Non-Publication Order

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1)

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 07 24 COURT FILE No.: 20-308 Windsor, Ontario

BETWEEN:

HIS MAJESTY THE KING

— AND —

D.W.

Before: Justice Shannon L. Pollock Application Heard on: June 29, 2023 Reasons for Judgment Released on: July 24, 2023

Counsel: Siobhan Dundon, for the Applicant Ben Strickland, for the Respondent

DECISION ON APPLICATION TO ADMIT OUT-OF-COURT HEARSAY STATEMENTS

Pollock J.:

Introduction

[1] This is a decision on a mid-trial application by the Crown seeking to admit four (4) hearsay statements as evidence on this trial. The respondent faces two (2) counts each of sexual assault, sexual interference and sexual exploitation in relation to the now seven (7) and eight (8) year old children of one of his relatives. The children, sisters, were four (4) and five (5) years old at the time of the allegations.

[2] At the commencement of each of their evidence, the Crown sought to admit their video-taped statements to police as evidence pursuant to section 715.1. A voir dire was held in relation to each of those Applications. In the case of one (1) child, S.B., she did not remember the incident or speaking to the police. As it relates to the other child, H.B., she was not even able to identify herself on the video and did not know why she was testifying in court. As a result, the Crown has brought Applications to admit their out-of-court statements to the police (the video statements) as well as to their parents.

[3] The Crown seeks to have admitted the following statements: a) as it relates to the child, S.B., her video-taped statement to police given on January 27, 2020 in relation to incidents alleged to have occurred between December 14, 2019 and January 5, 2020; b) as it relates to the child, H.B., her video-taped statement to police given on January 13, 2020 in relation to an incident alleged to have occurred on January 12, 2020; and c) H.B.’s utterances of January 12, 2020 made to both of her parents, C.E. and J.B.

[4] Due to the lack of memory of each of the children, they are unable to give any meaningful evidence in relation to the allegations.

The Statements

Out-of-Court Statement by the Child, H.B., to the Mother

[5] On the morning of January 12, 2020, the respondent was playing in the basement with the children while the children’s parents were on the main level of the home. The respondent was to leave at approximately 9:00 a.m. but did not leave the home until some time later. Approximately five (5) minutes after the respondent departed the home, H.B. came upstairs and made a disclosure to her parents.

[6] The evidence of the parents is not the same about the words the child used. The mother’s evidence was that H.B. stated that while playing hide-and-seek Monty (the name used by the children to refer to the respondent) peed on her. She pointed to her lower abdomen as a reference for where she had been peed on. The mother testified that the father asked her to repeat herself and that the child said that the respondent told her that “milk comes from here” and pointed to her vagina.

[7] The mother testified that the parents asked the child to show them where this had happened and that the child took them to an area in the basement which was a cubby under the stairs. The mother stated that the child again motioned to her lower abdomen and indicated that was where he did it. It was the mother’s evidence that the waistline of the child’s pajama bottoms appeared wet.

[8] In cross-examination on the Application, the mother also testified that the child had said that the respondent touched her in her chest area.

Out-of-Court Statement by the Child, H.B., to the Father

[9] The child’s father testified that, on the morning of January 12, 2020, he was doing laundry by the front door on the main level while his daughters were in the basement playing hide-and-seek with the respondent. He stated that the respondent left in a rush to go to work.

[10] Approximately five (5) minutes after the respondent left the home, the child, H.B., came up to him and said that there was milk in her belly button. He testified that the tone of her voice was not normal. The father stated that he asked the child to repeat herself and that she said the same thing. His evidence was that the mother heard what had been said and came over to where he and the child were talking.

[11] The father stated that the mother called 911 and that the three (3) of them went to the basement to ask the child where it happened. The father testified that the child’s shirt was damp near her belly button when he felt it.

[12] The father indicated that the child said something about her vagina but he could not remember what it was. He was able to refresh his memory from his statement and stated that the child had said that the respondent peed on her vagina. He agreed in cross-examination that he had not used the words “belly button” with the police. The father’s evidence was that he had difficulty with his memory of the incident but that the child said she had milk in her belly button and pee on her vagina.

[13] The father further agreed in cross-examination that he was asked by the police if the child was “wet at all” and that his response was in the negative. He testified in cross-examination that the child’s words were “Monty (the respondent) peed on my vagina.” and “There’s milk in my belly button.” but that what he told the police was that the child had said it was “like milk”. The father denied that the child stated: “This is where milk comes from.”

[14] The parents did not ask any follow-up questions of the child. They did not ask the child if she was being truthful. It was the mother’s evidence that she could tell that the child was being truthful by the way she spoke the words and by her body language. She also indicated that the child had never made a disclosure like this before.

H.B.’s Video Statement to Police

[15] The following day, H.B., was interviewed on video by the police. There was little of value to the investigation stated by the child during this interview. The child told the officer that “Monty” put a squishy on her while they were playing hide-and-seek. When questioned further by the officer, she said that the squishy came from the laundry room and the back room, that it was green and later that it was yellow, and that it was like a rabbit. When asked, H.B. stated that Monty put the squishy thing right on her boobs. Further descriptors were that it was warm and like ice cream, although this portion was in response to a direct question from the officer comparing it to ice cream. The child was very distracted and exited the room several times. This behaviour was as expected for a child of her age.

S.B.’s Statement to Police

[16] The child, S.B., was interviewed on video by police on January 27, 2020. In that interview, the officer reviewed what it means to tell the truth versus telling a lie, confirming that the child understood the difference. S.B. told the officer about the respondent coming over and playing hide-and-go-seek in the dark. The child discussed hiding with the respondent. She disclosed to the officer that the respondent touched her vagina when they were hiding. This was said in response to the officer asking what the child had told another person (the child protection worker). She indicated that he did it ten (10) times, twenty (20) years ago. The only detail she provided was that he touched it “inside”. It is not clear if this meant on the inside of clothing or on the inside of her vagina.

Other Evidence

[17] Almost immediately after H.B. made her disclosure, her mother contacted the authorities and took her to the hospital. A nurse for the Sexual Assault Treatment Centre swabbed the external genital area of H.B.. The swab was analyzed by the Centre of Forensic Sciences (the “CFS”) and a DNA warrant was executed on the respondent. Nicole Vachon, a forensic scientist in biology for the CFS prepared two (2) biology reports which concluded that there was a presence of semen suggested on the external genitalia swab of H.B. and that there was a DNA profile suitable for comparison. That DNA profile was determined to be male and likely from semen. It was compared to the DNA of the respondent and the respondent could not be excluded as the source. Ms. Vachon’s report indicates that: “The STR DNA results are estimated to be greater than one trillion times more likely if STR Profile 1 originates from (the respondent) than if it originates form an unknown person, unrelated to him.”.

[18] The child’s parents were present in the home at the time of the allegations. Their evidence confirms that the children were in the basement playing hide-and-seek with the respondent at the time that the allegation regarding H.B. arose.

[19] By way of an agreed statement in the form of a supplementary police report there is evidence before the court that a child protection agency worker had determined that the respondent had sexually assaulted the child, S.B., approximately five (5) times since December 14, 2019. The allegations in relation to S.B. have a date range of December 14 of 2019 to January 5 of 2020.

The Law

[20] Hearsay or “out-of-court statements” are presumptively inadmissible if being tendered for their truth. The onus is on the party seeking to introduce an out-of-court statement to establish its admissibility on a balance of probabilities. One exception to the hearsay rule is that of the principled approach which requires that, in order to be admissible, the hearsay must meet the requirements of necessity and reliability.

Necessity

[21] The first issue to be determined is whether the admission of the hearsay statement is necessary. Necessity for these purposes must be interpreted as “reasonably necessary.”: R. v. Khan, [1990] 2 SCR 531, at paragraph 29.

[22] The Supreme Court of Canada has said: “The unavailability of direct evidence may be self-evident in the case of very young children. But it is not confined to that situation. If the circumstances reveal that the child cannot, for whatever reason, give his or her evidence in a meaningful way, then the trial judge may conclude that it is self-evident, or evident from the proceedings, that out-of-court statements are “necessary”, if the court is to get the evidence and discover the truth of the matter.”: R. v. F. (W.J.), 1999 SCC 667, at paragraph 41

[23] This is a case where the Crown seeks the admission of multiple statements as it relates to the child, H.B. To that, I am guided by the words of the Ontario Court of Appeal in R. v. D. (G.N.): “In order to obtain a full and complete account of what is alleged to have happened to a very young child, the reception into evidence of several conversations the child had with adults may be reasonably necessary. Where a statement by the child to an adult contains material particulars, or provides important context in which the alleged acts took place, some repetition may be essential. Where a hearsay statement adds nothing which is relevant for consideration by a trier of fact, it will not satisfy the criterion of reasonable necessity and will not be admissible.”: R. v. D. (G.N.), 1993 ONCA 14712, at page 78

Reliability

[24] The second requirement is that the hearsay evidence must be reliable. At this stage, that of the admissibility voir dire, what is required is that there be a determination of threshold reliability. The decision of ultimate reliability is left to the trier of fact.

[25] 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): R. v. Bradshaw, 2017 SCC 35, at paragraph 27

[26] Where procedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement, substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy.: R. v. Bradshaw, 2017 SCC 35, at paragraph 40

[27] The court in Khelawon concluded that “Relevant factors should not be categorized in terms of threshold and ultimate reliability”. The court indicated that a more functional approach should be adopted – one which focuses on the particular dangers raised by the hearsay evidence and on those circumstances relied upon to overcome those dangers.: R. v. Khelawon, [2006] 2 S.C.R. 787, at paragraph 93

[28] To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement.: R. v. Bradshaw, 2017 SCC 35, at paragraph 30

[29] 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: R. v. Bradshaw, 2017 SCC 35, at paragraph 44

[30] Khan, a case involving a very young child’s statements to her mother about an alleged sexual assault by her doctor, is a case where the court determined that the reliability requirement was met as the circumstances in which the statement came about provided sufficient comfort in its truth and accuracy. In Khan, Justice McLachlin concluded that the statement should have been received by the court, finding that it was reliable as the child had no motive to lie, her statement emerged naturally and without prompting, the child would not have had knowledge of the acts alleged and it was corroborated by real evidence. In addition, the statement was made almost immediately after the event.

Application to the Case – Necessity

[31] The children are both unable to meaningfully provide evidence to the court about the allegations as neither of them can recall the incident. The prerequisites to relying on a section 715.1 application have not been met. As a result, it is necessary for the crown to rely on some form of hearsay statement in relation to both children.

[32] The statements to the parents clearly contain material particulars and provide important context to the allegation. The same is clearly evident as it relates to S.B.’s video statement to police. H.B.’s video statement requires further analysis.

[33] Most of the content of H.B.’s video statement is ambiguous. If one were to view it without any knowledge that it was obtained in relation to a sexual assault investigation it would be unclear what the child is talking about. The conversation about the respondent putting a squishy on her, without context, could mean any number of things including, as suggested by the defence, that the child is referring to the fruit snacks she is eating at the time. There is, however, a reference to Monty putting the squishy on her boobs.

[34] The reference to her breast area is a material particular. Further, while not clear on its own, so is the reference to Monty putting a squishy on her while playing hide-and-seek. While not substantial, this statement does add something of relevance for consideration. Further, the issues surrounding the ambiguities are related to reliability as opposed to the necessity of admitting this statement.

[35] I have determined that the necessity requirement has been met as it relates to all of the statements that the Crown seeks to introduce.

Application to the Case – Reliability

Utterances of H.B. to the Parents

[36] The utterances of the child, H.B., to her parents are one and the same. In other words, despite the Crown seeking to introduce utterances through both parents, the words spoken by the child to the parents were at the same time. This conversation was happening amongst the three (3) of them. The parents, however, attribute different phrases to the child.

[37] Despite the parents attributing different versions of the utterances to the child, they are consistent with respect to the child using the words “vagina” and “milk” and that she stated that she had been “peed on” by the respondent.

[38] There are some difficulties with the reliability of the father’s evidence as it relates to what occurred on the morning of the allegation and as to the accuracy of what the child stated. However, the mother was part of the same conversation and her evidence did not have the same difficulties. Further, there are certain key words that both parents attribute to the child.

[39] There is evidence corroborating the child’s statements. The parent’s corroboration as to opportunity does nothing to assist in my assessment about the truth of the child’s statements and assists very little in assessing its accuracy. That cannot be said of the CFS evidence. As it relates to the evidence of the forensic scientist, when we are dealing with a child (in this case one who was four (4) years old) with the presence of what is likely semen from the respondent on her external genitalia, it is difficult to imagine any further likely explanation other than the one provided by the child – that the respondent put it on her.

[40] The circumstances surrounding the utterances of H.B. to her parents on the morning of January 12, 2020, are strikingly similar to those in the case of Khan itself. There was no motive to lie, the words were uttered within minutes of the allegation, the child had never made any such statements before, the utterances were made spontaneously, the words spoken were those of a child without knowledge of male anatomy (“he “peed” on me”, “milk” comes out of here) and there is real evidence by way of the CFS report that corroborates the statements. In fact, the real evidence puts the words in context.

[41] While there are difficulties with the reliability of the father’s evidence, I am not being asked to consider it or admit it on its own. It is part of the same conversation involving the mother. Further, any problems with his recount of the child’s words relate to the issue of ultimate reliability and not to its threshold reliability.

[42] The utterances made by the child to her parents on the morning of January 12, 2020 will be admitted.

H.B.’s Video Statement to Police – Reliability

[43] As already outlined, there is not a great deal of information relevant to the matter provided by the child in this statement. However, what is stated is related to the disclosure the child made to her parents the day before just minutes after the alleged act. If I were considering this statement on its own, the ambiguities might be such that I could not come to the conclusion that the statement meets even threshold reliability. However, I cannot assess this statement in a vacuum without considering what the child stated to her parents the day before which I have already determined is admissible. This statement has to be considered in that context. The ambiguities may impact the ultimate reliability of this statement by the child, however, at this stage I am only assessing threshold reliability.

[44] When I assess the circumstances surrounding the statement of H.B. to police the next day, I can still consider the corroborating DNA evidence that was relevant to my assessment of the child’s statement to her parents. The statement is taken only one (1) day later. Further, the way the child’s comments to the officer about what the respondent did to her are disclosed to the officer are natural and not in response to any leading questions by the officer.

[45] In all of the circumstances, I conclude that the statement meets the test for substantive reliability and is admitted.

S.B.’s Video Statement to Police – Reliability

[46] S.B.’s statement to police was not obtained until over two (2) weeks after her sister’s disclosure and the last contact she had with the respondent. There is evidence before me that her statement to police is inconsistent with her statement to a child protection worker about the number of occasions on which she was sexually assaulted.

[47] While the child does indicate that she knows the difference between lying and being truthful, she is not asked to make any promise about her truthfulness or to confirm she was being truthful. S.B.’s statement is lacking in any detail. Her statement is in response to questions about what she told someone else about what had happened. It is vague and unclear. Although the statement is similar to that of her sister (that the respondent touched her vagina) it is certainly not strikingly similar.

[48] In these circumstances, I cannot find that there are adequate substitutes for testing the truth and accuracy (procedural reliability) of S.B.’s statement to police in January 27, 2020 nor are there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).

[49] The application to admit S.B.’s statement to police is dismissed.

Conclusion

[50] The crown has met its burden regarding necessity in relation to each of the statements. I have found that the child, H.B.’s, statements to her parents and to the police meet the test for threshold reliability and will be admitted.

[51] The statement of S.B. to police will not be admitted as it was not taken in circumstances that meet the test for procedural or substantive reliability.

Dated: July 24, 2023 Signed: Justice Shannon L. Pollock