(delivered the judgment of the Court)
The respondents were charged with about 70 counts of sexual assault against children in their care. The charges were ultimately resolved in their favour when, following their committal but before trial, the appellant, Crown Attorney Miazga, entered a stay of proceedings. The child complainants, upon whose testimony the prosecution was based, subsequently recanted their allegations. The respondents then commenced this action for malicious prosecution.
There is no question that the respondents were the victims of a clear miscarriage of justice which undoubtedly had a devastating effect on their lives. Especially in the absence of an acquittal, it is often difficult for people wrongly accused of such crimes to fully regain their positions in society and free themselves from the stigma and trauma of those false allegations. The fact that we now know that the children’s allegations of sexual abuse were false, however, does not provide the answer to whether the respondents’ action in malicious prosecution against the Crown prosecutor can succeed.
To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was:
initiated by the defendant;
terminated in favour of the plaintiff;
undertaken without reasonable and probable cause; and
motivated by malice or a primary purpose other than that of carrying the law into effect.
The four-part test for malicious prosecution is of long standing in the common law. It evolved in the 18th and 19th centuries at a time when prosecutions were conducted by private litigants and the Crown was wholly immune from civil liability. In Nelles v Ontario,  2 S.C.R. 170, this Court held that the Attorney General and Crown prosecutors no longer enjoy absolute immunity from a suit for malicious prosecution and set out the requisite standard for Crown liability under the pre-existing four-part test. The present appeal asks the Court to provide further guidance on the absence of reasonable and probable cause and malice requirements, in light of the unique role played by Crown prosecutors in our modern system of public prosecutions.
That Crown attorneys may be held liable in private law does not mean that well-established public law principles relating to Crown independence and prosecutorial discretion can be ignored in a civil action for malicious prosecution. The stringent threshold for Crown liability established by this Court in Nelles, and reiterated in Proulx v Quebec (Attorney General), 2001 SCC 66,  3 S.C.R. 9, made that clear, and the principles at play bear repeating here.
It is readily apparent from its constituent elements that the tort of malicious prosecution targets the decision to initiate or continue with a criminal prosecution. When taken by a Crown prosecutor, this decision is one of the “core elements” of prosecutorial discretion, thus lying “beyond the legitimate reach of the court” under the constitutionally entrenched principle of independence: Krieger v Law Society of Alberta, 2002 SCC 65,  3 S.C.R. 372, at paras. 32 and 46. The principle of Crown independence means that decisions taken by a Crown attorney pursuant to his or her prosecutorial discretion are generally immune from judicial review under principles of public law, subject only to the strict application of the doctrine of abuse of process.
Just as immunity from judicial review is subject to the doctrine of abuse of process in public law, the Attorney General and Crown attorneys do not enjoy absolute immunity from a suit for malicious prosecution in private law. A person accused of a criminal offence enjoys a private right of action when a prosecutor acts maliciously in fraud of his or her prosecutorial duties with the result that the accused suffers damage. However, the civil tort of malicious prosecution is not an after-the-fact judicial review of a Crown’s exercise of prosecutorial discretion. Under the strict standard established in Nelles, malicious prosecution will only be made out where there is proof that the prosecutor’s conduct was fuelled by “an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve.” (Nelles, at p. 199). In other words, it is only when a Crown prosecutor steps out of his or her role as “minister of justice” that immunity is no longer justified.
The high threshold for Crown liability was reiterated in Proulx, where the Court stressed that malice in the form of improper purpose is the key to proving malicious prosecution. In the context of a case against a Crown prosecutor, malice does not include recklessness, gross negligence or poor judgment. It is only where the conduct of the prosecutor constitutes “an abuse of prosecutorial power”, or the perpetuation of “a fraud on the process of criminal justice” that malice can be said to exist (paras. 44 and 45). Having regard to the defendant prosecutor’s mixed motives, the Court was satisfied that Proulx was one of those “highly exceptional” cases in which Crown immunity for prosecutorial misconduct should be lifted, and the defendant found liable for malicious prosecution.
The trial judge in this case held that there were no objectively reasonable grounds upon which Miazga could have believed that the respondents were probably guilty of the offences alleged against them. He held that Miazga could not have had a subjective belief in the existence of reasonable and probable cause because of the unbelievable nature of the children’s allegations against the respondents. He concluded that the absence of reasonable and probable cause raised a presumption of malice which, in the circumstances of this case, was itself sufficient to ground a finding of malice. In the event he was wrong on this conclusion, the trial judge held that there were other “indications of malice” to support the conclusion that Miazga’s prosecution of the respondents was animated by an improper purpose. He therefore found Miazga liable for malicious prosecution (2003 SKQB 559, 244 Sask. R. 1).
The Saskatchewan Court of Appeal was unanimously of the view that the trial judge’s “indications of malice” were based on erroneous assumptions, errors in law, or were unsupported by the evidence. However, Sherstobitoff J.A., Lane J.A. concurring, dismissed the appeal on the basis that the trial judge’s finding that Miazga did not have a subjective belief in the probable guilt of the respondents was sufficient to support the conclusion that he was actuated by malice (2007 SKCA 57, 293 Sask. R. 187).
Vancise J.A. disagreed with the majority’s conclusion. In his view, the absence of reasonable and probable grounds alone could not constitute malice. In order to be malicious, a prosecution must be fuelled by an improper purpose, and no such improper purpose was identified in the pleadings or at trial; nor was an improper purpose found by the trial judge. Vancise J.A. concluded that there existed no evidence indicative of an intentional effort by Miazga to abuse or distort the Crown attorney’s proper role within the criminal justice system. In addition, he concluded that the trial judge’s finding that Miazga did not believe there were reasonable and probable grounds to initiate and continue the prosecution was based on a palpable and overriding error. Vancise J.A. would have allowed the appeal and dismissed the action.
I agree with Vancise J.A. that the trial judge’s finding of liability is not supported by law or the evidence in this case. In particular, it is my view that there is no evidence to support a finding of malice or improper purpose. In light of the respondents’ failure to prove malice, it is not necessary to determine whether there was a lack of reasonable and probable grounds to proceed at the time Miazga initiated the prosecution more than 18 years ago. Given that the children’s allegations are now known to have been false, no useful purpose would be served by revisiting “the facts” as they appeared at that time.
I would therefore allow the appeal and dismiss the action.
2.1 The Allegations
In the spring of 1991, Miazga, a Crown prosecutor in Saskatchewan with 12 years’ experience, was contacted by police officer Cpl. Brian Dueck about an ongoing sexual assault investigation. The case revolved around disclosures of sexual abuse made by three children, the R. siblings, against their foster parents, Anita and Dale Klassen, and members of the Klassens’ extended family, who are the respondents in this appeal. The R. siblings also made allegations of abuse against their biological parents, R. and R. (“R. parents”), and their mother’s boyfriend, D.W., who are not parties in the present appeal.
The R. children told police that their alleged abusers had committed upon them, and had forced them to commit, various sexual acts. The allegations against each of the respondents by each of the R. children were virtually identical in nature. The children also detailed bizarre events including the mutilation and ritualistic killing of animals, dismemberment of babies and drinking of human blood. The respondents in this case were not implicated in the ritualistic allegations, which were made only in respect of the R. children’s biological parents and D.W.
Dueck asked Miazga for his opinion as to whether charges should be laid. Miazga reviewed the allegations and Dueck’s file and ultimately advised that if he believed the R. children’s allegations, Dueck should proceed with the laying of charges.
By way of context, it is notable that the case against the respondents arose in the wake of the January 1988 amendments to the Criminal Code, R.S.C. 1985, c. C‑46, and the Canada Evidence Act, R.S.C. 1985, c. C-5, which eliminated the requirement for corroboration of unsworn evidence of children in order to obtain a conviction. There was also a prevailing and pervasive doctrine, now debunked but popular among child psychologists at the time, that “children don’t lie” about abuse. As a result, many cases of past child abuse were coming to light in Canada, and some were given wide publicity.
On July 6, 1991, Dueck swore an Information charging each of the respondents with one count of sexual assault against each of the three R. children. The respondents were arrested five days later and remanded in custody for six days. At their first court appearance on July 18, 1991, Miazga appeared for the Crown and consented to the release of all of the respondents.
Also on July 6, 1991, Dueck swore an Information against the R. parents and D.W., charging them each with multiple counts of either sexual assault or gross indecency against the R. children.
2.2 The Preliminary Hearings
The preliminary inquiry in the R. parents and D.W. case commenced on November 21, 1991. On the basis of the R. children’s evidence, all three accused were committed for trial on all charges against them.
It became apparent in the course of the preliminary inquiry that one of the R. children had lied to the court about keeping notes of the alleged abuse. At the conclusion of the preliminary inquiry, Miazga noted on the record that, in light of the frailties he perceived in the children’s evidence, particularly in respect of their credibility, he was grappling with whether to proceed with the preliminary inquiry regarding the charges against the respondents.
Miazga consulted with his superiors at Prosecutions Head Office, and was instructed to continue with the prosecution if he believed the essential aspects of the children’s stories.
The preliminary hearing in the case against the respondents commenced on December 2, 1991, with Miazga as co-counsel. All of the respondents were committed for trial based on the allegations of the R. siblings.
2.3 The Stay of Proceedings
Miazga prosecuted the case against the R. parents and D.W. The R. children gave testimony and the judge convicted the three accused on several counts of sexual assault on December 18, 1992. In her reasons for judgment, the trial judge urged that the children not be made to endure another criminal proceeding.
Taking the judge’s comments under advisement, and based on his own view that the children’s credibility was becoming increasingly uncertain, Miazga twice met with his Head Office to discuss the possibility of a plea bargain. He negotiated a plea bargain in which one of the accused, Peter Klassen Sr. (father of the respondent, Peter Dale Klassen), who is not a respondent in the present appeal, pled guilty to four charges of sexual assault. The charges against the respondents were stayed on February 10, 1993.
The convictions entered at trial against the R. parents and D.W. were upheld by a majority of the Saskatchewan Court of Appeal, R v R. (D.) (1995), 98 C.C.C. (3d) 353. This Court overturned those convictions,  2 S.C.R. 291; however, the majority of the Court concluded that the evidence of the R. siblings was sufficient to order new trials for two of the defendants.
2.4 The Malicious Prosecution Suit
Some years following the stay of proceedings, all three R. children recanted their allegations against the respondents.
The respondents commenced a civil suit against a number of individuals involved in the proceedings against them: the police officer Dueck, the prosecutor Miazga, his co-counsel, the estate of Miazga’s superior at Prosecutions Head Office, and the child therapist who treated the children and testified in the criminal proceedings against the respondents. The action against Miazga’s co-counsel and the estate of his superior were non-suited at trial. Dueck, Miazga and the child therapist were found liable.
Dueck did not appeal the trial judgment. The judgment against the child therapist was set aside on appeal. The Court of Appeal found the trial judge’s conclusion that, but for the involvement of the child therapist the charges would not have been laid and, if laid, would not have been prosecuted, was “simply not supported by the evidence” and indeed was contrary to the entire body of evidence bearing on her participation in the investigation of the alleged offences (para. 42). The court held further that even if the trial judge’s findings of fact were correct, they were not sufficient in law to make the child therapist liable for initiation of the proceedings. No appeal is taken from the dismissal of the action against the child therapist. It is only the action against Crown prosecutor Miazga that concerns the Court in the present appeal.
3. The Action Against Miazga: Judgments Below
3.1 Court of Queen’s Bench of Saskatchewan
At trial, Miazga did not take issue with the fact that he had initiated the proceedings against the respondents within the meaning of the case law under the first element of the four-part test for malicious prosecution. While there was some issue in respect of the second element of the tort in light of the plea bargain with Peter Klassen Sr. (not a party to this action), the trial judge held that the proceedings had terminated in favour of the respondents. No issue is taken on this point before this Court. The trial judge found that the third and fourth elements of the tort were satisfied based on his conclusions that Miazga did not have reasonable and probable grounds to proceed against the respondents and had acted maliciously in doing so. The judge’s findings on these latter two elements of the tort remain at issue.
As noted by the Court of Appeal (at para. 68), it is clear that the trial judge “identified the credibility of the R. children and their allegations as ‘the most critical issue of the case’.” It is also apparent that the trial judge’s conclusion on liability was based on his view that the children’s allegations were so unbelievable as to be patently absurd, such that no reasonable person would have believed the accusations against the respondents without corroborating evidence. The trial judge pointed to the ritualistic and satanic aspects of the allegations, the rote manner in which the children recalled the abuse, and the fact that, if the children’s stories were accepted, twelve individual adults, many with young children of their own, were routinely abusing the R. children in the same fashion in different houses, while other adults were present. The trial judge concluded that in light of the nature of the complaints, and given that the children were known to be untruthful, the allegations against the respondents were virtually unbelievable.
On the third element of the test for malicious prosecution, the trial judge concluded that Miazga did not have a subjective belief in the probable guilt of each of the respondents respecting the offences charged against them. He noted (at para. 357) that “not one of the defendants ever said that he or she had an honest belief in the probable guilt of the plaintiffs”, testifying only that they “believed the children”. Even if Miazga had testified that he believed in the probable guilt of each of the respondents on each of the charges, the trial judge held that he could not have accepted such evidence as truthful because there were no objectively reasonable grounds upon which Miazga could have concluded the respondents were probably guilty of the crimes alleged, given the unbelievable nature of the R. children’s allegations.
On the final element of the tort, the trial judge held that Miazga acted maliciously in prosecuting the respondents. He found (at para. 381) that given the “extraordinary” circumstances of this case, Miazga’s decision to proceed against the respondents without reasonable and probable grounds constituted a strong presumption of malice or at least amounted to a “strong indication of malice” (para. 382). Further, the trial judge held that there were “many other strong indications of malice” in addition to absence of reasonable and probable grounds that could be inferred from Miazga’s conduct (para. 382). The trial judge attributed malice to Miazga on the basis of each of the following facts:
Pre-charge Advice to Dueck
Miazga’s failure to interview the children or view the videotapes of their interviews with police before advising Dueck that he should lay charges if he believed the children (para. 141);
Miazga’s failure to be even-handed in his zeal to charge and prosecute the alleged abusers because persons other than the parents of the R. children and the respondents were named in the children’s allegations but were not charged (para. 390); and
Miazga’s general failure to adequately investigate or objectively assess the case before advising Dueck (paras. 141, 294, 287 and 384).
Conduct during the Criminal Proceedings
The particulars of the respondents’ arrest, the decision to remand them in custody for six days and the conditions under which they were held (para. 176);
Miazga’s use of expert witnesses as “oath helpers”, who gave evidence that the R. children were dysfunctional and had been sexually abused, and as a result, would be expected to have inconsistencies in their allegations and testimony (paras. 271-72);
Miazga’s attempts to “shelter” the children throughout the proceedings by objecting to the defence lawyer sitting as an observer at the preliminary inquiry into the charges against the R. parents and D.W., objecting to the cross-examination of the children on their videotaped interviews and previous statements, and his questioning of the expert witnesses (paras. 412-16); and
Miazga’s approach, conduct and attitude throughout the trial, which lead the trial judge to infer that he was determined to secure committals or convictions no matter how unreliable the witnesses were (para. 418).
Miazga’s Evidence at Trial
Miazga’s failure to apologize or express remorse for the prosecution, and his lack of concern about the effect of the prosecution on the respondents or on public confidence in the justice system (paras. 404‑6).
3.2 Court of Appeal for Saskatchewan
Although divided in the outcome, the Court of Appeal was unanimous in concluding that the trial judge had erred in attributing malice to Miazga on the basis of the facts he deemed “other strong indications of malice”, as described above. The court found that the trial judge’s conclusions in this regard were based on erroneous assumptions about the role of the prosecutor, errors in law, or were unsupported by the evidence. The gist of the court’s reasoning is as follows.
In respect of Miazga’s pre-charge actions, Sherstobitoff J.A., writing for himself and Lane J.A., concluded that the trial judge erred in attributing malice to Miazga for any failure to properly investigate the matter. He recalled the separate functions of police and prosecutors (at paras. 104-14), noting that police ultimately bear sole responsibility for the investigation of an offence and the decision as to whether and what charges should be laid. Save Miazga’s failure to interview the children himself before giving Dueck advice to proceed if he believed the children’s allegations which, in the majority’s view, was properly taken into account (at paras. 115-16), the pre-charge conduct of the investigation had no bearing on the case against Miazga. Vancise J.A. agreed that “the trial judge demonstrated a lack of understanding of the role of the police and the role of the prosecutor” (para. 212).
Regarding Miazga’s conduct during the criminal proceedings, Sherstobitoff J.A. found (at para. 121) that the trial judge erred in attributing malice to Miazga on the basis of the respondents’ remand in custody at the time of their arrest, because there was no evidence that Miazga had anything to do with the nature and circumstances of the arrest. In fact, the evidence showed that Miazga’s first involvement in the matter was to consent to the respondents’ release at the show cause hearing. As to Miazga’s conduct of the trial, including his allegedly over-protective position on behalf of the children and his handling of the expert witnesses, the court held that, even if one agreed with the trial judge that Miazga was unduly aggressive, the presiding judge retained control of the proceedings (Vancise J.A., at para. 237), and in any event, any such misconduct by a Crown prosecutor would be equally consistent with poor judgment, negligence or recklessness as with malice (Sherstobitoff J.A., at para. 130).
Finally, the court held (at paras. 127 and 242) that it was not open to the trial judge to infer lack of remorse and thus malice from Miazga’s failure to apologize for the prosecution of the respondents, because there was simply nothing on the record regarding the presence or absence of remorse. Miazga was never asked about his feelings on the prosecution during the course of the trial.
In summary, the Court of Appeal unanimously rejected virtually all of the trial judge’s “indicators of malice”. As Sherstobitoff J.A. noted, the trial judge failed to explain why he considered these actions to be signs of malice, given that most of them were equivocal in indicating Miazga’s intentions, and could be consistent with poor judgment, negligence or recklessness, none of which are actionable.
Nevertheless, the majority concluded that the appeal should be dismissed. According to Sherstobitoff J.A., the trial judge’s finding that Miazga did not have a subjective belief in the probable guilt of the respondents was a finding of fact that “tips the balance” against Miazga (para. 132). Sherstobitoff J.A. concluded (at para. 135) that this finding was reasonable, having regard to the whole of the evidence and the “the trial judge’s firm opinion, which permeates the entire judgment,” that it should have been apparent to anyone that the R. children’s allegations were so bizarre as to be unbelievable, and that the children were not sufficiently credible. The majority held that Miazga’s decision to proceed absent reasonable and probable grounds was itself sufficient to make out the malice element of Nelles, explaining as follows (at para. 141):
For a Crown prosecutor to proceed with a prosecution without a belief in the credibility of his complainants, and without a belief in the guilt of the accused amounts to the “willful and intentional effort on the Crown’s part to abuse or distort its proper role within the criminal justice system” as referred to in Proulx .... and takes the case beyond bad judgment, negligence or recklessness and into the realm of malice.
Vancise J.A., writing in dissent, disagreed. He held (at para. 246) that the key to the tort of malicious prosecution is malice, defined in Nelles and Proulx as “conduct fuelled by ‘an improper purpose’ ”. In his view, the absence of reasonable and probable grounds alone could not constitute malice in the form of improper purpose. No improper purpose was identified in the pleadings and, significantly, the trial judge made no express finding of a specific improper purpose attributable to Miazga (para. 170). As a result, Vancise J.A. concluded that there existed no evidence indicative of an intentional effort by Miazga to abuse or distort the Crown attorney’s proper role within the criminal justice system (para. 245). All of the so-called indications of malice which the trial judge attributed to Miazga “were not evidence of some improper purpose but rather indications of at best bad judgment, negligence or recklessness” (para. 247).
In light of this conclusion, it was not necessary for Vancise J.A. to deal with the issue of reasonable and probable grounds. He nevertheless concluded that the trial judge’s finding that Miazga did not have an honest belief in the existence of reasonable and probable grounds was based on the unbelievable nature of the R. children’s allegations and, as such, amounted to a palpable and overriding error. Vancise J.A. held that Dueck’s belief in the children and the antecedent criminal proceedings against the R. parents and D.W., where the testimony of the R. children was accepted as credible, belied the trial judge’s premise that the allegations were so absurd as to be totally unbelievable.
4.1 Historical Development of The Tort of Malicious Prosecution
Malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution. The four-part test for malicious prosecution was born and evolved in England in the 18th and 19th centuries at a time when prosecutions were conducted by private litigants and the Crown was immune from civil liability. Indeed, all of the early English and Canadian cases of malicious prosecution involved disputes between private litigants: see e.g.
Heath v Heape (1856), 1 H. & N. 478 (Ex.), 156 E.R. 1289;
Hicks v Faulkner (1878), 8 Q.B.D. 167;
Abrath v North Eastern Railway Co. (1886), 11 App. Cas. 247 (H.L.);
Joint v Thompson (1867), 26 U.C.Q.B. 519;
Prentiss v Anderson Logging Co. (1911), 16 B.C.R. 289 (C.A.);
Jewhurst v United Cigar Stores Ltd. (1919), 49 D.L.R. 649 (C.A.);
Gabler v Cymbaliski (1922), 15 Sask. L.R. 457 (K.B.);
Love v Denny (1929), 64 O.L.R. 290 (C.A.).
Crown immunity at common law endured until the 1950s, when Canadian governments began adopting Crown liability legislation: see e.g. the federal Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50, s. 3; and Saskatchewan’s Proceedings against the Crown Act, R.S.S. 1978, c. P‑27, s. 5. This body of statute law sparked divergent lines of judicial authority on the question of whether the absolute immunity from civil liability historically afforded Crown prosecutors should continue. This Court in Nelles decided the debate in favour of extending the tort of malicious prosecution to Crown prosecutors. However, as Vancise J.A. aptly noted in the court below, the policy reasons underlying the historical immunity enjoyed by Crown prosecutors “justified an extremely high threshold to succeed in an action for malicious prosecution” (para. 184).
Given that the tort of malicious prosecution predates the development of our contemporary system of public prosecutions, courts must take care not to simply transpose the principles established in suits between private parties to cases involving Crown defendants without necessary modification. While the elements of the four-part test for malicious prosecution are identical no matter the parties, the contours of the tort in an action against the Attorney General or his agents must be informed by the core constitutional principles governing that office. These principles animated this Court’s decision in Nelles to adopt a very high threshold for the tort of malicious prosecution in an action against a public prosecutor, and, accordingly, it is useful to recall them here.
4.2 Crown Independence and the Tort of Malicious Prosecution
An allegation of malicious prosecution against a Crown attorney constitutes an after-the-fact attack on the propriety of the prosecutor’s decision to initiate or continue criminal proceedings against the plaintiff. The decision to initiate or continue criminal proceedings lies at the core of prosecutorial discretion, the nature and contents of which were described by this Court in Krieger as follows (at paras. 43 and 46-47):
“Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.
Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following:
While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.
Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.
The independence of the Attorney General is so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched. The principle of independence requires that the Attorney General act independently of political pressures from government and sets the Crown’s exercise of prosecutorial discretion beyond the reach of judicial review, subject only to the doctrine of abuse of process. The Court explained in Krieger how the principle of independence finds form as a constitutional value (at paras. 30-32):
It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions. Support for this view can be found in: Law Reform Commission of Canada, [Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor. Ottawa: The Commission, (1990)], at pp. 9‑11. See also Binnie J. in R v Regan,  1 S.C.R. 297, 2002 SCC 12, at paras. 157‑58 (dissenting on another point).
This side of the Attorney General’s independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision‑making process ....
The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision‑making process – rather than the conduct of litigants before the court – is beyond the legitimate reach of the court .... The quasi‑judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.
See also R v Regan, 2002 SCC 12,  1 S.C.R. 297, at para. 166, per Binnie J., dissenting on another issue.
In exercising their discretion to prosecute, Crown prosecutors perform a function inherent in the office of the Attorney General that brings the principle of independence into play. Its fundamental importance lies, not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as “ministers of justice”: Boucher v The Queen,  S.C.R. 16, at p. 25, per Locke J. In R v Power,  1 S.C.R. 601, at p. 616, L’Heureux-Dubé J. acknowledged the importance of limiting judicial oversight of Crown decisions in furtherance of the public interest:
[T]he Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General’s role in this regard is not only to protect the public, but also to honour and express the community’s sense of justice. Accordingly, courts should be careful before they attempt to “second‑guess” the prosecutor’s motives when he or she makes a decision.
Thus, the public good is clearly served by the maintenance of a sphere of unfettered discretion within which Crown attorneys can properly pursue their professional goals.
That said, the general rule of judicial non-intervention in the prosecutorial exercise is not absolute. In the public law context, this Court in R v Jewitt,  2 S.C.R. 128, unanimously affirmed the availability of the doctrine of abuse of process in criminal proceedings, but (at p. 137) strictly limited judicial discretion to stay proceedings as a result of abuse of process to the “clearest of cases”. In Power, L’Heureux-Dubé J. for a majority of this Court described the high threshold that must be met to justify judicial interference with a Crown attorney’s decision to prosecute an accused (at pp. 615-16):
I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court’s process but only in the “clearest of cases”, which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.
To conclude that the situation “is tainted to such a degree” and that it amounts to one of the “clearest of cases”, as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice .... Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.
As stated earlier, the question of whether the Attorney General and Crown attorneys enjoy absolute immunity from a suit for malicious prosecution in the private law context was answered in the negative by this Court in Nelles. As the Court explained, the question was ultimately one of policy. The Court concluded that when a prosecutor acts maliciously, in fraud of his or her professional duties, that prosecutor steps outside his or her proper role as “minister of justice”, and as a result, immunity from civil liability is no longer justified. Where an accused is wrongly prosecuted as a result of the prosecutor’s abusive actions, he or she may bring an action in malicious prosecution. Like the test for abuse of process, however, there is a stringent standard that must be met before a finding of liability will be made, in order to ensure that courts do not simply engage in the second-guessing of decisions made pursuant to a Crown’s prosecutorial discretion.
In deciding that absolute immunity from civil liability was not justified, the Court in Nelles made clear that the principles underlying the case for immunity were still engaged and informed the high threshold to be met in an action for malicious prosecution (at p. 199):
Further, it is important to note that what we are dealing with here is an immunity from suit for malicious prosecution; we are not dealing with errors in judgment or discretion or even professional negligence. By contrast the tort of malicious prosecution requires proof of an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve and as such incorporates an abuse of the office of the Attorney General and his agents the Crown Attorneys.
In Proulx, at para. 4, the Court reiterated the stringent test for malicious prosecution established in Nelles:
Under our criminal justice system, prosecutors are vested with extensive discretion and decision-making authority to carry out their functions. Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess a prosecutor’s judgment calls when assessing Crown liability for prosecutorial misconduct. Nelles affirmed unequivocally the public interest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances.
Thus, the public law doctrine of abuse of process and the tort of malicious prosecution may be seen as two sides of the same coin: both provide remedies when a Crown prosecutor’s actions are so egregious that they take the prosecutor outside his or her proper role as minister of justice, such that the general rule of judicial non‑intervention with Crown discretion is no longer justified. Both abuse of process and malicious prosecution have been narrowly crafted, employing stringent tests, to ensure that liability will attach in only the most exceptional circumstances, so that Crown discretion remains intact.
The respondents and some of the interveners in the present appeal urge that the test for malicious prosecution be amended such that malice under the fourth element may be inferred solely from a finding of lack of reasonable and probable grounds under the third element. They argue that to require independent evidence of malice presents too high a barrier for any wrongly prosecuted person to obtain a remedy against a Crown prosecutor. In my view, these arguments are ill-conceived and do not account for the careful balancing established in Nelles and Proulx between the right of individual citizens to be free from groundless criminal prosecutions and the public interest in the effective and uninhibited prosecution of criminal wrongdoing: Philip H. Osborne, The Law of Torts, (3rd ed. 2007), at p. 245. As this Court made plain in Nelles, the “inherent difficulty” in proving a case of malicious prosecution was an intentional choice by the Court, designed to preserve this balance (p. 199).
4.3 The Elements of Malicious Prosecution: A Brief Overview
Under the first element of the test for malicious prosecution, the plaintiff must prove that the prosecution at issue was initiated by the defendant. This element identifies the proper target of the suit, as it is only those who were “actively instrumental” in setting the law in motion that may be held accountable for any damage that results: Danby v Beardsley (1880), 43 L.T. 603 (C.P.), at p. 604. As against a Crown prosecutor, the initiation requirement will be satisfied where the defendant Crown makes the decision to commence or continue the prosecution of charges laid by police, or adopts proceedings started by another prosecutor: Clerk & Lindsell on Torts (19th ed. 2006), at p. 979; J. G. Fleming, The Law of Torts, (9th ed. 1998), at p. 677.
The second element of the tort demands evidence that the prosecution terminated in the plaintiff’s favour. This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. The favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay. However, where the termination does not result from an adjudication on the merits, for example, in the case of a settlement or plea bargain, a live issue may arise whether the termination of the proceedings was “in favour” of the plaintiff: see, for example, Ramsay v Saskatchewan, 2003 SKQB 163, 234 Sask. R. 172; Hainsworth v Ontario (Attorney General),  O.J. No. 1390 (Q.L.) (S.C.J.); Hunt v Ontario,  O.J. No. 5284 (Q.L.) (S.C.J.); Ferri v Root, 2007 ONCA 79, 279 D.L.R. (4th) 643. Whether the second element of malicious prosecution was satisfied in the present case was a live issue at trial; however, the question is not before the Court.
Of course, criminal proceedings may terminate in favour of an accused for a number of reasons and an accused’s success in a criminal proceeding does not mean the prosecution was improperly initiated. The third element which must be proven by a plaintiff – absence of reasonable and probable cause to commence or continue the prosecution – further delineates the scope of potential plaintiffs. As a matter of policy, if reasonable and probable cause existed at the time the prosecutor commenced or continued the criminal proceeding in question, the proceeding must be taken to have been properly instituted, regardless of the fact that it ultimately terminated in favour of the accused. I will say more about this later in these reasons.
Finally, the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff’s case for malicious prosecution, regardless of whether the defendant is a private or public actor. Malicious prosecution, as the label implies, is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fuelled by malice. The malice requirement is the key to striking the balance that the tort was designed to maintain: between society’s interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect. I return to the malice element in the course of the analysis, below.
I now turn to a more detailed consideration of the issues live on this appeal, starting with the absence of the reasonable and probable cause element of the tort.
4.4 The Absence of Reasonable and Probable Cause
The third element requires a plaintiff to prove an absence of reasonable and probable cause for initiating the prosecution. Since malicious prosecution is an intentional tort that targets a prosecutor’s decision to initiate criminal proceedings, this element is generally couched in terms of the prosecutor’s belief in the existence of reasonable and probable cause. It is well established that the reasonable and probable cause inquiry comprises both a subjective and an objective component, such that for grounds to exist, “[t]here must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances” (Nelles, at p. 193). Although stated in the affirmative, the onus is clearly on the plaintiff to prove the absence of reasonable and probable cause.
Two issues are raised in this appeal regarding the third element of the tort in an action taken against a Crown prosecutor. First, the parties seek guidance in respect of the standard of belief which should inform the prosecutor’s decision to initiate or continue a prosecution, as it appears that there is some uncertainty on this issue. Second, given that the reasonable and probable cause inquiry in a public prosecution is not concerned with the prosecutor’s personal views as to the accused’s guilt, but with his or her professional assessment of the legal strength of the case, the question is raised whether the third element of the tort should turn solely on the existence or absence of objective grounds, leaving any inquiry into the prosecutor’s subjective state of belief to the fourth element, the question of malice. I will deal first with the requisite standard of belief.
In Nelles, Lamer J. adopted the definition of reasonable and probable grounds from Hicks v Faulkner (Q.B.D.), at p. 171, per Hawkins J., aff’d (1882), 46 L.T. 130 (C.A.), stating as follows (at p. 193):
Reasonable and probable cause has been defined as “an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
This standard of belief is commonly referred to as the “probable guilt” standard.
In Proulx, the Court elaborated on this standard, stating the following (at para. 31):
To say that a prosecutor must be convinced beyond a reasonable doubt of an accused person's guilt before bringing charges is obviously incorrect. That is the ultimate question for the trier of fact, and not the prosecutor, to decide. However, in our opinion, the Crown must have sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt before reasonable and probable cause exists, and criminal proceedings can be initiated. A lower threshold for initiating prosecutions would be incompatible with the prosecutor’s role as a public officer charged with ensuring justice is respected and pursued.
[underlining added; italics in original]
In the wake of Proulx, some commentators queried whether the Court’s elaboration of the “probable guilt” standard represented a shift away from the threshold established in Nelles, towards a higher standard akin to the “reasonable prospect of conviction” standard found in most Crown policy manuals across Canada: see, e.g., T. L. Archibald, “The Widening Net of Liability for Police and Public Officials in the Investigation of Crimes”, in T. L. Archibald and M. Cochrane, eds., Annual Review of Civil Litigation, 2001 (2002) 1, at p. 9. See also J. Pearson, “Proulx and Reasonable and Probable Cause to Prosecute” (2002), 46 C.R. (5th) 156.
In my view, the distinction between the standards set out in Nelles and Proulx ensues from the fact that the tort of malicious prosecution predates the institution of public prosecutions. As stated earlier, principles established in suits between private parties cannot simply be transposed to cases involving Crown defendants without necessary modification. In Wilson v Toronto (Metropolitan) Police Service,  O.J. No. 2434 (QL) (S.C.J.), a decision preceding Proulx, Dambrot J. rightly noted that the definition of reasonable and probable cause quoted in Nelles does not reflect the proper role of a modern Crown attorney. As he states, “when Hawkins J. formulated this definition [in Hicks v Faulkner], he clearly did not have prosecuting counsel in mind” (para. 31). Dambrot J. expressed the view that, while the accuser’s personal belief in the probable guilt of the accused may be an appropriate standard in a private suit, it is not a suitable definition of the subjective element of reasonable and probable cause in an action for malicious prosecution against Crown counsel (para. 33). Although Dambrot J.’s decision is not referred to in Proulx, the Court’s elaboration of the standard in the latter reflects his concern in Wilson. As made plain in Proulx, the reasonable and probable cause inquiry is not concerned with a prosecutor’s personal views as to the accused’s guilt, but with his or her professional assessment of the legal strength of the case. Given the burden of proof in a criminal trial, belief in “probable” guilt therefore means that the prosecutor believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law.
As alluded to earlier, the standard found in most Crown policy manuals across the country governing the exercise of prosecutorial discretion to commence or continue a criminal proceeding is generally higher than the reasonable and probable cause requirement under the third element of the test for malicious prosecution. In Crown policy manuals, the initiation or continuation of a prosecution is generally not recommended unless there exists a reasonable prospect of conviction and it is in the public interest to pursue the criminal proceeding. It is within the realm of prosecutorial discretion to set appropriate standards and, as discussed above, the civil action is not a vehicle for embarking upon a judicial review of its exercise in particular cases. Accordingly, there is nothing discordant about a lower standard grounding civil liability.
That reasonable and probable cause concerns a Crown prosecutor’s professional, not personal, opinion on the merits of the case in question is an important aspect of the proper administration of justice. This issue was discussed at some length by the Honourable G. Arthur Martin, in Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) (“Martin Report”). I will only highlight some of the underlying concerns here.
To require that a Crown prosecutor’s decision to initiate a prosecution be based on the prosecutor’s personal views about the guilt of the accused would run counter to the impartial and quasi-judicial role of the prosecutor: Boucher. The Martin Report, at p. 70, explained as follows:
If only those cases were prosecuted in which Crown counsel firmly believed in the guilt of the accused, the settled notion that “the purpose of a criminal prosecution is not to obtain a conviction” may well be compromised in practice by prosecutors who, having formed the opinion that the accused is guilty, would therefore see it as their duty to obtain a conviction.
Conversely, where sufficient cause exists from a purely legal standpoint, the Crown prosecutor who harbours personal doubt about the guilt of the accused cannot substitute his or her own views for those of the judge or jury in making the threshold decision to go forward with a prosecution. The Martin Report explains as follows, at pp. 71-72:
Crown counsel need not and ought not to be substituting his or her own views for those of the trial judge or jury, who are the community’s decision makers. It cannot be forgotten that much of the public’s confidence in the administration of justice is attributable to the trial court process that ensures that justice is not only done, but is seen to be done .... Granting Crown counsel the power to initiate or discontinue prosecutions based on a subjective assessment of whether or not the accused is guilty would, in some circumstances, be tantamount to replacing these open, impartial, and community-based processes with the unexplained, unreviewable decisions of prosecutorial officials who have no direct accountability to the public.
The reasonable and probable cause requirement in the civil action for malicious prosecution is intended to weed out those cases where there was a basis for invoking the criminal process. As Sopinka J. noted:
The rationale of a tort of action for damages for malicious prosecution is that the court’s process has been abused by wrongfully invoking the law on a criminal charge. The tort has been restricted, however, to ensure that criminals can be brought to justice without making prosecutors fear an action for damages if a prosecution fails.
(J. Sopinka, “Malicious Prosecution: Invasion of Charter Interests: Remedies: Nelles v Ontario: R v Jednynack: R v Simpson” (1995), 74 Can. Bar Rev 366, at p. 366.)
This brings us to the question of whether the inquiry into the prosecutor’s subjective state of belief properly belongs at the third stage of the test where the action is taken against a Crown attorney. For the reasons that follow, I conclude that it does not. Again here, we must be careful not to transpose principles developed in an era that predates the institution of public prosecutions without making the necessary modifications. The difficulty that arises is the following.
 As stated earlier, it is well established that the reasonable and probable cause requirement for instituting a prosecution has both a subjective and an objective component. As a matter of logic, it therefore follows that the plaintiff, who bears the burden of showing an absence of reasonable and probable cause, would succeed by showing either an absence of subjective belief or an absence of objective reasonable grounds. While there is no clear precedent to that effect in Canadian case law, the weight of precedent in England and other common law jurisdictions supports that proposition. See, for example,
Glinski v McIver,  1 All E.R. 696 (H.L.), at pp. 721‑22;
A. v State of New South Wales,  HCA 10,  3 L.R.C. 693;
Marley v Mitchell (1988),  N.Z.A.R. 181 (C.A.).
That the plaintiff should succeed at the third stage upon showing an absence of objective grounds, even though the prosecutor believed they existed, is consistent with the rationale underlying the third element of the tort. A pure subjective belief in a person’s guilt without any basis in actual fact can hardly constitute sufficient justification for initiating a criminal prosecution against the plaintiff. That the plaintiff should also succeed at the third stage upon showing that the prosecutor did not believe there was reasonable and probable cause (even though, objectively, such cause did exist at the time) is not so easily rationalized. In the context of a public prosecution, it requires further discussion.
As we have seen, historically cases of malicious prosecution involved disputes between private litigants. In that context, a case can be made that the absence of a subjective belief, regardless of the actual facts, should satisfy the third element of the tort. As one author aptly puts it, in establishing “the absence of reasonable and probable cause operating on the mind of the defendant”, “[s]ometimes a case may be made out, whatever the state of facts may be, by means of evidence that the defendant did not believe in the justice of his own prosecution, for if there is so, there is no reasonable and probable cause for him”: Clerk & Lindsell on Torts, at p. 981(emphasis in original). In the absence of the requisite subjective belief, the private prosecutor, who is not charged with the execution of any public duty, has no reason for invoking the criminal process against the plaintiff and hence no defence left on the third element of the tort.
The prosecutor’s mere lack of subjective belief in sufficient cause, where objective reasonable grounds do in fact exist, cannot provide the same determinative answer on the third element in the context of a public prosecution. Unlike the situation in a purely private dispute, the public interest is engaged in a public prosecution and the Crown attorney is duty-bound to act solely in the public interest in making the decision whether to initiate or continue a prosecution. Consequently, where objective reasonable grounds did in fact exist at the relevant time, it cannot be said that the criminal process was wrongfully invoked. Further, as discussed above, the decision to initiate or continue the prosecution may not entirely accord with the individual prosecutor’s personal views about a case as Crown counsel must take care not to substitute his or her own views for that of the judge or the jury. Therefore, in the context of a public prosecution, the third element of the test necessarily turns on an objective assessment of the existence of sufficient cause. As we shall see, the presence or absence of the prosecutor’s subjective belief in sufficient cause is nonetheless a relevant factor on the fourth element of the test, the inquiry into malice.
The Court’s analysis in Nelles lends further support to the conclusion that the third element of the tort turns on the objective assessment of reasonable and probable cause. Unlike the question of subjective belief, which is a question of fact, the objective existence or absence of grounds is a question of law to be decided by the judge: Nelles, at p. 193. As noted in Nelles (at p. 197), the fact that the absence of reasonable and probable cause is a question of law means “that an action for malicious prosecution can be struck before trial as a matter of substantive inadequacy”, or on a motion for summary judgment. These mechanisms are important “to ensure that frivolous claims are not brought” (Nelles, at p. 197). In some provinces, the ultimate decision as to whether or not there was reasonable and probable cause for instituting the prosecution is reserved by statute for the trier of fact: see, e.g., Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(10), and Jury Act, R.S.P.E.I. 1988, c. J-5, s. 3(5). Nonetheless, in the absence of any express provision to the contrary, the question whether there is a sufficient case to be put to the jury will remain a matter to be determined by the judge as a matter of law, in accordance with the respective roles of the judge and the jury. Therefore, factual inadequacy in a motion to strike a pleading or on a motion for summary judgment can still form a basis for the pre-trial striking of the pleading or the dismissal of the action, even where the ultimate determination of the issue may be expressly reserved by statute to the jury. See for example, Wilson, per Dambrot J.
If the court concludes, on the basis of the circumstances known to the prosecutor at the relevant time, that reasonable and probable cause existed to commence or continue a criminal prosecution from an objective standpoint, the criminal process was properly employed, and the inquiry need go no further. See, e.g., Al’s Steak House & Tavern Inc. v Deloitte & Touche (1999), 45 C.C.L.T. (2d) 98 (Ont. Ct. (Gen. Div)), at paras. 11-13.
In carrying out the objective assessment, care must be taken in retroactively reviewing the facts actually known to the prosecutor at the relevant time – that is, when the decision to initiate or continue the proceeding was made. The reviewing court must be mindful that many aspects of a case only come to light during the course of a trial: witnesses may not testify in accordance with their earlier statements; weaknesses in the evidence may be revealed during cross-examination; scientific evidence may be proved faulty; or defence evidence may shed an entirely different light on the circumstances as they were known at the time process was initiated.
If a judge determines that no objective grounds for the prosecution existed at the relevant time, the court must next inquire into the fourth element of the test for malicious prosecution: malice.
4.5 Malice: A Primary Purpose Other Than Carrying The Law Into Effect
The malice element of the test for malicious prosecution considers a defendant prosecutor’s mental state in respect of the prosecution at issue. Malice is a question of fact, requiring evidence that the prosecutor was impelled by an “improper purpose”. In Nelles, Lamer J. explained the meaning of “improper purpose” in this context (at pp. 193-94):
To succeed in an action for malicious prosecution against the Attorney General or Crown Attorney, the plaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, and malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of “minister of justice”. In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice. In fact, in some cases this would seem to amount to criminal conduct.
[emphasis in original]
In order to prove malice, a plaintiff must, in accordance with Nelles, bring evidence that the defendant Crown was acting pursuant to an improper purpose inconsistent with the office of the Crown attorney. As we have seen, in deciding whether to initiate or continue a prosecution, the prosecutor must assess the legal strength of the case against the accused. The prosecutor should invoke the criminal process only where he or she believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law. It follows that, if the court concludes that the prosecutor initiated or continued the prosecution based on an honest, albeit mistaken, professional belief that reasonable and probable cause did in fact exist, he or she will have acted for the proper purpose of carrying the law into effect and the action must fail.
The inverse proposition, however, is not true. The absence of a subjective belief in sufficient grounds, while a relevant factor, does not equate with malice. It will not always be possible for a plaintiff to adduce direct evidence of the prosecutor’s lack of belief. As is often the case, a state of mind may be inferred from other facts. In appropriate circumstances, for example when the existence of objective grounds is woefully inadequate, the absence of a subjective belief in the existence of sufficient grounds may well be inferred. However, even if the plaintiff should succeed in proving that the prosecutor did not have a subjective belief in the existence of reasonable and probable cause, this does not suffice to prove malice, as the prosecutor's failure to fulfill his or her proper role may be the result of inexperience, incompetence, negligence, or even gross negligence, none of which is actionable: Nelles, at p. 199; Proulx, at para. 35. Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice. The third and fourth elements of the tort must not be conflated.
As discussed earlier, a demonstrable “improper purpose” is the key to maintaining the balance struck in Nelles between the need to ensure that the Attorney General and Crown prosecutors will not be hindered in the proper execution of their important public duties and the need to provide a remedy to individuals who have been wrongly and maliciously prosecuted. By requiring proof of an improper purpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutor proceeds, absent reasonable and probable grounds by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence. In Nelles, Lamer J. stated, at pp. 196-97:
It should be noted that what is at issue here [in a suit for malicious prosecution] is not the exercise of a prosecutor’s discretion within the proper sphere of prosecutorial activity as defined by his role as a “minister of justice”. Rather, in cases of malicious prosecution we are dealing with allegations of misuse and abuse of the criminal process and of the office of the Crown Attorney. We are not dealing with merely second-guessing a Crown Attorney’s judgment in the prosecution of a case but rather with the deliberate and malicious use of the office for ends that are improper and inconsistent with the traditional prosecutorial function.
The test was reiterated in Proulx (para. 35). The circumstances in Proulx provide an example of a prosecution motivated by an improper purpose sufficient to ground liability for malicious prosecution. The circumstances can be briefly summarized as follows.
In Proulx, Crown counsel concluded in 1986 that there did not exist sufficient evidence to prosecute Proulx for the murder, and the case was closed. Five years later, in the midst of a widely publicized defamation action launched by Proulx against a radio station and a retired police officer who had worked on his case, the prosecutor was advised by the defendants in the defamation case of a potential new identification witness. The prosecutor added the retired police officer to the prosecution team notwithstanding that he was a defendant in the defamation action, reopened the file and went ahead with the prosecution of Proulx for murder. The Crown attorney was aware of the retired police officer’s involvement in the defamation action but allowed him to gather evidence against Proulx without restriction. Proulx was convicted. The conviction was reversed on appeal and an acquittal entered, with the court strongly criticizing the lack of credible evidence. Proulx then launched a malicious prosecution action against the Crown attorney.
Writing for the majority, Iacobucci and Binnie JJ. began with the proposition from Nelles that malice involves “serious allegations, which relate to the misuse and abuse of the criminal process and the office of the Crown Attorney” (para. 35). They found that the evidence demonstrated the improper mixing of public and private business and that the prosecutor had knowingly manipulated evidence before the jury and prosecuted Proulx with “an active effort to obtain a conviction at any price” (para. 41). They therefore concluded that the prosecutor lent his office to a defence strategy in a defamation case, which was a perversion of the powers of the office of the Crown and an abuse of his prosecutorial power, holding (at para. 43):
In our opinion, this juxtaposition of events shows the importance of the prosecutor’s duty not to allow the criminal process to be used as a vehicle to serve other ends, in this case the ends of Arthur and Tardif in attempting to defend against the appellant’s defamation action. The Crown made the decision to prosecute with the full knowledge that prosecuting the appellant would potentially assist the defendants in the defamation actions. This was thus more than a simple abdication of prosecutorial responsibilities to the police or, in the case of Tardif, to a former police officer. Rather, the prosecutor lent his office to a defence strategy in the defamation suits and, in so doing, was compromised by Tardif’s manipulation of the evidence and the irregularities that took place during the 1991 investigation process.
The court must consider the relevant evidence and decide whether, on a balance of probabilities, the prosecutor was in fact motivated by an improper purpose. Consistent with the approach courts must take in every case, this requires an assessment of the “totality of all the circumstances” (Proulx, at para. 37). The need to consider the “totality of all the circumstances” does not mean that the court is to embark on a second‑guessing of every decision made by the prosecutor during the course of the criminal proceedings. It simply means that a court shall review all evidence related to the prosecutor’s state of mind, including any evidence of lack of belief in the existence of reasonable and probable cause, in deciding whether the prosecution was in fact fuelled by an improper purpose, as alleged.
Evidence of the prosecutor’s lack of subjective belief in reasonable and probable cause may assist in proving that the prosecution was driven by an improper purpose. However, for the reasons explained earlier, malice cannot simply be inferred from a finding of absence of belief in reasonable and probable cause alone, as the latter is equally consistent with prosecutorial conduct that is not actionable. Care must be taken not to transpose principles derived in the context of private prosecutions, where an inference of malice from absence of cause does not carry the same difficulties, to cases involving Crown defendants. I will explain.
As noted above, the tort of malicious prosecution was born in the context of prosecutions between private parties, and the malice component of the tort developed accordingly. In many of the historical cases, the parties in a malicious prosecution action had a pre-existing relationship, and the surrounding circumstances were such that it was possible to infer an improper motive from the groundlessness of the prosecution alone: see, e.g.,
Jewhurst (prosecution initiated to collect a pre-existing debt);
Gabler (prosecutor sought to take physical possession of an office); and
Love (prosecution commenced to procure the value or return of a cow).
As a result, courts in early cases of malicious prosecution were prepared to infer malice from a finding that the prosecution was initiated absent reasonable and probable grounds. Indeed, the circumstances of these cases easily gave rise to the question: why else would a private person initiate a prosecution based entirely on facts not believed to be true, or worse still, known to be false?
While it may have made sense in the context of historical private prosecutions to infer malice from absence of reasonable and probable cause in certain circumstances, a public prosecution presents a very different context. A finding of absence of reasonable and probable grounds on the objective standard is entirely equivocal in terms of a Crown prosecutor’s purpose, particularly given that reasonable prosecutors may differ on whether a certain body of evidence rises to the requisite threshold. Likewise, a conclusion that a prosecutor lacked a subjective belief in sufficient cause but proceeded anyways is equally consistent with non-actionable conduct as with an improper purpose. To permit an inference of malice from absence of reasonable and probable grounds alone would nullify the very purpose of the malice requirement in an action for malicious prosecution and risk subjecting Crown prosecutors to liability when they err within the boundaries of their proper role as “ministers of justice”.
In summary, the malice element of the test for malicious prosecution will be made out when a court is satisfied on a balance of probabilities, that the defendant Crown prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a “minister of justice”. The plaintiff must demonstrate on the totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice such that he or she exceeded the boundaries of the office of the Attorney General. While the absence of a subjective belief in reasonable and probable cause is relevant to the malice inquiry, it does not dispense with the requirement of proof of an improper purpose.
I now turn to the facts of the present appeal.
5. Application to This Case
As stated earlier, the Court of Appeal was unanimous in concluding that the trial judge erred in attributing malice to Miazga on the basis of facts he viewed as “strong indicators of malice”. The court found that the trial judge’s conclusions in this regard were based on erroneous assumptions, errors in law, or were unsupported by the evidence. For the reasons given by the Court of Appeal below, I agree that the trial judge’s “indicators of malice” find no support in law or on the record. It is also my respectful view that the approach adopted by the trial judge in his review of Miazga’s conduct of the prosecution exemplifies the very kind of second‑guessing of prosecutorial discretion that Nelles aimed to prevent.
The only question remaining is whether the majority of the Court of Appeal was nonetheless correct in law in upholding the trial judge’s finding that Miazga was liable for malicious prosecution. As stated earlier, the majority’s conclusion essentially hinged on the trial judge’s finding that Miazga lacked a subjective belief in reasonable and probable cause. Accordingly, it is necessary to review the basis for this factual finding and to determine whether, in law, it can support the conclusion of the majority of the Court of Appeal.
The trial judge found that the prosecution lacked reasonable and probable grounds from an objective standpoint, and that Miazga did not possess a subjective belief in the existence of grounds when he decided to proceed against the respondents. The conclusions on both objective and subjective components were premised on the trial judge’s view that the R. children’s allegations were incredible, and that no prosecutor could possibly accept their bizarre allegations, absent corroborating evidence, nor believe the children to be credible witnesses (para. 362). This premise was accepted by the majority of the Court of Appeal (at para. 135), and was the basis of its decision to uphold the trial judge’s finding on absence of reasonable and probable grounds.
In dissent, Vancise J.A. characterized the trial judge’s conclusion that nobody could have reasonably believed the allegations made by the R. children as a palpable and overriding error. He noted that Dueck obviously believed the children since he was told that if he believed the children he should proceed to lay the charges and, in due course, he did. Further, several judges at both the trial and appellate levels accepted and relied upon the same allegations by the R. children in convicting their biological parents. Finally, this was a case based on credibility which makes it particularly difficult to establish an absence of reasonable and probable cause. While it may be easy in hindsight to say that the evidence of the children lacked credibility, “[c]learly an experienced trial judge found the evidence credible” (para. 259). In the view of Vancise J.A., reliance on the findings of those courts did not constitute improper “bootstrapping” of the kind discussed in Proulx.
As indicated at the outset of these reasons, no useful purpose would be served at the conclusion of this painful saga by revisiting the nature of the allegations against the respondents and determining whether they met the objective standard of reasonable and probable cause. However, it is necessary to deal with the trial judge’s conclusion that Miazga did not have a subjective belief in the existence of reasonable and probable grounds because it formed the basis for the majority in the court below to conclude that malice had been proven.
I agree with Vancise J.A. that the trial judge’s basis for concluding that Miazga did not have the requisite subjective belief amounts to a palpable and overriding error and, as such, is not entitled to deference. Miazga testified that while he did not believe the ritualistic or satanic aspect of the allegations (which were not made against these respondents), he believed the children. The trial judge did not reject this testimony but faulted Miazga for failing to state that he believed in the respondents’ “probable guilt”. However, even if he had so testified, his testimony would have been rejected because, in the trial judge’s view, the children’s allegations could not possibly give rise to a reasonable belief in probable guilt. I agree with Vancise J.A., for the reasons that he gave, that this conclusion is not supported by the evidence. I also agree that, in the circumstances of this case, reliance on the findings of courts in antecedent proceedings does not amount to improper “bootstrapping”, but simply belies the trial judge’s assertion that no one could possibly have believed the children.
I wish to add a general comment about “bootstrapping”. Generally speaking, in an action for malicious prosecution, “bootstrapping” occurs when a prosecutor argues that he or she had reasonable and probable grounds to commence or continue a prosecution on the basis of subsequent judicial determinations made at the preliminary inquiry or the trial itself. While a determination of guilt at a criminal proceeding is not determinative of the reasonable and probable cause question under the third prong of the test for malicious prosecution, it is a relevant factor that may be properly considered in ascertaining the existence or absence of reasonable cause. Giving weight to antecedent judicial determinations works to ensure consistency between the criminal and civil justice systems. The intervener, the Attorney General of Canada, explains the justification for this practice, at para. 20 of its factum:
Giving evidentiary weight in a civil action to the fact that a prima facie case of guilt was found in earlier criminal proceedings takes into account the jurisdiction of the criminal court and the similarity of the facts in dispute. Neither a committal after a preliminary inquiry nor a dismissal of a non-suit motion at the close of the Crown’s case in a trial is necessarily determinative of the reasonable and probable cause issue, but those determinations are objectively compelling, at least where no new facts have emerged. The judicial decisions in the criminal process may thus support a finding by a civil court that reasonable and probable cause for prosecution existed.
Absent a fundamental flaw in the criminal proceedings relied upon, it is perfectly reasonable that antecedent judicial determinations may support a finding by a civil court that there existed reasonable and probable cause for an impugned criminal prosecution.
I now turn to the question of malice.
The majority in the court below accurately stated the legal framework for malicious prosecution (at paras. 80-96), in accordance with both Nelles and Proulx. Where the majority appears to have taken the wrong path, in my respectful view, is at the following passage (at para. 97):
There is a good deal of merit to the argument for a test requiring some proof of malice in addition to and independent of the lack of reasonable and probable cause. However, as will be seen from our conclusion in this case, the test cannot be reduced to such a rigid formula. As stated in Proulx, at para. 37, in determining an issue of malice, “it is the totality of all the circumstances that are to be considered in cases of this kind”.
The majority of the Court of Appeal relied on the “totality of all the circumstances” requirement in Proulx to forego the need for evidence beyond absence of reasonable and probable cause to prove that Miazga was in fact actuated by an improper purpose. As recounted at the outset of these reasons, the Court of Appeal was unanimous in overturning virtually all of the facts relied upon by the trial judge as indicative of malice on the part of Miazga. Without identifying any improper purpose, the majority then concluded (at para. 132) that “there is one aspect of the trial judge’s determination that there was lack of reasonable and probable cause that clearly and unequivocally tips the balance against Miazga” – the finding that Miazga did not subjectively hold an honest belief in the guilt of the respondents. By concluding that Miazga’s lack of subjective belief in the existence of grounds was sufficient to ground a finding of malice, the majority, with respect, fell prey to the very error they correctly identify as problematic in the trial judge’s reasons (at para. 131):
.... what seems to be missing from the reasons for judgment is any explanation of why the [trial] judge considered the actions in question to indicate malice in the sense of some improper purpose, rather than merely indications of simple bad judgment, negligence or recklessness. It seems to us that most of the actions are equivocal in indicating the prosecutor’s intentions.
As explained earlier, the malice element of malicious prosecution requires proof of an improper purpose so as to differentiate between prosecutorial conduct that is not actionable and that which is, by virtue of the fact that it brings the prosecutor outside of his or her role as “minister of justice”. As Vancise J.A. aptly noted, neither the plaintiffs nor the courts below have pointed to any such improper purpose that impelled Miazga to prosecute the respondents.
6. Conclusion and Disposition
In the result, I would allow the appeal and dismiss the action. As the appellant does not request costs, I make no order as to costs.
Michael D. Tochor, Q.C., and Gregory Fingas (m/s MacPherson Leslie & Tyerman, Regina), for the appellant.
Edward Holgate (m/s Borden Holgate Law Office, Saskatoon), for the respondents Estate of Dennis Kvello (by his personal representative, Diane Kvello), Diane Kvello, S.K.1, S.K.2, Pamela Sharpe, Estate of Marie Klassen (by her personal representative, Peter Dale Klassen), John Klassen, Myrna Klassen, Peter Dale Klassen and Anita Janine Klassen.
Richard Klassen, on his own behalf and on behalf of the respondent Kari Klassen.
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