C A N A D A Q.B.G. No. 271 A.D. 1994
PROVINCE OF SASKATCHEWAN
IN THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF SASKATCHEWAN
BETWEEN:
DENNIS KVELLO, DIANE KVELLO, SHELDON KVELLO,
SHERRY KVELLO by her Litigation Guardian, Diane Kvello,
KARI KLASSEN, RICHARD KLASSEN, PAMELA KLASSEN,
MARIE KLASSEN, JOHN KLASSEN, MYRNA KLASSEN,
PETER DALE KLASSEN, and ANITA JANINE KLASSEN
Plaintiffs
-and-
MATHEW MIAZGA, SONJA HANSEN, RICHARD QUINNEY,
BRIAN DUECK and CAROL BUNKO-RUYS
Defendants
________________________________________________________________________
PLAINTIFFS' BRIEF OF LAW AND
ARGUMENT
This brief is submitted by:
Richard Klassen
Whose address for service is:
225 Pangman Street
Box 746 Outlook, SK.
S0L 2N0
Telephone: 306-867-9295
Facsimile: 306-867-9260
This brief is a combined brief dealing with all the Plaintiffs in the above action including Richard Klassen who is acting for himself.
INTRODUCTION
In July, 1991, the Klassen and Kvello families were charged with numerous counts of sexual assault of children. The members of these families maintained their innocence throughout. Later, their charges were stayed but the accused were never vindicated.
They continue to suffer the wrath of the community, and their children and extended family, like them, have suffered profoundly.
This claim is about an investigation obsessively pursued by a Saskatoon Police Officer "shutting his eyes to the obvious" and a prosecution that continued unabated even against overwhelming evidence "fairly shouting probably not guilty". Tragically, it is about our legal system having gone awry.
In 1989, an investigation was commenced at the instance of the City of Saskatoon Police Department and the Saskatchewan Department of Social Services relating to Peter Klassen Sr., and a "certain foster home". In July, 1991 criminal charges were laid against all of the Plaintiffs. The Plaintiffs Richard Klassen, Kari Klassen, Peter Dale Klassen, Anita Klassen, John Klassen and Myrna Klassen were all imprisoned from July 10th, 1991 until July 16th, 1991. The Plaintiffs Pamela Klassen and Marie Klassen were arrested and held for several hours in the Saskatoon City Police cells. The Kvellos were released after charges were laid. See statement as to documents of the Defendant Miazga # 346-6 to 346-11, Book 2, Tab 40. As well see Book 1, Tab 14, Dueck documents #'s 627-633.
A preliminary hearing commenced on December 2nd 1991 relating to all of the Plaintiffs with the exception of the two youths, Sheldon Kvello and Sherry Kvello. The above Plaintiffs were held over to stand trial on numerous charges which included Michael London Ross, Michelle Mimi Ross, Kathleen Jessica Ross and Trevor Morin.
As the criminal proceedings and investigation ensued, charges were dismissed or withdrawn against some of the Plaintiffs. The Kvello's were represented by Haubrich Borden Trach and Carlson, Barristers and Solicitors; Robert Borden of the firm was in charge of the file. The Klassen's were represented by Albright and Company, Barristers and Solicitors; Darryl Labach was in charge of the file.
After the 20-day preliminary hearing before Judge Robert Finley (which commenced on December 2, 1992, and ended January 14, 1992) the Plaintiffs were committed to stand trial on the following charges. Taken from Indictment, statement as to documents of the Defendant Miazga # 343-3 to 343-5, Book 2, Tab 33
"Peter Klassen, Marie Klassen, Dennis
Kvello, Diane Kvello and
Pamela Klassen, all of the City of Saskatoon, in the Province
of
Saskatchewan, and Peter Dale Klassen, Anita Janine Klassen, John
Klassen, Myrna Klassen, Richard Klassen and Kari Klassen, all
of
the City of Red Deer, in the Province of Alberta, stands charged:
That they, the said Peter Klassen, Marie
Klassen, Dennis
Kvello, Diane Kvello, Pamela Klassen, Peter Dale Klassen, Anita
Janine Klassen, John Klassen, Myrna Klassen, Richard Klassen
and
Kari Klassen, between the 1st day of January A.D. 1984, and the
31st day of December A.D. 1990, at or near the City of Saskatoon,
in the Province of Saskatchewan, did commit a sexual assault
upon
Kathleen Jessica Ross, contrary to the provisions of the Criminal
Code;
That they, the said Peter Klassen, Marie
Klassen, Dennis
Kvello, Diane Kvello, Pamela Klassen, Peter Dale Klassen, Anita
Janine Klassen, John Klassen, Myrna Klassen, Richard Klassen
and
Kari Klassen, between the 1st day of January A.D. 1984, and the
31st day of December A.D. 1990, at or near the City of Saskatoon,
in the Province of Saskatchewan, did commit a sexual assault
upon
Michelle Mimi Ross, contrary to the provisions of the Criminal
Code;
That they, the said Peter Klassen, Dennis
Kvello, Diane
Kvello, Pamela Klassen, Peter Dale Klassen, Anita Janine Klassen,
John Klassen, Myrna Klassen, Richard Klassen and Karl Klassen,
between the 1st day of January A.D. 1964, and the 31st day of
December A.D. 1990, at or near the City of Saskatoon, in the
Province of Saskatchewan, did commit a sexual assault upon Michael
London Ross, contrary to the provisions of the Criminal Code;
That she, the said Pamela Klassen, between
the 10th day of
May A.D. 1984, and the 1st day of June A.D. 1990, at or near
the City of Saskatoon, in the Province of Saskatchewan, did commit
a sexual assault upon Trevor Heinrichs, contrary to the provisions
of the Criminal Code;
That he, the said Peter Klassen, between the 10th day of May A.D. 1984, and the 1st day of June A.D. 1990, at or near the City of Saskatoon, in the Province of Saskatchewan, did commit a sexual assault upon Crystal Heinrichs, contrary to the provisions of the Criminal Code.
In February 1992, all charges were stayed against the Plaintiffs
named as young offenders. On February 10, 1993 the remaining
charges were stayed against the adult Plaintiffs. The Plaintiffs
commenced an action in this Honourable Court in August 1994.
The Plaintiffs allege several causes of action against the defendants relating to the impugned criminal investigation, arrest, detention, and prosecution. They claim general, aggravated, special and punitive damages.
The defendants have advanced defences to all of the causes of action. None of the defendants seek indemnification or contribution from any of the other defendants.
The Plaintiffs allege, inter alia, that they have been wronged under the torts of malicious prosecution and false imprisonment. As it relates to malicious prosecution, the burden of proof that rests upon the Plaintiffs is onerous, as they must prove that the Defendant prosecutors acted with malice. It is accepted that the Attorney General and his or her prosecuting agents are immune from civil liability unless the plaintiffs can establish that: the prosecutor did not have "reasonable and probable cause upon which to found the charges" brought against the plaintiffs; and the prosecution was motivated by an improper purpose which in law constitutes malicious conduct and intentional fault.
The Plaintiffs acknowledge that the requirement of malice in a malicious prosecution proceeding is an independent question of fact, and the burden of proving malice lies on them. It will be argued that the burden may be discharged by showing either what the actual motive was, and that it was improper, or the circumstances were such that the prosecution can only be accounted for by imputing some wrong and indirect motive to the defendant.
The question is simply put: how is it possible that these twelve people could be charged with one of the most horrendous offences under our criminal law based upon such unreliable and contradictory evidence? The defendants had to have known that egregious consequences would flow from relying on such evidence. It is asserted that no ordinarily prudent and cautious man, placed in the position of these accusers, could have concluded that any one of the Plaintiffs was probably guilty of the crimes imputed.
And how was it that the defendants, faced with a prosecution of little merit based on an inadequate investigation could maintain the charges for 20 months? The prosecution could only have led to a "disastrous acquittal". Nevertheless, they continued to prosecute, and further injured the Plaintiffs by staying the charges, and attributing the stay to something other than the Plaintiffs' innocence.
It is the Plaintiffs' contention that if malice cannot be proved in the circumstances of this case, then malice could not be proved at all. One of the Plaintiffs was blind, walked feebly and transported by wheelchair. In fact, she was physically unable to carry out the criminal conduct alleged. Even though none of the Plaintiffs had any history of unlawful sexual conduct, they were improperly charged and forever left to defend the accusations. They say the Defendants were so reckless, so cavalier and uncaring in relation to each of the Plaintiffs that their actions cannot be justified in law.
The Plaintiffs go further: all of the Defendants acted without a moral or legal authority and in a way so contrary to accepted rules of fairness as warrants significant damages. A damage award for each Plaintiff in an amount exceeding $1,000,000 is by the authorities justified. Moreover, taking into consideration a similar Saskatchewan malicious prosecution case involving the Defendant, Quinney, the award sought is reasonable.
As in Dix, the legal analysis will first address the tort of malicious prosecution, breaking that analysis down into a review of the elements of the tort and the application of the law to the facts for each of the constituent elements. That analysis will then continue with a separate specific consideration of the final element, being malice or improper purpose, and an application of the law to the facts.
There will be an analysis of the law as it relates to the other causes of action including the torts of false imprisonment, negligent investigation and charter breach.
Due to the number of parties, the investigation and prosecution timelines, the unique nature of the criminal prosecution and of the claim itself, the facts expressed here will necessarily be voluminous.
THE PLAINTIFFS
Dennis Kvello
20. Born June 19th, 1948. Charged on July 10th, 1991 with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross, one count of sexual assault on Kathleen Jessica Ross, one count of sexual assault on Sardy Hardy Mayes, one count of sexual assault on Shannavia Mayes and one count of sexual assault on Stephan Mayes. See Information signed July 6th, 1991. Dueck statement as to document # 514. Book 1, Tab 8.
Diane Kvello
21. Born January 26th, 1953. (The wife of Dennis Kvello) Charged on July 10th, 1991 with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross, one count of sexual assault on Kathleen Jessica Ross, one count of sexual assault on Sardy Hardy Mayes, Shannavia Mayes and one count of sexual assault on Stephan Mayes. See Information signed July 6th, 1991. Book 1, TAB 8.
Sheldon Kvello
22. Born May 26th, 1973, Sheldon Kvello (son of Diane and Dennis Kvello) was seventeen when he was arrested charged on July 10th, 1991 for one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross, one count of sexual assault on Kathleen Jessica Ross, one count of sexual assault on Sardy Hardy Mayes, one count of sexual assault on Shannavia Mayes and one count of sexual assault on Stephan Mayes. See information signed July 6th, 1991. Dueck statement as to document # 515. Book 1, Tab 9.
Sherry Kvello
23. Born June 9th, 1976, Sherry Kvello (daughter of Diane and Dennis Kvello) was fifteen, when she was arrested on July 10th 1991 with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross, one count of sexual assault on Kathleen Jessica Ross, one count of sexual assault on Sardy Hardy Mayes, one count of sexual assault on Shannavia Mayes and one count of sexual assault on Stephan Mayes. See Information signed July 6th, 1991. Book 1, Tab 9.
Kari Klassen
24. Born September 1st, 1964, (the wife of Richard Klassen), Kari Klassen was charged on July 10th with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross one count of sexual assault on and Kathleen Jessica Ross. See Information signed July 6th,1991. Book 1, Tab 8.
Richard Klassen
25. Born March 27th, 1961, (husband of Kari Klassen) Charged on July 10th with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross and one count of sexual assault on Kathleen Jessica Ross. See Information signed July 6th, 1991. Book 1, Tab 8.
Pamela Klassen
Born August 6th, 1957 and is the single sister of Richard, Peter Dale, and John Klassen. Pamela Klassen. Charged on July 10th with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross one count of sexual assault on and Kathleen Jessica Ross and one count on Trevor Heinrichs and Michael Klassen. See Information signed July 6th, 1991. Book 1, Tab 8.
a) Lived with her parents;
b) Had remained single throughout;
c) Started out fostering in 1983;
d) Began by taking the usual foster parent training courses;
e) Fostered newborns to age 6;
f) Shortly thereafter began to foster children with very special
needs;
The Plaintiff Pamela Klassen began working with disabled children
in 1983 and as a result she attended many training sessions at
Alvin Buckwold rehab. It was not uncommon for the Plaintiff Pamela
to receive anywhere from, 6 to 8 children at a time. The Plaintiff
Pamela worked extensively through the crisis unit as well.
The Plaintiff Pamela Klassen was regarded by social services as a good and stable home. She began to receive terminally ill foster children and would work closely with the department of Social Services and the medical profession.
In 1985, the plaintiff Pamela Klassen was asked to take a newborn baby who was born with a hairy melanoma covering much of his forehead. The plaintiff Pamela Klassen took this newborn into care and bonded almost immediately with him. The plaintiff Pamela Klassen was asked by the Department of Social Services whether she would be willing to take this baby permanently and she accepted.
In 1988 the plaintiff Pamela requested that the Department of Social Services cut back on the amount of children that she received. From this point on the plaintiff Pamela Klassen would look after no more than 3 children at a time.
The plaintiff Pamela Klassen was the first plaintiff to have met the defendant Brian Dueck. The defendant Brian Dueck would often attend the plaintiff Pamela's residence to inform her that she was under investigation for child molestation and that she should have no contact with her family members. The Department of Social Services contacted the plaintiff Pamela Klassen sometime in the latter part of 1988 and informed the plaintiff Pamela Klassen that she was to have no contact with her father Peter Klassen as he had been charged with a sexual interference upon two children. It should be noted that the two children were not foster children.
The plaintiff Pamela Klassen moved out of her parent's home after she received this informal warning and took up residence with her son Michael Klassen.
The plaintiff Pamela Klassen received many more visits from the defendant Dueck over a period of ? years and on one such visit she was told "your brothers can run but they can't hide". The defendant Dueck stated this as he believed that the plaintiff Pamela Klassen's brothers moved out of province to escape charges. It should be noted at this point in time there was no indication other than those words spoken by the defendant Dueck that any other family member was under investigation.
The plaintiff Pamela Klassen continued on to foster Michael Klassen as a permanent ward she eventually received legal custody of Michael Klassen. Michael Klassen was apprehended from the plaintiff Pamela Klassen on July 10th 1991. She received one visit with him and as a result of the visit a charge of sexual interference on Michael Klassen arose. The plaintiff Pamela Klassen kissed her son goodbye and has a result of this kiss it was determined by the Department of Social Services that Pamela Klassen should not be allowed any subsequent visits with her son Michael. A secretary observing this kiss later claimed in court that she believed it was a "prolonged kiss". This charge was withdrawn at preliminary hearing stage.
The plaintiff Pamela Klassen was arrested on the same day as her mother Marie Klassen and both spent several hours in the lock up cells at the city of Saskatoon Police Department. They were released at approximately 11 o'clock p.m. in where the plaintiff Pamela Klassen pushed her mother in the wheelchair home more than 20 blocks. The plaintiff Pamela Klassen was told that she could have no contact with other members of her family until the court proceedings ended.
The plaintiff Pamela Klassen's son Michael Klassen was taken away from her permanently on July 10th 1991, and accept for that brief visit the plaintiff Pamela Klassen has never seen him again.
Marie Klassen
Born September 6th, 1936, (mother of Richard, Pamela, Peter Dale and John) Charged on July 10th 1991 with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross and one count of sexual assault on Kathleen Jessica Ross. See Information signed July 6th, 1991. Book 1, Tab 8.
In 1948 Marie Klassen received an injury to her spine when a horse and buggy dragged her down a grid road for a mile. Marie Klassen was left partially paralyzed on her left side as a result of this incident. She was later hospitalized with T.B. and placed in a sanitarium in Saskatoon.
Marie Klassen was thirteen when she was diagnosed with T.B. and spent two years in the Sanitarium. She walked with a severe limp on one side and was never able to run. As long as the children can remember, their mother would tightly clinch her hands, particularly while walking.
By the late 1970s, Marie required the use of a walker and relied on the help of others to enter and exit a motor vehicle. She required the use of a bath chair and handrails to bathe. These accessories and the walker were supplied to her through the Kinsmen Club.
Marie Klassen began a decade of foster parenting in1969. She was responsible for newborns, and, at times, toddlers. Marie decided to give up fostering in 1979 as a result of her deteriorating condition. She stayed home as a housewife and her husband remained a painter.
Others often saw Marie Klassen as an affectionate caring person who loved children and felt sorry for children who came from bad homes.
In 1988 Peter Klassen was arrested and charged with having committed a sexual assault on the Keller children. Marie Klassen was shocked to hear the news that her husband had committed such an offence and advised him that she no longer wanted him in her home. As a result Peter Klassen moved -- out on his own, and Marie Klassen and Pamela Klassen stayed together in the same home. Peter Klassen was eventually allowed to move back after several months had passed and he had quit drinking.
When Marie Klassen was charged her life as she knew it began to fall apart. She watched as her children, Richard, Pamela, Peter Dale and John were rounded up and thrown into jail for offences she knew they did not commit. She began to cry when she was put in the jail cell. Her daughter Pamela and was put in the cell next to hers. Marie then tried to console her daughter who had just lost the custody of her adopted son, Pamela Klassen, was constantly crying while in custody.
Marie spent the next six hours consoling her daughter telling her that everything was going to be all right. Marie Klassen and her daughter were released from the jail at 11:00 o'clock that night and were put out on the street without money and without a ride home. Pamela pushed her mother in her wheelchair fifteen blocks home.
Marie was there when her daughter. Pamela, took many pills in a suicidal state, and was hospitalized.
Marie Klassen knew that the rest of her family members were also picked up and jailed in Red Deer, Alberta. She wanted to talk with them but at the time was unable to do so. Marie Klassen spent the next six days at the hospital with her daughter Pamela and awaited the arrival of her sons and their wives from Red Deer. She had so looked forward to seeing her family again, but after they arrived it was ordered by the court that the Red Deer people could not communicate with the charged in Saskatoon. Marie was devastated by this news.
In December of 1991 the preliminary hearing began. This was the first time that Marie was allowed to see her children since the charges were laid in July. The children wheeled their mother into the courtroom everyday to have her sit behind a screen and listen to the horrible allegations that the Ross children were making.
She was made to listen as the Ross children tell stories of how she would chase them down the street, and drag them back to the house to make them have sex with her in the bathtub. Marie could not hear or see well and would often ask what the children were saying. Her children would have to tell her that the Ross children were trying to portray her as a monster.
The Preliminary Hearing was adjourned over Christmas and resumed again in January. That Christmas was a sad time. Marie had the opportunity to have her children together, all the while knowing what was yet to come. She watched her grandchildren open presents, as they tried to appear as nothing had happened to them. She watched her children as they tried to enjoy the time with their families, time that had been taken away from them because of these horrendous charges that they were now facing.
Marie attended the preliminary hearing everyday. She was shocked when told that all accused would all be held-over to stand trial. Marie Klassen, who was clinically blind, hard of hearing and confined to a wheelchair and was facing a jail sentence for crimes that she could not have possibly committed.
The trial date was set and Marie prepared herself as best she could for what was to come. She cried many nights over her family being torn apart by these charges, and about what would happen to everyone in the end. One week before the trial was to begin, Peter Klassen was offered a deal: if he were to plead guilty to four counts of sexual assault, the rest of the charges against the remaining Klassen's and Kvello's would be stayed. Peter Klassen accepted the deal and was later sentenced to four years at the Bowden Penitentiary. The plaintiff Maria Klassen was very distraught that day and she refused to watch her husband plead guilty.
Her children wheeled her into court a week later and she sat in her wheelchair in that courtroom and watched as her husband was sentenced to four years in prison and she listened as Defendant Matthew Miazga told the court in great detail that Peter Klassen had allegedly sexually molested the children. Her understanding was that her husband would receive no more than two years less one-day so that he could remain in the Saskatoon Correctional Center where he would be close to her. She was shocked to hear that he would now be serving a penitentiary term.
It is difficult to describe the depression and pain that the plaintiff Marie experienced over the next two years prior to her death. The label that had been placed upon her family would remain forever and affected every aspect of her remaining life. A stayed charge does not leave you innocent in the eyes of the public, and this was a fact that the plaintiff Marie was left to live with.
The Defendant Brian Dueck told the Defendant Matthew Miazga in an occurrence report that he had visited the home of Marie Klassen and that "she was up and walking in the living room area".
Dueck failed to mention to the Defendant Matthew Miazga that Marie Klassen only moved about her house with the help of a walker. The Defendant Dueck wanted Matthew Miazga to believe that he had a real case of child abuse here, but he failed to mention how this accused was incapable of committing the acts the children described her as doing.
The other fact is that the Defendants used the wrong name in running a CPIC on Marie Klassen. It is maintained that the Defendants knew she had no criminal record and left the wrong CPIC in the file as would lead others to believe that Marie had a criminal record.
Marie Klassen first noticed a lump on her breast in the middle of 1994. She decided not to tell her family of her concern. Her husband Peter Klassen was still in prison and her children were having a hard time trying to get their lives back from the ordeal of being charged. Marie Klassen was diagnosed with having breast cancer in the latter part of 1994, and was told that it was inoperable. She then decided that it was time to get the family together to tell them that she was dying of cancer and there was nothing that anyone could do to help.
At this point in time the Plaintiff Marie Klassen was no longer able to go to Bowden Penitentiary to see her husband. It was decided that her children, would try and get him transferred to Saskatoon to be closer to Marie.
This was not as easy as one would think. The Plaintiffs would take the next two months to get the request granted. In January 1995 Peter Klassen was temporally transferred to Saskatoon to await the death of his wife Marie Klassen. The Plaintiff Marie Klassen died on February 6th, 1995 at her home in Saskatoon. Before she slipped into a coma and passed away she whispered "Don't give up". This is not melodramatic; those were her last words.
Marie supported her son Richard in his fight to clear their names, and to bring the Ross girls to safety. She was a strong and dedicated woman who would have given her own life to spare her children from having to go through this ordeal. She passed away without ever having her name cleared and will forever be thought of as being one of the sixteen individuals charged in the case labeled "The Scandal of the Century".
To sum it up, the evidence on Marie Klassen was similar to the evidence on the rest of the Plaintiffs, except for one fact. If the Defendant Brian Dueck had done a proper investigation in the first place the Plaintiff Marie Klassen would not have been charged. Once Defendant Matthew Miazga received the information that Plaintiff Marie Klassen was in a wheelchair, he could have withdrawn the charges against her right away, but instead he chose to continue to the end.
This evidence demonstrates that there were no reasonable and probable grounds for the laying of charges against Marie Klassen, nor any likelihood that a conviction could be obtained. Marie Klassen was physically unable to have committed any of the offenses alleged by the three Ross children. No reasonable thinking person could have thought Marie was capable or guilty of these charges.
John Klassen
January 17th, 1960, (the husband of the Plaintiff Myrna Klassen) Charged on July 10th with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross, one count of sexual assault on Kathleen Jessica Ross, one count of sexual assault on Sardy Hardy Mayes, one count of sexual assault on Shannavia Mayes and one count of sexual assault on Stephan Mayes. See Information signed July 6th, 1991.Book 1, Tab 8.
Myrna Klassen
Born November 17th, 1959 (wife of John Klassen) Myrna Klassen was charged on July 10th with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross, one count of sexual assault on Kathleen Jessica Ross, one count of sexual assault on Sardy Hardy Mayes, one count of sexual assault on Shannavia Mayes and one count of sexual assault on Stephan Mayes. See Information signed July 6th, 1991. Book 1, Tab 8.
Peter Dale Klassen (Dale)
Born July 31st, 1956, (husband of Anita Klassen) Charged on July 10th with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross, one count of sexual assault on Kathleen Jessica Ross, one count of sexual assault on Sardy Hardy Mayes, one count of sexual assault on Shannavia Mayes and one count of sexual assault on Stephan Mayes. See Information signed July 6th, 1991. Book 1, Tab 8.
Anita Klassen
January 12th, 1960, (wife of Peter Dale Klassen) Charged on July 10th with one count of sexual assault on Michael London Ross, one count of sexual assault on Michelle Mimi Ross, one count of sexual assault on Kathleen Jessica Ross, one count of sexual assault on Sardy Hardy Mayes, one count of sexual assault on Shannavia Mayes and one count of sexual assault on Stephan Mayes. See Information's signed July 6th, 1991. Book 1, Tab 8.
THE DEFENDANTS
Matthew Miazga Lead Crown Prosecutor for Michael, Michelle and Kathleen Ross (child complainants of Dale and Anita Klassen foster home.)
Sonja Hansen Lead Crown Prosecutor for Shannavia, Sardie and Stephen Mayes (child complainants Dennis and Diane Kvello foster home and Crystal and Trevor Heinrichs.
Carol Bunko-Ruys Child therapist and consultant for the three Ross children.
Richard Quinney Executive Director of Public Prosecutions, (Regina Office).
Brian Dueck Lead Investigating Police Officer.
THE CHILD COMPLAINANTS
Michael London Ross:
Born October 18th, 1979 to Donald and Helen Ross and brother of Michelle Ross and Kathleen Ross. In early 1987, Michael London Ross was removed from his parents care and placed in the home of the Plaintiffs, Dale and Anita Klassen. He was a disturbed eight year old child when the Plaintiffs, Dale and Anita, received him.
Michael was sexually active at an early age and at the time that the Plaintiffs Dale and Anita received him he had already been known to sexually act out with his two younger twin sisters, Michelle and Kathleen as well as other children in the community. Miazga, Hansen, Quinney documents # 356-3, 356-9, 356-15, 356-17. Book 2, Tab's 44, 45, 46, 47.. And Dueck document # 470-(page 3) Carol Middleton handwritten notes December, 1989. Book 1, Tab 2
Michelle Mimi Ross & Kathleen Jessica Ross:
70. Born March 4th, 1982. The twin sisters of Michael London Ross. Michelle Ross and Kathleen Ross were removed from their natural parents and were also placed in the care of the Plaintiffs Dale and Anita Klassen in early 1987.
Mikey Klassen
71. (Adopted son of the Plaintiff Pamela Klassen) Born August 31, 1985. 5 years of age at the time of the disclosures. The Plaintiff Pamela Klassen attained permanent custody in 1987. The plaintiff Pamela Klassen received Mikey Klassen into her care at the age two months old. Below is a picture of Mikey Klassen shortly after the Plaintiff Pamela received him. He was diagnosed with pre-cancerous melanoma on his right side of his forehead, and Pamela adopted him just before melanoma was removed.
Stephan Mayes/Hardy
72. Born on July 19th, 1982 he was the foster child of the Plaintiffs, Diane and Dennis Kvello. Stephan was 8 years old at the time of the disclosures.
Sardie Mayes/Hardy
73. Born on May 5th, 1986 she was the sister to Stephan Mayes/Hardy and the foster child of the Plaintiffs, Diane and Dennis Kvello. She was 4 years old at the time of the disclosures.
Shannavia Mayes/Hardy
74. Born on May 9th, 1985 she was the sister to Sardie Mayes/Hardy and the foster child of the Plaintiffs Diane and Dennis Kvello. She was 5 years old at the time of the disclosures.
Trevor Morin/Heinrichs
75. Born in July 1983, he was once the foster child of the Plaintiff, Pamela Klassen. Trevor was 7 years old at the time of the disclosures.
Crystal Morin Heinrichs
76. Born on December 12th, 1981 she was the foster child of the Plaintiff, Pamela Klassen. She is the older sister of Trevor Heinrichs. Crystal was 9 years old at the time of the disclosures.
THIRD PARTIE'S
The Department of Social Services:
77. The Department of Social Services was relied on heavily throughout the Klassen/Kvello case as sources of information for the Defendants. Most of their involvement was related in the examination for discovery of the Defendant Carol Bunko-Ruys where she names certain individuals who she relied on for information and who, in turn would rely on her for information regarding each child's status and needs.
78.The following are the names of the people from the Department of Social Services that the Defendant Carol Bunko-Ruys disclosed as being part of the team that she worked with in relation to this case (Taken from the examination for discovery of the defendant Carol Bunko-Ruys conducted by Richard Klassen on the 16th-19th of September 2002):
a) Nancy McGregor, Liz Newton, Anita Grosse, Norma Rivard. Page 15, line 12 and 19:
b) Sheila Gagne, Ron Puff. Page 15-16, line 8:
c) Janet Kormish, Carol Middleton, Geraldine Greyeyes /Arcand. Page 71-72, line 26, 4, 10.
d) Janet Matkowsi Now deceased. Dueck Documents # 475 Book 1, Tab 5.
Lyle and Marilyn Thompson:
79. Marilyn Thompson's foster home was opened as a "therapeutic", or a "special foster home" to initially receive Michael Ross on December 12th, 1989. Marilyn Thompson answered an ad in the Saskatoon Star Phoenix placed by the Department of Social services. The ad was advertised on Saturday November 18th, 1989 seeking persons interested in starting a new career. See Book 4, Tab 67, statement as to documents # 110 of the Plaintiff Richard Klassen.
80. Marilyn Thompson had been a foster mother in the 7O's but had no recent experience in foster care work. The Department of Social services trained Marilyn Thompson within three weeks of the ad being placed and began to call her home a "special care therapeutic foster home". See Book 4, Tab 67, statement as to documents # 110 of the Plaintiff Richard Klassen. Also see page 1554 of the testimony of Lyle Thompson in the Ross, Ross and White trial dated October 29th, 1992, Book 5, Tab 83, and page 2386 of the testimony of Marilyn Thompson at the trial of Ross, Ross and White dated October 29th, 1992). Book 5, Tab 82.
81. Lyle and Marilyn Thompson were not expecting a child like Michael, when they had originally answered the ad. Marilyn believed that she would be receiving a child that had been given up because the parents were physically unable to care for him. See also page 2386 of the testimony of Marilyn Thompson at the trial of Ross, Ross and White dated October 29th, 1992.
82. Almost immediately upon receiving the child Michael Marilyn began noticing unusual behavior, i.e. Michael would want to dress-up in women's clothing and would often ask if he could wear women's underclothing.
83. Marilyn Thompson was certainly aware shortly after Michael entered her home that there was a potential for danger in relation to her own children as well as any other children that Michael may have encountered.
84. The defendants Matthew Miazga, Sonja Hansen and Carol Bunko-Ruys have called Marilyn Thompson a special person for having taken care of the Ross children. Indeed, the plaintiffs are all in agreement that Marilyn Thompson was a courageous woman to have taken in and kept Michael Ross.
85.Marilyn Thompson kept Michael for a substantial amount of time which caused her a great deal of stress, aggravation and concern for the safety of her own children, and the constant fear that someone close to her could be hurt at any given time.
86. The plaintiffs believe that no reasonable person would believe it was in the best interest of Michael sisters to keep the siblings together knowing that they would regularly be assaulted and abused. No reasonable person could have believed that any child could be kept safe from Michael. The plaintiffs submit that all of the defendants knew that the proper environment for Michael would have been a secure therapeutic center where he could receive treatment for his sexually intrusive behavior.
87. The plaintiffs submit that Marilyn Thompson was a fortunate person in some ways not to have experienced the full wrath of destruction that Michael may have inflicted upon them; it is unfortunate that the same cannot be said for three-year-old Gus Pearman.
Terry Hinz:
88. Terrance Ronald Hinz was an acting prosecutor at the time the Klassen/Kvello investigation took place. Terrance Hinz was employed at the Saskatoon Prosecutors office in Saskatoon.
Terrance Hinz had been the previous prosecutor handling the case of sexual interference regarding Peter Klassen Sr. in 1989. Terrance Hinz accepted a guilty plea from Peter Klassen Sr. in 1989 regarding this charge and Peter was sentenced to 9 months in jail as a result.
Terrance Hinz was contacted by the Defendant Brian Dueck regarding his investigation of the Klassen/Kvello case sometime in early 1991. The Plaintiffs submit that the Defendant Dueck chose to take his file to Terrance Hinz as he believed that Terrance Hinz had already had some dealings with at least one member of the Klassen family with the hopes he would have a better chance in convincing him that charges should be filed as against the Plaintiffs.
Terrance Hinz reviewed the file over the weekend with his wife and returned back to work and contacted the Defendant Dueck and rendered his opinion regarding the file that he viewed. The Plaintiffs submit that the opinion given was that charges should not be laid against the Plaintiffs as Terrance Hinz did not believe there was reasonable and probable cause to prosecute the Plaintiffs based on the material he had viewed.
After the charges had been filed, Terrance Hinz again perused the file and concluded that nothing had been added to the file: his opinion on the file did not change.
Terrance Hinz started his employment with Department of Justice in 1979. Terrance Hinz did not look for advice from his superiors prior to rendering his opinion to the Defendant Dueck. The Plaintiffs submit that this was because any reasonable thinking person would have come to that same opinion, and that Terrance Hinz did not think that he needed advise regarding this matter. Terrance Hinz rendered his opinion based largely on what he had read in the file and common sense.
Sergeant Schindle:
94. The defendant Dueck states that he was assigned to this file, as there was an ongoing investigation. He further states that he was the lone investigator within this year and a half investigation of the accused. The defendant Dueck conducted interviews of the three Ross children in September of 1989 but obtained no disclosures from the children. Michael, after leaving the Klassen foster home and entering the Thompson foster home, began to disclose abuse by various people.
In May of 1990 the child Michael was taken to the department of Social Services to speak to a Social worker. Sergeant Schindle interviewed him. Sgt. Schindle's opinion was that Michael was too confused to be believed. He felt that the only possible allegation that should be investigated was that of Peter Klassen Sr. He further stated that his opinion was that Peter Klassen Sr. should be asked to submit to a lie detector test and if he passed the matter would be dropped. If he failed then possible charges could be laid.
96. This opinion was documented by the department of social services and can be seen in the Dueck documents # 478 Book 1, Tab 6. The Department of Social Services obviously did not agree with Sgt. Schindle's opinion and further arranged for an interview with Michael's child therapist, Carol Bunko-Ruys. He attended this interview with the Department of Social Services workers Nancy McGregor, Carol Middleton, and the foster mother Marilyn Thompson. Michael disclosed all sorts of apparent abuse at this interview and this was handed over to the investigating officer Brian Dueck.
97. The defendant Dueck ignored this report from Sgt. Schindle and proceeded ahead in his investigation of the accused.
98. One should note that the actual report from Sgt. Schindle was never provided to the prosecutors or even mentioned within the occurrence reports that the defendant Dueck submitted to the prosecutors. Had Sgt, Schindle been in charge of the file at this time, the charges against the accused would never have been laid. The Klassen's and Kvello's would never have been prosecuted. The defendant Dueck chose to ignore information which indicated that the accused were in fact innocent. The defendant Dueck only entered into the occurrence reports that which would make the accused appear guilty. The defendant Dueck refused to impart information that would have corroborated the fact that the accused were more than likely innocent of the crimes alleged.
Corporal Marv Hansen:
99. While in the foster home of Dale and Anita Klassen, there was an incident where Michael was reported to have inserted a butter knife and liquid soap into the vagina of his sister, Kathleen. Karen Clarke from the Sexual Assault Centre and Cpl. Marv Hansen were called. Michael told them that he had never been sexually abused himself, he did say that he had been "taught to do this" by an elderly friend of the Ross family. See document # 84a Book 4 Tabxxx of the Plaintiff Richard Klassen's statement as to documents. There is no indication anywhere within Dueck's notes that indicates that this elderly man was at the very least questioned as to his association with the Ross family.
The defendant Dueck states that he had access and read the records that were in the possession of the Department of Social Services. One should note that Dueck never mentioned the Social Services file as a reliable history of the abuse against the three Ross children.
101. The butter knife and liquid soap incident was reported and Dueck was aware of it. Nevertheless, he refused to acknowledge the fact that all along the perpetrator was in fact Michael London Ross and not the Klassen and Kvello accused.
102. The Plaintiffs in this action do not dispute the fact that at a time in Michael's life he would have had to learn certain sexual behaviour. They contend that the defendants had known that Michael's sexual behavior began long before he entered the Klassen foster home.
Chain of events:
The investigation of the Plaintiffs was commenced in the fall
of 1989 by Corporal Brian Dueck #144. At the time the investigation
began there were no allegations against any of the Plaintiffs.
No child had complained, and no other person had produced any
evidence of abuse at the hands of the Plaintiffs.
Peter Klassen, the father of the Plaintiffs, Dale, Pam, John, and Richard had entered a plea to one count of sexual interference with a child. That in itself could not justify the elaborate and expensive inquiry and exploration of all of Peter's children, their spouses, and relatives. There was after all no disclosure of a child, no victim, and no allegation
105 On December 12th, 1989, Michael was removed from the home of these Plaintiffs. There was absolutely no evidence that Michael had been abused in his foster home.
106. The next meeting that Dueck had with the Ross children was on June 14, 1990 at an arranged "chance" meeting at Taco Time, Saskatoon. Dueck's statement as to documents # 531. Book 1, Tab 10. Dueck hoped he could get the ball rolling regarding "further" disclosures by them. Nowhere had it been established that the children had disclosed previously. Again on that day, the children provided no statement to Dueck as would impute to any of the Plaintiffs criminal wrongdoing or sexual misconduct. As Dueck states: "The only thing that I spoke to them about was I was very glad they were safe and living in the Thompson home."
107. Later that evening Marilyn Thompson phoned Dueck and told him that the floodgates of information had opened. Kathleen was beginning to disclose sexual abuse by Anita Klassen. "At this time both of the other Ross children denied any type of abuse." (Page 5, paragraph 2) TAB "5"
108. It is surprising that no interviews were conducted by the defendant, Dueck until five months later. After the June meeting with the children all of them were turned over to Carol Bunko-Ruys for on-going treatment. Finally interviews of the children were arranged in October, 1990.
109. The Defendant Brian Dueck was essentially the lone police investigator handling an investigation against 16 individuals. At the conclusion of the investigation, a report was submitted to the prosecutions office located in Saskatoon, SK.
110. The Defendant Brian Dueck requested
an opinion about the laying of charges, and a file was dropped
off at the Saskatoon office for prosecutor Terrance Hinz to view.
The file was viewed and Terrance Hinz rendered an opinion.
111. Ostensibly, the investigating Police Officer Brian Dueck
did not agree with the opinion given and sought to obtain another
prosecutor in the Saskatoon office who would prosecute the case.
112. Prior to charges being laid, the Defendant Matthew Miazga took over the file and began to work closely with the Defendant, Brian Dueck.
May 11, 2005