercise is made nearly impossible by the reality that many prosecutorial functions are multi-faceted and cannot be neatly categorized”: at para. 31.

[114] Indeed, the duties of a Crown Attorney in relation to prosecutions are broadly stated and are not limited to post-charge activity. Section 11 of the Crown Attorneys Act, R.S.O. 1990, c. C.49, provides generally that Crown Attorneys “shall aid in the local administration of justice and perform the duties that are assigned to Crown Attorneys under the laws in force in Ontario…”.

[115] Further, although the case before me is mainly focused on the stage before the 2009 charge, it is not that clear cut. There was an earlier charge in 2008, which was withdrawn. It is at that stage, as pleaded, that the defendant Scott is first mentioned. He withdrew the charge, but also urged the police to continue their investigation using wiretaps. Section 11(a) of the Crown Attorneys Act expressly includes the duty to cause charges to be further investigated as one of the duties of Crown Attorneys. All of the activity at issue took place after that first charge in 2008.

[116] As well, the activity in question includes consultation with the Crown Attorneys regarding whether or not the 2009 charge should be laid. That was also the case in Proulx.

[117] The difficulties in attempting to draw a line between various Crown activities was illustrated in oral argument, during which even the plaintiff’s position on where to draw the line changed over the course of the argument.

[118] In a similar attempt at line drawing, the plaintiff submitted that the focus should be on whether particular activities are narrowly a matter of “prosecutorial discretion”. If not, the plaintiff submits that there is no immunity.

[119] One of the principles underlying the trilogy is the importance of prosecutorial discretion. It is not, however, the sole foundation upon which immunity has been preserved. Prosecutorial discretion was given some attention in Nelles but the Court did not decide that immunity was limited to matters within prosecutorial discretion. Instead, a functional approach was rejected.

[120] The role of prosecutorial discretion had more prominence in Miazga, where the Court was considering whether the malice threshold was too high. Charron J. did say that when a prosecutor stepped outside his or her role as a minister of justice, immunity was no longer justified, but she did so in the context of confirming that a high threshold was required for liability. The prosecutor’s conduct had to be fueled by a motive that involved an “abuse or perversion” of the system of criminal justice. In Miazga, the Court expressly rejected negligence claims, at para. 81.

[121] As well, the Supreme Court has rejected the plaintiff’s proposed narrow approach to what falls within prosecutorial discretion.

[122] The plaintiff seeks to rely on Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, which described “prosecutorial discretion” as a term of art referring to the use of those powers that constitute the “core” of the Attorney General’s office: at para. 43. Krieger provided a non-exhaustive list of examples, all of which related to post-charge activities: at para. 46. However, at para. 38 in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, the Supreme Court addressed what was described as “confusion” that had arisen subsequent to Krieger regarding what was meant by “prosecutorial discretion”. Moldaver J., for the Court, indicated that the law had become “cloudy”: at para. 38. He indicated that the use of the word “core” in Krieger had led to a narrow definition of prosecutorial discretion, notwithstanding the expansive language use elsewhere in Krieger.

[123] In Anderson, the Supreme Court rejected a narrow definition of “prosecutorial discretion” in favour of a broader approach: at paras. 44-45.

[124] Of most significance, in Henry, Moldaver J. emphasized that “the policy concerns raised in the malicious prosecution trilogy are not confined to the exercise of core prosecutorial discretion”; the concerns addressed in the trilogy have a “broader reach and are implicated whenever there is a risk of undue interference with the ability of prosecutors to freely carry out their duties in furtherance of the administration of justice”: at para. 76 (emphasis added).

[125] Thus, Crown Attorney immunity under the Nelles trilogy is not limited to the exercise of prosecutorial discretion in any event.

[126] The police defendants support the plaintiff and submit that the tort of negligent investigation should be extended to permit claims against Crown Attorneys, or at least that it is not plain and obvious that such a claim cannot be made. In addition to the arguments addressed above, they rely upon Hill v. Hamilton-Wentworth Regional Police Services Board.

[127] In Hill, the Supreme Court of Canada found that the police may be sued for the tort of negligent investigation. The police attempted to claim immunity in Hill. That submission was rejected, as it was some years earlier in R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, at para. 35. Unlike Crown Attorneys, there is no recognized immunity for the police. Hill and Campbell support a different outcome for each of these participants in the criminal justice system.

[128] I therefore conclude that the plaintiff’s claims against the moving parties are barred by the dispositive defence of common law immunity from civil suits brought by persons who are or were the subject of a prosecution. I will, however, mention two other challenges with the plaintiff’s allegations. In addition to the pleading that the Crown Attorneys supervised and consulted with the police, it is alleged that they approved and obtained wiretap authorizations and provided legal advice to the police.

[129] The pleading with respect to wiretap authorizations is very general. However, to the extent that it arises from Scott or Hill fulfilling the statutory requirement under s. 185 (1) of the Criminal Code that a designated agent of the Attorney General sign applications for authorizations, I question whether the exercise of that function can be collaterally attacked in a negligence claim.

[130] With respect to legal advice, it is settled law that a party cannot sue the opposite party’s legal advisor in ordinary negligence – the opposite party’s lawyer owes no duty of care to the plaintiff, although there is a potential exception for intentional torts: Lawrence v. Peel Regional Police Force (2005), 2005 CanLII 3934 (ON CA), 250 D.L.R. (4th) 287 (Ont. C.A.); Baypark Investments Inc. v. Royal Bank of Canada (2002), 2002 CanLII 49402 (ON SC), 57 O.R. (3d) 528 (S.C.), at para. 33; Shuman v. Ontario New Home Warranty Program, 2001 CarswellOnt 3666, [2001] O.J. No. 4102 (S.C.), at para. 25.

[131] I conclude, based on an extensive body of law, that the plaintiff’s claim against the moving parties is bound to fail, and should be struck out without leave to amend.

Motion to strike out the DRPS crossclaim

[132] The motion to strike out the DRPS crossclaim is limited to the crossclaim itself – that is, the claim for contribution and indemnity based on negligent advice and breach of retainer. The moving parties do not seek to strike out any of the allegations in the statement of defence. They do not seek to preclude the DRPS defendants from relying, in their defence, on the fact that they received legal advice from the Crown Attorney’s Office and relied on that advice in good faith.

[133] The moving parties’ primary ground for relief on this branch of the motion is also Crown Attorney immunity. They submit that only a claim of malicious prosecution can be brought against a Crown Attorney. Alternatively, the moving parties submit that there is no private law duty of care owed to the police and, in any event, s. 8 of MAGA operates to provide the individual Crown Attorneys with personal immunity; only the Attorney General can be sued. Lastly, they submit that the crossclaim for contribution, as distinct from indemnity, fails given that there is no proper claim against them by the plaintiff.

[134] The DRPS defendants submit that Crown immunity does not apply and that it is not plain and obvious that there is no duty of care. They further submit that personal immunity under s. 8 does not apply, and dispute the other positions as well. The York police defendants support the DPRS position and have indicated their intention to bring a similar crossclaim.

[135] For the reasons set out below, I strike out the crossclaim only in part.

(i) Common law Crown Attorney immunity

[136] The extensive body of law about common law immunity simply does not focus on lawsuits by the police against Crown Attorneys. The Nelles trilogy and related cases all have, as a common starting point, a member of the public aggrieved by the impact of the justice system upon him or her who wishes to claim relief outside the criminal justice system. Proulx spoke of the individuals “caught up in the justice system”: at para. 4. Miazga spoke of the “victims of a clear miscarriage of justice”: at para. 2. This forms part of the analysis in each of the key cases. In Nelles, Lamer J. had regard, in his analysis, for the victim of the alleged malicious prosecution who wished to bring a civil claim: at para. 50. The rationale based on Roncarelli v. Duplessis employed by McIntyre J. in Nelles and emphasized by Charron J. in Miazga is also fundamentally focused on responsibilities to members of the public.

[137] As recently confirmed by the Supreme Court in Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621 at para. 41, the high threshold in the Nelles trilogy flows from the “choice made to preserve a balance 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”, citing Miazga at para. 52. The focus of these cases is the rights of individual citizens, not the rights of the police.

[138] Thus, the common law immunity grounded in the trilogy and related cases has been recognized only within the context of civil claims by members of the public. I am not prepared, at this preliminary stage, to divorce common law immunity from that context. I allow for the possibility that an immunity defence could be advanced against the crossclaim. However, there is not a recognized dispositive defence that justifies striking out the crossclaim at the pleadings stage. I therefore conclude that it is not plain and obvious that common law immunity will defeat the crossclaim.

(ii) Duty of care

[139] This analysis relates to the claim in tort based on alleged negligent legal advice. The claim for breach of retainer is dealt with separately below.

[140] The moving parties submit that there are significant arguments against imposing the alleged duty of care, which ought to foreclose the imposition of a duty. The police submit that there is a duty of care. The police further submit that, in any event, this novel claim ought not be dismissed at the pleadings stage, relying on the Court of Appeal decision in Paton Estate.

[141] The test to determine whether a private law duty of care is owed in a particular category of relationship was developed by the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728 and modified by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, and more recently in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45. It is sometimes referred to as the Cooper-Anns test.

[142] The first consideration is whether the duty of care asserted has already been recognized in law. If so, a duty of care is established and it is not necessary to engage in the Cooper-Anns analysis.

[143] The claim made by the police against the Crown Attorneys based on negligent legal advice is accepted by the parties as novel. I agree. There is, of course, a recognized tort for negligent legal advice in a traditional lawyer/client relationship, but there are differences between that relationship and the relationship at issue in the crossclaim. The differences that were raised before me are mentioned below.

[144] If a case does not clearly fall within a relationship that has been previously recognized as giving rise to a duty of care, it is necessary to proceed with the analysis under the Cooper-Anns two-stage test to determine whether or not a duty of care should be recognized: Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at para. 15.

[145] As set out in R. v. Imperial Tobacco at para. 39, the Cooper-Anns two-stage test asks the following:

(1) whether the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the claimant; and,

(2) if so, a prima facie duty of care arises, and the analysis proceeds to ask whether there are policy reasons why that prima facie duty of care should not be recognized.

[146] The focus of the first stage of the analysis is the relationship between the parties. The second stage is not focused on the relationship; it is concerned with the effect of recognizing a duty of care. At the second stage of the above test, the onus shifts to the defendant: Childs, at para. 13.

[147] The principle that animates the first stage of the Cooper-Anns test is whether the relationship is sufficiently close or “proximate” to attract legal liability: Hill v. Hamilton-Wentworth Regional Police Services Board, at para. 31. This proximity analysis focuses on factors arising from the relationship such as expectations, representations, reliance and the nature of the interest engaged by that relationship: Cooper, at paras. 30 and 34.

[148] On the assumed facts, the police sought and were given legal advice by the Crown Attorneys on significant aspects of the “Mr. Big” operation, over an extended period. The police relied on that legal advice in good faith. The police made decisions about the investigation and charge based upon that advice. The Crown Attorneys were involved in the decision-making process. Those decisions have been challenged in this action, and it is claimed that they caused the plaintiff significant damage. If the plaintiff’s action against the police is successful, they will suffer damage.

[149] The police submit that there is proximity just as there would be in a traditional lawyer/client relationship. They further submit that the issues raised by the moving parties regarding the imposition of a duty of care are really policy considerations under the second stage of the Cooper-Anns test, for which the moving parties bear the onus.

[150] The moving parties submit that their relationship with the police is characterized by mutual independence, which is inconsistent with proximity. The moving parties rely on case authority to the effect that Crown Attorneys and the police have different roles and responsibilities, are independent of one another, and the maintenance of that independence is important. There certainly is authority to that effect, although those cases do not focus on a potential duty of care arising from the giving and receiving of legal advice.

[151] In R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, the Supreme Court emphasized the need for separation between the police and Crown functions and, at para. 66, adopted the following quote from the Marshall Report: [^1]

We recognize that cooperative and effective consultation between the police and the Crown is also essential to the proper administration of justice. But under our system, the policing function – that of investigation and law enforcement – is distinct from the prosecuting function. We believe the maintenance of a distinct line between these two functions is essential to the proper administration of justice. [Emphasis added.]

[152] The police submit that the Marshall Report is outdated, along with the Martin Report[^2] from 1993, although the Martin Report also encouraged consultation between the police and Crown Attorneys at its Recommendation 22:

The Committee recognizes the long standing tradition in Ontario of police consultation with the Crown in matters of difficulty at the pre-charge stage of the investigation. The Committee encourages this tradition of co-operative consultation to continue where, in the judgment of senior police officers, consultation is warranted. [Emphasis added.]

[153] The moving parties rely on two more recent cases that emphasize the independent roles of police and Crown Attorneys and also consider the question of advice given by Crown Attorneys to the police.

[154] In R. v. Atout, 2013 ONSC 1312, when considering whether the police or the Attorney General was responsible for editing sealed search warrant materials, K. Campbell J. considered what he described as the unique dual role of agents of the Attorney General. In doing so, he described the police and the Crown as “mutually independent”: at para. 56. He elaborated as follows:

There is no question that the Crown and the police exercise different functions and operate independently of one another. Neither exercises supervisory authority over the other. Police officers exercise their own discretion in conducting investigations and, for the most part, in laying criminal charges. The police may seek the advice the Crown, but are not bound to follow any advice that may be provided. Crown counsel are similarly independent in the exercise of their discretion in the prosecution of criminal cases. [Emphasis added.]

[155] The issue of advice also arose in R. v. Riley, 2008 CanLII 36775 (ON SC). In the context of an application to exclude evidence, the accused challenged the adequacy of the legal advice given by the Crown Attorney to the police in relation to the use of s.184.4 of the Criminal Code. In rejecting that argument as irrelevant, Dambrot J. also described the relationship as one of mutual independence. At para. 145, he adopted the following passage from the Martin Report regarding advice given by Crown Attorneys to the police, as follows:

As a matter of law, police officers exercise their discretion in conducting investigations and laying charges entirely independently of Crown counsel. The police seek the advice of the Crown only where they think it appropriate. And while it is no doubt prudent to do so in many cases, the police are not bound to follow the advice of Crown counsel as that advice relates to the conduct of the investigation and the laying of charges. …

[156] Dambrot J. held that treating legal advice by Crown counsel as part of the decision-making process in a police investigation puts at risk the maintenance of the distinct line between investigative and prosecutorial functions that is essential to the proper administration of justice: at para. 147.

[157] The moving parties also rely on the statutory regime, which is relevant context in assessing the sufficiency of the proximity between the parties: Syl Apps Secure Treatment Center v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, at para. 27.

[158] The moving parties submit, based on the Crown Attorneys Act, that Crown Attorney duties are owed to the administration of justice generally, not to the police. In turn, the moving parties raise the potential for conflict of interest as a reason not to impose a duty. In the traditional lawyer-client relationship, a lawyer owes a duty of loyalty to his or her client, including the duty to avoid conflicting interests and the duty of commitment to the client’s cause: R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 19.

[159] However, a conflict or potential conflict of interest does not necessarily negate a prima facie duty of care. It forecloses the imposition of a duty only if there is an overarching public duty and there is a real potential for negative policy consequences: Hill v. Hamilton-Wentworth Regional Police Services Board, at para. 40. In addition, I do not see it as presumptively necessary to import every aspect of a traditional lawyer-client relationship into a potential new duty of care. A new duty of care may have different characteristics: e.g., Childs, considering commercial versus social host liability. The Neil formulation of a duty of loyalty may not apply.

[160] The police rely on two Supreme Court of Canada cases in support of finding a relationship of proximity and prima facie duty of care: R v. Campbell, which recognized that the relationship between a Crown Attorney and the police gives rise to solicitor/client privilege, and Krieger v. Law Society of Alberta, which held that Crown Attorneys are subject to a lawyer’s ethical obligations and related professional regulation.

[161] In R. v. Campbell, the Supreme Court considered the nature of the relationship between the police and Crown within the context of a motion to stay a conviction arising from a reverse sting operation by the RCMP. Among other issues, the Court dealt with a request for disclosure of the legal advice the RCMP had received from the Department of Justice. The RCMP had defended the motion in part based on its good faith reliance upon that legal advice. The RCMP had attempted to resist disclosing the advice based upon solicitor-client privilege and were found to have waived their privilege: at para. 67.

[162] The Supreme Court held that in the course of a criminal investigation, the police are independent and not to be considered a servant or agent of the government. However, the Court also recognized that the principles underlying solicitor-client privilege applied to the relationship between the RCMP and the Department of Justice: at paras: 49-54.

[163] The availability of solicitor-client privilege is an important characteristic of the relationship between a lawyer and his or her client. This is acknowledged by the moving parties, who agree that the advice given to the police is the subject of solicitor-client privilege and refer to the police in the written submissions as the “client.” And ordinarily, a client can sue his or her lawyer for negligent legal advice.

[164] As confirmed in R. v. Campbell, the protection of solicitor/client communications is based on the relationship and communications between solicitor and client, which are essential to the effective operation of the legal system: at para. 49. This case supports the submission that the relationship between Crown Attorneys and the police may give rise to proximity and a prima facie duty of care.

[165] In the second case, Krieger v. Law Society of Alberta, the Supreme Court considered a number of issues arising from a complaint made to the Law Society of Alberta about Crown disclosure. The complaint was made by an accused based on a rule of professional conduct that was specific to Crown disclosure obligations.

[166] The Supreme Court held that Crown Attorneys, like all lawyers, are subject to the ethical rules of practice imposed by provincial law societies, provided that those rules do not conflict with constitutional obligations. The complaint was permitted to proceed.

[167] Krieger v. Law Society of Alberta supports the conclusion that a Crown Attorney is subject to ethical rules, which include the obligation to provide competent advice to a client. This decision also supports a relationship giving rise to proximity and a prima facie duty of care.

[168] The police further submit that the issues raised by the moving parties regarding independence are more properly considered in the second stage of the Cooper-Anns test. Under the second stage of the Cooper-Anns test, the moving parties raise the prospect that Crown Attorneys may become reluctant to give the police legal advice.

[169] Whichever stage applies, none of the authorities provided to me squarely address this important issue: how would the availability of a tort claim for negligent legal advice interfere with the relationship between these two important parts of the criminal justice system? Why is it inconsistent with independence? The provision of competent independent legal advice to the police would, it seems to me, serve the administration of justice. How would legal responsibility for negligent advice interfere? Criminal defence counsel must also exercise independent judgment, yet they are exposed to claims for negligent legal advice. All counsel have an overarching ethical duty to the administration of justice yet their relationship with their clients ordinarily gives rise to the potential for claims for negligent legal advice. These are issues that were not fully explored in the argument before me, perhaps because the moving parties were mainly relying on an immunity defence.

[170] The moving parties and some of the above judicial decisions rely on the Martin Report and the Marshall Report in support of their analysis, yet the police submit that those reports are outdated and do not reflect the modern approach of consultation between the police and Crown Attorneys. A third report is also put forward: the Report of the Review of Large and Complex, Criminal Case Procedures.[^3] One need only consult these three reports to see that the relationship between the police and Crown Attorneys is sophisticated, complex and of critical importance to the criminal justice system. However, these reports do not consider the potential impact of the introduction of a tort claim for negligent legal advice.

[171] Perhaps more significantly, these reports are relied upon in part for their facts about the relationship between these parties. To the extent that this is done on consent it may be acceptable even on a Rule 21 motion, but the reliance on these reports is not entirely on consent. And it has become apparent to me that a more comprehensive factual record is needed to properly consider this novel claim. Much of what was discussed in the Cooper-Anns analysis in Hill v. Hamilton-Wentworth Regional Police Services Board arose from a full record. In R. v. Regan, there was evidence from a number of witnesses about the relevant Crown practices. The facts about the relationship between the police and Crown Attorneys in cases and in these reports are not a proper basis to strike out a claim under Rule 21(1)(b) of the Rules of Civil Procedure.

[172] The submissions regarding the Cooper-Anns test have raised important issues regarding the relationship between the police and Crown Attorneys, including policy issues. I am mindful of the Court of Appeal’s caution in Paton Estate regarding the importance of a factual record when addressing issues arising in novel claims under Rule 21(1)(b): at para. 48. A motion for summary judgment or trial is more appropriate in this case.

[173] I conclude that it is not plain and obvious on this Rule 21(1)(b) motion that there is no duty of care owed by Crown Attorneys to the police in regard to negligent legal advice in this case. Nor is the claim insufficiently pled under Rule 25.11. That claim is not struck out.

(iii) Breach of retainer

[174] Quite apart from the issues of novelty and law, the crossclaim for breach of retainer is unsupported by the minimum necessary pleaded facts. This is a cause of action in contract. The crossclaim does not plead the necessary elements of a breach of contract claim, specifically offer, acceptance, consideration and material terms. A generous reading of the pleading may cover some of the necessary elements but not all of them.

[175] This is the sort of deficiency for which there should be an opportunity to amend: Miguna, at para. 24. I therefore strike out this cause of action with leave to amend.

(iv) Statutory immunity – s. 8 of MAGA

[176] The moving parties rely on s. 8 of MAGA to strike out any claims against Scott and Hill that are not otherwise struck out under other grounds. This is put forward as a question of law raised in the pleadings that may be determined under Rule 21.01(1)(a).

[177] Section 8(1) provides Crown Attorneys with personal immunity from suit in certain circumstances. Section 8(2), in turn, allows for an action against the Attorney General in the place of a Crown Attorney. The scope of s. 8 has been challenged on this motion.

[178] The plaintiff and police object to addressing this question of law on this motion, relying on PDC 3 Ltd. Partnership v. Bregman + Hamann Architects (2001), 2001 CanLII 38745 (ON CA), 52 O.R. (3d) 533 (C.A.) In PDC 3, the Court declined to decide a question of law on a Rule 21 motion. The Court held at para. 11 that important issues of law were normally decided on a full factual record and that the Court needed evidence on the reasonable expectations of the parties to decide the issue before it. Much has changed in the last fifteen years in relation to deciding significant issues before trial. But more importantly, on the motion before me, neither the plaintiff nor the police have identified any relevant evidence that is not before me. Given the specific interpretative issues that have been raised, I conclude that it is appropriate to proceed.

[179] The moving parties submit that s. 8 provides Scott and Hill with personal immunity from both the claim and the crossclaim. The plaintiff submits that statutory immunity under s. 8 does not extend to the investigative stage at all, and argues that s. 8 only applies to prosecutorial functions. The DRPS and York police defendants submit that it is “doubtful” that s. 8 applies to the plaintiff’s claim and they submit that s. 8 does not provide immunity from the crossclaim in any event.

[180] Subsection 8(1) provides immunity to Crown Attorneys as follows:

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:

9. A Crown Attorney, Deputy Crown Attorney or assistant Crown Attorney appointed under the Crown Attorneys Act. …

[181] Subsections 8(2) and (3) then demarcate when an action may be brought against the Attorney General instead of a Crown Attorney, as follows:

8. (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.

(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. [Emphasis added.]

[182] As expressly stated in s. 8(3), an action may be brought against the Attorney General under this section only if there is an action against the Crown Attorneys in the first place. Subsection 8(3) does not expand the available types of claims against Crown Attorneys.

[183] There is little judicial consideration of s. 8. The Court of Appeal provided a two-paragraph decision in a malicious prosecution case even though the action had been discontinued. In Kukemueller v. Ontario (Community Safety and Correctional Services), 2016 ONCA 451, a motions judge had declined to apply s. 8, relying on cases that predated it. The Court of Appeal clarified that the section would apply, as follows, at para. 1:

We allow the appeal even though the action has been discontinued, in order to clarify the law. Section 8 of the [MAGA] gives individual Crown Attorneys immunity from being named personally in an action or proceeding for damages alleging prosecutorial misconduct, and substitutes the Attorney General as the proper defendant.

[184] Accordingly, the Crown Attorney who had been sued for malicious prosecution in Kukemueller would have had personal immunity under s. 8 had the action not been discontinued, but the claim could have been pursued against the Attorney General instead. This is not disputed before me. Similarly, in Ontario (Ministry of the Attorney General) v. John, 2016 ONSC 2529, an action was struck out on the basis of personal immunity under s. 8 of MAGA: at paras. 20-21.

[185] The interpretative issues raised before me have apparently not been previously considered. They are as follows:

(i) whether s. 8(1), and specifically the phrase “any act done or omitted to be done in the performance or purported performance of a duty or authority in relation to the prosecution” captures the plaintiff’s claims regarding the investigation stage; and,

(ii) whether the crossclaim must be considered separately from the plaintiff’s claim when determining whether s. 8(1) applies to it and, if so, with what outcome.

[186] Although I have struck out the plaintiff’s claim against the moving parties claim already, I will briefly consider how s. 8 would have applied to it given that it provides the backdrop to considering the issues raised by the crossclaim.

[187] The proper approach to statutory interpretation is well-accepted. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature: Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129 (C.A.), at p. 134, 67 O.A.C. 135, at para. 9; Rizzo & Rizzo Shoes Ltd. (Re.), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.

[188] I begin with statutory context. The Act that became MAGA was originally The Ministry of the Solicitor General Act, S.O. 1972, c. 2. It was silent on the subject of proceedings against Crown Attorneys personally. At the time, pre-Nelles, the Ontario common law provided Crown Attorneys with complete immunity from suit. Only in 1989, with Nelles, did that change. And even in the Nelles case itself, the Crown Attorneys were not personally named as defendants. The Attorney General of Ontario was sued based on their actions.

[189] Section 8 came into force on December 15, 2009. It was introduced through the Good Government Act, 2009, S.O. 2009, c.33, which amended or repealed over 300 statutes. It appears that there was no specific government commentary on the introduction of s. 8. The parties submit that its purpose is best ascertained having regard to the jurisprudence on prosecutorial immunity at the time of its enactment. This is consistent with the undisputed position that s. 8 at least provides personal immunity from suit for claims for malicious prosecution.

[190] The plaintiff goes further and submits that s. 8 was intended to address malicious prosecution claims only. The plaintiff relies on its timing, coming into force just after the Supreme Court of Canada decision in Miazga. However, the Bill that put forward s. 8 predated Miazga. Further, the plain words of the section do not support the plaintiff’s position. Instead of simply referring to malicious prosecution, s. 8(1) uses broad wording to describe the personal immunity provided under it. It refers to “any act done or omitted to be done in the performance or purported performance of a duty or authority in relation to the prosecution”.

[191] Applying s. 8 to the plaintiff’s claim, there is no question that the statement of claim is an action for damages commenced by a person who was the subject of a prosecution, specifically the murder charge laid against the plaintiff in December 2009 that was dismissed at trial. The plaintiff’s claim satisfies s. 8(1) in that regard.

[192] The section then requires that the action be in respect of any act done or omitted to be done in the performance or purported performance of a duty or authority. The satisfaction of that requirement is not disputed.

[193] The dispute centers on the final words of s. 8(1) – that the act done or omitted to be done must be “in relation to the prosecution”. The plaintiff submits that because his claims relate to the investigation stage and the arrest, not the prosecution itself, s. 8 immunity is not available. I disagree.

[194] The phrase “any act done or omitted to be done in the performance or purported performance of a duty” is very broad. As previously noted, s. 11 of the Crown Attorneys Act provides broadly that Crown Attorneys shall aid in the local administration of justice. The phrase “in relation to” a prosecution is also very broad.

[195] Although “in relation to” has not been interpreted under s. 8 specifically, that phrase has been interpreted in other settings and given a broad meaning. In R. v. Trac, 2013 ONCA 246, 115 OR (3d) 424, a case requiring the interpretation of s. 490.1 of the Criminal Code, Doherty J.A. noted that the phrase “in relation to” commonly appears in statutes and “describes in broad terms a connection between two things”: at para. 92.

[196] In my view, a broad interpretation of “in relation to” is appropriate bearing in mind the purpose of s. 8. It prevents civil claims against Crown Attorneys in the discharge of their duties, yet permits a plaintiff with a valid cause of action to pursue that claim against the Attorney General instead. It is not a restrictive provision that must be strictly interpreted: Meyer v. Bright, at paras. 7-9. It does not prevent a plaintiff from pursuing a valid claim.

[197] The question then becomes whether or not there is a connection between the conduct of Scott and Hill that is complained of and the prosecution of the plaintiff. It is apparent that there was. It was the investigation that led to the charges and the prosecution. As well, the claim includes consultation regarding whether to charge the plaintiff and the consequences of being charged. These activities are all broadly “in relation to the prosecution” that the plaintiff was the “subject of”, to use the words of s. 8(1). Accordingly, if I had not struck out the plaintiff’s claims against Scott and Hill based on common law immunity, I would have struck them out under s. 8(1).

[198] There is then the question of whether or not the plaintiff could have pursued his claims against the Attorney General under s. 8(2). A plain reading of s. 8(3) shows that an action may only be brought against the Attorney General if the action could have been brought against the Crown Attorney in the first place. Section 8 does not create new causes of action. If a claim is struck out under Rule 21.01(1)(b) as disclosing no reasonable cause of action, it cannot be pursued against a Crown Attorney or the Attorney General.

[199] Moving to the crossclaim, the threshold issue is whether the s. 8(1) analysis can be based upon the plaintiff’s claim or must begin again by considering the crossclaim as the “action or other proceeding.” In other words, once a claim has been commenced that falls within s. 8(1) – the plaintiff’s claim – is the consequential claim for contribution and indemnity covered by s. 8(1) as well? The moving parties submit that it should be covered.

[200] Although I see some logic to that submission, it is inconsistent with the words and structure of subsections 8(1) and (2):

(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… a Crown Attorney…

(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. [Emphasis added.]

[201] I conclude that these two subsections are intended to work in parallel, to address claims by a person who is or was the subject of a prosecution. They are essentially procedural. They provide immunity to Crown Attorneys and permit the action to proceed against the Attorney General.

[202] Any potential argument that subsection (1) broadly encompasses the crossclaim as arising from the main action would create an inconsistency with the words of subsection (2). Subsection (2) only allows for a claim against the Attorney General by a person who is or was the subject of a prosecution.

[203] I therefore conclude that personal immunity from the crossclaim does not properly derive from the main action. The crossclaim is the “proceeding” that must be considered under s. 8(1) and (2). The claim for personal immunity under s. 8(1) then immediately fails. Obviously, the DRPS defendants are not persons who were the subject of a prosecution, a requirement for immunity under s. 8(1).

[204] This outcome is consistent with the legislative history and the development of the law of common law immunity. Like common law immunity under the Nelles trilogy and related cases, the focus of this statutory immunity is on claims brought by members of the public aggrieved of the impact of the criminal justice system on them. The focus is not on claims between the police and Crown Attorneys.

[205] As submitted by the moving parties in argument, the potential unavailability of statutory immunity from the police crossclaim, now so found, is another issue to consider in the Cooper-Anns analysis regarding whether the proposed duty of care for negligent legal advice should be recognized.

[206] The moving parties were unable to explain in argument on what basis the Attorney General was sued in the crossclaim, other than as potentially under s. 8 of MAGA. Since s. 8 does not apply, the crossclaim does not allege a cause of action against the Attorney General and that aspect of the crossclaim is struck out. I will give leave to amend to allow the DRPS defendants an opportunity to clarify their claim.

(v) Claim for contribution

[207] The moving parties submit that the crossclaim for contribution ought to be struck out in any event, if the plaintiff’s claims are struck out. Unlike the crossclaim for indemnity, the crossclaim for contribution requires that there be a claim by the plaintiff against the moving parties as well as the DRPS.

[208] It is a precondition of the right to resort to contribution that there is liability to the plaintiff: R. v. Imperial Tobacco Canada Ltd., at para. 29. The crossclaim for contribution is therefore struck out.

Crossclaim/Third party claim

[209] There were submissions before me regarding whether the crossclaim needed to be redone as a third party claim in the event that the plaintiff’s claims against the moving parties were struck out. The DRPS submits that those extra procedural steps ought not to be required. I agree.

[210] The rules applicable to crossclaims and third parties claims are, in all relevant respects, the same. The moving parties will have the same rights to defend both the claim against them by the DRPS and the plaintiff’s claim, among other procedural rights: see Rules 28.01, 28.06, 28.09, 29.01 and 29.05. Extra steps to reconstitute the crossclaim as a third party claim are an unnecessary formality.

[211] The DRPS defendants raised Rule 23.03, which provides for the automatic dismissal of a crossclaim arising from a discontinuance of an action, unless the court orders otherwise. This Rule ought not apply because there has been no discontinuance. However, to remove any uncertainty, I order that the crossclaim is not dismissed as a result of the striking out of the plaintiff’s action as against the moving parties. Going forward, the moving parties will continue to be defendants to the crossclaim to the extent that the crossclaim has not also been struck out.

Potential crossclaim by the York police defendants

[212] The York police defendants have indicated an intention to bring a crossclaim similar to that of the DRPS police defendants. They request certain declaratory relief that amounts to pre-approval of the substance of the crossclaim even though the pleading is not before me. I am not prepared to grant relief in regard to the substance of a hypothetical crossclaim.

[213] For reasons of procedural efficiency, I do permit the York defendants to bring their claim against the moving parties using the crossclaim procedure even though the main claim has been struck out, rather than a third party claim. This is not, however, a ruling about the content of such a crossclaim.

Summary

[214] I therefore order as follows:

(i) the motion to strike out the statement of claim as against the moving parties is granted;

(ii) the specific passages of the statement of claim that are struck out are as listed in paragraph 3 of the amended notice of motion;

(iii) the crossclaim for contribution as against the moving parties is also struck out;

(iv) the motion to strike out the DRPS crossclaim for indemnity based upon negligent legal advice, as against Hill and Scott, is dismissed;

(v) the motion to strike out the DRPS crossclaim for indemnity based upon breach of retainer and the crossclaim for indemnity against the Attorney General is granted, with leave to amend within 30 days of today;

(vi) with respect to the question of law, s. 8(1) of MAGA provides statutory immunity to Scott and Hill in regard to the plaintiff’s claims, but not the DRPS crossclaim; and,

(vii) the York defendants are permitted to bring their claim over in the form of a crossclaim, rather than now proceeding by way of a third party claim.

[215] If there are any procedural matters that the parties wish to raise with me for reasons of efficiency, they may contact my office to schedule a case conference after consultation with one another.

[216] If the parties participating in this motion are unable to agree on costs, any party seeking costs shall make their submissions by delivering brief written submissions together with a costs outline by January 6, 2017. Any party from whom costs are claimed may respond by delivering brief written submissions and any other material by January 27, 2017. This timetable may be modified on agreement between the parties provided that I am notified of the new timetable by January 6, 2017.

Justice W. Matheson

Released: November 29, 2016

[^1]: Royal Commission on the Donald Marshall, Jr., Prosecution, Vol. 1: Findings and Recommendations (Halifax, Nova Scotia: Queens Printer, 1989).

[^2]: Hon. G.A. Martin, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Queen’s Printer for Ontario, 1993).

[^3]: The Hon. Patrick J. Lesage and Prof. Michael Code, as he then was, Report of the Review of Large and Complex Criminal Case Procedures (Queen’s Printer for Ontario, 2008).