The Court of Appeal of Ontario upheld a decision to reject a negligence-based claim against Crown lawyers.
But the panel of appeal court judges said they upheld the lower court's decisions on different grounds. The decision, Clark v. Ontario (Attorney General), 2019 ONCA 311, said the motion judge erred in the analysis of what duty of care Crowns owe police in a claim that Crown attorneys caused "emotional trauma" to police officers.
The lower court’s finding that “courts have not considered the potential Crown Attorney civil liability to police officers” was too narrow, the appeal judges said in the decision.
“All roads lead to the same destination — the Crown is not liable to police officers in negligence,” the judges said.
The case focuses on allegations that police officers assaulted two men arrested in connection with an armed robbery. Police officers Jamie Clark, Donald Belanger and Steven Watts, accused of assaulting the men, sued the attorney general, saying Crown attorneys didn’t investigate assault allegations enough and didn’t call evidence to refute the abuse allegations.
The officers said they suffered “significant depression, emotional trauma and loss of enjoyment of life” and “irreparable damage to their reputations and credibility among members of the judiciary, the Attorney General’s Office, the criminal defence bar and the public at large,” wrote justices Peter Lauwers, Grant Huscroft and Gary Trotter in the decision.
A misfeasance claim against the Crown will go forward, but not the negligence claim, the Court of Appeal ruled.
“It would not serve the criminal justice system well for busy Crown attorneys to worry about being dragged into court to fight off the grievances of disgruntled police officers,” according to the April 18 decision.
Sean Dewart, a partner at Dewart Gleason LLP in Toronto, says it was encouraging to see the Court of Appeal squelch the “offensive” idea that police officers should have greater remedies in these types of cases, but he noted that the court emphasized that the law around suing Crowns seems “locked in place.”
“I would say that they doubled down,” says Dewart. “There are really very, very few effective remedies for Crown misconduct. It is obvious that from time to time Crowns misconduct themselves. . . . The Court of Appeal has followed — as it has to, I guess — the lead of the Supreme Court of Canada in taking an unnecessarily restrictive view of when Crown attorneys should have to answer for alleged misconduct. Obviously, this matter is going to have to make its way to the Supreme Court of Canada before the situation liberalizes. As matters presently stand, a lawyer advising a client who wants to sue a Crown attorney would be very ill advised to tell the client to jump into litigation.”
Both police officers and the attorney general appealed aspects of the lower court’s decision, made by motion Justice David Stinson of the Superior Court of Justice.
The officers had accused the attorney general of negligence, but Stinson struck that claim.
The men did not complain of injuries at the time of the arrest, but one, Randy Maharaj, mentioned during a bail hearing that he had “visible bumps and scratches under his ear,” and while incarcerated, he said there were “bruises to his upper arm.”
In a preliminary hearing, Maharaj said he “had been kicked on the side of the head.” The officers denied the allegations in the hearing. The other man also testified he was assaulted.
An X-ray showed that Maharaj had “an acute rib fracture” that would make it “excruciatingly painful to make any movements with his arms or upper body,” a doctor told the man’s lawyer. But in a videotaped statement following the arrest, the man moved and lifted his arms.
Charges against one man were stayed, and the other man was prosecuted and convicted, but that conviction was also set aside as the court ultimately entered a stay. The Toronto Special Investigations Unit later found the rib injury was from after the arrest.
The officers appealed Stinson’s decision.
The attorney general also appealed Stinson’s decision to strike a motion that the officers’ allegations were barred by the expiry of the limitation period. The attorney general additionally appealed Stinson’s decision to allow the officers’ misfeasance in public office claim to continue.
The panel of Court of Appeal judges upheld Stinson’s decisions on both of the attorney general’s appeals, but the judges said that, while they agreed with the motion judge’s decision to strike the negligence claim, they had different reasons.
The appeal court noted that a decision cited by the motion judge, Smith v. Attorney General of Ontario, was subsequently overturned. The motion judge had cited the case in concluding it is “not plain and obvious” that the Crown immunity to negligence claims from police officers have been recognized by existing case law. While Stinson was “treating the matter as an open question” in his analysis, the appeal court argued that the negligence issue was well settled and is indeed “plain and obvious.”
The essential question, they wrote, was whether the scope of Crown immunity should be “diluted” to permit negligence claims by police officers.
“The decision of Crown attorneys to initiate, continue or terminate a prosecution should be based on whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest,” the appellate judges wrote.
Cameron Fiske, a partner at Milosevic Fiske LLP in Toronto, says the decision clearly explains the line between how the courts will treat allegations against Crown lawyers in cases of negligence versus cases of intentional and unlawful acts that would go against the Crown’s sworn duties.
“Crown attorneys — what they do has an impact on people’s lives. When Crown attorneys get it wrong, they can harm people. There is no question that negligent actions on the part of the Crown can cause harm,” he says. “However, there is that competing issue that Crown attorneys also act in the public interest. . . . you may have a situation where they become concerned to take any steps. We don’t want that as a society either. So where are we drawing that line?”
Fiske says the decision was on an early motion and that the allegations have not been proven in court. Brian Gray, spokesman for the Ministry of the Attorney General, acknowledged that the Court of Appeal dismissed the plaintiffs’ appeal and the attorney general’s two appeals, but Gray said that since this matter remains before the courts, it would be inappropriate to comment further. Lorne Honickman, the lawyer for the appellants, could not comment as of deadline.
“You do not want Crown attorneys acting in the public interest to be making decisions out of fear that they will be sued for negligence,” says Fiske. “What the Court of Appeal says is that actions in negligence against the Crown are not allowed. The misfeasance claim can go forward. And the reason for that is the tort of misfeasance deals with actions that are deliberate and unlawful.”