 Final Outcome in Klassen/Kvello false accusations | Government apeals and applies to intervene
THE REASONABLENESS OF THE VERDICTS As noted earlier, each of the appellants attacked the verdicts affecting them on the basis those verdicts were unreasonable or unsupported by the evidence, within the contemplation of s. 686(1)(a)(i) of the Code. That section provides in material part as follows: 686.[613] (1) On the hearing of an appeal against a conviction...the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.... These provisions were considered and clarified by the Supreme Court of Canada in R. v. Yebes (cited earlier), wherein it was said at p. 186: The function of the Court of Appeal, under s. 613(1)(a)(i) of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the court must re-examine and to some extent reweigh and consider the effect of the evidence. This process will be the same whether the case is based on circumstantial or direct evidence. The Yebes test was elaborated upon in a number of later cases, including R. v. W.(R) and R. v. Francois (cited at the outset of the review of the evidence) and R. v. Burns (referred to a moment ago). In R. v. Burns Madame Justice McLachlin, speaking for the Court, pointed out that the review conducted on appeal is only for the purpose of determining if the verdict at issue could reasonably have been rendered on the basis of the evidence adduced. She stated at 663: Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial [emphasis added]. In R. v. W.(R.), Madame Justice McLachlin, again speaking for the Court, held the Yebes test applicable to verdicts based on findings of credibility, adding that in this context the test falls to employed with additional restraint, given the nature of such findings. Since this is of particular significance to the case at hand, the decision in R. v. W.(R.) merits extended comment. There the accused had been convicted of indecent assault, gross indecency, and sexual assault against three young girls, for whom he had some parental responsibilities. McLachlin J. described the history of the charges at p. 125: The first three charges (two of indecent assault and one of gross indecency) concerned B.W. She was between two and four years old when the incidents occurred in 1981-82, seven years old when the offences were reported to the authorities, and nine years old at the time of trial. The fourth charge (of sexual assault) concerned M.W. She was between nine and ten at the time of the events in question, eleven when the offences were reported, and twelve at the time of trial. The fifth charge (of indecent assault) concerned S.W. She was ten years old at the time of the events in question, fourteen at the time of reporting, and sixteen at the time of trial. The convictions, based on the testimony of the three girls, related to incidents where the respondent was caring for them. The testimony of the oldest child was consistent. That of the younger two, however, including the child who alleged the most serious misconduct, was inconsistent and contradicted to some extent. The Court of Appeal decided the guilty verdicts could not stand, and at that, the Crown appealed to the Supreme Court, calling upon it to decide whether the Court of Appeal had correctly applied s. 686(1)(a)(i) and whether the children's testimony had been treated appropriately. Of particular concern, was the extent to which the children's testimony could be relied on without other evidence to confirm it, and the effect of the inconsistencies in what the younger children had had to say. In dealing with the first issue, McLachlin J. described how a court of appeal should proceed: It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility [cites omitted]. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable. [emphasis added] She went on, before dealing with the question of whether the verdict was actually unreasonable in the circumstances, to comment on the correct approach to the assessment of children's testimony. She noted that the requirements for corroboration had been removed from the Criminal Code, and that old stereotypes could not be relied upon. With regard to inconsistencies, she referred to the approach recommended in R. v. B.(G.) (cited earlier), where Wilson J. had adopted the approach of Wakeling J.A. of this Court and suggested that flexibility is needed when dealing with the testimony of young complainants. Inconsistencies in the testimony of children may be assessed somewhat more generously than those in the evidence of adult witnesses. The Supreme Court went on to allow the appeal and restore the verdicts. In doing so, it might be noted, the Court allowed considerable latitude in determining that the trial judge could reasonably have rendered the impugned verdicts. The application of s. 686(1)(a)(i) was most recently considered in R. v. Francois. There the verdict turned on the credibility of the complainant. The complainant alleged that she had been sexually assaulted on more than one occasion by a neighbour, some ten years earlier when she was thirteen years old. The complainant's testimony was the only evidence at the trial. The accused did not testify, and relied on past inconsistent statements of the complainant along with the fact the circumstances surrounding her recall of the incidents may have suggested a motive to fabricate. The jury's guilty verdict was challenged on the basis the frailties in the complainant's evidence were such as to preclude a reasonable verdict of guilt. The credibility of the complainant was directly in issue in much the same manner that credibility is in issue before this Court. Madame Justice McLachlin (LaForest, Gonthier and Iacobucci JJ. concurring) took the occasion to clarify the proper approach to assessment of credibility by an appellate court considering whether a verdict at trial was unreasonable. She noted that assessment of credibility is a more difficult task when it involves a challenge to the complainant's veracity per se, suggesting particular caution when considering, on appeal, whether or not the complainant may have been truthful. She stated at p. 836- 837: ...In the end, the jury must decide whether, despite such factors, it believes the witness's story, in whole or in part. That determination turns not only upon such factors as the assessment of the significance of any alleged inconsistencies or motives for concoction, which may be susceptible of reasoned review by a court of appeal, but on the demeanour of the witness and the common sense of the jury, which cannot be assessed by the court of appeal. The latter domain is the `advantage' possessed by the trier of fact, be it judge or jury, which the court of appeal does not possess and which the court of appeal must bear in mind in deciding whether the verdict is unreasonable: R. v. W.(R.), supra. In considering the reasonableness of the jury's verdict, the court of appeal must also keep in mind the fact that the jury may reasonably and lawfully deal with inconsistencies and motive to concoct, in a variety of ways. The jury may reject the witness's evidence in its entirety. Or the jury may accept the witness's explanations for the apparent inconsistencies and the witness's denial that her testimony was provoked by improper pressures or from improper motives. Finally, the jury may accept some of the witness's evidence while rejecting other parts of it; juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of the evidence of each witness. It follows that we cannot infer from the mere presence of contradictory details or motives to concoct that the jury's verdict is unreasonable. A verdict of guilty based on such evidence may very well be both reasonable and lawful. Obviously this provides clear guidance for the task at hand, and with that, I turn to the verdicts at issue, beginning with those against Mr. R.--finding him guilty of sexually assaulting each of the children and of assaulting Michelle and Kathy, causing them bodily harm. Counsel for Mr. R., in challenging the verdicts against his client, did so in bulk, rather than discretely, saying all of them were unreasonable in light of the nature of the evidence of the children. As he put it in his factum: "(a) The nature of the children's allegations raise serious doubts about the children's credibility; (b) the children named many adult abusers, most of whom were in the Klassen foster home and the birth parents home; (c) the children gave contradictory evidence; and (d) the demeanour of the children witnesses suggested un-reliability and untruthfulness." In developing these points, counsel referred to the inconsistencies and contradictions in the testimony of the children, and especially to the bizarre nature of some of their testimony, contending that in light thereof none of the children and none of their evidence could reasonably have been taken as credible. In effect, then, the verdicts against Donald R. were challenged on the basis the findings of credibility in relation to the children and their evidence were unreasonable, a challenge which falls to be addressed chiefly along the lines expounded by Madame Justice McLachlin speaking for the Court or the majority of the Court in R. v. W. (R.) and R. v. Francois. That is to say, "great deference" must be accorded the trial judge's findings of credibility, and close attention must be paid to the standards for assessing the evidence of children (W.(R.)). In addition, care must be taken lest the inherent limitations in reviewing findings of credibility be exceeded. To the extent such findings rest on the demeanour of a witness and the common sense of the trial judge, for example, they are not susceptible of reasoned review, a point made in Francois. Having regard for this, for Justice Batten's assessment of the credibility of the children and their evidence, and for the confirmatory evidence of others, I am unable to say her findings of credibility were unreasonable in the sense no properly instructed judge or jury acting judicially could reasonably have made such findings. I do not know whether, had I been the trial judge, I would have convicted Mr. R. on the entirety of the evidence. Certainly the testimony of these children would have concerned me deeply, but having said that, their testimony was obviously of deep concern to Justice Batten, as well. And remembering, as we must, that we are not merely to substitute our view for that of the trial judge, or having concluded that the verdicts could reasonably have been rendered, to let doubts deflect us, I cannot accept the proposition that we should order a new trial for Mr. R. on the ground the verdicts against him are unreasonable within the contemplation of s.686(1)(a) (i). Next, I turn to the verdicts against the appellant Mrs. R.. For the purposes of the argument made on her behalf they were divided into two groups--those finding her guilty of sexually assaulting each of the children, and those finding her guilty of assaulting Michael with a knife, and of assault causing him bodily harm. The first were said to be unreasonable on essentially the same basis as the verdicts against Donald R. were said to have been so, a proposition I cannot accept for the reasons earlier stated. As for the second, counsel argued that if these verdicts were grounded in the alleged incidents with the knife and the lighter, as it appeared to him they were, they were unreasonable and unsupported by the evidence, because the evidence of the boy in these respects was so improbable and unreliable and inconclusive, viewed on its own and in conjunction with the rest of his evidence, as to have been incapable of supporting guilty verdicts. To a large extent, this brings considerations of credibility and weight into play, but the question remains: Could a properly instructed jury, acting judicially, reasonably have found that Mrs. R. had in fact stabbed the boy in his chest or burned him with a lighter, as he swore she had? I find it difficult to say a jury could not have done so in light of the whole of the evidence. According to the evidence of Dr. Yelland, the boy had an old scar on his chest, consistent with a puncture or stab wound, and a scar on his right hand, consistent with a burn. In my judgment, a jury might reasonably have accepted this evidence as confirming the boy's testimony that he had been stabbed in the chest and burned on the hand. And the evidence of others in the case, especially that of Donald R., might reasonably have been taken as tending to confirm the boy's testimony that his mother had inflicted these injuries upon him. Mr. R. acknowledged that Mrs. R. was given to bouts of heavy drinking, accompanied by fits of anger and abusive behaviour, leaving the children fearful of her. He said that she had once broken a beer bottle and threatened to cut or kill him with it, and more importantly, that she had once lit a lighter and held it near enough to the boy's hand for him to feel the heat of it to teach him a lesson about fire. It seems to me therefore that there was sufficient evidence, if credible, to support these verdicts, and that a jury might reasonably have found the core of the boy's statements that his mother had stabbed him in the chest with a knife and burned his hand with a lighter to have been credible. In sum, then, I have not been persuaded to the view the verdicts against the appellant Helen R. are unreasonable or cannot be supported by the evidence. I note, too, that she did not testify. We are quite entitled to have regard for this in the context of a review for reasonableness, though we are to make no more of it than appropriate in light of Corbett v. The Queen, [1975] 2 S.C.R. 275. The verdicts against the appellant Donald W. were challenged for unreasonableness on essentially the same basis as those against the appellant Donald R. were challenged, namely that no judge or jury, properly instructed and acting judicially, could reasonably have made the findings of credibility which were made in this case. Obviously, for reasons I earlier expressed, I am not of that opinion, and accordingly I would not set aside the verdicts against Mr. W. on the basis contended for. And I note that he did not testify either. FRESH EVIDENCE According to Palmer v. The Queen, referred to earlier, fresh evidence may be admitted if (i) the evidence could not by due diligence have been obtained for the trial; (ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) the evidence is credible; and (iv) it the evidence is such that, if believed, it could have affected the outcome of the trial. In seeking admission of the certificate confirming the conviction of Peter Klassen following the trial of the appellants, counsel for Mrs. R., who brought the application, argued that the conviction was "relevant, and possibly determinative, in view of the expert evidence to the effect the three R. children exhibited symptoms consistent with having suffered sexual abuse." The argument was developed along these lines--to quote from counsel's factum: The fact that the expert involvement with the children all occurred after the children had had contact with Peter Klassen is an important factor in assessing whether the children's history of abuse must be blamed on their natural parents. In that sense, the new evidence goes to the issue of the identity of the parents as the perpetrators of the same. The point, I take it, is that had Peter Klassen been known at the time of trial to have sexually assaulted the children, while they were in the care of his daughter-in- law Anita Klassen, their sexualized behaviours, consistent with sexual assaults upon them, might have been attributed to sexual assaults upon them by Peter Klassen, and not by the appellants, or might at least have raised a reasonable doubt about the matter. Counsel for the Crown contended that while this evidence might be seen to meet the first three criteria of Palmer, it could not be seen to meet the last of them. The evidence could not have affected the outcome of the trial for the following reasons, according to the Crown's factum: The evidence in this case...establishes inappropriate sexual behaviour from the initial contact of the complainants with the Klassen family. That inappropriate sexual behaviour continued from the very first and grew worse, which points to the conclusion that the complainants were traumatized by sexual assaults before they went to the Klassen's foster home and that the trauma continued and was exacerbated by further assaults. There was also evidence which established what such behaviour means. All of this evidence is corroborative in the modern meaning of the term in that it supports the evidence of the complainants: See R. v. B.(G.) [cited earlier]. The fact that further sexual assaults by others may have increased the trauma of the victims does not lessen the impact of all the of the evidence. The proposed "new" evidence, therefore, could not have affected the result at trial and is not admissible. I think the Crown is right about this. I would only add the observation that the trial judge was aware of the fact, first, that Peter Klassen had been charged with sexually assaulting each of the R. children while they were in the care of his daughter-in-law Anita Klassen and, second, that he had earlier been convicted, on June 28, 1990, of sexually assaulting two neighbourhood girls, aged nine and eleven, on May 1, 1990. This coincided with the removal of the R. girls from the Klassen foster home. It follows that I would not admit this evidence and order a new trial in consequence. Aside from the appeals against sentence, there remains one more matter to deal with, and it concerns the appellant Donald W., who applied to re-open the trial. THE APPLICATION TO RE-OPEN Following his conviction, while he was awaiting sentencing, Mr. W. retained new counsel and made this application so that he could give evidence in his own defence. A voir dire was held, at which former counsel for W. testified, and the application was argued by counsel for both sides on the common footing the trial judge was empowered, in the exercise of discretion, to reopen the trial to this accused. Justice Batten dismissed the application for reasons which may be briefly summarized as follows: 1.Mr. W. was represented by experienced and able counsel who pursued his case diligently. 2.Mr. W.'s decision not to testify was only taken after the Crown had completed its case and the defence had had the opportunity to assess the effect of the examination and cross-examination of Donald R.. 3.Mr. W. was not under any false illusions about his chances of success or pressured not to testify-he agreed with the decision not to testify on three distinct occasions. 4.The evidence he proposed to give had already been brought to the Court's attention through other witnesses and could not reasonably be expected to have influenced the verdict. In concluding, Justice Batten said this: At all times I assume that a plea of guilty means a denial of the offenses on the part of the accused. Although my personal inclination may be to hear the accused, W., in examination and cross-examination, my decision must be [made] judicially, and I can find no basis for exercising my discretion in favour of re-opening. The application is accordingly dismissed. Counsel for this appellant suggested the trial judge erred in law in thus exercising her discretion, for she overlooked a critical consideration: That she might have found Mr. W. a truthful witness and might have been left with a reasonable doubt about his guilt had she heard him out. In my respectful opinion, were this the standard for reopening a trial, all convicted accused, having decided not to testify in the first instance, would have to be given a second shot at the case. I cannot accept that idea, and having regard for the record relating to the application, there does not seem to me to be any tenable basis for interfering with the exercise by Justice Batten of her discretion in deciding not to allow the re-opening of the case. Accordingly I would dismiss this ground of appeal. THE SENTENCES I do not think it can be said that any of these sentences were unfit. They are well within the range of sentences being imposed in this and other jurisdictions for offenses of this nature committed in circumstances such as these. In my judgment, they reflect a fair and appropriate balancing of the several considerations going to the fitness of sentence. These children were subjected to continued sexual and physical abuse which profoundly affected each of them, and I can see very little in the way of extenuating circumstances. In short, I do not think there is any tenable basis to interfere. It follows, then, that I would dismiss these appeals in their entirety. Dated at the City of Regina, in the Province of Saskatchewan, this 10th day of May A.D. 1995. CAMERON J.A. I concur GERWING J.A. VANCISE J.A. (In Dissent) INTRODUCTION The appellants, Donald R., Helen R. and Donald W., were jointly charged with having committed sexual assault, assault causing bodily harm and with having committed acts of gross indecency on the three children of Donald R. and Helen R. Given the nature of the charges and the findings of the trial judge it is necessary to set out the particulars of the counts in the indictment in their entirety. The appellants were jointly charged with having committed sexual assault upon the three infant children, Michael, Michelle and Kathleen, and of having committed an act of gross indecency as follows: 1.between the 1st day of January, A.D. 1993 and the 31st day of December, A.D. 1989 at the City of Saskatoon and at the District of Laird in the Province of Saskatchewan did commit a sexual assault upon Michael London R. contrary to the provisions of the Criminal Code; 2.between the 1st day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon and at the District of Laird in the Province of Saskatchewan did commit a sexual assault upon Kathleen Jessica R. contrary to the provisions of the Criminal Code; 3.between the 1st day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon and at the District of Laird in the Province of Saskatchewan did commit a sexual assault upon Michelle Mimi R. contrary to the provisions of the Criminal Code; 4.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon and at the District of Laird in the Province of Saskatchewan did commit an act of gross indecency with Michael London R. by having the said Michael London R. touch the private parts of the accused contrary to Section 157 of the Criminal Code; 5.between the 1st day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon and at the District of Laird in the Province of Saskatchewan did commit an act of gross indecency with Michelle Mimi R. by having the said Michelle Mimi R. touch the private parts of the accused contrary to Section 157 of the Criminal Code; 6.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon in the Province of Saskatchewan that they did in committing an assault upon Michelle Mimi R. use a weapon to wit a knife contrary to the provisions of the Criminal Code. Donald R. and Helen R., were charged with acts of gross indecency and assault causing bodily harm as follows: 7.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon and the District of Laird in the Province of Saskatchewan did commit an act of gross indecency with Kathleen Jessica R. by having the said Kathleen Jessica R. touch the private parts of the accused contrary to Section 157 of the Criminal Code; 8.between the 1st day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon in the Province of Saskatchewan did in committing an assault upon Michael London R. cause bodily harm to him contrary to the provisions of the Criminal Code; 9.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon in the Province of Saskatchewan did in committing an assault upon Kathleen Jessica R. cause bodily harm to her contrary to the provisions of the Criminal Code; 10.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon in the Province of Saskatchewan did in committing an assault upon Michelle Mimi R. cause bodily harm to her contrary to the provisions of the Criminal Code. The appellant, Helen R., was also charged with assault while using a weapon as follows: 11.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon in the Province of Saskatchewan did in committing an assault upon Michael London R. use a weapon to wit a knife, contrary to the provisions of the Criminal Code; 12.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon in the Province of Saskatchewan did in committing an assault upon Kathleen Jessica R. use a weapon to wit a knife, contrary to the provisions of the Criminal Code; and with incest as follows: 13.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon in the Province of Saskatchewan did have sexual intercourse with Michael London R., while knowing that the said Michael London R. was her son, contrary to the provisions of the Criminal Code. The appellant, Donald R., was charged with incest as follows: 14.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon, in the Province of Saskatchewan did have sexual intercourse with Kathleen Jessica R. while knowing that the said Kathleen Jessica R. was his daughter, contrary to the provisions of the Criminal Code; 15.between the lst day of January, A.D. 1983 and the 31st day of December, A.D. 1989 at the City of Saskatoon, in the Province of Saskatchewan did have sexual intercourse with Michelle Mimi R., while knowing that the said Michelle Mimi R. was his daughter, contrary to the provisions of the Criminal Code. They were convicted after trial by judge alone as follows. Donald R. was convicted of the counts 1, 2, 3, 9 and 10. The trial judge had reasonable doubt about the remaining counts with which he was charged and they were accordingly dismissed. Helen R. was convicted of counts 1, 2, 3, 8 and 11 and the remaining charges against her were dismissed. Donald W. was convicted of counts 1, 2 and 3 and the balance of charges against him were dismissed. FACTS It is sufficient at this stage to set out the factual chronology. Details of the children's testimony and the testimony of others relating to the specific charges will be dealt with at length when considering the specific grounds of appeal. The appellants, Donald and Helen R., formerly married to one another, communicate only through sign language. They had three children none of whom are either deaf or mute. Michael was born in 1979 and the twins, Michelle and Kathleen, were born in 1982. The couple had difficulty raising the children and the Department of Social Services was involved at an early stage. The Department was contacted in 1983, after one of the girls was admitted to hospital and appeared to be suffering from malnutrition. A parent aid worked in the home with the parents to assist with raising the children. The mother, Helen R., had little interest in the children. She had an alcohol problem and spent a good deal of time outside the home. For all intents and purposes, she had effectively withdrawn from the marriage and, from the home, in December of 1985. She and the appellant Donald W. currently reside together. A supervision order was made in 1986. The father, Donald R., was not able to care for the children and they were removed from his care in February, 1987 and placed in a foster home with Anita Klassen. From that point on, Helen R. and Donald W. were only permitted supervised visits with the children. The children continued to have unsupervised weekend visits with their natural father, Donald R., until September of 1987. Those visits ended when the foster mother, Anita Klassen, noted what appeared to be blood spots on Michelle's panties after the child returned from an unsupervised visit with Donald R. She immediately called Mobile Family Crisis, who instructed her to take the child to St. Paul's Hospital. The child was later examined by Dr. McKenna, who found a laceration along the child's labia minora. Michelle told the foster mother and Dr. McKenna "deaf daddy spanked my bum, he put his finger in my bum". The accusations of sexual assault against the natural parents and Donald W. were not made until long after this incident and arose out of a police investigation of allegations of sexual assault of these children by members of the foster family. Allegations of sexual abuse were made against Mr. and Mrs. Klassen and a number of their relatives including Mr. Klassen's father, with the result a number of charges were laid against Mr. Klassen, Sr. and other members of the Klassen family. Ultimately, Mr. Klassen, Sr. pled guilty to sexually assaulting the children and was sentenced to four years in a federal penitentiary. The charges against other members of the Klassen family were apparently stayed in return for the guilty plea of Mr. Klassen, Sr. During the investigation, the children gave statements about their birth parents having killed, cooked and eaten babies, dogs and cats. They also told of being made to eat feces and drink urine and blood. No physical or confirmatory evidence of dead animals or dead babies was found. All three children accused their birth parents and Donald W. of sexual abuse. They also accused at least twenty other adults, including their grandparents, with having abused them sexually. No other charges were laid against the twenty other adults, other than the appellants, who allegedly sexually abused them. The trial lasted some 22 days and, given the dysfunctional state of the three infant complainants, was conducted under extremely difficult circumstances. The birth parents, Donald and Helen R. are deaf mutes who communicate only through sign language which further complicated the conduct of the trial. The taking of the evidence from the three infant children was difficult and time consuming, was at times bizarre and strained the bounds of credibility. Their conduct while testifying was at times bizarre. They tired quickly and their attention span was limited. The three appellants were placed behind a screen during the testimony of the three infant complainants. The trial judge and all counsel treated the children with extreme care and courtesy and attempted to put them at ease when they testified. By and large the approach worked and the children were able to testify about their versions of the alleged offences. The trial judge and the lawyers who dealt with the children during the trial are to be congratulated for the sensitivity they displayed to the children, who are clearly traumatized and dysfunctional. |
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