Miazga: Malicious Prosecution

On February 7, 2008, the Supreme Court of Canada (“SCC”) granted leave to appeal to Matt Miazga from the Saskatchewan Court of Appeal’s finding of liability for the tort of malicious in the decision Miazga v Kvello Estate, 2007 SKCA 57. The SCC correspondingly dismissed the application for leave to appeal the decision in the same case which set aside the conviction of Carol Bunko-Ruys for malicious prosecution.

FACTS

As with any case involving malicious prosecution, there are two relevant court actions. The first is the criminal prosecution in which the eventual civil defendant (Mr. Miazga) is a Crown attorney. There is also the second civil action in which the acquitted defendant of the criminal action sues the Crown attorney and/or other relevant parties.

Criminal Case

In February, 1987, the Department of Social Services placed three children, a boy who was 7 years old at the time (“the boy”), and his two sisters (“the girls”) who were 4 years old, in the foster home of Dale and Anita Klassen, after a trial judge found that their biological family was “dysfunctional and likely sexually perverted”. The Klassens found the children difficult to handle, as they required constant supervision because they often attempted to sexually touch one another, as well as others, and were disruptive at school. Eventually, the boy was placed in the foster care of another family.

Carol Bunko-Ruys, a child therapist, under instruction from the Department of Social Services, began providing therapy to the boy as a result of his disruptive conduct. The boy complained to his new foster parents of abuse by the Klassens and expressed concern for his sisters, which lead to the girls being moved to the same foster home where their brother resided. The trial judge, however, found that the boy did this in order to reunite with his sisters, so that he could continue to abuse them. Following the move, all three children complained to their new foster parents of abuse by the Klassens. The children were examined by a doctor, who found that there was a likelihood that sexual abuse had occurred, but he was unable to identify the person responsible. At trial, the judge was very critical of these reports.

Brian Dueck, a police officer, upon request of the Department of Social Services, interviewed the children under the supervision of Bunko-Ruys with regard to the alleged abuse. The children claimed that they suffered abuse at the hands of the Klassens, as well as some of their family members, including various types of sexual abuse as well as satanic and ritual elements, such as the mutilation and killing of animals and babies and the drinking of their blood, as well as the cutting of the children for the purpose of drinking their blood.

In April 1991, Dueck approached another Crown Prosecutor employed by the Government of Saskatchewan, Terry Hinz, for an opinion about charges with respect to this case. Hinz, however, thought that a conviction would be unlikely without some independent validation of the evidence, in light of the bizarre nature of the allegations. About one month later, Dueck took the files to Miazga, another Crown Prosecutor for his opinion on the case, but did not tell him of Hinz’s earlier opinion. Miazga thought that Dueck should interview some of the individuals who are the subject of these allegations, as well as obtain search warrants of the premises; the searches, however, ended up to be of no use. Miazga also suggested that if Dueck “believed the children, he should proceed”. Dueck went on to file charges against the Klassens, as well as some of the other members of their family, with respect to this abuse. Miazga prosecuted the accused; but the respondents’ charges were eventually stayed by the Crown.

Malicious Prosecution Trial

In 1994, the respondents brought an action for malicious prosecution. At trial, each of the children who gave evidence about abuse renounced their earlier allegations. The trial judge found Dueck, Bunko-Ruys, and Miazga liable to the respondents for malicious prosecution. Dueck did not appeal this conviction, Bunko-Ruys and Miazga, however, appealed to the Saskatchewan Court of Appeal. Bunko-Ruys claimed that the trial judge erred in finding that the initiation of prosecution against the respondents was her doing. Meanwhile, Miazga argued that the judge erred in finding that he failed to have reasonable and probable grounds to prosecute the charges, as well as in the finding that there was malice in the prosecution only on the lack of reasonable and probable grounds.

Court of Appeal Decision

The Court of Appeal allowed Bunko-Ruys’ appeal, stating that the trial judge made an overriding and palpable error in his finding that “but for her involvement the charges would not have been laid, and even if laid, prosecutors would never have proceeded”. These findings were not supported by the evidence, as Dueck, under the advice of Miazga, decided to lay the charges, without the involvement of Bunko-Ruys. The police also had the same information as was available to Bunko-Ruys, so they were equipped to exercise independent discretion as to whether the charges should have been laid. Miazga’s appeal, however, was dismissed. While the Court of Appeal found that an inference of malice that was sufficient to uphold a finding of liability would fail based on lack of reasonable and probable grounds alone, as this would result in findings of malicious prosecution based only on mere recklessness or negligence of the Crown, the Court of Appeal concluded that Miazga’s actions constituted malicious prosecution, not just negligence, recklessness, or bad judgment, as Miazga did not believe that the respondents were guilty, or that the children were credible, but decided to proceed with the prosecution irrespective of this.

After the SCC rejected the respondent’s leave to appeal (discussed in TheCourt.ca posts by Eric Baum, here and here, and Tom Schreiter here), Robert Borden, the lawyer for all the respondents except Richard Klassen, expressed his clients’ disappointment in an article by James Wood entitled, “Mixed emotions for Klassen; Miazga allowed to appeal malicious prosecution case”, The StarPhoenix (7 February 2008). Richard Klassen, in the same article, explained that he was not surprised by the SCC’s decision, considering that the Saskatchewan Court of Appeal had “muddied the waters”.

Saskatchewan Party Justice Minister, Don Morgan, said that the Saskatchewan government will seek intervener status in the case, supporting Miazga’s appeal going forward. They will continue to support Miazga’s legal battle financially, as contractually they must support litigation that arises out of their employee’s employment; however, explained Morgan, more importantly, “what’s important for the public is getting a clear standard and a clearly defined standard for what malicious prosecution is. That affects all members of the public if they are charged with an offence.”
The SCC’s clarification of the requirements for malicious prosecution certainly does seem necessary in this case. If the standard is set too low, it may make it very difficult for Crown Prosecutors to properly do their job and may deter them from prosecuting individuals in cases where prosecution should be initiated, of fear of potential liability from their actions.