The Tort of Malicious Prosecution: A Principled Account.

• Date: 01 March 2024
• Author: Law-Smith, Michael
• Published date: 01 March 2024

This article provides a justification for the often-criticized tort of malicious prosecution. It begins by discussing the Supreme Court of Canada's malicious prosecution caselaw and by reconstructing the Court's expressed policy-based account of the tort. This policy-based account raises three concerns: (1) it renders the malice standard arbitrary, (2) it fails to explain why malicious prosecutors should be held accountable as a matter of private rather than public law, and (3) it leaves the source of the plaintiff's private right mysterious. However, the Court's jurisprudence supports a more principled account, specifically one that focuses on the nature and limits of a prosecutor's public office. This office-based account responds to the above concerns while affirming the Court's view that malice is the correct standard of fault and, more generally, that malicious prosecution is a distinctly private wrong.

Cet article developpe une justification au delit de poursuite abusive, qui est souvent critique. Il debute par l'examen de la jurisprudence de la Cour supreme du Canada en matiere de poursuites abusives et reconstitue l'explication du delit offerte par la Cour, laquelle se fonde sur les politiques publiques. Cette explication fondee sur les politiques publiques souleve trois preoccupations: (1) elle rend arbitraire le critere de l'intention malveillante, (2) elle n'explique pas pourquoi la responsabilite des procureurs malveillants devrait s'enraciner dans le droit prive plutot que le droit public, et (3) elle laisse mysterieuse la source du droit prive du plaignant. Cela dit, la jurisprudence de la Cour appuie une approche fondee sur des principes plutot que des politiques publiques, en particulier une approche qui se concentre sur la nature et les limites de la charge publique d'un procureur. Une telle approche repond aux preoccupations susmentionnees tout en confirmant le point de vue de la Cour selon lequel l'intention malveillante est la norme de faute applicable et, plus generalement, les poursuites abusives constituent un delit de droit prive distinct.

Introduction
                I. The Malicious Prosecution Trilogy: Nelles, Proulx, and Miazgga
                II. The Policy-Based Account
                 A. Balancing Discretion and Accountability
                 B. Three Challenges to the Policy-Based Account
                III. The Principled Account
                 A. Public Offices and Relational Equality
                 B. The State's Liability for Office-Based Wrongs
                 C. The Doctrinal Structure of Malicious Prosecution
                 D. Malicious Prosecution as the Violation of a Private Right
                Conclusion
                

Introduction

The common law tort of malicious prosecution provides that persons subject to groundless and maliciously motivated criminal proceedings may recover damages against the prosecutor. The tort was developed in the eighteenth century, when private litigants prosecuted criminal charges. (1) This history is often invoked to explain why plaintiffs were required to prove not merely that the prosecutor knew or should have known that the action was groundless, but, more demandingly, that the prosecutor was motivated by malice or an improper purpose. The malice standard was "justified historically on the need to encourage private citizens to assist in bringing criminals to justice." (2) Of course, today it is state prosecutors, not private individuals, that prosecute virtually all criminal actions. However, common law courts still recognize the tort. Moreover, they still apply the traditional malice standard.

Given this history, it is perhaps not surprising that some legal officials and scholars have questioned whether the tort of malicious prosecution should continue to exist (or, at least, exist in its traditional form) in a modern legal system where the state prosecutes almost all criminal proceedings. Lord Mance, dissenting in Willers v. Joyce, the Supreme Court of the United Kingdom's most recent malicious prosecution judgment, wrote that "the tort of malicious prosecution of criminal proceedings is virtually extinct" and developing it further would "come close to necromancy." (3) Others argue that the "reality of modern prosecutorial arrangements" requires a "fundamental reassessment" of the tort's constitutive elements. (4) Some hold that the shift to public criminal prosecutions justifies a lower standard for liability. Erika Chamberlain, for example, writes that "with private prosecutions being all but obsolete, the need for such restrictions on liability is diminished." (5) The majority in Willers, for its part, extended the tort to include the malicious prosecution of civil proceedings. More generally, malicious prosecution is often considered to suffer from the same conceptual difficulties as the related tort of misfeasance in public office, which has been described as "peculiar" or a "misfit" in a sphere of civil liability grounded in individual private rights. (6) Indeed, one might question whether the wrongful conduct at the heart of malicious prosecution is best addressed through private law at all. (7)

Among these criticisms, two lines of objection against the traditional conception of malicious prosecution emerge. First, it is argued that the tort is a historical by-product and that in an era of public prosecutions it should be abandoned, or its malice element should be replaced with a lower standard, such as negligence. Second, it is argued that prosecutorial wrongdoing at the hands of state officials is an awkward conceptual fit within private law, which traditionally focuses on the rights and duties governing the interactions of private individuals, and thus that prosecutorial wrongdoing should be addressed through public law remedies, such as those available in administrative or criminal law.

Notwithstanding these criticisms, the Supreme Court of Canada, in a series of cases over the past thirty years, has upheld the tort of malicious prosecution and its traditional malice standard of fault. In justifying the enduring importance of this tort, the Court explained that "public confidence in the office of a public prosecutor suffers greatly" where prosecutors are not held accountable for abusing their power. (8) Furthermore, the Court held that the high threshold of malice provides "a careful balancing between the policy consequences of exposing prosecutors to liability, versus the need to safeguard and vindicate the rights of the accused." (9) However, this policy-based account is vulnerable to three concerns. While it provides an intelligible explanation for the malice standard, the balancing rationale invites doubt as to whether the standard should not be higher or lower. More importantly, it fails to offer a robust explanation for why malicious prosecutors should be held liable in private law rather than accountable in public law. Finally, and relatedly, it leaves the nature and source of the plaintiff's underlying private right mysterious.

In this article, I argue that the Supreme Court's jurisprudence supports a more principled account, specifically one that focuses on the nature and scope of the prosecutor's public office. This principled reconstruction of the Court's position explains why the tort of malicious prosecution is required in a system of law in which criminal proceedings are brought by public prosecutors whose office is occupied by natural persons. The fact that private individuals occupy the office that exercises the state's prosecutorial powers entails that individuals ought to have rights against each other from abusing the powers attached to those offices to harm one another. Malicious prosecution is, then, the wrongful use of the state's prosecutorial powers by one individual against another. The malicious prosecutor wrongs the defendant to the criminal proceeding by using prosecutorial powers against them for a purpose inconsistent with the prosecutor's office. Unlike the policy-based account, the principled account is not vulnerable to the three concerns mentioned above. The principled account responds to these concerns while affirming the Supreme Court's view that malice is the correct standard of fault and the key element of the tort. More generally, it affirms that malicious prosecution is not only a distinct wrong--it is a distinctly private wrong.

This article proceeds in three parts. Part I traces the Supreme Court's jurisprudence on malicious prosecution. Part II discusses the policy-based account for the tort and identifies three concerns for this account. Part III develops the alternative, principled account and explains how it addresses these concerns.

I. The Malicious Prosecution Trilogy: Nelles, Proulx, and Miazga

The Supreme Court of Canada's contemporary jurisprudence on malicious prosecution begins in 1989 with Nelles v. Ontario. (10) The plaintiff, a nurse at the Toronto Hospital for Sick Children, had been charged with murdering newborns. The nurse sued the Crown, the Crown Attorneys, and the Attorney General for malicious prosecution after her charge was dismissed for insufficient evidence at a preliminary hearing. The defendants moved to strike the claim, arguing that the Crown is immune from liability for its prosecutorial decisions.

The Supreme Court rejected the Crown's argument, holding that the government and its prosecutors do not enjoy absolute immunity from civil liability for how they exercise their prosecutorial powers. (11) The Court further rejected the Crown's argument that even limited Crown liability would have a "chilling effect" on legitimate prosecutions or would diminish public trust and confidence in the integrity of prosecutors. (12) Public confidence in the impartiality of public prosecutors, the Court explained, requires that prosecutors be held accountable when they abuse their prosecutorial powers. (13)

The Court held that, to establish malicious prosecution, the plaintiff must prove on a balance of probabilities that the prosecution was: (1) initiated by the defendant, (2) terminated in favour of the plaintiff, (3)...