WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application. — 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.

486.6 Offence. —(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.

Court Information

Ontario Court of Justice

Date: 2015-03-02

Between:

Her Majesty the Queen

— AND —

M.R.

Before: Justice Patrice F. Band

Heard on: October 3, 5, December 5 & 15, 2014

Reasons for Ruling released on: March 2, 2015

Counsel:

• Ms. K. Slate, counsel for the Crown
• Ms. R. Sussman, counsel for the defendant M.R.

Reasons for Ruling: "Khan" Application

I. Introduction

[1] These are my reasons in relation to the admissibility of hearsay statements and conduct of a toddler, as related to the court by her mother in this trial. The accused is charged with having committed sexual assault and sexual interference on his daughter during a 98-day period leading up to April 8, 2013.

II. Publication Ban

[2] At the outset of this trial, I ordered a ban on publication to protect the identity of the complainant pursuant to s. 486.4. Because the relationship is one of father-daughter, and the Crown relies on the evidence of the accused's former wife, I have chosen to use initials when referring to the accused ("M.R.") his former wife ("P.M.") and their daughter ("A.R.M.").

III. Background Facts

A. Overview of Events

[3] A.R.M. was between 30 and 33 months old at the time of the alleged offences. Beginning on Friday, April 5, 2013, A.R.M. made a number of statements to her mother. These were accompanied by actions, some of which were sexualized. Together, they led P.M. to believe that M.R. had sexually abused A.R.M. She questioned him about it throughout the weekend. On Monday April 8, after M.R. returned from work, P.M. continued to question him. He said, "I believe it's true. I did all kinds of things to her." P.M. locked him out of the apartment and called police later that day.

[4] The next day, April 9, she took A.R.M. for medical attention.

[5] On April 9, M.R. attended the Emergency Room ("ER") of William Osler Hospital where he was seen by Ms. Elisa Busel, R.N., a triage nurse. An ER doctor requested a psychiatric consultation for M.R., who was then seen by Dr. David Koczerginski, the Chief of Psychiatry. Ms. Busel and Dr. Koczerginski both related to the court some statements that M.R. had made to them. He told Ms. Busel that he had sexually abused his two-and-a-half year old daughter and that he had been contemplating suicide. He also told her he suffered from bi-polar disorder. He told Dr. Koczerginski that he believed he may have, or that it was likely that he had, abused his two-and-a-half year old daughter.

[6] Later that evening, PC Derek Boyce arrested M.R. and interviewed him at some length. Defence counsel conceded that M.R.'s statement to PC Boyce was voluntary and therefore admissible in the trial.

[7] While not entirely unequivocal, some of M.R.'s statements to PC Boyce can be read as admissions.

[8] The Crown seeks to tender A.R.M.'s statements and attendant conduct for the truth of their contents pursuant to the principled exception to the rule against hearsay. In particular, she relies on the approach set out in R. v. Khan.

[9] The Crown argues that M.R.'s statements to P.M., Ms. Busel, Dr. Koczerginski and PC Boyce corroborate A.R.M.'s statements and conduct pursuant to R. v. Khelawon. She also argues that P.M.'s subsequent actions corroborate A.R.M.'s statements and conduct because they show how seriously she took them.

[10] On consent, the evidence bearing on the trial and the Khan application was heard by way of a "blended voir dire."

B. Content and Context of A.R.M.'s Statements and Behaviour

[11] Approximately one month prior to April 8, P.M. began to take English classes and to work part-time in a supermarket on weekends. Prior to that, she had been a stay-at-home mother. M.R. worked during the week.

[12] On April 5, A.R.M. and P.M. were in A.R.M.'s bedroom. A.R.M. said that "Daddy had a broken mouth." She was insistent. She also started to wrap her arms around herself while moving her tongue from side to side in her mouth.

[13] She also adopted a number of other positions. She knelt on her bed and leaned forward, arms outstretched and tried to pull down her diaper. She repeated that "Daddy had a broken mouth." She also would lie on the carpet and try to say something about "holes." At the same time, she pulled down her diaper and touched her vagina.

[14] She also put one leg up on the bed while the other foot was on the floor, or lay on the bed and spread her legs. In those positions, she also pulled down her diaper and touched her vagina.

[15] P.M. did not believe that A.R.M. was pulling her diaper down because it needed changing. She was not always wearing a diaper when engaging in the various positions and had never pulled at her diaper like this before.

[16] A.R.M. also stood up on a chair in her bedroom, facing the chair-back, and moved back and forth while making moaning sounds. She was also kissing herself.

[17] A.R.M. also talked about a "white trumpet" when engaging in various positions. There were no real or toy trumpets in the house.

[18] M.R. was in the apartment, but in another room. At one point, A.R.M. tried to take him by the hand and bring him to her bedroom. He resisted and pulled his hand away. He also appeared to be avoiding A.R.M. This was not his usual behaviour.

[19] The following day, A.R.M. invited P.M. to play with her on her bed, under the covers, and tried to kiss her on the mouth.

[20] A.R.M. had never done or said such things before. She did not watch television shows depicting sexual activity or adults kissing. P.M. had never kissed A.R.M. on the mouth before. P.M. and M.R. did not kiss on the mouth in front of her and if they kissed at all in front of her, it was only in passing.

[21] P.M. believed that A.R.M. was trying to communicate something to her, but she could not understand. She asked M.R. if he knew what A.R.M. was trying to tell them. He said he did not know, and asked P.M. what A.R.M. had been telling her.

[22] P.M. also asked him if he had hurt his mouth. He said he had not, and seemed nervous at the time.

[23] He would not give her a yes or no answer to the question "did something happen or not?" But he looked nervous.

[24] P.M. slept on the floor of A.R.M.'s bedroom that night.

[25] On Sunday, P.M. had to go to work. She was very worried, so she made M.R. and A.R.M. spend the time close to her place of work and be available by phone. The two came to P.M.'s workplace, and M.R. told her that "something happened." A.R.M. had been trying to kiss other children at the McDonald's that morning.

[26] P.M. was able to be relieved from work, and the three went home. She was able to get A.R.M. occupied in her bedroom so she could speak with M.R. A.R.M. then began to kiss her reflection in the mirror, to kiss herself and to kiss the floor.

[27] P.M. asked M.R. to go to work early the next morning and, again, slept on A.R.M.'s bedroom floor that night.

[28] When M.R. returned from work the next afternoon, P.M. confronted him in the vestibule and kept asking him what happened. He kept saying "I don't know, I don't know." The neighbour then came out and left. M.R. said that maybe the neighbour had heard something. Then, with a strange look on his face, M.R. said "I believe that it's true, that I did all kinds of things to her."

C. M.R.'s Statement to Police

[29] M.R.'s statement to police took place over the course of approximately 5 hours and 15 minutes in an interview room at 21 Division. In it, PC Boyce employs what is known as the Reid Technique of interviewing. Initially, M.R. indicates that he has no recollection of doing anything wrong to his daughter. He later explains that he has a "feeling" that he did something wrong, but has no actual recollection of any wrongful acts. He wishes to see the evidence before commenting further. After the halfway mark, PC Boyce begins to tell him that he is certain that an offence took place and discourages M.R. from denying it. M.R. begins to explain that some of the things A.R.M. was saying gave him a "bad feeling." He expresses the belief that if his daughter said that he did things to her, he must have done them. He indicates that he did not know he was doing things to A.R.M. until she started saying things to her mother. At this point, they were like confirmations to him. Until then, he had been in a state of denial.

[30] It is evident from the interview that PC Boyce believes that the "white trumpet" refers to M.R.'s penis. However, M.R. indicates that the "white trumpet" might refer to semen. He is not sure whether this interpretation is his or P.M.'s.

[31] M.R. also tells PC Boyce that A.R.M. said "daddy broke in her mouth." This, one must note, is not what P.M. had attributed to her. M.R. then says that it is possible that this refers to having ejaculated in her mouth because when she said that, he "got a strange feeling." While he does not remember doing so, M.R. said the following:

It's possible that I did it. I mean, I could say that-, I mean if I got that feeling, I was making the connection, so I, I could say that I, I must have done it, yeah. I mean it's something very possible. I, I don't know what-, I don't know….

[32] Later, in response to open ended questions, M.R. indicates that he thinks events "probably" took place in A.R.M.'s bedroom, "maybe" on the bed. He also indicates that the incidents took place recently, within the last month, as that was when he was alone with A.R.M.

[33] M.R. also explains to PC Boyce that A.R.M. put herself on the bed and said "daddy is doing mommy" and that he made a connection between her vagina and P.M.'s. It was he who had told her "daddy is doing mommy." This is not something that P.M. testified about or that PC Boyce had put to him.

[34] At one point, M.R. refers to semen as "rain", and attributes that usage to A.R.M. Again, this appears to be revealed by M.R. for the first time.

[35] At different points, M.R. says he is not sure if he put his penis near A.R.M.'s vagina or inside it, but later explains that he might have put it in but not deeply, because she would have suffered. On the last occasion, he would have used "like shorter movements" and have been "probably more careful." While he does not remember doing it, M.R. told PC Boyce that A.R.M. "was walking funny" the last day. This assertion was unprompted.

[36] M.R. twice indicates that he has "confessed." PC Boyce had not put this term to him at the time.

IV. Governing Legal Principles

A. The Principled Approach to Hearsay

[37] Hearsay is an exception to the general rule that all relevant evidence is admissible. In the absence of a recognized exception, it is presumptively inadmissible. This is because it carries with it "core dangers" associated with perception, memory, narration and sincerity. As such, the party tendering it must satisfy the twin criteria of necessity and reliability on a balance of probabilities.

[38] In this case, the defence has conceded that A.R.M.'s evidence is necessary. This concession was both fair and wise given A.R.M.'s age at the time of the events, that police had been unable to obtain a statement from her shortly after the events, the passage of approximately 18 months and the fact that her mother did not bring her to trial from overseas.

[39] The reliability criterion can be met in two principal ways. First, a statement can be admitted as reliable if "the circumstances in which the statement came about provided sufficient comfort in its truth and accuracy;" this was the case in Khan, supra. Second, it may be accompanied by adequate substitutes for contemporaneous cross-examination that allow the opposing party to test it, as set out in R. v. B.(K.G.).

[40] In the context of the first approach, the inability to cross-examine the declarant is a factor that goes to weight, not admissibility.

[41] In either instance, however, the court retains a residual discretion to exclude hearsay where its prejudicial value is out of proportion to its probative value.

B. Corroborating Evidence

[42] Since Khelawon, "all relevant factors should be considered" in the reliability analysis, "including, in appropriate cases, the presence of supporting or contradictory evidence." Corroborative evidence is "independent evidence that supports the truth of an assertion." In analyzing the various factors, including the potential effect of corroborative evidence, the court must not categorize them in terms of "threshold" and "ultimate" reliability. Rather, the court should adopt a functional approach that focuses on the dangers presented by the hearsay evidence and what is said to overcome them.

C. The Application Judge's Limited Role

[43] The application judge plays a limited, gatekeeper role in determining admissibility and must be careful not to allow the question of ultimate reliability to be pre-determined on the admissibility voir dire. The voir dire must focus on the hearsay issue and not become a trial on the merits.

V. Reliability

[44] As the Alberta Court of Appeal held in R. v. Ferris, without meaning, words cannot be relevant to any fact in issue and have no probative value. Therefore, to determine the threshold reliability of A.R.M.'s words and conduct, one must first determine whether meaning can be ascribed to them. To do so in this case, one must consider all the relevant evidence. This approach is not only consistent with Ferris, but also with the functional approach in which categories of evidence are not classified as "threshold" or "ultimate" issues.

A. Characterization and Interpretation of A.R.M.'s Assertions

[45] Hearsay can consist of words as well as non-verbal conduct. This case involves both. The following words and phrases are attributed to A.R.M.: "daddy broke in my mouth"/"daddy had a broken mouth", "white trumpet", "rain" and "daddy is doing mommy." They were uttered in combination with gestures and poses. The Crown submits that, together, they constitute assertions made by A.R.M., which can be true or false.

[46] I agree with the Crown's characterization. It accords with common sense and experience. At the time of the events A.R.M. was a verbal toddler. By using a combination of words or phrases combined with physical conduct, she was attempting to make assertions to her mother.

[47] The defence argues that it is impossible to determine what A.R.M. meant and that, therefore, I should exclude the evidence as the Court did in Ferris. In that case, an officer had heard only a snippet of one side of a conversation that the accused, who was in custody, was having with his father over the telephone. He overheard him say "…I killed David…." But it was clear that this phrase was only a fragment of the conversation, and that words had both preceded it and followed it. The majority of the Court found that it was impossible to determine the meaning of those three words. There were "no circumstances or context from which the true meaning of the words" could be inferred and there was no other independence evidence from which meaning could be drawn.

[48] Certainly, if it is impossible to ascribe meaning to A.R.M.'s words and conduct, then they are irrelevant and inadmissible. Put another way, I "must be satisfied there is some evidence upon which a jury could conclude the meaning of the uttered words" and assertive conduct.

[49] Taken alone, A.R.M.'s words and phrases are cryptic. Without more, they are devoid of any readily ascertainable meaning with respect to a fact in issue in this trial.

[50] In combination with her physical conduct, her words tend suggest that her father was involved in something sexual with her. That may be sufficient. In Badgerow, the Court of Appeal stated that it is up to the trier of fact to determine the meaning of words the declarant intended to convey by conduct.

[51] But I am of the view that that passage must be read in a manner that is consistent with Ferris, which was affirmed by the Supreme Court of Canada. That is, I must be satisfied that there is evidence upon which the trier of fact could conclude the meaning of the words and assertive conduct. I am not convinced that A.R.M.'s words and conduct do more than suggest sexual assault. Standing alone, they may not establish relevance and probative value pursuant to Ferris.

[52] But A.R.M.'s words and conduct do not stand alone.

[53] In my view, M.R.'s statements to P.M., Ms. Busel, Dr. Koczerginski and PC Boyce constitute independent evidence that give meaning to A.R.M.'s words and conduct. His statements, in fact, play two roles.

[54] First, they provide interpretation of A.R.M.'s words and conduct. Second, they corroborate her assertions. While related in this case, these concepts are distinct. Consider a code-word or phrase that is known to an accused person. On its face, it may be so cryptic as to be devoid of relevant meaning. An example from literature illustrates the point. One would be unable to ascribe to the phrase "the eagle has landed," on its own, the notion that a German operative had arrived in England for the purpose of abducting Winston Churchill. One would require interpretation of that phrase from someone equipped to do so. That, of course, leaves open the question whether the operative did, in fact, arrive in England for that purpose.

[55] M.R.'s statements come from the vantage point of someone who knows A.R.M. and was, by his own admission, alone with her at the relevant time. On its face, his statement to PC Boyce goes beyond merely guesswork concerning the meaning of the phrases and words she used. By adding to the phrases attributable to her, M.R.'s statement has the effect of placing him at the relevant time and place. His interpretation of "white trumpet" was unique, as was his explanation of the meaning of "rain." His admission, albeit couched in terms of uncertainty, that he had vaginally penetrated A.R.M. gives meaning to her sexualized behaviour on the chair, on or about her bed, and on the floor. His belief that "daddy broke in her mouth" very possibly meant that he had ejaculated in her mouth gives meaning to that otherwise cryptic phrase.

[56] Second, M.R.'s statements to P.M., Ms. Busel and Dr. Koczerginski – that he did or might have sexually abused his daughter or that he "did all kinds of things to her" – corroborate A.R.M.'s statements and related conduct in a general way. The parts of his statement to PC Boyce that I have referred to above do so in more particular ways.

[57] In the context of all the relevant evidence, A.R.M.'s assertions can be understood as meaning that M.R. engaged in conduct that violated her sexual integrity. That conduct included oral and vaginal penetration to the point of ejaculation.

[58] Even if the precise content of her assertions cannot be determined at this stage, that difficulty does not foreclose the reliability analysis.

B. Circumstances in which A.R.M.'s Assertions Came About

[59] In the peculiar circumstances of this case, which required an interpretive exercise, it is most convenient to address the question of the inherent trustworthiness of A.R.M.'s assertions at this stage of my reasons.

[60] The concerns here are perception, memory, narration and sincerity.

(i) Perception

[61] Defence counsel submitted that I ought to be concerned that A.R.M. has a "low mental capacity to accurately perceive and relate events." This proposition stands in contrast to the Supreme Court of Canada's description of the modern, common sense approach to children's evidence in R. v. B.(G.). At para. 48, Justice Wilson wrote:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

[62] In my view, as a toddler of 30-33 months, A.R.M. was able to perceive what was happening to her.

(ii) Memory

[63] It may be true that small children's memories are less robust than those of older children and adults. But in this particular case, as in Khan, that concern is greatly attenuated by the fact that A.R.M. made her assertions to her mother within a short time after the events could have taken place.

(iii) Narration

[64] The narration danger, or the danger of ambiguity, is attenuated by the fact that the assertions are not "incomplete utterances" as was the case in Ferris, supra. P.M. paid very close attention to A.R.M. over the entire weekend. There is no suggestion that she heard, or relayed, only fragments of what A.R.M. tried to convey. What is more, M.R. himself also relayed some of those assertions to PC Boyce.

(iv) Sincerity

[65] There is no reason to believe that A.R.M. had a motive to fabricate in this case. The family unit was intact at the time of her assertions and she had not yet moved into a shelter with her mother. She was not exposed to sexual conduct on television or by her parents' behaviour.

[66] Given her age, her assertions can also be characterized as bearing their own "special stamp of reliability" as was the case in Khan. She is unlikely to have concocted a deliberate untruth – especially about sexual acts that were beyond her ken.

[67] Also, it must be remembered that her assertions were corroborated by M.R.'s statements.

C. Reliability of the Narrator(s) and Corroborating Evidence

(i) P.M.'s Narration

[68] I agree with the Crown's submission that any concerns that might arise concerning P.M.'s reliability are to be left to the trier of fact pursuant to R. v. Humaid. The Defence did not really dispute this, and her cross-examination did not lend itself to any argument that I should exercise the very limited discretion discussed at para. 57 of that decision.

(ii) M.R.'s Corroborating Evidence

[69] Defence counsel submitted that I should be concerned about the reliability of M.R.'s statements to PC Boyce because they evolved over the course of a Reid-type interview. For the same reasons set out in Humaid, supra, I am of the view that any such concerns are to be addressed by the trier of fact. Moreover, as the Supreme Court of Canada stated in R. v. MacKenzie, "doubtful evidence may be corroborated by other evidence, even other doubtful evidence."

[70] I would also repeat that the admissibility voir dire is not meant to take on the scope of the trial proper.

(iii) Other Evidence Referred to by the Crown

P.M.'s Reaction

[71] The Crown relies on Badgerow, supra, for the proposition that it is open to the court to consider P.M.'s reactions to A.R.M.'s assertions as evidence of their reliability. It must be remembered that Badgerow concerned unintended implied assertions through non-verbal conduct. A central feature of the Crown's application in that case was the fact that the actual assertion – from a Bell Canada employee – had been lost. The police conduct that ensued was not intended to communicate anything to anyone. That is manifestly not the case here.

[72] Even if I am wrong about that, I would be reluctant to place much weight on P.M.'s reactions and subsequent behaviour. Confronted by what she perceived to be allegations that her husband had sexually abused their daughter, it is not surprising that she would believe her child and take significant measures to protect her. But it says little about the reliability of the assertions.

D. Residual Discretion/Probative Value and Prejudicial Effect

[73] The probative value of the evidence is significant. From it, the trier of fact could conclude that A.R.M.'s assertions were attempts to communicate that M.R. had sexually assaulted her in a number of ways. Her assertions also appear to be corroborated by M.R.'s statements to various other witnesses.

[74] While it is obvious that M.R. does not have the ability to test A.R.M.'s assertions directly by cross-examining her, other means aimed at trial fairness are at his disposal. This trial is by no means over. Counsel has already been able to cross-examine P.M. on certain other interpretations of A.R.M.'s behaviour. Further arguments will undoubtedly be made about the "ultimate" reliability of those assertions. Counsel has also had the opportunity to cross-examine P.M., Ms. Busen and Dr. Koczerginski concerning the equivocal nature of some of M.R.'s statements. In addition, further evidence and argument concerning the reliability of those statements remains to be heard.

[75] As such, there is no concern that the ultimate trier of fact will rush to judgment.

VI. Conclusion

[76] A.R.M.'s assertions are necessary and reliable and therefore admissible. It will be for the ultimate trier of fact, having heard all the evidence, including any presented by the defence, to determine whether they are true.

Released: February 25, 2015

Justice P. F. Band