2023 MBKB 137, 2023 MBKB 137

Date: 20230922 Docket: CI 19-01-23904 (Winnipeg Centre) Indexed as: Grant v.

The Attorney General of Manitoba et al Cited as: 2023 MBKB 137 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: MARK GRANT, ) ) plaintiff, ) ) Lawrence Greenspon and Rebecca Akong ) Counsel for the plaintiff - and - ) ) the attorney general of manitoba, the government of manitoba, and THE CITY OF WINNIPEG , defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Denis Guénette, Tom Dobson, Lisa Cupples, Tristan Sandulak Counsel for the defendants The Attorney General of Manitoba and The Government of Manitoba Brandon Barnes Trickett, Kishan Lakhani Counsel for the defendant The City of Winnipeg on a watching brief ) ) ) Judgment delivered: ) September 22, 2023 SENIOR MASTER CLEARWATER [ 1 ] This matter involved consideration of a motion brought by the defendants, The Attorney General of Manitoba and The Government of Manitoba (hereinafter “the Provincial Defendants”) to strike the Amended Amended Statement of Claim , filed January 18, 2022 (the “claim”).

The Provincial Defendants allege that the claim fails to disclose a reasonable cause of action, or is an abuse of process such that it ought to be struck without leave pursuant to rule 25.11 of the Court of King’s Bench Rules (“the rules”). The motion only relates to the claim against the Provincial Defendants. The defendant The City of Winnipeg, while attending on a watching brief, did not participate. [ 2 ] For the reasons stated below, with one exception, I am dismissing the motion. The one exception relates to paragraph 65 of the claim, which I am striking without leave to amend.

Facts [ 3 ] This case involves a very challenging set of circumstances for the plaintiff. It surrounds many years of struggle within the

criminal justice system, that resulted in time spent incarcerated, two full criminal trials, and two appeals. The plaintiff was ultimately acquitted at his second trial, and written reasons from the trials and appeals, were before this court. I do not intend to restate in any detail the well known facts of this case as a result. [ 4 ] To summarize, the plaintiff was arrested and charged on or about May 16, 2007, with the then approximately 20-year-old abduction and murder of Candace Derksen.

The case garnered much attention throughout, starting in 1984 when the victim went missing, and right thorough to the ultimate acquittal of the plaintiff. It was a very difficult set of facts, and a difficult journey for all involved, including the family and friends of the victim, and the plaintiff himself. [ 5 ] The claim alleges the plaintiff, who was convicted of the crime after a jury trial, and ultimately spent 10 years incarcerated before being acquitted in 2017 by a judge alone, was the subject of malicious prosecution, among other things.

The claim alleges that the original conviction was based on “known” faulty DNA evidence, and wrongly excluded similar fact evidence. [ 6 ] Concerning the later issue, the plaintiff pleads the Provincial Defendants, unreasonably and for an inappropriate purpose, argued for the exclusion of the evidence, and maintained that argument on appeals, ultimately to the Supreme Court of Canada. The plaintiff was successful at convincing the appeal courts that the evidence should be permitted, and a retrial was directed by the Manitoba Court of Appeal, which direction was upheld by the Supreme Court of Canada in this case.

The plaintiff urges the court to infer the actions of the Provincial Defendants on this point is evidence of malicious prosecution. [ 7 ] Concerning the DNA evidence issue, the plaintiff pleads the Provincial Defendants knew the DNA was not reliable, yet they unreasonably, and for inappropriate purposes, continued to pursue the conviction on primarily that evidence.

The plaintiff asserts that these facts are further evidence of malicious prosecution. [ 8 ] The facts relating to the prosecution, original trial, the appeal to the Court of Appeal of Manitoba, and then to the Supreme Court of Canada, are outlined in the claim at paragraphs 21-35, and in additional detail throughout. A

summary of the facts pled specifically relating to the allegation that the Provincial Defendants engaged in malicious prosecution include, but are not necessarily limited to the following:

a) The charges were based primarily on the strength of an alleged DNA match with the plaintiff (paragraph 21 and 22);

b) The plaintiff maintained his innocence from the outset (paragraph 23);

c) The DNA evidence was challenged by the plaintiff from the outset, including through the appeals. The plaintiff obtained contrary expert evidence which he shared with the Provincial Defendants, and which he alleges clearly showed the prosecution’s DNA evidence was unreliable and flawed (paragraphs 25, 27-31, 33, 34, 40-48);

d) The original conviction was obtained, at least in part, by the Provincial Defendants’ push for the exclusion of other relevant evidence. Further, the Provincial Defendants’ continued argument for the exclusion of this evidence, first at the Court of Appeal, and then at the Supreme Court, was unreasonable (paragraphs 25, 31, and 32); and

e) That the prosecution of the plaintiff was initiated by the Provincial Defendants, the proceedings terminated in favor of the plaintiff, and that the Provincial Defendants initiated and continued the prosecution of the plaintiff without reasonable and probable grounds, for malicious purposes. In this case, the malicious purpose can be inferred, alleges the plaintiff, by the clearly flawed evidence and arguments relied on by the Provincial Defendants (paragraphs 59 – 64).

Analysis [ 9 ] To summarize the positions, the Provincial Defendants argue that the basis for a successful claim for malicious prosecution is either not properly pled, or is manifestly incapable of proof, even accepting the facts pled as true in this case. The plaintiff argues the contrary.

He says, at least at the pleadings stage, he has pled sufficient material facts which, if assumed true, support a finding at law of malicious prosecution. [ 10 ] The relevant rule is as follows: 25.11(1) The court may on motion strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document, (

a) may prejudice or delay the fair trial of the action; (

b) is scandalous, frivolous or vexatious; (

c) is an abuse of the process of the court; or (

d) does not disclose a reasonable cause of action or defence. [ 11 ] Both the plaintiff and the Provincial Defendants filed significant materials on this motion. Although I have reviewed all of those materials and submissions made in this case, I do not intend on restating all of the arguments or law filed. [ 12 ] While the Provincial Defendants have raised relevant issues and concerns with the ability of the plaintiff to prove all elements of the claim against it for malicious prosecution, on a motion such as this, the test remains quite simple.

The only question I must ask is whether, assuming all facts pled are true, it is plainly obvious that the pleadings either do not disclose a reasonable cause of action, may prejudice or delay a fair trial, are scandalous, frivolous or vexatious, or represent an abuse of process of the court. If the answer is yes, I must strike. If not, then the plaintiff is entitled to move ahead to prove the elements of the claim. I am satisfied here, with one exception,

that this is not such a clear case. [ 13 ] For ease, I will firstly address the one circumstance in which I agree with the Provincial Defendants that part of the pleadings should to be struck, that is, paragraph 65 of the claim. I include the relevant paragraph here: 65. Manitoba has had one of the highest rates of wrongful convictions in Canada.

This demonstrates a systemic problem within the provincial criminal justice system supporting the allegation that crown attorneys in Manitoba are generally more interested in winning, regardless of the guilt or innocence of the accused, than furthering the ends of justice, or carrying the law into effect. In the circumstances of this case, the Prosecuting Defendants clearly pursued the prosecution of Mark Grant despite significant evidence demonstrating innocence.

On this basis alone, it can be inferred that the purpose of prosecuting Mark Grant was not for the primary purpose of carrying the law into effect. [ 14 ] Paragraph 65 alone, and even in conjunction with the remainder of the pleading, does not contain material facts related to the specific cause of action against these particular defendants. To the contrary, it contains a bold and broad conclusion of alleged systemic issues, and inferences, including of motives, without any particulars that link these allegations to the case at hand.

While the plaintiff argued this statement is relevant and related to damages pled in this case, I disagree. [ 15 ] As set out in the case law provided, one of the purposes of pleadings is to ensure the defendants are clear on the case they are to meet. Further, in accordance with rule 25.11(1)(a), any pleading that may prejudice or delay the fair trial of an action may be struck.

In fact, the case law, along with the principles of proportionality now enshrined in our rules, support that bold allegations, or statements in a pleading that can unduly delay, extend or complicate a fair hearing of the true matters at issue between the parties should be struck. [ 16 ] If this paragraph is permitted to remain in the claim in its current form, or in any form for that matter, it moves the court process into a situation too far removed from this individual cause of action. It will invite a form of inquiry beyond the scope of the alleged wrongdoing to this plaintiff.

Paragraph 65, should it remain in place, will most definitely, and inappropriately complicate or delay the fair trial of this action. [ 17 ] In addition, beyond perhaps being able to prove Manitoba’s rate of wrongful convictions, the additional broad statements and invited inferences are quite likely incapable of proof.

Further, the statements do not add, in any meaningful or material way, to the proof of the relevant elements of the cause of action alleged as against any of the defendants in this case. [ 18 ] For all of these reasons, leaving paragraph 65 in the claim would, in my view, invite an abuse of the court’s processes, turning an individual claim into a generalized inquiry of alleged systemic issues. This paragraph is therefore struck in accordance with rule 25.11(1)(

a) and (c), and because it is not a properly pled material fact in the circumstances. [ 19 ] While the court retains the discretion on motions such as this, to grant leave to the plaintiff to amend his pleadings, on this narrow point, this is not the appropriate case to do so. This plaintiff has been granted two opportunities to amend his claim already, the second one coming after he was fully aware of the Provincial Defendants’ concerns over paragraph 65. In fact, he did make such amendments. The amendments simply fail to remedy the noted concerns.

As such, it is not fair, just, or proportional to allow a further attempt on this narrow point. Paragraph 65 is struck without leave to amend. [ 20 ] In respect of the remainder of the relief sought, that is to strike the claim as against the Provincial Defendants pursuant to rule 25.11(1)(c and d), there was no disagreement by the parties as to the applicable test. The court in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 , sets out the test at paragraph 17 and 22 as follows: 17 . . .

A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: . . . 22 A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: . . . [ 21 ] In order to be convinced that it is plain and obvious the claim must fail, I must consider if there are sufficient material facts pled that support all elements of the cause of action alleged.

Put another way, the facts must, if true, be sufficient for the court to determine that the relevant elements of the cause of action have been made out. In this case, the claim at issue against the Provincial Defendants is for malicious prosecution. [ 22 ] The Provincial Defendants have highlighted for this court many cases surrounding the development of malicious prosecution as it relates to the Crown in Canada.

They have highlighted the importance of prosecutorial discretion, and the need for the plaintiff to be able to prove, on a balance of probabilities, that the Provincial Defendants’ actions were more than negligent. These points are critical, say the Provincial Defendants, because they go to the heart of whether the facts pled in this case are “manifestly incapable of being proven”, a factor I must consider in keeping with the Imperial Tobacco case.

I agree. [ 23 ] Without reviewing the entire history of the development of the tort of malicious prosecution against the Crown in Canada, I accept that the Supreme Court of Canada case of Miazga v. Kvello Estate , 2009 SCC 51 , sets out the current elements of such a claim. Miazga also reiterates the onus remains with the plaintiff to prove those elements. These four elements can be listed as;

a) The prosecution was initiated by the defendant;

b) The proceedings must have terminated in favor of the plaintiff;

c) There must have been an objective absence of reasonable and probable grounds for the commencement, or continuation of the proceedings, as it relates to Crown prosecutors, (see paragraphs 63 through 77 of Miazga ); and

d) There must have been malice, which requires proof that the “prosecutor willfully perverted or abused the office of the Attorney General or the process of criminal justice...” (paragraph 80 of Miazga ). [ 24 ] In this case, the Provincial Defendants acknowledge the first two elements of the tort of malicious prosecution have been pled. The only consideration is whether sufficient material facts have been pled concerning the third and fourth more challenging elements.

If not, or as noted, if the material facts are pled but are “manifestly incapable of being proven”, then I must strike ( Imperial Tobacco supra). [ 25 ] The Provincial Defendants argued strenuously that, even at the pleadings stage of the proceedings, this court must concern itself with the objective question of whether or not reasonable grounds for the prosecution of the plaintiff existed in this case, and more particularly whether objective failure to have reasonable grounds has been pled.

The Provincial Defendants primarily rely on the inclusion of language like “knew or ought to have known” in the claim as proof that the requisite objective standard has not been pled, or will, on those pled facts, be incapable of proof.

They argue those allegations at best, would only prove negligence, which is not enough upon which a finding that there was an objective absence of reasonable and probable grounds as required by Miazga , can be made out. [ 26 ] However, even if I agree with the Provincial Defendants that there may be difficulty proving that fact, particularly in light of comments from the various courts in the criminal prosecution of the plaintiff, ‘difficulty’ is not the standard I am to apply here.

Rather, I must consider whether or not the pleading is plainly and clearly absent of material facts that could support such a finding. I am not convinced that it is in this case. [ 27 ] I am satisfied that even though the law supports that negligence or incompetence of the prosecutor will not be sufficient grounds to support a finding of malicious prosecution as it relates to the Provincial Defendants, the Crown in this case.

However, the relevant case law does not prohibit reasonable inferences being drawn by the trier of fact from the specific alleged knowledge or actions of the Crown. [ 28 ] In this case, the plaintiff pleads sufficient evidence from which, if proved to be true, one may infer an objective knowledge that there was no reasonable or probable grounds to at least continue, if not commence the proceedings.

In particular, the plaintiff specifically pleads the Provincial Defendants “knew” certain things about the propriety of the DNA evidence and yet persisted in the prosecution despite this (see paragraphs 25, 27-34, 40-42, and 46-48 of the claim as examples). [ 29 ] If the plaintiff can prove those pled facts, which for now I must assume are true, it is available to the trier of facts to consider if objectively, with that knowledge, the Provincial Defendants had reasonable and probable grounds to proceed with, or continue the prosecution, and if not, whether the Provincial Defendants were acting for an improper purpose. [ 30 ] Despite the fact there may be a strong defence available, and that proving the objective lack of reasonable and probable grounds, or the willful perversion of the office of the Crown will be challenging, I find the elements have at least been pled.

Further, any concern that proving the alleged knowledge and the required inferences from that knowledge may be difficult for the plaintiff, difficult simply does not, on these facts, rise to the level of “manifestly incapable of proof”. [ 31 ] As a result, I find that, at least at the pleadings stage, the material facts have been sufficiently pled such that, if proved, a cause of action for malicious prosecution could be supported at law.

Further, given I have not found the facts pled to be manifestly incapable of proof, I must dismiss the remainder of the relief sought by the Provincial Defendants. [ 32 ] As a result of all of the above, paragraph 65 of the claim will be struck without leave to amend. The remainder of the relief sought by the Provincial Defendants will be dismissed. Should costs not be agreed, a brief appointment may be obtained to speak to same. ________________________ K. L. Clearwater Senior Master