W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. J.M., 2010 ONCA 117
DATE: 20100211
DOCKET: C48799
COURT OF APPEAL FOR ONTARIO
Simmons, Rouleau and Watt JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
J.M.
Applicant/Appellant
Paul Calarco, for the appellant
Karen Shai, for the respondent
Heard: July 23, 2009
On appeal from convictions of sexual interference and invitation to sexual touching entered by Justice Jane E. Ferguson of the Superior Court of Justice, sitting without a jury, dated January 30, 2008.
Watt J.A.:
[1] From early January 2004 until September 2005, L.S. lived in a temporary foster placement in the home of L.M. L.S. left L.M.’s home when she (L.S.) was adopted.
[2] Z.S. became a temporary foster placement in L.M.’s home in October, 2005, and remained there until February, 2006.
[3] L.S. and Z.S. are not related and never lived together in temporary foster care in L.M.’s home. L.S. and Z.S. did not know each other.
[4] J.M. is L.M.’s father, known to L.M.’s children, L.S. and Z.S., as “papa” or “foster papa”.
[5] L.S. and Z.S. said that J.M. sexually abused them during their temporary foster placement at L.M.’s house. J.M. denied all allegations of sexual impropriety.
[6] The judge who presided at J.M.’s trial rejected J.M.’s denial and found him guilty of each of six counts: two of sexual assault, three of sexual interference and one of invitation to sexual touching. The judge entered Kienapple stays on the sexual assault counts and one count of sexual interference, and recorded convictions on two counts of sexual interference and one of invitation to sexual touching.
[7] J.M. (the appellant) appeals his convictions on two discrete grounds. He alleges judicial error in the admission of three out-of-court statements by Z.S., who did not testify as a witness at trial, and in the use of the evidence of each complainant as evidence of similar acts on the count(s) relating to the other.
[8] For the reasons that follow, I would dismiss the appeal.
THE BACKGROUND
The Charges
[9] The appellant was charged with six counts of sexual offences, four relating to L.S. and two relating to Z.S. The L.S. counts, sexual assault, sexual interference (two counts) and invitation to sexual touching, involved acts of vaginal fondling and a single allegation of fellatio, beginning in January 2004 and ending in late September 2005. The Z.S. counts, allegations of sexual assault and sexual interference, related to three incidents of vaginal fondling between the end of October 2005 and the end of February 2006, shortly before the appellant’s arrest.
The Trial Proceedings
[10] At the outset of the appellant’s trial, the prosecutor tendered evidence of an interview of the appellant by the investigating officer and three statements of Z.S. to her CAS worker and the investigating officer.
[11] The trial judge excluded the appellant’s police interview but admitted Z.S.’s statement to her CAS worker and her two videotaped interviews by the investigating officer. The admission of these out-of-court statements is the principal ground of appeal.
[12] The appellant did not apply for severance at the opening of trial, nor did the prosecutor apply to have the evidence of each complainant admitted as evidence of similar acts on the counts relating to the other complainant. The similar act application was made by the prosecutor after both counsel had made their closing submissions.
[13] The trial judge ruled on the admissibility of the out-of-court statements of Z.S. at the conclusion of the voir dire conducted at the beginning of the trial. The ruling on the similar act application forms part of the reasons for judgment delivered about seven weeks after final argument.
THE GROUNDS OF APPEAL
[14] Mr. Calarco advances two grounds of appeal. Each ground has to do with the admission or use of evidence that is generally presumptively inadmissible in a criminal case.
[15] The first ground of appeal asserts error in admitting evidence of Z.S.’s statement to her CAS worker and two videotaped interviews of Z.S. by the investigating officer. The appellant says that the trial judge applied the wrong principles in determining the reliability of the police interviews and failed to provide sufficient reasons to permit meaningful appellate review of her decision to admit Z.S.’s disclosures to her CAS worker.
[16] The second ground of appeal challenges the correctness of the trial judge’s determination to apply the evidence of each complainant as evidence of similar acts in determining whether the allegations of the other complainant had been proven beyond a reasonable doubt. According to the appellant, the evidence was simply evidence of general propensity with minimal probative value on any contested issue and significant prejudicial effect. Here, as well, the reasons of the trial judge are so sparse, the appellant asserts, that they do not permit meaningful appellate review.
First Ground of Appeal: The Admissibility of the Hearsay Statements of Z.S.
Background
[17] Z.S. first disclosed the appellant’s conduct to Jeff Laforet, her CAS worker, in February 2006. Laforet notified Z.S.’s foster parents, L.M. and her husband, immediately. The foster parents agreed to ensure that the appellant would not visit their home while the police investigation was ongoing.
[18] The police investigation began shortly after Z.S. disclosed the appellant’s conduct to Laforet. A police officer interviewed Z.S. on March 7, 2006, and again on March 23, 2006. Both interviews were videotaped and later transcribed.
The Evidence of the Voir Dire
[19] The prosecutor did not tender Z.S. as a witness on the admissibility inquiry. The recipients of the statements, Laforet and a police officer, testified on the voir dire. A psychologist, who was treating Z.S., gave evidence on the issue of necessity.
The Evidence on Necessity
[20] The principal evidence introduced to satisfy the necessity requirement was the report and testimony of Dr. Anita Halpern, a psychologist. The testimony of Jeff Laforet, Z.S.’s CAS worker, and the videotaped interviews were also available to assist in the determination of the necessity requirement.
[21] At the time of trial, Z.S. was nine years old. She was a highly-traumatized child who had struggled and continued to struggle with significant emotional distress, the product of a long history of abuse and neglect. Behavioural dyscontrol was a prominent feature of her condition. Child protection authorities devoted a wide range of treatment resources to help Z.S. She lived in a staff-model home and went to school with extra staff. Her community activities were closely supervised, her needs monitored with equivalent care. She received weekly, individualized psychotherapy. Indications of cognitive impairment emerged.
[22] Dr. Halpern expressed her opinion about the likely effect the experience of testifying would have on Z.S. Giving testimony would overtax Z.S.’s already-limited coping skills and detrimentally affect her daily functioning. Her behaviour would likely deteriorate. Z.S. would be unable to manage her anxiety, distress and other destabilizing feelings. Her interaction with others would be strained. The experience of testifying would likely re-traumatize Z.S. and undermine the trust and security she was striving to form with her caregivers.
The Evidence on Reliability: The CAS Statement
[23] As a result of Z.S.’s unavailability for cross-examination at trial, the prosecutor relied upon the circumstances in which the tendered statements were made to satisfy the reliability requirement of the principled exception to the hearsay rule. The circumstances of each were different.
[24] On February 27, 2006, Jeff Laforet was driving Z.S. and her brother back to her foster parents. Z.S. was in the back seat of the car. Laforet asked Z.S. why she had been walking around her foster home naked. Z.S. explained that she had only removed her pyjamas at night when she became too hot in bed.
[25] Z.S. explained to Laforet that she (Z.S.) had seen her (biological) mother sleeping naked and having sex with a variety of men, including her mother’s alleged partner. Z.S. recounted that her mother had slept naked with and touched Z.S.’s privates.
[26] Jeff Laforet asked Z.S. whether anybody else had touched her privates. Z.S. said that her foster papa, the appellant, had touched her privates three times: once when the appellant was babysitting at the home of Z.S.’s foster parents, a second time when Z.S. visited the appellant’s home, and a third time as Z.S. and the appellant sat on a couch when the appellant touched Z.S. under a pillow.
[27] Z.S. explained that the appellant had touched her “lower privates”. The appellant rubbed his hand on her privates in the bedroom when the appellant was babysitting the children at L.M.’s house. The appellant touched Z.S. when Z.S. was visiting the appellant’s home and no one else was around. The pillow incident occurred at L.M.’s house when Z.S. and the appellant were watching television from a couch with a pillow on Z.S.’s lap. The appellant told Z.S. that if she told anyone about the touching, she (Z.S.) would be removed from L.M.’s home and be separated from her brother who also lived there in a temporary foster placement.
[28] Jeff Laforet considered that he had a very good relationship with Z.S. Her disclosure was “totally free-form”. She was forthcoming, candid and openly shared this information with Laforet who asked no questions and sought no details about time, place or other circumstances. Laforet explained to Z.S. that she was not in trouble for being naked in her foster home, but that the rules of the house were that she was not to be unclothed. Z.S. “pinky swore” that she would follow the rules.
[29] When Laforet returned Z.S. to the foster home, he advised the foster parents of her disclosure. They agreed that the appellant would not visit Z.S.’s foster home while Z.S. and her brother were there. Laforet made notes of his conversation with Z.S. when he arrived home, about 20 minutes after he had left Z.S.’s foster home and had discussed the disclosure with her foster parents. He considered that his notes of the conversation were very accurate, since it is part of the expectation of the CAS that workers keep accurate notes of their involvement with children.
[30] Jeff Laforet did not discuss with Z.S. the need for her to tell the truth or “pinky swear” to confirm that she had done so. Laforet did not ask Z.S. to promise to tell the truth because he thought that it was unnecessary for him to do so. He considered Z.S. to be truthful.
The Evidence on Reliability: The Police Interviews
[31] Detective Emmanuel Iheme interviewed Z.S. twice about her allegations. Both interviews, which took place on March 7 and March 23, 2006, were videotaped and transcribed. Each interview took place in a “soft” room, an 8-foot by 10-foot room at the police station furnished to resemble a living or sitting room. Z.S. was escorted to the room by child protection workers. Z.S. was friendly and spoke clearly. She was not threatened, promised anything or told what to say.
[32] The principal interview upon which the prosecutor relied at trial occurred on March 7, 2006. As the interview began, Z.S. explained to the officer the circumstances in which she came to be placed in her foster home: it was after she had told Jeff (Laforet) about the appellant touching her at L.M.’s house. Jeff asked whether anyone had touched her, so she “just told him” what had happened. Z.S. pointed out “I’m not supposed to lie to my worker”.
[33] Z.S. recounted three separate incidents of touching by the appellant. The first incident she recalled occurred when the appellant was babysitting the children at L.M.’s house. As Z.S. lay on top of a sleeping bag that the appellant had put on the bed of a lower bunk, the appellant touched and rubbed her privates with both hands. Z.S. explained to the officer that it was “not really nice to lie when people ask you a question. They want the right answer.” Z.S. confirmed that her account was true. She knew that it was “bad to lie”, “important to tell the truth” and that she could get in trouble for lying.
[34] Z.S. also told Det. Iheme about an incident that had occurred when she was watching television at the appellant’s home. Z.S. lay down under a blanket. The appellant put his arm around Z.S., then put his hand under the blanket and touched her “pee hole” with his hand. Z.S. did not tell Jeff Laforet about this incident because she had forgotten about it.
[35] The final incident Z.S. described in her police interview emerged after Det. Iheme asked whether Z.S. recalled having told Jeff Laforet “about something to do with a couch and … a pillow” at L.M.’s house. When Z.S. indicated that she couldn’t remember the conversation with Laforet, Det. Iheme asked:
Emmauel: ... Do you remember talking to him about sitting on the couch and you had somebody put a pillow on your legs or a cushion over your legs?
[36] Z.S. then described the incident adding further details about the circumstances to what the officer had mentioned in his question.
[37] Z.S. explained her understanding of the difference between a good touch and a bad touch. She denied that Jeff Laforet had asked her anything about walking around the house naked. L.M. had mentioned it to Jeff. Z.S. admitted removing her shirt under the covers of the bed because she was hot at night. One of L.M.’s children pulled the blanket off Z.S., noticed that she was wearing no pyjama top, told L.M. and L.M. reported this event to Jeff Laforet.
The Positions of the Parties on Appeal
[38] The submissions of Mr. Calarco for the appellant invoked basic principle. Out-of-court statements made by persons not called as witnesses at trial are presumptively inadmissible when offered by a party to prove the truth of what was said. In limited circumstances, these statements may be admitted as evidence of the truth of their contents. They may be admitted if they meet the requirements of an established exception to the hearsay rule. Or they may be admitted under the principled approach to hearsay if the statements are necessary and reliable.
[39] The appellant says that no established hearsay exception permits the reception of evidence of the statements of Z.S. to her childcare worker or to the investigating officer. Nor can the principled exception sponsor their admission for want of reliability.
[40] Mr. Calarco argues that the authorities governing the principled approach to the exceptional admission of hearsay may be divided into two groups depending upon the nature of the statement tendered for reception. The first group, which includes detailed, lengthy, videotaped statements offered when a witness holds the truth hostage, follows the lead of R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740. The second group, invoked for spontaneous brief utterances, applies where the declarants cannot testify, usually for reasons of their death or other circumstances beyond the party’s or witness’s control. These statements are governed by R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 and their descendants. Despite some overlap between them, Mr. Calarco contends that the two groups or categories are very different in scope and must not be confused.
[41] The appellant says that the trial judge failed to appreciate the distinction between these two discrete paths to admissibility, applied the wrong considerations and reached an incorrect result. The police statement was lengthy. Cross-examination upon it would almost certainly have revealed inconsistencies. The trial judge applied the Khan/Smith line of authorities to this statement. B. (K.G.) was the appropriate standard in light of the length of the statement and the unavailability of the declarant for cross-examination. A videotaped police interview is not a substitute for the traditional methods of testing evidence. To dilute the reliability requirement invites proof by videotape, an undesirable and unnecessary method of determining the validity of allegations for crime.
[42] Mr. Calarco submits that the disclosure by Z.S. to Jeff Laforet should also have been excluded. The statement was not spontaneous, rather responsive to a leading question. Laforet made no contemporaneous notes and did not provide Z.S. with any instruction about the need for truthfulness and the consequences of falsity. No independent evidence confirmed or corroborated the truth of the allegations.
[43] The appellant makes one final point about the reasons of the trial judge in ruling the statement and interviews admissible. The reasons, he submits, are conclusory, lacking any real analysis of how the circumstances in which the statements were made and interviews conducted satisfied the reliability requirements for the principled exception. Accuracy in recording is not a surrogate for reliability.
[44] Ms. Shai for the respondent rejects the distinction the appellant sets up among the authorities that govern the principled exception to the hearsay rule. This distinction simply reinvigorates, on another basis, the pigeon-hole approach to admissibility of which the principled approach rid us. A distinction based on length? Or manner of recording? Or the position of the recipient?
[45] The respondent says that, in the end, a party who invokes the principled approach to justify the exceptional admission of hearsay must satisfy the requirements of necessity and reliability. Necessity is conceded here: the declarant could not and did not testify. Reliability was the only controverted issue. Threshold reliability, not ultimate reliability, the issue to which the appellant’s claim of the need for cross-examination to explore inconsistencies relates.
[46] Ms. Shai reminds that the reliability requirement may be met by the circumstances in which the statement was made or because the truth and accuracy of the statement can be sufficiently tested. Flexibility, not rigidity, is the hallmark of the principled approach. In the absence of the declarant, the circumstances in which the statements were made operate as surrogates for traditional methods of truth-testing.
[47] The respondent contends that the circumstances in which Z.S. disclosed the appellant’s abuses to Jeff Laforet satisfy the reliability requirement. The statement was spontaneous and detailed. Laforet made accurate notes as his employment required him to do. He asked no questions. In her later police interview, Z.S. confirmed her understanding of the difference between the truth and a lie and made it clear that she did not lie to her worker. To some extent, her statement was confirmed by L.S.
[48] Ms. Shai further submits that the circumstances in which the police interview was conducted established its threshold reliability. The interview was conducted by a police officer, in a police station, during an investigation into allegations that Z.S. had made to her CAS worker. The officer asked no leading questions. The declarant demonstrated her understanding of the difference between the truth and a lie. The interview is videotaped.
[49] The respondent acknowledges that the reasons of the trial judge for admitting the out-of-court statements of Z.S. could have been fuller, more analytical than conclusory. But the record fully justifies the conclusion reached and permits adequate appellate review of the single controverted issue.
The Governing Principles
[50] The first ground of appeal questions the correctness of the trial judge’s ruling that the out-of-court statements of Z.S. were sufficiently reliable to permit the reception under the principled exception to the hearsay rule and the adequacy of the trial judge’s reasons for her conclusions. A proper determination of the validity of each complaint requires brief elucidation of the governing principles.
The Reliability Requirement
[51] The central reason for the presumptive exclusion of hearsay is the general inability to test the reliability of hearsay statements. The absence of the hearsay declarant from the courtroom may make it impossible to inquire into the declarant’s perception, memory, narration or sincerity. The declarant’s absence also makes it difficult for the trier of fact, whether judge or jury, to assess what weight, if any, to assign to a statement made by a person whom the trier of fact has not seen or heard and who has not been cross-examined, like other witnesses, in the presence of the trier of fact: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 at paras. 2, 35.
[52] The reliability requirement in the principled approach to the exceptional admission of hearsay is aimed at identifying those cases in which the general inability to test the reliability of the statement has been sufficiently overcome to justify reception of the evidence: Khelawon at para. 61.
[53] The proponent who seeks exceptional admission of hearsay usually meets the reliability requirement in two different ways. One way is to show that there is no real concern about the truth of the hearsay statement because of the circumstances in which the statement came about. The second way of satisfying the reliability requirement is to show that no real concern arises from the fact that the statement is offered in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested in the proceedings: Khelawon at paras. 61-63; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 80, 88. These approaches are not mutually exclusive: Khelawon at para. 65.
[54] The proponent of a hearsay statement who attempts to satisfy the reliability requirement on the basis of the circumstances in which the statement was made does not have the luxury of scrolling down a fixed and exhaustive list of factors. Relevant circumstances include, but are not limited to:
i. the timing of the statement in relation to the event reported;
ii. the absence of a motive to lie on the part of the declarant;
iii. the presence or absence of leading questions or other forms of prompting;
iv. the nature of the event reported;
v. the likelihood of the declarant’s knowledge of the event, apart from its occurrence; and
vi. confirmation of the event reported by physical evidence.
Khelawon at para. 67. The inquiry involves a functional approach to consider whether the circumstances in which the statement was made have sufficiently allayed concerns about perception, memory, sincerity and narration, the traditional and inherent hearsay dangers.
[55] The controlling authorities make it clear that to qualify for admission under the principled exception to the hearsay rule, the proffered statement must satisfy the requirements of necessity and reliability. Where the hearsay statements proffered as substantive evidence are prior inconsistent statements of a non-accused witness, the reliability and necessity factors must be adapted and refined to suit the context: B. (K.G.) at p. 783. The focus of the reliability inquiry in the case of prior inconsistent statements proffered as substantive evidence is on the comparative reliability of the prior statement and the trial testimony. And so it is that some indicia and guarantees of reliability beyond those outlined in Khan and Smith must be secured to bring the prior statement to a comparable standard of reliability before its reception as substantive evidence: B. (K.G.) at pp. 787-88.
[56] The decisions in Khan and Smith establish that hearsay evidence will be substantively admissible as an exception to the hearsay rule when it is both necessary and sufficiently reliable. The requirements of necessity and reliability are to be interpreted flexibly, in the circumstances of each case, to ensure that the principled approach does not itself become a rigid, pigeon-holing analysis: R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at para. 35.
[57] B. (K.G.) represents an application of the principles articulated in Khan and Smith to a specific branch of the hearsay rule – the rule against substantive admission of prior inconsistent statements. B. (K.G.) does not create a categorical exception based on fixed criteria: Khelawon at para. 45; U. (F.J.) at para. 35. The primary distinction between Khan and Smith, on the one hand, and B. (K.G.), on the other, is that in B. (K.G.), the declarant is available for cross-examination: U. (F.J.) at para. 35; Khelawon at para. 84; R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at paras. 22, 23.
The Requirement of Reasons
[58] The trial judge’s duty to provide reasons is satisfied by reasons that are sufficient to serve the purposes for which the duty is imposed. The decision, in the circumstances, must be reasonably intelligible to the parties and provide a basis for meaningful appellate review of the correctness of the decision: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55.
[59] We are to take a functional substantive approach to sufficiency of reasons. We are to read them as a whole, in the context of the evidence, the arguments and the trial with an appreciation of the purposes or functions for which they were delivered. The basis for the decision must be intelligible, in other words, capable of being made out: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 35. The same principles should apply to rulings on admissibility, at the very least where the ruling admits evidence that constitutes the full weight of the prosecutor’s proof of a charge.
The Principles Applied
[60] The task of the trial judge in connection with this issue was to determine whether the out-of-court statements of Z.S., or any one or combination of them, satisfied the necessity and reliability requirements of the principled exception to the hearsay rule.
[61] The appellant finds no fault with the trial judge’s conclusion that the necessity requirement had been met. Z.S. was unable to testify. The psychological assessment of Z.S. and the testimony of Dr. Halpern made it clear that Z.S. would likely be re-traumatized if required to testify in court. Z.S. had very limited coping skills. Testifying would cause her behaviour to deteriorate. She would be unable to manage her anxiety, distress and other destabilizing feelings. Behavioural dyscontrol would likely occur. The trial judge did not err in concluding that the standard of reasonable necessity had been met.
[62] The nucleus of the appellant’s complaint about the reliability finding of the trial judge is that she applied the wrong principles in reaching her conclusion. She examined the reliability requirement by following the mandate of Khan and Smith, rather than that of B. (K.G.). Instead of examining the circumstances in which the statements were made to determine whether they were sufficiently reliable to warrant admission, the trial judge should have considered the absence of adequate methods of testing their reliability and should have concluded that they did not meet the reliability standard.
[63] Setting to one side for the moment the companion argument about inadequate reasons, I am satisfied that the approach to reliability followed by the trial judge was correct. I reach my conclusion for several reasons.
[64] First, as a matter of general principle, where the adjective law permits alternative routes to admissibility for evidence that is relevant and material, we leave it to the proponent of the evidence to choose the basis upon which she or he rests the case for admissibility, and to the judge to decide whether the prerequisites to the chosen basis of admissibility have been established. It is no answer for the opponent to say that the requirements of some other basis of admissibility would not have been met, thus the proponent’s case for admissibility must fail. For example, just because a business record would fail to achieve admissibility under s. 30 of the Canada Evidence Act does not result in exclusion where the common law exception has been satisfied.
[65] Second, under the principled exception to the hearsay rule, the prerequisites to admissibility of an out-of-court statement for its truth are necessity and reliability. It is well-settled that the requirement of reliability may be met on the basis of two different grounds. Neither excludes consideration of the other. Sometimes, the circumstances in which the hearsay statement came about make it sufficiently reliable that contemporaneous cross-examination would add little, if anything, to the process. In other instances, the evidence may not be so cogent, but the circumstances allow for sufficient testing of the evidence by means other than contemporaneous cross-examination: Khelawon at paras. 49, 62, 63; Couture at para. 80; Devine at para. 22. These grounds are simply means or ways of establishing reliability, not stand-alone or categorical exceptions to the exclusionary rule.
[66] The appellant says that the B. (K.G.) regime should have been applied to resolve the reliability issue at least in relation to the police interviews. These were lengthy statements, the appellant says, rich in cross-examination potential to test inconsistencies. It is not the length of the statement, nor the manner of its recording, however, that engages the principles of B. (K.G.). To determine whether hearsay should be admitted under the principled exception, more particularly following the regime of B. (K.G.) because of the length of the statement would be to beat a hasty retreat from principle and flexibility, on the one hand, to pigeon-holes and rigidity, on the other.
[67] The decision in B. (K.G.) adapted the necessity and reliability criteria of Khan and Smith to very limited and special circumstances: the rule against introduction of the prior inconsistent statements of a non-accused witness as substantive evidence. It is clear from B. (K.G.) itself and other cases that follow its lead that B. (K.G.) applies only where the proponent attempts to introduce the prior inconsistent statement of the declarant, a witness in the proceedings, as substantive evidence. The declarant is available for cross-examination on both his or her trial evidence and the prior inconsistent statement: U. (F.J.) at para. 35; Khelawon at para. 84; Devine at paras. 22, 23. That is simply not this case. Z.S. did not testify. The statements were not offered as prior inconsistent statements for substantive purposes. The trial judge did not err in failing to hew to the B. (K.G.) analysis to determine reliability.
[68] The decision on reliability involves the application of the controlling principles to the evidence adduced on the issue. While different factors are at work in connection with the out-of-court statement to Laforet than in the case of the police interviews, I am satisfied that the trial judge’s conclusion was supported by the evidence.
[69] Z.S. had no motive to lie. This was not a case, as are many, where interfamilial discord may spawn unfounded, retaliatory allegations. The disclosure was not prompted by leading questions or other suggestive techniques. Z.S. appears to have an understanding of the difference between the truth and a lie, and the obligation to tell the truth, especially to her CAS worker, Jeff Laforet. In the police interview, Z.S. was fully aware that she was speaking to a police officer involved in an investigation. The police interviews were videotaped, which permitted the trial judge first-hand access to the declarant’s memory, narration and apparent sincerity.
[70] The most troubling aspect of this first and principal ground of appeal is the somewhat casual approach the trial judge took to her obligation to provide reasons for her decision on admissibility.
[71] The trial judge noted that the reliability requirement referred to threshold not ultimate reliability and required proof on a balance of probabilities. She then concluded:
I heard the evidence from Jeff Laforet. He was the C.A.S. worker and was in the car with [Z.] when she made the disclosure. He made his notes later that day. I also saw the videotaped interviews with Detective Iheme. The interviews were appropriate and complete. The videos established this.
I am satisfied that on a balance of probabilities the statements are reliable. As a result of the finding of necessity and reliability the three statements made by [Z.S.] are admitted into evidence at the trial for the truth of their contents.
[72] The issue to which the reasons relate is the admissibility of out-of-court statements of a nine-year-old complainant who was not summoned as a witness in the proceedings. The principles governing admissibility are well-established. The evidence that was relevant to proof of the prerequisites to admissibility was neither complex nor controverted. Detective Iheme was not cross-examined. The principal source of evidence on threshold reliability of the videotaped interview was the videotape itself.
[73] Stripped to its essentials, the appellant’s complaint about the trial judge’s reasons on this issue of admissibility is that the reasons lack detail. What the authorities require is that the reasons, read in context of the record and the submissions of counsel on the live issues, show that the trial judge has seized the substance of the matter: M. (R.E.) at para. 43. No fixed quantum of detail is required. The issue is not whether more detail could have been provided. Doubtless so. Was it enough? In the circumstances of this case, the reasons were adequate.
[74] I would not give effect to this ground of appeal.
Second Ground of Appeal: Wrongful Reception and Use of Evidence of Similar Acts
Background
[75] The six counts included in the indictment related to two complainants. L.S. was the complainant named in four counts, Z.S. in the remaining two counts. Counsel for the appellant at trial (not Mr. Calarco) did not apply at any time for an order that the counts relating to each complainant be tried separately by a different judge sitting without a jury.
[76] In her final submissions, as an alternative to her main argument that the evidence of each complainant proved the essential elements of each count relating to that complainant, the prosecutor (not Ms. Shai) submitted that the trial judge could apply the evidence of each complainant to the counts relating to the other complainant to complete the prosecutor’s proof of individual counts.
[77] In her alternative submissions to the trial judge, the prosecutor identified several issues to which the evidence of each complainant was relevant in completing the prosecution’s proof of the other counts:
i. proof of the actus reus of the offences charged;
ii. rebuttal of any claim of collusion or concoction;
iii. rebuttal of any “defence” of innocent association, accident or lack of intent;
iv. support for the credibility of each complainant; and
v. proof of a pattern of behaviour in similar circumstances.
[78] Counsel for the appellant at trial submitted that similar act principles should not be invoked to permit the use of the evidence of each complainant on the counts relating to the other. The probative value of the evidence on the issues on which the prosecutor sought its application, according to trial counsel, was outweighed by its prejudicial effect.
The Decision of the Trial Judge
[79] The trial judge included her ruling on the prosecutor’s similar act application in her reasons for judgment delivered about seven weeks after final argument.
[80] In her reasons, the trial judge reviewed the evidence given by the various witnesses, including the testimony of the complainants and the appellant. After reciting the positions taken by the parties, the trial judge concluded:
[76] I do not believe or accept Mr. [M.]’s evidence. He was not direct and forthright in his testimony. Furthermore, he was often evasive. He did not answer direct questions which could have been answered with a “yes” or “no”. He was argumentative on points that did not require argument. He testified in a way to set up an agenda to try and convince the court that he did not commit these offences. He is not lacking intelligence. He changed his evidence to suit his purpose. He gave answers that did not make sense. He was not credible. I reject Mr. [M.]’s evidence in its entirety. I do not believe him and I am not left with any reasonable doubt that Mr. [M.] committed the offences as set out in the indictment.
[77] Credibility was obviously the key issue. In finding Mr. [M.] guilty of all counts in the indictment, I have assessed his evidence, the complainants’ evidence, the demeanor of the witnesses, the lack of any motive to fabricate and the inconsistencies in the complainants’ evidence. I have considered the reliability of the complainants’ testimony in light of Mr. [M.]’s evidence. I do not believe Mr. [M.] and have no reasonable doubt that he committed these offences. I have applied the analysis as set out in W. (D.) in reaching this conclusion.
[81] The trial judge then turned to the similar act application and concluded that the evidence could be applied across counts to complete proof of whether the conduct alleged actually occurred.
The Positions of the Parties on Appeal
[82] According to Mr. Calarco, the conduct here was not legally capable of amounting to evidence of similar acts and thus incapable of invoking the exception to the presumptive inadmissibility of that evidence. At best, the similarities among the allegations were generic, not rising above the commonplace seen in such cases. The only issue to which the evidence could relate was proof of the actus reus alleged in relation to the other complainant. But what is required when similar acts are offered to prove actus reus, namely a persuasive degree of connection capable of supporting the essential double inferences, was lacking here. The evidence failed to show any repetitive or predictable conduct in similar circumstances.
[83] Mr. Calarco further submits that what happened here was that the trial judge invoked similar act principles to support the credibility of each complainant. To do so is to cast the relevance net too wide. Use of the alleged similar acts as a credibility enhancement vitiates the findings of guilt in relation to each complainant.
[84] For the respondent, Ms. Shai begins with a submission that a fair reading of the trial judge’s reasons for judgment makes it clear that she found the appellant’s guilt established on all counts without consideration of the evidence of similar acts. It follows, she contends, that the correctness of the trial judge’s decision about evidence of similar acts does not require examination here.
[85] Ms. Shai advances an alternative argument in support of any judicial reliance upon similar act principles to find guilt established. She says that the other counts’ evidence was properly received as circumstantial evidence to assist in completing proof of the actus reus of the counts relating to the other complainant. The judge applied the proper test, engaged in no prohibited reasoning and did not use the evidence to support the complainant’s credibility. Deference is warranted and puts paid to the appellant’s complaint.
The Governing Principles
[86] The manner in which the similar act application was advanced by the Crown and determined by the trial judge in her reasons for judgment renders unnecessary any forced march through the murk of jurisprudence about the admissibility and trier of fact use of evidence of similar acts. Some brief discussion is nonetheless appropriate.
[87] To begin, the evidence relied upon as evidence of similar acts was evidence properly admissible in its own right. The allegedly similar acts were not extrinsic to the offences charged. It seems reasonable to conclude that, even if the trier of fact had been a jury, the prospect of an inference of guilt from bad personhood, the moral prejudice of R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 31, seems substantially attenuated where the alleged similar acts are other counts similar acts rather than other conduct outside the allegations in the indictment.
[88] Second, the presumptive inadmissibility of evidence of similar acts reflects the general prohibition of the law against the use of character evidence as circumstantial proof of conduct, thus guilt: Handy at para. 31. The prohibition guards against reasoning prejudice (confusion because of evidence of multiple incidents and consequent unwarranted reliance on often suspect evidence about the offence(s) charged) and moral prejudice (findings of guilt based on bad personhood). In trials by judge alone, like this case, the danger that a conviction will be rooted in either reasoning or moral prejudice is significantly lessened: R. v. B. (T.) (2009), 2009 ONCA 177, 95 O.R. (3d) 21, at paras. 28-30; R. v. Cresswell, [2009] ONCA 95, at para. 10; R. v. MacCormack, [2009] ONCA 72, at paras. 56, 68, 69.
[89] To overcome the rule that holds evidence of similar acts presumptively inadmissible, the prosecutor must satisfy the trial judge on a balance of probabilities that, in the specific context under consideration, the probative value of the evidence in relation to a particular issue outweighs its potential prejudice, thus warrants its reception: Handy at para. 55; R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 33; Cresswell at para. 9.
[90] The theory that underlies the similar act rule rests largely on the improbability of coincidence. The alternative explanation of collusion destroys probative value, yet it is singular by its absence in this case. The complainants were never foster placements at L.M.’s house at the same time and did not otherwise know each other.
[91] The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proferred and the other evidence in the case: Handy at para. 78. Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence of similar acts may arise from the repetitive and predictable nature of an accused’s conduct in closely defined circumstances. What becomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences: Shearing at paras. 48 and 50. The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred.
The Principles Applied
[92] The manner in which the prosecutor ran her case at trial was that the evidence of each complainant, L.S. and Z.S., proved the allegations each made beyond a reasonable doubt without the need for recourse to evidence of similar acts. The trial judge approached the case in the same manner and concluded that the evidence established the guilt of the appellant on each count. In reaching this conclusion, the trial judge did not rely on evidence of similar acts. It follows, in my view, that the correctness of the trial judge’s ruling on admissibility, thus her reliance on evidence of similar acts to complete proof across counts, is of no consequence to the decision on this appeal.
[93] This ground of appeal fails.
CONCLUSION
[94] For these reasons, I would dismiss the appeal from conviction. The appellant did not pursue his appeal against sentence. I would dismiss his appeal from sentence as an abandoned appeal.
RELEASED: February 11, 2010 “PR”
“David Watt J.A.”
“I agree Janet Simmons J.A.”
“I agree Paul Rouleau J.A.”