The three judges wrote (see the attached) in the response to the appeal on
In Para. (26) “In the case at bar, the prosecutor made two references to the fact that the Crown’s evidence stood uncontradicted. He stated that there was “no evidence” of any “alternative version of what happened” other than the complainant’s. He then said that the only evidence regarding the issue of consent was what she had told the jury.” In Para. (27) they wrote “Now that may present a problem, because you need to figure out what his knowledge was as to whether or not she was consenting. But he didn’t testify, so he can’t be asked directly what he thought at the time or what he construed or what he knew. [Emphasis added).”In Para. (28) “The words “but he didn’t testify” clearly amount to a comment on the failure of the appellant to testify within the letter of s.4(6).”

The Crown’s case was very weak. The Crown’s professional witness contradicted the complainant’s testimony. In my view, the only way he could get a guilty verdict was by breaching my rights, which I think should be investigated for professional misconduct. I had a right to a fair trial. It is clearly written under the human rights and criminal code that a Crown or judge is not to, under any circumstances, indicate or infer a person’s guilt for not taking the stand.

The jury came back and asked three questions which are

1.(speculation)-can we fill in the gaps

2. Conclusions as to what someone was thinking at the time of events

3. (If evidence is not sufficient)- must we acquit.

These questions demonstrate that the jury was confused with the evidence and the comments that the Crown made.

Three appeal court judges agreed with my conclusion because they granted me a new trial at my appeal. A new trial was set for January 4th 2010 but the crown dropped all charges against me in September 2009. The reason for dropping all charges was their witness refused to take the stand again and lack of evidence.

In this case I find that the crown ” W Milko” should be held responsible for his actions and Malice applied to a case like this

In a court of law, the accused must be a defendent and not a target.

In Oniel, a decision of the Ontario Court of Appeal, “abuse of process” was thought to found “malice.”
http://www.canlii.org/en/on/onca/doc/2001/2001canlii24091/2001canlii24091.html

Oniel has been applied in 6 provinces. The Supreme Court of Canada must make exhaustive efforts to shake ambiguity from this tort. We are reluctant in second guessing police conduct where public safety is a factor. However, evidence assessment is different; police can and must treat same with impartiality and objectivity.

As for police conduct: why do we pretend that professionalism characterizes police norms? In 2000, independent auditors of Toronto Police Services’ internal investigations system, viz public complaints, found substantiation of only 12 of 814 complaints. When accused, cops use coverup, whitewash, smear and plant, to produce ersatz exhonerations of their own. What about police training? BC’s centralized training sytem (“Justice Institute”) requires only 65 days of class training before a recruit is interned in police work; the Police Act oath can be taken after a few days of review and preparation. A real profession – Legal practice – requires over 600 days of schooling, and long internships and articling. The work product of the average Canadian cop yields 1 convicted person per month. Far from working to get-criminals-off-the-streets, the average cop delivers 1 incarcerated convict, per year. The legal profession needs to cease all deference to police. A cop is barely a public safety amateur, let alone a professional. Yet prosecutors let the tail wag the dog.

There hasn’t been one (that’s right, not one) successful malicious prosecution action against a Crown Attorney in Ontario ever. Nelles went all the way to the Supreme Court after the lower court and Ontario Court of Appeal struck the plaintiff’s claim as not disclosing a cause of action based upon the existing common law and statutory absolute immunity against the Crown and its Assistant Crown Attorneys. My understanding is that there was no trial and the Ontario government settled following the inquiry into the deaths of the children at Sick Children’s hospital.

Miazga offers The Court an opportunity to refine or, perhaps, reconstitute, the tort of malicious prosecution since Nelles and its progeny, including Proulx.

It may be worthwhile for the Supreme Court to consider expanding the test to address the following points:

1) The proceedings must have been initiated by the defendant, or any party acting in furtherance of the proceedings, including any party not acting in a judicial capacity, such as an agent of the defendant (thereby imputing the law of agency into the equation) [note: a justice of the peace taking an information is an administrative act, not a judicial one]

2) The proceedings must have been terminated in favour of the plaintiff, which includes not only an acquittal, but also a stay of proceedings based upon Charter breaches for Crown misconduct (non-disclosure by the Crown (R. v. Stinchcombe) or ss.7, 11(b) breaches for unreasonable delay, etc.);

3) The absence of reasonable and probable cause for prosecution and absence of reasonable prospect of conviction, including failure to apply or follow any statutory or regulatory obligations on the Crown relating to charge-screening (e.g. Federal Crown Policy Manual or Ontario Crown Policy Manual);

4) Malice, or a primary purpose other than that of carrying the law into effect, which, may be inferred in the absence of (3) above;

5) Damages must be proven, but where all (4) elements have been established, then liability is actionable per se without necessity of proof of general damages, albeit special damages need be proven.

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