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Final Judgement in Klassen/Kvello false accusations | Government appeals and applies to intervene

THE COURT OF APPEAL FOR SASKATCHEWAN May 10, 1995

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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.

 

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