Canada needs to steady the pendulum on child sex-abuse prosecutions, not swing wildly in the hysteria of the moment. Malicious-prosecution lawsuits against Crown attorneys who act in good faith, if wrong-headedly, in bringing false child-abuse allegations to court, could produce a chill in the deserving prosecutions of child abuse.
For that reason, it is good that the Supreme Court of Canada overturned a finding of malicious prosecution in a lawsuit against a Crown attorney in Saskatoon. The chill created by finding malice where there was none could have left this country's children back where they started a generation ago, before the decades-long abuses at the Mount Cashel Boys Home in St. John's were revealed in 1989.
The Saskatoon criminal case never should have been brought. It began with allegations of extreme abuse such as eating eyeballs and participating in orgies, made by three siblings against their foster parents and those foster parents' extended family, 12 people in all. Why were charges laid? It happened not long after the Criminal Code was amended so that children's statements about abuse did not have to be corroborated by other evidence. There was a popular notion, now debunked, that children do not lie about abuse, the Supreme Court noted. In the early years after the Mount Cashel abuses were set out before the country in a judicial inquiry, investigators pushed and prodded children to tell them what they wanted to hear.
Most of the charges in the Saskatoon case were ultimately dropped before trial, and the children later recanted. Such false charges, though, can destroy lives.
But what was the evidence of malice? The trial judge said the allegations were inherently unbelievable. And the Crown attorney, Matthew Miazga, did not say during the lawsuit that he believed in the "probable guilt" of the accused individuals. Even if he had, the trial judge said, it wouldn't have mattered, since the allegations were so dubious.
This is to answer injustice with injustice. When the investigating police officer came to Mr. Miazga for advice, the officer was told to lay charges if he believed the children; he did believe them. Separate charges against the biological parents and the mother's boyfriend reached the Supreme Court, which found the children's evidence in those cases credible. Inherently unbelievable or not, some people found them worthy of belief. Mr. Miazga rejected some allegations, but believed others. In any event, it is his professional judgment that matters, not his personal opinions, the Supreme Court said. A prosecutor needs to act impartially, based on his appraisal of the strength of the evidence.
Abuse allegations were once widely suppressed, then too easily manipulated and believed. Concern over wrongful prosecutions should not lead the country back to the days when abusers had a free hand.