Court File and Parties

COURT FILE NO.: CR-22-00000048-0000 DATE: 2024Aug02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – P.C.B. and M.B.O. Defendants

COUNSEL: H. Chiavetti and K. Andersen, for the Crown S. Ellacott, for the defendants

HEARD: May 6 and 15, 2024

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

Tranmer J.

DECISION ON VOIR DIRE

(Crown Khan Application as to Admissibility of Audio Recording of M.)

[1] The Crown called Ms. Marcheterre who was a CAS worker working with G. and M. following their apprehension and beginning in November 2019.

[2] The witness was called for the purpose of a voir dire to determine the admissibility of an audio recording that she made of M. telling her about an incident.

[3] This witness was the second to last witness to be called by the Crown at trial. Counsel agree that and consent to evidence from the trial proper is to be considered in adjudicating the voir dire. The audio recording occurred in June 2021, and although the witness could not recall the day, and she had not brought her file notes with her to testify, it is clear from the evidence of S.O. that this occurred on June 2, 2021.

[4] The audio recording was marked as a lettered exhibit on the voir dire.

The Evidence on the Khan Application

[5] The only evidence called viva voce on the voir dire was Ms. Marcheterre.

[6] Other evidence referred to on the voir dire included the following.

[7] In the Khan Application Crown Factum (Updated), the Crown refers to:

1. The affidavit of Detective Budgell who took over as the officer in charge of this investigation on May 1, 2021, which generally summarized the information obtained from the many witnesses since August 2019 when the accused M.B.O. was first arrested;
2. The Crown also states that the children made disclosure “in police interviews as well as to guardians and therapists”. The evidence is also that the children disclosed to relatives;
3. The Crown refers to the testimony of M. at trial that she did not remember being touched by her parents. This followed leave being granted to the Crown to ask leading questions of M. and to attempt to refresh her memory from her video and audio recorded statement that she made to police on July 29, 2021. There is evidence in the trial that M. made 2 prior video and audio recorded statements to police in which she makes no reference to sexual misconduct by her parents;
4. The Crown also submits in her written factum “that there is additional testimony before the court that attests to similar incidents occurring in the home, particularly as it relates to violence, many are described in a similar fashion by more than one child.” On this point, more than one child testified during the trial about physical violence. No other witness has testified about M. being touched or otherwise in a sexual fashion by her parents. The only other evidence in the trial of sexual abuse was that of G. about sexual abuse of herself by her parents. M.’s testimony at trial was that her parents, mostly her dad, struck her on the bottom with a wooden spoon more than once. She also testified that one time her father pushed her into a car while she was riding her bicycle.

[8] S.O. also testified at trial about the events that occurred on the day that the subject audio recording was made prior to Ms. Marcheterre attending and audio recording the interview of M..

Background facts

[9] The background facts are set out in my decision on the Crown 715.1 Application, R. v. P.C.B., 2024 ONSC 399, and also in the decision on the admissibility of observational evidence of S.O., R. v. P.C.B., 2024 ONSC 1777.

[10] M. was born April 20, 2014.

[11] M. was seven years of age on the date of the audio recording, June 2, 2021.

[12] The touching of which M. speaks in the audio recording must have occurred prior to her father’s arrest on August 22, 2019, and after they moved into their most recent home in March 2017. Therefore, the incident would have occurred between ages two years and five years.

[13] Two counts on the Indictment with respect to M. allege:

Count 1

1. P.C.B. and M.J.O., between the 1st day of January in the year 2018 and the 22nd day of August in the year 2019, at the Township of South Frontenac in the said East Region, did for a sexual purpose touch M., a person under the age of sixteen, contrary to Section 151 of the Criminal Code of Canada;

Count 14

14. M.B.O. on or about the 22nd day of August in the year 2019 at the Township of South Frontenac in the said East Region, did commit an assault on M., contrary to Section 266 of the Criminal Code of Canada;

Evidence of Ms. Marcheterre

[14] She was the only witness called viva voce on the voir dire.

[15] She testified that she received a telephone call from S.O., M.’s caregiver at the time, in the morning and was told that M. wanted to disclose something to her. S.O. testified that the witness attended at her house to interview M. on the same day that M. had disclosed to her in the morning. S.O. could not remember how much time had passed after M.’s disclosure and before the witness arrived. The evidence in the trial is that M. only disclosed the incident on this single occasion. The evidence is that S.O. was interviewed by Detective Budgell on this same day.

[16] Ms. Marcheterre testified that she had been trained and certified as to how to interview a child. She could not recall if she had had forensic interviewing training before or after this particular interview. She understood that she should ask open-ended questions, have the child do the talking and not ask leading questions. She understood that she should make the child feel comfortable. She testified that she knew the interview with M. could lead to criminal charges.

[17] She testified that she attended at S.O.’s house later in the day and spoke with M. in the backyard. S.O. was present at M.’s request. S.O. held M.’s hand during the interview. S.O. was positioned out of M.’s sight.

[18] There is no evidence as to what transpired with M. in the time frame between her disclosure to S.O. and the arrival of Ms. Marcheterre at the house, or how much time elapsed between the two events.

[19] The witness testified that she was at the house for about 10 minutes before she recorded the audio of the interview on her cell phone. She did not consider video recording the interview, and she did not video record it.

[20] She testified that they did not discuss before hand what M. was going to say, except to the effect that she was there to have a chat with M. about the information she had shared with S.O.. There was no talk about M.’s day. She testified that they went straight to the topic of the disclosure.

[21] The audio recording discloses that M. had already been talking when the recording began. M.’s first recorded words are “and they’ve been…”. The witness confirmed that M. was already speaking when the recording was started.

M.: And they’ve been talking my private partes. Ms. Marcheterre: Can you repeat that? I didn't hear what you said. M.: Um, I, my mom and dad, um, touch their private parts and mine. Ms. Marcheterre: Your, your parents touch your private part and their private parts and yours, is that what you're saying? M.: Yes. Ms. Marcheterre: Yes. Why did they do that? M.: I don’t know why. Ms. Marcheterre: You Don’t know why? Okay. And you told Auntie S. about that this morning? M.: Yes. Ms. Marcheterre: Yeah. Because you felt comfortable telling her? M.: Yes Ms. Marcheterre: Yeah . It's a big thing to say, Hey, sometimes it can be scary. M.: I wasn't that comfortable . Ms. Marcheterre: You what? You weren't that comfortable. S.O.: It was hard to say it, right? M.: Yeah . Ms. Marcheterre: Yeah . That's understandable . We don't usually like to talk about private things like that. Right. But it's important to talk about then. I'm very happy you're telling us about this . So when did that happen? Do you remember M.: That was a long time ago when I was living there . Ms. Marcheterre: When you were living there? M.: Yeah. Ms. Marcheterre: And where did it happened M.: At? Um, like at the house, in the bathroom . Ms. Marcheterre: At the house, in the bathroom? M.: Yeah . Ms. Marcheterre: And who was in the bathroom with you? M.: Me and my mom and dad . Ms. Marcheterre: You and your mom and dad . Okay. And do you remember how many time that happened? M.: No . Ms. Marcheterre: You don't remember? M.: No. Ms. Marcheterre: Okay. And did anything else like that happen as well? M.: Um, no . Ms. Marcheterre: No? And how did you feel when that happened? M.: scared . Ms. Marcheterre: You felt scared? Why did you feel scared? M.: Uh, they would touch my private part, what they did. Ms. Marcheterre: Okay. What, what did they touch you with? M.: Um, they didn't touch me with any, uh, they didn't touch me with anything . Just their hand. Ms. Marcheterre: They touch you with your hand? M.: Yeah. Ms. Marcheterre: Okay. And what did they do with their hand? M.: Touch me in the private part . Ms. Marcheterre: Okay. What kind of touching was it? M.: Um, I don't know. it was just touching . Ms. Marcheterre: It was just touching. Okay. And who was touching your private part again? M.: Mom and dad. Ms. Marcheterre: Mom and dad? Both of them? Yeah . Okay. Okay. Was there anything else that you remember from that? M.: Um, no .

[22] The witness testified that although M.’s voice sounds calm in the recording, her observation was that M. was nervous.

[23] She testified that she made the audio recording to help her make her notes afterwards.

[24] She testified that S.O. did not tell her that S.O. had recorded M.’s disclosure to her earlier that day. S.O. testified at trial that she did record it and that she gave that recording to the police. S.O.’s recording of what M. said to her that morning was not tendered as evidence before the court.

[25] Ms. Marcheterre agreed that some of her questions were leading in nature. It is unknown what question or questions she asked of M. before she started the recording, such that M. was already in midsentence or sentences when the recording begins. The witness agreed that ideally all of her questions should have been open-ended. With respect to the interjections by S.O. during the interview, the witness agreed that it would be best to keep S.O.’s role to a minimum.

[26] The witness confirmed that nothing was said to M. on that day about the importance of telling the truth. She testified that on a previous occasion, which would have been between early November 2019 and June 2, 2021, she spoke to M. about telling the truth. In re-examination, she testified that this was on one occasion when they were having a specific conversation about the three houses.

[27] She agreed with the proposition put to her by defence counsel that there were numerous previous times when the children had stated that they missed their parents and wanted to go home, but she added that this was her early on “until they were able to share what happened to them in their home”. In fact, she testified that “a child will always miss a parent despite abuse”.

[28] She confirmed that when M. stated in the interview that she was afraid her parents would come and steal her toys, she did not alleviate that concern, but rather spoke about alarms and locks which were in place at M.’s current house. She testified that even if she had done so, M. would still be afraid that the parents were going to come to the house.

[29] She was cross examined with respect to some of the contact logs that she authored. The hearsay nature of some of what she wrote is objected to by the Crown.

[30] She confirmed that there was an issue that G. made false allegations. G. made one about S. which necessitated an investigation. There was concern that she would make false allegations against a new nurse. Ms. Marcheterre spoke with S.O. about the risk of someone showing affection to G. because she would make false allegations.

[31] She authored Exhibit 23, dated March 24, 2020, concerning a telephone call with Aunt C. She wrote that the aunt mentioned that she had noticed that when the kids spend time with family members, they came back to her acting more difficult to handle and having some regression behaviours as well. She confirmed that the family members mentioned are S., the grandparents and the other siblings.

[32] Ms. Marcheterre testified that any change in the routine for the children caused regressions in their behaviour.

[33] Exhibit 26 is an email dated Tuesday, December 3, 2019 from aunt C.’s husband (M.S.) He writes that there are a number of indications that the children may have been sexually molested.

[34] Exhibit I, now 46, is Ms. Marcheterre’s report of her supervising the telephone call between the children and their parents on February 19, 2020. She was at aunt C.’s house. All three children tell their parents that they love them.

[35] Exhibit H, now 45, notes a telephone call with aunt C. following the telephone call the children had with their parents the night before. The aunt reports less compliance behaviour by the children.

[36] Exhibit 25 is her contact log dated February 25, 2020 after receiving an email from aunt C. about a visit with the parents the day before. Be. is said to speak favourably about his parents. G. is obsessed with the pictures and the frame given to her by her parents. Be. and M. woke up early in the morning wanting to play with their new toys. All three children wet the bed during the evening. The witness agreed that there was a genuine longing by the children in the first six months following their apprehension to return home, but she added that “but they also said the parents hurt them”.

[37] Exhibit 24 is her contact log noting a telephone call with aunt C. on February 27, 2020 about the children having a really rough night again the night before.

[38] Exhibit G, now 44, reports text messages with aunt C. and M.S. in which they report that the children demonstrate bad behaviour when they come back from a respite visit at aunt S.O.’s or aunt H’s houses. Ms. Marcheterre confirmed again that any change in the children’s routine resulted in regression behaviour.

[39] Exhibit L is an email, at least in part, of a report authored by Ms. Marcheterre. She agrees that she remembers that as of November 26, 2019, G. stated that she wished to see her mom and dad, and that she said that although the social worker said they were not safe at home, in fact, they were. G. asked many times when she will be able to return home. G. is older than Be. and M. who do not bring up the topic of their parents on their own. They both mentioned missing their mother.

[40] She confirmed that after the CAS investigation that led to the apprehension of the children of the accused was completed around March 6, 2020, she, as a child protection worker, accepted that it was not safe for the children to return home, and told that to the children.

[41] She confirmed that phone calls between the children and the parents were supervised and that the in-person visits were also supervised although not recorded.

The Evidence of S.O. at Trial

[42] The evidence of S.O. at trial included the following.

[43] She is the sister of M.B.O. She is 6 years older than he is. Her younger sister is C.O., aunt C., S.O. was born March 24, 1976.

The Disclosure of M.

1. S.O.’s Evidence in Chief

[44] In Chief, the evidence of S.O. about M.’s disclosure to her was brief. She testified that M. made only one disclosure, in June 2021. It was her daughter A. who saw something taking place between M and G.. A. went downstairs and told her mother, who then went upstairs and asked M. to get dressed. She was in the bathroom with G. to finish getting her ready for the day. As M. was going into her bedroom to get dressed and closing her door, M. said it was because she had learned it at home.

2. S.O.’s Evidence in Cross-Examination: Day 1

[45] She was asked about her statement to police that she made later in the day on which M. disclosed to her, in June 2021. She was asked whether she had heard her daughter A. say to M. words to the effect that, “M. we don’t do that, that’s inappropriate, you don’t show your private parts to anyone.” She responded that she would have to see what she told the police. She testified that if it was written, then that is what she said. She testified that she recalled going upstairs. She asked M. to get dressed. She testified that M. said she learned it from her mommy and daddy and that at that point, S.O. started to record everything on her cell phone. She said it is all on the recording. S.O. testified: “I recorded what she said and provided it to Valoris and the police.”

[46] She does not know all that was said by A. to M. because she was downstairs.

[47] She was specifically asked that when she asked M. why she had done that, M. responded that G. had told her to do it. S.O. responded, “If that’s what is written, I have no recording of it, it was three years ago.” She continued to respond by saying she did not recall M’s answer. She testified that she would need to read it. She said, “There were multiple factors but she absolutely did mention her parents, that is when I grabbed my cell phone to record it.”

[48] It was put to her that she asked M. whether she was sure that G. told her to do it to which M. responded that it was the neighbour’s kids. S.O. responded that it was quite possible that had occurred because G. and M. liked to blame others.

[49] She was asked whether as of her testifying today, she remembered M. saying firstly that it was G. and then that it was the neighbour’s kids. She responded that that sounded familiar, but she would need to read what she had said to the police. Then she said that the children blame each other or other people to avoid getting into trouble.

[50] At that point, defence counsel conceded that he was not a therapist, to which the witness responded, “I get that, I can tell.”

[51] In answer to a further question, she responded that the behaviour of the children blaming others if they perceived they were going to get into trouble started in June of 2021. She testified that it was “when the children first came into care with her.” On all of the evidence including hers, it was on May 1, 2020 when these children first came into her care.

[52] When asked further about the children blaming third parties, she responded that she could not say what was in the child’s head. She testified, “But I can say with certainty … this was a learnt behaviour.” This was the third time in her testimony that she volunteered that phrase.

[53] She acknowledged that up to the time that the children had been apprehended at the end of October 2019, she had not seen any sexualized behaviour, to which she added, “because I wasn’t looking for it. Sexual abuse, physical abuse wouldn’t have surprised me."

3. S.O.’s Evidence on Cross-Examination: Day 2

[54] In cross-examination on a second day, April 4, 2024, S.O. was further cross-examined on M.’s disclosure to her.

[55] M. disclosed to S.O. on the morning that the police officer was coming to interview S.O.

[56] She was further cross-examined on the statement that she gave to that officer on the same day of the disclosure.

[57] As I have stated, the evidence of Ms. Marcheterre is that she interviewed M. in the presence of S.O. in the afternoon of that same day and the audio recording made by her of what M. said to Ms. Marcheterre was tendered in the evidence, Ex. CMVD#1, on this voir dire.

[58] It is not clear whether the police interview of S.O. occurred before or after the interview of M. by Ms. Marcheterre.

[59] Counsel reviewed S.O.’s statement to the police with her in cross-examination in further detail. This evidence provided a much fuller and different account than what S.O. had testified to in her examination in chief. The witness responded a number of times to the effect that if that’s what the statement says then that’s what I said, “please don’t be condescending to me.”

[60] She acknowledged that she does not know the full extent of what A. said to M. when the two of them were upstairs other than hearing A. say, “we don’t do that. That’s not appropriate. You don’t show your private parts to anybody.” A. was not called as a witness at this trial.

[61] She acknowledged that there had been a prior occasion when M. had shown her private parts to two boys. M. did not blame her parents for doing that.

[62] S.O. confirmed that when she asked M. on this occasion, June 2, 2021, why she had done what she had done in front of A., M. responded initially that G. told her to do that. When S.O. asked M. whether she was sure that G. had told her to do that, M. tried to deflect it to the neighbour’s kids. S.O. then left M. in her bedroom.

[63] S.O. then went to assist G. with getting ready for the day.

[64] She told M. to get up and get dressed and ready for school.

[65] S.O. testified that as M. was going to close her bedroom door, M. said, “it’s because I learnt it from mom and dad.”

[66] S.O. said she went downstairs to get help from her husband with G. and then went back upstairs and into M.’s room. “I had her say whatever she had to say.”

[67] S.O. testified that at that point, she started to record on her cell phone the conversation that she then had with M.

[68] On this date, June 2, 2021, she assured the police officer who was interviewing her that she would provide him with that recording.

[69] That recording has not been adduced yet at trial and it has not been accounted for in the evidence.

[70] She told the police officer that she said to M. “you wanted to tell me something.” M. told her that her parents had “exposed their private parts to her,” that “they took their pants off.” M. pointed to her vagina.

[71] She told the officer that M. said that it was just her who was present and she asked M. that she must have been scared. She told M. that private parts are personal to each person.

[72] She told the officer that she said to M., “You’re going to have to tell Claudelle.”

[73] She told the officer that at that point, she stopped recording.

[74] There was no Khan application with respect to this evidence of S.O. or with respect to the recording that she promised to give to the police officer. It is unclear on the evidence whether that was an audio recording or both audio and video. Counsel agree that what S.O. says M. said to her is not proof of the truth of what M. said occurred, but is evidence of what she said to S.O. that morning.

[75] Clearly, this account by S.O. differs from what M. said in the audio recording tendered through Ms. Marcheterre.

[76] S.O. also told the police officer in that statement that both G. and M. were afraid that mommy and daddy were going to come and get them and were going to come and steal their things.

[77] The witness acknowledged that both G. and M. would defect blame on to other people to avoid getting into trouble. She testified: “This is true for any child. Many children blame other people.”

The Affidavit of Shane Budgell

[78] The affidavit of Shane Budgell mentions interviewing given by S.O. on June 2, 2021. There is no mention of S.O.’s account of M.’s disclosure that occurred that morning or of S.O.’s recording. He writes: June 3, 2021 received audio recording of M. from C.M.

[79] Det. Budgell remained the OIC since May 1, 2021, through the ongoing trial.

Legal Principles

[80] The applicable law is not in dispute.

[81] The court stated in R. v. P.G., 2012 ONCA 859, at. para. 25, that:

25 Hearsay evidence is presumptively inadmissible but may be admitted if it falls within one of the recognized hearsay exceptions or under the principled approach if the requirements of necessity and reliability are met: R. v. Khelawon 2006 SCC 57, [2006] 2 S.C.R. 787.

[82] In this case, Crown and defence agree that the necessity criteria is met. So do I.

[83] The issue on this Application concerns the reliability criteria.

[84] I have carefully considered the facts and principles stated in the cases cited by counsel.

[85] In R. v. Khan, [1990] 2 S.C.R. 531, the mother gave evidence of what her 3 ½ year old daughter said to her had happened in the doctor’s office approximately ½ hour earlier, and 15 minutes after they had left the doctor’s office.

[86] The Court noted:

23 Lord Pearce's four tests may be resumed in two general requirements: necessity and reliability. The child's statement to the mother in this case meets both these general requirements as well as the more specific tests. Necessity was present, other evidence of the event, as the trial judge found, being inadmissible. The situation was one where, to borrow Lord Pearce's phrase, it was difficult to obtain other evidence. The evidence also bore strong indicia of reliability. T. was disinterested, in the sense that her declaration was not made in favour of her interest. She made the declaration before any suggestion of litigation. And beyond doubt she possessed peculiar means of knowledge of the event of which she told her mother. Moreover, the evidence of a child of tender years on such matters may bear its own special stamp of reliability. As Robins J.A. stated in the Court of Appeal (at p. 210):

Where the declarant is a child of tender years and the alleged event involves a sexual offence, special considerations come into play in determining the admissibility of the child's statement. This is so because young children of the age with which we are concerned here are generally not adept at reasoned reflection or at fabricating tales of sexual perversion. They, manifestly, are unlikely to use their reflective powers to concoct a deliberate untruth, and particularly one about a sexual act which in all probability is beyond their ken.

[87] The Court set out the applicable principles at paras. 31-33.

31 The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

32 The next question should be whether the evidence is reliable. Many considerations, such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement, may be relevant on the issue of reliability. I would not wish to draw up a strict list of considerations for reliability or to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge.

33 In determining the admissibility of the evidence, the judge must have regard to the need to safeguard the interests of the accused. In most cases a right of cross-examination, such as that alluded to in Ares v. Venner, would not be available. If the child's direct evidence in chief is not admissible, it follows that his or her cross-examination would not be admissible either. Where trauma to the child is at issue, there would little point in sparing the child the need to testify in be chief only to have him or her grilled in cross-examination. While there may be cases where, as a condition of admission, the trial judge thinks it possible and fair in all the circumstances to permit cross-examination of the child as the condition of the reception of a hearsay statement, in most cases the concerns of the accused as to credibility will remain to be addressed by submissions as to the weight to be accorded to the evidence and submissions as to the quality of any corroborating evidence.

[88] The decision in Khan is found at paragraphs 35 and 36.

35 I conclude that hearsay evidence of a child's statement on crimes committed against the child should be received, provided that the guarantees of necessity and reliability are met, subject to such safeguards as the judge may consider necessary and subject always to considerations affecting the weight that should be accorded to such evidence. This does not make out-of-court statements by children generally admissible; in particular, the requirement of necessity will probably mean that in most cases children will still be called to give viva voce evidence.

36 I conclude that the mother's statement in the case at bar should have been received. It was necessary, the child's viva voce evidence having been rejected. It was also reliable. The child had no motive to falsify her story, which emerged naturally and without prompting. Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability. Finally, her statement was corroborated by real evidence. Having said this, I note that it may not be necessary to enter the statement on a new trial if the child's viva voce evidence can be received as suggested in the first part of my reasons.

[89] As I explain below, in the present case, the presence of the 4 factors found in Khan to support reliability are absent. There is evidence of a motive to lie or to please, and influence by others. There is no unique knowledge of sexual misconduct in the statement beyond the Ken of M. Her statement is preceded by questioning by S.O. Her statement is not corroborated by real evidence.

[90] In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, the complainant had died before trial. At issue was the admissibility of a video statement that he had given to police that was not under oath.

[91] The principles governing admissibility based on necessity and reliability are stated as follows:

2 As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into that person's perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth-seeking function. However, the extent to which hearsay evidence will present difficulties in assessing its worth obviously varies with the context. In some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding. Hence, over time a number of exceptions to the rule were created by the courts. Just as traditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must be founded the overarching principled exception to hearsay. When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the "threshold reliability" of the hearsay statement and leaves the ultimate determination of its worth to the fact finder.

3 The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance. Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon to decide the issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence. The failure to respect this distinction would not only result in the undue prolongation of admissibility hearings, it would distort the fact-finding process. In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judge's function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accused's inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown. As in all cases, the trial judge has the discretion to exclude admissible evidence where its prejudicial effect is out of proportion to its probative value.

[92] The Court summarized the reasons for its decision at para. 7:

7 In my view, Mr. Skupien's videotaped statement to the police was inadmissible. Although Mr. Skupien's death before the commencement of the trial made it necessary to resort to his evidence in this form, the statement was not sufficiently reliable to overcome the dangers it presented. To the contrary, they gave rise to a number of serious issues including: whether Mr. Skupien was mentally competent, whether he understood the consequences of making his statement, whether he was influenced in making the allegations by a disgruntled employee who had been fired by Mr. Khelawon, whether his statement was motivated by a general dissatisfaction about the management of the home, and whether his injuries were caused by a fall rather than the assault. In these circumstances, Mr. Skupien's unavailability for cross-examination posed significant limitations on the accused's ability to test the evidence and, in turn, on the trier of fact's ability to properly assess its worth. The statements made by other complainants posed even greater difficulties and could not be substantively admitted to assist in assessing the reliability of Mr. Skupien's allegations. In all the circumstances, particularly given that the Crown's case against Mr. Khelawon was founded on the hearsay statement, the admission of the evidence risked impairing the fairness of the trial and should not have been permitted. As Rosenberg J.A. aptly noted, the admission of the evidence under the principled approach to the hearsay rule is not the only way the evidence of witnesses who may not be available for trial may be preserved. Sections 709 to 714 of the Criminal Code, R.S.C. 1985, c. C-46, expressly contemplate this eventuality and provide a procedure for the taking of the evidence before a commissioner in the presence of the accused or his counsel thereby preserving both the evidence and the rights of the accused.

[93] The Court clearly defines hearsay at para. 35:

35 At the outset, it is important to determine what is and what is not hearsay. The difficulties in defining hearsay encountered by courts and learned authors have been canvassed before and need not be repeated here: see R. v. Abbey, [1982] 2 S.C.R. 24, at pp. 40-41, per Dickson J. It is sufficient to note, as this Court did in Starr, at para. 159, that the more recent definitions of hearsay are focussed on the central concern underlying the hearsay rule: the difficulty of testing the reliability of the declarant's assertion. See, for example, R. v. O'Brien, [1978] 1 S.C.R. 591, at pp. 593-94. Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose [page808] demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence. Because hearsay evidence comes in a different form, it raises particular concerns. The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves. The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant. I will deal with each defining feature in turn.

[94] At para. 40, the Court identifies the situation, such as in the present case, may occur where the witness testifies that she has no memory of making the statement, or no memory of the assault itself.

40 Concerns over the reliability of the statement also arise where W does not recant the out-of-court statement but testifies that she has no memory of making the statement, or worse still, no memory of the assault itself. The trier of fact does not see or hear the witness making the statement and, because there is no opportunity to cross-examine the witness contemporaneously with the making of the statement, there may be limited opportunity for a meaningful testing of its truth. In addition, an issue may arise as to whether the prior statement is fully and accurately reproduced.

[95] The procedure to determine necessity and reliability is set out at paras. 47 – 49.

47 Prior to admitting hearsay statements under the principled exception to the hearsay rule, the trial judge must determine on a voir dire that necessity and reliability have been established. The onus is on the person who seeks to adduce the evidence to establish these criteria on a balance of probabilities. In a criminal context, the inquiry may take on a constitutional dimension, because difficulties in testing the evidence, or conversely the inability to present reliable evidence, may impact on an accused's ability to make full answer and defence, a right protected by s. 7 of the Canadian Charter of Rights and Freedoms: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505. The right to make full answer and defence in turn is linked to another principle of fundamental justice, the right to a fair trial: R. v. Rose, [1998] 3 S.C.R. 262. The concern over trial fairness is one of the paramount reasons for rationalizing the traditional hearsay exceptions in accordance with the principled approach. As stated by Iacobucci J. in Starr, at para. 200, in respect of Crown evidence: "It would compromise trial fairness, and raise the spectre of wrongful convictions, if the Crown is allowed to introduce unreliable hearsay against the accused, regardless of whether it happens to fall within an existing exception."

48 As indicated earlier, our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination. It is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible. However, the constitutional right guaranteed under s. 7 of the Charter is not the right to confront or cross-examine adverse witnesses in itself. The adversarial trial process, which includes cross-examination, is but the means to achieve the end. Trial fairness, as a principle of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R. v. Mills, [1999] 3 S.C.R. 668, at paras. 69-76. In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern.

49 The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its [page816] probative value is outweighed by its prejudicial effect.

[96] Factors to be considered by the Court are set out at paras. 53 and 54.

53 Further, it is not easy to discern what is or is not a circumstance "surrounding the statement itself". For example, in Smith, the fact that the deceased may have had a motive to lie was considered by the Court in determining threshold admissibility. As both Rosenberg J.A. and Blair J.A. point out in their respective reasons, "in determining whether the declarant had a motive to lie, the judge will necessarily be driven to consider factors outside the statement itself or the immediately surrounding circumstances" (para. 97).

54 Much of the confusion in this area of the law has arisen from this attempt to categorically label some factors as going only to ultimate reliability. The bar against considering "corroborating or conflicting evidence", because it is only relevant to the question of ultimate reliability, is a further example. Quite clearly, the corroborative nature of the semen stain in Khan played an important part in establishing the threshold reliability of the child's hearsay statement in that case.

[97] The two circumstances for testing a statement’s reliability, which are set out in the Crown factum at para. 29, are stated at paras. 62, 63:

62 One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form. Wigmore explained it this way:

There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured. [s. 1420, p. 154]

63 Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested. Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. This preferred method is not just a vestige of past traditions. It remains a tried and true method, particularly when credibility issues must be resolved. It is one thing for a person to make a damaging [page822] statement about another in a context where it may not really matter. It is quite another for that person to repeat the statement in the course of formal proceedings where he or she must commit to its truth and accuracy, be observed and heard, and be called upon to explain or defend it. The latter situation, in addition to providing an accurate record of what was actually said by the witness, gives us a much higher degree of comfort in the statement's trustworthiness. However, in some cases it is not possible to put the evidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth and accuracy. Again, common sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence.

[98] The reasons for finding the statement in Khelawon to be inadmissible are set out at paras. 105-107.

105 The fact remains however that the absence of any opportunity to cross-examine Mr. Skupien has a bearing on the question of reliability. The central concern arising from the hearsay nature of the evidence is the inability to test his allegations in the usual way. 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.

106 Obviously, there was no case to be made here on the presence of adequate substitutes for testing the evidence. This is not a Hawkins situation where the difficulties presented by the unavailability of the declarant were easily overcome by the availability of the preliminary hearing transcript where there had been an opportunity to cross-examine the complainant in a hearing that dealt with essentially the same issues. Nor is this a B. (K.G.) situation where the presence of an oath and a video were coupled with the availability of the declarant at trial. There are no adequate substitutes here for testing the evidence. There is the police video -- nothing more. The principled exception to the hearsay rule does not provide a vehicle for founding a conviction on the basis of a police statement, videotaped or otherwise, without more. In order to meet the reliability requirement in this case, the Crown could only rely on the inherent trustworthiness of the statement.

107 In my respectful view, there was no case to be made on that basis either. This was not a situation as in Khan where the cogency of the evidence was such that, in the words of Wigmore, it would be "pedantic to insist on a test whose chief object is already secured" (s. 1420, at p. 154). To the contrary, much as in the case of the third statement ruled inadmissible in Smith, the circumstances raised a number of serious issues such that it would be impossible to say that the evidence was unlikely to change under cross-examination. Mr. Skupien was elderly and frail. His mental capacity was at issue -- the medical records contained repeated diagnoses of paranoia and dementia. There was also the possibility that his injuries were caused by a fall rather than an assault -- the medical records revealed a number of complaints of fatigue, weakness and dizziness and the examining physician, Dr. Pietraszek, testified that the injuries could have resulted from a fall (A.R., vol. II, at p. 259). The evidence of the garbage bags filled with Mr. Skupien's possessions provided little assistance in assessing the likely truth of his statement -- he could have filled those bags himself. Ms. Stangrat's obvious motive to discredit Mr. Khelawon presented further difficulties. The initial allegations were made to her -- Dr. Pietraszek acknowledged in his evidence that when he saw Mr. Skupien, Ms. Stangrat was present and may have helped him by giving some indication of what happened. The extent to which Mr. Skupien may have been influenced in making his statement by this disgruntled employee was a live issue. Mr. Skupien had issues of his own with the way the retirement home was managed. This is apparent from his rambling complaints on the police video itself. The absence of an oath and the simple "yes" in answer to the police officer's question as to whether he understood that it was important to tell the truth do not give much insight on whether he truly understood the consequences for Mr. Khelawon of making his statement. In these circumstances, Mr. Skupien's unavailability for cross-examination posed significant limitations on the accused's ability to test the evidence and, in turn, on the trier of fact's ability to properly assess its worth.

[99] In the present case, there is no video. As I state below, there is more than one reasonable inference to be reasonably drawn from M.’s statement to Ms. Marcheterre. There is certainly evidence of influence on M. in the evidence of S.O. and in the example of K. There was no attempt to confirm that M. understood the importance of telling the truth about such a serious matter.

Position of the Parties

[100] The Crown cites the principles in its factum, paras. 7, 8, 16, 28, 29, 31-33, that she submits favour admissibility.

[101] The defence submits that the hearsay evidence of the recording is presumptively inadmissible.

[102] The parties disagree as to whether the Crown has proven on a balance of probabilities that sufficient hallmarks of reliability as identified in the cases are present in this case to permit admissibility.

Analysis

1. There is an absence of confirmation of an understanding of the importance of telling the truth before the audio recording commenced.

[103] There is nothing said or done to impress upon M. the duty or importance to tell the truth.

[104] Ms. Marcheterre’s evidence of when the single occasion that she spoke to M. about telling the truth occurred is not identified and her testimony is completely lacking in detail as to what was said and as to M.’s level of understanding.

[105] Defence counsel points out that in her statement to police on November 19, 2019, age 5, M. said she doesn’t know what it means to tell the truth.

[106] In her second statement to police on June 11, 2020, the extent of her understanding of the importance of telling the truth is not canvassed.

[107] M. made no statement about sexual activity by her parents in her first two statements to police. On this point, I recognize that the issue on this voir dire is threshold reliability, not weighing what was said against other evidence, but on the issue of reliability, this is a consideration. I have instructed myself on the law relevant to delayed disclosure and piecemeal disclosure. (see R. v. D.D., R. v. Kiss and R. v. D.P. below)

[108] What she says in the audio recording also differs from what S.O. told the police officer that M. had said to her that very morning. Again, I am not weighing the evidence, but considering the difference as a factor relevant to reliability.

[109] Also, to be considered is the evidence of S.O. that M. would blame other people if she perceived that she was going to get into trouble. In answering S.O.’s questions in the morning, according to S.O., M. first said that G. told her to do it and then blamed the neighbour’s kids. On S.O.’s evidence, it was subsequent to S.O.’s expressing doubt to M. as to why she acted as she had that M. said she learned it from mom and dad.

2. Inability to Assess Demeanour

[110] The court is told by the witness that M. is nervous, but in the recording M. sounds calm.

[111] The benefit of a video recording is not available.

3. Lack of Contemporaneous Cross-Examination of M.

[112] The defence had no opportunity to contemporaneously cross-examine M.. There are no circumstances that will allow for sufficient testing of what M. said by means other than what contemporaneous cross-examination could have achieved.

[113] What M. said in the recording differs from what S.O. reported was said to her.

[114] The recording that S.O. made is not in evidence and not accounted for.

4. Full and Frank Disclosure of what M. said

[115] It is unknown what if anything else was said by A. to M. or by M. to her. A. was not called as a witness.

[116] S.O.’s recording is not before the court.

[117] There is a lack of detail as to what M. did or said between what she said to S.O. and the audio recording made by Ms. Marcheterre.

[118] There is no accounting for what M. said before the recording begins and captures her apparently in midsentence or sentences.

[119] The reports by the therapists of what M. said to them is not before the court. There is no Khan application for any such statements.

5. Crown submission in writing that reliability will generally be met in one of two ways (para. 29 (a), (b))

[120] Clearly, it cannot be said the circumstances in which the audio recording was made are such that the contents are so reliable that contemporaneous cross-examination would add little to the process.

[121] Clearly, there are no circumstances in this case that would allow for sufficient testing of her statement by means other than contemporaneous cross-examination.

6. Inappropriate Sexual Knowledge

[122] This factor is not demonstrated in the audio in issue.

7. No Animosity or Motive to Lie

[123] It cannot be said that these factors, or motive to please, or influence are absent in this case.

[124] The record of the trial evidence to the point of this application is full of evidence about the hostility borne by relatives including caregivers against the accused both before and following the arrest of the accused and the apprehension of the children. For example, aunt C. and her husband, M.S., wrote that they suspected that the children had been sexually molested by the accused as early as December 3, 2019. Another example from the testimony of Ms. Marcheterre is that she and the workers assumed that once the CAS investigation was completed, it was not safe for the children to be with their parents and said that to the children.

[125] There are also significant examples of alienating language used by caregivers and therapists to and in the presence of the children.

[126] The evidence of child witness K. was that she felt under such pressure from family members to help the case of her siblings that she went as far as lying to the police about being sexually assaulted herself is also relevant to this point.

[127] G. and M. lived together since their apprehension. They both lived with S.O. since May 1, 2020. G. disclosed sexual abuse 6 months prior to M. doing so. After two prior police statements in which there was no mention of sexual abuse, G. made those allegations in a third police statement in January 2021. A. and S.O. are both involved in the disclosures by each of G. and M. S.O. testified that G. told everybody, including her sister, although S.O. said that G. only disclosed that she’d been sexually abused, not the details.

8. Is what M. said in the audio recording corroborated by other evidence?

[128] It is not. The presence of semen was a factor in Khan.

9. The timeline between the audio recording and the alleged incident

[129] In P.G., Justice Sharpe said:

31 A related point arises from the trial judge's finding that "[t]he statements were provided relatively close in time to the events described" and the use of that finding as an indicia of reliability. This reasoning reveals both a misapprehension of the evidence and a misreading of the leading case of Khan. It is clear from the record that the statements were not provided until at least several months after the events described. This stands in stark contrast to the situation in Khan where the infant complainant reported an act of sexual abuse within minutes of its occurrence. The delay in disclosure here was a factor that detracted from its reliability yet the trial judge treated the timing as a factor favouring reliability.

[130] I acknowledge the principles set out in R. v. D.D, 2000 SCC 43 at paras. 63 and 65:

63 Application of the mistake reflected in the early common law now constitutes reversible error. See R. v. W. (R.), [1992] 2 S.C.R. 122, per McLachlin J. (as she then was) at p. 136:

Finally, the Court of Appeal relied on the fact that neither of the older children was "aware or concerned that anything untoward occurred which is really the best test of the quality of the acts." This reference reveals reliance on the stereotypical but suspect view that the victims of sexual aggression are likely to report the acts, a stereotype which found expression in the now discounted doctrine of recent complaint. In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.

The significance of the complainant's failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).

65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[131] In R. v. Kiss, 2018 ONCA 184, the court stated at para. 101:

As the Supreme Court held in R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, there is no rule as to how victims of sexual assault are apt to behave. I reject Mr. Kiss's claim that the trial judge erred in relying on D.D. for this purpose. The principle in D.D. is not confined to delays in reporting. It relates to any stereotypical assumption about how sexual assault victims are apt to behave, and it is stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.

[132] In R. v. P. (D.), 2017 ONCA 263, at paras. 30-31, the court stated:

30 The trial judge concluded that J.E.'s explanation for his delayed disclosure and for his failure to disclose all of the assaults in his first interview with the police was "perfectly plausible". The trial judge observed:

The decision to disclose is a difficult one that can be very painful for victims. It cannot be surprising that it would take [J.E.] more than one occasion to shed a burden that had been weighing on him for years.

31 We see no error in the trial judge's assessment of the impact of J.E.'s delayed and bifurcated disclosure on his credibility. Nor do we accept the argument that there is a fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. The comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case.

[133] I acknowledge the principles as set out in R. v. D.F., 2023 ONCA 584 by Justice Hourigan in dissent, para. 66:

66 The Supreme Court had occasion to revisit the issue of child witnesses two years later in W.(R.). In that case, a central issue was whether the court of appeal erred in the way it approached the evidence of a child witness by applying dated stereotypes. The court held, at p. 134, that the presence of inconsistencies, particularly in relation to peripheral matters (e.g., time and place), should be considered in context and in relation to the age of the complainant at the time of the event(s):

[W]e approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

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.

[134] The reasons of Justice Hourigan were adopted by the Supreme Court of Canada in R. v D.F., 2024 SCC 14.

[135] On the point of child witnesses, Justice Cory said in R. v. C.C.F., [1997] 3 S.C.R. 1183 at para. 19:

19 It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The younger the child, the more pronounced will this be. Indeed to state this simply expresses the observations of most Canadians. It is a common experience that anyone, and particularly children, will have a better recollection of events closer to their occurrence than he or she will later on. (See, e.g., Rhona Flin and J. R. Spencer, "Do Children Forget Faster?", [1991] Crim. L.R. 189, at p. 190.) It follows that the videotape which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial. Thus the section enhances the ability of a court to find the truth by preserving a very recent recollection of the event in question.

[136] On the evidence, the offence alleged by M. occurred once, when she was between the ages of 2 to 5 years. She was seven years old when she made this audio.

10. Other Factors

[137] M. is already speaking when the audio begins.

[138] What she is responding to is unknown.

[139] The fact that M. is already speaking when the audio begins is concerning because in the balance of the recording she is responding to questions. I recognize Ms. Marcheterre testified that she told M. that she was there to speak about what M. had told S.O. that morning, but on S.O.’s evidence what M. said to S.O. differs from what M. is heard saying in the audio.

[140] The Crown chose to lead limited in chief evidence of S.O. about M.’s disclosure.

Summary

[141] For these reasons, I am not satisfied that the Crown has met its burden on the reliability requirement of the subject audio recording tendered through Ms. Marcheterre.

Exercise of Discretion

[142] I would also exclude the audio recording in the exercise of my discretion. (Khelawon, para. 49).

[143] The Crown submits that M.’s statements in the audio recording, if admissible, are proof of sexual abuse of M. by the accused.

[144] Defence submits that there are other reasonable inferences that can be drawn from what M. said in the recording. She was between the ages of 2 to 5 years at the time of the event alleged. Parents care for their young children in the bathroom with their hands in private ways in the normal course of life.

[145] On the evidence in this case, I find that the prejudicial value of the proposed evidence far outweighs its probative value.

Decision

[146] The Crown application is dismissed. The audio recording is not admissible.

[147] Counsel are agreed that the balance of the evidence of Ms. Marcheterre called on the voir dire so far as it is relevant to trial issues and subject to hearsay issues is to be considered in the trial proper.

Tranmer J. Released: August 2, 2024