Documentation:Torts/Malicious prosecution

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Malicious prosecution

The tort of malicious prosecution serves to compensate plaintiffs who have been wrongfully prosecuted.[1] To succeed in a claim in malicious prosecution, the prior legal proceedings must have terminated in favour of the plaintiff and been initiated by the defendant with malice and absent reasonable or probable cause.[2] While the elements of the tort remain the same for claims against private and Crown defendants, claimants face more onerous evidentiary requirements for claims against Crown defendants.[3][4] Canada has adopted a more stringent standard for malicious prosecution claims against Crown defendants so as to balance the constitutionally entrenched principled of Crown independence with the rights of plaintiffs to seek redress for malicious prosecution.[5][6][7][8]

Elements of malicious prosecution

The Supreme Court of Canada set out the elements of malicious prosecution, in Nelles v. Ontario, as follows:

Elements of malicious prosecution[2]
1. [T]he proceedings must have been initiated by the defendant;
2. [T]he proceedings must have been terminated in favour of the plaintiff;
3. [T]he absence of reasonable and probable cause;
4. [M]alice, or a primary purpose other than that of carrying the law into effect.

Initiated by the defendant

What qualifies as malicious prosecution?
Watch this brief video, where Aaron Belzer from Burnham Law breaks down the elements of the malicious prosecution tort.[9]

Generally the police officer laying charges against the plaintiff will be treated as the party initiating the proceedings.[10] However, there a principled circumstances in which a complainant will be treated as the party whom initiated the prosecution.[10] Simmons JA detailed these circumstances in Kefeli v. Centennial College of Applied Arts & Technology:[10]

• the complainant desired and intended that the plaintiff be prosecuted;

• the facts were so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment; and

• the complainant procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both.

The Ontario Court of Appeal, in McNeil v. Brewers Retail Inc., clarified that a defendant will satisfy the initiation element when they have knowingly withheld exculpatory information from the authorities and the plaintiff would not have been charged "but for" the withholding of said information.[11] Regarding the term "desired and intended that the plaintiff be prosecuted", Canadian courts have adopted the test set out in the House of Lords judgment, Martin v. Watson, which states:[12][13]

Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant ... it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and ... the proper view of the matter is that the prosecution has been procured by the complainant.

Terminated in favour of the plaintiff

The Supreme Court of Canada, in Kvello v. Miazga, stated that this element will be satisfied by a clear withdrawal of the charges level against the plaintiff.[14] This element may be satisfied no matter the fashion in which the proceedings concluded, whether acquittal, stay, etc., as long as they were concluded in favour of the plaintiff.[15]

Absence of reasonable and probable cause

In some cases, legal proceedings may terminate in favour of the plaintiff due to evidentiary reasons, which has no bearing on whether the prosecution was improperly initiated.[16] As such, this element serves to further limit the scope of plaintiff to whom a malicious prosecution action is available to.[16]

The reasonable and probably cause element encompasses both a subjective belief by the defendant that reasonable and probable grounds exist, in addition to that belief being objectively reasonable in the circumstances.[17] The Supreme Court of Canada, in Nelles v. Ontario, adopted the following definition of reasonable and probable cause:[18]

Reasonable and probable cause has been defined as “an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed” [Emphasis added.]

In the context of Crown defendants, their professional, not personal, opinion is relevant to the question of whether reasonable and probable cause exists.[19] As such, the prosecutor's subjective belief of the plaintiff's guilt is not considered as part of this element.[19] The determination of whether there was an absence of reasonable and probable cause will be determined solely on objective grounds in malcious prosecution actions against Crown defendants.[20] A Crown defendant's subjective belief may be considered as evidence by the court in determining whether the prosecution was commenced with malice.[21]

Malice

Private defendants

The Supreme Court of Canada, in Nelles v. Ontario, stated that malice refers to an "improper purpose" for commencing a proceeding.[22] For private parties, the Court stated that malice may be inferred from the surrounding circumstances and the absence of reasonable and probable grounds alone.[23]

Crown defendants

The Supreme Court of Canada clarified, in Kvello v. Miazga, that, while the elements of malicious prosecution remain the same whether the action is commenced against a private defendant or a Crown defendant, the elements must be modified as necessary when dealing with Crown defendants.[24] The Court in Miazga stated that “the contours of the tort … must be informed by the core constitutional principles governing that office.”[24] The upshot of this is that courts will adopt a very high threshold for the tort when the action is commenced against a public prosecutor.[3] The same inference made in the case of private defendants does not apply to Crown prosecution, where there generally is no pre-existing relationship between the defendant and plaintiff, as is often the case with malicious prosecution between private parties.[4] Further, Crown prosecutors, in determining whether to prosecute, are exercising an important public function as a "minister of justice".[4] As such, the absence of reasonable and probable grounds will not be determinative towards a finding of malice in malicious prosecution actions againta Crown prosecutors.[25]

Instead, an improper purpose must be demonstrated, as to ensure that Crown defendants are not hindered in the exercise of their prosecutorial discretion and execution of their public duties.[26] The Supreme Court of Canada, in Nelles, explained that malice must be demonstrated by way of an improper purpose so as to distinguish between Crown defendants who misuse and abuse their office versus those who are merely incompetent, lazy, or reckless in the exercise of their prosecutorial discretion.[27] The Court in Miazga stated that malice will only be proven against a Crown defendant if the court is satisfied that the defendant commenced the prosecution with a purpose inconsistent with their role as a "minister of justice" and deliberately intended to subvert or abuse their office.[28]

“Lawfare”, big money divorces, and the impact of the new tort of malicious prosecution of civil proceedings
In this episode of the 4 New Square Chambers Podcast, Paul Mitchell KC & Tom Shepherd describe the tort of malicious prosecution and its newfound use in the context of divorce proceedings.[29]

Striking a balance between the administration of justice and the rights of the plaintiff in malicious prosecution actions against Crown defendants

In Canada

Under the constitutionally entrenched principle of Crown independence, decisions made within prosecutorial discretion are generally immune from judicial review, saving for abuses of process.[5]

In Nelles v. Ontario, the Supreme Court of Canada held that the Attorney General and Crown prosecutors are not immune from liability for malicious prosecution.[6] However, the Supreme Court of Canada later clarified, in Kvello v. Miazga, that the public law principles of Crown independence and prosecutorial discretion are relevant to the tort of malicious prosecution insofar as they establish a more stringent threshold for Crown liability.[6] As such, a malicious prosecution action is not to be treated as "after-the-fact" judicial review of prosecutorial discretion, and will only be available when the prosecutors action are motivated by malice.[7] The Supreme Court of Canada, in Proulx v. Quebec (AG), summarized the justification for setting a higher standard for making out malicious prosecution against a Crown prosecutor:[8]

Under our criminal justice system, prosecutors are vested with extensive discretion and decision-making authority to carry out their functions.  Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess a prosecutor’s judgment calls when assessing Crown liability for prosecutorial misconduct.  Nelles ... affirmed unequivocally the public interest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances.  [Emphasis added.]

In the US

In Imbler v. Pachtman, the US Supreme Court granted prosecutors absolutely immune from actions for malicious prosecution in their professional capacity when exercising prosecutorial functions "of a quasi-judicial or advocatory nature".[30] The Court in Imbler canvassed various policy concerns in reaching their decision to grant prosecutors absolute immunity, ultimately deciding that granting absolute immunity to prosecutors will help uphold public confidence in their office and ensure they carry out their duties without diversion.[31] While the Supreme Court of Canada considered the Imbler judgment in determining whether to grant prosecutors absolute immunity in Canada, the Court ultimately decided not to follow the approach in Imbler.[32]

Tort of malicious prosecution of civil proceedings in the UK

In 2016, the UK Supreme Court extended the tort of malicious prosecution to the initiation of civil litigation in Willers v. Joyce.[33][34] The Court canvassed several concerns that may arise from recognizing malicious prosecution in the context of civil proceedings, such as the fact that the new tort may deter people from pursuing valid legal claims or jeopardize the finality of litigation.[34] However, the majority ultimately did not view any existing cause of action as providing an adequate remedy to the claimant in that case, and as such was prompted to extend the existing tort of malicious prosecution to provide adequate redress.[33][35] Academic commentators have since criticized this extension of malicious prosecution, stating that this extension is incoherent, not rooted in precedent and policy, and has not resulted in meaningful change for wrongfully sued plaintiffs.[35][36]

Discussion questions

  • Why should it be more difficult to prove malicious prosecution claims against Crown prosecutors as compared to private litigants? Does the rule in Miazga undermine the Diceyan principle of equality under law (§1.1.1)?
  • What risks might arise from recognising malicious prosecution claims in respect of omissions, such as intentionally withholding exculpatory information from the police?
  • Should Canadian courts extend the tort of malicious prosecution to the initiation of civil proceedings?


  1. ↑ Fitzpatrick v. Orwin, 2012 ONSC 3492 (§10.11.2) at para 98, citing Kvello v. Miazga, 2009 SCC 51 at para 56.
  2. ↑ 2.0 2.1 Fitzpatrick v. Orwin, 2012 ONSC 3492 (§10.11.2) at para 98, citing Nelles v. Ontario, 1989 CanLII 77 (SCC).
  3. ↑ 3.0 3.1 Kvello v. Miazga, 2009 SCC 51 at para 44, citing Nelles v. Ontario, 1989 CanLII 77 (SCC).
  4. ↑ 4.0 4.1 4.2 Pate v. Galway-Cavendish (Township), 2011 ONCA 329 (§10.11.1) at para 33.
  5. ↑ 5.0 5.1 Kvello v. Miazga, 2009 SCC 51 at para 6, citing Krieger v. Law Society of Alberta, 2002 SCC 65 at paras 32, 46.
  6. ↑ 6.0 6.1 6.2 Kvello v. Miazga, 2009 SCC 51 at para 5, citing Nelles v. Ontario, 1989 CanLII 77 (SCC).
  7. ↑ 7.0 7.1 Kvello v. Miazga, 2009 SCC 51 at para 7, citing Nelles v. Ontario, 1989 CanLII 77 (SCC) at 199.
  8. ↑ 8.0 8.1 Kvello v. Miazga, 2009 SCC 51 at para 50, citing Proulx v. Quebec (AG), 2001 SCC 66 at para 4.
  9. ↑ Burnham Law (18 Apr 2022). "What Qualifies as Malicious Prosecution?". Youtube.
  10. ↑ 10.0 10.1 10.2 Fitzpatrick v. Orwin, 2012 ONSC 3492 (§10.11.2) at para 98, citing Kefeli v. Centennial College of Applied Arts & Technology, 2002 CanLII (ONCA) at para 24.
  11. ↑ Pate v. Galway-Cavendish (Township), 2011 ONCA 329 (§10.11.1) at para 47, citing McNeil v. Brewers Retail Inc., 2008 ONCA 405 at para 52.
  12. ↑ Fitzpatrick v. Orwin, 2012 ONSC 3492 (§10.11.2) at para 98, citing Martin v. Watson, [1995] UKHL 25 (BAILII) at 567–569.
  13. ↑ Fitzpatrick v. Orwin, 2012 ONSC 3492 (§10.11.2) at para 98, citing Wood v. Kennedy, 1998 CanLII 14927 (ONSC) at para 51.
  14. ↑ Fitzpatrick v. Orwin, 2012 ONSC 3492 (§10.11.2) at para 109, citing Kvello v. Miazga, 2009 SCC 51 at para 54.
  15. ↑ Kvello v. Miazga, 2009 SCC 51 at para 54.
  16. ↑ 16.0 16.1 Kvello v. Miazga, 2009 SCC 51 at para 55.
  17. ↑ Kvello v. Miazga, 2009 SCC 51 at para 58, citing Nelles v. Ontario, 1989 CanLII 77 (SCC) at 193.
  18. ↑ Nelles v. Ontario, 1989 CanLII 77 (SCC) at 193, citing Hicks v. Faulkner, [1881-5] All ER Rep 187 (CA), at 171.
  19. ↑ 19.0 19.1 Kvello v. Miazga, 2009 SCC 51 at para 69.
  20. ↑ Kvello v. Miazga, 2009 SCC 51 at para 71.
  21. ↑ Kvello v. Miazga, 2009 SCC 51 at paras 79–81.
  22. ↑ Fitzpatrick v. Orwin, 2012 ONSC 3492 (§10.11.2) at para 98, citing Nelles v. Ontario, 1989 CanLII 77 (SCC) at 193–194.
  23. ↑ Pate v. Galway-Cavendish (Township), 2011 ONCA 329 (§10.11.1) at para 32, citing Kvello v. Miazga, 2009 SCC 51 at para 87.
  24. ↑ 24.0 24.1 Pate v. Galway-Cavendish (Township), 2011 ONCA 329 (§10.11.1) at para 31, citing Kvello v. Miazga, 2009 SCC 51 at para 44.
  25. ↑ Pate v. Galway-Cavendish (Township), 2011 ONCA 329 (§10.11.1) at para 34, citing Kvello v. Miazga, 2009 SCC 51 at para 88.
  26. ↑ Pate v. Galway-Cavendish (Township), 2011 ONCA 329 (§10.11.1) at para 35, citing Kvello v. Miazga, 2009 SCC 51 at para 85.
  27. ↑ Kvello v. Miazga, 2009 SCC 51 at para 85, citing Nelles v. Ontario, 1989 CanLII 77 (SCC) at 196–197.
  28. ↑ Pate v. Galway-Cavendish (Township), 2011 ONCA 329 (§10.11.1) at para 36, citing Kvello v. Miazga, 2009 SCC 51 at para 89.
  29. ↑ 4 New Square Chambers Podcast, "'Lawfare,’ Big Money Divorces, and the Impact of the New Tort of Malicious Prosecution of Civil Proceedings” (16 Jun 2020).
  30. ↑ Nelles v. Ontario, 1989 CanLII 77 (SCC) at 181–182, citing Imbler v. Pachtman, 424 US 409 (1976).
  31. ↑ Nelles v. Ontario, 1989 CanLII 77 (SCC) at 182, citing Imbler v. Pachtman, 424 US 409 (1976).
  32. ↑ Nelles v. Ontario, 1989 CanLII 77 (SCC).
  33. ↑ 33.0 33.1 Willers v. Joyce, [2016] UKSC 44.
  34. ↑ 34.0 34.1 Goudkamp, James (2017). "A Tort is Born: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings". New LJ. 7753: 11.
  35. ↑ 35.0 35.1 Bonython, Wendy; Farrar, John (2022). "Principle and Policy in Malicious Prosecution". Bond L Rev. 34 (3): 192–193.
  36. ↑ Mulheron, Rachael (2022). "The Tort of Malicious Prosecution of Civil Proceedings: A Critique and a Proposal". Legal Studies. 42: 488–489.
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