Reasons for Decision on Child Hearsay Statements
COURT FILE NO.: FC-19-200
DATE: 2022/02/04
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nicholas Farouk Ali, Applicant
AND
Annine Marjorie Obas, Respondent
BEFORE: The Honourable Mr. Justice Pierre E. Roger
COUNSEL: Altynay Teshebaeva, Counsel for the Applicant
Julie Gravelle, Counsel for the Respondent
HEARD: February 2, 2022, by video conferencing
Reasons for Decision on Child Hearsay Statements
It was agreed at the outset of this trial that this evidentiary application would be argued at the end of the evidence, just before closing submissions. I thank counsel for their helpful written submissions, received and reviewed earlier, and for their oral submissions.
As was discussed, the issue is whether the out of court child hearsay statements, alleged by the respondent, should be admitted into the evidence.
As agreed during the trial, the relevant evidence was heard throughout the trial by way of blended voir-dire. At issue are the following alleged statements made by the child:
a. The child’s frequent statements to the respondent starting in April 2021, and thereafter at unspecified dates, that the applicant slaps her. The mother of the respondent also testified that statements by the child about being slapped by the applicant were made in her presence.
b. The child’s statement to the respondent in April 2021, that the applicant had slapped her on her hand.
c. The child’s statement to the respondent in April 2021, that the applicant had slapped her on her mouth or lips.
d. The child’s statement made during the Spring 2021 to the respondent and a co-worker of the respondent, that she does not like it when the applicant kisses her because his mouth is not clean, and, as well, the child’s additional statements to the respondent at about that time also to that effect.
e. The admissibility of an audio tape recording of the child secretly made by the respondent during an exchange of the child with the applicant on April 20, 2021, containing statements by the child about being slapped by the applicant.
The respondent and the applicant disagree whether these statements meet the hearsay exceptions under the principled approach, or whether the statement about the mouth is alternatively admissible under the “state of mind” exception. As well, under the court’s residual discretion, they disagree whether the prejudicial effect of admitting these hearsay statements outweighs their probative value.
As we know, at least since the decision of the Supreme Court of Canada in R. v. Khan, although hearsay evidence is presumptively inadmissible, it may be admissible where the circumstances meet the requirements of necessity and reliability. Here, necessity is admitted by the applicant as the child is very young, she was born in May 2018. It leaves the issue of threshold reliability, and the court’s residual discretion of weighing probative value versus prejudice.
When assessing threshold reliability, courts are concerned with the reliability of the declarant, in this case the child. To assess this at this stage, courts consider all relevant circumstances including such things as timing, demeanour, spontaneity, whether it occurred naturally, without suggestion, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication by the child. This also includes evidence of the circumstances under which the statement was made, and the presence or absence of corroborating evidence.
Threshold reliability is directed at determining whether the hearsay statement exhibits sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. The trial judge starts from the premise that a hearsay statement is presumptively inadmissible and determines whether there exist sufficient indicia of trustworthiness to displace the general exclusionary rule.
A tape recording must meet the authenticity requirements of s.34.1 of the Evidence Act. However, here, the authenticity of the electronic record is not seriously challenged by the applicant. I agree with that because of the presumption of integrity created by that section when there is evidence that the device was operating properly. Here, the evidence of the respondent is that she used the recording application on her working iPhone.
However, it is argued that the prejudicial effect of the recording outweighs its probative value because not only is there no opportunity to cross-examine the declarant, but also because of the systemic prejudice that would arise from the admission of secretly obtained evidence in family cases considering how it tends to undermine the core values of modern family law of assuring the best interests of the child, reducing conflict, and of maintaining, restructuring and encouraging family relationships.
When I consider the evidence and the law submitted in writing and orally by the parties, I arrive at the following conclusions.
Dealing firstly with the audio recording, I ultimately find that the probative value of this recorded statement is slight in comparison to the prejudice that might otherwise result should it be admitted, and therefore conclude that it is inadmissible.
The probative value of this recording is directed towards the child’s best interest, her well-being, and whether she is harmed while in the presence of her father. However, the recording is of very poor quality and it is difficult to hear what the child is saying. Too much reliance would be placed on the interpretation of this recording made by the respondent at trial. As a result, it is difficult to assess whether the child spoke spontaneously, all of which impacts not only the reliability, but at the residual stage of the analysis, the probative value of the recording.
As indicated by my colleague, Justice Fryer in Wilson v. Sinclair, 2021 ONSC 8345, at paras 18-19:
[18] The basic test for admitting this evidence has not changed. Rather, since the decision in Reddick, the court has placed a greater emphasis and weight on the presumptive, significant prejudice that must be overcome by a party seeking to admit surreptitious recordings. See Scarlett v. Farrell, 2014 ONCJ 517. [emphasis added]
[19] I concur with Kurz J. when he states: the “presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and the children”: Van Ruyven v. Van Ruyven, 2021 ONSC 5963, at para 41.
The recording presented by the mother, which was presented by her for the first time during this trial, is of such poor quality that it does not disclose serious misconduct by a parent or significant risk to the child’s safety or security, nor does it disclose another interest central to the need to do justice. No transcript of the recording was provided. The child was young, and her language was limited. As well, the recording is of poor quality. I hear on the recording a child saying that she was hurt (“un bobo”), however it is not clear if she was hurt by her father, although I hear father (“papa”), and then, I hear a series of leading questions by the respondent and cannot make out the child’s answers. The audio recording therefore has, at best, extremely limited probative value. As a result, that audio recording is inadmissible because the prejudicial effect of its admission would exceed any probative value.
Next, dealing with the statements by the child that she is slapped by her father, and her statements that she does not like it when the applicant kisses her because his mouth is not clean, I find that those statements are admissible.
The statement that the child does not like it when the applicant kisses her because his mouth is not clean is admissible because there is evidence from a third party, a work colleague of the respondent, who does not see the respondent socially in any way, that the child made this statement spontaneously, naturally, and without suggestion. This convinces me that threshold reliability is made out. The probative value of the statement is argued to be that it demonstrates that the child makes spontaneous comments about her father, and in this regard the probative value of the statement exceeds its potential prejudicial effect.
The various statements that the child is slapped by her father are corroborated by the mother of the respondent. The child’s grandmother testified that the child said this in her presence without prompting at least once during dinner, and once while playing with her mother and grandmother at the park; she said that the child occasionally says this.
Although it is not clear what is meant by the word slap (in French “taper”), and although I have some reservation about threshold reliability and more reservation about the ultimate reliability of these statements, at this stage, for purposes of threshold reliability, I find that the evidence of the grandmother provides sufficient guarantees of their trustworthiness, and find it impractical at this stage to treat these statements differently one from the other because the allegations are so intertwined. These statements are therefore admitted, and as a result it is not necessary to deal with the state of mind exception.
This decision was read to the parties later on February 2, 2022, in order that they may prepare their closing submissions which were presented on February 3, 2022.
Released: February 4, 2022 Justice Pierre E. Roger
COURT FILE NO.: FC-19-200
DATE: 2022/02/04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Nicholas Farouk Ali
Applicant
– and –
Annine Marjorie Obas
Respondent
REASONS FOR DECISION
P. E Roger J
Released: February 4, 2022