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Evidence - Hearsay - Principled Exception (6). R. v. J.F.
In R. v. J.F. (Ont CA, 2026) the Ontario Court of Appeal considers the principled hearsay issues of 'necessity and reliability':[9] The trial judge articulated and applied the correct test for the admission of hearsay pursuant to R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at pp. 545-546. He considered whether the receipt of the hearsay statements as evidence at trial was reasonably necessary, in particular whether they ought to be admitted either as a result of the complainant’s inability or unwillingness to provide meaningful evidence, or the possibility of trauma if she were to testify. He also considered the threshold reliability of the hearsay evidence.
[10] While the standard of review for the admissibility of hearsay evidence is correctness, “[a]bsent a demonstrated error, decisions regarding whether the circumstances support threshold reliability and necessity, and the balance between probative value and prejudicial effect, are owed deference”: R. v. Bridgman, 2017 ONCA 940, 138 O.R. (3d) 721, at paras. 37-38.
[11] The appellant challenges the trial judge’s findings on both the necessity of the hearsay evidence and its threshold reliability.
[12] With respect to necessity, the trial judge considered a video of a police interview with the complainant conducted several days after her initial disclosure in August 2018, and a video of her meeting with Crown counsel in December 2019. Based on the age of this evidence, the trial judge was not satisfied that it demonstrated that the complainant was unwilling or incapable of testifying at trial. The trial judge concluded however that, if the complainant were to testify in court about the events involving the appellant, there was a real possibility that she would suffer trauma.
[13] The appellant contends that because there was no evidence of an assessment of the complainant within two and a half years of the trial, there was no reasonable basis for the trial judge to draw this conclusion.
[14] We disagree. The trial judge considered whether there was evidence “that an already traumatized child might be further traumatized by being questioned by strange [people] in a strange situation” and he noted that the court was not required to wait for proof of actual harm: R. v. Rockey, 1996 CanLII 151 (SCC), [1996] 3 S.C.R. 829, at para. 28. He considered the complainant’s conduct during the videotaped police interviews that showed symptoms consistent with trauma; her mother’s evidence about a setback she had suffered following her meeting with the Crown, including a recurrence of the bed-wetting and nightmares that occurred in the months after the initial disclosure; and the expert opinion evidence of a social worker who had previously worked with the complainant regarding the likely effect on the complainant if she were to testify. The trial judge did not accept defence counsel’s assertion that the social worker’s evidence should be given little weight because of bias; however, he concluded that, even in the absence of her opinion, and despite the dated nature of the remaining evidence, it was entirely possible that, if the complainant testified and relived the incident involving the appellant, she might suffer a detrimental setback.
[15] Contrary to the appellant’s submissions, there was a firm evidentiary foundation for the trial judge’s finding that the hearsay evidence was necessary. While the trial judge was not prepared to infer the complainant’s unwillingness or inability to testify at trial from the evidence of her conduct at ages four and six, he reasonably inferred that there was a real possibility that she would be traumatized if she were to testify. The trial judge was entitled to accept the evidence of the mother and social worker, confirming that the complainant had suffered trauma after the initial disclosure, that she had improved over time, but then suffered a setback after meeting with Crown counsel in December 2019, and to infer from that evidence that there was a possibility of trauma if the complainant testified at trial.
[16] The appellant also asserts that the trial judge erred in concluding that the hearsay evidence met the threshold reliability requirement. We disagree. The trial judge reasonably concluded that the reliability of the evidence was enhanced by the audio recordings, which also assisted the defence to identify and then challenge areas of potential concern in cross-examination of the mother. He noted that, although there were some leading questions, the complainants’ initial disclosure and the central elements of her account emerged naturally and without prompting; that the context of the complainant’s loving relationship with the appellant provided no motive to fabricate; and that the complainant, due to her age, could not be expected to have had knowledge of the sexual acts detailed unless her statements were truthful and accurate. Finally, the presence of corroborating evidence, including the redness on the inside of the complainant’s vagina and the presence of the appellant’s semen on her underwear provided compelling support for the complainant’s account. . R. v. Oloko
In R. v. Oloko (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here brought against a conviction "of one count of sexual assault. The complainant was a 47-year-old woman with Down syndrome who communicates through words and gestures, but not full sentences. At the time of the alleged sexual assault, the complainant lived in a group home where the appellant worked occasional night shifts."
Here the court considered an issue of the principled hearsay exception (necessity and reliability), and the requirements of a voir dire where the complainant was communication-handicapped:[2] Rather than calling the complainant as a witness at trial, the Crown brought an application to admit hearsay statements the complainant made to three personal support workers following the alleged sexual assault. The trial judge held a voir dire. The Crown’s evidence on the voir dire came from the three personal support workers and from two videos of the complainant speaking to the police. The trial judge ruled that the complainant’s hearsay evidence was necessary and reliable. She made this ruling without hearing from the complainant herself and without any expert evidence that compelling the complainant to testify would be traumatic.
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[5] I would allow the appeal and order a new trial. I agree with the appellant that the trial judge erred in finding that the hearsay evidence was necessary without having the complainant attend on the voir dire and without expert evidence on whether testifying would cause trauma to the complainant.
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[24] I agree with the appellant that the trial judge erred in concluding that the hearsay evidence was necessary without the benefit of the complainant’s participation on the voir dire. In other words, the process followed by the trial judge on the voir dire was flawed. Had she followed the proper process, it may ultimately have been open to her to find that the hearsay evidence was necessary. But, in this case, it was not sufficient to rely on the evidence of the three personal support workers and the videos to reach this conclusion.
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(1) Standard of review
[27] The admissibility of hearsay evidence is a question of law, to be reviewed on a standard of correctness. However, an appellate court must accord deference to the findings of fact underlying the admissibility ruling. Further, trial judges are “well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them”. Therefore, absent an error in principle, a trial judge’s determination of threshold reliability is entitled to deference: R. v. Charles, 2024 SCC 29, at para. 41.
(2) General principles regarding the admissibility of hearsay evidence
[28] Hearsay evidence is presumptively inadmissible: Charles, at para. 43. In R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 19, the Supreme Court explained the importance of in-court testimony to the truth-seeking process:The truth-seeking process of a trial is predicated on the presentation of evidence in court. Litigants make their case by presenting real evidence and viva voce testimony to the trier of fact. In court, witnesses give testimony under oath or solemn affirmation. The trier of fact directly observes the real evidence and hears the testimony, so there is no concern that the evidence was recorded inaccurately. This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value. To determine whether a witness is telling the truth, the trier of fact can observe the witness’s demeanor and assess whether the testimony withstands testing through cross-examination. [Citations omitted.] [29] Despite the important role and primacy of in-court testimony, hearsay may exceptionally be admitted into evidence under the principled exception to the hearsay rule. To be admissible, the hearsay evidence must meet the twin requirements of necessity and threshold reliability: Charles, at para. 45. In the context of criminal proceedings, the court must conduct a voir dire to determine whether the hearsay evidence meets these requirements: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47. The party who seeks to adduce hearsay evidence bears the onus of demonstrating both requirements on a balance of probabilities: Bradshaw, at para. 23, citing Khelawon, at para. 47.
[30] Necessity arises where relevant direct evidence is not available. In R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 934, the Supreme Court observed that “the categories of necessity are not closed” and identified two circumstances where necessity may arise: (1) where the “person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross-examination]”; and (2) the “assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources”.
[31] Threshold reliability is established if a party demonstrates the statement’s procedural or substantive reliability. Procedural reliability depends on the trier of fact’s ability “to rationally evaluate the truth and accuracy of the hearsay statement”: Bradshaw, at para. 28. There must be “adequate substitutes” for the traditional procedural safeguards around in-court testimony to enable an assessment of the truth and accuracy of the statement to be undertaken: Charles, at para. 46. Usually, procedural reliability requires “[s]ome form of cross-examination of the declarant”: Charles, at para. 46. Substantive reliability, on the other hand, means the statement is inherently trustworthy given the circumstances it was made in and in light of the other evidence: Charles, at para. 47. The standard for substantive reliability is high, as it requires the trial judge to find that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at para. 31, citing Khelawon, at para. 49.
(3) The trial judge’s assessment of necessity
[32] The appellant’s challenge to the trial judge’s finding that the hearsay evidence was necessary focuses on the conduct of the voir dire. Specifically, the appellant argues that it was not appropriate for the trial judge to decide that the evidence was necessary without the direct participation of the complainant. As I explain below, I agree with the appellant that the trial judge erred in finding that she could and should decide the issue of necessity without the benefit of hearing from the complainant directly.
[33] In R. v. Parrott, 2001 SCC 3 (CanLII), 2001 1 SCC 3, [2001] 1 S.C.R. 178, the Supreme Court considered the admission of hearsay evidence from a complainant who had Down syndrome. In that case, the respondent was alleged to have kidnapped and sexually assaulted the complainant. After the complainant was found, she pointed to her injuries and made various statements to the police and medical practitioners, including that “Man did it, bad man, man in car”. On a voir dire, the Crown simultaneously sought a finding that the complainant did not have the capacity to testify and to have the hearsay statements the complainant made to the police and health care practitioners admitted for the truth of their contents. There was conflicting expert evidence on the issue of whether the complainant was capable of testifying in court. The majority of the Supreme Court held that the trial judge erred in finding that the hearsay evidence was necessary without the benefit of the complainant’s participation in the voir dire. The court based this conclusion on several considerations which are relevant in this case.
[34] Trial judges should base their voir dire decisions on direct observations of the complainant, absent exceptional circumstances such as evidence that calling the complainant to testify would cause trauma: at paras. 72, 79. The court should not excuse the complainant by inferring a risk of trauma but, instead, receive expert evidence on that point: at para. 79; see e.g., R. v. R.R. (2001), 2001 CanLII 27934 (ON CA), 159 C.C.C. (3d) 11 (Ont. C.A.), at paras. 36, 40, aff’d 2003 SCC 4, [2003] 1 S.C.R. 37; R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1 (C.A.), at paras. 86, 94, leave to appeal refused, [2004] S.C.C.A. No. 225.
[35] The court stated, at para. 73, that “[c]ompassion for the complainant must be balanced against fairness to the [accused].” Therefore, the decision regarding whether it is necessary to receive hearsay evidence should not be driven solely by compassion for the complainant.
[36] As the court noted at para. 72, judges have various tools at their disposal to help put witnesses at ease and to avoid embarrassing them:The complainant in this case could have been examined before the trial judge in a format that would have attempted to put her at ease. The trial judge could have ensured that nothing, including questions put to her by opposing counsel, would be used to demean or embarrass her. It is possible that, as anticipated by Dr. Gillespie, the complainant might have been incoherent or otherwise unable to communicate whatever she recalled of the events in question. On the other hand, it is also possible that she might, as suggested by Dr. Morley, have been able to give “some account of what happened to her”. In the absence of any suggestion of potential trauma or other exceptional circumstances, I think the [accused] was entitled to have this issue determined on the basis of the evidence of the complainant rather than on the conflicting opinions, however learned, of her various doctors. [37] Only in exceptional cases would it be appropriate for a judge not to hear from a witness directly before deciding that hearsay evidence is necessary. As the court explained, at para. 77:In my view, if the witness is physically available and there is no suggestion that he or she would suffer trauma by attempting to give evidence, that evidence should generally not be pre-empted by hearsay unless the trial judge has first had an opportunity to hear the potential witness and form his or her own opinion as to testimonial competence. I say generally because there may arise exceptional circumstances where a witness is available and not called and the out-of-court statements may be nevertheless admitted … The point is that there are no circumstances put in evidence here that would justify such an exceptional procedure. [Emphasis in original.] [38] Finally, at para. 80, the Supreme Court emphasized that there should be no presumption that adults with cognitive disabilities are not capable of testifying and that their hearsay evidence is thereby presumptively necessary:[T]he Court should not be quick to leap to the assumption that a person with mental disabilities is not competent to give useful testimony. Trauma should not be presumed, not only because such a presumption would deprive the accused of the ability to observe and cross-examine the witness, but also because stereotypical assumptions about persons with disabilities should be avoided… Persons with disabilities should not be underestimated. [Emphasis added.] ....
[47] As the Supreme Court explained in Parrott, at para. 73, in the context of that case, the appellant faces a serious charge with serious consequences. He was confronted with out-of-court statements from the complainant taken in his absence and on which he did not have an opportunity to cross-examine. The court must be very cautious before truncating the appellant’s right to confront the evidence in court through direct observation and cross-examination.
[48] In Parrott, at para. 77, the Supreme Court recognized that there may be exceptional circumstances aside from a risk of trauma where a trial judge could decide the issue of necessity without the benefit of the complainant’s participation on a voir dire. The Supreme Court was not prepared to “close the door to this possibility”, but it did not elaborate on what those other exceptional circumstances could be. Necessarily, each case must be decided on its own facts. However, at the very least, a trial judge who decides the issue of necessity without hearing directly from the complainant should provide a compelling rationale to “justify such an exceptional procedure”: Parrott, at para. 77. For example, it may be evident in some cases that the complainant is unable to understand questions or communicate at all.
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[56] .... when assessing substantive reliability to establish threshold reliability, the case law allows for consideration of factors such as timing, demeanour, personality, the absence of any reason to fabricate and the likelihood of the declarant’s knowledge of the event apart from its occurrence: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at p. 547; R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 54.
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(5) Conclusion on the issue of the hearsay evidence
[60] It was an error for the trial judge to find that the hearsay evidence was necessary without the benefit of hearing directly from the complainant. While I agree with the trial judge’s conclusion on the issue of threshold reliability, a new trial is nevertheless required.
[61] This is an unfortunate outcome. It may well turn out that a trial judge decides that the hearsay evidence is necessary after hearing directly from the complainant. However, in balancing compassion for the complainant against fairness to the appellant, I am not persuaded that this was one of those exceptional cases where it was appropriate for the trial judge to find that the hearsay evidence was necessary without the complainant’s participation on the voir dire.
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