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: 2019-10-03

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 25, 2019

Reasons for Judgment released on: October 3, 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.:

Introduction

[1] This is a ruling on a voir dire to determine the admissibility of child hearsay evidence consisting of statements made by the children J. and M.

[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.

[3] All counsel agree that the voir dire into these statements would 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.

Hearsay Statements of J. and M.

[4] J. was apprehended on November 28, 2019 together with his two sisters, M. and P. Following their apprehension, arrangements were put in place for access visits between all of them and their mother. The court has heard that there were a number of society employees who supervised these access visits. One of them was Michael Ryan Stuckey, a case aide, and sometime access supervisor. Mr. Stuckey gave an account at trial of a visit he supervised on December 4, 2014.

[5] Mr. Stuckey testified that he monitored the visit from an adjacent room which had a one way mirror and an audio feed. He also indicated that he typed his "case notes" that is, his observations and comments of the visit, as the visit was ongoing. He had, and referred to, a copy of these typed case notes when he testified at trial. The case notes were not tendered as, and not made an exhibit, either in the voir dire or at trial.

[6] In the course of the visit, certain statements were made in the conversations between the mother and the three children: M., J. and P., and between the children themselves. As Mr. Stuckey began to recount what was said, objections were made by counsel for the mother and for the children. A voir dire ensued to determine if a particular statement was admissible or not.

[7] No statements were not audio or video recorded. The only recording was by Mr. Stuckey in his "case notes". It appears that the society has a recording system where case notes can be typed in by any worker. Mr. Stuckey indicated that at time of trial, he recalled the conversations and statements that were made.

Necessity Re: M.

[8] M. was age 10 when these statements were made. She is now age 15. She and J. have remained together in foster care over the past five years. 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 December 2014? The society actually adduced no evidence on the issue of necessity to have the child hearsay admitted through Mr. Stuckey rather than to have this information from M. herself.

[9] 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. There is no credible evidence that to do so would be traumatic for her.

[10] I am not satisfied that it is necessary that factual evidence be presented in this trial through the hearsay evidence of the society worker, Michael Ryan Stuckey. M. is now age 15 years. She is not two or three. She has legal representation to assist her. 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, when she is considerably more mature and more cognitively developed. I had previously ruled, in other voir dires held in this proceeding, that M.'s hearsay statements tendered through other society witnesses, were not admissible on the basis that the society had not satisfied the necessity criterion in the principled approach.

Necessity Re: J.

[11] 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 cogent 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, in out of court venues, 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.

[12] 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 on this occasion 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.

[13] 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 to be admitted through other witnesses 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 his mother (or sister). Moreover, they were not statements made in response to questions and interrogations. They were statements made in the course of a three way conversation overheard by Mr. Stuckey. In considering whether it would be traumatic for J. to testify to what he and his mother and sister M. spoke about in the access visit of December 4, 2014, I have no evidence whatsoever. Whether he would even remember such conversation is unknown unless he were called as a witness and were asked about it. If he could not give any testimony about what was said back then, perhaps the child hearsay route might be re-assessed. A child cannot be excused from testifying simply because he is a child, or because it might be uncomfortable.

[14] Since making my former ruling dealing with necessity in relation to J.'s out of court hearsay statements tendered through other society workers, I have had the benefit of hearing J.'s older sister, M., testify viva voce. [2] She is age 15 now, not much older than J.. I did not detect any significant aversion 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 in her, any adverse effects of testifying. I admit that this experience has modified my thoughts on "necessity", as a pre-requisite for admission of child hearsay as trial evidence. It also has made me more suspicious about the accuracy of society recorded statements and the methods by which such statements are required to be kept and are actually kept in the society's recording system.

[15] As far as J.'s statements on the occasion of the December 4, 2014 access visit, I am not satisfied that the society has met the necessity requirement in the principled approach to admission of his child hearsay statements, and they are therefore ruled inadmissible.

State of Mind Statements of J. and M.

[16] There were two categories of statements made by J.. The hearsay statements were tendered by the society for the truth of what the statement contained. There were other statements that were not tendered for the truth of their contents, but rather for the fact that they were said. In clarifying what relevance the fact that they were said had to the trial, counsel for the society indicated that these statements of J. and M. were tendered for a non-hearsay purpose, for the purpose of showing their "state of mind".

[17] "State of mind" statements, in the views of some, are exceptions to the rule against hearsay, and in the view of others, are not caught at all by the rule against hearsay. In the case of either belief, they are admissible when presented through a third party other than the person who made the statement (i.e. the "declarant"). However, to qualify as "state of mind" statements, the jurisprudence has developed some pre-requisites [3] and these are succinctly set out below:

(i) a statement asserting a condition or state;

(ii) the statement must describe a contemporaneous physical, mental or emotional state of the declarant;

(iii) the statement may not describe the cause of the state, whether it be past or present events;

(iv) the mental state can include a person's present intention to do a future act; and

(v) the statement must not be made under circumstances of suspicion.

[18] With respect to the statements made by M., the only one that meets these requirements is:

"I'd rather be in foster care than at home".

This was said while M. was in a time out imposed by her mother.

[19] The statement "Try it for five hours" made by M. to her mother does not describe a contemporaneous physical, mental or emotional state of M.

[20] With respect to the statements made by J., the only statement that meets these criteria is what J. said when his sister P. asked her mother if G. could come for a visit:

"I hope not"

This is not the complete statement, but the balance of that statement contravened criterion (iii) above and described the cause of J.'s stated state of mind. Hence, it is excluded.

[21] The statement "You should have stopped him" does not meet criteria (i) or (ii) above, and seems to refer to a past event, or events, and thus contravenes criterion (iii) above.

[22] As to statements made by J. and M., in a mimic of a man's voice, these do not describe a contemporaneous physical, mental or emotional state and do not satisfy criterion (iii) above. Moreover, these statements seem to refer to past events and even if they could qualify under criterion (ii), they could not under criterion (iii) above.

[23] In summary, only M.'s statement above is admitted under the "state of mind" exception to the rule against hearsay.

Conclusion

[24] Accordingly, with respect to Mr. Stuckey's statements of what the children are reported to have said in the access visit he supervised on December 4, 2014, the statements that are hearsay whose purpose is to prove the truth of what the statements assert, do not pass the necessity requirement of the principled approach to admission of hearsay, and are accordingly ruled not admissible.

[25] With respect to the state of mind purpose for which statements are sought to be admitted, only the above noted statement of M. qualifies for admission. However, the use that this statement can be put is limited temporally.

[26] Although I ruled that M.'s statements to others are not admissible on "necessity" grounds, I do admit this one statement as I am not entirely convinced that "state of mind" statements are actually hearsay at all [4]. Justice Blishen, in her decision S.E. [5] commented on a majority decision of the Supreme Court of Canada relating to whether the principled approach to admission of hearsay applied to statements admitted for the purpose of establishing the state of mind of the declarant [at paragraph 7]:

In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.), Mr. Justice Iacobucci for the majority stated that the principles of necessity and reliability can be used not only to admit evidence that does not fit a traditional hearsay exception but to exclude evidence that falls within a specific categorical exception. Therefore, in considering the state of mind exception to the hearsay rule one must also consider whether or not the principled approached should be applied.

There was no attack that I recall on the state of mind purpose for which this statement was tendered.

Released: October 3, 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] M. was called as a witness by the society. This seemed somewhat inconsistent with the society's previous position that M. might find it difficult, even traumatic, to testify in front of her mother. That position was argued as a reason why it was necessary to hear M.'s out of court statements through other witnesses. Once it was ruled in a voir dire that such necessity had not been satisfactorily proved, the society called M.

[3] In Professor Rollie Thomson's article entitled Hearsay and Exceptions to the Hearsay Rule (Niman, H., Evidence in Family Law, Chapter 9-9:40:60), he sets out these five basic requirements that must be met for this category of statements to be admissible under the "state of mind" exception – cited in Family & Children's Services of St. Thomas and Elgin v. A.C., [2013] O.J. No. 3837, 2013 ONCJ 452, 231 A.C.W.S. (3d) 972, 38 R.F.L. (7th) 243, 2013 CarswellOnt 11764

[4] In the Law of Evidence (2d ed.) (Toronto: Irwin Law, 1999) authors Professors David Paciocco and Lee Stuesser make the following comments regarding statements of present mental state at page 118: "Where a person describes his or her present state of mind (emotion, intent, motive, plan), the person's statement to that effect is admissible where the state of mind is relevant." The inference is that statements indicating a person's mental state are not in fact hearsay.

[5] Children's Aid Society of Ottawa v. S.E., [2005] O.J. No. 2087