Bennett v Treit, 2023 ABKB 348

Court of King’s Bench of Alberta Citation: Bennett v Treit, 2023 ABKB 348 Date: 20230608 Docket: 1806 00407 Registry: Lethbridge Between: Daniel Francis Bennett Plaintiff - and - Lee Treit, Lloyd Plomp, Ken Carriere, Roger Chaffin, Chief of Police of the Calgary Police Service, Jason Walper, Robert Davis, Chief of Police of Lethbridge Police Service, Paul Broadhead, Royal Canadian Mounted Police, Attorney General of Canada, Susan Karpa, Ryan Persad, Janice Rea, Rajbir Dhillon, Alberta Crown Prosecution Service, Attorney General of Alberta Defendants _______________________________________________________ Memorandum of Decision of the Honourable Justice J.C.

Kubik _______________________________________________________ I. Introduction [ 1 ] On February 21, 2017, Daniel Francis Bennett (“Bennett”) was acquitted of 11 criminal offences, including trafficking firearms, attempted fraud over $5000.00 and public mischief. The prosecution’s case relied heavily on the evidence of Danny Stephan (“Stephan”), a witness of unsavoury character, who had entered an Immunity Agreement (“IA”) with the Attorney General of Alberta. [ 2 ] Following his acquittal, Bennett filed a civil action against various government, Crown, and police defendants.

He claims damages in excess of 2 million dollars for false arrest, malicious prosecution, negligent investigation, misfeasance in public office, civil

conspiracy, and infringement of his right to be secure against unreasonable search and seizure pursuant to the Canadian Charter of Rights and Freedoms . [ 3 ] Bennett filed his Statement of Claim on June 15, 2018, and an Amended Statement of Claim on September 20, 2018.

He has discontinued his action against the Attorney General of Canada, Royal Canadian Mounted Police, and Paul Broadhead. [ 4 ] Three broad groups of defendants remain: • The Alberta defendants (“AB Defendants”) which include the Attorney General of Alberta; the Alberta Crown Prosecution Service; and 4 named Crown Prosecutors: Susan Karpa, Ryan Persad, Janice Rea, and Rajbir Dhillon. • The Calgary Police Service defendants (“CPS Defendants”) which include Roger Chaffin, Chief of Police of the Calgary Police Service; Lee Treit; Lloyd Plomp; and Ken Carriere. • The Lethbridge Police Service defendants (“LPS Defendants”) which include Robert Davis, then Chief of Police of Lethbridge Police Service and Jason Walper. [ 5 ] These remaining defendants seek

summary dismissal of Bennett’s actions against them pursuant to Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 . II. Factual Overview [ 6 ] At all times material to these proceedings, Bennett was a retired Lethbridge Police Service (“LPS”) officer. In his retirement he operated a security firm and was an employee of Bull’s Eye Bill’s Trading Post (“Bull’s Eye”), a business operated by Bill Bracher (“Bracher”) for the purpose of buying and selling firearms. Bennett was acquainted with Stephan through firearms trade shows. i. Operation Red Heat [ 7 ] Stephan was a resident of Hill Spring, Alberta.

On June 22, 2010, he was arrested during “Operation Red Heat”, a Calgary Police Service (“CPS”) undercover operation into weapons trafficking. On that date, CPS officers observed various individuals, including Stephan, Mikkel Rydstrom-Poulsen, Andrew O’Neal-Cox, and Ahmed Zaghloul transfer firearms in a parking lot in Calgary, Alberta. Stephan was charged with 55 Criminal Code offences, associated with trafficking, illegal possession, improper storage, and defacing of firearms.

At the time of his arrest, Stephan was already prohibited from possessing firearms as a result of a 2007 conviction for careless use of a firearm, and was under investigation by the RCMP in relation to the illegal importation of firearms into Canada. [ 8 ] Amongst the firearms alleged to have been trafficked by Stephan were 4 Glock handguns and a Polish semi-automatic pistol, all registered to Bennett. On the date of Stephan’s arrest, telephone calls were made and received between telephone numbers associated to Bennett and Stephan.

During a subsequent search of Stephan’s Hill Spring residence, a wooden box, bearing Bennett’s name and address, and containing two empty Glock boxes was recovered. When questioned, Stephan told CPS that Bennett supplied him with the trafficked firearms, as well as a Glock handgun recovered from Stephan’s vehicle, which was later determined to have originated in the United States. He said the two had an agreement to traffic the firearms. [ 9 ] On July 2, 2010, Bennett reported to LPS that his garage had been broken into and 55 firearms had been stolen.

He alleged that this occurred between June 17, 2010, and July 1, 2010, and had gone undiscovered until the date of his report. Bennett also reported this theft to his insurance company. LPS commenced an investigation into this complaint. So too did his insurer. ii. Operation Southern Comfort [ 10 ] On July 27, 2010, CPS investigators received a report that the National Weapons Investigation Support Team had initiated an inspection of Bull’s Eye, as approximately 150 firearms were missing and unaccounted for.

This led CPS to commence “Operation Southern Comfort”, an undercover investigation of Bennett in relation to possible firearms trafficking. Stephan acted as an agent for CPS during this investigation. [ 11 ] On January 14, 2011, CPS obtained a KGB statement from Stephan in which he inculpated himself, described his knowledge of and relationship with Bennett, their agreement to traffic weapons, and the circumstances leading to his June 22, 2010, arrest. [ 12 ] On March 11, 2011, Stephan signed a Letter of Acknowledgment with CPS agreeing to act as their agent in Operation Southern Comfort.

In exchange he was provided with certain security and safety measures, including a home security system, an escort to and from court proceedings, as well as payment of outstanding legal fees to the lawyer who had assisted him with these matters. [ 13 ] Stephan interacted with Bennett on 5 separate occasions in an attempt to obtain inculpatory evidence for the police. The last of the agent scenarios was undertaken on May 13, 2011.

While no inculpatory evidence was elicited, and Bennett was rightfully suspicious that Stephan was an agent, during one operation, Bennett accepted $1000.00 cash from Stephan, which Stephan proffered as cash owed to Bennett on account of the weapons trafficking. When questioned by police, Bennett told them that he was merely collecting that money on behalf of a lawyer who had represented Stephan in relation to family law matters. [ 14 ] CPS interviewed the lawyer who denied receiving the funds from Bennett.

Coincidentally, three of the weapons trafficked by Stephan were sold to Bennett by that lawyer on June 17, 2010. [ 15 ] On August 5, 2011, the Attorney General of Alberta entered the IA with Stephan. Both parties to the IA were represented by counsel. In signing the IA, Stephan was granted immunity from prosecution in exchange for providing complete and truthful testimony

in criminal proceedings against Rydstrom-Poulsen, Zaghloul, O’Neal-Cox, and Bennett. Further, Stephan acknowledged that he had provided full and frank disclosure regarding his own criminal history and offences alleged against the parties he agreed to testify about.

He also agreed that if he failed to testify or be truthful in his testimony, the IA would be terminated and he could be prosecuted for perjury, as well as those matters for which he had been granted prosecutorial immunity. [ 16 ] Concurrently, LPS was investigating Bennett’s break and enter complaint, however their investigation ran cold in mid-July 2010. A canvass of the neighbourhood turned up no leads and a Crime Stoppers tip proved fruitless. An investigator retained by Bennett’s insurance company interviewed Bennett, his wife, and Bracher.

While the investigator considered Bennett’s claim to be legitimate, he expressed concerns that Bracher’s statement was rehearsed, and had been informed by a prior discussion with Bennett. [ 17 ] As a result, CPS interviewed Bracher.

He provided a statement and later testified at the preliminary inquiry that Bennett had asked him to lie to the insurance company by telling them that he had retrieved various handguns from Bennett’s residence before the break and enter occurred, when in fact, he had retrieved those guns after the break and enter. [ 18 ] Apart from the trafficked weapons, up to the point of the criminal trial, no weapons alleged to have been stolen had been recovered. [ 19 ] On October 26, 2011, CPS charged Bennett with 9 counts of weapons trafficking, pursuant to section 99(1) of the Criminal Code (the “2011 charges”). iii.

The Criminal Proceeding [ 20 ] The 2011 charges proceeded to preliminary inquiry on November 28 and 29, 2012, and October 15, 2013.

Prior to the conclusion of the preliminary inquiry, CPS charged Bennett with 7 additional charges, including attempted fraud and public mischief in relation to his break and enter complaint and his subsequent insurance claim (the “2013 charges”). [ 21 ] The evidence at the preliminary inquiry included that of the investigating officers involved in Operation Red Heat and Operation Southern Comfort, Stephan, the insurance investigator, and Bracher. [ 22 ] Bennett was ordered to stand trial on the 2011 charges. The Crown elected to proceed by way of direct indictment in relation to two of the 2013 charges.

The remaining 2013 charges were stayed. [ 23 ] The matter was originally set to proceed to trial on March 23, 2015, but was delayed by the Crown’s receipt of information regarding additional disclosure in the possession of the RCMP. These records were relevant to Stephan’s credibility as they disclosed information from an RCMP investigation, ongoing at the time of Stephan’s arrest, including information that he was being investigated on suspicion of smuggling weapons into Canada from the United States.

The trial was rescheduled to begin on June 8, 2015, but could not proceed as the disclosure issue was unresolved and an O’Connor application had not been filed by Bennett. On December 1, 2015, the RCMP produced 18 pages of redacted records from their investigation of Stephan. All disclosure obligations of the Crown were completed on December 9, 2015. [ 24 ] Bennett’s trial was heard between January 16 and 23, 2017. The fact that Stephan was a Vetrovec witness was well-known to the trial judge, who was provided with a copy of the IA and Stephan’s CPIC history.

Closing arguments revolved around the question of his credibility and whether there was sufficient confirmatory evidence to safely accept his evidence. [ 25 ] The trial judge made several salient findings. First, she did not believe Bennett’s evidence respecting the break and enter or the Proof of Loss he executed in relation to his insurance claim. She found his evidence to be inconsistent, incredulous, and nonsensical. While she did not believe Bennett, she found that she could not infer concoction of his story from disbelief.

She went on to consider the evidence of Bracher to determine whether it provided independent evidence of concoction. She found Bracher to be an honest witness, but found that his evidence was unreliable because he had no independent recollection of the timing of the events he testified to. Without proof of concoction, she found there was no evidence to confirm Stephan’s testimony. The trial Judge did not assess either the credibility or reliability of Stephan’s evidence.

Her indication that she required confirmatory evidence is indicative that she accepted the credibility frailties associated with Stephan’s testimony provided pursuant to the IA. [ 26 ] As a result, she found that the Crown had not proved its case beyond a reasonable doubt and Bennett was acquitted on February 21, 2017. III. Issues for Determination [ 27 ] Is there a genuine issue requiring trial or should Bennett’s action be summarily dismissed? [ 28 ] To determine this, I must analyze each tort alleged by Bennett: i. False Arrest ii. Negligent Investigation iii. Malicious Prosecution iv.

Misfeasance in Public Office v. Charter Breached

vi. Civil Conspiracy and determine if the defendants have established that there is no genuine issue requiring trial because: a. the various claims are statute barred by the Limitations Act, RSA 2000, c L-12 [Limitations Act]; and/or b. because Bennett has failed to prove one or more of the elements of each tort alleged? [29] In doing so, I must consider whether:

a) I can make the necessary material findings of fact, on a balance of probabilities, on the record before me;

b) I can apply the law to the facts or whether there is uncertainty in the law which leaves open a genuine issue requiring trial;

c) The process reflects a proportionate, timely and cost-effective means to achieve a just result;

d) Bennett has raised any factual, legal or credibility issues giving rise to a genuine issue requiring trial IV. Legal Principles with Respect to

Summary Dismissal [30] An applicant who establishes that there is no genuine issue requiring a trial is entitled to

summary judgment or dismissal.There will be no issue requiring trial when the judge is able to make the necessary findings of fact on the record before them, apply thelaw to those facts, and be satisfied that the process reflects a proportionate, timely and cost-effective means to achieve a just result:Hyrniak v Mauldin, 2014 SCC 7 [Hyrniak]. [31] Hyrniak has been refined by the Alberta Court of Appeal in the context of our own rules of court: Weir-Jones TechnicalServices v Purolator Courier Ltd, 2019 ABCA 49 [Weir-Jones].

In that case, the Court determined that the applicant’s burden of proofis on a balance of probabilities, both with respect to the factual elements of the case and the question of whether there is a genuine issuerequiring trial. The responding party must only demonstrate that the record, the facts or law, preclude a fair disposition: Weir-Jones, para32. In Weir-Jones the Alberta Court of Appeal set out a 4-part analysis, as follows:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or douncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issuerequiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, butmere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that thereis a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showingthat a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. Ifthere is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared toexercise the judicial discretion to summarily resolve the dispute. [emphasis in original] [32] As further noted in Hannam v Medicine Hat School District No 76, 2019 ABCA 49, at paras 147-151 [Hannam], neitherconflicting evidence nor issues of credibility preclude a

summary determination, provided they can be resolved on the evidence beforethe Court and leave no genuine issue for trial. The Court must be able to apply the law to the facts. There may be occasions where thestate of the law precludes

summary disposition. [33]

Summary dismissal is an available remedy based on a defence arising under the Limitations Act. The same principles apply:the applicant must prove, on a balance of probabilities, the facts necessary to establish the date at which the plaintiff had knowledge ofan injury caused by the defendant and resulting in damage, and that there is no genuine issue requiring a trial: Weir-Jones. Where it isplain and obvious on the record that an action is statute-barred,

summary dismissal should be granted: De Shazo v Nations EnergyCompany Ltd, 2005 ABCA 241 at para 17 [De Shazo]. [34]

Section 3 of the Limitations Act requires that a claimant must seek a remedial order within two years after the date on whichthe claimant first knew, or ought to have known, that he suffered an injury, attributable to the conduct of the defendant, and that theinjury warranted bringing a proceeding. [35] Discoverability for the purposes of triggering the limitation period does not require perfect knowledge: De Shazo, at para 31.It merely requires the material facts on which the cause of action is based, to be known or reasonably known by a claimant exercisingreasonable diligence: Central Trust Co v Rafuse, (SCC), [1986] 2 SCR 147.

As noted by Mah J in Raun v Shumborski,2019 ABQB 823, the degree of knowledge required is “reasonable awareness” and falls somewhere between suspicion and perfectknowledge. [36] Section 3(3) of the Limitations Act provides that in the case of a continuing series of breaches, the ultimate 10-year limitationperiod applies. This limitation period begins to run from the date of the negligent or wrongful act or omission and not the date uponwhich the claimant had knowledge of injury warranting the bringing of a proceeding: Bowes v Edmonton (City), 2007 ABCA 347.

[ 37 ] Multiple affidavits are before me in these proceedings. The most comprehensive of the materials are contained in the Affidavit of Crown Prosecutor, Rhabir Dhillon, whose affidavit contains all Crown disclosure made in the criminal proceedings against Bennett, as well as the transcripts of closing arguments at trial and the transcript of the oral reasons of the trial Judge. Other Crown affidavits exhibit various transcripts from the court proceedings, including the preliminary inquiry, O’Connor application and Jordan application.

Each Crown Prosecutor has averred positively to the fact that there is no merit to the claim. Each was also questioned on their respective affidavits and the questioning transcripts are in evidence. [ 38 ] Affidavit evidence was also filed on behalf of one of the LPS Defendants, Jason Walper, and the RCMP defendant, Paul Broadhead. Both were questioned on their affidavits. Finally, Bennett has sworn an affidavit in the proceedings. He was not questioned on it. [ 39 ] The CPS Defendants have not filed any affidavit evidence in support of their application.

Bennett argues that this should be fatal to their application based on Rule 7.3(2) and the fact that they are required to put their best foot forward. The CPS Defendants rely on the materials filed by the other defendants. [ 40 ] Rule 7.3(2) provides that an application must be supported by an affidavit swearing positively that one or more of the grounds for

summary judgment have been met or by other evidence to the effect that the grounds have been met. [ 41 ] The underlying factual basis of the CPS Defendants’ application can be discerned from the other affidavit evidence before the Court and the uncontroverted facts about the dates on which various events occurred. In addition, the allegations of malicious prosecution against the CPS Defendants and the AB Defendants, as well as the allegations of negligent investigation arise from common evidence. [ 42 ] As such, I am satisfied that the CPS Defendants can rely on the affidavit evidence filed by its co-defendants as the factual basis for their

summary dismissal application, and a stand-alone affidavit sworn by a CPS defendant is not a necessary precondition to an application under Rule 7.3 . V. Is This an Appropriate Case for

Summary Dismissal? [ 43 ] The primary issues raised by Bennett in his pleadings, affidavit, during Questioning on affidavits, and in argument on this application relate to the credibility of Stephan, the IA he entered with the Attorney General, and the reliance placed by police and Crown on Stephan’s evidence in the investigation and trial of Bennett.

These issues have been fully explored in the evidence placed before me which includes sworn evidence, extensively cross-examined upon. [ 44 ] The question of whether the plaintiff has put forward the necessary factual evidence to prove the elements of the various torts alleged can also be determined on this record.

With respect to the limitation issues, the chronology of events is not in dispute and the law regarding when the various causes of action commence to run can be applied to these facts. [ 45 ] Bennett has not raised any other issues with respect to credibility, the weighing of evidence or uncertainty in the law that would require adjudication by way of a full trial. I am satisfied therefore that

summary adjudication reflects a proportionate, timely and cost-effective means to achieve a just result. [ 46 ] My analysis as to whether the various actions are statute-barred and /or the elements of the torts alleged are proven is set out in relation to each alleged tort. VI. Torts alleged by Bennett: i. False Arrest Is the claim statute barred by the Limitations Act? [ 47 ] Bennett concedes that his claim of false arrest is statute barred, and no further analysis is required. ii.

Negligent Investigation Is the claim statute barred by the Limitations Act? [ 48 ] This tort is alleged against the CPS and LPS Defendants. [ 49 ] In 2007, the Supreme Court of Canada affirmed the tort of negligent investigation.

To establish this tort, Bennett must prove that the investigating officers or agency owed him a duty of care, breached that duty of care and that he suffered compensable damages as a result: Hill v Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 [ Hill ]. [ 50 ] In the case before me, the CPS Defendants acknowledge that they owed Bennett a duty of care as a suspect in their investigation. They argue, however, that his claim is statute barred. [ 51 ] Bennett relies on the Ontario Court of Appeal decision in Romanic v Johnson , 2013 ONCA 23 [ Romanic ] , interpreting Hill

as standing for the proposition that termination of the proceedings in his favour is a required element of the tort of negligentinvestigation, and therefore his limitation period did not commence to run until February 21, 2017. With respect, Hill does not state thattermination of the criminal proceedings in favour of the plaintiff is an element of the tort of negligent investigation.

Rather, Hill speaksto the issue of discoverability. [52] In Hill, the applicable limitation period was set out in the Public Authorities Protection Act, RSO 1990, c P.38 (repealed)which required that an action be commenced within 6 months after the “cause of action” arose. The Court interpreted the phrase “causeof action” to mean the point at which the plaintiff had suffered compensable loss. In Hill, the plaintiff was wrongfully convicted andimprisoned for a period of 20 months. The Court determined that his loss or damage did not materialize until the wrongfulness of hisconviction was established.

It was only then that the compensable damage flowing from his imprisonment was realized.

His limitationperiod, therefore, began to run upon his acquittal. [53] In its broad discussion of the limitation period relating to negligent investigation, the Court made clear that no cause of actionfor negligent investigation arises on a proper conviction, saying: “Lawful pains and penalties imposed on a guilty person do notconstitute compensable loss.” They did not however, foreclose a claim in negligent investigation in circumstances where there is anacquittal after trial, charges are stayed or withdrawn before trial, or where no charges are laid at all.

In this respect, they stated that thecause of action arises not when the tortious act is committed but when the compensable harmful consequences result (Hill, at paras 90-98). [54] Subsequent decisions in Ontario and Alberta demonstrate this approach. In Winmill v Woodstock (Police Services Board),2017 ONCA 962 [Winmill], the Court held that the date of discoverability was on acquittal. In that case, Winmill had been acquitted ofassaulting a police officer and resisting arrest. He then launched an action in battery and negligent investigation against the police.

TheCourt relied on the specific facts of the case, noting that the plaintiff did not know that a legal proceeding in battery would be anappropriate means to a remedy until he was acquitted. Given that the negligent investigation claim was intertwined with the batteryclaim, discoverability was held to be the date of acquittal. In P.Y. v Ontario (Attorney General), 2021 ONCA 761, the date ofdiscoverability was held to be when the last charge was added to the indictment.

No explanation was provided for this determination,although it appears that this would reflect the date on which the investigation was complete, and all charges had been laid. In Green vDiack, 2012 ABQB 45, the Court considered the plaintiffs’ claim for negligent investigation in circumstances where they were nevercriminally charged. [55] I conclude that these cases can be reconciled based on the concept of discoverability of compensable harm, as enunciated inHill, and properly reflects that discoverability is a case-by-case, fact-driven analysis. This is consistent with the discoverabilityprovisions in

section 3 of our Limitations Act. As such the limitation period will begin to run once duty, breach and damage are known orreasonably ought to have been known to a plaintiff exercising reasonable diligence.

While acquittal may be the measure in some cases, itwill not be in all. [56] Bennett’s allegations of negligent investigation are specific to a failure on the part of the LPS and CPS Defendants to properlyinvestigate his break and enter complaint and their failure to properly scrutinize the credibility of Stephan. [57] In his affidavit sworn February 5, 2021, Bennett states that the LPS Defendants began their investigation into the break andenter on July 2, 2010, and abandoned that investigation in mid-July 2010.

On September 13, 2013, when he was charged by the CPSDefendants with mischief and fraud in relation to his insurance claim, Bennett had knowledge that the police were not investigating thebreak and enter. By this time, having received disclosure in relation to the 2011 charges, Bennett knew that Stephan had acted as anagent for police in their investigation of him and that the Attorney General had entered the IA with him. The police took no furtherinvestigative activity beyond the date of the last charges.

By December 9, 2015, he had received full disclosure in the criminalproceedings and was aware of all steps undertaken in the police investigations. [58] The compensable harms set out in Bennett’s Statement of Claim and affidavit include irreparable damage to his reputation,character and standing in the community, humiliation and disgrace, shock, anxiety and psychological trauma, loss of business, includinglimitations on his ability to sell firearms and participate in gun shows, loss of future earning ability, loss of confidence and security andlegal costs associated with his criminal defence.

Those injuries were discoverable upon him being arrested, criminally charged andsubject to release conditions. His acquittal while bringing an end to the criminal charges in his favour, cannot be said to have caused thedamages alleged. [59] Accordingly, for the purposes of the tort of negligent investigation, Bennett’s limitation period began to run against the LPSand CPS Defendants on the date he was last charged: September 13 2013. His action was not commenced within 2 years and is thereforestatute-barred.

Has Bennett failed to prove one or more elements of the tort of the negligent investigation? [60] The LPS Defendants further argue that they did not owe a duty of care to Bennett as he was a complainant, and not a suspect,in their investigation of the break and enter. They also argue that they were not involved in the CPS trafficking investigation. [61] There is a long line of authority which holds that police do not owe a duty of care to individual victims of crime: Wellington vOntario, 2011 ONCA 274 (and see Rennalls v Tettey, 2021 ABQB 1).

Exceptions to this are narrow and include, for example, the dutyto warn distinct groups of potential victims of a specific threat or risk: Jane Doe v Toronto (Metropolitan) Commissioners of Police, (ON SC), [1990] OJ No 1584 (Div Ct); leave to appeal to CA refused, (ON CA), [1991] OJ No3673. [62] Bennett alleges in his Statement of Claim that the LPS Defendants stopped investigating the break and enter after they wereadvised that CPS believed Bennett had concocted the story to cover up his involvement in weapons trafficking.

He alleges that twounnamed LPS officers confided to him (and an associate) that LPS was pressured to lay criminal charges against him, despite a lack ofevidence. Neither of these officers have provided evidence in these proceedings. Jason Walper, a named LPS defendant, was questioned

on his affidavit. His evidence was that the break and enter investigation was undertaken and ran cold in July 2010. None of the weapons(save for those recovered in the trafficking event) have ever turned up or been recovered despite being registered on CPIC. In addition,there is no evidence that LPS was engaged in the CPS investigation, and they played no role in laying the 2013 charges which weredirected after prosecutorial review. [63] Bennett has not proven that a duty of care existed between he and the LPS Defendants with respect to their investigation of thebreak and enter.

He was a complainant in their investigation, and the allegations he makes with respect to the pressure brought to bear bythe CPS Defendants are not only unsubstantiated but are contradicted by the fact that the 2013 charges were laid by CPS afterprosecutorial review. iii.

Malicious Prosecution [64] To establish the tort of malicious prosecution Bennett must prove that: the proceedings were initiated by the defendants;terminated in favour of the plaintiff; there was an absence of reasonable and probable cause to justify the proceedings; and thedefendants acted with malice or a primary purpose other than carrying the law into effect: Nelles v Ontario, (SCC),[1989] 2 SCR 170; Miazga v Kvello Estate, 2009 SCC 51.

Is the claim statute barred by the Limitations Act? [65] The parties agree that this claim is not statute-barred as the action was filed within 2 years of Bennett’s acquittal. Has Bennett failed to prove one or more elements of the tort of malicious prosecution? [66] In this case the first 2 elements are conceded by the AB Defendants and CPS Defendants – they initiated prosecutions againstBennett, all of which were terminated in his favour upon his acquittal.

This case turns on proof of elements three and four. [67] The test for an absence of reasonable and probable cause has both subjective and objective elements. Subjectively, theprosecutor must believe that guilt could properly be proved beyond a reasonable doubt. Objectively, that belief must be reasonable in allof the circumstances. As noted in Proulx v Quebec (Attorney General), 2001 SCC 66 [Proulx]: To say that a prosecutor must be convinced beyond a reasonable doubt of an accused person’s guilt before bringing charges is obviouslyincorrect.

That is the ultimate question for the trier of fact, and not the prosecutor, to decide. However, in our opinion, the Crown musthave sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt before reasonable and probable causeexists, and criminal proceedings can be initiated.

A lower threshold for initiating prosecutions would be incompatible with theprosecutor’s role as a public officer charged with ensuring justice is respected and pursued...We think it must have been clear to theprosecutor on March 20, 1991, when he authorized the charge of first degree murder against the appellant, that this evidence couldnot properly have resulted in a conviction. [68] Four separate Crown prosecutors reviewed the continuing prosecution of Bennett at various stages of the proceedings: Karpa,who prosecuted a portion of the preliminary inquiry; Persad, who concluded the prosecution of the preliminary inquiry, was involved inthe laying of the direct indictment in 2013, and was in discussions with the RCMP relative to further disclosure regarding the RCMPinvestigation of Stephan; Rea, who argued the Jordan application; and Dhillon, who ran the trial through to its conclusion. [69] Each independently concluded, after considering the evidence as a whole, that there was a reasonable likelihood of convictionand that it was in the public interest to pursue the prosecution.

Each concluded that there was sufficient evidence to establish Bennett’sguilt beyond a reasonable doubt. Each swore they were motivated only by their duties as Crown Prosecutors, agents of the AttorneyGeneral, and officers of the Court. Each swore they acted for no purpose other than carrying the law into effect and without personalmalice towards Bennett. [70] Each were questioned on their affidavits and specifically with respect to the allegations that they lacked reasonable andprobable grounds to prove guilt beyond a reasonable doubt.

Each were able to articulate the Crown’s theory of the case on which theysatisfied themselves that there was a reasonable likelihood of conviction. Each were extensively questioned as to their assessment ofStephan’s credibility, Bennett’s motive, or lack thereof, and Bracher’s reliability. [71] Each were fully aware that Stephan was a criminal who had entered the IA.

Each were aware that he was a Vetrovec witness.It is important to note at this stage that the law arising from Vetrovec v The Queen, (SCC), [1982] 1 SCR 811: itcautions that confirmatory evidence may be necessary to overcome credibility concerns arising from such things as the personalmotivation or unsavoury nature of a witness. Each of the prosecutors, in their respective assessments of the case, were able to articulateconfirmatory evidence they relied on in their assessment of Stephan’s evidence and their reasonable and probable grounds.

This includedevidence from Bracher that Bennett asked him to lie about when he picked up the guns, which, if accepted by the Court, proved Bennettconcocted the break and enter story, and confirmed Stephan’s evidence that the guns were given to him to traffic. I am satisfied based onthe record before me that each of the Crown Prosecutors subjectively believed that they had reasonable and probable grounds to pursuethe prosecution. [72] I am also satisfied their belief was objectively reasonable.

The Crown disclosure and the evidence given at the preliminaryinquiry demonstrate that Stephan and Bennett were acquainted with one another prior to the events of June 22, 2010. A number of theweapons trafficked by Stephan were registered to Bennett. Bennett’s evidence as provided to the police and the insurance company as tothe timing of the break and enter, as well as his wife’s knowledge of the presence of the guns in the garage was inconsistent.

Stephan andBennett had telephone communications on June 22, 2010, at around the time the trafficking event was unfolding. [73] The fact that the Attorney General entered an IA with a known criminal, of questionable credibility, who might be motivatedto lie, does not in and of itself undermine reasonable and probable cause. There was confirmatory evidence throughout the prosecution of

this case (as highlighted in the Crown evidence above and supported by the disclosure and preliminary inquiry evidence), which was led at trial and if believed, would have grounded a conviction. [ 74 ] That Bennett was acquitted does not undermine reasonable and probable cause, particularly when credibility is a central issue at trial: Michelucci v Sveinbjornson , 2021 ABCA 335 .

The Crown’s only obligation was to determine whether there was reasonable and probable cause to support a conviction and to fairly place the evidence before the trial judge. [ 75 ] In this case, the trial judge was fully apprised of Stephan’s status as a Vetrovec witness and the competing arguments about the reliability and credibility of the evidence before her. Her reasons indicate that she disbelieved Bennett’s story regarding the break, enter and theft, but that she could not infer concoction from disbelief.

She found Bracher to be an honest witness but found that memory issues and lack of independent recollection rendered his evidence unreliable. As a result, she concluded that she could not find concoction, Stephan’s evidence was not confirmed, and the Crown had failed to prove the case beyond a reasonable doubt.

As noted in Proulx , this is the ultimate question for the trier of fact, not the prosecutor. [ 76 ] As a result, an absence of reasonable and probable cause is not proven on this record and Bennett has raised no evidence in this application which would raise a genuine issue requiring trial. [ 77 ] With respect to proof of malice, Bennett is required to prove that the named Crown Prosecutors had an intention other than to carry out their duties according to law; that their acts reflect a fraud on the process of criminal justice, such that they have perverted or abused their office.

The factual circumstances required to prove malice must be tantamount to a fraud on the criminal justice system and bare assertions that a witness was of unsavoury character, a known accomplice, who had lied to police and had a motive for framing the accused are insufficient proof: Boudreault v Barrett , 1988 ABCA 232 . [ 78 ] The pleadings do not particularize the malice alleged and no application to amend the pleadings has been advanced. In the context of the rule 7.3 application, Bennett has offered no evidence on the record of malice.

The only evidence before me is that the Crown Prosecutors pursued the prosecution for the purposes of carrying the law into effect. As a result, this record does not prove malice. [ 79 ] With respect to the CPS Defendants, the same elements must be proven.

As a result, it is necessary to determine whether the police officers had reasonable and probable grounds to lay the charges and pursue the prosecution. [ 80 ] J.H. v Windsor Police Services Board et al. , 2017 ONSC 6507 , is instructive in its analysis of “reasonable and probable grounds” as relates to the standard of care applicable to the tort of negligent investigation.

As noted in this case, police are not required to establish a prima facie case for conviction or engage in the weighing of credibility or reliability of witnesses before laying a charge; they will have reasonable and probable grounds where they act on evidence, which if believed, justifies a charge and conviction. In addition, once the matter is in the hands of the Crown, a prosecutor’s determination that there is a reasonable likelihood of conviction, supports that there existed reasonable and probable grounds for laying the charge.

Finally, this case, and others, note that a committal to stand trial after a preliminary inquiry, in the absence of a fundamental flaw in preliminary inquiry proceedings, provides strong support for the existence of reasonable and probable grounds to charge and prosecute. (See also: Okafor v Attorney General of Ontario , 2022 ONSC 264 .) [ 81 ] While there is no independent affidavit sworn by the named CPS Defendants, the Crown disclosure and the preliminary inquiry evidence of the officers are sufficient to assess the reasonable and probable grounds of these defendants.

This is the same evidence which informed the Crown prosecutor’s analysis of reasonable and probable grounds as I previously outlined, and I am satisfied that it similarly demonstrates that police had reasonable and probable grounds with respect to the laying of charges and continued prosecution of Bennett. [ 82 ] As with the AB Defendants, no allegations of malice have been particularized and there is no evidence on the record or raised by Bennett in this application to allow such a finding or raise a genuine issue requiring trial. [ 83 ] With respect to the LPS Defendants, the record does not satisfy me on a balance of probabilities that these defendants initiated the charges and prosecution against Bennett.

At the very least, they commenced an investigation into his complaint of break and enter and were later advised by the CPS Defendants that they believed Bennett may have concocted that story. Their file contents were forwarded to the Lethbridge Crown Prosecution Service for review, and the matter was ultimately reviewed by Persad who directed seven charges to be laid. These are the 2013 charges. Persad ultimately determined that there was a reasonable likelihood of conviction on two of those charges - the public mischief and fraud charges - which were ultimately pursued at trial.

The balance of the 2013 charges were stayed prior to trial. As a result, the LPS defendants played no role in determining reasonable and probable cause for laying the charges, this duty having been undertaken by the Crown. [ 84 ] As with the AB Defendants and the CPS Defendants, no allegations of malice have been particularized and Bennett has offered no evidence of malice. [ 85 ] As a result, Bennett has failed to prove either an absence of reasonable and probable cause or malice in relation to any of the AB Defendants, the CPS Defendants, and the LPS Defendants iv.

Misfeasance in Public Office [ 86 ] Bennett alleges that the Attorney General of Alberta, the CPS Defendants, and LPS Defendants are liable for the tort of misfeasance in public office. To ground this tort, Bennett must prove that they engaged in deliberate and unlawful conduct in the course of exercising their public duties and had knowledge that such conduct was unlawful and likely to cause injury to him: Odhavji Estate v Woodhouse , 2003 SCC 69 . [ 87 ] Bennett’s allegations with respect to this tort are not specifically particularized, but based on the whole of the pleadings arise

in relation to the investigation of the 2011 and 2013 charges, the agency relationship with Stephan, the IA, and the obtaining of authorizations for wiretap and search warrants, which he says were unsubstantiated on the evidence. Is the claim statute barred by the Limitations Act? [ 88 ] It is the position of the defendants that this cause of action is statute-barred. The AB Defendants and LPS Defendants argue that the limitation period commenced to run in 2011 after Bennett received a copy of the IA as part of the Crown disclosure relating to the 2011 charges.

The CPS Defendants argue that the limitation period began to run on October 15, 2013, after Bennett was ordered to stand trial following the preliminary inquiry and the additional two charges were preferred against him. At this point Bennett had full disclosure, save for the 18 pages of RCMP documents, and therefore was fully aware of Stephan’s agency relationship with them, the IA, and the warrants and authorizations.

They say that even if the 18 pages of RCMP disclosure marked the latest date by which Bennett could have reasonably discovered his claim, his claim is still statute barred, having been commenced more than two years after December 9, 2015. [ 89 ] Bennett takes the position that this misfeasance was a continuing act which culminated in his acquittal at trial on February 21, 2017.

He says his claim was brought within the limitation period. [ 90 ] I am satisfied based on the pleadings, that the latest date the limitation period began to run was December 9, 2015, when Bennett had access to complete Crown disclosure, including the RCMP disclosure which raised additional issues regarding Stephan’s credibility, specifically that the RCMP considered him a suspect in relation to weapons smuggling and had chosen not to enter an IA with him.

At this date Bennett would have had full knowledge of all investigative steps which he says form the basis of the misfeasance, including the Information to Obtain warrants which included the evidence the RCMP had learned from the confidential informant. In addition, by this time Bennett had suffered the injuries he has pleaded which were associated with being arrested and charged. [ 91 ] Bennett’s action was commenced after the expiry of the limitation period and is statute barred.

Has Bennett failed to prove the elements of the tort of misfeasance in public office? [ 92 ] Bennett argues that the AB Defendants abused their public office by entering the IA with Stephan and by placing undue reliance on his testimony, when there was other contrary evidence in their possession. That evidence largely relates to a Glock handgun found in Stephan’s vehicle at the time of his arrest.

While Stephan told police that he bought the gun from Bennett, it is Bennett’s contention that weapon was the same weapon a confidential informant told RCMP Stephan smuggled into Canada. [ 93 ] Bennett relies on Broadhead’s affidavit and Questioning testimony. Broadhead, however, was careful to say, that the gun Stephan was found with was “not inconsistent” with the confidential source information.

This does not mean they were the same weapon, and this issue will never be resolved by further evidence given that the confidential informant’s statement has not and will never be tested by cross-examination. [ 94 ] While it is true that Broadhead found Stephan to be untrustworthy and lacking in credibility and advised the RCMP against entering an IA with him, Broadhead testified he was unaware of the details of the CPS investigation, including that Stephan had informed CPS he purchased the Glock from Bennett and acted as an agent in the CPS investigation.

Broadhead, in this testimony recognized the discretionary nature of the decision to grant Stephan immunity, stating, “I understood the procedure and how it arrived at that, so I’m not criticizing it.” Indeed, the RCMP left the prosecution of charges they laid against Stephan in the hands of the CPS Defendants. Those charges were stayed upon entry of the IA. [ 95 ] The decision to enter an IA is an exercise of prosecutorial discretion, not subject to judicial review: R v Antinello , 1995 ABCA 117 [ Antinello ] .

As noted in Antinello , the prosecution must sometimes “treat” with unsavoury witnesses to effectively prosecute crime. Absent evidence of either flagrant impropriety or a violation of the principles of fundamental justice, the entry of such an agreement will not give rise to an abuse of public office: R v Pizzardi , 197 NR 165, 1993 CarswellOnt 3812 (CA) . [ 96 ] The agency agreement, IA and Stephan’s criminal record were disclosed to Bennett and to the Court during the criminal proceedings and disclosed the benefits received by Stephan in exchange for his cooperation.

The IA references the significant number and serious nature of the charges from which Stephan was receiving prosecutorial immunity. The IA not only required Stephan to testify against Bennett; it also required him to testify against three other defendants in relation to the trafficking charges. He further agreed that he would testify truthfully in all Court proceedings or risk perjury charges and a collapse of the IA.

In relation to the criminal proceedings, the evidence of the AB Defendants is that he upheld his end of the bargain, providing evidence at the preliminary inquiry and the trial which was consistent with his statements to police. [ 97 ] Broadhead’s testimony does not give rise to evidence of either flagrant impropriety or a violation of the principles of fundamental justice in relation to the IA. Neither does the well-known fact that Stephan was unsavoury.

Bennett has tendered no other evidence which would demonstrate that the IA reflected an abuse of public office. [ 98 ] Accordingly, Bennett has failed to prove that the defendants engaged in deliberate and unlawful conduct in the course of exercising their duties, knowing that such conduct was likely to cause injury to him. v.

Charter Breaches [ 99 ] Bennett’s claim alleging Charter breaches is premised on allegations that the CPS and LPS Defendants obtained and executed warrants and other authorizations on inadequate grounds and failed to provide material disclosure in relation to the RCMP investigation into Stephan. The CPS and LPS Defendants argue that this claim is statute-barred by the Limitations Act . Is the claim statute barred by the Limitations Act?

[100] The two-year limitation period provided for in

section 3 of the Limitations Act is applicable to civil actions arising from Charterbreaches: Nagy v Phillips, 1996 ABCA 280; Brandner v Alberta (Justice and Solicitor General), 2014 ABQB 211. [101] Bennett was in possession of all Crown disclosure by December 9, 2015. This included the Informations to Obtain variouswarrants which were judicially authorized and the 18 pages of RCMP records provided on December 1, 2015. By that date all of thewarrants had been executed. [102] The transcripts from the December 1, 2015, court appearance in the criminal proceedings indicate that Bennett intended to bringboth an application pursuant to

section 8 of the Charter with respect to those warrants and a

section 11(

d) application in relation toprejudice resulting from delay. It is not clear that the

section 8 application proceeded, but his Jordan application was denied, the trialJudge noting that the period of delay relating to the late RCMP disclosure was Bennett’s responsibility as a result of his failure toadvance an O’Connor application. [103] Given his express intention on December 1, 2015, to advance these Charter applications in the criminal proceedings, it is clearthat Bennett had knowledge that his Charter rights were engaged, and he had suffered harm from both the execution of the warrants anddelay arising from late disclosure.

His limitation period began to run on this date. [104] Accordingly, his action was not commenced within the 2-year limitation period and is statute-barred. vi. Civil Conspiracy [105] To ground a claim in civil conspiracy, Bennett must prove that there was an agreement between two or more of the defendantsand that concerted action was taken in furtherance of that agreement, either to intentionally cause him harm through lawful action or withknowledge that injury would result to him from unlawful action.

In addition, Bennett must prove he suffered actual damage as a result:Canada Cement LaFarge Ltd. v British Columbia Lightweight Aggregate Ltd., (SCC), [1983] 1 SCR 452; MraicheInvestment Corporation v McLennan Ross LLP, 2012 ABCA 95; D’Agnone v D’Agnone, 2017 ABCA 35. [106] Bennett alleges that the defendants, in various combinations, conspired together to enter the agency relationship and IA withStephan and to rely on his evidence to ground the charges ultimately laid against Bennett in 2011 and 2013.

He further alleges that theCPS Defendants and LPS Defendants conspired to injure him by violating his Charter rights. Is the claim statute barred by the Limitations Act? [107] With respect to the arguments advanced under the Limitations Act, I am satisfied again that Bennett’s limitation periodcommenced to run on December 9, 2015. His allegations are framed around the entry of the IA, the charges laid against him in 2011 and2013, as well as the alleged Charter violations occurring during the investigation. The injuries he alleges in his pleadings are related tobeing arrested and charged.

At the latest, by the time he received full Crown disclosure on December 9, 2015, he had sufficientknowledge of the IA, all evidence relevant to Stephan’s credibility, the information underlying the judicially authorized warrants and theinjuries flowing from being arrested and charged. [108] Accordingly, his Statement of Claim was filed outside of the 2-year limitation period and is statute-barred by the LimitationsAct. Has Bennett failed to prove the elements of the tort of civil conspiracy? [109] Broadly characterized, Bennett’s allegations form the basis of a claim of predominant purpose conspiracy.

Given my findingswith respect to the negligent investigation, misfeasance in public office, and malicious prosecution claims; and my specific findings withrespect to the IA, there is no evidence that the defendants, by agreement, acted in concert, to intentionally harm Bennett through lawfulaction or with knowledge that injury would result to him from unlawful action.

The evidence demonstrates that Bennett was prosecutedbecause police and Crown prosecutors had reasonable and probable cause to believe he had committed the crimes alleged and hisprosecution was in the public interest. [110] With respect to the search, seizure and recording of Bennett, there is no evidence on this record that Bennett’s Charter rightswere breached or that the defendants made a common agreement to violate his Charter protected interests for the purpose of causing himharm or with knowledge that injury would flow from their actions.

The record demonstrates that the warrants were judicially authorizedand none of the evidence obtained was ultimately tendered at trial. [111] Therefore, the essential elements of the tort of civil conspiracy are not proven on this record. VII. Conclusion [112] Based on the above analysis, and applying the tests as articulated in Weir-Jones and Hannam, I am satisfied that the defendantshave proven on a balance of probabilities that there is no merit to Bennett’s claims because all are either statute-barred by the LimitationsAct or Bennett has failed to prove one or more elements of the torts alleged.

The defendants have also proven on a balance ofprobabilities that a fair, just and cost-effective determination can be made on the record before me and Bennett has raised no issues offact, law or credibility that require a full trial. As a result, there is no genuine issue requiring trial. [113]

Summary dismissal is granted and Bennett’s action against the AB Defendants, CPS Defendants and LPS Defendants isdismissed entirely.

VIII. Costs [ 114 ] Barring agreement, the parties may arrange to speak to costs within 60 days. Heard on the 1 st day of December 2022 to the 2 nd day of December 2022. Dated at the City of Lethbridge, Alberta this 8 th day of June 2023. J.C. Kubik J.C.K.B.A.

Appearances: Ingrid Hess for the Plaintiff Donald Dear, K.C. for the Defendants Jason Walper, Robert Davis, Chief of Police of Lethbridge Police Service Cynthia Hykaway for the Defendants Susan Karpa, Ryan Persad, Janice Rea, Rajbir Dhillon, Alberta Crown Prosecution Service, and the Attorney General of Alberta Christopher Ghesquiere for the Defendants Lee Treit, Lloyd Plomp, Ken Carriere, Roger Chaffin, and the Chief of Police of the Calgary Police Service