First half of Judgment

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

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

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

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

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

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

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

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

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

The Use of “Child Experts”

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

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

[262]              Dr. Yelland acknowledged that he did a complete physical examination of the children in 1990 with the sole and specific objective of detecting child abuse, the same thing that he did in 1991. He testified that he had gotten 200-400 referrals from Social Services over a four-year period prior to November 1991. In the following preliminary inquiry, he testified that he knew of only Dr. McKenna besides himself that did these physical examinations for Social Services. I have difficulty accepting that, with all his experience, he in effect botched his 1990 examinations. If I reject this conclusion, then I am left with the conclusion that he bases his medical reports more on the subjective “history” with which he is provided than on his own professional and objective observations gleaned from his physical examination of the children’s anatomy.

[263]              His evidence at the civil trial confirms my second conclusion. He outlined the graphic details of the bizarre and ritualistic abuse alleged to him by the [R.] children at the time he conducted his 1991 examinations. These allegations included the incredible and distasteful acts that I have described before and that I have no desire to repeat. These allegations were of a totally different nature from what he was told when he examined the children in 1990. At that time, the girls denied any abuse and the abuse related by [M.R. 1] was that he had been sodomized by his natural father. There were no allegations of being cut with knives or being burned. Dr. Yelland concluded that all these allegations were true based on the Thompson histories and the detailed allegations of the children.

[264]              Dr. Yelland located the scars on the children that they pointed to as being caused by the abuse. He said that his findings were compatible with ritualistic abuse even though he admits that he has no experience with ritualistic abuse. He says however that he was extensively involved with Social Services in developing the Saskatoon Sexual Abuse of Children Protocol. He confirmed his previous testimony that Social Services send children to Dr. Anne McKenna and himself respecting sexual abuse allegations. He said that his role is to try to document physical evidence compatible with the history of abuse provided to him.

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

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

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

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

[269]              Once he contaminates his professional findings by basing them in part on the allegations of the child he examines, any value of the report as corroboration of the child’s allegations is lost because the report is no longer evidence that is independent of the child’s allegations. A medical doctor has no more expertise than a lay person in determining the veracity of a child’s allegations by simply listening to the recounting of them. I acknowledge that this would not be the case if the doctor, for example, had some special expertise in child psychology and utilized the disciplines of that specialty to test or question the child in an attempt to verify the allegations. The examinations conducted by Dr. Yelland, however, were physical examinations, not psychological examinations.
 
[270]              The unobjective attitude displayed by Dr. Yelland respecting sexual abuse allegations is not unlike that of many of the child care workers who gave extensive evidence in the criminal proceedings. Many of the individuals who testified in those proceedings had a financial interest in referrals from Social Services. Numerous witnesses testified about the floodgates opening in the late 1980s in the number of child sexual assaults that began to be reported. As is demonstrated by the evidence in this case, this has created a growth industry for professional child care workers, professional child therapists and medical care professionals. This is understandable and likely beneficial, but if these professionals are to effectively serve the interests of the children entrusted to them, they must conduct themselves as professionals with a level of objectivity and independence that is apparent to anyone who is asked to rely on their opinions and reports. If they fail to do so, courts and other institutions or agencies that routinely receive these opinions and reports will lose confidence in them and will not rely upon them.

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

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

The Case Starts to Crumble

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

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

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

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

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

[278]              Despite the preliminary inquiry committals, Hansen and Miazga were having second thoughts about proceeding against the two plaintiff “young offenders”. Their trial was set to begin on February 3, 1992. The Crown eventually entered stays on all the charges against them. Miazga’s January 21, 1992 memo to the file and Hansen’s January 27, 1992 memo to the file, detail how unreliable all their remaining child complainants were as witnesses. The allegations of S.W.H. and [M.R. 2] and [K.R.] against the young offenders had been materially revised then recanted. The memos characterize the evidence of [K.R.] as “weak and sometimes incredible” and that of [M.R. 2] as having repeatedly “recanted on her testimony” in a fashion that ruled out a mistake or misunderstanding. The memos indicate the views of the prosecutors that the likelihood of convictions of the young offenders was low. Despite this dismal view of their primary witnesses, Miazga and Hansen continued on with the criminal proceedings respecting the adults.
 
[279]              The Crown wanted to proceed first with the [R.], [R.] and White trial and then with the Klassen - K. trial. The plaintiffs and their lawyers began to get ready for trial. The three Klassen families in Red Deer made arrangements to move to Saskatoon at the end of 1992 and to put their children in the Saskatoon school system.
 
[280]              Miazga prepared for the [R.] trial. Hansen helped him to locate more expert witnesses. In general terms, with a few exceptions, the same group of witnesses appeared at the trial as had appeared on the two preliminary inquiries. As the ritual and satanic abuse allegations of the children had come out in cross-examination and been examined in detail at the preliminary inquiries, Miazga called a psychologist, Dr. Santa Barbara, to try and explain how the children could be credible and yet make such untrue allegations. The defence called Michael Elterman, another psychologist. Again, the [R.] children’s testimony was incredible, full of inconsistencies and contradictions. Again, Miazga  relied on the sexualization of the [R.] children to establish that they had been sexually abused. By this time, there was little left of their evidence that had not been recanted or contradicted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[295]              It is essential to distinguish between the abuse allegations made by the [R.] children and those made by the other children. In general terms, the allegations of the other children pertain primarily to isolated fondling incidents that were committed by one or two individuals. The allegations of the [R.] children pertain to a multitude of bizarre, serious and disgusting incidents, including a memorized rote incident, that were repeatedly committed by a large number of individuals in a random fashion at various places. The truth of the former kinds of allegations is within the realm of probability. The truth of the latter kinds of allegations is not even within the realm of possibility.

[296]              The rote incident allegation to which I refer appears literally hundreds of times in the Thompson notes, the videotaped “disclosures”, and in the interviews and the transcripts of the various court proceedings. If [M.R. 1] was naming a female perpetrator, he would say: “she put her finger in my bum and touched my penis and I had to put my penis in her vagina and bum”. Often he would add: “and I had to suck her boobs”. If he was naming a male perpetrator, he would say: “he put his penis in my bum and touched my penis and I had to suck his penis and put my penis in his bum”. [M.R. 2] and [K.R.] made the same type of rote allegation. If they were naming a male as the perpetrator, they would say: “he put his penis in my vagina and bum and I had to put my finger in his bum and suck his penis”. If they were naming a female perpetrator, they would say: “she put her finger in my vagina and bum and I had to put my finger in her vagina and bum”. Often they would add: “and I had to suck her boobs”.

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

Analysis

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

The Law Respecting the Tort of Malicious Prosecution

1. The Classic Elements and their Definition (Nelles)

[299]              The elements of this cause of action were clearly identified several years ago in Nelles v. Ontario, 1989 CanLII 77 (S.C.C.), [1989] 2 S.C.R. 170 at 193 as follows:

a)         the proceedings must have been initiated by the defendant;

b)         the proceedings must have terminated in favour of the plaintiff;

c)         the absence of reasonable and probable cause;

d)         malice, or a primary purpose other than that of carrying the law into effect.

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

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

[301]              The court defined at p. 193 the fourth element as follows:

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

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

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

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

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

[304]  The role of a Crown prosecutor was described years ago by the Supreme Court of Canada in Boucher v. R., 1954 CanLII 3 (S.C.C.), [1955] S.C.R. 16 at 23-24:

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

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

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

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

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

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

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

5.         A prosecutor cannot rely on consultations that he had with colleagues and superiors if he knew more about the case than they did. As the holder of an important office under the Criminal Code, the decision to lay the charge was his and his alone: R. v. Campbell, 1999 CanLII 676 (S.C.C.), [1999] 1 S.C.R. 565. (para. 33)

6.         A suit for malicious prosecution must be based on more than recklessness or gross negligence. It requires evidence that reveals a willful and intentional effort on the Crown’s part to abuse or distort its proper role within the criminal justice system. The key to a malicious prosecution action is malice, but the concept of malice in this context includes prosecutorial conduct that is fueled by an “improper purpose”, a purpose that is “inconsistent with the status of ‘minister of justice’”.  (para. 35)

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

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

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

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

3. Recent Lower Court Decisions

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

[308]              In Klein v. Seiferling, 1999 CanLII 12644 (SK Q.B.), [1999] 10 W.W.R. 554 (Sask. Q.B.), my colleague Klebuc J. dealt with a case that involved claims of malicious prosecution and false imprisonment. He reviewed many of the authorities that I have referred to in the case before me. Many of the factual issues he was required to deal with were of a similar nature to those alleged in the case before me. He relied on the comments of Cory J. in R. v. Storrey 1990 CanLII 125 (S.C.C.), (1990), 75 C.R. (3d) 1 at 8-9 (S.C.C.), respecting what constitutes reasonable and probable grounds in connection with an arrest empowered by s. 495 of the Criminal Code. I realize that these comments focus on the right to arrest as opposed to a malicious prosecution action, but they do give some insight into the term “reasonable and probable”: (p. 566)

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

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

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

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

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

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

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

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

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

He also observed at para. 357:

   In addition, a police officer must take into account all the information available. A police officer is only entitled to disregard that which there is good reason to believe is not reliable. (Chartier v. Quebec (Attorney General), 1979 CanLII 17 (S.C.C.), [1979] 2 S.C.R. 474 (S.C.C.); R. v. Golub 1997 CanLII 6316 (ON C.A.), (1997), 34 O.R. (3d) 743 (C.A.), appeal discontinued [1997] S.C.C.A. No. 571 (S.C.C.)).

At para. 368 he states:

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

At para. 376 he states:

   Police are not able simply to pay attention to only that evidence which might serve to incriminate and to disregard that which might serve to exonerate (Chartier v. Attorney General of Quebec, 1979 CanLII 17 (S.C.C.), [1979] 2 S.C.R. 474). . . .

[314]  Ritter J. also determined that certain of the police and prosecutor defendants had malice. He considered the issue of whether an absence of reasonable and probable cause by itself may lead to an inference of malice, as is the conclusion reached in Oniel v. Metropolitan Toronto Police Force 2001 CanLII 24168 (ON C.A.), (2001), 195 D.L.R. (4th) 59 at para. 49 (Ont. C.A.), leave to appeal dismissed without reasons, [2001] S.C.C.A. No. 121, (2001), 158 O.A.C. 199 (S.C.C.). He states at para. 527:

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

[315]              This is the interpretation placed on this aspect of the Dix v. Canada (Attorney General) decision by Paisley J. in Gabadon v. Toronto Police Services Board (2003), 16 C.C.L.T. (3d) 225 (Ont. Sup. Ct. J.). In my view, proceeding with a prosecution in a case where there is no reasonable and probable cause may not of itself constitute malice, but it is certainly evidence from which an inference of malice can be drawn in an appropriate case. See Lacombe et al. v. André et al. 2003 CanLII 47946 (QC C.A.), (2003), 11 C.R. (6th) 92  at para. 86 (Que. C.A.).  There is nothing in Nelles or Proulx to suggest otherwise. Malice can usually be established only by inference from the other facts and circumstances of the case, including the conduct of the prosecutor. Proceeding without reasonable and probable cause is contrary to the law and demands a credible explanation, failing which the inference of malice can be drawn.

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

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

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

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

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

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

[320]  In Wood v. Kennedy 1998 CanLII 14927 (ON S.C.), (1998), 165 D.L.R. (4th) 542 (Ont. Gen. Div.), the court observed at p. 561:

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

[321]  In the recent case of Small v. Newfoundland, reflex, 2003 NLSCTD 90, (2003), 227 Nfld. & P.E.I.R. 1 at para. 103 (S.C.(T.D.)), the court adopted the statement in Clerk & Lindsell on Torts, 18th ed. (London: Sweet & Maxwell, 2000) at para. 16-12:

This first element, initiation of the proceedings, was not discussed by the Supreme Court of Canada in Nelles or Proulx. Whether an informant can be held responsible for initiating a prosecution when police act on information offered was considered by the House of Lords in Martin v. Watson, [1996] A.C. 74. That case established that a person who gives information to the police on the basis of which a decision to prosecute is made by the police will not be liable for malicious prosecution unless:

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

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

(3)    The conduct of the defendant must be shown to be such that he makes it virtually inevitable that a prosecution will result from the complaint. His conduct is of a nature that “…if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant”.
 
The Law Respecting the Tort of Conspiracy
 
[322]              Under the heading “Civil Conspiracy” at para. 11 of her judgment in Stillwater Forest Inc. v. Clearwater Forest Products Ltd. Partnership, 2000 SKQB 110, [2000] S.J. No. 211 (Q.B.), Pritchard J. sets out the elements of the tort of conspiracy:

[11]   At page 265-266 in The Law of Torts in Canada, Vol 2 (Toronto: Carswell, 1990) Fridman summarizes the three distinct situations that can give rise to the tort of conspiracy:

In modern Canada, therefore, conspiracy as a tort comprehends three distinct situations. In the first place there will be an actionable conspiracy if two or more persons agree and combine to act unlawfully with the predominating purpose of injuring the plaintiff. Second, there will be an actionable conspiracy if the defendants combine to act lawfully with the predominating purpose of injuring the plaintiff. Third, an actionable conspiracy will exist if defendants combine to act unlawfully, their conduct is directed towards the plaintiff (or the plaintiff and others), and the likelihood of injury to the plaintiff is known to the defendants or should have been known to them in the circumstances . . .
 
 
The Law Respecting Collateral Causes of Action
 
[323]              The “collateral” causes of action alleged by the plaintiffs consist of s. 24 remedy claims for alleged breaches of their rights under the Charter, for abuse of “power” (public office), for negligence, including negligent investigation, and for conspiracy to injure.

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

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

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

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

Application of the Law to the Facts

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

[329]              I need not comment further on the collateral causes of action respecting these three defendants because the collateral causes of action are subsumed within the malicious prosecution action that the plaintiffs have successfully proven.

[330]              For the reasons set out later in this judgment, I am not satisfied that the plaintiffs have established that they were maliciously prosecuted by Hansen, so none of the collateral causes of action apply to her. The conspiracy to injure alleged by the plaintiffs names Dueck and Bunko-Ruys only. As well, it was not sufficiently plead or pursued at trial.

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

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

1. The Initiation of the Proceedings Element

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

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

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

[336]              The “reassessment” by Bunko-Ruys in reality replaced police officer Schindel as the investigator of [M.R. 1]’s allegation of abuse. It was on the basis of her reassessment of Schindel’s assessment that the child apprehension operation I referred to previously was set in motion and the investigation to gather evidence continued. But Social Services and Bunko-Ruys did not want to risk a repeat performance at the police station. This time they contacted Dueck, not to interview [M.R. 1], [M.R. 2] or [K.R.], but to coordinate the investigation of Bunko-Ruys and Marilyn Thompson which was already underway.
 
[337]              Dueck met informally with the children on June 5, 1990 at Taco Time, but he deliberately avoided interviewing them even though [M.R. 1] told him he had a lot more to tell him about sexual abuse. Rather than taking the “disclosures” of the children at that time, or at least within a reasonable time, which is what would be done in the normal course of events, Dueck deferred interviewing the children for over four months until October 1990. He testified that he deferred his interviews so that Bunko-Ruys could work with the children until she felt they were ready from an emotional perspective to be interviewed by him. But it is evident that the primary object of this whole exercise by Dueck and Bunko-Ruys and likely Social Services was not to rehabilitate the children through therapy. Rather it was to defer the investigation until more “disclosures” could be obtained to provide evidence on which criminal charges could be laid and prosecuted against the perpetrators named in the “disclosures”.

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

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

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

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

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

Zillah is going to be a great help . . . – call me about details – I am feeling better after meeting with her today and yesterday – she requests to view the tapes with me – I need copies for early next week – O.K. –

home later 343-8775

The sun is shinning (sic)

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

[344]              As I outlined previously, the opinion evidence Bunko-Ruys gave as an expert in child care was tendered to demonstrate that the sexually inappropriate conduct of the children between themselves and others was, of itself, a strong indication that they had been sexually abused. What is particularly unfortunate is that the prosecution then focused on calling evidence to establish that the children acted out sexually, a fact that was not in dispute and was only too well known to all the parties at that stage of the proceedings. The subtle inference was that proof that the children had been abused was proof of the abuse allegations of the children and, in turn, proof of the offences charged. Bunko-Ruys carried out all of these functions knowing full well that 16 people had been branded as pedophiles and were facing significant jail terms on the basis of the incredible  “disclosures” of the children that she was supporting at all stages of the investigation and prosecution.
 
[345]              The professional status, experience and expertise attributed to Bunko-Ruys, and her prominence as a primary witness in each of the three criminal proceedings, lent credibility not only to the children’s allegations, but also to Dueck’s investigation, the prosecution conducted by Miazga and Hansen and the court testimony of the children. I am satisfied that but for the involvement of Bunko-Ruys, the plaintiffs would never have been charged and even if charges had been laid, the prosecutors would never have proceeded with the court hearings. I conclude that Bunko-Ruys was instrumental in initiating and maintaining the criminal proceedings against the plaintiffs.

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

[347]              It was evident from the testimony given by the [R.] children at the court proceedings that none were traumatized in the least until they were gently confronted by defence counsel who had the temerity to question their perceptions. [M.R. 1] eventually got his way and was permitted to look at his parents behind the screen. At least one of the other children made the same type of request. It is evident from their comments and the number of requests that they made for breaks, that each of the [R.] children became easily bored with the proceedings
 
[348]              I am satisfied that Bunko-Ruys, as well as Dueck and Miazga, initiated the proceedings against the plaintiffs within the meaning of the case law I have cited.
 
2. The Resolution of the Proceedings in Favor of the Plaintiffs Element

[349]              Although the defendants took no issue with this element on the non-suit application, they did take issue with it in their final arguments at the conclusion of the trial. They maintain that although all the charges were stayed by the Crown against the plaintiffs, they were stayed as part of a plea bargain in which Peter Klassen pled guilty to four counts of sexual assault as outlined previously. The case law cited by the defendants establishes that if multiple criminal charges are resolved against a plaintiff by means of a combination of stays and guilty pleas, the proceedings are not resolved in favor of that plaintiff within the meaning of the second requirement of a malicious prosecution action.

[350]              But counsel for the defendants frankly admit that none of these cases is directly on point and as well, that all pertain to a plea bargain entered into between the Crown and the individual who has pled guilty. Here, none of the plaintiffs pled guilty to anything. It was Peter Klassen, not one of the plaintiffs in this action, who pled guilty to some of the charges brought against him. He was represented by Jay Watson, a lawyer who does not act for and never did act for any of the plaintiffs with the exception of Marie Klassen, the wife of Peter Klassen. Nothing that Jay Watson or Peter Klassen did could commit the other counsel or their clients to any plea bargain involving them without their consent. Likewise nothing Peter Klassen did could bind his wife, Marie, to any plea bargain involving her without her consent. Nor was Peter Klassen’s guilty plea given in exchange for stays by the Crown respecting any of the charges brought against any of the plaintiffs.
 
[351]              The defence counsel involved in the criminal proceedings taken against the defendants were Robert Borden, Daryl Labach and Jay Watson. The latter two testified at the trial before me. From their testimony it is clear that no deal was made between the Crown and the plaintiffs respecting any plea bargain. Each of their clients adamantly maintained his or her innocence from the outset of the proceedings. Each declined to enter into any plea bargain by which he or she would plead guilty to one charge in exchange for stays entered by the Crown of his or her remaining charges. The plaintiffs’ unequivocal instructions to their respective counsel were to proceed to trial.

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

[353]              It appears from the evidence and from the views held by the parties and their counsel, that the only valid sexual abuse complaint against Peter Klassen was that made by C.H. She appeared to be the only complainant who was credible and her complaint pertained to Peter Klassen only. Jay Watson testified that his client Peter Klassen denied assaulting any of the [R.] children but pled guilty to one count respecting each of them just to get it over with. He had a previous unrelated conviction for a similar fondling type of sexual assault as was alleged by C.H. which weighed heavily against him. It may be that part of his motivation for pleading guilty to these three counts and the count respecting C.H. was a desire to induce the Crown to stay the charges against the plaintiffs. But obviously his guilty plea pertained only to assaults alleged against him and him alone. It did not in any way involve any of the assaults alleged against any of the plaintiffs nor could it absolve them from any moral or legal culpability for the assaults alleged against them.
 
[354]              As a final observation on this issue, I am convinced that the Crown stayed the charges against the plaintiffs, not because of Peter Klassen’s guilty plea, but because the Crown was left with no case to pursue against the plaintiffs. The prosecutors and their superiors tried valiantly to obtain a guilty plea from even one of the plaintiffs in exchange for the stays of all the other charges against them. The tentative offer was flatly rejected by all the plaintiffs. Despite a trip by the prosecutors to Regina and a subsequent trip by Miazga to Regina, all efforts to obtain guilty pleas from the plaintiffs failed. Even though this failure made it more difficult for the prosecutors and their superiors to explain to the public and the media why stays were entered on all the charges brought against 10 adult pedophiles, the Crown nevertheless entered the stays. In press releases that were carefully crafted, the traumatization of the children by the proceedings was relied upon as the justification for abandoning the criminal proceedings against all these pedophiles. For these reasons, I reject this submission of the defendants on this issue.

[355]              I am accordingly satisfied that the criminal proceedings have terminated in favour of the plaintiffs within the meaning of the case law I have cited.

3. The Absence of Reasonable and Probable Cause Element

[356]              This element of malicious prosecution involves two sub-elements: a subjective element and an objective element. I previously outlined the evidence I have considered that pertains to the subjective and objective beliefs of the defendants respecting the allegations of the [R.] children. I have also outlined the vast difference between the nature and substance of their allegations and those of the allegations of the other child complainants. I will deal first with my conclusions respecting the subjective considerations that apply to the charges based on the allegations of the [R.] children.
 
[357]              The issue is whether the defendants had an honest belief that the plaintiffs were probably guilty of the crimes they imputed to the plaintiffs. The term “probably” simply means more likely than not. To my recollection, not one of the defendants ever said that he or she had an honest belief in the probable guilt of the plaintiffs. In any event, what would such a statement mean? Would it mean a belief that each plaintiff was guilty of each count charged respecting each complainant? Or would it mean a belief that each plaintiff was guilty of one of the counts charged respecting one of the complainants?  All the defendants however did say that they “believed the children” whatever that may mean in the circumstances of this case.

[358]              All the defendants testified in one forum or another to the effect that the children told them lies and fabricated stories on occasion. All of them said they did not believe everything that the children alleged. Dueck and Miazga said they disbelieved all the ritualistic and satanic abuse allegations of the children. These allegations were a substantial component of the children’s “disclosure” allegations and the evidence they gave in court. None of the defendants has ever clarified just what it is that he or she did believe of the various allegations made by the children. The testimony of each of the defendants that “I believed the children” is meaningless when each defendant has testified that he or she has been lied to by the children and does not believe a substantial number of their allegations.
 
[359]              Neither Dueck or Miazga, with few exceptions, was prepared to say with any degree of certainty what he could remember about his state of mind or beliefs about the children’s allegations at specific times. In some of those instances in which they did give direct evidence as to what they disbelieved about the children’s allegations, I find that evidence to be inconsistent with the circumstantial evidence of those beliefs that can be inferred from the direct evidence of their respective conduct.
 
[360]              In the case of Bunko-Ruys, if her testimony is taken at face value, she did not even address the issue of her belief of the children’s allegations. In her testimony in her examination for discoveries’ read-ins and in the testimony she gave in the criminal court proceedings, she says that it was not her role to make judgments as to whether what the children were “disclosing” was true. Nor was it her role to help the children differentiate between their perceptions and reality. Her role was simply to support the children in expressing their perceptions, whatever they might be. But she too, had to acknowledge that the children routinely lied to her. In order to make that determination she obviously had to make judgments about the truth of their statements.

[361]              Again, I seriously question the credibility of the evidence that Bunko-Ruys gave about the proper role of a therapist in responding to “disclosures” of children that are incredible or inconsistent with reality. She said that she would not question or challenge such “disclosures” and was of the view that she had no obligation even to the child who made the “disclosures” to try and correct the erroneous perception. This flies in the face of the expert opinion evidence given by Dr. Santa Barbara, the psychologist called by the Crown that I referred to previously. It also flies in the face of the expert opinion evidence given by [M.R. 1] Elterman, the psychologist called by the defence. Both of them were of a totally opposite view to that expressed by Bunko-Ruys. This illustrates the difficulty that Bunko-Ruys got herself into when she undertook to expand her role as a therapist to include holding herself out to give expert advice on matters that were outside her expertise and in the exclusive domain of psychiatrists and psychologists.
 
[362]              I am satisfied that none of the defendants believed many of the [R.] children’s allegations. As the case against the plaintiffs was based solely on these allegations, it is difficult for me to accept that any of the defendants honestly believed in the guilt of each of the plaintiffs respecting each of the offences charged against them. The evidence overwhelmingly points to the opposite conclusion. Even if each defendant had testified that he or she believed that each of the plaintiffs was guilty of each of the offences charged, I could not have accepted such evidence as truthful in the face of the unique circumstances of this case and the circumstantial evidence of belief.
 
[363]              I am satisfied by all the evidence on this issue that the defendants did not have an honest belief that the plaintiffs had committed the assaults alleged by the [R.] children nor did they have an honest belief that the plaintiffs were guilty of the offences charged against them. In my view, the subjective belief held by each of the defendants was that the children had been sexually abused and that one or more of the 12 plaintiffs who were charged must have done it. I need not comment on what belief the defendants may have had respecting the [R.], [R.] and White allegations because those individuals have not brought a malicious prosecution action and the evidence that pertains to them is quite different than that which pertains to the plaintiffs.

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

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

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

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

[368]              Not only was there no corroboration or independent support of the allegations made by the [R.] children, the nature of their allegations alone was so unbelievable as to be patently absurd. This is so even if the ritualistic and satanic aspects of their allegations are ignored. If their allegations against the 12 plaintiffs are believed, young couples with their own families to care for were routinely abusing the [R.] children in the same rote manner in different houses practically every time the children visited. The other adults who were present must have been oblivious to all these goings on even though the children lined up at the bedroom door, as if in a theatre lineup, to await their turn with one of the plaintiffs. As an example, [M.R. 2] testified at the Klassen - K. preliminary inquiry that after abusing her in the rote fashion she uses to describe sexual abuse, D1.K. never put his pants back on until he had performed the same rote abuse on one after the other of the eight or more children lined up at the bedroom door.

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

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

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

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

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

[374]              Another piece of exculpatory evidence is the concern expressed to Social Services on September 29, 1988 by D2.K., one of the plaintiffs, respecting the three foster children, S.W.H., aged 6, S.E.H., aged 3, and S.L.H., aged 2, that had been placed in her home. She was concerned because of the sexualized behaviour exhibited by the boy, the foul smell of the genitals of the two girls and their aversion to having their “bottoms wiped”. She took the children to Dr. Anne McKenna for a physical examination for potential sexual abuse.

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

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

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

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

4. The Presence of Malice Element

[379]              This is likely the most difficult issue raised by the case. I previously reviewed the cases that define and elaborate upon this element. The defendants contend that the plaintiffs must prove they acted dishonestly in order to establish this element of a malicious prosecution cause of action. I reject this contention if the defendants interpret the concept of dishonesty narrowly to exclude all improper or unlawful conduct except serious misconduct such as fabricating evidence or accepting a bribe. The case law I have cited, particularly the recent case law, does not equate the concept of malice with a narrow interpretation of dishonesty. A much broader interpretation is given to the concept of malice as an essential element of a malicious prosecution cause of action.
 
[380]              The comments of Klebuc J. in Klein v. Seiferling, supra, at paras. 67 and 70 are instructive:
 
67   The manner in which the Officers conducted their investigation constitutes more than mere negligence or poor judgment. It was so reckless and devoid of reason and respect for the rights and security of the plaintiffs and the administration of justice that it directly and inferentially was malicious. They withheld vital information from Connelly regarding Weist’s limitations which they knew might have a bearing on his advice and the manner in which the Attorney General would deal with the plaintiffs. They deliberately ignored the quantity and quality of the evidence . . . These factors and those previously noted in my view establish malice of the character contemplated in Nelles, supra. In addition, Seiferling’s and Turcotte’s primary motivation for arresting Klein, Kozar and Moore and seeking a warrant for the arrest of Ransom and their subsequent participation in prosecuting them was so inconsistent with their legal responsibilities and the administration of justice that it alone constitutes malice.

70     . . . the Officers represented Weist to be a person with no material limitations or difficulties and thereby avoided any discussion of whether his information should be questioned. In like manner the inconsistencies and conflicts in the information gleaned from Lawrence and Weist were never fully discussed with Connelly. Thus they knew Connelly’s opinion was not an informed one based on the facts. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[399]              A prosecutor on the other hand is able to meet a crucial witness on several occasions if required. The police force and its files, and additionally in the case of foster children, the resources of Social Services and its files, are a resource available to the prosecutor that is not available to the court. The prosecutor can assess, probe, confirm and reassess the allegations of a complainant, including that of a child complainant. At times other independent information or third party witnesses can be accessed in this respect. The court does not have these resources or opportunities. It must do the best it can with what is put before it. The information gathered through a competent, thorough and objective investigation, is an effective tool in the hands of a prosecutor to obtain a guilty plea. Without it a trial is assured and the risk of a wrongful conviction is increased. It is not an easy task for defence counsel to successfully challenge a fabricated rote allegation of abuse absent a proper investigation by the police and a fair prosecution on behalf of the Crown.
 
[400]              Although the role of a police officer differs considerably from that of a prosecutor, an officer of the law does have prescribed legal responsibilities and obligations. As indicated by the case law I cited previously, a police officer abrogates his or her responsibility and acts contrary to law if he or she simply lays a charge because a complaint has been made. The laying of a charge is not lawful absent an honest belief in probable guilt based on reasonable grounds. Usually these two requirements cannot be met without some form of an investigation. Any investigation requires a rational consideration with an open mind of all relevant circumstances, including those that are exculpatory as well as those that are inculpatory. Many of the observations I have just made about the responsibility of prosecutors to act independently of a complainant, applies to police officers as well.

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

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

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

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

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

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

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

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

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

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

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

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

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

[414]              In a similar way, Miazga was routinely aggressive and diligent in objecting to the cross-examination of the children on what they had previously “disclosed” in their videotaped interviews or to others. Although the defence lawyers were able to cross-examine the children on many significant inconsistencies between their court testimony and their videotaped “disclosures”, Miazga successfully objected at the preliminary inquiries and at the trial to the court viewing the videotaped interviews or to reading the transcripts of them that had been prepared respecting those of the [R.] children.
 
[415]              These objections have special significance to this case because the best evidence the defence had was the videotaped interviews of the children. In my respectful view, no right thinking individual could have viewed those videos without concluding that the children were repeating fabricated allegations and then fabricating other allegations. Yet because of Miazga’s efforts, the courts were denied the benefit of those videotaped interviews in making their assessments of the credibility of the [R.] children and the strength of the Crown’s case.
 

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

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

[418]              Again, one can understand any prosecutor becoming overly zealous in the heat of the moment, but the inescapable inference to be drawn from Miazga’s approach, attitude and conduct throughout the criminal proceedings is that he was going to get committals or convictions no matter how unreliable his witnesses were and that he was not going to let the truth get in the way. He attempted to minimize the significant inconsistencies in the children’s evidence by attributing them to the extreme trauma the children were supposedly experiencing in giving their evidence and being subjected to cross-examination by the defence. At one point he accused Mr. Borden of conduct bordering on the unethical. But to his credit, when prompted by the judge, he quite properly apologized for his comments.
 
[419]              Miazga is generally held in high regard as a competent and principled prosecutor. In fairness to him, I am of the view that he likely bowed to pressure from his superiors, Social Services personnel and workers, Dueck, his child sexual council abuse peers and the prevailing attitude of the day, to accept the child sexual abuse allegations of the [R.] children without question and to vigorously prosecute those that they named as their abusers. He likely got himself into a prosecution that he knew was doomed from the start and did not know how to extricate himself from it. In so doing, he abdicated his legal and professional responsibilities as a prosecutor and was responsible for the malicious prosecution of the plaintiffs that ensued.

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

Comments on Submissions by the Defendants

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

The Credibility Finding by the Trial Judge

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

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

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

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

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

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

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

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

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

The Credibility Comments of the Preliminary Inquiries Judge

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

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

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

[434]              Second, it is highly unusual and questionable for a judge to discuss an ongoing case with a party in the absence of the other parties. Although the judge had completed the preliminary inquiry by committing [R.], [R.] and White for trial, the trial in this court was still pending. One might ask what would have happened had the prosecutors attempted to adduce this evidence at the trial, whether by their own testimony or by calling the judge as a witness. Other oath helping witnesses were allowed to testify.
 
[435]              Third, this same judge appeared to have grave reservations about the credibility of the [R.] children within a short time before he allegedly said the reverse to the prosecutors. In his reasons for committing the plaintiffs for trial after their preliminary inquiry that followed on the heels of the [R.], [R.] and White preliminary inquiry, he has this to say respecting the counts pertaining to the [R.] children:

. . . persuasive arguments were made to me that, in essence, said that I - in my view, said that I shouldn’t believe the testimony. My function as a Provincial Court Judge presiding over a preliminary hearing . . . is not to make a determination of innocence or guilt but merely to decide whether there is before the Court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged jury acting reasonably could convict. It is not my function to weigh the evidence or to test its quality or reliability.
 
[436]              Fourth, at the outset of the Klassen - K. preliminary inquiry, defence counsel jointly applied to have this same judge recuse himself on the basis that he would be required to make similar rulings to those he had made previously in the [R.], [R.] and White preliminary inquiry. He would also be required to hear from essentially the same witnesses that he had heard from before. Miazga successfully opposed the application on the basis that the judge would not be weighing the evidence or determining issues of credibility.

The Instructions of the Superiors of the Prosecutors

[437]              The third event relied upon by the prosecutors is that on more than one occasion, the details of which I related previously, they sought the advice of their superiors and were told that if they still believed in the substance of the complaints, they should proceed with the prosecution. Again this is of no assistance to the prosecutors for three reasons. First, the advice of the superiors to proceed was qualified. I have previously outlined the ambiguity of this qualification. I also previously related the evidence on which I concluded that Miazga did not have an honest belief in the allegations of the children or in the probable guilt of all the plaintiffs on all the charges being prosecuted against them.
 
[438]              Second, there is no evidence that the prosecutors informed their superiors of the full extent of the unreliability of the evidence of the children. Instead they emphasized how tired and traumatized the children had become by lengthy appearances in court. Had their superiors been informed of the sorry state of the case and the significant difficulties with the credibility of the children, it is highly unlikely that they would have instructed the prosecutors to continue despite whatever beliefs they may have had in the substance of the complaints. The sole consideration is not the subjective belief of a prosecutor. I have serious concerns that Miazga contacted his superiors not only to obtain their advice, but as well to attempt to minimize the risk of his exposure to liability if the whole case came crashing down around him as it eventually did.

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

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

The Encouragement of the Preliminary Inquiry Judge to Proceed

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

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

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

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

The Reasons for Dismissing the Action Against Hansen

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

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

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

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

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

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

[451]              Because of partial recantations and inconsistencies in the evidence of three of the children, S.W.H., S.E.H. and S.L.H., Hansen eventually concluded, likely not long before the Klassen - K. preliminary inquiry was to begin on December 2, 1991, that she had lost confidence in them as witnesses and could not offer them to the court. On November 26, 1991, she advised Robert Borden of her intention to stay the charges respecting S.L.H. She did so, along with the charges respecting a second child, S.E.H. on December 2, 1991.
 
[452]              Hansen had several interviews with the third child, S.W.H. on November 1, 8 and 26, 1991. She asked Marilyn Gray, another prosecutor, to sit in on January 2, 1992 for an independent opinion and to take notes respecting his allegation against S.K. and S.K., the two plaintiff “young offenders”. S.W.H. changed his story again and she concluded for this reason and because of Gray’s assessment that S.W.H. was not credible, that he had reached a level of inconsistency beyond which she could not offer him to the court. All remaining charges respecting his allegations were stayed by the Crown shortly before the preliminary inquiry ended. This left her with only two persons charged by only two children.

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

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

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

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

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

[458]              But I am satisfied that unless Miazga’s primary involvement in and responsibility for the prosecution of the “[R.] charges” relieves Hansen of liability to the plaintiffs, she maliciously prosecuted them respecting the “[R.] charges”. Her involvement and conduct respecting these charges satisfies each of the four elements of the malicious cause of action. The second element obviously applies. The third element is satisfied in that even if she did have an honest belief in the guilt of the plaintiffs respecting the “[R.] charges”, which I seriously doubt, there were no reasonable and probable grounds to support that belief. The fourth element is satisfied by the numerous indicators of malice that I outlined previously. But the first element is in doubt, due to Miazga’s primary involvement in and responsibility for the “[R.] charges” .
 
[459]              I am troubled by the fact that Hansen did not, in the strict legal sense of the term, prosecute the plaintiffs for the “[R.] charges”. They were in reality prosecuted by Miazga even though Hansen assisted in some respects and supported Miazga in his prosecution of them. But it does not follow from the simple fact that two prosecutors were involved in the overall prosecution of the plaintiffs, that they both maliciously prosecuted them on all the charges that were the subject of the prosecution. The malicious prosecution cases that I am aware of, do not address the type of case like the one before me where multiple prosecutors by agreement took different roles in the overall prosecution of the case. In many respects, the case involved two separate prosecutions that were conducted in common by different prosecutors. If this is so, the liability of the prosecutors should be considered in this context.

[460]              The evidence satisfies me that even if Hansen had not been involved in the proceedings, the outcome of the prosecution of the “[R.] charges” would have been the same.  Miazga would still be liable to the plaintiffs for the malicious prosecution of those charges but of course Hansen would not. It is more difficult to predict what would have pertained if Miazga had not been involved in the proceedings. Hansen became involved at a later date than Miazga not only in connection with the “[R.] charges” but also in connection with the proceedings themselves. She also had less initial involvement with the [R.] children than Miazga.
 
[461]              If Hansen had been solely responsible for the proceedings, it is difficult to predict whether the outcome would have been the same. She may have lost confidence in the [R.] children and stayed the charges at an earlier stage in the proceedings than did Miazga. In view of her demonstrated tendency to stay charges only as a last resort when the credibility of her child witnesses had become hopelessly impugned, I suspect she would have forged on despite the formidable odds. But this is primarily conjecture on my part. There is no solid evidence to support it as an inference.
 
[462]              Although these considerations may be helpful to determine the unique nature of the prosecution of this case, it is evident that both prosecutors were very involved in it. Although the prosecutors had a common objective to convict the plaintiffs of the charges brought against them, they proceeded along different paths to realize this objective. I have already concluded that Hansen did not maliciously prosecute the plaintiffs respecting the “other charges”. I have concluded as well that Miazga did maliciously prosecute the plaintiffs respecting the “[R.] charges”. These findings were based on the same legal principles but on quite different facts.

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

[464]              From a strict legal perspective, Hansen may have maliciously prosecuted the plaintiffs respecting the “[R.] charges” by assisting Miazga to do so. But from a functional perspective, she neither initiated nor continued these proceedings as a prosecutor in her own right. I am satisfied in the unique circumstances of this case that the plaintiffs have failed to prove the first element of their malicious cause of action against Hansen respecting the “[R.] charges”.
 
[465]              On this narrow ground, I conclude that the plaintiffs have not proven their malicious cause of action against Hansen and it is dismissed against her.

The Reasons for Allowing the Plaintiffs to Call Rebuttal Evidence

The Context of the Application

[466]              At the close of the defendants’ case, the plaintiffs applied for leave to call a rebuttal witness. The witness of her own accord had contacted Robert Borden, one of the counsel for most of the plaintiffs, three days before the defendants closed their case. The witness, Amy Jo Ehman had been a CBC reporter in the spring of 1991 and related to Mr. Borden a conversation she had with Dueck at that time respecting his investigation. The plaintiffs sought to introduce her evidence on the basis that it pertained to malice, a material element in the case. She had heard that Dueck had testified at this civil trial that he did not believe the ritualistic and satanic aspect of the children’s allegations. Her proposed evidence was to the effect that, as a CBC reporter, she had been advised by Dueck in 1991, before the charges were laid, that he did believe this aspect of the case.

[467]              I was somewhat confused as to the nature of the plaintiffs’ application. Robert Borden stated that the application was to call rebuttal evidence, not to reopen the plaintiffs’ case. He said that the proposed evidence was tendered to show that Dueck had malice in that he was in effect telling the public through the media that the case involved ritualistic and satanic abuse when he had no belief in this aspect of the case. Yet he maintained that the plaintiffs were not attempting to bolster their case with the newly discovered evidence but tendered it to contradict Dueck’s evidence as to what he said about the case to others, an issue which he said had not been addressed as part of the plaintiffs’ case. He also maintained that this was a material issue, not a collateral one and that it involved Dueck’s credibility.

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

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

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

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

The Law Pertaining to Rebuttal Evidence and Reopening a Case

[472]              The plaintiffs relied upon R. v. Krause, 1986 CanLII 39 (S.C.C.), [1986] 2 S.C.R. 466. The case sets out many of the principles to be considered by the court in an application of this nature but the ultimate outcome of the case does not assist the plaintiffs. The court overturned the conviction of the accused and directed a new trial on the basis that the trial judge had erred in permitting the Crown to call rebuttal evidence. There are however several more recent appeal court decisions on this issue in the context of criminal cases. There are also a few appeal court and trial court decisions in civil cases that deal with this issue.

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

[474]              A recent case in our Court of Appeal, R. v. Fisher, 2003 SKCA 90, [2003] S.J. No. 597, reviews many of the cases on this issue. The conclusion of the court was that the trial judge did not err in allowing the Crown to adduce rebuttal evidence. Sherstobitoff J.A., writing for a unanimous court states at para. 83:

83 The Supreme Court of Canada in R. v. G. (S.G.), 1997 CanLII 311 (S.C.C.), [1997] 2 S.C.R. 716, defined the difference between allowing the Crown to re-open its case and allowing the Crown to call rebuttal evidence as follows at p. 737:

[39] In particular, the Crown should not be permitted to gain the unfair advantage which will inevitably arise from “splitting its case”. The rule against “splitting the case” developed primarily in the context of applications to adduce rebuttal evidence by the Crown. Applications to adduce rebuttal evidence and to reopen the case are “close cousins”, but not “identical twins”: R. v. F.S.M. 1996 CanLII 4012 (ON C.A.), (1996), 93 O.A.C. 201, at p. 208. Rebuttal evidence is properly admissible where the matter addressed arises out of the defence’s case, where it is not collateral, and generally, where the Crown could not have foreseen its development: R. v. Krause, 1986 CanLII 39 (S.C.C.), [1986] 2 S.C.R. 466, at p. 474; R. v. Aalders, 1993 CanLII 99 (S.C.C.), [1993] 2 S.C.R. 482, at pp. 497-98. With rebuttal evidence, it is the rules of the adversarial process that justify the admission of the reply evidence. In an application to reopen, the Crown is required to establish that the evidence is material to an issue that is properly part of the Crown’s case. In order to succeed, the Crown must also explain why the evidence was not led earlier and must justify this departure from the normal rules of the adversarial process. See F.S.M., supra, at p. 208.

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

[476]              I will refer to some of the recent Supreme Court of Canada decisions in criminal cases that elaborate on the principles to be applied in considering whether rebuttal evidence (which is often referred to as “reply” evidence) should be allowed. In R. v. Chaulk, 1990 CanLII 34 (S.C.C.), [1990] 3 S.C.R. 1303, at paras. 116 to 121, the court upheld the admission of rebuttal evidence respecting insanity. In R. v. Biddle, 1995 CanLII 134 (S.C.C.), [1995] 1 S.C.R. 761 at 778, para. 30, the court held that the admission of rebuttal evidence by the Crown respecting alibi was improper and that the resulting prejudice to the accused could not be cured by granting the accused the right to call surrebuttal evidence. In R. v. Melnichuk, 1997 CanLII 383 (S.C.C.), [1997] 1 S.C.R. 602, a new trial was ordered because the trial judge had permitted the Crown to adduce rebuttal evidence (respecting the granting of a mortgage) in breach of the collateral fact rule.
 

[477]              I have also considered R. v. S.G.G., 1997 CanLII 311 (S.C.C.), [1997] 2 S.C.R. 716, a decision in a criminal case referred to in the quotation from the R. v. Fisher decision cited above. It elaborates on the principles to be applied in considering whether the Crown should be permitted to reopen its case. A new trial was ordered because just before counsel were prepared to address the jury, the trial judge permitted the Crown to reopen its case and call a material witness who could place the accused at the scene of the crime. The court held that the discretion of the trial judge to permit the Crown to reopen its case narrows as the case proceeds. The primary consideration is the potential prejudice to the accused and this usually cannot be cured by allowing the accused to take the stand and testify in response to such evidence.

[478]              R. v. P.(M.B.), 1994 CanLII 125 (S.C.C.), [1994] 1 S.C.R. 555 is to the same effect. In that case the Crown was permitted to reopen its case before the defence called evidence but after stating its intention to call alibi evidence. A Crown witness was recalled to correct her previous evidence respecting the date the accused lived in her house, an issue related to the date of an alleged sexual assault. The decision of the Ontario Court of Appeal quashing the conviction was upheld.

[479]              These criminal cases illustrate that only in exceptional circumstances is the Crown allowed to adduce rebuttal evidence or to reopen its case. The primary consideration is the potential prejudice to the accused. But newly-discovered evidence is one of the factors the trial judge can consider in the exercise of the discretion to permit rebuttal evidence. In R. v. Proctor 1992 CanLII 2763 (MB C.A.), (1992), 69 C.C.C. (3d) 436, the Manitoba Court of Appeal upheld the decision of the trial judge to permit the Crown, after the case for the defence was closed, to adduce the evidence of statements made by the accused to a psychiatric nurse. This evidence was not known to the Crown beforehand. The accused’s defence was insanity. Although a new trial was ordered on other grounds, the court upheld the decision of the trial judge to permit the Crown to adduce the rebuttal evidence. This case was quoted with approval in R. v. Fisher, supra, para. 86.

[480]              There are not many civil cases that elaborate on the principles to be considered by a trial judge when confronted with an application by a plaintiff to adduce rebuttal evidence or to reopen its case. Some cases merely adopt the principles set out in the criminal cases I have referred to. See Allcock, Laight & Westwood Ltd. v. Patten et al., [1967] 1 O.R. 18 (C.A.). In that case the trial judge was found to be in error in admitting rebuttal evidence that was in reality confirmatory only of the plaintiff’s case. But in Sood v. College of Physicians & Surgeons (Saskatchewan), 1995 CanLII 6137 (SK Q.B.), [1996] 2 W.W.R. 668 (Sask. Q.B.), the court held that rebuttal evidence called to counter the testimony of a defence witness that was of the nature of alibi evidence, did not constitute a splitting of the case for the College. It was not a case of the College calling evidence to buttress its case on matters it was required to prove to establish its case.

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

(c) Re-Opening the Case

(i) Civil Cases

While this will normally constitute the totality of the evidence in the case, it is possible for the trial judge, in his or her discretion, to permit a party to “re-open” the case, after it has been closed. In civil cases, an application to re-open may be made after the evidence has been completed but before judgment has been delivered, after judgment has been delivered but before that judgment has been entered and after judgment has been entered. Needless to say, in the first two cases, the discretion of the trial judge is wider than in the last case, and will basically depend upon his or her view of whether the interests of justice demand it—usually because a party has been misled in some way by the other or because of some inadvertence on his or her own part. Most of the Rules permit re-opening in some form or other. . . .
 
[482]              The historical rationale for the rule against splitting one’s case in a civil action is set out in J. Sopinka & S.N. Lederman, The Law of Evidence in Civil Cases, (Toronto: Butterworths, 1974) at 517, as follows:
 
At the close of the defendant’s case, the plaintiff has a right to adduce rebuttal evidence to contradict or qualify new facts or issues raised in defence. As a general rule, however, matters which might properly be considered to form part of the plaintiff’s case in chief are to be excluded. A plaintiff is therefore precluded from dividing his evidence between his case in chief and reply, for two very practical reasons:
 
“. . . first, the possible unfairness of an opponent who has justly supposed that the case in chief was the entire case which he had to meet, and, secondly, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning.”
 

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

The Ruling on the Application

[484]              I concluded in the case before me that although the proposed evidence related to a material element of the plaintiffs’ case that they are required to prove, the evidence was not known to the plaintiffs, nor could it have been known to them through proper diligence, when they closed their case. The admission of the evidence would not contravene the collateral fact rule as the evidence pertained to a substantive issue in the case rather than a subsidiary issue. In any event, even if it did pertain to a collateral fact, it would contradict a previous inconsistent statement made by Dueck respecting his belief about the ritualistic and satanic aspect of the case. As such it would constitute a recognized exception in law to the collateral fact rule and because Dueck is a party to the action, it would be admissible for the truth of its contents under the admission exception to the hearsay rule. See Sopinka, supra, at paras. 16.133-134 and 16.172.
 

[485]              In the circumstances, I concluded that the plaintiffs were entitled to reopen their case to introduce the proposed evidence and were also entitled to the admission of it on the basis of reply evidence. I was of the view that any potential prejudice to Dueck could be addressed by affording him the opportunity, accompanied by an order for costs, to give surrebuttal evidence himself or to call such evidence from the prosecutors or from any other witness with relevant evidence respecting the issue at hand. Dueck alleged no prejudice other than the loss of the opportunity to examine the two prosecutors on this issue. His belief on the issue was before the court in the read-ins from his examinations for discovery. He confirmed this evidence by his testimony at trial. It is unlikely that he would have conducted his defence or given his evidence differently even if he had been aware of the newly discovered evidence.

[486]              I also considered the respective appeal consequences of allowing or disallowing the rebuttal evidence. It would not be available to the Court of Appeal if I disallowed it. If I was found on appeal to have erred in disallowing it, the Court of Appeal might well have no option but to order a new trial at tremendous cost and inconvenience to the parties. On the other hand, if I am found on appeal to have erred in allowing it, the Court of Appeal can ignore the rebuttal evidence and can likely render its decision without ordering a new trial.
 
The Disposition of the Case Itself
 
[487]              The parties to this action previously consented to an order of Dovell J. severing the trials of the issues of liability and quantum of damages and deferring the determination of costs until the quantum of damages is determined. I conclude that the defendants, Matthew Miazga, Brian Dueck and Carol Bunko-Ruys, maliciously prosecuted the plaintiffs. They are entitled to have judgment against these defendants in the amount to be subsequently determined. I conclude that Sonja Hansen did not maliciously prosecute the plaintiffs. The plaintiffs’ action against her is dismissed.
 
[488]              The parties reached an agreement that the Estate of Richard Quinney would be neither entitled to costs nor liable for costs respecting the action. I direct that the default costs provisions in The Queen’s Bench Rules shall not apply to the dismissal of the action against the Estate of Richard Quinney or against Sonja Hansen, nor shall they apply to the judgment granted against Matthew Miazga, Brian Dueck and Carol Bunko-Ruys.

The Counterclaim

[489]              Matthew Miazga and Sonja Hansen, two of the defendants in the main action, are the plaintiffs in the counterclaim against Richard Klassen. Richard Klassen is one of the plaintiffs in the main action and the sole defendant in the counterclaim.         The Estate of Richard Quinney abandoned its counterclaim against Richard Klassen by agreement of the parties on the basis that no party would be entitled to costs nor liable for costs respecting the counterclaim. The evidence in the main action, by the agreement of the parties, was applied to the counterclaim. Portions of the examination for discovery of Richard Klassen were read in as evidence.  No oral testimony was adduced by any of the parties because the whole of the evidence adduced in the main action applies to the counterclaim.
 
[490]              Counsel for Miazga and Hansen suggested at trial that the outcome of the counterclaim would likely be governed by the outcome of the main action. If the plaintiffs were successful in the main action, the counterclaim should be dismissed and vice versa. But as there has been mixed success in the main action, I must consider the counterclaim on its merits.
 

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

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

“crooked prosecutors
Sonia Hanson (sic), a crooked prosecutor, used the above manufactured evidence to advance her career.
Matt Miazga, a crooked prosecutor, used the above manufactured evidence to advance his career.”

(b) in a document over the signature “Richard Allen Klassen” distributed widely including by postering in public places in Saskatoon at various times since February 10, 1993 included the following entry:
 
“I, Richard Allen Klassen, demand that Crown Prosecutor Matt Miazga be arrested for covering up the rape and sodomy of an eight year old girl, in order to keep his manufactured case together.
 
I, Richard Allen Klassen, demand that Crown Prosecutor Sonia Hanson (sic), be arrested for covering up the rape and sodomy of an eight year old girl, in order to keep her manufactured case together.

(c)  in a letter dated November 11, 1993 and distributed widely including by postering in public places in Saskatoon at various times since February 10, 1993 included the entry:

“Crown Prosecutor Matt Miazga should be held criminally responsible for aiding and abetting the criminal actions of the aforementioned people.”

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

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

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

 J