R. v. Parrott, [2001] 1 S.C.R. 178, 2001 SCC 3

Her Majesty The Queen Appellant

v.

Walter Parrott Respondent

Indexed as: R. v. Parrott

Neutral citation: 2001 SCC 3.

File No.: 27305.

2000: January 27; 2001: January 26.

Present: L’Heureux‑Dubé, Gonthier, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for newfoundland

Criminal law – Evidence – Hearsay exception – Expert witnesses – Whether mentally challenged complainant must be called as witness on voir dire to assess necessity component of principled approach to admitting hearsay evidence – Whether trial judge erred in relying entirely on expert evidence directed at voir dire issue of testimonial competence – Whether complainant’s out‑of‑court statements are inadmissible at trial – Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 16.

A mature woman with a mental disability was seen being put into the accused’s car parked outside the psychiatric hospital where the woman resided. After conducting a search which lasted over seven hours, the police located the car, with the woman and the accused, in a remote area. Her shorts and underwear were in disarray. She had bruises and scratches on her body. The woman made out-of-court statements to the police constable who found her and to the doctor who first examined her. Pointing to her injuries, she communicated that the man in the car had done it. The accused was charged with kidnapping and sexual assault.

The trial judge was told that the complainant would be unable to give detailed evidence in court since her mental development was equivalent to that of a three- or four-year-old child and her memory of the events was poor. Crown counsel applied to admit the earlier out-of-court statements made to the doctor and the police officer, some of which had been videotaped, as a substitute for the complainant’s direct testimony at trial. Defence counsel opposed the application, arguing that the out-of-court statements were unreliable and moreover were unnecessary in light of the complainant’s availability to testify in person. A voir dire was held on the issue.

Based on one doctor's testimony and the complainant’s videotaped statement, the trial judge found it unnecessary to have the complainant herself called at the voir dire. The out-of-court statements were admitted. The accused was convicted of kidnapping, acquitted of sexual assault, but convicted of assault causing bodily harm.

The majority of the Court of Appeal held that the trial judge erred in admitting the hearsay evidence when the complainant herself was available to testify and there was no expert suggestion that she would suffer any trauma or adverse effect by appearing in court. The curative proviso of the Criminal Code was applied to maintain the conviction with respect to kidnapping but the conviction with respect to assault causing bodily harm was quashed and a new trial was ordered. The Crown appealed against the setting aside of the assault verdict.

Held (L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting): The appeal should be dismissed.

Per Major, Bastarache, Binnie and Arbour JJ.: The procedure adopted in this case raises two distinct though related issues, firstly the admissibility of the expert evidence at the voir dire, and secondly the admissibility of the complainant's out-of-court statements at the trial.

With respect to the first issue, there was no necessity shown at the voir dire for the expert medical evidence. Trial judges are eminently qualified to assess such matters as “childlike mental condition” or “poor ability to sustain questioning” without expert assistance. The complainant was available to testify and there was no suggestion that she might be harmed thereby. At the time the expert testimony was called, there was no basis laid for its reception. The complainant herself did not testify. The expert evidence was thus improperly admitted at the voir dire. As a consequence, the trial judge had no admissible evidence on which to exercise a discretion to admit the complainant’s out-of-court statements.

On the second issue, even if the expert medical evidence had been properly admitted and accepting the trial judge's view that the out-of-court hearsay evidence was “reliable”, the trial judge nevertheless erred in finding its admission to be “necessary”. If a witness is physically available and there is no suggestion that she would suffer trauma by attempting to give evidence, as was the case here, that evidence should generally not be pre-empted by hearsay. There were no exceptional circumstances in this case to displace the general rule.

Stereotypical assumptions about persons with disabilities, be it testimonial competency or trauma, should be avoided. The video of the complainant’s out-of-court statement could not afford evidence of any subsequent deterioration in her recollection of the events or her ability to communicate them. The trial judge having misdirected himself on the admissibility issue, his ruling must be set aside and the majority decision of the Newfoundland Court of Appeal ordering a new trial on the assault charge affirmed.

Per L’Heureux-Dubé, Gonthier and LeBel JJ. (dissenting): While it is generally a prudent practice for the Crown to put the complainant forward as a witness in order for the trial judge to evaluate her testimonial capacity, it is not an absolute legal requirement in every case. The trial judge’s inquiry was much broader than a limited application of a test of mental competence. The trial judge must assess the whole condition of the witness and balance the potential value of the evidence which may result from viva voce testimony against the potential prejudice to the witness. Potential trauma to the witness is one instance in which the Crown is not obliged to call her before the court in order to establish necessity. Other possibilities include circumstances in which it would be harmful to the witness or serve no real purpose to do so. Here, it would have served no real purpose for the trial judge to examine the complainant on the voir dire, given the evidence of necessity already before him.

The evidence before the trial judge amply supports his findings of necessity and reliability with respect to the complainant’s out-of-court statements. Assessing this complainant’s testimonial competency as a whole involved matters outside the traditional expertise of the trial judge. With the assistance of expert medical witnesses, the trial judge was able to acknowledge the childlike mental condition of the complainant and her fragile emotional state in addition to her poor ability to sustain questioning.

The complainant’s videotaped out-of-court statement to police, which the trial judge reviewed, made it apparent that she was incapable of testifying in a meaningful way, especially in the unfamiliar setting of a courtroom, about personally traumatic events that had taken place some nine months earlier. The videotape afforded the trial judge an adequate opportunity to evaluate the complainant’s ability to communicate evidence about the incident. It complemented reliably the information received from expert witnesses at the voir dire. The trial judge rightfully found the complainant incapable of communicating evidence in any meaningful way. Requiring the Crown to make the complainant testify only to confirm her limited ability to convey evidence would not only fail to generate any new evidence, but would also be demeaning and potentially traumatic to her.

In cases involving young children or people with mental disabilities who are mentally assimilable to young children, neither direct evidence of the trauma nor the compulsory attendance of the witness in order to demonstrate it should become a requirement. Even if, as a general rule, the judge should hear the witness in the case, some situations may arise where the attendance of the witness in court is unwarranted and unnecessary. Such was the case here and the complainant’s out-of-court statements met both the necessity and reliability requirements.

The majority of the Court of Appeal erroneously engaged in a re-evaluation of the record and interfered too readily with the trial judge’s findings. The trial judge was in a superior position to assess the expert testimony, which confirmed his observation of the complainant’s videotaped testimonial abilities. Admitting the hearsay evidence did not amount to palpable error. The accused’s conviction for assault causing bodily harm should be restored.

Cases Cited

By Binnie J.

Applied: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. Marquard, [1993] 4 S.C.R. 223; considered: R. v. R. (D.), [1996] 2 S.C.R. 291; R. v. F. (W.J.), [1999] 3 S.C.R. 569; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Hawkins, [1996] 3 S.C.R. 1043.

By LeBel J. (dissenting)

R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Starr, [1990] 2 S.C.R. 144, 2000 SCC 40; R. v. F. (W.J.), [1999] 3 S.C.R. 569; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. Marquard, [1993] 4 S.C.R. 223; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. P. (J.) (1992), 74 C.C.C. (3d) 276, aff’d [1993] 1 S.C.R. 469.

Statutes and Regulations Cited

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

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

Authors Cited

Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.

APPEAL from a judgment of the Newfoundland Court of Appeal (1999), 175 Nfld. & P.E.I.R. 89, [1999] N.J. No. 144 (QL), dismissing the accused’s appeal from his conviction for kidnapping, allowing the accused’s appeal from his conviction for assault causing bodily harm and ordering a new trial. Appeal dismissed, L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting.

Wayne Gorman, for the appellant.

Robin Reid, for the respondent.

The reasons of L’Heureux-Dubé, Gonthier and LeBel JJ. were delivered by

[1] LeBel J. (dissenting) – At issue in this appeal is whether the complainant’s out-of-court statements meet the necessity criterion of the principled approach to hearsay evidence, and were properly admitted by the trial judge for the truth of their contents. The Crown indicated at the beginning of trial that it did not intend to call upon the complainant to testify, stating that she was incapable of doing so. The complainant has Down’s syndrome. Her doctors describe her as mildly to moderately mentally retarded and she had been in institutional care for many years. As mentioned in Justice Binnie’s reasons, expert evidence has established that she had reached the mental development of a three- or four-year-old child.

[2] At trial, the Crown sought to enter as evidence out-of-court statements the complainant made to others shortly after the incident occurred. The question at issue in this appeal is whether, on the voir dire to determine necessity, the Crown was obliged to put the complainant forward as a witness in order for the trial judge to evaluate her testimonial capacity. While I agree with my colleague, Binnie J., that it is generally a prudent practice to have the Crown do so, I would not elevate it to an absolute legal requirement in every case. In my view, the evidence before the trial judge in the present case amply supports his findings of necessity and reliability. His judgment was completely in accordance with the jurisprudence of the Court on the admissibility of hearsay evidence.

I. The Principled Approach to Hearsay Evidence

[3] A hallmark of the principled approach to hearsay is flexibility. In moving away from the categorical approach of the past to hearsay exceptions, the Court signalled in the last decade an intention to render the rules governing the reception of hearsay evidence more responsive to individual situations. (See, e.g., R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; and R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40. See also J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 189-201.) When dealing with young children or people with mental disabilities, this approach seeks to address the necessity and reliability required for the admission of the evidence while at the same time safeguarding the dignity and integrity of the complainants or witnesses.

[4] According to the modern approach, out-of-court statements may be admitted for their truth if reliable and reasonably necessary. Necessity is intended to be a malleable concept. In R. v. Smith, this Court stated (at pp. 933-34):

... 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 more 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.]

Let us note that this passage was reproduced with approval recently in R. v. F. (W.J.), [1999] 3 S.C.R. 569, at para. 34 (per McLachlin J., as she then was).

[5] Thus, we realize that we are far from the strict approach to hearsay which prevailed in the past. Perhaps the most important aspect of the broad account of necessity quoted above is the fact that “the categories of necessity are not closed”. Trial judges now have a much broader discretion to admit evidence which would otherwise be considered as hearsay. This court should not attempt to confine this discretion into limited categories, but should rather content itself with stating broad principles to guide judges in the exercise of their discretion. As Lamer C.J. warned in R. v. U. (F.J.), [1995] 3 S.C.R. 764, at para. 35:

... both necessity and reliability must be interpreted flexibly, taking account of the circumstances of the case and ensuring that our new approach to hearsay does not itself become a rigid pigeon-holing analysis.

[6] Of course, there is no presumption of necessity and the trial judge must consider whether the criterion is satisfied on the particular facts of each case: R. v. F. (W.J.), at para. 41; R. v. Rockey, [1996] 3 S.C.R. 829, at para. 17. However, the case law does not mandate that any particular kind of evidence must be adduced in order to demonstrate necessity. As McLachlin J. viewed it, while writing for the majority in R. v. F. (W.J.), at para. 41, necessity may be founded on “the facts and circumstances of the case as revealed to the trial judge, or from evidence called by the Crown”. In keeping with the overriding principle of flexibility, the key is that necessity be grounded in evidence that is appropriate to the circumstances.

[7] In R. v. Marquard, [1993] 4 S.C.R. 223, at p. 236, the Court observed that generally speaking, the best measure of testimonial capacity is the witness’s performance at the time of trial. I agree that the preferred method of evaluating a witness’s ability to give evidence is to assess him or her at first hand, especially during cross-examination. But this is clearly not an absolute rule, and to make it so risks stultifying the modern approach to hearsay contrary to the desired principle of flexibility. The case law suggests that, even when the hearsay declarant is physically available, the trial judge is not obliged to examine him or her directly in order to find necessity. Khan and Rockey are two instances in which the necessity criterion was met, notwithstanding the Crown’s failure to call the hearsay declarants for examination on the voir dire. In both cases, necessity was grounded on evidence that testifying in court would have traumatized the child witnesses; it would accordingly have been cruel indeed to require them to appear at the voir dire: R. v. Rockey, at para. 23. While potential trauma to the witness is one instance in which the Crown is not obliged to call her before the court in order to establish necessity, I would not foreclose the possibility of other circumstances in which it would be harmful to the witness, or serve no real purpose to do so.

[8] The trial judge, in the present case, found it necessary to admit the complainant’s out-of-court statements without first calling the complainant as a witness. The judge’s finding was based on his observation of the videotaped interview of the complainant, the evidence of her attending physician and nurse, and that of two other physicians who examined her. The Court of Appeal ((1999), 175 Nfld. & P.E.I.R. 89) should not have intervened on Barry J.’s finding that the admission of the videotaped interview was rendered necessary by the facts of the case. The situation before him amply suggested that admission of the videotaped interview was necessary as “evidence of the same value” would most likely not be obtained by viva voce testimony of the complainant. It was apparent that attempting to make the complainant testify would not only fail to generate any new evidence, but also that it would be demeaning and potentially traumatic to her.

[9] In this context, the ruling of the trial judge was not a narrow one limited to the application of a test of mental competence as in s. 16 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The trial judge’s inquiry was much broader. It sought to examine the whole of the complainant’s condition as mandated by our principled approach to hearsay and necessity as discussed above. In that regard, the trial judge did not simply express a preference for the views of one of the experts heard, Dr. Gillespie. Barry J.’s decision examined more broadly the victim’s childlike mental condition or mental retardation and its impact on her potential testimony. This careful consideration of the condition of the complainant led the judge to decide that she was incapable (as opposed to the more narrow concept of “incompetence”) of testifying. He then decided that the out-of-court statements in the video should be received into evidence, because they met the reliability and necessity tests.

II. The Evidence on the Complainant’s Condition

[10] Barry J. held that the admissibility of the video was justified by his finding about the mental age of the victim which he equated to that of a very young child:

It appears that it [her mind] might be . . . so greatly retarded that it does not allow her to mentally process or express matters in a normal matter other than in very simple statements such as, one might attribute to a child of very tender years.

(Transcript of Barry J.’s ruling on the voir dire of March 30, 1995, at p. 4)

[11] On the basis of the video, and of the evidence of a nurse of the Waterford Hospital and the testimony of experts, the trial judge noted that the victim lived a very restricted life, under constant supervision. She was able to make simple statements, but did not retain any long term memory of events, although at the same time, she seemed unable to attempt to deceive and had no history of fabrication. As Barry J. stated:

All these activities have to be supervised and many of them require assistance. She has a habit of repeating things that she has heard or come into contact with and may do so in answer to questions that may be completely unrelated. She has no history of fabrication . . . [S]he is capable of making simple statements about some matters. But her mind cannot retain an account of any particular matter for any length of time or . . . complete an account of anything which may transpire. As I’ve mentioned, she has no history of fabrication and it appears that from her history . . . it would be unlikely that she would attempt to deceive any person of something which may have occurred.

(Transcript of Barry J.’s ruling on the voir dire of March 30, 1995, at p. 4)

[12] In my opinion, this is one of those cases in which it would have served no real purpose for the trial judge to examine the complainant on the voir dire, given the evidence of necessity already before him. The record fully supports the trial judge’s finding that the complainant was incapable of testifying in a meaningful way about the incident. Chief among the evidence was the videotape of the complainant’s interview with Sergeant Ryan, which enabled the trial judge to observe for himself the complainant’s ability to convey evidence. The interview was conducted on the day after the incident took place, in the company of a nurse and nursing assistant from the Waterford Hospital where the complainant lives. Sergeant Ryan asked the complainant a number of basic questions about the incident, to which she responded in broken sentences that were, at times, very difficult to understand. The trial judge recounted the interview in the following way:

In response to questions from Sergeant Ryan as to what had happened to her, she made several statements; and in the first statement when asked that question as to what happened to her, she said “the man in handcuffs did it,” and then she said, “Put him in jail.” When asked what happened to her arm and face, the bruises and scratches, she said, “A man did that, put him in jail.” When asked what the man looked like, she said, “Man with black hat... glasses... police took him away.” When asked who hurt her face, she said, “scratched me” and when asked who, she said, “The man”. When asked where, she said, “In the car.” When asked what he did, she said, “Smacked me.”

(Barry J.’s reasons for conviction of April 3, 1995, at p. 11)

The Court of Appeal also reviewed the videotape. The majority and minority opinions provide a similar account of the interview, which Wells C.J.N. described as follows at p. 127:

That video tape displays [the complainant] answering Sergeant Ryan’s question as to the cause of her scratches and bruises with “bad man, handcuffs, go to jail” on each of the numerous times she was asked. In answer to who he was or what his name was she simply repeated “Don’t know” each time she was asked. To the question of what he looked like she said “glasses” and “hat”.

[13] This was the extent of the information that the complainant was able to communicate about the incident shortly after it occurred and in a supportive environment. The trial judge found the complainant’s responses to Sergeant Ryan’s questioning repetitive and largely incoherent. I cannot disagree with his conclusion, and am doubtful that she would have been able to provide useful information in the unfamiliar setting of a courtroom, about personally traumatic events that had taken place some nine months earlier.

[14] As the Court confirmed in R. v. Marquard, at p. 236, testimonial capacity entails the ability to perceive, recollect and communicate events to the court. The evidence of the physicians who examined the complainant only confirms the extremely limited nature of her communication skills. Dr. Gillespie, a psychiatrist associated with the Waterford Hospital who had known the complainant for almost 20 years, evaluated her ability to communicate shortly before the beginning of trial. His evidence was unequivocal that she was incapable of testifying in court. Her answers to simple questioning about the incident were “totally incoherent” and repetitive. While he could not provide a conclusive opinion on her memory, he did cast doubt on her long term ability to remember the events at issue. Responding to a question from counsel about the videotaped interview, he stated:

A. Yeah, I heard that, you know second hand that she’d been videotaped and made some statements, but I gather that was some time back last year and I would think with her poor attention span, she may not remember what she said then. But certainly when I asked her about a man taking her away from the hospital, she couldn’t give me any answer that was coherent.

[15] Dr. Gillespie’s assessment of the complainant’s ability to communicate was uncontradicted by the testimony of Dr. Parsons, a family doctor who examined her several hours after the incident took place, and of Dr. Morley, her attending physician. Dr. Parsons reported that the complainant was simply unresponsive to her questioning about the incident. Dr. Morley confirmed that the complainant’s capacity to communicate was limited and that the court would have difficulty understanding her. As for her ability at the time of trial to recollect the events and describe them to the court, his opinion was more equivocal:

Q. What about at this time, on today’s date, would she be able to give an account of what has happened last July?

A. Possibly, but given her verbal limitations, it could be quite difficult to understand her, but I believe that she would be able to give some account, some account of what happened to her.

[16] The record also includes the testimony of Ms. Miller, the complainant’s attending nurse. She testified that the complainant could verbalize “very well”. Testimonial competence, however, extends beyond mere verbal aptitude and incorporates a cognitive component: R. v. Marquard, at p. 236. Her assessment is also contradicted by Dr. Morley’s assertion that the complainant’s verbal skills were limited. It should be noted that Ms. Miller further testified that when asked simple questions, the complainant was generally responsive, but her answers were very basic and lacked any detail. When asked whether the complainant had, in the time since the incident, ever provided a narrative of the events in question to Ms. Miller, she explained:

A. Not in detail, no, like I say it was very, very simple and she never, ever, said names to me personally.

[17] What emerges from a review of the record is the description of a witness who, depending on the circumstances and the questioner, was able to provide at best only the most basic information about what had happened to her, in a manner that was extremely difficult to understand, and with little, if any, long term memory. The trial judge had an adequate opportunity to evaluate the complainant’s ability to communicate evidence about the incident. He found that she was incapable of doing so in any meaningful way. In light of all the evidence adduced on the voir dire, it would have been difficult to conclude that the complainant could have communicated evidence of the same quality at trial. My reservations are stronger still with respect to her ability to handle cross-examination, which is a more sophisticated intellectual exercise than examination-in-chief. To require the Crown to call the complainant before the court in these circumstances, only to confirm her limited ability to convey evidence, would have been demeaning and traumatic to her. As the trial judge pointed out, the victim lived under very restricted and supervised conditions. She could not look after herself (ruling on voir dire, at p. 4). She was also afraid to leave the hospital grounds. The trial judge even wrote that she had “to be coaxed . . . with treats by staff to persuade her to go out for a drive or an outing with other patients” (reasons for conviction, at p. 8). Moreover, Barry J. referred to Dr. John Morley’s testimony. Dr. Morley had said that it was not feasible for the victim to leave the hospital (reasons for conviction, at p. 10). This evidence supports the conclusion that the victim would suffer a substantial trauma from leaving the hospital or from any other kind of change in her immediate surroundings. This trauma would be especially acute, if she were to be faced with the formal atmosphere of a courtroom and asked to relate incidents which happened years ago. Given her communication difficulties and the apparent limitations, if not absence, of her long time memory, it may readily be inferred that calling her as a witness would have merely confirmed what is already clear from the record the trial judge had before him. It would have also deprived her of that degree of respect that every disabled person is entitled to (see Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211, at para. 108, per L’Heureux-Dubé J.).

III. The Objections to the Use of the Expert Evidence and the Video to Establish Necessity

[18] Justice Binnie contends that the trial judge erred in considering the testimony of Ms. Miller and Doctors Gillespie, Morley and Parsons, as in his view, it failed to meet the necessity criterion for the admission of expert evidence in R. v. Mohan, [1994] 2 S.C.R. 9. To satisfy the necessity requirement, the information provided by the expert must be outside the ordinary knowledge and experience of the trier of fact: R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 46 and 57, per Major J. (also para. 21, per McLachlin C.J., dissenting on the merits but not on this point); R. v. Mohan, at p. 23. Testimonial competence, my colleague maintains, is a matter directly within the ken of the trial judge and jury.

[19] However, as I explained before, the issues examined by Barry J. to determine necessity were broader than the mere competence to testify under s. 16 of the Canada Evidence Act. The trial judge had to assess the condition of the complainant as a whole. This involved matters which were outside his traditional expertise, and which required expert assistance. With this assistance, the judge was able to acknowledge the childlike mental condition of the complainant and her fragile emotional state in addition to her poor ability to sustain questioning. In the present case, the nurse gave factual evidence about the complainant’s character and condition. The doctors testified on the basis of both their observations of the witness and their professional experience in matters which fell squarely within their competence on questions that went to the medical and psychological condition of the witness. In these circumstances, the hearsay evidence was admitted and used in accordance with the relevant legal rules.

[20] In order to assess the condition of the complainant, the judge not only relied on the experts’ testimonies, but also on his observation of the video. This is the same video containing the statements by the complainant which the accused maintains are inadmissible. Binnie J. argues that this use of the video is contradictory because the video is, according to him, used both to prove that the complainant is “incompetent to testify” and to prove the truth of the statements it contains. This, again, undermines the broad nature of the inquiry undertaken by Barry J. in the context of hearsay and necessity. As we saw earlier, the case-law from this court favours a broad inquiry directed towards the whole condition of the complainant to determine not only whether she has the capacity to make statements, but also whether her emotional and psychological state would allow her to give testimony in court of some added value without risking demeaning or traumatizing her. This is an exercise in which the trial judge must balance the potential value of the evidence which may result from viva voce testimony against the potential prejudice to the witness.

[21] Video technology in such circumstances has become an appropriate instrument to evaluate the condition of a witness. In R. v. B. (K.G.), [1993] 1 S.C.R. 740, Lamer C.J. commented on the ability of this technology to convey the demeanor of witnesses (see pp. 792-93). With the proper equipment, provided that the tape has not been tampered with, it recreates a sense that the witness is present and allows her to be observed (ibid.). Indeed, it is known that the use of the technology of videos and video conferencing is spreading through the justice system as an acceptable substitute for the physical presence of counsel and sometimes of parties or witnesses in the courtroom. In this case, it allowed the judge and opposing counsel to observe the witness and her behaviour. Moreover, the respondent did not dispute the reliability of the video. It complemented reliably the information received from witnesses heard by the judge.

IV. The Need for Direct Evidence of Prejudice to Witness

[22] In cases involving young children or people with mental disabilities who are mentally assimilable to young children, neither direct evidence of the trauma nor the compulsory attendance of the witness in order to demonstrate it should become a requirement. The infringement of the witness’s right to the preservation of her dignity and integrity may be inferred from the circumstances of the case. McLachlin J. in R. v. F. (W.J.), underscored the need for a sensitive and practical approach to those matters. While assessing the requirement of necessity, she held that courts should avoid preordained classifications. Instead, while circumstances warrant, they must look at the whole environment and use all the facts they already know. At paras. 36-37, she wrote:

Necessity 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.

There 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.

This prudent approach should be used in the case of witnesses like the complainant who have the mental age of such a child. The absence of direct evidence should not lead courts to presume the absence of trauma nor that the experience would not adversely and painfully affect a victim like the complainant. The law in this area does not include any inflexible rule requiring courts to drag witnesses into the courtroom in cases where all the known circumstances indicate they will be unable to testify usefully. Such a situation was foreseen by McLachlin J. in R. v. F. (W.J.), at para. 41:

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.

[23] Moreover, in R. v. F. (W.J.), at para. 37, the Court approved a passage from a decision of the Quebec Court of Appeal which held admissible some out-of-court statements notwithstanding the unavailability of extrinsic evidence on the test of necessity (see R. v. P. (J.) (1992), 74 C.C.C. (3d) 276, aff’d [1993] 1 S.C.R. 469). At the time, the Quebec Court of Appeal had held at p. 281:

[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.

[24] Brossard J.A.’s comments, in his concurring reasons, are also relevant to the issue, as they underline the dangers of a rigorous procedure that fails to take account of the circumstances and conditions of the witness (at p. 282):

[translation] The young age of the victim constitutes in my opinion one of the circumstances which may demonstrate, in the absence of any other formality, necessity which justifies hearsay evidence which would otherwise be inadmissible.

. . . [it is not] necessary to bring her before the court in order for the trier of fact to note this physically and materially.

It seems to me that some things are so obvious that they dispense with a rigorism which may be both unhelpful and traumatic for a child of such age.

[25] It is true, as pointed out in Binnie J.’s reasons that in R. v. F. (W.J.) the victim was called to be a witness. It should be remembered, though, that the victim was older than the mental age of the present complainant. He was five years old at the time of the crime and almost seven during the trial. Moreover, in the Quebec case, P. (J.) which was approved in R. v. F. (W.J.), an almost four-year-old child was not called to the witness box. More important than the discussion of the age is the recognition both in R. v. F. (W.J.) and P. (J.) that, in some cases, even if as a general rule the judge should hear the witness in the case, some situations may arise where the attendance of the witness in court is unwarranted and unnecessary. The trier of fact must then assess the necessity and the reliability of the out-of-court statements offered in evidence by the prosecution. Both the necessity and reliability requirements were met by the evidence considered by the trial judge.

V. Conclusion

[26] This Court has without exception assumed a posture of deference toward a trial judge’s assessment of testimonial capacity. As McLachlin J. admonished in R. v. Marquard, at p. 237, “[m]eticulous second-guessing on appeal is to be eschewed.” The majority of the Court of Appeal engaged in just such a re-evaluation of the record and interfered too readily with the trial judge’s findings. The trial judge was in a superior position to assess the expert testimony, which obviously confirmed his own observation of the complainant’s abilities during her interview with Sergeant Ryan. In my view, the trial judge’s decision to admit the hearsay evidence manifests no palpable error.

[27] I would accordingly allow the appeal and restore the respondent’s conviction.

The judgment of Major, Bastarache, Binnie and Arbour JJ. was delivered by

[28] Binnie J. – This appeal tests the limits of the principled hearsay exception that allows the Crown in exceptional circumstances to lead the out-of-court evidence of a complainant at a criminal trial without having him or her present in court and available for cross-examination by the defence.

[29] In this case, the complainant in a kidnapping and sexual assault case was a mature woman who had suffered since birth from Down’s syndrome. She was considered mildly to moderately retarded and had been in institutional care for almost 20 years. Expert evidence was called to establish that her mental development was equivalent to that of a three- or four-year-old child and that her memory of events was poor. Her response to even the simplest questions was said to be not very coherent. The complainant herself was never called into the presence of the trial judge so that these attributes could be verified even though she was available and there was no suggestion that she would suffer any trauma or other adverse effect by appearing in court. Instead the court received evidence of out-of-court statements that she had earlier made to the police and to a doctor.

[30] A majority of the Newfoundland Court of Appeal concluded that there was no proper evidentiary basis to permit the trial judge to admit the complainant’s out-of-court statements. A new trial was ordered, Wells C.J.N. dissenting. In my view the majority view was correct and the Crown’s appeal should be dismissed.

I. Facts

[31] About 7:00 p.m. on July 15, 1994, the respondent drove to the Waterford Hospital, a psychiatric hospital in St. John’s, and was seen talking to a female resident of the hospital who then brought the complainant to his car. James Barry, a psychiatric nursing assistant at the hospital, observed these events from a distance of about 200 feet. He shouted at the respondent and the female resident but neither of them acknowledged the shouts. Mr. Barry testified he saw the female resident grip the complainant, seat her in the car and lift her knees and shut the door. He saw the respondent reach over the seat and lock the door. The respondent was observed giving the female resident $20. Mr. Barry reported the incident to his supervisors who called the police. Despite a search effort it took over seven hours to find the complainant. When she was found, both she and the respondent were still in the same car, now located in a remote coastal area at about 2:35 the next morning.

1. Complainant’s Physical Injuries

[32] The police arrested the respondent. On driving the complainant back to the Waterford Hospital, the constable noted her shorts were on backwards, her underpants were hanging over the top of her shorts and she had bruises on her left cheek and left hand. There were scratches on her arms and legs. Subsequent examination did not disclose any semen or sperm on the complainant or on her clothes.

2. Complainant’s Out-of-Court Statements

[33] The complainant made statements to police at the time of her being found, as well as to the doctor who first examined her. She repeatedly pointed to her injuries and stated “Man did it, bad man, man in car, patient”. Police also conducted a videotaped interview the following day. She was questioned for 15 minutes in the presence of two nurses who had known and worked with her. She was asked about the marks on her hands, arm and face to which, in halting broken sentences, she replied that a man “in handcuffs” did it and that he should be “put in jail”. She said that it happened “last night” and that he was wearing glasses and a black hat. She also communicated the facts that he scratched her in the car and that he smacked her.

3. Trial Evidence

[34] The case was tried by a judge sitting alone. He heard from a number of fact witnesses, concluding with Ms. Marlene Miller, a psychiatric nurse at the Waterford Hospital who had known the complainant for about 10 years. Latterly she was responsible for coordinating all of the complainant’s care. She described the complainant’s personal habits, medications and mental abilities in some detail. Of particular relevance are the following questions and answers:

Q. What about her responsiveness to questions?

A. She could respond, you know, like if you asked her if she was hungry, yes, but stuff like to get details, she didn’t give a lot of details of where she’d been or what she did, mostly only one sentence answers.

Q. Without getting into what was said, did you at any time, attempt to discuss with [the complainant] what had happened to her on that weekend?

A. Yes.

Q. Were you able to determine what had happened without getting into exactly what was said, were you able to–

A. Yes.

Q. Was that in the company of anybody else?

A. I’m sure it probably was at times, there were actually a couple of times that she brought it up but it wasn’t like in a lot of detail, you know, it was just simple sentences but it left no doubt.

[35] At the conclusion of Nurse Miller’s testimony, defence counsel indicated that he would oppose a Khan application (R. v. Khan, [1990] 2 S.C.R. 531) to substitute the complainant’s out-of-court statements for her direct testimony. His position was that the out-of-court statements were unreliable and the Khan procedure was unnecessary in light of the complainant’s availability to testify in person.

4. The Voir Dire

[36] Crown counsel advised the court that the complainant had a mental disability and was “unable to communicate” within the meaning of s. 16 of the Canada Evidence Act, R.S.C. 1985, c. C-5. Counsel also advised that she had earlier made out-of-court statements to a doctor and a police officer, some of which had been videotaped and all of which the Crown would apply to have admitted without calling the complainant. The Crown called Dr. Francis Gillespie as its first witness on the voir dire. Dr. Gillespie is a psychiatrist who had been associated with the Waterford Hospital for 32 years. The complainant was not his patient and he had never before “had any form of conversation with her”. He interviewed her on one occasion a few days before trial “to assess her ability to give evidence in court”. He concluded that she was “incoherent” about the matters in issue:

Q. Did you attempt to question [the complainant] at all about the matter before the Court?

A. Yes I did. I asked her did a man take you from the hospital and do something to you and her response to that was totally incoherent.

[37] Dr. John Morley, a general practitioner who had known the complainant for about six years, had direct care of her at the Waterford Hospital for about one year prior to these events, and indirect supervision of her medical care for three or four years before that, had a different view.

A. I think at that time she would have been - I don’t know how to put this - as well able to give a version of events as she would have been at any other time.

Q. What about at this time, on today’s date, would she be able to give an account of what has happened last July?

A. Possibly, but given her verbal limitations, it could be quite difficult to understand her, but I believe that she would be able to give some account, some account of what happened to her.

[38] Dr. Wanda Parsons, the family physician who had examined the complainant after the alleged assault testified:

Q. Were her statements coherent?

A. Yes.

[39] None of the doctors suggested that the complainant would suffer trauma or other adverse effects from appearing in court.

[40] Subsequently, the police officers were called in the voir dire to give evidence of the complainant’s out-of-court statements.

[41] The trial judge did not consider it necessary to have the complainant called. He preferred the opinion of Dr. Gillespie and admitted the out-of-court statements. The respondent was convicted of kidnapping, acquitted of sexual assault, but convicted of assault causing bodily harm. He was sentenced to three years and nine months (after taking into account nine months of pre-trial custody).

II. Relevant Statutory Provisions

[42] Canada Evidence Act, R.S.C. 1985, c. C-5

16. (1) Where a proposed witness is a person under fourteen years of age or a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and

(b) whether the person is able to communicate the evidence.

(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

(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, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

III. Judicial History

1. Supreme Court of Newfoundland, Trial Division

[43] Barry J. accepted the opinion evidence that the complainant could not meet the requirements for giving evidence under oath or giving unsworn evidence. He found that her videotaped evidence was necessary because there was no other means of obtaining the information she possessed about the incident. He accepted the evidence of Dr. Gillespie that she was not fit to be sworn and that she would be incapable of giving intelligible evidence in court and that she would not now be able to recall the incident with any accuracy.

[44] The respondent’s action in taking the complainant from the hospital was tantamount to taking her against her will. This was an abduction and hostage taking and Barry J. was satisfied beyond a reasonable doubt that the charge had been proven.

[45] Barry J. found that while the evidence did not sustain the charge of sexually assaulting the complainant and causing her bodily harm, it was clear that the respondent was guilty of the lesser and included offence of assault causing bodily harm.

2. Newfoundland Court of Appeal (1999), 175 Nfld. & P.E.I.R. 89

(i) Green J.A.

[46] Green J.A. noted that the normal procedures for determining whether a person meets the tests imposed by s. 16 of the Canada Evidence Act involve a direct examination by the trial judge to determine whether the person is able to communicate the evidence and understands the nature of an oath or solemn affirmation. Here the judge had relied upon the observations and opinions of others as to the complainant’s abilities. Green J.A. pointed out that it was important not to make a stereotypical assumption that, because a person suffers from a mental disability and has difficulty in expressing himself or herself, he or she is disqualified from testifying. Green J.A. found that the trial judge had misapprehended Dr. Gillespie’s evidence, had erred in failing to make his own analysis of the narrative capacities of the complainant, and had erred in choosing to defer without seeking to question the complainant herself, to the opinion of Dr. Gillespie.

[47] Green J.A. recognized that as a general rule an appellate court ought to show deference to evidentiary rulings which involve the discretionary weighing of various factors before determining admissibility of evidence but concluded in the circumstances of this case, in light of what he considered to be the misapprehension of the evidence and errors in principle, that appellate deference to the judge’s ruling was not warranted. He applied the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, to the kidnapping charge but not to the assault charge. In the result, he allowed the appeal and quashed the conviction with respect to assault causing bodily harm and remitted that matter for a new trial. He dismissed the appeal with respect to the kidnapping charge.

(ii) O’Neill J.A.

[48] O’Neill J.A. agreed with Green J.A. that the trial judge erred in the voir dire in not having the complainant called to testify. The trial judge had misapplied and mischaracterized the evidence upon which he relied to conclude that the complainant was incapable of giving evidence. In his view, the Crown had not satisfied the onus of demonstrating that the verdict would necessarily have been the same had the out-of-court statements been excluded. He would have allowed the appeal with respect to both charges, quashed the convictions and ordered a new trial.

(iii) Wells C.J.N. (dissenting)

[49] Wells C.J.N. accepted the trial judge’s conclusion that the complainant did not understand the nature of an oath or solemn affirmation and she was unable to communicate information in any coherent or understandable manner. An appellate court should not, without good reason, interfere with those findings absent palpable error. There was no such palpable error here. The out-of-court statements of the complainant made very shortly after the incident exhibited sufficient circumstantial guarantee of trustworthiness to make them reliable for purposes of admissibility under the Khan exception to the hearsay rule. Wells C.J.N. would have dismissed the appeal with respect to both the kidnapping charge and the assault charge.

[50] The defence did not seek to cross-appeal the kidnapping conviction based on O’Neill J.A.’s dissent. The respondent had completed his term of imprisonment. The only issue before us, therefore, is the Crown’s appeal against the setting aside of the assault verdict.

IV. Analysis

[51] While in this country an accused does not have an absolute right to confront his or her accuser in the course of a criminal trial, the right to full answer and defence generally produces this result. In this case, unusually, the Crown precipitated an inquiry under s. 16 of the Canada Evidence Act not for the purpose of establishing the testimonial competence of “a proposed witness”, namely the complainant, but to lay an evidentiary basis to keep her out of the witness box. Having satisfied the trial judge entirely through expert evidence that the complainant neither understood the nature of an oath nor could communicate her evidence, the Crown used the voir dire as a springboard to establish the admissibility of hearsay evidence of her out-of-court statements under the principles established in Khan.

[52] This procedure raises two distinct though related issues, firstly the admissibility of the expert evidence at the voir dire, and secondly the admissibility of the complainant's out-of-court statements at the trial. In my view, these issues ought to have been resolved in favour of the respondent, as held by the majority judgment of the Newfoundland Court of Appeal, for the following reasons:

1. The expert evidence was improperly admitted at the voir dire. Trial judges are eminently qualified to assess the testimonial competence of a witness. The trial judge, after all, was to be at the receiving end of the complainant’s communication, and could have determined whether or not she was able to communicate her evidence to him. If she had been called and it became evident that the trial judge required expert assistance to draw appropriate inferences from what he had heard her say (or not say), or if either the defence or the Crown had wished to pursue the issue of requiring an oath or solemn affirmation, expert evidence might then have become admissible to assist the judge. At the time the expert testimony was called, it had not been shown that expert evidence as such was necessary, and the testimony of Drs. Gillespie, Morley and Parsons was therefore inadmissible: R. v. Mohan, [1994] 2 S.C.R. 9.

2. Consequently, the trial judge erred in ruling at the conclusion of the voir dire that the complainant's out-of-court statements would be admissible at trial. Having dispensed with hearing from the complainant, and the expert medical testimony having been improperly admitted, the trial judge had no admissible evidence on which to exercise a discretion to admit the complainant’s out-of-court statements.

3. Even if the expert medical evidence were to be admitted, and accepting the trial judge's conclusion that the out-of-court statements were “reliable” under the first branch of the Khan requirements, the trial judge still erred in the circumstances of this case in finding the admission of out-of-court statements to be “necessary” without first hearing from the complainant.

4. Inadmissibility of the Expert Evidence

[53] At the threshold stands the question of why expert evidence was admitted in the first place to establish the competency of a witness, a task which is specifically assigned by s. 16 of the Canada Evidence Act to the trial judge. In R. v. Abbey, [1982] 2 S.C.R. 24, the Court adopted as correct at p. 42 the statement that “[i]f on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary”.

[54] The key and undisputed facts of this case are that the complainant was available to testify and there was no suggestion by anybody that she might be harmed thereby. She was not called simply because the Crown made the tactical decision to proceed without calling her. The medical experts were not called to assist the judge to interpret what he had seen or heard from the complainant in the witness box, but in substitution for any such opportunity of direct observation.

[55] The special role of the expert witness is not to testify to the facts, but to provide an opinion based on the facts, to assist the trier of fact to draw the appropriate inferences from the facts as found “which the judge and jury, due to the technical nature of the facts, are unable to formulate” (Abbey, supra, at p. 42).

[56] Section 16 of the Canada Evidence Act requires the judge to determine whether a proposed witness “understands the nature of an oath or solemn affirmation and . . . is able to communicate the evidence”. McLachlin J. (as she then was) pointed out in R. v. Marquard, [1993] 4 S.C.R. 223, at p. 236, that the phrase ‘communicate the evidence’ in s. 16 of the Canada Evidence Act “indicates more than mere verbal ability”. McLachlin J. there set out on behalf of a majority of the Court, the elements of the s. 16 test which she equated with an inquiry into testimonial competence, namely:

... (1) the capacity to observe (including interpretation); (2) the capacity to recollect; and (3) the capacity to communicate.... The judge must satisfy him- or herself that the witness possesses these capacities. Is the witness capable of observing what was happening? Is he or she capable of remembering what he or she observes? Can he or she communicate what he or she remembers? The goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable.... Generally speaking, the best gauge of capacity is the witness's performance at the time of trial.

McLachlin J. added at p. 237:

[T]he test outlines the basic abilities that individuals need to possess if they are to testify. The threshold is not a high one. What is required is the basic ability to perceive, remember and communicate. This established, deficiencies of perception, recollection of the events at issue may be dealt with as matters going to the weight of the evidence. [Emphasis added.]

[57] Whether a complainant “is able to communicate the evidence” in this broad sense is a matter on which a trial judge can (and invariably does) form his or her own opinion. It is not a matter “outside the experience and knowledge of a judge or jury” (Mohan, supra, at p. 23). It is the very meat and potatoes of a trial court's existence.

[58] Mohan required a demonstration of practical necessity as a precondition to reception of expert evidence because of the concern “that experts not be permitted to usurp the functions of the trier of fact” (p. 24). In my view, it was the trial judge not Dr. Gillespie who was familiar with the exigencies of a criminal trial and who had the expertise to determine what testimonial assistance the complainant might be able to offer in that context. His decision ought to have been based on direct observations of the complainant, unless excused by evidence that she would be traumatized by an appearance in court even for that limited purpose, or other exceptional circumstances.

[59] It is true, as my colleague LeBel J. points out at para. 19, that Khan's double-barrelled inquiry into necessity and reliability is not restricted to testimonial competence. My colleague writes:

The trial judge had to assess the condition of the complainant as a whole. This involved matters which were outside his traditional expertise, and which required expert assistance. With this assistance, the judge was able to acknowledge the childlike mental condition of the complainant and her fragile emotional state in addition to her poor ability to sustain questioning. [Emphasis added.]

[60] The point, I think, is that trial judges are able to assess such matters as “childlike mental condition” or “poor ability to sustain questioning” without expert assistance. On the other hand, if the Crown had wished to put forward an alleged “fragile emotional state” as a reason for the complainant not to testify, it was certainly at liberty to do so, and to call expert evidence in that regard. But it did not. There was no evidence led that the complainant would risk being traumatized or otherwise suffer adverse consequence by an appearance in court.

[61] The expert evidence was directed entirely to the issue of testimonial competence. On that point, as stated, there was no valid basis laid for the reception of expert testimony.

[62] I accept that circumstances might have arisen in this case where the admission of expert medical evidence on the subject of the complainant’s testimonial competence would have been justified. Had the complainant been called, and had it become evident that some expert assistance was required to explain her behaviour, consideration might have been given at that stage to supplementing her testimony (or the lack of it) with expert medical opinions. However, on the facts of this case it was premature unless and until more direct avenues of getting at the truth had been tried and failed.

[63] Once the expert evidence is excluded under the Mohan principle, there was no other evidence on the voir dire to support the admission of the out-of-court statements under the Khan principle. This point is sufficient to dispose of the appeal. However, as the argument in the appeal related principally to the hearsay exception in R. v. Khan, and R. v. Smith, [1992] 2 S.C.R. 915, it is appropriate to deal with that ground of appeal as well.

2. Inadmissibility of the Out-of-Court Statements

[64] Under the Khan exception to the hearsay rule, the Crown was required to establish that the admission of the complainant’s out-of-court statements was necessary and that the statements themselves were reliable. The admission of the hearsay only became necessary if the direct testimony of the complainant was unavailable. The issue, to repeat, is the availability of the testimony, not the availability of the complainant herself.

[65] For the purposes of this branch of the analysis, I will assume that the expert medical evidence was properly admitted and the issue is whether it justified admission of the complainant's out-of-court statement even though the Crown declined to call the complainant to lay the basis for its reception.

[66] The applicable principles were established in Khan and summarized by McLachlin J. (as she then was) in R. v. Rockey, [1996] 3 S.C.R. 829, at para. 20, concurring in the result, as follows:

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.... 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.

[67] Both branches of the test can be dealt with briefly.

(i) Reliability

[68] Threshold reliability is required for the admission of hearsay evidence, because the usual methods of testing truthfulness of the witness, cross-examination and observation of the witness are not available. The standard is not one of absolute reliability, as was explained in Smith, supra, and summarized by Major J. in R. v. R. (D.), [1996] 2 S.C.R. 291, at para. 34:

It is not necessary that the statements be absolutely reliable, but a circumstantial guarantee of trustworthiness must be established in order for the statements to be admitted. The statements will be inadmissible where the hearsay evidence is equally consistent with other hypotheses.

[69] In that case, the out-of-court statements of a child witness were held to be insufficiently reliable to be admissible.

[70] In the present case the complainant’s out-of-court statements, while of limited assistance, would likely have met the reliability test because of the several circumstantial guarantees of trustworthiness, including the lack of any real possibility of mistaken identity, the lack of any discernible motive to lie, and possibly a lack of sufficient mental capacity to try to do so. There would still have been an issue about her ability to perceive accurately, and to recall and recount faithfully. The expert evidence was of some assistance in this regard. It must be kept in mind that the trial judge’s gatekeeper function on the voir dire is only to apply a threshold test for admissibility. Whether the evidence is ultimately accepted as reliable is up to the trier of fact. I accept the trial judge's conclusion with respect to reliability.

(ii) Necessity

[71] In Rockey, supra, Sopinka J. (for the majority) held that because the evidence regarding the child witness’s competence to testify was equivocal, the out-of-court statements were not admissible on this basis. However, he further found that there was uncontroverted evidence that the child would be traumatized by giving evidence and decided that the out-of-court statements were necessary for that reason.

[72] The complainant in this case could have been examined before the trial judge in a format that would have attempted to put her at ease. The trial judge could have ensured that nothing, including questions put to her by opposing counsel, would be used to demean or embarrass her. It is possible that, as anticipated by Dr. Gillespie, the complainant might have been incoherent or otherwise unable to communicate whatever she recalled of the events in question. On the other hand, it is also possible that she might, as suggested by Dr. Morley, have been able to give “some account of what happened to her”. In the absence of any suggestion of potential trauma or other exceptional circumstances, I think the respondent was entitled to have this issue determined on the basis of the evidence of the complainant rather than on the conflicting opinions, however learned, of her various doctors.

[73] I accept that it was kinder to the complainant to excuse her from appearing at the trial. It is possible, as my colleague LeBel J. suggests at para. 12, that her appearance “would have served no real purpose”. But we do not know this. What we do know is that there were very serious accusations made against the respondent. He was confronted with evidence of her out-of-court statements taken in his absence and on which, of course, he could not cross-examine. As a result of the trial, he was sentenced to three years and nine months in jail in addition to the time already served. Compassion for the complainant must be balanced against fairness to the respondent.

[74] While the concept of necessity “must be given a flexible definition capable of encompassing diverse situations” (R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 796), it must nevertheless be established on the facts of each particular case. Wells C.J.N., in dissent, observed that the phrase “to communicate the evidence” in s. 16(1)(b) requires exploration of whether the witness is capable of perceiving events, remembering events and communicating events to the court. This is so, but absent special circumstances, the exploration should include hearing from the witness herself.

[75] The Khan principles of necessity and reliability were recently applied by a divided Court in R. v. F. (W.J.), [1999] 3 S.C.R. 569, where the hearsay evidence of a child complainant was admitted but not until after the child herself had entered the witness box and demonstrated an inability to answer questions about the events surrounding the sexual assault. Even at that, Lamer C.J. dissented on the basis that the trial court had not adequately pursued the reasons why the child appeared unable to provide her recollection of events.

[76] In this case, we are asked to take F. (W.J.) one step further. There was no attempt to seek the evidence directly from the witness/complainant even though there was no suggestion that she would suffer adverse effects from appearing in the witness box. No other explanation was given for her non-appearance. The Crown simply decided to relieve the trial judge of the burden of making his own decision, and left him to pick among the competing versions of her testimonial competence offered up by the medical experts.

[77] In my view, if the witness is physically available and there is no suggestion that he or she would suffer trauma by attempting to give evidence, that evidence should generally not be pre-empted by hearsay unless the trial judge has first had an opportunity to hear the potential witness and form his or her own opinion as to testimonial competence. I say generally because there may arise exceptional circumstances where a witness is available and not called and the out-of-court statements may be nevertheless admitted. The Court was careful not to close the door to this possibility in R. v. Hawkins, [1996] 3 S.C.R. 1043, at paras. 71-72; B. (K.G.), supra, at pp. 798-99; and Rockey, supra, per McLachlin J., concurring in the result, at para. 23. Green J.A. recognized that possibility in the majority judgment in this case (p. 111). The point is that there are no circumstances put in evidence here that would justify such an exceptional procedure.

3. Additional Arguments Put Forward by the Crown

[78] The Crown in written and oral argument makes several points in justification of the procedure that was followed. It says, first of all, that while there was no evidence that the complainant would suffer trauma, nevertheless the Court can infer the likelihood of something approaching trauma from the video and the nature of the events she was to be asked about. Her otherwise reclusive existence in the Waterford Hospital suggests an inability to cope with the outside world. The Crown submits that “it would have been simply a bit of a circus and a bit of a farce to have gone through the procedure of calling her as a witness simply to be complete in relation to form”, and “[i]t would have been, in effect, almost marking her as an exhibit simply for the purpose of bringing her into the Court and showing her to all sides”.

[79] Few complainants can welcome a courtroom appearance in a sexual assault charge, but there is no reason to think this complainant was more vulnerable than others on this account. If there was an issue about trauma, it ought not to have been left to inference. Psychiatric evidence was called specifically to address the necessity of having the complainant testify in person, and none of the doctors raised the issue of potential trauma. The onus was on the Crown to meet the Khan criteria for the hearsay exception. It was clear that trauma to a potentially vulnerable witness is an important consideration. No such evidence was called.

[80] Further, as Green J.A. pointed out, the Court should not be quick to leap to the assumption that a person with mental disabilities is not competent to give useful testimony. Trauma should not be presumed, not only because such a presumption would deprive the accused of the ability to observe and cross-examine the witness, but also because stereotypical assumptions about persons with disabilities should be avoided. For the same reason, I disagree with my colleague LeBel J. that we should assume that the complainant's appearance in the witness box would be demeaning or an “infringement . . . of her dignity and integrity” (para. 22). Persons with disabilities should not be underestimated.

[81] Secondly, the Crown argues that while it is undoubtedly good practice in most cases to call the witness to demonstrate incapacity, there is no hard and inflexible rule to that effect. In this case, an experienced trial judge heard conflicting evidence about the complainant’s ability to testify. While the expert psychiatrist Dr. Gillespie pronounced the complainant incoherent, Dr. Morley, the family doctor who had attended on the complainant directly and indirectly at the Waterford Hospital for the previous 4 or 5 years, had a different view, as did Dr. Parsons, who examined the complainant immediately after the events in question. The Crown says the trial judge was entitled to prefer the evidence of the psychiatrist over the evidence of the general practitioners.

[82] I agree, as stated, that there is no hard and inflexible rule that a complainant must be put in the witness box regardless of the circumstances. I also agree that an appellate court will not lightly interfere with an evidentiary ruling by a trial judge who has heard conflicting evidence at the voir dire and formed a conclusion as to whether evidence should be admitted. In this case, however, the trial judge misdirected himself on the threshold Mohan issue of whether the expert evidence was admissible at all on the then state of the record, and he further misdirected himself on the Khan issue of necessity by admitting the out-of-court video statements when the complainant was available and no sufficient reason was given for her non-appearance. Where, as here, the discretion was exercised on wrong principles, the decision will be set aside.

[83] The Crown maintains, thirdly, that even if the Court of Appeal was entitled to re-weigh and re-assess the evidence, it made errors in doing so. The Crown complains, in particular, that the Court of Appeal relied to some extent on the evidence of Nurse Miller, an attendant at the Waterford Hospital, on the issue of the complainant’s capacity to testify, even though Nurse Miller’s evidence was not called on the voir dire. The trial transcript shows that Nurse Miller’s evidence was heard just before the voir dire. In fact, it was her testimony that prompted defence counsel to pursue the issue of necessity in the voir dire.

Mr. Reid: However, after having a – heard the evidence of [the] last witness [Nurse Miller] and her indications that she has discussed the matter with the complainant and apparently, at least from what I understood from what she said, she – although maybe she did get a sketchy outline of some kind, apparently she did have some kind of an understandable conversation with this particular complainant. So I think the Crown should be required to establish both necessity and reliability in their Khan applications.

It is unnecessary, I think, for the respondent to rely on Nurse Miller’s testimony or for an appellate court to parse the conflicting interpretations of the other evidence. The principal concern with the voir dire has nothing to do with the trial judge’s assessment of the evidence that was given or his preference for one expert over another. The concern is with the evidence that was available but was not given. It comes down to the Crown's failure to pave the way for admission of the out-of-court statements either by calling the complainant to show that the testimonial competence she exhibited at the time of making the out-of-court statements had been lost, or by providing some other legally sound basis for excusing her non-appearance.

[84] Fourthly, the Crown says that the Newfoundland Court of Appeal in effect confused the purpose of an inquiry under s. 16 of the Canada Evidence Act (competency to testify) with the issue of necessity in the context of a Khan application (ability to testify about the particular events in issue at the trial). It is quite true that the Court’s test in Marquard, supra, and Rockey, supra, is that the relevant issue under s. 16 of the Canada Evidence Act is the general capacity and recollection of the witness, not the specific recollection of the events in question, which will be for the trier of fact to determine. Nevertheless, the point is that neither issue was adequately addressed in the voir dire because of the Crown’s failure to call the available complainant. The Crown argues that it was quite open to the respondent to call the complainant, but of course it was the Crown, not the respondent, that bore the onus of establishing the conditions precedent to the admission of her out-of-court statements.

[85] In the same vein, the Crown takes the position that the majority of the Newfoundland Court of Appeal confused “verbal ability” (Rockey, supra, at para. 25) with “the ability to communicate a description of the event”. The fact is, however, that neither ability was explored with the complainant.

[86] Fifthly, the Crown suggested in passing in oral argument that the trial judge was entitled to rely on the video made of the complainant’s evidence shortly after the events in question as evidence of her testimonial incapacity. It is contradictory to tender the video to establish simultaneously the truth of the complainant’s out-of-court declarations and her lack of testimonial competence to make such declarations in the first place. The video itself can afford no evidence of any subsequent deterioration in her recollection of the events or her ability to communicate them.

4. Application of the Curative Provision

[87] The application of the curative provision in s. 686(1)(b)(iii) of the Criminal Code was a matter of considerable argument before the Newfoundland Court of Appeal. The Crown took the position in this Court that the complainant’s evidence was not necessary to establish that she had suffered bruising and other injuries during the period of her abduction by the respondent. When she left Waterford Hospital there were no bruises. When she was found seven hours later in the respondent’s car she was severely bruised. The respondent offered the explanation that she had fallen while going to the bathroom in the bushes, but the expert evidence was that the injuries were not consistent with this explanation. Nevertheless the Crown appeal comes to us as of right based on the dissent of Wells C.J.N., and the Crown is limited to the grounds of the dissent. Wells C.J.N. was of the view that while there was evidence from which the trial court could have convicted for assault, he could not say that there was no reasonable possibility of a contrary conclusion, and he therefore agreed with his colleagues that s. 686(1)(b)(iii) did not apply to save the conviction. He says at p. 148:

However, the majority having agreed that the out of court statements ought not to have been admitted, I would agree that [the] application of s. 686(1)(b)(iii) should result in the appeal with respect to the assault charge being allowed but the appeal with respect to kidnapping charge being dismissed.

[88] There being no dissent on this ground, we are without jurisdiction to entertain that aspect of the Crown’s appeal.

V. Disposition

[89] For these reasons the judgment of the Newfoundland Court of Appeal should be affirmed and the Crown’s appeal dismissed.

Appeal dismissed, L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting.

Solicitor for the appellant: The Department of Justice, St. John’s.

Solicitor for the respondent: Newfoundland Legal Aid Commission, St. John’s.