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Prosecutorial Immunity and the Canadian Criminal Justice System - Jamie Robertson

The case of Ontario (Attorney General) v. Clark (“Clark”) allowed the Supreme Court of Canada to address an important question that had yet to be discussed in current case law: can the police sue Crown prosecutors for how they conduct a case?[1] In a majority decision with eight Justices agreeing, the Court found that Crown prosecutors have immunity from claims brought by police officers during a criminal proceeding.[2]


In this case, three Toronto police officers arrested two individuals accused of armed robbery.[3] Following the arrest and before the trial, one of the accused claimed that the officers had beaten him during the arrest. The accused filed an application to stop the proceedings and to exclude the confession he had made after the arrest.[4] The Crown prosecutors on the case agreed the confession was not admissible and did not pursue the charges against this accused.[5] Notably, the other individual accused was convicted; however, it was with a reduced sentence due to him also alleging an assault by the police officers who made the arrest.[6] The Crown prosecutor on the case did not require evidence of these assaults and agreed that the assaults by the police officers occurred.[7] This case was then reported by the media and resulted in the Toronto Police Service Professional Standards Unit conducting a review of the allegations. It was concluded that the misconduct could not be proven.[8] As a result of this chain of events, the police officers filed a lawsuit against the Attorney General, claiming they had suffered irreparable harm to their reputations and creditability because the Crown prosecutors did not call for evidence of the police brutality.[9]

In a decision with only one Justice dissenting, the Supreme Court of Canada decided that Crown prosecutors cannot be sued for how they conduct a case for several reasons. First, there is the concept of “prosecutorial immunity,” meaning that the Crown cannot, in general, be sued for their actions, excluding a person who claims they were wrongfully and maliciously prosecuted.[10] Second, breaching this immunity and allowing police officers to sue prosecutors for their decisions in criminal proceedings may put them in a conflict between independence and objectivity in ensuring a fair trial for the individual accused, whilst attempting to maintain the integrity of the criminal justice system.[11] Finally, the Supreme Court of Canada stated that allowing the police to sue the Crown would conflict with the need for an independent relationship between the police and the Crown.[12] With this in mind, the general rule that the Crown cannot be sued by the police was established.


Prosecutorial immunity is essential to ensure the integrity of the criminal justice system.[13] There needs to be a somewhat independent relationship between the Crown prosecutor and the police in order to ensure both of their duties can be fulfilled without improper influence becoming an issue. If, for example, the police could sue the crown, this may open a floodgate scenario where anytime the Crown chooses not to follow through with certain charges, the police could sue. This would interfere with the criminal justice system as we know it, as there is a presumption of innocence; having the police be able to put pressure on the Crown to follow through with charges in circumstances where there is not enough evidence could cause significant issues. The Crown could resort to always upholding charges to preserve themselves from the harm of being sued. Thus, the criminal justice system would move away from the focus on the accused and, rather, become a self-preservation situation, which we would not want. As stated by the Supreme Court of Canada, “fear of civil liability may lead to defensive lawyering by prosecutors, with the result that their decisions will be motivated less by legal principle than by a calculated effort to ward off the spectre of liability."[14]

Justice Abella also discussed how disregarding the immunity of the Crown and allowing them to be accountable to police officers puts them in a position of conflict with their public duties, including their duty to be objective, independent, and maintain integrity when ensuring a fair trial for the individual accused.[15] This further demonstrates that we cannot have a conflict of public duties, as this would impact the criminal justice system’s integrity. While the frustrations of the police officers in this case were heard, specifically by Justice Côté who dissented, the overarching general question of whether the police may sue crown prosecutors was paramount in this case.

Future implications

We see this case being used in other situations to affirm the important independence between the Crown and police officers. This was exemplified in the case of Klassen v British Columbia (Minister of Public Safety and Solicitor General) where Justice Griffen followed the decision made in Clark and further enforced this distinction. In this case, it was important to distinguish between the constable involved in the case and the Crown prosecutor on trial.[16] Another case closely following the decision of Clark is R. v. Baptiste, where the Quebec Court of Appeal further outlined the importance of safeguarding the role of the Crown as the protector of public interest.[17] These cases demonstrate the importance of the conclusion found in Clark, exemplifying that the independence between the Crown and police officers is clearly important to the functioning of our criminal justice system.

The future implications of this Supreme Court decision include a reinforced concept of prosecutorial immunity, as well as a safeguard for Crown prosecutors. It was decided that Crown prosecutors do not owe specific legal duties to the police for the ways in which they carry out their role in the criminal justice system.[18] This has the future implication of allowing the Crown to focus on their role in a criminal trial and for the police to focus on theirs; this allows for each of the parties to maintain their independent and respective roles. With the police unable to sue the Crown for how they go about a prosecution, the accused is left with the ability to do so only under the malicious prosecution civil lawsuit.


From the perspective of police officers, I can see that this decision may cause frustration, as it leaves them with almost no opportunity for officers who believe an error has been made or have been harmed by a Crown decision to pursue court action. However, I think the ability to sue the Crown would be overused if this was the precedent, and it would overall be damaging for the balance of the criminal justice system. I believe that it would be dangerous for police officers to possess the power to sue the Crown, as this would add an element of potential retaliation to cases that officers disagree with. Furthermore, there is always the option for an accused to sue the Crown for malicious prosecution if necessary; solutions are still available in cases believed to be grossly mishandled.

I believe the Supreme Court of Canada made the right decision in this case. While I acknowledge that the police officers, in this case, experienced harm to their reputation, there would be more harmful implications if the police were able to sue the Crown. As previously discussed, this would impact the way the Crown goes about a case and would thus have an impact on the accused. The overall functioning of the criminal justice system needs to be the priority when deciding cases such as the one at hand, and I believe the Supreme Court of Canada took this into account. The Clark case allows the Crown to maintain objectivity in their work and further enforces the separation of the Crown from police functions, thereby safeguarding these critical judicial elements.[19] With this in mind, I believe the Clark decision holds great significance in maintaining the continued integrity of the Canadian criminal justice system.

[1] Ontario (Attorney General) v Clark, 2021 SCC 18 at para 4 [Clark]. [2] Ibid. [3] Ibid at para 1. [4] Ibid. [5] Ibid at para 2. [6] Ibid. [7] Ibid. [8] Ibid. [9] Ibid at para 3. [10] Ibid at para 35. [11] Ibid at para 56. [12] Ibid at paras 40-41. [13] Ibid at para 30. [14] Ibid at para 118. [15] Ibid at para 61. [16] Klassen v British Columbia (Minister of Public Safety and Solicitor General), 2021 BCCA 29 at para 34. [17] R v Baptiste, 2021 QCCA 1064 at para 71. [18] Clark, supra note 1 at para 47. [19] E G Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed (Toronto: Thomson Reuters Canada, 1988) (loose-leaf updated 2022) ch 12 at 10.50.


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