In a recent decision, Samaroo v. Canada Revenue Agency (2018), the Supreme Court of B.C. awarded a husband and wife almost $1.4 Million in damages after they accused the Canada Revenue Agency (CRA) and the Crown of malicious prosecution. The plaintiffs are co-owners of several business on Vancouver Island and were aggressively pursued by the CRA and then charged with multiple counts of tax evasion for allegedly skimming $1.7 Million from their businesses. In 2010, a B.C. Court found the couple not guilty on all charges and the judge concluded that the CRA used ‘voodoo accounting’ evidence to advance its case. The couple subsequently sued the Crown Prosecutor and a senior investigator for the CRA for malicious prosecution.
In a previous trial, Miazga v. Kvello Estate (2009), the Supreme Court of Canada defined malicious prosecution as “an intentional tort designed to provide redress for losses flowing from an unjustified prosecution”.
Miazga is a case involving foster parents and other family members who were falsely accused of sexual abuse and satanic rituals by three foster children who were siblings. On the basis of the childrens’ allegations, the Crown prosecuted several adult defendants on numerous counts of sexual assault, but the Supreme Court of Canada stayed the charges. Twelve defendants subsequently sued the Crown prosecutor, police officer, child therapist and their supervisors for malicious prosecution, and during the trial, the children recanted their allegations. In fact, it was later revealed that it was the older brother who had been abusing his sisters and forcing them into participating in sexual acts. Tragically, the defendants had already suffered years of loss of reputation, scorn and mental anguish during the long period of prosecution. And, one can easily imagine that some, if not all, of the defendants felt their lives were ruined by the event.
An innocent person who suffers through the process of being charged and tried of a criminal offence until their charges are finally dismissed at trial, may logically question whether they can hold the prosecution, police and others responsible for malicious prosecution against them. A person found ‘not guilty’ of a crime may, in fact, bring charges of malicious prosecution against police, the Crown, and even against members of the public. However, the standard of proof on the charge of malicious prosecution is very high.
Prior to the Supreme Court decision in a landmark case, Nelles v. Ontario (1989), the Crown had absolute immunity from lawsuits for malicious prosecution. In Nelles, the Supreme Court stated that the Crown should not be immune from charges of malicious prosecution because the criminal prosecution system suffers when abuses are committed and then protected from civil liability. Nelles involved a woman who had been charged with the murder of four infants but all charges were dismissed in the preliminary inquiry. The woman subsequently brought an action against the Crown, several police officers and Ontario’s Attorney General alleging that the charges and prosecution were motivated by malice. Charges were dropped against police and dismissed against the Crown, but the Supreme Court decided that Nelles could continue her action against the Attorney General.
In order for a malicious prosecution charge to be successful, the plaintiff must prove the following required elements.
- The proceeding must have been initiated by the defendant;
- The proceeding must have concluded in favour of the plaintiff;
- There was an absence of reasonable and probable cause; and
- Malice, where there was a primary purpose other than that of carrying out the law.
The element of malice, as defined in Nelles, may include any ‘improper purpose’, including a spirit of vengeance, spite or ill-will, and/or intent to gain a private collateral advantage. However, malicious prosecution is held to a high standard of proof and cannot be established in cases of an error in judgement, incompetence or even, professional negligence. Rather, malicious prosecution requires proof that the prosecutor or another defendant was wilfully acting with improper purpose or with a motive that abuses the intended purpose of the criminal justice system.
In the 2018 Samaroo trial, the Court did not believe the Crown prosecutor had abused his prosecutorial power or acted maliciously and therefore, there were insufficient grounds to support the charge of malicious prosecution against the Crown prosecutor. However, the judge did find proof of malice on the part of the senior CRA investigator as he “acted deliberately to subvert and abuse his office…by supressing evidence and attributing evidence to witnesses that was not accurate”. The CRA investigator decided from the beginning that the defendants were guilty and he set out to convict them regardless of the absence of substantiating and objective evidence. Because the Canada Revenue Agency is deemed to be vicariously liable for the conduct of its employees, the CRA was liable for the damages arising from the finding of malicious prosecution against one of their investigators.
Malicious prosecution against the Crown is held to a high standard of proof to ensure that Crown Attorneys and the Attorney General are not impeded in the proper execution of their public duties. In R. v. Power (1994), it was noted that the concept of a ‘duty of care’ between the Crown and an accused person is against the principles of prosecutorial discretion and the foundation of criminal law enforcement. And, as stated in Scott v. Ontario (2002), every person accused of a criminal offence must endure the consequences of their arrest and incarceration until the trial, which includes loss of their job, reputation, freedom and opportunities, as well as the cost of defence. This applies regardless whether a defendant is found innocent or guilty of the charges.
Drainville v. Vilchez (2014) is an unusual case because it involved a lawsuit alleging malicious prosecution against a member of the public, a fuel truck driver, who complained falsely to police, and his complaints resulted in criminal charges of mischief and dangerous driving being brought against the accused. The accused was acquitted of all criminal charges and he subsequently commenced a lawsuit against the complainant. The criminal case initially arose after the accused drove his vehicle into a gas station to fill up his tires adjacent to where the fuel truck driver had placed cones to mark where he was refuelling. The accused thought he was in an area free of cones but the truck driver waved him over and put his legs against the accused’s vehicle. The truck driver later contacted police and gave a false report, alleging that the accused intentionally drove out of his way to hit him, which led police to bring criminal charges against the accused.
In Drainville, the judge found in favour of the plaintiff and ordered the defendant (the fuel truck driver) to pay pecuniary damages for the plaintiff’s legal costs as well as other losses he incurred. The judge in this case applied the 4-part analysis in determining whether the case met the requirements for malicious prosecution and concluded that all four criteria were met in this case, including a finding that the defendant was vindictive and motivated by malice.
The prosecution of innocent people has a devastating effect on the accused and their families. Nevertheless, it is difficult to hold Crown prosecutors legally accountable for bringing charges and prosecuting innocent parties unless the Crown acted with malicious intent. The best outcome a defendant typically seeks, and has a right to expect, is a zealous and skilled defence to result in dismissal of all charges so that falsely accused persons can return to their normal lives.