The John Lucas jury trial is set for October, 2006 in the Court of Queen‘s Bench in Saskatoon. Johanna and John Lucas were jailed in 1995 by Justice Paul Hrabinsky in corrupt court proceedings to protect Saskatchewan Justice from embarrassment as a result of the Ross, Ross and White ritual child abuse trial.
All the judges involved along with Brian Dueck, Saskatoon Police Service, Saskatchewan Justice and Social Services left two 8 year old girls to be raped for four years.
John and Johanna Lucas were again arrested after John picketed the Court of Queen’s Bench during the KVELLO V. MIAZGA civil trial in Saskatoon. He had a few choice words to say about Justice Hrabinsky, Brian Dueck and the Chief Justice and the other religious nut cases who left 8 year old girls to be raped in Saskatchewan.
You want to hear about corrupt sick judges, a 12 year persecution and conspiracy to defraud the public by Saskatchewan Justice stay tuned. It is time the public heard the truth about Justice Hrabinsky and his religious nut case pals in the Saskatchewan Court of Appeal.
Johanna Lucas with the help of her family have a web site. saskatchewanjustice.ca Gunn & Quinney
saskatchewanjustice.ca
John Lucas’s plea of justification is below.
NJ 7 of 2004
IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN
JUDICIAL CENTRE OF SASKATOON
BETWEEN:
HER MAJESTY THE QUEEN
-and-
JOHN DAVID LUCAS
A PLEA OF JUSTIFICATION
In reply to the following INDICTMENT & all parts of Information: 44911275, upon which it was based, the accused John David Lucas, is entering this written PLEA OF JUSTIFICATION, as provided for under Section 611, of the CRIMINAL CODE OF CANADA.
INDICTMENT BEFORE THE COURT
JOHN DAVID LUCAS, of the City of Saskatoon, in the Province of Saskatchewan, stands charged that:
(1) Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003 at or near SASKATOON, SASKATCHEWAN, did
PUBLISH MATTER WITHOUT LAWFUL JUSTIFICATION OR EXCUSE THAT WAS LIKELY TO INJURE THE REPUTATION OF JUSTICE PAUL HRABINSKY BY EXPOSING HIM TO HATRED, CONTEMPT OR RIDICULE, OR THAT WAS DESIGNED TO INSULT JUSTICE PAUL HRABINSKY KNOWING THAT THE MATTER WAS FALSE AND DID THEREBY COMMIT AN OFFENCE, CONTRARY TO SECTION 300 OF THE CRIMINAL CODE.
Dated at the City of Regina, in the province of Saskatchewan, this 25th day of May, A.D. 2005.
__________________________________________
JEFF KALMAKOFF
AGENT OF THE ATORNEY GENERAL
FOR THE PROVINCE OF SASKATCHEWAN
1. In order to comply with Section 611(3), the accused claims without any qualification, that it is always in the “public good” to expose corruption within the justice system.
2. Before making any allegation regarding Mr. Justice Hrabinsky public, the accused spent more than 3,000 hours investigating the related case (cases).
3. Before using the truth to inflame the public, the accused made all of his concerns known to the authorities.
4. Before actually postering the allegations, the accused made sure that Mr. Justice Hrabinsky was given a chance to obtain an interim injunction from the Court of Queen’s Bench, in case he wanted to dispute the truth and or, avoid any of the associated embarrassment.
5. The originating Indictment read as follows:
IN THE COURT OF QUEEN'S BENCH, CRIMINAL JURY
JUDICIAL CENTRE OF SASKATOON
Information: 44911275
CANADA
PROVINCE OF SASKATCHEWAN
HER MAJESTY THE QUEEN
-against-
JOHN DAVID LUCAS
INDICTMENT
JOHN DAVID LUCAS, of the City of Saskatoon, in the Province of Saskatchewan, stands charged that:
(1) Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003 at or near SASKATOON, SASKATCHEWAN, did
COMMIT A CONTEMPT OF COURT BY CAUSING POSTERS TO BE DISPLAYED WHICH WERE CONTEMPTUOUS OF JUSTICE PAUL HRABINSKY, A JUDGE OF THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN CONTRARY TO LAW.
(2) Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003 at or near SASKATOON, SASKATCHEWAN, did
PUBLISH MATTER WITHOUT LAWFUL JUSTIFICATION OR EXCUSE THAT WAS LIKELY TO INJURE THE REPUTATION OF JUSTICE PAUL HRABINSKY BY EXPOSING HIM TO HATRED, CONTEMPT OR RIDICULE, OR THAT WAS DESIGNED TO INSULT JUSTICE PAUL HRABINSKY KNOWING THAT THE MATTER WAS FALSE AND DID THEREBY COMMIT AN OFFENCE, CONTRARY TO SECTION 300 OF THE CRIMINAL CODE.
(3) Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003 at or near SASKATOON, SASKATCHEWAN, did
PUBLISH MATTER WITHOUT LAWFUL JUSTIFICATION OR EXCUSE THAT WAS LIKELY TO INJURE THE REPUTATION OF SUPERINTENDENT BRIAN DUECK, A PEACE OFFICE BY EXPOSING HIM TO HATRED, CONTEMPT OR RIDICULE, OR THAT WAS DESIGNED TO INSULT SUPERINTENDENT BRIAN DUECK KNOWING THAT THE MATTER WAS FALSE AND DID THEREBY COMMIT AN OFFENCE, CONTRARY TO SECTION 300 OF THE CRIMINAL CODE.
(4) On or about the 15th day of September, A.D. 2003 at or near SASKATOON, SASKATCHEWAN did
PUBLISH MATTER WITHOUT LAWFUL JUSTIFICATION OR EXCUSE THAT WAS LIKELY TO INJURE THE REPUTATION OF ROD DONLEVY BY EXPOSING HIM TO HATRED, CONTEMPT OR RIDICULE, OR THAT WAS DESIGNED TO INSULT ROD DONLEVY KNOWING THAT THE MATTER WAS FALSE AND DID THEREBY COMMIT AN OFFENCE CONTRARY TO SECTION 300 OF THE CRIMINAL CODE.
DATED AT the City of Saskatoon, in the Province of Saskatchewan, this 12 day of February, 2004.
__________________________
THOMAS B. MACNAB
AGENT OF THE ATTORNEY GENERAL
FOR THE PROVINCE OF SASKATCHEWAN
6. Please Note:
The police also used Information # 44911275 to charge my wife, Johanna Erna Lucas. Her charges were withdrawn without any explanation, before the preliminary hearing.
7. The accused is confident that it will take the jury less than 5% of the 3,000 hours mentioned, in order to become fully conversant with those parts of the case that are relevant to the remaining charge before the court.
8. While it is alleged that the relevant dates occurred, “Between the 8th day of September, A.D. 2003 and the 15th day of September, A.D. 2003 at or near SASKATOON, SASKATCHEWAN”, the jury should be aware that Mr. Justice Hrabinsky apparently felt that I was a threat to his family. The following was taken from a Saskatoon Police Service Report.
(a) “April 17/02 1415 hrs I was requested by D/C Wiks to attend for a meeting in his office. D/C Wiks advised he had got a call from Justice Ted Malone and advised at that time he was told that Malone had received a call from Justice Paul Hrabinsky. Justice Hrabinsky apparently feared for the safety of his family as he is named in one of the pamphlets. Justice Hrabinsky convicted John and Johanna Lucas previously with defamatory libel and incarcerated them.
I phoned Justice Hrabinsky and spoke to him re: this file. He advised me he would not and could not get involved by leaving any sort of statement. Justice Hrabinsky advised he feared for the safety of his wife, Johanna. He also divulged that they were well aware of what Lucas’ and his associates looked like. He requested vehicle descriptions and associated license plates for the vehicles so that they would be aware if some happened to drive onto his cul-de-sac. I at that time told Justice Hrabinsky that I would not and could not give him vehicle plate numbers and descriptions. I explained that it was not done and would be added ammunition for the Lucas/Klassen clan if they learned that that had happened. Justice Hrabinsky advised he understood and did not push the issue.”
(b) Though the accused was not aware of the specifics of the April-November, (2002) investigation, regarding the above, he was given a small clip of a police surveillance video dealing with the “Lucas file”, from April 17th, 2002, by Mr. Klassen. After my arrest in September 2003, I was informed by more than one source that it was important that I obtain a full disclosure. By March (2005) one of my informants was getting panicky and I informed the Court of Queen’s Bench that I was taking over the job of obtaining disclosure from my lawyer, Mr. Roe. That made it impossible from Mr. Roe’s point of view to continue, so he withdrew. He was neither fired, or forced out. Within a week, Mr. Kalmakoff the prosecutor, informed the accused that he had a short conversation with the Chief Justice of Queen’s Bench, about this case (back in February), that he did not instigate. Shortly after that, Sergeant Faber, from the Saskatoon City Police Service, provided the prosecutor with the above 217 word disclosure… Towards the end of April, I was told that Mr. Justice Malone was given the job of “trial judge”, by the Chief Justice. The prosecutor requested that I try and have him recuse himself because of his involvement. I refused and told him to do his own “dirty work”. Without my informant, it is obvious I would not have received any of the disclosure. Without my informant, it is obvious that Mr. Justice Malone had every intention to handle this case. This is a text book example of how a member of the judiciary can corrupt a proceeding. When another justice found out about the attempt, he went to the Chief Justice with the approval of yet another, to request that Queen’s Bench not deal with this issue. That request was turned down by both the Chief Justice of the Court of Appeal & the Chief Justice of the Court of Queen’s Bench, after consultation.
(c) In Mr. Justice Ball’s Fiat of May 4th, 2006, he finds no basis for calling either Deputy Chief Wiks, or Mr. Justice Malone, as witnesses. The fact that an attempt was made by more than one member of the judiciary to have this case “handled”, is one thing, but it goes much further than that. An allegation was made by a justice to the police, that I was a threat to his family and or wife. That can’t be allowed to stand without some sort of hearing. How can I expect to get any sort of fair trial with that allegation, even if the jury is not informed. To make my point, I want to go back to January 8, 2003. Mr. Thomas B. Macnab, was the prosecutor at the time and he had decided after consulting with Regina, that I did not pose a serious threat to the community if I was released. Mr. Justice Kyle, vehemently took the opposite position, obviously acting on information that the accused didn’t know about. It would be ludicrous to now claim that this has no relevance. It would also be ludicrous for anyone to assume that I would receive a fair sentence, if I was found guilty.
(d) We are also left dealing with another little fairy tale. Sergeant Faber has informed Mr. Kalmakoff, that Deputy Chief Wiks, kept NO NOTES of his conversation with Mr. Justice Malone. That is absolutely preposterous.
9. While it was my intention to attach a list of the material that I wanted entered with this “Plea Of Justification”, the “Justice Malone Affair”, makes it impossible. Now that the Q.B. 271 matter was heard by the Court of Appeal, I want the entire file returned to Saskatoon. Mr. Kalmakoff and I could work our way quickly through it in a few hours and set aside any documents that we can’t agree on. I will also be including several items that prove beyond any doubt that the Court of Queen’s Bench, as an institution, are fully aware that Dueck, misled Saskatchewan Justice. While I fully understand why Mr. Justice Kyle & Mr. Justice Malone, acted as they did, that does not make it right. The innuendo that I was planning to do anything other than expose Mr. Justice Hrabinsky, makes this matter impossible for me to defend, unless I am given an opportunity prior my trial to deal with all of these issues in Queen’s Bench, with a few of the witnesses, under oath.
10. This document should be considered my “Plea Of Justification” in full, if Queen’s Bench decides that Mr. Justice Malone & Deputy Chief Wiks, will not be called as witnesses. This accused never threatened to kill or maim any member of the judiciary, justice, or the constabulary, period.
Dated at Macrorie, Saskatchewan, this 10th day of May, 2006.
______________________________
Applicant: John David Lucas
J. Lucas
Box 92, Macrorie, Saskatchewan S0L 2E0
Tel./Fax: (306) 243-4812
starchamber@sasktel.net
4 comments:
Johanna and John Lucas were jailed in 1995 because they tried to help the Ross children who were full wards of the court. The children were in the care and control of religious extremists within Saskatchewan Justice and Social Services. Seriously dysfunctional children who did not get the help they needed. A pack of religious extremists were able to manipulate the children into giving false testimony.
From the Baynton Judgement: The allegations of sexual abuse were bizarre and revolting because they involved group and ritualistic sex with satanic overtones, the sexual abuse and killing of babies and animals, the ingestion of human flesh, feces, urine, blood and other horrible, perverted and incredible acts.
Johanna and John claimed that Brian Dueck, a Saskatoon Police officer, knowingly left the 8 year old Ross twins to be raped by their seriously dysfunctional older brother. They were both jailed by Justice Hrabinsky in corrupt court proceedings and the information was gagged by court order.
The children had testified against their parents in Saskatchewan’s first ritual satanic child abuse case. The secret court proceeding had a publication ban, the media was not allowed in the court room and the public was not allowed in the court room.
The Richard Klassen family and others were charged at the same time. Justice Baynton found Brian Dueck had maliciously prosecuted the remaining people charged.
During the Richard Klassen civil trial John Lucas heard that the Crown had withheld documents that clearly showed that his Justice Hrabinsky trial was a malicious prosecution and Justice Hrabinsky knew that the Crown was withholding documents and Brian Dueck was lying in his testimony.
Disclosure documents clearly showed that the 8 year old Ross twins were knowingly left to be raped for four years. The children had told social workers they did not tell the truth in court. This should not come as a surprise to anyone with half a brain.
The Ross children’s parents case has been sealed and publication bans prevent anyone from finding any information. The Saskatchewan appeal was on line and has recently been removed. The Canadian Legal Information Institute (CanLII)
Publication of the present document has been temporarily suspended until further analysis of a potential legal restriction prohibiting its publication has been done.
Canadians have a right to see what is going on within the courts in Canada and a duty to children who are wards of the court. The 8 year old Ross children were left to be raped in Saskatchewan for four years. This can not be disputed. They were knowingly left to be raped by police officers, judges and the Crown.
After John Lucas was charged the second time the prosecutor told Justice Kyle that he only asking for the usual conditions of release. Justice Kyle ignored the prosecutor and considered John Lucas to be a danger to the public. Justice Kyle was overheard saying that Justice Hrabinsky was a friend of his.
He then issued the gag order on John Lucas that belongs in the old USSR. Protect a corrupt judge that left two 8 year old girls to be raped was the only reason for Justice Kyle’s gag order.
John Lucas had the former Chief Justice’s name on his picket sign along with Justice Hrabinsky.
The former Chief Justice selected Justice Ted Malone as the trial Judge. During a hearing Justice Malone told the court that the prosecutor was going to drop some of the charges. This was news to the prosecutor and John Lucas. They were standing in court looking at each other in stunned silence.
It was later found out that Justice Malone received this information from the Chief Justice.
The Crown in Saskatchewan has been withholding disclosure and seem to think they can ignore the law as long as the defence lawyers and judges agree and do nothing to obtain a full disclosure. Being self represented in Saskatchewan has its advantages, demand a full disclosure, it should not take two years.
A Saskatoon Police Service Report dated April 17, 2002 clearly shows that Justice Ted Malone and Justice Hrabinsky filed a false police report concerning John Lucas and Richard Klassen.
The Crown requested that John Lucas make application to the court to have Justice Ted Malone remove himself as the trial judge. John told the Crown prosecutor to do “his own dirty work”.
Justice Malone removed himself as the trial judge at the request of the Crown.
Two judges of the Court of Queen’s Bench hearing about this corrupt attempt to take charge of the trial by the Chief Justice and Justice Malone stopped the proceedings and requested that the Chief Justice of Saskatchewan and the Chief Justice of the Court of Queen’s Bench appoint a Court of Appeal Judge as the trial judge.
Two judges of the Court of Queen’s Bench could clearly see that John Lucas could not receive a fair trial in the Court of Queen’s Bench controlled by a hand full of corrupt judges.
There are judges in Saskatchewan who are not religious extremists and know that a small group of judges in the Court of Appeal and Court of Queen’s Bench have taken control of and have been conducting corrupt court proceeding for over 15 years in Saskatchewan.
The two judges request was denied and the same corrupt judges selected Justice Ball as the trial judge. Justice Ball has decided that Justice Ted Malone and Dan Wicks are not to be subpoenaed by the Crown as witness for John Lucas.
This is a travesty of justice, these corrupt judges are in control of the administration of justice in Saskatchewan.
Saskatoon Crown Prosecutor Terry Hinz said after reading the Klassen sex abuse file he received from Cpl. Brian Dueck. "I was completely floored when I read the documents". "It made me feel I was transported back into the 17th century reading about the Salem witchcraft complaints."
Author Paul Johnson, in his book, A History of the American People, Phoenix Giant, said on page 82 "The ostensible facts of the Salem case are not in dispute. Early in 1692, two children in the household of the vicar of Salem, Samuel Parris - his daughter Betty, aged nine, and his niece Abigail, eleven - began to be taken with hysterical fits, screaming and rolling on the floor. Their behaviour affected some of their friends. Neither girl could write and they may not have been able to read. They were fond of listening to the tales of Tituba, a black female slave who formed part of the household. When the girls' behaviour attracted attention, they were medically examined and closely questioned by their credulous father and local busybodies. The girls finally named Tituba as the source of their trouble and she, under pressure to confess witchcraft, admitted she was a servant of Satan, and spoke of cats, rats, and a book of witchcraft, "signed by nine in Salem." Two names of local women were screamed out by the girls, and this set off the hunt."
In Saskatoon, children, some with health problems aged nine and eight were looked after in a special foster home run by the Thomson's. Their foster home was not special because anyone in the Thomson home had any expertise in dealing with children with special health problems. It was special because they had expertise in dealing with children processed by the Devil. The children were encouraged and rewarded by the Thomson's and the interrogators of the children who were anxious to hear about devilish activity to confirm their preconceptions , the children intuited their needs and supplied it.
In Salem a special court was set up. Its proceedings were despicable. The court was finding innocent people guilty to justify its existence. Innocent people who pleaded guilty were released, those who pleaded not guilty or refused to plead were hanged or pressed to death. It was an open court as one would expect in the land of the free. The rule of law broke down.
In Saskatchewan there was no special court set up. The courts excluded the public and media and accepted the evidence of children who any parent hearing what they were saying would have told them, "if you keep talking
like that I will wash your mouth out with soap." Innocent people were being charged and sent to jail. The rule of law broke down.
Salem is not just famous for the hysteria that left people unable to think for themselves in the summer of 1692, it is also a story of the American peoples resolve for justice and truth. The lead witch hunter believed if the
trials were pursued the work of the Devil would be exposed and this would benefit mankind. Author Paul Johnson, in his book, A History of the American People, said on page 85. "The Salem trials, then, can be seen as an example of the propensity of the American people to be convulsed by spasms of self-righteous rage against enemies, real or imaginary, of their society and way of living." "We have here a phenomenon by no means confined to the 17th century. Perhaps the best insight into the emotional mechanism which got the Salem trials going can be provided by examining some of the many cases of child-abuse hysteria, and cases in which children were alleged to have been abused by Satanist rings, occurring in both the United States and Britain in the 1980s and 1990s. The way in which children can be encouraged, by prosecuting authorities, to "remember" imaginary events is common to both types of case. The Salem of the 1690s is not so far from us as we would like to think."
What lead up to the Salem and Saskatoon hysterias is strikingly similar. The similarity ends there. A community leader returned to Salem from England in 1692 and he said that it was the hunting of witches that was the work of the Devil and it was the Devil that led foolish men to do the work of the Devil by hanging innocent people. The court in Salem was abolished. The General Court of Massachusetts passed a motion deploring the action of the judges. Jury members signed a statement of regret. Indemnities were paid to family members of the victims hanged. Some of those who made false statements later confessed. It was over in Salem in about a years time. This is outstanding, in 1692 the people confessed to unlawful activity, paid compensation and searched for the truth. The rule of law was restored. This was the result of leadership, Christian values and a society that valued good old common sense in doing what was proper, it was the right thing to do.
In Saskatchewan the people did not know what happened, when the authorities came to their senses the people responsible in government and the courts did
just the opposite to what happened in Salem. A good number of people in authority were not capable of coming to their senses, they live in their world of hysterical delusions year round, to this day they believe that they saved the people of Saskatchewan from clever cultists who were baby killers,
drinking blood and eating eyeballs and worked with "brood mares" -- women who breed children specifically to sacrifice them.
For over ten years the government of Saskatchewan and the courts engaged in the cover-up. The media and reporters who published information about the cases were charged and off to the court with them. People discovered that two eight year old girls making the accusations were in fact being sexually and physically abused and it was not being done by the people who were charged. They picketed to let the people know that the girls were being raped with the full knowledge of the court and officers of the court. They were charged and off to jail with some of them. In a way there was a special court set up in Saskatoon. It did not deal with the sex abuse cases, it was set up to deal with the cover-up of the child-abuse hysteria, the brake down of the rule of law and the worst case of child abuse at the hands of government officials and courts in Saskatchewan history.
The appeal of the Baynton Judgement is nothing short of a government protecting itself, the court and the people responsible. As we have seen with Mr Dueck, no one is going to be held ccountable. Brad Wall, the Leader
of the Official Opposition, said in his Christmas interview that the scandal of the century in Saskatchewan has to do with potatoes. There is a lack of a
credible Official Opposition in Saskatchewan. The people have no voice in Regina. If the NDP party feels a need to protect the people of Saskatchewan from the Devil and Satanist rings the good Reverend Lorne Calvert and his coalition church at work gang need to stop using government agencies and the
court, resign and build a church in Riversdale.
Richard Klassen is being encouraged to run in the next civic election in Saskatoon for the mayor's chair. Open a bank account in Riversdale for donations to his campaign fund, I encourage Mr Klassen to run in the next provincial election in Riversdale. The people of Saskatchewan and Riversdale
need a voice in the Legislative Assembly. The campaign platform could be an independent inquiry into the administration of justice in Saskatchewan. He could say to anyone that ask him why if he decided to run: "The Devil made
me do it".
May 10, 1995 THE COURT OF APPEAL FOR SASKATCHEWAN
The dissenting opinion of Mr. Justice Vancise (which begins three quarters of the way down page 4) gave Donald and Helen Ross (the deaf birth parents of Michael, Michelle and Kathy) automatic right to appeal to the Supreme Court. Their appeals were successful. Donald and Helen Ross were allowed new trials (which Saskatchewan did not pursue) and Donald White was acquitted. Helen has still not been given back her family albums.
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.
________________________
May 10, 1995 THE COURT OF APPEAL FOR SASKATCHEWAN
Vancise minority report: Ross Ross and White appeal page two continued from page one
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. BĂland, [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. BĂland, 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.
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May 10, 1995 THE COURT OF APPEAL FOR SASKATCHEWAN
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.
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May 10, 1995 THE COURT OF APPEAL FOR SASKATCHEWAN
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.
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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.
1She 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.
___________________________________________
May 10, 1995 THE COURT OF APPEAL FOR SASKATCHEWAN
This is the dissenting opinion of Mr. Justice Vancise which gave Donald and Helen Ross (the deaf birth parents of Michael, Michelle and Kathy) automatic right to appeal to the Supreme Court. Their appeals were successful.
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
______________________________________________
May 10, 1995 THE COURT OF APPEAL FOR SASKATCHEWAN
This is the dissenting opinion of Mr. Justice Vancise which gave Donald and Helen Ross (the deaf birth parents of Michael, Michelle and Kathy) automatic right to appeal to the Supreme Court. Their appeals were successful.
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. BĂland, [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
_________________________________________________
May 10, 1995 THE COURT OF APPEAL FOR SASKATCHEWAN
This is the dissenting opinion of Mr. Justice Vancise which gave Donald and Helen Ross (the deaf birth parents of Michael, Michelle and Kathy) automatic right to appeal to the Supreme Court. Their appeals were successful.
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.
16. 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. 3
4. 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. BĂland, [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
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