In the present case, there is no countervailing policy concern that public confidence in the administration of justice will be
eroded if Crown attorneys are not held liable in negligence
because they have made mistakes in providing legal advice. The
policy concern that led to an exception in Nelles was the deliberate and malicious misuse of public office.
 The respondents argue that their negligence allegations
relate to the actions taken by the Crown attorneys during an
investigation, and not in the exercise of their prosecutorial discretion. They are essentially asking this court to draw a distinction
between the exercise of “core prosecutorial discretion” and other
duties of the Crown attorneys. They argue that the scope of
immunity depends on the function performed.
 However, Nelles and Henry make it clear that this functional approach to immunity is both impractical and unsound as
a basis for determining prosecutorial immunity. Indeed, the
actions of alleged negligence in this case relate to the provision of
legal advice during the course of a criminal investigation, assistance in obtaining judicial authorization for wiretaps, and provision of advice concerning the laying of criminal charges. These
are all actions undertaken in the exercise of the office of Crown
attorney, whose duty it is to “aid in the local administration of
justice” (Crown Attorneys Act, R.S.O. 1990, c. C.49, s. 11). Indeed,
the Report of the Review of Large and Complex Criminal Case
Procedures, conducted by the Honourable Patrick J. Lesage and
then Professor Michael Code (November 2008), discussed the
evolution in the police and Crown relationship pre-charge, with
the Crown providing more and more legal advice pre-charge, especially in complex cases. However, the report emphasizes that the
Crown and police remain constitutionally independent (at p. 25).
 I note that even if the respondents were correct in drawing a line based on the function performed, it is clear, in the context of the pleading, that some of the actions taken by the
Crown attorneys — notably, the giving of advice with respect to
criminal charges or assisting in obtaining warrants — lie within
the core of prosecutorial discretion. At a minimum, this conduct
of the Crown attorneys would be protected by prosecutorial immunity.
 However, when one considers the existing case law, it is
plain and obvious that the respondents’ cross-claim must fail.
No appellate case has suggested that Crown attorneys may be
liable for negligence based on the legal advice they have provided
to the police in the course of an investigation leading to criminal
charges. The policy considerations discussed in the Supreme
Court’s jurisprudence lead to the conclusion that there should not