When someone is charged with a crime in Canada, they trust that the justice system will treat them fairly. But sometimes, mistakes happen — and worse, sometimes charges are pursued without a proper reason. In rare cases, a person who has been wrongly prosecuted can make a legal claim called malicious prosecution.
This blog will explain what malicious prosecution means in Canada, how it relates to a criminal appeal, and what you need to prove if you believe you were the victim of it.
What Does Malicious Prosecution Mean?
Malicious prosecution happens when someone is wrongly made to face criminal charges, not because they did something wrong, but because someone acted with a bad purpose — like to punish, harass, or embarrass them.
In Canada, the courts have created strict rules for when someone can sue for malicious prosecution. The main case that explains these rules is Nelles v. Ontario from the Supreme Court of Canada (1989). In that case, the Court said that just because a charge was unsuccessful doesn’t automatically mean the prosecution was malicious. The law protects prosecutors who make honest mistakes, but it does not protect actions driven by bad faith.
How is Malicious Prosecution Different from a Regular Appeal?
A criminal appeal is when someone asks a higher court to review their conviction or sentence because they believe the trial was unfair or mistakes were made. It focuses on errors in the legal process — like the judge giving wrong instructions to a jury or important evidence being wrongly allowed.
Malicious prosecution is different. It is not about fixing a mistake in the trial. It is a lawsuit against the people responsible for bringing the charges in the first place — usually police officers or Crown prosecutors — after the criminal case is over. You are saying they started the case against you for the wrong reasons, and you are asking for compensation (money) for the harm you suffered.
What Do You Have to Prove?
In Ontario, and across Canada, there are four things you must prove to succeed in a malicious prosecution claim:
- The prosecution was started by the defendant.
You must show that the person you are suing played a direct role in starting or continuing the criminal case against you. - The prosecution ended in your favour.
This usually means you were found not guilty, or the charges were withdrawn or stayed (stopped) by the Crown. - There was no reasonable cause to charge you.
You must prove there wasn’t enough evidence for a reasonable person to believe you committed the crime. - The defendant acted with malice.
This is the hardest part. You must show that the person acted for a reason other than simply enforcing the law — like anger, personal gain, or some other improper purpose.
These requirements were confirmed by the Supreme Court of Canada in cases like Proulx v. Quebec (Attorney General) (2001). Courts have made it clear that malicious prosecution is hard to prove because prosecutors and police need to be free to do their jobs without fear of constant lawsuits.
Why Might Someone Raise Malicious Prosecution After an Appeal?
Sometimes, after winning an appeal and having a conviction overturned, a person might feel that the charges should never have been laid at all. If there is evidence that police or prosecutors acted unfairly or dishonestly from the beginning, a malicious prosecution lawsuit might be possible.
However, even if your conviction was overturned, it does not automatically mean there was malicious prosecution. You still have to prove all four elements listed above.
If you need a strong legal defence team, our lawyers at Collett Read LLP are here to help. Give us a call at (905) 541-2228 or fill out a form for a free consultation.
