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Judge George Baynton's historic judgment, page 2

Continued from Page 1

[80] It is obvious from the tone and content of the Middleton memo that Social Services personnel were dissatisfied with not only the manner in which Schindel had conducted the interview of [M.R. 1], but also with his decision not to press charges against everyone named by [M.R. 1] with the exception of Peter Klassen. It is also obvious that they were convinced that all the Klassens named by [M.R. 1] had abused him and they were not going to let any indications to the contrary shake them from that view. Their response to the Schindel set-back was to have [M.R. 1] re-interviewed by Bunko-Ruys, presumably to get more "disclosures" and to obtain an assessment that was more in line with their views. They also decided to interview all the children and the parents in the two foster homes that were implicated by [M.R. 1].

[81] Despite aggressive, suggestive and leading questions, they were not able to elicit any evidence of abuse that bolstered or supported [M.R. 1]'s allegations in any meaningful fashion. In fact the reverse occurred. Yet they chose to believe [M.R. 1] and to disbelieve all the other children. There are no transcripts or videotapes of these interviews, but the comments in the Matkowski memo indicate that the children were pushed beyond their comfort levels, one child to the point of sobbing uncontrollably. This of itself impugns the pious concerns voiced by all the child care workers and therapists who testified in the criminal proceedings against the plaintiffs to the effect that the child complainants would be extremely traumatized by having to answer questions in court.

[82] It is obvious from the Matkowski memo and the testimony at the civil trial of some of the children who had been interviewed, that the manner in which their interviews were conducted and the intense pressure that was brought to bear on them to make "disclosures" of abuse on the part of their natural or foster parents, were far more traumatic than any court proceedings could have been. The children were taken from their parents and subjected to questioning that suggested they were not being honest if they did not admit to abuse on the part of their parents. By contrast, the court proceedings took place in a non-confrontational setting with the public excluded, the accused individuals hidden behind a screen and sympathetic judges dressed without robes. Examples that support this assessment are the trial testimonies of J.K. and S.K. who were subjected to this kind of pressure.

[83] The inferences I have drawn about the aggressive and unobjective approach taken by Social Services personnel and workers to sexual abuse "disclosures" are supported by Dueck's evidence to the effect that he was upset with the manner in which Schindel treated Social Services personnel and the manner in which Schindel conducted and responded to his May 25, 1990 interview of [M.R. 1] Dueck subsequently demonstrated his own approach and interview techniques in the videotaped interviews he conducted with Bunko-Ruys and Judy Hjertaas, both of whom testified extensively about child-court trauma at the criminal proceedings.

[84] Dueck undoubtedly learned of the Schindel interview when he was assisting Social Services personnel in apprehending the foster children on May 29, 1990. He was of the view that Schindel should have permitted Social Services personnel to attend the interview and should have put more reliance on [M.R. 1]'s allegations. He was also of the view that Schindel should have done more in regard to them. He took Schindel to task for not doing so. Had Dueck paid more heed to Schindel's assessment and properly performed his job as the investigating officer, it is unlikely that the debacle that ensued would have occurred.

The Police Investigation

[85] On June 5, 1990, within a few days of the placement of [M.R. 2] and [K.R.] in the Thompson foster home with [M.R. 1], Social Services instructed Marilyn Thompson to take the three [R.] children to Dr. Yelland for physical examinations to detect any indications of sexual abuse. Dr. Yelland is a family practitioner who performed numerous such examinations for Social Services. His testimony in the court proceedings that followed, was that he and Dr. Anne McKenna were likely the only two doctors in Saskatoon to whom Social Services referred children for such examinations. He said he had done between 200 to 400 of such exams. He described his findings in his June 7, 1990 reports to Social Services. He got his information from Marilyn Thompson and from his interviews of the children.

[86] I will discuss these medical reports in more detail later. In general terms, neither [M.R. 2] nor [K.R.] made any "disclosures" to Dr. Yelland of sexual or physical abuse. [M.R. 1] and Marilyn Thompson "disclosed" to him that [M.R. 1] had been sodomized on numerous occasions in his birth home and apparently on the most recent occasion in 1988 by Peter Klassen. He is the individual who had previously pled guilty to the fondling type of sexual assault with a couple of neighbour girls and who is not involved in this civil action before me.

[87] Dr. Yelland's professional opinion of [M.R. 2] was that: . . . At the present time there is no evidence of penetration of the vagina itself and all I can say at the present time is that these findings would be consistent with sexual abuse in the form of fondling. . . . This is consistent with the findings set out in the November 10, 1987 report of Dr. Anne McKenna who is an Assistant Professor at the Department of Paediatrics, University of Saskatchewan, University Hospital. She examined [M.R. 2] for indications of sexual abuse. [M.R. 2] was five at the time. The report was sent to Social Services who had requested Anita Klassen to take [M.R. 2] to Dr. McKenna for the physical examination. As I related before, Anita had called Social Services mobile crises unit to report her concern that [M.R. 2] might have been sexually abused by her natural father while on a visit with him.

[88] Dr. McKenna observed in her report that the child was well known to the institution due to developmental problems encountered by a "hearing child" being raised by "hearing impaired parents". There had also been concerns previously about adequate nutrition. She states that the [R.] children "were lost to followup to this institution in 1983." She says:

I understand that the twins have been in care since February of this year [1987]. According to the foster mother, the natural mother was drinking and father could not cope with active children.

On the past weekend, the twins had a visit with their father. When [M.R. 2] returned home, the foster mother noted some bleeding and redness in the perineum. [M.R. 2] stated to me that "my deaf daddy spanked my bumb (sic). Then he put his fingers in my bumb. It hurt."

[89] The physical examination performed by Dr. McKenna indicated that: . . . The hymen was intact. There was slight posterior labial fusion. On the left, there was a 2 centimeter shallow linear laceration along the labia minora. Examination of the rectum was unremarkable....

There is no question in my mind, given the history and the physical findings, that this child has been subjected to nonaccidental trauma of the genital area.

[90] I move forward again to 1990 and the physical examinations of the [R.] children by Dr. Yelland. This time I refer to his examination of [K.R.]. His opinion of [K.R.] was that:

These findings are highly compatible with abuse having occurred in this child in the form of penetration of the vagina or rectum. The source of this abuse cannot be specified and may be from a penis, digital penetration, or penetration with a foreign body. . . .

His opinion of [M.R. 1] was that: "This child's rectal findings are compatible with a history of Sodomy."

[91] Dueck and Miazga relied on these medical reports as providing support or corroboration of the credibility of the [R.] children's allegations of sexual abuse that t hey made against the various persons charged, including the plaintiffs. I will have more to say about this later.

[92] Dueck in the meantime had made arrangements with the Thompsons for a "chance" meeting at Taco Time so that he could reacquaint himself with the [R.] children. This meeting took place in early June 1990. [M.R. 1] recognized Dueck and came over to talk to him. Dueck told [M.R. 1] that he was glad the kids were now "safe" in the Thompson home. [M.R. 1] rose to the occasion and responded, "I only told enough to get my sisters safe. I have got a lot more to tell you about sexual abuse." Marilyn Thompson called Dueck the very next day to report that the "floodgates of information" had opened and that the [R.] children were making all kinds of "disclosures".

[93] According to Dueck's own evidence, he did absolutely nothing to try to determine how these "disclosures" were being obtained nor did he alert the Thompsons of the risk that if the "disclosures" were obtained through inappropriate or improper interview techniques, the successful prosecution of the case could be seriously jeopardized. Almost 100 pages of handwritten notes, drawings and comments came to the attention of the plaintiffs during the criminal proceedings a year and a half later. Most of the notes were made in Marilyn Thompson's handwriting and represented her representation of the bizarre and unbelievable "disclosures" of abuse made to her by the [R.] children in the mid 1990s.

[94] According to the [R.] children, Marilyn Thompson routinely sat up with them until the early hours of the morning asking them questions about what happened in their previous homes and pestering them for particulars of abuse. It is obvious that they obliged her. It is also obvious from Marilyn Thompson's notes that by obtaining these "disclosures" she was assisting Bunko-Ruys and Dueck in the police investigation of the Klassens and Kvellos.

[95] Although Dueck and Bunko-Ruys in their evidence (including the read-ins from their examinations for discovery), try to distance themselves from the Thompson notes, I am satisfied that they not only knew that these notes existed but that they knew in graphic detail what the notes contained. Lyle and Marilyn Thompson regularly took the [R.] children to Bunko-Ruys for therapy sessions with a frequency on average of once or twice a week. Dueck met with the children and Bunko-Ruys in her office on at least three occasions and likely many more. Marilyn Thompson appeared to be motivated by the fact that she was providing valuable assistance to the investigation by passing on information of the children's "disclosures" to Bunko-Ruys and to Dueck. She met with Dueck and Bunko-Ruys on several occasions and talked to them on the phone quite often as well. It is highly unlikely that she would have kept these astounding and ongoing revelations to herself. It is also highly unlikely that she would have expended such an effort in committing these revelations of the children to writing for her own use and no other purpose. The notes consist of almost 100 pages. It is evident from the evidence that Dueck and Bunko-Ruys were given copies of the notes.

[96] From the extensive read-ins of the examinations for discovery of Bunko- Ruys, it is obvious that she has a poor overall recollection of what "disclosures" were made to her by the children or of what she may have reported of them to Social Services or to Dueck. Nor does Dueck have as good a recollection of any matters pertaining to the Thompson notes or of his dealings with Bunko-Ruys or of what "disclosures" she may have passed on to him than he has of many other aspects of the case. My previous comments respecting contrived lack of recall apply to these matters. Bunko-Ruys maintains that her sole role was to "support the children in expressing their perceptions" and that she had no role, obligation or responsibility to assess the veracity of these expressions of perceptions. Nor did she have any responsibility to caution anyone to whom she might pass on such expressions of perceptions that they may not be true. She even went so far as saying that she had no obligation to the court, or to the 16 individuals charged, to give any such caution despite the fact that she was qualified as an expert witness and testified in court on matters that would lend credibility to the "expression of perceptions" of the [R.] children contained in their sworn testimony in court.

[97] Dueck says that he was aware of the Thompson notes and of the fact that the [R.] children were making "disclosures" to Bunko-Ruys. But he says that he did not want to know about them before interviewing the children so that he would get their "disclosures" from his videotaped interviews of them. I have serious reservations about this assertion. It was obvious from his conduct of the videotaped interviews of the [R.] children and by the nature of his questions of the children, that he had previously received specific information that he was attempting to elicit from them. He knew that information came from "disclosures" of the [R.] children made previously to Marilyn Thompson or Bunko-Ruys because they were the only ones who were interviewing the children at that time. He could not have obtained it from any source other than from the Thompsons or Bunko-Ruys. Even if his assertion is true, there would be no utility in his not informing himself of what the children previously said to the Thompsons or to Bunko-Ruys. In fact, as the investigating officer, he had an obligation to inform himself of the particulars of those "disclosures" to assess the consistency or lack of it in the allegations made by the children.

[98] Dueck held himself out as an experienced interviewer of child complainants, and said he had conducted approximately 100 interviews before this case. He either knew, or should have known, that if the children had made detailed allegations before the interviews, the circumstances under which those allegations were obtained may well have contaminated the information he was about to receive. Surely, as a competent and experienced police officer with a duty to investigate these bizarre allegations, he knew that one of his main functions was to try and determine if in fact these horrible events had taken place. Trying to determine the credibility of the allegations was the most critical aspect of the investigation. If they were true, his witnesses were credible. If they were untrue, his witnesses were not credible. Another essential aspect of his investigation was to determine how the children's allegations originated and how they were made or elicited. This in turn had a significant bearing on whether the events alleged truly occurred or were partly or completely comprised of fantasy or fabrications.

[99] The same can be said of Bunko-Ruys. She was an experienced therapist and held herself out as having expertise in dealing with sexually abused children. She testified in court as an expert in this area. She participated fully with Dueck in the child interviews, taking an active roll in asking specific questions of the children to elicit information that appeared to have been given to her previously, either by the children or by Marilyn Thompson. She also knew, or should have known, that the detailed "disclosures" of the children may have been obtained by Marilyn Thompson, who was not a professional, under circumstances which may have seriously prejudiced the credibility of "disclosures". She also knew, or should have known, that the extensive involvement of Lyle and Marilyn Thompson in this whole "disclosure" process over a period of several months before the police interviews, may have seriously contaminated the children and the truthfulness of any future allegations made by them.

[100] It must be kept in mind that this was not a case of a young child blurting out to her mother that her father had inappropriately touched her the week before. This was a case of repeated interrogations initiated by a foster parent in an attempt to obtain "disclosures" of abuse. The fact that the allegations were incredible, bizarre and named a host of adults with no common connection who acted in concert to do things that are inconsistent with human experience, would have alerted a lay person with any common sense to the necessity of proceeding with extreme caution. An experienced and competent therapist would also have been so alerted.

[101] It appears from their evidence and from the circumstances themselves however, that Dueck and Bunko-Ruys had little or no concern about these matters. Their

goal was to get as many of these "disclosures" as possible on videotape, not on investigating, exploring or even considering the veracity or reliability of them. The videotapes of the police interviews of the [R.] children formed the basis of the police investigation and the occurrence report which in turn was relied upon by Miazga. I will deal with this aspect of the case in due course.

Videotaped Interviews of the [R.] Children

[102] For over four months, Dueck sat in the wings, so to speak, waiting from a signal from Bunko-Ruys that the [R.] children were "ready to be interviewed". He knew that in the interim, they would be making "disclosures" to Marilyn Thompson. The videotaped interviews of each of the [R.] children were conducted in the "soft room" at the police station. Anatomical dolls and other props were utilized. The interviews were conducted jointly by Dueck and Bunko-Ruys, with Dueck taking the lead and Bunko- Ruys following up on his lead to elicit more "disclosures". Several lengthy interviews were conducted by Dueck and Bunko-Ruys in October and November of 1990. [M.R. 1] was interviewed three times — on October 20 and 28, and November 16, 1990. [M.R. 2] was interviewed three times — on October 21 and 28, and November 15, 1990. [K.R.] was interviewed four times — on October 21 and 28, and November 15 and 29, 1990. [103] Each one of these interviews was viewed in its entirety in the courtroom

during the trial. Although it was frustrating and exasperating to have to sit through each of them, they are likely one of the most convincing pieces of evidence in support of the plaintiffs' malicious prosecution cause of action. I made copious notes of what was said and what was left unsaid. I made detailed notes of the interview techniques that were utilized and of my perceptions of the conduct and demeanour of the children and of the interviewers themselves. It would serve no useful purpose to relate the details of these notes or to reproduce sections of the transcripts of the videotaped interviews of the [R.] children that were prepared months later for the plaintiffs. The general comments I make apply to all the interviews of each of the [R.] children even though they apply more to some interviews than to others.

[104] The interviews depict the [R.] children, particularly [M.R. 1], as thoroughly enjoying the process. The children had a captive audience comprised of two gullible adults who hung on every word they uttered, nodding in unison at each "disclosure". [M.R. 1] often insisted that he be allowed to demonstrate what he was saying. He drew diagrams and demonstrated with knives that he had brought with him. The only time the children's interest in performing for their gullible interviewers began to wane, was when they began to get tired. Their interest then turned to requesting treats or invitations to eat out at a restaurant. The children were repeatedly lead by their interviewers with questions that suggested the answers they sought of them. It was obvious, in many instances, that the responses of the children were "off the cuff" fabrications to provide details or explanations for their previous fabrications.

[105] None of the "disclosures" of the children were gently or even obliquely questioned or challenged but were accepted at face value. Nor were the children properly cautioned about the need to tell the truth. In fact, they were repeatedly told by Dueck that kids do not lie and that he believed everything they said. They were also told repeatedly by Dueck that, as a police officer, he would get the adults that did these things to them and put them in jail, a comment that was welcomed by the children. Both Dueck and Bunko-Ruys intervened to divert the children from talking about their own "touching problems" and encouraged them to talk about the adults who had abused them and who were responsible for their "touching problems". On at least one occasion, in an interview of some of the other children from whom Dueck had obtained "disclosures", he referred to himself, Bunko-Ruys and the child being interviewed as part of the "team" that was going to get these perpetrators of abuse.

[106] The conduct and demeanour of the children during the interviews were in stark contrast with the reserved conduct and demeanour that is exhibited by most children when they are being asked questions about potential sexual abuse. Although I did not observe the conduct or demeanour of the children when they testified at the preliminary inquiries or at the trial, I did read all the transcripts which included not only their testimony and comments, but everything that was said to them. I have a great deal of difficulty accepting that these particular children were as traumatized by the court proceedings as has been made out by the defendants. As I will relate in more detail later, every concession conceivable was made to accommodate the "needs" of the children for frequent breaks during the day and adjournments to another day when they became tired. The transcripts reveal that the children expressed little fear or reservation of being required to testify when asked specifically if they were afraid or uneasy.

[107] I strongly suspect that if the children involved in the case before me were in fact traumatized, it was because they were finally confronted by someone who did not accept their allegations at face value and who had the audacity to gently challenge these allegations. They had to admit to lying when confronted with the glaring inconsistencies in their evidence. They found it difficult and stressful to attempt to maintain their fabricated allegations. The fact that the testimony of the children degenerated into a jumble of inconsistencies, not only in the testimony of one to another, but within each child's own testimony, was a strong indication that their allegations were fabrications. As mentioned before, the children were given numerous breaks, court was often adjourned to another day, and many other considerations were afforded to the children to minimize any discomfort, stress or trauma that might accrue to them by being required to testify. As one defence counsel observed in one of the proceedings, the length of time it took to complete the cross-examination was not because it was lengthy, but because of the numerous and lengthy breaks taken to accommodate the children.

[108] It must also be borne in mind that the Crown, over the objections of the plaintiffs, had convinced the courts to adopt special measures to minimize the potential trauma to the children. The public and the media was excluded from the proceedings when the children testified. The alleged perpetrators were hidden from the children by being huddled behind a screen. The judges doffed their gowns before conducting the proceedings. The children were given a special room in the judges' chambers and presumably entered and left the courtroom by the same doorway as was utilized by the judge. Their wishes for breaks were honoured and the court proceedings were adjusted to suit their convenience. One cannot fault the plaintiffs from perceiving that the deck was stacked against them.

[109] Like other judges of this court, I have conducted many sexual assault trials involving child complainants from age 4 to 17. My colleagues and I take time to develop a rapport with the child and take steps to ensure that child feels secure in the courtroom. This includes protecting them from contact with the persons accused by them and precluding aggressive, intimidating or unfair cross-examination. In most instances, as in the subject case, the prosecutor has previously familiarized the children with the courtroom and the court process and the children have the benefit of a support person and a "soft room".

[110] In only three cases has a child in my courtroom been "traumatized" on the witness stand. In one case it was because a high school class sat in during testimony given by a young teenager who had been sexually assaulted by her stepfather. Sending the class on to another courtroom where another trial was in progress solved the problem. In another case, it was because the child had fabricated a story that began to unravel when reliable independent evidence established that the story could not possibly be true. In the third case, it was because a parent was attempting to use the child as a sword in a matrimonial matter by counselling the child to give false evidence. Fortunately, the child had the courage to refuse to do so.

[111] I relate this information to illustrate that the prosecutors deliberately overplayed the "trauma" concern to focus the criminal court proceedings on the "needs" of the children rather than on the validity of the allegations and the guilt or innocence of the plaintiffs. In some of the proceedings there was likely more testimony adduced by the Crown about the children's needs than there was about what the children said was done to them. As well, the "trauma" concern was successfully relied upon to supposedly explain the wholesale inconsistencies in the evidence of the children.

[112] There are several reasons why the videotaped interviews of the [R.] children that I have described are so critical to the case before me. The first is that the interviews by and large constitute the entire police "investigation" conducted by Dueck. His detailed police report was based primarily on the information he obtained from these interviews. He carried out virtually no other investigation respecting the allegations of the children and relied almost exclusively upon these allegations to found the charges brought against the plaintiffs. He considered that these allegations were corroborated in a fashion by the Yelland medical reports and by the similarity between the allegations of abuse of one [R.] child to that of the other. It should have been evident to him, however, that by the time he interviewed the children, they had made many of their "disclosures" as a group to Marilyn Thompson and may well have done so in this fashion to Bunko- Ruys. They also played together every day and had ample opportunity to discuss their allegations among themselves, particularly over the extended time involving several weeks when they were being interviewed.

[113] Dueck and Bunko-Ruys spent weeks interviewing the children. Dueck spent more weeks reviewing the videotaped interviews to make notes of them. From these notes, he quite properly allocated the allegations into two categories. The first identified the allegations made by each individual [R.] child. The second identified the allegations made against each individual alleged perpetrator. This exercise lead to his detailed occurrence report. Although Dueck is to be commended for such attention to detail, he seems to be of the view that this exercise in itself constitutes an investigation. I am not convinced that this is so. The colloquial "garbage in, garbage out" principle of computer usage is instructive. If the allegations were fabrications, the categorization or segregation of those fabrications could not change the nature of them into credible complaints. They would still be fabrications, albeit categorized ones.

[114] If Dueck had utilized the process he adopted to critically assess the credibility or feasibility of the allegations, that process could truly constitute part of his investigation. Anyone sufficiently interested and willing to invest the time in such an exercise, would reject his contention that the similarity of the children's allegations corroborated their evidence. The inconsistencies that are readily discernable by means of such exercise, cannot stand together.

Medical Reports

[115] The medical reports of Dr. Yelland were relied upon by Dueck and Miazga as corroboration of the [R.] children's allegations of sexual abuse they made against the persons to be charged. The professional testimony of Dr. Yelland and his opinion evidence as an expert was adduced and relied upon by Miazga at each of the preliminary inquiries and at the trial. This reliance was, for the most part, unfounded for the reasons I will outline. It is first necessary however to review in detail the medical reports that Dr. Yelland gave to Social Services respecting each of the [R.] children which I previously referred to in general. These reports were available to and known by each of the defendants.

[116] Dr. Yelland had assessed the [R.] children in June 1990 within a few days of [M.R. 2] and [K.R.] being moved out of the Klassen home and into the Thompson home. He reassessed the children a year later on May 31, 1991, presumably at the request of Social Services on the suggestion of Miazga. By this time, Dueck had already made arrangements for the arrests of the plaintiffs, after being advised by Miazga to proceed with the charges. Dr. Yelland sets out his findings and opinions in his reports dated June 1, 1991 respecting [M.R. 2] and [K.R.] and in his report dated June 7, 1991 respecting [M.R. 1].

[117] In his court testimony, Dr. Yelland confirmed that complete physical examinations were done in each case on each of the children and that he was looking in particular for signs of sexual abuse which often involves physical abuse. I will refer to the marked difference between the 1990 report and the 1991 report respecting each child. [118] In his 1990 report respecting [K.R.], then eight, he states that she made no disclosures of sexual abuse to him but reported an itchy bum that she had had for three months. She had only a remnant of hymen present. He noted that:

These findings are highly compatible with abuse having occurred in this child in the form of penetration of the vagina or rectum. The source of this abuse cannot be specified and may be from a penis, digital penetration, or penetration with a foreign body.

There is no indication that [K.R.] disclosed any sexual abuse. [119] In his 1991 report respecting [K.R.], he states: . . . Vaginal exam in (sic) abnormal for a remnant of the hymen only being present. There is marked injection of the perivaginal area. The vaginal diameter is 1.2 cm. . . . The rectal tone is decreased with fecal staining being present. . . . and the diameter is over 1 cm on digital exam. There are no scars in the rectal area, but there are mild rogous changes present. . . .

[120] In his 1990 report respecting [M.R. 2], then eight, he states that: . . . There is marked redness and injection of the labial minora area. She has scarring of the introitus. The hymen itself is intact and the rectal tone is normal.

. . . This child has some minor redness of the labia minora area and scarring of the introitus. This may by (sic) suggestive of local irritation of the area secondary to infection or to manual manipulation. At the present time there is no evidence of penetration of the vagina itself and all I can say at the present time is that these findings would be consistent with sexual abuse in the form of fondling.

There is no indication that [M.R. 2] disclosed any abuse.

[121] In his 1991 report respecting [M.R. 2], he states that:

. . . The vaginal examination is abnormal for the hymen being torn in a cresentic (sic) fashion with a total diameter of 7 mm. At the edge of the right labia she has cleft-like 2 mm tear at the edge of the hymen and the labia minora. She has a 3 cm scar in the anterior aspect of the rectum. The rectal tone is decreased and it is over 1 cm in diameter. There are increased markings in the rectal margins. There is also marked redness and agglutination in the labia minor area. . . .

This child has both physical scars and vaginal and rectal findings that are compatible with her history of multiple sexual abuse.

[122] In his 1990 report respecting [M.R. 1], then 10, he states: . . . The rectal area showed soiling and excoriation present. There was decreased rectal tone. . . .

This child's rectal findings are compatible with a history of Sodomy. At the present time there are no scars or lacerations suggestion (sic) recent abuse. The decreased rectal tone could be secondary to this cause. . . .

[123] In his 1991 report respecting [M.R. 1], he states:

. . . The penis is noncircumcised (sic) and the scrotum is normal in appearance. There is marked decrease in rectal tone with soiling present. There is a .5 cm scar in the anterior edge of the rectum. . . .

. . . He also has decreased rectal tone and scarring in the rectal area that is compatible with the history of sexual abuse that he reveals.

[124] Dr. Yelland's practice as indicated in his reports and his subsequent testimony in the civil case, was to obtain a "history" of any sexual abuse from the child brought in for examination and from the care giver who brought the child in. The 1990 reports demonstrate that neither [K.R.] nor [M.R. 2] gave a history of sexual abuse. The 1990 report respecting [M.R. 1] demonstrates otherwise. He, or Marilyn Thompson, obviously told Dr. Yelland about [M.R. 1]'s sexual abuse allegations. Somewhat surprisingly, Dr. Yelland makes unequivocal statements of fact about this alleged abuse that is not demonstrated by his physical examination. He states:

. . . This child has been extensively sexually abused in the past. This includes Sodomy. The child states that his most recent episode occurred in 1988 when grandpa Klassen put his penis in [M.R. 1]'s bum. There is an extensive history of Sodomy of this child in the natural parents' home that involved the father, mother, and boyfriends. . . .

. . . This child does have a tendency to dress up in women's clothing.

These statements in the report were not qualified to simply represent what [M.R. 1] or Marilyn Thompson told him. There were stated as a matter of fact or opinion. The sole basis for them was [M.R. 1]'s unchallenged and unsubstantiated abuse allegations. These statements should not have been included in a supposedly professional report of a physical examination that is to be relied upon as independent evidence of the person alleging the abuse.

[125] The 1991 reports of the physical examinations by Dr. Yelland of the children, then 9 and 11, that I have outlined, demonstrate that there was more genital evidence of sexual abuse in 1991 than there was in 1990. This is so particularly for [M.R. 2] in that she no longer had an intact hymen or good rectal tone. Yet the children had not had any contact with their alleged perpetrators between the 1990 and 1991 examinations. In the 1991 examinations, Dr. Yelland found evidence of several scars on the children that in his opinion had been caused by cuts and burns. He had not noticed these scars the previous year despite doing a complete physical examination on each of the children. [126] It is obvious from his 1991 reports that his observations about the scars were based on the allegations made to him by the children. It is also obvious from his 1991 reports that the girls were making allegations of horrendous incidents of past sexual abuse despite the fact they had made none in 1990. The inescapable conclusion was that [M.R. 1] was continuing to abuse them in the Thompson home. Although the 1990 reports show that [M.R. 1] had "disclosed" one incident of abuse by Peter Klassen in 1988, the 1991 reports show that he had vastly expanded his repertory of abuse incidents and the number of the perpetrators who had abused him.

[127] In his 1991 medical reports, Dr. Yelland again makes statements of fact that are based solely on the unsubstantiated allegations of the children rather than on his physical examinations. In his report respecting [K.R.] he states:

. . . These children are victims or (sic) ritual and sexual abuse. The initial ritual and sexual abuse had occurred in their natural parents' homes. They were subsequently sexually abused in the Klassen's foster home prior to this present placement with the Thompson family.

He goes on to say that all three children were sexually and ritually abused and that [K.R.] described in graphic detail some of the ritual abuse that had occurred from infancy. [K.R.] related being burned and cut with knives, having knives inserted into her bum and vagina, and ingesting blood, feces, urine and raw fish. He says that all three children described in graphic detail the sexual abuse that occurred which includes oral, vaginal and genital contact. He also observes: "The older brother, [M.R. 1], has had intercourse with both girls."

[128] In his report respecting [M.R. 2], he makes similar observations about the ritual and sexual abuse suffered by the children at the hands of their birth parents and Donald White and also at their previous foster home involving Dale and Anita Klassen and a Diane Klassen [presumably Diane Kvello]. Again it involved oral, vaginal and anal sex and cuts and burns. In his report respecting [M.R. 1], Dr. Yelland makes similar observations and particulars of the ritual and sexual abuse at the hands of his natural parents and stepparents, including being deliberately burned by Anita Klassen. He also notes that [M.R. 1] has had sexual activity with his younger sisters.

[129] Each of the reports indicates that he is shown and notes physical scars which he states are consistent with the allegations of abuse by the children. He obviously is not told, nor does he appear to inquire, about any injuries the children may have suffered as a result of falls, school or home accidents and the like. Presumably, the serious injuries [K.R.] suffered when [M.R. 1] pushed her under the moving car would have accounted for many of the scars referred to by Dr. Yelland in his report.

[130] I make these rather lengthy observations to illustrate that the reliance on these medical reports by both Dueck and Miazga as bolstering the credibility of the children who made these incredible allegations, was not reasonable. They knew as a fact that [M.R. 1] was having sexual relations with his two sisters while he lived at the Klassens. They also knew as a fact that those relations continued while he lived at the Thompsons. They also knew as a fact that [M.R. 1] was sexually active with many other children. They knew as a fact that [M.R. 2] and [K.R.] were sexually active with one another and with others. For the most part, the medical reports merely confirmed that the children were sexually active. The findings outlined in the reports also suggested that the children became more sexually active after they left the Klassens and were placed together in the Thompson home. They also suggested that the injuries that had healed were suffered when the children were young and living with their birth parents.

[131] Yet Dueck and Miazga deliberately disregarded these facts known to them that strongly inferred that it was the sexual activity between the children themselves that provided the so-called independent medical evidence upon which they relied. Instead, they seized on the incredible allegations of the children, rather than on the known facts, to infer that the medical evidence pointed to abuse on the part of the 12 plaintiffs.

[132] It appears that Dr. Yelland ignored the most feasible source of the abuse as well. In my respectful view, his involvement in establishing the Saskatoon Sexual Abuse of Children Protocol and the volume of his practice that resulted from Social Services referrals, clouded his professional judgment and blinded him to any other conclusion than one that was consistent with the wild stories the children were telling him. As well, his clouded judgment may have impacted on his testimony in the court proceedings which followed. I will comment on his involvement and testimony in these proceedings later.

Initial Prosecutorial Advice Obtained by Dueck from Hinz

[133] Dueck zealously continued to pursue his case despite the advice he had previously sought and obtained from Terry Hinz, an experienced Crown prosecutor at that time. Dueck consulted Hinz likely in early April 1991, a short time before Miazga became involved in the case as a prosecutor. In general terms, Dueck left the detailed occurrence report that he had prepared with Hinz to review and asked him to advise him of the merits of his case. The occurrence report set out the bizarre allegations of the [R.] children against the 16 individuals Dueck proposed to charge with various offences. It also named other individuals whom Dueck did not intend to charge.

[134] Hinz took the report home on the weekend to read it over. He advised Dueck that if the children's allegations were true, he was dealing with a murder case and needed to investigate the case further to find evidence that would support such bizarre allegations. Dueck obviously did not like the advice he received so he ignored it and sought out another prosecutor who would be more sympathetic to his cause and point of view. I will have more to say about the Hinz consultation later.

Prosecutorial Advice Given by Miazga to Dueck

[135] Both Dueck and Miazga have distanced themselves from the decision to lay the multitude of charges that were brought against the plaintiffs. Dueck claims he sought out the advice of the prosecutors because this was a difficult case and he did not want to lay charges without advice. He claims he was advised by Miazga as to what charges should be laid before he swore the informations that set out the charges. Miazga claims that although he reviewed the file and Dueck's police report, it was Dueck who decided who and what to charge. Miazga told Dueck to go ahead with the charges if he "believed the children".

[136] I find this advice somewhat puzzling as it fails to address a material element of what is required before a police officer can lawfully proceed to lay an indictable criminal charge. The charges laid in this case were indictable criminal charges. It is trite law that charges respecting indictable criminal offences cannot lawfully be laid unless the person who lays them has reasonable grounds to believe that the individuals charged have committed the indictable offences charged. See s. 504 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and the wording of the form of an information set out in Form 2 of s. 849. Charges are laid by means of swearing an information in Form 2. This involves not only the subjective element of an honest and personal belief, but also the objective element of reasonable grounds for the holding of that belief. Accordingly, simply holding the belief is not sufficient to justify the laying of the information. There must be reasonable grounds for that belief.

[137] I realize that an experienced prosecutor like Miazga would not overlook such a material requirement of advising an investigating officer respecting the laying of charges that pertain to indictable criminal offences. But I can find no evidence that Miazga ever considered this issue or cautioned Dueck about it. Surely in the circumstances of this bizarre and convoluted case that implicated at least 16 individuals, those involved in pursuing the case would have made an assessment of not only their respective beliefs but also of the grounds on which those beliefs could be reasonably founded. It may have been assumed that reasonable grounds existed, but considering the case in perspective as I have previously outlined, the apparent lack of reasonable grounds should have been seriously questioned, discussed and addressed, particularly by Dueck and Miazga.

[138] It was at this juncture of the case that the considerable quantity of exculpatory evidence should have been considered to determine what impact, if any, it had on any reasonable grounds that could be relied upon. The determination of whether reasonable grounds existed could not be determined without a consideration of the exculpatory evidence as well as the inculpatory evidence. By way of example, there were the protestations of innocence by numerous individuals, many in the course of voluntary police interviews granted without the benefit of legal counsel. As well, the credibility of the allegations made by the [R.] children were bizarre and most unusual and by their very nature were extremely suspect. The credibility of the allegations and of the [R.] children themselves was the most critical issue of the case. The police report was comprised solely of these allegations. They alone were what was relied upon to lay the proposed charges against the 16 individuals who had been singled out, and then to prosecute them on those charges. It was known even then that the [R.] children were not truthworthy.

[139] It was also at this juncture, in the unusual circumstances of this case and the potential for disaster if the allegations were false, that the potential frailties in the Crown's case should have been at least summarily considered.

[140] Before advising Dueck, Miazga did not avail himself of the opportunity to view any portions of the videotaped interviews of the children to observe their demeanour or to assess the potential strengths or weaknesses of their allegations. Nor did he appear to consider the manner in which such critical allegations were "disclosed" to determine whether the evidence to be given by the children might have been contaminated by the significant involvement of individuals who were not professionals in obtaining those "disclosures". Again, this was not a simple and seemingly credible case of a child relating an inappropriate sexual touching or an assault by a parent or relative. I have great difficulty accepting that Miazga would have advised Dueck to proceed against so many people on so many serious allegations without even a preliminary consideration of these issues and a cursory look at the children on whom he would almost exclusively have to rely later at trial.

[141] Miazga obviously intended to eventually view the videotaped interviews of the children and to personally interview them prior to the preliminary inquiry. But in the unique circumstances of this case, Miazga could not responsibly or reliably determine the merits of the case before he had done one or the other. To advise Dueck to lay charges without doing so was not only irresponsible, but is a strong indication of malice. This was not a case where a snap decision had to be made because of urgent circumstances. [142] The charges had been contemplated for a year after the initial "disclosures" were made. Dueck had deliberately deferred laying charges to give him time to obtain as many "disclosures" as possible from the children on which to base his proposed charges. There were no concerns about the immediate arrests of the plaintiffs. Dueck was not planning on arresting them until mid July when their children would be apprehended as well. Deferring the charges for a few weeks until these matters could be properly considered would not have jeopardized the case and would likely have prevented the disaster that followed.

[143] It appears that Miazga did not really care whether there was a case worthy of prosecution or not. His attitude, and the rationale underpinning his advice, appeared to be that the children had uttered these allegations, Dueck had said he believed the children, so criminal charges should follow. If it turned out that the charges had no merit, let the courts sort the mess out later. But it was at this juncture, in the unusual circumstances of this case and the evident potential for disaster if the allegations were false, that the frailties in the Crown's case should have been seriously reviewed and considered. What should also have been considered is what impact the charges and the criminal proceedings that would follow, would have on the welfare of the children who would necessarily be drawn into it as crucial witnesses. There is no evidence that this even entered the minds of any of those involved in the prosecution despite their subsequent protestations that the children were being extremely traumatized and harmed by having to testify in court.

[144] Dueck and Miazga were aware of the Saskatoon Sexual Abuse of Children Protocol I will describe later. Both had participated in meetings with Social Services personnel and in particular with Bunko-Ruys. The exhortation in the Protocol to believe the allegations of children, undoubtedly had a bearing on the advice Miazga gave Dueck respecting the feasibility of the charges.

[145] I jump ahead to relate some significant events that subsequently took place in Red Deer respecting the arrests of the plaintiffs who lived in Red Deer and the apprehension of their children.

The Involvement of Social Services in Red Deer

[146] Sheila Verwey testified at the trial. She is a social worker with Alberta Family Services in Red Deer and has been involved for several years in child welfare investigations. She has had considerable experience in interviewing sexual assault perpetrators as well as sexual assault victims and has taken several courses in this regard.

[147] Her supervisor was contacted on April 28, 1991 by a social worker with Social Services in Saskatoon. Alberta Family Services was asked to assist Saskatchewan Social Services respecting a police investigation. In particular it was asked to apprehend the eight children of three groups of parents who lived in Red Deer and who would be arrested in July for sexually assaulting children. Verwey was one of three workers assigned to the case. Alberta Family Services was not given much detail about the sexual and physical assaults alleged against the parents of these children. But the allegations included sexual and physical assaults against their former foster children, against other children and against their own children. Alberta Social Services was asked to take no immediate action but to be ready to get involved when the arrests were made.

[148] By May 27, 1991, Alberta Family Services personnel had heard nothing further from Saskatchewan Social Services personnel so the supervisor called Saskatoon to see what was happening. Dueck returned the call and left a phone message on June 21, 1991 to advise that he was coming to Red Deer on June 24, 1991 to interrogate all the Klassens who lived there. Dueck and his partner James Walker, met at the police station in Red Deer with Verwey and the other Alberta Family Services social workers assigned to the case the day before he interviewed the plaintiffs. Verwey observed that Dueck appeared to be confident of what he was doing and also appeared to be excited and enthusiastic. He felt that he had an important case and that he was in the middle of a big investigation.

[149] He gave the Alberta Family Service social workers some background information to the effect that foster children had made allegations of ritualistic and satanic sexual abuse involving the individuals, including the Klassens families and their former foster children and their own children. Dueck stated that the eight Klassen children were also victims of the abuse and this was why he wanted them apprehended, examined medically for indications of abuse and then interviewed for "disclosures". The social workers were uneasy about the circumstances that Dueck was relating to them and they asked him a number of questions. Presumably to allay their concerns, Dueck gave them a copy of his occurrence report to review.

[150] The social workers went back to their office and discussed the matter for some time. They were unsure of their role as they were uncomfortable with what they had learned in the meeting and did not come to the same conclusions about the case as did Dueck. Dueck used the term "ritualistic abuse" to describe the events which, to Verwey, meant organized events that followed the same pattern. The Alberta Family Services social workers were not sure that they had been given enough information to justify the apprehension of the children. Verwey testified that part of the role of a social worker is to be open-minded and to screen information respecting alleged abuse even though proof of abuse is not expected. The Alberta Family Service social workers were not saying that what the foster children in Saskatoon were alleging was completely impossible, but they did not come to the same conclusions as did Dueck on the information he provided to them.

[151] The Alberta Family Services social workers acknowledged that their role was not to pass judgment on Dueck's investigation. But they were having trouble evaluating the bizarre allegations of the children and even after considering his occurrence report, still could not come to the same conclusions about their allegations as had Dueck. Verwey discussed her concerns with Cst. Richard Taylor, one of the Red Deer police officers whose assistance Dueck had enlisted, and asked him whether the Alberta Family Services had to agree that the sexual assaults alleged had in fact occurred. [152] Verwey and Taylor concluded that this was not a question that had to be addressed by Alberta Family Services. If arrest warrants were sent from Saskatchewan, Alberta Family Services had to carry out its support role of Saskatchewan Social Services that was not asking Alberta Family Services for its input. I pause to observe that Taylor was in effect telling Verwey that she need not be concerned about lack of honest belief or reasonable grounds if Dueck could get a warrant from Saskatchewan. It was Dueck's problem whether or not there were grounds, not her problem. Taylor said that it would be inappropriate for Saskatchewan Social Services to ask if Alberta Family Services agreed with the case. The role of Alberta Family Services was to apprehend the eight Klassen children, interview them about potential abuse and have them examined medically for indications of abuse. Verwey read the report again at home but it did not make her feel any less uncomfortable. The material did not answer her questions. She was distressed about the case and about the children she would be required to apprehend. I realize that Verwey's evidence about what Taylor said would be hearsay evidence if the truth of what he said was relied upon by the plaintiffs. They rely only on the fact it was said. This is similar to the evidence adduced by the defendants that I will outline later as to what the preliminary inquiry judge said to the prosecutors.

[153] Dueck advised Verwey that he would get the warrants that would be required to effect the arrests and that he would be back very shortly to effect the arrests. He wanted the Klassen children to be apprehended and interviewed concurrently with the arrests of their parents. Apprehension orders were then obtained by Alberta Family Services from an Alberta judge. The orders were sought and obtained not on the basis of the alleged abuse of the children, but on the basis that the parents were being arrested and the children would need guardians.

[154] Verwey apprehended the three children of Richard and Kari Klassen: K.K, eight, K.K., two and B.K., six months, from their home and took them into foster care on July 10, 1991, the date the other children were apprehended and the arrests of the plaintiffs effected. Verwey testified that Richard and Kari Klassen were cooperative but shocked, angered and full of disbelief at what was happening. She observed that their three children were the focus of their home as evidenced by drawings on the fridge and the walls and the presence of toys. Kari Klassen was crying and concerned about giving instructions to the social workers for the care of her six-month-old baby. She sent toys and other things along with the child. Richard and Kari Klassen did not want their children to see them being taken away by the police. Other social workers apprehended the three children of Dale and Anita Klassen. The two children of John and Myrna Klassen were not apprehended or interviewed because they were holidaying with friends.

[155] The six Klassen children who were apprehended were subsequently interviewed on videotape and sent for medical examinations by doctors who were advised to look for signs of sexual abuse. The examinations revealed no indications of sexual abuse. Nor did the interviews of the children indicate or suggest that they had been sexually abused or that they had any knowledge of the sexual abuse of others. Alberta Family Services had no concerns about the potential sexual or physical abuse of the children nor any other protection concerns. The children were ultimately unconditionally returned to their parents once the parents had been released in Saskatoon from custody.

[156] Because Alberta Family Services did not have any protection concerns respecting the two children of John and Myrna Klassen who were not available to them, they did not apply for protection orders respecting them. All this information, including the results of the examinations and interviews, were communicated back to Saskatchewan with the views of Alberta Family Services personnel that the children had not been sexually or physically abused. Verwey had been advised that Dueck was in charge of the Saskatchewan Social Services investigation. Yet he never advised Alberta Family Services that some of the same children that he was asking them to apprehend, had been medically examined the previous year for potential sexual or physical abuse with no indications being found. The documents tendered at trial establish that the two oldest children of Dale and Anita Klassen, T.K. and J.K., had been medically examined by Dr. Yelland for potential sexual abuse at the insistence of Saskatchewan Social Services with no indication of abuse being found. This is just another indication of Dueck's pre-judgment of the case and his desperate attempts to find some reliable evidence of abuse.

[157] Prior to being contacted by Dueck, Alberta Family Services had received no complaints respecting any of the Klassens or their children. In the two months that followed the apprehension, they received some malicious calls. After a preliminary investigation, they decided there was nothing to investigate further. Alberta Family Services has had no further contact by Dueck since July 10, 1991 nor has any Saskatchewan prosecutor ever contacted them about the case. To Verwey's knowledge, no one has ever asked for the videotapes of the children's interviews. Nor has anyone asked for a report or letter summarizing the outcome of the investigation. Again, this is an example of the mind-set of those involved in the investigation. This is indicative of how the defendants consistently ignored and suppressed any exculpatory evidence despite finding no support for the allegations they so diligently pursued.

[158] Verwey testified that Alberta Family Services has subscribed to a protocol similar to the Saskatoon Sexual Abuse of Children Protocol. One of its guidelines is that one must assume that child complainants are telling the truth. She testified that the protocol came about as a response to a generally held attitude prior to the 1980s. The attitude was that nice people do not assault children so that when children report sexual abuse they must be lying about it. The Alberta protocol was put in place to address the fact that sexual abuse does happen to children. She says that the protocol is a guiding principle, not a blanket statement. Children do not usually fabricate allegations out of the blue so their allegations must be taken seriously. But it is essential to then proceed with an investigation to see what the allegations are all about. She says that the procedure followed is that after the initial complaint, the police are contacted, all the potential witnesses are interviewed and the dynamics of the family, including its strengths and weaknesses, are considered.

[159] In cross-examination, Verwey acknowledged that there was no note on the screening form (the intake memo form used by Alberta Family Services) that the Klassen children were victims of abuse as well as the other children involved. But she understood, from the information given to them by Dueck, that this was the assertion that had been made to them. She acknowledged that even though the children's allegations of abuse were very strange and unusual, and even though there were a large number of people implicated, the allegations could be true. But she said their concern was not that such things could not happen. Rather, their concern was that Dueck was coming to the conclusions he did based on the information he had. She assumed that he likely had other information to support his conclusions, but she was still of the view that the assessment of the child complainants was of critical importance.

[160] I found Verwey to be an honest and courageous witness. She is obviously an objective, competent and experienced social worker.