Court of Appeal for Ontario

Date: 2001-06-15 Docket: C33312

Before: Finlayson, Weiler and Goudge JJ.A.

Between:

Her Majesty the Queen Appellant

• and -

M.M. Respondent

Counsel: Philip Downes, for the appellant Gregory Lafontaine, for the respondent

Heard: June 11, 2001

The appellant appeals against the acquittal of the respondent on charges of sexual assault, forcible confinement and uttering threats granted by Justice Edward F. Wren, sitting with a jury, dated November 19, 1999.

FINLAYSON J.A.:

[1] Between November 8th and 19th, 1999, the respondent, M.M., was tried by the Honourable Mr. Justice Wren and a jury in the Superior Court of Justice at Toronto on an indictment alleging that the respondent:

on or about the 26th of January, 1999 at the City of Toronto, in the Toronto Region, did commit a sexual assault on R.M., contrary to the Criminal Code;

and further, that he:

on or about the 26th of January, 1999 at the City of Toronto, in the Toronto Region, did by word of mouth knowingly utter a threat to R.M. to cause death to R.M., contrary to the Criminal Code;

and further, that he:

on or about the 26th of January, 1999 at the City of Toronto, in the Toronto Region, without lawful authority, did confine R.M., contrary to the Criminal Code.

[2] On November 19, 1999, the respondent was acquitted on all counts. The appellant, the Attorney General of Ontario, now appeals against the acquittal on a question of law alone on the ground that the trial judge erred in excluding the statement of A.M.

Background

[3] The complainant in this case, R.M., is the respondent’s former wife. They have two children, H. and A., aged 2½ and 6 respectively at the time of trial. At the time of the alleged incident, the couple had separated and were involved in a custody dispute over the children.

[4] According to the complainant, on the afternoon of January 26, 1999, the respondent forced his way into her apartment after being told that he was not to enter. It was the complainant’s evidence that the respondent then picked her up against her will and carried her to the bedroom, where he held her down and forced her to engage in sexual intercourse. In addition to allegedly confining and sexually assaulting the complainant, the respondent was also alleged to have threatened to tape the complainant’s mouth shut and to kill her. The complainant further claimed that throughout the incident, she screamed and yelled, and that although she repeatedly cried out to her eldest son, A., to help her, A. was prevented from doing so because the respondent had blocked the door from opening.

[5] It was the respondent’s position that he and the complainant had engaged in consensual sexual intercourse that afternoon, and that the complaint against him was motivated by the custody battle. The respondent testified that on the afternoon in question, after the couple had sex, he left the apartment with A. and took him back to his apartment for a visit. Soon after, he became aware that the police were looking for him and so he contacted the police. A detective informed him that he was to come down to the station. The respondent cooperated with this request and was charged that afternoon.

[6] On the day in question, A. accompanied his father to the police station and was interviewed by the police to determine if he could provide any further details about the incident. The interview with the child on January 26, 1999 was audiotaped but not videotaped.

[7] A. made a second statement to the police on June 29, 1999, but the fact that this statement was not admitted at trial is not under appeal.

[8] In its opening to the jury, Crown counsel referred to A.M. as having witnessed the events in issue in the course of summarizing the complainant’s version of the alleged assault. The Crown sought to call A. to testify as its second witness, right after the conclusion of the evidence of the complainant. The jury was present when six-year-old A. came into the courtroom sobbing and then left unable to testify. After a recess the trial judge told the jury:

Members of the jury, thank you for your indulgence. We have concluded that, whatever assistance the young lad’s … A.’s evidence would be to us is far outweighed by the emotional strain on him, so we decided not to put him through it.

[9] Following the Crown’s case, the jury was excused and by way of an application pursuant to R. v. Khan (1990), 1990 CanLII 77 (SCC), 59 C.C.C. (3d) 92 (S.C.C.), the Crown sought to introduce A.’s taped and transcribed statement taken by the police on the day of the incident.

The trial judge’s rulings on the admissibility of the statement

[10] Following the Crown’s application, the trial judge ruled that A.’s statement to the police should not be admitted.

[11] The trial judge found that the child was clearly upset and traumatized about testifying and that the necessity requirement under the rubric of R. v. Khan, supra, had been met. With respect to the reliability criterion, the trial judge found that the child was present in the apartment during the time of the alleged sexual assault and that the police interview was conducted within approximately 3-4 hours of the alleged incident. The recording and transcript of the interview suggested that A. was calm and outgoing, and that he demonstrated considerable intelligence and resistance to suggestibility. According to the trial judge, his concerns over the officers’ failure to inquire into A.’s ability to differentiate between the truth and lies was offset by A.’s attempts to set the officers straight when they misapprehended what he was saying. Further, the trial judge held that there was “no central ambiguity in the statement that was capable of more than one conclusion so as to result in the absence of cross-examination with unfairness to the accused.”

[12] Based on all of these reasons, the trial judge held that “the issues of reliability and necessity are favourable to the admissibility of the taped evidence.” However, the trial judge went on to state that there were additional concerns to address and weigh. He stated:

The evidence is not that of a victim of an offence but rather of a witness to the offence. Its relevance is principally to two issues in the trial, of credibility, i.e., it is relevant to support the complainant’s evidence that she called the child during the events in the bedroom, and that the accused at one point moved a child’s playpen against the door.

On the other hand, his evidence would appear to contradict the mother’s firm testimony that the accused had never before that day been allowed to enter the apartment.

The evidence cuts both ways, and its probative value to the jury would be as evidence supportive or not of the complainant’s evidence. Given this limited probative purpose and weight, it would, in my opinion, absent the opportunity to cross-examine, be unfair to the accused to admit it into evidence. [Emphasis added.]

[13] After the respondent had testified, the Crown asked the trial judge to re-visit the issue of the admissibility of A.’s statement, arguing that evidence given by the respondent in his examination-in-chief was directly in contrast to the child’s evidence, making A.’s statement extremely probative to the issues before the court. The trial judge stated that while he understood that the child’s statement was clearly probative, he had weighed this against other considerations, taken all of the arguments into account, and decided to exercise his discretion in not allowing the statement to be admitted at trial.

Issues

[14] It is the position of the appellant that the trial judge erred in law by excluding the child’s statement. The appellant submits that the trial judge made the following errors:

(1) Having already determined that the absence of cross-examination did not affect the threshold reliability of the statement, the trial judge erred by finding that the absence of cross-examination affected the ultimate reliability such that the statement was inadmissible. The issue of the absence of cross-examination having been decided under the threshold analysis, the ultimate reliability of the statement was for the jury to decide.

(2) The trial judge erred in holding that the probative value of the statement was diminished because it was relevant and helpful to both the Crown and the defence. The appellant says that its probative value to the jury was enhanced by its dual nature.

Analysis

[16] The notion of reliability, as it relates to the admission of evidence in cases such as the one at bar, was discussed by Lamer C.J.C. and Iacobucci J. for the Supreme Court of Canada in R. v. Hawkins (1996), 1996 CanLII 154 (SCC), 111 C.C.C. (3d) 129 at 157-58 (S.C.C.):

The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.

[17] After having considered the issues of necessity and reliability, Lamer C.J.C. and Iacobucci J. went on to deal with the residual discretion retained by trial judges to exclude evidence even in circumstances where the evidence appears to be necessary and reliable. As stated at pp. 161-62:

It remains to be seen whether the trial judge ought to have nonetheless excluded Graham’s evidence before the inquiry under his residual discretion at common law. Even where a particular hearsay statement satisfies the criteria for necessity and reliability under the reformed framework, the statement remains subject to the judge’s residual discretion to exclude the statement where “its probative value is slight and undue prejudice might result to the accused”: [R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915] at p. 937. The existence of this discretion, of course, is constitutionalized by the guarantee of a fair trial under s. 11(d) of the Canadian Charter of Rights and Freedoms: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at p. 579, 101 C.C.C. (3d) 193, 128 D.L.R. (4th) 98 (S.C.C.). And as underscored by McLachlin J. in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 610, 66 C.C.C. (3d) 321, 83 D.L.R. (4th) 193 (S.C.C.), the meaning of “prejudice” must be broadly understood as encompassing both prejudice to the accused and prejudice to the trial process itself.

[18] The approach espoused in R. v. Hawkins, supra, was followed by the trial judge in reaching his decision on the admissibility of the child’s statement. After having acknowledged that the child’s statement met the threshold for necessity and reliability, the trial judge nevertheless chose to exclude the statement on the ground that admission would operate unfairly against the respondent. I believe that the trial judge, who had the opportunity to read the statement and consider its impact on the case against the respondent, was entitled to exercise his discretion in this manner and that he acted properly and within the scope of his authority in reaching the decision that he did.

[19] The trial judge recognized that the five-year-old child was not a witness to the alleged sexual assault itself, but was merely in the apartment at the time when it is said to have occurred. Accordingly, the child was in a position to give limited evidence as to what he saw and heard. Based on these factors, as well as the fact that the respondent would not be able to cross-examine the child on the statement, the trial judge decided that it would be unfair to the respondent to admit the evidence. That is, the trial judge clearly assessed the probative value of the evidence and then weighed this against the potential prejudice or unfairness to the respondent if the evidence was admitted, concluding that to admit the statement while denying the respondent the chance to elicit his own evidence from A. would be fundamentally unfair to the defence.

[20] I do not believe that the trial judge acted unreasonably in exercising his discretion or that he erred in principle in properly focussing on the absence of cross-examination of this witness as an element of trial fairness. While the trial judge did note that the statement given by A. had no central ambiguity, I agree with the respondent’s submission that this is only one factor that would tend to reduce the impact of the absence of cross-examination. The respondent could have benefited from cross-examining A. on the statement, and limiting A.’s evidence to the statement had the potential of presenting an entirely unbalanced picture of his evidence, to the detriment of the accused and the trial process.

[21] The trial judge was clearly cognizant of the relevant considerations to keep in mind when ruling on the admissibility of a hearsay statement, and there is no basis for this court to overrule the trial judge’s appropriate exercise of discretion or to interfere with the jury’s verdict of acquittal.

Disposition

[22] For all of the above reasons, I conclude that the trial judge did not err in excluding A.’s statement. Accordingly, the appeal is dismissed.

Released: JUN 15 2001 Signed: “G.D. Finlayson J.A.”

GDF “I agree K.M. Weiler J.A.”

“I agree S.T. Goudge J.A.”