Court File and Parties

Court File No.: 1311-998-15-151410, 1311-998-15-151525

Date: October 6, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Bruce William Letford

Before: Justice Michael G. March

Heard on: September 20, 2016

Reasons for Judgment released on: October 6, 2016

Counsel:

Jodi Whyte — counsel for the Crown

John Bonn — counsel for the accused

Judgment

March, J.:

Introduction

[1] Bruce Letford stands charged that between October 31st, 2012 and October 7th, 2015, he committed a sexual assault upon J.S. contrary to s. 271 of the Criminal Code. J.S. did not testify. Quite appropriately, the defence conceded necessity, that is to say, given J.S.'s advanced age and frail health, she should not be required to attend court. At the time her statements were taken, J.S. was ninety-three years old. At the commencement of trial, she was experiencing a host of health problems including breast cancer and atrial fibrillation.

[2] This matter thus proceeded by way of a blended voir dire/trial on September 20th, 2016.

Overview

[3] The critical issue for the Crown was the admissibility of 'out of court' statements made by J.S. to Ms. Titley (or at least in Ms. Titley's presence) on October 5th and 6th, 2015, and a videotaped statement given by J.S. to Constable Ashley on October 7th, 2015. Ms. Titley is the Assistant Director of Care at the Belmont Long Term Care Facility [Belmont] where J.S. resided at all material times. Constable Ashley of the Belleville Police Service was the detective called in to investigate.

[4] Dealing with the statements given on October 5th and 6th, 2015 to or in Ms. Titley's presence, it is clear that Ms. Titley did make notes, but she acknowledged her notes were not a verbatim recording of everything J.S. said. The notes were nonetheless contemporaneously taken. They attempted to capture as accurately as possible what Ms. S. recounted. Ms. Titley was doing her job acting on a complaint that had originally been made to a Ms. Moon. Ms. Titley followed Ministry policies and procedures. Ms. Titley was doing her job well.

[5] Obviously, the statements she received from J.S. were not taken under oath, nor were they video recorded. There is an absence of evidence on whether it was brought home to J.S. that what she was about to say to the employees at Belmont was extremely important.

[6] The warnings and cautions on the need to be truthful and accurate were provided on October 7th, 2015, when Constable Ashley visited Belmont to interview J.S. Her statement on that occasion was video recorded. It was taken under oath as well. Her demeanour, while the questions from Constable Ashley were put to her, was captured.

[7] No evidence was led with respect to any motive on the part of J.S. to fabricate or lie.

Issue - The Test for Admission of an 'Out of Court' Statement on the Reliability Criterion

[8] The test for the admission into evidence of 'out of court' statements on the 'reliability' criterion is not whether the statements are true, rather the test is whether the hearsay statement(s) exhibit sufficient indicia of reliability, so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. So long as it can be assessed and accepted by a reasonable trier of fact, then the evidence should be admitted. (See R. v. Youvarajah (2013) SCC 41.)

[9] Factors considered on the admissibility inquiry cannot be categorized in terms of threshold and ultimate reliability. (See R. v. Khelawon (2006) SCC 57 at para 4.) All relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. On a case by case basis, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility. The trial judge must remain cognizant of the limited role he or she plays in determining admissibility. The question of ultimate reliability cannot be pre-determined on the admissibility voir dire. (Khelawon at para 93.)

Crown Argument

[10] The statements made by the complainant on October 5th and 6th, 2015 were reduced to writing by Ms. Titley, the Crown's first witness called on the blended voir dire/trial, and are attached hereto to these reasons as Schedules "A" and "B" respectively. The videotaped statement given by the complainant to Constable Ashley was transcribed and is attached hereto as Schedule "C".

[11] The Crown seeks to introduce these statements arguing the test for reliability has been met. The Crown argues that the complainant was able to identify her assailant as "Bruce", the only Personal Support Worker (P.S.W.) who worked at Belmont with that name. The work schedules confirm that the accused worked on Tuesdays and Fridays, such that an opportunity existed to commit the alleged sexual assault on the days the complainant said it occurred. Further, the complainant was consistent in the language she used to describe the incidents as being, "unpleasant" and "rough". In a nutshell, the Crown emphasized that the complainant was clear in her statements that:

1. Bruce did it;
2. It happened during both times (Tuesdays and Fridays);
3. He put his fingers in her;
4. He was rough in doing so.

Further, when asked by Constable Ashley about incidents where the accused swore at her, although at times tangential, the complainant was capable of returning to the point of the question.

[12] The Crown pointed me to paragraphs 26 to 28 of R. v. Taylor (2012) ONCA 809, where Justice Rosenberg speaking for the majority of the Court of Appeal for Ontario aptly commented:

"….threshold reliability may be demonstrated because of the circumstances in which it came about or because in the circumstances its truth and accuracy can nonetheless be sufficiently tested…..However, these two different grounds are not watertight compartments."

Defence Submissions

[13] The defence argues that R. v. Khelawon (2006) SCC 57 is the governing authority. The defence points out that the oath was somewhat reluctantly taken by the complainant at the outset of her interview on October 7th, 2015 conducted by Constable Ashley. Additionally, there was confusion exhibited by the complainant when asked about the length of time she had lived at Belmont (Schedule "C", p. 3, ln. 23 and p.4, ln. 13). When asked about how long the incidents had been going on for, she responded in a non-sequitur fashion, "Well…I was going to a Christian school." (Schedule "C", p. 10, ln. 22). When asked if she knew what the date was today (i.e. October 7th), she answered off topic…."I went away last week….to my daughter's …..with my dad." When questioned about what year it is this year, the complainant responded, "24, isn't it?" Constable Ashley attempted to clarify her answer. Again, she appears to have confirmed her belief it was 2024. (Schedule "C" p. 15, lns.11-13). When Constable Ashley followed up with a question about the address of the building where the complainant was right now, the complainant answered, "I'm…..I was staying at my grandmother's, but I don't know." (Schedule "C", p. 15, ln. 18).

[14] The defence strongly contended that there was no evidence of J.S.'s mental capacity at the material time of October 5th to October 7th, 2015. I take the defence argument to mean that the Crown did not call any expert evidence to show what the complainant's level of cognitive functioning would have been in October 2015, when she first came forward with her allegations.

Analysis

[15] I turn to an assessment of the circumstances of the making of the subject statements by the complainant. It would certainly appear as though they came as quite a surprise and a shock to the staff of Belmont. The staff acted appropriately on the complainant by following protocol and referring the matter to police within a period of 48 hours or so.

[16] I am guided by the reasoning of Rosenberg J. in R. v. Taylor (supra) and Charron, J. in R. v. Khelawon (supra) in assessing the statements made by the complainant on October 5th and 6th, 2015 to Belmont staff (i.e. Schedules A & B) and the statement given to police on October 7th, 2015 (i.e. Schedule "C"). The factors in respect of those statements which I have taken into consideration are as follows:

1. Were the statements taken under oath?
2. Would the trier of fact be able to observe the demeanour of the declarant at the time the statements were taken, via, for example, video recording?
3. Was the declarant warned of the consequences of not telling the truth?
4. Was there any motive on the part of the declarant to be dishonest?
5. Was the declarant accurately able to recall the events with specificity and detailed information?
6. Is there reason to believe the declarant was mistaken about the nature of the incident complained of?
7. Was the mental capacity of the declarant in any way diminished or distorted?
8. Is there any corroborating or independent evidence to confirm the reliability of the declarant's account of the incidents?
9. Was there an accurate record of the statement(s) kept?
10. Is the declarant available for contemporaneous cross-examination?
11. If the declarant is not available, is there an adequate substitute for contemporaneous cross-examination?

[17] Each factor is not to be attributed equal weight. No one factor is to be attributed inherently greater weight than the others. Indeed, depending on the circumstances of the particular case, one factor may take on an overriding importance, which will tip the scale either in favour of admissibility, or counter to its reception into evidence. Again, a 'case by case' approach must be followed.

[18] In assessing the question of reliability, I must start from the premise that hearsay evidence is presumptively inadmissible. My function as the trial judge is to guard against the admission of hearsay evidence, the reliability of which is neither apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the trier of fact. The accused's inability to test the evidence may impact on trial fairness. If it does, it can take on a constitutional dimension under s. 7 of the Canadian Charter of Rights and Freedoms.

[19] An 'out of court' statement will be hearsay when:

a. It is adduced to prove the truth of its contents, and b. There is no opportunity for contemporaneous cross-examination of the declarant.

[20] One must focus during the admissibility inquiry on the defining features of hearsay. The absence of an opportunity to contemporaneously cross-examine the declarant immediately brings into focus the dangers of admitting hearsay evidence.

The October 5th, 2015 Statement by J.S. to Barbara Titley

[21] During the morning of Monday, October 5th, 2015, a chart nurse, Dawn Davidson, came to speak to Ms. Titley about a comment, presumably left on J.S.'s chart by another Belmont employee, Jen Moon. The note was of concern to Ms. Titley.

[22] After breakfast, Ms. Titley talked to J.S. in private in the lounge. Ms. Titley kept notes (Schedule "A") of the conversation she had with J.S.

[23] Turning to the factors for consideration on the admissibility inquiry, it is clear J.S.'s statement the morning of October 5th, 2015 to Ms. Titley was not taken under oath. It was not recorded in any way to capture J.S.'s demeanour. J.S. was not warned of any consequences of not telling Ms. Titley the truth. There is no evidence of a motive on the part of J.S. to be dishonest. J.S. appears to have been able to recall the events of concern with specificity and detail. There is little to suggest she was mistaken about the incident(s) complained of. Her mental capacity does not appear, on the evidence of Ms. Titley, to have been diminished or distorted that day. J.S.'s account of Bruce Letford being responsible for her baths is corroborated by the business records of Belmont, specifically, the Bathing Schedule for J.S., filed as Exhibit #2 on the voir dire/trial. The record is the handwritten notes Ms. Titley made during the question and answer session with J.S., although they are not verbatim. Of course, the declarant, J.S., is not available for cross-examination.

[24] In these circumstances, I cannot find that there was any adequate substitute for contemporaneous cross-examination. There was no means for the trier of fact to rationally evaluate the account being given by J.S. and reduced to writing, albeit as conscientiously as possible, by Ms. Titley. Ms. Titley's role in speaking to J.S. was no doubt to verify a serious complaint made to another staff member. Her focus was on whether there was a need to follow protocol and to take the matter to her superiors. Indeed, that is exactly what she did next when she spoke to, as Ms. Titley testified, her boss, the Director of Care, Melana Drummond. The established procedure was followed. The Ministry of Health and Long Term Care ['The Ministry"] was called, as was the police. What Ms. Titley knew for sure following her first conversation on October 5th, 2015 with J.S. is that J.S. no longer wanted Bruce Letford to play any role in bathing her.

The October 6th, 2015 Statement of J.S. to Melana Drummond in the Presence of Barbara Titley

[25] On October 6th, 2015 Ms. Titley met with J.S. along with her boss, Melana Drummond. To the best of Ms. Titley's recollection, she kept notes of the conversation Ms. Drummond had with J.S. Ms. Titley felt J.S. was very specific. Again, she made notes of the conversation J.S. had with Melana Drummond in a Question and Answer format. (See Schedule "B").

[26] When cross-examined about the bathing procedure, Ms. Titley confirmed that it is a two person job. The accepted procedure is for the P.S.W. to give a facecloth to the resident with soap, so they may wash themselves as they wish, and for the P.S.W. to wash the back and perineal area of the resident.

[27] In assessing the factors for consideration on the admissibility inquiry, it is clear the statement of October 6th, 2015 was not taken under oath. Nor was it recorded in any way to capture J.S.'s demeanour. Again, J.S. was not cautioned about any consequences of not telling Ms. Drummond the truth. J.S. appears to have been able to recall the events of concern with specificity and detail. There is little to suggest she was mistaken about the incident(s) she complained of. Her mental capacity, according to Ms. Titley's viva voice evidence and her written record (Schedule "C"), does not appear to have been diminished or distracted. The bath records corroborate that Bruce Letford worked at the times J.S. would have been bathed. The record of Ms. Drummond's conversation with J.S. is again not a verbatim recording, but is a 'best efforts' attempt by Ms. Titley to record what was said. Of course, nothing in the form of contemporaneous cross-examination took place during J.S.'s conversation with Ms. Drummond on October 6th, 2015.

[28] Upon careful reflection, I cannot conclude that this Question and Answer session between Ms. Drummond and J.S., as recorded by Ms. Titley, provides a means to rationally evaluate the account being given by J.S. on October 6th, 2015. The staff at Belmont were following established protocol, nothing more.

The Videotaped Statement of October 7th, 2015 Taken by Constable Ashley from J.S.

[29] Constable Ashley first became aware of the incidents involving J.S. on October 6th, 2015. He attended the Belmont facility on October 7th, 2015 at approximately 9:00 a.m. He met with staff members there. Ms. Drummond brought J.S. into a private room to speak to Constable Ashley. The officer had apparently asked what the best time to meet with J.S. would be, and accordingly, that is when he arrived. For five minutes or so following his introduction to J.S., Constable Ashley explained the process to J.S. (i.e. the reason for his attendance and the videotaping of the event), but there was no discussion of the allegations.

[30] At 9:40 a.m., the videotaped interview of Constable Ashley was commenced. He was gentle and kind with J.S. He treated her appropriately and professionally. The transcript of that interview is reflected in Schedule "C".

[31] Turning to the factors for consideration on the admissibility inquiry for this interview, it is true that Constable Ashley ensured J.S.'s statement was taken under oath. However, the solemnity of the occasion seems to have been somewhat under appreciated by J.S. She was concerned that she would "miss her place in dinner." Due to the videotaping, the trier of fact is able to observe J.S.'s demeanour. J.S. was warned of the consequences of not telling the truth. Again, there is no evidence of a motive on the part of J.S. to be dishonest. On this occasion, however, J.S. does not appear to have been able to recall the events of concern with specificity and detail during the first recorded and totally objective review of this Question and Answer session she underwent. When told she may have to testify in a criminal trial, and asked if she understood this, J.S. stated, "Well…I guess it [would] have to be yes. Would it?" (See Schedule "C", p. 3). The trier of law, on the admissibility inquiry, has to be concerned with this complacent, resigned answer. There is much to suggest J.S. was mistaken about the incidents complained of. J.S. believed she was only at Belmont for three weeks. Ms. Titley's evidence suggests J.S. was at Belmont for four years. There was also a pre-occupation with the accused, Bruce Letford, wanting to take her watch and bracelet. Clearly, this would be normal if he wished to bathe J.S. in the ordinary course of his duties as a P.S.W. Furthermore J.S. believed the accused was following her. "Nearly everywhere I go….to churches and everything…he shows up." There was no extrinsic evidence called by the Crown to show that any "following" had occurred. One would have expected that evidence to be available, if "following" had occurred. Equally, there was no evidence called by the Crown from Ken S., J.S.'s husband, who apparently spoke to Mr. Letford about his manner of bathing the complainant's private area.

[32] When asked about how the incidents were unpleasant, J.S. answered, "Well…when he would….just his hand….get his hand in my…ah….what do you call that? Inside….anyway. He was very rough." Constable Ashley follows up with, "Inside where?" He then suggests, "In your private parts?" and J.S. responds, "Yeah. Yeah". She then attributes to the accused, Mr. Letford, "Well…you….you…you should be clean on the outside…but on the inside too." Later, Constable Ashley leads J.S. with the question, "….when you say….he puts his fingers in your private part….you mean….he put his fingers in your vagina?" J.S. agrees and says, "Yeah". When asked if he was wearing a glove during these times, J.S. initially said she couldn't remember, but then quickly added, "He usually wears the rubber glove…um…you know…" Quite troubling is her response to the question put to her by police, "Do you remember….this is just recently?" She responds "Yeah". The officer then asks, "Or has this been going on for a while?" J.S. responds off topic, "Well…I….I was….was going to a Christian school…and ah….sometime…around Easter time….I came home."

[33] Clearly, J.S. appeared confused and was certainly not responding to some of the questions asked. The confusion continues when she is asked by the officer, "….do you know what….what…what date it is today?" Her answer is, "I think it's ….I went….I went away last week…to my daughter's…with my Dad." J.S.'s father can no longer be living. J.S. was ninety-three years of age when she gave her videotaped statement. Further, she believed on October 7th, 2015 that the year was 2024, and she did not know the address of the building where she was residing now, but that she had been staying at her grandmother's.

[34] Finally, when invited by the officer to tell him anything else he should know, J.S. added, "Only that he was very rough…in his….his examination." It would appear as though J.S. may have felt that the accused was conducting a medical procedure, but that possible misunderstanding on J.S.'s part was not pursued by Constable Ashley. In light of J.S.'s confusing, impossible and at times, non-sequitur responses as set out in the examples mentioned above, I have grave concerns that her mental capacity regarding the incidents may have been diminished or distorted. There is no independent evidence to confirm the reliability of J.S.'s account of what was being done to her by the accused at bath time (i.e. the rough insertion of his fingers into her vagina). There is the bathing schedule (Exhibit #2), but it is not truly in dispute that Mr. Letford, the accused, would have been responsible for bathing J.S. as part of his employment duties as a P.S.W. An accurate record of the October 7th, 2015 statements made by J.S. was kept via the video/audio recording done by police. J.S. was not available for contemporaneous cross-examination due to ill health. There is no adequate substitute under the prevailing circumstances of this case for contemporaneous cross-examination. The circumstance under which the October 7th, 2015 video came into being does not provide reasonable assurances of inherent reliability. J.S.'s unavailability for cross-examination poses significant limitations on the accused's ability to test the evidence of J.S., and in turn, on the ability of the trier of fact to properly assess the worth of J.S.'s evidence.

The Law

[35] The Taylor decision is readily distinguishable on its facts. As pointed out by Rosenberg J.A. at para. 28:

"There was nothing in the statement or the surrounding circumstances to show that the complainant was mistaken, or that her mental capacity was in any way diminished or distorted. In this respect, the trial judge had the assistance of the evidence of a psychologist. Dr. Lightfoot, the designated capacity assessor, who fortuitously had assessed the complainant only months before the statement was taken by the police."

[36] In essence, the ratio in Khelawon is more apt for application on the facts of this case. As stated by Charron J. at para 105:

"….the absence of any opportunity to cross-examine [the complainant] has a bearing on the question of reliability…The evidence is not admissible unless there is a sufficient substitute basis for testing the evidence or the contents of the statement are sufficiently trustworthy."

I find on an assessment of the totality of the evidence that there is no substitute basis for testing J.S.'s evidence, and her statements are not, in and of themselves, sufficiently trustworthy.

Conclusion

[37] For these reasons, I conclude that J.S.'s statements of October 5th, October 6th and October 7th, 2015 are inadmissible.

[38] On a parting note, I do not see why a resident of a long term care facility such as Belmont, where staff were seemingly following procedures and policies adopted by the Ministry, should have to speak up and ask not to be bathed by a person of the opposite sex. There should be greater privacy and basic human dignity afforded to residents such as J.S., who find themselves at the latter stages of life needing basic hygiene assistance. Although I appreciate the practical value in having an able bodied man to assist with lifting patients in and out of tubs and beds and the like, I agree with J.S., "….men should be looking after men, and not washing women's privates."

The Honourable Mr. Justice M. March