Malicious prosecution is a significant concern for many individuals who find themselves wrongfully accused of crimes, ranging from sexual assault to domestic violence and other serious allegations. The path to pursuing a lawsuit for malicious prosecution comes with challenges that require a deep understanding of the legal standards and process involved.

The Concept of Malicious Prosecution

Understanding Malicious Prosecution

Malicious prosecution involves initiating legal action against the Crown, police, or complainants for wrongfully pursuing criminal charges. The aim is to seek damages for false allegations, but the criteria for proving such cases are stringent and complex.

The High Standard of Proof

To succeed in a malicious prosecution lawsuit, one must meet a very high level test that is difficult to prove. To meet this test, a plaintiff must be able to present evidence that the prosecution was pursued with malice and without reasonable grounds, which is an extremely rare case.

The Challenges of Proving Malicious Prosecution

Rare Judicial Criticism

It’s uncommon for judges in criminal trials to criticize law enforcement or the Crown or to label complainants as dishonest, even in cases where reasonable doubt leads to acquittal. This makes it challenging to establish the groundwork for a malicious prosecution claim.

Notable Cases and Outcomes

While there have been  successful malicious prosecution cases, such as the famous criminal case involving nurse Susan Nelles in Ontario (one of the longest preliminary hearings in Canadian history), these instances are rare. Nelles’ lawsuit highlighted the malicious intent by the Crown and police in her wrongful accusation, leading to a significant damages settlement.

Legal Advice and Realistic Expectations

Prioritizing Defence in Criminal Cases

For those adamant about their innocence and eager to pursue legal action against their accusers, the primary focus should remain on securing an acquittal in the criminal case. The possibility of a malicious prosecution claim should be considered only after the conclusion of the criminal proceedings.

The Rarity of Malicious Prosecution Claims

Statistics indicate that successful malicious prosecution lawsuits are exceedingly rare within the Canadian criminal justice system. Many criminal lawyers may never encounter a case that meets the criteria for pursuing such a claim throughout their careers.

While the right facts can potentially lead to a successful malicious prosecution lawsuit, the reality is that such outcomes are extraordinarily rare. The high threshold for proof means that, in the vast majority of cases, the best course of action for wrongfully accused individuals is to focus on their criminal defence and, upon acquittal, to move forward with their lives. For those considering such a lawsuit, thorough consultation with an experienced legal professional is essential to assess the viability of their case and to navigate the complexities of the legal system.

Video Transcription:

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. 
By Published On: July 27, 2023Last Updated: July 21, 2025Categories: Mischief, Video

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