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Judge George Baynton's historic judgment, page 6

Continued from Page 5

[411] As well, the substance of their evidence and their demeanour and conduct demonstrated at the civil trial, were more consistent with the demeanour and conduct of persons who give truthful testimony than with those who are untruthful. It was unlike the demeanour and conduct that they exhibited in their videotaped interviews and subsequent testimony at the criminal proceedings a decade ago. One of the most reliable indicators of the credibility of the testimony of [K.R.] that she recanted her abuse allegations to Bunko-Ruys, is the failure of Bunko-Ruys to take the witness stand and deny what [K.R.] said to her.

[412] Another indicator of malice on the part of Miazga is the manner in which he conducted himself throughout the criminal proceedings. One cannot fault a hard-nosed or an aggressive prosecutor provided that the prosecutor is fair and objective. A careful reading of the transcripts of the two preliminary inquiries and the trial, demonstrates that he was at times neither fair nor objective. He cannot be faulted for the tremendous effort he successfully invested in convincing the two judges involved to turn the court on its head, so to speak, to accommodate the perceived needs of the children. Nor can he be faulted for the appearance, induced by all these special arrangements and concessions for the children, that the plaintiffs huddled behind the screen were on the same playing field as the child complainants who apparently accessed the courtroom through the judges' entrance and into a special room in the judges' chambers.

[413] But he can be faulted for successfully objecting to Mr. Borden's request that, as an officer of the court, he be permitted to sit in the courtroom as an observer during the first preliminary inquiry so that he could hear what evidence the children would give. Mr. Borden undertook to comply with any conditions that might be imposed on him, but to no avail. Two consequences flowed from Mr. Borden's exclusion. First, it made it more difficult for him to effectively represent his clients at the subsequent preliminary inquiry. Second, it sheltered the children to a considerable degree from subsequent successful attacks on the credibility of their evidence. This was not a case of protecting a fragile and truthful child from a subsequent unfair and aggressive crossexamination of his or her credible allegation of abuse. It was a case of protecting the fabrications of dysfunctional and untruthful children from a subsequent effective challenge of their fabrications of abuse.

[414] In a similar way, Miazga was routinely aggressive and diligent in objecting to the cross-examination of the children on what they had previously "disclosed" in their videotaped interviews or to others. Although the defence lawyers were able to crossexamine the children on many significant inconsistencies between their court testimony and their videotaped "disclosures", Miazga successfully objected at the preliminary inquiries and at the trial to the court viewing the videotaped interviews or to reading the transcripts of them that had been prepared respecting those of the [R.] children.

[415] These objections have special significance to this case because the best evidence the defence had was the videotaped interviews of the children. In my respectful view, no right thinking individual could have viewed those videos without concluding that the children were repeating fabricated allegations and then fabricating other allegations. Yet because of Miazga's efforts, the courts were denied the benefit of those videotaped interviews in making their assessments of the credibility of the [R.] children and the strength of the Crown's case.

[416] In the average case, an overly aggressive prosecution would not of itself constitute an indication of malice. But in this unique case, where the freedom of so many individuals hung in the balance and where Miazga himself had obvious and legitimate concerns about the veracity of the evidence of the children, he should have afforded defence counsel with every reasonable opportunity to challenge those allegations. What was of critical importance in the proceedings he was conducting was not winning the case, but determining the truth of the questionable allegations. By taking the overly protective stand that he did, he seriously increased the risk of the wrongful convictions of a large number of innocent individuals.

[417] Another similar example is Miazga's handling of many of the expert witnesses he called at the [R.], [R.] and White trial, and to a lesser degree, the expert witnesses he called at the preliminary inquiries. Professional witnesses are usually able to fend for themselves. Yet Miazga led some of his expert witnesses to the point of telling them what to say and he aggressively, and at times improperly, objected to their crossexamination by defence counsel. His objections were significant enough respecting the cross-examination of Dr. Santa Barbara, his expert psychologist witness, that the trial judge on her own initiative warned him that he was being overly protective of her. On other occasions he unduly took issue with the rulings that had already been made by the presiding judges, presumably in an attempt to get the judges to reverse their rulings, an objective he realized on more than one occasion.

[418] Again, one can understand any prosecutor becoming overly zealous in the heat of the moment, but the inescapable inference to be drawn from Miazga's approach, attitude and conduct throughout the criminal proceedings is that he was going to get committals or convictions no matter how unreliable his witnesses were and that he was not going to let the truth get in the way. He attempted to minimize the significant inconsistencies in the children's evidence by attributing them to the extreme trauma the children were supposedly experiencing in giving their evidence and being subjected to cross-examination by the defence. At one point he accused Mr. Borden of conduct bordering on the unethical. But to his credit, when prompted by the judge, he quite properly apologized for his comments.

[419] Miazga is generally held in high regard as a competent and principled prosecutor. In fairness to him, I am of the view that he likely bowed to pressure from his superiors, Social Services personnel and workers, Dueck, his child sexual council abuse peers and the prevailing attitude of the day, to accept the child sexual abuse allegations of the [R.] children without question and to vigorously prosecute those that they named as their abusers. He likely got himself into a prosecution that he knew was doomed from the start and did not know how to extricate himself from it. In so doing, he abdicated his legal and professional responsibilities as a prosecutor and was responsible for the malicious prosecution of the plaintiffs that ensued.

[420] I am satisfied that Miazga, Dueck and Bunko-Ruys had malice and a primary purpose other than that of carrying the law into effect in initiating and continuing the criminal proceedings against the plaintiffs within the meaning of the case law I have cited. I have outlined various indications of malice on the part of Hansen. In view of my disposition respecting her I express no final conclusion as to whether this element of the cause of action was established against her.

Comments on Submissions by the Defendants

[421] The defendants in their submissions referred to four specific events involving the views of third parties. They say that these views show that they had no malice and as well, had reasonable and probable cause to lay charges and to continue on with the prosecution. As the absence of malice or the presence of reasonable and probable cause is a complete bar to the plaintiffs' action, I will deal with each submission in turn.

The Credibility Finding by the Trial Judge

[422] The first event is that a judge of this court found that the [R.] children were credible because she convicted [R.], [R.] and White on the strength of the [R.] children's evidence. This is of no assistance to the defendants for six reasons. First, on the admission of Miazga himself, the case against [R.], [R.] and White was stronger than the case against the plaintiffs.

[423] Second, the decision of the trial judge was overturned by the Supreme Court of Canada. It is improper to rely upon the decision of the trial judge other than for the proposition that the decision she made on the basis of her belief in the credibility of the [R.] children was found by a higher judicial authority to be in error. The defendants cannot accordingly utilize her decision or belief to validate their beliefs or actions. Nor can they rely upon her decision or belief to preclude this court from determining that the [R.] children were not credible witnesses. I have read all the evidence that was presented to the trial judge and have the added benefit of viewing the videotaped interviews of the [R.] children.

[424] Third, Miazga was successful in keeping the videotaped interviews of the [R.] children's "disclosures" from the scrutiny of the trial judge. This was the most damaging evidence respecting the credibility of the [R.] children. Yet the trial judge did not have the benefit of this evidence in assessing the credibility of the [R.] children. I am convinced that had she reviewed these videotapes, her conclusions and findings respecting the [R.] children would have been vastly different.

[425] Fourth, Miazga focused his case not on establishing the truthfulness of the allegations of abuse that the [R.] children made, but on establishing that the [R.] children were sexualized. He then relied on the opinion evidence of Bunko-Ruys' to establish the premise that sexualized children are sexually abused children and that the sexualization of the [R.] children was so extreme that it demonstrated very traumatic abuse early in their development. The message inherent in the case he presented to the trial judge was that the [R.] children had to have been sexually abused, that they had to have been sexually abused while in the home of their birth parents when [M.R. 1] was seven and under and the girls were four and under, and that it must have been the birth parents and the boyfriend who had abused them.

[426] The fact that what the [R.] children said about that abuse was inconsistent or made little sense, was an obvious concern for Miazga and Bunko-Ruys. At the preliminary inquiry, Miazga had taken care not to ask the children questions that would elicit their previous allegations of ritualistic or satanic abuse. But he could not prevent it from coming out in cross-examination and becoming a major hurdle to the credibility of the children. Hansen testified that the prosecutors were aware this would become an issue at trial and solicited the assistance of an expert in an attempt to explain how the [R.] children could have made these allegations which even the investigating officer and the prosecutors say they did not believe.

[427] Miazga called Dr. Santa Barbara, a psychologist from Toronto, as an expert witness at the trial. She had been involved in a case or two that included elements of satanic ritualistic abuse in which a sophisticated effort had been made by the abusing adults to deceive the children into believing they were witnessing things that were really not happening. This might have provided an explanation for the bizarre allegations the [R.] children made if the nature and circumstances of the abuse they described was similar to that of the case described by Dr. Santa Barbara. But they were not. Additionally, the evidence clearly established that [R.], [R.] and White lacked the sophistication and means to orchestrate performances of the complexity required to deceive even young children about the nature and details of what they said they observed.

[428] Most of the details of the allegations made by the [R.] children of ritualistic or satanic abuse are to be found in their videotaped interviews which were not seen by the trial judge. She was accordingly not in a position to determine whether the hypothetical assumptions utilized by the expert witness in giving her opinion evidence were comparable to the ritualistic and satanic abuse allegations which had been made by the [R.] children. Yet the opinion of Dr. Santa Barbara was relied upon by Miazga to explain why the children had made those false allegations. Having explained that they were tricked into believing them, the fact they were false did not detract from their credibility. In my respectful view, this is one of the most blatant attempts at oath helping that I have seen.

[429] Fifth, through the dubious testimony of several self-professed child care experts, Miazga focused his case on the "needs" of the [R.] children and on the "extreme trauma" that they had to suffer by being required to testify and have their allegations challenged. This tended to mask or even justify the significant discrepancies of the children's evidence and, at times, to divert the focus of the trial from the real issue to be determined, namely whether [R.], [R.] and White were guilty or not guilty of the incredible allegations brought against them.

[430] Sixth, for the reasons set out in the case law I have cited, a prosecutor cannot bootstrap his or her position by relying on the decisions of a third party. The facts of some of those cases are similar to the facts of this case.

The Credibility Comments of the Preliminary Inquiries Judge

[431] The second event relied upon by the defendants is that the Provincial Court judge who conducted the two preliminary inquiries, supposedly said that he believed the testimony of the [R.] children. This is of no assistance to the defendants for three reasons. First, as mentioned previously, a prosecutor cannot bootstrap his or her position by relying on the decision of a third party.

[432] Second, it is well known that the function of a Provincial Court judge who conducts a preliminary inquiry does not include making assessments of the credibility of witnesses. It is limited to determine if there is a sufficient case to go to trial in accordance with the test set out in United States of America v. Sheppard (1977), 30 C.C.C. (2d) 424 (S.C.C.). Any statement the Provincial Court judge made about the credibility of the [R.] children did not have the weight of a judicial determination of credibility.

[433] Third, this evidence was introduced through the testimony of the two prosecutors on the basis of an exception to the hearsay rule. The statement was tendered as proof that it was made, not as proof of its truthfulness. Hansen and Miazga invited the judge out to lunch after the two preliminary inquires had been concluded but before the [R.], [R.] and White trial was to begin. I place little reliance on the alleged statement of the judge for four reasons. First, it is not the best evidence but is only second-hand evidence. The judge was not called as a witness to affirm or deny the statement attributed to him. The plaintiffs were not able to cross-examine him about his alleged statement, the context in which it was given or whether it was made with qualifications.

[434] Second, it is highly unusual and questionable for a judge to discuss an ongoing case with a party in the absence of the other parties. Although the judge had completed the preliminary inquiry by committing [R.], [R.] and White for trial, the trial in this court was still pending. One might ask what would have happened had the prosecutors attempted to adduce this evidence at the trial, whether by their own testimony or by calling the judge as a witness. Other oath helping witnesses were allowed to testify.

[435] Third, this same judge appeared to have grave reservations about the credibility of the [R.] children within a short time before he allegedly said the reverse to the prosecutors. In his reasons for committing the plaintiffs for trial after their preliminary inquiry that followed on the heels of the [R.], [R.] and White preliminary inquiry, he has this to say respecting the counts pertaining to the [R.] children:

. . . persuasive arguments were made to me that, in essence, said that I - in my view, said that I shouldn't believe the testimony. My function as a Provincial Court Judge presiding over a preliminary hearing . . . is not to make a determination of innocence or guilt but merely to decide whether there is before the Court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably could convict. It is not my function to weigh the evidence or to test its quality or reliability.

[436] Fourth, at the outset of the Klassen - Kvello preliminary inquiry, defence counsel jointly applied to have this same judge recuse himself on the basis that he would be required to make similar rulings to those he had made previously in the [R.], [R.] and White preliminary inquiry. He would also be required to hear from essentially the same witnesses that he had heard from before. Miazga successfully opposed the application on the basis that the judge would not be weighing the evidence or determining issues of credibility.

The Instructions of the Superiors of the Prosecutors

[437] The third event relied upon by the prosecutors is that on more than one occasion, the details of which I related previously, they sought the advice of their superiors and were told that if they still believed in the substance of the complaints, they should proceed with the prosecution. Again this is of no assistance to the prosecutors for three reasons. First, the advice of the superiors to proceed was qualified. I have previously outlined the ambiguity of this qualification. I also previously related the evidence on which I concluded that Miazga did not have an honest belief in the allegations of the children or in the probable guilt of all the plaintiffs on all the charges being prosecuted against them.

[438] Second, there is no evidence that the prosecutors informed their superiors of the full extent of the unreliability of the evidence of the children. Instead they emphasized how tired and traumatized the children had become by lengthy appearances in court. Had their superiors been informed of the sorry state of the case and the significant difficulties with the credibility of the children, it is highly unlikely that they would have instructed the prosecutors to continue despite whatever beliefs they may have had in the substance of the complaints. The sole consideration is not the subjective belief of a prosecutor. I have serious concerns that Miazga contacted his superiors not only to obtain their advice, but as well to attempt to minimize the risk of his exposure to liability if the whole case came crashing down around him as it eventually did.

[439] Third, for the reasons set out in the case law I mentioned previously, a prosecutor cannot bootstrap his or her position by relying on the decision of a third party even if that third party is a superior. The instructions or advice of a superior cannot justify an unlawful act such as the continuation of a malicious prosecution. If Miazga felt so insecure about the merits of his case that he had to continually obtain confirmation to proceed with it, he should have either stayed the charges or turned the case over to someone else. Nor can a prosecutor abrogate his professional responsibilities or offload them on a superior by using the advice of a superior as justification for his own wrongful actions. Even an employee in a master-and-servant relationship could not avoid liability on this basis.

[440] Miazga was exercising the powers and duties of the office of a prosecutor. As a Crown official and as legal counsel, he was an officer of the court with obligations not only to his employer, but to the court, his fellow counsel, the public and the plaintiffs who had been accused of the criminal offences. I previously cited the traditional legal description of the role of a prosecutor. That role does not permit a prosecutor to conduct himself as if he is counsel for child witnesses, for Social Services officials or personnel, for the police or for child therapists. Nor does it permit a prosecutor to forget that the object of a prosecution is not just to win. In fairness to a lawyer who has always been a prosecutor, and who deals for the most part with people who have committed serious and petty crimes, it is easy to become jaded about human nature and forget that some of the people that are accused of crimes are in fact innocent of them.

The Encouragement of the Preliminary Inquiry Judge to Proceed

[441] The fourth event relied upon by the defendants is the encouragement given to Miazga by the judge who conducted the [R.], [R.] and White preliminary inquiry. As mentioned previously, Miazga's confidence in his case was badly shaken when [M.R. 1] lied in the face of the court about keeping notes of the abuse.

[442] Miazga told the judge that he was late for court because [M.R. 1] was not telling the truth about the notes. The judge responds that, "It doesn't surprise me." Miazga told the judge that he wanted to think over the weekend about what position to take on Monday. He frankly states that there may not be sufficient evidence for a committal and that he may not want to proceed with the next preliminary inquiry. He says that he wants to consider the likelihood of getting convictions on any of the charges. The judge responds, "I must express my surprise that you would be considering that way. . . I personally would have - I mean it's not my function to assess credibility but, simply voicing my own -". Miazga interrupts and outlines several factors he must consider.

[443] This ill-advised encouragement by the judge cannot provide Miazga with justification to continue on with a malicious prosecution action. For reasons given respecting the credibility comments of the same judge, these remarks, although made in a courtroom in this instance, do not have the status of a judicial determination of any issue that bears on the case before me. As I outlined previously, the court is not privy to the same information that is available to the Crown or the defence. A court can rule on or make determinations of the issues before it. But it is not in a position to direct or give advice to either the Crown or the defence on how to conduct their respective cases.

[444] Only Miazga as the Crown prosecutor was in a position to make a meaningful decision as to whether he had a case that should be pursued or should be stayed. He could not abrogate his responsibility as Crown counsel by relying on a decision or direction of the preliminary inquiry judge. The comments of the judge do not constitute reasonable and probable cause to continue, nor do they nullify the malice evidenced by Miazga in continuing on with the prosecution with the knowledge that he did not have a credible case. Nor did Miazga's frank comments to the court about the weakness of his case provide him with justification to pursue that case.

The Reasons for Dismissing the Action Against Hansen

[445] The main strength of the plaintiffs' case, as I have detailed previously, is that they were charged and prosecuted on the basis of the allegations of the three [R.] children. The nature of those allegations cried out for a reasonable explanation as to how they could possibly be true in the circumstances. Miazga, Dueck and Bunko-Ruys had no reasonable and probable cause to initiate and continue the prosecution of the criminal proceedings against the plaintiffs. Dueck, Bunko-Ruys and Miazga acted in concert to pursue proceedings that would never have been pursued but for the involvement of each of them.

[446] The involvement of Hansen in the proceedings is markedly different from that of the other three defendants. She had little to do with Dueck and not much more to do with Bunko-Ruys. She was not involved in the case until after the initial charges were laid. As I have outlined previously, her involvement in the case was considerably less than that of Miazga. Although they prosecuted the plaintiffs jointly, the evidence demonstrates that she took a subordinate role. To her credit, she stayed most of the charges respecting the children for whom she was responsible when she lost confidence in their credibility. Miazga on the other hand failed to do so even when faced with three witnesses who were even more incredible than Hansen's witnesses.

[447] Hansen appeared throughout the proceedings to refrain from taking an aggressive approach. She was careful for the most part not to lead her witnesses in her examinations-in-chief nor was she overly protective of them when they were asked questions by defence counsel. She appeared to abide by the rulings of the court without contesting their validity. I am not aware of any instance in which she attempted to distort or stifle the evidence. I do fault her however for trying to excuse the inconsistencies of her child witnesses on the basis that such inconsistencies are to be expected in children's evidence. Although this may be true respecting collateral details, it is not true respecting material or substantive matters. She should have also been more concerned about previous recantations by some of the children and by previous statements by some of the children that indicated they had been told what to say. The charges she pursued against the plaintiffs on the basis of the equivocal allegations of M.K. were unjustified.

[448] With the reservations that I outlined earlier, her testimony demonstrated her careful approach to the task to which she was assigned. She says that she did not rely on the police occurrence report to become informed as to the allegations of the children. She was more convinced than was Miazga, of the necessity to review the videotaped interviews of the children for whom she was responsible, as well as personally interviewing those children. Both were required to determine what the children would say in court and how they would present their evidence. She took notes of those videotaped interviews. She told the children about the importance of telling the truth. She interviewed the children in a formal setting on a one-on-one basis, asking the parents and others to leave. She was careful not to lead the children in her interviews of them. She interprets the Saskatoon Sexual Abuse of Children Protocol as a direction to accept what the child said but then to investigate what was said. An allegation should not be rejected just because it came from a child.

[449] She says that she is cognizant of the burden on the Crown to present a credible case to the court on a standard of proof beyond a reasonable doubt. Her own belief is that a child, just like anyone else, can lie. She said she is of the view that the evidence of children can be filled with inconsistencies yet not be as flawed as the evidence of an adult with the same degree of inconsistencies. Although this is likely true, her statement begs the question of whether any witness, child or adult, would be credible if his or her evidence was filled with inconsistencies. She did acknowl edge however, that in either case the standard of proof beyond a reasonable doubt is the same.

[450] I have outlined these observations about Hansen's initial involvement in the case and her evidence respecting her views, to demonstrate what she knew about the case, what she says about her beliefs and what her conduct reveals about her beliefs.

[451] Because of partial recantations and inconsistencies in the evidence of three of the children, S.W.H., S.E.H. and S.L.H., Hansen eventually concluded, likely not long before the Klassen - Kvello preliminary inquiry was to begin on December 2, 1991, that she had lost confidence in them as witnesses and could not offer them to the court. On November 26, 1991, she advised Robert Borden of her intention to stay the charges respecting S.L.H. She did so, along with the charges respecting a second child, S.E.H. on December 2, 1991.

[452] Hansen had several interviews with the third child, S.W.H. on November 1, 8 and 26, 1991. She asked Marilyn Gray, another prosecutor, to sit in on January 2, 1992 for an independent opinion and to take notes respecting his allegation against S.K. and S.K., the two plaintiff "young offenders". S.W.H. changed his story again and she concluded for this reason and because of Gray's assessment that S.W.H. was not credible, that he had reached a level of inconsistency beyond which she could not offer him to the court. All remaining charges respecting his allegations were stayed by the Crown shortly before the preliminary inquiry ended. This left her with only two persons charged by only two children.

[453] I am not satisfied on a balance of probabilities that Hansen maliciously prosecuted the plaintiffs. The plaintiffs' case against her fails because they have not made out the third element of the cause of action against her. The nature of the allegations of the children with whom she was dealing was not inherently incredible as were those of the [R.] children. For the reasons I outlined previously, the nature of the evidence between the two groups of child complainants was vastly different. Hansen had one child complainant who was very credible, a fact acknowledged by each of the plaintiffs. That witness made no allegations of abuse against any of the plaintiffs.

[454] Hansen never saw the videotaped interviews of the [R.] children nor the Thompson notes because she was not responsible for the [R.] children. The only exposure she had to the [R.] children's allegations until the second preliminary inquiry was underway, was the two partial days of observing them in the first preliminary inquiry. She could not have known until later how incredible the [R.] children or their allegations really were. She never realized the extent of their inconsistencies that would have been demonstrated to her by the videotaped interviews. Because of the manner in which the prosecutors divided the division of labour, she was not under the same obligation as Miazga, to inform herself of any details and inconsistencies respecting the allegations of the [R.] children. She was primarily responsible for the other children assigned to her.

[455] When she initially prepared to present the witnesses who were her responsibility, she could reasonably take some comfort in the fact that charges had already been laid respecting the sexual assault allegations of the [R.] children. Those charges were against some of the same plaintiffs who were implicated in the sexual assault allegations of the children who were her responsibility. I am satisfied that Hansen had an honest belief in the guilt of all of the plaintiffs respecting all the charges brought against them by the child complainants under her responsibility.

[456] I am not satisfied that there was an absence of reasonable and probable grounds for her belief. The objectivity of her belief must be considered from the perspective of a reasonable person standing in her shoes, so to speak. On the basis of the factors I have previously outlined, I am satisfied that they constituted a state of circumstances that would reasonably lead an ordinarily prudent and cautious person, placed in the position of Hansen, to the conclusion that the plaintiffs were probably guilty of the crimes imputed to them on the basis of the allegations of the child complainants under her responsibility. Although I have serious reservations about the charges based on the allegations of M.K., I am not convinced on a balance of probabilities by those reservations of the lack of reasonable and probable cause in connection with them. The burden of proof has not been met by the plaintiffs that the charges were proceeded with by Hansen absent reasonable and probable cause.

[457] I now move on to consider whether the plaintiffs have proven that Hansen maliciously prosecuted them respecting the offences based on the allegations of the three [R.] children. For ease of reference, I will refer to these offences as the "[R.] charges" to distinguish them from the charges based on the allegations of the other children that were the responsibility of Hansen. I will refer to these charges as the "other charges". I previously concluded that Hansen had reasonable and probable cause to prosecute the "other charges" that were initially laid and to subsequently lay and prosecute additional "other charges". My reasons for so concluding do not necessarily apply to Hansen's "prosecution" of the "[R.] charges" even though it appears that she initiated some of the additional "[R.] charges".

[458] But I am satisfied that unless Miazga's primary involvement in and responsibility for the prosecution of the "[R.] charges" relieves Hansen of liability to the plaintiffs, she maliciously prosecuted them respecting the "[R.] charges". Her involvement and conduct respecting these charges satisfies each of the four elements of the malicious cause of action. The second element obviously applies. The third element is satisfied in that even if she did have an honest belief in the guilt of the plaintiffs respecting the "[R.] charges", which I seriously doubt, there were no reasonable and probable grounds to support that belief. The fourth element is satisfied by the numerous indicators of malice that I outlined previously. But the first element is in doubt, due to Miazga's primary involvement in and responsibility for the "[R.] charges" .

[459] I am troubled by the fact that Hansen did not, in the strict legal sense of the term, prosecute the plaintiffs for the "[R.] charges". They were in reality prosecuted by Miazga even though Hansen assisted in some respects and supported Miazga in his prosecution of them. But it does not follow from the simple fact that two prosecutors were involved in the overall prosecution of the plaintiffs, that they both maliciously prosecuted them on all the charges that were the subject of the prosecution. The malicious prosecution cases that I am aware of, do not address the type of case like the one before me where multiple prosecutors by agreement took different roles in the overall prosecution of the case. In many respects, the case involved two separate prosecutions that were conducted in common by different prosecutors. If this is so, the liability of the prosecutors should be considered in this context.

[460] The evidence satisfies me that even if Hansen had not been involved in the proceedings, the outcome of the prosecution of the "[R.] charges" would have been the same. Miazga would still be liable to the plaintiffs for the malicious prosecution of those charges but of course Hansen would not. It is more difficult to predict what would have pertained if Miazga had not been involved in the proceedings. Hansen became involved at a later date than Miazga not only in connection with the "[R.] charges" but also in connection with the proceedings themselves. She also had less initial involvement with the [R.] children than Miazga.

[461] If Hansen had been solely responsible for the proceedings, it is difficult to predict whether the outcome would have been the same. She may have lost confidence in the [R.] children and stayed the charges at an earlier stage in the proceedings than did

176 Miazga. In view of her demonstrated tendency to stay charges only as a last resort when the credibility of her child witnesses had become hopelessly impugned, I suspect she would have forged on despite the formidable odds. But this is primarily conjecture on my part. There is no solid evidence to support it as an inference.

[462] Although these considerations may be helpful to determine the unique nature of the prosecution of this case, it is evident that both prosecutors were very involved in it. Although the prosecutors had a common objective to convict the plaintiffs of the charges brought against them, they proceeded along different paths to realize this objective. I have already concluded that Hansen did not maliciously prosecute the plaintiffs respecting the "other charges". I have concluded as well that Miazga did maliciously prosecute the plaintiffs respecting the "[R.] charges". These findings were based on the same legal principles but on quite different facts.

[463] There is no evidence to suggest that Hansen did anything that encouraged Miazga to take a course of action respecting the "[R.] charges" that he otherwise would not have taken. Nor is there any evidence to suggest that she did or omitted to do anything that caused him to make or decline to make assessments or decisions respecting those charges that he otherwise would not have made or declined to have made. Hansen played a secondary role in the case from an overall perspective. She left all decisions respecting the "[R.] charges" to Miazga and even though she is undoubtedly a prosecutor in her own right, her role in this unique case respecting the "[R.] charges" was more that of an assistant to Miazga than a co-prosecutor.

[464] From a strict legal perspective, Hansen may have maliciously prosecuted the plaintiffs respecting the "[R.] charges" by assisting Miazga to do so. But from a functional perspective, she neither initiated nor continued these proceedings as a prosecutor in her own right. I am satisfied in the unique circumstances of this case that the plaintiffs have failed to prove the first element of their malicious cause of action against Hansen respecting the "[R.] charges".

[465] On this narrow ground, I conclude that the plaintiffs have not proven their malicious cause of action against Hansen and it is dismissed against her.

The Reasons for Allowing the Plaintiffs to Call Rebuttal Evidence

The Context of the Application

[466] At the close of the defendants' case, the plaintiffs applied for leave to call a rebuttal witness. The witness of her own accord had contacted Robert Borden, one of the counsel for most of the plaintiffs, three days before the defendants closed their case. The witness, Amy Jo Ehman had been a CBC reporter in the spring of 1991 and related to Mr. Borden a conversation she had with Dueck at that time respecting his investigation. The plaintiffs sought to introduce her evidence on the basis that it pertained to malice, a material element in the case. She had heard that Dueck had testified at this civil trial that he did not believe the ritualistic and satanic aspect of the children's allegations. Her proposed evidence was to the effect that, as a CBC reporter, she had been advised by Dueck in 1991, before the charges were laid, that he did believe this aspect of the case. [467] I was somewhat confused as to the nature of the plaintiffs' application. Robert Borden stated that the application was to call rebuttal evidence, not to reopen the plaintiffs' case. He said that the proposed evidence was tendered to show that Dueck had malice in that he was in effect telling the public through the media that the case involved ritualistic and satanic abuse when he had no belief in this aspect of the case. Yet he maintained that the plaintiffs were not attempting to bolster their case with the newly discovered evidence but tendered it to contradict Dueck's evidence as to what he said about the case to others, an issue which he said had not been addressed as part of the plaintiffs' case. He also maintained that this was a material issue, not a collateral one and that it involved Dueck's credibility.

[468] The application was opposed by counsel for Dueck. He contended that the plaintiffs had been aware long before the trial of the issue of Dueck's belief respecting this aspect of the case. He referred to portions of Dueck's examinations for discovery in which he testified that he did not believe in the ritualistic or satanic aspect of the case. This testimony was read in by the plaintiffs as part of their case. Counsel for Dueck maintained that the proposed rebuttal evidence constituted a challenge to Dueck's testimony on a collateral matter and accordingly violated the collateral fact rule. He also maintained that Robert Borden had failed to disclose to the defendants and the court, in a timely fashion, that he would be seeking to call Ehman as a rebuttal witness. Although Dueck was no longer on the witness stand when Robert Borden learned that Ehman was a potential witness, Miazga was still on the witness stand.

[469] Robert Borden, with knowledge of Ehman's potential testimony, availed himself of the opportunity to cross-examine Miazga on matters that touched on Dueck's beliefs in the ritualistic and satanic aspect of the case. Robert Borden never advised counsel for the defendants or the court that he would be applying to call Ehman until Sonja Hansen had subsequently given evidence and the defendants had closed their case. Counsel for Dueck said that had he been aware of Ehman as a potential witness, he could have interviewed her and would have availed himself of the opportunity to ask questions of either of the prosecutors on this issue. He submitted that Dueck would be prejudiced if the plaintiffs were allowed to reopen their case or to call rebuttal evidence. Counsel for the other defendants took no position on the application provided the proposed witness did not refer to any of the other defendants in her testimony.

[470] Counsel for Dueck was not available to attend trial the following day, a Friday, so I reserved my decision on the application until the trial reconvened the following week. Over the weekend I received further written submissions from counsel respecting the issue of when Robert Borden was first contacted by Ehman and when he first disclosed to counsel for the defendants that he might be applying to the court for leave to call her as a rebuttal witness. When the trial resumed, I provided counsel with the opportunity to make any further submissions on the plaintiffs' application and, in particular, on the late disclosure issue referred to in the correspondence. I granted the plaintiffs' application to call rebuttal evidence with reasons to follow.

[471] As a condition of granting the plaintiffs' application, I granted leave to Dueck to call such surrebuttal evidence respecting the issue raised by the rebuttal evidence that his counsel deemed advisable. I was prepared to adjourn the trial, if necessary, to allow him to make arrangements to call or recall any witnesses in this respect. I also indicated that I was prepared to consider addressing the late disclosure issue with an order of costs against Robert Borden if Dueck wished to pursue the matter. I proceeded to hear the rebuttal evidence of Ehman which consisted of examination-inchief by Robert Borden and cross-examination by David Gerrand. She was on the witness stand for only a few minutes. Dueck elected to call no further evidence and I heard the final submissions on behalf of the parties on the case itself. My reasons follow for allowing the plaintiffs to call rebuttal evidence.

The Law Pertaining to Rebuttal Evidence and Reopening a Case

[472] The plaintiffs relied upon R. v. Krause, [1986] 2 S.C.R. 466. The case sets out many of the principles to be considered by the court in an application of this nature but the ultimate outcome of the case does not assist the plaintiffs. The court overturned the conviction of the accused and directed a new trial on the basis that the trial judge had erred in permitting the Crown to call rebuttal evidence. There are however several more recent appeal court decisions on this issue in the context of criminal cases. There are also a few appeal court and trial court decisions in civil cases that deal with this issue.

[473] It is trite law that neither a plaintiff nor the Crown can split its case by adducing evidence under the guise of reply evidence or by means of reopening its case. See J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999), para. 16.158. It is also clear from the case law that there is a high onus that must be met by an applicant desiring to call rebuttal evidence or to reopen its case. Because of the significant potential for prejudice to an accused, the threshold is somewhat lower in civil cases than it is in criminal cases. Usually a new trial is directed in a criminal case if rebuttal evidence is improperly admitted. The law is also clear that adducing rebuttal evidence and reopening one's case are distinct issues.

[474] A recent case in our Court of Appeal, R. v. Fisher, 2003 SKCA 90, [2003] S.J. No. 597, reviews many of the cases on this issue. The conclusion of the court was that the trial judge did not err in allowing the Crown to adduce rebuttal evidence. Sherstobitoff J.A., writing for a unanimous court states at para. 83: 83 The Supreme Court of Canada in R. v. G. (S.G.), [1997] 2 S.C.R. 716, defined the difference between allowing the Crown to re-open its case and allowing the Crown to call rebuttal evidence as follows at p. 737: [39] In particular, the Crown should not be permitted to gain the unfair advantage which will inevitably arise from "splitting its case". The rule against "splitting the case" developed primarily in the context of applications to adduce rebuttal evidence by the Crown. Applications to adduce rebuttal evidence and to reopen the case are "close cousins", but not "identical twins": R. v. F.S.M. (1996), 93 O.A.C. 201, at p. 208. Rebuttal evidence is properly admissible where the matter addressed arises out of the defence's case, where it is not collateral, and generally, where the Crown could not have foreseen its development: R. v. Krause, [1986] 2 S.C.R. 466, at p. 474; R. v. Aalders, [1993] 2 S.C.R. 482, at pp. 497-98. With rebuttal evidence, it is the rules of the adversarial process that justify the admission of the reply evidence. In an application to reopen, the Crown is required to establish that the evidence is material to an issue that is properly part of the Crown's case. In order to succeed, the Crown must also explain why the evidence was not led earlier and must justify this departure from the normal rules of the adversarial process. See F.S.M., supra, at p. 208.

[475] In the circumstances of the case before me, the plaintiffs would also be entitled to the exercise of the court's discretion to permit them to reopen their case to admit the proposed evidence. Although the plaintiffs proffered the evidence on the basis of rebuttal evidence, they contend that it is material to an issue that is properly part of its case, namely the issue of malice. They obviously did not lead the evidence as part of their case because they were not aware of it when their case was closed or even when the defendants applied for their non-suit motions. The plaintiffs did not become aware of the potential evidence until the defendants were well into the presentation of their case.

[476] I will refer to some of the recent Supreme Court of Canada decisions in criminal cases that elaborate on the principles to be applied in considering whether rebuttal evidence (which is often referred to as "reply" evidence) should be allowed. In R. v. Chaulk, [1990] 3 S.C.R. 1303, at paras. 116 to 121, the court upheld the admission of rebuttal evidence respecting insanity. In R. v. Biddle, [1995] 1 S.C.R. 761 at 778, para. 30, the court held that the admission of rebuttal evidence by the Crown respecting alibi was improper and that the resulting prejudice to the accused could not be cured by granting the accused the right to call surrebuttal evidence. In R. v. Melnichuk, [1997] 1 S.C.R. 602, a new trial was ordered because the trial judge had permitted the Crown to 182 adduce rebuttal evidence (respecting the granting of a mortgage) in breach of the collateral fact rule.

[477] I have also considered R. v. S.G.G., [1997] 2 S.C.R. 716, a decision in a criminal case referred to in the quotation from the R. v. Fisher decision cited above. It elaborates on the principles to be applied in considering whether the Crown should be permitted to reopen its case. A new trial was ordered because just before counsel were prepared to address the jury, the trial judge permitted the Crown to reopen its case and call a material witness who could place the accused at the scene of the crime. The court held that the discretion of the trial judge to permit the Crown to reopen its case narrows as the case proceeds. The primary consideration is the potential prejudice to the accused and this usually cannot be cured by allowing the accused to take the stand and testify in response to such evidence.

[478] R. v. P.(M.B.), [1994] 1 S.C.R. 555 is to the same effect. In that case the Crown was permitted to reopen its case before the defence called evidence but after stating its intention to call alibi evidence. A Crown witness was recalled to correct her previous evidence respecting the date the accused lived in her house, an issue related to the date of an alleged sexual assault. The decision of the Ontario Court of Appeal quashing the conviction was upheld.

[479] These criminal cases illustrate that only in exceptional circumstances is the Crown allowed to adduce rebuttal evidence or to reopen its case. The primary consideration is the potential prejudice to the accused. But newly-discovered evidence is one of the factors the trial judge can consider in the exercise of the discretion to permit rebuttal evidence. In R. v. Proctor (1992), 69 C.C.C. (3d) 436, the Manitoba Court of Appeal upheld the decision of the trial judge to permit the Crown, after the case for the defence was closed, to adduce the evidence of statements made by the accused to a psychiatric nurse. This evidence was not known to the Crown beforehand. The accused's defence was insanity. Although a new trial was ordered on other grounds, the court upheld the decision of the trial judge to permit the Crown to adduce the rebuttal evidence. This case was quoted with approval in R. v. Fisher, supra, para. 86.

[480] There are not many civil cases that elaborate on the principles to be considered by a trial judge when confronted with an application by a plaintiff to adduce rebuttal evidence or to reopen its case. Some cases merely adopt the principles set out in the criminal cases I have referred to. See Allcock, Laight & Westwood Ltd. v. Patten et al., [1967] 1 O.R. 18 (C.A.). In that case the trial judge was found to be in error in admitting rebuttal evidence that was in reality confirmatory only of the plaintiff's case. But in Sood v. College of Physicians & Surgeons (Saskatchewan), [1996] 2 W.W.R. 668 (Sask. Q.B.), the court held that rebuttal evidence called to counter the testimony of a defence witness that was of the nature of alibi evidence, did not constitute a splitting of the case for the College. It was not a case of the College calling evidence to buttress its case on matters it was required to prove to establish its case.

[481] There is a discretionary power vested in a trial judge to allow a party to reopen its case to introduce evidence even though that evidence may not be the proper subject of reply. Sopinka, supra, at para. 16:159. Most civil cases that address the issue of reopening a case pertain to applications made after judgment has been entered. In some provinces there are rules of procedure which apply to such applications. That is not the case before me. It is sufficient to observe that the trial judge has a wider discretion in allowing a plaintiff to reopen its case before judgment has been entered. See A.W. Mewett, Q.C. & P.J. Sankoff, Witnesses, vol. 1 (Toronto: Carswell (current to Rel. 2003- 1)), at para. 2.5(c)(i):

(c) Re-Opening the Case

(i) Civil Cases

While this will normally constitute the totality of the evidence in the case, it is possible for the trial judge, in his or her discretion, to permit a party to "re-open" the case, after it has been closed. In civil cases, an application to reopen may be made after the evidence has been completed but before judgment has been delivered, after judgment has been delivered but before that judgment has been entered and after judgment has been entered. Needless to say, in the first two cases, the discretion of the trial judge is wider than in the last case, and will basically depend upon his or her view of whether the interests of justice demand it-usually because a party has been misled in some way by the other or because of some inadvertence on his or her own part. Most of the Rules permit re-opening in some form or other. . . .

[482] The historical rationale for the rule against splitting one's case in a civil action is set out in J. Sopinka & S.N. Lederman, The Law of Evidence in Civil Cases, (Toronto: Butterworths, 1974) at 517, as follows: At the close of the defendant's case, the plaintiff has a right to adduce rebuttal evidence to contradict or qualify new facts or issues raised in defence. As a general rule, however, matters which might properly be considered to form part of the plaintiff's case in chief are to be excluded. A plaintiff is therefore precluded from dividing his evidence between his case in chief and reply, for two very practical reasons: ". . . first, the possible unfairness of an opponent who has justly supposed that the case in chief was the entire case which he had to meet, and, secondly, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning."

[483] The dynamics of a civil case are quite different from those of a criminal case. The potential of prejudice to a defendant by the admission of rebuttal evidence in a civil case is often less than that to an accused in a criminal case. On the other hand, the potential for "the interminable confusion that would be created by an unending alternation of successive fragments of each case" is greater in a civil case than a criminal case. It would appear that the courts are beginning to move away from the "categories" approach to this issue and take a more principled or functional approach, much like what has been taking place in the law of evidence where decisions are driven by the circumstances of each particular case.

The Ruling on the Application

[484] I concluded in the case before me that although the proposed evidence related to a material element of the plaintiffs' case that they are required to prove, the evidence was not known to the plaintiffs, nor could it have been known to them through proper diligence, when they closed their case. The admission of the evidence would not contravene the collateral fact rule as the evidence pertained to a substantive issue in the case rather than a subsidiary issue. In any event, even if it did pertain to a collateral fact, it would contradict a previous inconsistent statement made by Dueck respecting his belief about the ritualistic and satanic aspect of the case. As such it would constitute a recognized exception in law to the collateral fact rule and because Dueck is a party to the action, it would be admissible for the truth of its contents under the admission exception to the hearsay rule. See Sopinka, supra, at paras. 16.133-134 and 16.172. [485] In the circumstances, I concluded that the plaintiffs were entitled to reopen their case to introduce the proposed evidence and were also entitled to the admission of it on the basis of reply evidence. I was of the view that any potential prejudice to Dueck could be addressed by affording him the opportunity, accompanied by an order for costs, to give surrebuttal evidence himself or to call such evidence from the prosecutors or from any other witness with relevant evidence respecting the issue at hand. Dueck alleged no prejudice other than the loss of the opportunity to examine the two prosecutors on this issue. His belief on the issue was before the court in the read-ins from his examinations for discovery. He confirmed this evidence by his testimony at trial. It is unlikely that he would have conducted his defence or given his evidence differently even if he had been aware of the newly discovered evidence.

[486] I also considered the respective appeal consequences of allowing or disallowing the rebuttal evidence. It would not be available to the Court of Appeal if I disallowed it. If I was found on appeal to have erred in disallowing it, the Court of Appeal might well have no option but to order a new trial at tremendous cost and inconvenience to the parties. On the other hand, if I am found on appeal to have erred in allowing it, the Court of Appeal can ignore the rebuttal evidence and can likely render its decision without ordering a new trial.

The Disposition of the Case Itself

[487] The parties to this action previously consented to an order of Dovell J. severing the trials of the issues of liability and quantum of damages and deferring the determination of costs until the quantum of damages is determined. I conclude that the defendants, Matthew Miazga, Brian Dueck and Carol Bunko-Ruys, maliciously prosecuted the plaintiffs. They are entitled to have judgment against these defendants in the amount to be subsequently determined. I conclude that Sonja Hansen did not maliciously prosecute the plaintiffs. The plaintiffs' action against her is dismissed.

[488] The parties reached an agreement that the Estate of Richard Quinney would be neither entitled to costs nor liable for costs respecting the action. I direct that the default costs provisions in The Queen's Bench Rules shall not apply to the dismissal of the action against the Estate of Richard Quinney or against Sonja Hansen, nor shall they apply to the judgment granted against Matthew Miazga, Brian Dueck and Carol Bunko- Ruys.

The Counterclaim

[489] Matthew Miazga and Sonja Hansen, two of the defendants in the main action, are the plaintiffs in the counterclaim against Richard Klassen. Richard Klassen is one of the plaintiffs in the main action and the sole defendant in the counterclaim. The Estate of Richard Quinney abandoned its counterclaim against Richard Klassen by agreement of the parties on the basis that no party would be entitled to costs nor liable for costs respecting the counterclaim. The evidence in the main action, by the agreement of the parties, was applied to the counterclaim. Portions of the examination for discovery of Richard Klassen were read in as evidence. No oral testimony was adduced by any of the parties because the whole of the evidence adduced in the main action applies to the counterclaim.

[490] Counsel for Miazga and Hansen suggested at trial that the outcome of the counterclaim would likely be governed by the outcome of the main action. If the plaintiffs were successful in the main action, the counterclaim should be dismissed and vice versa. But as there has been mixed success in the main action, I must consider the counterclaim on its merits.

[491] Miazga and Hansen, the two prosecutors, claim that Richard Klassen published and distributed two posters and a letter that contained statements of fact that defamed them. Richard Klassen resists the claim on the basis that any statements contained in the posters and the letter were true as established by the evidence in this trial and any expressions of opinion constitute fair comment as defined by the law. He also contends that the first poster was not authored or published by him but he admits that one or two copies may have been inadvertently distributed by him in conjunction with the distribution of other papers. The words in the posters and letters relied upon by Miazga and Hansen as defamatory are as follows:

(a) in a document distributed widely including the postering in public places in Saskatoon at various times since February 10, 1993:

"crooked prosecutors Sonia Hanson (sic), a crooked prosecutor, used the above manufactured evidence to advance her career.

Matt Miazga, a crooked prosecutor, used the above manufactured evidence to advance his career."

(b) in a document over the signature "Richard Allen Klassen" distributed widely including by postering in public places in Saskatoon at various times since February 10, 1993 included the following entry:

"I, Richard Allen Klassen, demand that Crown Prosecutor Matt Miazga be arrested for covering up the rape and sodomy of an eight year old girl, in order to keep his manufactured case together. I, Richard Allen Klassen, demand that Crown Prosecutor Sonia Hanson (sic), be arrested for covering up the rape and sodomy of an eight year old girl, in order to keep her manufactured case together.

(c) in a letter dated November 11, 1993 and distributed widely including by postering in public places in Saskatoon at various times since February 10, 1993 included the entry: "Crown Prosecutor Matt Miazga should be held criminally responsible for aiding and abetting the criminal actions of the aforementioned people."

[492] Some of the terms used, and the context in which they are used, are capable of different interpretations. Given a contextual yet literal interpretation, the statements of fact are not actionable because they have been proven to be true. In the circumstances of this case, the remaining terms are not actionable because they are expressions of opinion or desire and constitute fair comment.

[493] The publication and distribution by Richard Klassen of these kinds of materials was foolish. In most circumstances they would be defamatory. He unnecessarily risked incurring liability to the prosecutors for damages. But in view of what he suffered at the hands of the prosecutors and others involved in the criminal proceedings wrongfully brought against him, his frustration is understandable. Fortunately, he redirected it into the considerable effort he has been required to expend in the preparation and presentation of his civil case. It has provided him with a much more effective and beneficial remedy than he could have ever achieved through his posters or letters.

[494] The counterclaim of Matthew Miazga and Sonja Hansen is dismissed against Richard Klassen. I direct that the default costs provisions in The Queen's Bench Rules shall not apply to the dismissal of the counterclaim against Richard Klassen. The issue of costs shall be deferred until the issue of the quantum of damages is determined in the main action. J.

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