R. v. W.J.F., (1999) 180 Sask.R. 161 (SCC)

• Judge: Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 15, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 180 Sask.R. 161 (SCC);[1999] 3 SCR 660;139 CCC (3d) 492;1999 CanLII 670 (SCC)

R. v. W.J.F. (1999), 180 Sask.R. 161 (SCC);

    205 W.A.C. 161

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] Sask.R. TBEd. OC.048

Her Majesty The Queen (appellant) v. W.J.F. (respondent)

(26854)

Indexed As: R. v. W.J.F.

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.

October 15, 1999.

Summary:

The accused was charged with sexually assaulting a child. At trial, the six year old complainant would not respond to any ques­tions about the alleged incidents. The Crown sought to admit out of court statements of the child. The trial judge refused to admit the out of court statements, holding that necessity was not established where the Crown had not presented any evidence to explain why the child could not testify. The accused was acquitted. The Crown appealed.

The Saskatchewan Court of Appeal, Jack­son, J.A., dissenting, dismissed the appeal (See 168 Sask.R. 251; 173 W.A.C. 251). The court held that the Crown was required to give some explanation as to the child's failure to testify sufficient to satisfy the trial judge that the out of court statements were necessary. The Crown appealed.

The Supreme Court of Canada, Lamer, C.J.C., dissenting, allowed the appeal and ordered a new trial. The court held that the trial judge erred in insisting on extrinsic evidence as to why the child was unrespon­sive. It was open to the trial judge to find necessity established on the basis of the proceedings at trial. The record offered ample evidence to support the conclusion that the child was emotionally traumatized to the point of being unable to testify.

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements (incl. videotaped state­ments) - [See first Criminal Law - Topic 5464 and both Evidence - Topic 1527 ].

Criminal Law - Topic 5464

Evidence and witnesses - Evidence of children - Out of court testimony (incl. videotaped statements) - In the context of considering the issue of the admissibility of the out of court statements of a child complainant who was unable to testify, the Supreme Court of Canada commented that "[j]udges who are uncertain may wish to adjourn the proceedings to see whether the child might be able to testify a little later, rather than summarily dismissing the appli­cation for alternate evidence and hence the charges ... an adjournment is something that should at least be considered in the interests of protecting both the interests of justice and the accused's rights" - See paragraph 35.

Criminal Law - Topic 5464

Evidence and witnesses - Evidence of children - Out of court testimony (incl. videotaped statements) - [See both Evi­dence - Topic 1527 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The accused was charged with sexually assaulting a child - At trial, the six year old complainant would not respond to any questions about the alleged incidents - The Crown sought to admit out of court statements of the child - The trial judge refused to admit the out of court statements, holding that neces­sity was not established where the Crown had not presented any evidence to explain why the child could not testify - The Supreme Court of Canada held that the trial judge erred in insisting on extrinsic evidence as to why the child was un­responsive - It was open to the trial judge to find necessity established on the basis of the proceedings at trial - The record offered ample evidence to support the conclusion that the child was emotionally traumatized to the point of being unable to testify.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Supreme Court of Canada stated that "[t]here is no absolute rule that evidence must be called on the issue of necessity. Where it is apparent from the circumstances before the trial judge that the child cannot give useful evidence, the judge may find out-of-court statements are 'necessary' in the context of the rule, absent evidence. This may be the case where the child is very young ... We may thus conclude that where it is self-evident that a child's evidence will not be effectively available, the judge may find necessity and, subject to reliability, admit the child's out-of-court statements. On the other hand, where it is not self-evident from the circumstances that direct evidence will be unavailable with reasonable efforts, the judge may require evidence of that fact" - See paragraphs 21 to 24.

Evidence - Topic 1751

Hearsay rule - Exceptions and exclusions - Children's statements - General - [See both Evidence - Topic 1527 ].

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, consd. [para. 1].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, consd. [para. 1].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129, consd. [para. 1].

R. v. J.P., [1993] 1 S.C.R. 469; 150 N.R. 378; 54 Q.A.C. 81, affing. (1992), 150 N.R. 379; 54 Q.A.C. 82; 74 C.C.C.(3d) 276 (C.A.), consd. [para. 21].

R. v. C.N. (1997), 195 A.R. 387 (Prov. Ct.), consd. [para. 22].

R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), affd. [1966] S.C.R. vii, refd to. [para. 26].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134; 110 C.C.C.(3d) 481, refd to. [para. 34].

R. v. Levogiannis, [1993] 4 S.C.R. 475; 160 N.R. 371; 67 O.A.C. 321; 85 C.C.C.(3d) 327, refd to. [para. 38].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 38].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 43].

R. v. Aguilar (E.G.) (1992), 57 O.A.C. 152; 10 O.R.(3d) 266 (C.A.), refd to. [para. 48].

Authors and Works Noticed:

American Psychological Association, Brief for Amicus Curiae in Maryland v. Craig (1990), 497 U.S. 836 [para. 38].

Badgley Reports - see Canada, Report of the Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children (R.F. Badgley Chair).

Bala, Nicholas, Double Victims: Child Sexual Abuse and the Criminal Justice System, in Tarnopolsky, W.S., Whitman, J., and Ouellette, M., Discrimination in the Law and the Administration of Jus­tice (1993), p. 233 [para. 38].

Bala, Nicholas and Bailey, Martha, Canada, Recognizing the Interests of Children (1992-93), 31 U. Louisville J. Fam. L. 283, p. 292 [para. 38].

Bulkley, Josephine and Sandt, Claire, A Judicial Primer on Child Sexual Abuse (1994), generally [para. 26]; pp. 37, 38 [para. 38]; 39, 40 [paras. 27, 51].

Canada, Report of the Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children (1984), generally [para. 38].

Castel, Jacqueline, The Use of Screens and Closed Circuit Television in the Prosecu­tion of Child Sexual Abuse Cases: Necessary Protection for Child or a Violation of the Rights of the Accused? (1992), 10 Can. J. Fam. L. 283, pp. 286 [para. 40]; 287 [para. 41].

Harvey, Wendy, and Edwards Dauns, Paulah, Sexual Offences Against Children and the Criminal Process (1993), generally [para. 26]; p. 184 [para. 51].

Marchese, Claudia L., Child Victims of Sexual Abuse: Balancing a Child's Trauma Against the Defendant's Con­frontation Rights - Coy v. Iowa (1990), 6 J. Contemp. Health L. & Poly'y 411, p. 415 [para. 39].

McLeer, Susan V., Post-Traumatic Stress Disorder in Sexually Abused Children, Journal of Child and Adolescent Psy­chiatry (1988), vol. 28, p. 650 [para. 27].

Ontario, Law Reform Commission, Report on Child Witnesses (1991), generally [para. 39]; p. 91 [para. 41].

Paciocco, David M., The Evidence of Children: Testing the Rules Against What We Know (1996), 21 Queen's L.J. 345, p. 392 [paras. 40, 41].

Roberts, Julian V., Sexual Assault Legisla­tion in Canada, An Evaluation: An Analysis of National Statistics (1990), pp. 9-12 [para. 38].

Saywitz, Karen, Children in Court: Prin­ciples of Child Development for Judicial Application, in Bulkey, Josephine, and Sandt, Claire, A Judicial Primer on Child Sexual Abuse (1994), pp. 37, 38 [para. 38]; 40 [para. 51].

Spencer, John R., and Flin, Rhona H., The Evidence of Children: The Law and the Psychology (1990), pp. 290 to 297 [para. 38].

Western Australia, Law Reform Commis­sion, Discussion Paper, Evidence of Children and Other Vulnerable Witnesses (1990), p. 11 [para. 39].

Wigmore, John Henry, Evidence in Trials at Common Law (3rd Ed. 1974), vol. 5, § 1420, generally [paras. 15, 16].

Counsel:

Daryl Rayner, for the appellant;

David W. Andrews, for the respondent.

Solicitors of Record:

Attorney General for Saskatchewan, Regina, Saskatchewan, for the appellant;

Andrews, McMahon, Campbell & Reis, Regina, Saskatchewan, for the respon­dent.

This appeal was heard on May 19, 1999, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official lan­guages on October 15, 1999, and the follow­ing opinions were filed:

McLachlin, J. (Gonthier, Bastarache and Binnie, JJ., concurring) - see para­graphs 1 to 36;

L'Heureux-Dubé, J. - see paragraphs 37 to 41;

Lamer, C.J.C., dissenting - see para­graphs 42 to 52.

Cory, J., took no part in the judgment.