*Voir le protocol ici.
Le juge en chef — La Cour est d’avis, à la majorité, d’accueillir l’appel, et ce, essentiellement pour les motifs dissidents exposés par le juge d’appel MacPherson. Le juge Rowe rejetterait l’appel, principalement pour les motifs des juges majoritaires de la Cour d’appel. En conséquence, l’appel est accueilli et la déclaration de culpabilité est rétablie.
R. v. S.S., 2022 ONCA 305, j. MacPherson
The absence of contemporaneous cross-examination is serious, but the fact that the statement was video recorded, that the complainant promised to tell the truth, and that she corrected the officer on significant details all buttress the statement’s procedural reliability
[87] At the trial, Dr. Louise Sas was qualified to testify as an expert in child behavioural and clinical psychology, child memory, behaviours of victims of child sexual abuse, and child witnesses. She estimated that she had been qualified as an expert in Ontario courts about two hundred times.
[T]he interview was done in accordance with a protocol that was discussed in some detail by Dr. Sas, at page six of her report and in her evidence before me. I will not review those points except to note that there are nine separate points.It was Dr. Sas’s opinion that the interview was conducted in accordance with the protocol and the nine points that are listed in her report, and about which she testified were adequately established.
[89] To this I would simply add, having viewed the interview, that this conclusion is entirely reasonable. In the context of an interview of a seven year-old girl about possible criminal sexual activity by a close relative, Officer Cunnington’s structure and conduct of the interview were very impressive indeed.
[93] Further, the trial judge’s reasons show that the statement and its context convincingly address procedural and substantive reliability. Procedural reliability centres on “whether the trier of fact will be in a position to rationally evaluate the evidence”: R. v. Khelawon, 2006 SCC 57, at para. 76. The trial judge noted several factors enabling a rational evaluation, including:
As observed by Dr. Sas, the interview was conducted in accordance with a well-recognized protocol. It was conducted in a relaxed atmosphere. The interviewee displayed no symptoms of concern at being interviewed. For the most part, open-ended questions were used.
[94] Moreover, at the beginning of the interview the complainant promised to tell the truth. Section 16.1(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5, requires that a person under fourteen make such a promise instead of an oath before giving evidence. The complainant was seven years-old at the time of her police statement.
[95] Officer Cunnington also told the complainant to correct him if he made a mistake. Dr. Sas’s report says she did so on three occasions. Most notably, when describing the assault, the complainant said she was lying down and the appellant was standing. The officer repeated that the appellant was standing on the bed, but the complainant corrected him to say he was standing on the floor.
[96] In my view, all these indicia contribute to put the trier of fact in a position to rationally evaluate the evidence. The absence of contemporaneous cross-examination is serious, but the fact that the statement was video recorded, that the complainant promised to tell the truth, and that she corrected the officer on significant details all buttress the statement’s procedural reliability.
In this case, the complainant gave a detailed description of sexual acts well beyond her development stage. She described her uncle masturbating (she called it “playing with himself”), she showed the officer how long the appellant’s penis was using her hands, she demonstrated how he pushed his fingers on her vagina, and described her uncle ejaculating onto her stomach: Dr. Sas’s Report, at p. 9. In my view, the inherent trustworthiness of her statement is the only likely explanation for her vivid descriptions.
[97] Substantive reliability describes a statement so reliable that it is unlikely to change under cross-examination: R. v. Bradshaw, 2017 SCC 35, at para. 31, or where the only likely explanation is that the statement is true: R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764, at para. 40.
[98] Here, the inherent trustworthiness of the statement emerges from the fact that its truth explains how the complainant was able to give such detailed descriptions of these acts. The same was true in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, where McLachlin J. (as she then was) relied on necessity and reliability to find that the trial judge could receive a three year-old’s statement to her mother that she had been sexually assaulted by her doctor. Citing this court’s decision in Khan, she noted that “young children…are unlikely to use their reflective powers to concoct a deliberate untruth, and particularly one about a sexual act which in all probability is beyond their ken.” As such, “the evidence of a child of tender years on such matters may bear its own special stamp of reliability”: at p. 542.
[99] In this case, the complainant gave a detailed description of sexual acts well beyond her development stage. She described her uncle masturbating (she called it “playing with himself”), she showed the officer how long the appellant’s penis was using her hands, she demonstrated how he pushed his fingers on her vagina, and described her uncle ejaculating onto her stomach: Dr. Sas’s Report, at p. 9. In my view, the inherent trustworthiness of her statement is the only likely explanation for her vivid descriptions.
