R. v. W.J.F., (1998) 168 Sask.R. 251 (CA)

• Judge: Wakeling, Lane and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 08, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 168 Sask.R. 251 (CA)

R. v. W.J.F. (1998), 168 Sask.R. 251 (CA);

    173 W.A.C. 251

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. SE.007

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

(No. 7361)

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

Saskatchewan Court of Appeal

Wakeling, Lane and Jackson, JJ.A.

September 3, 1998.

Summary:

The accused young offender was charged with sexually assaulting a child. At trial, the six year old complainant refused to answer any questions about the alleged incidents. The Crown sought to admit out of court statements of the complainant. The trial judge refused to admit the out of court statements on the basis that she had no evidence before her to determine why the complainant failed to testify and was there­fore unable to determine whether it was reasonably necessary to admit the out of court statements. The accused was acquitted. The Crown appealed.

The Saskatchewan Court of Appeal, Jack­son, J.A., dissenting, dismissed the appeal. 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.

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 re­fused to answer any ques­tions about the alleged incidents - The Crown sought to admit out of court state­ments of the com­plainant - The trial judge refused to admit the out of court state­ments on the basis that she had no evi­dence before her to determine why the complainant failed to testify and was there­fore unable to deter­mine whether it was reasonably necessary to admit the out of court statements - The accused was acquitted - The Crown appealed - The Saskatchewan Court of Appeal dismissed the appeal - 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 - See para­graphs 1 to 27.

Evidence - Topic 1751

Hearsay rule - Exceptions and exclusions - Children's statements - General - [See 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, refd to. [paras. 2, 28].

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; 94 D.L.R.(4th) 590; 15 C.R.(4th) 133, refd to. [paras. 8, 28].

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, refd to. [paras. 9, 28].

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. [paras. 11, 28].

R. v. J.P. (1992), 150 N.R. 379; 54 Q.A.C. 82; 74 C.C.C.(3d) 276 (C.A.), refd to. [para. 12].

Khan v. College of Physicians and Sur­geons (Ont.) (1992), 57 O.A.C. 115; 76 C.C.C.(3d) 10 (C.A.), refd to. [paras. 14, 39].

R. v. Aguilar (E.G.) (1992), 57 O.A.C. 152; 10 O.R.(3d) 266; 77 C.C.C.(3d) 462 (C.A.), refd to. [para. 14].

R. v. Charles (J.B.) (1997), 157 Sask.R. 73; 140 W.A.C. 73 (C.A.), refd to. [paras. 16, 54].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 28].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 42 C.R.(4th) 133; 101 C.C.C.(3d) 97; 128 D.L.R.(4th) 121; 42 C.R.(4th) 133, refd to. [para. 28].

R. v. C.L. (1997), 112 C.C.C.(3d) 472 (Que. C.A.), refd to. [para. 44].

Authors and Works Noticed:

Paciocco, David, The Evidence of Children: Testing the Rules Against What We Know (1996), 21 Queen's L.J. 345, generally [para. 46].

Counsel:

Daryl Rayner, for the appellant;

David W. Andrews, for the respondent.

This appeal was heard on June 8, 1998, before Wakeling, Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered on September 3, 1998, including the following opinions:

Lane, J.A. - see paragraphs 1 to 24;

Wakeling, J.A., concurring - see para­graphs 25 to 27;

Jackson, J.A., dissenting - see para­graphs 28 to 55.