2003 SKQB 559
Q.B.G.
 A.D. 1994
 

IN THE QUEEN’S BENCH

JUDICIAL CENTRE OF SASKATOON
 

BETWEEN:
 

THE ESTATE OF D1.K. (by his personal representative, D2.K.), D2.K., [S.K.], [S.K.], KARI KLASSEN, RICHARD KLASSEN, PAMELA SHARPE, THE ESTATE OF MARIE KLASSEN (by her personal representative Peter Dale Klassen), JOHN KLASSEN, MYRNA KLASSEN, PETER DALE KLASSEN, ANITA JANINE KLASSEN

                                                                                                                               PLAINTIFFS

   - and -
 
MATTHEW MIAZGA, SONJA HANSEN, THE ESTATE OF RICHARD QUINNEY (by his personal representative Murray Brown), BRIAN DUECK, CAROL BUNKO-RUYS

                                                                                                                             DEFENDANTS

AND BETWEEN:

MATTHEW MIAZGA and SONJA HANSE

                                                                                         PLAINTIFFS BY COUNTERCLAIM

   - and -

RICHARD KLASSEN

                                                                                         DEFENDANT BY COUNTERCLAIM

Robert L. Borden and Edward Holgate for all the plaintiffs except Richard Klassen
Richard Klassen on his own behalf
Donald A. McKillop, Q.C. and Jerome A. Tholl for all the defendants except Brian Dueck
David A. Gerrand and Stephen D. McLellan for Brian Dueck

JUDGMENT
BAYNTON J.
December 30, 2003
 
Nature of the Case
[1]                  In July 1991, 16 individuals were arrested and charged with over 70 counts of sexual assault against eight foster children. Many of the children’s allegations of sexual abuse were bizarre and revolting because they involved group and ritualistic sex with satanic overtones, the sexual abuse and killing of babies and animals, the ingestion of human flesh, feces, urine, blood and other horrible, perverted and incredible acts. The case was labeled by the media as the “Scandal of the Century”.
 
[2]                  The real scandal, however, is the travesty of justice that was visited upon 12 of those individuals, the plaintiffs in this civil action, by branding them as pedophiles even though each of them was innocent of the horrendous allegations and criminal offences charged against them. For a year and a half, they lived under the cloud of the serious charges and, after being committed for trial at a lengthy preliminary inquiry, faced a criminal trial and the potential of lengthy jail terms. Eventually, all the charges against each of them were stayed by the Crown, but most of the charges were not stayed until just before their criminal trial was to begin, more than a year and a half after the charges were laid. The three children who made most of the allegations of sexual and physical abuse subsequently recanted their allegations and these recantations were made public through the news media.

[3]                  The plaintiffs subsequently commenced a civil malicious prosecution action against the two prosecutors involved, the investigating police officer and the therapist for the three dysfunctional children who made most of the false allegations. A counterclaim for defamation was brought by the prosecutors against one of the plaintiffs. The lengthy civil trial that was conducted before me demonstrates how lying children wreaked such havoc, not only in the lives of the innocent people who were charged with numerous serious criminal offences founded on the children’s false allegations, but also in the lives of the individuals who foolishly and maliciously acted together to charge and prosecute the plaintiffs for those criminal offences. As Mr. Justice Wimmer of this court so aptly observed in the Latimer case, “there is no joy in this for anyone”. The same can be said about this case.

[4]                  In many respects, the judgment that follows is more like a public inquiry report than a civil judgment. The civil action required the court to review the roles played by the defendants in their dealings with the children and their response to the incredible allegations of abuse. The review encompassed not only the lengthy criminal proceedings involving the plaintiffs, but also the related criminal proceedings involving four other individuals. One of those individuals pled guilty to one offence against each of four of the children. The other three individuals were convicted of several offences but their convictions were overturned by the Supreme Court of Canada. The series of events that are relevant to the civil action span a period of time in excess of a decade. The evidence pertaining to those events is voluminous. The judgment outlines my determination of the facts from all this evidence and sets out in detail my reasons for concluding that the plaintiffs have a valid cause of action. I recognize that the length of the judgment is beyond the endurance of all but highly motivated readers.

[5]                  I begin by giving an overview of the case to put it in perspective. Next I  outline the issues and set out some background information. Then I set out in chronological order, to the extent allowed by the issues, the salient facts and inferences of fact I have drawn from the evidence respecting the issues. Then I will outline the applicable law and apply it to the facts that I have determined. In doing so, I will comment on some specific events upon which the defendants rely. I will then move on to outline my reasons for allowing the plaintiffs to call rebuttal evidence. Finally, I will set out my disposition of the case and the counterclaim of the prosecutors against one of the plaintiffs for defamation.

An Overview of the Case and its Aftermath

[6]                  In my view, the outcome of the bizarre and unique case before me is determined largely by the uncontroverted circumstances of the case itself. The primary difficulty I encountered during the trial and in coming to grips with the issues, was in keeping the case in proper perspective. An analogy can be made to the zoom lens of a camera that is trained on a flower. Although the lens can be zoomed in to reveal a minute detail of the flower, the image of the whole flower is temporarily lost until the lens is zoomed back out. Throughout the lengthy trial, the images I was given of the case before me were ones of minute detail. It appears that during the investigation and prosecution of the case, the defendants focused on the minute detail and never stood back to view the case in full perspective. Had any of them done so, I would not be giving judgment in this case.

[7]                  In many respects, the continued focus on the minutiae of detail in this convoluted case during the trial has impaired the ability of the parties to see it in proper perspective. It has also impaired my ability to keep this judgment to a reasonable length. I would have preferred to have confined it solely to my determinations of facts from the evidence and to the inferences I have drawn from those facts. But in fairness to the parties involved in the lawsuit, and to provide an acceptable level of substantiation of my determinations for appeal purposes, I have no alternative but to relate many of the evidentiary details of the case. I have avoided cluttering up the judgment as much as possible, however, with references to court exhibits and transcript page numbers and with quotations from them or from the testimony of the witnesses. In many instances, reading the transcripts in context is required to enable the reader to assess the accuracy of the facts that I have found and the inferences I have drawn from those facts. To simplify the repeated naming of the parties and the witnesses, I have referred to them in the main by their surnames only. I intend no disrespect in doing so.

[8]                  It is important to observe that the plaintiffs, from the outset of this trial, have not relied on the recantations of the children as proof of the malicious prosecution action. With one exception, the recantations of the children were made long after the stays of the charges against the plaintiffs were entered by the Crown. Obviously the defendants did not have the benefit of these subsequent recantations at the time they made their decisions and assessments. It would be improper and grossly unfair to them to judge their actions on the basis of information gained through hindsight.

[9]                  Each of the [R.] children testified in the trial before me and each confirmed the recantations he or she made previously. Each of them testified that all the allegations made, including mutilating and killing babies and animals, eating excrement and drinking urine and blood, being forced to participate in group sex, and in a multitude of oral, vaginal and anal sexual acts with the Klassen and K. families and their children, were fabricated by [M.R. 1] and adopted by [M.R. 2] and [K.R.]. The motive for [M.R. 1]’s initial fabrications was to induce Social Services to remove his two sisters from their Klassen foster home and reunite them with him in the Thompson foster home. [M.R. 1] says that the only person who abused him was his natural father. It was obvious from his testimony that he still resents his father. [M.R. 2] and [K.R.] say that the only person who sexually or physically abused them was [M.R. 1], their brother. It was obvious from their testimony that they still resent their brother, not the Klassens or the Ks.

[10]                 In my view, the main significance of the recantations of the [R.] children and their testimony in the trial before me is to stifle any view that may still be held by the defendants or by the public that the plaintiffs are guilty of the horrible offences that were charged against them. It is now known as a fact that despite the public statements made on behalf of the prosecutors to the effect that the stays were entered because the children were too traumatized to testify, the allegations on which the charges were based are false and the plaintiffs are innocent of them. The recantations also underline the reality that children do sometimes lie and that those lies can include false and fabricated sexual abuse allegations.

[11]                 The recantations and the recent testimony of the [R.] children also demonstrate to Social Services officials, workers and personnel, as well as to police officers and prosecutors, the real threat to society of overzealous child protection responses fueled by politically correct or trendy ideologies of the day that are relied upon as a justification to overrule objectivity, reason, common sense and tested and tried legal traditions. These kinds of responses not only jeopardize the freedom of innocent people, but they indirectly harm, and at times even jeopardize, the safety and welfare of the very children that are the subject of the protection efforts. This is what happened in this case. The [R.] children testified that they all felt betrayed, for one reason or another, by their Social Services workers and therapists. It is also evident that with the exception of C.H., the other child complainants as well as the six children of the plaintiffs, were significantly harmed by the overzealous response that was made in this case.

[12]                 The two [R.] girls said that they were regularly sexually abused by [M.R. 1] in their birth home, in the Klassen home and in the Thompson home. At first, the abuse consisted only of genital touching but it soon escalated into sexual intercourse at the Klassen and Thompson homes. [M.R. 1] would sneak into the girls’ bedroom and have sexual intercourse with them. The only respite they had from his abuse was during the six-month interval that began in December 1989 when [M.R. 1] was removed from the Klassen home. The respite ended when they were reunited with him in the Thompson home. They say that the level of sexual abuse increased significantly after their move to the Thompson home despite verbal and written requests to Bunko-Ruys for help.

[13]                 As an undisputed example, [M.R. 1] had sexual intercourse with his sisters during a therapy session in Bunko-Ruys’ office while Dueck and Bunko-Ruys left them alone in the office for a few minutes. When I related this incident as an evidentiary example in my non-suit judgment, I stated that Dueck and Bunko-Ruys were standing outside the office door when this incident occurred. This was the evidence before me at that time. The subsequent testimony of Dueck satisfies me that the incident likely occurred while Dueck and Bunko-Ruys were downstairs in the building. As another undisputed example, [M.R. 1] had sexual intercourse regularly with his sisters in the Thompson home and yard and on at least one occasion, considerable violence was used by him. [M.R. 2] and [K.R.] say that Bunko-Ruys, Dueck, Miazga and the Thompsons were aware of the ongoing sexual abuse but they did not seem to care. All they seemed to care about was getting more “disclosures” from them. Once the criminal proceedings were stayed, they lost interest in them.

[14]                 [M.R. 2] in particular still feels hurt and resents [M.R. 1] for what he did to her over a period of several years. Shortly after she publicly recanted the allegations that had been fabricated by [M.R. 1], [K.R.] and herself, she contacted [M.R. 1] at Egadz to seek an apology from him for what he had done to her over the years. She felt this would help her to forgive him. She was then 15 and had not been under [M.R. 1]’s domination for some time. But he was still intent on abusing her. He tried to fondle her under the table and when she resisted his advances, he got annoyed with her and choked her because she had publicly exposed his misconduct. Three days later he almost killed her for which he was charged, convicted and spent four months in jail. [M.R. 2] said that [M.R. 1] alternated between denying his abuse of her and then admitting it but not wanting to talk about it. She says that she recanted the allegations before having any contact with the Klassen or K. families. She says she did not do so earlier because she was scared, knowing that these people had been wrongfully charged. She was also afraid to come out and say she was raped by [M.R. 1] because she did not know how people would respond. She says that when her drinking and drug friends found out about it, they accused her of “doing incest” and enjoying it.

[15]                 The defendants knew at the time they were involved in the case about the sexual abuse by [M.R. 1] of his sisters. In their testimony, they tried to minimize the consequences that their knowledge of this ongoing abuse has on the outcome of this case. They take no responsibility for failing to prevent the abuse.

[16]                 In fairness to them, neither a child therapist, a police officer nor a prosecutor has the power to remove children from foster homes or to place them in other foster care homes. That power is held by Social Services personnel who have the legal power and responsibility for child protection issues. But it is reprehensible that they took no meaningful action to have [M.R. 1] and the girls placed in separate foster homes to prevent further incidents of sexual abuse. Instead they relied on ropes and buzzers placed on [M.R. 1]’s bedroom door in the Thompson home in an attempt to prevent him from getting into the girls’ bedroom at night to sexually abuse them. The defendants and Social Services personnel were so caught up in their zeal to pursue the plaintiffs for the harm they suspected they had inflicted on [M.R. 2] and [K.R.], that they ignored the harm they knew was being inflicted on them by [M.R. 1]. What is even more indicative of their misguided zeal is that they took no reasonable or effective measures to protect [M.R. 2] and [K.R.] from further harm by [M.R. 1].
 
[17]                 It appears that Social Services was given bad advice by Bunko-Ruys to the effect that, for therapeutic reasons, the children needed to be kept together and that the safety of the girls could be protected by the installation of the devices I have mentioned. But in view of the zealous responses that Social Services routinely makes to unsubstantiated sexual abuse allegations, their ineffective response to this substantiated and ongoing sexual abuse on the part of [M.R. 1] was irresponsible, hypocritical and inexcusable.
 
[18]                 [M.R. 2] and [K.R.] testified that they had looked up to their older brother [M.R. 1] for as long as they could remember, including some of the time they were with him in their birth parents’ home. He looked after them and protected them and, in a sense, they saw him as a parental figure because they were neglected by their natural parents. Although they felt hurt and betrayed when he sexually abused them, they still had feelings for him. Although they knew that [M.R. 1]’s stories of abuse were untrue, they eventually came to believe them and adopted them as their own. They say that they would often sit in the kitchen at the Thompson residence until two or three o’clock in the morning while Marilyn Thompson wrote down all the things they “disclosed” to her. Often she plied them with questions until they were exhausted. Marilyn Thompson regularly reported these “disclosures” to Social Services, Bunko-Ruys and Dueck.

[19]                 [M.R. 1] talked about his contempt for the lack of discipline he received for his sexual abuse of his sisters and said he preferred being made to stand in the corner than losing the sexual gratification his sisters provided to him. He admitted that he sodomized other boys and sexually assaulted other children. This was known to his care givers and the defendants and they relied on these events as evidence of his “sexualization”.

[20]                 The children realize the enormity of the tragedy that has been suffered by the plaintiffs as a result of their false allegations. Although they are to be commended for their courage in admitting the wrongs that they committed, I am not convinced that they yet accept responsibility for them. Instead, they appear to blame their social workers and child therapist, Bunko-Ruys. My reading of the transcripts of the preliminary inquiries and of the trial, and my viewing of the comments made by Dueck and Bunko-Ruys during the videotaped interviews of the children, demonstrate that the children were led to believe that they were not responsible for their sexualization. They were repeatedly told that their inappropriate sexual activity was the responsibility of their alleged perpetrators.

[21]                 I mention this to illustrate that it is neither kind nor helpful to children to instill in them these kinds of questionable views. Until a person, even a child, begins to take responsibility for his or her actions, there is little likelihood that long-term therapy or counselling will be of much benefit. In my respectful view, this case demonstrates that the years of therapy the children received from Bunko-Ruys, provided them with few lasting benefits. Instead, it appears to have harmed them.
 

[22]                 The reader cannot be faulted for wondering how any reasonable person could have believed and acted upon the bizarre allegations I outlined previously. Not only was the nature of the allegations bizarre, but the fact that it implicated 16 individuals was of itself bizarre. These individuals had little in common other than the fact that some were related by blood or marriage and some were, or had been, foster parents. The individuals charged included several unrelated mothers who had their own children. Some of these mothers were pregnant during the time that some of the assaults charged against them were alleged to have taken place. None of these children had ever been abused. One of the plaintiffs was an aged grandmother who was practically blind and had limited mobility. Some of the plaintiffs had been approved as foster parents and had successfully parented many other foster children who made no allegations of abuse.

[23]                 The ritualistic and satanic aspect of the allegations was the only possible explanation of why so many apparently normal people would perpetrate such unspeakable acts on young children. But there was not a shred of evidence that the plaintiffs were members of a cult, that they practised witchcraft, or that they were involved in any other type of satanic or ritualistic practices. The defendants knew that the natural parents of the [R.] children were deaf and that Peter Klassen had fondled two neighbour girls. But the defendants never seriously paused to consider that it was highly unlikely that such a large number of apparently normal people would conduct themselves in the fashion alleged. Nor did the defendants ever seriously consider that such unlikely allegations were false, even though they knew that the children were extremely dysfunctional and often told lies.

[24]                 What makes the defendants’ conduct toward the plaintiffs even more astounding, is that the horrific allegations of the [R.] children were not restricted to the 16 individuals charged. Numerous other identifiable individuals, who were never charged by the defendants, were named by the [R.] children as abusing them. In fact the [R.] children named just about every individual with whom they had ever had any significant contact, such as grandparents, aunts, neighbours and other children. None of these other individuals, although most were known to the defendants, was ever investigated or charged.
 
[25]                 I make these observations to show that this was not a case where the circumstances themselves called out for an explanation by the alleged perpetrators. The reverse was true. It was a case that called out for an explanation by the defendants as to how the allegations could possibly be true. Somewhat surprisingly, the defendants maintain that they either did not believe or did not place any significance on the ritualistic or satanic aspect of the allegations. But as I have outlined, this is the only possible explanation of why so many people would do such strange things in concert as alleged by the [R.] children. As well, if the defendants did not believe this material aspect of the allegations of the [R.] children, how could any reasonable belief be placed in the truth of what remained of their allegations?

[26]                 Although I have attempted to set out the salient events of the case in a chronological fashion, I have been required in many instances to interrupt the chronological sequence by jumping back or ahead in time to comment on incidents that pertain to a particular issue or to a particular defendant. Unfortunately this has required me at times to repeat segments of the evidence to give context to the issue or the particular defendant under consideration. I have also deemed it necessary, from time to time, to zoom back out, so to speak, to view the case in full and proper perspective in the quest to determine if any of the defendants maliciously prosecuted the plaintiffs within the parameters of this cause of action.

[27]                 Unfortunately, I have no other alternative but to make many critical and negative comments about each of the defendants named in this lawsuit. This does not imply that the defendants lack repute or are incompetent. Reputable and competent people at times make mistakes and do things that they should not have done. Although such people must be held accountable for their mistakes, they can learn from those mistakes and, in doing so will be better equipped to carry on their respective professional practices. Although I have considerable empathy for the negative impact this judgment will have on each of the defendants, I have even greater empathy for the negative impact the wrongful prosecution has had on the plaintiffs. The plaintiffs did nothing to deserve what the defendants wrongfully caused to be done to them. The defendants have no one to blame but themselves for being held accountable for their actions.

Issues

[28]                 There are two primary issues that remain to be determined by this final judgment:

1.         Whether the defendants maliciously prosecuted the plaintiffs within the meaning ascribed to this cause of action by the case law as claimed in the main action.

2.         Whether the plaintiff (defendant by counterclaim) Richard Klassen, defamed the defendants (plaintiffs by counterclaim) Matthew Miazga and Sonja Hansen as claimed in the counterclaim to the main action.

There is also a secondary issue that is dealt with in this judgment. During the trial, I permitted the plaintiffs to call a rebuttal witness after the close of the defendants’ case and undertook to provide my reasons for doing so in this judgment.
 

Background

The Civil Action

[29]                 The 12 plaintiffs in this action consist of a brother and sister who were charged as “young offenders”, four pairs of spouses (one is deceased and two pairs were foster parents), a single woman who was a foster parent and a grandmother (now deceased) who was partially blind and physically disabled and who had been a foster parent at one time.

[30]                 The nub of the plaintiffs’ action is a claim for damages for malicious prosecution against the four remaining defendants consisting of a child therapist, Carol Bunko-Ruys, a police officer, Brian Dueck and two prosecutors, Matthew Miazga and Sonja Hansen. The fifth defendant named in the style of cause is the estate of a former director of public prosecutions, Richard Quinney, now deceased, but the action against the estate was dismissed for the reasons set out in the non-suit judgment.
 
[31]                 The plaintiffs’ action also includes other causes of action collateral to the malicious prosecution action including a negligence claim against the defendant child therapist, a negligent investigation claim against the defendant police officer and a claim that he breached the plaintiffs’ s. 7 rights guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. The action also alleges conspiracies on the part of the police officer and therapist to injure the plaintiffs. Although the plaintiffs have not formally abandoned their collateral causes of action, they presented their case as a malicious prosecution action and focussed their submissions on this cause of action.

The Prior Criminal Proceedings

[32]                 As I noted previously, the criminal proceedings involved four individuals who are not plaintiffs in this civil action. These four individuals were also charged in connection with alleged assaults on some of the same children who had made false allegations against the plaintiffs. Three of these individuals are the natural father and mother and a boyfriend of the mother of the [R.] children (the three children who testified in the case before me). These three individuals were prosecuted by means of a separate preliminary inquiry and trial. They were convicted and sentenced at trial, their convictions were upheld by a majority decision of the Court of Appeal but those convictions were overturned by the Supreme Court of Canada. The boyfriend was acquitted and a new trial was directed respecting the father and mother. The Crown did not proceed with the new trial or take any further action against these three individuals. I will refer to the criminal proceedings involving them as the “[R.], [R.] and White” proceedings.
 
[33]                 The fourth individual charged who is not a plaintiff in the malicious prosecution case before me is Peter Klassen. He is the husband of the deceased grandmother, Marie Klassen, whose estate is a plaintiff in this action. He is the father of Dale Klassen, John Klassen, Richard Klassen and Pamela Sharpe, who are plaintiffs in this action. He had a criminal record as a consequence of his prior conviction and jail sentence in 1989 for sexually assaulting two neighbour children. Those sexual assaults consisted of the fondling of the neighbour children. He pled guilty to those offences. The two neighbour children were not implicated in any way in the subsequent sexual assault charges that were brought against him. None of the allegations against the plaintiffs were made until after Peter Klassen had been convicted for the sexual fondling of the neighbour children.

[34]                 Peter Klassen and 10 of the plaintiffs in the civil case before me, were prosecuted jointly by the Crown. [R.], [R.] and White, who are not plaintiffs, were prosecuted jointly as well. But the criminal proceedings involving them were prosecuted separately from the criminal proceedings involving the other eleven individuals. I will refer to the proceedings involving the 11 individuals as the “Klassen - K.” proceedings. Two of the individuals, who are the remaining plaintiffs in the civil action, were proceeded against as young offenders due to their ages at the time of their alleged sexual assaults against the child complainants. I will outline in more detail these three separate proceedings later.

[35]                 The 11 individuals prosecuted jointly in the Klassen - K. proceedings consisted of nine Klassen family members and two K. family members. The nine Klassens consisted of the two grandparents, Peter and Marie Klassen, one daughter, Pamela Sharpe, and the three sons and their three wives, Dale and Anita Klassen, Richard and Kari Klassen and John and Myrna Klassen. The Klassen family was initially represented by Daryl Labach. After the preliminary inquiry, for reasons I will outline later, the two grandparents retained their own counsel, Jay Watson. Daryl Labach continued to represent the remaining seven Klassen family members. The two K. consisted of a husband and wife, D1.K. and D2.K. and were represented throughout by Robert Borden. The only connection between the Klassen and K. families is that D2.K. (a K. by marriage) is a sister to Anita Klassen (a Klassen by marriage).
 
[36]                 The two individuals prosecuted as young offenders, were a son and daughter of the K., S.K. (male) and S.K. (female). They were also represented throughout by Robert Borden.

[37]                 Peter Klassen eventually pled guilty to one count of sexual assault against each of the three [R.] children and against C.H., a child not included as one of the eight foster children I referred to previously. The assaults alleged by C.H. were against Peter Klassen only and he was not charged respecting them until November 1991. The nature of the allegations consisted of sexual fondling, similar to the nature of the unrelated sexual assaults of the two neighbour girls for which he had previously pled guilty. The assaults alleged against him by the [R.] children were of a much more serious nature and included some of the bizarre things I related previously.

The Related Judgment Respecting Non-suit Motions

[38]                 A few weeks ago, in a lengthy judgment dated October 27, 2003, K. v. Miazga, 2003 SKQB 451, [2003] S.J. No. 650 (QL) (Q.B.), I reviewed the law pertaining to this case in the context of non-suit motions brought by the defendants. The detailed analysis of the law set out in that interim judgment is an integral part of my ultimate decision in this case. I will only repeat the portions of it which are required to give context to my conclusions in this final judgment. But I adopt, as if repeated in this final judgment, the observations I made and the conclusions I reached in the non-suit judgment about the law and the collateral causes of action. It should accordingly be read in conjunction with this judgment.

[39]                 At the time I wrote the non-suit judgment, I was required to consider the evidence adduced in this case up to that point to determine, in effect, whether the plaintiffs had made out a prima facie case against each of the then five defendants. In other words, I had to determine if a reasonable trier of fact (a judge or a properly instructed jury) could find in the plaintiffs’ favour on the basis of the uncontradicted evidence then before me. Because this case requires the drawing of inferences of fact from other facts established by direct evidence, I was required to determine whether the inferences of fact relied upon by the plaintiffs could reasonably be drawn by the trier of fact from the direct evidence. It would have been inappropriate for me at that stage to have made any actual findings of fact. In para. 47 of the non-suit judgment, I observed that I would confine my comments on the evidence to a few examples of the nature of the evidence I considered in concluding that the plaintiffs had made out a prima facie case.

[40]                 I held that the plaintiffs had met the required evidentiary threshold respecting each of the defendants in the lawsuit except for the estate of Richard Quinney. The non‑suit motion respecting his estate was allowed and the action against it was dismissed. The non‑suit motion respecting the false imprisonment cause of action was allowed and that cause of action was dismissed. The trial then proceeded against the remaining four defendants on all the remaining causes of action. Each of them, with the exception of Carol Bunko-Ruys, testified at length. Further documents were adduced into evidence and the plaintiffs called a rebuttal witness.

[41]                 I am now required to consider afresh all the evidence adduced in this case using a different evidentiary standard than before. In describing this standard, I will use the malicious prosecution cause of action as an example. But my comments pertain as well to all the other causes of action relied upon by the plaintiffs. In this final judgment, I now have the role of the notional trier of fact referred to in my non-suit judgment. I must determine the facts of this case, the inferences of fact to be drawn from those facts and then I must apply the applicable law to these facts.

[42]                 By way of general comment, other than for a couple of minor clarifications I will make later, I accept all the examples of the direct evidence I referred to in my non-suit judgment as facts and I accept all the inferences I referred to in it as inferences of fact. There was nothing in the evidence subsequently adduced in this case which refuted or contradicted my description of the evidence.

[43]                 The onus of proof is on the plaintiffs to satisfy me that each element of the malicious prosecution cause of action has been proven against each defendant. If it is not proven against a particular defendant, then that defendant is not liable to the plaintiffs. The standard of proof is on a balance of probabilities. This simply means that unless it is more likely than not that the defendant in question did in fact maliciously prosecute the plaintiffs, that defendant is not liable to the plaintiffs.

The Facts and the Inferences to be Drawn from those Facts

Nature of the Evidence

[44]                 The evidence adduced through this trial was somewhat unique in that most of it consisted of thousands of pages of transcripts and documents. Many of these transcripts were of the lengthy criminal proceedings that I referred to previously including the [R.], [R.] and White preliminary inquiry, the Klassen - K. preliminary inquiry, the [R.], [R.] and White trial, the two appeals from it and Peter Klassen’s application to the Court of Appeal respecting his guilty plea. The remaining transcripts were of the lengthy examinations for discovery of the five defendants which were tendered almost in their entirety by the plaintiffs by way of “read-in” evidence and of portions of the examinations for discovery of some of the plaintiffs.

[45]                 The numerous documents tendered into evidence include medical reports, police and prosecution records, memos of various Social Services personnel, sexual abuse of children protocols, police and prosecution notes, memos, correspondence and other like documents. The remaining evidence consists of the testimony at the civil trial of some 40 witnesses and of the numerous lengthy videotaped and audiotaped interviews of the plaintiffs and numerous children that were viewed in their entirety during the trial. Many of these videotaped interviews were of the child complainants who testified at the various criminal proceedings I have related.

[46]                 Unfortunately, the parties were not able to agree on the preparation of common document binders. Because of this, incomplete copies of some documents were tendered into evidence by one party despite the fact that a complete copy had been tendered into evidence by another. Common document numbers were not always utilized. The reference in the testimony of the witnesses to the documentary exhibits is accordingly confusing at times.

[47]                 My findings of fact are based on the evidence that I have just outlined. Much of that evidence is not in dispute. The primary dispute between the parties pertains to the inferences of fact that they ask the court to draw from all the bits and pieces that make up the totality of the evidence I have just described. There is no single piece of evidence from which such inferences can be drawn. The inferences can only be drawn from the cumulative effect of the evidence as a whole and from the nature and circumstances of the case itself.

[48]                 It is not practical nor necessary that I comment on all the testimony and documentary evidence adduced in this case. The transcripts and the documents that were admitted into evidence speak for themselves. Much of this evidence and the testimony I heard in court is duplicitous and has marginal relevance. My task is to determine from this evidence the facts which are relevant to the legal issues raised by the litigation. In addition to relating these facts from a chronological perspective, I will attempt to illustrate what each of the parties knew or should have known at various stages of the criminal investigation and the prosecution in which they were involved.
 
[49]                 Before beginning to relate the factual details of this case, I will outline some of the difficulties with the evidence.

Difficulties with the Evidence

[50]                 The facts that I relate in this judgment involve in part the actions of various Social Services workers, personnel and officials. None of them testified in the case before me. The testimony of even one of these individuals would have been helpful in clarifying many of the material issues in dispute. Section 73 of The Child and Family Services Act, S.S. 1989-90, c. C-7.2, provides these individuals with very broad protections from being compelled to appear and give evidence in a court of law. The benefit of those protections was relied upon by Social Services in applying to quash a subpoena issued at the request of the plaintiffs against one of the senior workers. An agreement was reached however respecting the application and a letter was provided by the worker that clarified the issue in question.

[51]                 As well, most of the parties and the witnesses who testified at the civil trial or who gave evidence at their respective examinations for discovery, understandably had considerable difficulty recalling specific details of dates, conversations, motives, thought processes and like matters that pertained to events that took place well over a decade ago. But I was not impressed by the inability of some of these individuals to recall even memorable and significant events. In many instances it was obvious that some of the witnesses, particularly Dueck and Miazga, were reluctant to testify about or acknowledge such events. I am not satisfied that the professed lack of recall was always genuine. In other instances, admissions against interest had to be laboriously extracted from the defendants and other witnesses through lengthy cross-examination and by reference to uncontroverted documentary evidence. This process considerably lengthened the trial.
 
[52]                 For the reasons I have outlined, some of the facts I relate often lack specific dates or other specific details because I was often not provided with reliable evidence of specific details. Although I take full responsibility for any errors of detail that I may make in relating the evidence, in some instances the details of the evidence itself may be in error.
 
The Manner in which the Criminal Charges Originated

[53]                 Some background information respecting the [R.] children is required to give the case some context. This background information was either known or was readily available to each of the defendants in this action. It explains in large part how the bizarre allegations of the [R.] children were given credence and how the travesty of justice occurred.

[54]               [M.R. 1], [M.R. 2] and [K.R.] were born into a dysfunctional family. [M.R. 1], the oldest, was born on October 18, 1979. [M.R. 2] and [K.R.] were twins and were born on March 4, 1982. Their parents, [D.R.] and [H.R.] were deaf mutes, they were alcoholics, they did not get along well together and they neglected their three children. [H.R.] was a prostitute and regularly brought three or four male customers home with her at a time. She acquired a boyfriend, Donald White. The children, at an early age, were exposed to unhealthy sexual activity in their birth home. They realized that they did not have good parents and they had little use for their mother who seemed to have no time for them.

[55]                 Their father attempted to parent them but was incapable of doing so. They were left on their own to do whatever they wanted to do. [K.R.] relied on [M.R. 2] for support and [M.R. 2] in turn relied on [M.R. 1] for support. In many ways, [M.R. 1] was the parent figure for them and he exercised a high degree of control over them. Social Services intervened and provided a degree of supervision of the children in the birth home to compensate for the neglect they suffered at the hands of their parents.
 
[56]                 [M.R. 1] says that he was sexually assaulted on several occasions by his natural father.  He in turn sexually assaulted his sisters and his sisters in turn acted out sexually with one another. It appears that the whole [R.] family was dysfunctional and likely sexually perverted. The [R.] children were apprehended by Social Services in February 1987 and placed in foster care. At that time [M.R. 1] was seven and his sisters were almost five. Social Services chose the Dale and Anita Klassen foster home as the home in which to place the [R.] children. Dale and Anita Klassen had previously been assessed and approved as foster parents by Social Services. They had taken in foster children for some time without incident before the [R.] children were placed with them. Anita Klassen had been sexually assaulted as a child and, because of this, she advised Social Services that she did not want any children who had been sexually assaulted to be placed with her. She was concerned that her own experience would make it difficult for her to deal with an abused child.

[57]                 For some unexplained reason, Social Services ignored this request and, without disclosing to Dale and Anita Klassen that the [R.] children had been sexually abused and were sexually dysfunctional, placed them in the Klassen home. It soon became evident to the Klassens that the children were abnormal and constituted a real parenting challenge. They required constant supervision to keep them from inappropriately touching one another and others. They created problems at school that were so outrageous that [M.R. 1] and [M.R. 2] were eventually assigned special supervisors to monitor their “touching problem” as it was termed by their therapist, Bunko-Ruys, when she became involved later on. In [M.R. 1]’s case, the supervisors even had to be with him in the washroom to prevent him from sexually abusing other children.

[58]                 Dale and Anita Klassen did what they could, within the limited resources available to them, to parent the [R.] children. At the time the [R.] children were placed with them, they had two of their own children, T.K., 8, born July 31, 1978, and J.K., almost 4, born March 17, 1983. The Klassen family treated the [R.] children as their own by involving them in all their family activities and outings. Their social contacts with others, including their extended families, were limited by the extreme “off the wall” conduct of the [R.] children, particularly [M.R. 1]. When they did get together with other family members outside their home, the conduct of the [R.] children was such that they usually had to cut their visit short and get them back home before they were told to leave.

[59]                 Anita Klassen repeatedly requested assistance from Social Services but, in the main, her requests were ignored. She did get some relief by means of “respite” workers and school supervisors. But she nevertheless was called to the school regularly to deal with problems relating to [M.R. 1]. She had to deal with [M.R. 1] being kicked out of school and kicked off the bus. She had to arrange for taxi transportation for [M.R. 1] and then deal with the irate drivers. She had to deal with the police when [M.R. 1] set fires and assaulted other children. She had to take the [R.] children for medical examinations and psychological assessments.

[60]                 The Klassens had to try to keep [M.R. 1] under supervision at all times to try and keep him from touching his sisters. At night, they had to try to keep him from sneaking into his sisters’ bedroom. On one occasion, [M.R. 1] put a butter knife in [K.R.]’s vagina. On another he sexually assaulted [K.R.] and other girls in the playground. On another, he pushed [K.R.] out in front of a moving vehicle causing her to suffer serious facial and limb injuries that required hospitalization. Finally, the Klassens could take no more of this and advised Social Services that they could no longer care for [M.R. 1]. They requested that [M.R. 1] be removed from their home, but were prepared to continue to parent his sisters. The Klassens frequent requests of Social Services were either ignored or deferred.

[61]                 Notwithstanding the stress they were experiencing, they continued to care for [M.R. 1] because they had no other option except to put him out in the street. Anita Klassen became pregnant with a third child and [M.R. 1] became jealous and threatened to kill the baby, T.K. once he was born on April 1, 1989. The Klassens took his threats seriously and finally prevailed on Social Services to place [M.R. 1] in another foster home. Social Services did so on December 12, 1989, over a year after the Klassens had been requesting that [M.R. 1] be removed. He was placed with Lyle and Marilyn Thompson, a “therapeutic” foster home. [M.R. 2] and [K.R.] were left in the Klassen home.

[62]                 I go back a couple of years in time to relate a significant event. The [R.] children had been much happier in the Klassen foster home than they had been in their birth home. They still had some affection for their natural parents and Social Services allowed them unsupervised visits with their parents in their birth home. The Klassens were required by Social Services to facilitate those visits. On one occasion on September 21, 1987, when the [R.] children were returned after a visit with their natural father, Anita Klassen noticed blood on [M.R. 2]’s panties as she was getting her ready for bed. When she asked [M.R. 2] about the blood, [M.R. 2] responded that her deaf daddy put his penis in her bum. Anita Klassen immediately contacted the Social Services mobile crisis unit and advised of her concern that [M.R. 2] may have been sexually assaulted. She took [M.R. 2] to the hospital as instructed and a report was provided by the examining doctor to Social Services. Two police officers attended the Klassen residence and interviewed the [R.] children. They were unable to obtain a reliable explanation for the incident. There was no suggestion from the children or from the circumstances of the incident, that the Klassens had in any way sexually assaulted or abused [M.R. 2]. On the further instructions of Social Services, Anita Klassen subsequently took [M.R. 2] to Dr. Anne McKenna to be examined for potential sexual abuse.

[63]                 Just prior to [M.R. 1] being removed from the Klassen home on December 12, 1989, Social Services engaged a therapist, Bunko-Ruys, to provide therapy for [M.R. 1]. Anita Klassen took [M.R. 1] to scheduled therapy appointments commencing in October 1989. This was the first involvement of Bunko-Ruys in the case. At about the same time, Dueck also became involved in the case. At the request of Social Services he interviewed the three [R.] children, likely in December 1989, about potential sexual abuse. He was unsuccessful in obtaining any “disclosures” to this effect. He made no notes or any report of this interview. It appears that Social Services had initiated an investigation of the Dale and Anita Klassen foster home and as well the Pamela Sharpe foster home, because Peter Klassen had pled guilty to the fondling of the two neighbour girls I referred to previously. All the foster children in these two homes were interviewed for “disclosures” of abuse with negative results.
 

[64]                 In order to provide some background information on what is to follow, it is necessary to relate that Pamela Sharpe had also been approved by Social Services as a foster parent several years before. One of the children placed in her home by Social Services was a small boy (who I will refer to as “M.K.”). M.K.’s mother had apparently abandoned him at birth because he had a disfiguring birth defect on his face. Pamela Sharpe accepted M.K. as if he had been her own child. She supported him throughout all the surgeries required to partially correct his birth defect. M.K. is one of the children who was pressured into making allegations of abuse against her even though he continued to deny such abuse for almost two years after he was first interviewed.

Placement of the [R.] Girls in the Thompson Home with [M.R. 1]

[65]                 Shortly after [M.R. 1] was placed in the Thompson home in December 1989, [M.R. 1] made a “disclosure” that he was concerned for the “safety” of his sisters who remained in the Klassen foster home because of some sexual abuse he had suffered there. He was annoyed with Anita Klassen for instigating his removal from her home and his objective was to have his sisters removed from her home as well and be reunited with him in the Thompson home. He did not appreciate being separated from his sisters whose proximity had previously provided him with opportunities to obtain sexual gratification. This “disclosure” to Marilyn Thompson was enough to rouse Social Services into action and accomplish [M.R. 1]’s objective. What followed was a frenzy of leading and suggestive interviews of all the foster children and all the natural children who lived in the Dale Klassen and Pamela Sharpe foster homes.

[66]                 I jump ahead to relate that on May 29, 1990, [M.R. 2] and [K.R.] were summarily removed from the Klassen home and placed in the Thompson home. The “disclosure” by [M.R. 1] was duly reported to Dueck and Bunko-Ruys. The only individuals who can give direct evidence of this and subsequent “disclosures” made by [M.R. 1] and his sisters to the Thompsons, is of course Lyle and Marilyn Thompson and the three [R.] children. Dueck, Bunko-Ruys and numerous Social Services personnel and officials were made aware of the “disclosures” of the [R.] children by Marilyn Thompson, the new foster mother of the [R.] children.

[67]                 The present whereabouts of the Thompsons is unknown to the parties. Dueck testified that he had police services attempt to locate them without success, but I have reservations about the legitimacy of those attempts. The nature of these initial “disclosures” of the [R.] children and the manner in which they were made or obtained is, especially in the unique circumstances of this case, of critical importance. It has a significant bearing on the legitimacy of the investigation, the charges and the prosecutions. It was also of critical importance to the defence of all 16 individuals charged with the criminal offences. It has a significant bearing as well on the determination of issues raised by this civil case. Accordingly, the evidence of the Thompsons, tested by cross-examination, would have been of considerable assistance to me. Later on, I will relate how the potential evidence of the Thompsons in this regard was in the main kept from the scrutiny of defence counsel and the court on the basis of Miazga’s objections.

[68]                 I did hear the uncontradicted evidence of the three [R.] children in this regard but for obvious reasons, I do not have a lot of confidence in their unsubstantiated evidence, particularly that of [M.R. 1]. For the most part, however, their evidence given at the trial before me has not been contradicted. Also in evidence are the voluminous “Thompson notes” which contain graphic details of some of the “disclosures” the children made to Marilyn Thompson prior to their videotaped “disclosures” to Dueck and Bunko-Ruys during the police investigation.

[69]                 The videotaped interviews of the [R.] children at the police station demonstrate graphically what “disclosures” were made to Dueck and Bunko-Ruys over a period of several weeks in the late fall of 1990. They also demonstrate the leading and suggestive manner in which they were obtained and the demeanour and behaviour the children exhibited when making the “disclosures”. Dueck’s examinations for discovery read-ins and his testimony at trial illustrate that he is reluctant to admit what he had been previously told of the “disclosures” by the Thompsons. The same can be said about the examinations for discovery read-ins of Bunko-Ruys. She elected not to take the witness stand and testify at the trial. So it is not clear what was “disclosed” to her by the [R.] children, when those “disclosures” were made and under what circumstances they were made. Defence counsel for the 16 individuals charged, attempted at the two preliminary inquiries and at the trial, to obtain some of this information. But again Miazga, in the main, aggressively and successfully opposed those attempts.

[70]                 Nor is it clear how Social Services personnel learned of these “disclosures” or what other “disclosures” may have been made to them or passed on to them. Social Services officials and workers chose not to provide the information in their files respecting these issues to the plaintiffs. In fairness to them, however, it appears that at some point in the criminal proceedings that Miazga had made preliminary arrangements for defence counsel to view some materials at the offices of Social Services. In any event, it is known from the documents that the parties have been able to obtain, that [M.R. 1] disclosed to Nancy McGregor and Janet Kormish of Social Services that he had been sexually assaulted in two foster homes, the Dale and Anita Klassen home and the Pamela Sharpe home. Social Services personnel took [M.R. 1] to the police station to be interviewed about these “disclosures” on May 25, 1990. Dueck was apparently unavailable so [M.R. 1] was interviewed by Ronald Schindel who was then a Corporal in the Youth Division. Although Schindel testified at the trial, he had no recollection of the interview. He said he would have prepared a report of the interview. Although Dueck says he searched for the report at the police station, surprisingly he could not locate it. Fortunately, a memo dated June 4, 1990 authored by Carol Middleton, a Social Services worker, documents what transpired at that May 25 interview.
[71]                 The memo relates that Schindel chose not to interview [M.R. 1] on videotape. Nor would he interview [M.R. 1] in the presence of the social workers. Instead, he interviewed [M.R. 1] alone. He then called Middleton into the room to advise that [M.R. 1] was making disclosures against a large number of people who had supposedly abused him, including parents, uncles, aunts, etc. Schindel felt that [M.R. 1] was too confused to be believable and that he might be projecting a past abuse on the Klassen family. The only person Schindel was inclined to believe that might have sexually assaulted [M.R. 1], was Grandpa Peter Klassen who had previously pled guilty to fondling the neighbour children. Schindel’s planned approach was to proceed with a charge against Peter Klassen if he refused to take a polygraph.

[72]                 The nature of the “disclosures” made by [M.R. 1] to Schindel are significant. [M.R. 1] alleged that Anita Klassen touched him on three occasions with her hand on his penis late at night when he pretended to be asleep. He alleged that J.K. (Anita’s young daughter) also touched him in this manner on his penis. He said that on one occasion only, Dale Klassen had exposed his penis to him. He claimed that on two occasions, Grandpa Peter Klassen had put his penis in [M.R. 1]’s anus at Pamela Sharpe’s home while several other adults were present. In response to further questions from Schindel, [M.R. 1] said that Anita Klassen often pulled the hair of the [R.] children when she was upset with them. Schindel suggested to [M.R. 1] that he was angry at Anita and it appeared that he would not mind seeing her in trouble. [M.R. 1] responded that he did not care what happened to Anita.

[73]                 I leave the Middleton memo for a moment to relate some other events that occurred on May 25, 1990 that are documented in a memo dated June 5, 1990, authored by Janet Matkowski, now deceased. Her memo indicates that the original complaint from [M.R. 1] included the allegation that Anita Klassen had fondled his sisters, [K.R.] and [M.R. 2], and that Dale Klassen had exposed himself to all the [R.] children. Matkowski had a consultation on May 25, 1990 with Middleton and four other Social Services personnel. The strategy that emerged was to pick up the [R.] girls from school and place them in an alternative foster home. Social workers were also to interview T.K. and J.K. (Dale and Anita’s Klassen’s natural children) at school and either apprehend them or return them to their parents.

[74]                 Matkowski interviewed J.K.  J.K. did not disclose any abuse but in fact became quite adamant that no one was touching her sexually or physically. The memo states: “She did not volunteer any information” and “became tearful when discussing ‘bad touching’.” Matkowski also interviewed T.K. but she was not able to obtain any “disclosures” of physical or sexual abuse from him either. But she noted that shortly after the interview began, “the tips of T.K.’s ears became red” and that as the interview progressed, “so did the redness on his ears.” When he was asked whether or not anyone was touching him, he answered ‘no’.” He began to cry and “sobbed throughout the interview.” He was too upset to return to class. Matkowski also interviewed Anita Klassen at her home and noted that she “became immediately defensive when advised of the nature of the investigation.” She stated there was no abuse in her home and that “they were free to investigate.”
 
[75]                 On May 29, 1990, Matkowski contacted Dale and Anita Klassen and requested they take J.K. and T.K. to be examined by Dr. Joel Yelland. The memo indicates that, “After a long period of silence, Dale agreed to do so.” The memo also indicates that Dr. Yelland called and stated there were no physical signs of sexual abuse on either child.

[76]                 I return to the Middleton memo. It goes on to note that [on May 25, 1990], Middleton and five other Social Services personnel then met to “discuss our action from this point.” It was 5:00 p.m. when it “was decided that we would continue pursuing (sic) of this concern on Monday, May 28, 1990.” On that date Middleton and two other Social Services personnel attended at Bunko-Ruys office to have [M.R. 1] “reinterviewed”. The memo observes that: “The purpose of this interview was to allow me [Middleton] to hear [M.R. 1]’s disclosure and then to pursue the investigation and make a report for the Department of Social Services.” [M.R. 1] enhanced some of his “disclosures” somewhat when Bunko-Ruys attempted to get further clarification from him but it appears that he forgot about other “disclosures” he had made and did not say anything to Bunko-Ruys about them. He stated that “he [was] not aware of any other sexual assaults which occurred”. The memo notes however that on May 25 (presumably in his “disclosure” to Schindel) that [M.R. 1] said that C.M., a foster child living at Pamela Sharpe’s home, had told him that Grandpa Peter Klassen has sex with his own daughter Pamela Sharpe.
 
[77]                 The following day, May 29, 1990, Dueck is back on the scene with five Social Services workers in a child apprehension operation to apprehend all the foster children from the two foster homes. M.K., then four years of age, was taken to the police station for an interview about potential sexual abuse at the hands of her foster mother Pamela Sharpe or her father Peter Klassen. He was presented with anatomical dolls to demonstrate what had supposedly happened to him. The videotape of the interview was viewed in the courtroom during the civil trial. Despite persistent, suggestive and leading questions, M.K. denied any abuse. The best “disclosure” that could be obtained from him was that he had a secret which he stated was that two older boys liked to hit him in his genital area.

[78]                 That did not satisfy Middleton so while she transported M.K. to his new foster home, she explained to him that the move was because “we were concerned about children at Pam’s house and that the concern was that Grandpa touched children on their ‘dinkies’.” Not surprisingly, four-year-old M.K. became more compliant at this point and stated that Grandpa touches him on his dinky. Further questions elicited no more details other than that the touching was done with Grandpa’s hands. No questions were asked to determine whether this occurred while Grandpa was bathing him, changing his clothes or in some other fashion.

[79]                 The memo indicates that later in the day, Kormish left a message stating that [K.R.] has “disclosed” to Lyle Thompson that Anita Klassen “has a touching problem”, an odd term to be used by an eight-year-old child. The memo also indicates that Peter Klassen previously pled guilty to sexually assaulting two children in Pamela Sharpe’s garage. It further indicates that in December 1989, a sexual abuse investigation was done on the Pamela Sharpe and Dale and Anita Klassen foster homes and that, “No disclosures were made at this point.” Middleton concludes on the basis of what is in reality M.K.’s “non-disclosure”, that M.K. was sexually assaulted and should not be returned to Pamela Sharpe.

[80]                 It is obvious from the tone and content of the Middleton memo that Social Services personnel were dissatisfied with not only the manner in which Schindel had conducted the interview of [M.R. 1], but also with his decision not to press charges against everyone named by [M.R. 1] with the exception of Peter Klassen. It is also obvious that they were convinced that all the Klassens named by [M.R. 1] had abused him and they were not going to let any indications to the contrary shake them from that view. Their response to the Schindel set-back was to have [M.R. 1] re-interviewed by Bunko-Ruys, presumably to get more “disclosures” and to obtain an assessment that was more in line with their views. They also decided to interview all the children and the parents in the two foster homes that were implicated by [M.R. 1].

[81]                 Despite aggressive, suggestive and leading questions, they were not able to elicit any evidence of abuse that bolstered or supported [M.R. 1]’s allegations in any meaningful fashion.  In fact the reverse occurred. Yet they chose to believe [M.R. 1] and to disbelieve all the other children. There are no transcripts or videotapes of these interviews, but the comments in the Matkowski memo indicate that the children were pushed beyond their comfort levels, one child to the point of sobbing uncontrollably. This of itself impugns the pious concerns voiced by all the child care workers and therapists who testified in the criminal proceedings against the plaintiffs to the effect that the child complainants would be extremely traumatized by having to answer questions in court.

[82]                 It is obvious from the Matkowski memo and the testimony at the civil trial of some of the children who had been interviewed, that the manner in which their interviews were conducted and the intense pressure that was brought to bear on them to make “disclosures” of abuse on the part of their natural or foster parents, were far more traumatic than any court proceedings could have been. The children were taken from their parents and subjected to questioning that suggested they were not being honest if they did not admit to abuse on the part of their parents. By contrast, the court proceedings took place in a non-confrontational setting with the public excluded, the accused individuals hidden behind a screen and sympathetic judges dressed without robes. Examples that support this assessment are the trial testimonies of J.K. and S.K. who were subjected to this kind of pressure.

[83]                 The inferences I have drawn about the aggressive and unobjective approach taken by Social Services personnel and workers to sexual abuse “disclosures” are supported by Dueck’s evidence to the effect that he was upset with the manner in which Schindel treated Social Services personnel and the manner in which Schindel conducted and responded to his May 25, 1990 interview of [M.R. 1] Dueck subsequently demonstrated his own approach and interview techniques in the videotaped interviews he conducted with Bunko-Ruys and Judy Hjertaas, both of whom testified extensively about child-court trauma at the criminal proceedings.
 
[84]                 Dueck undoubtedly learned of the Schindel interview when he was assisting Social Services personnel in apprehending the foster children on May 29, 1990. He was of the view that Schindel should have permitted Social Services personnel to attend the interview and should have put more reliance on [M.R. 1]’s allegations. He was also of the view that Schindel should have done more in regard to them. He took Schindel to task for not doing so. Had Dueck paid more heed to Schindel’s assessment and properly performed his job as the investigating officer, it is unlikely that the debacle that ensued would have occurred.

The Police Investigation

[85]                 On June 5, 1990, within a few days of the placement of [M.R. 2] and [K.R.] in the Thompson foster home with [M.R. 1], Social Services instructed Marilyn Thompson to take the three [R.] children to Dr. Yelland for physical examinations to detect any indications of sexual abuse. Dr. Yelland is a family practitioner who performed numerous such examinations for Social Services. His testimony in the court proceedings that followed, was that he and Dr. Anne McKenna were likely the only two doctors in Saskatoon to whom Social Services referred children for such examinations. He said he had done between 200 to 400 of such exams. He described his findings in his June 7, 1990 reports to Social Services. He got his information from Marilyn Thompson and from his interviews of the children.

[86]                 I will discuss these medical reports in more detail later. In general terms, neither [M.R. 2] nor [K.R.] made any “disclosures” to Dr. Yelland of sexual or physical abuse. [M.R. 1] and Marilyn Thompson “disclosed” to him that [M.R. 1] had been sodomized on numerous occasions in his birth home and apparently on the most recent occasion in 1988 by Peter Klassen. He is the individual who had previously pled guilty to the fondling type of sexual assault with a couple of neighbour girls and who is not involved in this civil action before me.

[87]                 Dr. Yelland’s professional opinion of [M.R. 2] was that:

. . . At the present time there is no evidence of penetration of the vagina itself and all I can say at the present time is that these findings would be consistent with sexual abuse in the form of fondling. . . .

This is consistent with the findings set out in the November 10, 1987 report of Dr. Anne McKenna who is an Assistant Professor at the Department of Paediatrics, University of Saskatchewan, University Hospital. She examined [M.R. 2] for indications of sexual abuse. [M.R. 2] was five at the time. The report was sent to Social Services who had requested Anita Klassen to take [M.R. 2] to Dr. McKenna for the physical examination. As I related before, Anita had called Social Services mobile crises unit to report her concern that [M.R. 2] might have been sexually abused by her natural father while on a visit with him.

[88]                 Dr. McKenna observed in her report that the child was well known to the institution due to developmental problems encountered by a “hearing child” being raised by “hearing impaired parents”. There had also been concerns previously about adequate nutrition. She states that the [R.] children “were lost to followup to this institution in 1983.” She says:

I understand that the twins have been in care since February of this year [1987]. According to the foster mother, the natural mother was drinking and father could not cope with active children.

On the past weekend, the twins had a visit with their father. When [M.R. 2] returned home, the foster mother noted some bleeding and redness in the perineum. [M.R. 2] stated to me that “my deaf daddy spanked my bumb (sic). Then he put his fingers in my bumb. It hurt.”

[89]     The physical examination performed by Dr. McKenna indicated that:

. . . The hymen was intact. There was slight posterior labial fusion. On the left, there was a 2 centimeter shallow linear laceration along the labia minora. Examination of the rectum was unremarkable. . . .

There is no question in my mind, given the history and the physical findings, that this child has been subjected to nonaccidental trauma of the genital area.

[90]     I move forward again to 1990 and the physical examinations of the [R.] children by Dr. Yelland. This time I refer to his examination of [K.R.]. His opinion of [K.R.] was that:

These findings are highly compatible with abuse having occurred in this child in the form of penetration of the vagina or rectum. The source of this abuse cannot be specified and may be from a penis, digital penetration, or penetration with a foreign body. . . .

His opinion of [M.R. 1] was that: “This child’s rectal findings are compatible with a history of Sodomy.”

[91]                 Dueck and Miazga relied on these medical reports as providing support or corroboration of the credibility of the [R.] children’s allegations of sexual abuse that they made against the various persons charged, including the plaintiffs. I will have more to say about this later.

[92]                 Dueck in the meantime had made arrangements with the Thompsons for a “chance” meeting at Taco Time so that he could reacquaint himself with the [R.] children. This meeting took place in early June 1990. [M.R. 1] recognized Dueck and came over to talk to him. Dueck told [M.R. 1] that he was glad the kids were now “safe” in the Thompson home. [M.R. 1] rose to the occasion and responded, “I only told enough to get my sisters safe. I have got a lot more to tell you about sexual abuse.” Marilyn Thompson called Dueck the very next day to report that the “floodgates of information” had opened and that the [R.] children were making all kinds of “disclosures”.

[93]                 According to Dueck’s own evidence, he did absolutely nothing to try to determine how these “disclosures” were being obtained nor did he alert the Thompsons of the risk that if the “disclosures” were obtained through inappropriate or improper interview techniques, the successful prosecution of the case could be seriously jeopardized. Almost 100 pages of handwritten notes, drawings and comments came to the attention of the plaintiffs during the criminal proceedings a year and a half later. Most of the notes were made in Marilyn Thompson’s handwriting and represented her representation of the bizarre and unbelievable “disclosures” of abuse made to her by the [R.] children in the mid 1990s.

[94]                 According to the [R.] children, Marilyn Thompson routinely sat up with them until the early hours of the morning asking them questions about what happened in their previous homes and pestering them for particulars of abuse. It is obvious that they obliged her. It is also obvious from Marilyn Thompson’s notes that by obtaining these “disclosures” she was assisting Bunko-Ruys and Dueck in the police investigation of the Klassens and K.

[95]                 Although Dueck and Bunko-Ruys in their evidence (including the read-ins from their examinations for discovery), try to distance themselves from the Thompson notes, I am satisfied that they not only knew that these notes existed but that they knew in graphic detail what the notes contained. Lyle and Marilyn Thompson regularly took the [R.] children to Bunko-Ruys for therapy sessions with a frequency on average of once or twice a week. Dueck met with the children and Bunko-Ruys in her office on at least three occasions and likely many more. Marilyn Thompson appeared to be motivated by the fact that she was providing valuable assistance to the investigation by passing on information of the children’s “disclosures” to Bunko-Ruys and to Dueck. She met with Dueck and Bunko-Ruys on several occasions and talked to them on the phone quite often as well. It is highly unlikely that she would have kept these astounding and ongoing revelations to herself. It is also highly unlikely that she would have expended such an effort in committing these revelations of the children to writing for her own use and no other purpose. The notes consist of almost 100 pages. It is evident from the evidence that Dueck and Bunko-Ruys were given copies of the notes.

[96]                 From the extensive read-ins of the examinations for discovery of Bunko-Ruys, it is obvious that she has a poor overall recollection of what “disclosures” were made to her by the children or of what she may have reported of them to Social Services or to Dueck. Nor does Dueck have as good a recollection of any matters pertaining to the Thompson notes or of his dealings with Bunko-Ruys or of what “disclosures” she may have passed on to him than he has of many other aspects of the case. My previous comments respecting contrived lack of recall apply to these matters. Bunko-Ruys maintains that her sole role was to “support the children in expressing their perceptions” and that she had no role, obligation or responsibility to assess the veracity of these expressions of perceptions. Nor did she have any responsibility to caution anyone to whom she might pass on such expressions of perceptions that they may not be true. She even went so far as saying that she had no obligation to the court, or to the 16 individuals charged, to give any such caution despite the fact that she was qualified as an expert witness and testified in court on matters that would lend credibility to the “expression of perceptions” of the [R.] children contained in their sworn testimony in court.

[97]                 Dueck says that he was aware of the Thompson notes and of the fact that the [R.] children were making “disclosures” to Bunko-Ruys. But he says that he did not want to know about them before interviewing the children so that he would get their “disclosures” from his videotaped interviews of them. I have serious reservations about this assertion. It was obvious from his conduct of the videotaped interviews of the [R.] children and by the nature of his questions of the children, that he had previously received specific information that he was attempting to elicit from them. He knew that information came from “disclosures” of the [R.] children made previously to Marilyn Thompson or Bunko-Ruys because they were the only ones who were interviewing the children at that time. He could not have obtained it from any source other than from the Thompsons or Bunko-Ruys. Even if his assertion is true, there would be no utility in his not informing himself of what the children previously said to the Thompsons or to Bunko-Ruys. In fact, as the investigating officer, he had an obligation to inform himself of the particulars of those “disclosures” to assess the consistency or lack of it in the allegations made by the children.

[98]                 Dueck held himself out as an experienced interviewer of child complainants, and said he had conducted approximately 100 interviews before this case. He either knew, or should have known, that if the children had made detailed allegations before the interviews, the circumstances under which those allegations were obtained may well have contaminated the information he was about to receive. Surely, as a competent and experienced police officer with a duty to investigate these bizarre allegations, he knew that one of his main functions was to try and determine if in fact these horrible events had taken place. Trying to determine the credibility of the allegations was the most critical aspect of the investigation. If they were true, his witnesses were credible. If they were untrue, his witnesses were not credible. Another essential aspect of his investigation was to determine how the children’s allegations originated and how they were made or elicited. This in turn had a significant bearing on whether the events alleged truly occurred or were partly or completely comprised of fantasy or fabrications.

[99]                 The same can be said of Bunko-Ruys. She was an experienced therapist and held herself out as having expertise in dealing with sexually abused children. She testified in court as an expert in this area. She participated fully with Dueck in the child interviews, taking an active roll in asking specific questions of the children to elicit information that appeared to have been given to her previously, either by the children or by Marilyn Thompson. She also knew, or should have known, that the detailed “disclosures” of the children may have been obtained by Marilyn Thompson, who was not a professional, under circumstances which may have seriously prejudiced the credibility of “disclosures”. She also knew, or should have known, that the extensive involvement of Lyle and Marilyn Thompson in this whole “disclosure” process over a period of several months before the police interviews, may have seriously contaminated the children and the truthfulness of any future allegations made by them.

[100]              It must be kept in mind that this was not a case of a young child blurting out to her mother that her father had inappropriately touched her the week before. This was a case of repeated interrogations initiated by a foster parent in an attempt to obtain “disclosures” of abuse. The fact that the allegations were incredible, bizarre and named a host of adults with no common connection who acted in concert to do things that are inconsistent with human experience, would have alerted a lay person with any common sense to the necessity of proceeding with extreme caution. An experienced and competent therapist would also have been so alerted.
 
[101]              It appears from their evidence and from the circumstances themselves however, that Dueck and Bunko-Ruys had little or no concern about these matters. Their goal was to get as many of these “disclosures” as possible on videotape, not on investigating, exploring or even considering the veracity or reliability of them. The videotapes of the police interviews of the [R.] children formed the basis of the police investigation and the occurrence report which in turn was relied upon by Miazga. I will deal with this aspect of the case in due course.

Videotaped Interviews of the [R.] Children

[102]              For over four months, Dueck sat in the wings, so to speak, waiting from a signal from Bunko-Ruys that the [R.] children were “ready to be interviewed”. He knew that in the interim, they would be making “disclosures” to Marilyn Thompson. The videotaped interviews of each of the [R.] children were conducted in the “soft room” at the police station. Anatomical dolls and other props were utilized. The interviews were conducted jointly by Dueck and Bunko-Ruys, with Dueck taking the lead and Bunko-Ruys following up on his lead to elicit more “disclosures”. Several lengthy interviews were conducted by Dueck and Bunko-Ruys in October and November of 1990. [M.R. 1] was interviewed three times – on October 20 and 28, and November 16, 1990. [M.R. 2] was interviewed three times – on October 21 and 28, and November 15, 1990. [K.R.] was interviewed four times – on October 21 and 28, and November 15 and 29, 1990.

[103]              Each one of these interviews was viewed in its entirety in the courtroom during the trial. Although it was frustrating and exasperating to have to sit through each of them, they are likely one of the most convincing pieces of evidence in support of the plaintiffs’ malicious prosecution cause of action. I made copious notes of what was said and what was left unsaid. I made detailed notes of the interview techniques that were utilized and of my perceptions of the conduct and demeanour of the children and of the interviewers themselves. It would serve no useful purpose to relate the details of these notes or to reproduce sections of the transcripts of the videotaped interviews of the [R.] children that were prepared months later for the plaintiffs. The general comments I make apply to all the interviews of each of the [R.] children even though they apply more to some interviews than to others.

[104]              The interviews depict the [R.] children, particularly [M.R. 1], as thoroughly enjoying the process. The children had a captive audience comprised of two gullible adults who hung on every word they uttered, nodding in unison at each “disclosure”. [M.R. 1] often insisted that he be allowed to demonstrate what he was saying. He drew diagrams and demonstrated with knives that he had brought with him. The only time the children’s interest in performing for their gullible interviewers began to wane, was when they began to get tired. Their interest then turned to requesting treats or invitations to eat out at a restaurant. The children were repeatedly lead by their interviewers with questions that suggested the answers they sought of them. It was obvious, in many instances, that the responses of the children were “off the cuff” fabrications to provide details or explanations for their previous fabrications.

[105]              None of the “disclosures” of the children were gently or even obliquely questioned or challenged but were accepted at face value. Nor were the children properly cautioned about the need to tell the truth. In fact, they were repeatedly told by Dueck that kids do not lie and that he believed everything they said. They were also told repeatedly by Dueck that, as a police officer, he would get the adults that did these things to them and put them in jail, a comment that was welcomed by the children. Both Dueck and Bunko-Ruys intervened to divert the children from talking about their own “touching problems” and encouraged them to talk about the adults who had abused them and who were responsible for their “touching problems”. On at least one occasion, in an interview of some of the other children from whom Dueck had obtained “disclosures”, he referred to himself, Bunko-Ruys and the child being interviewed as part of the “team” that was going to get these perpetrators of abuse.
 
[106]              The conduct and demeanour of the children during the interviews were in stark contrast with the reserved conduct and demeanour that is exhibited by most children when they are being asked questions about potential sexual abuse. Although I did not observe the conduct or demeanour of the children when they testified at the preliminary inquiries or at the trial, I did read all the transcripts which included not only their testimony and comments, but everything that was said to them. I have a great deal of difficulty accepting that these particular children were as traumatized by the court proceedings as has been made out by the defendants. As I will relate in more detail later, every concession conceivable was made to accommodate the “needs” of the children for frequent breaks during the day and adjournments to another day when they became tired. The transcripts reveal that the children expressed little fear or reservation of being required to testify when asked specifically if they were afraid or uneasy.

[107]              I strongly suspect that if the children involved in the case before me were in fact traumatized, it was because they were finally confronted by someone who did not accept their allegations at face value and who had the audacity to gently challenge these allegations. They had to admit to lying when confronted with the glaring inconsistencies in their evidence. They found it difficult and stressful to attempt to maintain their fabricated allegations. The fact that the testimony of the children degenerated into a jumble of inconsistencies, not only in the testimony of one to another, but within each child’s own testimony, was a strong indication that their allegations were fabrications. As mentioned before, the children were given numerous breaks, court was often adjourned to another day, and many other considerations were afforded to the children to minimize any discomfort, stress or trauma that might accrue to them by being required to testify. As one defence counsel observed in one of the proceedings, the length of time it took to complete the cross-examination was not because it was lengthy, but because of the numerous and lengthy breaks taken to accommodate the children.

[108]              It must also be borne in mind that the Crown, over the objections of the plaintiffs, had convinced the courts to adopt special measures to minimize the potential trauma to the children. The public and the media was excluded from the proceedings when the children testified. The alleged perpetrators were hidden from the children by being huddled behind a screen. The judges doffed their gowns before conducting the proceedings. The children were given a special room in the judges’ chambers and presumably entered and left the courtroom by the same doorway as was utilized by the judge. Their wishes for breaks were honoured and the court proceedings were adjusted to suit their convenience. One cannot fault the plaintiffs from perceiving that the deck was stacked against them.

[109]              Like other judges of this court, I have conducted many sexual assault trials involving child complainants from age 4 to 17. My colleagues and I take time to develop a rapport with the child and take steps to ensure that child feels secure in the courtroom. This includes protecting them from contact with the persons accused by them and precluding aggressive, intimidating or unfair cross-examination. In most instances, as in the subject case, the prosecutor has previously familiarized the children with the courtroom and the court process and the children have the benefit of a support person and a “soft room”.

[110]              In only three cases has a child in my courtroom been “traumatized” on the witness stand. In one case it was because a high school class sat in during testimony given by a young teenager who had been sexually assaulted by her stepfather. Sending the class on to another courtroom where another trial was in progress solved the problem. In another case, it was because the child had fabricated a story that began to unravel when reliable independent evidence established that the story could not possibly be true. In the third case, it was because a parent was attempting to use the child as a sword in a matrimonial matter by counselling the child to give false evidence. Fortunately, the child had the courage to refuse to do so.

[111]              I relate this information to illustrate that the prosecutors deliberately overplayed the “trauma” concern to focus the criminal court proceedings on the “needs” of the children rather than on the validity of the allegations and the guilt or innocence of the plaintiffs. In some of the proceedings there was likely more testimony adduced by the Crown about the children’s needs than there was about what the children said was done to them. As well, the “trauma” concern was successfully relied upon to supposedly explain the wholesale inconsistencies in the evidence of the children.

[112]              There are several reasons why the videotaped interviews of the [R.] children that I have described are so critical to the case before me. The first is that the interviews by and large constitute the entire police “investigation” conducted by Dueck. His detailed police report was based primarily on the information he obtained from these interviews. He carried out virtually no other investigation respecting the allegations of the children and relied almost exclusively upon these allegations to found the charges brought against the plaintiffs. He considered that these allegations were corroborated in a fashion by the Yelland medical reports and by the similarity between the allegations of abuse of one [R.] child to that of the other. It should have been evident to him, however, that by the time he interviewed the children, they had made many of their “disclosures” as a group to Marilyn Thompson and may well have done so in this fashion to Bunko-Ruys. They also played together every day and had ample opportunity to discuss their allegations among themselves, particularly over the extended time involving several weeks when they were being interviewed.

[113]              Dueck and Bunko-Ruys spent weeks interviewing the children. Dueck spent more weeks reviewing the videotaped interviews to make notes of them. From these notes, he quite properly allocated the allegations into two categories. The first identified the allegations made by each individual [R.] child. The second identified the allegations made against each individual alleged perpetrator. This exercise lead to his detailed occurrence report. Although Dueck is to be commended for such attention to detail, he seems to be of the view that this exercise in itself constitutes an investigation. I am not convinced that this is so. The colloquial “garbage in, garbage out” principle of computer usage is instructive. If the allegations were fabrications, the categorization or segregation of those fabrications could not change the nature of them into credible complaints. They would still be fabrications, albeit categorized ones.

[114]              If Dueck had utilized the process he adopted to critically assess the credibility or feasibility of the allegations, that process could truly constitute part of his investigation. Anyone sufficiently interested and willing to invest the time in such an exercise, would reject his contention that the similarity of the children’s allegations corroborated their evidence. The inconsistencies that are readily discernable by means of such exercise, cannot stand together.

Medical Reports

[115]              The medical reports of Dr. Yelland were relied upon by Dueck and Miazga as corroboration of the [R.] children’s allegations of sexual abuse they made against the persons to be charged. The professional testimony of Dr. Yelland and his opinion evidence as an expert was adduced and relied upon by Miazga at each of the preliminary inquiries and at the trial. This reliance was, for the most part, unfounded for the reasons I will outline. It is first necessary however to review in detail the medical reports that Dr. Yelland gave to Social Services respecting each of the [R.] children which I previously referred to in general. These reports were available to and known by each of the defendants.

[116]              Dr. Yelland had assessed the [R.] children in June 1990 within a few days of [M.R. 2] and [K.R.] being moved out of the Klassen home and into the Thompson home. He reassessed the children a year later on May 31, 1991, presumably at the request of Social Services on the suggestion of Miazga. By this time, Dueck had already made arrangements for the arrests of the plaintiffs, after being advised by Miazga to proceed with the charges. Dr. Yelland sets out his findings and opinions in his reports dated June 1, 1991 respecting [M.R. 2] and [K.R.] and in his report dated June 7, 1991 respecting [M.R. 1].

[117]              In his court testimony, Dr. Yelland confirmed that complete physical examinations were done in each case on each of the children and that he was looking in particular for signs of sexual abuse which often involves physical abuse. I will refer to the marked difference between the 1990 report and the 1991 report respecting each child.

[118]              In his 1990 report respecting [K.R.], then eight, he states that she made no disclosures of sexual abuse to him but reported an itchy bum that she had had for three months. She had only a remnant of hymen present. He noted that:

These findings are highly compatible with abuse having occurred in this child in the form of penetration of the vagina or rectum. The source of this abuse cannot be specified and may be from a penis, digital penetration, or penetration with a foreign body.

There is no indication that [K.R.] disclosed any sexual abuse.

[119]              In his 1991 report respecting [K.R.], he states:

. . . Vaginal exam in (sic) abnormal for a remnant of the hymen only being present. There is marked injection of the perivaginal area. The vaginal diameter is 1.2 cm. . . . The rectal tone is decreased with fecal staining being present. . . . and the diameter is over 1 cm on digital exam. There are no scars in the rectal area, but there are mild rogous changes present. . . .

[120]              In his 1990 report respecting [M.R. 2], then eight, he states that:
 
. . . There is marked redness and injection of the labial minora area. She has scarring of the introitus. The hymen itself is intact and the rectal tone is normal.

This child has some minor redness of the labia minora area and scarring of the introitus. This may by (sic) suggestive of local irritation of the area secondary to infection or to manual manipulation. At the present time there is no evidence of penetration of the vagina itself and all I can say at the present time is that these findings would be consistent with sexual abuse in the form of fondling.

There is no indication that [M.R. 2] disclosed any abuse.
 
[121]  In his 1991 report respecting [M.R. 2], he states that:

. . . The vaginal examination is abnormal for the hymen being torn in a cresentic (sic) fashion with a total diameter of 7 mm. At the edge of the right labia she has cleft-like 2 mm tear at the edge of the hymen and the labia minora. She has a 3 cm scar in the anterior aspect of the rectum. The rectal tone is decreased and it is over 1 cm in diameter. There are increased markings in the rectal margins. There is also marked redness and agglutination in the labia minor area. . . .

This child has both physical scars and vaginal and rectal findings that are compatible with her history of multiple sexual abuse.

[122]  In his 1990 report respecting [M.R. 1], then 10, he states:

. . . The rectal area showed soiling and excoriation present. There was decreased rectal tone. . . .

This child’s rectal findings are compatible with a history of Sodomy. At the present time there are no scars or lacerations suggestion (sic) recent abuse. The decreased rectal tone could be secondary to this cause. . . .

 
[123]  In his 1991 report respecting [M.R. 1], he states:

. . . The penis is noncircumcised (sic) and the scrotum is normal in appearance. There is marked decrease in rectal tone with soiling present. There is a .5 cm scar in the anterior edge of the rectum. . . .

. . . He also has decreased rectal tone and scarring in the rectal area that is compatible with the history of sexual abuse that he reveals.

[124]  Dr. Yelland’s practice as indicated in his reports and his subsequent testimony in the civil case, was to obtain a “history” of any sexual abuse from the child brought in for examination and from the care giver who brought the child in. The 1990 reports demonstrate that neither [K.R.] nor [M.R. 2] gave a history of sexual abuse. The 1990 report respecting [M.R. 1] demonstrates otherwise. He, or Marilyn Thompson, obviously told Dr. Yelland about [M.R. 1]’s sexual abuse allegations. Somewhat surprisingly, Dr. Yelland makes unequivocal statements of fact about this alleged abuse that is not demonstrated by his physical examination. He states:

. . . This child has been extensively sexually abused in the past. This includes Sodomy. The child states that his most recent episode occurred in 1988 when grandpa Klassen put his penis in [M.R. 1]’s bum. There is an extensive history of Sodomy of this child in the natural parents’ home that involved the father, mother, and boyfriends. . . .

. . . This child does have a tendency to dress up in women’s clothing.

These statements in the report were not qualified to simply represent what [M.R. 1] or Marilyn Thompson told him. There were stated as a matter of fact or opinion. The sole basis for them was [M.R. 1]’s unchallenged and unsubstantiated abuse allegations. These statements should not have been included in a supposedly professional report of a physical examination that is to be relied upon as independent evidence of the person alleging the abuse.

[125]              The 1991 reports of the physical examinations by Dr. Yelland of the children, then 9 and 11, that I have outlined, demonstrate that there was more genital evidence of sexual abuse in 1991 than there was in 1990. This is so particularly for [M.R. 2] in that she no longer had an intact hymen or good rectal tone. Yet the children had not had any contact with their alleged perpetrators between the 1990 and 1991 examinations. In the 1991 examinations, Dr. Yelland found evidence of several scars on the children that in his opinion had been caused by cuts and burns. He had not noticed these scars the previous year despite doing a complete physical examination on each of the children.

[126]              It is obvious from his 1991 reports that his observations about the scars were based on the allegations made to him by the children. It is also obvious from his 1991 reports that the girls were making allegations of horrendous incidents of past sexual abuse despite the fact they had made none in 1990. The inescapable conclusion was that [M.R. 1] was continuing to abuse them in the Thompson home. Although the 1990 reports show that [M.R. 1] had “disclosed” one incident of abuse by Peter Klassen in 1988, the 1991 reports show that he had vastly expanded his repertory of abuse incidents and the number of the perpetrators who had abused him.
 

[127]              In his 1991 medical reports, Dr. Yelland again makes statements of fact that are based solely on the unsubstantiated allegations of the children rather than on his physical examinations. In his report respecting [K.R.] he states:

. . . These children are victims or (sic) ritual and sexual abuse. The initial ritual and sexual abuse had occurred in their natural parents’ homes. They were subsequently sexually abused in the Klassen’s foster home prior to this present placement with the Thompson family.

He goes on to say that all three children were sexually and ritually abused and that [K.R.] described in graphic detail some of the ritual abuse that had occurred from infancy. [K.R.] related being burned and cut with knives, having knives inserted into her bum and vagina, and ingesting blood, feces, urine and raw fish. He says that all three children described in graphic detail the sexual abuse that occurred which includes oral, vaginal and genital contact. He also observes: “The older brother, [M.R. 1], has had intercourse with both girls.”

[128]              In his report respecting [M.R. 2], he makes similar observations about the ritual and sexual abuse suffered by the children at the hands of their birth parents and Donald White and also at their previous foster home involving Dale and Anita Klassen and a Diane Klassen [presumably D2.K.]. Again it involved oral, vaginal and anal sex and cuts and burns. In his report respecting [M.R. 1], Dr. Yelland makes similar observations and particulars of the ritual and sexual abuse at the hands of his natural parents and stepparents, including being deliberately burned by Anita Klassen. He also notes that [M.R. 1] has had sexual activity with his younger sisters.

[129]              Each of the reports indicates that he is shown and notes physical scars which he states are consistent with the allegations of abuse by the children. He obviously is not told, nor does he appear to inquire, about any injuries the children may have suffered as a result of falls, school or home accidents and the like. Presumably, the serious injuries [K.R.] suffered when [M.R. 1] pushed her under the moving car would have accounted for many of the scars referred to by Dr. Yelland in his report.

[130]              I make these rather lengthy observations to illustrate that the reliance on these medical reports by both Dueck and Miazga as bolstering the credibility of the children who made these incredible allegations, was not reasonable. They knew as a fact that [M.R. 1] was having sexual relations with his two sisters while he lived at the Klassens. They also knew as a fact that those relations continued while he lived at the Thompsons. They also knew as a fact that [M.R. 1] was sexually active with many other children. They knew as a fact that [M.R. 2] and [K.R.] were sexually active with one another and with others. For the most part, the medical reports merely confirmed that the children were sexually active. The findings outlined in the reports also suggested that the children became more sexually active after they left the Klassens and were placed together in the Thompson home. They also suggested that the injuries that had healed were suffered when the children were young and living with their birth parents.

[131]              Yet Dueck and Miazga deliberately disregarded these facts known to them that strongly inferred that it was the sexual activity between the children themselves that provided the so-called independent medical evidence upon which they relied. Instead, they seized on the incredible allegations of the children, rather than on the known facts, to infer that the medical evidence pointed to abuse on the part of the 12 plaintiffs.

[132]              It appears that Dr. Yelland ignored the most feasible source of the abuse as well. In my respectful view, his involvement in establishing the Saskatoon Sexual Abuse of Children Protocol and the volume of his practice that resulted from Social Services referrals, clouded his professional judgment and blinded him to any other conclusion than one that was consistent with the wild stories the children were telling him. As well, his clouded judgment may have impacted on his testimony in the court proceedings which followed. I will omment on his involvement and testimony in these proceedings later.
 
Initial Prosecutorial Advice Obtained by Dueck from Hinz

[133]              Dueck zealously continued to pursue his case despite the advice he had previously sought and obtained from Terry Hinz, an experienced Crown prosecutor at that time. Dueck consulted Hinz likely in early April 1991, a short time before Miazga became involved in the case as a prosecutor. In general terms, Dueck left the detailed occurrence report that he had prepared with Hinz to review and asked him to advise him of the merits of his case. The occurrence report set out the bizarre allegations of the [R.] children against the 16 individuals Dueck proposed to charge with various offences. It also named other individuals whom Dueck did not intend to charge.

[134]              Hinz took the report home on the weekend to read it over. He advised Dueck that if the children’s allegations were true, he was dealing with a murder case and needed to investigate the case further to find evidence that would support such bizarre allegations. Dueck obviously did not like the advice he received so he ignored it and sought out another prosecutor who would be more sympathetic to his cause and point of view. I will have more to say about the Hinz consultation later.

Prosecutorial Advice Given by Miazga to Dueck

[135]              Both Dueck and Miazga have distanced themselves from the decision to lay the multitude of charges that were brought against the plaintiffs. Dueck claims he sought out the advice of the prosecutors because this was a difficult case and he did not want to lay charges without advice. He claims he was advised by Miazga as to what charges should be laid before he swore the informations that set out the charges. Miazga claims that although he reviewed the file and Dueck’s police report, it was Dueck who decided who and what to charge. Miazga told Dueck to go ahead with the charges if he “believed the children”.

[136]              I find this advice somewhat puzzling as it fails to address a material element of what is required before a police officer can lawfully proceed to lay an indictable criminal charge. The charges laid in this case were indictable criminal charges. It is trite law that charges respecting indictable criminal offences cannot lawfully be laid unless the person who lays them has reasonable grounds to believe that the individuals charged have committed the indictable offences charged. See s. 504 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and the wording of the form of an information set out in Form 2 of s. 849. Charges are laid by means of swearing an information in Form 2. This involves not only the subjective element of an honest and personal belief, but also the objective element of reasonable grounds for the holding of that belief. Accordingly, simply holding the belief is not sufficient to justify the laying of the information. There must be reasonable grounds for that belief.

[137]              I realize that an experienced prosecutor like Miazga would not overlook such a material requirement of advising an investigating officer respecting the laying of charges that pertain to indictable criminal offences. But I can find no evidence that Miazga ever considered this issue or cautioned Dueck about it. Surely in the circumstances of this bizarre and convoluted case that implicated at least 16 individuals, those involved in pursuing the case would have made an assessment of not only their respective beliefs but also of the grounds on which those beliefs could be reasonably founded. It may have been assumed that reasonable grounds existed, but considering the case in perspective as I have previously outlined, the apparent lack of reasonable grounds should have been seriously questioned, discussed and addressed, particularly by Dueck and Miazga.

[138]              It was at this juncture of the case that the considerable quantity of exculpatory evidence should have been considered to determine what impact, if any, it had on any reasonable grounds that could be relied upon. The determination of whether reasonable grounds existed could not be determined without a consideration of the exculpatory evidence as well as the inculpatory evidence. By way of example, there were the protestations of innocence by numerous individuals, many in the course of voluntary police interviews granted without the benefit of legal counsel. As well, the credibility of the allegations made by the [R.] children were bizarre and most unusual and by their very nature were extremely suspect. The credibility of the allegations and of the [R.] children themselves was the most critical issue of the case. The police report was comprised solely of these allegations. They alone were what was relied upon to lay the proposed charges against the 16 individuals who had been singled out, and then to prosecute them on those charges. It was known even then that the [R.] children were not truthworthy.

[139]              It was also at this juncture, in the unusual circumstances of this case and the potential for disaster if the allegations were false, that the potential frailties in the Crown’s case should have been at least summarily considered.

[140]              Before advising Dueck, Miazga did not avail himself of the opportunity to view any portions of the videotaped interviews of the children to observe their demeanour or to assess the potential strengths or weaknesses of their allegations. Nor did he appear to consider the manner in which such critical allegations were “disclosed” to determine whether the evidence to be given by the children might have been contaminated by the significant involvement of individuals who were not professionals in obtaining those “disclosures”. Again, this was not a simple and seemingly credible case of a child relating an inappropriate sexual touching or an assault by a parent or relative. I have great difficulty accepting that Miazga would have advised Dueck to proceed against so many people on so many serious allegations without even a preliminary consideration of these issues and a cursory look at the children on whom he would almost exclusively have to rely later at trial.
 
[141]              Miazga obviously intended to eventually view the videotaped interviews of the children and to personally interview them prior to the preliminary inquiry. But in the unique circumstances of this case, Miazga could not responsibly or reliably determine the merits of the case before he had done one or the other. To advise Dueck to lay charges without doing so was not only irresponsible, but is a strong indication of malice. This was not a case where a snap decision had to be made because of urgent circumstances.

[142]              The charges had been contemplated for a year after the initial “disclosures” were made. Dueck had deliberately deferred laying charges to give him time to obtain as many “disclosures” as possible from the children on which to base his proposed charges. There were no concerns about the immediate arrests of the plaintiffs. Dueck was not planning on arresting them until mid July when their children would be apprehended as well. Deferring the charges for a few weeks until these matters could be properly considered would not have jeopardized the case and would likely have prevented the disaster that followed.

[143]              It appears that Miazga did not really care whether there was a case worthy of prosecution or not. His attitude, and the rationale underpinning his advice, appeared to be that the children had uttered these allegations, Dueck had said he believed the children, so criminal charges should follow. If it turned out that the charges had no merit, let the courts sort the mess out later. But it was at this juncture, in the unusual circumstances of this case and the evident potential for disaster if the allegations were false, that the frailties in the Crown’s case should have been seriously reviewed and considered. What should also have been considered is what impact the charges and the criminal proceedings that would follow, would have on the welfare of the children who would necessarily be drawn into it as crucial witnesses. There is no evidence that this even entered the minds of any of those involved in the prosecution despite their subsequent protestations that the children were being extremely traumatized and harmed by having to testify in court.

[144]              Dueck and Miazga were aware of the Saskatoon Sexual Abuse of Children Protocol I will describe later. Both had participated in meetings with Social Services personnel and in particular with Bunko-Ruys. The exhortation in the Protocol to believe the allegations of children, undoubtedly had a bearing on the advice Miazga gave Dueck respecting the feasibility of the charges.

[145]              I jump ahead to relate some significant events that subsequently took place in Red Deer respecting the arrests of the plaintiffs who lived in Red Deer and the apprehension of their children.
 
The Involvement of Social Services in Red Deer

[146]              Sheila Verwey testified at the trial. She is a social worker with Alberta Family Services in Red Deer and has been involved for several years in child welfare investigations. She has had considerable experience in interviewing sexual assault perpetrators as well as sexual assault victims and has taken several courses in this regard.

[147]              Her supervisor was contacted on April 28, 1991 by a social worker with Social Services in Saskatoon. Alberta Family Services was asked to assist Saskatchewan Social Services respecting a police investigation. In particular it was asked to apprehend the eight children of three groups of parents who lived in Red Deer and who would be arrested in July for sexually assaulting children. Verwey was one of three workers assigned to the case. Alberta Family Services was not given much detail about the sexual and physical assaults alleged against the parents of these children. But the allegations included sexual and physical assaults against their former foster children, against other children and against their own children. Alberta Social Services was asked to take no immediate action but to be ready to get involved when the arrests were made.

[148]              By May 27, 1991, Alberta Family Services personnel had heard nothing further from Saskatchewan Social Services personnel so the supervisor called Saskatoon to see what was happening. Dueck returned the call and left a phone message on June 21, 1991 to advise that he was coming to Red Deer on June 24, 1991 to interrogate all the Klassens who lived there. Dueck and his partner James Walker, met at the police station in Red Deer with Verwey and the other Alberta Family Services social workers assigned to the case the day before he interviewed the plaintiffs. Verwey observed that Dueck appeared to be confident of what he was doing and also appeared to be excited and enthusiastic. He felt that he had an important case and that he was in the middle of a big investigation.
 

[149]              He gave the Alberta Family Service social workers some background information to the effect that foster children had made allegations of ritualistic and satanic sexual abuse involving the individuals, including the Klassens families and their former foster children and their own children. Dueck stated that the eight Klassen children were also victims of the abuse and this was why he wanted them apprehended, examined medically for indications of abuse and then interviewed for “disclosures”. The social workers were uneasy about the circumstances that Dueck was relating to them and they asked him a number of questions. Presumably to allay their concerns, Dueck gave them a copy of his occurrence report to review.

[150]              The social workers went back to their office and discussed the matter for some time. They were unsure of their role as they were uncomfortable with what they had learned in the meeting and did not come to the same conclusions about the case as did Dueck. Dueck used the term “ritualistic abuse” to describe the events which, to Verwey, meant organized events that followed the same pattern. The Alberta Family Services social workers were not sure that they had been given enough information to justify the apprehension of the children. Verwey testified that part of the role of a social worker is to be open-minded and to screen information respecting alleged abuse even though proof of abuse is not expected. The Alberta Family Service social workers were not saying that what the foster children in Saskatoon were alleging was completely impossible, but they did not come to the same conclusions as did Dueck on the information he provided to them.

[151]              The Alberta Family Services social workers acknowledged that their role was not to pass judgment on Dueck’s investigation. But they were having trouble evaluating the bizarre allegations of the children and even after considering his occurrence report, still could not come to the same conclusions about their allegations as had Dueck. Verwey discussed her concerns with Cst. Richard Taylor, one of the Red Deer police officers whose assistance Dueck had enlisted, and asked him whether the Alberta Family Services had to agree that the sexual assaults alleged had in fact occurred.

[152]              Verwey and Taylor concluded that this was not a question that had to be addressed by Alberta Family Services. If arrest warrants were sent from Saskatchewan, Alberta Family Services had to carry out its support role of Saskatchewan Social Services that was not asking Alberta Family Services for its input. I pause to observe that Taylor was in effect telling Verwey that she need not be concerned about lack of honest belief or reasonable grounds if Dueck could get a warrant from Saskatchewan. It was Dueck’s problem whether or not there were grounds, not her problem. Taylor said that it would be inappropriate for Saskatchewan Social Services to ask if Alberta Family Services agreed with the case. The role of Alberta Family Services was to apprehend the eight Klassen children, interview them about potential abuse and have them examined medically for indications of abuse. Verwey read the report again at home but it did not make her feel any less uncomfortable. The material did not answer her questions. She was distressed about the case and about the children she would be required to apprehend. I realize that Verwey’s evidence about what Taylor said would be hearsay evidence if the truth of what he said was relied upon by the plaintiffs. They rely only on the fact it was said. This is similar to the evidence adduced by the defendants that I will outline later as to what the preliminary inquiry judge said to the prosecutors.

[153]              Dueck advised Verwey that he would get the warrants that would be required to effect the arrests and that he would be back very shortly to effect the arrests. He wanted the Klassen children to be apprehended and interviewed concurrently with the arrests of their parents. Apprehension orders were then obtained by Alberta Family Services from an Alberta judge. The orders were sought and obtained not on the basis of the alleged abuse of the children, but on the basis that the parents were being arrested and the children would need guardians.

[154]              Verwey apprehended the three children of Richard and Kari Klassen: K.K, eight, K.K., two and B.K., six months, from their home and took them into foster care on July 10, 1991, the date the other children were apprehended and the arrests of the plaintiffs effected. Verwey testified that Richard and Kari Klassen were cooperative but shocked, angered and full of disbelief at what was happening. She observed that their three children were the focus of their home as evidenced by drawings on the fridge and the walls and the presence of toys. Kari Klassen was crying and concerned about giving instructions to the social workers for the care of her six-month-old baby. She sent toys and other things along with the child. Richard and Kari Klassen did not want their children to see them being taken away by the police. Other social workers apprehended the three children of Dale and Anita Klassen. The two children of John and Myrna Klassen were not apprehended or interviewed because they were holidaying with friends.

[155]              The six Klassen children who were apprehended were subsequently interviewed on videotape and sent for medical examinations by doctors who were advised to look for signs of sexual abuse. The examinations revealed no indications of sexual abuse. Nor did the interviews of the children indicate or suggest that they had been sexually abused or that they had any knowledge of the sexual abuse of others.  Alberta Family Services had no concerns about the potential sexual or physical abuse of the children nor any other protection concerns. The children were ultimately unconditionally returned to their parents once the parents had been released in Saskatoon from custody.

[156]              Because Alberta Family Services did not have any protection concerns respecting the two children of John and Myrna Klassen who were not available to them, they did not apply for protection orders respecting them. All this information, including the results of the examinations and interviews, were communicated back to Saskatchewan with the views of Alberta Family Services personnel that the children had not been sexually or physically abused. Verwey had been advised that Dueck was in charge of the Saskatchewan Social Services investigation. Yet he never advised Alberta Family Services that some of the same children that he was asking them to apprehend, had been medically examined the previous year for potential sexual or physical abuse with no indications being found. The documents tendered at trial establish that the two oldest children of Dale and Anita Klassen, T.K. and J.K., had been medically examined by Dr. Yelland for potential sexual abuse at the insistence of Saskatchewan Social Services with no indication of abuse being found. This is just another indication of Dueck’s pre-judgment of the case and his desperate attempts to find some reliable evidence of abuse.

[157]              Prior to being contacted by Dueck, Alberta Family Services had received no complaints respecting any of the Klassens or their children. In the two months that followed the apprehension, they received some malicious calls. After a preliminary investigation, they decided there was nothing to investigate further. Alberta Family Services has had no further contact by Dueck since July 10, 1991 nor has any Saskatchewan prosecutor ever contacted them about the case. To Verwey’s knowledge, no one has ever asked for the videotapes of the children’s interviews. Nor has anyone asked for a report or letter summarizing the outcome of the investigation. Again, this is an example of the mind-set of those involved in the investigation. This is indicative of how the defendants consistently ignored and suppressed any exculpatory evidence despite finding no support for the allegations they so diligently pursued.

[158]              Verwey testified that Alberta Family Services has subscribed to a protocol similar to the Saskatoon Sexual Abuse of Children Protocol. One of its guidelines is that one must assume that child complainants are telling the truth. She testified that the protocol came about as a response to a generally held attitude prior to the 1980s. The attitude was that nice people do not assault children so that when children report sexual abuse they must be lying about it. The Alberta protocol was put in place to address the fact that sexual abuse does happen to children. She says that the protocol is a guiding principle, not a blanket statement. Children do not usually fabricate allegations out of the blue so their allegations must be taken seriously. But it is essential to then proceed with an investigation to see what the allegations are all about. She says that the procedure followed is that after the initial complaint, the police are contacted, all the potential witnesses are interviewed and the dynamics of the family, including its strengths and weaknesses, are considered.

[159]              In cross-examination, Verwey acknowledged that there was no note on the screening form (the intake memo form used by Alberta Family Services) that the Klassen children were victims of abuse as well as the other children involved. But she understood, from the information given to them by Dueck, that this was the assertion that had been made to them. She acknowledged that even though the children’s allegations of abuse were very strange and unusual, and even though there were a large number of people implicated, the allegations could be true. But she said their concern was not that such things could not happen. Rather, their concern was that Dueck was coming to the conclusions he did based on the information he had. She assumed that he likely had other information to support his conclusions, but she was still of the view that the assessment of the child complainants was of critical importance.

[160]              I found Verwey to be an honest and courageous witness. She is obviously an objective, competent and experienced social worker.

[161]              Verwey’s assessment of the underlying purpose and objective of a child sexual assault protocol, one that acknowledges the necessity for a proper investigation of sexual assault allegations of children, comports with common sense and is in accordance with what has been the law of free and democratic countries for years. No allegation from anyone, be they an adult or a child, can be taken blindly at face value and then acted upon without question. Doing so risks disastrous consequences including the wrongful conviction of innocent individuals. This case is a prime example of what happens when gullible child care workers, police officers and prosecutors ignore time-tested legal principles and throw common sense to the wind. The plaintiffs were wrongfully and needlessly put at risk for lengthy terms of imprisonment up to a maximum of 10 years on each offence charged against them. They faced that risk for one and a half years until all the charges were stayed by the Crown. In the decade since the stays, they have lived under a cloud of suspicion. It is no credit to any of the defendants that the plaintiffs did not have to endure the jail terms for which they were put at risk.
 
[162]              I move back to relate Taylor’s evidence. He testified that he received a call from Dueck in June 1991 asking for assistance. Taylor’s intended role was to locate the members of the Klassen family that Dueck proposed to charge so that Dueck could interview them at the police station. He was given a “Reader’s Digest version” of the case which he understood involved fourteen children who had made “disclosures” of abuse. I pause to note that the 14 children had to have included the Klassen children in Red Deer because at that time there were at most the three [R.] children and four others whose abuse allegations were being relied upon to found charges.

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

[164]              Dueck called Taylor on July 9, 1991 to let him know that the charges had been laid and to request Taylor to make arrangements for the arrests of the Klassens on July 10, 1991. Taylor was aware that Alberta Family Services would be apprehending the children. It is significant that he declined the request of Alberta Family Services to give evidence on their court application for the apprehension warrants respecting the Klassen children because he had no evidence to give that the children were at risk. The six Klassen adults were arrested on July 10, 1991 and at 7:00 p.m. on that date, a Justice of the Peace came to the remand centre and remanded them all for six days. After that period they were transported to Saskatchewan and spent another night in custody there. Taylor confirmed that all the medical examinations of the children who had been apprehended were negative for indications of abuse and that no disclosures had been made by them during their interviews.
 
[165]              Taylor confirmed the importance of keeping a notebook and of updating the central registry file as soon as possible. He says that Dale Klassen was at the police station for over an hour when he was interviewed by Dueck. This tends to confirm the testimony of Dale Klassen that the short videotaped interview of him that was viewed in court, represented only a small segment of his full interview with Dueck. I will comment on this later.
 

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

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

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

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

Miazga’s Involvement in Dueck’s Investigation

[170]              Miazga’s best estimate of his first meeting with Dueck is in late April or in early May of 1991. The evidence of Verwey establishes that Saskatchewan Social Services contacted Alberta Family Services on April 28, 1991 and Dueck himself called on June 21, 1991. It is more likely than not that Miazga first met with Dueck in April 1991 shortly after Dueck had met with Hinz. It is not clear whether Dueck contacted Alberta Family Services on his own initiative or on the suggestion of Miazga. Due to the professed inability of either of them to recall much in the way of detail respecting their meetings, what they discussed, what they determined to do or what they even thought about the proposed charges, there is little evidence before me to address these questions.
 
[171]              But it is known that after receiving advice from Miazga, Dueck did a few things that were suggested to him. Up until then, his investigation consisted solely of eliciting and recording the “disclosures” of the children. At the suggestion of Miazga, he obtained a couple of search warrants respecting the related [R.], [R.] and White potential charges. It appears from the evidence that he made arrangements to interview the plaintiffs in Saskatoon and Red Deer because of Miazga’s suggestion to do so. It would also appear from the evidence that he made arrangements to obtain the June 1991 Yelland medical reports respecting the [R.] children because of Miazga’s suggestion to do so.

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

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

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

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

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

Police Interviews of the Plaintiffs

[177]              I step back to comment in more detail on the police interviews of the plaintiffs I referred to earlier. Four of the six plaintiffs who lived in Red Deer, Dale and Anita Klassen and Richard and Kari Klassen, agreed to be interviewed at the police station there without the benefit of legal counsel. Walker, Dueck’s assistant, interviewed Kari Klassen. Dueck interviewed all the others. Four of the six plaintiffs who lived in Saskatoon, D1.K. and D2.K. and their two children, S.K. and S.K., also agreed to be interviewed at the police station there without the benefit of legal counsel. In the course of the interviews of the adult K., Dueck obtained their consent to interview their children about the offences alleged against those children. At the time of the subsequent arrests, Dueck interviewed the male K. child and as well either interviewed the female K. child or made arrangements for the interview of her. Although these two K. children had also been charged with sexual offences alleged against them, they were not asked questions about those allegations. Instead, they were aggressively questioned about being abused by their parents.

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

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

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

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

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

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

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

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

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

[185]              Dueck’s lengthy grilling of the plaintiffs, particularly Anita Klassen and D2.K., was far more aggressive, intimidating and humiliating than was required in the circumstances. It is one thing to grill a suspect and to use deception and other disgusting aspects of subterfuge that are at times a necessary aspect of police investigations when dealing with sophisticated, case hardened or street-smart criminals. But the pressure he brought to bear on these two female plaintiffs in particular, was reprehensible. To expedite the description of the interviews, I will comment on the things in common about both interviews even though the interviews were conducted separately and in different provinces.

[186]              Both of the former foster mothers unconditionally volunteered to be interviewed by Dueck on videotape at the police station without the benefit of counsel. Anita Klassen’s interview took place in Red Deer. D2.K.’s interview took place in Saskatoon. Both consented to answer Dueck’s questions without contacting a lawyer even though they were cautioned by Dueck at the outset of the interview about their rights to remain silent and about their rights to legal counsel. They were also told that anything they said could be used in evidence against them. Each of them was cooperative and each gave the appearance of having nothing to hide but simply wanting to get to the bottom of what was being alleged against them. Dueck gave them very few details of the allegations so they were never advised of what the children were saying they did to them. Instead, Dueck kept on telling them that the children who had been taken out of their respective foster homes had been in therapy and had made multiple “disclosures” of abuse against them.

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

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

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

[190]              D2.K. said that after the videotaped interview was concluded, Dueck told her that if she did not plead guilty, he would charge her children. Although I do not base any of my conclusions on this evidence, it is likely true.

[191]              Dueck’s grilling of Richard Klassen and D1.K. was just about as brutal. He also tried to get them to admit that they had been sexually abused as children. Fortunately he was not successful in putting them under the same degree of emotional pressure he had brought to bear on Anita Klassen and D2.K. It appears that only a part of the interview of Dale Klassen was videotaped so a comparison cannot be made as to what kind of pressure was exerted by Dueck on him. Except for Richard Klassen, who had a criminal record as a youth for unrelated offences, none of the other plaintiffs had police records and were just normal ordinary people trying to make a living like other normal ordinary people.
 
[192]              Dale Klassen claims that Dueck interviewed him for twenty to thirty minutes during which time he kept on telling Dueck that he had been advised by his lawyer not to say anything. Dueck ignored this information and kept on questioning him. Dale Klassen continued to deny that he had abused any children. The videotape is of much shorter duration than twenty minutes and simply depicts Dueck advising Dale Klassen of his legal rights and Dale Klassen responding that he was advised by his lawyer not to say anything. The tape does illustrate however, that Dale Klassen told Dueck of the instructions he had received from his legal counsel. Despite this, Dueck keeps questioning him, saying that he is obliged by the prosecutors to interview him. Dale Klassen finally asks if he can go and the tape ends.

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

[194]              By way of stark comparison, the interview of Kari Klassen by Walker, Dueck’s assistant, was done in a much more humane fashion. Although he pressed her for a confession and challenged her with questions, he did so in a gentlemanly manner and without putting undue pressure on her. As was the case with D2.K. and Anita Klassen, Kari Klassen seemed stunned and taken aback by the fact that child abuse allegations had been made against her. Kari Klassen had never been a foster mother. She consistently denied ever abusing any children, including any of the foster children who had made allegations against her. When she was asked for an explanation as to why the children were saying these things if they were not true, she responded with the only possible reason she could suggest. She had been advised that the children had been neglected or abused in their birth home and she suggested that they likely were making such allegations because they resented their parents.
 
[195]              In fairness to Dueck, I recognize that a police officer has a difficult job and it often involves unpleasant duties. Even competent police officers are sometimes zealous and aggressive. But there are limits to the degree of zeal and aggression that is acceptable in a free and democratic society. Dueck’s conduct in this case exceeds that limit. He often asked the plaintiffs he interviewed to respond to hypothetical fact situations that he posed to them that were not representative of the circumstances of the incredible allegations they faced. As an example, he asked some of the plaintiffs if they would disbelieve their children who ran into the house and reported being sexually assaulted in the park. What is particularly troubling about his zeal and aggression against the plaintiffs is that it so tainted and distorted his so-called investigation, that he was not willing to even consider the possibility that the plaintiffs could be innocent of the horrible allegations made against them. I conclude that his “investigation” was in reality no investigation. The conduct he exhibited in his interviews of the plaintiffs is a strong indication of malice.

Charges Laid Against the Plaintiffs
 
[196]              The particulars of the various criminal charges laid against the plaintiffs are somewhat convoluted because some were withdrawn and replaced by other charges and some were not laid until after the court proceedings had commenced. My summary is not strictly accurate but is adequate for the purposes of this judgment.
 
[197]              All the plaintiffs, except those who were proceeded separately against as young offenders, were jointly charged on July 6, 1991 with sexual assaults against [M.R. 1], [M.R. 2] and [K.R.], (the foster children in the Dale and Anita Klassen home), over a seven-year period of time between January 1, 1984 and December 31, 1990.

[198]              Pamela Sharpe was additionally charged on the same date with sexual assault against T.H., (a foster child in her home), over the same period of time.

[199]              S.K. (male) and S.K. (female), the two plaintiffs who were proceeded with as young offenders, were jointly charged on the same date with sexual assault against [M.R. 2], (a foster child in the Dale and Anita Klassen home), over the same period of time.
 
[200]              S.K. (male) was additionally charged on the same date with sexual assault against S.L.H., (a foster child in the K. home), over the same period of time.
 
[201]              John and Myrna Klassen and D1.K. and D2.K. were additionally jointly charged on July 15, 1991 with sexual assaults against each of S.W.H., S.E.H. and S.L.H., (foster children in the K. home), over the same period of time.

[202]              S.K. (male) and S.K. (female) were additionally jointly charged on July 18, 1991 with sexual assault against [M.R. 2], (a foster child in the Dale and Anita Klassen home), over the same period of time.
 
[203]              S.K. (male) and S.K. (female) were additionally jointly charged on November 19, 1991 with sexual assaults against [K.R.], [M.R. 2] and S.W.H., (the two [R.] children being foster children in the Dale and Anita Klassen home and S.W.H. being a foster child in the K. home).
 
[204]              S.K. (male) and S.K. (female) were additionally jointly charged on November 26, 1991 with sexual assaults against [K.R.], [M.R. 2] and S.W.H., (the two [R.] children being foster children in the Dale and Anita Klassen home and S.W.H. being a foster child in the K. home).
 
[205]              Pamela Sharpe was charged on November 27, 1991 with sexual assaults against M.K. and T.K., (foster children in her home).
 
Arrests of the Plaintiffs

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

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

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

[209]              The remaining six Saskatoon plaintiffs, Pamela Sharpe, Marie Klassen and the four K., were also arrested on July 10, 1991. They too suffered the humiliation and trauma of being arrested. Marie Klassen had to be taken to the police station in her wheelchair. She is now deceased and the desire that she carried to her grave was that she and her sons and daughters-in-law would be exonerated of the criminal charges in the eyes of the public. D1.K. is also now deceased. The proceedings affected him so deeply that he had his company switch him from his position as a residential electrician to one as a commercial electrician so that he could avoid coming in contact with any children. He was no longer able to touch his own children and lost the desire to have sexual relations with his wife, circumstances that continued until his death.

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

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

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

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

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

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

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

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

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

13 Where a report is made pursuant to subsection 12(1) or (4), an officer or peace officer shall investigate the information set out in the report if, in the opinion of the officer or peace officer, reasonable grounds exist to believe that a child is in need of protection.
                                                                       [Emphasis added]

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

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

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

[219]              The relevant part of the Statement of Beliefs is Clause C which provides: “Children bear no responsibility for their victimization by adults. They will be assumed to be telling the truth when reporting abuse.” This provision in the 1991 Protocol was expanded to add: “Their statements will be accepted and investigated.” I now move on to the Protocol provisions themselves.

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

[221]              The s. 2.1.2 guideline provides that: “The Department and the Police are commonly concerned first about the immediate safety of the child. Secondly, they are concerned about the protection and justice issues ”. Section 2.1.2.3 requires the police “to investigate the circumstances and facts of the alleged offence.”  The guideline states that: “Facts and descriptive information regarding the alleged offence will be necessary to determine the potential impact upon the child and the culpability of the alleged offender.”

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

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

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

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

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

[227]              Section 6.2 provides that: “ON COMPLETION OF THE INVESTIGATION, THE POLICE SHALL: 1) decide upon the appropriate charge(s), if necessary in consultation with prosecutors, 2) swear the appropriate information(s), 3) notify the appropriate officer of the Department of Social Services of the investigative conclusions, and 4) ensure the attendance of the accused at court.” The guideline for 6.2.1 provides that: “With sufficient evidence, the police may, in consultation with crown prosecutors if necessary, lay charges appropriate to the apparent crime.”  The guideline for s. 6.2.3 provides: “The police will notify the Department of: 1) the conclusion of their investigation, 2) what charges, if any, have been laid, 3) the status of the alleged offender ‑ vis‑a‑vis his access to the child(ren) in question, and 4) where applicable, the date of the first scheduled appearance of the accused in court.”
 
[228]              Section 6.5 sets out procedures to minimize the trauma to a child caused by a court appearance. These include arrangements for the introduction of the child to the prosecutor, an interview, a courtroom tour and possibly a request of the court that the case be placed at end of docket to protect the identity of the witnesses. Nowhere in the Protocol is the use of a screen or the “ungowning” of the judge suggested.

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

[230]              In other words, those involved in obtaining or investigating child allegations of abuse are not mere recorders of them. They have the duty (within their respective roles) to investigate and assess those allegations before proceeding with the laying of serious charges. Nor is there any indication in the Protocol to support the contention that a belief in the truth of the allegations must be maintained no matter how the allegations might subsequently unravel or become inconsistent with other credible evidence.
 
[231]              I move on to comment on how Bunko-Ruys and Dueck failed to comply with the Protocol. In her examinations for discovery, Bunko-Ruys says that she had no obligation to even consider the truth of what the [R.] children were disclosing because that was not part of her “role” as a therapist. She says that this is so even though she admits she was told that [M.R. 1] was an accomplished liar before she became his therapist. She says that this is so even though she admits that he lied to her on occasion both before the charges were laid and while the prosecution was underway. She maintains that she had no obligation to advise the court of [M.R. 1]’s propensity to lie even though she appeared as a supporting witness for the children and the Crown, even though she knew that the whole case depended on the credibility of the children, and even though she knew that the liberty of 16 individuals was at stake largely because of her testimony.

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

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

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

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

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

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

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

The Nature of the Criminal Proceedings

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

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

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

[242]              Much of what occurred during the one and a half years that these criminal proceedings occupied has little relevance to the civil case before me. But all the parties quite properly rely on these events to provide further evidence of the conduct of the defendants from which inferences of fact can be drawn that pertain to the material issues in the civil case before me. The parties disagree as to what those inferences should be.
 
[243]              The [R.], [R.] and White preliminary inquiry commenced on November 21, 1991 and ended on December 2, 1991. No child complainants other than the [R.] children were involved in the case so Miazga alone handled the prosecution for the Crown. Hansen did little more than sit in for a couple of partial days to observe [M.R. 2] and [K.R.] testify. [D.R.] was represented by Roger Kergoat, [H.R.] was represented by Jack Hillson and Donald White was represented by Donald Mullord. At the conclusion of the preliminary inquiry, [R.], [R.] and White were committed to stand trial on the charges brought against them.

[244]              The Klassen - K. preliminary inquiry commenced on December 2, 1991 and ended on January 16, 1992. Daryl Labach represented the Klassen family. Robert Borden represented the K. family. On December 2, 1991, at the outset of the preliminary inquiry, the charges brought against John and Myrna Klassen, Dale and Anita Klassen and D1.K. and D2.K. on the allegations of S.E.H. and S.L.H. were stayed by the Crown as were the charges brought against Peter Klassen on the allegations of M.K. Shortly after, on December 10, 1991, the charges brought against Pamela Sharpe and Peter Klassen on the allegations by T.H. were stayed by the Crown. On January 14, 1992, near the end of the preliminary inquiry, the charges brought against John and Myrna Klassen, Dale and Anita Klassen and D1.K. and D2.K. on the allegations of S.W.H. were stayed by the Crown.

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

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

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

The Role of the Defendants in the Criminal Proceedings

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

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

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

REST OF JUDGMENT