R. v. L.(J.), 2018 ONCJ 311

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. L.(J.) , 2018 ONCJ 311 DATE: 2018 05 11 COURT FILE No.: Niagara Region 998 17 N0322 BETWEEN: HER MAJESTY THE QUEEN — AND — L (

J) Before Justice J. De Filippis

Heard on February 21 – 23 & March 20, 2018 Reasons for Judgment released on May 11, 2018 Ms. P. Vadacchino.............................................................................. counsel for the Crown Mr. A. Burton……………………………………………………... counsel for the accused De Filippis, J.: Introduction [ 1 ] The defendant is charged with sexual assault and sexual interference, with respect to his daughter, between April 11, 2016 and January 27, 2017. She is now six years old.

I will refer to her as the complainant. [ 2 ] At a judicial pre-trial before one of my colleagues, it was decided that this trial would proceed in three stages, each separated by several weeks. Each segment is to proceed by way of a blended hearing to consider the following issues:

(1) Section 715.1 and Khellawon application;

(2) Admissibility of the defendant’s statements to various officials;

(3) Potential similar fact application and Defence evidence, if any. Issues and Ruling on Stage 1 [ 3 ] This voir dire concerns a Crown application to tender three out of court statements by the complainant; (

i) the initial one sentence utterance to JN and JL, (ii) words and gestures recorded by Ms. Janice Ferguson during play therapy and (iii) a video recorded statement given to a PC Sanders. The Crown relies on the principled exception to the hearsay rule to justify the admissibility of the first two statements and

section 715.1 of the Criminal Code video statement. The Crown submits that the complainant’s acts and drawings during play therapy is admissible as non-hearsay trial evidence. In the alternative, the Crown submits the out of court acts are admissible on the same basis as her therapy statements. [ 4 ] The Defence asserts that the complainant’s out of court actions, as well as her words, are hearsay and presumptively inadmissible.

Having regard to my conclusion, I need not resolve the debate about whether actions and words are to be treated differently; that is, I have proceeded on the assumption that the Defence position is correct and rule in favour of the Crown. [ 5 ] This trial commenced on February 21.

On March 29, 2018 I advised counsel as follows with respect to the first stage: The out of court statement attributed to the complainant and given in evidence by JN and JL is admissible pursuant to the principled exception to the hearsay rule; The out of court statements and actions attributed to the complainant and given in evidence given by Ms. Ferguson is admissible pursuant to the principled exception to the hearsay rule; The video recorded statement given by the complainant to PC Sanders is admissible pursuant to s. 715.1 of the Criminal Code . [ 6 ] These are my reasons.

Evidence [ 7 ] On April 11, 2016, PC Bozza received information that a four year old girl had been sexually assaulted by her father. As will be discussed below, he learned that the girl had stated that “daddy ate my patoon”. The officer arranged to meet with her the next day at the Child Advocacy Centre (CAC). He met the complainant and her mother in the “play room” at the centre. However, notwithstanding pressure from her mother, the child refused to go into the interview room with him alone and answer questions.

The officer explained that he could not interview the girl in the play room because of the absence of recording facilities and noted that it is contrary to protocol to conduct such an interview in the presence of a parent. The officer abandoned efforts to take a statement and told the mother not to discuss the allegations with her daughter. On April 22, 2016, PC Bozza advised the complainant’s mother that there was insufficient evidence to proceed with charges and that the investigation was suspended. [ 8 ] The investigation recommenced on November 23, 2016 after PC Bozza received a call from Ms.

Janice Ferguson at Family and Children’s Services (FACS). According to Ms. Ferguson the complainant had disclosed sexual abuse by her father during a therapy session. An interview was arranged with the girl for January 18, 2017 at CAC. PC Bozza asked for a more experienced and female officer, PC Sanders, to conduct it. The 19-minute interview between PC Sanders and the complainant was video and audio recorded. [ 9 ] JL is the complainant’s mother. She was born in New Brunswick and is now 32 years old. She has an eight year old year son from a previous relationship.

A couple of years after he was born, she became pregnant with the complainant. The defendant is the

father. However, the parties separated in 2011, before the girl was born. Custody and access is governed by a court order; she has custody and the defendant has access on weekends. JL explained that he would pick up the complainant each Friday and return her on Sundays. [ 10 ] JL testified that on April 7, 2016 she was at a neighbour’s home. The complainant was in the home playing with the neighbour’s daughter. As they sat at the kitchen table, the complainant came into the room and said, “Mommy, Daddy ate my patoon”. This upset JL because the defendant had once told her that patoon means “private parts”.

This discussion arose because within the preceding year, the complainant had said that word and when JL told the defendant about it, the latter said he had told their daughter that she could use that word when referring to her vagina. [ 11 ] JL testified that she immediately took the complainant to the couch in the living room and asked “is there anything else you need to tell mommy”. Her daughter replied, “daddy punched me in the face and ate my patoon”. JL explained that she could not understand this as she had never seen marks on her daughter’s face after the weekend visits with the defendant.

JL left her neighbour and took her daughter home. [ 12 ] JN lives in the same housing complex as JL. She confirmed that on April 7, 2016, while the two women enjoyed a glass of wine at her home and their children played upstairs, the complainant came into the kitchen and suddenly said, “daddy ate my patoon”. She testified that when JL heard this, her “jaw dropped” and when JN asked what it meant, JL replied “pussy”. JL and the complainant left soon after. JN testified that she has had limited contact with JL since this incident and has never met the defendant.

In cross- examination, JN agreed that JL told her she had discussed the allegations with her daughter and had struggled with the direction from police not to do so. [ 13 ] The next day was a Friday and the defendant arrived to pick up his daughter. JL told him their daughter said “daddy ate my patoon”. She testified that he laughed and replied, “really, I can’t believe that, did she really say that?”. Lacking “hard evidence” and confused, JL said nothing more as the defendant took the complainant away for the weekend. [ 14 ] When the defendant returned on Sunday, JL confronted him and raised the issue again.

The complainant went into the home while her parents talked on the porch. JL testified that the defendant said the he did not want her to know but “it’s been happening a long time”. He said that he had not said anything because he did not want the police or FACS involved and explained that their daughter had been “going down on me”. JL understood this to mean that her daughter had placed her mouth on her father’s penis. The defendant added that this had happened more than once and he blamed JL’s brothers for exposing the complainant to this sexual act.

JL testified that as soon as the defendant left, she sat on the couch and was “traumatized”. [ 15 ] That evening, after the complainant was put to bed, JL decided she would telephone the defendant to resume the conversation and asked her neighbour, CD, to secretly witness the discussion. JL explained she did this because of a prior experience when an allegation she brought to the attention of authorities was not pursued because of a lack of corroboration. Her neighbour agreed to the request. JL contacted the defendant and put the telephone on speaker mode.

In the discussion that followed, the defendant repeated and elaborated upon what he had said earlier. The neighbour took notes of the conversation and presented these to the court. The defendant elaborated on his earlier disclosure that his daughter had, on several occasions, attempted to touch his penis with her hand or mouth. He suggested she had been exposed to “porn or something” and blamed others for this. [ 16 ] At trial, JL presented as stressed and emotional.

In cross-examination, she too often appeared confused by simple questions such as, ‘Did you comply with the police direction not to discuss the allegations with your daughter’. When pressed on her answer that she could not recall, she pleaded trauma. [ 17 ] Jodi Nicholls works at FACS. She interviewed JL in April 2016. She found her to be “scattered and upset and lacking in focus”. Ms. Nicholls instructed JL not to discuss the allegations with her daughter.

She testified that JL “had a hard time understanding this”. [ 18 ] The complainant was subsequently placed in counselling sessions, some of which included meetings with Ms. Ferguson at FACS. She is a member of the Ontario College of Social Workers and, currently pursuing a Master’s Degree, with a specialty in clinical trauma and attachment therapy involving children. However, she is not specifically designated as having a particular expertise with children. She testified that for the past five years she has used play therapy as the medium for children to express themselves. [ 19 ] Ms.

Ferguson was aware that JL had alleged the defendant had acted inappropriately toward his daughter and that charges had not been pursued because complainant had not disclosed any sexual abuse to the police. She met with the complainant nine times between June and November 2016. She testified that the therapy she conducted was child led and that its purpose was therapeutic, not investigative. On the 9 th session, on November 23, she began by playing a three minute movie entitled, “My body belongs to me”. Ms.

Ferguson described the movie as age appropriate in which a young boy talks about good and bad touches and about how he felt on a bad touch by his uncle. According to Ms. Ferguson, when this scene was played, the complainant covered her vaginal area and said, “yuk, my dad did that to me”. Later, as the child played, she said her “patoon” had been touched. Ms. Ferguson testified she did not know what that meant and asked the complainant to draw it on a “body template”. In the drawing, the complainant highlighted the vaginal area. [ 20 ] After completing the drawing, the complainant went to the dollhouse area. Ms.

Ferguson asked her to show how her father had touched her with the use of dolls. The dolls available to the complainant included a human looking baby doll and puppets. Ms. Ferguson testified that the complainant did the following, without any prompting or interference from her: She picked up a baby doll, carried it, undressed it, said “this is what my dad did”, and demonstrated licking of the vagina while the doll was held over her face, laying on its side, and laying on its back with legs spread; She stopped and picked up a female puppet and gave a male puppet Ms. Ferguson.

The complainant pointed to the female puppet and said, “this is me and you are daddy”. Holding the female puppet, she said to the male puppet, “you are yucky, you are gross, you are not supposed to touch me”

She stopped and picked up a zebra puppet, hid the female puppet behind it and said,” you are ok”, as she stroked it. [ 21 ] Ms. Ferguson asked the complainant where this had happened and was told “at daddy’s house in dad’s bed”. When asked how often, the complainant shrugged. Ms. Ferguson reported these events to her supervisor and was told to stop the therapy sessions pending investigation by the police. [ 22 ] PC Amanda Sanders is a member of the Child Abuse Unit. She testified that she was asked by another member of the unit, PC Bozza, to interview the complainant.

She did so on January 18, 2017 from 9:34 AM to 9:53 AM. The interview is video and audio recorded. After identifying herself as a police officer and asking age appropriate questions about the difference between telling the truth and telling lies, the complainant promised to tell the truth. [ 23 ] The discussion began with questions about school and the complainant’s favourite things and then moved on to body parts. The following are the relevant excerpts: P.C. SANDERS: Any other parts on your body that your bathing suit covers? Complainant: (Indicates vagina.) SANDERS: Right there? Okay. Okay.

Who's allowed to touch that area on your body? C: Me. SANDERS: You, right. Has anybody else ever touched that area on your body? C: No. ……….. SANDERS: What about if you ever needed help in the bathtub, has anybody ever helped you? C: Yeah. SANDERS: Who's helped you? C: Momma. ……… SANDERS: Has anyone ever helped you? C: No. SANDERS: No? Okay. Has anybody ever touched that area on your body? C: This? SANDERS: Mm-hmm. C: No. SANDERS: No? Okay. So boys and girls are a little bit different, right? Do you know that… C: Yes. ……. SANDERS: And what kind of private parts do boys have? C: Boys-, patoons(ph)?

SANDERS: Pardon? C: Patoons? SANDERS: Patoons? And what's that? C: Patoon. SANDERS: What's a patoon? C: Patoon means you're going to, to swim with, with, with your-, your private parts. SANDERS: Okay. Have you ever seen a boy private parts?

C: Y-, no. SANDERS: No? What does a-, what's a boy private parts look like? C: I don't know. SANDERS: You don't know? C: And I still don't know. SANDERS: Is it the same as a girl private parts? C: No. ……….. SANDERS: How come it's not the same as a girl private part? C: I really don't wanna hear it. I wanna go with my momma. SANDERS: Okay. Just a few more minutes. I just wanna make sure that you know what parts of the body's they are, 'cause you seem like you're a big girl. You're in SK, and I wanted to see if you knew what kind of body parts people had. C: I don't know. SANDERS: You don't know?

C: I don't know what… SANDERS: Okay. C: …body parts. SANDERS: Do you have any brothers or sisters? C: I have a brother. SANDERS: You have a brother? And how old's your brother? C: Seven. …….. SANDERS: And what's his name? C: [XXXX] ……. SANDERS: Have you ever seen [XXXX]’s private parts? C: No. SANDERS: No? C: It's gross, he never licked (inaudible) private parts. SANDERS: How come? C: Only my daddy. SANDERS: What? C: Only my daddy licked my private parts. SANDERS: I'm sorry? C: And everybody does it. Oh.

SANDERS: I just didn't hear what you said, you said only my… C: Daddy's, uh, eaten my-, licked my private parts and ate it. SANDERS: Only your daddy's licked your private parts? C: Yep.

SANDERS: Tell me about that. C: He ate it, too. SANDERS: Tell me about that. C: I-, my daddy was being-, he was trying to be bad and bad and bad, bad. He wants to be bad. It-, but, oh, right, I don't wanna hear it now. SANDERS: Okay. Who's your daddy? C: I don't know. SANDERS: I don't know him either, I've never met him. What's his name? C: Daddy. SANDERS: Daddy? Okay. And what do you mean by he, he licked your private parts? What do you mean by that? C: And ate it… SANDERS: What… C: …because he was trying to be mean and eat my private parts, and be selfish eating private parts.

SANDERS: And did he say anything when that happened? C: No. He just licked and then it-, and I laid in, in bed and then he, he did this in circles and then he licked my private parts and eated it. SANDERS: Can you show me what your body was doing? How your body was? C: Like this (demonstrates) . SANDERS: Okay. And where was your body? C: (No verbal response.) SANDERS: Where did it happen? C: I don't know. SANDERS: Were you on a plane, on a… C: No. SANDERS: …train, or something… C: No. SANDERS: …else? C: On something else. SANDERS: What? C: On daddy's bed. SANDERS: On daddy's bed? C: Yeah. SANDERS: Okay.

And what happened next? C: He ate my patoon, and then he licked it. SANDERS: And, and what do you mean-, what do you use to eat? C: Food. SANDERS: Okay. And when you say that he ate your patoon, what area on your body is that? C: (Indicates vagina.)

SANDERS: Okay. And did you have clothes on? C: I don't really know. SANDERS: Okay. And how did that feel? C: Nothing. …… SANDERS: Okay. And you said it happened on daddy's bed? And what was daddy's body doing? Can you show me? C: (Demonstrates.) SANDERS: So was daddy laying down or sitting up, or something else? C: Uh, turning his body like a circle eating my patoon. SANDERS: Okay. And what did-, what was he wearing? C: I don't know. SANDERS: Pardon? C: I don't know. SANDERS: You don't know? Okay. C: Can I still get out? SANDERS: Okay. In-, just in a few minutes, okay?

I just wanna hear a little bit more about that. Can you come sit down for one sec? ……. SANDERS: Okay. And how did, how did your daddy eat it? Your patoon? C: I really wanna go. …….. SANDERS: So what kind of body part did your daddy use to eat your patoon? C: (Indicates mouth.) SANDERS: And what's that? C: Mouth. SANDERS: Mouth, okay. And what part of his mouth did he use? CHRISTINE: (Indicates tongue.) SANDERS: What's that? CHRISTINE: Tongue. SANDERS: His tongue, okay. And what did that feel like? C: It's ticklish. SANDERS: Okay. C: Can you… SANDERS: And… C: ...stop? I don't wanna hear it. SANDERS: Okay.

And did, did he touch any other parts of your body? C: I still don't wanna hear it. SANDERS: How come? C: 'Cause I wanna go see my momma.

SANDERS: How come you don't wanna hear it? C: 'Cause I wanna go see my momma. SANDERS: Okay. Pretty soon. What happened after that happened with your dad? C: I still don't wanna hear it. SANDERS: How come? C: 'Cause I really wanna see my momma. That's it. ……… [ 24 ] The complainant is now in grade one. She testified, by video link, from a room adjacent to the courtroom. She demonstrated how she understood the difference between the truth and a lie and promised to tell the truth. The aforementioned video was played for her to watch.

She did not sit still for much of the video and interrupted several times to say it made her feel frightened. At one point she said to me, “I hope you can try not to be scared of this video like I am.” [ 25 ] When asked, after the video was played, if she remembered “talking to the lady in the movie”, the complainant answered, “a little bit.” In response to further questions, she said the movie is “about me and I’m scared to watch it.” [ 26 ] The following questions were asked by Crown counsel and answered by the complainant: Q: When you talked to that lady in that room did you tell her the truth? A: Yes.

I didn't know all the things, [inaudible], i didn't know, a lot i didn't know Q: The things that you told her about your body parts were they the truth?

A: Ahhhh Other than I couldn’t do the laying down the circle thing the circle thing right Q: I don't know what that means what’s the circle thing A: It’s like Q: For the record the witness is lying on the ground, [XXX] is lying on the ground A: [inaudible], I couldn’t do that Q: Alright now we talked about private parts do you remember that A: No, a little bit A: You’re a lot older than when you saw that video, do you remember that do you agree with me A: Yes, I remember when I was five Q: Alright do you remember now watching that, making that movie A: A little bit, I think so, I didn't, no, I didn't know Q: Is that ok, so I’m not sure, did you say yes you remember making that video or no you didn't make that video A: Um I didn't know that I was making that video Q: Oh, you didn't know that you were making that video but you remember that movie now you're watching it (yes, nodding her head) A: ... inaudible no Q: When you were speaking to the lady in the video you were trying to tell the truth A: Yes [ 27 ] Cross examination was brief as it was difficult to direct the complainant to the allegations in question.

She repeated she was scared to watch the movie and then asked to come into the courtroom. I said she could do so. She entered the witness box and completed her testimony. She presented as unafraid and curious about her surroundings, including my robes. When I thanked her for coming, she said “thank you for coming, thank everybody for coming”.

Section 715.1 [ 28 ]

Section 715.1 permits a videotaped statement of a complainant under the age of 18, on enumerated offences, including those alleged in this case, to be admitted for proof of its contents if (1) it was made within a reasonable time after the alleged offence, (2) the complainant describes the act complained of, and (3) the complainant, while testifying, adopts the contents. [ 29 ] In determining the reasonableness of time, the court must balance a number of factors, the most important being the

reasons for the delay and the impact of delay on the child’s ability to accurately recall the events in issue: R. v. P.S., (ON CA), [2000] O.J. No. 1374 (C.A.) at para 71. In this regard, it has been recognized that (

a) children often delay disclosure; (

b) somedelay may be necessary depending on where the child resides and whether facilities are available; and (

c) some delay may be necessaryfor a prior investigation to determine the seriousness of the allegations: R. v. D.O.L. (supra) at paras 75-77 [30] The test for adoption does not require a present recollection of the events in question. Indeed, that is a major reason for s.715.1. The witness need only testify to having a present memory of having given the statement with the intent to be truthful. Adoptionis a test for admissibility and is not to be equated with ultimate reliability.

If a court rules the statement has been adopted, the videobecomes evidence of the events described, as if the witness were giving the statements on the videotape in open court. An adoptedvideotaped statement should, together with the viva voce evidence given at trial, comprise the whole of the evidence-in-chief of thecomplainant: R. v. C.C.F. (supra) at para 45 [31] The allegations in this case involve allegations of ongoing sexual abuse over a period of time. JL testified that the defendantintroduced his daughter to the word “patoon” when she was three or four years old.

The child initially uttered it at the home of JN whenshe was four years old in April 2016. In the days that followed, she refused to be interviewed by the police. The video statement wastaken in January 2017, after a play therapy session during which the complainant disclosed details of the abuse. It is likely thatcomplainant’s mother influenced her decision to speak to the police but the video record suggests most of the words spoken are her ownand that she is able to recall events.

Having regard to these circumstances, as well as the child’s tender age, I am of the view that thestatement in question was made within a reasonable time. The concern about the influence of JL on the complainant can be addressed indetermining ultimate reliability and does not trouble me on the issue of threshold reliability. [32] I conclude that the other criteria for admissibility are also met. The complainant understood the difference between a lie and atruth and promised she would tell the truth.

She had a limited attention span and was reluctant to watch the video record or to talk aboutthe allegations in question. With some prodding, complainant eventually acknowledged “making the movie” and adopted it. [33] This is not a case in which the complainant did not recall the statement; rather, she did not wish to be exposed to it, or discuss it. When asked at trial about the allegations, said she did not “want to hear it”. This phrase is also used by the child during the videointerview. Notwithstanding this, the complainant does reveal details of the alleged abuse.

In this regard, certain comments made in trialtestimony support the inference that the complainant did listen to the video statement and does recall her prior allegations. In particular,in her interview, she told the officer that the defendant had licked and ate her patoon and pointed to her vaginal area. In recounting thisact, the complainant described the defendant as having made a circling motion with his body.

In trial testimony, when asked if she hadtold the officer the truth, the complainant agreed and then laid down on the floor and stated, “Other than I couldn’t do the laying downthe circle thing the circle thing right”. The Principled Exception to the Hearsay Rule [34] Hearsay is an out of court statement offered for the truth of its contents. It is presumptively inadmissible because of the dangersassociated with it. However, where the hearsay presents minimal dangers and its exclusion would impede accurate fact finding, it maybe admitted.

One of the routes to admission is the principled exception to the hearsay rule. This requires that the twin criteria ofnecessity and threshold reliability are met on a balance of probabilities: R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787. [35] Necessity is established when the evidence in question is reasonably necessary to prove a fact in issue and includes situations inwhich the witness is unable or unwilling to provide an accurate and frank recital of events: R. v. F.(W.J.) (1999), (SCC), 138 C.C.C. (3d) 1 (S.C.C.). Unwilling usually means the witness has recanted or professes not to remember anything.

Asalready noted, with respect to the application of

section 715.1 that is not the case here. This is not an adult who finds it stressful totestify. This is a six year old child who does not want to discuss the things she previously said her daddy did to her. To be clear, thecomplainant does not appear traumatized by the court proceedings per se. When not faced with the details of the allegations shepresented as vocal and social (albeit, distracted and restless). The problem is that acts she has alleged frighten her; she does not want to“hear it” or talk about it.

I find that necessity is established. [36] Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficultyof testing it. This can be accomplished by showing there are adequate substitutes for testing truth and accuracy (procedural reliability) orthere are sufficient circumstantial guarantees that the statement is inherently trustworthy (substantive reliability). The former can beestablished by substitutes for traditional safeguards, such as a video recording of the statement, the presence of an oath, and a warningabout the consequences of lying.

Substantive reliability depends on an assessment of the circumstances in which the statement wasmade and any evidence that confirms or conflicts with it. See generally, R. v. Bradshaw, 2017 SCC 35 , [2017] 1 S.C.R. 865 [37] The procedural substitutes are not present with respect to the initial statement made by the complainant to her mother and JN orthe acts and words attributed to the complainant during play therapy.

Accordingly, the admissibility of these two hearsay statements aregoverned by the principles of substantive reliability. [38] In Bradshaw (supra), the Supreme Court of Canada held that in determining whether corroborative evidence is of assistance inthe substantive reliability inquiry, a trial Judge should:

(1) Identify the material aspects of the hearsay statement that are tendered fortheir truth;

(2) Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;

(3) Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statements; 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. [39] The initial statement by the complainant was short, simple, and spontaneous (“Daddy ate my patoon”).

Leaving aside anycredibility issues with respect to her mother that may arise from the fact she is separated from the defendant, the utterance was also heardby a neighbour, about whom there are no such concerns. The brevity of the statement alleviates worries about whether it was properlyheard by the witnesses and conveyed to me in court.

[ 40 ] The second statement to Ms. Fergus raises more challenging issues. The defendant’s statement to JL suggests others are to blame for exposing the girl to pornography or abusing her. This speculation does not trouble me given the level of sexually explicit details given by such a young girl in the strikingly similar play therapy hearsay and video statement. There is also the possibility that Ms. Ferguson lied, misperceived, or wrongly remembered her observations.

However, there is no suggestion of untruthfulness and cross- examination did not show that her trial testimony is inaccurate. [ 41 ] I find that the complainant’s initial utterance and her words and gestures during play therapy meet the test of threshold reliability. As noted with respect to the

section 715.1 application, this ruling on admissibility does not necessarily impact on the question of ultimate reliability. What this evidence means with respect to findings of fact and/or inferences remains to be decided. Released: May 11, 2018 Signed: Justice J. De Filippis