WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Date: February 27, 2018

Court File No.: C80223/15

Ontario Court of Justice

Parties

Between:

Children's Aid Society of Toronto

Katelyn Ostropolec, for the Applicant

Applicant

- and -

G.S.

Peter S. Carlisi, for the Respondent

Respondent

Gilead Kay, on behalf of the Office of the Children's Lawyer, for the child

Hearing Information

Heard: February 26, 2018

Justice: S.B. Sherr

Evidentiary Ruling

Part One – Introduction

[1] In this twice-amended status review application, the Children's Aid Society of Toronto (the society) is seeking an order pursuant to section 65.2 of the Child and Family Services Act, placing the child, D.S. (the child), age 12, in the custody of her maternal aunt. The society also seeks an order that the respondent, G.S., (the father) have only supervised access to the child once each month.[1]

[2] The father asks that the child be placed in his care, or in the alternative, for an order that he have significant access with the child.

[3] The Office of the Children's Lawyer, on behalf of the child, supports the society's position.

[4] The trial of this matter began on February 26, 2018. At the outset of the trial, the father asked the court to exclude child statements contained in the trial affidavits of two society workers.

[5] It was agreed that a voir dire would be held to determine the admissibility of these statements on the following terms:

a) The voir dire would be restricted to child statements made to the two society workers. A separate voir dire will be held if the father wishes to introduce child statements as part of his case.

b) The evidence on the voir dire will be applied to the trial proper, subject to admissibility rulings.

c) It was agreed that the voir dire would be restricted to the issue of the threshold reliability of the child's statements. It was agreed by the parties that it would be emotionally harmful for the child to testify. The necessity element of the principled hearsay exception was met.

[6] The court heard evidence from the two society workers on the voir dire. They were both cross-examined. The father did not call evidence on the voir dire.

[7] The society prepared a very helpful chart listing the child's statements to the two workers that they wished to admit. Beside each statement, the society set out the purpose for which it sought to introduce the statements. The society seeks to introduce over 80 statements made to its Family Service Worker (the FSW) and about 170 statements made to its Children's Service Worker (the CSW).[2] The society seeks to introduce many of the statements for the truth of their contents and other statements for the purpose of proving the child's state of mind. The charts were marked as Exhibits A and B for the purpose of identification at the voir dire.[3]

[8] The father asked that the child's statements be excluded, whether introduced for the truth of their contents or to establish the child's state of mind.

Part Two – Legal Considerations

[9] Child hearsay can be admitted as an exception to the hearsay rule, using the principled approach of establishing necessity and reliability as set out in R. v. Khan, [1990] 2 S.C.R. 531.

[10] The parties agreed that the necessity portion of the test has been met.

[11] The court in Khan set out many considerations to assess reliability, such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement. There is not a strict list of considerations for reliability. The matters relevant to reliability will vary with the child and with the circumstances.

[12] In determining the issue of reliability, the legal test for the court to apply at a voir dire involving child statements is whether the circumstances surrounding the statements achieve threshold reliability – not whether the statements are ultimately reliable. The question for threshold reliability is whether the particular statement is sufficiently reliable to be admitted. See: R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57.

[13] The court must employ a functional approach by first identifying the particular dangers posed by the proffered hearsay and then considering whether those dangers may be adequately overcome so that the hearsay may be considered sufficiently reliable to be admitted for consideration by the trier of fact. At paragraphs 61-63 of Khelawon, Charron J. observes that the reliability requirement will generally be met in one of two ways:

(1) that there is no real concern about whether the statement is true or not because of the circumstance in which it came about; or

(2) that no real concern arises from the fact that the statement is presented in a hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination.

[14] On the threshold test of reliability, it is not necessary that the judge be satisfied on each and every potential indicator of reliability. Weaknesses in some areas may be compensated for by strength in others. See: Children's Aid Society of Ottawa-Carleton v. L.L., [2001] O.J. No. 4587 (SCJ); Halton Children's Aid Society v. T.D.L.D.S.L., 2015 ONCJ 255.

[15] The recent Supreme Court of Canada decision in the case of R. v. Bradshaw, 2017 SCC 35, provided a synthesis and reorganization of the law pertaining to the admissibility of hearsay statements. The Bradshaw case was about the use of corroborative evidence to support the threshold reliability of a hearsay statement.[4] It appears to be a reorganization of the restatement of the hearsay test set out in R. v. Khelawon, as described in paragraphs 12 and 13 above.

[16] The following statements made in Bradshaw are pertinent to the hearsay analysis:

a) The presumptive inadmissibility of hearsay may be overcome where its proponent establishes on a balance of probabilities that what is proposed for admission falls within a categorical exception, or satisfies the twin criteria of necessity and threshold reliability under the principled approach. – Bradshaw at pars. 22-23.

b) In determining threshold reliability, the trier of fact must identify the specific hearsay dangers inherent in the out-of-court declaration. The trier of fact must then identify the means by which these dangers can be overcome. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. – Bradshaw at para. 26.

c) The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah[5], at para. 30) – Bradshaw at para. 27.

d) Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination" (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75;[6] Youvarajah, at para. 36).

e) A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 55). – Bradshaw at para. 30.

f) The two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive (Khelawon, at para. 65) and "factors relevant to one can complement the other". – Bradshaw at para. 32.

g) The distinction between threshold and ultimate reliability, while "a source of confusion", is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). – Bradshaw at para. 39.

h) In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge's inquiry serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact's role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. – Bradshaw at para. 41.

[17] Justice Craig Parry recently applied Bradshaw in the case of Children's Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852, [2017] O.J. No. 6581 (OCJ), in determining the admissibility of child hearsay. Justice Parry reviewed the following comments made in Bradshaw about the use of corroborative evidence in the threshold reliability analysis at paragraphs 46 and 47:

[46] Corroborative evidence is not capable of enhancing the procedural reliability of a hearsay statement. However, in appropriate circumstances, it is capable of enhancing the substantive reliability of a hearsay statement. To do so, it must be capable of buttressing the truthfulness or accuracy of the material aspects of the hearsay statement. In other words, the corroborative evidence must address the fact in issue that the hearsay statement attempts to prove, not some other non-material fact. The corroborative evidence must also be trustworthy. Finally, corroborative evidence can only enhance the substantive reliability of a hearsay statement if, on a balance of probabilities, it rules out any plausible explanations that disclose that the maker of the hearsay statement was either untruthful or unreliable. In other words, having considered plausible alternative explanations for the making of the statement, the trier of fact must be satisfied that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of the material aspects of the statement.

[47] As the majority in Bradshaw summarized:

In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:

(1) Identify the material aspects of the hearsay statement that are tendered for their truth.

(2) Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case.

(3) Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.

(4) Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

[18] Justice Parry also reviewed the categorical state of mind exception in paragraph 39 of his decision as follows:

[39] Declarations of the declarant's contemporaneous state of mind, emotion, or intention are considered in some circumstances to constitute a common law exception to the hearsay rule. In these circumstances, the declarant has little opportunity to reflect upon and concoct a false account of their state of mind. Therefore there exists a circumstantial guarantee of the trustworthiness of the statement. The passage of time also erodes the likelihood the declarant witness providing equally accurate and unclouded recounting of the same state of mind during the course of the trial. In that sense, the contemporaneous state of mind declaration is considered necessary to obtaining the most truthful account of the declarant's state of mind. In other cases, courts have ruled that the contemporaneous declarations of the declarant's state of mind can be received as original evidence, as circumstantial evidence of the declarant's state of mind, and thus not hearsay at all. However categorized, this type of declaration has long been recognized as not attracting the hearsay exclusionary rule.

[19] The state of mind hearsay exception includes a child's wishes and preferences and statements made by the child about his or her physical, mental and emotional state. The statements must assert a contemporaneous physical, mental or emotional state. They cannot include the reason for the child's statement and should not be made under circumstances of suspicion.

Part Three – Analysis

3.1 State of Mind Statements

[20] The child's statements the society wishes to introduce pursuant to the state of mind exception can be grouped into categories as follows:[7]

a) The child's views and preferences about where she wishes to live.

b) The child's views and preferences about how much contact she wants with the father.

c) The child's feelings about her aunt and her home.

d) The child's feelings about her relationship with the father.

e) The child's feelings about the access visits with her father.

f) The child's feelings about being pressured by the father to come and live with her.

g) The child's feelings about statements made by the father about the maternal aunt.

h) The child's statements about her stress level.

i) The child's desire not to see a friend of the father's.

j) The child's feelings about her sisters.

k) The child's feelings about how she is sleeping, eating and functioning.

l) The child's pride in her school performance.

m) The child's feelings about counseling.

[21] The society was able to establish that the child's statements within these categories met the necessary requirements for admission pursuant to the state of mind exception.

[22] The child's statements were made contemporaneously to independent professionals. The FSW and CSW had a duty to record their interviews with the child and they recorded them within 24 hours. The society workers were independent and had no agenda to fabricate the evidence or mislead the court. The court is satisfied that the statements made were accurately recorded.

[23] The statements asserted a contemporaneous mental or emotional state of the child. The society did not attempt to introduce statements that set out the "why" of the child's feelings as part of the state of mind exception.

[24] The child's statements are consistent. Similar statements about the child's state of mind were made to both workers. There was no evidence led on the voir dire that indicated that the statements were made under circumstances of suspicion. The father indicated in his opening statement that his position will be that the maternal aunt has coached the child to make these statements. If this evidence is led at trial, the court will determine what weight to give these statements at that time.

3.2 Truth of Contents

[25] The society wishes to admit the balance of the child's statements set out in its charts marked as Exhibits A and B on the voir dire for the truth of their contents.

[26] The hearsay dangers in admitting the child's statements are the lack of ability to contemporaneously cross-examine the child and the resultant difficulty of assessing the child's perception, memory or sincerity with precision.

[27] The child's statements the society wishes to introduce for the truth of their contents can be grouped into categories as follows:[8]

a) Why she wants to live with her maternal aunt.

b) Positive aspects of her life with the maternal aunt.

c) Her interactions with the maternal aunt.

d) Why, at times, she has refused to see her father.

e) Why she has sought reductions in access time with her father.

f) Her description of the father using her to contact females on Facebook.

g) Her access experiences with the father.

h) The father's behaviour at access visits and on phone calls.

i) Her experiences of access at her father's friend's home.

j) Her father denigrating the maternal aunt and asking her to make false statements about the maternal aunt to the society.

k) Her father's efforts to pressure her to live with him.

l) Her father's conduct to her when she lived with him, including allegations of drug use by him and inappropriate physical discipline.

m) Her interaction with her sisters.

n) Why she wants to change her last name.

[28] The court finds that there are sufficient elements of both procedural and substantive reliability present in this case to admit most of the child's statements for the truth of their contents, as requested by the society.

[29] In terms of procedural reliability, the court finds that the society workers' accounts of their conversations with the child were recorded accurately. Both workers are experienced and have received training in interviewing children. The workers had a duty to accurately record their interviews with the child. They both recorded their notes within 24 hours of the interviews with the child and were confident that their recordings were substantially accurate. They made these notes pursuant to their professional responsibilities. The FSW testified that he would write down simultaneously any quotes attributed to the child and then transcribe them into the society's computer system within 24 hours. Neither worker had any motive to record the notes inaccurately.

[30] The workers are very familiar with the child and were able to assess her demeanour. They both described the child as open and comfortable with them.[9] They both testified that she spontaneously made statements about her relationship with the father, without prompting, and willingly provided them with information about her life. She would answer their questions without hesitation and provided detailed and coherent answers.

[31] Both workers testified that they did not lead the child to make her statements and both were confident that her statements were made voluntarily. The FSW sets out that he recorded the questions he asked the child and gave examples to the court. The CSW described her discussions with the child as conversational.

[32] The reliability of the statements made to the CSW were of a higher quality than those made to the FSW, as most of the statements made to the FSW by the child were during telephone conversations. This made it more difficult for him to assess her demeanour. This will go to the weight to be given to the statements made to him when assessing their ultimate reliability.

[33] The society has also established sufficient substantive reliability for the child's statements to be admitted – the statements having achieved threshold reliability.

[34] The child's statements to the society workers are very similar. They are generally consistent and have been made over a long period of time. Many of the statements are specific and detailed, lending credence to them.

[35] The statements of the child are consistent with the position she is taking in this trial.

[36] The child was described as open and forthcoming by both workers. They noticed no change in tone by the child when making her statements that would cause them to believe they were not accurate.

[37] The child is of an age where she has an understanding of the statements she is making and the importance of those statements.

[38] The child's statements also have some balance to them. She makes statements about positive visits with the father and positive comments about her relationships with her sisters.

[39] The statements made to the CSW were made in private settings.

[40] The workers both testified that there was no evidence that the child was being coached or influenced to make her statements and neither believed that this was happening. The CSW emphasized that the child was adamant that these were her views – no one else's.

[41] The father did not lead any evidence on the voir dire to indicate that the child had been coached or influenced by any person (in particular, the maternal aunt) to make any of these statements. It may be that such evidence is led at trial and if so, the court will weigh the ultimate reliability of these statements when making its final decision.

[42] The substantive reliability indicia are not perfect. The following concerns were identified:

a) The child made an allegation of physical abuse by the father to the police that she later recanted.

b) The child denied making a call to her sister in July, 2017. The CSW believes the child did make this call.

c) Many of the child's statements to the FSW were over the telephone. He could not assess if anyone else was present or influencing the child.

[43] These adverse factors, however, are not sufficient to reject the child's statements at the threshold reliability stage – not all of the indicia of reliability have to be established to perfection at this stage of the analysis. These factors will go to the weight to be given to the child's statements when the court determines their ultimate reliability.

[44] There is an exception to this analysis.

[45] The child has made statements about incidents that occurred when she lived with the father several years ago. In particular, she has made allegations of drug use by him and his partner at the time and inappropriate physical discipline by the father against her.

[46] The court finds that these statements are not sufficiently reliable to meet the threshold reliability test as:

a) The child has already recanted her allegations of inappropriate physical discipline by the father.

b) These alleged incidents occurred several years ago. The child's memory of these incidents may be flawed. There is no way to test this.

c) These allegations weren't made in a contemporaneous manner. They were made long after the child came into society care.

[47] The court finds that it would not be just to require the father to defend himself from these historic allegations at this stage of the case. These statements will not be admitted for the truth of their contents.

[48] The court finds that the balance of the child statements the society seeks to introduce for the truth of their contents are admissible. The court finds that the statements are sufficiently reliable to be admitted.

3.3 Admission for Other Purposes

[49] Child statements can be admitted for purposes other than the truth of their contents.

[50] If the court hadn't admitted the child statements for the truth of their contents, it would have admitted the statements the child made about the father for the purpose of demonstrating the nature of her relationship with him. The society and the child's counsel should be free to argue that the statements the child is making, whether true or not, are indicative of a damaged relationship the child has with the father. The father should also be free to pursue his theory that these statements are indicative of the child being unduly influenced by the maternal aunt. The statements that the child made about incidents that occurred while she lived with the father are admissible for these purposes.

Part Four – Order

[51] The court orders that:

a) The child's statements set out under the state of mind exception in the charts marked as Exhibits A and B on the voir dire are admissible for this purpose.

b) The child's statements set out for the truth of their contents in the charts marked as Exhibits A and B on the voir dire are admissible for this purpose, save and except for the child's statements about incidents that occurred when she lived with the father - in particular, the father's alleged drug use and use of inappropriate physical discipline on her.

c) The child's statements about incidents that occurred while she lived with her father are admissible for the purposes of establishing the nature of the relationship between the child and the father and to establishing that the child is being unduly influenced by the maternal aunt.

[52] The court thanks counsel for their able submissions on these evidentiary issues.

Released: February 27, 2018

Justice S.B. Sherr

Footnotes

[1] The child is a crown ward. She has been placed in the maternal aunt's home since July 29, 2016.

[2] Some of these statements have blended purposes – the society seeks to admit parts of the statement for the child's state of mind and other parts of the statement for the truth of their contents.

[3] These charts saved the court an enormous amount of time, clarified the argument and facilitated the court being able to rule on the evidentiary issues in a timely manner.

[4] This was not a child's statement.

[5] R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720

[6] R. v. Hawkins, [1996] 3 S.C.R. 1043

[7] This list may not be exhaustive, but substantially characterizes the statements.

[8] This is not exhaustive. Some statements may fall outside of these categories.

[9] The CSW deposed that: "the child likes to talk to me and share her thoughts and concerns. She is open and speaks clearly. The child seems to feel comfortable with me. She listens and converses easily".