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The Federal Prosecution Service DESKBOOK

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Part X
EMPLOYMENT RELATED ISSUES
Chapter 49

Table of Contents

49 CIVIL LIABILITY OF CROWN COUNSEL

49.1 Introduction

Prosecutors must be free to exercise their important discretionary powers independently, without fear of personal or financial retribution. Former Supreme Court Justice Peter deC. Cory has described the prosecutor’s responsibilities in the following way1:

The Crown prosecutor must proceed with the case against the accused fairly and courageously. Prosecutions must proceed even in the face of threats and attempts at intimidation. These insidious threats can on occasion extend to family members. Despite these threats and the danger in which the Crown and at times the family of the Crown are placed, charges must still be vigorously prosecuted. They must be brought to trial and prosecuted with diligence, dispatch and fairness. ...Crown Counsel must be of absolute integrity and above all suspicion of favouritism or unfair compromise.

Among the challenges that may be faced by Crown counsel is the fact of, or threat of, civil actions. In Nelles v. Ontario, [1989] 2 S.C.R. 170, the Supreme Court of Canada held that prosecutors were not immune from being sued for malicious prosecution. To succeed, a plaintiff must prove that:

  1. the prosecution was initiated by the defendant;
  2. the prosecution was terminated in favour of the plaintiff;
  3. the prosecution was initiated without reasonable and probable cause; and
  4. the defendant was motivated by malice, or a “deliberate and improper purpose” 2.

Since the Nelles decision, there have been a number of reported cases concerning malicious prosecution actions against prosecutors, most importantly, the Supreme Court’s decision in Proulx v. A.G. Quebec3. The subject has also attracted considerable academic interest4. This policy is intended to help ensure that Crown counsel who act in good faith and adhere to the guidelines in the Deskbook are protected from the financial costs associated with civil actions.

49.2 Purpose of the Policy

The purpose of this policy is to inform Crown counsel of their rights and obligations when faced with a civil suit, or the threat of a civil suit, for actions taken within the scope of counsel’s employment.

This policy is also intended to give further guidance as to how the governing Treasury Board policy on indemnification and legal assistance5 applies to Crown counsel.6

While not specifically defined in the Treasury Board policy, “indemnification” means securing Crown servants against personal financial liability; “legal assistance” means the provision of legal counsel (usually a lawyer employed in the Department of Justice7) and the payment of legal costs.8

49.3 The Applicable Test

The Treasury Board policy sets out a four-part test for determining whether a Crown servant qualifies for indemnification/legal assistance. It offers indemnification for Crown servants who acted “honestly and without malice within their scope of duties or employment and met reasonable departmental expectations”. The Department has interpreted the test as requiring coverage of those acting:

  • in good faith9;
  • within the scope of their employment.

Crown counsel acting in accordance with the guidelines in the FPS Deskbook can expect to qualify for indemnification/legal assistance. Mere errors in judgment will not be treated as disqualifying counsel from coverage. As well departure from the guidelines will not result in denial of coverage if: a) the departure was not a serious one; or b) the departure was a justifiable one.

This policy should also be interpreted in accordance with the principle expressed in the Treasury Board policy as follows:

Failure to assist servants who have been placed at risk in the performance of their duties may lead to reluctance on the part of other servants to expose themselves to similar risks.

49.4 Applicability of the Policy

Crown counsel may make a written request for coverage when, arising from the performance of their duties, they are:

  1. required to appear before, or to be interviewed in connection with a judicial or investigative or other inquest or inquiry;
  2. sued or threatened with a suit;
  3. charged or likely to be charged with an offence; or
  4. faced with other circumstances that are sufficiently serious as to require legal assistance.10

49.5 Procedure

The request for indemnification/legal assistance must be dealt with expeditiously. The steps in the procedure are as follows:

  1. Crown counsel must inform their manager (for most counsel the FPS Director) at the earliest reasonable opportunity of the possibility of a proceeding;
  2. Crown counsel must request indemnification/legal assistance in writing;
  3. The request must contain full disclosure of the actions which led to the allegation (while the disclosure need not be lengthy, it must be sufficient to permit management to determine that counsel was acting in good faith within the scope of employment); and
  4. Crown counsel’s manager must forward the request, along with the manager’s recommendation, to the Deputy Minister through the ADAG (Criminal Law), and send a copy of the request to the ADAG (Civil Litigation). If the approval of the ADAG (Criminal Law) is obtained, it will be sent, along with the ADAG’s recommendation concerning the satisfaction of the two criteria (good faith/within scope of employment), to the Associate Deputy Minister responsible for making the decision to indemnify/provide legal assistance11. If that approval is obtained, the ADAG (Criminal Law) will inform counsel in writing that indemnification/legal assistance will be provided at public expense;
  5. A decision to provide indemnification/legal assistance is final. It will only be revisited if it is discovered that Crown counsel provided false or misleading information in the initial report, failed to provide relevant information, or was not acting within the scope of their employment—in such instances the Treasury Board policy requires that payments be recovered;
  6. If legal assistance is to be provided, normally Department of Justice counsel will be assigned to handle civil proceedings12. If there is an actual or potential conflict of interest private counsel will be retained at public expense. This may arise, for example, where there is a conflict between the interests of counsel and the government such that an appropriate solicitor-client relationship cannot be preserved.

    Crown counsel who believe there is a conflict of interest should raise the matter first with the assigned counsel. If the matter is not resolved to Crown counsel’s satisfaction, it should be raised in writing with the ADAG (Criminal Law).

    If the Crown counsel chooses to retain private counsel and, in the opinion of the Department there is no conflict, the servant will normally be responsible for payment of any resulting legal fees, costs and judgment13.

    However, if the ADAG (Criminal Law) feels there are extenuating circumstances, he or she may recommend to the Deputy Minister that a submission be made to Treasury Board for full or partial reimbursement;
  7. To ensure the full co-operation of the public servant, the Treasury Board policy provides that counsel appointed by the Attorney General to conduct the defence shall, to the extent possible consistent with counsel's obligation to protect the interests of the Crown, treat all communications with the servant in confidence. Justice counsel can therefore use the information provided by the servant in developing a defence strategy, but the Department cannot use such information in any disciplinary action against the Crown counsel;
  8. Assigned counsel will be instructed to keep Crown counsel well-informed of the status of the proceedings.14

49.6 Review of Conduct

A decision to indemnify/ provide legal assistance does not exclude the internal review of Crown counsel’s conduct.

49.7 Threatened Proceedings

It should be emphasized that Crown counsel must report threats of the initiation of civil proceedings to their manager. The making of such threats is a serious matter and the manager should take action, where appropriate.

49.8 Monitoring Proceedings

The Assistant Deputy Attorney General (Civil Litigation) has set up a special practice group to share information and expertise in malicious prosecution matters. Crown counsel and/or their managers should ensure that the ADAG (Civil Litigation) is made aware when an action is initiated, as required in para. 49.5(d).15

49.9 Record Keeping

Because decisions made by Crown counsel are increasingly becoming the subject of challenge, Crown counsel are encouraged to put notes on files of the reasons for decisions that might reasonably be expected to be the subject of future litigation. This may include, for example, the assessment of the “reasonable prospect of conviction” or “public interest” factors in the decision to prosecute,16 or oral advice to the police in sensitive cases.

49.10 Further Information

Managers seeking further information on the operation of the policy should consult the Office of the Corporate Counsel in Justice Headquarters.

1 The Inquiry Regarding Thomas Sophonow (The Honourable Peter deC. Cory, Commissioner). Winnipeg: Government of Manitoba, 2001, p.39.

2 Nelles v. Ontario, at 192-193.

3 [2001] 3 S.C.R. 9. Proulx, established, inter alia, that the Nelles test was applicable in actions brought under the Quebec Civil Code. For other examples of malicious prosecution actions, see: André c. Québec (Procureur général), [1999] J.Q. No. 4213 (C.S.); Milgaard v. Kujawa, [1994] S.J. No. 439 (C.A.); Dix v. Canada (A.G.), 2002 ABQB 580

4 L. Sossin, “Crown Prosecutors and Constitutional Torts: The Promise and Politics of Charter Damages” (1994), 19 Queen’s L.J. 372; J. Sopinka, “The Tort of Malicious Prosecution: Current Scope and Future Directions” (1995), 74 Can. B. Rev. 366; D. Butt, “Malicious Prosecution” (1996), Can. B. Rev. 335.

5 “Policy on the Indemnification of and Legal Assistance for Crown Servants.” (http://http://www.tbs-sct.gc.ca/pubs_pol/hrpubs/TB_851/pila_e.asp) hereinafter “the Treasury Board policy”.)

6 Because the definition of “Crown Servant” in the Treasury Board policy excludes legal agents, where an agent seeks indemnification/legal assistance from the government rather than a private insurer, and the Department of Justice determines that it is in the government’s interest, a submission to Treasury Board for an exception to the policy must be made.

7 Private sector counsel may be retained in unusual circumstances, such as where a conflict of interest arises.

8 Note that the Treasury Board policy does not provide either indemnification or legal assistance where a Crown servant institutes a civil action. Any proposed departure from this general rule would have to be the subject of a special submission to Treasury Board.

9 The Supreme Court of Canada has held that “an official action which is undertaken in bad faith or for improper motives is not within the scope of the powers of the Attorney General”: Krieger v. Law Society of Alberta, 2002 SCC 65 at para.51.

10 This would include, for example, answering complaints made about their actions to the governing bar association or in public inquiries.

11 Under the Treasury Board policy, the decision is the responsibility of the Deputy Minister. In the Department of Justice, the Deputy Minister has assigned lead responsibility for this decision to an Associate Deputy Minister, who consults the ADAG (Criminal Law) and such other persons as may be necessary in making the decision

12 If criminal proceedings are instituted against a Crown counsel who qualifies for indemnification/legal assistance, private counsel will be retained.

13 In some jurisdictions, Crown counsel may be able to avail themselves of insurance provided by their bar association.

14 In this regard it should be noted that the Civil Litigation Deskbook chapter A-3, “Public Servants”, encourages assigned counsel to seek to have individual public servants named in claims removed from the style of cause.

15 FPS Directors are reminded that any damage claims, costs or expenses associated with this policy should be reported to the ADAG (Civil Litigation) to facilitate compliance with the monitoring function in s. 9 of the Treasury Board policy.

16 See Part V, Chapter 15, “The Decision to Prosecute”, s.15.3. This is not intended to suggest that such a note be prepared in every case.

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Date Modified:
2008-12-24