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Prosecution Terminated Favourably: Multiple Charges Brought and Resolved With Mixed Results
Question: Can a partially successful defence in a prosecution lead to a claim for malicious prosecution?
Answer: Yes, in Canada, even a partially successful defence may allow for a malicious prosecution claim if it can be shown that some charges were dismissed without a guilty finding. Explore your options with Caruso Legal Services to assess your case effectively.
Favourable Termination Explained
A malicious prosecution case involves a person, being the person accused of wrongdoing within a previous prosecutory matter as the underlying case, bringing a civil litigation lawsuit following a favourable termination of the underlying case. In addition to other elements of such a lawsuit, a precondition of malicious prosecution litigation involves proof that the underlying case ended in favour of the formerly accused person. Interestingly, what constitutes as a favourable termination can become a complicated issue when the previous prosecution.
The Law
Favourable Termination
Within a malicious prosecution case, a requirement for success involves proving that the previous prosecution was terminated in favour of the formerly accused person, who is now the Plaintiff within the malicious prosecution litigation. The meaning of terminated in favour requires that the previous prosecution was concluded without a finding a guilt or concluded without a settlement or a compromise. Such was explained in the case of Cockburn v. Kettle, 1913 CanLII 611, wherein it was said:
... in an action for malicious prosecution, although the prosecution may have in fact been terminated prima facie in favour of the plaintiff, it is competent to shew that it did not in fact terminate in his favour, and that the termination of it was the result of a compromise or agreement to withdraw the prosecution.
The facts in that case were somewhat different from the facts in the present case, because all that was noted in that case by the magistrate was, that the matter was dropped "settled out of Court." In this case the magistrate made a note that ",the prosecutor says he has no evidence to offer, and the charge is dismissed."
It cannot be, I think, that the mere production of the record of the dismissal of the complaint is all that the plaintiff is bound to shew. No doubt, that would be sufficient prima facie, but it cannot be that it is not open to shew that the proceedings did not in fact terminate in favour of the plaintiff, but that their termination was the result of a compromise. If it were not so, if the record were conclusive, it would practically mean that where a man was properly prosecuted for an offence which he had committed, and, in mercy to him, the- prosecutor had made up his mind not to prosecute, and had not, therefore, appeared to prosecute, with the result that the information or complaint was dismissed, the man whom he had befriended in that way could turn around and say that the prosecution had terminated favourably to him, and that he was entitled to maintain an action for malicious prosecution.
With the above said, it is necessary to bear in mind that prosecutions are often multi-faceted and that a mixed result may occur. Where it can be shown that only some of the charges brought were successfully prosecuted and other charges were terminated without conviction, the charges terminated without conviction may be argued as terminated in favour of the accused person. The point of law in that a partially convicted person may still, subject to all other elements being provable, successfully bring a malicious prosecution claim is found in Stout v. Track, 2013 ABQB 751, as well as Banks v. Bliefernich, 1988 CanLII 3035, among other cases, wherein such it is 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.
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 ...
Banks v. Bliefernich, 1988 CanLII 3035
As Banks explains, if the law permitted prosecutors to escape civil liability upon proving one of many accusations, such a law could be used as a license to engage in an open season type fashion intended to abuse accused persons.
Conclusion
When an accused person is prosecuted without full success, there may be possibility for success within a subsequent malicious prosecution lawsuit.
