WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act and is subject to subsections 87(8) of the Act. This subsection and subsection 142(3) of the Child, Youth and Family Services Act, which deals with the consequences of failure to comply with subsection 87(8), read as follows:

87. - (7) Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,

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

87.— (8) 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.

87. - (9) 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.

134. - (11) No person shall publish or make public information that has the effect of identifying a witness at or a participant in a hearing, or a party to a hearing other than a society.

142.— (3) A person who contravenes subsection 87 (8) or 134 (11) (publication of identifying information) or an order prohibiting publication made under clause 87 (7) (c) or subsection 87 (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

ONTARIO COURT OF JUSTICE

IN THE MATTER OF the Child and Family Services Act, R.S.O. 1990, c. C.11

BETWEEN:

Children's Aid Society of Algoma (Elliot Lake) Anthony Maratto, for the Applicant Society (Applicant)

— AND —

J.B. Self-represented (Mother)

C.B. Self-represented

L.B., J.X. Self-represented (Maternal Grandparents)

(Respondents)

Andre Berthelot, Office of Children's Lawyer Counsel for the child

HEARD: November 16, 2018

RULING ON ADMISSIBILITY

Justice: John Kukurin

Decision

Introduction

[1] This is a ruling given during the course of a trial of a child protection application. The ruling is on the admissibility of statements made by the child to a society child protection worker (CPW). They are sought to be admitted on the "state of mind" exception to the rule against hearsay. The statements were made at several different times in the past. The child's statements are recounted in a trial affidavit of the child protection worker. The worker is the witness for the society. The society as well as counsel for the child seek to have these statements admitted as evidence at trial. This ruling follows a voir dire.

[2] All other parties in this case are self-represented. They made no strenuous objection to the admission of the worker's trial affidavit evidence as an exhibit at trial. However, in what I readily admit was an exercise of my gatekeeper role as a judge, I questioned the reason why such ostensibly hearsay evidence was being tendered at trial. After some discussion, I decided to conduct a voir dire hearing the following morning as the admissibility issue was interrupting the progress of the trial, and perhaps was being unfair to other witnesses summoned to appear to give their own testimony at fixed times.

[3] The reason for which the child's statements were being tendered was ostensibly to show the child's state of mind. However, some statements themselves seemed to go well beyond the boundaries of the state of the child's mind, and to recount other factual events as well as the child's feelings and the child's wishes. In view of the mixed bag of which these statements consisted, I felt that a more prudent course was to deal with them in the context of a voir dire where the exact statements could be identified, the reason why each statement was being tendered could there be stated and explored, and I could hear submissions from all parties on the issue of admissibility, and for what purpose.

Background

[4] Some background to the proceeding is clearly desirable to provide the context for the voir dire. The case was started in August 2015 and its first day of trial is Nov 15, 2018 – over three years later, and over two years late. Secondly, there is as yet, no finding that the child is in need of protection. This is an issue for this trial. Thirdly, although there was never any order made for evidence in chief at trial to be by affidavit, the society chose to have some of its witnesses give their evidence in chief in this way. This was known at both trial management conferences held in May 2018 and in Sept 2018 and I gave directions with respect to such affidavits.

[5] In the May memo I wrote:

Trial Directions – The society currently has estimated 4 days for its case but admits that it was anticipating that its evidence in chief would be adduced by affidavits of its witnesses. Perhaps this was the belief of other parties as well. However, no such direction has been made at any prior TMC held in this case. The society still wishes to proceed with affidavit evidence in chief. Everyone must remember that this is a trial, and not a motion, and is subject to trial evidence expectations. I have no objections so long as such affidavits

(a) do not contain hearsay of the deponents, except as can be justified on an exception to the rule against hearsay;

(b) do not contain opinions of the deponents unless the deponents are first qualified as experts;

(c) contain information that is relevant to an issue in the case.

[6] In my September 2018 Memo, I wrote:

... As noted from my previous TMC memo, there is no order made in this case that requires affidavit evidence in chief from anyone, but there are restrictions on the contents of any such evidence that still apply. Anyone using affidavit evidence will have to justify admission of any hearsay in such affidavit at the hearing....

[7] The child's statements recounted in the trial affidavit by the child protection worker to whom they were made are clearly not first hand from the worker. The issue of admissibility of these could not have been a surprise to anyone who had read my memos. The society has a number of other witnesses, some of whom also intend to recount, either in their trial affidavits in chief, or in their viva voce testimony, statements made to them by the child. So it has a clear interest in obtaining a judicial evidentiary ruling on the statements in the evidence tendered of its first witness, Ms. Cleveland, as it may well affect similar child statements in the evidence of its other witnesses.

[8] OCL counsel also clearly had an interest in a ruling on statements of the child coming to the court through his anticipated witness, Ms. Lund who is a clinical investigator with the Office of the Children's Lawyer. Ms Lund has spoken with the child and intends to recount to the court what the child told her. It is uncertain what Ms. Lund will say as a witness as she has yet to testify, but it will certainly be what was recounted to her by the child.

[9] The child is age 12 years at time of trial. She has filed an Answer through her OCL counsel but has not filed any evidence by affidavit. So she cannot be cross examined on it. It is not intended by anyone that the child will testify at trial. Although she is entitled to be present at trial, she has opted to go to her classes at her school instead.

The Law on State of Mind Exception to Rule Against Hearsay

[10] The first question to be determined is for what reason are these out of court statements by the child being tendered. The answer I received from both society counsel and OCL counsel was that they were being introduced to establish the child's state of mind.

[11] Evidence is hearsay if it is being introduced for the truth of its contents. While there is no actual formal Rule prohibiting hearsay statements, it is long established in jurisprudence in Canada that hearsay statements are not admissible at trial. This 'Rule against hearsay" exists for a number of good reasons, not the least of which is that the person who made the statement is not in court for the trial, has no evidence that he or she is personally tendering, and therefore, is not subject to be cross-examination by other parties on what he or she told someone else.

[12] However, there have arisen a number of exceptions to the rule against hearsay. These have been called by various names, but for convenience only, I refer to them as the "classical" exceptions to the rule against hearsay. The state of mind of the declarant is a recognized exception to the rule against hearsay. The "state of mind" exception warrants a closer scrutiny to determine exactly how it operates, and what are its consequences.

[13] Where the out of court declarant is a child, as is the case here, the underlying purpose of the state of mind exception is to get the child's statement before the court to capture the child's feelings. In particular it is to get the child's feelings that existed but only at the time that the child made the statements. This, it has been pointed out by several commentators, is the only way to get into evidence the child's state of mind that existed at the time the child's made the statements, because that time is now in the past, and only a recollection or recording of what was said at that time is left now (at time of trial).

[14] The case law is not extensive, but covers a number of situations where the state of mind exception has been applied, or at least mentioned. What the case law seems to be consistent on, is that out of court statements that indicate a person's state of mind are admissible, not for their truth, but for the fact that they were said. Therefore, it is necessary to be very clear what the intended use of the evidence is. It may be said, in some cases, that the intended use may even render the out of court statement not to be hearsay at all.

[15] There is one additional pre-requisite for admission of such statements and it is an important one. That is, that the evidence is relevant to an issue in the case. In this particular case, the court is primarily and most concerned with the finding that the child is a child in need of protection. Accordingly, information through admission of the child's statements or declarations based on a "state of mind" exception are not generally going to help the court on making such a finding. In this case, the grounds are under clauses (a), (b), (f) and (h) of s.74(2) CYFSA. The child's state of mind could, as counsel for the society contends, have some relevance to a finding under (f) and/or (h) grounds, both of which deal with emotional harm or risk of emotional harm. For that reason, they may have some relevance.

[16] These ostensibly hearsay statements, sought to be admitted on the state of mind exception to the rule against hearsay, have also been the subject of comments by legal scholars who have attempted to list what rules may apply to such statements, and to describe how they apply. Perhaps the word "rules" is inappropriate but I will use it nevertheless for convenience. The 'basic requirements' or the 'pre-requisites' may be more suitable as describing the attributes of such statements. The state of mind exception is almost invariably found as a topic in textbooks on evidence.

Prerequisites for State of Mind Exception

The rules or the basic requirements that apply to evidence that a party seeks to have admitted under the state of mind exception are the following:

(i) the statement asserts a condition or state

(ii) the statement must describe a contemporaneous physical, mental or emotional state of the declarant

(iii) the statement may not describe the cause of the state, whether it be past or present events

(iv) the mental state can include a person's present intention to do a future act

(v) the statement must not be made under "circumstances of suspicion"

[18] Each of the child's statements to the child protection worker sought to be admitted on the state of mind exception has to be examined to determine if it meets all of these pre-requisites for admission into evidence. This is the common sense approach that is the only reasonable course to follow. It has been employed by other jurists.

[19] My concern about the child's statements is primarily with respect to whether they comply with rules (i) and (iii) above. I should state that the trial affidavit of CPW S. Cleveland has numerous passages in which she clearly recounts information about which she has no first hand knowledge but which was acquired from other sources. This decision is not dealing with all of these passages. It is restricted to the ones that the society wants admitted on the "state of mind" exception only. As for the rest, time will tell how they will be dealt with.

[20] Of the passages that these Reasons do deal with, they may not explicitly deal with a condition or state but still meet the pre-requisite in rule (i) above. More concerning is that statements are not completely dealing with a condition or state of mind. Verbal speech is not in simple sentences. It usually is in compound sentences and conveys information in its component sentences that may or may not be connected. At any rate, not all sentences in a person's speech will be reflective of their state of mind at the time they spoke them. Accordingly, the court must weed out what does reflect the declarant's state of mind and what goes beyond that to something that is impermissible to be admitted.

Evidentiary Provisions Under CYFSA

[21] The other problem with this case from an evidentiary point of view is that the CYFSA has amended a prior provision in the CFSA. The old Act provided:

CFSA S.50(2) In a hearing under subsection 47 (1), evidence relating only to the disposition of the matter shall not be admitted before the court has determined that the child is in need of protection. R.S.O. 1990, c. C.11, s. 50 (2).

[22] The new Act provides a much different evidentiary provision:

CYFSA S.93 (2) In a hearing under subsection 90 (1), evidence relating only to the disposition of the matter shall not be considered in determining if the child is in need of protection.

[23] This means that all of the admissible evidence in the entire case, which deals not only with a finding, but also with disposition, and arguably access as well, must be heard, even though the court cannot consider evidence relating only to disposition (and by extension, also to access). This is a far reaching amendment, the wisdom of which I must question, particularly with the existing delays already persisting for some years in the area of child protection law. Accordingly, for purposes of this voir dire, the ruling on admission of out of court statements of the child based on the state of mind exception to the rule against hearsay must be made even though it may turn out not to have any impact on the ultimate decision in this trial.

Analysis of Specific Statements

[22] The approach taken by jurists to date in the state of mind voir dire has been to identify the declarant's statements sought to be admitted, and to rule on each one. For this voir dire, there are only a few such statements. I summarize them below and reference them to the numbering in the affidavit in which they are found.

[23] The child is reported to have said the following to CPW Cleveland:

Statement (a) – August 24, 2011

[24] At para 33(a) – on August 24, 2011:

• the child likes staying at the maternal grandparents' home
• the child always has something to eat at the maternal grandparents' home

Ruling: I rule that the child's statement indicating she likes staying at the grandmother's home indicates her state of mind at the time she made this statement namely, August 24, 2011 and therefore it is admissible as it shows the child's state of mind then.

I rule that the child's statement that she always has something to eat at the grandmother's home is not admissible as it is a factual statement, does not go to the child's state of mind and it may or may not be an explanation of the "why" relating to the prior statement.

Statement (b) – August 24, 2011

[25] At para 33 (h) – On August 24, 2011 – that the child felt safe

Ruling: I rule that this is admissible under the state of mind exception as it goes directly to the child's state of mind on the day it was said.

Statement (c) – October 7, 2014

[26] At para 41 – Oct 7, 2014 – that the child was afraid to go home

Ruling: I rule that this is inadmissible. I do so not for the reason that it does not go to the state of mind of the child. This is not a statement made by the child to Ms. Cleveland, the deponent of the affidavit in which it was contained. There is no evidence as to whom this statement was made, or how it jumped from that source to the deponent of the affidavit. It is second or third hand hearsay at best. The notes of CPW Cleveland cannot describe the circumstances in which this statement was allegedly made as she was not present at the time. Nor can she attest to the accuracy of the words allegedly spoken by the child.

Statement (d) – October 7, 2014

[26] At para 41 – Oct 7, 2014 – that the child was very close to the maternal grandmother and that the maternal grandmother would be picking the child up from school later that day because the mother and C.B. had gone to Sudbury with their friend D. and D.'s son JJ.

Ruling: I rule that the portion of the statement "that the child was very close to the maternal grandmother" is admissible. It goes to the child's state of mind. The balance of the statement is not admissible as it does not go to the child's state of mind. It recounts what the child anticipated would transpire and the reasons why it would. While this may be innocuous in the context of the trial, I do not know the intended purpose of such additional material and am not admitting it as it does not meet the state of mind exception.

Statement (e) – September 4, 2018

[27] At para 47(a) – Sept 4, 2018 – the child did not want to see or speak with the mother

Ruling: I rule this is admissible as it clearly reflects the child's state of mind and future intentions at the time these words were spoken.

Statement (f) – September 4, 2018

[28] At para 47(b) - Sept 4, 2018 – that no one had influenced the child in making this choice.

Ruling: I rule that this is also admissible as it does seem to reflect the independence of child's state of mind in verbalizing her intended choice above.

Statement (g) – September 4, 2018

[29] At para 47(f) – Sept 4, 2018 – that if the child were to see the mother on the street, the child would ignore the mother.

Ruling: This is an admissible statement under the state of mind exception as it goes to the child's present intention (present at the time it was said) to do a future act, clearly included within the state of mind of the child.

Statement (h) – September 4, 2018

[30] At para 47(g) – Sept 4, 2018 – that the child saw the mother at the […] fair and it made the child uncomfortable.

Ruling: This I reluctantly rule inadmissible. It is not a statement that is contemporaneous with the state of mind existing when the statement was uttered. It describes a past state of mind of the child pre-dating the making the statement. It does not meet the contemporaneous requirement in rule (ii) above.

Statement (i) – September 18, 2018

[31] At para 47(h) – Sept 18, 2018 – that the child did not feel comfortable around the mother's boyfriend, C.B.

Ruling: I rule this statement to be admissible as it goes to the child's state of mind.

Statement (j) – October 7, 2014

[34] At para 41(f) – October 7, 2014 – that the child was not afraid of C.B. and said they got along pretty well

Ruling: I rule that the first part of this statement is admissible as it reflects the child's state of mind. However, the statement that they got along pretty well is not so much a state of mind statement but a factual statement describing their relationship clearly prior to the date the statement was made and likely persisting up to the time it was made. This portion is not admissible under the state of mind exception.

Conclusion

[32] Although the society is the party who tendered the evidence of CPW Cleveland, and it is therefore its responsibility to justify admission of what Ms. Cleveland attests to in her affidavit if it is presented ostensibly in the form of hearsay, the OCL counsel for the child demonstrated a similar desire to have the child's statements to CPW Cleveland admitted on the state of mind exception. From my recollection, however, there were no additional passages that OCL counsel referred to than was already mentioned by society counsel and are dealt with above.

[33] There was one further passage contained in the affidavit of CPW Cleveland that was asked to be admitted on the state of mind exception. However, this was sought to be admitted by the mother. I actually see no reason why I should not deal with it in the context of this voir dire. In short, what's good for the goose is good for the gander. The following statement is contained in Ms. Cleveland's affidavit and is fair game for a judicial ruling on admissibility, even if the society is not relying on it.

[35] This represents my ruling on admissibility with respect to the foregoing. It is very narrow in that the reason for which admissibility is sought is to establish the state of mind of the child at different times. As I mentioned previously, the trial affidavits that the society has prepared are peppered with what are ostensibly hearsay statements. I indicated that hearsay may be acceptable if its admission was justified by the party wishing to introduce it. I foresee that this trial will likely result in a series of voir dires if all of these passages that are not first hand out of the mouths of the witnesses or deponents are sought to be admitted for the truth of their contents. I am not attempting to pre-judge any future ruling. However, not all statements are going to be introduced for the state of mind of the child. Some may be for the truth of what the child or another out of court declarant may have said. With respect to the child, if any other of her alleged statements are sought to be admitted, the party seeking to have them admitted will have to satisfy the two requirements of necessity and reliability. To date, I have not heard any reason in the evidence or in submissions why the child cannot testify. It appears that she chooses not to.

Released: November 19, 2018

Justice John Kukurin

Footnotes

[1] I was also sensitive to the fact that all Respondents were self-represented and did not appear to have any inkling that evidence in the trial affidavit might not be proper trial evidence.

[2] Other terms often seen are traditional exceptions, pigeonhole exceptions, and categorical exceptions. They include res gestae, dying declarations, declarations against interest, business or official records, admissions of a party, and prior testimony. The res gestae exception also includes spontaneous utterances and statements about contemporaneous physical, mental or emotional state. This, I presume, is the exception that the society and OCL counsel call the "state of mind" exception and wish the child's statement to be admitted under this classical exception.

[3] Among these are Professor Rollie Thompson who has written several papers touching on children's hearsay statements including "Are There Any Rules of Evidence in Family Law?" (February 2002, National Judicial Institute Family Law Seminar) and Child Hearsay in Criminal and Family Cases: A Comparison (May 2014, Presentation to the Ontario Court of Justice Annual Meeting) as well as A Refresher on Child Hearsay, cited by Sherr J. in Catholic Children's Aid Society of Toronto v. M.R.M., 2012 ONCJ 497, [2012] O.J. No 3587, 23 R.F.L. (7th) 457.

[4] Among these are Blishen J. in Children's Aid Society of Ottawa v. S.E., [2005] O.J. No. 2087 (Ont SCJ), Sherr J. in Catholic Children's Aid Society of Toronto v. M.R.M., 2012 ONCJ 497, [2012] O.J. No. 3587 (Ont CJ) and Tobin J. in Family & Children's Services of St. Thomas and Elgin v. A.C., [2013] O.J. No. 3837 (Ont CJ).