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Judge George Baynton's historic judgment, page 3

Continued from Page 3

[161] Verwey's assessment of the underlying purpose and objective of a child sexual assault protocol, one that acknowledges the necessity for a proper investigation of sexual assault allegations of children, comports with common sense and is in accordance with what has been the law of free and democratic countries for years. No allegation from anyone, be they an adult or a child, can be taken blindly at face value and then acted upon without question. Doing so risks disastrous consequences including the wrongful conviction of innocent individuals. This case is a prime example of what happens when gullible child care workers, police officers and prosecutors ignore time-tested legal principles and throw common sense to the wind. The plaintiffs were wrongfully and needlessly put at risk for lengthy terms of imprisonment up to a maximum of 10 years on each offence charged against them. They faced that risk for one and a half years until all the charges were stayed by the Crown. In the decade since the stays, they have lived under a cloud of suspicion. It is no credit to any of the defendants that the plaintiffs did not have to endure the jail terms for which they were put at risk.

[162] I move back to relate Taylor's evidence. He testified that he received a call from Dueck in June 1991 asking for assistance. Taylor's intended role was to locate the members of the Klassen family that Dueck proposed to charge so that Dueck could interview them at the police station. He was given a "Reader's Digest version" of the case which he understood involved fourteen children who had made "disclosures" of abuse. I pause to note that the 14 children had to have included the Klassen children in Red Deer because at that time there were at most the three [R.] children and four others whose abuse allegations were being relied upon to found charges.

[163] Taylor says he was advised by Dueck that after the Klassen adults had been arrested, the children in their homes would be apprehended for interviews. He said that Alberta Family Services would be responsible for interviewing the children. Dueck came to Red Deer on June 24, 1991 and the interviews of the Klassen adults took place on June 25, 1991. Taylor was not asked to assist in the interviews. Richard and Kari Klassen went voluntarily to the police station for their interviews as did Dale and Anita Klassen. Dueck later advised Taylor that none of the Klassens had made any inculpatory statements and that they had refused to answer any questions on the advice of counsel. The videotaped interviews clearly establish that this is false.

[164] Dueck called Taylor on July 9, 1991 to let him know that the charges had been laid and to request Taylor to make arrangements for the arrests of the Klassens on July 10, 1991. Taylor was aware that Alberta Family Services would be apprehending the children. It is significant that he declined the request of Alberta Family Services to give evidence on their court application for the apprehension warrants respecting the Klassen children because he had no evidence to give that the children were at risk. The six Klassen adults were arrested on July 10, 1991 and at 7:00 p.m. on that date, a Justice of the Peace came to the remand centre and remanded them all for six days. After that period they were transported to Saskatchewan and spent another night in custody there. Taylor confirmed that all the medical examinations of the children who had been apprehended were negative for indications of abuse and that no disclosures had been made by them during their interviews.

[165] Taylor confirmed the importance of keeping a notebook and of updating the central registry file as soon as possible. He says that Dale Klassen was at the police station for over an hour when he was interviewed by Dueck. This tends to confirm the testimony of Dale Klassen that the short videotaped interview of him that was viewed in court, represented only a small segment of his full interview with Dueck. I will comment on this later.

[166] The evidence of Verwey and Taylor strongly suggests that neither Dueck nor Saskatchewan Social Services had any concerns about the safety of the eight Klassen children. If they had such concerns, surely they would have apprehended them in May or June when they first contacted Alberta Family Services rather than waiting until mid July to do so. This is just another indication that Dueck's only concern about the eight Klassen children was the possibility that he could get "disclosures" from them against their parents to bolster his non-existent case. Long before he interviewed the adult plaintiffs he had made plans to lay charges and obtain arrest warrants against them. It is obvious that he did not go to Red Deer to investigate the allegations against them or to try to determine the truthfulness of them. His only purpose was to try to get confessions from the plaintiffs to strengthen his case.

[167] Taylor testified that he has no note of, and cannot remember, any discussion with Verwey or Alberta Family Services personnel respecting concerns about the validity of the charges. Where her testimony differs from Taylor's, I accept Verwey's. She was concentrating on the nature of the abuse allegations and whether they constituted grounds for the apprehension orders that Dueck was seeking. Taylor was concentrating on the mechanics of the arrests, not on the substance or strength of Dueck's case. In Taylor's view, such matters were no business of Alberta Family Services.

[168] He left child apprehension issues up to Alberta Family Services. He never considered questioning the charges and likely did not notice or place any importance on the reservations that were held by Verwey or other Alberta Family Services personnel. Verwey was very specific about their concerns and was able to give the most reliable account of those concerns.

[169] It is significant to note that even before the arrests were made, Dueck's case had been seriously questioned by two very competent and unrelated individuals. The first was by Hinz, an experienced prosecutor. The second was by Verwey, an experienced social worker whose concerns were also shared by her fellow social workers. It is obvious that Dueck gave no consideration to these concerns expressed to him by these professional individuals. The fact he chose to ignore the warning flags that these concerns should have been to him, indicates that he had tainted tunnel vision and a closed mind about his case.

Miazga's Involvement in Dueck's Investigation

[170] Miazga's best estimate of his first meeting with Dueck is in late April or in early May of 1991. The evidence of Verwey establishes that Saskatchewan Social Services contacted Alberta Family Services on April 28, 1991 and Dueck himself called on June 21, 1991. It is more likely than not that Miazga first met with Dueck in April 1991 shortly after Dueck had met with Hinz. It is not clear whether Dueck contacted Alberta Family Services on his own initiative or on the suggestion of Miazga. Due to the professed inability of either of them to recall much in the way of detail respecting their meetings, what they discussed, what they determined to do or what they even thought about the proposed charges, there is little evidence before me to address these questions.

[171] But it is known that after receiving advice from Miazga, Dueck did a few things that were suggested to him. Up until then, his investigation consisted solely of eliciting and recording the "disclosures" of the children. At the suggestion of Miazga, he obtained a couple of search warrants respecting the related [R.], [R.] and White potential charges. It appears from the evidence that he made arrangements to interview the plaintiffs in Saskatoon and Red Deer because of Miazga's suggestion to do so. It would also appear from the evidence that he made arrangements to obtain the June 1991 Yelland medical reports respecting the [R.] children because of Miazga's suggestion to do so.

[172] I mention these matters to illustrate that Miazga had gotten quite involved in the case several weeks before the charges were laid and the plaintiffs were arrested. He does not deny this because he has no notes of his dealings with Dueck and only a poor recollection of them. He does remember that Dueck never told him of the previous consultation with Hinz for his opinion of the case. Nor did Miazga become aware until after the prosecution had long been concluded of what Hinz had advised Dueck. Dueck's withholding of this significant event from Miazga is a strong indication of malice. But despite the lack of evidence from Dueck and Miazga on what they considered and discussed among themselves about the case, surely Miazga would not have proceeded to prosecute the case without more than the incredible allegations of the children. Surely he would have made inquiries of Dueck to learn what had come out of Dueck's investigation of the matters that he had previously suggested to him.

[173] In so doing, unless Dueck deliberately withheld all this information, Miazga would have known of the disappointment Dueck suffered in failing to obtain any confessions from the plaintiffs, in failing to obtain any "disclosures" from the apprehended children in Red Deer, in failing to obtain any medical reports with physical findings consistent with the sexual or physical abuse of [K.R.] or [M.R. 2] by any known person except [M.R. 1] and in failing to recover any useful evidence from the searches that were conducted pursuant to the search warrants.

[174] Miazga would also have known of the strange turn of events evidenced by the Yelland medical reports that set out more indications of sexual abuse of [M.R. 2] and [K.R.] than had been reported in the Yelland medical reports the year before. Miazga and Dueck knew that none of the plaintiffs or any others who had been charged, had access to the [R.] children during the time interval between the physical examinations of the [R.] children in 1990 and 1991. Miazga would likely have known, or should have known, from his discussions with Dueck or from a review of the police file, that Schindel had previously assessed [M.R. 1]'s "disclosures" as being vindictive toward Anita Klassen and projecting previous abuse suffered in his birth home to the Klassen family. Miazga would also likely have known, or should have known, from his discussions with Dueck or from viewing the police interviews of the persons charged, that Kari Klassen had recently made a similar perceptive observation even though she could not have known that Schindel had made a like assessment previously. She had made this observation to Dueck as a possible explanation for the allegations of abuse made against the Klassens in response to his unrelenting demands that she provide him with an explanation as to why the children would make such allegations.

[175] As Dueck did not tell Miazga about the negative reception he received from Hinz, he likely did not tell him either about the negative reception he got from Alberta Family Services. But it is astounding that Dueck and Miazga never reconsidered the merits of their case when all Miazga's investigative suggestions turned up negative. The little bit of investigation Dueck did actually weakened, rather than strengthened, their case. As well, the number of Dueck's prospective complainant witnesses with the potential of corroborating the wild allegations of the [R.] children had just dropped from fourteen to eight.

[176] I have a concern about the lack of evidence on another issue. Dueck, Taylor or Miazga never gave any explanation as to why three couples, who were presumed innocent until proven guilty according to law, were kept locked up for a full week before being released on bail. These three couples were obviously not considered a threat to society nor to their children because no steps had been taken to arrest them or apprehend their children for a year and a half after they were implicated in the so-called abuse "disclosures". None had any criminal record except for Richard Klassen who had a past record of unrelated offences that went back to his youth. Nor was any explanation given for the stringent non-contact provisions imposed on the plaintiffs as a condition of their release from custody. In fairness to Miazga, he did consent to an amendment of the noncontact provisions so that the families could spend Christmas together. But the way they were held in remand and were treated in remand in Saskatoon, are indications of malice.

Police Interviews of the Plaintiffs

[177] I step back to comment in more detail on the police interviews of the plaintiffs I referred to earlier. Four of the six plaintiffs who lived in Red Deer, Dale and Anita Klassen and Richard and Kari Klassen, agreed to be interviewed at the police station there without the benefit of legal counsel. Walker, Dueck's assistant, interviewed Kari Klassen. Dueck interviewed all the others. Four of the six plaintiffs who lived in Saskatoon, Dennis and Diane Kvello and their two children, S.K. and S.K., also agreed to be interviewed at the police station there without the benefit of legal counsel. In the course of the interviews of the adult Kvellos, Dueck obtained their consent to interview their children about the offences alleged against those children. At the time of the subsequent arrests, Dueck interviewed the male Kvello child and as well either interviewed the female Kvello child or made arrangements for the interview of her. Although these two Kvello children had also been charged with sexual offences alleged against them, they were not asked questions about those allegations. Instead, they were aggressively questioned about being abused by their parents.

[178] It is significant that Dueck made arrangements to interview the plaintiffs only after being prompted to do so by Miazga. The interviews were scheduled less than a month before the plaintiffs were arrested. Long before Dueck made arrangements to interview the plaintiffs, he had made up his mind to charge them. This is evident from the evidence as a whole and from the statements he made at that time to others, including Alberta Family Services personnel and to the plaintiffs whom he interviewed.

[179] Quite understandably, Dueck's objective in conducting videotaped interviews of those he planned to charge, was to obtain confessions from them. But again, it is significant that he did not question or have the two children questioned for the purposes of obtaining a confession from them. Instead, they were questioned in an attempt to obtain "disclosures" that they had been sexually abused by their parents. Had such "disclosures" been obtained, it is apparent that Dueck and Miazga would not have proceeded with the young offender charges but would have arranged with Social Services to apprehend them, and call them as witnesses against their parents on new charges to be added to those already proposed. The contents of the Matkowski memo introduced into evidence inferred as much.

[180] It was obvious from the nature of Dueck's "investigation" and from his timing and conduct of the videotaped interviews of the plaintiffs, that he had no genuine interest in hearing anything that they might say to suggest that the potential charges he had previously determined to lay were unfounded. The evidence establishes that he ignored all other exculpatory evidence even though it was available to him. The evidence also strongly suggests that he would continue to ignore any such evidence that might later become available to him. He had committed himself to pursue the charges and he was not prepared to risk his reputation or jeopardize the case he had immersed himself in for the past year and a half by backing off at this juncture. His questions of the plaintiffs were not designed to elicit their responses to specific allegations of abuse. They could not do so because Dueck would not give them anything specific to respond to. His questions consisted primarily of bullying them with a question they were incapable of responding to, namely why the children would lie about being abused by them.

[181] The fact that he was more interested in pursuing the charges than learning the truth of the allegations is also demonstrated by his involvement with Alberta Family Services in Red Deer. He arranged for them to apprehend all the biological children of the plaintiffs who lived there with the objective of obtaining "disclosures" of sexual abuse and medical examinations that indicated abuse. Although he told others that the children had been sexually abused by their parents, he knew that they were not apprehended on this basis because there were no grounds to do so. Interviews and examinations of the children had previously indicated that they had not been abused, a result that was inconsistent with the wild allegations of some of the [R.] children. The only basis for the apprehension of the children in Red Deer was that they would have no one to care for them once their parents were arrested as planned.

[182] As he had done with the Kvello children, the interviews of the Klassen children took place on the very day that the plaintiffs were arrested on the charges that had been laid a few days before. Even if these child interviews had resulted in "disclosures", they could not have been taken into account by either Dueck or Miazga in determining whether there were reasonable and probable grounds to lay the charges. This was so because Dueck had already laid the charges on the advice of Miazga several days beforehand. In like fashion, even if the adult interviews had resulted in confessions, they could not have been taken into account in determining the issue of whether reasonable and probable grounds existed because Dueck and Miazga had already made up their minds to lay the charges and I am satisfied that nothing the adults said could have swayed them from their objective to pursue them.

[183] During the trial, counsel for Dueck pointed out that I had stated in my nonsuit judgment that "many" of the plaintiffs who were interviewed by the police had offered to take a polygraph test. He is correct that this term is somewhat misleading and should be clarified. To provide the context in which this statement was made I reproduce the two relevant paragraphs from the non-suit judgment:

[52] The mental and emotional state of each of the [R.] children, particularly [M.R. 1], was abnormal to the extent that [M.R. 1], and to a lesser degree, [M.R. 2], required almost constant supervision, not only at school but elsewhere including their home. The children made allegations against numerous perpetrators and although most of these allegations were not pursued by Dueck, he caused charges to be laid against some 16 individuals, two of whom were themselves children of one of the couples who were also charged. The proceedings against these two children proceeded under the then Young Offenders Act, R.S.C. 1985, c. Y-1. Many of the plaintiffs who were charged volunteered to be interviewed without the benefit of counsel. All who were interviewed denied they had sexually abused the children and many offered to take a polygraph test in an attempt to establish their innocence.

[53] For many of the reasons enunciated by Klebuc J. in Klein v. Seiferling, supra, that I have previously outlined, I conclude that a reasonable person might consider this evidence to constitute a warning flag that called for further investigation and an attempt to obtain evidence to support or discredit the bizarre allegations of the [R.] children. The evidence indicates that the police investigation consisted almost entirely of interviews of the children to obtain and document their disclosures and interviews of the plaintiffs in an attempt to obtain their confessions. Lacking a proper or at least a more thorough investigation of the horrendous and serious allegations made in this case against so many different individuals, I am satisfied that a reasonable person could conclude, in these circumstances, that the plaintiffs were probably not guilty of the host of serious offences alleged against them.

[184] I will elaborate on my previous reference to the polygraph test. The majority of the plaintiffs who did offer to take a polygraph test did so in response to the suggestion made by Dueck and his assistant that they do so. The offer of at least one of the plaintiffs was conditional on the reliability of the polygraph and on the confirmation of his legal counsel. But Dueck, becoming frustrated with the plaintiffs' repeated denials of the sexual assault allegations, withdrew his offer to make the polygraph test available to the plaintiffs. It appeared to me from viewing the videotapes, that the plaintiffs had called his bluff and he did not want to run the risk that the polygraph tests might prove to be in the plaintiffs' favour. Not all the plaintiffs who voluntarily submitted to an interview by Dueck or his assistant were given the option of taking a polygraph test. Having clarified this issue, I move on to make some additional observations about the police interviews conducted by Dueck.

[185] Dueck's lengthy grilling of the plaintiffs, particularly Anita Klassen and Diane Kvello, was far more aggressive, intimidating and humiliating than was required in the circumstances. It is one thing to grill a suspect and to use deception and other disgusting aspects of subterfuge that are at times a necessary aspect of police investigations when dealing with sophisticated, case hardened or street-smart criminals. But the pressure he brought to bear on these two female plaintiffs in particular, was reprehensible. To expedite the description of the interviews, I will comment on the things in common about both interviews even though the interviews were conducted separately and in different provinces.

[186] Both of the former foster mothers unconditionally volunteered to be interviewed by Dueck on videotape at the police station without the benefit of counsel. Anita Klassen's interview took place in Red Deer. Diane Kvello's interview took place in Saskatoon. Both consented to answer Dueck's questions without contacting a lawyer even though they were cautioned by Dueck at the outset of the interview about their rights to remain silent and about their rights to legal counsel. They were also told that anything they said could be used in evidence against them. Each of them was cooperative and each gave the appearance of having nothing to hide but simply wanting to get to the bottom of what was being alleged against them. Dueck gave them very few details of the allegations so they were never advised of what the children were saying they did to them. Instead, Dueck kept on telling them that the children who had been taken out of their respective foster homes had been in therapy and had made multiple "disclosures" of abuse against them.

[187] Dueck told the two female plaintiffs that children never lie about these things and that other children, who had also said they had been abused by them, were corroborating one another's evidence. He kept on asking the plaintiffs how they could explain why young children would make such allegations against them if they were not true. Understandably, the poor women could not provide him with a satisfactory answer other than to deny that they had ever done anything to any children, including the foster children that had been taken from their respective foster homes. Neither of the women gave any indication throughout that she was being untruthful in her answers nor was holding back any information.

[188] What was particularly reprehensible and uncalled for was that Dueck probed each of them about the personal details of sexual abuse they had experienced as young girls, telling them that those who are sexually abused become sexual abusers. As will be noted later in this judgment, this was a proposition that was advanced throughout the subsequent criminal proceedings by the testimony of the various child care givers in an attempt to justify the sexually abusive conduct of the [R.] children. Rather than telling Dueck to mind his own business as they had every right to do, the two women cooperated further with him and provided him with the details he sought of the sexual abuse they had previously suffered. It is difficult to conceive how the details of the sexual abuse that these two women had suffered years before had any relevance to Dueck's police investigation. His purpose in pursuing this line of question was to put these women under even more emotional stress by getting them to relive the traumatic experiences they had attempted to put behind them.

[189] Dueck succeeded in putting so much stress on Anita Klassen that she burst into tears and sobbed uncontrollably. When he kept bullying her she tried to run out of the room. He kept calling her back and when she returned, she curled up into a fetal position, still sobbing. In desperation, she finally requested to see a lawyer. Dueck ignored her repeated requests and kept on questioning her and demanding that she give him an explanation as to why these children would make such allegations if they were not true. She was so upset by the time he had finished with her, that he drove her to the sexual assault centre. It was obvious that she was in no condition to walk home. She was later admitted to the psychiatric ward in the hospital.

[190] Diane Kvello said that after the videotaped interview was concluded, Dueck told her that if she did not plead guilty, he would charge her children. Although I do not base any of my conclusions on this evidence, it is likely true.

[191] Dueck's grilling of Richard Klassen and Dennis Kvello was just about as brutal. He also tried to get them to admit that they had been sexually abused as children. Fortunately he was not successful in putting them under the same degree of emotional pressure he had brought to bear on Anita Klassen and Diane Kvello. It appears that only a part of the interview of Dale Klassen was videotaped so a comparison cannot be made as to what kind of pressure was exerted by Dueck on him. Except for Richard Klassen, who had a criminal record as a youth for unrelated offences, none of the other plaintiffs had police records and were just normal ordinary people trying to make a living like other normal ordinary people.

[192] Dale Klassen claims that Dueck interviewed him for twenty to thirty minutes during which time he kept on telling Dueck that he had been advised by his lawyer not to say anything. Dueck ignored this information and kept on questioning him. Dale Klassen continued to deny that he had abused any children. The videotape is of much shorter duration than twenty minutes and simply depicts Dueck advising Dale Klassen of his legal rights and Dale Klassen responding that he was advised by his lawyer not to say anything. The tape does illustrate however, that Dale Klassen told Dueck of the instructions he had received from his legal counsel. Despite this, Dueck keeps questioning him, saying that he is obliged by the prosecutors to interview him. Dale Klassen finally asks if he can go and the tape ends.

[193] It was put to Dueck in cross-examination that he had consistently denied Anita Klassen's Charter rights to counsel. He replied that his understanding of the law at that time was that once he had given a person the right to counsel and the person declined that right, he could keep on asking the person questions as long as the person kept talking to him. He said it mattered not whether the person continued to make repeated requests for counsel. Dueck had no qualms about stating that this was his practice. The kindest observation I can make about Dueck's interview practices, is that they demonstrate his tendency to push his powers as a police officer to the limits while affording those in his custody with the most minimal compliance as possible with their basic Charter rights. For this reason alone, I prefer the evidence of Dale Klassen that most of his interview by Dueck was not videotaped.

[194] By way of stark comparison, the interview of Kari Klassen by Walker, Dueck's assistant, was done in a much more humane fashion. Although he pressed her for a confession and challenged her with questions, he did so in a gentlemanly manner and without putting undue pressure on her. As was the case with Diane Kvello and Anita Klassen, Kari Klassen seemed stunned and taken aback by the fact that child abuse allegations had been made against her. Kari Klassen had never been a foster mother. She consistently denied ever abusing any children, including any of the foster children who had made allegations against her. When she was asked for an explanation as to why the children were saying these things if they were not true, she responded with the only possible reason she could suggest. She had been advised that the children had been neglected or abused in their birth home and she suggested that they likely were making such allegations because they resented their parents.

[195] In fairness to Dueck, I recognize that a police officer has a difficult job and it often involves unpleasant duties. Even competent police officers are sometimes zealous and aggressive. But there are limits to the degree of zeal and aggression that is acceptable in a free and democratic society. Dueck's conduct in this case exceeds that limit. He often asked the plaintiffs he interviewed to respond to hypothetical fact situations that he posed to them that were not representative of the circumstances of the incredible allegations they faced. As an example, he asked some of the plaintiffs if they would disbelieve their children who ran into the house and reported being sexually assaulted in the park. What is particularly troubling about his zeal and aggression against the plaintiffs is that it so tainted and distorted his so-called investigation, that he was not willing to even consider the possibility that the plaintiffs could be innocent of the horrible allegations made against them. I conclude that his "investigation" was in reality no investigation. The conduct he exhibited in his interviews of the plaintiffs is a strong indication of malice.

Charges Laid Against the Plaintiffs

[196] The particulars of the various criminal charges laid against the plaintiffs are somewhat convoluted because some were withdrawn and replaced by other charges and some were not laid until after the court proceedings had commenced. My summary is not strictly accurate but is adequate for the purposes of this judgment.

[197] All the plaintiffs, except those who were proceeded separately against as young offenders, were jointly charged on July 6, 1991 with sexual assaults against [M.R. 1], [M.R. 2] and [K.R.], (the foster children in the Dale and Anita Klassen home), over a seven-year period of time between January 1, 1984 and December 31, 1990. [198] Pamela Sharpe was additionally charged on the same date with sexual assault against T.H., (a foster child in her home), over the same period of time. [199] S.K. (male) and S.K. (female), the two plaintiffs who were proceeded with as young offenders, were jointly charged on the same date with sexual assault against [M.R. 2], (a foster child in the Dale and Anita Klassen home), over the same period of time.

[200] S.K. (male) was additionally charged on the same date with sexual assault against S.L.H., (a foster child in the Kvello home), over the same period of time.

[201] John and Myrna Klassen and Dennis and Diane Kvello were additionally jointly charged on July 15, 1991 with sexual assaults against each of S.W.H., S.E.H. and S.L.H., (foster children in the Kvello home), over the same period of time.

[202] S.K. (male) and S.K. (female) were additionally jointly charged on July 18, 1991 with sexual assault against [M.R. 2], (a foster child in the Dale and Anita Klassen home), over the same period of time.

[203] S.K. (male) and S.K. (female) were additionally jointly charged on November 19, 1991 with sexual assaults against [K.R.], [M.R. 2] and S.W.H., (the two [R.] children being foster children in the Dale and Anita Klassen home and S.W.H. being a foster child in the Kvello home).

[204] S.K. (male) and S.K. (female) were additionally jointly charged on November 26, 1991 with sexual assaults against [K.R.], [M.R. 2] and S.W.H., (the two [R.] children being foster children in the Dale and Anita Klassen home and S.W.H. being a foster child in the Kvello home).

[205] Pamela Sharpe was charged on November 27, 1991 with sexual assaults against M.K. and T.K., (foster children in her home).

Arrests of the Plaintiffs

[206] As indicated previously, the arrests of the plaintiffs and the apprehension of their children were orchestrated by Dueck and Social Services well in advance of the planned charges and arrests and long before Dueck travelled to Red Deer, Alberta to interview the plaintiffs who lived there. It was only because the plaintiffs and their children who resided in Red Deer were outside the jurisdiction of Saskatchewan Social Services, that the assistance of Alberta Family Services personnel in Red Deer had to be secured. The six plaintiffs who lived in Red Deer were arrested on July 10, 1991.

[207] The trauma associated with the arrest of Richard and Kari Klassen from their homes was accentuated by the stress of seeing their children apprehended from them by Alberta Family Services. It was also an emotional experience for Dale Klassen when he was arrested at his home and his three children were taken from him. Anita Klassen was arrested at her place of employment. John and Myrna Klassen were arrested at their home after their children had left for an outing with friends. During the time these three couples were remanded in custody in Red Deer for six days, the wives were held together and the husbands were held together. The three couples were all returned to Saskatoon where they spent another night in custody before being released on bail. They then had to find a means of getting back home to reconnect with their children who had been placed into foster care.

[208] Some of the six Red Deer plaintiffs testified that they were well treated while in custody in Red Deer but were given a much "cooler" reception by the police in Saskatoon by being treated with contempt and being placed for the night in a cold cell without a bunk.

[209] The remaining six Saskatoon plaintiffs, Pamela Sharpe, Marie Klassen and the four Kvellos, were also arrested on July 10, 1991. They too suffered the humiliation and trauma of being arrested. Marie Klassen had to be taken to the police station in her wheelchair. She is now deceased and the desire that she carried to her grave was that she and her sons and daughters-in-law would be exonerated of the criminal charges in the eyes of the public. Dennis Kvello is also now deceased. The proceedings affected him so deeply that he had his company switch him from his position as a residential electrician to one as a commercial electrician so that he could avoid coming in contact with any children. He was no longer able to touch his own children and lost the desire to have sexual relations with his wife, circumstances that continued until his death.

[210] S.K., one of the young offenders testified that she was interviewed when she was arrested by Dueck and by Bunko-Ruys in an attempt to get her to make "disclosures" of sexual abuse on the part of her parents and her brother. She felt particularly "threatened" when Bunko-Ruys "tried to make me say that my parents abused me". She testified that Bunko-Ruys told her twice that if she did not admit this, she (Bunko-Ruys) would lose her job. She denied any abuse or inappropriate touching on the part of her brother or anyone else. She broke down on the witness stand as she related this incident that occurred over 12 years before.

[211] In fairness to Dueck and Bunko-Ruys, it appears from the Social Services memos, (one of the few that the parties were able to secure from the defendants' records and tender into evidence), that the interview was conducted by Walker and by Matkowski. Surprisingly, there is no videotape of this interview even though it was conducted by a police officer in the soft room furnished with a video camera and in the presence of a therapist or social worker. As well, Bunko-Ruys did not take the witness stand to deny this assertion respecting her. It is also troubling that the videotape of this interview cannot be located. This is particularly so when other potentially damaging pieces of evidence which should have been in the possession of police cannot be found. I refer to the Schindel report as an example. S.K. may be mistaken about the identity of her interviewers, but I am satisfied that her vivid memory of what she recalls was said to her is accurate. Even if it was Matkowski who made the comment, the point is that it demonstrates the level of pressure that was routinely put on children by Social Services personnel or by the police to "disclose" abuse on the part of their family members in cases where no such abuse had ever occurred. Such conduct is reprehensible and is a form of child abuse committed by agencies to whom children are entrusted.

The Reliance on the Saskatoon Sexual Abuse of Children Protocol

[212] The defendants all rely heavily on the Saskatoon Sexual Abuse of Children Protocol in their attempts to justify why they took a subjective rather than an objective view of the children's allegations. There are two such Protocols, one released in 1986 (before the allegations that are the subject of this case were acted upon) and the other in December 1991 (after the prosecutions based on those allegations were begun). The difference between them is so insignificant that I will restrict my comments to the provisions of the 1986 Protocol. The Protocol represented an interdisciplinary approach that had been agreed upon among various agencies, including the Saskatoon City Police, Child and Youth Services (Social Services), Public Prosecutions and other agencies. It was spawned to address what was undoubtedly an attitude that the sexual assault allegations of children were unreliable.

[213] Prior to the mid 1980s, the social and justice system did not do enough to investigate allegations by children of sexual abuse and then bring to justice the perpetrators of such abuse on those defenseless children. Some of the most heinous criminals in our society, child molesters and pedophiles, were never charged and prosecuted primarily because their victims were considered to be unreliable witnesses.

[214] As with many well-intentioned responses to social problems in our society, the Protocol may have gone too far in its laudable objective by creating another potential social problem of the same magnitude. The case before me demonstrates how the Protocol was interpreted and utilized to justify a cause of action that ignored time-tested legal traditions and violated the basic legal rights enjoyed by the plaintiffs in conjunction with all other members of our free and democratic society. The lives of the plaintiffs have been irrevocably damaged. The unlawful actions of the defendants caused them to be held up to hatred and public ridicule by being branded as pedophiles and wrongfully charged with the most horrible and distasteful crimes in our society. The social problem caused by these consequences would not have materialized had the basic democratic and legal protections and presumptions guaranteed by our Constitution not been sacrificed to address another social problem, the reluctance to accept allegations of child abuse. The laudable objective of the Protocol in addressing this social problem does not justify the violation of constitutional rights.

[215] But in fairness to those who are responsible for the Protocol, I am of the view that Social Services and the defendants put a "spin" on it that is taken out of context by relying solely on one aspect of it and ignoring the others. The main criticism of the Protocol is that it tends to be lopsided. It overemphasizes the need to accept the allegations of children and underemphasizes the equal or higher need to properly investigate those allegations to avoid the likelihood of wrongfully charging and convicting innocent people. Some of its provisions appear to minimize or understate the requirement of the law for reasonable grounds to justify the duty to report child abuse and the duty to investigate it. In view of what happened in this case that demonstrates the prevailing attitude of Social Services and child care workers in the late 1980s and early 1990s, it is important to emphasize this requirement.

[216] Sections 12(1) and (4) and 13 of The Child and Family Services Act provides as follows:

12(1) Subject to subsections (2) and (3), every person who has reasonable grounds to believe that a child is in need of protection shall report the information to an officer or peace officer.

. . . (4) Every peace officer who has reasonable grounds to believe that a child is in need of protection shall immediately report the information to an officer. . . .

13 Where a report is made pursuant to subsection 12(1) or

(4), an officer or peace officer shall investigate the information set out in the report if, in the opinion of the officer or peace officer, reasonable grounds exist to believe that a child is in need of protection.

[Emphasis added]

The version of the legislation that was in effect in 1990 is for all intents and purposes the same.

[217] The Protocol addresses the respective roles of individuals who are involved in the sexual abuse of children. It integrates those roles, particularly that of the police officer and that of the adult who bring forward the complaint, more closely than was the case traditionally. The Protocol is essentially a list of instructions to give directions and provide a consistent approach to those responsible for the reporting and investigation of child abuse. The instructions are set out in sections and beside the instructions are explanatory guidelines. Although not part of the instructions, the Protocol contains a Statement of Beliefs.

[218] I am loathe to clutter up this judgment by referring to specific provisions in the Protocol. But there is no other means by which I can demonstrate that the interpretation placed on the Protocol by the defendants is erroneous and that their reliance upon that erroneous interpretation is of no assistance to them. I will comment on only those provisions that are relevant to this case to establish three principles. First, an objective standard is incorporated into the reporting and investigation of child abuse. Second, a proper police investigation, independent of the child's allegations, is required. Third, justice issues must be considered and adhered to. The Protocol clearly does not purport to override criminal laws and procedures or the protections granted by the law and the Charter to members of the public who may be charged with a sexual abuse offence. A careful reading of the provisions also demonstrates that many of the things done by Social Services personnel and by at least some of the defendants, were not done in accordance with the provisions of the Protocol.

[219] The relevant part of the Statement of Beliefs is Clause C which provides:

"Children bear no responsibility for their victimization by adults. They will be assumed to be telling the truth when reporting abuse." This provision in the 1991 Protocol was expanded to add: "Their statements will be accepted and investigated." I now move on to the Protocol provisions themselves.

[220] Section 1 reflects the legal requirement to report "suspected abuse" which is defined by s. 1.1 to mean a "reasonable suspicion" of that abuse. The term "reasonable" implies an objective consideration as well as a subjective one. Upon receipt of a report of reasonably suspected sexual abuse, the police are required by s. 1.2 to document the report and by s. 2.1 to initiate the "appropriate investigation" which, as the guideline indicates, includes "checking for available information relevant to the case".

[221] The s. 2.1.2 guideline provides that: "The Department and the Police are commonly concerned first about the immediate safety of the child. Secondly, they are concerned about the protection and justice issues ". Section requires the police "to investigate the circumstances and facts of the alleged offence." The guideline states that:

"Facts and descriptive information regarding the alleged offence will be necessary to determine the potential impact upon the child and the culpability of the alleged offender."

[222] An "appropriate interview procedure with the reported victim" is required by s. 3.1. The guideline provides that: "IDEALLY, one interview with both an officer of the Department and a Police Officer present, should be sufficient in the initial investigation to determine if sexual abuse has occurred." Section 3.1.3 provides that: "The interview will focus upon information related to: 1) the safety needs of the child, 2) psycho/social needs of the child, and 3) facts related to the incident(s) of abuse." The explanatory guideline provides that: "Detail of the incident(s) will assist to assess: 1) substantiation of the allegation, and 2) impact upon the child, short-term and long-term."

[223] Section 3.1.5 provides that: "The investigating officer will ensure adequate documentation of the interview." The guideline provides: "Documentation of Interview As may be necessary to establish: 1) that a child is, or is not, in need of protection, 2) that an offence has, or has not, been committed, and 3) what further action may be required, the investigating officer(s) will keep such records as may be necessary to assist in the fulfillment of their respective mandates. The primary responsibility of the Department of Social Services Officer will be to attend to the protection needs of the child(ren). The police will be primarily responsible for those issues related to the criminal nature of the alleged offence."

[224] Section 4.1 provides that: "Following the interview with the child, the investigating officer(s) will: 1) Advise the non-offending guardian(s) of the circumstances and that the interview has taken place." The guideline provides that: "If the report of abuse cannot be substantiated, the officer may counsel the child and/or guardian regarding the management of the situation at hand and/or the management of responses to abusive situations."

[225] Section 5.2.1 provides that: "The Officer may refer the child and/or others for any of: . . . 2) a medical assessment report." The guideline provides that: "A medical assessment will be requested whenever there is suspicion of physical abuse or sexual violation of the child."

[226] Section 6.1 provides that: "Given sufficient cause, a Police Officer will initiate the appropriate investigative procedures to gather facts regarding the reported incident(s) of the sexual abuse of a child." The guideline provides: "Upon receipt of a report, or a request for investigative assistance from the Department of Social Services, the police will initiate an investigation, to the extent necessary, to determine: 1) the authenticity of the report, 2) the facts of the reported incident(s), 3) whether or not a crime has been committed, and 4) the culpability of the reported perpetrator. The investigation may include: 1) the initial interview with the child and family, 2) an interview(s) with the alleged perpetrator, and 3) such other contacts as deemed suitable."

[227] Section 6.2 provides that: "ON COMPLETION OF THE INVESTIGATION, THE POLICE SHALL: 1) decide upon the appropriate charge(s), if necessary in consultation with prosecutors, 2) swear the appropriate information(s), 3) notify the appropriate officer of the Department of Social Services of the investigative conclusions, and 4) ensure the attendance of the accused at court." The guideline for 6.2.1 provides that: "With sufficient evidence, the police may, in consultation with crown prosecutors if necessary, lay charges appropriate to the apparent crime." The guideline for s. 6.2.3 provides: "The police will notify the Department of: 1) the conclusion of their investigation, 2) what charges, if any, have been laid, 3) the status of the alleged offender - vis-a-vis his access to the child(ren) in question, and 4) where applicable, the date of the first scheduled appearance of the accused in court."

[228] Section 6.5 sets out procedures to minimize the trauma to a child caused by a court appearance. These include arrangements for the introduction of the child to the prosecutor, an interview, a courtroom tour and possibly a request of the court that the case be placed at end of docket to protect the identity of the witnesses. Nowhere in the Protocol is the use of a screen or the "ungowning" of the judge suggested.

[229] Taken in context, these provisions make it clear that the complaints of children respecting abuse are not to be blindly believed or accepted without question. But on the other hand, they are certainly not to be rejected out of hand because of the age of the child, because the alleged perpetrator is an otherwise upstanding citizen or because the allegations may be difficult to prove in a court of law. The Protocol envisages, and in fact calls for, an independent investigation and assessment of the complaints of children respecting abuse. The term "investigation" implies that a proper and competent police investigation will be conducted to explore the possibility of independent evidence that either supports the allegations that comprise the complaint or that tends to cast doubt upon them. The term "assessment" implies that there will be an objective and independent consideration of the allegations with proper deference being given to them. Appropriate records are to be kept.

[230] In other words, those involved in obtaining or investigating child allegations of abuse are not mere recorders of them. They have the duty (within their respective roles) to investigate and assess those allegations before proceeding with the laying of serious charges. Nor is there any indication in the Protocol to support the contention that a belief in the truth of the allegations must be maintained no matter how the allegations might subsequently unravel or become inconsistent with other credible evidence.

[231] I move on to comment on how Bunko-Ruys and Dueck failed to comply with the Protocol. In her examinations for discovery, Bunko-Ruys says that she had no obligation to even consider the truth of what the [R.] children were disclosing because that was not part of her "role" as a therapist. She says that this is so even though she admits she was told that [M.R. 1] was an accomplished liar before she became his therapist. She says that this is so even though she admits that he lied to her on occasion both before the charges were laid and while the prosecution was underway. She maintains that she had no obligation to advise the court of [M.R. 1]'s propensity to lie even though she appeared as a supporting witness for the children and the Crown, even though she knew that the whole case depended on the credibility of the children, and even though she knew that the liberty of 16 individuals was at stake largely because of her testimony.

[232] As I outlined previously, Bunko-Ruys saw her "role" as a therapist to be restricted to helping the children to express their perceptions. She obviously continued with that view even after all the proceedings were stayed on the basis that the [R.] children were too traumatized to continue with the prosecution of the plaintiffs. When her therapy patient, [K.R.], told her that she had lied at the trial, Bunko-Ruys told her to forget it and that nothing could be done about it. One would think that a professional therapist would have felt some moral obligation, if not a legal one, to advise the authorities, or at least the plaintiffs, of this turn of events.

[233] It is particularly reprehensible that Bunko-Ruys stifled the recantation because it was made to her by one of the children whose allegations of abuse and whose credibility had been supported by her from the time the allegations were made until the charges were stayed. Three individuals still remained convicted because the court had accepted the truth of those allegations to a large degree because of the evidence of Bunko-Ruys herself. Her view in such circumstances that she has no "role" or obligation respecting the truth is beyond comprehension.

[234] In this particular case, Bunko-Ruys became far more involved in its investigation and prosecution than would most therapists in the normal course of events. Had she remained within the confines of her office and carried out her duties as a therapist and a therapist only, her "role" would have remained that of a therapist and her obligations would be confined primarily to the children who were being treated by her. But she left the confines of her office and not only became integrally involved in the police investigation in gathering and recording evidence on which to found charges, but also became integrally involved in the prosecution of those charges. She met regularly with the prosecutors, provided advice to them, attempted to assist them to find expert witnesses, appeared in every court proceeding as an expert witness for the Crown, testified in every court proceeding on behalf of the Crown respecting the children.

[235] By conducting herself in this fashion, Bunko-Ruys expanded her "role" far beyond that of a therapist. In doing so, her professional obligations expanded accordingly and became much more onerous and significant than those associated with the role of a therapist. Another way of putting it is that Bunko-Ruys voluntarily became part of the team that investigated and prosecuted the plaintiffs. She cannot avoid civil liability on the basis that she is a therapist any more than a driver who negligently injures someone can avoid liability on the basis that he is a police officer. Her involvement or "role" in this case is characterized and determined on the basis of what she in fact did throughout. It is not governed by the occupational title or the name of the role that she ascribes to herself. For the reasons I have outlined, Bunko-Ruys cannot rely on the Protocol to exclude her from liability.

[236] The same can be said for Dueck. He was, for all intents and purposes, the sole police officer involved in the investigation of the case. He made the case his own and appeared to keep it pretty much to himself, the Thompsons, Bunko-Ruys and the children. None of his superiors who testified at the trial before me seemed to know much about the case he was investigating or about his involvement in it. Nor did Walker, his assistant who he utilized from time to time when he needed another police officer to assist with arrests and the like, seemed to know much about it. Dueck clearly had an obligation under the Protocol to do a proper independent investigation and assessment. I set out my reasons previously for concluding that he did not do so.

[237] Dueck conducted himself during the first year and a half as if he was a social worker, not a police officer. He recruited Bunko-Ruys and Marilyn Thompson as his assistants and abrogated a significant part of his investigative role to them for over four months. The manner in which he conducted himself and his failure to comply with the provisions of the Protocol that he claims to rely on to justify his actions throughout the case, clearly demonstrate that the Protocol does not exclude him from liability even if it had the status of a statute.

[238] I will discuss the duties and obligations of a prosecutor later in this judgment. I will also relate how Miazga and Hansen failed to perform some of those duties. Both of them dealt with the allegations and testimony of child witnesses in a fashion that was contrary to some of their duties and obligations as prosecutors. Miazga and Hansen attempted to justify how they dealt with the child witnesses on the basis of the Protocol. The Protocol does not supersede the law nor does it purport to do so. The prosecutors cannot rely on the Protocol to exclude them from liability. As in the case of the defendants, they did not comply with it. Even if they had done so, it could not relieve them of their legal obligations.

The Nature of the Criminal Proceedings

[239] At the outset of this judgment, I outlined in general terms the different criminal proceedings that were initiated to prosecute all the allegations of the [R.] children and those of the other foster children that were drawn into the case. A more detailed description of the nature of the criminal proceedings that followed the arrests is required to provide context for the events that followed that have a bearing on this civil case.

[240] The prosecutors were faced with the daunting task of prosecuting 16 persons charged with committing over 70 sexual assaults on eight children and one additional child as the case continued. I have previously outlined the details of those charges. The prosecutors proceeded with the charges against all the individuals in three separate cases. The first case was comprised of the three [R.], [R.] and White individuals. This is the [R.], [R.] and White related proceedings that I referred to earlier in this judgment. The second case was comprised of the 10 adult Klassen - Kvello plaintiffs in the civil action before me and Peter Klassen, the individual who is not a plaintiff in this civil case and who eventually pled guilty to four of the charges. As the second case progressed, some of the existing charges were stayed by the Crown while some new charges were laid. The effect of this was that some of the child complainants were removed from the second case while others were added to it.

[241] The third case was comprised of the two plaintiff young offenders to whom the Young Offenders Act, R.S.C. 1985, c. Y-1, which was in effect at the time, applied.

[242] Much of what occurred during the one and a half years that these criminal proceedings occupied has little relevance to the civil case before me. But all the parties quite properly rely on these events to provide further evidence of the conduct of the defendants from which inferences of fact can be drawn that pertain to the material issues in the civil case before me. The parties disagree as to what those inferences should be.

[243] The [R.], [R.] and White preliminary inquiry commenced on November 21, 1991 and ended on December 2, 1991. No child complainants other than the [R.] children were involved in the case so Miazga alone handled the prosecution for the Crown. Hansen did little more than sit in for a couple of partial days to observe [M.R. 2] and [K.R.] testify. [D.R.] was represented by Roger Kergoat, [H.R.] was represented by Jack Hillson and Donald White was represented by Donald Mullord. At the conclusion of the preliminary inquiry, [R.], [R.] and White were committed to stand trial on the charges brought against them.

[244] The Klassen - Kvello preliminary inquiry commenced on December 2, 1991 and ended on January 16, 1992. Daryl Labach represented the Klassen family. Robert Borden represented the Kvello family. On December 2, 1991, at the outset of the preliminary inquiry, the charges brought against John and Myrna Klassen, Dale and Anita Klassen and Dennis and Diane Kvello on the allegations of S.E.H. and S.L.H. we re stayed by the Crown as were the charges brought against Peter Klassen on the allegations of M.K. Shortly after, on December 10, 1991, the charges brought against Pamela Sharpe and Peter Klassen on the allegations by T.H. were stayed by the Crown. On January 14, 1992, near the end of the preliminary inquiry, the charges brought against John and Myrna Klassen, Dale and Anita Klassen and Dennis and Diane Kvello on the allegations of S.W.H. were stayed by the Crown.

[245] The preliminary inquiry judge discharged Pamela Sharpe and Peter Klassen respecting the other charges brought against them by M.K. He also discharged Marie Klassen respecting the charges brought against her on the allegations of [M.R. 1]. He committed Peter Klassen and the 10 plaintiffs for trial on all the other charges. The net effect of all this was that the outstanding charges that then remained in the Klassen - Kvello case were reduced to those laid on the basis of the allegations of [M.R. 1], [M.R. 2] and [K.R.] with two exceptions. The first was a charge against Pamela Sharpe by T.H. All the charges against the other individuals that were based on T.H.'s allegations had been stayed by the Crown. The second was a charge against Peter Klassen by C.H., a child who had made no allegations against anyone but Peter Klassen.