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Judge rules police can cross-claim Crowns for negligent legal advice

Plaintiff charged and cleared in Mr. Big murder case
|Written By Alex Robinson

An Ontario Superior Court judge has ruled that Crown attorneys are not immune to a cross-claim by the police in a negligent investigation case.

Stuart Zacharias says an Ontario Superior Court judge’s decision means that if a man acquitted of murder’s claim against the police is successful, the Crown could be liable to indemnify the police.

In Smith v. Her Majesty the Queen in right of Ontario, Justice Wendy Matheson struck a claim against Crown attorneys by Alan Smith, who is suing the police for a negligent investigation after he was acquitted of murder. But Matheson allowed for part of a cross-claim by the police against the Crown attorneys, which alleged they had provided negligent legal advice in the investigation.

At issue was whether the Crown attorneys had statutory immunity in the claim and cross-claim. Matheson found that statutory immunity applied to Smith’s claim against the Crowns, as he was subject to a prosecution, but that it did not apply to the police’s cross-claim.

“It is plain and obvious that those claims have no reasonable chance of success,” Matheson said of Smith’s claims against the Crowns and the attorney general.

“However, the crossclaim by the police based upon negligent legal advice raises different issues.

Certainly, aspects of the relationship between these two parts of the criminal justice system have previously been considered, but not sufficiently to strike out this claim at the pleadings stage.”

Lawyers say the decision is an expansion on Crown attorneys on claims of negligence, as previously they could only be sued for malicious prosecution.

 “It’s been an area historically [where] there were restrictions and they seem to be opening it up to some degree,” says Kevin McGivney, a partner with Borden Ladner Gervais LLP, who represented the York Regional Police Services Board on the claim.

“This would be maybe a small step in that direction and the courts are grappling with how far they might wish to go.”

The investigation in question came out of the unsolved 1974 murder of Beverly Smith. The murder victim was not related to Alan Smith, but she was his neighbour at the time of her death.

Police originally were not able to charge anyone with the homicide, but they reopened the case in 2007 and focused their investigation on Smith.

Police arrested him in 2008, as his former wife had given a statement implicating him, but charges were later dropped that year. Under the alleged advice of Crown attorneys Michael Hill and John Scott, the Durham Regional Police Service conducted a year-long investigation — called a Mr. Big operation — that is the subject of Smith’s claim. Smith’s claim alleges that a York Regional Police investigator was also involved in the investigation.

In the operation, an undercover officer befriended Smith and drew him into criminal activity, before introducing him to “Mr. Big,” who was another undercover officer posing as a bigger criminal. The undercover investigators then involved Smith in a fake murder and told him to give them information that could be used against him.

He confessed to the Beverly Smith murder, but the confession “was at odds with known evidence,” the decision said.

Smith was charged with the murder in 2009 and was in jail until 2014, when a judge excluded the confession as evidence. He was later acquitted.

After Smith sued both police forces and the Crown attorneys involved in the investigation, Durham police brought a cross-claim against the Crowns for negligent legal advice and breach of retainer.

Smith’s statement of claim said Scott was an integral part of the planning, supervision and execution of the investigation and that Hill was similarly involved.

Scott urged police to continue investigating Smith after the charges were withdrawn in 2008, the claim alleged.

The Durham police’s cross-claim said the Crowns advised them to arrest Smith in 2009 and that they never suggested that any of the tactics used in the investigation might impede a prosecution. They added that they would not have proceeded with the operation otherwise.

The York Regional Police had not yet brought their own cross-claim against the Crown attorneys, but McGivney says they will likely do so.

The police said their relationship with the Crown attorneys was a solicitor-client relationship. The Crowns argued that their relationship is characterized by mutual independence.

Matheson struck down part of the cross-claim for breach of retainer, but she allowed the cross-claim for negligent legal advice.

“The availability of solicitor-client privilege is an important characteristic of the relationship between a lawyer and his or her client,” Matheson wrote in the decision.

“This is acknowledged by the moving parties, who agree that the advice given to the police is the subject of solicitor-client privilege and refer to the police in the written submissions as the “client.”  And ordinarily, a client can sue his or her lawyer for negligent legal advice.”

Matheson’s decision means that if Smith’s claim against the police is successful, the Crown could be liable to indemnify the police, says Stuart Zacharias, the lawyer representing the Durham police.

“The only reason this investigation proceeded as it did was based on that legal advice,” says Zacharias, who is a partner with Lerners LLP.

The Crowns successfully argued that statutory immunity applied to Smith’s claim against them, saying only a claim of malicious prosecution can be brought against them if they knowingly pervert the course of justice.

Smith’s claim was also struck because he was subject to a prosecution. But the police were never subject to a prosecution, so the cross-claim can go ahead, the judge ruled.

Sean Dewart, a partner with Dewart Gleason LLP, says the decision brings a welcome relaxation of the law that requires Crowns to account for harm that is caused by their proven misconduct. He added that relaxation has unfortunately come at the price of furthering the idea that Crowns are counsel for the police.

“This comes perilously close to saying that Crown attorneys are advocates for the police, which is an odious proposition,” says Dewart, who did not act in the case.

“It is also entirely inconsistent with the idea that Crown prosecutors are quasi-judicial ministers of justice, and thus entitled to immunity.

“The pieces don’t fit together.”

Richard Posner, of Lockyer Campbell Posner, who represented the plaintiff, was not available for comment.

Sean Driscoll, a spokesman for the Ministry of the Attorney General, declined to comment as the matter is still subject to litigation, but he said the provincial government has until Dec. 21 to file a notice of motion seeking leave to appeal the decision not to strike the cross-claim.

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