THE COURT OF APPEAL FOR SASKATCHEWAN DONALD R., HELEN R., AND DONALD W

Saskatchewan Judgments

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R. V. R.(D.) R. V. R.(H.) R. V. W.(D.)

CA95073
Date of Judgment: May 10, 1995
THE COURT OF APPEAL FOR SASKATCHEWAN

DONALD R., HELEN R., AND DONALD W.,
APPELLANTS
and -

HER MAJESTY THE QUEEN
RESPONDENT

CORAM:
The Honourable Mr. Justice Cameron
The Honourable Mr. Justice Vancise
The Honourable Madame Justice Gerwing

COUNSEL:
Mr. J.D. Hillson for Helen R.
Mr. R. J. Kergoat for Donald R.
Mr. D.L. MacKinnon for Donald W.
Mr. K. W. MacKay Q.C. for the Crown

DISPOSITION:
Appeal Heard: December 14, 1993
Appeal Dismissed: May 10, 1995
On Appeal From: Q.B. No. 174 of 1991
Appeal File: 5984, 5972, 5976
Reasons by: The Honourable Mr. Justice Cameron
In concurrence: The Honourable Madame Justice
Gerwing
In dissent: The Honourable Mr. Justice Vancise

I also make an order prohibiting publication of any
information that could disclose the identity of the
complainant: see s.486(3) of the Criminal Code.


CAMERON J.A.

The appellants Donald R., his former wife Helen R.,
and her common law husband Donald W., were tried together
in the Court of Queen's Bench on an indictment containing
numerous counts alleging that, between January 1, 1983 and
December 31, 1989, they committed a number of offences
entailing the sexual and physical abuse of three children
of Mr. and Mrs. R., a boy and two girls then ranging in age
from one to ten.

The trial judge, Madam Justice Batten, found each of
the appellants guilty of sexually assaulting each of the
children, contrary to s. 271.[246.1](1)(a) of the Criminal
Code. She also found Donald R. guilty of assaulting the
two girls, causing them bodily harm, contrary to s. 267.
[245.1](1)(b). In addition, she found Helen R. guilty of
assaulting the boy, causing him bodily harm, and of
assaulting him with a knife, contrary to s.
276.[245.1](1)(a). She dismissed the remaining counts,
alleging gross indecency, for example, and sexual
intercourse with the children, and then sentenced Donald
and Helen R. to six years in prison and Donald W. to three.

At that, each of the appellants appealed, seeking to
have their convictions set aside and, alternatively, to
have their sentences reduced. They sought to have the
convictions set aside on the basis, first, that Justice
Batten had erred in law in numerous respects concerning the
conduct of the trial and the findings of guilt; second,
that the guilty verdicts were unreasonable or unsupported
by the evidence; and third, that fresh evidence had come to
light showing that, following the trial, someone else was
convicted of sexually assaulting the children during the
period in issue.

THE BACKGROUND OF THE MATTER

Donald and Helen R. married in 1979. He was 48, she
was 21, and both were deaf and mute. Three children were
born to them: Michael, on October 18, 1979; and Michelle
and Kathleen, on March 4, 1982. The marriage was fraught
with conflict, neither parent was up to the task of
adequately caring for the children, and conditions in the
home steadily worsened.

In time Mrs. R. took up with Donald W., spending more
and more time away from home, and the care of children fell
increasingly to Mr. R.. By May of 1986 the situation in the
home was such that a court order was made attaching
conditions to the continued custody of the children by Mr.
and Mrs. R.. Michael was so oddly and badly behaved, even
in kindergarten, that in the fall of 1986 he had to be
placed in a special program at school. There he came under
the supervision of a Mrs. Garnet Francis, who soon noticed
that the boy, though just seven years old, was given to
some unusual sexual behaviour.

The situation in the R. home did not improve, and so
on February 13, 1987, by which time Mrs. R. had moved out
and was living with Mr. W., the children were placed in the
foster home of Anita and Dale Klassen, who had two and
later three of their own children. Michael was then seven
and a half years old, and Michelle and Kathy were about
five. Within a short time of their arrival, Mrs. Klassen
observed them engaging in behaviours of a sexual nature.


Over the following eight months, from mid-February to
mid-October of 1987, the children visited from time to time
with their parents and Mr. W. Mr. R. visited with them
regularly, taking them overnight on occasion. Mrs. R. and
Mr. W. also visited them now and then, mostly at supervised
meetings. These meetings tailed off, Mr. and Mrs. R.
divorced, and in October the unsupervised visits by Mr. R.
were stopped.

In the meantime, Mrs. Klassen first took Kathy and
then Michelle for medical examinations, thinking they had
been sexually abused.

In April, some two months after the children had
arrived, Mrs. Klassen saw that Kathy's vagina was slightly
bloody. The follow-up medical examination showed extensive
infection. The incident was investigated by a worker from
the Sexual Assault Centre as well as by the police, who
noted that the R. children had sexual knowledge unusual for
their ages, but nothing much came of the incident, for it
seemed clear that Michael had been the aggressor.

Five months later, in September of 1987, the three
children visited their father Donald R. overnight. Shortly
after their return to the Klassen residence, Mrs. Klassen
noticed redness about Michelle's vagina and blood spots on
the girl's panties. The child told her something of what
had happened to her, and in the result Mrs. Klassen took
her to Dr. Eleanor McKenna. Dr. McKenna, who was told much
the same thing by Michelle as Mrs. Klassen had been told,
concluded on her examination of the child that she had been
subjected to non-accidental trauma of the genital area.
Again nothing much came of this incident, although the
unsupervised visits by Donald R. were then stopped.

By this time Michelle had started kindergarten, and
Mrs. Francis noticed that she, too, was given to some
unusual sexual behaviour. Kathy arrived at the school later
and was seen to be similarly behaved.

In November of 1989, by which time the children had
been in the Klassen foster home for nearly three years,
Helen R. consented to the children becoming permanent
wards. The Klassens were willing to care for the two
girls, but were concerned about keeping Michael. In the
result, the boy was removed from the Klassen home and was
placed with Marilyn and Lyle Thompson in Warman, whose home
was designated as a therapeutic or special foster home.

After being placed with the Thompsons in late 1989,
Michael was permitted to attend the Warman Elementary
School on a half-time basis, but only on condition he be
continuously accompanied by Mrs. Thompson, for by then he
was a deeply troubled child, exhibiting highly unusual
sexual behaviour.

Not long after his arrival at the Thompsons, he
alleged that the children had been abused in the Klassen
foster home. That prompted the Department of Social
Services to look into the situation, and in consequence the
R. girls were removed and placed, as well, in the care of
the Thompsons. That was on May 29, 1990. The girls then
entered Warman Elementary School, as well, where Michelle
was soon engaging in sexualized behaviour with other
children, requiring monitoring by a teacher's aide. And
Kathy, too, had to be regularly supervised by an aide
because of her history of sexualized behaviour.

The Thompsons also noted an array of socially
inappropriate behaviours in the children on their arrival
there, many of which had some sexual content. This was
especially true of Michael, and each of the children began
seeing Ms. Carol Bunko-Ruys, a child therapist in private
practice.

And in light of Michael's allegations, prompting the
transfer of the girls from the Klassens to the Thompsons on
May 29, 1990, the children were examined by Dr. John
Yelland on June 5 for tell-tale signs of sexual abuse. He
detected some such signs, and in the weeks that followed,
the children, who had begun opening up with Mrs. Thompson,
reported a wide range of activity purportedly involving
Donald and Helen R., Donald W., the Klassen foster parents,
and many of the Klassen relatives. As their reports
escalated, Sergeant Dueck, a Saskatoon police officer
assigned to investigate the matter, interviewed the
children at length, beginning in late October of that year
and continuing into November.

His investigation continued over the next several
months, and on May 31, 1991, the R. children were again
examined by Dr. Yelland. This time he examined them for
signs of both physical and sexual abuse, given what they
had been telling Mrs. Thompson and had told Ms. Bunko-Ruys
and Sergeant Dueck. Dr. Yelland concluded that the
children had been subjected to forms of sexual and physical
abuse consistent, in significant part, with the nature of
that they had been reporting.

Based upon all of this, together with other bits and
pieces of information, the appellants were charged with a
series of offences alleging that they had sexually and
physically abused each of the children in the seven year
period between January 1, 1983 to December 31, 1989.

Mr. and Mrs. Klassen were also charged, as were
several members of the Klassen family, including Mr.
Klassen's father, Peter Klassen, who lived with his
daughter Pam Klassen, who also had a foster home. None of
these charges had been disposed of at the time of the trial
of the appellants, which began on October 26, 1992. The
later disposition of the charges against Peter Klassen
formed the subject-matter of the application for the
admission of fresh evidence.

The fresh evidence consisted of a certificate of
conviction, certifying that on February 8, 1993 Peter
Klassen had been convicted of sexually assaulting each of
the R. children between February 1, 1987 and December 31,
1990. Apparently he pleaded guilty to the charges,
following which the charges against the other members of
the Klassen family were either withdrawn or stayed.

Whether this evidence should be admitted is best left
aside for the moment, given the procedures for handling
such applications and the conditions governing the
admission of fresh evidence, as laid down in R. v. Stolar,
[1988] 1 S.C.R. 480 and Palmer v. The Queen [1980] 1 S.C.R.
759.

The appellants were tried before Madame Justice Batten
sitting without a jury. Counsel for the Crown called
seventeen witnesses, including the R. children; the foster
parents, Mrs. Klassen and Mr. and Mrs. Thompson; the
teacher, Mrs. Garnet Francis; the two doctors, Drs. McKenna
and Yelland; the therapist, Ms. Bunko-Ruys; and a
psychiatrist, Dr. Joanne Santa Barbara.
Counsel for Donald R. called two witnesses, namely the
accused, Mr. R., and Dr. Michael Elterman, a clinical
psychologist. No other defence evidence was called.

In the course of the trial several evidentiary
disputes arose. The resulting rulings spawned numerous
grounds of appeal stating that Justice Batten had erred in
law, within the contemplation of ss. 675 (1)(a)(i) and
686(1)(a)(ii) of the Code. She was said to have erred (i)
in receiving the evidence of the children; (ii) in limiting
the cross-examination of Mrs. Thompson; (iii) in qualifying
Dr. Yelland, Ms. Bunko-Ruys, and Dr. Santa Barbara to give
opinion evidence; (iv) in disallowing cross-examination of
Ms. Bunko-Ruys with the aid of a "transcript" of the
interviews of the children conducted by Sergeant Dueck; (v)
in allowing into evidence the two out-of-court statements
made by Michelle, the one to Mrs. Klassen and the other to
Dr. McKenna; and (vi) in foreclosing the expression by Dr.
Elterman of opinions going to the reliability of the
children's allegations.

Justice Batten's reasons for judgment also gave rise
to a number of grounds of appeal, grounds alleging error by
way of mis-direction or non-direction in the assessment of
the evidence of the children, stating that she had failed
to appreciate the need for confirmation of their evidence,
and had failed to recall and keep in mind the dangers and
need for caution in convicting on such evidence.

As noted earlier, her guilty verdicts were also
attacked on the ground they were unreasonable or
unsupported by the evidence, within the contemplation of s.
686(1)(a)(i) of the Code, a ground of appeal requiring this
court to re-examine and to some extent re-weigh the
evidence with a view to determining whether a properly
instructed judge or jury, acting judicially, could
reasonable have rendered the verdicts: R. v Yebes, [1987] 2
S.C.R. 18; R. v W.(R.), [1992] 2 S.C.R. 122; R. v
Francois, [1994] 2 S.C.R. 827.

In the light of all of this, coupled with the
application to introduce fresh evidence, it is necessary to
review at some length the evidence adduced or sought to
have been adduced at trial, the disputes to which that gave
rise, the rulings that were made, the reasons for judgment,
and so on.

THE TRIAL

By the time of trial Michael was 13, and Michelle and
Kathy were ten and in grade five. Before receiving their
evidence Madame Justice Batten briefly questioned each of
them with an eye to s. 1 of the Canada Evidence Act,
inviting suggestions from counsel as to further inquiry,
but none were forthcoming. Nor was any objection made in
this connection. Satisfied each of the children was able to
do so, she permitted them to testify, and to do so under
oath, beginning with Michelle, then Kathy.

This gave rise to the first of the grounds of appeal
going to the conduct of the trial, as stated by Donald W.:

That the Learned Trial Judge erred in law by failing to
conduct an adequate inquiry under s. 1(1) of the Canada
Evidence Act so as to determine whether the child
complainants understood the nature of an oath and whether
they were able to communicate the evidence.

Counsel for Mr. W. submitted on appeal that Justice
Batten had mis-handled the matter, contending that the
children had not been adequately questioned and that their
evidence should not have been received.

I do not agree with the contention the evidence of the
children should not have been received. In the
circumstances, and having regard generally for what was
said of the subject in R. v. Marquard, [1993] 4 S.C.R. 223,
I am satisfied the evidence of each of the children was
properly received, and appropriately received under oath.
Accordingly I would dismiss this ground of appeal.

The gist of the evidence of each of the children,
especially as it affected Donald R., Helen R., and Donald
W. was this.

Michelle
Michelle testified to a good deal of sexual activity
in the R. household, including "screwing parties" in which
the children and their parents, along with Donald W., would
undress in the living room and "touch each other." On one
occasion, she said, the room was decorated with hanging bat
and ghost forms, and the children, who were naked, were
made to don bat masks and wings, and then "touch" one
another, while the adults watched from an adjoining room.
On another occasion, she said, the children were tied naked
to a dresser with a rope, while her parents--her "birth
parents" as they were referred to--who were also naked,
engaged them in sexual activity.

Her birth mom and dad had "screwed" her, she said,
meaning they had put "their finger in my bum and vagina,"
and that this happened "more times than I can count,"
adding that her mom moved her finger around when she
touched her. She said she had to touch her mom's bum and
vagina and "suck her boobs," remembering that her mom wore
a gorilla mask on an occasion when she scared and touched
the kids. Michelle also testified that her dad would put
his penis in her vagina and bum, and that she had to suck
his penis.

The child stated that she had seen her mom and dad do
the same things to Kathy, adding that she had not witnessed
any other sexual acts involving other family members.

Michelle also testified that her birth parents had a
video camera and would take videos of the kids touching.
They also had a regular camera, and took pictures of the
kids taking off their clothes or when naked.

As for Donald W.--whom the girls apparently knew as
"Uncle Donald"--Michelle said that he sometimes lived at
their house, later remembering that he had visited the
house "more than once." She testified that he would "put
his penis inside me" and "make us suck his penis." He put
both his penis and his finger in her bum and her vagina,
she said, and he had called her a "fucking bitch."

Michelle also stated that Donald W. would be there
when the kids were tied up and abused by their birth
parents. He would put his finger inside her when she was
tied up, and would say "good girl" and give her candy when
"bad touching" occurred. Although her description
suggested the kids were tied up together, she stated she
had never seen Donald W. touch Kathy and Michael.
Subsequently, she testified that when Donald W. came to the
house, there would be "screwing parties" in the living
room, involving all three adults and the three children.

She also testified that her mom and dad had burned all
three children with candles and matches. They would put
these to the kids' bodies, and it would burn and make a big
scar. Her elbows, knees, and forehead, she said, were
burned in this way. She had not seen her mom and dad burn
her brother and sister, and had not seen any scars on
either of them, but she said her mom and dad had cut all
three kids with knives. They cut her behind her ear, as
well as in her bum and in her vagina, but she did not see
anything happen to Michael or Kathy, she added.

While recalling that her mom had cut her behind her
ear, Michelle could not remember what her dad or Donald W.
had done. It was her mom who put the knife in her bum and
her vagina, she said, adding that no one other than her mom
and dad put a knife in her vagina and her bum. But Donald
W. also cut her, she stated.

She acknowledged touching other children and
"screwing" Michael in the washroom at Caroline Robins
School. And Michael, she recalled, would come into the
girls' room at night, when they were at the Klassens, and
screw both Kathy and her. She also recalled an occasion,
after the children had been placed with the Klassens, when
Michael "put a butter knife inside Kathy's private parts."

She said the Klassen household, too, was filled with
bad touching, but not as bad as that which had occurred in
the R. home, because there the people did other things to
the children.

Kathy
Kathy also testified that each of the appellants had
sexually assaulted her, and that Donald R. had harmed her
with a knife.

She said her birth dad "put his penis in my mouth, and
he peed in my mouth, and I spit it out in the sink," and
that "[h]e put his penis in my vagina and bum." As for her
birth mom, she "put her finger up my vagina and bum." She
recalled that her mom and dad had touched her private parts
"lots" of times. She also said she had never seen grown up
persons having sex or using costumes. She remembered an
"ape mask" that was used to scare the kids, but nothing
else.

Kathy stated that she had been to Donald W.'s house,
saying it was in the country, on a farm, with no houses
around. She said Donald W. would "screw" the kids in turn,
while the other kids played with the farm animals. And
when she was at his house he "put his penis in my vagina
and bum." This occurred in his bedroom, she said, with no
one else there, and he threatened to shoot her if she told
anyone. She went on to say that she had never seen Donald
W. do anything to any other child or adult at his house.

She could not remember Donald W. coming to Saskatoon,
but later remembered that he had come to Saskatoon "about
twice a week" and that he put his penis in her vagina and
bum when he was there. She could not recall his having any
kind of camera.

Kathy also recalled being cut by her birth dad. She
testified that he tied her to a table and cut her back and
her vagina, remembering that the cuts had bled and that the
neighbours had taken her to the hospital where, she
insisted, she had had stitches. She said that neither her
birth mom, nor Donald W., had hurt her or used a knife and
that she could not recall any of the accused burning any of
the children.

As had Michelle, Kathy also testified about sexual
activity involving only the children: Michael had "screwed"
her and put his penis in her vagina and bum; Michelle had
put a finger in her vagina and bum; and she, Kathy, had
done the same to Michelle. But she had not screwed or
touched Michael, she said, adding that she had never had
problems touching other kids at school. Later, however, she
remembered "screwing" the boys at Caroline Robins: "The boy
would put his penis in my vagina."

Michael
Michael also testified to having been sexually
assaulted by each of the appellants, who used to get
together, get drunk, and fight he said. He testified, as
well, to having been otherwise assaulted by his mother
Helen R..

He recounted being in his father's bedroom many times,
while the two of them were naked, and said that his birth
dad "put his penis in my bum, and I put my penis in his
bum. And then he made me suck his penis," saying this had
happened "lots and lots of times" when they were by
themselves and sometimes when they were with his birth mom,
or his birth mom and Don W..

He said his birth mom had a separate bedroom
downstairs and that, with "just me and my mom" there, "I
put my penis in her vagina, and later she made me suck her
boobs. And then I put my penis in her bum. And then she put
her finger up my bum," adding this had happened "a lot of
times. A lot, lot, lot."

He also stated that his birth parents, while naked,
would tie him or his sisters to something, while they too
were naked, and would then make them do the kinds of things
he earlier described. And one time, he said, his mother
"sexually abused us" while wearing a gorilla mask. He also
stated that he had not seen his parents touch either of his
sisters or have sex with each other.

He recalled Donald W. coming to their house with his
video-camera, saying Don W. videotaped "us when we were
having, being sexually abused" and took pictures of the
children "doing some naked things," using one of those
automatic cameras "where you take the picture and the
picture comes out," adding that when Don W. video-taped
them having sex, "My birth mom would do it to Kathy, my
birth dad would do it to me, and then we would all take
turns." And he said Don W. "sexually abused us too."

Asked to specify, Michael said, "He put his penis in
my bum, and then I put my penis in his bum, and I sucked
his penis," adding that they had done this while alone in a
bedroom and that Donald W. threatened to kill him if he
told anyone about it. He said he had not seen Don W. do
anything to any other kid, but Mr. W. would have videotaped
the kids being sexually abused and taken pictures of them.
When asked who appeared in the videos, Michael said
"Michelle and Kathy and I, and then my birth mom and dad,"
saying he had watched these videos.

He went on to testify about a trip to the home of
Donald W. in the Village of Laird, saying he had been
sexually abused by all of the appellants while there. He
said he had not see anything done there to his sisters, but
noted that when Donald W. sexually abused the kids, he
would promise them a chocolate bar or five dollar bill if
they did a good job.

Michael acknowledged that he, himself, had sexually
abused Michelle and Kathy, as well as the Klassen children
and others, saying he started touching his sisters when he
was five and they were three. While he was no longer doing
this, he still thought about it, and when asked about his
preferences, he said he liked touching both girls and boys.

Michael also testified that he had been physically
harmed in ways not specifically sexual. For example, he
stated "My mom tried to stab me to get some blood,"
pointing to his right chest area, when asked where she had
stabbed him, and saying there was a dent there and that
five drops of blood had come out. He also stated that his
"birth mom, she lit a--got a lighter going and she burnt me
here," pointing to his right hand and adding that only she
had stabbed and burned him.

He admitted to liking knives and playing with fire,
however, saying that he had threatened his sisters with
knives to dissuade them from telling on him and that he had
once set a car, and later a park, on fire.

The children testified to many other happenings in the
R. home, including some which were altogether bizarre: They
would eat "poop," including poop cast in moulds or mixed
with raw fish, and would drink "pee" and "blood"; their
mother would cut up and fry eye-balls; their parents would
screw and kill and cut up cats and dogs and babies, eating
and burying parts out back in the garden; and so on.

Portions of the testimony of the children were
obviously inconsistent, others were contradictory, and
still others were plainly wrong or wholly bizarre. Donald
W., for example, did not live on a farm with no other
houses around, as Kathy said he had, but in the Village of
Laird, with houses nearby, though his was a large lot and
had an old chicken coop out back. And, while Kathy was
adamant about having gone to the hospital for stitches, she
had never had sutures. Nor were there any babies buried
out back in the garden, and so on.

On the other hand, portions of their evidence found
confirmation in other testimony. Three Polaroid cameras
were found during a search of the bedroom of Donald W.'s
residence, for example, and several reels of old home-
movies were found in the home of Donald R., though none was
in the least incriminating. But Donald R. admitted to some
unusual behaviour in the home, and the children were found
to bear the marks, both physical and psychological, of
sexual assaults upon them, as a review of the remainder of
the evidence will show.

What to make of each of the children and their
evidence was obviously one of the central issues at trial,
with Justice Batten having to determine whether and to what
extent any of them and their testimony was credible.

Mrs. Garnet Francis.
Mrs. Francis testified to her experiences at school
with each of the children during the period beginning in
the fall of 1986, when Michael entered her classroom, and
ending in the spring of 1990, when Michelle and Kathy were
placed with the Thompsons. Mrs. Francis had had several
years of experience teaching youngsters with severe
behavioral problems and was then working toward her masters
degree in that field.

She had had contact at school with one or another of
the children during three periods of relevance to the case:
First, from early September of 1986 to mid February of 1987
(before the children were placed with the Klassens);
second, from mid February to early October of 1987 (while
the children were with the Klassens and being visited by
Mr. R., and by Mrs. R. and Mr. W.); and third, from October
of 1987 to June of 1990 (while the children were in the
care of the Klassens and up to the time the girls were
placed with the Thompsons).

Mrs. Francis testified in examination-in-chief that
when Michael entered her program for troubled children he
was immature and given to odd behaviours. He liked to put
on a housecoat, dresses, and high heeled shoes from "the
dress-up box" in the classroom. She said she had several
children who demonstrated sexually inappropriate behaviour,
adding that Michael's behaviour was not particularly
unusual in the context. But he was sexually aggressive,
and she specifically noted that he would make comments to
other children like "do you want to have sex with me" or
"do you want to touch my penis" or "can I touch your
penis."

She went on to say that for the first while after
being placed with the Klassens, Michael's appearance and
behaviour improved. But then it deteriorated in the
following school term--the 1987-88 term--after Michelle
began attending the same school. He and Michelle were found
together from time to time in the girl's bathroom, in the
same stall, engaged in sexualized behaviours. And Michael
would wear pantyhose to school under his jeans, saying it
made him feel sexy. He appeared restless and preoccupied,
became increasingly aggressive, and started running away
more often, she said. And, though only eight or nine at
the time, he became "very verbal in sexual comment,"
continually suggesting to one of the female volunteer
teachers, for example, that they have sex, and go to bed,
and the like.

Mrs. Francis said that Michael's conduct deteriorated
in all respects during the next school term (1988-89).
Running away was a particular problem. By the time he left
the school in June of 1989, his behaviour was so abnormal
the school system was unable to cope with him.

She recalled having discussed some of the boy's
problems with Donald R., and then later with Anita Klassen,
raising Michael's sexual behaviour with Mrs. Klassen. Mrs.
Klassen was reluctant to discuss that topic, however, and
refused to attend counselling with the boy--stating this
was difficult for her since she had been sexually abused as
a child.

Michelle arrived at the school in early September of
1987, about six months after the children had been placed
with the Klassens and while they were still being visited
by their natural parents and Mr. W.. Although Michelle
attended classes taught by someone else in another room,
Mrs. Francis had frequent contact with her. She testified
to Michelle and Michael being caught together from time to
time in the bathroom, apparently engaging in sexually
related behaviours--"touching" one another they had told
her when she caught them.

Mrs. Francis had Kathy in her classroom from the fall
of 1989 through to the end of June, 1990. She said Kathy,
too, was sexually aggressive. The child frequently touched
the genital areas of other children, and invited others to
touch her, and was once involved in an incident in the
bushes on the playground. Mrs. Francis was not sure about
what had gone on, but noted the kids referred to "having
had sex in the bushes."

In cross-examination, Mrs. Francis said her
recollection was that Michael was "acting out sexually" and
demonstrating "inappropriate sexual behaviour" from the
very beginning--from September of 1986 when he entered her
classroom--and that his behaviour worsened as time went on.
Pressed about when she first became concerned about his
sexual behaviours, she said in effect that she had been
concerned from the outset, voicing early concerns with a
co-worker, Dawn Shack, about the possibility of Michael
being sexually abused. She felt certain, she said, that
she had observed the boy's sexual acting out before
February of 1987, when the children were placed with the
Klassens, but she was unable to be more specific about
dates or times. Pressed further, she went on to say some
sexual touching had occurred before February of 1987, but
she resiled from saying she was "absolutely certain" of
that, suggesting she was absolutely certain of very little.
She also said the main behaviour she noted initially was
Michael's dressing up, but she remembered hearing of other
incidents involving Michael before Michelle arrived at the
school.

Mrs. Klassen
Mrs. Klassen testified that when the R. children
arrived in her home in February of 1987 they were
hyperactive, low in self-esteem, and soon seen to be
engaged in a variety of unacceptable behaviours, including
inappropriate hugging and kissing on the lips. She recalled
Michael's interest in cross-dressing, his and Kathy's bed-
wetting, and the children having been caught naked in the
play area downstairs without any satisfactory explanation.
She was of the view their sexual behaviours ("the kissing,
the time they had the clothes off, dressing up in women's
clothing") had not really changed over the time they were
in the Klassen home, except that Michael did not dress up
as much as time passed.

She stated that Michael appeared disturbed after
visits with his father, something she had noted as early as
March of 1987, and that the children were hyper after
visits with their birth parents. When pressed about whether
she could remember any other behaviours the children
displayed when they came, she again noted Michael's
dressing up, saying he had once got up at night and put on
some of her clothing in the laundry room. She also
remembered Michael being caught at some point trying to
sneak into the girls' room at night. A beeper had to
installed on his door to discourage his leaving his room
after bedtime.

Mrs. Klassen also testified about the two occasions,
in April and September of 1987, on which she had had first
Kathy, and then later Michelle, examined by doctors. She
recalled having been told by Pam Klassen, on the initial
occasion, that Michael had inserted a butter knife in
Kathy's vagina during an overnight stay at the home of Pam
Klassen.

As for the second, Mrs. Klassen said this: On
September 20th, Mr. R. returned the children to her home,
following an over night visit. He remained with her in the
kitchen for a bit, but the children avoided him, not even
saying good-bye as he left. About two hours later, while
the girls were having a bath and she was washing their
hair, she noticed that Michelle's vaginal area was
irritated and red, and that her panties appeared to have
blood on them. On being asked what had happened, Michelle
replied "My daddy touched me." At that, Mrs. Klassen
called the Mobile Crisis Centre, took the child to the
hospital, and followed up the next day by taking her to Dr.
McKenna.

What the child had told her foster mother was
received on the footing its admissibility would be
determined later, at the close of the case for the Crown.
There were other out-of-court statements at issue,
including Michelle's statement made to Dr. McKenna the
following day, and in the interests of avoiding a voir dire
or a series of voir dires, the admissibility of all of
these statements was left to be decided in this way.

In general, Mrs. Klassen's recollections were not very
detailed, and her descriptions of the R. children's
behaviour included few specifics--even at later times in
the children's stay. She was clearly of the view, however,
that all three children demonstrated inappropriately
sexualized behaviour when they came to her home.

The Thompsons
Mr. and Mrs. Thompson described the children's
behaviour in their home from the time the children arrived
until the time of trial. As they described it, the
behaviour of each of the children, including their sexual
behaviour, was quite extraordinary. Michael, though only
ten, was openly given to cross-dressing, for example, and
he made blatant sexual advances to Mrs. Thompson and her
daughters. Similarly, Michelle made suggestive approaches
to Mr. Thompson and others. And Kathy, too, exhibited
highly sexualized behaviours. Even the dogs came in for
sexual attention by the children. And all three children
manifested deep insecurities and emotional turmoil,
especially Michael, who was prone to frequent temper
tantrums, fits of rage, and sudden descents into infantile
behaviour.

Mrs. Thompson thought the boy seemed filled with fear
and loathing of Donald W.. He would imitate people from
time to time, including a person he said was Donald W., and
when imitating this person, Mrs. Thompson said, Michael
would become particularly aggressive with the girls.

She recalled that not long after the arrival of the
children they began reporting past incidents of sexual
activity, doing so reluctantly and with emotional
difficulty at first, but more freely as time passed. Upset
and confused by what she was hearing, Mrs. Thompson began
making notes, recording some of the children's reports,
along with her own thoughts. She also began telling Ms.
Bunko-Ruys about what she was hearing. In time, Mrs.
Thompson took the children, accompanied by Ms. Bunko-Ruys,
to talk to Sergeant Dueck, who interviewed them in the
presence of Ms. Bunko-Ruys and had the interviews video-
taped.

Mrs. Thompson said in effect that the interviews came
as something of a relief to her: It was reassuring that the
children were prepared to open up with others, despite the
painful and sometimes bizarre nature of what they had been
telling her, and that they then recounted what they had
told her.

Mrs. Thompson's notes were referred to extensively
during her cross-examination by counsel for Donald R., who
was interested in knowing more about the behaviours of the
children, about what they had told her of their past
experiences, and about their emotional states. The notes,
which recorded more than what had been testified to by the
children, disclosed that Michael had told her about
"screwing bats" and the like; had threatened to leave
because there was no one in the Thompson home to screw; had
implicated some of the Klassens in sexual activity; had
threatened the girls over their disclosures; and so on.

After continuing reliance on these notes, counsel for
Mr. R. began encountering opposition to his method and line
of inquiry. This was especially so in relation to some of
the things the children had told Mrs. Thompson, as recorded
in her notes, things which had not been put to the children
during their cross-examination. Madame Justice Batten
finally suggested counsel confine himself to the emotional
states of the children.

This spawned the following ground of appeal, taken by
Donald R.:
The learned Trial Judge erred in law in not allowing
Defence Counsel to cross-examine the...complainant's foster
mother with respect to their previous disclosures and the
circumstances surrounding those disclosures relevant to the
charges.

In arguing this ground of appeal, counsel submitted
that Justice Batten had prevented him from getting at
information in Mrs. Thompson's notes pertaining to two or
three other matters--bizarre allegations and threats by
Michael, for example, when confronted with having had
sexual contact with his sisters; and bizarre embellishments
by Michelle of a story pertaining to the death of a baby.

With respect I do not think this amounts to very much
of anything, especially in the context of the whole of the
evidence of the children, Mrs. Thompson, and others.
Counsel was given wide latitude in the cross-examination,
and he cross-examined Mrs. Thompson at length. To suggest
these added bits of information would have made any
difference, when viewed in the context of the whole of what
was adduced, is unrealistic in my opinion. And so I would
not give effect to this ground of appeal.


Dr. Eleanor McKenna
Dr. McKenna, a paediatrician at University Hospital,
testified to her examination of Michelle in September of
1987. She said she had found a two centimetre shallow
linear laceration along the left labia minora, consistent
with a fingernail scratch, a straddle injury, or a light
cut by an object with a smooth edge. She had also found a
"creamy discharge," along with "several blood spots" on the
girls panties, saying the discharge resembled that commonly
associated with irritation of the perineum--which can be
caused by many things including a finger or a penis--and
that blood spots were highly unusual prior to puberty.
Following the examination, she reported "there is no
question in my mind, given the history of physical
findings, that the child was subjected to non-accidental
trauma of the genital area."

Dr. McKenna went on to say that Michelle had told her
in the course of the examination--as noted in the file at
the time--that "My deaf daddy spanked my bum, then he put
his fingers in my bum. It hurt." This evidence was
received on the understanding, referred to earlier, that
its admissibility would be determined later.

Dr. Yelland
Dr. John Yelland, who had been practising family
medicine for about ten years when he examined the children
on June 5, 1990 and again on May 31, 1991, was called by
counsel for the Crown to give evidence about what he had
found, as an examining physician, and what in his opinion
lay beneath the findings, as an expert "in the nature and
cause of physical injuries which may bear upon sexual
abuse." Counsel for Donald R. objected to Dr. Yelland
expressing opinions about the underlying causes of what he
had found, suggesting the doctor be limited to his
observations in light of his limited qualifications.

The admission of expert evidence depends on the
application of the following criteria: (i) relevance; (ii)
necessity in assisting the trier of fact; (iii) the absence
of any exclusionary rule; and (iv) a properly qualified
expert: R. v. Mohan, [1994] 2 S.C.R. 9.

In the circumstances, the admission of expert evidence
from Dr. Yelland in relation to the subject-matter at issue
depended upon the need for opinion evidence in that
connection and the qualifications he possessed.

As for the first of these, the basic requirement of R.
v. Abbey [1982] 2 S.C.R. 24, at p. 42, had to be satisfied.
It was there said:
With respect to matters called for special knowledge, an
expert in the field may draw inferences and state his
opinion. An expert's function is precisely this: to
provide the judge and jury with a ready-made inference
which the judge and jury, due to the technical nature of
the facts, are unable to formulate. "An expert's opinion
is admissible to furnish the Court with scientific
information which is likely to be outside the experience
and knowledge of a judge or jury. If on the proven facts a
judge or jury can form their own conclusions without help,
then the opinion of the expert is unnecessary" (Turner
(1974), 60 Crim. App. R. 80, at o, 83, per Lawton L.J.)
[emphasis added].

In commenting upon this in R. v. Mohan, Mr. Justice
Sopinka noted at p. 23 that whether expert evidence is
necessary or unnecessary in this sense is not to by judged
by "too strict a standard" and is generally dependent on
whether the subject-matter is such "that ordinary people
are unlikely to form a correct judgment about it, if
unassisted by persons with special knowledge."

As for the second--the qualifications of Dr. Yelland--
Crown counsel had to show that this witness had acquired
special or peculiar knowledge through study or training or
experience in the subject-matter at issue, though the
threshold for qualification is comparatively low. As
Madame Justice McLachlin observed in R. v. Marquard (cited
earlier) at p. 243:
The only requirement for the admission of expert opinion is
that the "expert witness possesses special knowledge and
experience going beyond that of the trier of fact": R. v.
BÇland, [1987] 2 S.C.R. 398, at p. 415. Deficiencies in
the expertise go to weight, not admissibility. As stated
by Sopinka, Lederman and Bryant, The Law of Evidence in
Canada, (1992), at pp. 536-537:
The admissibility of such [expert] evidence does not depend
upon the means by which that skill was acquired. As long
as the court is satisfied that the witness is sufficiently
experienced in the subject-matter at issue, the court will
not be concerned with whether his or her skill was derived
from specific studies or by practical training, although
that may affect the weight to be given to the evidence.

Dr. Yelland stated that, as a physician practising
family medicine, he had taken a particular interest in the
subject of sexual abuse of children. He had attended
seminars, researched the literature, spoken on the subject,
and so on. He had also testified on the subject in the
courts from time to time, and the Department of Social
Services was referring children to him for examination in
cases of suspected abuse.

This satisfied Madame Justice Batten that Dr. Yelland
was qualified to give opinion evidence "as to the nature
and cause of physical injuries which may bear upon sexual
abuse," and with that, he testified about his examinations
of each of the children, expressing various opinions as he
went along.

The first set of examinations, conducted on June 5,
1990, was undertaken at the behest of the Department,
following Michael's allegations of sexual abuse in the
Klassen foster home. These examinations were made within a
few days of the arrival of the girls at the Thompsons, and
since sexual assault was suspected, Dr. Yelland
concentrated the examinations on the children's genital and
rectal areas, looking for bruising and abnormalities in
those areas.

As for Michelle, he said he had found marked redness
and increased vascular marking in the area of the labia
minora; scarring on the entrance to the vagina from a
healed tear; an intact hymen; and normal rectal tone.

Turning to Kathy, he said he had found distinct
redness and rawness of the genital area, extending to the
rectum; only a remnant of a hymen; scarring and fissuring
of the rectal area; and some infection. He thought
Michelle's condition was compatible, and Kathy's highly
compatible, with past sexual abuse, but could not say when
it might have occurred.

His examination of Michael revealed a raw and inflamed
rectal area and decreased rectal tone, but no evidence of
recent sodomization. Decreased rectal tone, he added, tends
to restore in time, probably in months.

The second set of examinations, conducted on May 31,
1991, followed what Dr. Yelland referred to as "much more
extensive disclosure from the children" suggesting a
history of both physical and sexual abuse. In the
circumstances, and having in the meantime become more
conversant with the subject of child abuse, he said he had
conducted a more extensive set of examinations the second
time, this time looking for signs--cuts, scars, and so on--
of physical as well as sexual abuse of the sort which had
been drawn to his attention.

Turning first to Michelle, he said he had found small
scars on the labia minora, on the hymen, and on the rectum,
consistent with penetration of some sort; a marked decrease
in rectal tone; scarring behind the right ear, consistent
with a cut from a sharp object; and scarring on her
forehead, right elbow, knees, and abdomen, consistent with
burns.

As for Kathy he noted that her hymen was largely gone,
that she had a marked decrease in rectal tone, and that she
also had rectal scarring. All of this was consistent, in
his opinion, with digital or other forms of penetration of
the vagina and rectum. Kathy also had a scar on her chest
and a scar on her inner right thigh, both consistent with
burns in his view. In addition she had a seven centimetre,
S-shaped scar on her back, which suggested to him that she
had been deliberately cut with a knife or other sharp
instrument.

As for Michael, he found the boy's rectal tone
markedly decreased; his rectum scarred; his back, right
hand, and left calf scarred from what appeared to have been
second or third degree burns; and his right chest scarred,
just below the nipple, suggestive of an old puncture wound.

In sum, and generally speaking, Dr. Yelland was of the
opinion each of the children had been subjected to sexual
and physical abuse in the past, any where from a few months
to several years ago, judging from the scars. The apparent
tears, puncture, cuts, and burns had all healed, making it
impossible to know when, more precisely, the injuries had
occurred.

Justice Batten's ruling, qualifying Dr. Yelland to
give opinion evidence, prompted the following ground of
appeal by Donald R.:
That [she] erred in law in qualifying a general
practitioner, Dr. John Yelland, as an expert witness to
give evidence as to the nature and causes of physical
injury that may bear upon sexual abuse.

According to the submission of counsel for Mr. R., Dr.
Yelland was an experienced physician, possessed of
knowledge beyond that of Justice Batten, but he was not
qualified to express opinions in the narrow area concerning
"the nature and causes of physical injury that may bear
upon sexual abuse."

Though no such objection had been made on behalf of
Mr. W. at trial, his counsel on appeal submitted that the
qualifications, training, and experience of Dr. Yelland,
while satisfactorily equipping him to treat injuries of the
sort experienced by the children, were not satisfactory
when it came to the "identification and cause of physical
injuries and injuries arising out of sexual abuse."

It should perhaps be noted that the submissions were
no more specific than this, and that both the ground of
appeal and the submissions in support of it were confined
to the decision of Justice Batten to formally qualify Dr.
Yelland as she had.

Precisely what was encompassed by her having qualified
him as an expert "as to the nature and cause of physical
injuries which may bear upon sexual abuse," is difficult to
say. It might have been better had he been qualified in
more precise and perhaps somewhat larger terms in light of
what was to come, for he was going to be called upon to
express opinions in relation to both sets of examinations,
the first confined to signs of sexual abuse, the second
extending to signs of both sexual and physical abuse. But
as a physician who had taken a particular interest in the
subject of sexual abuse of children and who was experienced
in the field he was certainly equipped to offer some
legitimate opinion evidence as to the causal inferences
which might be drawn from this finding or that. In light
of that, and having regard for what was said of the law in
R. v. Marquard, I do not think Justice Batten erred in
qualifying him as she did.

Whether she intended in doing so to qualify him to
express some of the specific opinions he expressed--that
this or that scar was indicative of a burn or a puncture
wound, for example--is not clear. And whether he was
adequately equipped for that is perhaps debatable. But he
expressed his views, and since the submissions did not
extend beyond taking issue with Justice Batten's decision
to qualify him as she did, I do not intend to comment
further, except to say that in the circumstances this would
go to weight only.

Ms. Carol Bunko-Ruys.
Ms. Bunko-Ruys held a Bachelor of Arts from the
University of Victoria, Faculty of Human and Social
Development, and had worked with dysfunctional children
for a number of years. Besides running group workshops and
that sort of thing, she had been in private practice as a
child therapist and consultant for about four years when
the children were referred to her. She was being consulted
from time to time by rural school boards experiencing
difficulty with youngsters.

In light of her education and experience, the Crown
sought to have her qualified as an expert witness, enabling
her to go beyond her observations of the children and
express certain opinions. Defence counsel objected,
suggesting in particular that she was not qualified to
express opinions about "whether or not certain
characteristics are indicators of past abuse, and what form
of abuse, and who that abuse may have been with." As for
the last of these, it was said in effect that the
investigation of sexual abuse, and the identification of
abusers, was clearly beyond her expertise.

Ms. Bunko-Ruys stated that she had worked, as a
therapist, with approximately a hundred abused children--
about half of whom had histories of sexual abuse--and had
provided advice, as a consultant, on dealing with
dysfunctional children. She had had no training or
experience, however, in investigating sexual abuse or in
identifying abusers. Indeed in her work as a therapist, she
said, she did not consider it her role to question what
children told her or to try to determine the truth of it.

It thus became clear that, while she might have been
able to offer some opinion evidence of assistance to the
Court, she was in no position to do so in relation to the
investigation of allegations of sexual abuse or the
identification of suspected abusers, assuming such evidence
was otherwise admissible.

Having heard the matter out, Justice Batten ruled that
Ms. Bunko-Ruys was qualified to give expert opinion
evidence as to "the behavioral, social, and emotional
characteristics of sexually abused children."

And so Ms. Bunko-Ruys, in addition to testifying about
her own observations of the R. children, whom she described
as "some of the most dysfunctional children I've ever
worked with," was permitted to express a number of
opinions. Some were of a general nature, relating for
example to the developmental stages of children and to the
indications and causes of arrested development at this or
that stage. Some were more specific.

She expressed the specific opinion that the R.
children, who showed signs of having been sexually abused,
had been "traumatized at relatively early stages of their
development," explaining that she could not say they had
been subjected to some trauma during this month or that
year, or even at age three necessarily, but that she could
say, based upon her experience and the literature with
which she was familiar, that the children had been
traumatized early in their emotional development, as
indicated by the lack of such early developmental traits as
basic trust and a sense of safety and security which she
had observed in the children.

She was cross-examined about this, allowing that forms
of trauma related to separation, most particularly removal
from the birth home, could cause developmental difficulties
of the sort experienced by the R. children.

She was also cross-examined, by counsel for Donald R.,
about the interviews of the children conducted by Sergeant
Dueck. She had been present, in her capacity as the
children's therapist and as "a supportive person," and she
had apparently assisted them during the interviews, though
none of this was made very clear. At any rate, counsel
asked her about what the children had said in relation to
this or that matter, and about whether children might
eventually be induced to respond positively to a question
if repeated often enough. She recalled what she could of
the children's disclosures and expressed the view children
could probably be induced to say "yes" to a question,
though having first said "no," if the question were to be
asked over and over again. Unable, however, to remember
some of the things the children had said, and how many
times this or that question might have been asked, she was
invited from time to time to time to refresh her memory by
reference to a document in the possession of counsel for
the defence.

The document was being taken by counsel--as it had
been earlier, during the cross-examination of the children-
-as constituting a "transcript" or "transcripts" of
Sergeant Dueck's interviews. It seems the defence, who had
been given copies of the video-tapes, had had the tapes
transcribed by someone, though the document had not been
proved, as such, nor entered in evidence, either by
agreement or otherwise. Indeed Sergeant Dueck, who had
earlier been examined and cross-examined, had not been
asked about the document. Nor had he been cross-examined
along the line of how the interviews had been conducted.

Eventually counsel's tack in having Ms. Bunko-Ruys
turn to the document to refresh her memory, especially in
the context of the manner in which the children had been
interviewed, drew objection and precipitated a lengthy and
sometimes confusing wrangle. The upshot of it was a ruling
by Justice Batten preventing counsel from thus using the
document in aid of his cross-examination of this witness.
And with that, counsel continued his cross-examination
along different lines.

The testimony of Ms. Bunko-Ruys, and in particular her
cross-examination, gave rise to the following grounds of
appeal--the first two raised by Donald R., the third by
Helen R., and the fourth by Donald W.--stating that Justice
Batten had erred:
...in qualifying a therapist, Carol Bunk-Ruys, as an expert
witness to give evidence concerning the behavioral
characteristics of the sexually abused children.
...in limiting Defence Counsel's cross-examination of
expert Carol Bunko-Ruys, in not allowing Defence the
opportunity to present video tapes or transcripts of her
interviews with the complainant children.
...in limiting cross-examination concerning the manner in
which statements were taken from the infant witnesses and
how evidence was elicited from them.
...by limiting Defence Counsel's cross-examination of Carol
Bunko-Ruys and... by refusing the defence the opportunity
to have the witness refresh her memory by having the
witness review video tapes or transcripts of the witness's
interviews with the child complainants.

I can see no merit in the first of these. I refer
again to R. v. Marquard, and to R. v. Burns, [1994] 1
S.C.R. 656, simply to make the point that generally
speaking there is a low threshold for qualification. I
refer as well to R. v. B. (G.), [1990] 2 S.C.R. 30, to make
the point that opinion evidence going to the behavioral
characteristics of sexually abused children is generally
admissible, a point reinforced in R. v. Marquard. Having
regard for this, and for the education and experience of
Ms. Bunko-Ruys, I do not think it can be said Justice
Batten erred in qualifying the witness as she did.

And although little was made of this, I should say I
do not think she erred in permitting the witness to express
the opinions which were expressed. Nor do I think the
witness went beyond her area of expertise. Indeed she was
conscious of her own limitations, conscientious in not
going beyond them, and fair, I might add, in the opinions
she expressed. That is my assessment of the matter, and
accordingly I can find nothing of concern in relation to
the first ground of appeal. I might also add that Justice
Batten found Ms. Bunko-Ruys to have been a very capable
witness.

The other grounds of appeal--having to do with the
cross-examination of Ms. Bunko-Ruys and with the video-
tapes and so called "transcripts" of the interviews of the
children--are more complex, but in my opinion they are
ultimately no more telling against the conduct of the trial
than the first.

As I understood the submission on appeal, the
principal complaint in substance--issues of form aside--was
that defence counsel had been unable to pursue an important
line of inquiry with this witness, namely the propriety of
the methods by which the interviews had been conducted, a
line of inquiry directed toward the integrity of the
interviews and the credibility and reliability of the
testimony of the children. The point of the complaint
seemed to have been this: The testimony of the children
might have been discredited had counsel been able (i) to
establish through Ms. Bunko-Ruys that the children had been
interviewed in this manner or that, and (ii) to have then
drawn from her the opinion they had been interviewed in an
inappropriate manner, one calculated, wittingly or
unwittingly, to induce them to have said this or that.

The ultimate flaw in this, the first leg of the
submission, is that Ms. Bunko-Ruys was not qualified to
express such an opinion. Her expertise did not extend that
far. And even if she had been drawn out to this effect,
what weight could have been given to her views? Very
little I should think, especially when viewed in context.

With respect, it does not seem to me that counsel was
intent on fully exploring the methods employed during
Sergeant Dueck's interviews of the children with a view to
attacking those methods--as distinct from exposing bits and
pieces of the interviews and merely seeding doubts about
the methods. Had it been thought the sergeant had used
improper methods, and had implanted ideas in the minds of
the children or induced them to say this or that, why was
the matter not put to him? And why had there been no
earlier effort to introduce the video-tapes for that
purpose or to have him or someone else authenticate the
"transcripts"? And finally, why was the matter not put to
others, especially to Dr. Elterman who testified at the
call of the defence and who had had much experience with
such matters?

It was suggested that Justice Batten, in limiting the
cross-examination of Ms. Bunko-Ruys, had in effect ruled
out the admissibility of the video-tapes or transcripts,
thus preventing them from being introduced for the purpose
of attacking the integrity of the interviews. With
respect, I think this is overdrawn. She was not about to
have the "transcripts" go in through the back door--in
piecemeal fashion and in the guise of having Ms. Bunko-Ruys
refresh her memory--and she was not about to allow counsel
to continue to cross-examine the witness along the line at
issue and with the aid of the so-called "transcripts."
That much is clear. But I do not think it can be said she
ruled out the introduction of the video-tapes, or an
authenticated version of the transcript, for the purpose of
other attacks upon the methods employed in the conduct of
the interviews, including a frontal attack by the defence.

In her ruling limiting the cross-examination of Ms.
Bunko-Ruys, Justice Batten expressed the opinion, "unless
I'm convinced by further argument," that the transcript
could not be entered as evidence. Defence counsel then
said this might "cause problems" down the road, adding that
he intended to call an expert who had studied the case and
come to some conclusions based upon seeing the tapes.
Justice Batten responded by saying, "That may be a problem
that we'll have...that we will come to." "Well yes,"
replied counsel, "Maybe I'm getting ahead of ourselves."
As it turned out, this was the end of the matter, for it
was not again raised.

For these reasons, then, I think the remaining grounds
of appeal pertaining to the testimony of Ms. Bunko-Ruys
must also fail.

Dr. Joanne Santa Barbara.
Dr. Santa Barbara, a child psychiatrist and assistant
professor of psychiatry at McMaster University, was called
by the Crown as an expert in "child development" and "the
characteristics of abused children." The defence did not
object to that. She was experienced in diagnosing and
treating the conditions in children brought on by sexual
abuse. She was also experienced in evaluating allegations
of sexual abuse in the context of custody disputes in
family courts, and she had been involved in the
investigation and consideration of several instances of
alleged ritualistic or satanic abuse. While not objecting
to her testifying as an expert in child development and the
characteristics of abused children, the defence did object
to some of her testimony, particularly as it related to
reportings of ritualistic abuse.

Dr. Santa Barbara began by testifying to the
development and working of memory in children, commenting
on their abilities at various ages to encode and recall
information. She said children can have memories of salient
events occurring at age three or four, especially of
sexually abusive events, but that it is difficult for
children under ten to place events in sequence and in time.
She said, too, that young children are open to a degree of
manipulation in recounting events, not in relation to the
core of a registered memory but in respect of peripheral
details which can easily be added to by suggestive or
leading questions, noting that while children of a very
young age may be indoctrinated with false accounts of a
simple nature, they are not capable of concocting highly
elaborate falsehoods. She went on to say that if a child is
required soon after the happening of an event to repeatedly
recount it, the memory of it may become consolidated and
even more reliable, provided the account was elicited
without implanted suggestions or erroneous leads, adding
that recounting distressing events is at first emotionally
difficult for children, but that they develop defensive
mechanisms, and so repetitions may in time reflect boredom
or annoyance, or become unemotional and flat.

Turning to the characteristics of abused children, she
said "sexualization" was the strongest indicator of sexual
abuse. Sexualization, she explained, is manifested in many
ways, including inappropriate sexual play resistant to
correction; frequent remarks about sexuality; advanced
knowledge of, and interest, in the subject; initiating
sexual contact with other children or adults; and so on.
The longer and more often children are sexually abused, she
observed, the more intense is their sexualization. Playing
with dogs in a sexual way may indicate a very sexualized
child, she noted, and running away at a very young age is
indicative of something gone badly wrong in the home.

Presented with hypothetical examples of sexualized
behaviours in children--resembling the behaviours in
evidence--she expressed the view they were indicative of
"long-standing serious abuse" or of "a pattern of long-
standing sexualization." Intense sexualization early in a
child's life at school is consistent, she said, with
earlier serious abuse, and behaviour in a child of five,
consisting of the frequent initiation of sexual contact
with siblings and other children of similar age, is usually
seen in the context of a pattern of long-standing
sexualization.

Given her experience in the investigation and
consideration of several incidents of reported ritualistic
abuse, she was also asked about this subject. Justice
Batten permitted her to testify about it, reserving her
ruling on the admissibility of this evidence and directing
the evidence be confined to the experience of the witness
and not include opinions. And so Dr. Santa Barbara
commented upon typical aspects of the phenomenon and its
reporting, noting that reportings by children seem grounded
in mis-perception or mis-interpretation, even trickery,
rather than in imagination or conscious falsehood. She was
quick to add, however, that people in the field are
grappling with the phenomenon and that a great deal more
remained to be learned.

Her testimony gave rise to two grounds of appeal--
taken by each of Donald R. and Donald W.--stating the trial
judge had erred in law:
...in allowing Dr. Joanne Santa Barbara to give opinion
evidence in the area of ritual sexual abuse after
determining that the witness could not be qualified as an
expert in that area.
...in allowing expert evidence to be admitted concerning
the credibility of children's allegations of sexual abuse,
which evidence contravened the rule against oath helping.

In the circumstances, little need be said of the first
of these grounds of appeal. Counsel for Mr. R. confined his
argument to the second, and counsel for Mr. W. made only
passing comments on the first. Having made the point that
Justice Batten was probably bound on the authority of R. v.
Marquard to have disregarded the opinion evidence on this
subject, counsel for Mr. W. went on to acknowledge that she
may very well have done so, since she made no mention of it
in her reasons for judgment, adding that the more important
issue was that raised by the second or related ground of
appeal.

As for the second ground, counsel for the appellants
submitted that portions, if not all, of the opinion
evidence of Dr. Santa Barbara should not have been
received, because it was adduced for the purpose of
bolstering the credibility of the children, contrary to the
principle affirmed in R. v. Beland, [1987] S.C.R. 398. The
submissions varied. Counsel for Mr. R. took issue with the
whole of the evidence of the witness, saying none of it was
admissible for this reason. Counsel for Mr. W. objected to
only portions of it, contending that Justice Batten should
not have permitted the witness to testify that children of
a very young age are incapable of concocting highly
elaborate stories and that their reportings of ritualistic
abuse appear to be grounded in mis-interpretation or mis-
perception, rather than in conscious falsehood.

This issue falls to be addressed with the observations
of Madame Justice McLachlin in R. v. Marquard in mind (at
pp. 248-250):
It is a fundamental axiom of our trial process that
the ultimate conclusion as to the credibility or
truthfulness of a particular witness is for the trier of
fact, and is not the proper subject of expert opinion.
This Court affirmed that proposition in R. v. BÇland,
supra, at p. 408, in rejecting the use of polygraph
examinations as a tool to determine the credibility of
witnesses:
From the foregoing comments, it will be seen that the rule
against oath-helping, that is, adducing evidence solely for
the purpose of bolstering a witness' credibility, is well
grounded in authority.
A judge or jury who simply accepts an expert's opinion on
the credibility of a witness would be abandoning its duty
to itself determine the credibility of the witness.
Credibility must always be the product of the judge or
jury's view of the diverse ingredients it has perceived at
trial, combined with experience, logic and an intuitive
sense of the matter: see R. v. B.(G) (1988), 65 Sask. R.
134 (C.A.), at p. 149, per Wakeling J.A., affirmed [1990] 2
S.C.R. 3. Credibility is a matter within the competence of
lay people. Ordinary people draw conclusions about whether
someone is lying or telling the truth on a daily basis. The
expert who testifies on credibility is not sworn to the
heavy duty of a judge or juror. Moreover, the expert's
opinion may be founded on factors which are not in the
evidence upon which the judge and juror are duty-bound to
render a true verdict. Finally, credibility is a
notoriously difficult problem, and the expert's opinion may
be all too readily accepted by a frustrated jury as a
convenient basis upon which to resolve its difficulties.
All these considerations have contributed to the wise
policy of the law in rejecting expert evidence on the
truthfulness of witnesses.

On the other hand, there may be features of a
witness's evidence which go beyond the ability of a lay
person to understand, and hence which may justify expert
evidence. This is particularly the case in the evidence of
children. For example, the ordinary inference from failure
to complain promptly about a sexual assault might be that
the story is a fabricated afterthought, born of malice or
some other calculated stratagem. Expert evidence has been
properly led to explain the reasons why young victims of
sexual abuse often do not complain immediately. Such
evidence is helpful; indeed it may be essential to a just
verdict.

For this reason, there is a growing consensus that
while expert evidence on the ultimate credibility of a
witness is not admissible, expert evidence on human conduct
and the psychological and physical factors which may lead
to certain behaviour relevant to credibility, is
admissible, provided the testimony goes beyond the ordinary
experience of the trier of fact. Professor A. Mewett
describes the permissible use of this sort of evidence as
"putting the witness's testimony in its proper context."
He states in the editorial "Credibility and Consistency"
(1991), 33 Crim. L.Q. 385, at p. 386:
The relevance of his testimony is to assist -- no more --
the jury in determining whether there is an explanation for
what might otherwise be regarded as conduct that is
inconsistent with that of a truthful witness. It does, of
course, bolster the credibility of that witness, but it is
evidence of how certain people react to certain
experiences. Its relevance lies not in testimony that the
prior witness is telling the truth but in testimony as to
human behaviour.
...
There are concerns. As the court stated in R. v.
J.(F.E.),[(1990), 53 C.C.C. (3d) 94, 74 C.R. (3d) 269, 36
O.A.C.348 (C.A.)] and R. v. C.(R.A.) (1990), 57 C.C.C. (3d)
522, 78 C.R. (3d) 390, the court must require that the
witness be an expert in the particular area of human
conduct in question; the evidence must be of the sort that
the jury needs because the problem is beyond their ordinary
experience; and the jury must be carefully instructed as to
its function and duty in making the final decision without
being unduly influenced by the expert nature of the
evidence.

The conditions set out by Professor Mewett, reflecting
the observations of various appellate courts which have
considered the matter, recommend themselves as sound. To
accept this approach is not to open the floodgates to
expert testimony on whether witnesses are lying or telling
the truth. It is rather to recognize that certain aspects
of human behaviour which are important to the judge or
jury's assessment of credibility may not be understood by
the lay person and hence require elucidation by experts in
human behaviour.


Turning first to the submission of counsel for Mr. R.
with this in mind, I do not see how it can be said that the
whole of the evidence of Dr. Santa Barbara was
inadmissible. Indeed I think the submission was greatly
overdrawn. Much of her evidence, particularly as it
related to the behavioral characteristics of sexually
abused children, was received in the context of the
testimony of others going to the remarkable sexual
behaviours displayed by each of the children. The earlier
testimony of Mrs. Francis and others was that these
children had been extraordinarily interested and
knowledgeable when it came to sexual matters, and that they
had engaged in remarkable sexual behaviours at an early
age. Should the trial judge have taken this to have been
the fact, what inferences, if any, might she logically have
drawn from it?

This is where a good portion of the evidence of Dr.
Santa Barbara came in. It was adduced for the purpose of
laying the groundwork for the inference that each of the
children had been sexually assaulted at a very early age,
even before they began going to school, a classic example
of the appropriate use of expert evidence: R. v. Abbey
(cited earlier). And so far as the evidence dealt with the
behavioral characteristics of children subjected to sexual
abuse, there can be no quarrelling with it in light of what
was said in R. v. Marquard and R. v. B. (G.). In the
latter, it was said that evidence of this nature is "well
within the bounds of acceptable and admissible testimony
and...in cases of sexual assault against children the
opinion of an expert often proves invaluable."

Other portions of the evidence of Dr. Santa Barbara
went to the development and working of memory in children,
evidence which she gave as an expert in child development
and which was received on that basis. Neither the ground
of appeal in this respect, nor the submissions of counsel
in support of it, took issue with the reception of this
portion of the evidence on the footing the witness was not
qualified to give it, or that it was irrelevant, or that it
was not needed to assist the court, but on the basis alone
that it was adduced for the sole purpose of bolstering the
credibility of the children.

In general, and having regard for what was said of the
subject in R. v. Marquard, particularly as it pertains to
children and their evidence, I do not think this portion of
the evidence of Dr. Santa Barbara was inadmissible on the
basis contended for. The witness did not say the children
were telling the truth--indeed she had had nothing to do
with them. She said children in general can have memories
of salient events at an early age, have difficulty with
sequence and time, and are incapable of concocting
"elaborate falsehoods" at a "very young age." In short, I
do not think this went too far. Nor do I think the last of
these observations was very significant. I cannot think it
told the judge much of anything not already known to her.

Finally there was the evidence pertaining to Dr. Santa
Barbara's experiences with reportings of ritualistic abuse.
It is difficult to see how this subject, as such, was
relevant. What was said here and there in discussing it,
however, might have been relevant and admissible in some
other context, in the context perhaps of the evidence drawn
from Mrs. Thompson and others that the children's accounts
of what had happened to them in their birth home included
some detail so bizarre as to have been beyond the realm of
reality. Were this capable of being seen as an aspect, a
relevant psychological aspect, of the extraordinary conduct
or behaviour of these children, perhaps some of this
evidence of Dr. Santa Barbara could properly have gone in.
I have in mind those portions of her evidence to which the
submission was directed and in which she said that bizarre
reportings by sexually abused children seem grounded in
mis-perception or mis-interpretation, rather than in
conscious falsehood. As was said in Marquard "...expert
evidence on human conduct and the psychological and
physical factors which may lead to certain behaviour
relevant to credibility, is admissible, provided the
testimony goes beyond the ordinary experience of the trier
of fact."

There is no need to pursue that, however, since this
portion of the evidence of Dr. Santa Barbara seems to have
been ignored by Justice Batten. She heard the evidence,
saying she would rule on its admissibility later, but
apparently she concluded there was no need for that, for
she did not return to the subject. Nor did she make any
mention of this evidence in her reasons for judgment. In
the circumstances, then, I do not think there is much to be
made of this.

In sum, that was the case for the Crown. Before the
Crown closed its case, however, Justice Batten heard
argument on the admissibility of the evidence of Mrs.
Klassen and Dr. McKenna relating to what Michelle had told
each of them.

The Out-of-Court Statements by Michelle
Crown counsel made it clear he was seeking admission
of the statements for the purpose of establishing the fact
that Donald R. had sexually assaulted Michelle on the
occasion of the overnight visit on September 20, 1987. He
wanted the girl's statements received for the truth of
their contents, and to that end he argued that the evidence
met the general requirements of "necessity" and
"reliability" as set out in R. v. Khan [1990] 2 S.C.R. 531.
He contended that the testimony of each of Mrs. Klassen and
Dr. McKenna should be accepted as truthful and accurate;
that it was necessary to receive the statements of the
child through them, because the child had been unable to
recall the occasion while testifying; and that the
statements bore the marks of reliability, given the then
age of the child, and the timing, spontaneity, and
confirmatory evidence in support of the statements.

Counsel for Mr. R. pointed out that the court was to
have regard for such considerations as timing, demeanour,
personality and intelligence of the child, and the absence
of motive to fabricate. He then went on to contend against
the admission of the evidence on the ground primarily that
it lacked the requisite reliability. He argued, first,
that Mrs. Klassen's account was suspect since she, too, had
been charged; second, that the statement made to her was
sufficiently ambiguous in the use of the words "my daddy"
as to refer, perhaps, to Mr. Klassen, noting that the
statement was changed the next day to "my deaf daddy";
third, that the children, Michelle included, were quite
capable of fabrication and falsehood, according to their
evidence; and fourth, that according to Michael's evidence,
he was then engaging in sexual activity with his sisters,
including penile and digital contact with Michelle during
visits to their birth home. Other considerations aside,
counsel submitted that if the evidence of the children in
these respects should be accepted, the out-of-court
statements by Michelle were insufficiently reliable for
admission.

In taking up the arguments, Justice Batten first
reviewed the evidence of Mrs. Klassen and Dr. McKenna
regarding the circumstances surrounding the making of the
statements. She then noted that the child, who was age
five and-a-half when the statements were made--and ten at
the time of trial--had not remembered going to the
hospital, or being examined by Dr. McKenna, or visiting the
home of her father on this or any other occasion while she
was with the Klassens. She then said,
I find on the basis of the evidence before me that the
admission of these two out-of-court statements alleging
sexual abuse is reasonably necessary, and that the evidence
in regard to them bears sufficient entity of reliability.

In explaining her findings, she turned first to
necessity, saying that given Michelle's age, the many
incidents in which she had been involved, her traumatized
condition, and her state of anxiety while testifying, the
child
was either unable to compel herself to recall the events in
question, or was mentally incapable of recalling those
events and giving her evidence in court. It is therefore
reasonably necessary to admit the statements in order to
obtain a full and candid account of the child's version of
the occurrence.

She then turned to reliability, saying
the presence of what appeared to be blood on the panties
focused the attention of Anita Klassen to the child's
explanation, which was not an accusation by the child. And
her immediate reaction in calling the Mobile Crisis Centre,
and taking the child to the hospital indicates that she
noted the explanation accurately. Dr. McKenna was
meticulous in noting the child's exact words. The child had
no reason to give anything but what she believed to be the
true explanation to Anita and Dr. McKenna.

And at that, she concluded by stating:
Both statements satisfy the requirement set out in the Kahn
(sic) case, and will accordingly be admitted as proof of
the truth of the contents. The matter of the weight to be
attached to the statements as to, and their reliability is,
as with all other admissible evidence, to be argued later.

On appeal, counsel for Mr. R. submitted that, in thus
admitting the statements, the trial judge had erred in law
for the reasons, first, that this was not a situation of
"necessity" and, second, that this evidence lacked the
requisite "reliability," within the contemplation of R. v.
Khan and R. v. Smith [1992] 2 S.C.R. 915. Of the two
requirements, counsel emphasized the second.

What is meant by "necessity" and "reliability" for
these purposes was dealt with in each of Khan and Smith.

"Necessity" was taken in Khan to mean "reasonably
necessary," and in Smith it was said, at p. 933, that this
criterion
refers to the necessity of the hearsay evidence to prove a
fact in issue. Thus, in Khan, the infant complainant was
found by the trial judge not to be competent to testify
herself. In this sense, hearsay evidence of her statements
was necessary in that what she said to her mother could not
be adduced through her. It was her inability to testify
that governed the situation.

...the criterion of necessity must be given a flexible
definition, capable of encompassing diverse situations.
What these situations will have in common is that the
relevant direct evidence is not, for a variety of reasons
available. Necessity of this nature may arise in a variety
of situations....

Clearly the categories of necessity are not
closed....Whether a necessity of this kind arises, however,
is a question of law for determination by the trial judge.

"Reliability" was said in Smith, at p. 933, to be "a
function of the circumstances under which the statement in
question was made":
If a statement sought to be adduced by way of hearsay
evidence is made under circumstances which substantially
negate the possibility that the declarant was untruthful or
mistaken, the hearsay evidence may be said to be
"reliable," i.e., a circumstantial guarantee of
trustworthiness is established. The evidence of the infant
complainant in Khan was found reliable on this basis.

The Court made it clear, in speaking of "a circumstantial
guarantee of trustworthiness," that the phrase does not
require reliability to be established with absolute
certainty. It also made it clear that the determination of
reliability, in the context of a decision to admit or not
to admit such evidence, is only a preliminary determination
(p. 932):
The preliminary determination of reliability is to be made
exclusively by the trial judge before the evidence is
admitted.

Such determinations, of course, fall to be made on a
variety of considerations, depending on the circumstances.
Thus in Khan, at p. 547, McLachlin J. noted that
Many considerations such as timing, demeanour, the
personality of the child, the intelligence and
understanding of the child, and the absence of any reason
to expect fabrication in the statement may be relevant on
the issue of reliability.

Having regard for this, and for the observation in Smith
that the notion of reliability is a function of
circumstance, it will be appreciated that this issue of
"reliability" must be determined on a case by case basis
and is largely fact driven. In other words this issue is
more heavily dependant on fact finding by the trial judge
than is the issue of "necessity."

With that, I turn to the submission of counsel for Mr.
R., beginning with that branch of it going to the
requirement of necessity. Counsel contended that since
Michelle had been permitted to testify, unlike the
situation in Khan, there was no room for admission of the
statements by way of hearsay evidence. With respect, I do
not agree. Having regard for what was said of this subject
in each of Khan and Smith, and for what the trial judge in
this case had to say of the circumstances, I do not think
she erred in law in taking this situation to answer to the
requirement of necessity.

I note that the Ontario Court of Appeal, faced with
similar circumstances in Khan v. The College of Physicians
& Surgeons (1993), 76 C.C.C. (3d) 10, held that the
situation amounted to one of necessity. The Court examined
the issue with care, and I believe its decision is
consistent with the earlier decision of the Supreme Court
of Canada in R. v. Khan and the later decision in R. v.
Smith.

And so I do not agree with the first branch of the
submission. Before leaving this branch, however, I want to
emphasize the nature of the situation in the case before
us, as found by Justice Batten, in making the point I do
not think she erred in applying the law to the situation.

On the second branch of the submission, counsel
contended that the statements were insufficiently reliable
to be admissible, not having been made "in the absence of
any reason to expect fabrication" (R. v. Khan) or "under
circumstances which substantially negate the possibility
the declarant was untruthful or mistaken" (R. v. Smith),
In support of his contention, he pointed to the evidence of
the children, especially that of Michael, arguing that
Michael might very well have sexually assaulted Michelle on
the occasion at issue and that she might have falsely
implicated her father out of fear of her brother. "The
Court, in determining the issue of reliability," counsel
said, "made no mention of [this] significant evidence."

While these contentions recognize that reliability is
a function of circumstance, and that circumstance is
ultimately a matter of fact, I am not sure the significance
of this was fully appreciated. In the main, counsel's
arguments go to the fact-finding components of the trial
judge's determination. She had to consider the evidence
before her with the principle of reliability in mind, find
the relevant facts, and apply the principle to those facts.
To the extent she might have misapprehended the principle,
or misapplied it, we may readily intervene should we be of
the view the error resulted in a miscarriage of justice in
relation to the count of sexual assault at issue. But for
us to intervene in her findings of fact, in the absence of
error of law, is another matter.

As her reasons disclose, either expressly or by clear
implication, she accepted as both truthful and accurate the
evidence of Mrs. Klassen and Dr. McKenna in relation to the
circumstances surrounding the making of the statements and
their contents. In other words, she took those to be the
facts. As her reasons also disclose, she rejected the
suggestion of counsel, based on the evidence of Michael in
particular, that Michelle had had a reason to fabricate.
Indeed she expressly found that "the child had no reason to
give anything but what she believed to be the true
explanation to Anita [Klassen] and Dr. McKenna." Counsel
took issue with this finding of fact, but on the basis
alone that the trial judge "made no mention" of Michael's
evidence in so finding. In light of R. v. Burns, cited
earlier, I do not think it is open to us to interfere on
that basis.

This is not to say that the question of the
admissibility of the out-of-court statements is not a
matter of law for the purpose of the appeal. It is only to
say that it is difficult to find a tenable basis, given the
findings of fact made by the trial judge in this respect,
for concluding she had erred in law in admitting the
statements.

It must also be remembered that this was an unusual
situation, inasmuch as the truthfulness and accuracy of the
statements were more amenable to challenge than is usual
with hearsay, and that the trial judge's determination of
"reliability" was confined to the context in which it was
made, namely the admissibility of the statements. Hence,
she need not have gone looking for "absolute reliability,"
and her's was but a "preliminary determination": R. v.
itha As she said, in closing, "the weight to be attached to
the statements...and their reliability," in the context of
the ultimate fact finding based upon the whole of the
evidence, "is, as with other admissible evidence, to be
argued later." Had this been a jury trial, of course, it
would have been left to the jury, appropriately instructed
in this respect, to ultimately determine the reliability of
the statements and the weight to be given them in light of
all of the evidence bearing on the truth of their contents.

Having regard for all of this, it is difficult to give
effect to the ground of appeal taking issue with the
decision to admit into evidence the two out-of-court
statements.

Moreover, to put the case for this appellant at its
highest in respect of this issue, I am of the view that,
even if the trial judge erred in law in admitting the
statements, no substantial wrong or miscarriage of justice
was occasioned thereby. It seems to me that, with or
without the statements, the verdict finding Mr. R. guilty
of sexually assaulting Michelle would necessarily have been
the same. It is not as though this verdict came to rest
alone on these statements, or was at all dependent upon
them. Had they been excluded, I do not think it would have
made any difference. In other words I am of the opinion,
having for regard for the whole of the evidence and its
assessment by the trial judge, that there is no reasonable
possibility that this verdict would have been different had
the out-of-court statements not gone in: R. v. Bevan,
[1993] 2 S.C.R. 599. Hence I would invoke s.
686(1)(b)(iii), and in the final analysis I would not give
effect to this ground of appeal.

That then brings me to the evidence of the witnesses
called by the defence. As noted earlier, Donald R.
testified on his own behalf, and Dr. Elterman, a clinical
psychologist, testified at the call of Mr. R..

Donald R.
Mr. R. testified with the assistance of a sign
interpreter. He stoutly denied ever sexually abusing the
children or hurting them. He also stated he had never seen
either Helen R. or Donald W. harm the children in any way.

In the course of his testimony, he described an
incident of "bad touching" which took place while the
children were at home--probably in 1986. Mrs. R., he said,
had gone downstairs, found the three children naked, and
discovered that Michael was "touching dirty," meaning "the
vagina and asshole." He went on to say that he, too, had
gone downstairs, seen the kids naked, and given Michael a
spanking to stop him "acting out dirty." In describing the
same incident later, he stated that he had not personally
seen the children.

Mr. R. also testified about an episode which occurred
sometime before the "bad touching" incident. He said the
rest of the family was watching television when they heard
Michael screaming from downstairs. Upon investigating, Mr.
R. found the boy, crying and breathing hard, lying
partially under the bed with his arms bound to his sides
and wearing only his pyjama bottoms: "[H]e had tied himself
around his stomach and it was red." Mr. R. said he had
been unable to get the knots undone without resort to a
knife. He had had to cut the boy free. The logistics of
Michael having bound himself so securely, and gotten
himself into this position, were effectively challenged in
cross-examination, as were other aspects of his testimony
related to the incident.

Mr. R. also gave evidence about the children's
overnight visit with him in September of 1987. On that
occasion, he said, he went looking for Michael and
Michelle, located them in the bathroom with the door
locked, and banged on the door to get the children to open
it. As he entered, Michael was pulling up his pants,
according to Mr. R., and so he accused the boy of "doing
something dirty" and then spanked Michelle for climbing on
the bathroom sink and breaking it. He later acknowledged
he had not advanced this explanation of the visit during
the subsequent police investigation.

When asked about the origins of some of the children's
testimony at trial, Mr. R. said that while the kids were
living at home they would not drink their fruit juice--they
said the tomato juice was "blood" and the apple juice was
"pee." He also stated that the kids referred to bacon and
beans mixed with hot dogs as "poop." And he said Michael
had taken to setting fires in the basement, a matter of
concern to both Mrs. R. and himself. He described an
occasion upon which Mrs. R. had held Michael's arm close to
a lighter flame to feel the heat to impress upon him the
danger of fire.

In addition to testifying about specific incidents
directly or indirectly related to the charges, Mr. R. also
testified to his relationship with Mrs. R., including some
of their more notable conflicts, and the very limited
nature of outside contact the children had had while at
home.


Dr. Michael Elterman
Dr. Elterman, a Vancouver clinical psychologist, was
held without objection to be qualified as an expert in
"child development and the characteristics of sexually
abused children." He had been in practice as a clinical
psychologist for 10 years, held teaching posts at each of
the University of British Columbia and Simon Fraser
University, and headed up the Department of Psychology at
the University Hospital. And he had had a good deal of
experience in dealing with the sexual abuse of children.

In the context, generally, of testifying to the
assessment of allegations of sexual abuse made by children,
Dr. Elterman testified (i) to those behaviours and
characteristics which in children are most often taken as
suggestive of sexual abuse; (ii) to the development and
working of memory; and (iii) to his having interviewed the
R. children shortly before the trial.

As for behaviours suggestive of sexual abuse, he spoke
of "sexualization" in particular, commenting upon its
natures and degrees, its probable causes, and its
significance. Some sexualization may be attributable to
sexually abusive experience, he observed, some to exposure
to sexuality, and some to natural sexual precociousness.
Advanced sexual knowledge, intense interest in the subject,
and sexual acting out (attempted intercourse, fondling,
sexual activity with other children) are suggestive of
sexual abuse, he said, but before coming to such a
conclusion one would want to know more of the child's
exposure to sexual activity, pornography, and so on. And
one would want to consider the possible causes of such
characteristics as distrust, low self-esteem, emotional
suppression, and so on. These are often causally connected
to events such as being separated from a parent, or
apprehended, or placed in an institution, he noted, events
which spawn protest, then despair, and ultimately some of
these other characteristics. And cross-dressing in young
boys, he said, is not necessarily suggestive of sexual
abuse--there are several explanations for it.

He said, too, that one has to have an understanding of
memory and its development. There are different kinds of
memory, depending on the onset, development, and
sophistication of language, to which memory is closely
tied. At a very young age, before language sets in,
children have "picture memories" made up of feelings and
images. Later they acquire more sophisticated memories,
associated with language development. Hence, there is
visual memory, impressed by image, and verbal memory,
impressed through language.

With that, Dr. Elterman turned to how he assesses
allegations of sexual abuse. He said that he first
inquires into how often, by whom, and in what circumstances
the child has been interviewed because of the possibility
of "contamination"--the implanting of information or ideas
by leading questions, suggestion, and the like. Then, in
hearing out the child, he listens for detail, choice of
language, consistency, signs of implanting, and so on,
toward the end of determining whether the child is actually
and accurately drawing upon memory. And he might watch,
too, for signs of confabulation and transference--the
invention of detail to fill in gaps in memory and the
transferring of blame from one person to another.

He was then given a hypothetical situation, drawn from
the circumstances of this case, and asked to comment on how
everything he had said applied to that situation, prompting
Justice Batten to remark, "Goodness, you can give the
decision in this case, and then I'll have no problems."

Dr. Elterman continued, saying that he had interviewed
each of the R. children shortly before the trial, having
"them do a few testing inventories" to "get an idea--of the
nature of their recollections." There are two types of
memories, he recalled, visual and verbal--the first is
founded, for example, on having been to a MacDonald's
restaurant and recalling what it looked like; the second is
based on having been told or learned of the subject-matter
of the recall, such as the capital or location of a
country. Having interviewed the R. children with this in
mind, he said:
And it was quite clear to me after speaking to all three of
them, that their recollections of their birth parents, and
what happened there, is what you can call verbal memory.

In other words they say it because they say that,`I know
that it happened, but I can't remember it happening'
whereas when they talk about what happened at the Klassens
they can both -- they can both say it and remember it, and
they also have visual memories. And I asked Michael whether
he has pictures in his mind, whether he has visual memories
of things that took place in his parents' home, and he said
no. So his memory of what happened is one of
information...it's something that he believes took place.
But if you ask him specifically, `Can you close your eyes
and get a picture of what, of those things happening?' he
has difficulty doing that.

He was then asked a follow up question, prompting
counsel for the Crown to object. The witness, counsel said,
was coming "dangerously close to saying whether or not you
should believe the children..." and was descending into
hearsay in testifying to the children's responses during
his interviews of them.

On hearing both counsel out, Justice Batten expressed
concerns about the witness usurping the function of the
court and testifying to his questioning of the children
without her knowing all the circumstances, including the
preface to and form of the questions which had been put to
the children. Counsel for the defence resisted that,
suggesting the witness was only being asked about his
observations with respect to "the type of memories, whether
they are specific or non-specific." Justice Batten said
she was quite prepared to accept the evidence of the
witness as to the theory of, and experience with, visual
and verbal memory, but was not prepared to have him testify
to what the children had told him they could or could not
visualize, and to what conclusions he had come to.

In the result, she upheld Crown counsel's objection,
and Dr. Elterman went on to other observations he had made
of the children and to other subjects, including the
phenomenon of ritual abuse, commenting upon its common
indicia, some of the theory surrounding it, and so on,
adding in effect that there was much more to be learned of
the subject.

The ruling in relation to the objection resulted in
the following grounds of appeal, stated in turn by Donald
R., Helen R., and Donald W., namely that the trial judge
had erred:
...in refusing to hear the expert testimony of Dr. Michael
Elterman, concerning the results of his examination of the
children complainants with respect to their memories.
...in refusing to allow evidence of a Child Psychologist as
to his conclusions regarding the ability of the child
witnesses to recollect.
...in refusing to hear the evidence of Dr. Michael Elterman
concerning the results of his examination of the early
memories of the children in their birth home.

To the extent these grounds of appeal claim Dr.
Elterman had in fact been prevented from testifying to the
"results of his examination of the children," they are
overstated, in my opinion, and cannot succeed. Dr.
Elterman interviewed the children "to get an idea of the
nature of their recollections." What more of substance
counsel for Mr. R. might have elicited from the witness
about the results of the interviews is difficult to
appreciate. Dr. Elterman testified fully to the
theoretical aspects of the matter, saying there were two
types of memory, "visual and verbal," and describing each
of them. He then said, based on his interviews of these
children, that they had only "verbal memory" in respect of
their birth home, whereas they had both "visual" and
"verbal" memory in relation to their Klassen foster home.
What more could he have said of the results, as such, of
his interviews of the children? He might have expressed
some opinion on the significance of the results, perhaps,
but that is a different matter, and I should have thought
the implications of what he had said were already
unmistakable.

To the extent the grounds of appeal suggest that Dr.
Elterman was prevented from testifying to his "conclusions"
or "opinions," based upon the results of his interviews,
counsel had a good deal of difficulty on appeal in
identifying just what it was Dr. Elterman might have said
had he been allowed to continue in this vein. A good deal
of light was shed on the law--on "usurping the function of
the court," on opinion evidence bearing on the "ultimate
issue," and on expert testimony as to "lack of credibility
in an opposing witness." But little light was shed upon
what the witness might actually have testified to. One
hardly need say this makes it very difficult to determine
whether admissible evidence was excluded, and if excluded,
to assess the consequences of that.

We were given fairly clear indications of what the
witness would not have said. Apparently he would not have
ventured the opinion, based on his interviews of the
children, that none of the accused had sexually assaulted
any of them. Nor, it seems, would he have expressed the
view the children had been untruthful in recounting for him
their experiences in their birth home or that they were not
to be believed. Nobody wanted to couch the matter in those
terms, and of course the witness had said, at least in the
case of Michael, that the boy appeared to believe what he
had said.

Indeed, according to the submission of counsel for the
appellant Mr. W., Dr. Elterman was not expected to say that
he had disbelieved the children:
Dr. Elterman was being asked to describe his observations,
not to give his conclusion on...whether or not he believed
the complainants. He was being asked whether or not, based
on the questions he was asking and the answers he was
receiving, he had formed an opinion as to the types of
memory the children had concerning their birth parents.

Counsel for Mr. W., not having called this witness,
was not in the best of positions, perhaps, to say what the
witness might or might not have gone on to say, although
his submission was consistent with what counsel for Mr. R.,
who had called the witness, had had to say at trial. In
assuring the trial judge that Dr. Elterman was not about to
usurp the function of the court, counsel for Mr. R.
explained that the witness was only being asked about his
observations with respect to "the types of memories,
whether they are specific or non-specific." But, of
course, the witness had already covered that ground in
advance of the objection.

In his submission on appeal, counsel for Mr. R. said
that Dr. Elterman's further evidence would have gone to
"the children's memory credibility, especially in light of
the children's psychological traumatized condition," adding
that the defence was entitled to adduce "expert testimony
as to the lack of credibility of the opposing party (Crown)
witness."

Counsel for the respondent Crown submitted that Dr.
Elterman seemed poised, based on his interviews of the
children, to testify to "specific conclusions about the
credibility or truthfulness of the complainants." But that
characterization of the matter was resisted.

Obviously, this lack of definition poses great
difficulty in addressing this aspect of the grounds of
appeal under consideration. Although it might be well to
say nothing of the matter, about the best one can say of
it, having regard for the submissions and for all that Dr.
Elterman had said, is that had he been permitted to
continue in this vein, he probably would have said
something along these lines, if not in these terms: That
he had come to the conclusion the children's accounts of
events in their birth home were suspect or of doubtful
reliability, not because the children were untruthful, for
they believed in what they had said, but because they
appeared to have been drawing on "verbal memory," which is
based on what has been learned, rather on "visual or
picture memory," which is grounded in experience. Short of
saying their accounts were the product of "implantation"
and wholly unreliable, and that seems unlikely, it is
difficult to know what more he might have said. That seems
unlikely for the reason counsel for Mr. R. had apparently
decided against pressing the idea of "implantation" any
further than he had done earlier. Having earlier hinted at
the prospect, he did not have Dr. Elterman testify to the
manner in which Sergeant Dueck's interviews had been
conducted. But all of this becomes increasingly
speculative.

So where does that leave the issue? With respect, I
do not think counsel got it off the ground. Had there been
something more concrete to this, I expect we would have
been informed of it. As it is, we are left to ask just
what admissible evidence, if any, was excluded? And to
what effect, having in mind the outcome of the trial? Even
if Dr. Elterman might have expressed the opinion the
accounts of children were suspect or of doubtful
reliability, because of the nature of their recollections,
he would only have been stating explicitly that which he
had already left to clear implication. It follows, that I
would not give effect to these grounds of appeal.


THE JUDGMENT AT TRIAL
In delivering judgment, Justice Batten opened with a
comment on how dependant the outcome of the case was on her
assessment of the testimony of the children, and then
turned to the testimony of the other witnesses for the
purpose, among others, of explaining the extent to which
she had found the evidence of the children confirmed by the
evidence of the others.

She began with a review of the testimony of Ms. Bunko-
Ruys and Mrs. Francis concerning the behaviour of the
children, especially their sexual-like behaviours,
recalling that Ms. Bunko-Ruys had expressed the view the
children had suffered sexual abuse and been "traumatized at
a fairly early stage in their development." Turning to the
evidence of Mrs. Francis, who had had contact with the
children much before Ms. Bunko-Ruys had, she noted that the
teacher had observed Michael's "sexual acting out" and
"sexual aggressiveness" from the time he started school in
early September 1986, while the children were still in
their birth home. She noted, too, that Mrs. Francis had
observed the sexual behaviours of Michelle, while she was
in the school, and Kathy's sexual aggressiveness when she
came. She accepted this evidence "without reservation,"
saying that Mrs. Francis had given her evidence "in a
scrupulously fair manner," and that, "She had observed the
children well. She remembered what she saw, and she
interpreted their behaviour with skill and sensitivity."

Madam Justice Batten also accepted as accurate the
evidence of Mrs. Klassen, regarding the "sexualized
behaviour" of the children early in their stay there, and
the evidence of this witness and Dr. McKenna regarding
Michelle's overnight visit with Donald R. in September of
1987. Referring to the doctor's assessment and the child's
report, Justice Batten said, "I accept the statement made
by Michelle as true."

On reviewing the evidence of Dr. Yelland, she accepted
the fact he had examined the children in June of 1990 and
had then done "a far more extensive one in May of 1991
after a more extensive history was made available to him,"
and after a good deal more had become known on the subject
of sexual abuse. She commented in detail on his findings,
although she did not expressly indicate the extent to which
she accepted his evidence, or the weight she accorded it,
but it clearly told with her when taken in conjunction with
the evidence of Drs. Santa Barbara and Elterman.

Turning to their evidence, she said she accepted their
idea of the "sexualized child" and its significance, noting
that other behaviours, such as bed wetting, separation
anxiety, and so on are less significant in determining
whether children have been sexually abuse. She added that
The evidence of these two experts was that although there
had been no case in their experience where a highly-
sexualized child had not been previously sexually
abused...a cautionary note needed to be added in the cases
where there had been extensive exposure to adult sexual
activity or pornographic material.

She then concluded this phase of her reasons with the
observation:
The medical and psychological evidence confirms, and
is consistent with, evidence from the children that they
had been sexually abused at their birth home. In the case
of Michael, obviously from some time prior to his admission
to...[Mrs. Francis'] program, and in the case of Michelle
and Kathy, prior to their apprehension and placement in the
Klassen home.
The trauma suffered by the children and the effect
that that has had on their development and behaviour is, in
the opinion of the experts, more probably caused by sexual
abuse perpetrated on them over a period of time rather than
a single incident, and by persons in close relationship
with them rather than by a stranger. This too is consistent
with the evidence of the children.

With that, she turned specifically to the assessment
of the testimony of the children, opening with the
observation she had "taken into consideration the opinion
of the experts as to the development of memory and power of
recall in children as well as my own observation of the
nature of their responses, their attention and evidence of
cooperation or lack of it when answering questions,
particularly in reply to leading questions."

Justice Batten then reviewed the gist of Michael's
testimony as it related to the charges against the three
accused, referring to what the boy had had to say in
respect of the sexual assault charges against each of his
father, his mother, and Donald W., as well as what he had
had to say in relation to the other assault charges against
his mother. As for the latter, she noted the boy had
testified, "My mother stabbed me with a knife to get blood.
My mom also lit a cigarette lighter and burnt me here on my
right hand. No one else burnt me." She went on to observe
that Michael, when testifying, was trying to be accurate
and truthful, appeared sorry for what his parents were
going through, and seemed in fear of Donald W.. Noting,
too, that Michael had also testified "to his own bad acts,"
she said "some of this evidence [was] given in what
appeared to be almost agony."

She went on to review Michelle's testimony in much the
same way, noting that the girl had appeared "very tense"
and that "her relief when asked about matters unrelated to
bad behaviour was obvious, and it was obvious that re-
living memories was painful and she had to force herself to
do so in order to answer questions." While the girl had
put up "a brave front," it was only that, for she was
"stressed-out" by the experience. She noted, too, that
Michelle had said: "So many people have done bad things to
me but the worst is my mom and dad because they didn't just
touch us, they made us do other things too, and other
people just touched us."

Turning to the testimony of Kathy, she said the girl
appeared to have learned to cope--she had avoided
confrontation in testifying and had found it difficult to
contradict statements made to her. At that, she briefly
reviewed the child's evidence as it related to the charges
against the accused.

Then, having noted that she had taken into
consideration the ages of the children in assessing their
evidence (their ages at the time of trial as well during
the time of the alleged offenses), she said this:
I find their memory of sexual abuse directly related in
what they described as bad touching of their private parts
and their recounting of those memories accurate and
credible, although some of the surrounding details as to
the particulars, particularly such as time and frequency
are uncertain and confused.

She went on to deal generally with some of the
unsatisfactory aspects of their testimony, but she made it
clear she was satisfied, first, that the children had not
come forward earlier because of fear, lack of trust, and
ignorance perhaps; second, that their disclosures had not
been elicited but had been made voluntarily (relying upon
what Mrs. Thompson and Ms. Carol Bunko-Ruys had said of
this); third, that they had been prepared for trial "in a
manner scrupulously fair to the accused," having been told
to tell the truth and admit to things they could not
remember; and finally that they harboured some
understandable misconceptions, given the environment in
their birth home, where judging from all she had seen and
heard, they were "controlled and terrorized...and
traumatized."

With that, she stated:
I cannot separate many of the beliefs that the
children testified to, and may truly believe, into neat
categories of this happened and this is a misconception.
But some of the bizarre and frightening memories revealed
in their testimony would have been difficult to accept had
they not been shown to be grounded in actual occurrences as
related by Donald R.. He confirmed that when living at his
home, the children did believe they were drinking blood and
urine and eating faeces. They did see their mother wearing
a gorilla mask. They saw her drunk. They saw her being
taken away by the police. They saw physical fights between
their parents. Their father testified that there was sexual
acting out by the children prior to their being placed in
the Klassen home which he saw or accepted as true when
reported to him by his wife. I accept evidence of these
matters testified to by Donald R. as accurate, but on the
whole I did not find him to be a credible witness judged by
even the most indulgent standard. The children, for
instance, knew Donald W. well. They sat on his knee and he
displayed even inappropriate familiarity towards them on
supervised visits. He could not have been only the very
occasional visitor represented by Donald R.. It is not
credible that upon meeting his wife's boyfriend, Donald R.
would accept an invitation to travel to Laird to spend the
night unless there was a previous closer relationship of
some kind.

Michael could not have tied himself up in the manner
represented by his father. The explanation was used to
explain his appearance and the fact he had a knife when his
wife came downstairs. Donald R. professed great shock at
observing or being told about sexual interaction between
the children, yet he never reported this problem to the
social worker or the parent aid who was there to assist
with parenting.

The children, in spite of contradictions and lack of
memory about many items, were consistent when they spoke of
the bad touching that was done to them. Painful and
shameful as these memories were to them, I am satisfied
that they did remember and did faithfully recount the bad
touching that was done to them.

I am satisfied beyond a reasonable doubt that each of
the children suffered sexual abuse from each of the three
accused. I am, however, left with a reasonable doubt, which
must be resolved in favour of the accused, as to whether
any one of them was made to touch the private parts of one
or more of the accused and whether there was sexual
intercourse in the form of penetration upon Michelle or
Kathy by Donald R. or Donald W., or upon Helen R. by
Michael. The terms "vagina" and "bum" were used by all the
children in a way that would indicate that these terms
referred to genitalia in the general way and not to the
vagina specifically.

She then delivered her verdicts:
The evidence before me proves beyond a reasonable
doubt that Donald Leo R. committed the offenses described
in each of the charges one, two, three, nine and ten. I am
left with a reasonable doubt as to the proof of the other
charges against him, and they are accordingly dismissed as
against him.
The evidence adduced proves beyond a reasonable doubt
that Helen Susan R. committed the offenses described in
charges one, two, three, eight and eleven. The balance of
the charges against her are dismissed.
Similarly, the Crown has proved beyond a reasonable
doubt that the offenses described in charges one, two and
three were committed by Donald George W.. The balance of
the charges against him are dismissed.

I must say I can find no misdirection in the reasons
for judgment, and no significant deficiencies in the way in
which Justice Batten addressed the issues, including the
central issue of the credibility of the children and their
evidence.

Counsel for Mr. R. took issue with her finding that
the out-of-court statements of Michelle were true, saying
the trial judge did not comment upon or review any of the
evidence of Mr. R. or Michael relating to the overnight
visit preceding the making of the statements. Counsel did
not say, nor do I think he could have said, that the trial
judge had failed to grasp the point or had disregarded it.
Nor was it said that the trial judge had misapprehended or
completely failed to appreciate this evidence, but only
that she did not comment upon and review it. That being
so, it seems to me this submission can go nowhere in light
of R. v. Burns.

Aside from this, however, I note that, at the outset
of her reasons for judgment, Justice Batten said she had
prepared some sixty pages of analysis of the mass of
evidence and had decided to pair it down for the purposes
of delivering judgment. While she ended up saying little in
direct explanation of why she had found the out-of-court
statements to have been true, I do not think it can be said
she overlooked or ignored the evidence of Mr. R. and
Michael bearing on the truth of the statements, including
Michael's testimony about his activity with his sisters on
the occasions the children visited their father. The better
view of the matter, in my respectful opinion, is that she
did not put much stock in this portion of the boy's
evidence, given the whole of that evidence and how it had
been elicited, combined with the evidence of Mr. R. on the
matter. I suspect his evidence was taken as adding to the
likelihood the out-of-court statements were in fact true.
Moreover, though this goes more to the reasonableness of
the verdict at issue than to error, I think it was quite
open to Justice Batten, on the whole of the evidence, to
reasonably conclude that the statements were in fact true.
And I might add that as I read the reasons for judgment,
the finding that Mr. R. had sexually assaulted Michelle was
not dependant on the out-of-court statements.

And so I can find no tenable ground of complaint with
the trial judge's assessment of the case as disclosed by
her reasons for judgement.

THE REASONABLENESS OF THE VERDICTS

As noted earlier, each of the appellants attacked the
verdicts affecting them on the basis those verdicts were
unreasonable or unsupported by the evidence, within the
contemplation of s. 686(1)(a)(i) of the Code. That section
provides in material part as follows:

686.[613] (1) On the hearing of an appeal against a
conviction...the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it
is unreasonable or cannot be supported by the evidence....

These provisions were considered and clarified by the
Supreme Court of Canada in R. v. Yebes (cited earlier),
wherein it was said at p. 186:
The function of the Court of Appeal, under s. 613(1)(a)(i)
of the Criminal Code, goes beyond merely finding that there
is evidence to support a conviction. The court must
determine on the whole of the evidence whether the verdict
is one that a properly instructed jury, acting judicially,
could reasonably have rendered. While the Court of Appeal
must not merely substitute its view for that of the jury,
in order to apply the test the court must re-examine and to
some extent reweigh and consider the effect of the
evidence. This process will be the same whether the case
is based on circumstantial or direct evidence.

The Yebes test was elaborated upon in a number of
later cases, including R. v. W.(R) and R. v. Francois
(cited at the outset of the review of the evidence) and R.
v. Burns (referred to a moment ago).

In R. v. Burns Madame Justice McLachlin, speaking for
the Court, pointed out that the review conducted on appeal
is only for the purpose of determining if the verdict at
issue could reasonably have been rendered on the basis of
the evidence adduced. She stated at 663:
Provided this threshold test is met, the court of appeal is
not to substitute its view for that of the trial judge, nor
permit doubts it may have to persuade it to order a new
trial [emphasis added].

In R. v. W.(R.), Madame Justice McLachlin, again
speaking for the Court, held the Yebes test applicable to
verdicts based on findings of credibility, adding that in
this context the test falls to employed with additional
restraint, given the nature of such findings. Since this is
of particular significance to the case at hand, the
decision in R. v. W.(R.) merits extended comment.

There the accused had been convicted of indecent
assault, gross indecency, and sexual assault against three
young girls, for whom he had some parental
responsibilities. McLachlin J. described the history of
the charges at p. 125:
The first three charges (two of indecent assault and one of
gross indecency) concerned B.W. She was between two and
four years old when the incidents occurred in 1981-82,
seven years old when the offences were reported to the
authorities, and nine years old at the time of trial.
The fourth charge (of sexual assault) concerned M.W. She
was between nine and ten at the time of the events in
question, eleven when the offences were reported, and
twelve at the time of trial.
The fifth charge (of indecent assault) concerned S.W. She
was ten years old at the time of the events in question,
fourteen at the time of reporting, and sixteen at the time
of trial.

The convictions, based on the testimony of the three girls,
related to incidents where the respondent was caring for
them. The testimony of the oldest child was consistent.
That of the younger two, however, including the child who
alleged the most serious misconduct, was inconsistent and
contradicted to some extent.

The Court of Appeal decided the guilty verdicts could
not stand, and at that, the Crown appealed to the Supreme
Court, calling upon it to decide whether the Court of
Appeal had correctly applied s. 686(1)(a)(i) and whether
the children's testimony had been treated appropriately.
Of particular concern, was the extent to which the
children's testimony could be relied on without other
evidence to confirm it, and the effect of the
inconsistencies in what the younger children had had to
say.

In dealing with the first issue, McLachlin J.
described how a court of appeal should proceed:
It is thus clear that a court of appeal, in
determining whether the trier of fact could reasonably have
reached the conclusion that the accused is guilty beyond a
reasonable doubt, must re-examine, and to some extent at
least, reweigh and consider the effect of the evidence.
The only question remaining is whether this rule applies to
verdicts based on findings of credibility. In my opinion,
it does. The test remains the same: could a jury or judge
properly instructed and acting reasonably have convicted?
That said, in applying the test the court of appeal should
show great deference to findings of credibility made at
trial. This Court has repeatedly affirmed the importance
of taking into account the special position of the trier of
fact on matters of credibility [cites omitted]. The trial
judge has the advantage, denied to the appellate court, of
seeing and hearing the evidence of witnesses. However, as
a matter of law it remains open to an appellate court to
overturn a verdict based on findings of credibility where,
after considering all the evidence and having due regard to
the advantages afforded to the trial judge, it concludes
that the verdict is unreasonable. [emphasis added]

She went on, before dealing with the question of
whether the verdict was actually unreasonable in the
circumstances, to comment on the correct approach to the
assessment of children's testimony. She noted that the
requirements for corroboration had been removed from the
Criminal Code, and that old stereotypes could not be relied
upon. With regard to inconsistencies, she referred to the
approach recommended in R. v. B.(G.) (cited earlier), where
Wilson J. had adopted the approach of Wakeling J.A. of this
Court and suggested that flexibility is needed when dealing
with the testimony of young complainants. Inconsistencies
in the testimony of children may be assessed somewhat more
generously than those in the evidence of adult witnesses.

The Supreme Court went on to allow the appeal and
restore the verdicts. In doing so, it might be noted, the
Court allowed considerable latitude in determining that the
trial judge could reasonably have rendered the impugned
verdicts.

The application of s. 686(1)(a)(i) was most recently
considered in R. v. Francois. There the verdict turned on
the credibility of the complainant. The complainant
alleged that she had been sexually assaulted on more than
one occasion by a neighbour, some ten years earlier when
she was thirteen years old. The complainant's testimony
was the only evidence at the trial. The accused did not
testify, and relied on past inconsistent statements of the
complainant along with the fact the circumstances
surrounding her recall of the incidents may have suggested
a motive to fabricate. The jury's guilty verdict was
challenged on the basis the frailties in the complainant's
evidence were such as to preclude a reasonable verdict of
guilt. The credibility of the complainant was directly in
issue in much the same manner that credibility is in issue
before this Court.

Madame Justice McLachlin (LaForest, Gonthier and
Iacobucci JJ. concurring) took the occasion to clarify the
proper approach to assessment of credibility by an
appellate court considering whether a verdict at trial was
unreasonable. She noted that assessment of credibility is
a more difficult task when it involves a challenge to the
complainant's veracity per se, suggesting particular
caution when considering, on appeal, whether or not the
complainant may have been truthful. She stated at p. 836-
837:
...In the end, the jury must decide whether, despite such
factors, it believes the witness's story, in whole or in
part. That determination turns not only upon such factors
as the assessment of the significance of any alleged
inconsistencies or motives for concoction, which may be
susceptible of reasoned review by a court of appeal, but on
the demeanour of the witness and the common sense of the
jury, which cannot be assessed by the court of appeal. The
latter domain is the `advantage' possessed by the trier of
fact, be it judge or jury, which the court of appeal does
not possess and which the court of appeal must bear in mind
in deciding whether the verdict is unreasonable: R. v.
W.(R.), supra.
In considering the reasonableness of the jury's
verdict, the court of appeal must also keep in mind the
fact that the jury may reasonably and lawfully deal with
inconsistencies and motive to concoct, in a variety of
ways. The jury may reject the witness's evidence in its
entirety. Or the jury may accept the witness's
explanations for the apparent inconsistencies and the
witness's denial that her testimony was provoked by
improper pressures or from improper motives. Finally, the
jury may accept some of the witness's evidence while
rejecting other parts of it; juries are routinely charged
that they may accept all of the evidence, some of the
evidence, or none of the evidence of each witness. It
follows that we cannot infer from the mere presence of
contradictory details or motives to concoct that the jury's
verdict is unreasonable. A verdict of guilty based on such
evidence may very well be both reasonable and lawful.

Obviously this provides clear guidance for the task at
hand, and with that, I turn to the verdicts at issue,
beginning with those against Mr. R.--finding him guilty of
sexually assaulting each of the children and of assaulting
Michelle and Kathy, causing them bodily harm.

Counsel for Mr. R., in challenging the verdicts
against his client, did so in bulk, rather than discretely,
saying all of them were unreasonable in light of the nature
of the evidence of the children. As he put it in his
factum: "(a) The nature of the children's allegations raise
serious doubts about the children's credibility; (b) the
children named many adult abusers, most of whom were in the
Klassen foster home and the birth parents home; (c) the
children gave contradictory evidence; and (d) the demeanour
of the children witnesses suggested un-reliability and
untruthfulness." In developing these points, counsel
referred to the inconsistencies and contradictions in the
testimony of the children, and especially to the bizarre
nature of some of their testimony, contending that in light
thereof none of the children and none of their evidence
could reasonably have been taken as credible.

In effect, then, the verdicts against Donald R. were
challenged on the basis the findings of credibility in
relation to the children and their evidence were
unreasonable, a challenge which falls to be addressed
chiefly along the lines expounded by Madame Justice
McLachlin speaking for the Court or the majority of the
Court in R. v. W. (R.) and R. v. Francois. That is to say,
"great deference" must be accorded the trial judge's
findings of credibility, and close attention must be paid
to the standards for assessing the evidence of children
(W.(R.)). In addition, care must be taken lest the inherent
limitations in reviewing findings of credibility be
exceeded. To the extent such findings rest on the demeanour
of a witness and the common sense of the trial judge, for
example, they are not susceptible of reasoned review, a
point made in Francois.

Having regard for this, for Justice Batten's
assessment of the credibility of the children and their
evidence, and for the confirmatory evidence of others, I am
unable to say her findings of credibility were unreasonable
in the sense no properly instructed judge or jury acting
judicially could reasonably have made such findings. I do
not know whether, had I been the trial judge, I would have
convicted Mr. R. on the entirety of the evidence. Certainly
the testimony of these children would have concerned me
deeply, but having said that, their testimony was obviously
of deep concern to Justice Batten, as well. And
remembering, as we must, that we are not merely to
substitute our view for that of the trial judge, or having
concluded that the verdicts could reasonably have been
rendered, to let doubts deflect us, I cannot accept the
proposition that we should order a new trial for Mr. R. on
the ground the verdicts against him are unreasonable within
the contemplation of s.686(1)(a) (i).

Next, I turn to the verdicts against the appellant
Mrs. R.. For the purposes of the argument made on her
behalf they were divided into two groups--those finding her
guilty of sexually assaulting each of the children, and
those finding her guilty of assaulting Michael with a
knife, and of assault causing him bodily harm.

The first were said to be unreasonable on essentially
the same basis as the verdicts against Donald R. were said
to have been so, a proposition I cannot accept for the
reasons earlier stated.

As for the second, counsel argued that if these
verdicts were grounded in the alleged incidents with the
knife and the lighter, as it appeared to him they were,
they were unreasonable and unsupported by the evidence,
because the evidence of the boy in these respects was so
improbable and unreliable and inconclusive, viewed on its
own and in conjunction with the rest of his evidence, as to
have been incapable of supporting guilty verdicts. To a
large extent, this brings considerations of credibility and
weight into play, but the question remains: Could a
properly instructed jury, acting judicially, reasonably
have found that Mrs. R. had in fact stabbed the boy in his
chest or burned him with a lighter, as he swore she had?

I find it difficult to say a jury could not have done
so in light of the whole of the evidence. According to the
evidence of Dr. Yelland, the boy had an old scar on his
chest, consistent with a puncture or stab wound, and a scar
on his right hand, consistent with a burn. In my judgment,
a jury might reasonably have accepted this evidence as
confirming the boy's testimony that he had been stabbed in
the chest and burned on the hand. And the evidence of
others in the case, especially that of Donald R., might
reasonably have been taken as tending to confirm the boy's
testimony that his mother had inflicted these injuries upon
him. Mr. R. acknowledged that Mrs. R. was given to bouts
of heavy drinking, accompanied by fits of anger and abusive
behaviour, leaving the children fearful of her. He said
that she had once broken a beer bottle and threatened to
cut or kill him with it, and more importantly, that she had
once lit a lighter and held it near enough to the boy's
hand for him to feel the heat of it to teach him a lesson
about fire. It seems to me therefore that there was
sufficient evidence, if credible, to support these
verdicts, and that a jury might reasonably have found the
core of the boy's statements that his mother had stabbed
him in the chest with a knife and burned his hand with a
lighter to have been credible.

In sum, then, I have not been persuaded to the view
the verdicts against the appellant Helen R. are
unreasonable or cannot be supported by the evidence. I
note, too, that she did not testify. We are quite entitled
to have regard for this in the context of a review for
reasonableness, though we are to make no more of it than
appropriate in light of Corbett v. The Queen, [1975] 2
S.C.R. 275.

The verdicts against the appellant Donald W. were
challenged for unreasonableness on essentially the same
basis as those against the appellant Donald R. were
challenged, namely that no judge or jury, properly
instructed and acting judicially, could reasonably have
made the findings of credibility which were made in this
case. Obviously, for reasons I earlier expressed, I am not
of that opinion, and accordingly I would not set aside the
verdicts against Mr. W. on the basis contended for. And I
note that he did not testify either.

FRESH EVIDENCE

According to Palmer v. The Queen, referred to earlier,
fresh evidence may be admitted if (i) the evidence could
not by due diligence have been obtained for the trial; (ii)
the evidence is relevant in that it bears upon a decisive
or potentially decisive issue; (iii) the evidence is
credible; and (iv) it the evidence is such that, if
believed, it could have affected the outcome of the trial.

In seeking admission of the certificate confirming the
conviction of Peter Klassen following the trial of the
appellants, counsel for Mrs. R., who brought the
application, argued that the conviction was "relevant, and
possibly determinative, in view of the expert evidence to
the effect the three R. children exhibited symptoms
consistent with having suffered sexual abuse." The
argument was developed along these lines--to quote from
counsel's factum:
The fact that the expert involvement with the children all
occurred after the children had had contact with Peter
Klassen is an important factor in assessing whether the
children's history of abuse must be blamed on their natural
parents. In that sense, the new evidence goes to the issue
of the identity of the parents as the perpetrators of the
same.

The point, I take it, is that had Peter Klassen been
known at the time of trial to have sexually assaulted the
children, while they were in the care of his daughter-in-
law Anita Klassen, their sexualized behaviours, consistent
with sexual assaults upon them, might have been attributed
to sexual assaults upon them by Peter Klassen, and not by
the appellants, or might at least have raised a reasonable
doubt about the matter.

Counsel for the Crown contended that while this
evidence might be seen to meet the first three criteria of
Palmer, it could not be seen to meet the last of them. The
evidence could not have affected the outcome of the trial
for the following reasons, according to the Crown's factum:
The evidence in this case...establishes inappropriate
sexual behaviour from the initial contact of the
complainants with the Klassen family. That inappropriate
sexual behaviour continued from the very first and grew
worse, which points to the conclusion that the complainants
were traumatized by sexual assaults before they went to the
Klassen's foster home and that the trauma continued and was
exacerbated by further assaults. There was also evidence
which established what such behaviour means. All of this
evidence is corroborative in the modern meaning of the term
in that it supports the evidence of the complainants: See
R. v. B.(G.) [cited earlier]. The fact that further sexual
assaults by others may have increased the trauma of the
victims does not lessen the impact of all the of the
evidence. The proposed "new" evidence, therefore, could not
have affected the result at trial and is not admissible.

I think the Crown is right about this. I would only
add the observation that the trial judge was aware of the
fact, first, that Peter Klassen had been charged with
sexually assaulting each of the R. children while they were
in the care of his daughter-in-law Anita Klassen and,
second, that he had earlier been convicted, on June 28,
1990, of sexually assaulting two neighbourhood girls, aged
nine and eleven, on May 1, 1990. This coincided with the
removal of the R. girls from the Klassen foster home.

It follows that I would not admit this evidence and
order a new trial in consequence.

Aside from the appeals against sentence, there remains
one more matter to deal with, and it concerns the appellant
Donald W., who applied to re-open the trial.

THE APPLICATION TO RE-OPEN

Following his conviction, while he was awaiting
sentencing, Mr. W. retained new counsel and made this
application so that he could give evidence in his own
defence. A voir dire was held, at which former counsel for
W. testified, and the application was argued by counsel for
both sides on the common footing the trial judge was
empowered, in the exercise of discretion, to reopen the
trial to this accused.

Justice Batten dismissed the application for reasons
which may be briefly summarized as follows:
1.Mr. W. was represented by experienced and able counsel
who pursued his case diligently.
2.Mr. W.'s decision not to testify was only taken after the
Crown had completed its case and the defence had had the
opportunity to assess the effect of the examination and
cross-examination of Donald R..
3.Mr. W. was not under any false illusions about his
chances of success or pressured not to testify-he agreed
with the decision not to testify on three distinct
occasions.
4.The evidence he proposed to give had already been brought
to the Court's attention through other witnesses and could
not reasonably be expected to have influenced the verdict.

In concluding, Justice Batten said this:
At all times I assume that a plea of guilty means a denial
of the offenses on the part of the accused. Although my
personal inclination may be to hear the accused, W., in
examination and cross-examination, my decision must be
[made] judicially, and I can find no basis for exercising
my discretion in favour of re-opening. The application is
accordingly dismissed.

Counsel for this appellant suggested the trial judge
erred in law in thus exercising her discretion, for she
overlooked a critical consideration: That she might have
found Mr. W. a truthful witness and might have been left
with a reasonable doubt about his guilt had she heard him
out. In my respectful opinion, were this the standard for
reopening a trial, all convicted accused, having decided
not to testify in the first instance, would have to be
given a second shot at the case.

I cannot accept that idea, and having regard for the
record relating to the application, there does not seem to
me to be any tenable basis for interfering with the
exercise by Justice Batten of her discretion in deciding
not to allow the re-opening of the case. Accordingly I
would dismiss this ground of appeal.

THE SENTENCES

I do not think it can be said that any of these
sentences were unfit. They are well within the range of
sentences being imposed in this and other jurisdictions for
offenses of this nature committed in circumstances such as
these. In my judgment, they reflect a fair and appropriate
balancing of the several considerations going to the
fitness of sentence. These children were subjected to
continued sexual and physical abuse which profoundly
affected each of them, and I can see very little in the way
of extenuating circumstances. In short, I do not think
there is any tenable basis to interfere.

It follows, then, that I would dismiss these appeals
in their entirety.

Dated at the City of Regina, in the Province of
Saskatchewan, this 10th day of May A.D. 1995.

CAMERON J.A.

I concur
GERWING J.A.


VANCISE J.A. (In Dissent)

INTRODUCTION

The appellants, Donald R., Helen R. and Donald W.,
were jointly charged with having committed sexual assault,
assault causing bodily harm and with having committed acts
of gross indecency on the three children of Donald R. and
Helen R. Given the nature of the charges and the findings
of the trial judge it is necessary to set out the
particulars of the counts in the indictment in their
entirety.

The appellants were jointly charged with having
committed sexual assault upon the three infant children,
Michael, Michelle and Kathleen, and of having committed an
act of gross indecency as follows:
1.between the 1st day of January, A.D. 1993 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit a sexual assault upon Michael London R. contrary to
the provisions of the Criminal Code;

2.between the 1st day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit a sexual assault upon Kathleen Jessica R. contrary
to the provisions of the Criminal Code;

3.between the 1st day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit a sexual assault upon Michelle Mimi R. contrary to
the provisions of the Criminal Code;

4.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit an act of gross indecency with Michael London R. by
having the said Michael London R. touch the private parts
of the accused contrary to Section 157 of the Criminal
Code;

5.between the 1st day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit an act of gross indecency with Michelle Mimi R. by
having the said Michelle Mimi R. touch the private parts of
the accused contrary to Section 157 of the Criminal Code;

6.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan that they did in committing an
assault upon Michelle Mimi R. use a weapon to wit a knife
contrary to the provisions of the Criminal Code.

Donald R. and Helen R., were charged with acts of
gross indecency and assault causing bodily harm as follows:

7.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and the
District of Laird in the Province of Saskatchewan did
commit an act of gross indecency with Kathleen Jessica R.
by having the said Kathleen Jessica R. touch the private
parts of the accused contrary to Section 157 of the
Criminal Code;

8.between the 1st day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
Michael London R. cause bodily harm to him contrary to the
provisions of the Criminal Code;

9.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
Kathleen Jessica R. cause bodily harm to her contrary to
the provisions of the Criminal Code;

10.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
Michelle Mimi R. cause bodily harm to her contrary to the
provisions of the Criminal Code.

The appellant, Helen R., was also charged with assault
while using a weapon as follows:

11.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
Michael London R. use a weapon to wit a knife, contrary to
the provisions of the Criminal Code;

12.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
Kathleen Jessica R. use a weapon to wit a knife, contrary
to the provisions of the Criminal Code;

and with incest as follows:

13.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did have sexual intercourse with
Michael London R., while knowing that the said Michael
London R. was her son, contrary to the provisions of the
Criminal Code.

The appellant, Donald R., was charged with incest as
follows:

14.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon, in the
Province of Saskatchewan did have sexual intercourse with
Kathleen Jessica R. while knowing that the said Kathleen
Jessica R. was his daughter, contrary to the provisions of
the Criminal Code;

15.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon, in the
Province of Saskatchewan did have sexual intercourse with
Michelle Mimi R., while knowing that the said Michelle Mimi
R. was his daughter, contrary to the provisions of the
Criminal Code.

They were convicted after trial by judge alone as
follows. Donald R. was convicted of the counts 1, 2, 3, 9
and 10. The trial judge had reasonable doubt about the
remaining counts with which he was charged and they were
accordingly dismissed. Helen R. was convicted of counts 1,
2, 3, 8 and 11 and the remaining charges against her were
dismissed. Donald W. was convicted of counts 1, 2 and 3
and the balance of charges against him were dismissed.

FACTS

It is sufficient at this stage to set out the factual
chronology. Details of the children's testimony and the
testimony of others relating to the specific charges will
be dealt with at length when considering the specific
grounds of appeal.

The appellants, Donald and Helen R., formerly married
to one another, communicate only through sign language.
They had three children none of whom are either deaf or
mute. Michael was born in 1979 and the twins, Michelle and
Kathleen, were born in 1982. The couple had difficulty
raising the children and the Department of Social Services
was involved at an early stage. The Department was
contacted in 1983, after one of the girls was admitted to
hospital and appeared to be suffering from malnutrition. A
parent aid worked in the home with the parents to assist
with raising the children. The mother, Helen R., had
little interest in the children. She had an alcohol
problem and spent a good deal of time outside the home.
For all intents and purposes, she had effectively withdrawn
from the marriage and, from the home, in December of 1985.
She and the appellant Donald W. currently reside together.
A supervision order was made in 1986.

The father, Donald R., was not able to care for the
children and they were removed from his care in February,
1987 and placed in a foster home with Anita Klassen. From
that point on, Helen R. and Donald W. were only permitted
supervised visits with the children. The children
continued to have unsupervised weekend visits with their
natural father, Donald R., until September of 1987. Those
visits ended when the foster mother, Anita Klassen, noted
what appeared to be blood spots on Michelle's panties after
the child returned from an unsupervised visit with Donald
R. She immediately called Mobile Family Crisis, who
instructed her to take the child to St. Paul's Hospital.
The child was later examined by Dr. McKenna, who found a
laceration along the child's labia minora. Michelle told
the foster mother and Dr. McKenna "deaf daddy spanked my
bum, he put his finger in my bum".

The accusations of sexual assault against the natural
parents and Donald W. were not made until long after this
incident and arose out of a police investigation of
allegations of sexual assault of these children by members
of the foster family. Allegations of sexual abuse were
made against Mr. and Mrs. Klassen and a number of their
relatives including Mr. Klassen's father, with the result a
number of charges were laid against Mr. Klassen, Sr. and
other members of the Klassen family. Ultimately, Mr.
Klassen, Sr. pled guilty to sexually assaulting the
children and was sentenced to four years in a federal
penitentiary. The charges against other members of the
Klassen family were apparently stayed in return for the
guilty plea of Mr. Klassen, Sr.

During the investigation, the children gave statements
about their birth parents having killed, cooked and eaten
babies, dogs and cats. They also told of being made to eat
feces and drink urine and blood. No physical or
confirmatory evidence of dead animals or dead babies was
found. All three children accused their birth parents and
Donald W. of sexual abuse. They also accused at least
twenty other adults, including their grandparents, with
having abused them sexually. No other charges were laid
against the twenty other adults, other than the appellants,
who allegedly sexually abused them.

The trial lasted some 22 days and, given the
dysfunctional state of the three infant complainants, was
conducted under extremely difficult circumstances. The
birth parents, Donald and Helen R. are deaf mutes who
communicate only through sign language which further
complicated the conduct of the trial. The taking of the
evidence from the three infant children was difficult and
time consuming, was at times bizarre and strained the
bounds of credibility. Their conduct while testifying was
at times bizarre. They tired quickly and their attention
span was limited. The three appellants were placed behind
a screen during the testimony of the three infant
complainants. The trial judge and all counsel treated the
children with extreme care and courtesy and attempted to
put them at ease when they testified. By and large the
approach worked and the children were able to testify about
their versions of the alleged offences. The trial judge
and the lawyers who dealt with the children during the
trial are to be congratulated for the sensitivity they
displayed to the children, who are clearly traumatized and
dysfunctional.

Queen's Bench Judgment

The trial judge was satisfied beyond a reasonable
doubt that each of the three children suffered sexual abuse
from each of the three accused. She stated:
The children, in spite of contradictions and lack of
memory about many items were consistent when they spoke of
the bad touching that was done to them. Painful and
shameful as these memories were to them, I am satisfied
that they did remember and did faithfully recount the bad
touching that was done to them. I am satisfied beyond a
reasonable doubt that each of the three children suffered
sexual abuse from each of the three accused. I am,
however, left with a reasonable doubt, which must be
resolved in favour of the accused, as to whether any one of
them was made to touch the private parts of one or more of
the accused, and whether there was sexual intercourse in
the form of penetration upon Michelle or Kathy by Donald R.
or Donald W., or upon Helen R. by Michael.1

She made these findings in spite of "contradiction and
lack of memory about many items...". In her opinion, in
spite of the contradictory evidence, the testimony of the
children was consistent when they spoke about the bad
touching done to them.

The appellants were sentenced as follows:

The appellant, Helen R. was sentenced to five years
concurrent one to another on counts 1, 2 and 3 and one
year, concurrent to each other and consecutive to counts 1,
2 and 3, on counts 8 and 11, for a total sentence of six
years. The appellant, Donald R. was sentenced to five
years concurrent on each of counts 1, 2 and 3 and one year,
concurrent to each other but consecutive to counts 1, 2,
and 3, on counts 9 and 10, for a total of six years. The
defendant, Donald W. was sentenced to three years
concurrent on each of counts 1, 2 and 3.

The appellants appeal both conviction and sentence.

Issues

All three appellants raised a number of grounds of
appeal which can be summarized as follows:

1.The verdict of the trial judge is unreasonable or cannot
be supported by the evidence;
2.The trial judge failed to examine the infant complainants
adequately in accordance with the requirements of s. 1 of
the Canada Evidence Act to determine whether they were
competent to testify;
3.The trial judge erred in admitting previous out-of-court
statements of Michelle R. as proof of facts contained
therein;
4.The trial judge erred in limiting the cross-examination
of an expert witness, Carol Bunko-Rys and in refusing the
defence permission to use video tapes and transcriptions of
the interview of children in cross-examination;
5.The trial judge refused to admit expert testimony of Dr.
M. Elterman, an expert concerning the development of memory
in children and the types of memory these children had
developed, a matter which went directly to the children's
credibility;
6.The trial judge erred in qualifying certain witnesses as
experts concerning the behaviour aspects of sexually abused
children;
7.The trial judge erred in failing to permit the
appellant's counsel to cross-examine the foster mother,
Mrs. Thompson about the victim's prior and inconsistent
statements;
8.The appellant, Donald W., contends the trial judge erred
in failing to open up the judgment to permit him to testify
on his own behalf.


PRELIMINARY MATTERS
Admission of Fresh Evidence on Appeal

Counsel for Helen R. applied to have fresh evidence
admitted on the appeal. Counsel relied on Palmer v. The
Queen2 and R. v. Osiowy3to adduce evidence of the
conviction of Peter Klassen, the father of the foster
mother, Anita Klassen, for sexually assaulting the three
victims while they were at the Klassen foster home. The
Crown did not oppose the application and the certificate of
conviction was therefore admitted as fresh evidence during
the hearing of the appeal. The evidence is relevant and
bears directly on the issue of whether the victims were
sexually assaulted and by whom. It is evidence which did
not exist at the time of the trial.

GROUNDS OF APPEAL
I propose to deal with issues 2 through 5 prior to
considering issue 1, i.e., whether the verdict is
unreasonable and cannot be supported by the evidence.
Given the result, it will not be necessary to deal with
issues 6, 7 and 8.

Section 1, Canada Evidence Act
Counsel for Donald W. contends the trial judge erred
by failing to adequately determine whether the infant
complainants could rationally communicate the evidence
about the offences charged. The appellant, Donald W.
questions their ability to adequately communicate the
evidence. He contends all three complainants, who were
very young at the time of the alleged offences, gave many
different versions and stories about what happened, much of
the specific allegations of wrongdoing were by rote and
they responded in identical terms to questions posed. W.
argues the trial judge failed to make the inquires
necessary to be satisfied the child witnesses could
communicate the evidence as required by s. 1(1)(b) of the
Canada Evidence Act.4

The inquiry required by s. 1 of the Canada Evidence
Act was recently described by McLachlin J. in R. v.
Marquard (D.).5 There, the appellant argued the trial
judge was obliged by s. 1(1) to test the child's ability to
perceive and interpret events and to recollect them
accurately before permitting the child to testify. The
Crown, on the other hand, submitted only the ability to
communicate is required. Madam Justice McLachlin found the
real answer was somewhere between those extremes. She
stated:
Testimonial competence comprehends: (1) the capacity
to observe (including interpretation); (2) the capacity to
recollect; and (3) the capacity to communicate: McCormick
on Evidence (4th ed. 1992), vol. 1, at pp. 242-248; Wigmore
on Evidence (Chadbourne Rev. 1979), vol. 2, at pp. 636-638.
The judge must satisfy him- or herself that the witness
possesses these capacities. Is the witness capable of
observing what was happening? Is he or she capable of
remembering what he or she observes? Can he or she
communicate what he or she remembers? The goal is not to
ensure that the evidence is credible, but only to assure
that it meets the minimum threshold of being receivable.
The enquiry is into capacity to perceive, recollect and
communicate, not whether the witness actually perceived,
recollects and can communicate about the events in
question. Generally speaking, the best gauge of capacity
is the witness' performance at the time of trial. The
procedure at common law has generally been to allow a
witness who demonstrates capacity to testify at trial to
testify. Defects in ability to perceive or recollect the
particular events at issue are left to be explored in the
course of giving the evidence, notably by cross-
examination.

I see no indication in the wording of s. 1 that
Parliament intended to revise this time-honoured process.
The phrase "communicate the evidence" indicates more than
mere verbal ability. The reference to "the evidence"
indicates the ability to testify about the matters before
the court. It is necessary to explore in a general way
whether the witness is capable of perceiving events,
remembering events and communicating events to the court.
If satisfied that this is the case, the judge may then
receive the child's evidence, upon the child's promising to
tell the truth under s. 1(3). It is not necessary to
determine in advance that the child perceived and
recollects the very events at issue in the trial as a
condition of ruling that her evidence be received. That is
not required of adult witnesses, and should not be required
for children.6 [emphasis added]

The trial judge briefly inquired of each of the
complainants whether they understood the nature of an oath.
I have set out in full the questions the trial judge asked
each of the children and their responses, prior to having
them sworn:

1. MICHELLE MIMI R., questioned by The Court:

THE COURT: Hi. Are you comfy? That's a pretty good
seat, isn't it? Michelle, how old are you?
A Ten.
THE COURT: And what grade are you in school?
A Five.
THE COURT: Grade five, that's very good. Do you
like school?
A M'hm.
THE COURT: You've been asked these questions before,
haven't you? Yeah. What I'm going to ask you really is
whether you understand what an oath is.
A M'hm.
THE COURT: You do? M'hm. And is it swearing on the
Bible?
A M'hm.
THE COURT: And promising to tell the truth?
A M'hm.
THE COURT: And do you know how important that is?
It's really serious, isn't it?
A M'hm.
THE COURT: First of all, it's serious of [sic]
you're talking to a judge, or a judge is sitting here,
because I have to hear the whole truth, don't I?
A M'hm.
THE COURT: Good. And you understand the meaning of
an oath?
A M'hm.
THE COURT: So that when you swear on the Bible you
will always tell the whole truth?
A M'hm.
THE COURT: M'hm. And what happens if you don't?
A You get punished by God.
THE COURT: M'hm. So you know that, don't you. And
so you will tell the whole truth?
A M'hm.
THE COURT: All right, I think she can be sworn in.
Is there any further questions anybody has? No? All
right.7

2. KATHLEEN JESSICA R. THOMPSON, questioned by The Court:

THE COURT: Kathy, you like chewing gum, eh?
A Candy.
THE COURT: Oh, it's candy. Well, that's good,
because candy goes away after awhile, doesn't it?
A It's gone.
THE COURT: It's gone. Oh, good. So we can hear
you. How old are you, Kathy?
A Ten.
THE COURT: And do you go to school?
A Yeah.
THE COURT: And what grade are you in?
A Grade four.
THE COURT: And do you like school?
A Yeah.
THE COURT: Good. Do you go to church?
A Yes.
THE COURT: And you know about God?
A M'hm.
THE COURT: And you know what an oath is?
A Yeah.
THE COURT: It means promising God that you will tell
the truth?
A M'hm.
THE COURT: And you know that it would be very, very
bad if you didn't tell the truth after you took an oath,
wouldn't it?
A Yeah.
THE COURT: Do you know what would happen?
A You'd get punished from the judge and from God.
THE COURT: And so you're quite ready to take an
oath?
A M'hm.
THE COURT: And promise to tell all the truth?
A Yeah.
THE COURT: All right.8

3. MICHAEL LONDON R. THOMPSON, questioned by The Court:

THE COURT: Good morning, Michael.
A Morning.
THE COURT: Do you remember me?
A Yeah.
THE COURT: Good. It's been a few days since we saw
you?
A Yeah.
THE COURT: Michael, you know all about taking an oath,
don't you?
A Yeah.
THE COURT: You've taken an oath several times?
A Yeah.
THE COURT: And what does it mean?
A It means that you're promising to tell the truth
to God and the Court.
THE COURT: And it's very serious if you break that
promise, isn't it?
A Yes.
THE COURT: You know that. Okay, Michael, I see no
reason why you shouldn't be sworn. Are there any other
questions?
MR. MIAZGA: None from me.
THE COURT: All right.9

In this case the trial judge was satisfied each of the
complainants could be sworn. She engaged each of them in
conversation, and while not asking questions beyond those
which dealt with their understanding of the taking of an
oath and the obligation to tell the truth, these
complainants had testified at the preliminary inquiry and
were very familiar with the trial process. In
circumstances like this it is worth repeating the comments
of Dickson J. (as he then was) in Regina v. Bannerman.10
He stated that a trial judge's discretion in determining a
child is competent to testify should not be the subject of
excessive second guessing by appellate courts and, unless
the determination is manifestly wrong, should not be
interfered with.

The appellant argues the trial judge failed to comply
with the obligation she had under s. 1 to determine whether
these children were competent to communicate with the
result the evidence was inadmissible. The appellants did
not challenge the competence of these complainants to
testify or their capacity to understand the effects of an
oath. In truth, it is not the ability to communicate which
is at issue here, but rather the frailty of the evidence.
The essence of the complaint is the trial judge failed to
instruct herself to be prudent in accepting the evidence of
these children in the absence of some confirmatory
evidence.

In my opinion, the trial judge discharged her
responsibility under s. 1 of the Canada Evidence Act. This
ground of appeal of appeal must therefore fail.

Admissibility of out-of-court statements made by Michelle.
Counsel for Donald R. contends the trial judge erred
in admitting a verbal out-of-court statement made by
Michelle to the foster mother, Anita Klassen, and an out-
of-court statement made to Dr. McKenna, an attending
physician, as proof of the truth of the contents of the
statements. The statement made to Anita Klassen was
allegedly made the day of the alleged incident. The child
stated, after returning from an unsupervised weekend visit
to her natural father's residence, "daddy touched me". The
second statement was made a day later when she was examined
by Dr. McKenna for the express purpose of determining
whether or not a sexual assault had occurred. She told Dr.
McKenna "my deaf daddy spanked my bum and then he put his
finger in my bum, it hurt." Michelle testified at the
trial but could not remember being examined by Dr. McKenna
or remember the statement made to Anita Klassen.

The trial judge admitted the two statements during the
trial, subject to ruling whether they were hearsay or would
be accepted as proof of their contents. At the conclusion
of the Crown's case, she made the following ruling:
I find on the basis of the evidence before me that the
admission of these two out-of-court statements alleging
sexual abuse, is reasonably necessary, and that the
evidence in regard to them bears sufficient entity of
reliability. The child, at the age of ten, Michael -- I'm
sorry, Michelle, the child at the age of ten, testified as
to numerous incidents that occurred when she was between
three and ten years of age. Her therapist testified as to
the extent of the child's traumatization. Her anxiety and
stress during the trial were obvious, as was her awareness
of the presence of her birth parents and Don W. behind the
screen. Michelle, in these circumstances, was either
unable to compel herself to recall the events in question,
or was mentally incapable of recalling those events and
giving her evidence in court. It is therefore reasonably
necessary to admit the statements in order to obtain a full
and candid account of the child's version of the
occurrence. The presence of what appeared to be blood on
the panties focused the attention of Anita Klassen to the
child's explanation, which was not an accusation by the
child. And her immediate action in calling the Mobile
Crisis Centre, and taking the child to the hospital
indicates that she noted the explanation accurately. Dr.
McKenna was meticulous in noting the child's exact words.
The child had no reason to give anything but what she
believed to be the true explanation to Anita and to Dr.
McKenna. Both statements satisfy the requirement set out
in the Kahn case, and will accordingly be admitted as proof
of the truth of the contents. The matter of the weight to
be attached to the statements as to, and their reliability
is as with all other admissible evidence, to be argued
later.11

The trial judge admitted both out-of-court statements,
stating in her judgment:
I accept the evidence of Anita Klassen and Dr. McKenna
as to the statement made by Michelle after a visit to her
father's home in September of 1987. The statement was made
to Anita Klassen within a few hours of her return on
discovery of what appeared to be bloodspots on Michelle's
panties, and to Dr. McKenna the day after. Dr. McKenna
noted in writing the words of the child: "My deaf daddy
spanked my bum, then he put his fingers in my bum, it
hurt". Dr. McKenna found a laceration along Michelle's
labia minora which she testified could have been caused by
a fingernail or any sharp or pointed object and which would
have disappeared by three weeks without any scarring. I
accept the statement made by Michelle as true.

Dr. McKenna had extensive experience with sexually-
abused children, and her evidence was that for most
children, bum means rectum. Where they go to the bathroom
for urination is the vagina, and that they will use the
terms indiscriminately for all lower private parts. It was
her experience that although prepubertal children may
intellectually know that they have a vagina and may even
know where it is, they have never used it or seen it, so
that when they say they're having intercourse, it may apply
merely the placing of the penis along the perineum and
along the thigh of the child and masturbating in that way.
The hymen would not be damaged in such a case. She found
Michelle's hymen intact.12

She accepted that the two out-of-court statements of
Michelle satisfied the criteria of reasonable necessity and
reliability.

Donald R., relying on the principles enunciated in R.
v. Khan13, contends the trial judge erred in admitting the
statements. To fully assess this contention, it is
necessary to examine not only Michelle's evidence, but the
evidence of both Dr. McKenna and Anita Klassen. This is
consistent with the approach recommended and adopted by
Doherty J.A. in Khan v. College of Physicians and Surgeons
of Ontario et al14 in deciding whether an out-of-court
statement of a child in a sexual assault case should be
admitted. In most cases, it will be necessary to hear the
child's evidence before the court can determine whether it
is reasonably necessary to admit the evidence of the out-
of-court statement. In this case the trial judge heard
Michelle's evidence and the evidence of both Anita Klassen
and Dr. McKenna, prior to ruling on the admissibility of
the out-of-court statement.

Anita Klassen testified about what happened after the
children's visit to Donald R.'s home for the weekend:

AAnd the girls went upstairs, took their clothes off,
was having a bath. I was in the kitchen, I went to do
dishes. I went back upstairs to check on them and wash
their hair, and I noticed there was some blood on
Michelle's panties.
QAnd what did that blood look like to you?
ALike blood.
QI guess maybe that was a dumb question to ask in some
ways. What -- I meant what did it look like in terms of
its colour or age?
...
QAnd what did you do when you saw these panties?
AI just asked Michelle what happened.
QAnd what did she say?
AShe said, "My daddy touched me."
QAnd was there any further conversation with her at
that time?
ANo, there wasn't.
QWhat did you do?
AI went downstairs, I talked to my husband, I phoned
Mobile Crisis, 'cause it was on a Sunday. And they told me
to take her to the St. Paul's Hospital to the doctor and
get her checked.
QNow, did you look at her private parts at that time,
when they were in the bathtub?
AYes, I did.
QAnd I understand they would obviously not be wearing
anything at that moment?
ANo, they were having -
QWhat did you see about her private parts?
ARedness.
QAnd did you see any blood there?
AI can't recall today.15

Dr. Eleanor McKenna examined Michelle the following
day. She testified:
QI understand that in connection with this type of
incident you saw Michelle R. back in 1987, is that correct?
AThat's correct.
QWhat day did you see her in 1987?
ASeptember the 22nd.
QAnd who brought her into your office?
AHer foster mother.
QDo you recall the foster mother's name?
ANot offhand, no, I'm sorry.
QAnd what was the complaint about at that particular
time, in terms of injuries?
AThe foster mother had brought her in because she was
concerned about some bleeding that she had found in the
child's panties.
QAnd did she bring any physical evidence of the
bleeding for you?
AYes, she did.
QWhat was that?
AShe brought her underpants.
QOkay, and you've kept those?
AYes, we have, on the chart.
...
QMR. MIAZGA: Based on that information, then, did you
meet Michelle R.?
AYes, I did.
QAnd can you just describe what your initial
assessment of her was?
AOkay. Michelle, as I said, was brought in because
her foster mother had found some blood on her panties. And
Michelle, herself, told me that her deaf daddy did it. She
muttered something about put his finger in her bum and it
hurt. I have her exact words in my chart, if you would
like me to refer to them.
...
QOkay. And I understand, then from what you said that
you did ask her about the bleeding that was described to
you by the foster mother?
AYes, I did.
QAnd did you make specific note of what she said to
you at that time?
AYes, I did.
QAnd would you have the exact words available today?
AYes, I do.
QCould you relate those to the Court?
A"My deaf daddy spanked my bum, then he put his
fingers in my bum. It hurt."
QOkay, and did you examine the panties that have been
marked as P-14?
...
QCan you go on, then, and describe what else you saw
as part of your examination of her genitalia?
AAt that time I didn't see any particular redness or
discharge, however what I did see was a shallow laceration,
approximately two centimetres long, along the left labia
minora.
QAnd what would that indicate to you as a
paediatrician?
AWell, a laceration is a shallow cut of any kind. It
could have been -- this area is protected. The child could
have traumatized that area, it's certainly possible had she
had a straddle injury, but when I asked her about it she
said no.
QAnd is that when she made the statement referring to
her deaf daddy?
AYes.
QIs -- what would this injury be consistent with,
then, aside from a straddle injury such as you've
mentioned?
AIt was consistent with either a fingernail scratch,
which is the usual thing, or from any type of sharp
instrumentation.1
...

The appellant, Donald R., contends the statements made
by Michelle to both Anita Klassen and Dr. E. McKenna should
not be admitted because they do not meet the requirements
of necessity and reliability.

The reception of the out-of-court statements of
children was considered by the Supreme Court of Canada in
Khan. In that case a three and one-half year old child
accompanied her mother to the family doctor where the
mother was to undergo a general physical examination and
the child was to receive a routine immunization. The child
was examined by Dr. Khan in the presence of her mother.
Dr. Khan and the child were left alone in the doctor's
private office for about five minutes while her mother
changed in an adjacent examining room. The child remained
alone in the office while the mother was examined by Dr.
Khan in the examining room. When the mother came back to
the office she noticed her daughter picking at a wet spot
on the sleeve of her track suit. Some fifteen minutes
after leaving the doctor's office the mother and child had
the following conversation:
Mrs. O So you were talking to Dr. Khan, were you? What
did he say?

T.He asked me if I wanted a candy. I said yes. And do you
know what?

Mrs. O. What?

T.He said "open your mouth". And do you know what? He put
his birdie in my mouth, shook it and peed in my mouth.

Mrs. O. Are you sure?

T. Yes.

Mrs. O.You're not lying to me, are you?

T.No. He put his birdie in my mouth. And he never did give
me candy. [Khan [1990] 2 S.C.R. 531 at p. 534]

The mother did not ask for further information. She
let the matter drop until later.

McLachlin J. adopted a flexible approach to hearsay
based on principle and the policy considerations underlying
the hearsay rule enunciated in Ares v. Venner.18 The
admissibility of hearsay evidence is determined with
reference to two general requirements: necessity and
reliability. She stated:
The first question should be whether reception of the
hearsay statement is necessary. Necessity for these
purposes must be interpreted as "reasonably necessary".
The inadmissibility of the child's evidence might be one
basis for a finding of necessity. But sound evidence based
on psychological assessments that testimony in court might
be traumatic for the child or harm the child might also
serve. There may be other examples of circumstances which
could establish the requirement of necessity.

The next question should be whether the evidence is
reliable. Many considerations such as timing, demeanour,
the personality of the child, the intelligence and
understanding of the child, and the absence of any reason
to expect fabrication in the statement may be relevant on
the issue of reliability. I would not wish to draw up a
strict list of considerations for reliability, nor to
suggest that certain categories of evidence (for example
the evidence of young children on sexual encounters) should
be always regarded as reliable. The matters relevant to
reliability will vary with the child and with the
circumstances, and are best left to the trial judge.19

Those general principles are, however, subject to ensuring
the accused's interests are safeguarded and subject always
to the weight to be accorded to such a statement.

The Supreme Court of Canada again considered the issue
in R. v. Smith,20 where McLachlin J's approach in Khan was
heralded as a "triumph of a principled analysis over a set
of ossified judicially created categories".21 The decision
signalled, per Lamer, C.J.C. "an end to the categorical
approach to the admission of hearsay evidence." Hearsay is
now admissible on a principled basis, the governing
principles being the reliability of the evidence and
necessity. He continued:
The criterion of "reliability" or, in Wigmore's
terminology, the circumstantial guarantee of
trustworthiness is a function of the circumstances under
which the statement in question was made. If a statement
sought to be adduced by way of hearsay evidence is made
under circumstances which substantially negate the
possibility that the declarant was untruthful or mistaken,
the hearsay evidence may be said to be "reliable", i.e., a
circumstantial guarantee of trustworthiness is established.
The evidence of the infant complainant in Khan was found to
be reliable on this basis.

The companion criterion of "necessity" refers to the
necessity of the hearsay evidence to prove a fact in issue.
Thus, in Khan, the infant complainant was found by the
trial judge not to be competent to testify herself. In
this sense, hearsay evidence of her statements was
necessary, in that what she said to her mother could not be
adduced through her. It was her inability to testify that
governed the situation.22

The principles outlined by McLachlin J. were discussed
and applied by Doherty J.A., for the court, in Khan v. The
College where the out-of-court statement of the child
victim in Khan was considered, this time in the context of
a disciplinary hearing before the College of Physicians and
Surgeons. (The reasons in Smith were released one week
after Khan v. The College. As a result, Doherty J.A. was
deprived of the reasons and further analysis of the Supreme
Court of Canada when writing his judgment.) The child
complainant testified in the proceedings before the
disciplinary committee of the College. She was unable to
recall details of the event which formed the subject matter
of the complaint or what she had told her mother. She was
three and one-half years old at the time of the incident
and almost eight years old at the time of the hearing. The
child could remember that Dr. Khan placed his penis in her
mouth, but almost nothing else. The disciplinary committee
admitted this statement made by the child to her mother 20
minutes after the incident.

In this case, Michelle could not remember the incident
referred to by Anita Klassen or Dr. McKenna despite
counsel's efforts to aid her. Counsel for the appellants
did not object to these attempts, or in particular, the
suggestion by Crown counsel that she had been examined by
Dr. McKenna after the discovery of the spot of blood on her
panties. She was asked whether she knew Dr. McKenna and
she said she did not remember her or remember being
examined by her.23

Thus, we have a situation where the child witness has
testified but is unable to recall any of the facts
surrounding the incident. The first issue is whether
Michelle's testifying renders the statements she made to
Anita Klassen and to Dr. McKenna inadmissible because the
element of necessity has been removed. That issue and, in
particular, the comment of McLachlin J. in Khan, that the
issue of necessity may not arise if the child testifies,
was fully considered by Doherty J.A. in Khan v. The
College. He noted that the Ontario Court of Appeal in R.
v. Collins24 had previously refused to admit the out-of-
court statement where a child had testified. In his
opinion, Collins stood for no more than the nature of the
child's evidence in that specific case and did not preclude
the admissibility of an out-of-court statement where a
child testified. In his opinion, with which I agree, the
most one can say is, ". . . the child's viva voce evidence
will `probably' render it unnecessary to receive the out-
of-court statements in `most' cases".25

The contention there be an automatic exclusion of an
out-of-court statement when the child testifies should be
rejected as it is inconsistent with the flexible principled
approach adopted in Ares v. Venner followed in Khan and
Smith. In accordance with the comments of Lamer C.J.C. in
Smith, "necessity" must be given a flexible definition
capable of encompassing diverse situations; the categories
are not closed.

In establishing necessity, the fact the child
testified is relevant to, but not determinative of, the
admissibility of the out-of-court statement. The
assessment of necessity which McLachlin J. describes as
"reasonably necessary"26
in a child sexual assault case is the need to have the
child's version of the events pertaining to the alleged
assault before the court. It may well be that the out-of-
court statement must be before the court to obtain a full
version of the facts.

Doherty J.A., in Khan v. The College, listed seven
factors which he suggests could be relevant and noted it
would be unwise to make an exhaustive list of relevant
factors. Those seven factors are:
1.The age of the child at the time of the alleged event and
at the time he or she testifies;

2.The manner in which the child gives his or her evidence,
including the extent to which it is necessary to resort to
leading questions to elicit answers from the child;

3.The demeanour of the child when he or she testifies;

4.The substance of the child's testimony, particularly as
it reflects on the coherence and completeness of the
child's description of the events in question;

5.Any professed inability by the child to recall all or
part of the relevant events;

6.Any evidence of matters which occurred between the event
and the time of the child's testimony which may reflect on
the child's ability to provide an independent and accurate
account of the events in issue;

7.Any expert evidence relevant to the child's ability at
the time he or she is required to give evidence to
comprehend, recall or narrate the events in issue.


Turning now to the application of the principles in
this case, Michelle testified but was unable to remember or
testify about the incident in question. She did not
remember the incident even when specifically directed by
Crown counsel to the events surrounding the alleged sexual
assault by her deaf father. She was specifically asked
about blood being found on her panties and about being
examined by Dr. McKenna, but was unable to recall either
fact. She was unable to recall being examined by Dr.
McKenna with the result that there was no way to test the
reliability of the statement.

The trial judge heard the evidence of Michelle and two
other complainants, Michael and Kathleen, as well as the
two out-of-court statements, before ruling on the
admissibility of the out-of-court statements made by
Michelle.

If the evidence of Michelle concerning this incident
was going to be before the court, it is clear it had to
come from someone other than the child. Michelle could
remember neither the incident nor being examined by
Dr. McKenna. The Crown contended that, if the evidence of
Anita Klassen and Dr. McKenna concerning an allegation of
sexual assault by the appellant Donald R. was not to go in,
there was no other evidence as to what happened. The Crown
relies on the fact the out-of-court statement was allegedly
made within a few hours of the incident and would be more
reliable than a statement made later. The Crown also
relies on the fact the alleged incident was at least five
years old and occurred when Michelle was approximately five
years old. Crown counsel conceded that, if the child could
testify about the incident, the Crown would not need to
rely on the out-of-court statement. The situation here is
not identical to the second Khan trial where the child
testified but could not remember all the information given
in the out of court statement. Here the child testified
but could not recall the incident.

Does this statement fall into the category of one
"necessary to the prosecutor's case" as described by Lamer
C.J.C. in Smith (See also R. v. F.(G.))27 and therefore
outside the criteria?

The question of reasonable necessity to receive an out
of court statement has been considered in R. v. Aguilar28
where the child testified and Katzman J.A., following Khan
v. The College, found the determination of whether the
statement is admissible is an ad hoc one. In Aguilar, the
child testified at trial but did not provide all of the
details contained in the out of court statement. Katzman
J.A. compared the circumstances in Aguilar to those in Khan
v. The College. He considered the age of the child at the
time of the offence, the delay between the incident and the
trial, the child's ability to recall certain events and,
the lack of expert testimony concerning whether the failure
to recall certain evidence was consistent with the expected
limitation to remember and articulate traumatic events. He
concluded, in the circumstances of that case, the criterion
of necessity had not been established.

Here, Michelle was not capable of remembering or
testifying about the event. She was four or five years old
when the alleged event took place and there was a five year
delay between the alleged event and the trial. In addition
she had been interviewed many times concerning the alleged
sexual assault and others alleged to have occurred. The
child's therapist testified as to the traumatic effect of
the trial in the investigation on the child. Michelle was
keenly aware the appellants were in the courtroom on the
other side of the screen. The child's age, the time
between the event and the trial, including the number of
times she had testified or been questioned and the
traumatism, were all cited as reasons for finding the out-
of-court statement was reasonably necessary to obtain a
"full and candid account of the child's version of the
occurrence."29 In my opinion, the criterion of reasonable
necessity was satisfied.

The second criterion is more troublesome. The trial
judge found the presence of what appeared to be blood on
Michelle's panties, the fact the foster mother called the
Mobile Family Crisis Centre and took the child to the
hospital as well as the evidence of Dr. McKenna, who
meticulously noted the comments made by Michelle, were
indices of reliability. With respect, the actions and
memory of the person to whom the statement was made are not
what is crucial. What is crucial is whether the statement
itself is trustworthy.

The criterion of reliability was described by Lamer
C.J.C. in Smith as:
The criterion of "reliability" or, in Wigmore's
terminology, the circumstantial guarantee of
trustworthiness is a function of the circumstances under
which the statement in question was made. If a statement
sought to be adduced by way of hearsay evidence is made
under circumstances which substantially negate the
possibility that the declarant was untruthful or mistaken,
the hearsay evidence may be said to be "reliable", i.e., a
circumstantial guarantee of trustworthiness is established.
The evidence of the infant complainant in Khan was found to
be reliable on this basis.30 [emphasis added]

Is there a circumstantial guarantee of
trustworthiness? When we examine the totality of the
evidence we have the evidence of Michelle that she and
Michael would lie to grown-ups regarding their sexual
activity. The trial judge was also asked to and did make a
ruling concerning an out-of-court statement made by Michael
pertaining to the same incident at the natural parents'
home. She rejected Michael's out-of-court statement which
dealt with the same incident because it did not "satisfy
the requirement of reliability, and will not, therefore be
admitted as proof of the contents thereof."31


She did not elaborate. Michael admitted to having had
sex with both his sisters, Kathleen and Michelle, in the
bathroom at his father's house on the last visit. When he
was questioned about the incident he stated:
QOkay. Now, do you know what I mean by the bad
touching?
AYes.
QAnd it's sexual stuff, okay?
AYes.
QYou tell me in your own words. I don't want to be --
I don't want anyone to say to me afterwards that you're
putting words in this boy's mouth. You tell you what you
mean by bad touching.
ASexual abuse.
QAnd when -- how long -- has that been going on in the
past between you and your sisters?
AYes.
QOkay, and I'm talking about Kathy and Michelle, okay.
AYes.
QWe're not talking about your foster sisters, okay?
Okay. Now, about how long has that been going on for? Or
had it been going on for?
AEver since the girls were three and I was five.
QOkay. So that means that just between the kids, now
we're not talking grown-ups, just between the kids --
AAll right.
Q-- there was bad touching between you and Michelle,
even happened sometimes when you lived at your birth
parents, is that right?
AUh-huh.
QNow, can you remember how it started?
ANo, I can't.
QOkay. Do you remember who did the bad touching
first, whether it would have been --
ANo.
Q-- you -- can't remember whether it was -- which of
you three?
ANo.
QOkay. And when it started, was it just fingering, or
--
AUsing the penis and the fingers.
QYou used the penis too, eh?
AYes.
QAnd this was even when you lived at your birth
parents, is that right?
AYes.
QOkay. And you didn't like to get caught for that
sort of thing?
ANo.
QOkay. Even by your birth dad, right?
ANo.
QOkay. And you did some of that in the bathroom with
the girls?
AWhat?
QDid you do any of that in the bathroom with the
girls?
AYeah.
QOkay, and you could lock the door in the bathroom, is
that right?
AYes.
QOkay. Most of that occurred at Streeb (ph), is that
the name of street?
AStreb.
QStreb, sorry. Most of it occurred there?
AYes.
QAnd it sometimes happened when you visited your dad
on Avenue C, is that right?
AYes.
QOkay.
AYes, yes.
QOkay, and he caught you there too, once, didn't he?
AWho?
QYour dad?
AWhich dad?
QBirth dad?
AYes.
QOkay, he caught you doing something in the bathroom?
AYeah.
QAnd it was with Michelle, wasn't it? Well, don't let
me -- was it with Michelle?
AI don't know.
QOkay. And when you did the bad touching with -- when
you were caught in the bathroom, what type of bad touching
was it?
ALike sexual abuse.
QYeah, was it with your finger?
AAnd penis.
QAnd in her vagina area?
AYes.
QOkay. So you remember ever hurting Michelle doing
that?
ANo.
QOkay. Can you tell when you hurt them and when you
don't hurt them?
ANo.
QOkay. And about how many times would that have
happened when you visited your dad on Avenue C?
AEvery time we visited dad.
QEvery time?
AEvery time we visited there.
QOkay. Every time you visited there, you'd touch
Michelle?
AAnd Kathy.
QOkay. Now, sometimes you'd -- would any of the girls
ever tell on you when you did that?
ASometimes.
QOkay. And sometimes you'd try to make them stop
telling on you, right?32

Michelle testified Michael hurt her in her vagina.
She stated:
AHe put his penis in my vagina and it would get all
red, and it would hurt.
QOkay. Did Michael ever put anything else in your
vagina besides his penis?
AAnd his finger.
QAnything else besides his penis or his finger?33

In addition, there is the testimony of Donald R. that
he caught Michelle and Michael in the bathroom the same day
Anita Klassen noticed the blood spots on Michelle's panties
and he had asked Michael if he had done something dirty
because he was pulling up his pants. He said on direct
examination:
QAnd what did you see?
AWell, I yelled, and then Michael pulled up his pants,
he said, "Nothing, nothing" and I gave a spanking. And I
didn't -- and I told him not to touch the razor because it
was sharp.
QSo this took place where? Which room?
AI told you, in the bathroom.
QAnd how did you know to go to the bathroom?
ABut Ralph was the one that was supposed to watch the
kids, and he just kept watching TV, and I was in the
kitchen cooking supper. And I came and that's when I saw
this all happen.
QOkay, and you came in where?
AWell, I didn't see -- I didn't see anything because
Michael pulled up his pants really quickly.
QJust tell the judge what you saw.
AWell, they were sport shorts that were on him, and
they were pulled up quickly so I didn't see anything, but I
asked Michael, 'cause he could sign. I said, "Did you do
something dirty?" He said, "No, no."
QDid you spank Michael?
ANo. I spanked Michelle. Because Michael was blaming
Michelle. I didn't spank her hard, I just gave her a, you
know, I wasn't mean, I just gave her a spank.34

He repeated what he said in cross-examination:
AI went in there, the sink was broken. You know, the
--both of them had their clothes on, the sink was broken
and I think the reason why the sink was broken because she
climbed up to try and get something out of the cabinet.
QBut both kids had all their clothes on?
AYes. Yes.
QWhy did you ask Michael if he did something dirty?
AWell, I was just asking him, "Did you do something
dirty?" and he said, "No, no." So maybe he did and he was
just, you know, keeping it quiet.
QWhy did you think he did something dirty?
AJust thought he did. I told him he better stop, you
know, acting dirty. And, you know, I said, "Did you pull
your pants down and so [sic] something dirty?" "No." And
then I looked at the sink and here it was, you know,
busted. And Ralph and I tried to fix it.
QDid Michael do anything that made you think that he
had done something dirty in the bathroom that day?
AI don't know, you know, maybe he was horny, I don't
know. Maybe he learned it from school.
QBut you didn't see him do anything, you just -- you
just thought he might have done something?
ANo, nothing. I just asked him. I said, "Michael,
did you do something -- do something dirty?" and he just,
"No, no." And maybe the two of them were lying.
QDid you ask Michelle if something happened?34

In addition there is evidence the three children lied
to adults about their sexual activities. For example,
Michael testified that:
QOkay. And did you ever make up a lie to them after
you were caught?
ANo. I mean, yeah.
QOkay. And that's what I wanted, what I meant -- what
sort of -- what sort of lie did you tell when you were
caught?
AThat we never touched each other, and we just were
faking it.
QOkay. And did Michelle and Kathy go along with that
lie, did they tell that too?
AYeah.
QOkay, so did you three talk about what sort of lie
you would tell?
ANo. I just told the lie and they agreed with it.
QOkay, so you told the lie right in front of them, did
you?
AYeah, yeah, yeah.
QAnd did you ever threaten them if they told on you?
AYeah.
QOkay, give me an example of that.
AI'd say, "If you tell, I'll kill you with -- I'll
strangle you with ropes."
QOkay. And did you -- could you tell whether your
sisters would -- were a [sic] scared of you?
ANo, they just said, "Okay, then I won't tell on you."

Michelle also testified that:
QMR. KERGOAT: That's a hard question, isn't it?
AM'hm.
QOkay, maybe I'll make it a little easier. What did
Michael do?
APut his fingers in her.
QAnd can you tell us where that happened and about
what time of day, just --
ANo.
QThe judge hasn't heard any of this before, that's why
I have to ask it again.
AIn the playhouse.
QIn the playhouse?
AInside.
QAnd just go into the details of what he did.
ABrought her up -- it's like there's a
(unintelligible) and there's a ladder that goes upstairs.
And there's a big floor upstairs and a whole bunch of rugs
and stuff, and he put his penis inside.
QOkay. And you saw that?
AM'hm.
QOkay. And did you help hold her down, too, to help
Michael out?
AM'hm.
QOkay. And Kathy was fighting?
AM'hm.
QAnd then, after that, did Michael threaten you?
AM'hm.
QOkay, tell the judge what he said.
ADon't tell, okay, 'cause I don't want to get in
trouble.
QOkay. And did he say anything would happen to you if
you did tell?
AM'hm.
QOkay, tell the judge that. You can tell the judge
that.
AHe said that he wouldn't touch me -- he wouldn't --
he'd get the -- get someone to hold me down and then he'd
touch me --
THE COURT: I'm sorry, I can't hear you. Could you
try speak just a little closer to the microphone?
MR. MIAZGA: (inaudible)
THE COURT: What did Michael say to you?
AUm, if he -- if I told on him, he would touch me and
he'd get someone to hold me down.
QMR. KERGOAT: And anything else, Michelle?
A Yeah.
QGo ahead.
ABut it's kind of scary to say.
QWell, we hear a lot of things here.
AHe said he'd kill me.
QHe did? Did you believe him?
AM'hm.
QDid he tell you to make up any stories at that time?
AYeah.
QAnd which story did he tell you to make up?
AJust telled me to say, just tells me to say, "Oh, we
were just playing in the playhouse together" or something
like that.
QOkay. And did he tell you to say anything else to
Lyle and Marilyn?
ASometimes he'd say, well, we were just cleaning the
playhouse, 'cause we clean the playhouse about every month.
We put the rugs back in place and stuff.
QOkay. And did he tell you to talk about anything
else?
ANo.35

Michelle's response about her birth father abusing her
sexually is as consistent with her desire to protect
Michael and to deflect attention away from their sexual
activities as it is with having been sexually assaulted by
Donald R. When one couples this with the trial judge's
finding that Michael's out-of-court statement surrounding
the same incident did not satisfy the criterion of
reliability, it is difficult to reconcile how she could
find one reliable and the other not. Lamer C.J.C. in
Smith, stated he engaged in speculation about the reason
for an out-of-court statement simply to show the statement
was not one that provided the circumstantial guarantee of
trustworthiness that would justify the admission of its
contents by way of hearsay. Similar speculation in this
case yields the same result. I am far less convinced than
the trial judge on the degree of reliability of the
statement given the children's propensity to lie and
exaggerate, a fact which, I might add, was also noted by
the trial judge (see p. 2960). I conclude that the
statements made to Anita Klassen and to Dr. McKenna by
Michelle do not satisfy the reliability criterion set out
in Khan and Smith.

Exclusion of Expert Testimony of Dr. Elterman
The appellant, Donald R., called Dr. Elterman, a
psychologist qualified to give evidence in the "area of
child development and characteristics of child abuse." Dr.
Elterman gave general evidence on the conduct usually
manifested by children who have been sexually abused. He
identified conduct which, while not conclusive in itself,
could lead one to conclude a child had suffered from sexual
abuse. In addition, he testified on the development of
memory in young children and on the type of memory children
develop as they mature. Dealing with the type of memory
individuals have he stated:
... if I said to you, "I want you to think of a restaurant
you've been to, say, a MacDonald's restaurant, and tell me
what that looks like", then you would be able to do that,
because you had been there and you would have a memory of
that. If I told you to tell me about, say, what the
capital of a country is, or whether a country is in a
certain place, then that would be, that would be
information, it would be verbal memory, it would not be
visual memory.36

Dr. Elterman conducted interviews with each child for
the purposes of identifying, among other things, what type
of memory they possessed at critical times in their
development. Each interview lasted approximately forty-
five minutes. He described his testing in these terms:
And so the way that I would describe this to them is to
say, "When you've been somewhere and something has happened
to you, you have pictures in your mind that you can call
upon, and if you would close your eyes you could think of
it, and visualize that particular picture". And it was
quite clear to me after speaking to all three of them that
their recollections of their birth parents, and what
happened there, is what you can call verbal memory. In
other words they say it because they say that, "I know that
it happened, but I can't remember it happening", whereas
when they talk about what happened at the Klassen's they
can both -- they can both say it and remember it, and they
also have visual memories. And I asked Michael whether he
has pictures in his mind, whether he has visual memories of
things that took place in his parents' home, and he said
no. So his memory of what happened is one of information.
It's at the information level, it's something that he
believes took place. But if you ask him specifically, "Can
you close your eyes and get a picture of what, of those
things happening?" he has difficulty doing that.37

At this point, Crown counsel objected to the
questioning. Crown Counsel stated:
It strikes me that this evidence comes dangerously close to
him saying whether or not you should believe the children,
which, of course, he's not entitled to do.38

The essence of the objection was that Dr. Elterman was
not entitled to describe his findings concerning the type
of memory possessed by these children because his finding
of the type of memory possessed by the children would
somehow impinge on the trial judge's function to determine
the credibility of the witnesses. The appellant's counsel
contended the results of the examination of the children
were both relevant and admissible and that such examination
did not interfere with the right of the trial judge to
determine the ultimate issue - the credibility of the
complainants. The trial judge stated:
But this thing goes to the very crux of this case, goes to
the very matter that I have to decide. Whether these
children remember.39

She continued:
The law of evidence in regard to these matters is that an
expert witness cannot usurp the functions of the Court.
And in addition to that, it isn't really helpful to bring
in evidence of actual questions and answers, because I
don't know all the circumstances. I don't know what
preceded them, I don't know what form they were put in, I
don't know the circumstances.40

She concluded:
No, I'm quite prepared to accept the evidence as to the
theory, as to the experience that -- the difference between
verbal memory and picture memory, but it's different to go
on from there and say that he has asked the children
questions as to what they could see, or what they couldn't
see, and that he has reached a conclusion from that, in
this specific case.41

Thus, it would appear the trial judge was of the
opinion that any evidence of the actual testing of the
children with the objective of determining what type of
memory they possessed at the critical time, or the extent
of their visual or verbal memory, was not admissible. With
respect, in my opinion the trial judge erred in refusing to
permit Donald R.'s counsel to introduce such evidence.
There is a difference between the expert deciding the issue
of credibility and the expert providing an evidentiary
base, based on his or her expertise, which the trial judge
can use to determine credibility.

Professor A. Mewett in Editorial-Credibility and
Consistency set out the approach to be followed in similar
circumstances:
The relevance of his testimony is to assist no more the
jury in determining whether there is an explanation for
what might otherwise be regarded as conduct that is
inconsistent with that of a truthful witness. It does, of
course, bolster the credibility of that witness, but it is
evidence of how certain people react to certain
experiences. Its relevance lies not in testimony that the
prior witness is telling the truth but in testimony as to
human behaviour.42

This approach, which recognizes that certain aspects
of human behaviour which are important to a judge or jury's
assessment of credibility, but which are necessary to
determine the ultimate issue, was approved by the Supreme
Court of Canada in Marquard.

In Marquard McLachlin J. reiterated it is "a
fundamental axiom of our trial process that the ultimate
conclusion as to the credibility or truthfulness of a
particular witness is for the trier of fact, and is not the
proper subject of expert opinion".43 Evidence adduced
solely to bolster a witness's credibility is not
admissible. McLachlin J. stated:
Expert evidence has been properly led to explain the
reasons why young victims of sexual abuse often do not
complain immediately. Such evidence is helpful; indeed it
may be essential to a just verdict.

For this reason, there is a growing consensus that
while expert evidence on the ultimate credibility of a
witness is not admissible, expert evidence on human conduct
and the psychological and physical factors which may lead
to certain behaviour relevant to credibility, is
admissible, provided the testimony goes beyond the ordinary
experience of the trier of fact.44

The issue was again considered in R. v. Burns (R.H.)45
where a psychiatrist testified about some symptoms of
sexually abused children. McLachlin J. speaking for the
Court, stated:
The general rule is that expert evidence is admissible
to furnish the court with scientific information which is
likely to be outside the experience and knowledge of the
judge and jury: R. v. Marquard (D.), [1993] 4 S.C.R. 223
at p. 243 (per McLachlin J.); R. v. BÇland, [1987] 2 S.C.R.
398, at p. 415 (per McIntyre J.); R. v. Abbey, [1982] 2
S.C.R. 24, at p. 42 (per Dickson J.). The use of experts
to explain human behaviour may fall within this rule. The
behaviour of a person who has been systematically abused is
one example of a matter on which experts may assist. This
use of expert evidence was approved by this Court in R. v.
Lavallee, [1990] 1 S.C.R. 852, where expert evidence of the
reactions and behaviour of a woman who had been repeatedly
battered by her companion was admitted: see Wilson J.'s
reasons at pp. 870-72.46 [emphasis added][citations
omitted].

Based on his work with the complainant, the psychiatrist
formed the opinion that the complainant had been sexually
abused and testified to that effect.

McLachlin J. concluded:
The respondent does not argue that psychiatric
evidence bearing on a witness' behaviour is for that reason
inadmissible. His objection is that "the opinion of Dr.
Maddess went to the very root of the issue before the
learned trial judge" and that "allowing that opinion
usurped the function of the trial judge": the so-called
"ultimate issue rule". However, the jurisprudence does not
support such a strict application of this rule. While care
must be taken to ensure that the judge or jury, and not the
expert, makes the final decisions on all issues in the
case, it has long been accepted that expert evidence on
matters of fact should not be excluded simply because it
suggests answers to issues which are at the core of the
dispute before the court: R. v. Graat, [1982] 2 S.C.R. 819.
See also Khan v. College of Physicians and Surgeons (Ont.)
(1992), 9 O.R. (3d) 641 (C.A.) at p. 666 (per Doherty,
J.A.).47

In the case at hand, the appellants sought to
introduce evidence of human development. It is evidence
concerning the type of memory human beings possess and the
psychological assessment of the type of memories the
complainants possessed concerning their birth parents'
home. The purpose of Dr. Elterman's evidence was not to
supplant the function of the trial judge to determine
credibility, but rather to give the trial judge information
beyond a lay person's capacity, to assist her to determine
the ultimate issue credibility. Dr. Elterman was not
called to testify whether the witnesses were telling the
truth or whether he believed their testimony. He was
called to explain the difference between visual and verbal
memory and to give his opinion as to what type of memory
the children possessed at a particular stage of their
development. It remained for the trial judge to decide
what impact that evidence had on the credibility of the
witnesses.

In my opinion, there is no difference in the type of
evidence the appellant sought to introduce and evidence of
a doctor concerning the results of a medical examination.
For example, the results of an examination of the eyesight
of a witness' ability to see and identify objects at a
distance. If a witness testified to having seen the
accused at two hundred yards, surely the results of a
medical examination by a qualified ophthalmologist that the
witness suffered from a particular disease which made it
impossible for him to see an object clearly at more than
fifty yards, would be both relevant and admissible. It
would be admissible, not to determine whether or not the
ophthalmologist believed the witness, but rather to
establish the witness' ability to see. It is evidence of
human condition or frailty, not evidence of the truth or
falsity of the witnesses' testimony. There is no
difference, in my opinion, between that evidence and
evidence pertaining to the type of memory possessed by a
witness, and therefore, the ability of the witness to
remember or not to remember specific instances. It remains
for the trial judge to determine whether or not the witness
is credible. Here, while the evidence would have a bearing
on the ultimate decision, it should not be excluded because
it suggests answers to issues which are at the core of the
matter before the Court.

In my opinion, the trial judge erred in failing to
permit the appellant to adduce the evidence on this issue.
This evidence was crucial to a proper assessment of the
evidence of these three infant complainants. It bears
directly on the credibility of the three infant
complainants.

Use of Video Taped Interviews in Cross-Examining of Carol
Bunko-Rys
Donald R. contends the trial judge erred in refusing
to permit the defendants to use certain video-taped
evidence during the cross-examination of Carol Bunko-Rys, a
counsellor and therapist to the children, to refresh her
memory. Ms. Carol Bunko-Rys testified about the effects of
suggesting answers to child witnesses and had been
qualified as an expert on child sexual behaviour. She was
unable to remember certain types of questions and
disclosures made by Michael, including the number of people
who had sexually abused him, and was unable to recall the
sexual behaviour involved.

The appellant sought to use the video tapes of the
interviews, at which she was present, to assist her in
replying to their questions. They contend the trial judge
erred in refusing to permit the defendants to cross-examine
her on the interviewing techniques used by the
investigating officer on the complainants and to use the
tapes and transcripts of such interviews to refresh her
memory in that regard. While no questions were put to Ms.
Carol Bunko-Rys about her presence or participation in the
interviews of the children, it is clear she attended the
interviews of all the children conducted by Corporal Brian
Dueck. In response to a question concerning who was
present, he testified:
AMyself, the children, Carol Bunko was also present,
Carol Bunko-Rys, the therapist.48

And further:
QOkay. And what about the therapist, did she also
take the same approach?
AYou'd have to ask her. I'm not sure.
QNo, in what you saw of her dealings with the
children?
AShe listened to what they were telling her, yeah.
QDid she, at any time, indicate to them that things
were getting a bit off the wall?
AI'm not sure if she did. I don't recall that, no.
QYou don't recall her ever doing that?
ANo.49

While the arguments put to the trial judge on this
issue were unfocused and did not clearly express the
precise purpose for the cross-examination and the necessity
of the witness to refer to the tapes and transcripts to
refresh her memory, it appears the defendants wished to do
the following:
1.Cross-examine Carol Bunko-Rys on whether the children had
given evidence voluntarily or whether it had been elicited
after long and persistent questioning and coaching of the
witnesses;
2.In those instances where the witness could not remember
either the questioning or the kind of questioning, they
proposed to have her review the transcripts of the
questioning of the children at which she was present and in
which she participated;
3.To discredit the children's evidence through cross-
examination in ruling the video tapes or transcripts could
not be used to refresh Ms. Carol Bunko-Rys memory, the
trial judge stated:
As I understand the problem, the use of the transcript of
the video is suggested for, first of all, to refresh the
memory of the witness, but obviously it's not her memo,
they're not her notes, they are nothing that she has
certified as being true, and they're not in regard to
statements made by her.

She continued:
Secondly, the use to discredit the credibility of another
witness, I don't think is valid in this case because
already through an attempt to be very fair to the accused,
I have allowed the use of the transcript in this manner in
cross-examination of the complainants. Thirdly, if it's to
be used to prove the statement by another witness to show
that there was coaching or manipulation, that kind of
evidence should be obtained from cross-examination, but as
a collateral issue you cannot go further to contradict
whatever the witness says in that case. And if it is, as I
suspect, really questions as to the procedure in eliciting
declarations, to show that there was some sort of influence
on the witnesses, I think those questions and answers
should be put to the people who were -- who received those
declarations, and they should be cross-examined, but not
with reference to the transcript itself.50

The trial judge erred in ruling a witness is limited
to reviewing his or her own statement for the purpose of
refreshing memory. There is no requirement that the
material used to refresh the memory of the witness be
restricted to the witness's statement alone. The witness
may be referred to a "writing" regarding events or matters
observed or heard by the witness. Sopinka, Lederman and
Bryant in The Law of Evidence in Canada state:
Some more recent cases have considered the question of
whether a record made by means other than writing can be
used to refresh memory. In R. v. Mills51, Winn J. allowed
a police officer, who had overheard statements made by the
two accused confined in separate cells to refresh his
memory from a tape recording which had been placed in the
corridor, and on which the accused's statements were
recorded. The use of the tape was supported on the basis
that the recording device merely took the place of a pen or
pencil, and, alternatively, that the machine was set by the
policeman to perform the function of making the record, and
its accuracy was verified by the policeman while the
statements by the accused were fresh in his memory.52

Similarly, J.D. Ewart in his text states:
In Canada, at present, there appears to be no specific
requirement that material used to refresh a witness's
memory be confined to his statement alone. There seems no
reason why documents not necessarily made by the witness,
leading questions in pre-trial interview, or physical
exhibits could not be utilized by revive the memory of a
witness. However, it would obviously be improper to use
the statement or testimony of another witness to `coach' a
witness with respect to his testimony.

It is also noteworthy that there appears to be no
requirement that a witness's own writings, used to refresh
his memory prior to trial, must have been made
contemporaneously with the event. It is the accepted
practice that the witness be given a copy of his evidence
at the preliminary inquiry or earlier proceeding, in order
to refresh his memory prior to trial.53

The Crown contends the defence failed to lay a proper
foundation for the cross-examination of Ms. Carol Bunko-
Rys. For example, she was not asked if she participated in
the interviews, or the extent of such participation. As a
result, the Crown contends the trial judge was correct in
refusing to permit counsel to use the video tapes to
contradict the witness or to elicit opinions concerning the
interview process. In my opinion, reference to the tapes
or the transcript of the video tapes was for the purpose of
determining an issue which is not collateral, but rather
the main issue the credibility of the complainants. It
is not unlike R. v. McNabb,54 where the court found
rebuttal evidence of the accused concerning his financial
condition relevant to the determination of a primary issue,
that is, the credibility of the accused. It was not
collateral in the sense referred to in the authorities.
The stated purpose of the cross-examination in this case
was to show the evidence of the complainants had been
elicited by the investigators after suggestions were made
to them about what happened, and as a result, the evidence
was not credible. The intended cross-examination was
relevant to the truthfulness of the allegations of a
central issue before the court.

The Crown also argues the appellants suffered no
prejudice as a result of the ruling because they could have
cross-examined the investigator, Corporal Brian Dueck, or
could have had the video tapes examined by Dr. Elterman, an
expert in these matters. That the defence chose not to do
either does not take away from the fact they were prevented
from cross-examining Ms. Bunko-Rys, on a matter vital to
the determination of the guilt or innocence of the
appellants. It is difficult to theorize or determine
whether the trial judge's ruling affected the trial or
whether such ruling caused actual prejudice to the
appellants. In my opinion, the trial judge erred in
failing to permit the appellants to use the transcript and
video tapes of the interviews of the children to refresh
the memory of Carol Bunko-Rys.

Unreasonable Verdict
All the appellants contend the verdict of the trial
judge is unreasonable and unsupported by the evidence.
They contend no properly instructed jury or judge acting
reasonably could have convicted the appellants. It is
their contention that the evidence is so contradictory,
confused and bizarre, it cannot, in law, be taken as proof
beyond a reasonable doubt of the charges against all the
appellants. They also contend the trial judge erred in law
in finding the testimony of the three complainants was
credible and, when considered with the errors made by the
trial judge, the verdict was unreasonable.

The standard of appellate review pursuant to s.
686(1)(a)(i) of the Code or the reasonableness of a
decision was articulated in R. v. Yebes55 where McIntyre J.
speaking for the court stated:
The function of the Court of Appeal, under s. 613(1)(a)(i)
of the Criminal Code, goes beyond merely finding that there
is evidence to support a conviction. The Court must
determine on the whole of the evidence whether the verdict
is one that a properly instructed jury, acting judicially,
could reasonably have rendered. While the Court of Appeal
must not merely substitute its view for that of the jury,
in order to apply the test the Court must re-examine and to
some extent reweigh and consider the effect of the
evidence. This process will be the same whether the case
is based on circumstantial or direct evidence.56

Sopinka J., in R. v. S.(P.L.),57 speaking for himself,
Lamer, C.J.C. and LaForest and McLachlin JJ., adopted the
test in R v. Yebes (supra) and emphasized that a court of
appeal can properly engage in a review the facts, pursuant
to s. 686(1)(a)(i):
In an appeal founded on s. 686(1)(a)(i) the court is
engaged in a review of the facts. The role of the Court of
Appeal is to determine whether on the facts that were
before the trier of fact a jury properly instructed and
acting reasonably could convict. The court reviews the
evidence that was before the trier of fact and after re-
examining and, to some extent, reweighing the evidence,
determines whether it meets the test. See R. v. Yebes,
[1987] 2 S.C.R. 18.58

McLachlin J., for the court, made it clear in R. v.
W.(R.)59 that the obligation of a court of appeal to
reweigh and consider the effect of the evidence applies
equally to verdicts based on findings of credibility. She
noted however that, while the test remains the same:
...in applying the test the court of appeal should show
great deference to findings of credibility made at trial.
This Court has repeatedly affirmed the importance of taking
into account the special position of the trier of fact on
matters of credibility: W. v. The King, [1947] S.C.R. 268,
at p. 272; R. v. M. (S.H.), [1989] 2 S.C.R. 446, at pp.
465-66. The trial judge has the advantage, denied to the
appellate court, of seeing and hearing the evidence of
witnesses. However, as a matter of law it remains open to
an appellate court to overturn a verdict based on findings
of credibility where, after considering all the evidence
and having due regard to the advantages afforded to the
trial judge, it concludes that the verdict is
unreasonable.60 [emphasis added]

McLachlin J. put it this way in Burns, supra:
In proceeding under s. 686(1)(a)(i), the court of
appeal is entitled to review the evidence, re-examining it
and re-weighing it, but only for the purpose of determining
if it is reasonably capable of supporting the trial judge's
conclusion; that is, determining whether the trier of fact
could reasonably have reached the conclusion it did on the
evidence before it: R. v. Yebes, R. v. W. Provided this
threshold test is met, the court of appeal is not to
substitute its view for that of the trial judge, nor permit
doubts it may have to persuade it to order a new trial.
[citations omitted].61

Thus, this Court has not only the right, but the
obligation, to reweigh the evidence to determine whether
the verdict is one which a judge, properly instructed,
could have reasonably made, subject to the caveat that,
when dealing with matters of credibility, one must take
into account the special advantage of the trial judge.
This is especially true when dealing with the evidence of
child witnesses. In R. v. W.(R.), supra, McLachlin J.,
after referring to the comments of Wilson J. in R. v.
B.(G.)62 concerning a commonsense approach to children's
evidence, stated:
It is neither desirable nor possible to state hard and
fast rules as to when a witness's evidence should be
assessed by reference to "adult" or "child" standards to
do so would be to create anew stereotypes potentially as
rigid and unjust as those which the recent developments in
the law's approach to children's evidence have been
designed to dispel. Every person giving testimony in
court, of whatever age, is an individual, whose credibility
and evidence must be assessed by reference to criteria
appropriate to her mental development, understanding and
ability to communicate. But I would add this. In general,
where an adult is testifying as to events which occurred
when she was a child, her credibility should be assessed
according to criteria applicable to her as an adult
witness. Yet with regard to her evidence pertaining to
events which occurred in childhood, the presence of
inconsistencies, particularly as to peripheral matters such
as time and location, should be considered in the context
of the age of the witness at the time of the events to
which she is testifying.63

It is pursuant to these principles that we must
examine and reweigh the evidence to determine whether or
not the verdict is unreasonable.

I start with, and cannot ignore, the heartfelt
comments of the trial judge concerning the trauma, both
physical and psychological, which have been inflicted on
these children and her wish these children will "be left to
heal in peace." It is obvious she was profoundly affected
by the evidence of the children. It is clear from the
evidence these children have been sexually abused what is
less than clear is whether they were sexually abused by the
appellants. We do know Mr. Klassen Sr. pled guilty to
having sexually assaulted these children. The fundamental
question on this appeal is whether these appellants have
sexually assaulted the children.

The task of this Court is made more difficult by the
fact the trial judge made no specific findings of sexual
abuse and made no specific findings in relation to the
accusations of sexual assault upon Kathleen and Michelle R.
by Donald R. or the accusations of assault and assault with
a weapon committed by Helen R. on Michael R. The trial
judge found beyond a reasonable doubt that "each of the
three children suffered sexual abuse from each of the three
accused." (page 2964) This general finding is preceded by
her comment that "I cannot separate many of the beliefs . .
. into neat categories of how this happened and this is a
misconception." (page 2962) This statement is followed by
a further finding that she was left with a reasonable doubt
"as to whether any one of them [the children] was made to
touch the private parts of one or more of the accused and
whether there was sexual intercourse in the form of
penetration upon Michelle or Kathy by Donald R. or Donald
W. or upon Helen R. by Michael." (page 2964)

It is evident the credibility of the complainants is
critical to the reweighing and examination of the evidence
to determine whether the verdict is unreasonable. The
trial judge noted the surrounding details as to the
particulars, such as time and frequency, are uncertain and
confused. The appellants do not, however, contend the
verdict is unreasonable because the complainants were
unable to recount precise details, but rather the verdict
was unreasonable because the complainants' testimony was
bizarre, contradictory and riddled with admitted falsehoods
and, when considered in its totality, not credible.

It is convenient to examine the testimony in four
categories to determine whether the verdicts were
unreasonable:

1. the sufficiency of evidence pertaining to the charges of
assault and assault with a weapon by Helen R. on Michael;

2. the sufficiency of the evidence of the assaults by Don
R. on Michelle and Kathleen;

3. the sufficiency of the evidence of the commission of
sexual assault generally, given the findings on the charges
of gross indecency;
4. the credibility of the testimony of the children.

In addition one must consider the effect of the errors
in law made by the trial judge.

1. Assault with a weapon by Helen R. on Michael
Michael's testimony was:
My mother stabbed me with a knife to get blood. My mom lit
a lighter and burnt me here on my right hand. No one else
burnt me.

The trial judge states she accepts that, in giving
this testimony, Michael was trying to be accurate and
truthful. But when one examines the evidence of Michael on
these charges there is only one reference to stabbing.
Michael testified his mother tied him to a post and then
stabbed him to get blood. After she got a few drops of
blood she let him go and later tried to tie him up again.
(page 160). Similarly, on the accusation he was burned by
Helen R., the trial judge quoted Michael as saying "My mom
lit a lighter and burnt me here on my right hand. No one
else burnt me." (page 2955). It is not clear from the
judgment whether or not the trial judge based the
conviction for assault on the burning with the lighter, but
assuming she did, Michael's evidence on this point is
contradictory and confusing. He testified he had been
burned on several occasions, including being burned by his
foster mother, Anita Klassen (pages 187 and 188). He also
testified at the preliminary inquiry he had been burned by
his Grandpa Vogen. At trial however, he claimed his
testimony at the preliminary inquiry was false and that he
was "daydreaming" (page 182). Anita Klassen and Lyle
Thompson testified (pages 1280 and 1751) Michael had a
penchant for playing with knives and with fire. Michael
testified he liked knives (page 194) and the children cut
each other (page 192).

Thus, while the trial judge stated the evidence proved
beyond a reasonable doubt Helen R. committed the offences
of assault as charged in counts 8 and 11, there is nothing
in the judgment to indicate which evidence she relied on in
coming to that conclusion, other than her general comments
about the children's evidence. There is nothing in the
judgment to indicate the contrary position, that he had
been burned by someone else. Although a failure to give
reasons is not an error in law in and of itself, incomplete
reasons may constitute reversible error if there is an
indication the trial judge did not deal with or appreciate
relevant evidence. See Macdonald v. R.;64 Harper v. R.;65
R. v. Dupuis.66 In Harper, Estey J. for the majority of
the Supreme Court of Canada stated:
Where the record, including the reasons for judgment,
discloses a lack of appreciation of relevant evidence and
more particularly the complete disregard of such evidence,
then it falls upon the reviewing tribunal to intercede.67

Thus, where the trial judge's reasons show he or she has
failed to appreciate an important point, leading to the
conclusion the verdict is unreasonable, an appellate court
has an obligation to intervene.68

Here, the trial judge made reference to Michael's
testimony but she did not mention the improbable
circumstances surrounding the alleged stabbing. She did
not mention the medical evidence of Dr. McKenna which made
no mention of having noticed a stab wound during her
medical examinations prior to Michael being placed in the
Klassen foster home. She also did not mention that Dr.
Yelland, when examining Michael in June, 1990, saw no
evidence of such an injury. Similarly, with respect to the
burns, the trial judge did not mention that Dr. Yelland or
Dr. McKenna had not found any evidence Michael had been
burned as of June, 1990. Dr. Yelland found no evidence of
scarring as of June 1990. In May of 1991, he noticed some
scarring which he admitted he had not noticed prior to that
time. He could not estimate the length of time the scars
had existed or when the injury had been inflicted. He
testified it could have been from three months to one year
old (pages 1019 and 1047). There is medical evidence of
scarring but there is no explanation for the fact Michael
was examined nine months earlier and no scars were noted.
In my opinion, the trial judge erred in law by not
appreciating the significance of such evidence.

2. Assaults by Don R. on Kathleen and Michelle
With respect to the charges that Donald R. committed
assault upon Michelle and Kathleen as particularized in
counts 9 and 10 of the indictment, the trial judge made no
comment on the evidence on which she relied for such a
finding and gave no particulars of the assault she found
the appellant had committed. She made no reference in her
judgment to any incident which could have formed the basis
for such assaults.

The trial judge made reference in her judgment to
comments made by Kathleen that her birth dad "cut [her]
vagina and turned me over and cut my back. My birth dad
hurt me with a knife and no one else did". Again, Kathleen
was examined by Dr. Yelland in June of 1990. He performed
a complete physical examination of Kathleen for the purpose
of determining whether she had been sexually assaulted and
made no mention of any scarring in his notes of the
examination. He admitted he made no note of scarring and
was unable to say whether or not there were scars present.
It seems strange that a doctor, conducting an examination
of a child for the express purpose of determining whether
the child has been sexually abused or sexually assaulted,
would not note scars on the child's body. In May, 1991, he
conducted another physical examination of her body and
discovered a white scar on her chest, one cm. in diameter
"compatible with a healed old burn" (page 1015). He also
found a "7 cm. healed linear scar in the shape of an s"
which was compatible with a cut from a sharp object. He
estimated those scars to be over twelve months old and
"would be consistent with the type of injuries that she
described as being cut or burnt on the relevant areas she
describes the burn scars being on". These injuries appear
from the evidence to have happened long after the children
were removed from the birth parents' home and long after
unsupervised visits with Donald R. ceased. Again, I do not
know what evidence she is referring to, and the trial judge
has not assisted us by describing evidence on which she
relied, to conclude Donald R. had committed an assault
causing grievous bodily harm on the two girls. The trial
judge made no findings of fact she did not indicate on
what basis she found beyond a reasonable doubt that Donald
R. had committed the assault causing bodily harm as
particularized in the relevant counts in the indictment.

The role of this Court is not to reassess the evidence
at trial for the purpose of determining guilt or innocence,
but rather to determine whether the trial judge has
properly directed herself on all the evidence bearing on
the issues. Again, the trial judge made no reference to
evidence which could have cast doubt on whether the burns
or the cuts to the bodies of Michael, Kathleen and Michelle
occurred. She made no mention of the bizarre circumstances
Michael described concerning the alleged stabbing. There
is no mention of the medical evidence and the lack of any
mention of scarring She also made no mention of Michael's
conflicting testimony concerning being cut by and cutting
his sisters.

Similar comments can be made concerning the evidence
pertaining to the alleged burns and cuts on Kathleen and
the lack of physical evidence of scarring. There is no
medical evidence to substantiate the testimony of either
Michelle or Kathleen that a knife had been used to cut
their vaginas.

In my opinion, the trial judge failed to appreciate
the significance of the medical evidence and the fact the
injuries apparently took place after the two girls had been
removed from the birth parents' home and after the
unsupervised visits to Donald R. ceased. She also failed
to take into account and appreciate the children's
contradictory evidence on this issue.

3. & 4.Sexual Assault on all Three Children and the
Credibility of the Children's Testimony

The more serious allegations, of course, concern the
allegations against all three appellants of sexual assault.
In assessing that evidence, the trial judge was clearly
aware of the contradictory and bizarre nature of the
children's evidence. Little would be gained by reciting at
great length all of the bizarre testimony given by the
three complainants. A few examples are sufficient to
indicate the nature of the evidence which was contradictory
and almost incomprehensible.
Michelle testified:
(a)her birth parents would put knives in her bum and vagina
and in the bum and vagina of her sister, Kathleen;

(b)her birth parents made them eat feces, urine and raw
fish mixed in a pail;

(c)her mother made her eat "poop" which had been put into
molds for different festive occasions, i.e., easter bunnies
for Easter, "poop" christmas trees for Christmas and so on;


(d)family member's urine was collected in jars, labelled
and put in the fridge and blood was also collected,
labelled and put in the fridge to be drunk later;

(e)about babies having been killed by her parents and then
buried in the backyard which were later dug up and roasted;

(f)babies were killed and roasted in the backyard;

(g)her parents killed cats and dogs by sticking a knife in
their bums, took out the dog bones and eyeballs and that
she had eaten cats' eyeballs; and finally;

(h)her father or mother would take stray cats and dogs off
the street, screw them and put them back in the street.
There was no evidence of skeletal remains of cats or dogs
being found in the backyard.

Kathleen testified:

(a)her birth father cut her back and vagina with a knife
and as a result she asked a neighbour to take her to the
hospital where she received stitches and stayed over night.
There is no hospital record any of this happened;

(b)her birth parents put a cup under her, cut her to get
blood, drank it and then made her drink it;

(c)about spending three weeks in a hospital and receiving
stitches on her back and vagina. Again, there is no
hospital record of this having occurred;

(d)her birth parents cut up babies, cooked and ate them,
killed a dog by putting a knife up its bum, cooked and ate
it and drank its blood;

(e)she pushed her foster mother's mother-in-law into the
toilet, flushed it and she disappeared through the hole.

Michael, in addition to testifying about his mother
stabbing him to get blood, testified that:
(a)he, his two sisters, his mother and father ate poop and
pee which was cooked in a big pot and boiled and put in
their food like kraft dinner;

(b)his birth parents would screw dogs and kill them;

(c)he and sisters and his birth mom and dad screwed babies
and killed them;

(d)his birth mom put the knife through the baby and his dad
cut the skin off;

(e)the foster mother took photos of him and his two sisters
having sex with each other;

(f)the foster mother burned him with a candle on the middle
finger of his left hand but he punched her and she went
flying across the room; and finally;

(g)the foster mother hung him from a rope in the basement.


These are but a few examples of the nature of the
testimony given by these three very dysfunctional,
traumatized children. Notwithstanding the nature of the
testimony, the trial judge, after having listened to all of
the testimony was convinced the evidence of the children,
in spite of contradictions and lack of memory about many
items, was consistent when they spoke about bad touching
and what was done to them. She was satisfied that they
remembered and faithfully recounted the bad touching.
She said:
In assessing the evidence of the children, I have to
take into consideration not only their present age and
state of traumatization, but their age at the date of the
alleged offences. I find their memory of sexual abuse
directly related in what they described as bad touching of
their private parts and their recounting of those memories
accurate and credible, although some of the surrounding
details as to the particulars, particularly such as time
and frequence are uncertain and confused.69

She continued:
Some of the things related by them appear to be given
carelessly in order to dispose of the question. There were
occasions when confronted and told that they had given
contradictory evidence, they would blithely create an
answer and additional details would be given in order to
justify both statements.

It would be clear from their attitude and demeanour at
such times that they were not attempting to remember, but
merely trying to dispose of the question. Michael would
say he lied or that he was in one of his daydreams. One
had to remember that this child was a tired, stressed and
reluctant witness who had hidden knives in his room because
he said he was going to stab himself because he wanted to
get away from going to court. It is understandable that
they would become confused and forgetful in regard to many
of the peripheral matters that they spoke of and which they
had perhaps even remembered at one time or another.70

She concluded:
The children, in spite of contradictions and lack of
memory about many items, were consistent when they spoke of
the bad touching that was done to them. Painful and
shameful as these memories were to them, I am satisfied
that they did remember and did faithfully recount the bad
touching that was done to them.71

With respect to the allegations of sexual assault the
children answered by rote when questioned about bad
touching. For example, Michael said of his father: "he put
his penis in my bum and I put my penis in his bum and then
he made me suck his penis." Of his mother, he said "I put
my penis in her vagina and she made me suck her boobs and
then she put in her finger in my bum." Of Donald W., he
said "he put his penis in my bum and I put my penis in his
bum and then I sucked his penis." A similar response was
given by Michelle and Kathleen. For example, Michelle
testified her mother "would touch me in my bum and my
vagina". "She would put her finger in it and move it
around. I had to touch her in her bum and vagina with my
finger. I had to suck her boobs." Kathleen made similar
comments concerning her mother and father and Donald W.
The trial judge speculated on why the children testified or
answered by rote (page 2952), but in the end found "their
memory of sexual abuse directly related in what they
described as bad touching of their private parts and their
recounting of those memories accurate and credible,
although some of the surrounding details as to the
particulars, particularly such as time and frequency are
uncertain and confused."

Having said that, the trial judge then made what
appears to be a conflicting finding. She was satisfied
beyond a reasonable doubt that each of the three children
suffered "sexual abuse" from the three accused but went on
to find she had reasonable doubt as to whether any one of
them was made to touch the private parts of one or more of
the accused and whether there was sexual intercourse in the
form of penetration upon Michelle or Kathleen by Donald R.
or Donald W. or upon Helen R. by Michael. When one
examines the decision in relation to Michelle and Kathleen,
the trial judge expressly stated the two girls had
testified Donald R. penetrated them vaginally and anally
(page 2957). There is no other evidence referred to in the
judgment concerning the nature of the sexual assae t
committed on the two girls by Donald W. With respect to
Michael's evidence against Donald W., the trial judge
stated Michael said "every time we were sexually abused by
him, [Donald W.], he would say if we did a good job then he
would give us a chocolate bar or a five dollar bill or
something." He went on to say "he put his penis in my bum
and I put my penis in his bum and I sucked his penis."
That is the evidence she states she has reasonable doubt
about concerning the touching of the private parts of
Michael or the penetration of Michael by Donald W. She
rejected that evidence. There is no other evidence
referred to by her of sexual assault. The same comments
can be made with respect to Donald W. and Helen R. If
reasonable doubt existed with respect to the second part of
the statement made by the children one wonders why
reasonable doubt did not exist with respect to the first
part. Or, conversely, if she was satisfied beyond
reasonable doubt on the first part, why wasn't she
satisfied beyond a reasonable doubt on the second part.
How does one separate these physical acts described in the
statements of the children? The statements all contained
descriptions of being touched by the appellants and being
forced to touch them. For example, Michelle testified her
mother "would touch me in my bum and my vagina" and that "I
had to touch her in her bum and vagina with my finger. I
had to suck her boobs."

The acts of gross indecency with which the appellants
are charged are having the three children touch their
private parts contrary to s.157 of the Code. The
appellants contend the facts which relate to the counts of
sexual assault and gross indecency as charged in the
indictment are so closely interrelated they cannot
realistically be separated. They point to the description
by Michael of the sexual assaults and gross indecency
concerning Donald R.: "he put his penis in my bum and I put
my penis in his bum and he made me suck his penis", and
concerning his mother: "I put my penis in her vagina and
she made me suck her boobs and then she put her finger in
my bum". There is nothing to distinguish these two
criminal acts.

The trial judge found the appellants guilty of
"sexually abusing" the three infants. She did not identify
the sexual abuse or make a specific finding of sexual
assault. She stated : "in the evidence in this case, as in
most sexual assault cases, depends on the assessment of the
testimony of the victims", (page 2945) and continued: "...
I find their memory of sexual abuse directly related in
what they described as bad touching of their private
parts..." (page 2960). She found the memory of the bad
touching of the private parts accurate and credible. Thus,
the sexual abuse referred to must be the bad touching of
their private parts. That is what was described in the
responses, made by rote, by the three infants. The trial
judge wondered why the children answered by rote but gave
no answer to the question. One wonders why the doubt she
had concerning whether the children were made to touch the
private parts of the appellants and the sexual intercourse
in the form of penetration did not extend to the bad
touching, which must, by elimination, be sexual conduct
short of sexual intercourse; or, why the finding she made
about sexual abuse did not extend to the acts of gross
indecency. Unfortunately, the trial judge did not identify
what constituted the sexual abuse and as previously noted,
the evidence of the children concerning the other forms of
touching, ie. the insertion of knives in the vaginas of the
two girls, was bizarre and unbelievable. The acts of gross
indecency, the act of forcing the children to touch the
appellant's private parts and sexual assault in this case,
the touching of the private parts of the infant children,
is so inextricably bound up as to be difficult, if not
impossible, to separate the essential elements of each
offence. Sexual assault requires proof of the intentional
touching and forced contact with the victim, and the gross
indecency charged was forcing the children to touch the
appellant's private parts yet the trial judge had
reasonable doubt about the gross indecency.

There are no factual determinations from which one can
delineate the separate offences of gross indecency and
sexual assault. The trail judge was satisfied beyond a
reasonable doubt that each child suffered sexual abuse from
each of the three appellants (page 2964). Is the finding
that "the memory of sexual abuse directly related to what
they call bad touching of their private parts"(page 2960) a
factual determination that specifically distinguishes the
two offences? Is the memory of bad touching one which
includes the forced touching of the private parts of the
appellants? When one examines the evidence of the children
there is no determination or separation of the two. Does
the acceptance of one and the rejection of the other,
arising out of the same facts so violently at odds, because
the same basic ingredients are common to both charges,
render the verdicts unreasonable with the result the
verdict must be quashed? See R. v. McLaughlin.72

If the evidence is inseparable, is there any other
evidence on which the trial judge could have based her
conclusion that these children had been abused by their
birth parents and Donald W. at their birth home, while
rejecting the evidence of forced touching by the children?

The trial judge noted (at page 2962) that some of the
bizarre and frightening memories revealed in the testimony
of the children would have been difficult to accept had
they not been grounded in actual occurrence as related by
Donald R. She then purports to use as confirmation Donald
R.' evidence with respect to the activities of the
children. With respect that exercise is done in isolation
and without reference to other evidence.

The trial judge found she was able to overlook the
improbability of some of the testimony and stated at p. 17
of her judgment:
I cannot separate many of the beliefs that the
children testified to, and they truly believe, into neat
categories of this happened and this is a misconception.
But some of the bizarre and frightening memories revealed
in their testimony would have been difficult to accept had
they not been shown to be grounded in actual occurrences as
related by Donald R. He confirmed that when living at his
home, the children did believe that they were drinking
blood and urine and eating feces. They did see their
mother wearing a gorilla mask. They saw her drunk. They
saw her being taken by the police. They saw physical
fights between their parents. Their father testified that
there was sexual acting out by the children prior to their
being placed in the Klassen home which he saw or accepted
as true when reported to him by his wife.

The trial judge is referring to the statements made by
Donald R. when he testified that the children often stated
tomato juice was blood (see p. 2590 of the transcript),
apple juice was urine (see p. 2591 of the transcript), and
canned beans were "poop" (see p. 2696 of the transcript).
The testimony went as follows:
QAnd you heard them [the children] talk about all the jars
with the labels of blood and eyeballs, and all that?
AOh, no, no, no, no.
QWell, just a second, Mr. R. I'm not saying that happened,
but what I want to ask you is do you have any idea at all
what the kids may have been talking about?
AH'm. Well, you know, it was tomato juice. Yeah, you put
on tomato juice in a glass and, you know, they think it's
something else. There wasn't, it wasn't blood. You know,
it was just from a big can, and we had that for breakfast.
You know, there'd be tomato juice or apple juice, that
would be it. Yeah, they must have thought it was that.
QDid they ever say to you that they thought they were
drinking blood?
AYes. And, you know, they were expensive. You know, to
buy juice was expensive.
THE COURT: I'm sorry. Did he say that the children said
that they thought they were drinking blood?
A Yes, they thought that.
MR. HILLSON: And what would you and Helen say?
AWell, maybe they thought it was blood, and I would just
drink it. But, you know, the can, the can of juice would
be there. And you would pour it out every morning, you
know, it was healthy. And the kids thought it was
something else, and they didn't want to drink it.
QBut did the kids actually tell you it was blood?
AYeah, and I was surprised.
QWhat would you say when they said it was blood?
AI said, `No, it's not blood', and I'd show them the can.
You know, it wasn't blood, it was something totally
different, it was juice.
QAnd what about the apple juice?
AYes. They thought it was pee, and it's not. Yeah, they'd
look at it and they just dumped it out.
QDid they say it was pee?
AWell, that's what they said, but I didn't say anything.
QWould you say anything when they said it was pee?
AYes, I told them. And they said, `Well, that's bullshit',
and they just put their glass to the side.

And at p. 2696:
QWas there something that -- at home that they thought was
poop? Like you said they thought apple juice was pee and
tomato juice was blood, and was there something that they
thought was poop?
ANo, they thought it was, and I said no. It was bacon and
beans mixed together and hot dogs.
QSo it was kind of a brown colour, was it?
AYou know, canned beans, you know?
QLike pork and beans?
AYeah, canned beans. Yeah, that's what I'm saying. You
know, stuff like that. You know, and they thought it was,
you know, and they didn't want to eat it.
QAnd so you remember times when you would have got some --
a can of beans and you would heat it up and give it to them
and they said, `That's poop, we're not going to eat it'?
AYeah (inaudible), I don't know.
QAnd what did you do when that happened?
AWell, I had to end up making a quick sandwich for them,
you know, some sandwich meat or something.

In addition, Donald R. did testify as to the presence
of the gorilla mask worn by the appellant, Helen R., at
Halloween, and the sexual precociousness of the children.

With respect, the trial judge essentially finds the
stories of the children drinking blood, etc. were not so
bizarre since they were grounded in actual occurrences.
However, it does not logically follow the other bizarre
testimony of the children, with respect to the sexual
abuse, was also grounded in actual occurrence. Nor does it
follow the sexual abuse testimony is any less bizarre or
possibly exaggerated. The parameters of the bizarre
stories, go much further than drinking tomato juice and
calling it blood and apple juice and calling it pee.
Rather, the children told stories of dead babies and cats
and dogs and one week hospital stays healing injuries
inflicted by their parents. The sexual abuse testimony
included stories of knives being used to penetrate the
vagina and other horrific testimony.

At what point may the trial judge conclude one portion
of testimony is, though bizarre, grounded in actual
occurrence yet the other testimony is so bizarre it cannot
be grounded in actual occurrence? Are the stories of dead
animals not just as bizarre as the stories of being forced
to drink blood? Where, in this testimony, extreme from end
to end, does the sexual abuse testimony fit so as to be
more believable, or more grounded in fact, than the other
bizarre stories?

This is not to say the children's testimony was
fiction from beginning to end. Rather, it is only to point
out that the conclusion drawn from Donald R.' testimony
with respect to the children's fantasies about blood,
urine, and feces, do not logically lead to the conclusion
that much or any of the bizarre testimony is grounded in
fact. The import of Donald R.'s testimony cannot logically
be extended to the allegations of sexual abuse.

The trial judge also purported to rely on the medical
and psychological evidence as confirmation of the acts of
sexual abuse. She stated:
The medical and psychological evidence confirms and is
consistent with the evidence from the children that they
had been abused at their birth home.

As I have already noted, the medical evidence does not
confirm the children were abused at their birth home. In
so far as the psychological evidence is concerned, there
was not unanimity on the evidence as suggested by the trial
judge. Dr. Elterman did not conclude the children had been
abused at their birth home. He testified as to the type of
memory the children possessed but was not permitted to
testify as to what type of memory these children possessed
of their life at the birth home. He testified, in
contradiction to the trial judge's assertion that both he
and Dr. Santa-Barbara had testified "there had been no case
in their experience where a highly sexualized child had not
been sexually abused...", that "non abused pre-pubescent
boys could have a precocious interest in sexual matters
prior to puberty" (page 2872). The fact that Anita Klassen
and Garnet Francis observed Michael as being sexually
precocious is not definitive of the children having been
sexually abused at the birth home.

There was no mention by the trial judge that the
stories of the children changed wildly and dramatically, a
factor which Dr. Elterman mentioned specifically being an
indication of the frailty of evidence in sexual abuse
cases. The children kept adding and deleting names to the
list of persons who abused them. Dr. Elterman, when
commenting on the adding and subtracting of names to the
list of abusers, stated:
... that could be troublesome because if names have been
added to a list, and then believed to have been
perpetrators, and then deleted and then other individuals
who were deleted have been added, you would wonder whether,
in fact, that list would change again after six months or a
year, so at what cross-section in time do you then say
well, that's exactly what happened.73

I conclude there is no other evidence on which the
trial judge could have based her conclusion that these
children had been abused by the appellants at their birth
home while rejecting the evidence of forced touching.

The trial judge erred in law, in my opinion, by
failing to appreciate the evidence as it related to sexual
assault and in finding the evidence of the children
credible.

DISPOSITION
Thus, after a thorough review of the evidence, I find
the trial judge made the following errors in law:

(a)The trial judge erred in admitting the two out-of-court
statements made by Michelle. These statements were not
made in circumstances where the guarantee of
trustworthiness existed to permit their reception as
hearsay. They should not have been admitted and
accordingly, I would exclude them;
(b)The trial judge erred in preventing the appellant from
adducing evidence, through Dr. Elterman, on the type of
memory possessed by the children about their birth parents.
This evidence bears directly on the credibility of the
children and could have had an effect on the outcome of the
trial;
(c)The trial judge erred in her refusal to permit full and
complete cross-examination of Ms. Carol Bunko-Rys on
matters central to the credibility of these children. This
failure could have affected the way in which the appellants
conducted the trial and thus, could have caused prejudice
to the appellants.
(d)The trial judge erred in law in finding the evidence of
the children credible.

Although each standing alone may not have been
sufficient to prejudice the appellants, the cumulative
effect is such that it caused prejudice to the appellants
and there is a possibility such errors could have had an
impact on the verdict. Therefore, I have concluded on the
foregoing that there must be at the very least a new trial.

The appellants have not had a trial which, in the
words of Sopinka J. in R. v. S.(P.L.) "The legal rules have
been observed" (p. 91). In addition to the errors of law
noted above I have concluded that the trial judge
misapprehended and failed to appreciate the evidence as it
related to the credibility of the children and as a result
there is serious doubt as to the guilt of the appellants.
In these circumstances the principle is enunciated by
McLachlin J. in R. v. W.(R.) are relevant:
It is thus clear that a court of appeal, in determining
whether the trier of fact could reasonably have reached the
conclusion that the accused is guilty beyond a reasonable
doubt, must re-examine, and to some extent at least,
reweigh and consider the effect of the evidence. The only
question remaining is whether this rule applies to verdicts
based on findings of credibility. In my opinion, it does.
The test remains the same: could a jury or judge properly
instructed and acting reasonably have convicted? That
said, in applying the test the court of appeal should show
great deference to findings of credibility made at trial.
This Court has repeatedly affirmed the importance of taking
into account the special position of the trier of fact on
matters of credibility: W. v. The King, [1947] S.C.R. 268,
at p. 272; R. v. M.(S.H.), [1989] 2 S.C.R. 446, at pp. 465-
66. The trial judge has the advantage, denied to the
appellate court, of seeing and hearing the evidence of
witnesses. However, as a matter of law it remains open to
an appellate court to overturn a verdict based on findings
of credibility where, after considering all the evidence
and having due regard to the advantages afforded to the
trial judge, it concludes that the verdict is
unreasonable.74

In my opinion, on the evidence adduced at trial, a
properly instructed jury, acting judicially, could not have
rendered a verdict of guilty. The verdict was not
reasonable or supported by the evidence within the meaning
of s.686(1)(a)(i) the verdict should therefore be set aside
as unreasonable and the convictions quashed.

Since writing this judgment, the Supreme Court of
Canada has issued the judgment in R. v. Mohan75 dealing
with the admissibility of expert testimony. The principles
set out in Mohan concerning the admissibility of expert
testimony do not affect or change my conclusions concerning
the admissibility of the testimony of Dr. Elterman sought
to be introduced by the defence and the error of the trial
judge in refusing to admit the evidence of the development
of memory in children. In my opinion the evidence sought
to be introduced met all the requirements set out in Mohan.


DATED at the City of Regina, in the Province
of Saskatchewan, this 10th day of May A.D. 1995.


Vancise J.A.

FOOTNOTES:
1. Transcript of Evidence, Judgment at p. 19.
2. [1980] 1 S.C.R. 759; (1979), 50 C.C.C. (2d) 193.
3.(1989), 52 C.C.C. (3d) 500 (Sask. C.A.). See also R. v.
C.(H.W.) (1993) 113 Sask. R. 73; McMartin v. R. (1964),
S.C.R. 484; R. v. Stolar, [1988] 1 S.C.R. 480; (1988) 40
C.C.C. (3d) 1; R. v. McAnsebie (oral judgment of Supreme
Court of Canada dated December 10, 1993; and R. v. Shane
Leslie Price, oral judgment of the Supreme Court of Canada
dated December 10, 1993 confirming Palmer and Stolar).
4.Section 1(1)(b) Canada Evidence Act, R.S.C. 1985 c. C-5.
as rep. and am. An Act to Amend the Criminal Code and the
Canada Evidence Act, R.S.C. 1985 (3d Supp.) s. 18, c.19.
5.[1994] 4 S.C.R. 223; (1993), 159 N.R. 81; (1993), 25 C.R.
(4th) 1.
6. Ibid. at pp. 89-90.
7. Transcript of Evidence at pp.150-151.
8. Ibid. at pp. 602-603.
9. Ibid. at pp. 1444-1445.
10. (1966), 48 C.R. 110 (Man. C.A.), (1966) 55 W.W.R. 257.
11. Transcript of Evidence at p. 2493.
12. Transcript of Evidence, Judgment at pp. 4 & 5.
13.[1990] 2 S.C.R. 531; (1990), 59 C.C.C. (3d) 92
[hereinafter Khan].
14.(1992), 9 O.R. (3d) 641, (1992) 94 D.L.R. (4th) 193.
[hereinafter Khan v. The College].
15. Transcript of Evidence at pp. 1254-1256.
1. Transcript of Evidence at pp. 760-765.
17. [1970] S.C.R. 608, 73 W.W.R. 347 (S.C.C.).
18. Supra, Note 13 at pp. 104-105 (C.C.C.).
19. [1992] 2 S.C.R. 915; (1992), 15 C. R. (4th) 133.
20. Ibid. at p. 91
21. Ibid. at p. 933.
22. Transcript of Evidence at p. 16.
23. (1991) 9 C.R. (4th) 377.
24. Supra, Note 14 at p. 655.
25. Supra, Note 6 at p. 546.
26. (1991) 10 C.R. (4th) 93.
27.(1992), 10 O.R. (3d) 266, 57 O.A.C. 152, 77 C.C.C. (3d)
462.
28. Transcript of Evidence at p. 2494.
29. Supra, Note 19 at p. 933 (S.C.R.).
30. Transcript of Evidence at p. 2495.
31. Transcript of Evidence at pp. 112-11.
32. Ibid. at p. 257.
33. Ibid. at pp. 2558-2559.
34. Ibid. at pp. 2765-2766.
35. Ibid. at pp. 131-132 and 363-366.
36. Transcript of Evidence at p. 2833.
37. Transcript of Evidence at pp. 2834 & 2835.
38. Transcript of Evidence at p. 2835.
39. Transcript of Evidence at p. 2837.
40. Transcript of Evidence at p. 2838.
41. Transcript of Evidence at p. 2839.
42. (1991), 33 Crim L.Q. 385 at p. 386.
43.Supra, Note 5 at p. 104 (N.R.); see also R. v. BÇland,
[1987] 2 S.C.R. 398 at p. 415.
44. Ibid. at p. 105.
45. (1994), 15 N.R. 374.
46. Ibid. at p. 384.
47. Ibid. at pp. 385 & 386.
48. Transcript of Evidence at p. 687.
49. Transcript of Evidence at pp. 731-732.
50. Transcript of Evidence at pp. 2137-2138.
51.[1962] 3 All E.R. 298; [1962] 1 W.L.R. 1152 (C.C.A.).
52.Sopinka, John, S.N. Lederman and A.W. Bryant, The Law of
Evidence in Canada, (Toronto: Butterworths, 1992) at p.
854.
53.J. Douglas Ewart, Documentary Evidence in Canada,
(Toronto: Carswell, 1984) at p. 272.
54.(1979), 1 Sask. R. 47 (Sask. C.A.); see also: R. v.
Cassibo, (1982), 70 C.C.C. (2d) 498 at p. 506 (Ont. C.A.).
55. [1987] 2 S.C.R. 18, [1987] 6 W.W.R. 97.
56. Ibid. at p. 186. (S.C.C.)
57. [1991] 1 S.C.R. 909
58. Ibid. at p. 915.
59. [1992] 2 S.C.R. 122; (1992), 13 C.R. (4th) 257.
60. Ibid. S.C.R. at pp.131-132; C.R. at p. 265.
61. Supra, Note 45 at p. 381.
62. [1990] 2 S.C.R. 3.
63. Supra, note 59 at p. 134.
64. [1977] 2 S.C.R. 665.
65. [1982] 1 S.C.R. 2.
66. (1992) 12 C.R. (4th) 185 (Sask. C.A.); 97 Sask. R.
126.
67. Supra, note 65 at p. 14.
68. Supra, note 45 at 383-84 (ref. to Burns).
69. Transcript of Evidence at p. 2960.
70. Transcript of Evidence, Judgment at p. 15-1.
71. Transcript of Evidence at p. 2964.
72.(1974) 15 C.C.C. (2d) 562 (Ont. C.A.); 2 O.R. (2d) 514.
See also Smith v. R. (1981), 18 C.R. (3d) 399 (Ont. C.A.);
R. v. Hunt [1968] 2 Q.B. 433 (C.A.).
73. Transcript of Evidence at p. 2858.
74. [1992] 2 S.C.R. 122 at pp. 131-132
75. [1994] 2 S.C.R. 9