COURT FILE NO.: CR-21-00695

DATE: 20221026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

M.A.A.

R. Mullins, for the Crown (Applicant)

T. Khan, for the Accused (Respondent)

HEARD: September 29, 2022

NOTE: Information contained in this decision is subject to publication restrictions. Any information that could reveal the identity of the complainant herein shall not be published in any document or broadcast or transmitted in any way at any time.

RULING ON APPLICATION TO ADMIT HEARSAY EVIDENCE

PETERSEN J.

INTRODUCTION

Overview

[1] This Application tests the limits of the principled hearsay exception that allows the Crown, in exceptional circumstances, to lead evidence of out-of-court statements made by a complainant at a criminal trial without having the complainant present in court and available for cross-examination by the Defence. It requires the court to take a hard look at the vulnerability of child witnesses in sexual abuse cases and the justice system’s potentially traumatizing impact on them. Ultimately, it requires the Court to ensure the accused’s right to make full answer and defence while simultaneously safeguarding the psychological integrity of a vulnerable child complainant.

[2] The accused, M.A.A., is charged with three counts of sexual assault under s.271 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (“the Criminal Code”), and three counts of sexual interference under s.151 of the Code. A jury trial is scheduled for January 2023. The indictment alleges that the offences occurred between May 2012 and May 2017. The complainant, whom I will refer to as “N.M.,” was between 4 and 9 years old at the time. N.M. is now 14 years old. N.M.’s preferred pronouns are “they” and “them.”

[3] M.A.A. was N.M.’s stepfather for several years and is the biological father of three of N.M.’s younger half-siblings. N.M. also has one full sibling with whom they share the same biological father. However, N.M. refers to M.A.A. as their “dad.” The charges in the indictment span a period from when N.M.’s mother was cohabiting with M.A.A. to after they separated. N.M. continued to have contact with M.A.A. after the separation and visited him at the home where he was residing with their three half-siblings. N.M.’s mom and M.A.A. were separated at the time of N.M.’s disclosure of the alleged sexual offences to a teacher approximately four years ago.

[4] The hearsay evidence at issue consists of the following:

(a) The video recording of N.M.’s statement to the police on December 22, 2018.

(b) The video recording of N.M.’s statement to a social worker on January 23, 2019.

(c) The audio recording of N.M.’s testimony at the preliminary inquiry in this matter on February 22 and 23, 2021.

[5] The Crown has also produced transcripts of these three recordings. It does not seek to adduce the transcripts as evidence but proposes that they be given to the jury as aids.

[6] I note that the two video-recorded statements would likely be admissible under s. 715.1 of the Criminal Code if N.M. were to adopt the contents of the recordings at trial. Section 715.1 allows a trial judge to admit into evidence the video-recorded out-of-court statement of a child witness if the recording was made within a reasonable time after the alleged offence, and if the witness, while testifying, adopts the contents of the video recording. That is precisely what occurred at the preliminary inquiry in this case. The videos were played, N.M. adopted the recorded statements with a couple minor qualifications, and the videos were then admitted by the presiding judge as part of N.M.’s evidence-in-chief.

[7] The admissibility of the same videos at trial has become a contentious issue because the Crown now seeks to adduce them in the absence of the complainant testifying at trial. The other major contentious issue in the Application is the admissibility of the audio recording of the complainant’s testimony at the preliminary inquiry, which the Crown seeks to adduce as a substitute for the complainant’s testimony at trial.

[8] The accused objects to the Application on several grounds. He argues that the Crown has not satisfied its burden of establishing that the disputed evidence meets the test for the principled exception to the hearsay exclusion rule. He also contends that admitting the hearsay evidence without an opportunity to cross-examine the complainant in front of the jury deprives him of his right to make full answer and defence, and violates his constitutional right to a fair trial, contrary to ss.7 and 11(d) of the Canadian Charter of Rights and Freedoms (“the Charter”).

[9] For the reasons set out below, I have concluded that the complainant’s hearsay statements should be admitted into evidence for the truth of their contents, without requiring the complainant to attend for cross-examination at the trial. I have further concluded that, in the exceptional circumstances of this case, admitting the disputed evidence does not violate the accused’s Charter rights.

Analytical Framework

[10] There is a well-established three-part test for determining the admissibility of evidence. First, it must be relevant. Second, it must not be subject to an exclusionary rule. Third, its potentially prejudicial effect must not outweigh its probative value.

[11] In this case, the parties agree that the disputed evidence is relevant. They also agree that it is subject to the common law exclusionary rule that hearsay is presumptively inadmissible. The Crown argues, however, that it falls under the principled exception to the hearsay rule as enunciated by the Supreme Court of Canada in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531.

[12] Hearsay is presumptively inadmissible because, in the absence of cross-examination of the declarant, it is often difficult for the trier of fact to assess both the veracity and accuracy of the out-of-court statement. When a complainant’s hearsay evidence is led by the Crown in a criminal case, the accused is deprived of a crucial tool with which to challenge the credibility of the complainant through contemporaneous cross-examination. It can frustrate the accused’s ability to make full answer and defence. The admission of hearsay evidence can threaten the integrity of a trial’s truth-seeking function and undermine trial fairness.

[13] Hearsay may, however, be admitted into evidence under the principled exception to the exclusionary rule if it meets the criteria of necessity and reliability: Khan, at paras. 31 and 32; R. v. Bradshaw, 2017 SCC 35, at para. 1. As the Supreme Court of Canada explained in R. v. Khelawon, 2006 SCC 57, at para. 49:

The criterion of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.

[14] Even if hearsay evidence is found to be both necessary and reliable, the court may exclude it if its prejudicial effect outweighs its probative value: Khelawon, at para. 49. This residual judicial discretion has long existed at common law but was constitutionalized, in criminal cases, by the right to a fair trial guaranteed under s.7 and s.11(d) of the Charter: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043, at para. 85; Khelawon, at para. 3. Consequently, where the Crown seeks to adduce hearsay evidence, the court must consider whether admitting the evidence would violate the accused’s constitutionally protected rights.

Issues

[15] The first issue for me to determine in this Application is whether the Crown has established, on a balance of probabilities, that the disputed hearsay evidence satisfies the twin criteria of necessity and reliability. The evidence is inadmissible if either criterion is not met.

[16] If I conclude that the evidence is both necessary and reliable, it falls under the principled exception to hearsay. I must then weigh the probative value of the evidence against its prejudicial effect and decide whether to exercise my judicial discretion to exclude the evidence. This weighing necessarily implicates considering the accused’s constitutionally protected rights. The evidence cannot be admitted if it would result in a breach of the accused’s Charter rights.

ANALYSIS

Reasonable Necessity

[17] The criterion of necessity does not have the meaning of “necessary to the prosecution’s case”: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at para. 36. Rather, it is founded on the need to get at the truth. At times, hearsay evidence is necessary “to enable all relevant and reliable information to be placed before the court, so justice may be done”: R. v. F.(W.J.), 1999 CanLII 667 (SCC), [1999] 3 S.C.R. 569, at para. 31.

[18] Necessity for these purposes must be interpreted as "reasonably necessary": Khan, at para. 31. The Supreme Court of Canada has ruled that necessity means a situation “where the direct evidence of the witness is unavailable despite reasonable efforts to obtain it”: F.(W.J.), at para. 35. Such a situation may arise because the declarant is unavailable to testify at trial or because the circumstances are such that the declarant’s testimony is unavailable: Khelawon, at para. 78; R. v. Parrott, 2001 SCC 3, at para. 64. The list of potential circumstances that satisfy the necessity criterion is not closed. As the Supreme Court of Canada explained in F.(W.J.), at para. 36:

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

[19] In the Application before me, the Crown’s claim of necessity rests on anticipated traumatic consequences of forcing N.M. to testify. I must assess this claim based on the specific evidence and facts in the case. However, some broader social context is required to fully appreciate the issue.

Child Complainants in Sex Abuse Cases

[20] For most lay witnesses, courtrooms are intimidating places governed by unfamiliar, impenetrable protocols. For complainants in criminal cases, court appearances may be especially daunting because their credibility is often a central issue in the trial. Having one’s recollection of past events dissected and scrutinized, and one’s honesty and integrity impugned, is never a pleasant experience. Complainants are therefore often apprehensive about testifying.

[21] Complainants in sexual assault trials have additional reasons to feel anxious about testifying because they know they will be required to discuss, in a public setting in front of strangers, the details of alleged incidents of profoundly intimate violations. They also know that private and sometimes embarrassing or shameful details of their personal lives may become issues canvassed at trial.

[22] In addition, rape myths, sexism, and discredited stereotypes about sexual assault and sexual assault survivors have plagued the criminal justice system for decades: R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, at paras. 28, 29, and 96; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per L’Heureux-Dubé J. at paras. 194-195 (dissenting, but not on this point) and per Cory J. at para. 36; R. v. L.(D.O.), 1993 CanLII 46 (SCC), [1993] 4 SCR 419 at para. 30; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, at paras. 82-103; R. v. Shearing, 2002 SCC 58, [2002] 3 SCR 33, at paras. 76-77; R. v. A.R.J.D., 2018 SCC 6, at para. 2; R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579, at paras. 1, 55, and 56. This systemic problem has led many survivors of sexual violence to fear being re-victimized by the criminal justice system if they report their assault to the police and participate in the trial of their accused assailant: Osolin, at para. 202 (per L’Heureux-Dubé J. dissenting, but not on this point).

[23] Despite the enactment of legislative reforms aimed at safeguarding the privacy and dignity of complainants and promoting society’s interest in the reporting of sexual offences, many sexual assault victims remain reluctant to engage with the criminal justice process: Osolin, at para. 193 (per L’Heureux-Dubé dissenting but not on this point); L.(D.O.), at para. 31; R. v. J.J., 2022 SCC 28, at paras. 5-9. As the Supreme Court of Canada stated recently in paras. 1-2 of its majority judgment in J.J.:

The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system. Historically, trials provided few if any protections for complainants. More often than not, they could expect to have the minutiae of their lives and character unjustifiably scrutinized in an attempt to intimidate and embarrass them, and call their credibility into question — all of which jeopardized the truth-seeking function of the trial. It also undermined the dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours of a public trial.

Over the past decades, Parliament has made a number of changes to trial procedure, attempting to balance the accused’s right to a fair trial; the complainant’s dignity, equality, and privacy; and the public’s interest in the search for truth. This effort is ongoing, but statistics and well-documented complainant accounts continue to paint a bleak picture. Most victims of sexual offences do not report such crimes; and for those that do, only a fraction of reported offences result in a completed prosecution. More needs to be done.

[24] Victims who participate in the criminal justice process often suffer negative consequences as a result. In her concurring judgment in L.(D.O.) at para. 69, L’Heureux-Dubé J. remarked:

Whether the complainant is a young child or an adult woman, all victims of sexual abuse who are required to relive, though detailed testimony, the horrendous events through which they have suffered, experience doubly what is already significant pain. There is a need for greater recognition of the severe effects that all witnesses, regardless of age, suffer in such instances.

[25] In L.(D.O.), the Supreme Court explicitly recognized the special vulnerability of child witnesses to system-induced trauma based on the dominance and power that adults exercise over them: L.(D.O.), at paras. 69 and 1. The “double victimization” of young victims in child sexual abuse cases and the “secondary trauma” produced by their mistreatment in the criminal justice system were discussed at length in the Court’s reasons, in the context of upholding the constitutional validity of s. 715.1 of the Criminal Code: L.(D.O.), at paras. 32 and 36. In her concurring reasons for judgment, L’Heureux-Dubé J. observed:

[C]hild witnesses … are required to provide detailed testimony about confusing, embarrassing and frightful incidents of abuse in an intimidating, confrontational and often hostile courtroom atmosphere. (para. 36)

Children have suffered and continue to suffer immense hardship from the court process. (para. 37)

If a child is compelled to be physically present in court, the psychological cost can be quite severe. (para. 40)

[26] In her concluding remarks in L.(D.O.), L’Heureux-Dubé J. stated (at para. 72):

[Section 715.1] applies to a class of crimes where the complainants are young and in which the subject matter of the crime requires that the child provide intimate and embarrassing details about events that occurred – the unwanted interference with the child’s body. The children involved are generally scared, helpless and in emotional turmoil… They feel betrayed by someone whom they should have been able to trust and are often revictimized by a criminal justice system that places them in the spotlight… If the criminal justice system is to effectively perform its role in deterring and punished child sexual abuse, it is vital that the law provide a workable, decent and dignified means for the victim to tell her or his story to the court. In my opinion, s.715.1 is a modest legislative initiative working toward this end.

[27] The enactment of s. 715.1 of the Criminal Code is one of several initiatives undertaken by Parliament “designed to accommodate the needs and to safeguard the interests of young victims of various forms of sexual abuse”: L.(D.O.), at para. 1. Over the years, laws have been amended to allow children to testify after promising to tell the truth instead of requiring them to swear an oath or make an affirmation (Canada Evidence Act, R.S.C. 1985, c.C-5, s. 16.1) and supportive aids have been made available to child witnesses during criminal trials, such as the right to testify in a closed courtroom, from behind a screen, or from a separate room via a closed-circuit television (Criminal Code ss. 486(1), 486(2)(b) and 486.2(1)); the right not to be cross-examined by a self-represented accused (Criminal Code, s.486.3(1)), and the right to be accompanied by a support person (Criminal Code, s.486.1(1)). The constitutionality of these testimonial supports has been upheld by the courts: see, for example, R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475; R. v. Persaud, [2007] O.J. No. 432 (Ont. Sup. Ct.); R. v. S.(J.), 2008 BCCA 401, aff’d R. v. S.(J.), 2010 SCC 1, at para. 1; and R. v. C.N.H., [2006] B.C.J. No. 782, 2006 BCPC 119.

[28] These measures are not a panacea for the problem of child witnesses suffering system-induced emotional and psychological harm. In F.(W.J.) at paras. 14-16, L’Heureux-Dubé J. discussed the Ontario Law Reform Commission’s Report on Child Witnesses, which found that furnishing evidence in court can be extremely traumatizing for a child even if they are not required to face their alleged abuser in the courtroom. Allowing a child complainant to testify from a separate room via a closed-circuit television is an important step toward accommodating child witnesses but separating a young complainant from their alleged abuser will not always eliminate the risk of trauma to the child.

[29] Despite measures designed to facilitate the participation of child complainants in trials, children may still encounter greater difficulties giving their evidence than adults. As McLachlin J. explained in F.(W.J.), at para. 43:

The entire court process may be alien and frightening to children, no matter how well briefed. The child finds him- or herself in a strange world, surrounded by stern and imposing adult strangers, demanding on pain of perhaps incompletely understood consequences that the child reveal what he or she knows. Sexual assault cases bring yet another anxiety. The child is asked to reveal to these imposing and intimidating strangers the most private details of what was done to him or her. From infancy, the child may have been trained not to discuss such things with strangers. He or she has acquired a sense of privacy, and perhaps a sense of shame and guilt about such matters. The child finds him- or herself conflicted, being asked to tell strangers that which he or she has been trained not to tell strangers.

[30] McLachlin J. further noted at para. 42 in F.(W.J.):

The Court’s decision in Khan to permit a child’s out-of-court statement to be received where necessity and reliability are present was in keeping with the increasing sensitivity of the justice system to the special problems children may face in giving their evidence and the need to get children’s evidence before the court if justice is to be done.

[31] In cases where the Crown contends that a child complainant’s hearsay evidence is a necessary substitute for their testimony at trial because of a risk they will suffer psychological trauma if required to testify, the court’s assessment of the reasonable necessity of the evidence must account of the unique vulnerability of child witnesses and the child-sensitivity policies that have emerged in the law: F.(W.J.), at para. 44. I have endeavoured to do so in this case.

Real Possibility of Psychological Trauma

[32] A complainant (of any age) cannot be excused from testifying just because they are generally fearful of the process. Fear, dread, apprehension, discomfort, and even distress do not translate into the witness’s testimony being unavailable such that their out-of-court hearsay statements are reasonably necessary: F.(W.J.), at para. 44; R. v. Robinson, 2004 CanLII 31916 (ON CA) at para. 41; R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829 (S.C.C.) at para. 28. The Crown is not, however, required to prove that severe trauma is likely to ensue: Robinson at para. 41; Rockey at para. 28. Nor is the Crown required to prove that psychological trauma will be a certain outcome if the child testifies: Robinson, at para. 41. The Court of Appeal for Ontario has ruled that, to demonstrate the reasonable necessity of the disputed hearsay evidence, the Crown must establish that there is “a real possibility of psychological trauma” to the complainant if they testify: Robinson, at para. 41.

[33] I understand “trauma” (in the psychological sense) to refer to a lasting and debilitating emotional response to a deeply disturbing event. The response overwhelms an individual’s ability to cope and function. It can manifest itself in a variety of ways, including persistent feelings of helplessness, impairment of a person’s ability to regulate their emotions, or diminishment of their ability to feel a full range of emotions. I do not intend for this to be an exhaustive or clinical definition of trauma, but rather an explanation of my understanding of how the word is used in the appellate jurisprudence, and how it can be differentiated from mere discomfort, apprehension, or temporary distress. Trauma has a lasting negative impact on a person’s mental well-being.

[34] Extrinsic evidence is not required to prove necessity where it is self-evident to the trial judge, from observing the young complainant, that they are unable to testify or to continue testifying because they have become emotionally overwhelmed: F.(W.J.), at paras. 37-41 and 45. For example, there are cases in which child complainants began testifying at the trial, but later froze and became completely unresponsive to any questions: R. v. C.N. (1997), 1997 CanLII 24615 (AB CJ), 195 A.R. 387; F.(W.J.), at paras. 20-24 and 47-49; R. v. T.H., 2017 ONCA 485, at paras. 20-22. Although the trial judge must have a foundation for ruling that necessity is established, 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”: F.(W.J.), at para. 41.

Crown’s Evidence in Support of Necessity

[35] In this case, much of the evidence produced by the Crown in support of its hearsay Application is itself hearsay evidence. The Crown produced the transcript of N.M.’s testimony at the preliminary inquiry, the transcripts of their video-recorded interviews by the police and by the social worker, and an excerpt of the transcript of N.M.’s mother’s statement to the police. The Crown seeks to rely on some of the statements contained in these transcripts for the truth of their content, namely statements about (i) N.M.’s history of mental health issues; (ii) how the initial disclosure of N.M.’s allegations came about; and (iii) the way N.M.’s subsequent interviews were conducted by the police and the social worker. The Defence did not object to the admissibility of this hearsay evidence for the purpose of the voir dire.

[36] The Crown also adduced an affidavit sworn by Pamela O’Hara, a child witness specialist at EveryMind Mental Health Services, who was assigned to work with N.M. Ms. O’Hara deposed to facts within her personal knowledge, but also relayed some text messages and other communications that she had with N.M. N.M.’s out-of-court statements to Ms. O’Hara are tendered by the Crown for the truth of their content. The Defence took no issue with the reliability or necessity of Ms. O’Hara’s hearsay evidence and did not argue that it should be excluded from the Court’s consideration in the context of this Application. I have admitted the evidence based on the principled exception to the hearsay exclusion rule.

[37] The Defence chose not to cross-examine Ms. O’Hara at the voir dire. The content of her affidavit is therefore uncontested. I have no reason to doubt the veracity of Ms. O’Hara’s evidence and I accept it as credible.

[38] The evidence establishes that the complainant, N.M., has consistently experienced emotional difficulty discussing what they claim M.A.A. did to them. Their allegations first came to light in the fall of 2018 after they drew a penis on the back of a seat in a school bus on the way home from a field trip. They were 10 years old at that time. Their teacher, Miss Townsend, spoke to them privately to ascertain what had prompted them to make the drawing. According to their subsequent account of this meeting in the interview with the social worker, they talked about feeling stressed out at home and having “some issues about thinking bad thoughts about myself like suicide and all that.” According to N.M.’s testimony during their cross-examination at the preliminary inquiry, Ms. Townsend asked them a series of questions and they answered affirmatively when asked directly whether they had experienced sexual assault. They gave no details of the alleged assault at that time.

[39] N.M. was told that their mother would be advised of the disclosure. In their subsequent interview with the police, N.M. recalled that they were in a van with their mother on their way home from school that day when their mother got the call from the school. They said they covered their face because they were afraid of what their mother’s reaction would be. They stated, “I think she heard the part when I told Miss Townsend what happened with my dad. And we got out of the van. We hugged it out. We talked about it a little bit. And then we went on with our day.”

[40] N.M. told the police officer that they were “really happy to get it out” when they spoke to their teacher. They explained that they had kept it a secret from their mother because they knew it would affect her a lot and they were worried that she would be disappointed in them. They said, “But I am really thankful that I told my teacher, and my mom found out.” In the subsequent interview with the social worker, they said “I should have told my mom more sooner than this… I wish I had told her way sooner…. It was stuck in my head until I actually let it out.”

[41] Despite the relief they expressed at having made the disclosure, N.M. was initially unable to talk about any particulars of the alleged sexual abuse. In the police interview, they provided numerous details incidental to the alleged offences, demonstrating an ability to recall and recount historical events with substantial precision. For example, they gave specific information about how old they were, where the alleged offences took place, who else was present in the residences when the offences allegedly occurred, and what transpired immediately before and after the offences. However, they were unable to speak about particulars of the allegations other than to state that “it happened” and that M.A.A. “did what he did.” When asked, “what did he do?”, they responded, “I feel uncomfortable saying.” The officer conducting the interview took steps to try to put them at ease and make them feel safe to discuss what happened, but they just kept repeating that they did not feel they could “tell detail of what he did, just what happened around.”

[42] At intervals during the police interview, N.M. became emotional, prompting the officer to offer them tissues and check in with them to make sure they were okay. The interview ended after the officer asked a final time, “And what did he do?”, to which N.M. replied, “I don’t want to talk about this anymore. I want to go home and see my two brothers.” The officer tried to continue to engage them in conversation, but N.M. repeated that they wanted to go home and asked to be brought to their mother.

[43] The meeting with a social worker was scheduled a month later to try to obtain particulars of the alleged incidents from N.M. They initially continued to make only vague allegations about M.A.A.’s conduct (e.g., “he did things to me that I didn’t like,” “it was inappropriate,” “it was not good at all,” “he made me do something that I didn’t want to do,” “he did it again, but not the same thing”). They eventually particularized the allegations but remained too uncomfortable to use explicit language. They referred to M.A.A.’s “thing” throughout, stating that they preferred that word to the expression “private part.” They acknowledged knowing another word for “private” but stated that they really did not want to say it. The social worker gave them an anatomical sketch of a boy and asked them to circle his “thing,” which they did, identifying the boy’s penis.

[44] The complainant’s obvious discomfort during these interviews is relevant to my analysis of the necessity criterion in this case but is insufficient evidence to establish a real possibility that testifying at trial would cause N.M. psychological trauma. However, as discussed below, the Crown has adduced additional evidence that satisfies this burden of proof.

[45] Notably, the Application Record establishes that N.M. has a history of serious mental health issues. Their statement to the police and their mother’s statement to the police both mention that N.M. had been hospitalized earlier that year (2018) for suicidal ideation. This evidence is not contested by the accused, and I accept it as credible. N.M. was nine years old at the time of their hospitalization. Although this mental health crisis occurred more than four years ago, it remains a significant antecedent in the complainant’s personal mental health history. They clearly have emotional fragility and psychological vulnerability about which the court should not be cavalier.

[46] Furthermore, the evidence demonstrates that the complainant has suffered emotional and psychological difficulties engaging with the criminal justice process at various steps in this proceeding. Moreover, those challenges have intensified and have become emotionally overwhelming for N.M. as the trial date approaches.

[47] In her affidavit, Ms. O’Hara describes her personal interactions with N.M. She recalls contacting N.M. and their mother in early January 2021 to try to schedule a preparation meeting for the upcoming preliminary inquiry, which was set for February 22 and 23, 2021. She made repeated attempts to reach the complainant and their mother over the course of several weeks, through email, text messages to different phone numbers, and by phone calls with voicemail messages, but N.M. and their mother did not respond.

[48] Despite having ignored Ms. O’Hara’s communications, N.M. attended for the preliminary inquiry. On consent, arrangements were made for them to testify through a closed-circuit television from a separate witness room where they were accompanied by Ms. O’Hara as a support person. During their examination-in-chief, the video recordings of their interviews with the police and social worker were played in court. As noted earlier in this ruling, the statements made by N.M. in the video recordings were admitted for the truth of their contents by the presiding judge pursuant to s.715.1(1) of the Criminal Code. N.M. was then cross-examined at length by Defence counsel about their prior statements to the police and the social worker, and about their allegations of sexual abuse more generally.

[49] After the preliminary hearing, M.A.A.’s trial was scheduled to begin October 25, 2021. In preparation for the trial, N.M. attended a meeting with Ms. O’Hara on September 30, 2021. Their grandmother accompanied them to the meeting. The meeting had to be cut short because N.M. became overwhelmed and could not review their video statements and transcript from the preliminary inquiry. At N.M.’s request, Ms. O’Hara adjourned the meeting and scheduled a series of shorter on-line meetings in the coming weeks, but N.M. cancelled the next meeting. The remaining meetings were then cancelled by Ms. O’Hara because the trial was adjourned to September 26, 2022.

[50] Ms. O’Hara deposed that she began to make efforts to contact the complainant again on August 8, 2022, in preparation for the trial. After a couple weeks of reaching out through various means of communication, she finally heard back from N.M. by text message on August 22, 2022. N.M. advised her that they “were not coping well” as they were “experiencing mental health challenges.” N.M. said they were “feeling overwhelmed” with the trial date approaching and did not think they could handle attending court. N.M. refused to schedule a date and time to meet for trial preparation.

[51] Ms. O’Hara asked N.M. to check in with her by the end of that week. She followed up by leaving a voicemail message and a text message requesting to schedule a check-in meeting. N.M. did not reply to her. Between August 22, 2022, and September 12, 2022, Ms. O’Hara left multiple text messages and voicemail messages for N.M. and their mother. She received no response.

[52] Finally, on September 12, 2022, eleven days prior to the trial’s scheduled commencement, Ms. O’Hara received a series of text messages from N.M., who apologized for being uncommunicative and for their delayed response. Among other things, they wrote:

Im not in the right place mentally to go through with it this time. Maybe I was strong enough last time, but I really cant this time. Last year, I was ready. I thought it was going to be over and done with in 2021 but it's been way too long.

I don't want to meet, I don't want to go to court, I don't want to go to Brampton. I don't want to be around anyone there again. No offence Pam:|. Though you helped me out last year, I'm not so sure this year.

I don’t know what can be done, but It’s too upsetting to go through all over again. Overwhelming, stressing. Just thinking about court. It’s been affecting me for months, ruined some my summer. Early July I noticed it was coming up again. I tried not to let it get to me but, it’s not so easy :(. I haven’t been feeling right since I started thinking about it again and I know for certain now that I can not do this again.

[53] Ms. O’Hara immediately forwarded the complainant’s text messages to the Crown, seeking direction on how to proceed. On September 19, 2022, Ms. O’Hara sent a message to N.M. reminding them that supports would be available to them during the trial. She offered dates to meet with N.M. to discuss it further, but N.M. did not respond. The trial was subsequently adjourned to January 2023, and the Crown brought the within Application.

Analysis

[54] The accused argues that the Crown has not established the necessity of calling the disputed hearsay evidence as a substitute for the complainant’s testimony at trial. Defence counsel submits that N.M. was able to cope with the demands of testifying during the preliminary inquiry, and they are older now and presumably more mature, so they should be able to handle testifying at trial without risk of being traumatized by the experience.

[55] I cannot reasonably infer that N.M. is less vulnerable to being traumatized relative to when they testified at the preliminary inquiry simply because they are now 18 months older. Other equally probable inferences could be drawn based on the passage of time, including that N.M. might be more vulnerable to psychological trauma at 14 years of age. Puberty could be a particularly challenging time for a gender-non-conforming child to discuss with strangers alleged incidents of unwanted sexual interference with their body. Given these equally probable opposing inferences, I draw no conclusion about the impact of the passage of time on N.M.’s current ability to cope emotionally and psychologically with the demands of testifying.

[56] I am not persuaded by the Defence argument that N.M.’s psychological resilience has been demonstrated by their ability to testify at the preliminary inquiry. N.M.’s messages to Ms. O’Hara provide a compelling explanation for why they cannot now cope with testifying, despite having been able to do it 18 months ago. First, they explain that they were expecting the trial to proceed in the fall of 2021 and were not mentally prepared for the adjournment or for the criminal justice process to be delayed for so long. Their psychological resilience has waned. There is no basis to assume that it gets easier over time.

[57] Second, N.M. alludes to the fact that their current inability to cope with testifying is, in part, attributable to having to “go through it all over again.” The potentially traumatic consequences of testifying may be compounded by repeating that triggering experience. A vulnerable complainant like N.M. may have the emotional fortitude to testify once, but not twice. In L.(D.O.) at para. 36, L’Heureux-Dubé J. explained that one of the purposes of s.715.1 of the Criminal Code is to remove the need for child complainants to repeat their story many times: “It is often the repetition of the story that results in the infliction of trauma and stress upon a child, who is made to feel that she is not being believed and that her experiences are not being validated.”

[58] N.M. is obviously aware of the supportive arrangements that could be made to mitigate the challenges of testifying. They had the benefit of those arrangements at the preliminary inquiry. They communicated to Ms. O’Hara that they are not confident the available supports will be adequate this time. They further expressed unequivocally that they cannot handle testifying again.

[59] The complainant is under subpoena and could be forced to attend court. I am not prepared to take that step. On the evidence before me, forcing N.M. to testify carries a real possibility of inflicting emotional trauma and psychological harm that goes beyond mere discomfort or even distress. They have consistently struggled with the demands of the criminal justice process over the past two years (i.e., ignoring Ms. O’Hara’s efforts to schedule a preparation meeting prior to the preliminary inquiry, prematurely terminating the trial preparation meeting in September 2021, cancelling a subsequent trial preparation meeting in October 2021, and ultimately refusing to schedule another meeting in the summer of 2022). The uncontested evidence shows that they have been experiencing negative mental health consequences for the past three months, caused by the mere thought of having to testify again at the trial. They have become so anxious about the impending court appearance that they have had trouble even just communicating with the child witness specialist, whose role is to provide them with support. They do not need to be summoned to court for me to witness their trauma first-hand before I can find that their hearsay evidence is reasonably necessary.

[60] When a claim of necessity is advanced by the Crown on the basis that a child complainant lacks the testimonial competence to give evidence about the alleged offence, the direction from the Supreme Court of Canada is well established: the complainant’s testimony should generally not be pre-empted by hearsay evidence unless the trial judge has first had an opportunity to see and hear the potential witness and form their own opinion as to their capacity. This directive does not, however, apply where there is a claim that the child would suffer trauma by giving evidence: Parrott, at paras. 72, 77 and 82. Although there are cases in which a child complainant enters the witness box and breaks down emotionally during their testimony, and the Crown subsequently seeks to adduce hearsay evidence of their prior out-of-court statements, that is not a prerequisite to finding necessity based on potential trauma to the witness. Courts are not required to wait for actual trauma to be experienced by a child witness before concluding that their hearsay evidence is reasonably necessary: Rockey, at para. 28, per McLachlin J.

[61] One of the reasons this case tests the limits of the principled hearsay exception is that the Crown has not called any expert evidence to support its position. Where the Crown’s necessity argument is based on the contention that a child complainant will be traumatized if called to testify, the Crown “almost inevitably relies on an assessment of the child prepared by a qualified expert who has had an opportunity to speak with and evaluate the child”: Robinson, at para. 43; Rockey, at paras. 5 and 22; R. v. Olsen (1999), 1999 CanLII 1541 (ON CA), 131 C.C.C. (3d) 355 (Ont. C.A.); R. v. R.R., 2001 CanLII 27934 (ON CA), 2001 CarswellOnt 3856 (ON CA), aff’d by the SCC in R. v. R.R., 2003 SCC 4, [2003] 1 SCR 37.

[62] However, expert evidence is not required in every case where the Crown relies on the risk of psychological trauma to argue that the hearsay evidence of a child complainant is necessary. Indeed, as discussed above, no evidence whatsoever is required where necessity is self-evident because of what transpires in the courtroom. If the child takes the witness stand, psychological harm may be obvious to the trial judge based on the child’s demeanour and responses (or non-responses) to questions. But the Court of Appeal for Ontario has cautioned that “it will be a rare case… where the Crown can establish necessity based on the potential of psychological trauma without a proper assessment of the child by a qualified expert, unless the trial judge has had the opportunity to see the child’s reaction to questioning in the courtroom setting”: Robinson, at para. 45; R. v. Wills, 2016 ONCA 965, at para. 20.

[63] This is one of those rare cases. N.M. has a personal history of prior suicidal ideation and mental health instability from as early as age 9. Although they were able to cope with the challenges of testifying at the preliminary inquiry 18 months ago, they have not been able to engage meaningfully with the criminal justice process since then. They prematurely terminated the first trial preparation meeting with Ms. O’Hara because they were feeling emotionally overwhelmed. They cancelled the next meeting and then refused to schedule any further meetings. I find that their avoidant behaviour is a self-protective coping mechanism. I do not require expert opinion evidence to arrive at that self-evident conclusion.

[64] In N.M.’s communications with Ms. O’Hara, they have articulated the negative impact that just thinking about testifying has had on their mental health these past three months. They withdrew from the court process not simply because they no longer want to participate. Rather, they have stated emphatically that they cannot testify again. The fact that they could not even complete a preparation meeting with Ms. O’Hara, in a supportive private setting, makes it likely that they would not be able to endure cross-examination in a confrontational setting in front of a jury without experiencing trauma.

[65] In the specific circumstances of this case, although I have not personally observed N.M. emotionally break down in court, I do not require an expert witness’s opinion to recognize that testifying about the alleged sexual abuse, which N.M. has compartmentalized and tried to push to the back of their mind for a long time, risks inflicting psychological harm on them.

Conclusion re: Necessity

[66] I am persuaded by the evidence in the record that there is no reasonable prospect of obtaining a meaningful account of the events from N.M. by their direct testimony at trial without subjecting them to a real possibility of psychological trauma. The disputed hearsay evidence satisfies the reasonable necessity criterion.

Threshold Reliability

[67] At this stage of the proceeding, it is not my role to evaluate the ultimate reliability of the complainant’s hearsay statements. That task falls to the trier of fact at trial, which will be a jury in this case. In determining whether the hearsay statements are admissible, I must assess their threshold reliability: Khelawon, at paras. 2, 3 and 50; Parrott, at paras. 68 and 70. The applicable question in assessing threshold reliability is whether the evidence is reliable enough to be considered by the trier of fact, not whether it should ultimately be believed: Hawkins, at para. 75.

[68] Threshold reliability is established when the hearsay evidence is sufficiently reliable to overcome the dangers arising from the difficulty of testing it without contemporaneous cross-examination of the declarant in court: Khelawon, at para. 49; Bradshaw, at para. 26. Those dangers include the possibility that the hearsay statement may have been inaccurately recorded, and that the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity: Khelawon, at para. 2; Bradshaw, at paras. 20-21; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 32.

[69] In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and evaluate whether they have been overcome by showing either procedural or substantive reliability: Khelawon, at paras. 4; Hawkins, at para. 75; Bradshaw, at para. 26. Procedural reliability is established when there are adequate substitutes for testing the evidence, given that the declarant has not stated the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination: Khelawon, at para. 63; Bradshaw, at para. 28. These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement: Khelawon, at para. 76; Hawkins, at para. 75. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination of the declarant, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial, is usually required: Bradshaw, at para. 28.

[70] Substantive reliability is established if the statement is shown to be inherently trustworthy. To determine its inherent trustworthiness, the trial judge can consider the circumstances in which it was made and any evidence that corroborates or conflicts with the statement: Khelawon, at paras. 4, 62 and 94-100; Bradshaw, at para. 30. Proof of substantive reliability sets a high standard, but it does not require that reliability be established with absolute certainty.

[71] Procedural reliability and substantive reliability can complement each other and work in tandem. However, great care must be taken to ensure that this combined approach does not lead to the admission of hearsay statements despite insufficient procedural safeguards and guarantees of inherent trustworthiness to overcome the hearsay dangers: Bradshaw, at para. 32.

Specific Dangers Associated with the Hearsay Evidence

[72] In this case, the Crown submits that the only potential dangers associated with the proposed hearsay evidence relate to the jury’s ability to test the complainant’s honesty and memory (due to the passage of time since the offences allegedly occurred). I disagree with this submission. Although identity is unlikely to be a contested issue at trial given the nature of the relationship between the complainant and the accused, N.M.’s young age when the first sexual assault is alleged to have occurred makes it likely that the jury will be required to assess their perception and narrative of the events. The absence of contemporaneous cross-examination of N.M. at trial will create challenges for the jury in completing these tasks. I agree with the Defence that the dangers associated with the hearsay evidence are, therefore, more extensive than the Crown suggests.

[73] However, I agree with the Crown that potential inaccuracy of the complainant’s out-of-court statements is not a danger associated with the hearsay evidence in this case. N.M.’s interviews by police and by the social worker were both video-recorded. Their testimony during the preliminary inquiry was audio-recorded. These recordings serve the purpose of preserving the evidence: L.(D.O.), at paras. 1 and 36. Verbatim transcripts of each of these recordings have been produced. There is no danger that words have been incorrectly attributed to the complainant in any of the out-of-court statements, or that the statements are incomplete or taken out of context.

Nature of the Allegations

[74] Before I review the indicia of procedural and substantive reliability that attach to the proposed hearsay evidence, I need to provide additional context by briefly summarizing the content of the out-of-court statements as they relate to the specific allegations made by the complainant against M.A.A.

[75] During their initial statement to the police in December 2018, N.M. identified a discrete incident that occurred “a while ago” when their family was living in the same apartment building as their maternal grandmother. They said they thought it happened when they were 6 years old because “it was a little while back.” They stated that it happened in the bathroom, after M.A.A. pulled them out of the shower one day. They referred to this incident as “the first time” the accused did something inappropriate to them.

[76] N.M. stated that “the next time” occurred where M.A.A. was then living with his mother in Brampton, on an occasion when they went there for a sleepover (their parents having separated). They said it happened on a mattress that they and their sister were sleeping on in the living room in the basement of the house. They recalled that M.A.A. laid down beside them on the mattress. They stated, “He did it again when I was trying to sleep. I think I tried to say stop, but I’m not sure he listened.” They thought they were 8 years old at the time. When asked by the officer how many times this happened to them, they responded, “I think it was only those two times unless there was another one, but I forget that.”

[77] During the subsequent interview with the social worker in January 2019, N.M. reiterated that it started when their family was living in the same apartment building as their maternal grandmother in St. Catharines. They thought they were maybe 6 years old but were unsure. They could not recall whether their younger sibling “A” had been born yet at that point. Regarding the shower incident, they said M.A.A. was “fully undressed” and “put his thing in my mouth, and I didn’t like it, and I kind of pushed back.”

[78] N.M. told the social worker, “It happened two more times I think, but in the place where he lives now with his mom.” They explained, “I went there for a visit for a weekend I think, and he did it again, but not the same thing.” They said they were on a mattress with their sister and M.A.A. came into the room. They stated, “He pulled down my pants a little bit, and just he more put his thing in between my legs, but didn’t put anything like in.” They said he unzipped his pants and rubbed his thing between their legs.

[79] N.M. stated, “I can’t remember the next time it happened. But I think it happened another time.” They said they thought the other time happened in the same place where M.A.A. was then living. They stated, “I don’t even know if there was another time, but I think there was. I’m not fully sure.” Upon further reflection, they said, “I think there was maybe one other time where I think S. [their sister] was upstairs, or either upstairs laying sleeping on the couch or in my dad’s mom’s room or A.’s [their brother’s] room.” They added, “I’m not sure, but I think I can’t maybe really remember if he did a third time. But maybe something I don’t even know.”

[80] At the preliminary inquiry in February 2021, after viewing the video recordings of their prior statements, N.M. confirmed the veracity of the allegations they had conveyed to the police and social worker about the shower incident and the mattress incident. During their examination-in-chief, they stated that there was another time between those two incidents, and then they disclosed for the first time that other incidents of sexual touching occurred with some regularity, approximately once or twice a week. They said it happened in the bedroom that their mother shared with M.A.A. in the basement of a house the family rented in Brampton before their parents separated. They said, “I would lay beside him like I did the second time I mentioned in the video, and he would put his private in between my thighs.” They also stated, “He would pull my pants down like in the second incident that I mentioned, and he would put his private somewhere between my thighs and he would go back and forth… for a few minutes.” They were asked why they did not mention these other incidents previously and stated, “I guess seeing these videos from a few years ago got my mind going again and I remembered more to it.”

Analysis – Procedural Reliability

[81] One of the advantages of video-recorded evidence in child sex abuse cases is that it enables the trier of fact to hear an accurate account of what the complainant was saying about the incident around the time it first came to light. Another advantage is that the recording reveals how the child was questioned. “[T]the manner of questioning, the reaction, the responses and the entire circumstances of the taking of the evidence are before the court through the medium of videotaping”: L.(D.O.), at para. 60, per L’Heureux-Dubé J. concurring.

[82] In this case, the transcripts of N.M.’s video-recorded interviews demonstrate that their inculpatory statements to the police and to the social worker were not elicited by leading questions. The way the interviews were conducted provides some procedural reliability. The location of the police interview and the fact that the statement was given to a person in authority are also indicia of procedural reliability: R. v. Nicholas, (2004) 70 O.R. (3d) (ON CA), at para. 91.

[83] None of N.M.’s out-of-court statements were made under oath or solemn affirmation, which is unsurprising given their youthful age on the dates when the statements were recorded. They were 10 years old when they spoke to the police and the social worker. They were 12 years old when they testified at the preliminary inquiry. N.M. did, however, make promises to tell the truth before making each of their out-of-court statements. Both the police officer and the social worker asked them to promise to tell the truth. Both also went through exercises with N.M. to ensure that they understood the difference between a lie and the truth. In addition, when N.M. testified during the preliminary inquiry, they did so after promising the presiding judge to tell the truth, pursuant to s.16.1(6) of the Canada Evidence Act.

[84] N.M.’s promises to tell the truth during their interviews are indicia of procedural reliability. Their promise to tell the truth at the preliminary inquiry has the same legal effect as taking an oath: Canada Evidence Act, s.16.1(8).

[85] N.M.’s cross-examination at the preliminary inquiry covered their two prior statements (to the police and social worker), the new allegations made for the first time during their examination-in-chief, and the inconsistencies between their initial statements and their testimony-in-chief. For the reasons set out below, I have concluded that the audio recording of N.M.’s cross-examination during the preliminary inquiry, combined with the video recordings of the two earlier statements, are adequate procedural substitutes for N.M.’s cross-examination at trial.

[86] Defence counsel argues that the cross-examination during the preliminary inquiry is an inadequate substitute because the accused was represented by a different lawyer at that time, and because the complainant will be almost two years older on the date of trial than they were when they testified at the preliminary inquiry. I fail to see how either factor is relevant to the procedural reliability of the hearsay evidence given at the preliminary inquiry.

[87] Notably, Defence counsel was unable to identify any aspect of previous counsel’s cross-examination of N.M. at the preliminary inquiry that rendered it deficient as a tool for the jury to assess the complainant’s honesty, memory, perception, or narrative of the events. The cross-examination was lengthy, detailed, and thorough. N.M. was questioned not only about the alleged offences, but also about their statements to the police and social worker, and about the events leading up to their disclosure of the allegations.

[88] N.M.’s cross-examination at the preliminary inquiry covered the following topics:

a) the composition of N.M.’s family, including their siblings and step-siblings, the order of their birth and the timing of their birth in relation to the timing of the alleged incidents of sexual abuse;

b) the trajectory of M.A.A.’s relationship with N.M.’s mother (when it started and when it ended) in relation to the timing of the alleged incidents;

c) the various residences in which N.M. lived both prior to and after their parents’ separation, the cities where the residences were located, and the periods in which each residence was occupied in relation to the timing of the alleged incidents;

d) the circumstances surrounding N.M.’s drawing of the penis on the school bus seat that triggered a meeting with their teacher;

e) what transpired at the meeting between N.M. and their teacher where the initial disclosure of alleged sexual assault occurred;

f) N.M.’s subsequent disclosure to their mother;

g) the ensuing police interview;

h) the subsequent interview with the social worker, N.M.’s understanding of its purpose, and how it came about;

i) whether N.M. discussed their allegations with anyone in between these two investigative interviews;

j) with respect to the shower incident: how the incident started; particulars of M.A.A.’s physical movements; where and how he touched N.M. to get them out of the shower; his and their respective states of dress; how long the fellatio lasted; what, if anything, was spoken by either of them before, during and after the offence; and how the incident ended;

k) with respect to the mattress incident: the size of the mattress; how the mattress was oriented in the room; where the complainant’s sister was sleeping; the lighting in the room; how the incident began; the precise positioning of the complainant’s, the accused’s, and the sister’s respective bodies on the mattress and in relation to each other; how long the sexual touching lasted; N.M.’s and M.A.A.’s state of dress; whether their sister woke up during the incident; what, if anything, was said by either of them before, during, or after the alleged assault; and how the incident ended;

l) with respect to all the allegations, including the new allegations made at the preliminary inquiry for the first time: the particular residences where each of the offences occurred; the physical layout of those residences; the rooms within the residences where the offences occurred; whether the door of the room was open or closed when each offence occurred; the occupants of the residences, whether they were present, where they were located and what they were doing when the offences occurred; and the time of day and time of year when the offences allegedly occurred;

m) whether M.A.A. ever told N.M. not to tell anyone what had happened;

n) whether N.M. had discussed their allegations with anyone prior to testifying at the preliminary inquiry;

o) whether N.M. had reviewed the videos of their prior statements before testifying at the preliminary inquiry;

p) why they did not previously allege that there was ongoing sexual touching in between the two discrete incidents discussed with the police and social worker; and

q) what prompted their recollection of additional incidents of sexual touching that were not previously disclosed.

[89] Notably, during the cross-examination at the preliminary inquiry, Defence counsel probed several inconsistencies in the complainant’s statements. For example, N.M. was questioned about the fact that:

a) they stated at the preliminary inquiry that a friend had told them to draw a penis on the bus seat, but they did not tell that to the teacher, police officer, or social worker;

b) they told the police officer that they intended to draw a butterfly, but testified at the preliminary inquiry that they meant to draw a “private part”;

c) they were unable to describe the shower curtain to the police officer but were able to describe it to the social worker one month later;

d) they told the police officer and social worker that they thought they were 6 years old when the shower incident occurred, but testified in chief at the preliminary inquiry that they thought they were younger, likely 4 almost 5 years old; and

e) they could not remember specific incidents of sexual touching other than the shower incident and mattress incident when they were interviewed by the police and social worker, but they testified about repeated weekly or biweekly incidents for the first time at the preliminary inquiry.

[90] Defence counsel not only probed N.M.’s credibility and the accuracy of their memory, but also scrutinized both their perception and narrative. For example, in relation to the shower incident, N.M. was questioned about how they could have seen or heard their mother and siblings leaving the apartment (as they claimed) if the shower curtain was closed and the bathroom door was mostly closed. In relation to the mattress incident, they were questioned about how, in the darkness and facing away from M.A.A.’s bedroom, they knew that M.A.A. had come out of his room, and how they could discern his movements on the mattress in the darkness with their back to him.

[91] It is impossible to capture the entirety of the cross-examination in a summary format. I provide the above examples to demonstrate that the video-recorded statements and the audio recording of N.M.’s testimony from the preliminary inquiry constitute a satisfactory basis upon which the jury will be able to rationally evaluate the truth and accuracy of all of N.M.’s hearsay statements at trial. Procedural reliability of the disputed evidence has therefore been established.

Analysis – Substantive Reliability

[92] With respect to the circumstances in which the hearsay statements were made, I mentioned previously that N.M. gave their police statement pursuant to a promise to tell the truth. Notably, the transcript of the interview shows that the officer took steps to ensure that N.M. could discern between the truth and a lie. N.M. offered a satisfactory definition of what constitutes a lie and responded appropriately to an example of a lie about what they were wearing.

[93] Similarly, when N.M. promised the social worker to tell the truth, the worker took steps to confirm that they understood the meaning of that promise. The worker also instructed N.M. not to guess if they didn’t know an answer to a question and took steps to confirm that N.M. understood this direction. The worker invited N.M. to correct them if they misstated anything and took steps to confirm that N.M. understood that direction as well. During the interview, N.M. did, in fact, correct the worker on more than one occasion. For example, N.M. immediately corrected the worker when she misstated the age of N.M.’s younger sibling on the date of the shower incident. In discussing the shower incident, at one point the worker said, “And so dad walked into the bathroom…”; N.M. cut her off and stated that they were not sure whether he walked into the bathroom or was just standing there when they opened the shower curtain. In describing the sequence of events during the mattress incident, the worker asked, “What parts of your body were touching your dad’s body?” and N.M. clarified that they were not touching at that point: their bodies were just close. These interactions provide some assurance that the complainant appreciated the importance of being accurate in their statements and endeavoured to be so.

[94] At the preliminary inquiry, after playing the video recording of N.M.’s police interview, the Crown asked them whether they had done their best to tell the officer the truth. They readily admitted that “there was a few lies in there.” They explained that they lied when they told the officer that the drawing they made on the seat in the bus was meant to be a butterfly. They acknowledged that “it was a private” and explained that they meant “a boy’s front part.” They stated that they also lied to the officer when they said they like to draw. They confirmed that everything else they stated during the police interview was true.

[95] Similarly, after the video recording of the interview with the social worker was played at the preliminary inquiry, the Crown asked N.M. if what they told the worker was true and accurate. They responded that the first time the accused “did those things to me,” they were younger than 6 years old, which is what they told the social worker. They clarified that they thought they were a little younger, like about 4 or almost 5 years old. They confirmed that everything else they said in the interview was true.

[96] These admitted untruths and error in N.M.’s prior out-of-court statements relate to issues peripheral to the allegations against M.A.A. and, consequently, do not undermine the statements’ substantive reliability on the key issues. On the contrary, the complainant’s candour in readily admitting the untruths and inaccuracy in their prior statements (on issues that do not concern specific allegations going to the core of their complaint against the accused) lends substantive reliability to their hearsay evidence at the preliminary inquiry: R. v. F.L., 2017 ONCA 472, at paras. 14-16.

[97] The complainant was also forthright during their cross-examination about facts that may support the Defence position at trial. For example, they readily acknowledged that it was dark during the mattress incident and that they were facing away from the person who assaulted them and did not see the assailant’s face. Such concessions lends substantial reliability to their hearsay evidence at the preliminary inquiry.

[98] Finally, extrinsic evidence corroborates a key aspect of N.M.’s testimony at the preliminary inquiry. With respect to the new allegation of ongoing sexual touching in between the shower incident and the mattress incident, N.M. testified that watching the videos of their statements from a few years prior triggered new memories. They were asked whether they had seen the videos prior to coming to court that day and they said no. They similarly denied discussing either the videos or the allegations with anyone prior to the preliminary inquiry, including the Crown, the police, or a social worker. Ms. O’Hara’s evidence corroborates that the complainant did not attend a preparation meeting to review their prior statements in advance of the preliminary inquiry.

Conclusion re: Threshold Reliability

[99] In summary, the following significant procedural safeguards are present:

a) the accurate preservation of the complainant’s statements through video and audio recordings that demonstrate how the interviews were conducted and what questions the police officer and social worker asked;

b) the complainant’s promises to tell the truth in circumstances where it is apparent that they understood the difference between a lie and the truth; and

c) extensive cross-examination of the complainant on their out-of-court statements and on the allegations disclosed at the preliminary inquiry, including cross-examination on inconsistencies in their statements.

[100] These procedural safeguards are sufficiently robust to overcome the specific dangers arising from the difficulty of testing the hearsay evidence without contemporaneous cross-examination of the complainant at trial. Threshold reliability has been demonstrated on this basis alone. It is, however, noteworthy that there are also indicia of substantive reliability complementing the hearsay evidence’s procedural reliability.

Constitutional Right to a Fair Trial

[101] I turn now to the final question of whether to exercise my judicial discretion to exclude the hearsay evidence despite its reasonable necessity and threshold reliability. I must weigh the evidence’s probative value against its prejudicial effect. In doing so, I must consider the accused’s Charter-based arguments.

[102] The probative value of the evidence is high. In other words, were the jury to accept the hearsay statements as true, there is a high probability that the jury would conclude that the Crown has met its onus of proving the essential elements of the offences beyond a reasonable doubt.

[103] The accused argues that the prejudicial effect of the hearsay evidence is so high that it outweighs the probative value. M.A.A. submits that, if the hearsay evidence is admitted as a substitute for the complainant’s testimony at trial, he will be denied his constitutional right to a fair trial, which is guaranteed by ss.7 and 11(d) of the Charter.

[104] Section 7 provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” One of the principles of fundamental justice is the right of the accused to make full answer and defence: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, at para. 69. Full answer and defence is also linked to other principles of fundamental justice, such as the presumption of innocence and the right to a fair trial.

[105] Section 11(d) provides: “Any person charged with an offence has the right… to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Among other things, this section guarantees the fairness of the process whereby the guilt of an accused will be proved. That guarantee further protects an accused person’s right to make full answer and defence.

Analytical Framework

[106] The constitutional right to a fair trial in s.11(d) of the Charter includes the right to make full answer and defence, which encompasses not only the right to adduce exculpatory evidence, but also the right to challenge the Crown’s evidence through cross-examination of witnesses: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 43. The right to cross-examine Crown witnesses is also a recognized principle of fundamental justice enshrined in s.7 of the Charter. Cross-examination “is all the more crucial to the accused’s ability to make full answer and defence when credibility is the central issue in the trial”: Osolin, per Cory J., at para. 27.

[107] Despite its importance, the right to cross-examine is not absolute: Lyttle, at para. 45; Osolin, at para. 29. In the context of a sexual assault trial, the rights of the complainant cannot be overlooked: Osolin, at para. 34. The Supreme Court of Canada has repeatedly held that, in cases involving sexual offences, the court must give primary consideration to the accused’s right to make full answer and defence, but must also protect the privacy, dignity and equality interests of the complainant: Osolin, at paras. 38, 198, and 213; R. v. Darrach, 2000 SCC 46, at para. 28; Mills, at paras. 62-66, 94; J.J., at paras. 118-119.

[108] Supreme Court jurisprudence clearly establishes that the fair trial guaranteed by s.11(d) of the Charter is “one that does justice to all the parties”: Darrach, at para. 70. Similarly, the jurisprudence establishes that the principles of fundamental justice enshrined in s.7 of the Charter “protect more than the rights of the accused”: Darrach, at para. 24. The Supreme Court of Canada has repeatedly held that the principles of fundamental justice include protecting the integrity of the trial, encouraging the reporting of sexual violence, and protecting the security and privacy interests of complainants: Seaboyer, per McLachlin J., at paras. 23 and 32; Mills, at para. 72; Darrach, at para. 25; J.J., at para. 120. This includes protecting the psychological integrity of child complainants.

[109] The principles of fundamental justice that the accused relies on must be assessed in conjunction with other principles of fundamental justice: Darrach, at para. 31. As the Supreme Court recently explained in J.J., at paras. 118 and 121:

[T]he spectrum of interests reflected in the principles of fundamental justice requires a court to avoid viewing any particular principle in isolation from the others (Mills, at para. 73). And “[n]o single principle is absolute and capable of trumping the others; all must be defined in light of competing claims” (Mills, at para. 61).

Accordingly, our analysis of the principles of fundamental justice under s. 7 adopts the balancing process that was applied in Mills and Darrach. Like s. 11(d), the right to make full answer and defence and the right to a fair trial are considered from the perspectives of the accused, the complainant, the community and the criminal justice system at large (O’Connor, at paras. 193-94, per McLachlin J., as she then was). In this manner, ss. 7 and 11(d) are complementary.

[110] The accused is not entitled to have trial procedures crafted to take only his interests into account: Darrach, at para. 24; J.J., at para. 125. The fairness of the trial is not assessed solely from his perspective. Fairness must also be assessed from the point of view of the complainant and community: Mills, at para. 72; J.J., at para 125.

[111] The concept of “fairness” is not immutable; it varies with the context in which it is invoked: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562, at para. 14; Mills, at para. 73. The Supreme Court of Canada in Mills, at para. 92, cautioned trial judges about “the need for an acute sensitivity to context when determining the content of the accused’s right to make full answer and defence.” In assessing fairness in this case, and in determining the content of M.A.A.’s right to make full answer and defence, I must bear in mind N.M.’s rights to security and psychological integrity, as well as society’s broader interest in protecting vulnerable child witnesses in cases of alleged sexual abuse: L.(D.O.), per L’Heureux-Dubé J., at para. 66.

[112] Neither s.7 nor s.11(d) of the Charter guarantee the accused the most favourable trial procedures imaginable: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at para. 88; Mills, at para. 72; Darrach at para. 24; J.J., at para. 125. Specifically, there is no constitutionally protected requirement that cross-examination of a complainant be contemporaneous with the giving of their evidence: L.(D.O.), at para. 2. For example, in the context of a challenge to the validity of the Criminal Code provision that sets out circumstances when evidence given at a preliminary inquiry may be read into the record at trial, the Supreme Court ruled that, while the accused has a fundamental right to cross-examine a witness, this examination does not have to occur at the trial: R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525.

[113] In T.H., the Court of Appeal for Ontario upheld a trial judge’s decision to deny the accused’s request for a stay of proceedings in a case in which the audio recording of a child complainant’s testimony at the preliminary inquiry was admitted as a substitute for cross-examination of the child before the jury. In that case, the child had accused her mother’s sometimes-partner of sexual assault. She gave two video-recorded statements to the police and testified at the preliminary inquiry, including cross-examination. At trial, she adopted the video-recorded statements during her examination-in-chief, then became increasingly reticent to answer the Crown’s questions. She ultimately became utterly unresponsive and could not be cross-examined. The Defence did not request a mistrial but, rather, asked that her evidence at the preliminary inquiry be admitted based on the principled exception to hearsay. The Crown did not object and the judge proceeded in that fashion. At the end of the trial, the judge gave the jury specific instructions on how to treat the complainant’s hearsay evidence, cautioning them about the absence of contemporaneous cross-examination at trial.

[114] On appeal, the accused in T.H. argued that the trial judge ought to have declared a mistrial as soon as it became clear that the complainant would not answer questions in cross-examination. He relied on his right to cross-examine witnesses as a central component of his constitutionally protected right to make a full answer and defence. His appeal was dismissed. The Court of Appeal held in T.H., at paras. 44 and 45:

[T]he trial judge was correct to conclude that the complainant's inability to participate in cross-examination was consistent with trauma and needed to be accommodated in a manner that struck a balance between the accused's right to make a full answer and defence and the societal need to protect the most vulnerable of complainants, children. …

In striking the appropriate balance, the trial judge accepted the defence request that the complainant's testimony at the preliminary inquiry be admitted as evidence pursuant to s. 715 of the Criminal Code. The complainant had been cross-examined at the preliminary inquiry and defence counsel was able to make submissions about that testimony as well as the other evidence in his closing address to the jury. In addition, the trial judge specifically cautioned the jury about the absence of a cross-examination of the complainant. In my view, taking these components together, the trial judge, per Lyttle, exercised his broad discretion to ensure trial fairness in an appropriate fashion.

[115] The Court of Appeal in T.H. noted that, in seeking to balance and accommodate the accused’s fair trial interests and the young complainant’s difficult situation, the trial judge was appropriately cognizant of the following observation made by Cromwell J.A. in R. v. Hart, 1999 NSCA 45, at para. 59: “Over the last 10 years, there has been growing recognition that some rules of evidence and trial procedure do not adequately address the special needs of young witnesses, particularly in sexual abuse cases.”

Application in this Case

[116] In an affidavit supporting his response to the Crown’s Application, M.A.A. deposed as follows: “I understand that the right to cross-examine witnesses does not apply at a preliminary hearing; But I was given a limited chance to cross examine the principal witness at preliminary hearing.” This statement is inaccurate. There were no restrictions imposed on Defence counsel’s cross-examination of the complainant at the preliminary inquiry in this case. As summarized above, a lengthy, detailed, and fairly comprehensive cross-examination of the complainant was conducted at the preliminary inquiry. This is a crucial consideration in assessing whether the accused would be deprived of his right to make full answer and defence if the hearsay evidence were admitted as a substitute for calling N.M. to testify at trial.

[117] Defence counsel argues that the accused’s right to a fair trial will be compromised if the complainant does not testify because a different lawyer was representing the accused at the preliminary inquiry, and he (Mr. Khan) has not had an opportunity to cross-examine N.M. himself. This argument might have some merit if the accused had been self-represented at the preliminary inquiry, but he was represented by able counsel who skillfully cross-examined N.M. His current Defence counsel, Mr. Khan, is unable to identify specific deficiencies in the scope of the cross-examination that his predecessor conducted. In the materials submitted and at the hearing of the Crown’s Application, Mr. Khan identified only one area of cross-examination not pursued at the preliminary inquiry which he intends to pursue at trial, namely the theory that the complainant’s mother put them up to fabricating the allegations against M.A.A. Defence counsel acknowledged that he would have an opportunity to cross-examine the mother on this topic at trial. In the circumstances, the inability to cross-examine N.M. about their mother’s possible influence is not fatal to trial fairness.

[118] Although it was not argued by the Defence in this case, I can imagine the accused believing that the opportunity to cross-examine the complainant on the same topics that were canvassed in their cross-examination at the preliminary inquiry could enhance his ability to make full answer and defence because it might elicit inconsistencies in the complainant’s statements over time. Exposing inconsistencies between a witness’s testimony at trial and their previous testimony at a preliminary inquiry can be an effective strategy to impugn the credibility of a witness during a cross-examination. However, that does not mean that the accused’s right to make full answer and defence is automatically breached if he is deprived of the opportunity to cross examine the complainant again. As the Supreme Court of Canada held in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, at para. 25, where a claim of trial unfairness was based on lost evidence, “the accused must establish actual prejudice to his or her right to make full answer and defence” (emphasis added): see also Mills at para. 75.

[119] M.A.A.’s argument boils down to an assertion that his ability to cross-examine the complainant at trial is fundamental to trial fairness because it will enhance the jury’s ability to assess the complainant’s evidence. He submits that the truth-seeking function of a trial is predicated on the presentation of evidence in court. Witnesses give their testimony under oath or solemn affirmation and the trier of fact has an opportunity to observe the witnesses’ demeanour. M.A.A. argues that this process gives the trier of fact robust tools for testing the truthfulness and reliability of evidence and assessing its value. He further argues that the truth-seeking function and the fairness of his trial will be compromised if the jury is not given the opportunity to observe the complainant’s demeanour while under cross-examination.

[120] I am not persuaded by this argument because demeanour plays a very limited role in the assessment of a witness’s credibility. As Justice Rahman noted in R. v. Siddiqi, 2021 ONCJ 648, at para. 9:

[M]ost people, including lawyers, drastically overestimate their ability to make credibility assessments based on a person’s demeanour [footnote omitted]. Witnesses are strangers to trial judges and trial lawyers. It is one thing to be able to tell when close friends or family members are being untruthful based on their demeanour. Most people have a baseline for people they know well. That baseline does not exist for strangers telling their version of events in the foreign environment of a courtroom [footnote omitted]. Witnesses testify in the uncomfortable, and often unfamiliar, setting of a courtroom. Everyone is focussed on what they are saying, and they know that their words are being recorded. Add to that the fact that witnesses might be testifying about things that they consider private or embarrassing in a public setting. In such circumstances, demeanour is of very limited value in assessing credibility.

[121] Relying on a witness’s demeanour in making a credibility assessment carries with it a real danger of making decisions based on unconscious biases, prevalent stereotypes, and inaccurate generalizations about human behaviour. Demeanour can be affected by many factors that have nothing to do with the witness’s sincerity or honesty, including the witness’s cultural background as well as the artificiality of and pressures associated with a courtroom: R. v. Rhayel, 2015 ONCA 377, at para. 85; R. v. D.P., 2017 ONCA 263, at para. 26. A witness’s demeanour may, therefore, be easily misinterpreted by the trier of fact. A child witness’s demeanour is particularly susceptible to misinterpretation because of the intimidation and stress that they will inevitably feel in the courtroom setting.

[122] For all the above reasons, jurors receive a standard caution about avoiding overreliance on demeanour in assessing a witness’s credibility. Jurors presumably follow the instructions given. This mitigates the potentially prejudicial impact of the jury in this case not having an opportunity to observe N.M.’s demeanour while testifying at trial.

[123] Furthermore, to the limited extent that demeanour is relevant to assessing the complainant’s credibility, the jury in this case will have the ability to observe the complainant’s demeanour on the two video recordings. Although N.M. was not cross-examined by either the police officer or the social worker who interviewed them, there is still some value to being able to observe their demeanour at that time: R.R., at para. 41..

[124] Finally, the jury will be able to listen to the audio recording of N.M.’s testimony at the preliminary inquiry, including their cross-examination. The jurors will not only hear the complainant’s words, but also their inflection, tone, intonation, spontaneity (or lack thereof), and other verbal cues from which the jurors may draw inferences, subject to any caution provided by the trial judge. The audio recording will give the jury some insight into the complainant’s demeanour, such as whether they appeared unsure of certain answers or reluctant to answer certain questions.

[125] The jury’s ability to see the complainant’s demeanour when they gave their initial statements to the police and social worker, and to hear the complainant’s testimony at the preliminary inquiry, mitigates the potential prejudicial impact of not having an opportunity to observe the complainant’s demeanour while testifying at trial.

Conclusion re: Charter Rights and Residual Discretion

[126] I have adopted the balancing approach required by the jurisprudence, taking into consideration the rights, interests, and perspectives of the complainant and of society, while giving primary consideration to the accused’s right to make full answer and defence. I conclude that the accused’s inability to cross-examine N.M. before the jury is not fatal to trial fairness in the circumstances of this case. The cross-examination conducted at the preliminary inquiry is sufficiently broad to enable M.A.A. to make full answer and defence to the charges against him. The answers elicited during cross-examination at the preliminary inquiry will allow him to make submissions to the jury challenging both the reliability and credibility of the complainant’s evidence. Admitting the hearsay evidence as a substitute for N.M.’s testimony at trial does not violate the accused’s Charter rights.

[127] I conclude that the minimal prejudicial impact of admitting the hearsay statements is outweighed by the high probative value of the evidence. There is no Charter breach and no other basis upon which to exercise my discretion to exclude the evidence.

CONCLUSION

The Crown’s Application is granted. The complainant’s hearsay statements are admissible at trial for the truth of their contents. I leave it to the trial judge to determine the appropriate instructions to give the jury with respect to assessing and weighing the hearsay evidence in the absence of contemporaneous cross-examination of the complainant.

PETERSEN J.

Released: October 26, 2022