



COURT OF APPEAL FOR ONTARIO

CITATION: Smith v.
    Ontario (Attorney General), 2019 ONCA 651

DATE: 20190812

DOCKET: C65621 &
    C65624

Simmons, Tulloch and
    Brown JJ.A.

BETWEEN

Alan Dale Smith

Plaintiff

and

The Attorney General of
    Ontario, Michael Hill, and John Scott

Defendants (Respondents)

The Durham Regional
    Police Services Board, Leon Lynch, John Johnson

Allan, Cindi Bradley,
    Daniel Anthony Denyer, Jim Burrows, Jeff

Kennedy, David Kimmerly,
    Dianne Jennings, The York Regional Police

Services Board, and
    YRP #1

Defendants (Appellants)

Her Majesty the Queen
    in Right of Ontario, The Ontario Provincial

Police,
    OPP #1, and OPP #2

Defendants

C. Kirk Boggs and Stuart Zacharias, for the appellants The
    Durham Regional Police Services Board, Leon Lynch, John Johnson Allan, Cindi
    Bradley, Daniel Anthony Denyer, Jim Burrows, Jeff Kennedy, David Kimmerly and
    Dianne Jennings

Kevin McGivney and John Hunter, for the appellants The
    York Regional Police Services Board and YRP #1

Sunil Mathai and Heather Burnett, for the respondents
    The Attorney General of Ontario, Michael Hill and John Scott

Heard: February 26, 2019

On appeal from the order of the
    Divisional Court (Regional Senior Justice Bonnie R. Warkentin, Justices Katherine
    E. Swinton and Carolyn J. Horkins), dated February 21, 2018, with reasons
    reported at 2018 ONSC 993, 141 O.R. (3d) 309, allowing an appeal from the order
    of Justice Wendy M. Matheson of the Superior Court of Justice, dated November 29,
    2016, with reasons reported at 2016 ONSC 7222, 368 C.R.R. (2d) 322.

Tulloch J.A.:

I.

INTRODUCTION

[1]

This appeal arises from a Mr. Big operation that led to the plaintiff
    being charged with first degree murder. When the plaintiff was acquitted, he
    sued the police and Crown Attorneys involved in the investigation for negligent
    investigation, unlawful arrest and imprisonment, and intentional infliction of
    mental suffering. The police crossclaimed against the Crown Attorneys for
    negligent legal advice and breach of retainer. The motions judge struck the
    plaintiffs claim against the Crown Attorneys on the basis that it was barred
    by common law prosecutorial immunity, but she allowed most of the crossclaim to
    proceed. The Divisional Court struck the crossclaim. The issue is whether it is
    plain and obvious that this crossclaim cannot succeed.

[2]

I would dismiss the appeal on two separate and independent grounds.
    First, I conclude that it is plain and obvious that prosecutorial immunity bars
    the crossclaim. Imposing liability on Crown Attorneys for negligent advice provided
    to police in the course of an investigation and breach of retainer
[1]
would engage the twin policy concerns of diversion from public duties and a chilling
    effect leading to defensive lawyering that give rise to prosecutorial immunity.
    There is no basis upon which to treat claims brought by police differently from
    claims brought by individual citizens, nor is there a basis upon which to
    differentiate between claims arising from the pre-charge stage versus the
    post-charge stage. As an additional basis to the application of these
    well-settled principles, I would note that in the circumstances of this case
    the chilling effect policy concern includes the damage that imposing liability
    would cause to the relationship between Crown Attorneys and the police and the
    legal principles that underlie this relationship.

[3]

Second, I conclude that it is plain and obvious that the crossclaim does
    not disclose a reasonable cause of action, because Crown Attorneys do not owe
    the police a duty of care in respect of the legal advice they provide to them.

[4]

On either ground, this crossclaim fails.

II.

FACTS

A.

The
    Plaintiffs Claim

[5]

The plaintiff, Alan Dale Smith,
    sued the Durham Regional Police Services Board and several officers (the
    Durham appellants), the York Regional Police Services Board and one York
    officer (the York appellants), and the Attorney General of Ontario and Crown
    Attorneys Michael Hill and John Scott (the respondents) for the torts of
    negligent investigation, unlawful arrest and imprisonment, and intentional
    infliction of mental distress. The plaintiff pled the following facts.

[6]

The plaintiffs neighbour, Beverly
    Smith, was murdered in 1974. Initial police investigations were fruitless. The
    police reopened the investigation in 2007 as a cold case. The plaintiffs
    former spouse gave a statement implicating the plaintiff, and the plaintiff was
    arrested and charged with the murder in March 2008. On July 31, 2008, the
    respondent Crown Attorney John Scott withdrew the charges on the basis that
    there was no reasonable prospect of conviction. However, Scott urged the police
    to continue the investigation using wiretaps.

[7]

The Durham Regional Police Service
    (the DRPS) then planned an undercover investigation that developed into a
    year-long Mr. Big operation.
[2]
Agents of the respondent Attorney General supervised the investigation. Scott
    and the respondent Crown Attorney Michael Hill approved and submitted
    applications for interception warrants under Part VI of the
Criminal Code
that the police used to record the Mr. Big scenarios. The DRPS drew the
    plaintiff into low-level crime by rewarding him financially, and gradually
    involved him in more serious feigned crime. Ultimately, the police involved the
    plaintiff in a fake murder and body dump scenario and told him to give them
    information they could use against him to keep him in line. As a result, the
    plaintiff gave a confession to murdering Smith. The confession was at odds with
    known evidence. Still, DRPS officers arrested the plaintiff and charged him
    with Smiths murder on December 10, 2009. At this point, Hill and Scott ceased
    their involvement in the case. New Crown Attorneys assumed carriage of the
    prosecution and took the matter to trial. The plaintiff does not make any claim
    against the new Crown Attorneys.

[8]

The plaintiff was incarcerated
    following his arrest for nearly five years. He was only released on bail in
    June 2014 after the trial judge excluded the alleged confessions part way
    through the trial. The trial judge subsequently acquitted the plaintiff after
    the trial Crown Attorneys elected to call no evidence.

[9]

The plaintiff did not plead
    malicious prosecution or intentional misuse of public office against the
    respondents.

B.

The Durham
    Appellants Defence

[10]

The Durham appellants pled that
    the DRPS officers involved in the investigation acted in good faith and in
    accordance with the standard of care. According to the statement of defence,
    the officers relied in good faith on the legal advice and guidance from the Crown
    Attorneys Office in proceeding with the investigation and concluding that they
    had reasonable and probable grounds to charge the plaintiff. In the event that
    the Crown provided improper or inadequate advice, the Durham appellants pled
    that it was not foreseeable to them that the investigation would violate the
    plaintiffs rights.

C.

The Durham
    Appellants Crossclaim

[11]

The Durham appellants also
    crossclaimed against the respondents for indemnity and contribution for both
    negligent advice and breach of retainer. They pled that they consulted the
    Crown Attorneys Office and that it was involved throughout the Mr. Big operation
    and provided legal advice on the investigation. The Durham appellants had
    regular contact with the Crown Attorneys Office during the Crowns preparation
    of applications for interception warrants under Part VI of the
Criminal Code
.
    The Crown Attorneys Office never advised that any of the investigative
    techniques would pose an impediment to a successful prosecution and
    specifically approved of the body dump scenario. The Durham appellants relied
    on this legal advice in good faith and would not have proceeded as they did had
    the Crown Attorneys Office advised them otherwise.

[12]

Furthermore, the Durham appellants
    pled that they would not have charged the plaintiff for murder but for the
    Crown Attorneys legal advice. The Crown Attorney for Durham Region advised the
    DRPS that they could proceed to arrest the plaintiff following the confession.
    Senior representatives of the Ministry of the Attorney General confirmed this
    advice at a meeting in Toronto. The Durham appellants went ahead to charge the
    plaintiff in good faith reliance on this advice.

[13]

The Durham appellants did not
    plead that the respondents acted maliciously or in bad faith or intentionally
    interfered with an obligation under the
Canadian Charter of Rights and
    Freedoms
.

III.

THE DECISIONS BELOW

A.

MOTIONS JUDGES
    RULING

[14]

The respondents moved under r. 21
    of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, to strike out
    both the plaintiffs claims against them and the Durham appellants crossclaim.
    The primary basis for the respondents motion was that common law prosecutorial
    immunity barred both the plaintiffs claims and the crossclaim. The respondents
    did not seek to strike out any portion of the Durham appellants statement of
    defence. Nor did the respondents object to the Durham appellants waiver of privilege
    and reliance on legal advice from the respondents as a defence to the
    plaintiffs claim. The Durham appellants and the York appellants supported the
    plaintiffs resistance to this motion. The York appellants also supported the
    Durham appellants resistance to the motion to strike the crossclaim and
    indicated their intention to bring a similar crossclaim.

[15]

In reasons reported at 2016 ONSC
    7222, 368 C.R.R. (2d) 322 (Motions Judges Reasons), the motions judge
    granted the motion to strike out the plaintiffs claims against the respondents
    and the Durham appellants crossclaim for contribution, but allowed their
    crossclaims for indemnity to proceed subject to amending their pleading in
    certain respects.

[16]

The motions judge struck out the
    plaintiffs claim against the respondents on the basis that it was barred by
    common law prosecutorial immunity. The motions judge accepted that malicious
    prosecution was the sole exception to the absolute immunity that Crown
    Attorneys enjoy at common law. She also noted that the Supreme Court had
    rejected a narrow definition of prosecutorial discretion in
R. v. Anderson
,
    2014 SCC 41, [2014] 2 S.C.R. 167. The motions judge concluded that the
    exception to prosecutorial immunity for relief under s. 24(1) of the
Charter
that the Supreme Court recognized in
Henry v. British Columbia (Attorney
    General)
, 2015 SCC 24, [2015] 2 S.C.R. 214,

did not apply. The
    plaintiff did not make
Charter
claims against Scott or Hill and the only
    claim against the Attorney General was based on the Attorney Generals
    liability for the actions of Scott or Hill. As the plaintiff did not plead
    malice, it was plain and obvious that the plaintiffs claims could not succeed.

[17]

Significantly, the motions judge
    rejected two arguments that were made by the plaintiff and supported by the appellants.
    First, the motions judge dismissed the argument that prosecutorial immunity
    only applies to the post-charge stage or to matters within core prosecutorial
    discretion. She concluded that this was the same type of functional approach
    that the Supreme Court had rejected in
Nelles v. Ontario
, [1989] 2
    S.C.R. 170. Second, the motions judge declined to accept the argument that the
    Supreme Courts decision in
Hill v. Hamilton-Wentworth Regional Police
    Services Board
, 2007 SCC 41, [2007] 3 S.C.R. 129, supported permitting
    claims against Crown Attorneys for negligent investigation. She concluded that
Hill
did not support this argument because the police do not enjoy the recognized
    immunity that Crown Attorneys possess.

[18]

However, the motions judge
    declined to strike out the crossclaim for indemnity. She distinguished
Nelles
and the subsequent case law on prosecutorial immunity on the basis that it
    focused on the rights of individual citizens, not the rights of the police. At
    that point in time, no case had considered whether prosecutorial immunity
    barred a claim by police against Crown Attorneys.
[3]
Accordingly, while she recognized that prosecutorial immunity could apply to
    the crossclaim, she found that it was not plain and obvious that it would
    apply.

[19]

The motions judge also found that
    it was not plain and obvious that the respondents did not owe the appellants a
    duty of care when providing legal advice. She concluded that a more
    comprehensive factual record addressing, in particular, the potential impact of
    a tort claim for negligent legal advice on the important relationship between
    the police and Crown Attorneys was required in order to properly consider this
    novel claim.

[20]

As a result, the motions judge
    allowed the crossclaim for indemnity for negligent advice to proceed. She
    struck the crossclaim for contribution as liability to the plaintiff is a
    prerequisite for contribution, and she had struck all the plaintiffs claims
    against the respondents. She also struck the crossclaim for breach of retainer
    on the basis that the pleadings lacked the necessary elements of the breach of
    retainer cause of action, but gave the Durham appellants leave to amend. The
    Durham appellants subsequently amended their breach of retainer pleadings.

B.

Divisional
    Court Ruling

[21]

In reasons reported at 2018 ONSC
    993, 141 O.R. (3d) 309 (Divisional Court Reasons), the Divisional Court
    allowed the respondents appeal and struck the crossclaim in its entirety. The
    court held that it was plain and obvious that prosecutorial immunity would bar
    the crossclaim and noted that there was no appellate case that supported
    holding Crown Attorneys liable for negligent legal advice to police in the
    course of an investigation.

[22]

First, the Divisional Court
    concluded that the crossclaim would fail because the appellants did not plead
    malice or intentional wrongdoing but only negligence. The court stressed that
    the Supreme Court has required a high threshold of either malice or intentional
    wrongdoing to establish an exception to prosecutorial immunity. Similarly, the
    Court of Appeal for Ontario held in
Thompson v. Ontario
(1998), 113
    O.A.C. 82 (C.A.), that there is no claim against Crown Attorneys for negligent
    investigation. The Divisional Court saw no reason to apply a lower liability
    threshold when the police, rather than a member of the public, claim against a
    Crown Attorney in negligence.

[23]

Second, the Divisional Court found
    that the policy considerations the Supreme Court outlined in
Nelles
and
Henry
weighed in favour of applying prosecutorial immunity in this case. The court
    stressed the policy concerns about diverting Crown Attorneys attention from
    their public duties and causing a chilling effect that would lead Crown
    Attorneys to engage in defensive lawyering. The court emphasized that there was
    no countervailing policy concern of eroding public confidence in the
    administration of justice because the respondents did not plead deliberate
    misuse of public office.

[24]

Third, the Divisional Court
    rejected the appellants argument that immunity should not apply to actions
    taken by Crown Attorneys during an investigation prior to the laying of
    charges. The court characterized this argument as founded on the functional
    approach to immunity that the Supreme Court rejected in
Nelles
and
Henry
.
    The court explained that Hill and Scott assisted with the investigation in the
    exercise of the office of Crown Attorney, and stressed that Crown Attorneys and
    police remained constitutionally independent. The court also noted that some of
    the actions Hill and Scott engaged in, such as giving advice with respect to
    criminal charges or assisting in obtaining warrants under Part VI of the
Criminal
    Code
, did lie within the core of prosecutorial discretion. Prosecutorial
    immunity would protect this conduct even under the functional approach that the
    appellants argued for.

[25]

The Divisional Court declined to
    address the issue of duty of care as a result of its conclusion on
    prosecutorial immunity.

[26]

The Divisional Court did not
    appear to analyze the breach of retainer pleading in its reasons and instead
    only analyzed the pleading of negligent legal advice. However, the order of the
    Divisional Court dismissed the Durham appellants crossclaim against the
    respondents in its entirety, including the pleading of breach of retainer.

IV.

THE DECISION IN
CLARK
v
.
    ONTARIO (ATTORNEY GENERAL
)

[27]

Nearly two months after the
    hearing of the present appeal, this court released its decision in
Clark v.
    Ontario (Attorney General)
, 2019 ONCA 311.

[28]

In
Clark
, three police
    officers sued the Attorney General of Ontario for negligence and misfeasance in
    public office after the Court of Appeal upheld a trial courts finding that the
    officers had assaulted two accused persons. The police officers alleged that
    the trial and appeal Crown Attorneys failed to pursue and put before the court
    evidence that contradicted the assault claims, a failure that caused
    irreparable harm to the officers reputations. The Attorney General of Ontario
    moved to strike the claims under r. 21 of the
Rules of Civil Procedure
.

[29]

In
    reasons reported at 2017 ONSC 3683, the motions judge in
Clark
declined
    to strike the officers claim in negligence on the basis of common law
    prosecutorial immunity, concluding that the case law existing at that time was
    not dispositive of the issue. He then went on to consider whether it would be
    appropriate to impose a new private law duty of care in the circumstances. The motions
    judge concluded that it was not plain and obvious that there would be no
prima
    facie
duty of care owed by trial Crown Attorneys to police officers to take
    reasonable care in the course of investigating and defending
Charter
motions alleging serious misconduct by police officers, reasoning that [s]uch
    a proximate relationship could arise from the fact that significant interests
    of police officers are engaged when they are subject to misconduct allegations
    on
Charter
motions that only Crown Attorneys are in a position to defend
    against: at para. 104. However, despite his finding that a relationship of
    proximity existed, at stage two of the
Anns/Cooper
test,
[4]
the motions judge concluded that there are valid and important policy reasons
    not to expand the civil liability of Crown Attorneys in a case such as this: at
    para. 137. Accordingly, he declined to impose a private law duty of care in
    favour of police officers as against Crown Attorneys in relation to the conduct
    of prosecutions, and consequently struck the officers claim in negligence.

[30]

The motions judge allowed the
    claim for the tort of misfeasance in public office to proceed.

[31]

The officers appealed the
    dismissal of their negligence claim to this court, and the Attorney General
    likewise appealed the dismissal of the motion to strike out the misfeasance in
    public office claim.

[32]

This court dismissed the officers
    appeal on the basis that prosecutorial immunity barred their negligence claim.
    The court determined that the existing case law on prosecutorial immunity was
    dispositive and rejected the officers attempt to distinguish that case law as
    applying only to claims by former accused persons as opposed to police
    officers. The court reasoned that holding Crown Attorneys liable to the police
    for negligence would risk both diverting Crown Attorneys from their primary
    duties and encouraging defensive lawyering by Crown Attorneys. Accordingly, it
    was plain and obvious that the officers claim in negligence would fail.

[33]

Moreover, this court reasoned that,
    because of the considerable correspondence between duty of care policy
    considerations and the scope of Crown immunity, the same conclusion would result
    under a duty of care analysis: at para. 96. Given that [a]ll roads [led] to
    the same destination  the Crown is not liable to police officers in
    negligence, the court declined the Crowns request to delve further into the motions
    judges duty of care analysis and determine if his conclusion that there is a
    relationship of proximity was correct: at para. 96. Such a determination was
    unnecessary in the circumstances of the case before the court and was better
    left to another case when it would be dispositive of an issue.

[34]

However, this court did allow the
    officers claim for misfeasance in public office to proceed. It allowed this
    claim to proceed because it possessed a high liability threshold requiring the
    officers to prove that the Crown Attorneys acted in bad faith or for improper
    motives.

[35]

Clark
differs from the present case in several respects. In
Clark
, the impugned actions of the Crown Attorneys occurred following
    the laying of charges, rather than prior to the laying of charges, as in this
    case. Also, in
Clark
, the officers did not allege that the Crown
    Attorneys provided them negligent legal advice.

[36]

Notwithstanding these differences, as will become apparent in my
    reasons, I find that
Clark
is helpful in relation to the issues of both
    prosecutorial immunity and duty of care.

V.

ANALYSIS

[37]

As
    noted above, this case differs from
Clark
because it focuses on the
    pre-charge stage of a prosecution, and it involves a claim by police against
    Crown Attorneys for negligent legal advice. These differences engage important
    legal principles relating to police independence and the nature of the relationship
    between police and Crown Attorneys. It is necessary to review these principles first,
    so as to situate my analysis relating to prosecutorial immunity and duty of
    care in its proper context.

A.

The Nature
    of Police Independence

[38]

I begin with the nature of police
    independence. As I will explain, this doctrine drew its roots from early
    English and Canadian decisions and has found modern expression in Supreme Court
    decisions and numerous Royal Commission reports. I will also address the three
    principal rationales for the doctrine of police independence, namely the
    original authority of the police, the need to uphold the rule of law, and the
    polices greater closeness to the community.

(1)

The Origins of Police Independence

[39]

The modern doctrine of police independence
    takes its origins from English and Canadian decisions that conceptualized
    police officers as the holders of a civil office of trust who derived their
    authority directly from the law. Three English decisions 
Fisher v. Oldham
    Corporation
, [1930] 2 K.B. 364,
Attorney-General for New South Wales v.
    Perpetual Trustee Co. (Ld.) & Ors.
, [1955] A.C. 457 (P.C.), and
R.
    v. Commissioner of Police of the Metropolis, Ex parte Blackburn
, [1968] 2
    Q.B. 118 (C.A.)  laid the foundations of the doctrine of police independence
    in English law. Canadian courts have echoed much of the reasoning from these
    decisions in developing the doctrine of police independence in this country.

(a)

English Case Law

[40]

Fisher
is often considered the progenitor of the concept of
    police independence in English law: Philip C. Stenning,
Legal Status of the
    Police
, Law Reform Commission of Canada, Study Paper, Criminal Law Series
    (Ottawa: Minister of Supply and Services Canada, 1982),

at p. 113. In
    that case, McCardie J. held that an English municipality was not vicariously
    liable for a police officers tort of false imprisonment. He determined that,
    at common law, police officers are not servants of the municipality, but
    instead are officers of the Crown with a duty to preserve and enforce the law: at
    pp. 370-371. He reasoned that holding the municipality vicariously liable would
    entitle the municipality to demand control over arrest and prosecution of
    offenders. In his view, the prospect of such municipal control over the police
    was a grave and most dangerous constitutional change that would jeopardize
    police independence: at pp. 372-373, 377-378.
Fisher
thus came to form
    the constitutional foundation of police independence from municipalities and
    served as a basis for the subsequent cases that developed the doctrine of
    police independence in English law: Paul Ceyssens,
Legal Aspects of Policing
,
    loose-leaf (2003-Rel. 16), (Saltspring Island, B.C.: Earlscourt, 1994), vol. 1,
    at p. 1-19.

[41]

In
Perpetual Trustee Co.
,
    the Privy Council applied
Fisher
to establish that the police were
    independent not only from municipalities, but also from the Crown itself. The
    case concerned whether a police constable stood in a servant-master
    relationship to the Crown such that the Crown could claim damages for loss of
    services caused by the defendants negligent driving that injured the police
    officer. The Privy Council held that police officers were not servants of the
    Crown and dismissed the Crowns claim. Viscount Simonds endorsed the reasoning
    in
Fisher
and stated, at pp. 489-490:

Their Lordships can now express
    their final opinion upon the case. They repeat that in their view there is a
    fundamental difference between the domestic relation of servant and master and
    that of the holder of a public office and the State which he is said to serve.
    The constable falls within the latter category. His authority is original, not
    delegated, and is exercised at his own discretion by virtue of his office: he
    is a ministerial officer exercising statutory rights independently of contract.
    The essential difference is recognized in the fact that his relationship to the
    Government is not in ordinary parlance described as that of servant and master.

[42]

Finally, in
Blackburn
, Lord
    Denning provided the leading statement of police independence and applied the
    principles developed in the private law cases of
Fisher
and
Perpetual
    Trustee Co.
in a public law context. The case concerned an application to
    judicially review the Commissioner of Polices policy decision to direct police
    officers not to lay charges against clubs breaching gambling laws. Lord Denning
    extracted the following proposition from
Fisher
and
Perpetual Trustee
    Co.
, at pp. 135-136:

But I have no hesitation in
    holding that, like every constable in the land, [the Commissioner of Police]
    should be, and is, independent of the executive. He is not subject to the
    orders of the Secretary of State, save that under the Police Act, 1964, the
    Secretary of State can call upon him to give a report, or to retire in the
    interests of efficiency. I hold it to be the duty of the Commissioner of Police
    of the Metropolis, as it is of every chief constable, to enforce the law of the
    land. He must take steps so to post his men that crimes may be detected; and
    that honest citizens may go about their affairs in peace. He must decide
    whether or not suspected persons are to be prosecuted; and, if need be, bring
    the prosecution or see that it is brought. But in all these things he is not
    the servant of anyone, save of the law itself. No Minister of the Crown can
    tell him that he must, or must not, keep observation on this place or that; or
    that he must, or must not, prosecute this man or that one. Nor can any police
    authority tell him so. The responsibility for law enforcement lies on him. He
    is answerable to the law and to the law alone.

[43]

Lord Denning ultimately dismissed
    the appeal on the basis that the Commissioner of Police had withdrawn the
    impugned policy directive and would exercise his discretion afresh to consider
    whether to lay charges: at pp. 137-138.

(b)

Early Canadian Case Law

[44]

As in England, Canadian courts
    developed the doctrine of police independence in the context of civil
    liability. In one early case,
McCleave v. City of Moncton
(1906), 32
    S.C.R. 106, the Supreme Court held that a municipality was not vicariously
    liable for a police officers unlawful entry and seizure of goods. The court
    reasoned that the law enforcement powers of police officers are derived from
    the law, not from the municipality, and that accordingly police officers cannot
    be considered agents or officers of the municipality: at pp. 108-110.

[45]

Canadian courts were also quick to
    apply the reasoning in
Fisher
,
Perpetual Trustee Co.
, and
Blackburn
to the Canadian context. As Stenning has observed in
Legal Status of the
    Police
, at pp. 113-115, these English cases had a powerful influence on
    Canadian thinking about police independence. For instance, in
Nicholson v.
    Haldimand-Norfolk Regional Police Commissioners
, [1979] 1 S.C.R. 311, the
    Supreme Court relied on
Perpetual Trustee Co.
to hold that a police
    officer is a holder of a public office and exercises an original authority
    confirmed by the police legislation to maintain public order and preserve the
    peace: at pp. 321-322.

[46]

For its part, the Court of Appeal
    for Ontario also twice applied the principles of police independence from the
    English jurisprudence in the labour relations context. First, in
Re A
    Reference Under The Constitutional Questions Act
, [1957] O.R. 28 (C.A.),
    the court held that a municipal council lacks the power to dismiss an officer
    without a hearing. Laidlaw J.A. adopted the passage from
Perpetual Trustee
    Co.
quoted above to justify this conclusion and reasoned that police
    officers owed general public duties, not duties to the municipality: at p. 31.
    Accordingly, he concluded that the police were not servants that the
    municipality could dismiss at pleasure.

[47]

The second case,
Re
    Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto
    Police Association
(1975), 8 O.R. (2d) 65 (C.A.), concerned the validity of
    an arbitration award requiring the Toronto police to staff all patrol cars with
    two officers. Brooke J.A. relied on the courts previous
Reference
decision to distinguish police labour relations from ordinary industrial
    relations because of police officers special responsibility to the public: at
    pp. 69-70. He then adopted the famous passage from Lord Dennings reasons in
Blackburn
and went on to hold that the arbitrators award should be interpreted in such a
    way that it would not interfere with the polices performance of public duties:
    at pp. 70-71, 74.

(c)

Modern Status

[48]

More recently, the Supreme Court
    confirmed and applied the principle of police independence to the criminal law
    context in
R. v. Campbell
,

[1999] 1 S.C.R. 565
. In that case, the court rejected the Crowns
    argument that Royal Canadian Mounted Police (RCMP) agents who violated the
Narcotic
    Control Act
, R.S.C. 1985, c. N-1, enjoyed public interest immunity as
    agents of the Crown. Relying on
McCleave
,
Perpetual Trustee Co.
,
Blackburn
,
    and
Nicholson
, the Supreme Court held that police officers investigating
    a crime occupied a public office defined by the common law and statute. At
    paras. 32-33 of its reasons, the court explicitly adopted the passages from
Perpetual
    Trustee Co.
and
Blackburn
quoted above. Accordingly, the court
    concluded that police officers conducting a criminal investigation are
    independent of the control of the executive government: at para. 27. They are
    not considered servants or agents of the government and are not subject to
    political direction: at para. 33. Instead, they are only answerable to the
    law: at para. 33.

[49]

Campbell
underlined the importance of police independence. The
    court emphasized that the principle of police independence in a criminal
    investigation underpins the rule of law: at para. 29. It accordingly
    interpreted the broad language in s. 5 of the
Royal Canadian Mounted Police
    Act
, R.S.C. 1985, c. R-10, that the RCMP are under ministerial direction in
    a manner that preserved police independence from such direction in matters of core
    law enforcement: at paras. 28-29, 33.

[50]

In the two decades since
Campbell
was decided, Canadian courts have applied the decision to confirm the
    doctrine of police independence in other public law contexts. For instance, in
George
    v. Canada (Attorney General)
, 2007 FC 564, [2008] 1 F.C.R. 752, the Federal
    Court held that RCMP officers conducting criminal investigations are acting
    pursuant to powers that are founded in the common law and subsequently
    confirmed by statute: at paras. 44-45. The court relied on the principle of
    police independence to distinguish police officers from other state
    functionaries exercising delegated legislative authority. It thus held that a
    police officers decision to commence a criminal investigation was not an
    exercise of federal executive authority subject to judicial review in the
    Federal Court: at paras. 46, 49.

[51]

Similarly, in
Conley v.
    Chippewas of the Thames First Nation Chief
, 2015 ONSC 404, Rady J.
    dismissed a claim that the federal Crown was liable for the actions of First
    Nations Constables who allegedly used excessive force against the plaintiff.
    The court reasoned that the doctrine of police independence recognized in
Campbell
meant that the constables were not servants of the Crown: at para. 45.

[52]

Finally, in
R. v. Wellwood
,
    2017 CMAC 4, the Court Martial Appeal Court of Canada likewise applied
Campbell
to conclude that a military police officer conducting a criminal investigation
    was entitled to disregard the order of a non-police military officer with a
    superior rank to cease investigating: at paras. 95, 103.

[53]

Beyond the case law, numerous
    Royal Commissions on policing issues have also echoed the holding in
Campbell
that police independence protects police decision-making in core law
    enforcement functions from executive interference. Even reports that have
    struck a more cautionary tone on police independence have endorsed police
    independence in relation to the core law enforcement functions of conducting
    criminal investigations, laying charges, and making arrests.

[54]

For instance, while the McDonald
    Commission generally called for greater ministerial oversight of the RCMP, it
    recommended that the
Blackburn
doctrine should apply to these core law
    enforcement functions to make them immune from ministerial direction:
Commission
    of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police,

Freedom and Security Under the Law
, vol. 2 (Ottawa: Canadian Government
    Publishing Centre, 1981), at pp. 1009-1010, 1013.

[55]

For its part, the Arar Commission
    also stressed greater ministerial and democratic accountability, but echoed the
    McDonald Commissions conclusion that core law enforcement functions should be
    immune from ministerial direction:
Commission of Inquiry into the Action of
    Canadian Officials in Relation to Maher Arar
,
A New Review Mechanism for
    the RCMP's National Security Activities
(Ottawa: Public Works and
    Government Services Canada, 2006), at pp. 458, 461, 463.

[56]

To a similar effect, a number of
    other commissions have affirmed the principle of police independence,
    particularly in the performance of core law enforcement functions:
e.g.
Commission for Public Complaints Against the RCMP,
Commission Interim
    Report: Following a Public Hearing into the Complaints Regarding the Events
    that Took Place in Connection with Demonstrations During the Asia Pacific
    Economic Cooperation Conference in Vancouver, B.C. in November 1997 at the UBC
    Campus and at the UBC and Richmond Detachments of the RCMP
(Ottawa:
    Commission of Public Complaints, 2001), at p. 86;
Report of the Ipperwash
    Inquiry: Policy Analysis
, vol. 2 (Toronto: Government of Ontario, 2007), at
    pp. 304, 339-340; and Royal Commission on the Donald Marshall, Jr.,
    Prosecution,
Findings and Recommendations
, vol. 1 (Halifax: Province of
    Nova Scotia, 1989), at p. 232.

(2)

Rationales for Police Independence

[57]

The case law, the Royal Commission
    reports, and scholars have outlined three principal rationales for the doctrine
    of police independence: original authority, the rule of law, and the polices
    greater closeness to the community.

(a)

Original Authority

[58]

The concept of original authority
    is a core rationale for the doctrine of police independence. As Ceyssens

explains,
    this doctrine expresses the principle that police officers derive their
    authority directly from the law, and not indirectly through delegation from a
    Minister or another legally competent source: at p. 1-16. Both
Perpetual
    Trustee Co.
and
Blackburn
root police independence in the notion of
    original authority. Similarly,
Campbell
stressed that the police possessed
    original authority that cannot be exercised on the responsibility of any
    person save the officers themselves: at para. 54, quoting
Enever v. The
    King
(1906), 3 C.L.R. 969 (Aust. H.C.), at p. 977.

[59]

The original authority of police
    officers at common law includes the duties to preserve the peace, prevent
    crime, and protect life and property:
Dedman v. The Queen
, [1985] 2
    S.C.R. 2, at p. 32. Section 42 of the Ontario
Police Services Act
,
    R.S.O. 1990, c. P.15, confirms and restates these common law duties.

[60]

The concept of original authority
    is particularly relevant to the police power to lay charges. At common law, any
    individual had the power to lay an information. Upon codification of the
    criminal law, s. 504 of the
Criminal Code
confirmed this power by granting
    to [a]ny one who believes on reasonable grounds that a person has committed
    an indictable offence the power to lay an information. The phrase [a]ny one
    includes police officers.

[61]

The right to lay an information is
    in practice almost completely associated with the police, as they commence the
    criminal process in nearly all cases: John L.l. J. Edwards, Royal Commission on
    the Donald Marshall, Jr., Prosecution,
Walking the Tightrope of Justice: An
    Examination of the Office of the Attorney General in Canada with Particular
    Regard to its Relationships with the Police and Prosecutors and the Arguments
    for Establishing a Statutorily Independent Director of Public Prosecutions: A
    Series of Opinion Papers,
vol. 5 (Halifax: Queen's Printer, 1989), at p. 40.
    Section 504 of the
Criminal Code
thus confirms the common law
    understanding of police original authority. As Edwards notes, the police do not
    derive their authority to lay charges from the Minister responsible for
    policing or the Attorney General, but from the law itself: at p. 42.

(b)

Rule of Law

[62]

Closely linked to the original
    authority rationale for police independence is the rule of law concern that the
    Supreme Court articulated in
Campbell
. As the Arar Commission stated, if
    the government could direct the police who to investigate and who not to
    investigate, Canada would move towards becoming a police state in which the
    Government could use the police to hurt its enemies and protect its friends:
    at p. 458. Similarly, the Marshall Commission stressed that police independence
    protects against the danger that the police would forgo pursuing politically
    sensitive investigations out of a desire to maintain a good working
    relationship with the provincial Attorney General: at pp. 210, 220. Likewise,
    the report of the Commission for Public Complaints Against the RCMP stressed
    that the police had the sole responsibility to respect
Charter
rights
    while exercising their law enforcement functions and that they must evaluate
Charter
issues independently even if they face contrary political or ministerial
    direction: at p. 86.

[63]

Crucially, police independence
    over the decision whether to lay charges requires the Attorney General and the
    Attorney Generals delegates to publicly justify the decision not to pursue
    criminal charges. As the Marshall Commission noted, if the police lay a charge,
    the Crown must determine whether to proceed with the prosecution or withdraw
    the charges in open court. In contrast, if the Crown could order a charge not
    to be laid there would be no transparency and accountability: Marshall
    Commission, at p. 232. Police independence over criminal investigation and
    laying charges thus provides a valuable safeguard against concerns of improper
    pressure: Law Reform Commission of Canada,
Controlling Criminal
    Prosecutions: The Attorney General and the Crown Prosecutor
, Working Paper
    62 (Ottawa: Law Reform Commission of Canada, 1990), at p. 72.

(c)

Closeness to the Community

[64]

A further justification for police
    independence is that independence can enable the police to be responsive to the
    communitys concerns and needs. As the late Justice G. Arthur Martin suggested,
    the power to lay a charge fulfills the police officers duty to respond directly
    to a communitys needs. It may be reassuring to community members that it is
    the police officers who are in their midst, as opposed to Crown Attorneys who
    are more isolated from the community, who make the decision whether to lay
    charges:
Report of the Attorney Generals Advisory Committee on
    Charge Screening, Disclosure, and Resolution Discussions
(Chair: G. Arthur
    Martin) (Toronto: Queens Printer for Ontario, 1993)
, at pp. 123-124.

B.

the Nature
    of the Police-Crown Attorney Relationship

[65]

Closely linked to police
    independence is the relationship between police and Crown Attorneys. As I will
    explain, cooperation between police and Crown Attorneys is salutary for the
    administration of justice. However, each actor has a separate and distinct role
    to play in the administration of justice and the relationship between the two
    actors is not hierarchical. Maintaining the separation of police and Crown
    Attorney functions safeguards each actors independence and protects against
    the misuse of both investigative and prosecutorial powers.

(1)

Cooperation Encouraged

[66]

The Supreme Court has recognized
    the benefits that police cooperation with Crown Attorneys, including seeking
    legal advice, can bring.

[67]

In
Campbell
, the court
    emphasized that whether the police complied with legal advice they received was
    relevant to whether their investigative techniques constituted an abuse of
    process. The community would view police misconduct as more serious if the
    police were told in advance by legal advisers that the investigative technique
    they intended to use was illegal: at para. 45. As the court stated at para. 47,
    A police force that chooses to operate outside the law is not the same thing
    as a police force that made an honest mistake on the basis of erroneous
    advice. The court then reasoned that it was of great importance that the
    RCMP be able to obtain professional legal advice given the complexity of the
    legal system in which the police operate: at para. 49. The Supreme Court thus
    concluded that solicitor-client privilege protected communications between the
    RCMP and a Department of Justice lawyer from whom the RCMP sought advice on the
    legality of an investigative technique.

[68]

Furthermore,
Hill
suggests that good faith reliance on
    legal advice from a Crown Attorney may tend to show that the police exercised
    their discretion reasonably and thus met the standard of care for the tort of
    negligent investigation.

[69]

Similarly, various government commissions have
    consistently encouraged cooperation between police and Crown Attorneys. These
    reports have all recognized that cooperation between the police and Crown
    Attorneys is essential to the proper administration of justice: Marshall
    Commission
,
at p. 232; Law Reform Commission of Canada, at pp. 73-74;
    Martin Report, at pp. 36-37, 124-125;
The Honourable Patrick J. LeSage
    and Professor Michael Code,
Report of the Review of Large and Complex
    Criminal Case Procedures
(Toronto: Queens Printer for Ontario, 2008)
, at pp. 25-26. This cooperation can bring many
    benefits. For example, the Martin Report indicated that cooperation would allow
    officers to reconcile the responsibility to respect the legal rights of
    individuals with the effective detection of crime: at p. 36. Later reports
    have identified
Charter
concerns and the growing complexity of the law
    of evidence and criminal procedure as reasons why such cooperation would be
    useful: LeSage and Code

Report, at p. 25. In the words of LeSage and
    Code, at p. 25, the need to navigate these difficult waters has led the
    police to frequently seek legal advice from Crown Attorneys
.

(2)

No Hierarchical Relationship and Separate and Distinct Roles

[70]

There is, however, an important
    line to be drawn between the cooperation that is expected between Crown
    Attorneys and police officers and the exercise of their respective discretion
    in meeting their legal responsibilities. Their distinct roles and independence
    must be maintained and recognized.

[71]

In
R. v. Regan
,
2002
    SCC 12, [2002] 1 S.C.R. 297,
the Supreme Court
    stressed that police officers and Crown Attorneys maintain separate and
    distinct roles. In
Regan
, an accused person sought to stay charges on
    the basis that a Crown Attorneys wide-ranging pre-charge interviews with
    complainants were an abuse of process because they jeopardized the Crown
    Attorneys objectivity. The majority ultimately rejected an absolute rule
    barring Crown Attorneys from involvement in the pre-charge stage and preferred
    to adopt a more fluid approach: at paras. 64, 87. However, it affirmed that
    the police tasks of investigation and charge-laying must remain distinct and
    independent from the Crown role of prosecution: at para. 64.

[72]

The court accepted that the Crown
    and police have different roles. The police role is to investigate allegations
    of crime, while the Crowns role is to assess whether a prosecution is in the
    public interest: at para. 87. Relying on the Marshall Report, the court also
    characterized the separation of Crown from police functions as an elemen[t]
    of the judicial process which must be safeguarded: at paras. 66, 70.
    Accordingly, it stressed that the distinct line between police and Crown
    functions is that police, not the Crown, have the ultimate responsibility for
    deciding which charges should be laid, even if the Crown and the police
    disagree on whether charges are warranted: at para. 67.

[73]

Following
Regan
, in
R.
    v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190, the Supreme Court rejected the
    proposition that the relationship between police and Crown Attorneys was
    hierarchical in nature.
Beaudry
concerned a police officer charged with
    obstructing justice for deliberately failing to take breath samples of another
    police officer who he had reasonable grounds to believe had been driving while
    intoxicated. The accused officer defended his decision not to take the breath
    samples as a proper exercise of police discretion. The majority of the Quebec
    Court of Appeal upheld the conviction on the basis that, because Quebec employs
    pre-charge screening by Crown Attorneys, the accused officers discretion was
    limited and his only option was to take the breath sample and arrest the other
    officer.

[74]

The Supreme Court, however,
    rejected this hierarchical vision in which the Crown Attorneys discretion
    would limit that of the police officer: at para. 48. It stressed that the
    police had a particular role to play and had a duty to exercise their
    discretion independently of any outside influence: at para. 48. The court
    also emphasized that police discretion involves the duty to use judgment to
    adapt the process of law enforcement to individual circumstances and to the
    real‑life demands of justice: at para. 37. Ultimately, the Supreme Court
    upheld the conviction on the basis that the officer abused his discretion by
    acting out of favouritism.

[75]

Two recent Ontario Superior Court
    decisions have also confirmed that mutual independence is the defining feature
    of the relationship between the police and Crown Attorneys. In
R. v. Riley

(2008), 174 C.R.R. (2d) 288 (Ont. S.C.)
,
    Dambrot J. considered the argument that the legal advice Crown counsel provided
    to police prior to the police decision to obtain an interception authorization
    under s. 184.4 of the
Criminal Code
constituted a breach of s. 8 of the
Charter
.
    Dambrot J. rejected this argument. Crown counsel, he found, simply acted as a
    legal advisor to the police. It was open to the police to accept or ignore
    Crown counsels advice in deciding whether to obtain an authorization: at para.
    147. Accordingly, while Dambrot J. found that the police breached s. 8 of the
Charter
,
    Crown counsels legal advice did not constitute such a breach: at para. 144. In
    reaching this conclusion, Dambrot J. stressed the mutual independence that
    forms the hallmark of the relationship between police and Crown counsel: at
    para. 145. He found that it would jeopardize the distinct line between the
    investigative and prosecutorial functions to equate legal advice from Crown
    counsel with police decision-making: at para. 147.

[76]

Likewise, in
Re Regina and
    Atout
, 2013 ONSC 1312, Campbell J. emphasized that the principle of police
    independence is settled law in Ontario. As Campbell J. stated at para. 56:

There is no question that the
    Crown and the police exercise different functions and operate independently of
    one another. Neither exercises supervisory authority over the other. Police
    officers exercise their own discretion in conducting investigations and, for
    the most part, in laying criminal charges. The police may seek the advice of
    the Crown, but are not bound to follow any advice that may be provided. Crown
    counsel are similarly independent in the exercise of their discretion in the
    prosecution of criminal cases. The Crown is not obliged to prosecute a case
    simply because the police have instituted charges against the accused. In
    short, the police and the Crown are mutually independent.

[77]

I acknowledge that some provinces,
    notably Quebec, New Brunswick, and British Columbia, employ systems of
    pre-charge screening. In these systems, the police present a file to the Crown
    Attorney upon completing the investigation. The Crown Attorney then reviews the
    file and makes a determination about whether it is appropriate to lay charges.
    If the Crown Attorney approves the laying of charges, then the police may
    proceed to lay a charge:
Regan
, at paras. 72, 76-77. In
Regan
, at
    para. 77, the Supreme Court cited the finding of the Law Reform Commission of
    Canada that these pre-charge screening procedures appear to be effective.

[78]

However, this practice of
    pre-charge screening does not remove the police officers discretion as to
    whether it is appropriate to lay a charge. I will outline several reasons why
    this is the case.

[79]

First, in Ontario, it is clear
    that the laying of charges remains a core police responsibility, not one of
    Crown Attorneys. Section 42(1)(e) of the
Police Services Act
stipulates
    that laying charges is one of the duties of a police officer. In contrast,
    the laying of charges is not enumerated in the list of the duties of Crown
    Attorneys found in s. 11 of the
Crown Attorneys Act
.
[i]
To the contrary, s. 11(a) of the
Crown Attorneys Act
seems to contemplate that Crown Attorneys only
    review an information after it has been sworn. This legislative division of
    labour is consistent with the descriptions of the relationship between police
    and Crown Attorneys found in the Martin Report and the LeSage and Code Report.
    It is also stated clearly in Ontarios
Crown Policy Manual
(effective
    November 14, 2017), (Toronto: Ministry of the Attorney General, 2017). As the
    Police section of the
Manual
states, Police officers have sole
    responsibility and discretion overthe laying of criminal charges.

[80]

Second, even in provinces that
    employ pre-charge screening, the Crown Attorneys exercise of discretion in
    reviewing the police file and authorizing the laying of charges does not remove
    the polices independent discretion. In fact, the British Columbia and New
    Brunswick pre-charge screening policies expressly provide that the police can
    decide to lay charges even if the prosecutor does not approve of the laying of
    charges.
[5]
As for Quebec, as Proulx J.A. explained in his concurring opinion in
André
    c. Québec (Procureur général)
, [2003] R.J.Q. 720 (C.A.), at para. 131, leave
    to appeal refused, [2003] S.C.C.A. No. 196, it is inconsistent with police
    independence for the police to hide behind the prosecutors decision to approve
    the laying of charges. When the police officer presents the case file to the
    prosecutor who conducts the charge screening, this demonstrates that the officer
    has already determined that there are reasonable grounds to believe that the
    target of the investigation has committed an offence. Moreover, the
    prosecutors decision to approve the laying of charges does not eliminate the
    officers discretion. Instead, the officer must still make the decision to
    proceed and to sign and swear the information under s. 504 of the
Criminal
    Code
:
André
, at para. 132.

[81]

Third, without expressing a
    definitive opinion on this particular point, a decision by a provincial
    Attorney General or the Attorney Generals delegates to direct a police officer
    not to lay charges would raise serious constitutional concerns. As mentioned
    earlier, s. 504 of the
Criminal Code
gives [a]ny one the right to lay
    an information. In
Attorney General of Quebec v. Lechasseur et al.
,
    [1981] 2 S.C.R. 253, at p. 259, the Supreme Court held that provincial
    legislation that would otherwise limit the ability of [a]ny one to lay an
    information under the predecessor provision to s. 504 was constitutionally
    inapplicable by virtue of the paramountcy doctrine. As a result, Michael Code
    has argued that an attempt by a provincial Attorney General or the Attorney
    Generals delegates to direct a police officer not to lay charges would also
    likely be invalid on federalism grounds. Code reasons that if provincial
    legislation is incapable of removing a citizens right to lay charges under s.
    504, it follows that a provincial Attorney General or Crown Attorney cannot
    direct police not to lay an information or to only lay an information with a
    Crown Attorneys approval: Michael Code, Crown Counsels Responsibilities When
    Advising the Police at the Pre-Charge Stage, (1998) 40 Crim. L.Q. 326, at pp.
    341-342.


[82]

Likewise, in
André
, Proulx
    J.A. was of the opinion that it followed from
Lechasseur
that the police
    officer has the power to lay an information even in the absence of
    authorization from the prosecutor who screened the charges: at paras. 92, 132.
    I would note that to hold otherwise risks undermining the role and independence
    of police and their legal authority to exercise their discretion judiciously in
    the laying of charges.

[83]

Academic commentators and
    government reports have also stressed that Crown Attorneys and the police have
    separate and distinct roles. The Martin Report

concluded that, [a]s a
    matter of law, police officers exercise their discretion in conducting
    investigations and laying charges entirely independently of Crown counsel: at
    p. 37. It found that there is in both law and practice in Ontario a relatively
    clear separation of the functions of investigator and prosecutor: at p. 116.
    While the LeSage and Code Report recognized and encouraged a trend toward
    greater Crown-police collaboration, it likewise emphasized that the historic
    independence and separation of roles remains intact and that the Crowns
    exercise of discretionmust be independent of the police investigation: pp.
    25-26, 29.

[84]

Similarly, Edwards has stressed
    the critical importance of distinguishing the separate roles of police and
    prosecutors at the stage of instituting criminal proceedings: John L.l. J.
    Edwards, The
Charter
, Government and the Machinery of Justice (1987)
    36 U.N.B.L.J. 41,

at p. 46. While Edwards acknowledges that the roles of
    prosecutors and police may sometimes overlap, he concludes that it is still
    necessary to maintain a functional separation of duties to keep the prosecution
    and investigation functions distinct: John L.l. J. Edwards,
The Attorney
    General, Politics and the Public Interest
(London: Sweet & Maxwell,
    1984), at pp. 80-81, 84.

(3)

Benefits of Maintaining Separate and Distinct Roles

[85]

The separation of police and Crown
    Attorney functions both safeguards police independence and helps preserve
    prosecutorial independence. Unlike police investigators, Crown Attorneys should
    not have made a determination as to whether the target of the investigation is
    guilty, and they should thus be able to consider the merits of a prosecution in
    a disinterested manner if and when a charge is laid: Martin Report, at p. 113;
    LeSage and Code

Report
,
at pp. 29-31. In
Regan
, the
    Supreme Court recognized that Crown involvement in an investigation could cause
    a Crown Attorney to lose her objective stance as a minister of justice, even
    though this was not inevitable: at para. 65. Following
Regan
, the LeSage
    and Code Report recommended that a Crown Attorney who had been significantly
    involved in the investigative stage not take carriage of the prosecution upon
    the laying of charges: at pp. 30-31. As the late Justice Rosenberg has written
    extrajudicially,
Regan
serves as a reminder of the dangers to the
    proper functioning of the system when Crown counsel appear to have become too
    closely aligned with the police: The Honourable Marc Rosenberg, The Attorney
    General and the Administration of Criminal Justice, (2009) 34 Queens L.J.
    813, at p. 829.

[86]

Police independence and
    prosecutorial independence in fact go hand in hand. As Edwards notes, the
    police accept the Crown prosecutors independence in deciding whether the
    prosecution should be initiated or continued as it is consistent with their own
    right to determine who should be charged and for what offences: Edwards,
The
    Attorney General
, at p. 97. And, as the Martin Report concluded, mutual
    independence provides a safeguard against the misuse of both investigative and
    prosecutorial powers and can ensure that both investigations and prosecutions
    are conducted more thoroughly and fairly: at p. 39. Where the two actors
    disagree, the principles of police and prosecutorial independence allow for
    this disagreement to be resolved through a public and transparent process in
    which each actor exercises its appropriate role: Marshall Commission, at p.
    234.

[87]

The decision of the Attorney
    General of Ontario to stay charges the police laid against Dr. Henry
    Morgentaler for performing abortions while Dr. Morgentalers appeal to the
    Supreme Court of Canada was pending illustrates how police and prosecutors
    operate separately and distinctly. The Attorney General accepted that the
    police possessed the constitutional responsibility to investigate offences
    and to lay charges. However, he stated that Crown Attorneys had a parallel
    responsibility to exercise their discretion whether to proceed with the charges
    and had no obligation to prosecute just because the police had gathered
    sufficient evidence. As a result, the Crown stayed the charges on the basis
    that there could be no trial of those charges until the Supreme Court resolved
    Dr. Morgentalers appeal: see
Campbell v. Attorney-General of Ontario
(1987), 58 O.R. (2d) 209 (H. Ct. J.), at pp. 213-214, affd (1987), 60 O.R.
    (2d) 617 (C.A.). The Attorney General later wrote the following about this
    case:

This example clearly demonstrates
    the differences in the roles of the attorney general and the police. Before
    laying the charges, the police consulted the attorney general and his agents,
    and were advised that any charges that were laid would, in the circumstances,
    be stayed. Notwithstanding this advice, the police concluded that it was their
    duty and responsibility to lay the charges that they believed on reasonable and
    probable grounds were warranted. The attorney general, while acknowledging the
    role of the police that entitled them to take this action, did what he believed
    the administration of justice required: The Honourable Ian Scott, Law, Policy,
    and the Role of the Attorney General: Constancy and Change in the 1980s,
    (1989) 39 U.T.L.J. 109, at p. 118.

(4)

Wording in Crossclaim

[88]

Before
    concluding this discussion of the nature of the relationship between police and
    Crown Attorneys, it is necessary to address one issue in particular that arises
    from some of the wording used by the Durham appellants in their crossclaim.
    Specifically, at para. 210 of their amended statement of defence and
    crossclaim, the Durham appellants plead the following concerning the legal
    advice they received from the respondent Crown Attorneys:

[B]ut for receiving this legal
    advice and direction, [the Durham appellants] would not have proceeded with the
    investigation in the manner it was undertaken or charged the Plaintiff with
    Beverley Smiths murder.

[89]

I
    am concerned that this wording could be understood as advancing the theory
    that, in giving legal advice, the Crown Attorneys were somehow directing
    police decision-making. To be clear, such a theory runs completely contrary to
    the nature of the relationship between police and Crown Attorneys. While police
    may be entitled to rely on advice from Crown Attorneys as a consideration in
    the exercise of their discretion,
[6]
given the legal separation of functions, such advice cannot to be taken as
    determinative or controlling. Taken to its logical conclusion, on this theory
    the police would have had no discretion and their only option would have been
    not to charge the plaintiff if the Crown Attorneys recommended against this.
    This is precisely the hierarchical relationship that
Beaudry
condemned.
    It runs contrary to the statement in
Campbell
that, while police
    officers may seek advice on how to exercise their authority, the responsibility
    on how and whether to exercise that authority remains with police officers
    alone: at para. 54. As Edwards emphasizes, even in jurisdictions where the
    police retain in-house lawyers who advise on whether to lay charges, the final
    decision on whether to lay charges and for what offences remains with the
    police: Edwards,
The Attorney General
, at p. 89. To put it bluntly,
    while police can seek legal advice from Crown Attorneys, they do not have to
    take it and the decision whether to lay charges is theirs alone.

C.

application
    of these principles to the issues in this case

[90]

As
    will be seen in my analysis below, the principles governing police independence
    and the nature of the relationship between police and Crown Attorneys support
    the conclusions that it is plain and obvious that prosecutorial immunity bars
    the crossclaim and that Crown Attorneys do not owe a duty of care to police in
    respect of the legal advice they provide. Each one of these conclusions is
    fatal to the crossclaim.

(1)

Proper Case for Motion to Strike

[91]

Before
    turning to the substance of my analysis, I would first reject the appellants
    argument that this is not a proper case for a motion to strike. Pursuant to r.
    21.01(1)(b) of the
Rules of Civil Procedure
, a party may move to strike
    a claim that discloses no reasonable cause of action. While a claim will not be
    struck simply because it is novel, if it is plain and obvious that the pleading
    discloses no reasonable cause of action, it cannot proceed:
R. v. Imperial
    Tobacco
, 2011 SCC 42, [2011] 3 S.C.R. 46, at para. 17;
Hunt v. Carey
    Canada Inc.
, [1990] 2 S.C.R. 959, at p. 980. The appellants rely on this
    courts decisions in
Paton Estate v. Ontario Lottery and Gaming Commission
    (Fallsview Casino Resort and OLG Casino Brantford)
, 2016 ONCA 458, 131 O.R.
    (3d) 273, and
Amato v. Welsh
, 2013 ONCA 258, 362 D.L.R. (4th) 38.
    However, neither decision establishes a rule that novel claims should never be
    struck on a r. 21 motion. As I explain below, in this case, it is plain and
    obvious that the crossclaim cannot succeed because it is barred by
    prosecutorial immunity or, in the alternative, because the respondents do not
    owe the Durham appellants a duty of care.

[92]

In
    particular, I would reject the appellants argument that it is inappropriate to
    resolve the prosecutorial immunity issue on a r. 21 motion. In both
Nelles
and
Henry
, the Supreme Court determined the liability threshold for
    malicious prosecution and s. 24(1)
Charter
remedies, respectively, on a
    motion to strike:
Nelles
, at p. 177;
Henry
, at para. 21.
    Similarly, in both cases the Supreme Court considered the policy rationales
    underlying prosecutorial immunity:
Nelles
, at p. 199;
Henry
, at
    para. 66. Likewise, in
Clark
, this court found that it was appropriate
    to resolve the prosecutorial immunity issue on a r. 21 motion. As the court
    reasoned, at para. 75, the issue was not wholly novel but instead was merely a
    variation on a familiar theme  the scope of prosecutorial immunity in the
    context of criminal prosecutions.

[93]

I
    would also reject the appellants argument that there was insufficient evidence
    to resolve the duty of care issue on the r. 21 motion. The motions judge
    declined to decide the duty of care question because she held that there was
    insufficient evidence concerning the impact of a tort claim for negligent legal
    advice on the relationship between police and prosecutors: Motions Judges
    Reasons, at para. 169. However, as discussed above, the existence of the
    separate and distinct roles of police and Crown Attorneys and the principle of
    police independence during the investigation and charge-laying stages are matters
    of settled law.

[94]

In
    any case, the motions judge only found that there was insufficient evidence
    concerning the impact of the imposition of a duty of care on the relationship
    between police and prosecutors. However, the second stage of the
Anns/Cooper
analysis focuses on residual policy concerns that are extrinsic to the
    relationship between the parties:
Deloitte & Touche v. Livent Inc.
    (Receiver of)
, 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 37. As I discuss
    below, the twin policy concerns relevant to the prosecutorial immunity issue
    are also relevant to stage two of the duty of care analysis, and these concerns
    were fully explored by the parties before the motions judge.

(2)

Plain and Obvious that Prosecutorial Immunity Bars the Crossclaim

[95]

It
    is plain and obvious that prosecutorial immunity bars the crossclaim because
    the two policy concerns of diversion from public duties and chilling effect leading
    to defensive lawyering that give rise to prosecutorial immunity apply to the case
    at bar. There is no basis upon which to treat claims by the police differently
    from claims by individual citizens, nor is there a basis to differentiate between
    claims arising from the pre-charge stage versus the post-charge stage.

(a)

The Principles of Prosecutorial Immunity

[96]

Prosecutorial
    immunity is rooted in two policy concerns: the risk of diverting Crown counsel
    from their important public duties, and the risk of a chilling effect on the
    behaviour of prosecutors that leads to defensive lawyering:
Henry
, at
    para. 71. The diversion concern is that Crown Attorneys would spend too much of
    their limited time responding to civil lawsuits rather than fulfilling their
    duty to prosecute crime:
Henry
, at para. 72. The chilling effect concern
    is that fear of liability would lead to defensive lawyering designed to ward
    off liability, rather than to serve the public interest:
Henry
, at para.
    73. These policy concerns flow from public law principles on Crown independence
    and prosecutorial discretion:
Miazga v. Kvello Estate
, 2009 SCC 51, [2009]
    3 S.C.R. 339, at para. 5. These principles justify prosecutorial immunity for
    negligence or errors of judgment:
Miazga
, at paras. 80-81. In addition,
    they shape the high threshold for liability in an action for malicious
    prosecution even where prosecutorial immunity does not apply:
Nelles
, at
    p. 199;
Miazga
, at para. 50. Similarly, in
Henry
, the Supreme
    Court applied these policy concerns to inform the liability threshold for s.
    24(1)
Charter
remedies against prosecutors.

[97]

The
    strong countervailing interest of the importance of providing the subject of a
    prosecution with an effective remedy led the Supreme Court to establish
    exceptions to prosecutorial immunity. In
Nelles
, the Supreme Court
    stressed that its concern for the individual rights of citizens who have been
    wrongly and maliciously prosecuted led it to grant an exception to immunity
    for malicious prosecution:
Nelles
, at p. 199.  The policy imperative of
    protecting individuals caught up in the justice systemfrom abuses of power
    thus justified a limited exception:
Proulx v. Quebec (Attorney General)
,
    2001 SCC 66, [2001] 3 S.C.R. 9, at para. 4. Similarly, in
Henry
, the
    Supreme Court stressed the need to offer an effective remedy to victims of
    unconstitutional conduct by Crown Attorneys in justifying lifting immunity for
    s. 24(1)
Charter
claims:
Henry
, at paras. 65-66.

[98]

However,
    this powerful countervailing interest did not lead the Supreme Court to accept
    a negligence-based standard of liability, even for
Charter
breaches.
Nelles
explicitly excluded errors in judgment or discretion or even professional
    negligence from liability, and
Miazga
affirmed that liability will not
    be imposed even in cases of recklessness or gross negligence absent malice:
Nelles
, at p. 199;
Miazga
, at paras. 80-81. While in
Henry
the Supreme Court was willing to establish a lower standard than malice for s.
    24(1)
Charter
relief, it insisted on a high threshold to limit the scope
    of liability and thus rejected even the gross negligence standard:
Henry
,
    at paras. 74, 92-94. The intentionality and knowledge requirements the majority
    in
Henry
imposed as preconditions for relief aimed to set a higher
    liability threshold than tort law negligence: at paras. 88-89.

(b)

These Principles Apply to the Case at Bar

[99]

It
    is plain and obvious that prosecutorial immunity applies to police litigation
    against Crown Attorneys for negligent advice, because such litigation engages
    the twin policy concerns of diversion from public duties and a chilling effect
    leading to defensive lawyering.

[100]

First, police
    litigation against Crown Attorneys for negligent advice plainly has the
    potential to divert Crown Attorneys from their duties. In this regard, I would
    echo the conclusions of this court in
Clark
. At para. 86, this court
    held that the diversion from duties concern was equally valid in relation to
    claims against Crown Attorneys brought by police. Requiring Crown Attorneys to
    fight off the grievances of disgruntled officers in court would undermine the
    proper functioning of the justice system. As the Supreme Court held in
Henry
,
    at para. 72, making Crown Attorneys spend their time responding to lawsuits
    would undermine Canadians collective interest in allowing Crown Attorneys to
    focus on their primary task, namely prosecuting crime fairly and effectively.

[101]

Second, police
    litigation against Crown Attorneys for negligent advice engages the chilling
    effect leading to defensive lawyering concern 
i.e.
the concern that
    the actions of Crown Attorneys  here, in the area of advice-giving  would be motivated
    less by legal principle than by a calculated effort to ward off the spectre of
    liability:
Henry
, at para. 73.

[102]

This courts decision
    in
Clark
confirms the relevance of the chilling effect concern to police
    litigation against Crown Attorneys. At paras. 87-88, this court held that
    imposing liability would encourage Crown Attorneys to focus on extraneous
    factors during the course of a prosecution, which would distort principled
    decision-making. While
Clark
concerned Crown Attorney conduct after the
    laying of charges, the same concerns apply to Crown Attorney involvement at the
    pre-charge stage. As the Supreme Court held in
Regan
, at para. 89, Crown
    Attorneys who are involved at the pre-charge stage of the process have a duty
    to remain objective, and, accordingly, to make a rational assessment of the
    facts in making decisions related to the case. Imposing liability for mere
    negligence would risk leading Crown Attorneys whose advice is sought by police at
    the investigation stage to allow their actions to be guided more by a desire to
    avoid liability than by an objective assessment of the facts and law.

[103]

As an additional basis
    to the application of these well-settled policy concerns, I would note that in
    the circumstances of this case the chilling effect policy concern includes the
    damage that imposing liability would cause to the relationship between Crown
    Attorneys and the police. Imposing liability could upset the principles that I
    have previously outlined that govern this relationship. In this regard, in
Henry
the Supreme Court did consider factors relevant to the relationship between
    police and Crown Attorneys in setting the liability threshold for
Charter
claims against prosecutors: at paras. 92-93. Focusing specifically on the
    nature of the claim in the case at bar, there are two forms that this damage
    could take.

[104]

First, fear of civil
    liability for negligent legal advice could cause Crown Attorneys to be
    reluctant to give advice. This concern was recognized by Dambrot J. in
Riley
,
    at para. 145, when he stated that holding Crown Attorneys who advise the police
    legally responsible for police decisions would tend to deter Crown Attorneys
    from advising the police. This outcome would deny our criminal justice system
    the benefits that come from this type of police and Crown cooperation.

[105]

Second, and looked at from
    another perspective, fear of civil liability for negligent legal advice could
    also cause Crown Attorneys to veer into impermissible direction of the police.
    This is precisely the concern that McCardie J. raised in
Fisher
when he
    stated that municipal direction of police law enforcement decisions would be
    the logical consequence of imposing vicarious liability for the actions of
    police on the municipality: at pp. 377-378. This outcome would run contrary to
    the principle that Crown Attorneys do not exercise supervisory authority over
    the police: see
Atout
, at para. 56. As the Supreme Court held in
Henry
,
    at para. 93, it is inappropriate to require Crown Attorneys to police the
    police.

(c)

No Basis to Differentiate Between Claims by Police versus Claims by
    Individual Citizens

[106]

The appellants submit
    that it is appropriate to impose liability on Crown Attorneys for mere
    negligence when the claim is brought by the police. The Durham appellants did
    not plead malice,
Charter
breaches, or intentional withholding of
    information. The motions judge accepted the appellants argument on the basis
    that the prosecutorial immunity cases I have already discussed focused on the
    rights of individual citizens, not the rights of the police: Motions Judges
    Reasons, at para. 137.

[107]

I would reject this
    argument. As this court held in
Clark
and as the Divisional Court held
    in the present case, there is no basis to privilege the interests of police
    officers over ordinary citizens by establishing a lower liability threshold for
    the former than the latter:
Clark
, at para. 55; Divisional Court
    Reasons, at para. 30.

[108]

The jurisprudence is
    clear that no claim lies against a Crown Attorney for mere negligence. This
    court has repeatedly held that there is no claim in negligence against the
    Crown for prosecutorial misconduct, even for tort claims other than malicious
    prosecution:
Miguna v. Ontario (Attorney General)
(2005), 262 D.L.R.
    (4th) 222 (Ont. C.A.), at para. 11;
Gilbert v. Gilkinson
(2005), 205
    O.A.C. 188 (C.A.), at para. 7, leave to appeal refused, [2006] S.C.C.A. No. 67;
Abernethy v. Ontario
, 2017 ONCA 340, at para. 12, leave to appeal
    refused, [2017] S.C.C.A. No. 248. Likewise, the Supreme Court has consistently
    rejected a negligence-based threshold: see
Proulx
, at para. 35. Contrary
    to the appellants submissions, the rejection of negligence as a threshold for liability
    is not limited to the tort of malicious prosecution.
Henry
applied it to
    s. 24(1)
Charter
remedies for non-disclosure, and emphasized that a
    negligence-based standard ignores the basic realities of conducting a criminal
    prosecution:
Henry
, at para. 92.

[109]

Nor does the fact that
    the appellants pled that they received legal advice on the investigation from
    the respondent Crown Attorneys justify lowering the liability threshold. As
    discussed above regarding the nature of the relationship between police and
    Crown Attorneys, it is important that the police be able to obtain professional
    legal advice on the conduct of criminal investigations:
Campbell
, at
    para. 49; Motions Judges Reasons, at para. 169. However, the police crossclaim
    remains one for indemnification for a monetary loss. This claim is less
    compelling than claims by individual citizens whose
Charter
rights are
    violated by prosecutors or who are the victims of a malicious prosecution. As
    Lamer J. (as he then was) noted in
Nelles
, a malicious prosecution may
    amount to a deprivation of the s. 7
Charter
right to liberty and
    security of the person: at pp. 195-196. Finally, as noted above, tort law
    already provides a mechanism to take into account the polices good faith
    reliance on legal advice from Crown Attorneys.

[110]

I would also reject
    the appellants argument that it is unfair to impose liability on the police
    where Crown Attorneys in the same circumstances are free from liability. The
    Supreme Court has consistently emphasized that a claim may lie against police
    where it does not lie against Crown Attorneys. In
Hill
, the court
    rejected the argument that the police decision to pursue an investigation is
    quasi-judicial such that the police should enjoy a similar immunity to
    prosecutors: paras. 49-50. Similarly, in
Henry
, the majority
    specifically stressed that the police, unlike Crown Attorneys, are liable in
    negligence: at para. 93.

(d)

No Basis to Differentiate Between Claims Arising from the Pre-Charge
    Stage versus the Post-Charge Stage

[111]

The appellants further
    submit that prosecutorial immunity does not apply to the pre-charge stage. The
    appellants argue that prosecutorial discretion only encompasses decisions
    regarding the nature and extent of the prosecution and the Attorney Generals
    participation in it:
R. v. Anderson
, 2014 SCC 41, [2014] 2 S.C.R. 167,
    at para. 44, quoting
Krieger v. Law Society of Alberta
, 2002 SCC 65,
    [2002] 3 S.C.R. 372, at para. 47. As assistance with pre-charge investigation
    does not fall within the list of examples of prosecutorial discretion provided
    in
Nelles
,
Krieger
, and
Anderson
, prosecutorial immunity
    does not apply.

[112]

Like the motions judge
    and the Divisional Court, I would reject this argument. It runs contrary to the
    following statement by Moldaver J. in
Henry
, at para. 76:

[T]he policy concerns raised in
    the malicious prosecution trilogy are not confined to the exercise of core
    prosecutorial discretion. In my view, those concerns have a broader reach and
    are implicated wherever there is a risk of undue interference with the ability
    of prosecutors to freely carry out their duties in furtherance of the
    administration of justice.

[113]

As I discussed earlier
    in these reasons, even though police and Crown Attorneys occupy mutually
    independent roles in our justice system, cooperation between them at the
    pre-charge stage, including by providing legal advice, is salutary to the
    administration of justice. In fact, there is a long tradition in Ontario of
    police consulting with Crown Attorneys at the pre-charge stage of the investigation:
    Martin Report, at p. 124; LeSage and Code Report, at pp. 24-25. I thus agree
    with the motions judges finding that the actions of the respondents Hill and
    Scott as described in the pleadings were undertaken in furtherance of Crown
    Attorneys statutory duty under s. 11 of the
Crown Attorneys Act
, R.S.O.
    1990, c. C.49, to aid in the local administration of justice: Motions Judges
    Reasons, at para. 114.

[114]

In my view, the existing case law makes clear that it
    is plain and obvious that
prosecutorial immunity applies to bar the
    crossclaim. The twin policy concerns that give rise to prosecutorial immunity are
    engaged by claims brought by police for negligent legal advice. The crossclaim
    fails on this ground.

(3)

Plain and Obvious That Crown Attorneys Do Not Owe a Duty of Care to Police
    In Respect Of the Legal Advice They Provide

[115]

As a separate and independent
    basis for my decision, I would also dismiss the appeal on the basis is that it
    is plain and obvious that Crown Attorneys do not owe a duty of care to the
    police in respect of the legal advice they provide.

[116]

In order to determine whether or
    not a duty of care should be recognized, it is necessary to follow the
    two-stage
Anns/Cooper
test, which was articulated by the Supreme Court
    of Canada in
Imperial Tobacco
as follows, at para. 39:

At the first stage of this test,
    the question is whether the facts disclose a relationship of proximity in which
    failure to take reasonable care might foreseeably cause loss or harm to the
    plaintiff.  If this is established, a
prima facie
duty of care arises
    and the analysis proceeds to the second stage, which asks whether there are
    policy reasons why this
prima facie
duty of care should not be
    recognized [Citation omitted].

[117]

I would note that in
Clark
this court declined to consider stage 1 of the
Anns
/
Cooper
test. However,
    it offered some comments on the application of stage 2 of the test. I
    appreciate the panels reluctance in
Clark
to address the proximity
    issue. However, I believe it is both appropriate and helpful to address the
    proximity issue in the context of this case. The proximity issue was a ground
    of appeal and was fully argued. As I will explain, resolution of the issue
    turns on well-settled principles of law governing the relationship between and
    respective roles of the police and Crown Attorneys.

[118]

I turn now to stage
    one of the analysis.

(a)

Stage One: No
Prima Facie
Duty of Care

[119]

The test for proximity
    is whether there is such a close and direct relationship between the parties
    that it would be just to impose a legal duty of care:
Livent
, at para.
    25. It is not necessary to conduct a full proximity analysis if a case falls
    within an established proximate relationship or an analogous category. The
    present case does not fall within an established or analogous relationship as
    the appellants allege that they are arguing for the recognition of a new category
    of relationship giving rise to liability. Accordingly, I will conduct a full
    proximity analysis, examining relevant factors arising from the relationship
    between the parties such as the parties expectations and reliance: see
Livent
,
    at para. 29.  In conducting this analysis, I am cognizant that a conflict
    between an alleged duty of care and a public duty may also constitute a reason
    for refusing to find proximity:
Syl Aps Secure Treatment Centre v. B.D.
,
    2007 SCC 38, [2007] 3 S.C.R. 83, at para. 28.

[120]

As I explain below, I
    am not satisfied that there is a sufficiently direct and close relationship to
    impose a
prima facie
duty of care on Crown Attorneys in providing legal
    advice to police.

[121]

As I have discussed,
    while cooperation between the police and Crown Attorneys is salutary for the
    administration of justice, they have separate and distinct roles. Their
    relationship is defined by mutual independence.

[122]

As a matter of law,
    the police role in investigating crime and deciding whether to lay charges is
    distinct and independent from the Crowns role of prosecution:
Regan
,
    at para. 64.
Regan
referred to the polices ultimate responsibility over
    charge-laying as a distinct line between police and Crown functions that must
    be preserved: at para. 67. To a similar effect are the statements in the Martin
    Report and the LeSage and Code Report about the separation between the exercise
    of police functions and Crown Attorney functions. As I have explained earlier,
    the statutory framework confirms this separation of functions. Read together,
    the
Police Services Act
and the
Crown Attorneys Act
make clear
    that the Legislature contemplated that police officers, not Crown Attorneys,
    have sole responsibility for laying charges.

[123]

In the course of an
    investigation, police officers are required to weigh the evidence to a certain
    extent:
Hill
, at para. 50; Martin Report
,
at p. 117. Unlike Crown
    Attorneys, however, they have no obligation to evaluate evidence according to
    legal standards or to make legal judgments:
Hill
, at para. 50.

[124]

Once a charge is laid,
    it is the role of Crown Attorneys in this province to decide whether to
    commence or continue a prosecution based on whether there is a reasonable
    prospect of conviction and whether the prosecution is in the public interest:
    see
Miazga
, at para. 64. As the Martin Report stated, Crown Attorneys
    thus must take into account many factors that the police are not required to
    consider. Not only do they need to see that the public interest is served, but
    they also should determine whether the evidence that the police have gathered
    will stand up in court: at pp. 117-118. As the Supreme Court held in
Regan
,
    at para. 87, The expectation is that police officers and Crown Attorneys will
    act according to their distinct roles in the process.

[125]

This separation of
    police and Crown Attorney functions both safeguards police independence and
    helps preserve prosecutorial independence. In light of their separate and independent
    roles, it is not reasonable for police to expect Crown Attorneys to owe them a
    private law duty of care in giving legal advice.

[126]

Imposing a private law
    duty of care on Crown Attorneys in providing legal advice to police would also be
    at odds with the public role that Crown Attorneys play in the administration of
    justice. Crown Attorneys have a duty to act for the public and the
    administration of justice resolutely and honourably: Law Society of Ontario,
Rules
    of Professional Conduct
, Rule, 5.1-3. Under the
Crown Attorneys Act
,
    Crown Attorneys have public duties. The Supreme Court recognized the public
    nature of these duties and the importance of protecting Crown Attorneys
    ability to make independent decisions in
Miazga
. As the court held at
    para. 47,

In exercising their discretion to
    prosecute, Crown prosecutors perform a function inherent in the office of the
    Attorney General that brings the principle of independence into play.  Its
    fundamental importance lies, not in protecting the interests of individual
    Crown attorneys, but in advancing the public interest by enabling prosecutors
    to make discretionary decisions in fulfilment of their professional obligations
    without fear of judicial or political interference, thus fulfilling their
quasi
-judicial
    role as ministers of justice:
Boucher v. The Queen
, [1955] S.C.R. 16,
    at p. 25,
per
Locke J.

[127]

In providing legal
    advice to police officers, Crown Attorneys thus owe duties to the public at
    large. Imposing a private law duty of care risks putting Crown Attorneys in a
    conflict of interest situation.

[128]

Finally, I note that
    in support of their argument in favour of establishing a
prima facie
duty
    of care the appellants rely on the Supreme Courts finding in
Campbell
,
    at para. 50, that a solicitor-client relationship with its attendant duties,
    responsibilities and privileges formed between the RCMP and the Department of
    Justice lawyer from whom the RCMP officers sought legal advice. I am not persuaded
    that
Campbell
assists the appellants.
Campbell
was not a torts
    case, and the Supreme Court did not conduct any duty of care analysis in its
    decision. The case does stand for the principle that it is important that the
    police be able to obtain legal advice and that solicitor-client privilege
    should attach to protect the contents of that advice from disclosure. The
    mutual independence of the police and the Attorney General thus did not bar the
    RCMP from asserting a right of confidentiality over the legal advice provided:
Campbell
,
    at para. 54. However, it does not follow from
Campbell
that imposing
    private law liability on Crown Attorneys who provide legal advice to police is
    necessary to ensure that the police can obtain legal advice. To the contrary,
    the fact that the relationship between police and Crown Attorneys has been
    characterized by mutual cooperation to date suggests that imposing private law
    liability is not necessary to ensure that the police can obtain legal advice.

[129]

In light of my
    conclusion on proximity, it is unnecessary to consider foreseeability.

[130]

I conclude that, given
    the lack of proximity, the respondent Crown Attorneys do not owe a
prima
    facie
duty of care to the Durham appellants.

(b)

Stage Two: Residual Policy Considerations

[131]

Only if there is a
prima
    facie
duty of care is it necessary to consider whether there are residual
    policy considerations that negate such a duty. In this case, I have found there
    is no
prima facie
duty and so it is unnecessary to consider stage 2.
    However, in the event I am wrong on stage 1, I would conclude that this is one
    of the rare cases in which stage 2 considerations negate a
prima facie
duty of care.

[132]

Stage two of the
Anns
/
Cooper
test focuses on residual policy considerations outside of the relationship of
    the parties. These concerns include the effect of recognizing a duty of care on
    other legal obligations, the legal system and society more generally:
Livent
,
    at para. 38, quoting
Cooper
, at para. 37. This stage is a normative inquiry
    that allows the court to consider whether reasons relating to legal or
    doctrinal order, or other societal concerns, should negate a duty of care:
Livent
,
    at para. 40. To negate a
prima facie
duty of care, a real potential for
    negative consequences must be apparent from the policy concerns at play:
Hill
,
    at para. 48.

[133]

The same two policy
    concerns that compel the application of prosecutorial immunity to these
    circumstances also operate as residual policy concerns that negate the
    recognition of a duty of care. First, there is the concern that imposing a duty
    of care would divert Crown counsel from their important public duties. Second,
    there is the concern that the spectre of liability would lead Crown Attorneys to
    lawyer defensively to protect their own interests  which, on the facts of this
    case, could also be used as a stage one factor. Importantly, however, as the
    Supreme Court explained at para. 73 of
Henry
, [t]
he public interest is undermined when prosecutorial
    decision-making is influenced by considerations extraneous to the Crowns role
    as a quasi-judicial officer.

[134]

A third residual
    policy concern is that imposing a duty of care on Crown Attorneys would undermine
    the mutual independence and distinct roles of police and Crown Attorneys, which
    in turn could harm the functioning of the criminal justice system. Police
    officers and Crown Attorneys constitute the two arms of the criminal justice
    system:
Regan
, at para. 67. Their roles are central to the functioning
    of the legal system.  As Justice Rosenberg explained, the erosion of the
    distinct line between Crown and police functions poses dangers to the proper
    functioning of the system: Rosenberg, The Attorney General, at p. 829.

[135]

This case illustrates
    how imposing a duty of care could erode that distinct line to the detriment of
    the criminal justice system.  The plaintiffs case against the police
    exclusively concerns police conduct during the investigation and decision to
    lay a charge, stages in which the police are constitutionally independent and
    immune to direction from Crown Attorneys or the Attorney General. As I have
    discussed above, imposing liability in these circumstances could encourage
    Crown Attorneys to not only refrain from advising the police, but also to veer
    into impermissible direction of the police. Likewise, imposing liability could
    encourage the police to impermissibly fetter their discretion by treating legal
    advice from Crown Attorneys as determinative instead of being merely one factor
    to consider. The imposition of a duty of care thus puts at risk the
    maintenance of the distinct line between the investigative and prosecutorial
    functions that is essential to the proper administration of justice:
Riley
,
    at para. 147.

[136]

In conclusion, if contrary
    to my conclusion above Crown Attorneys do owe a
prima facie
duty of care
    to police in providing legal advice, such a duty is negated by important
    residual policy considerations.

VI.

DISPOSITION

[137]

Accordingly, I would
    dismiss this appeal.

[138]

With respect to the
    issue of costs, the parties agreed that should the disposition of this appeal
    be in favour of the respondents, then the respondents should be awarded their
    costs collectively fixed in the amount of $20,000, with the Durham appellants
    and York appellants to each pay half of this sum. Accordingly, the Durham
    appellants and the York appellants are hereby each ordered to pay costs fixed
    in the amount of $10,000 to the respondents collectively, inclusive of all
    taxes and disbursements.

Released: M.T. August 12, 2019

M. Tulloch J.A.

I agree. Janet Simmons
    J.A.

I agree. David Brown
    J.A.





[1]

In their Amended Statement of Defence and Crossclaim, the
    Durham Regional Police Services appellants plead, at para. 210, that the Crown
    Attorneys Office, as legal counsel to the DRPS and these Defendants, owe them
    a duty of care in tort and negligence In para. 209, they plead the existence
    of a retainer in which the Crown Attorneys Office expressly or by
    implication undertook to provide legal advice with respect to the
    investigation of the Plaintiff and the decision to lay a charge against him.
    Although the pleading refers, in part, to the Crown Attorneys Office
    expressly undertaking to provide advice, the pleading does not provide any
    particulars of an express contract of retainer. Indeed, the thrust of the
    appellants pleading and arguments advanced on appeal is that the respondents
    act of providing advice with respect to the investigation gave rise to a
    solicitor-client relationship because case law has cloaked such communications
    with solicitor-client privilege. Given that approach by the appellants, I
    propose to treat their breach of retainer claim as part of their claim based
    on the alleged provision of negligence legal advice. I leave for another day a
    claim based on an express contract of retainer.



[2]

The investigation in this case predated the Supreme Courts
    decision in
R. v. Hart
, 2014 SCC 52, [2014] 2 S.C.R. 544.



[3]

As I explain below, following the hearing of the present
    appeal, this court released its decision in
Clark v. Ontario (Attorney
    General)
, 2019 ONCA 311, in which it held that prosecutorial immunity
    applied to negligence claims brought by police officers against Crown
    Attorneys. The motions judges decision in
Clark
pertaining to this
    issue was released on June 13, 2017 
i.e.
subsequent to the motions
    judges decision in the case at bar.



[4]
The
Anns/Cooper
test refers to the two-stage test for determining whether
    a duty of care should be recognized. It was set out by the House of Lords in
Anns
    v. Merton London Borough Council
, [1978] A.C. 728, and somewhat
    reformulated by the Supreme Court of Canada in
Cooper v. Hobart
, 2001
    SCC 79, [2001] 3 S.C.R. 537. I discuss this test in more detail later in my
    reasons.



[5]
British Columbia Prosecution Service,
Crown Counsel Policy Manual
,
    Charge Assessment Decision  Police Appeal, effective date March 1, 2018; New
    Brunswick, Office of Attorney General,
Public Prosecutions Operational
    Manual
, Chapter II  The Decision to Prosecute, Pre-Charge Screening,
    effective date November 21, 2017, at p. 5.



[6]
Indeed, the Durham appellants concede in their factum that they may have a
    defence based on good faith reliance on legal advice they received from Crown
    Attorneys pursuant to the Supreme Courts decision in
Fullowka v.
    Pinkertons of Canada Ltd.
, 2010 SCC 5, [2010] 1 S.C.R. 132, at para. 90.





[i]
Section 11 of the
Crown Attorneys Act
, R.S.O. 1990, c. C.49 reads as
    follows:

Duties
:

11 The Crown
    Attorney shall aid in the local administration of justice and perform the
    duties that are assigned to Crown Attorneys under the laws in force in Ontario,
    and, without restricting the generality of the foregoing, every Crown Attorney
    shall,

to examine informations, etc.

(a) examine
    informations, examinations, depositions, recognizances, inquisitions and papers
    connected with offences against the laws in force in Ontario that the
    provincial judges, justices of the peace and coroners are required to transmit
    to him or her, and, where necessary, cause such charges to be further
    investigated, and additional evidence to be collected, and sue out process to
    compel the attendance of witnesses and the production of papers, so that
    prosecutions may not be delayed unnecessarily or fail through want of proof;

to conduct prosecutions

(b) conduct, on the
    part of the Crown, preliminary hearings of indictable offences and prosecutions
    for indictable offences,

(i) at the sittings of the Superior Court of Justice where no law
    officer of the Crown or other counsel has been appointed by the Attorney
    General,

(ii) before provincial judges in summary trials of indictable offences
    under the Criminal Code (Canada),

in the same manner as
    the law officers of the Crown conduct similar prosecutions at the sittings of
    the Superior Court of Justice, and with the like rights and privileges, and
    attend to all criminal business at such courts;

special Crown counsel

(c) where a law
    officer of the Crown or other counsel has been appointed by the Attorney
    General, deliver to the Crown officer or other counsel all papers connected
    with the criminal business at the sittings of the Superior Court of Justice
    before the opening of the court and, if required, be present at the court and
    assist the Crown officer or other counsel;

cases brought by private
    prosecutors

(d) watch over cases
    conducted by private prosecutors and, without unnecessarily interfering with
    private individuals who wish in such cases to prosecute, assume wholly the
    conduct of the case where justice towards the accused seems to demand his or
    her interposition;

summary conviction matters

(e) where in his or
    her opinion the public interest so requires, conduct proceedings in respect of
    any provincial offence or offence punishable on summary conviction;

government prosecutions

(f) when requested in
    writing, cause prosecutions for offences against any Act of the Legislature to
    be instituted on behalf of any governmental ministry or agency and conduct such
    prosecutions to judgment and to appeal, if so instructed;

summary conviction appeals

(g) where in his or
    her opinion the public interest so requires, conduct appeals to the Superior
    Court of Justice for provincial offences and offences punishable on summary
    conviction;

justices of the peace

(h) advise justices
    of the peace with respect to offences against the laws in force in Ontario;

bail

where a prisoner is
    in custody charged with or convicted of an offence and an application is made
    for bail, inquire into the facts and circumstances and satisfy himself or
    herself as to the sufficiency of the surety or sureties offered, and examine
    and approve of the bail bonds where bail is ordered.


