R. v. Dias, 2023 BCSC 527

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Dias, 2023 BCSC 527 Date: 20230105 Docket: 32027-2 Registry: Vancouver Between: Rex v. Garcia Ribeiro Dias Restriction on Publication: A publication ban has been imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, referred to in this judgment. This publication ban applies indefinitely unless otherwise ordered.

Before: The Honourable Justice MacNaughton Reasons for Judgment ( Voir Dire #2: Crown Application for Admission of the Complainant’s Videotaped Statement) Counsel for the Crown: M. Myhre Counsel for the Accused: M. Ritzker Written Submissions from the Crown: July 14, 2022 Written Submissions from the Defence: November 23, 2022 Place and Date of Hearing: Vancouver, B.C. August 8–11, 2022 November 28, 2022 Place and Date of Judgment: Vancouver, B.C.

January 5, 2023 Table of Contents Introduction .. 3 Circumstances of the Alleged Offences .. 4 Evidence on the Voir Dire .. 4 The Videotaped Statement 5 The Principled Exception to the Rule Against Hearsay .. 6 Necessity . 8 Analysis . 11 Conclusion . 15 Reliability . 16 Procedural Reliability . 16 Substantive Reliability . 17 Analysis . 23 Conclusion . 33 Probative Value versus Prejudicial Effect 34

Analysis . 34 Conclusion . 35 Conclusion on Admissibility .. 35 Introduction [ 1 ] The accused is charged with one count of sexual assault, contrary to s. 271 of the Criminal Code , R.S.C. 1985, c. C-46 , and two counts of touching a person under the age of 16 for a sexual purpose, contrary to s. 151 of the Criminal Code .

He pled not guilty to all counts. [ 2 ] The Crown seeks a ruling that the January 24, 2019, videotaped statement of the complainant, I.L., to then Detective Scott Rotherham (“Statement”) is admissible for the truth of its contents, pursuant to the principled exception to the rule against hearsay. [ 3 ] To succeed, the Crown must satisfy this Court that admission of the Statement is necessary and that it meets the reliability threshold. [ 4 ] The Crown submits that despite reasonable efforts, I.L.’s evidence is not available.

Furthermore, the Statement is procedurally reliable, as it can be sufficiently tested in court despite the absence of an oath, in-person testimony, or cross-examination. According to the Crown, I.L.’s Statement is also substantively reliable because she had no motive to lie and was not improperly influenced by her grandmother and guardian, Y.L. [ 5 ] The defence opposes admission of the Statement on the basis that the test for the principled exception to the rule against hearsay has not been met.

In broad terms, the defence submits that its admission is not necessary because there is no independent or psychological evidence establishing that I.L. would be further traumatized by testifying. Y.L.’s evidence on this issue is unreliable, not credible, and ultimately insufficient to establish the unavailability of I.L.’s evidence.

On the issue of reliability, the defence primarily challenges the sincerity of I.L.’s Statement on the basis that she had been induced to fabricate her allegations by Y.L. [ 6 ] The need for this ruling arose because I.L. did not testify at this trial and, therefore, did not adopt her videotaped Statement as the Crown expected she would do. As a result, it could not be admitted under s. 715.1 of the Criminal Code . A voir dire was held to determine the admissibility of the Statement.

Circumstances of the Alleged Offences [ 7 ] Y.L. is the complainant I.L.’s grandmother and, from shortly after I.L.’s birth, has been her guardian.

The accused, Garcia Dias, was Y.L.’s long-time friend and was like a grandfather to I.L. [ 8 ] Briefly, the Crown alleges that the sexual assault and touching for a sexual purpose occurred between January 1, 2018, to December 17, 2018, at Y.L.’s home in Vancouver while I.L. was in the care of the accused. [ 9 ] The Crown also alleges that while Y.L., I.L., and the accused were on a trip to Lima, Peru between December 18, 2018, and January 6, 2019, the accused touched I.L. for a sexual purpose.

Evidence on the Voir Dire [ 10 ] During the voir dire , I heard evidence from Detective Constable Krista Parry, who monitored an interview conducted by now Staff Sergeant Rotherham with I.L. and who, together with another officer, arrested and charged Mr. Dias. [ 11 ] I also heard from Detective Constable Conrad Nemeth, who worked with the major crimes and forensic interview team at the Vancouver Police Department. He conducted an interview of the accused after his arrest. Part way through a voir dire on the admissibility of Mr.

Dias’s statement to the police, the defence conceded voluntariness and agreed that his statement was admissible in its entirety. [ 12 ] I heard evidence from Staff Sgt. Rotherham about his interview with I.L. At the time of the interview, he was a detective in the Police Department’s sex crimes and child abuse unit. Through him, a copy of the videotaped Statement was introduced. [ 13 ] Finally, and briefly, I heard evidence from Y.L. about I.L.’s disclosure to her of the alleged sexual misconduct by Mr. Dias in Peru, how Y.L. confronted Mr.

Dias with the allegations and had I.L. tell him what she said he had done, the steps Y.L. took to report it to the police on their return to Vancouver, her description of I.L.’s emotional state after the events, the circumstances of her surreptitious recording of a conversation she had with Mr. Dias, and the various steps Y.L. took to persuade I.L. to testify at this trial. The Videotaped Statement [ 14 ] As set out, Det. Rotherham interviewed I.L. on January 24, 2019, at a Child and Youth Advocacy Centre, a specific police building in which the officers are not uniformed. He interviewed her in a “soft” room.

The interview was videotaped, and a transcript of

the Statement was prepared. A DVD of the interview was played in court, and the DVD and a transcript of it were marked as exhibits onthis voir dire together with certain drawings made by I.L. during the interview. The interview started at about 1:18 p.m. and concluded atabout 3:33 p.m. [15] Having reviewed the DVD and the transcript, Det. Rotherham asked open-ended questions throughout without suggestinganswers. Early on, he made efforts to put I.L. at ease, and he used a friendly non-threatening tone.

He was able to develop a good rapportwith I.L. during the interview. [16] Detective Rotherham began by introducing himself as “Scott” and explained that he was a police officer. He drew the room’scameras to I.L.’s attention and told her that the interview was being recorded. He told her that if he got something wrong, she was tocorrect him. She was not to guess at her answers. If she did not remember the answer to a question or did not know the answer, it wasokay to say so.

He also told her that if she did not understand something he said, she should ask for it to be explained. [17] Detective Rotherham explained the importance of telling the truth, and I.L. understood and promised to tell him the truth. I.L.said that Y.L. (whom she calls “Tita”) had told her that she was there to talk about what someone named “Garcia” did to her. She saidMr. Dias was her neighbour. Towards the end of the interview, I.L. confirmed that she had told the truth, “100 percent, more than 100percent, a million percent”. [18] As the interview unfolded, I.L. said that Mr.

Dias began touching her in the summer of 2018 in the apartment she lived in withher grandmother, mother, and brother. She described how Mr. Dias would “play” with her and touch her legs and private parts while shewas in a hiding spot she and her brother made with a blanket in the living room. She said that she tried pulling his hand out “so that [she]could keep [her] body to [herself]” but that he was too strong for her. She said it happened every time Mr. Dias came to her house andwas close to her; she estimated that it happened ten times. She described how it bothered her very much and she tried to stop him.

Shesaid that she was scared that her grandmother would be angry at her if she said anything, as her grandmother was always angry at her. [19] I.L. also said that Mr. Dias touched her when she and her grandmother were in Peru with him. When her grandmother wasshopping or sleeping and she was alone with Mr. Dias, he was touching her. She said it was worse in Peru. [20] At first, I.L. told Det. Rotherham that Mr. Dias only touched her over her clothing. Later in her Statement, she said it alsohappened under her clothing but not every time.

She estimated that he had touched her about five times in Peru, three of which wereunder her clothing. [21] I.L. described that Mr. Dias would start touching her legs and then move up to her private parts. She said she tried to pull hishand off. In Peru, he pressed down on her private parts using three fingers, and she described it as a lot of pressure. She said it hurt butdid not bleed. She got some tissues, put cold water on them, and put them on her private parts. [22] I.L. described how she finally told her grandmother, who was very angry at Mr. Dias. After they returned from Peru, she neversaw Mr.

Dias again. The Principled Exception to the Rule Against Hearsay [23] As a general rule, all relevant evidence is admissible. However, hearsay is presumptively inadmissible because of the inability totest its reliability. Without the maker of the statement in court, there is a concern about the court’s ability to get at the truth because ofthe inability to test the perception, memory, narration, or sincerity of the declarant: R. v.

Bradshaw, 2017 SCC 35 at para. 20, citing R. v.Khelawon, 2006 SCC 57 at para. 2. [24] However, in some circumstances, the concern with respect to admitting a hearsay statement may be minimized such that itsexclusion would actually present a greater impediment to getting at the truth: Khelawon at para. 2. As a result, over time, exceptions tothe general rule excluding hearsay have developed. One of those is what has been called the principled approach to admission or theprincipled exception. [25] The starting point for the principled exception is R. v. Khan, [1990] 2 S.C.R. 531, [Khan 1990].

There, theCrown sought to adduce an out-of-court statement made by a three-and-a-half-year-old complainant, approximately 15 minutes after analleged sexual assault. [26] Justice McLachlin (as she then was) described the approach to determining the admissibility of such statements at 546–547: 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 evidencebased on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. Theremay 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 thechild, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement may berelevant on the issue of reliability.

I would not wish to draw up a strict list of considerations for reliability, nor to suggest that certaincategories of evidence (for example the evidence of young children on sexual encounters) should be always regarded as reliable. Thematters relevant to reliability will vary with the child and with the circumstances, and are best left to the trial judge. [Emphasis added.] [27] The Supreme Court confirmed these key elements of necessity and reliability in Khelawon at para. 2. [28] Even where the two criteria of the principled exception are met, the trial judge may exclude hearsay evidence where its probative

value is outweighed by its prejudicial effect: Khelawon at para. 49. Necessity [29] Necessity refers to the unavailability of non-hearsay evidence. The circumstances that amount to necessity are flexible, “capableof encompassing diverse situations”: R. v. Smith, [1992] 2 S.C.R. 915 at 933–934, . What the situations have in commonis that the relevant direct evidence is not, for a variety of reasons, available: Smith at 934. The necessity criterion is founded on society’sinterest in getting at the truth: Khelawon at para. 49.

It is not always possible to meet the optimal test of contemporaneous cross-examination: Khelawon at para. 49. Rather than losing the value of the evidence, it becomes necessary in the interests of justice toconsider whether it should, nonetheless, be admitted in its hearsay form. [30] According to R. v. Rockey, [1996] 3 S.C.R. 829, , citing to R. v.

Kahn (SCC), [1990] 2 S.C.R.531 at p. 546, necessity with respect to child witnesses can be established in four ways: [20] … if “the child is incompetent to testify, unable to testify, unavailable to testify, or if the trial judge is satisfied, “based onpsychological assessments, that testimony in court might be traumatic for the child or harm the child…” … [Emphasis added]. [31] These categories are not impermeable or preordained; the necessity analysis must be approached flexibly with a holistic view tothe circumstances of the case: R. v. F. (W.J.), [1999] 3 S.C.R. 569, at para. 36.

The ultimate question is whether, on thewhole, the “evidence is not forthcoming with reasonable effort”: F. (W.J.) at paras. 36, 40, 44–45. The flexibility inherent to thenecessity analysis reflects, among other factors, the reality that the Crown cannot use many of the legal remedies available for unhelpfuladult witnesses against children, such as declaring them hostile or finding them in contempt: F. (W.J.) at para. 30, citing R. v. F. (W.J.),168 Sask R. 251 at 265, (C.A.), Jackson J.A. dissenting. [32] A permanent and absolute refusal to testify satisfies the necessity requirement.

In refusing to testify, the witness—similar to arecantation—holds the evidence “hostage”: R. v. Rowe, 2021 ONCA 684 at para. 42, citing R. v. B. (K.G.), [1993] 1 S.C.R. 740 at 799,. Necessity is met if the evidence is unavailable, regardless of whether the witness is physically locatable: R. v. Parrott,2001 SCC 3 at para. 64. Availability of the witness is not a “death knell” to necessity: R. v. Adam, 2006 BCSC 1355 at para. 119, citingDavid Layton, R. v.

Pilarinos: Evaluating the Co-Conspirators or Joint Venture Exception to the Hearsay Rule, (2002) 2 C.R. (6th) 293at 310. [33] However, the court must be assured that there is no reasonable possibility of the witness testifying—even with the threat of oractual citations for contempt: R. v. Becchina, [1995] O.J. No. 1229 at paras. 80–81; R. v. R. R., 2003 SCC 4 at paras. 3–4. Necessity ismet if the witness is “not merely ‘likely not’ but rather ‘absolutely not’” going to cooperate: Adam at para. 121. It is insufficient for thewitness to be “likely adverse or disinclined” to testify: R. v.

Pelletier, 1999 BCCA 678 at para. 41. [34] Beyond refusal to testify, the possibility of trauma may also render the evidence unavailable and satisfy the necessityrequirement. The Supreme Court in Rockey said: [28] … The argument for the appellant on trauma suggested that only the most severe trauma could justify a conclusion of necessity. Irespectfully disagree. Mere discomfort is insufficient to establish necessity. But where there is evidence, as here, that an alreadytraumatized child might be further traumatized by being questioned by strange men in a strange situation, that suffices.

The Court is notrequired to wait for proof of actual harm to the child. [Emphasis added.] [35] Three years later in F. (W.J.), the Court elaborated on the evidence required to establish necessity on the basis of trauma,concluding that either intrinsic or extrinsic proof is sufficient for the court to assess whether the evidence is reasonably forthcoming. [36] In F. (W.J.), the Crown appealed the accused’s acquittal for sexual assault of a five-year-old girl. At trial, the child was called totestify. She responded to some preliminary questions, but then went quiet and would not verbally respond to any questions.

The trialjudge, upheld by the Saskatchewan Court of Appeal, ruled the statements inadmissible because the Crown had not presented evidenceabout why the child failed to testify and had, as a result, not established the necessity requirement under the principled exception: F.(W.J.) at para. 24. [37] Justice McLachlin, writing for the majority of the Supreme Court of Canada, concluded that, given what occurred in court, therewas ample evidence that the child was too emotionally traumatized to testify, and necessity was clearly made out: para. 47. [38] At paras. 37–41, McLachlin J. wrote that there was no rule that evidence must be called on the issue of necessity; it might be“self-evident”, that is, apparent from the circumstances, that a child cannot give “meaningful” evidence.

This conclusion was affirmed inR. v. Robinson, 24 C.R. (6th) 195, (Ont. C.A.), leave to appeal to SCC ref’d, 33801 (November 25, 2010). There, thecourt confirmed that Khan did not import the strict requirement of a psychological report to the necessity analysis: para. 45.

However, itwould be a “rare case” for necessity to be made out without expert evidence or the trial judge’s firsthand observation of the child’sreaction to questioning: para. 45. [39] The flexibility in the necessity analysis reflects the need for particular sensitivity regarding the evidence of children, theproblems they may face in giving their evidence, and the need to get children’s evidence before the court if justice is to be done: F.(W.J.) at para. 42.

This was also highlighted in Justice L’Heureux-Dubé’s concurring reasons in F. (W.J.), where she quoted from thenProfessor (now Justice) David Paciocco that “recognizing the trauma of child testimony of sexual abuse lies within ‘the sharedcognizance of all of those of us who walk on this planet’”: para. 16, citing David M. Paciocco, “The Evidence of Children: Testing theRules Against What We Know” (1996), 21 Queen's L.J. 345 at 392.

[ 40 ] Even if there is no expert evidence on risk of trauma or observation of the child in court, the entirety of the circumstances may suggest necessity is met. The child’s evidence may be necessary due to the passage of time since the statements, the child’s age, or obstacles to obtaining the evidence, such as possible trauma and refusal or inability to speak or recall the events: see e.g., LSJPA – 1943 , 2019 QCCQ 6624 at paras. 35–38 ; R. v. J.D.B. , 2015 BCSC 2521 at paras. 43–45 ; LSJPA – 201 , 2020 QCCA 17 at para. 31 , citing S.L. v. R. , 2010 QCCA 124 at para. 22 .

In such cases, admission of the statements is necessary to get at the truth. Analysis [ 41 ] In this case, Y.L. testified that I.L. refuses to attend court because I.L. believes that doing so would adversely affect her mental health. The Crown relies on Y.L.’s testimony as sufficient evidence that I.L. would be further traumatized if forced to testify. [ 42 ] In addition, the Crown explained the various steps it took to persuade I.L. to testify.

Those steps included: obtaining an order for witness accommodation so that I.L. could testify from a separate location accompanied by a court dog and its handler; arranging for I.L. to meet the court dog and handler in advance; and scheduling for I.L. to be taken to the Vancouver Law Courts to see where the trial would be held and from where she would testify. Counsel for the Crown also met with I.L. to prepare her to testify and, later, to discuss her unwillingness to do so. [ 43 ] The defence opposes the admissibility of the Statement on the basis that Y.L.’s evidence is insufficient to establish necessity.

The defence submits that Y.L.’s description of I.L.’s trauma is hearsay itself and replete with inconsistencies, and thus evidence from I.L.’s therapists, teachers, or mother is required. [ 44 ] As a preliminary matter, the defence raises the application of the Canada Evidence Act , R.S.C. 1985, c. C-5 , to the necessity analysis. It relies on the Supreme Court of Canada’s discussion in Khan and Rockey of the now-repealed s. 16 of the Canada Evidence Act , and submits that I.L.’s videotaped Statement is inadmissible without corroborating material evidence.

However, in both of those cases, s. 16 was considered because the child’s testimonial incompetence gave rise to the necessity of hearsay evidence. That is not the case here. The present application arises because I.L. refuses to testify. In any event, s. 16 no longer applies. [ 45 ] I find that I.L.’s evidence is unavailable and thus that the Statement is necessary. The circumstances, as set out by Y.L. and the Crown, demonstrate that I.L. refuses to testify despite reasonable efforts.

No further expert or lay evidence is required for me to reach this conclusion. [ 46 ] I.L. was eight-years-old when the alleged abuse started, and she was traumatized by it. On the evidence before me, it is clear that after I.L. returned from her trip to Peru with her grandmother and the accused, she was traumatized. About two months after her return, I.L. drew a tombstone with flowers. When Y.L asked her about it, I.L. explained, “[i]t’s my tomb. I’m resting in peace. Because I’m dead. After what happened, this is what I am”. Y.L testified that I.L. was crushed. She testified that I.L.: used to be very happy.

Dancing, singing, acrobatics in the living room. When we came back, she was like a dead person. She had a nervous tick in her neck, stomach problems, sweaty hands, she couldn’t remember things, her teacher sent her for therapy. She had panic attacks in class and she would go to the rabbits’ room. [ 47 ] Y.L. tried to help I.L. deal with the trauma. She testified that she took I.L. to two different therapists in 2019, but they did not work out.

She has not been involved with therapists since. [ 48 ] As I have explained, the Crown took extraordinary steps to prepare I.L. to testify. [ 49 ] After attending the courthouse, I.L. was unhappy about having to recall what happened to her. Y.L. testified that I.L. said, “when it took me almost four years to forget what happened, now you take me there, like going back to the past”. Shortly afterwards, I.L. started to tell Y.L. that she would not go to court. She said she was not going, she was scared, and she did not want to see Mr. Dias.

Y.L. testified that she explained that I.L. would not have to see the accused, but I.L. said that he was going to see her, and she would have to talk about what he did to her. [ 50 ] When I.L. refused to attend court, Y.L. and the Crown tried repeatedly to persuade her to testify, short of physical coercion. Y.L brought up the subject of court every other day. The Crown visited their home and met with I.L. for an hour. The Crown made suggestions through Y.L. to try to make testifying less frightening, including suggesting that she might be able to testify from her home.

Y.L. testified that I.L said, “its not the point where I testify, but that I will have to talk about this, and I don’t want to talk about it for my mental health, and he will hear what I am saying”. [ 51 ] Y.L was asked if she could force I.L to attend court. She testified that she did not see picking her up and dragging her as a viable option. Y.L. was asked whether she would object to the police attending to bring I.L. to court.

She responded, “Are you serious?” [ 52 ] Y.L. was asked if she could think of anything else that could be done to persuade I.L. to testify, and she suggested that if the support worker with the dog attended their home, I.L. might testify from there. The following day, Y.L. testified that she and the Crown arranged for the support worker and the dog to attend, but when she brought it up with I.L., I.L. said, “You are forcing me. You don’t care about my mental health”. [ 53 ] During cross-examination, the defence did not challenge Y.L.’s evidence about her efforts to get I.L. to testify.

Perhaps, this was because at the end of the evidence on the voir dire , the defence conceded that necessity was made out. The defence position changed in the written submissions.

Nonetheless, Y.L.’s evidence stands unchallenged. [ 54 ] Now, the accused submits that necessity cannot be made out without extrinsic evidence on the risk of re-traumatization from mental health experts, I.L.’s teachers, or her mother. [ 55 ] However, this argument is inconsistent with F. (W.J.) at para. 41, where McLachlin J. states that necessity “may arise either from the facts and circumstances of the case as revealed to the trial judge, or from evidence called by the Crown”. Although in many cases the

evidence of likely trauma comes from a psychologist, there is no absolute requirement for one to testify: Robinson at para. 45 . Necessity can be met if it is “self-evident” that the child’s evidence is not available: F. (W.J.) at para. 39. [ 56 ] There is, in my view, good reason for the necessity criterion to be flexible. The principled exception is intended to help courts get at the truth in a wide variety of circumstances that might arise and in which evidence is unavailable: Khelawon at para. 49 .

Where there is evidence that an already traumatized child might be further traumatized by testifying, that will suffice. [ 57 ] This is a case in which it is self-evident. I.L. is now 11 years old, and is a bright and articulate child. It is her belief that testifying would harm her. In that respect, this case is unlike Robinson , where the information before the court came from an uncooperative guardian who was prepared to lie under oath. The situation here is more like the situation in F. (W.J .), except that I.L. is old enough to articulate what she believes.

I.L. is now three years older than she was when she gave her Statement. She is now asserting herself and refuses to come to court because she believes it would not be good for her to do so. [ 58 ] On the evidence, I.L.’s concern about further trauma from testifying is consistent with the trauma she experienced after her return from Peru.

I agree with Professor Paciocco’s comments, adopted by L’Heureux-Dubé J. in F. (W.J .), that “the trauma of child testimony of sexual abuse lies within ‘the shared cognizance of all of those who walk on this planet’”: para. 16. [ 59 ] I therefore accept that I.L.’s evidence is unavailable. It is unnecessary to definitively determine the reason ( F. (W.J.) at paras. 33, 44), but her refusal to testify, the possibility of trauma, the time elapsed since the Statement was made, and her age now and at the time of the Statement all indicate that her evidence is unavailable.

In my view, the Crown and Y.L. have met the standard of making reasonable efforts to have her testify. Everything short of physical or legal coercion has been tried, and neither is a realistic option for an 11-year-old child. [ 60 ] Even if I.L. could be forced to testify, the evidence would remain unavailable: R. v. R. M . -N. , 2021 ONSC 6234 at para. 110 . Given I.L.’s repeated concerns about her mental health, forcing her to testify and be cross-examined would likely result in her refusing to speak: R. M.-N. at para. 110 .

The Court would be in a similar situation as the court in F. (W.J.) , where the child complainant was brought to court but would not utter a word. [ 61 ] When this issue was first raised with me, the Crown remained optimistic that I.L. could be persuaded to testify. Instead, her position that she would not do so became firmer. On the evidence, an adjournment would serve no purpose. There is no evidence that, within a reasonable period of time, I.L. will change her mind and testify and, thus, no “reasonable possibility” that I.L. will be persuaded to testify with more time: R. R. at para. 4 .

The focus of the necessity analysis is on the unavailability of the evidence , not the unavailability of I.L.: Parrott at para. 64 ; R. v. Nepoose , 2021 ABCA 216 at para. 11 . [ 62 ] Given I.L.’s firm refusal to testify, it would be futile and inappropriate to force I.L. to attend, assuming the court could do so, only to be left in the same position; the evidence would remain unavailable. The court’s ability to get at the truth will be hampered without admission of the Statement.

Conclusion [ 63 ] I accept that the evidence before me is sufficient to conclude that I.L.’s evidence is unavailable despite reasonable efforts by the Crown and by Y.L. It is therefore reasonably necessary to admit I.L.’s Statement, so that I will have the benefit of her evidence. Reliability [ 64 ] At the admissibility stage, the trial judge is concerned with “threshold reliability”, that is whether the statement “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”: Khelawon at para. 49 .

This is contrasted with ultimate reliability, which refers to “the extent to which a statement should be believed and relied upon”: R. v.

Coban , 2021 BCSC 2297 at para. 34 . [ 65 ] There are two ways in which the reliability requirement can be met: a. by showing that there is a satisfactory basis to rationally evaluate the statement ( procedural reliability ): Bradshaw at para. 40 ; Khelawon at para. 63 ; or b. by ruling out alternative explanations for the statement, other than its accuracy and truthfulness ( substantive reliability ): Bradshaw at para. 40 ; Khelawon at para. 62 . [ 66 ] These two ways of establishing reliability work in tandem: Khelawon at para. 49 ; R. v. Furey , 2022 SCC 52 .

Procedural Reliability [ 67 ] Establishing procedural reliability ( i.e. , whether the court has sufficient information to evaluate the credibility of the statement) depends on whether there are adequate substitutes for the oath, in-person testimony, and contemporaneous cross-examination: B. (K.G.) at 795–796. [ 68 ] The most important of the three factors is the ability to cross-examine the declarant: B. (K.G.) at 794.

Nonetheless, the Court stated in its earlier decision in Smith at 935: … [I]t would be neither sensible nor just to deprive the jury of this highly relevant evidence on the basis of an arcane rule against hearsay, founded on a lack of faith in the capacity of the trier of fact properly to evaluate evidence of a statement, made under circumstances which do not give rise to apprehensions about its reliability, simply because the declarant is unavailable for cross- examination. Where the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not

admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis. [69] Videotaped statements may substitute for in-person testimony if they allow a trier of fact to observe important indicia ofcredibility, such as “the witness’s reaction to questions, hesitation, degree of commitment to the statement being made … [and] therelationship between the interviewer and the witness”: B. (K.G.) at 792; R. v. Groves, 2011 BCSC 1935 at para. 17.

Substantive Reliability [70] Under this requirement, the court considers both the circumstances in which the statement was given and the existence of anyextrinsic corroborating evidence: Khelawon at paras. 99–100; Bradshaw at para. 30. [71] In Bradshaw at para. 31, Justice Karakatsanis, writing for the majority, said that the standard for substantial reliability is high butdoes not require absolute certainty. She reviewed the various ways in which the Supreme Court had previously articulated the level ofcertainty required with respect to substantive reliability.

What all the articulations have in common is that the statement is “so reliablethat contemporaneous cross-examination of the declarant would add little if anything to the process” because of either the circumstancesit came about or corroborating evidence: Khelawon at paras. 49, 62, 107; see also Smith at 933, 937. [72] The following circumstances have been considered as potentially relevant in assessing substantive reliability, including in thecontext of admitting a child’s statement when they cannot testify:

a) Circumstances relating to the statement: a. whether the statement was casually made or formally to the police: Khelawon at para. 39; b. the timing of the statement in relation to the event(

s) reported: R. v. J.M., 2010 ONCA 117 at para. 54; and c. whether there was the presence or absence of leading questions or other forms of prompting leading to the statement: J.M. at para. 54.

b) Circumstances relating to the declarant: a. whether the declarant intended that their statement be acted upon: Khelawon at para. 39; b. whether the declarant had a motive to lie: J.M. at para. 54; c. the declarant’s condition when they made the statement: R. v. Hennie, 2019 QCCS 5170 at para. 35; d. whether the declarant is of unsavoury character: Bradshaw at paras. 68–69; e. the nature of the event(

s) reported: J.M. at para. 54; and f. is the likelihood of the declarant’s knowledge of the event is, apart from its occurrence: J.M. at para. 54. See also R. v. Clarke, 2013 MBQB 26 at para. 33, for a list of factors that go to a declarant’s sincerity, perception, memory, andnarration. [73] In R. v. F. (C.C.), [1997] 3 S.C.R. 1183, , the Supreme Court considered the evidentiary value of a child’svideotaped statement taken shortly after the alleged offence. Although F. (C.C.) is a decision with respect to the application of s. 715.1 ofthe Criminal Code, the Court’s comments are instructive.

In the course of his reasons, Justice Cory wrote: a) [19] It will be self-evident to every observant parent and to all who have worked closely with young people that children, evenmore than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later.The younger the child, the more pronounced will this be. …

b) at para. 23, citing Nicholas Bala and Hilary McCormack, “Accommodating the Criminal Process to Child Witnesses: L. (D.O.) andLevogiannis” (1994), 25 C.R. (4th) 341 at 343: … Children are also more likely to fully remember and relate often painful memories in a relatively relaxed interview than in the strange,stressful, and formal court environment.

c) At para. 24, citing House of Commons Debates, 2nd Sess, 33rd Parl., vol. I, 1986, November 4, 1986: … videotaping a complainant at a time closer to the incident will reflect more accurately the vocabulary and life experience of a child. … [74] R. v. D.M., 2007 NSCA 80 at para. 26, sets out a number of cases in which the court considered the full record of a child’sdisclosures as part of the circumstances in which the statement in question came about, and as a result, the credibility of the complaintmade by the child.

In this respect, the principled exception substantive reliability inquiry is consistent with cases on the “narrative ascircumstantial evidence exception to the hearsay rule”, which recognizes that the fact a prior complaint was made, the timing of thatcomplaint, and the explanation for the timing are all matters that may assist a trier of fact in assessing the reliability of a complainant’sevidence: R. v. Gill, 2018 BCCA 275 at para. 76. [75] That was the case in R. v. Khan, 2017 ONCA 114 at paras. 31, 32, 43, leave to appeal to SCC ref’d, 37534 (August 13, 2017)[Khan 2017].

A victim testified that an arresting officer touched her sexually several times during, what he said were, required searches.At the station, when another officer advised the victim that she needed to be searched, she protested that she had already been searched

three times: para. 6. The arresting officer was convicted of sexual assault. On the appeal, the main issue was the admissibility and usethat could be made of the victim’s statement to the officer at the station.

The Court of Appeal concluded that the trial judge had used thevictim’s prior consistent statement for the permissible purpose of evaluating the context in which the initial complaint arose: para. 40.This context assisted in assessing the truthfulness of the victim’s in-court evidence, in particular, the fact and timing of the complaint andthe spontaneous way in which it came out: para. 39. [76] In conjunction with the circumstances in which the statement was given, a court must consider corroborating evidence todetermine substantive reliability.

To be corroborative, the evidence must relate to material aspects of the statement (i.e., aspects relied onby the party seeking to introduce the statement for the truth of its contents) and show that the “only likely explanation for the hearsaystatement is the declarant’s truthfulness about, or the accuracy of, the material aspects”: Bradshaw at paras. 4, 45; see also R. v. U.(F.J.), [1995] 3 S.C.R. 764 at para. 40, . As I have said, absolute certainty is not necessary to establish substantivereliability, and a particular item of corroborative evidence is not considered in isolation: R. v.

Larue, 2018 YKCA 9 at para. 119, aff’d2019 SCC 25. [77] According to Bradshaw, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry: [57] … [A] trial judge should 1. identify the material aspects of the hearsay statement that are tendered for their truth; 2. identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case; 3. based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and 4. determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternativeexplanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of,the material aspects of the statement. [78] On the potential use of other statements to corroborate the tendered statement, Karakatsanis J. wrote, “To be relied on for thepurpose of rejecting alternative hypotheses for the statement, corroborative evidence must itself be trustworthy. ...

Trustworthinessconcerns are particularly acute when the corroborative evidence is a statement, rather than physical evidence”: Bradshaw at para. 50.Despite this caveat, the law is that an accused’s statement may be a source of corroboration: Larue at para. 111; U. (F.J.) at paras. 40,53. [79] In Bradshaw, the trial judge erred in admitting the re-enacted statement of a former co-accused, who had confessed in a Mr. Bigoperation and was arrested before the re-enactment.

The Court held that the co-accused’s evidence should not have been admitted due toinconsistencies in his statement, his motive to lie, his unsavoury character, and the lack of corroboration on material aspects of thestatement. The most significant proposed corroborative evidence was an inculpatory statement that Mr. Bradshaw made to the co-accused. The Court determined that the statement was insufficiently trustworthy as corroboration for the re-enactment because the co-accused was under significant pressure from a “criminal organization” (Mr. Big) to obtain an admission from Mr.

Bradshaw, and theinitial part of their conversation was obscured by the sound of a running tap. Mr. Bradshaw testified that, while the tap was running, hewas asked by the co-accused to lie and say that he was involved in the murders: paras. 79–80. [80] In the following cases, the reliability criterion was met where a child was unable to testify, on the basis of both the circumstancesof the statement and corroborating evidence: a.

Khan 1990, in which the combination of the timing and spontaneous nature of the child’s statement, the absence of a motive to lie,the fact that what she described was outside the experience of a child of her age, and the fact that her statement was corroborated bysemen on her clothing, alleviated any concerns that the statement was untrue: Khelawon at para. 67. b. R. v. T.B.M., 2011 BCSC 1828, in which the three-year-old complainant told his mother that the accused babysitter “stuck his wienerin my bum”: para. 13. At trial, the then seven-year-old boy had no recollection of the incident.

Reliability was established because thestatement was made spontaneously, at a time when the child was seeking comfort from his mother due to pain, without anything havingbeen suggested to him, and on corroborative evidence of anal injuries and soreness when sitting or defecating: paras. 66–69. c. LSJPA – 1943, in which there were positive and negative aspects with respect to the police interview. The officer talked about theimportance of the child telling the truth, and the child was calm and cooperative.

However, the officer was not entirely comfortable inEnglish, and the child did not always enunciate clearly, resulting in communication difficulties and leading questions. The statementswere found to be sufficiently reliable to be admitted. The court dismissed a discrepancy about the frequency of the abuse as being due toconfusion in the questions. The court said the child had no reason to fabricate, she was fond of her brother and liked what he did, andthere were no inconsistencies between the statements. d.

J.D.B., in which the court found that threshold reliability of the child’s videotaped statement was established because the interviewwas not leading, the child clearly understood what it meant to tell the truth, the child had no motive to lie, and there was no sign the childhad been coached: paras. 49–50. The court reached this conclusion, even though it was difficult to understand everything the child saidand the child herself appeared to question whether she understood that she was required to tell the truth: para. 51. e.

Larue, in which the court upheld the admission of a videotaped and audiotaped statement made by the appellant’s girlfriend toundercover officers conducting a Mr. Big operation. Threshold reliability was established by a combination of procedural and substantivefactors, including the statements were recorded, the girlfriend was not manipulated or coerced, she had no motive to lie aboutMr. Larue’s involvement, and her statement was corroborated by DNA on the murder weapon, Mr. Larue’s own statements to theundercover officers, and the striking similarity between the girlfriend and Mr.

Larue’s statements: paras. 105–121. The court concluded,“the circumstances and corroborative evidence provide a rational basis to rule out any plausible explanations for her statements otherthan her truthfulness, on a balance of probabilities”: para. 122.

Analysis [ 81 ] I accept that, in this case, threshold reliability has been established on a balance of probabilities because I.L.’s evidence is unlikely to change under cross-examination. [ 82 ] On the issue of standard of proof, the defence submits that necessity and reliability import conflicting standards. While necessity must be established on a balance of probabilities, the defence argues that Bradshaw heightens the standard for threshold reliability.

The defence argues that this leads to inconsistent findings of fact. [ 83 ] Both necessity and reliability must be proven on a balance of probabilities standard: Khelawon at para. 47 . Bradshaw has sparked discussion because it “prescribes what is arguably a more exacting analysis of reliability”: R. v. Wentworth , 2022 ONSC 5319 at para. 73 , citing R. v. Nurse , 2019 ONCA 260 at para. 98 . It is correct that Bradshaw sets a “high bar” for reliability: Coban at para. 42 , citing R. v. Poony , 2018 BCCA 356 at para. 27 .

However, Bradshaw does not alter the reliability analysis set out in Khelawon : Wentworth at para. 73 , citing R. v. McGenn , 2018 BCSC 753 at para. 24 ; Larue at para. 98. The test remains that “where, on a balance of probabilities, a court determines that there are sufficient guarantees of a statement’s inherent trustworthiness, a statement may be admitted because it meets the test for threshold reliability”: Wentworth at para. 73 . [ 84 ] In my view, the defence confuses the burden of proof and the standard of proof, that is the legal elements that must be satisfied for threshold reliability.

Throughout, the burden of proof is on the Crown to persuade, on a balance of probabilities, that the Statement be admitted because doing so is necessary and the test for threshold reliability has been met. [ 85 ] To begin with procedural reliability, I conclude that the videotaped Statement is an adequate substitute for an oath, in-person testimony, and cross-examination. The video recording is high quality. It allows the Court and counsel to see I.L.’s “reaction to questions, hesitation, degree of commitment to the statement being made, and the relationship” between Det. Rotherham and I.L.: B. (K.G.) at 792.

Importantly, in the circumstances of this case, the Court and counsel can also see I.L.’s facial expressions and gestures as she describes events, and the unfolding and meaning of the diagrams she drew during the interview. Accordingly, I find that I will be able to eventually assess the ultimate reliability of I.L.’s Statement. [ 86 ] Although the defence suggested that the consequences of lying were not put to I.L. during her Statement, doing so is not a requirement for the assessment of the reliability of the evidence of any witness: Bradshaw at para. 28 .

I.L. confirmed that she understood the need to tell the truth and later confirmed that she had done so. [ 87 ] Turning to substantive reliability, my task is to determine if there are any dangers with admitting the hearsay due to the circumstances in which the Statement was made. Recalling the indicia of substantive reliability set out above, the inability to test I.L.’s sincerity is the principal danger of admitting the evidence without an opportunity for cross-examination.

However, I am satisfied that the circumstances of I.L.’s Statement and the existence of corroborating evidence assuage any concerns about I.L. sincerity. [ 88 ] The circumstances of the Statement strongly demonstrate sincerity and I.L.’s truthfulness. Y.L. testified that she told I.L. that she was going to talk to the police about what happened in Peru. In the Statement, Det. Rotherham tells I.L. at the outset that he is a police officer and reminds her of this further in the interview.

He explained that I.L. was not to guess if she did not know the answer to a question and to seek clarification if she did not understand. [ 89 ] The Statement was made after a promise to tell the truth. Detective Rotherham emphasized to I.L. the importance of telling the truth, and she confirmed, by nodding her head, that she understood. She confirmed that she had been “a million percent” honest with Det. Rotherham near the end of the interview. The courts have accepted that a child’s promise “is sufficient to engage the child witness’s moral obligation to tell the truth”: R. v.

J.Z.S. , 2008 BCCA 401 at paras. 27 , 52, aff’d 2010 SCC 1 . [ 90 ] There is no serious issue with I.L.’s ability to perceive, recall, or recount the events she described. The Statement was given within a month of the alleged incidents in Peru. Detective Rotherham did not lead her on any significant detail. Observing I.L. during the Statement confirms Det. Rotherham’s testimony that I.L. was “very bright”. She understood she could correct Det. Rotherham, and she did so on a couple of occasions. [ 91 ] The only potential hearsay danger, as suggested by the defence, is that I.L. lied to Det.

Rotherham because she fabricated the abuse at the behest of her grandmother. Defence counsel suggested to Y.L. during cross-examination that she coerced I.L. to manipulate the prosecution. Y.L. denied that she had done so. It was also suggested, but not clearly, that Y.L. owed money to the accused and that she coerced I.L. into accusing Mr. Dias to avoid the debt.

Y.L. denied that suggestion. [ 92 ] The defence theory that I.L. concocted her evidence at the behest of her grandmother is contradicted by other features of this case. [ 93 ] First, and so far, the evidence establishes that Y.L. had no motive to fabricate lies about Mr. Dias and transmit them to I.L. Y.L. testified that he was her best friend, she trusted him, he was a wonderful grandfather model, and that their time in Peru was, initially, the happiest time of their lives. She testified that they were excited to go to Peru together. Y.L. also testified that until I.L. accused Mr.

Dias of touching her, Y.L. was not angry with him for any reason. [ 94 ] Second, while I accept that it is significant to the defence that they are unable to cross-examine I.L., in this case, that prejudice is mitigated to an extent by the ability to fully cross-examine Y.L., the person the defence says instigated the fabrication. Y.L. was thoroughly cross-examined about any motive she would have to influence I.L.’s Statement. She was not shaken in her evidence. [ 95 ] The evidence before the Court establishes that I.L. had no motive to fabricate these allegations. Y.L. testified that Mr.

Dias “became like member of the family”. I.L called him grandpa or “Garcy”. I.L and her brother were always very happy to see Mr. Dias, “jumping at the door”. There is evidence of this in I.L.’s Statement, where she refers to Mr. Dias as her grandpa, then corrects herself. [ 96 ] It was not put to Y.L. during cross-examination that she was exaggerating the importance of Mr. Dias in I.L.’s life. The fact is

that the three of them travelled to Peru together for Christmas in 2018, suggesting a close relationship. [ 97 ] Y.L. testified that, before Christmas 2018, I.L. had never expressed anger or hatred towards Mr. Dias, and that “she was so happy to have Garcy going to Peru”. There is simply no reason for I.L. to have fabricated a serious allegation against “Garcy”. [ 98 ] I.L. is not like the unsavoury witnesses in cases like Bradshaw and Larue. There is nothing to suggest that she is untrustworthy or anything other than an innocent eight-year-old girl.

As Justice Robins wrote for the Court of Appeal in Khan 1990 , young children “manifestly, are unlikely to use their reflective powers to concoct a deliberate untruth, and particularly one about a sexual act which in all probability is beyond their ken”: Khan 1990 at 542. [ 99 ] As to the possibility that I.L. fabricated the allegations of abuse, she has no motive to fabricate a story to implicate a person she loved. The allegations are serious. Her words had the ring of truth. The timing and circumstances of her earlier disclosures to her grandmother and the significant corroboration, particularly from Mr.

Dias himself, rise to the level that “even a sceptical caution would look upon her statement as trustworthy”: Khelawon at para. 62 , citing John Henry Wigmore, Evidence in Trials at Common Law , vol. III, 2nd ed. (Boston: Little, Brown, 1923) at 154. [ 100 ] The nature of the events that I.L. described were serious; the evidence before the Court is that telling her grandmother about it caused a massive disruption to I.L.’s life. This was not a white lie, and it would not be reasonable to conclude I.L. could have perceived it as such.

After disclosing to Y.L., the seriousness of the allegation would have been immediately apparent, as Y.L. sent I.L. away to stay with Y.L.’s friends in Peru until they returned to Canada. The seriousness would have been further impressed on I.L. when, once back in Canada, it was clear that “Garcy” would no longer be part of their lives. [ 101 ] The defence points to portions of I.L.’s interview as proof of her animus towards Mr. Dias: I.L. retreated to her room during fights between Y.L. and Mr. Dias; and I.L. said “bye-bye” and “I will never see him again, ever” when the Mr. Dias left her home.

According to the defence, cross-examination is necessary to resolve the conflict in the evidence and determine the truthfulness or sincerity of I.L.’s Statement. [ 102 ] I do not agree. The evidence cited by the defence is not demonstrative or determinative at the threshold reliability inquiry. The Crown is not required to fully disprove “all possible sources of doubt about the perception, memory, and sincerity of the declarant”: R. v. Carroll , 2014 ONCA 2 at para. 111 . Parsing I.L. and Y.L.’s evidence at this stage to determine if fabrication was induced is unnecessary.

Motive to lie is but one factor in the overarching reliability analysis: Coban at para. 45 , citing R. v. Blackman , 2008 SCC 37 at para. 42 . Other circumstances of the Statement, corroborating evidence, and I.L.’s age are sufficient to allow the Court to critically evaluate I.L.’s honesty and accuracy. [ 103 ] The defence submits that the Statement does not show a child in any degree of mental distress. In my view, it shows a bright child who develops a rapport with Det. Rotherham and gradually reveals what happened to her. [ 104 ] I.L.’s account of the abuse has the ring of truth.

It sounds like an eight-year-old recounting what had happened to her—not a prepared or fabricated allegation. For example: a. I.L. associated an age-appropriate emotion with Mr. Dias touching her. She said it was “bothering me”; b. I.L. spoke with frustration about a genuinely childish dilemma: the fact that she could not eat her breakfast and pull Mr. Dias’s hand away at the same time and when describing how she had to stop watching TV to get Mr. Dias’ hand off her thigh; and c. when she was asked where Mr.

Dias would be looking when he touched her, I.L. acted out the scene, looking up wide-eyed, and then placing a hand on her thigh and using the other hand to pull it down her leg. [ 105 ] I think it fair to describe I.L.’s conversation with Det. Rotherham as being suggestive of a child who is a little shy and embarrassed about talking about what happened. At the same time, she is precocious and fully able to express herself.

I got no sense that she was reciting a story she had rehearsed or that was scripted for her. [ 106 ] The timing of I.L.’s disclosures to her grandmother and the circumstances in which the disclosures were made support the credibility of her Statement. I.L.’s initial accusation happened in a restaurant when she was told to sit next to Mr. Dias. She said, “Oh no, I am not going to sit close because he is touching my legs”.

In that regard, her spontaneous reaction is similar to the hearsay statement at issue in Khan 2017 , and I am able to infer from the timing and circumstance that it was a situation in which I.L. was unlikely to be fabricating. [ 107 ] I.L.’s second disclosure was made in private to her grandmother, who testified that she took care to show no anger. Y.L. asked only two open-ended questions: what happened and when.

Y.L. was not putting words in I.L.’s mouth; she was providing a low-pressure situation in which to let I.L. talk. [ 108 ] I.L.’s third disclosure, made shortly after their return to Canada, was made when she was sick and feeling terrible. Y.L. testified that she began by telling her grandmother, “I am a piece of garbage” and later, “I would like to get my head off, put it on the wall so it’s in pieces”.

This suggests a young girl in significant emotional distress, talking to her most trusted parent figure in circumstances of despondent honesty. [ 109 ] I.L.’s disclosures to her grandmother describe incrementally worse behaviour by Mr. Dias. I.L. made a similar incremental disclosure in her Statement to Detective Rotherham where, at first, she denies that the accused hurt her, but later says he hurt her very badly. She also denied at first that Mr.

Dias ever touched her under her clothes, but later says clearly that he did so. [ 110 ] I.L.’s incremental disclosure does not negatively impact the credibility of her Statement. The fact of incremental disclosure is well-known. It was summarized in R. v. M.H. , 2018 ONSC 7366 at para. 74 , which was cited with approval in R v. Ramos , 2020 MBCA 111 at para. 65 , aff’d 2021 SCC 15 :

[74] Some victims of sexual assault will report immediately, some later; some incrementally, and some not at all. Some will tell the truth, initially, and some later. Their reasons for not reporting, delayed reporting, or not being truthful when initially reporting are as many and varied as the victims, but include fear, guilt, embarrassment, or lack of understanding and knowledge. ... [ 111 ] Finally, and perhaps most importantly, the material aspects of I.L.’s Statement—her allegations of abuse—are corroborated in three ways.

The first, and the least important of these, is the wet paper towel or tissue Y.L. noticed in the garbage. In her Statement, I.L. said “[a]fter I put cold water on it ... like I get this packet with tissues and I put cold water, I just put it on it, just to make sure it doesn't bleed or do anything”. She said she did this in the bathroom behind a locked door. I.L. denies she actually bled. Her evidence is confirmed by Y.L.’s evidence that she noticed a wet paper with “not too much blood” on it in the bathroom garbage.

I.L.’s denial of bleeding somewhat weakens the corroborative force of Y.L.’s evidence, although the denial seems entirely consistent with the reluctance of an eight-year-old girl to disclose a more embarrassing aspect of the abuse to a stranger. [ 112 ] Although the defence claims that cross-examination is necessary to resolve conflicts in I.L. and Y.L.’s evidence, I find that any discrepancy is due to I.L.’s “desire to spare herself embarrassment and to say less that inculpated the accused”: R. M.-N. at para. 112 . [ 113 ] The second aspect of corroboration relates to Y.L. and I.L.’s confrontation of Mr.

Dias while they were in Peru. Y.L. testified that after I.L. told her more details about Mr. Dias’ conduct in Peru, she took I.L. to where he was shaving to confront her. When Y.L. told I.L. to tell the accused what I. L. had told her, Y.L. saw him, in the reflection of the window, wink or make some sort of eye gesture. Y.L. interpreted this as the accused asking I.L. to be quiet. [ 114 ] I.L. described this event to Det. Rotherham. I.L. demonstrated using words, hand gestures, and body position that Y.L. was between her and Mr.

Dias when Y.L. looked at her and said, “Did you wanna tell Garcia what happened?” While Y.L. was saying this, Mr. Dias “did the signal of don’t say anything”. As I.L. described this, she put her finger to her lips and raised her eyebrows. With the exception of the finger to the lips, this is identical to the event Y.L. described. The fact that I.L.’s evidence about the confrontation was incomplete was due to Det. Rotherham going in a different direction and not returning to this topic. [ 115 ] This corroboration is material because Mr. Dias’ reaction when confronted is inculpatory.

His attempt to silence I.L. suggests that he was afraid that whatever she would say was potentially damning. The corroboration is strong, particularly given the video that allows the Court and counsel to see how I.L. described the configuration of the three people involved in exactly the same way as Y.L. had done. [ 116 ] I accept that these two pieces of evidence— the wet tissue and the confrontation—are not completely corroborative but they do corroborate some aspects of I.L.’s Statement. [ 117 ] The most significant corroboration is the statement Mr. Dias made to Y.L. that was secretly recorded.

It strongly resembles I.L.’s description of the timing and manner in which he touched her and is, thus, an indicator of substantive reliability: R. M.-N. at para. 114 ; U. (F.J.) at para. 47 . [ 118 ] With respect to the timing, I.L. told Det. Rotherham that the accused touched her in Peru when her grandmother was “buying maybe stuff or sleeping. She is maybe buying some groceries”. In his statement to Y.L., Mr. Dias confirmed that he only “played” with I.L. when Y.L. was away. Y.L. confronted him about this; he responded, “I didn’t play with (indiscernible) when you were there. Because she didn’t touch”.

The indiscernible word may be “girl” or “the girl”. Mr. Dias also confirmed that he “passes his hand in the body” “every time we play”. [ 119 ] As to the manner of touching, I.L.’s description of Mr. Dias’ touching in Peru was that he would start from her ankle and go up to her private parts, as well as her chest. That is consistent with I.L.’s drawing and her marking of where she was touched on a picture of a girl while she was with Det. Rotherham. [ 120 ] Her description is a lot like Mr. Dias’ own description of how he touched I.L.: a. “When I was playing. When, when I grabbed her.

I touch ah, her bum, and the legs or whatever, of course. Then went up and down”; b. “The truth, yeah, when we are playing I touched her bum and I pass my hands up between her legs and up [indiscernible]”; and c. “I just come between her leg, up between her leg. Just to, to up here ... to the breast, yeah”. [ 121 ] I.L. and Mr. Dias’ descriptions of him touching her vagina are also similar, except that I.L. says that it happened both over and under the clothing. I.L. described how Mr. Dias’ thee middle fingers would be placed on her vagina. Mr.

Dias described it as follows: a. “When I was playing sometimes [indiscernible] I believe I, I touched, with the clothing between the legs”; b. “I pass my hand in between her legs like, when we are playing”; and c. “I believe in that time when I lift her down, I believe I passed my hand in ... between her leg”. [ 122 ] On the evidence before me on this voir dire , there are only three possible sources of Mr. Dias’ knowledge of the details of the alleged abuse: I.L., Y.L., or his own knowledge from participating in it. [ 123 ] On Y.L.’s evidence, the first two sources can be ruled out.

With respect to I.L., the only time she described the incident to Mr. Dias was when she confronted him in her grandmother’s presence. On that occasion, according to Y.L., all that I.L. said was, “You were touching my body”. [ 124 ] With respect to Y.L., she testified that she spoke to Mr. Dias on two occasions about the abuse. On the first occasion, after I.L. confronted him, Y.L. sent him to the balcony where Y.L. further confronted him. On her evidence, all she said regarding the specific abuse was that he “touched” I.L.

The second occasion was in a parking lot in Vancouver shortly after they returned from Peru. Y.L. was

not asked who brought the subject up; her evidence was that Mr. Dias protested his innocence. She testified that he said, “I didn’t touchthe girl, no rape, nothing … He say, I play with the girl, up and down, up and down and she like it, she wants more. Maybe by accident Iput finger between her legs”. [125] The information that I.L and Y.L. conveyed to Mr. Dias was not what he conveyed to Y.L. either in the parking lot or in hissurreptitiously recorded statement. The only way Mr. Dias knew the details was from his firsthand knowledge. For this reason, Mr.

Dias’statement is powerful corroboration of I.L.’s Statement. This is unlike Bradshaw, where the recorder of the accused’s inculpatorystatement was under significant pressure to obtain a confession and the accused said that the recorder asked him to lie by implicating himin a crime. I accept that Y.L. was highly motivated to obtain a confession from Mr. Dias, but what she said to elicit Mr. Dias’ admissioncan be heard on the recording. Y.L. did not pressure Mr. Dias to admit any specific acts. He admitted specific acts that are very similar tothose described by I.L.

There is no suggestion that there is anything outside the recording that pressured or influenced Mr. Dias to saywhat he did to I.L while talking with Y.L. [126] Although the defence suggested a number of areas for cross-examination of I.L., many of those areas related to Y.L.’s motives forinducing I.L. to fabricate. For example, the defence suggested that there was some sort of struggle between Y.L. and her daughter, I.L.’smother, for I.L.’s affection.

The defence written submissions say: [I.L.] through these allegations thereby may have a motive to fabricate based upon her desire to recapture her mother from the influenceof the accused. [Y.L.] also may have a motive to fabricate [I.L.]’s trauma through her competition with [the mother] for the status ofmotherhood of I.L., despite being her guardian. [127] Y.L. was not cross-examined about “competition” for I.L.’s affection between her and her daughter. [128] In addition, the defence suggested that I.L.’s mother might have shed some light on the reliability of the Statement.

I note thatI.L.’s mother was named as a witness who the defence might call on the voir dire but then did not. The defence suggested that I.L.’smother was aligned with Mr. Dias. It is open to the defence to call I.L.’s mother in the trial proper, and, if so, her evidence may be takeninto account in the assessment of the ultimate reliability of I.L.’s Statement. [129] As another example, in cross-examining Y.L., the defence suggested that Y.L. had attacked her daughter. Y.L. said that theopposite had happened when her daughter came home high.

Y.L. offered to obtain a copy of the police report, but the defence did notpursue this line of questioning after being shown a copy by the Crown. It is inappropriate for counsel to suggest that a witness undercross-examination who offers to bring a document to the court and then does not do so is not credible when the defence does not pursuethe suggestion further. Conclusion [130] Based on all of the foregoing, I conclude that the Crown has established that I.L.’s Statement meets the test of threshold reliabilityon a balance of probabilities.

Probative Value versus Prejudicial Effect [131] Although I have found that the Statement is necessary and reliable, the Court retains a residual discretion to exclude the evidence:Khelawon at para. 3. Exclusion is appropriate when the potential prejudicial effect of that evidence outweighs its probative value:Khelawon at para. 3. However, it would be rare for evidence to have both threshold reliability and a significant prejudicial effect.Exclusion on this ground may be appropriate, for example, if the evidence has minimal probative value and cannot be tested by cross-examination: R. v.

M. (M.), 156 C.C.C. (3d) 560 at para. 20, (Ont. C.A.). [132] In M. (M.), a child’s statement was necessary and reliable but excluded by exercise of the court’s residual discretion: para. 21. Thechild was not the complainant or even a witness to the alleged sexual assault; he was in the apartment at the time. As the child couldprovide limited evidence, the statement’s probative value was outweighed by the accused’s inability to cross-examine. The Court ofAppeal upheld the trial judge’s conclusion: para. 22.

Analysis [133] I.L.’s videotaped Statement comes with little or no prejudice, and there is no basis to exclude it for that reason. The probativevalue of her Statement is plain. It is the heart of the matter: the allegations of the crime itself. To be clear, I am not presuming that I.L.’sStatement is necessary for the Crown to prove its case (although it may be), as this is not the subject of the residual discretion:Wentworth at para. 96, citing Rowe at paras. 89–90.

Rather, I am not exercising my discretion because I.L.’s Statement is probative ofthe issue in dispute. [134] Furthermore, the strength of I.L.’s evidence is described above in these reasons. There is no prejudicial effect of the evidence,namely the moral and reasoning prejudice that attaches to it.

Moral prejudice is not a significant concern in a judge-alone trial, and thereis nothing inflammatory in the Statement beyond the allegations themselves, nor is there any reasoning prejudice to speak of (i.e.,anything confusing or unduly time-consuming). [135] The inability to cross-examine I.L. is a factor incorporated into the principled exception and not a reason to exclude the Statementat this stage.

To repeat the words of the Supreme Court of Canada in Smith at 935, “where the criteria of necessity and reliability aresatisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able toevaluate the evidence on that basis”. [136] Moreover, any unfairness to Mr. Dias due to the inability to cross-examine I.L. is attenuated to an extent by his ability to cross-examine Y.L., the alleged source or instigator of the fabrication.

Conclusion [ 137 ] As there is no prejudicial effect of admitting the Statement and it has probative value, I decline to exercise the Court’s residual discretion to exclude the evidence. Conclusion on Admissibility [ 138 ] For the foregoing reasons, and in light of the need for particular sensitivity with respect to the evidence of children in cases of alleged abuse, I have concluded that I.L.’s evidence is unavailable, but there is reliable evidence that can be admitted as an appropriate substitute for her testifying in court. [ 139 ] I.L.’s January 24, 2019 videotaped statement given to Det.

Rotherham should be admitted into evidence for the truth of its contents under the principled exception to the hearsay rule. “MacNaughton J.”