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Supreme Court Rules on Malicious Prosecution Case
Published in the November 2009 issue of Litigation Notes - View Article
The Supreme Court of Canada reviews the threshold that must be met in order to succeed in an action for malicious prosecution.
The respondents, foster parents and members of their extended family, were charged with about 70 counts of sexual assault against three children in their care, based on the testimony of the children. They were convicted in late 1992 and their convictions were upheld by the Saskatchewan Court of Appeal but overturned by the Supreme Court of Canada. Due to the Crown’s increasing doubts about the credibility of the children’s testimony, the charges against the respondents were stayed in early 1993. Some years after that, the children recanted their allegations.
The respondents then sued the Crown who had prosecuted the sexual assault charges for malicious prosecution. The respondents were successful at trial level and in the Saskatchewan Court of Appeal – however, the Supreme Court of Canada found that the test for malicious prosecution had not been made out, as there was no evidence to support a finding of malice or improper purpose on behalf of the Crown.
The Court reviewed the four part test for malicious prosecution, noting that in the case of a Crown defendant, there will be a very high threshold for a finding of malicious prosecution, in accordance with the policy reasons underlying the historical immunity enjoyed by the Crown. These reasons include the need to protect the independence of the Attorney General and the need to protect prosecutorial discretion, including decisions to initiate or continue criminal proceedings.
The four parts of the test are: (i) the prosecution was initiated by the defendant; (ii) the prosecution ended in the plaintiff’s favour; (iii) there was an absence of reasonable and probable cause for initiating the prosecution; and (iv) the prosecution was motivated by malice or a primary purpose other than that of carrying the law into effect.
The Court clarified the standard of belief which should inform the prosecutor’s decision to initiate or continue a prosecution and whether the third element should be an objective one, leaving the prosecutor’s subjective belief to the fourth part of the test. The Court stated that the standard of belief is “probable guilt”, meaning that the prosecutor has made a professional assessment, based on existing circumstances, that “proof beyond a reasonable doubt could be made out in a court of law.” The Court further clarified that the inquiry into the prosecutor’s subjective state of belief properly belongs in the fourth part of the test, not the third. Where objective reasonable grounds exist, it cannot be said that a criminal process was wrongly invoked – the third part of the test turns on “an objective assessment of the existence of sufficient cause.” [emphasis added]
The prosecutor’s subjective belief is relevant in assessing the presence or absence of malice, the fourth part of the test. Malice requires that there be a “deliberate and improper use of the office of . . . the Crown Attorney, a use inconsistent with the status of “minister of justice”.” The plaintiff must prove that the Crown “wilfully perverted or abused the office of the Attorney General or the process of criminal justice.” [emphasis in the original]. The absence of subjective belief, while relevant to the malice inquiry, “does not dispense with the requirement of proof of an improper purpose.”
The Court then proceeded to examine whether the Court of Appeal was correct in upholding the trial judge’s finding that the Crown was liable for malicious prosecution. The trial judge’s findings were that liability existed based on the objective lack of reasonable and probable grounds and the Crown’s lack of subjective belief in the existence of such grounds. Both of these findings were based on the trial judge’s conclusion that no one could have reasonably believed the allegations made by the three children.
The Court noted that, with respect to his finding that there was an objective lack of reasonable and probable grounds, in fact the investigating police officer, the judge and the appellate judges involved in the criminal case had all believed the children’s evidence, and found that the trial judge’s conclusion that no one could have reasonably believed their evidence was a palpable and overriding error. With regard to his finding that there was no subjective belief in the existence of such grounds, the Court noted that the Crown testified that while he did not believe the more unusual aspects of the children’s testimony, “he believed the children.”
Finally, the Court found that the Court of Appeal had fallen into error by looking at “the totality of the circumstances” and thus foregoing the need for evidence of improper purpose. The Court found that, as neither the plaintiffs nor the courts below had pointed to any improper purpose that impelled the Crown to prosecute, the third and fourth parts of the test for malicious prosecution were not made out. It allowed the appeal and dismissed the action.
Miazga v. Kvello Estate, 2009 SCC 51 (CanLII)