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Saskatchewan
Memo to intervene in its own appeal
Judge George
Baynton's historic judgment, page 1
>>>page
2
- 2003 SKQB 559 Q.B.G. A.D.
1994 No. 271 J.C.S.
- IN THE QUEEN'S BENCH JUDICIAL
CENTRE OF SASKATOON
-
- BETWEEN:
-
- THE ESTATE OF DENNIS KVELLO
(by his personal representative, Diane Kvello), DIANE KVELLO,
[S.K.], [S.K.], KARI KLASSEN, RICHARD KLASSEN, PAMELA SHARPE,
THE ESTATE OF MARIE KLASSEN (by her personal representative Peter
Dale Klassen), JOHN KLASSEN, MYRNA KLASSEN, PETER DALE KLASSEN,
ANITA JANINE KLASSEN PLAINTIFFS
- - and -
- MATTHEW MIAZGA, SONJA HANSEN,
THE ESTATE OF RICHARD QUINNEY (by his personal representative
Murray Brown), BRIAN DUECK, CAROL BUNKO-RUYS DEFENDANTS AND BETWEEN:
MATTHEW MIAZGA and SONJA HANSEN
- PLAINTIFFS BY COUNTERCLAIM
- - and -
- RICHARD KLASSEN DEFENDANT
BY COUNTERCLAIM
- Robert L. Borden and Edward
Holgate for all the plaintiffs except Richard Klassen Richard
Klassen on his own behalf
- Donald A. McKillop, Q.C. and
Jerome A. Tholl for all the defendants except Brian Dueck
- David A. Gerrand and Stephen
D. McLellan for Brian Dueck
-
- 2
-
- JUDGMENT BAYNTON J. December
30, 2003
Nature of the
Case
[1] In July 1991, 16 individuals
were arrested and charged with over 70 counts of sexual assault
against eight foster children. Many of the children's allegations
of sexual abuse were bizarre and revolting because they involved
group and ritualistic sex with satanic overtones, the sexual
abuse and killing of babies and animals, the ingestion of human
flesh, feces, urine, blood and other horrible, perverted and
incredible acts. The case was labeled by the media as the "Scandal
of the Century".
[2] The real scandal, however,
is the travesty of justice that was visited upon 12 of those
individuals, the plaintiffs in this civil action, by branding
them as pedophiles even though each of them was innocent of the
horrendous allegations and criminal offences charged against
them. For a year and a half, they lived under the cloud of the
serious charges and, after being committed for trial at a lengthy
preliminary inquiry, faced a criminal trial and the potential
of lengthy jail terms. Eventually, all the charges against each
of them were stayed by the Crown, but most of the charges were
not stayed until just before their criminal trial was to begin,
more than a year and a half after the charges were laid. The
three children who made most of the allegations of sexual and
physical abuse subsequently recanted their allegations and these
recantations were made public through the news media.
[3] The plaintiffs subsequently
commenced a civil malicious prosecution action against the two
prosecutors involved, the investigating police officer and the
therapist for the three dysfunctional children who made most
of the false allegations. A counterclaim for defamation was brought
by the prosecutors against one of the plaintiffs.
3
The lengthy civil trial that
was conducted before me demonstrates how lying children wreaked
such havoc, not only in the lives of the innocent people who
were charged with numerous serious criminal offences founded
on the children's false allegations, but also in the lives of
the individuals who foolishly and maliciously acted together
to charge and prosecute the plaintiffs for those criminal offences.
As Mr. Justice Wimmer of this court so aptly observed in the
Latimer case, "there is no joy in this for anyone".
The same can be said about this case.
[4] In many respects, the judgment
that follows is more like a public inquiry report than a civil
judgment. The civil action required the court to review the roles
played by the defendants in their dealings with the children
and their response to the incredible allegations of abuse. The
review encompassed not only the lengthy criminal proceedings
involving the plaintiffs, but also the related criminal proceedings
involving four other individuals. One of those individuals pled
guilty to one offence against each of four of the children. The
other three individuals were convicted of several offences but
their convictions were overturned by the Supreme Court of Canada.
The series of events that are relevant to the civil action span
a period of time in excess of a decade. The evidence pertaining
to those events is voluminous. The judgment outlines my determination
of the facts from all this evidence and sets out in detail my
reasons for concluding that the plaintiffs have a valid cause
of action. I recognize that the length of the judgment is beyond
the endurance of all but highly motivated readers.
[5] I begin by giving an overview
of the case to put it in perspective. Next I outline the issues
and set out some background information. Then I set out in chronological
order, to the extent allowed by the issues, the salient facts
and inferences of fact I have drawn from the evidence respecting
the issues. Then I will outline the applicable law and apply
it to the facts that I have determined. In doing so, I will comment
on some specific events upon which the defendants rely. I will
then move on to
4
outline my reasons for allowing
the plaintiffs to call rebuttal evidence. Finally, I will set
out my disposition of the case and the counterclaim of the prosecutors
against one of the plaintiffs for defamation.
An Overview
of the Case and its Aftermath(back
to Sask. A. G. Memo)
[6] In my view, the outcome
of the bizarre and unique case before me is determined largely
by the uncontroverted circumstances of the case itself. The primary
difficulty I encountered during the trial and in coming to grips
with the issues, was in keeping the case in proper perspective.
An analogy can be made to the zoom lens of a camera that is trained
on a flower. Although the lens can be zoomed in to reveal a minute
detail of the flower, the image of the whole flower is temporarily
lost until the lens is zoomed back out. Throughout the lengthy
trial, the images I was given of the case before me were ones
of minute detail. It appears that during the investigation and
prosecution of the case, the defendants focused on the minute
detail and never stood back to view the case in full perspective.
Had any of them done so, I would not be giving judgment in this
case.
[7] In many respects, the continued
focus on the minutiae of detail in this convoluted case during
the trial has impaired the ability of the parties to see it in
proper perspective. It has also impaired my ability to keep this
judgment to a reasonable length. I would have preferred to have
confined it solely to my determinations of facts from the evidence
and to the inferences I have drawn from those facts. But in fairness
to the parties involved in the lawsuit, and to provide an acceptable
level of substantiation of my determinations for appeal purposes,
I have no alternative but to relate many of the evidentiary details
of the case. I have avoided cluttering up the judgment as much
as possible, however, with references to court exhibits and transcript
page numbers and with quotations from them or from the testimony
of the witnesses. In many instances, reading
5
the transcripts in context
is required to enable the reader to assess the accuracy of the
facts that I have found and the inferences I have drawn from
those facts. To simplify the repeated naming of the parties and
the witnesses, I have referred to them in the main by their surnames
only. I intend no disrespect in doing so.
[8] It is important to observe
that the plaintiffs, from the outset of this trial, have not
relied on the recantations of the children as proof of the malicious
prosecution action. With one exception, the recantations of the
children were made long after the stays of the charges against
the plaintiffs were entered by the Crown. Obviously the defendants
did not have the benefit of these subsequent recantations at
the time they made their decisions and assessments. It would
be improper and grossly unfair to them to judge their actions
on the basis of information gained through hindsight.
[9] Each of the [R.] children
testified in the trial before me and each confirmed the recantations
he or she made previously. Each of them testified that all the
allegations made, including mutilating and killing babies and
animals, eating excrement and drinking urine and blood, being
forced to participate in group sex, and in a multitude of oral,
vaginal and anal sexual acts with the Klassen and Kvello families
and their children, were fabricated by [M.R. 1] and adopted by
[M.R. 2] and [K.R.]. The motive for [M.R. 1]'s initial fabrications
was to induce Social Services to remove his two sisters from
their Klassen foster home and reunite them with him in the Thompson
foster home. [M.R. 1] says that the only person who abused him
was his natural father. It was obvious from his testimony that
he still resents his father. [M.R. 2] and [K.R.] say that the
only person who sexually or physically abused them was [M.R.
1], their brother. It was obvious from their testimony that they
still resent their brother, not the Klassens or the Kvellos.
[10] In my view, the main significance
of the recantations of the [R.] children and their testimony
in the trial before me is to stifle any view that may still be
held by the
6
defendants or by the public
that the plaintiffs are guilty of the horrible offences that
were charged against them. It is now known as a fact that despite
the public statements made on behalf of the prosecutors to the
effect that the stays were entered because the children were
too traumatized to testify, the allegations on which the charges
were based are false and the plaintiffs are innocent of them.
The recantations also underline the reality that children do
sometimes lie and that those lies can include false and fabricated
sexual abuse allegations.
[11] The recantations and the
recent testimony of the [R.] children also demonstrate to Social
Services officials, workers and personnel, as well as to police
officers and prosecutors, the real threat to society of overzealous
child protection responses fueled by politically correct or trendy
ideologies of the day that are relied upon as a justification
to overrule objectivity, reason, common sense and tested and
tried legal traditions. These kinds of responses not only jeopardize
the freedom of innocent people, but they indirectly harm, and
at times even jeopardize, the safety and welfare of the very
children that are the subject of the protection efforts. This
is what happened in this case. The [R.] children testified that
they all felt betrayed, for one reason or another, by their Social
Services workers and therapists. It is also evident that with
the exception of C.H., the other child complainants as well as
the six children of the plaintiffs, were significantly harmed
by the overzealous response that was made in this case.
[12] The two [R.] girls said
that they were regularly sexually abused by [M.R. 1] in their
birth home, in the Klassen home and in the Thompson home. At
first, the abuse consisted only of genital touching but it soon
escalated into sexual intercourse at the Klassen and Thompson
homes. [M.R. 1] would sneak into the girls' bedroom and have
sexual intercourse with them. The only respite they had from
his abuse was during the six-month interval that began in December
1989 when [M.R. 1] was removed from the Klassen home. The respite
ended when they were reunited with him in the Thompson
7
home. They say that the level
of sexual abuse increased significantly after their move to the
Thompson home despite verbal and written requests to Bunko-Ruys
for help.
[13] As an undisputed example,
[M.R. 1] had sexual intercourse with his sisters during a therapy
session in Bunko-Ruys' office while Dueck and Bunko-Ruys left
them alone in the office for a few minutes. When I related this
incident as an evidentiary example in my non-suit judgment, I
stated that Dueck and Bunko-Ruys were standing outside the office
door when this incident occurred. This was the evidence before
me at that time. The subsequent testimony of Dueck satisfies
me that the incident likely occurred while Dueck and Bunko-Ruys
were downstairs in the building. As another undisputed example,
[M.R. 1] had sexual intercourse regularly with his sisters in
the Thompson home and yard and on at least one occasion, considerable
violence was used by him. [M.R. 2] and [K.R.] say that Bunko-Ruys,
Dueck, Miazga and the Thompsons were aware of the ongoing sexual
abuse but they did not seem to care. All they seemed to care
about was getting more "disclosures" from them. Once
the criminal proceedings were stayed, they lost interest in them.
[14] [M.R. 2] in particular
still feels hurt and resents [M.R. 1] for what he did to her
over a period of several years. Shortly after she publicly recanted
the allegations that had been fabricated by [M.R. 1], [K.R.]
and herself, she contacted [M.R. 1] at Egadz to seek an apology
from him for what he had done to her over the years. She felt
this would help her to forgive him. She was then 15 and had not
been under [M.R. 1]'s domination for some time. But he was still
intent on abusing her. He tried to fondle her under the table
and when she resisted his advances, he got annoyed with her and
choked her because she had publicly exposed his misconduct. Three
days later he almost killed her for which he was charged, convicted
and spent four months in jail. [M.R. 2] said that [M.R. 1] alternated
between denying his abuse of her and then admitting it but not
wanting to talk about it. She says that she recanted the allegations
before having any
8
contact with the Klassen or
Kvello families. She says she did not do so earlier because she
was scared, knowing that these people had been wrongfully charged.
She was also afraid to come out and say she was raped by [M.R.
1] because she did not know how people would respond. She says
that when her drinking and drug friends found out about it, they
accused her of "doing incest" and enjoying it.
[15] The defendants knew at
the time they were involved in the case about the sexual abuse
by [M.R. 1] of his sisters. In their testimony, they tried to
minimize the consequences that their knowledge of this ongoing
abuse has on the outcome of this case. They take no responsibility
for failing to prevent the abuse.
[16] In fairness to them, neither
a child therapist, a police officer nor a prosecutor has the
power to remove children from foster homes or to place them in
other foster care homes. That power is held by Social Services
personnel who have the legal power and responsibility for child
protection issues. But it is reprehensible that they took no
meaningful action to have [M.R. 1] and the girls placed in separate
foster homes to prevent further incidents of sexual abuse. Instead
they relied on ropes and buzzers placed on [M.R. 1]'s bedroom
door in the Thompson home in an attempt to prevent him from getting
into the girls' bedroom at night to sexually abuse them. The
defendants and Social Services personnel were so caught up in
their zeal to pursue the plaintiffs for the harm they suspected
they had inflicted on [M.R. 2] and [K.R.], that they ignored
the harm they knew was being inflicted on them by [M.R. 1]. What
is even more indicative of their misguided zeal is that they
took no reasonable or effective measures to protect [M.R. 2]
and [K.R.] from further harm by [M.R. 1].
[17] It appears that Social
Services was given bad advice by Bunko-Ruys to the effect that,
for therapeutic reasons, the children needed to be kept together
and that the safety of the girls could be protected by the installation
of the devices I have mentioned.
9
But in view of the zealous
responses that Social Services routinely makes to unsubstantiated
sexual abuse allegations, their ineffective response to this
substantiated and ongoing sexual abuse on the part of [M.R. 1]
was irresponsible, hypocritical and inexcusable.
[18] [M.R. 2] and [K.R.] testified
that they had looked up to their older brother [M.R. 1] for as
long as they could remember, including some of the time they
were with him in their birth parents' home. He looked after them
and protected them and, in a sense, they saw him as a parental
figure because they were neglected by their natural parents.
Although they felt hurt and betrayed when he sexually abused
them, they still had feelings for him. Although they knew that
[M.R. 1]'s stories of abuse were untrue, they eventually came
to believe them and adopted them as their own. They say that
they would often sit in the kitchen at the Thompson residence
until two or three o'clock in t he morning while Marilyn Thompson
wrote down all the things they "disclosed" to her.
Often she plied them with questions until they were exhausted.
Marilyn Thompson regularly reported these "disclosures"
to Social Services, Bunko-Ruys and Dueck.
[19] [M.R. 1] talked about
his contempt for the lack of discipline he received for his sexual
abuse of his sisters and said he preferred being made to stand
in the corner than losing the sexual gratification his sisters
provided to him. He admitted that he sodomized other boys and
sexually assaulted other children. This was known to his care
givers and the defendants and they relied on these events as
evidence of his "sexualization".
[20] The children realize the
enormity of the tragedy that has been suffered by the plaintiffs
as a result of their false allegations. Although they are to
be commended for their courage in admitting the wrongs that they
committed, I am not convinced that they yet accept responsibility
for them. Instead, they appear to blame their social workers
and child therapist, Bunko-Ruys. My reading of the transcripts
of the preliminary inquiries
10
and of the trial, and my viewing
of the comments made by Dueck and Bunko-Ruys during the videotaped
interviews of the children, demonstrate that the children were
led to believe that they were not responsible for their sexualization.
They were repeatedly told that their inappropriate sexual activity
was the responsibility of their alleged perpetrators.
[21] I mention this to illustrate
that it is neither kind nor helpful to children to instill in
them these kinds of questionable views. Until a person, even
a child, begins to take responsibility for his or her actions,
there is little likelihood that long-term therapy or counselling
will be of much benefit. In my respectful view, this case demonstrates
that the years of therapy the children received from Bunko-Ruys,
provided them with few lasting benefits. Instead, it appears
to have harmed them.
[22] The reader cannot be faulted
for wondering how any reasonable person could have believed and
acted upon the bizarre allegations I outlined previously. Not
only was the nature of the allegations bizarre, but the fact
that it implicated 16 individuals was of itself bizarre. These
individuals had little in common other than the fact that some
were related by blood or marriage and some were, or had been,
foster parents. The individuals charged included several unrelated
mothers who had their own children. Some of these mothers were
pregnant during the time that some of the assaults charged against
them were alleged to have taken place. None of these children
had ever been abused. One of the plaintiffs was an aged grandmother
who was practically blind and had limited mobility. Some of the
plaintiffs had been approved as foster parents and had successfully
parented many other foster children who made no allegations of
abuse.
[23] The ritualistic and satanic
aspect of the allegations was the only possible explanation of
why so many apparently normal people would perpetrate such unspeakable
acts on young children. But there was not a shred of evidence
that the
11
plaintiffs were members of
a cult, that they practised witchcraft, or that they were involved
in any other type of satanic or ritualistic practices. The defendants
knew that the natural parents of the [R.] children were deaf
and that Peter Klassen had fondled two neighbour girls. But the
defendants never seriously paused to consider that it was highly
unlikely that such a large number of apparently normal people
would conduct themselves in the fashion alleged. Nor did the
defendants ever seriously consider that such unlikely allegations
were false, even though they knew that the children were extremely
dysfunctional and often told lies.
[24] What makes the defendants'
conduct toward the plaintiffs even more astounding, is that the
horrific allegations of the [R.] children were not restricted
to the 16 individuals charged. Numerous other identifiable individuals,
who were never charged by the defendants, were named by the [R.]
children as abusing them. In fact the [R.] children named just
about every individual with whom they had ever had any significant
contact, such as grandparents, aunts, neighbours and other children.
None of these other individuals, although most were known to
the defendants, was ever investigated or charged.
[25] I make these observations
to show that this was not a case where the circumstances themselves
called out for an explanation by the alleged perpetrators. The
reverse was true. It was a case that called out for an explanation
by the defendants as to how the allegations could possibly be
true. Somewhat surprisingly, the defendants maintain that they
either did not believe or did not place any significance on the
ritualistic or satanic aspect of the allegations. But as I have
outlined, this is the only possible explanation of why so many
people would do such strange things in concert as alleged by
the [R.] children. As well, if the defendants did not believe
this material aspect of the allegations of the [R.] children,
how could any reasonable belief be placed in the truth of what
remained of their allegations?
12
[26] Although I have attempted
to set out the salient events of the case in a chronological
fashion, I have been required in many instances to interrupt
the chronological sequence by jumping back or ahead in time to
comment on incidents that pertain to a particular issue or to
a particular defendant. Unfortunately this has required me at
times to repeat segments of the evidence to give context to the
issue or the particular defendant under consideration. I have
also deemed it necessary, from time to time, to zoom back out,
so to speak, to view the case in full and proper perspective
in the quest to determine if any of the defendants maliciously
prosecuted the plaintiffs within the parameters of this cause
of action.
[27] Unfortunately, I have
no other alternative but to make many critical and negative comments
about each of the defendants named in this lawsuit. This does
not imply that the defendants lack repute or are incompetent.
Reputable and competent people at times make mistakes and do
things that they should not have done. Although such people must
be held accountable for their mistakes, they can learn from those
mistakes and, in doing so will be better equipped to carry on
their respective professional practices. Although I have considerable
empathy for the negative impact this judgment will have on each
of the defendants, I have even greater empathy for the negative
impact the wrongful prosecution has had on the plaintiffs. The
plaintiffs did nothing to deserve what the defendants wrongfully
caused to be done to them. The defendants have no one to blame
but themselves for being held accountable for their actions.
Issues
[28] There are two primary
issues that remain to be determined by this final judgment:
13
1. Whether the defendants maliciously
prosecuted the plaintiffs wi thin the meaning ascribed to this
cause of action by the case law as claimed in the main action.
2. Whether the plaintiff (defendant
by counterclaim) Richard Klassen, defamed the defendants (plaintiffs
by counterclaim) Matthew Miazga and Sonja Hansen as claimed in
the counterclaim to the main action. There is also a secondary
issue that is dealt with in this judgment. During the trial,
I permitted the plaintiffs to call a rebuttal witness after the
close of the defendants' case and undertook to provide my reasons
for doing so in this judgment.
Background
The Civil Action
[29] The 12 plaintiffs in this
action consist of a brother and sister who were charged as "young
offenders", four pairs of spouses (one is deceased and two
pairs were foster parents), a single woman who was a foster parent
and a grandmother (now deceased) who was partially blind and
physically disabled and who had been a foster parent at one time.
[30] The nub of the plaintiffs'
action is a claim for damages for malicious prosecution against
the four remaining defendants consisting of a child therapist,
Carol Bunko-Ruys, a police officer, Brian Dueck and two prosecutors,
Matthew Miazga and Sonja Hansen. The fifth defendant named in
the style of cause is the estate of a former director of public
prosecutions, Richard Quinney, now deceased, but the action against
the estate was dismissed for the reasons set out in the non-suit
judgment.
14
[31] The plaintiffs' action
also includes other causes of action collateral to the malicious
prosecution action including a negligence claim against the defendant
child therapist, a negligent investigation claim against the
defendant police officer and a claim that he breached the plaintiffs'
s. 7 rights guaranteed by the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (U.K.), 1982, c. 11. The action also
alleges conspiracies on the part of the police officer and therapist
to injure the plaintiffs. Although the plaintiffs have not formally
abandoned their collateral causes of action, they presented their
case as a malicious prosecution action and focussed their submissions
on this cause of action.
The Prior Criminal
Proceedings
[32] As I noted previously,
the criminal proceedings involved four individuals who are not
plaintiffs in this civil action. These four individuals were
also charged in connection with alleged assaults on some of the
same children who had made false allegations against the plaintiffs.
Three of these individuals are the natural father and mother
and a boyfriend of the mother of the [R.] c hildren (the three
children who testified in the case before me). These three individuals
were prosecuted by means of a separate preliminary inquiry and
trial. They were convicted and sentenced at trial, their convictions
were upheld by a majority decision of the Court of Appeal but
those convictions were overturned by the Supreme Court of Canada.
The boyfriend was acquitted and a new trial was directed respecting
the father and mother. The Crown did not proceed with the new
trial or take any further action against these three individuals.
I will refer to the criminal proceedings involving them as the
"[R.], [R.] and White" proceedings.
[33] The fourth individual
charged who is not a plaintiff in the malicious
15
prosecution case before me
is Peter Klassen. He is the husband of the deceased grandmother,
Marie Klassen, whose estate is a plaintiff in this action. He
is the father of Dale Klassen, John Klassen, Richard Klassen
and Pamela Sharpe, who are plaintiffs in this action. He had
a criminal record as a consequence of his prior conviction and
jail sentence in 1989 for sexually assaulting two neighbour children.
Those sexual assaults consisted of the fondling of the neighbour
children. He pled guilty to those offences. The two neighbour
children were not implicated in any way in the subsequent sexual
assault charges that were brought against him. None of the allegations
against the plaintiffs were made until after Peter Klassen had
been convicted for the sexual fondling of the neighbour children.
[34] Peter Klassen and 10 of
the plaintiffs in the civil case before me, were prosecuted jointly
by the Crown. [R.], [R.] and White, who are not plaintiffs, were
prosecuted jointly as well. But the criminal proceedings involving
them were prosecuted separately from the criminal proceedings
involving the other eleven individuals. I will refer to the proceedings
involving the 11 individuals as the "Klassen - Kvello"
proceedings. Two of the individuals, who are the remaining plaintiffs
in the civil action, were proceeded against as young offenders
due to their ages at the time of their alleged sexual assaults
against the child complainants. I will outline in more detail
these three separate proceedings later.
[35] The 11 individuals prosecuted
jointly in the Klassen - Kvello proceedings consisted of nine
Klassen family members and two Kvello family members. The nine
Klassens consisted of the two grandparents, Peter and Marie Klassen,
one daughter, Pamela Sharpe, and the three sons and their three
wives, Dale and Anita Klassen, Richard and Kari Klassen and John
and Myrna Klassen. The Klassen family was initially represented
by Daryl Labach. After the preliminary inquiry, for reasons I
will outline later, the two grandparents retained their own counsel,
Jay Watson. Daryl Labach
16
continued to represent the
remaining seven Klassen family members. The two Kvellos consisted
of a husband and wife, Dennis and Diane Kvello and were represented
throughout by Robert Borden. The only connection between the
Klassen and Kvello families is that Diane Kvello (a Kvello by
marriage) is a sister to Anita Klassen (a Klassen by marriage).
[36] The two individuals prosecuted
as young offenders, were a son and daughter of the Kvellos, S.K.
(male) and S.K. (female). They were also represented throughout
by Robert Borden.
[37] Peter Klassen eventually
pled guilty to one count of sexual assault against each of the
three [R.] children and against C.H., a child not included as
one of the eight foster children I referred to previously. The
assaults alleged by C.H. were against Peter Klassen only and
he was not charged respecting them until November 1991. The nature
of the allegations consisted of sexual fondling, similar to the
nature of the unrelated sexual assaults of the two neighbour
girls for which he had previously pled guilty. The assaults alleged
against him by the [R.] children were of a much more serious
nature and included some of the bizarre things I related previously.
The Related
Judgment
Respecting Non-suit Motions
[38] A few weeks ago, in a
lengthy judgment dated October 27, 2003, Kvello v. Miazga, 2003
SKQB 451, [2003] S.J. No. 650 (QL) (Q.B.), I reviewed the law
pertaining to this case in the context of non-suit motions brought
by the defendants. The detailed analysis of the law set out in
that interim judgment is an integral part of my ultimate decision
in this case. I will only repeat the portions of it which are
required to give context to my conclusions in this final judgment.
But I adopt, as if repeated in this final judgment, the observations
I made and the conclusions I reached in the non-suit judgment
17
about the law and the collateral
causes of action. It should accordingly be read in conjunction
with this judgment. [39] At the time I wrote the non-suit judgment,
I was required to consider the evidence adduced in this case
up to that point to determine, in effect, whether the plaintiffs
had made out a prima facie case against each of the then five
defendants. In other words, I had to determine if a reasonable
trier of fact (a judge or a properly instructed jury) could find
in the plaintiffs' favour on the basis of the uncontradicted
evidence then before me. Because this case requires the drawing
of inferences of fact from other facts established by direct
evidence, I was required to determine whether the inferences
of fact relied upon by the plaintiffs could reasonably be drawn
by the trier of fact from the direct evidence. It would have
been inappropriate for me at that stage to have made any actual
findings of fact. In para. 47 of the non-suit judgment, I observed
that I would confine my comments on the evidence to a few examples
of the nature of the evidence I considered in concluding that
the plaintiffs had made out a prima facie case. [40] I held that
the plaintiffs had met the required evidentiary threshold respecting
each of the defendants in the lawsuit except for the estate of
Richard Quinney. The non-suit motion respecting his estate was
allowed and the action against it was dismissed. The non-suit
motion respecting the false imprisonment cause of action was
allowed and that cause of action was dismissed. The trial then
proceeded against the remaining four defendants on all the remaining
causes of action. Each of them, with the exception of Carol Bunko-Ruys,
testified at length. Further documents were adduced into evidence
and the plaintiffs called a rebuttal witness.
[41] I am now required to consider
afresh all the evidence adduced in this case using a different
evidentiary standard than before. In describing this standard,
I will use the malicious prosecution cause of action as an example.
But my comments pertain as
18
well to all the other causes
of action relied upon by the plaintiffs. In this final judgment,
I now have the role of the notional trier of fact referred to
in my non-suit judgment. I must determine the facts of this case,
the inferences of fact to be drawn from those facts and then
I must apply the applicable law to these facts.
[42] By way of general comment,
other than for a couple of minor clarifications I will make later,
I accept all the examples of the direct evidence I referred to
in my nonsuit judgment as facts and I accept all the inferences
I referred to in it as inferences of fact. There was nothing
in the evidence subsequently adduced in this case which refuted
or contradicted my description of the evidence.
[43] The onus of proof is on
the plaintiffs to satisfy me that each element of the malicious
prosecution cause of action has been proven against each defendant.
If it is not proven against a particular defendant, then that
defendant is not liable to the plaintiffs. The standard of proof
is on a balance of probabilities. This simply means that unless
it is more likely than not that the defendant in question did
in fact maliciously prosecute the plaintiffs, that defendant
is not liable to the plaintiffs.
The Facts and
the Inferences to be Drawn from those Facts
Nature of the
Evidence
[44] The evidence adduced through
this trial was somewhat unique in that most of it consisted of
thousands of pages of transcripts and documents. Many of these
transcripts were of the lengthy criminal proceedings that I referred
to previously including the [R.], [R.] and White preliminary
inquiry, the Klassen - Kvello preliminary inquiry, the [R.],
[R.] and White trial, the two appeals from it and Peter Klassen's
application to the Court of Appeal respecting his guilty plea.
The remaining transcripts
19
were of the lengthy examinations
for discovery of the five defendants which were tendered almost
in their entirety by the plaintiffs by way of "read-in"
evidence and of portions of the examinations for discovery of
some of the plaintiffs.
[45] The numerous documents
tendered into evidence include medical reports, police and prosecution
records, memos of various Social Services personnel, sexual abuse
of children protocols, police and prosecution notes, memos, correspondence
and other like documents. The remaining evidence consists of
the testimony at the civil trial of some 40 witnesses and of
the numerous lengthy videotaped and audiotaped interviews of
the plaintiffs and numerous children that were viewed in their
entirety during the trial. Many of these videotaped interviews
were of the child complainants who testified at the various criminal
proceedings I have related.
[46] Unfortunately, the parties
were not able to agree on the preparation of common document
binders. Because of this, i ncomplete copies of some documents
were tendered into evidence by one party despite the fact that
a complete copy had been tendered into evidence by another. Common
document numbers were not always utilized. The reference in the
testimony of the witnesses to the documentary exhibits is accordingly
confusing at times.
[47] My findings of fact are
based on the evidence that I have just outlined. Much of that
evidence is not in dispute. The primary dispute between the parties
pertains to the inferences of fact that they ask the court to
draw from all the bits and pieces that make up the totality of
the evidence I have just described. There is no single piece
of evidence from which such inferences can be drawn. The inferences
can only be drawn from the cumulative effect of the evidence
as a whole and from the nature and circumstances of the case
itself.
20
[48] It is not practical nor
necessary that I comment on all the testimony and documentary
evidence adduced in this case. The transcripts and the documents
that were admitted into evidence speak for themselves. Much of
this evidence and the testimony I heard in court is duplicitous
and has marginal relevance. My task is to determine from this
evidence the facts which are relevant to the legal issues raised
by the litigation. In addition to relating these facts from a
chronological perspective, I will attempt to illustrate what
each of the parties knew or should have known at various stages
of the criminal investigation and the prosecution in which they
were involved.
[49] Before beginning to relate
the factual details of this case, I will outline some of the
difficulties with the evidence.
Difficulties
with the Evidence
[50] The facts that I relate
in this judgment involve in part the actions of various Social
Services workers, personnel and officials. None of them testified
in the case before me. The testimony of even one of these individuals
would have been helpful in clarifying many of the material issues
in dispute. Section 73 of The Child and Family Services Act,
S.S. 1989-90, c. C-7.2, provides these individuals with very
broad protections from being compelled to appear and give evidence
in a court of law. The benefit of those protections was relied
upon by Social Services in applying to quash a subpoena issued
at the request of the plaintiffs against one of the senior workers.
An agreement was reached however respecting the application and
a letter was provided by the worker that clarified the issue
in question.
[51] As well, most of the parties
and the witnesses who testified at the civil trial or who gave
evidence at their respective examinations for discovery, understandably
had considerable difficulty recalling specific details of dates,
conversations, motives, thought
21
processes and like matters
that pertained to events that took place well o ver a decade
ago. But I was not impressed by the inability of some of these
individuals to recall even memorable and significant events.
In many instances it was obvious that some of the witnesses,
particularly Dueck and Miazga, were reluctant to testify about
or acknowledge such events. I am not satisfied that the professed
lack of recall was always genuine. In other instances, admissions
against interest had to be laboriously extracted from the defendants
and other witnesses through lengthy cross-examination and by
reference to uncontroverted documentary evidence. This process
considerably lengthened the trial.
[52] For the reasons I have
outlined, some of the facts I relate often lack specific dates
or other specific details because I was often not provided with
reliable evidence of specific details. Although I take full responsibility
for any errors of detail that I may make in relating the evidence,
in some instances the details of the evidence itself may be in
error.
The Manner in which the Criminal
Charges Originated
[53] Some background information
respecting the [R.] children is required to give the case some
context. This background information was either known or was
readily available to each of the defendants in this action. It
explains in large part how the bizarre allegations of the [R.]
children were given credence and how the travesty of justice
occurred.
[54] [M.R. 1], [M.R. 2] and
[K.R.] were born into a dysfunctional family. [M.R. 1], the oldest,
was born on October 18, 1979. [M.R. 2] and [K.R.] were twins
and were born on March 4, 1982. Their parents, [D.R.] and [H.R.]
were deaf mutes, they were alcoholics, they did not get along
well together and they neglected their three children. [H.R.]
was a prostitute and regularly brought three or four male customers
home with her
22
at a time. She acquired a boyfriend,
Donald White. The children, at an early age, were exposed to
unhealthy sexual activity in their birth home. They realized
that they did not have good parents and they had little use for
their mother who seemed to have no time for them.
[55] Their father attempted
to parent them but was incapable of doing so. They were left
on their own to do whatever they wanted to do. [K.R.] relied
on [M.R. 2] for support and [M.R. 2] in turn relied on [M.R.
1] for support. In many ways, [M.R. 1] was the parent figure
for them and he exercised a high degree of control over them.
Social Services intervened and provided a degree of supervision
of the children in the birth home to compensate for the neglect
they suffered at the hands of their parents.
[56] [M.R. 1] says that he
was sexually assaulted on several occasions by his natural father.
He in turn sexually assaulted his sisters and his sisters in
turn acted out sexually with one another. It appears that the
whole [R.] family was dysfunctional and likely sexually perverted.
The [R.] children were apprehended by Social Services in February
1987 and placed in foster care. At that time [M.R. 1] was seven
and his sisters were almost five. Social Services chose the Dale
and Anita Klassen foster home as the home in which to place the
[R.] children. Dale and Anita Klassen had previously been assessed
and approved as foster parents by Social Services. They had taken
in foster children for some time without incident before the
[R.] children were placed with them. Anita Klassen had been sexually
assaulted as a child and, because of this, she advised Social
Services that she did not want any children who had been sexually
assaulted to be placed with her. She was concerned that her own
experience would make it difficult for her to deal with an abused
child.
[57] For some unexplained reason,
Social Services ignored this request and, without disclosing
to Dale and Anita Klassen that the [R.] children had been sexually
23
abused and were sexually dysfunctional,
placed them in the Klassen home. It soon became evident to the
Klassens that the children were abnormal and constituted a real
parenting challenge. They required constant supervision to keep
them from inappropriately touching one another and others. They
created problems at school that were so outrageous that [M.R.
1] and [M.R. 2] were eventually assigned special supervisors
to monitor their "touching problem" as it was termed
by their therapist, Bunko-Ruys, when she became involved later
on. In [M.R. 1]'s case, the supervisors even had to be with him
in the washroom to prevent him from sexually abusing other children.
[58] Dale and Anita Klassen
did what they could, within the limited resources available to
them, to parent the [R.] children. At the time the [R.] children
were placed with them, they had two of their own children, T.K.,
8, born July 31, 1978, and J.K., almost 4, born March 17, 1983.
The Klassen family treated the [R.] children as their own by
involving them in all their family activities and outings. Their
social contacts with others, including their extended families,
were limited by the extreme "off the wall" conduct
of the [R.] children, particularly [M.R. 1]. When they did get
together with other family members outside their home, the conduct
of the [R.] children was such that they usually had to cut their
visit short and get them back home before they were told to leave.
[59] Anita Klassen repeatedly
requested assistance from Social Services but, in the main, her
requests were ignored. She did get some relief by means of "respite"
workers and school supervisors. But she nevertheless was called
to the school regularly to deal with problems relating to [M.R.
1]. She had to deal with [M.R. 1] being kicked out of school
and kicked off the bus. She had to arrange for taxi transportation
for [M.R. 1] and then deal with the irate drivers. She had to
deal with the police when [M.R. 1] set fires and assaulted other
children. She had to take the [R.] children for medical examinations
and psychological assessments.
24
[60] The Klassens had to try
to keep [M.R. 1] under supervision at all times to try and keep
him from touching his sisters. At night, they had to try to keep
him from sneaking into his sisters' bedroom. On one occasion,
[M.R. 1] put a butter knife in [K.R.]'s vagina. On another he
sexually assaulted [K.R.] and other girls in the playground.
On another, he pushed [K.R.] out in front of a moving vehicle
causing her to suffer serious facial and limb injuries that required
hospitalization. Finally, the Klassens could take no more of
this and advised Social Services that they could no longer care
for [M.R. 1]. They requested that [M.R. 1] be removed from their
home, but were prepared to continue to parent his sisters. The
Klassens frequent requests of Social Services were either ignored
or deferred.
[61] Notwithstanding the stress
they were experiencing, they continued to care for [M.R. 1] because
they had no other option except to put him out in the street.
Anita Klassen became pregnant with a third child and [M.R. 1]
became jealous and threatened to kill the baby, T.K. once he
was born on April 1, 1989. The Klassens took his threats seriously
and finally prevailed on Social Services to place [M.R. 1] in
another foster home. Social Services did so on December 12, 1989,
over a year after the Klassens had been requesting that [M.R.
1] be removed. He was placed with Lyle and Marilyn Thompson,
a "therapeutic" foster home. [M.R. 2] and [K.R.] were
left in the Klassen home.
[62] I go back a couple of
years in time to relate a significant event. The [R.] children
had been much happier in the Klassen foster home than they had
been in their birth home. They still had some affection for their
natural parents and Social Services allowed them unsupervised
visits with their parents in their birth home. The Klassens were
required by Social Services to facilitate those visits. On one
occasion on September 21, 1987, when the [R.] children were returned
after a visit with their natural father, Anita
25
Klassen noticed blood on [M.R.
2]'s panties as she was getting her ready for bed. When she asked
[M.R. 2] about the blood, [M.R. 2] responded that her deaf daddy
put his penis in her bum. Anita Klassen immediately contacted
the Social Services mobile crisis unit and advised of her concern
that [M.R. 2] may have been sexually assaulted. She took [M.R.
2] to the hospital as instructed and a report was provided by
the examining doctor to Social Services. Two police officers
attended the Klassen residence and interviewed the [R.] children.
They were unable to obtain a reliable explanation for the incident.
There was no suggestion from the children or from the circumstances
of the incident, that the Klassens had in any way sexually assaulted
or abused [M.R. 2]. On the further instructions of Social Servi
ces, Anita Klassen subsequently took [M.R. 2] to Dr. Anne McKenna
to be examined for potential sexual abuse.
[63] Just prior to [M.R. 1]
being removed from the Klassen home on December 12, 1989, Social
Services engaged a therapist, Bunko-Ruys, to provide therapy
for [M.R. 1]. Anita Klassen took [M.R. 1] to scheduled therapy
appointments commencing in October 1989. This was the first involvement
of Bunko-Ruys in the case. At about the same time, Dueck also
became involved in the case. At the request of Social Services
he interviewed the three [R.] children, likely in December 1989,
about potential sexual abuse. He was unsuccessful in obtaining
any "disclosures" to this effect. He made no notes
or any report of this interview. It appears that Social Services
had initiated an investigation of the Dale and Anita Klassen
foster home and as well the Pamela Sharpe foster home, because
Peter Klassen had pled guilty to the fondling of the two neighbour
girls I referred to previously. All the foster children in these
two homes were interviewed for "disclosures" of abuse
with negative results.
[64] In order to provide some
background information on what is to follow, it is necessary
to relate that Pamela Sharpe had also been approved by Social
Services as a foster parent several years before. One of the
children placed in her home by Social
26
Services was a small boy (who
I will refer to as "M.K."). M.K.'s mother had apparently
abandoned him at birth because he had a disfiguring birth defect
on his face. Pamela Sharpe accepted M.K. as if he had been her
own child. She supported him throughout all the surgeries required
to partially correct his birth defect. M.K. is one of the children
who was pressured into making allegations of abuse against her
even though he continued to deny such abuse for almost two years
after he was first interviewed.
Placement of the [R.] Girls
in the Thompson Home with [M.R. 1]
[65] Shortly after [M.R. 1]
was placed in the Thompson home in December 1989, [M.R. 1] made
a "disclosure" that he was concerned for the "safety"
of his sisters who remained in the Klassen foster home because
of some sexual abuse he had suffered there. He was annoyed with
Anita Klassen for instigating his removal from her home and his
objective was to have his sisters removed from her home as well
and be reunited with him in the Thompson home. He did not appreciate
being separated from his sisters whose proximity had previously
provided him with opportunities to obtain sexual gratification.
This "disclosure" to Marilyn Thompson was enough to
rouse Social Services into action and accomplish [M.R. 1]'s objective.
What followed was a frenzy of leading and suggestive interviews
of all the foster children and all the natural children who lived
in the Dale Klassen and Pamela Sharpe foster homes.
[66] I jump ahead to relate
that on May 29, 1990, [M.R. 2] and [K.R.] were summarily removed
from the Klassen home and placed in the Thompson home. The "disclosure"
by [M.R. 1] was duly reported to Dueck and Bunko-Ruys. The only
individuals who can give direct evidence of this and subsequent
"disclosures" made by [M.R. 1] and his sisters to the
Thompsons, is of course Lyle and Marilyn Thompson and the three
[R.] children. Dueck, Bunko-Ruys and numerous Social Services
personnel and officials were made aware of the "disclosures"
of the [R.] children by Marilyn
27
Thompson, the new foster mother
of the [R.] children.
[67] The present whereabouts
of the Thompsons is unknown to the parties. Dueck testified that
he had police services attempt to locate them without success,
but I have reservations about the legitimacy of those attempts.
The nature of these initial "disclosures" of the [R.]
children and the manner in which they were made or obtained is,
especially in the unique circumstances of this case, of critical
importance. It has a significant bearing on the legitimacy of
the investigation, the charges and the prosecutions. It was also
of critical importance to the defence of all 16 individuals charged
with the criminal offences. It has a significant bearing as well
on the determination of issues raised by this civil case. Accordingly,
the evidence of the Thompsons, tested by cross-examination, would
have been of considerable assistance to me. Later on, I will
relate how the potential evidence of the Thompsons in this regard
was in the main kept from the scrutiny of defence counsel and
the court on the basis of Miazga's objections.
[68] I did hear the uncontradicted
evidence of the three [R.] children in this regard but for obvious
reasons, I do not have a lot of confidence in their unsubstantiated
evidence, particularly that of [M.R. 1]. For the most part, however,
their evidence given at the trial before me has not been contradicted.
Also in evidence are the voluminous "Thompson notes"
which contain graphic details of some of the "disclosures"
the children made to Marilyn Thompson prior to their videotaped
"disclosures" to Dueck and Bunko-Ruys during the police
investigation.
[69] The videotaped interviews
of the [R.] children at the police station demonstrate graphically
what "disclosures" were made to Dueck and Bunko-Ruys
over a period of several weeks in the late fall of 1990. They
also demonstrate the leading and suggestive manner in which they
were obtained and the demeanour and behaviour the
28
children exhibited when making
the "disclosures". Dueck's examinations for discovery
read-ins and his testimony at trial illustrate that he is reluctant
to admit what he had been previously told of the "disclosures"
by the Thompsons. The same can be said about the examinations
for discovery read-ins of Bunko-Ruys. She elected not to take
the witness stand and testify at the trial. So it is not clear
what was "disclosed" to her by the [R.] children, when
those "disclosures" were made and under what circumstances
they were made. Defence counsel for the 16 individuals charged,
attempted at the two preliminary inquiries and at the trial,
to obtain some of this information. But again Miazga, in the
main, aggressively and successfully opposed those attempts.
[70] Nor is it clear how Social
Services personnel learned of these "disclosures" or
what other "disclosures" may have been made to them
or passed on to them. Social Services officials and workers chose
not to provide the information in their files respecting these
issues to the plaintiffs. In fairness to them, however, it appears
that at some point in the criminal proceedings that Miazga had
made preliminary arrangements for defence counsel to view some
materials at the offices of Social Services. In any event, it
is known from the documents that the parties have been able to
obtain, that [M.R. 1] disclosed to Nancy McGregor and Janet Kormish
of Social Services that he had been sexually assaulted in two
foster homes, the Dale and Anita Klassen home and the Pamela
Sharpe home. Social Services personnel took [M.R. 1] to the police
station to be interviewed about these "disclosures"
on May 25, 1990. Dueck was apparently unavailable so [M.R. 1]
was interviewed by Ronald Schindel who was then a Corporal in
the Youth Division. Although Schindel testified at the trial,
he had no recollection of the interview. He said he would have
prepared a report of the interview. Although Dueck says he searched
for the report at the police station, surprisingly he could not
locate it. Fortunately, a memo dated June 4, 1990 authored by
Carol Middleton, a Social Services worker, documents what transpired
at that May 25 interview.
29
[71] The memo relates that
Schindel chose not to interview [M.R. 1] on videotape. Nor would
he interview [M.R. 1] in the presence of the social workers.
Instead, he interviewed [M.R. 1] alone. He then called Middleton
into the room to advise that [M.R. 1] was making disclosures
against a large number of people who had supposedly abused him,
including parents, uncles, aunts, etc. Schindel felt that [M.R.
1] was too confused to be believable and that he might be projecting
a past abuse on the Klassen family. The only person Schindel
was inclined to believe that might have sexually assaulted [M.R.
1], was Grandpa Peter Klassen who had previously pled guilty
to fondling the neighbour children. Schindel's planned approach
was to proceed with a charge against Peter Klassen if he refused
to take a polygraph.
[72] The nature of the "disclosures"
made by [M.R. 1] to Schindel are significant. [M.R. 1] alleged
that Anita Klassen touched him on three occasions with her hand
on his penis late at night when he pretended to be asleep. He
alleged that J.K. (Anita's young daughter) also touched him in
this manner on his penis. He said that on one occasion only,
Dale Klassen had exposed his penis to him. He claimed that on
two occasions, Grandpa Peter Klassen had put his penis in [M.R.
1]'s anus at Pamela Sharpe's home while several other adults
were present. In response to further questions from Schindel,
[M.R. 1] said that Anita Klassen often pulled the hair of the
[R.] children when she was upset with them. Schindel suggested
to [M.R. 1] that he was angry at Anita and it appeared that he
would not mind seeing her in trouble. [M.R. 1] responded that
he did not care what happened to Anita.
[73] I leave the Middleton
memo for a moment to relate some other events that occurred on
May 25, 1990 that are documented in a memo dated June 5, 1990,
authored by Janet
Matkowski, now deceased. Her memo indicates that the original
complaint from [M.R. 1] included the allegation that Anita Klassen
had fondled his sisters, [K.R.] and [M.R. 2], and that Dale Klassen
had exposed himself to all the [R.] children. Matkowski
30
had a consultation on May 25,
1990 with Middleton and four other Social Services personnel.
The strategy that emerged was to pick up the [R.] girls from
school and place them in an alternative foster home. Social workers
were also to interview T.K. and J.K. (Dale and Anita's Klassen's
natural children) at school and either apprehend them or return
them to their parents.
[74] Matkowski interviewed
J.K. J.K. did not disclose any abuse but in fact became quite
adamant that no one was touching her sexually or physically.
The memo states: "She did not volunteer any information"
and "became tearful when discussing 'bad touching'."
Matkowski also interviewed T.K. but she was not able to obtain
any "disclosures" of physical or sexual abuse from
him either. But she noted that shortly after the interview began,
"the tips of T.K.'s ears became red" and that as the
interview progressed, "so did the redness on his ears."
When he was asked whether or not anyone was touching him, he
answered 'no'." He began to cry and "sobbed throughout
the interview." He was too upset to return to class. Matkowski
also interviewed Anita Klassen at her home and noted that she
"became immediately defensive when advised of the nature
of the investigation." She stated there was no abuse in
her home and that "they were free to investigate."
[75] On May 29, 1990, Matkowski
contacted Dale and Anita Klassen and requested they take J.K.
and T.K. to be examined by Dr.
Joel Yelland. The memo indicates that, "After a long
period of silence, Dale agreed to do so." The memo also
indicates that Dr. Yelland called and stated there were no physical
signs of sexual abuse on either child.
[76] I return to the Middleton
memo. It goes on to note that [on May 25, 1990], Middleton and
five other Social Services personnel then met to "discuss
our action from this point." It was 5:00 p.m. when it "was
decided that we would continue pursuing (sic) >>>page
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