Wrongful Arrest Claim Dismissed—No Affidavit, No Problem

On June 8, 2023, the Court of King’s Bench of Alberta granted a summary dismissal application in favour of a defendant group of police forces and Crown prosecutors. Of particular note in this case is the procedural issue of evidence necessary for a summary dismissal order, as well as a summary of the law relating to a wrongful arrest/prosecution action.

The Case: Bennett vs. Treit, 2023 ABKB 348
The plaintiff was a retired police officer and alleged gun trafficker from southern Alberta who was acquitted of 11 criminal offences at trial. After acquittal, the plaintiff filed a civil action against multiple organizations that were involved in the criminal prosecution. The plaintiff claimed damages for false arrest, malicious prosecution, negligent investigation, misfeasance in public office, civil conspiracy and an infringement of his right to be secure against unreasonable search and seizure pursuant to the Canadian Charter of Rights and Freedoms. 

No Affidavit, No Problem
In this case, one of the defendants did not submit an affidavit in support of its summary dismissal application. The plaintiff argued that, for the application to be successful, the defendants need to “put their best foot forward” and that not submitting an affidavit should be fatal to the application. 

The Court found that this one defendant could rely on the materials filed by the other defendants, as Rule 7.3(2) of the Alberta Rules of Court states that a party can rely on other evidence, as long as the test for summary dismissal has been met. The factual basis of the application could be discerned from the other co-defendants affidavits and common evidence before the court. A stand-alone affidavit sworn by that defendant was not deemed necessary for the application to succeed.

Decision
Summary dismissal was granted, and the plaintiff’s action against the defendants was dismissed entirely. The Court held that the prosecution had reasonable and probable cause to believe the plaintiff had committed the alleged crimes and proved on a balance of probabilities that there was no merit to the claims against it. 

Alleged Torts
Each alleged tort by the plaintiff was examined by the Court, which determined either that the torts were statutes barred by the Limitations Act or that the plaintiff had failed to prove one or more of the elements of each tort. The analysis of the torts serves as a good reminder of what the Court is looking for from the parties when establishing if the elements have been met.

Negligent Investigation

• Test: plaintiff must prove that the investigating officers or agency 

1. owed the plaintiff a duty of care; 
2. breached that duty of care and;
3. caused the plaintiff compensable damages as a result.

• Case Context: 

o  Plaintiff alleged that one of the police forces stopped investigating a break-and-enter offence after the second police force advised them they believed that the plaintiff was using the break-in to cover his firearm trafficking. 
o  Plaintiff also alleged that the police forces were pressured to lay criminal charges. 

• Decision: 

o  No duty of care was owed from the police force to the plaintiff as he was a complainant, and case law establishes that—in most instances—police do not owe a duty of care to the victim of a crime. 
o  Evidence contradicted the plaintiff’s claim of police forces being pressured to lay criminal charges.

Malicious Prosecution

• Test: plaintiff must prove that

1. the proceedings were initiated by the defendants;
2. the proceedings were terminated in favour of the plaintiff;
3. there was an absence of reasonable and probable cause to justify the proceedings and;
4. the defendants acted with malice, or there was a primary purpose other than carrying the law into effect. 

• Case context: 

o  Plaintiff alleged that the prosecution had no reasonable and probable cause for conviction and that it was done out of malice.  
o  While the first two elements that the plaintiff must prove are solely based on the facts, most cases turn on elements three and four. 
o  Test for absence of reasonable and probable cause: 

1. Subjectively, did the prosecutor believe that guilt could properly be proven?
2. Objectively, was that belief reasonable in all of the circumstances?

o  Test for malice:

1. Did the Crown prosecutors have an intention other than to carry out their duties according to law?
2. Did their acts reflect a fraud on the process of criminal justice, such that they perverted or abused their office?

• Decision:

o  Four separate Crown prosecutors reviewed and continued the case against the plaintiff throughout multiple stages of the action. Each of the prosecutors were questioned on their affidavits, on the specific basis that 1) there were not any reasonable and probable grounds to prosecute and 2) the prosecutors all independently gave their reasonable theories, all subjectively believing that guilt could be properly proven. 
o  For most of the defendants, the plaintiff was not able to particularize or bring evidence to allow a finding of malice. The police defendants were determined to have reasonable and probable grounds to lay charges and pursue prosecution, which disqualified the plaintiff’s claim that the Crown had acted with malice in the action. 

Misfeasance in Public Office

• Test: plaintiff must prove that 

1. the defendants engaged in deliberate and unlawful conduct in the course of exercising their public duties and;
2. the defendants had knowledge that such conduct was unlawful and likely to cause injury to the plaintiff. 

• Case context:

o  Plaintiff argued that the Crown defendants abused their public office by entering an immunity agreement with a witness of unsavoury character and placing undue reliance on his testimony, while in possession of other contradictory evidence. 

• Decision:

o  The decision to grant an immunity agreement is discretionary in nature and not subject to judicial review. It is expected that sometimes prosecution must call upon unsavoury witnesses to be effective. 
o  The agreement and accompanying information were disclosed to the plaintiff and the Court during the proceedings. There was no evidence which showed flagrant impropriety or violation of the principles of fundamental justice. Furthermore, the fact that an unsavoury witness was used in the proceedings does not amount to misfeasance in public office. 

Should you have any questions or need further information on this insight or on related matters, please contact Don Dear, K.C., in our Calgary office.