Court up­holds rul­ing against pros­e­cu­tor

Regina Leader-Post - - News - By BETTY ANN ADAM Saskatchewan News Net­work

The Saskatchewan Court of Ap­peal has set aside a judg­ment of ma­li­cious pros­e­cu­tion against a child ther­a­pist but has up­held the rul­ing against a Crown pros­e­cu­tor.

Pros­e­cu­tor Matthew Mi­azga and child ther­a­pist Carol Bunko-Ruys were found li­able in 2003 for ma­li­cious pros­e­cu­tion against 12 peo­ple, in­clud­ing Richard Klassen and mem­bers of his ex­tended fam­ily who were wrong­fully ac­cused of sex­ual abuse against three fos­ter chil­dren in the early 1990s.

Queen’s Bench Jus­tice Ge­orge Bayn­ton found Mi­azga, Bunko-Ruys and Saskatoon po­lice of­fi­cer Brian Dueck li­able fol­low­ing a trial that ex­am­ined why charges of sex­ual abuse were laid against the in­di­vid­u­als based on bizarre, un­founded al­le­ga­tions by chil­dren who were ac­tu­ally be­ing abused by their own par­ents.

Dueck did not ap­peal the 2003 judg­ment.

The Court of Ap­peal found that the trial judge made a “pal­pa­ble and over­rid­ing er­ror of fact in de­ter­min­ing that Bunko-Ruys had ini­ti­ated the pros­e­cu­tion.”

Two of three judges on the panel found the trial judge’s rul­ing against Mi­azga was rea­son­able and sup­ported by the ev­i­dence, thereby up­hold­ing the de­ci­sion.

The dis­sent­ing judge would have set aside the judg­ment against Mi­azga. Jus­tice William Van­cise dis­agreed with the ap­pli­ca­tion of the law and the facts, par­tic­u­larly on the find­ing that the ab­sence of rea­son­able and prob­a­ble cause was ev­i­dence of mal­ice.

Mi­azga has not yet de­cided whether he will seek leave to ap­peal to the Supreme Court of Canada, his lawyer Michael To­chor said Wed­nes­day.

“It’s a pe­riod of re­view and re­flec­tion for him right now,” To­chor said.

“The fact that there’s a dis­sent is one fac­tor that is con­sid­ered when any de­ci­sion is taken whether to ap­peal it or not.”

Richard Klassen said he is sat­is­fied that the ap­peal court up­held the rul­ing against Mi­azga and wishes the mat­ter could now be laid to rest.

If Mi­azga ap­peals to the Supreme Court then Klassen will con­sider cross ap­peal­ing the Bunko-Ruys de­ci­sion, he said.

“It is af­fect­ing us be­cause we have to con­stantly re­hash this thing. I think the gov­ern­ment should ac­cept what they have right now and just get on with it. Get it over with.

“We’re not try­ing to claim that all prose­cu­tors are ma­li­cious. They can go ahead and pros­e­cute peo­ple. Just don’t do what they did to us,” he said.

Twelve mem­bers of Klassen’s fam­ily were charged in 1991 with sex­u­ally abus­ing three fos­ter chil­dren.

Al­le­ga­tions in­cluded de­tailed ac- counts of satanic rit­ual abuse, which in­cluded an­i­mal and hu­man sac­ri­fice, as well as claims the chil­dren had been forced to eat fe­ces and drink urine.

By 1993, most of the charges had been stayed, and as the years passed, the chil­dren came for­ward to ad­mit they had made the whole thing up.

Saskatchewan’s jus­tice min­is­ter, Frank Quen­nell, said Wed­nes­day he was pleased with the Court of Ap­peal de­ci­sion on Bunko-Ruys, be­cause it could af­fect pro­fes­sion­als such as teach­ers, so­cial work­ers and nurses who re­port sus­pi­cions of child abuse and child sex­ual abuse.

Quen­nell said he was trou­bled by as­pects of the de­ci­sion re­lat­ing to Mi­azga.

“I have an over­rid­ing con­cern that the ad­min­is­tra­tion of jus­tice, and par­tic­u­larly the pro­tec­tion of the pub­lic and par­tic­u­larly the pro­tec­tion of chil­dren, be strength­ened by the ex­tent pos­si­ble and I’m con­cerned that we not have a chill­ing ef­fect on the de­ci­sions of prose­cu­tors when they’re act­ing to pro­tect the pub­lic,” Quen­nell told re­porters in Regina.

An agree­ment for dam­ages was reached in 2004 and will not be changed by Wed­nes­day’s judg­ment, To­chor said.

Quen­nell said mem­bers of the Klassen and Kvello fam­i­lies have been paid $2.46 mil­lion as a set­tle­ment by the pro­vin­cial gov­ern­ment.

A fur­ther $200,000 will be paid out if the judg­ment against Mi­azga stands.

The gov­ern­ment has also paid the le­gal fees of Mi­azga and Bunko-Ruys but it will not have a say in whether Mi­azga launches an ap­peal, said Quen­nell.

If Mi­azga is granted leave to ap­peal the court’s de­ci­sion to the Supreme Court of Canada, Quen­nell ac­knowl­edged it is likely the gov­ern­ment would con­tinue to sup­port Mi­azga.

Mi­azga con­tin­ues to work as a Crown pros­e­cu­tor and Quen­nell de­scribed him as “a leader” who has “made great con­tri­bu­tions to pub­lic ser­vice.”

Quen­nell said a de­ci­sion on whether Mi­azga will be sub­ject to dis­ci­pline if the court de­ci­sion stands is up to the di­rec­tor of pub­lic prose­cu­tions, not him.

But he be­lieves dis­ci­plin­ing Mi­azga would send “a very chill­ing mes­sage to ev­ery Crown pros­e­cu­tor in the prov­ince that they bet­ter err on the side of not vigourously de­fend­ing the pub­lic in cases like this that might be con­tro­ver­sial.”

While de­fend­ing Mi­azga, Quen­nell said he was very sym­pa­thetic to the Klassen and Kvello fam­ily mem­bers.

“I’m sorry for what they went through and that’s sin­cerely how I feel about that … I think they un­der­stand that this ap­peal was about the law and not them. And I hope that there’s no sense on the part of any of those plain­tiffs to the orig­i­nal case that they re­quire re­venge against Mr. Mi­azga per­son­ally for do­ing his job,”

— With files from James Wood

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