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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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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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