The Door to Police Claims against Crown Prosecutors Closes: Ontario (Attorney General) v. Clark, 2021 SCC 18


In an earlier Police Legal Update,  we reviewed the Court of Appeal’s decision in Clark v Ontario (Attorney General), 2019 ONCA 311 where the Ontario Court of Appeal upheld a trial judge’s decision to strike a claim in negligence by police officers against Crown prosecutors and allowed the misfeasance in public office claim against the prosecutors to proceed. The Supreme Court of Canada has now overturned the Court of Appeal’s decision in an 8 -1 majority holding that the immunity Crown prosecutors enjoy due to their unique positions in the justice system applies to misfeasance claims by police officers for the same reason it applies to claims in negligence.


Three police officers arrested two people in connection with an armed robbery. One of the accused filed an application to stay the proceedings against him and to exclude the evidence of a confession he made on the day of his arrest on the basis that the police officers beat him during the arrest causing serious injury. The Crown prosecutors agreed the confession would not be admissible, and the charges against him were stayed. The other accused was convicted, but he also filed a stay alleging he was assaulted during the arrest as well. The Crown prosecutors did not call the officers to give evidence and conceded at trial that the assault happened as alleged. The judge called the assaults “police brutality” and the findings were reported in the news. The stay proceedings were appealed, and the Court of Appeal also condemned the officers’ alleged conduct.

Meanwhile, the Toronto Police Service Professional Standards Unit conducted its own review of the allegations against the officers and concluded the allegations could not be substantiated.


The three police officers commenced an action against the Attorney General, alleging negligence and misfeasance in public office. While the negligence claim was struck at trial, the misfeasance claim was allowed to continue. The Attorney General appealed the Court of Appeal’s decision to the Supreme Court of Canada.


Madam Justice Abella, writing for the majority, found that Crown prosecutors have immunity from claims by police officers for decisions made in the course of a criminal proceeding.

Crown prosecutors do not owe specific legal duties to the police in terms of how they carry out a prosecution and misfeasance in public office cannot be used to get around this. Piercing the immunity of Crown prosecutors would put prosecutors in conflict with their duties of objectivity, independence and integrity and maintaining public confidence in the administration of justice. Prosecutorial immunity advances the public interest by enabling Crown prosecutors to make discretionary decisions in their quasi-judicial roles as ministers of justice without fear of inappropriate external interference.

Ultimately, the Supreme Court held that allowing police officers to sue prosecutors for decisions made in the course of criminal proceedings would create risks to the rights of the accused (who are uniquely vulnerable to the misuse of prosecutorial power); to prosecutorial independence and objectivity; and, would undermine the integrity of the criminal justice system as a whole. Police investigate a crime. The Crown prosecutor then assesses whether a prosecution is in the public interest and, if so, the prosecutor’s role is to carry out that prosecution in accordance with a prosecutor’s independent duties. Exposing Crown prosecutors to the spectre of civil liability would create a chilling effect, and obfuscate the Crown prosecutor’s core duties to act objectively and independently in the interests of the integrity of the system and the rights of the accused.


Madam Justice Côté was the sole dissent, opining that the rule of law requires equality before the law, and is thus incompatible with absolute immunities. In her view, a two‑step analysis should be used to decide whether prosecutorial immunity should be applied in a particular situation: (1) the first step is whether there are convincing policy reasons for piercing the immunity, and (2) the second step is determining whether the liability threshold for the tort at issue is high enough to tamp down policy concerns and to safeguard prosecutorial independence.

Regarding the first step, four policy reasons justify not applying prosecutorial immunity in cases where police officers suffered serious damages arising from unlawful and deliberate prosecutorial misconduct: (1) the tactical nature of the decisions involved; (2) the significance of the interests at stake; (3) the lack of meaningful alternative remedies and accountability mechanisms; and (4) public confidence in the office of prosecutor and in the police.

With respect to the second step, Justice Côté opined that the liability threshold for the tort of misfeasance in public office is enough to mitigate policy concerns and to safeguard prosecutorial independence because a plaintiff must establish deliberate misconduct that demonstrates bad faith or dishonesty. When considered in this specific context, the high threshold provided by the elements of misfeasance adequately protects against a chilling effect on the exercise of prosecutorial discretion, interference with prosecutorial independence, and the diversion of Crown prosecutors from their duties.


Canada’s highest court has again made it clear Crown prosecutors do not owe any duties to police officers in the course of criminal proceedings. While Madam Justice Côté’s comments about indiscriminate immunity may be compelling at first blush, prosecutorial immunity is a defining feature in Canada that allows Crown prosecutors to fulfill their duties to the administration of justice and to the accused without undue influence. Despite the unique role police officers play in the administration of justice, which, in some cases can expose them to significant reputational and professional consequences, they are not unlike any other witness insofar as the duties owed to them by the Crown prosecutors.

For more information, please contact David McKnight, Naomi Krueger or Melody Cheung.

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