IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN) MATTHEW MIAZGA,

Transcription

1 BETWEEN: AND: SCC Court File No: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN) MATTHEW MIAZGA, APPELLANT (APPELLANT) THE ESTATE OF DENNIS KVELLO (BY HIS PERSONAL REPRESENTATIVE, DIANE KVELLO), DIANE KVELLO, [SK1], [SK2], KARI KLASSEN, RICHARD KLASSEN, PAMELA SHARPE, THE ESTATE OF MARIE KLASSEN (BY HER PERSONAL REPRESENTATIVE PETER DALE KLASSEN), JOHN KLASSEN, MYRNA KLASSEN, PETER DALE KLASSEN, ANITA JANINE KLASSEN. RESPONDENT (RESPONDENTS) FACTUM OF THE APPELLANT MATTHEW MIAZGA Pursuant to Rule 42 of the Rules of the Supreme Court of Canada MacPherson Leslie & Tyerman LLP Scarth Street Regina, Saskatchewan S4P 4E9 Tel: Fax: Michael D. Tochor, Q.C. Counsel for the Appellant Gowling Lafleur Henderson LLP Elgin Street Ottawa, Ontario K1P 1C3 Tel: Fax: Brian A. Crane, Q.C. Agent for the Appellant

2 Edward Holgate Borden Holgate Law Office Spadina Cres. East Saskatoon, Saskatchewan S7K 3G8 Phone: (306) Facsimile: (306) Counsel for the Respondents The Estate of Dennis Kvello (by his personal Representative, Diane Kvello), Diane Kvello, Sheldon Kvello, Sherry Kvello, Kari Klassen, Pamela Sharpe, The Estate of Marie Klassen (by her personal representative, Peter Dale Klassen), John Klassen, Myrna Klassen, Peter Dale Klassen, Anita Janine Klassen Mr. Richard Klassen 102 Smallwood Crescent Saskatoon, Saskatchewan S7L 4Z6 Phone: (306) Facsimile: (306) Self-Represented Respondent Ms. Kari Klassen 102 Smallwood Crescent Saskatoon, Saskatchewan S7L 4Z6 Phone: (306) Facsimile: (306) Self-Represented Respondent

3 i TABLE OF CONTENTS PART I OVERVIEW Introduction Facts... 1 PART II QUESTIONS IN ISSUE... 5 PART III ARGUMENT Introduction Absence of Reasonable and Probable Cause... 7 (a) Were there Reasonable and Probable Grounds to Prosecute?... 7 (b) Must a Crown Prosecutor have a Belief in Probable Guilt or an Arguable Case? (c) Must a Crown Prosecutor have both an Objective and Subjective Belief? Was the Element of Malice Present? (a) Can Malice be Established without Proof of an Identified Improper Purpose? (b) Can Malice be Presumed from an Absence of Reasonable and Probable Cause? 23 (c) Can Malice be Inferred from an Absence of Reasonable and Probable Cause? (d) Can Malice be Established when the Trial Judge s Indicia of Malice were in Error? PART IV COSTS PART V ORDERS SOUGHT PART VI TABLE OF AUTHORITIES... 35

4 - 1 - PART I OVERVIEW 1. INTRODUCTION 1. This appeal concerns the correct definition of the required elements of the test for malicious prosecution. 2. It focuses on the third and fourth elements of the four part test set out in Nelles v. Ontario, [1989] 2 S.C.R. 170 ( Nelles ) and Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9 ( Proulx ). 3. First, this appeal from Kvello v. Miazga, 2007 SKCA 57 (the Appeal Judgment ), brings into issue the third Nelles requirement of what must be proven to establish a lack of reasonable and probable cause. It raises the question of whether a prosecutor must believe the accused is probably guilty or whether he has an arguable case. It also raises the question of whether a prosecutor must have both an objective and subjective belief. 4. Second, this appeal raises important questions as to the fourth Nelles requirement of malice. The Appeal Judgement effectively collapsed the four part test into a three part test, and this appeal brings into question whether a prosecutor can be liable for malicious prosecution without a finding of malice. 2. FACTS 5. The pertinent facts are summarized at paras of the Appeal Judgment. 6. In 1991, the Appellant Matthew K. Miazga ( Miazga ) was a Crown prosecutor with twelve years experience. 7. Sometime in or about May, 1991, Miazga was contacted by a police officer, Cpl. Dueck ( Dueck ), about an ongoing sexual assault investigation in which three children had disclosed that they were sexually abused by the Plaintiffs and others. 8. Miazga reviewed a lengthy occurrence report prepared by Dueck which set out allegations against the Plaintiffs. After this review, Miazga advised Dueck that if he believed

5 - 2 - what the complainant children had said about the assaults, that could be viewed as reasonable and probable grounds for laying an Information. 9. Dueck swore an Information against the Plaintiffs on July 6, 1991 and the Plaintiffs were arrested in Red Deer, Alberta on July 11, On the first court appearance on July 18, 1991, Miazga appeared for the Crown and consented to the release of each of the Plaintiffs. 10. In preparation for preliminary hearings against the Plaintiffs and others, Miazga interviewed the complainants in the fall of He additionally reviewed videotaped statements of the children in September 1991; however, he was mindful that the evidence of children could not be considered in the same manner as that of adults. Since the children would be required to testify in court, he placed more weight on the personal interviews he conducted than on the tapes. 11. The complainants expressed their evidence to Miazga in a way that supported all of the charges that were laid. Miazga recognized that there could be credibility problems with the complainants based on their having made additional allegations of ritualistic abuse which were not sufficiently plausible to justify prosecution, and he noted the inherent difficulty in trying to assess the credibility of young complainants. Because the complainants credibility was bound to be central to any prosecution, Miazga carried out an ongoing evaluation of the complainants evidence, interviewing the complainants on a number of occasions and collecting additional expert guidance. 12. In addition to interviewing the complainants personally, Miazga consulted with medical experts to explore whether the physical examinations of the children were consistent with the abuse they disclosed and whether the behaviour of the children was consistent with those disclosures. He also sought the advice of psychological and psychiatric experts to be informed of the best information on this difficult topic that was available at that time. 13. Miazga was the prosecutor for a preliminary inquiry which commenced on November 21, 1991 where the complainants testified against three other accused persons. At the conclusion of this preliminary inquiry, Miazga noted on the record that he was grappling with the issue of whether to proceed with a further preliminary inquiry regarding the Plaintiffs. In light of certain

6 - 3 - perceived frailties with the complainants evidence, he openly and honestly wrestled with the issue of their credibility. In the course of these candid remarks, the presiding judge encouraged him to continue. 14. Miazga, still considering the complainants credibility to be the most difficult issue, consulted with his superior Richard Quinney at the Prosecutions Head Office, and was told to continue if he believed the essential part of the children s stories. 15. Miazga was co-counsel for a preliminary inquiry regarding the Plaintiffs which commenced on December 2, This preliminary inquiry resulted in committals for trial in regard to all of the Plaintiffs. 16. Miazga was also the prosecutor in the trial of the three other accuseds alleged to have sexually abused the same children. The trial judge, after hearing the evidence of the same child witnesses who made the allegations of abuse against the Plaintiffs, accepted part of their testimony and convicted the three accuseds of several counts of sexual assault on December 18, In January of 1993, taking into account the comments of the trial judge at the conclusion of this earlier trial involving the same complainants, combined with his own assessment that the children s credibility was becoming questionable and that they were becoming more and more traumatized throughout the process, Miazga twice met with his head office to discuss his recommendation for a plea bargain. After meeting with his superiors, he negotiated a plea bargain in which one person (not a Plaintiff in the present action) pled guilty to four charges of sexual assault. The charges relating to the Plaintiffs were stayed in February The convictions in the other trial were upheld by a majority of the Saskatchewan Court of Appeal on May 10, 1995 [(1995), 98 C.C.C. (3d) 353]. While these convictions were overturned by this Court at R. v. R. (D.), [1996] 2 S.C.R. 291), it is critical to note that the Court concluded that the evidence of the same child witnesses was sufficient to order new trials with respect to two of the defendants. Two members of the majority, Cory and Iacobucci, JJ., held, at para. 114, that the evidence of the same children was sufficient to order a new trial for all three defendants.

7 - 4 - (This judicial acceptance of the children s evidence factored largely in the minority decision of the Court of Appeal at paras ) 19. The Plaintiffs brought a civil suit against Miazga, his associate, Sonja Hansen, the Estate of Richard Quinney, Dueck and Carol Bunko-Ruys, a therapist who treated the children and testified in the criminal proceedings against the Plaintiffs. 20. At trial, the trial judge first dealt with a non-suit motion, which resulted in the dismissal of all claims against Quinney as well as a claim of false imprisonment against all other defendants: K. v. Miazga, 2003 SKQB 451 (the Non-Suit Judgment ). In this decision, the trial judge held that a prima facie claim in malicious prosecution could be been made out against Dueck, Bunko-Ruys and Miazga: K. v. Miazga, 2003 SKQB 559 (the Trial Judgment ). 21. In the Appeal Judgment, the Saskatchewan Court of Appeal allowed the appeal of Bunko-Ruys, but upheld the Plaintiffs claim against Miazga (Vancise J.A. dissenting). 22. The majority held that the trial judge committed palpable and overriding errors in the findings of fact used to support indicia of malice against Miazga, but nonetheless upheld the trial judge s conclusion of malice. The majority also held, importantly, that any consideration of the element of reasonable and probable grounds was subsumed in its analysis of the element of malice. 23. In a strongly worded dissent, Vancise J.A. held that the trial judge erred in his findings of indicia of malice since those findings were in error, and in finding a lack of reasonable and probable grounds when previous rulings of different courts held that the children s evidence was sufficient to support a conviction.

8 - 5 - PART II QUESTIONS IN ISSUE 24. The questions to be considered by the Court on this appeal are as follows: (a) Was there a lack of reasonable and probable cause? In particular: (i) (ii) (iii) Was there a lack of reasonable and probable grounds to prosecute? Must a Crown prosecutor have a belief in the probable guilt of the accused or a belief in an arguable case? Must a Crown prosecutor have both an objective and subjective belief? (b) Was evidence of malice present? In particular: (i) (ii) (iii) (iv) Can malice be established without proof of an identified improper purpose? Can malice be presumed from an absence of reasonable and probable cause? Can malice be inferred from an absence of reasonable and probable cause? Can malice be established when the trial judge s findings of indicia of malice werein error?

9 - 6 - PART III - ARGUMENT 1. INTRODUCTION 25. It is well known that the test for a claim in malicious prosecution is comprised of four essential elements, as set out in Nelles at p. 193: 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. 26. In response to concerns that recognition of this tort would substantially affect the exercise of prosecutorial discretion, the Court imposed a high standard before liability could be established. A chilling effect on prosecutors would be avoided, according to Nelles, by requiring proof of an improper purpose. The Court held, at pp : It is also said in favour of absolute immunity that anything less would act as a "chilling effect" on the Crown Attorney's exercise of discretion. We are not dealing with merely second-guessing a Crown Attorney's judgment in the prosecution of a case but rather with the deliberate and malicious use of the office for ends that are improper and inconsistent with the traditional prosecutorial function. Therefore it seems to me that the "chilling effect" argument is largely speculative and assumes that many suits for malicious prosecution will arise from disgruntled persons who have been prosecuted but not convicted of an offence. I am of the view that this "flood-gates" argument ignores the fact that one element of the tort of malicious prosecution requires a demonstration of improper motive or purpose; errors in the exercise of discretion and judgment are not actionable. (Emphasis added) 27. The Court, in a further effort to assuage concerns of increased litigation against prosecutors, also highlighted certain procedural protections that existed for the benefit of prosecutors. These procedural protections would allow a court to filter out unmeritorious claims. It was held, at p. 197:

10 - 7 - The fact that the absence of reasonable cause is a matter of law to be decided by a judge means that an action for malicious prosecution can be struck before trial as a matter of substantive inadequacy. In addition most jurisdictions, including Ontario, have provisions that allow a defendant to move for summary judgment before a full-fledged trial takes place. (Citations omitted) 28. In Proulx, the Court stressed that the relative immunity applicable to Crown prosecutors under Nelles should be strictly maintained, and that successful actions for malicious prosecutions could only arise in exceptional circumstances. It was held at para. 4 and paras. 8 9: The allegations in this case address one of those exceptional circumstances where it has been established on a balance of probabilities that the prosecutorial office has been found to have been used deliberately for purposes that we believe were improper and inconsistent with the traditional prosecutorial function (Nelles, supra, at pp ). Civil liability for malicious prosecution is therefore an appropriate remedy. A failed prosecution does not without more much more give rise to a viable claim for prosecutorial wrongdoing. As we have noted above, Nelles, set out four requirements that must be established on a balance of probabilities by the claimant in an action in damages based on prosecutorial misconduct in order to avoid the Crown s relative immunity against such suits. 29. As set out below, however, the decision of the Saskatchewan Court of Appeal eliminates some of the protections provided by Nelles and Proulx. The decision also diminishes the Crown s relative immunity from liability in all but exceptional circumstances. 2. ABSENCE OF REASONABLE AND PROBABLE CAUSE (a) Were there Reasonable and Probable Grounds to Prosecute? 30. A threshold question, pointedly raised by the dissent of Vancise J.A. in the Appeal Judgment, is whether there were reasonable and probable grounds to prosecute. This question takes on critical importance because if the Court of Appeal erred in finding an absence of reasonable and probable grounds, the Plaintiffs action must necessarily fail.

11 Although the Court of Appeal suggested that the trial judge s findings in this regard were pure findings of fact (Appeal Judgment, paras ) to which a great level of deference must be given, Nelles points out that consideration of whether reasonable and probable grounds exist is a question of law, at p. 197: The fact that the absence of reasonable cause is a matter of law to be decided by a judge means that an action for malicious prosecution can be struck before trial as a matter of substantive inadequacy. 32. Thus, this issue must be considered against a standard of correctness. 33. A review of the record makes it clear that Miazga had reasonable and probable grounds to proceed against the Plaintiffs. 34. The trial judge s conclusion that there were no reasonable and probable grounds was based on an erroneous premise. He held that no prosecutor could possibly accept the bizarre allegations of the child complainants and, therefore, reasonable and probable grounds could not exist. Because Miazga proceeded with this prosecution, he could not, ipso facto, have had reasonable grounds. The majority of the Court of Appeal accepted this, holding at para. 135 of the Appeal Judgment: The finding sets out the trial judge s firm opinion, which permeates the entire judgment, that it should have been apparent to anyone that the children s evidence, because of the bizarre and incredible nature of some of their allegations and their propensity to lie, was not sufficiently credible without some independent corroboration, to support the many charges against the twelve respondents, particularly when the mere laying of charges of this nature are known to have devastating consequences to those charged. (Emphasis added) 35. Later, the majority held, at paras : In summary, we are of the view that the trial judge took all relevant evidence into account, and whether we agree with his decision or not, it was open on the evidence available to him to find, as he did, that Miazga did not have an honest belief in the guilt of the respondents nor that he could prove each of the charges against each of them beyond a reasonable doubt.

12 - 9 - That being so, there were no reasonable and probable grounds to either recommend the laying of charges or to proceed with the prosecution of them. 36. The premise that no prosecutor could possibly accept the bizarre allegations of the child complainants was sternly refuted in the dissent of Vancise J.A. 37. Vancise J.A. viewed the trial judges reliance on this premise as a palpable and overriding error. He pointed out, at para. 252 of the Appeal Judgment, that several judges, both at the trial and appellate levels, had accepted and relied upon the evidence of these same child witnesses at the same time. 38. Vancise J.A. pointed out, at para. 255, that the evidence of the same children resulted in committals for trial in two different preliminary hearings. One preliminary related to R., R. and W., while the second hearing regarded the Plaintiffs. The same three children then testified before a very experienced trial judge, indeed a former Chief Justice of the Court of Queen s Bench where R., R. and W. were convicted. Miazga, it should be noted, was counsel for the Crown in both matters. 39. The convictions in the Court of Queen s Bench based upon the evidence of these children - was later upheld by the Court of Appeal in R. v. R, R, and W (1995), 98 C.C.C. (3d) 353. The Supreme Court later allowed an appeal but, significantly, did not order acquittals. Instead the Court ordered a new trial at [1996] 2 S.C.R Therefore, at the very least, several judges felt that the evidence of these same children was credible enough to sustain a conviction, while the Supreme Court considered it to be credible enough to warrant the holding of a trial. 40. Vancise J.A. concluded, at para. 257: In the circumstances of this case, where Miazga has successfully prosecuted the [R.] parents, did the prosecutor have before him facts that pointed so overwhelmingly to the respondents innocence that no reasonable person could have believed in the respondents guilt? I don t think so. 41. It is therefore impossible to reconcile the Appeal Judgment s criticism of Miazga for proceeding with this prosecution when: (a) a different trial judge earlier believed the evidence of

13 these children; (b) the Court of Appeal upheld those convictions; and (c) the Supreme Court ordered a new trial. 42. The acceptance of the children s evidence by various other courts renders the Court of Appeal s conclusion untenable. On this basis, it was a palpable error for the Court of Appeal to hold that there was an absence of reasonable and probable grounds. This, then, becomes a complete answer to the appeal. Given that the third element of the Nelles test did not exist, the tort was not made out and the Appeal Judgment ought to be reversed. (b) Must a Crown Prosecutor have a Belief in Probable Guilt or an Arguable Case? 43. A further question regards what belief a prosecutor must have to proceed with a prosecution. 44. While Nelles on its face set out a standard based on a belief that the accused is probably guilty, this appears to have been modified in Proulx, where Iacobucci J. and Binnie J. held as follows at para. 31 (citations omitted): To say that a prosecutor must be convinced beyond a reasonable doubt of an accused person's guilt before bringing charges is obviously incorrect. That is the ultimate question for the trier of fact, and not the prosecutor, to decide. However, in our opinion, the Crown must have sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt before reasonable and probable cause exists, and criminal proceedings can be initiated. 45. The majority judgment in Proulx also held at para. 44 that the prosecutor s subjective belief in the guilt of the accused was irrelevant if he lacked adequate evidence to prove that guilt: The prosecutor might have been persuaded of the appellant s guilt, but he must have known that he lacked the credible evidence to prove it. 46. The element of reasonable and probable cause should be measured against whether a prosecutor has an arguable case, not whether he believes the accused is probably guilty. 47. The majority decision in Proulx appears to have been sufficiently open-ended to allow for differing interpretations. One author described the state of the law following Nelles and Proulx in "The Widening Net of Liability for Police and Public Officials in the Investigation of

14 Crimes", in Annual Review of Civil Litigation 2001 (Toronto: Carswell, 2002) ( Widening Net ) at p. 9: While the majority of the Supreme Court of Canada in Proulx did not expressly alter the test in Nelles, by indicating that the Crown must have sufficient evidence to believe that guilt could properly be proved, the Court may be leaning towards the requirement of a reasonable prospect of conviction. 48. A second author, John Pearson, went further in Proulx and Reasonable and Probable Cause to Prosecute (2002), 46 C.R. (5th) 156, 46 CR-ART 56, p. 1, concluding that the majority enunciated a standard based upon the charge being capable of proof: 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. 49. A similar conclusion was reached in Miguna v. Toronto Police Services Board, 2007 CanLII 3674 (ON S.C.), where Spence J. held as follows at para. 33: A prosecutor is not required to have a subjective belief in the guilt of the accused. All that is required to establish the bona fides of the prosecutor is that he believes there is a case which warrants being presented to a court for determination. This was recognized in the comprehensive review of prosecutorial conduct in the Martin Report pp In support of this position, Spence J. at para. 32 cited the following passage from German v. Major, [1985] 20 D.L.R. (4th) 703 at 710 (Alta. C.A.): It would distort the adversary process to suggest that counsel must believe in the truth of the client's cause. It is sufficient surely that prosecuting counsel believe only that, on his perception of the facts and law, there is an arguable case. See also Kleysen v. Canada (Attorney General), 2001 MBQB 205 at paras ; R. v. Scott, 2002 CanLII (ON S.C.) at paras ; and Bernstein et al v. Stoytcheva-Todorova et al, 2007 BCSC 14 at para. 52, which adapted the test where the impugned prosecution was a civil action.

15 However, there are other cases decided since Proulx that continued to apply a probably guilty standard. In addition to the judgments below, see e.g. Mammoliti v. Niagara Regional Police Service, 2007 ONCA 79 ( Mammoliti ) at para. 63 and Dix v. Canada (Attorney General), 2002 CarswellAlta 826 (Q.B.) ( Dix ) at para There is, therefore some divergence in the authorities as to the appropriate standard of belief required for this element. comes down squarely in favour of the arguable case standard. However a recent report of the Uniform Law Commission 53. In Report of the Joint Criminal/Civil Section Working Group on Malicious Prosecution, delivered to the Uniform Law Commission: Charlottetown, 2006 (the Uniform Law Commission Report ), Judy Mungovan describes the gap between these standards as follows at para. 45 (italics in original, underlining added): (T)here is a disconnect between the standard a court uses to review the decision to prosecute (reasonable and probable cause), and the standard a Crown is instructed to follow when deciding to prosecute (reasonable prospect of conviction. However, a Crown is duty bound to proceed with a prosecution in Ontario when there is a reasonable prospect of conviction, and so long as that prosecution is in the public interest. This latter threshold was crafted and recommended by the Martin Report after a careful review of the role of the Crown in the proper administration of justice as well as existing threshold tests in other jurisdictions. There is no subjective element to this screening requirement. Indeed, the Martin Report cautions prosecutors about the inherent danger of making a threshold decision about the future of a prosecution on the basis of one s own personal opinion: If only those case were prosecuted in which Crown counsel firmly believed in the guilt of the accused, the settled notion that the purpose of a criminal prosecution is not to obtain a conviction may well be compromised in practice by prosecutors who, having formed the opinion that the accused is guilty, would therefore see it as their duty to obtain a conviction. Crown counsel need not and ought not to be substituting his or her own views for those of the trial judge or jury, who are the community s decision makers. It cannot be forgotten that much of the public s confidence in the administration of justice is

16 attributable to the trial court process that ensures that justice is not only done, but is seen to be done Granting Crown counsel the power to initiate or discontinue prosecutions based on a subjective assessment of whether or not the accused is guilty would, in some circumstances, be tantamount to replacing these open, impartial, and community-based processes with the unexplained, unreviewable decisions of prosecutorial officials, who have no direct accountability to the public. 54. The Appeal Judgment is a stark example of the gap or the disconnect between the two standards. 55. The majority held, at para. 132, that Miazga s lack of belief in the guilt of the respondents was the one aspect of the trial (which) clearly and unequivocally tips the balance against Miazga. Yet, as noted in the Martin Report (as cited above in the Uniform Law Commission Report), Crown prosecutors are cautioned to ignore their subjective belief when considering a threshold decision about the future of a prosecution. On the Court of Appeal s reasoning, however, a prosecutor who followed the Martin Report s admonition to ignore his subjective belief could, ironically, unequivocally (tip) the balance against himself and invite a finding of liability. 56. Acceptance of the arguable case standard of belief will resolve the apparent disconnect illustrated in the Uniform Law Commission Report. 57. When the arguable case standard is considered, the evidence of the complainants, if accepted, was ample to support the prosecutions. The complainants made disclosures alleging sexual abuse by the Plaintiffs, first through discussion with a foster parent and then in videotaped interviews (Trial Judgment paras. 69, 113). These disclosures formed the basis of the subsequent investigation and prosecution (Trial Judgment paras ). 58. As noted by the trial judge, (see e.g. para. 138 of the Trial Judgment), the viability of the prosecution depended on the credibility of the complainants: if their testimony was accepted, then all elements necessary to support a conviction were present.

17 In this respect, the earlier committals for trial, as well as the convictions of R., R., and W. must also be considered. These events offer compelling and determinative evidence that, on an objective standard, arguable cases existed against the Plaintiffs. 60. The next question is whether there were any other factors, which cast doubt as to the veracity of the complainants testimony and could negate reasonable and probable cause. Exculpatory evidence may be taken into account in determining whether an absence of reasonable and probable cause has been made out on an objective standard. However, the Trial Judgment discloses no exculpatory evidence that could have affected the assessment of the arguable case. 61. The trial judge made few findings as to what Miazga knew when advising the police or in prosecuting the charges. Instead, the trial judge based his conclusions on what Miazga would have known or should have known even while noting that the police investigator concealed some of his investigation s findings from Miazga (Trial Judgment, paras ). 62. The trial judge did not make a finding that exculpatory evidence existed before the preliminary inquiries took place and the complainants evidence was challenged (Trial Judgment, paras. 257, 273). He noted that Miazga was obviously shaken by the discovery that one child lied in the first preliminary inquiry, and that Miazga candidly brought this concern to the attention of the preliminary inquiry judge, as well as seeking direction from his superiors (Trial Judgment, paras ). 63. Thus, there was no evidence which could refute the assessment of an arguable case against the Plaintiffs. On this basis, it is then clear that Miazga had reasonable and probable grounds to proceed, and that the Court of Appeal erred in concluding that the third Nelles element was established. (c) Must a Crown Prosecutor have both an Objective and Subjective belief? 64. In Nelles, the Court held that the test for reasonable and probable cause contained both an objective and subjective element, at p. 193:

18 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. 65. Nelles also sought to make it clear that the onus properly lies on a plaintiff to prove the absence of reasonable and probable cause based on subjective and objective grounds, not on a defendant to prove the presence of a belief that is both subjectively and objectively reasonable. 66. However, the requirement of a concurrent subjective belief has been drawn into question. In principle, there appears to be little reason why a prosecutor s subjective view of a case should be relevant when reasonable and probable cause is present on an objective test. 67. One means of reconciling this question with the presence of an objective element to the test is found in Lawrie v. Law Society of Upper Canada, 1992 CarswellOnt 4062 (Gen. Div.), aff'd 1996 CarswellOnt 1164 (C.A.), where Roberts J. held as follows at para. 29: In my opinion the law is that the subjective element need not be considered where there is clearly, on the objective test, reasonable and probable cause to commence the prosecution. Where there is no such reasonable and probable cause then the plaintiff must negotiate the further subjective hurdle and prove that the prosecutor did not have "an honest belief in the guilt of the accused". This is an additional hurdle to the plaintiff in a malicious prosecution action not to the defendant. 68. See also U.S. case law including Sheldon Appel Company v. Albert & Oliker, 47 Cal. 3d 863 (1989) at p. 878, applied inter alia in Roberts v. Federal Express Corporation, 842 S.W.2d 246 (Tenn. 1992) at p. 248 and Jordan v. Bailey, 113 Nev (1997) at pp The overriding consideration governing the exercise of Crown discretion must be the public interest, not a prosecutor s subjective opinion as to whether the case is likely to be made out. A subjective element to the test should only to be relevant to explain why a prosecutor might

19 have incorrectly perceived reasonable and probable cause to exist not to make prosecutors liable where their subjective perception as to the strength of a case is less positive than an objective assessment. 70. Thus, on this analysis, there is no need for a subjective belief once an objective case exists. 71. However, even if a subjective test is necessary, the record does not support the conclusion that Miazga lacked a subjective belief in an arguable case against the Plaintiffs. Indeed, the Court of Appeal s holding to the contrary appears to be based on a misinterpretation of the Trial Judgment. 72. The majority held at para. 139 of the Appeal Judgment: In summary, we are of the view that the trial judge took all relevant evidence into account, and whether we agree with his decision or not, it was open on the evidence available to him to find, as he did, that Miazga did not have an honest belief in the guilt of the respondents nor that he could prove each of the charges against each of them beyond a reasonable doubt. 73. The trial judge expressed uncertainty as to what Miazga meant in testifying that he believed the children (Trial Judgment, paras ). However, this uncertainty cannot be taken as a finding that Miazga lacked a subjective belief that convictions could properly be made out based on the children s testimony. In fact, it implies the opposite. 74. Further, the trial judge s most definitive finding on Miazga s subjective belief is found at para. 363: I am satisfied by all the evidence on this issue that the defendants did not have an honest belief that the plaintiffs had committed the assaults alleged by the [R.] children nor did they have an honest belief that the plaintiffs were guilty of the offences charged against them. In my view, the subjective belief held by each of the defendants was that the children had been sexually abused and that one or more of the 12 plaintiffs who were charged must have done it. (Emphasis added) 75. It is clear that the trial judge found that Miazga held a subjective belief that convictions could be made out against one or more of the plaintiffs. This finding does not support the

20 argument that the Plaintiffs proved an absence of subjective belief. found by the trial judge. Instead, the opposite was 76. In summary, the appropriate question as to the issue of reasonable and probable cause is whether the complainants evidence could properly give rise to a conviction against the Plaintiffs. In the context of prosecutions based on direct evidence from multiple complainants and in the absence of any clear disproof of guilt the Plaintiffs cannot be said to have proven an absence of reasonable and probable cause. 3. WAS THE ELEMENT OF MALICE PRESENT? (a) Can Malice be Established without Proof of an Identified Improper Purpose? 77. The trial judge, it must be noted, never made any finding of actual malice on the part of Miazga and, instead relied upon either inferences or a presumption of malice. The trial judge also did not make a finding as to any improper purpose or motive on the part of Miazga. 78. The test for malice was defined in Nelles, as follows at pp (Emphasis in original): The required element of malice is for all intents, the equivalent of "improper purpose". It has according to Fleming, a "wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage" (Fleming, op. cit., at p. 609). To succeed in an action for malicious prosecution against the Attorney General or Crown Attorney, the plaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, and malice in the form of a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of "minister of justice". In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice. In fact, in some cases this would seem to amount to criminal conduct. 79. Two fundamental principles may be drawn from this passage; first, malice must be proven separately from an absence of reasonable and probable cause, and, second, malice must be based on deliberate conduct which is akin to fraud or criminal wrongdoing.

21 Since the question before the Court in Nelles was whether a cause of action for malicious prosecution existed in the abstract, no specific findings were made as to what could properly constitute an improper purpose sufficient to demonstrate malice. However, Iacobucci and Binnie JJ. analyzed that question in Proulx at para. 35: (A) suit for malicious prosecution must be based on more than recklessness or gross negligence. Rather, it 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 fueled by an improper purpose or, in the words of Lamer J. in Nelles, supra, a purpose inconsistent with the status of minister of justice. 81. Iacobucci and Binnie JJ. went on to hold as follows at para. 37: In the case at bar, various significant factors stand out as indicators of an improper purpose underlying the Crown s decision to initiate proceedings against the appellant. In discussing these factors, we do not wish to emphasize the importance of one over another. In the final analysis, it is the totality of all the circumstances that are to be considered in cases of this kind. 82. Iacobucci and Binnie JJ. considered a number of indicia of malice, including the absence of reasonable and probable cause at para. 38. However, they separately identified a specific improper purpose interference in a civil suit involving the plaintiff at paras (emphasis added): The tangled relationship between the criminal proceedings initiated against the appellant, and the appellant s defamation suits against Tardif and André Arthur, also suggests that the prosecution was motivated by an improper purpose. The prosecutor knew about the defamation suits, and that Tardif was retired by the time Paquet came forward. Nevertheless, he allowed Tardif to resume work on the case, even though he was in a conflict of interest and had no authority to conduct an investigation or to gather evidence. In our opinion, this juxtaposition of events shows the importance of the prosecutor s duty not to allow the criminal process to be used as a vehicle to serve other ends, in this case the ends of Arthur and Tardif in attempting to defend against the appellant s defamation action. The

22 Crown made the decision to prosecute with the full knowledge that prosecuting the appellant would potentially assist the defendants in the defamation actions. This was thus more than a simple abdication of prosecutorial responsibilities to the police or, in the case of Tardif, to a former police officer. Rather, the prosecutor lent his office to a defence strategy in the defamation suits and, in so doing, was compromised by Tardif s manipulation of the evidence and the irregularities that took place during the 1991 investigation process. 83. Nothing in Proulx suggests that a lack of reasonable and probable cause standing alone may give rise to an inference or presumption of malice, nor indeed that malice can be made out in the absence of an identified and proven improper purpose. Indeed, Proulx s articulation of a specific improper purpose, as well as its analysis that the factors alleged to support malice must be considered as indicators of an improper purpose, support the position set out in Nelles that such an improper purpose must be identified and proven. 84. Consistent with the above analysis of Proulx, numerous cases have held that an improper purpose must be demonstrated for a claim for malicious prosecution to stand. See for example: (a) R. v. Scott, 2002 CanLII (ON S.C.), where Cameron J. granted the defendant prosecutors motion for summary judgment on the basis that the plaintiff had not raised a triable issue as to malice. See in particular the following analysis at para. 49: I disagree with any suggestion that Dix is authority for saying that the absence of reasonable and probable cause alone is sufficient to infer malice. There must be evidence of a willful and intentional effort on the part of the Crown attorney to abuse or distort his or her proper role which takes the characterization of the Crown's conduct out of mere misjudgment or negligence or even recklessness. (b) Gabadon v. Toronto Police Services Board, 2003 CarswellOnt 2026 (S.C.J.), aff d 2003 CarswellOnt 4651 (C.A.), where Paisley J. similarly granted the defendant prosecutor s motion for summary judgment on the basis that the plaintiff s argument that the court might infer malice from an absence of reasonable and probable grounds did not raise a triable issue.

23 (c) Hawley v. Bapoo (2005), 76 O.R. (3d) 649 (S.C.J.) ( Hawley ), aff'd 2007 ONCA 503, where Ducharme J. dismissed a malicious prosecution claim against a private individual at trial based on the lack of any demonstrated improper purpose: paras (d) Correia v. Kohler Ltd., 2007 CanLII 691 (ON S.C.) ( Correia ), where Low J. granted the defendants motion for summary judgment against a claim in malicious prosecution on the basis that their alleged negligence or recklessness in dismissing and charging the wrong employee for theft could not give rise to an inference of malice: paras ; (e) Dagenais v. Dagenais, 2007 SKQB 50, aff d 2007 SKCA 117, where Currie J. held at para. 58 that the plaintiff s claim against three police officers lacked "a pleading of the underlying facts that could prove the malice necessary to establish the cause of action", but declined to strike the claim at para. 60 based on a Queen s Bench Rule as to the sufficiency of alleging malice as a fact. (f) (g) Moak v. Haggerty, 2008 CanLII 65 (ON S.C.), where Perell J. granted motions for summary judgment on behalf of several Crown and police defendants, but allowed a claim to proceed against a Crown prosecutor alleged to have used a plea bargaining process for the improper purpose of avoiding civil liability: para. 80. St. Jacques v. Doyle, 2008 CanLII 9381 (ON S.C.D.C.), where Ferrier J. upheld a Master s decision granting summary judgment to the defendants on the basis that the plaintiff had offered no evidence in support of an alleged improper purpose, and could not rely on an inference of improper purpose where any other explanation existed for the prosecution: paras. 6, A potentially contradictory message came from the Ontario Court of Appeal in Oniel v. Metropolitan Toronto (Municipality) Police Force, 2001 CarswellOnt 63 (C.A) ( Oniel ). There, Borins J.A. held at para. 57 that a jury charge respecting a malicious prosecution action

24 against two police officers was erroneous because it failed to provide that a lack of reasonable and probable cause could give rise to an inference of malice: (T)he jury should have been instructed that they could infer malice from the absence of reasonable and probable cause to continue the prosecution. As Fleming points out, malice can be proved by showing that the circumstances were such that the continuation of the prosecution can only be accounted for by implying some wrong or indirect motive to the respondents, although it may be impossible to say what it was. 86. Borins J.A. additionally held at para. 55 that malice could be made out based on a reckless indifference to the truth on the part of the defendant officers. This Court denied leave to appeal in Oniel, and decided Proulx without reference to Oniel. 87. Since 2001, when both Proulx and Oniel were decided, there has been substantial doubt as to which principles govern a determination of malice in a malicious prosecution action. See in this regard Widening Net, where Archibald J. discussed the uncertainty arising out of Proulx and Oniel at pp. 13 and 16: The majority decision (in Oniel) delivered by Borins J.A. has arguably eased the burden of proving malice. The absence of reasonable and probable cause may alone allow for an inference of improper purpose or malice. In effect, the Oniel decision may make it easier to establish the fourth element in the Nelles test of malicious prosecution. Perhaps the argument that the Oniel decision has broadened the test for malicious prosecution has been allayed by the Supreme Court of Canada s statement in Proulx that a suit for malicious prosecution must be based on more than recklessness or gross negligence. 88. One explanation for the seemingly different standards may be found in Hill v. Hamilton- Wentworth Regional Police Services Board, 2007 SCC 41. In that case, the majority of this Court held that the tort of negligent investigation could potentially be available against police officers in part because of the majority s acknowledgment that a plaintiff could not seek compensation for merely negligent acts under the tort of malicious prosecution: para In so holding, McLachlin C.J.C. outlined the policy differences between the role of a police officer and that of a Crown prosecutor as follows at para. 49:

25 It is true that both police officers and prosecutors make decisions that relate to whether the suspect should stand trial. But the nature of the inquiry differs. Police are concerned primarily with gathering and evaluating evidence. Prosecutors are concerned mainly with whether the evidence the police have gathered will support a conviction at law. 90. This distinction may explain the difference in outcomes as between Proulx and Oniel based on the respective defendants involved. 1 As Crown prosecutors are indeed required to carry out quasi-judicial functions which differ from those performed by police officers, a principled basis exists for requiring Plaintiffs to meet a higher standard of proof of malice before liability will be imposed on a Crown prosecutor. 91. In the Uniform Law Commission Report cited infra, Mungovan suggests two safeguards to better reflect the policy purposes set out in Nelles: an improper purpose requirement in keeping with the cases described above, and a requirement for specific evidence of malice beyond the absence of reasonable and probable cause. 92. Mungovan suggests that these safeguards be entrenched in statutes to reverse the course of the Appeal Judgment and other cases. The improper purpose requirement is described in the Report at para. 90: Improper purpose within the meaning of the fourth factor should be understood as one that is personal to the Crown accused of malicious prosecution. For example, a Crown may have been improperly motivated to prosecute out of anger or vengeance or by a desire for career advancement. If such a purpose is in fact motivating a Crown, then the tort of malicious prosecution is appropriate and can restore public confidence in the administration of justice. At the same time, since such instances would be rare, the bar to an action would remain high in keeping with the public policy rationale laid out in Nelles. 93. It is important to remember that neither the trial judge nor the Court of Appeal identified any improper purpose of the type contemplated in Nelles and Proulx. Accordingly, the fourth 1 In Oniel, Borins J.A. specifically distinguished Lamer J. s view of what a plaintiff must establish respecting malice where the defendant is an Attorney General or a Crown Attorney : para. 47. However, subsequent cases have not necessarily followed this distinction. See e.g. Hawley at para. 79 and Correia at para. 78, holding that an improper purpose requirement existed in a malicious prosecution claim against a private litigant.

26 requirement of the Nelles test that of malice has not been established and, accordingly the Plaintiffs claim cannot succeed. (b) Can Malice be Presumed from an Absence of Reasonable and Probable Cause? 94. Each of the decisions below was decided on the basis that a lack of reasonable and probable cause alone could form the basis for a finding of malice. 95. In the Non-Suit Judgment at para. 38 and the Trial Judgment at para. 315, Baynton J. held that in the absence of reasonable and probable cause, an evidentiary onus lies on a defendant to explain why any prosecution was continued: Proceeding without reasonable and probable cause is contrary to the law and demands a credible explanation, failing which the inference of malice can be drawn. 96. The Trial Judgment, at para. 381, was even more blunt in applying a presumption of malice based on the absence of reasonable and probable cause: In my view, proceeding with charges in such an extraordinary case in the absence of reasonable and probable cause constitutes a strong presumption of malice. The same consequences flow from continuing on with the prosecution of such a case. 97. The first problematic aspect of the judgments below is the presumption that a prosecution in the absence of reasonable and probable cause requires explanation by the defendants, without which a finding of malice may be made. This presumption effectively reverses the burden of proof on the fourth branch of the Nelles test. 98. In considering why such a reversal is not appropriate, an analogy may be drawn to the standard set out by this Court for a prosecution based on obstruction of justice in R. v. Beaudry, [2007] 1 S.C.R In that case, the nature and scope of a public officer s discretion was raised in the criminal prosecution of a police officer found to have obstructed justice by failing to seek a breath sample after stopping an intoxicated colleague. 99. Charron J. held as follows at paras in discussing the officer s discretion not to investigate or prosecute a possible criminal offence (without dissent on this point):