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Judge George
Baynton's historic judgment, page 2
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of this concern on Monday,
May 28, 1990." On that date Middleton and two other Social
Services personnel attended at Bunko-Ruys office to have [M.R.
1] "reinterviewed". The memo observes that: "The
purpose of this interview was to allow me [Middleton] to hear
[M.R. 1]'s disclosure and then to pursue the investigation and
make a report for the Department of Social Services." [M.R.
1] enhanced some of his "disclosures" somewhat when
Bunko-Ruys attempted to get further clarification from him but
it appears that he forgot about other "disclosures"
he had made and did not say anything to Bunko-Ruys about them.
He stated that "he [was] not aware of any other sexual assaults
which occurred". The memo notes however that on May 25 (presumably
in his "disclosure" to Schindel) that [M.R. 1] said
that C.M., a foster child living at Pamela Sharpe's home, had
told him that Grandpa Peter Klassen has sex with his own daughter
Pamela Sharpe.
[77] The following day, May
29, 1990, Dueck is back on the scene with five Social Services
workers in a child apprehension operation to apprehend all the
foster children from the two foster homes. M.K., then four years
of age, was taken to the police station for an interview about
potential sexual abuse at the hands of her foster mother Pamela
Sharpe or her father Peter Klassen. He was presented with anatomical
dolls to demonstrate what had supposedly happened to him. The
videotape of the interview was viewed in the courtroom during
the civil trial. Despite persistent, suggestive and leading questions,
M.K. denied any abuse. The best "disclosure" that could
be obtained from him was that he had a secret which he stated
was that two older boys liked to hit him in his genital area.
[78] That did not satisfy Middleton
so while she transported M.K. to his new foster home, she explained
to him that the move was because "we were concerned about
children at Pam's house and that the concern was that Grandpa
touched children on their 'dinkies'." Not surprisingly,
four-year-old M.K. became more compliant at this point and stated
that Grandpa touches him on his dinky. Further questions elicited
no more details
32
other than that the touching
was done with Grandpa's hands. No questions were asked to determine
whether this occurred while Grandpa was bathing him, changing
his clothes or in some other fashion.
[79] The memo indicates that
later in the day, Kormish left a message stating that [K.R.]
has "disclosed" to Lyle Thompson that Anita Klassen
"has a touching problem", an odd term to be used by
an eight-year-old child. The memo also indicates that Peter Klassen
previously pled guilty to sexually assaulting two children in
Pamela Sharpe's garage. It further indicates that in December
1989, a sexual abuse investigation was done on the Pamela Sharpe
and Dale and Anita Klassen foster homes and that, "No disclosures
were made at this point." Middleton concludes on the basis
of what is in reality M.K.'s "non-disclosure", that
M.K. was sexually assaulted and should not be returned to Pamela
Sharpe.
[80] It is obvious from the
tone and content of the Middleton memo that Social Services personnel
were dissatisfied with not only the manner in which Schindel
had conducted the interview of [M.R. 1], but also with his decision
not to press charges against everyone named by [M.R. 1] with
the exception of Peter Klassen. It is also obvious that they
were convinced that all the Klassens named by [M.R. 1] had abused
him and they were not going to let any indications to the contrary
shake them from that view. Their response to the Schindel set-back
was to have [M.R. 1] re-interviewed by Bunko-Ruys, presumably
to get more "disclosures" and to obtain an assessment
that was more in line with their views. They also decided to
interview all the children and the parents in the two foster
homes that were implicated by [M.R. 1].
[81] Despite aggressive, suggestive
and leading questions, they were not able to elicit any evidence
of abuse that bolstered or supported [M.R. 1]'s allegations in
any meaningful fashion. In fact the reverse occurred. Yet they
chose to believe [M.R. 1] and
33
to disbelieve all the other
children. There are no transcripts or videotapes of these interviews,
but the comments in the Matkowski memo indicate that the children
were pushed beyond their comfort levels, one child to the point
of sobbing uncontrollably. This of itself impugns the pious concerns
voiced by all the child care workers and therapists who testified
in the criminal proceedings against the plaintiffs to the effect
that the child complainants would be extremely traumatized by
having to answer questions in court.
[82] It is obvious from the
Matkowski memo and the testimony at the civil trial of some of
the children who had been interviewed, that the manner in which
their interviews were conducted and the intense pressure that
was brought to bear on them to make "disclosures" of
abuse on the part of their natural or foster parents, were far
more traumatic than any court proceedings could have been. The
children were taken from their parents and subjected to questioning
that suggested they were not being honest if they did not admit
to abuse on the part of their parents. By contrast, the court
proceedings took place in a non-confrontational setting with
the public excluded, the accused individuals hidden behind a
screen and sympathetic judges dressed without robes. Examples
that support this assessment are the trial testimonies of J.K.
and S.K. who were subjected to this kind of pressure.
[83] The inferences I have
drawn about the aggressive and unobjective approach taken by
Social Services personnel and workers to sexual abuse "disclosures"
are supported by Dueck's evidence to the effect that he was upset
with the manner in which Schindel treated Social Services personnel
and the manner in which Schindel conducted and responded to his
May 25, 1990 interview of [M.R. 1] Dueck subsequently demonstrated
his own approach and interview techniques in the videotaped interviews
he conducted with Bunko-Ruys and Judy Hjertaas, both of whom
testified extensively about child-court trauma at the criminal
proceedings.
34
[84] Dueck undoubtedly learned
of the Schindel interview when he was assisting Social Services
personnel in apprehending the foster children on May 29, 1990.
He was of the view that Schindel should have permitted Social
Services personnel to attend the interview and should have put
more reliance on [M.R. 1]'s allegations. He was also of the view
that Schindel should have done more in regard to them. He took
Schindel to task for not doing so. Had Dueck paid more heed to
Schindel's assessment and properly performed his job as the investigating
officer, it is unlikely that the debacle that ensued would have
occurred.
The Police
Investigation
[85] On June 5, 1990, within
a few days of the placement of [M.R. 2] and [K.R.] in the Thompson
foster home with [M.R. 1], Social Services instructed Marilyn
Thompson to take the three [R.] children to Dr. Yelland for physical
examinations to detect any indications of sexual abuse. Dr. Yelland
is a family practitioner who performed numerous such examinations
for Social Services. His testimony in the court proceedings that
followed, was that he and Dr. Anne McKenna were likely the only
two doctors in Saskatoon to whom Social Services referred children
for such examinations. He said he had done between 200 to 400
of such exams. He described his findings in his June 7, 1990
reports to Social Services. He got his information from Marilyn
Thompson and from his interviews of the children.
[86] I will discuss these medical
reports in more detail later. In general terms, neither [M.R.
2] nor [K.R.] made any "disclosures" to Dr. Yelland
of sexual or physical abuse. [M.R. 1] and Marilyn Thompson "disclosed"
to him that [M.R. 1] had been sodomized on numerous occasions
in his birth home and apparently on the most recent occasion
in 1988 by Peter Klassen. He is the individual who had previously
pled guilty to
35
the fondling type of sexual
assault with a couple of neighbour girls and who is not involved
in this civil action before me.
[87] Dr. Yelland's professional
opinion of [M.R. 2] was that: . . . At the present time there
is no evidence of penetration of the vagina itself and all I
can say at the present time is that these findings would be consistent
with sexual abuse in the form of fondling. . . . This is consistent
with the findings set out in the November 10, 1987 report of
Dr. Anne McKenna who is an Assistant Professor at the Department
of Paediatrics, University of Saskatchewan, University Hospital.
She examined [M.R. 2] for indications of sexual abuse. [M.R.
2] was five at the time. The report was sent to Social Services
who had requested Anita Klassen to take [M.R. 2] to Dr. McKenna
for the physical examination. As I related before, Anita had
called Social Services mobile crises unit to report her concern
that [M.R. 2] might have been sexually abused by her natural
father while on a visit with him.
[88] Dr. McKenna observed in
her report that the child was well known to the institution due
to developmental problems encountered by a "hearing child"
being raised by "hearing impaired parents". There had
also been concerns previously about adequate nutrition. She states
that the [R.] children "were lost to followup to this institution
in 1983." She says:
I understand that the twins
have been in care since February of this year [1987]. According
to the foster mother, the natural mother was drinking and father
could not cope with active children.
On the past weekend, the twins
had a visit with their father. When [M.R. 2] returned home, the
foster mother noted some
36
bleeding and redness in the
perineum. [M.R. 2] stated to me that "my deaf daddy spanked
my bumb (sic). Then he put his fingers in my bumb. It hurt."
[89] The physical examination
performed by Dr. McKenna indicated that: . . . The hymen was
intact. There was slight posterior labial fusion. On the left,
there was a 2 centimeter shallow linear laceration along the
labia minora. Examination of the rectum was unremarkable. . .
.
There is no question in my
mind, given the history and the physical findings, that this
child has been subjected to nonaccidental trauma of the genital
area.
[90] I move forward again to
1990 and the physical examinations of the [R.] children by Dr.
Yelland. This time I refer to his examination of [K.R.]. His
opinion of [K.R.] was that:
These findings are highly compatible
with abuse having occurred in this child in the form of penetration
of the vagina or rectum. The source of this abuse cannot be specified
and may be from a penis, digital penetration, or penetration
with a foreign body. . . .
His opinion of [M.R. 1] was
that: "This child's rectal findings are compatible with
a history of Sodomy."
[91] Dueck and Miazga relied
on these medical reports as providing support or corroboration
of the credibility of the [R.] children's allegations of sexual
abuse that t hey made against the various persons charged, including
the plaintiffs. I will have more to say about this later.
[92] Dueck in the meantime
had made arrangements with the Thompsons for a
37
"chance" meeting
at Taco Time so that he could reacquaint himself with the [R.]
children. This meeting took place in early June 1990. [M.R. 1]
recognized Dueck and came over to talk to him. Dueck told [M.R.
1] that he was glad the kids were now "safe" in the
Thompson home. [M.R. 1] rose to the occasion and responded, "I
only told enough to get my sisters safe. I have got a lot more
to tell you about sexual abuse." Marilyn Thompson called
Dueck the very next day to report that the "floodgates of
information" had opened and that the [R.] children were
making all kinds of "disclosures".
[93] According to Dueck's own
evidence, he did absolutely nothing to try to determine how these
"disclosures" were being obtained nor did he alert
the Thompsons of the risk that if the "disclosures"
were obtained through inappropriate or improper interview techniques,
the successful prosecution of the case could be seriously jeopardized.
Almost 100 pages of handwritten notes, drawings and comments
came to the attention of the plaintiffs during the criminal proceedings
a year and a half later. Most of the notes were made in Marilyn
Thompson's handwriting and represented her representation of
the bizarre and unbelievable "disclosures" of abuse
made to her by the [R.] children in the mid 1990s.
[94] According to the [R.]
children, Marilyn Thompson routinely sat up with them until the
early hours of the morning asking them questions about what happened
in their previous homes and pestering them for particulars of
abuse. It is obvious that they obliged her. It is also obvious
from Marilyn Thompson's notes that by obtaining these "disclosures"
she was assisting Bunko-Ruys and Dueck in the police investigation
of the Klassens and Kvellos.
[95] Although Dueck and Bunko-Ruys
in their evidence (including the read-ins from their examinations
for discovery), try to distance themselves from the Thompson
notes, I am satisfied that they not only knew that these notes
existed but that they knew in
38
graphic detail what the notes
contained. Lyle and Marilyn Thompson regularly took the [R.]
children to Bunko-Ruys for therapy sessions with a frequency
on average of once or twice a week. Dueck met with the children
and Bunko-Ruys in her office on at least three occasions and
likely many more. Marilyn Thompson appeared to be motivated by
the fact that she was providing valuable assistance to the investigation
by passing on information of the children's "disclosures"
to Bunko-Ruys and to Dueck. She met with Dueck and Bunko-Ruys
on several occasions and talked to them on the phone quite often
as well. It is highly unlikely that she would have kept these
astounding and ongoing revelations to herself. It is also highly
unlikely that she would have expended such an effort in committing
these revelations of the children to writing for her own use
and no other purpose. The notes consist of almost 100 pages.
It is evident from the evidence that Dueck and Bunko-Ruys were
given copies of the notes.
[96] From the extensive read-ins
of the examinations for discovery of Bunko- Ruys, it is obvious
that she has a poor overall recollection of what "disclosures"
were made to her by the children or of what she may have reported
of them to Social Services or to Dueck. Nor does Dueck have as
good a recollection of any matters pertaining to the Thompson
notes or of his dealings with Bunko-Ruys or of what "disclosures"
she may have passed on to him than he has of many other aspects
of the case. My previous comments respecting contrived lack of
recall apply to these matters. Bunko-Ruys maintains that her
sole role was to "support the children in expressing their
perceptions" and that she had no role, obligation or responsibility
to assess the veracity of these expressions of perceptions. Nor
did she have any responsibility to caution anyone to whom she
might pass on such expressions of perceptions that they may not
be true. She even went so far as saying that she had no obligation
to the court, or to the 16 individuals charged, to give any such
caution despite the fact that she was qualified as an expert
witness and testified in court on matters that would lend credibility
to the "expression of perceptions" of the [R.] children
contained in their sworn testimony in court.
39
[97] Dueck says that he was
aware of the Thompson notes and of the fact that the [R.] children
were making "disclosures" to Bunko-Ruys. But he says
that he did not want to know about them before interviewing the
children so that he would get their "disclosures" from
his videotaped interviews of them. I have serious reservations
about this assertion. It was obvious from his conduct of the
videotaped interviews of the [R.] children and by the nature
of his questions of the children, that he had previously received
specific information that he was attempting to elicit from them.
He knew that information came from "disclosures" of
the [R.] children made previously to Marilyn Thompson or Bunko-Ruys
because they were the only ones who were interviewing the children
at that time. He could not have obtained it from any source other
than from the Thompsons or Bunko-Ruys. Even if his assertion
is true, there would be no utility in his not informing himself
of what the children previously said to the Thompsons or to Bunko-Ruys.
In fact, as the investigating officer, he had an obligation to
inform himself of the particulars of those "disclosures"
to assess the consistency or lack of it in the allegations made
by the children.
[98] Dueck held himself out
as an experienced interviewer of child complainants, and said
he had conducted approximately 100 interviews before this case.
He either knew, or should have known, that if the children had
made detailed allegations before the interviews, the circumstances
under which those allegations were obtained may well have contaminated
the information he was about to receive. Surely, as a competent
and experienced police officer with a duty to investigate these
bizarre allegations, he knew that one of his main functions was
to try and determine if in fact these horrible events had taken
place. Trying to determine the credibility of the allegations
was the most critical aspect of the investigation. If they were
true, his witnesses were credible. If they were untrue, his witnesses
were not credible. Another essential aspect of his investigation
was to determine how the children's allegations
40
originated and how they were
made or elicited. This in turn had a significant bearing on whether
the events alleged truly occurred or were partly or completely
comprised of fantasy or fabrications.
[99] The same can be said of
Bunko-Ruys. She was an experienced therapist and held herself
out as having expertise in dealing with sexually abused children.
She testified in court as an expert in this area. She participated
fully with Dueck in the child interviews, taking an active roll
in asking specific questions of the children to elicit information
that appeared to have been given to her previously, either by
the children or by Marilyn Thompson. She also knew, or should
have known, that the detailed "disclosures" of the
children may have been obtained by Marilyn Thompson, who was
not a professional, under circumstances which may have seriously
prejudiced the credibility of "disclosures". She also
knew, or should have known, that the extensive involvement of
Lyle and Marilyn Thompson in this whole "disclosure"
process over a period of several months before the police interviews,
may have seriously contaminated the children and the truthfulness
of any future allegations made by them.
[100] It must be kept in mind
that this was not a case of a young child blurting out to her
mother that her father had inappropriately touched her the week
before. This was a case of repeated interrogations initiated
by a foster parent in an attempt to obtain "disclosures"
of abuse. The fact that the allegations were incredible, bizarre
and named a host of adults with no common connection who acted
in concert to do things that are inconsistent with human experience,
would have alerted a lay person with any common sense to the
necessity of proceeding with extreme caution. An experienced
and competent therapist would also have been so alerted.
[101] It appears from their
evidence and from the circumstances themselves however, that
Dueck and Bunko-Ruys had little or no concern about these matters.
Their
41
goal was to get as many of
these "disclosures" as possible on videotape, not on
investigating, exploring or even considering the veracity or
reliability of them. The videotapes of the police interviews
of the [R.] children formed the basis of the police investigation
and the occurrence report which in turn was relied upon by Miazga.
I will deal with this aspect of the case in due course.
Videotaped Interviews of the
[R.] Children
[102] For over four months,
Dueck sat in the wings, so to speak, waiting from a signal from
Bunko-Ruys that the [R.] children were "ready to be interviewed".
He knew that in the interim, they would be making "disclosures"
to Marilyn Thompson. The videotaped interviews of each of the
[R.] children were conducted in the "soft room" at
the police station. Anatomical dolls and other props were utilized.
The interviews were conducted jointly by Dueck and Bunko-Ruys,
with Dueck taking the lead and Bunko- Ruys following up on his
lead to elicit more "disclosures". Several lengthy
interviews were conducted by Dueck and Bunko-Ruys in October
and November of 1990. [M.R. 1] was interviewed three times
on October 20 and 28, and November 16, 1990. [M.R. 2] was interviewed
three times on October 21 and 28, and November 15, 1990.
[K.R.] was interviewed four times on October 21 and 28,
and November 15 and 29, 1990. [103] Each one of these interviews
was viewed in its entirety in the courtroom
during the trial. Although
it was frustrating and exasperating to have to sit through each
of them, they are likely one of the most convincing pieces of
evidence in support of the plaintiffs' malicious prosecution
cause of action. I made copious notes of what was said and what
was left unsaid. I made detailed notes of the interview techniques
that were utilized and of my perceptions of the conduct and demeanour
of the children and of the interviewers themselves. It would
serve no useful purpose to relate the details of these notes
or to reproduce sections of the transcripts of the videotaped
interviews of the [R.]
42
children that were prepared
months later for the plaintiffs. The general comments I make
apply to all the interviews of each of the [R.] children even
though they apply more to some interviews than to others.
[104] The interviews depict
the [R.] children, particularly [M.R. 1], as thoroughly enjoying
the process. The children had a captive audience comprised of
two gullible adults who hung on every word they uttered, nodding
in unison at each "disclosure". [M.R. 1] often insisted
that he be allowed to demonstrate what he was saying. He drew
diagrams and demonstrated with knives that he had brought with
him. The only time the children's interest in performing for
their gullible interviewers began to wane, was when they began
to get tired. Their interest then turned to requesting treats
or invitations to eat out at a restaurant. The children were
repeatedly lead by their interviewers with questions that suggested
the answers they sought of them. It was obvious, in many instances,
that the responses of the children were "off the cuff"
fabrications to provide details or explanations for their previous
fabrications.
[105] None of the "disclosures"
of the children were gently or even obliquely questioned or challenged
but were accepted at face value. Nor were the children properly
cautioned about the need to tell the truth. In fact, they were
repeatedly told by Dueck that kids do not lie and that he believed
everything they said. They were also told repeatedly by Dueck
that, as a police officer, he would get the adults that did these
things to them and put them in jail, a comment that was welcomed
by the children. Both Dueck and Bunko-Ruys intervened to divert
the children from talking about their own "touching problems"
and encouraged them to talk about the adults who had abused them
and who were responsible for their "touching problems".
On at least one occasion, in an interview of some of the other
children from whom Dueck had obtained "disclosures",
he referred to himself, Bunko-Ruys and the child being interviewed
as part of the "team" that was going to get these perpetrators
of abuse.
43
[106] The conduct and demeanour
of the children during the interviews were in stark contrast
with the reserved conduct and demeanour that is exhibited by
most children when they are being asked questions about potential
sexual abuse. Although I did not observe the conduct or demeanour
of the children when they testified at the preliminary inquiries
or at the trial, I did read all the transcripts which included
not only their testimony and comments, but everything that was
said to them. I have a great deal of difficulty accepting that
these particular children were as traumatized by the court proceedings
as has been made out by the defendants. As I will relate in more
detail later, every concession conceivable was made to accommodate
the "needs" of the children for frequent breaks during
the day and adjournments to another day when they became tired.
The transcripts reveal that the children expressed little fear
or reservation of being required to testify when asked specifically
if they were afraid or uneasy.
[107] I strongly suspect that
if the children involved in the case before me were in fact traumatized,
it was because they were finally confronted by someone who did
not accept their allegations at face value and who had the audacity
to gently challenge these allegations. They had to admit to lying
when confronted with the glaring inconsistencies in their evidence.
They found it difficult and stressful to attempt to maintain
their fabricated allegations. The fact that the testimony of
the children degenerated into a jumble of inconsistencies, not
only in the testimony of one to another, but within each child's
own testimony, was a strong indication that their allegations
were fabrications. As mentioned before, the children were given
numerous breaks, court was often adjourned to another day, and
many other considerations were afforded to the children to minimize
any discomfort, stress or trauma that might accrue to them by
being required to testify. As one defence counsel observed in
one of the proceedings, the length of time it took to complete
the cross-examination was not because it was lengthy, but because
of the numerous and lengthy breaks taken to accommodate the children.
44
[108] It must also be borne
in mind that the Crown, over the objections of the plaintiffs,
had convinced the courts to adopt special measures to minimize
the potential trauma to the children. The public and the media
was excluded from the proceedings when the children testified.
The alleged perpetrators were hidden from the children by being
huddled behind a screen. The judges doffed their gowns before
conducting the proceedings. The children were given a special
room in the judges' chambers and presumably entered and left
the courtroom by the same doorway as was utilized by the judge.
Their wishes for breaks were honoured and the court proceedings
were adjusted to suit their convenience. One cannot fault the
plaintiffs from perceiving that the deck was stacked against
them.
[109] Like other judges of
this court, I have conducted many sexual assault trials involving
child complainants from age 4 to 17. My colleagues and I take
time to develop a rapport with the child and take steps to ensure
that child feels secure in the courtroom. This includes protecting
them from contact with the persons accused by them and precluding
aggressive, intimidating or unfair cross-examination. In most
instances, as in the subject case, the prosecutor has previously
familiarized the children with the courtroom and the court process
and the children have the benefit of a support person and a "soft
room".
[110] In only three cases has
a child in my courtroom been "traumatized" on the witness
stand. In one case it was because a high school class sat in
during testimony given by a young teenager who had been sexually
assaulted by her stepfather. Sending the class on to another
courtroom where another trial was in progress solved the problem.
In another case, it was because the child had fabricated a story
that began to unravel when reliable independent evidence established
that the story could not possibly be true. In the third case,
it was because a parent was attempting to use the child as a
sword in a
45
matrimonial matter by counselling
the child to give false evidence. Fortunately, the child had
the courage to refuse to do so.
[111] I relate this information
to illustrate that the prosecutors deliberately overplayed the
"trauma" concern to focus the criminal court proceedings
on the "needs" of the children rather than on the validity
of the allegations and the guilt or innocence of the plaintiffs.
In some of the proceedings there was likely more testimony adduced
by the Crown about the children's needs than there was about
what the children said was done to them. As well, the "trauma"
concern was successfully relied upon to supposedly explain the
wholesale inconsistencies in the evidence of the children.
[112] There are several reasons
why the videotaped interviews of the [R.] children that I have
described are so critical to the case before me. The first is
that the interviews by and large constitute the entire police
"investigation" conducted by Dueck. His detailed police
report was based primarily on the information he obtained from
these interviews. He carried out virtually no other investigation
respecting the allegations of the children and relied almost
exclusively upon these allegations to found the charges brought
against the plaintiffs. He considered that these allegations
were corroborated in a fashion by the Yelland medical reports
and by the similarity between the allegations of abuse of one
[R.] child to that of the other. It should have been evident
to him, however, that by the time he interviewed the children,
they had made many of their "disclosures" as a group
to Marilyn Thompson and may well have done so in this fashion
to Bunko- Ruys. They also played together every day and had ample
opportunity to discuss their allegations among themselves, particularly
over the extended time involving several weeks when they were
being interviewed.
[113] Dueck and Bunko-Ruys
spent weeks interviewing the children. Dueck spent more weeks
reviewing the videotaped interviews to make notes of them. From
46
these notes, he quite properly
allocated the allegations into two categories. The first identified
the allegations made by each individual [R.] child. The second
identified the allegations made against each individual alleged
perpetrator. This exercise lead to his detailed occurrence report.
Although Dueck is to be commended for such attention to detail,
he seems to be of the view that this exercise in itself constitutes
an investigation. I am not convinced that this is so. The colloquial
"garbage in, garbage out" principle of computer usage
is instructive. If the allegations were fabrications, the categorization
or segregation of those fabrications could not change the nature
of them into credible complaints. They would still be fabrications,
albeit categorized ones.
[114] If Dueck had utilized
the process he adopted to critically assess the credibility or
feasibility of the allegations, that process could truly constitute
part of his investigation. Anyone sufficiently interested and
willing to invest the time in such an exercise, would reject
his contention that the similarity of the children's allegations
corroborated their evidence. The inconsistencies that are readily
discernable by means of such exercise, cannot stand together.
Medical Reports
[115] The medical reports of
Dr. Yelland were relied upon by Dueck and Miazga as corroboration
of the [R.] children's allegations of sexual abuse they made
against the persons to be charged. The professional testimony
of Dr. Yelland and his opinion evidence as an expert was adduced
and relied upon by Miazga at each of the preliminary inquiries
and at the trial. This reliance was, for the most part, unfounded
for the reasons I will outline. It is first necessary however
to review in detail the medical reports that Dr. Yelland gave
to Social Services respecting each of the [R.] children which
I previously referred to in general. These reports were available
to and known by each of the defendants.
47
[116] Dr. Yelland had assessed
the [R.] children in June 1990 within a few days of [M.R. 2]
and [K.R.] being moved out of the Klassen home and into the Thompson
home. He reassessed the children a year later on May 31, 1991,
presumably at the request of Social Services on the suggestion
of Miazga. By this time, Dueck had already made arrangements
for the arrests of the plaintiffs, after being advised by Miazga
to proceed with the charges. Dr. Yelland sets out his findings
and opinions in his reports dated June 1, 1991 respecting [M.R.
2] and [K.R.] and in his report dated June 7, 1991 respecting
[M.R. 1].
[117] In his court testimony,
Dr. Yelland confirmed that complete physical examinations were
done in each case on each of the children and that he was looking
in particular for signs of sexual abuse which often involves
physical abuse. I will refer to the marked difference between
the 1990 report and the 1991 report respecting each child. [118]
In his 1990 report respecting [K.R.], then eight, he states that
she made no disclosures of sexual abuse to him but reported an
itchy bum that she had had for three months. She had only a remnant
of hymen present. He noted that:
These findings are highly compatible
with abuse having occurred in this child in the form of penetration
of the vagina or rectum. The source of this abuse cannot be specified
and may be from a penis, digital penetration, or penetration
with a foreign body.
There is no indication that
[K.R.] disclosed any sexual abuse. [119] In his 1991 report respecting
[K.R.], he states:
48
. . . Vaginal exam in (sic)
abnormal for a remnant of the hymen only being present. There
is marked injection of the perivaginal area. The vaginal diameter
is 1.2 cm. . . . The rectal tone is decreased with fecal staining
being present. . . . and the diameter is over 1 cm on digital
exam. There are no scars in the rectal area, but there are mild
rogous changes present. . . .
[120] In his 1990 report respecting
[M.R. 2], then eight, he states that: . . . There is marked redness
and injection of the labial minora area. She has scarring of
the introitus. The hymen itself is intact and the rectal tone
is normal.
. . . This child has some minor
redness of the labia minora area and scarring of the introitus.
This may by (sic) suggestive of local irritation of the area
secondary to infection or to manual manipulation. At the present
time there is no evidence of penetration of the vagina itself
and all I can say at the present time is that these findings
would be consistent with sexual abuse in the form of fondling.
There is no indication that
[M.R. 2] disclosed any abuse.
[121] In his 1991 report respecting
[M.R. 2], he states that:
. . . The vaginal examination
is abnormal for the hymen being torn in a cresentic (sic) fashion
with a total diameter of 7 mm. At the edge of the right labia
she has cleft-like 2 mm tear at the edge of the hymen and the
labia minora. She has a 3 cm scar in the anterior aspect of the
rectum. The rectal tone is decreased and it is over 1 cm in diameter.
There are increased markings in the rectal margins. There is
also marked redness and agglutination in the labia minor area.
. . .
49
This child has both physical
scars and vaginal and rectal findings that are compatible with
her history of multiple sexual abuse.
[122] In his 1990 report respecting
[M.R. 1], then 10, he states: . . . The rectal area showed soiling
and excoriation present. There was decreased rectal tone. . .
.
This child's rectal findings
are compatible with a history of Sodomy. At the present time
there are no scars or lacerations suggestion (sic) recent abuse.
The decreased rectal tone could be secondary to this cause. .
. .
[123] In his 1991 report respecting
[M.R. 1], he states:
. . . The penis is noncircumcised
(sic) and the scrotum is normal in appearance. There is marked
decrease in rectal tone with soiling present. There is a .5 cm
scar in the anterior edge of the rectum. . . .
. . . He also has decreased
rectal tone and scarring in the rectal area that is compatible
with the history of sexual abuse that he reveals.
[124] Dr. Yelland's practice
as indicated in his reports and his subsequent testimony in the
civil case, was to obtain a "history" of any sexual
abuse from the child brought in for examination and from the
care giver who brought the child in. The 1990 reports demonstrate
that neither [K.R.] nor [M.R. 2] gave a history of sexual abuse.
The 1990 report respecting [M.R. 1] demonstrates otherwise. He,
or Marilyn Thompson, obviously told Dr. Yelland about [M.R. 1]'s
sexual abuse allegations. Somewhat surprisingly, Dr. Yelland
makes unequivocal statements of fact about this alleged abuse
50
that is not demonstrated by
his physical examination. He states:
. . . This child has been extensively
sexually abused in the past. This includes Sodomy. The child
states that his most recent episode occurred in 1988 when grandpa
Klassen put his penis in [M.R. 1]'s bum. There is an extensive
history of Sodomy of this child in the natural parents' home
that involved the father, mother, and boyfriends. . . .
. . . This child does have
a tendency to dress up in women's clothing.
These statements in the report
were not qualified to simply represent what [M.R. 1] or Marilyn
Thompson told him. There were stated as a matter of fact or opinion.
The sole basis for them was [M.R. 1]'s unchallenged and unsubstantiated
abuse allegations. These statements should not have been included
in a supposedly professional report of a physical examination
that is to be relied upon as independent evidence of the person
alleging the abuse.
[125] The 1991 reports of the
physical examinations by Dr. Yelland of the children, then 9
and 11, that I have outlined, demonstrate that there was more
genital evidence of sexual abuse in 1991 than there was in 1990.
This is so particularly for [M.R. 2] in that she no longer had
an intact hymen or good rectal tone. Yet the children had not
had any contact with their alleged perpetrators between the 1990
and 1991 examinations. In the 1991 examinations, Dr. Yelland
found evidence of several scars on the children that in his opinion
had been caused by cuts and burns. He had not noticed these scars
the previous year despite doing a complete physical examination
on each of the children. [126] It is obvious from his 1991 reports
that his observations about the scars were based on the allegations
made to him by the children. It is also obvious from his 1991
reports that the girls were making allegations of horrendous
incidents of past sexual
51
abuse despite the fact they
had made none in 1990. The inescapable conclusion was that [M.R.
1] was continuing to abuse them in the Thompson home. Although
the 1990 reports show that [M.R. 1] had "disclosed"
one incident of abuse by Peter Klassen in 1988, the 1991 reports
show that he had vastly expanded his repertory of abuse incidents
and the number of the perpetrators who had abused him.
[127] In his 1991 medical reports,
Dr. Yelland again makes statements of fact that are based solely
on the unsubstantiated allegations of the children rather than
on his physical examinations. In his report respecting [K.R.]
he states:
. . . These children are victims
or (sic) ritual and sexual abuse. The initial ritual and sexual
abuse had occurred in their natural parents' homes. They were
subsequently sexually abused in the Klassen's foster home prior
to this present placement with the Thompson family.
He goes on to say that all
three children were sexually and ritually abused and that [K.R.]
described in graphic detail some of the ritual abuse that had
occurred from infancy. [K.R.] related being burned and cut with
knives, having knives inserted into her bum and vagina, and ingesting
blood, feces, urine and raw fish. He says that all three children
described in graphic detail the sexual abuse that occurred which
includes oral, vaginal and genital contact. He also observes:
"The older brother, [M.R. 1], has had intercourse with both
girls."
[128] In his report respecting
[M.R. 2], he makes similar observations about the ritual and
sexual abuse suffered by the children at the hands of their birth
parents and Donald White and also at their previous foster home
involving Dale and Anita Klassen and a Diane Klassen [presumably
Diane Kvello]. Again it involved oral, vaginal and anal sex and
cuts and burns. In his report respecting [M.R. 1], Dr. Yelland
makes similar
52
observations and particulars
of the ritual and sexual abuse at the hands of his natural parents
and stepparents, including being deliberately burned by Anita
Klassen. He also notes that [M.R. 1] has had sexual activity
with his younger sisters.
[129] Each of the reports indicates
that he is shown and notes physical scars which he states are
consistent with the allegations of abuse by the children. He
obviously is not told, nor does he appear to inquire, about any
injuries the children may have suffered as a result of falls,
school or home accidents and the like. Presumably, the serious
injuries [K.R.] suffered when [M.R. 1] pushed her under the moving
car would have accounted for many of the scars referred to by
Dr. Yelland in his report.
[130] I make these rather lengthy
observations to illustrate that the reliance on these medical
reports by both Dueck and Miazga as bolstering the credibility
of the children who made these incredible allegations, was not
reasonable. They knew as a fact that [M.R. 1] was having sexual
relations with his two sisters while he lived at the Klassens.
They also knew as a fact that those relations continued while
he lived at the Thompsons. They also knew as a fact that [M.R.
1] was sexually active with many other children. They knew as
a fact that [M.R. 2] and [K.R.] were sexually active with one
another and with others. For the most part, the medical reports
merely confirmed that the children were sexually active. The
findings outlined in the reports also suggested that the children
became more sexually active after they left the Klassens and
were placed together in the Thompson home. They also suggested
that the injuries that had healed were suffered when the children
were young and living with their birth parents.
[131] Yet Dueck and Miazga
deliberately disregarded these facts known to them that strongly
inferred that it was the sexual activity between the children
themselves that provided the so-called independent medical evidence
upon which they relied. Instead, they seized on the incredible
allegations of the children, rather than on the known facts,
53
to infer that the medical evidence
pointed to abuse on the part of the 12 plaintiffs.
[132] It appears that Dr. Yelland
ignored the most feasible source of the abuse as well. In my
respectful view, his involvement in establishing the Saskatoon
Sexual Abuse of Children Protocol and the volume of his practice
that resulted from Social Services referrals, clouded his professional
judgment and blinded him to any other conclusion than one that
was consistent with the wild stories the children were telling
him. As well, his clouded judgment may have impacted on his testimony
in the court proceedings which followed. I will comment on his
involvement and testimony in these proceedings later.
Initial Prosecutorial Advice
Obtained by Dueck from Hinz
[133] Dueck zealously continued
to pursue his case despite the advice he had previously sought
and obtained from Terry Hinz, an experienced Crown prosecutor
at that time. Dueck consulted Hinz likely in early April 1991,
a short time before Miazga became involved in the case as a prosecutor.
In general terms, Dueck left the detailed occurrence report that
he had prepared with Hinz to review and asked him to advise him
of the merits of his case. The occurrence report set out the
bizarre allegations of the [R.] children against the 16 individuals
Dueck proposed to charge with various offences. It also named
other individuals whom Dueck did not intend to charge.
[134] Hinz took the report
home on the weekend to read it over. He advised Dueck that if
the children's allegations were true, he was dealing with a murder
case and needed to investigate the case further to find evidence
that would support such bizarre allegations. Dueck obviously
did not like the advice he received so he ignored it and sought
out another prosecutor who would be more sympathetic to his cause
and point of view. I will have more to say about the Hinz consultation
later.
54
Prosecutorial
Advice Given by Miazga to Dueck
[135] Both Dueck and Miazga
have distanced themselves from the decision to lay the multitude
of charges that were brought against the plaintiffs. Dueck claims
he sought out the advice of the prosecutors because this was
a difficult case and he did not want to lay charges without advice.
He claims he was advised by Miazga as to what charges should
be laid before he swore the informations that set out the charges.
Miazga claims that although he reviewed the file and Dueck's
police report, it was Dueck who decided who and what to charge.
Miazga told Dueck to go ahead with the charges if he "believed
the children".
[136] I find this advice somewhat
puzzling as it fails to address a material element of what is
required before a police officer can lawfully proceed to lay
an indictable criminal charge. The charges laid in this case
were indictable criminal charges. It is trite law that charges
respecting indictable criminal offences cannot lawfully be laid
unless the person who lays them has reasonable grounds to believe
that the individuals charged have committed the indictable offences
charged. See s. 504 of the Criminal Code of Canada, R.S.C. 1985,
c. C-46, and the wording of the form of an information set out
in Form 2 of s. 849. Charges are laid by means of swearing an
information in Form 2. This involves not only the subjective
element of an honest and personal belief, but also the objective
element of reasonable grounds for the holding of that belief.
Accordingly, simply holding the belief is not sufficient to justify
the laying of the information. There must be reasonable grounds
for that belief.
[137] I realize that an experienced
prosecutor like Miazga would not overlook such a material requirement
of advising an investigating officer respecting the laying of
charges that pertain to indictable criminal offences. But I can
find no evidence that Miazga ever considered this issue or cautioned
Dueck about it. Surely in the
55
circumstances of this bizarre
and convoluted case that implicated at least 16 individuals,
those involved in pursuing the case would have made an assessment
of not only their respective beliefs but also of the grounds
on which those beliefs could be reasonably founded. It may have
been assumed that reasonable grounds existed, but considering
the case in perspective as I have previously outlined, the apparent
lack of reasonable grounds should have been seriously questioned,
discussed and addressed, particularly by Dueck and Miazga.
[138] It was at this juncture
of the case that the considerable quantity of exculpatory evidence
should have been considered to determine what impact, if any,
it had on any reasonable grounds that could be relied upon. The
determination of whether reasonable grounds existed could not
be determined without a consideration of the exculpatory evidence
as well as the inculpatory evidence. By way of example, there
were the protestations of innocence by numerous individuals,
many in the course of voluntary police interviews granted without
the benefit of legal counsel. As well, the credibility of the
allegations made by the [R.] children were bizarre and most unusual
and by their very nature were extremely suspect. The credibility
of the allegations and of the [R.] children themselves was the
most critical issue of the case. The police report was comprised
solely of these allegations. They alone were what was relied
upon to lay the proposed charges against the 16 individuals who
had been singled out, and then to prosecute them on those charges.
It was known even then that the [R.] children were not truthworthy.
[139] It was also at this juncture,
in the unusual circumstances of this case and the potential for
disaster if the allegations were false, that the potential frailties
in the Crown's case should have been at least summarily considered.
[140] Before advising Dueck,
Miazga did not avail himself of the opportunity to view any portions
of the videotaped interviews of the children to observe their
56
demeanour or to assess the
potential strengths or weaknesses of their allegations. Nor did
he appear to consider the manner in which such critical allegations
were "disclosed" to determine whether the evidence
to be given by the children might have been contaminated by the
significant involvement of individuals who were not professionals
in obtaining those "disclosures". Again, this was not
a simple and seemingly credible case of a child relating an inappropriate
sexual touching or an assault by a parent or relative. I have
great difficulty accepting that Miazga would have advised Dueck
to proceed against so many people on so many serious allegations
without even a preliminary consideration of these issues and
a cursory look at the children on whom he would almost exclusively
have to rely later at trial.
[141] Miazga obviously intended
to eventually view the videotaped interviews of the children
and to personally interview them prior to the preliminary inquiry.
But in the unique circumstances of this case, Miazga could not
responsibly or reliably determine the merits of the case before
he had done one or the other. To advise Dueck to lay charges
without doing so was not only irresponsible, but is a strong
indication of malice. This was not a case where a snap decision
had to be made because of urgent circumstances. [142] The charges
had been contemplated for a year after the initial "disclosures"
were made. Dueck had deliberately deferred laying charges to
give him time to obtain as many "disclosures" as possible
from the children on which to base his proposed charges. There
were no concerns about the immediate arrests of the plaintiffs.
Dueck was not planning on arresting them until mid July when
their children would be apprehended as well. Deferring the charges
for a few weeks until these matters could be properly considered
would not have jeopardized the case and would likely have prevented
the disaster that followed.
[143] It appears that Miazga
did not really care whether there was a case worthy
57
of prosecution or not. His
attitude, and the rationale underpinning his advice, appeared
to be that the children had uttered these allegations, Dueck
had said he believed the children, so criminal charges should
follow. If it turned out that the charges had no merit, let the
courts sort the mess out later. But it was at this juncture,
in the unusual circumstances of this case and the evident potential
for disaster if the allegations were false, that the frailties
in the Crown's case should have been seriously reviewed and considered.
What should also have been considered is what impact the charges
and the criminal proceedings that would follow, would have on
the welfare of the children who would necessarily be drawn into
it as crucial witnesses. There is no evidence that this even
entered the minds of any of those involved in the prosecution
despite their subsequent protestations that the children were
being extremely traumatized and harmed by having to testify in
court.
[144] Dueck and Miazga were
aware of the Saskatoon Sexual Abuse of Children Protocol I will
describe later. Both had participated in meetings with Social
Services personnel and in particular with Bunko-Ruys. The exhortation
in the Protocol to believe the allegations of children, undoubtedly
had a bearing on the advice Miazga gave Dueck respecting the
feasibility of the charges.
[145] I jump ahead to relate
some significant events that subsequently took place in Red Deer
respecting the arrests of the plaintiffs who lived in Red Deer
and the apprehension of their children.
The Involvement
of Social Services in Red Deer
[146] Sheila Verwey testified
at the trial. She is a social worker with Alberta Family Services
in Red Deer and has been involved for several years in child
welfare investigations. She has had considerable experience in
interviewing sexual assault
58
perpetrators as well as sexual
assault victims and has taken several courses in this regard.
[147] Her supervisor was contacted
on April 28, 1991 by a social worker with Social Services in
Saskatoon. Alberta Family Services was asked to assist Saskatchewan
Social Services respecting a police investigation. In particular
it was asked to apprehend the eight children of three groups
of parents who lived in Red Deer and who would be arrested in
July for sexually assaulting children. Verwey was one of three
workers assigned to the case. Alberta Family Services was not
given much detail about the sexual and physical assaults alleged
against the parents of these children. But the allegations included
sexual and physical assaults against their former foster children,
against other children and against their own children. Alberta
Social Services was asked to take no immediate action but to
be ready to get involved when the arrests were made.
[148] By May 27, 1991, Alberta
Family Services personnel had heard nothing further from Saskatchewan
Social Services personnel so the supervisor called Saskatoon
to see what was happening. Dueck returned the call and left a
phone message on June 21, 1991 to advise that he was coming to
Red Deer on June 24, 1991 to interrogate all the Klassens who
lived there. Dueck and his partner James Walker, met at the police
station in Red Deer with Verwey and the other Alberta Family
Services social workers assigned to the case the day before he
interviewed the plaintiffs. Verwey observed that Dueck appeared
to be confident of what he was doing and also appeared to be
excited and enthusiastic. He felt that he had an important case
and that he was in the middle of a big investigation.
[149] He gave the Alberta Family
Service social workers some background information to the effect
that foster children had made allegations of ritualistic and
satanic sexual abuse involving the individuals, including the
Klassens families and their former foster children and their
own children. Dueck stated that the eight Klassen
59
children were also victims
of the abuse and this was why he wanted them apprehended, examined
medically for indications of abuse and then interviewed for "disclosures".
The social workers were uneasy about the circumstances that Dueck
was relating to them and they asked him a number of questions.
Presumably to allay their concerns, Dueck gave them a copy of
his occurrence report to review.
[150] The social workers went
back to their office and discussed the matter for some time.
They were unsure of their role as they were uncomfortable with
what they had learned in the meeting and did not come to the
same conclusions about the case as did Dueck. Dueck used the
term "ritualistic abuse" to describe the events which,
to Verwey, meant organized events that followed the same pattern.
The Alberta Family Services social workers were not sure that
they had been given enough information to justify the apprehension
of the children. Verwey testified that part of the role of a
social worker is to be open-minded and to screen information
respecting alleged abuse even though proof of abuse is not expected.
The Alberta Family Service social workers were not saying that
what the foster children in Saskatoon were alleging was completely
impossible, but they did not come to the same conclusions as
did Dueck on the information he provided to them.
[151] The Alberta Family Services
social workers acknowledged that their role was not to pass judgment
on Dueck's investigation. But they were having trouble evaluating
the bizarre allegations of the children and even after considering
his occurrence report, still could not come to the same conclusions
about their allegations as had Dueck. Verwey discussed her concerns
with Cst. Richard Taylor, one of the Red Deer police officers
whose assistance Dueck had enlisted, and asked him whether the
Alberta Family Services had to agree that the sexual assaults
alleged had in fact occurred. [152] Verwey and Taylor concluded
that this was not a question that had to be
60
addressed by Alberta Family
Services. If arrest warrants were sent from Saskatchewan, Alberta
Family Services had to carry out its support role of Saskatchewan
Social Services that was not asking Alberta Family Services for
its input. I pause to observe that Taylor was in effect telling
Verwey that she need not be concerned about lack of honest belief
or reasonable grounds if Dueck could get a warrant from Saskatchewan.
It was Dueck's problem whether or not there were grounds, not
her problem. Taylor said that it would be inappropriate for Saskatchewan
Social Services to ask if Alberta Family Services agreed with
the case. The role of Alberta Family Services was to apprehend
the eight Klassen children, interview them about potential abuse
and have them examined medically for indications of abuse. Verwey
read the report again at home but it did not make her feel any
less uncomfortable. The material did not answer her questions.
She was distressed about the case and about the children she
would be required to apprehend. I realize that Verwey's evidence
about what Taylor said would be hearsay evidence if the truth
of what he said was relied upon by the plaintiffs. They rely
only on the fact it was said. This is similar to the evidence
adduced by the defendants that I will outline later as to what
the preliminary inquiry judge said to the prosecutors.
[153] Dueck advised Verwey
that he would get the warrants that would be required to effect
the arrests and that he would be back very shortly to effect
the arrests. He wanted the Klassen children to be apprehended
and interviewed concurrently with the arrests of their parents.
Apprehension orders were then obtained by Alberta Family Services
from an Alberta judge. The orders were sought and obtained not
on the basis of the alleged abuse of the children, but on the
basis that the parents were being arrested and the children would
need guardians.
[154] Verwey apprehended the
three children of Richard and Kari Klassen: K.K, eight, K.K.,
two and B.K., six months, from their home and took them into
foster care on July 10, 1991, the date the other children were
apprehended and the arrests of the
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