Ontario (Attorney General) v. Clark, 2019 ONCA 311, 2021 SCC 18 (38687)

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

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

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

The SCC (8:1) allowed the appeal and struck the misfeasance claim.

Justice Abella wrote as follows (at paras. 40-41, 47, 58-61):

“…allowing police officers to initiate such causes of action would raise profound risks to the rights of the accused and to prosecutorial independence and objectivity, and it would undermine the integrity of the criminal justice system.

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

…Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. To use misfeasance to get around this reality would be to permit a police officer to take a prosecutor to court to challenge the prosecutor’s compliance with his or her public duties (Odhavji, at para. 29). Such a relationship of legal accountability between the prosecutor and the police is irreconcilable with their critically “separate and distinct” roles (Smith, at para. 65).


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

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

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

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

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