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Nelles v Ontario, [1989] 2 SCR 170 (Link)


N was charged with first degree murder in the deaths of four babies at the hospital. Hearings were well-publicized and lengthy. Charges were dropped because of lack of evidence. She sued the police and AG and Crown


Is the Crown liable for malicious prosecution?


Four elements are necessary to succeed in an action for malicious prosecution:
** 1. The proceedings must have been initiated by the defendant;
** 2. The proceedings must have terminated in favour of the plaintiff;
** 3. The absence of reasonable and probable cause; and
** 4. Malice, or a primary purpose other than that of carrying the law into effect.


In terms of 3 and 4:

3. Reasonable a probable cause:
** An honest belief in the guilt of the accused (a reasonable person would believe that a full conviction would ensue). This has subject and objective elements: actual belief on the part of the prosecutor + reasonable belief in the circumstances
** Matter of law for the judge (not the jury to decide). If there was reasonable cause, then the plaintiff would have been acquitted.

4. Malice:
Improper purpose; more than spite or ill-will. This could include a desire to gain a private collateral advantage

** High standard of proof; must prove all 4 elements. The plaintiff must essentially show that the prosecution has committed fraud on the criminal justice system. Usually also includes an infringement of s.7 and s.11 of the Charter of Rights and Freedoms

Policy considerations
** Some argue that prosecutor immunity builds confidence and trust in the impartiality of prosecutors. But here, the Court says that the office of the prosecutor suffers when abuses are committed and then shielded from civil liability. The Court noted the importance of equality under the law. The high standard of proof balances with the need for prosecutorial discretion (requires demonstrating improper purpose, which is not easy; financial costs will deter meritless claims).

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