Criminal Section Minutes 2007

Report of the Joint Criminal/Civil Section Working Group on Malicious Prosecution (Joint Session)

The paper was presented by Judy Mungovan, Counsel, Ministry of the Attorney General of Ontario.

In 2006, a Joint Criminal/Civil Section Working Group was established to consider the need for uniform legislation to respond to concerns being reported across Canada regarding common law developments in the intentional tort of malicious prosecution.

The presenter provided an overview of the Supreme Court of Canada decision of Nelles v. Ontario as well as subsequent interpretations by the Courts including the latest Saskatchewan Court of appeal decision in Miazga v. Kvello Estate.

It was noted that, in Nelles, the Supreme Court of Canada (largely on policy grounds) brought an end to the notion of complete immunity for Crown prosecutors but that it is clear from the Supreme Court's reasons that the exception it intended to carve out from the doctrine of absolute immunity for the Crown was to be sufficiently narrow and onerous so as to catch only Crown conduct that was truly maliciously motivated. Despite the policy rationale stated in Nelles regarding the balance between preventing absolute immunity for Crowns in malicious prosecution actions, while ensuring a healthy respect for Crown discretion in prosecutorial decisions, the subsequent jurisprudence has diminished the safeguards the Supreme Court of Canada created.

The Nelles case set out four discrete grounds for the tort of malicious prosecution against a Crown prosecutor. However, with regard to the third element (absence of reasonable and probable cause), cases subsequent to Nelles show an increasing judicial willingness to review the Crown's reasoning in determining that a prosecution should go forward. Also, it was noted that there is a disconnect between the standard a Court uses to review the decision to prosecute (reasonable and probable cause), and the standard a prosecutor is instructed to follow when deciding to prosecute (reasonable prospect of conviction). Of even more concern, where courts have determined that no reasonable and probable cause exists, some have used this to infer malice on the part of the Crown, thereby 'conflating' the fourth element (requiring malice or some improper purpose) with the third. Indeed, the Saskatchewan Court of Appeal, in Miazga, ultimately concluded that a Crown's subjective views about the accused's guilt or innocence spoke directly to the existence of reasonable and probable cause and may in turn be evidence of malice. The fourth element of malice was intended by the Supreme Court to be a bulwark against frivolous actions and actions based solely on negligence, but the jurisprudence has not evolved in this manner.

The presenter noted that the development of the jurisprudence is of serious concern to Crown prosecutors. The three provinces that do keep annual records (Alberta, Quebec and Ontario) show an increasing rate of malicious prosecution civil suits. The Working Group identified early on the dangers that stem from an apparent loosening of the criteria for bringing a claim of malicious prosecution against a Crown prosecutor:

  • an increased risk of frivolous prosecution claims that demoralize both the Crown named and Crowns in general;
  • an increased risk that this will lead not only to more malicious prosecution claims, but also to other actions in tort to which Crowns have been traditionally immune; and
  • the lack of clarity in recent jurisprudence has left Crowns unsure how to best fulfil their quasi-judicial roles as "ministers of justice" due to an apparent gap between the standard that compels a Crown to proceed with a prosecution that is in the public interest and the standard a Court uses when subsequently reviewing that same decision to proceed.

It was also noted that courts are reviewing the general exercise of Crown discretion in new ways. In addition to allowing actions alleging malicious prosecution, they have also reviewed decisions of Crowns to not prosecute.

Although the focus of the presentation and the paper was on recent interpretation of the Nelles test, the Working Group also identified other issues for further consideration, such as:

  • do public policy considerations support suggestions in jurisprudence that prosecutorial liability can or should be founded on torts other than malicious prosecution (such as misfeasance in a public office, breach of fiduciary duty, conspiracy and interference with economic relations);
  • is there a need for uniform rules of court that effectively and fairly screen out frivolous lawsuits against prosecutors; and
  • is there a need to develop uniform legislation restricting the ability of plaintiffs to sue prosecutors in their personal capacity for professional decisions made as agents of the Attorney General?
  • The Working Group recommended that the Conference consider the following three issues:
  • the preparation of a uniform law entrenching the Nelles criteria as the exclusive basis on which Crown prosecutors may be sued for malicious prosecutorial acts;
  • the preparation of a uniform law making Attorneys General solely liable for the torts committed by prosecutors as agents of the Attorneys General and the only party to be named in actions for malicious prosecution and related claims; and
  • the preparation of other uniform jurisdictional responses that would fairly and effectively limit the harm caused by frivolous malicious prosecution lawsuits.


During the discussion, it was noted that Criminal Section delegates generally supported the goals of the Working Group as well as their recommendations. The main points raised during the Criminal Section debates were reported as follows:

There is general agreement that there is a disconnect between the standard of reasonable prospect of conviction applied in the context of a prosecution and the subjective component of the third element of the test enunciated in Nelles, which requires absence of reasonable and probable grounds that an offence has been committed to bring an action for malicious prosecution;

From a public policy perspective, Crown prosecutors should be in a position to evaluate, at every stage of the process, whether there continues to be reasonable prospect of conviction and determine whether charges against the accused should be withdrawn without the possible threat of a lawsuit for malicious prosecution; and

There is a need to define what constitutes improper purpose or malice in legislation and clarify the type of evidence required to prove malice or improper purpose so that cases that do not have merit can be promptly dismissed.

It was also noted during the joint session discussion that because claims in malicious prosecution are fact-based, the meaning given through legislation to the terms improper purpose and malice should not be too specific. It was further noted that what is needed is a requirement that only very flagrant evidence of malice be accepted and not simply evidence inferred from lack of reasonable and probable grounds.

After the discussion, the following resolution was presented:


That the Joint Civil/Criminal Working Group continue and, pursuant to the recommendations in the Report and the directions of the Conference:

(a) prepare a draft Act and commentaries; and

(b) recommend other uniform jurisdictional responses that would fairly and effectively limit the

harm caused by frivolous malicious prosecution lawsuits for consideration at the 2008 meeting.


The Chair expressed his appreciation for the assistance provided by the Secretary and thanked her for the work performed throughout the year and during the week. The Chair indicated that it was a privilege for him to work with members of the Executive Committee as well as those of the Criminal Section Steering Committee and thanked them for their assistance during his chairmanship. The Chair also thanked the interpretors and technicians for their assistance.

The Chair wished the incoming Chair the best of luck and assured her that he would remain available to assist her in her work throughout the year. The Chair also commended delegates for the interesting debates and for their contribution to the meeting. The Chair encouraged all delegates to participate in next year’s ULCC, held in Quebec City.

Delegates thanked the Chair for his excellent chairmanship and expressed appreciation for the Chair’s work throughout the year and during the week.

The Nominating Committee recommended that Nancy Irving to be elected as Chair of the Criminal Section for 2007-2008 and it was recommended that Marvin Bloos be nominated to be the next Chair of the Criminal Section 2008-2009.

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August 2021

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