Revisiting Malicious Prosecution

Eric Baum has recently written two posts on the topic of malicious prosecution (post #1 and post #2); both are critical of the complex tort created in Nelles v. Ontario, [1989] 2 S.C.R. 170. This issue is always an important one, given the generally terrifying idea of false accusations, and it is particularly relevant in light of the Steven Truscott acquittal and the SCC leave application recently filed by Crown Attorney Matthew Miazga, in Kvello v. Miazga, 2007 SKCA 57.

The facts are complex, but essentially Mr. Miazga was found liable for the malicious prosecution of a Saskatchewan family, who were falsely accused of horrific sexual crimes against their three foster children. Eric has provided an excellent discussion, as well as more background facts in post #2, above.

I want to offer a counter-point post; I think that the tort as it is currently formulated provides a good balance between protecting Crowns in their very difficult public duty, and provides the wrongly accused a remedy in the most egregious of cases.

General Information about Malicious Prosecution

At common law, prosecutors were given absolute immunity from civil liability for any decisions they made during the course of their duties. This originally included even prosecutions undertaken maliciously. In law, the word “malicious” does not imply spite, but rather implies an improper purpose. In the context of prosecutions, this means that charges were laid with a purpose besides upholding the law motivating the prosecutor.

Also at common law, the Crown was (and is), immune from tortious liability. A lawsuit could only be initiated against the Crown by fiat of the Attorney-General. This has since been amended by statute, federally the Crown Liability and Proceedings Act, and in Ontario the Proceedings Against the Crown Act (“PACA“). Now the Crown can be sued like any other corporate entity, but it is important to remember that the sole basis for that liability flows from those statutes, and any exceptions those statutes provide effectively excuses the Crown from liability.

In Ontario, the relevant part of PACA is as follows:

s. 5(6) No proceeding lies against the Crown under this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in the person or responsibilities that the person has in connection with the execution of judicial process.

Now, all of this information is not directly relevant. But it is important to remember that (a) the prosecutor’s employer (the Crown) is not liable for the prosecutor’s behaviour, and so a prosecutor faces a very personal challenge when these lawsuits are filed, and (b) that the role of the prosecutor is of a judicial nature, and that as such, it is essential to our system of justice that they be allowed to execute their duties free from fear of personal retaliation.

The Elements of the Tort

Obviously, I don’t think that a prosecutor’s protection should extend so far as to shield him or her from abusing his or her powers. Such protection would, it seems to me, undermine the rule of law. The tort as it currently stands has four parts. Well, actually five, since the third part has two parts; why the courts keep doing this is I’m sure a mystery to us all.

1. The proceedings must have been initiated by the defendant;
2. The proceedings must have been terminated in favour of the plaintiff;
3. The absence of reasonable and probable cause for prosecution; and
4. Malice, or a primary purpose other than that of carrying the law into effect.

“Reasonable and probable cause” is established when the prosecutor has (a) a subjective belief in the probability of conviction, and (b) when it is reasonable to have such a belief. The absence of either is sufficient to prove the third element. Though I mentioned that Mr. Truscott’s recent acquittal makes this topic more interesting, I should make clear that wrongful convictions are not really in the realm of malicious prosecutions. In order to obtain a conviction, there must be at least a reasonable prospect of conviction! The fault in wrongful convictions certainly lies in part with the Crown, but not sufficiently so to foist what is a spectacular failure of the entire justice system onto the prosecutor’s shoulders.

I think that Miazga illustrates the proper functioning of this tort rather well.

The Miazga Case

Three people were named defendants in the malicious prosecution suit: the police officer who laid the charges against the Klassans (the plaintiffs), the Crown (Mr. Miazga) who aided the officer in his charges and subsequently prosecuted the accused, and the child psychologist who aided the police when they questioned the children prior to laying charges.

At trial, all three were found to be liable, having satisfied each of the five elements of the tort. The police officer did not appeal. The Crown appealed, saying that there was no evidence of malice. The child psychologist, Ms. Bunko-Ruys, appealed, saying that she did not “initiate the proceedings” and therefore could not be liable.

The Saskatchewan Court of Appeal agreed with Ms. Bunko-Ruys, and I agree with that part of the judgment. While it is possible for a court to find that a private citizen initiated proceedings, it can only do so when the indvidual either lays the information his or herself, or are the only source of evidence for charges later laid by police. The former rule was applied in, for example, Khajadourian v. Tiano, 2007 CanLII 15799 (ON S.C.) and the latter rule was established in Martin v. Watson, [1995] 3 All E.R. 559. Here, Ms. Bunko-Ruys aided the police, certainly, but she did not counsel them to lay charges; even if she had, I would think that the police officer and the Crown are perfectly capable of doing their own jobs. The responsibility for dragging the Klassan family through a horrific process should lie squarely with the Crown’s office and the police.

The tort of malicious prosecution rarely succeeds, but in this case it did. The majority of the Court of Appeal upheld the trial judge’s findings against Mr. Miazga, and dismissed the appeal. The majority found that if the prosecutor did not have a genuine belief in the guilt of the accused, then that satisfied both the third element (because the subjective element is lacking) and the fourth element (because lacking a belief in guilt, some improper purpose must be guiding the prosecutor.)

This approach has drawn criticism from Justice Vancise, who dissented on this ground, and also from Eric in his posts. Both argue that this approach renders meaningless the “malice” element. With respect, I must disagree.

Malice is almost always a separate and independent element in establishing malicious prosecution. It happens, however, that when there is no genuine belief in the guilt of the accused, this satisfies both the third and fourth elements. Independent proof of malice is frequently required, however, in the face of a prosecutor having a genuine belief in the guilt of the accused, but no reasonable basis for that belief. In such a set of circumstances, we have a negligent prosecutor (which does not in itself warrant liability), together with an articulated improper purpose. Those two elements, together, establish that the prosecutor has well gone beyond the proper boundaries of his office. I think that prosecuting someone one does not believe to be guilty does so as well; indeed, it is the epitome of abusing the office of Crown Attorney.

Justice Vancise argued that without an articulated and proven improper purpose, the tort is not made out, and the lawsuit must fail. Yu-Sung Soh wrote several days ago that legal technicalities often unduly interfere with common sense. I agree.

The Klassans have been through a hellish ordeal which has lasted almost twenty years. To deprive them of a remedy, because of their inability to articulate which particular improper purpose motivated Mr. Miazga would defy reason. We shall soon see what the Supreme Court of Canada thinks of their reasoning, but I think that the approach taken by the majority provides a sound tort of malicious prosecution.

It takes a long time to write the factum and judgment, certainly. Five elements is a lot. But the tort is well-crafted to place the burden of decision-making where it belongs: on the police and Crown Attorneys. It also protects our prosecutors, and by extension our criminal justice system, by allowing only the most egregious of errors to be actionable. Mere negligence and errors of judgment cannot chill prosecutorial discretion and open our justice system to a multiplicity of lawsuits. At the same time, truly egregious errors, like prosecuting a family one believes to be innocent (as in Miazga) or when motivated by an ulterior motive (as in Proulx v. Quebec, [2001] 3 S.C.R. 9) are allowed to succeed.