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Can the Police sue Crown Attorneys?
May 10, 2021
Can the Police sue Crown Attorneys?

The Supreme Court of Canada says NO!

In a recent case, Ontario (Attorney General) v. Clark, the court ruled that the police cannot sue Crown attorneys for misfeasance of public office. The case involved three police officers who arrested two men in connection with a complaint of armed robbery and forcible confinement. The accused claimed that the officers assaulted them during their arrests. The officers denied their allegations and provided evidence to the Crown supporting their position.

The evidence provided by the police was not revealed to the court by the Crown. As a result, the police officers started an action against the Attorney General for Ontario, alleging that the Crown attorneys did not put forward available evidence that contradicted the assault claims of the accused. The police officers also claimed that the Crown’s actions and omissions caused irreparable harm to their reputations. Lastly, the police officers alleged negligence and misfeasance in public office. 

The Supreme Court stated that allowing police to sue Crown attorneys would give the appearance of a conflict of interest that would prejudice the administration of justice. The Court noted that the police and the Crown are mutually independent and have important roles to play. If we let police sue Crown attorneys then this would suggest that the police can in effect police prosecutions through the back door, by civil suits.

There are a variety of statutory and common law principles and rules that immunize the Crown and its agents from liability in civil proceedings. Crown attorneys have a duty to pursue prosecutions based solely on whether there is a reasonable prospect of conviction and whether that prosecution is in the public interest. However, there are two exceptions to this immunity. The first exception is where the Crown acted with malice in the context of a malicious prosecution case. The second exception is where the Crown has intentionally withheld disclosure to the accused in a criminal case. 

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