COURT FILE NO.: 284/19
DATE: 20220114
SUPERIOR COURT OF JUSTICE
ONTARIO
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 87(8) and 87(9) OF THE CHILD, YOUTH AND FAMILY SERVICES ACT, 2017
IN THE MATTER OF THE CHILD, YOUTH and FAMILY SERVICES ACT, S.O. 2017
and in the matter of
RE: Valoris for Children & Adults of Prescott-Russell, Applicant
AND:
J.W., C.R., and Muskeg Lake Cree Nation, Respondents
BEFORE: Madam Justice Hélène C. Desormeau
COUNSEL: Emily Gallagher, Counsel for the Applicant
Kimberley A. Pegg, Counsel for the Defendant J.W.
Cedric Nahum, Counsel for the Defendant
Kerri Crowe, representative for Muskeg Lake Cree Nation
Robert Julien, OCL
HEARD: January 6, 2022
AMENDED reasons for decision - ADMISSIBiLITY of children’s hearsay statements
Justice Hélène C. Desormeau
Background
[1] Valoris for Children & Adults of Prescott-Russell (“the Society”) seeks to rely on various utterances made by the children, A and N, to various individuals. For several reasons, the voir dire on these issues proceeded as a blended voir dire during the Society’s case. These are my reasons on the 45 children’s hearsay statements, which out of procedural fairness to the Respondent parents, is prior to hearing their evidence such that they know what evidence they need to address during the course of their presentation of evidence.
[2] In considering the applicable principles to hearsay, I have considered the relevant jurisprudence, including but not limited to R v. Khan, 1990 77 (SCC), [1990] 2 SCR 531,R v Khelawon, 2006 SCC 57; R. v. Baldree, 2013 SCC 35, R v. Starr, 2000 SCC 40; R. v. Bradshaw, 2017 SCC 35, CAS v. P., 2020 ONSC 4365, as well as all the cases cited in the parties’ factums.
[3] Section 7 of the Canadian Charter of Rights and Freedoms entitle the Respondent parents to a fair trial and to have the trial decided based on only admissible evidence.
[4] The Principles of Fundamental Justice provide that the admission of unreliable evidence is inconsistent with a fair trial.
[5] As set out in Baldree, hearsay evidence is presumptively inadmissible unless it falls under a traditional exception to the hearsay rule. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if, pursuant to the principled analysis, sufficient indicia of reliability and necessity are established on a voir dire. Hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion. The need for a functional approach to implied assertions is readily apparent, bearing in mind the core hearsay dangers of the declarant’s perception, memory, narration and sincerity.
[6] Hearsay is an out-of-court statement tendered for the truth of its contents. Generally, hearsay is not taken under oath; the trier of fact is deprived of the opportunity to observe the declarant’s demeanour at the time the statement is made; and hearsay cannot be tested through cross-examination: R. v. Bradshaw, at para. 20. The hearsay statement may be inaccurately recorded. The trier of fact cannot easily investigate the declarant’s perception, memory, narration or sincerity: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 32: R. v. M.G.T., 2017 ONCA 736 at para. 114.
[7] If the statement is being introduced for a purpose other than for the truth of its contents (i.e. narrative or state of mind), it is admissible, if it is found to be relevant by the trial Judge.
State of mind exception to hearsay
[8] There are several exceptions to Hearsay, including but not limited to admissions, warnings, threats, misrepresentations, res gestae (excited utterance), narrative and state of mind. The exceptions must be analyzed on a case-by-case basis in accordance with the principles of necessity and reliability.
[9] The state of mind exception, often referred to as “present intentions”, is a categorical exception to the hearsay rule and allows statements about a person’s emotion, intent, motive or plan, where relevant. The onus is on the party seeking the admission of the statement to demonstrate they fall into this category. The statements are limited to a contemporaneous state of mind, not statements of past events. The test is being contemporaneous, not spontaneous, although it can be both. The statement needs to have been made in a natural manner, and not in circumstances of suspicion: See R. v. Starr, 2000 SCC 40.
[10] Statements that fall into this category are presumptively admissible, however in some cases these statements can still be excluded if they are not supported by indicial of necessity and reliability: R. v. Khelawon.
[11] In Children’s Aid Society of Algoma v. H.M., the Court stated if the out of court statement of a child is admitted to show the state of mind of the child, its admission into evidence need not be justified on the principled approach to admission of hearsay, which requires to that the person seeking admittance show both necessity and threshold reliability of the statement in question. However, the Court warned that it is important that this evidence not be used as a back door to admit evidence of past acts through the medium of a child’s alleged current feelings: Children’s Aid Society of Algoma v. H.M., 2019 ONCJ 813, at para. 7, citing with approval Ward v. Swan, 2009 22551 (ON SC), [2009] O.J. No. 1834.
[12] As set out in The Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852 at para 39, “[d]eclarations of the declarant's contemporaneous state of mind, emotion, or intention are considered in some circumstances to constitute a common law exception to the hearsay rule. In these circumstances, the declarant has little opportunity to reflect upon and concoct a false account of their state of mind. Therefore, there exists a circumstantial guarantee of the trustworthiness of the statement.”
[13] In the state of mind or present intentions exception, the “first question to be asked is whether the intended use of the evidence requires that the trial accept as true the declaration of mental state.”: The Law of Evidence, Eight edition, Paciocco, Paciocco, Steusser, at p. 226; Graham C Lilly, An Introduction to the Law of Evidence, 2d ed (St Paul, MN: West, 1987) at 249.
[14] Justice Sherr in Children’s Aid Society of Toronto v. G.S. 2018 ONCJ 124, at para 19 stated that the state of mind hearsay exception includes a child’s wishes and preferences, and statements made by the child about his or her physical, mental and emotional state. The statements must assert a contemporaneous physical, mental or emotional state. They cannot include the reason for the child’s statement and should not be made under circumstances of suspicion.
[15] As stated by the Court in R v. Smeltzer, 2021 ONSC 4927, “[t]he declarant’s state of mind may be inferred from a statement. For instance, in [R. v.] Griffin [2009 SCC 28], the Supreme Court accepted that the statement “[i]f anything happens to me it’s your cousin’s family” permitted the inference that the declarant feared the accused. The statement was admissible for proof of the fact that the declarant feared the accused under the state of mind exception to the hearsay rule.
The principled exception to the hearsay rule
[16] The Supreme Court of Canada articulated what is known as the principled exception to the rule against hearsay in the well-known case of R. v. Khan, 1990 77 (SCC), 1990 CarswellOnt 108. The first question to be determined is whether the reception of the hearsay statement is reasonably necessary. At paragraph 31 in Khan, the Supreme Court said that,
"The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which would establish requirement of necessity."
[17] The onus is on the party seeking to rely on the hearsay evidence to demonstrate, on a balance of probabilities, that the requirements of either a categorical exception or the principled exception of the hearsay rule are met: G (J.D.) v. G (S.L.), 2017 MBCA 117, at para 44.
Necessity
[18] The Society must demonstrate that it is reasonably necessary to have hearsay statements instead of firsthand evidence: Children’s Aid Society of Algoma v. L.G., 2019 ONCJ 978 at para. 10.
[19] The test for necessity is not whether the hearsay statement is the best form of the evidence (for that will always be live testimony), but whether it is the "best available form" in the circumstances: See R. v. Couture, 2007 SCC 28.
[20] In the Law of Evidence in Canada, Third edition, Bryant, Lederman, Fuerst, the authors' state at paragraph 6.96:
"Necessity relates to relevance and availability of evidence. There are various degrees of necessity, ranging from the fact that the declarant is deceased, or ill, or incompetent to testify, or otherwise unavailable, to the fact that, although he or she is available to testify, little would be gained by the declarant's attendance in court."
[21] In Y.M.S. v. R.O.S. 2021 ONSC 6684, the Court indicated:
33 In family cases involving child hearsay, the necessity requirement takes into account what is reasonably necessary and considers the harm to a child of having to testify in court: Y. v. F.T., 2017 ONSC 4395, at para.134; C.A.S. v. C.L., 2018 1241 at paras 27-28; Ward v. Swan, 2009 22551 (ON SC), 2009 CarswellOnt 2435at paras 12-13; C.(S.E.) v. P.(G.), 2003 2028 (ONSC) at para 32; Maharaj v. Wilfred-Jacob, 2016 ONSC 7925 at para 58.
34 The requirement for threshold reliability asks whether the child's hearsay statement is sufficiently reliable to be admitted into evidence: Bradshaw at para 24; Khelawon at para 49; G.S. at para 12. Threshold reliability requires a consideration of all relevant factors surrounding the statement, such as the timing of the hearsay statement, the demeanour of the witness that is testifying, the child's personality, intelligence and understanding, and the absence of any reason to expect fabrication, which are non-exhaustive factors: Y. v. F.-T., 2017 ONSC 4395 at para 134; Khelawon at para 51; Khan at para 30. The court must be satisfied that the statement was accurately and objectively reported, and that the child was not manipulated, coerced or pressured into making the statement: Ward at para 15; Children's Aid Society of Metropolitan Toronto v. M.(R.), [1992] OJ No 1097(CJ) at paras 15-16. The court should also consider whether the witness that is giving evidence to provide the out-of-court statement has a vested interest in the outcome of the case: Ward at para 17.
[22] There is no presumption of necessity where the out-of-court statement is made by a child. The Crown bears the onus of establishing that it is reasonably necessary to receive the out-of-court statement to obtain a full and frank account of the child's version of the relevant events: R. v. Rockey [1996 151 (SCC), [1996] 3 S.C.R. 829] para. 17, per McLachlin J., concurring; Khan v. College of Physicians & Surgeons (Ontario)(1992), 1992 2784 (ON CA), 76 C.C.C. (3d) 10 (Ont. C.A.), at 24. Where the necessity claim rests on the contention that the child could be traumatized if required to testify, the Crown does not have to demonstrate that psychological trauma is certain or would be serious. The Crown does, however, have to show a real possibility of psychological trauma. I take trauma to refer to something more than discomfort or even distress: Rockey at para. 28, per McLachlin J. concurring: See R v. Robinson, 2004 CarswellOnt 3965. I am of the view this is equally applicable to child protection proceedings.
[23] The Supreme Court of Canada stated in R v. F.(W.J.), 1999 667 (SCC), [1999] 3 SCR 569 (SCC) at para 41 stated:
It is therefore [an] error to assert that in all cases there must be extrinsic evidence to support the assertion that the out-of-court evidence is necessary under the Khan rule. It is for the trial judge and not the prosecutor to determine necessity. To be sure, the trial judge must have a foundation for ruling that necessity is established. But that foundation may arise either from the facts and circumstances of the case as revealed to the trial judge, or from evidence called by the Crown. Where what occurs at trial satisfies the judge that there is no reasonable prospect of obtaining a meaningful account of the events from the child by direct evidence, the judge may well find necessity on the basis that it is self-evident. Failing this, the judge may ground a finding of necessity in evidence called by the Crown. The unavailability of direct evidence may be self-evident in the case of very young children. But it is not confined to that situation. If the circumstances reveal that the child cannot, for whatever reason, give his or her evidence in a meaningful way, then the trial judge may conclude that it is self-evident, or evident from the proceedings, that out-of-court statements are "necessary" if the court is to get the evidence and discover the truth of the matter.
[24] Courts have found reasonable necessity established without requiring expert testimony on the issue of risk of trauma, fragile emotional state or other adverse consequences resulting from testifying at trial. In R. v. Ngoddy, 2015 ONCJ 783, evidence was accepted by the trial judge from support workers, the complainant's mother, as well as a physician. In CAS Ottawa v. L.L., 2001 28153 (ON SC), 2001 CarswellOnt 4169 (SCJ), the court relied upon evidence from a police officer and a foster mother in reaching the conclusion that threshold necessity had been established.
[25] In reaching a determination that the Society had satisfied the test to establish reasonably necessity such that the child’s statements made would be admissible subject to a ruling on threshold reliability, Justice J. MacKinnon in CAS v C.L., 2018 ONSC 1241 cited with approval the following from CAS of Ottawa v. L.L.:
27 I agree with Blishen J. where she stated in the Children’s Aid Society of Ottawa-Carleton v. L. (L.), 2001 28153 (ON SC), 2001 CarswellOnt 4169 (Ont. S.C.J.), at para 6:
“As stated above, necessity has been interpreted to mean “reasonably necessary”. In addition, it “must be given a flexible definition, capable of encompassing diverse situations.” See R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915 (S.C.C.). The requirement of necessity may be established if the child will suffer emotional trauma from testifying.
28 In considering the issue of emotional trauma as a ground for necessity, Madam Justice McLachlin commented as follows in R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829 (S.C.C.):
The argument for the appellant [accused] on trauma suggested that only the most severe trauma could justify a conclusion of necessity. I respectfully disagree. Mere discomfort is insufficient to establish necessity. But where there is evidence, as here, that an already traumatized child might be further traumatized by being questioned by strange men in a strange situation, that suffices. The court is not required to wait for actual harm to the child.
Analysis
[26] The paramount purpose of the Child, Youth and Family Services Act is to promote the best interests, protection and well being of children: See s.1(1) CYFSA.
[27] A Court must approach with considerable caution any attempt to transpose into a legal context as unique as child protection, jurisprudence rooted in other areas of law, and most specifically, the evidence law emanating from criminal proceedings. The Supreme Court of Canada has made it clear in a variety of contexts, including the application of Charter values to these proceedings, that the rigidity with which evidentiary issues are approached in criminal cases is not an approach suited to the adjudication of cases set within a statute mandated to protect children — that distinctions must be drawn between justice done for the purpose of protecting children and justice done for the purpose of punishing a criminal act: Children’s Aid Society of Toronto v. R.(J.), 2003 CarswellOnt 2003, ONCJ, at para 16.
[28] In this case, the Society submits that both children have been diagnosed with attachment disorders due to the trauma and neglect they have experienced. They suggest it would not be in the children’s best interest and could risk causing them further harm if compelled to testify. The Respondents do not agree with the children’s medical diagnosis. I need not resolve that issue today. They do however agree that the children have been through trauma but based on other grounds than tendered by the Society.
[29] The first question I ask is if the statements are “reasonably necessary”, keeping in mind a flexible definition of same.
[30] I echo the comments of Justice Breithaupt Smith in CAS v. C.N. and H.C., 2019 ONSC 5915:
57 It is my view that the consideration of a child's ascertainable views and wishes in determining best interests, as mandated by Section 74(3)(a) of the CYFSA, has the practical result of creating a statutory necessity for the presentation of children's evidence in child protection matters in Ontario. If the legislature had intended a child's views and wishes to be considered only at the discretion of the litigating parties in deciding what evidence to place before the Court, the language of Section 74(3)(a) would have been softer. It is not discretionary, it is mandatory [emphasis added]:
74(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) Consider the child's views and wishes, given due weight in accordance with the child's age and maturity, unless they cannot be ascertained;
58 Taken together with the generally-accepted view that active participation in litigation involving their parents (by means of viva voce testimony and being subjected to cross-examination by a parent or his or her lawyer) is contrary to the best interests of most children, it may be that the first branch of the Khan principled approach test — that the hearsay evidence is necessary — is always met in Ontario child protection matters. Perhaps modern child protection litigation in Ontario is now one of McLachlin, J's "other examples of circumstances which could establish the requirement of necessity."
[31] I am mindful that children’s views and preferences are very different than alleged statements of possible sexual abuse, as are advanced by the Society in this case.
[32] It appears to be conceded that the children have been impacted by trauma, be it due to the loss of their brother, or not seeing their parents for a number of months following them being taken to a place of safety, or alleged sexual abuse.
[33] The parents submit that there is no evidence that testifying would be traumatic to the children, particularly given the amount of questioning they have already suffered as a result of the initial disclosures. It was suggested that the children could testify in a child-friendly environment, via zoom, with a support person.
[34] The parents also argue that the Court must consider whether the probative value of a statement could be outweighed by the prejudicial effect of same. For instance, regarding the allegations of sexual abuse, it was submitted that the children’s statements do not provide sufficient information for the Court to use them in any manner.
[35] Also, the parents argue that if the Court were not to permit the children to testify, then the children would not be given a voice, and we will never know what they meant by what was stated.
[36] Here, the children are 11 and 7 years old. Thus far, the evidence supports that they have special needs, which include but are not limited to language delays and attachment disorders.
[37] I have considered the capable submissions of counsel and the relevant case law.
[38] Given the age of the children, their special needs, the trauma they have already suffered, and the evidence heard thus far, I am of the view that testifying would entail further trauma to them. I am unable to reconcile these young children testifying with the paramount purpose of the CYFSA, being the protection and the well being of children. As such, I find that it would be inappropriate for these children to provide oral evidence and to be cross examined.
[39] The children’s voices will be heard through their counsel’s submissions (based on the evidence before the Court), and the evidence from the Society and the parents.
[40] I find that it is reasonably necessary for the children’s hearsay statements to be considered, subject to the issue of threshold reliability, below.
Threshold reliability
[41] For a hearsay statement to be admitted through the principled approach, it must meet the level of threshold reliability. This required reliability can be present in the form of either procedural or substantive reliability, or a combination of the two: R. v. Bradshaw, supra, at para. 107.
[42] The trial judge acts as a gatekeeper for determining threshold reliability and leaves the ultimate determination to the fact finder. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement: R v. Khan; R v Smith 1992 79 (SCC), [1992] 2 SCR 915 (SCC); R v Starr; also see Children’s Aid Society of Ottawa-Carleton v. L. (L.), 2001 28153 (ON SC), 2001 CarswellOnt 4169 (Ont. S.C.J.).
[43] As set out in R v Baldree, the criteria of necessity and reliability work in tandem: if the reliability of the evidence is sufficiently established, the necessity requirement can be relaxed: see Khelawon, at para. 86, citing R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740 (S.C.C.), and R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764 (S.C.C.): R v. Baldree, at para. 72.
[44] In determining threshold reliability, the trial judge must guard against evidence which is unnecessary or the reliability of which is neither readily apparent from the trustworthiness of its contents or capable of being meaningfully tested by the ultimate trier of fact.
[45] The inquiry into threshold reliability is not focused on the reliability of the witness testifying to the hearsay statements. The reliability or credibility of that witness “is not relevant to the threshold reliability inquiry because the threshold reliability inquiry is meant to serve as a substitute for cross-examination of the declarant, and because the hearsay witness is fully available to be cross-examined at trial”: [R v.] Cote, [2018 ONCA 870] at para 30. In the relatively rare cases “where the credibility or reliability of the narrator of the out-of-court statement is so deficient that it robs the out-of-court statement of any potential probative value”, a trial judge may determine that this necessitates exclusion of the statement based on the exercise of her residual discretion: R v Humaid, 2006 12287 (Ont. C.A.), at para 57, leave to appeal refused, [2006] SCCA No 232. However, it would be an “exceedingly rare case” where this caveat might be applied without the opportunity to see and hear the narrator’s testimony on the admissibility voir dire: R v Berry, 2017 ONCA 17 at para 53; R v McMorris, 2020 ONCA 844 at paras 36-40: See R. v. Smeltzer, 2021 ONSC 4927, at para. 54.
[46] As noted in R. v. M.G.T., 2017 ONCA 736, at para. 118:
Substantive reliability is established if the hearsay statement is inherently trustworthy. To determine whether a statement is inherently trustworthy, we are to consider the circumstances in which it was made and any evidence that corroborates or conflicts with it. The standard for substantive reliability is high. This requires that a judge or court be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process: R v. Bradshaw, at para. 40.
[47] In other words, the statement must have been made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken: The Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852.
[48] Substantive reliability is assessed by considering all the circumstances surrounding the making of the statement, plus, where relevant, the presence of supporting or contradictory evidence. There is no closed list of factors to consider, but the factors should address the concerns related to hearsay (perception, memory, narration, sincerity) and focus in particular on the essential hearsay danger(s) of the statement (see eg. R. v. Clarke, 2013 MBQB 26 at para 32 for a list of possible factors to consider): See R v. Hashi, 2021 ONSC 5617.
[49] A proponent can overcome hearsay dangers and establish threshold reliability by showing, on a balance of probabilities, either that there are adequate substitutes for testing truth and accuracy (procedural reliability), or there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability): Bradshaw, at para. 27; Khelawon, at paras. 61-63; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30: R. v. M.G.T., 2017 ONCA 736, at para. 116.
[50] Procedural reliability refers to features of the statement and how it was made that provide adequate substitute for testing the truth and accuracy of the statement. Alternatives for the traditional safeguards can include a video recording the statement; an oath or its equivalent; a warning about the consequences of lying and/or the importance of truth telling. These elements can all contribute to overcoming the specific hearsay dangers of the statement such that the statement can be, in some contexts, sufficiently reliable for consideration by the trier of fact. These aspects must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement: R v. Bradshaw, at para. 28.
[51] Child statements made to society workers met threshold reliability in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124. In that case, the Court noted a number of factors, which included the workers being familiar and comfortable with the child, able to assess her demeanor, did not lead the child to make statements, spoke of the duty to report the notes within 24 hours; the age of the child, the understanding of the child regarding the statements made by her, the statements to different workers were very similar, etc.
[52] Justice J. Mackinnon set out the following non-exhaustive list of factors courts have considered in child protection cases when assessing threshold reliability in CAS v. C.L., 2018 ONSC 1425, at para. 7:
• whether the statement was spontaneous;
• the timing of the statement in relation to the event
• the method and timing of record taking, if any;
• absence of suggestion or manipulation;
• whether the statement is in response to a leading question;
• the demeanour of the witness who received the statement;
• whether that witness has a vested interest in the outcome of the case;
• whether the recipient was under a business duty to record the statement accurately, objectively and in a timely way;
• whether the recipient is in court, available for cross examination, i.e. first hand hearsay only; and
• the child’s age, cognitive abilities, motive to fabricate, the contents and context of the statement.
[53] Justice Sherr in Catholic Children’s Aid Society of Toronto v. C.G., 2018 ONCJ 193 at para. 25 outlined questions for which the answers may assist the court in determining if there is sufficient evidence to establish if threshold reliability for the admission of an out-of-court statement for the truth of its contents:
a) The experience of the workers.
b) The training of the workers in interviewing children.
c) The workers' practice in note-taking and whether that practice was followed in the child interviews.
d) Were the statements recorded contemporaneously?
e) Did the workers record their questions that they asked the child?
f) Did the workers ask leading questions?
g) Were the child's statements spontaneous or prompted?
h) Did the child provide detailed and coherent statements?
i) Did the child have any motivation to fabricate the statements?
j) Did the timing of any of the statements arouse suspicion about their validity?
k) Were the child's statements consistent over a period of time?
l) Is there evidence corroborating the child's statements?
m) What is the level of maturity of the child?
n) What is the intelligence and level of understanding of the child?
o) Where was the child interviewed? Was there any reason to believe that the location of the interview influenced the child's statements?
p) Were the visits private? Were any other adults nearby during the interview?
q) What is the nature of the workers' relationship with the child? Is the child open and candid with them?
[54] An assessment as to the accuracy of the recording and observations of a children’s aid worker is procedural, not substantive reliability: The Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852.
[55] Procedural reliability and substantive reliability approaches to establishing threshold reliability are not mutually exclusive and the “factors relevant to one can completement the other” by working in tandem: See Children’s Aid Society of Toronto v. C.P.I, 2020 ONCJ 304, at para 69, citing Bradshaw, at para 32, also see CAS v. C.L., 2018 ONSC 1425, at para. 10, and Children's Aid Society of Ottawa-Carleton v. L.L., 2001 28153 (ON SC), [2001] O.J. No. 4587 (S.C.J.) at para 22. However, as noted in Bradshaw, while the court can combine procedural and substantive reliability to find threshold reliability, it should be cautious in doing so: R. v. Bradshaw, 2017 SCC 35 (S.C.C.).
[56] Notwithstanding consideration of protentional factors in determining threshold reliability within a content-based review or a process-based assessment, the Court has a residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence: R. v. Humaid(2006), 2006 12287 (ON CA), 208 C.C.C. (3d) 43 (Ont. C.A.), Doherty J.A. (See R v. Clarke, 2013 MBQB 26, affirmed at 2013 MBCA 98, at para 34).
[57] The Court in R. v. Smeltzer, 2021 ONSC 4927 at para. 67, resolved that evidence may be excluded where it is repetitive or where its probative value is so minimal that it does not assist with a determination of the issues.
[58] While the Court must determine the admissibility of each statement, they need not be assessed individually in isolation of the other statements. The Court may have recourse to all of the statements when examining them for reliability: Children's Aid Society of Ottawa-Carleton v. L.L., 2001 28153 (ON SC), [2001] O.J. No. 4587 (S.C.J.) at para 26, citing with approval Catholic Children's Aid Society of Metropolitan Toronto v. B. (S.), 1998 CarswellOnt 5962 at para. 40, and the Quebec Court of Appeal in R. c. D. (J.)(1997), 1997 9935 (QC CA), 118 C.C.C. (3d) 544, [1997] Q.J. No. 2667 (Que. C.A.).
[59] To consider corroborative evidence, the court must determine whether, given the circumstances of the case, whether the cumulative effect of it rules out alternative explanations for the statement such that the only remaining likely explanation for it is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement: R. v. Bradshaw, 2017 SCC 35 (S.C.C.).
[60] Corroboration is only relevant to substantive reliability. The trial judge is not obliged to look at the piece of corroboration in isolation. The import of individual pieces of corroborating evidence may be enhanced by a consideration of the entirety of the evidence, including other pieces of corroboration evidence: See R. v. Thyagarajah, 2017 O.J. No. 5550.
Analysis
[61] The Society submits that the statements tendered for truth of their contents meet the requisite test of reliability. Alternatively, the Society asks that the statements be admitted state of mind and/or narrative.
[62] The onus is on the Society to establish threshold reliability.
[63] The allegations to which these statements relate are serious. The impact of this decision is extremely significant in both the life of the children and that of their parents. I agree with parents’ submissions that these types of proceedings may have permanent effects on the family, and are some of the most serious infringement by the state into the lives of these individuals and impact the Charter rights of those involved. As such, I agree that it is imperative that the rules of evidence and the statements be carefully reviewed, and I must consider the weight of impact resulting from my determination.
[64] I am mindful that the statements proffered lack the opportunity for contemporaneous cross-examination. This removes the ability to directly assess credibility, reliability, accuracy of the children’s memories and their understanding of events or investigate any reason to fabricate or influences which be relevant. Almost all the statements are made without the presence of an oath or promise to tell the truth.
[65] Without video evidence of the children’s statements, the ability to assess the children’s demeanor is also lost. While here, there is one video, it does not show the child at all, rendering it difficult to assess whether the situation is free from influence.
[66] Also important in this analysis is the children’s age, their history of trauma, and their diagnosed developmental delays including but not limited to speech delays.
[67] I am aware that some of the statements are made to child protection workers who have a professional obligation to make notes within a reasonable time after the fact, and who are available for cross-examination. These statements have features which enhance their reliability.
[68] Some statements were made spontaneously, such as those to Ms. I., or to Ms. Marie T.
[69] Apart from those recorded by audio and/or visual recordings, there were no verbatim notes of the events, which increases the potential for inaccuracies in the memory or understanding of those to whom statements were made.
[70] Other statements were the direct result of questioning by the protection worker or the foster mother, which, coupled with the lack of evidence or notes regarding the questions put to the children, impacts their reliability. The fact that the workers and foster parents do not keep a complete record of the questions asked, but only take brief notes of the answers, is troubling.
[71] I have considered the timing of the statements, which occurred sometime months or over a year after the children were taken to a place of safety. The children’s memories may have been impacted. There could be external influences which impact the statements.
[72] I am aware that there were allegations of sexual abuse perpetrated against the children by another individual. This can have the affect of removing the reliability that could be inferred from the children’s knowledge of certain sexual behaviours.
[73] The allegations against another individual provide alternate explanations for the statements. It may be that the Father might not be telling the truth, or professionals may be incorrectly interpreting the statements to fit their perception of the Father and/or narrative of this case.
[74] It may be that the professionals are engaging the children in discussions of this nature, and the children are interested in pleasing the adults in their lives: See Catholic Children’s Aid Society of Toronto v. C.P.I, 2020 ONCJ 304 at para 73.
Statements
[75] There are 45 statements upon which the Society wishes to rely, proffered by nine different witnesses at trial. Submissions were made based on the Evidence Chart dated December 14, 2021, which shall be marked as Exhibit D at trial for ease of reference.
The Society’s general arguments
[76] As general submissions, the Society advanced that the children’s statements have been consistent over time, but for the use of language, where the children went from using the word “peepee” to using vagina.
[77] The Society submitted that the statements were corroborated as they were recorded in police transcripts and there was an audio recording, as well as being repeated to different people. The Court is very much aware that repeating a statement to different people does not corroborate the statement, or make it more worthy of belief. However, the fact that the words would have been recorded and transcribed, such as the police statement, assists in determining if the words used are consistent or properly advanced to the Court.
[78] All the recipients were available to be cross-examined by multiple parties. They provided evidence as to the children’s demeanor when the statements were made.
[79] The Society submitted that none of the witnesses have a vested interest in the outcome of this file. The teacher was just that, the foster mother and her mother are not presenting future plans to adopt the children, the workers are doing their jobs and the professionals have no interest in the outcome.
The parent’s general arguments
[80] Applicable to their entire submissions, the parents suggest that the workers and foster mother have a vested interest in the outcome. The Father for instance suggested that the nature of the relief sought by the Society in their Notice of Motion in December 2019 demonstrated the Society’s vested interest to restrict or bar a relationship between he and the children. Specifically, the Society sought a prohibition on access to the Father until the criminal investigation was completed, and if there were no restrictions on contact, then supervised access. It was argued that it was the Society’s goal to separate the children from their Father, and they were successful in doing this.
[81] It was submitted that Ms. Sequin had a vested interest, and Ms. T. was the Society’s “cheerleader”.
[82] The parents argue that the Court must take a close look at the timing of the statement in relation to the event and take note of the method and timing of any record taking. In this case, the record taking is very important, particularly given the intense and repeated questioning by the children to get them to talk about their Father being inappropriate with them, most of which was not recorded. By the initial meetings not being recorded, the Society has removed for the Court any evidence of any suggestion or manipulation. The Court is unable to determine whether the statement was in response to a leading question.
[83] It was submitted that the very first statement, which was made by A to her teacher, contained no evidence of a sexual act. The Father argues that it was curious that no adult sat down and questioned the child as to all the circumstances surrounding that event and/or statement, as the statement is consistent with her Father cleaning her. This is supported by Exhibit 15, the Father’s statement to the police on December 5, 2019, where he admits to cleaning the child.
[84] The Father submits that despite his explanation to police, the Society wants the event which led to the utterance to be sexual touching, when it could have been due to toileting.
[85] It was submitted that Ms. Sequin and Ms. T. were told by police to stop questioning the children.
[86] Further, it was submitted that the children were ostracized from their parents. It was not until approximately six months after the children were taken to a place of safety that they were first able to see their Father. It was argued that this would have played a role in the children’s utterances.
[87] The parents also argued that with the children’s special needs, including their difficulty in processing information told to them, as well as their difficulty expressing themselves, make it difficult to rely on the information without obtaining an explanation. For instance, the evidence at trial was that the children had difficulty describing their bathroom routines, such as brushing their teeth. Without a recording of the utterances, the Court only had the interpretation of the statement. A prime example was when Ms. T. spoke of her meetings with Ms. Sequin, her evidence was she acted as an interpreter because the children spoke in such a manner that this was required. It was submitted that Ms. T. is not a qualified interpreter, and as such, it is difficult to know what was actually said, and how it was said.
[88] Ms. Sequin testified that utterances were made only in her presence, which the parents submit begs the question of her ability to understand some utterances yet required interpretation of other statements.
[89] The parents argue that the children’s motive to fabricate was based on the lack of, or minimal, communication with their parents.
[90] Further, it was submitted the questions put to the children to assess their ability to know the truth from a lie was a ridiculous – knowing the difference in colours of whether someone was wearing a hat is not a way to gauge who is telling the truth.
[91] Moreover, as submitted by the parents, there was evidence from two of the service providers, Ms. P. and Ms. K., that the foster mother, Ms. T., had voiced concerns about the children’s ability to tell the truth.
Analysis
[92] Prior to reviewing the individual statements, those advanced by the Society sought to be admitted will be evaluated by the proponent of the statement, keeping in mind that generally, the focus is not on the reliability of the witness testifying to the hearsay statements. As noted above, subject to rare cases, the witnesses reliability or credibility is not relevant to the threshold reliability inquiry because the threshold reliability inquiry is meant to serve as a substitute for cross-examination of the declarant, and because the hearsay witness is fully available to be cross-examined at trial. (See R. v. Cote, supra.)
Carolyn Sequin
[93] Statements 1-13 were offered by the primary worker on the Society’s file, Ms. Carolynn Seguin.
[94] Ms. Sequin has worked for the Society for approximately fifteen five years. She has training in how to interview children. She testified to taking notes at the time or very shortly afterward, those notes then transposed into CPIN, where they cannot be modified after 24 hours.
[95] With regard to the nature of the relationship between the children and Ms. Sequin, this was the worker since almost the beginning of the file, which commenced over two years ago, therefore it was submitted that the children both know and trust her.
Statement 1:
[96] The Society submits the statement should be admitted for truth of its contents. The statement was made to a worker. The statement was made at school, only in the presence of the worker, who was essentially a stranger to A. It was not clear if the child at that point would recognize Ms. Sequin. The conversation was not recorded as Ms. Sequin did not know how to record on her phone. She took notes of the utterances. The worker assessed and was satisfied that A knew the difference between the truth and a lie and understood the importance of telling the truth. Ms. Sequin described that A kept moving, grabbing herself, rocking, and indicating it hurt. Ms. Sequin’s evidence was she asked the child what happened, at which point the child referenced both daddy and M touched her peepee. The child was asked how the touching occurred, but not asked that day if it was possible that the Father was touching her to put ointment on her.
[97] The parents argue the statement is not reliable nor necessary. The worker had a vested interest. The statement was not recorded despite the worker having a telephone to record. The parents question the veracity of the worker’s ability to operate her cellular phone.
[98] I am of the view that the utterance is admissible under the principled exception. The child provided the worker with a detailed and coherent statement, there was no motive to fabricate, the questions asked appeared to be open ended, the location of the interview would not have influenced the child’s statements. The meeting was private, the child understood the importance of telling the truth. The words used were at the child’s level. The worker took contemporaneous notes of the event. I am not of the view that the worker had a vested income.
Statement 2:
[99] The Society wishes to rely on N’s statements for state of mind of her being scared, or not wanting to see her Father in June 2020. The Society submits that the statement was made to the worker, who has no vested interest. The worker took notes. The statement was spontaneous in response to a request for her to go see her Father for an access visit. There was no motive for fabrication. The statement was consistent with the child refusing to attend visits to this day.
[100] Over and above the general submissions noted above, the Father submitted that for this utterance to be admissible, the Court would need to be satisfied that it was not elicited by anything the worker had to say, which was not possible.
[101] I am of the view that the utterance warrants admission under the traditional exception of state of mind, that N was scared on June 24, 2020. TI am satisfied based on the grounds enumerated by the Society, as well as the evidence elicited in the voir dire, which included evidence of the child crying, and that she initially started the visit then wanted the visit to end.
Statement 3:
[102] The Society submits that N not wanting gifts from her parents or talk to her parents on December 24, 2020 should go in for state of mind. The notes were taken by the worker, there was no motive to fabricate, that the statement was corroborated by the gifts still being unwrapped in the foster home, and that N did not want to speak to her parents over a period of time.
[103] The parents rely on their general submissions, above.
[104] I am of the view that the utterance warrants admission under the traditional exception of state of mind, that on December 24, 2020, N did not want the gifts or talk to her parents. The evidence on the voir dire supports the admission of the evidence.
Statement 4:
[105] The Society submits that the child being worried about the Father attending for the visit or being late should be admitted for state of mind. The notes were taken by the worker, who had no interest in the outcome. The statement was spontaneous.
[106] The parents rely on their general submissions, above.
[107] I am of the view that the utterance warrants admission under the traditional exception of state of mind, that on July 15, 2021, A was worried.
Statement 5:
[108] The Society submits that the child’s statement should be admitted as truth. The statement was made to the worker while passing the police station. It was made to a trained worker, there was no motive to fabricate, the notes were taken shortly thereafter. It was suggested the statement was corroborated by the child making the statement again later. This is not evidence of corroboration.
[109] The Father points out that the Society wishes to rely on the child’s statements as truth, when this is an admission that the child lied. The Society cannot pick and chose. The suggestion was that this statement represents that the child is lying to cover up for the Father and is not admissible at all.
[110] The Mother argues that A’s statement that she lied to police, in this context, with this information, the Court would be unable to apply the statement to any particular fact. It is unclear which portion of the interview with police the child would be reference.
[111] I agree with the parents that this statement is not admissible for the reasons outlined by them.
Statement 6:
[112] The Society wishes to rely on statements made by A regarding speaking or seeing her Father on March 18, 2021, for truth and/or state of mind. The Society submits that the child’s statements were made to the worker, who took notes, with whom she has a trusting relationship. There was no motive to lie or fabricate. It was submitted that the child wanted the Father to come in person but shows the impact of his inconsistency of visits by refusing visits for a little while.
[113] The parents rely on their general submissions, above.
[114] I am of the view that the child’s state of mind is admissible, that the child is sad on March 18, 2021.
Statement 7:
[115] The Society wishes to rely on statement made by A as to state of mind based on their general submissions as well as the utterance being spontaneous.
[116] The parents rely on their general submissions, above.
[117] I am of the view that the child’s state of mind is admissible, that the child misses her father and the other male, on August 17, 2021.
Statement 8:
[118] The Society wishes to rely on statement made by A to her Father as truth and state of mind. The Society submitted that the entire part should be admitted as truth, and as for state of mind, that the child was mad. The statement was made to a trained worker, it was spontaneous, was said directly to her Father. It was corroborated by other witnesses whose evidence was he provided to come in-person for visits but did not.
[119] The parents rely on their general submissions, above. The Father added that he was not certain why this statement was necessary and how it helped for the trial evidence.
[120] I am of the view that the child’s state of mind is admissible, that the child was mad on August 5, 2021.
[121] I do not find it probative to admit the evidence in as truth.
Statement 9:
[122] Statement 9 is being advanced as narrative. In the circumstances, I am satisfied this utterance is admissible as a traditional exception.
Statement 10:
[123] The Society wishes to rely on statement made by A to the worker as truth or state of mind. The statement was spontaneous, the child chose to call the worker to express her anger.
[124] The Father relies on his general submissions, above.
[125] The Mother submits that the trial has nothing to do with the child being referred to by a nickname. The statement, or state of mind, or the child not liking a nickname is not particularly relevant to the decision the Court needs to make.
[126] I agree with the Mother that this evidence is not relevant. It is not admitted at trial.
Statement 11:
[127] The Society submits that the children’ utterances should be admitted for truth and/or state of mind. The statements are evidence of the children’s views and preferences. The questions were recorded in writing, the worker took notes, the worker met individually wih the children with no other adults present.
[128] The parents rely on their general submissions, above.
[129] For reasons outlined by the Society, I am of the view that the utterance is admissible under the traditional exception, in particular with regard to the children’s views and preferences on January 10, 2020.
Statement 12:
[130] The Society wishes to rely on the statement made by A as truth, from January 25, 2021. The statement was first uttered in the car, then the worker spoke to the child at the foster home. An audio recording was made (Exhibit 14), as well as notes. While it was submitted that the child cannot be seen in order to observe her behaviour, she can nevertheless be seen. There is a transcript from the same day from when the child did not want to talk to the police officer DC Barnes. There was no other adult present when the statement was taken. This was a situation where the child trusts the worker.
[131] The Father submitted that this statement was made after the child went to the police station to make a statement, but she did not “perform as required”. It was argued that it was impossible for Ms. Sequin not to have talked about what happened at the police station when the child was in the car with her. Also, the way in which the worker spoke to A, that A is the only one who can touch her peepee, was suggestive to her. It was also not put to the child that parents, including Fathers, can touch her in order to clean her.
[132] The Mother submitted that the statement, which initially includes a concern about “mommy going to jail” when it was alleged that the Father touched her peepee, was irreconcilable with the allegation. Further, as submitted by the Father, the idea of someone going to jail for touching someone’s peepee is concerning, as it is not clear where that notion came from.
[133] The audio recording demonstrates some prompting by the worker. However, to explain some of the questions and repeating of statements, the worker provides evidence in the voir dire, that the child’s speech therapist says it is good to give A choices for her answers, and to repeat back to her what she said in order to ensure she understands.
[134] The worker asks how the touching would have occurred but does not record any actions by the child. When asked if A could tell the police that daddy touched her peepee, she agreed to do so the following week. The child consistently said daddy and mommy touched her peepee, however, the worker questioned about mommy touching her peepee in such a tone of surprise that the answer was clearly suggested to A.
[135] This statement was audio recorded, which assists in knowing what questions were asked, but does not assist in assessing the child’s demeanor, or whether there was any physical or visual prompting by the worker. The worker had a duty to record, and the child appears to trust her.
[136] The statement was made approximately 18 months after the child was taken to a place of safety.
[137] I am satisfied on a balance of probabilities that this statement meets the criteria for admissibility under this principled exception.
Statement 13:
[138] The Society seeks to rely on the statements made by N and A from February 19, 2020. The Society submits that at the outset, the worker ensured the children knew the difference between the truth and a lie, and the importance of telling the truth. The statement occurred in the presence of the foster mother, as well as the other child. It was transcribed as Exhibit A. The statement was recorded, but the recording was not available at trial, simply the transcript generated by the OPP. It was submitted that the transcript provides the exact questions asked, and describes gestures made. The foster mother was there as a support person for the children. The Society submits the evidence is procedurally reliable.
[139] The Father argues that this statement led to the police telling the worker to stop questioning the children. In prior interviews by police on December 5, 2020, A makes no disclosure of inappropriate touching, whereas N states M touched her inappropriately. The Father argues it is inappropriate that both children are questioned together by the worker and the foster mother in the room.
[140] I am satisfied on a balance of probabilities that this statement meets the criteria for admissibility under this principled exception. The statement was recorded (though the recording was not available, a transcript was available). Satisfactorily detailed notes were also taken. A was the first person interviewed, and she did not want to be away from her sister. While A was talking, N was drawing and not paying attention. N had wanted the support person to be present. The children’s statements were detailed and coherent. I am not persuaded there was motive to fabricate. The children’s statements have been sufficiently consistent over time.
K.I.
[141] Statements 14, 15, and 16 were from A’s teacher, K.I.
Statements 14, 15 and 16
[142] The Society wishes to rely on these statements for truth. The Society submits there is no reason to fabricate by the child or the teacher. This teacher has been in this profession for 20 years. Ms. I. testified to only ever calling the Society once before. Ms. I. had a clear recollection of the events surrounding the utterance, but could not recall the exact words used, but it was to the effect that daddy touched my peepee or bum, and A did not like it. The utterances were spontaneous. There was no reason for the child to fabricate. The words are strikingly similar to the utterances made to Ms. Sequin and Ms. T.
[143] When the worker attended as a result of the call by Ms. I., the child repeated that daddy touched my peepee or my bum, and she didn’t like it. She recalled the words involved touching and A not liking it. She recalled the questions asked.
[144] The third statement made by A to Ms. I. included the name Nelly, but Ms. I. could not recall all the details. This time the disclosure was made in front of the principal, Mr. P. This utterance was after A was absent from school for a while.
[145] The parents rely on their general submissions, above.
[146] I am satisfied on a balance of probabilities that the statements meet the criteria for admissibility under the principled exception. They were made spontaneously, there is no evidence of motive to fabricate, this witness is used to working with and speaking to children. The statements were generally consistent over time. There is no reason to believe that the location of the interview influenced the child’s statements.
[147] Given that they are repetitive, I will only admit statements 15 and 16 as they provide the most detail.
Mrs. Marie T.
[148] Statement 17 from the foster mother’s mother, Mrs. Marie T.
Statement 17:
[149] The Society wishes to rely on this statement for truth, otherwise state of mind. They submit the witness is credible, she has no interest in the outcome, and N had a good relationship with her, calling her nanna. The witness was able to recall in great detail the events and the utterance, which she was confident regarding the exact words. The utterance was spontaneous.
[150] The parents rely on their general submissions, above, including that there were no notes taken of the statement.
[151] I am satisfied on a balance of probabilities that this statement meets the criteria for admissibility under this principled exception. The statement was spontaneous, not a result of leading questions, there was no evidence of motive to fabricate. The statement will be admitted for the truth.
Emmanuelle Sabourin
[152] Statements 18 to 26 from the worker Ms. Emmanuelle Sabourin.
[153] Ms. Sabourin has worked for the Society for approximately five years. She has training in how to interview children. She testified to taking notes at the time or very shortly afterward, those notes then transposed into CPIN, where they cannot be modified after 24 hours.
[154] With regard to the nature of the relationship between the children and Ms. Sabourin, who was involved with the children since January 2020.
Statement 18 and 22:
[155] Statements 18 and 22 are being advanced as narrative. In the circumstances, I am satisfied these utterances are admissible as a traditional exception.
Statement 19:
[156] The Society wishes to rely on this statement for truth and/or state of mind. The witness took verbatim notes.
[157] The Father relies on his general submissions, above.
[158] The Mother submitted that while it may be true that the child would be upset, at the end of the day what is the Court to do with that information. Ultimately, in many ways it is irrelevant, with low probative value and does not relate to any of the questions the Court needs to determine.
[159] I am satisfied on a balance of probabilities that this statement meets the criteria for admissibility under this principled exception (for truth) and for the traditional exception, state of mind as the child was sad.
Statement 20:
[160] The Society wishes to rely on the statement by N as state of mind. The child did not want to talk about family photographs and was upset. The utterance was made to the worker, there was no reason to fabricate. The notes were taken verbatim.
[161] The parents rely on their general submissions, above.
[162] I am of the view that the child’s state of mind is admissible, that the child was upset on the date in question.
Statement 21:
[163] The Society wishes to rely on the statement to demonstrate A and N’s state of mind as they were refusing to participate in calls with her mother on April 13, 2021. The worker took notes regarding the dates and circumstances. The children had a good relationship with the worker.
[164] The parents rely on their general submissions, above.
[165] I am of the view that the children’s state of mind is admissible, that the children’s feelings were hurt, or they did not want their feelings hurt.
Statement 23:
[166] The Society wishes to rely on the statement to go to A’s state of mind, to express happiness and worry about a visit with her Mother.
[167] The parents rely on their general submissions, above.
[168] I am of the view that the children’s state of mind is admissible, that the child was both happy and worried on June 1st, 2021.
Statement 24:
[169] The Society wishes to rely on the statement to go to truth and state of mind regarding gifts being sent and a visit.
[170] The Father relies on their general submissions, above.
[171] The Mother submits that if the statement were about A being sad, that could be state of mind. However, it cannot go in for truth as to the gifts being sent or not.
[172] I find that the child’s state of mind is admissible, that the child was sad on June 15, 2021.
Statement 25:
[173] The Society wishes to rely on the statement to go to truth and state of mind. The statement was made to the worker, who took notes, who had a relationship with her. This matches another statement made by the child regarding visits.
[174] The Father submitted that the child having big feelings does not assist the Court in determining what is in the child’s best interest. Further, the background evidence shows that there was good summer access, both in-person and virtually, between the Father and A.
[175] I am of the view that the statement should go in for the child’s state of mind, that she had big feelings on July 22, 2021.
Statement 26:
[176] The Society wishes to rely on the statement to go to truth or alternatively state of mind regarding both children’s statements. A part of the statement goes to the children’s views and preferences. Though not recorded, there were notes, and these statements were made in a private interview where no other adults were present, and the children could not hear each other. They were made to a trained worker. Despite what the children expressed as a view not being a viable outcome, does not undermine their views.
[177] The Father submitted this may be relevant if the foster home presented long term plan, but that is not the plan.
[178] The Mother submitted that the statements about “still have things to do to be a good mommy and daddy” is not from the child’s language. It was suggested this was something the child would have been told, and this is simply repeating someone else’s words. The children are not the ones who are supposed to be providing information on whether the parents are good or bad parents. This should not be admitted. Also, in terms of views and preferences, that the children wish to remain in the foster home does not assist the Court in determining what placement is in their best interest. These children were removed from their family, with no contact to their parents for months. The foster home became the only thing they have had in terms of consistency. The fear of moving, or the fear of the unknown may influence the children. Ultimately, as the foster home is not a final plan, therefore this is not evidence the Court can use.
[179] For reasons outlined by the Society, I am of the view that the utterances are admissible under the traditional exception, in particular with regard to the children’s views and preferences on August 24, 2021.
[180] I agree with the parents that the remainder is not admissible for truth.
Carole Lafontaine
[181] Statements 27 and 28 form Carole Lafontaine.
[182] Ms. Carole Lafontaine has been an interpersonal collaborator for 20 years. She, like the other workers for the Society, testified to taking notes at the time or very shortly after, those notes then are entered into CPIN where they cannot be modified after 24 hours.
Statement 27:
[183] The Society seeks the admission of this statement to go to N’s state of mind. N was refusing visits, which is consistent with her other testimony.
[184] The Father relies on his general submissions, above.
[185] The Mother argues this is state of mind, which must be contemporaneous feeling. N had not seen her parents in over a year and a half. As such, as she described her parents hurting her, or not wanting to be hurt, it is not currently ongoing. This is based on history, therefore no admissible as to state of mind.
[186] I agree with the Mother’s submission, that this statement does not meet the criteria for admissibility.
Statement 28:
[187] Statement 28 is being advanced as narrative. In the circumstances, I am satisfied this utterance is admissible as a traditional exception.
Carole M.
[188] Statements 29 and 30 are from the trauma counsellor, Ms. Carole M.
Statement 29:
[189] The Society seeks the admission of this statement for to go in for truth. Ms. M. is a trained professional, who provided counselling for the girls, and was the social worker for them through CHEO. She has no interest in the outcome. She took notes. The statement was repeated by N in a few sessions. There was no reason to fabricate, and the child used clear language.
[190] The Father submitted that these utterances were a year later, and N is simply repeating things she said during the year. It was submitted that this shows the children say what the questioner wants to hear.
[191] I am satisfied on a balance of probabilities that this statement meets the criteria for admissibility under the principled exception, and shall go in as truth.
Statement 30:
[192] The Society seeks the admission of this statement for to go in for A’s state of mind on December 18, 2020.
[193] The Father submits that it does not advance the case. A started seeing her Father in June 2020, and the visits were really good.
[194] The Mother relies on her general submissions, above.
[195] I find that the statement should go in for the child’s state of mind, that on December 18, 2020, A was sad.
Laurence P.
[196] Statement 31 from the Occupational Therapist, Ms. Laurence P.
Statement 31:
[197] The Society seeks the admission of this statement for to go in truth and/or state of mind. The notes were made contemporaneously. There was no motive to fabricate. This witness has no vested interest in the outcome.
[198] The parents rely on their general submissions, above.
[199] For the reasons advanced by the Society, I am satisfied on a balance of probabilities that this statement meets the criteria for admissibility under both the traditional exception and the principled exception. The child’s state of mind will simply reflect she was sad.
Anne K.
[200] Statements 32 and 33 emanate from Anne K., the trauma counsellor.
Statement 32:
[201] The Society seeks the admission of this statement for to go in as state of mind. Ms. K. is a professional, who takes notes, and who has no vested interest in the outcome of these proceedings.
[202] The parents rely on their general submissions, above.
[203] I am not persuaded that the statement is admissible under the traditional exception, and therefore is not admitted. It does not reflect N’s emotion, intent, motive or plan, or any other necessary criteria.
Statement 33:
[204] The Society seeks the admission of this statement for to go in for A’s state of mind. Ms. K. is a professional, who takes notes, and who has no vested interest in the outcome of these proceedings.
[205] The parents rely on their general submissions, above.
[206] I find that the statement should go in for the child’s state of mind, that on March 1st, 2021, A was sad.
Lisa T.
[207] Statements 34 to 44 (including a re-numbered statement 36(a) are from the foster mother, Ms. Lisa T.
[208] Regarding the nature of the relationship between the children and Ms. T., she has been the foster mother for the children since December 2019. The children both know and trust Ms. T. It was submitted that the children would be most candid with Ms. T.
[209] As noted above, the parents strongly argued that this witness has a vested interest in the outcome. She was referred to as the Society’s “cheerleader”. The witness took no notes and made no recordings of any of the utterances, which was extremely concerning given the number of times the children were questioned by her. It was submitted that Ms. T. (and Ms. Sequin) were told to stop questioning the children.
[210] Moreover, Ms. T. had voiced concerns to two professionals about the children’s ability to tell the truth.
Statement 34:
[211] The Society seeks the admission of this statement for to go in for the truth. The utterances, made February 18, 2020, were made spontaneously. The children have no reason to fabricate, they had been at Ms. T.’s home for months. Ms. T. immediately called the 24/7 line to report the statements. Though there were no notes, she had an excellent memory of the details, including demeanor, body language and emotions.
[212] The parents rely on their general submissions, above.
[213] The Father also argues this is more of the same questioning from February 2020.
[214] I am satisfied on a balance of probabilities that these statements meet the criteria for admissibility under the principled exception and are admitted as truth. On a balance, I am not persuaded that Ms. T. has a vested interest. She provided a very detailed account of the utterances and the children’s demeanor, body language and emotions. The children’s statements were detailed and coherent. I am not persuaded there was motive to fabricate.
Statement 35:
[215] The Society seeks the admission of this statement for to go in for the truth. This is the same statement as statement 13, above. The parents rely on their general submissions.
[216] For the same reasons as statement 13, I am satisfied on a balance of probabilities that this statement meets the criteria for admissibility under this principled exception. The statement was recorded (though the recording was not available, a transcript was available). Satisfactorily detailed notes were also taken. A was the first person interviewed, and she did not want to be away from her sister. While A was talking, N was drawing and not paying attention. N had wanted the support person to be present. The children’s statements were detailed and coherent. I am not persuaded there was motive to fabricate. The children’s statements have been sufficiently consistent over time.
Statement 36:
[217] The Society seeks the admission of this statement for to go in truth. The Society submits that the statement is substantially reliable. Ms. T. has no vested interest; this utterance is made months after the initial disclosure. Ms. T. has a very clear recollection about the disclosures.
[218] The parents rely on their general submissions, above.
[219] The Father also argued that it was a made-up story as N could not describe her Father’s penis or testicles when he was allegedly naked.
[220] I am satisfied on a balance of probabilities that these statements meet the criteria for admissibility under the principled exception and are admitted as truth. On a balance, I am not persuaded that Ms. T. has a vested interest. She provided a very detailed account of the utterances, which were very detailed. I am not persuaded there was motive to fabricate.
Statement 36a:
[221] The Society seeks the admission of this statement for to go in truth. The Society submits that the statement is substantially reliable. It was a spontaneous statement. Ms. T. has no vested interest. Ms. T. has a very clear recollection about the disclosures and the day in question.
[222] The parents rely on their general submissions, above.
[223] I am not persuaded the statements meet the criteria for admissibility under the principled exception. The statement was made in December 2020, removing any rational basis for A’s statement. Further, based on my notes from the voir dire, there were further discussions about M touching her, which are not sought to be introduced. As for the second part of the statement, it is not clear from the statement who told the children they are not allowed to talk about it. Ultimately, I am of the view that the prejudicial effect of this statement outweighs any probative value it may have. It is therefore not admitted.
Statement 37:
[224] The Society seeks the admission of this statement for to go in for truth. The Society submits the foster mother has no vested interest. The child makes an utterance to Ms. T. The child attends the police station on June 25, 2021, where at 9:50 a.m., she denies anyone touched her vagina. At 11:30 a.m. on June 25, 2021, the child makes the utterance found at Statement 12. Then on July 20, 2021, the child tells police that there were incidents.
[225] The parents rely on their general submissions, above. Additionally, the Father submits that the child was pleasuring herself. It was suggested that the child was put in an awkward situation and know if she blames her Father, she can get out of it.
[226] I am of the view that these utterances, in this context, have more prejudicial effect than probative value. They are not admitted at trial.
Statement 38:
[227] The Society seeks the admission of this statement for to go in for state of mind. There is no explanation or causation to elicit the utterance. The child’s response was from July 9, 2020. There was no motive to fabricate.
[228] The parents rely on their general submissions, above. Additionally, the Father questions how this could be admissible.
[229] For reasons outlined by the Society, I am of the view that the utterances are admissible under the traditional exception, in particular with regard to the child’s views and preferences on July 9, 2020.
Statement 39:
[230] The Society seeks the admission of this statement for to go in as state of mind, as to N and V’s views and preferences.
[231] The parents rely on their general submissions, above. The Father added that he did not see how it helps the Court, particularly when the foster home is not a permanent plan.
[232] I am of the view that the utterances are admissible under the traditional exception, in particular with regard to the child’s views and preferences on July or August, 2020.
Statement 40:
[233] The Society seeks the admission of this statement for to go in for truth and state of mind. It was submitted that other witnesses corroborate that the Father missed visits and did not come in-person as he said he would. The witness has no vested interest.
[234] The parents rely on their general submissions, above.
[235] I am of the view that the utterances are admissible under the traditional exception, with regard to the child’s state of mind, that A is upset.
Statement 41:
[236] The Society seeks the admission of this statement for to go in for N’s state of mind. It was made by N spontaneously; the foster mother was encouraging contact. There were no circumstances of suspicion.
[237] The parents rely on their general submissions, above.
[238] I am of the view that the utterances are admissible under the traditional exception, in particular with regard to the child’s views and preferences in November 2020.
Statement 42:
[239] The Society seeks the admission of this statement for to go in for truth and state of mind. They submit that it was reliable as it was said directly to the Father and the witness remembered the conversation vividly.
[240] The parents rely on their general submissions, above.
[241] I am not persuaded that the utterances are admissible under the principled exception, but find them admissible under the traditional exception, as to N’s state of mind on December 3, 2020.
Statement 43:
[242] The Society seeks the admission of this statement for to go in for truth and/or state of mind. The utterance was reliable as another witness testified that the Mother missed visits with A. It is like the statement 25 with Ms. Sabourin and what she told to Ms. P. The witness has no vested interest. The child prompted the telephone call.
[243] The parents rely on their general submissions, above.
[244] I am not persuaded that the utterances are admissible under the principled exception, but find them admissible under the traditional exception, as to A’s state of mind in December 2020.
Statement 44:
[245] The Society seeks the admission of this statement for to go in for truth and/or state of mind. That the child was sad, to point out inconsistencies of promising to come in-person. That there is an accurate recollection of the statement, consistent with other statements made by A.
[246] The parents rely on their general submissions, above.
[247] I am not persuaded that the evidence is admissible under the principled exception, but find it admissible under the traditional exception, as to A’s state of mind in June or July 2021.
Ruling
[248] For the reasons set out above, the following statements are admitted to the trial:
[249] For truth: 1, 12, 13, 15, 16, 17, 19, 29, 31, 34, 35, 36
[250] For state of mind: 2, 3, 4, 6, 7, 8, 11, 19, 20, 21, 23, 24, 25, 26, 30, 31, 33, 38, 39, 40, 41, 42, 43, 44
[251] For narrative: 9, 18, 22, 28
[252] Not admitted: 5, 10, 14, 27, 32, 36(a), 37
[253] I leave the issue of ultimate reliability and the weight to be accorded to the individual statements to my final deliberations, with the proviso that only the relevant portion of the statements will be considered by me at that time.
Justice Hélène C. Desormeau
Date: January 14, 2022
COURT FILE NO.: 284/19
DATE: 20220114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Valoris for Children & Adults of Prescott-Russell, Applicant
AND:
J.W., C.R., and Muskeg Lake Cree Nation, Respondents
Ammended Reasons for decision - admissiblity of children’s hearsay statements
Justice Hélène C. Desormeau
Released: January 14, 2022