Malicious prosecution decision to be released today

At 11:00 a.m. (Ottawa time) today the Supreme Court will release a decision on malicious prosecution -- it may clarify a difficult area of law -- I hope so!!!

Matthew Miazga v. Estate of Dennis Kvello (by his personal representative, Diane Kvello), et al.

Torts ‑ Malicious prosecution ‑ Negligence ‑ Charges of sexual abuse of minor wards brought against persons running foster homes ‑ Child therapist key in having charges laid ‑ Supreme Court either setting aside convictions or ordering new trial with which Crown did not proceed ‑ Action for malicious prosecution against child therapist and Crown prosecutor ‑ Both found liable ‑ Appeal of child therapist allowed and that of Crown prosecutor dismissed ‑ Was there a lack of reasonable and probable grounds to prosecute? ‑ Was evidence of malice present?
This case deals with liability for malicious prosecution. It arises from the prosecution of several foster parents (the Kvello‑Klassens), who were related, on charges of sexual abuse of their foster children. The children’s allegations were not only with respect to the Kvello‑Klassens but also made with respect to the involvement of other children and satanic rituals. The alleged sexual abuse took place in the late 1980s and early 1990s and the criminal proceedings took place from 1991 to 1993. The prohibitions in the Criminal Code, R.S.C. 1985, c. C‑46, and the Canada Evidence Act, R.S.C. 1985, c. C‑5, against convictions upon the unsworn evidence of children, unless their evidence was corroborated in a material particular, had just been repealed, effective January 1, 1988.

Ms. Bunko‑Ruys, a child therapist, was very involved in the investigations, in the role as the children’s supporter. This role continued after the charges were laid. Mr. Miazga was the Crown attorney who prosecuted the Kvello‑Klassens. He did not know another Crown attorney had advised the police that a conviction would be unlikely given the nature of the children’s evidence and he advised the police to lay charges if the police thought the Kvello‑Klassens were guilty. Mr. Miazga was accused of adopting a very aggressive style during the hearing.

The Kvello‑Klassens began their action for malicious prosecution some years after their criminal prosecution. Bunko‑Ruys and Miazga were found to have maliciously prosecuted the plaintiffs and judgment for the plaintiffs ordered and to be subsequently determined. On appeal, the appeal of Bunko‑Ruys was unanimously allowed and judgment against her set aside; the appeal of Miazga was dismissed with costs, Vancise J.A. dissenting. Leave to appeal was granted to Miazga.