Three children made allegations of sexual assault against their biological parents, their mother's boyfriend and the respondents, who were the children's foster parents and members of the foster parents' extended family. Charges were subsequently laid and M, a provincial Crown attorney, prosecuted the case against the parents and the mother's boyfriend. All three were convicted, and the convictions were upheld by the Court of Appeal. The Supreme Court of Canada overturned the convictions, but concluded that the evidence of the children was sufficient to order new trials against the parents. Meanwhile, taking under advisement the trial judge's comments urging that the children not be made to endure another criminal proceeding, M negotiated a plea bargain with one of the accused (who is not a respondent in this case). The charges against the respondents were stayed. Some years later, all three children recanted their allegations against the respondents. The respondents commenced a civil suit for malicious prosecution against a number of individuals involved in the proceedings against them, including M.
M was found liable. The trial judge held that there were no objectively reasonable grounds upon which M could have believed that the respondents were probably guilty of the offences alleged. He held that M 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 M's prosecution of the respondents was animated by an improper purpose. While the Court of Appeal was unanimous in rejecting virtually all of the trial judge's "indicators of malice", the majority nevertheless concluded that the trial judge's finding that M 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 and dismissed the appeal.
Held: The appeal should be allowed and the action dismissed.
To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution 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 that of carrying the law into effect. Only the last two elements are at issue in this appeal.
The third element of the tort requires a plaintiff to prove an absence of reasonable and probable cause for initiating the prosecution. 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, there must be actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances. However, principles established in suits between private parties cannot simply be transposed to cases involving Crown defendants without necessary modification. 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. 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 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. 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. This decision may not entirely accord with the individual prosecutor's personal views about a case, but Crown counsel must take care not to substitute his or her own views for that of the judge or the jury. Furthermore, where the action is taken against a Crown attorney, the inquiry into the prosecutor's subjective state of belief does not properly belong at the third stage of the test. In the context of a public prosecution, the third element necessarily turns on an objective assessment of the existence of sufficient cause. 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. 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 is a question of fact, requiring evidence that the prosecutor was impelled by an "improper purpose". The malice element of the test 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. 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. While the absence of a subjective belief in reasonable and probable cause is relevant to the malice inquiry, it does not equate with malice and does not dispense with the requirement of proof of an improper purpose. By requiring proof of an improper purpose, the malice element ensures that liability will not be imposed in cases where a prosecutor proceeds absent reasonable and probable grounds by reason of incompetence, inexperience, honest mistake, negligence or even gross negligence.
In this case, there is no evidence to support a finding of malice. The trial judge's "indicators of malice" find no support in law or on the record. Moreover, the approach adopted at trial in the review of M's conduct of the prosecution exemplifies the very kind of second‑guessing of prosecutorial discretion that should be avoided. The trial judge's basis for concluding that M did not have the requisite subjective belief amounts to a palpable and overriding error and, as such, is not entitled to deference. M testified that while he did not believe some aspects of the allegations, he believed the children. The trial judge did not reject this testimony but faulted M 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. That conclusion is not supported by the evidence. Several judges at both the trial and appellate levels in the criminal proceedings accepted and relied upon the same allegations by the children in convicting their biological parents. 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.
The Court of Appeal erred in upholding the trial judge's finding that M was liable for malicious prosecution. The court was unanimous in overturning virtually all of the facts relied upon by the trial judge as indicative of malice on the part of M. Nevertheless, the majority relied on the "totality of all the circumstances" requirement to forego the need for evidence beyond absence of reasonable and probable cause to prove that M was in fact actuated by an improper purpose. The majority erred by concluding that M's lack of subjective belief in the existence of grounds was sufficient to ground a finding of malice without identifying any improper purpose. Neither the plaintiffs nor the courts below have pointed to any improper purpose that impelled M to prosecute the respondents.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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