The majority in Proulx c. Québec (Procureur général) reported ante p. 1, suggest their disagreement with the dissent "turns on the facts of this particular case". This article will argue that the disagreement between the majority and the dissent actually runs much deeper. In addition to disagreeing over whether the conduct of the prosecutor in the Proulx case amounted to malicious prosecution, the majority and the dissent apply fundamentally different versions of the prosecution standard.
The Attorney General and his or her prosecuting agents are immune from civil liability unless the plaintiff can establish on a balance of probabilities that:
(1) the prosecutor initiated the prosecution against the plaintiff;
(2) the prosecution resulted in the plaintiff's acquittal;
(3) the prosecutor did not have "reasonable and probable cause upon which to found the charges" brought against the plaintiff; and
(4) the prosecution was motivated by an improper purpose which in law constitutes malicious conduct and intentional fault.
The third element of this cause of action goes to the heart of the prosecutor's function. The majority in Proulx defines reasonable and probable cause to prosecute as "sufficient evidence [for the prosecutor] to believe that guilt could properly be proved beyond a reasonable doubt". The dissent, however, defines reasonable and probable cause to prosecute 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 person, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed".
Both the majority and the dissent recognize that the reasonable and probable cause to prosecute test contains subjective and objective elements. There must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances. For the majority, the prosecutor must believe there is sufficient evidence that the guilt of the accused is legally capable of being proved beyond a reasonable doubt. For the dissent, the prosecutor must believe, on reasonable grounds, in the guilt of the accused. While the dissent's approach closely tracks the language used in the case that established the civil liability of the Attorney General and his or her agents for malicious prosecution, the majority's statement of the prosecution standard more accurately reflects the role of Crown counsel in Canada.
Criminal proceedings in Canada are commenced upon the swearing of an information before a justice. The Criminal Code requires that the person who initiates the proceedings must believe, on reasonable grounds, that the person against whom the proceedings are being initiated committed an offence. While the Code preserves the Attorney General's ancient right to commence criminal proceedings by indictment, the ordinary mode of procedure in Canada is for a person (usually a police officer) other than the prosecutor to initiate the proceedings. The Supreme Court of Canada recently confirmed in Campbell that when police officers initiate criminal proceedings, they do so not as agents of the Crown but in the exercise of their independent authority as constables.
Police officers and prosecutors perform separate functions. Police officers investigate allegations of criminal conduct and prosecutors prosecute the charges that result from police investigations. It is the function of the investigator to determine who committed a criminal offence. If the investigator believes that a person has committed an offence and if that belief is based on reasonable grounds, the investigator may swear an information before a justice. In most Canadian jurisdictions and in most cases, a prosecutor does not become involved in the process prior to the swearing of the information. The prosecutor's role is not to determine whether he or she believes the accused committed the offence alleged, but to determine whether there is admissible evidence available to sustain a prosecution. The prosecutor's belief in the guilt of the accused is immaterial to this determination. As the majority observes in Proulx, the prosecutor might be persuaded of the accused's guilt but this is beside the point. What the prosecutor has to determine is whether there is admissible evidence available to prove the accused's guilt. This requires an objective assessment of the evidence, reached at arm's length from the investigation that led to the charge. In Ontario, this assessment is mandated by the reasonable prospect of conviction test.
An advisory committee chaired by Canada's preeminent criminal law jurist, the Hon. G. Arthur Martin, recommended the reasonable prospect of conviction test for Ontario. Following a detailed review of the prosecution function in Canada and elsewhere, the committee concluded that it is inappropriate:
for the prosecution to turn on the prosecutor's personal feelings or opinion as to whether or not the accused is guilty. This is inconsistent with Crown counsel's role as Minister of Justice. A prosecution clearly cannot commence unless an informant, usually a police officer, has reasonable grounds to believe, and does believe, that the accused has committed the offence for which he is charged. However, after the information is laid, an important aspect of Crown counsel's prosecutorial responsibilities is to maintain an impartial independence from the police or other informant, and an objectivity with respect to the prosecution that the police may not have, due to their minds having been made up in the course of the investigation.
In the Nelles decision, the Supreme Court of Canada stripped Canadian public prosecutors of absolute immunity by means of a cause of action developed in the context of the criminal justice system of nineteenth century England. This system left it up to private individuals to activate the machinery of prosecution. Quoting from the decision in Hicks v. Faulkner, the Supreme Court focused an aspect of the malicious prosecution inquiry on the presence or absence of the prosecutor's "honest belief in the guilt of the accused based . . . on reasonable grounds". This is an appropriate focus with respect to the state of mind of a person swearing an information pursuant to s. 504 of the Criminal Code, but it does not properly focus an inquiry into the discharge of modern public prosecution responsibilities in Canada.
Dambrot J. in Wilson v. Toronto Police Service recognized the dissonance between the test set out in Nelles and the modern prosecution function in Canada. Concluding that it is not necessary for the prosecutor to have a personal belief in the probable guilt of the accused, His Honour stated that a prosecutor must have "a genuine belief based on reasonable grounds that the proceedings are justified" rather than an "honest belief in the guilt of the accused". Wilson v. Toronto Police Service is not cited in Proulx. The test applied by the majority in Proulx does, however, appear to focus the inquiry on the prosecutor's assessment of whether there is "sufficient evidence to ground a reasonable belief that a conviction could properly be obtained". It is an improvement over the archaic language used in Nelles and applied by the dissent in Proulx. Unfortunately, not only is this beneficial refinement of the Nelles test not clearly stated, it is virtually denied by the majority when they suggest that their disagreement with the dissent "turns on the facts of this particular case".
B.A., LL.B., LL.M, Director of Crown Operations, Central West Region, Ontario Ministry of the Attorney General. The opinions expressed herein do not necessarily reflect the policy of the Ontario Ministry of the Attorney General.
Nelles v. Ontario (S.C.C.)
R. v. Southwick (Ont. C.A.)
Section 504 of the Code governs the initiation of proceedings in relation to indictable offences and s. 795 applies the same procedure to summary conviction proceedings.
See s. 577.
R. v. Campbell (S.C.C.)
In a puzzling passage at para. 33 of the majority judgment in Proulx, the prosecutor's function is equated with that of a police officer.
In Quebec, an Act respecting Attorney General's prosecutors, R.S.Q., c. S-35 requires agents of the provincial Attorney General to "authorize" charges before they are laid. British Columbia and New Brunswick administratively require Crown counsel to "screen" charges before they are laid. Elsewhere in Canada, Crown counsel are available to provide pre-charge advice to the police only when they request it (see Code M., "Crown Counsel's Responsibilities When Advising the Police at the Pre-Charge Stage" (1998) 40 Crim. L.Q. 326 and Pearson, J., "The Prosecutor's Role as the Investigative Stage from an Ontario Perspective" (2000) Record of Proceedings, XXth Annual Federal Prosecution Service Conference).
Charge Screening Directive, January 15, 1994, Ontario Ministry of the Attorney Crown Policy Manual.
Ontario, Attorney General's Advisory Committee, Report of the Attorney General's Advisory Committee of Charge Screening, Disclosure and Resolution Discussions (Toronto: Queen's Printer, 1993).
Ibid., at p. 69.