What Is Malicious Prosecution?

To Succeed With a Malicious Prosecution Case the Plaintiff Must Prove That Previous Accusations Within Previous Proceedings Were Brought Without Proper or Reasonable Cause or An Improper Purpose. Accordingly, More Is Required Than Just Proving That the Previous Proceedings Failed.

Understanding the Tort of Malicious Prosecution and What Legally Constitutes As the Element of Malice

Legal processes can sometimes become malicious tools improperly used as a form of illicitly motivated conduct such as criminal allegations brought unjustly against an innocent person.  For a successful malicious prosecution case, the Plaintiff, who would be a person previously accused with a crime or other wrongdoing and involving a formal prosecution, must be fully acquitted or exhonerated during the process of the prosecution.  Additionally, per the summary of the full elements below, a lack of reasonableness involving malice or wrongful purpose for the accusations must exist.

The Law
Elements Required

In a malicious prosecution case, the Plaintiff must prove the four elements as articulated in Nelles v. Ontario, [1989] 2 S.C.R. 170 wherein it was said:

There are four necessary elements which must be proved for a plaintiff to succeed in an action for malicious prosecution:

a) the proceedings must have been initiated by the defendant;

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.

(See J.  G.  Fleming, The Law of Torts (5th ed.  1977), at p.  598.)

The first two elements are straightforward and largely speak for themselves.  The latter two elements require explicit discussion.  Reasonable and probable cause has been defined 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 man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed"  (Hicks v. Faulkner (1878), 8 Q.B.D.  167, at p.  171, Hawkins J.)

This test contains both a subjective and objective element.  There must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances.  The existence of reasonable and probable cause is a matter for the judge to decide as opposed to the jury.

The presence of malice and lack of reasonable and probable cause, among other things, must be proven within a malicious prosecution case.  Proving a lack of reasonable and probable cause can be difficult and was stated so as follows:

[25]  Malicious prosecution is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fuelled by malice: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at para. 56. The plaintiff holds the burden to provide proof of actual malice: Miazga at paras. 79-81 and 89. That burden requires the plaintiff prove that the defendant perpetrated a fraud on the process of criminal justice, engaged in criminal conduct, or abused or exceeded the boundaries of his or her office: Nelles at p. 194; or perverted the law to achieve a purpose other than the legitimate discharge of their duties: Farley (S.C.) at para. 36.

[26]  Malice requires proof of an improper purpose. As the Supreme Court confirmed in Miazga at para. 81:

By requiring proof of an improper purpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutor proceeds, absent reasonable and probable grounds, by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence [citation and quotation omitted].

[27]  Tunnel vision alone is not enough to support a claim of malicious prosecution: Farley (S.C.) at para. 62.

[28]  The Supreme Court opined that a plaintiff has the notoriously difficult task of establishing a negative (the absence of reasonable and probable cause), and is held to a very high standard of proof to avoid a non-suit: Nelles at p. 194. If the defendant initiated or continued the prosecution based on an honest albeit mistaken belief that reasonable and probable cause indeed existed, the defendant therefore acted for the proper purpose of carrying the law into effect and the action must fail: Miazga at para. 79.

[29]  To have reasonable and probable grounds, an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest and the arrest must also be justifiable from an objective point of view: 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, [2016] O.J. No. 4615 at para. 49. The determination of whether the requisite grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest, not at a later date: Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. No. 5067 (S.C.) at para. 61. Although making a conscientious and informed decision about whether to lay charges requires, to some extent, weighing evidence during an investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. Nor is the officer “required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds”: Barclay at paras. 50-52; Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973, [2016] O.J. No. 6702 at paras. 8-10.

[30]  As the court held in Wong at paras. 84-85:

The plaintiff has the onus to demonstrate the absence of reasonable grounds. A plaintiff must demonstrate that the defendant officers had before them facts pointing so overwhelmingly to the plaintiff’s innocence that no reasonable person could have believed in the plaintiff’s guilt.

... While it may be possible to infer malice from the absence of reasonable and probable cause to commence or to continue a prosecution, it is only appropriate to do so where the “circumstances [are] such that prosecution can only be accounted for by implying some wrong or indirect motive to the prosecutor, although it may be impossible to say what it was” [citations omitted].

[31]  The objective existence or absence of reasonable and probable cause is a question of law for the judge to decide. This means “that an action for malicious prosecution can be struck before trial as a matter of substantive inadequacy”, or on a motion for summary judgment: Nelles at pp. 193 and 197; Miazga at para. 74.

Complaint By An Individual

Within the case of Kefeli v. Centennial College of Applied Arts and Technology, 2002 CanLII 45008, the Court of Appeal held that, as a general rule, the court will view the police officer that laid the charge as the person who initiated the prosecution; however, the Court of Appeal did state that in exceptional circumstances a private citizen as complainant may be found as having maliciously initiated a prosecution.  In such a matter, three elements must exist:

  • The complainant desired and intended that the plaintiff be prosecuted;
  • The facts were so peculiarly within the complainant's knowledge that it was virtually impossible for the professional prosecutor or police officer to exercise any independent discretion or judgment in determining whether or not to lay the charge; and
  • The complainant procured the institution of proceedings by the professional prosecutor or the police officer, either by furnishing information relevant to the determination of whether or not a charge should be laid that he knew to be false, or by withholding information that he knew to be true, or both.

An example of a citizen suing a party other than the police, specifically an employee suing an employer, can be found in McNeil v. Brewers Retail Inc.2008 ONCA 405, [2008] O.J. No. 1990, whereby Brewer’s Retail Inc. knowingly withheld security footage from the police while aware that the tapes would exonerate McNeil.  It was successfully argued by McNeil that by failing to forward that evidence to the police all three elements of the three part test as above were met.

Malice, defined

Inherent to the elements of a malicious prosecution case is the element of malice.  In certain circumstances the malice element may be plain and obvious; however, malice can be demonstrated by showing that the proceeding was commenced illicitly and as was explained in St-Jacques v. Doyle, 2008 CanLII 9381 where it was said:

[8]  Malice is established by showing that the actual motive was improper, or the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the defendant.  The burden is on the plaintiff to show malice.

Lloyd v. Toronto (City) Police Services Board, O.J.  No.  83 (S.C.J.) at paras.142 and 143.

[9]  With respect to allegations of malice, a suit for malicious prosecution must be based on more than recklessness or gross negligence.  The test for malicious prosecution requires that the plaintiff show that the actual motive was improper, or demonstrate that the prosecution can only be explained by imputing a wrong motive.  Neither bald allegations of malice, nor inferences in the face of other explanations, nor assumption and innuendo will satisfy the elements of the test.

Additionally, malice may be established where a prosecutor continues a prosecution without reasonable or probable grounds to do so, such as when exculpatory or exhonerating evidence comes to the attention of the prosecutor and the evidence is ignored.  Specifically, in the case of Folland v. Ontario, 2003 CanLII 52139, the Court of Appeal said:

[14]  In Oniel v. Toronto (Metropolitan) Police Force, 2001 CanLII 24091 (ON CA), [2001] O.J. No. 90 (Quicklaw), 195 D.L.R. (4th) 59 (C.A.), leave to appeal to the Supreme Court dismissed at [2001] S.C.C.A. No. 121, this court held that continuing a prosecution in the absence of reasonable and probable grounds is capable of giving rise to an inference of malice. Borins J.A. wrote (at paras. 49-51):

Although the prosecutor may have reasonable and probable grounds to commence a prosecution, if the prosecutor obtains information which suggests that the person probably did not commit the offence, . . . the prosecutor lacks reasonable and probable grounds to continue the prosecution, and malice may be inferred. . . .

Continuing the prosecution in the absence of an honest belief in the appellant's guilt would be incompatible with securing the ends of justice, and malice could be inferred if the respondents continued the prosecution with reckless indifference to the truth . . . .

Claiming Punitive Damages
Against Lawyer

In the matter of Curley v. Taafe, 2018 ONSC 3150 punitive damages against a lawyer were awarded whereas the lawyer was found as having brought malicious criminal proceedings as well as malicious complaints about a colleague to the Law Society of Ontario (the Law Society of Upper Canada as it was then):

[83]  There remains the Plaintiff’s claim for punitive damages.  As noted by Carole J. Brown J. in Campbell v. Lauwers, 2013 ONSC 2306 at para. 37:

With respect to punitive damages, the Court should consider how the combination of compensatory damages, punitive damages and any other kind of punishment related to the same misconduct contributes to achieving the objectives of retribution, deterrence, and denunciation.  Where a defendant has already been punished, either criminally or through professional disciplinary process, punitive damages are generally not awarded, because this would amount to double punishment.

[84]  In this case there is no evidence that the Defendant has been the subject of any disciplinary process, or any form of punishment.  The Defendant is a lawyer, and she should have come to this court and told the truth.  In my view, she did not.  The Defendant is an officer of this court, quite independent of her role as a litigant within these proceedings.  This is a case where an award of punitive damages is appropriate to reflect the Defendant’s misconduct so as to achieve objectives of retribution, deterrence and denunciation.  The award, in my view, should not be a crippling award.  An award suggested by Plaintiff’s counsel in the range of $350,000 to compensate the Plaintiff for all her damages, which would include punitive damages, would result in a crushing award that would not be a complete reflection of the Defendant’s misconduct in this case.  An award of $25,000 for punitive damages is, in my view, sufficient to reflect the principles upon which punitive damages have been awarded in the past.

Summary Comment

For a person redeemed of uproven allegations, the availability of civil law remedies, including compensation for the harm arising in the course of defending the unproven allegations, the tort of malicious prosecution comes with fresh challenges.  For successful malicious prosecution litigation, the Plaintiff within the civil litigation proceedings, being the person who was the accused Defendant in the prior proceedings, must be able to demonstrate that the prior proceedings were initiated by the defendant, were terminated in favour of the plaintiff, were initiated without reasonable or probable cause, and were motivated by malice or for a primary purpose other than a genuine use of the law.


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