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: 2019-10-02

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

Parties

Between:

Children's Aid Society of Algoma Applicant

— AND —

L.G.

M.J.H. Respondents

Judicial Officer and Counsel

Before: Justice John Kukurin

Heard on: September 25, 2019

Reasons for Judgment released on: October 2, 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 a voir dire relating to admissibility of child hearsay evidence consisting of statements made by the child J. at his first foster home placement, to his foster mother, Lara Hukazalei. These statements are sought by the society to be introduced in the trial through Ms. Hukazalei for the purpose that the court believe that what J. said in these statements was true. This "child hearsay" consists of factual information.

Legal Framework for Hearsay Admissibility

[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. It is on a principled approach that the society seeks admission.

Procedural Matters

[3] 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.

Facts

Apprehension and Placement

[4] J. was apprehended on November 28, 2014 together with his two sisters. The society did not have arrangements in place for their longer term foster placement, so he was placed with the Hukazalei family which I understand is a sort of emergency, and usually short term, foster placement. Lara Hukazalei is the foster mother, and she is also an employee of the applicant society, where she has held the position of child protection worker.

The Statements in Question

[5] As she was putting J. to bed, she turned off the light in his bedroom. J. immediately said "no, no, no. Don't turn the light off". This led to a discussion between them during which J. stated that:

• he was fearful of the dark because he was locked in his bedroom from his mother and her partner, and
• he could not turn on the light in his bedroom because they had taken the bulb out.

Foster Mother's Observations

[6] Ms. Hukazalei also indicated her observations of J., while he was at her home, were that he was nervous, appeared fearful, and was extremely anxious from time to time. These observations abated over time. However, when he made the foregoing statements, he demonstrated "conviction" in making them, and led Ms. Hukazalei to believe that he was telling the truth.

Hearsay Analysis

[7] While Ms. Hukazalei's observations are completely acceptable as trial evidence, her recounting of J.'s out of court statements are not. They are hearsay, and hearsay is presumptively inadmissible at trial. The society wishes to introduce these statements for the truth of what they say. The respondent mother and OCL counsel for the children object. A voir dire was entered into to determine their admissibility. On consent, it was a blended voir dire.

Scope of Voir Dire

[8] Unfortunately, the questioning of Ms. Hukazalei did not stay on topic, namely, the two statements set out above. In the voir dire evidence, other statements attributed, not only to J., but also to his sisters, were elicited, many of which were also of a hearsay nature, and made much later. The voir dire remained focused on the above two statements, and this is all that this ruling is about.

Timing and Recording of Statements

[9] Ms. Hukazalei made no notes at the time of J.'s statements. She was not asked to do so. Her recollection was from memory. However, she did say that the child was so fearful that it was "imprinted on my brain". She nevertheless did not recall reporting these statements to the child protection worker, or to the child service worker around the time the statements were made. There was no evidence as to when these statements were made. However, from the context, and other evidence it is reasonable to infer that they were made the day the children were apprehended, which was the first day that they were in the Hukazalei home. In short, they were made on November 28, 2014.

Cross-Examination Findings

[10] During Ms. Hukazalei's cross examination in the voir dire, she qualified what J. said with respect to the two statements above. These other statements of J. were not made at the same time as the aforementioned two statements. They were made on other occasions. Ms. Hukazalei did not ask J. for details or explanations when he made these initial statements. She was more concerned with allaying his fears of the dark and dispelling his concerns about being locked in a dark room.

[11] Ms. Hukazalei admitted in the voir dire that:

• J. did not say who locked him in his room
• J. did say that his mother's partner would take the light bulb out of his room
• J. lied from time to time about things like doing his home work, an advent calendar and other relatively trivial matters
• When J. indicated that "G." [the mother's partner] was his best friend and that he liked G., and Ms. Hukazalei confronted him on why he would say this since it was G. who had locked him in his bedroom and taken out his lightbulb, J. did not answer this question but stated that it was true that he was locked in his bedroom, and he didn't like it, and that is why he wanted to sleep in a bedroom with the door open and a light in the hallway.

[12] J.'s statements were not audio or video recorded.

Child's Capacity and Circumstances

[13] J. was age 8 years when these statements were made. He is age 12 years now, and will be age 13 next month. The society led no evidence in this voir dire as to J.'s ability to testify. Nor did it lead any evidence that J. was fearful of testifying in court or that it would be traumatic for him to do so. J. has told several people about what took place in his home with his mother and sisters, including the discipline methods in that home. There is no evidence that he was any the worse for wear as a result.

[14] J. has been known to lie occasionally. He has said made statements that were contradicted by statements of others. He has made statements that seemed to be inconsistent, or at least suggested that one was not right.

Court's Analysis and Decision

Necessity Requirement Not Met

[15] The end result is that I do not find that the society has shown sufficient evidence to conclude that it is even reasonably necessary that J.'s statements to Lara Hukazalei must come into the court record by hearsay statements rather than directly from J. I do not conclude that J. will freeze if and when called to testify. He has a legal representative now, and the court can permit him a support person, and/or a screen, or even to testify by closed circuit television to make him more comfortable.

Distinction from Prior Ruling

[16] Why this change in position with respect to necessity? It is true that I initially ruled that the society had shown sufficient necessity for J.'s child hearsay through other witnesses to be admitted as trial evidence. However, that was with respect to what statements he gave to society investigators and police interviewers. Here, the statements in question were made to a foster mother. Moreover, they were not statements made in response to questions and interrogations. They were explanatory statements why he wanted to sleep with his light on.

Child's Right to Testify

[17] A child cannot be excused from testifying simply because he is a child. Nor can he be excused because he might find it uncomfortable. The court has accorded a child twelve years of age certain rights. I believe J. can testify. If he freezes or is unable to do so, then his statements to Lara Hukazalei may be re-assessed, in light of such inability, for admission as child hearsay.

Comparison to Sibling's Testimony

[18] Since making my former ruling, I have had the benefit of hearing J.'s older sister testify viva voce. She is age 15 now, not much older than J. I did not detect any antipathy to her testifying under oath, or much reluctance that she was doing so with her mother in the court. In fact, the sister, M., gave evidence that was, in many ways, much different than the evidence that the society sought to introduce as child hearsay statements made by her to other adults five years ago. I did not note any adverse effects of testifying on her.

Threshold Reliability

[19] With respect to threshold reliability, I am satisfied, based on the evidence that Lara Hukazalei has remembered what J. said on that occasion. Although five years have passed, it is still possible to remember certain conversations, particularly those that are "imprinted on one's brain". Cross examination did not cast much doubt on what she recalls J. saying. Presumably J. will recall equally vividly.

Ruling

[20] I do not admit into trial evidence the statements above noted made by J. to Lara Hukazalei as child hearsay statements. These will, for the present, have to come through J.'s viva voce testimony. The voir dire testimony will not be trial testimony.

Released: October 2, 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)