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 the 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.:

[1] This is a ruling on a voir dire relating to admissibility of hearsay evidence consisting of statements made by the child J. when interviewed at the O.P.P. station in Elliot Lake by Cst Crockery on November 28, 2014 in the presence of society worker Sarah Siegwart. 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 relating to what transpired in J.'s home mainly in relation to discipline of the children.

[2] By the time of this voir dire, it became evidence that Ms. Siegwart was herself refreshing her memory of what J. had said at this interview by referring to "case notes". These she explained had been input into the society's computerized recording system by her within 24 hours of the time the statements were made. She had made hand written notes at the time, and according to her, the case notes were essentially a verbatim version of what she had in her hand written notes. In the circumstances, the case note of J.'s interview was filed as Exhibit 1 in the voir dire.

[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] 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.

[5] There is some history that pre-dates this voir dire. Ms. Goulding, a co-worker of Ms. Siegwart, was not present at J.'s police interview. She was minding J.'s siblings while J. was being interviewed. However she had been present with Ms. Siegwart when they both interviewed J. and his two siblings individually at their school earlier that day. A voir dire was held with respect to Ms Goulding's "child hearsay" evidence from the school interview, and my ruling was that it was admissible as it met the test of necessity and threshold reliability.

[6] The society's argument advocating admissibility was brief. Basically, it was that I had ruled J.'s statements through Ms. Goulding to be admissible and these are now similar 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. Moreover, there were different statements made by J. at the two interviews.

[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] 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. In the case of the police interview with J., he could not even remember what he spoke about when he was interviewed at his school not more than four hours previously. How he could remember today, some five years later, is beyond possibility.

[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] The actual statements were written by hand by Ms. Siegwart and she testified that she input them into the society's computerized record keeping system where they are called "case notes". As the "case note" of J.'s statements was what the society wanted admitted as trial evidence, I see no obstacles, from a threshold reliability point of view, to admitting them. In this case, he was not asked, and did not say that he knew the difference between the truth and a lie. He spoke in generalities and did not give details like times and dates of any events. Even though the interview was video and audio recorded, these recordings were not produced by the society. Despite these frailties, the evidence of the handwritten notes and their essentially verbatim transfer to their case note format compensated for these weaknesses. They pass the threshold reliability test and are admitted as trial evidence.

[14] 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"

[15] 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 at his school, and to 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.

[16] 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.

[17] For the foregoing reasons, I rule that the statements reported by Ms. Siegwart to have been made by J. at his O.P.P. interview on November 28, 2014 to Officer Crockery, although hearsay, are admissible as trial evidence through Ms. Siegwart under the principled exception to the rule against hearsay. Accordingly, voir dire exhibit No. 1 in this voir dire (relating to J.'s statements at the O.P.P. station) shall become the next trial exhibit.

Released: October 1, 2019

Signed: Justice John Kukurin

Footnote

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