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: 2019-10-11
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: October 10, 2019
Reasons for Judgment released on: October 11, 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 three voir dires to determine the admissibility of child hearsay evidence consisting of statements made by the children M., J. and P. to clinical social worker Carrie-Lynn Wilton. She was providing a social work assist for Mr. A. Berthelot, OCL counsel for the three children. These Reasons are meant to provide three Rulings, one for each set of statements made by each child. In addition, OCL counsel also filed as evidence in his case, an affidavit of Ms. Wilton which was admitted as Exhibit 19 in this trial, subject to possible judicial redactions. The voir dires proceeded as blended voir dires.
[2] There was no order made for evidence in chief to be given by way of affidavit in this trial. However, at a trial management conference held June 6, 2019, I indicated that I had no objection to the parties using affidavit evidence in chief so long as they did not contain hearsay which could not qualify for admission as trial evidence either on a classic hearsay exception, or on the principled approach (which requires a demonstration of necessity and threshold reliability). I also did not want such affidavits to contain opinion evidence unless the affiant was qualified by the court as an expert.
[3] Ms. Wilton was called to provide viva voce testimony. Her affidavit was actually superfluous as she could have been asked questions about whatever she included in her affidavit. However, it was tendered as evidence. At one point, all counsel agreed to let her affidavit be filed. However, I declined to do so as it contained hearsay statements from all three children that were intended to be accepted by the court for the truth of what the statements said. The statements were made the subject of voir dires to determine their admissibility as trial evidence. Technically, the onus fell on OCL counsel to persuade the court as it was he who filed the affidavit, and Ms. Wilton was his witness. However, it was the society which wanted such statements as trial evidence. The society's reasoning, as I understand it, was so that it could cross examine Ms. Wilton on her affidavit and explore more deeply the (hearsay) statements of the three children made to her. Why it wanted to do this was, I imagine, so that it might show discrepancies in what the children told her and what they told others. Included in what M. told others was her viva voce testimony in this court where she testified as a witness for the society. In any event, the affidavit was admitted subject to any portions being struck out that offended the rule against hearsay.
M.'s Hearsay Statements to Ms. Wilton
[4] In a meeting held March 8, 2019, Ms. Wilton asked M. about the discipline in the home. M. made these statements:
- that she [M.] chose the type of her discipline
- that she chose going on her knees with her nose to the wall and holding soup cans in her extended arms instead of going to her bedroom
- that G. [the mother's sometimes live-in partner] had yelled once when a door broke and a part of it fell
- that she never felt afraid of G.
This last statement is technically (and marginally) one of state of mind as opposed to hearsay and is admissible on that basis.
[5] With respect to the necessity of having this evidence come into the trial through Ms. Wilton as child hearsay, there was a huge obstacle. That obstacle was the fact that M. had already been called as a witness by the society and had already testified. The society simply did not like her answers given when she testified. It is difficult to convince the court that M. could not testify when she in fact did. So necessity was not close to being proven. Threshold reliability was moot as necessity and reliability are conjunctive pre-requisites. Both are necessary to be shown.
[6] As a result, M.'s statements above are not admissible as trial evidence. Nor is the portion of the voir dire evidence that related to M.'s statements to Ms. Wilton. Also, as paragraph [31] of the affidavit of Ms. Wilton contained hearsay statements of M., this paragraph is struck and will not form part of her affidavit filed as exhibit 19 in this proceeding.
[7] Counsel for the society asked to clarify whether certain questions put to Ms. Wilton and her answers in the voir dire, aside from M.'s hearsay statements would be part of the trial evidence. I said that it would not, and if it wanted it to be, she would have to be asked the same questions outside of the voir dire. I did so and those questions and answers are part of the trial evidence.[1]
J.'s Hearsay Statements to Ms. Wilton
[8] J.'s statements to Ms. Wilton were made on June 27, 2019. She spoke with him and enquired about discipline in his home. J. stated:
- discipline was nose to the wall kneeling
- no hitting at all
- there was some yelling
- he didn't recall his having to hold any soup cans
- he was never locked in his room
- his mother would never have them kneel
- G. would do this when his mother was away
- most of the time, his mother was not at home
[9] The necessity argument ought to have been made by OCL counsel but it was mostly made by counsel for the society. Basically, it was a repetition of previous submissions, namely, that the court had found necessity for J.'s hearsay statements before, on two occasions, and the court should be consistent and find the same for these. I had, in fact, found it was reasonably necessary for J.'s hearsay statement to two society child protection workers to be introduced as trial evidence. However, I had also found that other hearsay statements made by J. to others did not meet the necessity criterion. This was primarily because I had more evidence about J. by the time of these latter rulings. This additional information persuaded me that J. could testify and accordingly, I declined to rule favourably on admissibility of J.'s hearsay statements. For the same reasons, I rule here that necessity is not shown and J.'s hearsay statements to Ms. Wilton are not admissible under the principled approach to the rule against hearsay. Also, the voir dire evidence with respect to J.'s hearsay is not admitted as trial evidence.
[10] For much the same reasons as given above with respect to Ms. Wilton's affidavit filed as Exhibit 19, paragraph [46] thereof will be struck and will not form part of the trial evidence.
P.'s Hearsay Statements to Ms. Wilton
[11] I had previously ruled that P.'s hearsay statements made to society CPW Sarah Siegwart were not admissible.[2] I found that reasonable necessity existed for this evidence to come in as trial evidence through Ms. Siegwart. However, I was not convinced that the child's hearsay had sufficient earmarks of threshold reliability to meet this criterion.
[12] However, in the case of statements made by P. to Ms. Wilton these were made only a few months ago. They are recollections of events that transpired five years ago and, although she was only age 4 at that time, she seems to have some remembrances that include some details. Frankly, this is the first I had heard of certain of these details. While my reasons for my ruling with respect to threshold reliability of P.'s hearsay statements made five years ago are still valid, her statements to Ms. Wilton seem more reliable. They are more recent and are given at a more mature age (8 years vs 4 years). They were also documented by notes of Ms. Wilton but I understand that these notes still exist and are not shredded or destroyed. Moreover, there is no evidence that anyone edited these notes. I feel less reluctant to find that sufficient threshold reliability has not been shown in the hearsay statements made by P. to Ms. Wilton.
[13] What are these statements? They were elicited from P. in conversation in which she was asked about discipline in her home. They were:
- G.'s wife was at the door – knocking on it – she shut it accidentally and it broke G. was angry
- G. sometimes got angry at them and at mom
- G. never hit me
- G.'s discipline was kneeling with face to the wall and cans I couldn't put down
- Mom would say that it's not nice
[14] These statements are admissible under the principled approach to admission of hearsay as they meet both criteria of reasonable necessity and threshold reliability. They do not meet these criteria overwhelmingly, but they do not have to. The standard is still the balance of probabilities. Moreover, they still are subject to being gauged on the basis of their ultimate reliability.
[15] My ruling is that these hearsay statements of P. to Ms. Wilton are admissible as trial evidence. The voir dire evidence with respect to P.'s statements to Ms. Wilton is part of the trial evidence as this was a blended voir dire on consent of the parties. With respect to Ms. Wilton's affidavit, I do not strike out any portion that relates to Ms. Wilton's discussions with P.
Released: October 11, 2019
Signed: Justice John Kukurin
Footnotes
[1] As a gatekeeper
[2] These were questions about whether Ms. Wilton felt that M. was lying, telling the truth, minimizing or downplaying when she was speaking to Ms. Wilton.
[3] See voir dire Ruling released October 1, 2019 Re P.'s hearsay statements to S. Siegwart