



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25,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    shall not be published in any document or broadcast or transmitted in any way.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. J.L., 2021 ONCA 269

DATE: 20210429

DOCKET: C66425

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.L.

Appellant

Jeffery Couse, for the appellant

Caitlin Sharawy, for the respondent

Heard: March 24, 2021 by video conference

On appeal from the conviction entered on July 26, 2018 by
    Justice Joseph A. De Filippis of the Ontario Court of Justice, with reasons
    reported at 2018 ONCJ 513.

Hoy J.A.:

[1]

The appellant was convicted of sexual assault and sexual interference
    with respect to his daughter, C.L., and sentenced to 18 months imprisonment,
    followed by 3 years probation.

[2]

The abuse occurred while C.L. visited the appellant. C.L. was four years
    old when she first disclosed the abuse and six years old at the time of trial.
    The trial judge admitted three out-of-court statements made by C.L.: two under
    the principled exception to the hearsay rule, and one under s. 715.1 of the
Criminal
    Code
, R.S.C. 1985, c. C-46.

[3]

The appellant appeals his conviction, arguing that the trial judge erred
    in admitting the three statements.

[4]

For the following reasons, I would dismiss the appeal.

Background

[5]

Prior to trial, C.L. disclosed the abuse on three separate occasions.

[6]

First, on April 7, 2016, while at a neighbours house, she blurted out
    before her mother and the neighbour, unprompted: daddy ate my patoon (the
    first statement). The undisputed evidence was that in referring to patoon,
    C.L. meant vagina.

[7]

After this statement, C.L. was unwilling to participate in a police
    interview without her mother, and the police investigation was suspended. The
    police instructed C.L.s mother not to discuss the allegations with C.L.

[8]

Second, on November 23, 2016, at a play therapy session, in response to
    a short film entitled My Body Belongs to Me, in which a young boy describes
    being inappropriately touched by his uncle, C.L. covered her vaginal areas and
    stated: Yuk, my dad did that to me. She then described the abuse. Using a
    baby doll, she acted out three different sexual positions: (1) laying on top of
    the appellant, licking his penis; (2) laying on her side while the appellant
    licked her vagina; and (3) laying on her back, while the appellant opened her
    legs and licked her vagina. She made licking noises during this re-enactment.
    She said this occurred at dads house in dads bed. C.L.s words and gestures
    were recorded by the social worker, who testified at trial.

[9]

Following this second statement, the police re-opened their
    investigation.

[10]

On
    January 18, 2017, during a videotaped interview by a police officer, C.L. made
    the third statement: my daddy licked my private parts and ate it. She said
    it happened in his bed, he used his tongue, and it felt ticklish.

[11]

At
    trial, C.L. testified by video link, from a room adjacent to the courtroom.
    While she was made available for cross-examination  first by video link and
    then, at her request, in the courtroom  C.L. did not want to answer questions
    about the allegations.

The video-recorded statement

[12]

The statement
    to police that was recorded on video was admitted under s. 715.1 of the
Criminal
    Code
. Section 715.1 of the
Code
permits a video recording of a victim
    or other witness to be admitted if the Crown establishes on a balance of
    probabilities that: (1) the victim or witness was under the age of 18 at the
    time of the offence; (2) the statement was made within a reasonable time
    after the alleged offence; (3) the victim or witness describes the acts
    complained of in the statement; and (4) the victim  or witness, while
    testifying, adopts the contents of the statement:
R. v. P.S.
, 2019 ONCA
    637, at para. 12.

[13]

The
    appellant argues that the trial judge erred in finding that the video recording
    was made within a reasonable time after the alleged offence and that the
    complainant had adopted its contents while testifying.

[14]

In
    particular, the appellant argues that the nine-month delay between the first
    statement and the video recording was unreasonable because: (1) the police
    could have, but did not, make further efforts to obtain a statement from C.L.
    after their first attempt to interview her was unsuccessful; and (2) having
    regard to the evidence that C.L.s mother did not follow police instructions to
    refrain from speaking to C.L. about the allegations, C.L. may have been
    influenced by her mother prior to the video recording, tainting the accuracy of
    that statement.

[15]

The
    appellant also argues that C.L.s responses at trial about whether she recalled
    giving the video-recorded statement were equivocal.

[16]

I
    reject these arguments.

[17]

The
    trial judge noted that in considering the requirement that the video recording have
    been made within a reasonable time after the alleged offence, the court must
    balance a number of factors, the most important being the reasons for the delay
    and impact on the childs ability to accurately recall the events in issue:
R.
    v. P.S.
, (2000), 144 C.C.C. (3d) 120 (Ont. C.A.), at para. 71.

[18]

Having
    regard to the circumstances and C.L.s tender age, the trial judge was
    satisfied that the statement was made within a reasonable time.

[19]

His
    reasons describe a young child who was scared and uncomfortable talking about
    the abuse. It took time, and therapy, for her to be able to do so. It was not
    until the ninth therapy session, after watching a short movie where a young boy
    talked about good and bad touches and about how he felt on a bad touch by his
    uncle, that C.L. opened up and made her second statement to the social worker.
    The police decision to suspend the investigation at the time they did was not
    unreasonable.

[20]

In concluding
    that the video recording was made within a reasonable time, the trial judge
    also specifically considered, and addressed in his reasons, the appellants
    argument that C.L. may have been influenced by her mother. He noted that It is
    likely that [C.L.s] mother influenced her decision to speak to the police but
    the video record suggests most of the words spoken are her own and that she is
    able to recall events. He concluded that the concern about C.L.s mothers
    influence on C.L. could be addressed in determining ultimate reliability. There
    is no basis to interfere with that conclusion.

[21]

Further,
    the trial judge found that while C.L. was reluctant to watch the video record
    or talk about the allegations, with some prodding she eventually acknowledged
    making the movie and adopted it. It was not a case of C.L. not recalling the
    statement; rather, she did not wish to be exposed to it, or discuss it.

[22]

The
    trial judge also noted that certain statements made by C.L. in her trial
    testimony supported the inference that she had listened to the video and did recall
    her prior allegations. In particular, during the video-recorded interview, in
    recounting that the appellant had licked and eaten her patoon, she described
    the appellant as having made a circling motion with his body. At trial, when
    asked if she had told the officer the truth during the interview, she agreed
    and stated, I couldnt do the really lay down circle thing that the  I didnt
    really do the circle thing right and laid down on the floor.

[23]

There
    is no basis to interfere with the trial judges conclusion that C.L. adopted
    her video-recorded statement.

The first two statements

A framework

[24]

The
    first two statements were admitted under the principled exception to the
    hearsay rule. Under that exception, an out of court statement may be admitted
    for the truth of its contents if the party tendering it demonstrates, on a
    balance of probabilities, that the statement satisfies the criteria of
    necessity and threshold reliability:
R. v. Khelawon
, 2006 SCC 57,
    [2006] 2 S.C.R. 787, at para. 47;
R. v. Bradshaw
, 2017 SCC 35, [2017]
    1 S.C.R. 865, at para. 23. Even if the trial judge concludes that those
    criteria are satisfied, she has the discretion to exclude it if the prejudicial
    effect outweighs its probative value:
Khelawon
, at para. 49;
Bradshaw
,
    at para. 24.

[25]

As
    the trial judge noted, threshold reliability can be established either by
    showing that there are adequate substitutes for the traditional safeguards for
    testing the truth and accuracy of the hearsay evidence (procedural reliability)
    or that there are sufficient circumstantial or evidentiary guarantees that the
    statement is inherently trustworthy (substantive reliability):
Khelawon
,
    at paras. 61-63;
Bradshaw
, at paras. 27-28, 30-31.

[26]

The
    statement must be sufficiently reliable to overcome the dangers arising from
    the difficulty in testing it:
Khelawon
, at para. 49;
Bradshaw
,
    at paras. 26, 32. As
Bradshaw
explains, [s]ubstantive reliability is
    concerned with whether the circumstances and any corroborative evidence provide
    a rational basis to reject alternative explanations for the statement, other
    than the declarants truthfulness or accuracy: at para. 40. Thus, the trial
    judge must identify alternative, even speculative, explanations for the hearsay
    statement and, based on the circumstances and evidence led on
voir dire
,
    must be able to rule out any plausible explanation on a balance of
    probabilities:
Bradshaw
, at paras. 48, 49. The circumstances in which
    the statement was made and corroborative evidence, if any, must substantially
    negate the possibility that the declarant was untruthful:
Bradshaw
,
    at paras. 31, 90.

The trial judges reasons

[27]

Following
    the
voir dire
with respect to the admissibility of the three
    statements, the trial judge ruled that they were admissible, for reasons to
    follow. The trial judge provided those reasons at the beginning of his reasons
    for judgment.

[28]

Citing
R. v. F. (W.J.)
(1999), 138 C.C.C. (3d) 1 (S.C.C.), the trial judge
    noted that the requirement is that the evidence in question be reasonably
    necessary to prove a fact in issue and includes situations in which the
    witness is unable or unwilling to provide an accurate and frank recital of
    events. The trial judge concluded that the first two statements were reasonably
    necessary: This is a six year old child who does not want to discuss the
    things she previously said her daddy did to her.

[29]

The
    trial judge found that procedural substitutes were not present in this case.
    His finding that the first two statements satisfied the criteria of threshold
    reliability was grounded in his conclusion that they were substantively
    reliable.

[30]

The
    trial judge found that the first statement was short, simple, and spontaneous
    and was heard by a neighbour, in addition to the mother. The brevity of the
    statement alleviated concerns that it might have been improperly heard by the
    witnesses and conveyed to the court.

[31]

In
    the case of the second statement, the trial judge was satisfied as to the
    truthfulness and accuracy of the social workers testimony. Considering the
    direction in
Bradshaw
that, in assessing substantive reliability,
    trial judges consider alternative, even speculative explanations for the
    hearsay statements, the trial judge addressed the appellants suggestion that
    others were to blame for exposing the complainant to pornography or abusing
    her: This speculation does not trouble me given the level of sexually explicit
    details given by such a young girl in the strikingly similar play therapy
    hearsay and video statement.

The appellants submissions

[32]

The
    appellant argues that neither of the first two statements satisfied the
    criteria of necessity and threshold reliability.

[33]

Citing
R. v. Rhayel
, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 73, he
    argues that neither of the first two statements satisfied the necessity
    criterion because they were repetitious of the video recording admitted under
    s. 715.1 of the
Code
.

[34]

As
    to substantive reliability, the appellant argues that in assessing the first
    statement, the trial judge did not address C.L.s statement, made at the same
    time as her first statement, that the appellant had punched me in the face.
    C.L.s mother had never noticed signs of C.L. having been punched in the face.
    This, the appellant argues, undermined the credibility and reliability of
    C.L.s first statement.

[35]

Nor,
    he argues, did the trial judge address the alternative explanation the
    appellant offered for both the first and second statements in assessing the
    substantive reliability of the first statement, namely that C.L. might have
    been abused or exposed to pornography by others.

[36]

Further,
    as to the threshold reliability of the second statement, the appellant argues
    that the trial judge failed to consider that, between the first statement and
    the second statement, C.L.s mother had disregarded police instructions to
    refrain from discussing the allegations with C.L. Citing
R. v. D.R.
,
    [1996] 2 S.C.R. 291, the appellant argues that C.L.s statement did not satisfy
    the requirement of threshold reliability because it was equally consistent with
    the hypothesis that her mother had influenced her to make the allegations.

[37]

Finally,
    the appellant argues that the trial judge improperly relied on the video recording
    to reject an alternative explanation for, and to corroborate, the second
    statement, offending the rationale of the rule that prior consistent statements
    are presumptively inadmissible.

Analysis

[38]

I
    reject these arguments.

(1)

The necessity"
    requirement

[39]

Turning
    first to the appellants argument that neither the first nor the second
    statement satisfied the necessity requirement, there is no bright line rule
    that enjoins all cumulative hearsay:
R. v. Mohamad
, 2018 ONCA 966,
    369 C.C.C. (3d) 211, at para. 123. Defence counsel at trial did not challenge
    necessity on the basis of cumulative hearsay, but, in any event, this case is
    different from
Rhayel
.

[40]

In
Rhayel
,
    the court held that the complainants video-recorded statement was not admissible
    under the principled exception to the hearsay rule because it was not
    necessary: the evidence was already before the court through the complainants
    testimony at the preliminary inquiry. Epstein J.A., writing for the court,
    explained that evidence which is merely repetitious of statements already
    admitted may have little or no probative value, and the prejudice to the
    accused resulting from its admission may be great:
Rhayel
, at para. 73.
    The risk of prejudice is recognized in the rule that renders prior consistent
    statements generally inadmissible. Epstein J.A. noted that, on a number of
    occasions, the trial judge had commented on how very similar the accounts of
    the complainant were.

[41]

In
    this case, the first and second statements had probative value in and of
    themselves because of the circumstances in which they were made. The
    complainants statements that daddy ate my patoon and yuk, my dad did that
    to me and her gestures during play therapy describing the sexual acts were
    spontaneous and unprompted. It is their spontaneity that gives them their
    probative value. The complainants testimony at the preliminary inquiry in
Rhayel
was not spontaneous.

[42]

Moreover,
    there was more detail given in the statements made and gestures shown to and
    recounted by the social worker than in the video recording. They were not
    merely repetitious of the video recording.

(2)

Substantive
    reliability

[43]

I turn next to the issues that the appellant raises with respect to the
    substantive reliability of the first statement
. The appellant correctly
    notes that the trial judge did not address C.L.s statement, made at the same
    time as her first statement, that the appellant had punched me in the face.
    This is not surprising: the appellant does not dispute that defence counsel at
    trial did not refer to the punched me in the face statement in his oral or
    written submissions. Moreover, the statement of a four-year old, in the context
    of a sexual encounter, that she had been punched in the face does not
    necessarily mean she was hit with such force as to leave a visible mark.

[44]

As
    to the appellants alternative explanation for the first statement, in a phone
    call with the complainants mother (which the mothers friend listened to), the
    appellant pointed the finger at the mothers father and brothers and the
    babysitter. But the mother testified that: neither of her brothers had access
    to C.L. outside of the mothers supervision; she does not have a babysitter;
    and she has not seen her father in years. And C.L. never wavered on the fact
    that it was daddy who ate her patoon.

[45]

In assessing the threshold reliability of the second statement, the
    trial judge specifically considered and ruled out the appellants speculative
    explanation for the statement. The appellant does not challenge the Crowns
    explanation that the appellants trial counsel did not advance a similar
    argument with respect to the first statement and it is therefore not surprising
    that the trial judges analysis focuses only on the second statement. As noted
    above, the trial judges reasons for admitting the three statements at issue
    formed part of his judgment finding the appellant guilty of sexual assault and
    sexual interference. In rejecting the appellants testimony and finding that it
    did not leave him with a reasonable doubt, the trial judge again addressed the
    appellants alternative explanation, and concluded that it was nothing more
    than an attempt to deflect attention from himself.

[46]

Reading the trial judges reasons as a whole, it is clear he concluded
    that the appellants speculative explanation was not plausible and ruled it
    out. The fact that the trial judge did not specifically address the appellants
    speculative explanation in the portion of his reasons addressing why the first
    statement satisfied the requirement of threshold reliability is not a basis for
    this court to interfere.

[47]

Turning to the second statement, the trial judge specifically considered
    the risk that the mother had influenced C.L. in assessing whether the delay
    before the making of the video recording was reasonable. This, the Crown
    advises, is the primary context in which the appellants trial counsel made
    this argument and it is therefore not surprising that this is where the trial
    judge addressed it. As noted above, the trial judge found that the video record
    suggests most of the words spoken were C.L.s own and concluded that the
    concern about the mothers influence on C.L. could be addressed in determining
    ultimate reliability. It cannot be said that the trial judge failed to
    consider the risk that the mother influenced C.L. in assessing threshold
    reliability.

[48]

Moreover,
    in his reasons for judgment, the trial judge again specifically addressed the
    possibility that the mother had influenced C.L. by questioning her about the
    allegations. In his view, the circumstances in which the first two statements
    were made undermine[d] the assertion the complainants trial testimony was
    tainted by external influences.

[49]

Finally,
    the appellants argument that the trial judge improperly relied on the video recording
    to reject an alternative explanation for, and to corroborate, the second
    statement arises out of the passage in the trial judges reasons explaining why
    he rejected the appellants speculative explanation for C.L.s second hearsay
    statement: This speculation does not trouble me
given
    the level of sexually explicit details given by such a young girl
in the
    strikingly similar play therapy hearsay and video statement (emphasis added).

[50]

Contrary
    to the appellants argument, the trial judge did not use the fact that there
    were similarities between the video recording and the second statement to
    conclude that the second statement was more likely to be true. Rather, it was
    the graphic detail in her accounts  the level of sexually explicit details 
    that caused him to reject the appellants speculative explanation for C.L.s
    second statement. The trial judges careful analysis of why, in the
    circumstances, both the first and the second statements were admissible
    demonstrates that he was aware that prior consistent statements are generally
    inadmissible.

Disposition

[51]

For
    these reasons, I would dismiss the appeal.

Released: April 29, 2021 D.W.

Alexandra Hoy J.A.

I agree. David Watt J.A.

I agree. I.V.B.
    Nordheimer J.A.


