AB Appellant (Plaintiff) v. Buffy Rodgers, 2021 SKCA 96

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACV3714 Citation: AB v Rodgers , 2021 SKCA 96 Date: 2021-07-07 Between: AB Appellant (Plaintiff) And Buffy Rodgers Respondent (Defendant) Before: Leurer, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Kalmakoff On appeal from: QBG 448 of 2016, Saskatoon Appeal heard: June 8, 2021 Counsel: Davin Burlingham for the Appellant Jared Biden for the Respondent Barrington-Foote J.A. I. INTRODUCTION [ 1 ] In 2014, AB was charged with two counts of sexual assault, one count of sexual assault with a weapon, and two counts of uttering threats to cause death, all of which were based on allegations by his estranged spouse [complainant].

Buffy Rodgers, a Senior Crown prosecutor employed by the Public Prosecutions Division of the Saskatchewan Ministry of Justice, took carriage of the file shortly after the first charge was laid. [ 2 ] AB repeatedly attempted to persuade Ms. Rodgers that this prosecution – which played out against the backdrop of a high conflict family law dispute relating to the children of AB and the complainant – was without foundation and should not proceed. His efforts were fruitless. All charges proceeded to trial in September of 2015.

On October 28, 2015, a judge of the Court of Queen’s Bench [trial judge] acquitted AB on all charges. In his judgment, the trial judge described the Crown’s case theory of the case in relation to the sexual assault charges as “not only improbable, it borders on the impossible” (at para 130). [ 3 ] On March 22, 2016, AB commenced an action against Ms. Rodgers in malicious prosecution, and against three RCMP officers in negligent investigation and malicious prosecution [Queen’s Bench Action]. In November of 2019, Ms. Rodgers applied for

summary judgment dismissing the claim against her. On September 18, 2020, a judge of the Court of Queen’s Bench [application judge] granted her application [Judgment]. [ 4 ] AB, who was seriously impacted by this prosecution, has appealed the Judgment. He submits that if the application judge had not ignored important evidence of police misconduct, Ms. Rodgers would not have been found to have had the subjective belief that there were reasonable and probable grounds to prosecute AB.

The finding by the application judge that she had that honest subjective belief was the foundation for his decision to dismiss the Queen’s Bench Action. AB seeks to undermine that foundation. [ 5 ] I have concluded that the application judge did not err as alleged by AB, and that his appeal must accordingly be dismissed. My reasons follow. II. FACTS A. Background [ 6 ] The complainant’s allegations of sexual assault were, as the application judge said, “unusual and perhaps even incredible” (Judgment at para 47).

The complainant claimed that AB had, on more than one occasion, applied makeup, false eyelashes, and false nails to her while she was sleeping or unconscious, sexually assaulted her while she was or was pretending to be asleep or unconscious, and made video recordings of these events. The complainant, AB and their children are Irish immigrants. The complainant said that AB applied that makeup in an attempt to make her resemble CD, a woman who had been his girlfriend in Ireland, and whose disappearance

and presumed death remained unsolved. She said that he would then remove the makeup, nails and eyelashes, leaving no evidence of his nefarious activities. [ 7 ] The complainant also asserted that she feared AB would imprison her in a secret underground bunker. She claimed to believe that he might strangle her and have sex with her corpse, as she thought he was a necrophiliac.

She reported that he had told her she would end up like CD and had threatened to kill her if she left him. [ 8 ] As noted above, these allegations – which would later be described by a police officer as “fantastic” – were first made and this prosecution played out against the backdrop of family law litigation relating to a child custody dispute. The complainant left the family home on June 27, 2014. She wished to return to Ireland with the children and take up a teaching job. AB refused that request. His refusal would result in the initiation of family law proceedings by the complainant in June of 2014.

The family law proceedings – an action under The Children’s Law Act, 1997 , SS 1997, c C-8.2 (now repealed), and a second action under the Divorce Act , RSC 1985, c 3 (2d Supp) – would feature multiple applications by AB for increased access to his children and a trial in the Court of Queen’s Bench. [ 9 ] The family law trial was held and completed in 2016. The trial judge reserved his decision. Shortly after, and before that decision issued, the complainant made allegations that AB had sexually abused his then five-year old daughter. The trial was reopened and continued in July of 2017.

In his unreported January 25, 2019, judgment, the family law trial judge found that the complainant’s allegations of sexual assault were not only untrue, but had been made “knowingly and with the intent to manipulate the course of litigation” (at para 456).

He awarded sole custody of the children – who had been residing primarily with the complainant in Regina – to AB and ordered that they would reside primarily with him in Saskatoon. [ 10 ] The family law proceedings would finally end on November 8, 2019, when this Court dismissed the complainant’s appeal of the trial decision: see S.T. v J.T. , 2019 SKCA 116 , [2020] 6 WWR 55. [ 11 ] The family law proceedings were not the only activity that resulted from AB’s refusal to let the complainant move the children to Ireland.

On July 4, 2014, a week after that refusal, the complainant provided a written statement to the Saskatoon police in which she made the first of the allegations against AB which would result in these criminal charges. In the July 4 statement, the complainant suggested that AB was connected to the disappearance of CD. She alleged that AB was “spiking” her drinks, sexually assaulting her while she was unconscious, and recording the sexual activity on video.

She disclosed that she recalled that such an event had occurred in May of 2014, when she had woken up sore, with flashbacks of AB recording them having intercourse. It was this alleged event that would become the subject of the first criminal charge. [ 12 ] There were other allegations in the written statement which, while they did not describe criminal activity, cast AB in a very negative light. The complainant wrote that AB was very friendly with the head of the KKK and shared his ideas.

She said that AB had purchased rural land to bury a 40-foot container which he intended to stock with food, guns and ammunition to survive a war that he believed to be on the horizon. She made allegations of mental illness in AB’s family that might be of concern in light of her other allegations. [ 13 ] The police did not lay charges based on the July 4 statement. [ 14 ] The complainant had by this time filed her petition pursuant to The Children’s Law Act, 1997 , and had applied for an order for sole custody of the children and that she be permitted to move the children to Ireland.

That mobility application was heard on July 21, 2014. The complainant’s affidavit in support of the application included, among other things, an assertion that she believed AB was responsible for the disappearance of CD. The mobility application was denied; however, the complainant was granted custody of the children, while AB was limited to supervised access once a week. [ 15 ] As a result of the complainant’s allegations relating to the CD case, the RCMP pursued the issue with the Irish police and with the complainant. On August 15, 2014, the complainant was interviewed by two RCMP officers, one of whom – Cst.

Climenhaga – would later be named as a defendant in the Queen’s Bench Action. In the August 15 statement, the complainant reiterated her allegations of sexual assault, including on May 24, 2014 [the May incident]. She no longer claimed to have been unconscious on that occasion. Rather, she said that she had pretended to be asleep or unconscious, as she was afraid. She said that she recalled AB applying makeup, false nails and false eyelashes to her before he assaulted her. [ 16 ] On August 17, 2014, AB was arrested and charged with having sexually assaulted the complainant on May 24, 2014.

The police seized videos that showed AB engaged in sexual activity with the complainant, while she was wearing makeup. Some of those videos showed the complainant applying makeup to herself and actively participating in the sexual activity after doing so. Some videos showed that she knew her actions were being recorded. None of the videos were sufficient to demonstrate that there had been a sexual assault, absent additional evidence from the complainant.

To the contrary, viewed on their own, the videos could be seen to undermine the complainant’s narrative by suggesting that she had been an active and willing participant in the activity said to comprise the alleged sexual assault. The police also found a bag of makeup in the trunk of AB’s car. [ 17 ] Ms. Rodgers assumed carriage of the file on August 27, 2014. She would continue as the lead prosecutor through the trial. [ 18 ] The police interviewed the complainant again on October 23, 2014, with a view to confirming whether the sexual activity shown on the videos was consensual.

There were many videos, including a video of the May 24 incident. The complainant told the police that some of the videos were of consensual sex and that some were not, including a video showing vaginal penetration with a cucumber which would later become the subject of the charge of sexual assault with a weapon. [ 19 ] The questioning of the complainant by the police at the October 23 interview in relation to the May 24 sexual encounter between AB and the complainant would become the keystone of his argument on this appeal.

There was a video of part of that encounter, which showed the complainant applying lipstick to herself and voluntarily performing oral sex on AB. In the following exchanges, the complainant appears to confirm that – contrary to her earlier statement that she had pretended to be an unconscious and passive victim – she remembered and was a willing participant in this part of the incident: [Cst. Climenhaga]: Do you remember doing this?

[Complainant]: Kind of now well. [Cst. Climenhaga]: Just be honest. [Complainant]: Yeah, I yeah. But I it’s (unintelligible) [Cst. Climenhaga]: So is this something that you wanted to do for him but maybe you didn’t quite know it was being recorded. [Complainant]: Yeah. No but I like I should have known but. But I. [Cst. Climenhaga]: And that’s in Flaxcombe. [Complainant]: That’s in Flaxcombe. … [Cst. Climenhaga]: Okay. And so you feel like you were aware and participating? [Complainant]: Well yeah. But I didn’t know it was being recorded or. … [Cst.

Climenhaga]: Do you feel like you could have given consent? [Complainant]: Well. It’s so hard to know. You know I mean. [Cst. Climenhaga]: Well. [Complainant]: I’m doing it and you know so. [Cst. Climenhaga]: None of us were there with you so. [Complainant]: No I know I didn’t stop him you know so. [Cst. Climenhaga]: Do you. [Complainant]: Yeah. [Cst. Climenhaga]: Do you remember doing that? Performing oral sex on him? (Unintelligible) in the video you’re like yes I remember. [Complainant]: Yeah.

Yeah. [ 20 ] The constable, after questioning the complainant about other incidents, told the complainant that she wanted to look again at the May 24 video, and asked these questions: [Cst. Climenhaga]: But then you think that night is that night that progressed on to you telling us that he pulled you to the side and then raped you? [Complainant]: Yeah. [Cst. Climenhaga]: And you were kinda frozen (unintelligible). [Complainant]: Yeah. I think that’s that night. … [Cst.

Climenhaga]: Do you think that you’re consenting to this like do you think this is? [Complainant]: I think I’m just really like just really drunk. [Cst. Climenhaga]: Do you have a memory of this? [Complainant]: I don’t remember putting on the lipstick. [Cst. Climenhaga]: And then throwing it. [Complainant]: I don’t remember putting the lipstick on me but I’m. [Cst. Climenhaga]: But you have no memory of this and you don’t really put it anywhere you just throw it. Like you’re very. [Complainant]: I think I’m just very like. [Cst.

Climenhaga]: Out of it. [Complainant]: Like that night I felt sick kind of that night and I went to bed cause I didn’t want to have sex with him that night but

then there’s this but then I think I fell asleep and then I thought he went out of. [Cst. Climenhaga]: You didn’t think that this happened? [Complainant]: Like this is the night where I thought everything with the makeup but then I thought what happened and I think I was thinking he put his dick in my mouth but I don’t really know if it was that night cause I couldn’t remember it. [Cst. Climenhaga]: So you’re kinda in and out consciousness. [Complainant]: Yeah I’m. [Cst.

Climenhaga]: I’m going to tell you that if you’re in and out of consciousness that you have no memory of this incident even though you’re performing it you cannot be providing consent because you don’t even know it’s happening. I see that there’s things on here that you’re doing. [Complainant]: Yeah. [Cst. Climenhaga]: But you have to talk with a physician and say if you were drunk or roofied or whatever can you even give consent I don’t know. [Complainant]: I don’t know. [Cst. Climenhaga]: But you have no memory of this? [Complainant]: But I don’t remember this happening.

But I then cause it’s funny like I said to you already like it’s like I was frozen and kinda thinking like I should have done something. [ 21 ] It was AB’s position on this appeal that at this point, the case against him should have been closed, as the complainant had admitted the May 24 sex was consensual. In his view, it had become clear there was no prospect of conviction. He characterized Cst. Climenhaga’s actions in telling the complainant she had no memory and did not consent as an improper and malicious attempt “to keep the prosecution going at a time when it had run aground”. He noted that Ms.

Rodgers had reviewed the recording and transcript of this interview and knew what had happened but proceeded nonetheless, in reliance on evidence which he described as “unethically procured and false”. [ 22 ] However, the case was not closed. To the contrary, on November 3, 2014, AB was charged with one additional count of sexual assault, one count of sexual assault with a weapon, and two counts of uttering threats to cause death to the complainant. He was committed for trial on all of these charges following a preliminary inquiry.

As noted, he was acquitted after his trial before a Queen’s Bench judge, sitting alone. B. The Judgment [ 23 ] Ms. Rodgers’s

summary judgment application was decided based on both viva voce and affidavit evidence. Ms. Rodgers tendered her own affidavit and reply affidavit and affidavits sworn by Cory Bliss, Frank Impey and Anthony Gerein, Q.C. Mr. Bliss and Mr. Impey are Senior Crown prosecutors who played a role in this prosecution at the behest of Ms. Rodgers. Mr. Gerein is the Assistant Deputy Attorney General for the Public Prosecutions Division of the Ministry of Justice, Government of Saskatchewan. [ 24 ] The viva voce evidence, which was given in open court, was that of AB and Ms. Rodgers. At the behest of Ms.

Rodgers and with the agreement of AB, it included not only cross-examinations on affidavits, but examinations in chief. Although AB took no issue with this procedure, he did not agree that Ms. Rodgers’s application was suitable for disposition by

summary judgment. Rather, he took the position at the

summary judgment hearing that the matter should proceed to trial. In argument before this Court, AB’s counsel confirmed that this issue was not being pursued in this appeal. [ 25 ] In the Judgment, the application judge adopted a statement of the elements of the tort of malicious prosecution that he had made in his earlier decision to hear oral evidence in the

summary judgment application: [5] … … The elements that must be established in order to succeed in a malicious prosecution action are well known. They are found in Nelles v 0ntario, [1989] 2 SCR l 70 and have since been reviewed and refined in Proulx v Quebec (Attorney General) , 2001 SCC 66 , [2001] 3 SCR 9, Miazga v Kvello Estate, 2009 SCC 51 , [2009] 3 SCR 339, Henry v British Columbia (Attorney General). 2015 SCC 24 , [2015] 2 SCR 214 and R v Cawthorne, 2016 SCC 32 , [2016] 1 SCR 983. They are: a. That the proceedings must have been initiated or continued by the defendant: b.

The proceeding must have terminated in favor of the plaintiff; c. The absence of reasonable and probable cause determined on an objective assessment of the existence of sufficient cause; d. Malice, or a primary purpose other than that of carrying the law into effect which requires a finding that the defendant both lacked a subjective belief in sufficient grounds to prosecute and wilfully and deliberately prosecuted for an improper purpose.

Inadvertence, incompetence, inexperience, poor judgement, lack of professionalism, laziness, recklessness, honest mistake, negligence or even gross negligence are not enough. [ 26 ] The application judge then briefly reviewed the positions of the parties before turning to his analysis, which dealt with the third and fourth elements. He found that the oral testimony enabled him to assess Ms. Rodgers’s credibility (at para 21), which AB had agreed

was central to deciding whether the third and fourth elements had been made out. On that basis, he reached the following conclusion: [22] I have concluded that I need not address the questions of whether there was, on an objective basis, a sufficient basis to continue the prosecution or whether the Applicant prosecuted for an improper purpose. Having heard of the Applicant’s testimony I have concluded that she had a subjective belief, honestly held, that there was a sufficient basis to continue the prosecution and therefore acted with no improper purpose. [ 27 ] The application judge explained this conclusion.

He noted that Ms. Rodgers’s credibility had been “thoroughly challenged on cross-examination” and listed 14 of the questions that had been put to her (at para 25). One of those questions referred to the evidence relating to the October 23 interview which, as I have noted, was the foundation for AB’s submissions on this appeal: (

d) Why she relied on portions of a statement given by the complainant where the complainant adopted answers suggested to her by the investigating officer[.] [ 28 ] The application judge commented that “the logic of [Ms. Rodgers’s] responses to these questions varied” (at para 26). He identified unresolved questions about the evidence relating to Ms. Rodgers’s decision to charge AB with a breach of his release conditions and as to her response to Cst.

Climenhaga’s conduct in the October 23 interview: [32] The series of events and communications surrounding the Applicant’s recommendation to lay the breach of release condition charges contains some ambiguous communications. It is somewhat curious as to why the Applicant who was seemingly thorough in using written communications did not reduce to writing the message she says she delivered in the phone call with the investigating officer where she says they discussed the reasons for not sending communications from the complainant to her.

Similarly, the Respondent argues that it is odd that the Applicant did not bring to the investigating officers attention that it would be inappropriate for them to be directly interfering with a family law dispute or that she did not comment on or caution the investigating officers on the interview technics 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. [ 29 ] However, the application judge found that these unanswered questions did not affect his ability to answer what he considered to be the only question that needed to be resolved: [33] Those are matters that will no doubt gain clarity as the case against the Remaining Defendants proceeds.

So far as those matters are relevant to this application, I find that they did not affect my assessment of the Applicant’s credibility on the question of whether she had an honest subjective belief that the evidence was capable of proving the guilt of the Respondent beyond a reasonable doubt. I will address my findings as to the Applicant’s credibility later in these reasons. [ 30 ] I note that AB argued in the Court of Queen’s Bench that it should be inferred that Ms.

Rodgers charged him with a breach of his release conditions for the improper purpose of assisting the complainant in a looming application in the family law proceedings. Again, AB did not press this issue on appeal. Indeed, his counsel expressly confirmed that AB did not claim that Ms. Rodgers was attempting to assist the complainant in the family law proceedings. Rather, it was his theory that, at least after the October 23 interview, her purpose was to assist the Irish police in the CD investigation.

Similarly, and apparently as a result of that position, he took no issue with the fact that the application judge decided that clear answers to the questions set out in paragraph 32 of his judgment would only be available “as the case against the Remaining Defendants proceeds”. [ 31 ] The application judge next reviewed (at para 34 et seq ) Ms. Rodgers’s evidence.

He concluded that some of her testimony demonstrated a lack of objectivity, noting by way of example that her “refusal to acknowledge when shown a segment of one of the videos that the complainant was conscious and participating in the sexual encounter was troubling” (at para 34). He commented that a similar lack of objectivity was reflected in Ms. Rodgers’s evidence that, looking back, she would not have done anything differently, despite the trial judge’s conclusion that the Crown’s theory bordered on the impossible.

As the application judge said: [37] I have a difficult time accepting that after prosecuting a case which was found to be so weak that the Applicant, if she had “objectively” reassessed the evidence, the positions she took and the result that she could not have identified something that could or should have been done differently. [ 32 ] As to the key issue of Ms.

Rodgers’s assessment of the complainant’s credibility, the application judge made the following observations: [39] The Applicant told me that she did consider whether the complainant was credible and took into account her motive to fabricate but still found the complainant to be believable. In my assessment, she largely formed that as a personal view.

How she could maintain that view if being objective and giving serious consideration to the inconsistencies in the complainant’s evidence as found in her statements, between those statements and the affidavits she filed in the family law litigation and the videos is difficult to understand.

Perhaps she wanted to believe the complainant. … [40] What I glean from the whole of the evidence is that at no time did the Applicant review all of the evidence to be presented at trial and thoroughly assess what the chances were that the complainant’s evidence would be accepted at trial. … [ 33 ] All of this, however, did not lead the application judge to conclude that Ms. Rodgers lacked an honest belief that there was sufficient evidence to prosecute. He referred to six factors which he thought supported the conclusion that she had this honest belief: (

a) Ms. Rodgers considered that the videos portrayed only a point in time and not any other time; (

b) A trier of fact would have no difficulty considering the use of a cucumber as shown in the video as non-consensual; (

c) Ms. Rodgers has “an acute sensitivity to the victimization, fear and trauma suffered by sexual assault victims, and the inability of victims to have a clear memory of events or the details of those events”, as a result of her volunteer and professional experience in dealing with sexual assault cases (at para 42);

(

d) Ms. Rodgers asked other lawyers from her office to “co-chair in the prosecution”, and thus to look over her shoulder, and would not have done so if she lacked a subjective belief in the sufficiency of the evidence or had a malicious purpose (at para 42); (

e) There was no evidence that Ms. Rodgers had a motive to assist the complainant in the family law litigation, such as a prior acquaintance with either of them; and (

f) Ms. Rodgers took account of the CD investigation only to narrate and explain the threats allegedly made by AB and did not participate in that investigation. [ 34 ] The application judge also emphasized that he had “carefully” watched Ms. Rodgers during her testimony and “did not see anything in her demeanour or responsiveness that suggested she was being untruthful” (at para 43).

He then assessed the effect of this key conclusion in light of his understanding of the law: [43] … I readily accept that when the Applicant said she believed in the sufficiency of the evidence to proceed to trial she was being truthful.

As mistaken or misguided as those beliefs might have been, they were honestly held. [44] No doubt the Respondent may find this decision incredible asking how it can be that you can repeatedly explain to a prosecutor why the Crown has no case to prosecute then go to trial and have the trial judge find the Crown’s case improbable and bordering on impossible only to find the conduct of the prosecutor is excusable. While I certainly have some sympathy for the Respondent the simple answer is that the law requires proof of much more in order to succeed in a civil action for malicious prosecution.

The Supreme Court of Canada in the Kvello Estate and the companion decisions cited earlier set out the just and necessary reasons to protect the exercise of prosecutorial discretion based on honestly held beliefs and intentions no matter how misguided. [ 35 ] The application judge also considered how Ms. Rodgers could have honestly believed that it would be possible to prove AB’s guilt beyond a reasonable doubt, given the bizarre nature of the allegations.

He noted that the prosecution turned on the complainant’s credibility and, citing Miazga v Kvello Estate , 2009 SCC 51 , [2009] 3 SCR 339 [ Kvello ], that it is particularly difficult to establish an absence of reasonable and probable cause in such a case. Further, it was his opinion that the allegations were not so bizarre as to be incapable of belief.

On that basis, he found that pursuing the prosecution based on these allegations “does not prevent a favourable assessment of the Applicant’s credibility on the sole question of whether she had a subjective belief that there was just cause to prosecute” (at para 47). [ 36 ] The application judge turned finally to the question to be answered on a

summary judgment application; that is, was there a genuine need for trial, in this case as to whether Ms. Rodgers had an honest subjective belief that the evidence was capable of proving guilt beyond a reasonable doubt? He reiterated that he was able, with the benefit of the oral evidence, to exercise his power pursuant to Rule 7-5(2)(

b) of The Queen’s Bench Rules to assess Ms. Rodgers’s credibility in relation to that issue, and that it was not in the interests of justice to exercise that power only at trial.

He then cited the following statement by Charron J. in Kvello : [56] Kvello Estate at para 79 says “… if the court concludes that the prosecutor initiated or continued the prosecution based on an honest , albeit mistaken, professional belief that reasonable and probable cause did in fact exist, he or she will have a cted for the proper purpose of carrying the law into effect and the action must fail ”. [ 37 ] In the result, “[h]aving concluded that the Applicant had an honest professional belief in the sufficiency of the evidence”, the application judge granted the application for

summary judgment dismissing the action (at para 57). III. ANALYSIS [ 38 ] AB took no issue with the legal principles applied by the application judge, including those relating to the elements of the tort of malicious prosecution. Nor did he allege that the application judge’s conclusion that there was no genuine issue for trial was a palpable and overriding error of fact. Rather, he alleged that the application judge erred by failing to consider the following evidence: (

a) The complainant said in the October 23 interview that she remembered the sexual activity in question and that it was consensual; (

b) Cst. Climenhaga told the complainant that she did not remember and that the sexual activity could not have been consensual; and (

c) Ms. Rodgers approved of this and used the resulting testimony. [ 39 ] In AB’s view, the evidence that resulted from the October 23 interview was “falsified and corrupt”. He submitted that if the application judge had considered how this evidence was obtained, he would have come to a different conclusion. He buttressed his argument by explaining how, in his view, the failure to deal properly with the evidence of the October 23 interview undermines the six reasons specified by the application judge in support of his conclusion that Ms. Rodgers had an honest subjective belief.

He submitted, for example, that the video of the May 24 incident was more than enough to undermine the complainant’s claim that AB had sexually assaulted her that day. He made this point in response to the application judge’s reliance on the fact that Ms. Rodgers thought the videos portrayed only what was happening at a point in time and at no other time. [ 40 ] A second example is AB’s response to the application judge’s conclusion that a trier of fact would have no difficulty finding that the May 24 incident was non-consensual.

He submitted that the May 24 video and the October 23 interview would have irreparably harmed the complainant’s credibility, as the charge relating to the May 24 incident was – as he put the matter in his factum – “the basis for everything in the prosecution up to that point; it was alleged and re-alleged” in the family law proceedings and in reports to and interviews by the police. As such, he argued that Ms. Rodgers knew the complainant’s evidence lacked sufficient credibility to support the charge of sexual assault with a weapon.

[ 41 ] As to the involvement of other prosecutors who could look over her shoulder, he argues that it was of no moment, as Ms. Rodgers did not tell them about the October 23 interview. [ 42 ] Ms. Rodgers submits that AB’s appeal, properly distilled, alleges an error of fact and, as such, that the standard of review is palpable and overriding error.

She is correct that the standard of review in relation to alleged errors of fact is palpable and overriding error, regardless of whether the evidence is adduced viva voce or by affidavit: Yorkton (City) v Mi-Sask Industries Ltd. , 2021 SKCA 43 at paras 22–25 , [2021] 6 WWR 18; Canada (Attorney General) v Bedford , 2013 SCC 72 at paras 54–56 , [2013] 3 SCR 1101.

However, the argument advanced by AB constitutes an allegation that the application judge erred in principle – or put differently, committed an error of law – by misapprehending or overlooking material evidence. [ 43 ] The standard of review on an appeal of a decision in a

summary judgment application was summarized in Hess v Thomas Estate , 2019 SKCA 26 , 433 DLR (4th) 60: [29] … A decision as to whether there is a genuine issue for trial on a

summary judgment application is a mixed question of fact and law. Where there is no extricable error in principle, it should not be overturned absent a palpable and overriding error: Deren v SaskPower , 2017 SKCA 104 at para 41 ; Hryniak at para 81. It is an error in principle to misapprehend or overlook material evidence: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 [ Housen ].

Questions of fact are assessed on the palpable and overriding error standard and questions of law on the correctness standard: Housen . [ 44 ] AB’s argument is that the application judge misapprehended or overlooked material evidence. Accordingly, the standard of review in relation to the issue of whether he did so is correctness. [ 45 ] The standard of review does not save the day for AB. The October 23 interview was a very important event, particularly given the other inconsistencies as between the complainant’s various affidavits, witness statements and testimony. However, and as counsel for Ms.

Rodgers pointed out, the Judgment confirms that the application judge did consider the evidence relating to that interview. Indeed, as noted above, he specifically referred to Ms. Rodgers as having been cross-examined as to why she relied on answers given by the complainant at the October 23 interview which were suggested to her by Cst. Climenhaga.

He made this point in the course of assessing factors that might undermine the complainant’s credibility, which is the underlying issue of concern to AB. [ 46 ] As is also noted above, that specific question was only one of the 14 questions identified by the application judge as being relevant to credibility (Judgment at para 25). The nature and scope of those questions confirmed that he considered the evidence relating to the October 23 interview in the context of the evidence as a whole. By way of example, the other questions included the following: (

a) Why [Ms. Rodgers] thought the complainant of the sexual assaults would be believed in the face of outlandish stories like being threatened to be locked in a secret bunker, being sent home in a box or her suspicion that [AB] was a necrophiliac; (

b) Why did [Ms. Rodgers] think the complainant was capable of belief when the initial statement she gave police was inconsistent with the affidavit material she filed in the family law litigation? ... … (

f) Why [Ms. Rodgers] continued to rely on a portion of an affidavit sworn by the complainant in the family law proceeding and portion of a statement given by her to Saskatoon Police where she said she was drugged by [AB] when that evidence was inconsistent with subsequent statements given to police and why she continued to rely on these statements after those inconsistencies were pointed out to her by [AB]; … (

l) Why [Ms. Rodgers] continued to rely on the complainant’s statement that the accused had put makeup on her from a bag of makeup found in [AB’s] locked car when the videos showed the complainant putting lipstick on herself; … (

n) Generally, why [Ms. Rodgers] persisted in prosecuting when she was on numerous occasions advised by [AB] of the numerous inconsistencies in the complainant’s evidence and when the complainant, because of the issues in the family law litigation, had a clear motive to fabricate. [ 47 ] Further, the application judge expressly referred to the fact that Ms.

Rodgers “did not comment on or caution the investigating officers on the interview technics [ sic ] 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” (Judgment at para 32). That too demonstrates that he considered the impugned evidence from the October 23 interview and directed his mind to the reason AB was concerned with the use of that evidence. [ 48 ] In the result, I conclude that there was no error of the kind alleged by AB. AB did not challenge the finding of fact that Ms.

Rodgers 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. Indeed, he took the position that this finding of fact was entitled to deference. Given that Ms. Rodgers 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. [ 49 ] This decision illustrates a troubling reality about the tort of malicious prosecution.

In Henry v British Columbia (Attorney General) , 2014 BCCA 15 , 370 DLR (4th) 742 [ Henry ], Hall J.A. commented that the decision in Proulx v Quebec (Attorney General) , 2001 SCC 66 , [2001] 3 SCR 9 [ Proulx ], “demonstrates that malicious prosecution can be an efficacious remedy to one harmed by prosecutorial misconduct” (at para 23). Mr. Proulx would no doubt agree with Hall J.A. [ 50 ] However, it is difficult to take issue with Professor Don Stuart’s comment about Proulx in his annotation of Henry :

… Although a one million dollar award for malicious prosecution was confirmed by the Supreme Court in Proulx c. Québec (Procureurgénéral) (2001), 2001 SCC 66 , 46 C.R. (5th) 1 (S.C.C.), it is clear that this result is the anomaly and that the civil remedy formalicious prosecution in reality rarely succeeds: see David Debenham, “Who is Investigating Your Investigator?” in Todd Archibald andRandall Echlin, eds, Annual Review of Civil Litigation 2012 (Toronto: Carswell, 2012) at 351.

It seems strange that courts routinely find police accountable for Charter breaches (especially in decisions to exclude under section 24(2)),but there is now virtually no legal accountability for Crown misconduct. [51] AB would no doubt agree with Professor Stuart. The application judge made findings of fact as to Ms. Rodgers’s conduct that,to a person in the position of AB, would be very difficult to square with the

summary dismissal of the Queen’s Bench Action. That is notto suggest that the application judge erred as alleged or at all or that he reached the wrong result. Indeed, the result in this case might havebeen expected. Counsel for Ms. Rodgers confirmed at the hearing of this appeal that he was aware of no case other than Proulx in which aCrown prosecutor had been successfully sued for malicious prosecution.

Although there have been successful claims against policeofficers and others, and may have been cases that were unreported or settled, I am also not aware of any other successful claims againstCrown prosecutors. [52] The fact that Proulx is a unicorn reflects the reality that an accused who claims in malicious prosecution against a Crownprosecutor faces a monumental task.

The legal test they must meet strikes a particular balance between “the right of individual citizens tobe free from groundless criminal prosecutions and the public interest in the effective and uninhibited prosecution of criminalwrongdoing”: Kvello at para 52; Proulx at para 35. Among other things, a plaintiff must prove malice, and, as Charron J. reiterated inKvello, “malice does not include recklessness, gross negligence or poor judgment” (at para 8).

For that reason, a Crown prosecutor that isfound to have had an honest subjective belief in reasonable and probable cause cannot be found liable, regardless of how unreasonable thatbelief may be: Kvello at para 79. [53] These real-world results give me pause for thought. The seminal decision in Nelles v Ontario, (SCC), [1989] 2SCR 170 [Nelles] – the first of the Supreme Court’s trilogy on this tort – rejected the notion of absolute immunity for prosecutors.

AsLamer J. there said, “the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly andmaliciously prosecuted” (at 171–172).

On the assumption that prosecutors must err, and being human, will sometimes err grievously, itmight be asked whether the tort of malicious prosecution is an adequate response to this threat, and whether these results square with thisobservation by Abella J. in Ontario (Attorney General) v Clark, 2021 SCC 18, 456 DLR (4th) 361 [Clark]: [26] Since Nelles, our judgments on prosecutorial liability have been underscored by a careful balancing between the policyconsequences of exposing prosecutors to liability, versus the need to safeguard and vindicate the rights of the accused, who is uniquelyvulnerable to the misuse of prosecutorial power. [54] Put differently, has the tort been defined and applied in such a manner that, for practical purposes, absolute immunity livesquietly on behind a veil created by the trilogy?

If so, does that result accord with the recognition by Nelles that the courts must have a role– although for very good reasons, a strictly constrained role – in relation to this important aspect of the rule of law? It is arguable it doesnot. [55] As Abella J. emphasized in Clark at paragraph 28, prosecutorial independence is necessary to protect the “quasi-judicial role”of Crown prosecutors as “ministers of justice”: Kvello at paras 46–47. That is true not only to prevent political interference, but to shelterCrown prosecutors from other forms of public and private pressure.

When taken by a Crown prosecutor, the decision to initiate or continuea prosecution “is one of the ‘core elements’ of prosecutorial discretion, thus lying ‘beyond the legitimate reach of the court’ under theconstitutionally entrenched principle of independence: Krieger v. Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372, at paras. 32and 46”: Kvello at para 6. [56] There is, however, another side to this coin.

In the long run, prosecutorial independence can be justified only if the coreelements of the prosecutorial function are exercised “objectively and independently in the interests of the integrity of the system and therights of the accused” (Clark at para 30). There is compelling evidence that Crown prosecutors and senior Crown prosecutions officialsconsistently strive to and do meet that goal. Nelles was intended to create a remedy for those rare cases where they do not. If that remedyhas proven to be illusory, an important piece of the accountability puzzle may be missing. IV.

CONCLUSION [57] For these reasons, I would dismiss AB’s appeal. As to costs, Ms. Rodgers was represented by counsel from the SaskatchewanMinistry of Justice, who did not press the issue at the hearing. In the circumstances, I would make no order as to costs. “Barrington-Foote J.A.” Barrington-Foote J.A.I concur. “Leurer J.A.” Leurer J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.