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I have linked the references to Judge Baynton's decision to the corresponding paragraphs. Just click the cited numbers and you will be taken to the section in context. Use your back button to return --Sheila Steele

Government stalls Klassen settlement

Appeal of Judge Baynton's findings of malice

In the Court of Appeal for Saskatchewan

Memorandum of proposed intervenor, Deputy Minister of Justice and Deputy A-G, submitted December 9, 2004

1. The proposed intervenor, the Attorney General of Saskatchewan seeks leave of the court to intervene in this appeal by way of a Factum and, subject to the approval of the court, at the hearing of the appeal oral argument, respecting the issues specifically identified below.

2. The Attorney General acknowledges that as intervenor, he is restricted to addressing issues whih the parties have put before the court.

3. The Attorney General also acknowledges that it is not an appropriate role for an intervenor to simply repeat submissions that havebeen made on behalf of the parties.

4. However the Attorney General submits that a reading of the judgment under appeal and the affidavits of Marilyn Hedlund and Donald Murray Brown filed in support of this application make clear that the appeal raises important issues of public interest with ramifications beyond the individual interests of the litigants.

5. The Attorney General therefore submits that this is an appropriate instance for the court to grant him intervenor status in order that he may, through counsel, by the filing of the Factum and on the hearing of this appeal to seek to ensure that those issues identified below are fully argued to the court.

6. With respect to the appeal on behald of Matthew Miazga, the Attorney General seeks leave to address the court on the following issues:

a) did the trial judge err in law in writing at paragraph 315?

"Proceeding without reasonable and probable cause is contrary to the law and demands a credible explanation, failing which the inferece of malice can be drawn"

b) did the trial judge err in law in writing at paragraph 381?

"that the high profile of the prosecution, the large number of accused, the potential for disastrous consequences on those charged if they were later found to be innocent and the "glaring absence of any reasonable and probable cause to lay and prosecute the charges" constituted extraordinary circumstances giving rise to a "strong presumption of malice"

c) did the trial judge err in law in concluding at paragraph 141?

"that the fact that the prosecutor did not view the available video tapes of the police interviews with the child complainants at the time of advising the investigating officer with respect to the laying of the charges constituted a strong indication of malice on the part of the prosecutor"

d) did the trial judge err in law in granting judgment against the prosecutor having written at paragraph 6

"It appears that during the investigation and prosecution of the case, the defendants focused on the minute detail and never stood back to view the case in full perspective. Had any of them done so, I would not be giving judgment in this case."

e) did the trial judge err in concluding at paragraph 272?

"that the prosecutors calling witnesses during the criminal proceedings to offer testimony about their opinion that the child complainant exhibited extreme dysfunction to be expected from children who had been sexually abused and that such children of the ages of the complainants should be expected to have inconsistencies in their perceptions and in their allegations and testimony constitutes an indication of prosecutorial malice"

f) did the trial judge err in concluding at paragraph 405?

"that the prosecutor's lack of any expression of regret or remorse for what was done to the Plaintiffs, in the circumstances described in the judgment, "is a strong indicator of malice"

g) did the trial judge err in law in concluding in paragraph 390?

"that the fact that the police decided not to lay charges against all of the persons identified by the child complainants as perpetrators of assaults constituted an indication of malice on the part of the prosecutor"

h) did the trial judge err in law at paragraphs 421-444?

"by disregarding the Defendants' evidence described there which was specifically offered by the Defendant prosecutor as a listing of events which transpired during his prosecution of the Plaintiffs, which were relevant to his issue of whether to continue that prosecution, and which on his testimony he saw as factors supporting the decision to which he was otherwise inclined to continue with that prosecution"

i) did the trial judge err in concluding at paragraph 176?

"in the absence of any evidence on the point that the Defendant prosecutor played some role in deciding how long and in which conditions the Plaintiffs would be held in remand custody"

j) did the trial judge err in law at paragraph 271?

"in concluding that the manner in which the Defendant prosecutor presented medical evidence to the court could constitute an indication of malice"

k) did the trial judge err in law at paragraph 414?

"in concluding that the Defendant Prosecutor's objections at the criminal trial of persons other than the Plaintiffs could constitute an indication of malice relevant to this action"

l) did the trial judge err in finding at paragraph 414?

"in the absence of any evidence to support the conclusion, that the Defendant Prosecutor objected during the Plaintiff's preliminary inquiry and during the criminal trial in Ross, Ross and White to counsel for the accused entering into evidence the videotapes of the police interviews of the child complainants"

m) did the trial judge err in concluding at paragraph 419?

"in the absence of any evidence to support the conclusion, that the prosecutor likely bowed to pressure from his superiors, Social Services personnel and workers, [Brian] Dueck, his child sexual council abuse peers, and the prevailing attitude of the day . . ."

7. With respect to the appeal of Carol Bunko-Ruys, the Attorney General seeks leave as intervenor to offer submissions respecting the following issues:


a) did the trial judge err in law in concluding beginning at paragraph 334?

that the Defendant therapist was instrumental in initiating the criminal proceedings against the Plaintiffs given the uncontradicted evidence before him that:


1) she did not swear any informations or conduct any prosecutions,


ii) she did not advise, recommend, or urge to anyone whether charges should be laid or prosecutions continued and if so against whom;


iii) she made clear throughout that while she believed the child complainants had been sexually abused, she could not determine who the perpetrator or perpetrators were;


iv) all of the disclosures of abuse that the Ross children made to the therapist, the police and eventually the criminal courts had first been made to the Thompson foster parents,


v) the therapist's participation in the police interviews of the child complainants were videotaped in their entirety and available throughout to the police and prosecutors as they made their decisions, and


vi) as they made their decisions respecting the charging and prosecuting of the Plaintiffs, the police and prosecutors knew that the Ross child complainants had sometimes lied.

8. The proposed intervenor has not yet prepared a Factum in this matter at this point because the Appeal Book is not yet available and the specific references to the trial evidence are therefore not yet available for the Fractum. If the Appeal Book becomes available before the hearing of this application, the proposed intervenor will seek leave of the court to file a draft Factum in support of this application.

Signed in Regina, December 9, 2004 by Don McKillop, solicitor for the Deputy Attorney General and Deputy Minister of Justice, Doug Moen.