Richard Klassen's Excellent Day: Bravo!
October 1: McKillop and Gerrand argued their non-suit application and torte for three hours. They argued that the case should not proceed because no evidence of wrong-doing has so far been presented. They also argued that no inferences of malice or conspiracy could be made from what the plaintiffs have so far provided the court. Their clients were only doing their jobs and did so properly, they argued.
October 2: Robert Borden presented his book of authorities to the judge, citing a January, 2003 Ontario case, Ontario v. Folland which referred to both the Benoit Proulx and Oneil cases regarding malicious prosecution. He argued that if since the judge is being called upon to clarify exisiting law or make new law, the process should be towards opening up the process rather than narrowing it further. (He also referred to the case of Alain Andre which has also been upheld by the Supreme Court. On October 3, Folland was also upheld.)
Borden went through some of the evidence before the court and had not yet finished at 5. He will finish up Friday morning and Richard Klassen will complete the presentation for the plaintiffs.
October 3: Richard Klassen drew a roadmap to simplify the case. Using the 30 page Information which Dueck had given first to Terry Hinz and then to Sheila Verway, he showed how any prudent and reasonable person would have responded as they did. He then argued that essentially the same information was presented to Matthew Miazga. There were two additional pages reporting on his interviews with the Red Deer Klassens by the time it reached a judge.
He noted three glaring inconsistencies among this information, the interview tapes and Marilyn Thompson's notes. He told the judge that a comparison of these exhibits shows many more.
The Thompson notes were not disclosed to any of the accused before they went to preliminary hearing.
The information clearly states that the investigation arises out of the arrest and eventual conviction on sexual assault against a neighbour girl by Peter Klassen. In that case, Peter Klassen pled guilty to one count of sexual assault against one girl and received a sentence of nine months. In his information, Dueck states that he pled guilty to two counts and received an 18 month sentence.
In Dueck's Information, he refers to a letter written by Social Services to Richard Klassen in 1989 where Norma Rivard, on behalf of the department, apologizing for the action of social workers who had improperly released information to Richard Klassen's sister regarding an investigation of Hugh (Beck) Stonechild currently under investigation. Dueck represents the letter as being something other than it was.
Dueck presents Michael's removal from Dale and Anita Klassen's home as being on the initiative of Social Services rather than as at Dale and Anita's request.
Richard Klassen then showed how prosecutor Matthew Miazga participated in the malicious prosecution. Kathy had failed to make any allegations against Richard, Kari, John or Myrna Klassen. Dueck, when examined during the discovery process states he did not want charges laid against those particular accused regarding that particular child. Miazga went ahead and laid the charges. After being interviewed by Miazga, Kathy made allegatiions against them at the preliminary hearing. Klassen pointed out that while it is permissable for a prosecutor to prepare a witness to testify in a hearing that it is not permissable to gather new evidence during this process.
Throughout the entire time, from 1989 until the staying of charges, the Ross children were receiving therapy from Carol Bunko-Ruys. Richard Klassen pointed to a part of one of the children's soft room videotapes showing Carol Bunko-Ruys in a therapy session with Michael before Dueck enters the room to begin the disclosure session. That portion had not been disclosed to any of the defendants.
"Improper disclosure is why I was arrested on July 10," Klassen stated. Dueck did not properly represent the evidence he had to the prosecutor. Matthew Miazga went on holidays and when he came back, the wheels were already in motion. He, in turn, failed to provide exculpatory evidence. "If I had had this in my hands," said Klassen, waving the information, I might have represented myself at the preliminary hearing. I might have had the confidence to show these inconsistencies to the judge and the case might have ended right there.
Gerrand and McKillop had little to offer by way of rebuttal. Gerrand objected to Borden's presentation of the videotaped interview of Anita Klassen as malicious. "It was her past history which caused her to collapse," he said. I thought I saw the judge's jaw drop when he said this; mine certainly did.
Of course, gross insensitivity or even cruelty in the course of interviewing a suspect do not necessarily constitute malice. Nor does hostility, as CTV stated in its Thursday report of the trial. It must be shown that actions taken were for a purpose other than furthering the administration of justice. If this trial continues, and the defendants put Dueck on the stand, we will get to hear his reasons for conducting himself as he did in that interview. And a whole lot more.
So far there is enough uncontested evidence to establish malice, i.e. a primary purpose other than that of carrying the law into effect.
The trial adjourned on October 3 to allow Judge Baynton to consider the evidence in response to the defendant's motion to dismiss the case because it had no merit. On October 27, Judge Baynton re-opened the trial with an Historical Decision.
Malicious prosecution lawsuit stands: Plaintiffs' prima facie case for conspiracy and "tainted, tunnel vision" has been made, judgment states
October 27: Richard Quinney has been dropped from the claim and a claim for false imprisonment was dropped. Otherwise, QB 271, 1994 stands.
Defendants Brian Dueck, Carol Bunko-Ruys, Matt Miazga and Sonja Hansen have until tomorrow morning at 10 to choose a course of action.
The courtroom was filled. The plaintiffs were all present (except Anita Klassen, who was working in Red Deer). Of the defendants, only Dueck was there, accompanied by Supt. Murray Zoorkan and Sgt. Neil Wylie. Several other police were present, as well as lawyers and prosecutors.
The judgment is 40 pages long. At the bottom of page 30: " . . .Based on the considerations set out in the case law I have oulined, I am satisfied that a reasonable person could draw an inference from all this evidence, including the conclusion that there was an absence of reasonable and probable cause, that Bunko-Ruys and Dueck had malice."
And, at the bottom of page 31: " . . . Based on the considerations set out in the case law I have related, including the public duty associated with the office of a prosecutor, I am satisfied that a reasonable person could draw an inference from all this evidence, including the conclusion respecting the absence of reasonable and probable cause that I outlined previously, that Miazga and Hansen had malice."
It is hard to be gracious in the face of such a stunning victory. There have been many hugs and cheers and tears of joy. We all know that there are people throughout the country who are watching this case. We are sitting inside a bubble of legal history.
Richard Klassen, representing himself, pushed this case forward and put it all together. It was a huge task. Robert Borden came through in the final days. But generally, Klassen had to spend his time swatting off nay-sayers and pessimists. The victory today has put paid to all discouragers. Make that Paid in full. Almost.
The defendants' lawyers are no doubt huddling right now trying to determine if they have any moves left. Stay tuned.
October 28: Dueck joined Saskatoon Police Service in 1971 after completing grade 12 in Hague. He's been married to the same woman for 30 years, has 2 kids and twin grandchildren. He didn't receive any training regarding interviewing sexually abused children. He followed protocol. This testimony, elicited from his counsel David Gerrand this morning. The court got to hear in person the same voice we had already heard during hours of videotapes.
Matt Miazga and Sonja Hansen made their first appearance since the opening morning, sitting at the back of the court room. Carol Bunko-Ruys was not there.
Gerrand skipped around during the first hour and a half of his examination in chief, staying with the early days of Dueck's investigation, getting warmed up before he has to tackle the claims of malice and conspiracy his client faces.
(Also present in court this morning was Johanna Lucas whose husband, John, remains in custody after being arrested September 15. Johanna was also arrested that day. She was kept in custody long enough for the RCMP to use the keys to her house in rural Saskatchewan and remove computers and files. She was released and charges against her dropped. The material was returned to her 30 days later. This would seem to be a creative, but illegal way of circumventing a search warrant. Johanna asked me if there had any attempt to seize my files. So far, this has not happened. As I have posted publicly to the RCMP since launching the website in 1998, if you want information, just ask me. -- Sheila Steele)
Court resumed at 1.30 with Dueck continuing to insist that he did everything in exemplary fashion. He did what prosecutors told him to do. He didn't make notes (it might interfere with the children's testimony) and anything important, he wrote on the file. Moreover, he didn't really believe the Satanic cult aspect of the children's testimony. (Earlier in the day, he had said that he followed protocol which, at that time, was to believe the children). He claimed he saw Marie Klassen though the window walk to her wheelchair before answering the door. He wasn't sure if he talked to Matt Miazga before he went to Prince Albert to intrview Beryl Stonechild, but he gave him a report afterwards. He went with the last tape recorder on the shelf, an old fashioned one with a built-in speaker, he said, by way of accounting for the inaudibility of much of the tape he came back with.
Why did he not disclose this tape earlier? He thought he had. Boxes of tapes went through many lawyers' offices. things get lost. How did Kari Klassen get charged woth assaulting Kathy Ross when Kathy made no disclosures against her? Human error. This went on until 4.30. Tomorrow morning, Gerrand will finish his exam and the plaintiffs then get an opportunity to cross-examine.
The day did little to enhance Dueck's credibility, which would, I assume, be the main reason for placing him on the stand.
October 29: Richard Klassen is finally getting to live the moment he has been waiting for for a dozen years.
He is living it to the fullest.
One by one, discrepencies and contradictions are being presented to Dueck. Dueck has a set of stock answers. Occasionally he launches into a lecture about the problems of times long gone -- thirteen years is such a long time ago -- and at one point, when he said "You have to understand . . ." Klassen said, "I'm trying" and the entire courtroom smiled.
What we are all trying to understand is how he got started on this case in the first place. Well, Dueck said, it originated with a complaint from Social Services. He had interviewed the Ross children and one of Pam Klassen's foster children in 1989 but there were no disclosures. Because there were no disclosures, no note was made of the interviews. When he came to file his first occurance report in 1990, he referred to the previous interview. Was this from memory? Was it from the Social Services file? Well, it is all pretty hard to trace if you don't keep notes.
Sept. 27, Ron Schindell testified he made a report and now it is gone. Dueck testified today that he asked Schindel to make a report but he didn't. Social worker Carol Middleton wrote, however: " . . .Corporal Shindell chose not to interview Michael on videotape or with any observing social workers. He spent time alone with Michael then asked me to come into the room due to Michael's multitude of disclosure i.e. the large number of people who have abused his parents, uncles, aunts, etc. Corporal Shindell felt that Michael was too confused to believe and may be projecting a past abuse on the Klassen family. The only person he was inclined to believe as an abuser was Peter Klassen Sr. . . ."
Schindell's unrecorded interview with Michael took place before Dueck had generated his first occurance report. Dueck was clearly displeased with Schindell for talking to a witness in what he believed to be his case. How it came to be Dueck's case is still somewhat mysterious, although he did acknowledge testimony he made at the Ross Ross & White proceedings where he said he had been working it since 1989.
Klassen's questioning of Dueck revolves around reasonable and probable cause. Nineten people were arrested as a result of his information. Hundreds of charges were laid. Certainly those laid regarding Ross Ross & White have all been quashed by the Supreme Court of Canada. The question Dueck has to answer is just what prompted him to lay all these charges in the first place.
Dueck is having a tough time showing his actions were prompted by anything but malice.
The cross-examination continued all afternoon.
Dueck claimed he based his reasonable and probable cause for charging several of the people on testimony from Michael, who claimed to have seen certain adults abuse certain children despite those children disclosing nothing themselves. Klassen referred to a chart that had been made, not by Dueck himself but by someone who was trying to sort out who to charge, based solely on the diclosures made by the three Ross children in the videotaped interviews. Dueck had no real answer for why there were no charges laid regarding abuses Michael alleged witnessing on the Klassen's own children. He was also unable to answer exactly when it was he stopped believing in the baby killings and cult aspects of his case. Did he tell anybody else that he did not believe in all the allegations? He couldn't recall or he wasn't sure.
Regarding his ignoring requests for lawyers when he interviewed adult Klassens and Kvellos, he claimed that that was how things were done in 1991. Although the law had not changed from the time he trained in 1971 until now, he said that police policy shifted according to "what the courts would allow." Because of charter cases since 1991, he would not ignore such a request today, he said. He pointed out that when Dale insisted on his right to speak to a lawyer, he was allowed to do so and when he came back and said he was leaving, he freely left. Dueck was not aware that Anita had asked for a lawyer eight times.
The court learned something new today. In learning how to interview suspected adult child abusers, Dueck engaged the assistance of Rod Moore who provided a critique of his interviews with Diane and Dennis Kvello. This curious paper of notes had been previously unidentified: it contained such bits of advice as to cross one's arms to encourage the suspect to do so, etc. Although Dueck had interviewed the Kvellos before going to Red Deer, he was not sure whether he made use of Rod Moore's critique in those interviews. Rod Moor was in the Saskatoon Police Department in 1991 and was used extensively in the Martensville trials. After those trials flopped, he got the Service to pay for a blood splatter course and moved to Ontario. This is the first direct link the court has heard between this case and Martensville.
Dueck did not like the words "tainted" and "contaminated" but agreed it was important not to lead or otherwise influence child witnesses. He claimed he did not read Marilyn Thompson's papers before interviewing the children. Klassen provided him with direct evidence that he had done so, regarding a gorilla mask Michael claimed his mother wore on Halloween to abuse him. In the Thompson notes, he describes her as wearing a black outfit with the mask. The next day, he claims she was always wearing nothing when she abused him. The tape adjourns and then resumes and Michael says yes, she wore a long black outfit. The notes were made the night before the interview. Nonetheless, Dueck maintained he did not read them.
A childwitness who was interviewed by Dueck's partner, Jim Walker says on tape that his dad had told him to say that Pam had abused him. Dueck agrees that this a leading question and agrees that no charge should have been laid based on that evidence. He is apparently surprised to learn a charge was laid.
Richard Klassen will resume cross-examining Dueck tomorrow and then Robert Borden will take over. They expect to be finished with this witness tomorrow.
October 30: Cross-examination of Dueck continued. Court started half an hour later than usual to allow Richard Klassen to attend at Provincial court to appear before judge Barry Singer regarding the crown's failure to disclose its case on the noise charge it laid July 10. The Crown eventually stayed the charge, after an interesting discussion about the free speech issues. The Crown had wished to amend its information to change "causing a disturbance with a megaphone" to "causing a disturbance by shouting." Klassen noted that the megaphone had been seized as part of the evidence. He also noted that he had not been provided with disclosure as previously ordered. Crown proseutor Black said she could have the disclosure ready for a week from Friday, but then stated that her bosses in Regina had instructed her to allow Klassen to admit he had broken the law in return for stay. Klassen told the court that he had no problem admitting that he caused the disturbance and said that since it was getting cold and he had pretty well "run the gamut" of his issues with the police, he would not likely be demonstrating at the police station in the near future. There was no admission of any lawbreaking and Singer said he would be very reluctant to limit Klassen's right to speak. Klassen got his stay and the Crown saved a little bit of face in this ridiculous proceeding. The case ended with everyone in good humour, with Judge Singer making a point that he did not see any reasons for any nonpublication orders regarding this case. (This has been clarified from yesterday where the report mistakenly led readers to believe Klassen pled guilty.)
Klassen got over to Queen's Bench in lots of time to take up his cross examination of Brian Dueck. Dueck explained the fact that he had no taped recording of Marie Klassen's arrest, although he had taped the Rosses' arrest just previously and Pamela Klassen immediately afterwards, by saying his batteries went dead. He said he did not discover this until he had got back to the police station. He was vague about just how the new batteries got into the tape machine. He also stated that although he spend 15 minutes at Marie Klassen's house, and that she had called Daryl LaBach, he saw no reason to talk to her. She was agitated, he said, and agreed with Klassen's term "angry" to describe her response to being arrested.
Dueck maintained his claim that after he rang the bell, he saw her get up from one chair and walk to her wheel chair, approximately 8 feet away, he said. He could not say whether she had any difficulty rising, walking, or reseating herself, or the speed with which she did these things. In another written document, he has stated that he saw her "scoot across the room."
All of this cross-examination is to show that Dueck weighted the information he provided to prosecutors to prepare the inter-provincial warrant. Yesterday, he had acknowledged that at least two of the accused had wrong birthdates presented on the information.
Dueck corrected Klassen on many points. Klassen pointed out that Michael had said that there was "never never never" a time when anyone else was present when either he or his wife Kari had individually assaulted him. He then compared this with the summary from Michael's tape which describes participation in group orgies by a long list of people, including Richard and Kari Klassen. Dueck explained that this might have come from some other part of the tape, and that the inclusion in the list did not mean they were present with other people when the assults occurred, only that Michael had named them.
The last half hour of the morning explored the amount of time and overtime Dueck spent on this file. Cross-examination will resume this afternoon at 2.
Klassen's cross-examination continued with questions regarding a trip Dueck had taken to Wakaw Lake in response to an urgent call from Marilyn Thompson who was camping with her family and the Ross children. She was concerned about a possible stalker. Dueck and Jim Walker drove to Wakaw Lake and discovered a mentally challenged man who seemed to be harmless. Dueck used the term "paranoid" to describe Marilyn Thompson's state of mind. He said that she trusted him and that was why she did not call the RCMP detachment in Wakaw.
Dueck also said that the criminal investigations department had been unable to locate Lyle and Marilyn Thompson to give testimony at this trial. They had located a Marilyn Thompson in Richmond, B. C. but she was not the right person.
Regarding the poor quality of the Beryl Stonechild interview, Dueck blamed the equipment. He had to listen to the tape on his own home stereo and it was from that listening that he made the notes regarding Stonechild's allegation that Richard Klassen had anally penetrated him. When asked to find such reference in the transcript of te tape, he could not find it. He was not sure if he had ever given the tape to Matthew Miazga to listen to. Sometime after he completed the interview, he said he discussed with Miazga whether or not to call Stonechild as a witness. They decided not to. Dueck stated he was looking for "similar fact evidence" from Stonechild and the fact that Klassen would have been around 12 at the time of the alleged incident rendered the testimony unusable. The transcript would appear to be looking for direct evidence as Dueck tyells Stonechild that having an adult witness would bolster the case as the Ross children were young. In the transcript Dueck is clearly courting Stonechild as a credible witness. Dueck clearly remembered Beryl Stonechild saying "I pray to god that you arrested that fuckin' Richard Klassen" just before the tape started but he was vague about providing a context for this remark. He said Dueck spent some time with an elder before meeting with him and spoke everything in a low voice.
Borden continued the cross-examination with inquiries about the minimal and slanted evidence Dueck had provided the crown. Dueck stating that prior the Stinchcombe decision (November, 1991) the Saskatoon police procedure was to disclose as little as possible. His failure to disclose or even file exculpatory information was in keeping with the policy at the time.
Dueck was unclear about how his beliefs regarding cult and ritual abuse activity had developed over the years. He acknowledged that Liz Newton was the Social Services expert liaison with the police department. He could not name other police or social workers who attended the three one day conferences he was at regarding Satanic cults. By the time he went to Red Deer, he no longer believed that his suspects were involved in human or animal sacrifice, he said. He believed they were involved in the systematic sexual abuse of the child complainants. As far as this kind of activity goes, he says he believes it is still going on today.
October 31: The morning was more or less wasted with McKillop walking his client through documents and Miazga recalling or not recalling when he first became involved with those the plaintiffs claim conspired with him to manufacture the case.
He is the second adult professional person to take the stand this week and say he believed the Ross children were telling the truth about the Klassen/Kvellos' abuse of them, even though he did not believe other things they said. Even Judge Robert Finley went for lunch with him and Sonja shortly after the indictments were filed and told them he truly believed the children, said Miazga.
Miazga said he disclosed all he was required by law to do. McKillop tendered as evidence a letter from head office, signed by Richard Quinney in 1992, instructing his staff how to proceed in a post-Stinchcombe world: they should provide accused perns with more disclosure than in the past but not police reports, etc. This, of course, is a wilfull misreading of the Stinchcombe decision which confirms that the Crown is obligated to disclose all exculpatory as well as inculpatory evidence and that only in rare exceptions can such evidence be wittheld. In September, the court heard Terry Hinz testify that the Stinchcombe decision made little difference to how he conducted himself; he had always provided accused persons with a full deck of evidence to allow them to make full answer and defence. He learned that in law school.
Miazga also stated he took advice from Wilf Tucker who was his immediate boss at that time and is now a judge.
Court adjouned at 4. Both Miazga and Richard Klassen were ill. McKillop said he had about an hour's more exam in chief of Miazga which he would do Monday morning. Then the plaintiffs get their chance to cross-examine.