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.
Queen's Bench Judgment
The trial judge was satisfied beyond a reasonable doubt that each of the three children suffered sexual abuse from each of the three accused. She stated: The children, in spite of contradictions and lack of memory about many items were consistent when they spoke of the bad touching that was done to them. Painful and shameful as these memories were to them, I am satisfied that they did remember and did faithfully recount the bad touching that was done to them. I am satisfied beyond a reasonable doubt that each of the three children suffered sexual abuse from each of the three accused. I am, however, left with a reasonable doubt, which must be resolved in favour of the accused, as to whether any one of them was made to touch the private parts of one or more of the accused, and whether there was sexual intercourse in the form of penetration upon Michelle or Kathy by Donald R. or Donald W., or upon Helen R. by Michael.
1 She made these findings in spite of "contradiction and lack of memory about many items...". In her opinion, in spite of the contradictory evidence, the testimony of the children was consistent when they spoke about the bad touching done to them.
The appellants were sentenced as follows:
The appellant, Helen R. was sentenced to five years concurrent one to another on counts 1, 2 and 3 and one year, concurrent to each other and consecutive to counts 1, 2 and 3, on counts 8 and 11, for a total sentence of six years. The appellant, Donald R. was sentenced to five years concurrent on each of counts 1, 2 and 3 and one year, concurrent to each other but consecutive to counts 1, 2, and 3, on counts 9 and 10, for a total of six years. The defendant, Donald W. was sentenced to three years concurrent on each of counts 1, 2 and 3.
The appellants appeal both conviction and sentence.
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.
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. Osiowy3 to 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?
THE COURT: And what grade are you in school?
THE COURT: Grade five, that's very good. Do you like school?
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.
THE COURT: You do? M'hm. And is it swearing on the Bible?
THE COURT: And promising to tell the truth?
THE COURT: And do you know how important that is?
It's really serious, isn't it?
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?
THE COURT: Good. And you understand the meaning of an oath?
THE COURT: So that when you swear on the Bible you will always tell the whole truth?
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?
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?
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?
THE COURT: And do you go to school?
THE COURT: And what grade are you in?
A Grade four.
THE COURT: And do you like school?
THE COURT: Good. Do you go to church?
THE COURT: And you know about God?
THE COURT: And you know what an oath is?
THE COURT: It means promising God that you will tell the truth?
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?
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?
THE COURT: And promise to tell all the truth?
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?
THE COURT: Good. It's been a few days since we saw you?
THE COURT: Michael, you know all about taking an oath, don't you?
THE COURT: You've taken an oath several times?
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?
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/p>
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:
A And 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.
Q And what did that blood look like to you?
A Like blood.
Q I 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?
Q And what did you do when you saw these panties?
A I just asked Michelle what happened.
Q And what did she say?
A She said, "My daddy touched me."
Q And was there any further conversation with her at that time?
A No, there wasn't.
Q What did you do?
A I 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.
Q Now, did you look at her private parts at that time, when they were in the bathtub?
A Yes, I did.
Q And I understand they would obviously not be wearing anything at that moment?
A No, they were having -
Q What did you see about her private parts?
Q And did you see any blood there?
A I can't recall today.15
Dr. Eleanor McKenna examined Michelle the following day. She testified:
Q I understand that in connection with this type of incident you saw Michelle R. back in 1987, is that correct?
A That's correct.
Q What day did you see her in 1987?
A September the 22nd.
Q And who brought her into your office?
A Her foster mother.
Q Do you recall the foster mother's name?
A Not offhand, no, I'm sorry.
Q And what was the complaint about at that particular time, in terms of injuries?
A The foster mother had brought her in because she was concerned about some bleeding that she had found in the child's panties.
Q And did she bring any physical evidence of the bleeding for you?
A Yes, she did.
Q What was that?
A She brought her underpants.
Q Okay, and you've kept those?
A Yes, we have, on the chart.
Q MR. MIAZGA: Based on that information, then, did you meet Michelle R.?
A Yes, I did.
Q And can you just describe what your initial assessment of her was?
A Okay. 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.
Q Okay. 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?
A Yes, I did.
Q And did you make specific note of what she said to you at that time?
A Yes, I did.
Q And would you have the exact words available today?
A Yes, I do.
Q Could you relate those to the Court?
A "My deaf daddy spanked my bum, then he put his fingers in my bum. It hurt."
Q Okay, and did you examine the panties that have been marked as P-14?
Q Can you go on, then, and describe what else you saw as part of your examination of her genitalia?
A At 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.
Q And what would that indicate to you as a paediatrician?
A Well, 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.
Q And is that when she made the statement referring to her deaf daddy?
Q Is -- what would this injury be consistent with, then, aside from a straddle injury such as you've mentioned?
A It 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?
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  2 S.C.R. 531 at p. 534]
The mother did not ask for further information. She let the matter drop until later.