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Requirement of Maliciousness: Bad Faith Within the Underlying Prosecution
Question: How can malice affect a malicious prosecution claim?
Answer: Malice is crucial in malicious prosecution cases, requiring proof that a prosecutor acted with improper motives. If you believe you've been wrongfully charged, exploring your options with a trusted legal professional could provide you with the support to seek compensation.
Burden of Proof of Malice
Malicious conduct within an underlying prosecution is a requirement within a malicious prosecution case whereas, if otherwise, every failed prosecution of charges or accusations could result in liability upon a prosecutor. Such a risk would result in the prosecution of only the most perfectly prosecutable cases and a chilling effect upon the pursuit of justice throughout society. Of course, for those persons who were unjustly pursued with charges or allegations, compensation through civil liability for having endured a malicious prosecution may be available as a remedy where malice in the underlying prosecution is proven.
The Law
The presence of malice and lack of reasonable and probable cause, among other things, must be proven within a malicious prosecution case. Proving a lack of reasonable and probable cause can be difficult and was stated so as follows:
[25] Malicious prosecution is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fuelled by malice: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at para. 56. The plaintiff holds the burden to provide proof of actual malice: Miazga at paras. 79-81 and 89. That burden requires the plaintiff prove that the defendant perpetrated a fraud on the process of criminal justice, engaged in criminal conduct, or abused or exceeded the boundaries of his or her office: Nelles at p. 194; or perverted the law to achieve a purpose other than the legitimate discharge of their duties: Farley (S.C.) at para. 36.
[26] Malice requires proof of an improper purpose. As the Supreme Court confirmed in Miazga at para. 81:
By requiring proof of an improper purpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutor proceeds, absent reasonable and probable grounds, by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence [citation and quotation omitted].
[27] Tunnel vision alone is not enough to support a claim of malicious prosecution: Farley (S.C.) at para. 62.
[28] The Supreme Court opined that a plaintiff has the notoriously difficult task of establishing a negative (the absence of reasonable and probable cause), and is held to a very high standard of proof to avoid a non-suit: Nelles at p. 194. If the defendant initiated or continued the prosecution based on an honest albeit mistaken belief that reasonable and probable cause indeed existed, the defendant therefore acted for the proper purpose of carrying the law into effect and the action must fail: Miazga at para. 79.
[29] To have reasonable and probable grounds, an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest and the arrest must also be justifiable from an objective point of view: 495793 Ontario Ltd. v. Barclay, 2016 ONCA 656, [2016] O.J. No. 4615 at para. 49. The determination of whether the requisite grounds exist is based upon an analysis of the circumstances apparent to the officer at the time of the arrest, not at a later date: Wong v. Toronto Police Services Board, 2009 CanLII 66385 (ON SC), [2009] O.J. No. 5067 (S.C.) at para. 61. Although making a conscientious and informed decision about whether to lay charges requires, to some extent, weighing evidence during an investigation, police are not required to evaluate the evidence to a legal standard or make legal judgments. Nor is the officer “required to exhaust all possible routes of investigation or inquiry, interview all potential witnesses prior to arrest, or to obtain the suspect’s version of events or otherwise establish there is no valid defence before being able to form reasonable and probable grounds”: Barclay at paras. 50-52; Kolosov v. Lowe’s Companies Inc., 2016 ONCA 973, [2016] O.J. No. 6702 at paras. 8-10.
The plaintiff has the onus to demonstrate the absence of reasonable grounds. A plaintiff must demonstrate that the defendant officers had before them facts pointing so overwhelmingly to the plaintiff’s innocence that no reasonable person could have believed in the plaintiff’s guilt.
... While it may be possible to infer malice from the absence of reasonable and probable cause to commence or to continue a prosecution, it is only appropriate to do so where the “circumstances [are] such that prosecution can only be accounted for by implying some wrong or indirect motive to the prosecutor, although it may be impossible to say what it was” [citations omitted].
[31] The objective existence or absence of reasonable and probable cause is a question of law for the judge to decide. This means “that an action for malicious prosecution can be struck before trial as a matter of substantive inadequacy”, or on a motion for summary judgment: Nelles at pp. 193 and 197; Miazga at para. 74.
Malice, defined
Inherent to the elements of a malicious prosecution case is the element of malice. In certain circumstances the malice element may be plain and obvious; however, malice can be demonstrated by showing that the proceeding was commenced illicitly and as was explained in St-Jacques v. Doyle, 2008 CanLII 9381 where it was said:
[8] Malice is established by showing that the actual motive was improper, or the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the defendant. The burden is on the plaintiff to show malice.
Lloyd v. Toronto (City) Police Services Board, O.J. No. 83 (S.C.J.) at paras.142 and 143.
[9] With respect to allegations of malice, a suit for malicious prosecution must be based on more than recklessness or gross negligence. The test for malicious prosecution requires that the plaintiff show that the actual motive was improper, or demonstrate that the prosecution can only be explained by imputing a wrong motive. Neither bald allegations of malice, nor inferences in the face of other explanations, nor assumption and innuendo will satisfy the elements of the test.
Malice is established by showing that the actual motive was improper, or the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the defendant.
St-Jacques v. Doyle, 2008 CanLII 9381
Additionally, malice may be established where a prosecutor continues a prosecution without reasonable or probable grounds to do so, such as when exculpatory or exhonerating evidence comes to the attention of the prosecutor and the evidence is ignored. Specifically, in the cases of Oniel v. Marks, 2001 CanLII 24091, as well as Folland v. Ontario, 2003 CanLII 52139, the Court of Appeal said:
[14] In Oniel v. Toronto (Metropolitan) Police Force, 2001 CanLII 24091 (ON CA), [2001] O.J. No. 90 (Quicklaw), 195 D.L.R. (4th) 59 (C.A.), leave to appeal to the Supreme Court dismissed at [2001] S.C.C.A. No. 121, this court held that continuing a prosecution in the absence of reasonable and probable grounds is capable of giving rise to an inference of malice. Borins J.A. wrote (at paras. 49-51):
Although the prosecutor may have reasonable and probable grounds to commence a prosecution, if the prosecutor obtains information which suggests that the person probably did not commit the offence, . . . the prosecutor lacks reasonable and probable grounds to continue the prosecution, and malice may be inferred. . . .
Continuing the prosecution in the absence of an honest belief in the appellant's guilt would be incompatible with securing the ends of justice, and malice could be inferred if the respondents continued the prosecution with reckless indifference to the truth . . . .
[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. ...
Conclusion
Proving that the state of mind of a prosecutor involved a malicious intent can be difficult as direct evidence of such is unlikely to exist; however, via evidence of bad faith, or evidence of a lack of good faith, proving the malicious intention is possible.
