Final Judment in Klassen/Kvello false accusations | Government apeals and applies to intervene

 
May 10, 1995   THE COURT OF APPEAL FOR SASKATCHEWAN
The dissenting opinion of Mr. Justice Vancise (which begins three quarters of the way down page 4) gave Donald and Helen Ross (the deaf birth parents of Michael, Michelle and Kathy) automatic right to appeal to the Supreme Court. Their appeals were successful.  Donald and Helen Ross were allowed new trials (which Saskatchewan did not pursue) and Donald White was acquitted. Helen has still not been given back her her family albums.
 
 
DONALD R., HELEN R., AND DONALD W.,
APPELLANTS
and -
 HER MAJESTY THE QUEEN
RESPONDENT  
 
CORAM:
The Honourable Mr. Justice Cameron
The Honourable Mr. Justice Vancise
The Honourable Madame Justice Gerwing  
COUNSEL:
Mr. J.D. Hillson for Helen R.
Mr. R. J. Kergoat for Donald R.
Mr. D.L. MacKinnon for Donald W.
Mr. K. W. MacKay Q.C. for the Crown    
DISPOSITION:
Appeal Heard: December 14, 1993
Appeal Dismissed: May 10, 1995
On Appeal From: Q.B. No. 174 of 1991
Appeal File: 5984, 5972, 5976
Reasons by: The Honourable Mr. Justice Cameron
In concurrence: The Honourable Madame Justice Gerwing

In dissent: The Honourable Mr. Justice Vancise   I also make an order prohibiting publication of any information that could disclose the identity of the complainant: see s.486(3) of the Criminal Code.     CAMERON J.A.  

The appellants Donald R., his former wife Helen R.,  and her common law husband Donald W., were tried together  in the Court of Queen's Bench on an indictment containing  numerous counts alleging that, between January 1, 1983 and  December 31, 1989, they committed a number of offences  entailing the sexual and physical abuse of three children  of Mr. and Mrs. R., a boy and two girls then ranging in age  from one to ten.  

The trial judge, Madam Justice Batten, found each of  the appellants guilty of sexually assaulting each of the  children, contrary to s. 271.[246.1](1)(a) of the Criminal  Code. She also found Donald R. guilty of assaulting the  two girls, causing them bodily harm, contrary to s. 267.  [245.1](1)(b). In addition, she found Helen R. guilty of  assaulting the boy, causing him bodily harm, and of  assaulting him with a knife, contrary to s.  276.[245.1](1)(a). She dismissed the remaining counts,  alleging gross indecency, for example, and sexual  intercourse with the children, and then sentenced Donald  and Helen R. to six years in prison and Donald W. to three.

At that, each of the appellants appealed, seeking to  have their convictions set aside and, alternatively, to  have their sentences reduced. They sought to have the  convictions set aside on the basis, first, that Justice  Batten had erred in law in numerous respects concerning the  conduct of the trial and the findings of guilt; second,  that the guilty verdicts were unreasonable or unsupported  by the evidence; and third, that fresh evidence had come to  light showing that, following the trial, someone else was  convicted of sexually assaulting the children during the  period in issue.

THE BACKGROUND OF THE MATTER

Donald and Helen R. married in 1979. He was 48, she  was 21, and both were deaf and mute. Three children were  born to them: Michael, on October 18, 1979; and Michelle  and Kathleen, on March 4, 1982. The marriage was fraught  with conflict, neither parent was up to the task of  adequately caring for the children, and conditions in the  home steadily worsened.     In time Mrs. R. took up with Donald W., spending more  and more time away from home, and the care of children fell  increasingly to Mr. R.. By May of 1986 the situation in the  home was such that a court order was made attaching  conditions to the continued custody of the children by Mr.  and Mrs. R.. Michael was so oddly and badly behaved, even  in kindergarten, that in the fall of 1986 he had to be  placed in a special program at school. There he came under  the supervision of a Mrs. Garnet Francis, who soon noticed  that the boy, though just seven years old, was given to  some unusual sexual behaviour.

The situation in the R. home did not improve, and so  on February 13, 1987, by which time Mrs. R. had moved out  and was living with Mr. W., the children were placed in the  foster home of Anita and Dale Klassen, who had two and  later three of their own children. Michael was then seven  and a half years old, and Michelle and Kathy were about  five. Within a short time of their arrival, Mrs. Klassen  observed them engaging in behaviours of a sexual nature.

Over the following eight months, from mid-February to  mid-October of 1987, the children visited from time to time  with their parents and Mr. W. Mr. R. visited with them  regularly, taking them overnight on occasion. Mrs. R. and  Mr. W. also visited them now and then, mostly at supervised  meetings. These meetings tailed off, Mr. and Mrs. R.  divorced, and in October the unsupervised visits by Mr. R.  were stopped.

In the meantime, Mrs. Klassen first took Kathy and  then Michelle for medical examinations, thinking they had  been sexually abused.

In April, some two months after the children had  arrived, Mrs. Klassen saw that Kathy's vagina was slightly  bloody. The follow-up medical examination showed extensive  infection. The incident was investigated by a worker from  the Sexual Assault Centre as well as by the police, who  noted that the R. children had sexual knowledge unusual for  their ages, but nothing much came of the incident, for it  seemed clear that Michael had been the aggressor.

Five months later, in September of 1987, the three  children visited their father Donald R. overnight. Shortly  after their return to the Klassen residence, Mrs. Klassen  noticed redness about Michelle's vagina and blood spots on  the girl's panties. The child told her something of what  had happened to her, and in the result Mrs. Klassen took  her to Dr. Eleanor McKenna. Dr. McKenna, who was told much  the same thing by Michelle as Mrs. Klassen had been told,  concluded on her examination of the child that she had been  subjected to non-accidental trauma of the genital area.  Again nothing much came of this incident, although the  unsupervised visits by Donald R. were then stopped.

By this time Michelle had started kindergarten, and  Mrs. Francis noticed that she, too, was given to some  unusual sexual behaviour. Kathy arrived at the school later  and was seen to be similarly behaved.

In November of 1989, by which time the children had  been in the Klassen foster home for nearly three years,  Helen R. consented to the children becoming permanent  wards. The Klassens were willing to care for the two  girls, but were concerned about keeping Michael. In the  result, the boy was removed from the Klassen home and was  placed with Marilyn and Lyle Thompson in Warman, whose home  was designated as a therapeutic or special foster home.

After being placed with the Thompsons in late 1989,  Michael was permitted to attend the Warman Elementary  School on a half-time basis, but only on condition he be  continuously accompanied by Mrs. Thompson, for by then he  was a deeply troubled child, exhibiting highly unusual  sexual behaviour.

Not long after his arrival at the Thompsons, he  alleged that the children had been abused in the Klassen  foster home. That prompted the Department of Social  Services to look into the situation, and in consequence the  R. girls were removed and placed, as well, in the care of  the Thompsons. That was on May 29, 1990. The girls then  entered Warman Elementary School, as well, where Michelle  was soon engaging in sexualized behaviour with other  children, requiring monitoring by a teacher's aide. And  Kathy, too, had to be regularly supervised by an aide  because of her history of sexualized behaviour.

The Thompsons also noted an array of socially  inappropriate behaviours in the children on their arrival  there, many of which had some sexual content. This was  especially true of Michael, and each of the children began  seeing Ms. Carol Bunko-Ruys, a child therapist in private  practice.

And in light of Michael's allegations, prompting the  transfer of the girls from the Klassens to the Thompsons on  May 29, 1990, the children were examined by Dr. John  Yelland on June 5 for tell-tale signs of sexual abuse. He  detected some such signs, and in the weeks that followed,  the children, who had begun opening up with Mrs. Thompson,  reported a wide range of activity purportedly involving  Donald and Helen R., Donald W., the Klassen foster parents,  and many of the Klassen relatives. As their reports  escalated, Sergeant Dueck, a Saskatoon police officer  assigned to investigate the matter, interviewed the  children at length, beginning in late October of that year  and continuing into November.

His investigation continued over the next several  months, and on May 31, 1991, the R. children were again  examined by Dr. Yelland. This time he examined them for  signs of both physical and sexual abuse, given what they  had been telling Mrs. Thompson and had told Ms. Bunko-Ruys  and Sergeant Dueck. Dr. Yelland concluded that the  children had been subjected to forms of sexual and physical  abuse consistent, in significant part, with the nature of  that they had been reporting.

Based upon all of this, together with other bits and  pieces of information, the appellants were charged with a  series of offences alleging that they had sexually and  physically abused each of the children in the seven year  period between January 1, 1983 to December 31, 1989.

Mr. and Mrs. Klassen were also charged, as were  several members of the Klassen family, including Mr.  Klassen's father, Peter Klassen, who lived with his  daughter Pam Klassen, who also had a foster home. None of  these charges had been disposed of at the time of the trial  of the appellants, which began on October 26, 1992. The  later disposition of the charges against Peter Klassen  formed the subject-matter of the application for the  admission of fresh evidence.

The fresh evidence consisted of a certificate of  conviction, certifying that on February 8, 1993 Peter  Klassen had been convicted of sexually assaulting each of  the R. children between February 1, 1987 and December 31,  1990. Apparently he pleaded guilty to the charges,  following which the charges against the other members of  the Klassen family were either withdrawn or stayed.

Whether this evidence should be admitted is best left  aside for the moment, given the procedures for handling  such applications and the conditions governing the  admission of fresh evidence, as laid down in R. v. Stolar,  [1988] 1 S.C.R. 480 and Palmer v. The Queen [1980] 1 S.C.R.  759.

The appellants were tried before Madame Justice Batten  sitting without a jury. Counsel for the Crown called  seventeen witnesses, including the R. children; the foster  parents, Mrs. Klassen and Mr. and Mrs. Thompson; the  teacher, Mrs. Garnet Francis; the two doctors, Drs. McKenna  and Yelland; the therapist, Ms. Bunko-Ruys; and a  psychiatrist, Dr. Joanne Santa Barbara.   Counsel for Donald R. called two witnesses, namely the  accused, Mr. R., and Dr. Michael Elterman, a clinical  psychologist. No other defence evidence was called.

In the course of the trial several evidentiary  disputes arose. The resulting rulings spawned numerous  grounds of appeal stating that Justice Batten had erred in  law, within the contemplation of ss. 675 (1)(a)(i) and  686(1)(a)(ii) of the Code. She was said to have erred (i)  in receiving the evidence of the children; (ii) in limiting  the cross-examination of Mrs. Thompson; (iii) in qualifying  Dr. Yelland, Ms. Bunko-Ruys, and Dr. Santa Barbara to give  opinion evidence; (iv) in disallowing cross-examination of  Ms. Bunko-Ruys with the aid of a "transcript" of the  interviews of the children conducted by Sergeant Dueck; (v)  in allowing into evidence the two out-of-court statements  made by Michelle, the one to Mrs. Klassen and the other to  Dr. McKenna; and (vi) in foreclosing the expression by Dr.  Elterman of opinions going to the reliability of the  children's allegations.

Justice Batten's reasons for judgment also gave rise  to a number of grounds of appeal, grounds alleging error by  way of mis-direction or non-direction in the assessment of  the evidence of the children, stating that she had failed  to appreciate the need for confirmation of their evidence,  and had failed to recall and keep in mind the dangers and  need for caution in convicting on such evidence.

As noted earlier, her guilty verdicts were also  attacked on the ground they were unreasonable or  unsupported by the evidence, within the contemplation of s.  686(1)(a)(i) of the Code, a ground of appeal requiring this  court to re-examine and to some extent re-weigh the  evidence with a view to determining whether a properly  instructed judge or jury, acting judicially, could  reasonable have rendered the verdicts: R. v Yebes, [1987] 2  S.C.R. 18; R. v W.(R.), [1992] 2 S.C.R. 122; R. v  Francois, [1994] 2 S.C.R. 827.

In the light of all of this, coupled with the  application to introduce fresh evidence, it is necessary to  review at some length the evidence adduced or sought to  have been adduced at trial, the disputes to which that gave  rise, the rulings that were made, the reasons for judgment,  and so on.

 THE TRIAL

By the time of trial Michael was 13, and Michelle and  Kathy were ten and in grade five. Before receiving their  evidence Madame Justice Batten briefly questioned each of  them with an eye to s. 1 of the Canada Evidence Act,  inviting suggestions from counsel as to further inquiry,  but none were forthcoming. Nor was any objection made in  this connection. Satisfied each of the children was able to  do so, she permitted them to testify, and to do so under  oath, beginning with Michelle, then Kathy.

This gave rise to the first of the grounds of appeal  going to the conduct of the trial, as stated by Donald W.:

That the Learned Trial Judge erred in law by failing to  conduct an adequate inquiry under s. 1(1) of the Canada  Evidence Act so as to determine whether the child  complainants understood the nature of an oath and whether  they were able to communicate the evidence.

Counsel for Mr. W. submitted on appeal that Justice  Batten had mis-handled the matter, contending that the  children had not been adequately questioned and that their  evidence should not have been received.

I do not agree with the contention the evidence of the  children should not have been received. In the  circumstances, and having regard generally for what was  said of the subject in R. v. Marquard, [1993] 4 S.C.R. 223,  I am satisfied the evidence of each of the children was  properly received, and appropriately received under oath.  Accordingly I would dismiss this ground of appeal.

The gist of the evidence of each of the children,  especially as it affected Donald R., Helen R., and Donald  W. was this.

 Michelle

Michelle testified to a good deal of sexual activity  in the R. household, including "screwing parties" in which  the children and their parents, along with Donald W., would  undress in the living room and "touch each other." On one  occasion, she said, the room was decorated with hanging bat  and ghost forms, and the children, who were naked, were  made to don bat masks and wings, and then "touch" one  another, while the adults watched from an adjoining room.  On another occasion, she said, the children were tied naked  to a dresser with a rope, while her parents--her "birth  parents" as they were referred to--who were also naked,  engaged them in sexual activity.

Her birth mom and dad had "screwed" her, she said,  meaning they had put "their finger in my bum and vagina,"  and that this happened "more times than I can count,"  adding that her mom moved her finger around when she  touched her. She said she had to touch her mom's bum and  vagina and "suck her boobs," remembering that her mom wore  a gorilla mask on an occasion when she scared and touched  the kids. Michelle also testified that her dad would put  his penis in her vagina and bum, and that she had to suck  his penis.

The child stated that she had seen her mom and dad do  the same things to Kathy, adding that she had not witnessed  any other sexual acts involving other family members.

Michelle also testified that her birth parents had a  video camera and would take videos of the kids touching.  They also had a regular camera, and took pictures of the  kids taking off their clothes or when naked.

As for Donald W.--whom the girls apparently knew as  "Uncle Donald"--Michelle said that he sometimes lived at  their house, later remembering that he had visited the  house "more than once." She testified that he would "put  his penis inside me" and "make us suck his penis." He put  both his penis and his finger in her bum and her vagina,  she said, and he had called her a "fucking bitch."

Michelle also stated that Donald W. would be there  when the kids were tied up and abused by their birth  parents. He would put his finger inside her when she was  tied up, and would say "good girl" and give her candy when  "bad touching" occurred. Although her description  suggested the kids were tied up together, she stated she  had never seen Donald W. touch Kathy and Michael.  Subsequently, she testified that when Donald W. came to the  house, there would be "screwing parties" in the living  room, involving all three adults and the three children.

She also testified that her mom and dad had burned all  three children with candles and matches. They would put  these to the kids' bodies, and it would burn and make a big  scar. Her elbows, knees, and forehead, she said, were  burned in this way. She had not seen her mom and dad burn  her brother and sister, and had not seen any scars on  either of them, but she said her mom and dad had cut all  three kids with knives. They cut her behind her ear, as  well as in her bum and in her vagina, but she did not see  anything happen to Michael or Kathy, she added.

While recalling that her mom had cut her behind her  ear, Michelle could not remember what her dad or Donald W.  had done. It was her mom who put the knife in her bum and  her vagina, she said, adding that no one other than her mom  and dad put a knife in her vagina and her bum. But Donald  W. also cut her, she stated.

She acknowledged touching other children and  "screwing" Michael in the washroom at Caroline Robins  School. And Michael, she recalled, would come into the  girls' room at night, when they were at the Klassens, and  screw both Kathy and her. She also recalled an occasion,  after the children had been placed with the Klassens, when  Michael "put a butter knife inside Kathy's private parts."

She said the Klassen household, too, was filled with  bad touching, but not as bad as that which had occurred in  the R. home, because there the people did other things to  the children.

 Kathy

Kathy also testified that each of the appellants had  sexually assaulted her, and that Donald R. had harmed her  with a knife.

She said her birth dad "put his penis in my mouth, and  he peed in my mouth, and I spit it out in the sink," and  that "[h]e put his penis in my vagina and bum." As for her  birth mom, she "put her finger up my vagina and bum." She  recalled that her mom and dad had touched her private parts  "lots" of times. She also said she had never seen grown up  persons having sex or using costumes. She remembered an  "ape mask" that was used to scare the kids, but nothing  else.

Kathy stated that she had been to Donald W.'s house,  saying it was in the country, on a farm, with no houses  around. She said Donald W. would "screw" the kids in turn,  while the other kids played with the farm animals. And  when she was at his house he "put his penis in my vagina  and bum." This occurred in his bedroom, she said, with no  one else there, and he threatened to shoot her if she told  anyone. She went on to say that she had never seen Donald  W. do anything to any other child or adult at his house.

She could not remember Donald W. coming to Saskatoon,  but later remembered that he had come to Saskatoon "about  twice a week" and that he put his penis in her vagina and  bum when he was there. She could not recall his having any  kind of camera.

Kathy also recalled being cut by her birth dad. She  testified that he tied her to a table and cut her back and  her vagina, remembering that the cuts had bled and that the  neighbours had taken her to the hospital where, she  insisted, she had had stitches. She said that neither her  birth mom, nor Donald W., had hurt her or used a knife and  that she could not recall any of the accused burning any of  the children.

As had Michelle, Kathy also testified about sexual  activity involving only the children: Michael had "screwed"  her and put his penis in her vagina and bum; Michelle had  put a finger in her vagina and bum; and she, Kathy, had  done the same to Michelle. But she had not screwed or  touched Michael, she said, adding that she had never had  problems touching other kids at school. Later, however, she  remembered "screwing" the boys at Caroline Robins: "The boy  would put his penis in my vagina."

Michael

Michael also testified to having been sexually  assaulted by each of the appellants, who used to get  together, get drunk, and fight he said. He testified, as  well, to having been otherwise assaulted by his mother  Helen R..

He recounted being in his father's bedroom many times,  while the two of them were naked, and said that his birth  dad "put his penis in my bum, and I put my penis in his  bum. And then he made me suck his penis," saying this had  happened "lots and lots of times" when they were by  themselves and sometimes when they were with his birth mom,  or his birth mom and Don W..

He said his birth mom had a separate bedroom  downstairs and that, with "just me and my mom" there, "I  put my penis in her vagina, and later she made me suck her  boobs. And then I put my penis in her bum. And then she put  her finger up my bum," adding this had happened "a lot of  times. A lot, lot, lot."

He also stated that his birth parents, while naked,  would tie him or his sisters to something, while they too  were naked, and would then make them do the kinds of things  he earlier described. And one time, he said, his mother  "sexually abused us" while wearing a gorilla mask. He also  stated that he had not seen his parents touch either of his  sisters or have sex with each other.

He recalled Donald W. coming to their house with his  video-camera, saying Don W. videotaped "us when we were  having, being sexually abused" and took pictures of the  children "doing some naked things," using one of those  automatic cameras "where you take the picture and the  picture comes out," adding that when Don W. video-taped  them having sex, "My birth mom would do it to Kathy, my  birth dad would do it to me, and then we would all take  turns." And he said Don W. "sexually abused us too."

Asked to specify, Michael said, "He put his penis in  my bum, and then I put my penis in his bum, and I sucked  his penis," adding that they had done this while alone in a  bedroom and that Donald W. threatened to kill him if he  told anyone about it. He said he had not seen Don W. do  anything to any other kid, but Mr. W. would have videotaped  the kids being sexually abused and taken pictures of them.  When asked who appeared in the videos, Michael said  "Michelle and Kathy and I, and then my birth mom and dad,"  saying he had watched these videos.

He went on to testify about a trip to the home of  Donald W. in the Village of Laird, saying he had been  sexually abused by all of the appellants while there. He  said he had not see anything done there to his sisters, but  noted that when Donald W. sexually abused the kids, he  would promise them a chocolate bar or five dollar bill if  they did a good job.

Michael acknowledged that he, himself, had sexually  abused Michelle and Kathy, as well as the Klassen children  and others, saying he started touching his sisters when he  was five and they were three. While he was no longer doing  this, he still thought about it, and when asked about his  preferences, he said he liked touching both girls and boys.

Michael also testified that he had been physically  harmed in ways not specifically sexual. For example, he  stated "My mom tried to stab me to get some blood,"  pointing to his right chest area, when asked where she had  stabbed him, and saying there was a dent there and that  five drops of blood had come out. He also stated that his  "birth mom, she lit a--got a lighter going and she burnt me  here," pointing to his right hand and adding that only she  had stabbed and burned him.

He admitted to liking knives and playing with fire,  however, saying that he had threatened his sisters with  knives to dissuade them from telling on him and that he had  once set a car, and later a park, on fire.

The children testified to many other happenings in the  R. home, including some which were altogether bizarre: They  would eat "poop," including poop cast in moulds or mixed  with raw fish, and would drink "pee" and "blood"; their  mother would cut up and fry eye-balls; their parents would  screw and kill and cut up cats and dogs and babies, eating  and burying parts out back in the garden; and so on.

Portions of the testimony of the children were  obviously inconsistent, others were contradictory, and  still others were plainly wrong or wholly bizarre. Donald  W., for example, did not live on a farm with no other  houses around, as Kathy said he had, but in the Village of  Laird, with houses nearby, though his was a large lot and  had an old chicken coop out back. And, while Kathy was  adamant about having gone to the hospital for stitches, she  had never had sutures. Nor were there any babies buried  out back in the garden, and so on.

On the other hand, portions of their evidence found  confirmation in other testimony. Three Polaroid cameras  were found during a search of the bedroom of Donald W.'s  residence, for example, and several reels of old home-  movies were found in the home of Donald R., though none was  in the least incriminating. But Donald R. admitted to some  unusual behaviour in the home, and the children were found  to bear the marks, both physical and psychological, of  sexual assaults upon them, as a review of the remainder of  the evidence will show.

What to make of each of the children and their  evidence was obviously one of the central issues at trial,  with Justice Batten having to determine whether and to what  extent any of them and their testimony was credible.

Mrs. Garnet Francis.

Mrs. Francis testified to her experiences at school  with each of the children during the period beginning in  the fall of 1986, when Michael entered her classroom, and  ending in the spring of 1990, when Michelle and Kathy were  placed with the Thompsons. Mrs. Francis had had several  years of experience teaching youngsters with severe  behavioral problems and was then working toward her masters  degree in that field.

She had had contact at school with one or another of  the children during three periods of relevance to the case:  First, from early September of 1986 to mid February of 1987  (before the children were placed with the Klassens);  second, from mid February to early October of 1987 (while  the children were with the Klassens and being visited by  Mr. R., and by Mrs. R. and Mr. W.); and third, from October  of 1987 to June of 1990 (while the children were in the  care of the Klassens and up to the time the girls were  placed with the Thompsons).

Mrs. Francis testified in examination-in-chief that  when Michael entered her program for troubled children he  was immature and given to odd behaviours. He liked to put  on a housecoat, dresses, and high heeled shoes from "the  dress-up box" in the classroom. She said she had several  children who demonstrated sexually inappropriate behaviour,  adding that Michael's behaviour was not particularly  unusual in the context. But he was sexually aggressive,  and she specifically noted that he would make comments to  other children like "do you want to have sex with me" or  "do you want to touch my penis" or "can I touch your  penis."

She went on to say that for the first while after  being placed with the Klassens, Michael's appearance and  behaviour improved. But then it deteriorated in the  following school term--the 1987-88 term--after Michelle  began attending the same school. He and Michelle were found  together from time to time in the girl's bathroom, in the  same stall, engaged in sexualized behaviours. And Michael  would wear pantyhose to school under his jeans, saying it  made him feel sexy. He appeared restless and preoccupied,  became increasingly aggressive, and started running away  more often, she said. And, though only eight or nine at  the time, he became "very verbal in sexual comment,"  continually suggesting to one of the female volunteer  teachers, for example, that they have sex, and go to bed,  and the like.

Mrs. Francis said that Michael's conduct deteriorated  in all respects during the next school term (1988-89).  Running away was a particular problem. By the time he left  the school in June of 1989, his behaviour was so abnormal  the school system was unable to cope with him.

She recalled having discussed some of the boy's  problems with Donald R., and then later with Anita Klassen,  raising Michael's sexual behaviour with Mrs. Klassen. Mrs.  Klassen was reluctant to discuss that topic, however, and  refused to attend counselling with the boy--stating this  was difficult for her since she had been sexually abused as  a child.

Michelle arrived at the school in early September of  1987, about six months after the children had been placed  with the Klassens and while they were still being visited  by their natural parents and Mr. W.. Although Michelle  attended classes taught by someone else in another room,  Mrs. Francis had frequent contact with her. She testified  to Michelle and Michael being caught together from time to  time in the bathroom, apparently engaging in sexually  related behaviours--"touching" one another they had told  her when she caught them.

Mrs. Francis had Kathy in her classroom from the fall  of 1989 through to the end of June, 1990. She said Kathy,  too, was sexually aggressive. The child frequently touched  the genital areas of other children, and invited others to  touch her, and was once involved in an incident in the  bushes on the playground. Mrs. Francis was not sure about  what had gone on, but noted the kids referred to "having  had sex in the bushes."

In cross-examination, Mrs. Francis said her  recollection was that Michael was "acting out sexually" and  demonstrating "inappropriate sexual behaviour" from the  very beginning--from September of 1986 when he entered her  classroom--and that his behaviour worsened as time went on.  Pressed about when she first became concerned about his  sexual behaviours, she said in effect that she had been  concerned from the outset, voicing early concerns with a  co-worker, Dawn Shack, about the possibility of Michael  being sexually abused. She felt certain, she said, that  she had observed the boy's sexual acting out before  February of 1987, when the children were placed with the  Klassens, but she was unable to be more specific about  dates or times. Pressed further, she went on to say some  sexual touching had occurred before February of 1987, but  she resiled from saying she was "absolutely certain" of  that, suggesting she was absolutely certain of very little.  She also said the main behaviour she noted initially was  Michael's dressing up, but she remembered hearing of other  incidents involving Michael before Michelle arrived at the  school.

Mrs. Klassen

Mrs. Klassen testified that when the R. children  arrived in her home in February of 1987 they were  hyperactive, low in self-esteem, and soon seen to be  engaged in a variety of unacceptable behaviours, including  inappropriate hugging and kissing on the lips. She recalled  Michael's interest in cross-dressing, his and Kathy's bed-  wetting, and the children having been caught naked in the  play area downstairs without any satisfactory explanation.  She was of the view their sexual behaviours ("the kissing,  the time they had the clothes off, dressing up in women's  clothing") had not really changed over the time they were  in the Klassen home, except that Michael did not dress up  as much as time passed.

She stated that Michael appeared disturbed after  visits with his father, something she had noted as early as  March of 1987, and that the children were hyper after  visits with their birth parents. When pressed about whether  she could remember any other behaviours the children  displayed when they came, she again noted Michael's  dressing up, saying he had once got up at night and put on  some of her clothing in the laundry room. She also  remembered Michael being caught at some point trying to  sneak into the girls' room at night. A beeper had to  installed on his door to discourage his leaving his room  after bedtime.

Mrs. Klassen also testified about the two occasions,  in April and September of 1987, on which she had had first  Kathy, and then later Michelle, examined by doctors. She  recalled having been told by Pam Klassen, on the initial  occasion, that Michael had inserted a butter knife in  Kathy's vagina during an overnight stay at the home of Pam  Klassen.

As for the second, Mrs. Klassen said this: On  September 20th, Mr. R. returned the children to her home,  following an over night visit. He remained with her in the  kitchen for a bit, but the children avoided him, not even  saying good-bye as he left. About two hours later, while  the girls were having a bath and she was washing their  hair, she noticed that Michelle's vaginal area was  irritated and red, and that her panties appeared to have  blood on them. On being asked what had happened, Michelle  replied "My daddy touched me." At that, Mrs. Klassen  called the Mobile Crisis Centre, took the child to the  hospital, and followed up the next day by taking her to Dr.  McKenna.

What the child had told her foster mother was  received on the footing its admissibility would be  determined later, at the close of the case for the Crown.  There were other out-of-court statements at issue,  including Michelle's statement made to Dr. McKenna the  following day, and in the interests of avoiding a voir dire  or a series of voir dires, the admissibility of all of  these statements was left to be decided in this way.

In general, Mrs. Klassen's recollections were not very  detailed, and her descriptions of the R. children's  behaviour included few specifics--even at later times in  the children's stay. She was clearly of the view, however,  that all three children demonstrated inappropriately  sexualized behaviour when they came to her home.

   

>>>2

Home

Search for
© 2001 www.injusticebusters.com
E-mail injusticebusters

eXTReMe Tracker

Creative Commons License
This work is licensed under a Creative Commons License.

April 30, 2005

-30-