Reasoning shuns the complainant's experience instantly after her police evaluation: Dissenting Judge
The Court of Appeal of Ontario has overturned a child sexual assault and interference conviction after the trial judge failed to meet the high standard for threshold reliability. The trial judge concluded that the complainant had no motive to fabricate and admitted her unsworn, videotaped police statement into evidence.
“There was evidence that the complainant’s perception could have been influenced by what she heard from other children and from watching a pornographic movie,” the court wrote.
The court wrote that evidence could support a motive to lie because the complainant made inconsistent statements about remembering what happened to her.
In R. v. S.S, the appellant was convicted of sexual assault and sexual interference perpetrated on his niece when she was between six and eight years old. The complainant was also apprehended by the Children’s Aid Society and placed in foster care following the police statement.
The trial judge exempted the hearsay rule based on necessity and threshold reliability and convicted the appellant without the complainant testifying and undergoing cross-examination at the trial.
By discounting cross-examination that could challenge the accuracy or veracity of the complainant’s statement, the appeal court wrote that the trial judge lowered the high bar for threshold reliability the law requires before admitting hearsay statements.
The court wrote that the trial judge improperly downplayed the importance of cross-examination by failing to consider “several case-specific hearsay dangers” that would arise from admitting the statement without any opportunity for cross-examination.
Ontario Court of Appeal Justices Kathryn Feldman and Julie Thorburn held that none of the reliability concerns could be addressed and potentially overcome without an adequate substitute for cross-examination at the trial. Accordingly, they allowed the appeal, set aside the conviction, and acquitted the appellant.
Justice James MacPherson disagreed with his colleagues’ analysis and conclusion.
In his dissent, he wrote, “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 mother’s care.”
The complainant admitted that she had lied at the preliminary inquiry by saying she could not remember the earlier events. However, justice MacPherson was not convinced that it impacted the sincerity of her police statement. “During the police interview, there was no spectre of CAS detention, foster care, her mother’s anger and support for the appellant, and long-term separation from her family.”
The dispute began when the complainant’s (E.B) mother and sister to the appellant (L.S) contacted the appellant’s probation officer in March 2015 concerning his state of mind, demeaning conduct toward E.B, anger, hoarding, and adult conflict in the house. As a result, the probation officer called the Children’s Aid Society (CAS), which was already involved with the family, and reported these concerns.
A CAS worker met with E.B, who said that the appellant had pulled down his zipper and masturbated. In addition, she said that she had touched his penis and seen “white stuff.” The child told the worker that she no longer wanted to live with the appellant and had seen a pornographic movie with him.
The CAS worker took E.B. to a station where she made a videotaped statement. During the interview, E.B. told the officer that the appellant told her to remove her clothes, stood in front of her and touched her private parts, and it felt “just nasty.” She demonstrated with hand motions how he masturbated and used the words “penis,” and her “private stuff” without suggestion.
Following the police interview with E.B and her mother, L.S, the CAS worker apprehended E.B. and placed her in foster care. She told E.B. that her mother failed to protect her from her uncle. E.B. remained in foster care for over a year before returning to her mother. However, CAS remained involved, and the worker checked on E.B. at school monthly.
As part of the child protection proceeding that allowed E.B to reunite with her mother, L.S. signed an Agreed Statement of Facts acknowledging that the appellant sexually abused her daughter and that she made a mistake by leaving E.B. in the appellant’s care, contrary to the CAS’s direction.
During the appellant’s preliminary inquiry and when E.B. was nine years old, the interrogating officer testified that he saw her in the Crown’s office before the inquiry, but she did not recognize him. “She viewed her entire video statement, then testified that she did not remember the officer, the interview, or the events described in it, and maintained that position,” the court wrote.
Before the trial, E.B was interviewed twice by Dr. Louise Sas, a registered psychologist. E.B told the psychologist she did not want to go to a trial about her uncle, was upset that after giving her statement, CAS took her away from her mother and was afraid it would happen again if she testified.
The psychologist noted that forcing E.B. to testify would further traumatize her. However, on cross-examination, she acknowledged that a possible cause of trauma was the prospect of lying again, meaning, if E.B. had lied in her statement, she would not want to lie again at the trial.
At trial, E.B.’s mother said she signed the Agreed Statement of Facts with CAS because it was a condition of getting her daughter back. She also said E.B’s school friends told her about sexual body parts and “white stuff” coming out of a penis.
Justice Feldman and Thorburn concluded that the police officer conducting a “proper, non-suggestive interview” did not sufficiently indicate substantive reliability to overcome the other reliability problems with the statement.
Justice MacPherson, in his dissent, wrote that the complainant corrected the police officer when he made a mistake describing the assault on three occasions.
“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 appellant’s penis was using her hands, she demonstrated how he pushed his fingers on her vagina and described her uncle ejaculating onto her stomach. In my view, the inherent trustworthiness of her statement is the only likely explanation for her vivid descriptions.”
He disagreed that the protocol used to conduct the interview did not ensure that an occurrence did not influence the child before the discussion or that she was telling the truth. “The complainant’s approximation of the length of the appellant’s penis or that the ejaculate “smelled gross” are untouched by the pornographic video or schoolyard discussions with her friends.”
He also opposed the finding that the trial judge ignored evidence that disproved there was no motive to fabricate the allegation. “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,” he wrote.
“Whatever acrimony exists between the complainant and the appellant does not undermine the reliability established by the procedural guarantees and the statement’s substance.”