This is the dissenting opinion of Mr. Justice Vancise which gave Donald and Helen Ross (the deaf birth parents of Michael, Michelle and Kathy) automatic right to appeal to the Supreme Court. Their appeals were successful.
McLachlin J. adopted a flexible approach to hearsay based on principle and the policy considerations underlying the hearsay rule enunciated in Ares v. Venner.18 The admissibility of hearsay evidence is determined with reference to two general requirements: necessity and reliability. She stated:
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 assessments 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. I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certain categories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. The matters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge.19
Those general principles are, however, subject to ensuring the accused's interests are safeguarded and subject always to the weight to be accorded to such a statement.
The Supreme Court of Canada again considered the issue in R. v. Smith,20 where McLachlin J's approach in Khan was heralded as a "triumph of a principled analysis over a set of ossified judicially created categories".21
The decision signalled, per Lamer, C.J.C. "an end to the categorical approach to the admission of hearsay evidence." Hearsay is now admissible on a principled basis, the governing principles being the reliability of the evidence and necessity. He continued:
The criterion of "reliability" or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be "reliable", i.e., a circumstantial guarantee of trustworthiness is established. The evidence of the infant complainant in Khan was found to be reliable on this basis.
The companion criterion of "necessity" refers to the necessity of the hearsay evidence to prove a fact in issue. Thus, in Khan, the infant complainant was found by the trial judge not to be competent to testify herself. In this sense, hearsay evidence of her statements was necessary, in that what she said to her mother could not be adduced through her. It was her inability to testify that governed the situation.22
The principles outlined by McLachlin J. were discussed and applied by Doherty J.A., for the court, in Khan v. The College where the out-of-court statement of the child victim in Khan was considered, this time in the context of a disciplinary hearing before the College of Physicians and Surgeons. (The reasons in Smith were released one week after Khan v. The College. As a result, Doherty J.A. was deprived of the reasons and further analysis of the Supreme Court of Canada when writing his judgment.) The child complainant testified in the proceedings before the disciplinary committee of the College. She was unable to recall details of the event which formed the subject matter of the complaint or what she had told her mother. She was three and one-half years old at the time of the incident and almost eight years old at the time of the hearing. The child could remember that Dr. Khan placed his penis in her mouth, but almost nothing else. The disciplinary committee admitted this statement made by the child to her mother 20 minutes after the incident.
In this case, Michelle could not remember the incident referred to by Anita Klassen or Dr. McKenna despite counsel's efforts to aid her. Counsel for the appellants did not object to these attempts, or in particular, the suggestion by Crown counsel that she had been examined by Dr. McKenna after the discovery of the spot of blood on her panties. She was asked whether she knew Dr. McKenna and she said she did not remember her or remember being examined by her.23
Thus, we have a situation where the child witness has testified but is unable to recall any of the facts surrounding the incident. The first issue is whether Michelle's testifying renders the statements she made to Anita Klassen and to Dr. McKenna inadmissible because the element of necessity has been removed. That issue and, in particular, the comment of McLachlin J. in Khan, that the issue of necessity may not arise if the child testifies, was fully considered by Doherty J.A. in Khan v. The College. He noted that the Ontario Court of Appeal in R. v. Collins24 had previously refused to admit the out-of-court statement where a child had testified. In his opinion, Collins stood for no more than the nature of the child's evidence in that specific case and did not preclude the admissibility of an out-of-court statement where a child testified. In his opinion, with which I agree, the most one can say is, ". . . the child's viva voce evidence will 'probably' render it unnecessary to receive the out- of-court statements in 'most' cases".25
The contention there be an automatic exclusion of an out-of-court statement when the child testifies should be rejected as it is inconsistent with the flexible principled approach adopted in Ares v. Venner followed in Khan and Smith. In accordance with the comments of Lamer C.J.C. in Smith, "necessity" must be given a flexible definition capable of encompassing diverse situations; the categories are not closed.
In establishing necessity, the fact the child testified is relevant to, but not determinative of, the admissibility of the out-of-court statement. The assessment of necessity which McLachlin J. describes as "reasonably necessary"26 in a child sexual assault case is the need to have the child's version of the events pertaining to the alleged assault before the court. It may well be that the out-of-court statement must be before the court to obtain a full version of the facts.
Doherty J.A., in Khan v. The College, listed seven factors which he suggests could be relevant and noted it would be unwise to make an exhaustive list of relevant factors. Those seven factors are:
1. The age of the child at the time of the alleged event and at the time he or she testifies;
2. The manner in which the child gives his or her evidence, including the extent to which it is necessary to resort to leading questions to elicit answers from the child;
3. The demeanour of the child when he or she testifies;
4. The substance of the child's testimony, particularly as it reflects on the coherence and completeness of the child's description of the events in question;
5. Any professed inability by the child to recall all or part of the relevant events;
6. Any evidence of matters which occurred between the event and the time of the child's testimony which may reflect on the child's ability to provide an independent and accurate account of the events in issue;
7. Any expert evidence relevant to the child's ability at the time he or she is required to give evidence to comprehend, recall or narrate the events in issue.
Turning now to the application of the principles in this case, Michelle testified but was unable to remember or testify about the incident in question. She did not remember the incident even when specifically directed by Crown counsel to the events surrounding the alleged sexual assault by her deaf father. She was specifically asked about blood being found on her panties and about being examined by Dr. McKenna, but was unable to recall either fact. She was unable to recall being examined by Dr. McKenna with the result that there was no way to test the reliability of the statement.
The trial judge heard the evidence of Michelle and two other complainants, Michael and Kathleen, as well as the two out-of-court statements, before ruling on the admissibility of the out-of-court statements made by Michelle.
If the evidence of Michelle concerning this incident was going to be before the court, it is clear it had to come from someone other than the child. Michelle could remember neither the incident nor being examined by Dr. McKenna. The Crown contended that, if the evidence of Anita Klassen and Dr. McKenna concerning an allegation of sexual assault by the appellant Donald R. was not to go in, there was no other evidence as to what happened. The Crown relies on the fact the out-of-court statement was allegedly made within a few hours of the incident and would be more reliable than a statement made later. The Crown also relies on the fact the alleged incident was at least five years old and occurred when Michelle was approximately five years old. Crown counsel conceded that, if the child could testify about the incident, the Crown would not need to rely on the out-of-court statement. The situation here is not identical to the second Khan trial where the child testified but could not remember all the information given in the out of court statement. Here the child testified but could not recall the incident.
Does this statement fall into the category of one "necessary to the prosecutor's case" as described by Lamer C.J.C. in Smith (See also R. v. F.(G.))27 and therefore outside the criteria?
The question of reasonable necessity to receive an out of court statement has been considered in R. v. Aguilar28 where the child testified and Katzman J.A., following Khan v. The College, found the determination of whether the statement is admissible is an ad hoc one. In Aguilar, the child testified at trial but did not provide all of the details contained in the out of court statement. Katzman J.A. compared the circumstances in Aguilar to those in Khan v. The College. He considered the age of the child at the time of the offence, the delay between the incident and the trial, the child's ability to recall certain events and, the lack of expert testimony concerning whether the failure to recall certain evidence was consistent with the expected limitation to remember and articulate traumatic events. He concluded, in the circumstances of that case, the criterion of necessity had not been established. Here, Michelle was not capable of remembering or testifying about the event. She was four or five years old when the alleged event took place and there was a five year delay between the alleged event and the trial. In addition she had been interviewed many times concerning the alleged sexual assault and others alleged to have occurred. The child's therapist testified as to the traumatic effect of the trial in the investigation on the child. Michelle was keenly aware the appellants were in the courtroom on the other side of the screen. The child's age, the time between the event and the trial, including the number of times she had testified or been questioned and the traumatism, were all cited as reasons for finding the out- of-court statement was reasonably necessary to obtain a "full and candid account of the child's version of the occurrence."29 In my opinion, the criterion of reasonable necessity was satisfied. The second criterion is more troublesome. The trial judge found the presence of what appeared to be blood on Michelle's panties, the fact the foster mother called the Mobile Family Crisis Centre and took the child to the hospital as well as the evidence of Dr. McKenna, who meticulously noted the comments made by Michelle, were indices of reliability. With respect, the actions and memory of the person to whom the statement was made are not what is crucial. What is crucial is whether the statement itself is trustworthy.
The criterion of reliability was described by Lamer C.J.C. in Smith as: The criterion of "reliability" or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be "reliable", i.e., a circumstantial guarantee of trustworthiness is established. The evidence of the infant complainant in Khan was found to be reliable on this basis.30 [emphasis added]
Is there a circumstantial guarantee of trustworthiness? When we examine the totality of the evidence we have the evidence of Michelle that she and Michael would lie to grown-ups regarding their sexual activity. The trial judge was also asked to and did make a ruling concerning an out-of-court statement made by Michael pertaining to the same incident at the natural parents' home. She rejected Michael's out-of-court statement which dealt with the same incident because it did not "satisfy the requirement of reliability, and will not, therefore be admitted as proof of the contents thereof."31
She did not elaborate. Michael admitted to having had sex with both his sisters, Kathleen and Michelle, in the bathroom at his father's house on the last visit. When he was questioned about the incident he stated:
Q Okay. Now, do you know what I mean by the bad touching?
Q And it's sexual stuff, okay?
Q You tell me in your own words. I don't want to be -- I don't want anyone to say to me afterwards that you're putting words in this boy's mouth. You tell you what you mean by bad touching.
A Sexual abuse.
Q And when -- how long -- has that been going on in the past between you and your sisters?
Q Okay, and I'm talking about Kathy and Michelle, okay.
Q We're not talking about your foster sisters, okay? Okay. Now, about how long has that been going on for? Or had it been going on for?
A Ever since the girls were three and I was five.
Q Okay. So that means that just between the kids, now we're not talking grown-ups, just between the kids --
A All right.
Q -- there was bad touching between you and Michelle, even happened sometimes when you lived at your birth parents, is that right?
Q Now, can you remember how it started?
A No, I can't.
Q Okay. Do you remember who did the bad touching first, whether it would have been --
Q -- you -- can't remember whether it was -- which of you three?
Q Okay. And when it started, was it just fingering, or
A Using the penis and the fingers.
Q You used the penis too, eh?
Q And this was even when you lived at your birth parents, is that right?
Q Okay. And you didn't like to get caught for that sort of thing?
Q Okay. Even by your birth dad, right?
Q Okay. And you did some of that in the bathroom with the girls?
Q Did you do any of that in the bathroom with the girls?
Q Okay, and you could lock the door in the bathroom, is that right?
Q Okay. Most of that occurred at Streeb (ph), is that the name of street?
Q Streb, sorry. Most of it occurred there?
Q And it sometimes happened when you visited your dad on Avenue C, is that right?
A Yes, yes.
Q Okay, and he caught you there too, once, didn't he?
Q Your dad?
A Which dad?
Q Birth dad?
Q Okay, he caught you doing something in the bathroom?
Q And it was with Michelle, wasn't it? Well, don't let me -- was it with Michelle?
A I don't know.
Q Okay. And when you did the bad touching with -- when you were caught in the bathroom, what type of bad touching was it?
A Like sexual abuse.
Q Yeah, was it with your finger?
A And penis.
Q And in her vagina area?
Q Okay. So you remember ever hurting Michelle doing that?
Q Okay. Can you tell when you hurt them and when you don't hurt them?
Q Okay. And about how many times would that have happened when you visited your dad on Avenue C?
A Every time we visited dad.
Q Every time?
A Every time we visited there.
Q Okay. Every time you visited there, you'd touch Michelle?
A And Kathy.
Q Okay. Now, sometimes you'd -- would any of the girls ever tell on you when you did that?
Q Okay. And sometimes you'd try to make them stop telling on you, right?32
Michelle testified Michael hurt her in her vagina.
A He put his penis in my vagina and it would get all red, and it would hurt.
Q Okay. Did Michael ever put anything else in your vagina besides his penis?
A And his finger.
Q Anything else besides his penis or his finger?33
In addition, there is the testimony of Donald R. that he caught Michelle and Michael in the bathroom the same day Anita Klassen noticed the blood spots on Michelle's panties and he had asked Michael if he had done something dirty because he was pulling up his pants. He said on direct examination:
Q And what did you see?
A Well, I yelled, and then Michael pulled up his pants, he said, "Nothing, nothing" and I gave a spanking. And I didn't -- and I told him not to touch the razor because it was sharp.
Q So this took place where? Which room?
A I told you, in the bathroom.
Q And how did you know to go to the bathroom?
A But Ralph was the one that was supposed to watch the kids, and he just kept watching TV, and I was in the kitchen cooking supper. And I came and that's when I saw this all happen.
Q Okay, and you came in where?
A Well, I didn't see -- I didn't see anything because Michael pulled up his pants really quickly.
Q Just tell the judge what you saw.
A Well, they were sport shorts that were on him, and they were pulled up quickly so I didn't see anything, but I asked Michael, 'cause he could sign. I said, "Did you do something dirty?" He said, "No, no."
Q Did you spank Michael?
A No. I spanked Michelle. Because Michael was blaming Michelle. I didn't spank her hard, I just gave her a, you know, I wasn't mean, I just gave her a spank.34
He repeated what he said in cross-examination:
A I went in there, the sink was broken. You know, the --both of them had their clothes on, the sink was broken and I think the reason why the sink was broken because she climbed up to try and get something out of the cabinet.
Q But both kids had all their clothes on?
A Yes. Yes.
Q Why did you ask Michael if he did something dirty?
A Well, I was just asking him, "Did you do something dirty?" and he said, "No, no." So maybe he did and he was just, you know, keeping it quiet.
Q Why did you think he did something dirty?
A Just thought he did. I told him he better stop, you know, acting dirty. And, you know, I said, "Did you pull your pants down and so [sic] something dirty?" "No." And then I looked at the sink and here it was, you know, busted. And Ralph and I tried to fix it.
Q Did Michael do anything that made you think that he had done something dirty in the bathroom that day?
A I don't know, you know, maybe he was horny, I don't know. Maybe he learned it from school.
Q But you didn't see him do anything, you just -- you just thought he might have done something?
A No, nothing. I just asked him. I said, "Michael, did you do something -- do something dirty?" and he just, "No, no." And maybe the two of them were lying.
Q Did you ask Michelle if something happened?34
In addition there is evidence the three children lied to adults about their sexual activities. For example, Michael testified that:
Q Okay. And did you ever make up a lie to them after you were caught?
A No. I mean, yeah.
Q Okay. And that's what I wanted, what I meant -- what sort of -- what sort of lie did you tell when you were caught?
A That we never touched each other, and we just were faking it.
Q Okay. And did Michelle and Kathy go along with that lie, did they tell that too?
Q Okay, so did you three talk about what sort of lie you would tell?
A No. I just told the lie and they agreed with it.
Q Okay, so you told the lie right in front of them, did you?
A Yeah, yeah, yeah.
Q And did you ever threaten them if they told on you?
Q Okay, give me an example of that.
A I'd say, "If you tell, I'll kill you with -- I'll strangle you with ropes."
Q Okay. And did you -- could you tell whether your sisters would -- were a [sic] scared of you?
A No, they just said, "Okay, then I won't tell on you."
Michelle also testified that:
Q MR. KERGOAT: That's a hard question, isn't it?
Q Okay, maybe I'll make it a little easier. What did Michael do?
A Put his fingers in her.
Q And can you tell us where that happened and about what time of day, just --
Q The judge hasn't heard any of this before, that's why I have to ask it again.
A In the playhouse.
Q In the playhouse?
Q And just go into the details of what he did.
A Brought her up -- it's like there's a (unintelligible) and there's a ladder that goes upstairs. And there's a big floor upstairs and a whole bunch of rugs and stuff, and he put his penis inside.
Q Okay. And you saw that?
A M'hm.QOkay. And did you help hold her down, too, to help Michael out?
Q Okay. And Kathy was fighting?
Q And then, after that, did Michael threaten you?
Q Okay, tell the judge what he said.
A Don't tell, okay, 'cause I don't want to get in trouble.
Q Okay. And did he say anything would happen to you if you did tell?
Q Okay, tell the judge that. You can tell the judge that.
A He said that he wouldn't touch me -- he wouldn't -- he'd get the -- get someone to hold me down and then he'd touch me --
THE COURT: I'm sorry, I can't hear you. Could you try speak just a little closer to the microphone?
MR. MIAZGA: (inaudible)
THE COURT: What did Michael say to you?
A Um, if he -- if I told on him, he would touch me and he'd get someone to hold me down.
Q MR. KERGOAT: And anything else, Michelle?
Q Go ahead.
A But it's kind of scary to say.
Q Well, we hear a lot of things here.
A He said he'd kill me.
Q He did? Did you believe him?
Q Did he tell you to make up any stories at that time?
Q And which story did he tell you to make up?
A Just telled me to say, just tells me to say, "Oh, we were just playing in the playhouse together" or something like that.
Q Okay. And did he tell you to say anything else to Lyle and Marilyn?
A Sometimes he'd say, well, we were just cleaning the playhouse, 'cause we clean the playhouse about every month. We put the rugs back in place and stuff.
Q Okay. And did he tell you to talk about anything else?