Crown Prosecutors and Constitutional Torts: The Promise and Politics of Charter Damages

Abstract

Protection of the rights of accused persons requires that Crown prosecutors be held legally accountable for abuses of their broad statutory powers. The author argues that prosecutors have too high a level of immunity from civil liability for common law torts, even after the Supreme Court of Canada's holding in R. v. Nelles that they do not have absolute immunity from suits for malicious prosecution. Recourse to the common law should be supplemented by the development of a constitutional tort action, which would provide a remedy in damages for breaches of the Canadian Charter of Rights and Freedoms by Crown prosecutors. In the author's view, the remedial provisions of the Charter can accommodate the use of damages as a deterrent to violations of constitutional rights. To ensure that a constitutional tort would protect the disadvantaged people who are the most frequent victims of prosecutorial abuses, determination of liability and assessment of damages should depend more on the seriousness of the particular abuse than on the degree of fault on the prosecutor's part or the amount of financial loss suffered by the victim.