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Saskatchewan Judgments
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R. V. LUCAS
QB95222
Date of Judgment: April 12, 1995
Number of Pages: 23
Q.B. A.D. 1994
No. 7 J.C.S.
IN THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF SASKATOON
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JOHANNA ERNA LUCAS AND JOHN DAVID LUCAS
W.R. Donlevy for the Crown
R. Parker for Johanna Erna Lucas and
John David Lucas
NOTE: On February 13, 1995, John David Lucas advised the
Court that Mr. R. Parker would no longer be representing him
and that he would be defending himself.
JUDGMENT (No. 3) HRABINSKY J.
(EDITED TO PROTECT THE IDENTITIES OF CERTAIN INDIVIDUALS)
April 12, 1995
NOTE:There shall be an order directing that the identity of
any individuals alleged to have been involved in sexual
misconduct and any information that could disclose the
identity of such individuals, as well as anything which may be
construed as defamatory material, shall not be published in
any document or broadcast in any way.
The accused stand charged that they between the 19th
day of September, A.D. 1993 and the 22nd day of September,
A.D. 1993 at or near "Q", Saskatchewan did publish matter
without lawful justification or excuse that was likely to
injure the reputation of the police officer by exposing him to
hatred, contempt or ridicule or that was designed to insult
the police officer knowing that the matter published was false
and did thereby commit an offence contrary to s. 300 of the
Criminal Code.
Prior to their arrangement the accused filed in
court the following:
NOTICE PURSUANT TO S. 611(3) OF THE CRIMINAL CODE
WHEREAS John David Lucas and Johanna Erna Lucas
(hereinafter referred to as the "accused"), have been charged
under Informations #307161, #3069675 and #3069655 and/or
#307161 of the City of Q Police Department with having
published a defamatory libels, contrary to sections 300 and
301 of the Criminal Code;
AND WHEREAS the words alleged to constitute
defamatory libels are as follows:
(a)"Did [the police officer] just allow or help with
the rape/sodomy of an eight year old;"
(b)"If you admit it, [police officer], then you
might get help with your touching problem;"
AND WHEREAS the accused believe the words alleged to
constitute defamatory libels refer to and/or make comment with
respect to matters which are true;
AND WHEREAS the accused believe the words alleged to
constitute defamatory libels are justifiable commentary on the
said matters;
AND WHEREAS the accused believe the words alleged to
constitute the defamatory libels were of interest to the
public;
AND WHEREAS the accused believe that publication of
the words alleged to constitute the defamatory libels were for
the public benefit;
AND WHEREAS the accused believe the words alleged to
constitute the defamatory libels should have been published in
the time and manner in which they were published;
TAKE NOTICE that, pursuant to the requirements of
section 613(3) of the Criminal Code, the accused herein set
forth the facts and particulars upon which they grounded their
belief the matter or matters published were true and that the
time and manner of their publication was for the public good
and benefit, said facts and particulars being the following:
1. THAT the said words were with respect to the conduct
of the police officer (hereinafter referred to as "the police
officer"), of the City of Q Police Department, during his
investigation of alleged sexual abuse by adults of the sibling
children, A.B. (hereinafter referred to as "A.B."), C.D.
(hereinafter referred to as "C.D.") and E.F. (hereinafter
referred to as "E.F."), and all of which said children are
from time to time hereinafter referred to as the "X
children");
2. THAT during the said investigation, the police
officer frequently had care and control of the X children for
the purpose of interviewing them with respect to his
investigation of their said alleged sexual abuse by adults
(the period of time over which the said investigation and
interviews were conducted being hereinafter referred to as the
"material times");
3. THAT throughout the material times, the police officer
knew the following facts:
(a)A.B., who was years old, was sodomizing
and having sexual intercourse with his sisters, E.F. and C.D.,
both of whom were aged and respectively;
(b)In particular, A.B.'s sexual relations with and
sodomization of his sisters was often attained by the use of
force, the infliction of physical injury and threats;
(c)A.B. had physically attacked C.D.'s genitals with
a butter knife;
(d)E.F. and C.D. had complained and/or related to
the police that A.B. had sexually abused them and continued to
do so;
(e)All measures taken by the X childrens' foster
parents to prevent the sexual abuse of E.F. and C.D. by A.B.
had failed;
4. THAT at the material times the police office knew
all of the X children were being kept together as foster
children in the same, notwithstanding the facts referred to in
paragraph 3 hereof;
5. THAT throughout the material times the police
officer was in possession of and/or had access to and
knowledge of the following documents, information and
statutory provisions:
(a)A Social History by G.H. (a Social Worker with
the Clinic) of September 17, 1987, in which it was
related inter alia that
(i)A.B.'s conduct with C.D., who was then five
years old, was reported as being of a sexual nature,
(ii)A.B. had been discovered using a butter
knife to insert soap into C.D.'s vagina,
(iii)A.B.'s propensity to touch girls was of
concern,
(iv)A.B. had a propensity for taking his pants
down with other children;
(b)The Report of I.J. (a counsellor with Community
Child Care Consultants) of December 4, 1989, in which it was
inter alia related that
(i)A.B. dresses and acts out as a woman and has
trouble with his sexual identity,
(ii)A.B. is at risk of harming himself and
others,
(iii)A.B. must be supervised and never left
alone with small children;
(c)The Report of the said I.J. of November 26, 1990,
in which it was related that
(i)she has been working with the police,
(ii)four video-tapes have been made of each of
the X children,
(iii)the police office and the L (sic) should
share the report,
(iv)after separating A.B. from his sisters for
a short period, the Department of Social Services had reunited
all of the X children in the foster home of K.L. and M.N., in
, Saskatchewan,
(v)once so reunited in the L home, the X
children had become sexually active with each other and with
other children,
(vi)the three X children had sexually abused
the L family dog,
(vii)the sexual activity between the X children
appears to increase following interviews in which they
describe past sexual abuse,
(viii)when the L's took measures to prevent
the sexual abuse of his sisters, A.B. threatened to run away,
saying, "there's no one to screw here any more,"
(ix)C.D. is afraid of A.B. because he uses
threats to sexually abuse her,
(x)E.F. admits to participating in sexual
activity with her siblings,
(xi)notwithstanding concerns about their sexual
behaviour, the X children should be kept together in order to
treat them as a group,
(d)The Report of the said I.J. of April 26, 1991, in
which it was inter alia related that
(i)she has ongoing involvement with the X
children on a weekly basis,
(ii)there is ongoing consultations with the
police officer,
(iii)the Department of Social Services should
receive a copy of the police officer's report,
(iv)the X children are regressing in their
sexual behaviour,
(v)the X children are having sexual relations
with each other and with other children,
(vi)the L's are taking measures to prevent the
X childrens' sexual activity, which measures appear to be
having a positive effect,
(vii)A.B. has made sexual advances on the L's
fourteen year old daughter,
(viii)A.B. seeks forgiveness for having sexual
relations with his sisters,
(ix)E.F. has urges to touch males and smaller
children in school;
(e)The Report of the said I.J. of September 3, 1991,
in which it was related that
(i)as a result of measures taken by the Ls, it
appeared the X children had not victimized each other between
mid-January and mid-May,
(ii)between May and June A.B. had victimized
E.F. and E.F. had victimized C.D.,
(iii)A.B. and E.F. have had `agreeable sex'
with each other,
(iv)A.B., E.F. and C.D. had sex with each other
in I.J.'s office while I.J. listened outside the door,
(v)A.B. and E.F. were making progress, but when
all X children are together, two of them force the third to
participate in sexual activity,
(vi)although she believes the X children are
making progress, I.J. is concerned about the victimization of
the one by the other two,
(vii)A.B. regresses and sexually abuses his
sisters,
(viii)I.J. has consulted with the prosecutors
and the Department of Social Services,
(ix)notwithstanding their sexual abuse of one
another, I.J. wants the X children kept together and the
situation reviewed from time to time,
(x)because of upcoming court procedures, I.J.
feels she should have further sessions with the X children;
(f)The various notes made by M.N., made with respect
to her observations of the X childrens' conduct at the
material times in her home, which state inter alia at page 1
(i)A.B. has intercourse with the , the L
family dog,
(ii)A.B. and E.F. have sex in the back alley,
(iii)A.B. and E.F. have sexually abused `baby
O,'
and at page 2
(iv)A.B. had intercourse with other boys at
school,
and at page 6
(v)A.B. asked M.N. to put her knives away in
case he kills her,
and at page 8
(vi)wishes `good luck' to the police officer
and I.J.,
(vii)A.B. admits he `screwed the cat,'
(viii)A.B. admits he `screwed a little
child,'
and at page 24
(ix)C.D. states A.B. and E.F. pulled her into
E.F.'s bedroom and threatened to use a gun on her and the L
family,
(x)A.B. is abusing E.F. and E.F. is abusing
C.D.,
and at page 25
(xi)C.D. states that, because she would fight
back when he had intercourse with her, A.B. cut her neck,
(xii)A.B. threatens the Ls with a knife and gun
because he doesn't like talking about sexual matters,
(xiii)M.N. indicates all of her notes are
going to the police officer,
and at page 29
(xix)The L family dog is sick from too much
sex,
and at pages 40 through 42
(xx)the Ls were tying A.B.'s door at night to
prevent him from getting at his sisters,
(xxi)however, A.B. was able to untie the knots
by squeezing his hand through the crack in the door and get at
his sisters,
(xxii)whereupon he would have sex with E.F.
and tie and gag C.D. and force her to perform oral sex on him,
(xxiii)after which he would go back to his
room and have C.D. retie the knots,
(xxiv)A.B. threatens to kill the Ls when he
grows up if E.F. and C.D. say anything,
(xxv)A.B. is having sex at school with other
children,
(xxvi)all attempts to prevent A.B. from
having sex with his sisters and other children have failed,
and at page 43
(xxvii)in a letter, A.B. promises his birth
parents, (sic) if he has to kill the L family, he will tell
them, but he feels he may not have to kill anybody;
(g)The oath required of peace officers pursuant to
section 37(2) of the Police Act, the prescribed form of said
oath being as follows:
I, ............., do swear that I will well and
truly serve Her Majesty the Queen. I, ..............., do
swear that I will well and truly serve Her Majesty the Queen
upon my appointment as .......... with no favour or affection,
malice or ill will, that I will, to the best of my power,
cause the peace to be kept and preserved and prevent all
offenses against the person and properties of all persons, and
that I will to the best of my skill and knowledge discharge
all the duties of my office faithfully and according to law.
So help me God;
(h)Section 1 of the Family Services Act, which
states inter alia
(1)Every person having information that a child
is in need of protection shall report the information to an
officer or peace officer.
(3)Every peace officer who is in receipt of
information that a child is in need of protection shall
forthwith report the information to an officer of the
department;
(i)Section 217 of the Criminal Code, which states
Every one who undertakes to do an act is under
a legal duty to do it if an omission to do the act is or may
be dangerous to life;
(j)Section 218 of the Criminal Code, which states
Every one who unlawfully abandons or exposes a
child who is under the age of fifteen years, so that is or is
likely to be endangered or its health is or is likely to be
permanently injured, is guilty of an indictable offence and is
liable to imprisonment for a term not exceeding two years;
(k)Section 219 of the Criminal Code, which states
(1)Every one is criminally negligent who
(a) in doing anything, or
(b)in omitting to do anything that it
is his duty to do,
shows a wanton or reckless disregard for
the lives or safety of other persons.
(2)For the purpose of this section, "duty"
means a duty imposed by law;
(l)Section 35 of the Police Act which states inter
alia
(1)Notwithstanding any other Act, a board may
immediately suspend from duty any member where in the opinion
of the board there are reasonable grounds for believing the
member has been neglectful in the performance of his duty, has
conducted himself improperly, contravened a provision of a law
of Canada or of the province, or has violated a provision of
this Act or a regulation or order made hereunder;
6. THAT in addition to the facts referred to in
paragraphs 3 and 4 hereof and the documents, information and
statutory provisions referred to in paragraph 5 hereof, the
police officer had video-taped interviews will all of the X
children, the contents of which said interviews were
transcribed;
7. THAT pages 102 through 104 of the transcription of
the police officer's video-taped interview of E.F., of October
21, 1990, discloses inter alia the following:
(a)E.F., upon being asked by the police officer why
she was tired, answers by saying A.B. was, as she put it,
"screwing" her last night in the L house, because K.L. didn't
"tie" the door in order to, as she put it "give A.B. a chance
not to screw;"
(b)The police officer makes no suggestion that he
will assist her in being removed from the company of A.B.;
(c)The police officer responds to E.F.'s revelation
by telling her that sexual play between children is because of
bad things done by "big people;"
8. THAT pages 81 through 111 of the transcription of
the police officer's videotaped interview of C.D., of October
21, 1990, discloses inter alia the following:
(a)C.D. states A.B. lives with her;
(b)C.D. talks about E.F. and A.B. doing things to
the L family dog;
(c)K.L. gave her full permission to hit A.B.;
9. THAT the said transcripts of all of video-taped
interviews of the X children reveal that the police officer,
disregarded or minimized the said childrens' sexual and
physical abuse of one another and, in particular the real and
present danger A.B. represented with respect to his sisters
and, instead extensively
(i)by leading questions, harassment and
coercion, attempted to elicit from the said children,
statements implicating adults as having sexually touched them
and/or sexually abused them;
(ii)explained how their sexual touching of each
other was because they had been sexually touched by adults;
10. THAT prior to the preparation and display of the
words alleged to constitute the defamatory libel with which
they are charged, the accused were each in possession and had
knowledge of all of the facts, documents, information and
statutory provisions referred to herein;
11. THAT at all material times the accused believed and
continue to believe the said facts, documents, information and
statutory provisions were contained in and derived from the
records of the Q City Police Department, the Department of
Social Services and the Department of Public Prosecutions and
that they, of some of same, formed part of the records of the
Saskatchewan Provincial Court and the Queen's Bench Court of
Saskatchewan;
12. THAT at all material times the accused believed and
continue to believe the said facts, documents, information and
statutory provisions are truthful and properly describe the
circumstances to which the words alleged to constitute
defamatory libel refer;
13. THAT at all times material the accused believed, as
they continue to believe, the following with respect to the
circumstances described herein:
(a)Notwithstanding his knowledge that A.B. had
seriously victimized E.F. and C.D. and E.F. and C.D. were
exposed to such danger that they constituted children in need
of protection as contemplated by section 1 of the Family
Services Act, the police officer, contrary to his oath he had
taken pursuant to section 37(2) of the Police Act, failed or
omitted to take any step or to take proper steps to remove the
X sisters from the said danger or to prevent the recurrence of
the harm to which they had been exposed and subjected;
(b)That the said failure or omission was as a result
of
(i)the importance given by the police officer
of his investigation of possible sexual abuse having been
enacted by adults,
(ii)the lack of importance given by the police
officer of the said danger to the X sisters,
(iii)the benefits, perceived by the police
officer to be gained, with respect to continued allegations of
the X children against adults, by not separating E.F. and C.D.
from A.B.;
(c)That said failure or omission of the police
officer constituted a breach of the duty imposed pursuant to
section 217 of the Criminal Code;
(d)That said failure or omission of the police
officer constituted an abandonment of the nature and kind
contemplated in Section 218 of the Criminal Code;
(e)That said failure or omission of the police
officer constituted the criminal negligence and/or wanton or
reckless disregard and/or a breach of the duty contemplated in
section 219 of the Criminal Code;
(f)Prior to the preparation and display of the words
alleged to constitute the defamatory libel, the Q Police
Department, the Department of Social Services, the Department
of Public Prosecutions, notwithstanding their knowledge of the
said circumstances, and no other authority took any action
with respect to the police officer's failure or omission or
any step to separate the X children;
14. THAT at all material times the accused believed and
continue to believe, the following:
(a)The police officer, the Q Police Department, the
Department of Social Services and the Department of Public
Prosecutions all are servants of the public;
(b)The police officer, the Q Police Department, the
Department of Social Services and the Department of Public
Prosecutions all have a high duty of care towards the public
and each member thereof to assure that circumstances, such as
those referred to herein, do not occur or, should they occur,
to take every possible measure to assure they do not continue
or recur;
(c)Failure or negligence with respect to such duty
of care is of great importance to the public and commentary or
publication with respect to same is in the public interest
and, in a free and democratic society, is for the public good
and benefit;
15. THAT at all material times the accused believe as
they continue to believe, that the time and manner of the
publication of the words alleged to constitute a defamatory
libel was justified for the following reasons:
(a)Because of their residency in the same home as
A.B., E.F. and C.D. were being sexually abused and physically
and psychologically injured throughout the material times;
(b)All persons, the police officer in particular,
having the authority failed and/or neglected to exercise the
means available to them to prevent the sexual abuse and
physical and psychological injury to E.F. and C.D.;
(c)It was and is important that the public have
knowledge of such failure and/or neglect by persons having
such authority and public duty;
(d)Time being of the essence, it was important to
take immediate steps to inform the public of E.F.'s and C.D.'s
past and continuing peril;
(e)The police officer's failure and/or negligence
effectively assisted A.B. to carry out the sexual abuse and
sodomization of his sisters;
(f)The police officer's refusal to deal with the X
children's touching problems, as the police officer referred
to their sexual activity, particularly that of A.B., and
instead dwell only on the touching problems of adults,
constituted wilful blindness to the circumstances which
existed;
(g)Given the natural limitations of poster and/or
picket messages, the accused sought to impart their own
knowledge of the circumstances to the public which most
succinctly imparted the urgency of the situation;
AND FURTHER TAKE NOTICE that it is the intention of
the accused to produce and enter as exhibits in support of the
foregoing the following documents and materials:
(a)The Social History referred to herein by G.H.;
(b)All reports referred to herein by I.J.;
(c)All notes referred to herein of M.N.;
(d)All transcriptions and copies of video-tapes
referred to herein;
AND FURTHER TAKE NOTICE that the said documents and
materials may be inspected at the office of the accused's
defence counsel, at the address shown below, between the hours
of 9:00 A.M. and 4:00 P.M., on the days of Monday through
Friday of any week, except such days as constitute statutory
holidays.
Pursuant to s. 655 of the Criminal Code the accused
admitted the following facts:
1.At all times material to this matter, the person the police
officer referred to in the indictment was a with the
City of Q Police Service and as such as a peace officer.
2.On September 20, 1993 at 9:00 A.M. the accused were observed
to be walking on a public sidewalk in front of the Police
Station in Q, Sask. carrying a sign which had printed on one
side the words "Did [the police officer] just allow or help
with the rape/sodomy of an 8 year old" and on the other side
the words "If you admit it [police officer] then you might get
help with your touching problem".
3.The accused were accompanied by a number of other persons.
The sign and the printing thereon were clearly visible to
persons passing by and to those looking out of the windows of
the Police Station.
4.The Police Station is the place of employment of the police
officer.
The accused were observed by other police officers while
carrying the sign. They were recorded on videotape in their
activities and then arrested and charged.
The sign carried by Johanna Lucas was in the
following form.
IF YOU ADMIT IT
[POLICE OFFICER]
THEN YOU MIGHT
GET HELP WITH YOUR
TOUCHING PROBLEM
The other side read:
DID [THE POLICE OFFICER]
JUST ALLOW OR HELP
WITH
THE RAPE & SODOMY
OF AN 8 YEAR OLD
The sign carried by John Lucas was in the following
form:
DID [THE POLICE OFFICER]HELP/OR TAKE PART
IN THE RAPE & SODOMY
OF AN 8 YEAR OLD
THE [L] PAPERS PROVE
[THE POLICE OFFICER] ALLOWED HIS WITNESS TO RAPE
The other side read:
THE [L]
PAPERS PROVE [THE POLICE OFFICER]
ALLOWED THE FALSE
ARREST & DETENTION
OF MRS. LUCAS, WITH A
FALSIFIED INFORMATION
THE LAW
Section 300 reads:
300. Every one who publishes a defamatory libel that he knows
is false is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years.
The Crown must prove that a person charged under s.
300 knew that the published defamatory libel was false.
The definitions of "defamatory libel" and
"publishes" are found in ss. 298 and 299 of the Criminal Code.
They read:
298. (1) A defamatory libel is matter published, without
lawful justification or excuse, that is likely to injure the
reputation of any person by exposing him to hatred, contempt
or ridicule, or that is designed to insult the person of or
concerning whom it is published.
(2) A defamatory libel may be expressed directly or
by insinuation or irony
(a) in words legibly marked upon any substance, or
(b) by an object signifying a defamatory libel otherwise than
by words.
299. A person publishes a libel when he
(a) exhibits it in public,
(b) causes it to be read or seen, or
(c) shows or delivers it, or causes it to be shown
or delivered, with intent that it should be read or seen by
the person whom it defames or by any other person.
It is to be noted that neither of the foregoing sections
refers to the truth or falsity of the defamatory libel.
Further, ss. 298 and 299 are very broad. Counsel for the
applicants submits that a broad range of relatively trivial or
innocuous material would fall within those provisions of the
Criminal Code. Counsel for the respondent concedes that this
is so. I agree. However, courts have held that criminal
sanctions for defamatory libel should be available for
serious, not trivial libels. In Gleaves v. Deakin, [1979] 2
All E.R. 497 (H.L.) Lord Scarman stated at p.508-09:
It is, however, not every libel that warrants a criminal
prosecution. To warrant prosecution the libel must be
sufficiently serious to require the intervention of the Crown
in the public interest.
. . .
. . . In R v Labouchere Lord Coleridge CJ emphasised that
both Hawkins and Lord Kenyon had regarded the criminality of
libels on private persons as their tendency to disturb the
public peace. Though the issue in that case was whether or
not leave should be given to file a criminal information (a
remedy now abolished), Lord Coleridge's view was plainly that
a libel had to be so `cruel and outrageous' as to make it a
matter which called for the interference of the court in the
defence of the public interest. While, therefore, it was
almost invariably said that the criminality of libel arose
from the tendency to disturb the public peace, evidence was
not necessary to establish the existence of the tendency: the
gravity of the libel was the best evidence. The logic of the
law was finally exposed by du Parcq J in R v Wicks. In giving
the judgment of the court, he said that a prosecution ought
not to be instituted `when the libel complained of is of so
trivial a character as to be unlikely either to disturb the
peace of the community or seriously to affect the reputation
of the person defamed'. It is plain from the passage in the
judgment where these words appear that the learned judge was
emphasising that it is the gravity of the libel which matters.
The libel must be more than of a trivial character: it must be
such as to provoke anger or cause resentment. The emphasis of
the passage, as Wien J recognised in Goldsmith v Pressdram Ltd
is on the character of the language used. In my judgment, the
references in the case law to reputation, outrage, cruelty or
tendency to disturb the peace are no more than illustrations
of the various factors which either alone or in combination
contribute to the gravity of the libel. The essential feature
of a criminal libel remains, as in the past, the publication
of a grave, not trivial, libel.
In my judgment in relation to this trial dated
February 6, 1995, I have reviewed the law of defamatory libel
at some length and I do not propose to reiterate it here. I
concluded that under s. 300 of the Criminal Code one of the
elements which the Crown must prove is that the defamatory
libel was false. The accused need not prove that it was true
nor that it was for the public benefit. I also held that ss.
611 and 612 of the Criminal Code set out the procedures to be
followed but do not create a reverse onus on the accused. The
effect of these provisions is to put the Crown on notice of
his or her defence.
The accused obtained a great deal of information and
material which led them to conclude that a boy was sexually
involved with his young sisters. These children were taken
under the care of Social Services. They were first placed in
one foster home. Because the foster mother was unable to
control the boy she reported it to Social Services. As a
result, the boy was initially separated from his sisters and
later was reunited with his sisters in a second foster home
where the foster parents tried various means such as tying
bedroom doors shut and using buzzers to keep the boy from his
sisters. All of this was being done under the supervision of
Social Services.
The police officer was assigned to investigate the
alleged sexual abuse of these three children by their parents
and others.
An objective reading of the words on the placards
carried by the accused would lead one to believe that the
officer had a "touching problem" - that he "allowed or helped
with the rape and sodomy of an 8 year old" - that he "helped
or took part in the rape and sodomy of an 8 year old" - that
certain papers "prove he allowed his witness to rape" - that
he "allowed the false arrest and detention of Mrs. Lucas with
a falsified information".
In determining whether the accused knew that the
defamatory libel was false the objective test must be applied.
In this case the accused testified that they believed that
what was published on the placards was true. They are applying
a subjective test.
Applying the objective test I find that the messages
on the placards were false and the accused should have known
them to be false. The accused published defamatory libel by
insinuation.
The Crown has proven beyond a reasonable doubt all
of the essential elements of the offence charged. I find both
accused guilty as charged.
J.
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