VANCISE J.A. (In Dissent)

INTRODUCTION

The appellants, [D.] R., [H.] R. and [D.] W.,
were jointly charged with having committed sexual assault,
assault causing bodily harm and with having committed acts
of gross indecency on the three children of [D.] R. and
[H.] R. Given the nature of the charges and the findings
of the trial judge it is necessary to set out the
particulars of the counts in the indictment in their
entirety.

The appellants were jointly charged with having
committed sexual assault upon the three infant children,
[M.L.R.], [M.M.R.] and [K.J.R.], and of having committed an
act of gross indecency as follows:
1.between the 1st day of January, A.D. 1993 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit a sexual assault upon [M.L.] R. contrary to
the provisions of the Criminal Code;

2.between the 1st day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit a sexual assault upon [K.J.] R. contrary
to the provisions of the Criminal Code;

3.between the 1st day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit a sexual assault upon [M.M.] R. contrary to
the provisions of the Criminal Code;

4.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit an act of gross indecency with [M.L.] R. by
having the said [M.L.] R. touch the private parts
of the accused contrary to Section 157 of the Criminal
Code;

5.between the 1st day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and at
the District of Laird in the Province of Saskatchewan did
commit an act of gross indecency with [M.M.] R. by
having the said [M.M.] R. touch the private parts of
the accused contrary to Section 157 of the Criminal Code;

6.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan that they did in committing an
assault upon [M.M.] R. use a weapon to wit a knife
contrary to the provisions of the Criminal Code.

[D.] R. and [H.] R., were charged with acts of
gross indecency and assault causing bodily harm as follows:

7.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon and the
District of Laird in the Province of Saskatchewan did
commit an act of gross indecency with [K.J.] R.
by having the said [K.J.] R. touch the private
parts of the accused contrary to Section 157 of the
Criminal Code;

8.between the 1st day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
[M.L.] R. cause bodily harm to him contrary to the
provisions of the Criminal Code;

9.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
[K.J.] R. cause bodily harm to her contrary to
the provisions of the Criminal Code;

10.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
[M.M.] R. cause bodily harm to her contrary to the
provisions of the Criminal Code.

The appellant, [H.] R., was also charged with assault
while using a weapon as follows:

11.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
[M.L.] R. use a weapon to wit a knife, contrary to
the provisions of the Criminal Code;

12.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did in committing an assault upon
[K.J.] R. use a weapon to wit a knife, contrary
to the provisions of the Criminal Code;

and with incest as follows:

13.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon in the
Province of Saskatchewan did have sexual intercourse with
[M.L.] R., while knowing that the said [M.L.] R.
was her son, contrary to the provisions of the
Criminal Code.

The appellant, [D.] R., was charged with incest as
follows:

14.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon, in the
Province of Saskatchewan did have sexual intercourse with
[K.J.] R. while knowing that the said [K.J.] R.
was his daughter, contrary to the provisions of
the Criminal Code;

15.between the lst day of January, A.D. 1983 and the 31st
day of December, A.D. 1989 at the City of Saskatoon, in the
Province of Saskatchewan did have sexual intercourse with
[M.M.] R., while knowing that the said [M.M.] R.
was his daughter, contrary to the provisions of the
Criminal Code.

They were convicted after trial by judge alone as
follows. [D.] R. was convicted of the counts 1, 2, 3, 9
and 10. The trial judge had reasonable doubt about the
remaining counts with which he was charged and they were
accordingly dismissed. [H.] R. was convicted of counts 1,
2, 3, 8 and 11 and the remaining charges against her were
dismissed. [D.] W. was convicted of counts 1, 2 and 3
and the balance of charges against him were dismissed.

FACTS

It is sufficient at this stage to set out the factual
chronology. Details of the children's testimony and the
testimony of others relating to the specific charges will
be dealt with at length when considering the specific
grounds of appeal.

The appellants, [D.R.] and [H.] R., formerly married
to one another, communicate only through sign language.
They had three children none of whom are either deaf or
mute. [M.L.R.] was born in 1979 and the twins, [M.M.R.] and
[K.J.R.], were born in 1982. The couple had difficulty
raising the children and the Department of Social Services
was involved at an early stage. The Department was
contacted in 1983, after one of the girls was admitted to
hospital and appeared to be suffering from malnutrition. A
parent aid worked in the home with the parents to assist
with raising the children. The mother, [H.] R., had
little interest in the children. She had an alcohol
problem and spent a good deal of time outside the home.
For all intents and purposes, she had effectively withdrawn
from the marriage and, from the home, in December of 1985.
She and the appellant [D.] W. currently reside together.
A supervision order was made in 1986.

The father, [D.] R., was not able to care for the
children and they were removed from his care in February,
1987 and placed in a foster home with Anita Klassen. From
that point on, [H.] R. and [D.] W. were only permitted
supervised visits with the children. The children
continued to have unsupervised weekend visits with their
natural father, [D.] R., until September of 1987. Those
visits ended when the foster mother, Anita Klassen, noted
what appeared to be blood spots on [M.M.R.]'s panties after
the child returned from an unsupervised visit with [D.]
R. She immediately called Mobile Family Crisis, who
instructed her to take the child to St. Paul's Hospital.
The child was later examined by Dr. McKenna, who found a
laceration along the child's labia minora. [M.M.R.] told
the foster mother and Dr. McKenna "deaf daddy spanked my
bum, he put his finger in my bum".

The accusations of sexual assault against the natural
parents and [D.] W. were not made until long after this
incident and arose out of a police investigation of
allegations of sexual assault of these children by members
of the foster family. Allegations of sexual abuse were
made against Mr. and Mrs. Klassen and a number of their
relatives including Mr. Klassen's father, with the result a
number of charges were laid against Mr. Klassen, Sr. and
other members of the Klassen family. Ultimately, Mr.
Klassen, Sr. pled guilty to sexually assaulting the
children and was sentenced to four years in a federal
penitentiary. The charges against other members of the
Klassen family were apparently stayed in return for the
guilty plea of Mr. Klassen, Sr.

During the investigation, the children gave statements
about their birth parents having killed, cooked and eaten
babies, dogs and cats. They also told of being made to eat
feces and drink urine and blood. No physical or
confirmatory evidence of dead animals or dead babies was
found. All three children accused their birth parents and
[D.] W. of sexual abuse. They also accused at least
twenty other adults, including their grandparents, with
having abused them sexually. No other charges were laid
against the twenty other adults, other than the appellants,
who allegedly sexually abused them.

The trial lasted some 22 days and, given the
dysfunctional state of the three infant complainants, was
conducted under extremely difficult circumstances. The
birth parents, [D.R.] and [H.] R. are deaf mutes who
communicate only through sign language which further
complicated the conduct of the trial. The taking of the
evidence from the three infant children was difficult and
time consuming, was at times bizarre and strained the
bounds of credibility. Their conduct while testifying was
at times bizarre. They tired quickly and their attention
span was limited. The three appellants were placed behind
a screen during the testimony of the three infant
complainants. The trial judge and all counsel treated the
children with extreme care and courtesy and attempted to
put them at ease when they testified. By and large the
approach worked and the children were able to testify about
their versions of the alleged offences. The trial judge
and the lawyers who dealt with the children during the
trial are to be congratulated for the sensitivity they
displayed to the children, who are clearly traumatized and
dysfunctional.

Queen's Bench Judgment

The trial judge was satisfied beyond a reasonable
doubt that each of the three children suffered sexual abuse
from each of the three accused. She stated:
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. I am satisfied beyond a
reasonable doubt that each of the three children suffered
sexual abuse from each of the three accused. I am,
however, left with a reasonable doubt, which must be
resolved in favour of the accused, 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 [M.M.R.] or [K.J.R.] by [D.] R.
or [D.] W., or upon [H.] R. by [M.L.R.]. [FOOTNOTE 1]

She made these findings in spite of "contradiction and
lack of memory about many items...". In her opinion, in
spite of the contradictory evidence, the testimony of the
children was consistent when they spoke about the bad
touching done to them.

The appellants were sentenced as follows:

The appellant, [H.] R. was sentenced to five years
concurrent one to another on counts 1, 2 and 3 and one
year, concurrent to each other and consecutive to counts 1,
2 and 3, on counts 8 and 11, for a total sentence of six
years. The appellant, [D.] R. was sentenced to five
years concurrent on each of counts 1, 2 and 3 and one year,
concurrent to each other but consecutive to counts 1, 2,
and 3, on counts 9 and 10, for a total of six years. The
defendant, [D.] W. was sentenced to three years
concurrent on each of counts 1, 2 and 3.

The appellants appeal both conviction and sentence.

Issues

All three appellants raised a number of grounds of
appeal which can be summarized as follows:

1.The verdict of the trial judge is unreasonable or cannot
be supported by the evidence;
2.The trial judge failed to examine the infant complainants
adequately in accordance with the requirements of s. 1 of
the Canada Evidence Act to determine whether they were
competent to testify;
3.The trial judge erred in admitting previous out-of-court
statements of [M.M.] R. as proof of facts contained
therein;
4.The trial judge erred in limiting the cross-examination
of an expert witness, Carol Bunko-Rys and in refusing the
defence permission to use video tapes and transcriptions of
the interview of children in cross-examination;
5.The trial judge refused to admit expert testimony of Dr.
M. Elterman, an expert concerning the development of memory
in children and the types of memory these children had
developed, a matter which went directly to the children's
credibility;
6.The trial judge erred in qualifying certain witnesses as
experts concerning the behaviour aspects of sexually abused
children;
7.The trial judge erred in failing to permit the
appellant's counsel to cross-examine the foster mother,
Mrs. Thompson about the victim's prior and inconsistent
statements;
8.The appellant, [D.] W., contends the trial judge erred
in failing to open up the judgment to permit him to testify
on his own behalf.


PRELIMINARY MATTERS
Admission of Fresh Evidence on Appeal

Counsel for [H.] R. applied to have fresh evidence
admitted on the appeal. Counsel relied on Palmer v. The
Queen [FOOTNOTE 2] and R. v. Osiowy [FOOTNOTE 3]to adduce evidence of the
conviction of Peter Klassen, the father of the foster
mother, Anita Klassen, for sexually assaulting the three
victims while they were at the Klassen foster home. The
Crown did not oppose the application and the certificate of
conviction was therefore admitted as fresh evidence during
the hearing of the appeal. The evidence is relevant and
bears directly on the issue of whether the victims were
sexually assaulted and by whom. It is evidence which did
not exist at the time of the trial.

GROUNDS OF APPEAL
I propose to deal with issues 2 through 5 prior to
considering issue 1, i.e., whether the verdict is
unreasonable and cannot be supported by the evidence.
Given the result, it will not be necessary to deal with
issues 6, 7 and 8.

Section 1, Canada Evidence Act
Counsel for [D.] W. contends the trial judge erred
by failing to adequately determine whether the infant
complainants could rationally communicate the evidence
about the offences charged. The appellant, [D.] W.
questions their ability to adequately communicate the
evidence. He contends all three complainants, who were
very young at the time of the alleged offences, gave many
different versions and stories about what happened, much of
the specific allegations of wrongdoing were by rote and
they responded in identical terms to questions posed. W.
argues the trial judge failed to make the inquires
necessary to be satisfied the child witnesses could
communicate the evidence as required by s. 1(1)(b) of the
Canada Evidence Act. [FOOTNOTE 4]

The inquiry required by s. 1 of the Canada Evidence
Act was recently described by McLachlin J. in R. v.
Marquard (D.). [FOOTNOTE 5] There, the appellant argued the trial
judge was obliged by s. 1(1) to test the child's ability to
perceive and interpret events and to recollect them
accurately before permitting the child to testify. The
Crown, on the other hand, submitted only the ability to
communicate is required. Madam Justice McLachlin found the
real answer was somewhere between those extremes. She
stated:
Testimonial competence comprehends: (1) the capacity
to observe (including interpretation); (2) the capacity to
recollect; and (3) the capacity to communicate: McCormick
on Evidence (4th ed. 1992), vol. 1, at pp. 242-248; Wigmore
on Evidence (Chadbourne Rev. 1979), vol. 2, at pp. 636-638.
The judge must satisfy him- or herself that the witness
possesses these capacities. Is the witness capable of
observing what was happening? Is he or she capable of
remembering what he or she observes? Can he or she
communicate what he or she remembers? The goal is not to
ensure that the evidence is credible, but only to assure
that it meets the minimum threshold of being receivable.
The enquiry is into capacity to perceive, recollect and
communicate, not whether the witness actually perceived,
recollects and can communicate about the events in
question. Generally speaking, the best gauge of capacity
is the witness' performance at the time of trial. The
procedure at common law has generally been to allow a
witness who demonstrates capacity to testify at trial to
testify. Defects in ability to perceive or recollect the
particular events at issue are left to be explored in the
course of giving the evidence, notably by cross-
examination.

I see no indication in the wording of s. 1 that
Parliament intended to revise this time-honoured process.
The phrase "communicate the evidence" indicates more than
mere verbal ability. The reference to "the evidence"
indicates the ability to testify about the matters before
the court. It is necessary to explore in a general way
whether the witness is capable of perceiving events,
remembering events and communicating events to the court.
If satisfied that this is the case, the judge may then
receive the child's evidence, upon the child's promising to
tell the truth under s. 1(3). It is not necessary to
determine in advance that the child perceived and
recollects the very events at issue in the trial as a
condition of ruling that her evidence be received. That is
not required of adult witnesses, and should not be required
for children. [FOOTNOTE 6] [emphasis added]

The trial judge briefly inquired of each of the
complainants whether they understood the nature of an oath.
I have set out in full the questions the trial judge asked
each of the children and their responses, prior to having
them sworn:

1. [M.M.R.], questioned by The Court:

THE COURT: Hi. Are you comfy? That's a pretty good
seat, isn't it? [M.M.R.], how old are you?
A Ten.
THE COURT: And what grade are you in school?
A Five.
THE COURT: Grade five, that's very good. Do you
like school?
A M'hm.
THE COURT: You've been asked these questions before,
haven't you? Yeah. What I'm going to ask you really is
whether you understand what an oath is.
A M'hm.
THE COURT: You do? M'hm. And is it swearing on the
Bible?
A M'hm.
THE COURT: And promising to tell the truth?
A M'hm.
THE COURT: And do you know how important that is?
It's really serious, isn't it?
A M'hm.
THE COURT: First of all, it's serious of [sic]
you're talking to a judge, or a judge is sitting here,
because I have to hear the whole truth, don't I?
A M'hm.
THE COURT: Good. And you understand the meaning of
an oath?
A M'hm.
THE COURT: So that when you swear on the Bible you
will always tell the whole truth?
A M'hm.
THE COURT: M'hm. And what happens if you don't?
A You get punished by God.
THE COURT: M'hm. So you know that, don't you. And
so you will tell the whole truth?
A M'hm.
THE COURT: All right, I think she can be sworn in.
Is there any further questions anybody has? No? All
right. [FOOTNOTE 7]

2. [K.J.R.], questioned by The Court:

THE COURT: [K.J.R.], you like chewing gum, eh?
A Candy.
THE COURT: Oh, it's candy. Well, that's good,
because candy goes away after awhile, doesn't it?
A It's gone.
THE COURT: It's gone. Oh, good. So we can hear
you. How old are you, [K.J.R.]?
A Ten.
THE COURT: And do you go to school?
A Yeah.
THE COURT: And what grade are you in?
A Grade four.
THE COURT: And do you like school?
A Yeah.
THE COURT: Good. Do you go to church?
A Yes.
THE COURT: And you know about God?
A M'hm.
THE COURT: And you know what an oath is?
A Yeah.
THE COURT: It means promising God that you will tell
the truth?
A M'hm.
THE COURT: And you know that it would be very, very
bad if you didn't tell the truth after you took an oath,
wouldn't it?
A Yeah.
THE COURT: Do you know what would happen?
A You'd get punished from the judge and from God.
THE COURT: And so you're quite ready to take an
oath?
A M'hm.
THE COURT: And promise to tell all the truth?
A Yeah.
THE COURT: All right. [FOOTNOTE 8]

3. [M.L.R.], questioned by The Court:

THE COURT: Good morning, [M.L.R.].
A Morning.
THE COURT: Do you remember me?
A Yeah.
THE COURT: Good. It's been a few days since we saw
you?
A Yeah.
THE COURT: [M.L.R.], you know all about taking an oath,
don't you?
A Yeah.
THE COURT: You've taken an oath several times?
A Yeah.
THE COURT: And what does it mean?
A It means that you're promising to tell the truth
to God and the Court.
THE COURT: And it's very serious if you break that
promise, isn't it?
A Yes.
THE COURT: You know that. Okay, [M.L.R.], I see no
reason why you shouldn't be sworn. Are there any other
questions?
MR. MIAZGA: None from me.
THE COURT: All right. [FOOTNOTE 9]

In this case the trial judge was satisfied each of the
complainants could be sworn. She engaged each of them in
conversation, and while not asking questions beyond those
which dealt with their understanding of the taking of an
oath and the obligation to tell the truth, these
complainants had testified at the preliminary inquiry and
were very familiar with the trial process. In
circumstances like this it is worth repeating the comments
of Dickson J. (as he then was) in Regina v. Bannerman. [FOOTNOTE 10]
He stated that a trial judge's discretion in determining a
child is competent to testify should not be the subject of
excessive second guessing by appellate courts and, unless
the determination is manifestly wrong, should not be
interfered with.

The appellant argues the trial judge failed to comply
with the obligation she had under s. 1 to determine whether
these children were competent to communicate with the
result the evidence was inadmissible. The appellants did
not challenge the competence of these complainants to
testify or their capacity to understand the effects of an
oath. In truth, it is not the ability to communicate which
is at issue here, but rather the frailty of the evidence.
The essence of the complaint is the trial judge failed to
instruct herself to be prudent in accepting the evidence of
these children in the absence of some confirmatory
evidence.

In my opinion, the trial judge discharged her
responsibility under s. 1 of the Canada Evidence Act. This
ground of appeal must therefore fail.

Admissibility of out-of-court statements made by [M.M.R.].
Counsel for [D.] R. contends the trial judge erred
in admitting a verbal out-of-court statement made by
[M.M.R.] to the foster mother, Anita Klassen, and an out-
of-court statement made to Dr. McKenna, an attending
physician, as proof of the truth of the contents of the
statements. The statement made to Anita Klassen was
allegedly made the day of the alleged incident. The child
stated, after returning from an unsupervised weekend visit
to her natural father's residence, "daddy touched me". The
second statement was made a day later when she was examined
by Dr. McKenna for the express purpose of determining
whether or not a sexual assault had occurred. She told Dr.
McKenna "my deaf daddy spanked my bum and then he put his
finger in my bum, it hurt." [M.M.R.] testified at the
trial but could not remember being examined by Dr. McKenna
or remember the statement made to Anita Klassen.

The trial judge admitted the two statements during the
trial, subject to ruling whether they were hearsay or would
be accepted as proof of their contents. At the conclusion
of the Crown's case, she made the following ruling:
I find on the basis of the evidence before me that the
admission of these two out-of-court statements alleging
sexual abuse, is reasonably necessary, and that the
evidence in regard to them bears sufficient entity of
reliability. The child, at the age of ten, [M.L.R.] -- I'm
sorry, [M.M.R.], the child at the age of ten, testified as
to numerous incidents that occurred when she was between
three and ten years of age. Her therapist testified as to
the extent of the child's traumatization. Her anxiety and
stress during the trial were obvious, as was her awareness
of the presence of her birth parents and [D.] W. behind the
screen. [M.M.R.], in these circumstances, was either
unable to compel herself to recall the events in question,
or was mentally incapable of recalling those events and
giving her evidence in court. It is therefore reasonably
necessary to admit the statements in order to obtain a full
and candid account of the child's version of the
occurrence. The presence of what appeared to be blood on
the panties focused the attention of Anita Klassen to the
child's explanation, which was not an accusation by the
child. And her immediate action in calling the Mobile
Crisis Centre, and taking the child to the hospital
indicates that she noted the explanation accurately. Dr.
McKenna was meticulous in noting the child's exact words.
The child had no reason to give anything but what she
believed to be the true explanation to Anita and to Dr.
McKenna. Both statements satisfy the requirement set out
in the Kahn case, and will accordingly be admitted as proof
of the truth of the contents. The matter of the weight to
be attached to the statements as to, and their reliability
is as with all other admissible evidence, to be argued
later. [FOOTNOTE 11]

The trial judge admitted both out-of-court statements,
stating in her judgment:
I accept the evidence of Anita Klassen and Dr. McKenna
as to the statement made by [M.M.R.] after a visit to her
father's home in September of 1987. The statement was made
to Anita Klassen within a few hours of her return on
discovery of what appeared to be bloodspots on [M.M.R.]'s
panties, and to Dr. McKenna the day after. Dr. McKenna
noted in writing the words of the child: "My deaf daddy
spanked my bum, then he put his fingers in my bum, it
hurt". Dr. McKenna found a laceration along [M.M.R.]'s
labia minora which she testified could have been caused by
a fingernail or any sharp or pointed object and which would
have disappeared by three weeks without any scarring. I
accept the statement made by [M.M.R.] as true.

Dr. McKenna had extensive experience with sexually-
abused children, and her evidence was that for most
children, bum means rectum. Where they go to the bathroom
for urination is the vagina, and that they will use the
terms indiscriminately for all lower private parts. It was
her experience that although prepubertal children may
intellectually know that they have a vagina and may even
know where it is, they have never used it or seen it, so
that when they say they're having intercourse, it may apply
merely the placing of the penis along the perineum and
along the thigh of the child and masturbating in that way.
The hymen would not be damaged in such a case. She found
[M.M.R.]'s hymen intact. [FOOTNOTE 12]

She accepted that the two out-of-court statements of
[M.M.R.] satisfied the criteria of reasonable necessity and
reliability.

[D.] R., relying on the principles enunciated in R.
v. Khan [FOOTNOTE 13], contends the trial judge erred in admitting the
statements. To fully assess this contention, it is
necessary to examine not only [M.M.R.]'s evidence, but the
evidence of both Dr. McKenna and Anita Klassen. This is
consistent with the approach recommended and adopted by
Doherty J.A. in Khan v. College of Physicians and Surgeons
of Ontario et al [FOOTNOTE 14] in deciding whether an out-of-court
statement of a child in a sexual assault case should be
admitted. In most cases, it will be necessary to hear the
child's evidence before the court can determine whether it
is reasonably necessary to admit the evidence of the out-
of-court statement. In this case the trial judge heard
[M.M.R.]'s evidence and the evidence of both Anita Klassen
and Dr. McKenna, prior to ruling on the admissibility of
the out-of-court statement.

Anita Klassen testified about what happened after the
children's visit to [D.] R.'s home for the weekend:

AAnd the girls went upstairs, took their clothes off,
was having a bath. I was in the kitchen, I went to do
dishes. I went back upstairs to check on them and wash
their hair, and I noticed there was some blood on
[M.M.R.]'s panties.
QAnd what did that blood look like to you?
ALike blood.
QI guess maybe that was a dumb question to ask in some
ways. What -- I meant what did it look like in terms of
its colour or age?
...
QAnd what did you do when you saw these panties?
AI just asked [M.M.R.] what happened.
QAnd what did she say?
AShe said, "My daddy touched me."
QAnd was there any further conversation with her at
that time?
ANo, there wasn't.
QWhat did you do?
AI went downstairs, I talked to my husband, I phoned
Mobile Crisis, 'cause it was on a Sunday. And they told me
to take her to the St. Paul's Hospital to the doctor and
get her checked.
QNow, did you look at her private parts at that time,
when they were in the bathtub?
AYes, I did.
QAnd I understand they would obviously not be wearing
anything at that moment?
ANo, they were having -
QWhat did you see about her private parts?
ARedness.
QAnd did you see any blood there?
AI can't recall today. [FOOTNOTE 15]

Dr. Eleanor McKenna examined [M.M.R.] the following
day. She testified:
QI understand that in connection with this type of
incident you saw [M.M.] R. back in 1987, is that correct?
AThat's correct.
QWhat day did you see her in 1987?
ASeptember the 22nd.
QAnd who brought her into your office?
AHer foster mother.
QDo you recall the foster mother's name?
ANot offhand, no, I'm sorry.
QAnd what was the complaint about at that particular
time, in terms of injuries?
AThe foster mother had brought her in because she was
concerned about some bleeding that she had found in the
child's panties.
QAnd did she bring any physical evidence of the
bleeding for you?
AYes, she did.
QWhat was that?
AShe brought her underpants.
QOkay, and you've kept those?
AYes, we have, on the chart.
...
QMR. MIAZGA: Based on that information, then, did you
meet [M.M.] R.?
AYes, I did.
QAnd can you just describe what your initial
assessment of her was?
AOkay. [M.M.R.], as I said, was brought in because
her foster mother had found some blood on her panties. And
[M.M.R.], herself, told me that her deaf daddy did it. She
muttered something about put his finger in her bum and it
hurt. I have her exact words in my chart, if you would
like me to refer to them.
...
QOkay. And I understand, then from what you said that
you did ask her about the bleeding that was described to
you by the foster mother?
AYes, I did.
QAnd did you make specific note of what she said to
you at that time?
AYes, I did.
QAnd would you have the exact words available today?
AYes, I do.
QCould you relate those to the Court?
A"My deaf daddy spanked my bum, then he put his
fingers in my bum. It hurt."
QOkay, and did you examine the panties that have been
marked as P-14?
...
QCan you go on, then, and describe what else you saw
as part of your examination of her genitalia?
AAt that time I didn't see any particular redness or
discharge, however what I did see was a shallow laceration,
approximately two centimetres long, along the left labia
minora.
QAnd what would that indicate to you as a
paediatrician?
AWell, a laceration is a shallow cut of any kind. It
could have been -- this area is protected. The child could
have traumatized that area, it's certainly possible had she
had a straddle injury, but when I asked her about it she
said no.
QAnd is that when she made the statement referring to
her deaf daddy?
AYes.
QIs -- what would this injury be consistent with,
then, aside from a straddle injury such as you've
mentioned?
AIt was consistent with either a fingernail scratch,
which is the usual thing, or from any type of sharp
instrumentation. [FOOTNOTE 16]
...

The appellant, [D.] R., contends the statements made
by [M.M.R.] to both Anita Klassen and Dr. E. McKenna should
not be admitted because they do not meet the requirements
of necessity and reliability.

The reception of the out-of-court statements of
children was considered by the Supreme Court of Canada in
Khan. In that case a three and one-half year old child
accompanied her mother to the family doctor where the
mother was to undergo a general physical examination and
the child was to receive a routine immunization. The child
was examined by Dr. Khan in the presence of her mother.
Dr. Khan and the child were left alone in the doctor's
private office for about five minutes while her mother
changed in an adjacent examining room. The child remained
alone in the office while the mother was examined by Dr.
Khan in the examining room. When the mother came back to
the office she noticed her daughter picking at a wet spot
on the sleeve of her track suit. Some fifteen minutes
after leaving the doctor's office the mother and child had
the following conversation:
Mrs. O So you were talking to Dr. Khan, were you? What
did he say?

T.He asked me if I wanted a candy. I said yes. And do you
know what?

Mrs. O. What?

T.He said "open your mouth". And do you know what? He put
his birdie in my mouth, shook it and peed in my mouth.

Mrs. O. Are you sure?

T. Yes.

Mrs. O.You're not lying to me, are you?

T.No. He put his birdie in my mouth. And he never did give
me candy. [Khan [1990] 2 S.C.R. 531 at p. 534]

The mother did not ask for further information. She
let the matter drop until later.

McLachlin J. adopted a flexible approach to hearsay
based on principle and the policy considerations underlying
the hearsay rule enunciated in Ares v. Venner. [FOOTNOTE 18] The
admissibility of hearsay evidence is determined with
reference to two general requirements: necessity and
reliability. She stated:
The first question should be whether reception of the
hearsay statement is necessary. Necessity for these
purposes must be interpreted as "reasonably necessary".
The inadmissibility of the child's evidence might be one
basis for a finding of necessity. But sound evidence based
on psychological assessments that testimony in court might
be traumatic for the child or harm the child might also
serve. There may be other examples of circumstances which
could establish the requirement of necessity.

The next question should be whether the evidence is
reliable. Many considerations such as timing, demeanour,
the personality of the child, the intelligence and
understanding of the child, and the absence of any reason
to expect fabrication in the statement may be relevant on
the issue of reliability. I would not wish to draw up a
strict list of considerations for reliability, nor to
suggest that certain categories of evidence (for example
the evidence of young children on sexual encounters) should
be always regarded as reliable. The matters relevant to
reliability will vary with the child and with the
circumstances, and are best left to the trial judge. [FOOTNOTE 19]

Those general principles are, however, subject to ensuring
the accused's interests are safeguarded and subject always
to the weight to be accorded to such a statement.

The Supreme Court of Canada again considered the issue
in R. v. Smith, [FOOTNOTE 20] where McLachlin J's approach in Khan was
heralded as a "triumph of a principled analysis over a set
of ossified judicially created categories". [FOOTNOTE 21] The decision
signalled, per Lamer, C.J.C. "an end to the categorical
approach to the admission of hearsay evidence." Hearsay is
now admissible on a principled basis, the governing
principles being the reliability of the evidence and
necessity. He continued:
The criterion of "reliability" -- or, in Wigmore's
terminology, the circumstantial guarantee of
trustworthiness -- is a function of the circumstances under
which the statement in question was made. If a statement
sought to be adduced by way of hearsay evidence is made
under circumstances which substantially negate the
possibility that the declarant was untruthful or mistaken,
the hearsay evidence may be said to be "reliable", i.e., a
circumstantial guarantee of trustworthiness is established.
The evidence of the infant complainant in Khan was found to
be reliable on this basis.

The companion criterion of "necessity" refers to the
necessity of the hearsay evidence to prove a fact in issue.
Thus, in Khan, the infant complainant was found by the
trial judge not to be competent to testify herself. In
this sense, hearsay evidence of her statements was
necessary, in that what she said to her mother could not be
adduced through her. It was her inability to testify that
governed the situation. [FOOTNOTE 22]

The principles outlined by McLachlin J. were discussed
and applied by Doherty J.A., for the court, in Khan v. The
College where the out-of-court statement of the child
victim in Khan was considered, this time in the context of
a disciplinary hearing before the College of Physicians and
Surgeons. (The reasons in Smith were released one week
after Khan v. The College. As a result, Doherty J.A. was
deprived of the reasons and further analysis of the Supreme
Court of Canada when writing his judgment.) The child
complainant testified in the proceedings before the
disciplinary committee of the College. She was unable to
recall details of the event which formed the subject matter
of the complaint or what she had told her mother. She was
three and one-half years old at the time of the incident
and almost eight years old at the time of the hearing. The
child could remember that Dr. Khan placed his penis in her
mouth, but almost nothing else. The disciplinary committee
admitted this statement made by the child to her mother 20
minutes after the incident.

In this case, [M.M.R.] could not remember the incident
referred to by Anita Klassen or Dr. McKenna despite
counsel's efforts to aid her. Counsel for the appellants
did not object to these attempts, or in particular, the
suggestion by Crown counsel that she had been examined by
Dr. McKenna after the discovery of the spot of blood on her
panties. She was asked whether she knew Dr. McKenna and
she said she did not remember her or remember being
examined by her. [FOOTNOTE 23]

Thus, we have a situation where the child witness has
testified but is unable to recall any of the facts
surrounding the incident. The first issue is whether
[M.M.R.]'s testifying renders the statements she made to
Anita Klassen and to Dr. McKenna inadmissible because the
element of necessity has been removed. That issue and, in
particular, the comment of McLachlin J. in Khan, that the
issue of necessity may not arise if the child testifies,
was fully considered by Doherty J.A. in Khan v. The
College. He noted that the Ontario Court of Appeal in R.
v. Collins24 had previously refused to admit the out-of-
court statement where a child had testified. In his
opinion, Collins stood for no more than the nature of the
child's evidence in that specific case and did not preclude
the admissibility of an out-of-court statement where a
child testified. In his opinion, with which I agree, the
most one can say is, ". . . the child's viva voce evidence
will `probably' render it unnecessary to receive the out-
of-court statements in `most' cases". [FOOTNOTE 25]

The contention there be an automatic exclusion of an
out-of-court statement when the child testifies should be
rejected as it is inconsistent with the flexible principled
approach adopted in Ares v. Venner followed in Khan and
Smith. In accordance with the comments of Lamer C.J.C. in
Smith, "necessity" must be given a flexible definition
capable of encompassing diverse situations; the categories
are not closed.

In establishing necessity, the fact the child
testified is relevant to, but not determinative of, the
admissibility of the out-of-court statement. The
assessment of necessity which McLachlin J. describes as
"reasonably necessary" [FOOTNOTE 26]
in a child sexual assault case is the need to have the
child's version of the events pertaining to the alleged
assault before the court. It may well be that the out-of-
court statement must be before the court to obtain a full
version of the facts.

Doherty J.A., in Khan v. The College, listed seven
factors which he suggests could be relevant and noted it
would be unwise to make an exhaustive list of relevant
factors. Those seven factors are:
1.The age of the child at the time of the alleged event and
at the time he or she testifies;

2.The manner in which the child gives his or her evidence,
including the extent to which it is necessary to resort to
leading questions to elicit answers from the child;

3.The demeanour of the child when he or she testifies;

4.The substance of the child's testimony, particularly as
it reflects on the coherence and completeness of the
child's description of the events in question;

5.Any professed inability by the child to recall all or
part of the relevant events;

6.Any evidence of matters which occurred between the event
and the time of the child's testimony which may reflect on
the child's ability to provide an independent and accurate
account of the events in issue;

7.Any expert evidence relevant to the child's ability at
the time he or she is required to give evidence to
comprehend, recall or narrate the events in issue.


Turning now to the application of the principles in
this case, [M.M.R.] testified but was unable to remember or
testify about the incident in question. She did not
remember the incident even when specifically directed by
Crown counsel to the events surrounding the alleged sexual
assault by her deaf father. She was specifically asked
about blood being found on her panties and about being
examined by Dr. McKenna, but was unable to recall either
fact. She was unable to recall being examined by Dr.
McKenna with the result that there was no way to test the
reliability of the statement.

The trial judge heard the evidence of [M.M.R.] and two
other complainants, [M.L.R.] and [K.J.R.], as well as the
two out-of-court statements, before ruling on the
admissibility of the out-of-court statements made by
[M.M.R.].

If the evidence of [M.M.R.] concerning this incident
was going to be before the court, it is clear it had to
come from someone other than the child. [M.M.R.] could
remember neither the incident nor being examined by
Dr. McKenna. The Crown contended that, if the evidence of
Anita Klassen and Dr. McKenna concerning an allegation of
sexual assault by the appellant [D.] R. was not to go in,
there was no other evidence as to what happened. The Crown
relies on the fact the out-of-court statement was allegedly
made within a few hours of the incident and would be more
reliable than a statement made later. The Crown also
relies on the fact the alleged incident was at least five
years old and occurred when [M.M.R.] was approximately five
years old. Crown counsel conceded that, if the child could
testify about the incident, the Crown would not need to
rely on the out-of-court statement. The situation here is
not identical to the second Khan trial where the child
testified but could not remember all the information given
in the out of court statement. Here the child testified
but could not recall the incident.

Does this statement fall into the category of one
"necessary to the prosecutor's case" as described by Lamer
C.J.C. in Smith (See also R. v. F.(G.)) [FOOTNOTE 27] and therefore
outside the criteria?

The question of reasonable necessity to receive an out
of court statement has been considered in R. v. Aguilar [FOOTNOTE 28]
where the child testified and Katzman J.A., following Khan
v. The College, found the determination of whether the
statement is admissible is an ad hoc one. In Aguilar, the
child testified at trial but did not provide all of the
details contained in the out of court statement. Katzman
J.A. compared the circumstances in Aguilar to those in Khan
v. The College. He considered the age of the child at the
time of the offence, the delay between the incident and the
trial, the child's ability to recall certain events and,
the lack of expert testimony concerning whether the failure
to recall certain evidence was consistent with the expected
limitation to remember and articulate traumatic events. He
concluded, in the circumstances of that case, the criterion
of necessity had not been established.

Here, [M.M.R.] was not capable of remembering or
testifying about the event. She was four or five years old
when the alleged event took place and there was a five year
delay between the alleged event and the trial. In addition
she had been interviewed many times concerning the alleged
sexual assault and others alleged to have occurred. The
child's therapist testified as to the traumatic effect of
the trial in the investigation on the child. [M.M.R.] was
keenly aware the appellants were in the courtroom on the
other side of the screen. The child's age, the time
between the event and the trial, including the number of
times she had testified or been questioned and the
traumatism, were all cited as reasons for finding the out-
of-court statement was reasonably necessary to obtain a
"full and candid account of the child's version of the
occurrence." [FOOTNOTE 29] In my opinion, the criterion of reasonable
necessity was satisfied.

The second criterion is more troublesome. The trial
judge found the presence of what appeared to be blood on
[M.M.R.]'s panties, the fact the foster mother called the
Mobile Family Crisis Centre and took the child to the
hospital as well as the evidence of Dr. McKenna, who
meticulously noted the comments made by [M.M.R.], were
indices of reliability. With respect, the actions and
memory of the person to whom the statement was made are not
what is crucial. What is crucial is whether the statement
itself is trustworthy.

The criterion of reliability was described by Lamer
C.J.C. in Smith as:
The criterion of "reliability" -- or, in Wigmore's
terminology, the circumstantial guarantee of
trustworthiness -- is a function of the circumstances under
which the statement in question was made. If a statement
sought to be adduced by way of hearsay evidence is made
under circumstances which substantially negate the
possibility that the declarant was untruthful or mistaken,
the hearsay evidence may be said to be "reliable", i.e., a
circumstantial guarantee of trustworthiness is established.
The evidence of the infant complainant in Khan was found to
be reliable on this basis. [FOOTNOTE 30] [emphasis added]

Is there a circumstantial guarantee of
trustworthiness? When we examine the totality of the
evidence we have the evidence of [M.M.R.] that she and
[M.L.R.] would lie to grown-ups regarding their sexual
activity. The trial judge was also asked to and did make a
ruling concerning an out-of-court statement made by [M.L.R.]
pertaining to the same incident at the natural parents'
home. She rejected [M.L.R.]'s out-of-court statement which
dealt with the same incident because it did not "satisfy
the requirement of reliability, and will not, therefore be
admitted as proof of the contents thereof." [FOOTNOTE 31]


She did not elaborate. [M.L.R.] admitted to having had
sex with both his sisters, [K.J.R.] and [M.M.R.], in the
bathroom at his father's house on the last visit. When he
was questioned about the incident he stated:
QOkay. Now, do you know what I mean by the bad
touching?
AYes.
QAnd it's sexual stuff, okay?
AYes.
QYou tell me in your own words. I don't want to be --
I don't want anyone to say to me afterwards that you're
putting words in this boy's mouth. You tell you what you
mean by bad touching.
ASexual abuse.
QAnd when -- how long -- has that been going on in the
past between you and your sisters?
AYes.
QOkay, and I'm talking about [K.J.R.] and [M.M.R.], okay.
AYes.
QWe're not talking about your foster sisters, okay?
Okay. Now, about how long has that been going on for? Or
had it been going on for?
AEver since the girls were three and I was five.
QOkay. So that means that just between the kids, now
we're not talking grown-ups, just between the kids --
AAll right.
Q-- there was bad touching between you and [M.M.R.],
even happened sometimes when you lived at your birth
parents, is that right?
AUh-huh.
QNow, can you remember how it started?
ANo, I can't.
QOkay. Do you remember who did the bad touching
first, whether it would have been --
ANo.
Q-- you -- can't remember whether it was -- which of
you three?
ANo.
QOkay. And when it started, was it just fingering, or
--
AUsing the penis and the fingers.
QYou used the penis too, eh?
AYes.
QAnd this was even when you lived at your birth
parents, is that right?
AYes.
QOkay. And you didn't like to get caught for that
sort of thing?
ANo.
QOkay. Even by your birth dad, right?
ANo.
QOkay. And you did some of that in the bathroom with
the girls?
AWhat?
QDid you do any of that in the bathroom with the
girls?
AYeah.
QOkay, and you could lock the door in the bathroom, is
that right?
AYes.
QOkay. Most of that occurred at Streeb (ph), is that
the name of street?
AStreb.
QStreb, sorry. Most of it occurred there?
AYes.
QAnd it sometimes happened when you visited your dad
on Avenue C, is that right?
AYes.
QOkay.
AYes, yes.
QOkay, and he caught you there too, once, didn't he?
AWho?
QYour dad?
AWhich dad?
QBirth dad?
AYes.
QOkay, he caught you doing something in the bathroom?
AYeah.
QAnd it was with [M.M.R.], wasn't it? Well, don't let
me -- was it with [M.M.R.]?
AI don't know.
QOkay. And when you did the bad touching with -- when
you were caught in the bathroom, what type of bad touching
was it?
ALike sexual abuse.
QYeah, was it with your finger?
AAnd penis.
QAnd in her vagina area?
AYes.
QOkay. So you remember ever hurting [M.M.R.] doing
that?
ANo.
QOkay. Can you tell when you hurt them and when you
don't hurt them?
ANo.
QOkay. And about how many times would that have
happened when you visited your dad on Avenue C?
AEvery time we visited dad.
QEvery time?
AEvery time we visited there.
QOkay. Every time you visited there, you'd touch
[M.M.R.]?
AAnd [K.J.R.].
QOkay. Now, sometimes you'd -- would any of the girls
ever tell on you when you did that?
ASometimes.
QOkay. And sometimes you'd try to make them stop
telling on you, right? [FOOTNOTE 32]

[M.M.R.] testified [M.L.R.] hurt her in her vagina.
She stated:
AHe put his penis in my vagina and it would get all
red, and it would hurt.
QOkay. Did [M.L.R.] ever put anything else in your
vagina besides his penis?
AAnd his finger.
QAnything else besides his penis or his finger? [FOOTNOTE 33]

In addition, there is the testimony of [D.] R. that
he caught [M.M.R.] and [M.L.R.] in the bathroom the same day
Anita Klassen noticed the blood spots on [M.M.R.]'s panties
and he had asked [M.L.R.] if he had done something dirty
because he was pulling up his pants. He said on direct
examination:
QAnd what did you see?
AWell, I yelled, and then [M.L.R.] pulled up his pants,
he said, "Nothing, nothing" and I gave a spanking. And I
didn't -- and I told him not to touch the razor because it
was sharp.
QSo this took place where? Which room?
AI told you, in the bathroom.
QAnd how did you know to go to the bathroom?
ABut Ralph was the one that was supposed to watch the
kids, and he just kept watching TV, and I was in the
kitchen cooking supper. And I came and that's when I saw
this all happen.
QOkay, and you came in where?
AWell, I didn't see -- I didn't see anything because
[M.L.R.] pulled up his pants really quickly.
QJust tell the judge what you saw.
AWell, they were sport shorts that were on him, and
they were pulled up quickly so I didn't see anything, but I
asked [M.L.R.], 'cause he could sign. I said, "Did you do
something dirty?" He said, "No, no."
QDid you spank [M.L.R.]?
ANo. I spanked [M.M.R.]. Because [M.L.R.] was blaming
[M.M.R.]. I didn't spank her hard, I just gave her a, you
know, I wasn't mean, I just gave her a spank. [FOOTNOTE 34]

He repeated what he said in cross-examination:
AI went in there, the sink was broken. You know, the
--both of them had their clothes on, the sink was broken
and I think the reason why the sink was broken because she
climbed up to try and get something out of the cabinet.
QBut both kids had all their clothes on?
AYes. Yes.
QWhy did you ask [M.L.R.] if he did something dirty?
AWell, I was just asking him, "Did you do something
dirty?" and he said, "No, no." So maybe he did and he was
just, you know, keeping it quiet.
QWhy did you think he did something dirty?
AJust thought he did. I told him he better stop, you
know, acting dirty. And, you know, I said, "Did you pull
your pants down and so [sic] something dirty?" "No." And
then I looked at the sink and here it was, you know,
busted. And Ralph and I tried to fix it.
QDid [M.L.R.] do anything that made you think that he
had done something dirty in the bathroom that day?
AI don't know, you know, maybe he was horny, I don't
know. Maybe he learned it from school.
QBut you didn't see him do anything, you just -- you
just thought he might have done something?
ANo, nothing. I just asked him. I said, "[M.L.R.],
did you do something -- do something dirty?" and he just,
"No, no." And maybe the two of them were lying.
QDid you ask [M.M.R.] if something happened?34

In addition there is evidence the three children lied
to adults about their sexual activities. For example,
[M.L.R.] testified that:
QOkay. And did you ever make up a lie to them after
you were caught?
ANo. I mean, yeah.
QOkay. And that's what I wanted, what I meant -- what
sort of -- what sort of lie did you tell when you were
caught?
AThat we never touched each other, and we just were
faking it.
QOkay. And did [M.M.R.] and [K.J.R.] go along with that
lie, did they tell that too?
AYeah.
QOkay, so did you three talk about what sort of lie
you would tell?
ANo. I just told the lie and they agreed with it.
QOkay, so you told the lie right in front of them, did
you?
AYeah, yeah, yeah.
QAnd did you ever threaten them if they told on you?
AYeah.
QOkay, give me an example of that.
AI'd say, "If you tell, I'll kill you with -- I'll
strangle you with ropes."
QOkay. And did you -- could you tell whether your
sisters would -- were a [sic] scared of you?
ANo, they just said, "Okay, then I won't tell on you."

[M.M.R.] also testified that:
QMR. KERGOAT: That's a hard question, isn't it?
AM'hm.
QOkay, maybe I'll make it a little easier. What did
[M.L.R.] do?
APut his fingers in her.
QAnd can you tell us where that happened and about
what time of day, just --
ANo.
QThe judge hasn't heard any of this before, that's why
I have to ask it again.
AIn the playhouse.
QIn the playhouse?
AInside.
QAnd just go into the details of what he did.
ABrought her up -- it's like there's a
(unintelligible) and there's a ladder that goes upstairs.
And there's a big floor upstairs and a whole bunch of rugs
and stuff, and he put his penis inside.
QOkay. And you saw that?
AM'hm.
QOkay. And did you help hold her down, too, to help
[M.L.R.] out?
AM'hm.
QOkay. And [K.J.R.] was fighting?
AM'hm.
QAnd then, after that, did [M.L.R.] threaten you?
AM'hm.
QOkay, tell the judge what he said.
ADon't tell, okay, 'cause I don't want to get in
trouble.
QOkay. And did he say anything would happen to you if
you did tell?
AM'hm.
QOkay, tell the judge that. You can tell the judge
that.
AHe said that he wouldn't touch me -- he wouldn't --
he'd get the -- get someone to hold me down and then he'd
touch me --
THE COURT: I'm sorry, I can't hear you. Could you
try speak just a little closer to the microphone?
MR. MIAZGA: (inaudible)
THE COURT: What did [M.L.R.] say to you?
AUm, if he -- if I told on him, he would touch me and
he'd get someone to hold me down.
QMR. KERGOAT: And anything else, [M.M.R.]?
A Yeah.
QGo ahead.
ABut it's kind of scary to say.
QWell, we hear a lot of things here.
AHe said he'd kill me.
QHe did? Did you believe him?
AM'hm.
QDid he tell you to make up any stories at that time?
AYeah.
QAnd which story did he tell you to make up?
AJust telled me to say, just tells me to say, "Oh, we
were just playing in the playhouse together" or something
like that.
QOkay. And did he tell you to say anything else to
Lyle and Marilyn?
ASometimes he'd say, well, we were just cleaning the
playhouse, 'cause we clean the playhouse about every month.
We put the rugs back in place and stuff.
QOkay. And did he tell you to talk about anything
else?
ANo. [FOOTNOTE 35]

[M.M.R.]'s response about her birth father abusing her
sexually is as consistent with her desire to protect
[M.L.R.] and to deflect attention away from their sexual
activities as it is with having been sexually assaulted by
[D.] R. When one couples this with the trial judge's
finding that [M.L.R.]'s out-of-court statement surrounding
the same incident did not satisfy the criterion of
reliability, it is difficult to reconcile how she could
find one reliable and the other not. Lamer C.J.C. in
Smith, stated he engaged in speculation about the reason
for an out-of-court statement simply to show the statement
was not one that provided the circumstantial guarantee of
trustworthiness that would justify the admission of its
contents by way of hearsay. Similar speculation in this
case yields the same result. I am far less convinced than
the trial judge on the degree of reliability of the
statement given the children's propensity to lie and
exaggerate, a fact which, I might add, was also noted by
the trial judge (see p. 2960). I conclude that the
statements made to Anita Klassen and to Dr. McKenna by
[M.M.R.] do not satisfy the reliability criterion set out
in Khan and Smith.

Exclusion of Expert Testimony of Dr. Elterman
The appellant, [D.] R., called Dr. Elterman, a
psychologist qualified to give evidence in the "area of
child development and characteristics of child abuse." Dr.
Elterman gave general evidence on the conduct usually
manifested by children who have been sexually abused. He
identified conduct which, while not conclusive in itself,
could lead one to conclude a child had suffered from sexual
abuse. In addition, he testified on the development of
memory in young children and on the type of memory children
develop as they mature. Dealing with the type of memory
individuals have he stated:
... if I said to you, "I want you to think of a restaurant
you've been to, say, a MacDonald's restaurant, and tell me
what that looks like", then you would be able to do that,
because you had been there and you would have a memory of
that. If I told you to tell me about, say, what the
capital of a country is, or whether a country is in a
certain place, then that would be, that would be
information, it would be verbal memory, it would not be
visual memory. [FOOTNOTE 36]

Dr. Elterman conducted interviews with each child for
the purposes of identifying, among other things, what type
of memory they possessed at critical times in their
development. Each interview lasted approximately forty-
five minutes. He described his testing in these terms:
And so the way that I would describe this to them is to
say, "When you've been somewhere and something has happened
to you, you have pictures in your mind that you can call
upon, and if you would close your eyes you could think of
it, and visualize that particular picture". And it was
quite clear to me after speaking to all three of them that
their recollections of their birth parents, and what
happened there, is what you can call verbal memory. In
other words they say it because they say that, "I know that
it happened, but I can't remember it happening", whereas
when they talk about what happened at the Klassen's they
can both -- they can both say it and remember it, and they
also have visual memories. And I asked [M.L.R.] whether he
has pictures in his mind, whether he has visual memories of
things that took place in his parents' home, and he said
no. So his memory of what happened is one of information.
It's at the information level, it's something that he
believes took place. But if you ask him specifically, "Can
you close your eyes and get a picture of what, of those
things happening?" he has difficulty doing that. [FOOTNOTE 37]

At this point, Crown counsel objected to the
questioning. Crown Counsel stated:
It strikes me that this evidence comes dangerously close to
him saying whether or not you should believe the children,
which, of course, he's not entitled to do. [FOOTNOTE 38]

The essence of the objection was that Dr. Elterman was
not entitled to describe his findings concerning the type
of memory possessed by these children because his finding
of the type of memory possessed by the children would
somehow impinge on the trial judge's function to determine
the credibility of the witnesses. The appellant's counsel
contended the results of the examination of the children
were both relevant and admissible and that such examination
did not interfere with the right of the trial judge to
determine the ultimate issue - the credibility of the
complainants. The trial judge stated:
But this thing goes to the very crux of this case, goes to
the very matter that I have to decide. Whether these
children remember. [FOOTNOTE 39]

She continued:
The law of evidence in regard to these matters is that an
expert witness cannot usurp the functions of the Court.
And in addition to that, it isn't really helpful to bring
in evidence of actual questions and answers, because I
don't know all the circumstances. I don't know what
preceded them, I don't know what form they were put in, I
don't know the circumstances. [FOOTNOTE40]

She concluded:
No, I'm quite prepared to accept the evidence as to the
theory, as to the experience that -- the difference between
verbal memory and picture memory, but it's different to go
on from there and say that he has asked the children
questions as to what they could see, or what they couldn't
see, and that he has reached a conclusion from that, in
this specific case. [FOOTNOTE 41]

Thus, it would appear the trial judge was of the
opinion that any evidence of the actual testing of the
children with the objective of determining what type of
memory they possessed at the critical time, or the extent
of their visual or verbal memory, was not admissible. With
respect, in my opinion the trial judge erred in refusing to
permit [D.] R.'s counsel to introduce such evidence.
There is a difference between the expert deciding the issue
of credibility and the expert providing an evidentiary
base, based on his or her expertise, which the trial judge
can use to determine credibility.

Professor A. Mewett in Editorial-Credibility and
Consistency set out the approach to be followed in similar
circumstances:
The relevance of his testimony is to assist -- no more -- the
jury in determining whether there is an explanation for
what might otherwise be regarded as conduct that is
inconsistent with that of a truthful witness. It does, of
course, bolster the credibility of that witness, but it is
evidence of how certain people react to certain
experiences. Its relevance lies not in testimony that the
prior witness is telling the truth but in testimony as to
human behaviour. [FOOTNOTE 42]

This approach, which recognizes that certain aspects
of human behaviour which are important to a judge or jury's
assessment of credibility, but which are necessary to
determine the ultimate issue, was approved by the Supreme
Court of Canada in Marquard.

In Marquard McLachlin J. reiterated it is "a
fundamental axiom of our trial process that the ultimate
conclusion as to the credibility or truthfulness of a
particular witness is for the trier of fact, and is not the
proper subject of expert opinion". [FOOTNOTE 43] Evidence adduced
solely to bolster a witness's credibility is not
admissible. McLachlin J. stated:
Expert evidence has been properly led to explain the
reasons why young victims of sexual abuse often do not
complain immediately. Such evidence is helpful; indeed it
may be essential to a just verdict.

For this reason, there is a growing consensus that
while expert evidence on the ultimate credibility of a
witness is not admissible, expert evidence on human conduct
and the psychological and physical factors which may lead
to certain behaviour relevant to credibility, is
admissible, provided the testimony goes beyond the ordinary
experience of the trier of fact. [FOOTNOTE 44]

The issue was again considered in R. v. Burns (R.H.) [FOOTNOTE 45]
where a psychiatrist testified about some symptoms of
sexually abused children. McLachlin J. speaking for the
Court, stated:
The general rule is that expert evidence is admissible
to furnish the court with scientific information which is
likely to be outside the experience and knowledge of the
judge and jury: R. v. Marquard (D.), [1993] 4 S.C.R. 223
at p. 243 (per McLachlin J.); R. v. B,land, [1987] 2 S.C.R.
398, at p. 415 (per McIntyre J.); R. v. Abbey, [1982] 2
S.C.R. 24, at p. 42 (per Dickson J.). The use of experts
to explain human behaviour may fall within this rule. The
behaviour of a person who has been systematically abused is
one example of a matter on which experts may assist. This
use of expert evidence was approved by this Court in R. v.
Lavallee, [1990] 1 S.C.R. 852, where expert evidence of the
reactions and behaviour of a woman who had been repeatedly
battered by her companion was admitted: see Wilson J.'s
reasons at pp. 870-72. [FOOTNOTE 46] [emphasis added][citations
omitted].

Based on his work with the complainant, the psychiatrist
formed the opinion that the complainant had been sexually
abused and testified to that effect.

McLachlin J. concluded:
The respondent does not argue that psychiatric
evidence bearing on a witness' behaviour is for that reason
inadmissible. His objection is that "the opinion of Dr.
Maddess went to the very root of the issue before the
learned trial judge" and that "allowing that opinion
usurped the function of the trial judge": the so-called
"ultimate issue rule". However, the jurisprudence does not
support such a strict application of this rule. While care
must be taken to ensure that the judge or jury, and not the
expert, makes the final decisions on all issues in the
case, it has long been accepted that expert evidence on
matters of fact should not be excluded simply because it
suggests answers to issues which are at the core of the
dispute before the court: R. v. Graat, [1982] 2 S.C.R. 819.
See also Khan v. College of Physicians and Surgeons (Ont.)
(1992), 9 O.R. (3d) 641 (C.A.) at p. 666 (per Doherty,
J.A.). [FOOTNOTE 47]

In the case at hand, the appellants sought to
introduce evidence of human development. It is evidence
concerning the type of memory human beings possess and the
psychological assessment of the type of memories the
complainants possessed concerning their birth parents'
home. The purpose of Dr. Elterman's evidence was not to
supplant the function of the trial judge to determine
credibility, but rather to give the trial judge information
beyond a lay person's capacity, to assist her to determine
the ultimate issue -- credibility. Dr. Elterman was not
called to testify whether the witnesses were telling the
truth or whether he believed their testimony. He was
called to explain the difference between visual and verbal
memory and to give his opinion as to what type of memory
the children possessed at a particular stage of their
development. It remained for the trial judge to decide
what impact that evidence had on the credibility of the
witnesses.

In my opinion, there is no difference in the type of
evidence the appellant sought to introduce and evidence of
a doctor concerning the results of a medical examination.
For example, the results of an examination of the eyesight
of a witness' ability to see and identify objects at a
distance. If a witness testified to having seen the
accused at two hundred yards, surely the results of a
medical examination by a qualified ophthalmologist that the
witness suffered from a particular disease which made it
impossible for him to see an object clearly at more than
fifty yards, would be both relevant and admissible. It
would be admissible, not to determine whether or not the
ophthalmologist believed the witness, but rather to
establish the witness' ability to see. It is evidence of
human condition or frailty, not evidence of the truth or
falsity of the witnesses' testimony. There is no
difference, in my opinion, between that evidence and
evidence pertaining to the type of memory possessed by a
witness, and therefore, the ability of the witness to
remember or not to remember specific instances. It remains
for the trial judge to determine whether or not the witness
is credible. Here, while the evidence would have a bearing
on the ultimate decision, it should not be excluded because
it suggests answers to issues which are at the core of the
matter before the Court.

In my opinion, the trial judge erred in failing to
permit the appellant to adduce the evidence on this issue.
This evidence was crucial to a proper assessment of the
evidence of these three infant complainants. It bears
directly on the credibility of the three infant
complainants.

Use of Video Taped Interviews in Cross-Examining of Carol
Bunko-Rys
[D.] R. contends the trial judge erred in refusing
to permit the defendants to use certain video-taped
evidence during the cross-examination of Carol Bunko-Rys, a
counsellor and therapist to the children, to refresh her
memory. Ms. Carol Bunko-Rys testified about the effects of
suggesting answers to child witnesses and had been
qualified as an expert on child sexual behaviour. She was
unable to remember certain types of questions and
disclosures made by [M.L.R.], including the number of people
who had sexually abused him, and was unable to recall the
sexual behaviour involved.

The appellant sought to use the video tapes of the
interviews, at which she was present, to assist her in
replying to their questions. They contend the trial judge
erred in refusing to permit the defendants to cross-examine
her on the interviewing techniques used by the
investigating officer on the complainants and to use the
tapes and transcripts of such interviews to refresh her
memory in that regard. While no questions were put to Ms.
Carol Bunko-Rys about her presence or participation in the
interviews of the children, it is clear she attended the
interviews of all the children conducted by Corporal Brian
Dueck. In response to a question concerning who was
present, he testified:
AMyself, the children, Carol Bunko was also present,
Carol Bunko-Rys, the therapist. [FOOTNOTE 48]

And further:
QOkay. And what about the therapist, did she also
take the same approach?
AYou'd have to ask her. I'm not sure.
QNo, in what you saw of her dealings with the
children?
AShe listened to what they were telling her, yeah.
QDid she, at any time, indicate to them that things
were getting a bit off the wall?
AI'm not sure if she did. I don't recall that, no.
QYou don't recall her ever doing that?
ANo. [FOOTNOTE 49]

While the arguments put to the trial judge on this
issue were unfocused and did not clearly express the
precise purpose for the cross-examination and the necessity
of the witness to refer to the tapes and transcripts to
refresh her memory, it appears the defendants wished to do
the following:
1.Cross-examine Carol Bunko-Rys on whether the children had
given evidence voluntarily or whether it had been elicited
after long and persistent questioning and coaching of the
witnesses;
2.In those instances where the witness could not remember
either the questioning or the kind of questioning, they
proposed to have her review the transcripts of the
questioning of the children at which she was present and in
which she participated;
3.To discredit the children's evidence through cross-
examination in ruling the video tapes or transcripts could
not be used to refresh Ms. Carol Bunko-Rys memory, the
trial judge stated:
As I understand the problem, the use of the transcript of
the video is suggested for, first of all, to refresh the
memory of the witness, but obviously it's not her memo,
they're not her notes, they are nothing that she has
certified as being true, and they're not in regard to
statements made by her.

She continued:
Secondly, the use to discredit the credibility of another
witness, I don't think is valid in this case because
already through an attempt to be very fair to the accused,
I have allowed the use of the transcript in this manner in
cross-examination of the complainants. Thirdly, if it's to
be used to prove the statement by another witness to show
that there was coaching or manipulation, that kind of
evidence should be obtained from cross-examination, but as
a collateral issue you cannot go further to contradict
whatever the witness says in that case. And if it is, as I
suspect, really questions as to the procedure in eliciting
declarations, to show that there was some sort of influence
on the witnesses, I think those questions and answers
should be put to the people who were -- who received those
declarations, and they should be cross-examined, but not
with reference to the transcript itself. [FOOTNOTE 50]

The trial judge erred in ruling a witness is limited
to reviewing his or her own statement for the purpose of
refreshing memory. There is no requirement that the
material used to refresh the memory of the witness be
restricted to the witness's statement alone. The witness
may be referred to a "writing" regarding events or matters
observed or heard by the witness. Sopinka, Lederman and
Bryant in The Law of Evidence in Canada state:
Some more recent cases have considered the question of
whether a record made by means other than writing can be
used to refresh memory. In R. v. Mills [FOOTNOTE 51], Winn J. allowed
a police officer, who had overheard statements made by the
two accused confined in separate cells to refresh his
memory from a tape recording which had been placed in the
corridor, and on which the accused's statements were
recorded. The use of the tape was supported on the basis
that the recording device merely took the place of a pen or
pencil, and, alternatively, that the machine was set by the
policeman to perform the function of making the record, and
its accuracy was verified by the policeman while the
statements by the accused were fresh in his memory. [FOOTNOTE 52]

Similarly, J.D. Ewart in his text states:
In Canada, at present, there appears to be no specific
requirement that material used to refresh a witness's
memory be confined to his statement alone. There seems no
reason why documents not necessarily made by the witness,
leading questions in pre-trial interview, or physical
exhibits could not be utilized by revive the memory of a
witness. However, it would obviously be improper to use
the statement or testimony of another witness to `coach' a
witness with respect to his testimony.

It is also noteworthy that there appears to be no
requirement that a witness's own writings, used to refresh
his memory prior to trial, must have been made
contemporaneously with the event. It is the accepted
practice that the witness be given a copy of his evidence
at the preliminary inquiry or earlier proceeding, in order
to refresh his memory prior to trial. [FOOTNOTE 53]

The Crown contends the defence failed to lay a proper
foundation for the cross-examination of Ms. Carol Bunko-
Rys. For example, she was not asked if she participated in
the interviews, or the extent of such participation. As a
result, the Crown contends the trial judge was correct in
refusing to permit counsel to use the video tapes to
contradict the witness or to elicit opinions concerning the
interview process. In my opinion, reference to the tapes
or the transcript of the video tapes was for the purpose of
determining an issue which is not collateral, but rather
the main issue -- the credibility of the complainants. It
is not unlike R. v. McNabb, [FOOTNOTE 54] where the court found
rebuttal evidence of the accused concerning his financial
condition relevant to the determination of a primary issue,
that is, the credibility of the accused. It was not
collateral in the sense referred to in the authorities.
The stated purpose of the cross-examination in this case
was to show the evidence of the complainants had been
elicited by the investigators after suggestions were made
to them about what happened, and as a result, the evidence
was not credible. The intended cross-examination was
relevant to the truthfulness of the allegations of a
central issue before the court.

The Crown also argues the appellants suffered no
prejudice as a result of the ruling because they could have
cross-examined the investigator, Corporal Brian Dueck, or
could have had the video tapes examined by Dr. Elterman, an
expert in these matters. That the defence chose not to do
either does not take away from the fact they were prevented
from cross-examining Ms. Bunko-Rys, on a matter vital to
the determination of the guilt or innocence of the
appellants. It is difficult to theorize or determine
whether the trial judge's ruling affected the trial or
whether such ruling caused actual prejudice to the
appellants. In my opinion, the trial judge erred in
failing to permit the appellants to use the transcript and
video tapes of the interviews of the children to refresh
the memory of Carol Bunko-Rys.

Unreasonable Verdict
All the appellants contend the verdict of the trial
judge is unreasonable and unsupported by the evidence.
They contend no properly instructed jury or judge acting
reasonably could have convicted the appellants. It is
their contention that the evidence is so contradictory,
confused and bizarre, it cannot, in law, be taken as proof
beyond a reasonable doubt of the charges against all the
appellants. They also contend the trial judge erred in law
in finding the testimony of the three complainants was
credible and, when considered with the errors made by the
trial judge, the verdict was unreasonable.

The standard of appellate review pursuant to s.
686(1)(a)(i) of the Code or the reasonableness of a
decision was articulated in R. v. Yebes [FOOTNOTE 55] where McIntyre J.
speaking for the court stated:
The function of the Court of Appeal, under s. 613(1)(a)(i)
of the Criminal Code, goes beyond merely finding that there
is evidence to support a conviction. The Court must
determine on the whole of the evidence whether the verdict
is one that a properly instructed jury, acting judicially,
could reasonably have rendered. While the Court of Appeal
must not merely substitute its view for that of the jury,
in order to apply the test the Court must re-examine and to
some extent reweigh and consider the effect of the
evidence. This process will be the same whether the case
is based on circumstantial or direct evidence. [FOOTNOTE 56]

Sopinka J., in R. v. S.(P.L.), [FOOTNOTE 57] speaking for himself,
Lamer, C.J.C. and LaForest and McLachlin JJ., adopted the
test in R v. Yebes (supra) and emphasized that a court of
appeal can properly engage in a review the facts, pursuant
to s. 686(1)(a)(i):
In an appeal founded on s. 686(1)(a)(i) the court is
engaged in a review of the facts. The role of the Court of
Appeal is to determine whether on the facts that were
before the trier of fact a jury properly instructed and
acting reasonably could convict. The court reviews the
evidence that was before the trier of fact and after re-
examining and, to some extent, reweighing the evidence,
determines whether it meets the test. See R. v. Yebes,
[1987] 2 S.C.R. 18. [FOOTNOTE 58]

McLachlin J., for the court, made it clear in R. v.
W.(R.) [FOOTNOTE 59] that the obligation of a court of appeal to
reweigh and consider the effect of the evidence applies
equally to verdicts based on findings of credibility. She
noted however that, while the test remains the same:
...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, [1947] S.C.R. 268,
at p. 272; R. v. M. (S.H.), [1989] 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. [FOOTNOTE 60] [emphasis added]

McLachlin J. put it this way in Burns, supra:
In proceeding under s. 686(1)(a)(i), the court of
appeal is entitled to review the evidence, re-examining it
and re-weighing it, but only for the purpose of determining
if it is reasonably capable of supporting the trial judge's
conclusion; that is, determining whether the trier of fact
could reasonably have reached the conclusion it did on the
evidence before it: R. v. Yebes, R. v. W. Provided this
threshold test is met, the court of appeal is not to
substitute its view for that of the trial judge, nor permit
doubts it may have to persuade it to order a new trial.
[citations omitted]. [FOOTNOTE 61]

Thus, this Court has not only the right, but the
obligation, to reweigh the evidence to determine whether
the verdict is one which a judge, properly instructed,
could have reasonably made, subject to the caveat that,
when dealing with matters of credibility, one must take
into account the special advantage of the trial judge.
This is especially true when dealing with the evidence of
child witnesses. In R. v. W.(R.), supra, McLachlin J.,
after referring to the comments of Wilson J. in R. v.
B.(G.) [FOOTNOTE 62] concerning a commonsense approach to children's
evidence, stated:
It is neither desirable nor possible to state hard and
fast rules as to when a witness's evidence should be
assessed by reference to "adult" or "child" standards -- to
do so would be to create anew stereotypes potentially as
rigid and unjust as those which the recent developments in
the law's approach to children's evidence have been
designed to dispel. Every person giving testimony in
court, of whatever age, is an individual, whose credibility
and evidence must be assessed by reference to criteria
appropriate to her mental development, understanding and
ability to communicate. But I would add this. In general,
where an adult is testifying as to events which occurred
when she was a child, her credibility should be assessed
according to criteria applicable to her as an adult
witness. Yet with regard to her evidence pertaining to
events which occurred in childhood, the presence of
inconsistencies, particularly as to peripheral matters such
as time and location, should be considered in the context
of the age of the witness at the time of the events to
which she is testifying. [FOOTNOTE 63]

It is pursuant to these principles that we must
examine and reweigh the evidence to determine whether or
not the verdict is unreasonable.

I start with, and cannot ignore, the heartfelt
comments of the trial judge concerning the trauma, both
physical and psychological, which have been inflicted on
these children and her wish these children will "be left to
heal in peace." It is obvious she was profoundly affected
by the evidence of the children. It is clear from the
evidence these children have been sexually abused -- what is
less than clear is whether they were sexually abused by the
appellants. We do know Mr. Klassen Sr. pled guilty to
having sexually assaulted these children. The fundamental
question on this appeal is whether these appellants have
sexually assaulted the children.

The task of this Court is made more difficult by the
fact the trial judge made no specific findings of sexual
abuse and made no specific findings in relation to the
accusations of sexual assault upon [K.J.R.] and [M.M.] R.
by [D.] R. or the accusations of assault and assault with
a weapon committed by [H.] R. on [M.L.] R. The trial
judge found beyond a reasonable doubt that "each of the
three children suffered sexual abuse from each of the three
accused." (page 2964) This general finding is preceded by
her comment that "I cannot separate many of the beliefs . .
. into neat categories of how this happened and this is a
misconception." (page 2962) This statement is followed by
a further finding that she was left with a reasonable doubt
"as to whether any one of them [the children] 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 [M.M.R.] or [K.J.R.] by [D.] R. or [D.]
W. or upon [H.] R. by [M.L.R.]." (page 2964)

It is evident the credibility of the complainants is
critical to the reweighing and examination of the evidence
to determine whether the verdict is unreasonable. The
trial judge noted the surrounding details as to the
particulars, such as time and frequency, are uncertain and
confused. The appellants do not, however, contend the
verdict is unreasonable because the complainants were
unable to recount precise details, but rather the verdict
was unreasonable because the complainants' testimony was
bizarre, contradictory and riddled with admitted falsehoods
and, when considered in its totality, not credible.

It is convenient to examine the testimony in four
categories to determine whether the verdicts were
unreasonable:

1. the sufficiency of evidence pertaining to the charges of
assault and assault with a weapon by [H.] R. on [M.L.R.];

2. the sufficiency of the evidence of the assaults by [D.]
R. on [M.M.R.] and [K.J.R.];

3. the sufficiency of the evidence of the commission of
sexual assault generally, given the findings on the charges
of gross indecency;
4. the credibility of the testimony of the children.

In addition one must consider the effect of the errors
in law made by the trial judge.

1. Assault with a weapon by [H.] R. on [M.L.R.]
[M.L.R.]'s testimony was:
My mother stabbed me with a knife to get blood. My mom lit
a lighter and burnt me here on my right hand. No one else
burnt me.

The trial judge states she accepts that, in giving
this testimony, [M.L.R.] was trying to be accurate and
truthful. But when one examines the evidence of [M.L.R.] on
these charges there is only one reference to stabbing.
[M.L.R.] testified his mother tied him to a post and then
stabbed him to get blood. After she got a few drops of
blood she let him go and later tried to tie him up again.
(page 160). Similarly, on the accusation he was burned by
[H.] R., the trial judge quoted [M.L.R.] as saying "My mom
lit a lighter and burnt me here on my right hand. No one
else burnt me." (page 2955). It is not clear from the
judgment whether or not the trial judge based the
conviction for assault on the burning with the lighter, but
assuming she did, [M.L.R.]'s evidence on this point is
contradictory and confusing. He testified he had been
burned on several occasions, including being burned by his
foster mother, Anita Klassen (pages 187 and 188). He also
testified at the preliminary inquiry he had been burned by
his Grandpa Vogen. At trial however, he claimed his
testimony at the preliminary inquiry was false and that he
was "daydreaming" (page 182). Anita Klassen and Lyle
Thompson testified (pages 1280 and 1751) [M.L.R.] had a
penchant for playing with knives and with fire. [M.L.R.]
testified he liked knives (page 194) and the children cut
each other (page 192).

Thus, while the trial judge stated the evidence proved
beyond a reasonable doubt [H.] R. committed the offences
of assault as charged in counts 8 and 11, there is nothing
in the judgment to indicate which evidence she relied on in
coming to that conclusion, other than her general comments
about the children's evidence. There is nothing in the
judgment to indicate the contrary position, that he had
been burned by someone else. Although a failure to give
reasons is not an error in law in and of itself, incomplete
reasons may constitute reversible error if there is an
indication the trial judge did not deal with or appreciate
relevant evidence. See Macdonald v. R.; [FOOTNOTE 64] Harper v. R.; [FOOTNOTE 65]
R. v. Dupuis. [FOOTNOTE 66] In Harper, Estey J. for the majority of
the Supreme Court of Canada stated:
Where the record, including the reasons for judgment,
discloses a lack of appreciation of relevant evidence and
more particularly the complete disregard of such evidence,
then it falls upon the reviewing tribunal to intercede. [FOOTNOTE 67]

Thus, where the trial judge's reasons show he or she has
failed to appreciate an important point, leading to the
conclusion the verdict is unreasonable, an appellate court
has an obligation to intervene. [FOOTNOTE 68]

Here, the trial judge made reference to [M.L.R.]'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 [M.L.R.] being placed in the
Klassen foster home. She also did not mention that Dr.
Yelland, when examining [M.L.R.] 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 [M.L.R.] 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 [M.L.R.]
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 [D.] R. on [K.J.R.] and [M.M.R.]
With respect to the charges that [D.] R. committed
assault upon [M.M.R.] and [K.J.R.] 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 [K.J.R.] 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, [K.J.R.]
was examined by Dr. Yelland in June of 1990. He performed
a complete physical examination of [K.J.R.] 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 [D.] 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 [D.] 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 [D.]
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 [M.L.R.], [K.J.R.] and [M.M.R.]
occurred. She made no mention of the bizarre circumstances
[M.L.R.] 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 [M.L.R.]'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 [K.J.R.] and
the lack of physical evidence of scarring. There is no
medical evidence to substantiate the testimony of either
[M.M.R.] or [K.J.R.] 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 [D.] 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.
[M.M.R.] testified:
(a)her birth parents would put knives in her bum and vagina
and in the bum and vagina of her sister, [K.J.R.];

(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.

[K.J.R.] testified:

(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.

[M.L.R.], 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.
She said:
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. [FOOTNOTE 69]

She continued:
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. [M.L.R.] 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. [FOOTNOTE 70]

She concluded:
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. [FOOTNOTE 71]

With respect to the allegations of sexual assault the
children answered by rote when questioned about bad
touching. For example, [M.L.R.] 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 [D.] 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 [M.M.R.] and [K.J.R.]. For example, [M.M.R.]
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." [K.J.R.] made similar
comments concerning her mother and father and [D.] 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 [M.M.R.] or [K.J.R.] by [D.] R.
or [D.] W. or upon [H.] R. by [M.L.R.]. When one
examines the decision in relation to [M.M.R.] and [K.J.R.],
the trial judge expressly stated the two girls had
testified [D.] R. penetrated them vaginally and anally
(page 2957). There is no other evidence referred to in the
judgment concerning the nature of the sexual assault
committed on the two girls by [D.] W. With respect to
[M.L.R.]'s evidence against [D.] W., the trial judge
stated [M.L.R.] said "every time we were sexually abused by
him, [[D.] 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
[M.L.R.] or the penetration of [M.L.R.] by [D.] 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 [D.] W. and [H.] 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, [M.M.R.] 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 [M.L.R.] of the sexual assaults and gross indecency
concerning [D.] 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. [FOOTNOTE 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 [D.] 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
[D.] R. She then purports to use as confirmation [D.]
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 [D.] 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
[D.] 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:
QAnd you heard them [the children] talk about all the jars
with the labels of blood and eyeballs, and all that?
AOh, no, no, no, no.
QWell, 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?
AH'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.
QDid they ever say to you that they thought they were
drinking blood?
AYes. 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 [H.R.] say?
AWell, 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.
QBut did the kids actually tell you it was blood?
AYeah, and I was surprised.
QWhat would you say when they said it was blood?
AI 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.
QAnd what about the apple juice?
AYes. They thought it was pee, and it's not. Yeah, they'd
look at it and they just dumped it out.
QDid they say it was pee?
AWell, that's what they said, but I didn't say anything.
QWould you say anything when they said it was pee?
AYes, I told them. And they said, `Well, that's bullshit',
and they just put their glass to the side.

And at p. 2696:
QWas 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?
ANo, they thought it was, and I said no. It was bacon and
beans mixed together and hot dogs.
QSo it was kind of a brown colour, was it?
AYou know, canned beans, you know?
QLike pork and beans?
AYeah, 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.
QAnd 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'?
AYeah (inaudible), I don't know.
QAnd what did you do when that happened?
AWell, I had to end up making a quick sandwich for them,
you know, some sandwich meat or something.

In addition, [D.] R. did testify as to the presence
of the gorilla mask worn by the appellant, [H.] 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 [D.] 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 [D.] 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 [M.L.R.] 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. [FOOTNOTE 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.

DISPOSITION
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 [M.M.R.]. 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, [1947] S.C.R. 268,
at p. 272; R. v. M.(S.H.), [1989] 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. [FOOTNOTE 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. Mohan [FOOTNOTE 75] 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.


Vancise J.A.

Search Star Chamber Proceedings

Search This Site and all related sites