Malicious Prosecution


The test for malicious prosecution is set out in Miazga v. Kvello Estate, 2009 SCC 51, [2009] 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;

·         This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice.

·         where the termination does not result from an adjudication on the merits, a live issue may arise whether the termination of the proceedings was “in favour” of the plaintiff: See Ferri v. Ontario (2007) 2007 ONCA 79 (CanLII), ONCA 79, [2007] OJ No. 397 per LaForme J.A., at paras. 50-58

 (3) there was an absence of reasonable and probable cause to commence the prosecution;

·         s. 108(10) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that it is for the trier of fact to determine whether there was reasonable and probable cause for instituting the prosecution.

·         prior judicial determinations made during criminal proceedings may support a finding by a civil court that there existed reasonable and probable cause for an impugned criminal prosecution, though they are not necessarily determinative.

 (4) the defendant's conduct in setting the criminal process in motion was fueled by malice.

·         malice cannot be inferred from a Crown Attorney’s decision to proceed with a prosecution in the absence of reasonable and probable cause; malice must be established by proof of an “improper purpose.”

·         a plaintiff must demonstrate on the totality of the evidence that the prosecutor deliberately intended to subvert or abuse the office of the Attorney General or the process of criminal justice such that he or she exceeded the boundaries of the office of the Attorney General.



Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca




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