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Judge George
Baynton's historic judgment, page 4
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about the case he was investigating
or about his involvement in it. Nor did Walker, his assistant
who he utilized from time to time when he needed another police
officer to assist with arrests and the like, seemed to know much
about it. Dueck clearly had an obligation under the Protocol
to do a proper independent investigation and assessment. I set
out my reasons previously for concluding that he did not do so.
[237] Dueck conducted himself
during the first year and a half as if he was a social worker,
not a police officer. He recruited Bunko-Ruys and Marilyn Thompson
as his assistants and abrogated a significant part of his investigative
role to them for over four months. The manner in which he conducted
himself and his failure to comply with the provisions of the
Protocol that he claims to rely on to justify his actions throughout
the case, clearly demonstrate that the Protocol does not exclude
him from liability even if it had the status of a statute.
[238] I will discuss the duties
and obligations of a prosecutor later in this judgment. I will
also relate how Miazga and Hansen failed to perform some of those
duties. Both of them dealt with the allegations and testimony
of child witnesses in a fashion that was contrary to some of
their duties and obligations as prosecutors. Miazga and Hansen
attempted to justify how they dealt with the child witnesses
on the basis of the Protocol. The Protocol does not supersede
the law nor does it purport to do so. The prosecutors cannot
rely on the Protocol to exclude them from liability. As in the
case of the defendants, they did not comply with it. Even if
they had done so, it could not relieve them of their legal obligations.
The Nature
of the Criminal Proceedings
[239] At the outset of this
judgment, I outlined in general terms the different criminal
proceedings that were initiated to prosecute all the allegations
of the [R.] children and those of the other foster children that
were drawn into the case. A more
92
detailed description of the
nature of the criminal proceedings that followed the arrests
is required to provide context for the events that followed that
have a bearing on this civil case.
[240] The prosecutors were
faced with the daunting task of prosecuting 16 persons charged
with committing over 70 sexual assaults on eight children and
one additional child as the case continued. I have previously
outlined the details of those charges. The prosecutors proceeded
with the charges against all the individuals in three separate
cases. The first case was comprised of the three [R.], [R.] and
White individuals. This is the [R.], [R.] and White related proceedings
that I referred to earlier in this judgment. The second case
was comprised of the 10 adult Klassen - Kvello plaintiffs in
the civil action before me and Peter Klassen, the individual
who is not a plaintiff in this civil case and who eventually
pled guilty to four of the charges. As the second case progressed,
some of the existing charges were stayed by the Crown while some
new charges were laid. The effect of this was that some of the
child complainants were removed from the second case while others
were added to it.
[241] The third case was comprised
of the two plaintiff young offenders to whom the Young Offenders
Act, R.S.C. 1985, c. Y-1, which was in effect at the time, applied.
[242] Much of what occurred
during the one and a half years that these criminal proceedings
occupied has little relevance to the civil case before me. But
all the parties quite properly rely on these events to provide
further evidence of the conduct of the defendants from which
inferences of fact can be drawn that pertain to the material
issues in the civil case before me. The parties disagree as to
what those inferences should be.
[243] The [R.], [R.] and White
preliminary inquiry commenced on November 21, 1991 and ended
on December 2, 1991. No child complainants other than the [R.]
children
93
were involved in the case so
Miazga alone handled the prosecution for the Crown. Hansen did
little more than sit in for a couple of partial days to observe
[M.R. 2] and [K.R.] testify. [D.R.] was represented by Roger
Kergoat, [H.R.] was represented by Jack Hillson and Donald White
was represented by Donald Mullord. At the conclusion of the preliminary
inquiry, [R.], [R.] and White were committed to stand trial on
the charges brought against them.
[244] The Klassen - Kvello
preliminary inquiry commenced on December 2, 1991 and ended on
January 16, 1992. Daryl Labach represented the Klassen family.
Robert Borden represented the Kvello family. On December 2, 1991,
at the outset of the preliminary inquiry, the charges brought
against John and Myrna Klassen, Dale and Anita Klassen and Dennis
and Diane Kvello on the allegations of S.E.H. and S.L.H. we re
stayed by the Crown as were the charges brought against Peter
Klassen on the allegations of M.K. Shortly after, on December
10, 1991, the charges brought against Pamela Sharpe and Peter
Klassen on the allegations by T.H. were stayed by the Crown.
On January 14, 1992, near the end of the preliminary inquiry,
the charges brought against John and Myrna Klassen, Dale and
Anita Klassen and Dennis and Diane Kvello on the allegations
of S.W.H. were stayed by the Crown.
[245] The preliminary inquiry
judge discharged Pamela Sharpe and Peter Klassen respecting the
other charges brought against them by M.K. He also discharged
Marie Klassen respecting the charges brought against her on the
allegations of [M.R. 1]. He committed Peter Klassen and the 10
plaintiffs for trial on all the other charges. The net effect
of all this was that the outstanding charges that then remained
in the Klassen - Kvello case were reduced to those laid on the
basis of the allegations of [M.R. 1], [M.R. 2] and [K.R.] with
two exceptions. The first was a charge against Pamela Sharpe
by T.H. All the charges against the other individuals that were
based on T.H.'s allegations had been stayed by the Crown. The
second was a charge against Peter Klassen by C.H., a
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child who had made no allegations
against anyone but Peter Klassen.
[246] The [R.], [R.] and White
trial commenced on October 29, 1992 and ended on December 18,
1992. These three individuals were convicted of some of the charges.
Each of [D.R.] and [H.R.] were subsequently sentenced to six
years imprisonment. Donald White was subsequently sentenced to
three years imprisonment. Each of them appealed their convictions
and ultimately the Supreme Court of Canada allowed their appeals,
overturned their convictions, entered an acquittal respecting
Donald White and directed new trials for [D.R.] and [H.R.]. The
Crown did not proceed to retry [D.R.] and [H.R.].
[247] The third case involving
the plaintiff young offenders, was never proceeded with. On November
27, 1991, the charges brought against them on the allegations
of [K.R.], [M.R. 2], S.L.H. and S.W.H., were stayed by the Crown.
In late January or early February 1992, all the remaining charges
outstanding against them were stayed by the Crown.
The Role of
the Defendants in the Criminal Proceedings
[248] I previously outlined
the roles that Bunko-Ruys, Dueck and Miazga played in the cases
from their inception until the charges were laid and the arrests
were made. I now move on to outline the roles that Bunko-Ruys,
Miazga and Hansen played in these cases thereafter. Dueck had
little involvement in the prosecution of the cases.
[249] Hansen was assigned to
assist Miazga as co-counsel to prosecute the plaintiffs and the
other four individuals charged. Both she and Miazga were experienced
prosecutors, each having in excess of a decade of prosecution
experience. Each was employed in Saskatoon by Saskatchewan Justice.
Wilf Tucker and Fred Dehm were their
95
immediate superiors during
the time they were involved in the prosecution of the plaintiffs.
Miazga and Hansen divided up their workloads so that Miazga could
concentrate on the charges involving the [R.] children while
Hansen could concentrate on those involving the other foster
children.
[250] This meant that both
prosecutors jointly prosecuted all those charged. But Miazga
was responsible for the preparation and presentation of the [R.]
children and the evidence pertaining to the charges brought respecting
them, while Hansen was responsible for the preparation and presentation
of all other child witnesses and the evidence pertaining to the
charges brought respecting them.
[251] Hansen was not involved
in any prosecutorial advice that was given to Dueck before the
informations were sworn that formalized the charges. Nor did
she have any input into the case until after the initial charges
were laid and the arrests were made. Her initial task was to
interview six child complainants who had already made sexual
assault allegations that had lead to charges being laid before
Hansen's involvement. She was not responsible for the three [R.]
children so she did not interview them or review their videotaped
interviews. Her only exposure to their evidence prior to the
Klassen - Kvello preliminary inquiry was her observation, for
two partial days of testimony, of [M.R. 2] and [K.R.] in the
[R.], [R.] and White preliminary inquiry that I referred to previously.
[252] Hansen had received Dueck's
occurrence report in the fall of 1991 but she was not aware of
the Thompson notes until they became an issue at the preliminary
inquiries. She reviewed the videotaped interviews of the children
for whom she was responsible. She had some concerns about the
manner in which the children had been led by Dueck, their interviewer.
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[253] The prosecutors had several
scheduled meetings with Social Services workers, foster parents
and the therapists for the children. It appears that the focus
of the meetings was on the "needs" of the children
and on what could be done to minimize the "trauma"
of their appearances in court. Miazga took the position at the
first preliminary inquiry, one that involved the [R.] children
only, that the court should make special arrangements for the
children to lessen the trauma they would experience by appearing
in the courtroom and testifying. He tendered Bunko-Ruys and had
her qualified to give evidence as an expert in the area of identification
and treatment of sexually abused children. She testified that
the [R.] children were very agitated and fearful to come to court,
that they were "quite terrorized", that they had experienced
"extreme trauma" and that they "don't want to
see their parents".
[254] In the course of her
testimony, she said she had obtained "disclosures"
from them. But she said it took a year to get them from [M.R.
1] and six months to get them from [K.R.]. She said that the
[R.] children were suffering guilt, shame and embarrassment.
She said that [M.R. 1] and [M.R. 2] were supervised in class
and all three [R.] children were supervised at all other times
because of their propensity to touch others and themselves.
[255] The court ordered that
the special arrangements sought by Miazga be granted. The first
was that the accused individuals would be hidden behind a screen
so that the children would never have to look at them. The second
was that everyone, including the media, would be excluded from
the courtroom while the children were testifying. Only Social
Services support personnel for the children, the lawyers directly
involved and the accused individuals behind the screen, were
allowed to be present. Miazga successfully opposed the application
of Robert Borden to sit in as an officer of the court to simply
observe the proceedings. Mr. Borden was one of the defence lawyers
who would be involved in the Klassen - Kvello preliminary inquiry
that would soon
97
follow. The allegations of
the [R.] children and, to a lesser extent, the other six children
involved, would be an issue in the Klassen - Kvello preliminary
inquiry.
[256] The third concession
was that the judges would doff their gowns and wear suits. The
fourth was that the children would have access to the courtroom
via the judges' hallway from a room in the judges' chambers.
This was done so that the children could avoid passing through
the public hallway where they might see the individuals they
had alleged as sexually assaulting them. Miazga also suggested
at one point that the lawyers remain seated when asking questions
of the children and that the children be removed when the lawyers
objected, argued or made submissions. This was acceded to in
part. The transcripts set out the comments made by the preliminary
inquiry judge which speak for themselves. It is sufficient to
observe that he repeatedly commended the children for their courage
in testifying in court, commended Marilyn Thompson for the tremendous
job she was doing with the children and acceded to just about
every request and whim of the children. The unfortunate consequence
of these types of remarks was that it impaired the perception
of the impartiality of the court.
[257] Right from the start,
the allegations of the [R.] children did not fare well, even
during their examinations-in-chief. They fared even more poorly
in the face of gentle cross-examination. This was likely the
first time anyone had called into question what they were saying.
The poor performance of the [R.] children cannot be attributed
to intimidating cross-examination. Throughout all three proceedings,
all defence counsel involved were polite, courteous and considerate
toward the children. They did not harass them or take advantage
of them. The trial judge and the judge conducting the preliminary
inquiries complemented defence counsel in this respect. Nor can
the poor performance of the children be attributed to fear, trauma
or exhaustion as the child care wo rkers and the prosecutors
would have the court and the public believe. It should have been
obvious that the poor performance of the [R.] children was caused
primarily by their inability to
98
accurately relate the fabrications
they had previously made and their inability to weave new fabrications
consistent with those they had previously made.
[258] I previously outlined
my reasons for concluding that the [R.] children were not traumatized
and they need not be repeated. But I did not outline my observations
about all the glaring inconsistencies I noted in what the [R.]
children said at various times about the abuse they supposedly
suffered and about who abused them. These inconsistencies can
readily be determined from a careful perusal of various sources,
including what they said to Marilyn Thompson as set out in her
detailed notes of their initial "disclosures", what
they said in their videotaped interviews, what they said to Dr.
Yelland and what they said in their respective examinations-in-chief
and crossexaminations at the three court proceedings. These inconsistencies
pertained not only to what one child said compared to another,
but also to what one child said on one occasion compared to what
he or she said on other occasions. These significant inconsistencies
not only pertained to the particulars of what was allegedly done
to them, but to the identity of those who allegedly did these
things to them.
[259] Hansen, at the request
of Miazga, sat in on the [R.], [R.] and White preliminary inquiry
for parts of two days to listen to some of the evidence given
by [K.R.] and [M.R. 2]. Hansen relied on this brief and limited
exposure to the [R.] children to later tell her superiors that
she "believed the children".
The Use of
"Child Experts"
[260] Miazga made extensive
use in the criminal proceedings of what I will term as "child
experts". The experts called by Miazga in the criminal proceedings
in this case could also be referred to as child "oath helpers".
I will outline later the apparent rationale of Miazga in adducing
this "expert" evidence. But before doing so, I need
to relate the
99
gist of the type of expert
evidence that was given and comment on the lack of objectivity
of those witnesses in matters involving child abuse. I begin
with the medical evidence.
[261] Dr. Yelland was tendered
by Miazga at the [R.], [R.] and White preliminary inquiry as
an expert witness to give an opinion on the possible causes of
physical injuries. Miazga aggressively led Dr. Yelland in his
examination-in-chief to get him to say in effect that notwithstanding
the clear findings set out in his 1990 and 1991 medical reports
to the contrary, as I detailed earlier on in this judgment, there
was really no more evidence of sexual and physical abuse in 1991
than there was in 1990. The compliant explanation for this rather
astounding conclusion by the doctor was twofold. First, after
completing the 1990 reports, he took a course that made him more
aware of what to look for as indications of abuse. Second, he
had a better "history of abuse" from the children and
the foster mother when he did the 1991 examinations than he had
when he did the 1990 examinations.
[262] Dr. Yelland acknowledged
that he did a complete physical examination of the children in
1990 with the sole and specific objective of detecting child
abuse, the same thing that he did in 1991. He testified that
he had gotten 200-400 referrals from Social Services over a four-year
period prior to November 1991. In the following preliminary inquiry,
he testified that he knew of only Dr. McKenna besides himself
that did these physical examinations for Social Services. I have
difficulty accepting that, with all his experience, he in effect
botched his 1990 examinations. If I reject this conclusion, then
I am left with the conclusion that he bases his medical reports
more on the subjective "history" with which he is provided
than on his own professional and objective observations gleaned
from his physical examination of the children's anatomy. [263]
His evidence at the civil trial confirms my second conclusion.
He outlined the graphic details of the bizarre and ritualistic
abuse alleged to him by the [R.] children
100
at the time he conducted his
1991 examinations. These allegations included the incredible
and distasteful acts that I have described before and that I
have no desire to repeat. These allegations were of a totally
different nature from what he was told when he examined the children
in 1990. At that time, the girls denied any abuse and the abuse
related by [M.R. 1] was that he had been sodomized by his natural
father. There were no allegations of being cut with knives or
being burned. Dr. Yelland concluded that all these allegations
were true based on the Thompson histories and the detailed allegations
of the children. [264] Dr. Yelland located the scars on the children
that they pointed to as being caused by the abuse. He said that
his findings were compatible with ritualistic abuse even though
he admits that he has no experience with ritualistic abuse. He
says however that he was extensively involved with Social Services
in developing the Saskatoon Sexual Abuse of Children Protocol.
He confirmed his previous testimony that Social Services send
children to Dr. Anne McKenna and himself respecting sexual abuse
allegations. He said that his role is to try to document physical
evidence compatible with the history of abuse provided to him.
[265] He testified that he
tries to objectively assess the allegations of abuse yet he admits
that it is not his role to interview the children. He also said
that it took a lot of time to get the degree of information he
got from [M.R. 1] and that it is not unusual when interviewing
children to spend the amount of time he spent interviewing the
[R.] children. The little confidence I had in his objectivity
and professionalism left me when he unabashedly stated that "he
believes the kids, absolutely" and that he believes the
ritualistic abuse in the Klassen home because "the children's
evidence is clear". The fact that he could be so certain
of the Klassens' guilt or involvement in such distasteful acts,
solely on the basis that their names were given to him by a child
who also concurrently named many others as abusers, is an example
of an irrational belief that I describe later in this judgment.
101
[266] Dr. Yelland did acknowledge
that the damaged hymen he described was consistent with having
been caused by [M.R. 1] having sex with his sister. It is strange
that he would attribute all the relatively minor scars on the
children to the abuse described by them without considering if
there were natural causes or other causal events that might be
recorded in the medical history of the children. This is particularly
so when he knew his medical report and opinion respecting the
physical evidence of scars would be relied upon by Social Services
and likely by the Crown as independent proof of heinous and deliberate
physical abuse.
[267] Had Dr. Yelland reviewed
the medical history of the children, he would have discovered
at least two events that may well have altered his opinion. First
he would have known of the record of [K.R.]'s hospitalization
for serious injuries she received when she was pushed by [M.R.
1] and run over by a car, an event that obviously left her with
scars. Second, he would have known of the record of Dr. Anne
McKenna's report in which she examined [M.R. 2] for potential
sexual abuse when Anita Klassen contacted Social Services about
the concern she had when she found blood on [M.R. 2]'s panties
after a visit with her natural father. Dr. Yelland cannot be
faulted for noting and describing any scars that were borne by
the children or even in proffering an opinion as to what type
of injury might have caused each of he scars. But the question
as to how they got there or who, if anyone, caused the injuries
represented by the scars, was beyond his knowledge and his capacity
to determine.
[268] I take no delight in
making adverse comments about Dr. Yelland's objectivity. But
I do not apologize for doing so in view of the fact that innocent
individuals were charged, prosecuted and in some instances convicted,
on the basis, in part, that the incredible evidence of the [R.]
children was corroborated by independent medical evidence. Dr.
Yelland either knew or should have known that his written reports
102
would likely be utilized by
the police and by the prosecution in laying and prosecuting criminal
charges. As a medical doctor, he has a professional responsibility
to ensure that his reports represent an accurate account of his
professional findings and conclusions based on his physical examinations.
[269] Once he contaminates
his professional findings by basing them in part on the allegations
of the child he examines, any value of the report as corroboration
of the child's allegations is lost because the report is no longer
evidence that is independent of the child's allegations. A medical
doctor has no more expertise than a lay person in determining
the veracity of a child's allegations by simply listening to
the recounting of them. I acknowledge that this would not be
the case if the doctor, for example, had some special expertise
in child psychology and utilized the disciplines of that specialty
to test or question the child in an attempt to verify the allegations.
The examinations conducted by Dr. Yelland, however, were physical
examinations, not psychological examinations.
[270] The unobjective attitude
displayed by Dr. Yelland respecting sexual abuse allegations
is not unlike that of many of the child care workers who gave
extensive evidence in the criminal proceedings. Many of the individuals
who testified in those proceedings had a financial interest in
referrals from Social Services. Numerous witnesses testified
about the floodgates opening in the late 1980s in the number
of child sexual assaults that began to be reported. As is demonstrated
by the evidence in this case, this has created a growth industry
for professional child care workers, professional child therapists
and medical care professionals. This is understandable and likely
beneficial, but if these professionals are to effectively serve
the interests of the children entrusted to them, they must conduct
themselves as professionals with a level of objectivity and independence
that is apparent to anyone who is asked to rely on their opinions
and reports. If they fail to do so, courts and other institutions
or agencies that routinely receive these opinions and reports
will lose confidence in them and will not rely upon
103
them.
[271] I have related the evidence
of Dr. Yelland respecting his medical reports because these reports
were relied upon by the courts as providing some independent
support for the allegations of the [R.] children. The evidence
pertaining to the manner in which this medical evidence was presented
to the court is another example of how zealously Miazga prosecuted
the charges based on the incredible allegations of the [R.] children.
The manner in which he presented the medical information bordered
on an attempt to distort the inferences that would otherwise
be drawn from that evidence and to mask the difficulties that
it posed to the successful prosecution of the plaintiffs. In
my respectful view, this is an indication of malice on his part.
[272] Miazga called Bunko-Ruys
in three of the proceedings and Marilyn Thompson in two of the
proceedings, as witnesses to satisfy the court that the [R.]
children were extremely dysfunctional and sexually abused children
who should be expected to have inconsistencies in their perceptions
and in their allegations and testimony. These two witnesses and
all the other child therapists of the various child complainants
in effect became oath helpers for the children to prop up an
otherwise hopeless case. The extent to which Miazga used such
witnesses as oath helpers is again, in my respectful view, an
indication of malice on his part. This is particularly so in
a case involving so many individuals and such incredible allegations
presented by inconsistent testimony. Miazga knew the disastrous
consequences that would accrue to the plaintiff families if the
allegations of the children were false. Even if his view of the
role of a prosecutor was to record all allegations and let the
courts decide, he should not have pushed so aggressively to mask
evidence that would have helped the court in making an accurate
assessment of the credibility of the allegations.
The Case Starts
to Crumble
104
[273] The Crown's case began
to crumble during the first preliminary inquiry when the lies
of the [R.] children began to catch up with them. A particularly
embarrassing fabrication was [M.R. 1]'s story at the [R.], [R.]
and White preliminary inquiry about making and keeping notes
of abuse. The proceedings were adjourned so that [M.R. 1] could
produce his notes. The next day Miazga had to advi se the court
that [M.R. 1] was lying about the notes.
[274] I appreciate the fact
that Miazga was obviously shaken by [M.R. 1] lying to him and
to the court about making notes. The [R.], [R.] and White case
was Miazga's strongest case and the credibility of his star witness
was in serious jeopardy. In fairness to Miazga, he did on November
28, 1991, verbalize his concerns to the preliminary inquiry judge
who, in my respectful view, once again jeopardized the perception
of the impartiality of the court by appearing to encourage the
Crown to proceed. He implied that he was not concerned about
the fact [M.R. 1] would lie. Miazga and Hansen however were so
concerned about the utility in continuing with any of the proceedings
that on November 29, 1991 they sought advice from their superiors
who were attending a prosecutors' conference in Moose Jaw.
[275] They engaged in a telephone
conference call with Wilf Tucker, Ellen Gunn, Richard Quinney
and Fred Dehm and expressed their concerns about the case including
[M.R. 1]'s fabrication about the notes. When they asked what
they should do, Hansen was asked by Ellen Gunn if she honestly
believed the children and what opinion she held regarding them.
Hansen responded that she honestly believed that what she saw
and heard in court supported their allegations. The prosecutors
were advised to proceed. They got the committals from the judge
that they sought. That same day they began the Klassen - Kvello
preliminary inquiry.
105
[276] The prosecutors, despite
Miazga's aggressive pursuit of the case, were once again shaken
by the continued deterioration of the testimony of the [R.] children.
The testimony of [M.R. 2] and [K.R.] was becoming embarrassing
because of the wholesale inconsistencies in their evidence. Another
conference call was put through to their superiors in Regina
on January 7, 1992. This time they spoke to Richard Quinney,
now deceased, and Mr. Brown. Although there is a dearth of reliable
evidence as to what was said during the conference call, the
outcome was that the prosecutors should proceed and let the preliminary
inquiry judge decide. I am satisfied from the comments made by
the prosecutors in other conference calls, and in correspondence,
that they emphasized the traumatization of the children rather
than their lack of credibility. In all cases, the prosecutors
were told that if they believed the children, they should proceed
on. Miazga continued on with his prosecution with renewed vigour.
I will comment in more detail on the conference calls in connection
with my comments on the submissions of the defendants.
[277] Miazga and Hansen conducted
the Klassen - Kvello preliminary inquiry in the same manner as
the [R.], [R.] and White preliminary inquiry had been conducted.
The main difference were the stays entered by the Crown. Even
before the Klassen - Kvello preliminary inquiry began, there
was a flurry of stays entered respecting children in whom Hansen
had lost confidence. Stays on other children in whom she had
lost confidence followed later on during the preliminary inquiry
as it became evident that these child witnesses were unreliable.
Miazga forged on with the [R.] children but their evidence was
even more incredible than it had been at the previous preliminary
inquiry. Again, the prosecutors got most of the committals that
they sought. I provided details previously.
[278] Despite the preliminary
inquiry committals, Hansen and Miazga were having second thoughts
about proceeding against the two plaintiff "young offenders".
106
Their trial was set to begin
on February 3, 1992. The Crown eventually entered stays on all
the charges against them. Miazga's January 21, 1992 memo to the
file and Hansen's January 27, 1992 memo to the file, detail how
unreliable all their remaining child complainants were as witnesses.
The allegations of S.W.H. and [M.R. 2] and [K.R.] against the
young offenders had been materially revised then recanted. The
memos characterize the evidence of [K.R.] as "weak and sometimes
incredible" and that of [M.R. 2] as having repeatedly "recanted
on her testimony" in a fashion that ruled out a mistake
or misunderstanding. The memos indicate the views of the prosecutors
that the likelihood of convictions of the young offenders was
low. Despite this dismal view of their primary witnesses, Miazga
and Hansen continued on with the criminal proceedings respecting
the adults.
[279] The Crown wanted to proceed
first with the [R.], [R.] and White trial and then with the Klassen
- Kvello trial. The plaintiffs and their lawyers began to get
ready for trial. The three Klassen families in Red Deer made
arrangements to move to Saskatoon at the end of 1992 and to put
their children in the Saskatoon school system.
[280] Miazga prepared for the
[R.] trial. Hansen helped him to locate more expert witnesses.
In general terms, with a few exceptions, the same group of witnesses
appeared at the trial as had appeared on the two preliminary
inquiries. As the ritual and satanic abuse allegations of the
children had come out in cross-examination and been examined
in detail at the preliminary inquiries, Miazga called a psychologist,
Dr. Santa Barbara, to try and explain how the children could
be credible and yet make such untrue allegations. The defence
called Michael Elterman, another psychologist. Again, the [R.]
children's testimony was incredible, full of inconsistencies
and contradictions. Again, Miazga relied on the sexualization
of the [R.] children to establish that they had been sexually
abused. By this time, there was little left of their evidence
that had not been recanted or contradicted.
107
[281] Based on the testimony
I heard at the civil trial, the conviction of [R.], [R.] and
White came as quite a surprise to all those involved, including
Miazga and Hansen. It strengthened the resolve of the Crown to
proceed with the Klassen - Kvello trial. But the [R.], [R.] and
White trial judge had made a plea in her judgment that the children
not be put through yet another criminal proceeding. The defendants
seized on this, and the weakness of the Crown's case, as reasons
why the Crown should stay all the remaining charges against the
plaintiffs and against Peter Klassen. Miazga and Hansen refused
this proposal but were open to other suggestions which would
involve some guilty pleas. Some preliminary plea bargain discussions
began between Miazga and Hansen and Jay Watson, counsel for Peter
and Marie Klassen. I will outline the facts pertaining to this
later in my analysis of the second element of the malicious prosecution
cause of action. The plaintiffs refused to plead guilty to any
charges in exchange for stays by the Crown of the remaining charges
against them and were prepared to go to trial.
[282] The potential plea bargain
I referred to was eventually entered into by Miazga, Hansen and
Jay Watson. It provided that Jay Watson's client, Peter Klassen,
would plead guilty to the one charge respecting C.H. and one
charge respecting each of the three [R.] children. All other
charges against him would be stayed. He pled guilty on February
2, 1993 and was sentenced on February 8, 1993 to four years in
prison. All remaining charges against the plaintiffs were stayed
on February 10, 1993 by the Crown. The plea bargain and the stays
were reluctantly approved by the prosecutors' superiors in Regina.
I will deal with this aspect of the case later. I have already
outlined the appeals that were taken and the results of those
appeals.
[283] The plaintiffs then began
their malicious prosecution action in 1994. It finally came on
for trial on September 8, 2003. The trial concluded on November
13, 2003.
108
The Subjective
Beliefs of the Defendants Respecting the [R.] Children
[284] The respective subjective
beliefs of the defendants in the guilt of the plaintiffs respecting
the criminal charges brought against them by the [R.] children
are of significance to the outcome of this civil action. Their
testimony that they "believed the children", that they
"believed the substance of the complaints of the children"
and that they "believed that the children believed what
they were saying", was sorely tested and tried throughout
the trial. I previously set out some of the evidence upon which
I have relied in attempting to determine the state of the subjective
beliefs of the defendants at differing periods of time. I will
relate some more of that evidence.
[285] Miazga testified that
he had Dueck's occurrence report to review in May or June 1991.
It included the allegations of mutilation and killing of animals
and babies. He met with Dueck and talked about the case several
times. He has a note that they met on May 9, 1991 and again in
June. Dueck had asked him to look at the file and to advise him
what could be or should be done based on the nature of the evidence.
Miazga says that his memory is not clear of many of the details
of his initial involvement in the case. This is surprising in
view of his own admissions that he had never had another case
like it that involved such bizarre allegations and so many alleged
perpetrators.
[286] Miazga did not speak
to the children before the charges were laid nor did he view
the videotapes until sometime in September 1991. Again this is
surprising and somewhat appalling in view of the fact that the
videotapes of the children's evidence were equivalent to their
witness statements. Surely in view of the incredible allegations
and the nature of the case, he would have wanted to know the
details of what the children had previously claimed had been
done to them.
109
[287] Later on in his testimony
he said that as a prosecutor, he relied primarily on what witnesses
told him rather than on what they had said previously. But again
this is a troubling statement in a case that depends almost solely
on the credibility of the witnesses. Surely he would have wanted
to know what the children had said previously so that he would
be aware of any glaring inconsistencies in their allegations
that might be fatal to his case once that information got into
the hands of the defence. Although he did not say that he relied
on Dueck to take care of these potential problems for him, it
would be irresponsible for him to rely on Dueck for such an assessment
because Dueck had come to him for advice about the strength of
his case.
[288] Miazga testified that
he spoke to Bunko-Ruys before the charges were laid and that
he likely spoke to the social workers involved beforehand as
well. He knew Bunko-Ruys personally. As well, she had been a
therapist for a child (or children) on a previous case that he
had prosecuted. He and she were both members of the Saskatoon
Child Sexual Abuse Council, the council responsible for the Protocol
I described previously. He said he may have mentioned the case
to the child sexual assault group because it was an unusual case.
Although he has no recall of doing so, he may have suggested
that Dueck get further medical reports on the [R.] children.
This is likely what initiated the Dr. Yelland June 1991 medical
reports I referred to previously.
[289] The affidavits sworn
by Dueck to obtain the warrants as suggested by Miazga to search
the birth parents' home for blood containers and photos, set
out in effect that he believed the allegations of the children
concerning them. But the list of criminal offences alleged to
have been committed included only bestiality and incest that
were not some form of sexual assault as were the other charges.
He said in response to cross-examination by Robert Borden that
by the time he talked to Hinz (a date preceding this affidavit)
he no longer believed the bizarre aspects of the children's allegations.
Both Dueck and Miazga said that although they did not believe
these bizarre aspects of the
110
allegations, they believed
that the children believed them.
[290] The testimony of Dueck
and Miazga about their respective belief or lack of belief in
these bizarre allegations was at best confusing and more likely
was misleading. The evidence demonstrates that Dueck's statements
about his belief at critical stages in his investigation is inconsistent
and contradictory. Miazga attributed his inability to provide
details of his belief at critical stages in his involvement in
the case to lack of recollection of events that occurred over
a decade ago. I can understand a lack of recollection of mundane
events that occurred years before. But I do not accept that he
would have difficulty remembering his perceptions or beliefs
respecting such a bizarre issue that was an integral aspect of
a bizarre and unique case that occupied so many months of his
time.
[291] In any event, Miazga
said that by the time he had focused on what charges should be
laid, he had decided not to pursue any "special charges"
other than the sexual abuse charges. He said he has no reason
to dispute what Dueck says in his occurrence report. The ritualistic
and satanic allegations of the [R.] children comprise likely
half of that detailed report. Miazga is consistent in his evidence
that he told Dueck that "if he believed the children, he
could swear the informations".
[292] Again this is surprising
because, as is set out later, this is not the proper test to
justify the laying of serious criminal charges for two reasons.
First, Dueck had to have a subjective belief that the persons
he was going to charge had committed those offences. Second,
his subjective belief had to be founded on reasonable and probable
grounds that existed at the time he decided to charge those persons.
Although Miazga's advice to Dueck partially identifies the first
requirement of the test, there is no evidence from any source
that either Dueck or himself ever put their minds to the second
requirement of the test.
111
[293] After the charges were
laid and the plaintiffs were arrested, Miazga had little involvement
in the case until fall. He was away from his office most of August
1991. In September and October he started to interview the [R.]
children and he looked at their videotaped interviews that had
been conducted by Dueck and Bunko-Ruys. Miazga admitted that
he knew that the children were not telling the truth at times
and he said he would admonish them to do so. He never said that
he ever challenged or even seriously questioned the children's
allegations, presumably because he was of the view that doing
so would be inconsistent with what he understood to be the Protocol
guidelines.
[294] He said that he reviewed
the allegations of the children to justify the charges that were
laid against each of the plaintiffs. He in effect went through
the same exercise as did Dueck. That was simply to see if each
of the respective plaintiffs charged with the alleged acts of
sexual assault given by rote by the children had been named as
the perpetrator by at least one of the children. This does not
constitute an investigation or an assessment. All it does is
categorize the allegations. It does not amount to an assessment
of their feasibility or credibility.
[295] It is essential to distinguish
between the abuse allegations made by the [R.] children and those
made by the other children. In general terms, the allegations
of the other children pertain primarily to isolated fondling
incidents that were committed by one or two individuals. The
allegations of the [R.] children pertain to a multitude of bizarre,
serious and disgusting incidents, including a memorized rote
incident, that were repeatedly committed by a large number of
individuals in a random fashion at various places. The truth
of the former kinds of allegations is within the realm of probability.
The truth of the latter kinds of allegations is not even within
the realm of possibility. [296] The rote incident allegation
to which I refer appears literally hundreds of
112
times in the Thompson notes,
the videotaped "disclosures", and in the interviews
and the transcripts of the various court proceedings. If [M.R.
1] was naming a female perpetrator, he would say: "she put
her finger in my bum and touched my penis and I had to put my
penis in her vagina and bum". Often he would add: "and
I had to suck her boobs". If he was naming a male perpetrator,
he would say: "he put his penis in my bum and touched my
penis and I had to suck his penis and put my penis in his bum".
[M.R. 2] and [K.R.] made the same type of rote allegation. If
they were naming a male as the perpetrator, they would say: "he
put his penis in my vagina and bum and I had to put my finger
in his bum and suck his penis". If they were naming a female
perpetrator, they would say: "she put her finger in my vagina
and bum and I had to put my finger in her vagina and bum".
Often they would add: "and I had to suck her boobs".
[297] The [R.] children said
that these incidents took place time and time again in various
rooms of the various homes occupied by the plaintiff Klassen
and Kvello families. Although they did not include things like
the killing of babies as was alleged to have occurred in the
birth home, they did include cutting and burning the children
and drinking blood.
Analysis
[298] Having related the findings
of fact that I made from the evidence and some of the inferences
of fact that I drew from those facts, I move on to apply the
law to these facts and to outline some additional inferences
of fact that I have drawn in connection with the four elements
of malicious prosecution. I have reproduced only those parts
of my previous non-suit judgment that are necessary to give some
context to the legal principles pertaining to a malicious prosecution
action. A more detailed analysis of the law is set out in the
non-suit judgment.
113
The Law Respecting
the Tort of Malicious Prosecution
1. The Classic Elements and
their Definition (Nelles)
[299] The elements of this
cause of action were clearly identified several years ago in
Nelles v. Ontario, [1989] 2 S.C.R. 170 at 193 as follows:
- a) the proceedings must have
been initiated by the defendant;
- b) the proceedings must have
terminated in favour of the plaintiff;
- c) the absence of reasonable
and probable cause;
- d) malice, or a primary purpose
other than that of carrying the law into effect.
[300] The court observed at
p. 193 that the first two elements are straightforward and largely
speak for themselves but went on to comment on the last two elements.
It stated that the third element contains both a subjective element
(an actual belief) and an objective element (a belief that is
reasonable in the circumstances). The court adopted the definition
of reasonable and probable cause set out by Hawkins J. in Hicks
v. Faulkner (1878), 8 Q.B.D. 167 at 171:
. . . "an honest belief
in the guilt of the accused based upon a full conviction, founded
on reasonable grounds, of the existence of a state of circumstances,
which, assuming them to be true, would reasonably lead any ordinarily
prudent and cautious man, placed in the position of the accuser,
to the conclusion that the person charged was probably guilty
of the crime imputed". . . .
114
[301] The court defined at
p. 193 the fourth element as follows: The required element of
malice is for all intents, the equivalent of "improper purpose".
It has according to Fleming, a "wider meaning than spite,
ill-will or a spirit of vengeance, and includes any other improper
purpose, such as to gain a private collateral advantage"
(Fleming, op. cit., at p. 609). . . .
[302] As observed by the court
at p. 199, "malicious prosecution requires proof of an improper
purpose or motive , a motive that involves an abuse or perversion
of the system of criminal justice for ends it was not designed
to serve". It is more than "errors in judgment or discretion
or even professional negligence".
[303] At p. 194, the court
commented on the difficult task facing a plaintiff in a malicious
prosecution action:
By way of summary then, a plaintiff
bringing a claim for malicious prosecution has no easy task.
Not only does the plaintiff have the notoriously difficult task
of establishing a negative, that is the absence of reasonable
and probable cause, but he is held to a very high standard of
proof to avoid a non-suit or directed verdict (see Fleming, op.
cit., at p. 606, and Mitchell v. John Heine and Son Ltd. (1938),
38 S.R. (N.S.W.) 466, at pp. 469-71). Professor Fleming has gone
so far as to conclude that there are built-in devices particular
to the tort of malicious prosecution to dissuade civil suits
(at p. 606):
The disfavour with which the
law has traditionally viewed the action for malicious prosecution
is most clearly revealed by the hedging devices with which it
has been surrounded in order to deter this kind of litigation
and protect private citizens who discharge their public duty
of prosecuting those reasonably suspected of crime.
115
[304] The role of a Crown prosecutor
was described years ago by the Supreme Court of Canada in Boucher
v. R., [1955] S.C.R. 16 at 23-24:
It cannot be over-emphasized
that the purpose of a criminal prosecution is not to obtain a
conviction, it is to lay before a jury what the Crown considers
to be credible evidence relevant to what is alleged to be a crime.
Counsel have a duty to see that all available legal proof of
the facts is presented: it should be done firmly and pressed
to its legitimate strength but it must also be done fairly. The
role of prosecutor excludes any notion of winning or losing;
his function is a matter of public duty than which in civil life
there can be none charged with greater personal responsibility.
It is to be efficiently performed with an ingrained sense of
the dignity, the seriousness and the justness of judicial proceedings.
[305] This definition has been
referred to with approval by the Supreme Court in each of the
Nelles and Proulx v. Quebec (Attorney General), [2001] 3 S.C.R.
9, 2001 SCC 66 decisions.
2. Further Clarification (Proulx)
[306] The Supreme Court of
Canada adopted the Nelles elements and policy considerations
in Proulx. The court held that the circumstances of the case
were exceptional and upheld the damage award granted by the trial
judge in the malicious prosecution action. The court again focussed
on the third and fourth elements of the cause of action and made
some additional comments and findings that further clarify the
nature of such actions. They are summarized as follows:
1. The court must determine
in its opinion, whether the Crown had sufficient evidence to
believe that guilt could properly be proved
116
beyond a reasonable doubt.
Only then would reasonable and probable cause exist to permit
criminal proceedings to be initiated. A lower threshold for initiating
prosecutions would be incompatible with the prosecutor's role
as a public officer charged with ensuring that justice is respected
and pursued. (para. 31)
2. In certain cases involving
the credibility of a key witness, the court may consider why
the prosecutor did not question or scrutinize the credibility
of that wi tness. (para. 43)
3. A prosecutor cannot bootstrap
his own position on the basis of preliminary inquiry committals
or flawed court decisions that were swept away by an appeal acquittal.
This is so because these events post-dated the prosecutor's decision
and were decisions governed by different considerations. (para.
32)
4. The fact that a prosecutor
may have been persuaded of the accused's guilt is not the sole
issue. The question for him when he laid the charge was whether
he could prove it. (para. 18)
5. A prosecutor cannot rely
on consultations that he had with colleagues and superiors if
he knew more about the case than they did. As the holder of an
important office under the Criminal Code, the decision to lay
the charge was his and his alone: R. v. Campbell, [1999] 1 S.C.R.
565. (para. 33)
6. A suit for malicious prosecution
must be based on more than recklessness or gross negligence.
It requires evidence that reveals a willful and intentional effort
on the Crown's part to abuse or distort
117
its proper role within the
criminal justice system. The key to a malicious prosecution action
is malice, but the concept of malice in this context includes
prosecutorial conduct that is fueled by an "improper purpose",
a purpose that is "inconsistent with the status of 'minister
of justice'". (para. 35)
7. There may be various factors
that are indicators of an improper purpose underlying the Crown's
decision to initiate proceedings against the accused. One may
be no more significant than another. In the final analysis, it
is the totality of all the circumstances that are to be considered.
(para. 37)
8. The lack of reasonable and
probable cause may be an indicator of malice in exceptional circumstances,
where in the opinion of the court, no prosecutor acting in good
faith would have proceeded to trial on a serious charge with
such a substandard and incomplete proof. (para. 38)
9. The court must determine
the issue on a balance of probabilities. The question for the
court is what motivated the prosecutor. If it was a simple lapse
of judgment, the plaintiff has no cause of action. But if the
prosecutor allowed his office to be used in aid of another cause,
this is a perversion of powers and an abuse of prosecutorial
power. This constitutes malice in law. It is also malice if the
prosecutor decided to go after the accused to secure a conviction
at all costs and conducted the case with not only "tunnel
vision", but "tainted tunnel vision". In either
case, there would be a flagrant disregard for the rights of the
accused fueled by motives that were
118
improper. (para. 44)
10. In highly exceptional cases,
unless Nelles is to be read as staking out a remedy that is available
only in theory and not in practice, the accused is entitled to
hold the prosecutor accountable in the civil action brought following
the abusive prosecution. (para. 44)
3. Recent Lower Court Decisions
[307] Recent lower court decisions
have elaborated on these third and fourth elements of malicious
prosecution. They are particularly helpful in that they are examples
of how the courts have applied the law to the facts of different
kinds of cases. I have summarized the findings in many of them
because they have precedential application to many of the issues
in the case before me.
[308] In Klein v. Seiferling,
[1999] 10 W.W.R. 554 (Sask. Q.B.), my colleague Klebuc J. dealt
with a case that involved claims of malicious prosecution and
false imprisonment. He reviewed many of the authorities that
I have referred to in the case before me. Many of the factual
issues he was required to deal with were of a similar nature
to those alleged in the case before me. He relied on the comments
of Cory J. in R. v. Storrey (1990), 75 C.R. (3d) 1 at 8-9 (S.C.C.),
respecting what constitutes reasonable and probable grounds in
connection with an arrest empowered by s. 495 of the Criminal
Code. I realize that these comments focus on the right to arrest
as opposed to a malicious prosecution action, but they do give
some insight into the term "reasonable and probable":
(p. 566)
. . . In order to safeguard
the liberty of citizens, the Criminal Code requires the police,
when attempting to obtain a
119
warrant for an arrest, to demonstrate
to a judicial officer that they have reasonable and probable
grounds to believe that the person to be arrested has committed
the offence. . . .
. . .
There is an additional safeguard
against arbitrary arrest. It is not sufficient for the police
officer to personally believe that he or she has reasonable and
probable grounds to make an arrest. Rather, it must be objectively
established that those reasonable and probable grounds did in
fact exist, that is to say, a reasonable person, standing in
the shoes of the police officer, would have believed that reasonable
and probable grounds existed to make the arrest . . .
[Emphasis added]
The Hicks v. Faulkner objective
test approved in Nelles, was applied by Klebuc J. and was quoted
with approval in Dix v. Canada (Attorney General), 2002 ABQB
580, [2003] 1 W.W.R. 436 at para. 354 (Alta. Q.B.).
[309] Klebuc J. allowed the
malicious prosecution and false imprisonment actions against
the police officers. He held that they had no reasonable and
probable grounds because the circumstances would have alerted
a prudent person to proceed cautiously, to make further inquiries,
to question the credibility of the witnesses' statements and
to try to get some corroboration. Numerous inconsistencies in
the evidence of different witnesses were warning signs that would
have lead a prudent person to question the credibility of the
evidence. Information subsequently received would have caused
a reasonable person to reassess the information that was previously
relied upon by the police officers.
[310] Instead, the officers
went into a state of denial. Their desire for recognition by
turning a suicide into a high profile murder, impaired their
skills and judgment. Their
120
haste, lack of concern for
the frailty and inconsistency of the evidence and disregard for
information inconsistent with their objective, were illustrative
of their state of mind. They acted on flimsy and inadequate grounds
and whatever belief they held was not objectively reasonable.
[311] He also held that the
police officers had malice. The manner in which they conducted
their investigation constituted more than mere negligence or
poor judgment. It was so reckless and devoid of reason and respect
for the rights and security of the plaintiffs and the administration
of justice that it was directly and inferentially malicious.
They withheld vital information from the prosecutor regarding
the limitations of a witness which they knew might have a bearing
on his advice and the manner in which the Attorney General would
deal with the plaintiffs. They deliberately ignored the quantity
and quality of the evidence. Their primary motivation for arresting
the plaintiffs, seeking a warrant for the arrest of another plaintiff
and subsequently participating in the prosecution of them, was
so inconsistent with their legal responsibilities and the administration
of justice, that it alone constituted malice.
[312] He dismissed the actions
against the Attorney General, holding that the police officers
misrepresented to the prosecutor that a material witness was
a person with no material limitations or difficulties and thereby
avoided any discussion of whether his information should be questioned.
In like manner the inconsistencies and conflicts in the information
gleaned from other witnesses were never fully disclosed or discussed
with the prosecutor. Thus the police officers knew that the opinion
of the prosecutor was not an informed one based on the facts.
[313] Ritter J. in Dix v. Canada
(Attorney General), supra, determined that the police and prosecutors
lacked reasonable and probable grounds. He stated at para. 356:
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