R. v. Rockey, [1996] 3 S.C.R. 829

Shaun Edward Rockey Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Rockey

File No.: 24784.

1996: June 13; 1996: November 21.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law -- Evidence -- Hearsay -- Exceptions -- Evidence of children -- Accused charged with sexual assault of two-and-a-half-year-old child -- Child five years old at time of trial -- Crown not calling child as witness but instead tendering out-of-court statements he had made to others -- Whether trial judge erred in admitting hearsay statements without express inquiry into their necessity -- Whether trial judge erred in admitting certain out-of-court statements without a voir dire -- Whether trial judge erred in failing to charge jury on which statements it could use for truth of their contents and which went to credibility only -- Whether verdict would necessarily have been the same -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(b)(iii).

The accused was charged with sexual assault of R, a two-and-a-half-year-old child. The accused was a friend of R’s father, who on the evening in question asked him to babysit while he ran some errands. R was left alone with the accused for two hours. In the following days, R complained that his bum was sore. Two days later he told his mother that the accused had hurt his bum and "put his peter in [his] bum". The child was seen by a pediatrician who confirmed injury to the anus consistent with the insertion of a blunt object. In the subsequent months, R's behaviour changed. He was no longer happy and outgoing. He exhibited fear of social encounters, particularly with men. He engaged in inappropriate sexual behaviour with other children. On a number of occasions, he made statements to various people about the incident with the accused. The matter came on for trial some years later, when R was five years old. The Crown did not call the child, but instead tendered seven statements he had made about the incident, arguing that while hearsay, they were admissible as necessary and reasonably reliable following this Court's decision in Khan. On the initial voir dire on the admissibility of these statements, the trial judge ruled that two would be admitted and rejected the other five. On a second voir dire, defence counsel argued that in view of certain inconsistent statements, referring to the father as having been present at the incident, all the statements should be excluded. The trial judge rejected that argument but accepted defence counsel's alternative argument that R's statements bearing on his father's presence or absence should be admitted. As the trial proceeded, a number of statements attributed to R, including some never subjected to a voir dire, were admitted into evidence without objection and without any further voir dires or rulings. The accused did not testify or present evidence of alibi. In his instructions to the jury at the conclusion of the trial, the trial judge referred to the statements globally as having been introduced as an exception to the hearsay rule. The accused was convicted. The Court of Appeal, in a majority decision, upheld the conviction.

Held: The appeal should be dismissed.

Per Lamer C.J. and La Forest, L’Heureux-Dubé, Sopinka and Gonthier JJ.: The question of necessity on which the trial judge erred in failing to make findings was a preliminary determination of mixed law and fact relating to the admissibility of crucial evidence. While findings on those preliminary matters would have constituted mixed questions of law and fact, failure to make them was an error of law. Where that occurs, s. 686(1)(b)(iii) of the Criminal Code requires the court to trace the effect of the error through the process of the trial and to determine its effect on the ultimate verdict. In this case, the trial judge was required to address two issues preliminary to a finding of necessity: (a) testimonial competence, and, if competent, (b) potential trauma to the child should he testify. With respect to (a), an evaluation of the evidence could lead to different conclusions. In any event, some trial judges might have considered speaking to the child under child-friendly circumstances. With respect to (b), however, in light of the uncontradicted evidence of the Crown’s expert witness, a trial judge would inevitably have concluded that the child would be traumatized by actually being called as a witness. It follows that the element of necessity is made out in law and the evidence would inevitably have been admitted had the trial judge not erred. Accordingly, the verdict would necessarily have been the same. The admission of certain additional statements did not occasion any substantial wrong or miscarriage of justice. The Crown has discharged its obligation under s. 686(1)(b)(iii) of the Code.

Per Cory, McLachlin, Iacobucci and Major JJ.: A trial judge on an application to admit hearsay evidence pursuant to Khan should formally consider and rule on whether the requirements of necessity and reliability are met. Where a trial judge neglects to make a finding which is essential to determining the admissibility of a crucial piece of evidence, this may amount to an error of law which necessitates the application of s. 686(1)(b)(iii) of the Criminal Code. The majority of the Court of Appeal did not err here in concluding that the trial judge would inevitably have admitted the hearsay evidence had he properly considered and ruled upon its admissibility. This Court ruled in Khan that a child's out-of-court statement about events at issue in a trial may be received notwithstanding that it is hearsay, provided that the reception of the statement is made necessary by the unavailability of the child's direct evidence on the stand and provided that the out-of-court statement is reasonably reliable. Reliability was conceded and is not in issue here. Necessity, on the Khan test, may be established if the child is incompetent to testify, unable to testify, unavailable to testify, or if the trial judge is satisfied, based on psychological assessments, that testimony in court might be traumatic for the child or harm the child. A reasonable trial judge would inevitably have found the requirement of necessity to be met in this case. It is unrealistic to conclude that R could have communicated his evidence in any useful sense. Moreover, even if R possessed the ability to communicate his evidence under s. 16(1) (b) of the Canada Evidence Act, the expert evidence established clearly that he did not understand what it meant to promise to tell the truth, and so he could not meet the requirement of s. 16(3). The evidence also supports a finding of necessity on the grounds of trauma to the child.

With respect to the admission of out-of-court statements that were never the subject of a formal voir dire, these statements, which pertained to the presence or absence of the father at the incident, were admitted at the insistence of the defence and were obviously not intended to be used as evidence of the truth of their contents, but were admitted to provide a ground for arguing that R had been inconsistent regarding his father’s presence or absence. On this view, there was in fact a voir dire and a ruling on the admissibility of the subsequent statements.

In his charge to the jury the trial judge did not differentiate between the two statements ruled admissible at the first voir dire, which were admitted for the truth of their contents, and the other statements, which were admitted on the issue of consistency. Assuming that the trial judge’s failure to instruct the jury on the different purposes for which it could use the different statements constitutes error, in the circumstances of this case no reasonable jury receiving the limiting instruction would have arrived at a different conclusion. The additional statements objected to added no new information capable of strengthening the statements tendered for their truth. Further, any effect the absence of the direction might possibly have had pales to insignificance against the backdrop of the strength of the case against the accused. No reasonable jury, properly instructed, would have entered a verdict of acquittal.

Cases Cited

By McLachlin J.

Referred to: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; Khan v. College of Physicians & Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 76 C.C.C. (3d) 10; R. v. Farley (1995), 1995 CanLII 3501 (ON CA), 99 C.C.C. (3d) 76; R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C., 1985, c. C-5, s. 16(1)(b) [rep. & sub. c. 19 (3rd Supp.), s. 18], (3) [idem].

Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(b)(iii).

APPEAL from a judgment of the Ontario Court of Appeal (1995), 1995 CanLII 3503 (ON CA), 23 O.R. (3d) 641, 99 C.C.C. (3d) 31, 82 O.A.C. 1, 42 C.R. (4th) 186, dismissing the accused’s appeal from his conviction on a charge of sexual assault causing bodily harm. Appeal dismissed.

D. Fletcher Dawson, for the appellant.

M. David Lepofsky, for the respondent.

The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Sopinka and Gonthier JJ. was delivered by

1 Sopinka J. -- I have had the advantage of reading the reasons of my colleague Justice McLachlin but while I reach the same result I disagree with her application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, with respect to the failure of the trial judge to make findings on the question of necessity.

1 The matters in respect of which the trial judge erred in failing to make findings were a preliminary determination of mixed law and fact relating to the admissibility of crucial evidence. Evidence was led on the voir dire on which findings were required to be made. While findings on those preliminary matters would have constituted mixed questions of law and fact, failure to make them was an error of law. Where that occurs, s. 686(1)(b)(iii) requires the court to trace the effect of the error through the process of the trial and to determine its effect on the ultimate verdict. If the preliminary matter is purely a question of law which the trial judge failed to decide, the Court of Appeal decides what was the right conclusion in law. If that conclusion leads to the admissibility of evidence which was in fact admitted, then the error had no effect on the verdict. The appellate court will not entertain an argument that different judges might decide differently. There is only one answer which is that given by the appellate court.

1 On the other hand, if the preliminary matter is one of fact or mixed law and fact, the decision is not necessarily inevitable. In our system where there is a dispute on matters of fact, the general rule is that the appellant is entitled to a decision from a trial judge. In such circumstances, it is wrong for the appellate court to simply decide the matter. The process of reasoning is to ask whether the issue of fact would inevitably have been decided in favour of admissibility. If the answer is in the affirmative, then the error had no effect. If the answer is in the negative, then it might reasonably have affected the verdict because the evidence might have been excluded. This is the way in which both the majority and Doherty J.A. dissenting dealt with the issue in the Court of Appeal although they differed in the result.

1 In this case, the trial judge was required to address two issues preliminary to a finding of necessity:

(a)testimonial competence, and, if competent,

(b)potential trauma to the child should he testify.

With respect to (a), as demonstrated by Doherty J.A. dissenting in the Court of Appeal, an evaluation of the evidence could lead to different conclusions. As expressed by him, “I cannot say that a reasonable trial judge would necessarily have found Ryan to be incompetent to give evidence” ((1995), 1995 CanLII 3503 (ON CA), 23 O.R. (3d) 641, at p. 667). Apart from the fact that different conclusions could be drawn from the evidence, some trial judges might have considered speaking to the child under child-friendly circumstances. The trial judge did not even consider this possibility because of the fact that he simply acted on the assumption that the child would not be called by the Crown. I would not conclude, therefore, that but for the failure of the trial judge to make a finding in respect of testimonial competence the verdict would necessarily have been the same.

1 With respect to (b), I am of the view that, in light of the uncontradicted evidence of Dr. Sas, a trial judge would inevitably have concluded that the child would be traumatized by actually being called as a witness. It follows that, in light of this conclusion, the element of necessity is made out in law and the evidence would inevitably have been admitted had the trial judge not erred. Accordingly, the verdict would therefore necessarily have been the same.

1 In respect to the admission of certain additional statements, I am satisfied for the reasons of the majority of the Court of Appeal and those of my colleague that the admission of these statements did not occasion any substantial wrong or miscarriage of justice. The Crown has discharged its obligation under s. 686(1)(b)(iii) of the Criminal Code.

1 I would dismiss the appeal.

The reasons of Cory, McLachlin, Iacobucci and Major JJ. were delivered by

1 McLachlin J. -- The appellant, Shaun Edward Rockey, was charged and convicted of sexual assault of Ryan, a child of two and one-half years. The appellant was a friend of Ryan's father. On the evening in question, the father asked the appellant to babysit while he ran some errands. He left Ryan alone with the appellant from 8:00 to 10:00 p.m. In the following days, Ryan complained that his bum was sore. Two days later he told his mother that Shaun had hurt his bum and "put his peter in [his] bum". The child was seen by a pediatrician who confirmed injury to the anus consistent with the insertion of a blunt object. In the subsequent months, Ryan's behaviour changed. He was no longer happy and outgoing. He exhibited fear of social encounters, particularly with men. And he engaged in inappropriate sexual behaviour with other children. On a number of occasions, he made statements to various people about the incident with Shaun.

1 The appellant was charged and the matter came on for trial some years later, when Ryan was five years old. It was a difficult trial. The Crown did not call the child. Instead it tendered seven statements Ryan had made about the incident, arguing that while hearsay, they were admissible as necessary and reasonably reliable following this Court's decision in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531.

1 On the initial hearing on the admissibility of these statements (the first voir dire), the trial judge ruled that two would be admitted and rejected the other five. On a second voir dire, defence counsel argued that in view of certain inconsistent statements, referring to the father as having been present at the incident, all the statements should be excluded. The trial judge rejected that argument but accepted defence counsel's alternative argument that Ryan's statements bearing on his father's presence or absence should be admitted. As the trial proceeded, a number of statements attributed to Ryan, including some never subjected to a voir dire, were admitted into evidence without objection and without any further voir dires or rulings. The appellant did not testify or present evidence of alibi. In his instructions to the jury at the conclusion of the trial, the trial judge referred to the statements globally as having been introduced as an exception to the hearsay rule. The jury convicted the appellant of sexual assault.

1 The appellant appealed his conviction to the Ontario Court of Appeal. The Ontario Court of Appeal, Doherty J.A. dissenting, dismissed the appeal: (1995), 1995 CanLII 3503 (ON CA), 23 O.R. (3d) 641, 99 C.C.C. (3d) 31, 82 O.A.C. 1, 42 C.R. (4th) 186. The appellant appeals to this Court as of right.

The Issues:

1 The appellant argues that the trial judge erred in three respects:

(1) in admitting the hearsay statements without an express inquiry into or ruling on the necessity of relying on Ryan's statements as opposed to calling Ryan as a live witness;

(2) in admitting numerous out-of-court statements, some without a voir dire; and

(3) in failing to charge the jury on which statements it could use for the truth of their contents and which went to credibility only.

1 If error on one or more of these matters is found, the further issue arises of whether, applying s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, it can be concluded that a reasonable jury in the absence of error would necessarily have convicted the appellant.

Decision of the Ontario Court of Appeal

1 The majority of the Court of Appeal held that the trial judge erred in not formally considering and ruling on necessity in deciding whether the hearsay statements of the child were admissible. However, it held that this made no difference since had he done so, he would inevitably have ruled that necessity was established. Moreover, even if the child had been called as a witness, the outcome of the trial would not have been affected, in the view of the majority. As for the admission of numerous other statements, the majority held that this was harmless error, since the statements were admitted not for the truth of their contents, but to provide a full context within which the jury could weigh the significance of the statements that his father had been present at the incident. The majority of the Court of Appeal ruled that the charge was adequate, even though the trial judge failed to tell the jury that it should not use the statements admitted without a voir dire as proof of the truth of their contents.

1 Doherty J.A. dissented. He did not find that the hearsay statements were inadmissible for the truth of their contents; however, he argued that they would not necessarily have been admitted had the trial judge followed the correct procedure. He pointed out that had the additional statements tendered on the issue of credit been inadmissible, the trial judge's failure to tell the jury they could be used only for this purpose was, in his view, fatal. Accordingly, he would have allowed the appeal.

Discussion

1. Admissibility of the Hearsay Statements

1 The trial judge on the first voir dire referred to the case law requiring a finding of necessity and reliability before a hearsay statement may be admitted for the truth of its contents. However, in his written ruling finding two of the statements admissible, he stated:

I make the following comments on the assumption that Ryan will not testify. Thus, I am proceeding on the basis that at least some of the statements in issue are "reasonably necessary" and therefore meet the first part of the Khan test of admissibility.

The appellant argues that the use of the word "assumption" indicates that the trial judge was not ruling on necessity, but was rather deferring to the prosecution's decision not to call the child as a witness. He submits that the trial judge should have called the child and examined him to see whether he could give useful evidence without undue trauma, rather than simply assuming the child could not testify and that use of the hearsay statements was consequently necessary.

1 I accept the appellant's contention that a trial judge on an application to admit hearsay evidence pursuant to Khan should formally consider and rule on whether the requirements of necessity and reliability are met. Hearsay evidence is not admissible unless these requirements are present. It should not lightly be assumed that they are present, even where the statements are those of a young child. There is no presumption of necessity; it must always be considered on the circumstances of a particular case. The Crown must decide whether to call the child or not. In the event it decides not to call the child and to tender hearsay statements instead, the judge must determine whether the child could not have testified, making it necessary to call substitute evidence.

1 I agree with counsel for the appellant that where a trial judge neglects to make a finding which is essential to determining the admissibility of a crucial piece of evidence, this may amount to an error of law which necessitates the application of s. 686(1)(b)(iii) of the Criminal Code. Where the Court of Appeal cannot address the question left unanswered by the trial judge without weighing issues of fact, then s. 686(1)(b)(iii) seems to me to require the application of the “inevitability” standard: that is, would the issue of fact inevitably have been decided in a manner which would have led to the same conclusion that the trial judge reached, in this case, admission of the statements. This is the procedure the majority of the Court of Appeal followed in this case, finding that had the trial judge made the necessary inquiry, he would have inevitably admitted the evidence. Doherty J.A., in dissent, was not convinced of the inevitability of that conclusion.

1 This then is the issue: did the majority of the Court of Appeal err in concluding that the trial judge would inevitably have admitted the hearsay evidence had he properly considered and ruled upon its admissibility? In my view, the majority did not err in so concluding.

1 This Court ruled in Khan that a child's out-of-court statement about events at issue in a trial such as this may be received notwithstanding that it is hearsay, provided that the reception of the statement is made necessary by the unavailability of the child's direct evidence on the stand and provided that the out-of-court statement is reasonably reliable. Reliability is not in issue on this appeal and I consider it no further. Necessity is the issue. Necessity, on the Khan test, may be established if the child is incompetent to testify, unable to testify, unavailable to testify, or if the trial judge is satisfied, "based on psychological assessments that testimony in court might be traumatic for the child or harm the child ...": R. v. Khan, supra, at p. 546. While not argued in the present case, it may be that necessity can also be established where the child testifies, if the trial judge is satisfied that the admission of the out-of-court statement is reasonably necessary in order to put a full and frank account of the child's version of the relevant events before the jury: Khan v. College of Physicians & Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 76 C.C.C. (3d) 10 (Ont. C.A.), at p. 24.

1 The Crown called Dr. Louise Sas as a witness on the issue of necessity. She testified that Ryan did not understand the concepts of truth, lying and promising.

Q. Okay, you were starting into the area about the truth and...

A. Yeah. I ... again, I tried to play a little game there.

"Oh Ryan, do you know what the truth is? Do you know what a lie is?"

and he says,

"Oh yeah", and he says, "Well, once my mother said she wasn't going to call and she called".

And I said -- I was waiting.

"So what is that? Is that the truth or was that a lie?"

and he didn't know, so he couldn't really extrapolate as to whether that was true or not. I gave him an example and I just, you know,

"If I told you I was wearing a red dress, would I be lying?"

And he said,

"Well, you're wearing a black dress" -- because he knows his colours very well. But he didn't know that that was a lie. He could not articulate that that was lying, you know, or an untruth. I gave him several other examples and he couldn't make the abstract connection. He could recite the example, he could tell you something was not right, but he could not then say, if you say that, then you are lying. Okay, so he can't take it farther. He did not know, really, what a promise was. He could not articulate a promise to me at all. A promise is a promise is a promise, and he could not bring into it the context that is entailed in a promise. [Emphasis added.]

1 Dr. Sas also testified that not only would giving evidence be extremely traumatic for Ryan, but that he simply would not be able to give evidence in a room with the accused, lawyers and a judge.

Q. Now you've talked about his own ability, that you have come to an opinion about, based on an interview in an office which may not have had toys in it, but was smaller than this room. How could you contrast that with the possibility of him testifying in a court room such as this, with a judge and other people present?

THE COURT: And a jury.

Q. Yes.

A. I would not advise that in this case for this child.

Q. Why?

A. I feel that he would be traumatized. I think the fact of being in this court room, on the stand, would be traumatic enough that he wouldn't be able to give an account.

THE COURT: ... What effect do you think it would have on this boy by testifying? If you want to give me a gradation of trauma or ...

A. You're talking about a closed circuit t.v. -- television or come from the court room?

THE COURT: Well, do you want to start with the court room first, or do you feel that it just will not happen if it's in the court room?

A. It will not happen, I believe, if he has to be in the same room as the accused. I think it would be very traumatic for him to come into contact with Shaun, who he continues to feel is in a jail situation somewhere and that he is safe because this person is being held.

Q. All right, can we take it one step, then, what if there were a screen in place, would you be able to comment on that -- a screen that would prevent him from viewing the accused?

A. Well, what the screen does, in a sense ... you're right, it provides a barrier for the child so he wouldn't see the accused directly, however, I know both from the literature, that children do better in smaller rooms. There's some literature to support the use of closed circuit t.v. and you're more likely to elicit a full account in a smaller room with younger children in particular, and that for this child, I think this large room is so formal, it would be very frightening for him.

Q. ... In your opinion, would he be able to give a meaningful account of what happened if he were in a room with a camera that was taking his picture and transmitting that into the court room?

A. It would be ... I believe he would be able to say pretty much the same as what he said to me today, if he was in a room separate from the court and asked questions one more time. There's no reason to believe that he couldn't again say what he said today, but would that be enough, given what I told you he was able to say?

THE COURT: Would he be able to meaningfully respond to cross-examination by a person as kind as Mr. Bentley?

A. I don't have ... I don't know what you would ask him, so I can't answer, you know. Do you know what I mean? Like, I don't know if he were asked questions about ... well when did it happen, or at what time or where were you, what room ... I don't think he could provide any of that. He has not been able to in questioning, so the fact that he would be in a small room with a closed circuit t.v. provision, to me, wouldn't make a difference in that area; but how much information he could give you about the incident ...

Q. You don't think that that would affect it?

A. No I don't think that will affect how much you will get. I think what we're getting is the most that we're going to get from this child, given his developmental level and the fact that it's two years now. He gave us almost as much as he could then and I don't think we're to expect more now.

1 Dr. Sas's evidence was uncontradicted. It established beyond doubt that calling this already traumatized child to the courtroom to testify would inflict further trauma upon him. Even to call him for examination on a voir dire would be cruel. Having listened to Dr. Sas, it likely was apparent to everyone in the courtroom that Ryan could not and should not be subjected to the ordeal of being questioned by the judge or lawyers. This much we know: everyone simply took it for granted that he would not take the stand. This explains the trial judge's omission to make a formal ruling on necessity and the absence of objection by either party to that omission. The trial and all its participants proceeded on the common understanding that necessity had been manifestly established.

1 Dr. Sas's evidence suggests three grounds for a conclusion of necessity: testimonial incompetence; potential trauma to the child; and inability to present meaningful evidence.

1 The first ground is that Ryan lacked the testimonial capacity required of a witness. Testimonial incompetence can render it necessary to receive the out-of-court statement of a child witness: R. v. Khan. Ryan was clearly not competent to testify under oath. He could only have testified upon promising to tell the truth pursuant to s. 16(3) of the Canada Evidence Act, R.S.C., 1985, c. C-5:

16. ...

(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may testify on promising to tell the truth.

Two requirements must be met to establish testimonial competence under s. 16(3): the ability to communicate the evidence and the ability to promise to tell the truth: R. v. Farley (1995), 1995 CanLII 3501 (ON CA), 99 C.C.C. (3d) 76 (Ont. C.A.). The phrase to “communicate the evidence” in s. 16(1)(b) indicates more than mere verbal ability. In order to establish ability to communicate, “[i]t is necessary to explore in a general way whether the witness is capable of perceiving events, remembering events and communicating events to the court”. R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 236.

1 Ryan’s ability to communicate his evidence in a courtroom setting was limited. Dr. Sas stated:

... I believe he would be able to say pretty much the same as what he said to me today, if he was in a room separate from the court and asked questions one more time. There’s no reason to believe that he couldn’t again say what he said today....

At the same time, Dr. Sas testified that Ryan could only give the most basic information of what happened, without detail. Even if he were to be walked through the process, he lacked the capacity to understand what goes on in court. Cross-examined about videotaping Ryan's evidence or giving it in a small room via closed circuit television, Dr. Sas initially supposed that it could be tried, but clarified that the only information the child could provide would be "this happened to me, it hurt, and he did it". His sense of time was very poor, and he would be able to relate only the bare bones of the incident under very direct questioning. Crown counsel would likely have to be under a table when talking to Ryan, at least part of the time. Dr. Sas also testified that Ryan was much less comfortable with men than women. As for cross-examination, Dr. Sas was very clear that Ryan would be incapable of meaningful response: "if he were asked questions about .... well when did it happen, or at what time or where were you, what room ... I don't think he could provide any of that." In the face of this evidence, it is unrealistic to conclude that Ryan could have communicated his evidence in any useful sense either in the courtroom or in a smaller room via closed circuit television.

1 It may be, as Doherty J.A. concluded, that despite these limitations Ryan possessed the ability to communicate his evidence under s. 16(1)(b) of the Canada Evidence Act. Logistical difficulties are generally not a sufficient reason to substitute hearsay evidence for a witness’s testimony. However, even if this requirement were met, the case for Ryan testifying would founder on the requirement of s. 16(3), the ability to promise to tell the truth. Dr. Sas's evidence was unequivocal: Ryan did not understand what it meant to promise to tell the truth. I agree with Doherty J.A. in dissent that it is not necessary that the witness be able to define the word "promise" in some technical sense; what is required is that the witness understand the obligation to tell the truth in giving his or her evidence. I respectfully part company from Doherty J.A.’s conclusion, however, that it cannot be said that “a reasonable trial judge would necessarily have found Ryan to be incompetent to give evidence” (p. 667 O.R.). On this point, I share the view of the majority of the Court of Appeal. Ryan, as noted above, did not understand the concepts of truth or lying. Nor could he articulate a promise. "A promise is a promise is a promise, and he could not bring into it the context that is entailed in a promise." The only inference that can be drawn from this evidence is that while Ryan understood the difference between what is “so” and "not so", he had no conception of any moral obligation to say what is "right" or "so" in giving evidence or otherwise. In these circumstances, no judge could reasonably have concluded that Ryan was able to promise to tell the truth.

1 The evidence also supports a finding of necessity on the grounds of trauma to the child. The argument for the appellant on trauma suggested that only the most severe trauma could justify a conclusion of necessity. I respectfully disagree. Mere discomfort is insufficient to establish necessity. But where there is evidence, as here, that an already traumatized child might be further traumatized by being questioned by strange men in a strange situation, that suffices. The Court is not required to wait for proof of actual harm to the child.

1 I conclude that a reasonable trial judge would inevitably have found the requirement of necessity to be met. Reliability having been conceded, it follows that the evidence would inevitably have been admitted and that the requirements of s. 686(1)(b)(iii) of the Criminal Code are met.

2. Admission of Numerous Out-of-Court Statements

1 The admission of Ryan's out-of-court statements was attacked on two grounds. The first ground of attack was the absence of necessity, considered above. The second ground is that statements were admitted which were never the subject of a voir dire. It was error, it is submitted, for successive Crown witnesses to be permitted to testify that Ryan told them the same story, without the admissibility of these additional statements having been considered on a voir dire.

1 To appreciate the reason for the admission of the additional statements and their significance it is necessary to consider their place in the context of the trial and how it unfolded. It behoves appellate courts to remind themselves that a trial is a dynamic process. Particular events and rulings are best judged, not in isolation, but in connection to the events that precede and follow them. The reception of the additional statements in this case provides a classic illustration of the need to consider the dynamics of the trial.

1 Viewed in the abstract, the admission of out-of-court statements without a voir dire appears abnormal, if not erroneous. A different perspective emerges, however, when the statements are considered in the context of how the trial developed. At the outset of the trial, the trial judge ruled two out-of-court statements admissible. It then came to the attention of the defence that Ryan had given certain other statements containing a collateral contradiction. In two statements in the course of play therapy, Ryan had said that his father had been present when Shaun assaulted him. The defence requested another voir dire. It asked the trial judge to exclude all the statements, including the two that had been ruled admissible. The trial judge refused, but acceded to the defence's alternative request that all the statements pertaining to the presence or absence of the father at the incident be admitted. These statements, admitted at the insistence of the defence, were obviously not intended to be used as evidence of the truth of their contents. Rather, they were admitted to provide a ground for arguing that Ryan had been inconsistent.

1 Once the issue of Ryan's consistency had been raised by admitting the statements referring to his father's presence, it became necessary in fairness and logic to admit all the statements Ryan had made which averted to the presence of his father and which did not avert to the presence of his father. The admission of these statements was required so that the jury could properly judge the degree of the inconsistency on that point and its effect on the credibility of Ryan. The trial judge's ruling on the second voir dire may be interpreted as doing this: "all the statements that were made to the various witnesses can go in in relation to the father being there or father not being there".

1 On this view, there was in fact a voir dire and a ruling on the admissibility of the subsequent statements. Had the defence not insisted on the admission of the two statements referring to the father's presence, the only statements that would have been admitted were the two ruled admissible at the first voir dire. The defence having requested the admission of these additional statements as evidence of inconsistency, it became necessary to admit all statements made on that issue. This is what the trial judge did. That all parties viewed this as what had occurred and as being fair is attested to by the fact no one objected to admission of the statements that were subsequently tendered.

1 Viewed in the perspective of the trial and the trial judge's ruling on the second voir dire, it is clear that the admission of the subsequent statements without separate voir dires was not in error. The subsequent statements were not tendered for the truth of their contents, but on the issue of inconsistency.

3. The Charge to the Jury

1 The two statements ruled admissible at the first voir dire, one to his mother and the other to Dr. Sas, were admitted for the truth of their contents. The other statements were admitted on the issue of consistency. The trial judge, however, did not differentiate between the two classes of statements and the different uses to which the jury could put them.

1 He introduced his instruction on the out-of-court statements as follows:

In this case, as has been indicated by both counsel, this is rather an unusual case in that the child did not testify. In certain circumstances, the Crown is permitted to offer a child's evidence through the mouths of others. In most cases involving adults, particularly, a person is not allowed to say in court what he heard another person saying, because that is what you have all heard throughout this trial known as hearsay. However, as I have indicated in law now, under certain circumstances, as in this case, I have ruled that the Crown is permitted to adduce evidence through the mouths of other persons about what this child has said. When considering that evidence -- the evidence of the lad -- you must have certain considerations and I must caution you with respect to that type of evidence. [Emphasis added.]

In cautioning the jury about Ryan's statements, he said:

The repetition of the statements. I believe Linda Aitken indicated that the child was entirely consistent in his disclosure to her -- you should take that into consideration. You must also, of course, take into consideration at one point, October of 1991, when his mother was walking with him in the park, he at one point said that his father was there and then later on, apparently again without any leading or anything else, he said that his father was not present at the time. [Emphasis added.]

The trial judge made several other references to the out-of-court statements in reviewing the evidence, including statements which had been tendered only on the issue of consistency. He suggested that the latter were relevant to credit:

You should take into consideration the manner in which the statements came forward. Are they credible? Is it a logical manner in which they came forward? The repetition of the statements. I believe Linda Aitken indicated that the child was entirely consistent in his disclosure to her -- you should take that into consideration.

At no time did the trial judge tell the jury that these statements were not to be used as evidence of the truth of their contents, but only on the issue of whether they could rely on Ryan's contention that Shaun had assaulted him. At the same time, he told them the additional statements must be considered on the issue of Ryan's consistency and never suggested that the repetition of the statements could be viewed by the jury as making them more likely to be true. Neither the Crown nor the defence objected to the judge's charge.

1 It has long been accepted that trial judges charging juries on out-of-court statements must instruct them on how they may use the statements -- whether as evidence of the truth of their contents or for some other purpose, such as credit. In this case the trial judge did not do this. It may be that it was apparent to everyone in the courtroom that the subsequent statements were tendered on the issue of consistency, as the majority of the Court of Appeal suggests. Nevertheless, the usual rule requires this to be stated expressly.

1 The Crown submits that the usual rule was inapplicable in this case. To tell the jury that some of the statements could be used for the truth of their contents and others only on the issue of credit would only have served to confuse them, the Crown submits. The instruction the defence now belatedly seeks that some of the statements could be considered for their truth while other statements similar in virtually every respect could not, would result in "analytical chaos", the Crown suggests, and serve no purpose. The instruction has a place, the Crown submits, where the issue is whether the witness has fabricated or concocted evidence; in such a case it is useful and necessary to point out to the jury that out-of-court the witness said something different and to instruct them that the out-of-court statements can be considered only on the issue of whether the witness was speaking truthfully. But here, where the "witness" is, on the expert testimony, incapable of deliberate fabrication, and where all the statements are out-of-court statements, the traditional differentiation makes little sense. To put it another way, warning the jury about the different uses to which it may put in-court evidence on oath and out-of-court statements tendered only for credibility may make good sense where concoction is at issue and some statements are sworn and others not; it makes little or no sense where all the statements are out-of-court statements of equal value, admitted on the basis of their pre-determined reliability. In such cases, the Crown submits, the best course is to leave all of the statements to the jury for the truth of their contents.

1 It may be that in some future case this Court will be required to consider whether the traditional warnings regarding statements apply in all respects where all the statements are tendered on the basis of the principles enunciated in R. v. Khan. In this case, however, I find it unnecessary to decide this issue. Assuming that the failure of the trial judge to instruct the jury on the different purposes for which it could use the different statements constitutes error, I am satisfied that in the circumstances of the case at bar, no reasonable jury receiving the limiting instruction would have arrived at a different conclusion. The inconsistencies that the defence relied upon were repeatedly drawn to the attention of the jury. The jury was clearly told that it must consider the inconsistencies in deciding whether to accept Ryan's allegations. The additional statements objected to added no new information capable of strengthening the statements tendered for their truth. The objection to the charge reduces to the suggestion that the jury might have inferred from the subsequent consistent statements that the initial statements were more likely to be true. But this is precisely the inference which a jury is permitted to draw from evidence tendered on credit. In the result, I cannot see how the limiting instruction the defence now says should have been given could have led to acquittal.

1 I add this. Any effect the absence of the direction might possibly have had pales to insignificance against the backdrop of the strength of the case against the appellant. With the exception of the two statements in play therapy briefly referring to the presence of his father, the child's statements to many individuals from two days after the alleged event to the date of trial, covering a period of two and one-half years, were entirely consistent. The medical examination proved beyond doubt the injury to the child. The child's marked behavioural changes amply supported the violent sexual nature of the assault as well as the child's assertion that it had been perpetrated by a male. No plausible explanation supporting a perpetrator other than the appellant was suggested. Indeed, the appellant's avoidance of the child's father and cancellation of a planned fishing trip after the injury to the child support the child's statement to his mother that the person who had done this to him was Shaun.

1 I conclude that any error in the trial judge's instructions to the jury was inconsequential. No reasonable jury, properly instructed, would have entered a verdict of acquittal.

Conclusion

1 I would dismiss the appeal and affirm the conviction.

Appeal dismissed.

Solicitors for the appellant: Cohen Highley Vogel & Dawson, London, Ontario.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.