Leave to Appeal

Torts: Misfeasance in Public Office; Police v. Prosecutors

Ontario (Attorney General) v. Clark, 2019 ONCA 311 (38687)

The Respondents, all police officers, arrested and charged two individuals in connection with an armed robbery and forcible confinement. Both accused provided videotaped statements. One of the accused provided a false exculpatory statement and the other provided a statement admitting to their involvement in the crime. They both later claimed the police officers had assaulted them during their arrests. The officers denied assaults had taken place and provided the Crown Attorney with exculpatory evidence that supported their position. Proceedings against one of the accused were stayed on the basis of the assault claim. The other accused was convicted of the charges but subsequently brought a Charter application seeking to stay the proceedings against him on the ground the Respondents had assaulted him. However, the exculpatory evidence provided by the police was never made known to the court. The trial judge decided a reduced sentence was the appropriate remedy to address the assault claim. The accused appealed and the C.A. upheld the assault finding and entered a stay of proceedings. Both sets of reasons from the courts contained language that was highly critical of the conduct of police officers during the arrests of the two accused. The police officers brought an action against the Attorney General for Ontario, alleging the Crown Attorneys involved failed to pursue and put forward available evidence that contradicted the assault claims of the accused. They alleged the Crown’s actions and omissions caused irreparable harm to their reputations. Their claims were based on allegations of negligence and misfeasance in public office. The Attorney General brought a motion to strike their claims. The motion judge struck the claim in negligence but allowed the claim for misfeasance in public office to proceed. Both parties appealed. The C.A. upheld the decision of the motion judge. “The application for leave to appeal…is granted with costs in the cause.”