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.