Crown and Government Liability - Malicious Prosecution. H.A. v. S.M.
In H.A. v. S.M. (Div Ct, 2021) the Divisional Court considered the tort of malicious prosecution and it's defences:
The elements of the tort of malicious prosecution were set out by the Supreme Court of Canada in Miazga v. Kvello Estate, 2009 SCC 51,  3 S.C.R. 339, at paras. 53-56. It requires the plaintiff to establish:. R v Scott
1. The prosecution was initiated by the defendant; It is well-established that the existence, or continued existence, of reasonable and probable grounds is fatal to claims in negligent investigation and malicious prosecution. The onus is on the plaintiff to establish an absence of reasonable and probable grounds. Where the evidence of a particular witness is essential to the existence of reasonable and probable grounds, establishing a breach of the standard of care in a negligent investigation claim requires a plaintiff to demonstrate that the police defendants had “overwhelming” evidence discrediting that witness: see J.H. v. Windsor (City) Police Services Board et al., 2017 ONSC 6507, 44 C.C.L.T. (4th) 257.
2. The prosecution was terminated in the plaintiff’s favour;
3. The absence of reasonable and probable grounds to commence or continue the prosecution; and
4. Proof that the defendant’s conduct was motivated by malice or an improper purpose.
 The Supreme Court of Canada in R. v. Storrey, 1990 CanLII 125 (SCC),  1 S.C.R. 241, at pp. 250-51, defined the concept of reasonable and probable grounds in the context of an arrest as requiring an investigating officer to subjectively have reasonable and probable grounds on which to base the arrest. The arrest must also be justifiable from an objective point of view but need not demonstrate anything more. In other words, “a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds” to make the arrest: see 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at para. 49. Whether the evidence known to the police or a prosecutor amounts to reasonable and probable grounds is a question of law: see R. v. Sheppard, 2009 SCC 35 at paras. 42-3.
 The function of the police is to investigate incidents which might be criminal, make a conscientious and informed decision as to whether charges should be laid and present the full facts to the prosecutor. Although this requires, to some extent, the weighing of evidence in the course of the investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. That is the task of prosecutors, defence lawyers and judges: Barclay, at para. 51.
 Regardless of possible frailties in credibility or reliability, the uncorroborated testimony of a single witness may be a sufficient basis upon which to convict, and therefore provides reasonable and probable grounds for an arrest and prosecution. In cases that turn on the credibility of an allegedly unbelievable complainant, where guilt may be proved depending on the trier of fact’s assessment of credibility, our courts have consistently held that the complainant’s credibility is best determined after the complainant has testified and, if he or she chooses, after an accused has also testified. It is up to the court trying the charges to evaluate witnesses, and police generally are not required to weigh and assess the evidence: J.H., at para. 6.
 The continued existence of reasonable and probable grounds is fatal to claims in negligent investigation and malicious prosecution. When the police have reasonable and probable grounds to arrest, the onus is on the plaintiffs to establish that reasonable and probable grounds have been vitiated. The plaintiffs have failed to discharge this onus. It is open to this court to grant summary judgment and dismiss the plaintiffs’ claims when the motions judge incorrectly failed to do so.
In R v Scott (Sup Ct, 2002) [affirmed at Ont Court of Appeal, 2003] the court made clear that the stress involved in a criminl trial by the defendant was not actionable, barring malice (which it also addresses at length):
 Under our system of criminal law, a person accused of a crime must bear the consequences of arrest and incarceration until trial. No one wants to be forced to bear the costs of defence, loss of a job, lost opportunities, loss of reputation, loss of freedom and other indignities that come with imprisonment. Subject to the granting of judicial interim release, even an innocent person must bear these consequences and without recourse to compensation.. Ontario Society for the Prevention of Cruelty to Animals v. Sovereign General Insurance Company
 Crown attorneys have duties that play an important part in this process. They are vested with a prosecutorial discretion to be exercised in the public interest separate from the obligations of the police and free of political or other partisan concerns. It is in the public interest that no one should be incarcerated or asked to stand the terror of trial in the absence of sufficient evidence. It is also in the public interest to continue a prosecution to trial where the admissible evidence indicates a reasonable chance of success. Crown attorneys must constantly assess the evidence presented by the police or other complainants, including its admissibility, credibility, reliability and probative value, to ensure that their discretion is being properly and fairly exercised. Our system provides judicial checks, such as preliminary hearings and motions to test compliance with the Charter and disclosure of the prosecution's case, the presumption of innocence, and the requirement of proof beyond a reasonable doubt, all in an attempt to ensure fairness to an accused. However, the Crown attorney must constantly assess the evidence to ensure continuation of the prosecution is warranted in the interests of justice, recognizing always that it is the court, not the Crown attorney, which decides guilt or innocence.
 In recognition of the duty of a Crown attorney to exercise his or her important discretion free of the chill of threats of civil prosecution, our courts have set a high barrier which must be overcome before a Crown attorney can be called to account in a court for failure to perform that duty. The plaintiff must establish on the balance of probabilities harm resulting from the tort of malicious prosecution by the Crown attorney, with particular attention to the evidence of the probability of malicious intent: Nelles v. Ontario (1989), 1989 CanLII 77 (SCC), 60 D.L.R. (4th) 609 (S.C.C.).
 To succeed in an action for malicious prosecution the plaintiff must prove:
a) the proceedings were initiated by the defendant;See Nelles at 639; Proulx v. Quebec (Attorney General) (2001), 2001 SCC 66 (CanLII), 206 D.L.R. (4th) 1 (S.C.C.) at 12-13, 48.
b) the proceedings terminated in favour of the plaintiff;
c) the absence of reasonable and probable cause; and
d) malice, or a primary purpose other than that of carrying the law into effect.
Reasonable and Probable Cause
 Reasonable and probable cause has a subjective element and an objective element. The subjective element consists of the prosecutor's actual honest belief in the guilt of the accused. The objective element requires that the prosecutor's belief must be reasonable, that is, 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 person in the position of the prosecutor to the conclusion that the person charged was probably guilty of the crime imputed. See Nelles at pp. 639 and 642. The Crown must have sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt before reasonable and probable cause exists. A lower threshold for initiating prosecutions would be incompatible with the prosecutor's role as a public officer charged with ensuring justice is respected and pursued. See Proulx at para. 31. This is what constitutes an arguable case to put before a jury.
 The absence of reasonable cause is a matter of law which can be decided by a judge on a motion under Rule 21 or Rule 20 to strike the action and so provides a screening mechanism for unmeritorious claims: See Lamer J. in Nelles at p. 642-3.
 Even at trial, the issue of whether there are reasonable and probable grounds that the accused committed an offence is a question of law to be determined by a judge: Pizzardi v. Ontario,  O.J. No. 1751 at para. 12, citing McGillivary v. New Brunswick (1994), 1994 CanLII 4465 (NB CA), 116 D.L.R. (4th) 104 (N.B.C.A.). In McGillivary at p. 108, the court said that, in the absence of mala fides, where a court orders the accused to stand trial there exist reasonable and probable grounds to believe that the accused committed the offence charged. The court cited the test at the level of the preliminary hearing as that set forth in United States of America v. Sheppard, 1976 CanLII 8 (SCC),  2 S.C.R. 1067, which I paraphrase:
Is there any evidence upon which a jury properly instructed could return a verdict of guilty? The justice must commit an accused for trial in any case in which there is admissible evidence which could, if it was believed, result in a conviction. In Temilini v. O.P.P. (Commissioner),  O.R. (2d) 664 (C.A.) a lawyer brought an action for malicious prosecution against the police after dismissal of fraud charges. On appeal from a motion under Rule 21.01 to dismiss the claim, the court said at p. 669:
The committal for trial may be helpful to the defence but it is not determinative. It is similar to the issuance of an Attorney General's fiat for prosecution.The court relied on Curry v. Dargie (1984), 62 N.S.R. (2d) 416 (C.A.) citing Macdonald J.A. at 429:
To my mind the fiat of the Attorney General is not conclusive proof that the proceeding was instituted by the informant on reasonable and probable grounds. It does, however, go a long way toward negating the lack of probable cause, particularly if it cannot be shown that the facts were not unfairly placed before the Attorney General when he gave his consent to the prosecution. The fiat therefore becomes a formidable obstacle in the path of the appellant.Temilini and Curry v. Dargie were cited with approval in Thompson v. Ontario, 1998 CanLII 7180 (ON CA),  O.J. No. 3917 (C.A.) at para. 39.
 In Temilini and in Thompson the courts were addressing only reasonable and probable grounds. They were not addressing the effect of a judicial order binding the accused over for trial on the issue of malice.
 Notwithstanding the equating of an Attorney General's fiat, a quasi judicial act, and the trial process preceding a judicial order of committal for trial, I am bound to follow Temilini rather than McGillivary on the impact of a judicial committal for trial on
the issue of reasonable and probable cause in an action for malicious prosecution. A similar conclusion was reached, following a principled analysis of a comparable situation, by Binks J. in Al's Steak House and Tavern Inc. v. Deloitte & Touche,  O.J. No. 427 (Gen. Div.).
 Malice is the equivalent of an improper purpose. It has 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. Malice on the part of a Crown attorney is a deliberate and improper use of the office such that he or she has "perpetrated a fraud on the process of criminal justice and in doing so has perverted or abused his [or her] office and the process of criminal justice": Lamer J. in Nelles at p. 639-40.
 Lamer J. continued in Nelles at p. 642:
… in cases of malicious prosecution we are dealing with allegations of misuse and abuse of the criminal process and of the office of the Crown Attorney. 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 prosecutorial function.and
… 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.These principles are repeated in the conclusion of the majority judgment in Nelles at p. 644.
 The majority judgment in Proulx at paragraph 35 stated:
… 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 Oniel v. Toronto (Metropolitan) Police Force, 2001 CanLII 24091 (ON CA),  O.J. No. 90 (C.A.), an action against the police rather than a Crown attorney, Borins J.A. discussed the issue of malice and the source of its definition in Nelles, starting at paragraph 43. He concluded at paragraph 47:
There can be no doubt that in the appropriate case it is proper to infer malice from the absence of reasonable and probable cause to commence or to continue a prosecution.He cited as authority cases dating back to the 19th century in the U.K. and into the 20th century in the courts of this province.
 Borins J.A. continued at paragraph 49:
Although the prosecutor may have reasonable and probable cause to commence a prosecution, if the prosecutor obtains information which suggests the person probably did not commit the offence, or recklessly disregards advice that such information could be obtained through routine investigative steps, the prosecutor lacks reasonable and probable cause to continue the prosecution, and malice may be inferred. At paragraph 51 Borins J.A. noted:
As the authorities indicate, malice has a "wider meaning than spite, ill-will or a spirit of vengeance and includes any other improper purpose." Leave to appeal Oniel was dismissed November 8, 2001.
 In Dix v. Canada (Attorney General), 2002 ABQB 580 (CanLII),  A.J. No. 784 (Alta. Q.B.) at paragraph 526 Ritter J. (now J.A.), after considering Oniel and Proulx, stated:
… it is clear that I cannot infer malice solely from a lack of reasonable and probable cause, which would ignore or collapse the fourth element of the test, malice, into proof of the third element, absence of reasonable and probable cause, contrary to the test established by Nelles and Proulx. Rather, I take the inference of malice established by Oniel, in relation to lack of reasonable and probable cause, to arise not simply on the basis of a lack of evidence that the suspect was "probably guilty", but where the evidence moves further along the continuum towards innocence, that is prosecution in the face of evidence that the suspect is "probably not guilty". To prosecute an individual who is probably not guilty can justifiably raise an inference of malice. Borins J.A. in Oniel did qualify the inference of malice with "in the appropriate case". I interpret this to mean that where there are other circumstances in addition to the absence of reasonable and probable cause the finder of fact may infer malice. 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. There were other factors in Dix such as misleading the court on a bail application, reliance on clearly inadmissible evidence and blacking out a name in a statement to prevent investigation of a witness by the defence: paras. 519, 520, 528-9. In addition, Dix acknowledges that the test for malicious prosecution requires elements beyond merely satisfying the third test of the absence of reasonable and probable grounds.
 McGillivary (above) stands for the proposition that a committal for trial, absent mala fides, is indication of reasonable and probable cause. I have decided that it is more appropriate to follow Temilini, which states that a committal for trial is persuasive, but not determinative, of reasonable and probable cause. However, the reasoning in McGillivary is useful with regard to its applicability to implied malice. Implied malice requires, among other things, evidence that leans towards the probable innocence of the accused. Therefore, whether a committal for trial is conclusive of, or strong evidence for, reasonable and probable cause, at the very least it shows that the evidence did not lean towards the probable innocence of the accused. Therefore, a committal for trial precludes implied malice by default.
In Ontario Society for the Prevention of Cruelty to Animals v. Sovereign General Insurance Company (Ont CA, 2015) the Court of Appeal stated as follows on the elements of the tort of malicious prosecution in an insurance context:
 Recall that here the parties expressly contracted for coverage for malicious prosecution. As noted by Sharpe J.A. in Hollinger, the tort of malicious prosecution requires a high level of intentional conduct. The elements of malicious prosecution are as follows: (i) legal proceedings must have been initiated by the defendant; (ii) those proceedings must have terminated in favour of the plaintiff; (iii) the defendant did not have reasonable and probable cause to initiate the proceedings; and (iv) the defendant’s conduct was characterized by malice or a primary purpose other than that of carrying the law into effect: Nelles v. Ontario, 1989 CanLII 77 (SCC),  2 S.C.R. 170, at pp. 192-93; and Henry v. British Columbia (Attorney General), 2015 SCC 24 (CanLII), 383 D.L.R. (4th) 383, at para. 45.. Patinios v. Cammalleri
 Furthermore, the target must have suffered an injury. As noted in G.H.L. Fridman’s The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters Canada Limited, 2010) at p. 823: “The plaintiff must incur or suffer damage in consequence of the malicious prosecution. If he does not, no action will lie.” Or, as stated in Carolyn Sappideen and Prue Vines, Fleming’s The Law of Torts, 10th ed. (Sydney: Law Book Company, 2011) at p. 706:
We have seen that a claim for malicious prosecution must be founded on actual injury. This must consist either in injury to reputation, presumed wherever the plaintiff was accused of a crime involving scandalous reflection on the plaintiff’s fair name; or injury to the person, as when the plaintiff was imprisoned or put in jeopardy of it; or damage to the plaintiff’s pecuniary interests, such as being put to expense in defending himself against the charge. In essence, malicious prosecution involves intentional conduct and malice and no action will lie in the absence of actual injury.
In Patinios v. Cammalleri (Ont CA, 2017) the Court of Appeal briefly sets out the elements of the tort of malicious prosecution:
 The appellant acknowledges that the trial judge applied the correct test for malicious prosecution, set out in Miazga v. Kvello Estate, 2009 SCC 51 (CanLII),  3 S.C.R. 339. The plaintiff must prove that: (1) the prosecution was initiated by the defendant; (2) it was terminated in the plaintiff's favour; (3) there was an absence of reasonable and probable cause to commence the prosecution; and (4) the defendant's conduct in setting the criminal process in motion was fueled by malice.. Pate Estate v. Galway-Cavendish and Harvey (Township)
In Pate Estate v. Galway-Cavendish and Harvey (Township) (Ont CA, 2013) the Court of Appeal stated the test for malicious prosecution:
 The test for malicious prosecution was set out by the Supreme Court of Canada in Nelles v. Ontario, 1989 CanLII 77 (SCC),  2 S.C.R. 170, at pp. 192-193:. Curley v. Taafe
There are four necessary elements which must be proven for a plaintiff to succeed in an action for malicious prosecution:
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.
In Curley v. Taafe (Ont CA, 2019) the Court of Appeal stated as follows on the elements of the tort of malicious prosecution:
(1) Malicious prosecution: Initiation of the prosecution. Biladeau v. Ontario (Attorney General) (Ont CA, 2014)
 There are four necessary elements which a plaintiff must prove in an action for the intentional tort of malicious prosecution:
1. The proceedings must have been initiated by the defendant
2. The proceedings must have terminated in favour of the plaintiff
3. The plaintiff must show that the proceedings were instituted without reasonable and probable cause and
4. The defendant was actuated by malice.
See Nelles v. Ontario, 1989 CanLII 77 (SCC),  2 S.C.R. 170, at pp. 192-93.
 The bar for a successful malicious prosecution action is deliberately set high, to avoid unduly chilling the willingness of individuals to seek recourse from the police. As Low J. observed in Correia v. Canac Kitchens (2007), 2007 CanLII 691 (ON SC), 56 C.C.E.L. (3d) 209 (Ont. S.C.), at para. 75, rev’d on other grounds 2008 ONCA 506 (CanLII), 91 O.R. (3d) 353:
It is often observed that the bar is set very high in a claim of malicious prosecution and that a plaintiff has a very difficult burden to meet to make out the claim. It is in the public interest that this be the case because criminal prosecutions are brought not for the benefit of the prosecutor nor for the benefit of the complainant but rather for the common welfare of society. Second, because the standard of proof is very high in a criminal prosecution, there will be many prosecutions brought that do not succeed not because the charge is unfounded but because the standard of proof has not been met. That the threshold for success is high in an action of malicious prosecution therefore balances the public interest in bringing to justice persons who may have broken the law against the private interest of persons who have been wrongfully prosecuted without reasonable grounds and for oblique or improper motives. As indicated in Nelles, the first element that a plaintiff in an action for malicious prosecution must establish is initiation of the proceedings by the defendant. Simmons J.A. elaborated on the nature of the conduct required to amount to initiation of a prosecution by a private citizen in Kefeli v. Centennial College of Applied Arts and Technology (2000), 23 C.P.C. (5th) 35 (Ont. C.A., in Chambers), at para. 24:
A claim for malicious prosecution requires that the defendant must have initiated the prosecution or set it in motion, and that, ordinarily, the court will view the police officer who laid the charge as being the person who set the prosecution in motion. However, he also submits, correctly, that the complainant may be treated as the prosecutor in exceptional circumstances, including the following:
• the complainant desired and intended that the plaintiff be prosecuted;
• the facts were so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment; and
• the complainant procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both. [Citations omitted.] [Footnotes omitted.]
In Biladeau v. Ontario (Attorney General) (Ont CA, 2014) the Court of Appeal set out the elements of the tort of malicious prosecution as follows:
 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),  2 S.C.R. 170, at pp. 192-194; see also Miazga v. Kvello Estate, 2009 SCC 51 (CanLII),  3 S.C.R. 339, at para. 3. Only the third and fourth elements are at issue in this appeal.
 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.
 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),  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.] In R. v. Trochym, 2007 SCC 6 (CanLII),  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.] 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.