SASKATOON - A multi-million dollar lawsuit filed against prosecutors, therapists, and police by several people wrongly accused of ritual child abuse will go to trial Sept. 8.
The parties completed a pretrial hearing this week, and have not reached a settlement.
The case, known in the early-1990s as the "Scandal of the Century", led to dozens of charges against Richard Klassen and several others.
Three children fabricated wild stories about Satanic rituals and sexual abuse they suffered at the hands of Klassen and others.
The children have since recanted, but the plaintiffs claim officials knew they were innocent from the early stages of the case.
A court ruling that extends the concept of solicitor-client privilege to communications between a Crown prosecutor and a Saskatoon police officer serves only to further public concerns about Saskatchewan's justice system.
Justice Mona Dovell of the Court of Queen's Bench said that her decision, which prevents plaintiffs in a $10-million civil suit for malicious prosecution from questioning prosecutor Terry Hinz about a meeting with former Saskatoon police sergeant Brian Dueck, applies only at the discovery stage of this litigation.
"It may very well be that during the trial, the trial judge, having heard all of the evidence, may determine that a solicitor-client privilege does not exist as between Dueck and Hinz in the spring of 1991 when the opinion was given."
For the sake of maintaining public confidence in the administration of justice it should be hoped that a trial judge will, indeed, take a wider view of the implications of allowing officials entrusted to act in society's interest to close ranks when their actions cause harm to persons they are supposed to protect.
At best, it's a long stretch to suggest that an investigating police officer who approaches a Crown prosecutor with charges he wants to lay against someone is retaining the prosecutor as his solicitor.
According to Saskatchewan Justice documents, "prosecutors are independent of both the police and the courts ... Once the police have laid a charge, the prosecutor is free to decide if he or she will prosecute it."
Even though Dovell found "absolutely no case law on point that being whether or not there is solicitor-client privilege as between a prosecutor and an investigating officer in the context of a malicious prosecution civil action," it would appear the Alberta Justice department's assessment of a prosecutor's role might prove a useful guideline for a future decision:
"The prosecutor is not the lawyer for the police or for the victims or complainants. The prosecutor is the representative of the 'state' -- an organization which includes the accused among its members."
Sources have told The SP that Hinz was the first prosecutor to be shown the case file containing incredible allegations against Richard and Kerrie Klassen and several others of sexual abuse and Satanic rituals involving children. Apparently, Dueck approached other prosecutors to take the case to trial after Hinz suggested there wasn't enough evidence to proceed.
Richard Klassen and 11 other persons are seeking damages after the three children who made the allegations admitted they concocted the bizarre stories. Subsequent comments from the children and others suggest that officials should have known that this was an implausible case that never should have gone to trial.
A frustrated Klassen, who sought to explore the communications between Hinz and Dueck to buttress the plaintiffs' case, rightly wonders how victims of malicious prosecutions could ever get pertinent evidence with cops and prosecutors granted such wide latitude on privilege.
By "shopping around" his case to other prosecutors after Hinz wouldn't proceed, it seems Dueck wasn't seeking an independent legal opinion as much as one that matched his own. At best, this qualifies as a police officer trying to do his job, not a "client" looking for a lawyer.
It's especially important to keep in mind that, according to Saskatchewan Justice's own guidelines, Hinz had a duty to "act in a way that strikes a fair balance between the competing interests of convicting the guilty, protecting the citizens' rights and freedoms and protecting the public from criminals."
So, if he advises a police officer that a case doesn't meet the standards required and the officer proceeds anyway on a course that ends up hurting 12 people, the injured persons should have the right to question Hinz about what he might have told Dueck.
Hinz wasn't acting as Dueck's lawyer. His duty was to represent the "state," which includes the persons Dueck wanted to charge with flimsy evidence. Not only will the legal manoeuvring at this stage over "privilege" hamstring Dueck's credibility at trial, the justice system itself is found wanting for condoning it.
A Saskatoon police officer is trying to block the release of his conversation with a Crown prosecutor about a Satanic abuse case in the early 1990s.
But if then-Cpl. Brian Dueck is successful, it will set a dangerous precedent, warned one of the 12 people suing him and others for malicious prosecution.
It would make it nearly impossible for the victims of malicious prosecutions to find out what went wrong in their cases, said Richard Klassen.
The matter will soon be decided by Queen's Bench Justice Mona Dovell, who is presiding over the preliminary stages of a $10-million lawsuit filed by a dozen people wrongly accused of the ritual and sexual abuse of three children.
Dueck's lawyer argued in court Wednesday that any conversation between Dueck and Crown prosecutor Terry Hinz is off-limits because of the lawyer-client confidentiality or "privilege" rule.
"Dueck, as the police officer, was clearly Hinz' client," David Gerrand said.
Both Dueck and Hinz have already been questioned under oath in the case, but a court order prohibits the publication of any details.
According to sources, after Dueck conducted his investigation he took the file to Hinz, who reviewed it and allegedly told Dueck there wasn't enough information to lay charges.
Sources say Dueck then took the file to other prosecutors and charges were laid.
Richard Klassen and the other 11 people suing would like Hinz to testify about his conversation with Dueck because the police officer was talking to the prosecutor as part of his job, Klassen argued.
"There is absolutely no privilege. It doesn't exist," Klassen argued. "Terry Hinz is a very important player. What Terry Hinz had to say is relevant."
Klassen said every police officer and prosecutor sued for malicious prosecution will try to use the confidentiality argument if it's allowed in this case.
That will make it nearly impossible for the wrongly accused to get information on their cases, he said.
Dueck and other officials are counter-suing Klassen and the others because of alleged defamation in the 1990s.