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Saskatchewan Justice orders disclosure kept out of hands of accused

Sentencing inconsistent: study on Court of Appeal: Lawyer fears outcome of appeals may depend on judge

The judges on Saskatchewan's Court of Appeal appear to be divided on how tough they should be on criminals, according to a new study of rulings from the court in 2000.

Half of the eight judges consistently side with the Crown and send people to jail, while the other half sought alternatives to prison, states the study by lawyer Dwight Newman, published in the latest edition of the Saskatchewan Law Review.

It analysed the judgments made by the court in the year 2000.

The numbers support suspicion in legal circles about a division on the bench, Newman said in an interview from England where he is studying at Oxford.

"There is a group of judges that are keener on traditional sentencing -- some people might call it tougher sentencing based on jail sentences," said Newman who also studied law at the University of Saskatchewan.

"Then there is a group of judges who are more open to alternatives to imprisonment and are less likely to give a jail sentence and instead to give a conditional sentence."

Since only three of the judges sit on panels to hear cases, Newman said there is the potential for inconsistency.

"There is a danger in this, insofar as a particular individual who takes his or her sentencing appeal to the Court of Appeal may get a very different result depending on which judges happen to be on the panel," said Newman.

In 2000, Justices Cal Tallis, Marjorie Gerwing and Nicholas Sherstobitoff sided with the Crown on nearly 100 per cent of sentencing appeals.

The other five justices -- Stuart Cameron, William Vancise, Gary Lane, Georgina Jackson and Chief Justice Edward Bayda -- were less likely to agree with the Crown. Jackson and Vancise were least likely to side with the Crown -- only about half of the time.

Ian Wagner, a spokesperson for the Saskatchewan courts, said the Court of Appeal uses a computer program to randomly select which judges sit on panels for different cases.

"Judges are independent. They rule according to the law as they see fit," he said. "There is no question that not all judges agree, but that is why we have dissents in this world."

In his survey, Newman also found that in 2000 some judges were more likely to give oral judgments than written.

For example, Gerwing delivered 12 oral judgments and one written -- a 15-paragraph concurring judgment on the Showgirls case in which the court ruled the province can ban stripping in places that sell alcohol. In comparison, Justices Cameron and Sherstobitoff wrote 15 judgments each, while Cameron issued 14 oral rulings and Sherstobitoff seven.

While the oral judgments are transcribed and still make it into the legal literature, Newman said the written ones tend to be more detailed for the benefit of future cases. He cautions that the issue is one of thoroughness, not a comment on the workload of judges, who each earn more than $200,000 per year.

"The written judgments are more likely to be longer and a more carefully developed view of the law and the legal principals," he said.

Overall, of the 122 decisions delivered in 2000, 40 per cent were the more detailed written judgments.

Many cases that come before the Court of Appeal will lend themselves to an oral judgment, noted Wagner.

Although the ruling method is up to judges, he said they may give oral reasons on the spot if the issue does not involve a complex issue of law, or if there will not be any great reliance on the decision in future cases. Judges also do much of their work before rendering final decisions, he noted.

"The written product is part of the work but it is not an indicator to say so-and-so's carrying all the workload. That is not a fair analysis," he said.

"The court invariably gives reason. They don't just dismiss or grant appeals. There are always reasons."

Before he began his rise to the Appeal Court, Calvin Tallis was the legal aid lawyer assigned to the David Milgaard case. "We put our trust in him," says Joyce Milgaard. That was before Tallis abruptly quit the case and was made a judge.

Sheila Steele's letter to City Council, Nov. 2001

Kathleen Jessica Ross appeals to Justice Minister, Chris Axworthy, summer, 2001

More on ambitious and corrupt police officer, Superintendent Brian Dueck

Daryl Labach

"Don't piss in their cornflakes", Labach told Richard Klassen as he set about to send the evidence of police wrongdoing and prosecutorial misconduct back to the Crown.

Klassen took that disclosure and found the evidence he needed to file a claim against the Saskatoon Police, Saskatchewan Social Services and Saskatchewan Justice.

Ed Holgate and Rick Klassen

Klassen is here seen with counsel Ed Holgate outside the Sturdy Stone Center in Saskatoon in the spring of 1994. Holgate filed the lawsuit and also filed the Lucas appeal with the Sask Court of Appeal. In January, 1995 that appeal was lost without Holgate being allowed to say a single word.

"Sit down and shut up", the Court told him.

The lawsuit, Q.B. 271 (1994) has been at a virtual standstill for the last seven years, except for the recent flurry of attempted gag orders since the Fifth Estate picked the Foster Parent story up off the internet.

When nine members of the Klassen family (six in Red Deer, three in Saskatoon), four members of another family, Helen R., Don R. and Don W. were all picked up at the same time on an interprovincial RCMP warrant on June 25, 1991 they had no idea what was going on. True, Sgt. Dueck had interviewed some of them. They had been informed that they were being investigated in connection with allegations made by Helen and Don R.'s children who were wards of the state. The Red Deer arrestees were held for six days before being transported to Saskatoon where they were finally able to obtain bail. They then went home and set about to prepare themselves for a preliminary hearing which was held in November. They were ordered to stand trial at the end of the hearing. During this time the conditions of their bail contained a contact restriction on the other arrestees, including members of their own family.

Their Saskatoon lawyer, Daryl Labach, received from the Crown 3 volumes of transcripts of police interviews of the Ross children; 54 pages of notes by Marilyn Thompson, 5 reports by Carol Bunko-Ruys, social worker; 6 pages of psychiatric examinations of the R children done at the MacNeill clinic; and twelve hours of police video interviews. He rented space in a hotel to show the videotapes to his clients. That was the only time the accused got to examine the "evidence" against them.

The charges against all the Red Deer people were stayed on February 8, 1992. The reason given for the staying of the charges was that the children were too traumatized after going through two preliminary hearings and the trial of Helen and Don R. and Don W. A staying of charges gives the Crown one year's breathing time to try to gather more evidence. It is not an acquittal.

Even a complete acquittal would not set right the damage done to any person charged with sex crimes against children. Richard Klassen decided he would not let the matter drop and that he would do whatever he could to clear his name. That spring, he went to his lawyer and demanded the disclosure evidence. LaBach told him he had to return it to the Crown but Klassen was persistent. He signed a paper agreeing to release the lawyer from any liability and took that disclosure home.

That disclosure contained evidence of criminal conduct by police, social workers and prosecutors. It certainly contained enough material to warrant a full public inquiry. Richard Klassen wrote to the officials asking for explanations and then began calling for a full public inquiry. The people he showed the material to also joined the call for a public inquiry.

The only people who experienced any discomfort as a result of this disclosure being released to Richard Klassen were Sgt. Brian Dueck, Carol Bunko-Ruys, Prosecutors Matthew Miazga and Sonia Hanson and Head of Crown Prosecutions Richard Quinney. Their discomfort comes from being found out and sued. No one in the public has been hurt. No one's privacy has been violated.

John and Johanna Lucas were the first people to be charged with criminal defamation as a result of trying to make the official wrong-doing public. Richard Klassen was charged later on, along with Rob Klassen and Sheila Steele but the charges on the latter two were quashed.

The Lucases were convicted and lost appeals at both the provincial and Supreme Court levels.

It is this part of the Saskatchewan Court of Appeals' decision that reveals the real concerns of Saskatchewan Justice: they don't care about bad police investigations and manufactured evidence or relentless prosecutions or free speech. They do care about the fact that their nefarious workings were discovered and made public. And that is what they do not want to see happen again.

How we got this disclosure

Because they were afraid of the police, the couple who gave the disclosure material to John Lucas did not want him to tell anyone he had given it to them. Richard Klassen, on the other hand, didn't care. Even though he had received his material much later, he has been placed on the record in the Lucas trials as having been the source of this material.

Much of Lucas' trial was spent with the Crown trying to establish the facts around who got the tapes and documents first. The Crown spent thousands, perhaps hundreds of thousands of dollars chasing the case down this silly side path.

The real story of how Dueck had manufactured the case in the first place and how Crown prosecutors and cabinet members had colluded to cover this up was lost in the labyrinth of side issues in the Lucas trials. Lucas chose to conduct his trials by showing disrespect to the court, calling a judge a cocksucker on one occasion.

After the case went to the Supreme Court, Lucas faxed all the Supreme Court Justices with insulting letters. Although he had as defence counsel Clayton Ruby, he lost his appeal in a unanimous decision.

Truth and free speech were lost amidst a hodge-podge of half-truths and loose talk.

From the Saskatchewan Court of Appeals Decision,
R v John and Johanna Lucas, January 12, 1996

. . .While it is not necessary for the resolution of this matter to comment on the way in which Mr. Lucas received copies of the documents which formed the basis for his concern for how the police, and in particular Sergeant Dueck, handled the investigation of the allegations of sexual assault and abuse against certain individuals, the facts of this case oblige us to do so. An examination of the transcript reveals that Mr. Lucas testified he received these documents, which contained details of sexual abuse of two sisters by their brother as well as details of sexual abuse of those three children by adults, described as the "Thompson papers" during the trial in three instalments(sic). He received the first and second instalments in his mailbox anonymously. Mr. Lucas was unable to say who put the papers in his mailbox. With respect to the third instalment of the "Thompson papers," Mr. Lucas testified he received them from a Richard Klassen and that he was present when Klassen received them from his (Klassen's) lawyer. It would appear that the disclosure of the information and documentation, which was made to Klassen to permit him to make full answer and defence, was given to persons other than Klassen, at least Mr. Lucas. There are many interests which require protection in a criminal trial, not only the interests of the accused person but also the privacy interests of victims, witnesses and the need to protect the integrity of the interests of justice. There is a need to ensure that the various interests be balanced and accommodated.

This issue was examined at length in the Report of the Attorney General's Advisory Committee on Charge, Screening, Disclosure and Resolutions Discussions (The Martin Committee Report) submitted to the Attorney General of Ontario in 1994. The Committee examined, among other things, the improper dissemination of disclosed information. It recommended:

The Committee is of the opinion that it is inappropriate for any counsel to give disclosure materials to the public. Counsel would not be acting responsibly as an officer of the court if he or she did so.

The Committee is of the opinion that defence counsel should maintain custody or control over disclosure materials, so that copies of such materials are not improperly disseminated. Special arrangements may be made between defence and Crown counsel with respect to maintaining control over disclosure materials where an accused is in custody, and the volume of material disclosed makes it impractical for defence counsel to be present when the material is reviewed.

These two recommendations, as the Committee noted:"responsibly reconcile the need to provide full disclosure with the need to prevent the misuse of disclosure material." We agree with those recommendations and comments. The material which is disclosed for the purpose of making full answer and defence should not be released to third parties either by the lawyer representing the accused or the accused person himself. . . .(emphasis in red by inJusticebusters)

The entire justice system is telling us that we cannot look at written police evidence without a lawyer present. This allows the Crown to bury the case in so much paper that no lawyer could possibly have time to go over it thoroughly. It is a farce that they should use the term "full answer and defense" in the same breath as stating this disclosure rule. How can you prepare a defense if you can't properly study the case?

inJusticebusters say this is one more good reason not to get a lawyer in Saskatchewan.

When you defend yourself, the Crown must give your disclosure to you! inJusticebusters maintain there can be no "full answer and defense" unless the accused has complete access to his/her file, including sharing that file with anyone. We ask: who has hurt Kathy? We answer: Michael hurt Kathy. Dueck hurt Kathy. The Crown has hurt Julie. Hiding her identity has done nothing to help her. And it has done nothing to help Michael and Michelle, either. In fact, because their names were published on the internet, they were able to finally get the facts about some important information in their own lives. This would not have been possible if we had not defied thepublication ban.

In late 1998, we learned that Michael was at the Saskatchewan Correctional and arranged for Ed Holgate to obtain from him an affidavit.

Early in 1999, Michelle Ross contacted inJusticebusters. She had read the material on the website and she wanted to know more. As it turns out, she was just as agregiously treated as Kathy.

Gradually, the victims in this case are discovering the full truth of what hapened, and they are doing it by going over the transcripts, documents and tapes which the Sask. Appeal Court states they should never see.

Update, Feb. 5, 2001: Today, Kathy Ross came forward on the national CBC news show Canada Now and told Jo Lynn Sheane that not only had she told lies about the Klassen and Kvello families but that Saskatchewan Social Services had actively intervened to prevent the Fifth Estate from contacting her. How can we say this? First, it was her foster mother Joy, in Vernon B.C. who lied to the Fifth Estate's investigators, saying that Kathy did not want to talk about it. Second, Joy takes her orders from Diane Ens who tells Social Services to issue checks to Joy for fostering Kathy. We also know that Joy actively tried to keep Kathy from knowing the name of our website, from contacting Michael and Michelle and her parents and from seeing the Fifth Estate show, "Scandal of the Century."