Ruling in 'satanist' case gives prosecutors more leeway

The Vancouver Sun/November 6, 2009

By Janice Tibbetts

Ottawa - The Supreme Court of Canada cleared a Crown lawyer on Friday of maliciously prosecuting two Saskatchewan families after their foster children said they were sexually abused and endured bizarre satanic ritual abuse in a scandal that rattled the province in the early 1990s.

The unanimous decision rules that it cannot be open season on prosecutors who are tasked with defending public safety, and establishes that there must be clear evidence of malice and abuse of power for a lawsuit to succeed, not just incompetence or recklessness.

"It clearly articulates a threshold that is quite high," said Paul Cavalluzzo of the Canadian Association of Crown Counsel.

The Supreme Court overruled two Saskatchewan courts by concluding that there was no reason to believe prosecutor Matthew Miazga acted out of malice when he wrongly pursued the case against 12 members of the related Klassen and Kvello families.

The 7-0 decision brings to an end a 20-year saga that began when three children - aged four, four, and seven - were apprehended from their deaf, mute, alcoholic, and sexually abusive parents in 1987 and placed in care of Dale and Anita Klassen.

The youngsters, in the following years, told a social worker they suffered sexual abuse and satanic ritual abuse, including the sacrifice and animals and the drinking of their blood.

In 1993, criminal charges against the Klassens and Kvellos were stayed and the children later recanted their story. The families launched a malicious prosecution lawsuit the following year.

In ruling against Miazga in 2003, the trial judge questioned how the prosecutor or anyone else could possibly have believed the children's "patently absurd" story, particularly when there was no corroboration.

The judge found that Miazga had no hope of ever securing a conviction, given the incredible nature of the allegations and the propensity of the children to lie, and it therefore followed that he acted out of malice.

The Saskatchewan Court of Appeal upheld the decision in 2007.

Supreme Court Justice Louise Charron wrote that the trial judge made a "palpable and overriding error" in presuming malice.

"It is only where the conduct of the prosecutor constitutes 'an abuse of prosecutorial power,' or the perpetuation of 'a fraud on the process of criminal justice' that malice can be said to exist," she wrote.

Charron noted that the allegations surfaced shortly after 1988 Criminal Code amendments that eliminated a need for corroboration of child accusations in order to obtain a conviction.

"There was also a prevailing and pervasive doctrine, now debunked but popular among child psychologists at the time, that children don't lie about abuse," wrote Charron.

"As a result, many cases of past child abuse were coming to light in Canada, and some were given wide publicity."

The ruling gives Crown lawyers "unsupervised discretion" to prosecute without recourse because malice must be explicit rather than inferred by the circumstances, said Edward Holgate, the lawyer for the families.

"It will be much harder in the future to sue successfully," he predicted.

Cavalluzzo said the decision was needed to give direction to courts nationwide, which in recent years have handed down conflicting rulings amid an escalation in lawsuits against Crown attorneys.

The Saskatchewan government supported Miazga in his lengthy court battle, asserting that a ruling against him could have a chilling effect on prosecutors, causing them to err on the side of caution in pursuit of wrongdoing.

Friday's decision comes 20 years after the Supreme Court discarded absolute Crown immunity in a case involving nurse Susan Nelles, who was falsely accused in connection with the deaths of four babies at the Toronto Hospital for Sick Children.

Charron said she understands the anguish of the Klassen and Kvello families, who were "the victims of a clear miscarriage of justice which undoubtedly had a devastating effect on their lives."

But that solution, she said, does not lie in finding the prosecutor proceeded with malice.

The Saskatchewan government paid the families $2.46 million in a 2004 damages agreement and they will keep the money, said Holgate.

Brian Dueck, the police officer who investigated the case and laid the charges, also was found liable for malicious prosecution, but he did not appeal the decision.

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