REGINA (CP) - A family fighting for compensation after being wrongly accused and maliciously prosecuted as foster child sex abusers made progress on two fronts Thursday.
A judge ruled that any appeal of the malicious prosecution decision by investigators must wait until after the compensation issue is settled in court. At the same time, Saskatchewan Justice Minister Frank Quennell announced that officials from his department will meet with lawyers for the family to discuss how they can be assisted by the government while the case is still before the courts.
"I want to be open to any suggestions or proposals these families might have as to how they might be assisted that will not compromise the appeal," Quennell said shortly after the court ruling came down.
"I'm prepared to listen to anything they might suggest."
The developments were the latest chapter in a legal odyssey that spans more than 12 years.
Richard Klassen and 11 other members of his extended family were charged in 1991 with abusing the three foster children - a brother and his younger twin sisters - in bizarre and demonic ways.
The children said they were forced to eat eyeballs, drink blood, participate in orgies and watch newborn babies get skinned and buried.
Saskatoon police called it the "Scandal of the Century" at the time, but most of the cases never made it to trial.
By 1993 most of the charges were stayed to avoid further "trauma" to the children.
But, as the years passed, the children came forward publicly and recanted their accusations.
The boy, who had abused his sisters himself and was removed from the family's care, said he had made up the allegations because he was frustrated and wanted to be reunited with the girls. He said he coerced the sisters into backing up his fantastic tales of abuse.
The case prompted the Klassens to launch a lawsuit claiming police and prosecutors were malicious for believing the children's fantastic tales.
In a ruling last month, Justice George Baynton agreed, finding that three of the lead investigators in the case were liable: Saskatoon police Supt. Brian Dueck, who was a corporal when the case broke; therapist Carol Bunko-Ruys, and Crown Prosecutor Matt Miazga.
The case against a second Crown attorney, Sonja Hansen, was dismissed.
"In my view, proceeding with charges in such an extraordinary case in the absence of reasonable and probable cause constitutes a strong presumption of malice," Baynton wrote in his decision.
"It is almost beyond belief that none of those involved in the prosecution of the plaintiffs stood back, so to speak, and asked themselves if any of this made any sense and whether it could reasonably be true."
Baynton ruled on the facts of the case, but left the issues of compensation to be decided in another court hearing that is set for September.
Earlier this month, the government lawyer representing Miazga, Hansen, and Bunko-Ruys announced he will appeal the ruling.
Quenell has said despite what the Klassens went through, the case raises legal issues that must be resolved through an appeal.
The Klassens, however, have cited a pre-trial agreement among all parties that the issue of damages would be settled before any appeals were heard.
Dueck's lawyer has refrained from announcing his intention to appeal, in part, because of the pre-trial agreement.
The Saskatchewan government has been told its appeal of a malicious prosecution lawsuit must wait while the issue of compensation is settled.
The ruling from a judge with the Saskatchewan Court of Appeal affects 12 members of the Klassen family of Saskatoon who were falsely accused of child sexual abuse.
They were successful last month in their suit against a Crown prosecutor, a Saskatoon police officer and a child therapist.
The decision means damages must be settled before the province can appeal liability issues associated with the case.
Several weeks have already been set aside, beginning September 13, to hear compensation arguments.
Government lawyer Don McKillop argued Thursday that the appeal should be settled first because the lawsuit's outcome may affect how prosecutors deal with some cases.
The government of Saskatchewan is willing to discuss the possibility of interim payments for Richard Klassen, Diane Kvello and their family members who won a malicious prosecution lawsuit, Justice Minister Frank Quennell said Wednesday.
Responding to Klassen's declaration Tuesday that he will seek interim payments on damages in the civil suit decided in his favour in December, Quennell said, "the government is not interested in dragging out the suffering" of the Klassen and Kvello families.
"The government of Saskatchewan is willing to listen to proposals or suggestions from the plaintiffs to address fairness issues prior to the appeal being heard," Quennell said.
Earlier Wednesday, both sides met in court to set a date for a trial to determine how much money the plaintiffs should be awarded. Justice George Baynton scheduled the six-week trial to begin Sept. 13.
However Donald McKillop, lawyer for two of the defendants, said his appeal of the ruling should be heard before damages are determined.
The Court of Appeal will decide which procedure happens next, after it hears from the parties in Regina next Wednesday.
"Appreciating that the damages portion of the trial won't take place for a few months, the appeal won't be heard for a few months . . . these are the practicalities. In the interim we are certainly open to discussion," Quennell said.
But Quennell stopped short of saying the government will give the plaintiffs what they are asking for.
"I'm not suggesting that we'd be making an interim payment. I'm saying we're open to discussions. I don't want to say what the outcome of those discussions would be," Quennell said.
He said the government doesn't want to do anything that could jeopardize the appeal.
"Any concern I have about settlement discussions and any other matter is only about compromising the appeal.
Anything we can do that does not compromise the appeal, I'm open to talking about and the government of Saskatchewan is open to talking about.
"There may be things we can do," he said.
Robert Borden, who represents all of the plaintiffs except Richard Klassen, said Wednesday he will immediately begin preparing "an application to the court that an interim award be allowed at this time."
The 12 plaintiffs were charged in the early 1990s in an infamous ritual abuse case dubbed "the Scandal of the Century." A year and a half after they were charged on bizarre allegations of sexual and ritual abuse of foster children, charges against the 12 were stayed.
The children have since recanted, admitting the accusations were lies.
Justice George Baynton ruled Dec. 30 that Crown prosecutor Matthew Miazga, police officer Brian Dueck and child therapist Carol Bunko-Ruys were liable for malicious prosecution.
Quennell, who is also the attorney general for Saskatchewan, said he supports the appeal brought by the lawyer for Miazga and Bunko-Ruys because the ruling changes the test for malicious prosecution and could have a far-reaching effect on social workers, teachers and self-governing professions.
The plaintiffs understood that the trial to determine damages would happen before any appeals were launched. They want interim payments to see them through the time, probably several years, that appeals would wend through the courts.
Dueck's lawyer, David Gerrand, said during Wednesday's hearing he hopes the parties can reach a settlement on the amount of damages and avoid a trial on the matter.
Richard Klassen intends to apply for interim payments on an award for damages once the amount is set by the courts, he said Tuesday.
He hopes that today, a Queen's Bench judge will go ahead and set a date for a trial to determine the award in the malicious prosecution lawsuit he and 11 others won in December.
"We're asking for some time shortly after March 6 that our damages trial be set," Klassen said.
Klassen wants the court to determine the award before the matter goes to appeal, so plaintiffs can apply to have some of the money paid out while the lengthy appeal process is ongoing, he said in an interview.
The plaintiffs sought in excess of $10 million for being prosecuted on false accusations of sexual and ritual abuse and for having those accusations brand them for a year and a half.
"We will apply for interim payments once damages are (set). There is such a thing as interim payments to be paid out. We would be applying for that . . . so we could afford to continue to go on," Klassen said.
Klassen, Diane Kvello and 10 other members of their families, won the civil suit against Crown prosecutor Matthew Miazga, police Supt. Brian Dueck and child therapist Carol Bunko-Ruys on Dec. 30, when Justice George Baynton ruled the prosecution had been "a travesty of justice."
The provincial government announced Jan. 8 it will appeal the decision, a move that drew outrage from Klassen, who understood that an order by Justice Mona Dovell prohibited an appeal from beginning before damages were determined.
Donald McKillop, who represented Miazga and Bunko-Ruys, understood the order simply removed the usual 60-day deadline for filing appeals.
Klassen laid a complaint against McKillop with the Law Society of Saskatchewan, which regulates the legal profession.
Klassen alleged that McKillop made an agreement to not file an appeal until the damages were set and that Duvall's order was the response to a mutual request for such an order. Klassen alleges McKillop is now reneging on the deal.
"He's an officer of the court who entered into a deal and is now trying to sidestep that deal. . . . I think it's wrong and I think the Saskatchewan Court of Appeal should deal with it, as well as the Law Society," Klassen said.
On Tuesday, the Law Society of Saskatchewan informed Klassen he will get no help from them: they agree with McKillop's interpretation.
The law society will wait until the appeal process is complete before looking into Klassen's complaint, its general counsel, Allan Snell, wrote in a letter dated Jan. 16.
"It would appear to us that the Order of Madam Justice Dovell simply provides for a stay in the running of the time during which an appeal must be commenced, rather than prohibiting an appeal being taken prior to the agreement or adjudication on damages and costs.
"We may be wrong on this," Snell wrote.
"However, as the matter will be heard by the Court of Appeal, who will make the determination as to the interpretation of the order in question, it is appropriate that the law society defer to the court," Snell wrote.
Klassen's bid to set a trial date to determine the amount of his award will be the subject of a hearing today at Court of Queen's Bench.
The appeal court meets to address questions on the timing of the appeal Jan. 28 in Regina.
Klassen hopes the appeal court will send the matter back to Dovell for clarification. He believes that would result in the damages trial going ahead, before the appeal.
The Crown can appeal after the damages are set, he said.
The Saskatchewan justice system must give equal time to cases of injustice and crimes against marginalized citizens, said the sister of Neil Stonechild, who spoke at a demonstration outside Premier Lorne Calvert's Saskatoon constituency office Wednesday.
Later in the day, Saskatoon police Chief Russell Sabo did just that. He apologized in person to Richard Klassen, who, along with 11 others, last month won a malicious prosecution lawsuit against Saskatoon police Supt. Brian Dueck.
Erica Stonechild was among about 20 people who participated in the two-hour demonstration. She said it's too easy for authorities to dismiss the complaints of some people.
"It's not fair. . . . Undesirable people in this country are not being listened to," said Stonechild, whose brother Neil Stonechild died in 1990 under mysterious circumstances. A judicial inquiry is looking into his death and the subsequent police investigation to see if there's evidence to support allegations the police may have been involved in his death.
The inquiry is a "good start" in addressing an inadequate police investigation that was accepted by the police service for 10 years, she said.
At the demonstration, Klassen and co-plaintiff Diane Kvello called on the government to stop fighting them in court and pay damages for the suffering they endured after being falsely labelled as child sex offenders.
"My call is for Calvert to come out and talk about this like a man," said Klassen.
The demonstrators held placards in view of traffic and milled about in the waiting area of Calvert's 22nd Street office.
Calvert wasn't there. He is on a two-week holiday in British Columbia, a government spokesperson said.
Justice Minister Frank Quennell said Tuesday that he was sorry for what the Klassen family had gone through but the government cannot apologize for the nature of the prosecution while the appeal is before the courts.
Klassen, Kvello and members of their families won the judgment last month against Dueck, Crown prosecutor Matthew Miazga and therapist Carol Bunko-Ruys, who were involved in prosecuting them in the early 1990s on false accusations of sexually abusing foster children.
The province has begun the process to appeal the Dec. 30 verdict by Justice George Baynton, prompting protests from the plaintiffs, who believed a previous judge's order would forestall an appeal until after damages were determined.
Government lawyer Donald McKillop had a different interpretation of the agreement. The matter will be addressed in chambers at Court of Queen's Bench in Saskatoon on Jan. 21.
The demonstrators also included Quentin Ermine, who suspects that his father's 1987 murder was never solved because his father was a "street person."
Robin Ermine was found Aug. 14, 1987, in a west-side residence with three gunshot wounds to the head.
Sgt. Phil Farion of the cold case squad said the file has been reviewed several times in the past 16 years.
Farion said the previous cold case investigator, whom he replaced only recently, gathered the evidence from the case to see whether any of it could be tested using updated DNA techniques. Farion said he is still reviewing the cases to see what can be done next.
Another demonstrator was Sheila Okemaysin of Fort Qu'Appelle, whose husband, Gordon Severight, died in June 1997.
Okemaysim is not satisfied with the RCMP's finding of drowning as the cause of death. She suspects the RCMP may have been involved in his death.
She took her concerns to the Federation of Saskatchewan Indian Nations special investigations unit (SIU) in 2000.
RCMP spokesperson Brian Jones said the Mounties provided information to the SIU, which was subsequently satisfied with the RCMP findings.
"There was nothing to indicate any police involvement," Jones said.
Okemaysim still has the option of lodging a complaint with the RCMP public complaints commission, Jones said.
Sabo made a public apology last week but the two men were not able to have a face-to-face meeting until Wednesday, Klassen said.
"I accepted his apology and felt good about it," Klassen said later.
Klassen said he is satisfied with Sabo's assurance that a law firm will conduct an arm's-length investigation into the way Dueck handled the case. It will include complaints Klassen filed against Dueck with the police in 1993 and '94.
Klassen said he believes Sabo is working in good faith to renew the Saskatoon Police Service, which has been criticized for its handling of several highly publicized cases, including his own.
"I really do believe that this is a good chief and he wants to rebuild the morale and confidence in the (police among the) people."
A handful of "bad apples" in the police service have given the rest of the force a bad name, Klassen said.
As a citizen of Saskatoon and a follower of "the Scandal of the Century," I have watched with interest since CBC's Fifth Estate first aired the story.
The Klassen family has been devastated and all but decimated in their 13-year nightmare. Through no fault of their own, they have endured what would have destroyed most of us.
Still, after all this time and suffering and after all the evidence to their innocence, no individuals or office responsible for the process have come forward to acknowledge the damage done to this family.
In contrast, our government came out immediately after the devastating Moose Jaw fire and stated that it would most likely help with the rebuilding.
A coffee shop owner in Moose Jaw understandably felt that the destruction of her business was the worst day of her life. The fire chief stated it was "the worst I've ever seen, a catastrophe to the city." Another business owner felt sick to his stomach as his historic building went up in smoke.
But where is the outcry and concern for the devastation and horror that the unsuspecting, innocent Klassens endured for the past 13 hellish years? The prosecutorial process alone must have been a nightmare for these people. What is the value of a family in ashes in terms of rebuilding?
I was sick to my stomach when I read the government wouldn't apologize and what that means to compensation.
It's time for the government to acknowledge the devastation done to the family, bring out the heavy equipment, clean up the mess and find out what it would take to restore what it took a lifetime to build.
It's necessary for those in positions of power to ensure there isn't an overloaded circuit in the justice system that can short out and burn another one of our city's precious treasures.
While lawyers try to figure out what happens next in a malicious prosecution lawsuit, Richard Klassen is filing a complaint with the Law Society of Saskatchewan against provincial government lawyer Don McKillop.
"It's a straightforward complaint saying that I believe he was unethical and is actually somewhat in contempt of court . . . ," said Klassen in an interview Monday.
Last month, Justice George Baynton ruled in favour of Klassen and 11 extended family members who successfully sued Crown prosecutor Matt Miazga, therapist Carol Bunko-Ruys and Saskatoon police Supt. Brian Dueck for malicious prosecution, following false allegations of sexual abuse made by three children.
McKillop, who represents Miazga and Bunko-Ruys, said in a news conference last week that he would be asking for clarification on how to proceed with an appeal. A judge will hear that application on Jan. 28.
During a conference call on Monday, Justice George Baynton called a meeting in open court to decide the situation. Klassen, Borden, McKillop and Dueck's lawyer David Gerrand are to appear in Court of Queen's Bench on Jan. 21.
Klassen says McKillop is breaking a promise he made last March. In an order dated March 28, 2003, all the lawyers involved in the lawsuit agreed to split the proceedings up, with the damages portion of the trial following the main portion.
The order, made by Madam Justice Mona Dovell, states that if the defendants are found liable, the standard appeal period of 30 days will be disregarded, pending a decision on damages and costs.
Klassen says that means the damages have to be decided before McKillop or Gerrand can launch an appeal. Gerrand has not indicated any plans to appeal.
"I just think it's an unethical move for a lawyer, an officer of the court to make a promise to a Queen's Bench judge and then go behind her back outside of court and announce that they're not going to abide by that order," said Klassen.
"They're going to try to sidestep this, sidestep the order and go to a higher court. That's not ethical," he said.
Klassen said McKillop is simply trying to avoid further bad publicity.
"They're trying to stop the public from hearing the damages that were done to my family," said Klassen.
Klassen has represented himself over the years, despite having no legal training.
McKillop said on Thursday that the measure was simply one of procedure.
"That decision as to which order to take the remaining steps is a decision for the Court of Appeal," he told reporters.
"That's a large part of why we'll be putting that before a judge of that court on the 28th, is to get certainty on the timing of the next step."
Don Morgan, the Saskatchewan Party's justice critic, says the Klassen family has suffered enough, and should receive some sort of compensation from the province without delay.
"It's just going on and on," he said in an interview Monday.
"It just almost seems as though they are persecuting them."
On Thursday, McKillop said his clients were simply availing themselves of the option to appeal.
"It's not the wish or intention of my clients in taking the steps in bringing the appeal to cause further grief or trauma or stress to any of the plaintiffs," McKillop said.
McKillop has declined further media interviews on the Klassen case, saying he prefers not to try the matter in the media.
Klassen plans to file the complaint today.
A law professor at the University of Saskatchewan says there was no legal reason stopping the provincial government from apologizing to the wrongfully accused in the Klassen and Kvello lawsuit. Doug Schmeiser doesn't buy the government's argument that it's not appropriate to apologize to people who have had their cases stayed in the courts. He says the government should have apologized years ago, and could still apologize now without jeapordizing its appeal.
Doug Schmeiser/College of Law - U of S: "Instead the government now says it won't apologize and I don't know of any reason for that. It's almost tantamount to saying the government did nothing wrong and yet it's clear all the suffering was caused by agencies of government, public authority."
Jennifer Jellicoe/Reporter: "Could the government apologize and still appeal?"
Doug Schmeiser: "Of course it could apologize at any time. It could apologize now and still appeal, it could announce as I think they should they will pay compensation no matter what the effect of the appeal."
A caller to the Gormley show said he had phoned Lorne Calvert's Saskatoon office (651-1211) and left a message for a return call regarding Calvert's position. He urged others to do the same. By mid afternoon, a press conference had been called in Regina for Thursday at 2 p.m. where Justice Minister Frank Quennell is expected to address the judgment.
John Gormley noted the power of Talk Radio. We agree.
Jan 9, 2004: This morning Gormley did a "reality check" where he rapid-fired the question at as many listeners as he could accommodate: Should the Premier get involved in the Klassen/Kvello lawsuit settlement? 100% said YES.
CTV poll January 9: Do you agree or disagree with the Government's decision to appeal the judgement in the Klassen and Kvello lawsuit? Result: Disagree: 89% - Agree: 11%
It's not the usual place to find oneself struck by the idea for a column.
But I did find myself at one point this week, horizontal on a dentist's chair, chatting while we waited for the freezing to take effect.
My dentist remarked that there is real danger in society when we no longer have faith in our institutions.
We had been talking about the Klassen case in Saskatchewan, where Richard Klassen had fought for years to clear his name and that of his family and friends.
The nightmare for the Klassen family and friends began in 1987, when three pre-pubescent foster children accused them of various sexual assaults and other crimes.
The accusations began when the three children were split up, with the boy removed from the twin girls because he needed constant supervision to prevent him from sexually assaulting the twins. It was then he reported he had been sexually assaulted by his foster parents.
When a child therapist successfully argued the three children should be re-united, the twin girls began to agree with the boy's allegations, and even embellished them.
Saskatoon police called it the "Scandal of the Century." Sixteen people faced nearly 200 charges.
The cases against 12 of them were stayed in 1991. The convictions of three others was overturned on appeal. One person made a plea-bargained guilty plea on three charges.
But Richard Klassen and 11 others wanted an apology — they wanted to clear their names.
But no apology was forthcoming.
They decided to sue for malicious prosecution.
Klassen represented himself in court without a lawyer. He didn't make it public that, during the case, he was diagnosed with prostate cancer. He didn't take any time off for treatment because his absence might endanger his case in court.
Late last week, Justice George Baynton brought down his decision. He said the real Scandal of the Century was the "travesty of justice" carried out against the 12.
The malicious prosecution case showed that at no time were the children ever told to tell the truth. Instead, they were given treats when they disclosed further horrible stories and charges.
The three children eventually admitted to making up the stories —tales that they were victims of sexual assault and perversion, that they had been forced to eat eyeballs and drink blood, that they had been forced to watch neighbors skin and barbeque a baby.
Despite this, the Crown attorney's office in Saskatoon didn't back down, continuing to defend itself against the charge of malicious prosecution.
Richard Klassen still wanted his apology. He didn't get it.
Another of those originally accused died during the case. His wife said she promised him on his deathbed she would clear his name.
It was the British jurist, William Blackstone, who said "it is better that 10 guilty persons escape than one innocent suffer."
How about a dozen innocent people?
Justice Baynton, ruling last week in the malicious prosecution case, couldn't understand how the Crown had proceeded "in such an extraordinary case in the absence of reasonable and probable cause."
He said the real travesty was that the original prosecution branded the 12 family members and friends as pedophiles, even though each was innocent of the horrendous allegations brought against them.
Baynton ruled that the lead Crown prosecutor, the police officer who led the investigation, and a child therapist involved in the original investigation, were all guilty of malicious prosecution.
This week, the Saskatchewan government said it would appeal Baynton's ruling.
Following Baynton's judgment in their favour, Richard Klassen had said he was relieved, and had a whole new faith in Saskatchewan's criminal justice system. You're a better man than me, Richard.
I worry when I hear of cases such as yours, and wonder about those who weren't willing to carry on a legal fight for years to clear their names.
And I worry about my dentist's observation, that society is endangered when we lose faith in our institutions.