WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Between:
HIS MAJESTY THE KING
— AND —
Ridwan Oloko
Before: Justice J. Strasberg
Heard on: October 3 & 4 2022
Reasons for Judgment released on: November 28, 2022
Counsel: A. Penny, for the Crown J. Vamadevan, for the accused Ridwan Oloko
Ruling on the Crown’s Application to Adduce Out-of-Court Statements made by W.W. at Trial.
Overview
1The Crown brought an application seeking to adduce out-of-court statements made by the complainant, W.W., for the truth of their contents. The Crown submits that they are admissible under the principled exception to the rule against hearsay adopted by the Supreme Court of Canada in R. v. Khan, [1990] 2 S.C.R. 531.
2The accused is charged with one count of sexual assault against the complainant W.W. The offence is alleged to have been committed in the group home where W.W. resides. The accused is a Personal Support Worker (“PSW”) who was working the night shift at the group home on January 27, 2021, into the morning of January 28, 2021.
W.W. is an adult with Down Syndrome.
3W.W. resides in a group home operated by Community Living Toronto. In this home, she has her own bedroom and is able to take care of her personal needs. She relies on the PSWs to assist her with tasks, such as: organizing her finances, going out in the community, and preparing meals. W.W. does not speak in full sentences but can say a few words at a time. She is more comfortable with people with whom she is familiar. She enjoys a precise daily routine and is a private person, particularly surrounding her bedroom.
4During the day, three PSWs are on staff at the home. At night, the home is staffed with just one PSW. On the evening of January 27, 2021, no regular staff were available for the night shift. As such, the shift was outsourced to a company called “Frontline.” Mr. Oloko was employed at Frontline and attended for the shift. The shift was from 9:00 PM on January 27 until 8:30 AM on January 28. Mr. Oloko had covered shifts at this home before. The regular staff recognized him, and two staff members interacted with him directly on the evening of January 27. Mr. Oloko had also been in the home for the night shift on the two evenings prior to January 27, that being January 25 and January 26.
5On the morning of January 28, 2021, W.W. did not want to shower. At lunch time she pointed to her vagina. Staff did not know what this meant. W.W. appeared frustrated that they did not understand.
6At dinner time, W.W. asked if the support worker coming that night would be a man or a woman. She indicated that she did not want it to be a man. She was upset and this led to her providing further information to the daytime PSWs alleging that Mr. Oloko had come in her room and touched her in a sexual way.
7It is the Crown's position that W.W. is unable to effectively communicate her evidence to the Court at trial. The Crown seeks to tender a series of hearsay statements she made to three PSWs who worked at the group home. The Crown contends that these statements by W.W. are all reasonably necessary and sufficiently reliable. The accused is opposed to the admission of these statements. The accused submits that the Crown has failed to establish both necessity and reliability.
The Evidence on the Voir Dire
8S.R. is a case load manager working for Community Living Toronto. On January 27, 2021, she worked at the Florens Avenue home and had been a case manager for W.W. for 1 ½ years. S.R. assisted W.W. with various tasks such as taking her to appointments and helping her with her finances. S.R. testified that W.W. was not a woman of many words. She took time to get comfortable and open up. People interacting with W.W. had to take their time with her and avoid trying to take control. S.R. described W.W. as taking a long time to complete tasks. It sometimes took W.W. 5 hours to just get dressed. W.W. only communicates when she needs to or when something is pressing her. She speaks but uses few words, not full sentences. She uses her hands to visually communicate what she means when words fail her.
9A.C. also worked at the Florens Avenue home on January 27, 2021. She had been working with W.W. for 10 months. She described W.W. as being quiet and keeping to herself. She explained that W.W. would speak with minimal words and in broken sentences. W.W. was independent inside the home but could not go out on her own. W.W. speaks with few words and also uses gestures if she can’t find the words.
10On January 27, 2021, K.A. also worked at the Florens Avenue home. She had been working there 5 days a week for a 12-hour shift. In total she had worked with W.W. for 7 years. She described W.W. as a peaceful and organized woman. She indicated that W.W. does all her chores, including laundry and changing her bedding, and that she cleans her room on her own. K.A. testified that W.W. does not talk much and is more comfortable with those that she knows then with strangers.
11Overall W.W. was described by all as being very independent in her personal needs, but her ability to communicate is limited to a few words at a time, broken sentences, and gestures.
12The information W.W. provided to the three PSWs regarding the allegations was done in a combination of words and actions. In summary, W.W. communicated to them that the “overnight” came into her room, was on her bed on all fours, pulled down her underwear, touched her and that her vagina was sore.
13I had the opportunity to watch two videos filed as exhibits on the voir dire. The first video was recorded on January 29, 2021, and is approximately 15 minutes long. The video captures two female police officers with W.W. M.B., who was the program supervisor at the Florens house, is also present and is well known to W.W. They are all seated in the basement of the Florens home. In the video, W.W. is largely unresponsive to the questions being asked by the officers. When asked if she is afraid of the officers, a quiet “no” can be heard. Whenever the officers touch on a question related to the incident, for example, “something happened in your bedroom can you tell us?” or “remember what you told S.R.?”, W.W. can be seen to have a reaction but make no verbal response. The officers try several times in different ways. There are long pauses while they wait for her to answer, but she does not. Even when M.B. tries to ask the questions, W.W. gives no response.
14The second video, which is approximately 30 minutes long, was also recorded on January 29, 2021. This took place in W.W.’s bedroom in the Florens home. When asked questions about her room, her art and dancing, W.W. physically reacts, smiles, and gives a one-word response. She shows some of her possessions to the officers, for example her hand cream. When asked “if she feels ok” she nods yes. When asked about breakfast she whispers “eggs.” All her responses are a shaking of the head, or a single word in nothing more than a whisper. When questioned regarding the incident, she has to be asked the same question over and over. On the rare occasion that she provides an answer, it is a single whispered word. As the interview progresses, she is not able to provide answers to simple questions unrelated to the offence. When asked to show what “the man” was doing she makes an action towards her vagina. She is able to say the word vagina, but nothing more. She is asked many times what happened with the man. She is able to act out him getting on all fours on the bed and show herself lying beneath him, but she is unable to provide any verbal response on these points.
The Principled Approach to the Admissibility of Hearsay Evidence
15Hearsay evidence is presumptively inadmissible. However, it may be admitted under the principled approach if both the criteria of necessity and threshold reliability are met. The onus is on the party seeking to rely on the evidence on the balance of probabilities. R. v. Bradshaw, 2017 SCC 35 at para. 1.
16The relevant question in relation to the necessity element is not whether the admission of the hearsay evidence is necessary in an absolute sense, but rather whether the hearsay evidence is reasonably necessary in the circumstances. Necessity has been given a broad and flexible definition that is capable of covering diverse situations. R. v. F.C., 2015 ONSC 6428 , [2015] O.J. No. 5383 at para. 13.
17In R. v. Smith, [1992] 2 S.C.R. 915, at page 933-934, Chief Justice Lamer suggested that necessity could arise in two ways. If the person whose assertion was offered was dead, out of the jurisdiction, insane, or otherwise unavailable; or where the assertion was such that it was unreasonable to expect to obtain evidence of the “same value from the same or other sources.”
18The case law does not mandate that any particular kind of evidence be adduced to demonstrate necessity. Necessity may be found on “the facts and circumstances of the case as revealed to the trial judge, or from evidence called by the Crown”. In keeping with the overriding principle of flexibility, the key is that necessity be grounded in evidence that is appropriate to the circumstances. F. (W.J.), [1999] 3 S.C.R. 569 at para. 41.
19If a complainant is physically available and there is no suggestion that she would suffer trauma by attempting to give evidence, that evidence should generally not be pre-empted by hearsay. R. v. Parrott, 2001 SCC 3 , [2001] S.C.J. No. 4 at para. 77. Usually, the Crown will put the complainant forward as a witness on the voir dire in order for the trial judge to evaluate his or her testimonial capacity. However, this is not an absolute legal requirement in every case. Ibid. at para. 12.
20With respect to the reliability element, it is threshold reliability that is being assessed at the admissibility stage. The question is whether the hearsay statement is sufficiently reliable to be made available to the trier of fact. Threshold reliability is distinct from ultimate reliability, which is a determination made by the trier of fact at the end of the case. It is essential that trial judges do not weigh in on ultimate reliability at the admissibility stage. R. v. Khelawon, 2006 SCC 57 , [2006] S.C.J. 57 at para. 93.
21The standard for threshold reliability is high. Hearsay evidence will only be received when “it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.” Khelawon, supra, at para. 35, 48-49, 61. Hearsay dangers relate to whether there are difficulties in assessing the declarant’s perception, memory, narration, or sincerity. Ibid. at para. 71.
22At the threshold stage, the court must consider whether there are means to overcome the hearsay dangers. This is done by considering two methods of assessment: Bradshaw, supra at para. 27; Khelawon, supra, at para. 61-63.
- Procedural Reliability: Are there adequate substitutes for testing the truth and accuracy of a statement since there is no opportunity for contemporaneous cross examination? And/or
- Substantive Reliability: Are there sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy? In other words, do the circumstances and any corroborative evidence provide a sensible basis to reject alternative explanations for the statement leaving only truth and accuracy?
23In this case, the Crown submits the statement meets the threshold for admissibility on the basis of substantive reliability. The substantive reliability evaluation considers the inherent trustworthiness of the hearsay statement itself. It is concerned with whether the statement is true. When the only likely explanation is that the statement is true, it is substantively reliable. Khelawon, supra, at para. 52. It must be shown that the statement is “so reliable that contemporaneous cross examination of the declarant would add little if anything to the process.” Ibid. at para. 49, 107.
24Threshold reliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.” Bradshaw, supra at para. 26; Khelowon, supra at para. 49. These dangers arise from the absence of contemporaneous cross-examination of the complainant. Bradshaw, supra at para 26; Khelowon, supra at paras. 35 and 48. In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them. The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. Bradshaw, supra at para. 26.
25There are two components to the substantive reliability analysis. The first is whether there are guarantees of trustworthiness arising from the circumstances in which the statement was made. The second is whether there is corroborative or contradictory evidence for the material aspects of the statement. Ibid. Supra, at para. 62, 94-100. For purposes of threshold reliability in this case the Crown is relying on the first component, the circumstances in which the statement was made.
26The circumstances in which hearsay evidence arose or the characteristics of the evidence may inform the likelihood of whether the declarant was honest and accurate. Where a party seeks to satisfy the requirement of reliability on the basis of the circumstances in which the hearsay statement was made, some of the relevant factors to be considered include:
(1) the timing of the statement in relation to the event reported; R. v. J.M., 2010 ONCA 117 at para. 54; R v. R. v. Khan, Supra, at para. 30. (2) the absence of a motive to lie on the part of the declarant; Ibid at para. 54. (3) the presence or absence of leading questions or other forms of prompting; Ibid at para. 54. (4) the nature of the event reported; Ibid at para. 54. (5) the likelihood of the declarant's knowledge of the event, apart from its occurrence; Ibid at para. 54. (6) confirmation of the event reported by physical evidence; Ibid at para. 54. (7) the fact that the statement is made against the declarant’s interest or not in favour of their interest; Khan, Supra at para. 21. (8) the fact that the disclosure emerged naturally and without prompting; Ibid at para. 34. (9) the demeanor of the declarant at the time of the disclosure; Ibid at para. 30. (10) the fact that the disclosure was made to a person(s) who you would not expect the declarant to be untruthful to; R. v. Pearson, [1994] B.C.J. No. 2828 (C.A.) at para. 44; and (11) the lack of impossibility of mistake in identity. Parrot, Supra. at para. 70.
The Position of the Parties
The Position of the Crown
27The Crown submits that it is apparent from two videos statements with W.W. that were filed on the voir dire that she cannot communicate her evidence. Bringing her to court for the voir dire would serve no purpose. The Crown is not relying on these two video statements for their truth. They have been tendered to show the court how the complainant reacts to questioning and the limits in her ability to communicate the evidence.
28On the issue of reliability, the Crown submits that the circumstances surrounding the making of the statements by W.W. to the PSWs support the truth of the statements and thus they are sufficiently reliable to meet the threshold for admissibility.
The Position of the Defence
29The defence submits that in failing to bring W.W. to court on the voir dire to show she cannot communicate the evidence the Crown has failed to prove that the statement is necessary. Further, the defence argues that the Crown has not met its onus for substantive reliability. He submits that aside from the spontaneity of the statements there are no guarantees that the statements are trustworthy.
Analysis
Necessity
30Section 16(4) of the Canada Evidence Act speaks of an ability to communicate the evidence. In the context of an adversarial trial, this requires some evidence that the proposed witness has the capacity to relate the contentious parts of her evidence with some independence and not entirely in response to suggestive questions. In order to be found capable of communicating her evidence, a witness must have the capacity and a willingness to relate to the court the essence of what happened to her. R. v. Caron, [1994] O.J. No. 1591 (C.A.).
31Normally, a complainant will be brought to court so the trial judge can determine whether it is necessary for the evidence to be received through the witness or other means. I find that this is one of those rare cases where forcing the complainant to come to court would not provide me with any further evidence of her capacity to communicate the evidence.
32It is apparent from the videos that W.W. is incapable of testifying in a meaningful way. She is unable to communicate what happened to her in the comfort of her own home. It is difficult to see how she would be any better at communicating in an unfamiliar setting with strangers. The video afforded me an ample and realistic opportunity to evaluate W.W.’s ability to communicate her evidence about the incident. As stated, this is one of those rare cases where the need to have the complainant come to court to prove necessity is unwarranted. There is nothing to be gained but to cause trauma to W.W.
33Unlike the situation in R. v. Parrott, there is an adequate evidentiary foundation in this case to make that determination. The video effectively captures how W.W. reacts to questioning. In the video, W.W. is questioned in the comfort of her own home by two female officers with her worker who she is comfortable with present. Most importantly, unlike in Parrott, the video is an attempt by the officers to take a statement from W.W. regarding the allegations in this case. I am certain that if W.W. were brought to court, a place totally foreign to her, and was subject to questioning from strangers, her ability to communicate would get worse, not better.
34The defence argues that as the court said in Parrott, Supra, at para. 72, W.W. could have been brought to court and could have been examined before me in a format that would have attempted to put her at ease. I could have ensured that nothing, including questions put to her by counsel, would be used to demean or embarrass her. From what I observed on the video and heard in evidence, it is not an issue of asking questions in a manner so as not to demean or embarrass her. Given W.W.’s cognitive ability as described by the PSWs and as evident in the video, I observed that she wouldn’t even be alive to the manner of questioning. It is her inability to communicate the evidence that is the issue. Even if she does have a present recollection of the events from almost two years ago, it is clear that she would not be able to communicate “the essence” of that evidence.
35It is apparent from the videos that W.W. is incapable of testifying in a meaningful way, especially in the unfamiliar setting of a courtroom, about personally traumatic events that took place in January of 2021. The two videotaped interviews with the police, in the company of her caregiver and in her home setting afforded an adequate opportunity to evaluate W.W.’s ability to communicate evidence about the incident. There would be nothing to be gained by repeating this exercise before me in court.
36I find that the Crown has met her onus on the necessity requirement because the information provided by W.W. to the PSWs working at the home on January 29, 2021, is not otherwise available.
Reliability
37Clearly there are specific hearsay dangers presented by the out-of-court statements made by W.W. This evidence cannot be tested by cross-examination. She is a person with great difficulty communicating. Given her mental capacity, she may have other difficulties, including memory and narration. In order to evaluate whether these dangers have been overcome, I must conduct a realistic evaluation of the circumstances in which the statements were made.
38The statements made by W.W. were made very shortly after the alleged incident. Her disclosure emerged naturally and without any prompting in the context of the impending arrival of the “overnight” PSW.
39The statements are corroborated by observations of the PSWs about changes in W.W.’s behaviour at their first opportunity to see her after the alleged events. The PSWs observed that W.W. was not herself in the morning. Her usual routine was off. W.W. tried to communicate with the PSWs and was frustrated when she could not be understood by them. She threw her clothing in the cupboard in her room, which was very out of character for her. Her room is always very organized. This is apparent from the video with the officers was taken in her room. You can see the care she takes when placing items on her dresser.
40W.W. had no motive to fabricate the allegations. Mr. Oloko was there to provide care and support to her. He had been there the two nights prior to her disclosure and there was no issue. W.W. cares for herself and does not need medication at night. Staff are aware that she does not like people in her room. There is no reason for the “overnight” to be in her bedroom. When asked, Mr. Oloko told staff the next morning that everything was fine the night before.
41The staff who know W.W. well knew that something was wrong by the way she was behaving. They noticed her demeanor had changed and that she was agitated. They described her as rubbing her hands, not showering, coming in and out of the room, showing frustration, and having teary eyes. To the staff who know her, these were clear indications that something was wrong with W.W.
42Throughout the day W.W. was trying to communicate with the staff. They all testified that she is usually quiet, and it is only when something is pressing that she speaks.
43The PSWs are a part of W.W.’s everyday life. She counts on them for help and care. They are people you would expect her to be truthful with.
44Mr. Oloko was the only PSW working overnight. All the staff in the home refer to the person who comes at night as the “overnight.” W.W. knows this term and uses the word “overnight” to describe the staff that is there at night. From the time the other PSWs left until they returned in the morning there was no one else with access to the home. Mr. Oloko indicated to the workers that everything went well that night. W.W. indicates the gender of the overnight as male. All the other staff are female. There is no mistake that the person she is referring to is Mr. Oloko.
45While W.W. is incapable of providing a full narration of what took place, in addition to her verbal account of what took place she used gestures and actions to describe what happened. These are specific observations made by the PSWs. Her evidence that the “overnight” came into her bedroom and her demonstration of the “overnight” on all fours on the bed above her are details that apart from occurring would likely not be within the knowledge of W.W.
46After dinner on January 28, W.W. asked the PSWs who was coming at nighttime. She was told the name and then asked if it was a man or a woman. She had never asked the gender of the “overnight” before. This was without prompting. The staff thought this was strange. When told it was a woman, W.W. made a face. She began blinking and rubbing her hands. The staff knew from this that she was agitated, that something was wrong and that she wanted to tell them something. She was then asked if she was uncomfortable having men at night and she said “yes”, while clenching her fingers and nodding her face up and down.
47While W.W.’s account is not a fulsome linear narration of the events her perception, memory, and sincerity regarding the events in their immediate aftermath is obvious, observed in her behaviour and very compelling. The circumstances surrounding her disclosure support the truth of her statements. For all of these reasons, I find that the out-of-court statements are sufficiently reliable to meet the test for threshold admissibility.
Conclusion
48In applying the governing legal principles, I have reached the conclusion that the Crown has established that the hearsay statements made by W.W. to the three PSWs are admissible at trial for me to consider along with the rest of the evidence.
Released: November 28, 2022 Signed: Justice J. Strasberg