R. v. Choy, 2011 ABQB 304

Court of Queen ’ s Bench of Alberta Citation: R. v. Choy, 2011 ABQB 304 Date: 20110504 Docket: 070121058Q1, 070121058Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lily Choy Accused _______________________________________________________ Reasons for Judgment on Voir Dire #2 of the Honourable Madam Justice D.C. Read _______________________________________________________ [ 1 ] Lily Choy stands accused of second degree murder in the death of her foster child A.B.

During the course of the trial, the Crown called Lucy Androzuk, the driver of the bus that carried A.B. to and from school in the few days just before his death. She testified respecting something the child said when he was on the bus the day before he died. Because this evidence was hearsay, a voir dire was held to determine its admissibility. What follows is my decision respecting admissibility of this evidence. [ 2 ] The child A.B. had just begun to attend a new school with a special program when he died.

He attended afternoons only and so would be picked up at about noon and brought back to his home sometime after 3:32 pm when the class was dismissed. Ms. Androzuk was the driver of the bus that took the child to and from school during the time he attended the school. From the evidence of the principal of the school, Monica Lukas, it is evident that A.B. attended the class at the school for four days: January 22, 23, 24, and 25, 2007.

Evidence of Lucy Androzuk: [ 3 ] Ms. Androzuk's evidence was that she remembered A.B. as a small, scared child who did not smile. The first day she saw him he was crying and afraid. She thought this was normal because in her experience, children were often afraid when they first started a new situation and would take a while to warm up. She recalled that the first day the child attended, someone other than the Accused saw him off to school. She described this person as a blonde woman and said she thought this person was a babysitter. Likely the person described by Ms.

Androzuk was the nanny Julie Gee. [ 4 ] The second time Ms. Androzuk drove the child, she first met the Accused, whom she described as a Chinese lady. Ms. Androzuk said that she introduced herself to the Chinese lady and they had a brief conversation. [ 5 ] Ms. Androzuk said she only drove the child to and from school for three of the four days he attended, and thought he had missed one day although she could not remember which day that was. She did recall however, the last time he rode her bus.

There was no school on the Friday of that week and the last time she drove the child was a Thursday. [ 6 ] On that last day, Ms. Androzuk said that the Chinese lady was there when she picked up the child. In her view, neither the woman nor the child looked happy; the child was not smiling. The child had not wanted to be hugged or kissed goodbye. She said the child had a tuque, pulled down low over his forehead. Ms. Androzuk, whose first language is Polish, described him as having a "very long hat". [ 7 ] Ms. Androzuk chatted with the child as she was buckling him into his seat.

Her evidence was that she raised his tuque higher so that she could see his eyes as she chatted with him. When she did this, she saw a large dark blue bruise all across his forehead and Ms. Androzuk showed with gestures, and pointed to her own forehead, to an area that extended right across the forehead. [ 8 ] Ms. Androzuk was shocked by the bruise and said to the child "oh my God! What happened to you?" She then said "who did it for [sic] you? Mummy? Daddy?". She testified that in saying this she was asking what had happened to the child.

She said the child raised his eyes, looked at her and said three times "auntie, auntie, auntie". At the time, Ms. Androzuk did not know who "auntie" was and was not even aware that the child was a foster child who had been taken into care by the government. [ 9 ] Ms. Androzuk said she also asked the Chinese lady what happened and was told only that the child hurt himself. [ 10 ] When Ms. Androzuk drove the child home after school that day, she thought he did not want to get off the bus and go home. Her evidence was that he grabbed her legs and held onto them.

She had other children to drop off and told him he had to go home. She said this had never happened to her before. She said he said while he held her legs that he missed his Mum and Dad. She took his hands off her legs and delivered the child to the blonde woman who walked the child into the house. [ 11 ] Ms. Androzuk said she told the principal, Monica Lukas about the experience. She thought she did this after she got the children to school on that last day. She told Ms.

Lukas that she had never seen a bruise like the one she saw on the child, that the child was very afraid and crying and that she did not like the situation at all. Positions of the Parties: [ 12 ] The Crown acknowledged that what the child said is hearsay but argued that it can be admitted under the principled approach – that is it meets the tests of both necessity and reliability. Necessity is easily established because the now dead child cannot testify.

They argued that reliability is also established on a balance of probabilities because the child's statement was made in circumstances which make it inherently trustworthy: the statement was unprompted and spontaneous, made in the child's own words, and made without prompting by the bus driver. The timing was the day before his death and is corroborated by other evidence that he did have significant

bruising on the day in question. Because it meets the test for admission on a balance of probabilities, the Crown urged that the child'sstatement be admitted for its truth. They pointed to other evidence which indicates that the child called the Accused ‘Auntie' and say thatthe child's words indicate that it was the Accused who caused the bruise on the child's forehead the day before his death. [13] The Defence agreed that necessity is found but argued that the statement is not spontaneous. The response was provided inanswer to a specific question put by the bus driver.

Further, they argued that the bus driver is somewhat difficult to understand and itmust be borne in mind that the child had language delays. They said the question was asked in the context of the lifting of the toque andin circumstances in which the foster mother had just brought the child to the bus. It is not clear what the child understood from thequestion asked and this reduces the reliability of the statement. Further, the Defence argued that Ms. Androzuk's evidence was notreliable, pointing to the fact that Ms.

Androzuk was certain the child had missed one day of school while the teachers and principaltestified that the child attended on each of the school days that week. Ms. Androzuk's evidence also differed from that of the principal asto when the principal was told of the incident. Because the evidence of Ms. Androzuk of what was said was unreliable and the meaningof what the child was reported to have said was uncertain, the Defence urged that the child's statement not be entered for its truth. Discussion and Decision: [14] A.B.'s statement to Ms. Androzuk clearly constitutes hearsay.

As such, it is presumptively inadmissible. It is undisputed thatthe statement does not fall within one of the traditional exceptions to the hearsay rule and it can only be admitted under the principledapproach to admission of hearsay. That is, the Crown must establish the dual criteria of necessity and reliability on a balance ofprobabilities: R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787 at para 47. [15] Because the child has passed away, necessity is obviously made out in this case, as is admitted by the Defence. The real issueis whether the statement is reliable. [16] In R. v.

Blackman, 2008 SCC 37 , [2008] 2 S.C.R. 298, the Supreme Court of Canada provided its most recentguidance on application of the principled approach to admission of hearsay. In assessing reliability, the Court described the task of thetrial judge as the search for indicia of trustworthiness sufficient to displace the general exclusionary rule: para 38. [17] I am directed to consider all relevant factors, including the presence of supporting or contradictory evidence.

I am required aswell to tailor the scope of the admissibility inquiry to the particular dangers presented by the evidence: Khelawon, at para 4. [18] As Charron, J. speaking for the Court explained in Blackman, the Court determined in Khelawon, at paras. 50-55, that thedistinction between admissibility of evidence at the stage of threshold or ultimate reliability outlined in R. v. Starr 2000 SCC 40, [2000] 2 SCR 144 created much confusion in the law and that portion of the analysis in Starr was revisited.

At paragraph 55,the Court held that: the relevant factors to be considered on an admissibility inquiry cannot invariably be categorized as relating either to threshold orultimate reliability. Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature ofthe statement and the available means, if any, of overcoming them. [19] As a consequence, R. v. White 2006 ABQB 888 and R. v. Nguyen 2001 ABCA 98, relied upon by the Defence, must beviewed with some caution. Both pre-dated the Supreme Court's decision in both Khelawon and Blackman.

As the Supreme Court hasnow made clear, confirmatory circumstances other than those connected with the circumstances in which the statement was made maybe considered in the assessment of reliability. [20] In assessing the reliability of the statement made, my task at a voir dire is to consider only whether the statement is admissiblefor its truth. Whether or not the statement will or will not be ultimately relied upon in deciding the issues, is a question for the conclusionof this trial. [21] The factors I have considered are the following.

[ 22 ] The timing of the statement is significant. It was made when A.B. got on the bus at about noon on January 25. The mark on the child's forehead was new. Ms. Gee's evidence was that she saw the bruise and what she termed a welt on A.B.'s forehead when she found him asleep in the garage that morning sometime after 7:00 am. She had not seen that bruise before. Staff at his school also saw the child's bruised forehead on Thursday, January 25 and had not seen the bruise the previous day. I am satisfied that the statement A.B. made occurred very close in time to the event that caused the bruise.

Contemporaneity increases reliability. There was little that could have occurred in the short time period to influence A.B.'s memory of the event. [ 23 ] A.B.'s mental capacity and level of maturity are also relevant, particularly his ability to attend to and understand things said to him and his ability to respond. There is little doubt that A.B. had some language delays. Various individuals have indicated that he had some difficulty speaking and Ms. Choy apparently told many of the professionals involved with the child that she had concerns about delayed speech.

However, at the time of his death, there had been no diagnosis made of what, if any, condition A.B. suffered from and there had been no formal assessment made of him other than a preliminary screening assessment done on December 12, 2006 by Lori Desjarlais for the Head Start program the child was enrolled in for a brief period. Ms. Desjarlais said the child's score was 43 out of 100 and called this "a bit low". The test covered a number of aspects of the child's development, including motor skills. However, it clearly had a language component.

This included showing the child pictures of objects that he was asked to identify. She gave as an example the word ‘ladder' and said that A.B. was able to point to the picture of a ladder but could not say the word nor explain that it was used to climb on. Heather Roberts, the speech pathologist at the child's second school, agreed that he had obvious speech delays but she was of the view that A.B. could follow simple instructions and could make his needs and wants known. She said he used a combination of words, gesture, body language and facial expressions to do so. [ 24 ] Ms.

Gee, the nanny, said she thought the child had a bit of a speech impediment. However, she had no difficulty understanding him and thought he understood her when she spoke to him. Both of the other nannies also said he was a bit hard to understand but none testified to any difficulty in A.B's understanding of what was said to him. All of the several school personnel who had contact with the child in the few weeks before he died found the child quiet and described him as not talking much and being rather hard to understand. However, all of them could understand him and thought he responded appropriately.

Three other foster children from one family were in the home during part of the time that A.B. was there and each of them testified that they could understand him and that they thought he understood them. [ 25 ] Three witnesses had quite specific memories of discussions with A.B. Corissa Perrault, the social worker who aided in A.B's apprehension and personally transported him to the Accused's residence for foster care, testified that she spoke to him throughout the hour she spent with him in early December 2006. Her testimony was that he kept repeating during the journey that he was going to his Dad's.

However, when they pulled up in front of Ms. Choy's residence, she said he started to cry and said "This isn't my Dad's house. I want to go to my Dad's house". Bev Harbison, the support worker for Ms. Choy as a foster mother made several visits to the home while A.B. was there. She recalled speaking to the child on January 3, 2007. He showed her his bedroom and commented both that the sun was shining that day and that Ms. Choy's daughter, who was also three at the time, was angry today. Ms. Harbison recalled that Ms. Choy's daughter was screaming about her bath at the time.

Lynn Moroz, another foster mother who cared for A.B. during the 2006 Christmas period when Ms. Choy was away, also gave specific evidence about A.B.'s ability to communicate. She recalled that the child had corrected her when they were singing a song and made a mistake on the lyrics. She also recalled his correcting her when they were in the car. She commented that there was a bus and he corrected her saying "No. There's a big bus." [ 26 ] From this evidence, I am satisfied that the child did understand what was said to him, even though he sometimes could not articulate a clear response.

His language delays did not disable him in general, from understanding a question or a comment put to him or from responding appropriately. [ 27 ] The means by which the statement was elicited is also relevant. If the child correctly understood that Ms. Androzuk was asking him what had happened to cause the bruise on his forehead, her question was phrased in such a way as to suggest it had not occurred by accident. In asking the question the way she did, Ms. Androzuk suggested that ‘someone' was responsible for the bruise.

Although the child rejected the two suggestions she made and answered ‘auntie' instead, her question did to some extent suggest an answer. I may, I think, take judicial notice of the fact that toddler children are suggestible. [ 28 ] There is no issue here with respect to possible fabrication. Neither Ms. Androzuk nor A.B. had any motive to lie. In addition Ms. Androzuk was available for cross examination and was extensively cross examined by counsel for the Defence and was not shaken in terms of what she said she heard.

I am satisfied that she gave a truthful rendition of what young A.B. said to her and the circumstances in which he said it.

[ 29 ] Nor is there any reason to be concerned that A.B. deliberately lied to Ms. Androzuk. He was only three. Most children of that age lack guile and based upon the evidence I have heard respecting his delayed speech and delayed development, I am satisfied that A.B. was likely incapable of a deliberate attempt to deceive. He responded truthfully to the question. [ 30 ] Ms. Androzuk was not mistaken in her memory of what A.B. said to her.

While it is true, as the Defence points out, that she was mistaken in her memory that A.B. missed one day of school on the week he died, she could not be shaken on cross examination in terms of what the child said to her. [ 31 ] There is corroborative evidence as well, in the child's refusal to be hugged or kissed by Ms. Choy when he got on the bus and in the reaction the child had when being returned home by the bus driver after school. He held onto her legs and did not want to leave. Ms. Androzuk's testimony was that he had never done that previously.

The corroborative effect of this action is not lessened, in my view, by the fact that it was Ms. Gee, and not Ms. Choy who was waiting to take him into the house when he got off the bus. The evidence was that the two women shared the care of the children, with Ms. Gee being in charge only when Ms. Choy was at work. [ 32 ] That Ms. Androzuk's question suggested that someone had done something to A.B. to cause the bruise must, of course, be considered in assessing the reliability of the statement. What was suggested to him was that the bruise did not occur by accident.

However, in my view, any suggestion in the question is largely if not completely negated by the fact that in his response, A.B. rejected both of the suggestions provided and answered "auntie, auntie, auntie." [ 33 ] What does concern me is the real possibility that A.B. misunderstood the question he was being asked. While, as I have already indicated, I do not think that his speech limitations greatly affected his ability to understand what was said to him and to respond appropriately, A.B.'s youth may have made it difficult for him to understand Ms. Androzuk's question.

I had no difficulty in understanding her but Ms. Androzuk does have a marked accent and does make grammatical errors when speaking English. The context in which the question was asked is important. Ms. Androzuk had just lifted the child's tuque, exposing his forehead and the bruise. The questions she asked A.B. were "what happened? Who did this for you? Mummy? Daddy?" The bruise was shockingly obvious to Ms. Androzuk but there is no way of knowing if A.B. was even aware that he had a large bruise on his forehead.

It likely hurt and he likely recalled being injured but was he aware that the results of his injury were evident to anyone who looked at his forehead? It is difficult to know how A.B. interpreted the question he was asked. If he did realize his forehead was bruised, did he interpret the question as one about what had happened to him to cause the bruise or did he interpret it as one about who had pulled the tuque so low on his forehead? Did he have some other idea of what Ms. Androzuk was asking? Ms.

Androzuk's use of the preposition 'for' in place of the grammatically correct ‘to' could also have confused A.B. [ 34 ] A.B.'s unavailability for cross examination makes it impossible to test what he understood by the questions and also poses limitations on my ability as the trier of fact to properly assess its worth. [ 35 ] The statement should not be admitted. It is certainly possible that in his response, A.B. was telling Ms. Androzuk who was responsible for administering a blow that caused the extensive bruise on his forehead.

It is also possible, in my view, that he was responding to the question about who had put on his tuque so that it almost obscured his eyes. Capable as it is of more than one inference, it would be dangerous to admit the evidence for its truth. Heard on the 4 th through 29 th days of April, 2011. Dated at the City of Edmonton, Alberta this 4 th day of May, 2011.

D.C. Read J.C.Q.B.A. Appearances: Allison M. Downey-Damato for the Crown Mona T. Duckett QC for the Accused