On February 9 2009 Neil Singh worked at Crane Supply, a company supplying copper.  Singh was seen, by the security guard, getting off his shift and getting picked up in the parking lot at 1022pm.

The security guard went back to his office where he was confronted by two armed men. What a coincidence!

The security guard’s hands were tied with ZIP TIES.

Copper was stolen.

Singh was arrested June 11 2009 and his cell phone had a series of calls back and forth between Singh and another guy Maharaj, on February 9 2009 between 845pm and 10:31pm. After that there was a call-gap (wherein Singh and Mararaj were ostensibly carrying out the armed robbery).

Singh had a text from Mararaj at 11:58pm (during the robbery and 15 minutes before the security guard called 911) saying “ZIP TIES”. What a coincidence!

Maharaj cell data put him in the area at 10:30pm February 9 2009.  What a coincidence!

Singh showed zero signs of beating on the video taken moments later, did not go to hospital, did not seek any medical attention or make any sign of injury. He gave a video statement declaring his innocence! In other words the video was not part of the evidence leading to conviction.  He went to a doctor a month later complaining of neck pain. Nothing came of that.

Mararaj too was ‘assaulted’ by the police during interrogation. Mararaj gave an inculpatory statement.

Immediately upon release from custody Maharaj attended medical attention and there was evidence of a broken rib.

The crown conceded that both accused’ Charter rights had been breached.

The police brought civil action against the crown for negligence of public duty and misfeasance. The police argument was that their reputations and careers were damaged because the crown did not confront the allegations of assault. The crown rather conceded the assaults accepting that they occurred rather than contesting them.

The police officers were thus caught in the twilight zone of criminal proceedings wherein the crown is the only party. Anything alleged in a proceeding attracts in-court-statement immunity. The crown is the only entity in the equation who can push back against in-court claims by the accused. If the crown fails to confront and in fact concedes, then the police are without remedy for the career and reputation damage done.

Here is the interesting point: the special investigation unit determined that the alleged interrogation injuries to Mararaj were medically determined to have taken place after the interrogation (in other words he manufactured the broken rib to assist his claim).

This SIU information was not highlighted (but neither was it hidden from) the court of appeal. The SCC was the first place to confront the question of crown 'non-disclosure' of the SIU results.

What exactly are the duties of the prosecutor and to whom are they owed? Are any duties whatsoever owed to police?

The SCC said that the past case law did not answer the question. The SCC reiterated that policy demandsprosecutorial immunity

In a wonderful example of how the common law evolves to meet the necessities of the situation, (in the context of a then vague SCC-inspired common law rule of crown immunity), the police in the “Mr. Big” sting operation took advice from the crown on how to set up their investigation in order to make the evidence effective. The statements obtained from the operation were thrown out and ‘Mr. Big” sued the police. The police logically cross-claimed against the attorney general for ‘negligent advice’. Matheson J. agreed with the police that there was a prima facie proximity and duty to the police to whom crown advice was given, which was not simply overthrown by the assertion of ‘crown immunity’.

The SCC was not satisfied with deciding the case based upon ‘Mr. Big’. So Abella for the majority (except Cote) decided this way:

• was there reasonable foreseeability: yes

• was there proximity: yes

• does policy require immunity anyway: yes

more on crown immunity tomorrow

immunity issues generally