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

85 O.R. (3d) 481

Court of Appeal for Ontario,

O'Connor, Juriansz and Rouleau JJ.A.

May 16, 2007

Criminal law -- Evidence -- Hearsay -- Complainant giving unsworn videotaped statement to police describing sexual assaults by accused -- Complainant recanting at trial -- Trial judge admitting videotaped statement for truth of contents under principled exception to hearsay rule -- Primary hearsay danger being absence of contemporaneous cross-examination when statement taken -- Availability of complainant at trial, videotape of entire interview and finding by trial judge that complainant aware of need to tell truth when statement taken sufficient to overcome hearsay dangers -- Judge having sufficient evidence to assess threshold reliability and not erring by failing to consider contradictory evidence in determination of admissibility of statement -- Statement being properly admitted for truth of contents.

Criminal law -- Standard of proof -- Judge alone -- Reasons for judgment -- Trial judge accepting as reliable and credible hearsay statement of complainant alleging sexual assaults -- Trial judge concluding that acceptance of statement must lead to rejection of accused's evidence beyond a reasonable doubt -- Trial judge erring by failing to consider whether there was reasonable doubt based on whole of evidence including that of complainant evidence at trial, accused's evidence and medical evidence -- Accused's appeal from conviction allowed.

The accused was convicted of sexual offences against his daughter. The only evidence against him at trial was an unsworn videotaped statement given by the 12-year-old complainant to the police. The trial judge admitted that statement for the truth of its contents. At trial, the complainant recanted and testified that she lied to the police. In her videotaped statement, the complainant provided the names of 14 friends and one adult, K, to whom she had allegedly revealed the sexual abuse. The Crown did not call any of the 14 friends, and K testified that the complainant had never reported abuse to him. The complainant had told the police that the abuse included sexual intercourse. The complainant's family doctor testified that the complainant's hymen was intact and that she concluded that the complainant had not had sexual intercourse. Under cross-examination by the Crown, the doctor acknowledged that it is possible for the hymen to remain intact even though there has been penetration. The accused appealed his conviction.

Held, the appeal should be allowed.

The trial judge properly concluded that the circumstances surrounding the taking of the video statement brought home to complainant the need to tell the truth despite the absence of an oath and that the statement was admissible under the principled exception to the hearsay rule. He did not err in not considering contradictory evidence, such as the complainant's ultimate recantation, in determining the threshold admissibility of the complainant's hearsay statement. There was sufficient evidence upon which he could be satisfied that the test for threshold admissibility was met. The danger posed by the hearsay here was primarily the absence of contemporaneous cross-examination and it was sufficiently overcome by the complainant's availability to be cross-examined at trial together with those attributes of the statement that led the trial judge to admit it under the principled [page482] exception to the hearsay rule. The complainant's recantation at trial, K's denial that the complainant had made a report to him, and the doctor's testimony were all matters to be considered in determining the statement's ultimate reliability at trial.

The trial judge erred in his application of the standard of proof to the evidence and in failing to properly apply R. v. W. (D.). The trial judge engaged in forbidden reasoning by believing that his acceptance of the videotaped statement as reliable inevitably led to a rejection of the accused's evidence beyond a reasonable doubt. That reasoning was forbidden because it appeared to shift the burden of proof on to the accused to explain away the complainant's evidence. Though the trial judge accepted the statement as reliable, he ought to have considered whether the whole of the evidence, including the accused's testimony at trial, the testimony of K and the family doctor, and the evidence that many of the alleged assaults occurred with the complainant's brother in the room, raised a reasonable doubt.

APPEAL from a conviction and sentence entered by Cleary J. of the Ontario Court of Justice, dated July 16, 2005 and September 20, 2005, respectively, for sexual assault, sexual interference and incest.

Cases referred to R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, apld R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 220 O.A.C. 338, 355 N.R. 267, 215 C.C.C. (3d) 161, 42 C.R. (6th) 1, consd Other cases referred to 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. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 30 O.R. (3d) 641n, 141 D.L.R. (4th) 193, 204 N.R. 241, 111 C.C.C. (3d) 129, 2 C.R. (5th) 245; R. v. Maharaj (2004), 2004 39045 (ON CA), 71 O.R. (3d) 388, [2004] O.J. No. 2001, 187 O.A.C. 101, 186 C.C.C. (3d) 247 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 340.]; R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309, 140 C.C.C. (3d) 259, 30 C.R. (5th) 313 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 240]

Peter Connelly, for appellant. Alison Wheeler, for respondent.

The judgment of the court was delivered by

JURIANSZ J.A.:--

A. Introduction

[1] The appellant appeals his convictions of sexual assault, touching for a sexual purpose, and two counts of incest, as well as his sentence of three and a half years in custody imposed for these convictions. The convictions arose out of acts which the trial judge found were carried out by the appellant against his daughter. The only evidence against him at trial was a video statement given to the police by his 12- year-old daughter that was admitted for the truth of its contents. At trial, the appellant's daughter recanted and testified she had lied to the police about her father's actions. [page483]

[2] The appellant submits:

(1) the trial judge erred in admitting the complainant's video statement for the truth of its contents; and

(2) the trial judge erred in applying the correct standard of proof to the evidence and in failing to properly apply W. (D.).

[3] The appellant also applies for leave to appeal against sentence, and if leave is granted appeals against sentence.

B. Facts

[4] The complainant gave an unsworn video statement to the police in which she alleged that her father sexually assaulted her over a three-year period, beginning when she was in grade four. The assaults began with inappropriate touching and quickly escalated to intercourse. She said that her father would enter her room, which she shared with her brother, at night and would have sexual intercourse with her. She described in detail the acts of intercourse and the movement of her father on top of her. She also provided a detailed description of the use of condoms, including how after intercourse her father would remove the condom, roll it up, put it in a tissue, and dispose of it in the washroom. She said her father would direct her to clean herself up after sex. She said that initially and for some time she was assaulted nightly, but that the assaults decreased in frequency over time. She said the final assault occurred in September 2004. They ended after her mother learned of the sexual abuse.

[5] In the video statement, the complainant provided the names of 14 friends and an adult family friend, K., to whom she said she had disclosed her allegations. She said she initially confided in K. and made him promise not to tell anybody. She said K. initially planned to have her put in a foster home or call the police, but she asked him not to. She said that three or four months later K. told her mother about the sexual assault. Her mother asked her about it and, after initially denying anything had occurred, she told her mother that her father "sticks it into my vagina and stuff". She said that after she told her mother about the abuse, it stopped.

[6] At trial, the complainant recanted these allegations. She was 13 years old and entering grade eight the next school year when she testified in July 2005. She testified that she had been with a group of female friends and a discussion about sex had taken place. One of her friends believed that the complainant had alleged her father had raped her. That friend told another [page484] friend, who told her mother, who contacted the school, who notified the Children's Aid Society (the "CAS").

[7] An intake worker from the CAS attended the school and spoke to the complainant, who said she was surprised to be summonsed to the vice-principal's office in the middle of the day. This happened on March 1, 2005. The intake worker, the complainant testified, told her she knew that the complainant had told her friends her father was raping her. The complainant said she became upset, scared and nervous. She said she felt that the intake worker pressured her to confirm the allegations. She testified she initially told the intake worker the allegations were not true, but later admitted she may simply have said it was not happening anymore. Eventually the complainant told the intake worker her father put a condom on "his dick" and pushed it into her vagina. The complainant accompanied the intake worker to the police station where she gave the video statement.

[8] At trial, the complainant testified what she said on the video statement was all lies and that she had never been sexually assaulted by her father. She said that while she felt pressured by the CAS intake worker when she made the video statement, she also testified that she was able to tell the truth to the court because both her mother and the CAS social worker were present to support her. When asked about the details she provided about the use of the condom, she explained that she had learned how condoms were used and disposed of from a sexually active friend. She said she added the detail about the condom because she wanted to avoid a physical examination. The complainant testified that she had not told anyone prior to March 1, 2005 about the allegations.

[9] The Crown did not call any of the 14 friends identified by the complainant in her video statement to say that she had complained to them of the sexual abuse.

[10] The family friend, K., who acted as the appellant's surety before trial, testified on behalf of the defence and denied that the complainant had disclosed any sexual abuse to him.

[11] The complainant's family doctor also testified. She had examined the complainant on March 23, 2005 at the request of the mother. The doctor testified that the complainant's hymen was intact. On the basis of her physical examination of the complainant, the doctor testified she came to the conclusion that the complainant had not had sexual intercourse. Under cross-examination by the Crown, the doctor readily acknowledged that sometimes the hymen, particularly in persons 13 and younger, is quite elastic. In such cases, the hymen could remain intact even though there had been penetration. When asked by the judge to quantify what she meant by "possible", the doctor responded"In her case the hymen [page485] was small, so you have to put the small gadget to check inside or take the swabs . . . which I can't do with the small, small hole in the hymen." In re-examination, the doctor said that if a hymen is elastic it could remain intact even after 50 instances of intercourse.

C. Issues

Issue one: The video statement

[12] The admissibility of hearsay evidence is reviewed on a standard of correctness. However, absent manifest error, the findings of fact made by the trial judge deserve deference: R. v. Merz (1999), 1999 1647 (ON CA), 46 O.R. (3d) 161, [1999] O.J. No. 4309, 140 C.C.C. (3d) 259 (C.A.) at para. 49.

[13] The trial judge correctly indicated that the video's admissibility depended on its necessity and threshold reliability. He noted that the defence conceded that the statement was necessary. In terms of reliability, despite some confusion on the part of the complainant, it is apparent that the entire interview with her was video recorded. The trial judge found that the complainant appreciated the need to be truthful even though there was no oath administered and she was not told that the video statement might be used in court. He commented that the complainant knew she was at a police station and that the two persons interviewing her were police officers. He observed that less than two hours elapsed from the time the complainant met the intake worker at the school to when she found herself at the police station being video recorded. It is worth noting that the complainant did not testify under oath at trial. At trial she promised to tell the truth. The trial judge concluded that the circumstances surrounding the taking of the video statement were an adequate substitute for an oath and decided the statement was admissible under the principle of 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] On appeal, the appellant submits that the statement ought not to have been admitted according to the Supreme Court of Canada's recent decision in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 215 C.C.C. (3d) 161, which was released after the decision in this case. The appellant submits that according to Khelawon the trial judge should have considered evidence that conflicted with the video statement in determining its admissibility.

[15] In Khelawon, Charron J. explained that the factors a court must consider in deciding whether to admit hearsay under the principled approach cannot be categorized in terms of threshold and ultimate reliability. She notes, at para. 54, confusion has resulted from the "attempt to categorically label some factors as [page486] going only to ultimate reliability". Considering "corroborating or conflicting evidence" as only relevant to ultimate reliability is an example. Charron J., in Khelawon, put forward a new functional approach in which the factors to be considered at the threshold reliability stage could include the presence of supporting or contradictory evidence in appropriate cases.

[16] The appellant relies on Khelawon to submit that the complainant's recantation establishes indisputably that she is capable of fabrication, thus undermining the reliability of the prior statement. He goes on to argue that the fact that the testimony of both the family doctor and K. contradicted the daughter's video statement, coupled with the complete lack of corroborating evidence for the statement, constitute additional reasons why it should have been regarded as lacking sufficient reliability to justify its admission for the truth of its contents.

[17] In my view, the appellant misreads Khelawon. Khelawon did not disturb the essential distinction between threshold reliability and ultimate reliability. Charron J. explained that the trial judge still acts as a gate-keeper to preliminarily assess the threshold reliability of the hearsay statement leaving the ultimate determination of its worth to the fact- finder at trial. The new insight of Khelawon is that the factors relevant on an admissibility inquiry cannot be said categorically to relate to either threshold or ultimate reliability. Rather, the court must employ a functional approach by first identifying the particular dangers posed by the proffered hearsay and then considering whether those dangers may be adequately overcome so that the hearsay may be considered sufficiently reliable to be admitted for consideration by the trier of fact.

[18] Charron J. observes at paras. 61-63 of Khelawon that the reliability requirement will generally be met in one of two ways:

(1) that there is no real concern about whether the statement is true or not because of the circumstances in which it came about; or

(2) that no real concern arises from the fact that the statement is presented in a hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination.

These two categories assist in identifying the factors that need to be considered on the admissibility inquiry, but are not mutually exclusive.

[19] Khelawon should not be read, as the appellant suggests, as requiring the consideration of supporting or contradictory evidence [page487] in every case. If that were so, then the voir dire would overtake the trial. The question is where to draw the line. In discussing that question, Charron J. referred to the court's decision in R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, [1996] S.C.J. No. 117, 111 C.C.C. (3d) 129. In that case a witness testified against a police officer at his preliminary inquiry, then brought an application to testify again and recanted her initial testimony. By the time of trial the witness had become the accused's wife and could not testify because of spousal incompetency. At trial, the Crown sought to rely on her testimony at the preliminary inquiry.

[20] When the case reached the Supreme Court, the court held that generally a witness's testimony before a preliminary inquiry will satisfy the test for threshold reliability because it was given under oath and was subject to contemporaneous cross-examination in a hearing involving the same parties and mainly the same issues. These features provided sufficient guarantees of its trustworthiness. Moreover, the accuracy of the transcript of the statement was certified.

[21] What is important to the discussion here, is that the majority found that the simple fact the witness's testimony at the preliminary inquiry contained internal contradictions due to her recantation did not provide a basis for excluding it. These contradictions related to the ultimate assessment of the actual probative value of the testimony and were a matter for the trier of fact to assess. In Khelawon, Charron J., while disapproving of the discussion in Hawkins that categorized factors as relevant to either threshold or ultimate reliability, stated that the case "exemplifies where the line should be drawn on an inquiry into threshold reliability": at para. 92. She continued:

When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement's truth and accuracy, there is no need to inquire further into the likely truth of the statement. That question becomes one that is entirely left to the ultimate trier of fact and the trial judge is exceeding his or her role by inquiring into the likely truth of the statement. When reliability is dependent on the inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not -- recall U. (F.J.).

[22] Applying the functional approach of Khelawon to this case, the particular danger raised is that the appellant had no opportunity to conduct a contemporaneous cross-examination of the complainant when she made her video statement. In my view, this danger is sufficiently overcome by the availability of the complainant to be cross-examined at trial together with those attributes of the statement that led the trial judge to admit it under B. (K.G.). As Charron J. said at para. 66 of Khelawon"the availability of the [page488] declarant for cross- examination goes a long way to satisfying the requirement for adequate substitutes". The remainder of the way is provided by the complete and accurate video record of her statement in which her demeanour could be observed and by the trial judge's conclusion that there was an adequate substitute for an oath.

[23] I would conclude that the danger posed by the hearsay is sufficiently overcome in this case. The complainant's recantation at trial, K.'s denial that the complainant had made a report to him, and the doctor's testimony were all matters to be considered in determining the statement's ultimate reliability at the trial. Since there was a sufficient basis for assessing the video statement's truth and accuracy, it was unnecessary for the trial judge to "inquire further into the likely truth of the statement" by considering this additional evidence at the threshold stage.

[24] I would conclude that the trial judge did not err in not considering contradictory evidence in determining the hearsay statement's admissibility. The appellant has not shown any basis for interfering with the trial judge's decision to admit the statement.

Issue two: Standard of proof

[25] The trial judge was faced with two contradictory stories by the complainant. In her video statement to the police, described above, the complainant stated that she was sexually abused by her father. At trial, she said she had lied to the police because she was nervous, scared, and did not trust the CAS intake worker. She testified that she made up details, such as her father wearing a condom, in order to avoid undergoing physical tests. The trial judge commented that the complainant offered both versions with the same apparently credible demeanour. Both on the video and in court she testified calmly and answered questions naturally and without hesitation.

[26] In choosing to believe what the complainant said on the video, the trial judge committed several analytical errors. The most significant of these is that he did not properly apply R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397. These errors require that the appeal be allowed.

[27] First, the trial judge noted that on the video the complainant claimed she told 14 classmates and a family friend, K., about the abuse. She offered specific names, and this the trial judge reasoned, indicated she was telling the truth. He said:

[I]t would be ridiculous not to expect, and it's inconceivable that she could not expect that somebody in those names is going to be contacted. That does not advance a lie. That bespeaks of speaking the truth. [page489]

[28] This reasoning is faulty. The same rationale could be applied to indicate her testimony in court was the truth. When the complainant denied in court that she had ever disclosed allegations of sexual abuse to any of the persons she had named in the video statement, she would expect a lie to be easily exposed. It is inconceivable she would not expect the police to contact the named persons to prove her denial in court was a lie. Thus this reasoning can be applied to both the video statement and the testimony in court. If anything, the reasoning would favour preferring the trial testimony. The Crown did not call any person named by the complainant on the video statement to testify. The defence called K. whose testimony was consistent with the complainant's evidence at trial.

[29] I would conclude the trial judge erred by employing this reasoning to believe the video statement.

[30] Second, while he described it as a minor factor at one point, the trial judge focused on the fact the complainant had no motive to fabricate the allegations of sexual abuse. He said:

Not that there necessarily needs to be a reason for anyone to tell a lie, whether she's a 13-year-old saying "I lied about what my father did to me", neither her nor her father nor is there any piece of evidence that would logically lead to any reasonable or even unreasonable view from a 13-year-old as to why there would be any motivation to make up what are obviously very serious matters . . .

[31] The trial judge observed that the complainant had no reason to fabricate allegations of sexual abuse. He said "there was no reason that I could glean from any of the evidence, inferentially or otherwise, as to why this lie would be made up". Although lack of a motive to lie is a factor that can be considered in assessing the credibility of a witness, the trial judge appears to have used it as the reason for concluding that she was telling the truth without testing her credibility and reliability in light of all of the evidence presented at trial.

[32] While the trial judge referred to R. v. W. (D.), in my view it is apparent he did not apply it. Upon explaining that he accepted what the complainant said in her video statement he said:

I accept that as being reliable evidence and if it's necessary, to reject [K.'s] evidence and of course the accused's evidence is implicitly and I'm clearly rejecting it because of my acceptance of the video recordings for the reasons I gave.

[33] This passage suggests that the trial judge engaged in the forbidden reasoning discussed in R. v. Maharaj (2004), 2004 39045 (ON CA), 71 O.R. (3d) 388, [2004] O.J. No. 2001, 186 C.C.C. (3d) 247 (C.A.) at para. 30 [leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 340], by believing that his acceptance of the video statement as reliable [page490] inevitably led to a rejection of the appellant's evidence beyond a reasonable doubt. As noted in Maharaj, at para. 30"This reasoning is forbidden because it appears to shift the burden of proof on to the appellant to explain away the complainant's evidence."

[34] This was not a strong Crown case. The Crown relied almost exclusively on the video statement of the complainant. Though the trial judge accepted the statement as reliable, he ought to have considered whether the appellant's testimony at trial, the testimony of K. and the family doctor and the evidence that many of the alleged assaults occurred with the complainant's brother in the room raised a reasonable doubt. In his reasons the trial judge never did conclude that the Crown had proved the charges against the appellant beyond a reasonable doubt.

[35] Due to the trial judge's flawed reasoning and failure to properly apply the principle from W. (D.), I would allow the appeal.

D. Disposition

[36] I would therefore set aside the convictions that were entered and order a new trial. In view of this disposition, it is unnecessary to deal with the appellant's sentence appeal.

Appeal allowed.