R. v. Khan, (1988) 27 O.A.C. 142 (CA)

• Judge: Cory, Robins and McKinlay, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 25, 1988
• Jurisdiction: Ontario
• Citations: (1988), 27 O.A.C. 142 (CA)

R. v. Khan (1988), 27 O.A.C. 142 (CA)

MLB headnote and full text

Her Majesty the Queen (appellant) v. Abdullah Khan (respondent)

(No. 596/86)

Indexed As: R. v. Khan

Ontario Court of Appeal

Cory, Robins and McKinlay, JJ.A.

May 25, 1988.

Summary:

The accused was acquitted by a judge sitting alone of sexually assaulting a young child. The Crown appealed.

The Ontario Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial. The court held that the trial judge erred in (1) holding that the child was not competent to give unsworn testimony because he applied too stringent a test to determine her competency, and (2) in excluding from evidence a "spontaneous declaration" made by the child to her mother shortly after the alleged sexual assault.

Evidence - Topic 1712

Hearsay rule - Exceptions - Spontaneous exclamations - What constitute - The Ontario Court of Appeal discussed when spontaneous declarations may be admitted into evidence as an exception to the hearsay rule - The court in particular discussed this rule where a child of tender years makes a spontaneous declaration - See paragraphs 21 to 31.

Evidence - Topic 1712

Hearsay rule - Exceptions - Spontaneous exclamations - What constitute - A young child was allegedly sexually assaulted when left alone for a few minutes with her doctor - Fifteen minutes after the child and her mother left the doctor's office, the mother asked the child how her visit with the doctor was - The child told the mother that the doctor stuck his penis in her mouth - The Ontario Court of Appeal held that this was a spontaneous declaration which could be admissible as an exception to the hearsay rule - The court held that the trial judge erred in holding that the fifteen minute interval between the assault and the mother's inquiry about what happened at the office rendered the declaration unspontaneous - See paragraphs 21 to 31.

Evidence - Topic 1751

Hearsay rule - Exceptions - Children's statements - General - [See first Evidence - Topic 1712 above].

Evidence - Topic 5544

Witnesses - Competency - Child of tender years - The Ontario Court of Appeal set out the test to be applied to determine whether to admit the unsworn evidence of a child of tender years who does not understand the nature of an oath (Evidence Act, s. 16) - The court discussed how this test should have been applied respecting the evidence of a four year old sexual assault victim - See paragraphs 10 to 20.

Cases Noticed:

R. v. Hayes, [1977] 2 All E.R. 288 (C.A.), refd to. [para. 14].

R. v. Fletcher (1982), 1 C.C.C.(3d) 370, consd. [paras. 14, 17].

R. v. Bannerman (1966), 48 C.R. 110, affd. [1966] S.C.R. v, consd. paras. [15, 16].

Ratten v. R., [1972] A.C. 378, consd. [paras. 21, 22, 24].

R. v. Clark (1983), 7 C.C.C.(3d) 46, consd. [paras. 21, 24].

R. v. Torrie, [1967] 3 C.C.C. 303, refd to. [para. 33].

R. v. Rousseau (1985), 60 N.R. 278; 21 C.C.C.(3d) 1, refd to. [para. 34].

Wild v. The Queen (1970), 11 D.L.R.(3d) 58, refd to. [para. 34].

R. v. Schuldt (1985), 63 N.R. 241; 23 C.C.C.(3d) 225, refd to. [para. 36].

Statutes Noticed:

Canada Evidence Act - see Evidence Act.

Evidence Act, R.S.C. 1970, c. E-10, sect. 16 [para. 12].

Authors and Works Noticed:

McCormick on Evidence (3rd Ed. 1984), pp. 854 et seq. [para. 26]; 855, 856 [para. 31].

Wigmore on Evidence (3rd Ed., Chadbourn Rev. 1976), vol. 6, p. 195, paras. 1747 [para. 23]; 1750, 1751 [para. 26].

Counsel:

Kenneth L. Campbell, for the appellant;

Robert J. Carter, Q.C., and Larry O'Brien, for the respondent.

This appeal was heard on March 1 and 2, 1988, before Cory, Robins and McKinlay, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Robins, J.A., and released on May 25, 1988: