In three paragraphs, she distinguished the plaintiff’s situation
from that of the police defendants. She concluded that the focus
of the decided cases was on the rights of individual citizens and
not the police (at para. 137). Given that the law respecting prosecutorial immunity was developed in the context of civil claims
by members of the public and not in the context of claims by
the police, she refused to strike the cross-claim for indemnity
(at para. 138).
 In my view, the motion judge erred. Given the existing
appellate authority on prosecutorial immunity, the nature of the
claim — that is, a claim in negligence — and policy considerations, it is plain and obvious that the claim of the respondents
 The jurisprudence of the Supreme Court of Canada has
made it clear that there is a very high threshold to establish an
exception to prosecutorial immunity. Malice must be established
in the context of a claim for damages for malicious prosecution
(see Nelles, Proulx and Miazga). Intentional non-disclosure must
be proven in a claim for damages for the breach of the Charter
right to disclosure in a criminal proceeding (see Henry).
 The Court of Appeal for Ontario has actually dealt with
a motion to strike in the context of a tort claim against Crown
attorneys based on negligent investigation. In Thompson v.
Ontario,  O.J. No. 3917, 56 C.R.R. (2d) 112 (C.A.), the Court
of Appeal cited Nelles for the proposition that common law
immunity protected Crown attorneys against claims based in
negligence (at para. 56). Subsequently, in Gilbert v. Gilkinson,
 O.J. No. 5347, 205 O.A.C. 188 (C.A.), the Court of Appeal
reiterated, at para. 7, that “[t]here is no claim in negligence
against the Crown for prosecutorial misconduct” (leave to appeal
to S.C.C. refused  S.C.C.A. No. 67). The following cases also
support this proposition: Simon v. Canadian National Railway,
 O.J. No. 5547, 1999 CanLII 1187 (C.A.), at para. 6; Miguna
v. Ontario (Attorney General),  O.J. No. 5346, 262 D.L.R.
(4th) 222 (C.A.), at para. 11; and Ferri v. Root,  O.J. No.
397, 2007 ONCA 79, 279 D.L.R. (4th) 643, at para. 98.
 Those cases are binding on the Divisional Court. Based on
the current legal authority, it is clear that Crown attorneys enjoy
immunity from a civil suit in negligence arising from the exercise
of their official functions. It is only when they act with malice or
intentionally breach the Charter disclosure right that they can be
subject to a civil action for damages.
 The respondents argue that it is not plain and obvious that
the claim will fail because there has been a subsequent decision
that reaches the same conclusion as that of the motion judge —