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: 2019-10-16

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 16, 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 relating to admissibility of hearsay evidence consisting of statements made by the child P. when she was interviewed at the Ontario Provincial Police detachment in Elliot Lake on November 28, 2014 by society child protection 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 P. said in these statements was true. This "child hearsay" consists of factual information, mostly relating to discipline in her home.

[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.

[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.

The Statements

[4] The two statements made by P. at the OPP station on November 28, 2014 are the following:

• That when the children are in trouble, they have to kneel on the floor and put their noses to the wall

• That J. and M. get their hands tied behind their backs and locked in the basement

[5] As P. was recounting this first statement, she demonstrated by walking to a wall in the interview room and putting her nose up against the wall.

Circumstances of the Statements

[6] The circumstances of the making of these statements were gleaned from Ms. Siegwart and Cst. Crockery. First, it was Ms. Siegwart that interviewed P., not Cst Crockery. The reason given for this by Cst. Crockery was that P. was only 4 years old and was "antsy". It was hard to keep P. focused and she wanted to go elsewhere. During the viva voce testimony of Ms. Siegwart, a copy of her "Investigation Case Note" from the society's computerized recording system were introduced in the voir dire relating to P.'s statements at the OPP detachment as voir dire exhibit 1. Ms. Siegwart recorded her observations of P. on this occasion as being "excited", that she "constantly walked around the room" and that she "did not sit down at all".

[7] The notes do not say that the interview started with any discussion with P. of knowing the difference between the truth and a lie, much less any acknowledgement from P.. The interview was not under oath or solemnly affirmed. It was audio and video recorded by the OPP, and another police officer [Officer Beveridge] was monitoring from a different room and making notes of any highlights in the statements provided by P.. The OPP recordings no longer exist as they were apparently destroyed. Ms. Siegwart stated that the observations she made and that are noted in her case note are her own. The interview started at 3:10 pm. Its duration is not known. Ms. Siegwart made some handwritten notes about P.'s statements which notes were soon thereafter shredded.

NECESSITY

[8] The first pre-requisite of the principled approach to admissibility of hearsay statements is 'necessity'. It is universally accepted that this means "reasonable necessity". The onus of showing this is on the party seeking to introduce the hearsay evidence at trial. That falls on the society. However, it is the civil standard of proof, namely, on the balance of probabilities.

[9] I ruled on necessity in the previous voir dire relating to what P. stated when interviewed at her school at about 10 or 11 am earlier that same day, by Ms. Siegwart and Ms. Goulding. I felt that an 8 year old child would not likely remember at trial what she had said some almost 5 years before when she was only age 4. Moreover, it is clear from hearing both Ms. Siegwart and Cst. Crockery that P. was distracted, not focused, and "antsy" when she was interviewed at the OPP station. P. kept no notes of what was said. Ostensibly, Ms. Siegwart did. In these circumstances, and also to be consistent with my previous ruling, I find that it is reasonably necessary that P.'s statements are provided in hearsay form through evidence other than her own viva voce testimony at trial.

THRESHOLD RELIABILITY

[10] The question of threshold reliability is a bit thornier. There are several reasons why I find that P.'s statements at the OPP station do not meet this requirement.

[11] "Threshold reliability" is typically met when sufficient trust can be put in the truth and accuracy of the statements because of the way in which they came about. The legal test for the court to apply at a voir dire involving children's statements is whether the circumstances surrounding the statements achieve threshold reliability -- not whether the statements are ultimately reliable. The question for threshold reliability is whether a particular statement is sufficiently reliable to be admitted.

[12] Justice Parry described this in Children's Aid Society of St. Thomas and Elgin County v. A.H., 2017 ONCJ 852 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."

[13] 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]."

[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"

Considerations for Threshold Reliability

[15] Hearsay statements, especially child hearsay statements, can arise in an almost infinite variety of circumstances. To determine if the pre-requisite of threshold reliability is met, there may be many considerations that have to be examined. They must be looked at with a view to whether a particular statement is sufficiently reliable to be admitted. Among the various considerations that other courts have applied to the question of threshold reliability are the following:

• Location of interview – did it take place in child's home / society office / police station / child's school / elsewhere

• Leading questions were never / sometimes / always used – is there any evidence of what questions were asked? Do child's statement look like they were responding to questions asked

• Was there any dialogue to determine exaggeration, continuity and time resulted in inaccurate responses

• Did declarant child make the statement under oath / solemnly affirmed

• Was declarant child questioned about and confirmed s/he knew difference between truth and lie

• Were statements audio recorded (and transcribed)

• Were statements video recorded (and transcribed)

• Are there internal discrepancies or contradictions in the child's statement

• Is there any cross-references to independent events, to test child's memory and attempt to verify his statements, resulted in inaccurate answers;

• Is there free flowing disclosure of information? was it permitted;

• Were any questions of an adverse nature were put to the child

• Was there any attempt / no attempt to seek repetition of disclosures in a different chronological order

• timing, demeanour, the personality of the child,

• the intelligence and understanding of the child

• the absence of any reason to expect fabrication in the statement

• omission from the officer's notes.

• the child's statements have been accurately and objectively reported,

• an absence of those factors which would undermine the reliability of the child's statement

• the child had been / had not been manipulated, coerced or pressured into making such a statement.

• perception, memory or sincerity of the child

Application to P.'s Statements

[16] In the case of P.'s statements at the OPP station, and her personal circumstances at this time, it is clear that she was distracted, unfocused, excited, antsy, ran around the room, would not sit, and wanted to be elsewhere. She was only age 4. She was taken to the police station by the society workers who had just apprehended her and removed her from her school. The purpose was to conduct an interview in a joint society-police investigation to determine if a crime had been committed. I infer that P. had no choice as to whether she wanted to participate in the interview. Moreover, P. had just that same morning been questioned at her school by Ms. Siegwart and Ms. Goulding about the same subject matters that the statements at the OPP station were about. The statements she apparently made at the school were repeated at the OPP station but were nowhere near as fulsome.

[17] The questioning itself has also to be scrutinized. There is no evidence in either the testimony of Cst. Crockery or of Sarah Siegwart, or in the "Case Note" made exhibit 1 in this voir dire, that P. was under oath, or that she solemnly affirmed, or that she was asked if she knew the difference between the truth and a lie, or stated that she did. The case note was clearly not a complete account of what transpired. It says nothing about what questions were put to P. by Ms. Siegwart. Ms. Siegwart did the interviewing and it is close to inconceivable that she asked no questions of P., and that P. would come up with the statements she did spontaneously, and without some prompting.

[18] The recording of what took place also contributes to unease in the threshold reliability of these statements. The most accurate and most reliable recordings were the audio and video recordings made. The second most accurate would have been the handwritten notes of Ms. Siegwart. None of these are available at trial. Ms. Siegwart was conducting the interview with a difficult child so one has to question the quality of whatever notes she took. Her case note was devoid of any record of any questioning and that makes her "case note" suspicious. She didn't independently remember what she asked P.. She could only state what the society's policy was with respect to the type of questions its workers asked of children in such interviews.

[19] The audio/video recording was actually made and kept by the OPP. No one knew what became of it. The society knew even back then that it would need children's statements to prove its case, and that the best evidence, short of calling the children themselves, would consist of these recordings. The society never obtained a copy even though this was clearly a joint investigation. It did not even know if it requested one. Cst Crockery did not know what became of the recording and could only say what his police service's policy was with respect to keeping such recordings. The case note also states that the "interview/observation" was transcribed by the "Police". Where this information came from was not mentioned in the evidence. It is highly unlikely, in the evidence that I heard in the voir dire, that any part of P.'s interview was actually "transcribed" and this again questions the accuracy of the society's "case note" of this interview.

[20] Not all of what went on is unfavourable on the issue of threshold reliability. As stated, P. repeated some of what she had said earlier at the school. However, not all of it. That difference may be ascribed to her age, her state of mind at the time of the OPP statements, to whatever questions were put to her, or perhaps to mere forgetfulness. P. was reported to have said that her siblings, J. and M., had their hands tied behind their backs. She said nothing about her own hands. It must be noted that both J. and M. were also interviewed by Ms. Siegwart. Both denied that they had their hands tied behind their backs. Both were older, and were described as much more self controlled than was P. Their statements contradict P.'s on P.'s second statement. In Cst. Crockery's testimony, the tying of children's hands would, to him, have been an indication of criminal conduct that he would have taken seriously. Yet no charges were laid by the OPP as a result of P.'s statement on this factual event. The inference is that this was not a reliable statement, at least to support laying a criminal charge. While contradiction may be more relevant in assessing ultimate reliability, it plays some role in assessing threshold liability, especially when there are two direct contradictions.

Conclusion on Threshold Reliability

[21] In summary, and based on the various considerations above, I am not satisfied that P.'s statements at the OPP station have met threshold reliability required to permit these hearsay statement to be admitted as trial evidence on the principled approach to the rule against hearsay.

[22] With respect to the observation of P.'s demonstration mentioned in the case note and in Ms. Siegwart's testimony in this voir dire, that observation is not hearsay but is first hand evidence of Ms. Siegwart and is admissible as such, provided that she repeated it in her trial evidence. The voir dire testimony, in this blended voir dire, would be admissible as trial evidence only if the ruling on the voir dire was favourable to the society. It was not.

Released: October 16, 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)