R v S 2004

Back to cases

Her Majesty the Queen, and G S
[2004] O.J. No. 4821 • Information No. 981/04
Ontario Court of Justice, Kitchener, Ontario
Hearn J.
Oral judgment: September 15, 2004.
(54 paras.)

Criminal law — Evidence and witnesses — Evidence of children — Evidence — Hearsay rule — Children's statements.

Voir dire to determine the admissibility of out-of-court statements made by the four-year-old victim. The accused was charged with forcible confinement and abduction of a person under 14 years old. The victim was three and a half years old on the date of the alleged offences. The first statement occurred after an alleged incident where a man took the victim's hand. The mother questioned the victim about whether the man took the girl's hand or whether she had grabbed the hand. The victim said the man took her hand. The mother reported the incident to the police but the victim was unresponsive to the officer's questions. At lunch on the same day, the victim told her mother the man had been singing when he approached her. At bedtime, the victim showed her mother how the man had held her hand. A few weeks later, she told her mom she had dreamt about the man and was scared. The police attempted to take a videotaped statement from the victim but were unsuccessful. No attempt was made to have the victim testify.

HELD: Three of the four statements were admitted. The Crown had established necessity as there was no reasonable prospect of obtaining a meaningful account of the events from the victim by direct evidence. The child's demeanour, the timing of the first three statements, and the ability of the child to relay to her mother clearly and appropriately led to the conclusion that an aura of trustworthiness and threshold reliability existed. The child had no motive to fabricate or lie. The last statement, with respect to the child's dream, did not meet the threshold reliability given the passage of time and lack of evidence as to the circumstances surrounding the statement. Even if the statement was reliable, it was not relevant.

Statutes, Regulations and Rules Cited: Criminal Code, ss. 279(2), 281.

L. Elliott Counsel for the Crown
C. Fromstein Counsel for the accused


  1. HEARN J. (orally):— Yes, Mr. S is before the Court facing charges under section 279(2) of the Criminal Code and section 281 of the Criminal Code. This is a ruling on a voir dire conducted on September the 10th, and with submissions being heard on today's date with respect to the admissibility of certain out-of-court statements said to have been made by K.S. who is a child born July 13th, 2000 and who is alleged to have been the victim in this matter.
  2. K.S. was approximately three and a half years old at the time of the alleged offence and is currently four years of age, having just turned four in July.
  3. The impugned statements were said to have been made to K.S.'s mother on the date of the alleged offences; that is February the 28th, 2004, immediately after the incident, and then shortly thereafter at lunch time at Burger King, and then the evening of the event where K.S. was being put to bed, and finally again, some time in the early part of April 2004.
  4. The testimony on the voir dire indicates that on February the 28th, at approximately noon hour K.S. and her mother were out walking in the parkade area of the Kitchener Market in downtown Kitchener. Apparently some incident is alleged to have occurred wherein a man had taken K.S.'s hand. The mother of K.S. had asked K.S. immediately following the incident after a vendor had commented that K.S. was a "grumpy girl". "Did that man take your hand or did you think it was daddy?" There was no response to this inquiry by K.S. and the mother then again asked the same question without response. Finally the mother testified that she told K.S. that she really needed to tell mommy and she asked the question again. On this occasion K.S. is said to have said, "That man took my hand". These conversations are said to have taken place from the period from about two minutes after the "incident" until, as I understand the evidence, until about five minutes after the incident.
  5. The mother and K.S. continued walking, met up with the father and the son. Some attempt was made to locate the man without success and the parents then reported the matter to the service desk at the market. Police were called and Sergeant Eckensviller of the Waterloo Regional Police Services arrived. Approximately half an hour later or some time thereafter, at about 12:35. He spoke to the parents and received certain information. According to his evidence he then attempted to speak to K.S. but with no success. He indicated in his evidence that K.S. was "very shy and would not speak to him". He attributed this to the fact that she may have thought she had done something wrong because the police were called; although he was not in uniform and he also attributed to the fact that she was perhaps scared.
  6. Police departed and the mother, K.S., the father and the son then attended a Burger King to have lunch. At that time the mother testified that she asked K.S. if the man had said anything to her. K.S. said ... indicated, no. Then K.S. said that he had said, "la, la, la". She then told her mother that she had been walking behind singing "la, la, la" when the man came up and said, "la, la, la". The mother also asked if the man was smiling and the K.S. said no. Nothing else was said at that time.
  7. That evening when putting K.S. to bed, the mother testified that K.S. was restless; that K.S. had asked her mother to lay beside her. At that time, the mother asked K.S. "did the man hold your hand like this", in a fashion that was indicated to the court. K.S. replied, "no, mommy", and then apparently proceeded to show her mother how the man had held her hand by covering her thumb and holding tightly, apparently, quote pressing down hard. When K.S. said this to her mother she was sure and spoke matter-of-factly according to the mother. Nothing else was said at that time.
  8. However, again in early April, some weeks after the market incident, K.S. indicated to her mother one evening again that she had dreamt that a man took her hand, and she kept asking may I please go to my mommy and the man said yes, and she ran to her mommy and was really scared.
  9. During the cross-examination of the mother by defence counsel mother confirmed that during the relaying of the information noted K.S. was able to articulate fairly clearly what took place, and what she had dreamt about, and still had a recollection of the incident obviously weeks after in April.
  10. In addition to the mother and Sergeant Eckensviller, Detective Watkinson, also of the Waterloo Regional Police Service, gave evidence on the voir dire. She testified as to her attempt to take a videotaped statement from K.S. on March the 5th, 2004, without success.
  11. I have had an opportunity to view that attempt on video and the tape has been introduced as an exhibit on the voir dire. During this attempted statement, Detective Watkinson testified and the tape clearly shows that K.S. was virtually non-communicative with her. Detective Watkinson also indicated that any communication was primarily through the mother and that K.S. had acted "as she expected she would given her age". Again all of this information is confirmed by the video.
  12. The Crown seeks to introduce these various statements of K.S. to her mother, notwithstanding the hearsay nature of the statements, for the truth of the contents. The defence objects to the admission of this evidence. The Crown takes the position the statements should be admitted as of necessity and that they are reliable. The defence argues the Crown has failed to establish the necessity criteria for the admission of hearsay evidence and further that the Crown has failed to show the statements meet the requirement of reliability.
  13. As a general proposition, hearsay evidence is not admissible. However, evidence of a statement made by a person who is not called to testify is not always hearsay. If it is introduced for the truth of its contents, it is hearsay. If introduced for the fact that it was said, it is not hearsay and not subject to the exclusionary hearsay rule. Even however if the evidence escapes the exclusionary rule, to be admissible the evidence still must be relevant to a fact in issue. There are traditional exceptions in the admissibility of hearsay evidence, and in Regina v. Khan, [1990] 2 S.C.R. 531, and I can provide cites if required for the cases I will be referring, the Supreme Court of Canada established a new approach to determining the admissibility of hearsay which allows for its inclusion if it satisfies the requirements of necessity and reliability.
  14. Under this principled approach, the Court must determine on a voir dire whether the hearsay evidence satisfies the requirements of both necessity and reliability on a balance of probabilities before the evidence may be considered for admission.
  15. Madam Justice McLachlin in Regina v. Khan, stated at page 104 to 105, quote,

    "The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as "reasonably necessary". The inadmissibility of the child's evidence might be one basis for a finding of necessity, but sound evidence based on psychological assessment that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which could establish the requirement of necessity. The next question should be whether the evidence is reliable. Many considerations such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may be relevant on the issue of reliability."
  16. With respect to the, and dealing initially with the issue of necessity, necessity requires that the evidence be reasonably necessary to prove a fact in issue. The term does not mean necessary to prove the Crown's case, or necessary to the defence. What constitutes necessary can vary from situation to situation, but will always include the fact that the relevant direct evidence is not available. It can include the statement's maker being unavailable because they are deceased or mentally incompetent; that they are incompetent to testify, that they are competent to testify but not called for a valid reason, such as potential trauma. The reason must be established and might require expert testimony.
  17. However the case law indicates where it is self-evident that trauma would result, expert testimony is not required. It can occur where the witness is competent to testify or the maker is competent to testify and called to testify but unable to provide an accurate and full recital of his or her version of the events, or where competent to testify, called to testify and unable to provide an accurate and frank recital but is unwilling to do so. The case law establishes clearly that the necessity requirement arises not only from the physical unavailability but the need to obtain the best evidence in the circumstances.
  18. As noted in Regina v. F.(W.J.), [1999] 3 S.C.R. 569, which has been referred to by counsel, dealing with the issue of whether or not in order to determine or find necessity extrinsic evidence as to whether why the child was unresponsive need be addressed. The Court held as stated in the head note, as follows, quote,

    "Necessity should not be approached on the basis that the case must fit into a pre-ordained 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 testifying. There is no absolute rule that the evidence must be called on the issue of necessity. A foundation for ruling that necessity is established may arise out of the facts or the circumstances of the case is revealed to the trial judge or from the evidence called by the Crown. What occurs at trial satisfies the judge there is no reasonable prospect of obtaining a meaningful account of the events from the child by direct evidence, the judge may well find necessity on the basis that is self-evident", end quote.
  19. Madam Justice L'Heureux-Dubé was referred to during the course of Ms. Elliott's submissions and her reasons in that were read into the record somewhat ... for that decision was read into the record somewhat by Ms. Elliott, but I would refer to paragraph 36 where Madam Justice L'Heureux-Dubé in dealing with the evidence of children in particular states as follows:

    "Necessity therefore should not be approached on the basis that the case must fit into a pre-ordained 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 necessity may be diverse, ranging from total testimonial competence to traumatic consequences to the witness testifying."
  20. She goes on to state,

    "There is no absolute rule that the evidence must be called."
  21. She deals with the matters that I discussed previously. She goes on in paragraph 39 to state, quote,

    "We may thus conclude that where it is self-evident that a child's evidence will not be effectively available the judge may find necessity and subject to reliability admit the child's out-of-court statements. On the other hand where it is not self-evident from the circumstances that direct evidence will be unavailable with reasonable efforts, the judge may require evidence of that fact. This may be the case where the Crown without calling the child as a witness simply states that to call the child would be traumatic to the child. It was this context that the court in Kahn referred to sound evidence based on psychological assessments that testimony in court might be traumatic. It is therefore error to assert that in all cases there must be extrinsic (ph.) evidence to support the assertion that the out-of-court evidence is necessary under the Kahn rule. That is where the trial judge and not the prosecutor to determine necessity. To be sure the trial judge must have a foundation for the ruling that necessity is established but that foundation may arise from the facts and circumstances of the case as revealed to the trial judge or from evidence called by the Crown. What occurs at trial satisfies a judge there is no reasonable prospect of obtaining a meaningful account of the events from the child by direct evidence, a judge may well find necessity on the basis as self-evident."
  22. She goes on to state at paragraph 42,

    "Finally it is hard to understand how an assistance on evidence to support necessity on every case can be reconciled with the values underlining the hearsay rule and the increasingly sensitivity in society generally to the difficulties children face when called upon to testify. The law once refused to take cognizance of the special problems young witnesses face and the corresponding difficulties those who seek to prosecute crimes against young children consequently encounter. Child witnesses were treated like adults, even indeed more severely. Not only did they have to take the oath but also unlike adults, they were subjected to grilling on whether they understood its religious implications. If they failed this hurdle or the others that might appear down the road, like corroboration or evidence was completely lost, the law in recent decades has come to realize this approach was wrong."
  23. She goes on to state that in Regina v. Bannerman, Mr. Justice Dickson as he then was, pointed out the ...

    "... absurdity of subjecting children to examination on whether they understood the religious consequences of an oath. Parliament in a series of laws over the past decades moved to sensitize the law to the realities of the child witness and amended the law to permit children to promise to tell the truth instead of swearing the oath. It removed the requirements for corroboration. Most recently it has made available child witness aids to testify like screens, closed courtrooms and counsellors. The court's decision in Kahn 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."
  24. As further noted in Regina v. Parrott, [2001] 1 S.C.R. 178, another decision of the Supreme Court, released in 2001 and provided by counsel for the defence it is confirmed that the concept of necessity must be given a flexible definition, but still must be established on the facts of each particular case.
  25. Dealing with the issue of reliability: that is the circumstantial guarantee of trustworthiness, it is important to note that this component is a threshold reliability of admissibility, not ultimate or certain reliability. It involves the consideration of the reliability of both the statement's maker and the witness relating the statement to the court, and cited by Mr. Justice Lamer in Smith, [1992] 2 S.C.R. 915.

    "The circumstances under which the declarant makes a statement may be such as to guarantee its reliability irrespective of the availability of cross-examination. Guarantee as the word is used in the phrase, circumstantial guarantee of trustworthiness, does not require that reliability be established with absolute certainty. Rather it suggests where the circumstances are not such as to give rise to the apprehension traditionally associated with hearsay evidence, such evidence should be admissible even if cross-examination is impossible."
  26. At this stage, the Court is not concerned with the ultimate reliability, i.e. the weight to be given to the statement once it is admitted as noted. I am at this stage, concerned with the threshold reliability. Again Mr. Justice Lamer in Regina v. Hawkins, [1996] 3 S.C.R. 1043, in dealing with this area stated, quote,

    "The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so to afford the trier of fact satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement and then determine the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness and to compensate for those dangers", end quote.
  27. As noted again by Mr. Justice Lamer in Smith,

    "Reliability flows from the circumstances under which the statement in question was made."
  28. He states,

    "If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility where the declarant was untruthful or mistaken, the hearsay evidence may be said to be reliable, i.e. a circumstantial guarantee of trustworthiness is established."
  29. It is evident then that the statements need not necessarily be absolutely reliable. It is sufficient there is substantial reliability. Some of the factors then to consider in determining the reliability of hearsay evidence include lack of a motive to fabricate, the spontaneity of the statement that is given, the contemporaneousness of the statement with the events described, the demeanour, the personality, the intelligence and understanding of the maker of the statement. Reliability as I have noted at this stage is a function of the circumstances under which the statement is made.
  30. Considering those principles and the facts as set out in the voir dire then has the Crown established to the degree required the issues of necessity and reliability in order to have the impugned statements admissible by the Court in the totality of the evidence of this trial?
  31. Dealing with the issue of necessity first: The Crown argues that the age of the child, the evidence of Sergeant Eckensviller, the evidence of Detective Watkinson as well as the videotape, all establish the issue of necessity on the balance of probabilities.
  32. The defence argues the same evidence, together with the evidence of the mother, regarding the statements themselves, the fact that there was no attempt to have K.S. testify despite safeguards which defence counsel says are available under the Code (which I am not satisfied are available under the Code, but may in fact be subject to argument, common-law, i.e. the screen, the assistance of a support worker, and the defence argues those safeguards which are available are means of assistance to assist the child in testifying as set out in the Code) and the lack of evidence of trauma and the serious implication to the defence of being deprived of an opportunity to cross-examine the child, all support the defence position that the Crown has failed to establish necessity to the degree required.
  33. Clearly the various decisions of the Supreme Court support the principle that the necessity requirement arises not only from physical unavailability but as noted previously to the need to obtain the best evidence in the circumstances.
  34. In this case, the child K.S. was three and a half years of age at the time of the alleged offence. It is now approximately six and one half months later and the child turned four in July and is apparently enrolled in junior kindergarten. Her mother describes her statements to her as sure. She was able to articulate to the mother; did not hesitate. She was also able to show her mother quite clearly on the one occasion how the hand was held.
  35. However, the evidence of Sergeant Eckensviller indicates as clearly that the child was not only unresponsive to his questioning at the market. She was very shy; would not answer his questions, nor speak with him at all, notwithstanding the presence of both the mother and father. The evidence of Detective Watkinson is very similar as to her interaction with K.S. on March the 5th. Detective Watkinson confirmed communication with the child was primarily through the mother and solely through the mother, it appears from the video.
  36. Further Detective Watkinson testified that the child acted as she would expect a child of that age to act. The video clearly shows the child was unresponsive. The child is shy. The child is non-communicative. The child was on more than one occasion in the video comforted by going to her mother. She was being held by her mother. She did not engage with Detective Watkinson to any great degree, notwithstanding that the room appeared to be child-friendly.
  37. There were toys present. There was a book that she was referring to, or books, present; stuffed animals, and the fact that Detective Watkinson made virtually every effort she could to be on the same level physically as the child. She presented the child with a stuffed animal, and all this done in the presence of the mother. And I may ... I do not believe I was formally given any indication who the male was, but I believe it to be the father. So, even the presence of the mother and father in a child-friendly room in the presence of a very experienced police officer who made every professional effort and every compassionate effort to engage the child, was done without success.
  38. The evidence of the police officers and the videotaped attempt at the statement do not support the proposition that the child is capable of providing coherent evidence, as submitted by Ms. Fromstein. Indeed, it indicates in my view quite the contrary. K.S. presents on the video as more than uncooperative or unwilling to engage with Detective Watkinson. The video and the evidence of the police officers clearly show in my view that there is no reasonable prospect of obtaining a meaningful account of the events from K.S. by direct evidence. The evidence in support of that position is relatively recent, i.e. the video, and makes such a finding self-evident. It is not a situation where I am being quick, as counsel puts it, to jump at the finding of necessity. I believe the finding of necessity is fully supported by the evidence that I have before me. So I therefore find the Crown has satisfied the requirement of necessity on a balance of probabilities with respect to the evidence sought to be admitted.
  39. Dealing then with the issue of reliability: In my view the Court must look at the circumstances at play at the time each of the, and I count them four, and I will count them as four out-of-court statements are uttered to ... determine to be satisfied sufficient reliability exists to allow the statements into evidence. Keeping in mind the indicia of threshold reliability as set out in the case law as irrelevant in this case, I find as follows.
  40. One, with respect to the out-of-court statement made by the child in response to the mother's questions at the market shortly after the event, "did the man take your hand or did you think that was daddy". I fully appreciate that that question was asked on three occasions before the response was made. I fully appreciate that the response was made when the mother indicated to K.S. that she really needed to tell mommy. And I fully appreciate that the question gave the child two options to use in response to the question that was asked and to not give further options.
  41. However, I am also mindful that at this stage, I am not making a determination as to the ultimate reliability and credibility of the statement. I have to be satisfied was that utterance made under circumstances which substantially negate the possibility that K.S. was untruthful or mistaken and thus establish a circumstantial guarantee of trustworthiness.
  42. The demeanour of the child described by the mother does not indicate to me that K.S. thought she was in trouble. The child was walking with her head down and the mother has stated the child's reaction to the vendor's comment was different than normal. As I recall the mother's evidence it indicated the child might be frightened or scared. Her demeanour, the fact that the utterance was made within a very short period of time after the alleged incident, and the lack of motivation to lie or fabricate which are not apparent on the evidence to me, and the ability of the child to relay to her mother clearly and appropriately all lead me to find that the aura of trustworthiness exists with respect and a circumstantial guarantee of trustworthiness exists for the purposes of determination of threshold reliability. In my view it is evidence. That statement therefore will be admitted. I might note it is virtually contemporaneous to the event described.
  43. I appreciate there are leading questions, but the demeanour in this particular case certainly indicates to me that the child was fully appreciative of the utterance made. The circumstances certainly speak of trustworthiness, notwithstanding the leading nature of the question, and I think ultimately the leading nature of the question and the method of getting a response from the child, although it is a consideration on the threshold reliability, I find it is not a substantial factor to consider, but it of course may be much more in play when dealing with the ultimate reliability of that particular statement.
  44. With respect to the comments at Burger King, for the same reasons, the statement at Burger King will also be admitted into evidence. It is made within a very short period of time after the incident. I appreciate that it is done in response to a question by the mother, but the response was forthcoming. It was detailed and stated without hesitation or prompting or with apparent difficulty. Some detail was provided without questioning and it was relayed to the mother.
  45. As I understand defence counsel's position, even the argument defence counsel makes with respect to the reliability, at least threshold reliability, that statement is not overly powerful, but that said, I am still satisfied that the circumstances of the taking of that statement certainly provide a circumstantial guarantee of trustworthiness for the purposes of threshold reliability.
  46. With respect to the third statement made at bedtime, again, I find that there exists on the evidence a circumstantial guarantee of that trustworthiness required. The statement is likely to be reliable for the purposes of admission, given that it takes place on the same day as the event occurs, so it is relatively recent.
  47. Keep in mind the reliability flows from the circumstances under which the statement is made. The child requests the mother to lay beside her. There is an aura of comfort and confidence. The child responds to a question posed by the mother. She responds and engages the mother in conversation with re ... gave details of how the hand was held; didn't simply adopt the statement of the mother. She does not simply agree with the mother. There is at that point no motive to fabricate or lie and the manner and the circumstances surrounding the giving of that particular statement in my mind, and I find, provide the necessary circumstantial guarantee of trustworthiness to meet the threshold requirement of reliability.
  48. The last area to be addressed then is the area of what I might refer to as the dream sequence. I have concerns about this particular statement for a number of reasons. First of all, I am not even certain of all the circumstances surrounding the taking of this ... or the utterance of this particular statement on the evidence. It was covered very briefly by the Crown, but I gather this particular utterance is made in April, the beginning of April at best, as I can see, or early April. I am not sure what that means, but it certainly taken some ... or uttered some number of weeks after the alleged incident on February the 28th.
  49. The necessity issue I have determined the reliability issue is a concern to me. It is not contemporaneous or in my view there is an insufficient explanation for any activity. We go from the day of the event when three utterances are made to five weeks later and I am not satisfied what takes place in that five week period. I am not satisfied of all the circumstances surrounding the utterance, and most importantly, in my view, even if this does meet the threshold reliability and I find that it does not, but even if it does, in my view, this evidence is not relevant to the fact in issue.
  50. This evidence in my view speaks more to impact. It is stated some time after the events. It is ... Ms. Elliott indicates that it shows consistency but I think that is something that I specifically have to disregard. Mr. Justice Iacobucci in Starr stated for the majority that the trial judge should not consider the declarant's reputation ... general reputation for truthfulness nor any prior or subsequent statements, consistent or not, when assessing reliability. So in my view, that statement is fraught with difficulties and even if it could meet the difficulties with respect to the reliability issue, it is in my view not relevant to an issue and has no probative value and is more prejudicial; speaks more to the impact the event might have had on K.S. rather than to assist the Court to a determination relevant to the facts of the event on February the 28th. So that evidence will not be permitted to be entered into consideration on this trial.
  51. So in summary then, the utterances made at the market, at Burger King and on the evening of the event, all to the mother, will be admitted into evidence and shall be considered in the trial. The ultimate reliability and the weight to be attached to those statements is yet to be determined and yet to be argued, but they meet the threshold requirements of reliability and I am satisfied they are necessary.
  52. The statement in April of 2004, I noted my concerns about the reliability as a threshold requirement and given the passage of time and lack of evidence as to the entire circumstances surrounding that particular statement. Most importantly I note in my view it has no relevance in any event and does not go to the facts in issue with respect to the February 28th incident and that evidence will not be admitted.
  53. MS. ELLIOTT: Thank you, Your Honour.
  54. THE COURT: I would like to thank counsel for your submissions. Very thorough in a very interesting area of the law, and I appreciate your submissions.
Back to cases