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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?