injusticebusters logo

Malice: What it is and how to fight it

malice n. desire to harm or cause difficulty to others, ill-will; Law harmful intent.

malicious a. given to or arising from malice.

The Pocket Oxford Dictionary, Clarendon Press, 1984

Supreme Court Justices McLachlin C.J. and Iacobucci, Major and Binnie JJ, for the majority in the Benoît Proulx case, October 18, 2001

. . . A suit for malicious prosecution 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. In the civil law of Quebec, this is captured by the notion of "intentional fault". The key to a malicious prosecution is malice, but the concept of malice in this context includes prosecutorial conduct that is fuelled by an "improper purpose".

Here, the improper purpose arose because of the mixing of a private interest (defence of the defamation suit) and a public interest (the prosecution). . . .

While Nelles established a generous boundary within which prosecutors acting in good faith have immunity despite bad decisions, the mixed motives of the prosecutor in this case carried him across that boundary and amounted to malice. . . .

A hypothetical question then could be put thus:
If a person does harm to another person as a result of thoughtlessness, or if that other person is harmed as an indirect effect of a direct action intended to accomplish an unrelated purpose, and then that first person learns that the second person has been hurt and is still being hurt and continues to pursue the initial purpose with full knowledge that the hurt is continuing, at what point does this action become malice?

Let's now plug in some real names:
If Matthew Miazga, a prosecutor employed by the province of Saskatchewan prosecutes Marie Klassen, believing he can get a conviction based on a police report, and he pursues this action to court and obtains an indictment and then learns that she could not possibility have been guilty of the crime of which he indicted her, and then he stops the action but claims it is for a different reason and in the course of promoting the claim he has stopped it for a different reason he learns that by his actions he is continuing to hurt her and he still does not stop -- when did his actions become malicious?

-- Sheila Steele