AG of Ontario v Jamie Clark: The Scope of Crown Immunity to Reach the SCC
“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,” stated the Ontario Court of Appeal (“ONCA”) in Clark v Ontario (Attorney General),  ONCA 311 [Clark]. “It may well be that, in this case, the actions of the trial Crown had serious consequences for the officers; however, this is no reason to open the floodgates.”
It’s a seminal quote in a judgement that advocates two central positions: first, police officers should not receive any greater remedy in negligence cases than ordinary individuals, and second, remedies for alleged misconduct by Crown attorneys should remain narrow. Although the Court denied that a duty of care existed, citing the oft-used justification of “opening the floodgates,” the Supreme Court of Canada (“SCC”) will revisit these central issues, following a leave to appeal of the case in November 2019.
The SCC appeal will resurface some of the following questions: Do Crown attorneys owe a prima facie duty of care to police officers? What if the police officers claim the Crown attorneys’ alleged actions caused them “emotional trauma” and “irreparable damage to their reputations” (Clark, para 5)? Are Crown attorneys liable to people who are not subjects of the criminal trial?
This case comment explores the Clark case and how the SCC could treat the legal issues the case created.
In February 2009, police arrested two men—Randy Maharaj and Neil Singh—in connection to an armed robbery. As part of the arrest, the officers interviewed both men, and the two men gave videotaped statements. While Mr. Maharaj confessed both of their involvements in the robbery, Mr. Singh gave a false exculpatory statement (Clark, para 14).
Both men claimed the officers had assaulted them during their arrests. This included a claim that police had “kicked on the side of the head and beaten” Mr. Maharaj (Clark, para 16). The officers—Jamie Clark, Donald Belander, and Steven Watts—denied these claims with exculpatory evidence. Due to the assault claim, the Court stayed Mr. Marahaj’s charges. Medical evidence indicated that he had sustained an acute rib fracture. However, the doctor who provided that medical evidence did not review the videotaped statement in which Mr. Maharaj moved and lifted his arms without apparent trouble. Furthermore, Mr. Maharaj’s medical records from Maplehurst Detention Centre, which was held pending trial, did not indicate any rib injury. Without further investigation, the Crown attorneys agreed Mr. Maharaj’s videotaped statement was inadmissible “as it could not be proven to be voluntary in light of the injuries he purportedly sustained during arrest” (Clark, para 20).
Also, as a result of the assault claim, Mr. Singh’s conviction was set aside and a stay begun. Following his conviction of armed robbery and forcible confinement, the Crown Law Office notified the Toronto Police regarding their concern about the officers’ conduct. The Toronto Police made an investigation into the officers but could not substantiate the claims of excessive force.
Mr. Singh appealed his conviction and during the appeal, one of the Crown attorneys on the case, Sheila Cressman, failed to call any evidence to challenge the assault allegations against the officers. She assured the officers they would be called as witnesses, but later told them their evidence would not be needed. The lead Crown attorney “took no further steps to investigate [Ms. Cressman’s conduct], did nothing to repair the damage to the officers’ reputation, and did not file a fresh evidence application on appeal” (Clark, para 26). The Court of Appeal eventually set aside the convictions and entered a stay.
The subject of this particular appeal, however, is the police officers’ subsequent claim that that the Crown attorneys on the case failed to pursue and introduce evidence that adequately challenged the allegations of assault claims. They claimed that in failing to do so, the attorneys caused long-term harm to their reputations and wellbeing. The police officers then brought two major claims against the Attorney General for negligence and for misfeasance in public office. When the Attorney General brought a motion to strike the officers’ claims, the motions judge struck the negligence claim while allowing the misfeasance claim. The parties appealed to the ONCA.
The ONCA Decision
While the ONCA found the misfeasance claim as adequate and able to continue, the central issue occupying the ONCA decision was the negligence claim, which the Attorney General brought a motion to strike on the basis that the pleading “discloses no reasonable cause of action or defence” pursuant to the Rules of Civil Procedure (Clark, para 52). The legal test under this rule is whether the lack of a reasonable cause of action is “plain and obvious” (Hunt v Carey Canada Inc,  2 SCR 959). In assessing this threshold, both the ONCA judges and the motions judge referred substantially to the principle of Crown immunity, the well-established precedent that there can be no claim for negligence against the Crown at common law (Clark, para 53).
The motions judge refused to, in the face of the weighty jurisprudence on Crown immunity, “privilege the interests of police officers over ordinary citizens by recognizing their claim in negligence against the Crown” (Clark, para 55). While the motions judge argued that the decision in Smith v Her Majesty the Queen in right of Ontario et al.,  ONSC 7222, applied and the “body of law about common law immunity does not focus on lawsuits by the police against Crown attorneys” (Smith, para 136), the judge still based his findings on the Anns test for determining whether a duty of care from the Crown to the officers existed (Anns v Merton London Borough Council,  UKHL 4; Clark, para 59).
The two-stage test involves first establishing a sufficient relationship based on factors of foreseeable harm and proximity (Cooper v Hobart, 2001 SCC 79 [Cooper], para 41). Secondly, it requires a consideration of whether the Court should recognize a new duty of care relationship (Cooper, para 42). In this case, the motions judge decided that no duty of care existed between Crown attorneys and police officers in this specific context of Charter motions, but one may exist otherwise. He also concluded that public policy considerations would defeat a duty of care.
The ONCA upheld the motion judge’s decision but on different grounds. Firstly, the Court emphasized that the existing jurisprudence strengthening the principle of Crown immunity and was “not persuaded that this line of authority can be avoided, simply by substituting one class of claimants (former accused persons) for another (police officers)” (Clark, para 66), thereby meeting the “plain and obvious” threshold under the motion to strike. In emphatic language, the Court found that this alone should have decided the matter and erased the possibility of a duty existing.
The Court also found that the motions judge erred in his reliance on a narrow approach to Crown immunity and that “existing case law was not dispositive of the tenability of the plaintiffs’ claim in negligence” (Clark, para 68). The decision then traces the findings of the Court in Henry v British Columbia,  SCC 24 [Henry], which explains the significance of Crown immunity. In Henry, the SCC “remains steadfast in its rejection of negligence-based claims against Crown attorneys” (Clark, para 85).
Here, the Court opines on the applicability of this reasoning to Clark and the way in which “all of the policy considerations that informed the [Crown immunity] trilogy and Henry are operative in this case” (Clark, para 89). Importantly, Henry states that lowering the threshold of protection from negligence claims for Crown attorneys could create a distortion of principled decision-making by the Crown since the concern about potential negligence claims against them could detract from their responsibility to their client and, ultimately, to the public interest (Clark, para 88).
The Upcoming SCC Decision
This particular area of the Court’s reasoning adds further weight to the already strong jurisprudence that constructs the Crown immunity principles. It seems to, once again, tighten the availability of effective remedies for negligence by the Crown. Where there is a thin line between protecting the ability for Crown attorneys to adequately fulfil their roles and the existence of avenues to hold them to account for any misconduct, it seems the ONCA is willing to risk the latter in order to preserve the former.
Reconsidering the legal question and walking the same line, it will be interesting to see where the SCC falls—in the pool of past precedent on Crown immunity or in a recognition that, perhaps, our laws require certain avenues to identify Crown misconduct. If the SCC followed in the direction of past Crown immunity case law, a concern may be that there remains an inability for those impacted by Crown misconduct to ever pursue litigation.
The Court’s view of Crown immunity sets up an authoritative wall that not only blocks any finding of a duty of care entirely but also determines a lack of duty in lieu of the standard Anns test. The reasoning is significant because Crown attorneys should not be distracted from their responsibility to act in public interest due to the fear of successful claims, but where does that leave individuals who have suffered as a result of Crown negligence, if it were to occur?
On the other hand, it may also be necessary for the SCC to uphold the ONCA’s decision due to the implications the decision may have in regarding a police officers’ remedies in negligence claims being greater than everyone else’s. Given the prior trajectory of the SCC, the Justices may find that it is more important to maintain an even playing field when defining the scope of Crown immunity as it applies to police officers versus everyone else.