In Ontario (Attorney General) v. Clark (“Clark“), the majority (8 judges) of the Supreme Court of Canada held that Crown immunity precludes claims based on misfeasance in public office. Justice Côté dissented. Here I consider the policy underpinnings and ramifications of the two opinions.
Clark addressed only the question of whether the claim at issue, brought by police officers against the Crown attorneys in two cases in which the officers were involved, constituted a recognized cause of action. Decisions by Stinson J. of the Superior Court of Justice and by the Court of Appeal held that Crown immunity did not extend to misfeasance in public office and that the claim, since it was properly pleaded, could proceed.
Three police officers brought the claim because, they alleged, the trial Crown and the Crown at the Court of Appeal had intentionally failed to introduce evidence that would have contradicted the allegations by two accused that the officers had assaulted them. This was, the officers said, misfeasance by the Crowns in the performance of their duties. (They also made a claim in negligence.) The findings of police abuse at trial and at the Court of Appeal in these cases had an impact on the sentencing of the accused and, the officers alleged, on the reputations of the officers.
The Relevant Decisions
This post requires reference to and discussion of seven decisions, including the Supreme Court of Canada decision in Clark. For ease of identification throughout the post, I’m listing them here:
1. R. v. Singh (SCJ, Thorburn J.) (“stay decision”): March 28, 2012. Application for a stay by Singh following his conviction for armed robbery with a weapon and forcible confinement.
2. R. v. Singh (SCJ, Thorburn J.) (“sentencing decision”): July 27, 2012. Sentencing of Singh.
3. R. v. Singh (ONCA, Blair J.A., for the Court) (“CA’s stay decision”): December 12, 2013. Court of Appeal enters a stay of Singh’s conviction.
4. Clark v. Attorney General of Ontario (SCJ, Stinson J.) (“statute of limitations decision”): January 4, 2017. Preliminary decision refusing to grant summary dismissal on basis the action is barred by the expiry of the limitations period.
5. Clark v. Attorney General of Ontario (SCJ, Stinson J.) (“SCJ misfeasance decision): June 13, 2017. Decision striking negligence claims and allowing misfeasance claim to proceed.
6. Clark v. Attorney General of Ontario (ONCA, The Court) (“CA’s misfeasance decision”): April 18, 2019. Decision upholding SCJ decision on the expiry of the limitations period, the negligence claim (for different reasons) and the misfeasance claim (“the pleading of misfeasance in public office was adequate and that Crown attorneys are not immune from claims of liability for misfeasance in public office”).
7. Attorney General of Ontario v. Clark (“Clark”, Abella J. for the majority, Côté J., dissenting): April 30, 2021. Decision granting the Attorney General’s motion to strike officers’ claim for misfeasance (the only claim outstanding).
I base my summary on the facts underlying the decisions relating to the accused, in part on Côté J.’s extensive recitation and the lower court decisions dealing with the charges against one of the accused, Singh (see the stay decision, the sentencing decision and the CA’s stay decision). (Justice Abella set out these underlying facts more concisely.)
Police officers Clark, Belanger and Watts arrested Singh and Maharaj for armed robbery and forcible confinement; Singh and Maharaj were alleged to have robbed Singh’s employer, tying him up. The employer escaped after they had left and called the police. Maharaj made a video that inculpated both of them; the charges against him were stayed. Singh made an exculpatory video “that has been shown to be false” (Clark, Côté J., para. 77); he was convicted.
During their bail hearing, Maharaj’s counsel referred to injuries Maharaj had apparently received during his arrest, but did not include a rib injury allegedly received during interrogation. Justice Côté states: “The medical practitioners at Maplehurst are adamant that if Maharaj had complained about a rib injury, they would have recorded it in the context of their routine medical examination of any new inmate.” (Clark, Côté J.,para. 79)
The officers were called to give testimony at the preliminary inquiry where Maharaj’s counsel questioned them about an assault during the arrest, but counsel “did not otherwise challenge the voluntariness of his client’s inculpatory video statement” (Clark, Côté J., para. 80). The two accused were committed to stand trial. Before the trial, however, Maharaj’s counsel brought a stay application and a motion to exclude the confession. The assault Maharaj described was brutal. Counsel gave the trial Crown Maharaj’s Maplehurst medical record, which showed bruises and fracture of his ribs. According to the doctor who viewed the X-ray (Dr. Moss), there was a rib fracture, but someone with such a fracture would suffer “excruciating pain if he or she made any movements with the upper body or arms”. He said it was possible that the fracture occurred the day of the arrest, but the Crown did not ask if it had occurred at any other time and also did not show him Maharaj’s videotaped statement made the day of arrest, in which Maharaj “had no difficulty lifting his arms and moving his upper body” (Clark, Côté J., para. 83).
After the trial Crown consulted with the Senior Crown Attorney, they decided to stay the charges against Maharaj. Singh was found guilty, but he subsequently filed an application under the Canadian Charter of Rights and Freedoms seeking a stay of his conviction, claiming he also had been the subject of police brutality. The trial Crown “allegedly” had told the police officers they would be called at trial, but decided against doing so and conceded the assaults and Charter breach. She made submissions for a reduction in Singh’s sentence.
The application judge expressed surprise that the Crown did not call the police and wondered whether the injuries could have come in any other way; the Crown stated “‘There is no evidence that it occurred in any other way'” (Clark, Côté J., para. 88). The judge reduced Singh’s sentence and condemned the police conduct in no uncertain terms. She also encouraged an investigation into the police conduct: “This reduction in Singh’s sentence does not and should not serve as a substitute for further investigation into and punishment of those involved in this reprehensible conduct.” (Sentencing decision, para. 64). Côté J. noted that both the trial Crown, in relation to Singh’s accusations of abuse, thought that Singh exaggerated and the application judge considered Maharaj to be not a credible witness (Clark, Côté J., para. 95 and stay and sentencing decisions).
The Special Investigations Unit began an investigation but did not complete it because Maharaj would not participate. The Toronto Police Service Professional Standards Unit (“TPSPS Unit”) also investigated, although neither Maharaj nor Singh participated. The investigators for the TPSPS Unit showed Dr. Moss Maharaj’s video statement, in which he raised and moved his arms; Dr. Moss’s opinion was that the rib injury must have occurred the day before the arrest and had healed. Based on all the evidence, the TPSPS Unit concluded that the allegations of assault could not be substantiated (Clark, Côté J., para. 93).
The appeal Crown did not take any steps to assess the accusations of assault further. The Court of Appeal asked the appeal Crown about the situation. Here Abella J., writing for the majority, and Côté J. disagree on exactly what happened at the Court of Appeal in this regard. Justice Abella stated that the Crown did tell the Appeal Court that the TPSPS Unit carried out an investigation and “she was not aware of any resulting disciplinary action against the police officers” and she offered to give the court a copy of the the report, which the court refused (Clark, Abella J., para. 55). Justice Côté, however, interpreted the appeal Crown’s conduct as “suppress[ing] the exculpatory nature of the TPSPS Unit’s report” (Clark, Côté J., para. 104).
Justice Blair for the Court of Appeal stated the following: “The evidence of the appellant and Maharaj with respect to the assaults was not contested. None of the police officers testified and the Crown called no other evidence to counter that tendered on behalf of the appellant. Nor does the Crown contest that evidence on appeal. It therefore provides the factual framework for what actually happened.” (CA’s stay decision, para. 11). He also states that Singh did not seek medical attention until 10 days later, despite the severity of what is described, and then comments, “however, the Crown does not dispute the foregoing narrative” (CA’s stay decision, para. 25).
After the appeal decision vacating Singh’s conviction, the SIU reopened its investigation and found the claims against the police officers were not substantiated. The Toronto chief of police asked the OPP to review the SIU’s report and the OPP investigator released his report in April 2015 and saw no reason to disagree with the SIU’s report. (See SCJ misfeasance decision, paras. 20 and 21.)
The Court of Appeal stayed Singh’s convictions and made very negative comments about the police officers’ alleged conduct. Justice Blair, for the Court, concluded, “a stay of the convictions is necessary ‘to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future.’” (CA’s stay decision, para. 49, citation omitted)
According to the police officers, the findings about the police officers’ conduct affected not only them personally, even though they were effectively cleared by the TPSPS, and even though the evidence against them was suspect, despite the courts’ condemnatory statements about them, but also followed them when they gave evidence in future cases (Clark, Côté J., para. 144).
The police officers sued the Ontario Attorney General on June 22, 2016 (The Court, CA, para. 31); the Attorney General then brought motions under Rule 21.01(1)(a) and (b) of the Ontario Rules of Civil Procedure to strike the claim “on the grounds that the claim is statute-barred by the expiry of the limitation period, the negligence claim discloses no reasonable cause of action, and the misfeasance in public office claim is not properly pleaded” (Stinson J., SCJ, para. 4). Justice Stinson held that “it was not plain and obvious that the limitations issue will be decided against the plaintiffs and [he] declined to strike the claim on that ground” (statute of limitations decision, para. 4). On this point, the Court of Appeal held that “these were not the sort of rare circumstances in which it would be appropriate to find that the action was time barred in the context of a r. 21.01(1)(a) motion” (CA’s misfeasance decision, para. 37). Justice Stinson subsequently held that for policy reasons it was inappropriate to impose a private duty of care by the Attorney General towards police officers and he struck the negligence claim. He did, however, find that the officers had properly pleaded a claim for a tort of misfeasance in public office and he allowed it to proceed. (SCJ misfeasance decision) The Court of Appeal also allowed the misfeasance claim to proceed (CA’s misfeasance decision).
As Abella J. for the majority of the SCC explains,
 The misfeasance pleading was based on the claim that the prosecutors’ conduct was deliberately unlawful and committed with knowledge that it would result in reputational harm to the officers. Against Ms. Cressman [the trial Crown], the pleading stated that her unlawful conduct included her failure to properly ascertain the veracity of the assault allegations, her failure to call the police as witnesses to refute what the officers described as false and defamatory claims, and her ignoring or being wilfully blind to facts that exculpated the officers.
 Against Ms. Alyea [the appeal Crown], it was also claimed that she had acted for the improper purpose of protecting Ms. Cressman in not informing the Court of Appeal of the results of the PSU report, which exculpated the officers. The officers also claim that Mr. Armstrong [the senior Crown with whom the trial Crown consulted and who agreed to stay the charges against Maharaj] acted unlawfully in breach of his duties, but the claim against him is not particularized.
Justice Abella also summarized “the elements and proper scope of the tort of misfeasance”, which, she said, “are not disputed”: “A successful misfeasance claim requires the plaintiff to establish that the public official engaged in deliberate and unlawful conduct in his or her capacity as a public official, and that the official was aware that the conduct was unlawful and likely to harm the plaintiff….” (Clark, Abella J., para. 22; citation omitted).
Specifically, the officers alleged the trial Crown failed “to take sufficient steps to investigate and rebut the claims of police brutality made by the accused in their stay applications [and] that Ms. Cressman acted in deliberate disregard of her oath of office…to act ‘without favour or affection to any party’. (See Crown Attorneys Act, s.8). They also alleged that the appeal Crown “failed to inform the Court of Appeal of the results of the PSU report, thereby acting for the improper purpose of protecting Ms. Cressman” (Clark, Abella J., para. 24).
(One final point before moving to my thoughts on the policy considerations. This case illustrates the “speed” of the legal system. The police arrested Maharaj and Singh in June 2009. The preliminary inquiry took place between July and November 2010 (Clark, Côté J., para. 80). Justice Thorburn released her decision on Singh’s stay application (after his conviction) on March 28, 2012 and she released her decision sentencing Singh on July 27, 2012. The Court of Appeal stayed Singh’s convictions on December 12, 2013.
There was a delay before the police officers commenced their action in June 2016 and the Attorney General brought the motion to dismiss, after which the proceedings, dealing only with the law, ran somewhat more quickly: Stinson J. released his limitations decision on January 4, 2017 and his misfeasance (and negligence) decision on June 13, 2017. The Court of Appeal released its decision on these issues on April 18, 2019 and the Supreme Court of Canada released its decision on April 30, 2021.)
The first notable difference in how Abella J., for the majority, and how Côté J., in dissent, approach the question of whether there should be a third qualification to absolute prosecutorial immunity for crown attorneys is how they approach the analysis.
Justice Abella approached her decision primarily in the abstract, with only minor reference to the accusations and the two crowns’ conduct (paras. 4-21, which include factual statements of the claims against the crowns and the legal proceedings); the remainder of paragraphs 22 to 62 analyse the legal question and policy concerns. Justice Côté, although dealing in depth with the legal question and policy concerns (paras. 63-69 and 113 to 173), also takes great care in detailing the background events, recognizing that although assumed to be true for the current purpose, they must be proved to be true at trial (paras. 70 to 108). The question being addressed is not merely an “academic” one, assessed without appreciating the impact of the crowns’ conduct on the police officers’ lives.
On the one hand, in some cases, Abella J. has explained with empathy the impact of the law on those it affects and interprets the law liberally to provide a remedy; here, however, the police officers are more or less hovering in the background, but their experience plays little part in determining the legal question. On the other hand, Côté J., while expressing concern for the experience of those affected by the law, has in other cases nevertheless resiled from taking a broad approach that would give them a remedy. (Compare the two judges’ analyses in Fraser v. Canada (Attorney General), for example.)
A second crucial distinction between their analyses effectively determines the outcome of their analysis. For Abella J., prosecutorial immunity is all about the relationship between the Crown and the accused and police officers cannot intervene in this relationship. This is at the heart of her analysis. Justice Côté does not exactly disagree on this point, but she takes a step that allows her to come to a different result. She provides the police officers with an “accused-adjacent” or status by analogy as an accused (they “are in a position similar to that of accused persons”) (Clark, Côté J., para. 65).
For Abella J., prosecutorial liability must be assessed in a framework that balances “the policy consequences of exposing prosecutors to liability” and “the need to safeguard and vindicate the rights of the accused”; accused are particularly susceptible to the misuse of prosecutorial power (Clark, Abella J., para. 26). Prosecutorial immunity allows prosecutors to carry out their obligations in relation to the accused without concern for interference from the judiciary or political bodies, stemming from the principles of independence, “the related risks to objective decision-making and a concern about diverting prosecutors from their public interest duties” (Clark, Abella J., para. 28). There is concern that others are not as knowledgeable about all the factors that need to be taken into account when a Crown decides to prosecute.
Thus if prosecutors are concerned about civil liability, it may affect how prosecutors make decisions; prosecutors are, after all, meant to act in the public interest and in protecting a fair trial.
Justice Côté does not disagree that there are the two policy concerns that tend to militate against qualifying prosecutorial immunity: the risk of “defensive lawyering by prosecutors” and diverting prosecutors from doing their jobs (Clark, Côté J., paras. 118 and 119).
There are, of course, already two exceptions to absolute prosecutorial immunity, both relating to accused. The first is where an accused alleges malicious prosecution and the second relates to non-disclosure.
As to the first, malicious prosecution, accused must be able to assert a private right of action against a Crown when the prosecutor with an improper motive or purpose and there were not reasonable and probable grounds for the charge. Accused must be able to “seek a remedy for unconstitutional deprivations of liberty and security of the person”. (Clark, Abella J., para. 35, summarizing Lamer J.’s comments in Nelles ) In Nelles, Lamer J. said, “The fundamental flaw with an absolute immunity for prosecutors is that the wrongdoer cannot be held accountable by the victim through the legal process.”
The second hinges on the Crown’s duty of disclosure in a criminal proceeding; in Henry, the Crown failed to disclose exculpatory evidence. There was no disagreement that the accused should be able to vindicate his rights under the Canadian Charter and Rights and Freedoms; the issue was the threshold to be satisfied (Clark, Abella J., para. 38). Justice Côté links her analysis to Henry: as in that case, here it is the emphasis on the threshold that saves too expansive an exception to prosecutorial immunity.
Henry had been charged with 17 counts of sexual assault, of which 10 proceeded to trial. He represented himself and requested disclosure of a number of documents, which he never received. He was sentenced to
an indefinite period of imprisonment and actually served 27 years before the British Columbia Court of Appeal quashed all convictions. It is of interest, perhaps, that in Henry, Moldaver J. (who joined with the majority in Clark in refusing to allow a further exception to prosecutorial immunity in the form of misfeasance of public office) provided considerable detail about Henry’s situation. He recognized a cause of action “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.” (Henry, Moldaver J., para. 31)
Justice Moldaver limited the application of this new qualification, non-disclosure, by limiting his holding in two ways: “[i]n the context of Mr. Henry’s claims” and because he has established a high threshold (Henry, Moldaver J., para. 31). He cautions, “we should be wary of using Mr. Henry’s exceptional case to justify a substantial expansion of prosecutorial liability. It is only by keeping liability within strict bounds that we can ensure a reasonable balance between remedying serious rights violations and maintaining the efficient operation of our public prosecution system” (Henry, Moldaver J., para. 81).
The crucial element of these two deviations from an absolute prosecutorial immunity is that they permit accused to vindicate their rights. They may be said to contribute to the balancing of the relationship between prosecutors and accused, as opposed to diminishing it. This does not mean that there is not a relationship between the police and prosecutors, there is, but for Abella J., it does not attract the kind of obligations prosecutors have to accused. Prosecutors exercise a check on the power of the police, but both are independent of the other; their relationship can be described as one of “mutual independence”. Accordingly, in Abella J.’s view,
Making prosecutors liable to police officers for misfeasance is fundamentally incompatible with this “mutually independent” relationship. 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…. Such a relationship of legal accountability between the prosecutor and the police is irreconcilable with their critically “separate and distinct” roles…. (Clark, Abella J., para. 47; citations omitted)
Justice Abella, citing other cases, and the courts below had expressed concern about the risks if the prosecutors become too close to the police or if the relationship, instead of being cooperative, becomes adversarial; police could become litigants in the process. These are reasons for not extending the exemptions to prosecutorial immunity to negligence and similar concerns apply to misfeasance:
These policy concerns are no less critical when considering whether prosecutorial immunity should yield to misfeasance claims against a prosecutor by investigating police officers. Being at risk of civil liability for reputational harm to police officers means considering irrelevant considerations and risking independence and objectivity, the core of the prosecutor’s role. Police suing prosecutors for decisions they make in the course of a criminal prosecution is a recipe for putting prosecutors in conflict with their duty to protect the integrity of the process and the rights of the accused. (Clark, Abella J., para. 53)
To do otherwise, would, for example, require the trial Crown here to take the police’s objectives into account in deciding how to proceed and “[t]he accused’s constitutionally protected rights and the public interest in the efficient administration of justice could potentially be made to defer to prosecutorial anxiety over whether police interests have been sufficiently taken into account” (Clark, Abella J., para. 54). There is a risk not only of real conflict, but also of potential conflict, with a perception that the police were influencing prosecutions through the use of private law. This is very different from when exceptions to prosecutorial immunity ensure that prosecutors are not “shielded from liability to the accused” (Clark, Abella J., para. 57; emphasis in original).
Justice Côté addresses this concern by distinguishing between “tactical” and “core” prosecutorial decisions, with the former “falling outside the core of prosecutorial discretion” (Clark, Côté J., para. 126). Core decisions relate to pressing charges, entering a stay, entering into a plea bargain and similar decisions that attract deference “unless they amount to an abuse of process or malicious conduct”. She explains that when prosecutors deal with allegations of police brutality, their decisions “do not pertain to the nature and extent of the prosecution”; here the trial Crown and the Senior Crown decided not to investigate allegations against the police, but to accept Singh’s allegations; and the appeal Crown failed to be fully transparent in the Court of Appeal, thus leading to the adverse findings against the police by the trial and appeal courts. The claims brought by the police do not raise the prosecution’s decision to stay Maharaj’s charges, which did not affect the police (Clark, Côté J., para. 129).
In contrast to Abella J.’s view that recognizing misfeasance in public office in relation to the prosecutors’ conduct weakens the significance of prosecutors’ independence and public confidence in the justice system, Côté J. contends “refusing to apply the immunity and thereby increasing accountability actually strengthen the bonds of trust between a public office and members of the public. Public confidence in the office of prosecutor is better served when prosecutors are made accountable than when they are absolved from any misconduct.” (Clark, Côté J., para. 150)
Prosecutors do hold high office, but so do police and holding them to account does not prevent their carrying out their duties “faithfully”. Furthermore, if prosecutors’ conduct leads to damage to police reputation, this undermines public confidence in the police. Among other things, accused are able to rely on findings in police records to undermine police testimony (it’s important to note that here, there were no findings against the police, although the police officers involved apparently face something similar because the condemnation in the courts has been raised in other cases).
Taking her cue from Moldaver J. in Henry, Côté J. acknowledged that “[l]iability for misfeasance in public office must thus be narrowly circumscribed in order to prevent both a chilling effect on public decision-making and the diversion of public officers from their duties” (Clark, Côté J., para. 161).
There is no question that the rights of the accused are fundamental in the criminal justice system. The Charter explicitly guarantees those rights, such as the guarantee of a fair trial. And the prosecutor is in turn fundamental to ensuring a fair trial. That is why non-disclosure has been recognized as a qualification of absolute prosecutorial immunity, permitting an accused to obtain damages for a prosecutor’s deliberate failure to disclose what should have been disclosed. It is not sufficient that the when disclosure is subsequently made, the accused might be able to obtain a new trial.
A fair process, though, isn’t all about the accused. It matters in society that victims believe that the process is fair, too, although they may not have particular rights allowing them to bring claims against the prosecutor whose conduct has resulted in an unfair, even “wrong”, result. Public opinion may bring the complainant’s reality to the fore, however, even when the legal system fails to do so (see the Barton (ABQB) case in which the prosecutor introduced the vaginal tissue of Cindy Gladue into evidence, as just one of many examples, particularly in sexual assault cases).
Susan Nelles, a nurse at Sick Kids Hospital, was charged with the murders of four babies. She had exercised her right not to speak to the police without a lawyer present, following the “advice” of her roommate, a law student. And, although there were other reasons, this was one reason the police suspected her. The charges were dismissed at the preliminary inquiry. Nelles was a sympathetic accused and provided exactly the right person to justify a breach in the absolute immunity enjoyed by prosecutors to allow claims for malicious prosecution. (I note that the Supreme Court in Nelles referred in the briefest terms to Nelles’ circumstances; Thorson J.A., for the Court of Appeal, noted,
For a better appreciation of the issues raised by this appeal it is necessary to sketch briefly the background facts leading to the bringing of this action, and the circumstances giving rise to the order made by Fitzpatrick J. Because, however, of the extraordinary and indeed unprecedented media coverage that has accompanied from the outset the events underlying this action as well as the proceedings before the Royal Commission, presided over by Mr. Justice Samuel G. M. Grange, which was appointed in April of 1983 to inquire into and report upon those same events, it is probably unnecessary in these reasons to do more than highlight, in essentially point form manner, the relevant background facts.)
Ivan Henry, too, was a sympathetic person to serve as the plaintiff in a lawsuit against the Attorney General of British Columbia. The photo array showed to one sexual assault complainant could not have been more biased against him and the case rested on in-court identification by complainants. He represented himself and the Crown failed to provide him with documents and evidence that might have made a difference in the outcome. Henry was also exactly the right person to justify a second crack in prosecutorial immunity.
The police are not such sympathetic plaintiffs. We are currently in a time when police brutality and use of deadly force in highly questionable circumstances is a dominant theme in the public conversation. This is the case not only in the United States, but also in Canada. In both countries, oppressive police practices in relation to minority accused — and those who never become accused — have led to cries to defund the police (or at least divert funding to other agencies) and reduce legal protections they enjoy. It is not a time when police are being defended or their rights are being championed: the failure to hold police to account has gone on too long. Clark offers a different dynamic, where there is doubt about police brutality, but the sceptic may wonder whether assumptions about the experiences and views of the police so often in the news have seeped into the underlying comments and decisions of prosecutors and judges in Singh and Clark, as well as in relation to the Crown decision to stay the charges against Maharaj.
The Crown does not have an obligation to explain why they make particular decisions or call particular evidence or not. This is how it should be for all the reasons Abella J. articulates, and with which Côté J. agrees. But in this case the evidence the Crown did not call went to the heart of Singh’s request for a stay, supported by the decision to stay proceedings against Maharaj, in both cases because of the alleged brutal assaults by the police. Justice Thorburn, the stay and sentencing judge, and Blair J.A. in the Court of Appeal seemed doubtful about the truth of the claims because neither accused was considered truthful. Yet they strenuously condemned the police officers for their conduct, although Thorburn J. did say that the police misconduct against Singh was “far less” than in other cases in which sentencing was reduced and therefore a reduction below the mandatory minimum for armed robbery was not warranted (sentencing decision, para. 65). Nevertheless, she did reduce the global sentence by a year,
reflect[ing] my very deep concern and condemnation of those who, being selected to uphold the law and preserve justice, assault those entrusted to their care and control. This reduction in Singh’s sentence does not and should not serve as a substitute for further investigation into and punishment of those involved in this reprehensible conduct. (Sentencing decision, para. 64)
The reputation of the police is also crucial to the legal system. They must be able to trust the prosecution even though it is not their job to tell the prosecution how to conduct the case. The prosecution must also trust the police, given their reliance on the evidence the police produce. There have been important cases involving the failure of the police to act honestly or carefully (as Abella J. discussed in the majority decision), but that does not change the need for the prosecutor to act appropriately. If we stand back from today’s censure and sometimes vilification of the police, we can see that there may well be times when the prosecutor’s failure to be forthright about the police in circumstances such as in Clark affect the outcome of trials.
Clark illustrates how improper conduct by prosecutors against the police can result in suppression of relevant evidence in criminal proceedings and in damning the reputation of the police, just as prosecutorial misconduct affected Nelles and Henry. The trial judge (Stinson J.) held “Crown Attorneys do not have absolute immunity from civil claims other than claims for malicious prosecution and intentional non-disclosure” (SCJ, misfeasance decision, para. 152) and the Court of Appeal held “Crown attorneys are not immune from claims of liability for misfeasance in public office” (CA’s misfeasance decision, para. 114), even though they both quoted from the CA’s stay decision regarding the officers’ conduct (SCJ, misfeasance decision, para. 19; CA’s misfeasance decision, para. 27) However, Clark, it should be remembered, is not about whether the police were the subject of deliberate prosecutorial misconduct, in the form of misfeasance, but only about whether they had the opportunity to make their case.