Civil litigators are sounding the alarm about a provincial bill they say will fundamentally and unfairly change the rules for malicious prosecution claims.
The good government act, currently in its third reading in the legislature, transfers liability from individual Crown attorneys to the attorney general for such suits.
The change aims to reduce the damage caused by frivolous accusations against individual Crown prosecutors and follows recommendations from the Uniform Law Conference of Canada.
Embedded in the minutiae of the bill, however, are a few provisions that give the attorney general procedural advantages and further immunize prosecutors from accountability, says Louis Sokolov of Sack Goldblatt Mitchell LLP.
For example, the bill removes the right to jury trials and allows the attorney general to withhold information and refuse to answer questions on the basis of public interest.
“These are very, very serious changes to the law that have been in place for generations,” Sokolov says.
“Crown attorneys wield extraordinary and immense power in the criminal justice system. One would hope that with this power comes a significant level of accountability.”
Until Nelles v. Ontario, Crown attorneys enjoyed absolute immunity from civil claims.
The Supreme Court of Canada’s 1989 decision in Nelles ultimately established a complex tort that paved the way for lawsuits if the prosecution was characterized as both malicious and lacking reasonable and probable cause.
Ever since, claims for prosecutorial acts have risen dramatically, according to Paul Cavalluzzo, who has acted on behalf of the Canadian Association of Crown Counsel.
In 2006 alone, there were 107 malicious prosecution lawsuits in Ontario, which has about 800 Crown attorneys in total, he says.
In a 2007 report, the law conference recommended removing the names of Crown attorneys as defendants from those claims altogether.
“Even in the absence of a finding of liability, the mere accusation of malicious prosecution can be demoralizing to both the individual named and to Crowns in general and be perceived as an impediment to a judicial appointment,” the report said.
“Making the attorney general solely liable would improve morale amongst Crowns and reduce the exposure they feel when personally named as a defendant.”
The pertinent section of the good government act, however, incorporates elements of a separate piece of legislation, the Proceedings Against the Crown Act, to impose limitations on discovery and examinations, says Sean Dewart, head of Sack Goldblatt’s civil litigation group.
In addition to eliminating juries from malicious prosecution trials, the bill allows the attorney general to “refuse to produce a document or to answer a question on the ground that the production or answer would be injurious to the public interest,” the legislation says.
“In an adversarial proceeding, you’ve got one side deciding what they’re going to answer and what documents they’re going to produce,” Dewart says.
He adds that the bill allows the deputy attorney general to designate who will be examined for discovery.
“They could decide to put in his superior or his receptionist or whoever they feel like.”
In an e-mailed response, the ministry said the concerns are unfounded.
“The prosecutor whose conduct is the subject of the claim will still normally be examined for discovery on the basis that that person is clearly the best source of evidence.
“In addition, the Crown will continue to be subject to the normal rules for inspection and discovery of documents. The Crown will continue to be entitled to refuse to produce a document where to do so would be injurious to the public interest.”
Dewart calls that response “disingenuous,” noting that under the rules of civil litigation, Crown attorneys facing a claim are not currently entitled to withhold documents.
And he objects to the way the province is trying to implement the changes.
“It’s legislation by stealth,” he says, noting the government buried the changes in an omnibus bill.
“It’s policy coming out of nowhere, and they’re saying it’s just a housekeeping bill.”
Dewart also alleges the government breached a duty to consult with the profession.
For his part, Sokolov is particularly concerned with the proposed elimination of jury trials.
“Any other professional that is subject to civil litigation can be subject to a trial by jury. Why is a Crown attorney so different?”
However, Cavalluzzo says juries are not in the best position to address the two key elements of a malicious prosecution first set out in Nelles.
“These two separate questions are legal questions better to be answered by a judge sitting alone rather than a jury,” he says.
And in response to objections that the defendant won’t have to produce certain documents, Cavalluzzo notes that the deputy attorney general must deliver a document list.
“Hopefully, we can rely on the deputy attorney general, rely on good faith. Otherwise, the whole system will break down.”
Sokolov says it’s the kind of provision that could be subject to abuse.
However, the concerns of civil litigators may be merely academic in light of the Supreme Court’s recent ruling in Miazga v. Kvello Estate, says James Morton, head of Steinberg Morton Hope & Israel LLP’s litigation group.
That ruling tightened the test for what qualifies as malice and declared that plaintiffs must demonstrate a prosecutor intended to subvert or abuse the judicial process.
“It’s almost impossible to imagine anyone ever succeeding in a malicious prosecution claim against the Crown,” Morton says.
As well, part of the concern with having juries try malicious prosecution cases is that they may award a claim on the basis that a plaintiff was merely the victim of a miscarriage of justice even in the absence of a deliberately improper purpose, Morton says.
“When you recognize you cannot succeed unless you have actual animus, the concern is that the jury might disregard the instruction of the court.”