ONTARIO SUPERIOR COURT OF JUSTICE
PETERBOROUGH COURT FILE NO.: 13481/13
DATE: 2014/09/19
BETWEEN
Her Majesty the Queen
Applicant
— and —
J.N.
Defendant
COUNSEL:
Paula Thompson for the applicant
Wylita Clark for the defendant
Joanne Ferguson, court appointed counsel for M.
HEARD: February 24, 25, 26, and 28, March 5, 6, 7, 10, 11, 12, 13, and 14, April 28 and 30, May 1, 13 and 16, June 2, 3, 4, 5, 6, 16, 17, 18, 19, 20, 23, 24, 25, 26, 27 and 30, July 2, 3, and 4, 2014
Sosna J.
REASONS FOR JUDGMENT
Introduction
[1] Hearsay evidence is presumptively inadmissible unless its admission at trial satisfies the twin criteria of necessity and threshold reliability.
[2] The accused, (“J.N.”), is charged with the following offences:
(1) That he on or about May 2012, unlawfully did commit a sexual assault contrary to s. 271 of the Criminal Code of Canada; and
(2) That he on or about May 2012, did, for a sexual purpose, touch a person under the age of 16 years, directly with a part of his body, contrary to s. 151(a) of the Criminal Code of Canada.
[3] The Crown, in Khan and KGB applications, seeks admission of hearsay evidence provided by J.N.’s daughter (“M.”), the complainant. The defence argues M.’s hearsay evidence is inadmissible in both applications.
Narrative History
[4] M. was three and one-half years old in the spring of 2012, when she reported to her mother, (“T.F.”), and to the police in a videotaped statement (Exhibit 1A), that her father J.N. had sexually fondled her. She was almost six years old when she testified at trial in 2014.
[5] M. testified she had no recollection of the disclosure she provided to her mother on May 13, 2012; and no recollection of providing the recorded videotaped statement to the police on June 26, 2012. In the police interview, M. provided additional details of the alleged sexual abuse.
[6] Further, when advised of the statements she made to her mother and the police in the videotaped statement, M. testified those statements were not true, and that she was joking when she made them.
[7] In two recorded therapy sessions on March 12 and 17, 2013, M. advised her therapist Brian Nichols, that the sexual assault allegations she reported were false and she was joking. As with her statements to her mother and the police, M. testified she has no recollection of the statements she made to Nichols.
[8] In June of 2014, during supervised access visits with her father, CAS officer Megan Wheeler, witnessed M. apologize to her father for making false allegations against him.
The Issues
[9] As previously noted, the Crown seeks to have M.’s hearsay statements to her mother and the videotaped interview with the police entered as substantive evidence at trial.
[10] The defence and Crown agree, as set out in R. v Khan, 1990 77 (SCC), [1990] 2 S.C.R 531, because M. has no memory of the disclosure she provided to her mother, the necessity requirement for admitting M.’s hearsay evidence is satisfied.
[11] Further, both parties agree, as set out in R. v K.G.B. (KGB), 1993 116 (SCC), [1993] 1 S.C.R. 740, that because M. has recanted her June 26, 2012 statement to the police, the necessity requirement to have those statements introduced at trial is also satisfied.
[12] The Crown and defence further agree that Khan and KGB applications will be argued in a blended voir dire, with the evidence introduced applying in common to both applications.
[13] The issue remaining in the Khan and KGB applications is whether the Crown has discharged its onus of proving the second component of the hearsay rule, that is, the threshold reliability of M.’s statements, in order for those statements to be admitted at trial.
Threshold Reliability –Applicable Legal Principles
[14] Threshold reliability is concerned with whether the circumstances surrounding the hearsay statement(s) provide guarantees of trustworthiness. The hearsay statements are admissible at trial if on a balance of probabilities, the Crown has satisfied threshold reliability. Once threshold reliability is satisfied, the hearsay statements are then put to the Trier of Fact to determine whether the Crown has proven the ultimate reliability of those statements beyond a reasonable doubt.
[15] In making the preliminary assessment of threshold reliability, the trial judge functions as the gatekeeper who ensures the integrity of the trial process. To make that preliminary assessment, all relevant factors are considered including supporting or contradictory evidence (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 2, 49, 51 and 93).
[16] Whether certain factors apply to threshold or ultimate reliability depends on context. This contextual analysis requires a functional review, focusing on the particular dangers raised by the hearsay evidence, the circumstances in which it was made, and circumstances that may overcome those dangers.
[17] As set out in KGB at para. 82, threshold reliability concerns are heightened when the proposed hearsay statements are inconsistent with other evidence provided by the declarant:
The reliability concern is sharpened in the case of prior inconsistent statements because the trier of fact is asked to choose between two statements from the same witness, as opposed to other forms of hearsay in which only one account from the declarant is tendered. In other words, the focus of the inquiry in the case of prior inconsistent statements is on the comparative reliability of the prior statement and the testimony offered at trial, and so additional indicia and guarantees of reliability to those outlined in Khan…must be secured in order to bring the prior statement to a comparable standard of reliability before such statements are admitted as substantial evidence.
The Circumstances Surrounding M.’s Disclosure of Sexual Abuse to T.F. (Khan Application)
[18] M. testified she had no recollection of the sexual abuse allegations she made to her mother in May 2012. The only witness to those hearsay statements and the circumstances surrounding them was M.’s mother.
[19] Dr.’s Laura Melnyk–Gryble and Kim Roberts are both psychologists, qualified to provide expert opinion on interviewing techniques for children and suggestibility in children. Both agree that M.’s current lack of memory (at age five and a half), regarding the previously reported sexual abuse that took place when she was three and one-half, is consistent with the developmental memory of children between those ages.
[20] T.F. testified that she suffered from a host of anxieties, both before and after M. was born. Those included a fear of having contact with strangers, which often prevented her from attending private and public functions; and, a fear of driving, that prevented her from driving in large metropolitan centres such as Toronto. She testified it was not uncommon that her fears and anxieties would have her roll up in a ball and cry. She reported these attacks to her physician.
[21] Dr. Kimberly Curtin, T.F.’s family doctor, confirmed that T.F. has been her patient since April 2008. Dr. Curtin testified that in March 2012, she diagnosed T.F. with unipolar depression, with symptoms of secondary anxiety. She described T.F.’s anxiety manifested itself as a result of perceived dangers when in fact those dangers were non-existent.
[22] T.F. testified that since being diagnosed, she has been treated with counselling and medication. She testified that she now has a clearer understanding of what she described as perceived flawed perceptions of circumstances and events.
[23] T.F. testified that from birth, M. was her central focus. She testified she nursed M. until she was four years old and slept with her until that age. T.F. testified that M. did not adapt well in school and as a result was and still remains home schooled by her. M. in turn testified that her mother is the centre of her universe and the most important person in her life.
[24] T.F. testified that even before the reported alleged sexual abuse by J.N., she feared that M. was vulnerable to sexual abuse by males. She testified she did not allow M. to have contact with male caregivers outside the home. She testified that she was particularly concerned that M. would be sexually abused by her father.
[25] T.F. testified that on five to six occasions prior to M. reporting any sexual abuse, she asked, pointing to M.’s vaginal area, whether J.N. had inappropriately touched her. M. at times responded “no” and at other times made no response at all.
[26] T.F. testified that on May 13, 2012, M. was in a playful mood when she readied her for bed. She testified that while jumping up and down, M. pulled down her panties and asked her to smell her bum. T.F. responded by asking, “Does daddy play games like that with you?” M. responded saying, “yep”.
[27] T.F. testified she was shocked and did not recall the exact wording of the follow- up questions put to M. However, those questions included statements such as, does daddy tickle you there? Does daddy put his face there? Does daddy lick you there? T.F. testified that M. responded with, “yep” to those questions while she continued to jump up and down on the bed.
[28] The following day, May 14, 2014, T.F. questioned M., asking her further closed-ended questions such as, “Does Daddy lick you like an ice cream cone?” T.F. testified she wanted M. to demonstrate where J.N. allegedly touched her. She then held out two Barbie dolls and asked M. to point to the bodily area where she was licked or tickled. M. pointed to the vaginal area of one of the dolls.
[29] On May 15, 2014, at the request of T.F., a physician examined M. and found that allegations of inappropriate touching were not substantiated by physical examination. His findings included that M.’s abdomen had no masses or tenderness; her extremities had no abnormal marks; and a pelvic exam revealed no signs of trauma.
[30] On June 26, 2012, T.F. provided a DVD recorded statement to the police detailing M.’s report of sexual abuse. The same day M. provided a recorded DVD statement to the police.
[31] On July 3, 2012, at the request of the police, T.F. attended the police station for a second interview. She provided additional details omitted in her first statement. She was questioned about those details and in part, provided the following answers:
A. So when she [M.] had pulled her panties down up over her bum and she asked me to sniff or smell her bum, and I said no, statement at first it was: “Come on its fun”. So she – she wanted it to be a game.
Q. Okay.
A. And then that’s when I said, “no”, you know,” that’s – we don’t play those sort of games. And then that’s when I covered her backup and then proceeded to ask her if…
Q. Okay.
A…this is the sort of games that daddy plays.
Q. Okay.
A. So there was just that small… that small statement that she made,” “come on, it’s fun”. And I – and I think, if you remember, I was describing sort of this – she was in a very playful mood.
Q. And those were her exact words?
A. Those exact words…
Q. Okay.
A … “come on its fun”. (Exhibit 2B at pp. 8 to 10)
[32] On July 31, 2012, T.F. submitted a sworn affidavit (Exhibit 3) received by CAS and police authorities. In part, the affidavit reads as follows:
Paragraph 3B. On a day between May 13th and June 26th, I was putting M. to bed. We were playing on the bed and I asked M. about the touching to which M. replied, “I was just joking, ya”, which is her way to imply “I was joking with you, teasing you”.
Paragraph 6. This past Sunday, July 29, 2012, I was drying off M. after giving her a bath. I asked her, “You know you told me daddy touches you down there (pointed to the vagina), were you joking?” M. replied “yes”. I asked “you were joking?” and M. replied, “yes”. I then asked “And when you told me daddy licked you there, were you joking?” which she replied, “yes’. I then asked why she would say that and she replied “I don’t know, it was fun”.
Paragraph 9. I want police to be aware of these developments and to be aware of my concerns about M.’s subsequent statements, and that there is now substantial doubt in my mind as to whether these allegations are true.
M.’s Trial Evidence Re: Statements to J.N.
[33] At trial, M. recanted the statements she made to her mother. She testified she was joking and made up the sexual abuse allegations. During the Crown’s cross-examination, pursuant to section 9(2) of the Canada Evidence Act, R.S.C, 1985, c.C-5, M. provided the following evidence:
Q. …you have told your mom that it was just a joke?
A. Yes. Yes. Yes.
Q. How did that happen, M.? When and where were you when you told your mom it was just a joke?
Q. Ah, I think in my house.
Q. Can you tell me about that?
A. Well, I -- I had it on my mind, and I said, mommy, when -- I just joked about daddy licking and tickling down in my bum. (Trial Transcript, April 28, 2014, at p. 9 line 12 to line 24)
Q. If your memory doesn’t go that far back, you know for sure whether or not licking and tickling happened back when your daddy lived with you?
A. Um, he didn’t do it.
Q. How do you know that?
A. ‘Cause I -- for the third time - I made it up.
Q. M., did you ever tell your mommy that daddy licked and tickled and touched you?
A. Well, I made it up, then I rushed down to tell her. Then she telled you, and my dad had to go away. And that wasn’t fun for me. And mom lied to me. She told me that he was at Oma’s [M.’s grandmother] house, but-- and she told me her -- cell phone was broken, but none of that was true. It made me really sad, cause in our family there is no keeping secrets or lying…
Okay. I’ll repeat it again. So I thought of that joke and I rushed down to tell my mommy, and she called court, and my dad had to go away, and I was really, really sad, and mom lied to me…[ J.N. was barred by bail restrictions from having any communication or contact with M.]. (Trial Transcript, April 28, 2014, at p.15 line 30 to p.16 line 19)
Q. And you said that your mom lied to you and told you that your daddy was at your Oma’s house and that her cell phone - was broken; you told me that; right?
A. Mmm, and it wasn’t, wasn’t, wasn’t, wasn’t true.
Q. And you said you don’t like that because there is no lying and there is no secrets and your family.
A. Right. Super right.
Q. When you rushed down to tell your mommy this, where did you rush down from, M.?
A. Well, I didn’t exactly rush, I think I just walked, but dad and - I think dad and I were jumping up on the bed.
Q. What makes you think that?
A. Well, I sort of forget, but I think that’s what I - remember.
Q. Okay. So you remember you and dad were jumping up and down on your bed and then what happened?
A. I ran down to tell mama.
Q. What did you run and tell her?
A. I told her that dad licked and tickled in my bum.
Q. What happened when you told mommy that?
A. I forget.
Q. Did you and mommy talk about it?
A. I think not.
Q. M., are you telling me right now about things that you remember or things that people have told you?
A. I think - I think I remember.
Q. You think you remember. Okay. M. did you ever show your mommy where daddy touched you using some Barbie dolls?
A. No…..
Q. M., did you ever tell your mommy that you did not like it when daddy touched you?
A. Like I said, he didn’t do it.
Q. I understand that you are saying that daddy didn’t touch you, my question, M., is this, did you ever tell your mommy that you did not like it when daddy touched you.
A. Well - well that - I just told her that he licked and tickled down in my bum. Oooh [ph] Oooh. Oooh.
Q. Did you tell her how he did that?
A. I think - well, that wasn’t true. I don’t know. And by the way, how much more longer until we - we go back and then I get another break and then we keep switching? (Trial Transcript, April 28, 2014, at p.16 line 31 to p.18 line 31)
The Circumstances Surrounding M.’s Police Statement (KGB Application)
[34] On June 26, 2012, M. provided a recorded DVD statement to the police. As with M.’s hearsay statements to her mother, the issue is whether the circumstances of trustworthiness and reliability are present to admit at trial the hearsay statements M. made in the police interview.
[35] In part, M. provided the following answers when questioned by Detective Constable Katz:
Q. …So, M., do you know why you’re here today to talk to me.
A. Yeah.
Q. Okay. Well, you – can you tell me why you’re here today, because maybe I don’t know.
A. Oh, yeah. In the past daddy used to touch me and lick me down there.
Q. Oh, really? Do you know when that happened?
A. In the past. (Exhibit 1B, Police Video Transcript, June 26, 2012, at pp.3 and 4)
Q. …M., when you told me that your daddy what’s your daddy do?
A. He touch - he touches me and he licks me.
Q He touches you and…
A. Licks me and all that stuff for my bum.
Q. It’s for your bum?
A. But I don’t like that. (Exhibit 1B, Police Video Transcript, June 26, 2012, at pp. 8 and 9)
Q. Yeah? Remember, M., look at me for a sec. Remember you said your daddy touches you down there?
A. He nudges me.
Q. Where - where - where is down there?
A. My front bum. [vaginal area].
Q. Your front bum?
A. Yeah. That’s his favorite place to lick me and nudge me. (Exhibit 1B, Police Video Transcript, June 26, 2012, at p.10)
Q. …Now, M., can - can you tell me how - how- what is nudging?
A. It’s - it’s something like you do this.
Q. Okay, so - so how - how does Daddy do the nudge?
A. (gestures) [bobs her head up and down] (Exhibit 1B, Police Video Transcript, June 26, 2012, at p.11)
A. He tickles me all over, he licks down there, he just does everything to me.
Q. He tickles you all over and licks you down there
A. (nods) [affirmatively]
Q. Oh, like that?
A. (nod) [affirmatively]
Q. Oh, he does that too? And then – and then what? And then what?
A. Tickle, tickle, tickle, tickle, tickle. (Exhibit 1B, Police Video Transcript, June 26, 2012, at p.13)
[36] After watching the police video, the Crown questioned M. about the alleged sexual abuse. In part, the following questioning took place:
Q. Can you tell me what was that you mentioned about your daddy?
A. Um, I’ll repeat it again. I - I kind of joke about dad licking and tickling down in my bum. That was just a joke. I was having fun. I meant to tell my mom the truth, but I didn’t. I always forgot, so now I did. (Trial Transcript, February 24, 2014, at p.36 line 10 to 18)
Q. What parts of your body would be tickled?
A. Well, my feet, my – underarms - well, and except I don’t remember the other parts. Well, maybe all over except my bum. And by the way, tickling and that - tickling and licking joke was just a joke. It was just a joke. I wasn’t - I was thinking. My dad did not do that. (Trial Transcript, February 25, 2014, at p.68 line 30 to p.69 line 4)
Q. And then you said that, “tickling on your bum was just a joke. You were faking, and your dad did not do that”.
A. Yeah…
Q. Okay.
A. …he did not. So that’s why I really want him back. (Trial Transcript, February 25, 2014, at p. 69 line 20 to 26)
Q. The other thing that you said, M., was that it was “just a joke”. Can you explain more about that to me please?
A. Sure. I - I just joked about dad licking and tickling my bum. He didn’t do that. I was just having fun. Which is a joke. Am I correct? (Trial Transcript, February 25, 2014, at p.82 line 19 to 24)
Q…. I asked if your dad ever licked your front bum. [vaginal area].
A. Neverrrr[ph]
Q. Did your dad ever touch you or licked you anywhere?
A. Hmmm. Well, he did touch me, but not licked me.
Q. Where did he touch you?
A. Well, he holds my hands, um, he tickles my feet and like if I - if he touched me, like tickling or holding my hand, that would be touching; right?
Q. Yup.
A. Well, he - he’s always touches me, but not in my bum. But he never licked me. He never let me. Never, ever, ever.
Q. What about when you go to the washroom?
A. Nope.
Q. You told Tracy [Detective Constable Katz] in the video, M., you were talking about your dad, and you said, “He touches me, and he licks me, licks me, and all that stuff, for my bum, but I don’t like that.”
A. That’s not true. It’s not true. Please tell me - please tell me it isn’t so. It isn’t true. It doesn’t. (Trial Transcript, February 25, 2014, at p.90 line 5 to 30)
[37] In M.’s cross-examination by the defence, the following exchange took place:
Q. …So when you say joke, are you saying something true or something not true?
A. Not true.
Q. Okay. Thank you…..So now M., I want to ask you about the time you met with Tracy at the police station and do remember talking to Tracy?
A. Not really.
Q. …Do you remember if you talked to anybody before you talked to Tracy that day?
A. I don’t know.
Q. … So, did you ever talk to your mommy about things that you and your daddy did together before this?
A. I don’t know.
Q. …So when you told us that you were joking with Tracy, right? You told us that?
A. Uh-huh.
Q. Okay. And joking isn’t a telling the truth; right?
A. Right. Right. Right. Right.
Q. …So M., with the idea of joking with Tracy, you don’t remember why you did that?
A. Nope.
Q. So joking’s just fine; right?
A. Yup. Yup.
Q. …But you understand that when you’re talking here, we’re not joking, right, cause you promised to tell the truth.
A. Mm’hmm.
Q. Okay. So you’re not joking now; are you?
A. No. No. No. No. No. No. No. No. No. (Trial Transcript, February 25, 2014, at p.110 line 26 to p. 114)
[38] The Crown sought and was granted leave to cross-examine M. pursuant to s. 9(2) of the Canada Evidence Act.
[39] In that cross-examination, M. reconfirmed that during the police interview, she was “joking” when she reported that J.N. had sexually abused her. In part, the following exchange took place:
Q. Now, M., the last time that you were in court, you told us that you were joking when you told the police officer, Tracy, that your dad licked and tickled you down in your bum; is that right? Did you tell us that last time?
A. Yes. Yes. (Trial Transcript, April 28, 2014, at p. 5 line 10 to 15)
Q. Okay. So if I talk about the video that you made with Tracy, you remember that a little bit?
A. I don’t remember the video, but I do remember going there.
Q. Going to the place where you made the video?
A. Yes, but I forget the video….
Q. And do you remember seeing that in the video you tell Tracey about your dad licking and tickling your bum.
A. Yes, I -- I think I remember -- remember telling her that.
Q. Okay. Now, the last time you came to court, you told us that that was just a joke.
A. Yes, that’s really, really, really true.
Q. Okay. So my question is, how do you know that when you told Tracy that your dad licked and tickled your bum --- how do you know that’s just a joke?
A. Well, because I made it up.
Q. You told me, M., that you forget making the video, but you remember seeing the video; is that right?
A. Yes.
Q. M., if you forget making the video, how do you know that what you said on the video was just a joke?
A. Oh, for the second time, I just made it up. I made -- well, I made what the joke was. I -- I made -- I made that joke up. I -- I made the joke. I made that joke daddy was licking and tickling down in my bum. That’s -- I made that joke, made it all -- made it up.
Q. Why did you tell a joke like that?
A. I have no idea. Sometimes I just do things just for fun.
Q. What was fun about that?
A. I don’t know. (Trial Transcript, April 28 2014, at p.7 line 30 to p.9 line 6)
The Crown’s Position
[40] The Crown acknowledges that M.’s recantation to her mother, to the police, and to this court, is to be considered in the determination of the threshold reliability of M.’s hearsay statements.
[41] The Crown argues that despite M.’s recantation, the analysis in Khan supports its submission that the circumstances surrounding M.’s hearsay statements to her mother provide guarantees of trustworthiness, thus making M.’s hearsay statements admissible.
[42] Khan held in part that threshold reliability of a young child’s hearsay evidence reporting sexual abuse is satisfied in circumstances where it would not be expected that the child of tender years would have knowledge of such acts.
[43] To provide context to that finding, a brief review of Khan is warranted.
[44] In Khan, Dr. Khan was charged with sexually assaulting a three and one-half year old child during a general medical examination. When the examination was completed and the mother and child were leaving, the child reported that Dr. Khan had ordered her to open her mouth and put his “birdie” [the child’s terminology for penis], into her mouth and peed in it.
[45] During the police investigation, the jogging suit worn by the child was examined. A spot on the sleeve had a deposit of semen and saliva on it. The trial judge held that the child’s hearsay statements were inadmissible and Dr. Khan was acquitted. Ultimately, the issue of the admissibility of the child’s hearsay statements was reviewed by the Supreme Court of Canada which ordered a new trial.
[46] In Khan, at para. 34, the court held in part:
I conclude that the mother’s statement in the case at bar should have been received … It was necessary… It was also reliable. The child had no motive to falsify her story, which emerged naturally and without prompting. Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability. Finally her statement was corroborated by real evidence [the combination of saliva and semen found on the sleeve of the child’s jogging suit].
[47] As in Khan, because M. could not recall the statements made to her mother, the necessity requirement for admissibility is met. However, in addition to finding that a young child would not be expected to have knowledge of the sexual acts described, the court in Khan considered additional evidence not present in the case at bar, which satisfied the criteria of threshold reliability.
[48] Unlike Khan, where the court found the child had “no reason to lie [alleviating] the concern about sincerity”, M. testified that she did lie (i.e. joke) when she reported that she was sexually abused. M. said she did so because she was being silly and having fun.
[49] Her evidence on that point was consistent in her examination-in-chief, reinforced in cross-examination by the defence, and was not undermined in further cross-examination by the Crown.
[50] The Crown submits that M. has recanted her allegations in order to be reunited with her father. Evidence to be reviewed later confirms that M. greatly misses her father and hopes that her family is reunited. However, there is no evidence that it is for these reasons M. has recanted her allegations. In fact, that proposition was never put to M. by the Crown who after concluding its cross-examination pursuant to section 9(2) of the Canada Evidence Act, did not further cross-examine M. under section 9(1), where that proposition could have been explored further.
[51] Further in Khan, the court found that because the child’s statement was made naturally and without prompting, there was no real danger that it came about because of the mother’s influence.
[52] In this trial, both expert psychologists, Dr. Melnyk-Gryble and Dr. Roberts, agree that children of M.’s age can be influenced by suggestive interviewing. Although they disagree to the extent and degree of influence, they agree to the following general propositions: that suggestive interviews can prompt children to report events that never occurred; that young children can confuse something they have heard with something they experience; that parents can be influential sources of misinformation; and that children can invent details.
[53] The only evidence as to how, when, and where, M.’s report of sexual abuse was initially disclosed, was provided by T.F. T.F testified that because of her anxiety that M. was vulnerable to sexual abuse by J.N., she asked M. on five to six earlier occasions whether her father had ever inappropriately touched her. M. would sometimes respond “no” and on other occasions ignore the question altogether making no response at all.
[54] T.F. testified that when M. asked her to smell her bum, she then put a series of closed, not open questions to her, which provided M. with specific details as to how she may have been sexually abused by her father. When faced with the detailed questions put to her, M. agreed by saying “yep”.
[55] I find that the relationship between M. and her mother was so close that they were virtually tied at the hip. T.F. was the centre of M.’s universe and M. was the most important person in T.F.’s life. I find, unlike in Khan, M.’s disclosure to her mother was not spontaneous. M.’s disclosure of sexual abuse was not without history but arose through T.F.’s prompting on numerous occasions (see below para. [133] of the KGB analysis).
[56] Furthermore, unlike Khan where the child provided independent detail of the sexual assault, I find the leading questions put to M. by T.F as to how she may have been sexually abused, were highly suggestive. M. provided no additional detail and only one word “yep” responses to T.F.’s suggestions. In these circumstances, unlike in Khan, it cannot be found that M.’s one word “yep” responses to T.F.’s suggestive questioning imbued her responses with a “peculiar stamp of reliability” (see below para. [133] of the KGB analysis).
[57] Furthermore, I accept Dr. Melnyk-Gryble’s testimony that preschool children are often intrigued with bodily functions. I therefore find the evidence that M. pulled down her panties and asked her mother to smell her bum, is not conduct which is ordinarily outside the normal behaviour of a child M.’s age. Therefore, that conduct cannot be given “a peculiar stamp of reliability”.
[58] Lastly, unlike Khan where the child’s disclosure was confirmed by a semen stain on her clothing, in the present case, physical confirmation of M.’s sexual abuse was not found.
[59] The Crown nevertheless submits that M.’s statements reporting sexual abuse carry a “particular stamp of reliability” on the following surrounding circumstances.
(1) Barbie Doll Demonstration
[60] T.F. testified that the day following M.’s original hearsay statements, she wanted M. to demonstrate where she was tickled. To do so, T.F. held out two Barbie dolls and asked M. to point to the area on the doll where daddy tickled or touched her. M. pointed to the vaginal area of one of the dolls.
[61] Both expert witnesses Dr. Melnyk-Gryble and Dr. Roberts, agree that the use of Barbie dolls to determine where M. was tickled or touched, provides little to no evidentiary value. They agree that at three and one-half years old, M. likely did not understand that the dolls were meant to represent herself and a third party. Both testified that in investigating a sexual abuse allegation made by a child of M.’s age, neither would utilize physical dolls in their inquiry.
[62] On this issue, I accept the evidence of both experts and find contrary to the Crown’s submission, the Barbie doll demonstration has no bearing on the threshold reliability of M.’s hearsay statements.
(2) T.F.’s Evidence of J.N.’s Interaction with M.
[63] T.F. testified that the day prior to M.’s disclosure, she, J.N., and M. were rough-housing and tickling each other, an activity not uncommon in their home. When the cover under which M. was lying was unexpectedly removed, T.F. observed J.N.’s hand near the inside of M.’s upper thigh. When she confronted J.N. with the observation, he became angry and denied any wrong doing. There is no evidence that the incident was further discussed with either J.N or M.
[64] T.F. testified that on another occasion, M. was with her in the bathroom brushing her teeth. J.N. entered and M., clinging to T.F.’s leg, stated “I don’t like when daddy touches me.” J.N. then kneeled in front of M. looking into her eyes and responded, “M., I’ll never touch you again I promise.”
[65] When interviewed by the police, T.F. was asked whether she spoke further to M. or J.N. about this incident. She responded:
No, M. over time has had a tendency to shy away from J.N., and it seems to go in waves. I always just sort of took it to be her behavior, personality…. so I just thought that she was going through one of her waves of … sort of anti-daddy… But it’s just that – it’s happened so soon after that – that Sunday [the day of M.’s disclosure to T.F.].” (Exhibit 2B at pp. 15 and 16)
(3) M.’s Disclosure of “Teasing Secrets”
[66] On […], 2012, T.F. testified the topic of M.’s pending birthday party arose. Telling M. that her birthday present was a secret, T.F. testified that this was a good opportunity to discuss the importance of secrets. During that discussion M. said to her, “I have a secret for you mommy; I love you”. T.F. responded, “…oh, that’s nice M., that’s a nice secret”. M. then continued, “I only have love secrets. Why does daddy have teasing secrets?” T.F. then asked M. “what do you mean?” M. responded, “teasing secrets like when he wants to touch my bum”.
[67] As with the previous incidents, T.F. did not ask M. either follow-up questions or for elaboration on the issue of “teasing secrets”. T.F. stated in the police statement, “So I – I don’t know. I mean, we just sort of left the conversation.”
[68] I find the three incidents individually and/or collectively may raise suspicion, conjecture, and speculation; but that reasoning as submitted by the Crown, without additional supporting evidence on which inferences could be drawn or findings of fact made, is prohibited. I find that the surrounding circumstances of all three incidents do not provide guarantees of trustworthiness to render M.’s hearsay statements admissible at trial.
(4) Brian Nichols’s Evidence
[69] M. testified she has no memory of her therapeutic sessions with Brian Nichols.
[70] On September 20, 2012, Brian Nichols, a psychologist, began seeing M., at the request of T.F. Children’s Aid Society recommended that T.F. contact Nichols.
[71] As a psychologist, Nichols uses narrative therapy (more popularly called play therapy), to assist children in crisis. He is well-known to CAS and Kawartha CAS commonly refers patients to him.
[72] Although Nichols was aware M.’s father was charged with sexual assault, and not allowed direct or indirect contact with her, he did not learn that M. was the alleged victim until November 15, 2012.
[73] After J.N. was charged, M. was told that J.N. was in Connecticut with his ailing mother. As his absence stretched into weeks and months, M. became suspicious and skeptical of the family’s explanation and through her lens as a four year old, feared that J.N. was in fact dead.
[74] Nichols testified that M. was experiencing significant separation anxiety from her father’s absence. He testified in not seeing her father, M. eventually feared that she would also lose her mother. Nichols testified that M.’s lack of knowledge as to why her father had suddenly disappeared from her life was presenting major hurdles in her therapy. He testified it was in his opinion that M. needed to hear the truth as to why her father was absent.
[75] M. was scheduled to testify on January 7, 2013, at the preliminary hearing on the present offences. To that date, Nichols had not discussed with M. that her father was accused of sexually abusing her. He also testified he had not provided her with any information concerning the nature of those allegations.
[76] Although called as a witness at the preliminary hearing, the court found that M. was unable to recall events including her police interview with Detective Constable Katz. M. did not testify at the preliminary hearing. J.N. was committed to stand trial.
[77] Nichols testified that contact between M. and her father was critical to address M.’s rapidly deteriorating emotional state. J.N.’s bail terms which had been unsuccessfully appealed to that date, barred him from communicating or associating with M.
[78] I accept Nichols’s evidence that to address M.’s emotional needs, in consultation with T.F. and J.N., Nichols agreed that the history of M.’s allegations, and the court process that was to follow, would be best explained to M. through a story format entitled “M.’s True Story” (Exhibit B, Text Version and Exhibit D). The story was intended to introduce evidence of the reading of “M.’s True Story” to the court in a further bail appeal. I note that at that time, J.N.’s bail terms permitted him to have contact with T.F. and Nichols.
[79] Although there is disagreement as to what information Nichols advised CAS regarding M.’s True Story, I accept that CAS was aware that M. was to be given some information concerning the events that led to her father’s absence. Megan Wheeler, the CAS case officer in charge of M.’s file, testified she was not advised of the entire text of M.’s True Story, nor was she aware that M. was to be interviewed by Nichols. Nichols testified to the contrary.
[80] On January 24, 2013, Nichols read a portion of M.’s True Story to her. He testified that when explaining to M. why her father was not allowed home, and reading from the text, “M. said that daddy tickled and licked me down there”, M. responded, “Daddy didn’t do that”. Nichols and T.F. then agreed to tape a follow-up reading of M.’s True Story.
[81] On March 12, 2013, during a play therapy session where M.’s True Story was read to M., the following exchange took place:
Nichols - [Reading from the text] “So daddy was told by the police that he couldn’t see or talk to you, even on the phone, until a judge was able to find out what you meant when you said “Daddy tickled and licked me down there.” The police thought that maybe your daddy had broken a law”. [No longer reading from the text] So when you said that, that “Daddy tickled and licked me down there”, what did it mean?
M. - Nothing.
Nichols - It didn’t mean anything?
M. - No, I was just playing … I was just being funny. (Exhibit A2, Transcript of Therapy Sessions, March 12, 2013, at p. 4)
Nichols - So, M., the question I need to ask you is did your daddy touch you? And when you said he…
M. - When he -- tickled me.
Nichols - When he tickles you.
M. - And then we have wrestles (inaudible).
Nichols. - When he tickles you and then you have wrestles. When you went to the police, you talk about your daddy tickling your front bum what did that mean?
M. - I told him he didn’t do that I think.
Nichols - You told them he didn’t do thing?
M. - Yeah. I think he didn’t do that. (Exhibit A2, Transcript of Therapy Sessions, March 12, 2013, at p. 7)
Nichols - [Reading from the text] “The judge needed to decide if you had been joking when you told your mommy that daddy had licked your front bum”.
M. - I was joking.
Nichols - [Not reading from the text] You were joking. Okay. So it still wasn’t true. Wasn’t sure whether you were joking or whether you are telling the truth. What does that mean, to joke?
M. - Being funny. (Exhibit A2, Transcript of Therapy Sessions, March 12, at p. 9)
[82] On March 17, 2013, in a therapy session revisiting M.’s True Story, Nichols asked M. the following questions:
Nichols - …So, M., I want to ask you the same question I asked you yesterday - or two days ago, when we were playing in the sand tray. And I asked you, when you said your “dad licked and tickled me down there”, what were you meaning?
M. – Just - joking and playing.
Nichols - …So the judge is still going to want to know, when you told mommy about daddy licking and tickling you down there what that meant.
M. - I told you before.
Nichols - What did you tell me before? One more time…
M. - I was already - it was a joke.
Nichols - It was a joke. What does a joke mean? What’s it mean when you tell…
M. - Having…
Nichols - … a joke?
M. - … Fun. (Exhibit A2, Transcript of Therapy Sessions, March 17, 2013, at pp. 22 and 23)
Nichols - ... So, M., I’m sorry that I have to keep asking you about dad – part about tickling and touching you down there. It’s not for me, it’s so the – the judge and the lawyers know what really happened. And I know that you don’t like me asking you about it. But I thought it might be easier if I asked you then if people that you didn’t know ask you. And that if we can show them on the tape what you say, then it would be easier. That’s why I’ve had to do it. Though I would rather we didn’t need to do that. (Exhibit A2, Transcript of Therapy Sessions, March 17, 2013)
Nichols – M., why don’t you want to talk about …
M. - ‘Cause it (inaudible) make me cry.
Nichols - Aww, ‘cause it might make you cry? Why would it make you cry?
M. - (Inaudible) ‘cause I don’t (inaudible)
Nichols - You don’t want to hear ‘cause daddy’s in Peterborough. Does that mean you don’t want to see daddy?
M. - I do want to see him … I’m just sad he’s in Peterborough.
Nichols - Because that’s…
M. - I can’t see him.
Nichols - You’re sad that you can’t see him, but he’s in Peterborough, and he can’t be at your house.
M. - Only mommy can visit.
Nichols - Only mommy can visit him. So, actually, that’s very sad…
M. - And she can have (inaudible)
Nichols - I know, that’s really nice that she can. Hope soon that you can to. (Exhibit A2, Transcript of Therapy Sessions, March 17, 2013, at pp. 32 and 33)
[83] Nichols testified that as a therapist he would be familiar with signs of sexual abuse but saw no such indicia in his sessions with M. The Crown submits that Nichols is a biased witness who has improperly influenced M. to recant her allegations to help fulfill her hopes of being reunited with her father.
[84] In that regard, the Crown points out the concluding paragraphs of M.’s True Story which read as follows:
The judge needed to decide if you had been joking when you told your mommy that daddy had licked your front bum…
Finally, the day came when the lawyers had finished all of their talking and the judge was able to make a decision. He thought daddy had not done anything wrong after all.
The judge then finally allow daddy to see you again, and said he could come home soon after that and live with you and mommy again forever. Everyone was happy, or at least everyone that really matters was happy. M.’s family was back together again. (Exhibit B)
[85] The Crown submits the circumstances surrounding M.’s therapy sessions with Nichols provide context as to why M. has now testified she was joking when she reported the sexual abuse to her mother, and why her hearsay report satisfies the criteria of threshold reliability.
[86] I accept Nichols’ evidence that because the preliminary hearing court held that M. was unable to testify, he believed she would not be called as a witness in any pending trial. I accept his evidence that prior to reading M.’s True Story to her, he had been advised by T.F. that M. had told her that she was joking. I accept Nichols’s evidence that he sought transparency in the reading of M.’s True Story and prepared a record by taping the proceedings.
[87] The DVD text of M.’s True Story was given to CAS and police authorities. The DVD recording was introduced at J.N.’s bail variation application and the court varied the bail terms permitting J.N. to have access with M. which were supervised by CAS. There is no evidence that after receiving the DVD either the police or CAS re-interviewed M. about its contents.
[88] Although Nichols’s methodology is unorthodox and questionable, risking possible obstruction allegations, contrary to the Crown’s submission, I find that Nichols held a bona fide concern over M.’s therapeutic needs. Megan Wheeler, the CAS case officer in charge of the file since 2012, testified that throughout her interaction with Nichols and M., Nichols was focused on M.’s interests. However, because Nichols reported M.’s therapeutic progress to J.N, the Crown through Wheeler’s testimony, attempted to suggest that Nichols was focused not on M.’s interests but rather on the interests of the accused. I find no such evidence.
[89] I find that Nichols used M.’s True Story for no other reason than to address M.’s deteriorating emotional health. Reading that story to M. provided her with the context she needed to understand why she had no contact with her father. Nichols testified that once M.’s True Story was read to her, M.’s spirits were lifted; she became more engaged in therapy; and the therapy sessions thereafter were more productive. Nichols’s evidence regarding M.’s positive emotional changes remains uncontradicted.
[90] Although I make no such finding, if a finding was made that Nichols had influenced M. in recanting her hearsay statements to T.F. as submitted by the Crown, such a finding would have no bearing on the already established finding that T.F.’s prior suggestive questioning of M. had then irreparably negated the threshold reliability of M.’s hearsay responses.
(5) M.’s Hearsay Statements in the Presence of CAS
[91] As previously noted, Megan Wheeler, CAS case officer, took charge of the J.N. file in August 2012. She testified that during a home visit with M. on August 1, 2013, M. advised her that she missed her dad. She also indicated that when she said daddy had tickled and licked her, she was just playing. Wheeler testified M. made both statements spontaneously without any earlier questioning.
[92] In 2014, J.N.’s bail was varied to allow him to have supervised access with M. through CAS. Megan Wheeler was designated to be the CAS official who supervised those visits.
[93] She testified that during an access visit on March 18, 2014, M. spontaneously with no prompting, turned to J.N. and said that she was sorry for saying that stuff about him licking her bum. M. stated she was just joking and wanted the family back together.
[94] On April 3, 2014, Megan Wheeler testified that during a supervised visit, M. hugged J.N. and stated again, she was sorry for what she said and wanted her family back together.
[95] This evidence was introduced by the defence during its cross-examination of Megan Wheeler. I am satisfied that the Crown was unaware of this evidence when M. had testified earlier as a Crown witness.
[96] At the conclusion of Wheeler’s cross-examination, the Crown being unaware of this new evidence was entitled to call reply evidence. I asked the Crown whether they wished to call any reply evidence including evidence from M. The Crown declined to do so. No further evidence was called and the joint Khan and KGB applications were concluded.
[97] Megan Wheeler testified that the statements M. made in her presence were spontaneous and unprompted. Megan Wheeler’s evidence was not challenged, undermined, or contradicted. Therefore, I do not accept the Crown’s submission that the circumstances surrounding M.’s statements as reported by Wheeler, lacked sufficient detail to provide guarantees of trustworthiness for them to be used in the determination of threshold reliability of M.’s other hearsay statements.
[98] Since counsel have agreed that the evidence in the Khan and KGB applications applies in common to both, a review of the KGB submissions is required.
M.’s KGB Statement
[99] The issue to be determined, as in the Khan application, is whether the circumstances of trustworthiness and reliability are present to render the hearsay statement (Exhibit 1A) admissible at trial. The truth of the statement is not at issue.
[100] Since the KGB statement was recorded, a review of the methods used to receive the statement is an important factor in the assessment of threshold reliability.
[101] M. provided her statement to the police on June 26, 2012. T.F. testified that on that date, she told M. they would be going to the police station and that M. would be asked questions about how daddy plays with her.
[102] In preparation for that interview, T.F. explained to M. the distinction between telling the truth and a lie. She testified that M. could not fully articulate the concept of the truth but could better articulate the concept of a lie.
[103] M. was interviewed by Detective Constable Tracy Katz. Before questioning M., Katz asked M. whether she understood what telling the truth and telling a lie meant. The following exchange took place:
Q. … Now M., have you ever learned about when you have to tell someone the truth or if you have to – do you know what it is to tell the truth?
A. Yeah.
Q. Okay. So if I was to ask you to tell the truth, um, like if I said your – your shirt is black, is that true or is it a lie?
A. A lie.
Q. A lie. Why, what color is your shirt?
A. Pink.
Q. It’s pink. And if I said that those nice Crocs you’re wearing were green would that be true?
A. (nods no)
Q. No? So if I said they’re purple, then is that a lie?
A. (nods no)
Q. No, because they’re purple, right? (Exhibit 1B at pp. 2 and 3)
[104] Prior to questioning M., other than asking her whether she can distinguish between the truth and a lie, Katz conducted no further inquiries with M. Most importantly, she did not explain to M., in simple terms that a three and one-half year old would understand, the importance of telling the truth in that interview.
[105] The only information that M. had been given up until that point was that she would be questioned about the games she and her father play. That information was provided by T.F. That limited information could not have conveyed to M. the importance of the interview and the importance of telling the truth during the interview.
[106] To establish an indicia of reliability for statements made under oath, solemn affirmations, or solemn declarations, a witness should be explained the liability that would ensue to the prosecution should a person lie. This explanation would help to address the danger of hearsay when the court is being asked to accept the statement as primary evidence; and when the court is being asked to accept this prior inconsistent statement over sworn contradictory testimony given at trial (see KGB and R. v. Conway and Husband, 1997 2726 (ON CA), 36 O.R. (3d) 579).
[107] M. was three and one-half years old when interviewed. Administering an oath, or having her affirm to tell the truth, would in all probability not have had any meaning to her. However, in lieu of an oath or affirmation, it was critical to convey to her the importance of telling the truth and having her promise to do so.
[108] At trial, in addition to determining whether M. could differentiate between the truth and a lie, as Katz did in her interview, Crown counsel also impressed upon M. the importance of telling the truth, and had her promise that she would do so. Crown counsel asked M. the following questions:
Q. Now, do you know why you’re supposed to tell the truth in court?
A. Um, kind of, but I don’t know very much.
Q. Okay. You “kind of” know. Can you tell me what you kind of know?
A. Okay. I don’t know now.
Q. Okay. But you know that you’re supposed to tell the truth.
A. Yes.
Q. Today, when I ask you questions, and the judge asks you questions, and another lady named Ms. Clark ask you questions, will you tell the truth?
A. Yes.
Q. Do you promise?
A. Yes. Yes. Yes. (Trial Transcript, February 24and 25, 2014, at p. 13)
[109] In this regard, I adopt the comments in R. v. S.(S.W), 2005 CarswellOnt 6900 at para. 42:
Our system of justice allows for children to testify at trials. When the child is young, there is a process for the court to undertake to make sure that the child can be sworn. If she cannot, than a promise to tell the truth is considered by the court. In other words, a child does not get an easy walk through the court system when it affects the liberty of a citizen. Some assurances of reliability of that testimony must be present. This is important when the child is younger than the age of criminal responsibility and cannot be held accountable for what she says.
[110] It is just as critical in a police interview as is it at trial, that similar “assurances of reliability” be secured from a child witness before that witness provides any information. The younger the child, the more important it is to secure those “assurances of reliability”.
[111] Those “assurances of reliability” are absent in this case because of Katz’s limited inquiry as to whether M. could differentiate between the truth and a lie. M. was not told the importance of the interview. The only information M. received was that she would be questioned about the games she played with her father—and even that information was provided to her by T.F, not Katz.
[112] M. was three and one-half years old when interviewed. I find Katz’s failure to convey to M. the importance of telling the truth and failure to secure a commitment from her to do so, significantly undermines the threshold reliability of the statements she provided.
[113] M. was never explained by either T.F or Katz that the information she was providing could have serious consequences. This omission adds in M.’s failure of promising to tell the truth and further negates the threshold reliability of her statements.
[114] Although M. had some minimal understanding of the general duties of the police, I also find in the context of the interview, M. had no understanding of the role Katz had in questioning her and therefore could not appreciate the importance of the responses she provided. Katz explained the following to M.:
Q. Now, you know I’m a policeman right?
A. (nods)
Q. And what’s a policeman’s job?
A. Take bad guys away.
Q. Take - and we do lots more than that, but what else do we do?
A. They – they stop speeding cars.
Q. Speeding cars, we stop speeding cars. And – and we help little kids right? We help people. (Exhibit 1B at page 3)
[115] M. made no response to Katz’s explanation that the police “…help little kids…help people”. Nevertheless, that explanation did not and could not have conveyed to M. the role the police would have in that interview, or how that role pertained to her. Namely, we cannot assume M. could connect how “[taking] away bad guys…or [stopping] speeding cars”, would relate to her being asked questions about a serious matter for which she promised to tell the truth.
[116] I find collectively the above reviewed failures in the police interview with M. do not provide the necessary guarantees of reliability to render M.’s hearsay responses admissible at trial.
[117] Since the Crown and defence have agreed that the evidence introduced in the Khan and KGB applications applies in common to both reviews, the surrounding circumstances prior to the police interview also have a bearing on the threshold reliability of M.’s KGB statement.
[118] As previously reviewed, those circumstances, in part, include T.F.’s unreasonable belief that M. was vulnerable to sexual abuse by J.N.; her suggestive questioning of M. thereafter; and M.’s one word “yep” responses, in the context of the close bond between them.
[119] I find there is no other evidence or other circumstances on which findings of threshold reliability could be made in the KGB application that are distinguishable from the findings made in Khan.
[120] The police interview was conducted on June 26, 2012. This was six weeks after T.F. had put a series of suggestive questions to M. providing her with details on how she may have been sexually abused. M. agreed to the suggestions with simply one word “yep” responses.
[121] In the police interview, M.’s responds to Katz’s questions as to how she was sexually abused with more than the one word “yep” answers she previously provided to her mother. In that interview, M. provides verbal details regarding how and where she was “licked”. On a number of occasions, to describe the “licking”, she physically demonstrates those actions and points to her vaginal area.
[122] However, I find the more detailed verbal and physical evidence provided by M. as to how she was sexually abused in the police interview, is tainted and influenced by the suggestive questions T.F. put to her six weeks earlier.
[123] In making this finding, I have considered and reject the evidence provided by Dr. Kim Roberts. Dr. Roberts was called as a Crown witness qualified to provide expert evidence in three areas:
(1) Children’s memory including memory distortion and suggestibility.
(2) Memory development and factors affecting memory.
(3) Child interviewing guidelines and techniques, particularly regarding sexual abuse.
[124] Prior to testifying, Dr. Roberts had not interviewed M. She did however, review M.’s police statement (Exhibit 1A). She also watched and listened to T.F.’s trial evidence.
[125] In examination-in-chief, Dr. Roberts opined “the suggestibility of young children [3 to 4 year olds] has been overestimated…the majority of what children report is accurate.” (Trial Transcript, Volume 2 at p. 635 line 31 to p. 636 line 4)
[126] Later in cross-examination, Dr. Roberts provided equivocal responses to a series of propositions put to her. Dr. Roberts was asked, “Children can give convincing accounts of fictional events”, she responded, “Again, can, doesn’t mean will”; “Children can invent details”, she responded, “Can, doesn’t mean will”; “Children can come to believe things that they’ve heard”, she responded, “Can, doesn’t mean will”; “Misinformation can become part of memory”, she responded, “Can doesn’t mean will”.
[127] She was then asked, given those propositions and the evidence surrounding the circumstances that led to M.’s police statement, “… [was] it still [her] impression that there is no reason to doubt what M. said to the police?”
[128] Dr. Roberts responded:
My reading of literature, the propositions you’ve just given me, and all of those studies of children’s memory, is mostly accurate. Not all children report misinformation. I’ve heard that M. has been asked yes/no questions which, in my opinion, were at the very mild end of suggestions, and I’ve seen M. interviewed in an open ended fashion. Yes, my opinion is I have a 99% no reason to doubt. I reserved 1% because there’s always possibilities, but I have no reason to doubt M.’s statement, and compared to other three and four and five year old’s allegations that I’ve seen, the way that they’ve responded in investigations like this, she stands out to me.” (Trial Transcript, Volume 2, March 7, 10, 11 and 12, 2014, at pp. 971 and 972)
[129] Dr. Roberts’s evidence may be open to two interpretations. If Dr. Roberts’s evidence speaks to ultimate reliability, it is irrelevant. If her evidence speaks to threshold reliability, I find it lacks objectivity and balance given her equivocal answers to general propositions put to her and her conclusion that she is 99% certain that there is no reason to doubt what M. said to the police.
[130] It would be a rare and exceptional situation in which any expert, however qualified in a field, could render an opinion with 99% certainty. The present case involving multiple evidentiary issues is not one of those situations.
[131] Further, contrary to Dr. Roberts’s opinion that T.F.’s “yes/no questions [to M.]…were at the mild end of suggestions”, I accept evidence to the contrary provided by Dr. Melnyk-Gryble. Dr. Melnyk-Gryble was qualified as a defence witness to give expert opinion on:
(1) Interviewing procedures for children.
(2) The effects of suggestibility and other factors on statements obtained from children.
(3) The possible influence of a parent on a child’s allegations.
[132] Like Dr. Roberts, Dr. Melnyk-Gryble did not interview M., but had reviewed M.’s police interview and had watched and listened to T.F.’s evidence at trial.
[133] In cross-examination, Dr. Melnyk-Gryble was asked why she believes that the risk of false reporting increases in young children. She responded by including in her answer the issue of suggestibility.
A. The major factor that relates to the likelihood of suggestibility or false reporting is simply age. So three and four-year-old children tend to be more influenced by suggestive factors than older children or teenagers are adults. So the fact that there are multiple suggestive techniques compounds the issue of suggestibility especially with the idea that this is a very young child.
Q. So, just before I follow up on that, you’ve mentioned the phrase “multiple suggestive techniques” …. Can you name what you’re considering there?
A. Sure. Prior to the Mother’s Day questioning, there was the yes/no question, “Did daddy touch you there?”, “Does daddy touch you there?, pointing to the genital area. So that yes/no question. Second, the fact that it’s a repeated question across multiple occasions.
Q. And then to what do you refer with respect to multiple suggestive techniques?
A. After May 13?
Q. Yes.
A. Then we have an additional peppering of specific yes/no questions where [TR], unable to recall specifically what she said, did acknowledge that she asked M a series of very specific yes/no questions about tickling, touching and so forth…. So there was a ramping up of the suggestive techniques on May 13 and 14th … (Trial Transcript, Volume 2 at p. 538 line 10 to p. 539 line 49)
[134] Additionally, I find Dr. Roberts’s conclusion that M.’s statements to Katz are reliable because the interview was conducted “in an open fashion”, does not fully accord with the evidence in that interview.
[135] At pages 13 and 14 of the police interview (Exhibit 1B), Katz put the following questions to M.:
Q. Now, what are you doing when – when daddy – when daddy nudges or licks you?
A. I’m playing hide and seek, but sometimes he – he sees my bum and then pulls my pants down and then I don’t notice it and then he licks me.
Q…So now when you’re playing hide and seek and – and daddy finds you and pulls down your panties and then he licks or nudges your front bum, and that [then] one [what] happens?
A. I think – I think – I think he does that.
Q. You think he does that? Well, remember now we talked about if it’s something if it’s true or not, right?
A. Yeah, it’s true.
Q. Is it true?
A. Yeah.
[136] In describing the hide and seek game, M. did not verbally or physically indicate what part of her body was allegedly licked by J.N. However, Katz in paraphrasing M.’s statement stated, “…And daddy finds you and he pulls down your panties and then he licks or nudges your front bum…” M. responded, “I think – I think – I think he does that”. Katz then asks M., “… If it’s true or not right?” and M. responds, “yeah it’s true”.
[137] Dr. Melnyk-Gryble described Katz’s reiteration of M.’s statement as an inaccurate paraphrase. On that issue, and M.’s agreement that the incorrect paraphrase was true, Dr. Melnyk-Gryble testified as follows:
It seems that Detective Katz is introducing misinformation to M. She is making statements that are not building directly on what M. has previously reported. She’s paraphrasing incorrectly the details of M’s earlier statements…I would actually be quite surprised if a child of this age would then correct spontaneously the interviewer and say that, “ Oh, no, it’s a lie”, or, “Oh, no, I’m kidding” or “Oh, I’m confused”. It’s not surprising to me that M. then reasserts that this is true given the fact she was just told, “We talked about truth and lie is this the truth?”, and then she says yes this is the truth. I’d be surprised if she would self-correct at this point and say, “No, no, no, you’ve got the details mixed up”. She is not even four years of age at this point … Because the information coming through suggestive questioning. She’s being asked a suggestive question, she’s confirming. She’s acquiescing to that information….(Trial Transcript, Volume 2, March 7, 10, 11 and 12, 2014 at p. 595 line 6 to line 31)
Summary
[138] To ensure the integrity of the trial process, the judge acts as a gatekeeper in the preliminary assessment of threshold reliability. The dangers raised in M.’s hearsay evidence, reporting that J.N. had sexually assaulted her, are significant in both the Khan and KGB applications for the following reasons:
(1) In the Khan application those dangers arise from the suggestive questioning by T.F.; M.’s automatic one word “yep” responses to those suggestions; and the strong influence T.F. had on M. because of the close bond between the two.
(2) The surrounding circumstances argued by the Crown as providing guarantees of trustworthiness, including the Barbie doll demonstration, J.N.’s interaction with M., and M.’s disclosure of “teasing secrets”, are speculative and have no probative value.
(3) Similar dangers remain in M.’s KGB statement. Although M. provided additional details to the “yep” responses she gave to T.F., and physically demonstrated how she was sexually abused, T.F.’s previous suggestive questioning negates the “particular stamp of reliability” and independence of M.’s statements to Katz.
(4) Furthermore, the circumstances and method of acquiring the KGB statement do not provide guarantees of trustworthiness. M. was not advised by Katz the importance to tell the truth, nor was it impressed upon M. that she would promise to do so.
(5) As set out in KGB, since M. has recanted her reports of being sexually assaulted, the reliability concerns of her reports are sharpened and additional guarantees of trustworthiness must be secured to render M.’s hearsay disclosure admissible. I find the evidence does not provide these additional guarantees of trustworthiness and reliability. M.’s recantation to numerous sources negates the threshold reliability of her Khan and KGB statements.
(6) M. recanted her statements to:
(a) Her mother T.F.;
(b) Brian Nichols, stating that she was joking when she reported that J.N. had sexually assaulted her;
(c) J.N., in the presence of the CAS case officer Megan Wheeler, while apologizing to J.N. for falsely reporting he had sexually abused her;
(d) The court, during both examination in-chief and cross-examination. This occurred specifically during cross-examination by the Crown when M. stated she was joking and being silly when she reported that J.N. had sexually assaulted her. M.’s evidence was consistent throughout and at no point was it undermined.
[139] For the aforementioned reasons, the Crown has not discharged its onus of proving threshold reliability of M.’s Khan and KGB statements in which she reported she was sexually assaulted.
[140] If however, I am in error in this finding, and the evidence introduced does satisfy the criteria of threshold reliability, I would nevertheless be left with significant reasonable doubt as to the ultimate reliability and truth of M.’s hearsay statements. The Crown has advised that those statements are the sole evidence upon which it relied to prove counts one and two. No other evidence was called. Accordingly, J.N. was found not guilty on both counts in the indictment.
[141] Given that this trial was estimated to conclude within five to seven days, but took 36 days to complete, I wish to make the following comments.
[142] In large part both the Crown and defence are equally responsible for miscalculating the trial time required. Both counsel should have realized that given the complexity of the interrelated evidentiary issues in the Khan and KGB applications, conclusion of the trial within five to seven days was grossly underestimated.
[143] However, at all stages of the proceedings, it is the responsibility of the Crown to assess the strength of its case and the reasonable prospect of conviction. Regrettably, the Crown has failed to carry out that responsibility, relying instead on evidence which on a balance of probabilities fails to meet the criteria of threshold reliability, and, if admitted at trial, would not satisfy this court of proof beyond a reasonable doubt on both counts in the indictment.
The Honourable Mr. Justice A. Sosna
DATE RELEASED: September 19, 2014