ONTARIO COURT OF JUSTICE
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
K.G.
RULING ON CROWN HEARSAY APPLICATION
Evidence Heard: January 12,13, 2025.
Delivered: February 3, 2026
Mr. David Levy ...................................................................... counsel for the Crown/applicant
Mr. Jeffrey Fisher .......................................................................... for the accused/respondent
WARNING
A non-publication order has been issued in this case under
s 486.4(1) of the Criminal Code prohibiting publication of any information that could identify the complainant.
KENKEL J.:
Introduction
1Ms. K.G. is charged with three counts of sexual assault and three counts of invitation to sexual touching all in relation to one complainant. The charges allege offences from 1985 to 1992.
2The complainant gave a video statement to police, but tragically he died prior to trial. The Crown applies to have his video statement entered into evidence under the principled exception to the hearsay rule.
Hearsay
3I agree with both parties that the video statement is properly characterized as “hearsay” even though it is not tendered through the familiar mechanism of a witness repeating what they heard someone else say. While the term “hearsay” reflects its most common form, the doctrine is not confined to that context.
4The essential feature defining hearsay is that evidence is being adduced to prove the truth of its contents where there is no opportunity to cross-examine the declarant or source of that evidence – R v Khelawon, 2006 SCC 57 at paras 35,58. The “hearsay” analysis applies to all such evidence, even in cases such as this one where the statement is a video recording of the original witness.
5Hearsay is presumptively inadmissible – Khelawon at para 59. The Crown applies for admission of the complainant’s video statement under the principled exception to the hearsay rule which requires proof on the balance of probabilities that it is necessary to the truth-seeking function of the trial to admit the evidence, and that the statement is sufficiently reliable to overcome the dangers arising from the lack of cross-examination.
Relevance, Necessity, Threshold Reliability
6The proposed evidence is central to the Crown’s case and relevant. Reception without cross-examination is necessary given that the witness is now deceased.
7Admissibility under the principled exception considers “threshold admissibility” to assess whether the evidence is sufficiently reliable to be considered by the trier of fact. The court does not try to determine the ultimate reliability or weight that might be given to that evidence at trial.
8“Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” – R v Bradshaw, 2017 SCC 35 at para 26, Khelawon at para 49.
9The threshold reliability of the proposed evidence can be demonstrated in two ways. First, the Crown can prove that the circumstances of the taking of the statement provide sufficient trust in the truth and accuracy of the statement that it should be admissible regardless of its hearsay form – Khelawon at para 61. (procedural reliability) Second, the Crown can prove there is sufficient evidence to show that the statement is inherently trustworthy (substantive reliability).
10Procedural and substantive reliability are not mutually exclusive. Factors relevant to one may complement the other – R v Lako, 2025 ONCA 284 at para 50. The overall threshold reliability standard “always remains high” – Lako at para 50.
Procedural Reliability
11In R v Bradshaw at para 28 the Supreme Court listed several circumstances that have been considered substitutes for testing the truth and accuracy of a statement at trial:
A video recording of the statement
The administration of an oath
A warning about the consequences of lying
Prior cross-examination at a preliminary hearing or other proceeding
The substitutes “must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement”.
12In this case the statement at issue was recorded on video. It was a formal statement to a police officer, but there was no administration of an oath, no promise to tell the truth. There was no warning about the consequences of lying. The complainant was never cross-examined in any proceeding.
13The procedural indicia of reliability are minimal. The Crown concedes that threshold reliability could not be established on this basis.
Substantive Reliability
14The Crown seeks to prove that there are sufficient circumstantial or evidentiary guarantees in this case to show that the statement is inherently trustworthy.
15Substantive reliability is concerned with whether the circumstances of the statement, including any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy – Bradshaw at para 40. The standard is a high one, but not to the point of absolute certainty. The Crown must prove that the statement is so reliable that cross-examination of the declarant would “add little if anything to the process” – R v Charles, 2024 SCC 29 at para 47.
16Staff Sgt. Atkins confirmed in cross-examination that the complainant in this case was himself charged with an unrelated sexual assault by the York Regional Police three weeks before he made this statement. The defence submits that the timing would have given rise to questions in cross-examination about whether the complainant had a possible motive to cast himself as a victim rather than perpetrator by making this statement. I agree with the defence that such a motive is relevant when determining threshold reliability – Khelawon at para 53.
17At the outset of the interview the complainant stated that he suffers from mental illness. He was “institutionalized” five weeks before he made the statement because of a suicide attempt. There was no discussion during the interview to determine the state of his mental health at the time.
18The complainant’s demeanor during the statement also caused the observing officer Staff Sgt. Atkins to wonder whether the complainant was under the influence of drugs. The complainant mentioned his history of drug addiction during the statement, but his sobriety at the time was not determined.
19I agree with the defence that there are aspects of the complainant’s statement that seem inherently implausible. He stated that his sexual relationship with KG as a young person lasted “years” when she only babysat for that family for one summer. He said his relationship with KG ended when he slept over at a friend’s house and the boy’s mother came into the bedroom at night and performed oral sex on him. He said that started a sexual relationship with his friend’s mother.
20In this application the Crown submits that the lack of procedural reliability and the substantive concerns identified are addressed by corroborating evidence.
Corroborative Evidence
21Having identified the lack of procedural indicia of reliability, and further substantive hearsay dangers that arise in this case, the final step is to determine whether external corroborative evidence rules out alternative explanations for the statement to the point where the only remaining likely explanation is the declarant’s truthfulness – Bradshaw at para 57.
22It is the combined effect of the corroborative evidence and the other circumstances of the case that must be considered. The Crown must show a connection between the corroborative evidence and the allegations to be proved. Evidence that confirms one material aspect of a statement is not necessarily admissible to establish the statement’s reliability with respect to its other material aspects – Charles at para 56.
23The Crown relies on the evidence of the complainant’s two siblings to corroborate his statement with respect to alleged incidents when they were children. The Crown relies on the accused’s statement to police as corroborative of the complainant’s statement alleging they had sex when he was “14 or 15” and in high school.
24Much of what the complainant said about the daily routine the summer KG babysat for the family was inconsistent with his older brother’s recollection. Neither sibling supported the complainant’s assertion that KG continued babysitting into the school year. Neither sibling remembered being encouraged by KG to engage in sexual acts while they were naked, KG encouraging the complainant and his brother to have sex with their sister, or KG trying to get the older brother to have sex with her.
25The older brother testified on the voir dire about observing sexual touching on a couch. His evidence was not consistent with the complainant’s description of the incident. It was also internally inconsistent with the statement he provided to the police in which he never said he saw sexual touching on a couch.
26With respect to a second alleged incident in a bathroom, the older brother’s evidence in examination-in-chief was closer to the complainant’s, but in cross-examination the older brother admitted he actually didn’t see anyone on the floor in the bathroom as he had said in examination-in-chief. Describing the same incident, his younger sister said the older brother wasn’t even there at the time.
27The complainant’s sister was the youngest sibling. She candidly said several times that she doesn’t remember much from that period. The one specific incident she did remember involved a locked bathroom door when she thought the complainant and KG were inside. She didn’t remember why she thought that. Her oldest brother was playing outside when that happened. Her evidence does little to support the complainant’s statement and is inconsistent with her oldest brother’s evidence.
28Both siblings confirmed that the complainant told them about his allegations when they were adults. They discussed it. His sister explained that some of the complainant’s statements “sparked” memories for her from the same period. Otherwise, she had little memory of her own about the details of that time. Both siblings wanted to honour and support their deceased brother, but it’s not plain what actual recollections either has of that time that are independent of their mutual discussions.
29The evidence of the complainant’s siblings is internally inconsistent and does not corroborate the complainant’s statement on most of the details that are relevant to the allegations.
30The final potential corroborating evidence is the statement of the accused to the police. She acknowledged that she babysat the siblings one summer when they were young. She denied making any sexual advances to the complainant.
31The complainant also described a further incident when he was 14 or 15 years old which was past the minimum age of consent at the time. He said that he bumped into KG and they “started doing it again”. The accused told police that they did meet up one time on a golf course in Aurora when the complainant was in high school. They did have sex, but it was forced by the complainant. It wasn’t consensual. Corroborating one fact that they had sex provides no support for the admissibility of the complainant’s statement to prove charges of sexual assault by KG on the complainant. KG’s statement plainly says it was she who was the victim of a sexual assault.
Conclusion
32This is not a case where cross-examination would add little to the process. It’s a case where cross-examination at trial would be essential.
33Considering the hearsay dangers identified, I find that to admit this statement without that procedural safeguard would impair the accused’s right to make full answer and defence and could result in an unfair trial.
34The application is dismissed.
Delivered: February 3, 2026.
Justice Joseph F. Kenkel