Introduction
Miazga v. Kvello Estate is a tragic, yet fascinating, case which reminds us of the devastating power of criminal prosecution to ruin innocent lives and the near impossibility to hold Crown prosecutors legally accountable when that happens [(2009) 3 SCR 339, 2009 SCC 51 http://canlii.ca/t/26g27].
Facts
In 1989, Michael, Michelle and Kathleen Ross (aged 7 to 10 years) began to accuse their biological parents, foster parents and extended family members of sexual and ritual abuse. Michelle, in a videotaped interview with Saskatoon police and therapists, described horrendous rituals that they were made to witness and endure, including acts of infanticide, cannibalism, drinking human blood, being forced to eat their own excrement, and perform sex acts. Although the allegations were preposterous and lacked any credible evidence, the prosecution was unrelenting.
On July 10, 1991, 16 people were charged with almost 70 counts of sexual assault. In fact it was Michael who was abusing his sisters, coercing them into performing and participating in sexual acts. This was known to the Klassens, who urged Social Services to transfer him to a different foster home, which they eventually did. Michael had a difficult early childhood growing up with deaf, mute, alcoholic and allegedly sexually abusive parents.
Michael then accused the Klassens of sexual assault, claiming that he was concerned about the safety of his sisters. Social Services did not separate Michael from his sisters, even though the new foster parents noted and reported similar behaviour. The investigating police officer and therapist largely ignored this when it came up. They focused on gathering evidence against the adults.
The accused adults were troubled by the investigation. They believed the investigators had prompted the children to lie by providing examples of sexual and ritual abuse, by encouraging and rewarding answers that would suggest guilt, by emphasizing the sexual parts on anatomically correct dolls, and using influence and coercion.
A number of adults were found guilty at the Saskatchewan Court of Queen’s Bench and Court of Appeal level. The Supreme Court of Canada overturned the convictions, and although the Court felt there was enough evidence to re-try the adults, the charges were stayed to prevent the children from facing more court proceedings. Eventually, all three children recanted their allegations.
Malicious Prosecution Lawsuit
Lawsuits against police and prosecutors for malicious prosecution are rarely successful. Prosecutorial independence and discretion are essential for fair and efficient functioning of the judicial system.In 1994, twelve members of the Kvello and Klassen families launched a civil action for malicious prosecution against the investigating police officer, therapist, Crown prosecutors and their supervisors. They sought $10 million in damages. This civil action played out for 15 years until prosecutor Miazga’s fate was decided by a unanimous Supreme Court of Canada.
Following the 1989 case of Nelles v. Ontario, the Court confirmed that four key conditions must be satisfied for a malicious prosecution claim to be successful. The plaintiff must prove the prosecution was:
- initiated by the defendant;
- terminated in favour of the plaintiff;
- undertaken without reasonable and probable cause; and
- motivated by malice or a primary purpose other than that of carrying the law into effect.
Only the last two elements were at issue in this case. According to the objective assessment made of existing circumstances, there was reasonable and probable cause to initiate a criminal proceeding. Malice lies in some ‘improper purpose’ by which prosecutors misuse their position for a purpose other than that which is intended for the criminal justice system. Malice was not proven in Miazga’s case.
Lawsuits against police and prosecutors for malicious prosecution are rarely successful. Prosecutorial independence and discretion are essential for fair and efficient functioning of the judicial system. Prosecutors need discretion throughout legal proceedings and they should be immune from review of this discretion unless it was motivated by an improper purpose. Crown independence ensures third parties do not influence judicial affairs. Since the Attorney General is also a political member of government’s cabinet, prosecutors must remain independent. Today, the test for prosecutions in Canada is whether there is “a reasonable likelihood of conviction.”
Criminal prosecutions impose a significant cost on accused who are not guilty. They may be subject to public scorn, humiliation and loss of reputation, and suffer from depression, anxiety and mental anguish. They may lose their jobs and future employment opportunities. They may need medical treatment and counseling. All of these afflictions were borne by the Klassens and their children. As late as 2007, Kayla Klassen said, “My whole life I’ve been called Baby Eater and I am still called that name to this day. It’s ruined my life.” Even if reputations are eventually rebuilt, one might never fully recover.
Where are the Parties Now?
During the lengthy legal proceedings, two plaintiffs (Dennis Kvello and Marie Klassen) passed away. Despite losing in court, the Kvellos and Klassens were paid $2.736 million from the Saskatchewan government for pain and suffering and legal costs. They have remained out of the spotlight since the trial, after years of public scrutiny. Richard Klassen co-founded with activist Sheila Steele, the ‘injusticebusters.org’ website, which described the trial from the perspective of the accused. Contributions to that website ended in 2006, after Ms. Steele passed away. In 2009, Mr. Klassen mused about writing a book to encourage others facing similar struggles, but he has yet to do so.
The Ross sisters, as adults, received a $560,000 settlement for the abuse at the hands of their brother. The Ross sisters were previously impoverished. One had been living homeless in downtown Vancouver. The investigating police officer is retired. Matthew Miazga continues as a Crown prosecutor in Saskatchewan.
Aleksandar Gvozdenovic a graduate of the Haskayne School of Business.
About Peter Bowal and Aleksandar Gvozdenovic
