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Government appeal of Judge Baynton's findings of malice

Affidavit of Donald Murray Brown

I DONALD MURRAY BROWN of Regina, Saskatchewan, lawyer, MAKE OATH AND SAY:

1. THAT I am a lawyer entitled to practice law in Saskatchewan and carrying out the practice in the employ of the Government of Saskatchewan with the title Executive Director of Public Prosecutions.

2. THAT I am aware of the judgment of Mr. Justice Baynton which is under appeal in this matter and of the general nature of the facts underlying that judgment.

3. THAT my discussions with prosecutors in the Public Prosecutions Division of Saskatchewan Justice have convinced me that many of them consider that judgment to constitute a change in the law or at least to create considerable uncertainty in the law respecting what they can do as prosecutors without significantly increasing the risk of incurring liability for malicious prosecution.

4. THAT in particular, the aforesaid prosecutors and myself are concerned that this judgment effectively:

i) lowers the standard of liability for malicious prosecution from proof of actual or constructive malice to one of proof of simple negligence;

ii) abrogates significant changes in the law that made it easier fpr children to provide evidence of criminal acts by making relying on these changes to the law evidence of malicious intent; and

iii) makes the employment of heretofore legitimate tactical activities, such as the objection to inadmissible evidence or to the improper questioning of witnesses, an evidentiary basis frpm which to infer malicious intent.

5. THAT I am concerned those prosecutors may no longer be prepared to base their decisions respecting the prosecution of charges on whether or not the available evidence presents a reasonable likelihood of conviction and whether or not it appears to be in the public interest to prosecute.

6. THAT I am of the view that the interest of the Applicant in having these particular issues resolved is significantly different than the interest of the individual Defendant in simply having the decision overturned.

7. THAT I consider it to be a matter of importance to the administration of justice to seek clarification respecting the issues of law in this appeal and take this affidavit in support of the Atttorney General of Saskatchewan's application for leave to intervene so that counsel for the Attorney General might seek to ensure that those issues of law are fully argued before the Court of Appeal.


Signed November 24, 2004 before a Commissioner for oaths.