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The alarming danger in the Nelles ruling

Globe and Mail Update

The decision by the Ontario Court of Appeal in June confirming an absolute immunity against civil prosecution for the Attorney-General of Ontario and Crown attorneys should have produced more consternation in habitually demonstrative civil rights circles than it has. Mr. Justice Donald Thorson, speaking on behalf of a distinguished court, decided against the right of Susan Nelles to take the former Attorney-General of Ontario to trial to determine whether he and his Crown attorneys had prosecuted her negligently or maliciously. In doing so, he took us all a giant step toward entrenchment of a concept that Thorson himself described as "troubling" and "difficult". His Lordship verges on understatement.

Despite faint disclaimers, the effect of the judgment, if it is applied without significant variation, will be to elevate to a position of unlimited authority a prosecutorial elite, disenthralled of the legal restraints that govern everyone else in our society, putting them effectively above the law, and practically free to harass, persecute and defame whomever they wish for as long as they please. In Ontario, most prosecutors are surely reasonably benign and able. Some are not. Thorson's reasoning in removing the principal disincentive to malicious and negligent abuse of prosecutorial powers impresses me, with respect, as sincere but inadequate.

A good deal of rather tortuous argument had to be employed to get Crown attorneys out from under Ontario's Proceedings Against the Crown Act, which defines the circumstances in which Crown representatives can be sued but prohibits suits against them for "anything done in the due enforcement of the criminal law." Thorson denies that a Crown attorney "whose conduct is actuated by malice cannot be considered to be engaged in the due enforcement of the criminal law." He holds instead that if only proper or rightful conduct is intended to be protected by the statute it should not have been "necessary to shield the Crown from liability" for such conduct as "could scarcely be tortious in the first place."

It seems to me at least as arguable that the Crown is here protected against vexatious lawsuits where its conduct has not been tortious, in the absence of any evidence weightier than the judge's surmise that the statute is intended to liberate the Crown from the consequences of its own misconduct. It also seems strange that an act intended to facilitate proceedings against the Crown could be interpreted so as to prevent such proceedings where representatives of the Crown have acted maliciously and outside the scope of their authority. In furtherance of his viewpoint, Thorson invokes a peculiar interpretation of the Supreme Court of Canada decision in the Roncarelli case, in which Maurice Duplessis was found liable for ordering the head of the Quebec Liquor Board to revoke Frank Roncarelli's liquor licence because of Roncarelli's championship of Jehovah's Witnesses. It is Thorson's view that Duplessis "had not acted in the exercise of any of the powers of his office," and had acted "entirely outside any of his legal functions." Does His Lordship imagine that if Duplessis had not been Premier and Attorney-General of Quebec he could have successfully ordered the cancellation of Roncarelli's liquor permit, and does he imagine that malicious or negligent (as opposed to merely mistaken) prosecution is within an A-G's "legal functions?"

The core of the case is the status of the Attorney-General's alleged immunity at common law. Thorson relied on the argument that the administration of justice would be severely impaired if prosecutors and police had to be fearful of lawsuits in the event that they did not achieve convictions. He cited two Canadian and two U.S. cases, which themselves rely on a Scottish and a number of other U.S. decisions. Thorson commendably cited a British obiter dictum and articles written by two Canadian law professors against an absolute Crown immunity, as well as the reservations of Mr. Justice Lawrence Pennell (a former federal Solicitor-General), with all of which he expressed considerable sympathy. Thorson's wrestling match with his conscience was not resolved without some inconsistencies. Thus, having implicitly criticized the reasoning behind Duplessis' assault on the Jehovah's Witnesses (Quebec's traditional notion of the pre-eminence of the collective rights of the majority as defined by the provincial government, over the rights of individuals, a concept that was invoked in favor of the Duplessis Padlock Law and the Bourassa and Levesque language legislation), Thorson relies on a variant ofthe same reasoning for his judgment. He approvingly cites a lower court judge's confident view that "the rule as to immunity is obviously designed not for the protection of the public Crown officials, but for that of the general public.... Any injustices which may result to a litigant from improper actions on the part of such Crown officials must be deemed secondary to the primary general interest of society as a whole." Why they must, His Lordship does not adequately explain.

Instead, he relies upon two U.S. judges, Learned Hand and Lcwis Powell, to provide the arguments for him. Hand distinguished an absolute immunity from an absolute absence of an immunity. He did not, as quoted, address the question of a qualified immunity and stated that "there must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors."

The relevance of Hand's judgment is not clear since neither Susan Nelles' lawyer, John Sopinka, nor anyone else to my knowledge has proposed anything of the kind. The lengthy excerpt from Powell's judgment on behalf of the U.S. Supreme Court is a powerful argument. "To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system."

Powell went on to emphasize "that the immunity of prosecutors from liability in suits does not leave the public powerless to deter misconduct or to punish that which occurs..... Moreover, a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers." In quoting and endorsing all of this, Thorson applauds the alleged fact that "there are other forces at work which can and do serve to check prosecutorial excesses." Little attention is paid to what or where those "forces" might be.

In his decision, Thorson endorses a lower court judgment including the reflection that "the fundamental rights and responsibilities of public prosecutors in the Anglo-American system of criminal law are substantially the same in all jurisdictions." Yet in distinguishing the concerns about absolute immunity of a law professor whom he cited, he writes that his comments are mainly about "the office, in England, of the Director of Public Prosecutions for which there is no equivalent to be found in Canada." In fact, the Canadian system is easily distinguished from the British, where the Attorney-General does not sit in the Cabinet, and the U.S. system, where many prosecutors are subject to regular direct elections and reckless and vindictive prosecutions can produce electoral incompatibilities. In Canada, we have neither the disinterested professionalism of the British system nor the direct political accountability of the American. Finally, Thorson states: "In my opinion the invitation to find a qualified immunity is an invitation that ought not to be accepted by this Court." That is puzzling as, after a good deal of conscientious misgivings, he accepts the Attorney-General's invitation to find an absolute immunity. In the absence of unambiguous relevant legislation, precedent or learned opinion, the Court of Appeal of Ontario might better have left it to the legislators to decide.

If the federal and provincial parliaments want an absolute immunity for Crown attorneys, they should legislate it themselves, after suitable public discussion. Obviously the administration of justice must be fearless and efficient, but it should not be beyond the wit of man to design a qualified immunity, with a procedure for leave to sue after discharging a very onerous burden of proof for establishing a reasonable probability of malicious or grossly negligent prosecution. Failing that, we should emulate the better aspects of the British or U.S. systems.

The present state of affairs is quite unsatisfactory and Thorson's honest, laborious but uneven efort to address it is a dangerous invitation to open-ended abuse. The only rays of hope, apart from the Supreme Court of Canada, are that the police are not excused from responsibility as effortlessly as the Crown attorneys, and that the Charter of Rights was deemed not to be in force when the facts of the Nelles case arose and so the Charter's implications were not adjudicated.

Finally, there is an unflattering message in all of this for Canada.

If Crown attorneys are now to be officially designated "quasi-judicial" as the Court of Appeal, with extensive precedent, suggests--and if Crown attorneys may indulge the caprices of the most venal and base of their own number with nothing but their notoriously ineffectual methods of self-regulation and Thorson's mysterious "forces" to avenge wrong-doing, the implications, with a little imagination, could be horrifying. Where are the expressions of concern in the liberal political community, among the bar, news media and civil liberties groups? Where are the weighty commentaries of our great newspapers, including The Globe and Mail, or the antics of those who have made a cottage industry of histrionically denouncing Americans, corporations, landlords, and bogey persons of every hue and description? Where in this complaisant country is the responsible social comment this question requires?

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