Tuesday, April 05, 2005

R. V. KLASSEN Date of Judgment: July 6, 1995

Saskatchewan Judgments

Record 21 of 40
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Date of Judgment: July 6, 1995
Q.B.J. A.D. 1995
No. 18 J.C.S.


IN THE MATTER of an Information sworn at the City of
Saskatoon, in the Province of Saskatchewan, on the 25th day of
August, A.D. 1994, alleging that Richard Allan Klassen and
Sheila Rose Steele on or about the 24th day of August, A.D.
1994, at or near Saskatoon, Saskatchewan, did publish matter
without lawful justification or excuse that was likely to
injure the reputation of Brian Dueck by exposing him to
hatred, contempt, or ridicule or that was designed to insult
Brian Dueck knowing that the matter published was false and
did thereby commit an offence contrary to s. 300 of The
Criminal Code;

IN THE MATTER of a committal to stand trial;

AND IN THE MATTER of an Application for a Writ of Certiorari
pursuant to Part 52 of the Queen's Bench Rules of Court.



- and -


D.L. MacKinnon for Sheila Rose Steele, applicant
Richard Allan Klassen, unrepresented
I.J. Cardinal for the Crown

July 6, 1995


The applicants were charged with defamatory libel
contrary to s. 300 of the Criminal Code of Canada. They
applied for certiorari to quash their committals for trial on
the basis that the Crown failed to introduce any evidence that
they knew their alleged defamatory statements were false.


On August 24, 1994, the applicants and others were
picketing in front of the Saskatoon Police Service building in
Saskatoon. Steele carried a placard which contained the
following statement on the one side:

Sergeant Dueck and Bunko-Ruys must be charged
and tried for their crimes.

and a further statement on the other side:

Help bring to justice those who helped in the
rape of an eight year old.

Klassen carried a placard also, one side of which
stated: .

Sergeant Dueck helped/took part in the rape
and sodomy of an eight year old.

The other side stated:

Carol Bunko-Ruys helped/took part in the rape
of an eight year old.

Dueck is a member of the police service. He was
assigned to investigate allegations of sexual abuse involving
several children and a number of adults. The investigation
disclosed, among other things, that a male child had sexually
abused his siblings while in a foster home and under the
jurisdiction of the Department of Social Services. Bunko-
Ruys, a social worker, had been involved in the same
investigation. Klassen was one of the adults originally
charged with respect to the alleged sexual abuse but the
charges against him were subsequently dropped.

The applicants were not satisfied with the police
investigation or the actions of Social Services and began
expressing their criticism publicly. This resulted in a
variety of public protests of which the picketing was one

They were charged the day following the picketing. A
preliminary inquiry was held in February 1995, at the
conclusion of which, they were committed for trial on this
charge. There were other charges against them under ss. 300
and 301, but they were discharged by the Provincial Court
judge with respect to those. Section 300 of the Criminal Code
of Canada:

300. Every one who publishes a defamatory libel that he knows
is false is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years.


The application is for certiorari. The law is
settled. Judicial review is available by way of certiorari if
the presiding judge lacked jurisdiction. A judge lacks
jurisdiction if there was no evidence on which the judge could
commit: R. v. Skogman, [1984] 2 S.C.R. 93 at 104. If there
is any evidence on which a reasonable jury properly instructed
could convict the challenge will fail: U.S.A. v. Shephard,
[1977] 2 S.C.R. 1067.

The applicants point to the language of s. 300 and
in particular the words "knowing that the matter published was
false". Proof the applicants knew these statements were false
is an essential element. Section 300 was considered at length
in R. v. Stevens, [1993] 7 W.W.R. 38 (Man. Prov. Ct.). That
decision was approved by the Manitoba Court of Appeal on
February 22, 1995. That case observes that s. 300 sets a
stringent standard as to mens rea: the Crown must establish,
inter alia, that the accused intended to defame and had
subjective knowledge of the falsity of the matter published.
Counsel also cited an unreported decision of this Court R. v.
Lucas et al (No. 3), (Saskatoon Judicial Centre 7/94) which
discussed s. 300. In that case the trial judge held that the
test to be applied as to the accuseds' knowledge of falsity
was an objective one. I respectfully disagree. What must be
established is that the accused knew what he was saying was
false. That places a considerable burden on the Crown but it
reflects Parliament's concern that freedom of speech be
protected as much as possible. It is not enough for the Crown
to show that what the accused said was false. It must
establish that the accused knew it was false. There may,
however, be cases where the statement is so obviously untrue
that the accused will be presumed to know that.

A review of the evidence at the preliminary inquiry
does not disclose that Ms. Steele did not believe what was
stated on her sign. That might be said of Mr. Klassen save
for one bit of evidence given by Constable Hoover. I refer to
p. 115 of the preliminary inquiry:

32 QOkay. And then tell us how did you come to be in
custody (sic) of Mr. Klassen then?

AWe were walking into the station, I had him by the

33 QOkay. And tell us, you're walking now to the
station, tell us what you do with Mr. Klassen please?

AHe was taken up to detention and booked in. I
asked him what's your reasoning for doing this and he said, I
wanted to be arrested so this could go to court.

The demeanour of the two accused is relevant. I refer again
to the transcript:

29QOkay. And tell us then, you said you met
up with the group and Constable Chartier --
tell us about what you recall of that whole
meeting up with the group and stuff, what was
said by who and how people were reacting?

AOkay. Well he read them their rights and
warning on the corner. They stated they
understood their rights and there was -- he
tried to take Ms. Steele into custody and she
got fairly excited and started to fight and
try to get away. She was placed in a van and
Mr. Klassen was walked into the station.

Klassen was calm throughout the incident and arrest.

This evidence indicates that Mr. Klassen made the
accusations he did in order that he might be charged. Indeed,
he wanted to be charged. That suggests that he was so
determined to have the issue brought before the court through
the means of the charge of criminal defamation that he was
prepared to make the statements he did in order to procure
that result and to provide him with a platform. I appreciate
that it is impossible to determine the precise state of mind
of the accused in this context but his statements to Constable
Hoover and his conduct generally were sufficient to raise a
sufficient presumption to justify the Provincial Court judge
in committing him for trial. There was, in other words, some
evidence on which the Provincial Court judge, acting in
accordance with U.S.A. v. Shephard could commit.


The application to quash the committal of Sheila Rose
Steele is granted. I make no order as to costs. The
application with respect to Richard Allan Klassen is dismissed
with costs.


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