Kvello et al. v. Miazga et al., (2009) 395 N.R. 115 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 12, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 395 N.R. 115 (SCC);2009 SCC 51

Kvello v. Miazga (2009), 395 N.R. 115 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. NO.019

Matthew Miazga (appellant) v. Estate of Dennis Kvello (by his personal representative, Diane Kvello), Diane Kvello, S.K.1, S.K.2, Kari Klassen, Richard Klassen, Pamela Sharpe, Estate of Marie Klassen (by her personal representative, Peter Dale Klassen), John Klassen, Myrna Klassen, Peter Dale Klassen and Anita Janine Klassen (respondents) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General for Saskatchewan, Attorney General of Alberta, Director of Criminal and Penal Prosecutions of Quebec, Canadian Association of Crown Counsel, Association in Defence of the Wrongly Convicted, Criminal Lawyers Association (Ontario) and Canadian Civil Liberties Association (intervenors)

(32208; 2009 SCC 51; 2009 CSC 51)

Indexed As: Kvello et al. v. Miazga et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

November 6, 2009.

Summary:

The plaintiffs were charged with sexual assault against various foster children. The charges were eventually stayed. The plaintiffs sued numerous defendants involved in the conduct of the prosecution for malicious prosecution, breach of their Charter rights, abuse of power, false imprisonment, negligence and conspiracy to injure. Two defendants (Miazga and Hansen) counterclaimed against one of the plaintiffs (Richard Klassen) for defamation. The issues of liability and quantum of damages were severed. At the conclusion of the plaintiffs' case, the defendants brought non-suit motions to dismiss the various causes of action.

The Saskatchewan Court of Queen's Bench, in a decision reported at 242 Sask.R. 19, allowed the motion in part. The court allowed the motion respecting the defendant estate of Richard Quinney. The court also allowed the motion against all the defendants respecting the false imprisonment claim. The trial continued.

The Saskatchewan Court of Queen's Bench, in a decision reported at 244 Sask.R. 1, allowed the action for malicious prosecution against the defendants Miazga, Dueck and Bunko- Ruys. The action for malicious prosecution was dismissed against the defendant Hansen. The court dismissed the plaintiffs' action for breach of their Charter rights, abuse of power, negligence and conspiracy to injure as they were collateral causes of action and therefore subsumed within the malicious prosecution action. The court dismissed the defendants Miazga and Hansen's counterclaim. Miazga and Bunko-Ruys appealed the finding of liability against them for malicious prosecution.

The Saskatchewan Court of Appeal, Vancise, J.A., dissenting in part, in a decision reported at 293 Sask.R. 187; 397 W.A.C. 187, dismissed Miazga's appeal but allowed Bunko-Ruys' appeal. Miazga appealed.

The Supreme Court of Canada allowed the appeal and dismissed the action.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Barristers and Solicitors - Topic 1804

The prosecutor - Standard of conduct (incl. misconduct) - The Supreme Court of Canada stated that "[i]n exercising their discretion to prosecute, Crown prosecutors perform a function inherent in the office of the Attorney General that brings the principle of independence into play. Its fundamental importance lies, not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as 'ministers of justice' ... That said, the general rule of judicial non-intervention in the prosecutorial exercise is not absolute ... Thus, the public law doctrine of abuse of process and the tort of malicious prosecution may be seen as two sides of the same coin: both provide remedies when a Crown prosecutor's actions are so egregious that they take the prosecutor outside his or her proper role as minister of justice, such that the general rule of judicial non-intervention with Crown discretion is no longer justified. Both abuse of process and malicious prosecution have been narrowly crafted, employing stringent tests, to ensure that liability will attach in only the most exceptional circumstances, so that Crown discretion remains intact." - See paragraphs 47 to 51.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See Barristers and Solicitors - Topic 1804 ].

Torts - Topic 6151

Abuse of legal procedure - Malicious prosecution - General - The Supreme Court of Canada stated that "[g]iven that the tort of malicious prosecution predates the development of our contemporary system of public prosecutions, courts must take care not to simply transpose the principles established in suits between private parties to cases involving Crown defendants without necessary modification. While the elements of the four-part test for malicious prosecution are identical no matter the parties, the contours of the tort in an action against the Attorney General or his agents must be informed by the core constitutional principles governing that office." - See paragraph 44.

Torts - Topic 6151

Abuse of legal procedure - Malicious prosecution - General - [See Barristers and Solicitors - Topic 1804 ].

Torts - Topic 6154

Abuse of legal procedure - Malicious prosecution - Malice - General - The Supreme Court of Canada stated that "... the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff's case for malicious prosecution, regardless of whether the defendant is a private or public actor. Malicious prosecution, as the label implies, is an intentional tort that requires proof that the defendant's conduct in setting the criminal process in motion was fuelled by malice. The malice requirement is the key to striking the balance that the tort was designed to maintain: between society's interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect." - See paragraph 56.

Torts - Topic 6154

Abuse of legal procedure - Malicious prosecution - Malice - General - The Supreme Court of Canada stated that the malice element of the test for malicious prosecution considered a defendant prosecutor's mental state in respect of the prosecution at issue - Malice was a question of fact, requiring evidence that the prosecutor was impelled by an "improper purpose" - In order to prove malice, a plaintiff had to bring evidence that the defendant Crown was acting pursuant to an improper purpose inconsistent with the office of the Crown attorney - In deciding whether to initiate or continue a prosecution, the prosecutor had to assess the legal strength of the case against the accused - The prosecutor should invoke the criminal process only where he or she believed, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law - If the court concluded that the prosecutor initiated or continued the prosecution based on an honest, albeit mistaken, professional belief that reasonable and probable cause did in fact exist, he or she would have acted for the proper purpose of carrying the law into effect and the action had to fail - See paragraphs 78 and 79.

Torts - Topic 6154

Abuse of legal procedure - Malicious prosecution - Malice - General - The Supreme Court of Canada stated that "... a demonstrable 'improper purpose' is the key to maintaining the balance struck in ... [Nelles v. Ontario et al. (S.C.C.)] between the need to ensure that the Attorney General and Crown prosecutors will not be hindered in the proper execution of their important public duties and the need to provide a remedy to individuals who have been wrongly and maliciously prosecuted. By requiring proof of an improper purpose, the malice element of the tort of malicious prosecution ensures that liability will not be imposed in cases where a prosecutor proceeds, absent reasonable and probable grounds by reason of incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence." - See paragraph 81.

Torts - Topic 6154

Abuse of legal procedure - Malicious prosecution - Malice - General - In considering the malice element of the tort of malicious prosecution, the Supreme Court of Canada stated that the court had to consider the relevant evidence and decide whether, on a balance of probabilities, the prosecutor was in fact motivated by an improper purpose - Consistent with the approach courts had to take in every case, this required an assessment of the "totality of all the circumstances" - The need to consider the "totality of all the circumstances" did not mean that the court was to embark on a second-guessing of every decision made by the prosecutor during the course of the criminal proceedings - It simply meant that a court had to review all the evidence related to the prosecutor's state of mind, including any evidence of lack of belief in the existence of reasonable and probable cause, in deciding whether the prosecution was in fact fuelled by an improper purpose, as alleged - See paragraph 85.

Torts - Topic 6154

Abuse of legal procedure - Malicious prosecution - Malice - General - In considering the malice element of the tort of malicious prosecution, the Supreme Court of Canada stated that "[W]hile it may have made sense in the context of historical private prosecutions to infer malice from absence of reasonable and probable cause in certain circumstances, a public prosecution presents a very different context. A finding of absence of reasonable and probable grounds on the objective standard is entirely equivocal in terms of a Crown prosecutor's purpose, particularly given that reasonable prosecutors may differ on whether a certain body of evidence rises to the requisite threshold. Likewise, a conclusion that a prosecutor lacked a subjective belief in sufficient cause but proceeded anyways is equally consistent with non-actionable conduct as with an improper purpose. To permit an inference of malice from absence of reasonable and probable grounds alone would nullify the very purpose of the malice requirement in an action for malicious prosecution and risk subjecting Crown prosecutors to liability when they err within the boundaries of their proper role as 'ministers of justice'." - See paragraph 88.

Torts - Topic 6154

Abuse of legal procedure - Malicious prosecution - Malice - General - The Supreme Court of Canada stated that "[i]n summary, the malice element of the test for malicious prosecution will be made out when a court is satisfied on a balance of probabilities, that the defendant Crown prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a 'minister of justice'. The 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. While the absence of a subjective belief in reasonable and probable cause is relevant to the malice inquiry, it does not dispense with the requirement of proof of an improper purpose." - See paragraph 89.

Torts - Topic 6155

Abuse of legal procedure - Malicious prosecution - Malice - Inference of - The Supreme Court of Canada stated that the malice element of the test for malicious prosecution considered a defendant prosecutor's mental state in respect of the prosecution at issue - The absence of a subjective belief in sufficient grounds, while a relevant factor, did not equate with malice - It would not always be possible for a plaintiff to adduce direct evidence of the prosecutor's lack of belief - A state of mind could be inferred from other facts - In appropriate circumstances, for example when the existence of objective grounds was woefully inadequate, the absence of a subjective belief in the existence of sufficient grounds could be inferred - However, even if the plaintiff succeeded in proving that the prosecutor did not have a subjective belief in the existence of reasonable and probable cause, this did not suffice to prove malice, as the prosecutor's failure to fulfill his or her proper role could be the result of inexperience, incompetence, negligence, or even gross negligence, none of which was actionable - Malice required a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice - See paragraph 80.

Torts - Topic 6156

Abuse of legal procedure - Malicious prosecution - Malice - What constitutes - The plaintiffs were charged with sexual assault - The charges were eventually stayed - The complaints were fabricated - The plaintiffs sued, inter alia, a child care worker/therapist, the investigating police officer and Crown prosecutors for malicious prosecution - The trial judge found a Crown prosecutor (Miazga) liable - The trial judge found that the prosecution lacked reasonable and probable grounds from an objective standpoint and that Miazga did not possess a subjective belief in the existence of grounds when he decided to proceed against the plaintiffs - The absence of reasonable and probable cause raised a presumption of malice - Alternatively, there were other "indications of malice" to support the conclusion that Miazga's prosecution of the plaintiffs was animated by an improper purpose - The Saskatchewan Court of Appeal rejected the trial judge's "indications of malice" concluded that the trial judge's finding that Miazga did not have a subjective belief in the probable guilt of the plaintiffs was sufficient to support the conclusion that he was actuated by malice - The Supreme Court of Canada allowed Miazga's appeal and dismissed the action - There was no evidence to support a finding of malice or improper purpose - The malice element of malicious prosecution required proof of an improper purpose so as to differentiate between prosecutorial conduct that was not actionable and that which was, by virtue of the fact that it brought the prosecutor outside of his or her role as "minister of justice" - Neither the plaintiffs nor the courts below had pointed to any such improper purpose that impelled Miazga to prosecute the plaintiffs - See paragraphs 9 to 12 and 98 to 101.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - The Supreme Court of Canada stated that "[g]enerally speaking, in an action for malicious prosecution, 'bootstrapping' occurs when a prosecutor argues that he or she had reasonable and probable grounds to commence or continue a prosecution on the basis of subsequent judicial determinations made at the preliminary inquiry or the trial itself. While a determination of guilt at a criminal proceeding is not determinative of the reasonable and probable cause question under the third prong of the test for malicious prosecution, it is a relevant factor that may be properly considered in ascertaining the existence or absence of reasonable cause. Giving weight to antecedent judicial determinations works to ensure consistency between the criminal and civil justice systems ... Absent a fundamental flaw in the criminal proceedings relied upon, it is perfectly reasonable that antecedent judicial determinations may support a finding by a civil court that there existed reasonable and probable cause for an impugned criminal prosecution." - See paragraph 97.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - The Supreme Court of Canada stated that the third element of the tort of malicious prosecution required a plaintiff to prove an absence of reasonable and probable cause for initiating the prosecution - Since malicious prosecution was an intentional tort that targeted a prosecutor's decision to initiate criminal proceedings, this element was generally couched in terms of the prosecutor's belief in the existence of reasonable and probable cause - It was well established that the reasonable and probable cause inquiry comprised both a subjective and an objective component, such that for grounds to exist, there had to be both actual belief on the part of the prosecutor and that belief had to be reasonable in the circumstances - The onus was on the plaintiff to prove the absence of reasonable and probable cause - See paragraph 58.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - The Supreme Court of Canada stated that the third element of the tort of malicious prosecution required a plaintiff to prove an absence of reasonable and probable cause for initiating the prosecution - The reasonable and probable cause requirement had both a subjective and an objective component - That the plaintiff should succeed upon showing an absence of objective grounds, even though the prosecutor believed that they existed, was consistent with the rationale underlying the third element of the tort - A pure subjective belief in a person's guilt without any basis in actual fact could hardly constitute sufficient justification for initiating a criminal prosecution against the plaintiff - That the plaintiff should also succeed at the third stage upon showing that the prosecutor did not believe there was reasonable and probable cause (even though, objectively, such cause did exist at the time) was not so easily rationalized - In the context of a public prosecution, the third element of the test necessarily turned on an objective assessment of the existence of sufficient cause - The presence or absence of the prosecutor's subjective belief in sufficient cause did not properly belong at the third stage of the test but was nonetheless a relevant factor on the fourth element of the test, the inquiry into malice - See paragraphs 69 to 77.

Torts - Topic 6161

Abuse of legal procedure - Malicious prosecution - Reasonable and probable cause - [See first Torts - Topic 6154 ].

Torts - Topic 6168

Abuse of legal procedure - Malicious prosecution - Evidence and proof - [See Torts - Topic 6156 and first Torts - Topic 6161 ].

Torts - Topic 6251

Abuse of legal procedure - Abuse of process - General - [See Barristers and Solicitors - Topic 1804 ].

Cases Noticed:

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 4].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201; 2001 SCC 66, refd to. [para. 5].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 6].

R. v. D.R., H.R. and D.W. (1995), 131 Sask.R. 81; 95 W.A.C. 81; 98 C.C.C.(3d) 353 (C.A.), revd. [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81, refd to. [para. 26].

Heath v. Heape (1856), 1 H. & N. 478; 156 E.R. 1289 (Ex. Ct.), refd to. [para. 42].

Hicks v. Faulkner (1878), 8 Q.B.D. 167, affd. (1882), 46 L.T. 130 (C.A.), refd to. [paras. 42, 60].

Abrath v. North Eastern Railway Co. (1886), 11 App. Cas. 247 (H.L.), refd to. [para. 42].

Joint v. Thompson (1867), 26 U.C.Q.B. 519, refd to. [para. 42].

Prentiss v. Anderson Logging Co. (1911), 16 B.C.R. 289 (C.A.), refd to. [para. 42].

Jewhurst v. United Cigar Stores Ltd. (1919), 49 D.L.R. 649 (Ont. C.A.), refd to. [para. 42].

Gabler v. Cymbaliski (1922), 15 Sask. L.R. 457 (K.B.), refd to. [para. 42].

Love v. Denny (1929), 64 O.L.R. 290 (C.A.), refd to. [para. 42].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 46].

R. v. Boucher - see Boucher v. R.

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 47].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 47].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 48].

Danby v. Beardsley (1880), 43 L.T. 603 (C.P.), refd to. [para. 53].

Ramsay v. Saskatchewan et al. (2003), 234 Sask.R. 172; 2003 SKQB 163, refd to. [para. 54].

Hainsworth v. Ontario (Attorney General) et al., [2002] O.T.C. Uned. 289 (Sup. Ct.), refd to. [para. 54].

Hunt v. Ontario, [2004] O.T.C. 1174 (Sup. Ct.), refd to. [para. 54].

Ferri v. Root - see Mammoliti v. Niagara Regional Police Service et al.

Mammoliti v. Niagara Regional Police Service et al. (2007), 219 O.A.C. 340; 279 D.L.R.(4th) 643; 2007 ONCA 79, refd to. [para. 54].

Wilson v. Toronto (Metropolitan) Police Service et al., [2001] O.T.C. 483 (Sup. Ct.), refd to. [para. 63].

Glinski v. McIver, [1962] 1 All E.R. 696 (H.L.), refd to. [para. 70].

A. v. New South Wales (State), [2007] 3 L.R.C. 693; [2007] HCA 10, refd to. [para. 70].

Marley v. Mitchell, [2006] N.Z.A.R. 181 (C.A.), refd to. [para. 70].

Al's Steak House and Tavern Inc. et al. v. Deloitte & Touche et al. (1999), 94 O.T.C. 265; 45 C.C.L.T.(2d) 98 (Gen. Div.), refd to. [para. 75].

Authors and Works Noticed:

Archibald, Todd L., and Cochrane, Michael, Annual Review of Civil Litigation, 2001 (2002), p. 9 [para. 62].

Archibald, Todd L., The Widening Net of Liability for Police and Public Officials in the Investigation of Crimes, in Archibald, Todd L., and Cochrane, Michael, Annual Review of Civil Litigation, 2001 (2002), p. 9 [para. 62].

Clerk, John Frederic, and Lindsell, The Law of Torts (19th Ed. 2006), pp. 979 [para. 53]; 981 [para. 72].

Fleming, John G., The Law of Torts (9th Ed. 1998), p. 677 [para. 53].

Martin Committee Report - see Ontario (Attorney General), Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of.

Ontario (Attorney General), Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of (Martin Committee Report) (1993), pp. 70 [para. 66]; 71, 72 [para. 67].

Osborne, Philip H., The Law of Torts (3rd Ed. 2007), p. 245 [para. 52].

Pearson, John, Proulx and Reasonable and Probable Cause to Prosecute (2002), 46 C.R.(5th) 156, generally [para. 62].

Sopinka, John, Malicious Prosecution: Invasion of Charter Interests: Remedies: Nelles v. Ontario: R. v. Jednynack: R. v. Simpson (1995), 74 Can. Bar Rev. 366, p. 366 [para. 68].

Counsel:

Michael D. Tochor, Q.C., and Gregory Fingas, for the appellant;

Edward Holgate, for the respondents, Estate of Dennis Kvello (by his personal representative, Diane Kvello), Diane Kvello, S.K.1, S.K.2, Pamela Sharpe, Estate of Marie Klassen (by her personal representative, Peter Dale Klassen), John Klassen, Myrna Klassen, Peter Dale Klassen and Anita Janine Klassen;

Richard Klassen, on his own behalf and on behalf of the respondent, Kari Klassen;

Written submissions only by Robert Frater and Christopher Mainella, for the intervenor, the Attorney General of Canada;

Written submissions only by Michele Smith, Michael Fleishman and Jeremy Glick, for the intervenor, the Attorney General of Ontario;

Sophie Cliche, Lizann Demers and Rachel Boivin, for the intervenors, the Attorney General of Quebec and the Director of Criminal and Penal Prosecutions of Quebec;

James A. Gumpert, Q.C., and Mark Scott, for the intervenor, the Attorney General of Nova Scotia;

John J. Walsh, Q.C., for the intervenor, the Attorney General of New Brunswick;

Eugene B. Szach, for the intervenor, the Attorney General of Manitoba;

Joyce DeWitt-Van Oosten and Tara Callan, for the intervenor, the Attorney General of British Columbia;

Written submissions only by Jerome A. Tholl, for the intervenor, the Attorney General for Saskatchewan;

Written submissions only by Goran Tomljanovic, Q.C., for the intervenor, the Attorney General of Alberta;

Paul J.J. Cavalluzzo and Stephen J. Moreau, for the intervenor, the Canadian Association of Crown Counsel;

Louis Sokolov and Colleen Bauman, for the intervenor, the Association in Defence of the Wrongly Convicted;

Sean Dewart, for the intervenor, the Criminal Lawyers Association (Ontario);

Bradley E. Berg, Allison A. Thornton and Shashu M. Clacken, for the intervenor, the Canadian Civil Liberties Association.

Solicitors of Record:

MacPherson Leslie & Tyerman, Regina, Saskatchewan, for the appellant;

Borden Holgate Law Office, Saskatoon, Saskatchewan, for the respondents, Estate of Dennis Kvello (by his personal representative, Diane Kvello), Diane Kvello, S.K.1, S.K.2., Pamela Sharpe, Estate of Marie Klassen (by her personal representative, Peter Dale Klassen), John Klassen, Myrna Klassen, Peter Dale Klassen and Anita Janine Klassen;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Bernard, Roy & Associés, Montréal, Quebec, for the intervenors, the Attorney General of Quebec and the Director of Criminal and Penal Prosecutions of Quebec;

Public Prosecution Service of Nova Scotia, Halifax, Nova Scotia, for the intervenor, the Attorney General of Nova Scotia;

Attorney General of New Brunswick, Miramichi, New Brunswick, for the intervenor, the Attorney General of New Brunswick;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, the Attorney General of Manitoba;

Attorney General of British Columbia, Vancouver, B.C., for the intervenor, the Attorney General of British Columbia;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Attorney General of Alberta, Calgary, Alberta, for the intervenor, the Attorney General of Alberta;

Cavalluzzo Hayes Shilton McIntyre & Cornish, Toronto, Ontario, for the intervenor, the Canadian Association of Crown Counsel;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, the Association in Defence of the Wrongly Convicted;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, the Criminal Lawyers Association (Ontario);

Blake, Cassels &  Graydon,  Toronto, Ontario,

for the intervenor, the Canadian Civil Liberties Association.

This appeal was heard on December 12, 2008, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The following decision of the court was delivered in both official languages by Charron, J., on November 6, 2009.