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ABUSE OF LEGAL PROCEDURE OR PROCESS - Want of reasonable and probable cause - Defences

Friday, August 13, 2021 @ 5:33 AM  


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Appeal by the plaintiff from summary judgment dismissing his action for malicious prosecution. The appellant was charged with sexual assault and uttering death threats based on allegations of his estranged spouse. The allegations were made during contested family law litigation. There were inconsistencies between the complainant’s various affidavits, witness statements and testimony. The respondent was the Crown prosecutor who had carriage of the file. The appellant repeatedly tried to persuade the respondent that the allegations were without foundation. The appellant was acquitted on all counts. The trial judge described the Crown’s case theory in relation to the sexual assault charges as bordering on the impossible. The appellant then commenced the present action. The application judge found the respondent credible and found she could have honestly believed that it would be possible to prove the appellant’s guilt beyond a reasonable doubt. The appellant argued the application judge erred by failing to consider the complainant said in an interview that she remembered the sexual activity in question and that it was consensual, that the investigating officer told the complainant that the complainant did not remember and that the sexual activity could not have been consensual, and that the respondent approved of this and used the resulting testimony.

HELD: Appeal dismissed. The application judge did consider the evidence relating to the interview and specifically referred to the respondent as having been cross-examined as to why she relied on answers given by the complainant at that interview which were suggested to her by the officer. The application judge expressly referred to the fact that the respondent did not comment on or caution the investigating officers on the interview techniques employed in the second interview where answers were suggested to the complainant and the effect that technique might have on the reliability of those answers. The appellant did not challenge the finding of fact that the respondent had a subjective belief that there was just cause to prosecute on any other ground, whether based on the fantastic nature of the allegations or otherwise. Given that the respondent had this honest subjective belief, she must be found to have initiated and continued the prosecution of these charges for the proper purpose of carrying the law into effect, and the action against her must fail.

A.B. v Rodgers, [2021] S.J. No. 292, Saskatchewan Court of Appeal, R. Leurer, B. Barrington-Foote and J.D. Kalmakoff JJ.A., July 7, 2021. Digest No. TLD-August92021009