WARNING 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) , (2.1) , (2.2) , (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .
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 .
COURT OF APPEAL FOR ONTARIO
DATE: 20210429 DOCKET: C66425 Watt, Hoy and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
J.L. Appellant
Counsel: Jeffery Couse, for the appellant Caitlin Sharawy, for the respondent
Heard: March 24, 2021 by video conference
On appeal from the conviction entered on July 26, 2018 by Justice Joseph A. De Filippis of the Ontario Court of Justice, with reasons reported at 2018 ONCJ 513.
Hoy J.A.:
[1] The appellant was convicted of sexual assault and sexual interference with respect to his daughter, C.L., and sentenced to 18 months’ imprisonment, followed by 3 years’ probation.
[2] The abuse occurred while C.L. visited the appellant. C.L. was four years old when she first disclosed the abuse and six years old at the time of trial. The trial judge admitted three out-of-court statements made by C.L.: two under the principled exception to the hearsay rule, and one under s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46.
[3] The appellant appeals his conviction, arguing that the trial judge erred in admitting the three statements.
[4] For the following reasons, I would dismiss the appeal.
Background
[5] Prior to trial, C.L. disclosed the abuse on three separate occasions.
[6] First, on April 7, 2016, while at a neighbour’s house, she blurted out before her mother and the neighbour, unprompted: “daddy ate my patoon” (“the first statement”). The undisputed evidence was that in referring to “patoon”, C.L. meant vagina.
[7] After this statement, C.L. was unwilling to participate in a police interview without her mother, and the police investigation was suspended. The police instructed C.L.’s mother not to discuss the allegations with C.L.
[8] Second, on November 23, 2016, at a play therapy session, in response to a short film entitled “My Body Belongs to Me”, in which a young boy describes being inappropriately touched by his uncle, C.L. covered her vaginal areas and stated: “Yuk, my dad did that to me.” She then described the abuse. Using a baby doll, she acted out three different sexual positions: (1) laying on top of the appellant, licking his penis; (2) laying on her side while the appellant licked her vagina; and (3) laying on her back, while the appellant opened her legs and licked her vagina. She made licking noises during this re-enactment. She said this occurred “at dad’s house in dad’s bed”. C.L.’s words and gestures were recorded by the social worker, who testified at trial.
[9] Following this second statement, the police re-opened their investigation.
[10] On January 18, 2017, during a videotaped interview by a police officer, C.L. made the third statement: “my daddy licked my private parts” and “ate it”. She said it happened in his bed, he used his tongue, and it felt “ticklish”.
[11] At trial, C.L. testified by video link, from a room adjacent to the courtroom. While she was made available for cross-examination — first by video link and then, at her request, in the courtroom — C.L. did not want to answer questions about the allegations.
The video-recorded statement
[12] The statement to police that was recorded on video was admitted under s. 715.1 of the Criminal Code. Section 715.1 of the Code permits a video recording of a victim or other witness to be admitted if the Crown establishes on a balance of probabilities that: (1) the victim or witness was under the age of 18 at the time of the offence; (2) the statement was made within a “reasonable time” after the alleged offence; (3) the victim or witness describes the acts complained of in the statement; and (4) the victim or witness, while testifying, “adopts” the contents of the statement: R. v. P.S., 2019 ONCA 637, at para. 12.
[13] The appellant argues that the trial judge erred in finding that the video recording was made within a reasonable time after the alleged offence and that the complainant had adopted its contents while testifying.
[14] In particular, the appellant argues that the nine-month delay between the first statement and the video recording was unreasonable because: (1) the police could have, but did not, make further efforts to obtain a statement from C.L. after their first attempt to interview her was unsuccessful; and (2) having regard to the evidence that C.L.’s mother did not follow police instructions to refrain from speaking to C.L. about the allegations, C.L. may have been influenced by her mother prior to the video recording, tainting the accuracy of that statement.
[15] The appellant also argues that C.L.’s responses at trial about whether she recalled giving the video-recorded statement were equivocal.
[16] I reject these arguments.
[17] The trial judge noted that in considering the requirement that the video recording have been made within a reasonable time after the alleged offence, the court must balance a number of factors, the most important being the reasons for the delay and impact on the child’s ability to accurately recall the events in issue: R. v. P.S., (2000), 144 C.C.C. (3d) 120 (Ont. C.A.), at para. 71.
[18] Having regard to the circumstances and C.L.’s tender age, the trial judge was satisfied that the statement was made within a reasonable time.
[19] His reasons describe a young child who was scared and uncomfortable talking about the abuse. It took time, and therapy, for her to be able to do so. It was not until the ninth therapy session, after watching a short movie where a young boy talked about good and bad touches and about how he felt on a bad touch by his uncle, that C.L. opened up and made her second statement to the social worker. The police decision to suspend the investigation at the time they did was not unreasonable.
[20] In concluding that the video recording was made within a reasonable time, the trial judge also specifically considered, and addressed in his reasons, the appellant’s argument that C.L. may have been influenced by her mother. He noted that “It is likely that [C.L.’s] mother influenced her decision to speak to the police but the video record suggests most of the words spoken are her own and that she is able to recall events.” He concluded that the concern about C.L.’s mother’s influence on C.L. could be addressed in determining ultimate reliability. There is no basis to interfere with that conclusion.
[21] Further, the trial judge found that while C.L. was reluctant to watch the video record or talk about the allegations, with some prodding she “eventually acknowledged “making the movie” and adopted it.” It was not a case of C.L. not recalling the statement; “rather, she did not wish to be exposed to it, or discuss it.”
[22] The trial judge also noted that certain statements made by C.L. in her trial testimony supported the inference that she had listened to the video and did recall her prior allegations. In particular, during the video-recorded interview, in recounting that the appellant had licked and eaten her patoon, she described the appellant as having made a circling motion with his body. At trial, when asked if she had told the officer the truth during the interview, she agreed and stated, “I couldn’t do the really lay down circle thing that the – I didn’t really do the circle thing right” and laid down on the floor.
[23] There is no basis to interfere with the trial judge’s conclusion that C.L. adopted her video-recorded statement.
The first two statements
A framework
[24] The first two statements were admitted under the principled exception to the hearsay rule. Under that exception, an out of court statement may be admitted for the truth of its contents if the party tendering it demonstrates, on a balance of probabilities, that the statement satisfies the criteria of “necessity” and “threshold reliability”: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47; R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23. Even if the trial judge concludes that those criteria are satisfied, she has the discretion to exclude it if the prejudicial effect outweighs its probative value: Khelawon, at para. 49; Bradshaw, at para. 24.
[25] As the trial judge noted, “threshold reliability” can be established either by showing that there are adequate substitutes for the traditional safeguards for testing the truth and accuracy of the hearsay evidence (procedural reliability) or that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability): Khelawon, at paras. 61-63; Bradshaw, at paras. 27-28, 30-31.
[26] The statement must be sufficiently reliable to overcome the dangers arising from the difficulty in testing it: Khelawon, at para. 49; Bradshaw, at paras. 26, 32. As Bradshaw explains, “…[s]ubstantive reliability is concerned with whether the circumstances and any corroborative evidence provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy”: at para. 40. Thus, the trial judge must identify alternative, even speculative, explanations for the hearsay statement and, based on the circumstances and evidence led on voir dire, must be able to rule out any plausible explanation on a balance of probabilities: Bradshaw, at paras. 48, 49. The circumstances in which the statement was made and corroborative evidence, if any, must substantially negate the possibility that the declarant was untruthful: Bradshaw, at paras. 31, 90.
The trial judge’s reasons
[27] Following the voir dire with respect to the admissibility of the three statements, the trial judge ruled that they were admissible, for reasons to follow. The trial judge provided those reasons at the beginning of his reasons for judgment.
[28] Citing R. v. F. (W.J.) (1999), 138 C.C.C. (3d) 1 (S.C.C.), the trial judge noted that the requirement is that the evidence in question be “reasonably necessary” to prove a fact in issue and includes situations in which the witness is unable or unwilling to provide an accurate and frank recital of events. The trial judge concluded that the first two statements were reasonably necessary: “This is a six year old child who does not want to discuss the things she previously said her daddy did to her.”
[29] The trial judge found that procedural substitutes were not present in this case. His finding that the first two statements satisfied the criteria of “threshold reliability” was grounded in his conclusion that they were substantively reliable.
[30] The trial judge found that the first statement was “short, simple, and spontaneous” and was heard by a neighbour, in addition to the mother. The brevity of the statement alleviated concerns that it might have been improperly heard by the witnesses and conveyed to the court.
[31] In the case of the second statement, the trial judge was satisfied as to the truthfulness and accuracy of the social worker’s testimony. Considering the direction in Bradshaw that, in assessing substantive reliability, trial judges consider alternative, even speculative explanations for the hearsay statements, the trial judge addressed the appellant’s suggestion that others were to blame for exposing the complainant to pornography or abusing her: “This speculation does not trouble me given the level of sexually explicit details given by such a young girl in the strikingly similar play therapy hearsay and video statement.”
The appellant’s submissions
[32] The appellant argues that neither of the first two statements satisfied the criteria of “necessity” and “threshold reliability”.
[33] Citing R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 73, he argues that neither of the first two statements satisfied the “necessity” criterion because they were repetitious of the video recording admitted under s. 715.1 of the Code.
[34] As to substantive reliability, the appellant argues that in assessing the first statement, the trial judge did not address C.L.’s statement, made at the same time as her first statement, that the appellant had “punched me in the face.” C.L.’s mother had never noticed signs of C.L. having been punched in the face. This, the appellant argues, undermined the credibility and reliability of C.L.’s first statement.
[35] Nor, he argues, did the trial judge address the alternative explanation the appellant offered for both the first and second statements in assessing the substantive reliability of the first statement, namely that C.L. might have been abused or exposed to pornography by others.
[36] Further, as to the threshold reliability of the second statement, the appellant argues that the trial judge failed to consider that, between the first statement and the second statement, C.L.’s mother had disregarded police instructions to refrain from discussing the allegations with C.L. Citing R. v. D.R., 1996 SCC 207, [1996] 2 S.C.R. 291, the appellant argues that C.L.’s statement did not satisfy the requirement of threshold reliability because it was equally consistent with the hypothesis that her mother had influenced her to make the allegations.
[37] Finally, the appellant argues that the trial judge improperly relied on the video recording to reject an alternative explanation for, and to corroborate, the second statement, offending the rationale of the rule that prior consistent statements are presumptively inadmissible.
Analysis
[38] I reject these arguments.
(1) The “necessity" requirement
[39] Turning first to the appellant’s argument that neither the first nor the second statement satisfied the “necessity” requirement, there is no “bright line rule that enjoins all cumulative hearsay”: R. v. Mohamad, 2018 ONCA 966, 369 C.C.C. (3d) 211, at para. 123. Defence counsel at trial did not challenge “necessity” on the basis of cumulative hearsay, but, in any event, this case is different from Rhayel.
[40] In Rhayel, the court held that the complainant’s video-recorded statement was not admissible under the principled exception to the hearsay rule because it was not necessary: the evidence was already before the court through the complainant’s testimony at the preliminary inquiry. Epstein J.A., writing for the court, explained that evidence which is merely repetitious of statements already admitted may have little or no probative value, and the prejudice to the accused resulting from its admission may be great: Rhayel, at para. 73. The risk of prejudice is recognized in the rule that renders prior consistent statements generally inadmissible. Epstein J.A. noted that, on a number of occasions, the trial judge had commented on how very similar the accounts of the complainant were.
[41] In this case, the first and second statements had probative value in and of themselves because of the circumstances in which they were made. The complainant’s statements that “daddy ate my patoon” and “yuk, my dad did that to me” and her gestures during play therapy describing the sexual acts were spontaneous and unprompted. It is their spontaneity that gives them their probative value. The complainant’s testimony at the preliminary inquiry in Rhayel was not spontaneous.
[42] Moreover, there was more detail given in the statements made and gestures shown to and recounted by the social worker than in the video recording. They were not merely repetitious of the video recording.
(2) Substantive reliability
[43] I turn next to the issues that the appellant raises with respect to the substantive reliability of the first statement. The appellant correctly notes that the trial judge did not address C.L.’s statement, made at the same time as her first statement, that the appellant had “punched me in the face.” This is not surprising: the appellant does not dispute that defence counsel at trial did not refer to the “punched me in the face” statement in his oral or written submissions. Moreover, the statement of a four-year old, in the context of a sexual encounter, that she had been “punched” in the face does not necessarily mean she was hit with such force as to leave a visible mark.
[44] As to the appellant’s alternative explanation for the first statement, in a phone call with the complainant’s mother (which the mother’s friend listened to), the appellant pointed the finger at the mother’s father and brothers and the babysitter. But the mother testified that: neither of her brothers had access to C.L. outside of the mother’s supervision; she does not have a babysitter; and she has not seen her father in years. And C.L. never wavered on the fact that it was “daddy” who ate her patoon.
[45] In assessing the threshold reliability of the second statement, the trial judge specifically considered and ruled out the appellant’s speculative explanation for the statement. The appellant does not challenge the Crown’s explanation that the appellant’s trial counsel did not advance a similar argument with respect to the first statement and it is therefore not surprising that the trial judge’s analysis focuses only on the second statement. As noted above, the trial judge’s reasons for admitting the three statements at issue formed part of his judgment finding the appellant guilty of sexual assault and sexual interference. In rejecting the appellant’s testimony and finding that it did not leave him with a reasonable doubt, the trial judge again addressed the appellant’s alternative explanation, and concluded that it was “nothing more than an attempt to deflect attention from himself.”
[46] Reading the trial judge’s reasons as a whole, it is clear he concluded that the appellant’s speculative explanation was not plausible and ruled it out. The fact that the trial judge did not specifically address the appellant’s speculative explanation in the portion of his reasons addressing why the first statement satisfied the requirement of threshold reliability is not a basis for this court to interfere.
[47] Turning to the second statement, the trial judge specifically considered the risk that the mother had influenced C.L. in assessing whether the delay before the making of the video recording was reasonable. This, the Crown advises, is the primary context in which the appellant’s trial counsel made this argument and it is therefore not surprising that this is where the trial judge addressed it. As noted above, the trial judge found that the video record suggests most of the words spoken were C.L.’s own and concluded that the concern about the mother’s influence on C.L. could be addressed in determining ultimate reliability. It cannot be said that the trial judge failed to “consider” the risk that the mother influenced C.L. in assessing threshold reliability.
[48] Moreover, in his reasons for judgment, the trial judge again specifically addressed the possibility that the mother had influenced C.L. by questioning her about the allegations. In his view, the circumstances in which the first two statements were made “undermine[d] the assertion the complainant’s trial testimony was tainted by external influences.”
[49] Finally, the appellant’s argument that the trial judge improperly relied on the video recording to reject an alternative explanation for, and to corroborate, the second statement arises out of the passage in the trial judge’s reasons explaining why he rejected the appellant’s speculative explanation for C.L.’s second hearsay statement: “This speculation does not trouble me given the level of sexually explicit details given by such a young girl in the strikingly similar play therapy hearsay and video statement” (emphasis added).
[50] Contrary to the appellant’s argument, the trial judge did not use the fact that there were similarities between the video recording and the second statement to conclude that the second statement was more likely to be true. Rather, it was the graphic detail in her accounts — “the level of sexually explicit details” — that caused him to reject the appellant’s speculative explanation for C.L.’s second statement. The trial judge’s careful analysis of why, in the circumstances, both the first and the second statements were admissible demonstrates that he was aware that prior consistent statements are generally inadmissible.
Disposition
[51] For these reasons, I would dismiss the appeal.
Released: April 29, 2021 “D.W.” “Alexandra Hoy J.A.” “I agree. David Watt J.A.” “I agree. I.V.B. Nordheimer J.A.”