THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 133 Date: November 24, 2006
Saskatchewan Justice and Social Services destroyed The Vopni Family. They got away with it because of the court ordered publication bans. If the people within their community area had been able to read in the news media at the time this atrocity was taking place there would not have been another family destroyed in Saskatchewan. I have placed some of the news articles written after the family was destroyed below. The Court of Appeal Judgement is at the bottom of the page. The court has referenced the past junk judgement in the Ross, Ross & White travesty of justice that also continued because of court gag orders. Another case that continued with no investigation, no evidence and a hogwash judgement from the Court of Appeal with no other purpose then to protect Saskatchewan Justice from yet another embarrassment. Clearly this court has learned nothing from the courts past embarrassments.
Where angels fear to tread After Martensville and Klassen, another family torn apart By Sarah Gibb for The StarPhoenix
Following a seven-week investigation, The StarPhoenix today publishes the story of yet another Saskatchewan family torn apart because a social worker, a police officer and a prosecutor rushed to charges after claims of sexual abuse were made by two of the family's troubled adopted kids.
The names of the family and their friends have been changed, as have some personal details, to protect the identities of the children.
The parents have lost their home, their farm, their reputations and four of their children. Three have been made permanent wards of the province. A fourth refuses to live in Saskatchewan now, calling it "an evil place."
It's a story with implications for everyone who adopts or fosters kids from difficult backgrounds. It's the story of a judicial system that rushes in where angels fear to tread.
Jessica and the kids were sitting down to lunch when they heard the car approach.
"We were just doing our regular stuff. Lunch was on the stove and the table was set for five."
It was Wednesday, Sept. 19, 2001, and it had been a strange few days.
Thousands of people had lost their lives in New York and Washington just over a week earlier. Closer to home, Jessica's cousin had died on the Monday, then on Tuesday, her nieces were in a car accident and it was feared one would be left paralysed.
But a phone call early Wednesday brought the news that both girls would recover, so Jessica remembers that morning as a happy one.
It's the last time she can recall feeling that way.
The chicken and salad were ready, the potatoes nearly done. Lunch was the family's main meal of the day. The kids were always starving and Jessica made sure they ate well -- no junk, just lots of home-grown organic food.
Jessica's family was a modern blend of biological and adopted kids: five adopted, four of them with special needs. Not that anyone paid much heed to who came from where. All the children were adored.
"We were just family," says Jessica.
Eleanor, 14, Katy, 13, and Ben, 11, had arrived 10 years earlier, along with their older brother Jonathan, 16, as damaged refugees from the home of their alcoholic birth mother.
The kids were affected by Fetal Alcohol Spectrum Disorder (FASD), an organic brain condition caused by their mother drinking during her pregnancies.
The three youngest children had been deeply disturbed when first adopted, but under Jessica's careful tutelage -- all her kids were home-schooled -- they'd acquired stability and discipline, and were surrounded by love.
Adam, 15, Jessica's biological son, had spent the morning at home doing school work. Husband Tom and the two older boys, Paul and Jonathan, were at work.
Paul, 19, was also adopted, but wasn't related to Jonathan and the other adopted kids. Paul wasn't affected by FASD and Jonathan had only a few of the signs. Both had grown into decent, hard-working young men.
"We were having a good day," Jessica recalls. "Ben had his stuff all packed up in the van because we were going to boy scouts. After he was taken, we didn't move anything for the longest time, so it just lay there."
There were four visitors at the door: two RCMP officers and two social workers. "I let them in, which was my first mistake. They didn't identify themselves as social workers."
The social workers were Susan Pasieka, who had completed her social work degree four years earlier, and trainee Steve Olsen.
Pasieka brusquely told Jessica she was taking the girls to the local hospital.
"I asked why, and what was going on, and what was wrong, and they said no, no, no, they couldn't tell me. Then one of the police officers gave me a look and said something like, You've asked and they've said no.'
"So I co-operated. I didn't know what else to do. It was unreal."
Pasieka took the girls to her car and told Jessica to follow with Adam and Ben.
"I didn't get to say goodbye, because I didn't know they wouldn't be coming back."
By the end of that day, four of Jessica's children had been taken into care -- Adam, Eleanor, Katy and little Ben, the baby of the family.
"Ben, I never saw again. He was only 11 and we'd had him since he was two. We never got to hug him. We never got to explain."
Eleanor told her friend she'd had sex with her brother the night before.
Jessica found out later that Eleanor had been telling a friend she'd met just a month earlier that Katy and Jonathan were having sex. The allegation made its way back to Social Services.
It wasn't the first time Eleanor had told stories that were hard to verify.
Chantal, 15, was friends with Eleanor for four years. "She says a lot of things that make you kind of wonder. It's kind of twisted," Chantal told The StarPhoenix. "Once she's mad about something, she'll say something to make the other person look bad."
Danielle, 16, was another friend of Eleanor's. "Eleanor told me that Adam had sex with Katy and got her pregnant and Katy had an abortion," Danielle said. "I didn't believe her because I knew Adam and I knew he wasn't like that."
But Eleanor's new friend had only just met the troubled little girl, and was horrified by what she was hearing.
She told a youth worker who alerted Social Services on Aug. 20, 2001. Social worker Susan Pasieka was on holiday when this first report came in, so nothing happened initially.
Eleanor and her friend kept in touch throughout August and into September. Then, during a telephone call on Sept. 18, Eleanor told her friend another startling story: that she'd had sex the night before with her brother Paul.
Hearing this claim -- or "disclosure" in Social Services jargon -- the young girl was beside herself.
She'd known Paul for eight years and regarded him as "the nicest guy ever." But she was desperately worried about Eleanor, she told The StarPhoenix. "I was, like, gotta tell someone'."
Eleanor didn't seem disturbed or upset by her story.
"She didn't seem to think there was anything wrong with it," her friend said. "She said it wasn't important."
To make sure something was done this time, the friend's mother talked to a more senior youth worker, who contacted Social Services on Sept. 18 on its emergency phone line.
Late that night, Social Services set in motion the procedure for apprehending children jointly with the RCMP.
Adam, Eleanor, Katy and Ben were removed the next day.
Based solely on interviews with the two girls -- interviews conducted by Const. Bonnie McLean of the RCMP and Susan Pasieka -- the police charged brothers Paul and Jonathan, and husband Tom, with sexual assault.
Dr. Natalie Novick Brown is a clinical psychologist and sexual deviancy counsellor with the University of Washington's Fetal Alcohol and Drug Unit in Seattle.
"FASD children typically have pervasive deficits that include lying and sexual acting out," Dr. Novick Brown told The StarPhoenix. "It is important to note, however, that the sexual acting out behaviour is less common than the lying behaviour.
"[In a case like this], a thorough investigative process must include corroboration of actual inter-sibling sexual behaviour from sources other than an FASD child."
Tom was charged without even being interviewed.
The charge against him was stayed after 15 months, but not before the Crown prosecutor had offered Tom a deal.
"If I entered a guilty plea," Tom explains, "[the Crown prosecutor] said he would recommend a suspended sentence.
"I said I had two concerns about this, one of them being that I could not enter the States with a record, which is hard for [someone in my line of work]. He said he could get an order so it wouldn't show up at the border.
"I told him the other concern I had was that I was innocent. He had no answer for that."
Adam was allowed to return home after five weeks in foster care. It cost Jessica and Tom $4,500 to pay a lawyer to help them get their son back.
"One lawyer told us, How many kids do you want back? Let me put it this way. How much money do you have?' " says Jessica.
One of the conditions of Adam's release from foster care, according to Jessica, was that his dad and brothers -- now charged as sex offenders -- move out of the family home, because social workers didn't want them discussing the case with Adam.
They regarded Adam as a witness for the prosecution, because he slept in the bedroom where some of the assaults had allegedly occurred.
Jessica says she was forced to give up her rights to Eleanor, Katy and Ben in order to get Adam back. She signed a piece of paper in front of witnesses in October 2001, saying she was agreeing to do this under duress.
Social Services say the arrangement -- give up the adopted kids and get your biological son back -- wasn't their idea but Jessica's lawyer's.
Whatever the truth, Jessica's head was spinning. Her husband and two sons were facing trial and the family was already running out of money.
"We had spent so much on the children," she says. "We had no extra money for something like this."
So she signed what she had to sign to get Adam back, and Eleanor, Katy and Ben disappeared into the care of the province until their 18th birthdays.
It had only been 34 days since the kids were first removed. Already the destruction of the family unit was complete.
"We have a strong faith. We believe in helping others, being kind to others."
Tom and Jessica met in the early 70s as students at the University of Saskatchewan. Jessica was completing an arts degree and Tom was studying agriculture.
"I had this deal with three friends," Tom says. "The first one to get to the phone got to ask Jessica out."
"And he's been regretting it ever since," adds Jessica.
They're sitting on an old sofa in the cramped living room of their tiny home in Saskatoon, the piano in the corner the only reminder of their lives before September 2001. The farmhouse, pasture land, cattle, goats and chickens have all been sold to pay the family's legal bills, which Jessica estimates at $25,000 and mounting.
"[Not counting] all the lost work hours and days," she says.
The couple became friends first, discovering their mutual love of family and their deep faith in God.
"We have a strong faith," says Jessica. "We believe in helping others, being kind to others."
They married after graduating, anxious to start a family. They also promised each other that if God graced them with their own, they'd take in some disadvantaged kids too, by way of thanks.
Jessica gave birth to Adam in 1985. The first child they adopted was Paul, a handsome, affectionate boy the couple soon fell in love with. Then they chose Katy, two years old when they got her and stunningly pretty. Jessica thought her brood was complete.
"But then Social Services phoned us and told us Katy had three siblings, two brothers and a sister, and would we take them too."
Jonathan, Eleanor and Ben had been split up and placed in different foster homes.
"It wasn't a big deal for us to take them. It was part of the family needs to be together' thing Tom and I believe in so strongly."
Social Services told Jessica that the kids had FASD. Only Katy had been diagnosed, but Eleanor and Ben had all the signs of it too.
It made no difference to Jessica and Tom. Family meant sticking together.
The couple adopted the kids rather than fostering them, which meant they received no financial support. Tom gave up work and became a stay-at-home dad, looking after the cattle and supplementing the family income with casual labouring and driving.
"Social Services portrayed us as a family with rigid stereotypes about men and women. Nothing could be further from the truth. I was the one who was out there working," Jessica says.
Jessica was a talented woman who had long wanted to develop her love of the arts and the stage. When Katy's brothers and sisters arrived, she put her dreams away and set to work earning a living for her expanded family. The StarPhoenix is prevented from giving details of the business Jessica ran in case it would identify the family. But with her warm personality, she gained a reputation as someone who could be trusted, and in no time had enough customers to keep house and home together.
The couple threw themselves into helping the children achieve their full potential.
Eleanor, Katy and Ben presented the greatest challenges. For several years, they were examined three times a year by Elizabeth Harms, director of the Hope Centre for NeuroEducational Development, a program for kids with learning disabilities. Harms says the children were severely disabled by FASD.
"They had almost no self-control. Katy would scream for many hours a day. They didn't sleep normally, and would be awake for very long hours during the night. The parents had to stay awake to supervise. The kids were also physically very destructive to themselves and to their environment."
Jessica says Ben poked out one of his permanent teeth, and Katy would try to kill small animals, inserting things into their mouths and anuses.
They also had no appetite control. Katy would eat out of garbage cans or try to eat the dog's food.
The most disturbing characteristic, says Jessica, was that Katy would masturbate frequently, no matter where she was, a trait apparently common in FASD children. Eleanor did it too, but would try to hide it. Katy would do it anywhere, anytime, often removing her panties regardless of who was watching.
"She was intellectually very disabled," says Jessica. "We'd planned for her to live with us for the rest of her life."
Using daily deep massage therapy to keep her calm, Jessica managed to get Katy's disturbed sleep patterns under control. Jessica would read out lists of objects several times a day -- barn, cow, dog, house -- which Katy would have to repeat to improve her memory. Under Harms' direction, similar therapies were used with Eleanor and Ben. Very slowly, all the kids' behaviour began to improve.
Academically, they couldn't learn much, but Jessica managed to teach them how to dance and play musical instruments, giving them skills they could be proud of, and out of these grew some much-needed self-respect.
They couldn't read music so they played by ear. Ben and Katy learned the piano, and Eleanor danced, learning how to keep track of dance steps and even representing her area in a competition.
"These children went from an inability to learn anything, through sheer repetition and tenacity on Jessica's part, to being able to play musical instruments," says Harms. "They were incredibly devoted parents, absolutely committed to their children's welfare. Major life decisions were made around the welfare of the kids. Where and how they would live, lifestyle, schooling: all these decisions were based on what would benefit the children the most. As parents, they were extremely sacrificial."
The only thing Jessica had to watch was Eleanor's love of making up stories and Katy's tendency to go along with them.
"Katy was prey for this," says Jessica, "because she was so easily led.
"Eleanor liked to do things that would get people into trouble. One day, she comes running in, saying, Katy's let the chickens out and she's chasing them down the road.' Eleanor didn't know it, but Katy was in the house with me."
Brigit Vigne was a customer of Jessica's, and her children became friends with Eleanor and Katy.
"Eleanor would lie when there was no need to lie," she said in an interview.
After the kids were taken, Brigit gave Jessica a written statement: "My children would often say to me that Eleanor told them her mother did not like us, that she did not like our children many things that were known to me to be false. [I believe] that Eleanor was delusional and got some personal satisfaction in saying things that were not fact. "
Eleanor's efforts to cause trouble for others didn't stem from malice. It was just that she didn't ever want to do anything wrong herself, Jessica explains. A slightly raised voice would make her run and hide, even if it wasn't directed at her.
The troubled little girl seemed to feel that by getting others into hot water, she was somehow keeping herself safe. "What does alcohol do to the brain? Anything it wants. What systems does it disrupt? All of them."
Social Services knew the girls were suffering from FASD when they were interviewed on videotape in their local hospital's "soft room" on Sept. 19, 2001, although it's not clear whether the investigating officer, Const. Bonnie McLean, had been told.
The term Fetal Alcohol Spectrum Disorder is an umbrella term for Fetal Alcohol Syndrome (FAS), where there is brain damage and certain facial features are present (small head size, thin upper lip, little or no groove between upper lip and nose, a flattened mid-face); and Fetal Alcohol Effects (FAE), where the facial features are absent but the brain damage is just as severe.
Alcohol delivers a catastrophic insult to the brain of the developing fetus.
One of the world's leading FASD researchers, Prof. Sterling Clarren of the University of Washington in Seattle, told a conference last year: "What does alcohol do to the brain? Anything it wants. What systems does it disrupt? All of them. It kills neurons. It disrupts their migration. It disrupts the structuring. It changes the wiring."
In a 1988 study, Prof. Ann Streissguth, head of the same university's Fetal Alcohol and Drug Unit, found that teenagers with FAS functioned at the level of six years and seven months, though the median age in the study was 16 years and five months.
Brain damage caused by pre-natal alcohol exposure can make sufferers hyperactive and egocentric. They may fail to understand how their actions affect others. They may have poor impulse control, be over-anxious to please, and may use language in a way that indicates understanding where in fact there is none.
Crucially for this case, when severely affected, as the girls were, kids with FASD often have difficulty telling fantasy from reality, in part because of memory problems and difficulty with the concept of time.
Cross-examination of Katy in court showed she had virtually no understanding of time. She didn't seem to know what 15 minutes meant, or last year, or 10 years ago.
This brain damage doesn't mean FASD kids can never be trusted, but it does mean they have to be interviewed very carefully.
Dr. Josephine Nanson, a clinical psychologist and expert on FASD at the Alvin Buckwold Child Development Program in Saskatoon, says that children with FASD can be quite accurate in their reports provided the questioner takes a great deal of care not to suggest the answers.
"If care isn't taken, you'll find that the children will tell you what they think you want to know and will mix up time, mix up the sequence of events, will say that an event that happened a long time ago happened yesterday.
"The other part of it is that, when children with FAS don't understand what's being asked of them, rather than saying I don't understand,' they will try to read the non-verbal cues from the examiner -- smiling, nodding, whatever -- and will follow those cues into making something up."
Saskatchewan's Provincial Child Abuse Protocol, written in April 1995, says that child sexual abuse investigations must be conducted jointly by the police and a child protection worker.
Susan Pasieka was therefore present during the interviews with Eleanor, Katy and Ben. She sat facing the children, just out of sight of the main camera.
Const. McLean can be seen asking most of the questions. What can't be seen is whether Pasieka unwittingly prompted the children with non-verbal cues, perhaps by nodding after certain answers or smiling. Any positive gestures would have encouraged the children to offer the types of answers they believed would elicit those responses.
There's no suggestion that either woman deliberately led the children, but it's unlikely they'd received a lot of training, if any, in how to interview kids with FASD.
Const. McLean had taken part in two relevant courses, neither of them recent: a two-week course in Regina in 1992 on how to investigate a child abuse case, followed by a three-day sexual abuse dynamics workshop in Prince Albert in 1993.
"There was training around FAS in the justice system about three or four years ago," says Dr. Nanson, "but nothing specific to interviewing children with FAS."
And yet the girls' statements to McLean and Pasieka would form the basis of the evidence presented to the courts during the boys' trials, because there was no medical or other physical evidence to support the allegations.
When they first arrived at the hospital on Sept. 19, Jessica assumed the girls would be examined by a doctor -- particularly as Pasieka had told the RCMP Eleanor had recently been assaulted.
The girls were seen by a doctor, but for reasons that were never explained, he didn't examine them. Instead, he arranged for them to see Saskatoon pediatrician Anne McKenna 20 days later, by which time any medical evidence was hopelessly lost.
Dr. McKenna established only that neither girl had an intact hymen. She testified later that this is not in itself a sign of sexual activity.
"[A ruptured hymen is] consistent with sexual intercourse, not limited to sexual intercourse," she told the court.
Jessica points out that the girls were active in sports, including horse-riding, which could have caused their hymens to break, as could their early masturbation. A finger wouldn't rupture the hymen of an older girl, but it would do so in a very young girl, Dr. McKenna testified.
The absence of medical or other evidence -- the police didn't visit the family home to look for soiled sheets or underwear -- placed the entire weight of the prosecution's case on the videotaped interviews with the girls.
"The girls would run into the boys' room at night. It was just some dumb thing they'd started doing to annoy the boys."
Eleanor begins her interview with an untruth, though you'd have to know the family to spot it.
Pasieka tells Const. McLean that Eleanor and Katy do lots of dancing. But Eleanor corrects her, saying, "Katy does. I just play the piano."
In fact, it was the other way round. Eleanor was the dancer. It was Katy who played the piano.
Jessica believes this was Eleanor testing the water. "She said this to see if she'd be caught, and she wasn't, so she thought, 'Okay'."
But Eleanor was not the only person in the hospital soft room that day to start the interview less than truthfully.
Const. McLean implies that the interview is private. "[W]e need to know exactly what's been happening and we're not going to go around telling everybody This is between us, okay, and our supervisors and that's about it ."
Eleanor says that Katy goes into the boys' room to "do sex with" Jonathan.
Paul, Adam and Jonathan slept in the master bedroom of the house, with Adam and Jonathan sharing a bed in a side-room in what was effectively a large closet.
"The girls had started running into the boys' room at night," Jessica told The StarPhoenix. "It was just some dumb thing they'd started doing that summer to annoy the boys. They'd also started going up behind them and yanking their pants down, but again it's total immaturity. You have a 13-year-old acting like a pre-schooler."
According to Adam, Katy would come running into the room, pestering the boys and jumping under the covers when they were trying to sleep. He says she usually jumped in on Jonathan's side of the bed, just because that side was nearest the door.
"We'd kick her out after two minutes," Adam said. "It was annoying. It wasn't something we wanted."
McLean asks Eleanor what she means by "do sex." Eleanor replies that she doesn't know how to say it.
At that point, McLean inadvertently leads her. "Okay, private parts Everybody's got them, okay, and sometimes people touch each other in their private parts and they shouldn't, or it's not appropriate."
The Provincial Child Abuse Protocol is clear on the issue of suggestion. "The information should come from the child," it says, "not the interviewer."
McLean's reference to "private parts" is repeated by Eleanor minutes later when McLean asks, " what parts of the body are used when you have sex?" and Eleanor answers, "Their private parts."
McLean asks Eleanor which private parts are used. Eleanor says, "I don't know what they're called."
Const. McLean produces an anatomically-correct diagram.
Many experts agree that the danger with these diagrams is they tell the child what kind of thing the interviewer wants to hear.
Dr. Josephine Nanson cautions against their use. "When a child [is] using terms that are hard to interpret like down there,' I will have them draw that for me but I don't do the drawing for them, because I don't want to lead them on."
Eleanor is able to name the penis, testicles, breasts and vagina on the male and female diagrams. Despite knowing the words, she still can't say what she means by "do sex."
She then says that Paul has done to her "what Katy and Jonathan would do."
Eleanor would be doing her chores, she tells McLean, when Paul would approach her, and "then he's like, come on let's do it, I'm like, no, he's like, why not, cause I don't want to and I have to do my jobs, and he's like, well you can do that later, I'm like, no, and he'd like, pick me up. "
Eleanor's claim that she'd had sex with Paul two nights earlier, now changes to "when I was younger," "four times when I was little," and "I think last year." She would later tell a psychologist that it was twice a week.
In fact, she tells McLean, it was actually Katy and Jonathan who had sex two nights ago. She says she didn't see it, and no one told her it had happened.
"So you just think it happened?" asks McLean.
"Ya," Eleanor replies.
It was on the basis of Eleanor's statement alone that Paul was charged.
Eleanor's testimony during Paul's trial in February 2003 was as thin on detail as her interview with McLean and Pasieka. The judge concluded Eleanor may have believed that "doing sex" was jumping under the covers with a boy.
He ruled that her evidence was confusing and contradictory. Paul was found not guilty.
The process from accusation to acquittal had taken 17 months, a long time for a teenager to live under the shadow of a sexual assault charge.
The experience took its toll on him. Paul left Saskatchewan soon after his acquittal, telling his mother he will never live in this province again.
He calls Saskatchewan "an evil place," says Jessica.
"Katy lived very much in her own world."
Whereas Eleanor's confused testimony saw Paul's acquittal, the guilty verdict against Jonathan and the charge against Tom were based entirely on statements made by Katy during her videotaped interview with McLean and Pasieka, and later in court during Jonathan's trial.
Katy was severely impaired by FASD, to an extent far greater than the other kids.
Elizabeth Harms of the Hope Centre says that Katy "lived very much in her own world," unable to tell fact from fiction.
"Even in the simplest of situations, such as if she was eating breakfast and you asked her if she was eating breakfast, she'd say no, I'm not -- even as she continued to eat."
Social Services would have had access to Katy's medical records from the time of her adoption, but it's not known whether Const. McLean was told that Katy was disabled.
Const. McLean implies to Katy, as she did to Eleanor, that the interview is private. "[W]hatever we say here, we're not going to tell everybody [although] we have to tell our bosses."
McLean tells Katy what the interview is about. "[W]e talked to [Eleanor] and we would like you to tell us if something happened that makes you feel yucky."
Saskatoon psychologist Dr. James Arnold believes McLean led Katy by referring to the previous conversation with Eleanor.
"It's she told us -- now you tell'," Dr. Arnold wrote in an analysis of the interviews. "This is leading . . . I wonder if [Katy's] statement is truly independent of [Eleanor's]."
Katy tells McLean that she and Jonathan "do sex at home when mom's gone sometimes, stuff like that."
Katy says she and Jonathan "lay on top of each other and kissed and stuff" and she "sucked his penis," and that this has happened "100 times" in the last two years. She also said she'd had sex with Paul once when she was 10, but had otherwise never had sex with anyone else.
It is this claim -- that Katy had sex with no one but her brothers -- that would later lead to Jonathan's conviction. Because the judge found her knowledge of sex to be convincing, and because he believed she had only ever had sex with Jonathan (apart from once with Paul when she was younger), he decided that the source of her knowledge must have been her sexual relations with Jonathan.
McLean asks, "When you have sex, what private parts are you using?" and Katy answers, "my hole and stuff" and, of Jonathan, "his penis."
She doesn't say what Jonathan does with his penis, if anything, until McLean asks, "What would he do with his penis when you guys were having sex? Where would it go?"
And Katy responds with, "In my hole."
(The leading questions about penetration continued during Jonathan's trial, when the Crown prosecutor was the first to mention it, asking Katy: "Has anyone else ever put their penis into your vagina?" -- before Katy had testified that anyone had done so, never mind anyone else.)
Katy then tells McLean that her dad had once asked her to take her clothes off and do naked "jumping jacks" in exchange for a box of crackers. On another two occasions, he had touched her breasts, she says, and looked at her genitals.
"Jumping jacks were part of Katy's therapy," says Jessica. "She had poor muscle tone and no co-ordination, so we got her to do jumping jacks. With her clothes on, of course."
It was solely on the basis of this claim, made almost in passing during Katy's interview, that Tom was charged with sexual assault, a charge that still shows up on the Canadian Police Information Centre (CPIC).
Katy clearly knows more about sex during her interview than Eleanor did, but doesn't seem to understand the mechanics of it.
She can't say what an erection is, noticing no difference in Jonathan's penis before and after sex. She doesn't know the words "ejaculate" or "come." By "get off," she understands "like you're done sex." She can't explain what she means by that, and doesn't know whether it happens to Jonathan, although she says it sometimes happens to her.
But crucially, at Jonathan's trial 14 months later, Katy's sexual knowledge had changed beyond all recognition.
She was able to offer the court detailed descriptions of an erection, ejaculation and semen.
The differences between her sparse videotaped answers and her expansive testimony in court could be attributed to different interview techniques. The Crown prosecutor asked questions of Katy in a way that extracted a lot of detail from the girl, whereas Const. McLean did not.
But another possibility is that, after 14 months in foster care, during which time she was in several different homes, Katy had acquired sexual knowledge elsewhere.
Shortly after being taken into care, Social Services arranged for the girls to be given birth control injections because it was feared they were sexually active.
The need to protect the girls against pregnancy is significant. If Katy was sexually active between the time she left home and the time she testified against Jonathan, it means the detailed knowledge of sex she displayed in court did not necessarily derive from having sex with her brother.
"I want to protect something called a family."
McLean and Pasieka interviewed Adam after the girls. He was just 15 at the time. He had been removed from his home without being told why. He wasn't told he could have a parent or lawyer present during the interview. Although asked whether he'd witnessed or committed a sexual assault, he wasn't cautioned.
"It was the worst day of my life," Adam told The StarPhoenix.
In fairness to Const. McLean, she conducted the interview carefully, asking no leading questions.
Nevertheless, Adam appeared to be on the verge of emotional collapse.
Adam tells Const. McLean that the girls would run into the boys' room at night and would dive under the covers with Paul and Jonathan. He says he doesn't know what, if anything, happened then.
All he knows is that he didn't have sex with the girls, and he didn't see anyone else do so either.
He confesses to a vague memory of something sexual when he was about seven, which McLean refers to as playing "doctor."
Adam later told the court he was recalling how the girls used to masturbate when they were little.
McLean and Pasieka keep pressing him: "This is serious, Adam. It doesn't get much more serious than this," and "Don't zone out on us, Adam."
Adam looks humiliated and distraught, weeping openly and begging McLean to tell him what's to become of his family.
He told The StarPhoenix: "I just started babbling. I couldn't think straight."
Susan Pasieka placed Adam in foster care for five weeks after the interview, saying he was in need of "protection," during which time he says he was discouraged from phoning his family.
"They didn't say I wasn't allowed to, " he later wrote to friends, "but they strongly implied it. I learned that social workers are good at strongly implying things."
One third of the way through Adam's interview, Const. McLean tells him that police will be laying charges.
Jessica was also told during her interview that charges would be laid.
"On Sept. 19, they took me into this room," says Jessica, "and Const. McLean told me they were charging [my family] and taking the kids away. At that point they would only have interviewed Eleanor and Katy."
That Const. McLean knew charges would be laid when she was speaking to Jessica and Adam, means she took that decision before completing her interview with Adam, before the accused had been interviewed, before the RCMP had a chance to look for other evidence, and before the girls had been examined by a doctor.
Dr. Novick Brown of the Fetal Alcohol and Drug Unit in Seattle told The StarPhoenix: "Unfortunately, the traditional approach by the system [to sexual acting out between FASD children] has been an assumption that the allegations are valid, an immediate separation of alleged victims from alleged perpetrators . . . and vigorous prosecution of the alleged perpetrators as criminals.
"[This] is an abrupt, knee-jerk response . . . Social workers have a duty to ensure . . . the well-being of all the children in a family unit. To essentially write off the welfare of some of the children to "protect" the other children in a family on no more than an allegation is, in my opinion, a mistake that often has tragic results . . . Destruction of a family is the last resort, not the first."
Despite his youth and his obvious terror, Adam hits the nail on the head when McLean asks him if he wants to protect his brothers.
"No," he replies. "I want to protect something called a family."
Despite the many obvious differences between Katy's videotaped interview and her later testimony, Jonathan was found guilty of sexual assault on Dec. 13, 2002 and sentenced to 18 months probation.
Judge Ed Gosselin noted that "the prosecution's case rests entirely on [Katy's] testimony and videotaped statement." While he found some of the questions during Katy's interview to be "leading and suggestive," he nevertheless found her evidence "convincing and compelling."
Crucially, he wrote: "The nature and details of her description [of sex] convinces me that it was formed from personal experience [and] that the sexual activity she described took place with [Jonathan]."
Doubts had surfaced within the department about the children's credibility
Judge Gosselin lacked a vital piece of information when he found Jonathan guilty. He didn't know that Social Services had commissioned clinical psychologist Dr. Theresa Zolner, then an assistant professor at St. Thomas More college, to assess Eleanor, Katy and Ben -- apparently because doubts had surfaced within the department about the credibility of the children's statements.
The Zolner report contains a crucial passage suggesting that Katy, contrary to her testimony, had admitted being sexually active with someone other than her brothers.
The report became the central plank in Jonathan's appeal -- on the grounds that it constituted "fresh evidence" -- which was heard on March 2 this year before Mr. Justice Gerald Allbright of the Court of Queen's Bench. Jonathan was represented by Robert Borden.
The Crown prosecutor asked Gail Hartsook, a former regional director of Social Services, why the department had asked Dr. Zolner to interview the children.
Hartsook replied: " to assist us in determining what information [the children] could realistically be expected to provide to us, given that some of the children had been identified to have some disability. How credible the reports might be that the children made to us."
This is an astonishing admission -- that nearly a year after the family had been torn apart and brought to the brink of bankruptcy, after charges had been laid, and after the kids had been made permanent wards of the province, all on the basis of the children's claims, Social Services still didn't know whether to believe them.
The Zolner report is important because it flatly contradicts Katy's court testimony that she'd only had sex with her brothers, and only Jonathan recently, a claim that led the judge to decide her sexual knowledge must have come from Jonathan.
Katy, by now 14, told the psychologist she'd had sex with a stranger at a swimming pool. The young man had invited her to go with him to buy snacks, Katy said, but after taking her to a park on his bicycle, he'd had sex with her instead.
Yet two months after telling Dr. Zolner this, Katy testified at Jonathan's trial that she'd only ever had sex with Jonathan, and once with Paul.
Even if Katy made up the swimming pool claim, it means she makes up stories about sex. True or false, the swimming pool claim renders her court testimony unreliable.
Judge Allbright agreed. He overturned Jonathan's conviction on March 11, writing in his decision: "It is difficult to speculate what [the trial judge's] assessment of credibility would have been had there been another possibility for the source of the complainant's knowledge of sexual matters. "
But the appeal left two important questions unanswered:
Did anyone from Social Services know about the swimming pool claim before Jonathan's trial?
Why did Social Services ask a psychologist to assess the credibility of the children's statements, but then fail to ensure they received the assessment in time for the trial?
Dr. Zolner told Judge Allbright that she often discusses the contents of her reports informally with Social Services before submitting them, but without her notes couldn't remember whether she'd done so on this occasion.
As for the timing of her submission, she testified that the usual turnaround time for her reports is three months. She interviewed the children in September 2002, so Social Services would have expected her report in December.
Although social workers knew Jonathan was standing trial in November, it seems no one told Dr. Zolner this. When approached for comment by The StarPhoenix, Dr. Zolner said she couldn't discuss particular cases, but indicated the first she'd heard about the criminal proceedings was when asked to testify at Jonathan's appeal in March this year.
In the end, she faxed her report to Social Services two days before Christmas 2002 -- without realizing it, too late to help Jonathan, who'd been found guilty 13 days earlier.
"I miss my family a lot and would like to go home. I wish I could see my mom and dad again."
Little Ben probably got the worst of the deal. The 11-year-old was the adored and dependent baby of the family. Photographs show a chubby-cheeked little boy who's always laughing. He idolized Adam and had just become a boy scout so he could follow in his footsteps.
"I hoped and hoped for the longest time we'd get Ben back," says Jessica. "We tried but none of these things go anywhere. If Social Services doesn't want to send the kid back, it doesn't matter what you do."
In the spring of 2002, Elizabeth Benson, a family friend, bumped into Ben at a fair. "I asked him how he was doing," she told The StarPhoenix, "and he said he missed his mom and he wanted to go home.
"My heart really went out to him because I'd been close friends with the family and I knew what was happening.
"So I said, if you maybe wrote a letter -- I knew of the Children's Advocate -- and [Ben] said he would need help He told me what to say, and I quickly wrote it for him The words are exactly his."
Ben's letter reads: "I miss my family a lot and would like to go home. I don't want to go to a different foster home in the summer. I wish I could see my Mom and Dad again. I can see [Adam] but not too often. I'd like us all to be a family again."
Elizabeth sent the letter to the Children's Advocate in Saskatoon on Ben's behalf.
The advocate's office replied that Ben would have to call their office personally to ask for help. "[I]t is our practice to take direction from a child or youth if they are able to articulate their issues related to service they are receiving," they wrote.
In fairness to the advocate's office, they're not able to say whether they later tried to help Ben. All that's known for sure is that he never got to go home.
He'd had no legal representation during the process of being removed from his family and subjected to a videotaped interview. He wasn't involved in the sexual abuse claims. He'd been separated from his pets, his boy scouts and his beloved older brother.
He wasn't even allowed to say goodbye to his mom and dad.
"All I know is that I loved them. I loved all of them. And I still do."
For weeks after the kids were removed, Jessica did nothing. The lunch table set for five stayed just as it was.
"Nothing moved in the house," she says. "We never went in the girls' room again, not until we had to sell our home to pay the legal fees during Jonathan's trial."
She virtually stopped eating and sleeping. "I kept thinking they'd talk to me, that if they didn't talk to me today, they'd talk to me the next day and someone would get this sorted out. But it didn't happen."
Financially, defending Tom and the boys has cost the family everything they had, and they didn't have much to begin with. Before they found Robert Borden in the summer of 2002, the family had hired several lawyers. One of them was meant to be court-appointed but he apparently forgot to send a form in, leaving Jessica to pay his fee.
"I was paying, it seemed, like $1,000 a week to a lawyer," says Jessica. "Many [of my customers] paid us for the whole year . . . that fall, and those cheques went straight to lawyers, but then I had no money coming in for the rest of the year Jonathan paid some legal fees himself, something that most 16-year-olds don't generally end up doing."
They sold their home and land to pay Jessica's mom back for money she'd advanced them. Adam had to shelve plans to finish his education because the family can't afford the fees.
Jessica's friends and neighbours have rallied round, sending dozens of letters of protest and petitions to Social Services. This much is not in doubt: the family has the support of their community.
"I haven't cried yet," says Jessica. "I almost cry on Ben's birthday, but I just can't. I haven't been able to grieve because it's not over. It feels like it'll never be over.
"All I know is that I loved them. I loved all the kids, all of them. And I still do."
Another family destroyed Rush to lay charges tears family apart By Sarah Gibb for The StarPhoenix
A decade after the Martensville and Klassen scandals, yet another Saskatchewan family has been destroyed by sexual assault allegations.
The family's story is told today for the first time.
It's the story of an ordinary couple who adopted five disadvantaged kids -- four of them damaged by Fetal Alcohol Spectrum Disorder (FASD) -- and provided them with a loving home.
Ten years later, after two of the kids made unsubstantiated allegations of sexual abuse, three family members were branded as sex offenders and dragged through the courts, forced to sell their home, cattle and land to pay for their legal defence.
It's a story born out of the dynamics of a blended family living under one roof in rural Saskatchewan, where the kids occasionally played "doctor" when they were small. As they got older, two of the girls, aged 13 and 14 -- both severely disabled by FASD -- would bug their brothers by running into their bedroom at night and jumping under the covers with them.
The question is whether what happened under the covers became more than just kids goofing around.
The girls say they had sex with two of the boys. Although they were all teenagers, the age difference would make the boys technically guilty of sexual assault.
The boys say they didn't have sex with the girls, and that they were fed up being pestered by them.
And that's where the evidence ends.
Rather than take time to help the family resolve the issue -- by offering counselling, or by removing the girls or boys from the home as a last resort -- Social Services and the RCMP turned up at the family's farmhouse without warning; took four of the children into care; conducted videotaped interviews with the kids that show leading questions were asked; asked one brother, aged 15, if he had witnessed or committed sexual assault without advising him of his legal rights; then charged two other brothers and the father with sexual assault based solely on those interviews, with no corroborating evidence.
Information presented at one of the subsequent trials shows that the decision to lay charges was made within hours of the police becoming involved: before the interviews had been completed and before anyone had even looked for other evidence.
The parents were not allowed to say goodbye to their children. Three of them were made permanent wards of the province and have been moved from one foster home to another ever since.
The charge against the father was stayed after 15 months, although only after the Crown prosecutor offered him a deal to plead guilty.
One brother was found not guilty and refuses now to live in Saskatchewan because of his experience. The second brother was found guilty, but had his conviction overturned on March 11 by Mr. Justice Gerald Allbright of the Court of Queen's Bench.
The final injustice is that the family has been threatened with legal action if they take steps to publicize their situation.
Their lawyer, Robert Borden, recently raised the case directly with Premier Lorne Calvert.
Borden successfully represented the Klassen-Kvellos in their malicious prosecution case after they were falsely accused of sexually abusing three foster children in 1991.
"My criticism of justice officials (then) was that they were too quick to lay charges, and that charges themselves can destroy families and individuals," Borden told The StarPhoenix. "I make the same complaint today. Nothing has changed.
"I find that in this province in particular, some prosecutors, police officers and social workers are not prepared to stand back. They hear an allegation, then in a cavalier and uncaring way, lay a charge."
The StarPhoenix is prevented from publishing information that would identify the girls or their accused brothers. The names of the family and their friends have been changed, as have some personal details, and the name of the town they lived in has not been used. All other names and events are real.
"There are good reasons to have laws that prevent the publication of names," Borden said. "You don't want the names of young offenders or child complainants to be out in the community. But there are times when injustice is so rife in relation to a town or city or a certain community, that you've got to stop it, and the only way you can stop these practices is by letting the public know about them."
Lives ruined when officials heed only children Special to The StarPhoenix, May 20, 2004
Editor's Note: The following personal viewpoint was written by the parents featured in the story Another Family Destroyed (SP March 27). They cannot be identified because to do so would contravene a court order that protects the identity of the children involved.
We, as a married couple, made a choice to help needy people. We didn't go to a Third World country. We opened our home and our lives to children who were disadvantaged because of their birth mother drinking alcohol while pregnant.
We adopted older children who needed a home, children who might never had been adopted because of their birth defects.
Even though Fetal Alcohol Spectrum Disorder is 100-per-cent preventable, there are many, many children being born today with this disorder.
We had biological children before we adopted. As a family, we gave everything we could to help the adopted children. We loved them as our own and there was never a reference made about "who came from where."
We all lived with the results of FASD -- learning inefficiencies, inability to project consequences, trouble separating fact from fantasy, behavioural problems including lying and stealing. Among all of this, we were still able to be a very public family that participated often at many community functions and activities.
In order to do our best in providing for these children, we researched FASD. Our eldest discovered a book about a family who used a therapy program that helped. This led us to the Hope Centre which developed programs that made it possible for even our most severely FASD child to begin to learn and begin to overcome some of the most traumatic behavioural problems.
The program took hours of daily one-on-one therapy -- a parent working with each child individually. The program helped the children develop in areas of memory retention, speech, gross and fine motor ability and academics. We were also able to give children with learning inefficiencies skills in music, art and dance which gave each child a talent that provided much-needed self-esteem. We always felt that there was hope for these children.
We had spent years of our lives loving, caring for and helping children who had a lot of problems. It was not easy. Any family that has adopted FASD children would know what we mean.
Older siblings were not resentful of parents' time spent with younger siblings. We did not have a lot of financial resources. We shared what we had and gave of our love and time.
Then, one day, after authorities spoke to two adopted daughters for about 45 minutes each, we were told that they were apprehending four of our children and charging three family members. We were (and still are) in shock.
We had no idea what happened or what this was about. We did not know what to do. We really felt that someone would talk to us and this would all be sorted out.
This never happened. In fact, we, and others are still wondering why no one ever listens to parents, family friends and older siblings. Where is the "balance" in all of this?
Our lives changed forever. We were told that we are not allowed to know where our children are or to see our children. Over the years, we have tried to get a change to the order that separates our family. Everything is denied and now we have been separated for almost three years.
Young people in our family have had to live with criminal charges for years, have had to cancel career and educational plans, have tried to hide from it all, have tried moving away and running away.
Nothing helps, except our family's faith in God and our knowledge that we did help children and that they had a family, they were loved and were given a chance at a productive life which, unfortunately, was taken away from them.
Our older children continue to be thoughtful, kind, caring individuals. Two of them have worked as volunteers in Third World countries. One continues to work with special needs children. They are trying to carry on under circumstances that only others who have lived with FASD children and have been falsely accused can ever understand.
Reporter Sarah Gibb is one of the very few people who has taken the time to research our family's life and story, talk to people who knew us well, and talk to FASD professionals.
The public needs to realize what can happen when:
- Children tell stories,
- People in roles of leadership feel they must report to Social Services,
- No one takes the time or cares to talk to the family, to others who know the family or to professionals who work with FASD children.
Joanne Crofford and Frank Quennell Special to The StarPhoenix Friday, April 23, 2004
Following is the personal viewpoint of the writers. Crofford is minister of Community Resources and Employment. Quennell is minister of Justice and Attorney General.
We have a number of significant concerns about both the content and tone of the story Another family destroyed/Where angels fear to tread (SP March 27).
It sends the message that the most vulnerable people in our society -- in this case, children with cognitive disabilities -- are not entitled to the full protection of the law, that their word is somehow less valuable or believable than the word of others in society.
The story also puts into question the credibility of the child protection system.
As ministers of Justice and Community Resources and Employment, we are taking the extraordinary step of replying to the story, with some details of the case, to maintain public confidence in how we take care of children who need protection, so that victims of sexual and physical abuse continue to come forward.
In the case you reported, the Department of Community Resources and Employment, formerly Social Services, and the RCMP acted on the basis of two separate, credible reports of child sexual abuse.
The RCMP and the DCRE have a legislated obligation to investigate reports of child abuse. The RCMP investigates to determine if a criminal offence has occurred, as defined by the Criminal Code. DCRE investigates to determine if a child is in need of protection, as defined by the Child and Family Services Act.
Balance is crucial to ensure children are heard, that the criminal investigation proceeds and due process is provided to the accused person. The actions of the RCMP and DCRE are subject to review and scrutiny. Ultimately, those actions must satisfy the legal requirements of both criminal court and family court.
The family was represented throughout both the criminal proceedings and family court hearings by senior, private counsel and had the full benefit of due process.
The criminal matters were heard by three judges, none of whom raised any criticism with respect to the actions of police, prosecutors or social workers.
A judge of family court found the children to be in need of protection and made an order placing the children in the care of the minister. The family has had the opportunity to have the court orders changed, and still does.
The story contained a number of factual errors. As an example, it says police laid charges within hours of becoming involved. In fact, charges were laid 20 days later.
It suggests that the psychologist's report was not properly disclosed to the defence counsel. In fact, as noted by Mr. Justice G. N. Allbright on the appeal case, the prosecutor provided the psychologist's report to defence counsel as soon as it was received and before sentencing. A criminal trial does not conclude until the sentencing hearing has concluded.
Defence counsel had a number of options on receiving the report, including reopening the guilty finding or asking for a mistrial.
The story reports that the father was not interviewed before being charged. In fact, the RCMP gave the father an opportunity to make a statement, but he refused to do so.
It is clear that The SP made little effort to check the information it published to ensure it was accurate and balanced.
Individuals with disabilities and children are among the most vulnerable people in our society and are entitled to the full protection of the law. This sensationalized, tabloid-style news report will only discourage victims of abuse from coming forward. And, as a result, they will not receive the help and protection they need.
Ministers' attack on story unfounded Kids' families have rights too Sarah Gibb, The StarPhoenix, Monday, April 26, 2004
Following is the personal viewpoint of the author, a local freelance writer.
Justice Minister Frank Quennell and Community Resources and Employment Minister Joanne Crofford (Story could damage abused children's rights, SP April 23) accuse me of having written an unfair and inaccurate article about the child protection system in Saskatchewan (Another family destroyed, SP March 27).
The ministers' letter contains significant errors, which I would like to address.
My story concerned a Saskatchewan family who lost three adopted children after two of them accused family members of sexual abuse. For the record, I can substantiate every line of that article. Based on weeks of research, I'm also certain there are no significant omissions.
The ministers claim the story contained the following three errors:
"As an example, it says police laid charges within hours of becoming involved."
Not so. My story said police decided to lay charges within hours of becoming involved. On the day the kids were removed, the RCMP investigating officer told family members, during videotaped interviews, that charges would be laid. This was before the alleged victims had been medically examined, before the accused had been interviewed, and before the police had even looked for corroborating evidence (not that they ever did).
"(The story) suggests that the psychologist's report was not properly disclosed to the defence counsel."
This implies I accused the Crown prosecutor of impropriety. Not so. I accept that the prosecutor disclosed the report to the defence counsel as soon as he received it, shortly after one of the accused was found guilty. The report matters because it contained information that might have led to an acquittal. My question was simply this: Was anyone from Social Services made aware of the contents of the report in time for the accused's trial? The psychologist testified that she often discusses her reports informally with Social Services before submitting them, but couldn't recall whether she'd done so in this case. Therefore, my question remains.
"The story reports that the father was not interviewed before being charged. In fact, the RCMP gave the father an opportunity to make a statement, but he refused to do so."
Have the ministers seen documents confirming that the father was offered an interview? He says he was not, and his wife knows nothing of such an offer. The father was out of town when his children were removed. He was told to go to the police station upon his return, and was charged on arrival by the officer in charge of the case. He says she didn't request an interview, and the court records make no mention of any attempt to interview him.
These are the only three "errors" the ministers were able to cite out of an 8,000-word article.
The ministers defend the actions of the RCMP and Social Services, stating they acted on two "credible" reports of sexual abuse. But a report sufficiently credible to trigger an investigation may not be enough to lay charges. In the case in question, the removal of the children, the charges and the prosecution were based entirely on the claims of the two children, one of whose statements a trial judge later called confusing and contradictory, not "credible."
The ministers further state that: "A judge of the family court found the children to be in need of protection ..." This implies there was an examination by the family court of the abuse allegations. There was not. The mother was persuaded to give up three of her adopted children in exchange for the return of her biological son, who had been taken into foster care. The three children were found to be in need of protection only because the mother did not know how, and could not afford, to fight to keep them.
The ministers say my article sends the message that children with cognitive disabilities are not entitled to the full protection of the law. My story implies nothing of the sort. Every child is entitled to the protection of the law. The only message my story was intended to convey is that their families have rights too.
FASD effects ignored by investigators The StarPhoenix, Tuesday, April 27, 2004
The only flaw with the story Another family destroyed (SP March 27) is the second title Where angels fear to tread. It should have been Where fools rush in.
A key element of this tragic situation is that the two girls making the allegations are the unfortunate victims of fetal alcohol spectrum disorder. The original social worker on the case tried to refute this fact, the government powers still try to ignore it, and the court systems are unprepared and not educated to deal with it.
FASD does not affect the procedure, policy and protocol or legalities, but it most definitely affects what is fact and what is fantasy.
Sarah Gibb obviously did more research for her story than the social workers did for their investigation. She quotes experts in the field of FASD. They give facts based on research that coincide with what friends and family of Tom and Jessica have observed for years. Children who are victims of FASD think, relate and speak differently from other children. To base an investigation on their interview and ignore presentations of truth is a grievous error.
Nothing in the story would give the impression that suspected child abuse should not be reported. The story's theme is the tragic outcome of a biased investigation.
Tom, Paul and Jonathan were always treated as guilty until proven innocent. Tom's charges were stayed, Paul was found not guilty, and a judge found that evidence had been withheld in Jonathan's case that could change the outcome in a new trial.
Joanne Crofford and Frank Quennell are obviously worried about public opinion; they should take the complete, unbiased, original disclosure to the experts in the Fetal Alcohol and Drug Unit in Seattle and request a thorough examination and report.
Then, new educational programs should be developed to be mandatory for all social workers. This mistake has happened far too many times.
Quennell under fire for letter Minister defends comments on article Gerry Klein, The StarPhoenix, April 27, 2004
The Saskatchewan Party has called for Justice Minister Frank Quennell's head for writing a letter to The StarPhoenix commenting on an article published in March dealing with a sexual assault case.
In a letter jointly signed by Quennell and Community Resources and Employment Minister Joanne Crofford, the ministers say they had to take the "extraordinary step of replying to the story" in order to maintain public confidence in how the province deals with child protection and sexual assault issues.
Crofford told the legislature she signed a special order under the Child and Family Services Act authorizing the release of information on child protection proceedings that would normally be protected by law.
The attorney general is the highest justice official in the province and is responsible for seeing that justice is carried out -- both for the accused and society, said Don Morgan, the Sask. Party justice critic.
"And that is why the justice minister never comments publicly on criminal cases that are before the courts," he told the legislative assembly.
In the opinion piece published in Friday's StarPhoenix, the two ministers make references to "two separate, credible reports of child sexual abuse," the representation the family had by private council and that three judges considered the criminal matters and none raised concerns with respect to the actions of the police, prosecutors or social workers.
On Monday, Quennell told the legislature the letter didn't address the case that is still before the courts, but instead commented on the March 27 article.
It is imperative for the ministers to respond because the article may have prevented other victims from coming forward with their complaints or it may have resulted in case workers being too embarrassed or intimidated to do their jobs, he said.
"I have no commentary on the trial or the appeal decision or the appeal that is underway," Quennell told reporters outside the legislature. "That would be inappropriate.
"My comments are about the article."
And there would never have been a letter to the editor written "had due diligence been done in writing (the article)," said Deb McEwen, a spokesperson for the Justice Department.
But Robert Borden, the lawyer who represents the family involved in the case, is hard-pressed to identify where those inaccuracies might be.
"The story is accurate and clearly that is the position of my clients," Borden said in an interview. "There is nothing that I know of in that story that is inaccurate, however -- as it relates to the ministers' letter -- there is a plethora of misstatements."
Borden is concerned that by bringing the matter into the public realm after justice officials made the decision to take one of the cases to the Court of Appeal, Quennell may have influenced the outcome.
When the original article appeared, the Opposition avoided asking questions about it because some matters were still before the courts and it worried about jeopardizing the case, Morgan said in an interview after question period.
"If you are going to comment at all, you wait until after the facts have been dealt with in court."
When the minister wrote the paper to complain, however, he not only put in doubt the outcome of the trial, he may have given the accused a case before the Charter of Rights and Freedoms that would allow him to get off altogether, Morgan added.
Two of the three cases referred to in the article are no longer before the court, McEwen said. The ministers' letter also made no reference to anyone's names and didn't question witness statements or the actions of officials in the one remaining case.
And before the letter was sent it was scrupulously reviewed to make sure it would not put the other case in jeopardy, she said.
"I can tell you the letter was drafted here in the Department of Justice and it was reviewed by both the director of public prosecutions and the deputy minister to assure it did not threaten any ongoing (court cases)," McEwen said. "The letter was very carefully written to make sure it doesn't do that."
McEwen also pointed out that it's not uncommon for a justice minister using information that is a matter of public record to comment on an issue in the media, but that the decision to use Section 74 of the Child and Family Services Act was unusual.
Tim Quigley, a law professor at the University of Saskatchewan with expertise on criminal law, agrees it isn't unusual for ministers to make public comments on articles that appear in the press.
It is more unusual, however, to have two ministers co-sign a letter, and while it may be unusual for an attorney general to make public pronouncements on matters that could be considered before the courts, it isn't illegal.
John Courtney, a political scientist at the U of S, isn't sure it was a wise political move for the justice minister to make, he said in a separate interview.
"I worry about the precedent this could set," Courtney said.
It is particularly troubling that the ministers took the unusual step of issuing the minister's order under Section 74 to allow them to make statements that would otherwise be protected, he said.
In her statement accompanying the minister's order, Crofford says it is her opinion "the benefit of the disclosure of the facts outweighs any invasion of privacy that could result from the release because of the need to maintain public confidence in appropriate Child Protection proceedings and to avoid harm to any children involved in disclosure of abuse, including children with disabilities."
No minister would take this step unless it was felt something had to be done, and that came about because of the "inaccuracies" in the article, McEwen said.
The Opposition is expected question the minister on details of the story again this week while Borden is recording the letters and debate, perhaps with the view of presenting it to the Appeal Court in order to have the case thrown out.
Calvert defends Quennell James Wood, The StarPhoenix, April 28, 2004
REGINA -- Premier Lorne Calvert brushed off demands Tuesday from the Saskatchewan Party that he fire Justice Minister Frank Quennell for writing a letter to The StarPhoenix commenting on an article published in March dealing with a sexual assault case.
"The minister of justice (on Monday) asked me do I seek his resignation? My answer was an emphatic no," he told reporters.
"He has written publicly to express concerns about a newspaper article in which he believes that there may be some concern the public may begin to question the protection that is offered to children. Out of that concern, he wrote.
"It's not a usual thing that he or any attorney general would do, but in this circumstance, out of his concern, he wrote. On that basis I have no reason, no reason, to ask for the resignation of the attorney general."
But the Saskatchewan Party again hammered at Quennell in question period on Tuesday, saying he should step down because he inserted himself into a criminal trial that is before the courts by writing the letter with Community Resources Minister Joanne Crofford.
Opposition justice critic Don Morgan said it is inappropriate for Quennell to say anything about the court case.
"In this situation, the minister of justice is commenting on the credibility of witnesses and he's commenting on the level of co-operation police received from witnesses and he's discussing the actions of the police during the investigation. These are all part of ongoing criminal investigation and criminal trial," he said.
Quennell said the letter he and Crofford wrote did no such thing and commented only on the March 27 article.
In the letter, published in Friday's StarPhoenix, the two ministers make references to "two separate, credible reports of child sexual abuse," the representation the family had by private counsel and that three judges considered the criminal matters and none raised concerns with respect to the actions of the police, prosecutors or social workers.
There were three cases mentioned in the article. One of them is under appeal by the Crown, which has concerned the defence lawyer in the case that the outcome could be affected by the letter.
Section 110 of the Youth Criminal Justice Act prohibits the publication of the name of a young person or any other information which would identify the young person as a young person dealt with under the Youth Criminal Justice Act. Section 111 of the Youth Criminal Justice Act prohibits publication of the name of a young person or any other information which would identify a young person as having been a victim of, or appeared as a witness in connection with, an offence committed by a young person.
Coram:
Cameron, Jackson & Richards JJ.A.
Counsel:
Anthony B. Gerein for the Appellant
Robert Borden for the Respondent
Appeal:
From: YOA 12/03, J.C. of Melfort
Heard: September 18, 2006
Disposition: Appeal Allowed
Written Reasons: November 24, 2006
By: The Honourable Madam Justice Jackson
In Concurrence: The Honourable Mr. Justice Cameron
The Honourable Mr. Justice Richards Page 1
JACKSON J.A.
[1] F.V. was charged under the Young Offenders Act1 with committing numerous acts of sexual assault on C.V., contrary to s. 271 of the Criminal Code. F.V. and C.V. are brother and sister and both suffer from certain cognitive impairments.
[2] After a trial at which C.V. and F.V. testified, the learned Youth Court Judge found F.V. guilty of the offence charged. On appeal to the Court of Queen’s Bench under s. 813, F.V.’s counsel sought to introduce fresh evidence. It is the admissibility of that evidence which is the subject matter of this appeal.
[3] The fresh evidence takes the form of a report from a psychologist involved in child and family counselling who had interviewed C.V. before the trial. Crown counsel was not given the report until after the conviction had been entered. Upon receipt by the Crown, it was immediately disclosed.
[4] The key part of that report is this:
· [13] . . .
· [C.V.] reported that she likes music, television, biking and “guys.” She appeared preoccupied with finding a boyfriend and frequently discussed going out with boys or watching boys who are “sexy” or “hot.” She said that she has been spending considerable time with “Willy,” an older man she has been meeting who sits on a bench in the business district of her town. She appeared to enjoy the attentions of this man, saying that he gives her candy and “acts nice.” We discussed issues of personal safety, but [C.V.] had difficulty appreciating the inherent dangers of such a situation. Ms. Holmen was advised to monitor this carefully and discuss the situation with local R.C.M.P.
· 1 R.S.C. 1985, c. Y-1. Page 2
· 2 F.S.V. v. The Queen, 2005 SKQB 303 at para. 13.
· 3 [1980] 1 S.C.R. 759.
· 4 Supra note 2 at para. 5
· 5 R. v. Fitton, [1956] S.C.R. 958 and John Sopinka and Mark A. Gelowitz, The Conduct of an Appeal, 2d ed. (Toronto: Butterworths, 2000) at pp. 99-100.
· Her naiveté regarding personal safety and others’ intentions became more clear when she described an incident during which she met a young man at a Saskatoon swimming pool. He invited her to come with him to “get snacks,” and the two reportedly left the swimming pool on his bicycle. According to [C.V.] they went to a park by the river and then, she said, “He had sex with me.” [C.V.] said that she was surprised but thought that she should do what he told her to do and “just get it over with.” She said that when [F.V.] would have sex with her, that is what she would tell herself – “Just get it over with.” [C.V.] said that after the sex was over, the man from the pool “saw some of his friends and said he had to go.” She said she knew the sex was over when his “white stuff” came out. He then reportedly left her by the river to walk back to the pool on her own. 2
[5] The learned summary conviction appeal court judge was required to determine whether the psychologist’s report met the four criteria of R. v. Palmer.3 He answered the various questions affirmatively.4
[6] In sum, the appeal judge allowed the appeal, quashed the conviction and ordered a new trial. With that, the Crown applied for leave to appeal to this Court under s. 839 submitting that the trial judge erred in finding the report constituted fresh evidence warranting a new trial.
[7] The admissibility of evidence is always a question to be determined in the light of what the law is with respect to the particular nature of the evidence tendered.5 The broad question of law is whether the trial judge appropriately applied the Palmer criteria.
[8] We agree with the trial judge that the report meets the requirements of diligence and credibility. The key issues are whether the evidence is relevant Page 3
in the sense that it bears upon a decisive or potentially decisive issue in the trial and whether the admission of this evidence could have affected the result.
[9] Before embarking on any analysis, it is useful to place these questions in some further context. It is significant to note that F.V.’s counsel made an important admission in this Court to the effect that the sexual activity in the park, about which C.V. spoke to the psychologist, could only have occurred after she had been removed from her home and after she had given her videotaped statement to the police. In fairness to the summary conviction appeal court judge, this may not have been knowledge available to the parties at the time of the hearing before him.
[10] The timeline is therefore this: (i) C.V. is removed from her home on September 19, 2001 and gives her statement to the police the same day; (ii) C.V. makes her statement to the psychologist during visits to her office, on either September 7 or 21, 2002, recounting an incident that had taken place sometime between when she gave her statement on September 19, 2001 and the days of those visits; (iii) the trial takes place on November 25, 26, and 27, 2002; (iv) the conviction is entered on December 10, 2002; (v) the psychologist completes her report on December 22, 2002 and forwards it to the Department of Social Services on December 23, 2002.
[11] The significance of the activity in the park for F.V.’s counsel, as set out in his factum, is this:
· 18. In the case at bar, the Respondent has always asserted that he was innocent. The defence of [F.V.] is that sexual activity did not take place by him with his Page 4
· 6 Respondent’s Factum at para. 18 and 19.
· sister, [C.V.]. As it was in R. v. Ross (1993), 81 S.C.C. (3d) 234 (N.S.C.A.), referred to in the appellant’s argument in the first appeal to this Honourable Court, the question of consent is therefore irrelevant. The Respondent seeks this fresh evidence to bolster his own credibility and demonstrate to the judge in the new trial that [C.V.] cannot be believed based on exclusive sexual experiences with [F.V.]. In this case, if [C.V.] is not believed the learned trial judge may believe [F.V.] as there was noting in his original testimony whereby the Court could say that [F.V.]’s evidence was untrue.
· 19. At a new trial it may not be necessary to file the Zolner Report or to call upon the psychologist to give testimony. [C.V.], it is respectfully submitted, may at the next trial on examination-in-chief admit that she had sexual activity on another occasion. She may deny any other sexual activity, in which case she may be cross-examined with or without any reference to the statements she gave to the psychologist, Zolner. Of importance is the fact that the defence counsel will be armed with the information from the psychologist’s report.6
[12] F.V.’s counsel submitted: (i) C.V.’s sexual knowledge as displayed at trial may have resulted from involvement with the individual at the park; (ii) C.V.’s vocabulary and sexual knowledge had advanced by the time of trial from what was shown to the Court in the videotaped statement; (iii) it had advanced because of incidents like that which occurred in the park; and (iv) C.V.’s testimony was made more persuasive by virtue of her greater knowledge. He wanted the opportunity to cross-examine her, with the psychologist’s report in hand, to determine the source of her knowledge.
[13] Assuming that the evidence is broadly relevant, it could not have affected the result. In my respectful view, the summary conviction appeal court judge misinterpreted the trial judge’s reasons in coming to the opposite conclusion on the fourth arm of the Palmer criteria. Page 5
[14] The summary conviction appeal court judge concluded that the trial judge entered the conviction on the footing that the victim had no source for her sexual knowledge outside the abuse by F.V. I will repeat the salient part of the summary conviction appeal court judge’s decision:
· [20] . . . In carefully examining the intent of bringing forth this evidence, I have concluded that it is not designed to show that the complainant is simply less worthy of belief. The evidence has the very real potential to go to the broader aspect of providing an explanation for the complainant's sexual experience resulting from an encounter with someone other than the accused. Further, in accordance with the requirements of s. 276(2), I find that the sexual activity referenced in the report of the psychologist is of a specific instance of sexual activity and is relevant to an issue at trial, that issue being whether the sexual experiences of the complainant resulted from involvement with the appellant or from the individual at the swimming pool in Saskatoon. Further, I am of the view that this evidence potentially has significant probative value and that it is not substantially outweighed by the danger of prejudice to the proper administration of justice. In reaching this conclusion, I am mindful of the catalogue of criteria set forth in s. 276(3), and I am particularly of the view that s. 276(3) is applicable as I find that there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case.
· . . .
· [23] I am also of the view that the evidence is relevant and bears directly upon a potentially decisive issue, that being whether the experience which the learned Youth Court judge concluded the complainant had been through, arose as a result of engaging in sexual activity with the appellant, which he denied, or whether that experience was obtained through the involvement in sexual activity with the individual at the swimming pool in Saskatoon.
· . . .
· [25] Finally, in addressing the fourth criterion, I am of the view that if, on cross-examination this evidence was placed before the trial court, it could have affected the result. I am particularly mindful in this regard of the learned Youth Court judge's comments in his adjudication wherein in part he observed:
· The Court finds the complainant's evidence convincing and compelling. The weaknesses in the complainant's comprehension and understanding of events is what gives her testimony its strength. The Court is convinced that C.V. did in fact experience the sexual activity she describes. These were not events she heard about or saw in movies. They were not part of some sexual fantasy. The nature and details of her description convinces me that it was formed from personal experience. The Court is also convinced that the sexual activity she described took place with F. . . .
· . . . Page 6
· 7 Supra note 2.
· . . . In making this finding, the Court is obviously rejecting the evidence of F.V. There was nothing in F.V.'s evidence, independent of C.V.'s evidence, whereby the Court could say that F.V.'s evidence is untrue.7
[15] Thus, the summary conviction appeal court judge found the report to be “relevant to an issue at trial, that issue being whether the sexual experiences of the complainant resulted from involvement with the appellant or from the individual at the swimming pool in Saskatoon.” While we assume no error on the relevancy aspect of this comment, his conclusion that if “on cross-examination this evidence was placed before the trial court, it could have affected the result” is not supported by the trial judge’s reasons. The trial judge did not find guilt beyond a reasonable doubt on the basis articulated by the appeal court judge. This has a profound effect on the fresh evidence application.
[16] While the summary conviction appeal court judge quoted part of the trial judge’s words at this point in his reasons, for my purposes it is useful to repeat the whole text:
· The Court finds the complainant's evidence convincing and compelling. The weaknesses in the complainant's comprehension and understanding of events is what gives her testimony its strength. The Court is convinced that [C.V.] did in fact experience the sexual activity she describes. These were not events she heard about or saw in movies. They were not part of some sexual fantasy. The nature and details of her description convinces me that it was formed from personal experience. The Court is also convinced that the sexual activity she described took place with [F.S.V.] [C.V.] does not appear traumatized by this experience. She appears for the most part to be a willing participant. She was not bashful or embarrassed when talking about it. In fact I believe she does not have an appreciation that [F.S.V.] may have done something seriously wrong or illegal and that he is in serious trouble. [C.V.] does not understand the seriousness of these allegations or their potential consequences. It was just something that they did that she knew they weren't supposed to do. She appears to like [F.S.V.] and simply stated what they did innocently and in a forthright and straightforward manner. She says that when she Page 7
· 8 Decision of Gosselin P.C.J., December 10, 2002 at pp. 3-4.
· told her father what they did or what they were doing, he told her she shouldn't be doing that because it's illegal. This is not drawing a definitive conclusion on what her father may have said, but it is a description of what [C.V.] says he said. Another example of her innocence about all this is when she asked the police officer, "if we do this again, should we tell you guys?"8
[17] From this I conclude, and with respect to this I am quoting Crown counsel, that the trial judge did not say “I convict because there was no other way for C.V. to know about sexual relations.” He said, instead, “I convict because I can tell these allegations are not made up, but, instead, are a recollection of a series of real events lived by the victim.” The whole package of testimony and evidence convinced the trial judge of C.V.’s veracity and reliability, including her naďve statement, which concludes the videotape: “if we do this again, should we tell you guys?"
[18] Again, I agree with Crown counsel that the summary conviction appeal court judge appears not to have noted or given sufficient effect to the fact that C.V. alleged prior sexual experiences with her brother D.V. and with her father. On the videotaped statement played in court during the voir dire at the trial, C.V. alleges her brother D.V. and her sister A.V. were having sex, which gave C.V. yet another possible basis for sexual knowledge. C.V. also testified to having watched a movie with explicit sexual content.
[19] While the Court is aware that the information alleging sexual abuse against C.V.’s father was stayed after F.V.’s trial and that D.V. was also acquitted of sexual assault against A.V., these facts, subsequent in time, obviously could not have been known to the trial judge. From the trial judge’s Page 8
perspective, he had a witness before him who was testifying to sexual experiences with three people, F.V., her father and D.V., and knowledge of sexual experiences between D.V. and A.V. and from having watched a movie. For the trial judge it was still a possibility that C.V. had been sexually abused by someone else or derived her knowledge from some other source. Nonetheless, he concluded based on the videotaped statement taken the day she was removed from her home, and her testimony before him over one year later, that “the sexual activity she described took place with [F.V.].” Thus, the facts of the acquittal and the stay are essentially irrelevant in determining whether the report could have affected the result in F.V.’s trial.
[20] The fresh evidence consists of a single act of sexual conduct which took place at a park after a visit to a pool at a time after C.V. had already given her videotaped statement indicating sexual abuse by F.V. There is no comparison between the allegations made against F.V. and those made against the male in the park. The allegations against F.V. involve a pattern of oral sex and sexual intercourse in settings unrelated to the park incident (typically in F.V.’s bedroom), which took place on many occasions. There is no support for the appeal court judge’s conclusion that C.V. could be confusing who had sex with her or that she was somehow transferring some other sexual experience that she had had with someone else to her brother. It should also be noted that C.V., in telling the psychologist about the park incident, referred to the activity with F.V.
[21] As I have already indicated, the trial judge’s decision was dependent on the candid and naďve nature of C.V.’s testimony. It was the manner in which Page 9
she told of the abuse, and her repetition of it from the videotape until trial, that persuaded him that her evidence was truthful and could be relied upon.
Thus, in our view, the report, or information gleaned from it, could have made no difference.
[22] In the result, leave is granted and the appeal is allowed. The fresh evidence in the form of the psychologist’s report is not admissible on appeal. The conviction is, therefore, restored. F.V. was sentenced on January 27, 2003 to 18 months probation. According to the Court’s records, this sentence has now been served.
DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of November, A.D. 2006.
____________________________________
Jackson J.A.
I concur ____________________________________
Cameron J.A.
I concur ____________________________________
Richards J.A.
"You don't want the names of young offenders or child complainants to be out in the community. But there are times when injustice is so rife in relation to a town or city or a certain community, that you've got to stop it, and the only way you can stop these practices is by letting the public know about them."
Legislation, Existing Protocols and Best Practices Training for Service Providers and Caregivers of People with Developmental Disabilities in the Criminal Justice System
Page 31 Interviewing The intellectual impairment of persons with developmental disabilities raises necessary concerns regarding the reliability of how they give and receive information in the context of a police investigation. Memory problems, as well as a limited capacity to concentrate for extended periods of time will necessarily impact the quality of the interaction between the individual and the police. Persons with developmental disabilities may also have difficulties with the types of questions asked by police, such as times, dates, and descriptions,41 thereby further jeopardizing the reliability of the information obtained.
Specific research on fetal alcohol spectrum disorder reveals associated problems with memory, language and social skills. 42 Although people with FASD may learn to exploit nonverbal cues to maintain conversational flow, their degree of comprehension may be much lower than it appears. For instance, they are unable to understand subtleties of language and idioms or sarcasm are likely to cause confusion. 43
These cognitive impairments can easily influence the tone or outcome of a police interview. For one thing, interviews may take a long time owing to problems of understanding. The failure of police to appreciate the limited capacity of the individual to concentrate for extended periods will further threaten the reliability of information obtained over a long period of time. The inability of individuals to accurately recall specific details, such as dates and times, may be perceived as evasiveness or, in cases where the individual “fills in” these details, may take the interview down a number of dead-end paths. This potential glibness or confusion of an accused could easily be mistaken by police as deception or indifference.
In order to increase the reliability of information obtained from developmentally disabled persons in police interviews, police will first have to be aware of the existence of a possible disability and, second, systematically alter the tone of the interview to accommodate the intellectual capacity of the accused. Again, in the absence of specific training and procedures, the likelihood of this outcome is diminished.
False Confessions There is no shortage of evidence that even people without any apparent intellectual disabilities are susceptible to suggestion and diverse social pressures. The case law and scientific literature offer a number of examples of both children and adults having been induced to describe non-experienced events. 44
The tendency among people with developmental disabilities to provide false statements and false confessions should therefore come as no surprise. Indeed, intellectual disability is one factor that increases the likelihood of an individual falsely confessing to a crime he or she did not commit. 45 One explanation for the increased prevalence of false confession is that persons with developmental disabilities may be over-anxious to please authority figures with the result that they are more susceptible to suggestive questions. 46
Regardless of the questionable reliability of a statement of admission, the inculpatory value of a confession cannot be overestimated in the case building process.
All but the most scrupulous police and prosecutors may be disinclined to look beyond the face validity of an admission of guilt, particularly when it conforms to the police theory of the crime. 47 Indeed, this phenomenon is evidenced in the recent acquittal of Simon Marshall by the Quebec Court of Appeal after it was discovered that he had been wrongfully convicted of several charges of sexual assault based on false confessions. 48
Consideration of the Problem by Other Jurisdictions Other jurisdictions have considered the importance of explicit police practices for dealing with persons with developmental disabilities and have recommended the development of formal police procedures for conducting criminal investigations. For instance, New South Wales in Australia proposed a Code of Practice to replace the existing Police Commissioner’s Instructions. The Code of Practice, which would be readily available at all police stations for consultation by police officers, detained persons and other interested persons, would establish explicit procedures for police investigations involving people with an intellectual disability. 49
Due to its comprehensive nature, it bears repeating here the more relevant aspects of the proposed Code.
44 See, for instance, Kvello v. Miazga, 2003 SKQB 559 and E.R. Loftus, “Creating False Memories,” Scientific American 277 (September, 1977), 70-75 cited in T.E. Moore & M. Green, “Fetal Alcohol Spectrum Disorder (FASD): A Need for Closer Examination by the Criminal Justice System,” 19 C.R. (6th) 99 at 102. 45 G.H. Gudjonsson, The Psychology of interrogations and confessions: A Handbook. (Chichester: Wiley, 2003). 46 See R. Perske “Thoughts on the police interrogation of individuals with mental retardation (1994) 32 Mental Retardation 377-380. 47 T.E. Moore & M. Green, “Foetal Alcohol Spectrum Disorder (FASD): A Need for Closer Examination by the Criminal Justice System,” 19 C.R. (6th) 99 at 103 [hereinafter FASD: Moore & Green]. 48 Marshal c. R. 2005 QCCA 852. For further discussion of this case, see articles online at: http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1125356026699_57/?hub=Canada;and http://www.cbc.ca/story/canada/national/2005/08/10/wrongful-conviction-050810.html?print 49 NSW Report, supra note 3.
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