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Law Times • December 14, 2009 FOCUS PAGE 13 Court raises standards for malicious prosecutions I BY DARYL-LYNN CARLSON For Law Times t will not be very easy to sue a Crown prosecutor for ma- licious prosecution follow- ing a recent Supreme Court of Canada case. In its decision on the matter of Miazga v. Kvello Estate, the high court affi rmed that to establish a case of malicious prosecution, a plaintiff must prove that a pros- ecutor had no reasonable or prob- able grounds to lay the charges in question and that in laying them, the Crown "deliberately intended to subvert or abuse" his or her au- thority and offi ce. Moreover, the court ruled that the absence of probable cause isn't suffi cient to accuse a Crown attorney of malicious prosecution. Rather, the plain- tiff must also be able to show that the prosecutor harboured an improper purpose in laying the charges and that they were demonstrably malicious as op- posed to merely reckless, negli- gent or ill-founded. Th e Miazga case dates back to 1991, when Saskatchewan Crown prosecutor Matthew Miazga pro- vided police with pre-charge ad- vice about an alleged case of child abuse. Th ree children had made claims to police of ritualistic sexual abuse against their biological and foster parents. Th e adults were eventu- ally charged with roughly 70 counts of sexual assault, al- though when the case went to trial, Miazga began to doubt the children's credibility. His offi ce advised him to proceed with the trial, and ultimately in 1995, the children's biological parents were found guilty. An- other adult was off ered a plea bargain while the rest of the charges were stayed. Th e perceived problems with the credibility of the children's testimony, however, led to an appeal. But after the convictions were upheld, the case ended up at the Supreme Court. Brian Crane, a partner in the advocacy law group at Gowling Lafl eur Henderson LLP's Ottawa offi ce, says he wasn't surprised at the court's affi rmation of pros- ecutorial latitude. "Th e tests that are laid down and were reaffi rmed by the Su- preme Court of Canada are tests that would be followed by any prosecutor in any event," he says of the process that Crowns use to assess whether to lay charges in the fi rst place. In fact, he says the tests set out in Crown manuals "are even stricter, an even higher test" to prevent against mali- cious prosecution. He notes that even the top court pointed out that the tort of malicious prosecution dates back to the days of private prosecutions. Th e decision in Miazga "tightens up the rules a little bit, but I don't think it will change the criminal practice to any de- gree," says Crane. "It's a very high threshold, and these are diffi cult cases to succeed in. Sometimes people get very disturbed that there was a prose- cution brought against them, but from a lawyer's point of view, the most important fi nding [in Mi- azga] is that you can't reach the conclusion that a Crown attorney acted maliciously on the basis that there were no grounds to bring the case" in the fi rst place. "It's only where there's an evi- dent intent to injure or malice where you can be successful, and it's a comparatively rare type of case," Crane points out. Other lawyers echo that senti- ment, saying that if anything, it's made such lawsuits even harder to undertake. "In the tort world, it has raised the bar and made it more diffi cult to sue Crown pros- ecutors for malicious prosecu- tion," says Peter Doody, a partner and civil litigator with a focus on public law at Borden Ladner Ger- vais LLP in Ottawa. He notes the case also clari- fi es that even if Crown attorneys have a "personal belief in the guilt of the accused person," they will not be subject to liability for mali- cious prosecution. "So where the personal of belief a Crown prosecu- tor might come into play is in the question as to whether the prosecution [was] brought about by malice even if there was reasonable and probable grounds," Doody points out. "But the Supreme Court also made it clear that to fi nd that there is malice on the part of the Crown is going to require an awful lot to show that the Crown willfully perverted or abused the offi ce of the attorney general, which is very strong language" and a very high test. Th e ruling, in fact, comes at Marketplace SERVICES AVAILABLE PCLaw Bookkeeping services for the downtown Toronto area. Two ½ days or a single full day per week are available. Please call Rachel Nadler at Ruby & Shiller. 416-964-9664 EMPLOYMENT WANTED SERVICES - Available law clerk. 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Th ey would, among other changes, make the attorney gen- eral solely liable for such cases. Th ey would also remove the right to jury trials and allow the gov- ernment to withhold informa- tion or refuse to answer questions on the basis of public interest. Some lawyers have sounded the alarm about the changes, saying they off er the attorney general procedural advantages in defend- ing against lawsuits. In the wake of Miazga, then, Doody suggests there could be a slight increase in Crown prosecutions in some circum- stances where in the past there may have been a concern about future allegations. LT Subscribe to Law Times Why pay extra for your legal news? Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE 'Shock and disappointment' Cosgrove says 'life goes on' after the bench Cutting-edge legal affairs, news and commentary for just 37¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. www.mckellar.com www.mckellar.com together we have all the tools. TitlePLUS title insurance and you, TitlePLUS title insurance and you, 1-800-265-8381 $3.55 • Vol. 20, No. 13 Covering Ontario's Legal Scene together we have all the tools April 20, 2009 BY ROBERT TODD Law Times F Future uncertain for McCarthys' Ottawa office dicial Council's decision to call for his ouster, saying he was compelled to resign due to his pending retire- ment, despite finding aspects of the council's report "troublesome." Cosgrove tells Law Times in an interview that once the CJC issued its recommendation to the justice minister, "My options were pretty narrow." While he believes he could have appealed an earlier committee report at ormer Ontario Superior Court justice Paul Cosgrove has spo- ken out on the Canadian Ju- month after the CJC issued a final re- port stating that his actions in a late- Cosgrove inquiry the Federal Court, he says a decision was un- likely before his mandatory retire- ment took hold in December. resigned earlier this Former Superior Court justice Paul Cosgrove tells Law Times that his pending mandatory retirement compelled him to resign from the bench rather than battle a call for his ouster. 1990s murder trial led to the conclusion that he "failed in the execution of the duties of his judi- cial office and that public confidence in his abil- ity to discharge those duties in future has been irrevocably lost." The decision made him only the second federal judge to meet such a fate. But the former judge says parts of the CJC's the senior regional judges in Ottawa since I've been here for the last 24 years, all wrote very positive recommendations, and they also were aware of the trial," says Cosgrove. "So to say that these letters, the people had final report could have been challenged. The council did not use a set of 32 letters of support written by judges and retired judges, law- yers, and members of the public when coming to its decision, saying they were irrelevant, he notes. "Personally, I found that difficult because, for example, there were my supervising judges, people in public office, and they were given little weight, according to the decision." 3 Cosgrove's final criticism is the CJC's determination that the issue of public confidence was central to its decision. He suggests that it remains unclear what evidence is required to make such a determination. Fight Over Fees given rise for us to challenge," he says. "The problem with that is, of course I'm retired — manda- tory retirement in December of this year. And the process, for ex- ample, dealing with the constitu- tional issue, took three years." He says he did not want to "So, all of those issues may have Financial Matters with 20,000 pages of evidence likely put forth. The 74-year-old former judge, who will gamble and let the matter play out before Parliament, where an un- precedented joint resolution would have been required to finalize his ouster. Doing so may have proved cumbersome, suggests Cosgrove, no knowledge of what was going on was not accurate." Cosgrove also suggests the council should have used the letters from community mem- bers when considering whether he had lost the public's confidence. "It would seem to me that it's logical to test collect an annual pension of about $170,000, says that before the decision he was reason- ably confident that the council would not call for his dismissal. Independent counsel Earl Cherniak, a partner at Lerners LLP, had previ- ously told the council such a stern punishment was not necessary. "It was shock and disappointment," Cos- what the public's demeanour is; you ask people who are knowledgeable in the public," he says. "And there were a number of letters from 9 Focus On ADR/ Mediation 6 Inside This Issue grove says of his reaction to the final decision. He says he has been dealing with the fall- out by responding to media inquiries, and See Cosgrove, page 4 Quote of the week BY TIM NAUMETZ For Law Times OTTAWA — The possible closure of McCarthy Tétrault LLP's high- profile office in the nation's capital is unrelated to dire economic cir- cumstances that have hit home for some Canadian law firms, a senior McCarthys partner says. zation we review our business plans on an ongoing basis," Boake tells Law Times when asked of the Ot- tawa office closure possibility. She adds the firm wants to meet the needs of its clients, and that each of its offices have a practice and focus which aligns with McCarthys' over- all strategy. "So it's in that context "Yeah, I guess, like any organi- staff, remains undecided. "It's really just a question of the fact that we are in discussion with lawyers there as part of an overall strategic review," she tells Law Times. "These discussions have been decisions" because of a drop in busi- ness due to the economy, letting go less than 20 of its 650 lawyers across the country. She would not give the specific number or other details. Gowling Lafleur Henderson going on for a while and are not related to the economy," she says. "I would call it a strategic review. Our firm really focuses on integrat- The financial crisis that has hit directly New York and London, being financial centres of the world, and the financial institutions based there, has not hit to the same degree in Canada, primarily because of the strength of the financial institutions in Canada. McCarthys' Ottawa contingent is a "strategic review" based on the firm's national business plan, and the role played by all of its six loca- tions across Canada, says Barbara Boake, national leader, profession- als, at McCarthy Tétrault. Consideration of the future of that we're currently reviewing the Ottawa office, but no decision has been made to close it," she says. Boake would not divulge fur- ther details and said the fate of the office, along with the employ- ment of its seven partners, two associates, and 11 administrative ed practices; we have offices right across the country. We have a very diversified practice geographically and our overall strategy is to inte- grate those practices and develop client teams on a firm-wide basis." Boake, however, confirmed Mc- Carthys has taken "difficult staffing LLP also confirmed to Law Times the firm released staff last week. But Gowlings chairman and CEO Scott Jolliffe said the shakeup did not involve partners or associ- ates. Jolliffe says the firm is shifting toward a "pod" model where law- yers and associates share a smaller number of secretaries, but he would not say how many were affected. The move not only economizes, but also creates a team atmosphere among secretaries that is useful for mentoring and sharing workloads. Sources in the legal community say McCarthy Tétrault's Ottawa re- view may be related to a management See Ottawa, page 4 WHICH DIRECTION IS BEST FOR YOU? RainMaker Group 110 Yonge Street, Suite 1101 Toronto, Ontario M5C 1T4 www.lawtimesnews.com Tel: 416-863-9543 Fax: 416-863-9757 www.rainmakergroup.ca "I think this more clearly delineates what exactly is the test," he says of the Supreme Court decision. "So this decision might tend to remove that inhibition, and Crown attorneys are going to be less worried about being sued for malicious prosecution. So this could even result in more charges going ahead that other- wise might not have." q Send me 1 year of Law Times for only $135.00 (Total with GST: $141.75) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ q Payment enclosed q Charge my: q Visa q Mastercard q American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. 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