The Plaintiff (“TR”) alleged that she was sexually assaulted by the Defendant (“KT”). Criminal charges for the alleged sexual assault (the “Criminal Charges”) were ultimately stayed due to a delay in prosecution which arose because KT was not arrested for over 3 years after the arrest warrant was issued, notwithstanding that his address had remained unchanged.

In the Statement of Claim for the underlying civil proceeding (the “Claim”), TR sued KT for damages but also sued the investigating Detective and the Chief of Police (collectively, the “CPS”). The CPS applied to strike the Claim against it pursuant to Rule 3.68 on the basis that the Claim disclosed no reasonable claim against the CPS.

Master Prowse reviewed the facts of the Claim and noted particularly that the Claim alleged: (1) the Criminal Charges against KT were stayed due to the negligence of the CPS in not diligently pursuing the arrest of KT, and TR suffered damages in that regard; (2) that TR underwent what turned out to be an unnecessary and intrusive physical examination at the Sheldon Chumir Centre, and suffered psychological injuries due to the emotional trauma upon hearing that the charges against KT had been stayed; and (3) assault and battery by the CPS Defendants.

Master Prowse also reviewed the relevant jurisprudence on civil claims brought by private citizens against public bodies, including the police, and noted that they typically fail on the basis that the public body does not owe a private duty of care to the injured party. Master Prowse found, however, that the Claim should proceed to Trial unless the CPS Defendants could demonstrate that case law already existed which showed that the Claim was untenable. Master Prowse found that the CPS had not provided any such case law. The Claim in negligence was considered novel and was allowed to proceed to Trial.

Turning to the issue of assault and battery, Master Prowse found that the Claim stated, among other things, that CPS members requested that a sexual assault kit be performed and samples be collected, but those samples were never utilized in the prosecution of KT. Accordingly, the Claim alleged that the CPS officers fraudulently obtained the consent of TR to perform this intrusive procedure, since they had no intention of using the results for the prosecution of KT. Master Prowse concluded, among other things, that common sense dictated that the CPS officers who accompanied TR to the Sheldon Chumir Centre would not, at that time, have known that a decision would be made later to not send the kit for testing. Master Prowse noted that it is hardly in the interest of sexual assault victims generally to seek to impose liability on the police for obtaining sexual assault kits, as opposed to not obtaining sexual assault kits. Accordingly, Master Prowse found that there were insufficient facts pleaded to support the claim against the CPS for assault and battery and struck those allegations from the Claim.