|
page
5 < < < | >>> beginning
Judge George
Baynton's historic judgment, page 6
151
allegations were so bizarre
as to be incredible unless they were corroborated in some material
way. He wondered how the truth of these extraordinary claims
could be demonstrated. In his opinion, a conviction was unlikely
without corroboration of the allegations. He observed that it
is a common sense proposition that the stranger the evidence
is, the stronger the proof that is required. As well, if a witness
is not credible on a significant point, it is hard to accept
the evidence of that witness on other points. The problem facing
Dueck was that if the allegations of the children about murder
and ritualistic sacrifice were untrue, the other allegations
of the children about sexual abuse were not credible.
[393] Hinz testified that in
1991 there was a public perception respecting satanic abuse.
He observed that this case was the only case in Saskatchewan,
until the Martensville case, that involved such allegations.
He told Dueck that he was investigating murders, not just sexual
assaults and he advised him to investigate further to try and
locate the bodies of the babies which supposedly had been killed,
partially eaten and buried.
[394] Dueck's response to Hinz
was that these cultists were "far too clever for that and
would have already disposed of the body". Hinz then suggested
that Dueck investigate to see if any children were missing. Dueck
responded that this would be fruitless because "these cultists
have brood mares who are willing to bear children". Hinz
was dismayed at this response as he had never heard such a comment
before. He said the conversation ended then because he had run
out of ideas. Dueck took back his file and Hinz had no further
contact with him.
[395] Hinz testified that prosecutors
were under intense pressure from Social Services and the police
not to stay charges on the basis of lack of corroboration. He
said that he likely would not have had the backbone to tell this
huge constituency to stay the charges that followed in this case.
He says he was never a member of the camp that held
152
to the ideological view that
children never lie and strongly maintained that to proceed with
criminal charges on this basis was not in accordance with the
law. He said that to stay charges in the face of having to answer
to Regina and the small "p" political pressure was
not feasible. But failing to do so only makes it worse. Nor will
it get any better if all the Crown has are wild allegations and
inconsistencies.
[396] He said that some prosecutors
believed it was their duty to take a case to court and let the
judge decide. He did not favor this approach as the majority
of committals in these kinds of cases resulted in acquittals
at trial. If he noted material inconsistencies in the child's
stories, he would bring that to the attention of the defence
lawyer and likely would shut the case down. He said that the
"Rand statement" as to the role of a prosecutor was
"stamped on their foreheads at prosecutors' school".
He remembered the two facets to it: "to convict the guilty
and to protect the innocent".
[397] My colleagues and I discussed
concerns about the increase we observed in the early 1990s in
the number of sexual assault prosecutions that were brought before
the court without the allegations being properly investigated.
We expected a large increase in the incidence of sexual assault
prosecutions. We did not expect a large increase in the prosecution
of allegations that had not been objectively assessed. It was
apparent in many instances that the prosecutor had not vetted
the case nor carried out his or her role as a gatekeeper. No
objective assessment had been made of the case which was supposedly
presented on behalf of and in the name of the Crown. The prevailing
attitude among some prosecutors appeared to be that their role
in sexual assault cases was now different from other cases. It
was simply to take an allegation of sexual abuse to court and
let the judge decide. As clearly indicated by the case law I
have cited, such an attitude or practice on the part of a prosecutor
is not only contrary to law but is professionally irresponsible.
153
[398] The case before me is
a prime example of why the law requires prosecutors to be more
than the legal counsel for a parent, a child complainant, a foster
parent and Social Services. Notwithstanding the views of some
prosecutors, these individuals are not their clients. Nor does
a prosecutor act on behalf of such individuals. A prosecutor
is an officer of the court who represents the Crown. There is
a very compelling rationale for requiring prosecutors to be principled,
fair, open-minded and cognizant of the risk of ruining the lives
of innocent people by taking unworthy cases to court. A prosecutor
has a much greater opportunity to make credibility assessments
of his or her witnesses than does the court. The court usually
sees a complainant or witness only once for a brief interval
in somewhat of a staged setting. Judges are discouraged from
becoming actively involved in the questioning of witnesses or
in raising issues not placed before them by the Crown or defence.
[399] A prosecutor on the other
hand is able to meet a crucial witness on several occasions if
required. The police force and its files, and additionally in
the case of foster children, the resources of Social Services
and its files, are a resource available to the prosecutor that
is not available to the court. The prosecutor can assess, probe,
confirm and reassess the allegations of a complainant, including
that of a child complainant. At times other independent information
or third party witnesses can be accessed in this respect. The
court does not have these resources or opportunities. It must
do the best it can with what is put before it. The information
gathered through a competent, thorough and objective investigation,
is an effective tool in the hands of a prosecutor to obtain a
guilty plea. Without it a trial is assured and the risk of a
wrongful conviction is increased. It is not an easy task for
defence counsel to successfully challenge a fabricated rote allegation
of abuse absent a proper investigation by the police and a fair
prosecution on behalf of the Crown.
154
[400] Although the role of
a police officer differs considerably from that of a prosecutor,
an officer of the law does have prescribed legal responsibilities
and obligations. As indicated by the case law I cited previously,
a police officer abrogates his or her responsibility and acts
contrary to law if he or she simply lays a charge because a complaint
has been made. The laying of a charge is not lawful absent an
honest belief in probable guilt based on reasonable grounds.
Usually these two requirements cannot be met without some form
of an investigation. Any investigation requires a rational consideration
with an open mind of all relevant circumstances, including those
that are exculpatory as well as those that are inculpatory. Many
of the observations I have just made about the responsibility
of prosecutors to act independently of a complainant, applies
to police officers as well.
[401] While addressing this
issue, I express my concern about Hansen's testimony to the effect
that she has heard judges instruct juries that they are entitled
to accept all, some or none of the testimony of a witness. She
understands this to apply as well to her discretion as a prosecutor.
This is an ill-conceived conclusion on her part. The form of
jury charge she refers to is directed to witnesses in general.
Other considerations apply to certain kinds of witnesses such
as an accused or a complainant. In any event, a jury charge applies
only to juries and defines their roles and responsibilities.
It does not apply to prosecutors nor does it attempt to define
their roles and obligations.
[402] It is beyond the scope
of this judgment to comment on the impropriety of a prosecutor
presenting a witness to the court that the prosecutor knows is
not credible in many respects. Whether the prosecutor has made
a timely and a full disclosure to the defence and the court of
all matters touching on the issue would certainly be a relevant
consideration. But the point to be made in this case is that
both prosecutors presented witnesses to the court that they knew
were not credible in the sense that much of their evidence was
false and inconsistent and some of it had been previously recanted.
What is
155
particularly reprehensible
is that some of this was not disclosed to the defence, at least
on a timely basis, and much of it was kept from being placed
before the court. In fairness to the prosecutors, it appears
that they did advise the court on a few occasions when the children
fabricated a story in the face of the court. An example is when
Miazga advised the court that [M.R. 1] lied when he told the
court he had kept notes of the abuse and offered to produce them.
[403] Another clear example
of Dueck's tainted tunnel vision is his failure to heed the concerns
expressed by Verwey of Alberta Family Services in Red Deer. After
reading pages of transcripts filled with the questionable opinions
of child care workers and therapists unqualified to give such
opinions, the practical observations of Verwey were like a breath
of fresh air. The same can be said about the observations of
Hinz compared to some of the observations made by Miazga and
Hansen about child witnesses throughout the three criminal proceedings
and, to a lesser extent, during the civil trial.
[404] One aspect of the evidence
of each of the defendants is particularly telling. I read pages
of the testimony of Bunko-Ruys in the form of evidence given
in each of the court proceedings and in the read-ins of her testimony
in her examinations for discovery. In that testimony she went
on and on about her concern for the needs and welfare of the
children, for the need to support them, for the importance of
believing their assertions and for the need to prevent them from
being traumatized by the court process. Yet I read not a word
by way of an apology to any of the plaintiffs, not a word by
way of an expression of any regret or remorse for the part she
played in the wrongful charging and prosecution of the plaintiffs
and not a word for the disastrous consequences and significant
trauma that were suffered by the plaintiffs as a result of her
involvement in the case.
156
[405] I also read pages and
heard hours of testimony of Dueck, Miazga and Hansen. The same
that I said about Bunko-Ruys applies to each of them. In my respectful
view, the lack of any regret or remorse for what was done to
the plaintiffs is a strong indicator of malice on the part of
each of the defendants, including Hansen.
[406] Another indicator of
malice on the part of each of the defendants, including Hansen,
is his or her obvious lack of any concern or even interest about
whether the common and ordinary people he or she was proceeding
against on the basis of such incredible allegations, might be
innocent of the serious criminal offences alleged against them.
The presumption of innocence is likely the most basic principle
of our criminal law and our democratic system. It appears from
the testimony in the read-ins from her examinations for discovery
that the concept is not one known to Bunko-Ruys. But Dueck, an
experienced police officer, and Miazga and Hansen, both experienced
prosecutors, knew otherwise. Nor did I hear a word of concern
expressed by any of the defendants, including Hansen, about what
effect the prosecution would have on the public confidence in
the justice system if the incredible allegations were untrue.
The only thing that came close to this was Hansen's reference
in her prosecutorial memo to the risk of a "disastrous acquittal"
if the proceedings were not stayed against the two "young
offender" plaintiffs.
[407] In a similar vein, there
was not a hint from any of the defendants, including Hansen,
of any remorse for the negative effect that the prosecution of
the plaintiffs on false child sexual abuse allegations has had
on the credibility previously afforded to sexual assault complaints
of child witnesses. This case illustrates that the overzealous
and mindless prosecution of sexual abuse allegations that are
made by unreliable child witnesses, defeats the underlying objective
of the very Protocol that is relied upon to supposedly justify
such a cause of action. The ideological pendulum in our society
has a history of swinging from one extreme to the other. In the
early 1990s, pursuing child
157
allegations of child abuse
was the idealogy of the day. At the outset of the 21st century,
pursuing wrongful prosecutions and convictions appears to be
the idealogy of the day. Hopefully a balance of these idealogies
will prevail. I am cognizant of the potential for prosecution
chill or for wrongful convictions if a balance is not maintained.
[408] Another strong indicator
of malice on the part of Bunko-Ruys is the manner in which she
responded to [K.R.] when [K.R.] confessed to her that she had
lied in court about being abused. At the time she was made aware
of this, the appeal from the conviction of [R.], [R.] and White
in the related proceedings had likely been taken but definitely
had not been concluded. Although the Supreme Court overturned
the convictions as I outlined previously, had the recantation
been properly communicated to the authorities it would likely
have constituted fresh evidence that the Court of Appeal in the
first instance could have considered.
[409] By withholding and in
effect attempting to stifle such evidence, Bunko- Ruys may, in
the circumstances, have run the risk of being charged with the
criminal offence of obstructing justice. At the least, her conduct
shows bad faith and malice towards all the individuals who were
charged, including the plaintiffs. All the defendants, except
for Dueck, maintained that the stays were entered by the Crown
because the [R.] children were too traumatized to testify again
in another court proceeding. They did not reveal that the stays
were entered because the evidence of the [R.] children was inherently
unreliable. By adopting such a position, the defendants, except
Dueck, caused the public to presume that the plaintiffs were
guilty as charged. The response of Bunko- Ruys to the recantation
that was made to her, constituted a deliberate decision on her
part to stifle the truth so that this public perception of the
guilt of the plaintiffs would remain unchallenged.
158
[410] I indicated previously
that I am skeptical of any statements, made in or out of court,
of the [R.] children. I have no reliable grounds to question
or disbelieve the evidence that [M.R. 1], [M.R. 2] and [K.R.],
now adults, gave in the trial before me. But in view of the fabrications
and lies they told a decade ago, I do not have the same degree
of trust in their credibility as I would have in the credibility
of a witness who has not been known to lie or give perjured evidence.
The credibility of the testimony of [M.R. 1], [M.R. 2] and [K.R.]
in the civil trial was bolstered by the fact that it was not
seriously challenged. Their testimony tends to be consistent
with known circumstances that are independent of their testimony.
In the criminal proceedings that took place over a decade ago,
the reverse pertained.
[411] As well, the substance
of their evidence and their demeanour and conduct demonstrated
at the civil trial, were more consistent with the demeanour and
conduct of persons who give truthful testimony than with those
who are untruthful. It was unlike the demeanour and conduct that
they exhibited in their videotaped interviews and subsequent
testimony at the criminal proceedings a decade ago. One of the
most reliable indicators of the credibility of the testimony
of [K.R.] that she recanted her abuse allegations to Bunko-Ruys,
is the failure of Bunko-Ruys to take the witness stand and deny
what [K.R.] said to her.
[412] Another indicator of
malice on the part of Miazga is the manner in which he conducted
himself throughout the criminal proceedings. One cannot fault
a hard-nosed or an aggressive prosecutor provided that the prosecutor
is fair and objective. A careful reading of the transcripts of
the two preliminary inquiries and the trial, demonstrates that
he was at times neither fair nor objective. He cannot be faulted
for the tremendous effort he successfully invested in convincing
the two judges involved to turn the court on its head, so to
speak, to accommodate the perceived needs of the children. Nor
can he be faulted for the appearance, induced by all these special
arrangements and concessions for
159
the children, that the plaintiffs
huddled behind the screen were on the same playing field as the
child complainants who apparently accessed the courtroom through
the judges' entrance and into a special room in the judges' chambers.
[413] But he can be faulted
for successfully objecting to Mr. Borden's request that, as an
officer of the court, he be permitted to sit in the courtroom
as an observer during the first preliminary inquiry so that he
could hear what evidence the children would give. Mr. Borden
undertook to comply with any conditions that might be imposed
on him, but to no avail. Two consequences flowed from Mr. Borden's
exclusion. First, it made it more difficult for him to effectively
represent his clients at the subsequent preliminary inquiry.
Second, it sheltered the children to a considerable degree from
subsequent successful attacks on the credibility of their evidence.
This was not a case of protecting a fragile and truthful child
from a subsequent unfair and aggressive crossexamination of his
or her credible allegation of abuse. It was a case of protecting
the fabrications of dysfunctional and untruthful children from
a subsequent effective challenge of their fabrications of abuse.
[414] In a similar way, Miazga
was routinely aggressive and diligent in objecting to the cross-examination
of the children on what they had previously "disclosed"
in their videotaped interviews or to others. Although the defence
lawyers were able to crossexamine the children on many significant
inconsistencies between their court testimony and their videotaped
"disclosures", Miazga successfully objected at the
preliminary inquiries and at the trial to the court viewing the
videotaped interviews or to reading the transcripts of them that
had been prepared respecting those of the [R.] children.
[415] These objections have
special significance to this case because the best evidence the
defence had was the videotaped interviews of the children. In
my respectful view, no right thinking individual could have viewed
those videos without concluding
160
that the children were repeating
fabricated allegations and then fabricating other allegations.
Yet because of Miazga's efforts, the courts were denied the benefit
of those videotaped interviews in making their assessments of
the credibility of the [R.] children and the strength of the
Crown's case.
[416] In the average case,
an overly aggressive prosecution would not of itself constitute
an indication of malice. But in this unique case, where the freedom
of so many individuals hung in the balance and where Miazga himself
had obvious and legitimate concerns about the veracity of the
evidence of the children, he should have afforded defence counsel
with every reasonable opportunity to challenge those allegations.
What was of critical importance in the proceedings he was conducting
was not winning the case, but determining the truth of the questionable
allegations. By taking the overly protective stand that he did,
he seriously increased the risk of the wrongful convictions of
a large number of innocent individuals.
[417] Another similar example
is Miazga's handling of many of the expert witnesses he called
at the [R.], [R.] and White trial, and to a lesser degree, the
expert witnesses he called at the preliminary inquiries. Professional
witnesses are usually able to fend for themselves. Yet Miazga
led some of his expert witnesses to the point of telling them
what to say and he aggressively, and at times improperly, objected
to their crossexamination by defence counsel. His objections
were significant enough respecting the cross-examination of Dr.
Santa Barbara, his expert psychologist witness, that the trial
judge on her own initiative warned him that he was being overly
protective of her. On other occasions he unduly took issue with
the rulings that had already been made by the presiding judges,
presumably in an attempt to get the judges to reverse their rulings,
an objective he realized on more than one occasion.
161
[418] Again, one can understand
any prosecutor becoming overly zealous in the heat of the moment,
but the inescapable inference to be drawn from Miazga's approach,
attitude and conduct throughout the criminal proceedings is that
he was going to get committals or convictions no matter how unreliable
his witnesses were and that he was not going to let the truth
get in the way. He attempted to minimize the significant inconsistencies
in the children's evidence by attributing them to the extreme
trauma the children were supposedly experiencing in giving their
evidence and being subjected to cross-examination by the defence.
At one point he accused Mr. Borden of conduct bordering on the
unethical. But to his credit, when prompted by the judge, he
quite properly apologized for his comments.
[419] Miazga is generally held
in high regard as a competent and principled prosecutor. In fairness
to him, I am of the view that he likely bowed to pressure from
his superiors, Social Services personnel and workers, Dueck,
his child sexual council abuse peers and the prevailing attitude
of the day, to accept the child sexual abuse allegations of the
[R.] children without question and to vigorously prosecute those
that they named as their abusers. He likely got himself into
a prosecution that he knew was doomed from the start and did
not know how to extricate himself from it. In so doing, he abdicated
his legal and professional responsibilities as a prosecutor and
was responsible for the malicious prosecution of the plaintiffs
that ensued.
[420] I am satisfied that Miazga,
Dueck and Bunko-Ruys had malice and a primary purpose other than
that of carrying the law into effect in initiating and continuing
the criminal proceedings against the plaintiffs within the meaning
of the case law I have cited. I have outlined various indications
of malice on the part of Hansen. In view of my disposition respecting
her I express no final conclusion as to whether this element
of the cause of action was established against her.
162
Comments on
Submissions by the Defendants
[421] The defendants in their
submissions referred to four specific events involving the views
of third parties. They say that these views show that they had
no malice and as well, had reasonable and probable cause to lay
charges and to continue on with the prosecution. As the absence
of malice or the presence of reasonable and probable cause is
a complete bar to the plaintiffs' action, I will deal with each
submission in turn.
The Credibility
Finding by the Trial Judge
[422] The first event is that
a judge of this court found that the [R.] children were credible
because she convicted [R.], [R.] and White on the strength of
the [R.] children's evidence. This is of no assistance to the
defendants for six reasons. First, on the admission of Miazga
himself, the case against [R.], [R.] and White was stronger than
the case against the plaintiffs.
[423] Second, the decision
of the trial judge was overturned by the Supreme Court of Canada.
It is improper to rely upon the decision of the trial judge other
than for the proposition that the decision she made on the basis
of her belief in the credibility of the [R.] children was found
by a higher judicial authority to be in error. The defendants
cannot accordingly utilize her decision or belief to validate
their beliefs or actions. Nor can they rely upon her decision
or belief to preclude this court from determining that the [R.]
children were not credible witnesses. I have read all the evidence
that was presented to the trial judge and have the added benefit
of viewing the videotaped interviews of the [R.] children.
[424] Third, Miazga was successful
in keeping the videotaped interviews of the [R.] children's "disclosures"
from the scrutiny of the trial judge. This was the most
163
damaging evidence respecting
the credibility of the [R.] children. Yet the trial judge did
not have the benefit of this evidence in assessing the credibility
of the [R.] children. I am convinced that had she reviewed these
videotapes, her conclusions and findings respecting the [R.]
children would have been vastly different.
[425] Fourth, Miazga focused
his case not on establishing the truthfulness of the allegations
of abuse that the [R.] children made, but on establishing that
the [R.] children were sexualized. He then relied on the opinion
evidence of Bunko-Ruys' to establish the premise that sexualized
children are sexually abused children and that the sexualization
of the [R.] children was so extreme that it demonstrated very
traumatic abuse early in their development. The message inherent
in the case he presented to the trial judge was that the [R.]
children had to have been sexually abused, that they had to have
been sexually abused while in the home of their birth parents
when [M.R. 1] was seven and under and the girls were four and
under, and that it must have been the birth parents and the boyfriend
who had abused them.
[426] The fact that what the
[R.] children said about that abuse was inconsistent or made
little sense, was an obvious concern for Miazga and Bunko-Ruys.
At the preliminary inquiry, Miazga had taken care not to ask
the children questions that would elicit their previous allegations
of ritualistic or satanic abuse. But he could not prevent it
from coming out in cross-examination and becoming a major hurdle
to the credibility of the children. Hansen testified that the
prosecutors were aware this would become an issue at trial and
solicited the assistance of an expert in an attempt to explain
how the [R.] children could have made these allegations which
even the investigating officer and the prosecutors say they did
not believe.
[427] Miazga called Dr. Santa
Barbara, a psychologist from Toronto, as an expert witness at
the trial. She had been involved in a case or two that included
elements of
164
satanic ritualistic abuse in
which a sophisticated effort had been made by the abusing adults
to deceive the children into believing they were witnessing things
that were really not happening. This might have provided an explanation
for the bizarre allegations the [R.] children made if the nature
and circumstances of the abuse they described was similar to
that of the case described by Dr. Santa Barbara. But they were
not. Additionally, the evidence clearly established that [R.],
[R.] and White lacked the sophistication and means to orchestrate
performances of the complexity required to deceive even young
children about the nature and details of what they said they
observed.
[428] Most of the details of
the allegations made by the [R.] children of ritualistic or satanic
abuse are to be found in their videotaped interviews which were
not seen by the trial judge. She was accordingly not in a position
to determine whether the hypothetical assumptions utilized by
the expert witness in giving her opinion evidence were comparable
to the ritualistic and satanic abuse allegations which had been
made by the [R.] children. Yet the opinion of Dr. Santa Barbara
was relied upon by Miazga to explain why the children had made
those false allegations. Having explained that they were tricked
into believing them, the fact they were false did not detract
from their credibility. In my respectful view, this is one of
the most blatant attempts at oath helping that I have seen.
[429] Fifth, through the dubious
testimony of several self-professed child care experts, Miazga
focused his case on the "needs" of the [R.] children
and on the "extreme trauma" that they had to suffer
by being required to testify and have their allegations challenged.
This tended to mask or even justify the significant discrepancies
of the children's evidence and, at times, to divert the focus
of the trial from the real issue to be determined, namely whether
[R.], [R.] and White were guilty or not guilty of the incredible
allegations brought against them.
165
[430] Sixth, for the reasons
set out in the case law I have cited, a prosecutor cannot bootstrap
his or her position by relying on the decisions of a third party.
The facts of some of those cases are similar to the facts of
this case.
The Credibility Comments of
the Preliminary Inquiries Judge
[431] The second event relied
upon by the defendants is that the Provincial Court judge who
conducted the two preliminary inquiries, supposedly said that
he believed the testimony of the [R.] children. This is of no
assistance to the defendants for three reasons. First, as mentioned
previously, a prosecutor cannot bootstrap his or her position
by relying on the decision of a third party.
[432] Second, it is well known
that the function of a Provincial Court judge who conducts a
preliminary inquiry does not include making assessments of the
credibility of witnesses. It is limited to determine if there
is a sufficient case to go to trial in accordance with the test
set out in United States of America v. Sheppard (1977), 30 C.C.C.
(2d) 424 (S.C.C.). Any statement the Provincial Court judge made
about the credibility of the [R.] children did not have the weight
of a judicial determination of credibility.
[433] Third, this evidence
was introduced through the testimony of the two prosecutors on
the basis of an exception to the hearsay rule. The statement
was tendered as proof that it was made, not as proof of its truthfulness.
Hansen and Miazga invited the judge out to lunch after the two
preliminary inquires had been concluded but before the [R.],
[R.] and White trial was to begin. I place little reliance on
the alleged statement of the judge for four reasons. First, it
is not the best evidence but is only second-hand evidence. The
judge was not called as a witness to affirm or deny the statement
attributed
166
to him. The plaintiffs were
not able to cross-examine him about his alleged statement, the
context in which it was given or whether it was made with qualifications.
[434] Second, it is highly
unusual and questionable for a judge to discuss an ongoing case
with a party in the absence of the other parties. Although the
judge had completed the preliminary inquiry by committing [R.],
[R.] and White for trial, the trial in this court was still pending.
One might ask what would have happened had the prosecutors attempted
to adduce this evidence at the trial, whether by their own testimony
or by calling the judge as a witness. Other oath helping witnesses
were allowed to testify.
[435] Third, this same judge
appeared to have grave reservations about the credibility of
the [R.] children within a short time before he allegedly said
the reverse to the prosecutors. In his reasons for committing
the plaintiffs for trial after their preliminary inquiry that
followed on the heels of the [R.], [R.] and White preliminary
inquiry, he has this to say respecting the counts pertaining
to the [R.] children:
. . . persuasive arguments
were made to me that, in essence, said that I - in my view, said
that I shouldn't believe the testimony. My function as a Provincial
Court Judge presiding over a preliminary hearing . . . is not
to make a determination of innocence or guilt but merely to decide
whether there is before the Court any admissible evidence, whether
direct or circumstantial, which, if believed by a properly charged
jury acting reasonably could convict. It is not my function to
weigh the evidence or to test its quality or reliability.
[436] Fourth, at the outset
of the Klassen - Kvello preliminary inquiry, defence counsel
jointly applied to have this same judge recuse himself on the
basis that he would be required to make similar rulings to those
he had made previously in the [R.], [R.] and White preliminary
inquiry. He would also be required to hear from essentially the
same
167
witnesses that he had heard
from before. Miazga successfully opposed the application on the
basis that the judge would not be weighing the evidence or determining
issues of credibility.
The Instructions
of the Superiors of the Prosecutors
[437] The third event relied
upon by the prosecutors is that on more than one occasion, the
details of which I related previously, they sought the advice
of their superiors and were told that if they still believed
in the substance of the complaints, they should proceed with
the prosecution. Again this is of no assistance to the prosecutors
for three reasons. First, the advice of the superiors to proceed
was qualified. I have previously outlined the ambiguity of this
qualification. I also previously related the evidence on which
I concluded that Miazga did not have an honest belief in the
allegations of the children or in the probable guilt of all the
plaintiffs on all the charges being prosecuted against them.
[438] Second, there is no evidence
that the prosecutors informed their superiors of the full extent
of the unreliability of the evidence of the children. Instead
they emphasized how tired and traumatized the children had become
by lengthy appearances in court. Had their superiors been informed
of the sorry state of the case and the significant difficulties
with the credibility of the children, it is highly unlikely that
they would have instructed the prosecutors to continue despite
whatever beliefs they may have had in the substance of the complaints.
The sole consideration is not the subjective belief of a prosecutor.
I have serious concerns that Miazga contacted his superiors not
only to obtain their advice, but as well to attempt to minimize
the risk of his exposure to liability if the whole case came
crashing down around him as it eventually did.
168
[439] Third, for the reasons
set out in the case law I mentioned previously, a prosecutor
cannot bootstrap his or her position by relying on the decision
of a third party even if that third party is a superior. The
instructions or advice of a superior cannot justify an unlawful
act such as the continuation of a malicious prosecution. If Miazga
felt so insecure about the merits of his case that he had to
continually obtain confirmation to proceed with it, he should
have either stayed the charges or turned the case over to someone
else. Nor can a prosecutor abrogate his professional responsibilities
or offload them on a superior by using the advice of a superior
as justification for his own wrongful actions. Even an employee
in a master-and-servant relationship could not avoid liability
on this basis.
[440] Miazga was exercising
the powers and duties of the office of a prosecutor. As a Crown
official and as legal counsel, he was an officer of the court
with obligations not only to his employer, but to the court,
his fellow counsel, the public and the plaintiffs who had been
accused of the criminal offences. I previously cited the traditional
legal description of the role of a prosecutor. That role does
not permit a prosecutor to conduct himself as if he is counsel
for child witnesses, for Social Services officials or personnel,
for the police or for child therapists. Nor does it permit a
prosecutor to forget that the object of a prosecution is not
just to win. In fairness to a lawyer who has always been a prosecutor,
and who deals for the most part with people who have committed
serious and petty crimes, it is easy to become jaded about human
nature and forget that some of the people that are accused of
crimes are in fact innocent of them.
The Encouragement
of the Preliminary Inquiry Judge to Proceed
[441] The fourth event relied
upon by the defendants is the encouragement given to Miazga by
the judge who conducted the [R.], [R.] and White preliminary
inquiry. As
169
mentioned previously, Miazga's
confidence in his case was badly shaken when [M.R. 1] lied in
the face of the court about keeping notes of the abuse.
[442] Miazga told the judge
that he was late for court because [M.R. 1] was not telling the
truth about the notes. The judge responds that, "It doesn't
surprise me." Miazga told the judge that he wanted to think
over the weekend about what position to take on Monday. He frankly
states that there may not be sufficient evidence for a committal
and that he may not want to proceed with the next preliminary
inquiry. He says that he wants to consider the likelihood of
getting convictions on any of the charges. The judge responds,
"I must express my surprise that you would be considering
that way. . . I personally would have - I mean it's not my function
to assess credibility but, simply voicing my own -". Miazga
interrupts and outlines several factors he must consider.
[443] This ill-advised encouragement
by the judge cannot provide Miazga with justification to continue
on with a malicious prosecution action. For reasons given respecting
the credibility comments of the same judge, these remarks, although
made in a courtroom in this instance, do not have the status
of a judicial determination of any issue that bears on the case
before me. As I outlined previously, the court is not privy to
the same information that is available to the Crown or the defence.
A court can rule on or make determinations of the issues before
it. But it is not in a position to direct or give advice to either
the Crown or the defence on how to conduct their respective cases.
[444] Only Miazga as the Crown
prosecutor was in a position to make a meaningful decision as
to whether he had a case that should be pursued or should be
stayed. He could not abrogate his responsibility as Crown counsel
by relying on a decision or direction of the preliminary inquiry
judge. The comments of the judge do not constitute reasonable
and probable cause to continue, nor do they nullify the malice
evidenced by Miazga in continuing on with the prosecution with
the knowledge that he
170
did not have a credible case.
Nor did Miazga's frank comments to the court about the weakness
of his case provide him with justification to pursue that case.
The Reasons
for Dismissing the Action Against Hansen
[445] The main strength of
the plaintiffs' case, as I have detailed previously, is that
they were charged and prosecuted on the basis of the allegations
of the three [R.] children. The nature of those allegations cried
out for a reasonable explanation as to how they could possibly
be true in the circumstances. Miazga, Dueck and Bunko-Ruys had
no reasonable and probable cause to initiate and continue the
prosecution of the criminal proceedings against the plaintiffs.
Dueck, Bunko-Ruys and Miazga acted in concert to pursue proceedings
that would never have been pursued but for the involvement of
each of them.
[446] The involvement of Hansen
in the proceedings is markedly different from that of the other
three defendants. She had little to do with Dueck and not much
more to do with Bunko-Ruys. She was not involved in the case
until after the initial charges were laid. As I have outlined
previously, her involvement in the case was considerably less
than that of Miazga. Although they prosecuted the plaintiffs
jointly, the evidence demonstrates that she took a subordinate
role. To her credit, she stayed most of the charges respecting
the children for whom she was responsible when she lost confidence
in their credibility. Miazga on the other hand failed to do so
even when faced with three witnesses who were even more incredible
than Hansen's witnesses.
[447] Hansen appeared throughout
the proceedings to refrain from taking an aggressive approach.
She was careful for the most part not to lead her witnesses in
her examinations-in-chief nor was she overly protective of them
when they were asked questions by defence counsel. She appeared
to abide by the rulings of the court without contesting their
validity. I am not aware of any instance in which she attempted
to distort
171
or stifle the evidence. I do
fault her however for trying to excuse the inconsistencies of
her child witnesses on the basis that such inconsistencies are
to be expected in children's evidence. Although this may be true
respecting collateral details, it is not true respecting material
or substantive matters. She should have also been more concerned
about previous recantations by some of the children and by previous
statements by some of the children that indicated they had been
told what to say. The charges she pursued against the plaintiffs
on the basis of the equivocal allegations of M.K. were unjustified.
[448] With the reservations
that I outlined earlier, her testimony demonstrated her careful
approach to the task to which she was assigned. She says that
she did not rely on the police occurrence report to become informed
as to the allegations of the children. She was more convinced
than was Miazga, of the necessity to review the videotaped interviews
of the children for whom she was responsible, as well as personally
interviewing those children. Both were required to determine
what the children would say in court and how they would present
their evidence. She took notes of those videotaped interviews.
She told the children about the importance of telling the truth.
She interviewed the children in a formal setting on a one-on-one
basis, asking the parents and others to leave. She was careful
not to lead the children in her interviews of them. She interprets
the Saskatoon Sexual Abuse of Children Protocol as a direction
to accept what the child said but then to investigate what was
said. An allegation should not be rejected just because it came
from a child.
[449] She says that she is
cognizant of the burden on the Crown to present a credible case
to the court on a standard of proof beyond a reasonable doubt.
Her own belief is that a child, just like anyone else, can lie.
She said she is of the view that the evidence of children can
be filled with inconsistencies yet not be as flawed as the evidence
of an adult with the same degree of inconsistencies. Although
this is likely true, her statement begs the question of whether
any witness, child or adult, would be credible
172
if his or her evidence was
filled with inconsistencies. She did acknowl edge however, that
in either case the standard of proof beyond a reasonable doubt
is the same.
[450] I have outlined these
observations about Hansen's initial involvement in the case and
her evidence respecting her views, to demonstrate what she knew
about the case, what she says about her beliefs and what her
conduct reveals about her beliefs.
[451] Because of partial recantations
and inconsistencies in the evidence of three of the children,
S.W.H., S.E.H. and S.L.H., Hansen eventually concluded, likely
not long before the Klassen - Kvello preliminary inquiry was
to begin on December 2, 1991, that she had lost confidence in
them as witnesses and could not offer them to the court. On November
26, 1991, she advised Robert Borden of her intention to stay
the charges respecting S.L.H. She did so, along with the charges
respecting a second child, S.E.H. on December 2, 1991.
[452] Hansen had several interviews
with the third child, S.W.H. on November 1, 8 and 26, 1991. She
asked Marilyn Gray, another prosecutor, to sit in on January
2, 1992 for an independent opinion and to take notes respecting
his allegation against S.K. and S.K., the two plaintiff "young
offenders". S.W.H. changed his story again and she concluded
for this reason and because of Gray's assessment that S.W.H.
was not credible, that he had reached a level of inconsistency
beyond which she could not offer him to the court. All remaining
charges respecting his allegations were stayed by the Crown shortly
before the preliminary inquiry ended. This left her with only
two persons charged by only two children.
[453] I am not satisfied on
a balance of probabilities that Hansen maliciously prosecuted
the plaintiffs. The plaintiffs' case against her fails because
they have not made out the third element of the cause of action
against her. The nature of the allegations of
173
the children with whom she
was dealing was not inherently incredible as were those of the
[R.] children. For the reasons I outlined previously, the nature
of the evidence between the two groups of child complainants
was vastly different. Hansen had one child complainant who was
very credible, a fact acknowledged by each of the plaintiffs.
That witness made no allegations of abuse against any of the
plaintiffs.
[454] Hansen never saw the
videotaped interviews of the [R.] children nor the Thompson notes
because she was not responsible for the [R.] children. The only
exposure she had to the [R.] children's allegations until the
second preliminary inquiry was underway, was the two partial
days of observing them in the first preliminary inquiry. She
could not have known until later how incredible the [R.] children
or their allegations really were. She never realized the extent
of their inconsistencies that would have been demonstrated to
her by the videotaped interviews. Because of the manner in which
the prosecutors divided the division of labour, she was not under
the same obligation as Miazga, to inform herself of any details
and inconsistencies respecting the allegations of the [R.] children.
She was primarily responsible for the other children assigned
to her.
[455] When she initially prepared
to present the witnesses who were her responsibility, she could
reasonably take some comfort in the fact that charges had already
been laid respecting the sexual assault allegations of the [R.]
children. Those charges were against some of the same plaintiffs
who were implicated in the sexual assault allegations of the
children who were her responsibility. I am satisfied that Hansen
had an honest belief in the guilt of all of the plaintiffs respecting
all the charges brought against them by the child complainants
under her responsibility.
[456] I am not satisfied that
there was an absence of reasonable and probable grounds for her
belief. The objectivity of her belief must be considered from
the perspective of a reasonable person standing in her shoes,
so to speak. On the basis of the
174
factors I have previously outlined,
I am satisfied that they constituted a state of circumstances
that would reasonably lead an ordinarily prudent and cautious
person, placed in the position of Hansen, to the conclusion that
the plaintiffs were probably guilty of the crimes imputed to
them on the basis of the allegations of the child complainants
under her responsibility. Although I have serious reservations
about the charges based on the allegations of M.K., I am not
convinced on a balance of probabilities by those reservations
of the lack of reasonable and probable cause in connection with
them. The burden of proof has not been met by the plaintiffs
that the charges were proceeded with by Hansen absent reasonable
and probable cause.
[457] I now move on to consider
whether the plaintiffs have proven that Hansen maliciously prosecuted
them respecting the offences based on the allegations of the
three [R.] children. For ease of reference, I will refer to these
offences as the "[R.] charges" to distinguish them
from the charges based on the allegations of the other children
that were the responsibility of Hansen. I will refer to these
charges as the "other charges". I previously concluded
that Hansen had reasonable and probable cause to prosecute the
"other charges" that were initially laid and to subsequently
lay and prosecute additional "other charges". My reasons
for so concluding do not necessarily apply to Hansen's "prosecution"
of the "[R.] charges" even though it appears that she
initiated some of the additional "[R.] charges".
[458] But I am satisfied that
unless Miazga's primary involvement in and responsibility for
the prosecution of the "[R.] charges" relieves Hansen
of liability to the plaintiffs, she maliciously prosecuted them
respecting the "[R.] charges". Her involvement and
conduct respecting these charges satisfies each of the four elements
of the malicious cause of action. The second element obviously
applies. The third element is satisfied in that even if she did
have an honest belief in the guilt of the plaintiffs respecting
the "[R.] charges", which I seriously doubt, there
were no reasonable and
175
probable grounds to support
that belief. The fourth element is satisfied by the numerous
indicators of malice that I outlined previously. But the first
element is in doubt, due to Miazga's primary involvement in and
responsibility for the "[R.] charges" .
[459] I am troubled by the
fact that Hansen did not, in the strict legal sense of the term,
prosecute the plaintiffs for the "[R.] charges". They
were in reality prosecuted by Miazga even though Hansen assisted
in some respects and supported Miazga in his prosecution of them.
But it does not follow from the simple fact that two prosecutors
were involved in the overall prosecution of the plaintiffs, that
they both maliciously prosecuted them on all the charges that
were the subject of the prosecution. The malicious prosecution
cases that I am aware of, do not address the type of case like
the one before me where multiple prosecutors by agreement took
different roles in the overall prosecution of the case. In many
respects, the case involved two separate prosecutions that were
conducted in common by different prosecutors. If this is so,
the liability of the prosecutors should be considered in this
context.
[460] The evidence satisfies
me that even if Hansen had not been involved in the proceedings,
the outcome of the prosecution of the "[R.] charges"
would have been the same. Miazga would still be liable to the
plaintiffs for the malicious prosecution of those charges but
of course Hansen would not. It is more difficult to predict what
would have pertained if Miazga had not been involved in the proceedings.
Hansen became involved at a later date than Miazga not only in
connection with the "[R.] charges" but also in connection
with the proceedings themselves. She also had less initial involvement
with the [R.] children than Miazga.
[461] If Hansen had been solely
responsible for the proceedings, it is difficult to predict whether
the outcome would have been the same. She may have lost confidence
in the [R.] children and stayed the charges at an earlier stage
in the proceedings than did
176 Miazga. In view of her
demonstrated tendency to stay charges only as a last resort when
the credibility of her child witnesses had become hopelessly
impugned, I suspect she would have forged on despite the formidable
odds. But this is primarily conjecture on my part. There is no
solid evidence to support it as an inference.
[462] Although these considerations
may be helpful to determine the unique nature of the prosecution
of this case, it is evident that both prosecutors were very involved
in it. Although the prosecutors had a common objective to convict
the plaintiffs of the charges brought against them, they proceeded
along different paths to realize this objective. I have already
concluded that Hansen did not maliciously prosecute the plaintiffs
respecting the "other charges". I have concluded as
well that Miazga did maliciously prosecute the plaintiffs respecting
the "[R.] charges". These findings were based on the
same legal principles but on quite different facts.
[463] There is no evidence
to suggest that Hansen did anything that encouraged Miazga to
take a course of action respecting the "[R.] charges"
that he otherwise would not have taken. Nor is there any evidence
to suggest that she did or omitted to do anything that caused
him to make or decline to make assessments or decisions respecting
those charges that he otherwise would not have made or declined
to have made. Hansen played a secondary role in the case from
an overall perspective. She left all decisions respecting the
"[R.] charges" to Miazga and even though she is undoubtedly
a prosecutor in her own right, her role in this unique case respecting
the "[R.] charges" was more that of an assistant to
Miazga than a co-prosecutor.
[464] From a strict legal perspective,
Hansen may have maliciously prosecuted the plaintiffs respecting
the "[R.] charges" by assisting Miazga to do so. But
from a functional perspective, she neither initiated nor continued
these proceedings as a prosecutor in her own right. I am satisfied
in the unique circumstances of this case that
177
the plaintiffs have failed
to prove the first element of their malicious cause of action
against Hansen respecting the "[R.] charges".
[465] On this narrow ground,
I conclude that the plaintiffs have not proven their malicious
cause of action against Hansen and it is dismissed against her.
The Reasons
for Allowing the Plaintiffs to Call Rebuttal Evidence
The Context
of the Application
[466] At the close of the defendants'
case, the plaintiffs applied for leave to call a rebuttal witness.
The witness of her own accord had contacted Robert Borden, one
of the counsel for most of the plaintiffs, three days before
the defendants closed their case. The witness, Amy Jo Ehman had
been a CBC reporter in the spring of 1991 and related to Mr.
Borden a conversation she had with Dueck at that time respecting
his investigation. The plaintiffs sought to introduce her evidence
on the basis that it pertained to malice, a material element
in the case. She had heard that Dueck had testified at this civil
trial that he did not believe the ritualistic and satanic aspect
of the children's allegations. Her proposed evidence was to the
effect that, as a CBC reporter, she had been advised by Dueck
in 1991, before the charges were laid, that he did believe this
aspect of the case. [467] I was somewhat confused as to the nature
of the plaintiffs' application. Robert Borden stated that the
application was to call rebuttal evidence, not to reopen the
plaintiffs' case. He said that the proposed evidence was tendered
to show that Dueck had malice in that he was in effect telling
the public through the media that the case involved ritualistic
and satanic abuse when he had no belief in this aspect of the
case. Yet he maintained that the plaintiffs were not attempting
to bolster their case with the newly discovered evidence but
tendered it to contradict Dueck's evidence as to what he said
178
about the case to others, an
issue which he said had not been addressed as part of the plaintiffs'
case. He also maintained that this was a material issue, not
a collateral one and that it involved Dueck's credibility.
[468] The application was opposed
by counsel for Dueck. He contended that the plaintiffs had been
aware long before the trial of the issue of Dueck's belief respecting
this aspect of the case. He referred to portions of Dueck's examinations
for discovery in which he testified that he did not believe in
the ritualistic or satanic aspect of the case. This testimony
was read in by the plaintiffs as part of their case. Counsel
for Dueck maintained that the proposed rebuttal evidence constituted
a challenge to Dueck's testimony on a collateral matter and accordingly
violated the collateral fact rule. He also maintained that Robert
Borden had failed to disclose to the defendants and the court,
in a timely fashion, that he would be seeking to call Ehman as
a rebuttal witness. Although Dueck was no longer on the witness
stand when Robert Borden learned that Ehman was a potential witness,
Miazga was still on the witness stand.
[469] Robert Borden, with knowledge
of Ehman's potential testimony, availed himself of the opportunity
to cross-examine Miazga on matters that touched on Dueck's beliefs
in the ritualistic and satanic aspect of the case. Robert Borden
never advised counsel for the defendants or the court that he
would be applying to call Ehman until Sonja Hansen had subsequently
given evidence and the defendants had closed their case. Counsel
for Dueck said that had he been aware of Ehman as a potential
witness, he could have interviewed her and would have availed
himself of the opportunity to ask questions of either of the
prosecutors on this issue. He submitted that Dueck would be prejudiced
if the plaintiffs were allowed to reopen their case or to call
rebuttal evidence. Counsel for the other defendants took no position
on the application provided the proposed witness did not refer
to any of the other defendants in her testimony.
179
[470] Counsel for Dueck was
not available to attend trial the following day, a Friday, so
I reserved my decision on the application until the trial reconvened
the following week. Over the weekend I received further written
submissions from counsel respecting the issue of when Robert
Borden was first contacted by Ehman and when he first disclosed
to counsel for the defendants that he might be applying to the
court for leave to call her as a rebuttal witness. When the trial
resumed, I provided counsel with the opportunity to make any
further submissions on the plaintiffs' application and, in particular,
on the late disclosure issue referred to in the correspondence.
I granted the plaintiffs' application to call rebuttal evidence
with reasons to follow.
[471] As a condition of granting
the plaintiffs' application, I granted leave to Dueck to call
such surrebuttal evidence respecting the issue raised by the
rebuttal evidence that his counsel deemed advisable. I was prepared
to adjourn the trial, if necessary, to allow him to make arrangements
to call or recall any witnesses in this respect. I also indicated
that I was prepared to consider addressing the late disclosure
issue with an order of costs against Robert Borden if Dueck wished
to pursue the matter. I proceeded to hear the rebuttal evidence
of Ehman which consisted of examination-inchief by Robert Borden
and cross-examination by David Gerrand. She was on the witness
stand for only a few minutes. Dueck elected to call no further
evidence and I heard the final submissions on behalf of the parties
on the case itself. My reasons follow for allowing the plaintiffs
to call rebuttal evidence.
The Law Pertaining
to Rebuttal Evidence and Reopening a Case
[472] The plaintiffs relied
upon R. v. Krause, [1986] 2 S.C.R. 466. The case sets out many
of the principles to be considered by the court in an application
of this nature but the ultimate outcome of the case does not
assist the plaintiffs. The court overturned the conviction of
the accused and directed a new trial on the basis that the trial
judge had
180
erred in permitting the Crown
to call rebuttal evidence. There are however several more recent
appeal court decisions on this issue in the context of criminal
cases. There are also a few appeal court and trial court decisions
in civil cases that deal with this issue.
[473] It is trite law that
neither a plaintiff nor the Crown can split its case by adducing
evidence under the guise of reply evidence or by means of reopening
its case. See J. Sopinka, S.N. Lederman & A.W. Bryant, The
Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999),
para. 16.158. It is also clear from the case law that there is
a high onus that must be met by an applicant desiring to call
rebuttal evidence or to reopen its case. Because of the significant
potential for prejudice to an accused, the threshold is somewhat
lower in civil cases than it is in criminal cases. Usually a
new trial is directed in a criminal case if rebuttal evidence
is improperly admitted. The law is also clear that adducing rebuttal
evidence and reopening one's case are distinct issues.
[474] A recent case in our
Court of Appeal, R. v. Fisher, 2003 SKCA 90, [2003] S.J. No.
597, reviews many of the cases on this issue. The conclusion
of the court was that the trial judge did not err in allowing
the Crown to adduce rebuttal evidence. Sherstobitoff J.A., writing
for a unanimous court states at para. 83: 83 The Supreme Court
of Canada in R. v. G. (S.G.), [1997] 2 S.C.R. 716, defined the
difference between allowing the Crown to re-open its case and
allowing the Crown to call rebuttal evidence as follows at p.
737: [39] In particular, the Crown should not be permitted to
gain the unfair advantage which will inevitably arise from "splitting
its case". The rule against "splitting the case"
developed primarily in the context of applications to adduce
rebuttal evidence by the Crown. Applications to adduce rebuttal
evidence and to reopen the case are "close cousins",
but not "identical twins": R. v. F.S.M. (1996), 93
O.A.C. 201, at p. 208. Rebuttal evidence is
181
properly admissible where the
matter addressed arises out of the defence's case, where it is
not collateral, and generally, where the Crown could not have
foreseen its development: R. v. Krause, [1986] 2 S.C.R. 466,
at p. 474; R. v. Aalders, [1993] 2 S.C.R. 482, at pp. 497-98.
With rebuttal evidence, it is the rules of the adversarial process
that justify the admission of the reply evidence. In an application
to reopen, the Crown is required to establish that the evidence
is material to an issue that is properly part of the Crown's
case. In order to succeed, the Crown must also explain why the
evidence was not led earlier and must justify this departure
from the normal rules of the adversarial process. See F.S.M.,
supra, at p. 208.
[475] In the circumstances
of the case before me, the plaintiffs would also be entitled
to the exercise of the court's discretion to permit them to reopen
their case to admit the proposed evidence. Although the plaintiffs
proffered the evidence on the basis of rebuttal evidence, they
contend that it is material to an issue that is properly part
of its case, namely the issue of malice. They obviously did not
lead the evidence as part of their case because they were not
aware of it when their case was closed or even when the defendants
applied for their non-suit motions. The plaintiffs did not become
aware of the potential evidence until the defendants were well
into the presentation of their case.
[476] I will refer to some
of the recent Supreme Court of Canada decisions in criminal cases
that elaborate on the principles to be applied in considering
whether rebuttal evidence (which is often referred to as "reply"
evidence) should be allowed. In R. v. Chaulk, [1990] 3 S.C.R.
1303, at paras. 116 to 121, the court upheld the admission of
rebuttal evidence respecting insanity. In R. v. Biddle, [1995]
1 S.C.R. 761 at 778, para. 30, the court held that the admission
of rebuttal evidence by the Crown respecting alibi was improper
and that the resulting prejudice to the accused could not be
cured by granting the accused the right to call surrebuttal evidence.
In R. v. Melnichuk, [1997] 1 S.C.R. 602, a new trial was ordered
because the trial judge had permitted the Crown to 182 adduce
rebuttal evidence (respecting the granting of a mortgage) in
breach of the collateral fact rule.
[477] I have also considered
R. v. S.G.G., [1997] 2 S.C.R. 716, a decision in a criminal case
referred to in the quotation from the R. v. Fisher decision cited
above. It elaborates on the principles to be applied in considering
whether the Crown should be permitted to reopen its case. A new
trial was ordered because just before counsel were prepared to
address the jury, the trial judge permitted the Crown to reopen
its case and call a material witness who could place the accused
at the scene of the crime. The court held that the discretion
of the trial judge to permit the Crown to reopen its case narrows
as the case proceeds. The primary consideration is the potential
prejudice to the accused and this usually cannot be cured by
allowing the accused to take the stand and testify in response
to such evidence.
[478] R. v. P.(M.B.), [1994]
1 S.C.R. 555 is to the same effect. In that case the Crown was
permitted to reopen its case before the defence called evidence
but after stating its intention to call alibi evidence. A Crown
witness was recalled to correct her previous evidence respecting
the date the accused lived in her house, an issue related to
the date of an alleged sexual assault. The decision of the Ontario
Court of Appeal quashing the conviction was upheld.
[479] These criminal cases
illustrate that only in exceptional circumstances is the Crown
allowed to adduce rebuttal evidence or to reopen its case. The
primary consideration is the potential prejudice to the accused.
But newly-discovered evidence is one of the factors the trial
judge can consider in the exercise of the discretion to permit
rebuttal evidence. In R. v. Proctor (1992), 69 C.C.C. (3d) 436,
the Manitoba Court of Appeal upheld the decision of the trial
judge to permit the Crown, after the case for the defence was
closed, to adduce the evidence of statements made by the accused
to a
183
psychiatric nurse. This evidence
was not known to the Crown beforehand. The accused's defence
was insanity. Although a new trial was ordered on other grounds,
the court upheld the decision of the trial judge to permit the
Crown to adduce the rebuttal evidence. This case was quoted with
approval in R. v. Fisher, supra, para. 86.
[480] There are not many civil
cases that elaborate on the principles to be considered by a
trial judge when confronted with an application by a plaintiff
to adduce rebuttal evidence or to reopen its case. Some cases
merely adopt the principles set out in the criminal cases I have
referred to. See Allcock, Laight & Westwood Ltd. v. Patten
et al., [1967] 1 O.R. 18 (C.A.). In that case the trial judge
was found to be in error in admitting rebuttal evidence that
was in reality confirmatory only of the plaintiff's case. But
in Sood v. College of Physicians & Surgeons (Saskatchewan),
[1996] 2 W.W.R. 668 (Sask. Q.B.), the court held that rebuttal
evidence called to counter the testimony of a defence witness
that was of the nature of alibi evidence, did not constitute
a splitting of the case for the College. It was not a case of
the College calling evidence to buttress its case on matters
it was required to prove to establish its case.
[481] There is a discretionary
power vested in a trial judge to allow a party to reopen its
case to introduce evidence even though that evidence may not
be the proper subject of reply. Sopinka, supra, at para. 16:159.
Most civil cases that address the issue of reopening a case pertain
to applications made after judgment has been entered. In some
provinces there are rules of procedure which apply to such applications.
That is not the case before me. It is sufficient to observe that
the trial judge has a wider discretion in allowing a plaintiff
to reopen its case before judgment has been entered. See A.W.
Mewett, Q.C. & P.J. Sankoff, Witnesses, vol. 1 (Toronto:
Carswell (current to Rel. 2003- 1)), at para. 2.5(c)(i):
(c) Re-Opening the Case
184
(i) Civil Cases
While this will normally constitute
the totality of the evidence in the case, it is possible for
the trial judge, in his or her discretion, to permit a party
to "re-open" the case, after it has been closed. In
civil cases, an application to reopen may be made after the evidence
has been completed but before judgment has been delivered, after
judgment has been delivered but before that judgment has been
entered and after judgment has been entered. Needless to say,
in the first two cases, the discretion of the trial judge is
wider than in the last case, and will basically depend upon his
or her view of whether the interests of justice demand it-usually
because a party has been misled in some way by the other or because
of some inadvertence on his or her own part. Most of the Rules
permit re-opening in some form or other. . . .
[482] The historical rationale
for the rule against splitting one's case in a civil action is
set out in J. Sopinka & S.N. Lederman, The Law of Evidence
in Civil Cases, (Toronto: Butterworths, 1974) at 517, as follows:
At the close of the defendant's case, the plaintiff has a right
to adduce rebuttal evidence to contradict or qualify new facts
or issues raised in defence. As a general rule, however, matters
which might properly be considered to form part of the plaintiff's
case in chief are to be excluded. A plaintiff is therefore precluded
from dividing his evidence between his case in chief and reply,
for two very practical reasons: ". . . first, the possible
unfairness of an opponent who has justly supposed that the case
in chief was the entire case which he had to meet, and, secondly,
the interminable confusion that would be created by an unending
alternation of successive fragments of each case which could
have been put in at once in the beginning."
185
[483] The dynamics of a civil
case are quite different from those of a criminal case. The potential
of prejudice to a defendant by the admission of rebuttal evidence
in a civil case is often less than that to an accused in a criminal
case. On the other hand, the potential for "the interminable
confusion that would be created by an unending alternation of
successive fragments of each case" is greater in a civil
case than a criminal case. It would appear that the courts are
beginning to move away from the "categories" approach
to this issue and take a more principled or functional approach,
much like what has been taking place in the law of evidence where
decisions are driven by the circumstances of each particular
case.
The Ruling
on the Application
[484] I concluded in the case
before me that although the proposed evidence related to a material
element of the plaintiffs' case that they are required to prove,
the evidence was not known to the plaintiffs, nor could it have
been known to them through proper diligence, when they closed
their case. The admission of the evidence would not contravene
the collateral fact rule as the evidence pertained to a substantive
issue in the case rather than a subsidiary issue. In any event,
even if it did pertain to a collateral fact, it would contradict
a previous inconsistent statement made by Dueck respecting his
belief about the ritualistic and satanic aspect of the case.
As such it would constitute a recognized exception in law to
the collateral fact rule and because Dueck is a party to the
action, it would be admissible for the truth of its contents
under the admission exception to the hearsay rule. See Sopinka,
supra, at paras. 16.133-134 and 16.172. [485] In the circumstances,
I concluded that the plaintiffs were entitled to reopen their
case to introduce the proposed evidence and were also entitled
to the admission of it on the basis of reply evidence. I was
of the view that any potential prejudice to Dueck could be addressed
by affording him the opportunity, accompanied by an order for
costs,
186
to give surrebuttal evidence
himself or to call such evidence from the prosecutors or from
any other witness with relevant evidence respecting the issue
at hand. Dueck alleged no prejudice other than the loss of the
opportunity to examine the two prosecutors on this issue. His
belief on the issue was before the court in the read-ins from
his examinations for discovery. He confirmed this evidence by
his testimony at trial. It is unlikely that he would have conducted
his defence or given his evidence differently even if he had
been aware of the newly discovered evidence.
[486] I also considered the
respective appeal consequences of allowing or disallowing the
rebuttal evidence. It would not be available to the Court of
Appeal if I disallowed it. If I was found on appeal to have erred
in disallowing it, the Court of Appeal might well have no option
but to order a new trial at tremendous cost and inconvenience
to the parties. On the other hand, if I am found on appeal to
have erred in allowing it, the Court of Appeal can ignore the
rebuttal evidence and can likely render its decision without
ordering a new trial.
The Disposition
of the Case Itself
[487] The parties to this action
previously consented to an order of Dovell J. severing the trials
of the issues of liability and quantum of damages and deferring
the determination of costs until the quantum of damages is determined.
I conclude that the defendants, Matthew Miazga, Brian Dueck and
Carol Bunko-Ruys, maliciously prosecuted the plaintiffs. They
are entitled to have judgment against these defendants in the
amount to be subsequently determined. I conclude that Sonja Hansen
did not maliciously prosecute the plaintiffs. The plaintiffs'
action against her is dismissed.
[488] The parties reached an
agreement that the Estate of Richard Quinney would be neither
entitled to costs nor liable for costs respecting the action.
I direct that the
187
default costs provisions in
The Queen's Bench Rules shall not apply to the dismissal of the
action against the Estate of Richard Quinney or against Sonja
Hansen, nor shall they apply to the judgment granted against
Matthew Miazga, Brian Dueck and Carol Bunko- Ruys.
The Counterclaim
[489] Matthew Miazga and Sonja
Hansen, two of the defendants in the main action, are the plaintiffs
in the counterclaim against Richard Klassen. Richard Klassen
is one of the plaintiffs in the main action and the sole defendant
in the counterclaim. The Estate of Richard Quinney abandoned
its counterclaim against Richard Klassen by agreement of the
parties on the basis that no party would be entitled to costs
nor liable for costs respecting the counterclaim. The evidence
in the main action, by the agreement of the parties, was applied
to the counterclaim. Portions of the examination for discovery
of Richard Klassen were read in as evidence. No oral testimony
was adduced by any of the parties because the whole of the evidence
adduced in the main action applies to the counterclaim.
[490] Counsel for Miazga and
Hansen suggested at trial that the outcome of the counterclaim
would likely be governed by the outcome of the main action. If
the plaintiffs were successful in the main action, the counterclaim
should be dismissed and vice versa. But as there has been mixed
success in the main action, I must consider the counterclaim
on its merits.
[491] Miazga and Hansen, the
two prosecutors, claim that Richard Klassen published and distributed
two posters and a letter that contained statements of fact that
defamed them. Richard Klassen resists the claim on the basis
that any statements contained in the posters and the letter were
true as established by the evidence in this trial
188
and any expressions of opinion
constitute fair comment as defined by the law. He also contends
that the first poster was not authored or published by him but
he admits that one or two copies may have been inadvertently
distributed by him in conjunction with the distribution of other
papers. The words in the posters and letters relied upon by Miazga
and Hansen as defamatory are as follows:
(a) in a document distributed
widely including the postering in public places in Saskatoon
at various times since February 10, 1993:
"crooked prosecutors Sonia
Hanson (sic), a crooked prosecutor, used the above manufactured
evidence to advance her career.
Matt Miazga, a crooked prosecutor,
used the above manufactured evidence to advance his career."
(b) in a document over the
signature "Richard Allen Klassen" distributed widely
including by postering in public places in Saskatoon at various
times since February 10, 1993 included the following entry:
"I, Richard Allen Klassen,
demand that Crown Prosecutor Matt Miazga be arrested for covering
up the rape and sodomy of an eight year old girl, in order to
keep his manufactured case together. I, Richard Allen Klassen,
demand that Crown Prosecutor Sonia Hanson (sic), be arrested
for covering up the rape and sodomy of an eight year old girl,
in order to keep her manufactured case together.
(c) in a letter dated November
11, 1993 and distributed widely including by postering in public
places in Saskatoon at various times since February 10, 1993
included the entry: "Crown Prosecutor Matt Miazga should
be held criminally responsible for aiding and abetting the criminal
actions of the aforementioned people."
189
[492] Some of the terms used,
and the context in which they are used, are capable of different
interpretations. Given a contextual yet literal interpretation,
the statements of fact are not actionable because they have been
proven to be true. In the circumstances of this case, the remaining
terms are not actionable because they are expressions of opinion
or desire and constitute fair comment.
[493] The publication and distribution
by Richard Klassen of these kinds of materials was foolish. In
most circumstances they would be defamatory. He unnecessarily
risked incurring liability to the prosecutors for damages. But
in view of what he suffered at the hands of the prosecutors and
others involved in the criminal proceedings wrongfully brought
against him, his frustration is understandable. Fortunately,
he redirected it into the considerable effort he has been required
to expend in the preparation and presentation of his civil case.
It has provided him with a much more effective and beneficial
remedy than he could have ever achieved through his posters or
letters.
[494] The counterclaim of Matthew
Miazga and Sonja Hansen is dismissed against Richard Klassen.
I direct that the default costs provisions in The Queen's Bench
Rules shall not apply to the dismissal of the counterclaim against
Richard Klassen. The issue of costs shall be deferred until the
issue of the quantum of damages is determined in the main action.
J.
page
5 < < < |
> > > beginning
|
