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Improper Overcharging Strategies: The Prosecution of Unjustly Excessive or Aggressive Charges
Question: Are scorched Earth tactics in prosecution unfair?
Answer: Yes, these tactics can overwhelm the accused with excessive charges, compromising fairness and the justice system's integrity. Upholding procedural fairness is essential—seek help to ensure your legal rights are protected.
Unfairness Within Scorched Earth Tactics
In the context of malicious prosecution, significant concern arises where prosecutorial conduct departs from procedural fairness, particularly through practices such as overcharging or the adoption of a scorched Earth strategy. This conduct often manifests through the advancement of numerous trivial allegations, or a multitude of charges lacking reasonable foundation, seemingly intended to overwhelm the accused. Such tactics, viewed as an abuse of prosecutorial discretion, offend the principles of fairness that underpin the administration of justice. The deployment of overwhelming litigation as a strategy is condemned, as it may improperly induce guilty pleas from accused persons, thereby compromising the legitimacy of outcomes and diminishing public confidence in the justice system.
The Law
Overcharging, meaning overzealous prosecution, is without explicit unlawfulness per se and where such occurs merely through zealousness rather than through maliciousness, overcharging is unlikely to suffice in supporting a civil litigation case for the tort of malicious prosecution. About concerns for overcharging, in the case of R. v. Sciascia, [2017] 2 S.C.R. 539, the Supreme Court said:
[31] ... The Crown is entitled to pursue charges with a reasonable prospect of conviction that are in the public interest. Nonetheless, the Crown must be careful not to exercise its discretion with too heavy of a hand. As this Court cautioned in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 45:
Where the additional or heightened charges are marginal, and pursuing them would necessitate a substantially more complex trial process and jury charge, the Crown should carefully consider whether the public interest would be better served by either declining to prosecute the marginal charges from the outset or deciding not to pursue them once the evidence at trial is complete.
[32] Screening out marginal charges that add complexity is a particularly important function given the strains of our overburdened criminal justice system: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 79. Nothing in these reasons should be read as incentivizing the Crown to pursue unnecessary charges.
Concerns for procedural fairness, judicial efficiency, and the proper administration of justice, as relating to overcharging were also mentioned in the case of R v. Nasr, 2018 ONSC 1465, which was addressing overcharging within the criminal law context, where it was said:
[63] The absence of any evidence to support first degree murder is a real concern. Overcharging and over prosecuting can pose an impediment to the fairness and efficiency of criminal justice. Justice Moldaver wrote recently:
31 … The Crown is entitled to pursue charges with a reasonable prospect of conviction that are in the public interest. Nonetheless, the Crown must be careful not to exercise its discretion with too heavy of a hand. As this Court cautioned in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 45:
Where the additional or heightened charges are marginal, and pursuing them would necessitate a substantially more complex trial process and jury charge, the Crown should carefully consider whether the public interest would be better served by either declining to prosecute the marginal charges from the outset or deciding not to pursue them once the evidence at trial is complete.
32 Screening out marginal charges that add complexity is a particularly important function given the strains of our overburdened criminal justice system: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 79. Nothing in these reasons should be read as incentivizing the Crown to pursue unnecessary charges.
[64] Fairness to the accused and the proper management and administration of the court dictate that excessive charges not be laid. The distortions caused to the entire process are very costly.
[65] In recommending post-charge Crown screening of charges against accused persons, the Martin Committee (Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, (1993) The Honourable G. Arthur Martin, O.C., O.Ont., Q.C., LL.D., Chair) said this about overcharging [pp. 137-139]:
…there may be "over charging," either by laying a more serious charge than is warranted, or by laying more charges than are warranted. First and foremost, over charging is an irresponsible exercise of charging discretion by the police, and must be prevented through police education. However, any over charging that does occur must, in the Committee's view, be corrected to the greatest extent possible in the [Crown] screening process. More particularly, it is not, in the Committee's opinion, appropriate to permit excessive charging to pass unaltered through the screening process in order to accord the Crown bargaining leverage in the conduct of resolution discussions. Such a practice misrepresents the nature of the offence, and lengthens and complicates resolution discussions by requiring additional effort and exchange to remove what is ultimately an artificial impediment to agreement. The English Code for Crown Prosecutors, s. 12, aptly, in the Committee's view, states the applicable principles as follows:
A multiplicity of charges imposes an unnecessary burden on the administration of the courts as well as upon the prosecution, and often tends to obscure the essential features of the case.... Multiplicity of charging should never be used in order to obtain leverage for the offering of a plea of guilty.
…
Charge screening that eliminates over charging may alter the dynamic of subsequent resolution discussions, particularly in localities where some over charging might have historically existed to provide subject matter for plea bargaining.
Malice Defined
Again, it must be emphasized that overcharging may occur due to prosecutorial zeal rather than due to malice; and if so, a subsequent lawsuit alleging malicious prosecution will fail; accordingly, before initiating civil litigation alleging malicious prosecution, a proper understanding of malice warrants review. Malice is defined in many cases and in many contexts, and was well explained in the case of Oniel v. Marks, 2001 CanLII 24091 (ON CA), where it was said:
[51] As the authorities indicate, malice has a “wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose”. Evidence that a prosecution was continued when available evidence of the unreliability of a complainant’s information has been deliberately or recklessly ignored, in my view, amounts to evidence from which an improper purpose may be inferred. Moreover, as I will explain, taking the position, as the respondents did, that the prosecution would continue in the face of the information supplied by Mr. Copeland if that were the wish of Mr. Cantero may also constitute an improper purpose as they would not be acting in furtherance of justice, having virtually abdicated the responsibilities and duties of a prosecutor to the complainant.
[52] Moreover, considering the evidence on which they found that the respondents lacked reasonable and probable cause to continue the prosecution, the jury should have been instructed that they could infer malice from the absence of reasonable and probable cause to continue the prosecution. In other words, the jury should have been instructed that if they concluded that the circumstances were such that the continuation of the prosecution could only be accounted for by the respondents’ disregard of the information provided by Mr. Copeland, or by Mr. Cantero’s desire that it proceed, or both, they were entitled to infer that the respondents continued the prosecution for an improper purpose. As Fleming points out, malice can be proved by showing that the circumstances were such that the continuation of the prosecution can only be accounted for by implying some wrong or indirect motive to the respondents, although it may be impossible to say what it was.
[53] In fairness to the trial judge, it should be noted that his instructions on malice appear to have been derived from a standard civil jury charge precedent commonly used in Ontario. In my view, in the circumstances of this case, a more detailed explanation of malice was required. Although the trial judge’s initial reference to malice in the italicized passage found in paragraph 31 was satisfactory, his subsequent attempt to expand on what he said amounted to reversible error. The first error is to be found in the following passage, quoted earlier in paragraph 35:
What does malice mean in this context? The prosecution has been initiated or carried out maliciously if it was done for a purpose other than bringing an offender to justice but out of personal ill will, spite or for selfish purposes and with reckless disregard to the right of the person accused. [Emphasis added.]
[54] This passage conflated several of the ways in which a person can act maliciously in continuing a prosecution. It was capable of being understood by the jury as saying that the jury cannot find that malice existed unless the person also acted “out of personal ill will, spite or for selfish purposes and with reckless disregard to the right of the person accused”. [Emphasis added.] The trial judge should have made it clear that malice exists if the jury were to find that the respondents continued the prosecution either for an improper purpose, or in reckless disregard of evidence which would have disclosed the unreliability of the information provided by Mr. Cantero, or out of ill will, spite or for selfish purposes, or because Mr. Cantero wanted them to do so. In the circumstances of this case, linking together the various factors capable of constituting malice, amounted to reversible error.
[55] The trial judge compounded this error in the final paragraph of his definition of malice when he stated:
…but unless you find that they acted with malice for some improper purpose in order to do harm to the plaintiff or from spite or from some ill will they bore him, then malice is not going to stand. [Emphasis added.]
It was incorrect to link improper purpose with a motive to do harm to the plaintiff. As the authorities indicate, it is sufficient to find that the criminal law was used for an improper purpose. It is unnecessary that the plaintiff prove, or that the jury find, the reason for the improper purpose. I do not believe that the trial judge’s subsequent instruction that the jury could consider the respondents perseverance in the prosecution “after acquiring positive knowledge of the plaintiff’s innocence” as something they “would want to consider in determining whether or not there was malice” was sufficient to cure this error.
[56] In my view, the circumstances of this case required a clear direction on the inference that the jury could draw from the absence of reasonable and probable cause to continue the prosecution. No such instruction was given.
[57] By failing to give the jury a clear direction that it could infer malice if it found that the respondents persisted with the prosecution with reckless indifference to the guilt or innocence of the appellant, the trial judge erred. ...
As per the Oniel case, malice may be inferred if despite, "the absence of reasonable and probable cause", a prosecution is continued by a prosecutor, if a prosecutor maintains a prosecution with reckless indifference to innocence or guilty, of if the prosecution was brought or continued for an improper purpose being some reason other than the purpose of genuinely carrying the law into effect. Accordingly, where a prosecutor provably engages in overcharging for the purpose of overwhelming the accused person, such may constitute as a malicious prosecution.
Excessively Brought Allegations
In some circumstances, a prosecution may involve numerous allegations, brought for the apparent purpose of causing overwhelm, such as emotional harm or financial harm, to the accused person. As per the Oniel case above, if it can be proved that there was an purpose for the prosecution that is other than to carrying the law into effect, such may qualify as the malice necessary to support a malicious prosecution case. This potential remains even if some of the allegations are successfully prosecuted whereas the risk of liability for malicious prosecution tempers a prosecutor from pursuing numerous reckless accusations alongside at least one provable allegation. The possibility of bringing a successful malicious prosecution claim where a prosecutor engaged in overcharging with numerous unsuccessful allegations pursued alongside a provable allegation was expressed within the cases of Stout v. Track, 2013 ABQB 751, and Banks v. Bliefernich, 1988 CanLII 3035, wherein each it was said:
[44] There is Canadian case law that argues, for sound policy reasons, that the mere fact an offender is convicted of some components of a multi-offence scenario does not exclude the possibility the offender was injured by another person’s malicious prosecution: Banks v Bliefernich (1988), 1988 CanLII 3035 (BC SC), 24 BCLR (2d) 397, 44 CCLT 144 (BCSC), Radford v Stewart.
[3] There is no doubt that in order to succeed in his action for malicious prosecution, the plaintiff must prove that the proceedings instituted or continued by the defendants were terminated in his favour. It is equally clear that a stay of proceedings amounts to a favourable termination. See Romegialli v. Marceau, 1963 CanLII 134 (ON CA), [1964] 1 O.R. 407, [1964] 2 C.C.C. 87, 42 D.L.R. (2d) 481 (C.A.). What is not so clear are the consequences of a split decision, where some proceedings are terminated in favour of the accused and others are not.
[4] In McCarthy v. Barter (1895), 15 C.L.T. 198 (N.W.T.), the plaintiff had previously been suspended from the practice of law as a consequence of several allegations of professional misconduct brought against him by the defendants. He successfully appealed the order of suspension, although the order for costs against him was upheld because two of the four judges who heard the appeal felt that he had been guilty of at least some of the allegations of unprofessional conduct. In his claim for damages for malicious prosecution, the trial judge held that because of the favourable determination on some of the charges, it could not be said that the plaintiff's action "would not lie on account of the partly unfavourable termination". In reaching this conclusion, reliance was placed on the decision in Boaler v. Holder (1887), 3 T.L.R. 546, where it was held that conviction on a lesser included offence was no bar to an action for maliciously prosecuting the more serious offence.
[5] Both of these are old decisions, but the point does not seem to have arisen in recent times, and although neither is strictly binding on me, I am of the view that they correctly determine the outcome of this application. If, as the defendants argue, multiple charges on a single indictment ought to be treated as a single proceeding, so that a conviction on one automatically bars any action for malicious prosecution with respect to the others, there would be nothing to prevent wanton and reckless accusations being launched against a person so long as they were coupled with at least one provable allegation of criminal conduct. The law relating to malicious prosecution is intended to provide a remedy for those against whom proceedings are maliciously brought without reasonable and probable cause. That remedy would disappear if such proceedings could simply be shielded behind a single provable allegation. An unprovable and malicious allegation is no less offensive to the law simply because it is joined with one for which reasonable and probable cause exists, and with respect to which there is an absence of malice.
[6] It follows that the plaintiff's plea of guilty on the charge of threatening does not automatically compromise his action for damages for malicious prosecution, although the scope of that claim is most certainly limited to the assault prosecutions.
[7] I have been slow to arrive at this conclusion because of the practical consequences that might be seen to flow from it. I am aware of the fact that in many instances where multiple criminal charges are laid, a compromise is arrived at between Crown and defence, with the result that one or more pleas are entered in exchange for which the balance of the charges are either stayed or withdrawn. It would be unfortunate if every such accommodation gave rise to a potential claim for damages for malicious prosecution.
[8] It may be that where an accused person agrees to a compromise of that sort he will be estopped from later claiming that any part of such proceedings ended in his favour. In Baxter v. Gordon Ironsides & Fares Co. (1907), 13 O.L.R. 598 (C.A.), a charge of concealing and disposing of property with intent to defraud his creditors was "settled out of court" when the plaintiff agreed to pay the full amount of his indebtedness to the complainant company. The Court of Appeal set aside the plaintiff's judgment in his ensuing action for damages for malicious prosecution, holding that termination of the charge as a result of a compromise or agreement was not the favourable termination which the law requires in such cases.
[9] On the face of it, I can see little difference between an accommodation of the sort arrived at in the Baxter case and that which results when the Crown and the accused, for reasons of expediency, agree to some formal or informal plea bargain. In any event, there is no need to decide the point, for on the material before me there is no explanation offered for the stays of proceedings which were entered, and I could not reasonably infer that such a compromise or agreement was concluded from the mere fact that the proceedings unfolded the way they did.
Conclusion
The improper use of overcharging and overwhelming strategies within prosecutions presents a serious threat to the integrity of the justice system. When prosecutorial tactics cross into abusive practices designed to intimidate or coerce, rather than to fairly adjudicate, the result is a system that risks convicting the innocent and undermining public trust. Upholding procedural fairness, ensuring that charges are laid only upon reasonable grounds, and rejecting the use of prosecution as a tool of oppression are essential to preserving the legitimacy of legal proceedings. A justice system committed to true fairness must remain vigilant against prosecutorial excesses and must ensure that every accused person faces only allegations that are properly founded, fairly presented, and adjudicated without an undue oppressive purpose.
