Miazga v. Kvello Estate
Encyclopedia
Miazga v. Kvello Estate, 2009 SCC 51 is a leading decision of the Supreme Court of Canada
on how the tort
of malicious prosecution
applies to Crown attorney
s and other public prosecutors. Specifically, the court held that there is no requirement for a public prosecutor to have a subjective belief that an accused person is actually guilty. Nor can there be a presumption of malice from a lack of reasonable and probable grounds.
was asked to give pre-charge advice to police officers investigating a case of child abuse. Specifically, three siblings were making serious and bizarre claims of sexual abuse against their biological parents, their mother's boyfriend, their foster parents, Anita and Dale Klassen, and members of the Klassens' extended family. Eventually, the Klassens and their family were charged with approximately 70 counts of sexual assault. Miazga remained assigned as the trial prosecutor.
During the course of the trial proceedings, Miazga came to have some concerns about the children's credibility. He consulted with his head office, who advised him to continue the prosecution if he believed the essential elements of the children's story.
On December 18, 1992, the children's biological parents were found guilty of sexual assault against the children. The trial judge went on to urge that the children not be made to endure another criminal trial. As a result of the judge's comments, as well as Miazga's increasing concern about the children's credibility, he negotiated a plea bargain
with one of the Klassen's extended family, and stayed
the remaining charges.
In 1995, the Saskatchewan Court of Appeal upheld the convictions against the biological parents. In 1996, the Supreme Court of Canada allowed an appeal based on the problems with the children's evidence.
In 2003, the Court of Queen's Bench for Saskatchewan
found Miazga liable for malicious prosecution, criticizing his role in advising the police, his conduct during the criminal proceedings, and his failure to express any remorse and lack of concern about the effect the prosecution had. Specifically, the trial judge noted that Miazga never testified whether he believed the children, and even if did believe the children it would not have been reasonable. In addition, the lack of reasonable and probable grounds created a presumption that Miazga was acting maliciously.
However, the court was split over whether Miazga was required to have a subjective belief in the guilt of the accused, and whether a lack of reasonable and probable grounds creates an inference of malice. Ultimately, the majority upheld the trial judge's decision.
The court upheld its prior decisions that there are four required elements for the tort of malicious prosecution:
The Court found that "reasonable and probable grounds" is concerned with the Crown's professional, not personal opinion about the merits of the case. While a lack of a subjective belief of the plaintiff's guilt may be enough to meet the third requirement when the defendant is a private prosecutor, it is inconsistent with the role of a public prosecutor in upholding the public interest.
The Court also noted that in reviewing whether there were reasonable and probable grounds, the court should only consider the facts available to the prosecutor at the time the decision was made, not the facts that later came out.
In the case at bar, the Court found that there was no need to consider Miazga's lack of subjective belief that the plaintiffs were guilty. The court also found that even if Miazga had testified that he believed the plaintiffs were guilty, it would not have been outright unreasonable given the facts known to Miazga at the time.
The Court also found that Miazga was allowed to put reliance on the court's original findings of guilt to support that he had reasonable and probable grounds.
The Court also found that while the lack of a subjective belief of reasonable and probable grounds is a relevant factor in determining malice, it does not automatically equate with malice. It may be the result of inexperience, incompetence, negligence, or gross negligence – none of which are the same as malicious intent.
The Court noted that historically it may have made sense to infer malice when a private prosecutor had no reasonable or probable grounds – otherwise, there would have been no reason to prosecute the case. However, public prosecutors may differ whether they personally believe there are reasonable and probable grounds, but may proceed anyway for reasons consistent with their role as a public prosecutor. Therefore, the Court found that malice could not be inferred when public prosecutors do not have reasonable and probable grounds.
Since the Court of Appeal was unanimous there was no direct evidence of malicious intent of the part of Miazga, and the majority only found evidence of malice from the inference, the Supreme Court found that there was no evidence to support Miazga had any malicious intent.
As a result, the Supreme Court of Canada allowed the appeal and dismissed the action against Miazga.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on how the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
applies to Crown attorney
Crown attorney
Crown Attorneys or Crown Counsel are the prosecutors in the legal system of Canada.Crown Attorneys represent the Crown and act as prosecutor in proceedings under the Criminal Code of Canada...
s and other public prosecutors. Specifically, the court held that there is no requirement for a public prosecutor to have a subjective belief that an accused person is actually guilty. Nor can there be a presumption of malice from a lack of reasonable and probable grounds.
Criminal proceedings
In 1991, Matthew Miazga, a Crown prosecutor in SaskatchewanSaskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....
was asked to give pre-charge advice to police officers investigating a case of child abuse. Specifically, three siblings were making serious and bizarre claims of sexual abuse against their biological parents, their mother's boyfriend, their foster parents, Anita and Dale Klassen, and members of the Klassens' extended family. Eventually, the Klassens and their family were charged with approximately 70 counts of sexual assault. Miazga remained assigned as the trial prosecutor.
During the course of the trial proceedings, Miazga came to have some concerns about the children's credibility. He consulted with his head office, who advised him to continue the prosecution if he believed the essential elements of the children's story.
On December 18, 1992, the children's biological parents were found guilty of sexual assault against the children. The trial judge went on to urge that the children not be made to endure another criminal trial. As a result of the judge's comments, as well as Miazga's increasing concern about the children's credibility, he negotiated a plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
with one of the Klassen's extended family, and stayed
Stay of proceedings
A stay of proceedings is a ruling by the court in civil and criminal procedure, halting further legal process in a trial. The court can subsequently lift the stay and resume proceedings. However, a stay is sometimes used as a device to postpone proceedings indefinitely.-United Kingdom:In United...
the remaining charges.
In 1995, the Saskatchewan Court of Appeal upheld the convictions against the biological parents. In 1996, the Supreme Court of Canada allowed an appeal based on the problems with the children's evidence.
Malicious prosecution trial
Some years after the stay of proceedings, all three children recanted their allegations. Miazga, along with other members of the investigation, were sued by the Klassens and their extended family members (other than the individual who pled guilty) for malicious prosecution.In 2003, the Court of Queen's Bench for Saskatchewan
Court of Queen's Bench for Saskatchewan
The Court of Queen's Bench of Saskatchewan is the superior trial court for the Canadian province of Saskatchewan. The Court hears civil and criminal law cases. It is a court of inherent jurisdiction and there is no monetary limit on the claims which it may hear. It also has original jurisdiction...
found Miazga liable for malicious prosecution, criticizing his role in advising the police, his conduct during the criminal proceedings, and his failure to express any remorse and lack of concern about the effect the prosecution had. Specifically, the trial judge noted that Miazga never testified whether he believed the children, and even if did believe the children it would not have been reasonable. In addition, the lack of reasonable and probable grounds created a presumption that Miazga was acting maliciously.
Malicious prosecution appeal
In 2007, the Saskatchewan Court of Appeal released a split decision regarding Miazga's appeal. All three judges agreed that the trial judge erred in finding that there were strong indications that Miazga was acting maliciously. Miazga had a more limited role than the police during the investigation, and Miazga immediately consented to the Klassens' release on bail at the first opportunity. Whether or not Miazga was over-protective of the children during the trial, it was the trial judge's role to balance the interests of the various parties, not the prosecutor's, and would not only be consistent with malice. Finally, Miazga's failure to apologize did not create an inference of malice, since Miazga was never asked whether he was remorseful.However, the court was split over whether Miazga was required to have a subjective belief in the guilt of the accused, and whether a lack of reasonable and probable grounds creates an inference of malice. Ultimately, the majority upheld the trial judge's decision.
Reasons of the court
The unanimous decision of the court was written by Charron J.Louise Charron
Louise Charron is a Canadian jurist. She was appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge...
The court upheld its prior decisions that there are four required elements for the tort of malicious prosecution:
- The prosecution must be initiated by the defendant.
- The prosecution must be terminated in the plaintiff's favour.
- There was a lack of reasonable and probable grounds to commence or continue the prosecution.
- The defendant was motivated to commence or continue to the prosecution due to malice.
Terminated in favour of the plaintiff
Although there was some debate in the lower courts about whether the plea bargain affected the second element, it was not a live issue before the Supreme Court.Reasonable and probable grounds
The Court recognized that "reasonable and probable grounds" is a lower standard than "reasonable prospect of conviction" (which is the standard used in most Crown offices), but noted that it remained appropriate.The Court found that "reasonable and probable grounds" is concerned with the Crown's professional, not personal opinion about the merits of the case. While a lack of a subjective belief of the plaintiff's guilt may be enough to meet the third requirement when the defendant is a private prosecutor, it is inconsistent with the role of a public prosecutor in upholding the public interest.
The Court also noted that in reviewing whether there were reasonable and probable grounds, the court should only consider the facts available to the prosecutor at the time the decision was made, not the facts that later came out.
In the case at bar, the Court found that there was no need to consider Miazga's lack of subjective belief that the plaintiffs were guilty. The court also found that even if Miazga had testified that he believed the plaintiffs were guilty, it would not have been outright unreasonable given the facts known to Miazga at the time.
The Court also found that Miazga was allowed to put reliance on the court's original findings of guilt to support that he had reasonable and probable grounds.
Malicious intent
Malicious intent requires that a Crown was acting pursuant to an improper purpose that was inconsistent with the office of the Crown attorney. An honest but mistaken belief that there were reasonable and probable grounds does not support a finding of malicious intent.The Court also found that while the lack of a subjective belief of reasonable and probable grounds is a relevant factor in determining malice, it does not automatically equate with malice. It may be the result of inexperience, incompetence, negligence, or gross negligence – none of which are the same as malicious intent.
The Court noted that historically it may have made sense to infer malice when a private prosecutor had no reasonable or probable grounds – otherwise, there would have been no reason to prosecute the case. However, public prosecutors may differ whether they personally believe there are reasonable and probable grounds, but may proceed anyway for reasons consistent with their role as a public prosecutor. Therefore, the Court found that malice could not be inferred when public prosecutors do not have reasonable and probable grounds.
Since the Court of Appeal was unanimous there was no direct evidence of malicious intent of the part of Miazga, and the majority only found evidence of malice from the inference, the Supreme Court found that there was no evidence to support Miazga had any malicious intent.
As a result, the Supreme Court of Canada allowed the appeal and dismissed the action against Miazga.
External links
- Full text of Miazga v. Kvello Estate - Supreme Court of Canada
- Full text of Kvello v. Miazga - Saskatchewan Court of Appeal
- Full text of K. v. Miazga - Saskatchewan Queen's Bench