Her Majesty the Queen v. R.C. [Indexed as: R. v. C. (R.)]

77 O.R. (3d) 364

[2005] O.J. No. 3256

Docket: C41661

Court of Appeal for Ontario,

Goudge, Simmons and Armstrong JJ.A.

August 3, 2005

Criminal law -- Evidence -- Hearsay -- Trial judge admitting four out-of-court statements by young child which contained details missing from child's viva voce testimony -- Trial judge not erring in finding that necessity criterion of principled exception to hearsay rule was satisfied -- Trial judge erring in admitting all four statements instead of just one statement -- Curative proviso not applying.

Criminal law -- Sentence -- Sexual interference -- Sentence of three years' imprisonment for sexual interference with young child affirmed on appeal. [page365]

The accused was convicted of sexually interfering with his niece AC and a family friend, SS. AC was six years old at the time of trial and SS was seven. The offences allegedly took place more than two years earlier. Both complainants testified at trial, but the trial judge admitted four out-of-court statements by AC which contained two details which were missing from her viva voce testimony. The accused was sentenced to three years' imprisonment on each count. He appealed his conviction with respect to AC and his sentence.

Held, the conviction appeal should be allowed; the sentence appeal should be dismissed.

As AC did not recant her out-of-court statements, the trial judge properly determined the admissibility of those out-of- court statements by applying the tests of necessity and reliability. He did not err in admitting the two additional facts found in AC's out-of-court statements. They met the necessity requirement and the accused did not contest that they met the reliability requirement as well. However, the trial judge erred in admitting all four statements. Once one of the statements was admitted, it was no longer reasonably necessary to admit the others to get a full and frank version of AC's recollection. The curative proviso could not be safely applied to the error. The potential cumulative impact of the four statements could not be ignored. A new trial was necessary on the counts involving AC.

The sentence of three years' imprisonment for sexual interference with SS was not unfit.

APPEAL from the conviction by Henderson J. of the Superior Court of Justice sitting with a jury, dated December 2, 2003, for sexual interference and on appeal from the sentence imposed by Henderson J., dated March 5, 2004.

Cases referred to Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 9 O.R. (3d) 641, [1992] O.J. No. 1725, 94 D.L.R. (4th) 193, 76 C.C.C. (3d) 10 (C.A.); R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 41 O.A.C. 353, 113 N.R. 53, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1

C. Glaister, duty counsel, for appellant. Amy Alyea, for respondent.

The judgment of the court was delivered by

[1] GOUDGE J.A.:-- R.C. was charged with sexually assaulting and sexually interfering with both his niece A.C. and a family friend, S.S. Both complainants were very young. A.C. was six at the time of trial, and S.S. was seven. The offences were alleged to have taken place more than two years earlier. The Crown alleged that the offences took place in the appellant's bedroom when he was babysitting the children.

[2] The appellant was convicted on all four counts by a judge and jury. The convictions for sexual assault were stayed, and the [page366] appellant was sentenced to three years in penitentiary concurrent on the two sexual interference convictions.

[3] Initially the appellant appealed both his convictions and his sentence. The matter proceeded in Kingston as an in-person appeal although the appellant was greatly assisted by duty counsel. At the hearing the appellant abandoned his conviction appeal involving S.S. but maintained both his conviction appeal concerning A.C. and his sentence appeal.

[4] The appellant's conviction appeal turns on the admission by the trial judge of five out-of-court statements by the two children, four by A.C. and one by S.S. The trial judge admitted the statements at the conclusion of a voir dire at which both children gave evidence. All parties appeared to accept that for the purposes of making the ruling, their evidence would be presumed to be the same as the evidence they would give at trial. Indeed, both children ultimately testified at trial.

[5] The children's evidence was central to the Crown's case. Each girl said that the appellant would hurt her or touch her when she was alone with him in his bedroom. Each girl described how the appellant touched his penis to her vagina and buttocks, and put his penis into her mouth. Each girl said that she cried and that it hurt.

[6] Of the four out-of-court statements by A.C., three were made on July 11, 2001, one to her cousin, one to her father and one to her mother. The fourth was made on October 3, 2001, again to her mother. All are similar and all add two facts not contained in A.C.'s viva voce evidence.

[7] The first fact was that what happened was part of the "peep game" which the appellant taught her. She said that the peep game was when they played with each other's peeps, by which she meant genitals. In her viva voce evidence she said she did not know about the peep game.

[8] The second fact was that she said "no, no" when these incidents happened. In her viva voce testimony she gave evidence that she said nothing while the incidents were taking place.

[9] The fifth out-of-court statement was made by S.S. to her mother on October 3, 2001. While S.S. testified viva voce about the incidents and the peep game, she gave more detail about both in her out-of-court statement.

[10] The trial judge concluded that all five out-of-court statements were admissible because they met both the necessity and reliability requirements laid down in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 59 C.C.C. (3d) 92.

[11] The necessity requirement was met because the trial judge found that the statements added two important details to [page367] the viva voce evidence given by each child. He found that the reliability requirement was met because of a number of indicia of reliability, most importantly that both children could be cross-examined on their out-of-court statements when they gave evidence at trial. The reliability issue does not arise on this appeal.

[12] The appellant challenges the admissibility of the out- of-court statements for two reasons.

[13] First, he argues that the four statements made by A.C. add two details that contradict her viva voce evidence, so that her evidence in essence constitutes a denial of the prior statements. The appellant says that in such circumstances the statements must meet the more onerous requirements set out in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 79 C.C.C. (3d) 257.

[14] I do not agree. In my opinion, it cannot be said that A.C. recants her prior statements in her viva voce evidence. While the two new facts in her out-of-court statements are clearly inconsistent with her viva voce evidence, the latter is not an express disavowal of the former. She does not recant those prior statements.

[15] Thus I do not think the trial judge erred in determining the admissibility of A.C.'s four out-of-court statements by applying the tests of necessity and reliability. There was no need for him to apply the criteria used for a recanting witness set out in R. v. B. (K.G.), supra.

[16] In Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 9 O.R. (3d) 641, [1992] O.J. No. 1725, 76 C.C.C. (3d) 10 (C.A.), Doherty J. A. set out the way in which the necessity requirement should be applied to the prior statements of children who are complainants in sexual assault cases. He said this at p. 657 O.R., p. 24 C.C.C.:

In the context of cases involving an alleged sexual assault on a child, reasonable necessity refers to the need to have the child's version of events pertaining to the alleged assault before the tribunal charged with the responsibility of determining whether the assault occurred. In my view, if that tribunal is satisfied that despite the viva voce evidence of the child, it is still "reasonably necessary" to admit the out-of-court statement in order to obtain an accurate and frank rendition of the child's version of the relevant events, then the necessity criterion set down in Khan is satisfied: . . .

[17] In a case such as this, the objective of obtaining an accurate and frank rendition of the child's version of the relevant events is best achieved by adding to the evidence before the jury the additional facts contained in the out-of- court statements, even if those facts are inconsistent with parts of the [page368] child's viva voce evidence. It is then up to the jury to evaluate the child's composite story and determine where the truth lies. This approach recognizes the reality that when a young child recalls an incident, his or her memory may produce descriptions that vary in a number of specifics, even to the point of contradiction.

[18] Thus I conclude that the trial judge did not err in admitting the two additional facts found in A.C.'s out-of- court statements. They meet the necessity requirement and the appellant does not contest that the reliability requirement is met as well. While it would have been preferable for the trial judge to caution the jury about the inconsistencies between the two additional facts in the out-of-court statements and A.C.'s viva voce evidence, I do not think that it was essential that he do so particularly in light of his instruction to the jury concerning assessing the evidence of children.

[19] The appellant's second argument is that the trial judge erred in admitting all four of A.C.'s out-of-court statements, since each essentially repeats the same facts, namely A.C.'s reference to the peep game and that she repeatedly said no during the incidents.

[20] I agree with this submission. Once one of these four statements was admitted, it was no longer reasonably necessary to admit the others to get a full and frank version of A.C.'s recollection. One out-of-court statement was sufficient to do that. In admitting all four statements the trial judge erred. See Khan v. College of Physicians and Surgeons, supra, at p. 660 O.R., p. 28 C.C.C.

[21] Nor do I think this is an error to which the proviso can be safely applied. Although the four statements contained substantially the same information (indeed, three of them were made on the same day and within a very short period of time), the potential cumulative impact of these essentially consistent statements cannot be ignored. I cannot say that the result would necessarily have been the same if only one of these out- of-court statements had been admitted.

[22] As a result, I would allow the conviction appeal and order a new trial on the counts involving A.C.

[23] The appellant also appeals his sentence of three years in prison. The trial judge in thoughtful reasons sentenced the appellant to that term for sexual interference of A.C. and a second term of the same length concurrent for sexual interference of S.S. The latter sentence stands. I see no error in principle in the trial judge's reasons for sentence, and given the facts of the offence, the position of the appellant in relation to S.S. and the appellant's own circumstances, the sentence imposed cannot be said to be unfit. [page369]

[24] The conviction appeal is therefore allowed and a new trial ordered. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

Conviction appeal allowed; sentence appeal dismissed.