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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2021 04 14 Court File No.: Guelph 19/1796

Between:

Her Majesty the Queen

— AND —

R.H.

Before: Justice M.K. WENDL

Heard on: March 8, 10 & 11, 2021 Reasons for Decision released on: April 14, 2021

Counsel: M. Dolby........................................................................... Counsel for the Provincial Crown D. Doney.......................................................................................................... Counsel for R.H.

WENDL J.:

[1] This is an application by the Crown to introduce hearsay statements of the complainant, M.C., into trial. The accused, R.H., is charged with sexual interference, sexual assault and invitation to sexual touching in relation to M.C., his step-granddaughter. M.C. is now 6 years old. These allegations came to light when M.C. was 4.

[2] The Crown needs to introduce these statements since M.C. will not testify at trial and has no recollection of the incident.

[3] The Crown is applying to admit four sets of hearsay statements made by the complainant. The first statement was made to L.B., M.C.’s maternal grandmother in February 2019. I note here that R.H., the accused, is married to M.C.’s other or paternal grandmother. Back in February 2019, L.B. took M.C. out for dinner, while out at dinner M.C. uttered, according to L.B., “squishy, squishy your vagina”. L.B. then told M.C. that it was inappropriate to speak that way to which M.C. replied, “Papa R. in Mount Forrest makes me squishy, squishy his bum”. L.B. testified that she could not remember if M.C. used the word bum or vagina, however, L.C. clarified that M.C. sometimes used bum and vagina interchangeably. As well, when making this utterance M.C. grabbed at herself in the area of her vagina.

[4] L.B., after hearing these utterances, took M.C. to M.C.’s other grandfather, J.B. J.B and L.B. are the parents of M.C.’s mother. L.B. and J.B. are no longer together. At J.B.’s apartment, L.B. asked M.C. to repeat what she said to J.B. L.B. recorded what was said by M.C. When asked to repeat what she said at the restaurant, M.C. said, “squish my Papa’s gina who lives in mount forest”. L.B. then asked why R.H. did that, M.C. replied “because he tells me that”. This is the second utterance.

[5] The third utterance occurred around March 4th or 5th, 2019. M.C. said to her teacher’s assistant, A.K. “I need to tell you something”… “my mom said I could tell you this”…“My grampa from mount forest he told me that I could squish his bum and that it was ok”.

[6] Finally, the Crown seeks to introduce a video taped statement made by M.C. to J.M., a professionally trained interviewer of children who have suffered traumatic events. Initially, the Crown tried to introduce the statement via a 715 application. However, during the voir dire for that application M.C. testified that she had no recollection of speaking to J.M., attending to give the video statement nor does she remember the “squishing” incident, therefore the Crown abandoned the 715 application and chose to apply through the hearsay doctrine to introduce the video statement into evidence.

Law and Analysis

[7] The admissibility of hearsay is guided by the twin criteria of necessity and reliability. Necessity and reliability are established on a balance of probabilities. R. v. Khelawon, 2006 SCC 57, [2006] 2 SCR 787 at para. 47 and R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418 (Ont. C.A.), at para. 45. Dealing first with necessity, the Crown argues that the hearsay is necessary since M.C., who is now 6, has no recollection of the events.

(1) Necessity and child witnesses

[8] There is no presumption of necessity when an out-of-court statement is made by a child declarant, or any preference for receiving a child's evidence by way of an out-of-court statement rather than in-court testimony. R v. Robinson, 2004 CarswellOnt 3965 (ONCA).

[9] In Khan, the Supreme Court, in similar circumstances, stated that the necessity criterion must be interpreted as “reasonably necessary”. McLachlin J., as she was then, wrote that the necessity criterion would be met because of the inadmissibility of the child’s evidence or “sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve”. R v. Khan, [1990] 2 SCR 531. McLachlin J. also left open the possibility of other types of scenarios satisfying the necessity criterion.

[10] Later in F.W.J., McLachlin J. elaborated on her comments in Khan in relation the necessity criterion and child witnesses, stating: “the cases dealing with the out-of-court statements of children have, with a few exceptions, interpreted necessity as the equivalent of situations where the direct evidence of the witness is unavailable despite reasonable efforts to obtain it — what this Court in Khan, supra, referred to "reasonable necessity." R. v. F. (W.J.), [1999] 3 S.C.R. 569.

[11] She went on to note that that even in the absence of evidence being called the necessity criterion may be met when it is apparent from the circumstances of the case, for example, when a complainant is very young:

There is no absolute rule that evidence must be called on the issue of necessity. Where it is apparent from the circumstances before the trial judge that the child cannot give useful evidence, the judge may find out-of-court statements are "necessary" in the context of the rule, absent evidence. This may be the case where the child is very young. Thus this Court dismissed the appeal (, [1993] 1 S.C.R. 469 (S.C.C.)) from R. c. P. (J.) (1992), 74 C.C.C. (3d) 276 (Que. C.A.), where the Quebec Court of Appeal ruled, at p. 281, that out-of-court statements were admissible notwithstanding any extrinsic evidence on necessity:

... the test of necessity is met by the very fact of the young age of the child (I repeat, two years, three and one-half months at the time of the events, and three years, nine and a half months at the time of trial), which entails in the present case the impossibility for the child to testify effectively at this age ... on the facts that took place one and one-half years earlier. There is no need for "solid evidence" based on psychological assessments that the testimony in court might be traumatic for the child or harm the "child" here. In my view, it is self-evident, and in addition, the testimony could not be probative because of the time which has passed since the incident and given the nature of the circumstances of the event.

[12] In the end, in relation to the necessity criterion, this Court must determine whether direct evidence of M.C. is not forthcoming with reasonable effort. R. v. F. (W.J.), [1999] 3 S.C.R. 569 at 36.

[13] In the case at bar, the complainant was 4 years old when she made the statement. The initial utterance made to L.B was over 2 years ago and M.C. is now 6. I will also note that throughout the evidence from the witnesses in the voir dire, including L.B., J.B. and T.S. (T.S. is now in a relationship with L.B. and is known to the complainant as Papa T., as opposed to the accused who is known as Papa R.), all testified that these events were not discussed with M.C. as a result of advice received from the police. That the incidents and/or utterances were not discussed further with M.C., in addition to the accused’s age and the time elapsed since the incident, may have impacted on her ability to recall the evidence. M.C. testified on the voir dire for the 715 application, which the defence consented would apply as evidence on the necessity criterion for the hearsay application, that she had no recollection of the events.

[14] I find that given her young age at the time of reporting and her inability to currently recall, which must be a result of her age and time elapsed, the Crown has met their burden in relation to the necessity criterion for utterances 1-3. The statement made on video to J.M. which the Crown tried to introduce through a 715 application also meets necessity criterion. Perforce, the complainant’s inability to recollect the incident does not allow her to adopt her video statement. R. v. Wills, 2017 ONSC 6775 para 23.

[15] At this point I am conscious that if all four sets of utterances prove reliable, introducing all four sets of statement may no longer be necessary. The Court of Appeal in C.R. held that the trial judge erred in admitting four similar hearsay utterances made by the complainant. The Court found that once one of the statements was admitted it was no longer necessary to admit the three others. Therefore, I will revisit the issue of necessity based on which statements are sufficiently distinct after determining which statements are deemed sufficiently reliable to warrant admission. R. v. Mohamad, 2018 ONCA 966 at para 97.

(2) Threshold reliability

[16] The Supreme Court revisited the threshold reliability criterion in Bradshaw. Threshold reliability is concerned with the admissibility of evidence as opposed to ultimate reliability, which has to do with the extent to which the trier of fact relies, believes or ascribes weight to that evidence in the determining their verdict. Threshold reliability can be established through either procedural or substantive reliability, or a combination of both.

[17] Procedural reliability simply refers to substitutes for the traditional safeguard/procedures associated with testifying in court such as an oath and cross-examination. Adequate substitutes are in fact very similar to those procedures in court. They are a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination of the declarant, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial is usually required. R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R 865 at para 28.

[18] Substantive reliability basically refers to fact that the statement itself is inherently trustworthy. Substantive reliability is established when the statement "is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken.” R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R 865 at 31. To determine substantive reliability the Court must look to the circumstances in which the statement came about and any evidence that corroborates the statement.

[19] In assessing corroborative evidence at the threshold reliability stage, the focus of the enquiry must be on whether the corroborative evidence provides a rational basis to reject alternative explanations for the statement, other than the declarant's truthfulness or accuracy.

[20] The Supreme Court provided the following framework through corroborative evidence must be analysed:

1. identify the material aspects of the hearsay statement that are tendered for their truth;
2. identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

[21] For the purpose of this analysis, I will look at statements 1 and 2 together. The reason for this is that utterance number 1 was the catalyst for utterance number 2. Therefore, utterance 1 is a necessary circumstance for utterance 2 and analysing them separately would create an artificial barrier. Utterances 1 and 2 do not have the hallmarks of procedural reliability. No oath was sworn, no cross-examination took place, and the consequences of lying were not put to M.C. They were effectively spontaneous utterances similar to what occurred in Khan. As a result, for them to be admissible they must be shown to be substantively reliable on the balance of probabilities.

[22] M.C. told her grandmother, L.B., completely unprompted, “squishy, squishy, your vagina.” Then when L.B. told her that was an inappropriate way to talk she replied, “Papa R. in Mount Forrest makes me squishy, squishy his bum”. L.B. went on the clarify her evidence that M.C. uses bum and vagina interchangeably. Given that the first utterance was unprompted and emerged naturally it is a factor favouring reliability. R v. Khan, [1990] 2 SCR 531 at 39.

[23] When L.B. asked M.C. to repeat the first utterance to J.B., L.B. did jog the child’s memory only by asking her to repeat the part with the word that sounds like vagina. L.B. recorded then recorded utterance #2. Given what immediately preceded the recorded utterance (utterance #2), namely the spontaneous nature of utterance #1, L.B.’s attempt to jog M.C.’s memory by having the child specify which part of the conversation at the restaurant she wanted repeated does not detract from the original statement’s spontaneous nature. Also, when M.C. was asked why she did that and responded, “because he tells me that”, the question was done in a non-leading fashion and was open ended. I agree with the Crown that being asked to grab an adult male’s genitals or “squish my Papa’s gina who lives in mount forest”… “because he tells me that” is not in the ordinary purview of a 4-year-old child. R v. Khan, [1990] 2 SCR 531. This lends factor itself toward reliability as well.

[24] The Crown also tendered two pieces of potentially corroborative evidence. The first one is a statement by the accused himself. In a conversation with his stepdaughter, he admitted that he hurt M.C., that it happened over the clothes and she would not remember because of her age. He also texted her and stated “I totally understand and I going to live with this devastation to my heart and sole [sic] knowing I have hurt everyone that I have ever really loved. I will never forget what I have done. I can only pray that time will heal all of you.”

[25] The second piece of corroborative evidence is an incident that occurred with L.B.’s partner, T.S. Sometime in December 2018 or January 2019. Around then, M.C. was at L.B. and T.S.’s residence, T.S. was sitting in his chair when M.C. deliberately approached him and deliberately pressed down in his penis area. T.S. rebuked her and he remarked that she looked shocked as though her behaviour would not warrant such a rebuke.

[26] Again, substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant's truthfulness or accuracy. In accordance with framework outlined in Bradshaw the first step is to look at the purpose for which the statement is adduced. Here, the purpose of inducing the hearsay statements by M.C. is to prove that R.H. asked M.C. to touch him in the area of his genitals. The second step is to determine what dangers might arise by the introduction of the statement. Here, as with Khan, the danger would be misperception, such as this being an unintentional act or an act that M.C. did on her own, lying on the part M.C and the inability to cross-examine her. The third step has overlap with second step, specifically the alternative explanations for M.C.’s utterances: misperception, lying or even imagination.

[27] The fourth step requires an analysis of the corroborative evidence to rule out the dangers and potential alternative explanations, on the balance of probabilities, and establish, also on the on the balance on probabilities, that the declarant was being truthful. Here, while not detailing exactly what took place, the admission by R.H. confirms that something occurred, that it occurred over the clothes, that he hurt M.C. and that he will never forget what he has done. This admission, while, again, not detailing what exactly occurred, confirms on a balance of probabilities that the incident was intentional and illicit. The fact that it was intentional is supported by the statement “I will never forget what I have done.” The fact that it was illicit is supported by the statements that he hurt M.C., and that he hoped she would forget because she was so young and that he was trying to mitigate his behaviour by saying it happened over the clothes. It also supports the rejection of potential alternative explanations that M.C. invented this or that she mischaracterized the situation.

[28] The second instance, striking T.S, L.B.’s current partner, in the groin is also supportive that something similar occurred to R.H. On its own, however it does not support the proposition that R.H. asked her to do that, since M.C. did it on her own to Papa T or T.S. It is only in the context of the admissions by R.H., the accused, as analyzed in the paragraph above, that it has potential corroborative value in so far that it can eliminate other possible explanation such as M.C. did it on her own to R.H. and supports that R.H. asked her to touch his groin area. As such, I find that this instance adds very little to the analysis, since veritably it is R.H.’s admission that gives it value.

[29] When looking at the circumstances of utterances 1 and 2, how they came about and their subject matter along with the corroborative admissions by R.H. I find utterances 1 and 2 admissible on a balance of probabilities.

[30] In relation to the third utterance, my main concern is that this is simply a repetition of utterances 1 and 2. The circumstances of this utterance I find to be far less spontaneous. The statement to A.K. “I need to tell you something”… “my mom said I could tell you this”…“My grampa from mount forest he told me that I could squish his bum and that it was ok” is effectively the same one made to L.B. “Papa R. in Mount Forrest makes me squishy, squishy his bum”. As a result, I find the statement to A.K. no longer necessary since it is simply a repetition of what was said to L.B. in circumstances that were less natural and spontaneous.

[31] The video recorded statement to J.M. has some of the hallmarks of procedural reliability. A videotape was made of the statement. The interviewer, J.M., asked M.C. to promise to tell the truth, to correct J.M. if she said anything wrong and confirmed with her that it was ok to say “I don’t know” if she did not know the answer. The main procedural concern here is with the lack of ability to cross-examine.

[32] In the interview, the questions appear to build upon each other in a non-leading fashion. First, J.M established that squishing occurred by simply inviting her to talk about squishing and asking her if anything would help her to talk about squishing. Once that was established, J.M. asked where it occurred, to which M.C. replied the bedroom. However, for the most part during the video, M.C. replied that she did not want to talk about squishing.

[33] After spending some time encouraging M.C. to disclose more of what occurred the following exchange took place:

J.M. :So I need to know if you, you’ve ever had a touch… M.C.: I need my pop. J.M.: …on this part of your body? M.C: No, I need (unintelligible) J.M: The part of your body that you go to the potty, either the front or the back. M.C: The front. J.M.: The front. Yeah, who touches you on, on your front part? M.C.: No, I touch my grandpa on the front. J.M.: Okay, on the front. And what do you touch his front with? M.C: My hand.

[34] What is important about this exchange is that when J.M. asks M.C. who touches her on the front, M.C. corrects J.M. and states that no one touches her, but she touches grandpa on the front.

[35] Further on in the statement, M.C. indicates that this touching occurred on top of the clothes. M.C. also clarifies that the “front” is called a noodle and the private part.

[36] In addition to some procedural reliability, namely the promise to tell truth and the fact that M.C. corrected J.M. as she was instructed to, there is also substantive reliability based on the corroborative evidence of the admission by R.H as analysed above. Moreover, there is one additional and significant aspect in the corroborative evidence that does not come into play with utterances 1 and 2. In the video recorded statement, M.C. states that it only occurred over the clothes. This particular aspect of the incident is confirmed by R.H. himself.

[37] In my view the video recorded statement offers significant substantive reliability in addition to some of the hallmarks of procedural reliability to warrant admission. It is also my view that the statement is sufficiently distinct to warrant admission. First, it adds to utterances 1 and 2 by stating the touch was in the front; second, M.C. confirms it occurred over the clothes; third, she adds that it occurred in the bedroom; and fourth, elaborates that the front part is the “noodle” or “private part.”

Conclusion

[38] Utterances 1 and 2 along with the video recorded statement to J.M. are admitted to trial.

Released: April 14th, 2021 Signed: Justice M.K. Wendl