R v TS, 2022 ABKB 819

Court of King’s Bench of Alberta Citation: R v TS, 2022 ABKB 819 Date: 20221207 Docket: 190606798Q2 Registry: Calgary Between: His Majesty the King Crown - and - T.S. Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the alleged victim, HS (including, the accused TS) must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on December 13, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision

On Voir Dire to determine admissibility of hearsay statements of the Honourable Justice D.A. Labrenz _______________________________________________________ A. Introduction [ 1 ] The accused, TS, faces an allegation that she committed an aggravated assault upon her daughter, HS, between March and July of 2017, along with a further allegation of aggravated assault involving HS which is said to have occurred on August 20 th , 2017.

TS was also charged over roughly the same period with failing to provide HS with the necessaries of life. [ 2 ] HS was born on September 13, 2014, and was only 2 years of age at the time of these allegations. The birth of HS was unexpected as TS did not realize that she was pregnant. Upon birth, Alberta Children’s Services applied almost immediately to put HS in care.

Most of HS’s tender years have been spent in the care of foster parents by reason of a permanent guardianship order [“PGO”]; although, at other times, HS has been in the day-to-day care of TS. [ 3 ] The caseworker who applied for the PGO indicated that HS’s neonatologist stated that HS likely suffered an extensive brain injury one to two days before delivery, and further that HS will suffer from extensive medical difficulties including impairment of motor skills, learning, cognitive function, along with associated social delays.

This case worker also reported that the neontologist said that HS would suffer cortical blindness and hearing loss. The medical records disclose that HS suffered a cytotoxic brain injury, which was confirmed by magnetic resonance imaging. [ 4 ] HS has required significant ongoing therapy, which includes occupational, speech, and physiotherapy. HS has been under the active care of a neurologist, along with a pediatrician. HS also suffers, at irregular intervals, with seizures.

Regardless of the diagnosis, HS historically has encountered some difficulty with her speech, along with some impairment of her fine and gross motor skills. [ 5 ] Joanna Busse who presently cares for HS as her private guardian, does not describe and was not asked about any ongoing difficulty with respect to HS’s speech, motor skills, or cognition. Ms. Busse said, however, that HS is active, happy, and possesses a love of drawing. [ 6 ] There is a history of HS becoming injured while in the care of TS. [ 7 ] On February 17, 2017, while in the TS’s care, HS received medical treatment for a broken elbow.

An investigation commenced concerning HS’s injuries; however, investigators reached no conclusion that would implicate anyone with criminal wrongdoing. [ 8 ] On August 20, 2017, while in her mother’s care, hospital staff admitted HS into the South Health Campus Hospital with a displaced fracture to the proximal shaft of her right femur, along with a fracture to her pubis, which is in the inferior portion of HS’s pelvis. The medical staff also observed partial thickness burns to both of HS’s hands extending from the dorsal aspects of her fingers, to circumferentially around each wrist joint.

The scar tissue formed because of the burns caused all of HS’s fingers to become significantly contracted. The available evidence suggests the burn injury to HS’s hands occurred in March or early April of 2017. [ 9 ] A police investigation into HS’s injuries commenced. [ 10 ] The Crowns seeks to admit for the truth of their contents, the following hearsay statements made by HS: 1. A statement made to Joanna Busse in November of 2017; 2. A statement made to a physiotherapist and overheard by Ms. Busse. Ms. Busse could not remember the timing of this statement but indicated that it was sometime in 2018; 3.

A statement made in the presence of Carolyn Fuss, Joanna Busse and Heather Allison on April 24, 2018; 4. A statement made to Heather Allison on April 26, 2018; 5. A statement made to Heather Allison on May 9, 2018; 6. A statement made to Michella Sawatzky on November 5, 2018; 7. A statement made to Michella Sawatzky on December 10, 2018; 8. A statement made in the presence of Michella Sawatzky on May 16, 2019; and, 9. A statement made to Michella Sawatzky on June 11, 2019. B. The Hearsay Statements

1. The November 2017 statement made to Joanne Busse [ 11 ] Ms. Busse, who has fostered 35 children, initially fostered HS as a baby in September of 2014. Ms. Busse first met TS in July of 2016 when a caseworker asked her to facilitate visits with TS and her younger biological sister. After HS’s second birthday, the caseworker organized visits with TS and JH, who is HS’s biological father. [ 12 ] In late December of 2016, HS’s caseworker advised Ms. Busse that HS could now live with TS on a full-time basis. Ms. Busse subsequently transferred HS into the care of TS on January 6, 2017. Ms.

Busse, at least initially, provided respite care for HS. [ 13 ] Ms. Busse welcomed HS into her home on March 2, 2017, for a period of four days. At that time, Ms. Busse had not seen HS since January. HS did not have injured hands. After March 7, 2017, Ms. Busse did not see HS again until November of that same year when she agreed to provide respite to HS’s then foster mother – Melanie Sam. Both of HS’s hands had suffered burns. [ 14 ] Children’s Services placed HS in the care of Ms. Sam in August of 2017 (when HS was discharged from the hospital). Subsequently, Ms.

Sam transferred HS back to the full-time care of Ms. Busse in January of 2018. [ 15 ] It was in November of 2017, at a time when Ms. Busse agreed to provide respite to Ms. Sam, that HS made her first disclosure to Ms. Busse. [ 16 ] While making the 45-minute drive to her home, Ms. Busse noticed HS playing with the gloves that covered her injured hands. Ms. Busse said, “I’m really sorry that your hands got burned, honey.” Ms. Busse initially indicated that HS said in response to her comment, “My Mom and Dad burned them under hot water.” In cross examination, Ms.

Busse agreed that she told police that HS said, “My Mom and Dad burned my hands.” Ms. Busse explained that HS made several disclosures and that sometimes HS would say “burned me in hot water,” and sometimes she would just say “burned my hands.” [ 17 ] Although the prosecution does not seek admission of statements overheard by Ms. Busse at another time when HS was playing with a Barbie in the bathtub, Ms. Busse described HS as being “in a trance.” Ms. Busse initially indicated that HS said, “Mom and Dad didn’t mean to hurt you.” After refreshing her memory from a police statement, Ms.

Busse agreed that HS actually said, “I’m sorry I hurt you.” Ms. Busse clarified that HS kept repeating, “You’re fine. You’re okay. I’m sorry.” [ 18 ] In cross examination, Ms. Busse agreed that she did not remember the exact words that HS uttered in the bathtub. Ms. Busse agreed that she did not tell the police anything about HS saying, “I’m sorry I hurt you.” In addition, Ms. Busse agreed that she did tell police that when HS was playing with a Barbie she said, “My Mom mad, my Dad mad.” Ms. Busse also agreed that she did not tell the police anything about “not meaning to hurt you,” or “I’m sorry.” 2.

The statement made in the presence of a physiotherapist in 2018 [ 19 ] Ms. Busse indicated that sometime in 2018 when HS was at a physiotherapy appointment she said to the physiotherapist, “My mom burned my hands.” It is likely that Ms. Busse is referring to the same incident reported by Carolyn Fuss and Heather Allison as occurring on April 24, 2018. 3. The statement made in the presence of Carolyn Fuss, Joanna Busse and Heather Allison on April 24, 2018 [ 20 ] Carolyn Fuss is a physiotherapist who began working with HS in September of 2015. Ms.

Fuss alluded to receiving information that HS was born with seizures and a brain injury. Ms. Fuss also advised that HS had asymmetry in her movements and was favouring her left side because of right hemiplegia, which is a decreased use of her right side. Ms. Fuss detailed the treatments provided to HS. This involved both some progression and regression in HS’s physical condition depending upon the timing. [ 21 ] On April 24, 2018, Ms. Fuss indicated that HS made a disclosure in one of the clinic rooms found in the Okotoks Health and Wellness Centre. At the time, Joanne Busse and Heather Allison were also present.

Heather Allison, at the time, was a child development facilitator (community aide) with the Cause and Effect Foundation who started working with HS in January of 2018. Ms. Allison said that HS had a behaviour specialist who worked directly with her, along with an occupational therapist, a speech therapist, and a physiotherapist that she was seeing regularly. [ 22 ] Ms. Fuss, when describing the circumstances of HS’s disclosure, said that Ms. Busse had asked her to look at HS’s scars on her right leg following the surgery to repair her broken femur in August of 2017. Ms.

Fuss indicated that HS just made the statement, “Mommy put my hands in hot water and burned me.” Ms. Fuss responded, “I know.” Ms. Busse gave HS a hug. Ms. Fuss described HS as being calm and described the utterance as being made in passing. Ms. Fuss said that she looked at the scars on HS’s right leg and they appeared to be fine. Ms. Fuss made a note of HS’s utterance following the appointment and indicated that the note she made was placed in quotation marks to represent the exactitude of what HS said. [ 23 ] Ms. Fuss denied that they spoke about HS’s injured hands in front of HS. Ms.

Fuss did say, however, that she felt that the burns to HS’s hands resulted from an inflicted injury. [ 24 ] Ms. Allison also described HS as being calm and matter of fact when making her utterance. Ms. Allison recalled HS saying, “Mommy put my hands in the hot water.” Ms. Allison agreed that she probably did not make a note of this utterance until sometime between May 9 and May 28 when preparing for her police interview. Ms. Allison believed that TS had burned HS hands. 4. The April 26, 2018, statement made to Heather Allison

[ 25 ] Ms. Allison described driving in her car when HS said, “Somebody put my hands in the water and I just cried, dot dot dot, and Mommy said, dot dot dot.” Ms. Allison explained that the “dot dot dot” references refer to when she could not understand what HS said. Ms. Allison agreed that HS said things that she did not hear, and other things that she did not understand. Furthermore, Ms. Allison agreed that this may not be a full and complete rendition of what HS said. 5. The May 9, 2018, statement made to Heather Allison [ 26 ] Ms.

Allison said that when she was driving HS to school, HS said, “Heather, Mom put my hands in hot water,” and then later said, “and I just cried.” Ms. Allison also said that it was possible that she misheard HS, but explained, “I would have put it as accurately as I possibly could, but you’re right, it’s based on my recollection.” Ms. Allison further confirmed that she had several discussions with Ms. Busse about HS’s injuries, and that HS might have been present for those conversations. 6. The November 5, 2018, statement made to Michella Sawatzky [ 27 ] Ms.

Sawatzky was similarly employed by the Cause and Effect Foundation and began directly working with HS as a child development facilitator in September of 2018. Ms. Sawatzky indicated that she was aware that HS came to the Happy Place Preschool in January of 2018 – at a time when Ms. Sawatzky cared for another child. Ms. Sawatzky made notes regarding the statements she attributed to HS. [ 28 ] Ms. Sawatzky described a preschool writing activity involving HS as a participant. After HS completed this activity, Ms. Sawatzky said that HS came to her and said, “Michella, my Mom put my hands in hot water.” Ms.

Sawatzky confirmed that she was not aware before this date as to how HS’s hands became injured. 7. The December 10, 2018, statement made to Michella Sawatzky [ 29 ] Ms. Sawatzky described coming driving home from preschool with HS in the back seat of a motor vehicle. Ms. Sawatzky said that HS repeatedly asked if the houses they drove by were her home. When they neared HS’s house, Ms. Sawatzky spoke to HS about a park, and asked if HS had been sledding. HS said in a whiny voice, “no that’s scary,” and said, “I don’t want my ‘nother Mother to burn my hands.” Ms.

Sawatzky responded by telling HS that would not ever happen again. 8. The statement made in the presence of Michella Sawatzky on May 16, 2019 [ 30 ] Ms. Sawatzky described HS playing with play-doh at a community activity. Another girl asked HS what happened to her hands. HS said, “My ‘nother Mom - Mother and Dad - burned them.” The girl asked the why and how of how the injury to HS’s hands occurred. HS said, “She put them in hot water.” The girl asked HS if her hands hurt, and is she mean? HS nodded her head, yes. After another question, Ms. Sawatzky interjected, and described HS as sullen and quiet. [ 31 ] Ms.

Sawatzky agreed that the statements attributed to HS constituted her best attempt to be accurate. Ms. Sawatzky also agreed that regardless of the actual words used, HS attributed her injuries to both her Mother and her Father. 9. The June 11, 2019, statement made to Michella Sawatzky [ 32 ] Ms. Sawatzky described driving HS home from a movie theatre. They were speaking about HS going to kindergarten and Ms. Sawatzky was explaining that she would not be able to accompany HS. Ms. Sazatzky said HS spontaneously exclaimed, “Michella, Mommy Jo took me to my bad Mom’s house, and she kept burning me.” Ms.

Sawatzky told HS that would never happen again. C. Applicable Law 1. The Principled Approach [ 33 ] A hearsay statement is an out-of-court statement that is tendered for the truth of its contents. Because hearsay is declared outside of court, it is difficult for the trier of fact to assess whether it is truthful. Most often, it is not taken under oath; the trier of fact is precluded from observing the demeanour of the witness; and the truth of what is asserted cannot be tested through contemporaneous cross examination.

Relatedly, the hearsay statement may not be accurately recorded, and the trier of fact cannot easily investigate the declarant’s perception, memory, narration, or sincerity: R v Bradshaw, 2017 SCC 35 at para 20 . [ 34 ] Hearsay evidence is presumptively inadmissible. This general exclusionary rule recognizes the difficulty of assessing the weight to be given to a statement made by a person who has not been seen or heard and has not been subjected to cross examination.

The concern is that untested hearsay may be afforded more weight than it deserves: R v Khelawon, 2006 SCC 57 . [ 35 ] The presumption against admissibility may be surmounted in those situations where the proponent establishes on a balance of probabilities that the proposed evidence falls into a categorial exception (subject to challenge under the principled approach requirements of necessity and reliability: R v Starr, 2000 SCC 40 ), or satisfies the twin criteria of necessity and threshold reliability under the principled approach: Bradshaw , at paras 22-23 . a. Necessity

[36] The necessity requirement is founded on society’s interest in getting at the truth; rather than simply losing the value of theevidence, is it in the interests of justice to admit the evidence in its hearsay form. [37] The necessity criterion is flexible and applies not only to the unavailability of the witness, but also the unavailability of thetestimony: Khelawon, at para 78.

Necessity is equally made out where the declarant cannot testify because of illness or death, or wherethe witness recants or cannot remember. [38] Necessity and reliability work in tandem in the sense that if the reliability of the evidence is sufficiently established thenecessity requirement can be relaxed: Khelawon, at para 86: R v Baldree, 2013 SCC 35 at para 72.

The obverse, however, is not true.Low threshold reliability of a statement is not overcome by high necessity: R v Furey, 2022 SCC 52. [39] Where the witness is physically available, and there is no evidence suggesting that the witness will suffer trauma by givingevidence, the witness’s evidence should not as a rule be pre-empted by hearsay: R v Parrott, 2001 SCC 3.

In other words, there is nopresumption that a vulnerable witness such as a child, or one with a disability, is unable to testify in other that that the trier of fact mightmeaningfully assess the evidence: Parrott, at para 22. [40] On the other hand, there is no absolute rule that evidence must always be called to establish necessity. Where it is apparentfrom the circumstances before the trial judge that the witness cannot give useful evidence, the judge may infer that the statements arenecessary in the absence of such evidence.

This may be the case, for example, when a child witness is very young: R v F(WJ), (SCC), [1999] 3 SCR 569 at para 37; Parrott, at paras 23-25. Indeed, necessity may be self-evident in the case of very youngchildren: F(WJ), at para 41. b. Reliability [41] The threshold reliability standard is high. The statement must be sufficiently reliable to overcome the specific hearsay dangerspresented: Bradshaw, at para 32. Threshold reliability should not be confused with ultimate reliability.

Threshold reliability refers to anadmissibility determination only and is established when the hearsay is sufficiently reliable to overcome the difficulty of testing it:Bradshaw, at para 26. The question of ultimate reliability is for the trier of fact and the assessment of threshold substantive reliabilitymust be carefully undertaken to avoid usurping the trier of fact’s role: Bradshaw, at para 41.

The threshold question involves askingwhether the hearsay is sufficiently reliable such that the trier of fact is in a position to evaluate the truth of the statement in the absenceof contemporaneous cross examination: Khelawon, at paras 35, 48-49, 61. [42] To properly assess the question of threshold reliability, the trial judge must identify the specific hearsay dangers presented bythe statement and carefully assess whether the facts surrounding the utterance of the statement offer sufficient circumstantial guaranteesof trustworthiness to compensate for those dangers: R v Hawkins, (SCC), [1996] 3 SCR 1043 at para 45.

Thesedangers relate to the declarant’s perception, memory, narration, or sincerity, and the relevant danger must be defined with precision topermit a realistic evaluation of whether the identified dangers have been overcome in the absence of contemporaneous crossexamination: Bradshaw, at para 26. [43] The dangers posed by hearsay may be overcome, generally speaking, in one of two ways: by establishing substantivereliability, or by establishing procedural reliability. Occasionally, and cautiously, both procedural and substantive reliability mightcombine to establish threshold reliability.

Caution is required because admissibility should not be founded upon insufficient proceduralsafeguards combined with insufficient circumstantial guarantees of trustworthiness, such that there is inappropriate compensation for theidentified hearsay danger: Bradshaw, at para 32. [44] Procedural reliability is established where there are adequate substitutes for testing truth and accuracy.

Substantive reliabilityis met where there are sufficient circumstantial or evidentiary guarantees establishing that the statement is inherently trustworthy:Bradshaw, at para 27, Khelawon, at paras 61-63; R v Youvarajah, 2013 SCC 41 at para 30. [45] Procedural reliability concerns itself with whether there is a rational basis to evaluate the statement, while substantivereliability asks whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternate explanations forthe statement other than the declarant’s truthfulness or accuracy: Bradshaw, at para 40 [46] Procedural reliability involves employing substitutes for testing the evidence such as a video recording of a statement, thepresence of an oath, and a warning about the consequences of lying.

However, some form of cross examination of the declarant isusually required, such as at preliminary inquiry, or the cross examination of a recanting witness at trial: Bradshaw, at para 28. [47] For a statement to be admissible by reason of substantive reliability it must be inherently trustworthy.

To determine if thestatement is inherently trustworthy, the trial judge should consider the circumstances in which it was made and the evidence (if any) thatcorroborates or conflicts with the statement: Bradshaw, at para 30; Khelawon, at paras 4, 62, 94-100; R v Blackman, 2008 SCC 37 atpara 55. [48] While the threshold for admissibility based upon substantive reliability is high, it should not be seen as requiring absolutecertainty.

The trial judge must, instead, be satisfied that testing the evidence by contemporaneous cross examination is unnecessarybecause in the circumstances it can be said that the evidence is trustworthy and accurate: Bradshaw, at para 31. [49] At para 31 of Bradshaw, Justice Karakatsanis referred to various phraseology from the decisions of the Supreme Court thatdescribe the level of certainty that is required to establish substantive reliability: • when the statement is made under circumstances which substantially negate the possibility that the declarant was untruthful ormistaken: R v Smith, (SCC), [1992] 2 SCR 915 at p 933; • under such circumstances that even a skeptical caution would look upon it as trustworthy: Khelawon: at para 62;

• when the statement is so reliable that it is unlikely to change under cross examination: Khelawon, at para 107; Smith, at p 937; • when there is no real concern about whether the statement is true or not because of the circumstances in which it came about:Khelawon, at para 62; and, • when the only likely explanation is that the statement is true: R v U(FJ), (SCC), [1995] 3 SCR 764 at para 40 [50] When considering substantive reliability at the threshold stage, the trial judge must decide on the availability of competingexplanations before reaching the conclusion that contemporaneous cross examination would add nothing to the process: Bradshaw, atpara 40.

Substantive reliability is demonstrated if the trial judge can rule out any plausible alternative explanations on a balance ofprobabilities: Bradshaw, at para 49. [51] A trial judge must therefore identify alternative, even speculative, explanations for the hearsay statement.

Corroborativeevidence that is equally consistent with the truthfulness and accuracy of the statement as well as another hypothesis is of no assistance.Resorting to evidence that is supportive of the truth of the statement, but similarly consistent with alternative explanations, does not addto the statement’s inherent trustworthiness: Bradshaw, at para 48. [52] In Bradshaw, Justice Karakatsanis identified the proper use of corroboration in the context of determining threshold reliabilityas follows at paras 44-50: i.

Corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsaystatement that the moving party seeks to rely on. The focus must be on the aspect of the statement that is tendered for its truth. Thefunction of the corroboration is to mitigate the need to cross examine, not generally, but on the point that the hearsay is tendered toprove; ii. A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows that theonly explanation for it is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

If the hearsaydanger relates to sincerity, truthfulness will be the issue. If the hearsay danger relates to memory, narration, or perception, accuracy willbe the issue; iii. At the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances toovercome the specific hearsay dangers raised by the statement.

To overcome the hearsay dangers and establish substantive reliability,corroborative evidence must show that the material aspects of the statement are unlikely to change under cross examination.Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows the only likelyexplanation for the hearsay statement is the declarant’s truthfulness about, or accuracy of, the material aspects of the statement.Otherwise, alternative explanations for the statement could have been elicited or probed through cross examination; and, iv.

As mentioned, the trial judge must identify alternative, even speculative, explanations for the hearsaystatement. [53] Beyond these considerations, trial fairness may involve factors beyond the inquiry into necessity and reliability.

Even if thesetwo criteria are met, the trial judge has a discretion to exclude hearsay evidence where the probative value is outweighed by itsprejudicial effect: Khelawon, at para 49. [54] Some courts have developed useful factors for the consideration of the trustworthiness or accuracy of a hearsay statement.Saull J, provided such a helpful list in R v Clarke, 2013 MBQB 26 at para 33: (

i) sincerity: • a demonstrable and reliable motive to be truthful at the time the statement was made, such as an oath or affirmation, andknowledge that lying was legally significant; • whether the witness was apprised of the fact that their statement was part of a police investigation, or whether there was anydiscussion as to the importance of the statement; • the presence or absence of a motive to fabricate, lie or mislead, and whether the statement was made under suspiciouscircumstances; • whether the witness was given an opportunity to change or modify the statement and asked to confirm the truth of its contents; • the availability of accurate evidence of the declarant’s demeanour at the time of the statement, such as an audio or video recordingof the statement; • the location where the statement was made and the associated influences related to truth-telling; • the role or influence of the person receiving the statement, particularly in cases involving statements solicited from vulnerablewitnesses; • the role or influence of the person receiving the statement, if that person was a “person in authority” capable of exerting someinfluence on the voluntariness of the statement; • whether there was a relationship between the accused or any other witness. (ii) perception:

• whether the event was considered significant to the declarant at the time they perceived it such that they would have been attentive; • whether the declarant was under the influence of alcohol or drugs at the time of the event being described; • whether the declarant was under duress, emotional turmoil or suffered from any mental illness at the time of the event being described; • whether the declarant had a peculiar means of knowledge. (iii) memory : An out-of-court statement becomes more or less reliable depending on the declarant’s ability to recall the relevant matters.

Factors relevant to memory include: • the passage of time between the event described and the out-of-court statement; • whether the event was memorable at the time, or if the declarant was under a duty to note or recall the event between the time it took place and the time of the out-of-court statement; • whether the declarant by reason of age, mental ability or other characteristic would have been unlikely to have an accurate memory of the matters in question. (iv) narration : This refers to the accuracy of the in-court report of the out-of-court statement.

Factors relevant to narration include: • whether the statement was made in response to leading, suggestive or coercive questions; • whether the declarant was under the influence of alcohol or drugs at the time the out-of-court statement was made; • whether the declarant was under a duty to clearly record or report the material elements of the event described in the out-of-court statement; • whether the statement was video recorded; • whether the conversations before the video recording were accurately reproduced; • whether the declarant was under duress, emotional turmoil or suffered from any mental illness at the time the out-of-court statement was made; • any issue related to the internal coherence (or lack thereof) of the statement, any ambiguity of language used, and any issue related to translation from the language or presentation of the out-of-court statement to the recipient or to the court; • the consistency or inconsistency of prior or subsequent statements. (

v) external circumstances: • whether there is any confirmatory or corroborative evidence. D.

Assessment of the Admissibility of the Statements made by HS [ 55 ] The utterances made by HS, as I earlier referenced, are undoubtedly hearsay as out-of-court statements that the Crown seeks to introduce for the proof of the truth of their contents. [ 56 ] I accept that each witness that testified overhearing HS making statements about her injured hands were credible. [ 57 ] I also accept that the statements attributed to HS were reliably recounted by the witnesses such that they should not be disqualified based upon unreliability. [ 58 ] The initial inaccuracy of Ms.

Busse’s testimony regarding the statement made by HS in November of 2017 was corrected by her when she refreshed her memory in cross examination from the statement that she made to the police in January of 2018. Ms. Busse’s uncertainty is explained both by the passage of time and because HS sometimes would say to Ms. Busse, “burned me in hot water” and sometimes HS would say “burned my hands.” Ms. Fuss’ accuracy is supported by the somewhat contemporaneous note she made of what HS said during the physiotherapy visit of April 24, 2018.

The May 9, 2018, statement made by HS to Heather Allison that “Mom put my hands in hot water” was recorded by Ms. Allison by way of a rather contemporaneous note. Ms. Sawatzky made notes regarding her interactions with HS everyday and was required to submit those notes in the course of her employment. Although Ms. Sawatzky subsequently lost her notes in a house fire, she was successfully able to refresh her memory from emails she wrote to the investigating police officer. Those emails were written with the assistance of Ms.

Sawatzky’s notes before they were destroyed in the fire. [ 59 ] As I have already stated, all utterances made by HS are sufficiently and reliably recounted such that they are not disqualified

by that reason from admissibility. In any event, incomplete recollection of micro context does not mean that the evidence is incapable ofinforming meaning and therefore relevance: R v Schneider, 2022 SCC 34 at para 76. More to the point, the making of a statement is amatter for the jury to decide and, by extension, concerns surrounding the reliability of what was said is a matter for the jury: R vUnderwood, 2002 ABCA 310 at paras 51-52. [60] The disclosure made to Ms. Allison on April 26, 2018 is more problematic. Ms.

Allison reported HS said, “Somebody put myhands in the water, and I just cried dot dot dot, and mommy said dot, dot, dot.” This statement is problematic because of the difficulties itpresents for the trier of fact to interpret and fully assess. However, unlike the circumstances considered by the Supreme Court of Canadain R v Ferris, (SCC), [1994] 3 SCR 756, this statement does not suffer from any unintelligible speech at the beginningof what was overheard. Again, if this utterance is admissible pursuant to principled exception, it is my view the trier of fact may receivethis statement.

It does appear, however, that the suggestion made by HS that “Someone put her hands in water, and she just cried” is atodds with other suggestions HS made attributing the harm to her hands to either Mom, or Mom and Dad. 1. The Principled Exception [61] The out-of-court statements HS made do not fit into any of the traditional hearsay categorial exceptions and must beconsidered on a threshold basis by utilizing the principles relating to the principled exception.

The Crown has an onus on a balance ofprobabilities to demonstrate that the hearsay reception of HS’s statements on a threshold basis is both necessary and reliable. 2. Procedural Reliability [62] The Crown does not suggest that there were adequate substitutes for contemporaneous cross examination at trial based onprocedural reliability. The reliability of the statements made by HS depend entirely on substantive reliability, that is, establishing thatthere are no real concerns about whether the statements made were true because of the circumstances in which they came about:Khelawon, at para 62. 3.

Necessity [63] Defence counsel argues that the Crown has not satisfied the necessity requirement because the Crown has not met its onus todemonstrate either the unavailability of the witness or the unavailability of the testimony.

Counsel further argues that the decision madeby the Crown not to call HS was a purely tactical one. [64] The Crown, in response, refers to the video taken of the interview of HS by a Detective of the Calgary Police Service onSeptember 11, 2017, and argues that HS did not at that time have the maturity to be a competent witness. [65] I agree with the Crown that the video demonstrates, at least on that occasion, a 2-year-old who reasonably contented herselfby eating her Goldfish crackers and drinking her juice. HS was communicative; however, not all of her speech was easily discernible.

Ido accept, however, that the witnesses who testified in the voir dire would have had a greater understanding of HS’s speech based upontheir familiarity with HS and her speech patterns. [66] The video demonstrates that HS was unresponsive to the questions asked by the interviewing Detective; however, it is evidentfrom the video that Detective Spence was careful not to inappropriately ask leading questions of HS as she attempted to determine thecircumstances behind HS’s injuries. [67] While HS is 8 years old presently, and suffered a brain injury at birth, I acknowledge the Crown’s submission that asking HSas an 8-year-old child about an admittedly traumatic event that occurred when she was 2 years old is unlikely to uncover an independentmemory of those events.

Instead, HS is more likely to repeat what she has previously said as opposed to possessing an independentmemory of the incident that injured her hands. [68] I also acknowledge the argument of the Crown that testifying would result in trauma or emotional damage to HS; whilenoting, at the same time, I do not have evidence supporting this submission.

I do agree, however, that it is difficult to imagine that HSwould not experience some trauma, or emotional damage, while testifying at trial. [69] I also acknowledge that I do not have HS’s evidence as to what, if anything, she recalls about the circumstances surroundingher injuries from over 5 years ago. I also do not have evidence from HS that testifying at trial will be traumatic.

In short, the evidence Iheard discloses very little about HS’s present circumstances other than she is active and has a love of drawing. [70] As reviewed earlier, the Supreme Court of Canada in Parrott, at para 77, cautions that if a witness is physically available, andthere is no suggestion that the witness will suffer trauma while attempting to give evidence, the requirement for the witness to testifyshould not be pre-empted by hearsay, unless the judge has first heard from the witness and determined testimonial competence. [71] Justice McLachlan in the Supreme Court of Canada decision of F(WJ) stated that the Crown need not adduce evidence inevery case to explain the inability of a child to testify.

Justice McLachlin stressed that the criterion of necessity must be given a flexibledefinition and must not be approached on the basis that a particular case fits into a preordained category. Necessity is established wherethe trier of fact cannot expect to get evidence of the same value from the same or other sources: F(WJ), at para 34. There is no absoluterule that evidence must be called in every case with respect to the issue of necessity.

Where it is apparent from the circumstances beforethe judge that the child cannot give useful evidence, the judge might find out of-court statements are necessary, absent evidence: F(WJ),at para 37. [72] Although HS is presently 8 years old, I agree with the Crown that having her testify to events that occurred at the tender ageof 2 years, and over 5 years removed, much like the Quebec Court of Appeal decision referred to by the Supreme Court at para 37 of

F(WJ) (R v P(J), (1992) (QC CA), 74 CCC (3d) 276), permits me to come to the self-evident conclusion that theHS’s testimony would not be presently probative. [73] I conclude, in all of the circumstances, that the Crown has on a balance of probabilities established that receipt of HS’shearsay statements is necessary. 4.

Substantive Reliability [74] I come to a different conclusion regarding the question of substantive reliability and would not admit HS’s hearsay statementsbecause the Crown has not demonstrated on a balance of probabilities that those statements are substantively reliable such that crossexamination would not meaningfully contribute to the truth-seeking purpose of the trial. a.

Crown’s Argument [75] The Crown commenced its argument by suggesting that the admissibility of the hearsay evidence of HS is strongly supportedby the statements of principle regarding the admissibility of hearsay under the principled exception as developed by the Supreme Courtof Canada in R v Khan, (SCC), [1990] 2 SCR 531. [76] The Crown argues that HS’s utterances regarding her injury occurred spontaneously, that is, naturally and without prompting.The Crown also argues that HS had no motive to falsify her story.

The Crown also argues that much like the factual circumstances inKhan, when HS described her injuries, she was speaking about a topic about which you would not expect a 2-year-old to have any priorknowledge or experience. [77] The substantive reliability of HS’s utterances, the Crown argues is corroborated by the expert evidence of Dr. Nickerson, aburn specialist, and Dr. MacPherson who was qualified to provide expert opinion evidence regarding the cause and mechanism ofinjuries to children. Both experts opining that the injuries were consistent with hypotheticals that would suggest inflicted injury.

Inparticular, the Crown points out that Dr. MacPherson is of the opinion that the description provided by TS to various people, includingDetective Spence, of HS standing at a sink with her hands under running water is not plausible. The Crown suggests, instead, that what isplausible is that someone immersed HS’s hands into scalding water. [78] The Crown further submits that the corroborating evidence demonstrates that TS had exclusive opportunity and the injurieswere inflicted, as opposed to accidental.

Additionally, the Crown points out that although HS variously refers to Mom, or Mom and Dad,HS consistently stated that the injuries to her hands were not accidental and that someone placed her hands in hot water and burned them. [79] Regarding HS’s ability to differentiate between Mom and Dad, the Crown suggests that it is impossible to know how HSdistinguishes between “mom” and “dad” because of her young age. Relatedly, the Crown points to the discussion HS had with the younggirl who asked HS about her hands in the presence of Ms. Sawatzky on May 16, 2019.

HS first said that her “’nother mother and dadburned, them” but when ask how that occurred, HS said, “she put them in hot water.” [80] The Crown further suggests HS was consistent in her statements made to a number of individuals that someone burned herhands, referring in this context to the following passage from R v Bernard, 2018 ABCA 396 at para 21: Turning to this case, there is ample justification for confidence in the truthfulness of the complainant’s hearsay statement. The factasserted in the statement for the truth of its content is that the complainant was subjected to sexual assault.

There are considerationsconsistent with that assertion, namely that she was found near a gravel pit in a dishevelled, upset and disturbed condition asking for helpbecause she was a victim of a serious crime. The fact that she made similar contemporaneous statements on the same topic to herdaughters and investigators, to whom she would have no reason to lie, is also behaviour explaining the existence of the hearsay whichlends support to its reliability, because they tend to rule out the possibility of concoction, misreporting of the statement, or coincidence:Bradshaw at para. 54.

It is noteworthy that she does not purport to identify her attacker in that hearsay evidence. The fact that the hearsayis not targeted upon the party opposing its admission is another explanation for its source which reduces the dangers. [81] Finally, the Crown argues that the inconsistencies in the statement given by HS are a matter for the trier of fact and notproperly a threshold reliability consideration. b. Defence Argument [82] Defence Counsel, on behalf of TS, argues that the reliability criterion cannot be satisfied on the evidence.

Referring to para 49of Khelawon, Defence reminds the Court that the purpose of the reliability criterion is to ensure the integrity of the trial process. Even inthose circumstances where hearsay evidence is required, it is not admissible unless it is sufficiently reliable to overcome the dangersarising from the difficulty of testing it. [83] Concerning the timing of the statements made by HS, Defence Counsel points out that the Crown’s theory is that the injuriesto HS’s hands occurred in March or April of 2017. This effectively means that the first disclosure made by HS to Ms.

Busse inNovember of 2017 was some 7 or 8 months away from the relevant events. HS’s final disclosure to Ms. Sawatzky occurred in June of2019, which was approximately 26 to 27 months from the time of the injury to HS’s hands. [84] Defence Counsel also points out that after HS’s arrival in hospital in August of 2017, HS was extensively treated by medicalprofessionals, including, doctors, nurses, speech pathologists, occupational therapists, and audiologists.

As expected, there wassignificant and immediate intervention because of HS’s injuries, which intervention included social workers, police, and the variousmedical professionals who treated HS’s injuries, including her burned hands. The immediate removal of HS from TS’s care followed thesuspicion that TS was responsible for having inflicted her daughter’s injuries.

[ 85 ] Defence argues that this is important because the first attribution of injury to TS does not occur until November of 2017, following a significant number of professional interventions. Notably, the interview of HS by police conducted in September of 2017 did not result in any explanations from HS as to how her injuries were caused. Defence Counsel argues from the significant contact HS had with those intervening in her care, there is a significant possibility HS’s statements were innocently contaminated.

I agree that this is a realistic probability given HM’s young age and the likely suggestibility of a 2-year-old. [ 86 ] Relatedly, Defence Counsel identifies the evidence of numerous discussions amongst HS’s various caregivers concerning her injuries. Although these witnesses denied speaking about HS’s injuries in her presence, Defence Counsel argues that the witnesses were not always aware of HS’s whereabouts during those discussions. There is evidence supporting this suggestion from the witnesses.

Moreover, most of those who came into close contact with HS following her burn injuries were not called as witnesses in this voir dire . Defence Counsel suggests that it is extremely likely HS would have overheard some of these discussions regarding her injuries and therefore there was significant opportunity for contamination. [ 87 ] Ms. Busse, for example, was aware that HS’s injuries were under investigation before HS was returned to her care. Ms.

Busse thought that the police interviewed her in September of 2017 and although she could not advise as to when she was informed that TS was under investigation for those injures, Ms. Busse did recall during her police interview on October 20, 2018 she knew that HS’s injuries occurred when she was in her mother’s care. Ms. Busse assumed that either TS or HS’s biological dad were under investigation for her injuries. [ 88 ] Ms. Allison, the community development facilitator, said that she had discussions with Ms. Busse about HS from the time she was first introduced to HS. Ms. Allison confirmed that Ms.

Busse told her that HS’s injuries occurred when HS was in TS’s care. Ms. Allison also confirmed that she and Ms. Busse had several discussions about HS’s burned hands, and importantly confirmed that HS may or may not have been present for at least some of those discussions. [ 89 ] Ms. Sawatzky, as well, had an awareness of the allegation that TS had inflicted the injury on HS’s hands. Ms. Sawatzky did say, however, that it was not until HS made her first disclosure that she learned that TS burned HS’s hands in water. Before then, Ms. Sawatzky said that she was aware from Ms.

Busse that there were allegations of child abuse. Ms. Sawatzky also confirmed that Ms. Busse directed her to write down any disclosures HS made about her hands. Ms. Sawatzky said that she would not have had these discussions with Ms. Busse in the presence of HS; however, when pressed on this issue in cross examination, Ms. Sawatzky conceded that she could not say where HS might have been when HS’s injuries were discussed. 5.

The Hearsay Statements are not Admissible [ 90 ] I agree with Defence Counsel that the Crown has not demonstrated on a balance of probabilities the high standard required to demonstrate the threshold reliability of HS’s utterances. I say this because of the likelihood that this 2-year-old child’s statements have been contaminated or tainted by intervening events.

In my view there are plausible alternative explanation for HS’s statements; that is, the statements HS made about her injuries were inadvertently or innocently influenced by the many medical practitioners, caregivers, social services workers, foster parents, and similar supports who were involved in HS’s care and treatment. In other words, I cannot rule out on a balance of probabilities that these caregivers did not innocently or inadvertently contaminate HS’s utterances.

In coming to this conclusion, I have adopted the approach taken by Lauwers JA in R v McMorris, 2020 ONCA 844 at paras 31-34 as follows: A trial judge may rely on corroborative evidence to find that a hearsay statement shows sufficient substantive reliability to justify a finding of threshold reliability: Bradshaw , at para. 4 .

Karakatsanis J. set out the methodology and the principles for the use of corroborative evidence in the substantive reliability analysis in Bradshaw , at para. 57 : 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 the 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 alternative explanations 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.

Commentators have expressed concern that a degree of uncertainty might have been injected into the test by Karakatsanis J.’s use of the words “alternative, even speculative, explanations for the statement,” at paras. 48 and 57 of Bradshaw : See Hamish Stewart, “The Future of the Principled Approach to Hearsay” (2018) 23 Can. Crim. L. Rev. 183; Chris D.L. Hunt and Micah Rankin, “ R. v. Bradshaw : The Principled Approach to Hearsay Revisited” (2018) 22 Int’l J. Evidence & Proof 68. I do not share this concern.

In my view Karakatsanis J. was describing the trial judge’s anticipated reasoning process, not its culmination. The trial judge is required to consider “alternative, even speculative, explanations for the statement” while thinking through the reliability analysis. But speculative explanations must survive scrutiny under the lens of para. 49 in order to warrant a role in the determination of threshold reliability: While the declarant’s truthfulness or accuracy must be more likely than any of the alternative explanations, this is not sufficient.

Rather, the fact that the threshold reliability analysis takes place on a balance of probabilities means that, based on the circumstances and any evidence led on voir dire, the trial judge must be able to rule out any plausible alternative explanations on a balance of probabilities. [Emphasis added.] Any speculative explanation, in short, must be plausible on a balance of probabilities and any speculative explanation that does not survive such scrutiny is to be rejected.

Any explanation left over becomes the plausible candidate for assessment at step four; “the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the

statement.” In other words, not just any speculative explanation or fanciful idea suffices to abort the threshold reliability analysis – onlythose that are, on reflection, reasonably plausible. I take this to have been the intention of Karakatsanis J. in Bradshaw. This court’sdecision in R. v. Nurse, 2019 ONCA 260, takes that approach at paras. 105 ff, and so demonstrates that the test can be met, despiteProfessor Stewart’s concern that the Bradshaw test sets “a standard that is almost impossible to meet”: Stewart, at p. 193. See also thecomment by Lisa Dufraimont on Nurse to the same effect: 54 C.R. (7th).

And see R. v. Tsega, 2019 ONCA 111, leave to appeal refused,[2019] S.C.C.A. No. 106, at para. 26, per Hourigan J.A. [91] The three specific hearsay dangers raised by this voir dire relate to perception, memory, and narration. Did HS accuratelyperceived what happened to her? Did she accurately remember what occurred? Did she reliably communicate how her hands becameburned? [92] HS’s young age is not without significance; however, beyond a general appreciation that all 2-year-old toddlers are in theearly stages of development, I heard some evidence concerning HS as a 2-year-old.

I heard relatively extensive evidence from thewitnesses who testified during the voir dire who describe HS as a toddler, and I have received medical records in the evidence placedbefore me, which provide some insight into the many challenges faced by this two-year-old who suffered a brain injury at birth.

I havealso benefited from watching the videotaped interactions between a Calgary Police Detective and HS from September of 2017.Significantly, when considering the likelihood of the innocent contamination of HS’s utterances, HS did not during this interviewdescribe the how/why of her injuries, and I have not heard that HS made any disclosure concerning her injuries until 7 or 8 months afterthey occurred. [93] Although I accept that the witnesses who testified that they overheard HS’s utterances were careful not to suggest to HS that itwas TS who injured her hands, and I would expect the same cautious approach from the other individuals who cared for TS, I concludethat it is highly likely that HS overheard discussions concerning her hands and how they became injured.

Ms. Allison, for example,admitted that she had conversations with Ms. Busse and cannot now say whether HS was ever within earshot. While considering thelarge number of people who had contact with HS before her disclosures, I cannot rule out the plausible hypothesis that HS acted upon thesuggestions provided by what she likely overheard. It would be unsafe to admit HS’s utterances in the absence of some crossexamination of HS. [94] The medical evidence does not provide corroboration that would rule out the hearsay dangers in this trial.

I say this becausethe medical evidence does not address or alleviate potential concerns arising from the probable contamination of HS’s disclosures. Whilethe medical evidence could support the hypothesis that HS hands were immersed in hot water – the evidence cannot completely discountother reasonable possibilities. Similarly, while Dr. MacPherson and Dr. Nickerson as experts respectively in the cause and

interpretationof injuries, and burns, advise that the burn injuries to HS’s hands are consistent with intentional harm - they both cannot rule out otherpossibilities. The medical evidence, standing alone, does not and cannot speak to the how/why of the injuries HS suffered to her hands. [95] More to the point, the corroborative value provided by the medical evidence does not and cannot address the critical questionconcerning the accuracy of HS’s memory, and her various explanations as to how her injuries were caused.

The medical evidence doesnot/cannot alleviate the concerns arising from the considerable plausibility that HS’s evidence was tainted or contaminated by the manyindividuals who intervened to assist in her care. [96] The variances in the disclosures made by HS, which first attributed her injuries to Mom and Dad, or on other occasions toMom, or “Someone”, also raise the realistic prospect of contamination in the sense that they increase the probability that HS was merelyrepeating what she had overheard. In this regard, it is noteworthy that Ms.

Busse first believed that either of HS’s biological parentscould have been responsible for the injuries to her hands. [97] I wish to make it clear that I agree that mere inconsistencies as between the statements given by a declarant does notinevitably lend itself to the conclusion that the statements per se are incapable of being considered by the jury. I say this because suchinconsistencies, where the proponent has established threshold reliability, are a matter for the trier of fact: R v Workman, 1998 ABCA340.

I am concerned here, however, not with the weight given by the trier of fact to inconsistent statements – but with, the specifichearsay danger posed by HS’s susceptibility to contamination. In other words, I cannot on a threshold level basis conclude that HS’sstatements are of sufficient reliability to support the conclusion that cross examination would add little to the truth-seeking purpose of thecriminal trial. [98] The Crown argument suggesting that we do not know what HS appreciated when attempting to differentiate between “Mom”and “Dad” poses more difficulty to the Crown’s argument than it resolves.

I say this because the argument appears, at least minimally, toconcede a problem with the reliability of HS’s evidence. I would also note that there is no suggestion in the evidence that HS’s biologicaldad was present at the time of her injuries.

To repeat, the references to “Dad” in HS’s utterances speak to both the contamination of herstatements and the potentiality that HS did not possess a reliable ability to recall the injury to her hands. [99] While the Crown attempts to draw parallels between the evidence heard, and the foundational jurisprudence from theSupreme Court establishing the principled exception to the hearsay rule, such as in R v Khan, (SCC), [1990] 2 SCR 531- I do not agree that these authorities assist the Crown’s argument.

The disclosure of sexual assault made by the young child in Khan,involved a rather immediate utterance given within 15 minutes of leaving the doctor’s office. The statement there was provided with aspontaneity that does not exist here. Corroboration of the description of the sexual assault was founded in the mixture of saliva andsemen that was found on the 3 ½ year old girl’s tracksuit.

In Khan, unlike here, it is obvious as to why the physical evidencecorroborated the complainant’s perception, memory, narration, and sincerity. [100] I find that the Crown has not proven on a balance of probabilities that HS’s hearsay statements are reliable on a threshold basis.I recognize the likely Crown argument that TS gave explanations for HS’s injuries that are inconsistent with the medical evidence.

Iunderstand that the Crown will argue that TS told deliberate lies that are probative of her guilt as inferences drawn from the after-the-factconduct, and further that such conduct is probative of the Crown theory that TS intentionally burned HS’s hands. I further expect that theCrown will argue that TS did not seek medical assistance for HS’s burns and for that reason I can infer from the evidence that TSintentionally inflicted HS’s injuries.

[ 101 ] In my view, this argued use of the medical evidence, and the suggested inferences that might be drawn from the medical evidence combined with the after-the-fact conduct of the accused cannot be utilized to corroborate the utterances made by HS. To utilize the suggested available inferences from TS’s after-the-fact conduct in this manner to corroborate HS’s utterances strikes me as a form of impermissible bootstrapping.

This argument, in essence, suggests that I might utilize a threshold consideration of TS’s after-the-fact conduct to reach the conclusion that HS’s utterances are admissible on a threshold basis. I do not agree that this circular type of corroboration is available. The prejudicial nature of such an approach would surely outweigh any probative value in any event. [ 102 ] In the result, the Crown’s application to admit the hearsay utterances of HS as evidence in the trial is hereby dismissed.

Heard on the 7 th day of November, 2022 to the 10 th day of November, 2022 and the 14 th day of November, 2022 to the 16 th day of November, 2022 and the 21 st day of November, 2022 to the 25 th day of November, 2022 and the 28 th day of November, 2022 and the 30 th day of November, 2022 to the 2 nd day of December, 2022. Dated at the City of Calgary, Alberta this 7 th day of December, 2022. D.A. Labrenz J.C.K.B.A.

Appearances: Vicki Faulkner Elise Woodall Alberta Crown Prosecution Service for the Crown Katherine Beyak Foster Iovineli Beyak Kothari for the Accused _______________________________________________________ Corrigendum of the Reasons for Decision On Voir Dire of The Honourable Justice D.A. Labrenz _______________________________________________________ Minor typographical errors regarding spelling, grammar and punctuation corrections have been made throughout this decision.