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The court, la cour. Thank you. Please be seated. In the case of His Majesty the King versus SS, for the appellant, His Majesty the King, Michael S. Dunn. For the respondent, SS Jeff Marshman and Ingrid Grant. For the intervener, Criminal Lawyers Association of Ontario, Maya Martin and Nicola Langille. For the intervener, Criminal Trial Lawyers Association of Ontario, William J. Van Engen, Deborah R. Hatch. Please note that there is a publication ban in this matter, pursuant to section 486.4 of the Criminal Code. Mr. Dunn.
Thank you. Chief Justice, justices, this case turned on the evidence of a seven, almost eight-year-old girl in a police interview. That interview occurred the same day that she spontaneously disclosed that her uncle had abused her to a CAS worker who visited her at school. The trial judge admitted that evidence under the principled approach to hearsay. And this appeal is entirely about the threshold reliability analysis conducted by the trial judge. In my submission, the trial judge applied the correct legal principles and committed no error. He understood the test, understood the relevant factors and cases from this court, and understood the key danger of hearsay, which is its untestability, and looked for adequate substitutes in the circumstances. I intend to proceed as follows. First, I will start with the trial judge's analysis. In my submission, a review of those reasons, having regard to the positions of the parties, shows the trial judge understood the test and turned his mind to the right questions, and properly looked for adequate substitutes for contemporaneous cross-examination in all the circumstances of this case. Second, I will respond to each of the issues that the majority of the Court of Appeal identified as an error in principle. I say the dissenting judge was right to find no error.
Now you say that by implication, I think you're saying that in the absence of an error in principle there is to be no appellate intervention, but is that the standard or is this a question of law?
Justice Rowe, it's common ground between the parties that the admission of evidence is a question of law subject to correctness, but also common ground in my submission that the factual findings underlying the trial judge's decision to admit that evidence is entitled to deference. And this court has also held that trial judges are required to weigh different factors in assessing whether threshold reliability is established, and that weighing of factors is also due deference. So I do say that absent an error in principle.
I'm going to stop you there because there are three components to what you've dealt with. One is, has the trial judge identified the correct legal test? And that clearly is a question of law and reviewable on the standard of correctness. What are the factual findings of the trial judge? And I would say like all factual findings, there's a high degree of deference, probably a possible overriding error. And then the third one is the application of the legal test to the facts as found, which in general terms in criminal law is treated as a question of law and subject to review for correctness, which is in marked distinction to civil matters where under Hausmann and Nicolaus, and it's a different test. And I guess I don't want to take up too much of your time, but clarity as to the relevant standard of review and which of the three components, the statement of the legal test, the findings of fact, and the application of the legal test to the facts is found. I think there's a need to be clear as to which stage you're dealing with, and perhaps what is a bit of a different legal yardstick which applies to each.
I think, Justice Rowe, I would go back to this court's decision in Uva Raja. It's the 2013 decision. I don't think there's been any movement from that in the subsequent jurisprudence. And what this court said is, it's in paragraph 31, the admissibility of evidence is a question of law. And then I think we agree the factual findings that go into that determination entitled to deference, that's common ground, I think, that this court goes on to say this. And this is what I think is the key principle here. The trial judge is well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them. Thus, absent an error in principle, trial judges' determination of threshold reliability is entitled to deference. That's what I say the test is.
Sir Don, you said at the beginning in your opening statement that the trial judge understood the test applicable. We know that the decision of the trial judge was released before our court released Bradshaw. Do you think that Bradshaw has changed anything in the applicable test for the threshold reliability?
Justice Cote, not for the purposes of this appeal. Bradshaw obviously restates the test, but relies on Kelleon, which was the prevailing jurisprudence at the time. And of course, it says lots of things about corroboration. But corroboration did not play a major role in this case. So I say for the purposes of this case, and you're quite correct that this decision, the trial judge's decision, was released just before Bradshaw came out. For the purposes of this case, I say, no, Bradshaw didn't change anything in the test.
but you're here if i could follow up on justice kote's question i'd had trouble understanding paragraph fifty one of your fact them where you seem to have you say on the one hand you say as justice kote noted that that uh... that bradshaw was released by the court in a way that the judge didn't have access to it you say the trial judge therefore did not have the benefit of this court's most recent pronouncement almost to excuse him but that's got to be understood in light of what the majority the court of appeals complaining about is your point that the majority was mistaken in faulting the trial judge for not following the direction that to specifically identify here say dangers as we brought your gave a very plain articulation to what prior to bradshaw might have been more diffuse in the law what exactly are you who can get a paragraph fifty one
I do say that. I don't think that Bradshaw, I say that Bradshaw didn't change the underlying principles and I don't think Bradshaw purported to do so, but it does state very clearly about how trial judges should articulate the particular hearsay danger and the specific strategies. Now I say in the context of this case, the trial judge committed no error whether you look at it under Bradshaw or under the law at the time that the trial judge was considering it, because as I say in my fact, and I intend to come to, that the real hearsay danger in this case was sincerity and everybody knew that that's what the danger was. So I do say the court of appeal was wrong to fault him for that to the extent that it does, but of course I think it's only fair to the trial judge to note that the trial judge didn't have the benefit of Bradshaw when making this decision.
And may I just seek a clarification? The Crown has, I guess, taken the position that if this evidence is not admissible, then there's really no case and an acquittal is the appropriate remedy. But I guess what I'm asking is on the other side, is this only a case about threshold reliability and what's the position if it is admitted? I don't see anybody questioning whether or not, if admitted, the evidence is sufficient to uphold the conviction.
Justice Martin, certainly that's the Crown's position that if the evidence is admitted, the trial judge committed no other error. The reasons of the court of appeal don't really point to any other error and that the conviction should be restored. Let me then jump ahead to the question of the trial judge's threshold reliability analysis. I've put to you already that the trial judge understood the test. I don't need to spend any more time on that. In my submission, this case is primarily a case about substantive reliability, but I do not want to lose sight of the fact of the procedural reliability elements that are present here. Merci.
I put it to you squarely, sir, that this case is absolutely centrally about procedural reliability. And it's really about whether someone can be subject to reading the testimony of a complainant without any possibility, any meaningful possibility of cross-examination. And that is procedural reliability, is it not?
That is procedural reliability, Justice Rowan. I say there are elements of procedural reliability present here, but there is also substantive reliability, which I say comes from the content of the statement itself. Let me say the procedural reliability elements that I say are present. Of course, the trial judge had the benefit of the evidence of Dr. Sasse, which was primarily introduced for the purpose of showing necessity, but her evidence was also about the interview process used and what the effect of that interview process was. So the trial judge in my submission was entitled to refer.
But this divisor of saying this interview was properly conducted, so the Crown doesn't put the complainant in the witness box. The Crown says, I want to have a voir dire, to have the videotaped statement put in under the principle exception of the hearsay rule. My first witness is a psychologist who will say that the complainant will be traumatized if they have to testify. Therefore they're not going to testify. And the second witness is someone who says this is a pretty good interview technique. Boom. In goes the hearsay evidence and the accused never gets a chance to cross-examine. And why would the Crown ever put a complainant in the witness box again if this mechanism works?
In my submission, this case wasn't as simple as that, Justice Rowe. The evidence from Dr. Sasse was that that E.B. would be traumatized by being put back in the witness box. She had been put in the witness box at the preliminary inquiry, and the evidence from Dr. Sasse would that she would be traumatized by having to do so again. I say that this is not does not stand alone on the procedural guarantees, which are not limited to cross-examination, of course. This court has identified, for example, the fact of videotaping. The statement was videotaped. The type of questions that were asked, the ability to assess the demeanor of E.B. and the officer, the promise to tell the truth. And I can come back to that. E.B. demonstrating that she understands the truth, the willingness to correct the officer, and the ability to do so, the use of open-ended questions. All of those were valid bases for the trial judge to rely on in his threshold reliability analysis. In my submission, the dissenting judge in the Court of Appeal was correct to draw the court's attention to it. Let me, though, spend a bit of time on the substantive reliability analysis in this case, because here the most important factor was the level of detail and age-inappropriate knowledge displayed by E.B. And the trial judge fairly summarizes some of this evidence in the reasons, and you see that in paragraphs 26 through 42. It's in my condensed book at pages 12 to 14. So when the trial judge refers later in paragraph 110 to the detailed information, this is what the trial judge is referring to. But, of course, the actual evidence was the video accompanied by the transcript. And what you see from that video with that transcript is that E.B. provides very detailed information about important aspects of the assault, and any other source of this information is simply implausible. And I say there's seven, and I will give them to you, seven areas where E.B. really provides a lot of information. The first one is how the assault starts. Her uncle picks her up from school, takes her home, takes off her boots, tells her to take off her pants. The second details about where the assault occurs, where he is during the assault, where she is, identifies it on a pull-out couch. She demonstrates on the video she's lying down, he is standing in front of her, and of course this is an area where she corrects the officer. Third, the details of the assault demonstrates with her hands the acts, the action, excuse me, of masturbation. Says where he touched her. Says he touched her with his fingers on her vagina, including by demonstrating poking towards her vagina with her own hand. Identifies that he put his penis in her vagina. Fourth, what she saw and what she smelled. She describes a penis and demonstrates with her hands, again on the video, showing what would seem to be an erect penis. And she says it has a hole in the middle. She says plain gross milk comes out, that it landed on her stomach. Her nose told her that it smelled gross. Fifth, and this was emphasized by Dr. Sass as important, how she felt, what she was thinking and feeling. And her mind is telling her, say it to mommy when uncle's not there. Her mind is saying tell her, tell her, referring again to her mother. Sixth, the dialogue, what her uncle said to her and what she said. He told her to take off her clothes, take off your underwear. She says why? Just do it, he says. He always says, do you like it? She does not, but says I can't say no, I have to say yes. He tells her, don't tell your mom. Seventh, how the assault ends. Her mom knocks on the door. Mom came in and said, and again, dialogue, why are you here in the living room with her? Uncle says, I don't know, I just wanted to sit with her. Taken together, this level of detail is highly supportive of the reliability of the statement. As the dissenting judge found, only likely explanation for this level of detail is the truth. Now, I have to, I have to, That's embarrassing, that's Daisies but I'll leave 2008 and 2009.
But I have to put to you that while it's been almost 21 years since I've been a trial judge, I remember the testimony of complainants. And I remember saying to myself and sometimes looking over the jury, wow, this guy's going down. He's guilty. I mean, that was terrific testimony. And then there's a cross-examination. And sometimes things change quite drastically. So if the complainant's testimony looks pretty good, is that the end of the story?
It's not the end of the story and the trial judge doesn't say it's the end of the story more importantly The in my submission the trial judge and let me deal with this question of cross-examination Because that's really the first of the three areas where I say the Court of Appeal Identified errors. The first is is this question of Did the trial judge downplay the importance of cross-examination? I say he did not the second question is how could he be have acquired this age inappropriate information and Third how is the trial judge appropriately deal with motive? on the question of How this witness appeared and performed etc It's important not to lose sight of the fact that this is a seven almost eight seven year old girl Who's giving this evidence? So the trial judge quite appropriately takes that into account in evaluating her evidence Dealing with the question of cross-examination In my submission what the trial judge understood was the importance of cross-examination But that also in some cases cross-examination would not be available and that the basic task in This case was to determine whether the statement was sufficiently reliable in the absence of cross-examination That is where there adequate substitutes in all the circumstances So the Court of Appeal says at paragraph the majority of paragraphs 50 to 59 really That the trial judge downplayed the importance of cross-examination But in my submission if you look at the oral reasons and then the written reasons Shows the trial judge did understand the importance of cross-examination in the oral reasons the trial judge says that The lack of ability to cross-examine is a common feature in can applications and I pause just there that is exactly right and Tragic goes on if the lack of a right to cross-examine were an overriding disqualifying feature is apparent The most con applications would fail the trial judge makes the obvious point here which that it cannot be that sometimes a witness Particularly a child witness may not be available for cross-examination that it is a disqualifying feature The written reasons of course are to the same effect paragraphs 103 to 105 Trial judge says here say in paragraphs 103 here say remains presumptively inadmissible For valid policy reasons for most of these is the lack of the ability to cross-examine then discusses a paragraph 104 cases and Texts about the importance of cross-examination paragraph 105 Says this here say can nevertheless be admitted notwithstanding the lack of ability to cross-examine However, that is so only where there are sufficient in dish of reliability to persuade the judge That the lack of the right to cross-examination can be overcome. I'll just stop there. I don't need to read the rest of the Paragraph to you But the trial judge is emphasizing the important across examination and recognizance. Of course, this is the conclusion the dissenting judge reaches in a paragraph to 91 to 92
And you're right, in paragraph 92 he cites that exact passage. I want to go back to the, and the dissenting judge points to the trial judge's reasons showing that both procedural and substantive reliability were turned to, I want to go back to your list of seven. And the geography between procedural and substantive and what your, why you're putting them where you put them, and whether you're tracking what the dissenting judge said. I mean, for example, at 96 the dissenting judge speaks of the absence of contemporaneous cross-exam and being serious, but the fact that the statement was video recorded, that seems to me to be a classic procedural point, that the complainant promised to tell the truth again, and then, and she corrected the officer on significant details, all buttressed the statement's procedural reliability. But earlier were you not saying that that was also, the corrections were substantive? I mean, are these watertight compartments when we're dealing with a child? How would you describe how we're supposed to navigate this distinction in this particular case?
I did not mean to suggest Justice Kaseera that the fact that she corrected the officer was part of substantive reliability. I merely, when listing one of the elements of substantive reliability, I wanted to point out to the court and a place where she had corrected the officer, which I agree is part of procedural reliability. That is how the dissenting judge in the Court of Appeal deals with it. And I agree with that. I say that's right. About the question of whether or not these are watertight compartments, I agree that sometimes it can be hard to know the difference or to clearly delineate the lines, but I do think it is a useful tool here because there are elements of both. Because what you see is there are elements of procedural reliability, videotaping being the classic example, the promise to tell the truth or an oath being another one, both of which are present here. But then there are elements, and those of course emerge in the video which we are reviewing, which is the source of the substantive reliability itself. I say the seven I've used track essentially what either the trial judge or the dissenting judge in the Court of Appeal identify, but trying to pull it out a little bit more from the video itself, including the connection between the transcript and the video itself. It's a.
Mr. Dunn, may I ask you in terms of assessing threshold reliability, what can be made of the child's testimony at the preliminary inquiry where she says she forgets or is scared? I mean, I'm paraphrasing there. And then goes on to say that she doesn't remember the incidents, she doesn't remember talking to Constable Cunnington or whatever. So what do we do with that evidence in terms of assessing threshold liability?
This is one of the errors identified by the Court of Appeal, Justice Martin. As you know, it's in paragraph 62. In my submission, the trial judge dealt with this appropriately. And what the Court of Appeal does is essentially find that E.B.'s promise to tell the truth to the officer could not be relied on given that there was evidence from Dr. Sass that on a different occasion, when E.B. promised to tell the truth, that is the preliminary inquiry, E.B. told Dr. Sass that she had not been truthful. That's not right, in my submission. The trial judge's job at the threshold inquiry stage was to look at all the circumstances in which the statement to Officer Cunnington was given.
including here the promise to tell the truth, the demonstration because she's a young child that she understands the difference between the truth and the lie, and of course entitled to look at her subsequent statement to Dr. Sasse about the preliminary inquiry and the evidence of the preliminary inquiry itself. But also, and this is a point that the dissenting judge really picks up on in the Court of Appeal, what happened to E.B. when she last told her story? So it is not correct, as the majority, I think, says, that the trial judge could not rely on the promise to tell the truth in evaluating E.B.'s sincerity given what occurred at the preliminary inquiry. In my submission, the trial judge deals with this appropriately, and there's no error in how the trial judge addresses this evidence. First, the trial judge understood the evidence, quoted the evidence of E.B. at the preliminary inquiry. See that in paragraphs six to seven of the written reasons. Trial judge also notes Dr. Sasse's evidence about the impact on testifying on E.B., paragraphs 93 to 94 of the reasons. In my submission, the common sense inference is supported by Dr. Sasse's evidence that E.B. drew a clear link between telling her story to the officer and her apprehension, which by all accounts was unsurprisingly upsetting and traumatic to her. But that was a link that she only developed after having given the statement to Dr. Cunnington. The trial judge was entitled to find that her evidence at the preliminary inquiry did not undermine the importance of her promise to tell the truth before she knew any of the consequences of telling her story. Of course, this is exactly what the trial judge, the dissenting judge finds in paragraphs 106 to 108. In my submission, the majority was incorrect to take such a narrow view of this evidence. While I am on the question of the sincerity analysis and errors I say that the Court of Appeal made. The Court of Appeal also says that the trial judge did not advert to Dr. Sasse's acknowledgment that testifying court could traumatize E.B. if she had lied in her police statement and did not want to lie again. Court of Appeal says that at paragraph 63. That's just incorrect. Paragraph 53 of the trial judge's reasons say on cross-examination, Dr. Sasse acknowledged that a possible cause of trauma is lying on the part of the child. That is, the child does not want to lie again. So both ways that the Court of Appeal says the trial judge erred in dealing with sincerity do not withstand scrutiny in my submission.
Mr. Dunne, you've got, you don't have a lot of time. I'd like to get you some comments on the issue of the motive to fabricate. And I have quite a specific question. What exactly, what import, given the views of the majority on this question, what, how do you interpret paragraph 111 of the trial judgment, where the trial judge says, of significance, I am satisfied that there was simply no motive or reason for the child to fabricate her allegations against her uncle. To what extent does the word satisfied here suggest that the trial judge actually did do some considering and was announcing their conclusion rather than simply ignoring the motive that the child may have lied to get the uncle out of the house?
I say you can't read that word or that sentence in isolation. And so that what the trial judge is doing is answering the defense submission that there was a motive to lie. So the Court of Appeals conclusion is really, and I say this is wrong, that the trial judge either ignored or misapprehended that evidence that EB had a motive to fabricate. And in my submission, that's not held up by the reasons as a whole. So of course, the trial judge refers to evidence about EB's relationship with her uncle, including evidence from the CAS worker about what EB told her, quoted from the song that EB sings to herself at the break, and notes when discussing the video evidence when asked about her uncle what EB said about that. So in my submission, it's also important to remember how the issue of motive actually came up in this proceeding. It certainly comes up in the cross-examination of the CAS worker, where defense counsel asks, is EB smart enough to know that if she describes bad conduct by her uncle, she would get to live without him? The Crown objects to that question, but the trial judge allows the answer. And EB's evidence is that, or sorry, the CAS worker's evidence is that she has never heard of that happening. The Crown then, of course, makes submissions on the voir dire, anticipating the argument from the defense about motive. And you see this in, it's in my condensed book at page 204, it's in the record part 5, page 546, 547. The Crown is making the point that if EB fabricated this story to tell the CAS worker in order to get her uncle out of the house, you might expect her, that when she arrives at the police station, to immediately repeat the story to the police, but she does not. She says, I don't know why I'm here. The trial judge's oral reasons are directly responsive to that. And good to remember here that those reasons were released the same day of the argument on the voir dire and the argument at trial, of course. And the trial judge says there that there's no apparent motive on the part of EB to fabricate the allegations. Now, of course, in arguing at trial, defense counsel really pushes this argument of motive in my submission. And you'll see that starting really in my condensed book at 209. And then the trial judge wants to get to the bottom of this, my submission, that's what you see. You see in the condensed book at 212, what the exchange shows is the trial judge under strands the proper use of potential motive. And that the defense is arguing that there is one here. So the trial judge has to deal with that in my submission. The trial judge has to answer that question about whether there is motive. But what you see from the submissions and from the argument itself and the reasons, including of course the portions of the reasons, paragraphs 146 and 147, dealing with the argument on the merits, the trial judge says this is merely one factor. So defense has made an allegation of motive to lie. Trial judge understands defense doesn't have to prove that there's a motive to lie. And that it's but one factor. And the paragraph 111, which is where you started me, Justice Keseer, should be understood as a rejection of that defense argument. And also an acknowledgement of the fact that the disclosure to CAS appears to have been entirely spontaneous. That is, in my submission, exactly right on the facts of this case. It's consistent with this court's jurisprudence, including of course Gerard from 2022. And in my submission, the dissenting judge gets this exactly right when rejecting this argument in paragraphs 113 to 114.
Seeing that my time is up, subject to any questions, those are my submissions.
Thank you very much. Jeff Marshman.
Yes, good morning, justices. Oh. Am I, can you hear me? Yes, absolutely. Wonderful, OK. Good morning again. In this case, the respondent was convicted at trial on the basis of the complainant's police statement. The complainant, as the court is aware, did not testify and was never cross-examined. At the preliminary inquiry, she testified that she had no memory of the police statement, no memory of whether she was being truthful when she was making that statement, and no memory of the alleged offense. Unlike the case of Kahn, there was no corroborative evidence. The main factors cited in favor of the reliability of the complainant's police statement were her apparent age-inappropriate knowledge of sex and physiology and that, according to the trial judge, she had no motive to lie. Yet in my submission, the record showed that there were multiple potential explanations for her age-inappropriate knowledge that were unrelated to the alleged offense that couldn't be explored or tested because there had been no cross-examination. And the evidence showed that she disliked the accused and wanted him out of the house because he was mean to her, called her things like a, quote, little bitch, and caused fights and conflict with her mother. The majority of the Court of Appeal in my submission correctly overturned the conviction on two bases. First, that the trial judge applied the wrong test and analysis when admitting the hearsay statement. Had the proper test been applied, the police statement would not have been admitted. Second, that the trial judge erred by concluding the complainant had no motive to lie without considering or even referring to the evidence of animus that appeared to belie that conclusion. In my oral submissions, I will address these two grounds in turn and show why this Crown Appeal should be dismissed for the reasons articulated by the majority of the Court of Appeal. So starting with the admissibility issue, the trial judge applied the wrong test for admissibility by not considering whether the absence of cross-examination would leave important aspects of the complainant's police statement untested and unexplored. To the contrary, in fact, the trial judge appears to have operated on the erroneous basis that the lack of cross-examination was of limited significance to the admissibility analysis. Had the trial judge applied the correct test, he would have concluded that the statement was not admissible because having never been explored or tested, there were important questions left unanswered that went to the heart of whether that statement and the allegations therein were credible and reliable.
I don't want to be pedantic, but your argument sounds more like a misapplication of the test rather than applying the wrong test.
I think, and this came up in my friend's submissions as well, there's not always a clear line. It might in some ways be more a matter of taste, but I do actually, Justice Rowe, believe that the trial judge applied the wrong test. I acknowledge that depending on how you look at it, that could also be seen as erred in his application of it. But the reason I say that is because this court's made clear in Bradshaw, Kellewon, and other foundational cases that at the admissibility stage, the trial judge's preoccupation is whether in court contemporaneous cross-examination of the hearsay declarant would add anything to the trial process. And that's a quote from paragraph 40 in Bradshaw. And this court has specified that the trial judge has to identify the specific hearsay dangers with precision and consider any means of overcoming them without contemporaneous cross-examination. So the focus of the inquiry is ultimately whether the traditional engine of the trial process, that being contemporaneous examination and cross-examination before the trial of the hearing would be pedantic and superfluous, whether because the statement had already been tested, for example, at a preliminary inquiry in Hawkins, or because the circumstance of the statement made it inherently trustworthy such that the lack of cross-examination occasions no unfairness, for example, because of the existence of compelling corroborative evidence like in Kahn or something similar. That is not how the trial judge approached the evidence in this case. If the court would perhaps join me, it might be easier to use a reference in the respondent's compendium at page six, and that's tab one, page six. So starting at this, this is an excerpt from the submissions on the admissibility voir dire, and starting at line six, we see the court responding to counsel's concern that the defense never had any opportunity to cross-examine the complainant. And the trial judge responds to those concerns by saying, quote, but again, surely that's a consideration, but it surely only goes to the issue of ultimate reliability at the end of the day. I mean, lack of an ability to cross-examine is inherent in this whole exercise. I mean, we wouldn't be having this discussion if you had the right to cross-examine and had cross-examine, right? Then moving further down to line 15, the trial judge continues, says, and once if the evidence is admitted, then the lack of an ability to cross-examine and the lack of an ability to have the same opportunities that the Crown had in all of that, I mean, it gives rise to all kinds of considerations that may go to the issue of guilt or innocence or whether the Crown has proven the case beyond a reasonable doubt, but I just don't see how the lack of right to cross-examine has anything to do with the threshold issue.
Mr. Marshman, the dissenting judge answers your complaint here directly, paragraph 92, explaining that he doesn't agree with the conclusion of his colleagues in the majority, which basically take up the argument you've just made. While the trial judge considered cross-examination to be more important to ultimate reliability, he was alive to its role in the threshold reliability analysis in his written reasons. He said that hearsay remains presumptively inadmissible for valid policy reasons. For most of these is the lack of ability to cross-examine. And then he goes on to quote, you heard your colleague quote from it directly. What's your answer to your colleague on that and how is the dissenting
Sure. So there's two responses that I'd have to that, Justice Kaseera. On the one hand, there's no doubt that the trial judge appreciated as a general matter that cross-examination is a critical foundational feature of the adversarial trial process. He makes a number of general statements about the significance of cross-examination. But if you look at those statements and his reasons, they're generic boilerplate statements about the importance of cross-examination. And the issue is that he didn't appreciate the role that the lack of cross-examination and the concept of cross-examination figures into the admissibility analysis. It's not merely a factor to throw in the hopper when considering the ultimate reliability of the statement. It is the fulcrum on which the whole analysis turns at the admissibility stage. And the whole admissibility analysis is about whether there are case-specific hearsay dangers that cannot be tested, explored, and resolved without cross-examination. So the general comments that the trial judge makes about the importance of cross-examination do nothing to address the concerns about whether the absence of cross-examination here gave rise to dangers and concerns and left open questions that should have been tested and couldn't be tested or explored without cross-examination. Now may I?
Can I just come in here about the difference between threshold and ultimate reliability as I understand the arguments that have been put forward by the defence is that we're only you are in this court only asking about the admissibility of the video and not the soundness of the conviction on it. Is that an accurate assessment?
If the question is, is this an unreasonable verdict appeal? No, it's not. But obviously concerns about the admissibility and the...
You're saying it should not have ever been part of the proceedings and that's the issue before us, admissibility alone.
Yes. So if it were admitted, there is, you know, it provides a basis upon which a reasonable trier of fact could find the respondent guilty. And just returning for a moment to Justice Casillas question, I think you can really see the mischief caused by the trial judge using boilerplate comments about the importance of cross examination, rather than using it as the fulcrum on which the whole analysis turns. And if I could, if I could take you to tab two, I apologize, I'm just going to flip ahead. Tab two of my condensed book. And in this tab, there are excerpts of the submissions on the trial proper. So after the admissibility decision has been rendered, we're now dealing with Crown and Defense submissions on the ultimate issue of proof beyond a reasonable doubt. And what I'm going to suggest you'll see in these excerpts, and I'll take you to one or two of them in a moment, is you'll see that all the parties, including the trial judge and even the Crown, acknowledged and accepted that there were important unanswered questions relating to the credibility and reliability of the allegations that simply could not be resolved without speculation because no one had been able to explore or test the hearsay by questioning the complainant. So if you would join me at page 14 of my compendium,
Here we see the trial judge and the crown in a discussion during the submissions on the trial popper, but what to make of the pornographic movie issue. And at line five, the trial judge says, she talked about rather innocuous movies, and yet she had told the CAS worker in some detail about this one pornographic movie. So there's a bit of a problem there. Moving down to line 10, the trial judge continues. And again, and again, we can't ask her, you know, well, how come you didn't tell the officer about this? And the second thing is, I mean, it's possible, I suppose, that she could have got some information from the pornographic movie that could have given her some factual understanding of what happens, okay? But again, we can't ask her about that. We have to speculate. And the crown responds, following from that excerpt, the crown responds to this by saying, well, obviously we can't be speculating at the trial proper. And because she wasn't questioned, there's actually no evidence at the trial to ground the concern about her acquiring age-inappropriate knowledge from a movie, rather than- Excuse me.
Okay. I'm going to interrupt here. My reading is that defence council at trial put forward this as an inconsistent statement only. That were there a desire to establish that she did in fact in truth watch a video, defence would have had to taken an application to admit that hearsay. And purposefully or maybe that's not the right word but did not do so. So the entire formulation from a legal perspective about that movie was as an inconsistent statement. There was a little slippage in argument where at trial there was maybe there's some knowledge that way. But how can the court of appeal, how can we rely on that movie as a basis that she saw something when it's only presented as the difference between what she said to the CAS worker and what she did or didn't say to the constable.
Justice Martin, I believe this is why this is ultimately a case about the admissibility issue. Because it doesn't matter if the statement is true or not for the purposes of the hearsay analysis. The relevant fact is that there was evidence that the statement was made. And given the evidence that that statement was made about a pornographic movie and watching a pornographic movie that resembled by its description the alleged offences, that in and of itself was exactly the type of case specific hearsay danger that the trial judge needed to consider.
is shifting purpose on that particular piece of evidence, isn't it? When you proffer a piece of evidence and say we will be using this to establish an inconsistent statement and then go ahead and say we are now establishing it for the fact that there was in fact a movie watched and it is the basis on which we say she may have acquired some of this age inappropriate knowledge, those to me are different bases for the admission of the evidence and the trial judge can't be faulted for not making any finding about whether there was or wasn't a viewing of this evidence because there was a lot of discussion about what the purpose of this evidence is. So I have a problem with shifting purpose on the movie.
Understandably, and of course, defense counsel was sort of shifting around. It was clear he was trying to figure out what he was trying to do in some of these aspects. But I suppose what I'm trying to say, Justice Martin, is that setting aside the question of whether that statement was true or not, the fact that there was evidence that was accepted, that she made that statement, that in and of itself is exactly the type of thing that at the admissibility analysis you'd say, well, that's an issue that counsel and the Crown for that matter would want to explore in examinations and cross examinations. And so the fact that that statement was made is what grounds its significance in the admissibility analysis because we've never got to explore it.
In the admissibility analysis, in which way? I accept that if an inconsistent statement, yes, you'd want to explore that. But if it's a ground for the age-appropriate knowledge, I have a bit more of a question on that.
Well, I think, I mean, understandably, Justice Martin, I think it comes back to in Bradshaw, for example, this court said the trial judge has to identify any alternative explanations for the statement, even, and this is a quote I don't, I'll find the reference in a moment, even speculative alternatives. And the fact that you have this statement being attributed to the complainant from the CAS worker, so it's from an independent source and it was accepted that that was a statement that was made, that certainly provides an alternative explanation for the age inappropriate knowledge that transcends speculation. But the point is that this is why Bradshaw says even speculative matters can be important for looking at what's being lost with cross-examination, because the admissibility analysis is focused on, what can't we get rather than what can be admitted for the truth of its contents are not.
In this case, sir, could the child have honestly mistaken pornography for reality?
I think the issue is not so much could the child have mistaken pornography for reality. I think the issue is that the trial judge emphasizes throughout his reasons, as does the dissenting judge, that the credibility and reliability is really enhanced by the quote graphic nature and detailed nature of the description she gives, including a gesture of masturbation and things of that sort. When you add in the factor of a potential alternative source for that age-inappropriate knowledge, that undermines a significant plank of the reliability and credibility assessment. That was never addressed at the admissibility stage or in assessing ultimate reliability either.
Let me give you a nightmare scenario, at least from the view of a trial judge. I've got a jury, okay, and I've got a voir dire, the Crown brings in the evidence of the complainant and video statement, then the defense has a voir dire about how it can highlight certain inconsistencies because I think Justice Martin's distinction is a fair one, that's between the truth of the statement and the fact that it was made, and I'm trying to run a trial with a jury and nobody goes in the witness box, in the sense of, in the presence of the jury, everything is in a voir dire, and then there's this limited package of evidence that goes to the jury, and I'm supposed to kind of make all this work in a way that is fair to all parties, including the accused. I just think it's a nightmare from the trial judge's perspective, but I'm not here to plead for trial judges.
Well, I think Justice Rowe, perhaps a comment that I'd make that I think is in the same vein is I think that's why it's very important that we make sure that the admissibility analysis is precise and robust. And because the nature of the legal framework we have contemplates the possibility that as you suggested, a jury might ultimately receive a very limited package of evidence and all the heavy lifting was in fact done at the voir dire stage. And that's part of why it's just very important to focus the issue and using cross-examination and what we miss without it is the tool and the structure that this court has set out for doing that analysis. Is it possible?
for oh sorry go ahead thank you the the is it possible for the trial judge without committing a reviewable error
to rationally reject these alternative explanations on the basis of the detailed, the detailed account that the complainant gave in the video. Is that not, or is that, is your point that that's, you get an alternative explanation at the threshold level and that's end game. There's no way for a trial judge to offer a rational explanation for why those alternatives would not suffice, why a movie would not suffice to explain things like smell and the like, and that the dissenting judge who picked up on this exactly, paragraph 98 and 99, when he says the complainant gave a detailed description of the acts well beyond her development stage, going after the con idea, and give specific examples of why that detail served to displace rationally those alternatives.
I think just as considered the in general a trial judge is well equipped to consider and determine whether alternative explanations can be excluded. I mean that's that's baked into the Bradshaw analysis. We assume that judges can do that. I can't really speculate here. I'd say that on the facts as we have them and with the articulation of the trial judge which didn't identify these dangers and didn't consider what what not just what evidence we didn't have but how the accused was deprived of an ability to test the evidence and potentially generate further exculpatory evidence. He didn't consider that in in his assessment. So in general yes obviously if if a trial judge identifies a variety of alternative explanations the trial judge is going to have to engage rationally with it and and there are going to be circumstances where you can exclude them and others where you can't. But here we don't have any discussion of it and it's not clear on this evidence that it would be possible to exclude it given the circumstances. When I say exclude I mean exclude those alternatives given what had happened before. And I think if I could perhaps take you to one more excerpt that I maybe captures the gist of of the mischief that I see unfolding as a result of the what I say and what the majority characterize as an error in the trial judges. If we could go to page 20 of my condensed book. And this is again these are the submissions of the Crown this particular excerpt and these are the submissions on the trial proper. So again after the hearsay has been admitted. And I'd like to take you down to line 30 on page 20. And this is the Crown speaking and she says quote and so I would submit to your honor that at this point the complainants evidence really remains unrefuted. And I acknowledge that's in part because of the lack of cross examination. It can't be tested. But when it comes to unrefuted the evidence defense have called his mom and I've addressed my concerns with her. So what I really think we see in that in that extra particular the first two sentences is that both the Crown and the trial judges you can see in other excerpts if you as you go through accepted that there were important and fruitful areas to explore and test in the complainants evidence that could not be explored or tested without examining the witness. The issue is that both the Crown and the trial judge in my submission were operating under a mistaken understanding that those you know the possibility of these unanswered questions and important unexplored areas was not relevant to admissibility but was instead just a factor to throw into the hopper down the road when deciding whether the case had been proven beyond a reasonable doubt. And that's error enough in my submission but compounding that problem is that when in deciding whether the case had been proven beyond a reasonable doubt these unexplored topics and unanswered questions are being shunted aside as speculative because the complainant did not testify and give evidence. It's a catch-22 and again this gets back to the excerpt that I was referring to earlier where the Crown was discouraging the trial judge was asking about well what do I make of the pornographic movie and the Crown said well that it's going to be speculative and evidently the trial judge accepted that because we don't see that figuring into his analysis and his reasons oral or written.
May I take you to another excerpt that you provided us with? And it's an excerpt I was going to take you to in any event. And it's on page 11 of your condensed book. And it deals with the motivation to lie. And as I understand, the position that you're proposing and that was accepted by the Court of Appeal is that the trial judge didn't do an adequate job of canvassing whether or not there was a motivation to lie. But when I read through and I see at line 11 where Defence Council is saying, I'm going to talk about the motive to fabricate further on. She just wants to live with her mom. And that that would be a motive to make allegations against this individual. The court, though, shows that it's completely alive to what the other inference might be there. There's an interchange about what that inference might be. And the court says, well, the other inference of her wanting to live with her mom without this person was that this person is, in fact, doing the things that she says he is. So how can we then say that the trial judge isn't alive to this when he then goes on and says he's satisfied? Obviously, he's considered exactly the things that need to be considered there.
I think when he says he's satisfied, I guess this comes down to the distinction, Justice Martin, between absence of a proven motive to fabricate and proven absence of motive. Right. And as I read the trial judge's reasons, because he says there was simply no motive, that to me reads as a positive finding of a proven absence of motive to fabricate. And in my submission, if that is the conclusion that's being drawn, given the evidence that on its face would contradict that conclusion, or at least would require being addressed, the trial judge erred in making that positive finding. But McKinnon...
Can't he look at the alternatives and say there's inferences here and I choose the one that says even as you pitch it that there's a proven absence to fabricate on what is available to me?
I think the judge can certainly draw inferences based on the evidence that they had in front of them. In my submission, the evidence that was called at this trial was not sufficient to establish a proven absence of motive. The trial judge could have rejected, and obviously part of this involves rejecting that she in fact had a motive, but there's that space between a proven absence and a proven motive. So that's my submission where the error lies, is taking it one step further to a proven absence of motive.
It is odd that he used the word satisfied, but in any event, the dissenting judge points out the plausible explanation that the complainant could have disliked the accused because he had assaulted her. There's a source of animus for you, and that in any event, he goes on at paragraph 114 to say that the motive to lie is but one factor in the analysis. So how do you answer those two points of the dissenting judge?
Well, Justice Casir, I think the dissenting judges comment about, well, there's this alternate source of animus being maybe the allegations are true. That's obviously available and that's why I say that the trial judge was well within his jurisdiction or it was appropriate for him to make a decision on of the sort that there is no proven motive. But again, it comes down to the issue of like, if we're talking about a proven absence of motive. So I think on the basis of the feature that the dissenting judge refers to, the trial judge could very well have said, you know, I'm not satisfied that there's been an established motive. Just a big, a nested, like��né produces and is supposed to be sometimesército wasted
Can I just ask a question? Yes. Sorry. With regard to paragraph 98 of the dissenting judges reasons, he refers to con that talks about the evidence of a child of tender years, in this case the child I would say is of tender age, that it may bear its own special stamp on reliability. And I'm wondering in this case, given the age of the child, does that bear into when the judge is looking at the factor of the issue of reliability in his analysis? Because we think of different how rules have to be less rigid when we look, for example, at McGlauchlin's citation in WR, how does that factor into this analysis for reliability?
Well, certainly that is a relevant consideration. The age-inappropriate nature of the knowledge that she displayed in her police statement, that's very relevant to assessing her credibility and reliability. The concern is that because she was never cross-examined, we have an air of reality to a variety of alternative sources of age-inappropriate knowledge that are inconsistent with guilt or don't support the guilt of the respondent. And the trial judge never engaged with that at the admissibility analysis in determining whether it was appropriate to admit the evidence.
Thank you, Justice. Mr. Marshman, of course you are asking us to dismiss the appeal, but if we decide to allow the appeal, the remedy you are seeking is a new trial. Isn't it?
That's correct. And perhaps anticipating your question, Justice Cote, it depends on what basis this court renders a decision. But if the appeal were allowed in relation to, for example, the motive to fabricate issue, that's presumably an issue that once being overturned might require being readdressed.
Thank you very much. Thank you. Mayor Martin.
Yes, good morning, justices. Sexual assault trials are difficult to adjudicate, and sexual assault trials involving children even more so. Nonetheless, they remain subject to the same burden of proof and the same standard of review on appeal as other criminal offenses. The Criminal Lawyers Association respectfully submits that the admissibility rulings of trial judges on issues such as hearsay should not be entitled to greater appellate deference because they were made in the context of a sexual assault trial. And Justice Rowe, I want to address your question about what exactly is the standard of review that we're dealing with here. And I think that the real question is, aren't trial judges in a better position to assess hearsay dangers than an appellate court? And what I say to that is the key qualifier to that is that if there's an error in principle, there's no deference owed. And that's addressed in the quote from Euforaja that the appellant referred to. So we say that where there's an error in principle, the finding that the evidence meets the threshold reliability test is not owed any deference. And mischaracterizing a legal question as a finding of fact risks protecting a decision that is legally wrong from review. And this applies equally to convictions and acquittals. And if we water down the standard of review with respect to admissibility issues, this undermines the role of the trial judge as gatekeeper, as protector of the truth seeking process and trial fairness, which we say are both threatened by the admission of unreliable hearsay evidence. Now, I want to talk for a moment about the comments in GF with respect to credibility findings and how we're supposed to look at what kind of assumptions we make when trial judges are making findings of credibility. There's comments in GF that credibility findings have to be assessed in light of a presumption that the trial judge correctly applied the law. And what we say is that these comments have to be read in the context of that case, where the issue was of credibility, not of admissibility. Credibility findings are inherently specific findings made by a trier of fact who unavoidably is making a guess about the facts and who's had the advantage of seeing the witness testify. So deference in that context makes sense. So while trial judges are presumed to know the law, they aren't presumed to have applied it properly outside of their role as fact finders. The proper determination of a legal question is not a matter that should be within the trial judge's discretion. That's, oh, deference. And the justification for appellate non-intervention on credibility issues doesn't exist when those credibility findings are predicated on the correct determination of a legal issue like the admissibility of hearsay evidence. So we say that legal errors can't be recast as factual ones in order to insulate decisions from appellate review. Watering down the standard of review with respect to the admissibility of hearsay risks lowering the bar for the admission of unreliable evidence, creating a presumption of reliability for hearsay statements, and expanding the scope of deference to include a trial judge's legal conclusion on threshold reliability undermines the role of appellate courts in ensuring that legal principles are accurately followed. We say that the admission of unreliable hearsay evidence compromises trial fairness and raises the specter of wrongful convictions. And if we take a look at the sexual assault jurisprudence following GF, it supports the well-established principle that legal errors contributing to credibility findings must be decided on a correctness standard. If a trial judge fails to consider the relevant factors affecting the believability of a witness's evidence, their credibility findings should not be owed deference. And this distinction in both the pre-GF and post-GF case law between legal and evidentiary issues in sexual assault trials, such as the admissibility of other sexual activity, prior discreditable conduct, that kind of thing, and their differing standards of review must be maintained. So appellate review of admissibility rulings may be the only way to correct a conviction or an acquittal that stems from a trial judge's legal error. If we handcuff the ability of appellate courts to exercise their oversight function, this undermines the public perception of the administration of justice. Can I ask you?
I'm sorry, over here. Yes. Can I ask you, you said if there's an error in principle, no deference is owed. I think there's no question about that. Is the opposite true? If there is no error in principle, deference is owed. I guess what I'm getting at is this. If we're talking about a legal standard, is a court of appeal entitled to do its own application of the legal standard provided they do so to the facts as found by the trial judge. In all cases, even absent any apparent error in principle.
Yes, Justice Kyrgyzstanis, I think that's exactly right. And I think when we're talking about the error in principle, we have to be careful that we don't slip into the standard of review for sentence appeals, which of course is highly deferential and uses that same language of, you know, absent an error in principle, deference is owed. I think really it is the role of appellate courts to make sure we're getting the law right. You said the same thing, that we are not going to have a responds judge course that is, in that error that the court Chatman already made today.
You said the magic word, discretion. And when I read error in principle as the basis for appellate review, what comes up on my view screen immediately is the exercise of discretion, not a legal determination.
Right. I guess the question, what I want to say to that is when there, if there is a question that is discretionary, then of course there is deference that is owed. Where we have an error in principle or there is an error in law, there is no deference owed if that answers your question.
Thank you very much. Thank you. Mr. William Van Hengen.
William J. van Engen¶
Thank you, Chief Justice and justices and good morning. The criminal justice system exists only as long as it has the support and confidence of the public. The importance of public perceptions of fairness in the criminal courts therefore cannot be understated. A criminal trial is not simply a rote application of the law to a particular case, it is a stage and form, as Justice Corey once put it, for the exploration and just adjudication of an alleged crime. It is a public demonstration to the participants and the public at large that the criminal process has been conducted fairly. As this court noted in Keloan, the justice system places a premium on the calling of witnesses in open court under oath or affirmation, witnesses whose demeanor can be observed by the trier of fact and whose evidence can be tested through cross-examination. It goes without saying that this court has noted on numerous occasions the critical importance of cross-examination in ensuring fairness to the accused and in getting to the truth. In some cases there is simply no other way to discover the truth than through vigorous cross-examination. Now cross-examination is not simply about the answers given but it's the manner in which those answers are given, non-verbal cues, body language, all of which requires an in-person witness or a close approximation like CCTV. Given the fundamental importance of cross-examination, it is critical to public perceptions of fairness that trial courts carefully and cautiously consider the admission of hearsay evidence, evidence which cannot by definition be tested through contemporaneous cross-examination. It is the position of the CTLA that this court should reaffirm the strict test set out in Bradshaw and its predecessor cases and in particular to stress the importance of precisely identifying hearsay dangers. The test in Bradshaw strikes the appropriate balance between protecting the fair trial rights of the accused and ensuring that potentially valuable evidence is not lost simply because the declarant is not available. The admission of evidence which cannot be tested in open court must occur only where there are procedural safeguards which can effectively take the place of cross-examination or where the statement is so inherently reliable that cross-examination would add little if anything to the process, where even a skeptical caution using the words of Wigmore would look upon the statement as trustworthy. And as this court recently reaffirmed in FURY, threshold reliability remains a high standard. In our submission, the proper application of the principal exception, whether it leads to admission or exclusion of evidence, enhances respect for the administration of justice. When a hearsay statement is excluded without a proper analysis, the public loses an important piece of evidence and the truth-seeking function of the court is diminished. Members of the public, in particular the victim and family of the victim, may be left wondering why relevant evidence wasn't heard. Conversely, when a statement is admitted without a proper analysis of the risks, a member of the public, particularly the accused, is deprived of his or her right to cross-examination and therefore a fair trial. The public may also question a conviction that rests on untested evidence. It is therefore essential that trial judges follow the proper analysis as set out in Bradshaw in assessing threshold reliability. In particular, it is critical that trial judges carefully and precisely identify the hearsay dangers of a particular statement. Indeed, in Bradshaw, this court made clear at paragraph 26 that a trial judge must do this. Without a proper identification of the unique dangers of the statement, there is simply no way to assess whether or not the statement is sufficiently reliable to overcome those dangers. Ensuring the public perceives the criminal process as fair is of heightened importance in the COVID-19 era. Since the pandemic began, there has been a trend towards automation of various aspects of the justice system and a move towards virtual trials and court appearances in some jurisdictions. Many of these changes have benefited and modernized the system certainly and improved access to justice. However, this trend comes with drawbacks which can diminish the legitimacy of the courts in the eyes of the public including accused persons. The virtual hearing of a case may detract from the public stage and form of a criminal trial. In order to ensure that the public perceptions are maintained, the CTLA urges this Honourable Court to reaffirm the test in Bradshaw. If the test for hearsay does not remain focused on the unique risks of a particular statement and statements are too readily admitted, the stage and form of a criminal trial is diminished. And if that public forum is diminished, so too is the public's respect and confidence in the system itself. Subject to any questions, justices, those are my submissions. Thank you very much.
Thank you, Chief Justice. Very briefly, four points. First, my friend said to you that there were multiple potential explanations for E.B.'s age-inappropriate knowledge and also suggested there was an error of reality. Draw the court's attention to the video in particular, and in particular, this is something the dissenting judge picks up on, that there's more detail. It's not just more detail, it's different in kind, the evidence in the video. So what her head was telling her, that she had to say she liked it even though she did not being able to describe dialogue, there is no basis to think any of that could have been found in the pornographic movie. Second point, my friend took you to elements of the submissions, in particular exchanges with the defense, where he says the trial judge downplays the importance of cross-examination. In my submission, those should be read as the trial judge trying to focus on what matters here. Having regard to the evidence of Dr. Sasse, there would be no cross-examination here. This was a contested issue at trial, it's not now, but it was a trial. The defense counsel did not accept that necessity was made out. And in my submission, you really see this in the exchange between the trial judge and the Crown in reply submissions, and this is in my condensed book at 182, trial judge says, well, I mean, it just seems to me as a matter of logic, the lack of an ability to cross-examine cannot be fatal to this kind of application because you'll always have a lack of ability to cross-examine. Otherwise, if it was a fatal thing, they'd all be, every one of these would be dismissed. So again, trial judge trying to focus the arguments on what was actually at stake here. Third point.
My friend took you to some submissions between the trial crown, it's in pages 604 to 608, if I'm not mistaken, of the transcript. It's also in my condensed book about where the crown of the trial judge, the trial judge says essentially we can't ask EV questions about certain things. Those exchanges support the view that the trial judge was aware of and took seriously the importance of the ability to cross-examine. Fourth point with respect to the pornography, my friend said to you that it does not matter whether it was true or not, that EV had seen the movie. If that was the case, the trial judge dealt with this evidence appropriately. And in the oral reasons, the trial judge says the child advised that she had watched a pornographic movie, you see that in my condensed book at page six, and says that that potentially inconsistent statement, and I say potentially inconsistent because it's not even clear that it's actually an inconsistent statement, does not undermine credibility. That was for the trial judge to determine how important that potential inconsistency was, and not how the court of appeal addresses that evidence. And you'll see that in particular in paragraph 59 of the majority reasons. But can I ask you...
this question about that last point. I think Mr. Marshman went further in to the extent that he said that Bradshaw, through talking about speculation, allows the use of the movie as speculation even though it is hearsay evidence, even though it was proffered for one purpose, it can be used under Bradshaw as speculation. What's your position on that?
I say no, I say Bradshaw does not go that far. Speculative possibilities, as again, I'm not quoting directly from Bradshaw because I don't have it in front of me, have to be in the evidence. It is not, it would not have been appropriate for the trial judge to refer to inadmissible evidence that was a prior consistent statement, inadmissible evidence that was in a newspaper article or other inadmissible evidence in determining the threshold reliability. Practically speaking, of course, it has the potential to vastly expand what is at stake in the voir dire into a series of mini trials. But also in principle, it is in my submission, not supported and not supported by Bradshaw. Also on the facts of this case, that wasn't how the parties were addressing it. I agree with my friend. My friend said that there was some slippage in the argument, but the crown is clear about the purpose of this crown witnesses being introduced just for the narrative, not for the truth of its contents. The trial judge puts this, you see that pages 470 to 474 of the appellant's record, part five, puts this to defense counsel about the appropriate use of these various pieces of hearsay evidence. And in my submission, the court of appeal recognizes this, the appropriate use of hearsay evidence, inadmissible hearsay, inadmissible out of court evidence in other places in the judgment. I refer you in particular to footnotes two and three of the court of appeals decision and deals with the evidence of the movie differently and in my submission incorrectly.
Thank you very much. I would ask the attorneys to remain to our disposal. The court, the court. Thank you. Please be seated. First of all, I'd like to thank counsel for their patience and for their arguments. The court is ready to release its decision. The majority of this court would allow the appeal, substantially for the reasons of the dissenting Judge McPherson. Justice Rowe would dismiss the appeal, substantially for the reasons of the majority of the Court of Appeal. Therefore, the appeal is allowed and the conviction is restored. Thank you very much.