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: 2019-10-01

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: October 1, 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

Judgment

Kukurin J.:

[1] Introduction

This is a ruling on a voir dire relating to admissibility of hearsay evidence consisting of statements made by the child P. when she was interviewed at her 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 P. said in these statements was true. This "child hearsay" consists of factual information, mostly relating to discipline in her home.

[2] Hearsay Evidence Framework

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] Blended Voir Dire

All counsel agree that the voir dire into these statements will proceed on a blended basis.[1] 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] Prior History

There is some history that pre-dates this voir dire. Before Ms. Siegwart testified, Ms. Goulding testified. Ms. Goulding was also present at P.'s interview and she purported to present to the court what P. stated at that interview. Unfortunately, a voir dire was not held with respect to P.'s "child hearsay" evidence. No one asked for a voir dire to be held on P.'s statements introduced in the testimony of Ms. Goulding.[2] Accordingly, they are trial evidence insofar as they are recounted in the viva voce testimony of Ms. Goulding.

[5] Issues Before the Court

In this voir dire, the issue is whether the criteria of necessity and threshold reliability are met. The statements are relevant to an issue that is before this court at this trial, an issue that the court will at some point have to grapple with. In fact, these statements go to the issue of whether a finding should be made that P., and her siblings, are children in need of protection, the key and pivotal finding in all child protection applications.

[6] Procedural Context

The arguments of counsel advocating or discouraging admissibility were not made. Counsel simply examined or cross examined Ms. Siegwart on the statements and on the circumstances in which they were made. Basically, it was left to the court to make some decision. That decision was deferred at the time as this voir dire took place in the course of trial evidence and the court wanted to continue and conclude such evidence. It was also evident that there would be other voir dires as all three children had made statements at various times, and objections to their admissibility as hearsay was almost inevitable.

[7] Necessity: Age and Memory

On the issue of necessity, it is unlikely that P. at age 8 today would be able to repeat what she had said when interviewed by Ms. Siegwart and Ms. Goulding after she was removed from her classroom at school over five years ago at age 4 years. P. did not keep notes of what she, or either of her two interviewers said.

[8] Necessity: Reasonably Necessary

The "necessary" criterion has been stated by the Supreme Court in R. v. Khan to mean "reasonably necessary". I believe that it is reasonably necessary in the case of P. insofar as the statements she made at her school on November 28, 2014.

[9] Threshold Reliability: Definition

With respect to reliability, the court, at this point is looking only to threshold reliability. "Threshold reliability" is typically met when "sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about".[3]

[10] Threshold Reliability: Legal Standard

Justice Parry described this in Children's Aid Society of St. Thomas and Elgin County 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] Dangers of Hearsay Evidence

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] Threshold Reliability vs. Ultimate Reliability

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.

[13] Threshold Reliability Not Met

With respect to the threshold reliability of P.'s statements made at her school, I am not persuaded that the society has met its onus. There are a number of reasons why it has not. Many of these do not arise out of the voir dire evidence itself, but have come about in other testimony of Ms. Siegwart as evidence in other voir dires, or in her trial testimony, or in the testimony of Ms. Goulding who was present at P.'s interview at her school. If I err in considering this evidence obtained outside of the boundaries of the voir dire, I err deliberately as to ignore such evidence does more harm to the fact finding process than to consider it. Moreover, this is evidence that is still presented as the society's case, is given under oath, and it impacts on the voir dire evidence. It is evidence that should have been presented at the voir dire.

[14] First Weakness: Oath and Understanding of Truth

Firstly, there is no indication that P. was asked if she knew the difference between the truth and a lie, much less that she did know. P. was not under oath at the time.

[15] Second Weakness: Lack of Specific Questions

Secondly, neither Ms. Siegwart nor Ms. Goulding could provide any specific question put to P. by either of them in this interview. Ms. Siegwart stated that it was not her habit to ask specific questions. They both testified that their questions would be open ended because that is how they were trained to interview children. What is meant by "open ended" is subject to different interpretations. For example, P. stated who lived in her home. To elicit this response, a variety of questions may have been asked. For some, these may all be open ended. For others, not.

(a) Tell us about your home?

(b) Who lives at your home?

(c) Are you and your mom the only ones who live at your home?

(d) Does X live at your home?

[16] Third Weakness: Spontaneity Unclear

Thirdly, whether P.'s statements were made spontaneously and unprompted is difficult to know as no information about this was included in the voir dire testimony. In reviewing what she is alleged to have said, it seems more likely from the nature of the responses, and from her age at the time, that she was responding to questions rather than rattling off a series of factual statements.

[17] Fourth Weakness: Lack of Temporal Information

Fourthly, with respect to P.'s statements at this interview, the temporal aspect seems to be totally missing. She did not include any information as to when the things she was describing took place. One might not expect a date and time, however, children often can and do tie disclosure of what took place to specific events like weekends, or holidays, or other events taking place in the household, or in the child's life. There was nothing like this in P.'s statements.

[18] Fifth Weakness: Child's Demeanour and Behavioral Issues

Fifthly, P.'s demeanour at the time she made these statements is of some relevance to threshold reliability. P. had been known to Ms. Siegwart and to Ms. Goulding before this interview. She was described as not usually being forthcoming, typically defiant, and impervious to coercion. At this interview, Ms. Goulding stated that it was difficult to maintain focus with P. P., it was learned later, suffers from Oppositional Defiant Disorder as well as ADHD.

[19] Sixth Weakness: Ambiguous Pronouns

Sixthly, P., occasionally indicated that her brother was the subject of certain discipline but often she used the pronoun "they" with no reference to who "they" meant. "They" was used in reference to adults as well as to children.

[20] Seventh Weakness: Contradictions with Siblings' Statements

Seventhly, statements made by P. were sometimes contradicted and qualified by statements made by her siblings in the same interview, and in a subsequent interview venue, and in trial evidence.

[21] Eighth Weakness: Lack of Recording and Documentation

Eighthly, P.'s statements were not audio or video recorded at her school. Handwritten notes were taken by Ms. Siegwart, as the lead interviewer, but not by Ms. Goulding. These notes, however, were not available at trial. Later evidence from Ms. Siegwart indicated that the society policy was for workers to take handwritten notes and to enter them into a typed format in a society record keeping system, with a time expectation of not more than 24 hours later. These were referred to as "case notes". The hand written notes were then shredded. In the case of notes entered by Ms. Siegwart of the school interviews, she said she left these open for review by others. Ms. Goulding, who said she took no handwritten notes of this school interview, also said that she reviewed Ms. Siegwart's case notes on the society recording system, and edited them so that they would be complete. What editing changes she may have made are unknown to either worker. In fact, the society "case notes" of this school interview were not produced at the voir dire nor at trial. The evidence tendered was the viva voce evidence of Ms. Siegwart as to what P. said five years prior.

[22] Cumulative Effect of Weaknesses

There are too many weaknesses in the case of P.'s hearsay statements made at her school. These weaknesses are not counterbalanced by any strengths. In an ideal situation, the interviewing workers would have, at the very least, audio recorded what was said at the interview, and could have stored the audio recording in perpetuity if necessary. It would have offered the quality of accuracy, a significant component of threshold reliability.

[23] Conclusion: Hearsay Statements Excluded

In these circumstances, I conclude that threshold reliability has not been met and accordingly, the hearsay statements that P. may have made at her school on November 28, 2014, tendered through Child Protection worker Sarah Siegwart, are not admitted as trial evidence under the principled exception to the rule against hearsay. As a corollary, all voir dire testimony with respect to P.'s statements made at her school is not permitted to be considered trial testimony.

Released: October 1, 2019

Signed: Justice John Kukurin

Footnotes

[1] See Family and Children's Services of St. Thomas and Elgin County v. A.C., [2013] O.J. No. 3837 (Tobin Ont CJ)

[2] See A.H. v. S.B., [2018] O.J. No. 1841 (ONT CA), where, on the ground of appeal that the trial judge failed to hold a voir dire on admissibility of certain hearsay statements, the court of Appeal stated (at paragraph 4) "We do not agree. …. The trial judge did not err by refraining from embarking on an evidentiary hearing, in the absence of any request that he do so."

[3] Children's Aid Society of London Middlesex v. A.R.M., [2017] O.J. No. 2618, 2017 ONSC 3037 (George J, Ont SCJ – Fam Ct) at paragraph 48