R. v. L.(M.), 2011 ONCJ 90

Information No. 10 – S2520 Citation: R. v. L.(M.) , 2011 ONCJ 90 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - M.L. Mr. G. Settimi for the Crown Ms. P. Lucas for the Defendant An order has been made under s. 486.5 directing that any information that could identify the complainant, G.L., shall not be published in any document or broadcast or transmitted in any way.

Ruling on a Khan application NADEL, J.: Introduction [ 1 ] On May 27, 2010, Stephanie Fortier, a teacher at Caistor Central Public School, observed marks on the left cheek of G.L., an eight-year-old student in her class. She asked him if his dog had caused them, videlicet “Did D. scratch you?” He replied, “No, my mom.” She asked him further questions and then reported her concerns to her principal, Mark Bridges, who also interviewed G.L.. As a consequence of that questioning G.L.’s mother is charged with assaulting him. [ 2 ] G.L.’s trial testimony is at odds with his statements to his teacher and principal.

The Crown seeks to tender the answers and gestures made by G.L. to his teacher and principal as the evidence of G.L. at the defendant’s trial. The Crown submits that G.L.’s answers and gestures are both necessary and reliable. That application is resisted by the defendant who submits that G.L.’s out-of-court utterances are either unnecessary because he has testified or unreliable and hence inadmissible for the truth of their content. The Contested Evidence [2] The contested evidence comes from two sources, Stephanie Fortier and Mark Bridges. Fortier was G.L.’s home-room teacher.

She outlined the school day at Caistor Central Public School where, on May 27, 2010, G.L. was a student in her grade 2/3 split class. According to Fortier, G.L. was a nice, friendly child who needed some direction. He was happy at school and she was happy with him. [ 3 ] The school-day for her class began, as usual, at 8:50 a.m. with the children hanging up their coats, dropping off their agendas and then going into the gymnasium to sing O Canada and hear the day’s announcements. G.L.’s agenda contained a note from his mother, who was upset that G.L. had not told her that he had not completed his homework.

She asked that G.L. be kept in for part of his recess. Fortier did not see G.L. until later in the morning because her students had a 50-minute class with a drama teacher for first period. That class ended at 9:40 a.m. [ 4 ] Fortier stopped G.L. and spoke to him in the hallway at 10:40 a.m. as he was going for a snack before recess. There was nothing apparent or different about his demeanour that day except for some marks on his face. The marks were red and obvious. Fortier thought they were fresh, since she had not seen them the previous day.

She counted their number variously but described them as being a gouge and several scratches high on the left side of his face.

[5] Fortier knew the name of G.L.’s dog and so she asked, “Did D. scratch you?” G.L. replied, “No, my mom”. She then said,“Show me” and he responded, “My mom grabbed my face”. Fortier demonstrated what G.L. showed her. I would call what shedemonstrated as “fish-hooking”. Responding to Fortier’s request for details G.L. explained that he was trying to do some homework thatmorning when his mother put her fingers in his mouth which caused the injury. He also said that his mother grabbed his shoulder, thathe fell and she kicked him. He pulled his shirt away to show his right shoulder which had a reddish bruise.

Finally, she asked him if thishad happened before and he answered, “Lots of times”. [6] Fortier suspected G.L. had been abused and she appreciated her obligation to report this information to the local child welfareauthorities. She did not however, as she spoke to her principal, Mark Bridges within about ten minutes of speaking with G.L.. Fortiertold Bridges what G.L. had told her and Bridges said that he would contact Family and Children’s Services. She made rough notes abouther conversation with G.L. about two hours later and subsequently typed a report for the authorities.

Fortier said G.L. was forthright atschool. She described him as an open book and she accepted that he was being truthful with her on this occasion. [7] On May 27, 2010, Mark Bridges was the principal of Caistor Central Public School. He testified that he spoke to G.L. at therequest of Stephanie Fortier because she was concerned about G.L.’s facial injuries. According to Bridges, that was all that she told him. Bridges said that he spoke to G.L. at about 10:00 a.m. and definitely before 10:30 a.m., the time of the first break in classes. He toldG.L. that he wanted to see him in the office.

When G.L. came in Bridges observed three obvious and fresh looking marks on G.L.’sface. Two of the marks were red and looked fresh, “like they had just happened.” When G.L. sat down Bridges asked, “How are youdoing?” G.L. replied, “Fine.” Bridges then said, “It looks like you’ve got a sore on your left cheek. How did it happen?” G.L. told himthat his mother was angry because he had not done his homework. Bridges asked when this happened and G.L. said that morning. G.L.told Bridges that his mother had grabbed his cheek with one finger inside of his mouth and her other fingers on the outside.

He said thathe had tried to pull away from his mother and that he was pulled and injured. Bridges offered that that must have been upsetting and G.L.said, “yes” and started to cry. Bridges asked if this happened before and G.L. said, “yes”. Bridges asked when and G.L. said that hismother would take him upstairs and torture him. G.L. continued to cry. Bridges asked if anything else happened or what else happened.In response, G.L. pulled down his shirt to disclose a red mark or scratch on the right side his right chest at the level of his nipple.

In thecourse of his questioning, G.L. said all of his injuries were from the same incident and that he was taken to a bedroom where the injurieswere inflicted. Bridges asked if G.L. felt safe, which prompted tears. Bridges asked, “Anything else?” G.L. responded with a shouldershrug. Bridges described G.L. as looking uncomfortable and awkward and that he oscillated between crying to almost sobbing. [8] No photos were taken by Bridges because the school’s protocol is not to do so as the school defers to the local child welfareauthority for photographic documentation.

Bridges estimated that his interview with G.L. lasted about 25 minutes. There was no otherwitness to that interview. Bridges did not make contemporaneous notes of the questions and answers. He described his interviewingtechnique as a natural process in which he tried to draw out information without asking leading questions. He recalls calling FACS atabout 11:00 a.m. as the injuries were well past any minimal threshold. He made general notes of the interview about an hour later andmore detailed ones by the next day.

Cross-examination elicited the fact that his more detailed notes did not supplant or amplify thegeneral ones that he first made. Bridges used the word “bloody” to describe the marks in his testimony, but when challenged in cross-examination about that description, he acknowledged that word did not appear in his general notes. Upon being challenged he, in effect,reverted to the adjective “red” and implied that all that he meant was that the facial marks were red and looked fresh and not scabbedover. He described the marks as being slightly above but near the corner of G.L.’s mouth.

The Issue [9] G.L.’s out-of-court statements to his teacher and to his principal are hearsay, since the Crown seeks to adduce themsubstantively, i.e., for the truth of their content. The Crown has not submitted that they are admissible under any traditional exception tothe rule against receiving hearsay. The statements are therefore presumptively inadmissible. The onus is on the Crown to demonstratethat G.L.’s statements to Fortier and Bridges are both necessary and sufficiently reliable to meet the threshold test for admissibility. Ruling on Necessity [10] G.L. testified.

He has a very limited recall of events that apparently pertain to the morning of May 27, 2010. He has no apparentmemory or testimony to offer with respect to the provenance of the marks on his face being at the hand of his mother. He has somerecollection of an accidental fall from a chair and says a cat may have scratched his face. He could not explain what the word “torture”means. [11] The defence submits that since G.L. testified the Crown cannot demonstrate that his out-of-court statements are necessary.

Further, the fact that G.L.’s testimony is inconsistent with what he told his teacher and principal or the fact that his testimony exonerateshis mother does not demonstrate necessity. The defence submits G.L.’s testimony did not disclose an assault upon him by his mother. As a result, the Crown wishes to impeach its own witness. That wish is not sufficient to demonstrate necessity. Rather, the defencesubmits that the Crown must demonstrate, on the balance of probabilities, that a witness is unavailable to testify, unwilling to testify orunable to testify. Ms.

Lucas submits that none of those circumstances exists here so that necessity has not been made out. [12] Contrary to the defence submissions on this issue I am satisfied that G.L.’s out-of-court statements are reasonably necessary. The Crown does not seek to have them admitted merely to “impeach” G.L. because he said something contrary to his trial testimony on aprior occasion. The Crown seeks to rely upon the truth of those prior utterances. Trial courts have been directed to apply the criterion ofnecessity flexibly having regard to the particular circumstances of the case.

Appellate authorities have stressed that the principledapproach to hearsay should not be allowed to develop into a new series of pigeon-holes or ossified exceptions. Having received theevidence of G.L.’s older sister, his teacher and his principal, it was clear to me, as I watched G.L. testify, that he likely lacks any currentmemory of the events he related to Fortier and Bridges and any substantial memory of the events of that morning. That memory failuremakes his utterances to Fortier and Bridges reasonably necessary to prove a fact in issue at this trial; namely, how his face came to bescratched.

His hearsay utterances are necessary to provide a full and accurate account of his evidence. (R. v. Khan (1990), (SCC), 59 C.C.C. (3d) 92 (S.C.C.) at [29]; R. v. Smith (1992), (SCC), 75 C.C.C. (3d) 257 (S.C.C.) at [34] to [36]) [13] This is not a case of a wilfully recanting witness. I am satisfied that given his age and his hyperactivity and attention deficit

disorder, G.L.’s viva voce testimony evinces a honest lack of memory of the salient events. The law reports are replete with examples ofnecessity being made out by reason of a lack or loss of memory. (R. v. Fullerton, [1994] B.C.J. No. 2799 (Prov. Ct.); R. v. Moore (1990), (ON SC), 63 C.C.C. (3d) 85 (Ont. Gen. Div.); R. v. Eisenhauer (1998), 1998 NSCA 60 , 123 C.C.C. (3d) 37(N.S.C.A.); R. v. Fleet (2001), 2001 NSCA 158 , 163 C.C.C. (3d) 177 (N.S.C.A.); R. v. Toor, [2004] O.J. No. 4693 (C.A.); R. v.Laurin, [2004] O.J. No. 5145 (C.A.); R. v.

Williams (2006), 2006 NSCA 23 , 205 C.C.C. (3d) 481 (N.S.C.A.)) Ruling on Reliability [13] Ms. Lucas urges that my ruling be guided by the stricture that hearsay is presumptively inadmissible. She submits that for anumber of reasons G.L.’s statements are insufficiently reliable to breach the threshold of inclusion as evidence at this trial. The defencesubmits that: • G.L. suffers from ADHD and has a penchant for lying. These facts point to his unreliability as a witness; • There are significant contradictions between the evidence of Fortier and Bridges, which demonstrate that Bridges’ evidence isunreliable.

Moreover, Bridges’ evidence was exaggerated and his interview of G.L. was conducted in a leading fashion; • G.L. was ordered to attend his principal’s office without explanation, factors which would likely be stressors for him; • G.L.’s use of the word “torture” without being asked to explain its use is a cogent example of the fact that Bridges did not inquireinto whether G.L.’s statements were true; • G.L. denied any assault at trial. He said a cat scratched his face and that he fell down the stairs.

Additionally, he testified that hefell off his chair that morning onto a carpeted floor and did not sustain any injury; • All of the foregoing implicate the factors identified at [30] and [33] of Khan (the timing of the complaint, the demeanour,personality, intelligence, motivation, understanding and understanding of consequences by the putative complainant) and militate infavour of findings of unreliability and exclusion. [14] In particular, the defence points to G.L.’s lack of emotional upset before his disclosure to Fortier and suggests that his normaldemeanour signals the unreliability of his complaint.

Given G.L.’s failure to complete his homework and the upset it had already causedhis mother, the defence submits that G.L.’s complaint to Fortier may have been

an act of self-interested attention-seeking motivated by afear of getting into further trouble for not having done his homework. That possibility makes his complaint to Fortier too dangerous andtoo unreliable to receive. Without rejecting all of the points and submissions being made by the defence, I do reject this last submission. It presumes a level of intelligence and a sophistication clearly lacking in G.L..

It is essentially a speculative submission and not acompelling one. [15] The defence makes more nuanced objections to the statements made to Bridges submitting that for several reasons G.L.’sstatements to his principal cannot be reliably received. The defence submits that accepting G.L.’s statements to Bridges, even at thethreshold level, implicitly requires crediting Bridges with providing an accurate and unembellished record of G.L.’s complaint.

Further,it requires crediting Bridges as having received this complaint from G.L. without pressure or undue influence in a situation wherefabrication by G.L. would be recognized. Ms. Lucas submits that Bridges’ testimony is for a variety of reasons suspect and insufficientlyreliable to be the conduit for G.L.’s extra-judicial evidence. [16] Many of the defendant’s concerns have been adverted to above at [13] but Ms. Lucas has particularized some of them in herwritten submissions to demonstrate the unreliability of Bridges’ account. Fortier first spoke to G.L. at 10:40 a.m. or perhaps a littleearlier.

She did not even see G.L. until at least 9:40 a.m. Bridges did not know about Fortier’s concerns until she spoke to him about tenminutes after she had spoken with G.L.. Yet, Bridges testified that he spoke to G.L. early that morning at about 10:00 a.m. and definitelybefore the first school break in the morning which is held at 10:30 a.m. So, his recollection of the timeline of the complaint, despitebeing assisted by whatever notes he made is clearly wrong.

The defence stresses the circumstances of this disclosure – being called tothe principal’s office to be questioned by the principal, an authority figure with whom G.L. had very little prior contact of substance.While Bridges described his questioning as a natural process in which he tried to draw out information without asking leading questions,his voicing of some of those questions in his testimony demonstrates that some questions were asked in a leading fashion. Significantly,G.L.’s statement to his principal was not akin to a spontaneous declaration.

Further, Bridges’ descriptions of G.L.’s demeanour,(uncomfortable, awkward, crying and sobbing,) raise concerns about the reliability of what he was saying. [17] G.L.’s viva voce testimony sheds no light on his feelings or motivations when he spoke to Bridges after talking to Fortier. I haverejected what I characterized as a speculative submission regarding G.L.’s disclosure to Fortier at [14] above. The defence makes arelated submission regarding Bridges’ evidence that has more force. Ms.

Lucas submits that G.L. had already been in trouble thatmorning with his mother for not doing his homework, and lying to her about it. That evidence came from his sister, Hope and wascorroborated by the entry the defendant made in G.L.’s journal. In these circumstances Ms. Lucas submits that in being called to theprincipal’s office without explanation, G.L. could not have known if he was going to be questioned about his failure to do hishomework.

The defence urges that in being called to the principal’s office G.L. may have considered that he could have avoided furtherconsequences by making something up without having any true comprehension of the consequences to others about his “story”. Onceagain, I find this submission credits G.L. too much. However, there are a number of matters about Bridges’ evidence that give me pause,which I will detail later in this ruling. Applying Khelawon [18] “Hearsay is inadmissible as evidence because its reliability cannot be tested.” (Khelawon at [58] adopting R. v. U. (F.J.), (SCC), [1995] S.C.J.

No. 82) The untestable concerns that hearsay implicates include the declarant’s perception, memory,narration or sincerity. In addition, the transmission of the declaration by the receiver may be inaccurate, as a result of mistakes,exaggerations or deliberate falsehoods. The principled exception allowing for the reception of hearsay requires that a trial judge act as agatekeeper to ensure that only necessary hearsay that meets a threshold of sufficient reliability be permitted to become part of the

substantive record of evidence. ( Khelawon at [2]) [ 19 ] There are two general and not mutually exclusive categories from which threshold reliability may be garnered. The first obtains when even a sceptically cautious person would accept the trustworthiness of the statement because of the circumstances in which it was elicited.

In effect, this circumstantial guarantee of trustworthiness renders contemporaneous cross-examination of the maker, if not superfluous then at least, dispensable. ( Khelawon at [62]) The second category comprehends situations where despite the hearsay form of the statement, its truth and accuracy can nonetheless be sufficiently tested at the trial in which it is proffered.

That is generally accomplished as a result of procedures in place or taken at the time the hearsay statement was first made. ( Khelawon at [63] to [65]) [ 20 ] The situation presented in this trial is akin to the examples discussed at [40] of Khelawon . G.L. does not formally recant an out- of-court statement but rather testifies that he has no memory of making the statement or no memory of the event referred to in the statement. As a result, as trier-of-fact, I am unable to independently assess G.L.’s demeanour in making the statement.

Equally, I cannot independently assess the accuracy of the statements, a point of no little weight in the instant case.

As a result there is no opportunity for meaningful cross-examination of G.L. by the defence. [ 21 ] Starting then from a position of presumed inadmissibility I see nothing in the way of procedural safeguards or their equivalents that would make up for the defendant’s lack of opportunity to confront G.L. through cross-examination, with respect to his out-of-court statements. ( Khelawon at [59]) There were no procedures in place that permit the truth and accuracy of G.L.’s school statements to be reliably tested at trial.

No completely accurate contemporaneous written, digital or analog record was kept of what was asked and answered. Hence, the content, the demeanour and timbre of the adults and of G.L. is unavailable, except through the adults’ self-reports. Given G.L.’s current lack of memory and the presumptive inadmissibility of this evidence, the Crown cannot point to any procedural circumstances from which the hearsay form of G.L.’s statements can nonetheless be sufficiently tested at this trial. [ 22 ] However, that does not end the inquiry.

In my view, for the reasons that follow, the circumstances in which G.L. made his statement to his teacher were sufficiently reliable to allow that conversation to become a substantive part of G.L.’s evidence at this trial. Additionally, no rule of evidence precludes the Crown from relying on Fortier’s observations, in any event. Further, I conclude that the circumstances of the interview conducted by the principal are not sufficiently reliable to meet the test of threshold reliability and those statements remain inadmissible hearsay. Like Fortier’s, Bridges’ observations are admissible.

I arrive at these rulings for the following reasons. [ 23 ] I am of the view that G.L.’s initial statement to Fortier as quoted at [1] and [5] above, was akin to a spontaneous declaration. Granted it was prompted by a question but the question was not leading. It was framed conversationally and posed in a friendly, almost bantering, manner based upon personal information likely previously conveyed by G.L. to his teacher. In any event, it was not an inquisition. G.L. could have answered yes or he could have said no or he could have said nothing.

Instead, he volunteered that his mother had caused the marks on his face. [ 24 ] The evidence suggests that G.L.’s emotional state was normal during this meeting with Fortier. As noted above, while he sometimes needed direction, G.L. was a nice and friendly child. He had been in Fortier’s class for that school year and she had the opportunity to know him well. Ms. Fortier described him as an open book and she accepted that he was being truthful with her on this occasion.

I am satisfied that G.L.’s answer, “No, my mom” was given in circumstances of sufficient circumstantial reliability to allow that answer to be tendered substantively. [ 25 ] Equally, I find the balance of Ms. Fortier’s evidence of what G.L. said and what G.L. showed her is sufficiently reliable so as to be received substantively, as G.L.’s evidence at this trial. First, I adopt my comments in [23] and [24] above.

Next I note that G.L.’s statements and actions were not extensive and sufficiently memorable that Fortier could reliably relate them. [ 26 ] Fortier did not use leading questions; nor did she question G.L. aggressively. She asked him to “show” her how he was injured and again, G.L., without suggestion or direction from Fortier, told her that his mother had grabbed his face as he demonstrated what had happened to him. Admittedly, Fortier did seek further details but she did not supply them or suggest them to G.L..

I found her to be credible and her testimony did not appear to overplay or exaggerate what G.L. said or did or what she observed. [ 27 ] In determining whether these statements and gestures are sufficiently reliable to be considered substantively despite the inability of the defence to effectively cross-examine G.L. on this account, I have considered that G.L.’s utterances dovetail with other evidence. His statements were uttered within three hours of the events they detail.

His sister, Hope, explained that their mother would habitually grab her children’s chins to make them look into her eyes when she wanted their attention. This method of obtaining her children’s attention is likely what G.L. was talking about to Fortier. That is to say that G.L.’s complaint is strikingly similar to Hope’s description of their mother’s behaviour. Further, Hope testified that their mother was concerned about G.L. lying about having completed his homework and that their mother made G.L. sit at the table to finish it. Hope also said that their mother took G.L. upstairs where she heard a loud crash.

Finally, the defendant’s entries in G.L.’s agenda corroborate aspects of G.L.’s evidence and aspects of Hope’s evidence. Given all of that, I am satisfied that G.L.’s statements and gestures to Fortier are sufficiently reliable to be received despite Ms. Lucas’ inability to cross-examine G.L. on them. Whether they will ultimately be relied upon by me is not the matter under consideration. [26] Notwithstanding the foregoing ruling, I find that Bridges’ evidence of G.L.’s statements and gestures is not sufficiently reliable to be received.

I come to that conclusion for a variety of reasons which include all of the following observations, comments or conclusions. [27] First, Bridges’ recollections are not reliable. He was clearly wrong about when he first learned of Fortier’s concerns and he was wrong about what Fortier told him. He testified that she did not give him any details of G.L.’s allegations, yet that cannot be correct. Fortier did not call FACS despite knowing of her obligation to do so. She explained that after she told Bridges what G.L. had said, Bridges told her that he would make the call and he did.

He would not have told Fortier not to call unless, as she testified, she told him of the substance of G.L.’s compliant. I accept her evidence on that point and reject Bridges’. In my view this is a major inconsistency and demonstrates unreliability in his evidence that is a matter of concern, given that no cross-examination of G.L. is available. Of lesser

import but concerning, nonetheless, is Bridges’ error in the time when he first learned of G.L.’s injury. [27] Second, as noted earlier, in the challenges raised against Bridges by Ms. Lucas, his evidence was not given in an even-handed and disinterested manner. He clearly used hyperbolic language in describing the scratches as “bloody”. Since no photos were taken, it would be dangerous to permit his evidence to become G.L.’s for some of the reasons touched upon in [18] above.

Equally, while Bridges said he interviewed G.L. in a non-leading fashion to bring out his story naturally, his voicing of his questions shows that he did not consistently use open-ended questions or, at least, that I cannot be sufficiently satisfied about his manner of questioning. Further, Bridges initially testified in a way that left me with the impression that after making his rough notes he subsequently went on to detail and amplify them. Ms. Lucas demonstrated that impression was incorrect. All that Bridges was relying upon to refresh his memory were his initial rough notes.

I was discomforted by the impression he created. Finally, I agree with an implication arising out of Ms. Lucas’ submissions, that in being sent to the office, G.L.’s statements to his principal have not been shown, on balance, to be voluntarily made. Bridges, as principal, was the authority figure at school. He had had little personal contact with G.L. previously so that they did not share an established relationship.

By Bridges’ description G.L. was uncomfortable, awkward, crying and even sobbing while in his office. [ 28 ] The final area of concern that I have about Bridges’ evidence is the Crown’s inability to demonstrate that his account of his one- half hour interview with G.L. is sufficiently accurate to be admitted without the opportunity of cross-examination. This was to be a second interview with G.L.. Unlike the situation with Fortier, which was spontaneous and unplanned, this was a formal interview that was conducted in the controlled setting of Bridges’ office.

As noted previously, I find that Bridges had been told the substance of G.L.’s complaint. Since Bridges elected to conduct this second interview, as opposed to calling FACS immediately or directing Fortier to do so, surely it was incumbent upon him to arrange to make an accurate record of it. Since the school’s protocol is not to take pictures of injuries and apparently not to record interviews (or even have a second witness to an interview) I am not convinced that Bridges’ “rough notes” are a sufficient aide memoire to allow him to reliably recount a half-hour interview.

On the contrary, I do not find sufficient indicia of reliability to overcome the presumptive inadmissibility of these statements and gestures. Beyond failing to take any steps to record the questions and answers, no warnings were given to G.L. about the importance of telling the truth and no promise was extracted from him to tell the truth. So, while Bridges’ observations and descriptions of the signs of injury on G.L.’s person are admissible, the substance of the interview is not admissible. Dated at St. Catharines, this 4 th day of February 2011 ​​​​​​​​​​​​​​​​​_________________________ J. S. Nadel, (OCJ)