Court Information

Court File No.: D55033/11 Date: 2014-11-26 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Between: Robert Scarlett, Applicant (father) And: Robyn Farrell, Respondent (mother)

Before: Justice Robert J. Spence

Evidentiary Ruling Argued in a Continuing Trial begun September 15, 2014

Argument Heard: 24 November 2014 Reasons for Ruling released: 26 November 2014

Counsel:

• Mr. Danny Bertao, for the applicant, father
• Ms. Andrea Kim, for the respondent, mother

The Issue

[1] This is a mid-trial ruling on the admissibility of a document, being a decision and reasons for decision of the Criminal Injuries Compensation Board ("Board") dated August 8, 2008.

[2] This trial commenced September 15, 2014 and has continued for seven days. It is likely to take a further two days, or so, to complete.

Context

[3] The mother has sole custody of the parties' seven year old daughter ("child"). The father is seeking an order at the end of trial that he be permitted access to the child. The father has not had any access to the child for approximately 2-1/2 years. The mother is opposed to any form of access by the father to the child.

[4] Part of mother's case is that she was severely abused by the father, both physically and emotionally, during the course of their relationship. To the extent that mother is able to prove that abuse, she will argue that this is a significant factor the court ought to take into account in deciding whether the father should have access to the child.

[5] It is the father's position that although he was convicted of assaulting the mother, he did not inflict on her any injuries. And he certainly denies engaging in any sort of pattern of physical and emotional abuse directed toward the mother.

[6] The mother wishes to buttress her claims that she was physically and emotionally abused by introducing into evidence the decision of the Board, which awarded the mother a sum of money, after finding that the father in fact abused her in a series of incidents over a period of about 2-1/2 years.

[7] The father argues that the Board decision is not admissible as it is hearsay. And even if it is otherwise admissible under one of the exceptions to the hearsay rule, the prejudicial impact outweighs the probative value. Accordingly, the father argues, the court should exercise its discretion to refuse to admit that document into evidence.

The Board Decision Dated August 8, 2008

[8] In order to better understand the respective positions of the parties, it is necessary to summarize the essence of the Board's decision.

[9] The decision begins with the Board stating that mother

brings this application as a result of being physically and sexually assaulted by her former common-law partner [the father], the Offender, between December 2003 and May 2006.

[10] According to the Board:

[shortly after the parties moved in together, the father] forcibly confined her on several occasions and would not allow her to have any contact with her family or friends. He was also verbally abusive towards her and he would constantly threaten her. The verbal abuse often escalated into physical violence as well. On several occasions [he] threw objects at her and destroyed her property. He also slapped and punched her, pushed her up against a wall and he pinned her down on the ground with his hands and knees while shouting obscenities at her. The violence intensified whenever [he] was under the influence of drugs. She testified that the abuse occurred on a weekly basis and it would vary in duration. . . . [he] sexually assaulted her on two separate occasions and each time she was physically assaulted as well.

[11] The Board then proceeded to describe violent incidents which the mother testified as having occurred on three occasions.

[12] Under a subheading in its decision entitled "The Injury", the Board stated that the mother suffered "multiple bruises and lacerations all over her body as a result of the abuse".

[13] The Board also described the psychological harm suffered by the mother. It referred to a report from mother's counsellor/therapist who the mother attended on several occasions, citing from that report as follows:

[mother's] life has been profoundly affected on a day to day basis. Although she is an exceptionally bright and talented young woman, she has been unable to fulfill her potential.

[14] In addition, the Board referred to what it described as a "very touching letter" from the mother's mother "setting out the drastic change in her daughter as a result of the abuse.

[15] The Board noted that the father was in fact convicted of assaulting the mother, contrary to section 266 of the Criminal Code of Canada, and received a suspended sentence together with a one year period of probation.

[16] The Board found mother to be a "victim within the meaning of section 5(a) of the Compensation for Victims of Crime Act", as a result of

the multiple described acts which occurred over a period of time and which were committed by the [father]. The Board finds that the abuse took place frequently over a period of 2-1/2 years.

[17] In finding that there were multiple incidents of abuse which had a cumulative emotional and psychological impact on the mother, the Board concluded that it was appropriate to award a global amount for damages to the mother, namely, $18,000 for pain and suffering and $3,615 for the therapist expenses.

Hearsay

[18] The Board's decision is a document prepared by a third party, not present in court to testify. It is presumptively not admissible, as it is hearsay. It can only be admitted into evidence if it falls within an exception to the hearsay rule.

Is the Board's Decision a Public Document?

[19] One of the exceptions to the hearsay rule against admissibility is the public documents exception. In Catholic Children's Aid Society of Toronto v. N.A., 2013 ONCJ 58, this court stated, at paragraph 12:

At section 6.295 of Sopinka, Lederman & Bryant in The Law of Evidence in Canada, (Third Edition, 2009), the authors state:

Where an official record is necessarily subject to public inspection, the facility and certainty with which errors would be exposed and corrected provides an additional guarantee of accuracy. Before this exception to the hearsay rule comes into play, however, the following preconditions, cumulatively providing a measure of dependability, must be established:

1. The subject matter of the statement must be of a public nature.
2. The statement must have been prepared with a view to being retained and kept as a public record.
3. It must have been made for a public purpose and available to the public for inspection at all times.
4. It must have been prepared by a public officer in pursuance of his or her duty.

[20] In that case, the argument was with respect to the admissibility of a decision of the Child and Family Services Review Board. I found that the decisions of that Board were publically available on the internet, and that the decision satisfied all four of the aforesaid preconditions for admission into evidence as a public document. Accordingly, I admitted the decision into evidence.

[21] However, in the present case, there is no evidence that this Board's decisions are available to the public. Mother's counsel did not provide me with any evidence on this point; and when I attempted to find the Board's decisions on the internet, I was unable to do so.

[22] Furthermore, the particular decision which is the subject of this ruling is stamped on the front page with the following words:

Publication Prohibited

The Board heard this application and, as authorized by section 13 of The Compensation for Victims of Crime Act, R.S.O. 1990, c. 24, prohibits publication of any report or account of the evidence.

Hearing Closed to the Public

This application was heard by the Board in a hearing closed to the public under s. 12 of the Act.

[23] In the absence of any evidence to the contrary, I conclude on the basis of the foregoing that the Board's decision is not a public document and, accordingly, is not admissible into evidence as a public documents exception to the hearsay rule.

Admissible to Buttress Mother's Credibility at Trial?

[24] Mother argues that this decision is admissible for the purpose of demonstrating that when she testifies at trial, she cannot be accused of simply inventing her story of abuse for the purpose of this trial. In other words, because she made these complaints several years ago to the Board, her testimony at this trial will be shown to be consistent with her complaints dating back to 2008 and, therefore, this court should find her testimony to be more credible because of that.

[25] In support of that argument, mother relies on the case of R. v. Ay (1994), 93 C.C.C. (3d) 456 (B.C.C.A.). In that case, the appellant appealed a conviction for sexual offences, arguing that the complainant's prior historical statements to other persons, were improperly allowed to go before the jury as prior consistent statements, supporting the truth of the complainant's allegations at trial against this particular accused.

[26] The British Columbia Court of Appeal stated, at paragraph 45 [my emphasis]:

To summarize, the fact that a prior complaint was made, when it was made, and why it was or was not made in a timely fashion, are all matters relevant and admissible to establish the conduct of the complainant in a criminal case, from which conduct the trier of fact is entitled to draw inferences relative to the credibility of that complainant's evidence.

[27] Mother argues that based on the foregoing statement, her prior complaints to the Board, as encapsulated in the Board's decision, are relevant and admissible.

[28] However, in the foregoing case, the British Columbia Court of Appeal went on to say, at paragraph 45 [my emphasis]:

However, the content of any prior statement cannot be used to demonstrate its consistency with, and therefore the probably truthfulness of, the complainant's evidence at trial, and thus such content is inadmissible unless relevant for some other purpose such as providing necessary context for other probative evidence.

[29] In other words, while the fact that a prior complaint was made may be relevant in certain circumstances, the content of that prior complaint cannot be used to buttress a complainant's credibility.

[30] In the Board's decision, the evidence it relied on as to the abuse inflicted by the father on the mother, came from the mother herself. Specifically, the fact of the abuse, the fact that the abuse was perpetrated over a period of 2-1/2 years, and the details of the incidents of the abuse, all would have come directly from the mother's testimony at the Board hearing. Neither the mother's therapist, nor her own mother would have been able to testify to the facts of those occurrences.

[31] In effect, then, what mother is seeking to do is to admit those prior statements, which she gave to the Board in 2008, to buttress her credibility in the trial before me. And according to the Ay case, that is exactly what mother cannot do.

The Principled Exception - Necessity and Reliability

[32] In R. v. Starr [2000] S.C.R. 144, the Supreme Court of Canada held that the traditional hearsay rules against the admissibility of evidence required modernization. The Court found that a new hearsay exception, based on the principle of "necessity and reliability" ought to be imported into the rules of evidence.

[33] Although neither counsel argued this particular exception to the hearsay rule, in my view, for the sake of completeness, it is important to consider whether the Board's decision is both necessary and reliable and therefore admissible under the principled exception rule.

[34] While I might be prepared to find that the Board's decision is reliable, I cannot conclude that admitting the decision into evidence is necessary.

[35] The Board appears to have obtained its evidence essentially from three sources: the mother, the mother's therapist and the mother's mother. At this trial, the mother intends to testify and she is therefore capable of telling this court exactly what she told the Board, if she is so inclined. Similarly, the mother's mother is scheduled to testify and, accordingly, she is able to do the same. And finally, if the mother believes that her therapist's evidence is important to her case, she can subpoena her therapist to come to this trial.

[36] In other words, it is not "necessary" for this court to rely on the conclusions of the Board, when the identical evidence that was presented to the Board, is equally capable of being presented to this court.

Prejudicial Impact Outweighs Probative Value

[37] Finally, even if I had concluded that the Board's decision was otherwise admissible under one of the previously-discussed exceptions to the hearsay rule, I would have concluded that its prejudicial impact outweighs its probative value.

[38] Section 9 of the Compensation for Victims of Crime Act, provides [my emphasis]:

Notice of hearing

9. (1) When an application is referred under section 8 the Board shall fix a date, time and place for the hearing of the application and shall, at least 10 days before the hearing date, have notice of the date, time and place served on,

(a) the applicant; (b) the Minister; (c) the offender, if it is practicable to serve him or her; and (d) any other person who appears to the Board to have an interest in the application. 2000, c. 26, Sched. A, s. 4 (2).

[39] There is no evidence that the Board notified the father of the hearing. In fact, the father testified that he was not so notified, and the mother did not challenge his evidence on that point in her cross-examination of the father.

[40] The Board's reference to the repeated acts of abuse, both psychological as well as physical, were arrived at without the father being present and without his having had the opportunity to challenge any of the evidence placed before the Board. I do not state this to be critical of the Board or its decision but, rather, to point out that the Board's findings of fact were reached in what amounted to an ex parte process.

[41] In its reasons, the Board described in considerable detail, the acts of violence which it concluded were perpetrated by the father on the mother.

[42] The Board's use of words such as "a very touching letter from the [mother's] mother", combined with the Board's findings, the vivid descriptions of violence contained in the Board's decision which were based primarily on the unchallenged oral evidence of the mother, lead this court to conclude that reliance on the Board's decision would unfairly prejudice the father's position in this trial. And because of this, I would exercise my discretion to exclude the evidence on that basis. See, for example, R. v. Powell (2006), 215 C.C.C. (3d) 274 (Ont. S.C.J.)

[43] Furthermore, as I noted earlier, virtually all of the evidence that was presented to the Board is capable of being presented to this court.

[44] For these reasons I conclude that the Board's decision cannot be admitted into evidence in this trial.

[45] Order accordingly.

Justice Robert J. Spence 26 November 2014