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Judge George Baynton's historic judgment, page 5

Continued from Page 4

Application of the Law to the Facts

[328] For the reasons which follow, I am satisfied that the plaintiffs have established on a balance of probabilities that they were maliciously prosecuted by each of the defendants, Miazga, Dueck and Bunko-Ruys.

[329] I need not comment further on the collateral causes of action respecting these three defendants because the collateral causes of action are subsumed within the malicious prosecution action that the plaintiffs have successfully proven. [330] For the reasons set out later in this judgment, I am not satisfied that the plaintiffs have established that they were maliciously prosecuted by Hansen, so none of the collateral causes of action apply to her. The conspiracy to injure alleged by the plaintiffs names Dueck and Bunko-Ruys only. As well, it was not sufficiently plead or pursued at trial.

[331] On the basis of the case law cited and the reasons I have outlined, all the collateral causes of action, including conspiracy, that are claimed by the plaintiffs are dismissed against all the defendants.

[332] I now move on to set out my reasons for concluding that the plaintiffs have proven that the three defendants maliciously prosecuted them. I will deal with each of the four elements of the tort of malicious prosecution in turn.

1. The Initiation of the Proceedings Element

[333] Neither Dueck nor Miazga took much issue with this element. Dueck conducted the investigation, obtained Miazga's advice and swore the informations. Miazga took the case and was prepared to prosecute it all the way to trial if the children had not been too "traumatized" to continue.

[334] Understandably, Bunko-Ruys does take issue with this element. She was a child care worker and a child therapist, not an investigating police officer or a prosecutor. I was not able to find any case in which a child care worker or a therapist has been found liable for malicious prosecution. But nor could I find a case in which a child care worker or therapist became so integrally involved in an investigation or prosecution. Bunko- Ruys did not testify herself but the plaintiffs read in most of her testimony given at her examinations for discoveries in which she valiantly tried to distance herself from her involvement in the investigation and the prosecution. Each of the other defendants testified that she had no role in laying the charges or in prosecuting the charges. But the facts and their conduct belie these bald statements. Bunko-Ruys took a very active role in the whole matter, a role far broader than simply performing her duties as a child care worker or a child therapist.

[335] Until she became involved with the [R.] children in October 1989, they had made no "disclosures" of abuse. In fact, all three [R.] children denied any abuse even though they were interviewed by Dueck who was adept at getting "disclosures". By her own evidence at the criminal trial, Bunko-Ruys said it took her a year to get "disclosures" from [M.R. 1] and six months to get "disclosures" from [M.R. 2]. But [M.R. 1] began to make "disclosures" to the Thompsons in March or April of 1990 and he was taken in May 1990 by Social Services to be interviewed by Schindel. Social Services was upset by Schindel's assessment and the fact he had not begun an investigation. [M.R. 1] was then taken within a day or two to Bunko-Ruys to be "reassessed" and he made some more "disclosures" to her. [M.R. 2] also made "disclosures" to her long before six months. The testimony of Bunko-Ruys on this issue is not credible.

[336] The "reassessment" by Bunko-Ruys in reality replaced police officer Schindel as the investigator of [M.R. 1]'s allegation of abuse. It was on the basis of her reassessment of Schindel's assessment that the child apprehension operation I referred to previously was set in motion and the investigation to gather evidence continued. But Social Services and Bunko-Ruys did not want to risk a repeat performance at the police station. This time they contacted Dueck, not to interview [M.R. 1], [M.R. 2] or [K.R.], but to coordinate the investigation of Bunko-Ruys and Marilyn Thompson which was already underway.

[337] Dueck met informally with the children on June 5, 1990 at Taco Time, but he deliberately avoided interviewing them even though [M.R. 1] told him he had a lot more to tell him about sexual abuse. Rather than taking the "disclosures" of the children at that time, or at least within a reasonable time, which is what would be done in the normal course of events, Dueck deferred interviewing the children for over four months until October 1990. He testified that he deferred his interviews so that Bunko-Ruys could work with the children until she felt they were ready from an emotional perspective to be interviewed by him. But it is evident that the primary object of this whole exercise by Dueck and Bunko-Ruys and likely Social Services was not to rehabilitate the children through therapy. Rather it was to defer the investigation until more "disclosures" could be obtained to provide evidence on which criminal charges could be laid and prosecuted against the perpetrators named in the "disclosures".

[338] Dueck knew that the children had made bizarre abuse allegations to the Thompsons that had implicated numerous individuals. He also knew that Bunko-Ruys had obtained "disclosures" and that she likely could obtain further "disclosures". Both he and Bunko-Ruys knew that further "disclosures" were also being made by the children to Marilyn Thompson and that she would continue to pass these disclosures on to them. Dueck had taken out an occurrence report number but never completed his occurrence report until almost a year later in April 1991. Even after the interviews of the [R.] children had been completed in the late fall of 1990, Dueck had not filed any information or report with central records at the police station respecting "his" investigation into their abuse allegations. These procedures followed by Dueck were not in accordance with the procedures usually followed by other police officers.

[339] Dueck and Bunko-Ruys and various Social Services officials and personnel attended one or two ritual and satanic abuse seminars in Saskatoon. No one had any explanation as to why a topic of this nature would merit at least two seminars. Hinz testified that in 1991 there was a perception about satanic abuse. This might explain the seminars. But it might also explain what the perceptions of Dueck, Bunko-Ruys and certain Social Services personnel may have been about the case they were developing.

[340] Bunko-Ruys met on numerous occasions with the [R.] children and with Dueck during this four-month period. When she pronounced that the children were finally "ready" for their videotaped interviews, they were conducted jointly by Dueck and Bunko-Ruys. Although Dueck took the lead, by his own evidence, Bunko-Ruys was there to ask follow-up questions. The hours and hours of videotaped interviews bear this out. She and Dueck portrayed themselves to the children as part of the "team" and they engaged the children in discussions about what would happen to their alleged perpetrators. I am satisfied that by this time, the decision had been made to charge the plaintiffs. All that remained was to record the evidence from the children on videotape. Donald Mullord, one of the defence counsel at the [R.], [R.] and White trial, observed that in one of the interviews of [M.R. 2], Dueck asked 345 questions while Bunko-Ruys was a fairly close second in asking 240 questions. I acknowledge that I did not count the questions to verify this observation, but I did view all the child interviews and the observation of Donald Mullord is consistent with my recollection of the degree of Bunko- Ruys' active involvement in the interviews.

[341] The active involvement of Bunko-Ruys in the police investigation did not end with the laying of the charges. She became significantly involved in the prosecution of the charges as well. I mention this even though usually events that take place after the charges have been laid are not matters that are relevant to whether a person played a part in the initiation of the proceedings against the plaintiffs. But it characterizes the real role she was playing in this case from its inception to its finalization. It refutes her claims that her role was simply that of a therapist of the children. This is substantiated in part by the fact that for some time, she was retained and paid by the Justice Department, not Social Services.

[342] She had numerous meetings and telephone calls with Miazga, some before the charges were even laid. Although she did not participate in Miazga's interviews of the children, she did attend his office on occasion. She was the primary advisory and evidentiary resource utilized and relied upon by the prosecutors in each of the three court proceedings in their quest for the special concessions for the children that I outlined previously. As an example of her interest and involvement in the case, she authored a memo to the prosecutors respecting her role in recruiting Dr. Zillah Parker, a psychiatrist to work with her in viewing the tapes, a matter that pertained to the evidence of the children, not their therapy. She states:


Zillah is going to be a great help . . . — call me about details
— I am feeling better after meeting with her today and
yesterday — she requests to view the tapes with me — I need
copies for early next week — O.K. —
home later 343-8775
The sun is shinning (sic)

[343] Bunko-Ruys was also tendered by Miazga as a witness in each of the three court proceedings and was qualified as an expert in the area of identification and treatment of sexually abused children. She testified that she met [M.R. 1] in October 1989 and [K.R.] and [M.R. 2] in June 1990. She saw the children on average once or twice per week. She obtained "disclosures" from each of them. She testified that the children were very agitated and fearful to come to court, that they were "quite terrorized", and unlike most children, they did not want to see their parents. They were filled with guilt, shame and embarrassment. [M.R. 1] and [M.R. 2] had to be supervised in class at school and all three had to be supervised at all other times because of their "touching problems" with each other and with other children. In her opinion, each of the [R.] children had been sexually abused and had experienced "extreme" trauma.

[344] As I outlined previously, the opinion evidence Bunko-Ruys gave as an expert in child care was tendered to demonstrate that the sexually inappropriate conduct of the children between themselves and others was, of itself, a strong indication that they had been sexually abused. What is particularly unfortunate is that the prosecution then focused on calling evidence to establish that the children acted out sexually, a fact that was not in dispute and was only too well known to all the parties at that stage of the proceedings. The subtle inference was that proof that the children had been abused was proof of the abuse allegations of the children and, in turn, proof of the offences charged. Bunko-Ruys carried out all of these functions knowing full well that 16 people had been branded as pedophiles and were facing significant jail terms on the basis of the incredible "disclosures" of the children that she was supporting at all stages of the investigation and prosecution.

[345] The professional status, experience and expertise attributed to Bunko-Ruys, and her prominence as a primary witness in each of the three criminal proceedings, lent credibility not only to the children's allegations, but also to Dueck's investigation, the prosecution conducted by Miazga and Hansen and the court testimony of the children. I am satisfied that but for the involvement of Bunko-Ruys, the plaintiffs would never have been charged and even if charges had been laid, the prosecutors would never have proceeded with the court hearings. I conclude that Bunko-Ruys was instrumental in initiating and maintaining the criminal proceedings against the plaintiffs.

[346] As a final comment in this regard, I conclude that some of the testimony Bunko-Ruys gave at the court proceedings was not credible. In fairness to her, she likely confuses fantasy with reality for she repeatedly testified that her role was to "support the children in expressing their perceptions" and that it mattered not whether those perceptions had any basis in reality. The [R.] children testified at the trial before me that they never requested all the special arrangements that were made for them. They refuted just about everything else Bunko-Ruys said about them in her testimony in the criminal proceedings.

[347] It was evident from the testimony given by the [R.] children at the court proceedings that none were traumatized in the least until they were gently confronted by defence counsel who had the temerity to question their perceptions. [M.R. 1] eventually got his way and was permitted to look at his parents behind the screen. At least one of the other children made the same type of request. It is evident from their comments and the number of requests that they made for breaks, that each of the [R.] children became easily bored with the proceedings

[348] I am satisfied that Bunko-Ruys, as well as Dueck and Miazga, initiated the proceedings against the plaintiffs within the meaning of the case law I have cited.

2. The Resolution of the Proceedings in Favor of the Plaintiffs Element

[349] Although the defendants took no issue with this element on the non-suit application, they did take issue with it in their final arguments at the conclusion of the trial. They maintain that although all the charges were stayed by the Crown against the plaintiffs, they were stayed as part of a plea bargain in which Peter Klassen pled guilty to four counts of sexual assault as outlined previously. The case law cited by the defendants establishes that if multiple criminal charges are resolved against a plaintiff by means of a combination of stays and guilty pleas, the proceedings are not resolved in favor of that plaintiff within the meaning of the second requirement of a malicious prosecution action. [350] But counsel for the defendants frankly admit that none of these cases is directly on point and as well, that all pertain to a plea bargain entered into between the Crown and the individual who has pled guilty. Here, none of the plaintiffs pled guilty to anything. It was Peter Klassen, not one of the plaintiffs in this action, who pled guilty to some of the charges brought against him. He was represented by Jay Watson, a lawyer who does not act for and never did act for any of the plaintiffs with the exception of Marie Klassen, the wife of Peter Klassen. Nothing that Jay Watson or Peter Klassen did could commit the other counsel or their clients to any plea bargain involving them without their consent. Likewise nothing Peter Klassen did could bind his wife, Marie, to any plea bargain involving her without her consent. Nor was Peter Klassen's guilty plea given in exchange for stays by the Crown respecting any of the charges brought against any of the plaintiffs.

[351] The defence counsel involved in the criminal proceedings taken against the defendants were Robert Borden, Daryl Labach and Jay Watson. The latter two testified at the trial before me. From their testimony it is clear that no deal was made between the Crown and the plaintiffs respecting any plea bargain. Each of their clients adamantly maintained his or her innocence from the outset of the proceedings. Each declined to enter into any plea bargain by which he or she would plead guilty to one charge in exchange for stays entered by the Crown of his or her remaining charges. The plaintiffs' unequivocal instructions to their respective counsel were to proceed to trial.

[352] It is trite law that a "bargain" or contract pertains only to those who are party to it. The parties to a bargain cannot impose obligations on someone who is not a party to that bargain. I am satisfied from all the evidence I read and heard on this issue, that none of the plaintiffs was a party to the plea bargain between the Crown and Peter Klassen.

[353] It appears from the evidence and from the views held by the parties and their counsel, that the only valid sexual abuse complaint against Peter Klassen was that made by C.H. She appeared to be the only complainant who was credible and her complaint pertained to Peter Klassen only. Jay Watson testified that his client Peter Klassen denied assaulting any of the [R.] children but pled guilty to one count respecting each of them just to get it over with. He had a previous unrelated conviction for a similar fondling type of sexual assault as was alleged by C.H. which weighed heavily against him. It may be that part of his motivation for pleading guilty to these three counts and the count respecting C.H. was a desire to induce the Crown to stay the charges against the plaintiffs. But obviously his guilty plea pertained only to assaults alleged against him and him alone. It did not in any way involve any of the assaults alleged against any of the plaintiffs nor could it absolve them from any moral or legal culpability for the assaults alleged against them.

[354] As a final observation on this issue, I am convinced that the Crown stayed the charges against the plaintiffs, not because of Peter Klassen's guilty plea, but because the Crown was left with no case to pursue against the plaintiffs. The prosecutors and their superiors tried valiantly to obtain a guilty plea from even one of the plaintiffs in exchange for the stays of all the other charges against them. The tentative offer was flatly rejected by all the plaintiffs. Despite a trip by the prosecutors to Regina and a subsequent trip by Miazga to Regina, all efforts to obtain guilty pleas from the plaintiffs failed. Even though this failure made it more difficult for the prosecutors and their superiors to explain to the public and the media why stays were entered on all the charges brought against 10 adult pedophiles, the Crown nevertheless entered the stays. In press releases that were carefully crafted, the traumatization of the children by the proceedings was relied upon as the justification for abandoning the criminal proceedings against all these pedophiles. For these reasons, I reject this submission of the defendants on this issue. [355] I am accordingly satisfied that the criminal proceedings have terminated in favour of the plaintiffs within the meaning of the case law I have cited.

3. The Absence of Reasonable and Probable Cause Element

[356] This element of malicious prosecution involves two sub-elements: a subjective element and an objective element. I previously outlined the evidence I have considered that pertains to the subjective and objective beliefs of the defendants respecting the allegations of the [R.] children. I have also outlined the vast difference between the nature and substance of their allegations and those of the allegations of the other child complainants. I will deal first with my conclusions respecting the subjective considerations that apply to the charges based on the allegations of the [R.] children.

[357] The issue is whether the defendants had an honest belief that the plaintiffs were probably guilty of the crimes they imputed to the plaintiffs. The term "probably" simply means more likely than not. To my recollection, not one of the defendants ever said that he or she had an honest belief in the probable guilt of the plaintiffs. In any event, what would such a statement mean? Would it mean a belief that each plaintiff was guilty of each count charged respecting each complainant? Or would it mean a belief that each plaintiff was guilty of one of the counts charged respecting one of the complainants? All the defendants however did say that they "believed the children" whatever that may mean in the circumstances of this case.

[358] All the defendants testified in one forum or another to the effect that the children told them lies and fabricated stories on occasion. All of them said they did not believe everything that the children alleged. Dueck and Miazga said they disbelieved all the ritualistic and satanic abuse allegations of the children. These allegations were a substantial component of the children's "disclosure" allegations and the evidence they gave in court. None of the defendants has ever clarified just what it is that he or she did believe of the various allegations made by the children. The testimony of each of the defendants that "I believed the children" is meaningless when each defendant has testified that he or she has been lied to by the children and does not believe a substantial number of their allegations.

[359] Neither Dueck or Miazga, with few exceptions, was prepared to say with any degree of certainty what he could remember about his state of mind or beliefs about the children's allegations at specific times. In some of those instances in which they did give direct evidence as to what they disbelieved about the children's allegations, I find that evidence to be inconsistent with the circumstantial evidence of those beliefs that can be inferred from the direct evidence of their respective conduct.

[360] In the case of Bunko-Ruys, if her testimony is taken at face value, she did not even address the issue of her belief of the children's allegations. In her testimony in her examination for discoveries' read-ins and in the testimony she gave in the criminal court proceedings, she says that it was not her role to make judgments as to whether what the children were "disclosing" was true. Nor was it her role to help the children differentiate between their perceptions and reality. Her role was simply to support the children in expressing their perceptions, whatever they might be. But she too, had to acknowledge that the children routinely lied to her. In order to make that determination she obviously had to make judgments about the truth of their statements.

[361] Again, I seriously question the credibility of the evidence that Bunko-Ruys gave about the proper role of a therapist in responding to "disclosures" of children that are incredible or inconsistent with reality. She said that she would not question or challenge such "disclosures" and was of the view that she had no obligation even to the child who made the "disclosures" to try and correct the erroneous perception. This flies in the face of the expert opinion evidence given by Dr. Santa Barbara, the psychologist called by the Crown that I referred to previously. It also flies in the face of the expert opinion evidence given by [M.R. 1] Elterman, the psychologist called by the defence. Both of them were of a totally opposite view to that expressed by Bunko-Ruys. This illustrates the difficulty that Bunko-Ruys got herself into when she undertook to expand her role as a therapist to include holding herself out to give expert advice on matters that were outside her expertise and in the exclusive domain of psychiatrists and psychologists.

[362] I am satisfied that none of the defendants believed many of the [R.] children's allegations. As the case against the plaintiffs was based solely on these allegations, it is difficult for me to accept that any of the defendants honestly believed in the guilt of each of the plaintiffs respecting each of the offences charged against them. The evidence overwhelmingly points to the opposite conclusion. Even if each defendant had testified that he or she believed that each of the plaintiffs was guilty of each of the offences charged, I could not have accepted such evidence as truthful in the face of the unique circumstances of this case and the circumstantial evidence of belief.

[363] I am satisfied by all the evidence on this issue that the defendants did not have an honest belief that the plaintiffs had committed the assaults alleged by the [R.] children nor did they have an honest belief that the plaintiffs were guilty of the offences charged against them. In my view, the subjective belief held by each of the defendants was that the children had been sexually abused and that one or more of the 12 plaintiffs who were charged must have done it. I need not comment on what belief the defendants may have had respecting the [R.], [R.] and White allegations because those individuals have not brought a malicious prosecution action and the evidence that pertains to them is quite different than that which pertains to the plaintiffs.

[364] Having commented on the subjective considerations, I now move on to comment on the objective considerations. It is not enough that the defendants had an honest belief in the guilt of the plaintiffs as charged. Any honest belief of the defendants had to be founded on reasonable grounds. In other words, on a state of circumstances that would reasonably lead any ordinarily prudent and cautious person, placed in the position of the defendants, to the conclusion that the plaintiffs were probably guilty of the crimes imputed to them by the defendants. The requirement for an objective consideration is an essential element in a free and democratic society where individuals are presumed innocent until proven guilty. No one, including a police officer or a prosecutor, can cause serious criminal charges to be brought against an individual absent reasonable and probable grounds to support an honestly held belief that the individual has committed the offences charged.

[365] Were it not so, any innocent person could be subjected to serious and lengthy criminal proceedings by an individual who holds an honest but irrational belief that the person is guilty of a criminal offence. Fortunately most people are not irrational and do not form beliefs about the criminal liability of others that are strong enough to motivate them to lay criminal charges unless their beliefs are supported by reasonable and probable grounds. This is why persons who charge others without reasonable and probable grounds to do so, usually act out of malice.

[366] I will not repeat the numerous facts that I previously related to demonstrate the absence of reasonable and probable grounds at any stage of this case upon which any of the defendants could have based an honest belief that the plaintiffs were guilty of all the offences charged against them. In general terms, the charges were brought solely on the allegations of the three dysfunctional [R.] children who were known to be untruthful and who demonstrated that they were witnesses who lacked credibility. The independent physical signs of abuse referred to in the Yelland medical reports did not point to the plaintiffs. They pointed to sexual activity between the children themselves and to experiences encountered before they were ever in the Klassen home. Nor was any independent physical evidence found by the police "investigation" that should have been available to support some of the bizarre allegations that the children made if the allegations of the children were substantially true.

[367] The allegations of the other children from whom "disclosures" were obtained by the time the initial charges were laid, were of such a different nature that they tended to refute rather than support the allegations of the [R.] children. Some of those children who disclosed abuse by one of the plaintiffs denied any abuse by the other plaintiffs. Yet the [R.] children claimed they had witnessed the abuse that was denied by the other children. Some of the incidents that were "disclosed" by the other children were so capable of misinterpretation by a young child that they should never have been relied upon as a sexual assault. An example is the allegation of M.K. that his foster mother touched his dinky and his bum with a washcloth when he was four years of age.

[368] Not only was there no corroboration or independent support of the allegations made by the [R.] children, the nature of their allegations alone was so unbelievable as to be patently absurd. This is so even if the ritualistic and satanic aspects of their allegations are ignored. If their allegations against the 12 plaintiffs are believed, young couples with their own families to care for were routinely abusing the [R.] children in the same rote manner in different houses practically every time the children visited. The other adults who were present must have been oblivious to all these goings on even though the children lined up at the bedroom door, as if in a theatre lineup, to await their turn with one of the plaintiffs. As an example, [M.R. 2] testified at the Klassen - Kvello preliminary inquiry that after abusing her in the rote fashion she uses to describe sexual abuse, Dennis Kvello never put his pants back on until he had performed the same rote abuse on one after the other of the eight or more children lined up at the bedroom door.

[369] Although the same children say they were present at many of these incidents, some testified to things happening that would have been seen by the others. Yet the others said such things never occurred. Many of the allegations were highly improbable and next to impossible. The sheer number of perpetrators acting in almost exactly the same fashion is of itself almost incapable of belief without some plausible explanation, such as the perpetrators being members of some strange and evil cult. Not only was there no such explanation, but the defendants have testified that they did not believe this to be so. Hansen laughed when asked by Robert Borden in cross-examination at the trial before me if anyone had suggested to her that the plaintiffs were associated with a satanic cult.

[370] A significant amount of exculpatory evidence was ignored by the defendants that tended to show the absence of reasonable and probable grounds for believing that the plaintiffs had committed the offences alleged. Although each piece of evidence is not conclusive and might be capable of being explained away, the cumulative effect of the exculpatory evidence is significant. It is beyond dispute that not one of the natural children of the plaintiffs was abused. Despite numerous physical examinations conducted on behalf of Social Services on many of the natural children of the plaintiffs on different occasions, there was not one shred of evidence to indicate that any of them had been sexually or physically abused. This was so even though some of the [R.] children alleged that some of these natural children were sexually abused by their parents and that some of them were involved in sexual relations with the [R.] children.

[371] It is also beyond dispute that Anita Klassen on her own initiative reported to Social Services the potential sexual abuse incident involving [M.R. 2] and her father that I related previously. Had Anita Klassen and her family been routinely abusing the children as alleged, it is highly improbable that she would have risked the physical medical examination and the police investigation into the incident that she knew would follow and which did follow. The fact that Miazga presented her at the [R.], [R.] and White trial as a Crown witness respecting this incident, suggests that he believed she was credible and that [M.R. 2] had been assaulted, not in Dale and Anita Klassen's home, but in her natural parents' home.

[372] The defendants closed their eyes to the obvious inference that the i ncreased evidence of sexual abuse on [K.R.] and particularly [M.R. 2], as disclosed by the Yelland 1990 and 1991 medical reports, was caused by the continued sexual assaults by [M.R. 1] on his sisters in the Thompson home, in their yard, at school and in Bunko-Ruys' office. The evidence of abuse in the 1990 reports respecting examinations done at a time when [M.R. 1] had not been with his sisters in the Dale and Anita Klassen foster home for about six months, did not rule out his responsibility for the presence of old healed tears in their vaginal and anal areas which were more than three to six months old and likely older. The only potential recent evidence of abuse was that [K.R.] had an itchy bum and [M.R. 2]'s vagina was red. Neither condition confirmed sexual abuse by the Klassens. The evidence of prior abuse pointed more toward abuse in the birth home. This was the thrust of Miazga's case against [R.], [R.] and White.

[373] There is also evidence of the willingness of most of the plaintiffs to submit themselves to videotaped police interviews by Dueck without the benefit of counsel. Despite an aggressive grilling and the use of police interview techniques by Dueck, each one who was interviewed emphatically denied the allegations of abuse. Although the conduct and demeanour of a person is not determinative of credibility, the plaintiffs did appear in their videotaped interviews to be honest, forthright and truthful. By stark comparison, this was totally lacking in the demeanour of the [R.] children in their videotaped interviews.

[374] Another piece of exculpatory evidence is the concern expressed to Social Services on September 29, 1988 by Diane Kvello, one of the plaintiffs, respecting the three foster children, S.W.H., aged 6, S.E.H., aged 3, and S.L.H., aged 2, that had been placed in her home. She was concerned because of the sexualized behaviour exhibited by the boy, the foul smell of the genitals of the two girls and their aversion to having their "bottoms wiped". She took the children to Dr. Anne McKenna for a physical examination for potential sexual abuse.

[375] In her November 25, 1988 report to Social Services, Dr. McKenna observed respecting the boy: "The penis was normal with no evidence of infection or trauma. Examination of the rectum revealed a tight anal sphincter. There was no evidence of previous trauma." She observed that the three-year-old girl had " . . . an intact hymen and no evidence of infection or trauma. Rectums appeared normal." She noted that the youngest girl had been "having intermittent problems with constipation since the age of 9 months. The hymenal ring was intact. There was no evidence of recent trauma or infection." Her understanding was that the children had made no disclosures of sexual abuse. The report contained the usual qualifier: "There are no physical findings of sexual abuse. This does not imply that sexual abuse has not occurred."

[376] Again, it is highly unlikely that an abuser would, on her own initiative, express a concern to Social Services knowing that she would then be required to take all her foster children to be physically examined for potential sexual abuse. It is also significant that none of the children exhibited evidence of sexual abuse despite the wild allegations of the [R.] children about groups of children being abused by the Kvellos in their home.

[377] Another piece of exculpatory evidence is the undisputed fact that, for at least a year before [M.R. 1] left their home, Dale and Anita Klassen had been requesting Social Services to remove him because they could no longer handle him. Again, it is improbable that people who are routinely abusing children would make such a request knowing that it not only would precipitate an increase in the attention paid by Social Services to their home, but also would involve an investigation, an interview, more therapy and likely a physical examination. This is what in fact occurred.

[378] I am satisfied on a consideration of the evidence as a whole, that there were no reasonable grounds on which the defendants could base an honest belief in the probable guilt of the plaintiffs of the crimes charged against them. I am also satisfied that the three defendants did not have reasonable and probable cause to initiate and continue the proceedings against the plaintiffs within the meaning of the case law I have cited.

4. The Presence of Malice Element

[379] This is likely the most difficult issue raised by the case. I previously reviewed the cases that define and elaborate upon this element. The defendants contend that the plaintiffs must prove they acted dishonestly in order to establish this element of a malicious prosecution cause of action. I reject this contention if the defendants interpret the concept of dishonesty narrowly to exclude all improper or unlawful conduct except serious misconduct such as fabricating evidence or accepting a bribe. The case law I have cited, particularly the recent case law, does not equate the concept of malice with a narrow interpretation of dishonesty. A much broader interpretation is given to the concept of malice as an essential element of a malicious prosecution cause of action.

[380] The comments of Klebuc J. in Klein v. Seiferling, supra, at paras. 67 and 70 are instructive:

67 The manner in which the Officers conducted their investigation constitutes 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 directly and inferentially was malicious. They withheld vital information from Connelly regarding Weist's limitations 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 . . . These factors and those previously noted in my view establish malice of the character contemplated in Nelles, supra. In addition, Seiferling's and Turcotte's primary motivation for arresting Klein, Kozar and Moore and seeking a warrant for the arrest of Ransom and their subsequent participation in prosecuting them was so inconsistent with their legal responsibilities and the administration of justice that it alone constitutes malice. . . .

70 . . . the Officers represented Weist to be 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 Lawrence and Weist were never fully discussed with Connelly. Thus they knew Connelly's opinion was not an informed one based on the facts. . . .

[381] Some of the cases I cited hold that in extraordinary circumstances, laying criminal charges and proceeding with the prosecution of them in the absence of reasonable and probable cause, can of itself constitute malice or at least constitute an indication of malice. Surely if a malicious prosecution case with extraordinary circumstances exists, it is the case before me. It is a high profile case that charged many individuals with serious criminal offences. It had the potential to visit disastrous consequences on those charged even if they were later found to be innocent. There was a glaring absence of any reasonable and probable cause to lay and prosecute the charges. If these factors do not constitute extraordinary circumstances, I cannot conceive of a set of circumstances that would do so. In my view, proceeding with charges in such an extraordinary case in the absence of reasonable and probable cause constitutes a strong presumption of malice. The same consequences flow from continuing on with the prosecution of such a case.

[382] In any event, even if I am in error in finding that such a case raises a presumption of malice, the law is clear that there is a strong indication of malice in such a case. As well, there are many other strong indications of malice that are inferred from the conduct of the defendants. I have previously outlined many of those indications of malice, but will comment briefly on some of the more salient ones.

[383] There is no evidence to indicate why Dueck never considered or sought some explanation for why such a large number of people would act in such a concerted, unusual, repetitive and perverted fashion with so many children. In fact, the evidence, including that of Amy Jo Ehman, suggests that Dueck was blinded by his zeal to turn the wild allegations of the [R.] children into a high profile case that would portray him as a diligent and unrelenting protector of abused children. He had a close working relationship with Social Services personnel and workers and with child therapists. He had attended at least two seminars on ritualistic abuse around the same time that he had obtained, or was obtaining, the "disclosures" of ritualistic and satanic sexual abuse through other members on his "team".

[384] It is almost beyond belief that none of those involved in the prosecution of the plaintiffs stood back, so to speak, and asked themselves if any of this made any sense and whether it could reasonably be true. In failing to do so, Dueck totally abrogated his duty as the primary investigating officer to carry out a proper investigation. Miazga totally abrogated his duty as the primary prosecutor to make an objective and competent assessment of the case he was consulted about and which he aggressively prosecuted.

[385] This case is rife with examples of the failures of the defendants to carry out their respective responsibilities. In the interests of brevity, a couple will suffice. Dueck and the prosecutors maintained that Marie Klassen, a crippled, elderly and almost blind grandmother, was not as infirm as she made out. Hansen claimed that she thought one of her child witnesses had said that Marie Klassen could get around on her own without using a wheelchair. But a review of the evidence given by the child witnesses indicates that they said that Marie Klassen could get around out of the wheelchair only with difficulty. The distinction of whether she was bedridden or got about with difficulty using a cane or a walker is of little moment as to whether she was physically capable of performing the gymnastic feats attributed to her by the [R.] children. These included getting on top of them and having sex with them in the bathtub. They also said that they tried to flush her down the toilet several times. Although her feet went down the hole, she was able to jump right out of the toilet and onto the floor.

[386] Another example is that Richard Klassen was charged with a sexual assault on [K.R.] even though [K.R.] had never named him as one of the individuals who had assaulted her. A "disclosure" by [M.R. 1] to the effect he had witnessed an assault on [K.R.] by Richard Klassen was relied upon to continue to prosecute the charge. A similar blunder was the charging of Kari Klassen with a sexual assault on [K.R.] even though [K.R.] had never named her as one of the individuals who had assaulted her and even though neither [M.R. 1] nor [M.R. 2] had "disclosed" that they had witnessed her assaulting [K.R.].

[387] No explanation was ever given as to why one or more seminars dealing with ritualistic and satanic abuse, a rare and unusual type of child abuse, would find an audience in a small community like Saskatoon. The circumstances leading up to this case and the nature of the rapidly evolving attitudes of child care workers and therapists respecting child abuse, cause me to suspect that Dueck and Social Services personnel believed that this unusual kind of abuse was taking place in Saskatoon and were looking for evidence of it. It is obvious that they pressed very hard to find it. Throughout his involvement in the case, Dueck appeared at times to be conducting and expressing himself more as a social worker than as an investigating police officer.

[388] There is no evidence that Dueck ever meaningfully compared the allegations he had obtained from the children to determine if they contained any significant inconsistencies that would detract from their credibility. Nor did he ever compare those allegations with the ones they had previously "disclosed" to the Thompsons or to Bunko-Ruys. Had he done so, he could not have avoided seriously questioning whether the allegations were true in substance or were fabrications made by extremely dysfunctional children. This is so because it is beyond dispute that there were numerous significant and irreconcilable inconsistencies within the allegations of each child and even more between the allegations of each child.

[389] Dueck in effect did no real or meaningful investigation of the allegations of abuse as he was required by law to do. Even the provisions of the Saskatoon Sexual Abuse of Children Protocol, upon which he so heavily relied, acknowledged that child abuse allegations must be investigated and assessed. What he did in effect was to simply extract, by shamelessly leading questions, the incredible allegations that the children "disclosed". Then he recorded them. Finally he allocated them among the respective individuals who were named in the "disclosures". There is no evidence that Dueck ever paused to consider whether the allegations could reasonably be true. In his interviews of the children and of the plaintiffs he was going to charge, he kept stating that children never lie and that they always tell the truth about sexual abuse. He obviously convinced himself that his statement applied to the child complainants he had intervi ewed even though he knew that children did in a fact lie on occasion.

[390] Another indication of malice on the part of Dueck and Miazga is that they were not evenhanded in their zeal to charge and prosecute all the alleged perpetrators named by the [R.] children. There were numerous identifiable individuals, many of them blood relatives of the children, who the children named as perpetrating serious sexual and physical assaults upon them. Some of these assaults were far more serious than those alleged against some of the plaintiffs. Some of them were more serious than any of those alleged by some of the child complainants other than the [R.] children. Yet only the Klassen - Kvello families were targeted. These other indivi duals were not investigated, charged or prosecuted. The excuses proffered for this discriminatory exercise of police and prosecution powers were not convincing.

[391] Almost from the outset until the charges were laid, Dueck consistently conducted himself as if he had tainted tunnel vision. I previously related incident after incident to demonstrate that his mind was completely closed to any indication that the plaintiffs might be innocent of what was alleged by the children against them. One of the clearest examples is the manner in which he rejected the advice that was given to him by Hinz. In my respectful view, the advice Hinz gave him was right on the mark. Although Hinz is no longer a prosecutor, he was highly regarded as a tough but fair and a competent prosecutor. I respect his views, his judgment and his integrity. Some of the observations he made on the witness stand in the case before me are relevant to the issue of malice on the part of Dueck and, to a lesser extent, on the part of Miazga.

[392] Hinz testified that the abuse alleged by the children in the material given to him by Dueck to review, was done within a ritualistic context and involved human sacrifice. It reminded Hinz of the 17th century Salem witchcraft trials. In his opinion, the allegations were so bizarre as to be incredible unless they were corroborated in some material way. He wondered how the truth of these extraordinary claims could be demonstrated. In his opinion, a conviction was unlikely without corroboration of the allegations. He observed that it is a common sense proposition that the stranger the evidence is, the stronger the proof that is required. As well, if a witness is not credible on a significant point, it is hard to accept the evidence of that witness on other points. The problem facing Dueck was that if the allegations of the children about murder and ritualistic sacrifice were untrue, the other allegations of the children about sexual abuse were not credible.

[393] Hinz testified that in 1991 there was a public perception respecting satanic abuse. He observed that this case was the only case in Saskatchewan, until the Martensville case, that involved such allegations. He told Dueck that he was investigating murders, not just sexual assaults and he advised him to investigate further to try and locate the bodies of the babies which supposedly had been killed, partially eaten and buried.

[394] Dueck's response to Hinz was that these cultists were "far too clever for that and would have already disposed of the body". Hinz then suggested that Dueck investigate to see if any children were missing. Dueck responded that this would be fruitless because "these cultists have brood mares who are willing to bear children". Hinz was dismayed at this response as he had never heard such a comment before. He said the conversation ended then because he had run out of ideas. Dueck took back his file and Hinz had no further contact with him.

[395] Hinz testified that prosecutors were under intense pressure from Social Services and the police not to stay charges on the basis of lack of corroboration. He said that he likely would not have had the backbone to tell this huge constituency to stay the charges that followed in this case. He says he was never a member of the camp that held to the ideological view that children never lie and strongly maintained that to proceed with criminal charges on this basis was not in accordance with the law. He said that to stay charges in the face of having to answer to Regina and the small "p" political pressure was not feasible. But failing to do so only makes it worse. Nor will it get any better if all the Crown has are wild allegations and inconsistencies.

[396] He said that some prosecutors believed it was their duty to take a case to court and let the judge decide. He did not favor this approach as the majority of committals in these kinds of cases resulted in acquittals at trial. If he noted material inconsistencies in the child's stories, he would bring that to the attention of the defence lawyer and likely would shut the case down. He said that the "Rand statement" as to the role of a prosecutor was "stamped on their foreheads at prosecutors' school". He remembered the two facets to it: "to convict the guilty and to protect the innocent".

[397] My colleagues and I discussed concerns about the increase we observed in the early 1990s in the number of sexual assault prosecutions that were brought before the court without the allegations being properly investigated. We expected a large increase in the incidence of sexual assault prosecutions. We did not expect a large increase in the prosecution of allegations that had not been objectively assessed. It was apparent in many instances that the prosecutor had not vetted the case nor carried out his or her role as a gatekeeper. No objective assessment had been made of the case which was supposedly presented on behalf of and in the name of the Crown. The prevailing attitude among some prosecutors appeared to be that their role in sexual assault cases was now different from other cases. It was simply to take an allegation of sexual abuse to court and let the judge decide. As clearly indicated by the case law I have cited, such an attitude or practice on the part of a prosecutor is not only contrary to law but is professionally irresponsible.

[398] The case before me is a prime example of why the law requires prosecutors to be more than the legal counsel for a parent, a child complainant, a foster parent and Social Services. Notwithstanding the views of some prosecutors, these individuals are not their clients. Nor does a prosecutor act on behalf of such individuals. A prosecutor is an officer of the court who represents the Crown. There is a very compelling rationale for requiring prosecutors to be principled, fair, open-minded and cognizant of the risk of ruining the lives of innocent people by taking unworthy cases to court. A prosecutor has a much greater opportunity to make credibility assessments of his or her witnesses than does the court. The court usually sees a complainant or witness only once for a brief interval in somewhat of a staged setting. Judges are discouraged from becoming actively involved in the questioning of witnesses or in raising issues not placed before them by the Crown or defence.

[399] A prosecutor on the other hand is able to meet a crucial witness on several occasions if required. The police force and its files, and additionally in the case of foster children, the resources of Social Services and its files, are a resource available to the prosecutor that is not available to the court. The prosecutor can assess, probe, confirm and reassess the allegations of a complainant, including that of a child complainant. At times other independent information or third party witnesses can be accessed in this respect. The court does not have these resources or opportunities. It must do the best it can with what is put before it. The information gathered through a competent, thorough and objective investigation, is an effective tool in the hands of a prosecutor to obtain a guilty plea. Without it a trial is assured and the risk of a wrongful conviction is increased. It is not an easy task for defence counsel to successfully challenge a fabricated rote allegation of abuse absent a proper investigation by the police and a fair prosecution on behalf of the Crown.

[400] Although the role of a police officer differs considerably from that of a prosecutor, an officer of the law does have prescribed legal responsibilities and obligations. As indicated by the case law I cited previously, a police officer abrogates his or her responsibility and acts contrary to law if he or she simply lays a charge because a complaint has been made. The laying of a charge is not lawful absent an honest belief in probable guilt based on reasonable grounds. Usually these two requirements cannot be met without some form of an investigation. Any investigation requires a rational consideration with an open mind of all relevant circumstances, including those that are exculpatory as well as those that are inculpatory. Many of the observations I have just made about the responsibility of prosecutors to act independently of a complainant, applies to police officers as well.

[401] While addressing this issue, I express my concern about Hansen's testimony to the effect that she has heard judges instruct juries that they are entitled to accept all, some or none of the testimony of a witness. She understands this to apply as well to her discretion as a prosecutor. This is an ill-conceived conclusion on her part. The form of jury charge she refers to is directed to witnesses in general. Other considerations apply to certain kinds of witnesses such as an accused or a complainant. In any event, a jury charge applies only to juries and defines their roles and responsibilities. It does not apply to prosecutors nor does it attempt to define their roles and obligations.

[402] It is beyond the scope of this judgment to comment on the impropriety of a prosecutor presenting a witness to the court that the prosecutor knows is not credible in many respects. Whether the prosecutor has made a timely and a full disclosure to the defence and the court of all matters touching on the issue would certainly be a relevant consideration. But the point to be made in this case is that both prosecutors presented witnesses to the court that they knew were not credible in the sense that much of their evidence was false and inconsistent and some of it had been previously recanted. What is particularly reprehensible is that some of this was not disclosed to the defence, at least on a timely basis, and much of it was kept from being placed before the court. In fairness to the prosecutors, it appears that they did advise the court on a few occasions when the children fabricated a story in the face of the court. An example is when Miazga advised the court that [M.R. 1] lied when he told the court he had kept notes of the abuse and offered to produce them.

[403] Another clear example of Dueck's tainted tunnel vision is his failure to heed the concerns expressed by Verwey of Alberta Family Services in Red Deer. After reading pages of transcripts filled with the questionable opinions of child care workers and therapists unqualified to give such opinions, the practical observations of Verwey were like a breath of fresh air. The same can be said about the observations of Hinz compared to some of the observations made by Miazga and Hansen about child witnesses throughout the three criminal proceedings and, to a lesser extent, during the civil trial.

[404] One aspect of the evidence of each of the defendants is particularly telling. I read pages of the testimony of Bunko-Ruys in the form of evidence given in each of the court proceedings and in the read-ins of her testimony in her examinations for discovery. In that testimony she went on and on about her concern for the needs and welfare of the children, for the need to support them, for the importance of believing their assertions and for the need to prevent them from being traumatized by the court process. Yet I read not a word by way of an apology to any of the plaintiffs, not a word by way of an expression of any regret or remorse for the part she played in the wrongful charging and prosecution of the plaintiffs and not a word for the disastrous consequences and significant trauma that were suffered by the plaintiffs as a result of her involvement in the case.

[405] I also read pages and heard hours of testimony of Dueck, Miazga and Hansen. The same that I said about Bunko-Ruys applies to each of them. In my respectful view, the lack of any regret or remorse for what was done to the plaintiffs is a strong indicator of malice on the part of each of the defendants, including Hansen.

[406] Another indicator of malice on the part of each of the defendants, including Hansen, is his or her obvious lack of any concern or even interest about whether the common and ordinary people he or she was proceeding against on the basis of such incredible allegations, might be innocent of the serious criminal offences alleged against them. The presumption of innocence is likely the most basic principle of our criminal law and our democratic system. It appears from the testimony in the read-ins from her examinations for discovery that the concept is not one known to Bunko-Ruys. But Dueck, an experienced police officer, and Miazga and Hansen, both experienced prosecutors, knew otherwise. Nor did I hear a word of concern expressed by any of the defendants, including Hansen, about what effect the prosecution would have on the public confidence in the justice system if the incredible allegations were untrue. The only thing that came close to this was Hansen's reference in her prosecutorial memo to the risk of a "disastrous acquittal" if the proceedings were not stayed against the two "young offender" plaintiffs.

[407] In a similar vein, there was not a hint from any of the defendants, including Hansen, of any remorse for the negative effect that the prosecution of the plaintiffs on false child sexual abuse allegations has had on the credibility previously afforded to sexual assault complaints of child witnesses. This case illustrates that the overzealous and mindless prosecution of sexual abuse allegations that are made by unreliable child witnesses, defeats the underlying objective of the very Protocol that is relied upon to supposedly justify such a cause of action. The ideological pendulum in our society has a history of swinging from one extreme to the other. In the early 1990s, pursuing child allegations of child abuse was the idealogy of the day. At the outset of the 21st century, pursuing wrongful prosecutions and convictions appears to be the idealogy of the day. Hopefully a balance of these idealogies will prevail. I am cognizant of the potential for prosecution chill or for wrongful convictions if a balance is not maintained.

[408] Another strong indicator of malice on the part of Bunko-Ruys is the manner in which she responded to [K.R.] when [K.R.] confessed to her that she had lied in court about being abused. At the time she was made aware of this, the appeal from the conviction of [R.], [R.] and White in the related proceedings had likely been taken but definitely had not been concluded. Although the Supreme Court overturned the convictions as I outlined previously, had the recantation been properly communicated to the authorities it would likely have constituted fresh evidence that the Court of Appeal in the first instance could have considered.

[409] By withholding and in effect attempting to stifle such evidence, Bunko- Ruys may, in the circumstances, have run the risk of being charged with the criminal offence of obstructing justice. At the least, her conduct shows bad faith and malice towards all the individuals who were charged, including the plaintiffs. All the defendants, except for Dueck, maintained that the stays were entered by the Crown because the [R.] children were too traumatized to testify again in another court proceeding. They did not reveal that the stays were entered because the evidence of the [R.] children was inherently unreliable. By adopting such a position, the defendants, except Dueck, caused the public to presume that the plaintiffs were guilty as charged. The response of Bunko- Ruys to the recantation that was made to her, constituted a deliberate decision on her part to stifle the truth so that this public perception of the guilt of the plaintiffs would remain unchallenged.

[410] I indicated previously that I am skeptical of any statements, made in or out of court, of the [R.] children. I have no reliable grounds to question or disbelieve the evidence that [M.R. 1], [M.R. 2] and [K.R.], now adults, gave in the trial before me. But in view of the fabrications and lies they told a decade ago, I do not have the same degree of trust in their credibility as I would have in the credibility of a witness who has not been known to lie or give perjured evidence. The credibility of the testimony of [M.R. 1], [M.R. 2] and [K.R.] in the civil trial was bolstered by the fact that it was not seriously challenged. Their testimony tends to be consistent with known circumstances that are independent of their testimony. In the criminal proceedings that took place over a decade ago, the reverse pertained.