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Contents | Previous page | Next page As this court is to determine whether or not the Defendants were malicious in their pursuit of charges against the plaintiffs, it should look to the beginning which the plaintiffs submit would be the interviews of the children. The plaintiffs believe the question this court must ask is, did the Defendant Brian Dueck and the Defendant Carol Bunko-Ruys know what a leading question was? And if so, why did they feel it necessary to ask leading questions? To look for the answers as to whether the Defendant Brian Dueck new what a leading question was we just have to look at his examination for discovery held by the plaintiff Richard Klassen page 62-63 In where he is asked this very question: Q. So avoiding leading questions would be probably the most important? A. I said you would try to do that. That's not always possible, and that's obvious on the tapes. Q. Are you admitting that there are leading questions on the tapes? A. I would say -- MR. GERRAND: "The tape speaks for itself". A. "Yeah". "The most effective method of eliciting valid information from a child is to allow the child the opportunity to tell if anything has happened and what has happened. Therefore, the discussion with the child, which will include questions, must not provide information to the child or contain any assumptions made by the interviewers". Below is a sample of some of the questions put to the children in the interviews, by the Defendant Brian Dueck and Carol Bunko-Ruys: Michael London Ross Leading Interview: 187. The following examples can be seen
in the statement as to documents of the Plaintiff Richard Klassen,
Book 4, Tab 70. Michelle Mimi Ross Leading Interview: 188. The following examples can be seen in the statement as to documents of the Plaintiff Richard Klassen, Book 4, Tab 71. Page 10 line 10:26:40 interview Page 13 line 10:28:48 interview Page 25 line 10:39:20 interview Page 78 line 11:25:39 interview Page 86 line 11:32:20 interview Page 33 line 10:46:26 interview
Michael Klassen Leading Interview conducted By Gladys Hildebrandt: 189. The following examples can be seen in the interview of Michael Klassen which has been provided. 13:55:52 13:56:48 "Did he do it lots or just once?" "Has somebody ever touched you where they weren't supposed to touch you?"
13:56:56 "were you scared?' 13:57:20 "Did Grandpa show you his
fornt part?" 190. The following examples can be seen in the interview of Shannavia Mayes/Hardy which has been provided.
13:57:41 "Did Grandpa take your pants off?" 11:01:40 "Has anyone ever touched you there that made you feel bad or made you feel uncomfortable?" 11:02:57 "And were you standing up or were you laying down when Diane touched you?" 11:02:18 "Was it in the living room or in the basement or bathroom?" 11:03:06 "Did you have your clothes on or off?" "Who took them off?" 11:03:41 "Who else was in the room?" 11:04:38 "So how many times did Diane touch you like that?" 11:04:51 "And did she use her hand or part of her hand? what did she use?" 11:05:05 "Did anyone else touch you at Dennis and Diane's?" 11:05:14 "Do you remember anyone else doing anything to you there?" 11:06:18 "When Diane touched you did she saw what would happen to you if you told somebody?" 11:06:27 "What did she say about telling?" 11:06:33 "Did anyone else say anything about telling?" 11:06:40 "Did anyone else say anything about what would happen if you told?" 11:07:16 "Did anything else happen at Diane's place?" 11:07:21 "Think real hard! Can you do that?" 11:08:35 "Did Diane have her clothes on or off?" 11:08:54 "Now what did Diane do?" 11:10:08 "Do you remember that something might have happened with somebody else?"
Sardie Hardy/Mayes Leading Interview: 191. The following examples can be seen in the interview of Sardie Mayes/Hardy which has been provided. 11:21:00 "Has anyone ever touched you there that made you feel bad?" 11:21:57 "Did she say something if you would tell, what would happen if you told?" 11:22:25 "How many times did Diane touch you on your pee-pee?" 11:22:25 "Did she use her hand or did she use her finger, or what did she use?" 11:24:12 "Was Diane sitting or standing or lying down?" 11:24:38 "Did she do anything else?" 11:24:42 "How many times did she do that?" 11:25:00 "Did anybody else do something to you in that house?" 11:25:07 "Who did? Corey or Kari? 11:25:55 "Did anybody else at Diane's ever touch you that made you feel bad?" 11:26:00 "Do you remember anything else that happened there that made you feel bad?" 11:26:42 "Do you think that maybe she did it to other kids?" 11:26:44 "Can you think of any other
kids that maybe Diane did that to?" 192. The following examples can be seen in the interview of Stephen Mayes/Hardy which has been provided. 11:39:32 "I need you to tell me about stuff like that, okay?" 11:41:28 "When Diane touched you were you standing up or lying down?" 11:41:41 "Did you have your clothes on or off?" 11:41:45 "How about Diane, did she have her clothes on or off?" 11:41:49 "And what did Diane do to you?" 11:44:27 "Did she do anything else?" 11:44:29 "Did she make you touch her anywhere?" 11:44:49 "Do you remember anything
else that happened with Diane?" 193. The following examples can be seen in the interview of Trevor Heinrichs which has been provided. 16:41:24 "Did you stay in the bedroom by your self or was someone else in there?" 16:41:50 "Did Grandpa ever do anything else to you?" 16:43:04 "To make sure that those big people don't do that to other kids?" 16:43:13 "We know that the kids told us the truth so it doesn't matter if they lie!" (The accused) 16:43:20 "What if they told me that they weren't touching? I wouldn't believe them because the kids told me that they were touching!" 16:43:27 "And I believe kids when they tell me that people touched them. Did somebody touch you?"
16:43:38 "Which people might say that they weren't touching?" 16:43:49 "So do you think that big people should get into trouble for touching kids?" 16:43:54 "Cause I don't think that it is right that" 16:44:03 "So in who's house did the touching happen?" 16:44:12 "In which room did it happen in?" 16:44:20 "Where did they touch you?" 16:45:26 "Did somebody touch Jackie?" 16:45:33 "Who touched Jackie?" 16:46:45 "Who was all in the room when it happened?" 16:47:01 "Who was the person that did this thing that is so embarrassing for you to talk about?" Crystal Heinrichs Leading Interview: 194. The following examples can be seen in the interview of Crystal Heinrichs which has been provided.
10:46:49 "Has anybody ever touched you that made you feel bad or uncomfortable?" 10:47:25 "Was it at Pam's house?" The subjective element A subjective belief in reasonable and probable grounds is a necessary, but not a sufficient condition for proof of reasonable and probable cause. Intuition cannot be equated with reasonable and probable cause, since there is no factual basis upon which a court can assess that intuition. (R. v. Guse (1983), 37 C.R. (3d) 339 (Ont. Co. Court) at p. 344 quoted with approval in R. v. Porquez (1991), 114 A.R. 1 (C.A.), at para. 17; Dix v. Canada(A.G.)
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; Campbell v. Edmonton (City Police Services) (1985), 66 A.R. 222 (C.A.)). 5. 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. (Cartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474; R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.), appeal discontinued [1997] S.C.C.A. No. 571). This point by the Supreme Court of Canada is highly relevant, indeed critical, to the approach taken by the police and prosecutors in their assessment of the evidence available to them when determining if reasonable and probable cause existed for arresting and prosecuting the Plaintiffs. 195. It became evident to me early on in this trial that, for whatever reason, the police and prosecutors chose to accept inculpatory evidence and to reject exculpatory evidence. They did this not only with stunning consistency throughout the investigation, but also with great boldness even when faced time and again with building evidence which, very early on was whispering "reasonable doubt" and which, by the time of the arrest and prosecution, was fairly shouting "probably not guilty". In the case at bar the Defendants inexplicably disregarded the evidence of other children that it was Michael -and not any of the Plaintiffs- that had assaulted them. They disregarded the evidence of the older child, Crystal Heinrichs. It would be advanced by the same Defendants in subsequent legal proceedings that she was a very credible witness. The objective element In Proulx v. Quebec (Attorney General), supra, Iacobucci J. and Binnie J. speak for the majority about what is required on the part of a prosecutor to meet the objective element of reasonable and probable cause (at para. 31): To say that a Prosecutor must be convinced beyond a reasonable doubt of an accused person's guilt before bringing charges is obviously incorrect. That is the ultimate question for the trier of fact, and not the Prosecutor, to decide. However, in our opinion, the Crown must have sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt before reasonable and probable cause exists, and criminal proceedings can be initiated. A lower threshold for initiating prosecutions would be incompatible with the Prosecutor's role as a public officer charged with ensuring justice is respected and pursued. The Plaintiffs accept that as it relates to the issue of reasonable and probable cause, there is room for differences of opinion even as regards the objective element. The Court should be reticent to substitute its opinion for that of the defendants. But as the Court is required to assess on an objective basis whether reasonable and probable cause existed, and as this is a question of law, the Court must determine if the defendants were correct, under the test, in their determination of whether reasonable and probable cause existed. As stated by Klebuc J. in Klein v. Seiferling, [1999] 10 W.W.R. 554 (Sask. Q.B.) (at para. 59) the objective test: ... is whether the circumstances, assuming
them to be true, would reasonably lead an ordinary prudent and
cautious person placed in the position of the accuser, to the
conclusion that the person charged was probably guilty of the
crime imputed. The Plaintiffs accept that it is not the function of the police to decide guilt or innocence. In the circumstances of this case, however, there was everything inherently or apparently improbable or unbelievable about the story given by the Ross children. The police and prosecutors turned a blind eye to facts or information that would have disproved the Ross' story or established the Plaintiffs' innocence. Additionally, further facts or information emerged during the course of the prosecution that should have alerted the Defendants to the possibility that the prosecution was ill-founded. Michael's allegations against the Plaintiffs were baseless and were designed to divert attention from his own misconduct. MALICE In Proulx v. Quebec (Attorney General) HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=2001457478&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (2001), 206 D.L.R. (4th) 1 (S.C.C.) (at para. 35) Justices Iacobucci and Binnie wrote that a "suit for malicious prosecution must be based on more than recklessness or gross negligence. Fromer Chief Justice Lamer described
malice for all intents and purposes as the equivalent of "improper
purpose". It has a wider meaning than spite, ill will or
a spirit of vengeance. (Nelles v. Ontario, supra,
at page 639). In relation to the burden of proof for establishing malice, the following comments of Shaughnessy J. in Cellini v. Ontario (Attorney General) HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=2000539684&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" , [2000] O.J. No. 180 (at para. 26) are relevant: The requirement of malice in a malicious prosecution proceeding is an independent question of fact, and the burden of proving malice lies on the plaintiff. The burden may be discharged by showing either what the actual motive was, and that it was improper, or the circumstances were such that the prosecution can only be accounted for by imputing some wrong and indirect motive to the defendant. (Whitehouse v. Reimer HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1979097467&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (1979), 107 D.L.R. (3d) 283). NEGLIGENT INVESTIGATION In Beckstead v. Ottawa HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1997418902&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (1997), 37 O.R. (3d) 62 (C.A.) the Ontario Court of Appeal upheld the trial decision of Binks J. (reported at 37 O.R. (3d) 64 (G.D.)) who decided that the immunity granted to Crown attorneys in respect of claims of negligence should not be extended to police officers. In his trial decision, Binks J. wrote at p. 68: "I find that [the officer] was negligent in the manner in which he investigated the complaint. The police officer owed a duty to [the plaintiff] to perfrom a careful investigation of the complaint before charging her, was negligent in the perfromance of that duty, and therefore her claim must succeed for such negligence." The Court of Appeal, unanimously upholding the finding of negligence, also noted that the officer acted with "indifference to the consequences of laying the charge and fell short of even the rudimentary steps which might have been taken to establish [reasonable and probable grounds]". In his article, Justice Archibald observed, "The tort of negligent investigation is similar to the tort of malicious prosecution, but does not require proof of malice." (Archibald, supra, at p. 16). Thus, upon satisfaction of the first three elements of the malicious prosecution analysis (the first two of which are not an issue in the present case) an action in negligence would be made out. From an objective and subjective perspective, Brian Dueck did not have reasonable and probable grounds to act as he did, and he was negligent. This Defendant did not take into account all facts and information that reasonably should have been considered when deciding to act as he did. Binks J. in Beckstead, supra, at p. 67,states that "it is not necessary for the investigating officer to try to prove the innocence of suspect". Nor is it the function of the investigating officers to decide the guilt or innocence of the accused person; that is the function of the court. The tort of negligent investigation that formed the basis of the claim in Beckstead was based upon a duty of care said to be owed by an investigating officer to a potential accused person. Binks J. held that a police officer owes a duty to a potential accused person to perform a careful investigation of a complaint before a charge is laid; failure to perform that investigation to the requisite standard can give rise to liability in negligence where, as a result of that failure, harm is caused to the plaintiff. For the tort of negligence to be made out, the act of the defendant must be the proximate cause of the loss or damage suffered by the plaintiff: see Linden, Canadian Tort Law, 6th ed. (Markham: Butterworths, 1997) at p. 98. Mr. Lloyd's claim does not pass this test. Red Flags: 214. The children residing in the foster homes of Dale and Anita Klassen and Pamela Klassen were interviewed in 1989 and there were no disclosures of any abuse by any of the Klassen's/Kvello's 215. When the children were apprehended from the Klassen foster homes, Dale and Anita's children were examined and interviewed and there were no finding of any type of abuse by Dale and Anita Klassen. 216. The biological children of Dale and Anita Klassen were not apprehended by the department of social services. 217. At the time that the accused were arrested and charged, all the natural children were apprehended by the department of social services, interviewed and physically examined. None of the plaintiff's children showed any signs of any type of abuse, and were returned to their parents, with the exception of Michael Klassen, the adopted son of Pamela Klassen. 218. Prior to Michael leaving the home of Dale and Anita Klassen, Anita reported every instance of abuse that occurred between Michael and his sisters and voiced concern for the safety of her own children as well. 219. It was testified too by the defendant Carol Bunko-Ruys, the children's therapist that children when abused, only disclose when they feel they are in a safe environment, and to people that they feel safe with. Why, if the abuse was happening to Kathy, Michelle and Michael at the Klassen foster home, would Kathy and Michelle have felt safe disclosing some of the abuse that Michael was inflicting upon them to Anita Klassen, one of the alleged abusers? 220. Once Michael Ross was removed from Dale and Anita's home, there are no further reports to the department of social services or family doctors in relation to medical concerns of Michelle or Kathy Ross. I.e. blood in panties, knife inserted into Kathy's vagina. 221. The medical reports from Dr. Yelland read that there was some evidence of penetration in relation to Michelle and Kathy and that the findings were consistent with that of sexual abuse. THERE WAS EVIDENCE PRODUCED BY THE PLAINTIFF ANITA KLASSEN AS WELL AS THE TWO ROSS GIRLS THAT MICHAEL HAD BEEN ABUSING HIS SISTERS WHILE LIVING IN HER HOME 222. Throughout the Marilyn Thompson notes it was documented that Michael was sexually attacking his sisters, especially Kathy. 223. Ron Schindle conducted an interview of Michael Ross, prior to the girls being removed from the Klassen home. He concluded that Michael was too confused to be believed and he was portraying a past abuse on the Klassen family. A lie detector test was to be ordered for Peter Klassen Sr. if he failed charges would be laid against him alone, if he past the file would be closed. (THIS RECOMMENDATION FROM THIS POLICE OFFICER WAS DISREGARDED BY DUECK.) 224. Dueck neglected to interview or investigate the many people that the children named as abusers. Instead he singled out the Klassen and Kvello families, disregarding the many other allegations the children were making against many other individuals named as having abused them. (Some of which were family members of the Ross's and some of which were further family members of the Klassen's and the Ross children's babysitter at the time that the children resided at the Klassen foster home. The disclosure on some of these named was much more extensive than that of some of the charged. 225. After receiving notes from Marilyn Thompson, and obtaining disclosure from the children which could clearly be seen to have come from the disclosures that the children made to the Thompson foster mother, Dueck neglects to give these to the prosecutor when he drops off the file for review. 226. Abuse experts were being sought that could explain away the children's bizarre and unbelievable disclosure of ritualistic abuse. 227. Anita Klassen was asked to testify against the natural father of the Ross children to give credible testimony as to the abuse that the children may have suffered by him. Anita's testimony was held to be credible and played a large part in having the natural father, Donald Ross, convicted of sexually assaulting the three Ross children. However it should be noted that at the time that Anita Klassen was asked to testify, and did indeed testify at that trial, she was already charged with having committed sexual assaults against the very same three Ross children. This should have been a "Red Flag" to the defendant Richard Quinney. If One was to hold Anita up to be credible and give credible evidence to the court in relation to the natural father of the Ross children, than how was one to say that she should now be held as incredible when stating that she herself, being charged with the very same Ross children, was innocent of the crimes alleged. The defendant Matthew Miazga was aware of this dilemma, and requested the assistance of the defendant Richard Quinney. See Book 2, Tab 34, Miazga, Hansen, Quinney documents # 343 (45-46). 228. There was no corroboration as to the identity of the alleged abusers. Richard Klassen is described in the videotaped interview of Michael as "Little Rick" and later Michael describes him as looking like his dad. The defendants Dueck and Bunko-Ruys never verify which "Dad" he is referring too. Is it his father Donald Ross, who was 60 years old? or was he referring to Lyle Thompson, the foster father, who was 41, balding, short and stocky? The plaintiff Richard Klassen was 28 years old at the time; he weighed 135 pounds, 5' 6" tall, and had a full head of light brown hair. Neither the age nor physical appearance of either Donald Ross or Lyle Thompson would remotely resemble the age and/or appearance of the plaintiff Richard Klassen. See Book 2, Tab 25, page 6 this should have been a "Red Flag" for the prosecutors assigned to this file, the defendants Matthew Miazga and Sonja Hansen as well as the Director of Prosecutions, the defendant Richard Quinney. 229. The plaintiff Kari Klassen was never identified prior to the preliminary hearing of the Klassen/Kvello's. One should note that Kari Klassen was pregnant with and gave birth to her second child through out this time. This was never mentioned by any of the children. One would think that this would have been a definite observation of the Ross children as they claim that they as well as the plaintiff Kari were naked at the time that the alleged sexual abuse took place. 230. The children were never asked what the alleged abusers looked like. What their approximate ages were, or what their physical appearances were. The children were never asked in their interviews if they remember seeing any distinguishing marks on the alleged perpetrators. 231. The three Ross children named six men and six women. The defendants should have known that it is more unlikely that women are involved in sexual abuse of children, especially considering the number of accused involved in these allegations. Statistics show that women are more likely not to have committed a sexual abuse then that of men. However in this case the children were claiming that there were an equal amount of women as men. The other factor is that it would have been a far stretch in reality to think that the Klassen men had taught all these women to have had the same sexual preferences as they were supposed to have had. The Defendants surely can not claim that this was feasible. The fact that all the Klassen members were to have been involved in these acts, including all married partners to the Klassen children, should have raised a serious doubt in the minds of those investigating and prosecuting this case. 232. The Ross children named almost every adult that they had come into contact with during their lives. See Book 2, Tab 52. Miazga, Hansen, Quinney document # 416 (7-9). 233. The children's bizarre allegations. i.e. the drinking of human blood, the killing of human babies, etc. Book 1, Tab 5, Document # 475 to the defendant Dueck. Also see examination for discovery of Sonja Hanson pages 27-37 October 7th, 10th, 2002 by Richard Klassen 234. All three Ross children were disturbed prior to coming to the Klassen residence. See Book 2, Tab 27, Miazga, Hansen, Quinney document # 52-3. 235. All three of the Ross children were extremely suggestible, and easily led. Please view supplied videotapes of the children. Also see page 386 the examination of the Defendant Miazga by Robert Borden dated January 7th, 2003. 236. Michael had a severe propensity to lie. See page 426 of the examination for discovery of the Defendant Miazga dated January 7th, 2003. 237. Michael had been known to sexually act out as far back as 1986. See Book 2, Tab 27. 238. Michael seems to be the main complainant that the Defendants had to rely on. 239. Kathy denies abuse by certain Plaintiffs even though her brother Michael stated that he witnessed these Plaintiffs sexually assault Kathy. 240. Michael named many adults who he claimed abused him, teachers etcThe Defendant Matthew Miazga decided not to discuss this with Michael because these other accused were not subject to charges. See page 318 examination for discovery of the Defendant Miazga by Borden dated January 7th, 2003. 241. The defendant Dueck states that Michael was removed from the Dale and Anita Klassen foster home in December 1989, and shortly there after began disclosing abuse by the Klassen's and their extended family as well as his natural parents. The notes from the Defendant Dueck and the testimony of Marilyn Thompson at the trial of the natural parents indicate that the disclosures began within a couple of weeks of Michaels move to the Thompson home. One must question the length of time it took the Department of Social Services and the defendant Dueck to act on these most serious allegations, to ensure the safety of not only Michelle and Kathleen Ross, but the other children residing in the Klassen homes as well. According to their stated belief in these allegations made by Michael Ross, one would think they would have immediately apprehended the remaining Ross children as well as the natural children of all the Klassen members, as these allegations stretched far beyond that of just the Dale and Anita Klassen home.
The Evidence A Proper Investigation Would Have Shown: 242. A proper investigation conducted by the defendant Dueck would have shown that the plaintiffs Dale and Anita reported any and all abuse that Michael London Ross was inflicting upon his sisters. Book 3, Tab 62. 243. A proper investigation would have shown that Anita Klassen was voicing concerns about Michael's behavior and the safety of his sisters, as well as her own children and others in the community. 244. A proper investigation would have shown that different incidences had been investigated by the Department of Social Services as well as the Police Department, and the findings were that Michael was the abuser, and would continue to victimize his sisters. See Book 4, Tab 66, the Plaintiff Richard Klassen's statement as to documents # 84. 245. A proper investigation would have shown that at the time that Michael as alleging abuse against Kari Klassen, she would have had available contact with him for only one year out of the period of time that Michael indicates as they were living in a different location of the city prior to that, and did not have contact with any of the family. Throughout the one year period, Kari was pregnant with her second child and gave birth to that child within that time, shortly thereafter moving to Red Deer with her husband and children. Michael fails to mention this in his disclosure, and it is well known from the Thompson notes that Michael is very keen and aware of what occurs when a child is born. See Book 2, Tab 49, Miazga, Hansen, Quinney document # 357-6. 246. A proper investigation would have shown that had Dueck talked to the neighbors of the accused, there would have been nothing to corroborate the allegations that the children were making. 247. A proper investigation would have shown that Marie Klassen was physically unable to have committed the acts alleged by the three Ross children. She was partially paralyzed and declared clinically blind. She was reduced to a wheelchair, and or a walker to remain somewhat mobile. She could not get in or out of a bath tub and therefore had to take sit baths and later would need the accommodations of a lift to have a bath. 248. A proper investigation would have shown that had the defendant Dueck obtained a search warrant for the homes of the Klassen and Kvello accused, the children's descriptions of the locations of the alleged abuse would have proven to be inaccurate. I.e. Behind the washing machine in Dale and Anita's home. The Chalk Room (size), Pam Klassen's bedroom being the same as her foster children, Marie Klassen's bedroom being located on the second floor of her home, etc. 249. A proper investigation could have shown the accuracy or inaccuracy of the children's descriptions of the homes and rooms in which the apparent abuse occurred. 250. A proper investigation would have shown the long history of foster care provided by the Klassen family, and this file would reflect the quality of care given to the foster children through out the years. 251. A proper investigation would have shown that the children's disclosure when cross referenced from one source to another was completely conflicting and un-corroborated. 252. A proper investigation would have shown that the plaintiffs Richard and Kari Klassen lived only six blocks from the foster parents Dale and Anita Klassen. Michael states that they live in an apartment like and near Laurrier Village. Michelle states that they live near Carolyn Robins School. Dueck's investigation would have shown that they lived miles away from either one of the children's conflicting disclosure. 253. THE TORT OF FALSE IMPRISONMENT In Frazier v. Purdy HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1991360690&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (1991), 6 O.R. (3d) 429 (Gen. Div.) Boland J. stated the law with respect to false arrest as follows (at 435): This tort is a branch of the trespass action and no actual loss is required to establish a claim for damages. The plaintiffs must only prove that they were arrested or detained and that the arrest or detention was caused by the defendants. Once the plaintiffs prove the arrest occurred the onus shifts to the defendants to justify their actions. The Supreme Court of Canada in R. v. Whitfield HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1969019487&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" , [1970] S.C.R. 46, restated the long-standing rule that no one can lawfully detain another person without lawfully arresting him first. Once an arrest has been made, it constitutes an imprisonment and must be justifiable. If the arrest was lawful, there was no false imprisonment. In false imprisonment the plaintiff need only prove the fact of his detention by the defendant; the onus then shifts to the defendant to prove justification. In the same text, the following statement appears at p. 7-11: Like false imprisonment, false arrest is a form of trespass against the person. However, the nature of the trespass in false arrest is the act of wrongfully placing the plaintiff under arrest rather than a wrongful and total deprivation of the plaintiff's liberty. An arrest by which a person's liberty is totally restrained and is not legally justifiable is also a false imprisonment. Lawful arrest is a defence to an action for false imprisonment. The question whether any of the Plaintiffs was falsely arrested or falsely imprisoned turns on whether each arrest was or was not lawful. In this respect, the onus is on the defence to satisfy the Court on a balance of probabilities that the arrest was lawful. The authority of the police to arrest an alleged offender in these circumstances is contained in s. 495 of the Criminal Code. The predecessor to section 495(1), then known as section 450(1), was considered by the Supreme Court of Canada in R. v. Storrey HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1990320007&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" , [1990] 1 S.C.R. 241. In that case, the Court was concerned with whether there were reasonable and probable grounds for arresting the appellant accused. Cory J. discussed what was necessary in order for a police officer to exercise the power of arrest contained in what was then s. 450(1) (now s. 495(1)) of the Criminal Code, at pp. 249 - 251: Section 450(1) [now section 495(1)] makes it clear that the police were required to have reasonable and probable grounds that the appellant had committed the offence of aggravated assault before they could arrest him. Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. 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. In the case of an arrest made without a warrant, it is even more important for the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected from crime. Thus the police need not establish more than reasonable and probable grounds for an arrest. The vital importance of the requirement that the police have reasonable and probable grounds for making an arrest and the need to limit its scope was well expressed in Dumbell v. Roberts HYPERLINK "http://web2.westlaw.com/Find/Default.wl?SerialNum=1944028465&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" , [1944] 1 All E.R. 326 (C.A.), wherein Scott L.J. stated at p. 329: The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanors, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably. 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. See R. v. Brown HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1987292240&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (1987), 33 C.C.C. (3d) 54 (N.S.C.A.), at p. 66; Liversidge v. Anderson HYPERLINK "http://web2.westlaw.com/Find/Default.wl?SerialNum=1941033854&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" , [1942] A.C. 206 (H.L.), at p. 228.
In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. A further statement made by Scott LJ. in Dumbell v. Roberts HYPERLINK "http://web2.westlaw.com/Find/Default.wl?SerialNum=1944028465&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" , [1944] 1 All E.R. 326, immediately following the portion quoted by Cory J. in R. v. Storrey, is also relevant to the present case (at 329):The duty of the police when they arrest without warrant is, no doubt, to be quick to see the possibility of crime, but equally they ought to be anxious to avoid mistaking the innocent for the guilty. The British principle of personal freedom, that every man should be presumed innocent until he is proved guilty applies also to the police function of arrest in a very modified degree, it is true, but at least to the extent of requiring them to be observant, receptive and open-minded and to notice any relevant circumstance which points either way, either to innocence or to guilt. They may have to act on the spur of the moment and have no time to reflect and be bound, therefore, to arrest to prevent escape; but where there is no danger of the person who has ex hypothesi aroused their suspicion, that he probably is an "offender" attempting to escape, they should make all presently practicable inquiries from persons present or immediately accessible who are likely to be able to answer their inquiries forthwith. I am not suggesting a duty on the police to try to prove innocence; that is not their function; but they should act on the assumption that their prima facie suspicion may be ill-founded. That duty attaches particularly where slight delay does not matter because there is no probability, in the circumstances of the arrest or intended arrest, of the suspected person running away. The duty attaches, I think, simply because of the double-sided interest of the public in the liberty of the individual as well as in the detection of crime. More recently, in R. v. Hall HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1995394702&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (1995), 22 O.R. (3d) 289, the Ontario Court of Appeal stated the test for a lawful arrest under s. 495 of the Criminal Code as follows (at 298): Section 495(1) of the Criminal Code provides that in the case of an arrest without warrant the arresting peace officer must have reasonable and probable grounds to believe that the suspect has committed or is about to commit an indictable offence. Both "articulable" cause and "reasonable and probable grounds", as related to an investigative detention and an arrest without warrant respectively, are subject to an objective assessment. That is to say there must be a constellation of objectively discernible facts amounting to articulable cause for a lawful investigative detention and a constellation of objectively discernible facts amounting to reasonable and probable grounds for a lawful arrest without warrant. I note that, subsequent to the Supreme Court of Canada decision in R. v. Storrey, Parliament amended what is now s. 495(1) of the Criminal Code. The section fromerly empowered a peace officer to arrest a person who the officer "on reasonable and probable grounds" believed had committed an indictable offence. The amendment by Parliament deleted the words "and probable" so that the section now permits an arrest where the peace officer believes "on reasonable grounds" that the person has committed an indictable offence. In Baron v. Canada HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1993385848&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" , [1993] 1 S.C.R. 416, the Supreme Court of Canada held that there is no analytical difference between the two concepts: see paras 42 - 44. In R. v. Hall, supra, the Court of Appeal was concerned with the amended provision, that is, subsequent to the deletion of the words "and probable". The Court nevertheless proceeded to apply the principles articulated in R. v. Storrey. It would thus appear that the alteration in the language of the section has not altered the test for a lawful arrest. Deprivation of liberty is a very serious matter. Nevertheless, Mr. Lloyd's time in custody was relatively brief. In comparable cases where plaintiffs have been detained or imprisoned for short periods of time (up to about 6 hours), the damages have been assessed in the range of $250 (in 1914 dollars) (see Tomblyn v. Westcott HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1914044541&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (1914), 20 D.L.R. 131 (A.S.C.)) up to $2,000 (see Roberts v. Buster's Auto Towing Service Ltd. HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1976149917&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" , [1977] 4 W.W.R. 428, 70 D.L.R. (3d) 716 (B.C.S.C.) where the plaintiff spent six hours in jail, was strip searched and worried about his four-year old daughter who was in his care when he was arrested.) See also Kavanagh v. Canadian Tire Corp. HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1989322117&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (1989), 74 Nfld. & P.E.I.R. 205 (Nfld. T.D.); Maher v. K, Mart Canada Ltd. HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1990313741&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (1990), 84 Nfld. & P.E.I.R. 271 (Nfld. T.D.); Evans (Litigation Guardian of) v. Latulippe HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1990318005&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" (1990), 38 O.A.C. 295 (Div. Ct.); Collins v. Saint John (City) Police Department, [2000] N.B.J. No. 32 (N.B.Q.B.); Otto v. J. Grant Wallace Ltd. HYPERLINK "http://web2.westlaw.com/Find/Default.wl?DB=6407&SerialNum=1988183436&FindType=Y&AP=&RS=WLW2.84&VR=2.0&SV=Split&MT=LawPro&FN=_top" \t "_top" , [1988] 2 W.W.R. 728 (Q.B.) for other cases assessing damages for false imprisonment within this range. The Tort of Breach of Charter Rights Section 7 of the Charter guarantees to everyone the "right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". It is trite that the arrest and imprisonment of an individual results in a deprivation of liberty. When that arrest and imprisonment arises other than in accordance with the principles of fundamental of justice, a violation of s. 7 of the Charter is established. The defendant's counsel has stated on numerous occasions throughout the examinations of their clients that the documents mainly speak for themselves and that what we read is what happened. The plaintiffs submit that in most cases they are right, for example: The Criminal Prosecution of the Plaintiffs
Dale and Anita Klassen: 277. The Defendant Dueck did not investigate the background history of the Plaintiffs Dale and Anita Klassen. There was plenty of evidence within the department of Social Services files that would have shown that the Plaintiffs Dale and Anita were more than likely innocent of the alleged allegations. The Defendant Dueck did not go looking for any information other than that of the children's disclosure itself, or in the alternative he ignored such evidence that was made available to him. There was evidence in the Thompson notes as well that would have helped the Defendant Dueck determine that the children's allegations were inconsistent with what they were telling him on the videotaped interviews. The Defendants have all tried to avoid the fact that they received these notes and are now trying to disown them. 278. The Defendant Dueck also had evidence
within his own Department that could have been helpful in determining
that there was no reasonable and probable cause in charging the
Plaintiffs Dale and Anita Klassen. One of his own co-Police officers
who had interviewed the child Michael stated that there was no
evidence that charges could be laid. Cpl. Ron Shindle had completed
a report which was summarized in a report by Carol Middleton,
dated June 4th, 1990. Dueck statement as to document # 478, Book
1, Tab 6. In this report it would seem that an interview had
taken place on May 25th, 1990. In this interview Michael disclosed
on "parents, uncle's, aunts etc". Cpl Shindle felt
that "Michael was too confused to be believed and may
be projecting a past abuse on the Klassen family". Cpl.
Shindle also states that "the only person that he was
inclined to believe as an abuser was Peter Klassen sr."
Cpl. Shindle's planned approach was to "call Peter Klassen
and ask him to take a polygraph. If he passed, the matter would
be dropped, and if he failed the polygraph, then a charge would
be laid." It should be noted that the Defendant Dueck
never called the accused Peter Klassen Sr. to ask if he would
be willing to take a polygraph.
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