Court Information

Date: June 26, 2018

Information No.: 17-1717

Ontario Court of Justice

Her Majesty the Queen

v.

C.M.

Decision

Delivered by the Honourable Justice S. Latimer

on June 26, 2018, at Kitchener, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(2.1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE S. LATIMER, ONTARIO COURT OF JUSTICE

Appearances

D. Kennedy – Provincial Crown

T. Loughborough – Counsel for C.M.

Introduction

The Crown applies to admit out-of-court utterances of a four-year-old boy during a trial involving allegations of child abuse. These statements are hearsay and presumptively inadmissible. Ms. Kennedy submits, however, that they should be admitted under the principled approach to hearsay.

Mr. Loughborough, while reasonably admitting that the necessity component has been made out, challenges whether threshold reliability has been established. The child's statements are inconsistent, do not contain a promise to tell the truth, and have never been subject to anything even approaching cross-examination. It is submitted that the Crown has established neither procedural nor substantive reliability, leaving the default position of inadmissibility.

I note that we have proceeded up until this point in a blended trial voir dire format. The voir dire portion has ended and I have heard admissibility submissions from the parties. Following this ruling, I understand that the Crown's case will continue, followed by the defence case, if such a decision is made.

I am cognizant of the fact that in this judge alone trial, I am essentially wearing two hats; one as a trier of law, the other as a trier of fact. As trier of law, I am determining whether N.S.'s out-of-court statements are admissible. In that respect, I am required to assess the evidence presented to the extent it is required for me to complete my task on this motion.

The Principled Approach to Hearsay

Justice Watt, writing for the Ontario Court of Appeal, recently set out the law in this area with his customary clarity in Regina and M.G.T., 2017 ONCA 736, [2017] ONCA 736, 357 CCC (3d) 109, paragraphs 114 to 117:

Hearsay is an out-of-court statement tendered for the truth of its contents. Generally, hearsay is not taken under oath; the trier of fact is deprived of the opportunity to observe the declarant's demeanour at the time the statement is made; and hearsay cannot be tested through cross-examination: Regina v. Bradshaw [2017] SCC 35 at paragraph 20. The hearsay statement may be inaccurately recorded. The trier of fact cannot easily investigate the declarant's perception, memory, narration or sincerity: Regina v. Khelawon [2006] SCC 57 at paragraph two; Regina v. Baldree [2013] SCC 35 at paragraph 32.

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, paragraphs 22-23.

A proponent can overcome hearsay dangers and establish threshold reliability by showing, on a balance of probabilities either that there are adequate substitutes for testing truth and accuracy (procedural reliability), or there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability): Bradshaw, at paragraph 27; Khelawon, paragraph 61-63; Regina v. Youvarajah, [2013] SCC 41, at paragraph 30.

Procedural reliability requires adequate substitutes for personal presence, the oath or its equivalent and contemporaneous cross-examination. This is so that the trier of fact has a satisfactory basis to internally evaluate the truth and accuracy of the hearsay statement. Proxies for traditional safeguards include video recording the statement; an oath or its equivalent; a warning about the consequences of lying; and usually, some form of cross-examination of the declarant, such as at the preliminary inquiry, or of a recanting witness, at trial: Bradshaw, at paragraph 28.

I would stop here and make two immediate points. First, the Crown applicant quite properly does not seek to fit N.S.'s statements within any of the categorical exceptions. This application is exclusively focused on admissibility via the principled approach.

Second, I am not at all satisfied that the circumstances before me make out procedural reliability. The partial audio recording is not an adequate substitute for the personal presence of the witness, nor is there a present substitute, adequate or otherwise, for cross-examination.

I do not accept Ms. Kennedy's submission that the existence of inconsistencies within the out-of-court utterances is an adequate replacement in the circumstances for cross-examination. As Mr. Loughborough aptly stated, the fact of prior inconsistencies is the start of a cross-examination, not the end. That submission is consistent with prior statements from our Supreme Court, such as Regina and Lyttle 2004 SCC 5, [2004] 1 SCR 193, 180 CCC (3d) 476, at paragraph one:

Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.

This conclusion means that the only path to admissibility left for the Crown is substantive reliability. Returning to M.G.T., Justice Watt explained this term at paragraph 118:

Substantive reliability is established if the hearsay statement is inherently trustworthy. To determine whether a statement is inherently trustworthy, we are to consider the circumstances in which it was made and any evidence that corroborates or conflicts with it. The standard for substantive reliability is high. This requires that a judge or court be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process: Bradshaw, at paragraph 40.

Confirmatory Evidence Post-Bradshaw

The parties disagree about what constitutes confirmatory or corroborative evidence following the Supreme Court's recent decision in Regina v. Bradshaw. In that judgment, a majority of the Court described the proper approach as follows at paragraph 57:

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; and

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.

What was debated before me was whether evidence should be considered individually or collectively under step four. The present disagreement is best captured by paragraph 121 of the Bradshaw judgment and language employed by Justice Moldaver on behalf of a minority of the Court:

Second, in applying her approach, my colleague parses the analysis by examining whether each individual piece of corroborative evidence demonstrates that the "only likely explanation" is the declarant's truthfulness. This ignores the reality that even if an individual piece of extrinsic evidence does not satisfy my colleague's requirement on its own, it may nonetheless work in conjunction with other extrinsic evidence or features of substantive reliability to satisfy the test for threshold reliability: see Regina v. McNamara (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), at paragraphs 278-79, points four and five, on the nature of corroborative evidence in general).

Yet, according to her test, for a piece of corroborative evidence to make its way onto the evidentiary scale for threshold reliability purposes, it must effectively be independently capable of tipping the scale. This restrictive test fails to look at the picture as a whole and discards corroborative evidence that could play an important role in satisfying threshold reliability.

In my view, this debate can be resolved by considering the approach of the Ontario and Manitoba Courts of Appeal in two decisions that post-date Bradshaw. First, in Regina v. Johnston 2018 MBCA 8, at paragraph 116:

Bradshaw requires that the corroborative evidence led at the voir dire rule out the speculative explanation such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the assault on the complainant by the accused. In this case, "The evidence taken as a whole corroborated the reliability of the complainant's statement".

In that paragraph, the Manitoba court was citing the language of our Court of Appeal in Regina v. Thyagarajah, 2017 ONCA 825 142 WCB (2d) 720. In that case, the Court stated at paragraph 11:

On the second branch of the appellant's submission, the Crown fairly acknowledges that the DNA evidence standing alone could not corroborate the complainant's evidence that she did not consent to the sexual activity. However, the DNA evidence was only part of a much broader evidentiary record about the circumstances of the sexual assault. Those circumstances included the complainant being found half naked on the bathroom floor, crying. The evidence taken as a whole corroborated the reliability of the complainant's statement: see Bradshaw at paragraph 4.

As a result of these two decisions, I believe I am entitled to look at the evidence as a whole when considering whether it corroborates the material aspects of the proffered hearsay, and whether it addresses the issue of whether N.S. is lying about who assaulted him.

The Evidentiary Record

On Tuesday, February 21st, N.S. rode the bus home from kindergarten. I accept he had no visible injuries at the time, particularly on his face. While on the bus, an issue arose regarding whether he had inappropriately touched another young child, Hailey. When N.S. reached his stop, he ran off the bus happily and with a "huge smile" to meet the respondent who gave him a hug.

I should say I am satisfied on the evidence of Ms. A.C. and Olivia, the bus monitor, that this is who picked up N.S. Olivia explained to the respondent what had occurred during the bus ride involving N.S. and Hailey. The respondent was dating N.S.'s mother and living, at least intermittently, in the apartment at the time of the allegations. A.C., one of the Crown witnesses, was best friends with the mother at the time. Much of the next portion of evidence comes exclusively from her.

I note there are live credibility concerns with respect to her evidence, given the fact that she acknowledged intentionally lying to the police in her first statement at the behest of N.S.'s mother, who did not want the authorities to know that the respondent was staying in their home. I am obligated to approach her evidence with caution given this reality.

Ms. A.C. advises that at approximately 5:00 p.m. on Tuesday, N.S.'s mother posted on Facebook about N.S.'s face being swollen on account of being punched and pushed at school. Later that evening, while a group of people are having a smoke, the respondent discussed injuries observed on N.S.'s head near his hairline. These specific injuries are observable on the photographs of N.S. that made exhibits.

The next morning, Ms. A.C. saw fingermark like bruises on N.S.'s cheeks. By this point, she had been told by his mother that the injuries were caused by a boy at school, Isaac. While waiting for the bus, she picked N.S. up and asked what happened. She stated "I heard you got into an altercation on the bus with Isaac". N.S. responded "No. Isaac didn't do it. C. did". Ms. A.C. did not say anything else, just kissed him and put him down.

Ms. A.C. recalled N.S.'s mother being very close when N.S. mentioned C. Ms. A.C. testified that she knew N.S. reasonably well because she had kids and was such a good friend with his mother. She would often take N.S. with her when her family would go to the park. She described his demeanour when he spoke to her and testified that he looked scared. N.S. got on the bus and went to school.

Stephanie Gamble, an early childhood educator at M[…] Public School observed N.S. and noticed his facial injuries when he exited the bus at school. He seemed "tired, drained, and not himself". Once in the classroom, she located a note in N.S.'s mailbag from his mother, complaining that an incident at school the day before was the source of N.S.'s injuries. She was upset the school did not contact her.

Almost immediately after reading the note, the class headed down the hall to the gymnasium. Ms. Gamble was next to N.S. in line. She asked him if anything happened at school and N.S. responded that Isaac has pushed him while running and he had hurt his knees. He did not tell a teacher because he did not want to. Ms. Gamble thought this was unusual, based on how N.S. normally acted.

She asked him specifically about the marks on his face and he responded "the big man C. did it". Ms. Gamble asked if the big man C. lives at his house and N.S. said no.

Ms. Gamble spoke next with the JK teacher, Mark Woodfield. She told him what N.S. had said and suggested he speak to N.S. Both Ms. Gamble and Mr. Woodfield testified before me. Both presented as dedicated educators and people dedicated to the well-being of their students. I accept that their students would have a level of comfort speaking to them. Mr. Woodfield talked about how telling the truth was a theme that is developed in kindergarten throughout the year. It is interwoven into many of the things that the educators do with the children.

Neither educator witnessed any injuries on N.S. on February 21st. Mr. Woodfield, after speaking to Ms. Gamble, took N.S. out of gym class to speak in the hall. He testified that he was conscious of asking open-ended questions to N.S. and therefore, did not mention C. to N.S. before N.S. said that name first. He testified that he said "I see markings on your face". N.S. said "big man C. did that".

Mr. Woodfield testified that N.S. is normally a little shy, but in this instance, he just came out and said what he just said "matter of factly".

Mr. Woodfield continued asking: Where is the big man C.?

N.S. responded: "He's at my house".

Mr. Woodfield: Were you play fighting?

N.S.: Fighting.

Mr. Woodfield: Outside or inside?

Answer: Inside.

At this point, Mr. Woodfield did not ask anything further. Gym class ended and the class went to their normal classroom. There was open play period. Mr. Woodfield and Ms. Gamble spoke again and Mr. Woodfield decided to go to the principal, where a meeting was arranged with N.S. in the principal's office. Present were N.S., Mr. Woodfield, the principal, and a youth worker at the school.

Mr. Woodfield testified that in the office, the principal was now the one asking N.S. questions. The principal asked about an incident with Isaac and N.S. said "he hurt my knee". The principal said but we see markings. N.S. said "the big man C. did that to me. We were fighting. I was crying. He was mad at me". Mr. Woodfield advised that he was clear in his recollection of what N.S. said, but could not say precisely what the adults were saying. He recalled again that N.S. spoke without hesitation.

As soon as the principal asked about the markings, Mr. Woodfield recalled N.S. saying the big man C. did that to me. The principal said okay, N.S. Thanks for sharing the information. You can go back to class now. Mr. Woodfield walked him back to class.

N.S. had missed lunch with his classmates, but Ms. Gamble sat with him while he ate alone in the classroom. While sitting together, she noticed red dots on his hairline that she had not seen earlier in the morning. She asked him what had happened. He responded "big man C. punched me".

At this point, Ms. Gamble believed she was obligated to call Family and Child Services, and she did, after speaking again to Mr. Woodfield. At another point in the school day, I believe in the afternoon, there was another early childhood educator who attempted to speak to N.S. about his injuries. He did not engage and essentially ran away to another part of the playground.

The call to F & CS caused Kaitlyn O'Keefe, a child protection worker, to drive to the school with Detective Carrie Richmond from the Waterloo Police Service. They arrived at the school, spoke to staff, and eventually N.S. Their conversation with him took place somewhere in the office area. A staff member brought N.S. in and very quickly, Detective Richmond left to try and get an identification officer to come to the school to take photographs of N.S.'s visible injuries.

While alone with N.S., Ms. O'Keefe engaged in conversation with him about his shirt, which had a Paw Patrol symbol on it. They also spoke about his cat. She described, however, out of the blue N.S. saying "C. hurt me". This was before Detective Richmond returned and before the audio recording device was turned on. Ms. O'Keefe immediately turned it on.

I have heard the recording and I have a transcript of it. At the beginning, N.S. says "C. was hurting me when I was being bad". Shortly after, N.S. stopped being responsive to questions and largely said I don't know after speaking about his pets and some other matters.

The tape was turned off at what was believed to be the end of the interview and before N.S. was returned to class and Ms. O'Keefe took photos of him with her phone. During this off audio portion, N.S. again said "C. hurt my head while he was punching my head. That's not very nice". The recording was turned back on and photos were taken. N.S. responded to several questions by saying he wanted to go back to class.

It was now close to the end of the school day.

A decision was made that the police and FCS would follow N.S. home and speak to his mother. She was waiting for N.S. at the bus stop. After introductions were made, Ms. O'Keefe said that they were investigating the marks on his face. His mother said Isaac had caused them and N.S. interrupted to say "It was not Isaac. It was C.". The mom responded why are you lying? C. would never do that. Ms. O'Keefe did not recall N.S. responding to the statement from his mother. The group moved down a catwalk to continue speaking more privately, but still outside.

Ms. A.C. testified that during this time period, she was at home when there was a knock at her door. It was the respondent asking where N.S.'s mother was. Ms. A.C. could see her through a window near her front door, identified on Exhibit 6 and Ms. A.C. pointed to the group. She was surrounded by other adults; that is, the mother was surrounded by other adults and N.S.

When the defendant saw N.S., his mother and the other adults together, it seemed to shake him up. And he whimpered when he looked down and noticed where N.S.'s mother and the group was, saying either oh, shit, or, oh, fuck and then, no, no, no. He nervously ducked down holding the railing which made Ms. A.C. believe "something was up".

N.S. later went to McMaster University to be examined by a doctor. He was then taken from his mother's care on a temporary basis, placed with his grandparents. The next day a video interview took place. I have reviewed that statement. N.S. does not engage with the interviewers despite multiple efforts. He is more interested in playing than speaking.

At one point he says that he caused the injuries. He alternates moods between happy and upset. At one point he says that he walks to school, which I am satisfied does not occur. He is inconsistent at another point about whether he was or was not hit by C.

Analysis

I remind myself of Justice Watt's articulation of substantive reliability from paragraph 118 of M.G.T.:

Substantive reliability is established if the hearsay statement is inherently trustworthy. To determine whether a statement is inherently trustworthy, we are to consider the circumstances in which it was made and any evidence that corroborates or conflicts with it. The standard for substantive reliability is high. This requires that a judge or court be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process: Bradshaw, at paragraph 40.

Upon deliberation, I am satisfied the Crown has met its burden on this application to admit N.S.'s utterances at trial. I am satisfied to the requisite standard that they are substantively reliable. I consider the following factors relevant to my determination in this matter:

1) Brevity and Recording

The statements provided were either quite brief or captured on reliable recording devices. The brevity of the unrecorded statements alleviates any concern I have about whether the utterances were properly heard and conveyed to the Court.

2) Trusted Recipients

The initial statements were made to trusted individuals in N.S.'s life; Ms. A.C., and then in particular, the school staff, whom he deals with on a daily basis. That context makes his utterances more reliable: see Regina v. S.J. [2011] ONSC 6376, paragraph 24.

3) Open-Ended Questioning

The questions posed were open-ended, non-leading questions. See Regina v. J.M. (2010) 2010 ONCA 117, 251 CCC (3d) 325 Ont. C.A. paragraph 54.

4) Temporal Proximity

I accept that the statements occurred largely within the 24 hours after N.S. was assaulted for reasons I will develop below under point 7B.

5) Inconsistencies

I am aware of the inconsistencies in N.S.'s utterances over the course of the two days that he made statements. I am however, satisfied that the evidentiary record in this case will enable a trier of fact to assess the statements in their entirety and come to conclusions regarding the nature and significance of those inconsistencies in the context of a child's evidence. I note the arguments both sides have made during submissions on this voir dire with regard to how I should interpret the inconsistencies and what is triggering N.S.'s initial utterances.

6) Absence of Motive to Lie

I accept the evidence of Olivia, the bus monitor, with regard to how N.S. exited the bus, excited and hugging the respondent. And I accept that that evidence establishes on this motion that N.S. did not have a motive to lie with regard to the respondent.

7) Hearsay Dangers and Alternative Explanations

The material aspects of the statement relate to the commission of an assault on N.S. by the respondent. The specific hearsay danger is sincerity, that N.S. is fabricating who assaulted him. As the respondent submits during argument, another explanation would be that his mother assaulted him and he is covering for her. I am aware that I am obligated under Bradshaw to consider all alternative explanations, even ones that might be considered speculative.

Having done so, I am satisfied on the basis of the entire evidentiary record before me that the only likely explanation for the C. related utterances is N.S.'s truthfulness: see Bradshaw at paragraph 44.

I come to this conclusion in part by relying on the following features of the evidence as confirmatory. It will be for me as the trier of fact at the close of the evidence to determine the relative weight to attach to the utterances in light of the entire evidentiary record, including the confirmatory evidence and the evidence related to N.S.'s later inconsistencies.

a) Physical Injuries

The physical injuries make plain that N.S. was assaulted by someone with the strength of an adult. That is to say, not another child at school.

b) Timing of Injuries

The observations of Olivia, the bus monitor, and the school staff, as well as Ms. A.C., demonstrate that N.S.'s facial injuries were not visible and therefore did not exist when he got off the bus after school on the 21st. Their appearance the morning of the 22nd demonstrates that they occurred sometime after school on the 21st. On the evidence before me, this shrinks the pool of suspects considerably, essentially to the respondent and N.S.'s mother. N.S.'s shift in demeanour between February 21 and February 22 provides further proof that he suffered his injuries during this time period.

c) Corroborative Evidence

With regard to Ms. A.C.'s evidence, I am satisfied there is sufficient potentially corroborative evidence in the record with respect to her Vetrovec like qualities for a trier of fact to accept some or all of her evidence.

In particular, it would be open to the trier of fact to accept her observations of the respondent at her door as an implied admission in the circumstances of this case. If her observations are accepted, the only likely explanation for the respondent's comments and actions on the evidentiary record as it presently exists would be an admission of misconduct towards N.S.

Such a conclusion would assist a trier of fact in assessing the truthfulness of N.S.'s utterances with regard to the purpose for which it is being adduced to identify his assailant: see Bradshaw at paragraph 35.

Conclusion

In conclusion, I am satisfied that N.S.'s out-of-court statements are substantively reliable, and therefore admissible under the principled approach to hearsay. The evidentiary record provides the trier of fact with sufficient tools to assess the truthfulness of these utterances, even in the absence of cross-examination.

Finally, I am aware that I retain a residual discretion to exclude hearsay evidence if its prejudicial effect outweighs its probative value: Bradshaw at paragraph 24. I am not satisfied such an approach is presently required.

Disposition

All of N.S.'s utterances are admitted at trial. This includes the inconsistent utterances. I note the Court of Appeal statements in Regina v. C.R. (2005), 201 CCC (3d) 71, at paragraph 17:

The objective of obtaining an accurate and frank rendition of the child's version of the relevant events is best achieved by adding to the evidence before the jury the additional facts contained in the out-of-court statements, even if those facts are inconsistent with parts of the child's viva voce evidence. It is then up to the jury to evaluate the child's composite story and determine where the truth lies.

This approach recognizes the reality that when a young child recalls an incident, his or her memory may produce descriptions that vary in a number of specifics, even to the point of contradiction.

That is my ruling in this matter.