'Uneasy Lies The Head That Wears A Crown': Crown Immunity In Canada

Are the police able to sue the Crown for negligence?

As a former in-house lawyer for the Metropolitan Police in London, I am well aware of the importance of a strong, co-operative relationship between police and the Crown. It is crucial for information-sharing and ensuring a consistent approach to prosecutions.

However, it can sometimes be a fraught relationship: although co-dependent, police and prosecutors have their own priorities and objectives. They often co-operate well, but errors or miscommunications may prevent them from working together effectively.

In the recent decisions of the Ontario Court of Appeal, Clark v. Ontario (Attorney General)1 and Smith v. Ontario (Attorney General)2, police took issue with the Crown's actions at different stages of the criminal justice process, and commenced proceedings against the Crown for negligence. These two decisions highlight the issue of Crown immunity, which is generally difficult to challenge, and poses the question: should the Crown be immune from claims of negligence by police, and if so, to what extent?

These decisions also raise some interesting issues for insurers, particularly in respect of whether the police can avoid or limit their liability for negligent investigation by pointing the finger at the Crown.

To the relief of the many heads that wear the Crown, the Court has decided to uphold their immunity.

Laying the Groundwork

In order to understand the position taken by the Court of Appeal, let us first consider the history of Crown immunity in Canada.

The Supreme Court of Canada has clearly stated that the Crown is immune from civil liability except in circumstances where it has:

acted with malice in the context of a malicious prosecution claim3; and intentionally withheld disclosure in a criminal proceeding contrary to an accused's legal right to disclosure.4 Clark and Smith - a Novel Approach?

In Clark and Smith, the Court of Appeal revisited Crown immunity, specifically in the context of police services alleging negligence by the Crown.

Clark

In Clark, police officers sued the Attorney General, alleging that the Crown Attorneys, who had prosecuted the accused, had been negligent and misfeasant because they had failed to adequately investigate assault allegations by the accused against the investigating police officers, and to call evidence to refute those allegations.

On a motion by the Attorney General, the judge struck the negligence claim. The officers appealed, arguing...