R. v. J.W., 2017 ONSC 6775

CITATION: R. v. J.W., 2017 ONSC 6775

COURT FILE NO.: CF-13-1943

DATE: 2017/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.W.

COUNSEL:

Meaghan Cunningham, for the Crown

Alan Brass, for the Accused

HEARD: September 26, 27, 28, and 29, and October 3 and 4, 2017

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO s. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

RULING ON ADMISSIBILITY OF HEARSAY STATEMENTS

CORTHORN J.

Introduction

[1] In the fall of 2012 and spring of 2013, J.W. operated a home daycare. Two of the children in his care during some or all of that period were D.B. (a girl, then 3.5 years old) and A.M. (a girl, then five years old). As a result of statements made by each of D.B. and A.M. in the spring of 2013, J.W. is charged with a number of sexual offences. The offences include invitation to sexual touching (section 152 of the Criminal Code), exposure of genital organs (section 173(2)), and sexual interference (section 151).

[2] J.W. was tried and convicted of these offences in the fall of 2015. The trial was before a judge alone in the Ontario Court of Justice. J.W. appealed the conviction. In a decision released in December 2016, the Ontario Court of Appeal allowed the appeal and ordered a new trial.

[3] The appeal was allowed on two grounds. The second ground related to how the trial judge handled the issue of the girls’ respective out-of-court statements.

[4] J.W.’s second trial on the charges commenced with an application by the Crown for admission, pursuant to section 715.1 of the Code, of video-taped statements made by the girls in May 2013. I found that neither girl was able to “adopt” her previously recorded statement within the meaning of that section. The Crown’s application pursuant to section 715.1 was dismissed.

[5] The Crown therefore proceeded with this application, based on the principled exception to the hearsay rule, for the admission into evidence of three out-of-court statements made by each of D.B. and A.M. The Crown’s position is that (a) necessity is made out because neither girl was able to “adopt”, pursuant to section 715.1 of the Code, her video-recorded statement, and (b) the statements meet the requirement of threshold reliability. With respect to the latter, the Crown points primarily to substantive reliability and, to a lesser extent, procedural reliability.

[6] The Crown emphasizes that necessity and reliability are to be assessed based on the evidence as presented during the voir dire at this trial; how the case was presented in 2015 when the first trial was held is not relevant to the Crown’s present application.

[7] Defence counsel (hereinafter referred to as “Counsel”) argues that the first criterion of “necessity” is not met, specifically because of the choices in approach made by the Crown in preparation for and during the 2015 trial. Counsel submits that the alleged “necessity” is contrived—it is the result of the Crown’s decisions (a) not to have the girls testify in 2015, and (b) to instead proceed with an application based on the principled exception to the hearsay rule. Counsel argues that the events at, outcome of, and appeal ruling arising from the 2015 trial are relevant to the outcome of the Crown’s present application.

[8] In addition, Counsel submits that the out-of-court statements do not, in any event, meet the threshold reliability criterion. The factors to which Counsel points in that regard include:

• The potential for each of the girls to have imagined the events they respectively describe;
• Discrepancies between the statements made by the girls over time;
• When interviewed by the police, both girls were “led” to some extent; and
• The inability of both girls, when interviewed by the police in the spring of 2014 (approximately one year after their respective first interviews), to recall any of the events they previously described.

[9] Counsel asks the court to (a) consider the prejudicial effect arising from versus the probative value of the evidence from the out-of-court statements, (b) deny the Crown’s application, and (c) exclude the out-of-court statements on the basis of the court’s residual discretion in that regard.

The Issues

[10] The issues to be determined on this voir dire are:

1. Has the Crown met the onus of establishing necessity and reliability, such that one or more of the three out-of-court statements made by each of the girls is admissible evidence pursuant to the principled exception to the hearsay rule?
2. For any statement that satisfies both the necessity and reliability criteria, should the court exercise its residual discretion and exclude the evidence? In other words, does the prejudicial effect of the evidence outweigh its probative value?

Framework for Analysis

[11] Each of the six statements that the Crown requests be admitted (in whole or in part) as evidence is subject to the following analysis:

• An out-of-court statement may be admitted if it meets the twin criteria of necessity and reliability (R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2);
• Necessity and reliability are established on a balance of probabilities (Khelawon, at para. 47 and R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at para. 45);
• At the voir dire stage, the reliability criterion means threshold reliability, not ultimate reliability. Threshold reliability may be established in one or both of two ways:
  • Substantive reliability, meaning inherent reliability based on the circumstances in which the statement was made; and
  • Procedural reliability, meaning the presence of adequate substitutes (to contemporaneous cross-examination) to test reliability, such as a promise to tell the truth, or the opportunity for cross-examination (Khelawon, at para. 49);
• Substantive reliability requires consideration of:
  • The circumstances in which the statement was made; and
  • Whether there is any evidence that corroborates or conflicts with the statement made (R. v. Bradshaw, 2017 SCC 35, 411 D.L.R. (4th) 491, at para. 30);
• To determine whether corroborative evidence is of assistance in assessing the substantive reliability of out-of-court statements, the trial judge should adopt the following process summarized at paragraph 57 of Bradshaw:
  1. Identify the material aspects of the hearsay statement that are tendered for their truth.
  2. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case.
  3. Based on the circumstances and these dangers, consider alternative, even speculative explanations for the statement.
  4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.
• Even if the criteria of necessity and reliability are established, the trial judge has the discretion to exclude the out-of-court statements where the potential prejudicial effect of admitting the statements as evidence outweighs their probative value (Khelawon, at para. 49); and
• To establish prejudice, the accused must demonstrate something more than that the admission of the statement would operate unfortunately to the detriment of the accused. Prejudice arises when the admission of the statement would operate unfairly to the accused (R. v. B.(L.) (1997), 1997 CanLII 3187 (ON CA), 35 O.R. (3d) 35, 9 C.R. (5th) 38 (Ont. C.A.), at para. 22).

[12] For both girls, their respective initial statement, describing at least some of the alleged events giving rise to the charges, was given to their respective mothers. For D.B., she next made a statement to both her parents. She was then interviewed by the police. For A.M., she was first interviewed by the police; she made no statement with respect to the alleged events upon which the charges are based. A day or so following the police interview, A.M. disclosed the alleged events to her mother, following which she was again interviewed by the police. During this second interview, A.M. disclosed the alleged events to the police. All interviews of the girls by the police were recorded.

[13] The arguments made by each of the Crown and Counsel with respect to the necessity criterion are the same for all of the statements. I, therefore, deal collectively with the necessity criterion for the statements of D.B. and A.M. I then deal with the criterion of threshold reliability of the statements from each of the girls. Lastly, I address the residual discretion of the court to exclude one or more of the statements.

Issue No. 1 – Necessity and Reliability

a) Necessity

[14] Both girls were called as witnesses on the voir dire pursuant to section 715.1 of the Code. The girls gave evidence from a closed-circuit camera anteroom. D.B. had turned eight years old a matter of days before she testified. A.M. was nine years old when she testified. The girls each answered questions posed of them. This is not an instance of refusal to testify; it is an instance of lack of recall—some 4.5 years subsequent to when the events are alleged to have occurred.

[15] I found that neither girl was able to “adopt” the statements made in the recordings of their respective police interviews. Not only were the girls unable to “adopt” their respective out-of-court statements, neither of them has any present recollection of the events described (a) in their respective recorded interviews by the police, and (b) by their respective parents. The parents testified on the voir dire as to statements made to them by their respective daughters.

[16] The Crown submits that when a child is unable to “adopt” a statement within the meaning of section 715.1 of the Code, necessity is made out. In support of that proposition, the Crown relies on the decision of the Supreme Court of Canada in R. v. F.(W.J.), 1999 CanLII 667 (SCC), [1999] 3 S.C.R. 569, 27 C.R. (5th) 169. I find that the proposition put forward by the Crown is an oversimplification of the decision in R. v. F.(W.J.).

[17] In R. v. F.(W.J.), McLachlin J. reviewed developments in the increasing sensitivity of the justice system to the special problems that children sometimes face when testifying at trial. The developments in that regard reflect the need to get children’s evidence before the court if justice is to be done (para. 42). The review was carried out in the context of considering (a) when necessity is established, and (b) whether there exists an absolute rule that evidence must be called on the issue of necessity.

[18] Three passages from the decision of McLachlin J. are instructional:

Necessity therefore should not be approached on the basis that the case must fit into a preordained category. It is a matter of whether, on the facts before the trial judge, direct evidence is not forthcoming with reasonable effort. The reasons for the necessity may be diverse – ranging from total testimonial incompetence to traumatic consequences to the witness of testifying.

There is no absolute rule that evidence must be called on the issue of necessity. Where it is apparent from the circumstances before the trial judge that the child cannot give useful evidence, the judge may find out-of-court statements are “necessary” in the context of the rule, absent evidence.

We may thus conclude that where it is self-evident that a child’s evidence will not be effectively available, the judge may find necessity and, subject to reliability, admit the child’s out-of-court statements (paras. 36, 37 and 39).

[19] I find that it is self-evident that without the admission of one or more of the out-of-court statements from each of D.B. and A.M., their respective evidence will not be effectively available.

[20] Counsel requests that I consider why the girls are unable to give their evidence in a meaningful way. In particular, Counsel submits that I am required to (a) consider what transpired in 2014, during the preparation for the first trial, (b) the strategy or approach taken by the Crown at trial in 2015, and (c) the impact that the steps taken in those years have had on the ability of the girls to give evidence in a meaningful way. When the girls were interviewed by the police in 2014, they were shown their respective 2013 interviews and did not recall the events they described in their earlier interviews.

[21] It is clear from the decision of McLachlin J. in R. v. F.(W.J.) that the court is not required to look beyond or behind “the facts before the trial judge” or the “circumstances before the trial judge” (paras. 36 and 37, respectively). The court is to assess the issue of necessity on the basis of the girls as witnesses in the present proceeding. The reasons why the girls are testifying some 4.5 years after, and when they no longer have any recollection of, the alleged events are not relevant to the determination of the necessity criterion.

[22] Any unfairness to J.W. that occurred as a result of the handling of the evidentiary issues at the first trial was addressed by the decision of the Court of Appeal in 2016. Fairness to J.W. during this second trial shall be addressed on the basis of the facts and circumstances before the court at this time.

[23] I am satisfied that the evidence of each of D.B. and A.M. is unavailable despite reasonable efforts to secure it (R. v. F.(W.J.), at para. 45). I find that the necessity criterion is met with respect to the three statements of each of the girls, respectively.

[24] The admissibility of the statements turns on whether the Crown has, on a balance of probabilities, established threshold reliability of the statements.

b) Reliability

i) Statements of D.B.

[25] The evidence as to the statements made by D.B. is from D.B., her mother (Mrs. B.), her father (Mr. B.), Ms. W. (a predecessor daycare provider to J.W.), and the investigating police officer Detective King. The statements made by D.B. are as follows:

• May 15, 2013 To Mrs. B., in the car on the way home from daycare at J.W.’s home;
• May 15, 2013 To Mr. and Mrs. B., in their home at the dinner table and later that evening; and
• May 16, 2013 To Detective King during a recorded interview at the police station.

[26] D.B. attended daycare at J.W.’s from October 2010 until March 2012. D.B. was then at home, for approximately one year with her mother and her baby brother. D.B. returned to daycare in February 2013, at the home of Ms. W. The switch in daycare providers was made in early 2013 because Ms. W. was able to accommodate both D.B. and her brother. At the time, J.W. had only one daycare spot available. Mr. and Mrs. B. preferred to keep both children together at a single daycare provider’s home.

[27] In March 2013, Ms. W. informed Mr. and Mrs. B. that she was no longer able to provide daycare for both D.B. and her brother. Mr. and Mrs. B. were unable to locate a daycare provider who could accommodate both children. The end result was that in April 2013, D.B. returned to daycare at J.W.’s home; D.B.’s brother continued in daycare at Ms. W.’s home.

▪ May 15, 2013 – To Mrs. B.

[28] Mrs. B. testified that she picked D.B. up from J.W.’s at approximately 4:15 p.m., as was her routine. She placed D.B. in a child seat in the rear section of the car and began the trip to Ms. W.’s home to pick up D.B.’s brother. As was also routine, Mrs. B. asked D.B. about her day. The question was posed in an open-ended manner. In response, D.B. informed her mother as follows:

• D.B. stayed inside because it rained during the day;
• J.W. came to D.B.’s room during nap time;
• J.W. put his penis in D.B.’s hand and told her to rub it; and
• If D.B. stopped rubbing J.W.’s penis, he would get mad and put his penis in D.B.’s mouth.

[29] Mrs. B., although in a state of shock, did her best to maintain her composure. She asked D.B. if something like that had ever happened before. D.B.’s response was that it had happened once before, when D.B. was in a different room during nap time.

[30] I accept Mrs. B.’s evidence that the discussion with D.B. at the time was brief. I find that the discussion did not involve what might be described as leading questions. I also accept Mrs. B.’s evidence that when recounting the alleged events, D.B. did so matter-of-factly, and did not appear to be upset by what she was telling her mother.

▪ May 15, 2013 – To Mr. and Mrs. B.

[31] Mr. B. gave evidence with respect to his discussion with D.B. at the dinner table and the discussion, together with Mrs. B., with D.B. following dinner. Mrs. B. did not recall the discussion at the dinner table. She testified as to the discussion following dinner.

[32] Mrs. B.’s lack of recall of the discussion at the dinner table does not give me concern about the reliability of her memory of the statements made by D.B. in her presence. I found both Mr. and Mrs. B. to be credible witnesses. They were faced with a difficult and challenging situation given the statements made by D.B. I found them to be caring, considerate, and concerned parents who did their best for their daughter’s well-being in the circumstances.

[33] Mr. B.’s evidence was that during dinner, Mrs. B. asked D.B. to tell her father what she had told Mrs. B. earlier that day about what had happened at J.W.’s during nap time. D.B.’s response was:

• J.W. came to the room, placed his penis in D.B.’s hand, and asked D.B. to rub his penis; and
• D.B. made a reference to licking J.W.’s penis.

[34] Mr. B. testified that he did his best to remain calm, let the subject go, and continued with the family dinner.

[35] After dinner, Mr. and Mrs. B. spoke together with D.B. The conversation took place on the main level of the home, in an area that included a stair railing and bannister. Mr. and Mrs. B. asked D.B. again what had occurred during nap/quiet time at J.W.’s. Their evidence as to D.B.’s statement at that time was as follows:

• J.W. came to D.B.’s room, placed his penis in her hand and asked her to rub it (Mr. and Mrs. B.); and
• D.B. made a “kissing” motion towards the bannister. She puckered her lips and leaned forward towards the bannister to display a kissing motion (Mr. B.).

[36] Mr. B. testified that D.B.’s verbal responses at the dinner table and during the after-dinner conversation were almost identical, verbatim.

▪ May 16, 2013 – Police Interview

[37] Mr. and Mrs. B. contacted the police on the evening of May 15, 2013. Arrangements were made for D.B. to be interviewed at the police station on May 16, 2013. The interview was conducted by Detective King. It lasted approximately 15 minutes and took place during afternoon hours.

[38] In summary, the statements made by D.B. during the interview were as follows:

• During quiet time at daycare she is placed in one of two rooms at J.W.’s home. Sometimes she sleeps and sometimes she stays up. When she stays up, she plays with toys;
• Sometimes when D.B. stays up and plays with toys, J.W. comes to her room. He does so when she is being a little bit noisy;
• When J.W. comes to D.B.’s room:
  • He puts his penis in her mouth;
  • She shakes and sucks his penis. (This response is verbal, physically demonstrated, and includes the sound effect of a sucking sound.);
  • She licks his penis;
  • She moves her hands up and down on J.W.’s penis. (This response is both verbal and physically demonstrated.); and
  • J.W. is not wearing his underwear.

[39] D.B. described these events as occurring on two occasions. The first time when she was “a little kid”; the second was on May 15, 2013. With respect to the latter occasion, D.B.’s statement includes:

• When J.W. came to her room he had his penis out;
• D.B. shook and sucked J.W.’s penis, holding it with her hands in a closed position. (The responses were verbal and physically demonstrated.);
• J.W.’s penis felt “really tight”; and
• J.W. squeezed his penis really tight and hard.

▪ Analysis

[40] The hearsay dangers identified by both the Crown and Counsel, with respect to the statements made by D.B., fall into two main categories. First, is the possibility that D.B. was describing events she imagined. Second, is the possibility that D.B. (a) came by knowledge of oral sex (including fellatio) and penile stimulation from a source other than the events at the daycare, and (b) confused or made a mistake in conflating the source(s) with J.W.

[41] Both of D.B.’s parents testified on the voir dire. They were credible witnesses. They were frank in discussing their emotional responses to the statements made by D.B. They answered questions posed of them directly, without protracted (if any) hesitation, and succinctly.

[42] For the following reasons, I find that the statements made by D.B. to her parents (individually and collectively) and to Detective King meet the threshold reliability criterion:

• On a balance of probabilities, the only likely explanation for the statements made is that they are based on D.B.’s truthfulness and accuracy as to the material aspects of the statements;
• The statements do not stem from the inventive or imaginative mind of 3.5-year-old D.B. When recounting the alleged events, D.B. is matter-of-fact in tone. When telling an imagined story, D.B.’s demeanour is playful or silly;
• Indicative of D.B.’s truthfulness and the accuracy of the material aspects of the statements, is the consistency from one account to the next in the events described by D.B., including as to the location in which the alleged events occurred; and
• D.B. had been in J.W.’s care during her early time in daycare and for a couple of months in 2013 before she made her statements. There is no evidence to support a conclusion that D.B. confused J.W. with anyone else.

[43] In R. v. J.M., Justice Watt listed six factors a court may consider on the issue of threshold reliability (2010 ONCA 117, 73 C.R. (6th) 78, at para. 54). With respect to the statements made by D.B., I have considered each of the factors:

1. The timing of the statement in relation to the event reported:

D.B.’s description of the events alleged to have occurred on May 15, 2013, was provided within a matter of hours and within a day of their alleged occurrence.

D.B. described the alleged events occurring on another occasion. There is no evidence as to whether the other occasion was during D.B.’s first or second stint at J.W.’s home daycare. I find that the lack of prior disclosure of the first occurrence is explained by D.B.’s age (two or three years old). A younger D.B. would not have understood the significance of, and she potentially lacked the verbal skills to enable her to describe, the alleged events.

Mr. and Mrs. B. testified that some time prior to May 15, 2013, D.B. said something to them about J.W. having put his bum on her vagina. Neither parent could recall when that statement was made. At the time the statement was made, D.B.’s parents were not particularly concerned because (a) the event described did not make sense, (b) at the time, D.B. was learning more about and the proper names for parts of the human anatomy, and (c) they concluded that D.B. was merely confusing concepts. I find that it is also possible that D.B.’s reference to J.W. putting his bum on her vagina was her way, at a very young age, of describing the same kinds of events that she alleges occurred on May 15, 2013.

I am satisfied that Mr. and Mrs. B. have accurately recounted the statements made by D.B. to them on May 15, 2013. The statements made to Detective King on May 16, 2013, were recorded; there is no evidence to support questioning the accuracy of the recording.

2. The absence of a motive on the part of D.B. to lie:

There is no evidence of any motive on the part of D.B. to lie with respect to events that are alleged to have occurred at J.W.’s. During his submissions, Counsel acknowledged that no such motive exists.

3. The presence or absence of leading questions or other forms of prompting:

Mrs. B.’s initial question to D.B. on May 15, 2013, was an entirely open-ended question about what D.B. had done that day. D.B. initially responded that she remained inside because it had rained that day. She then spontaneously provided details of the events alleged to have occurred during quiet or nap time.

Mr. and Mrs. B. are not experts in the field of questioning children with respect to allegations of sexual offences. They are, however, caring, concerned, and considerate parents. I accept their evidence that individually and collectively, they did their best to (a) remain calm when discussing these matters with D.B., and (b) not give any indication to D.B. that they were concerned by the statements made. I am satisfied that they did not lead or prompt D.B. to either make or add to her statements over time.

In cross-examination of Detective King, Counsel spent a significant amount of time on methods used by the Ottawa Police Service when interviewing child witnesses in circumstances of this kind. Detective King was frank in acknowledging that the methods or approaches have changed over time, including from 2013 when D.B. was interviewed.

I accept Detective King’s evidence that it is not possible to conduct an interview of this kind, in particular of a 3.5-year-old, without directing the child in some way. That direction, however, does not necessarily include prompting or leading specifically with respect to the events being described.

I am satisfied that the questions posed by Detective King did not prompt or lead D.B. in her disclosure of the alleged events.

4. The nature of the event reported:

The events described by D.B., verbally, physically, and through sound effects, are outside the scope of knowledge of a 3.5-year-old. The fact that D.B. could not be expected to have knowledge of the events she described “imbues her statement[s] with [their] own peculiar stamp of reliability” (R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, 79 C.R. (3d) 1, at p. 548).

The acts described by D.B., verbally, physically, and through sound effects, are consistent with fellatio and penile masturbation. It is not expected that a child as young as 3.5 years old will match an adult in their ability to articulate or demonstrate acts of this kind (R. v. C.C.F., 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, 154 D.L.R. (4th) 13, at para. 42). To the extent that D.B.’s verbal description, physical demonstration, and sound effects may not be precise in their description of the alleged events, the lack of precision does not detract from the threshold reliability of the statements she made.

5. The likelihood of the declarant’s knowledge of the event apart from its occurrence:

I accept the evidence of Mr. and Mrs. B. that D.B. had not previously observed the two of them or Mr. B. on his own, or any media available in their home, that could have been the source of D.B.’s knowledge of the physical acts she described—manual and oral stimulation of a penis. I also accept the evidence of Ms. W. that, in the several months D.B. was in her care, D.B. did not have the opportunity to encounter or observe in any way the type of sexual acts disclosed in D.B.’s statements.

I find that D.B.’s source of knowledge is not her interaction with her brother (at bath time or otherwise). As of May 2013, D.B.’s brother was barely more than one year old.

There is no evidence that D.B. was influenced in any way by communication with other children attending the daycare (including A.M.) or with J.W.’s children who were present in the home from time-to-time.

6. Confirmation of the event reported by physical evidence:

This factor is not applicable in the circumstances.

[44] In summary, I find that threshold reliability of the statements made by D.B. is met on the basis of substantive reliability.

[45] The Crown also relies, although to a lesser extent, on procedural reliability. D.B. gave evidence at trial and was cross-examined. Cross-examination of a witness can, in some circumstances, provide procedural reliability. In the circumstances of this case, the opportunity for cross-examination of D.B. provided little, if anything, in the way of procedural reliability.

[46] Beyond the fact of an opportunity to cross-examine, D.B.’s lack of recall of the alleged events and her lack of recall of statements made (even after viewing the recording of the police interview) means that the cross-examination cannot be relied on as an opportunity to test the credibility and reliability of D.B.’s version of the alleged events. D.B.’s thought process at age eight is far more advanced than it was at age 3.5. It is not, however, so advanced that D.B. would be expected to be able to reflect and comment upon her demeanour and behaviour as recorded in the police interview.

[47] I am not concerned by D.B.’s response during cross-examination that (a) she does not recall J.W. asking her to suck on his penis, and (b) if asked by someone to suck on his penis, she would have replied “No”. I find that D.B.’s speculation as to what she would have answered if asked the question is a reflection of the knowledge and understanding of an eight-year-old. The cross-examination does not give rise to evidence that is contradictory to the statements made by D.B. in 2013.

[48] At the outset of the May 15, 2013, interview, Detective King attempted to ascertain from D.B. whether she understood the difference between the truth and a lie. D.B.’s answers to the questions make it clear that she had not, at age 3.5, grasped the concepts of the truth and a lie. Detective King’s evidence was that this is one of the areas in which the methods used to question children have evolved over time.

[49] Regardless, it was Detective King’s evidence that based on other questions posed, she was satisfied that D.B. understood the difference between things that were real and things that were not real. I have reviewed the video once again and agree with Detective King’s conclusion in that regard. D.B.’s understanding, however, is not sufficient on its own to provide procedural reliability with respect to the statement given at the time.

[50] In all of the circumstances, I find that the Crown has not established, on a balance of probabilities, that the threshold criterion is met on the basis of procedural reliability. The lack of procedural reliability does not detract from the substantial reliability as found. The finding of substantial reliability is, in and of itself, sufficient to meet the threshold reliability criterion.

▪ Summary

[51] I find that the Crown has, on a balance of probabilities, satisfied the criteria of necessity and threshold reliability with respect to the three statements made by D.B. They are admissible (a) taking into consideration the law applicable to multiple statements, and (b) subject to an analysis of probative value and prejudicial effect. The law applicable to multiple statements is addressed at the conclusion of this Ruling. The analysis of prejudicial effect versus probative value is carried out below under Issue No. 2.

ii) Statements of A.M.

[52] The evidence as to statements made by A.M. is from A.M., her mother (Ms. M.), her father (Mr. M.), and Detective King. I refer to A.M.’s mother as “Ms. M.” because she goes by a different last name than does A.M.’s father. The last names of A.M.’s parents both begin with the letter “M”.

[53] Both of A.M.’s parents testified on the voir dire. Their presentation was similar to that of D.B.’s parents. They were frank in describing their respective emotional responses to the statements made by A.M. and the circumstances they faced. They were direct about their reluctance to involve A.M. in this process from the outset. They were responsive to questions posed of them, whether the questions were in examination in chief or cross-examination. Both Mr. M. and Ms. M. were credible witnesses.

[54] The statements made by A.M. are as follows:

• May 17, 2013 To Detective King during a recorded interview at the police station;
• May 18, 2013 To Ms. M., while they were in the bathroom together at the family cottage; and
• May 19, 2013 To Detective King during a recorded interview at the police station.

[55] A.M. began to attend at J.W.’s home daycare in September 2012, when she commenced junior kindergarten. She arrived each day at J.W.’s at approximately 11:00 a.m., following attendance at half-day kindergarten. Ms. M. routinely picked A.M. up from daycare at approximately 4:30 p.m.

[56] On May 16, 2013, Mr. M. received a telephone call at work, during the day, from the Children’s Aid Society. Mr. M. was told that he needed to make arrangements for A.M. to be picked up from the daycare. Those arrangements were made and A.M. spent the rest of the day at home with her parents.

[57] On the evening of May 16, 2013, Mr. M. received a telephone call from Detective King. Mr. M. was informed that a “serious allegation” had been made against J.W. Mr. M. was given no details of the allegation. In addition, Detective King asked Mr. M. if he would bring A.M. to the police station to be interviewed.

[58] Mr. M. and Ms. M. were reluctant to involve A.M. in the matter, given that she was five years old at the time. They ultimately decided to take A.M. to the police station for the interview as requested.

[59] A.M. was first interviewed on May 17, 2013. During that interview, A.M. did not make any statements giving rise to the charges against J.W. It was on May 18, 2013, that A.M. first made statements about the alleged events. Thereafter, Mr. M. and Ms. M. contacted Detective King and arrangements were made for A.M. to return to the police station to be interviewed again on May 19, 2013.

▪ May 17, 2013 – Police Interview

[60] On this occasion, A.M. described that, during the afternoon, she alternates between a nap one day and a movie the next. She spent nap or movie time in the living room of J.W.’s home. She spent the time on one of the two couches in the living room. J.W. spent the time on the other couch. J.W. slept during nap or movie time.

[61] Detective King asked A.M., “So what else does [J.W.] do during nap time”? A.M. responded, “Nothing else”. She described J.W. as always lying down on the couch to sleep.

[62] On the evening of May 17, 2013, Mr. M. received a telephone call from Detective King. Mr. M. testified that Detective King told him that J.W. had been arrested on charges of sexual interference, invitation to touch, and sexual abuse. A.M.’s parents believed that the charges related to J.W.’s conduct towards one of the other children at the daycare.

[63] I accept the evidence of Mr. M. and Ms. M. that at no time prior to May 18, 2013, did A.M.’s parents discuss with A.M., or discuss in a location that she could overhear, the nature of the events that led to A.M.’s first interview with the police or to J.W.’s arrest.

▪ May 18, 2013 – To Ms. M.

[64] The family spent the day at the maternal grandparents’ cottage, located an hour outside Ottawa. With Mr. M. and A.M.’s younger brother in the car, ready for the return drive to Ottawa, Ms. M. took A.M. to the bathroom. When Ms. M. went to the bathroom herself, A.M. remarked to her mother, “[You] have hair on your vagina, so you must have a penis.”

[65] Ms. M. responded by explaining that A.M. was not correct and that girls/women have a vagina and boys/men have a penis. To that explanation, A.M. responded, “J.W.’s penis is longer than Daddy’s penis”. A.M. told her mother that she had seen J.W.’s penis under his shorts because J.W. does not wear underwear.

[66] Ms. M. questioned A.M. as to whether J.W. ever asked A.M. to touch his penis. A.M. responded that he did so, but she said “No, no, no, no, no” (wagging her finger at the same time). In response to questions posed by her mother, A.M. said that J.W. made the request “a lot of times” on movie days, and had been doing so for “not so long”. In response to a question posed by her mother, A.M. said that J.W. had not touched her vagina.

[67] Ms. M. testified that during this exchange, all of which occurred in the bathroom, A.M. had questions and appeared to be confused about the police.

[68] Prior to departing from the cottage, Ms. M. spoke briefly with Mr. M. about the conversation with A.M. in the cottage bathroom. The couple said nothing to A.M. that evening, but made arrangements for A.M. to return to the police station on May 19, 2013, to be interviewed again. The couple said nothing to A.M. about either J.W. or about what she would be asked by Detective King. They did not remind A.M. of her conversation with her mother on May 18, 2013. They told A.M. that Detective King had a few more questions for her.

▪ May 19, 2013 – Police Interview

[69] In summary, the statements made by A.M. during this interview with Detective King were as follows:

• A.M. had seen J.W.’s penis on movie days. She described it as “really big”;
• During movie time, J.W. takes down his pants and rubs his penis. (This response is both verbal and physically demonstrated.) He has a towel with him and uses it when he rubs his penis;
• On movie days, J.W. asks A.M. to touch his penis and she replies “No”; and
• She has never touched J.W.’s penis and J.W. has never touched her with his penis.

▪ Analysis

[70] The Crown and Counsel are in agreement that the hearsay dangers for the statements made by A.M. fall into three categories:

1. A.M. misperceived what occurred or made up the alleged events from her imagination;
2. There is an alternate source for A.M.’s knowledge of penile masturbation, and A.M. confused that source with J.W.; and
3. A.M. was influenced, directly or indirectly, by the circumstances surrounding the allegations made by D.B., when describing the alleged events to her mother and to Detective King.

[71] For the following reasons, I find that the statements made by A.M. to her mother and to Detective King meet the threshold reliability criterion:

• On a balance of probabilities, the only likely explanation for the statements made is that they are based on A.M.’s truthfulness and accuracy as to the material aspects of the statements.
• The statements are not the product of the inventive or imaginative mind of then five-year-old A.M.:
  • The context in which A.M. first made a statement (to her mother in the bathroom) was in terms of the details of human anatomy. A.M. was not engaging in story-telling;
  • At age five, A.M. understood the difference between fact and fiction (even though she did not describe the concepts in such terms); and
  • A.M. was matter-of-fact in her demeanour, with both her mother and Detective King, when describing the alleged events. She was not behaving as she did when she engaged in imaginative story-telling or play.
• The consistency from one account of the alleged events to the next is indicative of A.M.’s truthfulness and the accuracy of the material aspects of the statements:
  • The consistency in A.M.’s description of the events is also demonstrated by the fact that on more than one occasion on May 19, 2013, A.M. corrected Detective King as to whether J.W. watched the movies during movie time; and
  • I find that when A.M.’s statement to the police is considered in its entirety, A.M.’s description of the alleged events is internally consistent, including with respect to the frequency with which the events are alleged to have occurred. I find that inconsistencies highlighted by Counsel are a reflection of the vocabulary and phrasing of a five-year-old; they do not reflect any deficiency in A.M.’s description of the events.

[72] I have considered the factors identified by Watt J. in R. v. J.M. as relevant to the issue of threshold reliability:

1. The timing of the statements in relation to the event reported:

A.M.’s statements were made at a time when J.W.’s behaviour, as described, was alleged to be continuing. As I have already noted, A.M.’s innocence and naiveté at age five provide a reasonable explanation as to why she did not, at an earlier time, disclose the alleged events.

I am satisfied that Ms. M. relayed accurately to the court the material aspects of the statements made to her by A.M. The statements made to Detective King on May 19, 2013, were recorded; there is no evidence to suggest any inaccuracies in the recordings.

2. The absence of a motive on the part of A.M. to lie:

There is no evidence to support a finding that A.M. was motivated to lie about the alleged events.

3. The presence or absence of leading questions or other forms of prompting:

A.M.’s initial comments to her mother on May 18, 2013, were entirely unprompted, in particular as relates to J.W. and the events alleged to have occurred at daycare.

I accept the evidence of A.M.’s parents that they exercised discretion and did not intentionally influence A.M. in any way as to what to say to Detective King on either May 17 or 19, 2013.

A.M.’s parents are not experts in the questioning or handling of children with respect to allegations of sexual offences. They are caring, concerned, and considerate parents. It was as a result of their care and concern for their daughter that Mr. M. and Ms. M. were reluctant, if not very reluctant, to involve A.M. in the investigation from the outset.

For the same reasons discussed above with respect to Detective King’s interview of D.B., I find that when interviewing A.M., the Detective posed questions that provided direction to the interview. The questions posed were neither prompting nor leading. To the extent that the questions posed were specific, they were in follow-up to a statement already made by A.M.

I am satisfied that the questions posed of A.M. by Detective King do not detract from the threshold reliability of the statements made during the interview on May 19, 2013.

4. The nature of the event reported:

The events described by A.M., both verbally and physically, are outside the scope of knowledge of a five-year-old. A.M.’s statements are imbued with their own peculiar stamp of reliability.

5. The likelihood of the declarant’s knowledge of the event apart from its occurrence:

I accept the evidence of A.M.’s parents that at no time while in their care did A.M. have an opportunity to observe a depiction or description of male masturbation. There is no evidence that A.M. spent time alone with any adult males, other than J.W. and her father, or with any teenaged boys. There is no evidence that A.M. was confusing J.W. with anyone else.

I find that A.M. was not influenced in any way by the allegations made by D.B.; neither A.M. nor her parents were made aware of the details of the allegations. In any event, the act of masturbation described by A.M. differs from the acts described by D.B.

The evidence does not support a conclusion that A.M.’s statements on May 18 and 19, 2013, were the result of tension or concern she sensed from her parents’ behaviour. A.M.’s demeanour on both May 18 and 19, 2013, was matter-of-fact. There is no evidence that A.M. appreciated the full extent of the events she described. She knew enough to say “No, no, no, no, no” to J.W.’s request for A.M. to touch his penis. That A.M. did not report J.W.’s conduct to her parents prior to May 18 or to Detective King on May 17 is in keeping with the innocence and naiveté of a five-year-old.

6. Confirmation of the event reported by physical evidence:

This factor is not applicable in the circumstances.

[73] In summary, I find that the threshold reliability of the statements made by A.M. is met on the basis of substantial reliability.

[74] For the same reasons discussed above with respect to D.B., I find that the opportunity to cross-examine A.M. does not support a finding that the Crown has established procedural reliability.

[75] I am, however, satisfied with respect to A.M., that procedural reliability is established by Detective King’s inquiries on both May 17 and 19, 2013, into A.M.’s appreciation of the truth versus a lie and the importance of telling the truth.

▪ Summary

[76] I find that the Crown has, on a balance of probabilities, satisfied the criteria of necessity and threshold reliability with respect to the three statements made by A.M. The statements are admissible (a) taking into consideration the law with respect to multiple statements, and (b) subject to the analysis that follows immediately below of prejudicial effect versus probative value.

Issue No. 2 – Probative Value versus Prejudicial Effect

[77] I recognize that trial fairness may encompass factors beyond the twin criteria of necessity and reliability. Even though I find that the criteria of necessity and reliability are established in the circumstances of this case, I have the discretion to exclude one or more of the girls’ respective statements where the potential prejudicial effect of admitting the statements as evidence outweighs their probative value (Khelawon, at para. 49).

[78] To establish prejudice, J.W. must demonstrate something more than that the admission of the statements would operate unfortunately to his detriment; he must demonstrate that the admission of the statements would operate unfairly to him (R. v. B.(L.), at para. 22).

[79] There can be no doubt that the statements are high in their probative value. They are the only first-hand accounts of the alleged events, other than the account of J.W. should he choose to testify. If the statements are not admitted, there is no evidence in support of the charges against J.W. The truth-finding process will be facilitated, not interfered with, if the statements are admitted (R. v. C.C.F., at para. 52, quoting from R. v. T.(W.P.) (1993), 1993 CanLII 3427 (ON CA), 14 O.R. (3d) 225, 83 C.C.C. (3d) 5 (Ont. C.A.), at pp. 32-33).

[80] The concept of safeguarding the interests of the accused is not abandoned with the admission of out-of-court statements that meet the criteria of necessity and reliability. The assessment of threshold reliability is a preliminary assessment. If the statements are admitted, the ultimate reliability and weight to be given to each of the statements remain to be determined. There is a difference between admission of and reliance on out-of-court statements (Khelawon, at para. 3).

[81] In argument on the issue of prejudicial effect versus probative value, Counsel repeated many of the points made with respect to necessity and reliability. I shall not address those points again in this section of my ruling. Those points are addressed, as required, with respect to the twin criteria of necessity and reliability. In summary, I have already found that the statements are not subject to the frailties highlighted by Counsel.

[82] Counsel also repeats the submissions with respect to the decisions made by the Crown in 2014 in preparation for and when tendering evidence at the 2015 trial in the Ontario Court of Justice. I find that the historical proceedings are not relevant to the issue of prejudicial effect versus probative value. Like the issues of necessity and reliability, that issue is to be determined on the basis of the facts and circumstances now before the court.

[83] Lastly, Counsel asks the court to infer that if the statements are admitted, the Crown intends to make a similar fact evidence application with respect to the statements of the two girls—thus “enhancing” the Crown’s case against J.W. Whether or not the Crown intends to make such an application is not relevant to a determination, at this time, as to the potential prejudicial effect versus the probative value of the statements. The Crown has already filed materials on a similar fact evidence application, which has not yet been heard. Assuming the Crown proceeds with that application, the issues relevant to the similar fact evidence application will be considered at the time.

[84] I find that the admission of the statements of the girls presents minimal, if any, dangers and that the exclusion of the statements would impede accurate fact-finding (Khelawon, at para. 2). The prejudicial effect of the admission of the statements is outweighed by their probative value. I do not exercise my residual discretion to exclude the statements.

Summary

[85] Each of the statements is admitted pursuant to the principled exception to the hearsay rule, and subject to the use that may be made of multiple statements:

1. By D.B.:

• May 15, 2013 To Mrs. B., in the car on the way home from daycare at J.W.’s home;
• May 15, 2013 To Mr. and Mrs. B., in their home at the dinner table and later that evening; and
• May 16, 2013 To Detective King during a recorded interview at the police station; and

2. By A.M.:

• May 17, 2013 To Detective King during a recorded interview at the police station;
• May 18, 2013 To Ms. M., while they were in the bathroom together at the family cottage; and
• May 19, 2013 To Detective King during a recorded interview at the police station.

Multiple Statements

[86] For each in the series of statements made by D.B. and A.M., consideration must be given to the extent to which there exists overlap, if any, from one statement to the next. Subsequent out-of-court statements are admissible only to the extent that they add something to the previous statement (R. v. Rockey, 1995 CanLII 3503 (ON CA), [1995] O.J. No. 1677, 23 O.R. (3d) 641 (C.A.), at para. 22).

[87] To the extent that there is overlap from one statement to the next, the overlapping portion of the subsequent statement or statements is not admitted for the truth of its contents. The overlapping portion is, however, admissible as circumstantial narrative and relevant to the assessment of the reliability of the witness’ evidence (R. v. L.O., 2015 ONCA 394, [2015] O.J. No. 2956, 324 C.C.C. (3d) 562, at paras. 32-35).

[88] The findings made in this Ruling are that the statements made by the girls meet the twin criteria of necessity and threshold reliability.

[89] In their submissions on this application, the Crown and Counsel did not address the specifics of each statement made by the girls, the potential overlap from one statement to the next, or the purpose for which each portion of the various statements is to be admitted—for the truth of the contents or as part of the circumstantial narrative. Submissions in that regard remain to be made.

Madam Justice Sylvia Corthorn

Released: November 14, 2017

CITATION: R. v. J.W., 2017 ONSC 6775

COURT FILE NO.: CR-13-1943

DATE: 2017/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

J.W.

RULING ON ADMISSIBILITY

OF HEARSAY STATEMENTS

Madam Justice Sylvia Corthorn

Released: November 14, 2017