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Clouds pass by the Supreme Court of Canada in Ottawa, on June 12, 2020.Adrian Wyld/The Canadian Press

Police cannot sue prosecutors over how they conduct their prosecutions, even when the prosecutors abuse their power and allow lies to stand about police conduct, the Supreme Court of Canada ruled 8-1 on Friday.

In the first case of its kind to reach the top court, the majority said prosecutors’ immunity from lawsuits extends beyond the police to include “almost all cases” of third parties, such as witnesses and complainants. That leaves only accused persons with the right to sue, if they can meet the high standard of proving malicious prosecution. The court deems them “uniquely vulnerable” to abuse of prosecutorial power.

“If you permit police to sue Crown prosecutors, it certainly suggests to the public that the police are trying to police the prosecution through the back door,” said Paul Cavalluzzo, who represented the Canadian Association of Crown Counsel and the Ontario Crown Attorneys’ Association, which intervened in the case.

And permitting lawsuits by third parties such as complainants in sexual-offence cases and witnesses would “open the floodgates,” he said in an interview, and leave prosecutors “more concerned about being sued than prosecuting the case.”

The decision came in a 2009 case in which three Toronto police officers sued the Ontario Attorney-General, saying three provincial prosecutors did not ask them to give evidence denying allegations from two men accused of robbery and forcible confinement that the officers had assaulted them during an arrest.

The two accused men had their charges thrown out, and the three officers, Jamie Clark, Donald Belanger and Steven Watts, members of the Hold Up Squad with over 70 years’ combined experience, were denounced for “brutality” by a trial judge and an appeal court. But they never had a chance to testify or present arguments in court. The officers said the accusations had caused them irreparable harm, and they sued for $750,000 each for negligence, misfeasance and other damages. The Ontario Court of Appeal had ruled 3-0 that they could sue but only for misfeasance – deliberate, unlawful conduct likely to cause harm. The Ontario Attorney-General appealed that ruling to the Supreme Court.

The Supreme Court did not rule on the substance of their claim, but only on whether they had the right to sue. The court said allowing police to sue prosecutors could cause deep harm to the justice system. Police and prosecutors are independent from one another, they said; police investigate crime, while prosecutors’ role is to protect the public interest. Miscarriages of justice such as the murder convictions of Donald Marshall Jr. in Nova Scotia in 1971 and Guy Paul Morin in Ontario in 1992 have occurred when prosecutors failed to maintain objectivity and were in too close contact with police, the court said.

“The police certainly have a legitimate expectation and interest in their reputations not being unfairly impaired,” Justice Rosalie Abella wrote for the majority. “But the solution cannot be to make prosecutors accountable to them in a way that obliterates the independence between the police and prosecutors and is inconsistent with the Crown’s core public duties to the administration of justice and to the accused.”

In a strong dissent that came with its own table of contents, Justice Suzanne Côté said that police, like anyone else, are entitled to equality before the law. She cited the 1959 Supreme Court ruling in Roncarelli v Duplessis, in which Quebec premier Maurice Duplessis himself was held personally liable for ordering the revocation of a restaurant’s liquor licence, part of a provincial campaign against Jehovah’s Witnesses.

And the three officers themselves, she wrote, were treated as if convicted, but without a trial: “Such serious findings may thus have a deleterious effect on their right to liberty and security, their right to dignity and a good reputation, and their mental health – just like criminal charges may have on an accused person.” Unlike the majority, which made no criticism of how the officers were treated, Justice Côté suggested the prosecutors had bungled the case.

Michael Lacy, a lawyer representing the officers, said they had sued because they had been falsely accused, and can move forward “now that the falsehoods have been exposed and the public record more accurately reflects reality.”

He said the court’s decision to grant prosecutors immunity against third parties “leaves those injured by bad faith and deliberate malicious acts’” with no way to seek redress for those wrongs.

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