Legal Advice to Police: No Duty of Care Owed by Crown Attorneys

Crown Attorneys do not owe the police a duty of care in respect of the legal advice they provide to them.  

     Smith v. Ontario (Attorney General), 2019 ONCA 651.

In order to determine whether or not a duty of care should be recognized, it is necessary to follow the two-stage Anns/Cooper test.


At the first stage of this legal test, the question is whether the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff. [FN]  If this is established, a prima facie duty of care arises and the analysis proceeds to the second stage, which asks whether there are policy reasons why this prima facie duty of care should not be recognized.
  
In Smith v. Ontario (Attorney General), 2019 ONCA 651, the Court of Appeal for Ontario considered the following in making its determination that there is not a sufficiently direct and close relationship to impose a prima facie duty of care on Crown Attorneys providing legal advice to police:

1.      Mutual independence is the defining feature of the relationship between the police and Crown Attorneys. The principles of police independence and prosecutorial independence are well established within our legal system.  While cooperation is also a feature of the relationship between police and Crown Attorneys, it is important to maintain their separate and independent functions.

2.      In their quasi-judicial role as “ministers of justice”, Crown Attorneys owe duties to the public at large. Imposing a private law duty of care risks putting Crown Attorneys in a conflict of interest situation. 

3.      The formation of a solicitor-client relationship between the RCMP and the Department of Justice lawyer from whom the RCMP officers sought legal advice does not impose on Crown Attorneys a private law duty of care in giving legal advice.  Though the Court does not explicitly state it, it would appear that the functional separation of police and Crown Attorneys as well as the principle of prosecutorial immunity resist recognizing a private law duty, despite the fact that the legal advice was provided within the context of a retainer. (Generally, a lawyer owes a duty of care to his/her client in respect of the advice he or she provides).

As a result, there is not a sufficiently direct and close relationship to impose a prima facie duty of care on Crown Attorneys in providing legal advice to the police. 

The Court of Appeal for Ontario in Smith v. Ontario (Attorney General) went on to state, in obiter, that had it found sufficient proximity – which it did not – residual policy concerns would negate the recognition of a duty of care at the second stage of the Anns/Cooper test. 

     Written by Stuart O’Connell, O’Connell Law Group.

[FN] To determine whether the “‘close and direct’ relationship which is the hallmark of the common law duty of care exists courts must examine all relevant factors arising from the relationship between the parties. While these factors are diverse and depend on the circumstances of each case, they include the parties’ expectations and reliance: Deloitte & Touche v. Livent Inc. (Receiver of), [2017] 2 SCR 855, at para. 29. A conflict between an alleged duty of care and a public duty may also constitute a reason for refusing to find proximity: Syl Aps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, at para. 28.  

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