Court File and Parties

COURT FILE NO.: 16-40000005-00AP DATE: 20160927 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent - and - Valentine Ngoddy, Applicant

BEFORE: B. L. Croll J.

COUNSEL: M. MacDonald, for the Crown, Respondent M. Salih, for Valentine Ngoddy, Appellant

HEARD: September 12, 2016

ENDORSEMENT

Introduction

[1] Valentine Ngoddy (the “Appellant”) appeals his conviction of sexually assaulting MGW (the “Complainant”) between January 14 and 15, 2014.

[2] The Complainant is an autistic, bipolar, developmentally delayed woman. The Appellant is a personal support worker who worked as a temporary agency support worker at the group home where the Complainant lived.

[3] The Complainant did not testify at trial. Rather, the hearsay statement about the assault that the Complainant provided to her personal support worker was admitted for the truth of its contents.

[4] The Appellant submits that the trial judge erred in convicting the Appellant. In particular, the Appellant submits that the errors include:

a. Admitting the Complainant’s untested and unreliable hearsay statement for its truth; b. Incorrectly applying the burden of proof through an improper W(D) analysis, in particular, by improperly rejecting the Appellant’s evidence and engaging in a credibility contest; c. Providing insufficient reasons for rejecting the Appellant’s evidence in its entirety; d. Applying stricter scrutiny to the Appellant’s sworn testimony than to the Complainant’s unsworn, unrecorded, untested, uncorroborated, and contradicted hearsay evidence; and e. Using the Complainant’s deteriorating behaviour eleven months after the alleged assault as corroborative of the allegations, and misapprehending the evidence on this point.

[5] At the conclusion of submissions on the appeal, the Appellant, who had surrendered into custody, was released on conditions. These conditions included that he again surrender into custody at the institution from which he was released, by 6:00 p.m. on the day before the issuance of the appeal decision. Counsel were notified on September 21, 2016 that the appeal decision would be issued on September 27, 2016.

Background Facts

[6] The Complainant did not testify and was never cross-examined. On January 15, 2014, after returning from her day program, she made a spontaneous oral statement in the washroom of her group home to her personal support worker, Shree McIntosh, alleging a sexual assault by “Mike”. The Complainant asked Ms. McIntosh: “Why did agency staff, Mike, kiss my breasts, touch my vagina and put his penis on my body?”: R. v. Ngoddy, 2015 ONCJ 783, 129 W.C.B. (2d) 148, at para. 16 [“Ngoddy”].

[7] The trial judge determined in a pre-trial ruling that this statement was admissible for the truth of its contents, and after trial, determined that it was ultimately reliable.

[8] The Appellant worked the night shift at the group home two days per week. He was working on the evening of January 14, 2014. He denied ever sexually assaulting the Complainant, and denied that the Complainant ever called him “Mike.”

[9] The trial judge did not believe the evidence of the Appellant, nor did it raise a reasonable doubt in her mind. The trial judge found the Appellant guilty of one count of sexual assault.

Was the hearsay statement unreliable and erroneously admitted for its truth?

[10] In exceptional cases, hearsay evidence can be admitted under the principled approach if it satisfies the twin requirements of necessity and reliability: see R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 9; see also R. v. Khan, 1990 SCC 77, [1990] 2 S.C.R. 531, 11 W.C.B. (2d) 10; R. v. Smith, 1992 SCC 79, [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590; and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144.

[11] There is no issue on appeal on the question of necessity, given the Complainant’s circumstances, including her traumatized reaction to the practice visit to the courthouse. It is on the question of both threshold and ultimate reliability that the Appellant submits that the trial judge erred.

[12] Dr. Bruce Linder was qualified as an expert in psychology, rehabilitation, counseling, and behavioural analysis for both the admissibility hearing and the trial proper.

[13] The trial judge cited the following reasons in her pre-trial ruling on the admissibility of the Complainant’s statement: Ngoddy at para. 25:

• this was a spontaneous utterance made to a person who the complainant trusted;
• the statement was not prompted by anything said by the recipient, Shree McIntosh;
• although there may be an issue as to the degree of contemporaneity of the statement, Dr. Linder testified that MGW needs to consider traumatic events before being able to speak of them;
• Dr. Linder stated that the complainant has the ability to recall emotionally significant events and that she will speak about then repeatedly. MGW’s personal care workers described the complainant repeatedly mentioning the defendant and her allegations of sexual contact;
• there was no indication of any animus against the defendant or any motive to fabricate.

[14] These factors were again relevant for the trial judge’s assessment of ultimate reliability.

[15] While the Appellant accepts that the statement was made spontaneously to a person the Complainant trusted, the Appellant takes issue with the other factors relied on by the trial judge to support threshold reliability.

[16] In particular, the Appellant submits that the first and second reasons are duplicative of one another. I agree that the finding that the statement was spontaneous is simply another way of saying that it was not prompted by anything said by the recipient.

[17] I am also of the view that the Complainant’s method of processing emotionally significant information does not go to the reliability of the statement. Rather, it simply explains the absence of a reliability indicator, namely, the contemporaneity of a statement.

[18] In coming to her assessment about threshold reliability, the trial judge also relied on the repeated assertions made by the Complainant. The evidence indicated that the Complainant repeatedly mentioned the Appellant and the allegations of a sexual assault to her personal care workers.

[19] Dr. Linder testified about the repetitive character of the Complainant’s reaction to emotionally significant events. He opined that, among other things, people with autism “have a lot of repetitious behaviour, including verbal behaviour. So the act of saying it once could, in fact, lead to her scripting the same response, which makes it reliable.”

[20] These repeated assertions raise the issue of a prior consistent statement. The Respondent submits that the repetition does not amount to reliance on a prior consistent statement because the trial judge used the evidence of repetition in light of Dr. Linder’s evidence about the Complainant’s processing of “emotionally significant events.” However, it is trite to say that falsehoods can be spontaneously asserted and repeated. The risk of falsehoods being repeated is even more acute in this case, given the Complainant’s cognitive limitations, her ability to recall and recount what may have occurred, and the many inconsistencies in her different statements.

[21] In my view, the Complainant’s repetition of the allegations does amount to a prior consistent statement, which does not fall within any exception to the rule excluding such statements: R. v. C. (M.), 2014 ONCA 611, 115 W.C.B. (2d) 585, at paras. 87–89 [“C. (M.)”]. The Complainant’s multiple assertions cannot support the threshold reliability of the initial hearsay statement: R v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 83 [“Couture”]; R. v. T. (D.), 2014 ONCA 44, 111 W.C.B. (2d) 332, at para. 87 [“T. (D.)”]; see also C. (M.).

[22] The Complainant’s repeated mentioning of the Appellant and the allegations also contain an implied assertion that the Appellant sexually assaulted the Complainant: see C. (M.) at paras. 93-94. On this basis as well, the repetition should not be used to support the threshold reliability of the Complainant’s initial statement to her personal support worker.

[23] I am also of the view that the trial judge erred in her consideration of motive when assessing threshold reliability. She stated that there was no evidence of any animus against the Appellant or any motive to fabricate.

[24] In R. v. Czibulka, 2004 ONCA 22985, 189 C.C.C. (3d) 199, 190 O.A.C. 1, at paras. 43-45 [“Czibulka”], the Court stated as follows:

It seems to me the record will disclose some variation on three scenarios where the Crown seeks to tender a hearsay statement under the Khan / Smith model of the principled approach. First, the Crown may be able to show that the declarant had no known motive to fabricate the hearsay story to this witness about this accused. Khan and Smith (in respect of the first two statements) were such cases. Conversely, the circumstances may be such that either because of direct evidence or logical inference it is apparent that the declarant did have a motive to fabricate this story. Starr and the third call in Smith would seem to be such cases. Or, the case may be one where there is simply no evidence and no logical inference that the declarant had no motive to lie. In the last scenario, motive is in effect a neutral consideration. Because it is for the proponent of the hearsay evidence to show that it was made under circumstances of trustworthiness, if there are few other compelling circumstances of reliability the application to admit the hearsay statement will probably fail. If there are other indicia (and for example in Khan there were many others) the statement may or may not be admitted depending on the strength of those other factors on the reliability issue.

Lack of evidence of motive to fabricate is not equivalent to proved absence of motive to fabricate. In other words, a finding that there is simply no evidence one way or the other that the declarant had a motive to fabricate cannot be converted into a finding in favour of the proponent that the declarant had no motive to fabricate……

Where absence of motive to fabricate is an important factor in resolving the reliability question I do not see how a trial judge could be satisfied the statement possessed ‘sufficient elements of reliability’ in the absence of evidence of motive.

[25] In this case, there was no evidence one way or the other with respect to a motive for the Complainant to fabricate. In fact, no witness was ever questioned about motive. Motive in this case is a neutral factor, and as such, it is eliminated as one of the bases for the trial judge’s finding of threshold reliability.

[26] In R. v. Dupe, 2016 ONCA 653, [2016] O.J. No. 4586, at para. 46 [“Dupe”], Doherty J.A., writing for the Court, reviewed the case law and stated:

In determining whether hearsay is sufficiently inherently trustworthy to warrant its admission, the court may consider not only the circumstances surrounding the making of the statement but other evidence properly before the trier of fact supporting or undermining the accuracy of the out-of-court statement.

In my view, the trial judge’s admissibility ruling does not address other material evidence that serves to undermine the reliability of the Complainant’s statement.

[27] In this regard, I note that there are numerous inconsistencies in the six different statements that the Complainant provided, including two videotaped statements to police. In particular:

i. The Complainant provided inconsistent dates for the assault, ranging from December 31, 2013, to January 11, 13, 14, and 15, 2014; ii. The Complainant’s first statement to Ms. McIntosh did not include a date for the alleged assault; iii. In one statement, the Complainant stated that Ms. McIntosh was present during the sexual assault, an assertion that was denied by Ms. McIntosh. While I accept that it is not clear from the video interview whether the Complainant was referring to Ms. McIntosh being in her room, or elsewhere in the group home at the time, this ambiguity compounds the questions regarding the Complainant’s account. iv. The Complainant never identified the Appellant, whose name is Valentine, not Mike, and the only time Ms. McIntosh heard the Complainant call the Appellant Mike was on January 14, which then led Ms. McIntosh to assume that the Appellant had assaulted the Complainant.

[28] Dr. Linder’s evidence also raises questions about the threshold reliability of the Complainant’s statement to Ms. McIntosh. While he described the Complainant’s high average visual and spatial comprehension and memory, he also expressed some concern that the Complainant could confabulate, that is, fabricate imaginary experiences as compensation for loss of memory.

[29] Dr. Linder also stated that individuals like the Complainant become “disorganized in their thinking” and mix things up while under stress. An example of this confused thinking arose during Dr. Linder’s interview with the Complainant, where he noted that she would spontaneously talk about a sexual allegation against another man, a staff worker from a previous setting. She expressed this by stating “tickled all body parts; had penis out; with hair pin; tickled body parts.” These allegations overlap with the “Mike” allegations, and they generate legitimate concern over whether the Complainant’s allegations were confused, mixed up, or false.

[30] Finally, Dr. Linder testified that the Complainant’s memory is “quite compromised” under “standardized test conditions.” His opinion that the Complainant could have good memory with regard to emotionally significant events, a factor that the trial judge relied on in her admissibility ruling, was derived from “anecdotal evidence from others around”. However, it is well established that the factual premise to which the expert applies his or her expertise must be established by evidence that is otherwise properly admissible in the proceedings: C. (M.) at para. 70.

[31] The Appellant further submits that the trial judge improperly considered the Complainant’s regressive behaviour in her examination of threshold reliability. I do not accept this submission. A review of the trial judge’s pre-trial ruling makes it clear that she considered the Complainant’s regressive nature only with respect to the necessity criterion of the hearsay application.

[32] It is always very challenging to assess the evidence of a mentally challenged person: see R. v. I. (D.), 2012 SCC 5, [2012] 1 S.C.R. 149. I also accept that the trial judge’s ruling on the admissibility of hearsay evidence is owed deference by a reviewing court: Dupe at para. 50. However, in the end, threshold admissibility requires that the circumstances under which the statement was made “negate or at least ameliorate the dangers inherent in hearsay evidence”: Czibulka at para. 26; R. v. Kimberley, 2001 ONCA 24120, 151 O.A.C. 42, 157 C.C.C. (3d) 129 (C.A.) at para. 64.

[33] The only robust factor in favour of reliability was the spontaneity of the statement. However, given the issues about the Complainant’s mental challenges, it cannot be the case that reliability can be inferred solely from her unprompted account of what occurred. As stated in Czibulka, at para. 26, if the court cannot say that the contents of the hearsay statement “could not reasonably have been expected to have changed significantly had [the deceased] been available to give evidence in person and subjected to cross-examination”, threshold reliability has not been made out: see also R. v. Smith, 1992 SCC 79, [1992] 2 S.C.R. 915, 139 N.R. 323, at para. 45.

[34] In this regard, the Crown submits that in this case there has been a functional alternative to cross-examination, and that the Complainant’s evidence would not have changed significantly if she had testified and been subject to cross-examination. The Crown position is rooted in the fact that the Appellant testified that he had no significant contact with the Complainant, provided no alternative version of events that could be put to the Complainant in cross-examination, and suggested no motive to fabricate that could have been put to the Complainant. As such, the Crown submits that there was little basis for cross-examining on the facts. The Crown further submits that cross-examination on the Complainant’s reliability was thoroughly conducted in the testimony of Dr. Linder and the support workers who testified.

[35] I am not persuaded by this Crown submission. Given the varying accounts provided by the Complainant, there was a basis for cross-examination, notwithstanding the Appellant’s position at trial. It also cannot be the case that the reliability of the Complainant’s evidence can be tested by asking questions of other witnesses. In Whitfield v. Whitfield, 2016 ONCA 581, 269 A.C.W.S. (3d) 193 [“Whitfield”], a case involving repressed memories of sexual assault, the main support for the respondent’s evidence came from her expert witness, a psychologist. The psychologist opined that, while she could not be certain, there was a strong indication that the respondent had been sexually abused regularly over a long period of time. Citing R. v. Marquard, 1993 SCC 37, [1993] 4 S.C.R. 223, 108 D.L.R. (4th) 47, at para. 54, the court reiterated the caution that there is a very fine line between expert evidence going to credibility alone and expert evidence admitted in support of the Complainant’s testimony. It determined that the trial judge erred by relying on the expert’s evidence to corroborate the truth of the Complainant’s fragmented recovered memories: Whitfield, at para. 8.

[36] In Couture, at para. 99, the Court cited Wigmore on Evidence, Chadbourn rev. 1974, vol. 5, at p. 252, at s. 1420, in its consideration of the reliability of out-of-court statements that cannot be subject to cross-examination:

There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a skeptical caution would look upon it as trustworthy (in the ordinary instance) in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured. [Emphasis added.]

[37] In this case, for the reasons discussed, it cannot be said that the circumstances are such that even a skeptical caution would look upon the Complainant’s first statement to her caseworker as trustworthy with a high degree of probability. I am not satisfied that the hearsay statement of the Complainant upon which the Crown relied was sufficiently reliable to justify its admission under the principled exception to the rule against the admissibility of hearsay evidence.

Conclusion

[38] Accordingly, I am of the view that the trial judge erred in admitting the hearsay statement of the Complainant for its truth. Given this finding, it is not necessary for me to consider the other grounds of appeal advanced on behalf of the Appellant.

[39] The Complainant’s statement is critical to the prosecution. The appeal of the conviction is allowed, the conviction is set aside, and an acquittal entered.

Croll J. Date: September 27, 2016