|Previous cases have addressed bad faith or improper purpose, but not mere negligence of prosecutors, says David Robins.|
Driskell is seeking $20 million in damages against the Crown and the police, based on seven different causes of action, including conspiracy between the Crown and police, fraudulent and negligent misrepresentation by the Crown, negligence by the Crown in failing to disclose relevant information, malicious prosecution, and breach of his s. 7 and s. 11(d) Charter rights. A claim by his mother, Florence Driskell, is based on the torts of conspiracy and misfeasance in public office.
Driskell was released in November 2003 and he and his mother filed a wrongful conviction claim against 21 defendants - including Manitoba’s attorney general, Crown prosecutors, and police - in February 2006.
This past February, former Ontario Superior Court chief justice Patrick LeSage released a report from his inquiry into Driskell’s case. It said members of the Winnipeg Police Service failed to relay important information to Driskell’s lawyers before, during, and after his trial.
LeSage also said Winnipeg police Chief Jack Ewatski contributed to the miscarriage of justice by not releasing a report that he prepared as an inspector in 1993 once he became chief in 1998. That report included information casting doubt on Driskell’s guilt, but it was not given to Driskell’s lawyers for a decade. It does not suggest anyone be charged criminally for what happened to Driskell.
Shortly afterwards, Manitoba Attorney General Dave Chomiak apologized to Driskell and offered a $250,000 good faith payment. Driskell’s negligence suit is seeking $20 million in damages.
The Crown and the police filed motions at the Court of Queen’s Bench of Manitoba to strike portions of Driskell’s negligence claims, questioning whether claims of negligence can be brought against the Crown and police for failing to disclose evidence to the defence.
According to court documents, Driskell claims if the information, which related to testimony and credibility of two witnesses, had been disclosed in a timely way, he would not have been convicted of murder, or problems with the conviction could have been discovered sooner, leading to the conviction being quashed earlier.
Crown attorneys in the case claimed that they had both statutory and common law immunity from negligence claims, and argued that a prosecutor owes no duty of care to an accused person and that this goes against the “adversarial process in which a prosecution takes place.”
However, in a June 13 ruling, Justice Shawn Greenberg decided not to strike the portions of the claim alleging negligence by prosecutors, finding that they have no such immunity for the conduct alleged in the claim. She concluded that the duty of care of the prosecutor towards an accused is an “unsettled issue that should be resolved with the benefit of a full factual record.”
The portion of Florence Driskell’s claim that alleged lost care, support, and companionship, was struck.
“As I have found that there is no settled law on whether claims in negligence can ever lie against Crown prosecutors, ultimately the court in this case will have to decide whether there is a duty of care on the prosecutor,” said Greenberg.
David Robins, of Windsor, Ont., firm Sutts Strosberg LLP, counsel for the Driskells, notes that prior to these reasons, many people were under the impression that the 1989 Supreme Court of Canada case of Nelles v. Ontario held that Crown attorneys could never be sued in negligence because of a common law immunity.
“That came out of that case, which basically said that only where there’s been bad faith or an improper purpose, such as in a malicious prosecution action, those are the only types of civil action that can survive a Crown immunity defence,” he says.
“In this particular case, Justice Greenberg concluded that there may be causes of action where bad faith is not alleged, there hasn’t been an improper purpose, but rather, it’s been mere negligence in the failure to fulfil a prosecutorial duty and those are not the types of causes of action that ought to be struck on a preliminary motion.”
He adds that this is not a judgment and the question of whether the prosecutors in the case were negligent is an issue that still must be determined by a trial judge.
“For Mr. Driskell, all of his causes of action remain intact and he’s entitled for those issues to be considered by the trial judge,” he says.
Robins adds that there is a distinction to be made between discretionary decisions and duty, “as long as that decision has been made in good faith, then there is potentially some common law immunity and such an action very well may be struck, but where it’s a duty, it’s not a matter of discretion and in this case, we say it’s a duty to disclose.”
However, Jay Prober, counsel for Crown George Dangerfield, told Law Times, “There is a concern, which is even acknowledged by the trial judge . . . namely, that this may well open the floodgates to a lot of lawsuits against prosecutors across the country.”
“It’s not just of interest to our jurisdiction, but it should be a concern to prosecutors across the country,”
Prober says that the defendants are “very actively” considering an appeal.
Chris Wullum, counsel for for former Manitoba assitant deputy attorney general Stuart Whitley, says he is not in a position to comment on the decision.