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Honest belief means 'not guilty'

A rare 'criminal libel' prosecution is thrown out by a Saskatchewan judge

Richard Klassen

Like the better known Martensville sex-abuse case in 1994, Saskatoon's 1992 "Foster Children Case" featured a large circle of adults being charged with various sex crimes on the strength of oral evidence from young children. And like Martensville, the foster children case continues to make news. Two weeks ago, Richard Klassen of Harris, Sask., was found not guilty of defamatory libel in a Saskatoon's Court of Queen's Bench trial.

Mr. Klassen was charged in 1993 after he and several others put up posters in downtown Saskatoon implying that Sergeant Brian Dueck, the investigating officer in the foster children case, was sympathetic to sexual assault. The posterers drew the conclusion because they believed that Sgt. Dueck knew that one of his witnesses, an 11 year old boy, was regularly assaulting his two younger sisters in the foster home where the three lived. Sgt. Dueck's critics maintained that he violated the Police Act by failing to separate the children after learning that the boy was raping his sisters. When police ignored their concerns, the group publicized the issue with their posters.

Dueck helped

Originally designed to keep British lords from defaming their monarch, defamatory libel requires proof both that the defendant's comments are false and that he knows they are false. But last year, Mr. Klassen's partners, John and Johanna Lucas, were found guilty by Saskatoon Queen's Bench Justice Paul Hrabinsky. The judge concluded the Lucases had indeed made false accusations and should have known that they were false.

The Lucases, however, still contend that their evidence and sincere belief were never taken seriously by the judge. Last month, they received permission to take their case to Canada's Supreme Court where they will contest both their original conviction and the constitutionality of defamatory libel. They will be represented by Toronto civil liberies lawyer Clayton Ruby.

The outcome of Mr. Klassen's trial gives the Lucases reason for hope. "The prosecution must have been overconfident in my case," says Mr. Klassen, "because they never tried to show that I didn't believe what I was saying. They only showed that, in their opinion, I had harassed Sgt. Dueck." So when the prosecutor rested his case, Mr. Klassen, a housepainter who was defending himself, asked for a directed not guilty verdict. Justice P. J. Dielschneider obliged.

With the victory in hand, Mr. Klassen is calling for an investigation into Sgt. Dueck's conduct. "I'll wait 30 days to see if the Crown appeals my verdict," he says. "But if they don't. I'm going to continue postering for Sgt. Dueck's resignation."

Crown prosecutor Inez Cardinal denies that her case was inadequate and argues that the outcome would have been different if the decision had gone to a jury. "We had the signs Mr. Klassen carried and the testimony of Sgt. Dueck," she says. "The jury could have inferred Mr. Klassen's knowledge [of falsity] from that."

Ms. Cardinal says it is too early to say whether the Crown will appeal, but Sgt. Dueck says that if the charge of defamatory libel cannot be made to stick, he may bring a civil suit against the Lucases and Mr. Klassen. The policeman insists that he was just doing his job and cannot be held accountable for what the boy was doing to his sisters. "The three of them were in a therapy home and had a therapist on their case," he says. "They were the ones running the show."

Why, the policeman was asked, did he not act on his responsibility if he had reason to believe the sexual assaults were occuring? "But we had trained professionals telling us to leave them there," Sgt. Dueck protests. "It's social services' job to keep them in safe places."

Witch-Hunt number two -- 18 charged, four convicted

Calls for a provincial inquiry into how police and social workers conduct sexual abuse investigations are not based on the Martensville trial alone. Following another Saskatoon trial in the fall of 1992, three adults were convicted of sexual assault and a fourth person pleaded guilty to related charges. Twelve other adults and two juveniles were also charged initially, but these charges were stayed and then dropped. Known as the "Foster children case," court gag orders placed on both the trial and subsequent appeals make it difficult to report. However, it has striking parallels to the trial of the Martensville nine.

The three adults convicted of repeated sexual assault against a young boy and his even younger sisters , had their appeals heard in December, 1993. The Saskatchewan Court of Appeal released its decision two weeks ago, two days after hearing Ravis Sterling's case (see main story). In a split decision the Appeal Court upheld Saskatoon Court of Queen's Bench Justice Mary Batten's original convictions of sexual assaut, assault causing bodily harm, and acts of gross indecency on the children involved. The twelve whose charges were stayed have begun a $10-million lawsuit against Saskatchewan government and the Saskatoon city police for malicious prosecution and negligence.

Appeal Court Justice Stuart Cameron, writing for the majority, noted that the children's physical condition and highly sexualized behavior indicated they had been sexually abused. Expert medical and psychological testimony, called by the Crown agreed on this point. The children's behavior wa not denied by the defendants. But in the absence of corroborating evidence, the question of the three defendants' guilt hung on the credibility of the children's testimony. M. Justice Cameon concured with the trial judge that the children could be believed and rejected all appeals.

The decision, however, was not unanimous. In his written dissent, Justice William Vancise found the trial judge had made four errors in law: she had allowed out-of-court statements to be admitted as testimony; she had rejected expert testimony that spoke to the credibility of the children; she refused to permit a full cross-examination of the children's social worker, Carol Bunko-Ruys in matters that pertained to the children's credibility and she had erred in finding the children's evidence credible. In short, Mr. Justice Vancise found the same investigative and legal problems that wrecked the prosecution's case in the Martensville trial.

Even though charges were stayed for most of the accused, some have been forced to move out of province. In this case, friends of the accused -- a group that included John and Johanna Lucas -- were furious about the way police and social services were caring for the three foster children. The authoriies left them together when their own testimony indicated the brother was continually sexually abusing his twin sisters.

Much of the protesters' concern focused on Saskatoon police Sgt. Brian Dueck. They accused him of violating numerous sections of the Criminal Code, the Family Services Act and Police Act by leaving the children together while he and Ms. Bunko-Ruys conducted their extensive interviews. They also believe that the interview process had led to the same problem thatville. The children, encouraged by leading questions and rewarded when they gave the desired answer, had named an ever wng circle of adult acquaintances as participants in bizarre, satanic and sexual rituals for which no forensic evidence could be found.

The Lucases paraded in front of the Saskatoon police station carrying placards denouncing Sgt. Dueck and his investigation. Twere charged with criminal defamation. In April, Court of Queen's Bench Justice Paul Hrabinsky found them guilty. "Applying the objective test I find that the messages on the placards were false and the accused should have known them to be false," he wrote. "The accused published defamatory libel by insinuation." He sentenced Mr. Lucas to 24 months ad Mrs. Lucas to 22. The Lucases are appealing.

Charles Murray, author and fellow at the Washington-based American Enterprise Institute, sympathizes with Judge Hrabinsky's dilemma. "Objectively there is little doubt the Lucases broke the law," he says. The police and social workers acted on a legal basis but failed to recognize the difference between right and wrong. What they allowed to happen to those little girls was lawlessness."

This is not the first time Sgt. Dueck's investigative methods have been questioned. In 1991, while he was seeking the nomination as an NDP candidate in the riding of Morse near Swift Current, David Green was accused of rape and indecent assault. Sgt. Dueck handled the investigation." He took the woman's word for everything," states Mr. Green. "She claimed that she was 14 at the time, but I didn't even move to Canada until she was 15. Prosecutors were not informed of this until the morning of the trial. She named three persons and claimed they could corroborate her story. Sgt. Dueck only talked to one of them before laying charges. In fact, all three denied any knowledge of a rape. And, at the end, Sgt. Dueck told the court he had no written notes from his investigation."

Mr. Green has been acquitted of all charges, but he says his family is still recovering from the ordeal. "I have a letter from Robert Mitchell saying I am not a victim and therefore not entitled to any compensation [for legal costs]," reports Mr. Green. This is proof an inquiry into out legal system is desperately needed."

Sgt. Dueck is now handling drug investigations in Saskatoon.