Apparently, the work done by participants in the justice system is so vital to public order that protective cocoons need to be spun around them.
If judges and prosecutors had to worry about being sued for gross errors of judgment, or so the rationale goes, their energies would be diverted from their solemn and sacred duties. They have just enough energy to do their jobs, but not enough, it seems, to defend their actions.
Talk about an elitist notion. Immunity may work well in unreal contexts like the reality show Survivor, where contestants competing for the immunity idol create intrigue and suspense. But in the real world, immunizing public officials from the law can only leave the stench of self-interest.
The Ontario Court of Appeal recently cast serious doubt on witness immunity (whereby witnesses cannot be sued for mistakes made in the course of providing testimony) in the case of Dr. Charles Smith, a former pathologist at Sick Kids Hospital.
Smith has made a lot of mistakes; the chief coroner has ordered a review of dozens of his cases. Louise Reynolds was one of his mistakes. In 1998, Smith testified that Reynolds's seven-year-old daughter had been killed by more than 80 stab wounds inflicted by a knife or scissors. But upon subsequent exhumation of the body, it was determined that the child's death was caused by the bites of a pit bull.
Second-degree murder charges were withdrawn against Reynolds, who spent 22 months in jail and lost custody of another daughter for close to four years. She initiated a lawsuit against Smith, but the action was summarily dismissed. A judge decided Smith was protected by witness immunity and could not be sued for his remarkable error.
The Court of Appeal has now allowed the lawsuit to proceed. The court was skeptical. Perhaps immunity would apply to his testimony at the preliminary hearing, but it might not extend to any negligent conduct in preparation for his testimony.
Witness immunity is an obsolete relic of the common law dating back to a time when "accountability" wasn't even a word in the dictionary. Despite valiant efforts, it has been hard to sustain the life of these relics in the modern era.
After a circuitous legal battle, Crown prosecutors were finally stripped of official immunity by the Supreme Court of Canada in the Susan Nelles case in 1989. Ironically, that murder case was also connected to Sick Kids. Nelles, a young nurse, was charged with the murder of four infant patients at the hospital in 1981. She was discharged at her preliminary hearing and sued many public officials after it quickly became apparent that the case against her was flawed.
The government successfully argued for immunity for the attorney general and prosecutors before the Supreme Court shot them down. Prosecutors can now be sued for malicious prosecution, but it remains uncertain if an official who botches a prosecution could be held liable for negligence.
Police have always been liable for malicious prosecution, and after another lengthy legal battle it's clear that the police can also be sued for negligent investigation.
The immunities provided public officials and participants in the criminal justice system are being slowly killed off, and this is a welcome development.
Of course, I'm not holding my breath waiting for judges to kill off the last surviving immunity: judicial immunity, which is close to absolute.
If a doctor, lawyer or engineer fucks up, he or she will be held civilly responsible for the consequences, so why should things be any different for judges and prosecutors?
Perhaps last month's diminution of immunity for witnesses is a signal that the judiciary is ready to abandon its immunity? Not a chance. No one gives up the immunity idol; people can only have it stripped from them.
Alan Young is a professor of law at Osgoode Hall. His column appears in NOW every other firstname.lastname@example.org