RSM v AAB, 2022 ABKB 747

Court of King’s Bench of Alberta Citation: RSM v AAB, 2022 ABKB 747 Date: 20221110 Docket: 1903 08415 Registry: Edmonton Between: RSM Plaintiff - and - AAB, Attorney General of Canada, Canada (Royal Canadian Mounted Police) and His Majesty the King in Right of Alberta as represented by the Minister of Justice Defendants _______________________________________________________ Reasons for Decision of the Honourable Applications Judge W.S.

Schlosser _______________________________________________________ [ 1 ] This is a civil lawsuit arising from a stayed prosecution of a charge of sexual assault under s 271 of the Criminal Code of Canada . The lawsuit is based in wrongful arrest and malicious prosecution. The plaintiff initially included the Crown, and the RCMP in the lawsuit, but those parties have been let out. [ 2 ] The defendant, who was the complainant, is the only one left, and applies for

summary dismissal of the Claim. The Law

i) Malicious Prosecution [ 3 ] The elements of malicious prosecution are: a. That the proceedings were either directly instituted by the Defendant or were set in motion at the instigation of the Defendant;

b. That the proceedings have been terminated in favour of the Plaintiff; c. That the Plaintiff prove as against the Defendant an absence of reasonable and probable grounds for the action prosecuted; and d. That the Plaintiff prove that the Defendant was actuated by malice in what was done. Miazga v Kvello Estate, 2009 SCC 51, at paras 53 – 56. [4] The person that initiates the proceedings is typically the police officer who laid the charge. However, the person making thecomplaint may be the person who instigates the proceedings by setting them in motion.

Miazga, and Kefeli v Centennial College ofApplied Arts and Technology, (ONCA, Endorsement). [5] In Kefeli (above at para 24) the Ontario Court of Appeal finds that the complainant can be treated as the prosecutor in exceptionalcircumstances that include: a. The complainant desired and intended the Plaintiff be prosecuted. b. The facts were so peculiarly within the complainant’s knowledge that it was virtually impossible for the professional prosecutor orpolice officer to exercise independent discretion of judgment. c.

The complainant procured the institution of proceedings either by furnishing information which he knew to be false or bywithholding information which he knew to be true, or both. And see McNeil v Brewers Retail Inc, 2008 ONCA 405, at paras 47 and 48 citing Martin v Watson, [1996] AC74 at 86.

I acknowledgethat the cases do not speak with one voice: see, for example, D’Addario v Smith, 2018 ONCA 163, referencing Nelles v Ontario, (SCC), [1989] 2 SCR 170. [6] Malice may be inferred from a false complaint: Canada v Lukasik, (ABQB), Johnson v Coppaway, (ON SC) at paras 117-118, Wood v Kennedy (1998), CanLII 14927 (ON SC) especially at paragraphs 57, 58 and 61. [7] In McNeil the Ontario Court of Appeal says: [47] ... The relationship between falsely and maliciously providing information and initiation of a prosecution was described in theHouse of Lords decision of Martin v.

Watson [1996] A.C. 74 at 86: Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offenceand states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intendsthat the person he names should be prosecuted.

Where the circumstances are such that the facts relating to the alleged offence can bewithin the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer toexercise any independent judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that theprosecution has been procured by the complainant. [48] This governing principle from Martin v. Watson has been followed and applied in Ontario law in the assessment of theinitiation element. See Scintilore Explorations Ltd. v.

Larche (1999), (ON SC), 90 A.C.W.S. (3d) 109 at para. 238(S.C.J.); Wood v. Kennedy (1998), (ON SC), 165 D.L.R. (4th) 542 at para. 50 (Ont. Gen. Div.). Thus, BRI’sprinciple assumption that the truth of the information provided or the misconduct of the individual providing that information should notbe considered at the initiation stage must be rejected. ii) Sexual Assault (

a) Consent [8]

Section 273.1(1) of the Criminal Code defines consent to be the ‘voluntary agreement of the complainant to engage in the sexualactivity in question.’ Consent in a sexual assault case is purely subjective and is ‘determined by reference to the complainant’ssubjective internal state of mind’: R v Ewanchuk (1999), (SCC), 131 CCC (3d) 481 (SCC), at paras 25-27, and seeSexual Offences in Canadian Law, Hamish C. Stuart, Thompson Reuters (loose-leaf) 3:300.10, pages 3-14, 3-15 (and the cases citedthere); Prosecuting and Defending Sexual Offence Cases, Second Edition, Brown and Witkin, edited Greenspan and Rondinelli, EmondProfessional, Toronto, 2020,

Chapter 14. There is no implied consent to sexual contact. [9] Consent in sexual assault is unique in the law, being purely subjective. The central element of the offence is thus ‘within theknowledge only of the complainant’, making it virtually impossible for a police officer to exercise any independent judgement. If acomplainant expresses their subjective belief to a police officer, it is almost certain a charge will be laid.

The unfortunate (and likelyunwanted) consequence from the complainant’s perspective, is that defending the charge may require attacking the complainant’scredibility. [10] The plaintiff has set up a thorough and detailed account in a responding affidavit which addresses gaps in the defendant’sevidence, and which contradicts the defendant’s evidence on several key points. If accepted, this evidence goes directly to whether thedefendant’s stated belief is credible. Neither account has been tested by cross-examination.

The one thing the Court cannot do in asummary dismissal application is to determine credibility on conflicting affidavit evidence. (

a) Capacity

[ 11 ] The complainant says she was drunk. The evidence on this point is fairly vague. [ 12 ] Intoxication does not necessarily obviate consent. Expert evidence may be required to show that the complainant had no capacity to consent (see Prosecuting and Defending Sexual Offence Cases (above)

Chapter 9, page 255 (and the cases cited there). The Facts [ 13 ] We do not know what statements the complainant made to the police. We also do not know what may have prompted the prosecutor to stay the charge. I will assume, for the purposes of this application that the defendant reported to the police what she said in her affidavit sworn in support of her application. [ 14 ] The plaintiff’s lawsuit is not legally unfounded. However, credibility is the central issue.

There are significant gaps in the defendant’s evidence which leaves the Court lacking confidence in the factual record now before it. (See Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at para 46 ). Disposition [ 15 ] The application is dismissed with costs. Heard on the 25 th day of October, 2022. Dated at the City of Edmonton, Alberta this 10 th day of November, 2022. W.S. Schlosser A.J.C.K.B.A. Appearances: Kevin I. Peddie West Edmonton Law for the Plaintiff Christopher Stolfa McClelland Stolfa Reed for the Defendant, AAB