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Interim Judgment in Klassen/Kvello lawsuit page 2

(Finding on the nonsuit application)

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Malicious Prosecution Cause of Action

1. The Classic Elements and their Definition (Nelles)

[22] I begin by ruling on the non-suit motions respecting the malicious prosecution cause of action, the primary cause of action alleged by the plaintiffs against each of the defendants. It is not a common cause of action but has become more so, especially in the last decade. The elements of this cause of action were clearly identified several years ago in Nelles v. Ontario, supra, at p. 193 as follows:

a) the proceedings must have been initiated by the defendant;/dt>
b) the proceedings must have terminated in favour of the plaintiff;
c) the absence of reasonable and probable cause;
d) malice, or a primary purpose other than that of carrying the law into effect.

[23] The court observed at p. 193 that the first two elements are straightforward and largely speak for themselves but went on to comment on the last two elements. It stated that the third element contains both a subjective element (an actual belief) and an objective element (a belief that is reasonable in the circumstances). The court adopted the definition of reasonable and probable cause set out by Hawkins J. in Hicks v. Faulkner (1878), 8 Q.B.D. 167 at p. 171: . . . "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". . . .

[24] The court defined at p. 193 the fourth element as follows: The required element of malice is for all intents, the equivalent of "improper purpose". It has according to Fleming, a "wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage" (Fleming, op. cit., at p. 609). . . .

[25] As observed by the court at p. 199, "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". It is more than "errors in judgment or discretion or even professional negligence".

[26] At p. 194, the court commented on the difficult task facing a plaintiff in a malicious prosecution action: By way of summary then, a plaintiff bringing a claim for malicious prosecution has no easy task. Not only does the plaintiff have the notoriously difficult task of establishing a negative, that is the absence of reasonable and probable cause, but he is held to a very high standard of proof to avoid a nonsuit or directed verdict (see Fleming, op. cit., at p. 606, and Mitchell v. John Heine and Son Ltd. (1938), 38 S.R. (N.S.W.) 466, at pp. 469-71). Professor Fleming has gone so far as to conclude that there are built-in devices particular to the tort of malicious prosecution to dissuade civil suits (at p. 606): The disfavour with which the law has traditionally viewed the action for malicious prosecution is most clearly revealed by the hedging devices with which it has been surrounded in order to deter this kind of litigation and protect private citizens who discharge their public duty of prosecuting those reasonably suspected of crime.

[27] The role of a Crown prosecutor was described years ago by the Supreme Court of Canada in Boucher v. R., [1955] S.C.R. 16 at 23-24: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

[28] This definition has been referred to with approval by the Supreme Court in each of the Nelles and Proulx decisions.

2. Further Clarification (Proulx)

[29] The Supreme Court of Canada adopted the Nelles elements and policy considerations in Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, 2001 SCC 66. The court held that the circumstances of the case were exceptional and upheld the damage award granted by the trial judge in the malicious prosecution action. The court again focussed on the third and fourth elements of the cause of action and made some additional comments and findings that further clarify the nature of such actions. They are summarized as follows:

1. The court must determine in its opinion, whether the Crown had sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt. Only then would reasonable and probable cause exist to permit criminal proceedings to be initiated. A lower threshold for initiating prosecutions would be incompatible with the prosecutor's role as a public officer charged with ensuring that justice is respected and pursued. (para. 31)

2. In certain cases involving the credibility of a key witness, the court may consider why the prosecutor did not question or scrutinize the credibility of that witness. (para. 43)

3. A prosecutor cannot bootstrap his own position on the basis of preliminary inquiry committals or flawed court decisions that were swept away by an appeal acquittal. This is so because these events post-dated the prosecutor's decision and were decisions governed by different considerations. (para. 32)

4. The fact that a prosecutor may have been persuaded of the accused's guilt is not the sole issue. The question for him when he laid the charge was whether he could prove it. (para. 18)

5. A prosecutor cannot rely on consultations that he had with colleagues and superiors if he knew more about the case than they did. As the holder of an important office under the Criminal Code of Canada, R.S.C. 1985, c. C-46, the decision to lay the charge was his and his alone: R. v. Campbell, [1999] 1 S.C.R. 565. (para. 33)

6. A suit for malicious prosecution must be based on more than recklessness or gross negligence. It requires evidence that reveals a willful and intentional effort on the Crown's part to abuse or distort its proper role within the criminal justice system. The key to a malicious prosecution action is malice, but the concept of malice in this context includes prosecutorial conduct that is fueled by an "improper purpose", a purpose that is "inconsistent with the status of 'minister of justice'". (para. 35)

7. There may be various factors that are indicators of an improper purpose underlying the Crown's decision to initiate proceedings against the accused. One may be no more significant than another. In the final analysis, it is the totality of all the circumstances that are to be considered. (para. 37)

8. The lack of reasonable and probable cause may be an indicator of malice in exceptional circumstances, where in the opinion of the court, no prosecutor acting in good faith would have proceeded to trial on a serious charge with such a substandard and incomplete proof. (para. 38)

9. The court must determine the issue on a balance of probabilities. The question for the court is what motivated the prosecutor. If it was a simple lapse of judgment, the plaintiff has no cause of action. But if the prosecutor allowed his office to be used in aid of another cause, this is a perversion of powers and an abuse of prosecutorial power. This constitutes malice in law. It is also malice if the prosecutor decided to go after the accused to secure a conviction at all costs and conducted the case with not only "tunnel vision", but "tainted tunnel vision". In either case, there would be a flagrant disregard for the rights of the accused fueled by motives that were improper. (para. 44)

10. In highly exceptional cases, unless Nelles is to be read as staking out a remedy that is available only in theory and not in practice, the accused is entitled to hold the prosecutor accountable in the civil action brought following the abusive prosecution. (para. 44) 3. Recent Lower Court Decisions [30] Recent lower court decisions have elaborated on these third and fourth elements of malicious prosecution. They are particularly helpful in that they are examples of how the courts have applied the law to the facts of different kinds of cases. I have summarized the findings in many of them because they have precedential application to many of the issues in the case before me.

[31] In Klein v. Seiferling, [1999] 10 W.W.R. 554 (Sask. Q.B.), my colleague Klebuc J. dealt with a case that involved claims of malicious prosecution and false imprisonment. He reviewed many of the authorities that I have referred to in the case before me. Many of the factual issues he was required to deal with were of a similar nature to those alleged in the case before me. He relied on the comments of Cory J. in R. v. Storrey (1990), 75 C.R. (3d) 1 (S.C.C.), at pp. 8-9, respecting what constitutes reasonable and probable grounds in connection with an arrest empowered by s. 495 of the Criminal Code. I realize that these comments focus on the right to arrest as opposed to a malicious prosecution action, but they do give some insight into the term "reasonable and probable": (p. 566) . . . In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. . . . . . . There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist, that is to say, a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest . . . [Emphasis added] The Hicks v. Faulkner objective test approved in Nelles, was applied by Klebuc J. and was quoted with approval in Dix v. Canada (Attorney General), 2002 ABQB 580, [2003] 1 W.W.R. 436 (Alta. Q.B.) at para. 354.

[32] Klebuc J. allowed the malicious prosecution and false imprisonment actions against the police officers. He held that they had no reasonable and probable grounds because the circumstances would have alerted a prudent person to proceed cautiously, to make further inquiries, to question the credibility of the witnesses' statements and to try to get some corroboration. Numerous inconsistencies in the evidence of different witnesses were warning signs that would have lead a prudent person to question the credibility of the evidence. Information subsequently received would have caused a reasonable person to reassess the information that was previously relied upon by the police officers.

[33] Instead, the officers went into a state of denial. Their desire for recognition by turning a suicide into a high profile murder, impaired their skills and judgment. Their haste, lack of concern for the frailty and inconsistency of the evidence and disregard for information inconsistent with their objective, were illustrative of their state of mind. They acted on flimsy and inadequate grounds and whatever belief they held was not objectively reasonable. [34] He also held that the police officers had malice. The manner in which they conducted their investigation constituted more than mere negligence or poor judgment. It was so reckless and devoid of reason and respect for the rights and security of the plaintiffs and the administration of justice that it was directly and inferentially malicious. They withheld vital information from the prosecutor regarding the limitations of a witness which they knew might have a bearing on his advice and the manner in which the Attorney General would deal with the plaintiffs. They deliberately ignored the quantity and quality of the evidence. Their primary motivation for arresting the plaintiffs, seeking a warrant for the arrest of another plaintiff and subsequently participating in the prosecution of them, was so inconsistent with their legal responsibilities and the administration of justice, that it alone constituted malice.

[35] He dismissed the actions against the Attorney General, holding that the police officers misrepresented to the prosecutor that a material witness was a person with no material limitations or difficulties and thereby avoided any discussion of whether his information should be questioned. In like manner the inconsistencies and conflicts in the information gleaned from other witnesses were never fully disclosed or discussed with the prosecutor. Thus the police officers knew that the opinion of the prosecutor was not an informed one based on the facts.

[36] Ritter J. in Dix v. Canada (Attorney General), supra, determined that the police and prosecutors lacked reasonable and probable grounds. He stated at para. 356: It is also not sufficient for police to simply say they received information and relied upon it. The police have a duty to explore the reliability of that information (Dumbell v. Roberts, [1944]

1 All E.R. 326 (Eng. C.A.); Campbell v. Hudyma (1985), 66 A.R. 222 (C.A.)). He also observed at para. 357: In addition, a police officer must take into account all the information available. A police officer is only entitled to disregard that which there is good reason to believe is not reliable. (Chartier v. Quebec (Attorney General), [1979]

2 S.C.R. 474 (S.C.C.); R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), appeal discontinued [1997] S.C.C.A. No. 571 (S.C.C.)). At para. 368 he states: By these words [Proulx, para. 34], the Supreme Court has made it clear that the objective element of the test involves consideration by the Court of the evidence the police or prosecutor considered or did not consider, and its evidentiary value at trial. . . . At para. 376 he states: Police are not able simply to pay attention to only that evidence which might serve to incriminate and to disregard that which might serve to exonerate (Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474). . . .

[37] Ritter J. also determined that certain of the police and prosecutor defendants had malice. He considered the issue of whether an absence of reasonable and probable cause by itself may lead to an inference of malice, as is the conclusion reached in Oniel v. Metropolitan Toronto Police Force (2001), 195 D.L.R. (4th) 59 (Ont. C.A.) at para. 49, leave to appeal dismissed without reasons, [2001] S.C.C.A. No. 121, (2001), 158 O.A.C. 199 (S.C.C.). He states at para. 527: I am fortified in my conclusion of the existence of malice on the further basis that prosecuting in the face of, or disregarding evidence which suggests that the Plaintiff is probably not guilty of the offence, can, even if not to a level sufficient on its own to raise an inference under Oniel, can form one element or factor which can be considered as going to proof of malice under the fourth part of the test set out in Nelles and Proulx. . . .

[38] This is the interpretation placed on this aspect of the Dix v. Canada (Attorney General) decision by Paisley J. in Gabadon v. Toronto Police Services Board (2003), 16 C.C.L.T. (3d) 225 (Ont. Sup. Ct. J.). In my view, proceeding with a prosecution in a case where there is no reasonable and probable cause may not of itself constitute malice, but it is certainly evidence from which an inference of malice can be drawn in an 22 appropriate case. See Lacombe et al. v. André et al. (2003), 11 C.R. (6th) 92 (Que. C.A.) at para. 86. There is nothing in Nelles or Proulx to suggest otherwise. Malice can usually be established only by inference from the other facts and circumstances of the case, including the conduct of the prosecutor. Proceeding without reasonable and probable cause is contrary to the law and demands a credible explanation, failing which the inference of malice can be drawn.

[39] The court observes in Lacombe et al. v. André et al., supra, at paras. 52-54, that in cases involving serious charges where the complainant's credibility is the very crux of the decision-making process of whether to lay charges, an investigation must take into consideration all the information available. The court held that a more thorough investigation would have made it possible to cast serious doubt on the authenticity of the charges and would have allowed the prosecutor to make a more informed decision.

[40] In cases involving defendants other than police officers and prosecutors, the law is not clear as to what circumstances must be established before these other classes of defendants can be found to "initiate proceedings" within the meaning of the first element of malicious prosecution. Successful malicious prosecution actions have been brought against persons other than police officers or prosecutors. In Romegialli v. Marceau (1963), 42 D.L.R. (2d) 481 (Ont. C.A.), the court stated at p. 482: . . . The gist of an action for damages for malicious prosecution is that it is an abuse of the process of the Court by wrongfully setting the law in motion on a criminal charge. . . .

[41] Walker J. in Berman v. Jenson (1989), 77 Sask. R. 161 (Q.B.) at p. 163 stated: . . . The defendant must have been "actively instrumental" in setting the law in motion. Simply giving a candid account, however incriminating, to the police is not the equivalent of launching a prosecution. The critical decision to prosecute is not that of the private person. . . .

[42] Failing to give a frank and candid account of events to police or participating in or interfering with the investigation and prosecution, may attract liability. Hinde v. Skibinski (1994), 21 C.C.L.T. (2d) 314 (Ont. Gen. Div.). A person may "institute proceedings" by giving information to the police which the person knew or ought to have known was false, misleading or incomplete or was given for reasons of malice. Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1998), 66 O.T.C. 16 at para. 32 (Gen. Div.). Such a defendant may be liable if the inevitable result of his or her conduct is such that a charge will be laid against the plaintiff. Fitzjohn v. Mackinder (1861), 9 C.B.N.S. 505 (Eng. Ex. Ct.).

[43] In Wood v. Kennedy (1998), 165 D.L.R. (4th) 542 (Ont. Gen. Div.), the court observed at p. 561: . . . The nature of her allegations was such that it was difficult, if not impossible, for the police to exercise any independent discretion or judgment, and in the circumstances, the police had little choice but to charge Robert Wood.

[44] In the recent case of Small v. Newfoundland, 2003 NLSCTD 90, (2003), 227 Nfld. & P.E.I.R. 1 at para. 103 (S.C.(T.D.)), the court adopted the statement in Clerk & Lindsell on Torts, 18th ed. (London: Sweet & Maxwell, 2000) at para. 16-12: This first element, initiation of the proceedings, was not discussed by the Supreme Court of Canada in Nelles or Proulx. Whether an informant can be held responsible for initiating a prosecution when police act on information offered was considered by the House of Lords in Martin v. Watson, [1996] A.C. 74. That case established that a person who gives information to the police on the basis of which a decision to prosecute is made by the police will not be liable for malicious prosecution unless:

(1) The defendant falsely and maliciously gave information about an alleged crime to a police officer stating a willingness to testify against the claimant and in such a manner as makes it proper to infer that the defendant desired and intended that a prosecution be brought against the claimant.

(2) The circumstances are such that the facts relating to the alleged crime are exclusively within the knowledge of the defendant so that it is virtually impossible for the police officer to exercise any independent discretion or judgment on the matter.

(3) The conduct of the defendant must be shown to be such that he makes it virtually inevitable that a prosecution will result from the complaint. His conduct is of a nature that "1/if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant".

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