Supreme Court Dismisses Malicious Prosecution Action Against Crown Attorney

In our practices we often represent municipalities and the Crown in civil litigation. Litigation against police forces and prosecutors seems to be increasing, including actions alleging malicious prosecution. The Supreme Court recently released a case on malicious prosecution which is of interest to those defending Crown Attorneys in such actions. The results are good news for Crown Attorneys. The Supreme Court seems to be attempting to strike a balance between allowing Crown Attorneys to perform their jobs on one hand, and preventing abuse of the system on the other.

In Miazga v. Kvello Estate, 2009 SCC 51, the plaintiffs were accused of sexually assaulting children in their care. The allegations were sensational, including ritualistic abuse and as many as twelve different adults involved. The charges were resolved in the plaintiffs’ favour when Crown Attorney Miazga entered a stay of proceedings prior to trial. The children subsequently recanted their allegations.

The Supreme Court reaffirmed the four requirements for a malicious prosecution action. The plaintiff must show the proceeding was:

1) initiated by the defendant;
2) terminated in favour of the plaintiff;
3) undertaken without reasonable and probable cause; and
4) motivated by malice or a primary purpose other than carrying the law into effect.

Justice Charron affirmed that decisions made by Crown Attorneys pursuant to their prosecutorial discretion are generally immune from judicial review. It is only when a Crown steps out of his or her role as a “minister of justice” that immunity is lost.

Although prosecutorial immunity is not absolute, there is a high standard in order to succeed in a malicious prosecution action against a Crown Attorney. In order to meet the malice requirement, more than recklessness, poor judgment or even gross negligence is required; it must be an abuse of prosecutorial power or a fraud on the process of criminal justice.

The Court dismissed the action as the plaintiffs had not proven the required elements.