CITATION: R. v. S.S., 2017 ONSC 5459

COURT FILE NO.: 153/16

DATE: 2017-09-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.S.

Kelli Frew, for the Crown

Kirkor Apel, for Mr. S

HEARD: June 19 – 22, 26 & 27, 2017

REASONS FOR JUDGMENT

gray J.

1Mr. S. is charged in an indictment with two counts: sexual assault and sexual interference with respect to his niece, between November 24, 2013 and March 31, 2015. The niece’s date of birth is […], 2007, so that at the time of trial she was ten years old. The alleged offences occurred when she was between six and eight years old. Where is it necessary to refer to her by name, I will use her initials, E.B. I will refer to the accused as S.S. Where it is necessary to refer to other witnesses who are related to her, I will use their initials.

2At the conclusion of the trial, I was urged by counsel for S.S. to deliver a verdict, and deliver my reasons later. While I was reluctant to do so, I acceded to his request. I found S.S. guilty on both counts. What follows are my reasons.

3The most significant part of the Crown’s case consisted of an unsworn hearsay statement by E.B. She was interviewed by a police officer, Detective Constable Matt Cunnington on March 31, 2015.

4A preliminary inquiry was held on November 30, 2016, and E.B. was called to give evidence. It was understood that the Crown would be filing, on consent, a video tape and transcript of the interview of E.B. that had been conducted on March 31, 2015.

5E.B. gave her evidence, on consent, in a child-friendly room, with a support person present, and her evidence was transmitted to the courtroom through closed-circuit television.

6After E.B. promised to tell the truth, the video tape of her interview was played. After some preliminary matters were dealt with, E.B.’s evidence in-chief, in its entirety, was as follows:

MS. FREW: Q. Okay. E, can you hear me?

A. Yeah.

Q. Okay. And did you hear everything from that video?

A. Yeah.

Q. Okay. And is that you we saw in there?

A. Yeah.

Q. Okay. And do you remember Officer Matt, now?

A. No, not really.

Q. He’s not that memorable? What we saw you telling the officer on that video, is that all the truth?

A. I don’t really remember.

Q. You don’t remember? Okay. So, you don’t remember if it was the truth, or you don’t remember what happened, or you don’t remember talking to the officer?

A. Don’t remember.

Q. Don’t remember what though?

A. All those things you actually said.

Q. Okay. So, you don’t remember talking to the officer?

A. No.

Q. Okay. And do you remember –when you watched that video and you hear yourself talking about what happened with your uncle – did you hear that part? A. Yes.

Q. Do you remember that happening in the apartment?

A. No.

Q. You don’t remember?

A. I don’t remember.

MS. FREW: Okay. If I could file this video as the first exhibit, please? And the transcript, perhaps as Exhibit (b) on that?

THE COURT: Yes.

7E.B. was cross-examined by Mr. Apel, counsel for the accused, but it is clear that E.B. was no more informative during her cross-examination than she had been during her direct examination. In other words, she claimed, in essence, that she remembered nothing about any of the events that she had related to Officer Cunnington during the interview with him, and indeed she did not really remember the interview.

8As noted, counsel for the Crown made application before me for an order allowing the introduction of E.B.’s transcribed interview into evidence, pursuant to the principled exception to the hearsay rule. A voir dire was conducted in order to determine the issue. It was agreed that any evidence admitted after the voir dire would be regarded as having been admitted during the trial proper, so that it would not be necessary to hear the evidence again.

9The Crown called six witnesses on the voir dire, and counsel for S.S. called one witness. S.S. himself did not testify.

10Charlotte Kennedy testified. She is a probation and parole officer, and knows S.S., having supervised him.

11Ms. Kennedy testified that she called someone at the Halton Children’s Aid Society in February, 2015. She testified that S.S.’s sister had called her, expressing some concerns about his state of mind. Ms. Kennedy set up a meeting with S.S.’s sister for February 23, 2015. The meeting did not occur. S.S.’s sister instead contacted Ms. Kennedy and advised that she would take her daughter to a doctor, and would contact Ms. Kennedy later.

12Ms. Kennedy referred the matter to Tina Smelt of the Halton CAS in March, 2015.

13On cross-examination, Ms. Kennedy confirmed that there had been no concern expressed to her about any alleged sexual assault on E.B.

14Detective Constable Matt Cunnington testified.

15Officer Cunnington testified that he was assigned to this case on March 31, 2015. He understood that the Children’s Aid Society had physical custody of E.B., and she was on her way to the police station with Tina Smelt.

16Officer Cunnington met Ms. Smelt at the police station, who said she had attended E.B.’s school. E.B. had disclosed some alleged sexual touching by her uncle, S.S. She said E.B. did not want to live with her uncle anymore. She had apparently touched his penis, and seen “white stuff” come out.

17Officer Cunnington went to a “soft” room where he interviewed E.B. The interview was video recorded, and a transcript of the interview was subsequently prepared. It was conducted from approximately 3:00 p.m. until approximately 3:50 p.m.

18A DVD of the interview was played before me in court, and the DVD and a transcript of the interview were tendered as exhibits. I will discuss the elements of the interview in a moment.

19Officer Cunnington testified that he interviewed E.B.’s mother, L.S., shortly after the interview with E.B. He subsequently briefed Tina Smelt on the interview. Ms. Smelt advised him that as a result of the interviews, the CAS would apprehend E.B. and take her into care. That was, in fact, done at the police station. L.S. was quite upset.

20Officer Cunnington testified that he next saw E.B. at a meeting with Crown counsel before the preliminary inquiry. He testified that E.B.’s demeanour was significantly different, and E.B. did not recognize him.

21As noted, the interview conducted by Officer Cunnington with E.B. took approximately 50 minutes. Having reviewed the DVD and the transcript, it is clear that Officer Cunnington, almost entirely, asked open-ended questions without suggesting answers. His tone was friendly, and he was able to develop a good rapport with E.B.

22While I will discuss the evidence of Dr. Louise Sas, an expert called by the Crown, later, I would note at this point that in her opinion the interview was conducted in accordance with a protocol developed by the National Institute of Child Health and Human Development.

23Officer Cunnington explained the purpose of the interview and advised that a video camera and microphone were present. He emphasised the importance of telling the truth, and he inquired of E.B. as to her understanding of the difference between the truth and a lie.

24As the interview unfolded, and more information was elicited from E.B., on occasion Officer Cunnington would remind E.B. of things she had said to Tina Smelt earlier. He did so without being confrontational, but simply as a means of attempting to jog her memory.

25E.B. said that she was afraid of her uncle, and that she had already told her mother and Tina Smelt what had happened.

26Shortly after the beginning of the interview, E.B. advised that her uncle unzips his zipper and touches her “right here” – in her vagina area. She said he told her to take off her pants and her underwear. She did so and then he “unzipped” and took off his pants. She then demonstrated how he masturbated. When asked if she liked it, she said she had to say yes but she did not like it. She said when her mom was coming he pulled up his pants and zipped it and put on his belt, and she put on her underwear and her pants “and everything”.

27When asked to describe what she saw, E.B. said she saw her uncle’s penis. She used the word herself and it was not suggested to her.

28She referred to her “private stuff”, and indicated her vagina. She said her uncle placed his “cock” in her private stuff. Again, the word she used was volunteered by her, and she was not prompted. At one point, she described her uncle as standing. When Officer Cunnington asked her how he was standing on the bed, she corrected him and said he was standing on the floor.

29E.B. said that after the sexual contact, her uncle told her to go and watch a movie on TV. When asked what kinds of movies she watched, she told Officer Cunnington that they included Harry and the Hendersons, Barbie and similar movies.

30Officer Cunnington advised E.B. that Tina Smelt had said E.B. had told her about some “white stuff”. E.B. advised Officer Cunnington that she did not know about any white stuff and did not remember anything about it. When asked what happened after E.B. had touched her uncle’s penis, she said it stopped when her mother came in. She said her mother came home in a limo with her godmother.

31E.B. said her mother knocked at the door to get in. She said that while her mother has a key to the house, sometimes it’s locked at the bottom and at the top of the door so she could not come in. She said at that point they put all of their stuff on and unlocked the door and said “Hello Mom”. She said her uncle said to her “Don’t tell your mom.”

32E.B. was asked to describe what happened when her uncle did something with her private parts. She said “he put his penis in here”. She indicated her vagina. She said she didn’t like it. She told Officer Cunnington that she would tell her mother when her uncle was not there. She said she did so.

33She told Officer Cunnington that when this happened it felt “gross”. She said it stopped when her mom was knocking on the door.

34E.B. said she told her mother when she was going to school. She told her mother everything about her uncle in the car. She said her mother said “Oh I see”. E.B. said “Don’t tell Uncle”, and she never did.

35Officer Cunnington left the interview room in order to consult with Tina Smelt and another officer. While Officer Cunnington was gone, another officer entered the room and had some brief conversation with E.B. The officer advised E.B. to relax, and that he would try to find Officer Cunnington.

36After that officer left the room, E.B. began to sing very softly. What she sang was as follows:

Some day I want day – I wanna live with my mom but not my uncle. It’s just – I just wanna live. I wanna just live. I wanna sleep. So watching you where – I’m where, and I where am I? I am in a police officer’s. Yeah, yeah. Mm,mm. I was born in British Columbia. It’s the truth. I am not lying. And so you go I, I, I – how many minutes is a (inaudible)?

37Tina Smelt entered the room and had a brief conversation with E.B., and essentially told her that she would be asked a few more questions and it would be all done.

38Officer Cunnington reentered the room, and continued the interview.

39Officer Cunnington asked E.B. who was with her mother when the knock came at the door. She said it was her godmother, whose name is P. Her mother had wanted P. to drive the limo. She said her mother drives a limo for work.

40E.B. was asked again about her uncle’s penis and her vagina. E.B. said he just came from his room and said “take off your clothes” and everything. She took off everything, and he came in front of her and touched her vagina. She said he touched her vagina with his hands and it felt “just nasty”.

41E.B. said her uncle was playing with his penis. She said there’s a little hole right there in the middle and “it comes out milk”. She said it looked like “plain, gross milk.” She said the milk went on her stomach. She was not wearing any clothing.

42When asked to describe how her vagina felt when her uncle’s penis was in there, she said it felt “just nasty”. She said it did not hurt.

43Officer Cunnington asked E.B. to tell him about the door locks. She said her uncle locked it on the bottom and at the top.

44When asked how she felt about her uncle, E.B. said “I feel nasty with uncle.” When asked how she feels about living with him, she said “I feel not even good.”

45Doctor Louise Sas testified. She is a registered psychologist, and was qualified as an expert in the following areas:

a) child behavioural and clinical psychology;

b) child memory;

c) behaviours of victims of child abuse and child witnesses in order to give evidence on the competency or capacity to testify;

d) interviewing children and communication of evidence by children.

46She has extensive experience, and has testified as an expert witness in many cases. Indeed, she testified as an expert in a case that ultimately was decided by the Supreme Court of Canada, R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829, which I will discuss more fully later.

47Dr. Sas interviewed E.B. twice, on April 18, 2017, and May 8, 2017. She prepared a written report, which was filed as an exhibit, and she gave viva voce testimony.

48Dr. Sas reviewed the interview with E.B.; the notes of Officer Cunnington; the Children’s Aid Society log of interviews with E.B.; and the preliminary inquiry transcript.

49Dr. Sas described her first interview with E.B. as one in which E.B. was comfortable, bright, articulate and personable.

50Dr. Sas testified that when the issue of E.B. testifying in court was raised, E.B. became apprehensive and guarded. When asked if she knew why Dr. Sas was there, she said “it’s because I forgot everything.” She made it clear that she did not want to go to trial about her uncle. Fundamentally, she had a fear of being taken away. She was upset that she had been apprehended, and it happened after she had made disclosures about her uncle. She was scared about being in the courtroom and she was afraid something would happen if she said something. She said she said she forgot, but she was too afraid she would be taken away again.

51Dr. Sas testified that during the second interview, E.B.’s behaviour was different. She was very reluctant to be there. She did not want to see Dr. Sas, and she was concerned about being recorded.

52Dr. Sas is of the firm opinion that to force E.B. to testify will serve to unduly further traumatize her. She expressed that opinion both in her report and in her viva voce testimony.

53On cross-examination, Dr. Sas acknowledged that a possible cause of trauma is lying on the part of the child – that is, the child does not want to lie again.

54In her report, Dr. Sas gives a rather extensive assessment of the reliability of the video-taped interview. I have not considered that portion of her report, and I give it no weight. In my view, that portion of her report comes perilously close to oath-helping.

55Tina Smelt testified. She has been a child protection worker with the Halton Children’s Aid Society for about nine years.

56Ms. Smelt testified that she had been contacted by S.S.’s probation officer, who apparently had concerns about the conditions in E.B.’s home, and some of the adult contact with her. She arranged to meet the child at the school.

57Ms. Smelt arrived at the school on March 31, 2015. She spoke to E.B., who was friendly, articulate and smart. She did not advise E.B.’s mother that she would be interviewing E.B.

58After the interview, she took E.B. to the police station. She told E.B. to tell the police officers what she had told her.

59Ms. Smelt observed the interview with E.B. at the police station. What she heard was similar to what E.B. had told her.

60After the interview with E.B., E.B.’s mother was interviewed. After that interview, E.B.’s mother was advised that E.B. would be apprehended. E.B.’s mother was not happy about it.

61Ms. Smelt testified that as she was being driven away from the police station, there were no tears on the part of E.B. She said she was glad she would not be living with her uncle anymore. She wondered about what home she would be living in. She was told she would stay in her new home until she could be returned safely to her mother. Ultimately, E.B. was returned to her mother in August, 2016.

62On cross-examination, Ms. Smelt was asked whether E.B. might be apprehended by the society again if her mother were to testify. Ms. Smelt testified that that might occur, depending on what the testimony was.

63Ms. Smelt acknowledged that E.B. has had some trauma from the apprehension itself.

64Ms. Smelt acknowledged that E.B. had told her that she had seen a pornographic movie with her uncle, and that the contents of the movie bore some similarity to what she had told Officer Cunnington.

65P.L. testified. She has been E.B.’s godmother since E.B. was five years old. She met E.B. through S.S. who was her boyfriend at the time.

66Ms. L. described the living arrangements at the apartment in which E.B. and her mother lived. She said it is very cluttered, and has two bedrooms. She said S.S. slept in the larger bedroom, and E.B. and her mother slept on a pullout couch in the living room.

67Ms. L. testified that she took E.B. to school and fed her if her mother was working. She said S.S. would watch E.B. if she was not available.

68Ms. L. testified that when she was out with E.B.’s mother, the door would often be locked when she and E.B.’s mother returned. Sometimes there would be one lock, and sometimes two. Sometimes they had to knock a few times before being let in.

69Ms. L. testified that she and E.B.’s mother owned a limo. It was used for weddings and parties. Ms. L. was usually the driver. The limo was sometimes used to pick up E.B. from school.

70On cross-examination, Ms. L. testified that the door was often locked when she left the apartment. She said people tended to lock doors in that neighbourhood. She would often keep the door locked if she was home.

71Carrie Lynn Murray testified. She is a victim witness service worker. She was assigned to assist E.B. in her testimony at the preliminary inquiry.

72Ms. Murray testified that during the time she was in the room where she gave testimony, E.B. constantly pulled at her tights, to the point that they were ripped at the end of the proceeding. She said she was very anxious during the entire procedure.

73On cross-examination, Ms. Murray acknowledged that she did not know whether E.B. was bored or could have been uncomfortable. She was not crying, and she did not appear to be resistant to being there.

74L.S. was called as a witness by counsel for S.S. She is E.B.’s mother, and S.S.’s sister.

75L.S. acknowledged that she signed an Agreed Statement of Facts on April 12, 2016, in connection with the child protection proceedings in the Ontario Court of Justice. The Agreed Statement of Facts gave rise to an order of the same date that restored E.B. to the custody of her mother. In the Agreed Statement of Facts, L.S. acknowledged the following:

a) she had a history of supporting the maternal uncle, including acting as his surety;

b) during a prior involvement in 2011 and 2012, the Society discussed its concerns with her about her level of support for him and the potential risk he could pose to E.B.’s safety;

c) she was cautioned about her considering to act as the maternal uncle’s surety;

d) during past involvements with L.S., the Society warned her not to leave E.B. alone with the maternal uncle;

e) the child has been sexually molested or sexually exploited by the person having charge of the child or by another person where the person having charge knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child;

f) there is a risk that the child is likely to be sexually molested or sexually exploited by the person having charge of the child or by another person where the person having charge knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child; and

g) L.S. now acknowledges that E.B. was sexually abused by the uncle, and that she made a mistake in not following the Society’s direction during prior involvements and leaving E.B. unattended in the maternal uncle’s care.

76In essence, L.S. took the position in her evidence that she made these acknowledgements only because she would not get her daughter back unless she cooperated.

77L.S. testified that E.B. has many friends. She said one of her friends explained various body parts, including what is a vagina and a penis. She said the friend explained what comes out of a male penis.

78L.S. testified that E.B. had never told her that her uncle abused her. She said if E.B. had told her that this had happened, she would have killed him.

79L.S. testified that since E.B. had returned home, she had been very quiet and happy to be home. She did not like being away. She did not want to go to court. She misses her uncle and she loves him.

80L.S. testified that E.B. has asked what would happen if she didn’t tell the complete truth. L.S. has been reluctant to discuss the charges. E.B. has asked if she had to talk to someone who asks questions. L.S. has told her to tell the truth.

81L.S. testified that she has not formulated any opinion about the charges. She wants to be available for E.B.

82L.S. testified that E.B. tends to agree with things that are suggested to her. She has learned from her classmates things about drugs, and sexual activity. She learned about “white stuff” from one particular classmate, who provided a vivid description.

83L.S. testified that E.B. is generally comfortable, except for matters involving court. On that subject, she is intimidated. She is bothered by the prospect that she might be taken away.

84On cross-examination, L.S. said E.B. has sometimes told lies, and then subsequently told the truth. L.S. acknowledged that having locks at both the top and bottom of a door is unusual.

85L.S. confirmed that E.B. was happy that she would not have to take the witness stand.

86On re-examination, L.S. identified a report prepared by the Child Advocacy and Assessment Program at McMaster Children’s Hospital, that disclosed that E.B. was examined and there was no damage to her genital area. The report also contains the following:

The medical literature indicates that approximately 95 per cent of pre-pubertal girls suspected of having been sexually abused have no findings of anal or genital injury at the time of physical examination.

There are many forms of sexual contact which would not be expected to result in injury to genital or anal tissues. These may include instances of digital to genital contact (i.e. fondling), genital to genital contact, oral-genital contact or genital-anal contact.

Furthermore, studies have shown that even if injured, genital and anal tissues typically heal completely with little or no sign of previous trauma. The majority of pre-pubertal girls have a normal genital exam after healing of all but the most severe hymenal tears.

87Also on re-examination, a transcript of the interview of L.S. that was conducted by Officer Cunnington on March 31, 2015 was tendered in evidence. During that interview, which was put into evidence by S.S.’s counsel, it should be noted that L.S. was asked whether she had been told by E.B. about the alleged sexual abuse by S.S. Specifically, Officer Cunnington advised her that E.B. mentioned that she had told L.S. what she told the officer, “and what she told me today is very concerning.” L.S. said “Maybe she did and I’m the one that didn’t understand.” She was asked “Can you think of any reason why she’d be able to describe a penis and, and semen coming out?”, to which she answered “No. But now that’s concerning. So, no.” Officer Cunnington said “And she never told you anything about something like that?”, to which she answered:

She might of. To be honest, she might of and I’m the one who didn’t understand everything because when she talks to me, again, it’s, it’s like “Mom, you know, this happened.” And then I’ll ask her what happened in school. She’ll be like, “I forgot.” And then two days later, “Oh, Mom, you know, so-and-so pushed me.” “Did that happen today?” “No.” so it’s hard for me. I, I try to get everything because whenever I pick her up from the school bus I’m like, “Okay. What happened today in school? What’d you do? Who’d you talk with? What did you play?” All of this. So it’s not like I don’t ask her questions, but, yes, I do hear stories from her but they’re not all very clear.

88Again, when Officer Cunnington advised L.S. “She told me that she told you this.”, L.S. responded “Maybe she did in her own words and I didn’t understand her.”. When Officer Cunnington said “But her own words are pretty clear.”, she stated:

T- to you. Okay. But to me, I know the stories she told me. I don’t’ remember her telling me something like that: mm-k? So if she did, I’m sorry. It’s my fault. I probably wasn’t listening if she did tell me that or I didn’t understand what she’s trying to tell me. If it was clear to you that’s great. Were you reading into something that is not there and it’s probably clear to you? Maybe. We don’t know. I’m not perfect. I’m trying to do the best for my daughter. Now, my daughter, apparently, is not doing well.

Issues

89There are two issues:

a) Is the interview of E.B. admissible in evidence as a principled exception to the hearsay rule?

b) If the answer to (a) is yes, has the Crown proven the guilt of S.S. beyond a reasonable doubt?

90It is clear that the Crown’s case stands or falls on the evidence of E.B. If her video-taped statement is not admissible, there clearly must be an acquittal. The Crown does not contend otherwise.

91Accordingly, I will approach the case in two stages. I will determine the admissibility of E.B.’s statement. If, and only if, it is admissible, I will then go on to determine whether the Crown has proven the case against S.S. beyond a reasonable doubt.

a. Is E.B.’s statement admissible?

i. Submissions

92The Crown submits that E.B.’s statement meets the criteria of necessity and threshold reliability, and should be admitted in evidence.

93The Crown submits that the necessity factor is met by the unwillingness of E.B. to meaningfully testify. It is apparent from her evidence given at the preliminary inquiry that she purports to remember nothing about the interview with the police officer, and anything about the disclosures she made to the police officer during the interview.

94It is also apparent from the evidence of Dr. Sas that to force E.B. to testify again, even to testify as she did at the preliminary inquiry, will cause considerable trauma to her and would not be in her best interests.

95Accordingly, the factor of necessity has been met.

96The Crown submits that the factor of threshold reliability has also been met. The Crown emphasizes that at this point the Court is not to assess ultimate reliability. That is assessed only at the stage of determining whether the Crown has proven the case beyond a reasonable doubt. At this point, the Court must simply assess whether there are sufficient indicia of reliability to permit the evidence to be admitted and considered.

97The Crown submits that the following indicia of reliability are relevant:

a) the statement was given to a person in authority within a reasonable time of the commission of the offences;

b) the interview was conducted in a relaxed atmosphere, and was not intimidating;

c) the judge is able to assess the demeanour of the interviewer and interviewee;

d) the interviewee is comfortable with the interviewer and is not frightened of him;

e) the officer discusses the difference between the truth and a lie with the interviewee and she understands the difference;

f) the interviewee promises to tell the truth;

g) the interview was conducted in accordance with a recognized protocol, as confirmed by Dr. Sas;

h) the interview consisted almost entirely of non-leading and non-suggestive questions;

i) the interviewee is modestly directed towards the subject matter on only a few occasions;

j) the interviewer shows no reaction to statements made by the child;

k) the child corrects the officer if he says something she does not agree with;

l) the child provides significant details of what occurred, including hand actions and descriptions;

m) there is corroboration of many details given by the child, including sleeping arrangements; the somewhat unusual locks on the door; the use of a limo by the child’s mother and godmother; and the fact that S.S. looked after the child after school; and

n) there is no motive to fabricate on the part of the child.

98Counsel for S.S. submits that neither the factor of necessity nor the factor of reliability has been satisfied.

99Counsel submits that the child admitted lying in court to Dr. Sas. Even though the child claims to remember nothing, she clearly does and is lying about it. The child does not appear to be intimidated, and apart from the uncorroborated view of Dr. Sas, the child demonstrates no trauma when viewed either on the videotape of her statement, or in the transcript of the preliminary inquiry.

100In terms of the factor of reliability, counsel points out the following:

a) the child admitted lying to Dr. Sas;

b) the child’s statement about “white stuff” is problematic – she claimed first to have no memory of saying anything about it, and then after a break she remembered;

c) the child told Tina Smelt that she and her uncle saw a pornographic movie, while she told the officer no such thing;

d) the lack of any ability to cross-examine is highly prejudicial to S.S.

101Authorities relied on by the parties include R. v. G.(P.) (2012), 2012 ONCA 859, 292 C.C.C. (3d) 569 (Ont. C.A.); R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829; R. v. G.(P.), 2009 ONCA 32, 242 C.C.C (3d) 558 (Ont. C.A.); R. v. M.U., [2005] O.J. No. 4590 (S.C.J.); R. v. Robinson (2004), 2004 CanLII 31916 (ON CA), 189 C.C.C. (3d) 152 (Ont. C.A.); R. v. F.(W.J.), 1999 CanLII 667 (SCC), [1999] 3 S.C.R. 569; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; and R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298.

1. Analysis

102As I ruled at the trial, the challenged evidence is admissible as a principled exception to the hearsay rule.

103As established in Khan, supra and as elaborated in subsequent cases, the formerly absolute rule (subject to certain historical exceptions) was that hearsay evidence was simply inadmissible. It remains presumptively inadmissible, for valid policy reasons. Foremost of these is the lack of ability to cross-examine.

104For centuries, the right to cross-examine has been considered to be essential. This has been stated and restated many times. Some examples include:

a) “For two centuries, common law judges and lawyers have regarded the opportunity of cross-examination as an essential safeguard of the accuracy and completeness of testimony. They have insisted that the opportunity is a right, not a mere privilege.” (McCormick on Evidence, 7th Ed, at §19);

b) “Not even the abuses, the mishandlings, and puerilities which are so often found associated with cross-examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the medieval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” (Wigmore, Evidence in Trials at Common Law, Volume 5 at §1367);

c) “Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.

That is why the right of an accused to cross-examine witnesses for the prosecution – without significant and unwarranted constraint – is an essential component of the right to make full answer and defence.” (R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 1 and 2.);

d) “Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well-established principle that is closely linked to the presumption of innocence.” (R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at p. 663).

105Notwithstanding these principles, hearsay evidence can nevertheless be admitted notwithstanding the lack of ability to cross-examine. However, that is so only where there are sufficient indicia of reliability to persuade the judge that the lack of the right to cross-examine can be overcome. While this is a feature at both stages of the inquiry, it is perhaps more important at the stage of assessing whether the Crown has proven the case beyond a reasonable doubt. At this stage, I am simply determining admissibility based on the criteria of necessaity and threshold reliability.

106First, as to necessity. There can be little doubt that this criterion has been satisfied.

107It is quite evident from the transcript of the preliminary inquiry that the child was unable or unwilling to give any meaningful evidence. She purported to remember nothing, either being interviewed or the substance of the interview.

108It is also clear, in my view, from the evidence of Dr. Sas, that the child would simply have repeated what she said at the preliminary inquiry if called to give evidence at the trial. Furthermore, it is also clear from the evidence of Dr. Sas that the child would be significantly traumatized if she were forced to simply repeat the exercise that she went through at the preliminary inquiry. Thus, this case is similar in many respects, if not identical to, the situation in R. v. Rockey, supra, where the Supreme Court of Canada held that in view of the uncontradicted evidence of Dr. Sas, which was similar in all respects to the evidence in this case, the criterion of necessity was met.

109I am also satisfied that the criterion of threshold reliability has been met.

110As observed by Dr. Sas, the interview was conducted in accordance with a well-recognized protocol. It was conducted in a relaxed atmosphere. The interviewee displayed no symptoms of concern at being interviewed. For the most part, open-ended questions were used. The interviewee understood the difference between the truth and a lie. The information provided was detailed, and accompanied by physical descriptions. There was some corroboration, albeit mostly on peripheral matters.

111Of significance, I am satisfied that there was simply no motive or reason for the child to fabricate her allegations against her uncle.

112I do not think the evidence of E.B.’s mother, L.S., casts sufficient doubt on the reliability of E.B.’s interview to render it inadmissible. She was obviously not in a position to know directly, one way or the other, whether any sexual abuse occurred. The most significant difference between her evidence and the interview with her daughter was whether E.B. had told her mother about the abuse. While L.S. testified that E.B. had not told her, as noted earlier L.S. advised Officer Cunnington that E.B. might have told her and she did not understand. The fact that E.B. discussed, or might have discussed, sexual matters with classmates does not detract from the reliability of her recorded statement regarding the sexual abuse.

113For these reasons, I was satisfied that the video-taped interview and the accompanying transcript were admissible as a principled exception to the hearsay rule, and I admitted them into evidence. The parties confirmed that no additional evidence would be called, and the evidence on the voir dire would be considered to have been admitted on the trial proper.

114Having admitted the evidence, I then considered the parties’ submissions as to whether the Crown had proven the case beyond a reasonable doubt.

b. Has the Crown proven the case beyond a reasonable doubt?

i. Submissions

115Counsel for S.S. submits that the case boils down to one where credibility and reliability of evidence is critical.

116Counsel submits that it is important to note that there are differences in the versions of events related by E.B. In her interview with Tina Smelt, she said she and her uncle had watched a pornographic movie, in which some of the same sorts of incidents described to Officer Cunnington were mentioned. Counsel submits that this could have been the source of knowledge on the part of E.B. for the “white stuff” she described.

117Counsel notes that it is significant to observe that E.B.’s description of the “white stuff” only emerged after a break occurred in her interview by Officer Cunnington. Furthermore, it is quite possible that she learned about sexual matters, that she described to Officer Cunnington, from her classmates, as she told her mother.

118Counsel submits that E.B.’s credibility is suspect. At the preliminary inquiry, she purported to remember nothing, while she advised Dr. Sas that she does remember.

119E.B. was clearly concerned that if she gave the wrong answer in court, she might be taken away from her mother again. This casts doubt on her credibility.

120Counsel points out that according to E.B.’s mother, E.B. has a history of lying.

121Counsel submits that the absence of a motive to lie is not overly significant. In this connection, counsel relies on the decision of the British Columbia Court of Appeal in R. v. R.W.B., [1993] B.C.J. No. 758 (B.C.C.A.).

122Counsel submits that there is no corroboration of E.B.’s allegations. Furthermore, the report prepared by the CAAP at McMaster Children’s Hospital is consistent with innocence.

123In the final analysis, counsel submits that the Crown has not proven the case beyond a reasonable doubt, and it would be unsafe to register a conviction.

124Counsel for the Crown submits that the case has been proven beyond a reasonable doubt.

125Before a consideration of the evidence of E.B., given through her statement that has been admitted in evidence, the Crown submits that the evidence of E.B.’s mother does not detract from it.

126Counsel points out that there are, in fact, considerable portions of L.S.’s evidence that are consistent with E.B.’s statement. For example, she confirmed the configuration of the apartment and the sleeping arrangements. She confirmed the locking mechanism on the door.

127L.S. was not present during any of the alleged sexual assaults, and is not in a position to say that they did or did not occur.

128Counsel submits that L.S., being the sister of S.S., would be naturally reluctant to incriminate him, and her evidence should be approached with some caution.

129Counsel also submits that in this case it is significant that E.B. has no motive to fabricate false allegations against her uncle. According to E.B.’s mother, E.B. loved her uncle.

130Counsel acknowledges that it is necessary for the Court to consider and apply the criteria discussed by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Fundamentally, counsel submits that the statement made by E.B. should be held to be credible and reliable, and sufficient to prove the guilt of S.S. beyond a reasonable doubt.

131Counsel submits that the factors that the Court should take into account are similar to those that were taken into account in determining the admissibility of the statement. They include:

a) the statement was given to a person in authority, namely, a police officer;

b) the statement was given within a reasonable time after the incidents described;

c) the statement was given in a relaxed atmosphere, and E.B. did not appear to be in any way intimidated;

d) E.B.’s demeanour throughout the interview was relaxed, she was not afraid, and she was forthright;

e) E.B. was comfortable with the officer; she moved at one point to be close to him;

f) E.B. understood the difference between the truth and a lie, and she was able to demonstrate that she did;

g) the interview was conducted in accordance with a well-understood protocol;

h) the interview was conducted, almost entirely, through the use of open-ended questions, without any prompting; information, including details, were volunteered by E.B. in her own words without prompting;

i) E.B. corrected the officer on occasion where appropriate;

j) E.B. provided details where appropriate;

k) albeit on peripheral matters, there was corroboration of E.B.’s statement in a number of respects: the fact that the apartment was cluttered; she confirmed the sleeping arrangements; she described the somewhat unusual locking system on the door; she described how she was looked after after school; and she described how her mother and godmother used a limo;

l) There was corroboration of the fact that S.S. had many opportunities to commit the assaults.

132Counsel submits that the absence of an ability to cross-examine E.B. on her evidence, while not to be overlooked, is not determinative. In this case, counsel submits that there are significant reasons to conclude that E.B.’s statement is sufficiently reliable that a judge can be satisfied of S.S.’s guilt beyond a reasonable doubt.

133Counsel submits that any discrepancies between versions of events described by E.B. to Ms. Smelt and Officer Cunnington are not significant in the scheme of things, and should not result in any discounting of her evidence.

Analysis

134As acknowledged by the Crown, this case falls to be decided based on an analysis required by the well-known case of R. v. W.(D.), supra. As stated by Cory J. at pp 757 and 758:

A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

135While the analysis of Cory J. was in the context of a jury trial, there is no dispute that it must be followed by a trial judge sitting without a jury. Furthermore, as discussed by the Court of Appeal in R. v. D.(B.), 2011 ONCA 51, the principles discussed in R. v. W.(D.) are applicable whenever any evidence is called that is favourable to the accused, and they are not applicable only when the accused himself or herself gives evidence. As stated by Blair J.A. at para. 114:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt: Challice. In that event, they must acquit.

136In this case, evidence was called on behalf of S.S. In accordance with the principles outlined by Cory J. in R. v. W.(D.), I must consider that evidence in the context of deciding whether the evidence as a whole leaves me in a state of reasonable doubt. In this case, after doing so, I am not left in any reasonable doubt.

137At the end of the day, I do not think the evidence of L.S. adds a great deal.

138First of all, she was in no position to confirm or deny any of the specific allegations of E.B.

139In the main, her evidence suggested that E.B. may have acquired her knowledge about sexual matters from her classmates, and she denied that E.B. had told her about the abuse on the part of her uncle.

140I do not think the fact that E.B. may have discovered things about sexual matters from her classmates (which is likely not unusual), detracts from the fact that E.B. was able to describe in some detail the way in which her uncle got her to strip naked, fondle her genitals, masturbate in front of her, and ejaculate with his semen ending up on her stomach. The graphic way in which these incidents were described was compelling, and I am not convinced that they were the product of some generic description that may have been conveyed by a classmate.

141As for L.S.’s denial that E.B. disclosed the abuse to her, I note that in L.S.’s own statement to Officer Cunnington, she acknowledged on more than occasion that E.B. might have made such a disclosure to her, and she simply did not understand it.

142I have significant doubts about the credibility of L.S. Quite apart from her natural inclination to support her brother, it is significant, in my view, that she acknowledged in the child protection proceedings that E.B. had been sexually abused by S.S. I do not accept her explanation that she made such a serious acknowledgement simply to regain custody of E.B.

143In assessing the interview of E.B. by Officer Cunnington, which I have allowed into evidence, it is necessary that I make allowances for her age. This was discussed by McLachlin J., as she then was, for the Supreme Court of Canada, in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. At p.133, she stated:

The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp.54-55, when, in referring to submissions regarding the court of appeal judge’s treatment of the evidence of the complainant, she said that

...it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

144While, as noted by McLachlin J. in the next paragraph of her reasons (which I have not quoted), this more modern approach to the evidence of children does not lessen the standard of proof in criminal cases, nevertheless deficiencies in the evidence of children, which might be more significant in the case of adults, are not as significant. For example, the failure of E.B. to mention, in her interview with Officer Cunnington, that she had seen a pornographic movie, is not overly significant.

145I accept the submission of Crown counsel as to the features that compel the conclusion that E.B.’s description of the events should be accepted. To repeat, the statement was given to a person in authority, namely, a police officer; the statement was given within a reasonable time after the incidents described; the statement was given in a relaxed atmosphere, and E.B. did not appear to be in any way intimidated; E.B.’s demeanour throughout the interview was relaxed, she was not afraid, and she was forthright; E.B. was comfortable with the officer, she moved at one point to be close to him; E.B. understood the difference between the truth and a lie, and she was able to demonstrate that she did; the interview was conducted in accordance with a well-understood protocol; the interview was conducted almost entirely through the use of open-ended questions, without any prompting, and information, including details, were volunteered by E.B. in her own words without prompting; E.B. corrected the officer on occasion where appropriate; E.B. provided details where appropriate; and, albeit on peripheral matters, there was corroboration of E.B.’s statement in a number of respects: the fact that the apartment was cluttered; she confirmed the sleeping arrangements; she described the somewhat unusual locking system on the door; she described how she was looked after after school; she described how her mother and godmother used a limo; and there was corroboration of the fact that there were many opportunities for S.S. to commit the assaults.

146The absence of a motive to lie on the part of E.B., while it has some significance, is not determinative. I accept the view of the British Columbia Court of Appeal in R. v. R.W.B, in that respect. However, as stated by Doherty J.A. in R. v. Batte (2000), 1998 CanLII 7163 (ON CA), 40 O.R. (3d) 321 (C.A.), at paras. 120 and 121:

It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility. What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.

147In this case, the absence of a motive to fabricate is but one factor in the equation. When placed alongside all of the other indicia of reliability that I have reviewed, it is a factor that supports a conclusion that the Crown has proven the case beyond a reasonable doubt.

148As noted earlier, generally speaking cross-examination is an important, if not essential, feature of a criminal trial that ensures that an accused can make full answer and defence. In a case such as this, the court is asked to make a finding of guilt notwithstanding the fact that the accused has been deprived of the right to cross-examine his accuser.

149Notwithstanding the denial of cross-examination, it is clear that that is not fatal to a conviction. This is the logical and inevitable result of the law that now allows, in some circumstances, the admission of a hearsay statement. However, the lack of cross-examination is serious, and at a minimum requires the trier of fact to be particularly vigilant in assessing the credibility and reliability of the hearsay evidence, and in deciding whether the evidence is sufficient to result in a conclusion that there is proof of guilt beyond a reasonable doubt. In this case, I am satisfied that the evidence as a whole, and particularly the hearsay statement of E.B., is sufficient to convince me of S.S.’s guilt beyond a reasonable doubt.

150In this case, S.S. is charged with two offences, namely, sexual assault and sexual interference.

151In the case of sexual assault, where the complainant is the age of E.B., the Crown must establish that S.S. touched E.B. for a sexual purpose. The issue of consent is not relevant. Based on the evidence I accept, there is no doubt that the Crown has proven each essential element beyond a reasonable doubt.

152In the case of sexual interference, the Crown must prove that S.S. touched E.B. with a part of his body; that E.B. was under the age of 16 years; and that the touching was for a sexual purpose. Based on the evidence I accept, once again there can be no doubt that the Crown has proven each essential element beyond a reasonable doubt.

Disposition

153For the foregoing reasons, I found S.S. guilty on both counts. The question of which charge will be stayed pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, will be determined on the next occasion the matter is before the court.

Gray J.