SUPERIOR COURT OF JUSTICE
Information no. CR-13-364
2014 ONSC 3243
HER MAJESTY THE QUEEN
v.
J.R.
D E C I S I O N
BEFORE THE HONOURABLE JUSTICE M.Z. CHARBONNEAU
on April 22, 2014, at L’ORIGNAL, Ontario
APPEARANCES:
E. Quinn Counsel for the Crown
N. Ferland Counsel for J.R.
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
REASONS FOR DECISION
1
Legend
[sic] – Indicates preceding word has been
reproduced verbatim and is not a transcription
error.
(ph) – Indicates preceding word has been spelled
phonetically.
Transcript Ordered:. . . . . . . . . . . . . April 22, 2014
Transcript Completed:. . . . . . . . . . . . May 7, 2014
Approved by Charbonneau, J.:. . . . . . . . May 28, 2014
Ordering Party Notified: . . . . . . . . . . May 29, 2014
TUESDAY, APRIL 22, 2014
CHARBONNEAU, J.: (Orally)
I will give my reasons for the production of certain of the statements made by O.P. As I indicated, I advised counsel so that they could prepare accordingly what I intended to do this morning so I gave them a heads-up in an endorsement provided on 15th of April but here are more elaborate reasons why.
INTRODUCTION
The Crown brings an application for an order admitting in evidence at the trial of the accused, certain alleged out of court statements made by the complainant O.P. for the truth of their content.
J.R. is charged with sexual assault on O.P., touching O.P. for sexual purpose, and inviting O.P. to touch him for a sexual purpose.
A Voir Dire was held to determine whether the statements of O.P. were admissible notwithstanding that they constitute inadmissible hearsay on the basis that the evidence from the complainant’s statement are necessary and reliable.
THE EVIDENCE AT THE VOIR DIRE
O.P.
She testified that she is five years old. She stated that J.R. had put his finger on her private but she did not remember when this had happened. They were sitting on a couch. Her mother and father were not present. J.R. and his wife C. were present. He put his finger inside and it hurt.
She said she is sure that J.R. only did this once. She does not remember anything being said at the time. She told her mommy and daddy about it and what she told them was the truth. She testified that both had their clothes on when it happened.
In cross-examination she indicated it happened before Christmas. Outside it was kind of cold but somewhat warm. She said that J.R. touched her “gina”.
S.B.
S.B. is the mother of O.P. O.P. was born on […], 2009. She testified that in October 2012, while she was giving O.P. a bath, O.P. told her that it hurts when she urinates. O.P. told her that J.R. had touched her gina and put his num-num in her mouth and in her hand and that she had squeezed his num-num. O.P. cried.
That same day a CAS worker was coming to visit S.B.’ residence and she told the worker what O.P. had told her. She did not call the police at that time because the CAS worker told her she would investigate the matter first.
S.B. also testified that O.P. likes to draw and from time to time would show her a picture of a man with a penis. O.P. told her that that was a drawing of J.R.. She drew pictures of other men but without a penis. When she brought her a drawing of a man with a penis she concluded it was J.R., even if O.P. did not say so because O.P. had drawn the man with a penis.
Several pictures were shown to her and she identified them as drawings made by O.P. The drawings show a rough outline of a person and enclose a straight line up and down between the person’s legs.
S.B. testified that O.P. often repeated the same things to her about J.R. putting his penis in her mouth. This in fact occurred again recently.
She testified that she went to the police in early January 2013. At the end of January, O.P.’s paternal grandmother told her that O.P. had told her about the incident with J.R.. She testified that O.P. had no contact with the accused after she had first told her about the incident in October of 2012.
In cross-examination, S.B. indicated that she had never heard O.P. use the term num-num before. She has no specific recollection of O.P. mentioning the incidents with J.R. between the first time in October and December 2012.
She had possession of the drawings in January 2013. The third drawing entered as Exhibit C she does not know who is portrayed. It could be J.R. although the person is not shown with a penis like in the other photos. She indicated that she did not use baby language with O.P. According to her, O.P. would not use the word “adult” and she would not be able to say “blood” or “penis”.
Finally, she testified that it had always been rocky between her and the paternal grandmother and at one point the grandmother had reported her to CAS.
C.P.
She is O.P.’s paternal grandmother. She testified that in October 2012 O.P. was playing with a Barbi and she heard O.P. saying, “This is what girlfriends and boyfriends do.” At the time, she was using the dolls to mimic sexual intercourse.
On December 31st, 2012, for the first time, O.P. told her: “J.R. touched my vagina.” O.P. started crying. With the help of a doll, O.P. showed her, pushing her finger between the thighs of the doll. O.P. said, “He put blood or something in my mouth”. O.P. appeared to be scared.
She testified that she did not say anything to obtain the disclosure from O.P. O.P. repeated the same thing again a few days later. She added at that time – O.P. added at that time, “He put his penis in my vagina and in my mouth.”
O.P. made a drawing showing a penis and a hole. She identified the drawing as Exhibit D. O.P. was not asked to do any drawing, she testified. She did so on her own. At the end of January 2013 during a visit between January 25th and January 29th, O.P. broke down emotionally while telling her J.R. had put his penis in her mouth. O.P. was hitting her head with her hands.
She testified that O.P. further indicated to her that C. and J.R. asked her to kiss them like boyfriend and girlfriend and that O.P. had mimicked an open mouth kiss.
C.P. confirms that she had a tumultuous relationship with O.P.’s mother whom she accused of trying to always try to prevent her from visiting with O.P. and she had called CAS to report on S.B.. She testified that she, herself, had never used baby language with O.P. O.P. would use vagina for both boys and girls.
In cross-examination she corrects her testimony by saying that on December 31st, 2013 O.P. told her, “He touched my vagina.”; and said well she could have said “gina”. She admits that she is not sure that the drawing she was shown and that are filed are the ones that she actually saw. There were many and they are all very similar.
K.C.
He is the boyfriend of S.B.. He indicated that approximately one to two hours after O.P. had made the disclosure to his mother, O.P. told him, “J.R. put his num-num in my mouth” and that she touched his num-num and “J.R. touched my vagina.”
O.P. had been shouting and crying ever since she had come out of the bathroom. O.P. makes the same type of statements often, he testified. He indicated she acts normal and not scared when she makes those kinds of statements. She’s just playing and she makes the statements.
K.C. is the son of C. who is the girlfriend of the accused. According to him, O.P. always used the word num-num to say penis. He does not know where she picked up that expression.
The Crown introduced Exhibit F which is a video statement given by O.P. on January 3rd, 2013 at the police station. O.P., S.B., a CAS worker, K.C., and C.P. had been asked to attend at the police station.
At the police station the video statement was taken of O.P., in the presence of Detective Donnelly, S.B., and the CAS worker. In the statement, O.P. answers certain questions put to her by Detective Donnelly. O.P. tells him that J.R. touched her. That she had her clothes on but J.R. had no pants, not shirts, and no underwear. She answers that she doesn’t know with what he touched her and that it happened three times. She indicates she told her Mom and Nana. Nana is C.P.. She indicates she does not like J.R.. When asked how she feels about all of this she does not know how she feels. She doesn’t feel angry, nor sad. She believes J.R. is sorry.
When pressed further for details, she refuses to answer any questions and starts talking about other things. She eventually sits on her mother’s lap.
Finally, the adults decide to insist and she adds to their questions. J.R. touched on her gina and not in her gina, in answer to their specific questions. And she indicates that all three times happened after Christmas, and that the last time was yesterday, and that he had specifically used his left hand and she ends up by saying that J.R. told her not to tell but she did. She told her father.
THE LAW
In a very recent decision of the Ontario Court of Appeal in The Queen v. Badgerow, (2014) ONCA 270, the Court reviewed the concerns and dangers with hearsay evidence and how with the principled approach the Courts have attempted the alleviate those concerns in order to permit the introduction of relevant and reliable evidence which could otherwise be lost and then, and if so, compromise the search for the truth. In that decision, the Court of Appeal indicates at paragraph 98, and I quote:
[98] The Supreme Court noted in Baldree, at para. 44, that the courts have identified a variety of concern about hearsay, referred to as the “core hearsay dangers of perception, memory, narration, and sincerity.” At para. 32, Fish, J. explained:
First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination.
[99] These concerns have informed the principled approach. That approach developed in a line of decisions of the Supreme Court of Canada, beginning with Khan, recognizes that “a rigid application of the exclusionary rule would result in the unwarranted loss of much valuable evidence”... It permits hearsay evidence not falling within a traditional exception to be admitted, provided its admission is necessary and it has sufficient indicia of reliability or there are sufficient means to test the evidence to compensate for the inability to cross-examine.
Turning to the first element then of necessity. In the same decision at paragraph 136, the Court of Appeal notes:
[136] The necessity requirement is based on the societal interest in getting at the truth. Hearsay is admitted, despite the inability to cross-examine the maker, because it is the only way in which the evidence can be obtained.
In the case of the testimony of a young child, hearsay statements may be held necessary even if the child is available to testify. For example, in The Queen v. Smith [1992] 75 C.C.C. (3d), page 257 at 271, Chief Justice Lamer states, and I quote:
As indicated above, 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 paragraph 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.
Having said that however, the Court of Appeal makes is clear in Regina v. Robinson (2004) 189 C.C.C. (3d) page 152 at paragraph 44 that the Crown always has the onus of proving necessity even in cases involving child evidence. In that decision, Justice Doherty speaking for the Court indicates:
There is no presumption of necessity where the out-of-court statement is made by a child. The Crown bears the onus of establishing that it is reasonably necessary to receive the out-of-court statement to obtain a full and frank account of the child’s version of the relevant event.
In the case of child evidence, it is now well established that necessity may be proven by the Crown if the Crown proves on a balance of probability that the statements are necessary to obtain a meaningful account. In the case of The Queen v. Rockey (1996), 110 C.C.C. (3d) page 481 at page 490, the Supreme Court of Canada states, and I quote:
It may be that necessity can also be established where the child testifies, if the trial judge is satisfied that the admission of the out-of-court statement is reasonably necessary in order to put a full and frank account of the child’s version of the relevant events before the jury.
Finally, the case law also teaches us that the criteria of necessity and reliability work in tandem: if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed: see, for example, R. v. Baldree 2013 SCC 35 at paragraph 72.
RELIABILITY
And I turn to the question of reliability. Determining reliability of a statement requires examining a number of key areas, namely:
Is the narration of the statement clear or is it ambiguous?
Is the statement sufficiently proven to enable the trier of fact to determine the content of the declaration?
The perception, memory, and sincerity of the declarant must be evaluated. For example, is there any evidence that the declarant misperceived the conduct complained of or intended to mislead those to whom she mentioned it?
Are there circumstantial guarantees of reliability?
Is there evidence corroborating the declaration or evidence raising serious issues as to the credibility of the statement? However, the fact that the same statement is repeated to different people is not corroborative of its truth.
It is important to remember that at this stage, the judge determining the admissibility of the statement does not determine whether the trier of fact will ultimately rely upon the statement as true. At the admissibility stage, the judge is only concerned with threshold reliability and therefore his role is a limited one.
The question of ultimate reliability is for the trier of fact who will then consider that piece of evidence in the context of the whole evidence and decide what, if any, weight he or she is prepared to give to it.
THE ISSUES
The issues as they arise is as a result of the Crown seeking to have admitted in evidence for the truth the following statements and also certain drawings made by O.P.
The statement to S.B. that “J.R. touched my vagina, put his num-num in my mouth and in my hand and I squeezed it”.
The statement to C.P. that “J.R. touched my gina, put his penis in my mouth. He put blood or something in my mouth.”
The statement to C.P. that “that is what boyfriends and girlfriends do and J.R. and C. asked me to kiss J.R. like boyfriend and girlfriend do.”
The entire video statement given to Detective Anthony Donnelly on January 8, 2013.
The drawings Exhibit A, B, and D entered in evidence at the voir-dire.
ANALYSIS
Applying the applicable rules noted above to the evidence introduced during the voir-dire I conclude that only the following statements will be admitted:
The statements made by O.P. to her mother in the bathroom in October 2012.
The statements made by O.P. to her paternal grandmother on December 31st, 2012.
I find both set of statements sufficiently necessary and reliable to meet the requirements of the principled approach.
On the one hand, the testimony of O.P. at the voir-dire and her video statement clearly indicate she is very reluctant to answer questions about the incident. And that, in fact, it’s clear from the video that she freezes and withdraws when questioning becomes more persistent. Her memory of the events, particularly in relation to frequency, specific details, and timing of the events, is greatly reduced and this is clearly due to her young age.
In view of both of these substantial limitations, the statements are therefore necessary to obtain a meaningful account from her.
I am also of the view that the statements are sufficiently reliable. Given her very young age, there is no reason to fear an attempt to deceive by O.P. and the subject of the statements are such that they would not likely be within the imagination of such a young girl.
The statements to the grandmother are not simply a repetition of the statement she told her mother in October. The actions of using her finger on the doll to explain her statement and the additional information relating to blood in her mouth adds the significant details.
In both cases the evidence suggests the statements were spontaneous and totally voluntary.
I have come to the conclusion that the drawings are not admissible. On the one hand there is total ambiguity as to what drawing was made when and in the presence of whom. As such, they are not sufficiently reliable. Moreover, they add very little, if anything, to the admissible statements. It is very difficult to know when the drawings were made and the evidence does not satisfy the Court that they were spontaneous. This is particularly shown in the case of Exhibit D, which obviously was made much later then the October and December 31st statements.
The statement to K.C. was a no and those made after December 31st, including the video statement, are simply repetitions. Insofar as a statement relating to what boyfriend and girlfriend do and how they kiss, that evidence has very little probative value in relation to the specific allegations made against J.R..
I must put this caveat, should the Crown decide not to call O.P. at the trial, I have decided that in order to ensure a fair trial for J.R., the video statement may be filed in evidence by the defence, naturally not for the truth of its content but for the fact that it was that the statements contained therein were in fact made by O.P. at that time.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Linda A. Lebeau, certify that this document is a true and accurate transcript of the recording of Regina v. J.R. in the Superior Court of Justice, held at 59 Court Street, L’Orignal, Ontario taken from Recording No. 3411-CR01-20140422-093553_10_CHARBOMI.dcr which has been certified in Form 1.
Date Linda A. Lebeau
*This certification does not apply to the (Rulings, Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.