The Crown has gone awry in the way its laying sexual assault charges. It has become cavalier and uncaring about the effects such charges are having on people's lives, a Saskatoon defence lawyer claims.
Robert Borden, who represented four members of a family charged last year, along with nine others, with sexual assault against four foster children, feels the police didn't do a proper investigation with respect to his clients.
If one had been done, "there would have been no charges."
Eventually, the charges were "stayed" but the trauma of the allegations has destroyed four people's lives, Borden said in an interview.
Along with the mother and father, the Crown charged their two teen-aged children. The charges were later stayed against the teenagers without going to trial. After a preliminary hearing, the Crown also stayed charges against their parents.
Borden said he's incensed with the whole process because after analysing what the children, aged 10 to 13, said, he believes there can be no other conclusion but that his clients were innocent.
The whole process has ruined their lives. They've been tainted and stigmatized as child abusers. But they haven't had their day in court to prove their innocence and it is making a wreck out of them, Borden said.
"My clients wanted to go to trial . . . to be exonerated."
Members of the family cannot be named because it could lead to the identification of the three child complainants.
The 59 year old "grandpa" of the 13-member family eventually pleaded guilty to four charges of sexual abuse and was sentenced to four years in jail.
Some members of his family, including his wife, said he pleaded guilty to spare other members of his family from having to face trial,
"We weren't part of that agreement," said Borden. "We had no control over what the Crown did. There has been no benefit to us in staying of the charges. We wanted to go to trial and they (the Crown) wouldn't let us."
Borden said he's speaking out because, as a lawyer, he is an officer of the court and a part of the judicial system.
"I can't stand by idly and allow this to happen again.
The lawyer said the public must be asking what happened in this case, but it can't find out because of a court order upheld by Queen's Bench Chief Justice D.K. MacPherson that the testimony of the three children be sealed, apparently forever.
"There is something terribly ominous about the Crown's charging 13 people and then taking a guilty plea from just one.
"This is incredible in our justice system. There is something wrong in laying charges against that many people and then seeing only one person pleading guilty."
Of his clients, Borden said: "From the first I had complete faith in their innocence. What they were said to have done (sexually abused the children, including having sexual intercourse) was so contrary to any other scenario involving sexual abuse of children."
There were a total of six related families making up the group of 13, all living apart. To believe the children, you have to accept the position of the Crown that not only were grandpa and grandma capable of abusing the kids, each and every family member was also doing it, as were their spouses and their children, Borden said.
These people were not being investigated by Social Services or the police before the children's allegations, he said.
The children's testimony about the sexual assaults was almost uniform. Even though each of the defendants was alleged to have abused them one at a time over a period of time in their homes, their actions were identical.
"Their MO (method of operation) was supposedly exactly the same. Everyone pulled the covers off the bed, everyone was nude, everyone committed the sexual acts exactly the same
"Well it doesn't take a Philadelphia lawyer to know that people have their own individual ways of performing sexual acts. And then you have to realize that grandma was in a wheelchair and can't walk, let alone run, but she is supposed to have chased a child down the street before dragging her back to the house to sexually assault her.
"When you put that all together, you know your clients are completely innocent. Of that you have no doubt."
Borden said he believes if there is enough evidence to charge the 13 in the first place, there should have been enough to proceed to trial.
"They (prosecutors) are failing to take into account the human suffering that is attendant with false charges or accusations. It's becoming apparent the Crown is becoming . . . uncaring in laying of criminal charges, particularly in sexual assault cases."
Borden said the entire experience came from nowhere and destroyed his clients' lives.
One day, all of a sudden, each and every one is charged with sexual assault and all of their traditional expectations of home and life are gone forever. The trauma is so overwhelming, so significant, that they will never be the same again. They are victims of a system, gone awry.
"I look at these people and remember them from two years ago. Now they're insecure, in need of counselling, psychiatric attention, medicine, doctors, and community support.
"This is an incredible (financial) burden the Crown is putting on the public. Who pays for this? The prosecutors don't have to answer for this.
"In fact, they've taken every step possible to ensure the public doesn't know about it," by successfully obtaining publication bans on what can be reported.
"The staying of charges only has one effect: The Crown has allowed one more year to pass to ensure the public will not be able to have access to the evidence, the proceedings, the actual testimony.
"Personally, I can't sit and wait another year to expose this travesty of justice."
Borden wonders why he and the other defence lawyers never received any court notification that MacPherson had ordered the transcripts of the children's testimony sealed.
"If it was so important that the media not get at these, why weren't we (lawyers) provided with copies of the court order? I've never seen it."
Borden says there's really nothing the judicial system can do for his clients now. For the rest of their lives, all they can do is shout they are innocent. They feel guilty and dirty, but because people in high places said they were guilty.
"That stigma can never be removed"
Seven years after this article, CBC's fifth estate carried "Scandal of the Century" which won several important awards and publicly vindicated some of the lone voices who have been crying for justice in this case.
Nine and a half years after this article appeared, Robert Borden is representing his former clients and several of the Klassen family in a ten million dollar lawsuit. Ed Holgate is also representing some and Richard Klassen is representing himself. Richard Klassen went public with this case even before the lawsuit was filed because it was clear to him that the Ross children had not only been used to manufacture Dueck's case but that Michael was still raping his sisters. Any progress in this case has been as a result of Klassen's efforts and the fact that the public now knows about it, through fifth estate and this website. A guide to the entire story