I want to talk to you today about malicious prosecution. I have a lot of clients who they retain us, let’s say they are charged with a sexual assault or domestic assault or some other violent crime or any type of crime really. And they are adamant about their innocence, they are innocent and I believe them, they are hopping mad that they have been charged frankly, and they start firing out the gate and they say “Mike, look, I want to sue the police, I want to sue the Crown, the complainant, and I want damages for this false allegations”. Well I slow them right down, and I say look, “first things first, we have to focus on trying to defend you, win your case and getting an acquittal. And then I say, the tort in malicious prosecution where you start a law suit against the crown, and the police, it is a very high level test, it’s very difficult to prove, there are some reported decisions and they are successful decisions, but I can tell you, it’s such a rarity, to meet that test and be successful, most cases won in a criminal court room, the judge always find some sort of reasonable doubt. It’s very rare for the judge to start criticizing police, criticizing the crown, calling the complainants liars, and what not, and it’s very difficult to prove. Even if, they are doing those sort of things, and you know, the Crown got this case, that they moved forward, there’s no chance of winning, they did it maliciously, and you know, those cases are worth big dollars, that happens and I have seen some recent cases where that happens. There was a case involving, one of the seminal case really in Canada was the Susan Nellis case, who was a nurse, who was falsely accused in Ontario, of killing people in the hospital, and it was shown that she was completely innocent and the Crown and police were malicious in that case, and she won a huge settlement. So people get fire in their eyes ” look, I’m adamant, about my innocence “ and I say: “ slow down, we are going to try and win this case first , at the end of case, I will tell you if I think you have sufficient evidence to pursue this very high level test”. Now I can tell you, just to give statistics, I have been involved in the criminal justice system for 31 years, in multiple cities. I have been involved in one case, one case of the hundreds and hundreds, of trials of done over the years in my career where there’s a case of malicious prosecution. And many criminal lawyers go through their entire career without one. So that’s the short answer to this in the sense the clients need to be slowed down, examine at the end of the case, and it’s probably not going to be there at the end of the case, take the win, you’ve been acquitted, go home, and put it behind you, is usually the best advice to give to this case. Now having said that, on the right facts, yes you can, prove malicious prosecution, but that test is such high level, in the ninety nine point nine percent of cases, it’s not going to be there.
