COURT OF APPEAL FOR ONTARIO DATE: 20220207 DOCKET: C67642
Lauwers, Coroza and Sossin JJ.A.
BETWEEN
Darlene Marie Paddy-Cannon, Rosemarie Ethel Christie and Sharon Geraldine Cannon Plaintiffs (Appellants)
and
The Attorney General of Canada and Katherine Cannon Defendants (Respondents)
Rosemarie Ethel Christie, acting in person Michael J. Prestell and Connor Barbeau, for the respondent Katherine Cannon Daniel Luxat, for the respondent the Attorney General of Canada
Heard: September 2, 2021 by video conference
On appeal from the judgment of Justice J. Christopher Corkery, dated September 30, 2019, with reasons reported at 2019 ONSC 5665.
Coroza J.A.:
A. OVERVIEW
[1] Darlene Marie Paddy-Cannon, Rosemarie Ethel Christie, and Sharon Geraldine Cannon, the appellants, are sisters. The respondent Katherine Cannon is their aunt. The appellants lived with Katherine and her family when they were children, during which time they allege that Katherine physically abused them. The allegations relate to events that began over fifty years ago, when the appellants were very young.
[2] The appellants sued Katherine for damages, alleging assault and battery. They also claimed damages against the Attorney General of Canada (“Canada”) for breaching its fiduciary duty to protect them from physical abuse by Katherine.
[3] In his reasons for judgment, the trial judge framed the issues raised by the appellants’ claim in the following way:
- Did Katherine Cannon physically abuse the appellants as they allege?
- If the answer to question one is yes, what damages are the appellants entitled to?
- If the answer to question one is yes, did Canada owe the appellants a fiduciary duty or a duty of care at common law and, if so, did they breach that duty?
[4] The trial judge found that the appellants were credible witnesses. However, he was not persuaded that the appellants were physically abused by Katherine. He concluded that the passage of several decades made it impossible for him to determine that the appellants’ evidence was reliable. He dismissed the claim. Since the claim against Canada was predicated on the allegation of physical abuse by Katherine, that claim was also dismissed.
[5] The appellants appeal, alleging several errors in the trial judge’s analysis.
[6] As I will explain below, I have concluded that the trial judge’s decision must be set aside. In my respectful view, the trial judge’s assessment of the appellants’ reliability reveals an error in principle. While I agree with the trial judge that the passage of time was a factor to be taken into account, in my view, he considered this factor as nearly determinative and without following the guidance set out by the Supreme Court of Canada in R. v. W. (R.), [1992] 2 S.C.R. 122, on how to assess the evidence of adults testifying to events of abuse that occurred when they were children.
B. BACKGROUND FACTS
(1) The Family Arrangement
[7] Sharon, Darlene, and Rosemarie were born in 1959, 1960, and 1963 respectively. The appellants are all members of the Thunderchild First Nation, an independent Cree First Nations band in Turtleford, Saskatchewan.
[8] The appellants’ parents separated in the early 1960s and their father brought them to Ontario, to his mother’s home, planning to have his mother raise the children. However, on or about May 1, 1965, she died.
[9] After their grandmother’s death, the appellants went to live with the respondent Katherine and her family. Katherine lived with her husband and their three children. Darlene arrived first, aged four and a half; a few months later, Rosemarie came, aged eighteen months old; and roughly three years later, Sharon joined, aged between eight and ten.
[10] Katherine was 81 years old at the time of trial. While raising her children, she worked as a custodian at the school her children attended. Katherine states that she is Algonquin and a Chief, but the appellants contest this and have asked this court to consider fresh evidence in the form of documents that they claim demonstrates that this assertion is false.
(2) The Assaults
[11] The appellants alleged that Katherine physically abused them while in her care and that this abuse was known to other members of the household. Katherine, her husband, and her children deny the allegations.
[12] To support their case, the three appellants testified as well as Sharon’s psychologist. The appellants testified to various forms of abuse.
(a) Darlene’s Allegations
[13] Darlene remembers Katherine beating her with her hands, a leather belt, and a teacher’s razor strap, specifically on her lower back, buttocks, and upper legs. According to Darlene, these beatings were a regular occurrence and in response to Katherine’s mood when Darlene, for example, spilled milk, did not come when called, or wore a boy’s army jacket at school once. Darlene witnessed her sister, Rosemarie, being beaten until she stopped breathing and her face turned blue. Darlene testified that Katherine’s daughters saw the beatings but never received the belt themselves. Darlene said that Katherine told her that if she reached out to anyone for help, she would kill them.
(b) Rosemarie’s Allegations
[14] Rosemarie remembers being hit frequently, also on the buttocks, and often with the belt. She testified that the three sisters were mostly beaten together and that the only people who saw it, other than the appellants, were Katherine’s daughters. Rosemarie does not remember every incident.
(c) Sharon’s Allegations
[15] Sharon remembers Katherine beating her sister Rosemarie with a razor strap. At trial, when asked to describe the beatings, Sharon could only recall a couple of incidents. She testified to having issues with her memories. Sharon recalled more of a feeling of constant fear of Katherine and general feelings of what she believes was PTSD living in that home. Sharon did recall being beaten in the kitchen, around the head and face, until blood was drawn. Sharon contacted the Children’s Aid Society (“CAS”), requesting to meet with someone while Katherine was not home, but did not get a chance to speak to the CAS worker without Katherine being present.
[16] The appellants testified to recollections of verbal abuse in addition to the physical abuse. The appellants eventually left Katherine’s home and, at some point after that, lived with their father in Peterborough for a period of time. The exact circumstances of their departure are contested, but at the time of leaving Katherine’s home, the appellants were teenagers.
(d) Katherine’s Evidence
[17] Six witnesses testified at trial on behalf of the respondent Katherine: herself, her husband, two of her daughters, her son-in-law, and her niece.
[18] Katherine denied the appellants’ allegations. The only physical discipline she used on the appellants and her own children was slapping their hands if they did something dangerous. She testified that Rosemarie used to have seizures, prompting Katherine, based on instructions she had received from medical professionals, to slap Rosemarie on the diaper and shake her. Katherine denied calling the appellants’ parents rude names and testified that, to her and her husband, it felt like the appellants were their daughters.
[19] Katherine’s daughters testified that the appellants were an integrated part of the family. They received the same treatment, the same gifts on birthdays and Christmas, travelled together for camping vacations, and suffered the same discipline, in particular, being spanked on the hands or being put in a “time out”. Both daughters testified that a belt or strap was never used.
[20] Katherine’s niece was close with the family, especially Rosemarie. She testified that she never saw any physical punishment by Katherine, though may have heard threats of physical punishment. Katherine’s brother-in-law testified to the same, that he could not recall Katherine physically hitting any of the children and never saw a belt or razor strap being used.
[21] Katherine’s two daughters recalled Rosemarie’s seizures, while Katherine’s husband and brother-in-law did not.
[22] The testimonies overall reveal very different factual accounts, and as the trial judge noted, both versions cannot be true.
(e) Canada
[23] Canada called no evidence at trial. The claim against Canada was predicated on the appellants’ allegation of physical abuse by their aunt, and Canada took no position on the appellants’ claim against Katherine.
[24] According to the appellants, Canada, through the federal department of Indian Affairs as it existed then, advised the CAS in Belleville in 1966 that it believed it would be in the best interests of the children to return them to their home reserve, but then Canada failed to manage this return or monitor their placement, breaching its fiduciary duty to protect the appellants by leaving them in the respondent Katherine’s care.
[25] Canada takes the position that it inquired with the appellants’ maternal relatives and advised the CAS that maternal relatives were indeed willing to care for them. Canada offered to arrange their travel to Saskatchewan. However, the CAS rejected this idea. According to the CAS, the appellants were not in need of protection and would not be apprehended and relocated to Saskatchewan. Canada argued that it did not have the legal authority to decide what was in the best interests of the appellants. That authority belonged to the provincial CAS in Belleville.
C. DECISION BELOW
[26] The trial judge’s reasons contain a lengthy summary of the evidence, a discussion of some of the relevant legal principles, and then a very brief conclusory assessment of the appellants’ evidence, comprised of no more than six paragraphs. The trial judge’s reasons include no analysis of the evidence of the respondent Katherine, except for a brief, conclusory mention that all the witnesses presented as credible.
[27] In his assessment of the evidence, the trial judge found that the appellants presented as credible and appeared to be sincere, truthful, and honest. He recognized that each experienced a traumatic and tragic childhood. However, he concluded that “[i]n this case, the passage of several decades make it impossible for me to determine that the [appellants’] evidence is reliable.” As I read his reasons, he found the appellants’ evidence unreliable for two primary reasons. First, their testimony often lacked specifics because all three appellants relied on generalizations, introducing their testimony with phrases such as “Sometimes”, “I believe”, and “As I recall”. Second, their testimony was inconsistent with each other’s as to details of the assaults, for example, whether they were primarily beaten individually or collectively.
D. POSITIONS OF THE PARTIES
(1) Appellants’ Position
[28] At the hearing, the panel was advised that Rosemarie planned to argue the appeal on behalf of all three appellants (and that neither Sharon nor Darlene would be appearing on video). We allowed Rosemarie to argue on behalf of all the appellants because we were satisfied that they shared common ground and were raising the same grounds of appeal. Collectively, these grounds of appeal amount to an overarching complaint about how the trial judge assessed their evidence.
(2) Katherine’s Position
[29] For her part, the respondent Katherine argues that the trial judge carefully considered all of the trial evidence and in finding that the appellants were not reliable, the trial judge relied on significant and material inconsistencies in the testimonies of the three appellants regarding how the beatings occurred, the number of them, whether the appellants were together or apart, and even whether certain beatings actually did occur. The respondent Katherine argues that in the absence of palpable and overriding error, the trial judge is owed deference.
(3) Canada’s Position
[30] The respondent Canada repeats the arguments made at trial. It submits that while there may have been an agreement in 1965 between Canada and Ontario regarding the provision of welfare services, that specific agreement concerned welfare services on a reserve. That is not the situation here – the Cannon home was not on reserve, just provincial land. Therefore, the provincial CAS had legal authority and Canada was not liable for the alleged assaults, if they, in fact, had occurred.
E. DISCUSSION
(1) Overview
[31] For the purposes of this appeal, I need only address the appellants’ submission that the trial judge improperly determined they were not reliable witnesses because of the passage of time. The appellants contend that the passage of time did not relieve the trial judge of his duty to assess the evidence especially in the context of beatings of the appellants as young children. In my view, this submission has substantial merit.
[32] I start with the observation that on appeal, I must keep in mind that there is a presumption that the trial judge correctly applied the law, particularly regarding the relationship between reliability and credibility, and that on a functional and contextual reading of trial reasons, the focus is whether the trial judge turned his mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at para. 82.
[33] It is undisputed that when adult witnesses testify about events that occurred when they were children, in general their evidence should be assessed by the criteria applicable to adult witnesses: W. (R.), at p. 134. However, inconsistencies and lack of memory in that testimony must be considered in the context of the age of the witness at the time of the events: W. (R.), at p. 134; see also R. v. Pindus, 2018 ONCA 55, at para. 37; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 34, leave to appeal refused, [2017] S.C.C.A. No. 274. I do not suggest that a trial judge is required to make explicit reference to these principles in reasons for judgment. However, I must be satisfied that the trial judge applied the appropriate principles.
[34] The trial judge’s very brief analysis in this case reveals that he was mindful that the events had occurred some time ago. Before turning to the appellants’ evidence, the trial judge mentioned that the allegations related to events that began over fifty years ago, when the appellants were very young.
[35] Respectfully, however, the trial judge’s approach to the appellants’ testimony reveals that he allowed the passage of time to overwhelm his analysis, and his criticisms of the appellants’ testimony indicate that he was not alive to the principles for assessing adult testimony of childhood abuse.
(2) The trial judge erred in his approach to the appellants’ testimony
[36] For ease of reference, I set out the trial judge’s analysis on the witnesses’ evidence in its entirety:
[219] All of the witnesses in this case presented as credible. The [appellants] in particular, like the complainant in R. v. Sanichar, appeared to be sincere, truthful, and honest. I have no difficulty in recognizing that they experienced traumatic and tragic childhoods. It may well be that much of the trauma is attributable to their experiences in the Cannon home. However, the trial was not an inquiry. The Court’s task is not to determine what happened in the Cannon home. The issue I must determine is whether the [appellants] have proven on a balance of probabilities the physical abuse that they allege occurred.
[220] In this case, the passage of several decades make it impossible for me to determine that the [appellants’] evidence is reliable. Considering all of the evidence, I am not persuaded that the physical abuse that they described actually occurred.
[221] Much of the evidence provided by the [appellants] was framed in generalizations and lacking in detail and specifics. Testimony often included sentences that were introduced with the words, “I believe…”, “As I recall…”, “Sometimes…”. It is understandable that there would be some uncertainty given the passage of so much time. It was difficult, however, to understand what parts of their evidence the [appellants] were actually certain of, if any.
[222] There were inconsistencies in the evidence of one [appellant] compared to another. For example, Rosemarie testified that the majority of time the [appellants] were beaten together. She had to go upstairs and get her sisters to come down to the kitchen, where they would line up and get the belt because of her. Darlene testified about several incidents she remembered when she was beaten alone. She said she would be beaten if she cried when Rosemarie was beaten. They were not collectively whipped every time, it depended on Katherine’s decision. Sharon described the two incidents she recalled of being beaten herself and one incident she saw four-year-old Rosie being beaten with a strap, but no incidents of being lined up for a collective beating.
[223] Rosemarie acknowledged that she does not remember all of the incidents she believed occurred. They come back in pieces. Sharon testified that she could swear that she didn’t get hit, but she has been told that’s inaccurate.
[224] There are too many uncertainties and too many inconsistencies in the evidence of the [appellants] for me to determine that it is reliable. [Emphasis added.]
[37] In his reasons, the trial judge referenced this court’s decision in R. v. Sanichar, 2012 ONCA 117, 280 C.C.C. (3d) 500, rev’d, 2013 SCC 4, [2013] 1 S.C.R. 54. In that case, Blair J.A. for the majority stated that in cases involving historic acts of sexual and physical abuse, particular scrutiny is called for in approaching the reliability of the evidence. The trier of fact must be mindful of serious inconsistencies in a witness’s account as well as the subtle influences that may have distorted memory over time: Sanichar, at paras. 38-39. The passage of time may influence the witness’s ability to observe, recall and recount the events at issue accurately: Sanichar, at para. 70, per Laskin J.A. (dissenting, but not on this point). The trial judge was clearly alive to this caution in Sanichar.
[38] Sanichar does not, however, instruct a trial judge to reject witness testimony as unreliable because time has passed. The trial judge concluded that “[i]n this case, the passage of several decades make it impossible for me to determine that the [appellants’] evidence is reliable.” His reasons reveal that he treated the passage of time as nearly determinative of the appellants’ unreliability. Respectfully, the passage of time cannot overwhelm a trier of fact’s assessment of the evidence, and I agree with the appellants’ submission that treating the passage of time as determinative in this case is akin to imposing a limitation period on the appellants’ claim. This is the wrong approach.
[39] I accept that Sanichar advises triers of fact to be mindful of time, and appropriately cautious, when assessing testimony of events from a distant past. However, as noted above, W. (R.) and other cases require that when assessing the testimony of adults trying to recount childhood memories, triers of fact must also be mindful of the context when addressing inconsistencies and a lack of memory.
[40] In W. (R.), McLachlin J. (as she then was) stated, at p. 134:
It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to “adult” or “child” standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [Emphasis added.]
[41] In Pindus, Laskin J.A. stated, at para. 37, that “when an adult witness gives evidence about events that took place in childhood, inconsistencies and lack of memory have to be considered in the context of the age of the witness at the time of the events.”
[42] In my view, the emphasis the trial judge placed on two aspects of the appellants’ testimony demonstrates that he was not alive to the context of the age of the appellants at the time of the events to which they were testifying.
[43] First, the trial judge criticized the appellants’ evidence as framed in generalizations and lacking in detail because they used the phrases “Sometimes”, “I believe”, and “As I recall”. However, the appellants were children when the assaults allegedly occurred. The mere fact that they prefaced many of their answers with these qualifications did not, by itself, mean that their evidence was unreliable. Indeed, it is hardly surprising that a witness who is testifying to things that occurred decades ago would use these words.
[44] Furthermore, it seems to me that the record does not support the trial judge’s finding that their evidence lacked detail. Without opining on the appellants’ reliability, several examples in their accounts reveal a high level of detail, suggesting the trial judge was overly critical of this evidence and overemphasized the passage of time.
[45] For example, Rosemarie was able to recall that she was first hit when she was about four or five and playing with a bottle of aspirin by filling it up with water. She recounted that she was grabbed by the shoulder, dragged by Katherine to the kitchen who started to hit her, and then taken to the living room where she was thrown on the couch. She also recounted other incidents where she was hit by a belt.
[46] Darlene, for example, was able to recall specific incidents that provoked Katherine to physical abuse, such as spilling milk or wearing a boy’s army jacket at school, and she testified that the first belt Katherine used was thirty-six inches long and about two and a half inches wide before she switched to using a razor strap. According to Darlene, this razor strap had been given to Katherine by Mrs. Quay, a schoolteacher.
[47] Sharon testified that while she had difficulty recalling events and had blocked out several memories in her mind, she did recall some very “vivid acts” of being beaten with a leather belt, razor strap, or by hand. Sharon also described one specific incident when she was struck in the head, the face, and the nose in the kitchen area by Katherine and one of Katherine’s daughters, Karen, and that she was positive that “blood was running” after the beating.
[48] Second, the trial judge did not point to any internal inconsistencies in the appellants’ individual accounts but noted that they were not consistent with each other’s descriptions of the mechanics of the beatings. He listed three inconsistencies that undermined their reliability: Rosemarie said they were beaten together; Darlene said she was beaten alone but would be beaten if she cried when Rosemarie was beaten; and Sharon recalled two incidents of being beaten herself and one incident when she saw Rosemarie being beaten with a strap.
[49] It is unclear why this inconsistency about being beaten collectively or individually disqualified the appellants’ testimony about events which occurred when they were all children. The trial judge did not explain how these contradictions detracted from the core of their story, and reviewing his reasons in light of the record, it remains unclear as to why he did not consider these inconsistencies as “peripheral”: see W. (R.), at p. 134.
[50] To be clear, it is not an error for a trial judge to take notice of specific phrases used by a witness and inconsistencies between accounts as part of their overall assessment of the testimony of a witness. It goes without saying that inconsistencies can be a significant factor in determining the credibility and reliability of that evidence. However, the analysis here is too sparse. These two examples clearly played a major role in the assessment of the evidence. The trial judge’s focus on these two examples appears out of line with how a trier of fact must approach adult testimony as to events from childhood.
[51] Respectfully, because the analysis is so brief, the passage of time treated as nearly determinative, and the appellants’ testimony criticized without sufficient explanation or acknowledgement of context, I conclude that the trial judge’s finding that the appellants were unreliable was arrived at by an error in principle. A new trial is warranted.
[52] There are several reasons why a new trial is the appropriate remedy. First, we do not have the advantage that the trial judge had of hearing these witnesses firsthand. Second, there are no specific findings as to the respondent Katherine’s witnesses, other than they were credible. Third, the trial judge’s reasons are practically silent as to the claim against Canada. Therefore, it is not in the interests of justice or feasible on a practical level to simply decide this case on the record filed.
[53] As set out above, Canada’s involvement in the appeal is intertwined with the specific finding that the appellants’ complaints had not been proven. During the oral hearing of this appeal, counsel for Canada agreed that it would have been preferable for the trial judge to have made findings on the viability of the claim against it, but since the parties in the court below asserted that the claim against Canada was entirely predicated on the finding that there was a tort, the trial judge did not address the issue of Canada’s liability.
[54] Since the trial judge did not make any findings on the issue of Canada’s liability, and the parties may end up taking the same approach in addressing the claim against Canada, in my view, the forum to litigate the claim against Canada is at a new trial.
F. DISPOSITION
[55] For these reasons, I would allow the appeal and order a new trial. In light of this conclusion, it is not necessary to address the appellants’ application for fresh evidence and the other grounds of appeal. However, I note that the respondent Katherine agrees that the trial judge in his reasons did misstate the evidence of Darlene concerning Rosemarie’s seizures and that he misidentified the perpetrator who allegedly molested Darlene as the brother of Darlene’s mother when it was actually alleged to be Katherine’s brother. There is no need to comment further on these errors because they are not germane to my decision to allow the appeal.
[56] The court will accept written costs submission of no more than five pages in length relating to the appeal costs and the trial costs beginning with the appellants. They should file their submissions within 15 days after the release of these reasons. The respondents Katherine and Canada shall have 15 days to respond.
Released: February 7, 2022 “P.L.” “S. Coroza J.A.” “I agree. P. Lauwers J.A.” “I agree. Sossin J.A.”
