Court File and Parties

Court File No.: C51951/10

Date: 2012-05-31

Ontario Court of Justice

In the Matter of

The Child and Family Services Act, R.S.O. 1990, c.C.11

And in the Matter of V.P. and J.R.P., children apparently in need of protection.

Between:

CATHOLIC CHILDREN'S AID SOCIETY OF TORONTO

Applicant

• and -

M. and P.

Respondents

Ruling

Before the Honourable Mr. Justice S. Sherr

On May 31, 2012 at Toronto, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

Appearances

• R. Vogl, Counsel for the C.C.A.S.
• L. Talbot, Counsel for M.
• J.P., Self-Represented

Ruling

S. SHERR J. (Orally):

This is my ruling on the admissibility of child statements made to Constable Osborne and Constable Penwell. The Society wishes to introduce these statements to show the state of mind when made of the children V., age 14, and J., age 12. The mother seeks to exclude these statements. Two principal arguments: the first is that the mother submits the necessity test should be applied to such state of mind statements; and the Society hasn't established necessity in this case. And secondly, even if necessity is not required, many of the statements do not qualify under the state of mind exception.

On May 29th, 2012, I heard similar arguments with respect to child statements made to the Society's social worker, Ayleen Gutierrez. A voir dire was held and I gave a ruling as to why certain statements would be admitted under the state of mind exception and why others would not. Mother's counsel asked me to reconsider that ruling so that they can make a more fulsome legal argument. I agreed to give them that opportunity.

On May 28th, 2012 counsel for the Society sought also to introduce the transcript of a police interview with both children as to the truth of the statements. I excluded the transcript. Counsel for the Society asked for the opportunity to make a further argument to reconsider that decision and I also permitted this. The voir dire with respect to the police statements was held on May 30th, 2012 and I heard argument on all of the child statement issues.

In setting out the legal criteria for the state of mind exception on May 29th, 2012 I cited portions from the paper, A Refresher on Child Hearsay from Professor Rollie Thompson. I won't repeat those criteria; I find that they still apply.

Legal Framework: Necessity and Reliability

So what about the argument that the principled exception of necessity and reliability must be applied to the categorical hearsay exception of state of mind if raised? If children are available to testify about their state of mind at the time the statements made, should they be required to testify about that if the Society wants the evidence adduced and be subject to cross-examination? I thoroughly reviewed the extensive case book provided by mother's counsel. The clearest summary of the law I found is contained in the case of R. v. Khelawan, 2006 SCC 57, [2006] 2 S.C.R. 787, and I will read paragraph 42, where the court writes:

It is long been recognized that a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence. The hearsay statement, because of the way in which it came about, may be inherently reliable, or there may be sufficient means of testing it despite its hearsay form. Hence a number of common law exceptions were gradually created. A rigid application of these exceptions, in turn, proved problematic leading to the needless exclusion of evidence in some cases, or its unwarranted admission in others. Wigmore urged greater flexibility in the application of the rule based on the two guiding principles that underlie the traditional common law exceptions: necessity and reliability (Wigmore on Evidence (2nd ed. 1923), vol. III, §1420, at p. 153). This Court first accepted this approach in Khan and later recognized its primacy in Starr. The governing framework, based on Starr, was recently summarized in R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23, at para. 15:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

And the court goes on to say in paragraph 60:

The Court in Starr also reaffirmed the continuing relevance of the traditional exceptions to the hearsay rule. More recently, this Court in Mapara reiterated the continued application of the traditional exceptions in setting out the governing analytical framework, as noted in para. 42 above. Therefore, if the trial judge determines that the evidence falls within one of the traditional common law exceptions, this finding is conclusive and the evidence is ruled admissible, unless, in a rare case, the exception itself is challenged as described in both those decisions.

In this case, the mother has challenged the requirement of necessity. So the court must ask: is this a rare case where the necessity requirement should be applied to a categorical exception? And I can imagine cases where it would be applied. So take, for example, the business record exception; let's say you have a recording of a nurse in 2005, who, in the course of her duties, in a business record records that the mother pulled a knife on her while she was taking blood from the mother. Well, this would be a proper business record, it would be first-hand hearsay, it would be admissible under the business records exception, it would be relevant; it would be going to the truth. However, such a statement would be very damaging to the mother in that particular case. The nurse in that case, let's assume, is available for cross-examination. In a case like that, the prejudice of admitting the evidence in this form would be overwhelming and it should be subject to cross-examination; that would be an example of a rare case where the necessity requirement would take precedence.

However, let's say in another case, the mother wants to call 14 lab technicians who took blood samples from her at the hospital during different times between 2002 to 2005, and let's say in that case she invokes the necessity argument. Well, if the argument of the mother is accepted, the Society in this case cannot meet the necessity test if all 14 of those lab technicians are available. So, should the court require those 14 lab technicians to attend and ignore the business record exception? The answer to that question would be clearly no. This is what the business record exception is intended for. This form of first-hand hearsay is presumptively admissible and probably the best evidence of what they physically did back during that period of time. And it would be prejudicial and protract a trial if we required the necessity requirement in that particular instance. In a situation like that, the other side would always have the opportunity to summons one or all of the lab technicians to come in and give evidence. But, under the business record exception, their evidence would go in.

Application to State of Mind Statements

So what about statements made by the children to the police officers that fit within the state of mind exception? Can they go in, even if the children are available to testify? And my answer to that question is definitively yes. This is not the rare case where the statement that falls within a categorical exception should not be admitted due to the issue of necessity.

I'll refer to the paper again of Professor Rollie Thompson, Hearsay and exceptions to the hearsay rule which is published in chapter nine of Niman Volikis, Evidence in Family Law, Canada Law Book, 2010. And he writes about the state of mind exception:

This is not an exception that is dependent upon the unavailability of the declarant. In most cases, the declarant making the out of court statement will be available to testify. But the earlier and contemporaneous statement of a person's then existing state of mind, is viewed to be as good or even better than today's sworn evidence. And practically, there is often no other way to determine a person's physical, mental or emotional state. This category of statements is seen as reliable for a mixture of reasons: The statement is contemporaneous with the condition, often spontaneous, often made to health professionals for treatment purposes. Significantly in most instances, the witness who hears the statement can also observe the actual condition and mood of the declarant as the statement is made to assist in assessing the accuracy and the reliability of the statement.

I agree wholeheartedly with the comments of Professor Thompson. The risks of unreliability of such statements are met by the requirements set out in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; that the statements cannot be made in circumstances of suspicion. And I emphasize that these statements are the best evidence of the child's state of mind at that fixed point in time. What they say today about their state of mind then, is not of much help to the court. And again, this does not preclude such a deponent from being called by one of the other parties. So my ruling of May 29th, 2012 stands subject to my ruling of May 30th, 2012, that the one statement of V. that he was scared related to the August 29th incident be excluded because it was not contemporaneous. As on May 29th, 2012, I find sufficient reliability to admit the statements that qualify as state of mind statements, they were made to professional witnesses, people in authority. There was no motive of those persons to misrepresent the evidence. They had a duty to take notes which were done contemporaneously. The evidence given to both of the officers was reasonably consistent which gives it more reliability. It was also consistent with the expressions given to the social worker, which give it more weight. The children were interviewed separately; they were told to tell the truth. Any other circumstances around the making of the statements go to weight.

Specific Rulings on Statements to Constable Penwell

So let's talk about the application of these principles to the statements at hand and I will deal first with the statements to Constable Penwell. The first statement is, and these were all statements of V., the first statement, "He is scared of his mom and didn't know what to do." I find that falls within the state of mind exception. Two, "He was crying"; that shows how he was feeling, that falls within the state of mind exception; and three, "Does not feel safe with mom." It is an expression of how he felt at that point in time that falls within the state of mind exception. All three of those statements are admissible.

Specific Rulings on Statements to Constable Osborne

Next dealing with the statements to Constable Osborne. First statement reads as follows, "I was like, I was hurt mostly on the inside because I, I don't, I am, like, not happy that my mom would do something like that to me." I find the first part of that statement admissible which says, "I was like, I was hurt on the inside." The rest of it relates to causation, is severable, does not go to the state of mind and is excluded.

The second statement, "She hurts my feelings." This one is much more problematic. It expresses that the child has hurt feelings, which is a state of mind, but is also mixed with the causation and I find it is much too hard to actually separate the state of mind from the causation within that statement and if the court is going to admit a statement it should clearly fall within the exception, otherwise the prejudice to the parents is too great, and so I am going to exclude that particular statement.

The third statement is, "I don't really feel safe there anymore." That is clearly state of mind and that will be included.

The fourth statement to Constable Osborne is, "'Cause it really hurt, I told my mom and she said that she didn't care." That will also be excluded; again this is a statement about the mother's actions. It is mixed with feeling but it is so intermixed that it does not clearly fall within the exception. The prejudice of admitting it is too high and so that will be excluded.

Ruling on Police Interview Transcript

Next, I turn to the Society's argument to admit the transcript of the police interviews with V. and J. The Society wants to introduce this transcript, or for me to look at the video tape for the truth of the statements. They concede that it does not meet the necessity test of the principled exception set out in Khan and that they have no evidence of necessity with respect of the two children who are 14 and 12. However, they do ask me to apply the exception, which is set out in subsection 50(2) of the Child and Family Services Act, as evidence of past parenting and under sections 50(1). Sub-section 50(1) permits a court to admit a transcript if it considers it relevant. In the case of Children's Aid Society of Toronto v. L.L., 2010 ONCJ 48, [2010], Carswell Ontario, 920, I reviewed the two lines of authority interpreting section 50 of the Child and Family Services Act. One of the lines of the cases deals with courts that allow a wide range of admissibility under this section and the other line of cases takes a more rigorous approach closer to the principled exception. That analysis is contained in paragraphs 10 to 14 of that decision and I am not going to repeat it.

I find that the principled approach is the proper route to take in this case. The key phrase in subsection 50(1) of the Child and Family Services Act is relevance. And in L.L., in paragraph six I write, "In determining relevance the court must determine whether the evidence is not only logically relevant but pragmatically relevant. The probative value of the evidence must outweigh any prejudice to its introduction."; R. v. K.A., [1999], 45 O.R., 3d, 641. And I write in paragraph seven, "For evidence to be relevant it must be reliable, otherwise it has no value." In this case, the business record exception creates a test that ensures a certain degree of reliability for first-hand hearsay.

However, this does not preclude the opposing party from leading evidence to show that the evidence is in fact so fundamentally unreliable it would be prejudicial to admit it. So here, the Society is trying to introduce children's statements for the truth of the contents. If established as true, this could be very damaging to the parents. The parents say that the allegations are not true. The only way they can test the truth of the allegations properly is through cross-examination of the allegations. The court is being asked to make the most important decision it can possibly make for a child; whether to remove the child permanently from the parents. The stakes are incredibly high in this case, which means that the rules of evidence do apply and is important that the courts receive reliable evidence in making these important decisions. It means that fundamental justice requires that the parents be given every reasonable opportunity to challenge this evidence if adduced and, it is essential that the court make a decision on the best and most reliable evidence; that is what the principled exception is designed to achieve. It could be very dangerous and the court could make a wrong decision for this child if it just accepts allegations of abuse without testing.

Unlike the state of mind exception, where evidence of observation and demeanor and statements are the best evidence of the child's state of mind at a fixed point in time, the transcript is not necessarily the best evidence of what actually happened with respect to these allegations in 2010. The children are old enough to testify about these events if the Society feels it is necessary to adduce this evidence. No evidence of necessity has been called to meet the principled exception. So accordingly, the court finds the transcript is not sufficiently reliable to establish the truth of these statements without cross-examination. The prejudicial effect of admitting this evidence exceeds the probative value and accordingly, the evidence is not relevant and not admissible under section 50 of the Child and Family Services Act.

So that is the evidentiary ruling.

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Justin Di Giacinto, certify that this document is a true and accurate partial transcript of the recording of CCAS v. M. and P. in the Ontario Court of Justice Family Court, held at 47 Sheppard Avenue East, taken from recording No. 4831_A_20120531_084945 on May 31st, 2012, which has been certified in Form 1.

Date: ___________________

Justin DiGiacinto Court Reporter

COPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR UNLESS THEY BEAR THE ORIGINAL SIGNATURE OF JUSTIN DI GIACINTO, AND ACCORDINGLY ARE IN DIRECT VIOLATION OF ONTARIO REGULATION 587/91, ADMINISTRATION OF JUSTICE ACT, JANUARY 1, 1990.