The Illusionary Tort of Malicious Prosecution

The right to an attorney upon arrest is breached on a daily basis by the police without any malicious intention. The police breach this fundamental right by simply refusing to allow an accused to speak to his attorney after he is detained (see for example Labarge v. The King¹). It is submitted that Crown prosecutors also breach the right to an attorney in a less direct and obvious manner. For example, in R. v. Delchev², a Crown prosecutor made an offer for a more lenient sentence directly to an accused, notwithstanding that he was represented by an attorney, conditional upon him testifying against his attorney. The Judge concluded that this behaviour by the Crown prosecutor was serious enough to put aside settlement privilege in order for the Court to appraise the conduct of the Crown prosecutor to establish whether or not an abuse of process had occurred and a stay of proceedings was warranted. The author will argue that another manner by which the right to an attorney could be violated by a Crown prosecutor is to file a motion to declare the lawyer of the accused unable to act for strategic reasons on the pretext that there is a potential conflict of interest between two (2) or more co-accused. The author will argue that these types of strategic motions which are sometimes filed by the Crown to prevent the accused from having their lawyer of choice such that the accused can no longer defend themselves against the criminal charges. The author believes that conduct should not be condoned by the courts. The author will argue that in certain cases if the Crown prosecutor intentionally tries to deny an accused his right to council of choice, the tort of malicious prosecution should be applicable. However, as will be demonstrated the threshold is so high that it is almost impossible to succeed in an action for the tort of malicious prosecution.