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, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

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) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

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

Date: 2019-09-20

Court File No.: Elliot Lake File No. 16/11-03

Between:

CHILDREN'S AID SOCIETY OF ALGOMA Applicant

— AND —

L.G. M.J.H. Respondents

Before: Justice John Kukurin

Heard on: September 19, 2019

Reasons for Judgment released on: September 20, 2019

Counsel

Anthony Marrato — counsel for the applicant society

George Florentis — counsel for the respondent mother, L.G.

No appearance by or on behalf of respondent father, M.J.H.

Andre L Berthelot — counsel for the Office of the Children's Lawyer, legal representative for the children

Reasons for Judgment

Kukurin J.:

[1] This is a ruling on a voir dire relating to admissibility of hearsay evidence consisting of statements made by the child J. when he was interviewed at his school on November 28, 2014 by two society child protection workers, Sarah Siegwart and Heather Goulding. These statements are sought by the society to be introduced in the trial through Sarah Siegwart for the purpose that the court believe that what J. said in these statements was true. This "child hearsay" consists of factual information.

[2] Hearsay evidence is presumptively not admissible at trial unless it falls within one of several classical exceptions that have been established in our jurisprudence over several centuries. Alternatively it may be admissible if it is shown to meet the twin requirements of necessity and threshold reliability. This alternative route to admissibility is referred to as the "principled approach" to admission of hearsay evidence.

[3] All counsel agree that the voir dire into these statements will proceed on a blended basis. See Family and Children's Services of St. Thomas and Elgin County v A.C., [2013] O.J. No. 3837. In other words, whatever evidence is given in the voir dire will be evidence in the trial as well. This assumes that it will be ruled admissible.

[4] There is some history that pre-dates this voir dire. Before Ms. Siegwart testified, Ms. Goulding testified. Ms. Goulding was present at J.'s interview and she purported to present to the court what J. stated at that interview. Accordingly, a voir dire was held with respect to her "child hearsay" evidence and my ruling was that it was admissible as it met the test of necessity and threshold reliability. Alas, my decision was given orally and I must, because of time constraints, rely on my memory (and rough notes) of what I ruled, and why, when dealing with the present voir dire.

[5] What Ms. Siegwart says that J. said is of lesser importance than whether the criteria of necessity and threshold reliability are met. It is sufficient to say that the pith and substance of J.'s statements are relevant to an issue that is before this court at this trial, and that the court will at some point have to grapple with.

[6] The society's argument advocating admissibility was brief and to the point. Basically, it was that I had ruled J.'s statements through Ms. Goulding to be admissible and these are now the same statements sought to be introduced through Ms. Siegwart. The court, it argued, should be consistent and make the same ruling and for the same reasons. Nothing has changed.

[7] Counsel for the children reminded the court that this was a new voir dire, that the evidence of Ms. Siegwart was different than the evidence of Ms. Goulding and that Ms. Siegwart could not say what questions were asked of J., could not recall if she asked him any questions, or if Ms. Goulding did, and could not explain how J.'s statements about certain factual events could have been made if he was not prompted by some questions.

[8] Counsel for the mother submitted that Ms. Siegwart's evidence was not a complete record of what was asked of J., and what J. stated, and therefore was unreliable. He also argued that the society had not met the necessity criterion.

[9] I will not repeat the comments in my ruling on the voir dire of Ms. Goulding's "child hearsay" with respect to necessity. If a party is interested, it may order a transcript of my oral reasons. Suffice it to say that the "necessary" criterion has been interpreted to mean "reasonably necessary" and I found it so in the case of Ms. Goulding. I also find it so in this case, for the same reasons, as the same child is involved and the same evidence relating to necessity applies. I agree that courts should be consistent where there is little or no change in circumstances.

[10] With respect to reliability, the court, at this point is looking only to threshold reliability. Justice Parry described this in Children's Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852, [2017] O.J. No. 6581 at paragraph [42]:

"Threshold reliability is established when the hearsay 'is sufficiently reliable to overcome the dangers arising from the difficulty of testing it [without the benefit of contemporaneous cross-examination of the declarant at trial]'. Once this threshold is passed, the trier of fact may invoke the discretion to consider the evidence in the fact-finding process."

[11] Accepting hearsay evidence has certain dangers associated with it. It cannot be tested by cross examination because the person who made the statement is not in court. However, if the dangers can be attenuated, hearsay can be admitted. Justice Parry described these dangers at paragraph [37]:

"Those frailties or dangers have been summarized as follows:

(1) the declarant may have misperceived the facts to which the declaration pertains [the hearsay danger of faulty perception];

(2) the declarant, despite correctly perceiving the facts to which the declaration pertains, may have wrongly remembered those facts [the hearsay danger of faulty memory];

(3) the declarant may have narrated the facts in an unintentionally misleading fashion [the hearsay danger of faulty narration];

(4) the declarant may have intentionally attempted to present the facts in a misleading manner [the hearsay danger of insincerity]."

[12] In this voir dire, there was no evidence that any of these dangers was present, or if any were, they were minimal. Where such dangers are minimized, it is better, from the perspective of the truth finding function of the court, that such statements be admitted rather than be excluded.

[13] However, threshold reliability just gets the hearsay statements over the hump, or the threshold, of admission as trial evidence. That is not the end of the story. Just because evidence that is presumptively not admissible is given a pass and is admitted does not mean that the court accepts such evidence as gospel. Justice Parry goes on to say at paragraph [37]:

"The assessment of the ultimate reliability of the truth and accuracy of the hearsay utterance is, of course, not determined until the trier of fact considers all of the evidence and applies the appropriate standard and burden of proof"

[14] Another reason for admitting Ms. Siegwart's child hearsay evidence of the child J. is to permit comparison with what she and Ms. Goulding say that the child said when interviewed, and see if there are any disparities, any differences, or if both report the same statements. If I ruled Ms. Siegwart's evidence inadmissible, this would not become trial evidence and such comparison may not be able to be made.

[15] In addition, the society also interviewed two other children and both Ms. Goulding and Ms. Siegwart took part in those interviews as interviewers. The same comparisons of their child hearsay accounts of what was said by each child is of value to the court. Even more so is a comparison of what each child said about a factual event compared to what another child has said about the same event.

[16] Finally, the court has already heard from a former police officer witness who interviewed the same children at the police detachment after they were interviewed by the society workers. The society worker, Ms. Siegwart was present at these police interviews and her account of what was said then by the children is yet to come in this trial. It will be interesting to see whether what she reports that the children said matches with what the former police officer reports that they said.

[17] For the foregoing reasons, I rule that the statements reported by Ms. Siegwart to have been made by J. at his school on November 28, 2014 to her and Ms. Goulding, although hearsay, are admissible as trial evidence through Ms. Siegwart under the principled exception to the rule against hearsay.

Released: September 20, 2019

Signed: Justice John Kukurin