COURT FILE NO.: FC-16-1642
DATE: 2018/03/06
ONTARIO
SUPERIOR COURT OF JUSTICE
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
C.L. (Mother)
Respondent
-and-
M.M. (Father)
Respondent
Tara MacDougall and Juliet Kim, for the Applicant
Annemarie Roodal, for the Respondent (Mother)
Cedric Nahum and John Nadler, for the Respondent (Father)
Pamela Barron, for the Office of the Children’s Lawyer
HEARD: March 5, 2018
MID TRIAL RULING
MOTION TO QUASH SUMMONS/USE OF POLICE VIDEO
J. Mackinnon J.
[1] This is a trial of a Child Protection Application wherein the Society seeks a finding that the child, S., born August 20, 2005, is in need of protection. In its opening statement on February 20, the Society stated it was withdrawing sexual harm as a basis for that finding, and that, accordingly it was no longer tendering a video of the police interview of the child. Mr. Nahum did not know of these changes in the Society’s position until this time.
[2] Other out of court statements made by the child were introduced for their truth subsequent to voir dires. The father introduced the police video on the threshold necessity voir dire so that the court could observe the child as part of its consideration of her ability to testify. I admitted it for that purpose. As I stated in my ruling on the issue of threshold necessity, CAS v. C.L., 2018 ONSC 1241 at paras 3 and 4.
3 In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, Charron J. notes that the requirements of necessity and reliability are related. She states at para 49:
“The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criteria of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.”
4 Accordingly, while somewhat unusual to consider the threshold issues individually, all parties agreed that threshold reliability should be addressed subsequently.
[3] Given some of the father’s counsel’s submissions on that voir dire to the effect that the child could testify especially with the safe guards of a child friendly court, I inquired whether he intended to call the child as a trial witness. He did not.
[4] This was consistent with the position taken by all counsel after the conclusion of the settlement conference. At that time, the Justice endorsed the record that no party was proposing to call the child. This same position is reflected in the trial management conference endorsement, and by the absence of the child’s name on any witness list, up to and including the father’s opening statement, made on March 1, 2018.
[5] The voir dire into threshold reliability was conducted on a running basis as each recipient of a statement testified. Mr. Nahum did not ask the court to consider the police video as part of the evidence on this voir dire, until he was making his submissions. Opposing counsel were surprised by the reference to the video in relation to threshold reliability, as was I. In that counsel had agreed to the divided voir dire and that I had only admitted the video on the issue of threshold necessity, I declined to hear Mr. Nahum’s submissions on the potential impact of the video on the issue of threshold reliability.
[6] In the meantime, and while the evidentiary portion of the voir dire on threshold reliability was still ongoing, during his cross-examination of the mother, Mr. Nahum referred to a statement the child had made in the police interview. I pointed out that statement was not in the trial evidence and questioned on what basis he was asking the mother to comment upon it. Mr. Nahum stated that if the court ruled any of the child’s statements admissible, his intention was to tender the video as a prior inconsistent statement of the child as part of the father’s case on the issue of ultimate reliability, but not for the truth.
[7] He did not say then, nor on February 23 when asked if he was calling any evidence on the threshold reliability voir dire, that he was intending to rely on the video of the police interview. Rather Mr. Nahum said on February 23 that he did not think he would be calling evidence on that voir dire.
[8] The ruling on threshold reliability was released during the day on Friday, March 2, 2018. Many, but not all of the out of court statements made by the child were admitted into the trial evidence for their truth. At the end of the sitting day, Mr. Nahum served the child’s counsel with a summons for the child to testify at trial.
[9] The OCL argued an oral motion on Monday, March 5, 2018 to quash the summons. Mr. Nahum opposed the motion and also sought to tender the entire video of the police interview as part of his client’s case, on the issue of “ultimate reliability.”
Motion to Quash
[10] It is well established law that a trial judge has the discretion to quash a summons to a child. See for example Children’s Aid Society of Ottawa v. E.S.M., [2011] O.J. No. 1803 (S.C.J.); Children’s Aid Society of the Regional Municipality of Waterloo v. L.B., 2006 CanLII 32609 (S.C.J); Catholic Children’s Aid Society of Toronto v. S.R.M., [2006] O.J. No. 1741 (OCJ) and Family and Children’s Services (Operated by The Children’s Aid Society of St. Thomas and Elgin) v. A.H., February 14, 2017, (OCJ).
[11] Where, as here, the child is twelve years of age, the onus is on the person seeking to quash. The factors to be considered by the court are identified by Justice Linhares de Sousa in E.S.M. at para 9:
9 Secondly, in exercising its discretion to compel a child to be a witness in court proceedings, the Court should consider, among other things, the following factors:
(a) The age and maturity of the child,
(b) The child's view with respect to testifying,
(c) The trauma that such an experience might or would cause the child especially if it involves testifying for or against a parent,
(d) The purpose for which the child is being called as a witness,
(e) The reliability and probative value of the child's evidence,
(f) The importance and relevance of the child's evidence, and
(g) The availability of evidence from other sources to address the issue in question.
[12] Additional factors include a consideration of the child’s best interests. In L.B., the court stated at para 27:
[27] Justice Hardman granted the motion. She found that she had jurisdiction to quash the summons. She noted that the child’s evidence would be relevant. She stated that the best interests of the child must be paramount in considering whether, as an alternative to having the child testify, the court should accept what she said to others as evidence of its truth in accordance with the principles of necessity and reliability, as set out in Khan.
The fundamental consideration was that the child was being asked to give evidence against her mother. The child would realize this and be greatly distressed by it. The essence of her ruling is that it is in the best interests of the child to not be required to testify. This outweighed anything that might be gained by having her testify.
[13] The court in A.H. also paid careful attention to the best interests of the child.
[14] In L.B. the court underlined the importance of the position taken by the child’s lawyer. At para 27, the decision notes that the Justice who quashed the summons “accepted that the child’s position was as stated by her lawyer.”
[15] A similar point is made in S.R.M. as para 103.
103 I find that in this case
the child, has not expressed the wish to testify,
there is evidence that B.M. might well suffer "lasting damage" from testifying;
the proposed evidence could and was reliably provided to the court without B.M. testifying;
the child has counsel and counsel was opposed to having B.M. testify
[16] The motion to quash was supported by the Society and the mother. They, and the OCL, say they relied on Mr. Nahum’s statements that he was not calling the child as a witness in making decisions with respect to the case. These included consenting to him introducing the video in the necessity voir dire without producing the police officer who conducted the interview. They agreed, on his objection, to remove the hard copy of the police occurrence report relating to the interview from the exhibit book of business records. They did not call the investigator/ interviewing officer as part of their own case. Additional questions might have been posed to Mr. Risley. He is the child protection worker who was present before and after the interview, and may have had relevant observations to provide.
[17] Second, they submit that the father could have tendered the police video through the voir dire and sought to have it admitted as evidence in the trial. Mr. Nahum has been steadfast in not wanting to do that, because he does not want the statements in for their truth. It was also open to him through the recipient of these statements to introduce statements contained in the video as evidence of the child’s state of mind at that time, but he has not.
[18] Mr. Nahum submitted that the information before the court is insufficient to test the child’s reliability. He says that the court requires her as a witness to properly assess her reliability. In my view his submission suggests that a primary purpose for calling the child may be to question her on prior statements for the purpose of detracting from her reliability and/or credibility, rather than to prove facts material to the case. This is important because the child would know she is being required to testify at the insistence of her father, whose plan she opposes, and in the course of testifying may be faced with a request for leave under the Ontario Evidence Act, R.S.O. 1990, c. E.23 which provides as follows:
23 A party producing a witness shall not be allowed to impeach his or her credit by general evidence of bad character, but the party may contradict the witness by other evidence, or, if the witness in the opinion of the judge or other person presiding proves adverse, such party may, by leave of the judge or other person presiding, prove that the witness made at some other time a statement inconsistent with his or her present testimony, but before such last-mentioned proof is given the circumstances of the proposed statement sufficient to designate the particular occasion shall be mentioned to the witness and the witness shall be asked whether or not he or she did make such statement. R.S.O. 1990, c. E.23, s. 23.
[19] I say this having already ruled on the threshold issues. In the voir dire ruling at 2018 ONSC 1241, I stated at para. 24 and 25:
[24] My conclusion from all of the evidence on the voir dire is that the threshold test for necessity to admit the child’s out of court statements has been met. I am satisfied that S. is an emotionally fragile child. She has engaged in self-harm by cutting on at least three prior occasions. Two occasions were associated with the court process: following the police interview on March 6 but before March 22 when she told Ms. Amyotte she was happy with the court ruling on access and had stopped cutting; and in relation to the summary judgment motion heard on December 12, 2017. I find the proximity in time and the related subject matter of both events, namely her contact with her father and all that it entailed, to establish the connection between the self-harm and her engagement in the court related process.
[25] Further, the child’s reaction to her discussion with Mr. Risley about possibly testifying in court and his concern leading to a safety plan being put in place, support my conclusion that there is sufficient risk of adverse harm to this child if she is required to testify, sufficient to meet the threshold test of reasonable necessity.
[20] Permitting the child to testify in response to the father’s summons would be highly inconsistent with that ruling, especially given that evidence heard subsequently in the trial is confirmatory of these findings.
[21] I am unaware of a decided case where a court upheld a summons to a child in a child protection case, whether for the sole or partial purpose of enabling the summonsing party to cross question his own witness.
[22] Mr. Nahum submits that the child in fact has expressed that she had wanted to be in court. The evidence in this regard came in through Mr. Risley. It is set out on page 17 of my voir dire ruling at 2018 ONSC 1425 as evidence of the child’s state of mind:
February 15, 2018
S. asked me "when are you going to stop coming?" I explained that it should be soon, as Court was almost done. S. said "this is taking too long". I asked S. "how do you feel about Court?", and she said "I don't care, nothing is going to change, I'm going to stay here forever.” S. then said "tell the Judge to hurry up" and "can I just talk to the Judge?" I explained to S. that talking to the Judge is tricky, because it could open it up for her to have to be in court and get asked questions by everyone, and that this can be difficult for anyone under 16, so that's why all of the adults are going to speak to the Judge and explain what she has been telling us.
S. then asked again "can I talk to the Judge?" "Maybe I can just write a letter to the Judge?” I asked S. "say I'm the Judge - what would you want to say to me?” S. said "this is weird" "don't make eye contact!" "how fast do you write?" then proceeded to speak as I wrote (with no further prompting or response from me):
[23] In addition to these statements, her counsel’s position is against the child testifying. Mr. Nahum points to Mr. Risley’s reference to being “asked questions by everyone” as potentially misleading the child to think that her parents would question her, rather than counsel. Perhaps, but that still does not turn her statement into a positive wish to testify.
[24] For these reasons, an order will go quashing the summons to the child.
Use of the Police Video
[25] Mr. Nahum wants to include the entire video of the police interview of the child as part of his trial evidence, not for the truth of anything said, but as relevant to the issue of the ultimate reliability of the child’s statements that have already been admitted into evidence. He relies on R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35 at para 39:
39 The distinction between threshold and ultimate reliability, while "a source of confusion", is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). When threshold reliability is based on the inherent trustworthiness of the statement, the trial judge and the trier of fact may both assess the trustworthiness of the hearsay statement. However, they do so for different purposes (Khelawon, at paras. 3 and 50). In assessing ultimate reliability, the trier of fact determines whether, and to what degree, the statement should be believed, and thus relied on to decide issues in the case (Khelawon, at para. 50; D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 35-36). This determination is made "in the context of the entirety of the evidence" including evidence that corroborates the accused's guilt or the declarant's overall credibility (Khelawon, at para. 3).
[26] The distinction between threshold reliability and ultimate reliability, and the different roles performed by a judge who is also the trier of fact, at each stage, is well known. That said, the issue in Bradshaw is stated at para 3, as “when can a trial judge rely on corroborative evidence to conclude that the threshold reliability of a hearsay statement is established?” That issue does not arise here.
[27] Mr. Nahum also submitted that having allowed the video to be entered in the necessity voir dire, I had to allow it into the trial evidence. There is no merit in that submission. The video went in on consent for a very specific purpose which arose in the voir dire, but not in the trial.
[28] Mr. Nahum’s final submission was that he is entitled to use the video as proof of prior inconsistent statements. He maintains that the entire video constitutes a statement and that it should be viewed as a whole and not edited in any way.
[29] I disagree. As I have I indicated during the trial, I am inclined to allow the father to tender prior inconsistent statements made by the child during that interview. But any such statements must not run afoul of an exclusionary rule of evidence. I refer to the rule against evidence of collateral facts used to impeach the credibility of a witness. The video of the police interview of the child extends for over two hours. Many topics unrelated to an issue in the trial were discussed. Many statements were made that may not be inconsistent with statements admitted into trial evidence.
[30] I intend to impose parameters consistent with trial efficiency and with the law of evidence generally applicable to the use of prior inconsistent statements, even though in this case there will not be a witness to cross examine. These general statements are taken from Alan W. Bryant, Sidney N. Lederman, Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed (Markham, Ont.: LexisNexis Canada, 2009) at page 13 section 1.40, page 1151-1152, s. 16.156, s. 16.157:
§1.40 Some rules of evidence are designed to enhance the efficiency of the trial process itself. The fundamental principle that the evidence presented to the court must be relevant to the facts in issue ensures that the court is not distracted by collateral matters. Examples of such rules are the collateral fact rule which limits the scope of the evidence that can be presented in impeaching the credibility of a witness; …
§ 16.156 The admissibility of inconsistent statements is governed, to some degree, by the traditional collateral fact rule, which limits the adducement of extrinsic evidence by way of rebuttal to an answer given by a witness in cross-examination to matters which are relevant only to the substantive issues in the case . Consequently, a previous contradictory statement, the making of which has been denied by the witness in cross-examination, will be admitted only if it relates to matters of substance and not to collateral issues.
§ 16.157 When a prior inconsistent statement is proved and after the witness has denied making it, its evidential value will depend on whether circumstantial guarantees of reliability are present and necessity is established, so as to bring the statement within the exception created by R. v. B. (K.G.) (Footnote omitted)
Thus, if the only purpose is to impeach the witness’ credibility, the proof that a witness made an inconsistent statement may have the effect of neutralizing her or his testimony. It only goes to show that the witness’ evidence is not reliable. … With respect to a statement that can only be used for impeachment and not for the truth of its contents, the judge or jury are not obliged to disregard all of the witness’ testimony because of the contradiction, but they may give whatever weight to the evidence that they feel is appropriate in light of the contradiction. (Footnotes omitted)
[31] The purpose of allowing the father to introduce prior inconsistent statements contained in the police interview is to go towards replacing the inability to cross-examine the child who will not be testifying at trial. Any prior statements so used must be inconsistent and may not be collateral to any issue in the trial. In this way trial fairness to the other parties is maintained at the same time as any potential or perceived unfairness to the father in denying his request to compel his daughter to testify is addressed.
[32] For these reasons I order :
Counsel for the father shall identify the particular statements made by the child in the police video, sought to be introduced as a prior inconsistent statement, quoting the statement and providing the time at which it begins and ends in the video;
Only statements inconsistent with a statement made by the child which has already been entered into evidence in the trial shall be included;
These particulars shall be delivered to opposing counsel by 4 pm on Wednesday, March 7th ; and
When the case resumes on March 8, counsel may address the issues of inconsistency and collateral facts. The child’s lawyer, may, as previously requested, reopen her cross-examination of the father with respect to the prior inconsistent statements only. Mr. Nahum may redirect on that cross-examination.
[33] To be clear, the order of business on March 8, 2018 shall be to hear the testimony of the father’s one remaining witness, to receive in written form the identified prior inconsistent statements of the child tendered by the father, to hear argument if necessary on the issues of inconsistency and collateral fact, to conclude the OCL cross-examination of the father, if any, and any re-direct on that cross-examination.
[34] Thereafter unless there is a case in reply, closing submissions shall commence.
J. Mackinnon J.
Released: March 6, 2018
COURT FILE NO.: FC-16-1642
DATE: 2018/03/06
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF THE CHILD AND FAMILY SERVICES ACT, R.S.O. 1990
BETWEEN:
The Children’s Aid Society of Ottawa
Applicant
– and –
C.L. (Mother)
- and -
M.M. (Father)
Respondents
Mid Trial Ruling
motion to quash summons/use of police video
J. Mackinnon J.
Released: March 6, 2018```