ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-443
DATE: 20151019
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
F.C.
Debra Moskovitz, for the Crown
Lydia Riva, for the accused
HEARD: January 5-8, 12-16, May 19-21, June 1-4, 2015
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Hearsay Statements Ruling
A. Overview
[1] This case raises the issue of whether the various hearsay statements allegedly made by a four-year-old child, advising of secret sexual activities with an elder relative, are substantively admissible under the principled exception to the rule against hearsay adopted by the Supreme Court of Canada in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531.
[2] The accused faces an indictment that charges him with the commission of five sexual offences. These offences were allegedly committed in Toronto against two sibling complainants. Two of these offences were allegedly committed between April 15, 2001, and April 15, 2003, against the male complainant, MIM. The sexual offences against MIM were allegedly committed when the accused was approximately 68 years old and the complainant was approximately three years old. The other three offences were allegedly committed on or about May 15, 2012, against the female complainant, MM. The sexual offences against MM were allegedly committed when the accused was approximately 82 years old, and the complainant was four years old.
[3] At the time of all five of these alleged offences, the accused and his wife were responsible for the day-care of each of the complainants, who are their great-grandchildren. The offences involve the alleged sexual touching of both sibling complainants, approximately 11 years apart. MIM, the female complainant’s older brother, did not first disclose being touched sexually by the accused until he learned of the sexual touching of his younger sister, MM, in May of 2012. It was at that point that the police commenced their investigation.
[4] When MM was called as a witness by the Crown, she was close to seven years old, but she was not able to respond to questions. During the brief inquiry undertaken to determine her competence as a witness, MM was sometimes able to nod her head affirmatively, or shake her head in the negative, but she was unable to verbally respond to any questions posed to her. In the result, the parties agreed that MM was not competent to give evidence, and I ruled that her evidence could not be received as she was unable to “respond to questions” as required by s. 16.1(3) of the Canada Evidence Act, R.S.C. 1985, c. C-5.
[5] The Crown now tenders the “testimony” of MM through a series of hearsay statements she allegedly made over time to a number of other individuals. More specifically, the Crown tenders a series of verbal statements allegedly made by MM to her mother and her older brother MIM, about the alleged sexual touching by the accused shortly after the alleged offences on May 15, 2012. The Crown also tenders a further verbal statement allegedly made by MM to her mother about the alleged offences some three weeks later on June 5, 2012. Finally, the Crown tenders a videotaped interview statement of MM, involving a worker from the Suspected Child Abuse and Neglect (SCAN) unit at the Hospital for Sick Children (SickKids) on April 2, 2013, more than 10½ months after the alleged offence. The Crown contends that all of these statements by MM are admissible pursuant to R. v. Khan, as they are all reasonably necessary and sufficiently reliable.
[6] The accused is opposed to the admission of any of these hearsay statements allegedly made by MM. More particularly, the accused contends that the alleged statements by MM to her mother and the SickKids worker do not meet the test of threshold reliability, and that the statement by MM to her brother is neither reasonably necessary nor sufficiently reliable to justify its admission.
[7] At the conclusion of the voir dire proceedings conducted to determine the admissibility of this evidence, and after hearing the submissions of counsel on the issues, I advised the parties that I had concluded that the statements that MM allegedly made to her mother on May 15 and June 5, 2012, were admissible for the truth of their contents, but that the other tendered hearsay statements of MM were not substantively admissible. I also indicated that I would provide reasons in support of this conclusion. The following are those reasons.
B. The Principled Approach to the Admissibility of Hearsay Evidence
[8] For centuries, the law of hearsay in Canada and other common law countries had been strictly governed by a general exclusionary rule, and a broad and complex array of exceptions judicially developed and refined over time. Under this long-standing legal regime, the law of hearsay may not have seemed concerned with any unifying legal principle, but it was certain and practical in its routine application. With its landmark decision in Khan, however, the Supreme Court of Canada ushered in a new era, holding that even hearsay evidence that did not fall within one of the traditionally recognized exceptions to the exclusionary rule would still be admissible if it met the twin criteria of reliability and necessity. This flexible new “principled approach” to the admissibility of hearsay provided welcome relief from some of the problems associated with blind adherence to the anachronistic rules and rigid categories that plagued the more traditional “pigeon-hole” analysis of hearsay issues. At the same time, however, the continued operation of the traditional categories of admissibility ensured the necessary level of predictability and practical efficacy required in the practice of criminal law.
[9] In Khan the Supreme Court considered the admissibility of hearsay comments made by a three-and-a-half year old girl to her mother approximately 15 minutes after they left the office of their family physician, where the sexual assault of the child allegedly took place. The child had been alone in the office with Dr. Khan for approximately five to seven minutes, and her mother asked her daughter what they had talked about. The child said that the doctor had asked her if she wanted a candy, and when she replied yes, he told her to open her mouth. The child then said that the doctor “put his birdie in my mouth, shook it and peed in my mouth.” When further questioned by her mother, the child maintained that the doctor had “put his birdie in my mouth” and complained that he “never did give me my candy.” According to the child’s mother, the term “birdie” meant “penis” to her daughter. Subsequent forensic examination of a “wet spot” noticed on the sleeve of the child’s sweater revealed a mixture of semen and saliva that had been mixed together before being deposited on the sweater.
[10] In a unanimous judgment, authored by McLachlin J., as she then was, the court held, at pp. 542, 548, that these statements were substantively admissible for the truth of their contents. McLachlin J. held that the statements were “reasonably necessary” because the trial judge had concluded, albeit erroneously, that the child was not competent to give evidence. Further, McLachlin J. held that the statements bore sufficiently “strong indicia of reliability” because: (1) the child was “disinterested” in the sense that the statements were “not made in favour of her interest,” and thus she had “no motive to falsify her story, which emerged naturally and without prompting;” (2) the child “possessed peculiar means of knowledge of the event” that she shared with her mother; (3) the evidence of a “child of tender years” on such sexual matters bears its own “special” and “peculiar stamp of reliability” given that such children are generally not adept at “fabricating tales of sexual perversion” and are manifestly unlikely to use their reflective powers to concoct an untruth about sexual acts which are in all probability beyond their ken; and (4) the statements by the child were “corroborated by real evidence.”
[11] Speaking more generally about the issue of threshold reliability, McLachlin J. noted, at p. 547, that “many considerations” may be relevant on the issue of reliability, including such matters as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement. Further, McLachlin J. made it clear that she was not suggesting that certain categories of evidence (i.e. young children complaining of sexual encounters) should always be regarded as sufficiently reliable to justify the admission of the evidence. McLachlin J. summarized the conclusions of the court as follows, at p. 548:
I conclude that hearsay evidence of a child’s statement on crimes committed against the child should be received, provided that the guarantees of necessity and reliability are met, subject to such safeguards as the judge may consider necessary and subject always to considerations affecting the weight that should be accorded to such evidence. This does not make out-of-court statements by children generally admissible; in particular the requirement of necessity will probably mean that in most cases children will still be called to give viva voce evidence.
[12] The jurisprudence that has developed in the quarter century since the decision in Khan has elaborated on the nuances of the underlying principles of necessity and reliability. In so doing, however, the courts have continued to maintain the general rule that all hearsay evidence is presumptively inadmissible. This is due to concerns over its reliability, being able to test its reliability, the absence of contemporaneous cross-examination and any solemn oath or affirmation, and the fact that the trier of fact is unable to observe the declarant and consider his or her demeanour in making the statement. This presumption is reflected by the general operation of the exclusionary rule concerning such evidence, with the onus cast on the party tendering the hearsay evidence to establish its admissibility on a balance of probabilities. See R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 42, 47-49, 59; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 78, 85; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at paras. 2, 31-32; R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, at para. 97, leave denied, [2014] S.C.C.A. No. 254.
[...continues exactly as in the source text...]
Kenneth L. Campbell J.
DATE: October 19, 2015
COURT FILE NO.: 13-443
DATE: 20151019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
F.C.
HEARSAY STATEMENTS RULING
K.L. Campbell J.
Released: October 19, 2015