COURT FILE NO.: CR-21-00000009-00AP
DATE: 2022 10 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Maureen McGuigan for the Respondent Crown
- and –
MIKAIL ADEKUNLE
Marianne Salih and Alexander Ostroff for the Appellant
HEARD: February 23, 2022 by Zoom conference
JUDGMENT ON SUMMARY CONVICION APPEAL
[On appeal from the judgment and sentence imposed by Justice A. Cooper, dated November 12, 2020, and February 16, 2021]
PUBLICATION BANNED UNDER SECTION 486.3 OF THE CRIMINAL CODE PROHIBITING THE PUBLICATION OF ANY INFORMATION THAT WOULD TEND TO IDENTIFY THE COMPLAINANT L.M. THIS JUDGMENT CONFORMS WITH THIS BAN AND CAN BE PUBLISHED
D.E HARRIS J.
INTRODUCTION
[1] The Appellant, a personal support worker (PSW), was charged with sexual assault and sexual exploitation of a person with a disability. The trial judge convicted of the sexual assault and acquitted of the sexual exploitation.[^1] The Appellant now appeals conviction and sentence.
[2] The complainant L.M. resides in a long-term care home for seniors. She is much younger than the other residents- 43 years old at the time of trial- but has Down Syndrome. Her ability to communicate is limited. The witnesses at trial testified that she is unable to live on her own.
[3] The complainant was called as a witness by the Crown. The trial judge held that she could testify under the Canada Evidence Act as a person who did not understand the oath or affirmation but who could promise to tell the truth and communicate the evidence: Section 16(3.1). However, she did not adopt her videotaped statement to the police and was not able to testify otherwise.
[4] As a result, the Crown’s case was built primarily on hearsay statements made by the complainant to her sister, R.R. and to a police officer, implicating the Appellant. The trial judge held in a voir dire that the statements were admissible under the principled exception to the hearsay rule and, in addition, as res gestae spontaneous statements. On the trial at large, the trial judge rejected the Appellant’s testimonial denial and found him guilty of the sexual assault count.
[5] The Appellant argues that the hearsay ought not to have been admitted. In my view, with respect, the trial judge’s reasons admitting the hearsay were flawed and rested on errors of law. The appeal must be allowed and the conviction set aside.
THE HEARSAY STATEMENTS TO THE SISTER AND THE POLICE OFFICER
[6] The complainant’s sister, R.R., testified that on June 8, 2019, she picked the complainant up from the home in which she lived to take her to lunch. R.’s husband B.R. was also present. In the parking lot on the way to the car, the complainant said that “Michael”--a nurse--had come into her bedroom at night and touched her boobs, bum and “he touched me there like that.” When she was saying this, she touched her breasts, her back side and put her hand flat against her vagina and wiggled her fingers. She did not provide a description or last name for “Michael” and—importantly--did not specify when the incident place. L. repeated the allegations again in the car.
[7] Officer Toth attempted to interview the complainant the day after the disclosure to the complainant’s sister, on June 9, 2019. However, because of the complainant’s disability, it was difficult for the officer to understand her. The complainant did not understand Officer Toth’s questions asked in order to determine whether she knew the difference between the truth and a lie. Part way through questioning, Officer Toth called in R. to help her understand what the complainant was saying. The complainant demonstrated that the defendant had touched her breasts and her bum and vagina under her clothing. She said it happened at nighttime and in her room, but she did not know which night. The statement was videotaped but it was not sworn.
[8] The transcript of the videotape interview shows the complainant struggling to communicate. When asked how many times the person had touched her, L. said that she did not know. Questioned about what room she was in when she was touched, L. did not answer, although later in the interview she did say it was in her bedroom. When it was suggested that she was in the activity room with the perpetrator, she could not answer directly. When the police officer asked whether the man had ever taken her outside where she lives, L. mentioned the Blue Jays. There are quite a few other examples in which it was far from clear that the complainant understood the questions being asked and was not able to give coherent and responsive answers.
THE STATEMENTS MADE BY THE COMPLAINANT IDENTIFYING THE APPELLANT
[9] R. immediately reported the disclosure from the complaiant to K.D., the Director of Care at the home. R., her husband and the complainant then left the home for lunch as planned. They were called by cellphone soon after and asked to return. When they got back to the home, the Appellant was sitting in a chair by the lobby, speaking on his cell phone. The complainant told R. “that’s him” and then went up to the Appellant and said “you’re going to get it.”
OTHER EVIDENCE
[10] Ms. D. interviewed the complainant on June 9, 2019. Ms. D. testified that the complainant told her that the Appellant had kissed her and touched her breast and lower abdomen when he came into her room. In examination-in-chief, she testified that R. told her it happened the night prior. In cross-examination, D. said that L. told her it was the night prior. She agreed that L. had memory problems specifically related to dates. There was no application to admit any of this hearsay.
[11] Ms. D. also interviewed the Appellant that day. The assistant director of care at the home was also present. Both Ms. D. and the assistant director took notes, but the assistant director was instructed to shred her notes as she was told they were not necessary. Ms. D.’s notes were filed as an exhibit. The notes indicated that when Ms. D. asked the Appellant if he had entered the complainant’s room, the defendant told her that he peeked through the complainant’s door because she rang the bell but did not go inside. When asked if he otherwise assisted the complainant, the Appellant said that she showed him a Michael Jackson book and T-shirt. The complainant is a big Michael Jackson fan.
[12] The accuracy of Ms. D,’s notes was challenged by the defence. Ms. D. conceded that it was possible that things were said in the interview which she could not remember.
[13] Ms. D. initially claimed to have reviewed the surveillance from the three days prior but then conceded she could not remember and finally agreed that the only surveillance tapes she reviewed were from the shift that the Appellant was working.
THE SURVEILLANCE VIDEO
[14] Surveillance footage from the home on the evening of June 7, 2019 was admitted at trial. It revealed the following:
[15] At 10:02 p.m. the Appellant opened the door to the complainant’s room, peeked inside and then closed the door and left. The light was on in the room.
[16] Three minutes later, at 10:05 p.m., the Appellant entered the complainant’s room and closed the door behind him. He was carrying one towel in each hand. Shortly after, he left the room with the same towels.
[17] In the time between 10:14 p.m. and 10:42 p.m., the Appellant and complainant were together for at least three periods of time in the activity room or in the hallway of the home. At 10:28 p.m., the video shows the complainant exiting her room and showing a Michael Jackson T-shirt to the Appellant. At 10:56 p.m., the Appellant opens the door to the complainant’s bedroom and enters. He leaves the room at 10:57 p.m.
THE APPELLANT’S EVIDENCE
[18] In his trial evidence, the Appellant denied the allegations. The trial judge rejected his evidence, finding that he had sexually assaulted the complainant when he entered her room at 10:56 p.m.
[19] The Appellant testified that before 9:30 p.m., the complainant came to him asking for a towel. A PSW on the same shift confirmed that the complainant often asked for towels. When the Appellant peeked into her room at 10:02 to ask if she still needed a towel, she said that she did. The Appellant testified that he brought the towels to the complainant and left them on the bed. There were two towels on the bathroom floor, one dry and one wet. He put on his gloves and rinsed out the wet one. He then took off his gloves and disposed of them in a bag in the room and carried the towels out of the room.
[20] The Appellant testified that when he went in at 10:56 p.m., the bed light and washroom light were on. He entered to apologize for having been too busy to look at her Michael Jackson book and shirt. He told her he was going home and said goodbye.
[21] The Appellant denied telling Ms. D. that he did not go in the room. He testified that he did enter to give towels to the complainant.
THE ALTERNATE SUSPECT EVIDENCE
[22] The assistant director of the Home confirmed that an African man by the name of Victor Peters who looked similar to the Appellant, worked at the home. He was working the same evening as the Appellant, June 7. The video surveillance footage showed Mr. Peters walking by the complainant’s room once on the evening of June 7, 2019. Cst. Toth confirmed that the video surveillance showed Peters walking by the complainant’s room at approximately 10:47, 10:54, and 10:55 p.m. He did not enter the room during these times.
THE TRIAL JUDGE’S REASONS ADMITTING THE HEARSAY EVIDENCE
[23] The hearsay application was referred to by trial counsel (not counsel on this appeal) and the trial judge as a “Khan” application. The Khan case was the only hearsay case the trial judge referred to in his reasons. He found the tendered evidence to be necessary and reliable, hence admissible. In the critical passage of his reasons, the trial judge held,
First of all, it was an unprompted spontaneous statement to her sister on the day of and the day after. Her statement was made by the complainant and the day after the statement was made to the police by the complainant. There was no motive to lie or fabricate. She had a good relation with the staff of the Home. Complainant did a demonstration. The video surveillance confirmed that the defendant was with the complainant in the room, her bedroom, where the assaults are alleged to have occurred. The defendant lied in a statement to D. about actually going into her room. He went in when the lights were off. There was no help request light on. With a safety check he is not supposed to actually go in and if he does go in, he is supposed to go in with a female support worker, either a nurse or a personal support worker. And no care was provided because such care is supposed to be documented on the iPad and none was entered. And when the defendant did go in the room with towels, which were folded, he came out with the same folded, unused and same number of towels. So there was no apparent reason for him to go in and especially without a female co-worker and what he did was inconsistent with a safety check and obviously if he did provide care he did not document it as he was supposed to. But it appears there was no need for assistance. (Emphasis added)
[24] After a discussion of the Court of Appeal and Supreme Court decisions in R. v. Khan (1988), 1988 7106 (ON CA), 42 C.C.C. (3d) 197, 64 C.R. (3d) 281 (Ont.C.A.); 1990 77 (SCC), [1990] 2 S.C.R. 531, the trial judge held the hearsay evidence met the threshold for admissibility under the principled exception. It appeared that the trial judge believed the circumstances in the present case were analogous to Khan although he never said so expressly.
[25] The trial judge then continued on and concluded that the hearsay also met the common law requirement for admission under the res gestae spontaneous statement exception to the hearsay rule. This applied to both sets of statements, both the statements to her sister and the police officer and the “that’s him” and “you’re going to get it” hearsay statements made in the presence of the Appellant. The trial judge held,
This was a very traumatic event. It was a spontaneous declaration. In my view, on the threshold basis of reliability, it would discount the possibility of concoction, fabrication or deception. I find that evidence is admissible as an exception to the hearsay rule. So both — the Crown application is granted on both basis and I remind everyone that the onus is still on the Crown to prove guilt beyond a reasonable doubt and I have not determined ultimate reliability whatsoever. (Emphasis added)
THE REASONS FOR CONVICTION
[26] The trial judge rejected the evidence of the Appellant. He did not believe his evidence that the complainant asked him to bring her two towels. The trial judge also did not believe the statement to D. that he peeked in the room because the complainant had called for him. The video showed that the call light was never flashing. Further, the Appellant explained why he went into the room at 10:05 p.m. but never explained his entry at 10:56 p.m. even though the Crown asked him about it in cross-examination.
[27] The trial judge found that the sexual assault occurred after the 10:56 p.m. entry. The complainant would never have gone to the activity room to show him her Michael Jackson items (as it was established by the video evidence that she did) if the assault had occurred before that point. The trial judge said that the complainant was greatly offended by his actions as was obvious the next day when she confronted him.
ADMISSIBILITY OF THE HEARSAY STATEMENTS TO THE COMPLAINANT’S SISTER AND THE POLICE OFFICER
Introduction
[28] Looking first at L.’s declarations to her sister and the police officer, with respect, the trial judge’s reasons demonstrate several errors in the understanding and application of both the principled hearsay exception and the common law spontaneous utterance, res gestae exception. Part of the problem is that the trial judge relied solely on the Khan decision dating back 30 years ago. There have been major developments since that time. The more recent jurisprudence from the Supreme Court provides indispensable guidance in grappling with a hearsay problem, particularly one that is heavily dependant on corroboration as this one was.
[29] The approach to the hearsay issues in this case must begin with the basics. The declarant’s statements given to her sister R.R., the police officer and the statements identifying the Appellant in the presence of R.R. were all tendered for their truth. Being hearsay, they were presumptively inadmissible. Following the general approach to the principled exception, evidence could gain admission only if it was necessary and reliable.
[30] In this case, the hearsay was clearly necessary as the complainant was incapable of testifying. The sole issue was whether the evidence demonstrated sufficient circumstantial guarantees of reliability to be rendered admissible.
PROCEDURAL RELIABILITY WAS WEAK
[31] In Bradshaw, the Supreme Court held that procedural or substantive reliability either alone or in combination can appease the specific hearsay dangers in a given instance: Bradshaw, paras. 28-32. In this case, there were insufficient indications of procedural reliability. The complainant spoke to her sister, but it was not under oath nor videotaped. When the complainant spoke to the police officer the next day, it was videotaped but there was no oath. It was ascertained by the officer that the complainant could not differentiate between a lie and the truth. It is sometimes difficult or impossible to understand the complainant because of her communication difficulties. No cross-examination at any point was conducted or could have been. Procedural reliability assurances were clearly insufficient to counteract the pertinent hearsay dangers: Bradshaw, para. 26-32
A review of the four Bradshaw tests as applied to this case
[32] Admissibility in this case depended almost exclusively on substantive reliability. The Supreme Court summarized the correct approach in Bradshaw (para. 54):
identify the material aspects of the hearsay statement that are tendered for their truth;
identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.
[33] Following the first test, the material aspect of the hearsay was that “Michael” came into her bedroom at nighttime and touched her in sexual areas of her body: Bradshaw, paragraphs 45-46.
[34] The second test from Bradshaw is that the corroborative evidence must in the circumstances allay the specific hearsay dangers. The “corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination (Khelawon, at para. 107; Smith, at p. 937)”: Bradshaw, para. 47. In this case, as the quote from his reasons shows, the trial judge encapsulated the hearsay dangers as being the motive to lie or to fabricate.
[35] Third, alternative explanations for the statement must be identified and, fourth, they must be ruled out to the extent that the only remaining likely explanation is the truthfulness and accuracy of the statement. If equally consistent with alternative explanations, the corroboration fails to surmount the hearsay dangers: Bradshaw, para. 48-49.
[36] The trial judge did not expressly apply Bradshaw or embark on this kind of exercise. He did not search for alternative explanations. However, his reasons do correspond to several of the Bradshaw steps.
THE TRIAL JUDGE’S ERRORS
The Articulation of the Hearsay Dangers Failed to Include Reliability Concerns
[37] It is unclear whether the trial judge undertook the first step from Bradshaw and isolated the material aspects of the hearsay statements. It is unnecessary to decide this question given my conclusion on the other Bradshaw criteria.
[38] In looking at the second Bradshaw category, as his reasons quoted above show, the trial judge particularized the hearsay dangers as a “motive to lie or fabricate.” Later, in relation to the identifying utterances from the lobby of the home, the trial judge held that the spontaneity of the utterances discounted the possibility of “concoction, fabrication or deception.”
[39] This description of the hearsay dangers was incomplete. Along with credibility, reliability was a major issue. In R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, Justice Fish catalogued the potential dangers of hearsay,
32 First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. (Emphasis in original)
[40] In this instance, although credibility was in play, reliability was undeniably a major issue, probably the major issue. In this regard, this case is analogous to R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. The complainant there was 81 years old and lived in a retirement home. When he made the statement to an employee, he was bruised and appeared to be shaky and in shock. Justice Charron in explaining why the hearsay was inadmissible, held that one of the reasons was the complainant’s limited capacity (at para. 107),
Mr. Skupien was elderly and frail. His mental capacity was at issue — the medical records contained repeated diagnoses of paranoia and dementia. There was also the possibility that his injuries were caused by a fall rather than an assault — the medical records revealed a number of complaints of fatigue, weakness and dizziness
[41] By the time of trial, the complainant had died. No cross-examination was possible. Similarly, the complainant here could not be cross-examined. She was unable to pass the police officer’s test with respect to differentiating between the truth and a lie; she could not testify when she was on the witness’ stand and did not adopt her police video statement.
[42] In this case, like in Khelawon, the complainant’s potential unreliability loomed large. Care must be taken to ensure that stereotypes and sweeping generalizations about mentally disabled individuals do not lead to the clearly unwarranted conclusion that there an inherent unreliability to their evidence. The actual evidence and the individual witness must be examined. But in this case, it could not be denied that the complainant’s disability had a potentially significant impact on the reliability of her evidence.
[43] R., the complainant’s sister, gave evidence on the voir dire about her sister’s mental capacity. R. said that L. is very limited in speaking and has a very limited vocabulary. In terms of her cognitive abilities, when you are talking to L. you need to limit your words or simplify your choice of words. L. can say a lot of single words and common things but she cannot talk fluently in a sentence. You have to know L. and be with her to understand her. It is necessary to look at her and listen to her and be patient to really hear what she is saying.
[44] R. said that L. does not understand things like sex. She does not understand jokes and cannot tell jokes. L. cannot tell you a fictional story. She does not understand sarcasm. L. cannot convey her feelings in language. L. did not understand why R. could not visit her during COVID. She was angry about going to court and having to explain things and she blamed R. for it. R. also said that L. had a good memory “with people in her circle” and for the people and family in her life.
[45] The video interview displays well the complainant’s disabilities. Her language skills are severely limited. She is able to convey meaning but the process is a difficult one.
[46] The trial judge erred in not encapsulating reliability as a hearsay danger. A failure to correctly articulate the hearsay dangers present in a specific case will often undermine the ultimate decision. Without a proper appreciation of the dangers, it is not possible to formulate what is needed to counteract them. In this case, while there were credibility issues, it was error for the trial judge not to recognize the major reliability problems arising out of the hearsay evidence.
Errors were Made with Respect to Corroborative Evidence Used to Bolster the Complainant’s Hearsay Statements
[47] In the key passage quoted above, the trial judge relied for corroboration on the Appellant lying to D. about actually going into the complainant’s room. The Appellant said that he peeked into the room but never went into it. That was untrue as he went in once at 10:05 p.m. and again at 10:56 p.m. Also, the trial judge summarized that there was no apparent reason for him to go in and especially without a female co-worker. The call light was not on. What he did was inconsistent with policy. He did not document the care provided. Furthermore, when the defendant did go in the room with folded towels, he came out with the towels unused and still folded.
[48] The Supreme Court decision in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 held that corroborative evidence could never assist in the admission of hearsay under the principled exception. This conclusion was overturned in. Khelawon. Now under Khelawon and Bradshaw, corroboration can have a substantial impact on admissibility but the corroboration must go well beyond the general confirmation seen in other contexts, such as in the Vetrovec context for example: see R. v. Brooks, 2000 SCC 11 (S.C.C.); R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104. It must be much more specific and pointed.
[49] The evidence the trial judge used as corroboration strayed far from the circumstances of the complainant’s hearsay statement and delved into circumstances indicative of the Appellant’s guilt. The approach to corroboration in Bradshaw does not prohibit this. But some of the purported corroboration, contrary to the trial judge’s conclusion, possessed little weight.
[50] Evidence that the Appellant lied to D. about going into the complainant’s room was important corroboration supporting the veracity of the hearsay statements. However, the trial judge referred to some other evidence that either had no or little corroborative value. There are three errors in this regard.
[51] First, a significant part of the corroborating evidence reflected in the trial judge’s hearsay ruling revolved around events occurring between 10:02 p.m. and slightly after 10:05 p.m. These were the actions caught on video surveillance, including: the call light not being on when the Appellant entered the room, and the towels he carried in and out. The trial judge in his reasons concentrated on the towels and found that the towels were used as a pretext for going in the room.
[52] However, any potential corroboration was significantly reduced by the evidence of the complainant, after the time the towels were carried in and out, being with the Appellant in the activity room or the hallway at least three times between 10:14 p.m. and 10:42.
[53] It is true that a complainant’s after-the-fact association with her abuser must be approached with sensitivity. Caution must be used so as not to fall into stereotypes. The specific facts in each instance are what govern, not generalities about how complainants are expected to react: R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218 affirming, R. v. A.R.D. (2017) 40 C.R. (7th) 306, 2017 ABCA 237 (Alta. C.A.).
[54] In this case, at the least, the trial judge had to consider the impact of the complainant willingly associating with the Appellant in the activity room after the initial time period of 10:02 p.m.—10:05 p.m. He did not do so. That is ironic because, in his ultimate reasons finding the Appellant guilty, the trial judge made much of the association in the activity room, finding that because of it, the offence could not have taken place at 10:05 p.m. It must have taken place at 10:56 p.m.. He said,
[63] It is my conclusion that the sexual assault took place after the 10:56 p.m entry, just before the end of the shift at 11 p.m. Had it taken place before this, it is my view that [L.] would have had nothing to do with the defendant, and would not have gone to the activity room to show him her Michael Jackson items. She was greatly offended by his assault, as was obvious the next day when she confronted him in the lobby.
[55] This same evidence of the association in the activity room—adduced during the voir dire—ought to have led the trial judge to ask whether the events between 10:02 p.m.—10:05 p.m. actually had the effect of buttressing the case for the hearsay statement being true. The activity room evidence had a tendency to reduce the importance of the purported corroborating evidence from the earlier period of time and disconnect it from any support it might otherwise have lent to the reliability of the hearsay statement. It should be noted that there was no evidence or argument that in the earlier time frame, the Appellant was planning the offence or did something that somehow facilitated the offences committed later.
[56] The second problem was that the proposed corroboration was hampered by the fact the complainant never stated on what day the sexual assault occurred. L. did not specify a time the offence occurred when she spoke to her sister; she told the police officer that she did not know when it happened. Although there was more precise evidence from D., this evidence was hearsay and was never sought to be admitted for its truth.
[57] The corroboration the trial judge relied upon focussed on events that occurred between 10:05 and 10:42 p.m. on June 7. However, aside from the general inference that the complainant may well have complained relatively soon after the offence was committed against her, no other evidence supported the conclusion that this was the accurate time period of the offence. If the event happened at any other time, the probative value of the majority of the corroboration evidence used by the judge would be reduced to a much lower value. The trial judge never addressed this significant problem in his voir dire reasons.
[58] The third flaw in the reasons on the subject of corroboration was the trial judge’s description of the statement to the sister and the police officer as spontaneous and in reaction to a traumatic event. He relied on this to fortify the principled exception for admission. It also led him to conclude that the statements were admissible under the common law spontaneous statement exception to the hearsay rule. With respect, the trial judge erred on both grounds.
[59] The frame of reference for evaluating spontaneity was set by the time and circumstances of the alleged sexual assault. The offence could not realistically have occurred any time after about 10:00 p.m.--11:00 p.m. on June 7. It may have occurred before; it is not clear. But it certainly could not have occurred after. Against this time frame, the statements to the sister and police officer were made about lunch time the next day.
[60] Looking at the common law exception first, in Khan (S.C.C.), a fifteen-minute gap was held insufficient to permit operation of the spontaneous utterance exception to the hearsay rule: see para. 15. Although the time period required to render a statement spontaneous cannot be reduced to a set number, clearly the 12 hours overnight in this instance does not meet the test. Furthermore, the utterance must be given under stress or pressure and that was lacking here as well: R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241 at paras. 77-88; R. v. Khan, 2017 ONCA 114 (Ont. C.A.) at para. 41; leave to appeal refused [2017] S.C.C.A. No. 139 at para. 15; R. v. Dakin (1995), 1995 1106 (ON CA), 80 O.A.C. 253 (C.A.).
[61] It was therefore a clear error of law to rely on the common law exception as a basis for admission. Furthermore, turning to the principled exception, spontaneity that does not attain the high level required to meet the common law hearsay exception may nonetheless contribute to admission of hearsay under the principled exception. An example is the holding in Khan that the statement there was sufficiently spontaneous to add to the circumstantial guarantees of trustworthiness underlying the principled exception, despite not being sufficient to achieve admission through the common law (see the comment in Khelawon at paragraph 67).
[62] In my view, the statements at issue here fail on this level as well. In relation to the time frame of the pertinent event—the sexual assault—the statements were not spontaneous even in the less-exacting, less stringent sense used in the principled exception jurisprudence. While the statements were not prompted, their timing and the circumstances in which they were made were insufficient to give them any significant degree of spontaneity.
[63] Overall, the corroborative evidence, particularly in light of the trial judge’s errors, was not compelling. The towel evidence, for example, was not strong even without the flaws in the trial judge’s reasoning.
[64] In the hearsay analysis, the probative force of corroborative evidence is critical. This was emphasized in Bradshaw, where it was said,
50 To be relied on for the purpose of rejecting alternative hypotheses for the statement, corroborative evidence must itself be trustworthy. Untrustworthy corroborative evidence is therefore not relevant to the substantive reliability inquiry (see Khelawon, at para. 108). Trustworthiness concerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence (see Lacelle, at p. 390.)
[65] On the evidence as a whole, on the test required by Bradshaw at para,. 47, it cannot be said that the only likely explanation for the material content of the declarations was their veracity.
The Trial Judge Did not Consider Alternate Explanations
[66] In addition, at no time did the trial judge search for alternate explanations as required by Bradshaw. The existence of an alternative explanation serves to reduce the likelihood that a hearsay statement is true. This diminishment of probative value is similar in kind to that in the context of a finding of guilt or innocence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at para. 30. Here, the potential alternate explanations were that the complainant was mistaken about what had happened, that the incident occurred on another night and, if so, that the perpetrator was another person. It was an error not to go through this process.
The Corroboration was Significantly Weaker than In Other Cases
[67] As a last comment, a comparison with the cases in which the Supreme Court has commented on the use of corroborative evidence in the hearsay context illustrates the borderline nature of the Crown’s application in this case. Such a comparative examination assists in appreciating and applying the high standard which has been set. The Bradshaw majority undertook a similar comparison at para. 51-55.
[68] In Khan, the young complainant’s hearsay statement was powerfully corroborated by the semen stain on the accused’s clothing. Furthermore, as Justice Charron pointed out in Khelawon at paragraph 67, the complainant’s statement was spontaneous and referred to sexual matters outside her ken and understanding. Nothing approaching the strength of the evidence in Khan was available in this case.
[69] In R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291, hearsay that her father had sexually assaulted the complainant was said to be corroborated by her bloody underpants. But this evidence was also consistent with her brother assaulting her. Because of the presence of this reasonable alternative, it was inadmissible.
[70] In F.U.J. the corroboration was in the form of a strikingly similar statement from another alleged victim. Collusion and tainting could be excluded. The only likely explanation for the similarity was that the hearsay statement was true.
[71] In R. v. Khelawon, bruises on the elderly and infirm 81-year-old complainant’s body were insufficient corroborative evidence as they could have been caused by a fall. That the complainant had said that the accused’s put his clothes in a bag and the clothes were found in a bag was inadequate as the complainant might have put them in the bag himself. The corroborative evidence was consistent with other hypotheses and did not show that the only likely explanation was the declarant's truthfulness (see paras. 107-108).
[72] In R. v. Larue, 2018 YKCA 9, [2018] Y.J. No. 45, aff’d 2019 SCC 25, the accomplice witness refused to testify. She had made statements in the course of a Mr. Big operation implicating herself and the Appellant Larue in the murder. Corroboration relied upon by the majority included Larue and the victim’s DNA on the baseball bat said to be the murder weapon. The hearsay was held to be admissible because of the strength of the corroboration, amongst other reasons.
[73] The corroboration in the present case does not approach the strength of the evidence seen in Khan or in Larue. It need not do so in order to be admissible at the threshold stage. Khan is probably a high-water mark. However, the corroborating evidence in this trial fell markedly short of the level of those cases. The trial judge erred in finding otherwise.
The Statements MADE Upon Seeing the Accused
[74] Without going through the full analysis and finally deciding the question, it is likely that the “that’s him” and “you are going to get it” statements made upon seeing the Appellant after returning to the home were admissible.
[75] The actuating event producing the statements here in issue was suddenly coming upon the Appellant in the lobby of the home. The statements made were immediate and spontaneous measured against this event. There was no time for concoction. The pressure and stress, key to the application of the exception, may well have been produced by seeing the Applicant: see Goode v. U.S., 730 F.Supp.2d 469 (Dist.Ct., 2010). In addition, there are good arguments to be made that this evidence is either not hearsay or that the dangers posed by it are minimal: Peter Sankoff, “Law of Witnesses and Evidence in Canada”, Prior Identification, § 14:25.
[76] Even if this evidence was admissible, without the main hearsay statements, they were incapable on their own of supporting the trial judge’s guilty verdict. They identified the Appellant but did not relate what acts he had allegedly committed against the complainant.
CONCLUSION
[77] This hearsay application by the Crown was a challenging one. The complainant declarant was mentally disabled and severely limited in her mental and communication skills. The video interview documents the frailty of her evidence and the need for additional assurances that her evidence was reliable and could reasonably support a criminal conviction. The trial judge did not reference the current leading authorities on the principled exception to the hearsay rule, instead reaching 30 years back to the Khan decision for assistance. There was a superficial similarity on the evidence here to that case but ultimately the relative spontaneousness of that statement and the very strong corroboration fundamentally distinguishes that decision from this one.
[78] The trial judge misconstrued the hearsay dangers as encompassing only credibility when reliability was in fact the dominant concern. Several items of corroboration relied upon by the trial judge were questionable and required closer examination in his reasons. The trial judge did not ask whether further cross-examination of the complainant, if it had been possible, would likely bear fruit. The trial judge did not ask what other explanations there might be for the statements.
[79] These errors, taken cumulatively, undermine the validity of the trial judge’s decision to admit the statements. The decision cannot stand. I was not asked to determine the admissibility of the hearsay from the appellate vantage point. There are myriad factual issues that a trial judge would be in a preferable position to determine.
[80] It may well be an uphill battle on a new trial for a trial judge to admit the hearsay in this case. But it is not inconceivable. The lie to Ms. D. about being in L.’s room was important corroboration. The trial judge was not wrong to consider it. The problem is that he substantially misconstrued and overvalued other evidence he found was corroborative. And there were other errors in his voir dire reasons on the admissibility of the hearsay.
[81] In light of the seriousness of the case, and the extreme vulnerability of this alleged victim and other similarly situated victims, there is a strong public interest in ordering a new trial on the one count of sexual assault.
[82] The appeal is allowed, the sexual assault conviction is set aside, and a new trial is ordered. With respect to the sentence appeal, the conviction upon which the sentence rests having been vacated, the sentence is also vacated. The Appellant’s appeal against sentence is not reached.
[83] The Appellant is ordered to attend in the Ontario Court of Justice, Courtroom M15 at 9:00 a.m. on October 20, 2022 or upon such other date as may be agreed by counsel.
D.E HARRIS J.
Released: October 3, 2022
COURT FILE NO.: CR-21-00000009-00AP
DATE: 2022 10 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Appellant
- and –
MIKAIL ADEKUNLE
Respondent
APPEAL JUDGMENT
D.E HARRIS J.
Released: October 3, 2022
[^1]: The sexual exploitation acquittal was in error. The section number included in the count charging sexual exploitation mistakenly referred to the counselling version of the offence, Section 153.1 of the Code. However, the wording of the count itself correctly followed the main offence language as found in Section 153(1). In this situation, the wrong section number did not alter the allegation in the information. It was surplusage: R. v. J.D. Irving Ltd. 1975 1506 (NB CA), 1975 CarswellNB 172, 10 A.P.R. 108, 12 N.B.R. (2d) 108, 28 C.C.C. (2d) 242 (N.B.C.A.) at para. 12; R. v. Abitibi Price Inc.1995 9870 (NL CA), 1995 CarswellNfld 120, 130 Nfld. & P.E.I.R. 155, 17 C.E.L.R. (N.S.) 75, 27 W.C.B. (2d) 408, 405 A.P.R. 155 (Nfld.C.A.) at para. 11. The trial judge erred in finding otherwise and acquitting the Appellant for this reason.