From: Jason Neyers <>
Date: 06/11/2009 18:53:30 UTC
Subject: ODG: Malicious Prosecution in the SCC

Dear Colleagues:

Those of you interested in Malicious Prosecution and the definition of malice in tort law, will be interested in the SCC's decision in Miazga v. Kvello Estate, 2009 SCC 51 (  From the headnote:

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. ...
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”. ... 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.  [78][80‑81][85][89]

 In this case, there is no evidence to support a finding of malice.
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435