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Saskatchewan
Justice orders disclosure kept out of hands of accused:
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this page | January
12, 1996 | Crown biased court
Disclosure
Sask. sentencing inconsistent:
study on Court of Appeal: Lawyer fears outcome of appeals may
depend on judge
Kim McNairn, Saskatoon StarPhoenix,
May 1, 2002
The judges on Saskatchewan's
Court of Appeal appear to be divided on how tough they should
be on criminals, according to a new study of rulings from the
court in 2000.
Half of the eight judges consistently
side with the Crown and send people to jail, while the other
half sought alternatives to prison, states the study by lawyer
Dwight Newman, published in the latest edition of the Saskatchewan
Law Review.
It analysed the judgments made
by the court in the year 2000.
The numbers support suspicion
in legal circles about a division on the bench, Newman said in
an interview from England where he is studying at Oxford.
"There is a group of judges
that are keener on traditional sentencing -- some people might
call it tougher sentencing based on jail sentences," said
Newman who also studied law at the University of Saskatchewan.
"Then there is a group
of judges who are more open to alternatives to imprisonment and
are less likely to give a jail sentence and instead to give a
conditional sentence."
Since only three of the judges
sit on panels to hear cases, Newman said there is the potential
for inconsistency.
"There is a danger in
this, insofar as a particular individual who takes his or her
sentencing appeal to the Court of Appeal may get a very different
result depending on which judges happen to be on the panel,"
said Newman.
In 2000, Justices Cal Tallis,
Marjorie Gerwing and Nicholas Sherstobitoff sided with the Crown
on nearly 100 per cent of sentencing appeals.
The other five justices --
Stuart Cameron, William Vancise, Gary Lane, Georgina Jackson
and Chief Justice Edward Bayda -- were less likely to agree with
the Crown. Jackson and Vancise were least likely to side with
the Crown -- only about half of the time.
Ian Wagner, a spokesperson
for the Saskatchewan courts, said the Court of Appeal uses a
computer program to randomly select which judges sit on panels
for different cases.
"Judges are independent.
They rule according to the law as they see fit," he said.
"There is no question that not all judges agree, but that
is why we have dissents in this world."
In his survey, Newman also
found that in 2000 some judges were more likely to give oral
judgments than written.
For example, Gerwing delivered
12 oral judgments and one written -- a 15-paragraph concurring
judgment on the Showgirls case in which the court ruled the province
can ban stripping in places that sell alcohol. In comparison,
Justices Cameron and Sherstobitoff wrote 15 judgments each, while
Cameron issued 14 oral rulings and Sherstobitoff seven.
While the oral judgments are
transcribed and still make it into the legal literature, Newman
said the written ones tend to be more detailed for the benefit
of future cases. He cautions that the issue is one of thoroughness,
not a comment on the workload of judges, who each earn more than
$200,000 per year.
"The written judgments
are more likely to be longer and a more carefully developed view
of the law and the legal principals," he said.
Overall, of the 122 decisions
delivered in 2000, 40 per cent were the more detailed written
judgments.
Many cases that come before
the Court of Appeal will lend themselves to an oral judgment,
noted Wagner.
Although the ruling method
is up to judges, he said they may give oral reasons on the spot
if the issue does not involve a complex issue of law, or if there
will not be any great reliance on the decision in future cases.
Judges also do much of their work before rendering final decisions,
he noted.
"The written product is
part of the work but it is not an indicator to say so-and-so's
carrying all the workload. That is not a fair analysis,"
he said.
"The court invariably
gives reason. They don't just dismiss or grant appeals. There
are always reasons."
Before he began his rise to
the Appeal Court, Calvin Tallis was the legal aid lawyer assigned
to the David Milgaard case. "We
put our trust in him," says Joyce Milgaard. That was before
Tallis abruptly quit the case and was made a judge.
Sheila
Steele's letter to City Council, Nov. 2001
Kathleen
Jessica Ross appeals to Justice Minister, Chris Axworthy, summer, 2001
More on ambitious
and corrupt police officer, Superintendent Brian Dueck
See also School officials
charged for failing to report abuse
"Don't piss in their cornflakes," Labach told Richard
Klassen as he set about to send the evidence of police wrongdoing
and prosecutorial misconduct back to the Crown.
Klassen took
that disclosure and found
the evidence he needed to file a claim against the Saskatoon
Police, Saskatchewan Social Services and Saskatchewan Justice.
Klassen is
here seen with counsel
Ed Holgate outside the Sturdy Stone Center in Saskatoon in the
spring of 1994. Holgate filed the lawsuit and also filed the
Lucas appeal with the Sask Court of Appeal. In January, 1995
that appeal was lost without Holgate being allowed to say a single
word.
"Sit down
and shut up," the
Court told him.
The lawsuit,
Q.B. 271 (1994) has been
at a virtual standstill for the last seven years, except for
the recent flurry of attempted gag orders since the Fifth Estate
picked the Foster Parent story up off the internet.
When nine members of the Klassen family (six in Red
Deer, three in Saskatoon), four members of another family, Helen
R., Don R. and Don W. were all picked up at the same time on
an interprovincial RCMP warrant on June 25, 1991 they had no
idea what was going on. True, Sgt. Dueck had interviewed some
of them. They had been informed that they were being investigated
in connection with allegations made by Helen and Don R.'s children
who were wards of the state. The Red Deer arrestees were held
for six days before being transported to Saskatoon where they
were finally able to obtain bail. They then went home and set
about to prepare themselves for a preliminary hearing which was
held in November. They were ordered
to stand trial at the end of the hearing. During this time
the conditions of their bail contained a contact restriction
on the other arrestees, including members of their own family.
Their Saskatoon lawyer, Daryl Labach, received from the Crown
3 volumes of transcripts of police interviews of the Ross children;
54 pages of notes by Marilyn Thompson, 5 reports by Carol Bunko-Ruys,
social worker; 6 pages of psychiatric examinations of the R children
done at the MacNeill clinic; and twelve hours of police video
interviews. He rented space in a hotel to show the videotapes
to his clients. That was the only time the accused got to examine
the "evidence" against them.
The charges
against all the Red Deer
people were stayed on February 8, 1992. The reason given for
the staying of the charges was that the children were too traumatized
after going through two preliminary hearings and the trial of
Helen and Don R. and
Don W. A staying of charges gives the Crown one year's breathing
time to try to gather more evidence. It is not an acquittal.
Even a complete
acquittal would not set
right the damage done to any person charged with sex crimes against
children. Richard Klassen decided he would not let the matter
drop and that he would do whatever he could to clear his name.
That spring, he went to his lawyer and demanded the disclosure
evidence. LaBach told him he had to return it to the Crown but
Klassen was persistent. He signed a paper agreeing to release
the lawyer from any liability and took that disclosure home.
That disclosure
contained evidence of criminal
conduct by police, social workers and prosecutors. It certainly
contained enough material to warrant a full public inquiry. Richard
Klassen wrote to the officials asking for explanations and then
began calling for a full public inquiry. The people he showed
the material to also joined the call for a public inquiry.
The only people
who experienced any discomfort
as a result of this disclosure being released to Richard Klassen
were Sgt. Brian Dueck, Carol Bunko-Ruys, Prosecutors Matthew
Miazga and Sonia Hanson and Head of Crown Prosecutions Richard
Quinney. Their discomfort comes from being found out and sued.
No one in the public has been hurt. No one's privacy has been
violated.
John and Johanna Lucas were the first people to be
charged with criminal defamation as a result of trying to make
the official wrong-doing public. Richard Klassen was charged
later on, along with Rob Klassen and Sheila Steele but the charges
on the latter two were quashed.
The Lucases
were convicted and lost
appeals at both the provincial and Supreme Court levels.
It is this part of the Saskatchewan Court of
Appeals' decision that reveals the real concerns of Saskatchewan
Justice: they don't care about bad police investigations and
manufactured evidence or relentless prosecutions or free speech.
They do care about the fact that their nefarious workings were
discovered and made public. And that is what they do not want
to see happen again. The Ross
Disclosure
From the Saskatchewan Court of Appeals Decision,
R v John and Johanna Lucas, January 12, 1996
. . .While it is not necessary
for the resolution of this matter to comment on the way in which
Mr. Lucas received copies of the documents which formed the basis
for his concern for how the police, and in particular Sergeant
Dueck, handled the investigation of the allegations of sexual
assault and abuse against certain individuals, the facts of this
case oblige us to do so. An examination of the transcript reveals
that Mr. Lucas testified he received these documents, which contained
details of sexual abuse of two sisters by their brother as well
as details of sexual abuse of those three children by adults,
described as the "Thompson papers" during the trial
in three instalments(sic). He received the first and second instalments
in his mailbox anonymously. Mr. Lucas was unable to say who put
the papers in his mailbox. With respect to the third instalment
of the "Thompson papers," Mr. Lucas testified he received
them from a Richard Klassen and that he was present when Klassen
received them from his (Klassen's) lawyer. It would appear that
the disclosure of the information and documentation, which was
made to Klassen to permit him to make full answer and defence,
was given to persons other than Klassen, at least Mr. Lucas.
There are many interests which require protection in a criminal
trial, not only the interests of the accused person but also
the privacy interests of victims, witnesses and the need to protect
the integrity of the interests of justice. There is a need to
ensure that the various interests be balanced and accommodated.
This issue was examined
at length in the Report of the Attorney General's Advisory
Committee on Charge, Screening, Disclosure and Resolutions Discussions
(The Martin Committee Report) submitted to the Attorney General
of Ontario in 1994. The Committee examined, among other things,
the improper dissemination of disclosed information. It recommended:
The Committee
is of the opinion that it is inappropriate for any counsel to
give disclosure materials to the public. Counsel would not be acting responsibly as
an officer of the court if he or she did so.
The Committee is of the opinion
that defence counsel should maintain custody or control over
disclosure materials, so that copies of such materials are not
improperly disseminated. Special arrangements may be made between
defence and Crown counsel with respect to maintaining control
over disclosure materials where an accused is in custody, and
the volume of material disclosed makes it impractical for defence
counsel to be present when the material is reviewed.
These two recommendations,
as the Committee noted:"responsibly reconcile the need to
provide full disclosure with the need to prevent the misuse of
disclosure material." We agree with those recommendations
and comments. The material which is disclosed for the purpose
of making full answer and defence should not be released to third
parties either by the lawyer representing the accused or the
accused person himself. . . .(emphasis in red by injusticebusters)
The
entire justice system is telling us that we cannot look at written
police evidence without a lawyer present. This allows the Crown
to bury the case in so much paper that no lawyer could possibly
have time to go over it thoroughly. It is a farce that they should
use the term "full answer and defense" in the same
breath as stating this disclosure rule. How can you prepare a
defense if you can't properly study the case?
injusticebusters say this is one more good reason not
to get a lawyer in Saskatchewan.
When you defend yourself, the
Crown must give your disclosure to you! injusticebusters maintain
there can be no full answer and defense unless the accused has
complete access to his/her file, including sharing that file
with anyone. We ask: who has hurt Kathy? We answer: Michael hurt
Kathy. Dueck hurt Kathy. The Crown has hurt Julie. Hiding her
identity has done nothing to help her. And it has done nothing
to help Michael and Michelle, either. In fact, because their
names were published on the internet, they were able to finally
get the facts about some important information in their own lives.
This would not have been possible if we had not defied thepublication
ban.
In late 1998, we learned that
Michael was at the Saskatchewan Correctional and arranged for
Ed Holgate to obtain from him an affidavit.
Early in 1999, Michelle Ross
contacted injusticebusters. She had read the material on the
website and she wanted to know more. As it turns out, she was
just as agregiously treated as Kathy.
Gradually, the victims in this
case are discovering the full truth of what hapened, and they
are doing it by going over the transcripts, documents and tapes
which the Sask. Appeal Court states they should never see.
Update, Feb.
5, 2001: Today, Kathy Ross
came forward on the national CBC news show Canada Now and told
Jo Lynn Sheane that not only had she told lies about the Klassen
and Kvello families but that Saskatchewan Social Services had
actively intervened to prevent the Fifth Estate from contacting
her. How can we say this? First, it was her foster mother Joy,
in Vernon B.C. who lied to the Fifth's investigators, saying
that Kathy did not want to talk about it. Second, Joy takes her
orders from Diane Ens who tells Social Services to issue checks
to Joy for fostering Kathy. We also know that Joy actively tried
to keep Kathy from knowing the name of our website, from contacting
Michael and Michelle and her parents and from seeing the Fifth
Estate show, "Scandal of the Century."
We received this note via e-mail, May,
1999: . . .Just thought you'd like to know that Fred Rutledge,
the Ottawa school teacher wrongfully accused of sexual aggression
on students, is now suing the Police force...injuticebusters
School officials charged
for failing to report abuse
Ottawa-Carleton
District School Board opposes the charges and is defending them.
Toronto Star editorial October
23, 1998
The charges against Suzanne
Malinos, Chantal Racine and Jo-Ann Cook were laid under the Ontario
Child and Family Services Act, which requires adult professionals
who deal with children to report any suspicions of abuse.
A police investigation led
in September to sexual abuse charges being laid against Fred
Rutledge, a former teacher at suburban Fallingbrook Elementary
School. It is alleged he assaulted two primary-school girls.
Police say they found evidence
to suggest that other school staff may have suspected the abuse
was taking place, but didn't contact authorities.
The school board conducted
its own investigation and reached a different conclusion.
As a result, the board
intends to vigorously defend the charges,'' it said in statement.
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
