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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.
- The proceedings must have been initiated by the defendant;
- The proceedings must have been terminated in favour of the plaintiff;
- The absence of reasonable and probable cause for prosecution; and
- 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.
5 Comments
I would disagree with Mr. Schreiter that the 5 part test for the tort of malicious prosecution "strikes a balance protect[ing] our prosecutors, and by extension our criminal justice system, by allowing only the most egregious errors to be actionable.
There hasn't been one (that's right, not one) successful malicious prosecution action against a Crown Attorney in Ontario ever. Nelles went all the way to the Supreme Court after the lower court and Ontario Court of Appeal struck the plaintiff's claim as not disclosing a cause of action based upon the existing common law and statutory absolute immunity against the Crown and its Assistant Crown Attorneys. My understanding is that there was no trial and the Ontario government settled following the inquiry into the deaths of the children at Sick Children's hospital.
Miazga offers The Court an opportunity to refine or, perhaps, reconstitute, the tort of malicious prosecution since Nelles and its progeny, including Proulx.
It may be worthwhile for the Supreme Court to consider expanding the test to address the following points:
1) The proceedings must have been initiated by the defendant, or any party acting in furtherance of the proceedings, including any party not acting in a judicial capacity, such as an agent of the defendant (thereby imputing the law of agency into the equation) [note: a justice of the peace taking an information is an administrative act, not a judicial one]
2) The proceedings must have been terminated in favour of the plaintiff, which includes not only an acquittal, but also a stay of proceedings based upon Charter breaches for Crown misconduct (non-disclosure by the Crown (R. v. Stinchcombe) or ss.7, 11(b) breaches for unreasonable delay, etc.);
3) The absence of reasonable and probable cause for prosecution and absence of reasonable prospect of conviction, including failure to apply or follow any statutory or regulatory obligations on the Crown relating to charge-screening (e.g. Federal Crown Policy Manual or Ontario Crown Policy Manual);
4) Malice, or a primary purpose other than that of carrying the law into effect, which, may be inferred in the absence of (3) above;
5) Damages must be proven, but where all (4) elements have been established, then liability is actionable per se without necessity of proof of general damages, albeit special damages need be proven.
For decades Bar Associations pointed the blame for malicious prosecution at "tunnel vision." The Guy Paul Morin case was a classic case of smear the target. In "Redrum the Innocent" Kirk Makim attacked Judge James Donnelly for voir dire gymnastics, to the private benefit of the prosecution. The tort should rest on: derogation of procedural rights. In consideration of "Boucher" obligations, police, prosecutors and judges must explore both inculpatory and exculpatory grounds for conviction. Tunnel vision won't end until the enforcement wings, are under pressure to discard all manner of partiality and subjectivity. If I was on a civil jury, then I would find civil wrong on the basis of inferable malice.
In a court of law, the accused must be a defendent and not a target.
In Oniel, a decision of the Ontario Court of Appeal, "abuse of process" was thought to found "malice."
http://www.canlii.org/en/on/onca/doc/2001/2001canlii24091/2001canlii24091.html
Oniel has been applied in 6 provinces. The Supreme Court of Canada must make exhaustive efforts to shake ambiguity from this tort. We are reluctant in second guessing police conduct where public safety is a factor. However, evidence assessment is different; police can and must treat same with impartiality and objectivity.
As for police conduct: why do we pretend that professionalism characterizes police norms? In 2000, independent auditors of Toronto Police Services' internal investigations system, viz public complaints, found substantiation of only 12 of 814 complaints. When accused, cops use coverup, whitewash, smear and plant, to produce ersatz exhonerations of their own. What about police training? BC's centralized training sytem ("Justice Institute") requires only 65 days of class training before a recruit is interned in police work; the Police Act oath can be taken after a few days of review and preparation. A real profession - Legal practice - requires over 600 days of schooling, and long internships and articling. The work product of the average Canadian cop yields 1 convicted person per month. Far from working to get-criminals-off-the-streets, the average cop delivers 1 incarcerated convict, per year. The legal profession needs to cease all deference to police. A cop is barely a public safety amateur, let alone a professional. Yet prosecutors let the tail wag the dog.
I can show 1,000-1,000,000 to 1 odds against my guilt with statistical analysis of the crown's evidence against me regarding an attempted murder charge. The crown is trying to secure a conviction anyway. The crown knows I am innocent because I have proved it yet has no stomach to face down the press. The press is cutting me down because I suffer from a mental illness (paranoid schizophrenia) and it makes a rabble rousing story.
I would like to see the crown do jail time for falsely prosecuting me.
The law is a great deal more backwards then it ever appeared before. Does it make lawyers money that way? Love over gold.
The recent decision by police to charge , ususally the man, in cases of domestic assault without any evidence or with a spouse denying assault can easily turn into a case of malicious assault. I think the police and the Crown have it in mind that seperating the couple by court order throiugh a charge of assault is justified to prtect the abused. But the purpose of the law is not to intervene in a legal relationship it is to prosecute offenders.So when the police say they have no discretion in a domestic assault case they have prejudged the peron they are charging even when there is no evidence that anyone was assaulted. In these cases the accused is seperated from their spouse and their children and the matrimonial home for months and sometimes years and then the crown drops the charges because they have no evidence to disclose in the first place or, a case that is so weak they know they can't win it.
To give you the background, I was arrested back in 2006 for sexual assault. The complainant said that we had intercourse, which we did not. During the trial, a nurse took the stand, advising that there was no evidence. It took 2 years to go to trial which I went to court once a month. I was found guilty and was sentenced to 4 years in federal prison. I spent one and a half years in prison where I was assaulted several times. After my appeal, I spent an additional 60 days in jail before getting bail. I appealed my case because the Crown mentioned that I didn’t take the stand. His exact remarks were "But he didn’t testify so he can’t be asked directly what he thought at the time or what he construed or what he knew."
The three judges wrote (see the attached) in the response to the appeal on
In Para. (26) “In the case at bar, the prosecutor made two references to the fact that the Crown's evidence stood uncontradicted. He stated that there was "no evidence" of any "alternative version of what happened" other than the complainant's. He then said that the only evidence regarding the issue of consent was what she had told the jury.” In Para. (27) they wrote “Now that may present a problem, because you need to figure out what his knowledge was as to whether or not she was consenting. But he didn’t testify, so he can’t be asked directly what he thought at the time or what he construed or what he knew. [Emphasis added).”In Para. (28) “The words “but he didn’t testify” clearly amount to a comment on the failure of the appellant to testify within the letter of s.4(6).”
The Crown’s case was very weak. The Crown’s professional witness contradicted the complainant’s testimony. In my view, the only way he could get a guilty verdict was by breaching my rights, which I think should be investigated for professional misconduct. I had a right to a fair trial. It is clearly written under the human rights and criminal code that a Crown or judge is not to, under any circumstances, indicate or infer a person’s guilt for not taking the stand.
The jury came back and asked three questions which are
1.(speculation)-can we fill in the gaps
2. Conclusions as to what someone was thinking at the time of events
3. (If evidence is not sufficient)- must we acquit.
These questions demonstrate that the jury was confused with the evidence and the comments that the Crown made.
Three appeal court judges agreed with my conclusion because they granted me a new trial at my appeal. A new trial was set for January 4th 2010 but the crown dropped all charges against me in September 2009. The reason for dropping all charges was their witness refused to take the stand again and lack of evidence.
In this case I find that the crown " W Milko" should be held responsible for his actions and Malice applied to a case like this