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: 2019-09-23
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 23, 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.H.
Andre L Berthelot — counsel for the Office of the Children's Lawyer, legal representative for the children
Reasons for Judgment
Kukurin J.:
Overview
[1] This is a ruling on two voir dires relating to admissibility of hearsay evidence consisting of statements made by the child M.
(a) when she was interviewed at her school on November 28, 2014 by two society child protection workers, Sarah Siegwart and Heather Goulding, and
(b) when she was interviewed on the same day at the Ontario Provincial Police station in Elliot Lake by Constable Crockery in the presence of Sarah Siegwart, who states she took hand written notes of this interview.
[2] These statements are sought by the society to be introduced in this status review trial through Sarah Siegwart so that the court should believe that what M. said in these statements was true; in short, for the truth of the contents. This "child hearsay" consists almost totally of factual information.
[3] 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.
[4] Where hearsay statements, especially child hearsay, are sought to be introduced for the truth of their contents, and the child is not called to testify viva voce, the judicial determination of admissibility of such hearsay statements is customarily determined to be by way of a voir dire. [See Jones J. in Children's Aid Society of Metropolitan Toronto v. R.M., [1992] O.J. No. 1097 at page 5]
[5] All counsel agree that the voir dires 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 Tobin Ont CJ]. 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 in the voir dires to be admissible.
[6] It is sufficient to say that the pith and substance of M.'s statements are relevant to an issue that is before this court at this trial. In other words, these are statements that are relevant in this status review proceeding.
Necessity
[7] Some background facts are necessary to understand the context in which these rulings are being made.
Firstly, there are three children, M., now age 15, J., now age 12, and P., now age 8. All three were interviewed first at their school, and then at the Elliot Lake O.P.P station on November 28, 2014. They were then ages 10, 8 and 4 respectively. The society seeks to introduce their "child hearsay" statements and each is subject to a voir dire ruling, given or yet to be given.
Secondly, the statements made by these three children at their school were not audio or video recorded. Handwritten notes were made by Ms. Siegwart contemporaneously with their interviews. However, these hand written notes no longer exist. They were shredded. What Ms. Siegwart has said is that she input the information from these handwritten notes into a computerized recording system of the applicant society, and it is the typed version obtained from this recording system that is the basis of what Ms. Siegwart relies upon to support her viva voce testimony in this court of what statements were made by the children at their school. The actual typed recording is called a "case note" and a copy of this case note with respect to M.'s statements made at her school has been filed in the voir dire hearings as Exhibit 1 in that voir dire.
Thirdly, the statements of the children made at the O.P.P. station were both audio and video recorded. This was apparently done on equipment of the O.P.P. In addition, it appears that a second O.P.P. officer, different from Cst. Crockery, was monitoring the interviews from another room and noting the "high lights". Ms. Siegwart was present during the interview of M. by Cst. Crockery and she states that she made handwritten notes of what was said. Neither the audio-video recordings, nor the notes of the monitoring officer, nor the hand written notes of Ms. Siegwart are presented at this trial or at this voir dire. They apparently no longer exist. In fact, what is presented as the "child hearsay" of M. is the viva voce testimony of Ms. Siegwart as to what she states that M. said at the time of this interview. How does Ms. Siegwart know what this was some five years later? It is because she has a case note from the society's recording system of what she input into that system taken from the handwritten notes that she made at that time.
Fourthly, none of the children made any recordings of what was said by themselves or by whoever else was present when they were interviewed. Each child was interviewed privately and separately from each other.
Fifthly, the society apparently used this "computerized record keeping system" as a part of its standard protocol or procedure for maintaining records, and its workers input information into this system as a normal course of their record keeping roles. The expectation of the society, according to Ms. Siegwart, was that the inputting of information into the recording system would occur either within 24 hours of the interview that yielded the information of the events that had taken place, or within 24 hours of the making of the handwritten notes of these events. The recording system has time and date information that is available for any "case note". The case note with respect to M.'s "child hearsay" was made an exhibit to the voir dires and covers both the interview at her school as well as the interview at the O.P.P station.
Sixthly, Ms. Siegwart was the lead child protection worker for the family at the time of these interviews and remained so for another month and a half thereafter. She did not request a copy of the O.P.P. audio-video recordings of any interview that was done of any of the children. She did not know if anyone from the society ever did. Nor did she ask for the monitoring officer's notes. She cannot say why these recordings are not available. The recording at the O.P.P. station were made during the course of a joint Children's Aid Society/Ontario Provincial Police investigation into discipline within the home(s) of the children in an effort to determine if any criminal conduct had taken place that warranted criminal charges being laid.
[8] It is almost universally preferable to have first hand evidence, especially of factual occurrences. It is recognized that, for a variety of reasons, that first hand evidence is not always available. This is as true for adults as for children, but in this case, M. was a child when she made the statements in question, and she is still a child today. Hence these Reasons will be somewhat skewed to take these realities into account. Because first hand evidence from children is sometimes difficult to obtain before a judicial tribunal, Parliament has recognized this and has enacted a number of measures to help children to testify meaningfully.
[9] The genesis of the principled approach to admission of child hearsay was the case of R. v. Khan. Many courts have since held that this approach is as valid in a civil case as in a criminal case. In fact, it has been recognized as being appropriate in child protection cases. The child in that case was 3 ½ at the time of the factual event and 4 ½ at time of trial. This decision articulated an exception to the rule against hearsay that required that the court be satisfied of two things. The first was the "necessity" for the evidence be hearsay, or second hand. By "necessary", the court in Khan was clear that this meant "reasonably necessary". In Khan, the child would not say at trial what she had said to her mother when she had first made her disclosures. Accordingly, the court accepted that it was necessary to have this information through the mother second hand. There may be a variety of reasons why first hand child evidence may not be available. Every case is different. However, the requirement that it be (reasonably) necessary to have hearsay instead of first hand evidence remains a requirement.
[10] There are some judicial trends towards minimizing the need for necessity as a pre-requisite for admission of child hearsay under the principled approach. Some decisions have almost reached the point of not requiring "necessity" to be proved at all. I disagree with any dilution of the need for necessity, and prefer to rely on appellate authority that has consistently held, to the present, that necessity remains a pre-requisite. [See R. v. Bradshaw at paragraph 1]
[11] Necessity has to be established on the standard of the balance of probabilities. Moreover, it has almost always to be established on the basis of evidence. In some cases, the existence of necessity has been conceded by all parties. In others, the courts have decided that the factual circumstances are so clear and undisputed that necessity could clearly be inferred. While these may be acceptable ways to find necessity exists, it is normally through evidence at the voir dire that a finding of necessity is made. The onus of showing this falls on the party who seeks to have the child hearsay admitted. In this case, it is the society.
[12] In the case of M., she was born in 2004 and made her statements at her school and at the O.P.P. station in November 2014 when she was 10. At time of the trial in September 2019, she was 15 years old. There is no legal impediment of which I am aware that precludes or prevents a child age 15 years from testifying in court. She also has legal representation in this proceeding. So the question is why is she not testifying and why is it necessary that the court have hearsay evidence of what she is alleged to have said in November 2014?
[13] With respect to the statements made by M. to the two society workers when she was interviewed at her school, the society evidence was that Ms. Siegwart did not recall if she asked M. if she knew the difference between the truth and a lie at any time in this interview. Moreover, she did not recall if she asked M. any questions that asked M. directly whether the discipline or punishment M. was describing was used in the home, or whether she asked M. for any specific information. Basically, Ms. Siegwart's evidence at the voir dire was a recitation of what Ms. Siegwart stated that M. had informed her about discipline in M.'s then home and her previous home. The only evidence about M. was that M. appeared surprized and almost nervous when she entered the interview room and saw the two society workers.
[14] The society actually adduced no evidence on the issue of necessity to have the child hearsay admitted rather than to have this information from M. herself. Justice Jones, in Children's Aid Society of Metropolitan Toronto v. R.M. gave [at p.5] a number of suggestions on the kind of evidence that the court might find relevant and useful in deciding the issue of necessity, and questions that might elicit such evidence:
"The nature and extent of such inquiry on the issue of necessity would depend on the facts of each particular case and the court could consider, but not be limited to, a combination of the following issues, whether the counsel consent to the admission of the evidence, the age of the child, the emotional fragility of the child, the level of understanding of the child, with the understanding that the weight of the evidence to be presented in favour of invoking this hearsay exception would vary in reverse proportion to the age of the child, with a heavy onus to be satisfied if the child is over fourteen years of age and presumed to be capable of giving evidence. Otherwise, the court is being asked to act on less than the best evidence available."
[15] As far as M. is concerned, she is over age 12 years and is entitled to attend the trial. She is also, by virtue of her age and having legal representation, able to participate "as if she were a party". Parties can testify in court. Also, the society has custody of M. It is free to call her as a witness. As far as can be determined on the evidence to date, M. has no cognitive or auditory or speech disability that might prevent her from testifying viva voce.
[16] The society's argument on "necessity" comes down to the following. M. has not said that she does not want to testify. Nor has she said that she does. She is not being called by any party to testify. She has indicated, according to the society, that she is willing to speak with me (the trial judge) in private and in chambers, as I understand it, with respect to her views and wishes. She did not take notes of what was said by her or anyone else on November 28, 2014 when she was interviewed at her school. The court was invited to infer that her memory of what was said then would be faulty just by passage of time as well as by her age at that time. Moreover, if M. was called to testify, she would have to do so in front of her mother, and this would put M. in a very uncomfortable and possibly traumatic position. The premise underlying this submission is that M. might have to recount some home discipline events that portray her mother in a bad light. It might also undermine M.'s current position, which is no secret, that she wishes to return to reside with her mother.
[17] The society also sought from this court an early ruling on admissibility of M.'s child hearsay statements. It wanted this because if the evidence of such statements presented through Ms. Siegwart were ruled inadmissible, it wanted to find alternative ways to get these before the court before it closed its case. Presumably, it would be by calling M. as its witness. I agree that an early ruling is needed, and accordingly, I provide these Reasons and Ruling as soon as I possibly could.
[18] I am not satisfied that it is necessary that factual evidence mainly of what discipline methods went on in the home(s) of M., be presented in this trial through the hearsay evidence of the society worker, Sarah Siegwart. M. is age 15 years. She is not two or three. She has legal representation to assist her. If she wishes any aid to testify, such as a screen or a closed circuit television, these may be arranged. She clearly was able to say what she said when she was age 10, and presumably can say the same (or different) things when she is age 15, considerably more mature and more cognitively developed. Moreover, Ms. Siegwart had a copy of the society's "case notes" to which she referred to refresh her memory of what transpired at that school interview. There is no reason why M. cannot be afforded the same "case notes" to refresh her memory. There is not one bit of evidence that it will be traumatic for M. to testify viva voce, even before her mother, and I do not accept the society's speculation or suggestion that it would. This is not a case where necessity can be inferred from any circumstances. Finally, the evidence establishes that M. has given an account of what transpired in her home(s) after her interview at her school. This was at the O.P.P. station where she was interviewed by Cst. Crockery. So she has clearly shown that she can give her narrative to more than one person. Finally, the society has provided no evidence, nor even the suggestion of any evidence, that M. is prone to lying, embellishing, fabricating factual occurrences, or colluding with others to do any of these things.
[19] As these reasons also apply to the voir dire with respect to admissibility of the evidence of Ms. Siegwart of the child hearsay statements of M. made at the O.P.P. station interview, for the same reasons as above, I am not persuaded, on the balance of probabilities, that it is necessary to have these admitted at trial. In addition, there are also some threshold reliability issues that play into this decision.
Threshold Reliability
[20] Admissibility rulings of child hearsay statements have two criteria which are conjunctive. The party seeking admission must meet both. Having concluded that necessity has not been met, this may be sufficient to deny admissibility. I am compelled to say something about threshold reliability. Justice Parry set out what is meant by "threshold reliability" in Children's Aid Society of St. Thomas and Elgin v. A.H. [at paragraph 42], a case later affirmed by the Ontario Court of Appeal.
"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]. Once this threshold is passed, the trier of fact may invoke the discretion to consider the evidence in the fact-finding process. 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…. two ways in which hearsay dangers may be overcome. Satisfying the trier of fact that there exist adequate substitutes for contemporaneous cross-examination [procedural reliability]. Satisfying the trier of fact that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy [substantive reliability]."
[21] Several suggestions were made in the A.H. case about substitutes for the lack of contemporaneous cross examination of the declarant (M.) of the statements made. These include "a video recording of the statement, the presence of an oath, and a warning about the consequences of lying." As for circumstantial or evidentiary guarantees that the statements made by the declarant (M.) are inherently trustworthy, courts may look at "the circumstances in which the utterance was made and whether there exists evidence that corroborates the statement". Corroborative evidence, to assist in the substantive reliability inquiry, must itself be trustworthy.
[22] In the case of Ms. Siegwart's child hearsay statements of what took place at M.'s interview at the O.P.P. station, there are concerns that call into account the reliability of such statements.
[23] Firstly, this is far from the best evidence. The best would be from the lips of M. at trial. The second best would be the audio-video recording of the O.P.P. of that interview. However, it is not available (for reasons not specified) and was never sought by the society from the O.P.P. Thirdly, it is not from the hand written notes of Ms. Siegwart taken at the time, as these were shredded and no longer exist. Fourthly, it is not even the "case notes" generated form the society's computerized recording system as the evidence actually tendered was from the lips of Ms. Siegwart aided by her resorting to these "case notes" to refresh her memory. Finally, as for the accuracy of her handwritten notes to the "case notes" from the society's computer system, there is trial evidence that Ms. Siegwart left her recording open to editing by others, and that Ms. Goulding not only read and reviewed, but also edited what Ms. Siegwart had input into the system, and then closed the recording. There was no evidence of what editing Ms. Goulding actually did, or that she did anything.
[24] Secondly, there is the evidence of Cst. Crockery. This was trial evidence given by him, and not evidence at the voir dire. Cst. Crockery interviewed M. as part of a joint investigation with the society. He was interested in information that could be the basis for laying criminal charges. He was provided with an excerpt from an affidavit that Ms. Siegwart had sworn and which had been filed earlier in this proceeding. This excerpt was almost verbatim with the case note from which Ms. Siegwart refreshed her memory for her evidence at the voir dire and for trial. Cst. Crockery, however, disagreed that what was reported to have been said by M. by Ms. Siegwart in her affidavit, was what had been said at her interview with him. He was of the view that the author of the affidavit excerpt had included in that excerpt, information that was obtained elsewhere than at the interview at the O.P.P. station. In fact, he stated that if some of what M. was reported by Ms. Siegwart to have said had come out at the police station, this would have been "significant for criminal charges purposes" and that he "would have made some notes". In fact, Cst. Crockery did not make notes and stated that, after the interviews, he checked with Officer Beveridge who was monitoring the interview from another room and making notes of any "highpoints", and found that neither of them had heard anything that could reasonably form the basis for any criminal charges (except possibly one disclosure from the child P., then age 4). So no charges were ever laid.
[25] This evidence admittedly did not arise in the voir dire. However, it also cannot be ignored as it was very relevant to the issue of threshold reliability. I chose to apply this evidence to the voir dires relating to M.
[26] Ms. Siegwart's child hearsay statement of what M. had said at the O.P.P. interview had made it clear that M. had not made any statement under oath. I was unsure if M. was asked if she knew the difference between a lie and the truth, and if so, by whom. I do recall, if she was asked this question, that she made no reply.
[27] Finally, the child hearsay evidence of M., at the school and at the police station, is mostly devoid of any information about what questions were asked of her. The evidence of the society witness could not provide any detail and next to none were actually recorded in the "case notes". At most, the workers testified about what kinds of questions they typically asked children they were interviewing. These types of questions were described as "open ended". I took this to mean that they were unspecific as to the event or occurrence being discussed. However, the statements of M., in particular, were clearly answers to questions put to her about specific factual matters. This leads me to suspect that the recordings hand written by Ms. Siegwart were not a complete record of what was actually said, and by whom, and also that what she input into the computer system was also not complete.
[28] There is also the discrepancies between statements made by one child and the statements made by another child about the same factual occurrence. In fact, some disparities were outright contradictions. This leads the court to wish to scrutinize what was said and by whom more closely than only with evidence that the society wishes to have admitted. The statements attributed to M. do not often have any temporal information as to when a particular event occurred, whether it occurred only once or more times, and what adult was involved in the event. The society evidence is that no further interviews of the children were conducted after that at the police station to try to get any explanations about these disparities or to get more details from M. or the other children.
[29] In the final analysis, the hearsay statements of M. as presented to this court by Ms. Siegwart, do not, on the evidence of the society, satisfy me that they meet the threshold reliability needed to establish the second prong of the Khan test for admission as evidence in this case. The society has again merely provided a record of what it says M. said when interviewed.
[30] The law has evolved but there are still rules and requirements to satisfy. To interpret the Khan decision and its aftermath too loosely is not what was intended. The admission of all evidence simply because it is evidence of what a child said out of court does not follow as a conclusion of Khan and its sequel case R. v. Smith. These have oft been cited as authority for the principled approach and bear a close examination for what they actually say. The danger of mis-applying these authorities was discussed in Re (J.B.) at paragraphs [112] to [114]:
"The Khan-Smith approach provides both the justification for the reception of the evidence (necessity and reliability) and, by imposing an admissibility threshold, accords to the party against whom the evidence will be sought to be used, protection against being prejudiced by the reception of untrustworthy information.
To adopt the seductively simple approach of allowing all hearsay evidence to be received without any threshold test of admissibility, and relegating it merely to a consideration of the weight to be accorded to it, is in effect to abandon any pretext at deciding evidentiary issues according to appropriate principle.
If hearsay statements are received "for what they are worth," without being screened for necessity and reliability, they will form part of the body of evidence that must be considered in the final weighing of the evidence at the end of the hearing. Given the deference shown by appellate courts to findings of fact by trial judges and the practical impossibility of determining in most cases the degree of weight placed by the judge on an apparently questionable piece of hearsay evidence, the reality will be that little or no control over the use of this type of evidence will exist."
Ruling
[31] For the reasons stated above, the admission of the hearsay statements of the child M., at both her school and at the O.P.P. station, on November 28, 2014, tendered to this court by society child protection worker Sarah Siegwart, are ruled to be not admissible as trial evidence for the purpose of establishing the truth of what was included in such statements.
Released: September 23, 2019
Signed: Justice John Kukurin