



COURT OF APPEAL FOR ONTARIO

CITATION: Paddy-Cannon v. Canada (Attorney General), 2022
    ONCA 110

DATE: 20220207

DOCKET: C67642

Lauwers, Coroza and Sossin JJ.A.

BETWEEN

Darlene Marie
    Paddy-Cannon, Rosemarie Ethel Christie

and Sharon Geraldine
    Cannon

Plaintiffs (Appellants)

and

The Attorney General of Canada and Katherine
    Cannon

Defendants (Respondents)

Rosemarie
    Ethel Christie, acting in person

Michael J. Prestell and Connor Barbeau, for the
    respondent Katherine Cannon

Daniel
    Luxat, for the respondent the Attorney General of Canada

Heard: September 2, 2021 by video conference

On appeal
    from the judgment of Justice J. Christopher Corkery, dated September 30,
    2019, with reasons reported at 2019 ONSC 5665.

Coroza J.A.:

A.

OVERVIEW

[1]

Darlene Marie Paddy-Cannon, Rosemarie Ethel Christie, and Sharon
    Geraldine Cannon, the appellants, are sisters. The respondent Katherine Cannon
    is their aunt. The appellants lived with Katherine and her family when they
    were children, during which time they allege that Katherine physically abused
    them. The allegations relate to events that began over fifty years ago, when
    the appellants were very young.

[2]

The appellants sued Katherine for damages, alleging assault and battery.
    They also claimed damages against the Attorney General of Canada (Canada) for
    breaching its fiduciary duty to protect them from physical abuse by Katherine.

[3]

In his reasons for judgment, the trial judge framed the issues raised by
    the appellants claim in the following way:

1.

Did Katherine Cannon physically abuse the appellants as they allege?

2.

If the answer to question one is yes, what damages are the appellants entitled
    to?

3.

If the answer to question one is yes, did Canada owe the appellants a
    fiduciary duty or a duty of care at common law and, if so, did they breach that
    duty?

[4]

The trial judge found that the appellants were credible witnesses. However,
    he was not persuaded that the appellants were physically abused by Katherine. He
    concluded that the passage of several decades made it impossible for him to
    determine that the appellants evidence was reliable. He dismissed the claim. Since
    the claim against Canada was predicated on the allegation of physical abuse by Katherine,
    that claim was also dismissed.

[5]

The appellants appeal, alleging several errors in the trial judges
    analysis.

[6]

As I will explain below, I have concluded that the trial judges decision
    must be set aside. In my respectful view, the trial judges assessment of the
    appellants reliability reveals an error in principle. While I agree with the
    trial judge that the passage of time was a factor to be taken into account, in
    my view, he considered this factor as nearly determinative and without
    following the guidance set out by the Supreme Court of Canada in
R. v. W. (R.)
,
    [1992] 2 S.C.R. 122, on how to assess the evidence of adults testifying to
    events of abuse that occurred when they were children.

B.

BACKGROUND FACTS

(1)

The Family Arrangement

[7]

Sharon, Darlene, and Rosemarie were born in 1959, 1960, and 1963
    respectively. The appellants are all members of the Thunderchild First Nation,
    an independent Cree First Nations band in Turtleford, Saskatchewan.

[8]

The appellants parents separated in the early 1960s and their father brought
    them to Ontario, to his mothers home, planning to have his mother raise the
    children. However, on or about May 1, 1965, she died.

[9]

After their grandmothers death, the appellants went to live with the respondent
    Katherine and her family. Katherine lived with her husband and their three
    children. Darlene arrived first, aged four and a half; a few months later,
    Rosemarie came, aged eighteen months old; and roughly three years later, Sharon
    joined, aged between eight and ten.

[10]

Katherine
    was 81 years old at the time of trial. While raising her children, she worked
    as a custodian at the school her children attended. Katherine states that she
    is Algonquin and a Chief, but the appellants contest this and have asked this
    court to consider fresh evidence in the form of documents that they claim
    demonstrates that this assertion is false.

(2)

The Assaults

[11]

The
    appellants alleged that Katherine physically abused them while in her care and
    that this abuse was known to other members of the household. Katherine, her
    husband, and her children deny the allegations.

[12]

To
    support their case, the three appellants testified as well as Sharons
    psychologist. The appellants testified to various forms of abuse.

(a)

Darlenes Allegations

[13]

Darlene
    remembers Katherine beating her with her hands, a leather belt, and a teachers
    razor strap, specifically on her lower back, buttocks, and upper legs. According
    to Darlene, these beatings were a regular occurrence and in response to Katherines
    mood when Darlene, for example, spilled milk, did not come when called, or wore
    a boys army jacket at school once. Darlene witnessed her sister, Rosemarie,
    being beaten until she stopped breathing and her face turned blue. Darlene testified
    that Katherines daughters saw the beatings but never received the belt
    themselves. Darlene said that Katherine told her that if she reached out to anyone
    for help, she would kill them.

(b)

Rosemaries Allegations

[14]

Rosemarie
    remembers being hit frequently, also on the buttocks, and often with the belt. She
    testified that the three sisters were mostly beaten together and that the only
    people who saw it, other than the appellants, were Katherines daughters. Rosemarie
    does not remember every incident.

(c)

Sharons Allegations

[15]

Sharon
    remembers Katherine beating her sister Rosemarie with a razor strap. At trial, when
    asked to describe the beatings, Sharon could only recall a couple of incidents.
    She testified to having issues with her memories. Sharon recalled more of a
    feeling of constant fear of Katherine and general feelings of what she believes
    was PTSD living in that home. Sharon did recall being beaten in the kitchen,
    around the head and face, until blood was drawn. Sharon contacted the
    Childrens Aid Society (CAS), requesting to meet with someone while Katherine
    was not home, but did not get a chance to speak to the CAS worker without
    Katherine being present.

[16]

The
    appellants testified to recollections of verbal abuse in addition to the
    physical abuse. The appellants eventually left Katherines home and, at some
    point after that, lived with their father in Peterborough for a period of time.
The exact circumstances of their departure are
    contested, but at the time of leaving Katherines home, the appellants were
    teenagers.

(d)

Katherines Evidence

[17]

Six
    witnesses testified at trial on behalf of the respondent Katherine: herself, her
    husband, two of her daughters, her son-in-law, and her niece.

[18]

Katherine
    denied the appellants allegations. The only physical discipline she used on
    the appellants and her own children was slapping their hands if they did
    something dangerous. She testified that Rosemarie used to have seizures,
    prompting Katherine, based on instructions she had received from medical
    professionals, to slap Rosemarie on the diaper and shake her. Katherine denied calling
    the appellants parents rude names and testified that, to her and her husband, it
    felt like the appellants were their daughters.

[19]

Katherines
    daughters testified that the appellants were an integrated part of the family.
    They received the same treatment, the same gifts on birthdays and Christmas,
    travelled together for camping vacations, and suffered the same discipline, in
    particular, being spanked on the hands or being put in a time out. Both
    daughters testified that a belt or strap was never used.

[20]

Katherines
    niece was close with the family, especially Rosemarie. She testified that she
    never saw any physical punishment by Katherine, though may have heard threats
    of physical punishment. Katherines brother-in-law testified to the same, that he
    could not recall Katherine physically hitting any of the children and never saw
    a belt or razor strap being used.

[21]

Katherines
    two daughters recalled Rosemaries seizures, while Katherines husband and
    brother-in-law did not.

[22]

The
    testimonies overall reveal very different factual accounts, and as the trial
    judge noted, both versions cannot be true.

(e)

Canada

[23]

Canada
    called no evidence at trial. The claim against Canada was predicated on the appellants
    allegation of physical abuse by their aunt, and Canada took no position on the
    appellants claim against Katherine.

[24]

According
    to the appellants, Canada, through the federal department of Indian Affairs as
    it existed then, advised the CAS in Belleville in 1966 that it believed it
    would be in the best interests of the children to return them to their home
    reserve, but then Canada failed to manage this return or monitor their
    placement, breaching its fiduciary duty to protect the appellants by leaving
    them in the respondent Katherines care.

[25]

Canada
    takes the position that it inquired with the appellants maternal relatives and
    advised the CAS that maternal relatives were indeed willing to care for them.
    Canada offered to arrange their travel to Saskatchewan. However, the CAS rejected
    this idea. According to the CAS, the appellants were not in need of protection
    and would not be apprehended and relocated to Saskatchewan. Canada argued that
    it did not have the legal authority to decide what was in the best interests of
    the appellants. That authority belonged to the provincial CAS in Belleville.

C.

DECISION BELOW

[26]

The
    trial judges reasons contain a lengthy summary of the evidence, a discussion
    of some of the relevant legal principles, and then a very brief conclusory assessment
    of the appellants evidence, comprised of no more than six paragraphs. The
    trial judges reasons include no analysis of the evidence of the respondent Katherine,
    except for a brief, conclusory mention that all the witnesses presented as
    credible.
[1]

[27]

In
    his assessment of the evidence, the trial judge found that the appellants presented
    as credible and appeared to be sincere, truthful, and honest. He recognized
    that each experienced a traumatic and tragic childhood. However, he concluded
    that [i]n this case, the passage of several decades make it impossible for me
    to determine that the [appellants] evidence is reliable. As I read his
    reasons, he found the appellants evidence unreliable for two primary reasons. First,
    their testimony often lacked specifics because all three appellants relied on
    generalizations, introducing their testimony with phrases such as Sometimes,
    I believe, and As I recall. Second, their testimony was inconsistent with
    each others as to details of the assaults, for example, whether they were
    primarily beaten individually or collectively.

D.

POSITIONS OF THE PARTIES

(1)

Appellants Position

[28]

At the hearing, the panel was advised that
    Rosemarie planned to argue the appeal on behalf of all three appellants (and
    that neither Sharon nor Darlene would be appearing on video). We allowed Rosemarie
    to argue on behalf of all the appellants because we were satisfied that they
    shared common ground and were raising the same grounds of appeal. Collectively,
    these grounds of appeal amount to an overarching complaint about how the trial
    judge assessed their evidence.

(2)

Katherines Position

[29]

For her part, the respondent Katherine argues that
    the trial judge carefully considered all of the trial evidence and in finding
    that the appellants were not reliable, the trial judge relied on significant
    and material inconsistencies in the testimonies of the three appellants regarding
    how the beatings occurred, the number of them, whether the appellants were
    together or apart, and even whether certain beatings actually did occur. The
    respondent Katherine argues that in the absence of palpable and overriding
    error, the trial judge is owed deference.

(3)

Canadas Position

[30]

The respondent Canada repeats the arguments made
    at trial. It submits that while there may have been an agreement in 1965
    between Canada and Ontario regarding the provision of welfare services, that
    specific agreement concerned welfare services on a reserve. That is not the
    situation here  the Cannon home was not on reserve, just provincial land. Therefore,
    the provincial CAS had legal authority and Canada was not liable for the
    alleged assaults, if they, in fact, had occurred.

E.

DISCUSSION

(1)

Overview

[31]

For the purposes of this appeal, I need only
    address the appellants submission that the trial judge improperly determined
    they were not reliable witnesses because of the passage of time. The appellants
    contend that the passage of time did not relieve the trial judge of his duty to
    assess the evidence especially in the context of beatings of the appellants as young
    children. In my view, this submission has substantial merit.

[32]

I
    start with the observation that on appeal, I must keep in mind that there is a
    presumption that the trial judge correctly applied the law, particularly
    regarding the relationship between reliability and credibility, and that on a
    functional and contextual reading of trial reasons, the focus is whether the
    trial judge turned his mind to the relevant factors that go to the
    believability of the evidence in the factual context of the case, including
    truthfulness and accuracy concerns:
R. v. G.F.
, 2021 SCC 20, 71
    C.R. (7th) 1, at para. 82.

[33]

It
    is undisputed that when adult witnesses testify about events that occurred when
    they were children, in general their evidence should be assessed by the
    criteria applicable to adult witnesses:
W. (R.)
, at p. 134. However
,
inconsistencies and lack of memory in that
    testimony must be considered in the context of the age of the witness at the
    time of the events:
W. (R.)
, at p. 134; see also
R. v. Pindus
,
    2018 ONCA 55, at para. 37;
R. v. Radcliffe
, 2017 ONCA 176, 347 C.C.C.
    (3d) 3, at para. 34, leave to appeal refused, [2017] S.C.C.A. No. 274. I do not
    suggest that a trial judge is required to make explicit reference to these
    principles in reasons for judgment. However, I must be satisfied that the trial
    judge applied the appropriate principles.

[34]

The
    trial judges very brief analysis in this case reveals that he was mindful that
    the events had occurred some time ago. Before turning to the appellants
    evidence, the trial judge mentioned that the allegations related to events that
    began over fifty years ago, when the appellants were very young.

[35]

Respectfully,
    however, the trial judges approach to the appellants testimony reveals that
    he allowed the passage of time to overwhelm his analysis, and his criticisms of
    the appellants testimony indicate that he was not alive to the principles for
    assessing adult testimony of childhood abuse.

(2)

The trial judge erred
    in his approach to the appellants testimony

[36]

For
    ease of reference, I set out the trial judges analysis on the witnesses
    evidence in its entirety:

[219] All of the witnesses in this case presented as credible. The
    [appellants] in particular, like the complainant in
R. v. Sanichar
,
    appeared to be sincere, truthful, and honest. I have no difficulty in
    recognizing that they experienced traumatic and tragic childhoods. It may well
    be that much of the trauma is attributable to their experiences in the Cannon
    home. However, the trial was not an inquiry. The Courts task is not to
    determine what happened in the Cannon home. The issue I must determine is
    whether the [appellants] have proven on a balance of probabilities the physical
    abuse that they allege occurred.

[220]
In this
    case, the passage of several decades make it impossible for me to determine
    that the [appellants] evidence is reliable
. Considering all of the
    evidence, I am not persuaded that the physical abuse that they described
    actually occurred
.

[221] Much of the evidence provided by the [appellants] was
    framed in generalizations and lacking in detail and specifics. Testimony often
    included sentences that were introduced with the words, I believe, As I
    recall, Sometimes. It is understandable that there would be some
    uncertainty given the passage of so much time. It was difficult, however, to
    understand what parts of their evidence the [appellants] were actually certain
    of, if any.

[222] There were inconsistencies in the evidence of one [appellant]
    compared to another. For example, Rosemarie testified that the majority of time
    the [appellants] were beaten together. She had to go upstairs and get her
    sisters to come down to the kitchen, where they would line up and get the belt
    because of her. Darlene testified about several incidents she remembered when
    she was beaten alone. She said she would be beaten if she cried when Rosemarie
    was beaten. They were not collectively whipped every time, it depended on Katherines
    decision. Sharon described the two incidents she recalled of being beaten
    herself and one incident she saw four-year-old Rosie being beaten with a strap,
    but no incidents of being lined up for a collective beating.

[223] Rosemarie acknowledged that she does not remember all of
    the incidents she believed occurred. They come back in pieces. Sharon testified
    that she could swear that she didnt get hit, but she has been told thats
    inaccurate.

[224]
There are too many uncertainties
    and too many inconsistencies
in the evidence of the [appellants] for me
    to determine that it is reliable. [Emphasis added.]

[37]

In
    his reasons, the trial judge referenced this courts decision in

R. v. Sanichar
, 2012 ONCA
    117, 280 C.C.C. (3d) 500, revd, 2013 SCC 4, [2013] 1 S.C.R. 54. In that case,
    Blair J.A. for the majority stated that in cases involving historic acts of
    sexual and physical abuse, particular scrutiny is called for in approaching the
    reliability of the evidence. The trier of fact must be mindful of serious
    inconsistencies in a witnesss account as well as the subtle influences that
    may have distorted memory over time:
Sanichar
, at paras. 38-39. The
    passage of time may influence the witnesss ability to observe, recall and
    recount the events at issue accurately:
Sanichar
, at para. 70,
per
Laskin J.A. (dissenting, but not on this point). The trial judge was clearly
    alive to this caution in
Sanichar.
[2]

[38]

Sanichar
does not, however, instruct a trial judge to reject witness testimony as
    unreliable because time has passed. The trial judge concluded that [i]n this
    case, the passage of several decades make it impossible for me to determine
    that the [appellants] evidence is reliable. His reasons reveal that he
    treated the passage of time as nearly determinative of the appellants unreliability.
    Respectfully, the passage of time cannot overwhelm a trier of facts assessment
    of the evidence, and I agree with the appellants submission that treating the
    passage of time as determinative in this case is akin to imposing a limitation
    period on the appellants claim. This is the wrong approach.

[39]

I
    accept that
Sanichar
advises triers of fact to be mindful of time, and
    appropriately cautious, when assessing testimony of events from a distant past.
    However, as noted above,
W. (R.)
and other cases require
that when assessing the testimony of adults trying to
    recount childhood memories, triers of fact must also be mindful of the context when
    addressing inconsistencies and a lack of memory.

[40]

In
W. (R.)
, McLachlin J. (as she then was) stated, at p. 134:

It is neither desirable nor possible to state hard and fast
    rules as to when a witness's evidence should be assessed by reference to adult
    or child standards  to do so would be to create anew stereotypes potentially
    as rigid and unjust as those which the recent developments in the law's
    approach to children's evidence have been designed to dispel. Every person
    giving testimony in court, of whatever age, is an individual, whose credibility
    and evidence must be assessed by reference to criteria appropriate to her
    mental development, understanding and ability to communicate. But I would add
    this.
In general, where an adult is testifying as to
    events which occurred when she was a child, her credibility should be assessed
    according to criteria applicable to her as an adult witness. Yet with regard to
    her evidence pertaining to events which occurred in childhood, the presence of
    inconsistencies, particularly as to peripheral matters such as time and
    location, should be considered in the context of the age of the witness at the
    time of the events to which she is testifying
. [Emphasis added.]

[41]

In
Pindus
, Laskin J.A. stated, at para. 37,
    that when an adult witness gives evidence about events that took place in
    childhood, inconsistencies and lack of memory have to be considered in the
    context of the age of the witness at the time of the events.

[42]

In
    my view, the emphasis the trial judge placed on two aspects of the appellants
    testimony demonstrates that he was not alive to the context of the age of the
    appellants at the time of the events to which they were testifying.

[43]

First,
    the trial judge criticized the appellants evidence as framed in
    generalizations and lacking in detail because they used the phrases Sometimes,
    I believe, and As I recall. However, the appellants were children when the
    assaults allegedly occurred. The mere fact that they prefaced many of their
    answers with these qualifications did not, by itself, mean that their evidence
    was unreliable. Indeed, it is hardly surprising that a witness who is
    testifying to things that occurred decades ago would use these words.

[44]

Furthermore,
    it seems to me that the record does not support the trial judges finding that
    their evidence lacked detail. Without opining on the appellants reliability, several
    examples in their accounts reveal a high level of detail, suggesting the trial
    judge was overly critical of this evidence and overemphasized the passage of
    time.

[45]

For
    example, Rosemarie was able to recall that she was first hit when she was about
    four or five and playing with a bottle of aspirin by filling it up with water.
    She recounted that she was grabbed by the shoulder, dragged by Katherine to the
    kitchen who started to hit her, and then taken to the living room where she was
    thrown on the couch. She also recounted other incidents where she was hit by a
    belt.

[46]

Darlene,
    for example, was able to recall specific incidents that provoked Katherine to
    physical abuse, such as spilling milk or wearing a boys army jacket at school,
    and she testified that the first belt Katherine used was thirty-six inches long
    and about two and a half inches wide before she switched to using a razor
    strap. According to Darlene, this razor strap had been given to Katherine by Mrs. Quay,
    a schoolteacher.

[47]

Sharon
    testified that while she had difficulty recalling events and had blocked out
    several memories in her mind, she did recall some very vivid acts of being
    beaten with a leather belt, razor strap, or by hand. Sharon also described one
    specific incident when she was struck in the head, the face, and the nose in
    the kitchen area by Katherine and one of Katherines daughters, Karen, and that
    she was positive that blood was running after the beating.

[48]

Second,
    the trial judge did not point to any internal inconsistencies in the appellants
    individual accounts but noted that they were not consistent with each others
    descriptions of the mechanics of the beatings. He listed three inconsistencies
    that undermined their reliability: Rosemarie said they were beaten together;
    Darlene said she was beaten alone but would be beaten if she cried when
    Rosemarie was beaten; and Sharon recalled two incidents of being beaten herself
    and one incident when she saw Rosemarie being beaten with a strap.

[49]

It is unclear why this inconsistency about being beaten collectively or
    individually disqualified the appellants testimony about events which occurred
    when they were all children.
The trial judge did not explain how these
    contradictions detracted from the core of their story, and reviewing his
    reasons in light of the record, it remains unclear as to why he did not
    consider these inconsistencies as peripheral: see
W. (R.)
, at p. 134.

[50]

To
    be clear, it is not an error for a trial judge to take notice of specific
    phrases used by a witness and inconsistencies between accounts as part of their
    overall assessment of the testimony of a witness. It goes without saying that
    inconsistencies can be a significant factor in determining the credibility and
    reliability of that evidence. However, the analysis here is too sparse. These
    two examples clearly played a major role in the assessment of the evidence. The
    trial judges focus on these two examples appears out of line with how a trier
    of fact must approach adult testimony as to events from childhood.

[51]

Respectfully,
    because the analysis is so brief, the passage of time treated as nearly
    determinative, and the appellants testimony criticized without sufficient
    explanation or acknowledgement of context, I conclude that the trial judges
    finding that the appellants were unreliable was arrived at by an error in
    principle. A new trial is warranted.

[52]

There
    are several reasons why a new trial is the appropriate remedy. First, we do not
    have the advantage that the trial judge had of hearing these witnesses firsthand.
    Second, there are no specific findings as to the respondent Katherines witnesses,
    other than they were credible. Third, the trial judges reasons are practically
    silent as to the claim against Canada. Therefore, it is not in the interests of
    justice or feasible on a practical level to simply decide this case on the
    record filed.

[53]

As
    set out above, Canadas involvement in the appeal is intertwined with the
    specific finding that the appellants complaints had not been proven. During
    the oral hearing of this appeal, counsel for Canada agreed that it would have
    been preferable for the trial judge to have made findings on the viability of
    the claim against it, but since the parties in the court below asserted that
    the claim against Canada was entirely predicated on the finding that there was
    a tort, the trial judge did not address the issue of Canadas liability.

[54]

Since
    the trial judge did not make any findings on the issue of Canadas liability,
    and the parties may end up taking the same approach in addressing the claim
    against Canada, in my view, the forum to litigate the claim against Canada is
    at a new trial.

F.

DISPOSITION

[55]

For
    these reasons, I would allow the appeal and order a new trial. In light of this
    conclusion, it is not necessary to address the appellants application for fresh
    evidence and the other grounds of appeal. However, I note that the respondent
    Katherine agrees that the trial judge in his reasons did misstate the evidence
    of Darlene concerning Rosemaries seizures and that he misidentified the perpetrator
    who allegedly molested Darlene as the brother of Darlenes mother when it was
    actually alleged to be Katherines brother. There is no need to comment further
    on these errors because they are not germane to my decision to allow the appeal.

[56]

The
    court will accept written costs submission of no more than five pages in length
    relating to the appeal costs and the trial costs beginning with the appellants.
    They should file their submissions within 15 days after the release of these
    reasons. The respondents Katherine and Canada shall have 15 days to respond.
[3]

Released: February 7, 2022 P.L.

S Coroza J.A.

I agree. P. Lauwers J.A.

I agree. Sossin J.A.





[1]
In
Champoux v. Jefremova
, 2021 ONCA
    92, Hourigan J.A. noted, at para. 21, that there is nothing impermissible in
    providing a detailed factual recitation in reasons for judgment but that it is
    not a substitute for a considered analysis of the issues. I agree with his
    observation that [w]hat frequently happens when reasons begin with a very
    detailed recitation of the evidence is that when it comes time to grapple with
    the issues in the case, the analysis is largely conclusory: at para. 21; see also
Welton v. United Lands Corporation Ltd.
,
    2020 ONCA 322, 64 C.C.E.L. (4th) 265, at para. 61. This description applies to
    the reasons in this case.



[2]

Sanichar

was overturned on
    appeal because the Supreme Court of Canada, agreeing with Laskin J.A.s
    dissent, held that there was no requirement in law for a trial judge to
    self-instruct on the dangers of convicting because the complainants evidence related
    to historic events and suffered from various frailties. However, the majoritys
    comments as to reliability were not directly overturned and remain instructive.



[3]

Canada advised the panel during oral submissions that it was
    not seeking costs of the appeal.


