Child Abuse, Satanic Ritual, and Malicious Prosecution: The Supreme Court of Canada Weighs In on Saskatchewan’s “Scandal of the Century”

On Friday, the Supreme Court of Canada released judgment in the malicious prosecution case Miazga v Kvello Estate, [2009] 3 SCR 339, long-awaited by the parties involved as final resolution to the bizarre and heartbreaking judicial saga once termed Saskatchewan’s “Scandal of the Century.” The decision is also much-anticipated by my fellow editors at TheCourt.ca, who have previously reviewed the case in its Court of Appeal context here, here, and here.

The circumstances motivating this appeal fascinated the popular media, and have been subject to intense scrutiny since coming to light some seventeen years ago. The appellant Crown prosecutor was charged with improperly pursuing an ongoing investigation involving three young children (the R. siblings) who had made disclosures of abuse against their biological parents, respondent foster parents, and their respondent extended family. In addition to alleging that they were forced to commit various sexual acts, the children described their participation in a number of extraordinary satanic rituals, including the protracted sacrifice of animals, eating their eyeballs, and eventual drinking of human blood. After committing the respondents for trial on some seventy criminal charges, it became apparent to the appellant that at least one of the children had lied about keeping records of the alleged abuse.  The appellant grappled with whether to proceed despite concerns as to their credibility, but opted to forge ahead and ultimately secure convictions against the children’s parents (which, incidentally, were overturned by the Supreme Court of Canada some five years later in R v R(D), [1996] 2 SCR 291).  The appellant was cautioned by the trial judge that the children should not be made to endure another criminal proceeding against the remaining accused, including the respondents; charges against them were soon stayed. Some years after the stay, the R. children recanted their allegations against the respondents in full, identifying an unhealthy dynamic between the siblings perpetuated by the oldest child who himself abused his younger sisters.

Shortly thereafter, the respondents commenced a civil suit against the appellant for malicious prosecution. Citing the incredible nature of the children’s testimony and lack of evidence corroborating the charges against them, the respondents submitted that, absent reasonable and probable grounds to proceed with the prosecution, the Court ought to presume that their prosecution by the appellant was motivated by an improper purpose inconsistent with the appellant’s role as a “minister of justice.”

Reaffirming and Clarifying the Requirements for Malicious Prosecution

Justice Charron’s ruling duly appreciates that the wrongly accused respondents were the victims of a miscarriage of justice, sullying their reputations in society and causing great emotional trauma. The stigma associated with such serious crimes as those with which the respondents were charged may still attach itself to accused persons well after they are exonerated. Such an unfortunate circumstance, however, does not bear on the legal question of whether a prosecutor was motivated by impropriety in carrying out a misdirected investigation. Indeed, in this case, Justice Charron for a unanimous court dismisses the respondents’ malicious prosecution suit on evidentiary grounds.

To have succeeded in the action, the plaintiffs were required to prove that the prosecution was: (1) initiated by the defendant; (2) terminated in favour of the plaintiff;  (3) undertaken without “reasonable and probable cause”; and, (4) motivated by malice or a primary purpose other than that of carrying the law into effect. This framework is well-established in the common law and reaffirmed in Justice Charron’s reasons. She explains that the burden on claimants to meet these requirements is an onerous one; perhaps rightly so, as the law is designed to balance the right of individual citizens to be free from groundless criminal proceedings and the public’s interest in the swift and independent prosecution of suspected wrongdoing. To disproportionately weigh the former would constrict the Crown’s prosecutorial discretion to initiate, continue, or terminate proceedings free from the influence of partisan concerns or excessive judicial meddling.

Justice Charron also provides much needed clarification of the requirement for “reasonable and probable cause” in the third inquiry. Courts should not be concerned, as the respondents submitted, with a prosecutor’s subjective belief in the accused’s guilt because the public nature of his or her office precludes militating personal views from informing or obscuring the pursuit of criminal justice. Reasonable and probable cause, rather, is driven by a prosecutor’s objective and professional assessment of the legal strength of each case.  “Belief in ‘probable’ guilt,” Justice Charron writes, “therefore means that the prosecutor believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law.”

In such cases spanning many years, it can be difficult for judges to appraise reasonable and probable cause at the time of an impugned investigation without the benefit of hindsight. Despite early questions as to the credibility of the R. children’s allegations, there was no requirement in the early 1990s that the unsworn evidence of children must be corroborated in order to obtain a conviction. Indeed, the prevailing wisdom (now debunked) among child psychologists was that “children don’t lie” about abuse. Further, and perhaps most intuitively, several sophisticated persons including the trial judge and appellate judges evidently believed the children’s evidence to be credible at the time, or else they would not have reached their eventual conclusions. I agree with Justice Charron that it is perfectly proper to rely on judicial “bootstrapping” – arguing reasonable and probable cause to prosecute an accused existed in the first instance on the basis of antecedent judicial determinations – in circumstances such as these. Despite potentially seeming absurd in light of current understandings of psychology and greater experience trying child abuse cases, seventeen years ago it may not have seemed ridiculous for a Crown prosecutor to ground serious charges on the unsworn and uncorroborated evidence of children.

Finding the appellant’s prosecution was undertaken with just cause, the respondents’ malicious prosecution claim thus failed to pass the third hurdle; accordingly, Justice Charron need not have proceeded with the fourth, eponymous “malice” requirement of the tort. Very fortunately, however, she does clarify this area of law by recalling the principle from an earlier, equally compelling malicious prosecution case Nelles v Ontario, [1989] 2 SCR 170 [Nelles], concerning an attendant nurse at Toronto’s Sick Kids Hospital wrongly accused in a series of mysterious infant deaths. Nelles held that in order to prove malice, a plaintiff must bring evidence that the Crown initiated or continued the impugned prosecution based on an improper purpose inconsistent with his or her public duty.

Most relevant in this appeal, a prosecutor’s lack of subjective belief in an accused’s probable guilt is suggestive, although not determinative, of impropriety. It may very well be that the prosecutor’s lack of belief is attributable to inexperience, incompetence, negligence, or gross negligence (the latter of which may be actionable as an unintentional tort, but is not actionable as the intentional tort of malicious prosecution). Subjective belief is but one of the “totality of the circumstances” relating to a prosecutor’s state of mind upon his or her filing charges. Thus, Justice Charron finds that the plaintiff’s alleged lack of subjective belief, in the absence of additional evidence that he was motivated by fraudulent design, cannot be equated with malice and or displace the need for proof of an improper purpose.

Increasing the Intelligibility, if not the Accessibility, of the Tort

Justice Charron’s decision is, in my view, to be commended for its lucid explanation of the four elements of malicious prosecution and the rationale underpinning each. In particular, previous interpretations of the third (“reasonable and probable cause”) inquiry had often conflated the prosecutor’s objective, professional belief with his or her subjective belief. Assigning the latter to the fourth (“malice”) requirement both makes intuitive sense and decreases opportunities for confusion. The resulting framework is arguably more intelligible and easier for wrongfully accused persons to apply.

That being said, in this case greater intelligibility does not necessarily translate to greater accessibility. Even with Justice Charron’s tinkering, I fear the tort’s requirements remain unduly onerous and that it is still exceedingly difficult for wrongly accused claimants to earn remedies under them. Certainly under the old formulation, the evidentiary burden on claimants to bring forth positive indicators of malice was so high to be nearly impossible. My preliminary research suggests that since the Supreme Court eliminated Crown immunity from tort actions in Nelles some twenty years ago, there has yet to be a successful malicious prosecution suit in Ontario. I find this quite staggering: while I share Justice Charron’s view that Crown independence and prosecutorial discretion are absolutely fundamental to the integrity and efficiency of the criminal justice system, I am also convinced that a wrongly accused individual’s right to a viable tort remedy is equally fundamental. I reserve hope that a claimant’s ability under the new framework to adduce evidence of a prosecutor’s lack of subjective belief as part of the fourth (“malice”) requirement eases the burden in making a case; otherwise, there seems little use in continuing to provide a means for redress that is so prohibitively difficult to access.  Ultimately, rather than simply adding further gloss to the consituent elements of the existing tort, justice may be better served by reconceptualizing malicious prosecution altogether.