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JUSTICE REPORTER

Crown attorneys are breathing easy today after a Supreme Court of Canada ruling made it exceedingly difficult to sue them for malicious prosecution.

The 7-0 ruling overturned a finding of civil liability against a Saskatchewan prosecutor who had pursued a bizarre case where children claimed to have been sexually abused and forced to participate in mutilation and ritualistic killings of animals, dismemberment of babies and drinking of human blood.

The court said prosecutors are immune from civil liability unless it can be shown they acted for an improper purpose such as vengeance or career promotion, said Paul Cavalluzzo, a lawyer for the Canadian Association of Crown Counsel.

"There now has to be almost a deliberate fraud on the administration of justice," Mr. Cavalluzzo said. "Those are pretty strong words."

However, advocates for the wrongfully convicted expressed disappointment that it has become virtually impossible to sue prosecutors for reckless or overzealous conduct.

"Given this ruling, the ongoing problem of wrongful convictions will have to be addressed in other ways," said Sean Dewart, a lawyer for the Criminal Lawyers' Association. "We are hopeful that governments will now step forward with meaningful initiatives. The proper funding of legal aid would be a good first step."

The Saskatchewan Crown attorney at the centre of the case - Matthew Miazga - had been found liable for maliciously prosecuting the foster parents of three siblings who complained of being abused.

The plaintiffs, Anita and Dale Klassen, alleged Mr. Miazga had pursued the case despite a lack of evidence and little chance of conviction.

The judge who presided at the lawsuit agreed. He found Mr. Miazga liable on the basis that no one could seriously have believed that such wild allegations could form the basis of a successful prosecution.

"The trial judge pointed to the ritualistic and satanic aspects of the allegations, the rote manner in which the children recalled the abuse, and the fact that, if the children's stories were accepted, twelve individual adults, many with young children of their own, were routinely abusing the children in the same fashion in different houses while other adults were present," Madam Justice Louise Charron said in yesterday's ruling.

Judge Charron said that, by requiring plaintiffs to show that prosecutors willfully perverted the responsibilities of their office, it will prevent prosecutors being found liable simply because of "incompetence, inexperience, poor judgment, lack of professionalism, laziness, recklessness, honest mistake, negligence, or even gross negligence."

In all, 70 charges were laid against the biological parents and foster parents of the three siblings in the case. The biological parents were convicted of several counts of sexual assault in 1992. The charges against Mr. and Ms. Klassen were stayed.

The children subsequently recanted their allegations.

"There is no question that the respondents were the victims of a clear miscarriage of justice which undoubtedly had a devastating effect on their lives," Judge Charron said yesterday.

"The fact that we now know that the children's allegations of sexual abuse were false, however, does not provide the answer to whether the respondents' action in malicious prosecution against the Crown prosecutor can succeed."

Mr. Cavalluzzo said malicious prosecutions against Crown counsel have been steadily rising. In Ontario, for example, 107 malicious prosecution lawsuits are currently in progress against a number of the province's 800 prosecutors.