Unwarranted Criminal Prosecution

A malicious prosecution occurs when a police officer or other government official causes criminal charges to be filed against a person when the official knows reasonable and probable cause is lacking and the charges are filed because of malice, personal animosity, bias, or some other reason outside the interests of justice. Malice in the form of improper purpose is the key to proving malicious prosecution. In such cases, the victim’s Charter “right to life, liberty and security of the person” has been violated.

A sentencing judge is called on to undertake a fundamentally different analysis when sentencing Indigenous offenders because of their unique circumstances. Such an analysis must begin with an assessment of the degree to which systemic and background factors unique to Indigenous offenders have played a role in the accused's life and appearance before the court. Any such analysis must be informed by the model of "restorative justice" emphasized in many Indigenous cultures and as an element of the Criminal Code, which is grounded in a need for offenders to take personal responsibility for their actions and by a desire to heal the victim, offender and community. 

For Black Canadians, the time has come where a sentencing judge must take judicial notice of such matters as the history of colonialism (in Canada and elsewhere), slavery, policies and practices of segregation, intergenerational trauma, overt and systemic racism and how that has translated into socio-economic ills and higher levels of incarceration. The remedial nature of section 718.2(e) of the Criminal Code provides the authority for the court to address the disproportionate imprisonment of Black Canadians. While Parliament did single out Indigenous people for special attention, its enactment benefits all offenders. The framework set out in the Supreme Court of Canada’s decision in R. v. Gladue can provide very useful guidance.  Sentencing judges are also increasingly considering Impact of Race and Culture Assessments, which play a vital part in understanding the role systemic racism has on the day-to-day lives of Black Canadians.