R. v. Ngoddy
Court File No.: Toronto Region Date: 2015-08-17 Ontario Court of Justice
Between: Her Majesty the Queen — and — Valentine Ngoddy
Before: Justice Carol Brewer
Heard on: June 3 and 4, 2015 Ruling released on: August 17, 2015
Counsel:
- Joshua Tupper, for the Crown
- Daniel Etoh, for the defendant, Valentine Ngoddy
- David Butt, for the complainant, MGW
Brewer J.:
Introduction
1Valentine Ngoddy is charged with two counts of sexually assaulting MGW between January 14 and 15, 2014, when he was working as a temporary staff member at a group home run by the Reena Foundation.
2The complainant is a very vulnerable person. She suffers from autism, severe anxiety disorder, bipolar affective disorder, obsessive-compulsive disorder and behavioural problems. Ms. MGW also has a developmental disability.
3MGW made six statements alleging sexual abuse by the defendant:
- on January 15, 2014 to her daytime personal support worker, Shree McIntosh;
- on January 15, 2014 to her evening personal care worker, Susana Gordon;
- on January 15, 2014 to Glenford Williams, the supervisor of the group home;
- on January 16, 2014 to the police in a videotaped interview;
- on January 17, 2014 in response to questioning by her mother; and
- on January 29, 2014 in a second videotaped interview.
She also wrote two letters detailing her allegations against the defendant at the suggestion of Ms. Gordon.
4Crown counsel is seeking the admission of the initial statement of the complainant, to Ms. McIntosh, for its truth. On behalf of the defendant, the introduction of the statement is opposed on the basis that it fails to meet the twin requirements of admissibility, necessity and reliability. I gave standing to Mr. Butt to make submissions in relation to the necessity requirement.
The Evidence
A. The Complainant's Condition
5MGW is 28 years old. She was diagnosed with both mental health and developmental disabilities when she was four years old. The complainant resides in a group home with several other adults, where she was placed in 2011. The complainant has one on one care from a personal support worker from 7:30 a.m. to 11:00 p.m. on weekdays and 9:00 a.m. to 5:00 p.m. on weekends. She attends a day program, along with her support worker, on weekdays between 9:00 a.m. and 2:50 p.m.
6Cognitive testing shows that MGW has an IQ score in the extremely low range (2nd percentile). Her verbal intelligence is at the extremely low range and her performance IQ is in the low average range. She has "severe" impairment of the ability to use language and to reason using words. By contrast, her non-verbal ability, such as visual-spatial reasoning, is in the high average range. This gives her a strong "capability of visually analyzing the environment and drawing knowledge from it", even though she cannot express it verbally. She has poor working memory and processing speed. Dr. Bruce Linder has described the complainant as "cognitively complicated". The doctor portrayed MGW in the following terms:
… she's a highly complicated person when it comes to her cognitive abilities. Severe language impairments, obviously with verbal IQ being so low, but yet with non-verbal IQ and visual abilities being so strong. But with auditory attention being weak and processing speed being weak, even her non-verbal abilities, which are strong, might be severely compromised in how they express themselves in the real world.
7The complainant can function in the basic skills of living like an average adult, but cannot live on her own because of her emotional and behavioural problems. In language she functions like someone "four, five, six years old".
8In the area of delayed memory, Dr. Linder "drew the conclusion that [the complainant] had the potential to be able to validly recall visual information, especially if it was emotionally relevant to her." Where an event has a lot of emotional impact, MGW "is quite capable of recalling that. And her history has suggested as well she's known to be able to recall minute details of events that occurred quite a long time ago that she's developed an obsession about." Like many autistic persons, the complainant can develop a preoccupation with an experience and relive that experience over and over again, which makes it "very memorable". In such circumstances, the doctor stated that MGW might be able to tell a consistent, albeit fragmented, story in circumstances where she is relaxed with support staff and can put together her thoughts.
9MGW suffers from behavioural problems involving aggressive behaviour directed at others and triggered by their hair and clothing about which she has long-standing obsessions. The complainant will hit others and have yelling and screaming episodes. This conduct has improved over the years that she has been living in the group home.
10Prior to the alleged offence the group home staff described MGW as "friendly""happy" and enjoying community outings. Her mother commented that the complainant had made tremendous progress at her group home: she was calmer, her behaviour improved, she was able to go out in the community in the company of her support worker and to do volunteer work.
11When interviewed by the police, MGW was placed in a "soft interview room", which is a more relaxed and private environment, where there is a better ability for the officers to establish rapport. Although her support worker was with MGW at the police station, she was not present for the interview. The complainant was cooperative with the officers. She promised to tell the truth and related her version of the events without incident.
12On December 22, 2014 MGW came to the courthouse, accompanied by family and her support worker, for the purpose of meeting Crown counsel and the Victim-Witness worker and being oriented as to the layout of the court. The visit did not go well. The complainant was very agitated, quite withdrawn and wanted a lot of support. She cuddled up to her father's partner in the Victim-Witness Program office. MGW displayed a number of different anxiety behaviours, including trying to take her top off, huddling next to caregivers, refusing to talk, curling into a fetal position on a bench, licking her father's pants and attempting to sleep.
13Following the visit to the courthouse, the complainant's behaviour regressed significantly. In the group home setting her old behaviours re-emerged. She became distressed, anxious, agitated and hyper. The complainant would display her anxiety by tensing up, hyperventilating and jumping up and down. MGW is more violent, lashing out at people, including her family and caregivers. The complainant has returned to smearing things with saliva. Her obsession with women's clothing and hair has come back. MGW does not want to eat and has lost 10 pounds from her 110 pound body. The complainant has stopped making eye contact. She has more trouble sticking to one subject when she communicates. MGW is unable to enjoy previous activities, such as going shopping or eating in a restaurant. In the words of her support worker, the complainant can no longer "enjoy what is in front of her". Even now, MGW continually refers to the defendant and asks why he did this. She has missed appointments with her therapist because of hysteria. The complainant has been showing signs consistent with depression.
14When asked about MGW's ability to participate in the court process, Dr. Linder testified:
I simply cannot envision any circumstances, any whatsoever, in which she could come into this court and answer any questions like you've asked me or face … the defendant or submit to cross-examination without substantial behavioural escalations to the level of physical aggression, verbal aggression, agitation, screaming and yelling and so forth.
He added that:
Even if you could contain her, her thought processes would be so disorganized because of the anxiety and other emotions raised that you wouldn't get a coherent and valid testimony about the events that transpired.
15The doctor also said that coming to court to testify would potentially be an emotionally significant event that could become an obsession for the complainant. He viewed the possibility of testifying as a "traumatic life experience" that would "reignite" her past behaviours and cause them to continue for "maybe even several years". According to Dr. Linder"she does not have the emotional coping strategies to recover". There could also be secondary negative effects such as the loss of the ability to benefit from therapy and the loss of her placement in the day program. Alternatively, if the complainant was required testify, the use of a CCTV camera and other testimonial aids might make it "possible" for MGW to participate in the process.
B. The Circumstances Surrounding the Initial Statement
16On January 15, 2014, MGW and Shree McIntosh were at the day program. Just before lunch the two women went to the bathroom and entered separate stalls. No one else was present. The following exchange occurred:
MGW: Shree
SM: Yes, M.
MGW: Why did agency staff, Mike, kiss my breasts, touch my vagina and put his penis on my body?
SM: Sorry?
MGW: I am going to tell Mike and Susana Gordon that he is not to do this.
Ms. McIntosh assured the complainant that it was not her fault and that this information needed to be reported to a supervisor.
Analysis
17Hearsay evidence is presumptively inadmissible. However, pursuant to the principled approach adopted by the Supreme Court of Canada, out of court statements may be admitted for their truth, if they meet the dual requirements of necessity and reliability: R. v. Khelawon, 2006 SCC 57.
A. Necessity
18The necessity criterion refers to the obligation to establish that the out-of-court statement is needed for a full, frank, candid and accurate account of the declarant's evidence.
19In this case, Crown counsel seeks to adduce the initial statement made by the complainant. He takes the position that MGW would be further traumatized if she was required to testify. In light of the recent decision of the Court of Appeal in R. v. Rhayel, 2015 ONCA 377, Mr. Tupper accepts that the later complaints of MGW are not admissible. They are unnecessary as they are repetitious of the initial statement and to that extent they would violate the rule against prior consistent statements.
20By contrast, defence counsel submits that MGW was able to communicate her evidence to the police in the two videotaped statements. Accordingly, Mr. Etoh reasons that the complainant should be able to relate her version of the events in court, provided that she has the benefit of testimonial aids, such as a support person and communication through CCTV.
21It is well established that where there is evidence that a complainant would be traumatized by being called as a witness, the element of necessity is made out: see R. v. Khan, 59 C.C.C. (3d) 92 at 104-105; R. v. Rockey, [1996] 3 S.C.R. 829 at ¶5, 20, 23, 28; R. v. Simon, [2000] O.J. No. 2151 (S.C.J.) at ¶16; D. Watt, Watt's Manual of Criminal Evidence, 2015, (Carswell) at p. 416.
22In my view, the crucial circumstance that tells against the defence position is the impact of the December 22, 2014 court visit on the complainant. There was evidence from both support workers and MGW's mother as to the traumatic effect that appearance at court had on the complainant. It is clear that MGW has regressed in a significantly negative manner since the time of that relatively innocuous visit. Dr. Linder explained that the detrimental effects of the visit could last for months or even years. I recognize that the doctor thought it "possible" that the complainant could testify with accommodations, such as CCTV. However, his evidence compellingly describes the devastating effects of the court visit on MGW and the probability of similar effects were she to be required to testify in this case.
23Accordingly, I am satisfied that the Crown has established the necessity requirement on a balance of probabilities.
B. Threshold Reliability
24The reliability criterion deals with circumstantial guarantees of trustworthiness. As a general rule, the party seeking the introduction of hearsay evidence must establish that there are no real concerns about either:
- the truth of the statement because of the circumstances in which it was made; or
- the offer of the statement as hearsay because, in the circumstances, there are adequate substitutes for the traditional safeguards relied upon to test evidence when it is heard in court, so that the trier of fact can meaningfully assess its truth and accuracy.
These two means of addressing the reliability requirement are not mutually exclusive. Instead, they simply assist in the identification of factors that require consideration in the trial judge's assessment of admissibility: R. v. Khelawon, supra; Watt's Manual, supra at p. 420-421.
25In this case, the circumstances that surround the making of the initial statement are as follows:
- this was a spontaneous utterance made to a person who the complainant trusted;
- the statement was not prompted by anything said by the recipient, Shree McIntosh;
- although there may be an issue as to the degree of contemporaneity of the statement, Dr. Linder testified that MGW needs to consider traumatic events before being able to speak of them;
- Dr. Linder stated that the complainant has the ability to recall emotionally significant events and that she will speak about them repeatedly. MGW's personal care workers described the complainant repeatedly mentioning the defendant and her allegations of sexual contact;
- there was no indication of any animus against the defendant or any motive to fabricate.
26Mr. Etoh has pointed out that there are discrepancies between the initial utterance to Ms. McIntosh and the complainant's videotaped statement to the police. From the perspective of threshold reliability, it appears to me that the fact that the defence is in a position to use the complainant's subsequent statements for the purpose of showing inconsistencies is a procedural safeguard that substitutes for the lack of ability to cross-examine MGW. In my view the existence of any such discrepancies is a factor that bears on the ultimate reliability of the statement being tendered by the Crown.
27In all of the circumstances, I am satisfied that the Crown has established threshold reliability on a balance of probabilities.
Conclusion
28MGW's initial statement to Shree McIntosh is admissible for the truth of its contents.
Released: August 17, 2015
Signed: "Justice Carol Brewer"
1Dr. Linder was qualified as an expert in psychology, rehabilitation, counseling and behaviour analysis.
2Ms. McIntosh testified that MGW called the defendant by the name Mike.
