Court File and Parties

Ontario Court of Justice

Date: October 1, 2020

Court File No.: Brampton 3111 998 20 524

Between:

Her Majesty the Queen

— and —

A.W.

Before: Justice G.P. Renwick

Application Heard: 29-30 September 2020

Reasons for Judgment Released: 01 October 2020

Counsel:

• C. Vanden Broek, counsel for the Crown
• G. Butler, counsel for the Defendant A.W.

Restriction on Publication

Pursuant to section 486.4 of the Criminal Code, there is a continuing Order in place making it an offence for any person to publish, broadcast, or transmit in any way any information that could identify any child witness in this matter. This decision does not refer to any child witness by name. This decision may be published.

ADMISSIBILITY RULING

RENWICK J.:

INTRODUCTION

[1] During the trial of the Defendant on charges of assault causing bodily harm to his intimate partner, assault by suffocation (same complainant), sexual assault (same complainant), assault of the child complainant, and threaten bodily harm (also involving the child complainant), the prosecutor applied for substantive admissibility of a prior statement made by a child witness who testified in this proceeding.[1]

[2] The child witness made a statement to police, which was recorded on video, within days of the alleged violent fight between the Defendant and the child's mother. The alleged adult complainant has not testified on the application and it is uncertain whether she will testify at trial. The child witness did not adopt the video statement given to the police, as initially anticipated, pursuant to s. 715.1 of the Criminal Code.[2] Before me, the child seems to be attempting to explain away many of the allegations that were initially made to the police. Moreover, while testifying, the child has claimed to have lost almost all memory of the incident about which the child spoke to the police.

[3] On this basis, the prosecutor seeks a finding that the out of court, prior inconsistent statement of the child witness is necessary, reliable, and more probative than prejudicial to the truth-seeking function of the trial. The prosecutor seeks to rely upon other evidence received during the blended admissibility voir dire and the trial as corroboration of the material aspects of the child witness' statement.

[4] The prosecutor did not follow the Milgaard procedure,[3] nor seek to rely upon the provisions of ss. 9(1) and/or 9(2) of the Canada Evidence Act, to attempt to have the child adopt the prior (now inconsistent) statement, as a prelude to this K.G.B. application.[4]

[5] The Defendant opposes the admissibility of the child's earlier statement mainly on the grounds that threshold reliability is not established on a balance of probabilities. The Defendant also asserts that the voluntariness of the hearsay statement has not been proven on a balance of probabilities.

GOVERNING LEGAL PRINCIPLES

[6] Generally, out of court declarations sought to be introduced to prove the truth of their contents are inadmissible because the veracity and reliability of the statements cannot be tested by cross-examination: R. v. Bradshaw, 2017 SCC 35, at para. 1 and R. v. Middleton, 2012 ONCA 523, at para. 32. Exceptionally, hearsay statements are admissible if they fit into a traditional category of hearsay evidence or they meet the twin criteria (necessity and reliability) under the principled exception, on a balance of probabilities.[5]

[7] My role as the sentinel of trial fairness cannot be overstated. As a trial judge, the court:

acts as an evidentiary gatekeeper. She protects trial fairness and the integrity of the truth-seeking process (Youvarajah, at paras. 23 and 25). In criminal proceedings, the threshold reliability analysis has a constitutional dimension because the difficulties of testing hearsay evidence can threaten the accused's right to a fair trial (Khelawon, at paras. 3 and 47). Even when the trial judge is satisfied that the hearsay is necessary and sufficiently reliable, she has discretion to exclude this evidence if its prejudicial effect outweighs its probative value (Khelawon, at para. 49).[6]

[8] In Bradshaw, the Supreme Court discussed the threshold to admit hearsay statements in the context of a co-conspirator who had already pleaded guilty and then had refused to be sworn at the defendant's trial. In that case, necessity was assumed given the testimonial incapacity of the co-conspirator witness.

[9] In respect of reliability, the Supreme Court held:

To determine whether a hearsay statement is admissible, the trial judge assesses the statement's threshold reliability. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it" (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, at para. 75). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30).[7]

[10] Procedural reliability considers whether there are adequate means of testing the reliability of the proposed evidence. Whatever means exist must provide the trier of fact with an adequate basis upon which to assess the truth and accuracy of the hearsay statement. If the hearsay statement is video recorded, the presence of an oath and a warning about the consequences of misleading the police can act as safeguards to inoculate an out of court statement from the dangers traditionally associated with the admission of hearsay evidence. Cross-examination may provide the best way to test the hearsay evidence.[8]

[11] A hearsay statement may also become admissible if substantive reliability is established. Substantive reliability considers the circumstances of the hearsay declaration and whether it is inherently trustworthy. This measure looks at whether there are sufficient circumstantial guarantees of trustworthiness to say that the only likely explanation of the hearsay account is that it is true. The court may also consider other evidence which corroborates or contradicts the proposed evidence during a substantive reliability review.[9]

[12] Procedural and substantive reliability can work together to establish that the proposed evidence has crossed the high standard of threshold reliability. To establish threshold reliability, the hearsay must be sufficiently reliable to overcome the specific hearsay dangers engaged by the application.[10]

[13] As the gatekeeper of admissibility, the court must be mindful not to look to the ultimate use or weight to be given to the proposed evidence (a task relegated to the court's role as the trier of fact). Rather, the trial judge's inquiry at this stage is normative: Is the proposed evidence reliable enough to become admissible evidence.

[14] The court in Bradshaw also discussed the role of corroboration in assessing threshold reliability:

A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay danger relates to the declarant's sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or perception, accuracy will be the issue.

Second, at the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the tendered statement. When assessing the admissibility of hearsay evidence, "the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility" (Khelawon, at para. 4). Thus, to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination (Khelawon, at para. 107; Smith, at p. 937). Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement (see U. (F.J.), at para. 40). Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist.[11]

[15] The court in Bradshaw provided a guide to determine whether corroborative evidence is of assistance in the substantive reliability inquiry. A trial judge should:

i. Identify the material aspects of the hearsay statement that are tendered for their truth;

ii. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

iii. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and

iv. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.[12]

ANALYSIS

[16] Although necessity was not argued by the parties, I cannot assume that it is made out. It has not been conceded by the Defendant.

[17] Nonetheless, in light of the child witness' failure to adopt the earlier statement, the minimization at trial of the events recounted, and the apparent lack of a current memory of the events, the only way the prosecutor can lead the earlier allegations is to seek admissibility of the child witness' police statement. As a result, I am satisfied on a balance of probabilities that necessity is made out.

[18] Given the child witness' out of court statement was video recorded, there is no issue as to what the child witness told the police. What the child witness stated on the earlier occasion is easily established, which is separate and apart from the veracity of what was said.

[19] Because the statement is being introduced to prove the unfolding of events and the cause of the adult complainant's injuries, the perception and memory of the child witness is a live issue. As well, the child witness may have knowingly misled the police as a misguided way of supporting the child's mother. This raises questions of motive and sincerity. Thus, the specific hearsay dangers apparent for this statement are the accuracy and truthfulness of the child witness' account.

Substantive Reliability

[20] The prosecutor did not suggest that the hearsay statement had any circumstantial guarantees of trustworthiness to establish that the only likely explanation for the contents of the hearsay account is that it is true.

[21] Instead, the prosecutor relies upon the following evidence to corroborate the out of court declaration:

i. The statement given by the sibling/child complainant;

ii. The photographs of the adult complainant taken by police;

iii. The nature of the adult complainant's injuries; and

iv. The evidence of the police officers respecting the Defendant's behaviour.

[22] The first step to determine the potential value of the corroboration evidence is to determine the material aspects of the hearsay statement which are being tendered for their truth. In this Application, the following aspects of the child witness' earlier account are being sought to prove some of the offences charged (in the order in which they appear in the child witness' account):

i. The child witness' parents were fighting;

ii. The child witness' parents were pushing and hitting each other;

iii. The fight ended with the adult complainant "on the floor bleeding;"

iv. The next morning, the child witness saw that the adult complainant's face looked like "a square;"

v. The child witness was "scared" that she would "lose" both mother and father;

vi. The child witness was "scared" that the child's mother may not "get better;"

vii. The adult complainant had three pieces of glass on her upper left chest, a swollen cheek, and she was bleeding from the left part of her chest and her nose;

viii. The candle thrown by the sibling scraped the adult complainant's shoulder;

ix. The Defendant took the adult complainant's phone and they started hitting each other; and

x. The Defendant "kicked" the adult complainant on the right side of her face, one time.

[23] The specific hearsay dangers implicated by the admissibility of the hearsay statement in this case are the truthfulness of the declarant and the accuracy of the account.

[24] Other possible explanations for the hearsay statement include:

i. The child witness has decided to pick the adult complainant's side and implicate the father for the mother's injuries;

ii. The child witness is attempting to cover up the adult complainant's role in either harming herself or injuries suffered from her intoxication, by implicating the Defendant;

iii. The child witness has misperceived what took place and what caused the adult complainant's injuries; and

iv. The child witness has mistakenly recalled what took place and what caused the adult complainant's injuries.

[25] I will consider each piece of alleged corroborative evidence to determine whether, given the circumstances of the case, the corroborative evidence rules out these alternative explanations such that the only remaining likely explanation for the hearsay statement is the declarant's truthfulness about, and the accuracy of, the material aspects of the statement.

The Statement of the Child Complainant

[26] It is not enough to simply rely on corroborative evidence to support the reliability of an out of court statement. The corroborative evidence must itself be trustworthy.[13] In this case, there are grounds for concern about the trustworthiness of the sibling's statement to police given the following:

i. The date of the statement – it was taken more than 5 weeks after the alleged incident and after the statement given by the older sibling/child witness;

ii. The tender age of the child when the statement upon which reliance is placed was taken (the child was 8 years and 11 months old); and

iii. The inconsistencies between the child complainant's testimony and the statement sought to be used as corroboration.

[27] The court in Bradshaw referenced an earlier decision and made it clear that:

"instances of statements so strikingly similar as to bolster their reliability will be rare." (para. 45). Lamer C.J. explained that a similar statement cannot bolster the reliability of a hearsay statement unless it is unlikely that "[t]he second declarant knew of the contents of the first statement, and based his or her statement in whole or in part on this knowledge" and unlikely that the similarity is due to outside influence (para. 40).[14]

[28] I cannot rule out that the child complainant's statement was tainted, even if only inadvertently, by the child witness who spoke to police some six weeks before the child complainant. Moreover, I cannot rule out the possibility that the child complainant was influenced by the adult complainant to make the statement that child ultimately gave to the police.

[29] For these reasons, I am unable to conclude on a balance of probabilities that the child complainant's video statement can be used as corroboration to bolster the child witness' hearsay statement.

The Photographs of the Complainant's Injuries

[30] Approximately four days after the alleged assault upon the adult complainant, police took photographs of her injuries. The photographs depict bruising or marks on different parts of the complainant's body (face, chest, shoulder, hip, etc.). No medical evidence was led to explain the nature or extent of the complainant's injuries or the significance of the markings captured by the photographs.

[31] The photographs depict several injuries to the complainant. I find that the photographs cannot corroborate that the complainant was likely recently injured as a result of the Defendant hitting the complainant, kicking her in the face, and causing her nose to bleed. The photographs do support the child witness' statement that the adult complainant had a swollen cheek and her face looked like a square. Also, the markings on the upper left chest area below the left shoulder of the adult complainant, captured by the photographs, closely support the child witness' account of the candle scraping the complainant in that area and glass shattering and three pieces of glass scratching her left chest area.

[32] Nonetheless, the photographs cannot corroborate how the complainant was injured (whether the marks she had were self-inflicted or accidentally caused) and are of limited value in corroborating the material aspects of the child complainant's hearsay. The corroboration is imperfect because it fails to negate alternative hypotheses for the hearsay statement.

[33] An alternative explanation for the injuries photographed by the police is the narrative that the children's mother was drunk, she fell, and she wanted to harm herself. Although the prosecutor urged the court against finding that the complainant's multiple injuries are inconsistent with a single fall, there is no way to know to what extent the injuries depicted in the photographs resulted from a fight with the Defendant versus injuries caused by a fall or self-inflicted harm.

[34] While testifying in chief, the child witness noted on more than one occasion that the child's mother was trying to hurt herself. This was confirmed during cross-examination. Unfortunately, the photographs were never shown to the child witness during her testimony. Nonetheless, on the basis of the evidence heard, it is impossible to conclude that the corroborative evidence found in the photographs would "show that the material aspects of the statement are unlikely to change under cross-examination."

The Nature of the Complainant's Injuries

[35] Several pieces of evidence revealed the extent to which the adult complainant was injured. The testimony of her co-worker, Krysta Massey, included a hearsay statement elicited during cross-examination. Ms. Massey testified that when the adult complainant returned to work, after an absence of several months, she advised that she had suffered a "concussion."

[36] Ms. Massey testified in chief that when her co-worker returned to work, she was noticeably different: she was subdued, forgetful, and she repeated herself. Ms. Massey also testified that the complainant had improved markedly since then, but she still wears "blue blocker sunglasses" as a result of her concussion.

[37] The evidence of two police witnesses also indicated the level of injuries sustained by the adult complainant. Sergeant Paul Corcoran discovered the complainant in her bed, some three days after the alleged assaults. She was initially unresponsive. He said that she had small cuts on her as if something had broken on her. He also testified that she had significant swelling to her face and head, and given her unresponsiveness, he believed she had suffered a serious head injury. The next day, the complainant attended the police station. Constable James Oliver attempted to take a statement from the complainant. He was unable to do so because she did not speak and seemed to be falling asleep.

[38] All of this evidence suggests that the complainant suffered a significant injury to her head. This corroborates the child witness' police statement in one respect. It supports the allegation that the Defendant kicked the complainant once in her head and she became unconscious.

[39] Does this apparent corroboration negate the other speculative explanations for the complainant's head injury (that it was self-inflicted, or the result of an intoxicated fall)? There is no basis in the evidence to support the theory that the complainant's unconsciousness and concussion came from a self-inflicted wound, unlike the evidence supporting the notion that the complainant wanted to jump out of the upper story window. Exhibit 2 is the video recording on the Defendant's cell phone which shows the adult complainant at the window, the screen appears to have been moved, and she is acting erratically as the children are screaming and trying to hold onto her; this evidence is also specifically confirmed by both children during their testimony.

[40] Although I can easily conclude that the complainant wanted at some point to jump out of the window, I cannot conclude on this evidence alone that she wanted to harm herself. Instead, it is equally plausible that she was simply trying to get out of the house by the closest means. The self-harm theory however, remains a viable explanation for the complainant's head injury. The fact of unconsciousness and a concussion does not negate the possibility that the adult complainant hit her own head, or intentionally banged her head on the wall.

[41] Could her injuries have resulted from a fall caused by her intoxication? Both children testified that their mother was drunk on the night in question. The child complainant testified that this likely explained her fall. This evidence was elicited in cross-examination about the causes of the bruises on the adult complainant.

[42] Again, there is no evidence which supports the theory that the complainant's intoxication caused her to fall so hard that she became unconscious and suffered a concussion, but this alternative theory cannot be discarded entirely. During cross-examination, the child witness was unable to say how many times the child's mother fell as a result of her intoxication.

[43] In the end, after a consideration of all of the evidence, I am not satisfied that the only likely explanation for the child witness' mention of the kick by the Defendant to his intimate partner's head is because this piece of the hearsay statement is accurate. This mention is not corroborated to the necessary degree required by Bradshaw (to the exclusion of other hypotheses) by the various pieces of evidence which proved that the adult complainant was unconscious and she had suffered a concussion.

The Defendant's Behaviour

[44] When the police arrived at the residence to conduct a wellness check on the adult complainant at the request of her supervisor after a poorly explained, three-day absence from work, the Defendant's behaviour drew police suspicion. The Defendant did not answer the door despite an obnoxious amount of knocking and doorbell ringing by Constable Shoaib Khan for about three-quarters of an hour. Moreover, the Defendant chose not to discuss the nature of the "family emergency" that had been indicated in text messages to explain the work absence to Ms. Massey. Also, when the police requested the Defendant to ask the complainant to come down and speak to the police, each time he apparently returned after speaking to her he told Constables Khan and Gary Simmons, "she does not want to come down."[15] Lastly, the Defendant did not initially agree to permit police to enter the home to see his intimate partner even though it was explained that there was a concern for her well-being.

[45] Once the police made observations of the adult complainant it was obvious that the Defendant had misled the police about her unwillingness to attend at the door. She was largely unresponsive and completely incapacitated. She could not indicate anything to the Defendant, much less that she was unwilling to meet briefly with the police. The head injury and swelling were significant and plainly visible. The complainant was taken to the hospital, where she remained until the next day.

[46] I have struggled to imagine alternative explanations for the Defendant's behaviour which do not implicate him in the complainant's head injury. Was the Defendant possibly concerned that the police may suspect he had caused injuries which were self-inflicted or the result of a drunken tumble? Is it possible that the adult complainant had created the ruse of a "family emergency" to explain away her own culpability in her head injury?

[47] I reject these alternative explanations as completely far-fetched and devoid of merit. The Defendant's actions in dealing with the police are so incongruent with the known and apparent concern for the complainant's well-being, the officers' repeated attempts to see the complainant, and the complainant's need of medical assessment (and possible intervention), that I am satisfied that the Defendant's actions are likely the product of his personal culpability. This is a major piece of corroboration of the most significant (material) aspect of the child witness' account: that the Defendant kicked the complainant in the head and caused her to become unconscious.

[48] The Defendant's actions that night are so stark and telling, they undermine all hypotheticals and speculation that the statement of the child witness was anything other than genuine (truthful) and accurate.

[49] On this basis, I am satisfied that the only likely explanation for the child witness' mention of the kick by the Defendant to his intimate partner's head is because this piece of the hearsay statement is truthful and accurate. This mention is corroborated to the necessary degree required by Bradshaw (to the exclusion of other hypotheses) by the various pieces of evidence that established that when the police arrived at the family home, the adult complainant was unconscious, she had suffered a significant concussion, and the Defendant intentionally did all he could to delay, obfuscate, and mislead the police with respect to her condition.

Procedural Reliability

[50] The out of court statement was unsworn. The officer interviewing the child witness told the child witness that it was a "rule" that it was necessary to tell the truth and that the child was not in any trouble.

[51] With one exception, the officer who interviewed the child witness did not use leading or misleading questions. The exception was when the officer asked:

Officer: Okay. So, when you said on Tuesday that your parents were fighting, you saw your mom fall down. Can you describe for me what injuries she might have had, where she was hurt? [Emphasis added.]

Several minutes before this question, the child witness indicated the following:

• Child Witness: The next day my mom was injured on her face, so then we had to make her, my dad made her soup and gave her water and stuff.

Officer: Mm-hmm.

C.W.: And then I think at six in the morning she woke up, because she had to go downstairs to get water.

O: Mm-hmm.

C.W.: And then she ran in the hall, but she fell so we had to all wake up. And my dad picked her up, brought her into the room. I went downstairs to get her water. [Emphasis added.]

[52] It was never asserted by the child witness that the "fall" was actually observed. Rather, the evidence indicates that the fell happened and then everyone "had to wake up." The question suggesting that the child saw the fall was potentially misleading, but I am satisfied in light of the answer given, that it did not undermine the procedural safeguard of open-ended questioning that predominated the interview with the child witness.

[53] The child witness testified and was cross-examined on the contents of the hearsay statement. This was a significant procedural safeguard. As the Supreme Court has held, "Some safeguards imposed at trial, such as cross examination of a recanting witness before the trier of fact, may provide a satisfactory basis for testing the evidence."[16]

[54] Despite the absence of an oath, I find that the procedural safeguards, including the direction to tell the truth at the start of the interview with the police, the near-exclusive use of open-ended questioning, and the availability of the child witness to testify and undergo cross-examination provide sufficient means of assessing the truth and accuracy of the out of court declaration.

[55] I have considered the effect of the cross-examination of the child witness. Much of the testimony failed to align with the account provided to the police. I find that this is likely the result of the passage of time and may be the product of a willful intention on the part of the child witness to mislead the court. That said, there is no evidence from the child witness during the viva voce testimony which directly speaks to the alternative explanations for the hearsay statement. In the end, the weight to be given to the prior statement (if any), and a reconciliation of the inconsistencies with the child's testimony are considerations which ought to be determined by the court during its role as the trier of fact, rather than during the gatekeeper function of admissibility.

[56] Despite concerns that the child witness may not have been truthful while testifying in suggesting that the events in question were no longer recalled, the fact remains that the court had the opportunity to see a recording of the child witness during the taking of the hearsay statement, in addition to the ability to observe the child witness in court, and to see the witness' demeanour throughout the evidence in chief and in cross-examination. These mechanisms all provided the court with sufficient means to assess the truth and accuracy of the child witness' prior statement.

Voluntariness

[57] The prosecutor did not lead any evidence from the child witness as to the voluntariness of the statement given to the police.

[58] Instead, the prosecutor submitted that the court's own observations of the child during the police statement provides sufficient evidence with which to assess the voluntariness of the statement.

[59] The parties agree that the statement needs to be proven voluntary on a balance of probabilities.

[60] There is nothing in the hearsay statement itself which attests to the voluntariness of the statement.

[61] Nonetheless, I am satisfied on a balance of probabilities that the child witness' police statement was voluntary for the following reasons:

i. The officer begins the interview with the child witness by advising that it is a "rule" that the witness must tell the truth;

ii. The officer also tells the child that:

The second rule that you have to understand is that you're not in any trouble, okay? No one's mad at you. You didn't do anything wrong. So just I know you are talking to the police at a police station, but you're not in any trouble, okay;

iii. The child appears comfortable, does not ask the officer to leave, nor does the child seek any assistance during the interview;

iv. The child responds to all of the officer's questions throughout the interview without any hesitation; and

v. There is no suggestion, nor even a scintilla of evidence to suggest, that the police undermined the voluntariness of the child witness' decision to give a statement.

Probity versus Prejudice

[62] The parties did not address this issue in submissions.

[63] However, the law is clear, despite a finding of threshold reliability and necessity, the court can determine that the prejudicial effect of including hearsay evidence in the trial outweighs any potential forensic benefit gained by its admission.[17]

[64] The probative value of the evidence is potentially high. The evidence may assist the court to determine whether the allegations are proven beyond a reasonable doubt.

[65] The term prejudicial effect is a term of art. It concerns the possible misuse of evidence for an improper consideration, or the confusion of issues, or the expenditure of court resources that are incommensurate with the value of the evidence.

[66] In this case, I cannot find that the admission of the child witness' statement has any prejudicial effect. The court is presumed to know how to evaluate the weight of evidence and to which issues evidence may properly be put. There is no suggestion that admissibility of the child witness' hearsay statement will distract the court or otherwise be used for propensity or other improper reasoning.

CONCLUSION

[67] Admitting the hearsay statement of the child witness would not undermine the truth-seeking process and trial fairness in this case.

[68] Hearsay is presumptively inadmissible. However, I find on a balance of probabilities that the presumption has been rebutted in this case. The prosecutor has established on a balance of probabilities that the hearsay is necessary and that there are sufficient procedural and substantive indicators of reliability[18] that the child witness' statement meets the requirements of threshold reliability for admissibility in this trial.

[69] The child witness' statement was voluntarily made. The probative value of the hearsay outweighs any prejudicial effect its admission would cause.

[70] For these reasons, the Application is allowed.

Released: 01 October 2020

Justice G. Paul Renwick

Footnotes

[1] In order to protect the identity of both of the children witnesses, this decision will refer to the first child who testified as the child complainant (named in counts 4 and 5 of the Information) and the second child (the one whose statement is the subject of this application) as the child witness. Both children are siblings and the children of the Defendant and the adult complainant who is named in counts 1, 2, and 3.

[2] Earlier in the trial, during the sibling's testimony, a prior statement (made by the child complainant) to the police was adopted and made admissible at trial, pursuant to s. 715.1 of the Code.

[3] See R. v. Milgaard.

[4] See R. v. B. (K.G.).

[5] Bradshaw, supra, at para. 23.

[6] Bradshaw, supra, at para. 24.

[7] Ibid., at paras. 26-27.

[8] Ibid., at para. 28.

[9] Bradshaw, supra, at paras. 30-31.

[10] Ibid., at para. 32.

[11] Ibid., at paras. 44 and 47, respectively.

[12] Bradshaw, supra, at para. 57.

[13] Bradshaw, supra, at para. 50.

[14] See R. v. U. (F.J.), as quoted in Bradshaw, supra, at para. 84.

[15] While no issue of voluntariness was raised respecting these utterances, I need not resolve whether they were the product of a free choice to speak to persons in authority made with an operating mind. I find that the fact of the utterances was not challenged (either directly, by other evidence, or during cross-examination of the police witnesses) and there was no issue regarding the accuracy of these alleged utterances. Consequently, I am not relying on these utterances as proof of the truth contained within them.

[16] Bradshaw, supra, at para. 28.

[17] Bradshaw, supra, at para. 24.

[18] For clarity sake, it should be understood that both the procedural reliability and the substantive reliability (corroboration found by the Defendant's behaviour with the police) are independent mechanisms to find that threshold reliability in this case is met.