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Judge George
Baynton's historic judgment, page 5
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It is also not sufficient for
police to simply say they received information and relied upon
it. The police have a duty to explore the reliability of that
information ( Dumbell v. Roberts, [1944] 1 All E.R. 326 (Eng.
C.A.); Campbell v. Hudyma (1985), 66 A.R. 222 (C.A.)).
He also observed at para. 357:
In addition, a police officer
must take into account all the information available. A police
officer is only entitled to disregard that which there is good
reason to believe is not reliable. (Chartier v. Quebec (Attorney
General), [1979] 2 S.C.R. 474 (S.C.C.); R. v. Golub (1997), 34
O.R. (3d) 743 (C.A.), appeal discontinued [1997] S.C.C.A. No.
571 (S.C.C.)).
At para. 368 he states:
By these words [Proulx, para.
34], the Supreme Court has made it clear that the objective element
of the test involves consideration by the Court of the evidence
the police or prosecutor considered or did not consider, and
its evidentiary value at trial. . . .
At para. 376 he states:
Police are not able simply
to pay attention to only that evidence which might serve to incriminate
and to disregard that which might serve to exonerate (Chartier
v. Attorney General of Quebec, [1979] 2 S.C.R. 474). . . .
[314] Ritter J. also determined
that certain of the police and prosecutor defendants had malice.
He considered the issue of whether an absence of reasonable and
probable cause by itself may lead to an inference of malice,
as is the conclusion reached
122
in Oniel v. Metropolitan Toronto
Police Force (2001), 195 D.L.R. (4th) 59 at para. 49 (Ont. C.A.),
leave to appeal dismissed without reasons, [2001] S.C.C.A. No.
121, (2001), 158 O.A.C. 199 (S.C.C.). He states at para. 527:
I am fortified in my conclusion
of the existence of malice on the further basis that prosecuting
in the face of, or disregarding evidence which suggests that
the Plaintiff is probably not guilty of the offence, can, even
if not to a level sufficient on its own to raise an inference
under Oniel, can form one element or factor which can be considered
as going to proof of malice under the fourth part of the test
set out in Nelles and Proulx. . . .
[315] This is the interpretation
placed on this aspect of the Dix v. Canada (Attorney General)
decision by Paisley J. in Gabadon v. Toronto Police Services
Board (2003), 16 C.C.L.T. (3d) 225 (Ont. Sup. Ct. J.). In my
view, proceeding with a prosecution in a case where there is
no reasonable and probable cause may not of itself constitute
malice, but it is certainly evidence from which an inference
of malice can be drawn in an appropriate case. See Lacombe et
al. v. André et al. (2003), 11 C.R. (6th) 92 at para.
86 (Que. C.A.). There is nothing in Nelles or Proulx to suggest
otherwise. Malice can usually be established only by inference
from the other facts and circumstances of the case, including
the conduct of the prosecutor. Proceeding without reasonable
and probable cause is contrary to the law and demands a credible
explanation, failing which the inference of malice can be drawn.
[316] The court observes in
Lacombe et al. v. André et al., supra, at paras. 52-54,
that in cases involving serious charges where the complainant's
credibility is the very crux of the decision-making process of
whether to lay charges, an investigation must take into consideration
all the information available. The court held that a more thorough
investigation would have made it possible to cast serious doubt
on the authenticity of the
123
charges and would have allowed
the prosecutor to make a more informed decision.
[317] In cases involving defendants
other than police officers and prosecutors, the law is not clear
as to what circumstances must be established before these other
classes of defendants can be found to "initiate proceedings"
within the meaning of the first element of malicious prosecution.
Successful malicious prosecution actions have been brought against
persons other than police officers or prosecutors. In Romegialli
v. Marceau (1963), 42 D.L.R. (2d) 481 (Ont. C.A.), the court
stated at p. 482:
. . . The gist of an action
for damages for malicious prosecution is that it is an abuse
of the process of the Court by wrongfully setting the law in
motion on a criminal charge. . . .
[318] Walker J. in Berman v.
Jenson (1989), 77 Sask. R. 161 at 163 (Q.B.) stated:
. . . The defendant must have
been "actively instrumental" in setting the law in
motion. Simply giving a candid account, however incriminating,
to the police is not the equivalent of launching a prosecution.
The critical decision to prosecute is not that of the private
person. . . .
[319] Failing to give a frank
and candid account of events to police or participating in or
interfering with the investigation and prosecution, may attract
liability. Hinde v. Skibinski (1994), 21 C.C.L.T. (2d) 314 (Ont.
Gen. Div.). A person may "institute proceedings" by
giving information to the police which the person knew or ought
to have known was false, misleading or incomplete or was given
for reasons of malice. Samuel Manu-Tech Inc. v. Redipac Recycling
Corp. (1998), 66 O.T.C. 16 at para. 32 (Gen. Div.). Such a defendant
may be liable if the inevitable result of his or her
124
conduct is such that a charge
will be laid against the plaintiff. Fitzjohn v. Mackinder (1861),
9 C.B.N.S. 505 (Eng. Ex. Ct.).
[320] In Wood v. Kennedy (1998),
165 D.L.R. (4th) 542 (Ont. Gen. Div.), the court observed at
p. 561:
. . . The nature of her allegations
was such that it was difficult, if not impossible, for the police
to exercise any independent discretion or judgment, and in the
circumstances, the police had little choice but to charge Robert
Wood.
[321] In the recent case of
Small v. Newfoundland, 2003 NLSCTD 90, (2003), 227 Nfld. &
P.E.I.R. 1 at para. 103 (S.C.(T.D.)), the court adopted the statement
in Clerk & Lindsell on Torts, 18th ed. (London: Sweet &
Maxwell, 2000) at para. 16-12: This first element, initiation
of the proceedings, was not discussed by the Supreme Court of
Canada in Nelles or Proulx. Whether an informant can be held
responsible for initiating a prosecution when police act on information
offered was considered by the House of Lords in Martin v. Watson,
[1996] A.C. 74. That case established that a person who gives
information to the police on the basis of which a decision to
prosecute is made by the police will not be liable for malicious
prosecution unless:
(1) The defendant falsely and
maliciously gave information about an alleged crime to a police
officer stating a willingness to testify against the claimant
and in such a manner as makes it proper to infer that the defendant
desired and intended that a prosecution be brought against the
claimant.
125
(2) The circumstances are such
that the facts relating to the alleged crime are exclusively
within the knowledge of the defendant so that it is virtually
impossible for the police officer to exercise any independent
discretion or judgment on the matter.
(3) The conduct of the defendant
must be shown to be such that he makes it virtually inevitable
that a prosecution will result from the complaint. His conduct
is of a nature that "1/if a prosecution is instituted by
the police officer the proper view of the matter is that the
prosecution has been procured by the complainant".
The Law Respecting
the Tort of Conspiracy
[322] Under the heading "Civil
Conspiracy" at para. 11 of her judgment in Stillwater Forest
Inc. v. Clearwater Forest Products Ltd. Partnership, 2000 SKQB
110, [2000] S.J. No. 211 (Q.B.), Pritchard J. sets out the elements
of the tort of conspiracy: [11] At page 265-266 in The Law of
Torts in Canada, Vol 2 (Toronto: Carswell, 1990) Fridman summarizes
the three distinct situations that can give rise to the tort
of conspiracy:
In modern Canada, therefore,
conspiracy as a tort comprehends three distinct situations. In
the first place there will be an actionable conspiracy if two
or more persons agree and combine to act unlawfully with the
predominating purpose of injuring the plaintiff. Second, there
will be an actionable conspiracy if the defendants combine to
act lawfully with the predominating purpose of
126
injuring the plaintiff. Third,
an actionable conspiracy will exist if defendants combine to
act unlawfully, their conduct is directed towards the plaintiff
(or the plaintiff and others), and the likelihood of injury to
the plaintiff is known to the defendants or should have been
known to them in the circumstances . . .
The Law Respecting
Collateral Causes of Action
[323] The "collateral"
causes of action alleged by the plaintiffs consist of s. 24 remedy
claims for alleged breaches of their rights under the Charter,
for abuse of "power" (public office), for negligence,
including negligent investigation, and for conspiracy to injure.
[324] Some of the causes of
action collateral to a malicious prosecution action, such as
abuse of public office, breach of Charter rights and conspiracy
to injure, are for policy reasons, subsumed into the malicious
prosecution cause of action and do not exist as stand alone causes
of action.
[325] In Dix v. Canada (Attorney
General), supra, Ritter J. dismissed the "collateral"
causes of action brought by the plaintiff consisting of s. 24
remedy claims for alleged breaches of his rights under the Charter,
for abuse of public office, for negligence, including negligent
investigation, for abuse of process, for conspiracy and for false
imprisonment. He found that certain of the defendants had breached
several Charter rights of the plaintiff. At para. 553, he held
that even though a situation may exist where there is a breach
of a Charter right which occurs in circumstances of mala fides
and which does not equate to malicious prosecution, he did not
need to determine that issue because the plaintiff was not left
without a remedy for breaches of his Charter rights. His
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remedy for those breaches was
subsumed within and awarded by means of his cause of action for
malicious prosecution.
[326] At para. 554, Ritter
J. observed that if the claim for abuse of public office is made
out, so is the claim for malicious prosecution. He was also of
the view that the converse was true so that the claim was subsumed
within malicious prosecution claim once it had been established.
This is so because it involves the same conduct alleged in each
separate cause of action.
[327] The abuse of process
cause of action is also subsumed. At para. 580, Ritter J. concludes
that the abuse of process cause of action is a repetition of,
or is subsumed within, the malicious prosecution action and award.
Having more than one cause of action with duplicate constituents
does not increase the plaintiff's award because he can be awarded
damages only once for the same conduct. He reaches the same conclusion
at para. 581 respecting the conspiracy claim.
Application
of the Law to the Facts
[328] For the reasons which
follow, I am satisfied that the plaintiffs have established on
a balance of probabilities that they were maliciously prosecuted
by each of the defendants, Miazga, Dueck and Bunko-Ruys.
[329] I need not comment further
on the collateral causes of action respecting these three defendants
because the collateral causes of action are subsumed within the
malicious prosecution action that the plaintiffs have successfully
proven. [330] For the reasons set out later in this judgment,
I am not satisfied that the plaintiffs have established that
they were maliciously prosecuted by Hansen, so none of
128
the collateral causes of action
apply to her. The conspiracy to injure alleged by the plaintiffs
names Dueck and Bunko-Ruys only. As well, it was not sufficiently
plead or pursued at trial.
[331] On the basis of the case
law cited and the reasons I have outlined, all the collateral
causes of action, including conspiracy, that are claimed by the
plaintiffs are dismissed against all the defendants.
[332] I now move on to set
out my reasons for concluding that the plaintiffs have proven
that the three defendants maliciously prosecuted them. I will
deal with each of the four elements of the tort of malicious
prosecution in turn.
1. The Initiation
of the Proceedings Element
[333] Neither Dueck nor Miazga
took much issue with this element. Dueck conducted the investigation,
obtained Miazga's advice and swore the informations. Miazga took
the case and was prepared to prosecute it all the way to trial
if the children had not been too "traumatized" to continue.
[334] Understandably, Bunko-Ruys
does take issue with this element. She was a child care worker
and a child therapist, not an investigating police officer or
a prosecutor. I was not able to find any case in which a child
care worker or a therapist has been found liable for malicious
prosecution. But nor could I find a case in which a child care
worker or therapist became so integrally involved in an investigation
or prosecution. Bunko- Ruys did not testify herself but the plaintiffs
read in most of her testimony given at her examinations for discoveries
in which she valiantly tried to distance herself from her involvement
in the investigation and the prosecution. Each of the other defendants
testified that she had no role in laying the charges or in prosecuting
the charges. But the
129
facts and their conduct belie
these bald statements. Bunko-Ruys took a very active role in
the whole matter, a role far broader than simply performing her
duties as a child care worker or a child therapist.
[335] Until she became involved
with the [R.] children in October 1989, they had made no "disclosures"
of abuse. In fact, all three [R.] children denied any abuse even
though they were interviewed by Dueck who was adept at getting
"disclosures". By her own evidence at the criminal
trial, Bunko-Ruys said it took her a year to get "disclosures"
from [M.R. 1] and six months to get "disclosures" from
[M.R. 2]. But [M.R. 1] began to make "disclosures"
to the Thompsons in March or April of 1990 and he was taken in
May 1990 by Social Services to be interviewed by Schindel. Social
Services was upset by Schindel's assessment and the fact he had
not begun an investigation. [M.R. 1] was then taken within a
day or two to Bunko-Ruys to be "reassessed" and he
made some more "disclosures" to her. [M.R. 2] also
made "disclosures" to her long before six months. The
testimony of Bunko-Ruys on this issue is not credible.
[336] The "reassessment"
by Bunko-Ruys in reality replaced police officer Schindel as
the investigator of [M.R. 1]'s allegation of abuse. It was on
the basis of her reassessment of Schindel's assessment that the
child apprehension operation I referred to previously was set
in motion and the investigation to gather evidence continued.
But Social Services and Bunko-Ruys did not want to risk a repeat
performance at the police station. This time they contacted Dueck,
not to interview [M.R. 1], [M.R. 2] or [K.R.], but to coordinate
the investigation of Bunko-Ruys and Marilyn Thompson which was
already underway.
[337] Dueck met informally
with the children on June 5, 1990 at Taco Time, but he deliberately
avoided interviewing them even though [M.R. 1] told him he had
a lot more to tell him about sexual abuse. Rather than taking
the "disclosures" of the children
130
at that time, or at least within
a reasonable time, which is what would be done in the normal
course of events, Dueck deferred interviewing the children for
over four months until October 1990. He testified that he deferred
his interviews so that Bunko-Ruys could work with the children
until she felt they were ready from an emotional perspective
to be interviewed by him. But it is evident that the primary
object of this whole exercise by Dueck and Bunko-Ruys and likely
Social Services was not to rehabilitate the children through
therapy. Rather it was to defer the investigation until more
"disclosures" could be obtained to provide evidence
on which criminal charges could be laid and prosecuted against
the perpetrators named in the "disclosures".
[338] Dueck knew that the children
had made bizarre abuse allegations to the Thompsons that had
implicated numerous individuals. He also knew that Bunko-Ruys
had obtained "disclosures" and that she likely could
obtain further "disclosures". Both he and Bunko-Ruys
knew that further "disclosures" were also being made
by the children to Marilyn Thompson and that she would continue
to pass these disclosures on to them. Dueck had taken out an
occurrence report number but never completed his occurrence report
until almost a year later in April 1991. Even after the interviews
of the [R.] children had been completed in the late fall of 1990,
Dueck had not filed any information or report with central records
at the police station respecting "his" investigation
into their abuse allegations. These procedures followed by Dueck
were not in accordance with the procedures usually followed by
other police officers.
[339] Dueck and Bunko-Ruys
and various Social Services officials and personnel attended
one or two ritual and satanic abuse seminars in Saskatoon. No
one had any explanation as to why a topic of this nature would
merit at least two seminars. Hinz testified that in 1991 there
was a perception about satanic abuse. This might explain the
seminars. But it might also explain what the perceptions of Dueck,
Bunko-Ruys and certain Social Services personnel may have been
about the case they were developing.
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[340] Bunko-Ruys met on numerous
occasions with the [R.] children and with Dueck during this four-month
period. When she pronounced that the children were finally "ready"
for their videotaped interviews, they were conducted jointly
by Dueck and Bunko-Ruys. Although Dueck took the lead, by his
own evidence, Bunko-Ruys was there to ask follow-up questions.
The hours and hours of videotaped interviews bear this out. She
and Dueck portrayed themselves to the children as part of the
"team" and they engaged the children in discussions
about what would happen to their alleged perpetrators. I am satisfied
that by this time, the decision had been made to charge the plaintiffs.
All that remained was to record the evidence from the children
on videotape. Donald Mullord, one of the defence counsel at the
[R.], [R.] and White trial, observed that in one of the interviews
of [M.R. 2], Dueck asked 345 questions while Bunko-Ruys was a
fairly close second in asking 240 questions. I acknowledge that
I did not count the questions to verify this observation, but
I did view all the child interviews and the observation of Donald
Mullord is consistent with my recollection of the degree of Bunko-
Ruys' active involvement in the interviews.
[341] The active involvement
of Bunko-Ruys in the police investigation did not end with the
laying of the charges. She became significantly involved in the
prosecution of the charges as well. I mention this even though
usually events that take place after the charges have been laid
are not matters that are relevant to whether a person played
a part in the initiation of the proceedings against the plaintiffs.
But it characterizes the real role she was playing in this case
from its inception to its finalization. It refutes her claims
that her role was simply that of a therapist of the children.
This is substantiated in part by the fact that for some time,
she was retained and paid by the Justice Department, not Social
Services.
132
[342] She had numerous meetings
and telephone calls with Miazga, some before the charges were
even laid. Although she did not participate in Miazga's interviews
of the children, she did attend his office on occasion. She was
the primary advisory and evidentiary resource utilized and relied
upon by the prosecutors in each of the three court proceedings
in their quest for the special concessions for the children that
I outlined previously. As an example of her interest and involvement
in the case, she authored a memo to the prosecutors respecting
her role in recruiting Dr. Zillah Parker, a psychiatrist to work
with her in viewing the tapes, a matter that pertained to the
evidence of the children, not their therapy. She states:
- Zillah is going to be a great
help . . . call me about details
- I am feeling better
after meeting with her today and
- yesterday she requests
to view the tapes with me I need
- copies for early next week
O.K.
- home later 343-8775
- The sun is shinning (sic)
[343] Bunko-Ruys was also tendered
by Miazga as a witness in each of the three court proceedings
and was qualified as an expert in the area of identification
and treatment of sexually abused children. She testified that
she met [M.R. 1] in October 1989 and [K.R.] and [M.R. 2] in June
1990. She saw the children on average once or twice per week.
She obtained "disclosures" from each of them. She testified
that the children were very agitated and fearful to come to court,
that they were "quite terrorized", and unlike most
children, they did not want to see their parents. They were filled
with guilt, shame and embarrassment. [M.R. 1] and [M.R. 2] had
to be supervised in class at school and all three had to be supervised
at all other times because of their "touching problems"
with each other and with other children. In her opinion, each
of the [R.] children had been sexually abused and had experienced
"extreme" trauma.
133
[344] As I outlined previously,
the opinion evidence Bunko-Ruys gave as an expert in child care
was tendered to demonstrate that the sexually inappropriate conduct
of the children between themselves and others was, of itself,
a strong indication that they had been sexually abused. What
is particularly unfortunate is that the prosecution then focused
on calling evidence to establish that the children acted out
sexually, a fact that was not in dispute and was only too well
known to all the parties at that stage of the proceedings. The
subtle inference was that proof that the children had been abused
was proof of the abuse allegations of the children and, in turn,
proof of the offences charged. Bunko-Ruys carried out all of
these functions knowing full well that 16 people had been branded
as pedophiles and were facing significant jail terms on the basis
of the incredible "disclosures" of the children that
she was supporting at all stages of the investigation and prosecution.
[345] The professional status,
experience and expertise attributed to Bunko-Ruys, and her prominence
as a primary witness in each of the three criminal proceedings,
lent credibility not only to the children's allegations, but
also to Dueck's investigation, the prosecution conducted by Miazga
and Hansen and the court testimony of the children. I am satisfied
that but for the involvement of Bunko-Ruys, the plaintiffs would
never have been charged and even if charges had been laid, the
prosecutors would never have proceeded with the court hearings.
I conclude that Bunko-Ruys was instrumental in initiating and
maintaining the criminal proceedings against the plaintiffs.
[346] As a final comment in
this regard, I conclude that some of the testimony Bunko-Ruys
gave at the court proceedings was not credible. In fairness to
her, she likely confuses fantasy with reality for she repeatedly
testified that her role was to "support the children in
expressing their perceptions" and that it mattered not whether
those perceptions had any basis in reality. The [R.] children
testified at the trial before me that they never requested all
the special arrangements that were made for them. They refuted
134
just about everything else
Bunko-Ruys said about them in her testimony in the criminal proceedings.
[347] It was evident from the
testimony given by the [R.] children at the court proceedings
that none were traumatized in the least until they were gently
confronted by defence counsel who had the temerity to question
their perceptions. [M.R. 1] eventually got his way and was permitted
to look at his parents behind the screen. At least one of the
other children made the same type of request. It is evident from
their comments and the number of requests that they made for
breaks, that each of the [R.] children became easily bored with
the proceedings
[348] I am satisfied that Bunko-Ruys,
as well as Dueck and Miazga, initiated the proceedings against
the plaintiffs within the meaning of the case law I have cited.
2. The Resolution
of the Proceedings in Favor of the Plaintiffs Element
[349] Although the defendants
took no issue with this element on the non-suit application,
they did take issue with it in their final arguments at the conclusion
of the trial. They maintain that although all the charges were
stayed by the Crown against the plaintiffs, they were stayed
as part of a plea bargain in which Peter Klassen pled guilty
to four counts of sexual assault as outlined previously. The
case law cited by the defendants establishes that if multiple
criminal charges are resolved against a plaintiff by means of
a combination of stays and guilty pleas, the proceedings are
not resolved in favor of that plaintiff within the meaning of
the second requirement of a malicious prosecution action. [350]
But counsel for the defendants frankly admit that none of these
cases is directly on point and as well, that all pertain to a
plea bargain entered into between the Crown and the individual
who has pled guilty. Here, none of the plaintiffs pled guilty
to
135
anything. It was Peter Klassen,
not one of the plaintiffs in this action, who pled guilty to
some of the charges brought against him. He was represented by
Jay Watson, a lawyer who does not act for and never did act for
any of the plaintiffs with the exception of Marie Klassen, the
wife of Peter Klassen. Nothing that Jay Watson or Peter Klassen
did could commit the other counsel or their clients to any plea
bargain involving them without their consent. Likewise nothing
Peter Klassen did could bind his wife, Marie, to any plea bargain
involving her without her consent. Nor was Peter Klassen's guilty
plea given in exchange for stays by the Crown respecting any
of the charges brought against any of the plaintiffs.
[351] The defence counsel involved
in the criminal proceedings taken against the defendants were
Robert Borden, Daryl Labach and Jay Watson. The latter two testified
at the trial before me. From their testimony it is clear that
no deal was made between the Crown and the plaintiffs respecting
any plea bargain. Each of their clients adamantly maintained
his or her innocence from the outset of the proceedings. Each
declined to enter into any plea bargain by which he or she would
plead guilty to one charge in exchange for stays entered by the
Crown of his or her remaining charges. The plaintiffs' unequivocal
instructions to their respective counsel were to proceed to trial.
[352] It is trite law that
a "bargain" or contract pertains only to those who
are party to it. The parties to a bargain cannot impose obligations
on someone who is not a party to that bargain. I am satisfied
from all the evidence I read and heard on this issue, that none
of the plaintiffs was a party to the plea bargain between the
Crown and Peter Klassen.
[353] It appears from the evidence
and from the views held by the parties and their counsel, that
the only valid sexual abuse complaint against Peter Klassen was
that made by C.H. She appeared to be the only complainant who
was credible and her
136
complaint pertained to Peter
Klassen only. Jay Watson testified that his client Peter Klassen
denied assaulting any of the [R.] children but pled guilty to
one count respecting each of them just to get it over with. He
had a previous unrelated conviction for a similar fondling type
of sexual assault as was alleged by C.H. which weighed heavily
against him. It may be that part of his motivation for pleading
guilty to these three counts and the count respecting C.H. was
a desire to induce the Crown to stay the charges against the
plaintiffs. But obviously his guilty plea pertained only to assaults
alleged against him and him alone. It did not in any way involve
any of the assaults alleged against any of the plaintiffs nor
could it absolve them from any moral or legal culpability for
the assaults alleged against them.
[354] As a final observation
on this issue, I am convinced that the Crown stayed the charges
against the plaintiffs, not because of Peter Klassen's guilty
plea, but because the Crown was left with no case to pursue against
the plaintiffs. The prosecutors and their superiors tried valiantly
to obtain a guilty plea from even one of the plaintiffs in exchange
for the stays of all the other charges against them. The tentative
offer was flatly rejected by all the plaintiffs. Despite a trip
by the prosecutors to Regina and a subsequent trip by Miazga
to Regina, all efforts to obtain guilty pleas from the plaintiffs
failed. Even though this failure made it more difficult for the
prosecutors and their superiors to explain to the public and
the media why stays were entered on all the charges brought against
10 adult pedophiles, the Crown nevertheless entered the stays.
In press releases that were carefully crafted, the traumatization
of the children by the proceedings was relied upon as the justification
for abandoning the criminal proceedings against all these pedophiles.
For these reasons, I reject this submission of the defendants
on this issue. [355] I am accordingly satisfied that the criminal
proceedings have terminated in favour of the plaintiffs within
the meaning of the case law I have cited.
137
3. The Absence
of Reasonable and Probable Cause Element
[356] This element of malicious
prosecution involves two sub-elements: a subjective element and
an objective element. I previously outlined the evidence I have
considered that pertains to the subjective and objective beliefs
of the defendants respecting the allegations of the [R.] children.
I have also outlined the vast difference between the nature and
substance of their allegations and those of the allegations of
the other child complainants. I will deal first with my conclusions
respecting the subjective considerations that apply to the charges
based on the allegations of the [R.] children.
[357] The issue is whether
the defendants had an honest belief that the plaintiffs were
probably guilty of the crimes they imputed to the plaintiffs.
The term "probably" simply means more likely than not.
To my recollection, not one of the defendants ever said that
he or she had an honest belief in the probable guilt of the plaintiffs.
In any event, what would such a statement mean? Would it mean
a belief that each plaintiff was guilty of each count charged
respecting each complainant? Or would it mean a belief that each
plaintiff was guilty of one of the counts charged respecting
one of the complainants? All the defendants however did say that
they "believed the children" whatever that may mean
in the circumstances of this case.
[358] All the defendants testified
in one forum or another to the effect that the children told
them lies and fabricated stories on occasion. All of them said
they did not believe everything that the children alleged. Dueck
and Miazga said they disbelieved all the ritualistic and satanic
abuse allegations of the children. These allegations were a substantial
component of the children's "disclosure" allegations
and the evidence they
138
gave in court. None of the
defendants has ever clarified just what it is that he or she
did believe of the various allegations made by the children.
The testimony of each of the defendants that "I believed
the children" is meaningless when each defendant has testified
that he or she has been lied to by the children and does not
believe a substantial number of their allegations.
[359] Neither Dueck or Miazga,
with few exceptions, was prepared to say with any degree of certainty
what he could remember about his state of mind or beliefs about
the children's allegations at specific times. In some of those
instances in which they did give direct evidence as to what they
disbelieved about the children's allegations, I find that evidence
to be inconsistent with the circumstantial evidence of those
beliefs that can be inferred from the direct evidence of their
respective conduct.
[360] In the case of Bunko-Ruys,
if her testimony is taken at face value, she did not even address
the issue of her belief of the children's allegations. In her
testimony in her examination for discoveries' read-ins and in
the testimony she gave in the criminal court proceedings, she
says that it was not her role to make judgments as to whether
what the children were "disclosing" was true. Nor was
it her role to help the children differentiate between their
perceptions and reality. Her role was simply to support the children
in expressing their perceptions, whatever they might be. But
she too, had to acknowledge that the children routinely lied
to her. In order to make that determination she obviously had
to make judgments about the truth of their statements.
[361] Again, I seriously question
the credibility of the evidence that Bunko-Ruys gave about the
proper role of a therapist in responding to "disclosures"
of children that are incredible or inconsistent with reality.
She said that she would not question or challenge such "disclosures"
and was of the view that she had no obligation even to the child
who made the "disclosures" to try and correct the erroneous
perception. This flies in
139
the face of the expert opinion
evidence given by Dr. Santa Barbara, the psychologist called
by the Crown that I referred to previously. It also flies in
the face of the expert opinion evidence given by [M.R. 1] Elterman,
the psychologist called by the defence. Both of them were of
a totally opposite view to that expressed by Bunko-Ruys. This
illustrates the difficulty that Bunko-Ruys got herself into when
she undertook to expand her role as a therapist to include holding
herself out to give expert advice on matters that were outside
her expertise and in the exclusive domain of psychiatrists and
psychologists.
[362] I am satisfied that none
of the defendants believed many of the [R.] children's allegations.
As the case against the plaintiffs was based solely on these
allegations, it is difficult for me to accept that any of the
defendants honestly believed in the guilt of each of the plaintiffs
respecting each of the offences charged against them. The evidence
overwhelmingly points to the opposite conclusion. Even if each
defendant had testified that he or she believed that each of
the plaintiffs was guilty of each of the offences charged, I
could not have accepted such evidence as truthful in the face
of the unique circumstances of this case and the circumstantial
evidence of belief.
[363] I am satisfied by all
the evidence on this issue that the defendants did not have an
honest belief that the plaintiffs had committed the assaults
alleged by the [R.] children nor did they have an honest belief
that the plaintiffs were guilty of the offences charged against
them. In my view, the subjective belief held by each of the defendants
was that the children had been sexually abused and that one or
more of the 12 plaintiffs who were charged must have done it.
I need not comment on what belief the defendants may have had
respecting the [R.], [R.] and White allegations because those
individuals have not brought a malicious prosecution action and
the evidence that pertains to them is quite different than that
which pertains to the plaintiffs.
140
[364] Having commented on the
subjective considerations, I now move on to comment on the objective
considerations. It is not enough that the defendants had an honest
belief in the guilt of the plaintiffs as charged. Any honest
belief of the defendants had to be founded on reasonable grounds.
In other words, on a state of circumstances that would reasonably
lead any ordinarily prudent and cautious person, placed in the
position of the defendants, to the conclusion that the plaintiffs
were probably guilty of the crimes imputed to them by the defendants.
The requirement for an objective consideration is an essential
element in a free and democratic society where individuals are
presumed innocent until proven guilty. No one, including a police
officer or a prosecutor, can cause serious criminal charges to
be brought against an individual absent reasonable and probable
grounds to support an honestly held belief that the individual
has committed the offences charged.
[365] Were it not so, any innocent
person could be subjected to serious and lengthy criminal proceedings
by an individual who holds an honest but irrational belief that
the person is guilty of a criminal offence. Fortunately most
people are not irrational and do not form beliefs about the criminal
liability of others that are strong enough to motivate them to
lay criminal charges unless their beliefs are supported by reasonable
and probable grounds. This is why persons who charge others without
reasonable and probable grounds to do so, usually act out of
malice.
[366] I will not repeat the
numerous facts that I previously related to demonstrate the absence
of reasonable and probable grounds at any stage of this case
upon which any of the defendants could have based an honest belief
that the plaintiffs were guilty of all the offences charged against
them. In general terms, the charges were brought solely on the
allegations of the three dysfunctional [R.] children who were
known to be untruthful and who demonstrated that they were witnesses
who lacked credibility. The independent physical signs of abuse
referred to in the Yelland medical reports did not point to the
141
plaintiffs. They pointed to
sexual activity between the children themselves and to experiences
encountered before they were ever in the Klassen home. Nor was
any independent physical evidence found by the police "investigation"
that should have been available to support some of the bizarre
allegations that the children made if the allegations of the
children were substantially true.
[367] The allegations of the
other children from whom "disclosures" were obtained
by the time the initial charges were laid, were of such a different
nature that they tended to refute rather than support the allegations
of the [R.] children. Some of those children who disclosed abuse
by one of the plaintiffs denied any abuse by the other plaintiffs.
Yet the [R.] children claimed they had witnessed the abuse that
was denied by the other children. Some of the incidents that
were "disclosed" by the other children were so capable
of misinterpretation by a young child that they should never
have been relied upon as a sexual assault. An example is the
allegation of M.K. that his foster mother touched his dinky and
his bum with a washcloth when he was four years of age.
[368] Not only was there no
corroboration or independent support of the allegations made
by the [R.] children, the nature of their allegations alone was
so unbelievable as to be patently absurd. This is so even if
the ritualistic and satanic aspects of their allegations are
ignored. If their allegations against the 12 plaintiffs are believed,
young couples with their own families to care for were routinely
abusing the [R.] children in the same rote manner in different
houses practically every time the children visited. The other
adults who were present must have been oblivious to all these
goings on even though the children lined up at the bedroom door,
as if in a theatre lineup, to await their turn with one of the
plaintiffs. As an example, [M.R. 2] testified at the Klassen
- Kvello preliminary inquiry that after abusing her in the rote
fashion she uses to describe sexual abuse, Dennis Kvello never
put his pants back on until he had performed the same rote abuse
on one after the other of the eight or more children lined up
at the bedroom door.
142
[369] Although the same children
say they were present at many of these incidents, some testified
to things happening that would have been seen by the others.
Yet the others said such things never occurred. Many of the allegations
were highly improbable and next to impossible. The sheer number
of perpetrators acting in almost exactly the same fashion is
of itself almost incapable of belief without some plausible explanation,
such as the perpetrators being members of some strange and evil
cult. Not only was there no such explanation, but the defendants
have testified that they did not believe this to be so. Hansen
laughed when asked by Robert Borden in cross-examination at the
trial before me if anyone had suggested to her that the plaintiffs
were associated with a satanic cult.
[370] A significant amount
of exculpatory evidence was ignored by the defendants that tended
to show the absence of reasonable and probable grounds for believing
that the plaintiffs had committed the offences alleged. Although
each piece of evidence is not conclusive and might be capable
of being explained away, the cumulative effect of the exculpatory
evidence is significant. It is beyond dispute that not one of
the natural children of the plaintiffs was abused. Despite numerous
physical examinations conducted on behalf of Social Services
on many of the natural children of the plaintiffs on different
occasions, there was not one shred of evidence to indicate that
any of them had been sexually or physically abused. This was
so even though some of the [R.] children alleged that some of
these natural children were sexually abused by their parents
and that some of them were involved in sexual relations with
the [R.] children.
[371] It is also beyond dispute
that Anita Klassen on her own initiative reported to Social Services
the potential sexual abuse incident involving [M.R. 2] and her
father that I related previously. Had Anita Klassen and her family
been routinely abusing the children as alleged, it is highly
improbable that she would have risked the physical
143
medical examination and the
police investigation into the incident that she knew would follow
and which did follow. The fact that Miazga presented her at the
[R.], [R.] and White trial as a Crown witness respecting this
incident, suggests that he believed she was credible and that
[M.R. 2] had been assaulted, not in Dale and Anita Klassen's
home, but in her natural parents' home.
[372] The defendants closed
their eyes to the obvious inference that the i ncreased evidence
of sexual abuse on [K.R.] and particularly [M.R. 2], as disclosed
by the Yelland 1990 and 1991 medical reports, was caused by the
continued sexual assaults by [M.R. 1] on his sisters in the Thompson
home, in their yard, at school and in Bunko-Ruys' office. The
evidence of abuse in the 1990 reports respecting examinations
done at a time when [M.R. 1] had not been with his sisters in
the Dale and Anita Klassen foster home for about six months,
did not rule out his responsibility for the presence of old healed
tears in their vaginal and anal areas which were more than three
to six months old and likely older. The only potential recent
evidence of abuse was that [K.R.] had an itchy bum and [M.R.
2]'s vagina was red. Neither condition confirmed sexual abuse
by the Klassens. The evidence of prior abuse pointed more toward
abuse in the birth home. This was the thrust of Miazga's case
against [R.], [R.] and White.
[373] There is also evidence
of the willingness of most of the plaintiffs to submit themselves
to videotaped police interviews by Dueck without the benefit
of counsel. Despite an aggressive grilling and the use of police
interview techniques by Dueck, each one who was interviewed emphatically
denied the allegations of abuse. Although the conduct and demeanour
of a person is not determinative of credibility, the plaintiffs
did appear in their videotaped interviews to be honest, forthright
and truthful. By stark comparison, this was totally lacking in
the demeanour of the [R.] children in their videotaped interviews.
144
[374] Another piece of exculpatory
evidence is the concern expressed to Social Services on September
29, 1988 by Diane Kvello, one of the plaintiffs, respecting the
three foster children, S.W.H., aged 6, S.E.H., aged 3, and S.L.H.,
aged 2, that had been placed in her home. She was concerned because
of the sexualized behaviour exhibited by the boy, the foul smell
of the genitals of the two girls and their aversion to having
their "bottoms wiped". She took the children to Dr.
Anne McKenna for a physical examination for potential sexual
abuse.
[375] In her November 25, 1988
report to Social Services, Dr. McKenna observed respecting the
boy: "The penis was normal with no evidence of infection
or trauma. Examination of the rectum revealed a tight anal sphincter.
There was no evidence of previous trauma." She observed
that the three-year-old girl had " . . . an intact hymen
and no evidence of infection or trauma. Rectums appeared normal."
She noted that the youngest girl had been "having intermittent
problems with constipation since the age of 9 months. The hymenal
ring was intact. There was no evidence of recent trauma or infection."
Her understanding was that the children had made no disclosures
of sexual abuse. The report contained the usual qualifier: "There
are no physical findings of sexual abuse. This does not imply
that sexual abuse has not occurred."
[376] Again, it is highly unlikely
that an abuser would, on her own initiative, express a concern
to Social Services knowing that she would then be required to
take all her foster children to be physically examined for potential
sexual abuse. It is also significant that none of the children
exhibited evidence of sexual abuse despite the wild allegations
of the [R.] children about groups of children being abused by
the Kvellos in their home.
[377] Another piece of exculpatory
evidence is the undisputed fact that, for at least a year before
[M.R. 1] left their home, Dale and Anita Klassen had been requesting
145
Social Services to remove him
because they could no longer handle him. Again, it is improbable
that people who are routinely abusing children would make such
a request knowing that it not only would precipitate an increase
in the attention paid by Social Services to their home, but also
would involve an investigation, an interview, more therapy and
likely a physical examination. This is what in fact occurred.
[378] I am satisfied on a consideration
of the evidence as a whole, that there were no reasonable grounds
on which the defendants could base an honest belief in the probable
guilt of the plaintiffs of the crimes charged against them. I
am also satisfied that the three defendants did not have reasonable
and probable cause to initiate and continue the proceedings against
the plaintiffs within the meaning of the case law I have cited.
4. The Presence of Malice Element
[379] This is likely the most
difficult issue raised by the case. I previously reviewed the
cases that define and elaborate upon this element. The defendants
contend that the plaintiffs must prove they acted dishonestly
in order to establish this element of a malicious prosecution
cause of action. I reject this contention if the defendants interpret
the concept of dishonesty narrowly to exclude all improper or
unlawful conduct except serious misconduct such as fabricating
evidence or accepting a bribe. The case law I have cited, particularly
the recent case law, does not equate the concept of malice with
a narrow interpretation of dishonesty. A much broader interpretation
is given to the concept of malice as an essential element of
a malicious prosecution cause of action.
[380] The comments of Klebuc
J. in Klein v. Seiferling, supra, at paras. 67 and 70 are instructive:
146
67 The manner in which the
Officers conducted their investigation constitutes 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 directly and inferentially
was malicious. They withheld vital information from Connelly
regarding Weist's limitations 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 . . . These factors and those previously
noted in my view establish malice of the character contemplated
in Nelles, supra. In addition, Seiferling's and Turcotte's primary
motivation for arresting Klein, Kozar and Moore and seeking a
warrant for the arrest of Ransom and their subsequent participation
in prosecuting them was so inconsistent with their legal responsibilities
and the administration of justice that it alone constitutes malice.
. . .
70 . . . the Officers represented
Weist to be 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 Lawrence and Weist
were never fully discussed with Connelly. Thus they knew Connelly's
opinion was not an informed one based on the facts. . . .
[381] Some of the cases I cited
hold that in extraordinary circumstances, laying criminal charges
and proceeding with the prosecution of them in the absence of
reasonable and probable cause, can of itself constitute malice
or at least constitute an indication of malice. Surely if a malicious
prosecution case with extraordinary circumstances exists, it
is the case before me. It is a high profile case that charged
many individuals with serious criminal offences. It had the potential
to visit disastrous consequences on those charged even if they
were later found to be innocent. There was a
147
glaring absence of any reasonable
and probable cause to lay and prosecute the charges. If these
factors do not constitute extraordinary circumstances, I cannot
conceive of a set of circumstances that would do so. In my view,
proceeding with charges in such an extraordinary case in the
absence of reasonable and probable cause constitutes a strong
presumption of malice. The same consequences flow from continuing
on with the prosecution of such a case.
[382] In any event, even if
I am in error in finding that such a case raises a presumption
of malice, the law is clear that there is a strong indication
of malice in such a case. As well, there are many other strong
indications of malice that are inferred from the conduct of the
defendants. I have previously outlined many of those indications
of malice, but will comment briefly on some of the more salient
ones.
[383] There is no evidence
to indicate why Dueck never considered or sought some explanation
for why such a large number of people would act in such a concerted,
unusual, repetitive and perverted fashion with so many children.
In fact, the evidence, including that of Amy Jo Ehman, suggests
that Dueck was blinded by his zeal to turn the wild allegations
of the [R.] children into a high profile case that would portray
him as a diligent and unrelenting protector of abused children.
He had a close working relationship with Social Services personnel
and workers and with child therapists. He had attended at least
two seminars on ritualistic abuse around the same time that he
had obtained, or was obtaining, the "disclosures" of
ritualistic and satanic sexual abuse through other members on
his "team".
[384] It is almost beyond belief
that none of those involved in the prosecution of the plaintiffs
stood back, so to speak, and asked themselves if any of this
made any sense and whether it could reasonably be true. In failing
to do so, Dueck totally abrogated his duty as the primary investigating
officer to carry out a proper investigation. Miazga
148
totally abrogated his duty
as the primary prosecutor to make an objective and competent
assessment of the case he was consulted about and which he aggressively
prosecuted.
[385] This case is rife with
examples of the failures of the defendants to carry out their
respective responsibilities. In the interests of brevity, a couple
will suffice. Dueck and the prosecutors maintained that Marie
Klassen, a crippled, elderly and almost blind grandmother, was
not as infirm as she made out. Hansen claimed that she thought
one of her child witnesses had said that Marie Klassen could
get around on her own without using a wheelchair. But a review
of the evidence given by the child witnesses indicates that they
said that Marie Klassen could get around out of the wheelchair
only with difficulty. The distinction of whether she was bedridden
or got about with difficulty using a cane or a walker is of little
moment as to whether she was physically capable of performing
the gymnastic feats attributed to her by the [R.] children. These
included getting on top of them and having sex with them in the
bathtub. They also said that they tried to flush her down the
toilet several times. Although her feet went down the hole, she
was able to jump right out of the toilet and onto the floor.
[386] Another example is that
Richard Klassen was charged with a sexual assault on [K.R.] even
though [K.R.] had never named him as one of the individuals who
had assaulted her. A "disclosure" by [M.R. 1] to the
effect he had witnessed an assault on [K.R.] by Richard Klassen
was relied upon to continue to prosecute the charge. A similar
blunder was the charging of Kari Klassen with a sexual assault
on [K.R.] even though [K.R.] had never named her as one of the
individuals who had assaulted her and even though neither [M.R.
1] nor [M.R. 2] had "disclosed" that they had witnessed
her assaulting [K.R.].
[387] No explanation was ever
given as to why one or more seminars dealing with ritualistic
and satanic abuse, a rare and unusual type of child abuse, would
find an
149
audience in a small community
like Saskatoon. The circumstances leading up to this case and
the nature of the rapidly evolving attitudes of child care workers
and therapists respecting child abuse, cause me to suspect that
Dueck and Social Services personnel believed that this unusual
kind of abuse was taking place in Saskatoon and were looking
for evidence of it. It is obvious that they pressed very hard
to find it. Throughout his involvement in the case, Dueck appeared
at times to be conducting and expressing himself more as a social
worker than as an investigating police officer.
[388] There is no evidence
that Dueck ever meaningfully compared the allegations he had
obtained from the children to determine if they contained any
significant inconsistencies that would detract from their credibility.
Nor did he ever compare those allegations with the ones they
had previously "disclosed" to the Thompsons or to Bunko-Ruys.
Had he done so, he could not have avoided seriously questioning
whether the allegations were true in substance or were fabrications
made by extremely dysfunctional children. This is so because
it is beyond dispute that there were numerous significant and
irreconcilable inconsistencies within the allegations of each
child and even more between the allegations of each child.
[389] Dueck in effect did no
real or meaningful investigation of the allegations of abuse
as he was required by law to do. Even the provisions of the Saskatoon
Sexual Abuse of Children Protocol, upon which he so heavily relied,
acknowledged that child abuse allegations must be investigated
and assessed. What he did in effect was to simply extract, by
shamelessly leading questions, the incredible allegations that
the children "disclosed". Then he recorded them. Finally
he allocated them among the respective individuals who were named
in the "disclosures". There is no evidence that Dueck
ever paused to consider whether the allegations could reasonably
be true. In his interviews of the children and of the plaintiffs
he was going to charge, he kept stating that children never lie
and that they always tell the truth about sexual abuse. He obviously
convinced
150
himself that his statement
applied to the child complainants he had intervi ewed even though
he knew that children did in a fact lie on occasion.
[390] Another indication of
malice on the part of Dueck and Miazga is that they were not
evenhanded in their zeal to charge and prosecute all the alleged
perpetrators named by the [R.] children. There were numerous
identifiable individuals, many of them blood relatives of the
children, who the children named as perpetrating serious sexual
and physical assaults upon them. Some of these assaults were
far more serious than those alleged against some of the plaintiffs.
Some of them were more serious than any of those alleged by some
of the child complainants other than the [R.] children. Yet only
the Klassen - Kvello families were targeted. These other indivi
duals were not investigated, charged or prosecuted. The excuses
proffered for this discriminatory exercise of police and prosecution
powers were not convincing.
[391] Almost from the outset
until the charges were laid, Dueck consistently conducted himself
as if he had tainted tunnel vision. I previously related incident
after incident to demonstrate that his mind was completely closed
to any indication that the plaintiffs might be innocent of what
was alleged by the children against them. One of the clearest
examples is the manner in which he rejected the advice that was
given to him by Hinz. In my respectful view, the advice Hinz
gave him was right on the mark. Although Hinz is no longer a
prosecutor, he was highly regarded as a tough but fair and a
competent prosecutor. I respect his views, his judgment and his
integrity. Some of the observations he made on the witness stand
in the case before me are relevant to the issue of malice on
the part of Dueck and, to a lesser extent, on the part of Miazga.
[392] Hinz testified that the abuse alleged by the children in
the material given to him by Dueck to review, was done within
a ritualistic context and involved human sacrifice. It reminded
Hinz of the 17th century Salem witchcraft trials. In his opinion,
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