Reasons for Decision

PETERBOROUGH COURT FILE NO.: CV-20-00000196-0000
DATE: 2025-02-11
ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
Adam Bullock, Plaintiff/Defendant by Counterclaim
– and –
Jane Doe, Defendant/Plaintiff by Counterclaim

Appearances:
Jeffrey Ayotte, for the Plaintiff/Defendant by Counterclaim
Anna Matas and Abby Deshman, for the Defendant/Plaintiff by Counterclaim

Heard: January 10, 2025

REASONS FOR DECISION
Healey J.

Nature of the Motion

[1] In 2018, Adam Bullock was criminally charged with sexual assault of Jane Doe. They were both students at a university located in Ontario at the time of the alleged assault. The charges were subsequently withdrawn by the Crown. Bullock then commenced this action, seeking general damages in the amount of $250,000 for malicious prosecution, and a further amount of $1.1M in special and aggravated or punitive damages.

[2] Doe has counterclaimed, seeking general damages for physical and sexual assault and/or battery, and intentional infliction of mental suffering in the amount of $500,000.00, as well as aggravated and punitive damages in the amount of $250,000.

[3] By order of Justice Woodley dated May 28, 2024, the defendant’s name has been anonymized, all documents filed to that date ordered to be sealed and not form part of the public record, and in future filings, identifying information redacted or, where not practicable, the record is to be sealed. The order also imposed a publication ban in respect of Jane Doe’s identity and all identifying information.

[4] The action is to be tried before a jury.

[5] Doe brings this motion for summary judgment to dismiss the action in its entirety. If Bullock’s claim is dismissed, Doe’s evidence is that she will discontinue her counterclaim.

Position of the Parties

[6] Both parties agree that the issue on this motion is not for the court to decide whether a sexual assault occurred, but rather whether this is a case that is appropriately decided by summary judgment.

[7] Doe’s position is that the evidence does not permit a finding that Bullock can meet the onerous test required to establish a claim for malicious prosecution, and that it fails at the outset of the test. The court does not have to conduct a trial to reach the conclusion that Bullock’s claim cannot succeed; this case can be fairly decided on the record, and summary judgment results in the most expeditious and cost-effective resolution of the proceeding.

[8] Bullock’s position is that this case should not be determined on a summary judgment motion. This is one of those exceptional cases in which Doe could be found to have initiated the proceeding, due to her withholding of relevant, exculpatory evidence. This issue, as well as whether she had reasonable and probable grounds for reporting to the police and was motivated by malice, are all live issues. A trial is needed to provide oral evidence from numerous witnesses, which is necessary for the court to make findings of credibility and reliability, central to the live issues to be decided in the case. These credibility and reliability findings are critical to determining whether Bullock can satisfy the test for malicious prosecution.

Issue

[9] The sole issue to be determined is whether this malicious prosecution action requires a trial for a fair and just determination on its merits, or whether this court is satisfied that there is no genuine issue requiring a trial with respect to Bullock’s claim.

[10] For the following reasons, this court has determined that there is no such genuine issue, and that summary judgment dismissing the claim must be granted pursuant to Rule 20.04(2)(a).

The Law

[11] The parties agree on the law applicable to this motion.

Malicious Prosecution

[12] The test for establishing malicious prosecution from the seminal case of Nelles v. Ontario was confirmed by the Supreme Court of Canada in Miazga v. Kvello Estate. The four-part test is:

(a) the prosecution must have been initiated by the defendant;
(b) the prosecution must have been terminated in favour of the plaintiff;
(c) the absence of reasonable and probable cause for prosecution; and
(d) malice, or a primary purpose other than that of carrying the law into effect.

[13] The failure to establish any one of these four elements is fatal to the plaintiff’s case.

[14] The requirement to meet all four of these elements imposes a high burden on a plaintiff pursuing a malicious prosecution action. The Court of Appeal for Ontario has explained, in Curley v. Taafe, at para. 20, that “[t]he bar for a successful malicious prosecution action is deliberately set high, to avoid unduly chilling the willingness of individuals to seek recourse from the police”. These actions are more typically pursued against state actors such as the police or Crown officers.

[15] Malicious prosecution is even more difficult to establish when a plaintiff seeks to establish liability of a private individual, and it involves different considerations.

Initiating the Prosecution

[16] The first element of the test for malicious prosecution is the one most critically at issue in this case, requiring a detailed examination of the law.

[17] The Court of Appeal for Ontario has determined that the police officer who laid the charge will generally be considered to have initiated a prosecution.

[18] However, in exceptional circumstances, a complainant could be found to have initiated a prosecution where “through knowingly supplying misinformation or withholding evidence, or through other wrongful conduct, the complainant compromised the police investigation and/or the independence of the decision by police to lay charges”.

[19] While the requirement to prove that a complainant initiated a prosecution is a high bar, it is not necessary to demonstrate that it was “‘virtually impossible’ for the police to exercise any independent discretion or judgment”.

[20] Showing that a complainant deliberately withheld exculpatory information or misled the police is not enough to establish the first factor. Decisions from the Court of Appeal for Ontario show that these cases are highly fact-driven, focusing on the nature of the complainant’s wrongful conduct and its direct effect on the police investigation and decision to lay charges.

[21] That Court has also never articulated a comprehensive list of the factors that could satisfy the element of initiation.

[22] In McNeil, McNeil sued his former employer for malicious prosecution after being exonerated of criminal charges. His employer had complained to the police of alleged thefts of money from the cash register that he was operating at a Brewers Retail outlet. A video camera had recorded his monetary transactions, which contained both inculpatory and exculpatory segments. When management reported the alleged thefts, they did not refer to the exculpatory segments of the tapes and never told the police that those segments existed. Further, the investigating officer could not access the videotape without the assistance of the employer and its security company, and was never shown the exculpatory segments of the videotape until after the criminal trial. A jury found that Brewers Retail initiated the criminal proceedings against McNeil. On appeal, the verdict was upheld. The court held that the first element of malicious prosecution was satisfied not only because the police and the Crown relied wholly on the employer, which actively and deliberately misled them, but because the police were unable, despite diligent investigation, to uncover exculpatory evidence controlled by the appellant because only a trained operator of the video monitor could properly review the tapes.

[23] While the facts recited do not disclose that this was the investigating officer’s evidence, the Court concluded that “[b]ut for the withholding of this essential information, McNeil would not have been charged”.

[24] In Pate v. Galway-Cavendish (Township), the complainant, Beaven, was a former police officer who had retained the rank of staff sergeant before his retirement, after which he became the township’s Chief Building Official. Beaven accused Pate, a building inspector, of failing to remit permit fees to the township that had been paid to him. Before going to the police, Beaven conducted his own investigation. At the criminal trial, exculpatory evidence emerged that had never been provided to the police, but which was known to Beaven.

[25] The evidence from the officer who laid the charges was that, had he known in advance of the information that emerged at the criminal trial, he would not have laid charges. However, he also confirmed that the decision to lay the charges was his, and that he had made some inquiries into the allegations. The officer also said that the statements provided by Beaven, in and of themselves, created reasonable and probable grounds for laying charges against Pate. The officer had received some internal pressure to lay the charges because the township was complaining about his delay. Another officer testified that the township was not involved in the decision to lay the charges, nor the wording of the charges. The trial judge found that Pate had not satisfied the first part of the test for malicious prosecution and dismissed the claim.

[26] On appeal, the Court found that the trial judge had made inconsistent findings with respect to the element of initiation and had misstated the test for malice. A new trial was ordered.

[27] Referencing para. 52 of McNeil, the Court noted that it had held that “a defendant can be found to have initiated a prosecution where the defendant knowingly withheld exculpatory information from the police that the police could not have been expected to find and did not find and where the plaintiff would not have been charged but for the withholding.”

[28] The Court gave the following guidance to the trial judge for the new trial at paras. 51 and 53:

However, if it is determined at a new trial that Mr. Beaven knowingly withheld exculpatory information from the police, to decide whether the element of initiation is satisfied, in my view, it will also be necessary to assess whether the conduct of Mr. Beaven undermined the independence of the police investigation and the independence of the decision-making process concerning whether to lay charges and prosecute.

…[I]f it is determined at a new trial that Mr. Beaven knowingly withheld exculpatory information, it will be necessary also for the trial judge to assess whether Mr. Beaven prepared his statements in a manner that misled the officers into not conducting their own search of the relevant records – and, if he did, whether that is sufficient in all the circumstances to satisfy the element of initiation….

[29] In D’Addario (ONSC), the plaintiff commenced a malicious prosecution action after criminal charges against him for sexual assault were stayed. The trial judge granted a motion for a non-suit. On appeal, the Court held that the decision to grant the motion was correct, as proof that the defendants’ statements to the police were false was insufficient to establish that they, rather than the police, initiated the prosecution. The trial judge had explained that there would have to be “evidence that the defendants withheld exculpatory evidence; that they pressured the police in laying the charges or somehow compromised the independence of the prosecution.” The investigating officer had testified that she formed the view that there were reasonable grounds to charge D’Addario after conducting her own investigation, and the decision to charge was hers alone. The Court agreed that there was no evidence that the defendants interfered with or undermined the independence of her investigation, or evidence from which it could reasonably be inferred that she did not exercise her discretion independently.

[30] In Curley, the plaintiff’s action for malicious prosecution was successful at trial. Curley was a paralegal who had contractual arrangements with a lawyer, Taafe. As a result of retaining files belonging to Taafe, Curley was criminally charged. The charges were ultimately withdrawn by the Crown. The trial judge found that Taafe made misleading statements to police and withheld exculpatory evidence, specifically a video surveillance tape. The misleading statements related to when Taafe had ended the contractual relationship, stating that she had ended it earlier than was found to be true. Importantly, no evidence was elicited from the officers who investigated the complaint or who laid the charges as to the effect of Taffe’s complaints on their investigation.

[31] The trial judge’s factual finding that the only reason that the proceedings were initiated by the police was because of the misleading information by Taafe was found to be in error. There was evidence that the police interviewed both parties and used their own discretion when laying the charges, and there was an absence of any evidence from the police as to the effect of Taafe’s complaint on their investigation. The Court reasoned that the conclusion to be drawn from the evidentiary record was that the police exercised independent discretion and judgment over the investigation.

[32] At para. 26, the Court stated:

In the case at bar there was no police testimony to speak to the effect of the appellant’s complaints on their investigation; there was no police testimony to proffer a view on whether they would have still charged the respondent had the appellant disclosed the surveillance camera video footage. Furthermore, while the prosecution would not have been initiated but for the appellant’s complaint to the police, “the evidence shows that the decision to initiate the prosecution was nonetheless within the discretion of, and exercised, by the police in this case”: Chaudry v. Khan, 2015 ONSC 1847, at para. 18. As such, the element of initiation has not been satisfied and the respondent’s malicious prosecution claim must fail….

[33] Finally, in the Court’s most recent decision on this topic, Konstan, the Court distinguished the situation from McNeil, in that the complainant in Konstan did not have the ability to frustrate an effective police investigation by concealing exculpatory evidence. He had, however, provided misrepresentations, exaggerations, and omissions, but the evidence did not show that these compromised the police’s independent discretion to lay charges.

[34] At paragraph 47, the Court reviewed some of the police officer’s testimony impacting on its decision:

Jack likewise had no role in the decision to charge Maria. When asked who made the decision to arrest and charge her on July 21, 2010, Fritz stated: “That would have been me”. In response to questions about whether his decision would have been different had he known about evidence that later emerged at trial, Fritz either said it would not have necessarily affected his decision to arrest Maria or, more frequently, that he was not sure if it would have affected his decision. He testified that any single omission or misleading statement “would have been, obviously, taken into consideration but [he didn’t] know if any one or a combination of all these things may have made [him], obviously, impacted [his] decision to lay charges.”

[35] Additionally, to be treated as the prosecutor in exceptional circumstances, the complainant must have desired and intended the plaintiff to be prosecuted. In McNeil, at para. 48, the Court cited the following passage from the House of Lords decision of Martin v. Watson as a “governing principle … [that] has been followed and applied in Ontario law in the assessment of the initiation element”:

Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and 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 intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.

[36] As previously discussed, decisions from the Court of Appeal following McNeil have modified the “virtually impossible” standard and have clarified that it is necessary to show that the complainant’s behaviour compromised the police investigation and/or the independence of the police’s decision to lay charges.

Summary Judgment

[37] The applicable principles that guide a summary judgment motion derive from Hryniak v. Mauldin.

[38] With respect to when summary judgment may be granted, Karakatsanis J. stated, at para. 49:

There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[39] At para. 50, the Supreme Court of Canada defined the overarching issue to be “whether summary judgment will provide a fair and just adjudication.” Karakatsanis J. went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”

[40] The evidence adduced on a summary judgment motion need not be equivalent to that at trial. A documentary record may be enough if it allows the motion judge to have confidence that she can fairly resolve the issues.

[41] The court must take a hard look at the evidence on a motion for summary judgment to determine whether there is a genuine issue requiring a trial and may freely canvas the facts and law in doing so. No party is entitled to rely on the prospect of additional evidence that may be tendered at trial; all parties have an obligation to put their best foot forward on a summary judgment motion. As stated in Dawson v. Rexcraft Storage and Warehouse Inc., at para. 17: “[t]he motions judge is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.”

[42] The requirement to put one’s best foot forward means that although the onus is on the moving party to establish the absence of a genuine issue requiring a trial, there is an evidentiary burden on the responding party, who may not rest on the allegations or denials in the party’s pleadings, but must present specific facts showing that there is a genuine issue for trial. These principles were affirmed once again in Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), at para. 7.

[43] Mr. Ayotte also referred the court to the recent decision of Moffitt v. TD Canada Trust in support of his submission that this case is not appropriate for summary judgment. At para. 50, the Court of Appeal confirmed that a motion judge must ask the same question regardless of whether the action is to be tried by a jury or by judge alone: “is there something about the nature of the findings of fact and application of the law to the facts needed to decide the ‘live issues’ in the action that would lead the judge to lack confidence that the summary judgment process would enable a fair and just determination of the action?”

[44] In the following paragraph, the Court provided the following general guidance:

At some point, the number of findings of material fact required to determine a case’s “live issues”, the number of witnesses needed to provide the evidence upon which those findings can be made, the centrality of issues of credibility and reliability to making those findings, and the presence or absence of a documentary record against which to measure affidavit or oral evidence may move the needle past the point where the summary judgement process could reach a fair and just determination on the merits. Such a conclusion would result from the motion judge’s assessment about the fairness of the summary judgement process applied to the particular record presented….

The Evidence

[45] The record on this motion consists of:

1. The affidavits of Doe and Bullock and evidence given on cross-examination of those affidavits;
2. The affidavit of Mark MacDonell, the investigating police officer who laid the charge and cross-examination on that affidavit;
3. The affidavit of paralegal Alura Moores attaching, among other documents, university security notes and documents provided pursuant to a Wagg order;
4. The affidavit of Doe’s family physician, Dr. Alison Malo;
5. The affidavit of a counsellor, Robyn Ocean, who has provided treatment to Doe; and
6. Two affidavits from Klehr D’souza, a proposed expert retained by Doe.

The Alleged Sexual Assault

[46] In September 2017, Doe was a student at X University. She was living in residence on campus and working as a don, supervising and assisting other students who lived in the residence.

[47] Bullock was also a student at the University. During the 2017 academic year, Bullock was Program Director of the University Emergency First Response Team (“UEFRT” or “Team”). UEFRT provided on-call medical assistance on campus.

[48] Doe and Bullock agree that they met for the first time on September 3, 2017 during an on-campus lunch group organized by the University. They have differing versions of what occurred during their initial meeting. Doe says that Bullock introduced himself to her and another don during lunch, and then approached them outside of their residence building to chat briefly. He insisted that they take his Snapchat information should they ever require his assistance or the assistance of UEFRT in responding to an emergency. Doe accepted his contact information.

[49] Bullock’s evidence is that during that day, he and Doe engaged in friendly conversation on several occasions, including eating lunch together in the cafeteria. They then walked around the residence courtyard, and Doe invited him into her dorm room. While he was in her room, Doe added him to Snapchat messenger and sent her phone number to him. Bullock asked about her intentions and told her that he was not interested in a serious relationship. Doe responded that she too was interested in a casual relationship and that she did not want anyone to know as she was “sort of seeing someone”.

[50] His evidence is that Doe insisted that they continue to message only on Snapchat Messenger and asked if he would be available during the week. He told her that he could probably find time to meet with her once he was no longer on call for the Team.

[51] Doe denies ever inviting Bullock to her dorm room or suggesting to him that she was looking for any kind of personal relationship with him, especially not a sexual relationship. At the time, Doe was engaged to a female student who also attended the University, and Doe wore an engagement ring.

[52] The parties also provide widely divergent evidence about their next interaction.

[53] Doe says that she had briefly returned to her dorm room the next day without locking the door behind her. Without knocking, Bullock suddenly entered her dorm room and locked the door behind him. She then describes a rape lasting 10-15 minutes, involving violent and forced vaginal and oral penetration.

[54] Before leaving, Bullock told Doe that she would be hearing from him, and that she had “better respond” when he messaged her. He told her that she must only contact him on Snapchat, and that if Doe did not, he would come back.

[55] Bullock’s version is that Doe invited him to her dorm room while he was attending a campus event during the evening of September 4, 2017. He went to Doe’s dorm room and knocked on the door, which was slightly ajar. Doe opened the door and invited him in, shutting the door behind them. He told her that he did not have very much time because his Team partners were covering for him while he was gone. They talked for a brief period until foreplay began. He told Doe that he would not have sex without a condom, which neither of them had, and asked if she would engage in oral sex with him. She agreed and then performed oral sex on him. He left and returned to the event that he had been at earlier.

[56] It was this interaction that formed the basis of the criminal charges against Bullock, which also included break and enter with intent to commit an indictable offence.

Involvement of Others

[57] After Bullock left the room, Doe’s evidence is that she was in shock and wandered out of her room in a daze, where she ran into her friend and fellow don, J.S. J.S asked another don, A.B., for a ride to the local hospital where medical personnel administered a sexual assault evidence kit (“SAEK”) and provided medication to reduce the possibility of pregnancy and sexually transmitted diseases.

[58] J.S. provided a statement to the investigating officer in February 2019 in which she relayed that during the University orientation week she received a call from Doe, who sounded upset. J.S. went to the residence and found Doe in the hallway, crying, shaking, in shock, and not particularly verbal. J.S. called A.B., and the two took her to the local hospital.

[59] A.B. also provided a statement to the police. Her information is that she observed that Doe had been crying when she arrived at Doe’s dorm room, she was sitting on the floor, shaking and pale, and was quiet and “jumpy” during their encounter. A.B. confirmed in her statement to the police, which Doe reiterated in her own evidence, that on the way to the hospital A.B. insisted that she had responsibility as a don to alert security to what had happened. A.B. called University security. The security notes confirm that campus security was first alerted to the incident by someone other than Doe. A.B. told the detective that Doe “wasn’t happy about me doing that”. A.B. also told Detective MacDonell that for months after, Doe would call her because she did not feel safe in her room, and A.B. would go to get her.

[60] When she returned to campus that night, Doe was taken to her fiancé’s dorm room. That night her fiancé called Doe’s parents even though Doe had explicitly asked her not to. Her parents came to the campus the next morning.

[61] In the days immediately following, Doe accessed support and counselling services, and over the following months attended regular counselling sessions with the sexual violence coordinator at the University, Robyn Ocean. She required extensive academic accommodations and was unable to attend many of her classes, and eventually required a temporary leave of absence from her duties as a don.

Report to Campus Security

[62] The following morning, Doe and her parents met with the head of security, Jason Salo, and another individual who was part of the University’s management. The notes of the meeting record that Doe’s parents had requested a meeting with housing, and that Doe indicated that she wanted to be alone but had agreed to accompany her parents. Doe’s parents expressed their desire for Doe to report to the police, but Doe stated that she did not want to and just wanted some time alone.

[63] Doe did not reveal the identity of the attacker, but only stated that he had followed her into her room. She gave two reasons for this in her affidavit: she feared retaliation, and she did not want to endure the publicity and trauma that would result from doing so, including having to relive the events during any criminal trial.

[64] Salo met Doe again on September 8, 2017, at which time she provided the information that her attacker was unknown to her. Doe’s evidence is that she feared that Bullock would retaliate if she disclosed his identity.

[65] Doe is ultimately uncertain about whether Bullock used a condom on September 4, 2017. Salo’s notes indicate that he recovered a used condom from Doe’s room after she reported to him that she had discovered it on September 30, 2017, located on the floor adjacent to the waste disposal basket under a counter. It was later taken to the hospital and placed in Doe’s SAEK. Bullock’s DNA was later identified on both an oral swab taken from Doe’s mouth and on the condom.

[66] In the fall of 2017, Doe alerted Salo to an individual on campus whom she believed matched her description of her assailant, and Salo identified another potential suspect on video footage.

Messaging on Snapchat

[67] Bullock says that throughout September, he and Doe continued to message each other on Snapchat. She asked him over Snapchat when they could next meet up and he responded that he could possibly do so on a Thursday after a Team meeting. He recalls that they met for a second time on September 28, 2017 in her dorm room. This time the interaction was much longer. They engaged in consensual sexual intercourse with a condom, and then spent much of the night discussing their lives.

[68] After this encounter, it is his evidence that Doe continued to engage in flirtatious conversation with him. On October 16, 2017, Bullock attended a distress call with his Team where Doe was the patient, where he learned some private medical information about her. After this event, Doe continued to message him. After discovering that Doe’s girlfriend was her fiancé, he decided to stop messaging Doe in November 2017.

[69] Doe’s evidence is that Bullock continued to message her over Snapchat. He told her that he knew everyone at school and could ruin her reputation by telling everyone that she had cheated on her fiancé. He also told her that he had access to her personal information, as well as access to every room on campus because of his position with UEFRT. He told her that he could come back at any time. When she did not respond, or tried to respond in an unengaged way, he told her that she needed to “flirt” with him more or he would come back to her room to pay her a visit.

[70] Her affidavit states that she was aware that Bullock had keys to all the rooms on campus because of his position, and was deeply scared that that he would return if she did not respond to his threat. She would occasionally respond to Bullock’s messages out of a feeling of fear and sense of complete powerlessness. She wanted to placate him in the hopes he would not fulfill his threats. She did not tell anyone his identity in the hopes that he would eventually leave her alone.

[71] The allegation that Bullock, as a member of UEFRT, had access to every building on campus, students’ rooms, and the University’s security records is something that he completely denies.

[72] Doe says that Bullock did return to her room, on or around September 24, 2017. Doe’s evidence is that he again initiated an unwanted sexual interaction by taking off her shirt, exposing his penis and masturbating. She begged him to leave and not return, which he eventually did. He continued to send messages to her.

[73] Doe decided that she could no longer continue attempting to placate him and blocked him on all messaging and social media services sometime in November 2017. She wanted to block contact as a step toward removing him from her life. It is her evidence that because of how Snapchat works, once she blocked Bullock, all their messages were automatically deleted unless specifically saved by a party to the conversation. She did not save any of the messages before blocking Bullock.

[74] Doe has provided an expert report authored by Klehr D’souza, a Registered Psychotherapist and the former Sexual Violence Prevention and Dispute Resolution Officer at the University of Ottawa. D’souza’s evidence is that Doe’s interactions with Bullock following September 3 are consistent behaviors that align with and are known to be exhibited by others who have experienced sexual violence within the university context. Her ultimate opinion at the conclusion of her report is:

Given the literature and my experience of responding to, managing, and processing complaints of sexual violence within the university context, neither [Doe’s] inability to share all the details of the incidents of sexual violence immediately after the incident, nor her interactions with Mr. Bullock following the September 3rd incident, suggest that she gave consent during the sexual interactions that occurred between the two parties. Rather, the post-incident behaviours suggest that [Doe] was responding to a traumatic incident that involved Mr. Bullock. Furthermore, the actions undertaken by [Doe] indicate that she was actively trying to protect herself and others from a recurrence.

Report to the Police

[75] Doe continued to meet with Jason Salo and maintained that she did not want to make an official report. However, after a number of conversations with him, Doe became concerned about the possibility of other victims and the importance of protecting future victims. She eventually decided to meet with the police three months after the alleged assault.

[76] During her first meeting with the police, held on campus on December 6, 2017, she relayed the first incident but did not name Bullock. The reason she gives is that she continued to worry that Bullock would find out that she had spoken to the police and would come back to her room. It is her evidence that because the interview was held in the security building, she felt anxious that Bullock might see her talking with the police. The officer noted that Doe was visibly nervous and seemed reluctant to provide specifics.

[77] She next met with two officers, one of whom was Detective MacDonell, at the University security office on December 12, 2017. She stated that her attacker used a condom during intercourse but then took the condom off when he put his penis in her mouth. He left the condom and she found it a week later. She gave a description of the attacker. She stated that she had not seen the perpetrator before the attack, nor since.

[78] Detective MacDonell obtained Doe’s consent for her medical records and the results from the SAEK. In a supplementary occurrence report authored by Detective MacDonell dated December 20, 2017, he recorded that he had attended the hospital where Doe was treated and obtained the SAEK along with the condom that Doe “turned over approximately one month after the incident”.

[79] The results from the Centre of Forensic Sciences revealed that the oral swab collected from Doe on the night of the sexual assault contained a mixture of her DNA and male DNA from semen.

[80] Salo provided the detective with the names of the two individuals of interest, even though Doe told Detective MacDonell that she did not believe the male on the video was her attacker. Both of those males were investigated by Detective MacDonell as possible suspects and were cleared of any wrongdoing. One of them provided a DNA sample, which excluded him from being the attacker.

[81] On May 23, 2018, Doe advised Detective MacDonell that she had observed a photograph posted by another student on Snapchat and noticed a male in the photograph whom she felt certain was the male involved in the sexual assault. Salo identified the individual in the photograph as Bullock and gave the detective Bullock’s name.

[82] Doe’s evidence is that by that time her graduation was approaching, and she finally felt comfortable revealing Bullock’s identity because she knew she would no longer be living and attending school on the same campus as him.

[83] The detective first tried to interview Bullock and obtain his consent to take a DNA sample, both of which were refused. He then sought and obtained a DNA warrant to obtain a blood sample from Bullock. A subsequent report from the Centre of Forensic Sciences indicated that the sample taken from Bullock could not be excluded as a contributor to the DNA mixture from the oral swab taken of Doe and the semen inside the condom.

[84] During this period Doe had several phone conversations with Detective MacDonell but had no involvement with investigation or the criminal process. She recalled being told by him that it was the Crown’s decision to press charges.

[85] On January 10, 2019, Detective MacDonell called Doe to advise her of the DNA results. During that conversation she told him that she had met Bullock at an event before he assaulted her, he had asked for her phone number to give her resource material to post on bulletin boards, and then texted her about wanting to give her that material a few hours before he came to her room.

[86] On January 24, 2019, Detective MacDonell took another formal statement from Doe, in which she told him that she had met Bullock earlier that morning for the first time with her other colleagues and dons, and they had brief interactions that day. When the assailant entered her room, she did not realize that it was Bullock, and he turned the light off. When she saw the picture, she realized that a male in the picture was her attacker. She also told Detective MacDonell that they had never crossed paths since, and that Bullock had not tried to reach out to her.

[87] Bullock was arrested by Detective MacDonell on January 31, 2019. Subsequently, in the investigative report authored by Detective MacDonell on February 1, 2019, the detective indicated that at the time of the report “there are reasonable and probable grounds for the arrest of Adam Bullock for sexual assault”.

[88] At paragraph 37 of her affidavit, Doe states:

I was not involved in the decision to lay charges against [Bullock]. It was not my idea to press charges nor did I ask for charges to be laid, I was not asked for my permission to press charges, and I was not involved in the process. I was informed only a few days before it happened that they intended to arrest [Bullock] and that they would mail me documentation. I then received a letter and a copy of [Bullock’s] bail conditions….

[89] The only people that Doe revealed Bullock’s identity to were the police, Salo, Ocean, and her family doctor, which is uncontested.

Disclosure of Snapchat Messages

[90] Bullock’s criminal defence counsel disclosed some of the Snapchat messages that had been exchanged between Doe and Bullock to the Crown Attorney.

[91] The messages demonstrate that Doe had contact with Bullock during the month of September 2017.

[92] Bullock’s evidence is that he was able to access the Snapchat messages because Doe had initially saved them. He points out that the screenshots of the messages that are attached to his affidavit show that they are saved by “everyone”.

[93] Doe’s evidence is that messages provided through Bullock were incomplete, including omitting those where he threatened to return to her room.

[94] Doe’s evidence is that the only reason that she had not provided the messages to the police herself was that when she blocked Bullock on Snapchat, all of the messages were automatically deleted.

Detective MacDonell’s Evidence

[95] Detective MacDonell’s notebook from the relevant period in 2019 has gone missing, having been misplaced by the police service in question. Accordingly, the evidence provided in his affidavit sworn August 8, 2024 is his best recollection of events that had occurred over five years earlier.

[96] His evidence is that in June 2019, he met with the assigned Crown to review the Snapchat messages. They agreed that if Doe confirmed that the messages had been sent between them, the charges would have to be withdrawn as the Crown would no longer have a reasonable prospect of conviction.

[97] Detective MacDonell then met with Doe on June 26, 2019 to review the messages. During the meeting he asked Doe once again if she knew Bullock before the alleged assault. She informed him once again that she did not, and that she was only able to identify him from a photo that she first saw in April 2018. Doe confirmed that she did have the conversations reflected in the Snapchat messages on the dates in question.

[98] When cross-examined, Detective MacDonell recalled Doe telling him that the Snapchat messages were not complete, and he believes that he acknowledged to her that it looked like some communications were missing.

[99] Detective MacDonell’s affidavit continues:

I explained to [Doe] that the fact that she had lied to me about Mr. Bullock’s identity and the fact that she obviously had known him since September 2017 was significant and relevant evidence that she should have disclosed. I further explained to her that the Crown Attorney had decided, given [Doe’s] acknowledgement of the veracity of the Snapchat messages, that all charges against Mr. Bullock would be withdrawn. She indicated at this point in our meeting that she no longer wanted to testify.

This indication that [Doe] did not want to testify in the criminal proceeding is the first time that she had made this statement. Prior to charges being laid, [Doe] and I did discuss her role in the criminal proceeding and the fact that she would have to testify against Mr. Bullock. She did not hesitate and indicated she was prepared to testify. After we received the results of Mr. Bullock’s DNA I once again spoke to [Doe], and she indicated again that she was prepared to testify.

The decision to withdraw the criminal charges was made by the Crown Attorney based on the Snapchat messages and the fact that [Doe] had lied to the police about significantly relevant evidence within her knowledge and control. There is no way that I, as investigating officer, could have discovered this information through the investigation process.

[100] The evidence establishes that the officer’s recollection is not reliable as to when he knew that the charges would be withdrawn. On July 8, 2019, he sent Doe an email stating that he was having a meeting with Crown counsel that afternoon to discuss the matter and would then let Doe know “what their stance is on this”.

[101] On the same date, Doe sent an email to him before that meeting was scheduled to occur. She asked him whether he still wanted her old phone if she could locate it, as she was positive that there were messages missing from the conversation. She went on to write:

I’m not sure if this is possible, but I do not want to testify. I am NOT recanting my accusation because it was truthful and he did enter my room without invitation and did sexually assault me. I will not waiver on that, as that is the truth and I have been dealing with that trauma for a few years now.

If going up to testify means having to defend myself, I’m not doing it. If it’s anything like the conversation we had, I’m sure that it will be 100 times more difficult and I’m not willing to put myself through that to not get an outcome suitable to the crime committed.

I should have come forward sooner with the fear I had. The fear of retaliation, of him having access to buildings and master keys, of him being able to see where I was on campus at all times. I didn’t know how to handle that fear and continue to struggle with that decision. I apologize for that aspect, as I’m sure it has made your job more difficult. I just want to stress the fact that what happened to me was an assault and I did not ask for it. I felt so upset having to defend myself to questions like did I regret what happened or was I embarrassed, and again, I understand you needed all information, I just want to make sure that you know that I was truthful about what happened to me.

I genuinely do not want to go on the stand or testify. This decision may make me look bad but I can’t keep going through this process as it is draining me in more ways than one.

[102] When questioned about this series of events, the officer could not explain why he would tell Doe on July 8 that he would tell her what the Crown’s stance was if he had already been informed that the Crown was withdrawing the charge. He agreed that it was hard to remember and “put it all together”, that his initial “meeting” with Crown counsel was by phone rather than in person, and that he could not remember the date.

[103] Two days later, Doe emailed the detective again and asked: “Just wondering if you are still letting me know about Monday?”. The evidence does not show any follow-up from the officer.

[104] Doe’s evidence is that she wanted to put this incident behind her and had repeatedly told the detective that she was not comfortable testifying. And contrary to the detective’s evidence, Doe says that she was informed by Detective MacDonell that it was her decision not to testify that led to the Crown’s decision not to proceed to trial.

[105] In addition to the evidence cited above from his affidavit, the officer gave additional evidence during his cross-examination.

[106] He confirmed that it was a conversation with Salo that led to the investigation of the two other males of interest in the investigation, and that it was Salo who gave him the individuals’ names. He agreed that he took several investigative steps with respect to both of those individuals because it was his job to independently investigate all leads.

[107] The detective also confirmed that after Doe called him on May 23, 2018 to tell him that she had seen a photo of someone that she was certain was the person who had sexually assaulted her, he emailed Salo and obtained Bullock’s name. He did not charge Bullock right away, but instead attempted to interview him.

[108] He also testified that after forming reasonable and probable grounds, he continued his investigation, obtaining a follow-up clarification statement from Doe, interviewing J.S. and A.B. about the night that they accompanied Doe to the hospital, and obtaining all the records from the University’s security investigation.

[109] Detective MacDonell then provided the following evidence:

Q: It was your decision to charge him?
A: It was.
Q: This wasn’t a case where there was a mandatory charging policy?
A: No.
Q: You had conducted an independent investigation?
A: Yes
Q: And you exercised your own discretion based on the evidence you had assembled at that time?
A: Yes. I -- when we receive a complaint and-- of this nature, when we form reasonable grounds on a-- on an allegation this serious, we -- we laid the charge.
Q: It is your discretion to lay the charge?
A: Not necessarily. Like, if-- if the victim doesn’t want to proceed with a sexual assault, we would not. However [Doe] did, and we laid the charge.
Q: Based on the evidence that you had assembled in your investigation?
A: Correct.

[110] The officer’s affidavit also states that he and the Crown attorney subsequently discussed whether a charge of public mischief should be laid against Doe, and that it was his belief that such a charge would have been appropriate. His affidavit also purports to provide information about Crown counsel’s position on the matter, which is hearsay and therefore disregarded by this court.

[111] At no point in his affidavit does the officer say that, had he known about the Snapchat messages at the time that he charged Bullock, he would not have laid those charges.

Analysis

Initiating the Prosecution

[112] I find on the evidence that Doe misled the officer about two significant aspects of the investigation. She did not tell him that she was aware of Bullock’s identity all along, and she did not tell him that they had continued to communicate through Snapchat after the alleged assault.

[113] It is only the existence of the Snapchat messages and Doe’s failure to tell the officer about their ongoing contact that should be taken into account in this case. Doe’s withholding of Bullock’s identity is not exculpatory evidence; to the contrary, it would have been incriminating.

[114] I agree with Ms. Matas that there are no credibility issues that stand in the way of determining the first part of the test for malicious prosecution. Mr. Ayotte argued that the lies told by Doe and the inconsistencies in her evidence, such as her evidence around the condom, are important to this first issue. I disagree; these things may be important to an analysis of whether Doe subjectively held an honest belief in Bullock’s guilt, which is important to the third element of the test, but are not important to the first element. The requirements of these two elements should not be conflated.

[115] This is because, even where it is proven that a complainant has lied, given false information, or withheld exculpatory evidence, the focus of the inquiry is on whether she compromised the police investigation and/or the independence of the police to lay charges. A finding that a complainant has engaged in such behavior is insufficient to establish that the complainant initiated the prosecution.

[116] This conclusion is the same as that reached by Chalmers J. in Ng v. C.G., a case in which the plaintiff, a piano teacher, sued the complainant for malicious prosecution after she accused him of sexually assaulting her during her lessons. The criminal charges were stayed on the eve of trial at the request of the complainant. The plaintiff led evidence that he believed showed that the complainant was not truthful, such as inconsistencies in her statement to the police. At paras. 72-75, Chalmers J. rejected the plaintiff’s argument that because the complainant’s credibility was in issue, only a trial would permit the proper evaluation of her evidence. On the issue of whether the complainant had initiated the prosecution, he was satisfied that it could be decided on the written record.

[117] Ms. Matas argued that Detective MacDonell’s evidence that it was his decision to charge Bullock, there was no mandatory charging policy, that he conducted an independent investigation, and had exercised his own discretion based on the evidence that he had assembled at that time, is sufficient to end the matter. This evidence, she argued, makes it impossible for Bullock to meet the first part of the test for malicious prosecution. Even if it was his understanding or belief at the time that Doe was willing to participate in the prosecution, his evidence is clear that that was not the singular reason for laying the charges.

[118] Prior to charging Bullock, the evidence establishes that the detective carried out his own independent investigation. His own interview of Doe was only one part of the evidence that he amassed. Before Bullock was charged, Detective MacDonell had the notes from the first officer’s interview with Doe from December 6, 2017, had obtained the SAEK and submitted the oral swab for forensic analysis, had obtained results that it had male semen on it, followed up with Salo to obtain names for the two males of interest, took a number of investigative steps in relation to those leads, obtained the name of Bullock from Salo, and took a number of investigative steps in relation to Bullock, including obtaining DNA results. He even knew, as a result of his conversation with Doe on January 10, 2018, that she had met Bullock prior to the alleged assault, and knew that they had had contact by text message on that same date. He confirmed on his cross-examination that it was after that point in the chronology that he determined that there were reasonable and probable grounds to arrest Bullock for sexual assault, which he conveyed to Bullock on January 16, 2019.

[119] Other than giving two interviews to the police and letting Detective MacDonell know about seeing her alleged attacker in a photograph, there is no evidence that Doe took any part in the investigation. There is no evidence that she propelled it in any particular direction until she drew the detective’s attention to Bullock, which was over eight months after the alleged attack. It took another eight months for the police to charge Bullock.

[120] The evidence does establish, I find, that Doe was never keen to either name Bullock or to participate in a public proceeding. When she finally agreed to involve the police, it was at Salo’s urging. Still, she continued to actively hide Bullock’s identity for several more months. The only evidence of motivation for speaking with the police is provided by Doe; she wanted to protect other future victims.

[121] Doe’s decision to speak to the police and the fact that the police went forward with the investigation for over a year leads me to infer that she was initially willing to testify, or at least had not conveyed a reluctance with enough force to halt the process. Nothing in the evidence, however, allows for the inference that she was an eager participant.

[122] I find that the record does establish that she communicated her desire not to testify after she had had a discussion with the detective about the Snapchat messages, but before she had been informed that the charges would be withdrawn. As of July 10, 2019, I find that this was still an unknown, both to the detective and to Doe. The detective admits that his recollection for the sequence of events is not intact, and the email of that date establishes the uncertainty surrounding the status of the charges before he was scheduled to meet with Crown counsel later that afternoon. Doe’s email expressing that she wished to retract her willingness to testify preceded that meeting. Her follow-up email establishes that as of July 10, she still did not know that the charges were withdrawn.

[123] The officer’s evidence that he believed that a charge of public mischief against Doe would have been warranted has caused me considerable deliberation.

[124] A charge of public mischief under s. 140 of the Criminal Code is made out when an individual, with intent to mislead, causes a peace officer to enter on or continue an investigation by

(a) making a false statement that accuses some other person of having committed an offence;
(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
(c) reporting that an offence has been committed when it has not been committed; or
(d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.

[125] The detective’s evidence provides no further detail as to how he believes Doe’s conduct fits into any of the potential ways in which this offence can be committed.

[126] The detective’s comment is a damning evaluation of Doe’s conduct and, I infer, is based on his own belief that a person sexually assaulted would never continue to have contact with the assailant nor hide from the police the fact that she did. This reasoning is the kind of stereotype or myth that the law seeks to reject entirely. Without further evidence from the officer, his assumptions should not find their way into an evaluation of the first element of the test.

[127] By further evidence, I refer to what is missing from the evidence: there is no direct evidence from the detective that, had he known about the Snapchat messages, he would not have laid the charges; and there is no evidence from him that the withholding of this evidence, which he could not have uncovered on his own, compromised the investigation or interfered with his independence.

[128] This is not a case, like McNeil, where this court can conclude that but for the withholding of this essential information (i.e., the Snapchat messages), Bullock would not have been charged. There was enough circumstantial evidence to form reasonable and probable grounds to lay the charge before the discovery of the messages, as the officer confirmed, and he continued to collect relevant evidence from J.S. and A.B. after the arrest.

[129] This is a case, like Curley, where evidence of the key question of whether the detective would still have charged Bullock had he known of the Snapchat messages remains unknown. The Crown counsel’s decision to withdraw the charges because she believed there would be no prospect of conviction is not the equivalent of having conclusive evidence from the officer who laid the charge.

[130] Accordingly, I find that this first element of the test for malicious prosecution cannot be met by the plaintiff. In the result, summary judgement dismissing his claim must be granted.

[131] In the event that I am found to have reached the above conclusion in error, I will briefly address the other elements of the test.

Prosecution Terminated in the Plaintiff’s Favour

[132] It is conceded that the prosecution terminated in Bullock’s favour.

Absence of Reasonable and Probable Cause for Prosecution

[133] The third element of the malicious prosecution test requires that the plaintiff demonstrate on a balance of probabilities that the defendant did not have reasonable and probable grounds at the time the prosecution was commenced.

[134] I agree with Mr. Ayotte’s position that the issue of whether Doe had a subjective, honestly-held belief that she had been sexually assaulted by Bullock is a triable issue that will involve significant credibility evaluation of both Bullock and Doe, and which cannot be determined on the record now before the court.

[135] The other aspect of this assessment will be the expert evidence sought to be led by Doe through D’souza. As Mr. Ayotte submitted, the scope of her evidence would have been challenged by Bullock at trial. D’souza’s evidence attempts to give context and understanding to Doe’s post-assault conduct and opines that it is consistent with someone who has been sexually assaulted. The admissibility of all, or none, of her opinion would have been an issue for trial, and the outcome of any voir dire could significantly impact the trial outcome.

Malice

[136] In Pate, the Court held that a lack of reasonable and probable grounds to initiate a prosecution, considered on an objective standard, may support a finding of malice. Accordingly, Mr. Ayotte submitted evidence of malice is not required for this motion, since, from Bullock’s perspective, all elements of the test for prosecution require a trial.

[137] Ms. Matas’ response to this submission is that Pate was a trial decision, whereas on this summary judgment motion Bullock is required to lead evidence establishing malice.

[138] It is the case that, other than the evidence led by the plaintiff with respect to Doe’s alleged lack of reasonable and probable grounds, Bullock has provided no evidence of Doe being motivated by malice.

[139] Bullock has met the evidentiary burden of showing a triable issue on the third part of the test. Given that finding by this court, it would be premature to then conclude that there is not a triable issue with respect to whether Doe was motivated by malice or an improper purpose, given the direction in Pate.

Ruling

[140] Doe’s motion dismissing Bullock’s claim in its entirety is granted.

Costs

[141] If the parties are unable to agree on costs, submissions may be made in writing, limited to no more than five double-spaced pages, not including a Bill of Costs. All authorities relied on are to be hyperlinked in the document or uploaded to Case Center with a tabbed (i.e., hyperlinked) index.

[142] The Defendant’s submissions are due by February 21, 2025, and the Plaintiff’s by February 28, 2025. Any reply, if necessary, by March 5, 2024. Counsel may extend these deadlines by mutual agreement and on notice to the court.

[143] The submissions are to be filed with the court, with a copy emailed to my judicial assistant at BarrieSCJJudAssistants@ontario.ca, in addition to being uploaded to Case Center.

Healey J.
Released: February 11, 2025