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Judge George Baynton's historic judgment, page 1

  • 2003 SKQB 559 Q.B.G. A.D. 1994 No. 271 J.C.S.
  • - and -
  • - and -
  • Robert L. Borden and Edward Holgate for all the plaintiffs except Richard Klassen Richard Klassen on his own behalf
  • Donald A. McKillop, Q.C. and Jerome A. Tholl for all the defendants except Brian Dueck
  • David A. Gerrand and Stephen D. McLellan for Brian Dueck
  • JUDGMENT BAYNTON J. December 30, 2003

Nature of the Case

[1] In July 1991, 16 individuals were arrested and charged with over 70 counts of sexual assault against eight foster children. Many of the children's allegations of sexual abuse were bizarre and revolting because they involved group and ritualistic sex with satanic overtones, the sexual abuse and killing of babies and animals, the ingestion of human flesh, feces, urine, blood and other horrible, perverted and incredible acts. The case was labeled by the media as the "Scandal of the Century".

[2] The real scandal, however, is the travesty of justice that was visited upon 12 of those individuals, the plaintiffs in this civil action, by branding them as pedophiles even though each of them was innocent of the horrendous allegations and criminal offences charged against them. For a year and a half, they lived under the cloud of the serious charges and, after being committed for trial at a lengthy preliminary inquiry, faced a criminal trial and the potential of lengthy jail terms. Eventually, all the charges against each of them were stayed by the Crown, but most of the charges were not stayed until just before their criminal trial was to begin, more than a year and a half after the charges were laid. The three children who made most of the allegations of sexual and physical abuse subsequently recanted their allegations and these recantations were made public through the news media.

[3] The plaintiffs subsequently commenced a civil malicious prosecution action against the two prosecutors involved, the investigating police officer and the therapist for the three dysfunctional children who made most of the false allegations. A counterclaim for defamation was brought by the prosecutors against one of the plaintiffs.

The lengthy civil trial that was conducted before me demonstrates how lying children wreaked such havoc, not only in the lives of the innocent people who were charged with numerous serious criminal offences founded on the children's false allegations, but also in the lives of the individuals who foolishly and maliciously acted together to charge and prosecute the plaintiffs for those criminal offences. As Mr. Justice Wimmer of this court so aptly observed in the Latimer case, "there is no joy in this for anyone". The same can be said about this case.

[4] In many respects, the judgment that follows is more like a public inquiry report than a civil judgment. The civil action required the court to review the roles played by the defendants in their dealings with the children and their response to the incredible allegations of abuse. The review encompassed not only the lengthy criminal proceedings involving the plaintiffs, but also the related criminal proceedings involving four other individuals. One of those individuals pled guilty to one offence against each of four of the children. The other three individuals were convicted of several offences but their convictions were overturned by the Supreme Court of Canada. The series of events that are relevant to the civil action span a period of time in excess of a decade. The evidence pertaining to those events is voluminous. The judgment outlines my determination of the facts from all this evidence and sets out in detail my reasons for concluding that the plaintiffs have a valid cause of action. I recognize that the length of the judgment is beyond the endurance of all but highly motivated readers.

[5] I begin by giving an overview of the case to put it in perspective. Next I outline the issues and set out some background information. Then I set out in chronological order, to the extent allowed by the issues, the salient facts and inferences of fact I have drawn from the evidence respecting the issues. Then I will outline the applicable law and apply it to the facts that I have determined. In doing so, I will comment on some specific events upon which the defendants rely. I will then move on to outline my reasons for allowing the plaintiffs to call rebuttal evidence. Finally, I will set out my disposition of the case and the counterclaim of the prosecutors against one of the plaintiffs for defamation.

An Overview of the Case and its Aftermath (back to Sask. A. G. Memo)

[6] In my view, the outcome of the bizarre and unique case before me is determined largely by the uncontroverted circumstances of the case itself. The primary difficulty I encountered during the trial and in coming to grips with the issues, was in keeping the case in proper perspective. An analogy can be made to the zoom lens of a camera that is trained on a flower. Although the lens can be zoomed in to reveal a minute detail of the flower, the image of the whole flower is temporarily lost until the lens is zoomed back out. Throughout the lengthy trial, the images I was given of the case before me were ones of minute detail. 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.

[7] In many respects, the continued focus on the minutiae of detail in this convoluted case during the trial has impaired the ability of the parties to see it in proper perspective. It has also impaired my ability to keep this judgment to a reasonable length. I would have preferred to have confined it solely to my determinations of facts from the evidence and to the inferences I have drawn from those facts. But in fairness to the parties involved in the lawsuit, and to provide an acceptable level of substantiation of my determinations for appeal purposes, I have no alternative but to relate many of the evidentiary details of the case. I have avoided cluttering up the judgment as much as possible, however, with references to court exhibits and transcript page numbers and with quotations from them or from the testimony of the witnesses. In many instances, reading the transcripts in context is required to enable the reader to assess the accuracy of the facts that I have found and the inferences I have drawn from those facts. To simplify the repeated naming of the parties and the witnesses, I have referred to them in the main by their surnames only. I intend no disrespect in doing so.

[8] It is important to observe that the plaintiffs, from the outset of this trial, have not relied on the recantations of the children as proof of the malicious prosecution action. With one exception, the recantations of the children were made long after the stays of the charges against the plaintiffs were entered by the Crown. Obviously the defendants did not have the benefit of these subsequent recantations at the time they made their decisions and assessments. It would be improper and grossly unfair to them to judge their actions on the basis of information gained through hindsight.

[9] Each of the [R.] children testified in the trial before me and each confirmed the recantations he or she made previously. Each of them testified that all the allegations made, including mutilating and killing babies and animals, eating excrement and drinking urine and blood, being forced to participate in group sex, and in a multitude of oral, vaginal and anal sexual acts with the Klassen and Kvello families and their children, were fabricated by [M.R. 1] and adopted by [M.R. 2] and [K.R.]. The motive for [M.R. 1]'s initial fabrications was to induce Social Services to remove his two sisters from their Klassen foster home and reunite them with him in the Thompson foster home. [M.R. 1] says that the only person who abused him was his natural father. It was obvious from his testimony that he still resents his father. [M.R. 2] and [K.R.] say that the only person who sexually or physically abused them was [M.R. 1], their brother. It was obvious from their testimony that they still resent their brother, not the Klassens or the Kvellos.

[10] In my view, the main significance of the recantations of the [R.] children and their testimony in the trial before me is to stifle any view that may still be held by the

defendants or by the public that the plaintiffs are guilty of the horrible offences that were charged against them. It is now known as a fact that despite the public statements made on behalf of the prosecutors to the effect that the stays were entered because the children were too traumatized to testify, the allegations on which the charges were based are false and the plaintiffs are innocent of them. The recantations also underline the reality that children do sometimes lie and that those lies can include false and fabricated sexual abuse allegations.

[11] The recantations and the recent testimony of the [R.] children also demonstrate to Social Services officials, workers and personnel, as well as to police officers and prosecutors, the real threat to society of overzealous child protection responses fueled by politically correct or trendy ideologies of the day that are relied upon as a justification to overrule objectivity, reason, common sense and tested and tried legal traditions. These kinds of responses not only jeopardize the freedom of innocent people, but they indirectly harm, and at times even jeopardize, the safety and welfare of the very children that are the subject of the protection efforts. This is what happened in this case. The [R.] children testified that they all felt betrayed, for one reason or another, by their Social Services workers and therapists. It is also evident that with the exception of C.H., the other child complainants as well as the six children of the plaintiffs, were significantly harmed by the overzealous response that was made in this case.

[12] The two [R.] girls said that they were regularly sexually abused by [M.R. 1] in their birth home, in the Klassen home and in the Thompson home. At first, the abuse consisted only of genital touching but it soon escalated into sexual intercourse at the Klassen and Thompson homes. [M.R. 1] would sneak into the girls' bedroom and have sexual intercourse with them. The only respite they had from his abuse was during the six-month interval that began in December 1989 when [M.R. 1] was removed from the Klassen home. The respite ended when they were reunited with him in the Thompson home. They say that the level of sexual abuse increased significantly after their move to the Thompson home despite verbal and written requests to Bunko-Ruys for help.

[13] As an undisputed example, [M.R. 1] had sexual intercourse with his sisters during a therapy session in Bunko-Ruys' office while Dueck and Bunko-Ruys left them alone in the office for a few minutes. When I related this incident as an evidentiary example in my non-suit judgment, I stated that Dueck and Bunko-Ruys were standing outside the office door when this incident occurred. This was the evidence before me at that time. The subsequent testimony of Dueck satisfies me that the incident likely occurred while Dueck and Bunko-Ruys were downstairs in the building. As another undisputed example, [M.R. 1] had sexual intercourse regularly with his sisters in the Thompson home and yard and on at least one occasion, considerable violence was used by him. [M.R. 2] and [K.R.] say that Bunko-Ruys, Dueck, Miazga and the Thompsons were aware of the ongoing sexual abuse but they did not seem to care. All they seemed to care about was getting more "disclosures" from them. Once the criminal proceedings were stayed, they lost interest in them.

[14] [M.R. 2] in particular still feels hurt and resents [M.R. 1] for what he did to her over a period of several years. Shortly after she publicly recanted the allegations that had been fabricated by [M.R. 1], [K.R.] and herself, she contacted [M.R. 1] at Egadz to seek an apology from him for what he had done to her over the years. She felt this would help her to forgive him. She was then 15 and had not been under [M.R. 1]'s domination for some time. But he was still intent on abusing her. He tried to fondle her under the table and when she resisted his advances, he got annoyed with her and choked her because she had publicly exposed his misconduct. Three days later he almost killed her for which he was charged, convicted and spent four months in jail. [M.R. 2] said that [M.R. 1] alternated between denying his abuse of her and then admitting it but not wanting to talk about it. She says that she recanted the allegations before having any contact with the Klassen or Kvello families. She says she did not do so earlier because she was scared, knowing that these people had been wrongfully charged. She was also afraid to come out and say she was raped by [M.R. 1] because she did not know how people would respond. She says that when her drinking and drug friends found out about it, they accused her of "doing incest" and enjoying it.

[15] The defendants knew at the time they were involved in the case about the sexual abuse by [M.R. 1] of his sisters. In their testimony, they tried to minimize the consequences that their knowledge of this ongoing abuse has on the outcome of this case. They take no responsibility for failing to prevent the abuse.

[16] In fairness to them, neither a child therapist, a police officer nor a prosecutor has the power to remove children from foster homes or to place them in other foster care homes. That power is held by Social Services personnel who have the legal power and responsibility for child protection issues. But it is reprehensible that they took no meaningful action to have [M.R. 1] and the girls placed in separate foster homes to prevent further incidents of sexual abuse. Instead they relied on ropes and buzzers placed on [M.R. 1]'s bedroom door in the Thompson home in an attempt to prevent him from getting into the girls' bedroom at night to sexually abuse them. The defendants and Social Services personnel were so caught up in their zeal to pursue the plaintiffs for the harm they suspected they had inflicted on [M.R. 2] and [K.R.], that they ignored the harm they knew was being inflicted on them by [M.R. 1]. What is even more indicative of their misguided zeal is that they took no reasonable or effective measures to protect [M.R. 2] and [K.R.] from further harm by [M.R. 1].

[17] It appears that Social Services was given bad advice by Bunko-Ruys to the effect that, for therapeutic reasons, the children needed to be kept together and that the safety of the girls could be protected by the installation of the devices I have mentioned.

But in view of the zealous responses that Social Services routinely makes to unsubstantiated sexual abuse allegations, their ineffective response to this substantiated and ongoing sexual abuse on the part of [M.R. 1] was irresponsible, hypocritical and inexcusable.

[18] [M.R. 2] and [K.R.] testified that they had looked up to their older brother [M.R. 1] for as long as they could remember, including some of the time they were with him in their birth parents' home. He looked after them and protected them and, in a sense, they saw him as a parental figure because they were neglected by their natural parents. Although they felt hurt and betrayed when he sexually abused them, they still had feelings for him. Although they knew that [M.R. 1]'s stories of abuse were untrue, they eventually came to believe them and adopted them as their own. They say that they would often sit in the kitchen at the Thompson residence until two or three o'clock in t he morning while Marilyn Thompson wrote down all the things they "disclosed" to her. Often she plied them with questions until they were exhausted. Marilyn Thompson regularly reported these "disclosures" to Social Services, Bunko-Ruys and Dueck.

[19] [M.R. 1] talked about his contempt for the lack of discipline he received for his sexual abuse of his sisters and said he preferred being made to stand in the corner than losing the sexual gratification his sisters provided to him. He admitted that he sodomized other boys and sexually assaulted other children. This was known to his care givers and the defendants and they relied on these events as evidence of his "sexualization".

[20] The children realize the enormity of the tragedy that has been suffered by the plaintiffs as a result of their false allegations. Although they are to be commended for their courage in admitting the wrongs that they committed, I am not convinced that they yet accept responsibility for them. Instead, they appear to blame their social workers and child therapist, Bunko-Ruys. My reading of the transcripts of the preliminary inquiries and of the trial, and my viewing of the comments made by Dueck and Bunko-Ruys during the videotaped interviews of the children, demonstrate that the children were led to believe that they were not responsible for their sexualization. They were repeatedly told that their inappropriate sexual activity was the responsibility of their alleged perpetrators.

[21] I mention this to illustrate that it is neither kind nor helpful to children to instill in them these kinds of questionable views. Until a person, even a child, begins to take responsibility for his or her actions, there is little likelihood that long-term therapy or counselling will be of much benefit. In my respectful view, this case demonstrates that the years of therapy the children received from Bunko-Ruys, provided them with few lasting benefits. Instead, it appears to have harmed them.

[22] The reader cannot be faulted for wondering how any reasonable person could have believed and acted upon the bizarre allegations I outlined previously. Not only was the nature of the allegations bizarre, but the fact that it implicated 16 individuals was of itself bizarre. These individuals had little in common other than the fact that some were related by blood or marriage and some were, or had been, foster parents. The individuals charged included several unrelated mothers who had their own children. Some of these mothers were pregnant during the time that some of the assaults charged against them were alleged to have taken place. None of these children had ever been abused. One of the plaintiffs was an aged grandmother who was practically blind and had limited mobility. Some of the plaintiffs had been approved as foster parents and had successfully parented many other foster children who made no allegations of abuse.

[23] The ritualistic and satanic aspect of the allegations was the only possible explanation of why so many apparently normal people would perpetrate such unspeakable acts on young children. But there was not a shred of evidence that the plaintiffs were members of a cult, that they practised witchcraft, or that they were involved in any other type of satanic or ritualistic practices. The defendants knew that the natural parents of the [R.] children were deaf and that Peter Klassen had fondled two neighbour girls. But the defendants never seriously paused to consider that it was highly unlikely that such a large number of apparently normal people would conduct themselves in the fashion alleged. Nor did the defendants ever seriously consider that such unlikely allegations were false, even though they knew that the children were extremely dysfunctional and often told lies.

[24] What makes the defendants' conduct toward the plaintiffs even more astounding, is that the horrific allegations of the [R.] children were not restricted to the 16 individuals charged. Numerous other identifiable individuals, who were never charged by the defendants, were named by the [R.] children as abusing them. In fact the [R.] children named just about every individual with whom they had ever had any significant contact, such as grandparents, aunts, neighbours and other children. None of these other individuals, although most were known to the defendants, was ever investigated or charged.

[25] I make these observations to show that this was not a case where the circumstances themselves called out for an explanation by the alleged perpetrators. The reverse was true. It was a case that called out for an explanation by the defendants as to how the allegations could possibly be true. Somewhat surprisingly, the defendants maintain that they either did not believe or did not place any significance on the ritualistic or satanic aspect of the allegations. But as I have outlined, this is the only possible explanation of why so many people would do such strange things in concert as alleged by the [R.] children. As well, if the defendants did not believe this material aspect of the allegations of the [R.] children, how could any reasonable belief be placed in the truth of what remained of their allegations?

[26] Although I have attempted to set out the salient events of the case in a chronological fashion, I have been required in many instances to interrupt the chronological sequence by jumping back or ahead in time to comment on incidents that pertain to a particular issue or to a particular defendant. Unfortunately this has required me at times to repeat segments of the evidence to give context to the issue or the particular defendant under consideration. I have also deemed it necessary, from time to time, to zoom back out, so to speak, to view the case in full and proper perspective in the quest to determine if any of the defendants maliciously prosecuted the plaintiffs within the parameters of this cause of action.

[27] Unfortunately, I have no other alternative but to make many critical and negative comments about each of the defendants named in this lawsuit. This does not imply that the defendants lack repute or are incompetent. Reputable and competent people at times make mistakes and do things that they should not have done. Although such people must be held accountable for their mistakes, they can learn from those mistakes and, in doing so will be better equipped to carry on their respective professional practices. Although I have considerable empathy for the negative impact this judgment will have on each of the defendants, I have even greater empathy for the negative impact the wrongful prosecution has had on the plaintiffs. The plaintiffs did nothing to deserve what the defendants wrongfully caused to be done to them. The defendants have no one to blame but themselves for being held accountable for their actions.


[28] There are two primary issues that remain to be determined by this final judgment:

1. Whether the defendants maliciously prosecuted the plaintiffs wi thin the meaning ascribed to this cause of action by the case law as claimed in the main action.

2. Whether the plaintiff (defendant by counterclaim) Richard Klassen, defamed the defendants (plaintiffs by counterclaim) Matthew Miazga and Sonja Hansen as claimed in the counterclaim to the main action. There is also a secondary issue that is dealt with in this judgment. During the trial, I permitted the plaintiffs to call a rebuttal witness after the close of the defendants' case and undertook to provide my reasons for doing so in this judgment.


The Civil Action

[29] The 12 plaintiffs in this action consist of a brother and sister who were charged as "young offenders", four pairs of spouses (one is deceased and two pairs were foster parents), a single woman who was a foster parent and a grandmother (now deceased) who was partially blind and physically disabled and who had been a foster parent at one time.

[30] The nub of the plaintiffs' action is a claim for damages for malicious prosecution against the four remaining defendants consisting of a child therapist, Carol Bunko-Ruys, a police officer, Brian Dueck and two prosecutors, Matthew Miazga and Sonja Hansen. The fifth defendant named in the style of cause is the estate of a former director of public prosecutions, Richard Quinney, now deceased, but the action against the estate was dismissed for the reasons set out in the non-suit judgment.

[31] The plaintiffs' action also includes other causes of action collateral to the malicious prosecution action including a negligence claim against the defendant child therapist, a negligent investigation claim against the defendant police officer and a claim that he breached the plaintiffs' s. 7 rights guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The action also alleges conspiracies on the part of the police officer and therapist to injure the plaintiffs. Although the plaintiffs have not formally abandoned their collateral causes of action, they presented their case as a malicious prosecution action and focussed their submissions on this cause of action.

The Prior Criminal Proceedings

[32] As I noted previously, the criminal proceedings involved four individuals who are not plaintiffs in this civil action. These four individuals were also charged in connection with alleged assaults on some of the same children who had made false allegations against the plaintiffs. Three of these individuals are the natural father and mother and a boyfriend of the mother of the [R.] c hildren (the three children who testified in the case before me). These three individuals were prosecuted by means of a separate preliminary inquiry and trial. They were convicted and sentenced at trial, their convictions were upheld by a majority decision of the Court of Appeal but those convictions were overturned by the Supreme Court of Canada. The boyfriend was acquitted and a new trial was directed respecting the father and mother. The Crown did not proceed with the new trial or take any further action against these three individuals. I will refer to the criminal proceedings involving them as the "[R.], [R.] and White" proceedings.

[33] The fourth individual charged who is not a plaintiff in the malicious prosecution case before me is Peter Klassen. He is the husband of the deceased grandmother, Marie Klassen, whose estate is a plaintiff in this action. He is the father of Dale Klassen, John Klassen, Richard Klassen and Pamela Sharpe, who are plaintiffs in this action. He had a criminal record as a consequence of his prior conviction and jail sentence in 1989 for sexually assaulting two neighbour children. Those sexual assaults consisted of the fondling of the neighbour children. He pled guilty to those offences. The two neighbour children were not implicated in any way in the subsequent sexual assault charges that were brought against him. None of the allegations against the plaintiffs were made until after Peter Klassen had been convicted for the sexual fondling of the neighbour children.

[34] Peter Klassen and 10 of the plaintiffs in the civil case before me, were prosecuted jointly by the Crown. [R.], [R.] and White, who are not plaintiffs, were prosecuted jointly as well. But the criminal proceedings involving them were prosecuted separately from the criminal proceedings involving the other eleven individuals. I will refer to the proceedings involving the 11 individuals as the "Klassen - Kvello" proceedings. Two of the individuals, who are the remaining plaintiffs in the civil action, were proceeded against as young offenders due to their ages at the time of their alleged sexual assaults against the child complainants. I will outline in more detail these three separate proceedings later.

[35] The 11 individuals prosecuted jointly in the Klassen - Kvello proceedings consisted of nine Klassen family members and two Kvello family members. The nine Klassens consisted of the two grandparents, Peter and Marie Klassen, one daughter, Pamela Sharpe, and the three sons and their three wives, Dale and Anita Klassen, Richard and Kari Klassen and John and Myrna Klassen. The Klassen family was initially represented by Daryl Labach. After the preliminary inquiry, for reasons I will outline later, the two grandparents retained their own counsel, Jay Watson. Daryl Labach continued to represent the remaining seven Klassen family members. The two Kvellos consisted of a husband and wife, Dennis and Diane Kvello and were represented throughout by Robert Borden. The only connection between the Klassen and Kvello families is that Diane Kvello (a Kvello by marriage) is a sister to Anita Klassen (a Klassen by marriage).

[36] The two individuals prosecuted as young offenders, were a son and daughter of the Kvellos, S.K. (male) and S.K. (female). They were also represented throughout by Robert Borden.

[37] Peter Klassen eventually pled guilty to one count of sexual assault against each of the three [R.] children and against C.H., a child not included as one of the eight foster children I referred to previously. The assaults alleged by C.H. were against Peter Klassen only and he was not charged respecting them until November 1991. The nature of the allegations consisted of sexual fondling, similar to the nature of the unrelated sexual assaults of the two neighbour girls for which he had previously pled guilty. The assaults alleged against him by the [R.] children were of a much more serious nature and included some of the bizarre things I related previously.

The Related Judgment Respecting Non-suit Motions

[38] A few weeks ago, in a lengthy judgment dated October 27, 2003, Kvello v. Miazga, 2003 SKQB 451, [2003] S.J. No. 650 (QL) (Q.B.), I reviewed the law pertaining to this case in the context of non-suit motions brought by the defendants. The detailed analysis of the law set out in that interim judgment is an integral part of my ultimate decision in this case. I will only repeat the portions of it which are required to give context to my conclusions in this final judgment. But I adopt, as if repeated in this final judgment, the observations I made and the conclusions I reached in the non-suit judgment about the law and the collateral causes of action. It should accordingly be read in conjunction with this judgment. [39] At the time I wrote the non-suit judgment, I was required to consider the evidence adduced in this case up to that point to determine, in effect, whether the plaintiffs had made out a prima facie case against each of the then five defendants. In other words, I had to determine if a reasonable trier of fact (a judge or a properly instructed jury) could find in the plaintiffs' favour on the basis of the uncontradicted evidence then before me. Because this case requires the drawing of inferences of fact from other facts established by direct evidence, I was required to determine whether the inferences of fact relied upon by the plaintiffs could reasonably be drawn by the trier of fact from the direct evidence. It would have been inappropriate for me at that stage to have made any actual findings of fact. In para. 47 of the non-suit judgment, I observed that I would confine my comments on the evidence to a few examples of the nature of the evidence I considered in concluding that the plaintiffs had made out a prima facie case. [40] I held that the plaintiffs had met the required evidentiary threshold respecting each of the defendants in the lawsuit except for the estate of Richard Quinney. The non-suit motion respecting his estate was allowed and the action against it was dismissed. The non-suit motion respecting the false imprisonment cause of action was allowed and that cause of action was dismissed. The trial then proceeded against the remaining four defendants on all the remaining causes of action. Each of them, with the exception of Carol Bunko-Ruys, testified at length. Further documents were adduced into evidence and the plaintiffs called a rebuttal witness.

[41] I am now required to consider afresh all the evidence adduced in this case using a different evidentiary standard than before. In describing this standard, I will use the malicious prosecution cause of action as an example. But my comments pertain as

well to all the other causes of action relied upon by the plaintiffs. In this final judgment, I now have the role of the notional trier of fact referred to in my non-suit judgment. I must determine the facts of this case, the inferences of fact to be drawn from those facts and then I must apply the applicable law to these facts.

[42] By way of general comment, other than for a couple of minor clarifications I will make later, I accept all the examples of the direct evidence I referred to in my nonsuit judgment as facts and I accept all the inferences I referred to in it as inferences of fact. There was nothing in the evidence subsequently adduced in this case which refuted or contradicted my description of the evidence.

[43] The onus of proof is on the plaintiffs to satisfy me that each element of the malicious prosecution cause of action has been proven against each defendant. If it is not proven against a particular defendant, then that defendant is not liable to the plaintiffs. The standard of proof is on a balance of probabilities. This simply means that unless it is more likely than not that the defendant in question did in fact maliciously prosecute the plaintiffs, that defendant is not liable to the plaintiffs.

The Facts and the Inferences to be Drawn from those Facts

Nature of the Evidence

[44] The evidence adduced through this trial was somewhat unique in that most of it consisted of thousands of pages of transcripts and documents. Many of these transcripts were of the lengthy criminal proceedings that I referred to previously including the [R.], [R.] and White preliminary inquiry, the Klassen - Kvello preliminary inquiry, the [R.], [R.] and White trial, the two appeals from it and Peter Klassen's application to the Court of Appeal respecting his guilty plea. The remaining transcripts were of the lengthy examinations for discovery of the five defendants which were tendered almost in their entirety by the plaintiffs by way of "read-in" evidence and of portions of the examinations for discovery of some of the plaintiffs.

[45] The numerous documents tendered into evidence include medical reports, police and prosecution records, memos of various Social Services personnel, sexual abuse of children protocols, police and prosecution notes, memos, correspondence and other like documents. The remaining evidence consists of the testimony at the civil trial of some 40 witnesses and of the numerous lengthy videotaped and audiotaped interviews of the plaintiffs and numerous children that were viewed in their entirety during the trial. Many of these videotaped interviews were of the child complainants who testified at the various criminal proceedings I have related.

[46] Unfortunately, the parties were not able to agree on the preparation of common document binders. Because of this, i ncomplete copies of some documents were tendered into evidence by one party despite the fact that a complete copy had been tendered into evidence by another. Common document numbers were not always utilized. The reference in the testimony of the witnesses to the documentary exhibits is accordingly confusing at times.

[47] My findings of fact are based on the evidence that I have just outlined. Much of that evidence is not in dispute. The primary dispute between the parties pertains to the inferences of fact that they ask the court to draw from all the bits and pieces that make up the totality of the evidence I have just described. There is no single piece of evidence from which such inferences can be drawn. The inferences can only be drawn from the cumulative effect of the evidence as a whole and from the nature and circumstances of the case itself.

[48] It is not practical nor necessary that I comment on all the testimony and documentary evidence adduced in this case. The transcripts and the documents that were admitted into evidence speak for themselves. Much of this evidence and the testimony I heard in court is duplicitous and has marginal relevance. My task is to determine from this evidence the facts which are relevant to the legal issues raised by the litigation. In addition to relating these facts from a chronological perspective, I will attempt to illustrate what each of the parties knew or should have known at various stages of the criminal investigation and the prosecution in which they were involved.

[49] Before beginning to relate the factual details of this case, I will outline some of the difficulties with the evidence.

Difficulties with the Evidence

[50] The facts that I relate in this judgment involve in part the actions of various Social Services workers, personnel and officials. None of them testified in the case before me. The testimony of even one of these individuals would have been helpful in clarifying many of the material issues in dispute. Section 73 of The Child and Family Services Act, S.S. 1989-90, c. C-7.2, provides these individuals with very broad protections from being compelled to appear and give evidence in a court of law. The benefit of those protections was relied upon by Social Services in applying to quash a subpoena issued at the request of the plaintiffs against one of the senior workers. An agreement was reached however respecting the application and a letter was provided by the worker that clarified the issue in question.

[51] As well, most of the parties and the witnesses who testified at the civil trial or who gave evidence at their respective examinations for discovery, understandably had considerable difficulty recalling specific details of dates, conversations, motives, thought processes and like matters that pertained to events that took place well o ver a decade ago. But I was not impressed by the inability of some of these individuals to recall even memorable and significant events. In many instances it was obvious that some of the witnesses, particularly Dueck and Miazga, were reluctant to testify about or acknowledge such events. I am not satisfied that the professed lack of recall was always genuine. In other instances, admissions against interest had to be laboriously extracted from the defendants and other witnesses through lengthy cross-examination and by reference to uncontroverted documentary evidence. This process considerably lengthened the trial.

[52] For the reasons I have outlined, some of the facts I relate often lack specific dates or other specific details because I was often not provided with reliable evidence of specific details. Although I take full responsibility for any errors of detail that I may make in relating the evidence, in some instances the details of the evidence itself may be in error.

The Manner in which the Criminal Charges Originated

[53] Some background information respecting the [R.] children is required to give the case some context. This background information was either known or was readily available to each of the defendants in this action. It explains in large part how the bizarre allegations of the [R.] children were given credence and how the travesty of justice occurred.

[54] [M.R. 1], [M.R. 2] and [K.R.] were born into a dysfunctional family. [M.R. 1], the oldest, was born on October 18, 1979. [M.R. 2] and [K.R.] were twins and were born on March 4, 1982. Their parents, [D.R.] and [H.R.] were deaf mutes, they were alcoholics, they did not get along well together and they neglected their three children. [H.R.] was a prostitute and regularly brought three or four male customers home with her at a time. She acquired a boyfriend, Donald White. The children, at an early age, were exposed to unhealthy sexual activity in their birth home. They realized that they did not have good parents and they had little use for their mother who seemed to have no time for them.

[55] Their father attempted to parent them but was incapable of doing so. They were left on their own to do whatever they wanted to do. [K.R.] relied on [M.R. 2] for support and [M.R. 2] in turn relied on [M.R. 1] for support. In many ways, [M.R. 1] was the parent figure for them and he exercised a high degree of control over them. Social Services intervened and provided a degree of supervision of the children in the birth home to compensate for the neglect they suffered at the hands of their parents.

[56] [M.R. 1] says that he was sexually assaulted on several occasions by his natural father. He in turn sexually assaulted his sisters and his sisters in turn acted out sexually with one another. It appears that the whole [R.] family was dysfunctional and likely sexually perverted. The [R.] children were apprehended by Social Services in February 1987 and placed in foster care. At that time [M.R. 1] was seven and his sisters were almost five. Social Services chose the Dale and Anita Klassen foster home as the home in which to place the [R.] children. Dale and Anita Klassen had previously been assessed and approved as foster parents by Social Services. They had taken in foster children for some time without incident before the [R.] children were placed with them. Anita Klassen had been sexually assaulted as a child and, because of this, she advised Social Services that she did not want any children who had been sexually assaulted to be placed with her. She was concerned that her own experience would make it difficult for her to deal with an abused child.

[57] For some unexplained reason, Social Services ignored this request and, without disclosing to Dale and Anita Klassen that the [R.] children had been sexually abused and were sexually dysfunctional, placed them in the Klassen home. It soon became evident to the Klassens that the children were abnormal and constituted a real parenting challenge. They required constant supervision to keep them from inappropriately touching one another and others. They created problems at school that were so outrageous that [M.R. 1] and [M.R. 2] were eventually assigned special supervisors to monitor their "touching problem" as it was termed by their therapist, Bunko-Ruys, when she became involved later on. In [M.R. 1]'s case, the supervisors even had to be with him in the washroom to prevent him from sexually abusing other children.

[58] Dale and Anita Klassen did what they could, within the limited resources available to them, to parent the [R.] children. At the time the [R.] children were placed with them, they had two of their own children, T.K., 8, born July 31, 1978, and J.K., almost 4, born March 17, 1983. The Klassen family treated the [R.] children as their own by involving them in all their family activities and outings. Their social contacts with others, including their extended families, were limited by the extreme "off the wall" conduct of the [R.] children, particularly [M.R. 1]. When they did get together with other family members outside their home, the conduct of the [R.] children was such that they usually had to cut their visit short and get them back home before they were told to leave.

[59] Anita Klassen repeatedly requested assistance from Social Services but, in the main, her requests were ignored. She did get some relief by means of "respite" workers and school supervisors. But she nevertheless was called to the school regularly to deal with problems relating to [M.R. 1]. She had to deal with [M.R. 1] being kicked out of school and kicked off the bus. She had to arrange for taxi transportation for [M.R. 1] and then deal with the irate drivers. She had to deal with the police when [M.R. 1] set fires and assaulted other children. She had to take the [R.] children for medical examinations and psychological assessments.

[60] The Klassens had to try to keep [M.R. 1] under supervision at all times to try and keep him from touching his sisters. At night, they had to try to keep him from sneaking into his sisters' bedroom. On one occasion, [M.R. 1] put a butter knife in [K.R.]'s vagina. On another he sexually assaulted [K.R.] and other girls in the playground. On another, he pushed [K.R.] out in front of a moving vehicle causing her to suffer serious facial and limb injuries that required hospitalization. Finally, the Klassens could take no more of this and advised Social Services that they could no longer care for [M.R. 1]. They requested that [M.R. 1] be removed from their home, but were prepared to continue to parent his sisters. The Klassens frequent requests of Social Services were either ignored or deferred.

[61] Notwithstanding the stress they were experiencing, they continued to care for [M.R. 1] because they had no other option except to put him out in the street. Anita Klassen became pregnant with a third child and [M.R. 1] became jealous and threatened to kill the baby, T.K. once he was born on April 1, 1989. The Klassens took his threats seriously and finally prevailed on Social Services to place [M.R. 1] in another foster home. Social Services did so on December 12, 1989, over a year after the Klassens had been requesting that [M.R. 1] be removed. He was placed with Lyle and Marilyn Thompson, a "therapeutic" foster home. [M.R. 2] and [K.R.] were left in the Klassen home.

[62] I go back a couple of years in time to relate a significant event. The [R.] children had been much happier in the Klassen foster home than they had been in their birth home. They still had some affection for their natural parents and Social Services allowed them unsupervised visits with their parents in their birth home. The Klassens were required by Social Services to facilitate those visits. On one occasion on September 21, 1987, when the [R.] children were returned after a visit with their natural father, Anita Klassen noticed blood on [M.R. 2]'s panties as she was getting her ready for bed. When she asked [M.R. 2] about the blood, [M.R. 2] responded that her deaf daddy put his penis in her bum. Anita Klassen immediately contacted the Social Services mobile crisis unit and advised of her concern that [M.R. 2] may have been sexually assaulted. She took [M.R. 2] to the hospital as instructed and a report was provided by the examining doctor to Social Services. Two police officers attended the Klassen residence and interviewed the [R.] children. They were unable to obtain a reliable explanation for the incident. There was no suggestion from the children or from the circumstances of the incident, that the Klassens had in any way sexually assaulted or abused [M.R. 2]. On the further instructions of Social Servi ces, Anita Klassen subsequently took [M.R. 2] to Dr. Anne McKenna to be examined for potential sexual abuse.

[63] Just prior to [M.R. 1] being removed from the Klassen home on December 12, 1989, Social Services engaged a therapist, Bunko-Ruys, to provide therapy for [M.R. 1]. Anita Klassen took [M.R. 1] to scheduled therapy appointments commencing in October 1989. This was the first involvement of Bunko-Ruys in the case. At about the same time, Dueck also became involved in the case. At the request of Social Services he interviewed the three [R.] children, likely in December 1989, about potential sexual abuse. He was unsuccessful in obtaining any "disclosures" to this effect. He made no notes or any report of this interview. It appears that Social Services had initiated an investigation of the Dale and Anita Klassen foster home and as well the Pamela Sharpe foster home, because Peter Klassen had pled guilty to the fondling of the two neighbour girls I referred to previously. All the foster children in these two homes were interviewed for "disclosures" of abuse with negative results.

[64] In order to provide some background information on what is to follow, it is necessary to relate that Pamela Sharpe had also been approved by Social Services as a foster parent several years before. One of the children placed in her home by Social Services was a small boy (who I will refer to as "M.K."). M.K.'s mother had apparently abandoned him at birth because he had a disfiguring birth defect on his face. Pamela Sharpe accepted M.K. as if he had been her own child. She supported him throughout all the surgeries required to partially correct his birth defect. M.K. is one of the children who was pressured into making allegations of abuse against her even though he continued to deny such abuse for almost two years after he was first interviewed.

Placement of the [R.] Girls in the Thompson Home with [M.R. 1]

[65] Shortly after [M.R. 1] was placed in the Thompson home in December 1989, [M.R. 1] made a "disclosure" that he was concerned for the "safety" of his sisters who remained in the Klassen foster home because of some sexual abuse he had suffered there. He was annoyed with Anita Klassen for instigating his removal from her home and his objective was to have his sisters removed from her home as well and be reunited with him in the Thompson home. He did not appreciate being separated from his sisters whose proximity had previously provided him with opportunities to obtain sexual gratification. This "disclosure" to Marilyn Thompson was enough to rouse Social Services into action and accomplish [M.R. 1]'s objective. What followed was a frenzy of leading and suggestive interviews of all the foster children and all the natural children who lived in the Dale Klassen and Pamela Sharpe foster homes.

[66] I jump ahead to relate that on May 29, 1990, [M.R. 2] and [K.R.] were summarily removed from the Klassen home and placed in the Thompson home. The "disclosure" by [M.R. 1] was duly reported to Dueck and Bunko-Ruys. The only individuals who can give direct evidence of this and subsequent "disclosures" made by [M.R. 1] and his sisters to the Thompsons, is of course Lyle and Marilyn Thompson and the three [R.] children. Dueck, Bunko-Ruys and numerous Social Services personnel and officials were made aware of the "disclosures" of the [R.] children by Marilyn

Thompson, the new foster mother of the [R.] children.

[67] The present whereabouts of the Thompsons is unknown to the parties. Dueck testified that he had police services attempt to locate them without success, but I have reservations about the legitimacy of those attempts. The nature of these initial "disclosures" of the [R.] children and the manner in which they were made or obtained is, especially in the unique circumstances of this case, of critical importance. It has a significant bearing on the legitimacy of the investigation, the charges and the prosecutions. It was also of critical importance to the defence of all 16 individuals charged with the criminal offences. It has a significant bearing as well on the determination of issues raised by this civil case. Accordingly, the evidence of the Thompsons, tested by cross-examination, would have been of considerable assistance to me. Later on, I will relate how the potential evidence of the Thompsons in this regard was in the main kept from the scrutiny of defence counsel and the court on the basis of Miazga's objections.

[68] I did hear the uncontradicted evidence of the three [R.] children in this regard but for obvious reasons, I do not have a lot of confidence in their unsubstantiated evidence, particularly that of [M.R. 1]. For the most part, however, their evidence given at the trial before me has not been contradicted. Also in evidence are the voluminous "Thompson notes" which contain graphic details of some of the "disclosures" the children made to Marilyn Thompson prior to their videotaped "disclosures" to Dueck and Bunko-Ruys during the police investigation.

[69] The videotaped interviews of the [R.] children at the police station demonstrate graphically what "disclosures" were made to Dueck and Bunko-Ruys over a period of several weeks in the late fall of 1990. They also demonstrate the leading and suggestive manner in which they were obtained and the demeanour and behaviour the children exhibited when making the "disclosures". Dueck's examinations for discovery read-ins and his testimony at trial illustrate that he is reluctant to admit what he had been previously told of the "disclosures" by the Thompsons. The same can be said about the examinations for discovery read-ins of Bunko-Ruys. She elected not to take the witness stand and testify at the trial. So it is not clear what was "disclosed" to her by the [R.] children, when those "disclosures" were made and under what circumstances they were made. Defence counsel for the 16 individuals charged, attempted at the two preliminary inquiries and at the trial, to obtain some of this information. But again Miazga, in the main, aggressively and successfully opposed those attempts.

[70] Nor is it clear how Social Services personnel learned of these "disclosures" or what other "disclosures" may have been made to them or passed on to them. Social Services officials and workers chose not to provide the information in their files respecting these issues to the plaintiffs. In fairness to them, however, it appears that at some point in the criminal proceedings that Miazga had made preliminary arrangements for defence counsel to view some materials at the offices of Social Services. In any event, it is known from the documents that the parties have been able to obtain, that [M.R. 1] disclosed to Nancy McGregor and Janet Kormish of Social Services that he had been sexually assaulted in two foster homes, the Dale and Anita Klassen home and the Pamela Sharpe home. Social Services personnel took [M.R. 1] to the police station to be interviewed about these "disclosures" on May 25, 1990. Dueck was apparently unavailable so [M.R. 1] was interviewed by Ronald Schindel who was then a Corporal in the Youth Division. Although Schindel testified at the trial, he had no recollection of the interview. He said he would have prepared a report of the interview. Although Dueck says he searched for the report at the police station, surprisingly he could not locate it. Fortunately, a memo dated June 4, 1990 authored by Carol Middleton, a Social Services worker, documents what transpired at that May 25 interview.

[71] The memo relates that Schindel chose not to interview [M.R. 1] on videotape. Nor would he interview [M.R. 1] in the presence of the social workers. Instead, he interviewed [M.R. 1] alone. He then called Middleton into the room to advise that [M.R. 1] was making disclosures against a large number of people who had supposedly abused him, including parents, uncles, aunts, etc. Schindel felt that [M.R. 1] was too confused to be believable and that he might be projecting a past abuse on the Klassen family. The only person Schindel was inclined to believe that might have sexually assaulted [M.R. 1], was Grandpa Peter Klassen who had previously pled guilty to fondling the neighbour children. Schindel's planned approach was to proceed with a charge against Peter Klassen if he refused to take a polygraph.

[72] The nature of the "disclosures" made by [M.R. 1] to Schindel are significant. [M.R. 1] alleged that Anita Klassen touched him on three occasions with her hand on his penis late at night when he pretended to be asleep. He alleged that J.K. (Anita's young daughter) also touched him in this manner on his penis. He said that on one occasion only, Dale Klassen had exposed his penis to him. He claimed that on two occasions, Grandpa Peter Klassen had put his penis in [M.R. 1]'s anus at Pamela Sharpe's home while several other adults were present. In response to further questions from Schindel, [M.R. 1] said that Anita Klassen often pulled the hair of the [R.] children when she was upset with them. Schindel suggested to [M.R. 1] that he was angry at Anita and it appeared that he would not mind seeing her in trouble. [M.R. 1] responded that he did not care what happened to Anita.

[73] I leave the Middleton memo for a moment to relate some other events that occurred on May 25, 1990 that are documented in a memo dated June 5, 1990, authored by Janet Matkowski, now deceased. Her memo indicates that the original complaint from [M.R. 1] included the allegation that Anita Klassen had fondled his sisters, [K.R.] and [M.R. 2], and that Dale Klassen had exposed himself to all the [R.] children. Matkowski had a consultation on May 25, 1990 with Middleton and four other Social Services personnel. The strategy that emerged was to pick up the [R.] girls from school and place them in an alternative foster home. Social workers were also to interview T.K. and J.K. (Dale and Anita's Klassen's natural children) at school and either apprehend them or return them to their parents.

[74] Matkowski interviewed J.K. J.K. did not disclose any abuse but in fact became quite adamant that no one was touching her sexually or physically. The memo states: "She did not volunteer any information" and "became tearful when discussing 'bad touching'." Matkowski also interviewed T.K. but she was not able to obtain any "disclosures" of physical or sexual abuse from him either. But she noted that shortly after the interview began, "the tips of T.K.'s ears became red" and that as the interview progressed, "so did the redness on his ears." When he was asked whether or not anyone was touching him, he answered 'no'." He began to cry and "sobbed throughout the interview." He was too upset to return to class. Matkowski also interviewed Anita Klassen at her home and noted that she "became immediately defensive when advised of the nature of the investigation." She stated there was no abuse in her home and that "they were free to investigate."

[75] On May 29, 1990, Matkowski contacted Dale and Anita Klassen and requested they take J.K. and T.K. to be examined by Dr. Joel Yelland. The memo indicates that, "After a long period of silence, Dale agreed to do so." The memo also indicates that Dr. Yelland called and stated there were no physical signs of sexual abuse on either child.

[76] I return to the Middleton memo. It goes on to note that [on May 25, 1990], Middleton and five other Social Services personnel then met to "discuss our action from this point." It was 5:00 p.m. when it "was decided that we would continue pursuing (sic) of this concern on Monday, May 28, 1990." On that date Middleton and two other Social Services personnel attended at Bunko-Ruys office to have [M.R. 1] "reinterviewed". The memo observes that: "The purpose of this interview was to allow me [Middleton] to hear [M.R. 1]'s disclosure and then to pursue the investigation and make a report for the Department of Social Services." [M.R. 1] enhanced some of his "disclosures" somewhat when Bunko-Ruys attempted to get further clarification from him but it appears that he forgot about other "disclosures" he had made and did not say anything to Bunko-Ruys about them. He stated that "he [was] not aware of any other sexual assaults which occurred". The memo notes however that on May 25 (presumably in his "disclosure" to Schindel) that [M.R. 1] said that C.M., a foster child living at Pamela Sharpe's home, had told him that Grandpa Peter Klassen has sex with his own daughter Pamela Sharpe.

[77] The following day, May 29, 1990, Dueck is back on the scene with five Social Services workers in a child apprehension operation to apprehend all the foster children from the two foster homes. M.K., then four years of age, was taken to the police station for an interview about potential sexual abuse at the hands of her foster mother Pamela Sharpe or her father Peter Klassen. He was presented with anatomical dolls to demonstrate what had supposedly happened to him. The videotape of the interview was viewed in the courtroom during the civil trial. Despite persistent, suggestive and leading questions, M.K. denied any abuse. The best "disclosure" that could be obtained from him was that he had a secret which he stated was that two older boys liked to hit him in his genital area.

[78] That did not satisfy Middleton so while she transported M.K. to his new foster home, she explained to him that the move was because "we were concerned about children at Pam's house and that the concern was that Grandpa touched children on their 'dinkies'." Not surprisingly, four-year-old M.K. became more compliant at this point and stated that Grandpa touches him on his dinky. Further questions elicited no more details other than that the touching was done with Grandpa's hands. No questions were asked to determine whether this occurred while Grandpa was bathing him, changing his clothes or in some other fashion.

[79] The memo indicates that later in the day, Kormish left a message stating that [K.R.] has "disclosed" to Lyle Thompson that Anita Klassen "has a touching problem", an odd term to be used by an eight-year-old child. The memo also indicates that Peter Klassen previously pled guilty to sexually assaulting two children in Pamela Sharpe's garage. It further indicates that in December 1989, a sexual abuse investigation was done on the Pamela Sharpe and Dale and Anita Klassen foster homes and that, "No disclosures were made at this point." Middleton concludes on the basis of what is in reality M.K.'s "non-disclosure", that M.K. was sexually assaulted and should not be returned to Pamela Sharpe.