R. v. F. (W.J.), 1999 CanLII 667 (SCC), [1999] 3 SCR 569

minicounsel

Her Majesty The Queen Appellant

W.J.F. Respondent

Indexed as: R. v. F. (W.J.)

File No.: 26854.

1999: May 19; 1999: October 15.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory,^* McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for saskatchewan

Evidence -- Hearsay -- Necessity and reliability exception -- Sexual assault of child -- Child making statements to relatives but not responding verbally to questions at trial -- No reason given for failure to testify -- Whether reason for failure to testify required for finding that out-of-court statements admissible as necessary and reliable.

The accused was charged with sexually assaulting a five-year-old girl. The complainant, who was six years and eight months old at trial, testified in a cleared courtroom behind a screen with a support person present. She did not answer when asked about the assaults and did not adopt a videotape of her extensive account given to the police. Crown counsel applied to have her out-of-court statements to relatives about the alleged assaults introduced into evidence for the truth of their contents as an exception to the hearsay rule, on the basis that the statements met the requirements of necessity and reliability. On a voir dire, the trial judge ruled that the statements were inadmissible because the Crown, since it had not presented evidence establishing why the child failed to testify, had failed to establish necessity. The Crown presented no further evidence, and the accused was acquitted. The majority of the Court of Appeal dismissed the Crown’s appeal. At issue here is whether the Crown could not establish necessity absent extrinsic evidence explaining why the child refused to testify.

Held (Lamer C.J. and Iacobucci and Major JJ. dissenting): The appeal should be allowed and a new trial ordered.

Per Gonthier, McLachlin, Bastarache and Binnie JJ.: The requirement of necessity may be established either on the basis of what has happened at trial or on the basis of evidence. Evidence as to the reason why the child fails to give evidence in court, while often useful, is not essential. What is required is that the trial judge be satisfied that the evidence is unavailable despite reasonable efforts to obtain it. Fear or disinclination, without more, do not constitute necessity. If the circumstances reveal that the child cannot, for whatever reason, give 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. An insistence on evidence to support necessity in every case cannot be reconciled with the values underlying the hearsay rule and the increasing sensitivity in society generally to the difficulties children face when called upon to testify. Here, the record disclosed inability to testify consistent with trauma and negated the suggestion that the child was unwilling to testify.

Per L’Heureux-Dubé J.: Although in complete agreement with the reasons of McLachlin J., the need for increased sensitivity to the difficulties that child witnesses face required emphasis. Separating the child witness from the alleged abuser does not erase the trauma of testifying. When a child witness is unable to respond in a meaningful way, sometimes what happened may make it so clear that the witness was truly unable to testify that necessity can be inferred absent evidence as to why the witness cannot testify. Expert testimony is neither a panacea nor a prerequisite to observing and understanding the traumatized child witness.

Per Lamer C.J. and Iacobucci and Major JJ. (dissenting): A finding of necessity for the admission of hearsay evidence requires an evidentiary foundation that is appropriate in the circumstances. If the trial judge is to satisfy him- or herself that the hearsay evidence is actually necessary, counsel attempting to introduce the evidence must make some reasonable attempt to establish such a foundation. Here, the Crown did not take even simple steps to determine if the witness could continue after a pause. The reason a witness has stopped talking has everything to do with present or future availability and ability to testify and must accordingly be subject to a specific determination based on an evidentiary foundation before the admission of hearsay evidence becomes reasonably necessary.

Cases Cited

By McLachlin J.

Considered: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; R. v. P. (J.), 1993 CanLII 161 (SCC), [1993] 1 S.C.R. 469, aff’g (1992), 1992 CanLII 2919 (QC CA), 13 C.R. (4th) 79, 74 C.C.C. (3d) 276; referred to: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043; R. v. C.N. (1997), 1997 CanLII 24615 (AB CJ), 195 A.R. 387; R. v. Bannerman (1966), 1966 CanLII 634 (MB CA), 48 C.R. 110, leave to appeal refused, [1966] S.C.R. vii; R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829.

By L’Heureux-Dubé J.

Referred to: R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475; R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419.

By Lamer C.J. (dissenting)

R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829; R. v. Aguilar (1992), 1992 CanLII 7727 (ON CA), 10 O.R. (3d) 266; R. v. P. (J.), 1993 CanLII 161 (SCC), [1993] 1 S.C.R. 469, aff’g (1992), 1992 CanLII 2919 (QC CA), 13 C.R. (4th) 79, 74 C.C.C. (3d) 276.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C., 1985, c. C-5, s. 16 [repl. c. 19 (3rd Supp.), s. 18; am. 1994, c. 44, s. 89].

Criminal Code, R.S.C., 1985, c. C-46, s. 715.1 [ad. c. 19 (3rd Supp.), s. 16; repl. 1997, c. 16, s. 7].

Authors Cited

American Psychological Association. Brief for Amicus Curiae in Maryland v. Craig, 497 U.S. 836 (1990), 1989 U.S. Briefs 478 (Lexis).

Bala, Nicholas. “Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System”, in Walter S. Tarnopolsky, Joyce Whitman and Monique Ouellette, eds., Discrimination in the Law and the Administration of Justice. Montreal: Thémis, 1993, 231.

Bala, Nicholas, and Martha Bailey. “Canada: Recognizing the Interests of Children” (1992-93), 31 U. Louisville J. Fam. L. 283.

Bulkley, Josephine, and Claire Sandt, eds. A Judicial Primer on Child Sexual Abuse. Washington, D.C.: ABA Center on Children and the Law, 1994.

Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children (“Badgley Report”). Ottawa: Minister of Supply and Services Canada, 1984.

Castel, Jacqueline. “The Use of Screens and Closed-Circuit Television in the Prosecution of Child Sexual Abuse Cases: Necessary Protection for Children Or a Violation of the Rights of the Accused?” (1992), 10 Can. J. Fam. L. 283.

Harvey, Wendy, and Paulah Edwards Dauns. Sexual Offences Against Children and the Criminal Process. Toronto: Butterworths, 1993.

Marchese, Claudia L. “Child Victims of Sexual Abuse: Balancing a Child’s Trauma Against the Defendant’s Confrontation Rights — Coy v. Iowa” (1990), 6 J. Contemp. Health L. & Pol’y 411.

McLeer, Susan V., et al. “Post-Traumatic Stress Disorder in Sexually Abused Children”, Journal of Child and Adolescent Psychiatry, XXVII (1988), 650-654.

Ontario. Law Reform Commission. Report on Child Witnesses. Toronto: The Commission, 1991.

Paciocco, David M. “The Evidence of Children: Testing the Rules Against What We Know” (1996), 21 Queen’s L.J. 345.

Roberts, Julian V. Sexual Assault Legislation in Canada, An Evaluation: An Analysis of National Statistics (Report No. 4). Ottawa: Department of Justice, 1990.

Saywitz, Karen. “Children in Court: Principles of Child Development for Judicial Application”, in Josephine Bulkley and Claire Sandt, eds., A Judicial Primer on Child Sexual Abuse. Washington, D.C.: ABA Center on Children and the Law, 1994, 15.

Spencer, John R., and Rhona H. Flin. The Evidence of Children: The Law and the Psychology. London: Blackstone Press, 1990.

Western Australia. Law Reform Commission. Discussion Paper. The Evidence of Children and Other Vulnerable Witnesses. Perth: The Commission, 1990.

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 5, 3rd ed. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1974.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1998), 1998 CanLII 12373 (SK CA), 165 D.L.R. (4th) 247, 128 C.C.C. (3d) 550, 18 C.R. (5th) 199, [1999] 3 W.W.R. 42, [1998] S.J. No. 604 (QL), dismissing an appeal from acquittal by Ebert Prov. Ct. J. Appeal allowed, Lamer C.J. and Iacobucci and Major JJ. dissenting.

Daryl Rayner, for the appellant.

David W. Andrews, for the respondent.

The reasons of Lamer C.J. and Iacobucci and Major JJ. were delivered by

1The Chief Justice (dissenting) – This case is about a child witness who stopped answering questions during an examination. The Crown asked the trial judge to conclude that the witness was necessarily unavailable to provide further evidence, thus allowing the admission of hearsay evidence in the form of the witness’s prior out-of-court statements to various relatives. The trial judge held that the Crown had failed to offer any evidence as to why the witness had stopped testifying and thus as to whether hearsay evidence was necessary. As a result, the trial judge refused to infer that hearsay evidence was now necessary. Justice McLachlin would overturn the holding of the trial judge. After a consideration of the difficult circumstances of this case, I find myself unable to agree with McLachlin J.’s conclusion.

2Admitting hearsay evidence is always a serious matter. In R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at p. 764, I highlighted the dangers inherent in hearsay evidence:

. . . the absence of an oath or solemn affirmation when the statement was made, the inability of the trier of fact to assess the demeanour and therefore the credibility of the declarant when the statement was made (as well as the trier’s inability to ensure that the witness actually said what is claimed), and the lack of contemporaneous cross-examination by the opponent.

While not all of these dangers apply to every type of hearsay evidence, their general presence underlines the importance to a fair justice system of trial judges’ treating hearsay evidence in a prudent fashion.

3Balanced against this, of course, is the reality that hearsay evidence may be the best or the only evidence going to some critical fact. This Court has adopted a modern, principled approach to hearsay evidence, recognizing that out-of-court statements may be admitted for the truth of their contents where their admission is reasonably necessary to the determination of a fact in issue and where the circumstances surrounding these statements tend to support their reliability. See R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, and R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915. This Court has also properly taken up its role in protecting the most vulnerable members of our society by recognizing the trauma that children who are victims of horrible crimes may face in appearing in court and by interpreting the Khan and Smith principles in an appropriately flexible fashion. See R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829, at para. 20.

4In interpreting these principles flexibly, however, we must not forget that the reasonable necessity criterion is a real requirement that serves as an important protection in our criminal justice system. It is not a mere formality established whenever a witness is uncommunicative for some unknown reason; it requires an evidentiary foundation. McLachlin J. has written elsewhere: “There is no presumption of necessity; it must always be considered on the circumstances of a particular case” (Rockey, supra, at para. 17 (emphasis added)). In my respectful view, McLachlin J.’s approach in the case at bar would require a trial judge to infer necessity in circumstances where the Crown failed to take even simple steps to establish it.

5Commencing at para. 33, McLachlin J. separates the reasons for which a witness is not testifying from the question of that witness’s availability and, thus, from the issue of the necessity of introducing substitute hearsay evidence. What this dichotomy obscures is the reality that why a witness is not testifying has everything to do with that witness’s present or future availability and ability to testify. A witness suffering a temporary physical illness is different from a witness who is on the verge of suffering permanent mental trauma, who is different from a witness who is effectively recanting, who is in turn different from a witness who simply decides not to participate in the process. Without knowing why a witness is uncommunicative, we cannot know whether that witness is genuinely unavailable or, accordingly, whether resort to hearsay evidence is reasonably necessary.

6It is appropriate for a trial judge to be quite cautious in making determinations as to why a witness has stopped testifying. A trial judge is unlikely to bring to the bench any particular medical expertise. To ask the trial judge to guess and make assumptions about why a witness has stopped testifying puts a heavy burden on him or her. This burden is all the heavier when the trial judge has no expertise to evaluate the risks of harm to a child witness in proceeding, yet he or she must try to evaluate these in a charged context with a great deal at stake.

7A finding of necessity for the admission of hearsay evidence requires an evidentiary foundation that is appropriate in the circumstances: see Khan, supra, at p. 546. If the trial judge is to satisfy him- or herself that the hearsay evidence is actually necessary, it is incumbent on counsel attempting to introduce the evidence to make some reasonable attempt to establish such a foundation. In R. v. Aguilar (1992), 1992 CanLII 7727 (ON CA), 10 O.R. (3d) 266, a case not dissimilar from that at bar, the Ontario Court of Appeal considered a situation where the Crown had adduced no evidence as to why a child witness’s testimony in court did not go as far as her earlier out-of-court statements. The Ontario Court of Appeal held that this meant that the Crown had failed to establish the reasonable necessity of admitting the hearsay statements. This is not a matter of treating child witnesses more harshly than adult witnesses, as McLachlin J. claims at para. 42. Rather, it is a matter of acting prudently in admitting anyone’s hearsay evidence when there seems to be a viable alternative in the form of direct testimony and, particularly, when the liberty of an accused is at stake.

8Where a trial judge determines that a witness is unavoidably unavailable or incompetent to testify and a party is unable to obtain evidence of a similar quality from another source, the reasonable necessity of out-of-court statements might appear self-evident. For example, in R. v. P. (J.) (1992), 1992 CanLII 2919 (QC CA), 74 C.C.C. (3d) 276, the Quebec Court of Appeal recognized that it was impossible for a toddler to appear as a competent witness, thus making the introduction of her out-of-court statements reasonably necessary. I note, however, that the determination of necessity in such circumstances resulted from a prior determination of the witness’s incapacity. McLachlin J., in affirming the Quebec Court of Appeal’s decision on behalf of a unanimous Supreme Court of Canada, effectively recognized that such a determination was something that itself required inquiry: R. v. P. (J.), 1993 CanLII 161 (SCC), [1993] 1 S.C.R. 469.

9In the case at bar, the trial judge determined that the child witness was competent to testify. The process was not entirely easy. The witness was unfamiliar with the courtroom, and the record shows clearly that there were numerous occasions when either she gave a non-verbal response or the recorder did not pick up her verbal response. However, it is indisputable that she answered many questions. When she stopped answering questions, Crown counsel adduced no evidence as to why she had stopped. Crown counsel did not even take the simple step of asking for an adjournment to determine in an appropriately sensitive manner if the witness could continue after a pause.

10Works written in the area specifically refer to an adjournment as a step that may help to deal with a situation where a child witness stops talking during testimony: W. Harvey and P. Dauns, Sexual Offences Against Children and the Criminal Process (1993), at p. 184; K. Saywitz, “Children in Court: Principles of Child Development for Judicial Application”, in J. Bulkley and C. Sandt, eds., A Judicial Primer on Child Sexual Abuse (1994), 15, at p. 40. The Crown failed to take simple, appropriate steps that might have enabled the witness to continue testifying and that would have helped the trial judge to determine whether the witness could resume testifying.

11The trial judge, who had the unique opportunity to observe the witness’s demeanour and comportment, found that she simply did not know why the witness had stopped answering questions. Who knows? Maybe she did not, understanding the promise to tell the truth, want to repeat that which she had said earlier while not under such a promise. Accordingly, in balancing the need for a fair trial process with the need for sensitivity to the circumstances of child witnesses, she held that the Crown had not set out a foundation for the reasonable necessity of the use of hearsay evidence despite the dangers associated with it. The Saskatchewan Court of Appeal upheld the trial judge’s exercise of discretion. I see no reason to disturb it. In my view, the reason a witness stops talking has everything to do with his or her present or future availability and ability to testify. This means that it must be the subject of a specific determination by the trial judge based on an evidentiary foundation before the admission of hearsay evidence becomes reasonably necessary. I would dismiss the appeal.

The following are the reasons delivered by

12L’HEUREUX-DUBÉ J. – I am in complete agreement with the reasons of my colleague Justice McLachlin. I write separately to emphasize the need for increased sensitivity to the difficulties that children face when called upon to testify, particularly in abuse cases.

13The extent of sexual abuse of children in this country is a tragic fact. See Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children (1984) (“Badgley Report”). Reporting of sexual offences has increased since the Badgley Report, see J. V. Roberts, Sexual Assault Legislation in Canada, An Evaluation: An Analysis of National Statistics (1990), at pp. 9-12, and it is estimated that up to 80 percent of all sexual offences involve children. See N. Bala and M. Bailey, “Canada: Recognizing the Interests of Children” (1992-93), 31 U. Louisville J. Fam. L. 283, at p. 292. In recent years, we have come to realize that for children who are victimized by sexual abuse, their ordeal continues as they are forced to enter the strange and unfamiliar terrain of the courtroom. See K. Saywitz, “Children in Court: Principles of Child Development for Judicial Application”, in J. Bulkley and C. Sandt, eds., A Judicial Primer on Child Sexual Abuse (1994), 15, at pp. 37-38 (and sources cited therein); N. Bala, “Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System”, in W. S. Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination in the Law and the Administration of Justice (1993), 231, at p. 233; J. R. Spencer and R. H. Flin, The Evidence of Children: The Law and the Psychology (1990), at pp. 290-97. Thus, Parliament has taken important steps “to sensitize the law to the realities of the child witness” (para. 42). This Court has upheld the constitutionality of allowing complainants to testify behind a screen (R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475) and of introducing a videotape of the complainant’s statement regarding the offence (R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419). In writing for a unanimous Court in Levogiannis, supra, at p. 483, I recognized that “young complainants often suffer tremendous stress when required to testify before those whom they accuse”. As discussed in the brief for amicus curiae of the American Psychological Association in Maryland v. Craig, 497 U.S. 836 (1990) (1989 U.S. Briefs 478 (Lexis)), social science evidence supports this assertion.

14Yet separating the child witness from his or her alleged abuser does not erase the trauma of testifying. I agree that “[t]he entire court process may be alien and frightening to children, no matter how well briefed” (para. 43). The findings of the Ontario Law Reform Commission’s Report on Child Witnesses (1991) support this assertion: “There is now a realization that furnishing evidence in court can be extremely traumatic for a child” (p. 70). Moreover, the Ontario Law Reform Commission recognized that testifying in court may cause children to suffer short or long term psychological damage (at p. 71, citing the Law Reform Commission of Western Australia, Discussion Paper, The Evidence of Children and Other Vulnerable Witnesses (1990), at p. 11, and C. L. Marchese, “Child Victims of Sexual Abuse: Balancing a Child’s Trauma Against the Defendant’s Confrontation Rights – Coy v. Iowa” (1990), 6 J. Contemp. Health L. & Pol’y 411, at p. 415).

15As my colleague properly acknowledges, it is not surprising that some children are unable to respond to questioning in any meaningful way: “the child victim may ‘freeze’ and refuse to answer questions at a time when it is most important for the case that she do so” – J. Castel, “The Use of Screens and Closed-Circuit Television in the Prosecution of Child Sexual Abuse Cases: Necessary Protection for Children Or a Violation of the Rights of the Accused?” (1992), 10 Can. J. Fam. L. 283, at p. 286. I agree with McLachlin J. that “[s]ometimes what happened may make it so clear that the witness was truly unable to testify that necessity can be inferred absent evidence as to why the witness cannot testify” (para. 44 (emphasis in original)). As Professor Paciocco has convincingly argued, “there is nothing in the rules of proof to prevent the application of common sense, and everything to require it”: D. M. Paciocco, “The Evidence of Children: Testing the Rules Against What We Know” (1996), 21 Queen’s L.J. 345, at p. 392.

16“Judges have a crucial role to play in ensuring that the court is not a hostile environment for the child witness”: Ontario Law Reform Commission, Report on Child Witnesses, supra, at p. 91. Although the child may not face the accused, the child may still become traumatized for a host of reasons. See Castel, supra, at p. 287. Expert testimony is neither a panacea nor a prerequisite to observing and understanding the traumatized child witness. Recognizing the trauma of child testimony of sexual abuse lies within “the shared cognizance of all of those of us who walk on this planet”: Paciocco, supra, at p. 392.

The judgment of Gonthier, McLachlin, Bastarache and Binnie JJ. was delivered by

17McLachlin J. – The traditional common law hearsay rule held that out-of-court statements could not be admitted for the truth of their contents unless they fit into one of the established exceptions to the rule. In R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, and R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, this Court authorized admission of the statements for their truth if they are reasonably necessary and reliable. The Court looked at the requirement of necessity more particularly in R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, and recommended a flexible approach capable of encompassing a variety of situations. This appeal presents one such situation – the case where a young child is called to testify but fails to give a meaningful account of the events. The narrow question in this appeal is whether the trial judge erred in concluding that, in the absence of extrinsic evidence explaining why the child refused to testify, the Crown could not establish necessity. I conclude that she did so err and would accordingly direct a new trial.

I. The Facts

18W.J.F. was charged with committing sexual assaults on L.A. between May 1, 1996, and January 21, 1997. The complainant L.A. was five years old when the alleged assaults began and just over six when they were discovered. She told her aunt, her mother and her father what had happened and gave a detailed and extensive account of the assaults to the police, which was video recorded. She was six years and eight months old at the time she was called upon to testify about the assaults at trial.

19The Criminal Code, R.S.C., 1985, c. C-46, permits the trial judge to protect and assist young witnesses by permitting the trial judge to order that they testify behind a screen, have a support person appointed, and testify in a courtroom from which the public is excluded. The trial judge ordered all these measures for the child complainant in this case.

20The Crown called the child and the trial judge began an inquiry pursuant to s. 16 of the Canada Evidence Act, R.S.C., 1985, c. C-5, to determine if she was able to communicate the evidence and whether she could testify on a promise to tell the truth. The child seemed to be having difficulty responding to the questions. Instead of answering verbally, she nodded or shook her head and used gestures. Nevertheless, while commenting that the child was going to have considerable difficulty communicating her evidence, the trial judge found the child competent to testify under a promise to tell the truth. L.A. had given no verbal response or no response, which the recording system could capture, to slightly over 100 of the questions asked during the preliminary inquiry.

21Crown counsel commenced direct examination. It was a difficult process. The child answered preliminary questions about age, family and school with single words or simple phrases. When counsel asked if someone had done something to make her feel uncomfortable or bad, the child responded with a faint “no”. Further questioning only attracted a series of insufficient responses. At one point the child indicated that she had forgotten what had happened.

22Crown counsel then tried a different tack – to have the child adopt the contents of the videotape made by the police. However, she did not respond to any of the questions put to her about the videotape. Even when shown parts of the video depicting herself, her mother and the police officer, the complainant failed to identify any of the people shown on the television screen. Section 715.1 of the Code provides that a videotape of answers given to the police may be admitted into evidence where the witness adopts the contents of the videotape. The videotape could not be admitted under this section because the child failed to adopt it.

23Crown counsel then applied to have the out-of-court statements the child had made to others about the alleged assaults introduced into evidence for the truth of their contents as an exception to the hearsay rule, on the basis that the statements met the requirements of necessity and reliability set out in Khan, supra. The statements the Crown proposed to introduce were statements the child made to her paternal aunt, statements made to the aunt and overheard by another, statements the child made to her mother, statements the child made to her father, and finally the child’s videotaped statement to the police.

24The trial judge held a voir dire to determine the admissibility of these statements. It was very clear the child was effectively “frozen” and could not testify. But the trial judge took the view that in order to establish necessity, the Crown had to present evidence establishing why the child failed to testify, which the Crown had not done. Accordingly, the trial judge ruled that the child’s statements to her aunt, her parents and the police failed the necessity prong and could not be received under the Khan exception to the hearsay rule.

25Without the child’s evidence, the Crown’s case fell. The Crown presented no further evidence, and the accused was acquitted.

26The Crown appealed. The majority of the Saskatchewan Court of Appeal dismissed the appeal, Jackson J.A. dissenting.

II. Court Decisions

27The trial judge’s rejection of the child’s out-of-court statements turned on the failure of the Crown to call evidence showing why the child did not respond to questions about the alleged assaults at trial:

On review of the cases I conclude that a finding of necessity requires some finding of incapacity or some precise explicit or definable reason why direct evidence cannot be received or exclusively relied on before concluding that the statement ought to -- must be admitted in order to get a full and complete account of what occurred. The cases that found necessity dealt with issues of testimonial incapacity, [being] unable to recollect adequately or fully due to passage of time or the age of the child, the trauma to the child because of testifying, and other situations where the witness was simply unavailable. Once one of those issues [is] identified it is obvious that the criterion could be met in a wide variety of cases.

We have none of these factors in this case, although there must be some reason why [L.A.] did not testify about the alleged assaults although she appeared capable of doing so. I have no evidence before me to assist me in determination of that issue; that is, to explain her failure to testify so I can determine in the circumstances whether it would be reasonably necessary to admit the hearsay statements. I cannot and will not speculate on why she did not testify as there was nothing in her demeanour, her actions or her limited response to questions regarding the allegations on which I could base such speculation.

Therefore, I conclude that I cannot find that the Crown has shown that it is reasonably necessary to admit the out-of-court statements for the truth of their contents.

28The majority of the Saskatchewan Court of Appeal, dismissed the appeal ((1998), 1998 CanLII 12373 (SK CA), 165 D.L.R. (4th) 247) agreeing with the trial judge that in order to establish necessity, the Crown must provide the court with some explanation as to why the child failed to testify. To hold otherwise, Lane J.A. held, would virtually abrogate the necessity requirement. Lane J.A. also suggested that the Crown could have asked for a short adjournment to talk to the witness, the counsellor and relatives to ascertain the reasons for the child’s failure to testify. While there may be some cases where it is self-evident that the out-of-court statements are necessary, this was not such a case. Wakeling J.A. agreed and added that he also had concerns about assessing the reliability of the evidence.

29Jackson J.A. dissented. In her view, the requirements of necessity were established. While the trial judge had referred to the right authorities, she erred in law by requiring the Crown to establish why the child failed to testify. Jackson J.A. explained, at p. 267:

One can never know exactly why a child will not talk. After a child has taken the stand and stops communicating, calling a psychologist to say the child was traumatized or that the behaviour of children in stressful situations can be inexplicable adds little to the process. Nor should it be necessary for the Crown to have on hand someone who can explain a child’s behaviour in circumstances such as this. It is readily apparent that the child began to testify in this case and then stopped. The trial judge was presented with the best possible means to determine whether it was reasonably necessary to receive the child’s out-of-court statements -- by the child herself.

Jackson J.A. noted, at p. 264, that while “[g]eneral rules are to be avoided in this area, . . . in normal circumstances, once a court is faced with a young child who is unable to communicate the critical evidence, it will usually be reasonably necessary for the trier of fact to receive the out-of-court statement”.

30Jackson J.A. added that to require the Crown to adduce evidence in every case of why a child witness is unable to testify places too onerous a burden on the Crown. The Crown cannot bring to bear against a child many of the legal remedies available for unhelpful adult witnesses, such as declaring the witness hostile and finding the witness in contempt. The critical point on the issue of necessity is the need to obtain a full and frank presentation of the evidence.

III. Analysis

31The great American scholar of evidence, Wigmore, identified two considerations that underlie the common law exceptions to the hearsay rule -- “a circumstantial probability of trustworthiness, and a necessity, for the evidence” (Wigmore on Evidence, vol. 5 (Chadbourn rev. 1974), §1420). The necessity of which Wigmore speaks is founded on the need to get at the truth. Hearsay evidence may be necessary to enable all relevant and reliable information to be placed before the court, so justice may be done. Generally, the common law insists that evidence be presented under oath and subjected to cross-examination. But “[w]here the test of cross-examination is impossible of application, by reason of the declarant’s death or some other cause rendering him now unavailable as a witness on the stand, we are faced with the alternatives of receiving his statements without that test, or of leaving his knowledge altogether unutilized” (Wigmore, supra, §1420 (italics in original; underlining added)). This is precisely the choice that faced the trial judge in this case. The witness’s incapacity, for whatever reason, to produce meaningful evidence, faced the court with the spectre of either receiving her out-of-court statements without the test of cross-examination, or of leaving her potentially reliable and clearly relevant knowledge of the crimes with which the accused was charged altogether unutilized.

32The question then becomes whether the interests of justice, or to use Wigmore’s term, “the interests of efficient investigation” (§1420), would suffer more from the first alternative of receiving the out-of-court statements or the second alternative of leaving the witness’s knowledge entirely unused. Wigmore’s answer is that the first alternative is preferable, provided that there is sufficient indication of the trustworthiness of the witness’s statement. “Whatever might be thought of the general policy of choosing the former alternative without any further requirement, it is clear at least that, so far as in a given instance some substitute for cross-examination is found to have been present, there is ground for making an exception” (Wigmore, supra, §1420 (emphasis in original)). He concludes:

The mere necessity alone of taking the untested statement, instead of none at all, might not suffice; but if to this necessity there is added a situation in which some degree of trustworthiness more than the ordinary can be predicated on the statement, there is no reason for admitting it as not merely the best that can be got from that witness, but better than could ordinarily be expected without the test of cross-examination.

33I cite Wigmore because his conceptualization of the rationale for the hearsay rule and the exceptions to it animates this Court’s adoption of the necessity/reliability test for admission of out-of-court statements in Khan, supra, and Smith, supra. It is clear that for Wigmore, necessity arises from the unavailability of the witness’s testimony in the courtroom. The reasons for which the witness’s courtroom testimony is not available are incidental and flexible – “death” or “some other cause”. The reasons for the witness’s inability to testify, in cases of doubt, help the judge decide whether testimonial evidence is truly not available. However, the reasons remain incidental. Necessity, in the final analysis, arises from the fact that the witness’s courtroom testimony is not available. It is this unavailability that triggers the dilemma that underlies the exceptions to the hearsay rule – to prohibit out-of-court statements without cross-examination, or to receive the out-of-court statements provided they evince some degree of reliability.

34The fact that the focus of exceptions to the hearsay rule is unavailability led Wigmore to conclude, in a passage this Court cited with approval in Smith, supra, at pp. 933-34, that expediency or convenience, in appropriate cases, may suffice. Lamer C.J. wrote:

. . . the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations. Wigmore, while not attempting an exhaustive enumeration, suggested at §1421 the following categories:

(1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing (by cross-examination). This is the commoner and palpable reason. . . .

(2) The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources.... The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same.

Clearly the categories of necessity are not closed. In Khan, for instance, this Court recognized the necessity of receiving hearsay evidence of a child’s statements when the child was not herself a competent witness. We also suggested that such hearsay evidence might become necessary when the emotional trauma that would result to the child if forced to give viva voce testimony would be great. [Emphasis added.]

35The cases dealing with the out-of-court statements of children have, with a few exceptions, interpreted necessity as the equivalent of situations where the direct evidence of the witness is unavailable despite reasonable efforts to obtain it – what this Court in Khan, supra, referred to “reasonable necessity”. In Khan this Court stated, at p. 546:

Necessity for these purposes must be interpreted as “reasonably necessary”. The inadmissibility of the child’s evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity.

36Necessity therefore should not be approached on the basis that the case must fit into a preordained category. It is a matter of whether, on the facts before the trial judge, direct evidence is not forthcoming with reasonable effort. The reasons for the necessity may be diverse – ranging from total testimonial incompetence to traumatic consequences to the witness of testifying.

37There is no absolute rule that evidence must be called on the issue of necessity. Where it is apparent from the circumstances before the trial judge that the child cannot give useful evidence, the judge may find out-of-court statements are “necessary” in the context of the rule, absent evidence. This may be the case where the child is very young. Thus this Court dismissed the appeal (1993 CanLII 161 (SCC), [1993] 1 S.C.R. 469) from R. v. P. (J.) (1992), 1992 CanLII 2919 (QC CA), 74 C.C.C. (3d) 276, where the Quebec Court of Appeal ruled, at p. 281, that out-of-court statements were admissible notwithstanding any extrinsic evidence on necessity:

[translation] . . . the test of necessity is met by the very fact of the young age of the child (I repeat, two years, three and a half months at the time of the events, and three years nine and a half months at the time of trial), which entails in the present case the impossibility for the child to testify effectively at this age . . . on the facts which took place one and one-half years earlier. There is no need for “solid evidence based on psychological assessments that the testimony in court might be traumatic for the child or harm the child” here. In my view, it is self-evident, and in addition, the testimony could not be probative because of the time which has passed since the incident and given the nature of the circumstances of the event.

38A similar approach was taken by Jordan Prov. Ct. J. in R. v. C.N. (1997), 1997 CanLII 24615 (AB CJ), 195 A.R. 387. Describing the complainant’s behaviour on the stand, she said, at p. 39l:

Her trauma was obvious. . . . She was not able to bring herself to utter the words that were necessary.

She then stated:

. . . I am satisfied that [the complainant] was unable to answer the questions put to her. Having arrived at that conclusion, . . . [it] doesn’t matter [why] unless there is some reason to believe that knowing the reasons will allow the court to effect some change which will enable the witness to testify.

. . . I do not adopt the approach that there must be psychiatric or psychological evidence introduced in these applications because the use of expert evidence is to be limited to those situations when it is necessary to assist the trier of fact to arrive at a conclusion. To categorically insist upon such evidence would be a regressive step in legal reasoning -- especially when it is not required by the trier of fact. [Emphasis in original.]

The judge also observed that any expert evidence would have a limited value, since it would come from a person who did not observe at first hand the behaviour of the witness on the stand.

39We may thus conclude that where it is self-evident that a child’s evidence will not be effectively available, the judge may find necessity and, subject to reliability, admit the child’s out-of-court statements.

40On the other hand, where it is not self-evident from the circumstances that direct evidence will be unavailable with reasonable efforts, the judge may require evidence of that fact. This may be the case where the Crown, without calling the child as a witness, simply states that to call the child would be traumatic to the child. It was in this context that the Court in Khan referred to “sound evidence based on psychological assessments that testimony in court might be traumatic” (p. 546).

41It is therefore error to assert that in all cases there must be extrinsic evidence to support the assertion that the out-of-court evidence is necessary under the Khan rule. It is for the trial judge and not the prosecutor to determine necessity. To be sure, the trial judge must have a foundation for ruling that necessity is established. But that foundation may arise either from the facts and circumstances of the case as revealed to the trial judge, or from evidence called by the Crown. Where what occurs at trial satisfies the judge that there is no reasonable prospect of obtaining a meaningful account of the events from the child by direct evidence, the judge may well find necessity on the basis that it is self-evident. Failing this, the judge may ground a finding of necessity in evidence called by the Crown. 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.

42Finally, it is hard to understand how an insistence on evidence to support necessity in every case can be reconciled with the values underlying the hearsay rule and the increasing sensitivity in society generally to the difficulties children face when called upon to testify. The law once refused to take cognizance of the special problems young witnesses face and the corresponding difficulties those who seek to prosecute crimes against young children consequently encounter. Child witnesses were treated like adults -- indeed even more severely. Not only did they have to take the oath, but also, unlike adults, they were subjected to grilling on whether they understood its religious implications. If they failed this hurdle or the others that might appear down the road, like corroboration, their evidence was completely lost. The law, in recent decades, has come to realize that this approach was wrong. In R. v. Bannerman (1966), 1966 CanLII 634 (MB CA), 48 C.R. 110 (Man. C.A.), leave to appeal refused, [1966] S.C.R. vii, Dickson J. ad hoc, as he then was, pointed out the absurdity of subjecting children to examination on whether they understood the religious consequences of the oath. Parliament, in a series of laws over the past decades moved to sensitize the law to the realities of the child witness. It amended the law to permit children to promise to tell the truth instead of swearing an oath. It removed the requirements for corroboration. Most recently, it has made available to the child witness aids to testifying, like screens, closed courtrooms and counselors. The Court’s decision in Khan to permit a child’s out-of-court statement to be received where necessity and reliability are present was in keeping with the increasing sensitivity of the justice system to the special problems children may face in giving their evidence and the need to get children’s evidence before the court if justice is to be done. See, e.g., W. Harvey and P. Dauns, Sexual Offences Against Children and the Criminal Process (1993); J. Bulkley and C. Sandt, eds., A Judicial Primer on Child Sexual Abuse (1994).

43The law, through the efforts of Parliament and the courts, now recognizes that children may encounter greater problems in giving their evidence than adults. The difficulty begins with understanding the oath or the obligation imposed by a promise to tell the truth. But it does not stop there. The entire court process may be alien and frightening to children, no matter how well briefed. The child finds him- or herself in a strange world, surrounded by stern and imposing adult strangers, demanding on pain of perhaps incompletely understood consequences that the child reveal what he or she knows. Sexual assault cases bring yet another anxiety. The child is asked to reveal to these imposing and intimidating strangers the most private details of what was done to him or her. From infancy, the child may have been trained not to discuss such things with strangers. He or she has acquired a sense of privacy, and perhaps a sense of shame and guilt about such matters. The child finds him- or herself conflicted, being asked to tell strangers that which he or she has been trained not to tell strangers. Many children, despite these problems, prove equal to the task. But it is not surprising that a few find themselves unable to respond in any meaningful way. See S. V. McLeer et al., “Post-Traumatic Stress Disorder in Sexually Abused Children”, Journal of Child and Adolescent Psychiatry, XXVII (1988), 650, and A Judicial Primer on Child Sexual Abuse, supra, at pp. 39-40. The policy of the law in recent decades points to seeking to understand and recognize these difficulties. When we do, it becomes apparent that a child’s inability to answer questions about upsetting and highly personal events some time in the past may well establish reasonable necessity in Wigmore’s sense of unavailability. Instead of treating the child witness more harshly than the adult, as those who insist on special evidence of necessity suggest, we should be seeking to understand the child’s special situation.

44Underlying the insistence on knowing why the child cannot give meaningful testimony is the concern that if one finds necessity too readily one risks depriving the defence of cross-examination when, with more diligence, it would have been available. A witness cannot be excused from testifying because the witness is not in the mood or is generally fearful of the process, which might create an incentive for witnesses, who would rather not endure the rigors of cross-examination, to “clam up”. The simple answer to this concern is that fear or disinclination, without more, do not constitute necessity. In each case the trial judge must determine whether, on the facts and circumstances of the case, necessity has been established. Often that will involve going into the reasons for the problem. Often too, it will involve expert evidence. But not invariably. Sometimes what happened may make it so clear that the witness was truly unable to testify that necessity can be inferred absent evidence as to why the witness cannot testify. This analysis, when applied to children, should take into account the child-sensitivity policies emerging in the law. The ultimate question is whether the evidence is reasonably necessary. When children become distressed, a reasonable course of action might well be to take a brief break. Trial judges have great flexibility in conducting their proceedings, and need not rush to hearsay at the first sign of difficulty. But once having decided that reasonable efforts cannot render the evidence available, little is added by adducing extrinsic evidence to pinpoint the exact source of a child’s problem.

45I conclude that the requirement of necessity may be established either on the basis of what has happened at trial or on the basis of evidence. Evidence as to the reason why the child fails to give his or her evidence in court, while often useful, is not essential. What is required is that the trial judge be satisfied that the evidence is unavailable despite reasonable efforts to obtain it.

IV. Application to the Case at Bar

46The trial judge rejected the statements the child made to the aunt, her parents and the police on the basis that necessity was not established, because the Crown did not prove by extrinsic evidence why the evidence was unavailable. Applying the test for necessity discussed above, I have concluded that the trial judge erred in insisting on extrinsic evidence as to why the child was unresponsive. It was open to her to find necessity established on the basis of the proceedings at trial, notably the child’s inability to respond in any meaningful way to the Crown’s questions about the events, without insisting that the Crown go on to call evidence on the reasons for the unavailability as a rigid condition precedent.

47The record offers ample evidence to support the conclusion that the child was emotionally traumatized to the point of being unable to testify. Given this record, it was an error to insist on extrinsic evidence as to why the child could not testify.

48The trial judge, in interrogating the child, herself seemed to accept that the child could not testify. After counsel indicated he could ask no further questions of the child, the trial judge intervened.

THE COURT: Mr. Andrews, I would just like to ask one question of her. [L.A.], people are asking you a lot of questions today; right? Hmm. We’re asking lots of questions; aren’t we? Hmm? Yes?