Malicious Prosecution - becoming an impossible tort for false claims of SA?
Hello,
I was reading Emma Joyce Jansen et al v. J.T et al, 2026 ONSC 1304
https://www.canlii.org/en/on/onsc/doc/2026/2026onsc1304/2026onsc1304.html
and it seems that the defendant was giving every leeway possible for the this civil case to be dismissed. For each case of malicious prosecution of a false allegation of sexual assault, it seems judges are making it more and more difficult for the falsely accused to be granted relief of the suffered tort.
Am I reading this wrong?
>[43] The police did not charge Ms. Jansen promptly after J.T. provided their video-recorded statement on August 26, 2022. Rather, the case was assigned to Detective Rabishaw “for further investigation,” according to Detective Rabishaw’s supplementary report. Detective Rabishaw’s reports form part of the plaintiff’s record on this application. These reports demonstrate that the police did more than merely accept J.T.’s allegation at face value. Detective Rabishaw was aware that when J.T. was 12 years old, they got into a lot of trouble at school, and that their behaviours were very problematic, such that they could not be trusted to be with anyone. She knew this because J.T. told her about their behavioural issues. At the conclusion of the interview, Detective Rabishaw told J.T. and their father that “usually we consult with the victim as to what they would like; however, given the role that Ms. Jansen plays in the community I will make decisions as to what is best for the community.” Detective Rabishaw continued her investigation after the charges were laid. She obtained several production orders and interviewed potential witnesses.
>[45] The plaintiff has not provided any evidence that J.T. had an improper motive and acted with malice when they made their complaint to the police. Rather, the plaintiff relies on evidence led at the plaintiff’s criminal trial about J.T.’s general character and reputation for dishonesty as a 12-year-old child from witnesses who had no contact with J.T. since they were 12 years old. The plaintiff asks me to infer from that evidence that J.T. had an improper motive and acted with malice and thereby compromised the police investigation four years later. I am unable, and decline, to make that inference.
It seems the witnesses that were interviewed were not really witnesses but more hearsay sources? Further, this might be the part that is somewhat most convincing in terms of dismissing this lawsuit but I doubt one will find a police officer that will honestly state that they conducted no investigation whatsoever.
Also, as per https://www.canlii.org/en/on/onsc/doc/2025/2025onsc5760/2025onsc5760.html?#par186
>[186] The limits on the police’s discretion to lay charges may also be a relevant factor in determining whether a private person initiated a prosecution. In D’Addario (ONSC), at paras. 26-33, the court listed domestic assault, sexual assault on a minor, and sexual assault when there are no other witnesses, as examples of complaints where the police can be said to have no independent discretion in laying a charge because of their mandatory nature. The argument that police officers have no discretion in laying charges for domestic violence in Ontario was raised by the plaintiff to establish the initiation requirement in Bobel v. Humecka, Patten, 2021 ONSC 852, at para. 124. [...]
As above, according to D'Addario, which the judge referenced, "sexual assault on a minor" are examples of complaints where police can be said to have no discretion in laying a charge because of their mandatory nature. So even if the police conducted some investigation, does it overrule the mandatory nature of the allegation?
Even if the police found nothing, which seemed to be the case here, they would still proceed with the charge.
Back to https://www.canlii.org/en/on/onsc/doc/2026/2026onsc1304/2026onsc1304.html
>[55] "First, while J.T.’s expression initiated the police investigation, J.T. did not initiate the prosecution. My reasons for that conclusion have been previously explained. The intervening involvement of various state actors that controlled whether charges would be laid and would proceed eroded the causal link between J.T.’s complaint and the harm suffered".
This doesn't make sense to me. Isn't initiating the police investigation the same as initiation the prosecution as the police investigation is the first step in a prosecution? D'Addario, Sethi v Kaur, and malicious prosecution case law seem to say so.
As per https://www.canlii.org/en/on/onsc/doc/2025/2025onsc5760/2025onsc5760.html?#par179
>[179] The Court of Appeal for Ontario held in Konstan v. Berkovits 2024 ONCA 510, 172 O.R. (3d) 524, at para. 32, as a general rule, the Court will view the police officer who laid the charge as having initiated the prosecution. However, there are a narrow set of “exceptional circumstances” where private citizens will be taken to have initiated a prosecution even though they did not lay the charges that commenced the prosecution.
>[180] A non-exhaustive list of the exceptional circumstances was set out in Kefeli v. Centennial College of Applied Arts and Technology, 2002 CanLII 45008 (Ont. C.A.), at para. 24, including the following:
>a. the complainant desired and intended the plaintiff to be prosecuted;
>b. the facts were so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor or police officer to exercise any independent discretion or judgment in determining whether or not to lay the charge (the “virtually impossible standard”); and
>c. the complainant procured the institution of proceedings by the professional prosecutor or the police officer, either by furnishing information relevant to the determination of whether or not the charge should be laid that he knew to be false, or by withholding information that he knew to be true, or both.
This seems to be the case with Emma Joyce Jansen et al v. J.T et al, 2026 ONSC 1304, where JT was shown to have met these 3 requirements, and yet the judge states that JT did not initiate the prosecution. Is this not an error?
As per https://www.canlii.org/en/on/onsc/doc/2025/2025onsc5760/2025onsc5760.html?#par61
>[61] "[...]Permitting the plaintiffs’ action to proceed against J.T. would have a chilling effect on victims of sexual assault and would fly in the face of changes in the law relating to the investigation and prosecution of sexually based offences."
This just seems like a cop-out. Basically, if you falsely accuse someone of sexual assault, regardless of how strong the case against you, in the interest of avoiding a "chilling effect", the lawsuit ends up simply dismissed.
Thoughts? I find this quite interesting. It's as if slowly but surely, the already onerous malicious prosecution tort is becoming impossible to action if it has anything to do with sexual assault.