This is the dissenting opinion of Mr. Justice Vancise which gave Donald and Helen Ross (the deaf birth parents of Michael, Michelle and Kathy) automatic right to appeal to the Supreme Court. Their appeals were successful.
Here, the trial judge made reference to Michael's testimony but she did not mention the improbable circumstances surrounding the alleged stabbing. She did not mention the medical evidence of Dr. McKenna which made no mention of having noticed a stab wound during her medical examinations prior to Michael being placed in the Klassen foster home. She also did not mention that Dr. Yelland, when examining Michael in June, 1990, saw no evidence of such an injury. Similarly, with respect to the burns, the trial judge did not mention that Dr. Yelland or Dr. McKenna had not found any evidence Michael had been burned as of June, 1990. Dr. Yelland found no evidence of scarring as of June 1990. In May of 1991, he noticed some scarring which he admitted he had not noticed prior to that time. He could not estimate the length of time the scars had existed or when the injury had been inflicted. He testified it could have been from three months to one year old (pages 1019 and 1047). There is medical evidence of scarring but there is no explanation for the fact Michael was examined nine months earlier and no scars were noted. In my opinion, the trial judge erred in law by not appreciating the significance of such evidence.
2. Assaults by Don R. on Kathleen and Michelle With respect to the charges that Donald R. committed assault upon Michelle and Kathleen as particularized in counts 9 and 10 of the indictment, the trial judge made no comment on the evidence on which she relied for such a finding and gave no particulars of the assault she found the appellant had committed. She made no reference in her judgment to any incident which could have formed the basis for such assaults.
The trial judge made reference in her judgment to comments made by Kathleen that her birth dad "cut [her] vagina and turned me over and cut my back. My birth dad hurt me with a knife and no one else did". Again, Kathleen was examined by Dr. Yelland in June of 1990. He performed a complete physical examination of Kathleen for the purpose of determining whether she had been sexually assaulted and made no mention of any scarring in his notes of the examination. He admitted he made no note of scarring and was unable to say whether or not there were scars present. It seems strange that a doctor, conducting an examination of a child for the express purpose of determining whether the child has been sexually abused or sexually assaulted, would not note scars on the child's body. In May, 1991, he conducted another physical examination of her body and discovered a white scar on her chest, one cm. in diameter "compatible with a healed old burn" (page 1015). He also found a "7 cm. healed linear scar in the shape of an s" which was compatible with a cut from a sharp object. He estimated those scars to be over twelve months old and "would be consistent with the type of injuries that she described as being cut or burnt on the relevant areas she describes the burn scars being on". These injuries appear from the evidence to have happened long after the children were removed from the birth parents' home and long after unsupervised visits with Donald R. ceased. Again, I do not know what evidence she is referring to, and the trial judge has not assisted us by describing evidence on which she relied, to conclude Donald R. had committed an assault causing grievous bodily harm on the two girls. The trial judge made no findings of fact she did not indicate on what basis she found beyond a reasonable doubt that Donald R. had committed the assault causing bodily harm as particularized in the relevant counts in the indictment.
The role of this Court is not to reassess the evidence at trial for the purpose of determining guilt or innocence, but rather to determine whether the trial judge has properly directed herself on all the evidence bearing on the issues. Again, the trial judge made no reference to evidence which could have cast doubt on whether the burns or the cuts to the bodies of Michael, Kathleen and Michelle occurred. She made no mention of the bizarre circumstances Michael described concerning the alleged stabbing. There is no mention of the medical evidence and the lack of any mention of scarring She also made no mention of Michael's conflicting testimony concerning being cut by and cutting his sisters.
Similar comments can be made concerning the evidence pertaining to the alleged burns and cuts on Kathleen and the lack of physical evidence of scarring. There is no medical evidence to substantiate the testimony of either Michelle or Kathleen that a knife had been used to cut their vaginas.
In my opinion, the trial judge failed to appreciate the significance of the medical evidence and the fact the injuries apparently took place after the two girls had been removed from the birth parents' home and after the unsupervised visits to Donald R. ceased. She also failed to take into account and appreciate the children's contradictory evidence on this issue.
3. & 4.Sexual Assault on all Three Children and the Credibility of the Children's Testimony
The more serious allegations, of course, concern the allegations against all three appellants of sexual assault. In assessing that evidence, the trial judge was clearly aware of the contradictory and bizarre nature of the children's evidence. Little would be gained by reciting at great length all of the bizarre testimony given by the three complainants. A few examples are sufficient to indicate the nature of the evidence which was contradictory and almost incomprehensible.
(a) her birth parents would put knives in her bum and vagina and in the bum and vagina of her sister, Kathleen;
(b) her birth parents made them eat feces, urine and raw fish mixed in a pail;
(c) her mother made her eat "poop" which had been put into molds for different festive occasions, i.e., easter bunnies for Easter, "poop" christmas trees for Christmas and so on;
(d) family member's urine was collected in jars, labelled and put in the fridge and blood was also collected, labelled and put in the fridge to be drunk later;
(e) about babies having been killed by her parents and then buried in the backyard which were later dug up and roasted;
(f) babies were killed and roasted in the backyard;
(g) her parents killed cats and dogs by sticking a knife in their bums, took out the dog bones and eyeballs and that she had eaten cats' eyeballs; and finally;
(h) her father or mother would take stray cats and dogs off the street, screw them and put them back in the street. There was no evidence of skeletal remains of cats or dogs being found in the backyard.
(a) her birth father cut her back and vagina with a knife and as a result she asked a neighbour to take her to the hospital where she received stitches and stayed over night. There is no hospital record any of this happened;
(b) her birth parents put a cup under her, cut her to get blood, drank it and then made her drink it;
(c) about spending three weeks in a hospital and receiving stitches on her back and vagina. Again, there is no hospital record of this having occurred;
(d) her birth parents cut up babies, cooked and ate them, killed a dog by putting a knife up its bum, cooked and ate it and drank its blood;
(e) she pushed her foster mother's mother-in-law into the toilet, flushed it and she disappeared through the hole.
Michael, in addition to testifying about his mother stabbing him to get blood, testified that:
(a) he, his two sisters, his mother and father ate poop and pee which was cooked in a big pot and boiled and put in their food like kraft dinner;
(b) his birth parents would screw dogs and kill them;
(c) he and sisters and his birth mom and dad screwed babies and killed them;
(d) his birth mom put the knife through the baby and his dad cut the skin off;
(e) the foster mother took photos of him and his two sisters having sex with each other;
(f) the foster mother burned him with a candle on the middle finger of his left hand but he punched her and she went flying across the room; and finally;
(g) the foster mother hung him from a rope in the basement.
These are but a few examples of the nature of the testimony given by these three very dysfunctional, traumatized children. Notwithstanding the nature of the testimony, the trial judge, after having listened to all of the testimony was convinced the evidence of the children, in spite of contradictions and lack of memory about many items, was consistent when they spoke about bad touching and what was done to them. She was satisfied that they remembered and faithfully recounted the bad touching.
In assessing the evidence of the children, I have to take into consideration not only their present age and state of traumatization, but their age at the date of the alleged offences. I find their memory of sexual abuse directly related in what they described as bad touching of their private parts and their recounting of those memories accurate and credible, although some of the surrounding details as to the particulars, particularly such as time and frequence are uncertain and confused.69/p>
Some of the things related by them appear to be given carelessly in order to dispose of the question. There were occasions when confronted and told that they had given contradictory evidence, they would blithely create an answer and additional details would be given in order to justify both statements.
It would be clear from their attitude and demeanour at such times that they were not attempting to remember, but merely trying to dispose of the question. Michael would say he lied or that he was in one of his daydreams. One had to remember that this child was a tired, stressed and reluctant witness who had hidden knives in his room because he said he was going to stab himself because he wanted to get away from going to court. It is understandable that they would become confused and forgetful in regard to many of the peripheral matters that they spoke of and which they had perhaps even remembered at one time or another.70
The children, in spite of contradictions and lack of memory about many items, were consistent when they spoke of the bad touching that was done to them. Painful and shameful as these memories were to them, I am satisfied that they did remember and did faithfully recount the bad touching that was done to them.71
With respect to the allegations of sexual assault the children answered by rote when questioned about bad touching. For example, Michael said of his father: "he put his penis in my bum and I put my penis in his bum and then he made me suck his penis." Of his mother, he said "I put my penis in her vagina and she made me suck her boobs and then she put in her finger in my bum." Of Donald W., he said "he put his penis in my bum and I put my penis in his bum and then I sucked his penis." A similar response was given by Michelle and Kathleen. For example, Michelle testified her mother "would touch me in my bum and my vagina". "She would put her finger in it and move it around. I had to touch her in her bum and vagina with my finger. I had to suck her boobs." Kathleen made similar comments concerning her mother and father and Donald W. The trial judge speculated on why the children testified or answered by rote (page 2952), but in the end found "their memory of sexual abuse directly related in what they described as bad touching of their private parts and their recounting of those memories accurate and credible, although some of the surrounding details as to the particulars, particularly such as time and frequency are uncertain and confused."
Having said that, the trial judge then made what appears to be a conflicting finding. She was satisfied beyond a reasonable doubt that each of the three children suffered "sexual abuse" from the three accused but went on to find she had reasonable doubt as to whether any one of them was made to touch the private parts of one or more of the accused and whether there was sexual intercourse in the form of penetration upon Michelle or Kathleen by Donald R. or Donald W. or upon Helen R. by Michael. When one examines the decision in relation to Michelle and Kathleen, the trial judge expressly stated the two girls had testified Donald R. penetrated them vaginally and anally (page 2957). There is no other evidence referred to in the judgment concerning the nature of the sexual assae t committed on the two girls by Donald W. With respect to Michael's evidence against Donald W., the trial judge stated Michael said "every time we were sexually abused by him, [Donald W.], he would say if we did a good job then he would give us a chocolate bar or a five dollar bill or something." He went on to say "he put his penis in my bum and I put my penis in his bum and I sucked his penis." That is the evidence she states she has reasonable doubt about concerning the touching of the private parts of Michael or the penetration of Michael by Donald W. She rejected that evidence. There is no other evidence referred to by her of sexual assault. The same comments can be made with respect to Donald W. and Helen R. If reasonable doubt existed with respect to the second part of the statement made by the children one wonders why reasonable doubt did not exist with respect to the first part. Or, conversely, if she was satisfied beyond reasonable doubt on the first part, why wasn't she satisfied beyond a reasonable doubt on the second part. How does one separate these physical acts described in the statements of the children? The statements all contained descriptions of being touched by the appellants and being forced to touch them. For example, Michelle testified her mother "would touch me in my bum and my vagina" and that "I had to touch her in her bum and vagina with my finger. I had to suck her boobs."
The acts of gross indecency with which the appellants are charged are having the three children touch their private parts contrary to s.157 of the Code. The appellants contend the facts which relate to the counts of sexual assault and gross indecency as charged in the indictment are so closely interrelated they cannot realistically be separated. They point to the description by Michael of the sexual assaults and gross indecency concerning Donald R.: "he put his penis in my bum and I put my penis in his bum and he made me suck his penis", and concerning his mother: "I put my penis in her vagina and she made me suck her boobs and then she put her finger in my bum". There is nothing to distinguish these two criminal acts.
The trial judge found the appellants guilty of "sexually abusing" the three infants. She did not identify the sexual abuse or make a specific finding of sexual assault. She stated : "in the evidence in this case, as in most sexual assault cases, depends on the assessment of the testimony of the victims", (page 2945) and continued: "... I find their memory of sexual abuse directly related in what they described as bad touching of their private parts..." (page 2960). She found the memory of the bad touching of the private parts accurate and credible. Thus, the sexual abuse referred to must be the bad touching of their private parts. That is what was described in the responses, made by rote, by the three infants. The trial judge wondered why the children answered by rote but gave no answer to the question. One wonders why the doubt she had concerning whether the children were made to touch the private parts of the appellants and the sexual intercourse in the form of penetration did not extend to the bad touching, which must, by elimination, be sexual conduct short of sexual intercourse; or, why the finding she made about sexual abuse did not extend to the acts of gross indecency. Unfortunately, the trial judge did not identify what constituted the sexual abuse and as previously noted, the evidence of the children concerning the other forms of touching, ie. the insertion of knives in the vaginas of the two girls, was bizarre and unbelievable. The acts of gross indecency, the act of forcing the children to touch the appellant's private parts and sexual assault in this case, the touching of the private parts of the infant children, is so inextricably bound up as to be difficult, if not impossible, to separate the essential elements of each offence. Sexual assault requires proof of the intentional touching and forced contact with the victim, and the gross indecency charged was forcing the children to touch the appellant's private parts yet the trial judge had reasonable doubt about the gross indecency.
There are no factual determinations from which one can delineate the separate offences of gross indecency and sexual assault. The trail judge was satisfied beyond a reasonable doubt that each child suffered sexual abuse from each of the three appellants (page 2964). Is the finding that "the memory of sexual abuse directly related to what they call bad touching of their private parts"(page 2960) a factual determination that specifically distinguishes the two offences? Is the memory of bad touching one which includes the forced touching of the private parts of the appellants? When one examines the evidence of the children there is no determination or separation of the two. Does the acceptance of one and the rejection of the other, arising out of the same facts so violently at odds, because the same basic ingredients are common to both charges, render the verdicts unreasonable with the result the verdict must be quashed? See R. v. McLaughlin.72
If the evidence is inseparable, is there any other evidence on which the trial judge could have based her conclusion that these children had been abused by their birth parents and Donald W. at their birth home, while rejecting the evidence of forced touching by the children?
The trial judge noted (at page 2962) that some of the bizarre and frightening memories revealed in the testimony of the children would have been difficult to accept had they not been grounded in actual occurrence as related by Donald R. She then purports to use as confirmation Donald R.' evidence with respect to the activities of the children. With respect that exercise is done in isolation and without reference to other evidence.
The trial judge found she was able to overlook the improbability of some of the testimony and stated at p. 17 of her judgment:
I cannot separate many of the beliefs that the children testified to, and they truly believe, into neat categories of this happened and this is a misconception. But some of the bizarre and frightening memories revealed in their testimony would have been difficult to accept had they not been shown to be grounded in actual occurrences as related by Donald R. He confirmed that when living at his home, the children did believe that they were drinking blood and urine and eating feces. They did see their mother wearing a gorilla mask. They saw her drunk. They saw her being taken by the police. They saw physical fights between their parents. Their father testified that there was sexual acting out by the children prior to their being placed in the Klassen home which he saw or accepted as true when reported to him by his wife.
The trial judge is referring to the statements made by Donald R. when he testified that the children often stated tomato juice was blood (see p. 2590 of the transcript), apple juice was urine (see p. 2591 of the transcript), and canned beans were "poop" (see p. 2696 of the transcript).
The testimony went as follows:
Q And you heard them [the children] talk about all the jars with the labels of blood and eyeballs, and all that?
A Oh, no, no, no, no.
Q Well, just a second, Mr. R. I'm not saying that happened, but what I want to ask you is do you have any idea at all what the kids may have been talking about?
A H'm. Well, you know, it was tomato juice. Yeah, you put on tomato juice in a glass and, you know, they think it's something else. There wasn't, it wasn't blood. You know, it was just from a big can, and we had that for breakfast. You know, there'd be tomato juice or apple juice, that would be it. Yeah, they must have thought it was that.
Q Did they ever say to you that they thought they were drinking blood?
A Yes. And, you know, they were expensive. You know, to buy juice was expensive.
THE COURT: I'm sorry. Did he say that the children said that they thought they were drinking blood?
A Yes, they thought that.
MR. HILLSON: And what would you and Helen say?
A Well, maybe they thought it was blood, and I would just drink it. But, you know, the can, the can of juice would be there. And you would pour it out every morning, you know, it was healthy. And the kids thought it was something else, and they didn't want to drink it.
Q But did the kids actually tell you it was blood?
A Yeah, and I was surprised.
Q What would you say when they said it was blood?
A I said, `No, it's not blood', and I'd show them the can. You know, it wasn't blood, it was something totally different, it was juice.
Q And what about the apple juice?
A Yes. They thought it was pee, and it's not. Yeah, they'd look at it and they just dumped it out.
Q Did they say it was pee?
A Well, that's what they said, but I didn't say anything.
Q Would you say anything when they said it was pee?
A Yes, I told them. And they said, `Well, that's bullshit', and they just put their glass to the side.
And at p. 2696:
Q Was there something that -- at home that they thought was poop? Like you said they thought apple juice was pee and tomato juice was blood, and was there something that they thought was poop?
A No, they thought it was, and I said no. It was bacon and beans mixed together and hot dogs.
Q So it was kind of a brown colour, was it?
A You know, canned beans, you know?
Q Like pork and beans?
A Yeah, canned beans. Yeah, that's what I'm saying. You know, stuff like that. You know, and they thought it was, you know, and they didn't want to eat it.
Q And so you remember times when you would have got some -- a can of beans and you would heat it up and give it to them and they said, `That's poop, we're not going to eat it'?
A Yeah (inaudible), I don't know.
Q And what did you do when that happened?
A Well, I had to end up making a quick sandwich for them, you know, some sandwich meat or something.
In addition, Donald R. did testify as to the presence of the gorilla mask worn by the appellant, Helen R., at Halloween, and the sexual precociousness of the children.
With respect, the trial judge essentially finds the stories of the children drinking blood, etc. were not so bizarre since they were grounded in actual occurrences. However, it does not logically follow the other bizarre testimony of the children, with respect to the sexual abuse, was also grounded in actual occurrence. Nor does it follow the sexual abuse testimony is any less bizarre or possibly exaggerated. The parameters of the bizarre stories, go much further than drinking tomato juice and calling it blood and apple juice and calling it pee. Rather, the children told stories of dead babies and cats and dogs and one week hospital stays healing injuries inflicted by their parents. The sexual abuse testimony included stories of knives being used to penetrate the vagina and other horrific testimony.
At what point may the trial judge conclude one portion of testimony is, though bizarre, grounded in actual occurrence yet the other testimony is so bizarre it cannot be grounded in actual occurrence? Are the stories of dead animals not just as bizarre as the stories of being forced to drink blood? Where, in this testimony, extreme from end to end, does the sexual abuse testimony fit so as to be more believable, or more grounded in fact, than the other bizarre stories?
This is not to say the children's testimony was fiction from beginning to end. Rather, it is only to point out that the conclusion drawn from Donald R.' testimony with respect to the children's fantasies about blood, urine, and feces, do not logically lead to the conclusion that much or any of the bizarre testimony is grounded in fact. The import of Donald R.'s testimony cannot logically be extended to the allegations of sexual abuse.
The trial judge also purported to rely on the medical and psychological evidence as confirmation of the acts of sexual abuse. She stated: The medical and psychological evidence confirms and is consistent with the evidence from the children that they had been abused at their birth home.
As I have already noted, the medical evidence does not confirm the children were abused at their birth home. In so far as the psychological evidence is concerned, there was not unanimity on the evidence as suggested by the trial judge. Dr. Elterman did not conclude the children had been abused at their birth home. He testified as to the type of memory the children possessed but was not permitted to testify as to what type of memory these children possessed of their life at the birth home. He testified, in contradiction to the trial judge's assertion that both he and Dr. Santa-Barbara had testified "there had been no case in their experience where a highly sexualized child had not been sexually abused...", that "non abused pre-pubescent boys could have a precocious interest in sexual matters prior to puberty" (page 2872). The fact that Anita Klassen and Garnet Francis observed Michael as being sexually precocious is not definitive of the children having been sexually abused at the birth home.
There was no mention by the trial judge that the stories of the children changed wildly and dramatically, a factor which Dr. Elterman mentioned specifically being an indication of the frailty of evidence in sexual abuse cases. The children kept adding and deleting names to the list of persons who abused them. Dr. Elterman, when commenting on the adding and subtracting of names to the list of abusers, stated:
... that could be troublesome because if names have been added to a list, and then believed to have been perpetrators, and then deleted and then other individuals who were deleted have been added, you would wonder whether, in fact, that list would change again after six months or a year, so at what cross-section in time do you then say well, that's exactly what happened.73
I conclude there is no other evidence on which the trial judge could have based her conclusion that these children had been abused by the appellants at their birth home while rejecting the evidence of forced touching.
The trial judge erred in law, in my opinion, by failing to appreciate the evidence as it related to sexual assault and in finding the evidence of the children credible.
Thus, after a thorough review of the evidence, I find the trial judge made the following errors in law:
(a) The trial judge erred in admitting the two out-of-court statements made by Michelle. These statements were not made in circumstances where the guarantee of trustworthiness existed to permit their reception as hearsay. They should not have been admitted and accordingly, I would exclude them;
(b) The trial judge erred in preventing the appellant from adducing evidence, through Dr. Elterman, on the type of memory possessed by the children about their birth parents. This evidence bears directly on the credibility of the children and could have had an effect on the outcome of the trial;
(c) The trial judge erred in her refusal to permit full and complete cross-examination of Ms. Carol Bunko-Rys on matters central to the credibility of these children. This failure could have affected the way in which the appellants conducted the trial and thus, could have caused prejudice to the appellants.
(d) The trial judge erred in law in finding the evidence of the children credible.
Although each standing alone may not have been sufficient to prejudice the appellants, the cumulative effect is such that it caused prejudice to the appellants and there is a possibility such errors could have had an impact on the verdict. Therefore, I have concluded on the foregoing that there must be at the very least a new trial.
The appellants have not had a trial which, in the words of Sopinka J. in R. v. S.(P.L.) "The legal rules have been observed" (p. 91). In addition to the errors of law noted above I have concluded that the trial judge misapprehended and failed to appreciate the evidence as it related to the credibility of the children and as a result there is serious doubt as to the guilt of the appellants. In these circumstances the principle is enunciated by McLachlin J. in R. v. W.(R.) are relevant:
It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: W. v. The King,  S.C.R. 268, at p. 272; R. v. M.(S.H.),  2 S.C.R. 446, at pp. 465- 66. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.74
In my opinion, on the evidence adduced at trial, a properly instructed jury, acting judicially, could not have rendered a verdict of guilty. The verdict was not reasonable or supported by the evidence within the meaning of s.686(1)(a)(i) the verdict should therefore be set aside as unreasonable and the convictions quashed.
Since writing this judgment, the Supreme Court of Canada has issued the judgment in R. v. Mohan75 dealing with the admissibility of expert testimony. The principles set out in Mohan concerning the admissibility of expert testimony do not affect or change my conclusions concerning the admissibility of the testimony of Dr. Elterman sought to be introduced by the defence and the error of the trial judge in refusing to admit the evidence of the development of memory in children. In my opinion the evidence sought to be introduced met all the requirements set out in Mohan.
DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of May A.D. 1995.