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: 2019-10-10

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

Before the Court

Justice: John Kukurin

Heard on: October 9, 2019

Reasons for Judgment released on: October 10, 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.:

Introduction

[1] This is a ruling on a voir dire relating to admissibility of hearsay evidence consisting of statements made by the child J. to Ms. Melanie Urquhart, on December 4, 2014. Ms. Urquhart was a child services worker (CSW) with the applicant Children's Aid Society of Algoma at that time. J. had been apprehended from the care of his mother, along with his two sisters, M. and P., on November 28, 2019, a week before. The statements were made at the Hukazalei foster home where all three children were then residing.

First Set of Statements

[2] The first statements made by J. were:

(a) that it was not his mom's fault

(b) that G. had done all that stuff

(c) that he wanted to return to his mom's care

Second Set of Statements

[3] Another set of statements were made by J. to Ms. Urquhart on January 20, 2015, approximately a month and a half later. These were made in the context of a discussion that Ms. Urquhart was having with all three children. Specifically, she was reviewing with them a booklet setting out the rights of children in care. In the course of that discussion, J. asked:

(a) So we can't be forced to kneel for ten minutes?

(b) So we can't be locked in our bedrooms?

Age and Circumstances of Statements

[4] J. was age 8 when he made such statements. He was age 12 at the time of the voir dire and will turn age 13 in November 2019. He took no notes of what was said at the time these statements were made. Ms. Urquhart testified that she typically makes handwritten notes of what occurs at certain events and, in following society policy, inputs (by typing) those handwritten notes into the society's computerized recording system where they are called "case notes". The handwritten notes are then destroyed. I did not hear her testify that she did all of this with respect to J.'s statements on this occasion. However, this was stated to be the case in submissions. Clearly, Ms. Urquhart was referring to some notes as she testified.

[5] The circumstances of the first set of statements by J. were somewhat unusual. It was the first time that Ms. Urquhart had met J. She introduced herself to him and to his sisters as their child services worker. At that point J. blurted out these statements, with no prior questioning or prompting by Ms. Urquhart. They came literally out of the blue. Ms. Urquhart testified that they were stated impulsively.

[6] Ms. Urquhart did not follow up with J. to get any details of what he had just stated. She stated that it was not her role to investigate; that was within the function of the child protection worker. Also, J.'s sister M. was present when these statements were made and Ms. Urquhart felt that this was not an appropriate time to attempt to get an explanation from J. of his statements.

State of Mind Statement

[7] The society wishes to introduce these statements for the truth of what they state. I can say that the statement about J.'s wishes to return to his mother's care is a statement that qualifies as one reflecting his state of mind at the time it was made[^1]. It is, in my view, not a hearsay statement at all. Therefore it is admissible, through Ms. Urquhart, as a statement reflecting J.'s state of mind.

Principled Approach to Hearsay

[8] Voir dires were held to determine the admissibility of the other two of these first set of statements of J. as well as his second set of statements (which actually were questions). 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, and it is for the purpose of establishing the truth of what the statement says.

[9] All counsel agree that the voir dires into these statements would proceed on a blended basis.[^2] In other words, whatever evidence is given in the voir dires will be evidence in the trial as well. This assumes that it will be ruled admissible.

NECESSITY

[10] On the issue of necessity, the society, as the party seeking to have the foregoing hearsay statements of J. admitted through Ms. Urquhart, has to establish that it is necessary to do so. The Supreme Court of Canada has ruled[^3] that "necessary" has to be interpreted as "reasonably necessary", an interpretation that has been adopted by all courts in this country. The standard on the society to do this is the civil standard of balance of probabilities. So what does the society say to satisfy this court that it is reasonably necessary that J.'s statements not be made by him in his own testimony before this court, but rather that these statements be admitted through Ms. Urquhart's report of what he said almost five years ago.

[11] The main argument of the society is that this court has already made a ruling admitting as trial evidence, the hearsay statements made by J. to other society workers, namely, Ms. Heather Goulding and Ms. Sarah Siegwart. These were made on another occasion a week prior to the ones made in Ms. Urquhart's presence. The court did, in fact, rule that the society had met the test of necessity with respect to J.'s statements made in the presence Ms. Goulding and Ms. Siegwart.

[12] However, it should be remembered that Ms. Goulding was the society's first witness. Ms. Siegwart was its second witness. These rulings were made in voir dires held during the course of their testimonies. At that time, the court had little evidence that related to necessity with respect to J.. Ms. Urquhart is the society's next to last witness. The court has heard considerably more evidence about J. and his ability to testify by the time Ms. Urquhart testified.

[13] From the society's submissions on "necessity", I infer that whatever submissions it made in the voir dires held with respect to Ms. Goulding's testimony and Ms. Siegwart's testimony, are being repeated here.

[14] Those submissions were that:

• J. was age 8 when the statements were made and is only age 12 now.
• J. indicated to an OCL clinical worker his wishes not to testify in court
• J. did not take any notes of what was said [Ms. Urquhart did]
• J. was animated at first, but when questions veered to discipline in his home, he drastically changed, became vague, guarded and was clearly emotionally impacted
• The society may call the children as viva voce witnesses if the admissibility of the child hearsay rulings went against them
• The statements were made in an unannounced visit by the workers to his school and were 'impromptu' in the sense that there was no preparation
• The best interests of J. must be a factor that the court applies in its voir dire ruling on admissibility but the society cannot point to any provision in s.74(3) CYFSA that pertains to such ruling

Updated Evidence on J.'s Capacity

[15] Since the admissibility rulings made in the case of the testimonies of Ms. Goulding and Ms. Siegwart, the court has heard much more about J. For example:

• He is technically age 12 but will be age 13 within about a month
• He has no speech impairment or any cognitive impairment that might preclude him from testifying about discipline in his former home.
• He has been psychologically assessed in 2016 and seems to have a learning disability for which the educational authorities have developed an individual education plan (IEP) to assist him academically
• He apparently is on physician prescribed medication for conditions that may or may not have been formally diagnosed, namely ADHD and ODD. The medications have been adjusted and seem to be working well at the present.
• He is able to communicate with society workers, teachers, health professionals and have meaningful conversations with them.
• He has been noted by educational and society related personnel to have difficulties in focussing but is able to be re-directed and participate in conversations
• He still prefers not to testify but he wanted a message about his wishes to be presented by others (ie OCL clinical social worker Ms. C. Wilton) to the court
• He has spoken about, or mentioned, or referred to, discipline in his home to a number of people in the past including Ms. Goulding, Ms. Siegwart, Cst. Crockery, Ms. Hukazalei, and his own siblings and mother, sometimes in response to questions, and sometimes unsolicited.
• J. is in good physical health and enjoys his present foster home. He is able to express his discomforts and does so, such as wanting to live with his sister, wanting to change foster homes, wanting to change medications that he felt were not working for him.

Court's Assessment

[16] The foregoing paints a different picture of J. today. I am not persuaded that J. cannot or should not testify today. In terms of his state of mind, that evidence may come through any of a number of witnesses. As for recounting factual events in the past, I do not feel that the society has satisfied me that this information necessarily must come to the court through Ms. Urquhart as J.'s hearsay and cannot come from J. himself. If he is unable to remember, or if he cannot testify for some other valid reason when he is called, perhaps Ms. Urquhart's testimony with respect to J.'s statements can be re-assessed.

Inconsistencies in J.'s Statements

[17] There is another reason why J.'s first hand testimony is to be preferred over his hearsay statements. This is because, on the evidence heard to the day of Ms. Urquhart's testimony, I have heard various statements from others reporting what J. has said at different times. These statements relate to past factual events in many instances. These have not all been consistent. In fact, some have been contradictory and some have been incongruous with others. For example, J. has been reported to have characterized G. (the mother's sometimes live-in partner), as someone who does not yell, is nice to him, as J.'s best friend. He has also reported that G. punished him, locked him in his bedroom at night, made him kneel for periods of time facing the wall. He most recently, J. has reported through Ms. Wilton, OCL clinical social worker, that he adamantly does not want G. in his home or anywhere near him, that he will call the "cops" if he is around and that he wants nothing to do with G.

[18] The other major area of discrepancy of J.'s statements is who imposed the discipline in J.'s home. J. is again inconsistent. At one time he is reported to have said it was his mother. At others, he has said it was "G.". At still others, he has said "they".

Previous Rulings on Necessity

[19] I note that although I previously ruled that the society had met the necessity requirement for certain of J.'s statements (Ms. Goulding and Ms. Siegwart), I also ruled that it had not for others (Ms. Hukazalie and Mr. Stuckey). These latter rulings were also made when I had more evidence about J.

RULING

[20] My ruling is that the evidence of J.'s statements to Ms. Urquhart are not admissible on the basis that they do not meet the necessity pre-requisite of the principled approach to admission of child hearsay.

[21] In view of this ruling, I need not deal with threshold reliability, the other pre-requisite in the principled approach test to admissibility of hearsay evidence.

Released: October 10, 2019

Signed: Justice John Kukurin

Footnotes

[^1]: The jurisprudence with respect to state of mind statements requires these pre-requisites: (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

[^2]: See Family and Children's Services of St. Thomas and Elgin County v A.C., [2013] O.J. No. 3837 (Tobin Ont CJ)

[^3]: R. v Khan, [1990] S.C.J. No. 81, [1990] A.C.S. no 81, [1990] 2 S.C.R. 531, [1990] 2 R.C.S. 531, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1