



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 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 complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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)     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 victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

486.6(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.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.S., 2022 ONCA 305

DATE: 20220421

DOCKET: C68062

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.S.

Appellant

Jeff Marshman, for the appellant

Michael S. Dunn, for the respondent

Heard: January 17, 2022 by video conference

On appeal from the conviction entered by
    Justice Douglas K. Gray of the Superior Court of Justice on June 27, 2017, with
    reasons reported at 2017 ONSC 5459.

Feldman J.A.:

A.

Introduction

[1]

The appellant was convicted of two offences perpetrated
    on his niece when she was between six and eight years old, sexual assault and
    sexual interference. The convictions were based on the complainants unsworn,
    videotaped police statement, which the trial judge admitted into evidence by
    application of the principled exception to the hearsay rule, based on the requirements
    of necessity and threshold reliability.

[2]

At the preliminary hearing, less than two years after
    the police statement was taken, the complainant testified that she did not
    remember giving the police statement or anything about what she described in it.

[3]

In order to determine whether the complainant would
    be able to testify at the trial, the Crown arranged for a child psychologist to
    meet with her. The psychologist concluded that the complainant could not
    testify at the trial because it would be too traumatizing for her. The
    complainant was afraid that if she testified, she would be apprehended by the Childrens
    Aid Society (CAS) and taken from her mothers care, which is what happened
    after she gave the police statement. She told the psychologist that was why she
    testified at the preliminary hearing that she did not remember anything. The
    psychologist also gave her opinion that the police interview of the complainant
    was done in accordance with proper protocol, which is meant to ensure that the
    information provided by the child is as complete as possible and is not
    contaminated by the interviewers suggestions.

[4]

The Crown applied to have the hearsay video
    statement admitted into evidence at the trial on the basis that the complainant
    could not testify and the police statement had threshold reliability. The trial
    judge accepted the psychologists opinion that the complainant could not
    testify at the trial without being traumatized and that, if called, she would
    only repeat what she said at the preliminary hearing. He therefore ruled that the
    necessity requirement was met and that the complainant would not be called as a
    witness at the trial.

[5]

The trial judge also found that the statement
    should be admitted based on threshold reliability. He accepted the
    psychologists opinion that the police interview was conducted using the well-established
    interview protocol and also found that the complainant had no motive to
    fabricate the allegations. Having admitted the statement, he applied the test
    from
R. v. W.(D.)
, [1991] 1 S.C.R. 742, to all of the evidence, and
    concluded that the appellants guilt was established beyond a reasonable doubt.

[6]

The appellant does not challenge the necessity
    finding. He submits, first, that the trial judge erred in law by admitting the complainants
    police statement based on finding threshold reliability. Second, he submits
    that the trial judge misapprehended the evidence regarding motive to fabricate,
    and therefore erred by finding that the complainant had no motive to fabricate.
    The second error affected both his threshold and ultimate reliability findings.

[7]

I agree that the trial judge erred by finding
    threshold reliability, and in his positive finding that the complainant had no
    motive to fabricate. As a result, he erred by admitting the complainants
    police statement. I would therefore allow the appeal.

B.

Facts

[8]

The appellant lived with his sister, L.S., the
    mother of the complainant, E.B., and with E.B., who was between 6 and 8 years
    old during the relevant time period. The appellant was on probation. In March
    2015, L.S. called the appellants probation officer because she had some
    concerns about her brothers state of mind, his demeaning conduct toward E.B.,
    his anger, hoarding, and adult conflict in the house. The probation officer called
    the CAS, which was already involved with the family, and reported these
    concerns.

[9]

As a result of this communication, a CAS worker,
    Ms. T.S., went to E.B.s school and met with her on March 31, 2015. During that
    interview, E.B. told Ms. T.S. that the appellant had pulled down his zipper
    and she used a hand motion to demonstrate that he had masturbated. She said
    that she had touched his penis and seen white stuff. E.B. also told Ms. T.S.
    that the appellant called her a little bitch, that there was a lot of yelling
    in the home, and that she didnt really like the appellant. She said that she
    did not want to live with him anymore. She also told Ms. T.S. that she had seen
    a pornographic movie with the appellant in which a woman took off her clothes
    and the man was undoing his pants  and taking his penis in his hand and
    masturbating, which E.B. demonstrated by hand movements.

[10]

Ms. T.S. immediately called the local police and
    took E.B. to a station where she was interviewed by Officer Cunnington in a
    videotaped statement. The officer testified that he talked to Ms. T.S. first.
    She told him that E.B. had disclosed some alleged sexual touching by the
    appellant and that she did not want to live with him anymore. Ms. T.S. reported
    to the officer some specifics of what E.B. had told her.

[11]

The video interview took approximately 50
    minutes. Officer Cunnington explained to E.B. the purpose of the interview and
    that it was being recorded on video. He emphasized the importance of telling
    the truth and asked her if she understood the difference between the truth and
    a lie. He asked open-ended questions, but also would remind E.B. of things she
    had said to Ms. T.S. in order to jog her memory. E.B. told the officer that she
    was afraid of her uncle and that she had already told her mother and Ms. T.S.
    what had happened with her uncle.

[12]

The video interview was played in court and the
    trial judge summarized what E.B. disclosed in it. Early in the interview, she
    said that her uncle would unzip his pants and touch her right here, which she
    indicated by pointing to her vagina area. He told her to take off her pants and
    underwear. He also took off his pants. E.B. demonstrated with hand motions how
    he masturbated. She said she didnt like it but that she felt she had to say
    that she did. When her mother was returning home, her uncle pulled up his
    pants, zipped them and put on his belt, and she put on her underwear, pants and
    everything.

[13]

E.B. used the words penis, cock, and her private
    stuff without those words being suggested to her. She said that her uncle
    placed his cock in her private stuff. The officer asked E.B. what happened
    when her uncle did something with her private parts and she said that he put
    his penis in here, indicating her vagina, that she didnt like it, and that
    it felt gross. Officer Cunnington mentioned to E.B. that she had told Ms. T.S.
    about white stuff. E.B. at first responded that she didnt know about white
    stuff and did not remember anything about it, but later referred to it.

[14]

After the sexual contact, her uncle would tell
    her to watch a movie on TV. When the officer asked what kinds of movies she
    watched, E.B. said she watched Barbie, Harry and the Hendersons, and similar
    movies. The officer asked whether she ever watched any adult movies or any
    movies with [her] uncle. E.B. did not mention any pornographic movies in her
    response.

[15]

E.B. described how her uncle stopped when her
    mother came home and knocked on the door, which was locked with two locks. They
    would put on their clothes then open the door. Her uncle told her not to tell
    her mother. She told the officer that she had told her mother about it in the
    car when her uncle wasnt there.

[16]

When the officer left E.B. alone in the room for
    a few minutes, she sang to herself the following:

Some day I want day  I wanna live with my
    mom but not my uncle.
Its just  I just wanna
    live. I wanna just live. I wanna sleep. So watching you where  Im where, and
    I where am I? I am in a police officers. Yeah, yeah. Mm, mm. I
    was born in British Columbia. Its the truth. I am not lying. And so you
    go I, I, I  how many minutes is a (inaudible)? [Emphasis added.]

[17]

After consulting further with Ms. T.S., the
    officer returned and asked E.B. again to tell me a bit more about  your
    uncles penis and your vagina. She responded that he came from his room, told
    her to take off her clothes, then he stood in front of her and touched her
    vagina with his hands and it felt just nasty. She also said her uncle was playing
    with his penis, and that theres a little hole  in the middle and it comes
    out milk. It looked like plain gross milk, and it went on her stomach. He
    also asked her to describe how her vagina felt when her uncles penis was in
    there, and she said it felt just nasty but did not hurt.

[18]

The officer asked E.B. how she felt about the
    appellant. She responded: I feel nasty with uncle. The officer also
    asked E.B. how she feels about living with the appellant and she answered, I
    feel not even good.

[19]

Following this interview with E.B., the officer
    interviewed E.B.s mother, L.S., then briefed Ms. T.S. Ms. T.S. told him that
    as a result of the two interviews, she was apprehending E.B. and placing her in
    foster care. On the ride to the foster home, Ms. T.S. told E.B. that the reason
    the CAS was removing her was because her mother had not protected her from her
    uncle. E.B. told Ms. T.S. that she was worried about her mother but she was
    glad she would not be living with her uncle anymore. E.B. remained in foster
    care for almost one and one-half years, and was returned to her mother at the
    end of August 2016. However, CAS remained involved with E.B. and L.S. Ms. T.S.
    checked on E.B. at school once a month and had further interactions with L.S.

[20]

The preliminary inquiry was held in November
    2016. By this time, E.B. was nine years old. Officer Cunnington testified that he
    saw E.B. in the Crowns office before the preliminary inquiry, but she did not
    recognize him. E.B. testified under child-friendly conditions. After promising
    to tell the truth, she viewed her entire video statement, then testified that
    she did not remember the officer, the interview, or the events that she
    described in it, and maintained that position under cross‑examination by
    the appellants trial counsel.

[21]

Prior to trial, in the spring of 2017, the complainant
    was interviewed twice at the request of the Crown by Dr. Louise Sas, a
    registered psychologist, who was qualified to give expert opinion evidence at
    the trial. She discussed with E.B. the issue of her testifying in court. E.B. made
    it clear that she did not want to go to a trial about her uncle; that she was
    upset that after giving her statement, she was apprehended by the CAS and taken
    away from her mother; and that she was afraid that would happen again if she
    testified. Dr. Sas testified that E.B. admitted to her that at the preliminary
    inquiry, she had said she had forgotten everything, but in reality she had
    remembered, but she was too afraid to tell because she would be taken away
    again.

[22]

Dr. Sas prepared a report that was made an
    exhibit at trial, and testified as well on the
voir dire
.
[1]
The trial judge noted that her
    firm opinion was that to force E.B. to testify would unduly further traumatize
    her. On cross-examination by the appellants trial counsel, Dr. Sas
    acknowledged that a possible cause of trauma was the prospect of lying again,
    that is, if E.B. had lied in her statement, she would not want to lie again at
    the trial.

[23]

L.S., E.B.s mother, testified as a defence
    witness. As part of the child protection proceeding that allowed E.B. to be
    returned to her mother, L.S. had signed an Agreed Statement of Facts on April
    12, 2016. In that agreed statement, L.S. acknowledged that her daughter had
    been sexually abused by the appellant and that she, L.S., made a mistake by
    leaving E.B. in the appellants care, contrary to the CASs direction. At
    trial, L.S. took the position that she had only signed the statement because it
    was a condition of getting her daughter back. She said that E.B. loved her
    uncle. She also testified about school friends of E.B. who had told her about sexual
    body parts and white stuff coming out of a penis.

C.

Findings by the Trial Judge

[24]

There were two issues before the trial judge.
    The first was whether E.B.s videotaped police statement should be admitted into
    evidence under the principled exception to the hearsay rule based on the
    requirements of necessity and threshold reliability. If not, an acquittal would
    follow. If the statement was admitted, the second issue was, based on all the
    evidence, whether the Crown had proved the charges beyond a reasonable doubt.

[25]

The trial judge initially gave brief oral
    reasons for admitting the video statement based on the principled exception to
    the hearsay rule, then later gave written reasons. I will refer to the relevant
    aspects of the oral ruling in the analysis portion of these reasons.

[26]

In the written decision, on the first issue, the
    admissibility of the videotaped statement, the trial judge referred to the rule
    that hearsay is presumptively inadmissible for valid policy reasons, and in
    particular because the right to cross‑examine the declarant has been
    considered an essential component of an accused persons ability to make full
    answer and defence. However, following the Supreme Court of Canadas decision
    in
R. v. Khan
, [1990] 2 S.C.R. 531, and subsequent decisions, a
    hearsay statement can be admitted if there are sufficient indicia of reliability
    to overcome the dangers posed by the absence of contemporaneous cross-examination.
    The trial judge expressed the view that the absence of cross-examination was
    more important when the trier of fact is determining whether the case has been proved
    beyond a reasonable doubt than at the admissibility stage of the analysis.

[27]

The trial judge first found that the necessity
    criterion had been met in this case. From E.B.s testimony at the preliminary
    inquiry, it was clear that she was unable or unwilling to give any meaningful
    evidence as she purported to remember nothing about the interview or its
    substance. He also accepted the opinion of Dr. Sas that if called, E.B. would
    repeat what she said at the preliminary inquiry and would suffer significant
    trauma.

[28]

The trial judge then found that the threshold
    reliability requirement was also satisfied. He did so on two bases. First, he again
    accepted the evidence of Dr. Sas that Officer Cunnington had conducted the
    interview in accordance with the recognized protocol, using mostly open-ended
    questions posed in a relaxed atmosphere. The child understood the difference
    between the truth and a lie, she provided detailed information with physical
    descriptions, and there was some corroboration, if only on peripheral matters
    such as the layout of the apartment.

[29]

The second basis for finding threshold
    reliability, which the trial judge described as [o]f significance, was that
    he was satisfied that E.B. had no motive or reason to fabricate the allegations
    against her uncle.

[30]

The trial judge rejected the suggestion that the
    fact that E.B. might have discussed sexual matters with classmates may have
    influenced her description of what occurred and therefore undermined the
    reliability of her statement.

[31]

Having concluded that both necessity and
    threshold reliability were made out in this case, the trial judge admitted
    E.B.s statement into evidence.

[32]

The trial judge then turned to determine whether,
    based on all the evidence, the Crown had proved the charges beyond a reasonable
    doubt. The appellant did not testify in his defence. The trial judge first
    found that the evidence of L.S., who was called as a defence witness, did not
    add a great deal, and doubted her credibility. He then assessed E.B.s police
    statement. He found that it was necessary for him to make allowances for her
    age, relying on
R. v. W. (R.)
, [1992] 2 S.C.R. 122, at p. 133, where
    the court said that deficiencies in the evidence of a child are not as
    significant as they would be for the evidence of an adult. He used, as an
    example, E.B.s failure to mention to Officer Cunnington what she had told Ms.
    T.S. about watching a pornographic movie. He found that omission to be not
    overly significant.

[33]

The trial judge found that E.B.s description of
    the events should be accepted, relying on features similar to the indicia of
    reliability that he considered at the admissibility stage: that the statement
    was given to a person in authority within a reasonable time after the incidents
    described, that the proper protocol for interviewing children was followed, and
    that there was corroboration of some peripheral details.

[34]

Dealing with his finding that E.B. had no motive
    to lie, the trial judge stated that at this stage it had some significance
    but was not determinative. The trial judge viewed it only as one factor in the
    equation that, along with the other indicia of reliability that he found,
    supported his conclusion that the Crown had proved the case beyond a reasonable
    doubt.

[35]

Finally, the trial judge observed that the court
    was being asked to make a finding of guilt notwithstanding the fact that the
    accused had been deprived of the right to cross-examine his accuser. Although
    he noted that cross-examination is an important, if not essential, feature of
    a criminal trial, he found that the denial of the right to cross-examine was
    not fatal to conviction. He was satisfied that the evidence as a whole and
    particularly the hearsay statement of E.B. was sufficient to prove the
    appellants guilt beyond a reasonable doubt.

D.

Issues

[36]

The appellant raises three issues on this
    appeal:

1)

Did the trial judge err in law in his analysis of
    threshold reliability and by admitting the hearsay statement into evidence?

2)

Did the trial judge err by misapprehending the
    evidence and finding that E.B. had no motive to lie? This was relevant to both
    threshold reliability and ultimate reliability, although this appeal turns on
    the finding of threshold reliability.

3)

On a proper analysis, could the statement meet
    the high standard for threshold reliability and be admitted into evidence?

E.

Analysis

(1)

Issue 1: Did the trial judge err in law in his
    analysis of threshold reliability and by admitting the hearsay statement into
    evidence?

a)

General Principles: Admitting hearsay statements based on necessity
    and threshold reliability

[37]

Normally, evidence is presented at a criminal
    trial by witnesses who give their evidence in court before the trier of fact, the
    judge or the jury, and are available to be cross-examined on behalf of the
    accused. This process is in accordance with ensuring that the accused can make
    full answer and defence.

[38]

In general, where a witness who is called to
    testify has given a statement to police, that statement will not be admitted
    into evidence to prove the truth of its contents, because it is hearsay, a
    report of a previous statement:
R. v.

Khelawon
, 2006 SCC 57,
    [2006] 2 S.C.R. 787, at paras. 34-36. However, it can be used in some
    circumstances to refresh the memory of the witness, and to challenge the
    witness in cross-examination where there are alleged inconsistencies between
    the earlier statement and the witnesss in-court testimony.

[39]

Section 715.1 of the
Criminal Code
, R.S.C.
    1985, c. C-46, applies specifically to victims and witnesses under 18 who have
    given a video statement within a reasonable time after an alleged offence. Unless
    the judge is of the opinion that admission of the video statement in evidence
    would interfere with the proper administration of justice, the recording is
    admissible in evidence as part of the childs testimony in chief if, while
    testifying, the child adopts the contents of the video recording.

(1)

The Principled Exception: Necessity and
    Threshold Reliability

[40]

There are circumstances where relevant hearsay
    statements can be admitted under the principled exception to the hearsay rule, based
    on the two criteria of necessity and threshold reliability. If the statement is
    admitted, its ultimate reliability will be determined by the trier of fact as
    part of the analysis of proof beyond a reasonable doubt.

[41]

Sometimes the necessity criterion may be
    satisfied because the declarant of the statement has died or, for another
    reason, is unavailable to give the evidence in court:
R. v. Bradshaw
, 2017
    SCC 35, [2017] 1 S.C.R. 865, at para. 25. In those cases, the declarant will
    not be able to be cross-examined regarding the contents of the statement. There
    are other cases, however, where the necessity criterion is satisfied because
    the declarant has recanted the statement, such as in
R. v. B. (K.G.)
, [1993]
    1 S.C.R. 740, or has forgotten the statement. In those cases, depending on the
    circumstances, the veracity and accuracy of the contents of the statement may
    be able to be tested by cross-examining the declarant in court.

[42]

Despite necessity, no statement will be admitted
    unless the trial judge determines that the statement is sufficiently reliable to
    overcome the dangers associated with the trier of fact considering hearsay
    evidence. In the most recent Supreme Court discussion of the rule,
Bradshaw
,
    Karakatsanis J., writing for the majority, explained the threshold reliability
    standard and set out the four hearsay dangers at para. 26:

Threshold reliability is established when the
    hearsay is sufficiently reliable to overcome the dangers arising from the
    difficulty of testing it.
These dangers arise notably due to the absence of
    contemporaneous cross-examination of the hearsay declarant before the trier of
    fact.
In assessing threshold reliability, the trial judge must identify the
    specific hearsay dangers presented by the statement and consider any means of
    overcoming them.
The dangers relate to the difficulties of assessing the
    declarants perception, memory, narration, or sincerity,
and should be
    defined with precision to permit a realistic evaluation of whether they have
    been overcome. [Emphasis added; citations omitted.]

(2)

Approaches to Threshold Reliability: Procedural
    Reliability and Substantive Reliability

[43]

In
Bradshaw
, the court identified two bases
    upon which threshold reliability can be established, procedural reliability and
    substantive reliability: at para. 27; see also
Khelawon
, at paras.
    61-63;
R. v. Youvarajah
, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.
    These approaches may work in tandem and are not mutually exclusive. However,
    the threshold reliability standard always remains high:
Bradshaw
, at
    para. 32.

[44]

Procedural reliability addresses whether there
    are adequate substitutes for testing the truth and accuracy of the evidence, considering
    that it was not given in court, under oath, and under the scrutiny of
    contemporaneous cross-examination. The court identified the following
    substitutes: a video recording of the statement (for accuracy), the presence of
    an oath (for veracity), and a warning about the consequences of lying (for
    veracity). Importantly, the court emphasized that, in addition, for procedural
    reliability, some form of cross-examination of the declarant, such as
    preliminary inquiry testimony or cross-examination of a recanting witness at
    trial, is usually required:
Bradshaw
, at para. 28 (citations omitted).

[45]

Substantive reliability refers to indicia that the
    statement is inherently trustworthy, including the circumstances in which it
    was made as well as evidence that either corroborates or conflicts with the
    statement. Karakatsanis J. explained the substantive reliability standard in
Bradshaw
,
    at para. 31, by summarizing and endorsing the courts previous articulations:

While the standard for substantive reliability
    is high, guarantee as the word is used in the phrase circumstantial guarantee
    of trustworthiness, does not require that reliability be established with
    absolute certainty (
Smith
,

at p. 930). Rather, the trial judge
    must be satisfied that the statement is so reliable that contemporaneous
    cross-examination of the declarant would add little if anything to the process
    (
Khelawon
, at para. 49). The level of certainty required has been
    articulated in different ways throughout this Courts jurisprudence.
    Substantive reliability is established when the statement is made under
    circumstances which substantially negate the possibility that the declarant was
    untruthful or mistaken (
Smith
, at p. 933); under such circumstances
    that even a sceptical caution would look upon it as trustworthy (
Khelawon
,
    at para. 62, citing Wigmore, at p. 154); 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); when the only likely explanation is
    that the statement is true
(U. (F.J.)
, at para. 40).

[46]

The seminal case of
Khan
is an example
    of the type of circumstances that indicate that the statement is substantively
    reliable. In that case, a three and one‑half year old girl emerged from
    the doctors office with a semen stain on her clothing and immediately told her
    mother what the doctor had done to her. The child was too young to testify in
    court. McLachlin J. summarized the circumstances that suggested that the
    childs statement was reliable and addressed the concerns that would have been
    tested by cross-examination at p. 548:

I conclude that the mothers statement in the
    case at bar should have been received. It was necessary, the childs viva voce
    evidence having been rejected. It was also reliable. The child had no motive to
    falsify her story, which emerged naturally and without prompting. Moreover, the
    fact that she could not be expected to have knowledge of such sexual acts
    imbues her statement with its own peculiar stamp of reliability. Finally, her
    statement was corroborated by real evidence.

[47]

Consequently, the court could be satisfied that in-court
    cross-examination to test the childs statement was not needed as a substitute
    for contemporaneous cross-examination, because the issues that may have caused
    concern about the reliability of the statement were effectively answered by the
    circumstances themselves.

[48]

In
Bradshaw
, at para. 40, Karakatsanis
    J. explained that in assessing threshold reliability, the trial judges role is
    focused on whether in-court cross‑examination of the declarant would add
    anything to the trial process:

At the threshold stage, the trial judge must
    decide on the
availability
of competing explanations (substantive
    reliability) and whether the trier of fact will be in a position to choose
    between them by means of adequate substitutes for contemporaneous
    cross-examination (procedural reliability). [Emphasis in original.]

b)

Application to E.B.s police statement

[49]

The appellant submits that the trial judge erred
    in law by failing to apply the analysis required by the Supreme Courts case
    law to determining whether E.B.s statement met the high standard of threshold
    reliability. He argues that the trial judge erred in his determination that the
    absence of cross-examination was of limited relevance to the threshold reliability
    analysis. As a result, the trial judge failed to consider several case-specific
    hearsay dangers that would arise from admitting the statement without any
    opportunity for cross-examination, and whether there were sufficient substitutes
    to overcome those dangers.

[50]

I agree with the appellant that the trial judge improperly
    downplayed the importance of cross-examination in the threshold reliability
    assessment process.

[51]

In his brief oral reasons for admitting the
    statement, the trial judge stated that while the ability to cross-examine the
    child is a factor when deciding the case, it is not of particular relevance at
    this point. He reiterated that view in his written reasons, where he stated
    that lack of cross-examination was a feature of the analysis at both stages,
    but more important when considering proof beyond a reasonable doubt than at the
    threshold reliability stage.

[52]

In this case, the two most important of the four
    hearsay dangers identified by the Supreme Court in
Bradshaw
were perception
    and sincerity: whether the complainant accurately perceived what happened to
    her, and whether she was telling the truth. Despite the Supreme Courts
    direction that the scope of the inquiry must be tailored to the particular
    dangers presented by the evidence, the trial judge did not advert to these
    dangers:
Khelawon
, at para. 4. He did not consider the case-specific
    dangers that would result from admitting the statement without any opportunity
    for cross-examination.

[53]

By discounting the purpose and the value of
    cross-examination as a tool that could challenge the accuracy or veracity of
    the statement, the trial judge lowered the high bar for threshold reliability
    that the case law requires before hearsay statements can be admitted.

(1)

Case-Specific Hearsay Danger: Perception

[54]

In his reasons for finding that threshold
    reliability had been satisfied, the trial judge relied primarily on his
    acceptance of Dr. Sass opinion that Officer Cunningtons approach to the
    interview followed the well-recognized protocol where the child was made to
    feel comfortable, mostly open-ended questions were asked, she understood the
    difference between the truth and a lie, the information she provided was
    detailed and accompanied by physical descriptions, and there was some
    corroboration, but of peripheral details such as the layout of the apartment.

[55]

This protocol, however, does not assist in
    overcoming either of the hearsay dangers respecting the childs perception or
    truthfulness. As Dr. Sas explained in her evidence, the purpose of the
    interview protocol for alleged sexual abuse of a child is to ensure that the
    information the child provides is as complete as possible, and not contaminated
    by what she described as suggestibility factors. Therefore, the use of the
    protocol will give comfort that the child is not being led to say something by
    leading questions, suggestions, or reactions by the interviewer. However, that
    does not ensure that the child has not been influenced in her perception by
    something that occurred prior to the interview, or that she is telling the
    truth.

[56]

On the issue of E.B.s perception of what
    occurred, there was evidence from the CAS worker, Ms. T.S., that E.B. had told
    her that her uncle had shown her a pornographic movie where a woman took off
    her clothes, a man undid his pants, took his penis in his hand and masturbated.
    There was also evidence from L.S. that E.B. had friends at school who told her
    about body parts, nude adults interacting on television, ejaculation, how
    babies are made, and what a man does during sex. This is the type of
    information that can have the potential to influence a childs perception of
    what happened to her or her description of what happened, and would ordinarily be
    the subject of cross-examination to explore that possibility.

[57]

In his oral reasons for admitting the statement,
    the trial judge referred to two main areas where one might question the
    reliability of the statement. One area concerned discrepancies in the stories
    that E.B. told different people. The trial judge gave the example of the
    pornographic movie. He noted that E.B. told the CAS worker that she had watched
    a pornographic movie with her uncle and described its contents, but she did not
    mention it to the officer, even when he asked her pointed questions about
    whether she had watched any adult movies. He concluded that such discrepancies
    in her evidence are not fatal at this stage of the inquiry, but would be more
    relevant when deciding whether the statement can be relied on to prove guilt
    beyond a reasonable doubt.

[58]

Then in his written reasons, the trial judge made
    no further reference to the issue of the pornographic movie at all. He did,
    however, comment on the possibility that the complainant may have discussed
    sexual matters with classmates, saying that that would not detract from the
    reliability of her recorded statement regarding sexual abuse.

[59]

It is clear from these comments that the trial
    judge discounted the hearsay danger regarding the complainants perception of
    what occurred, and therefore failed to turn his mind: first, to how the hearsay
    danger that the complainants perception and description of what occurred with
    her uncle may have been influenced by seeing the pornographic movie; and second,
    to how that danger, and the danger from things she may have been told about sex
    by classmates, could be overcome without cross-examination, in order to satisfy
    threshold reliability.

(2)

Case-Specific Hearsay Danger: Sincerity

[60]

The other hearsay danger that arises with any
    statement is whether the declarant is being truthful or sincere. The trial
    judge considered that issue in two ways. The first was by noting that in the
    statement, the officer determined that the complainant knew the difference
    between the truth and a lie. The second was by finding that there was simply
    no motive or reason for the child to fabricate her allegations. I will address
    this second point in more detail later in these reasons.

[61]

The trial judge could not have been satisfied on
    this record that the difficulty of assessing the complainants sincerity in her
    police statement could be overcome. There were two serious issues with E.B.s
    sincerity.

[62]

The first was that having found necessity based in
    large part on the complainants testimony at the preliminary inquiry that she
    did not remember anything, the trial judge then failed to consider the relevance
    of what occurred at the preliminary inquiry and after it in assessing the
    threshold reliability of the complainants police statement. Specifically, the
    trial judge erred by failing to take into account that although she promised to
    tell the truth at the preliminary inquiry, the complainant disclosed to Dr. Sas
    that in fact she had not.
[2]
Therefore, the trial judge erred by failing to take into account that the
    complainant admitted to lying in court in these proceedings and by failing to
    consider how that would affect the threshold reliability analysis.

[63]

Second, the trial judge also did not advert to
    Dr. Sass acknowledgement that testifying in court could traumatize E.B. if she
    had lied in her police statement and did not want to lie again. Neither of
    these serious issues regarding the analysis of E.B.s sincerity could be
    followed up without cross-examination.

[64]

In addition, procedurally, while not exactly a
    recantation of her police statement, E.B.s preliminary inquiry testimony
    amounted to a repudiation of that statement. In
B. (K.G.)
, the Supreme
    Court was prepared to find that the threshold reliability of police statements that
    witnesses had recanted at trial could be established only because the witnesses
    were available at trial for cross‑examination, so that the court process
    for testing reliability would be in place. In this case, where the complainant
    was not available to be cross-examined in court, the trial judge was left to
    determine whether E.B.s police statement, which she later repudiated, was
    sufficiently reliable to overcome the dangers arising from the difficulty in
    testing it without any cross-examination:
Khelawon
, at para. 49.
    However, the trial judge did not address this issue.

[65]

Without in-court cross-examination, there was no
    substitute that could assist the court to address these serious issues
    regarding E.B.s sincerity. The fact that the police statement was taken using
    the proper protocol does not provide a circumstantial guarantee of veracity or
    a substitute for cross-examination, nor does the fact that the complainant was
    able to demonstrate she knew the difference between the truth and a lie when
    she gave her police statement, particularly when she had repudiated that
    statement under a promise to tell the truth at the preliminary inquiry.

(2)

Issue 2: Did the trial judge err by
    misapprehending the evidence and finding that E.B. had no motive to lie?

[66]

The second way that the trial judge addressed
    the hearsay danger that the declarant was not being sincere or truthful was by
    making the finding that the complainant had no motive to lie. This brings in the
    second ground of appeal raised by the appellant.

[67]

In his oral reasons for admitting the statement,
    the trial judge included in the indicia of reliability his conclusion that the
    complainant had no apparent motive to fabricate, stressing the word apparent.
    In his written reasons for admitting the statement, he put the point much more
    strongly, saying: Of significance, I am satisfied that there was simply no
    motive or reason for the child to fabricate her allegations against her uncle.

[68]

The problem with this finding is that the trial
    judge either misapprehended or ignored evidence that belied the conclusion that
    E.B. had no motive to fabricate the allegations. For example, E.B. made
    numerous statements to different people to the effect that she did not want to
    live with her uncle and wanted to live only with her mother. E.B. said this to
    Ms. T.S., the CAS worker; she said it to Dr. Sas; she said it in her police
    statement; and she sang it in the police interview room when the officer left
    her alone for a moment. She also told Ms. T.S. that she didnt really like
    her uncle, that he had called her a little bitch, that she did not like the
    conflict he caused at home, and that her mother and uncle were always fighting.
[3]

[69]

The trial judge did not address this evidence,
    and gave no explanation for his finding, in the face of this evidence, that E.B.
    had no motive to fabricate. This evidence could reasonably lead to the
    inference that E.B. might have told the story of sexual abuse and assault in
    order to have her uncle removed from the home. Without any cross-examination,
    that inference could not be discounted. By finding that the complainant had no
    motive to fabricate, the trial judge had to have ignored or discounted all of
    that evidence.

[70]

The Crown argues that the evidence on this point
    was mixed because L.S. testified that E.B. had a good relationship with the
    appellant and that E.B. loved her uncle. However, the trial judge had
    significant doubts about L.S.s credibility and noted that her natural
    inclination was to support her brother. If this evidence had formed any role in
    the trial judges finding of no motive to fabricate, in light of his rejection
    of L.S.s credibility, he certainly would have provided an explanation for
    relying on it.

(3)

Conclusion on Issues 1 and 2

[71]

In deciding that E.B.s statement satisfied the
    requirement of threshold reliability, the trial judge erred in law by failing
    to identify the specific hearsay dangers associated with the statement, based
    on the evidence of what the complainant disclosed to the CAS worker and to Dr.
    Sas, testified to at the preliminary hearing, and said in the statement itself.
    He further erred by failing to tailor his threshold reliability analysis to the
    specific hearsay dangers at play. As a result, he failed to determine whether
    there were procedural or substantive substitutes for contemporaneous
    cross-examination that could overcome those dangers, in a case where there
    would be no in-court cross-examination of the declarant.
[4]

[72]

In addition, he erred by making a positive
    finding that the complainant had no motive to fabricate, without explaining how
    that finding was available given the significant potentially contrary evidence
    in the record regarding her animus toward the appellant, and used that finding
    to support the reliability of the statement.

[73]

In coming to the conclusion that the trial judge
    erred by admitting the police statement, I am acutely aware of the challenges
    involved in eliciting evidence from children and the importance of ensuring
    that vulnerable children are adequately protected in circumstances where
    testifying may result in serious psychological harm. I am also mindful that the
    right to cross examine is a critically important feature of a criminal trial.
    In this case, given the serious concerns about the threshold reliability of the
    police statement, it was an error to admit it where the child was not available
    to be cross-examined on it.

(4)

Issue 3: On a proper analysis, could the
    statement meet the high standard for threshold reliability and be admitted into
    evidence?

[74]

In this case, there were no substitutes for
    contemporaneous cross‑examination on the police statement because E.B.
    was not able to testify at the trial and be cross-examined. However, there were
    significant procedural reliability and substantive reliability concerns at
    play. There was evidence that the complainants perception could have been
    influenced by what she heard from other children and from watching a
    pornographic movie. Further, there was evidence that could be seen to support a
    motive to lie. Finally, the complainant had made inconsistent statements about
    whether she remembered what had happened to her and whether she had told the
    truth when testifying on a promise to tell the truth at the preliminary
    inquiry.

[75]

The major circumstance that made the statement
    reliable in the eyes of the trial judge was that the officer who interviewed
    E.B. did so in the appropriate manner so that the statement was not tainted by
    any suggestions made by the officer. The trial judge also relied on some
    corroboration, but correctly noted that it was only on peripheral matters such
    as the layout of the apartment.

[76]

Using
Khan
as a comparison: the
    statement in the case at bar was not made immediately following the event; it
    was not made as a spontaneous disclosure by the complainant but came about as a
    result of the CAS worker questioning her about her uncle; the language and
    description of the event that the child used could have been influenced by what
    she had heard from other children and from watching a pornographic movie; the
    complainant had repudiated her statement under a promise to tell the truth at
    the preliminary inquiry; and the complainant had a possible motive to fabricate
    in order to have her uncle removed from the home as she wanted to live alone
    with her mother.

[77]

I conclude that without an adequate substitute
    for contemporaneous cross‑examination, the normal one being
    cross-examination at the trial, none of these concerns with reliability could
    be addressed and potentially overcome. The fact that the officer conducted a
    proper, non-suggestive interview is not a sufficient indication of substantive
    reliability to overcome the other reliability problems with the statement. As
    in
Khelawon
, it simply cannot be said that E.B.s evidence was unlikely
    to change under cross examination, such that cross examination would add
    little or nothing to the process: at para. 107; see also
Bradshaw
, at
    para. 31.

[78]

Consequently, had the trial judge undertaken the
    proper analysis, he would not have had the basis to admit the statement into
    evidence based on threshold reliability. As the Crown conceded at trial that
    the conviction was dependent on the admission of the statement, the appellant
    would have been acquitted.

F.

Disposition

[79]

I would therefore allow the appeal, set aside
    the conviction and enter an acquittal.

K.
    Feldman J.A.

I
    agree. Thorburn J.A.


MacPherson J.A. (dissenting):

[80]

I have read the draft reasons prepared by my
    colleague in this appeal. She concludes that the appeal must be allowed for two
    reasons:

[T]he trial judge erred by finding threshold
    reliability, and in his positive finding that the complainant had no motive to
    fabricate. As a result, he erred by admitting the complainants police
    statement.

[81]

With respect, I do not agree with these
    conclusions and the reasons supporting them.

(1)

The threshold reliability issue

[82]

On this issue, my colleague concludes:

I agree with the appellant that the trial
    judge improperly downplayed the importance of cross-examination in the
    threshold reliability assessment process.



By discounting the purpose and value of
    cross-examination as a tool that could challenge the accuracy or veracity of
    the statement, the trial judge lowered the high bar for threshold reliability
    that the case law requires before hearsay statements can be admitted.

[83]

I do not agree with this analysis and
    conclusion.

[84]

I begin with a brief recitation of the crucial
    facts that led to a police investigation, criminal charge, preliminary inquiry
    and trial. On March 31, 2015, a Childrens Aid Society worker came to the
    complainants school and interviewed the seven (almost eight) year-old
    complainant. Immediately following this interview, the worker drove the
    complainant to the police station.

[85]

At the police station, the CAS worker told
    Officer Cunnington that she had brought the complainant to the police station
    based on what she had been told by the complainant at school. Officer
    Cunnington proceeded to arrange to interview the complainant. The interview
    lasted about 50 minutes and was recorded. Two crucial points should be made
    about the interview.

[86]

First, the location and conduct of the interview
    were exemplary. The interview took place in a small private room with a
    comfortable couch and chairs. Only Officer Cunnington and the complainant were
    in the room. Officer Cunnington was friendly and polite. He asked simple,
    non-leading questions and there was nothing even remotely concerning or
    threatening about his demeanour, voice or language.

[87]

At the trial, Dr. Louise Sas was qualified to
    testify as an expert in child behavioural and clinical psychology, child
    memory, behaviours of victims of child sexual abuse, and child witnesses. She
    estimated that she had been qualified as an expert in Ontario courts about two
    hundred times.

[88]

Based on Dr. Sass expert report and trial
    testimony, the trial judge concluded:

[T]he interview was done in accordance with a
    protocol that was discussed in some detail by Dr. Sas, at page six of her
    report and in her evidence before me. I will not review those points except to
    note that there are nine separate points. It was Dr. Sass opinion that the
    interview was conducted in accordance with the protocol and the nine points that
    are listed in her report, and about which she testified were adequately
    established.

[89]

To this I would simply add, having viewed the
    interview, that this conclusion is entirely reasonable. In the context of an
    interview of a seven year-old girl about possible criminal sexual activity by a
    close relative, Officer Cunningtons structure and conduct of the interview
    were very impressive indeed.

[90]

Second, the performance of the seven year-old
    complainant throughout a 50-minute interview with a strange man in a strange
    room, and about an awkward subject matter, was also impressive. It needs to be
    recalled that at this juncture the complainant was answering questions about
    the same matter she had discussed with the CAS worker earlier in the day. She
    had not been taken into CAS custody (that happened after the interview), she
    did not know that her mother might be very unhappy about what she was saying,
    and she certainly did not know that she would not live with her mother for the
    next 17 months. Without all of this knowledge about the future that would flow
    from what she was saying (and which obviously had a role in what later happened
    at the preliminary inquiry and the trial), her answers to the police officers
    questions were clear, thoughtful and, I say again, impressive.

[91]

Against this backdrop, I turn to a consideration
    of my colleagues conclusion that the trial judge improperly downplayed the
    importance of cross-examination in the threshold reliability assessment
    process and thus lowered the high bar for threshold reliability by failing
    to address the significant procedural reliability and substantive reliability
    concerns at play.

[92]

I do not agree with this conclusion. While the
    trial judge considered cross-examination to be more important to ultimate
    reliability, he was alive to its role in the threshold reliability analysis. In
    his written reasons, he said that hearsay remains presumptively inadmissible,
    for valid policy reasons. Foremost of these is the lack of ability to
    cross-examine. He went on to remark that hearsay can be admitted only where
    there are sufficient indicia of reliability to persuade the judge that the lack
    of right to cross-examine can be overcome.

[93]

Further, the trial judges reasons show that the
    statement and its context convincingly address procedural and substantive
    reliability. Procedural reliability centres on whether the trier of fact will
    be in a position to rationally evaluate the evidence:
R. v. Khelawon
,
    2006 SCC 57, at para. 76. The trial judge noted several factors enabling a
    rational evaluation, including:

As observed by Dr. Sas, the interview was
    conducted in accordance with a well-recognized protocol.  It was conducted
    in a relaxed atmosphere.  The interviewee displayed no symptoms of concern
    at being interviewed.  For the most part, open-ended questions were used.

[94]

Moreover, at the beginning of the interview the
    complainant promised to tell the truth. Section 16.1(6) of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5, requires that a person under fourteen
    make such a promise instead of an oath before giving evidence. The complainant
    was seven years-old at the time of her police statement.

[95]

Officer Cunnington also told the complainant to
    correct him if he made a mistake. Dr. Sass report says she did so on three
    occasions. Most notably, when describing the assault, the complainant said she
    was lying down and the appellant was standing. The officer repeated that the
    appellant was standing on the bed, but the complainant corrected him to say he
    was standing on the floor.

[96]

In my view, all these indicia contribute to put
    the trier of fact in a position to rationally evaluate the evidence. The
    absence of contemporaneous cross-examination is serious, but the fact that the
    statement was video recorded, that the complainant promised to tell the truth,
    and that she corrected the officer on significant details all buttress the
    statements procedural reliability.

[97]

Substantive reliability describes a statement so
    reliable that it is unlikely to change under cross-examination:
R. v.
    Bradshaw
, 2017 SCC 35, at para. 31, or where the only likely explanation
    is that the statement is true:
R. v. U. (F.J.)
, [1995] 3 S.C.R. 764,
    at para. 40.

[98]

Here, the inherent trustworthiness of the
    statement emerges from the fact that its truth explains how the complainant was
    able to give such detailed descriptions of these acts. The same was true in
R.
    v. Khan
, [1990] 2 S.C.R. 531, where McLachlin J. (as she then was) relied
    on necessity and reliability to find that the trial judge could receive a three
    year-olds statement to her mother that she had been sexually assaulted by her
    doctor. Citing this courts decision in
Khan
, she noted that young
    childrenare unlikely to use their reflective powers to concoct a
deliberate untruth, and particularly one about a sexual act
    which in all probability is beyond their ken.
As such, the evidence of a
    child of tender years on such matters may bear its own special stamp of
    reliability: at p. 542.

[99]

In this case, the complainant gave a detailed
    description of sexual acts well beyond her development stage. She described her
    uncle masturbating (she called it playing with himself), she showed the
    officer how long the appellants penis was using her hands, she demonstrated
    how he pushed his fingers on her vagina, and described her uncle ejaculating
    onto her stomach: Dr. Sass Report, at p. 9. In my view, the inherent
    trustworthiness of her statement is the only likely explanation for her vivid
    descriptions.

[100]

I turn to a second component of my colleagues reasons on this
    issue, one she labels Case-Specific Hearsay Dangers  Perception and Sincerity.
    I will deal with these in turn.

(a)

Perception

[101]

My colleague finds that the protocol used to conduct the
    complainants interview did not ensure that the child has not been influenced
    in her perception by something that occurred prior to the interview, or that
    she is telling the truth. She points to evidence on the record that the
    complainant may have seen a pornographic movie where a man undid his pants,
    took his penis in his hands, and masturbated. Similarly, the complainant may
    have had schoolyard conversations about ejaculation, how babies are made, and
    what a man does during sex. This evidence, my colleague concludes, offers
    alternate hypotheses for the detail in her allegations, and injects doubt into
    its reliability.

[102]

I do not agree. These alternate hypotheses could certainly explain
    some of the detail in her allegations, like her description of the appellant
    masturbating or her unprompted use of the word cock. However, this evidence
    does not subsume all details. For example, the complainants approximation of
    the length of the appellants penis or that the ejaculate smelled gross are
    untouched by the pornographic video or schoolyard discussions with her friends.

[103]

In addition, the complainant said I cant say no, I have to say
    yes when asked what she responded to her uncle asking her if she liked the
    assault. Her answer to this question is hard to reconcile with her conversation
    with friends, and nearly impossible to relate to the pornographic videos.

[104]

Consequently, I do not believe the trial judge erred in finding that
    other evidence, particularly that of the complainants mother, did not cas[t]
    sufficient doubt on the statement so as to render it inadmissible. As the
    alternate hypotheses leave some details unexplained, the only likely
    explanation is that the statement is true.

(b)

Sincerity

[105]

My colleague finds that the statement and its context do not dispel
    the possibility that the complainant is being untruthful. Her conclusion here
    is two-fold: first, the complainant admitted to lying at the preliminary
    inquiry; second, the record evidenced a motive to lie. Therefore, [t]he trial
    judge could not have been satisfied on this record that the difficulty of
    assessing the complainants sincerity in her police statement could be
    overcome.

[106]

I do not agree with either finding. In my view, my colleague takes
    too narrow a view of the evidence going to sincerity. Viewed as a whole, the
    concerns relating to the complainants truthfulness are minor, and do not
    detract from the statements reliability.

[107]

My colleague finds that the complainant could have been insincere in
    her statement because she promised to tell the truth at the preliminary
    inquiry, but later admitted to Dr. Sas that she had lied.

[108]

With respect, this reasoning ignores what happened to the
    complainant immediately after her police interview. Basically, her life turned
    upside down. When the interview ended, the CAS immediately apprehended the
    complainant and placed her in a foster home. She stayed there for 17 months.
    Only then did she return to her mothers care.

[109]

In addition, by the time Dr. Sas became involved with the
    complainant, she was extremely guarded, disclosing only the information
    permitted by her mother. It is worth remembering that the complainants mother
    testified on her brothers behalf at his trial. Accordingly, while the complainant
    admitted to Dr. Sas that she had lied at the preliminary inquiry (by saying she
    could not remember the earlier events), I am not convinced that this has an
    impact on the sincerity of her police statement. During the police interview,
    there was no spectre of CAS detention, foster care, her mothers anger and
    support for the appellant, and long-term separation from her family.

(2)

The motive to lie issue

[110]

In his oral reasons on the threshold admissibility issue, the trial
    judge said, referring to the complainant: There is no apparent motive on her
    part to fabricate the allegations.

[111]

In his written judgment at the conclusion of the trial, the trial
    judge said: Of significance, I am satisfied that there was simply no motive or
    reason for a child to fabricate her allegations against her uncle.

[112]

My colleague disagrees:

The problem with this finding is that the
    trial judge either misapprehended or ignored evidence that belied the
    conclusion that [the complainant] had no motive to fabricate the allegation.
    For example, [the complainant] made numerous statements to different people to
    the effect that she did not want to live with her uncle and wanted to live only
    with her mother.  She also told [the CAS worker] that she didnt really like
    her uncle, that he had called her a little bitch, that she did not like the
    conflict he caused at home, and that her mother and uncle were always fighting.

All of this leads my colleague to
    conclude: The trial judge did not address this evidence, and gave no
    explanation for the finding, in the face of this evidence, that [the
    complainant] had no motive to fabricate.

[113]

With respect, I do not agree with this conclusion. In my view, the
    evidence is less categorical than that set out by my colleague. The complainant
    said that the sexual activity with her uncle made her feel nasty and
    repeatedly described her allegations using the word gross. Thus the evidence
    shows that the complainant could have disliked the appellant
because

of the sexual assaults. Accordingly,
    the trial judge was entitled to conclude that the complainants police
    statement was not a deliberate untruth  about a sexual act which in all
    probability is beyond their ken:
Khan
, at p. 542.

[114]

In any event, the complainants motive to lie is but one factor in
    the analysis:
R. v. Blackman
, 2008 SCC 37, at para. 42. Whatever
    acrimony exists between the complainant and the appellant does not undermine
    the reliability established by the procedural guarantees and the statements
    substance.

Disposition

[115]

I would dismiss the appeal.

Released: April 21, 2022 K.F.

J.C.
    MacPherson J.A.





[1]

By agreement, the
voir dire
evidence was admitted as the trial evidence.



[2]
Like
    all the evidence of what the complainant told anyone, Dr. Sass evidence that
    E.B. told her she had lied at the preliminary inquiry was hearsay and not
    available for the truth of its contents (i.e., that E.B. actually lied).
    However, the trial judge was obliged to consider it, as he was for example with
    what she told Ms. T.S., for the non-hearsay purpose that E.B. said this to Dr.
    Sas.



[3]

I
    note again that some of these statements were available only for a non-hearsay
    purpose, and not for the truth of their contents. Nevertheless, in order to conduct
    the threshold reliability analysis, the trial judge was obliged to consider this
    evidence for its non-
hearsay
purpose, that is, for the
    fact that E.B. told various people that she disliked her uncle or did not want
    to live with him.



[4]

Although it was not argued on the appeal, in my view, the
    trial judge erred in law by admitting the police statement without also
    admitting the preliminary inquiry evidence of the complainant. This procedure
    was contemplated by the Supreme Court in
Bradshaw
, at paras. 28, 109;

Khelawon
, at
    paras. 75-79;
R. v.
    Hawkins
, [1996] 3 S.C.R. 1043, at para. 84; and
B. (K.G.)
, at pp.
    786-87. In
B. (K.G.)
,
    Lamer C.J.C. observed that [t]he reliability concern is sharpened in the case
    of prior inconsistent statements because the trier of fact is asked to choose
    between two statements from the same witness: at pp. 786-87, quoted in
Khelawon
, at
    para. 78. In
Hawkins
,
    a witness testified twice at the preliminary inquiry, first implicating the
    accused and later recanting most of her initial testimony. On the appeal to
    this court, Arbour J.A. noted that [t]he Crown concedes that if [the
    witnesss] evidence is to be read in at trial, it will have to be put to the
    jury in its entirety:
R.
    v. Hawkins
(1995), 22 O.R. (3d) 193 (C.A.), at para. 23, affd
    [1996] 3 S.C.R. 1043. In the case at bar, by admitting only one statement, when
    the declarant made another recanting or repudiating statement under oath, the
    trial judge created an unbalanced and skewed record for the trier of fact (this
    case was tried by a judge alone, but in another case, the trier of fact could
    be a jury). See
R. v.
    Fisher
, 2003 SKCA 90, 238 Sask. R. 91, at paras. 70-77, leave to
    appeal refused, [2004] 3 S.C.R. viii (note); and
R. v. Ansary
,
    2004 BCCA 109, 184 C.C.C. (3d) 185, at paras. 5-19. In my view, had both
    statements been admitted at trial, with no further ability to cross-examine the
    child, it would have been clear that the trier of fact could not be satisfied
    of the appellants guilt beyond a reasonable doubt.


