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Volume 1 - Page 20
The other important thing to note in this particular case is that the - Donald Ross and Helen Ross are the natural parents of all three victims. Consequently, any type of sexual activity with them is illegal, could be prosecuted for. It doesn't matter what they did, if it's conceived or construed as sexual assault by the Court, then it's illegal, period, simply because of that relationship, not to mention because of the age of the children.
And in respect of Donald White, again, at the time the Information covers and still up to this time, all the children were under age and there could have not have been any type of legal sexual activity between them, even though there's no blood relationship between Donald White and victims. So again, any type of sexual activity between these individuals is illegal per se.
And the Court of Appeal makes reference to this particular comment in a report -
THE COURT: In which report now?
MR. MIAZGA: It's just a decision of the Court of Appeal that was in November of 1987.
THE COURT: Is that R. versus G - the G.B.. A.B., is this the Sheho?
MR. MIAZGA: No, that's not one of the cases that's been filed. That was the Harrinqton (ph.) case, R. (Volume 1 - Page 21) versus Harrinaton. And one of the arguments was that the - there was a lack of particularity as to the nature of the sexual assault, that the indictment simply charged the accused with sexual assault, without saying what kind of sexual assault it was. The court found that this was not a problem and essentially said, because of the age of the children, any type of sexual activity between the accused and the complainant was illegal, and the accused could not be prejudiced by the fact that there wasn't specific allegations, whether it was intercourse or sodomy or touching or whatever.
THE COURT: This is Harrinqton case?
MR. MIAZGA: Yes.
THE COURT: Are you going to -
MR. MIAZGA: What I've got is - I could give you a copy of the - I don't have the report, I just have a summary of it. There wasn't a reported case in a case book, that I found, but I can certainly give you what I do have.
THE COURT: Was there a time specified?
MR. MIAZGA: The issue there was not so much - it was on or about the 28th of February. It wasn't a time case, it was just a case dealing with the issue of description. As I understand Defence argument, they're arguing a couple of things, one is time and -
(Volume 1 - Page 22)
THE COURT: But primarily time?
MR. MIAZGA: Yeah. And secondly is description. In relation to the time, I think Mr. Mullord has put forward the cases that I had. The only additional one I have is R. versus Race. R-a-c-e. which is found at 5 W.C.B. (2d), 217. And in that case the complainant was nine years of age at the time of the alleged offences and the Information covered a seven month period that had - that was five years in the past, from the date of the trials. And they found that Information was sufficient. And in particular they referred to the fact that the complainant, the court had to look at the age of the complainant to determine whether or not any more particularity than a seven month time frame was required. And in that case, as I said, found that that was a sufficient Information.
Now again, I agree that this time period here is longer than seven months but, again, the same
arguments apply. Does it mean - does the fact that there are cases having a period of several years suggest that it's inadequate? If the situation is one where the child was in a home for a lengthy period of time and abuse is alleged to have taken place during that period of time, it's only discovered much later, by which time it has, in fact, gone on for years. It would seem to me that, if the allegation is that abuse (Volume 1 - Page 23) took place over a period of several years, that should be just as adequate as if the allegation is that the abuse took place over a period of seven months. We're not talking about an isolated incident here, we're talking about an ongoing, continuing series of events that literally, depending on, of course, what evidence is eventually accepted by the Court, was on a daily or weekly basis in the home of these children. It
would - they cannot say it only happened in May of 1985 or between June and July of 1986, the incidents were going on over a long period of time, essentially throughout the time that they have any recollection at all of what was taking place in their parental home.
Surely the cases do not stand for a proposition that, well, this case only allows six months, this case allows seven months, therefore that's as long as it can be. Well, if that's all the time period that there was abuse for, fine, or the only possible range of time when there was abuse for, fine. But certainly I would argue that, if the evidence shows that the Court could find as a fact that this abuse took place over a period of a year, two years, maybe three years, the Crown is entitled to make that allegation and that evidence can be brought before the Court for the Court then to ultimately decide whether it's to be accepted or not. And to say (Volume 1 - Page 24) that you can only allege abuse over a six month period and can't deal with any other period, again would effectively prohibit prosecution of extreme cases, where things literally had gone on for years and nothing was done about it and nothing was intervened until a later period of time. And I submit that is the type of case we're dealing with here.
The children, quite frankly, are incapable of specifying times as to when things happened. They can specify, the Information has specified that - who the perpetrators of the assaults were. The Informations have specified that these assaults took place in the City of Saskatoon, and there may well be some amendments in that regard by the Crown during the course of the preliminary inquiry but, for the most part, that is where the incidents took place, as alleged. The - as you pointed out, some of the more specific charges in dealing with incest have specified that some of the acts amounted to incest on the part of the natural parents of the three children.
The Crown, and I guess I would disagree with one point made by Mr. Mullord, is that the Crown
has made an effort to provide information to the Defence, and I would like to go on record to say that in this particular preliminary inquiry the Defence (Volume 1 - Page 25) have not chosen to take advantage of the offers that have been made to them. And again, I'm not in any way attributing fault. And I think it's appropriate to know Mr. Mullord just recently inherited this case, as he's only recently begun employment at the legal aid office and Mr. Seto had been the initial Counsel on the case and, as you may know, left in November of this year to assume a position in Edmonton. Mr. Mullord, I understand started there just basically literally days ago and my first formal contact with him was on Monday this week, at which time he asked for disclosure.
The Crown has video taped statements of the three children in question and has, throughout this matter, from day one, indicated to the Defence that they are available for viewing in our office. And whether or not Defence choose to come to our office and look at them is their choice. But, in my respectful submission, the Crown cannot be said not to have tried to provide information to Defence as to what the allegations of these children are. I mean, there has been some verbal disclosure in addition to that, with Mr. Kergoat, who I've spoken to this case about; to some extent with Mr. Mullord but, again, my contact with Mr. Mullord has been fairly minimal because of his quite recent involvement in the case.
(Volume 1 - Page 26)
And I'm simply pointing that out as a fact, because of circumstances, not to attribute fault to anyone. But there are tapes that can be viewed.
And, as of just a couple of days ago, received authorization from our department in Regina to provide copies of these video tapes to Defence. Previously our department had taken the position that those tapes had to be viewed in our office but, in light of a recent Supreme Court decision is Stitchcolme (ph.), I believe, we have decided that it would be appropriate to release copies to Defence so they can view them.
THE COURT: And has that been done?
MR. MIAZGA: It's being - the copies are being made basically right now. I just received permission to do this literally on Tuesday, two days ago. So they're being made now. But in any event, I've certainly reiterated to Defence on numerous occasions that they can come to our office at any time, and I've told Mr. Mullord I'm prepared to lend him these tapes now so he can view them even on the weekend, if he's unable to come to the office, especially in light of the fact that he's, you know, only had recent contact with the case.
So I just wanted to put all those facts on the record to show that the Crown has not, in my
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