3) False Imprisonment

The tort of false imprisonment protects a person's individual liberty. A direct intentional [Note 21: There continues to be some doubt on the point, but a direct negligent imprisonment is probably actionable as a false imprisonment or, where there is damage, in negligence.] imprisonment of another person is a false imprisonment. It is actionable without proof of damage. There must be a complete restriction on the plaintiff's physical liberty. This was established in Bird v. Jones. [Note 22: (1845), 7 Q.B.R. 742, 115 E.R. 668 (Q.B.).] In that case, the plaintiff was partially obstructed from exercising a public right of passage across a bridge. There was nothing, however, preventing him from passing around the obstruction and continuing across the bridge. It was held that a partial obstruction and disturbance of a right of way is not a false imprisonment. There must be a complete detention of the plaintiff. [Note 23: If the detained person has a reasonable and safe means of escape, he is not imprisoned for the purposes of this tort.] Bird has stood unchallenged for 150 years for good reason. It must be remembered that false imprisonment is actionable without proof of damage. It is neither good sense nor good policy to make every obstruction in the modern urban environment actionable. If an obstruction causes damage, a remedy may be available under negligence or public nuisance.

Physical imprisonment in a room or a building is not necessary. A person may be imprisoned on an aircraft, in a motor vehicle, or on a boat. The use of restraints in health-care facilities is a false imprisonment. Imprisonment can also be psychological. This may arise when a suspect is asked to accompany a store detective or a police officer for questioning. If the person goes freely and voluntarily to deal with the matter there is no imprisonment. If, however, the person is intimidated by a show of authority, afraid of the consequences of refusal, apprehends the use of force, or is seeking solely to avoid public embarrassment, he may be imprisoned and the defendant will be required to justify the detention on the ground of her legal authority to arrest the person.

There is no Canadian authority on whether or not the plaintiff must be conscious of his imprisonment. The strong protection that the law has traditionally given to personal liberty suggests that an awareness of the confinement is not necessary. This would be consistent with the most recent English authority on the point. [Note 24: Murray v. Ministry of Defence, [1988] 1 W.L.R. 692 (H.L.). ] Consequently, a remedy is probably available to kidnapped infants and mentally incompetent adults who, because of age or an illness such as Alzheimer's disease, are unaware of their detention.

It should be noted that the word "false" in false imprisonment is misleading. The plaintiff is required only to prove a direct imprisonment. "False" suggests that it was unjustified because of a lack of consent or legal authority to imprison. These are, however, defences that must be proved by the defendant. The defendant also carries the burden of showing that her actions were neither intentional nor negligent.

4) Malicious Prosecution

The tort of malicious prosecution reflects a delicate balance between two important and competing interests. The first interest is the freedom of individual citizens from groundless criminal prosecutions that may result in damage to their reputation, a loss of liberty, and financial loss. The second is the public interest in the effective and uninhibited prosecution of criminal wrongdoing. The tort of malicious prosecution strongly favours the public interest by protecting prosecutors from liability unless the prosecution was brought maliciously and without reasonable and probable cause.

This position was originally justified on the need to encourage private citizens to assist in bringing criminals to justice. In the past, considerable reliance was placed on the assistance of private citizens and the bringing of private prosecutions to enforce the criminal law. It was believed that imposing liability for mistakes or carelessness on the part of private prosecutors might inhibit voluntary and cooperative conduct. Today, of course, the criminal justice system is administered by professional governmental officials such as police officers and government prosecutors. There is less reliance on private citizens and private prosecutions are largely a thing of the past. Nevertheless, the traditional deference paid to prosecutors continues. To some extent, the old policies remain valid. The courts continue to be reluctant to create undue impediments to the cooperation and assistance of private citizens in bringing offenders to justice. Of greater importance, however, is a new set of policies that seek to justify the same degree of protection for public prosecutors in a professionalized criminal justice system. These policy concerns include the need to protect the independence of public prosecutors, the chilling effect that potential civil liability may have on the work of public prosecutors, the difficult discretionary decision making required of prosecutors, the prospect of a flood of litigation, and the inherent difficulties public prosecutors encounter in balancing their dual and sometimes competing responsibilities as advocates for the prosecution and as officers of the court. Indeed, until relatively recently, these policy factors sustained an absolute immunity of attorneys general and Crown prosecutors from any civil responsibility. This immunity was finally abolished by the Supreme Court in Nelles v. Ontario. [Note 25: [1989], 2 S.C.R. 170 [Nelles].] Today, all prosecutors, both public and private, are subject to liability under malicious prosecution.

The requirements of malicious prosecution are well established. The plaintiff must prove that the defendant initiated the proceedings against the plaintiff, that the proceedings terminated in the plaintiff's favour, that there was no reasonable and probable cause for the proceedings, that there was malice on the part of the defendant, and that the plaintiff sustained damage. [Note 26: See Nelles, ibid., Lamer J., for a general outline of these principles. ] These criteria are notoriously difficult to establish but the courts to date have exhibited little enthusiasm to relax them and widen the scope of liability. Each requirement deserves brief comment.

a) Institution of the Proceedings by the Defendant

The defendant must have instigated the proceedings. This means that the defendant must have been actively instrumental in bringing a prosecution. Laying an information or bringing a charge against the plaintiff is sufficient. Merely providing information to the police is normally not sufficient unless a false report is deliberately given to the police for the purpose of prompting a wrongful prosecution. Malicious prosecution has been restricted to criminal and quasi-criminal proceedings and has not generally been applied to civil litigation. This is explained in part by the serious threat to liberty, reputation, and wealth posed by criminal prosecutions.

b) Termination of the Proceedings in the Plaintiff's Favour

The proceedings must have terminated in the plaintiff's favour. A conviction that has not been set aside forecloses an action in malicious prosecution. A conviction indicates that there was reasonable and probable cause for the proceedings, and it deprives the plaintiff of the claim of innocence which is the foundation of the action. It is not, however, necessary that the plaintiff be acquitted on the merits. A discharge at a preliminary hearing, a stay of prosecution, a successful appeal, or an acquittal on a technicality are sufficient to satisfy this element of the cause of action. A malicious prosecution action may also be available in those cases where, after conviction and a long period of imprisonment, new evidence comes to light which exonerates the accused and results in the conviction being set aside. [Note 27: These situations are now generally remedied by a negotiated compensation package from government: for example, the recent settlement between David Milgaard and the government of Saskatchewan.]

c) Lack of Reasonable and Probable Cause

It is not easy to prove that the defendant had no reasonable and prob- able cause to bring the proceedings. The concept has a subjective element, requiring an actual belief in guilt, and an objective element, requiring a rational basis for that belief. The plaintiff must, therefore, prove either the absence of an honest belief in guilt on the part of his accuser or the absence of a reasonable basis for such a belief. Roberts v. Buster's Auto Towing Service Ltd. [Note 28: (1976), 70 D.L.R. (3d) 716 (B.C.S.C.).] is illustrative. In that case, the plaintiff's rental car had been towed to the defendant's compound because of a parking violation. The plaintiff went to retrieve the vehicle, and as he drove out of the exit of the compound, he paused to see if the lane was clear. At that moment an employee of the defendant activated an automatic gate which threatened to hit the car. The plaintiff tried to avoid the gate by driving off but he was unsuccessful and both the gate and the car were damaged. The defendant's employee swore an information alleging that the plaintiff had wilfully damaged the gate. Clearly, on the facts, the employee had neither an honest belief in the plaintiff's guilt nor any reasonable basis to believe in his guilt.

d) Malice

The defendant must be motivated by malice. Motive is not usually a relevant factor in tort law. An invasion of a protected interest for good or bad reasons is equally wrongful in most circumstances. Malicious prosecution is exceptional in this regard. Malice includes the colloquial notion of spite, ill will, and vengeance but also extends to any improper purpose. The proper purpose of a prosecution is to bring an offender to justice and to enforce the criminal law. Consequently, to instigate a prosecution to secure a private collateral benefit, to coerce a person into a desired course of conduct, or, as in Roberts, to shift the blame for causing damage to property to an innocent person is an improper purpose.

e) Damage

Malicious prosecution is not actionable without proof of actual damage such as loss of reputation, loss of liberty, or financial loss. [Note 29: Financial loss includes the costs of defending the criminal prosecution.] In most cases of malicious prosecution there is no difficulty in establishing one or more of these heads of damage unless the baseless prosecution is terminated almost immediately after its commencement.

An argument can be made for a relaxation in the requirements of malicious prosecution. The expansion of negligence into all professional activities suggests that liability for a negligent prosecution may be appropriate. [Note 30: J. Sopinka, "Malicious Prosecution: Invasion of Charter Interests: Remedies: Nelles v. Ontario: R.v. Jedynack: R. v. Simpson" (1995) 74 Can. Bar Rev. 366 at 371-72.] This would increase the protection of innocent persons and provide an incentive for prudent and soundly based prosecutions. One step in this direction is the recognition that the police may be liable in negligence where unsubstantiated charges are laid as a consequence of a negligent investigation. [Note 31: Beckstead v. Ottawa (City) Chief of Police (1997), 37 O.R. (3d) 62 (C.A.), aff'g (1995), 37 O.R. (3d) 64 (Gen. Div.).]