COURT FILE NO.: CR-22-3606
DATE: 2023-09-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
CHANDRA BALRAM
Robert Fried, for the Crown/Applicant
Jesse DiCecca, for the Defendant/Respondent
HEARD: June 29, 2023 and August 25, 2023
PUBLICATION RESTRICTION NOTICE
By order made under subsection 486.4(2.1) of the Criminal Code, information that may identify the complainants may not be published, broadcasted or transmitted in any manner.
REASONS FOR DECISION ON ADMISSIBILITY OF HEARSAY
C. Rhinelander, J.
[1] Chandra Balram is charged with one count each of sexual assault, sexual interference, and invitation to sexual touching. These charges stem from an incident alleged to have occurred on March 13, 2021.
[2] The Complainant, J.N., was six years old. She will be just shy of turning nine when the trial is scheduled to commence in October this year.
[3] The Crown sought an Order permitting the videotaped statement of J.N. to be admitted for the truth of its contents at the trial and stand in the place of her viva voce testimony. The Respondent opposed this application and asserted his right to cross-examine J.N.
[4] This application was heard in advance of the trial on consent of all parties, and it is agreed that the pretrial ruling on admissibility is applicable as if heard by the trial judge.
[5] The Applicant’s position is that J.N. is psychologically unable to testify at trial, and therefore the admission of her out of court statement is necessary. The Applicant relies on the testimony of her parents at the preliminary inquiry and a letter from a family doctor.
[6] I found that threshold reliability had been established with respect to J.N.’s statement. Necessity, however, had not been met. There was an insufficient evidentiary basis to establish that J.N. would suffer psychological harm.
[7] On Friday, August 25, 2023, I dismissed the Crown’s application with written reasons to follow. After dismissing the application, I advised the Crown that my decision did not preclude a renewal or further application, should new or additional information become available in advance of the trial. During the application, I expressed concern about the paucity of information provided in a seven-line letter from Dr. Babar that concluded with “I hope she would be provided with reasonable support and accommodations in this matter.” In this case, “reasonable support and accommodations” were not opposed by the defence.
Summary of Evidence on Application
[8] In support of its application, the Crown relied upon the viva voce evidence of DC Hawkins, excerpts of DC Hawkins’ notes, the videotaped statement of the complainant, J.N., taken on March 14, 2021, a transcript of the videotaped statement, the evidence heard at the preliminary inquiry on October 17 and 18, 2022 from J.N.’s parents and DC Hawkins, a CFS report dated August 11, 2022, and a note from Dr. A. Babar dated April 30, 2023.
[9] Mr. Balram was a tenant in a basement apartment of J.N.’s parents from 2015 until his arrest on March 14, 2021.
[10] At the time of the alleged incident, both parents were employed as personal support workers for the same company and worked different shifts. M.N. (mother of the Complainant) usually worked afternoons from 3 p.m. – 11 p.m. and W.N. (father) usually worked evenings from 11 p.m. – 7 a.m. M.N. drove the family vehicle and W.N. took public transportation which required him to depart home at 9:30 pm. M.N. would return home before 11:30 pm. This resulted in a gap of supervision for their children of approximately two hours.
[11] Efforts were made to seek assistance for this two-hour period from family and friends. This offence is alleged to have occurred during the pandemic when restrictions were in place, which created difficulties in finding anyone willing to assist, in part, due to the nature of the parents’ work and potential exposure to their own households.
[12] The parents’ tenant, Chandra Balram, had lived in the basement unit for approximately six years and had become close to the family and was referred to as “Grandpa”. Unable to find other assistance, arrangements were made for Mr. Balram to “babysit” the children. In exchange, the couple paid Mr. Balram $60.00 ($30.00 per hour).
[13] The children were readied for bed before W.N. left for work which included bathing, teeth brushing, and pajamas. The children shared a bedroom. W.N. would tuck them in and gave them an electronic device to watch movies until their mother returned home. Given these arrangements, there was no need for Mr. Balram to come upstairs from his unit unless there was an emergency or an urgent need for his assistance.
[14] W.N. had installed cameras outside and inside his daughters’ bedroom. The camera in the bedroom can be described as a “nanny-camera”. It focused on the children’s bed and had both video and audio capabilities that could be accessed, downloaded, and retained. The camera provided notification of movement and allowed either parent to check the video to check to see if their children were in bed. It also allowed them to see if anyone else was in the room.
[15] On either March 7 or 9, 2021, W.N. received a notification on his phone. W.N. observed Mr. Balram in the bedroom and saw Mr. Balram put his hand under J.N.’s clothes in the vicinity of her vaginal area. He heard Mr. Balram say her name. W.N. was unable to save the recording or capture an image from it.
[16] When W.N. arrived home, Mr. Balram said that J.N. had messed up her clothes in the stairway.
[17] Shortly after this date, W.N. purchased another camera and installed it so he could see the entrance to his daughters’ bedroom. It was initiated by motion detection.
[18] On March 13, 2021, while at work, W.N. received notifications to his cell phone and checked the cameras. He observed Mr. Balram enter his daughters’ room and then leave with J.N.
[19] Based on these observations, W.N. immediately called Mr. Balram. Mr. Balram said J.N. was “missing her shoes”. W.N. asked to speak to J.N. and instructed her to return to her bedroom. W.N. did not want Mr. Balram to know of the existence of the cameras.
[20] W.N. was very concerned for the safety of his children based on what he saw on the video footage and what he believed he had seen earlier in the week.
[21] The video footage and stills captured from the cameras were relied upon at the preliminary inquiry. Those materials were not filed on this voir dire; however, the transcripts show that Mr. Balram entered J.N.’s room five times and left with her on two of these occasions.
[22] Mr. Balram is first observed entering the room for approximately three and a half minutes before leaving the room with J.N.
[23] J.N. returned to her room 40 seconds later.
[24] Mr. Balram went back to J.N.’s room one minute and 27 seconds later and remained in the room for approximately 2 minutes.
[25] Mr. Balram returned to the room approximately six minutes later and exited with J.N. one minute and 17 seconds afterwards.
[26] J.N. was observed returning to her room on her own approximately 2 minutes and thirty seconds later.
[27] Approximately twenty-six minutes later, Mr. Balram was again observed entering the bedroom of J.N. and remained there for just over two minutes. He then returned approximately three minutes later and stayed for almost a minute and a half.
[28] Twenty minutes later, the hallway lights were turned on and J.N.’s mother was seen on the video footage having arrived home.
[29] W.N. did not advise his wife of his observations from the camera footage until the following morning when he returned home from his shift.
[30] M.N. testified at the preliminary inquiry that when W.N. arrived home on March 14, 2021, he woke her up and told her he wanted to “kick out this tenant in the basement”. When she asked why, he explained about the video recordings he had seen the night before.
[31] M.N. watched the video and observed Mr. Balram taking her daughter from the room and holding her pajama top from the back and “pushing her to go downstairs”.
[32] M.N. spoke to J.N. and asked her daughter “what happened last night when dad went to work?”. J.N. told her that “Grandpa came and took me from my room while I was watching the tablet with my sister”. J.N. went on to say that “Grandpa” took her downstairs in the living room and told her to take off her top, which she did, and that he also told her to take off her pants.
[33] In response to questions from M.N. as to what happened after that, J.N. said, “he told me to lie down on the couch and put my feet up. He just showed me – he told me he’s going to teach me some training, some tricks.” After this J.N. in answer to questions stated that Mr. Balram took his top off and “took out his thing and he pushed it in my mouth very hardly, I couldn’t even breathe, and then he was saying J*****, you have to swallow it, you have to swallow it, you have to swallow it.”
[34] M.N. testified after hearing this from J.N. she preserved her daughter’s clothing as M.N. noticed J.N.’s top was different than what she had seen on the video footage from the night before, but her bottoms were the same. M.N. collected the top, pajama bottoms, and J.N.’s underwear.
[35] W.N. contacted the police after M.N.’s conversation with J.N. The police arrived and M.N. gave them J.N.’s clothing.
[36] J.N. was interviewed by DC Hawkins on March 14, 2021 at the SCAN unit at Sick Kids Hospital. The statement was taken less than 24 hours after the alleged sexual assault and was videotaped. It was approximately one hour in length.
[37] A DNA sample was collected from the lower front panel of J.N.’s underwear. The sample consisted of a mixture of DNA from two contributors. Chandra Balram could not be excluded as a contributor and J.N. was confirmed as other contributor.
[38] Both parents testified at the preliminary inquiry with respect to J.N.’s behaviour post incident. Both parents expressed concern for J.N. and how testifying or having to answer questions about the incident may affect her psychological well-being.
[39] To assist J.N. in putting this incident in the past, the family moved, bought new furniture, have encouraged J.N. to participate in fun things, got her a rabbit, and do not discuss Mr. Balram or the incident. They have not taken J.N. for counselling or sought professional assistance.
[40] W.N. testified that if J.N. testifies it would remind her of what happened and will affect and destroy her. Since moving, J.N. is in a more stable and happier place. W.N. is concerned having J.N. relive the incident will cause her to relapse.
[41] W.N. was asked if having J.N. in a separate room, with her parents and a pet present, would help. W.N. said it would not. He acknowledged that she would be able to answer questions but is concerned how this will affect her in the future.
[42] Both parents confirmed that after the incident, J.N. couldn’t sleep, she was crying all the time and expressed concern that “Grandpa” would come and take her away again. This went on for at least a month. After Mr. Balram’s stuff was removed, M.N. told her daughter that she would not have to see him again, it was not her fault, and what he did was evil.
[43] M.N. expressed that after J.N. had spoken to the police and realized what happened to her was wrong, she was traumatized. J.N. is trying to move forward but she won’t really forget and believes it will come back to J.N. in the future.
ANALYSIS
[44] Over the last two decades, Canadian jurisprudence has settled on a more flexible approach when determining the admissibility of out-of-court statements. Hearsay that was once presumptively inadmissible, may now be admitted under the principled approach to facilitate the truth-seeking function of the Court. This evidence must be both necessary and sufficiently reliable. The onus is on the party seeking its admissibility on a balance of probabilities.[^1]
[45] I do not intend to recite the case law that governs the admissibility of out-of-court statements/utterances tendered for the truth of their contents; suffice to say that recent decisions have made it clear that necessity and reliability work together. However, where the necessity requirement may be relaxed, “threshold reliability must be established in every case.”[^2]
NECESSITY
[46] The starting point for determining if hearsay evidence should be received is whether it is necessary. As per McLachlin, J. in Khan, “Necessity for these purposes must be interpreted as ‘reasonably necessary’.”[^3]
[47] Circumstances where necessity may be established include the declarant’s death, medical unavailability, loss of memory, refusal to testify, recanting of the previous statement, and in the case of young children, potential to cause psychological harm.
[48] Where there is a potential to cause psychological harm, earlier decisions have indicated that sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm to the child may be required.
[49] The jurisprudence is clear that reasonable necessity need not be established by demonstrating that psychological trauma would be certain or serious but there does have to be a real possibility of the psychological harm. Doherty J.A. in R. v. S.M.R. states at paragraph 41:[^4]
There is no presumption of necessity where the out-of-court statement is made by a child. The Crown bears the onus of establishing that it is reasonably necessary to receive the out-of-court statement to obtain a full and frank account of the child's version of the relevant events: R. v. Rockey (1996), 1996 151 (SCC), 110 C.C.C. (3d) 481 at para. 17 (S.C.C.), per McLachlin J., concurring; Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 76 C.C.C. (3d) 10 at 24 (Ont. C.A.). Where the necessity claim rests on the contention that the child could be traumatized if required to testify, the Crown does not have to demonstrate that psychological trauma is certain or would be serious. The Crown does, however, have to show a real possibility of psychological trauma. I take trauma to refer to something more than discomfort or even distress: Rockey at para. 28, per McLachlin J. concurring. [Emphasis added.]
[50] The Crown argued that J.N. is psychologically unable to testify at trial. To support their position, the Crown relied upon the testimony of J.N.’s parents at the preliminary inquiry and a seven-line letter from a family doctor. The content of the letter is set out below. Dr. Babar was not called on this application.
J.N. is an eight year old female child known to me in my role as a Family Physician, since 2016. Unfortunately, J. became a victim of sexual assault in 2021 and I was involved in her care and Sick Kids SCAN clinic regarding this incident. I was recently informed by the father that she is required to appear in the court to give her testimony. In my opinion, as her doctor and a medical professional, having to revisit the situation and discuss about it can negatively affect her emotional and psychological well being. Therefore, it is highly recommended that in order to prevent the potential psychological adverse health outcomes in future, she avoids going over this traumatic event.
I hope she would be provided with reasonable support and accommodations in this matter.
[51] The letter from the doctor was vague and failed to provide the assistance required on the issue of necessity. Here are some examples of where the evidence was lacking:
a. When did Dr. Babar last see or speak to J.N.?
b. What was his involvement in J.N.’s care with respect to her visit to the SCAN clinic?
c. When W.N. contacted Dr. Babar for this letter, did Dr. Babar examine or speak to J.N. or is Dr. Babar’s opinion based off information provided by W.N.?
d. How would revisiting the situation and discussing the incident negatively affect her emotional and psychological well-being? On what basis does he form this opinion? Does he mean this would cause J.N. discomfort or distress but nothing more?
e. Dr. Babar concludes his letter hoping that J.N. would be provided with reasonable support and accommodations in this matter. What does this mean? Is he suggesting that testimonial aids would assist J.N. in her testimony, such that she would not suffer psychological trauma and it would merely mean some discomfort or distress?
[52] With respect to the evidence of the parents, it is clear they love and care for their daughter very much. The resources and efforts put in to relocate and assist J.N. in putting these incidents in the past demonstrate their concern for her well-being. Their desire to protect J.N., for her to forget what happened, and to move forward, is evident.
[53] However, M.N. was cognizant that her daughter won’t really forget and that what happened will come back in the future. W.N. was also concerned about how these events and having to testify will affect J.N. Having expressed these concerns for their daughter, and despite all the efforts they have put in to assist J.N. in moving forward, J.N. has not been seen by a professional.
[54] The Crown argues that no one would know better than the parents if their child will suffer psychological trauma by testifying. Evidence from the parents did not provide a sufficient basis to impute necessity. If this were the sole requirement, floodgates would open, and almost all parents or persons with parental authority would come forward to protect their children from the need to participate in court proceedings.
[55] The Crown argues that because the statement is sufficiently reliable, the necessity component can be relaxed. While I agree with this proposition, a proper evidentiary basis is still required. If I am wrong, and necessity has been met on the evidence placed before this Court, or if further evidence becomes available on the issue of necessity, I have gone on to consider threshold reliability.
THRESHOLD RELIABILITY
[56] In assessing threshold reliability, I must determine whether the statement is sufficiently reliable to overcome the hearsay dangers it presents.[^5] Threshold reliability can be established by:
i. the presence of adequate substitutes for testing the truth and accuracy of the hearsay statement (procedural reliability);
ii. sufficient circumstantial guarantees of reliability or an inherent trustworthiness of the hearsay statement (substantive reliability); or
iii. a combination of procedural and substantive reliability that work in tandem.[^6]
[57] J.N.’s statement was videotaped, and she promised to tell the truth, both of which are components to be considered when assessing procedural reliability. The only element missing was the lack of contemporaneous cross-examination.
[58] An out of court statement may still be admissible if it is determined to be “inherently trustworthy”.[^7] Courts can consider the circumstances of when the statement was made in addition to any evidence that corroborates or conflicts with the statement[^8] to satisfy itself of the inherent reliability of the statement. There is a difference between “threshold reliability” and “ultimate reliability” — only the former is inquired into at this stage.[^9]
[59] Evidence relied upon to corroborate the statement must be trustworthy. It must go to the truthfulness or accuracy of the material aspects of the hearsay statement upon which the applicant relied for the truth of its contents. The function of this is to offset the need for cross-examination on the point that the hearsay is tendered to prove. It must demonstrate that material aspects of the statement are unlikely to change under cross-examination. If alternate explanations could be adduced through cross-examination, the hearsay dangers continue. Similarly, if corroborative evidence is equally consistent with alternate explanations, it does not assist in this analysis.
[60] The admissibility inquiry into threshold reliability is focused on the question whether the trier of fact will be able to rationally evaluate the evidence.[^10]
[61] In assessing reliability, many factors need to be considered including timing, demeanor of the declarant, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement.[^11]
Age of the Complainant and Nature of the Allegation
[62] At the time of the statement, J.N. was 6 years old. The information she provided in answer to non-leading questions was information suggestive of the truthfulness of her answers. The description of the acts she was asked to perform by Mr. Balram and her lack of knowledge and inability to formulate words to describe those parts of his body and her own are also indicia of the reliability of her statement. She told the officer Mr. Balram told her to “drink him” and that she needed to “suck”. She also said that Mr. Balram had tickled her. Twice in her statement when trying to explain the “tricks” Mr. Balram was teaching her, she rolled onto her back and lifted her legs in the air apart. She was shown two anatomical drawings of a male and a female. She identified the penis on the male drawing as the part of the body she was told to suck, and the vagina on the female drawing as where she said she was tickled. She also identified her mouth as what she used to “suck” Mr. Balram.
Timing of Statement to the Alleged Event
[63] J.N. told her mother what happened the following morning when asked why she had a different pajama top on. Her mother asked open-ended questions, such as “what happened next”. The videotaped statement was taken at the hospital a few hours after the disclosure to her mother and less than 24 hours after the event.
Demeanor of J.N.
[64] J.N was responsive to the officer’s questions and corrected the officer when she misstated something. An example of this is when the officer was asking about treats. J.N. repeatedly indicated that Mr. Balram was showing her “tricks” not treats. From watching the video, it does not appear that J.N. realized that what Mr. Balram had done to her was wrong. She explained how her tummy hurt but did not seem embarrassed when attempting to answer questions.
Absence of Leading Questions
[65] In general, the questions were non-leading. However, there were a few areas where suggestions were made to J.N. based off extraneous information known to the officer from speaking with J.N.’s parents. This did not lead to anything in substance being agreed to. In fact, quite to the contrary and as indicated in the former paragraph, J.N. readily corrected the officer or restated in her own words what she was trying to convey to the officer. By this I mean J.N. did not adopt the suggestions when the questions were put to her.
Absence of Motive to Lie
[66] J.N. told the officer that she and her sister called Mr. Balram “Grandpa”. There was no apparent motive for J.N. to have fabricated or lied about these events. Further, there is corroborative evidence that supports her statement to the police as set out below.
Corroborative Evidence
[67] J.N. told the police that he tickled her vaginal area. A sample of DNA was obtained from a cut out of the lower front panel of J.N.’s underwear. The sample consists of two contributors. J.N. is one and Mr. Balram cannot be excluded as the second contributor. This lends credence to the statement’s truth and the only explanation for a blend of J.N. and Mr. Balram’s DNA goes directly to J.N.’s truthfulness and accuracy of material aspects of her statement.
[68] J.N. told the police that Mr. Balram came into her room and took her downstairs. Video footage from the cameras confirm that Mr. Balram entered her room on five occasions that evening and left with her two times. The parents were clear that there would be no reason for Mr. Balram to come upstairs from his unit unless there was an emergency such as a fire or break in. The camera in the bedroom had audio and there was no evidence from W.N. that either of his daughters had required assistance. Based on the corroborative evidence of the DNA, in combination with the video footage, there is a rational basis to reject alternative explanations for the statement.
[69] In Khelawon, Charron J. stated,
In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent, but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness.[^12]
[70] A trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary to the issues to be decided or whose reliability is neither readily apparent nor can meaningfully be tested by the ultimate trier of fact. In this case, the statement goes directly to the issue to be decided and the reliability can be assessed and weighed by the trier of fact, assuming necessity can be established.
[71] In circumstances where there is no ability to cross-examine the declarant, this would go to the weight to be given to this evidence and not its admissibility.[^13]
[72] Karakatsanis J. comments in Bradshaw[^14],
While the standard for substantive reliability is high, guarantee "as the word is used in the phrase 'circumstantial guarantee of trustworthiness', does not require that reliability be established with absolute certainty" (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process" (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court's jurisprudence. Substantive reliability is established when the statement "is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken" (Smith, at p. 933); "under such circumstances that even a skeptical caution would look upon it as trustworthy" (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is "unlikely to change under cross-examination" (Khelawon, at para. 107; Smith, at p. 937); when "there is no real concern about whether the statement is true or not because of the circumstances in which it came about" (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).”
[73] For all of the above reasons, I have dismissed the application; however, the Crown is not precluded from renewing or bringing a further application should new or additional information become available in advance of the trial.
C. Rhinelander, J.
Released: September 7, 2023
COURT FILE NO.: CR-22-3606
DATE: 2023-09-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
CHANDRA BALRAM
REASONS FOR DECISION ON ADMISSIBILITY OF HEARSAY
C. Rhinelander, J.
Released: September 7, 2023
[^1]: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47.
[^2]: R v. Furey, 2022 SCC 52, 476 D.L.R. (4th) 193, at para. 4.
[^3]: R v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, at p. 546.
[^4]: R v. S.M.R. (2004), 2004 31916 (ON CA), 190 O.A.C. 271 (C.A.), at para. 41.
[^5]: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 26
[^6]: Khelawon, at paras. 61–63, 76; Bradshaw, at paras. 27–32.
[^7]: Khelawon, at para. 90; Bradshaw, at para. 27.
[^8]: Bradshaw, at para. 30.
[^9]: Ibid, at paras. 39–42.
[^10]: Khelawon, at para. 76
[^11]: Khan, at p. 547.
[^12]: Khelawon, at para. 49; R. v. S.S., 2022 ONCA 305, 161 O.R. (3d) 641, at paras. 97-99; aff’d, 2023 SCC 1, 476 D.L.R. (4th) 389.
[^13]: Khelawon, at para. 71; Khan, at p. 547.
[^14]: Bradshaw, at para. 31.