Malicious Prosecution - Working Group 2008

CONCLUSION

[17] Accordingly, the Working Group recommends that the Conference receive this paper and the draft model legislation. However, before acting on this proposal, it is recommended that the ULCC wait for the reasons of the Supreme Court of Canada in the Miazga appeal, and that the Working Group reconvene upon the release of the decision to consider its implications so that ultimately any uniform law in this area is current and properly informed.

Appendix A

Uniform Proceedings Against Crown Attorneys Act

Comment: As an alternative to a separate statute, a jurisdiction may wish to enact the provisions of this Act as an amendment to a Crown Attorneys Act.

Definition

1. In this Act,

“Crown Attorney” means,

(a) a Crown Attorney, Deputy Crown Attorney or assistant Crown Attorney appointed under the Crown Attorneys Act, [fill in name of applicable provincial statute]

(b) a member of the bar of Ontario temporarily appointed under that Act to act as a Crown Attorney, Deputy Crown Attorney or assistant Crown Attorney,

(c) a public servant authorized under that Act by the Attorney General to be a provincial prosecutor, and

(d) a person who was, but no longer is, a person described in clause (a), (b) or (c).

Application

2. This Act applies to every civil proceeding respecting a Crown Attorney’s conduct in a criminal prosecution (‘prosecution”) that is brought by a plaintiff who was the subject of the prosecution.

Protection from liability

3. (1) No civil proceeding shall be instituted against a Crown Attorney for anything done in the conduct of a prosecution or in the intended performance of a duty with respect to a prosecution or in the exercise or intended exercise of a power with respect to a criminal prosecution or any neglect or failure in the performance or exercise of a duty or power with respect to a prosecution.

Liability of Attorney General

(2) Despite subsection (1) and subject to section 4, a plaintiff who was the subject of a prosecution may bring an action against the Attorney General in respect of the conduct of the prosecution by a Crown Attorney.

Discovery

(3) In a proceeding against the Attorney General under subsection (2), the Rules of Civil Procedure as to examination for discovery and inspection of documents apply in the same manner as if the Attorney General were a corporation, except that,

(a) the Attorney General may refuse to produce a document or to answer a question on the ground that the production or answer would be injurious to the public interest;

(b) the person who shall attend to be examined for discovery shall be the Crown Attorney whose conduct is the subject of the civil proceeding unless he or she is no longer a Crown Attorney, in which case the person shall be an official designated in writing by the Deputy Attorney General; and

(c) the Attorney General is not required to deliver an affidavit on production of documents for discovery and inspection, but a list of the documents that the Attorney General may be required to produce, signed by the Deputy Attorney General, shall be delivered.

Service on the Attorney General

(4) In a proceeding under this Act, a document to be served personally on the Attorney General shall be served by leaving a copy of the document with a [ …].

Trial without jury

(5)In a proceeding against the Attorney General under subsection (2), trial shall be without a jury.

Elements to be proved

4. (1) In a civil proceeding respecting a Crown Attorney’s conduct in a prosecution, the plaintiff must establish that,

(a) the Crown Attorney initiated or continued the prosecution;

(b) the prosecution was terminated in favour of the plaintiff;

(c) there was an absence of reasonable and probable cause to initiate or continue the prosecution; and

(d) the actions of the Crown Attorney in the conduct of the prosecution were malicious or were done for an improper purpose.

Continuing a prosecution

(2) For the purposes of subsection (1), a Crown Attorney continued a prosecution if the Crown Attorney, at any stage of the prosecution,

(a) made a determination that the prosecution should proceed; or

(b) otherwise took a step in the prosecution to ensure that it proceeded.

Reasonable and Probable Cause

(3) For the purposes of subsection 4(c), the Crown Attorney’s personal opinion about the guilt of the accused shall not be considered in the determination of whether there was an absence of reasonable and probable cause.

Malice, improper purpose

(4) For the purposes of clause (1)(d), malice or an improper purpose shall not be inferred solely from a finding that the Crown Attorney did not have reasonable and probable cause to initiate or continue the prosecution.

The short title of this Act is the Proceedings Against Crown Attorneys Act, 2008. If you have the action be against the AG, this title is misleading. It might be more accurate to say: Proceedings with respect to the Conduct of Crown Attorneys Act, 2008


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