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Judge George
Baynton's historic judgment, page 3
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plaintiffs effected. Verwey
testified that Richard and Kari Klassen were cooperative but
shocked, angered and full of disbelief at what was happening.
She observed that their three children were the focus of their
home as evidenced by drawings on the fridge and the walls and
the presence of toys. Kari Klassen was crying and concerned about
giving instructions to the social workers for the care of her
six-month-old baby. She sent toys and other things along with
the child. Richard and Kari Klassen did not want their children
to see them being taken away by the police. Other social workers
apprehended the three children of Dale and Anita Klassen. The
two children of John and Myrna Klassen were not apprehended or
interviewed because they were holidaying with friends.
[155] The six Klassen children
who were apprehended were subsequently interviewed on videotape
and sent for medical examinations by doctors who were advised
to look for signs of sexual abuse. The examinations revealed
no indications of sexual abuse. Nor did the interviews of the
children indicate or suggest that they had been sexually abused
or that they had any knowledge of the sexual abuse of others.
Alberta Family Services had no concerns about the potential sexual
or physical abuse of the children nor any other protection concerns.
The children were ultimately unconditionally returned to their
parents once the parents had been released in Saskatoon from
custody.
[156] Because Alberta Family
Services did not have any protection concerns respecting the
two children of John and Myrna Klassen who were not available
to them, they did not apply for protection orders respecting
them. All this information, including the results of the examinations
and interviews, were communicated back to Saskatchewan with the
views of Alberta Family Services personnel that the children
had not been sexually or physically abused. Verwey had been advised
that Dueck was in charge of the Saskatchewan Social Services
investigation. Yet he never advised Alberta Family Services that
some of the same children that he was asking them to apprehend,
had been medically examined the previous year for potential sexual
or physical abuse
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with no indications being found.
The documents tendered at trial establish that the two oldest
children of Dale and Anita Klassen, T.K. and J.K., had been medically
examined by Dr. Yelland for potential sexual abuse at the insistence
of Saskatchewan Social Services with no indication of abuse being
found. This is just another indication of Dueck's pre-judgment
of the case and his desperate attempts to find some reliable
evidence of abuse.
[157] Prior to being contacted
by Dueck, Alberta Family Services had received no complaints
respecting any of the Klassens or their children. In the two
months that followed the apprehension, they received some malicious
calls. After a preliminary investigation, they decided there
was nothing to investigate further. Alberta Family Services has
had no further contact by Dueck since July 10, 1991 nor has any
Saskatchewan prosecutor ever contacted them about the case. To
Verwey's knowledge, no one has ever asked for the videotapes
of the children's interviews. Nor has anyone asked for a report
or letter summarizing the outcome of the investigation. Again,
this is an example of the mind-set of those involved in the investigation.
This is indicative of how the defendants consistently ignored
and suppressed any exculpatory evidence despite finding no support
for the allegations they so diligently pursued.
[158] Verwey testified that
Alberta Family Services has subscribed to a protocol similar
to the Saskatoon Sexual Abuse of Children Protocol. One of its
guidelines is that one must assume that child complainants are
telling the truth. She testified that the protocol came about
as a response to a generally held attitude prior to the 1980s.
The attitude was that nice people do not assault children so
that when children report sexual abuse they must be lying about
it. The Alberta protocol was put in place to address the fact
that sexual abuse does happen to children. She says that the
protocol is a guiding principle, not a blanket statement. Children
do not usually fabricate allegations out of the blue so their
allegations must be taken seriously. But it is essential to then
proceed with
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an investigation to see what
the allegations are all about. She says that the procedure followed
is that after the initial complaint, the police are contacted,
all the potential witnesses are interviewed and the dynamics
of the family, including its strengths and weaknesses, are considered.
[159] In cross-examination,
Verwey acknowledged that there was no note on the screening form
(the intake memo form used by Alberta Family Services) that the
Klassen children were victims of abuse as well as the other children
involved. But she understood, from the information given to them
by Dueck, that this was the assertion that had been made to them.
She acknowledged that even though the children's allegations
of abuse were very strange and unusual, and even though there
were a large number of people implicated, the allegations could
be true. But she said their concern was not that such things
could not happen. Rather, their concern was that Dueck was coming
to the conclusions he did based on the information he had. She
assumed that he likely had other information to support his conclusions,
but she was still of the view that the assessment of the child
complainants was of critical importance.
[160] I found Verwey to be
an honest and courageous witness. She is obviously an objective,
competent and experienced social worker.
[161] Verwey's assessment of
the underlying purpose and objective of a child sexual assault
protocol, one that acknowledges the necessity for a proper investigation
of sexual assault allegations of children, comports with common
sense and is in accordance with what has been the law of free
and democratic countries for years. No allegation from anyone,
be they an adult or a child, can be taken blindly at face value
and then acted upon without question. Doing so risks disastrous
consequences including the wrongful conviction of innocent individuals.
This case is a prime example of what happens when gullible child
care workers, police officers and prosecutors ignore time-tested
legal
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principles and throw common
sense to the wind. The plaintiffs were wrongfully and needlessly
put at risk for lengthy terms of imprisonment up to a maximum
of 10 years on each offence charged against them. They faced
that risk for one and a half years until all the charges were
stayed by the Crown. In the decade since the stays, they have
lived under a cloud of suspicion. It is no credit to any of the
defendants that the plaintiffs did not have to endure the jail
terms for which they were put at risk.
[162] I move back to relate
Taylor's evidence. He testified that he received a call from
Dueck in June 1991 asking for assistance. Taylor's intended role
was to locate the members of the Klassen family that Dueck proposed
to charge so that Dueck could interview them at the police station.
He was given a "Reader's Digest version" of the case
which he understood involved fourteen children who had made "disclosures"
of abuse. I pause to note that the 14 children had to have included
the Klassen children in Red Deer because at that time there were
at most the three [R.] children and four others whose abuse allegations
were being relied upon to found charges.
[163] Taylor says he was advised
by Dueck that after the Klassen adults had been arrested, the
children in their homes would be apprehended for interviews.
He said that Alberta Family Services would be responsible for
interviewing the children. Dueck came to Red Deer on June 24,
1991 and the interviews of the Klassen adults took place on June
25, 1991. Taylor was not asked to assist in the interviews. Richard
and Kari Klassen went voluntarily to the police station for their
interviews as did Dale and Anita Klassen. Dueck later advised
Taylor that none of the Klassens had made any inculpatory statements
and that they had refused to answer any questions on the advice
of counsel. The videotaped interviews clearly establish that
this is false.
[164] Dueck called Taylor on
July 9, 1991 to let him know that the charges had been laid and
to request Taylor to make arrangements for the arrests of the
Klassens on
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July 10, 1991. Taylor was aware
that Alberta Family Services would be apprehending the children.
It is significant that he declined the request of Alberta Family
Services to give evidence on their court application for the
apprehension warrants respecting the Klassen children because
he had no evidence to give that the children were at risk. The
six Klassen adults were arrested on July 10, 1991 and at 7:00
p.m. on that date, a Justice of the Peace came to the remand
centre and remanded them all for six days. After that period
they were transported to Saskatchewan and spent another night
in custody there. Taylor confirmed that all the medical examinations
of the children who had been apprehended were negative for indications
of abuse and that no disclosures had been made by them during
their interviews.
[165] Taylor confirmed the
importance of keeping a notebook and of updating the central
registry file as soon as possible. He says that Dale Klassen
was at the police station for over an hour when he was interviewed
by Dueck. This tends to confirm the testimony of Dale Klassen
that the short videotaped interview of him that was viewed in
court, represented only a small segment of his full interview
with Dueck. I will comment on this later.
[166] The evidence of Verwey
and Taylor strongly suggests that neither Dueck nor Saskatchewan
Social Services had any concerns about the safety of the eight
Klassen children. If they had such concerns, surely they would
have apprehended them in May or June when they first contacted
Alberta Family Services rather than waiting until mid July to
do so. This is just another indication that Dueck's only concern
about the eight Klassen children was the possibility that he
could get "disclosures" from them against their parents
to bolster his non-existent case. Long before he interviewed
the adult plaintiffs he had made plans to lay charges and obtain
arrest warrants against them. It is obvious that he did not go
to Red Deer to investigate the allegations against them or to
try to determine the truthfulness of them. His only purpose was
to try to get confessions from
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the plaintiffs to strengthen
his case.
[167] Taylor testified that
he has no note of, and cannot remember, any discussion with Verwey
or Alberta Family Services personnel respecting concerns about
the validity of the charges. Where her testimony differs from
Taylor's, I accept Verwey's. She was concentrating on the nature
of the abuse allegations and whether they constituted grounds
for the apprehension orders that Dueck was seeking. Taylor was
concentrating on the mechanics of the arrests, not on the substance
or strength of Dueck's case. In Taylor's view, such matters were
no business of Alberta Family Services.
[168] He left child apprehension
issues up to Alberta Family Services. He never considered questioning
the charges and likely did not notice or place any importance
on the reservations that were held by Verwey or other Alberta
Family Services personnel. Verwey was very specific about their
concerns and was able to give the most reliable account of those
concerns.
[169] It is significant to
note that even before the arrests were made, Dueck's case had
been seriously questioned by two very competent and unrelated
individuals. The first was by Hinz, an experienced prosecutor.
The second was by Verwey, an experienced social worker whose
concerns were also shared by her fellow social workers. It is
obvious that Dueck gave no consideration to these concerns expressed
to him by these professional individuals. The fact he chose to
ignore the warning flags that these concerns should have been
to him, indicates that he had tainted tunnel vision and a closed
mind about his case.
Miazga's Involvement
in Dueck's Investigation
[170] Miazga's best estimate
of his first meeting with Dueck is in late April or in
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early May of 1991. The evidence
of Verwey establishes that Saskatchewan Social Services contacted
Alberta Family Services on April 28, 1991 and Dueck himself called
on June 21, 1991. It is more likely than not that Miazga first
met with Dueck in April 1991 shortly after Dueck had met with
Hinz. It is not clear whether Dueck contacted Alberta Family
Services on his own initiative or on the suggestion of Miazga.
Due to the professed inability of either of them to recall much
in the way of detail respecting their meetings, what they discussed,
what they determined to do or what they even thought about the
proposed charges, there is little evidence before me to address
these questions.
[171] But it is known that
after receiving advice from Miazga, Dueck did a few things that
were suggested to him. Up until then, his investigation consisted
solely of eliciting and recording the "disclosures"
of the children. At the suggestion of Miazga, he obtained a couple
of search warrants respecting the related [R.], [R.] and White
potential charges. It appears from the evidence that he made
arrangements to interview the plaintiffs in Saskatoon and Red
Deer because of Miazga's suggestion to do so. It would also appear
from the evidence that he made arrangements to obtain the June
1991 Yelland medical reports respecting the [R.] children because
of Miazga's suggestion to do so.
[172] I mention these matters
to illustrate that Miazga had gotten quite involved in the case
several weeks before the charges were laid and the plaintiffs
were arrested. He does not deny this because he has no notes
of his dealings with Dueck and only a poor recollection of them.
He does remember that Dueck never told him of the previous consultation
with Hinz for his opinion of the case. Nor did Miazga become
aware until after the prosecution had long been concluded of
what Hinz had advised Dueck. Dueck's withholding of this significant
event from Miazga is a strong indication of malice. But despite
the lack of evidence from Dueck and Miazga on what they considered
and discussed among themselves about the case, surely Miazga
would not have proceeded to
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prosecute the case without
more than the incredible allegations of the children. Surely
he would have made inquiries of Dueck to learn what had come
out of Dueck's investigation of the matters that he had previously
suggested to him.
[173] In so doing, unless Dueck
deliberately withheld all this information, Miazga would have
known of the disappointment Dueck suffered in failing to obtain
any confessions from the plaintiffs, in failing to obtain any
"disclosures" from the apprehended children in Red
Deer, in failing to obtain any medical reports with physical
findings consistent with the sexual or physical abuse of [K.R.]
or [M.R. 2] by any known person except [M.R. 1] and in failing
to recover any useful evidence from the searches that were conducted
pursuant to the search warrants.
[174] Miazga would also have
known of the strange turn of events evidenced by the Yelland
medical reports that set out more indications of sexual abuse
of [M.R. 2] and [K.R.] than had been reported in the Yelland
medical reports the year before. Miazga and Dueck knew that none
of the plaintiffs or any others who had been charged, had access
to the [R.] children during the time interval between the physical
examinations of the [R.] children in 1990 and 1991. Miazga would
likely have known, or should have known, from his discussions
with Dueck or from a review of the police file, that Schindel
had previously assessed [M.R. 1]'s "disclosures" as
being vindictive toward Anita Klassen and projecting previous
abuse suffered in his birth home to the Klassen family. Miazga
would also likely have known, or should have known, from his
discussions with Dueck or from viewing the police interviews
of the persons charged, that Kari Klassen had recently made a
similar perceptive observation even though she could not have
known that Schindel had made a like assessment previously. She
had made this observation to Dueck as a possible explanation
for the allegations of abuse made against the Klassens in response
to his unrelenting demands that she provide him with an explanation
as to why the children would make such allegations.
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[175] As Dueck did not tell
Miazga about the negative reception he received from Hinz, he
likely did not tell him either about the negative reception he
got from Alberta Family Services. But it is astounding that Dueck
and Miazga never reconsidered the merits of their case when all
Miazga's investigative suggestions turned up negative. The little
bit of investigation Dueck did actually weakened, rather than
strengthened, their case. As well, the number of Dueck's prospective
complainant witnesses with the potential of corroborating the
wild allegations of the [R.] children had just dropped from fourteen
to eight.
[176] I have a concern about
the lack of evidence on another issue. Dueck, Taylor or Miazga
never gave any explanation as to why three couples, who were
presumed innocent until proven guilty according to law, were
kept locked up for a full week before being released on bail.
These three couples were obviously not considered a threat to
society nor to their children because no steps had been taken
to arrest them or apprehend their children for a year and a half
after they were implicated in the so-called abuse "disclosures".
None had any criminal record except for Richard Klassen who had
a past record of unrelated offences that went back to his youth.
Nor was any explanation given for the stringent non-contact provisions
imposed on the plaintiffs as a condition of their release from
custody. In fairness to Miazga, he did consent to an amendment
of the noncontact provisions so that the families could spend
Christmas together. But the way they were held in remand and
were treated in remand in Saskatoon, are indications of malice.
Police Interviews
of the Plaintiffs
[177] I step back to comment
in more detail on the police interviews of the plaintiffs I referred
to earlier. Four of the six plaintiffs who lived in Red Deer,
Dale and Anita Klassen and Richard and Kari Klassen, agreed to
be interviewed at the police
70
station there without the benefit
of legal counsel. Walker, Dueck's assistant, interviewed Kari
Klassen. Dueck interviewed all the others. Four of the six plaintiffs
who lived in Saskatoon, Dennis and Diane Kvello and their two
children, S.K. and S.K., also agreed to be interviewed at the
police station there without the benefit of legal counsel. In
the course of the interviews of the adult Kvellos, Dueck obtained
their consent to interview their children about the offences
alleged against those children. At the time of the subsequent
arrests, Dueck interviewed the male Kvello child and as well
either interviewed the female Kvello child or made arrangements
for the interview of her. Although these two Kvello children
had also been charged with sexual offences alleged against them,
they were not asked questions about those allegations. Instead,
they were aggressively questioned about being abused by their
parents.
[178] It is significant that
Dueck made arrangements to interview the plaintiffs only after
being prompted to do so by Miazga. The interviews were scheduled
less than a month before the plaintiffs were arrested. Long before
Dueck made arrangements to interview the plaintiffs, he had made
up his mind to charge them. This is evident from the evidence
as a whole and from the statements he made at that time to others,
including Alberta Family Services personnel and to the plaintiffs
whom he interviewed.
[179] Quite understandably,
Dueck's objective in conducting videotaped interviews of those
he planned to charge, was to obtain confessions from them. But
again, it is significant that he did not question or have the
two children questioned for the purposes of obtaining a confession
from them. Instead, they were questioned in an attempt to obtain
"disclosures" that they had been sexually abused by
their parents. Had such "disclosures" been obtained,
it is apparent that Dueck and Miazga would not have proceeded
with the young offender charges but would have arranged with
Social Services to apprehend them, and call them as witnesses
against their parents on new charges to be added to those already
proposed. The contents of the Matkowski memo introduced into
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evidence inferred as much.
[180] It was obvious from the
nature of Dueck's "investigation" and from his timing
and conduct of the videotaped interviews of the plaintiffs, that
he had no genuine interest in hearing anything that they might
say to suggest that the potential charges he had previously determined
to lay were unfounded. The evidence establishes that he ignored
all other exculpatory evidence even though it was available to
him. The evidence also strongly suggests that he would continue
to ignore any such evidence that might later become available
to him. He had committed himself to pursue the charges and he
was not prepared to risk his reputation or jeopardize the case
he had immersed himself in for the past year and a half by backing
off at this juncture. His questions of the plaintiffs were not
designed to elicit their responses to specific allegations of
abuse. They could not do so because Dueck would not give them
anything specific to respond to. His questions consisted primarily
of bullying them with a question they were incapable of responding
to, namely why the children would lie about being abused by them.
[181] The fact that he was
more interested in pursuing the charges than learning the truth
of the allegations is also demonstrated by his involvement with
Alberta Family Services in Red Deer. He arranged for them to
apprehend all the biological children of the plaintiffs who lived
there with the objective of obtaining "disclosures"
of sexual abuse and medical examinations that indicated abuse.
Although he told others that the children had been sexually abused
by their parents, he knew that they were not apprehended on this
basis because there were no grounds to do so. Interviews and
examinations of the children had previously indicated that they
had not been abused, a result that was inconsistent with the
wild allegations of some of the [R.] children. The only basis
for the apprehension of the children in Red Deer was that they
would have no one to care for them once their parents were arrested
as planned.
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[182] As he had done with the
Kvello children, the interviews of the Klassen children took
place on the very day that the plaintiffs were arrested on the
charges that had been laid a few days before. Even if these child
interviews had resulted in "disclosures", they could
not have been taken into account by either Dueck or Miazga in
determining whether there were reasonable and probable grounds
to lay the charges. This was so because Dueck had already laid
the charges on the advice of Miazga several days beforehand.
In like fashion, even if the adult interviews had resulted in
confessions, they could not have been taken into account in determining
the issue of whether reasonable and probable grounds existed
because Dueck and Miazga had already made up their minds to lay
the charges and I am satisfied that nothing the adults said could
have swayed them from their objective to pursue them.
[183] During the trial, counsel
for Dueck pointed out that I had stated in my nonsuit judgment
that "many" of the plaintiffs who were interviewed
by the police had offered to take a polygraph test. He is correct
that this term is somewhat misleading and should be clarified.
To provide the context in which this statement was made I reproduce
the two relevant paragraphs from the non-suit judgment:
[52] The mental and emotional
state of each of the [R.] children, particularly [M.R. 1], was
abnormal to the extent that [M.R. 1], and to a lesser degree,
[M.R. 2], required almost constant supervision, not only at school
but elsewhere including their home. The children made allegations
against numerous perpetrators and although most of these allegations
were not pursued by Dueck, he caused charges to be laid against
some 16 individuals, two of whom were themselves children of
one of the couples who were also charged. The proceedings against
these two children proceeded under the then Young Offenders Act,
R.S.C. 1985, c. Y-1. Many of the plaintiffs who were charged
volunteered to be interviewed without the benefit of counsel.
All who were interviewed denied they had sexually abused the
73
children and many offered to
take a polygraph test in an attempt to establish their innocence.
[53] For many of the reasons
enunciated by Klebuc J. in Klein v. Seiferling, supra, that I
have previously outlined, I conclude that a reasonable person
might consider this evidence to constitute a warning flag that
called for further investigation and an attempt to obtain evidence
to support or discredit the bizarre allegations of the [R.] children.
The evidence indicates that the police investigation consisted
almost entirely of interviews of the children to obtain and document
their disclosures and interviews of the plaintiffs in an attempt
to obtain their confessions. Lacking a proper or at least a more
thorough investigation of the horrendous and serious allegations
made in this case against so many different individuals, I am
satisfied that a reasonable person could conclude, in these circumstances,
that the plaintiffs were probably not guilty of the host of serious
offences alleged against them.
[184] I will elaborate on my
previous reference to the polygraph test. The majority of the
plaintiffs who did offer to take a polygraph test did so in response
to the suggestion made by Dueck and his assistant that they do
so. The offer of at least one of the plaintiffs was conditional
on the reliability of the polygraph and on the confirmation of
his legal counsel. But Dueck, becoming frustrated with the plaintiffs'
repeated denials of the sexual assault allegations, withdrew
his offer to make the polygraph test available to the plaintiffs.
It appeared to me from viewing the videotapes, that the plaintiffs
had called his bluff and he did not want to run the risk that
the polygraph tests might prove to be in the plaintiffs' favour.
Not all the plaintiffs who voluntarily submitted to an interview
by Dueck or his assistant were given the option of taking a polygraph
test. Having clarified this issue, I move on to make some additional
observations about the police interviews conducted by Dueck.
[185] Dueck's lengthy grilling
of the plaintiffs, particularly Anita Klassen and
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Diane Kvello, was far more
aggressive, intimidating and humiliating than was required in
the circumstances. It is one thing to grill a suspect and to
use deception and other disgusting aspects of subterfuge that
are at times a necessary aspect of police investigations when
dealing with sophisticated, case hardened or street-smart criminals.
But the pressure he brought to bear on these two female plaintiffs
in particular, was reprehensible. To expedite the description
of the interviews, I will comment on the things in common about
both interviews even though the interviews were conducted separately
and in different provinces.
[186] Both of the former foster
mothers unconditionally volunteered to be interviewed by Dueck
on videotape at the police station without the benefit of counsel.
Anita Klassen's interview took place in Red Deer. Diane Kvello's
interview took place in Saskatoon. Both consented to answer Dueck's
questions without contacting a lawyer even though they were cautioned
by Dueck at the outset of the interview about their rights to
remain silent and about their rights to legal counsel. They were
also told that anything they said could be used in evidence against
them. Each of them was cooperative and each gave the appearance
of having nothing to hide but simply wanting to get to the bottom
of what was being alleged against them. Dueck gave them very
few details of the allegations so they were never advised of
what the children were saying they did to them. Instead, Dueck
kept on telling them that the children who had been taken out
of their respective foster homes had been in therapy and had
made multiple "disclosures" of abuse against them.
[187] Dueck told the two female
plaintiffs that children never lie about these things and that
other children, who had also said they had been abused by them,
were corroborating one another's evidence. He kept on asking
the plaintiffs how they could explain why young children would
make such allegations against them if they were not true. Understandably,
the poor women could not provide him with a satisfactory answer
75
other than to deny that they
had ever done anything to any children, including the foster
children that had been taken from their respective foster homes.
Neither of the women gave any indication throughout that she
was being untruthful in her answers nor was holding back any
information.
[188] What was particularly
reprehensible and uncalled for was that Dueck probed each of
them about the personal details of sexual abuse they had experienced
as young girls, telling them that those who are sexually abused
become sexual abusers. As will be noted later in this judgment,
this was a proposition that was advanced throughout the subsequent
criminal proceedings by the testimony of the various child care
givers in an attempt to justify the sexually abusive conduct
of the [R.] children. Rather than telling Dueck to mind his own
business as they had every right to do, the two women cooperated
further with him and provided him with the details he sought
of the sexual abuse they had previously suffered. It is difficult
to conceive how the details of the sexual abuse that these two
women had suffered years before had any relevance to Dueck's
police investigation. His purpose in pursuing this line of question
was to put these women under even more emotional stress by getting
them to relive the traumatic experiences they had attempted to
put behind them.
[189] Dueck succeeded in putting
so much stress on Anita Klassen that she burst into tears and
sobbed uncontrollably. When he kept bullying her she tried to
run out of the room. He kept calling her back and when she returned,
she curled up into a fetal position, still sobbing. In desperation,
she finally requested to see a lawyer. Dueck ignored her repeated
requests and kept on questioning her and demanding that she give
him an explanation as to why these children would make such allegations
if they were not true. She was so upset by the time he had finished
with her, that he drove her to the sexual assault centre. It
was obvious that she was in no condition to walk home. She was
later admitted to the psychiatric ward in the hospital.
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[190] Diane Kvello said that
after the videotaped interview was concluded, Dueck told her
that if she did not plead guilty, he would charge her children.
Although I do not base any of my conclusions on this evidence,
it is likely true.
[191] Dueck's grilling of Richard
Klassen and Dennis Kvello was just about as brutal. He also tried
to get them to admit that they had been sexually abused as children.
Fortunately he was not successful in putting them under the same
degree of emotional pressure he had brought to bear on Anita
Klassen and Diane Kvello. It appears that only a part of the
interview of Dale Klassen was videotaped so a comparison cannot
be made as to what kind of pressure was exerted by Dueck on him.
Except for Richard Klassen, who had a criminal record as a youth
for unrelated offences, none of the other plaintiffs had police
records and were just normal ordinary people trying to make a
living like other normal ordinary people.
[192] Dale Klassen claims that
Dueck interviewed him for twenty to thirty minutes during which
time he kept on telling Dueck that he had been advised by his
lawyer not to say anything. Dueck ignored this information and
kept on questioning him. Dale Klassen continued to deny that
he had abused any children. The videotape is of much shorter
duration than twenty minutes and simply depicts Dueck advising
Dale Klassen of his legal rights and Dale Klassen responding
that he was advised by his lawyer not to say anything. The tape
does illustrate however, that Dale Klassen told Dueck of the
instructions he had received from his legal counsel. Despite
this, Dueck keeps questioning him, saying that he is obliged
by the prosecutors to interview him. Dale Klassen finally asks
if he can go and the tape ends.
[193] It was put to Dueck in
cross-examination that he had consistently denied Anita Klassen's
Charter rights to counsel. He replied that his understanding
of the law at
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that time was that once he
had given a person the right to counsel and the person declined
that right, he could keep on asking the person questions as long
as the person kept talking to him. He said it mattered not whether
the person continued to make repeated requests for counsel. Dueck
had no qualms about stating that this was his practice. The kindest
observation I can make about Dueck's interview practices, is
that they demonstrate his tendency to push his powers as a police
officer to the limits while affording those in his custody with
the most minimal compliance as possible with their basic Charter
rights. For this reason alone, I prefer the evidence of Dale
Klassen that most of his interview by Dueck was not videotaped.
[194] By way of stark comparison,
the interview of Kari Klassen by Walker, Dueck's assistant, was
done in a much more humane fashion. Although he pressed her for
a confession and challenged her with questions, he did so in
a gentlemanly manner and without putting undue pressure on her.
As was the case with Diane Kvello and Anita Klassen, Kari Klassen
seemed stunned and taken aback by the fact that child abuse allegations
had been made against her. Kari Klassen had never been a foster
mother. She consistently denied ever abusing any children, including
any of the foster children who had made allegations against her.
When she was asked for an explanation as to why the children
were saying these things if they were not true, she responded
with the only possible reason she could suggest. She had been
advised that the children had been neglected or abused in their
birth home and she suggested that they likely were making such
allegations because they resented their parents.
[195] In fairness to Dueck,
I recognize that a police officer has a difficult job and it
often involves unpleasant duties. Even competent police officers
are sometimes zealous and aggressive. But there are limits to
the degree of zeal and aggression that is acceptable in a free
and democratic society. Dueck's conduct in this case exceeds
that limit. He often asked the plaintiffs he interviewed to respond
to hypothetical fact situations that he posed
78
to them that were not representative
of the circumstances of the incredible allegations they faced.
As an example, he asked some of the plaintiffs if they would
disbelieve their children who ran into the house and reported
being sexually assaulted in the park. What is particularly troubling
about his zeal and aggression against the plaintiffs is that
it so tainted and distorted his so-called investigation, that
he was not willing to even consider the possibility that the
plaintiffs could be innocent of the horrible allegations made
against them. I conclude that his "investigation" was
in reality no investigation. The conduct he exhibited in his
interviews of the plaintiffs is a strong indication of malice.
Charges Laid
Against the Plaintiffs
[196] The particulars of the
various criminal charges laid against the plaintiffs are somewhat
convoluted because some were withdrawn and replaced by other
charges and some were not laid until after the court proceedings
had commenced. My summary is not strictly accurate but is adequate
for the purposes of this judgment.
[197] All the plaintiffs, except
those who were proceeded separately against as young offenders,
were jointly charged on July 6, 1991 with sexual assaults against
[M.R. 1], [M.R. 2] and [K.R.], (the foster children in the Dale
and Anita Klassen home), over a seven-year period of time between
January 1, 1984 and December 31, 1990. [198] Pamela Sharpe was
additionally charged on the same date with sexual assault against
T.H., (a foster child in her home), over the same period of time.
[199] S.K. (male) and S.K. (female), the two plaintiffs who were
proceeded with as young offenders, were jointly charged on the
same date with sexual assault against [M.R. 2], (a foster child
in the Dale and Anita Klassen home), over the same period of
time.
79
[200] S.K. (male) was additionally
charged on the same date with sexual assault against S.L.H.,
(a foster child in the Kvello home), over the same period of
time.
[201] John and Myrna Klassen
and Dennis and Diane Kvello were additionally jointly charged
on July 15, 1991 with sexual assaults against each of S.W.H.,
S.E.H. and S.L.H., (foster children in the Kvello home), over
the same period of time.
[202] S.K. (male) and S.K.
(female) were additionally jointly charged on July 18, 1991 with
sexual assault against [M.R. 2], (a foster child in the Dale
and Anita Klassen home), over the same period of time.
[203] S.K. (male) and S.K.
(female) were additionally jointly charged on November 19, 1991
with sexual assaults against [K.R.], [M.R. 2] and S.W.H., (the
two [R.] children being foster children in the Dale and Anita
Klassen home and S.W.H. being a foster child in the Kvello home).
[204] S.K. (male) and S.K.
(female) were additionally jointly charged on November 26, 1991
with sexual assaults against [K.R.], [M.R. 2] and S.W.H., (the
two [R.] children being foster children in the Dale and Anita
Klassen home and S.W.H. being a foster child in the Kvello home).
[205] Pamela Sharpe was charged
on November 27, 1991 with sexual assaults against M.K. and T.K.,
(foster children in her home).
Arrests of
the Plaintiffs
[206] As indicated previously,
the arrests of the plaintiffs and the apprehension of their children
were orchestrated by Dueck and Social Services well in advance
of the
80
planned charges and arrests
and long before Dueck travelled to Red Deer, Alberta to interview
the plaintiffs who lived there. It was only because the plaintiffs
and their children who resided in Red Deer were outside the jurisdiction
of Saskatchewan Social Services, that the assistance of Alberta
Family Services personnel in Red Deer had to be secured. The
six plaintiffs who lived in Red Deer were arrested on July 10,
1991.
[207] The trauma associated
with the arrest of Richard and Kari Klassen from their homes
was accentuated by the stress of seeing their children apprehended
from them by Alberta Family Services. It was also an emotional
experience for Dale Klassen when he was arrested at his home
and his three children were taken from him. Anita Klassen was
arrested at her place of employment. John and Myrna Klassen were
arrested at their home after their children had left for an outing
with friends. During the time these three couples were remanded
in custody in Red Deer for six days, the wives were held together
and the husbands were held together. The three couples were all
returned to Saskatoon where they spent another night in custody
before being released on bail. They then had to find a means
of getting back home to reconnect with their children who had
been placed into foster care.
[208] Some of the six Red Deer
plaintiffs testified that they were well treated while in custody
in Red Deer but were given a much "cooler" reception
by the police in Saskatoon by being treated with contempt and
being placed for the night in a cold cell without a bunk.
[209] The remaining six Saskatoon
plaintiffs, Pamela Sharpe, Marie Klassen and the four Kvellos,
were also arrested on July 10, 1991. They too suffered the humiliation
and trauma of being arrested. Marie Klassen had to be taken to
the police station in her wheelchair. She is now deceased and
the desire that she carried to her grave was that she and her
sons and daughters-in-law would be exonerated of the criminal
charges in the
81
eyes of the public. Dennis
Kvello is also now deceased. The proceedings affected him so
deeply that he had his company switch him from his position as
a residential electrician to one as a commercial electrician
so that he could avoid coming in contact with any children. He
was no longer able to touch his own children and lost the desire
to have sexual relations with his wife, circumstances that continued
until his death.
[210] S.K., one of the young
offenders testified that she was interviewed when she was arrested
by Dueck and by Bunko-Ruys in an attempt to get her to make "disclosures"
of sexual abuse on the part of her parents and her brother. She
felt particularly "threatened" when Bunko-Ruys "tried
to make me say that my parents abused me". She testified
that Bunko-Ruys told her twice that if she did not admit this,
she (Bunko-Ruys) would lose her job. She denied any abuse or
inappropriate touching on the part of her brother or anyone else.
She broke down on the witness stand as she related this incident
that occurred over 12 years before.
[211] In fairness to Dueck
and Bunko-Ruys, it appears from the Social Services memos, (one
of the few that the parties were able to secure from the defendants'
records and tender into evidence), that the interview was conducted
by Walker and by Matkowski. Surprisingly, there is no videotape
of this interview even though it was conducted by a police officer
in the soft room furnished with a video camera and in the presence
of a therapist or social worker. As well, Bunko-Ruys did not
take the witness stand to deny this assertion respecting her.
It is also troubling that the videotape of this interview cannot
be located. This is particularly so when other potentially damaging
pieces of evidence which should have been in the possession of
police cannot be found. I refer to the Schindel report as an
example. S.K. may be mistaken about the identity of her interviewers,
but I am satisfied that her vivid memory of what she recalls
was said to her is accurate. Even if it was Matkowski who made
the comment, the point is that it demonstrates the level of pressure
that was routinely put on children by Social Services personnel
or by the police to "disclose" abuse on the part of
their family members in
82
cases where no such abuse had
ever occurred. Such conduct is reprehensible and is a form of
child abuse committed by agencies to whom children are entrusted.
The Reliance
on the Saskatoon Sexual Abuse of Children Protocol
[212] The defendants all rely
heavily on the Saskatoon Sexual Abuse of Children Protocol in
their attempts to justify why they took a subjective rather than
an objective view of the children's allegations. There are two
such Protocols, one released in 1986 (before the allegations
that are the subject of this case were acted upon) and the other
in December 1991 (after the prosecutions based on those allegations
were begun). The difference between them is so insignificant
that I will restrict my comments to the provisions of the 1986
Protocol. The Protocol represented an interdisciplinary approach
that had been agreed upon among various agencies, including the
Saskatoon City Police, Child and Youth Services (Social Services),
Public Prosecutions and other agencies. It was spawned to address
what was undoubtedly an attitude that the sexual assault allegations
of children were unreliable.
[213] Prior to the mid 1980s,
the social and justice system did not do enough to investigate
allegations by children of sexual abuse and then bring to justice
the perpetrators of such abuse on those defenseless children.
Some of the most heinous criminals in our society, child molesters
and pedophiles, were never charged and prosecuted primarily because
their victims were considered to be unreliable witnesses.
[214] As with many well-intentioned
responses to social problems in our society, the Protocol may
have gone too far in its laudable objective by creating another
potential social problem of the same magnitude. The case before
me demonstrates how the Protocol was interpreted and utilized
to justify a cause of action that ignored time-tested
83
legal traditions and violated
the basic legal rights enjoyed by the plaintiffs in conjunction
with all other members of our free and democratic society. The
lives of the plaintiffs have been irrevocably damaged. The unlawful
actions of the defendants caused them to be held up to hatred
and public ridicule by being branded as pedophiles and wrongfully
charged with the most horrible and distasteful crimes in our
society. The social problem caused by these consequences would
not have materialized had the basic democratic and legal protections
and presumptions guaranteed by our Constitution not been sacrificed
to address another social problem, the reluctance to accept allegations
of child abuse. The laudable objective of the Protocol in addressing
this social problem does not justify the violation of constitutional
rights.
[215] But in fairness to those
who are responsible for the Protocol, I am of the view that Social
Services and the defendants put a "spin" on it that
is taken out of context by relying solely on one aspect of it
and ignoring the others. The main criticism of the Protocol is
that it tends to be lopsided. It overemphasizes the need to accept
the allegations of children and underemphasizes the equal or
higher need to properly investigate those allegations to avoid
the likelihood of wrongfully charging and convicting innocent
people. Some of its provisions appear to minimize or understate
the requirement of the law for reasonable grounds to justify
the duty to report child abuse and the duty to investigate it.
In view of what happened in this case that demonstrates the prevailing
attitude of Social Services and child care workers in the late
1980s and early 1990s, it is important to emphasize this requirement.
[216] Sections 12(1) and (4)
and 13 of The Child and Family Services Act provides as follows:
12(1) Subject to subsections
(2) and (3), every person who has reasonable grounds to believe
that a child is in need of
84
protection shall report the
information to an officer or peace officer.
. . . (4) Every peace officer
who has reasonable grounds to believe that a child is in need
of protection shall immediately report the information to an
officer. . . .
13 Where a report is made pursuant
to subsection 12(1) or
(4), an officer or peace officer
shall investigate the information set out in the report if, in
the opinion of the officer or peace officer, reasonable grounds
exist to believe that a child is in need of protection.
[Emphasis added]
The version of the legislation
that was in effect in 1990 is for all intents and purposes the
same.
[217] The Protocol addresses
the respective roles of individuals who are involved in the sexual
abuse of children. It integrates those roles, particularly that
of the police officer and that of the adult who bring forward
the complaint, more closely than was the case traditionally.
The Protocol is essentially a list of instructions to give directions
and provide a consistent approach to those responsible for the
reporting and investigation of child abuse. The instructions
are set out in sections and beside the instructions are explanatory
guidelines. Although not part of the instructions, the Protocol
contains a Statement of Beliefs.
[218] I am loathe to clutter
up this judgment by referring to specific provisions in the Protocol.
But there is no other means by which I can demonstrate that the
interpretation placed on the Protocol by the defendants is erroneous
and that their reliance
85
upon that erroneous interpretation
is of no assistance to them. I will comment on only those provisions
that are relevant to this case to establish three principles.
First, an objective standard is incorporated into the reporting
and investigation of child abuse. Second, a proper police investigation,
independent of the child's allegations, is required. Third, justice
issues must be considered and adhered to. The Protocol clearly
does not purport to override criminal laws and procedures or
the protections granted by the law and the Charter to members
of the public who may be charged with a sexual abuse offence.
A careful reading of the provisions also demonstrates that many
of the things done by Social Services personnel and by at least
some of the defendants, were not done in accordance with the
provisions of the Protocol.
[219] The relevant part of
the Statement of Beliefs is Clause C which provides:
"Children bear no responsibility
for their victimization by adults. They will be assumed to be
telling the truth when reporting abuse." This provision
in the 1991 Protocol was expanded to add: "Their statements
will be accepted and investigated." I now move on to the
Protocol provisions themselves.
[220] Section 1 reflects the
legal requirement to report "suspected abuse" which
is defined by s. 1.1 to mean a "reasonable suspicion"
of that abuse. The term "reasonable" implies an objective
consideration as well as a subjective one. Upon receipt of a
report of reasonably suspected sexual abuse, the police are required
by s. 1.2 to document the report and by s. 2.1 to initiate the
"appropriate investigation" which, as the guideline
indicates, includes "checking for available information
relevant to the case".
[221] The s. 2.1.2 guideline
provides that: "The Department and the Police are commonly
concerned first about the immediate safety of the child. Secondly,
they are concerned about the protection and justice issues ".
Section 2.1.2.3 requires the police "to investigate the
circumstances and facts of the alleged offence." The guideline
states that:
86
"Facts and descriptive
information regarding the alleged offence will be necessary to
determine the potential impact upon the child and the culpability
of the alleged offender."
[222] An "appropriate
interview procedure with the reported victim" is required
by s. 3.1. The guideline provides that: "IDEALLY, one interview
with both an officer of the Department and a Police Officer present,
should be sufficient in the initial investigation to determine
if sexual abuse has occurred." Section 3.1.3 provides that:
"The interview will focus upon information related to: 1)
the safety needs of the child, 2) psycho/social needs of the
child, and 3) facts related to the incident(s) of abuse."
The explanatory guideline provides that: "Detail of the
incident(s) will assist to assess: 1) substantiation of the allegation,
and 2) impact upon the child, short-term and long-term."
[223] Section 3.1.5 provides
that: "The investigating officer will ensure adequate documentation
of the interview." The guideline provides: "Documentation
of Interview As may be necessary to establish: 1) that a child
is, or is not, in need of protection, 2) that an offence has,
or has not, been committed, and 3) what further action may be
required, the investigating officer(s) will keep such records
as may be necessary to assist in the fulfillment of their respective
mandates. The primary responsibility of the Department of Social
Services Officer will be to attend to the protection needs of
the child(ren). The police will be primarily responsible for
those issues related to the criminal nature of the alleged offence."
[224] Section 4.1 provides
that: "Following the interview with the child, the investigating
officer(s) will: 1) Advise the non-offending guardian(s) of the
circumstances and that the interview has taken place." The
guideline provides that: "If the report of abuse cannot
be substantiated, the officer may counsel the child and/or guardian
regarding the management of the situation at hand and/or the
management of responses to abusive situations."
87
[225] Section 5.2.1 provides
that: "The Officer may refer the child and/or others for
any of: . . . 2) a medical assessment report." The guideline
provides that: "A medical assessment will be requested whenever
there is suspicion of physical abuse or sexual violation of the
child."
[226] Section 6.1 provides
that: "Given sufficient cause, a Police Officer will initiate
the appropriate investigative procedures to gather facts regarding
the reported incident(s) of the sexual abuse of a child."
The guideline provides: "Upon receipt of a report, or a
request for investigative assistance from the Department of Social
Services, the police will initiate an investigation, to the extent
necessary, to determine: 1) the authenticity of the report, 2)
the facts of the reported incident(s), 3) whether or not a crime
has been committed, and 4) the culpability of the reported perpetrator.
The investigation may include: 1) the initial interview with
the child and family, 2) an interview(s) with the alleged perpetrator,
and 3) such other contacts as deemed suitable."
[227] Section 6.2 provides
that: "ON COMPLETION OF THE INVESTIGATION, THE POLICE SHALL:
1) decide upon the appropriate charge(s), if necessary in consultation
with prosecutors, 2) swear the appropriate information(s), 3)
notify the appropriate officer of the Department of Social Services
of the investigative conclusions, and 4) ensure the attendance
of the accused at court." The guideline for 6.2.1 provides
that: "With sufficient evidence, the police may, in consultation
with crown prosecutors if necessary, lay charges appropriate
to the apparent crime." The guideline for s. 6.2.3 provides:
"The police will notify the Department of: 1) the conclusion
of their investigation, 2) what charges, if any, have been laid,
3) the status of the alleged offender - vis-a-vis his access
to the child(ren) in question, and 4) where applicable, the date
of the first scheduled appearance of the accused in court."
88
[228] Section 6.5 sets out
procedures to minimize the trauma to a child caused by a court
appearance. These include arrangements for the introduction of
the child to the prosecutor, an interview, a courtroom tour and
possibly a request of the court that the case be placed at end
of docket to protect the identity of the witnesses. Nowhere in
the Protocol is the use of a screen or the "ungowning"
of the judge suggested.
[229] Taken in context, these
provisions make it clear that the complaints of children respecting
abuse are not to be blindly believed or accepted without question.
But on the other hand, they are certainly not to be rejected
out of hand because of the age of the child, because the alleged
perpetrator is an otherwise upstanding citizen or because the
allegations may be difficult to prove in a court of law. The
Protocol envisages, and in fact calls for, an independent investigation
and assessment of the complaints of children respecting abuse.
The term "investigation" implies that a proper and
competent police investigation will be conducted to explore the
possibility of independent evidence that either supports the
allegations that comprise the complaint or that tends to cast
doubt upon them. The term "assessment" implies that
there will be an objective and independent consideration of the
allegations with proper deference being given to them. Appropriate
records are to be kept.
[230] In other words, those
involved in obtaining or investigating child allegations of abuse
are not mere recorders of them. They have the duty (within their
respective roles) to investigate and assess those allegations
before proceeding with the laying of serious charges. Nor is
there any indication in the Protocol to support the contention
that a belief in the truth of the allegations must be maintained
no matter how the allegations might subsequently unravel or become
inconsistent with other credible evidence.
[231] I move on to comment
on how Bunko-Ruys and Dueck failed to comply
89
with the Protocol. In her examinations
for discovery, Bunko-Ruys says that she had no obligation to
even consider the truth of what the [R.] children were disclosing
because that was not part of her "role" as a therapist.
She says that this is so even though she admits she was told
that [M.R. 1] was an accomplished liar before she became his
therapist. She says that this is so even though she admits that
he lied to her on occasion both before the charges were laid
and while the prosecution was underway. She maintains that she
had no obligation to advise the court of [M.R. 1]'s propensity
to lie even though she appeared as a supporting witness for the
children and the Crown, even though she knew that the whole case
depended on the credibility of the children, and even though
she knew that the liberty of 16 individuals was at stake largely
because of her testimony.
[232] As I outlined previously,
Bunko-Ruys saw her "role" as a therapist to be restricted
to helping the children to express their perceptions. She obviously
continued with that view even after all the proceedings were
stayed on the basis that the [R.] children were too traumatized
to continue with the prosecution of the plaintiffs. When her
therapy patient, [K.R.], told her that she had lied at the trial,
Bunko-Ruys told her to forget it and that nothing could be done
about it. One would think that a professional therapist would
have felt some moral obligation, if not a legal one, to advise
the authorities, or at least the plaintiffs, of this turn of
events.
[233] It is particularly reprehensible
that Bunko-Ruys stifled the recantation because it was made to
her by one of the children whose allegations of abuse and whose
credibility had been supported by her from the time the allegations
were made until the charges were stayed. Three individuals still
remained convicted because the court had accepted the truth of
those allegations to a large degree because of the evidence of
Bunko-Ruys herself. Her view in such circumstances that she has
no "role" or obligation respecting the truth is beyond
comprehension.
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[234] In this particular case,
Bunko-Ruys became far more involved in its investigation and
prosecution than would most therapists in the normal course of
events. Had she remained within the confines of her office and
carried out her duties as a therapist and a therapist only, her
"role" would have remained that of a therapist and
her obligations would be confined primarily to the children who
were being treated by her. But she left the confines of her office
and not only became integrally involved in the police investigation
in gathering and recording evidence on which to found charges,
but also became integrally involved in the prosecution of those
charges. She met regularly with the prosecutors, provided advice
to them, attempted to assist them to find expert witnesses, appeared
in every court proceeding as an expert witness for the Crown,
testified in every court proceeding on behalf of the Crown respecting
the children.
[235] By conducting herself
in this fashion, Bunko-Ruys expanded her "role" far
beyond that of a therapist. In doing so, her professional obligations
expanded accordingly and became much more onerous and significant
than those associated with the role of a therapist. Another way
of putting it is that Bunko-Ruys voluntarily became part of the
team that investigated and prosecuted the plaintiffs. She cannot
avoid civil liability on the basis that she is a therapist any
more than a driver who negligently injures someone can avoid
liability on the basis that he is a police officer. Her involvement
or "role" in this case is characterized and determined
on the basis of what she in fact did throughout. It is not governed
by the occupational title or the name of the role that she ascribes
to herself. For the reasons I have outlined, Bunko-Ruys cannot
rely on the Protocol to exclude her from liability.
[236] The same can be said
for Dueck. He was, for all intents and purposes, the sole police
officer involved in the investigation of the case. He made the
case his own and appeared to keep it pretty much to himself,
the Thompsons, Bunko-Ruys and the children. None of his superiors
who testified at the trial before me seemed to know much
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