Malicious Prosecution and the 'Scandal of the Century'

September 5, 2007

With the acquittal of Steven Truscott, the integrity of Canada's criminal justice system has once again come under heavy fire. If readers' comments here at The Court are any indication, many Canadians are not only deeply concerned with the plight of the falsely accused, but share a waning belief in the existence of effective criminal and civil law remedies once it has been acknowledged that a mistake has been made.

In a post dated August 20th, I explored the issue of malicious prosecution through the prism of a recent appeal application denied by the Supreme Court, and suggested that the Nelles test may be inadequate given the incredibly messy web of criminal and civil procedures that often form the foundation of a malicious prosecution case. Given that the SCC chose not to clarify the test at that opportunity, it should come as little surprise that this issue and the question of what legally constitutes malice has once again raised its ugly head.

On Wednesday Aug 29th articles in various Canadian media announced that embattled Saskatchewan Crown Prosecutor Matthew Miazga is seeking leave to appeal to the Supreme Court of Canada.

Readers may recall that Miazga was originally found liable in 2003 for maliciously prosecuting a Saskatoon family falsely accused of sexually abusing three foster children under their care. The case, which would eventually be labelled by the media as the 'Scandal of the Century', involved fabricated accusations by three siblings implicating their foster family in unspeakable acts of ritualized abuse involving group sex, torture and cannibalism during the 1990s.

While the staying of charges and the childrens' eventual recantations were a great relief to the Klassen family and their co-accuseds, in many ways the case represents an on-going trauma for everyone involved. In an 85 page decision, trial judge Justice Baynton found prosecutor Miazga, Saskatoon police officer Brian Dueck, and child therapist Carol Bunko-Ruys liable of maliciously prosecuting the criminal case. The province was required to pay $2.46 million in damages, but has held back $200,000 pending the outcome of appeals.

In the 2007 appeal by Miazga and Bunko-Ruys the Saskatchewan Court of Appeal applied the test set out in Nelles v. Ontario [1989] 2 S.C.R. 170. It should be noted that in order to succeed in demonstrating malicious prosecution, four elements must be met: (a) the impugned prosecution must have been initiated or continued by the defendant; (b) the prosecution must have terminated in favour of plaintiff; (c) the prosecution must have been initiated by the defendant without reasonable and probable cause; and (d) the defendant must have acted out of malice or for a primary purpose other than that of carrying the law into effect.

In a 2-1 decision, the SCA opted to allow the appeal of Bunko-Rays and dismiss that of Miazga. Speaking for the majority, Justice of Appeal Sherstobitoff determined that the trial judge had made a palpable and overriding error in determining Bunko-Ruys' role in the laying of the criminal charges. Specifically, Justice Sherstobitoff concluded that it was police officer Dueck, with the advice of Miazga, who made the decision to lay the charges and that he had done so without any input from Bunko-Ruys.

As for Miazga, the Court of Appeal found that although a lack of reasonable and probable ground alone did not give rise to an inference of malicious prosecution, Miazga's actions were, in fact, malicious insofar as he neither truly believed that the children were credible, nor that the accused were guilty.

According to journalist Janet French of the Saskatoon StarPheonix, Miazga's SCC application for leave submits that Crown prosecutors need national guidance on what defines malice in a prosecution, and whether a prosecutor must believe an accused is "probably guilty" in order to proceed with criminal charges.