Q: I read about the recent Supreme Court’s decision in the case of the Saskatchewan prosecutor and the sexual assault case.
What is malicious prosecution, and why wasn’t this prosecutor liable?
A: This case was about whether a crown prosecutor, in a complex sexual assault case, believed there was a proper case to run. If not, the question was why did he run it and put the accused through the legal process.
The children made horrendous allegations of sexual abuse and satanic rituals at the hands of certain adults. It was ultimately determined that the children made up these stories and the defendants in the criminal trials were wrongfully accused.
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The Supreme Court recognized that there was “no question” that these people were victims of a serious miscarriage of justice.
These people sued two prosecutors, a police officer and a counsellor. One of the prosecutors was found liable, appealed his case to the Supreme Court and won.
Four factors required
To succeed in an action for malicious prosecution, a plaintiff must prove that the prosecution was initiated by the defendant, terminated in favour of the plaintiff, undertaken without reasonable and probable cause and motivated by malice or a primary purpose other than that of carrying the law into effect.
If you cannot show all four of these things, you cannot win a malicious prosecution case.
Malice is frequently debated, as it was in this case. It is a question of fact, requiring evidence that the crown prosecutor was motivated by an “improper purpose.”
The claimant has to prove that the prosecutor started or continued the prosecution with a purpose inconsistent with his or her role as a “minister of justice.” It must be shown that the prosecutor deliberately intended to subvert or abuse his office or the criminal justice process to such an extent that he exceeded the boundaries of his office.
In a statement that is important to all prosecutions, the Supreme Court said that the court is not to second guess every decision made by a prosecutor during a criminal case.
Instead, a court’s proper job is to review all the evidence related to the prosecutor’s state of mind in deciding whether the prosecution was motivated by an improper purpose.
This requirement of proof of malice ensures that prosecutors won’t be liable in cases where a prosecutor proceeds with a case due to reasons such as incompetence, inexperience, honest mistake or negligence.
This means prosecutors may prosecute a case as long as they believe there is a reasonable chance a conviction can be obtained. Only where that belief is absent and other improper motivations come into play can a prosecutor be successfully sued for malicious prosecution.
In this particular case, it was found there was absolutely no evidence of malice before the trial judge regarding this prosecutor.
As well, the Supreme Court felt the trial judge had indulged in second guessing the prosecutor’s decisions, which should not be done.
This case is important because it sets a standard of conduct for prosecutors and ensures that these public servants cannot be sued every time someone is unhappy about being charged and prosecuted for an alleged crime.
If that were the case, prosecutors would be greatly inhibited and often prevented from doing their jobs.
Crown prosecutors need to be free to make judgment calls about the cases they are given to prosecute and to use their skill and experience to the best of their abilities.
This case ensures protection for these vital players within Canada’s criminal justice system.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
