R. v. A.M.

2000BCSC0366 Citation: R. v A.M. Date: 20000324 2000 BCSC 366 Docket: X053172 Registry: New Westminster IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: REGINA V. A. M. REASONS FOR JUDGMENT IN VOIR DIRE OF THE HONOURABLE MR. JUSTICE HOOD Counsel for the Crown S. Rail Counsel for Defence D. Porter Date and Place of Hearing/Trial: February 21-25, 2000 New Westminster, BC [1] We are in Voir Dire. [2] The Accused is charged with the assault of, and causing bodily harm to, the child, C.E., who was about four years old at the time, and now is five years and nine months old. The assault is alleged to have occurred on Wednesday, May 6, 1998. The child was called as a witness by the Crown, and after an inquiry pursuant to s.16 of the Canada Evidence Act, R.S.C. 1985, c.C-5, I allowed him to testify on his promising to tell the truth. [3] The child gave limited evidence on direct and cross examination. However, he did not give me a full and frank account of his version of the relevant events pertaining to the alleged assault. Thus the Crown now seeks to have admitted into evidence, for their truth, various out-of-Court statements, made by the child shortly after the assault is alleged to have occurred, to his mother, babysitter, daycare worker, his father and a police officer. The application is based on the Court's principled approach to the admissibility of out-of-Court hearsay statements, as substantive evidence, where the reliability of the statement, and its necessity, are established, as enunciated by the Supreme Court of Canada in R. v. Khan, [1990] 2 S.C.R. 351 and R. v. Smith, [1992] 2 S.C.R. 915. [4] The primary issues then in these voir dire proceedings are the reliability and necessity of each of the out-of-Court statements tendered by the Crown for their truth. A related issue is the question of the admissibility of other statements, which I will refer to as the 'inconsistent statements', generally made by the child at the same time as those tendered by the Crown for their truth, with one exception. The inconsistent statements, of course, are not tendered by the Crown for their truth. [5] Before turning to the testimony of the child, and the statements tendered, I will first set out the facts leading to and surrounding the making of the statements. While I would do so in some detail, it is to be observed that some of the evidence will be relevant to the issue of the ultimate reliability of each statement, a matter for the jury's determination, rather than to the issue of threshold reliability, which is the limited issue I must decide. [6] I observe also that it is sometimes difficult to draw a clear line between the evidence relevant to threshold reliability and that relevant to ultimate reliability; and I do not share the apparent view of some Courts that it is a relatively easy task to do so where there is no jury and the trial judge must make both determinations. In this regard it may be that my task will be a bit easier or clearer if I proceed on the basis of there being a jury waiting in the wings, and I will do so. CONTEXT OR FACTS LEADING TO AND SURROUNDING THE STATEMENTS TENDERED [7] The evidence is that prior to the incident in question the Accused had lived with the child's mother, K.J. and the child, for about five weeks. The witness A.S., who at times I will refer to as the babysitter, and her boyfriend also lived together in the apartment with them. Another man had lived in the apartment earlier on, until January, 1998, and from the child's conduct at the time, and thereafter, the mother suspected that the child may have been molested by that man. [8] The mother also testified that for approximately four months prior to the incident the child was having nightmares about monsters, and about people coming into his room in the night. On some occasions the man in his nightmare would be the Accused, and on others it would be someone else. The Accused, it is noted, was only living in the apartment for the last month or so of the four month period over which the child was experiencing the nightmares. During the four months the child had become bad tempered, aggressive and whinny and was terrified of sleeping in his own bedroom, according to the mother. [9] The mother also testified that the Accused and the child did not have much of a relationship. She said that they really did not pay much attention to each other. While the child was jealous of the Accused at times, he was more interested or concerned in diverting her attention away from the Accused, than having the Accused's attention himself. [10] The evidence is that on the evening in question the mother had put the child to bed some time earlier. He was wearing two piece flannel pyjamas. The top had long sleeves and was a pullover which had a round, as opposed to a vee, neck. There were no bruises or marks on his face or neck at the time. She believes that the child was asleep because he was not making any fuss. [11] The mother said that while watching T.V. in her bedroom the Accused came home. She and the Accused sat and chatted while watching T.V. for about 20 minutes. She then went to take a shower, leaving the Accused lying on their bed watching T.V. Only the three of them, that is the mother, the Accused and the child, were in the apartment at the time of the incident. [12] About five minutes later she heard the child screaming. She thought that he was nearby, that is in her bedroom, so she called to him to come into the shower. About a minute later the Accused carried the child into the shower. She immediately noticed that the right side of the child's face, that is his forehead and right eye, were swollen, and she exclaimed: "Oh my God, what happened?" The child's immediate response was to say: "A. hit me". This is the first statement tendered. [13] She asked the Accused what was going on. He told her that he did not know, that he was in the kitchen getting something to eat when he head a "clunk" in the child's bedroom and the child start to scream. He went to the bedroom and saw the child on the floor, on some clothes at the end of his bed, beside his large metal toy dump truck. He picked him up and then brought him to her in the shower. [14] At the time the mother believed that the child was half asleep. She now believes that is not the case. It is obvious that she did not believe the child when he said that the Accused had hit him; because of the nightmares he was having and his jealousy of the Accused. Thus, after immediately getting out of the shower, she asked the child was he sure of what had happened, was he sure that he was not dreaming, and he told her that he did not know. This is the first of what I have called the 'inconsistent statements'. [15] After the incident she and the Accused took the child into their bedroom. She was trying to calm him down, and she put on cartoons for him to watch. She and the Accused then sat and talked about what must have happened. They then went to the child's bedroom; where she saw a pile of clothes and the truck on the floor at the end of the bed, in the area where the Accused had said that he found the child. At the time she surmised that the only thing that could have made the "clunk" was the truck. The child's bed consisted of a mattress sitting on a box spring which sits on the floor. The top of the mattress was about one and one half feet off the floor. [16] It appears as well that at the time the mother did not believe, or did not want to believe, that the Accused had hit the child; rather she believed that the child had fallen off his bed, face forward, into his Tonka truck. She told the witness, A.S., the daycare worker, C.K., and a social worker, that that is what happened. I observe also that initially she did not tell the police about the first statement, i.e, that the child had said that the Accused had hit him. She simply told the police that at the time the child was half asleep, and had said that he did not know what had happened. When pressed by the police: "Lets go all out on this", she then told them about the first statement. I observe also that her recorded statement was being given to the police shortly after she had been told that the child would be taken away from her by the Ministry. In fact the child spent the next two months with his biological father before he was returned to the mother. [17] Before leaving the first statements, i.e., "A. hit me" and "I don't know", both made in response to the question "what happened?", I will refer briefly to the mother's description of the child's injuries on the night in question, particularly with regard to the front area of his neck. The major injuries consisted of a raised blue bump in the middle of the child's forehead, above the right eye, a burst blood vessel in the eye itself, and bruising almost completely around the right eye, that is, directly above it, on the inside of the nose and below and to the outside of the eye. Additionally he had other scrapes or bruises in the area below both ears extending in a line down and around his throat. [18] She looked at the photographs of the injuries, taken about two days after the incident, and noted that she had not seen some of the injuries shown in the photographs; that in particular the marks she saw on the front of his neck she thought were "lower down", at the neck or shirt line. She could not see these marks in the photographs. The marks shown in the photographs, for example, photograph #7, were "different marks altogether", and much higher. I do not recall her being shown photograph #3, which is of the front of the child's neck where, according to other witnesses, a faint horizontal red line, or red lines, in the middle of the neck, across the larynx area, are to be seen. [19] I turn to events leading up to the second statements, made to the apartment mate witness, A.S. whom I have referred to as the "babysitter". The evidence is that the mother did not want to take the child to daycare on the day following the incident, because of the fact that the daycare people might misinterpret the child's injuries and bring in the police or Ministry, with the result that the child would be taken away from her. Instead she arranged for her apartment mate, A.S., who is 23 years of age, to babysit the child that day. [20] A.S. testified that when she returned home on the night in question, the mother showed her the child's face, and they discussed what the mother thought had happened. Apparently the witness did not believe the story told her by the mother, that the child had fallen into the dresser and then on to his toy truck. Rather she believed that the Accused had assaulted the child. [21] She testified that she babysat the child on the following day, when they went to visit a friend of hers, who has two young children. While they were visiting her friend, the child said to her that the Accused had punched him in the face. She could not remember how the matter came up. She did recall that at the time the child was complaining about his right eye injury. She denied that she was asking the child questions at the time. [22] Later on, according to her testimony, she asked the child where he got the scratches or marks on his neck, and the child said that the Accused "did this", demonstrating by placing one hand around the front of his throat or neck, what the witness described as a choke hold. She recalled that at the time the front of his neck looked "blotchy, almost like a rug burn", but with gaps, that is, it was not a continuous line, referring to the middle front area of the child's neck. The second set of statements tendered then, are those made by the child to the babysitter, that the Accused had punched him in the face and had choked him. [23] A.S. also testified about a conversation which she says she had had with the Accused sometime earlier, in which he told her that he could not stand the child, that the child was irritating and always getting on his nerves, was mouthing off at his mother and not listening and so on. She said that the Accused said that that was why he generally came home later on in the evenings, when the child was in bed, so that he would not have to deal with him. [24] On cross-examination A.S. reiterated that she did not believe the story told to her by the mother on the evening in question, that the child had fallen off his bed, hit his dresser and then fallen face forward onto his Tonka truck. The witness believed that either the mother or the Accused had caused the injuries. However, she did not believe that all of the injuries had been caused at the same time. The reason she asked the child about the injuries to his neck was because she thought that another child might have done them, or that he had fallen. She also said that when she was questioning the child she was curious to see whether her suspicions about the Accused were correct. [25] The evidence is that two police officers arrived at the apartment Friday afternoon to interview A.S. The first officer had forgotten his tape recorder and had to leave the apartment to retrieve it. During the time that he was absent she spoke to the second officer, according to her and to his testimony. The first officer then returned and he taped his detailed interview of her. [26] It appears from the portion of her taped interview put to the witness, and from her evidence on cross-examination, that while given an opportunity on more than one occasion to tell the officer, in response to direct questions, that the child had told her the day before that the Accused had hit him and had choked him, she did not do so. Whenever she was asked why she did not tell the police officer her trial evidence that the child had told her these things, she simply said that after two years she did not know. She gave the same answer when she was asked why she did not tell the officer, in response to specific questions, about her trial evidence that the Accused had told her that he could not stand the child, came home late to avoid him and so on. [27] For example, when asked whether she had heard anything about the Accused having hurt the child in any way, she said: Yes, that she had been told this by another person whom she named. She did not mention what she says the child told her. Another example was when she was asked if she knew how the child's injuries had happened and she said "supposedly that he fell out of his bed, hit his dresser and then fell from his dresser to his Tonka truck." There she was obviously referring to what she had been told by the mother. Again, she did not tell the officer what she says the child had told her. A final example is contained in the following exchange at the end of the interview: Q. Is there anything else that you know about this kind of ... this problem, or what happened to the child? A. No, I don't. Q. Do you know of anybody else that might know something? A. The only person that I think would know anything, is the mother and the Accused because they were the only ones here. [28] A.S. was cross-examined in some detail as to why she did not tell the officer taking her statement about the prior conversations she asserts occurred between her and the child and between her and the Accused. It was put to her in effect that she did not do so because she had put the words in the child's mouth and knew that what he said was not reliable, and because the statement alleged to have been made by the Accused simply did not happen. She denied that this was the case. [29] I observe also that because of the defence's position during the cross-examination of this witness, that she had fabricated the evidence in question, I permitted the second constable to tell me what the witness had told him about the subject matter, while they were awaiting the return of the first officer; not for the purposes of the truth of the matter, but to show that she had told the police about the statement made to her by the child. In this regard the second constable, Constable Thompson, confirmed that while they were waiting the witness told him that when she asked the child about his facial injuries he told her that the Accused "did it", and also indicated that the Accused "grabbed/scratched him around the throat". [30] I will deal with the evidence of the social worker, who apparently accompanied the police during their investigation, as it relates to the witness A.S. Her evidence was put in by way of the following admission contained in paragraph 17 of an affidavit which she swore on June 12, 1998 in eastern Canada. The affidavit is based on her brief notes of what A.S. told her when they spoke, and, on her more complete notes made later on the afternoon of May 8, 1998 at her office. [31] It is admitted not for its truth, but only to show what the social worker says A.S. told her. It is as follows: 17. Following the removal on May 8, 1999 and prior to my interview with K.J., I attended her residence with Constable Thompson and Sergeant Smith. We found A.S. home alone. She was aware that C.E. has been taken to hospital by the police because of injuries to his face and neck. She indicated that she had lived with K.J. and C.E. for the past few months. A.S. said K.J. told her C.E. received his injuries when he was sleepwalking and walked into a dresser and feel on his toy truck. A.S. said she did not believe this explanation. She expressed the view that A.M. had assaulted C.E. She stated that the night he was injured C.E. was apparently asleep when she heard a "bloodcurdling" scream come from his bedroom. A.M. was in the room with C.E. at the time and K.J. was in the shower. C.E., K.J. and A.M. spent some time talking in C.E.'s room after A.S. heard him screaming. She advised me that K.J. did not send C.E. to daycare the following day because she said she was afraid that the Ministry would be called and C.E. taken away. [32] On cross-examination the witness said that she did not recall speaking to the social worker, only the two police officers. However, she vaguely recalled a woman being present. She was asked if it was possible that she told the woman that she, that is the witness, heard the bloodcurdling scream coming from the child's bedroom? She said that she was not home at the time. When asked whether it was possible, she said that it was not her recollection. [33] It is Mr. Porter's position that what the social worker is saying in paragraph 17 quoted above is that A.S. told her that she was in the apartment at the time of the incident and that she heard a "bloodcurdling" scream. He submits that A.S. is not a credible witness and should not be believed for this and other reasons, or that, at the least, there should be a reasonable doubt as to whether the child ever complained to her. I observe here that in my view this evidence and the position goes more to the question of ultimate reliability than to threshold liability. [34] I turn now to the statements alleged to have been made to the daycare person, C.K. She testified that on the Friday morning, when the mother and child arrived at the daycare centre, shortly before 8:00 a.m., the mother told her that the child had fallen off the bed onto his toy truck, and that she should not ask the child about it because he was shy. The child at the time was laughing and being silly and hiding behind his mother's skirts. The witness said that she then said to the child something to the effect that his injuries looked like they hurt, and asked him what had happened. He told her exactly what his mother had just said, that is, that he had fallen off the bed onto his toy truck. [35] The witness testified that later on, after the mother had left, when she and the child were working on a puzzle, she said to him again that his injuries looked like they hurt, and asked him what happened. She said that the child replied "A. comes into my room at night. I don't like him. He hits or hurts me." - she could not recall what he said. In particular she could not recall whether the child said 'hits' or 'hurts'. [36] She told her supervisor about the conversation with the child. She and her supervisor then sat down and in effect the conversation was repeated. The child's answer on this occasion was "I don't like A.M. He is mean. He hits or hurts me. He came into my room. Mummy freaked out." Again she could not recall whether the child used the word 'hits' or the word 'hurts'. It was then decided that the child's father should be called. Her supervisor did not testify. [37] On cross-examination the witness agreed that her memory was better at the time of the preliminary inquiry them at trial. She adopted her evidence, given in the earlier proceeding, that in response to her initial question as to what happened the child said that he fell off the bed onto his truck. When it was put to her that she did not believe the explanation, she said "I found it strange". She could not recall the questions that she put to the child. She did not believe that she asked him where the injuries occurred. She acknowledged her preliminary inquiry testimony that she had asked him how and where they had happened. She said again that the child told her that he did not like the Accused, that the Accused came into his room and either hit or hurt him. [38] The witness acknowledged that she made notes and a report after the incident. The only reference in the report to the conversation is as follows: While we were talking to C.E. he mentioned that A.M. comes into his room when he is sleeping. He said he does not like A.M.. He also said "Mum freaked out", and then he got hurt. He would not tell [them] what happened to his eye. He did not want to discuss it. When it was pointed out that her record did not record the child's accusation that the Accused hit or hurt him, she said: "I didn't write it in". She denied that it was because the child had not told her that. She acknowledged that she recorded the important parts of the incident. She also acknowledged that what the child had said to her, about someone hitting him, was an important part. [39] She could not remember whether or not she told the father, when he arrived at the daycare, what she says the child told her. She was asked whether the following statement contained in her report refreshed her memory that she had told the father, i.e., "we told him what was told to us", and she said: No. I am satisfied from her evidence, and from that of the father, and his conduct, that she did tell the father what she had been told by the child. The third set of statements tendered then are those made to the daycare worker; the first being that he did not like the Accused because he came into his room at night and either hit or hurt him; the second being slightly different, that he did not like the Accused because he was mean and had come into the room and hit or hurt him, and that his mother had freaked out. There is, in addition, the inconsistent statement that he fell off his bed onto his truck. [40] I turn next to the statement alleged to have been made by the child to his 28 year old father, after he was picked up at the daycare centre by the father and his girlfriend. The father said that when he saw the child's face he began to cry, and he took the daycare worker aside and asked her what happened. When they got into the car in the parking lot he asked the child what had happened and the child said "nothing, it was an accident". He said that he, the witness, began to cry again, and told the child in effect that these things do not happen accidentally, and asked him what had happened to his face. The child, who then was crying as well, said: "A. did it", and then put both hands to the front of his neck demonstrating a choking grip. This is one of the fourth set of statements tendered, that the Accused had caused the injuries to his face and choked him. The second was made to the father during the weekend, and I will refer to it in a moment. [41] The father drove to the police station from the daycare centre. At the station they were met by Constable Thompson, the second constable I referred to earlier, and Ms. K.M., the Social Worker. After the child was interviewed by the constable, they went to the hospital where he was examined by Dr. Erhardt. They then went to the father's home where they remained for the weekend. [42] The father said that during the weekend he had six or seven random conversations with the child as to what had happened. It is clear that the child was most reluctant to discuss what had happened with him, and on a number of occasions he would walk away or leave the room when asked what happened. At least on one occasion, as he had said earlier in the parking lot, he told his father that it was an accident. [43] The witness said that the child would only "open up" after he showed him his face in the mirror; that at that time the child told him that at the time of the incident he was having a bad dream. He was crying for his Mummy, but she did not come into his bedroom. The Accused then came in and hit him and tickled him. He demonstrated the tickling by holding his head back and flicking his finger violently under his chin. The child then told him that he ran out of his room and to and into the shower, where his mother was. The child also said that the mother said: "Oh my God, Oh my God, a lot" and that there was "lots of blood". [44] The evidence is clear, and the witness acknowledged, that when questioning the child, both in the parking lot and over the weekend, but more so over the weekend, he had to pursue and prod the child to get him to answer his questions as to what had happened. The child was always reluctant to talk to him about it and he had to encourage him, "like giving him candy," in order to get him to give the answers involving the Accused. [45] Constable Thompson questioned the child when he was brought to the police station by his father and girlfriend. The constable took photographs of all of the child's apparent injuries. In particular, he photographed what he described as a very light red coloured bruise across the front of the trachea and throat of the child. He said that the marks did not go completely around the throat, as testified to by other witnesses, but rather across the front of his throat, and were approximately two inches in length. He acknowledged that it was very difficult to see these marks in photograph #3, the only photograph of the front of the child's throat. He said that the photograph did not show as well what he saw with the naked eye. [46] The constable, who was in uniform, questioned the child in a small room in the presence of the father and his girlfriend. He too had problems trying to get the child to answer his questions, and to keep him focused. He did not record the interview in which he asked who, what, where, when and why. The interview took 25-30 minutes. Eventually the child told him that at the time of the incident he was sleeping and having a bad dream. The Accused came into his bedroom and grabbed him around the neck, and it had hurt him. The constable read the following note from his report: Victim stated directly to P.C. 50 that A.M. had grabbed Victim by the throat in his bedroom while he was sleeping and having a bad dream. Victim stated that this happened a couple of days previous, and that it had hurt. [47] The constable also acknowledged that it was very difficult keeping the child's attention when he was talking to them. As a result he continually had to ask him what had happened, and his questions were quite prodding. On more than one occasion the child told the Constable that he did not know what had happened. The Constable simply kept repeating the question until he eventually answered. [48] The constable was asked from what he saw did the child appear to be looking at his father for permission to speak as kids do in the presence of strangers. He said: Yes, that the child would look at his father during the questioning, but he could not speculate why, or if he was seeking permission. [49] The boy's father took the child to the Emergency Department of a local hospital, after the interview with Constable Thompson. He was there examined by Dr. G. Erhardt, a medical doctor with expertise in the nature and causation of injuries to the human body, with many years experience working full time in hospital emergency departments. [50] Dr. Erhardt testified that he examined the child on May 8, 1998. He estimated that the child's injuries had occurred within 24 hours or so, with 48 hours being the maximum. He was of the opinion that the tiny ring of broken blood vessels, which appeared to go all the way around the child's neck, and was difficult to see unless one was looking for it, probably had occurred within 24 hours. He opined that the marks were caused by some sort of friction around the neck; that the boy being manually choked could be one way that the marks occurred. The photographs show faintly the marks which he described as 'petechia', or little spots of haemorrhage. He also said that when he examined the child's neck he did not find any obvious finger pad marks. [51] The doctor also had a brief conversation with the child. He asked him how he had hurt his face, and the child told him that he had "fallen on his truck". He also asked the child whether any one had hit him, and the child said No. During the conversation and examination the child was "busy exploring the bed and the room and looking around". THE EVIDENCE OF DR. M. COLBOURNE [52] Dr. Colbourne was qualified, by consent, to give opinion evdience about the nature and cause of injuries to children. She was qualified as a paediatrician in 1993, and was certified in paediatrician emergency medicine in 1994. Since then she has worked at Childrens Hospital, part-time in the Paediatrician Emergency, and part-time on the Child Protection Team, which is concerned with such matters as child abuse, sexual abuse, neglect and so on. [53] She examined the child on May 13, 1999, about a week after the incident at Childrens Hospital. At that time she observed numerous injuries on the child which she recorded, including a broken blood vessel in his right eye, the bump on his right forehead, the bruising almost around the entire right eye, a small brown bruise on the right cheek and a small yellow/brown bruise over the jaw, just below the ear on the left. [54] Crown Counsel asked her to look at the photographs showing the injuries to the child's face and neck, and to compare what she saw in them to what she saw when she examined the child. A number of the injuries or marks shown in the photographs were not present when she examined the child. For example, the ring of petechia, or little spots of haemorrhages, which Dr. Erhardt found encircled the child's neck, were not present when she examined him. She said that they were blood vessels that had been burst in response to pressure, for example, a strangle hold; that they clear quickly in some cases. [55] Dr. Colbourne described the haemorrhaging to the right eye as blood leaking into the white of the eye from a broken blood vessel. This generally occurs from increased pressure to the head, for example, excessive coughing. It is a negative pressure which occurs when an object, for example a ball, occludes the orbit, that is, covers it. A blow to the eye orbit, such as a punch to the eye, could cause it. She was asked the hypothetical question: assume that on May 8 the child exhibited a faint ring of peteicha marks encircling his neck, as well as the injuries she personally saw when she examined him. She was then asked whether she could express an opinion as to the cause of the injuries to his face and neck. [56] The doctor said that she was concerned about the possibility of non-accidental trauma, because the injuries that she saw were consistent with that conclusion. She said that when you add the peteicha ring, "I would be highly suspicious of strangulation". Her conclusion was that she was extremely concerned that the child had suffered inflicted trauma. [57] When asked why she was concerned she said it was because she could not envisage an accident in which anyone could sustain "that particular constellation of injuries accidentally". The neck bruises which she did not see, and those which she did see to his face, particularly caused her concern. The child's facial injuries, particularly the injuries to the right eye and orbit are consistent with blows being applied to the child's face. She said that coupled with the further evidence of bruising around the neck, indicating strangulation, her suspicions of inflicted trauma were further increased. [58] She could not assess the amount of force required to cause the peteicha marking. She said that it was unusual to see these kinds of bruising, and that enough force was required to cause the small breaks in the vessels and blood to escape under the skin. It was consistent with manual strangulation, by hands encompassing the neck. It also could have been caused by a tight neckline or collar, for example, someone grabbing the child and pulling his collar tight around his neck. [59] Dr. Colbourne said that she could not rule out the possibility that the child fell and bumped his forehead. However, she noted that this usually happens to toddlers, but not to children in the child's age range. Such children tend to protect themselves by putting up an arm when they fall. They do not often present with facial or forehead trauma or bruises to the nose or eyes or cheeks. She said again that the injuries to C.E.'s right eye are consistent with force to the eye area, i.e., a punch or a slap. The injuries to the right cheekbone are consistent with force, enough to break the blood vessels. [60] Dr. Colbourne said that she could not estimate the number of blows it would take to cause the injuries to the child's face, but there had to be at least four blows, one to the left side, one to the right side, and two to the front - that is to the forehead and to the eye areas. [61] She was asked to assume that all the injuries occurred at the same time. She was then asked whether or not the child could have fallen out of his bed and been injured by contacting his dresser? She did not think that the whole constellation of injuries could have occurred at one time, because there were four separate areas of injury. Perhaps the forehead injury could have occurred in that manner, but not the others. [62] She was then asked whether or not the child could have stood up on his bed and then fallen onto his truck. She opined that falling on the Tonka truck could not have caused the whole constellation of injuries, not the whole group of injuries. [63] On cross-examination the doctor was asked to assume that all of the injuries occurred at the same time, except the neck injuries which occurred at another time. She was asked to assume that he fell striking the dresser, then continued falling striking the truck. Could that possibly cause the injuries that she had observed. She answered that the child would probably have to have hit three or four different areas; that she could not see this happening in one fall. She did not believe that the Tonka truck could cause the whole constellation of injuries, or some of the individual injuries. She could not see four particular areas of bruising resulting from falling off the bed. Two would be the maximum. [64] She was then asked whether it was possible that he could have fallen against the dresser and injured his right eye, on one of the dresser drawer knobs, and his forehead at the same time? She said that the eye injury requires an object to hit the full area of the eye, and that the knobs shown in the photographs were not big enough. The extensive bruising around the bony orbit of the eye was quite unusual. It is generally a "protected area". She could not see any area on the Tonka truck which could have caused the injuries to the eye. A relatively round object is needed, which would cause bruising to the upper brow, inside nose, and lower cheekbone areas. [65] Dr. Colbourne agreed that most scenarios put forward by Counsel were possible, but opined that they were highly unlikely; for example, the suggestion that the boy fell into the dresser, injuring his forehead and cheek, then continued to fall onto the Tonka truck and a round tube-like toy lying in the truck. She noted that with each successive strike, from the dresser on down, the force is less and the injuries suggested were unlikely. [66] She was asked whether the peteicha shown in the photographs could have been caused by the child falling forward and catching his pyjama top on a dresser drawer knob? She said that it was possible that some of the marks could have been caused that way, but not all of them, referring I believe, to those on the upper sides of the neck as opposed to those across the front. [67] Dr. Colbourne was given other scenarios, for example, the child falling onto his toys, a workbench and so on. She opined that perhaps one or two of the injuries at most could have been caused in that manner but not all of them, especially the eye injury. [68] In summing up Counsel asked if it was her evidence that, apart from the peteicha injury, the other injuries suffered by the child could have happened during a sequence of events put to her earlier, for example, the child falling off the bed into the dresser, then down onto the dump truck and so on. She said again that it was possible, but extremely unlikely. She was then asked to add to the scenario the child's pyjama top catching on the dresser; was it still possible? She said again that it was even less likely because the child's fall would have been broken in the sequence, and he would not have fallen further with any force. In her view it is extremely unlikely that the injuries suffered by the child were accidental. [69] I will observe here that I am satisfied on a balance of probabilities, which is the test to be applied on this hearing, that the injuries to the child's face and neck were not caused accidentally in a fall, but were more likely caused by the child being manhandled, hit and grabbed by a person. Given the nature, location, extent and number of injuries to the child's face and neck I do not believe it possible that they were caused by coming into contact with either the dresser or the configuration of the toy truck, or both of them, or that they could have occurred in a fall. Nor do I believe it possible that the child's shirt could somehow have caught onto the dresser and caused the necklace like bruising from ear to ear around his neck. [70] In my opinion the injuries to the child's face were probably caused by a number of blows from a blunter instrument, like a fist or a hand, and the injuries to his neck were probably caused by someone gripping or grabbing his neck. In this regard Dr. Colbourne's evidence, which I accept, simply affirms or bolsters the common sense inferences to be drawn in the circumstances. [71] Before turning to the subject of necessity, I will set out the brief evidence given at trial by the child on direct and cross-examination. EXAMINATION IN CHIEF BY MS. RAIL: Q C.[E.], I want to ask you some questions now, okay? Did you used to know someone named A.[M.]? A Yeah. Q Yeah. Did anything bad ever happen with him? A No. Q No? Do you like A.[M.]? A No. Q How come? A Because he tickled me under the neck Q Oh. Can you show us how he tickled you under the neck? A I don't know how. Q And where on your neck did he tickle you? A I don't know. Q Did it feel good or bad when he did this to you? A Bad. Q Sorry? A Bad. Q Okay. Did he do anything else bad to you? A No. Q Where were you when he did that to you? A I don't know. Q Do you remember what you were doing before that happened, when he tickled under your neck? A I'd been sleeping on my bed. Q Do you know where your mommy was when that happened? A She was in the shower. Q Did A.[M.] say anything to you -- A No., Q -- when he did that? A No. Q Is there anything else that you want to tell the judge about what happened with A.[M.] at that time? A No. Q Can you think of anything else bad that happened on that time with A.[M.]? A I don't know what else he did. Ms. Rail: All right. Thank you C.[E.]. Those are my questions. You've got to wait now, okay? This nice man over here, Mr. Porter, is going to ask you some questions, all right? CROSS-EXAMINATION BY MR. PORTER: Q C.[E.], did you say that you had been sleeping on your bed before A.[M.] tickled you? A Yeah. Q And did you have a bad dream before A.[M.] tickled you? A No. Q Do you remember telling people that you did have a bad dream? A No. Q Could it be that you just dreamt A.[M.] tickled you? A Pardon me? Q Maybe you just dreamt that A.[M.] tickled you? A No. Q You said you don't like A.[M.]? A Yes. Q And you said it's because he tickled you? A Mn-hm. Q Please say yes or no for us. A Yes. Q A.[M.] used to live with you and your mom, didn't he? A Yes. Q And when A.[M.] lived with you and your mom, your mom didn't pay as much attention to you, did she? A No. Q And isn't that why you don't like A.[M.]? A Yes. Q And C.[E.], you know the difference between tickling and hurting, don't you? A Yeah. Q Do your friends tickle you sometimes? A No. Q Do you tickle your friends sometimes? A No. Q Do you hurt yourself when you are playing sometimes? A Yes. Q Does it tickle? A No. MR. PORTER: Those are all my questions. MS. RAIL: Nothing arising. THE COURT: Thank you C.[E.]. You can go now, bye bye A Bye. NECESSITY [72] I will deal with necessity in a general sense, without regard for the moment to the specific statements tendered. I will also consider these matters as if this was a jury trial, as I indicated earlier, with particular regard to threshold reliability as opposed to ultimate reliability. [73] Since the landmark decision of R. v. Khan, out-of-Court hearsay statements made by a child have been admitted into evidence for the truth of their content, where the Court is satisfied that the requirements of reliability and necessity are met. The ever evolving law has determined that such evidence should be admissible, notwithstanding the fundamental right of the Accused to face and cross-examine his accuser in the Courtroom, to test his credibility and the reliability of the evidence given. The exception is justified, and rightly so, for a number of reasons, prominent among them being the Court's search for the truth, the Court's experience and realization of the horrendous difficulties young children face when they are required to again talk about their traumatic experiences, and testify about them, long (to them) after they occurred, and hopefully had been forgotten, the unlikelihood that a young and unsophisticated child would have reason, or even the capability, to fabricate his or her statements, and the fact that statements which meet the criterion of necessity and reliability should allay the traditional misgivings about such evidence. The Courts have noted that often in such cases the out-of-Court statements of the child are the best evidence of the child's version of what happened. [74] Even where a child testifies, necessity may be established where the trial judge is satisfied that the admission of the out-of-Court statements is still reasonably necessary in order to place a full and frank account of the child's version of the relevant events before the jury. See the decision of MacLaughlin, J., as she then was, in R. v. Rockey (1996), 110 C.C.C. (3d) 481 at pg.490, citing with approval the decision of Doherty, J.A.., speaking for the Court, in Khan v. College of Physicians and Surgeons of Ontario (1992), 76 C.C.C. (3d) 10 (Ont.C.A.) at pg.24, and which often is referred to as Khan #2. [75] In my view, necessity should be considered in the context of the use of alternative or substitute evidence, where it appears that sufficient direct evidence of the child, to place a full and frank account of his or her version of the relevant events before the jury, is not available for some reason which is acceptable; and most will be so. In the case at Bar I do not have before me a full and frank account of the child's version of the relevant events. All I have is his trial testimony, which is set out above. And in my view it is not a reliable indication or description of what is alleged to have happened during the violent and traumatic events which occurred some two years ago, when he was about to turn four years of age. If the out-of-Court statements of the child then are not admitted, the child's version of the events will not be before the jury. The question is whether on the evidence before me, particularly the child's trial evidence, the Crown has established that it is reasonably necessary to allow into evidence the child's out-of-Court statements. [76] The question is not without some difficulty. There is no presumption of necessity, and it cannot be lightly assumed. It must always be considered by the Trial Judge on the circumstances of the case before him. He must determine whether the child reasonably could not have given a full and frank account of the relevant events, thus making it necessary to call substitute evidence. See Rockey at pg.489. SUBMISSIONS ON NECESSITY [77] Ms. Rail, for the Crown, acknowledged on my inquiry, that she probably should have asked the child what caused his injuries. She did not agree that the photographs should have been put to him to remind him of his injuries, because of the possible traumatic effect on the child of doing so, given his actual evidence. In any event, she submitted that the failure to specifically question the child about his injuries was not fatal to the Crown's case. It will be seen that having re-visited the issue and the trial proceedings, and having carefully reviewed the child's trial evidence, I am in agreement with these submissions. In my view the Crown's conduct, in not asking any further questions of the child, was reasonable. And Defence Counsel did have the right to cross-examine the child further, for what it was worth. [78] Ms. Rail noted that in Khan #2 the child testified, but as Doherty, J.A. put it, she was unable to give anything approaching a full description of the events surrounding the alleged assault. The Court of Appeal allowed the child's out-of-Court statement to the mother to go in; on the basis that it was reasonably necessary in order to put a full and frank account of the child's version of the relevant facts before the jury. In the case at Bar, the child could only remember that the Accused had hurt his neck by what he referred to as bad tickling. When asked whether he could think of anything else bad that had happened at that time with the Accused, he said: "I don't know what else he did". [79] The child could not recall what happened. Hence, his out-of-Court statements are reasonably necessary to put his version of events before the jury. And reference was made to Khan #2 at pg.25, that the determination is an ad hoc one, and that the first four factors referred to by Doherty, J.A.., are clearly applicable, and support necessity. At the time the child was under four years of age, and approximately two years had passed by the time he testified. His demeanour and evidence showed that he could not recall what had happened, and that his description of events was quite incomplete. [80] Mr. Porter, for the Accused, said that the Crown's submission has a number of problems. First, when the Crown asks that the out-of-Court statements be admitted to provide the Court with an accurate account of the child's version, it ignores the fact that the out-of-Court statements contain two different versions by the child. Necessity must be directed to a single version of events, but not to two contrary versions. Second, the out-of-Court statements contradict what the child said in Court. Further, it was not established that the child was either unable or unwilling to recall detail. This distinguishes this case from those relied on by the Crown. A further distinction is that in none of the cases referred to was there need to reinterpret the central fact of the injuries, from something apparently innocuous to something apparently harmful. In those cases there was never an issue of whether the act complained of was criminal or something innocent. Finally, in the cases referred to there was no motive to misrepresent on the part of the complainant. DISCUSSION [81] The child, who was described by Crown Counsel as a very active child, testified sitting on a support person's lap in the witness stand, without objection. While the child seemed to be of normal intelligence for his age, the situation was clearly somewhat tense. [82] The child's trial evidence was to the effect that he did not like the Accused because he had tickled him under the chin, and rather than feeling good it felt bad. Before the Accused tickled him under the chin he had been sleeping in his bed. His mummy was in the shower. The Accused did not do anything else bad to him. His evidence concluded as follows: Q. Is there anything else that you want to tell the Judge about what happened with A. at that time? A. No. Q. Can you think of anything else bad that happened on that time with A.? A. I don't know what else he did. [83] As I have already indicated, I am satisfied that the child could not give his version of what happened some two years earlier; that his recollection of the events had deteriorated to a substantial degree over the two year period; perhaps because of the influence of others, as well as time and the trauma itself. In my view reasonable efforts were made by the Crown to obtain his version of the events. Finally, I am satisfied on a balance of the probabilities, that any further questioning of the child would not have put before the jury a full and frank account of his version of the relevant facts. THE INCONSISTENT STATEMENTS [84] It is true, as Mr. Porter points out, that, save in the case of the babysitter, each statement of the child which the Crown tenders for substantive use is accompanied by another statement which is inconsistent with the tendered statement. Generally speaking the conflicting versions are accident, that the child fell off his bed face down onto his toy truck, on the one hand, and intentional injury, that the Accused hit and choked him, on the other. There is also the inconsistent statements to Dr. Erhardt, which fall on the accidental injury side. It is the defence's position that these inconsistent statements prevent the Court from finding that the tendered statements are reasonably necessary. [85] I am unable to agree with Counsel's submission. The flexible definition of reasonable necessity is met when the Crown establishes that reasonable efforts are unlikely to bring forth a meaningful account of the events from the child by his direct evidence. The inconsistent statements are not a factor to be considered when deciding necessity. Rather, they are more appropriately considered on the question of threshold reliability, and I will deal with the point here. [86] It is for the jury to decide the ultimate reliability of what the child said, the credibility of his statements, which statements are true, whether there is a reasonable doubt and so on. In my view it would be remarkable if the principled or Khan approach to hearsay evidence should not be applicable to the out-of-Court statement of a child simply because an inconsistent statement was made at the same time as well. This is so particularly where the Crown alleges that the inconsistent statement is not true, but in fact was suggested or coached by a parent. [87] In my view, notwithstanding the existence of an inconsistent statement, the criterion of reliability remains the same. The circumstantial guarantee of trustworthiness of a statement is a function of the circumstances under which the statement was made. An inconsistent statement made at about the time that the statement tendered was made, is only one part of those circumstances which must be considered. If, notwithstanding such inconsistent statement, the statement tendered is found to have been made under circumstances which substantially negate the possibility that the child was untruthful or mistaken, the hearsay evidence is said to be reliable, that is, a circumstantial guarantee of trustworthiness has been established. See Smith. [88] And it will be for a jury to decide what weight should be given to the inconsistent statement when deciding the ultimate reliability of the tendered statement. And in my view what I have said applies equally to the inconsistent statements made to Dr. Erhardt, given their close proximity to the various statements tendered by the Crown for their truth. An inconsistent statement which is more remote from the statement or statements tendered, may be of less concern when considering the threshold liability of the tendered statement, but it still will be a factor to be weighed by the jury. [89] As Chief Justice Lamer and Iacobucci J., speaking for the majority, said in R. v. Hawkins (1997), 111 C.C.C. (3d) 129 (S.C.C.) at pg. 157: The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it remain determinations for the trier of fact. (My emphasis). [90] In my view, assuming necessity and reliability have been met, the inconsistent statements in the case at Bar should be admitted into evidence and form a part of the basis for evaluating the truth of the tendered statements by the jury. The inconsistent statements go in not for the truth of their contents, but because they were made as part of a total conversation or statement, or in close proximity thereto, and are factors to be considered by the jury when considering the ultimate reliability and trustworthiness of the statements tendered by the Crown for the truth of their contents. They are not only important to assist the jury to adjudge the credibility of the child's statements, but they also enable the defence to make a full answer and defence. See R. v. Rockey. THE CHILD'S TRIAL EVIDENCE v. THE TENDERED STATEMENTS [91] Mr. Porter also took the position that the tendered statements were inconsistent with the child's trial evidence and therefore were not reasonably necessary. I am not satisfied that the tendered statements are in substantial conflict with the child's trial evidence. His trial evidence is really to the effect that he no longer recalls all of what he had been able to recall within the first week of his injuries when his statements were made. However, even if the asserted conflicts or inconsistencies exist, in my view they do not bar a finding of reasonable necessity, which has to do with the availability of the child's version of events from the child. Nor would trial evidence inconsistent with statements tendered bar a finding of reliability, which has to do with whether there existed a circumstantial guarantee of trustworthiness at the time that the statements were made. And, as I have already found, his trial evidence satisfies me that the out-of-Court statements are necessary if the jury is to have the child's version of the events before it, and be in a position to discover the truth of what happened. [92] I return to Mr. Porter's submission, his next point being that it was not established that the child was either unable or unwilling to recall detail. I have already made a contrary finding. I am satisfied from his evidence at trial that the child was probably unable to give his version of the events in a meaningful way. [93] Finally, in my view, the fact that the cause of the child's injuries is disputed does not foreclose a finding of necessity. Nor am I able to agree to the suggestion that the child may have misrepresented what happened, even if it is the case that he was strongly jealous of and disliked the Accused, which I am not prepared to find. In particular, I am not prepared to find on the evidence, on a balance of probabilities, that at the time of his injuries this young child was capable of concocting a deliberate untruth about what happened when he told his mother, while in the Accused's arms, that the Accused had hit him, or thereafter. Nor am I prepared to conclude on the evidence, on a balance of probabilities, that he might be mistaken about being hit or choked by the Accused, as suggested by his mother, who obviously has a strong influence over him. It is to be seen that in my opinion the statements tendered by the Crown were made under circumstances which substantially negate the possibility that the child was untruthful or mistaken. APPLICATION TO THIS CASE The First Statement [94] The child's first complaint, i.e., "A. hit me" was made to his mother in the shower and in response to her question: "Oh my God, what happened?" It was made seconds after the injuries to his face and neck had occurred, and clearly while the child was under the influence of the shock and stress created by them. It was, in my opinion, made in circumstances of spontaneity or involvement in the event giving rise to the injuries. The statement therefore was admissible as a spontaneous declaration, as part of the res gestae. [95] I am also of the opinion that the child's second statement, that he did not know what happened, should also be admitted into evidence, although not for its truth. It was made shortly after the first statement, probably within a minute or two of it, and when the child was still under the influence of the traumatic events leading to and of his injuries. It was made to his mother after she had left the shower, and after she had had a discussion with the Accused as to what happened. At that point, according to her testimony, she asked the child whether he was sure that the Accused had hit him, and whether he was sure that he was not dreaming, and the child said that he did not know. [96] In my view this statement should be admitted into evidence, whether or not it is considered to be a part of a total spontaneous declaration. It is a factor which the jury must properly and fairly consider when considering the ultimate reliability and credibility to be given to the child's statement that the Accused had hit him. Logic and the fairness of the trial process also require that both statements be admitted, so as to enable the defence to pursue its position on inconsistent statements. And see Rockey. [97] I should observe here that if I am wrong about the first statement being admissible as a spontaneous declaration, then in my view it should be admitted into evidence as meeting the criterion of both necessity and reliability. In my view, on a balance of the probabilities, it was made under circumstances which substantially negate the possibility that the child was untruthful or mistaken, notwithstanding his mother's views. The Second Set of Statements to the Witness, A.S. [98] The witness asserts that the child made two statements to her the following day, while she was babysitting him at the home of a friend, who also has two young children. This was less than 24 hours after the first statements were made by the child, and in the absence of either parent. She says that during the day the child volunteered that his eye was hurting, and told her that the Accused had punched him in the face. Later on she asked the child where and how he got the marks on his throat or neck, and he said that the Accused "did this", demonstrating a one-hand choking motion on his neck. It is my view that both statements meet the indicia of necessity, as well as that of threshold reliability. The Third Set of Statements Made to the Childcare Worker [99] The third set of statements were made to the childcare worker early on the Friday morning. The first statement, the inconsistent statement, was made immediately after the mother had told the worker, in the presence of the child, that he had fallen off his bed onto his truck. When the worker asked what happened the child repeated what his mother had said. [100] It is difficult, but not necessary, to ascertain the exact words used by the child in the two statements tendered. However, both statements refer to the Accused coming into his room at night, and hitting or hurting him. In the second statement he refers to his mother "freaking out", probably referring to the point when she saw his injuries for the first time when she was in the shower. The story he relates is somewhat disjointed, which is not surprising in the circumstances and given his age at the material times. [101] In my opinion the two statements meet the test of necessity, particularly the second one. They add to the earlier statements, tying the events to his bedroom, to the Accused and to the night in question, and to the full version of the child's recollection, which is being sought. They also are relevant to the consistency issue. [102] I am also of the view that the child's statement, repeating what his mother had said, that he had fallen off the bed and struck his truck, should also be allowed into evidence, for the reasons given earlier when discussing the inconsistent statements generally, and when dealing with the child's second statement to his mother, when she suggested that he was dreaming. The Fourth Set of Statements to the Child's Father [103] It is to be recalled that the child made his first statement to the father either in the parking lot or as they were proceeding to the police station. The father said that he asked the child what had happened and that the answer was "Nothing, it was an accident." The father began to cry and then said to the child words to the effect: "This does not happen from an accident, what happened?" The child then said that "A. did it", and then demonstrated by placing both hands around his throat, a choking movement. [104] The child also made a further statement or statements to his father that weekend, which they spent together. After much persuading he told his father that he had been having a bad dream and was crying for his Mummy, but she did not come into his bedroom; the Accused then came into his bedroom and hit him in the face, and then tickled him. He demonstrated the tickling movement with his head back, by flicking his fingers roughly under his chin. He told his father that he ran out of the room. His mother was in the shower, so he ran into the shower. His mother came out and said "Oh my God, Oh my God a lot", and there was "also lots of blood". [105] I am of the opinion that the statements made to the father meet the criteria of necessity. They pull the picture together a bit, add to it and perhaps define what the child means by bad tickling. They are also consistent with earlier unprompted or spontaneous statements with regard to hitting and choking. They have additional probative value, there is no jury and any prejudicial effect of repetition or redundancy is not, in my view, a factor. Again, in my view, the child's initial statement to his father, that nothing happened and that it was an accident, should also be admitted into evidence for reasons I gave earlier with regard to other inconsistent statements. The Fifth Set of Statements Made By the Child to Constable Thompson [106] Constable Thompson interviewed the child in the presence of the father and the father's girlfriend, at about 9:30 a.m. on the Friday morning. They had just come from the daycare centre. The child was reluctant to tell the Officer anything, and on several occasions his response or answers to "Who, What, When, Where and Why" questions was "I don't know". [107] According to the police officer's notes, and testimony, the child eventually told him that a couple of days previously he had been sleeping in his bedroom, and having a bad dream. At that time the Accused came into his bedroom and grabbed him around the neck and that it hurt him. [108] In my view the statements made by the child to the Constable meet the criteria of necessity. While there was no reference to being hit or tickled by the Accused, the statement that the Accused had grabbed him around the neck and hurt him is consistent with his earlier statements of the Accused doing something bad to his neck. Again, his initial responses, i.e., "I don't know" should also be admitted into evidence, for reasons which I have already given in relation to earlier apparent inconsistent statements. The Inconsistent Statements Made by the Child to Dr. Erhardt [109] Dr. Erhardt examined the child's injuries in the absence of the father. He also asked the child how he injured his cheek, and whether anyone had hit him. The child told him that he had fallen on his toy truck, and that no one had hit him. The examination took place at 11:30 a.m. on the Friday morning. [110] It is my opinion that the statements to Dr. Erhardt should be admitted into evidence, although not for their truth. In my view they are in the same category as the other inconsistent statements, which should be before the jury on the inconsistency issue, and the question of ultimate reliability and credibility of the child's other statements in which he asserts that the Accused hit him in the face and choked him, and which the Crown tenders as substantive evidence. RELIABILITY The Submissions The Crown [111] Ms. Rail submitted that the out-of-Court statements of the child which were tendered met the reliability criteria and should be accepted into evidence. They are admissible in order to obtain an accurate and frank rendition of the child's account of the relevant events. His statements to the witness, A.S., and to his father essentially fill in the gaps and put some of his Court testimony into proper context. [112] Both statements to his mother, immediately after he was injured, are admissible as part of the res gestae. [113] The evidence is clear that the injuries to the child's face and neck occurred on the evening in question; while the mother was in the shower. The first statement to the witness, A.S., that the Accused had punched the child in the face was spontaneous. The second statement that the Accused "did this", with the demonstrated choking of the throat, was simply a response to how his neck injuries came about. Similarly, the statements to the daycare worker were simply an explanation of what had happened. [114] The child's statements to the father in the parking lot again were consistent with the statements made to the daycare worker. The child's demonstration of the injuries to his neck in effect define his bad tickling or violent tickling as meaning a form of choking. The medical evidence supports this. The child cannot be expected to be articulate when expressing himself. What the child told his father and the police officer was consistent with what he told his mother and the witness, A.S., prior to any prompting taking place. [115] At the daycare centre the child heard his mother telling the worker that he fell off his bed, face forward, into the truck. He simply repeated what his mother had said when he told the daycare worker that he had fallen off his bed and onto his truck. He also repeated the story to Dr. Erhardt, that is, that it was an accident, when he was away from his parents, and his story went unquestioned; unlike the statements to his father and the police officer. [116] His first two statements, to his mother and to the babysitter, respectively, were simply explanations of how his injuries occurred, without any prompting. The first time he even mentions the truck was after he had just heard about it from his mother. He simply repeated what she said, and in her presence, to the daycare worker. Almost immediately the mother leaves the child tells the daycare worker that the Accused came into his room at night, and either hit or hurt him. The father arrives and does not accept the accident story planted by the mother, and when pressed the child comes back to what he told his mother and the witness, A.S. earlier. [117] There was no prompting when the child told his mother and A.S. that he had been hit and strangled. His statements arose in the context of his explaining his injuries. If it can be said that the other statements, to the father and to the policeman, were prompted or induced, it is to be emphasised that those statements support the statements made to the mother and to A.S. and they had emerged naturally. When assessing the reliability of those statements the Court should have regard to their context, and compare them to the child's viva voce evidence and to his earlier complaints to his mother and to A.S. [118] The child said that he was asleep in his bed, that the Accused 'tickled' him, that it felt bad and that his mother was in the shower. Add to this the statements to his mother and to A.S., that the Accused hit him in the face and choked him, it is clear that the statements to the worker, father and police officer are all consistent with the same version. [119] It is true that he did say to the daycare worker that he fell on his truck. However, he was simply repeating what his mother had told the worker in his presence. About one hour later, he initially told his mother's story to his father, that it was an accident. He did the same thing with the police officer, but later told him that he was asleep in his bed when the Accused came in and grabbed him around the neck. By 11:30 a.m., when seen by Dr. Erhardt, he again told his mother's story, that he had fallen on his truck and that it was an accident. He was then, as before, simply repeating the story put into his mind by his mother. [120] The four year old never came up with the accident story; it was his mother who did so. His injuries are not consistent with accident, they are consistent with the statements that he was hit and choked. There were no prior inconsistent statements to the point where he explained to his mother and to A.S. what had happened. The subsequent inconsistent statement must be assessed in light of the fact that the mother, not the child, raises the question of accident. [121] As to the suggestion that the then almost four year old child had reason to fabricate his evidence, common sense says that he would want exclusive attention from his mother. But this cannot be equated to fabrication. His injuries were certainly not fabricated. They are entirely consistent with the manner of the assault described by the child. There is no doubt that a four year old child is quite suggestible. The fact that he repeated the "accident" story supports this. But his injuries match his own version. In all the circumstances, the statements to the mother and A.S. are clearly admissible. The statements to the daycare worker, the father and the police officer are ultimately consistent with what he told his mother and A.S. All of the evidence is consistent, save for the mother's accident speculation. However, accident was ruled out by the medical evidence. The Defence [122] Mr. Porter agreed that children are susceptible to suggestion; that it is easy for an interviewer to mislead children by leading or misleading questions, or by simply repeating questions. If questions are asked enough times the child is likely to pick up on the fact that he has not given the desired answer. Interviewers can mislead children by selectively reinforcing certain of their own beliefs. They can alter what the child attests to, and his very perception of events. [123] When the child told his mother, in the shower, that the Accused had hit him he was half asleep, confused, and did not know what he was talking about. On cross-examination the mother acknowledged that he could not tell her what had happened. This is not the statement of an operating mind, in light of the reference to the child sleep walking, and the nightmares that he had been having for some time. The mother told A.S. that the child had probably sleep walked or fallen into the dresser and down onto the toy truck. That was the mother's estimate of what had happened, and presumably she knows her child. [124] When the child told her in the shower that the Accused had hit him, the mother immediately discounted it. She questioned it. She did not even tell Sgt. Smith about it, until he raised the topic. She did not regard the statement as reliable. The child did not try and press his explanation that the Accused had hit him. The child's statement could easily be the result of his imagination, coupled with his jealousy of the Accused; which the mother appears to have believed. [125] As to the statements to A.S., that the Accused punched him in the face and choked him, A.S. could not remember how these accusations came up. She was asking the child questions because she did not accept the accidental injury theory. Even she says that she was asking questions about the neck injuries because she thought some other child had done it, or that it had occurred in a fall. She had already received the child's accusation that the Accused had punched him, and this confirmed her suspicions. She was not a disinterested or unbiased interviewer at that point. She simply tried to hide her bias to avoid the suggestion that she planted the idea of intentional injury in the child's mind. [126] She was given every opportunity to tell Sgt. Smith what the child had told her. She did not do so, but professed not to know anything about how the child was injured, save what the mother told her. It is true that she told Constable Thompson what the child had said, but when Sgt. Smith, who knew her, produced his tape recorder, she thought better of telling him what she told Constable Thompson the child had told her. At the very end of the interview she was asked by Sgt. Smith whether she knew anyone else who might know something about what had happened to the child. She mentioned the mother and the Accused, but not herself. When asked at trial why she gave those answers she simply said that she did not know. [127] She also did not tell Sgt. Smith about a conversation she said at trial that she had with the Accused, to the effect that he could not stand the child, avoided him and so on. Again, when asked why she did not tell Sgt. Smith this, she simply said that she did not know. It was submitted that she did not do so, for the same reason that she did not tell Sgt. Smith about what she now says the child told her, i.e., she thought better of it when she saw a person who knew her, and who could presumably judge her credibility, take out a tape recorder. [128] As to the statements made to the father, they were clearly solicited or prompted in circumstances which rendered them untrustworthy, unreliable. His trial evdience was inconsistent internally, and in relation to his preliminary inquiry evidence, in a number of areas, including what happened in the parking lot and on the way to the police station. The father, himself, was an unreliable witness. He tried without success to avoid the fact that he had the opportunity to influence the child's statements. [129] The child's statements to his father are unreliable because firstly the father immediately rejected the accident story. Secondly, the father began to cry and then the child began to cry. Thirdly, the emotional intensity and pressure to give a different answer would have been obvious even to the child. The statements solicited from the child on the weekend are equally suspect, and unreliable. [130] The memory of the childcare worker is also unreliable. The Court should pay more attention to her notes rather than to her recollection. She agreed that her memory was better at the time of the Preliminary Hearing than at the time of trial. Her report records that the child was reluctant to talk about matters to her. It does not record the child telling her that the Accused hit or hurt him. In this regard I observe that the report does refer to the child being hurt, when the Accused came into his room while he was sleeping. She did not recall what the child told her. At best it is her own interpretation of it says Counsel. [131] The child told Dr. Erhardt that he fell on his truck and that no one hit him. He was not intimidated by his surroundings and his statement emerged naturally. The answers were unprompted. [132] The interview with Constable Thompson was much longer than that conducted by Dr. Erhardt. As usual the child was reluctant to talk. He would say in response to questions that he did not know. The Constable continually asked question in order to keep the child's short attention span focused on them. There is no doubt that there was prodding. In the end the child told the officer that the Accused had grabbed him around the throat while he was in bed sleeping and having a bad dream. He did not mention being punched or hit. The interview was unrecorded except for that note. As in the case of A.S. and the care worker, we do not know whether leading or misleading questions were used, and the Constable was not an experienced police officer. [133] Dr. Colbourne did not go so far as to say that accidental injury was impossible. She agreed that it was possible, that the child could have fallen into his dresser striking his forehead on it, then his pyjama top snagged on some part of the dresser, perhaps a drawknob, which could have caused the bruising around the neck, and he then fell onto his Tonka truck. [134] Counsel concluded by emphasising that for any statement to be admissible there has to be a circumstantial probability of trustworthiness that substantially negates the child being untruthful. Here, in every case the child's statement with regard to the Accused is the result of imagination or suggestions by another person. [135] In reply Ms. Rail said that it was clear from the evidence that the child cannot recall what happened. The out-of-Court statements are necessary because the Court cannot expect to get the evidence from the child. The statements are not led to contradict the child's evidence about bad tickling; they are led to supplement it and put it into context. They are led because the child cannot give all of the story. They provide the Court with the complete picture of what occurred, i.e., he was in bed sleeping when the Accused came in and hit and choked him. The statements are consistent with what he said to his mother and to A.S. It was only later, during the weekend with his father, that he started referring to tickling. [136] The Court should look at the totality and substance of what the child said, save for the accident explanation, which the mother put in the child's mouth. What he said in each case was consistent, in the sense of relaying his version of what happened. He was in his bed sleeping, the Accused came in and hit and choked him. He hurt him in some fashion. It is emphasised that the medical evidence corroborates the child's evidence. The threshold of reliability has been met. DISCUSSION [137] It seems to me that some of Counsel's submissions, particularly those of Mr. Porter, address more the issue of ultimate reliability, rather than threshold reliability. The latter is the narrow or limited issue before me, and is simply a question of admissibility of evidence. The focus is on the child, the contents of his statement and the circumstances under which the statement was made. [138] When considering whether or not the criteria of threshold reliance has been met the Court is screening the hearsay evidence which is to be put before the jury to assist them in determining ultimate reliability, credibility and the weight of the evidence. Hearsay statements will not be admitted for their truth unless the circumstances surrounding the statements tend to support their reliability. The question to be answered is whether on a balance of probability the statement is likely to be reliable. The trial judge is not making a final determination about the actual reliability or truth or the weight to be given to the statement. Those determinations are for the jury. [139] The criterion has been stated in a number of cases. Lamer, C.J., put it this way in R. v. Smith, at pg.993: The criterion of "reliability" - or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness - is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, hearsay evidence may be said to be "reliable", i.e, a circumstantial guarantee of trustworthiness is established. (My emphasis). [140] He later revisited the question in R. v. Hawkins, where he states at pg.157: Reliability The requirement of reliability will be satisfied where the hearsay statement was made in circumstances which provide sufficient guarantees of its trustworthiness. In particular, the circumstances must counteract the traditional evidentary dangers associated with hearsay. As the court explained in B.(K.G.) at pg. 787: "The history of the common law exceptions to the hearsay rule suggest that for a hearsay statement to be received, there must be some other fact or circumstance which compensates for, or stands in the stead of the oath, presence and cross-examination." The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact. (My emphasis). [141] I turn now to the statements tendered in the case at Bar. I observe generally that they are the statements of a very young child, that they are closely related in time to each other and to the event of his injuries, and that they are compatible and have some similarities. [142] I have already stated my alternative position with regard to the child's initial spontaneous statement to his mother, that the Accused had hit him; that in my view the criteria of both necessity and reliability have been met. [143] I need not deal with the inconsistent statements made at the time that most of the other statements were made, as I have already dealt with them. They are admissible on the inconsistency issue, and as well as factors which the jury must consider when deciding the ultimate reliability of the child's evidence. I have, of course, considered each of them when considering the circumstances surrounding the making of the statement tendered by the Crown to which it is related. In this regard I have considered as well those which were made to Dr. Erhardt generally. [144] In my opinion the statements made to A.S. meet the criteria of reliability. They were made less than 24 hours after the incident, when matters were no doubt fresh in the four year old child's mind, and when his injuries, particularly his eye injury, was bothering him. Neither parent was present and he was at play. The statements, that the Accused had punched him in the face and had choked him were in effect, spontaneous. He was simply explaining what had happened to him. They certainly were not in answer to leading or prompting questions, but emerged naturally. And they are consistent with, and add to, the child's statement made to his mother the previous evening, that the Accused had hit him, the statement being in response to the question of what had happened to him [145] As I indicated earlier, I am not satisfied that the child was motivated, or even capable, of fabricating his statements, notwithstanding his asserted animosity towards the Accused. Nor do I think it probable that he was initially mistaken as to the involvement of the Accused in his serious and extensive injuries, as a result of the nightmares he had been experiencing, as suggested by his mother. The circumstances surrounding the making of the statements negate such possibilities. There is real evidence which support his statements, that is, the location, nature and extent of his injuries, in addition to the opinions of Dr. Colbourne, that the injuries to the child's face and neck were intentionally inflicted, and that it was highly unlikely that they could have been sustained in a fall. A circumstantial guarantee of the trustworthiness of the statements has been established. [146] My conclusion with regard to the statements made to the daycare worker are the same. The statements were made around 8:00 a.m. on the Friday morning, less than 24 hours from the time that he made his statements to the witness, A.S. They were made in the absence of any influence of his parents, and in the context of explaining what had happened to him. The evidence does not suggest that leading or prodding questions were asked of him. [147] Both statements add to the picture of the event, giving it further context. The first statement that he did not like the Accused because he came into his room at night and either hit or hurt him, (she could not recall which was said), places the Accused and the event in his bedroom. The second statement that he does not like the Accused because he is mean, and comes into his room and hits or hurts him, and his "Mummy freaked out", in addition to placing the event in his bedroom, ties the event to the mother freaking out in the showers when she first saw his face and neck. The child's version of the event is slowly evolving, at his pace, and in such detail as his young mind thinks sufficient. The circumstances of these statements to a stranger in the absence of his mother, as in the case of the witness A.S., in my view substantially negates the possibility that the child was untruthful or mistaken, and establishes a sufficient circumstantial guarantee of trustworthiness of the statements. [148] I have given careful consideration to the two statements made to the father, and the statement made to the police officer. Prompting from a parent is a very serious factor to be considered when assessing reliability. This is particularly so when the child's statement is nothing more than a repeat of what the parent told him, or told him to say. Ordinarily, without more, answers which are prompted or led by a parent will lower their reliability, and in most cases will result in them being excluded from evidence. The same will apply to answers obtained through prompting and leading questions of a police officer. [149] The first statement to the father was made less than an hour after the child's statements to the childcare worker; and less than an hour after the child's mother had told the childcare worker in his presence that it was an accident, and after he had repeated this to the childcare worker. The child was even more reluctant to talk to his father about what happened, than he was with the childcare worker. His statement that "A. did it", in response to a question about what happened to his face, and his demonstration of being choked with two hands, to some extent was prompted. They were made after the father expressly rejected the child's first answer, saying in effect that it could not have been an accident, and had begun to cry. [150] I cannot view in isolation the manner in which the statements to the father, and indeed those made to the police officer, came forth. I must consider all of the surrounding circumstances. This includes the earlier statements made, and the circumstances specific to them, the inconsistent statements made, the perhaps birth of the accident story at the time that the statements were made to the daycare worker, shortly before the first statements were made to the father, the child's trial evidence, particularly with regard to his perception of tickling, the real and medical evidence, the fact that the defence's position is that the child's statements are inconsistent, and so on. Having done so, I am not satisfied in the circumstances, that the threshold reliability for the statements made to the father has been tainted; for I remain of the opinion on a balance of the probabilities that the statements are likely reliable. [151] The first statements to the father were made shortly after those made to the daycare worker. They are consistent with the earlier spontaneous statements made to the mother and to the witness A.S., as well as those made to the daycare worker. They are also consistent with the physical and medical opinion evidence. [152] The second statement was made to the father, after much more prompting and leading questions, and ordinarily would not meet the threshold reliability criterion, and would not be admitted into evidence. It was that the child was having a bad dream, and crying for his Mummy who did not come. The Accused came into his room, hit him in the face and then tickled him. When relating this the child held his head back and flicked his finger violently under his chin demonstrating what he perceived as a form of tickling. The child also told him that he ran into the shower and that his mother said: "Oh my God" a number of times, and that there was "lots of blood". [153] The second statement adds to the previous statements, in that it contains more detail or context, and seemingly completes the child's version of what happened. It is, as I have noted, consistent with the earlier statements, and is corroborated by the physical evidence of the injuries, and the medical opinion evidence. I am satisfied, notwithstanding the prompting, as in the case of the earlier statements, that the statement and all the circumstances referred, give rise to what Chief Justice Lamer described in Hawkins as a satisfactory basis for the jury to evaluate the truth of the statement. Finally, and in any event, in my opinion all of the child's statements, those tendered by the Crown and those said to be inconsistent with the tendered statements, including those made to Dr. Erhardt, should go into evdience so as to assist the jury in considering the question of inconsistency, and finally that of the ultimate reliability and truth of the statements tendered. [154] What I have just said applies equally in my view to the statement made by the child to Constable Thompson. This includes, of course, not only the statement to the police officer which is tendered, but also the initial statements made by the child, when questioned by the officer, that he did not know what had happened. While it may be argued that the statement adds nothing to the child's version of what happened, I do not consider its use to be prejudicial, there being no jury. I have already expressed my view that in the circumstances of this case all of the statements made by the child should be placed before the jury. [155] In summary, for the reasons stated, I am of the opinion that the series of statements made by the child and tendered by the Crown as substantive evidence, and their surrounding circumstances, exhibit sufficient indicia of reliability, so as to provide the jury with a satisfactory basis for evaluating their ultimate reliability or truth. [156] The statements are closely related in time. Given the child's age, and the different circumstances specific to each statement, it is not surprising that his story unfolds in bits and pieces, or that more details are given on one occasion than on another; and there is little likelihood of fabrication or mistake. The earlier statements were in effect spontaneous, explanations of what had happened. The later statements, although prompted to one degree or another, are sufficiently similar to and consistent with the earlier statements so as to negate a determination that it is unlikely that they are reliable. All statements are supported by the physical evidence, that is the injuries themselves, as well as the medical opinion. The inconsistent statement relative to each statement tendered will be before the jury, and will be an important factor for its consideration. However, when the whole of the circumstances are considered at this time, they do not negate the likelihood of the reliability of the statement tendered to which they relate. [157] Finally, in my opinion, the circumstantial guarantee of trustworthiness of the statements tendered, has been established, not only on an individual basis, but also when they are considered together. [158] The out-of-Court statements of the child tendered by the Crown as substantive evidence are admitted into evidence. The inconsistent statements to which I have referred are also admitted into evidence, although not for the truth of their contents. "S.W. Hood, J." The Honourable Mr. Justice S.W. Hood Vancouver, B.C. March 24, 2000