R. v. J.W., 2017 ONSC 7752

CITATION: R. v. J.W., 2017 ONSC 7752

COURT FILE NO.: CF-13-1943

DATE: 2017/12/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.W.

Meaghan Cunningham, for the Crown

Alan Brass, for the Accused

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

December 18, 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COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

addendum

RULING ON ADMISSability OF HEARSAY STATEMENTS

corthorn j.

Introduction

[1] In my Ruling, dated November 14, 2017, I found that a series of statements made, in May 2013, by each of D.B. and A.M. were admissible pursuant to the principled exception to the hearsay rule. I found that the statements made by the girls meet the twin criteria of necessity and threshold reliability.

[2] At the conclusion of my Ruling, I invited further submissions from the Crown and defence counsel with respect to the extent to which each additional statement made by the girls added something to their respective previous statements. I did so because 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).

[3] 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).

[4] The application was heard over six days in September and October 2017. My Ruling was released on November 14, 2017. The trial continued on December 18, 2017. On that date, defence counsel informed the Court that, in his role as counsel for J.W., he is not in a position to make submissions of the kind counsel were invited to make. He acknowledged that further submissions could be made by the Crown.

[5] On December 18, 2017, and with the consent of defence counsel, the Crown provided the Court with an outline of its position with respect to the original statements made by each of the girls and the extent to which their subsequent statements added to the original statements. The Crown advised that the outline is premised on the submissions made during the application in September and October 2017.

Multiple Statements

[6] I have reviewed the evidence of the two girls and find as follows with respect to the substance of the original and subsequent statements made.

a) D.B.

[7] The substantive evidence admitted on the basis of D.B.’s statement to her mother, while travelling home in the car at the end of daycare on May 15, 2013 is:

i) D.B. remained inside during the day because it had been raining;

ii) J.W. came to D.B.’s room during quiet time that day, put his penis in D.B.’s hand, and told D.B. to rub his penis;

iii) If D.B. stopped rubbing J.W.’s penis, J.W. would get mad and put his penis in D.B.’s mouth; and

iv) In response to a question from her mother as to whether this had happened previously, D.B. said that it had happened once before. On that occasion, D.B. was in a different bedroom and was playing with a doll when J.W. entered and put his penis in D.B.’s mouth.

[8] At or after dinner on the evening of May 15, 2013, D.B.’s parents discussed the events of the day with her. The additional substantive evidence disclosed at that time and admitted at trial is:

v) D.B. described licking J.W.’s penis and, when doing so included a physical gesture to indicate licking (disclosed to Mr. B. when discussing the events with D.B. at the dinner table); and

vi) D.B. mentioned “kissing” J.W.’s penis and, when doing so, included a physical demonstration using a bannister in the home in place of J.W.’s penis. The physical demonstration involved D.B. puckering her lips and leaning forward towards the bannister to display a kissing motion (disclosed to both Mr. and Mrs. B, during their post-dinner conversation with D.B.).

[9] The additional substantive evidence admitted at trial based on D.B.’s interview with Detective King on May 16, 2013 is:

vii) Sometimes when D.B. stays up and plays with toys during naptime, J.W. comes to her room if D.B. is being a bit noisy and puts his penis in her mouth;

viii) J.W. is not wearing anything when he comes to her room;

ix) Sometimes, D.B. licks J.W.’s penis;

x) When J.W. puts his penis in D.B.’s mouth, D.B. has to shake the penis;

xi) D.B. physically demonstrated what she does when J.W.’s penis is in her mouth by rubbing her hands up and down on something held in front of her and by making a sucking sound;

xii) Nothing came out of J.W.’s penis on these occasions;

xiii) On May 15, 2013, J.W. put his penis in D.B.’s mouth and she licked, sucked, and squeezed his penis;

xiv) D.B. physically demonstrated what happened on May 15, 2013 by pretending to hold something in front of her and squeeze the item; and

xv) When D.B. squeezed J.W.’s penis on May 15, 2013 it was “really tight”.

b) A.M.

[10] The substantive evidence admitted on the basis of A.M.’s statement to her mother when the two were together in the bathroom of A.M.’s maternal grandparents’ cottage is:

i) J.W.’s penis is “longer than Daddy’s penis”;

ii) A.M. sees J.W.’s penis way more than she sees her Daddy’s penis;

iii) A.M. had seen J.W.’s penis because J.W. does not wear underwear under his shorts;

iv) A.M. saw J.W.’s penis “a lot of times” on movie days and had been doing so for “not so long”;

v) J.W. asked A.M. to touch her penis;

vi) When asked to do so, A.M. responded “No, no, no, no, no” and in her response wagged her finger at the same time; and

vii) J.W. had never touched A.M.’s vagina.

[11] The additional substantive evidence admitted at trial based on A.M.’s interview with Detective King on May 19, 2013 is:

viii) During movie time, J.W. takes his pants down and rubs his penis. A.M. included a physical demonstration of what she saw J.W. do;

ix) J.W. has a towel with him and uses it when he rubs his penis;

x) A.M. sits on the floor when watching movies and J.W. lies on the blue couch;

xi) A.M. has never touched J.W.’s penis and he never touched A.M. with his penis; and

xii) As to the layout of the home in which the daycare was located and the routine at daycare. Note: I have not set out the particulars here, as they are available on the video recording of the interview, which has been entered as evidence at trial.

Summary

[12] This addendum is to be read together with my Ruling dated November 14, 2017 (2017 ONSC 6775) on the application for the admission of evidence pursuant to the principled exception to the hearsay rule. It is also to be read together with my Ruling dated December 29, 2017 (2017 ONSC 7740) with respect to the application for the admission of count-to-count similar fact evidence.

Madam Justice Sylvia Corthorn

Released: December 29, 2017

CITATION: R. v. J.W., 2017 ONSC 7752

COURT FILE NO.: CR-13-1943

DATE: 2017/12/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

J.W.

addendum

RULING ON ADMISSability

OF HEARSAY STATEMENTS

Madam Justice Sylvia Corthorn

Released: December 29, 2017