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Torts - Malicious Prosecution

Biladeau v. Ontario (Attorney General) (Ont CA, 2014)

In this case the Court of Appeal set out the elements of the tort of malicious prosecution as follows:
[17] The tort of malicious prosecution has four elements, namely, that the proceedings must have been: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause to commence or continue the prosecution; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect: see Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at pp. 192-194; see also Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339, at para. 3. Only the third and fourth elements are at issue in this appeal.

[18] The third element in a malicious prosecution claim is focused on the trial Crown’s decision to initiate or continue with a criminal prosecution. This decision is one of the “core elements” of prosecutorial discretion, and is “beyond the legitimate reach of the court” unless a Crown prosecutor steps out of his or her role as “minister of justice”: Miazga, at paras. 6-7.

[19] A description of the Crown’s role as “minister of justice” that is often cited in our jurisprudence is found in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23-24:
It cannot be over‑emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [Emphasis added.]
[20] In R. v. Trochym, 2007 SCC 6 (CanLII), [2007] 1 S.C.R. 239, at para. 79, the Supreme Court added the following comment on the role of Crown counsel:
Crown counsel are expected to present, fully and diligently, all the material facts that have evidentiary value, as well as all the proper inferences that may reasonably be drawn from those facts. However, it is not the Crown’s function “to persuade a jury to convict other than by reason”: R. v. Proctor (1992), 1992 CanLII 2763 (MB CA), 11 C.R. (4th) 200 (Man. C.A.), at para. 59. Rhetorical techniques that distort the fact-finding process, and misleading and highly prejudicial statements, have no place in a criminal prosecution. [Emphasis added.]
[21] The fourth element in a malicious prosecution claim – that the proceedings were motivated by malice – requires that the trial Crown commenced or continued the prosecution with a purpose inconsistent with his or her role as a “minister of justice”: Miazga, at para. 89.

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