ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-7542M
DATE: 20130321
BETWEEN:
GREGORY GEORGE MORRISON
Ross H. Thomson, for the Applicant
Applicant
- and -
CHARLENE ELIZABETH JOY TREMAIN
M. Jill Gamble, for the Respondent
Respondent
HEARD: March 20, 21, 2013
REASONS FOR DECISION ON VOIR DIRE
Conlan J.
[1] During the course of the direct examination of the Respondent, Ms Tremain, by her counsel, Ms Gamble, Ms Tremain testified that her son, Isaac, made the following comment to her while sitting at the kitchen table at their home some time during the first week of January 2013:
“I was sitting in Great Grandma’s chair and Dad wanted me to move and when I didn’t Dad hauled off and hit me”.
[2] After Ms Tremain asked Isaac where he was hit by his Dad, Isaac said the following, according to Ms Tremain:
“I got hit in the shoulder”.
[3] Present at the time, according to Ms Tremain, were her, Isaac, Ashleigh and Luke. Isaac allegedly said that the hit happened before Christmas.
[4] Counsel for Ms Tremain asks that the said alleged comments by Isaac to his mother be admitted for their truth, that is that Mr. Morrison hit Isaac in the shoulder.
[5] As Isaac is not an anticipated witness at trial, the said evidence from Ms Tremain is hearsay and presumptively inadmissible.
[6] The only evidence on the voir dire was that of Ms Tremain, including a brief cross-examination by counsel for the Applicant, Mr. Morrison.
[7] Ms Tremain bears the burden of establishing on a balance of probabilities that necessity and reliability have been established.
[8] Although Isaac is only nine years old born March 12, 2004, I am not satisfied on balance that it is necessary to admit the alleged hearsay utterances for the truth of the facts asserted therein. Given the age of Isaac and his maturity and intelligence, he could be called as a witness at trial. I am not suggesting that should be done, however, this is not a case where I can safely assume that testifying with regard to the alleged hitting incident would be damaging to Isaac. There is no evidence in that regard. Necessity means reasonably necessary. It does not mean absolute necessity, however, this is not a case where Isaac is unavailable to testify. Nor is it a case where I can safely conclude that Isaac either cannot or should not be allowed to testify for some reason.
[9] In the circumstances, I need not assess the reliability criterion.
[10] My ruling is that the hearsay evidence of the two alleged comments made by Isaac to Ms Tremain are inadmissible as proof of the facts asserted therein. In other words, that evidence is inadmissible for the proof that Mr. Morrison hit Isaac.
[11] The evidence is admissible for the fact that the statements were made by Isaac to his mother.
Original signed C.J.C.
Conlan J.
Released: March 21, 2013
COURT FILE NO.: 10-7542M
DATE: 20130321
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GREGORY GEORGE MORRISON
Applicant
- and -
CHARLENE ELIZABETH JOY TERMAIN
Respondent
REASONS FOR DECISION
ON VOIR DIRE
Conlan J.
Released: March 21, 2013