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Judge George Baynton's historic judgment, page 4

Continued from Page 3

[246] The [R.], [R.] and White trial commenced on October 29, 1992 and ended on December 18, 1992. These three individuals were convicted of some of the charges. Each of [D.R.] and [H.R.] were subsequently sentenced to six years imprisonment. Donald White was subsequently sentenced to three years imprisonment. Each of them appealed their convictions and ultimately the Supreme Court of Canada allowed their appeals, overturned their convictions, entered an acquittal respecting Donald White and directed new trials for [D.R.] and [H.R.]. The Crown did not proceed to retry [D.R.] and [H.R.].

[247] The third case involving the plaintiff young offenders, was never proceeded with. On November 27, 1991, the charges brought against them on the allegations of [K.R.], [M.R. 2], S.L.H. and S.W.H., were stayed by the Crown. In late January or early February 1992, all the remaining charges outstanding against them were stayed by the Crown.

The Role of the Defendants in the Criminal Proceedings

[248] I previously outlined the roles that Bunko-Ruys, Dueck and Miazga played in the cases from their inception until the charges were laid and the arrests were made. I now move on to outline the roles that Bunko-Ruys, Miazga and Hansen played in these cases thereafter. Dueck had little involvement in the prosecution of the cases.

[249] Hansen was assigned to assist Miazga as co-counsel to prosecute the plaintiffs and the other four individuals charged. Both she and Miazga were experienced prosecutors, each having in excess of a decade of prosecution experience. Each was employed in Saskatoon by Saskatchewan Justice. Wilf Tucker and Fred Dehm were their immediate superiors during the time they were involved in the prosecution of the plaintiffs. Miazga and Hansen divided up their workloads so that Miazga could concentrate on the charges involving the [R.] children while Hansen could concentrate on those involving the other foster children.

[250] This meant that both prosecutors jointly prosecuted all those charged. But Miazga was responsible for the preparation and presentation of the [R.] children and the evidence pertaining to the charges brought respecting them, while Hansen was responsible for the preparation and presentation of all other child witnesses and the evidence pertaining to the charges brought respecting them.

[251] Hansen was not involved in any prosecutorial advice that was given to Dueck before the informations were sworn that formalized the charges. Nor did she have any input into the case until after the initial charges were laid and the arrests were made. Her initial task was to interview six child complainants who had already made sexual assault allegations that had lead to charges being laid before Hansen's involvement. She was not responsible for the three [R.] children so she did not interview them or review their videotaped interviews. Her only exposure to their evidence prior to the Klassen - Kvello preliminary inquiry was her observation, for two partial days of testimony, of [M.R. 2] and [K.R.] in the [R.], [R.] and White preliminary inquiry that I referred to previously.

[252] Hansen had received Dueck's occurrence report in the fall of 1991 but she was not aware of the Thompson notes until they became an issue at the preliminary inquiries. She reviewed the videotaped interviews of the children for whom she was responsible. She had some concerns about the manner in which the children had been led by Dueck, their interviewer.

[253] The prosecutors had several scheduled meetings with Social Services workers, foster parents and the therapists for the children. It appears that the focus of the meetings was on the "needs" of the children and on what could be done to minimize the "trauma" of their appearances in court. Miazga took the position at the first preliminary inquiry, one that involved the [R.] children only, that the court should make special arrangements for the children to lessen the trauma they would experience by appearing in the courtroom and testifying. He tendered Bunko-Ruys and had her qualified to give evidence as an expert in the area of identification and treatment of sexually abused children. She testified that the [R.] children were very agitated and fearful to come to court, that they were "quite terrorized", that they had experienced "extreme trauma" and that they "don't want to see their parents".

[254] In the course of her testimony, she said she had obtained "disclosures" from them. But she said it took a year to get them from [M.R. 1] and six months to get them from [K.R.]. She said that the [R.] children were suffering guilt, shame and embarrassment. She said that [M.R. 1] and [M.R. 2] were supervised in class and all three [R.] children were supervised at all other times because of their propensity to touch others and themselves.

[255] The court ordered that the special arrangements sought by Miazga be granted. The first was that the accused individuals would be hidden behind a screen so that the children would never have to look at them. The second was that everyone, including the media, would be excluded from the courtroom while the children were testifying. Only Social Services support personnel for the children, the lawyers directly involved and the accused individuals behind the screen, were allowed to be present. Miazga successfully opposed the application of Robert Borden to sit in as an officer of the court to simply observe the proceedings. Mr. Borden was one of the defence lawyers who would be involved in the Klassen - Kvello preliminary inquiry that would soon follow. The allegations of the [R.] children and, to a lesser extent, the other six children involved, would be an issue in the Klassen - Kvello preliminary inquiry.

[256] The third concession was that the judges would doff their gowns and wear suits. The fourth was that the children would have access to the courtroom via the judges' hallway from a room in the judges' chambers. This was done so that the children could avoid passing through the public hallway where they might see the individuals they had alleged as sexually assaulting them. Miazga also suggested at one point that the lawyers remain seated when asking questions of the children and that the children be removed when the lawyers objected, argued or made submissions. This was acceded to in part. The transcripts set out the comments made by the preliminary inquiry judge which speak for themselves. It is sufficient to observe that he repeatedly commended the children for their courage in testifying in court, commended Marilyn Thompson for the tremendous job she was doing with the children and acceded to just about every request and whim of the children. The unfortunate consequence of these types of remarks was that it impaired the perception of the impartiality of the court.

[257] Right from the start, the allegations of the [R.] children did not fare well, even during their examinations-in-chief. They fared even more poorly in the face of gentle cross-examination. This was likely the first time anyone had called into question what they were saying. The poor performance of the [R.] children cannot be attributed to intimidating cross-examination. Throughout all three proceedings, all defence counsel involved were polite, courteous and considerate toward the children. They did not harass them or take advantage of them. The trial judge and the judge conducting the preliminary inquiries complemented defence counsel in this respect. Nor can the poor performance of the children be attributed to fear, trauma or exhaustion as the child care wo rkers and the prosecutors would have the court and the public believe. It should have been obvious that the poor performance of the [R.] children was caused primarily by their inability to accurately relate the fabrications they had previously made and their inability to weave new fabrications consistent with those they had previously made.

[258] I previously outlined my reasons for concluding that the [R.] children were not traumatized and they need not be repeated. But I did not outline my observations about all the glaring inconsistencies I noted in what the [R.] children said at various times about the abuse they supposedly suffered and about who abused them. These inconsistencies can readily be determined from a careful perusal of various sources, including what they said to Marilyn Thompson as set out in her detailed notes of their initial "disclosures", what they said in their videotaped interviews, what they said to Dr. Yelland and what they said in their respective examinations-in-chief and crossexaminations at the three court proceedings. These inconsistencies pertained not only to what one child said compared to another, but also to what one child said on one occasion compared to what he or she said on other occasions. These significant inconsistencies not only pertained to the particulars of what was allegedly done to them, but to the identity of those who allegedly did these things to them.

[259] Hansen, at the request of Miazga, sat in on the [R.], [R.] and White preliminary inquiry for parts of two days to listen to some of the evidence given by [K.R.] and [M.R. 2]. Hansen relied on this brief and limited exposure to the [R.] children to later tell her superiors that she "believed the children".

The Use of "Child Experts"

[260] Miazga made extensive use in the criminal proceedings of what I will term as "child experts". The experts called by Miazga in the criminal proceedings in this case could also be referred to as child "oath helpers". I will outline later the apparent rationale of Miazga in adducing this "expert" evidence. But before doing so, I need to relate the gist of the type of expert evidence that was given and comment on the lack of objectivity of those witnesses in matters involving child abuse. I begin with the medical evidence.

[261] Dr. Yelland was tendered by Miazga at the [R.], [R.] and White preliminary inquiry as an expert witness to give an opinion on the possible causes of physical injuries. Miazga aggressively led Dr. Yelland in his examination-in-chief to get him to say in effect that notwithstanding the clear findings set out in his 1990 and 1991 medical reports to the contrary, as I detailed earlier on in this judgment, there was really no more evidence of sexual and physical abuse in 1991 than there was in 1990. The compliant explanation for this rather astounding conclusion by the doctor was twofold. First, after completing the 1990 reports, he took a course that made him more aware of what to look for as indications of abuse. Second, he had a better "history of abuse" from the children and the foster mother when he did the 1991 examinations than he had when he did the 1990 examinations.

[262] Dr. Yelland acknowledged that he did a complete physical examination of the children in 1990 with the sole and specific objective of detecting child abuse, the same thing that he did in 1991. He testified that he had gotten 200-400 referrals from Social Services over a four-year period prior to November 1991. In the following preliminary inquiry, he testified that he knew of only Dr. McKenna besides himself that did these physical examinations for Social Services. I have difficulty accepting that, with all his experience, he in effect botched his 1990 examinations. If I reject this conclusion, then I am left with the conclusion that he bases his medical reports more on the subjective "history" with which he is provided than on his own professional and objective observations gleaned from his physical examination of the children's anatomy. [263] His evidence at the civil trial confirms my second conclusion. He outlined the graphic details of the bizarre and ritualistic abuse alleged to him by the [R.] children at the time he conducted his 1991 examinations. These allegations included the incredible and distasteful acts that I have described before and that I have no desire to repeat. These allegations were of a totally different nature from what he was told when he examined the children in 1990. At that time, the girls denied any abuse and the abuse related by [M.R. 1] was that he had been sodomized by his natural father. There were no allegations of being cut with knives or being burned. Dr. Yelland concluded that all these allegations were true based on the Thompson histories and the detailed allegations of the children. [264] Dr. Yelland located the scars on the children that they pointed to as being caused by the abuse. He said that his findings were compatible with ritualistic abuse even though he admits that he has no experience with ritualistic abuse. He says however that he was extensively involved with Social Services in developing the Saskatoon Sexual Abuse of Children Protocol. He confirmed his previous testimony that Social Services send children to Dr. Anne McKenna and himself respecting sexual abuse allegations. He said that his role is to try to document physical evidence compatible with the history of abuse provided to him.

[265] He testified that he tries to objectively assess the allegations of abuse yet he admits that it is not his role to interview the children. He also said that it took a lot of time to get the degree of information he got from [M.R. 1] and that it is not unusual when interviewing children to spend the amount of time he spent interviewing the [R.] children. The little confidence I had in his objectivity and professionalism left me when he unabashedly stated that "he believes the kids, absolutely" and that he believes the ritualistic abuse in the Klassen home because "the children's evidence is clear". The fact that he could be so certain of the Klassens' guilt or involvement in such distasteful acts, solely on the basis that their names were given to him by a child who also concurrently named many others as abusers, is an example of an irrational belief that I describe later in this judgment.

[266] Dr. Yelland did acknowledge that the damaged hymen he described was consistent with having been caused by [M.R. 1] having sex with his sister. It is strange that he would attribute all the relatively minor scars on the children to the abuse described by them without considering if there were natural causes or other causal events that might be recorded in the medical history of the children. This is particularly so when he knew his medical report and opinion respecting the physical evidence of scars would be relied upon by Social Services and likely by the Crown as independent proof of heinous and deliberate physical abuse.

[267] Had Dr. Yelland reviewed the medical history of the children, he would have discovered at least two events that may well have altered his opinion. First he would have known of the record of [K.R.]'s hospitalization for serious injuries she received when she was pushed by [M.R. 1] and run over by a car, an event that obviously left her with scars. Second, he would have known of the record of Dr. Anne McKenna's report in which she examined [M.R. 2] for potential sexual abuse when Anita Klassen contacted Social Services about the concern she had when she found blood on [M.R. 2]'s panties after a visit with her natural father. Dr. Yelland cannot be faulted for noting and describing any scars that were borne by the children or even in proffering an opinion as to what type of injury might have caused each of he scars. But the question as to how they got there or who, if anyone, caused the injuries represented by the scars, was beyond his knowledge and his capacity to determine.

[268] I take no delight in making adverse comments about Dr. Yelland's objectivity. But I do not apologize for doing so in view of the fact that innocent individuals were charged, prosecuted and in some instances convicted, on the basis, in part, that the incredible evidence of the [R.] children was corroborated by independent medical evidence. Dr. Yelland either knew or should have known that his written reports would likely be utilized by the police and by the prosecution in laying and prosecuting criminal charges. As a medical doctor, he has a professional responsibility to ensure that his reports represent an accurate account of his professional findings and conclusions based on his physical examinations.

[269] Once he contaminates his professional findings by basing them in part on the allegations of the child he examines, any value of the report as corroboration of the child's allegations is lost because the report is no longer evidence that is independent of the child's allegations. A medical doctor has no more expertise than a lay person in determining the veracity of a child's allegations by simply listening to the recounting of them. I acknowledge that this would not be the case if the doctor, for example, had some special expertise in child psychology and utilized the disciplines of that specialty to test or question the child in an attempt to verify the allegations. The examinations conducted by Dr. Yelland, however, were physical examinations, not psychological examinations.

[270] The unobjective attitude displayed by Dr. Yelland respecting sexual abuse allegations is not unlike that of many of the child care workers who gave extensive evidence in the criminal proceedings. Many of the individuals who testified in those proceedings had a financial interest in referrals from Social Services. Numerous witnesses testified about the floodgates opening in the late 1980s in the number of child sexual assaults that began to be reported. As is demonstrated by the evidence in this case, this has created a growth industry for professional child care workers, professional child therapists and medical care professionals. This is understandable and likely beneficial, but if these professionals are to effectively serve the interests of the children entrusted to them, they must conduct themselves as professionals with a level of objectivity and independence that is apparent to anyone who is asked to rely on their opinions and reports. If they fail to do so, courts and other institutions or agencies that routinely receive these opinions and reports will lose confidence in them and will not rely upon them.

[271] I have related the evidence of Dr. Yelland respecting his medical reports because these reports were relied upon by the courts as providing some independent support for the allegations of the [R.] children. The evidence pertaining to the manner in which this medical evidence was presented to the court is another example of how zealously Miazga prosecuted the charges based on the incredible allegations of the [R.] children. The manner in which he presented the medical information bordered on an attempt to distort the inferences that would otherwise be drawn from that evidence and to mask the difficulties that it posed to the successful prosecution of the plaintiffs. In my respectful view, this is an indication of malice on his part.

[272] Miazga called Bunko-Ruys in three of the proceedings and Marilyn Thompson in two of the proceedings, as witnesses to satisfy the court that the [R.] children were extremely dysfunctional and sexually abused children who should be expected to have inconsistencies in their perceptions and in their allegations and testimony. These two witnesses and all the other child therapists of the various child complainants in effect became oath helpers for the children to prop up an otherwise hopeless case. The extent to which Miazga used such witnesses as oath helpers is again, in my respectful view, an indication of malice on his part. This is particularly so in a case involving so many individuals and such incredible allegations presented by inconsistent testimony. Miazga knew the disastrous consequences that would accrue to the plaintiff families if the allegations of the children were false. Even if his view of the role of a prosecutor was to record all allegations and let the courts decide, he should not have pushed so aggressively to mask evidence that would have helped the court in making an accurate assessment of the credibility of the allegations.

The Case Starts to Crumble

[273] The Crown's case began to crumble during the first preliminary inquiry when the lies of the [R.] children began to catch up with them. A particularly embarrassing fabrication was [M.R. 1]'s story at the [R.], [R.] and White preliminary inquiry about making and keeping notes of abuse. The proceedings were adjourned so that [M.R. 1] could produce his notes. The next day Miazga had to advi se the court that [M.R. 1] was lying about the notes.

[274] I appreciate the fact that Miazga was obviously shaken by [M.R. 1] lying to him and to the court about making notes. The [R.], [R.] and White case was Miazga's strongest case and the credibility of his star witness was in serious jeopardy. In fairness to Miazga, he did on November 28, 1991, verbalize his concerns to the preliminary inquiry judge who, in my respectful view, once again jeopardized the perception of the impartiality of the court by appearing to encourage the Crown to proceed. He implied that he was not concerned about the fact [M.R. 1] would lie. Miazga and Hansen however were so concerned about the utility in continuing with any of the proceedings that on November 29, 1991 they sought advice from their superiors who were attending a prosecutors' conference in Moose Jaw.

[275] They engaged in a telephone conference call with Wilf Tucker, Ellen Gunn, Richard Quinney and Fred Dehm and expressed their concerns about the case including [M.R. 1]'s fabrication about the notes. When they asked what they should do, Hansen was asked by Ellen Gunn if she honestly believed the children and what opinion she held regarding them. Hansen responded that she honestly believed that what she saw and heard in court supported their allegations. The prosecutors were advised to proceed. They got the committals from the judge that they sought. That same day they began the Klassen - Kvello preliminary inquiry.

[276] The prosecutors, despite Miazga's aggressive pursuit of the case, were once again shaken by the continued deterioration of the testimony of the [R.] children. The testimony of [M.R. 2] and [K.R.] was becoming embarrassing because of the wholesale inconsistencies in their evidence. Another conference call was put through to their superiors in Regina on January 7, 1992. This time they spoke to Richard Quinney, now deceased, and Mr. Brown. Although there is a dearth of reliable evidence as to what was said during the conference call, the outcome was that the prosecutors should proceed and let the preliminary inquiry judge decide. I am satisfied from the comments made by the prosecutors in other conference calls, and in correspondence, that they emphasized the traumatization of the children rather than their lack of credibility. In all cases, the prosecutors were told that if they believed the children, they should proceed on. Miazga continued on with his prosecution with renewed vigour. I will comment in more detail on the conference calls in connection with my comments on the submissions of the defendants.

[277] Miazga and Hansen conducted the Klassen - Kvello preliminary inquiry in the same manner as the [R.], [R.] and White preliminary inquiry had been conducted. The main difference were the stays entered by the Crown. Even before the Klassen - Kvello preliminary inquiry began, there was a flurry of stays entered respecting children in whom Hansen had lost confidence. Stays on other children in whom she had lost confidence followed later on during the preliminary inquiry as it became evident that these child witnesses were unreliable. Miazga forged on with the [R.] children but their evidence was even more incredible than it had been at the previous preliminary inquiry. Again, the prosecutors got most of the committals that they sought. I provided details previously.

[278] Despite the preliminary inquiry committals, Hansen and Miazga were having second thoughts about proceeding against the two plaintiff "young offenders".

Their trial was set to begin on February 3, 1992. The Crown eventually entered stays on all the charges against them. Miazga's January 21, 1992 memo to the file and Hansen's January 27, 1992 memo to the file, detail how unreliable all their remaining child complainants were as witnesses. The allegations of S.W.H. and [M.R. 2] and [K.R.] against the young offenders had been materially revised then recanted. The memos characterize the evidence of [K.R.] as "weak and sometimes incredible" and that of [M.R. 2] as having repeatedly "recanted on her testimony" in a fashion that ruled out a mistake or misunderstanding. The memos indicate the views of the prosecutors that the likelihood of convictions of the young offenders was low. Despite this dismal view of their primary witnesses, Miazga and Hansen continued on with the criminal proceedings respecting the adults.

[279] The Crown wanted to proceed first with the [R.], [R.] and White trial and then with the Klassen - Kvello trial. The plaintiffs and their lawyers began to get ready for trial. The three Klassen families in Red Deer made arrangements to move to Saskatoon at the end of 1992 and to put their children in the Saskatoon school system.

[280] Miazga prepared for the [R.] trial. Hansen helped him to locate more expert witnesses. In general terms, with a few exceptions, the same group of witnesses appeared at the trial as had appeared on the two preliminary inquiries. As the ritual and satanic abuse allegations of the children had come out in cross-examination and been examined in detail at the preliminary inquiries, Miazga called a psychologist, Dr. Santa Barbara, to try and explain how the children could be credible and yet make such untrue allegations. The defence called Michael Elterman, another psychologist. Again, the [R.] children's testimony was incredible, full of inconsistencies and contradictions. Again, Miazga relied on the sexualization of the [R.] children to establish that they had been sexually abused. By this time, there was little left of their evidence that had not been recanted or contradicted.

[281] Based on the testimony I heard at the civil trial, the conviction of [R.], [R.] and White came as quite a surprise to all those involved, including Miazga and Hansen. It strengthened the resolve of the Crown to proceed with the Klassen - Kvello trial. But the [R.], [R.] and White trial judge had made a plea in her judgment that the children not be put through yet another criminal proceeding. The defendants seized on this, and the weakness of the Crown's case, as reasons why the Crown should stay all the remaining charges against the plaintiffs and against Peter Klassen. Miazga and Hansen refused this proposal but were open to other suggestions which would involve some guilty pleas. Some preliminary plea bargain discussions began between Miazga and Hansen and Jay Watson, counsel for Peter and Marie Klassen. I will outline the facts pertaining to this later in my analysis of the second element of the malicious prosecution cause of action. The plaintiffs refused to plead guilty to any charges in exchange for stays by the Crown of the remaining charges against them and were prepared to go to trial.

[282] The potential plea bargain I referred to was eventually entered into by Miazga, Hansen and Jay Watson. It provided that Jay Watson's client, Peter Klassen, would plead guilty to the one charge respecting C.H. and one charge respecting each of the three [R.] children. All other charges against him would be stayed. He pled guilty on February 2, 1993 and was sentenced on February 8, 1993 to four years in prison. All remaining charges against the plaintiffs were stayed on February 10, 1993 by the Crown. The plea bargain and the stays were reluctantly approved by the prosecutors' superiors in Regina. I will deal with this aspect of the case later. I have already outlined the appeals that were taken and the results of those appeals.

[283] The plaintiffs then began their malicious prosecution action in 1994. It finally came on for trial on September 8, 2003. The trial concluded on November 13, 2003.

The Subjective Beliefs of the Defendants Respecting the [R.] Children

[284] The respective subjective beliefs of the defendants in the guilt of the plaintiffs respecting the criminal charges brought against them by the [R.] children are of significance to the outcome of this civil action. Their testimony that they "believed the children", that they "believed the substance of the complaints of the children" and that they "believed that the children believed what they were saying", was sorely tested and tried throughout the trial. I previously set out some of the evidence upon which I have relied in attempting to determine the state of the subjective beliefs of the defendants at differing periods of time. I will relate some more of that evidence.

[285] Miazga testified that he had Dueck's occurrence report to review in May or June 1991. It included the allegations of mutilation and killing of animals and babies. He met with Dueck and talked about the case several times. He has a note that they met on May 9, 1991 and again in June. Dueck had asked him to look at the file and to advise him what could be or should be done based on the nature of the evidence. Miazga says that his memory is not clear of many of the details of his initial involvement in the case. This is surprising in view of his own admissions that he had never had another case like it that involved such bizarre allegations and so many alleged perpetrators.

[286] Miazga did not speak to the children before the charges were laid nor did he view the videotapes until sometime in September 1991. Again this is surprising and somewhat appalling in view of the fact that the videotapes of the children's evidence were equivalent to their witness statements. Surely in view of the incredible allegations and the nature of the case, he would have wanted to know the details of what the children had previously claimed had been done to them.

[287] Later on in his testimony he said that as a prosecutor, he relied primarily on what witnesses told him rather than on what they had said previously. But again this is a troubling statement in a case that depends almost solely on the credibility of the witnesses. Surely he would have wanted to know what the children had said previously so that he would be aware of any glaring inconsistencies in their allegations that might be fatal to his case once that information got into the hands of the defence. Although he did not say that he relied on Dueck to take care of these potential problems for him, it would be irresponsible for him to rely on Dueck for such an assessment because Dueck had come to him for advice about the strength of his case.

[288] Miazga testified that he spoke to Bunko-Ruys before the charges were laid and that he likely spoke to the social workers involved beforehand as well. He knew Bunko-Ruys personally. As well, she had been a therapist for a child (or children) on a previous case that he had prosecuted. He and she were both members of the Saskatoon Child Sexual Abuse Council, the council responsible for the Protocol I described previously. He said he may have mentioned the case to the child sexual assault group because it was an unusual case. Although he has no recall of doing so, he may have suggested that Dueck get further medical reports on the [R.] children. This is likely what initiated the Dr. Yelland June 1991 medical reports I referred to previously.

[289] The affidavits sworn by Dueck to obtain the warrants as suggested by Miazga to search the birth parents' home for blood containers and photos, set out in effect that he believed the allegations of the children concerning them. But the list of criminal offences alleged to have been committed included only bestiality and incest that were not some form of sexual assault as were the other charges. He said in response to cross-examination by Robert Borden that by the time he talked to Hinz (a date preceding this affidavit) he no longer believed the bizarre aspects of the children's allegations. Both Dueck and Miazga said that although they did not believe these bizarre aspects of the allegations, they believed that the children believed them.

[290] The testimony of Dueck and Miazga about their respective belief or lack of belief in these bizarre allegations was at best confusing and more likely was misleading. The evidence demonstrates that Dueck's statements about his belief at critical stages in his investigation is inconsistent and contradictory. Miazga attributed his inability to provide details of his belief at critical stages in his involvement in the case to lack of recollection of events that occurred over a decade ago. I can understand a lack of recollection of mundane events that occurred years before. But I do not accept that he would have difficulty remembering his perceptions or beliefs respecting such a bizarre issue that was an integral aspect of a bizarre and unique case that occupied so many months of his time.

[291] In any event, Miazga said that by the time he had focused on what charges should be laid, he had decided not to pursue any "special charges" other than the sexual abuse charges. He said he has no reason to dispute what Dueck says in his occurrence report. The ritualistic and satanic allegations of the [R.] children comprise likely half of that detailed report. Miazga is consistent in his evidence that he told Dueck that "if he believed the children, he could swear the informations".

[292] Again this is surprising because, as is set out later, this is not the proper test to justify the laying of serious criminal charges for two reasons. First, Dueck had to have a subjective belief that the persons he was going to charge had committed those offences. Second, his subjective belief had to be founded on reasonable and probable grounds that existed at the time he decided to charge those persons. Although Miazga's advice to Dueck partially identifies the first requirement of the test, there is no evidence from any source that either Dueck or himself ever put their minds to the second requirement of the test.

[293] After the charges were laid and the plaintiffs were arrested, Miazga had little involvement in the case until fall. He was away from his office most of August 1991. In September and October he started to interview the [R.] children and he looked at their videotaped interviews that had been conducted by Dueck and Bunko-Ruys. Miazga admitted that he knew that the children were not telling the truth at times and he said he would admonish them to do so. He never said that he ever challenged or even seriously questioned the children's allegations, presumably because he was of the view that doing so would be inconsistent with what he understood to be the Protocol guidelines.

[294] He said that he reviewed the allegations of the children to justify the charges that were laid against each of the plaintiffs. He in effect went through the same exercise as did Dueck. That was simply to see if each of the respective plaintiffs charged with the alleged acts of sexual assault given by rote by the children had been named as the perpetrator by at least one of the children. This does not constitute an investigation or an assessment. All it does is categorize the allegations. It does not amount to an assessment of their feasibility or credibility.

[295] It is essential to distinguish between the abuse allegations made by the [R.] children and those made by the other children. In general terms, the allegations of the other children pertain primarily to isolated fondling incidents that were committed by one or two individuals. The allegations of the [R.] children pertain to a multitude of bizarre, serious and disgusting incidents, including a memorized rote incident, that were repeatedly committed by a large number of individuals in a random fashion at various places. The truth of the former kinds of allegations is within the realm of probability. The truth of the latter kinds of allegations is not even within the realm of possibility. [296] The rote incident allegation to which I refer appears literally hundreds of times in the Thompson notes, the videotaped "disclosures", and in the interviews and the transcripts of the various court proceedings. If [M.R. 1] was naming a female perpetrator, he would say: "she put her finger in my bum and touched my penis and I had to put my penis in her vagina and bum". Often he would add: "and I had to suck her boobs". If he was naming a male perpetrator, he would say: "he put his penis in my bum and touched my penis and I had to suck his penis and put my penis in his bum". [M.R. 2] and [K.R.] made the same type of rote allegation. If they were naming a male as the perpetrator, they would say: "he put his penis in my vagina and bum and I had to put my finger in his bum and suck his penis". If they were naming a female perpetrator, they would say: "she put her finger in my vagina and bum and I had to put my finger in her vagina and bum". Often they would add: "and I had to suck her boobs".

[297] The [R.] children said that these incidents took place time and time again in various rooms of the various homes occupied by the plaintiff Klassen and Kvello families. Although they did not include things like the killing of babies as was alleged to have occurred in the birth home, they did include cutting and burning the children and drinking blood.

Analysis

[298] Having related the findings of fact that I made from the evidence and some of the inferences of fact that I drew from those facts, I move on to apply the law to these facts and to outline some additional inferences of fact that I have drawn in connection with the four elements of malicious prosecution. I have reproduced only those parts of my previous non-suit judgment that are necessary to give some context to the legal principles pertaining to a malicious prosecution action. A more detailed analysis of the law is set out in the non-suit judgment.

The Law Respecting the Tort of Malicious Prosecution

1. The Classic Elements and their Definition (Nelles)

[299] The elements of this cause of action were clearly identified several years ago in Nelles v. Ontario, [1989] 2 S.C.R. 170 at 193 as follows:

  • a) the proceedings must have been initiated by the defendant;
  • b) the proceedings must have terminated in favour of the plaintiff;
  • c) the absence of reasonable and probable cause;
  • d) malice, or a primary purpose other than that of carrying the law into effect.

[300] The court observed at p. 193 that the first two elements are straightforward and largely speak for themselves but went on to comment on the last two elements. It stated that the third element contains both a subjective element (an actual belief) and an objective element (a belief that is reasonable in the circumstances). The court adopted the definition of reasonable and probable cause set out by Hawkins J. in Hicks v. Faulkner (1878), 8 Q.B.D. 167 at 171:

. . . "an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed". . . .

[301] The court defined at p. 193 the fourth element as follows: The required element of malice is for all intents, the equivalent of "improper purpose". It has according to Fleming, a "wider meaning than spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage" (Fleming, op. cit., at p. 609). . . .

[302] As observed by the court at p. 199, "malicious prosecution requires proof of an improper purpose or motive , a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve". It is more than "errors in judgment or discretion or even professional negligence".

[303] At p. 194, the court commented on the difficult task facing a plaintiff in a malicious prosecution action:

By way of summary then, a plaintiff bringing a claim for malicious prosecution has no easy task. Not only does the plaintiff have the notoriously difficult task of establishing a negative, that is the absence of reasonable and probable cause, but he is held to a very high standard of proof to avoid a non-suit or directed verdict (see Fleming, op. cit., at p. 606, and Mitchell v. John Heine and Son Ltd. (1938), 38 S.R. (N.S.W.) 466, at pp. 469-71). Professor Fleming has gone so far as to conclude that there are built-in devices particular to the tort of malicious prosecution to dissuade civil suits (at p. 606):

The disfavour with which the law has traditionally viewed the action for malicious prosecution is most clearly revealed by the hedging devices with which it has been surrounded in order to deter this kind of litigation and protect private citizens who discharge their public duty of prosecuting those reasonably suspected of crime.

[304] The role of a Crown prosecutor was described years ago by the Supreme Court of Canada in Boucher v. R., [1955] S.C.R. 16 at 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

[305] This definition has been referred to with approval by the Supreme Court in each of the Nelles and Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, 2001 SCC 66 decisions.

2. Further Clarification (Proulx)

[306] The Supreme Court of Canada adopted the Nelles elements and policy considerations in Proulx. The court held that the circumstances of the case were exceptional and upheld the damage award granted by the trial judge in the malicious prosecution action. The court again focussed on the third and fourth elements of the cause of action and made some additional comments and findings that further clarify the nature of such actions. They are summarized as follows:

1. The court must determine in its opinion, whether the Crown had sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt. Only then would reasonable and probable cause exist to permit criminal proceedings to be initiated. A lower threshold for initiating prosecutions would be incompatible with the prosecutor's role as a public officer charged with ensuring that justice is respected and pursued. (para. 31)

2. In certain cases involving the credibility of a key witness, the court may consider why the prosecutor did not question or scrutinize the credibility of that wi tness. (para. 43)

3. A prosecutor cannot bootstrap his own position on the basis of preliminary inquiry committals or flawed court decisions that were swept away by an appeal acquittal. This is so because these events post-dated the prosecutor's decision and were decisions governed by different considerations. (para. 32)

4. The fact that a prosecutor may have been persuaded of the accused's guilt is not the sole issue. The question for him when he laid the charge was whether he could prove it. (para. 18)

5. A prosecutor cannot rely on consultations that he had with colleagues and superiors if he knew more about the case than they did. As the holder of an important office under the Criminal Code, the decision to lay the charge was his and his alone: R. v. Campbell, [1999] 1 S.C.R. 565. (para. 33)

6. A suit for malicious prosecution must be based on more than recklessness or gross negligence. It requires evidence that reveals a willful and intentional effort on the Crown's part to abuse or distort

its proper role within the criminal justice system. The key to a malicious prosecution action is malice, but the concept of malice in this context includes prosecutorial conduct that is fueled by an "improper purpose", a purpose that is "inconsistent with the status of 'minister of justice'". (para. 35)

7. There may be various factors that are indicators of an improper purpose underlying the Crown's decision to initiate proceedings against the accused. One may be no more significant than another. In the final analysis, it is the totality of all the circumstances that are to be considered. (para. 37)

8. The lack of reasonable and probable cause may be an indicator of malice in exceptional circumstances, where in the opinion of the court, no prosecutor acting in good faith would have proceeded to trial on a serious charge with such a substandard and incomplete proof. (para. 38)

9. The court must determine the issue on a balance of probabilities. The question for the court is what motivated the prosecutor. If it was a simple lapse of judgment, the plaintiff has no cause of action. But if the prosecutor allowed his office to be used in aid of another cause, this is a perversion of powers and an abuse of prosecutorial power. This constitutes malice in law. It is also malice if the prosecutor decided to go after the accused to secure a conviction at all costs and conducted the case with not only "tunnel vision", but "tainted tunnel vision". In either case, there would be a flagrant disregard for the rights of the accused fueled by motives that were improper. (para. 44)

10. In highly exceptional cases, unless Nelles is to be read as staking out a remedy that is available only in theory and not in practice, the accused is entitled to hold the prosecutor accountable in the civil action brought following the abusive prosecution. (para. 44)

3. Recent Lower Court Decisions

[307] Recent lower court decisions have elaborated on these third and fourth elements of malicious prosecution. They are particularly helpful in that they are examples of how the courts have applied the law to the facts of different kinds of cases. I have summarized the findings in many of them because they have precedential application to many of the issues in the case before me.

[308] In Klein v. Seiferling, [1999] 10 W.W.R. 554 (Sask. Q.B.), my colleague Klebuc J. dealt with a case that involved claims of malicious prosecution and false imprisonment. He reviewed many of the authorities that I have referred to in the case before me. Many of the factual issues he was required to deal with were of a similar nature to those alleged in the case before me. He relied on the comments of Cory J. in R. v. Storrey (1990), 75 C.R. (3d) 1 at 8-9 (S.C.C.), respecting what constitutes reasonable and probable grounds in connection with an arrest empowered by s. 495 of the Criminal Code. I realize that these comments focus on the right to arrest as opposed to a malicious prosecution action, but they do give some insight into the term "reasonable and probable": (p. 566)

. . . In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence. . . .

. . .

There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist, that is to say, a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest . . .

[Emphasis added]

The Hicks v. Faulkner objective test approved in Nelles, was applied by Klebuc J. and was quoted with approval in Dix v. Canada (Attorney General), 2002 ABQB 580, [2003] 1 W.W.R. 436 at para. 354 (Alta. Q.B.).

[309] Klebuc J. allowed the malicious prosecution and false imprisonment actions against the police officers. He held that they had no reasonable and probable grounds because the circumstances would have alerted a prudent person to proceed cautiously, to make further inquiries, to question the credibility of the witnesses' statements and to try to get some corroboration. Numerous inconsistencies in the evidence of different witnesses were warning signs that would have lead a prudent person to question the credibility of the evidence. Information subsequently received would have caused a reasonable person to reassess the information that was previously relied upon by the police officers.

[310] Instead, the officers went into a state of denial. Their desire for recognition by turning a suicide into a high profile murder, impaired their skills and judgment. Their haste, lack of concern for the frailty and inconsistency of the evidence and disregard for information inconsistent with their objective, were illustrative of their state of mind. They acted on flimsy and inadequate grounds and whatever belief they held was not objectively reasonable.

[311] He also held that the police officers had malice. The manner in which they conducted their investigation constituted more than mere negligence or poor judgment. It was so reckless and devoid of reason and respect for the rights and security of the plaintiffs and the administration of justice that it was directly and inferentially malicious. They withheld vital information from the prosecutor regarding the limitations of a witness which they knew might have a bearing on his advice and the manner in which the Attorney General would deal with the plaintiffs. They deliberately ignored the quantity and quality of the evidence. Their primary motivation for arresting the plaintiffs, seeking a warrant for the arrest of another plaintiff and subsequently participating in the prosecution of them, was so inconsistent with their legal responsibilities and the administration of justice, that it alone constituted malice.

[312] He dismissed the actions against the Attorney General, holding that the police officers misrepresented to the prosecutor that a material witness was a person with no material limitations or difficulties and thereby avoided any discussion of whether his information should be questioned. In like manner the inconsistencies and conflicts in the information gleaned from other witnesses were never fully disclosed or discussed with the prosecutor. Thus the police officers knew that the opinion of the prosecutor was not an informed one based on the facts.

[313] Ritter J. in Dix v. Canada (Attorney General), supra, determined that the police and prosecutors lacked reasonable and probable grounds. He stated at para. 356:

It is also not sufficient for police to simply say they received information and relied upon it. The police have a duty to explore the reliability of that information ( Dumbell v. Roberts, [1944] 1 All E.R. 326 (Eng. C.A.); Campbell v. Hudyma (1985), 66 A.R. 222 (C.A.)).

He also observed at para. 357:

In addition, a police officer must take into account all the information available. A police officer is only entitled to disregard that which there is good reason to believe is not reliable. (Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474 (S.C.C.); R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), appeal discontinued [1997] S.C.C.A. No. 571 (S.C.C.)).

At para. 368 he states:

By these words [Proulx, para. 34], the Supreme Court has made it clear that the objective element of the test involves consideration by the Court of the evidence the police or prosecutor considered or did not consider, and its evidentiary value at trial. . . .

At para. 376 he states:

Police are not able simply to pay attention to only that evidence which might serve to incriminate and to disregard that which might serve to exonerate (Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474). . . .

[314] Ritter J. also determined that certain of the police and prosecutor defendants had malice. He considered the issue of whether an absence of reasonable and probable cause by itself may lead to an inference of malice, as is the conclusion reached in Oniel v. Metropolitan Toronto Police Force (2001), 195 D.L.R. (4th) 59 at para. 49 (Ont. C.A.), leave to appeal dismissed without reasons, [2001] S.C.C.A. No. 121, (2001), 158 O.A.C. 199 (S.C.C.). He states at para. 527:

I am fortified in my conclusion of the existence of malice on the further basis that prosecuting in the face of, or disregarding evidence which suggests that the Plaintiff is probably not guilty of the offence, can, even if not to a level sufficient on its own to raise an inference under Oniel, can form one element or factor which can be considered as going to proof of malice under the fourth part of the test set out in Nelles and Proulx. . . .

[315] This is the interpretation placed on this aspect of the Dix v. Canada (Attorney General) decision by Paisley J. in Gabadon v. Toronto Police Services Board (2003), 16 C.C.L.T. (3d) 225 (Ont. Sup. Ct. J.). In my view, proceeding with a prosecution in a case where there is no reasonable and probable cause may not of itself constitute malice, but it is certainly evidence from which an inference of malice can be drawn in an appropriate case. See Lacombe et al. v. André et al. (2003), 11 C.R. (6th) 92 at para. 86 (Que. C.A.). There is nothing in Nelles or Proulx to suggest otherwise. Malice can usually be established only by inference from the other facts and circumstances of the case, including the conduct of the prosecutor. Proceeding without reasonable and probable cause is contrary to the law and demands a credible explanation, failing which the inference of malice can be drawn.

[316] The court observes in Lacombe et al. v. André et al., supra, at paras. 52-54, that in cases involving serious charges where the complainant's credibility is the very crux of the decision-making process of whether to lay charges, an investigation must take into consideration all the information available. The court held that a more thorough investigation would have made it possible to cast serious doubt on the authenticity of the charges and would have allowed the prosecutor to make a more informed decision.

[317] In cases involving defendants other than police officers and prosecutors, the law is not clear as to what circumstances must be established before these other classes of defendants can be found to "initiate proceedings" within the meaning of the first element of malicious prosecution. Successful malicious prosecution actions have been brought against persons other than police officers or prosecutors. In Romegialli v. Marceau (1963), 42 D.L.R. (2d) 481 (Ont. C.A.), the court stated at p. 482:

. . . The gist of an action for damages for malicious prosecution is that it is an abuse of the process of the Court by wrongfully setting the law in motion on a criminal charge. . . .

[318] Walker J. in Berman v. Jenson (1989), 77 Sask. R. 161 at 163 (Q.B.) stated:

. . . The defendant must have been "actively instrumental" in setting the law in motion. Simply giving a candid account, however incriminating, to the police is not the equivalent of launching a prosecution. The critical decision to prosecute is not that of the private person. . . .

[319] Failing to give a frank and candid account of events to police or participating in or interfering with the investigation and prosecution, may attract liability. Hinde v. Skibinski (1994), 21 C.C.L.T. (2d) 314 (Ont. Gen. Div.). A person may "institute proceedings" by giving information to the police which the person knew or ought to have known was false, misleading or incomplete or was given for reasons of malice. Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1998), 66 O.T.C. 16 at para. 32 (Gen. Div.). Such a defendant may be liable if the inevitable result of his or her conduct is such that a charge will be laid against the plaintiff. Fitzjohn v. Mackinder (1861), 9 C.B.N.S. 505 (Eng. Ex. Ct.).

[320] In Wood v. Kennedy (1998), 165 D.L.R. (4th) 542 (Ont. Gen. Div.), the court observed at p. 561:

. . . The nature of her allegations was such that it was difficult, if not impossible, for the police to exercise any independent discretion or judgment, and in the circumstances, the police had little choice but to charge Robert Wood.

[321] In the recent case of Small v. Newfoundland, 2003 NLSCTD 90, (2003), 227 Nfld. & P.E.I.R. 1 at para. 103 (S.C.(T.D.)), the court adopted the statement in Clerk & Lindsell on Torts, 18th ed. (London: Sweet & Maxwell, 2000) at para. 16-12: This first element, initiation of the proceedings, was not discussed by the Supreme Court of Canada in Nelles or Proulx. Whether an informant can be held responsible for initiating a prosecution when police act on information offered was considered by the House of Lords in Martin v. Watson, [1996] A.C. 74. That case established that a person who gives information to the police on the basis of which a decision to prosecute is made by the police will not be liable for malicious prosecution unless:

(1) The defendant falsely and maliciously gave information about an alleged crime to a police officer stating a willingness to testify against the claimant and in such a manner as makes it proper to infer that the defendant desired and intended that a prosecution be brought against the claimant.

(2) The circumstances are such that the facts relating to the alleged crime are exclusively within the knowledge of the defendant so that it is virtually impossible for the police officer to exercise any independent discretion or judgment on the matter.

(3) The conduct of the defendant must be shown to be such that he makes it virtually inevitable that a prosecution will result from the complaint. His conduct is of a nature that "1/if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant".

The Law Respecting the Tort of Conspiracy

[322] Under the heading "Civil Conspiracy" at para. 11 of her judgment in Stillwater Forest Inc. v. Clearwater Forest Products Ltd. Partnership, 2000 SKQB 110, [2000] S.J. No. 211 (Q.B.), Pritchard J. sets out the elements of the tort of conspiracy: [11] At page 265-266 in The Law of Torts in Canada, Vol 2 (Toronto: Carswell, 1990) Fridman summarizes the three distinct situations that can give rise to the tort of conspiracy:

In modern Canada, therefore, conspiracy as a tort comprehends three distinct situations. In the first place there will be an actionable conspiracy if two or more persons agree and combine to act unlawfully with the predominating purpose of injuring the plaintiff. Second, there will be an actionable conspiracy if the defendants combine to act lawfully with the predominating purpose of injuring the plaintiff. Third, an actionable conspiracy will exist if defendants combine to act unlawfully, their conduct is directed towards the plaintiff (or the plaintiff and others), and the likelihood of injury to the plaintiff is known to the defendants or should have been known to them in the circumstances . . .

The Law Respecting Collateral Causes of Action

[323] The "collateral" causes of action alleged by the plaintiffs consist of s. 24 remedy claims for alleged breaches of their rights under the Charter, for abuse of "power" (public office), for negligence, including negligent investigation, and for conspiracy to injure.

[324] Some of the causes of action collateral to a malicious prosecution action, such as abuse of public office, breach of Charter rights and conspiracy to injure, are for policy reasons, subsumed into the malicious prosecution cause of action and do not exist as stand alone causes of action.

[325] In Dix v. Canada (Attorney General), supra, Ritter J. dismissed the "collateral" causes of action brought by the plaintiff consisting of s. 24 remedy claims for alleged breaches of his rights under the Charter, for abuse of public office, for negligence, including negligent investigation, for abuse of process, for conspiracy and for false imprisonment. He found that certain of the defendants had breached several Charter rights of the plaintiff. At para. 553, he held that even though a situation may exist where there is a breach of a Charter right which occurs in circumstances of mala fides and which does not equate to malicious prosecution, he did not need to determine that issue because the plaintiff was not left without a remedy for breaches of his Charter rights. His remedy for those breaches was subsumed within and awarded by means of his cause of action for malicious prosecution.

[326] At para. 554, Ritter J. observed that if the claim for abuse of public office is made out, so is the claim for malicious prosecution. He was also of the view that the converse was true so that the claim was subsumed within malicious prosecution claim once it had been established. This is so because it involves the same conduct alleged in each separate cause of action.

[327] The abuse of process cause of action is also subsumed. At para. 580, Ritter J. concludes that the abuse of process cause of action is a repetition of, or is subsumed within, the malicious prosecution action and award. Having more than one cause of action with duplicate constituents does not increase the plaintiff's award because he can be awarded damages only once for the same conduct. He reaches the same conclusion at para. 581 respecting the conspiracy claim.