R. v. Parrott

R. v. Parrott
Collection
Supreme Court Judgments
Date
2001-01-26
Neutral citation
2001 SCC 3
Report
[2001] 1 SCR 178
Case number
27305
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Newfoundland and Labrador
Subjects
Criminal law
Notes
SCC Case Information: 27305
Decision Content
R. v. Parrott, [2001] 1 S.C.R. 178, 2001 SCC 3
Her Majesty The Queen Appellant
v.
Walter Parrott Respondent
Indexed as: R. v. Parrott
Neutral citation: 2001 SCC 3.
File No.: 27305.
2000: January 27; 2001: January 26.
Present: L’Heureux‑Dubé, Gonthier, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for newfoundland
Criminal law – Evidence – Hearsay exception – Expert witnesses – Whether mentally challenged complainant must be called as witness on voir dire to assess necessity component of principled approach to admitting hearsay evidence – Whether trial judge erred in relying entirely on expert evidence directed at voir dire issue of testimonial competence – Whether complainant’s out‑of‑court statements are inadmissible at trial – Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 16 .
A mature woman with a mental disability was seen being put into the accused’s car parked outside the psychiatric hospital where the woman resided. After conducting a search which lasted over seven hours, the police located the car, with the woman and the accused, in a remote area. Her shorts and underwear were in disarray. She had bruises and scratches on her body. The woman made out-of-court statements to the police constable who found her and to the doctor who first examined her. Pointing to her injuries, she communicated that the man in the car had done it. The accused was charged with kidnapping and sexual assault.
The trial judge was told that the complainant would be unable to give detailed evidence in court since her mental development was equivalent to that of a three- or four-year-old child and her memory of the events was poor. Crown counsel applied to admit the earlier out-of-court statements made to the doctor and the police officer, some of which had been videotaped, as a substitute for the complainant’s direct testimony at trial. Defence counsel opposed the application, arguing that the out-of-court statements were unreliable and moreover were unnecessary in light of the complainant’s availability to testify in person. A voir dire was held on the issue.
Based on one doctor's testimony and the complainant’s videotaped statement, the trial judge found it unnecessary to have the complainant herself called at the voir dire. The out-of-court statements were admitted. The accused was convicted of kidnapping, acquitted of sexual assault, but convicted of assault causing bodily harm.
The majority of the Court of Appeal held that the trial judge erred in admitting the hearsay evidence when the complainant herself was available to testify and there was no expert suggestion that she would suffer any trauma or adverse effect by appearing in court. The curative proviso of the Criminal Code was applied to maintain the conviction with respect to kidnapping but the conviction with respect to assault causing bodily harm was quashed and a new trial was ordered. The Crown appealed against the setting aside of the assault verdict.
Held (L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting): The appeal should be dismissed.
Per Major, Bastarache, Binnie and Arbour JJ.: The procedure adopted in this case raises two distinct though related issues, firstly the admissibility of the expert evidence at the voir dire, and secondly the admissibility of the complainant's out-of-court statements at the trial.
With respect to the first issue, there was no necessity shown at the voir dire for the expert medical evidence. Trial judges are eminently qualified to assess such matters as “childlike mental condition” or “poor ability to sustain questioning” without expert assistance. The complainant was available to testify and there was no suggestion that she might be harmed thereby. At the time the expert testimony was called, there was no basis laid for its reception. The complainant herself did not testify. The expert evidence was thus improperly admitted at the voir dire. As a consequence, the trial judge had no admissible evidence on which to exercise a discretion to admit the complainant’s out-of-court statements.
On the second issue, even if the expert medical evidence had been properly admitted and accepting the trial judge's view that the out-of-court hearsay evidence was “reliable”, the trial judge nevertheless erred in finding its admission to be “necessary”. If a witness is physically available and there is no suggestion that she would suffer trauma by attempting to give evidence, as was the case here, that evidence should generally not be pre-empted by hearsay. There were no exceptional circumstances in this case to displace the general rule.
Stereotypical assumptions about persons with disabilities, be it testimonial competency or trauma, should be avoided. The video of the complainant’s out-of-court statement could not afford evidence of any subsequent deterioration in her recollection of the events or her ability to communicate them. The trial judge having misdirected himself on the admissibility issue, his ruling must be set aside and the majority decision of the Newfoundland Court of Appeal ordering a new trial on the assault charge affirmed.
Per L’Heureux-Dubé, Gonthier and LeBel JJ. (dissenting): While it is generally a prudent practice for the Crown to put the complainant forward as a witness in order for the trial judge to evaluate her testimonial capacity, it is not an absolute legal requirement in every case. The trial judge’s inquiry was much broader than a limited application of a test of mental competence. The trial judge must assess the whole condition of the witness and balance the potential value of the evidence which may result from viva voce testimony against the potential prejudice to the witness. Potential trauma to the witness is one instance in which the Crown is not obliged to call her before the court in order to establish necessity. Other possibilities include circumstances in which it would be harmful to the witness or serve no real purpose to do so. Here, it would have served no real purpose for the trial judge to examine the complainant on the voir dire, given the evidence of necessity already before him.
The evidence before the trial judge amply supports his findings of necessity and reliability with respect to the complainant’s out-of-court statements. Assessing this complainant’s testimonial competency as a whole involved matters outside the traditional expertise of the trial judge. With the assistance of expert medical witnesses, the trial judge was able to acknowledge the childlike mental condition of the complainant and her fragile emotional state in addition to her poor ability to sustain questioning.
The complainant’s videotaped out-of-court statement to police, which the trial judge reviewed, made it apparent that she was incapable of testifying in a meaningful way, especially in the unfamiliar setting of a courtroom, about personally traumatic events that had taken place some nine months earlier. The videotape afforded the trial judge an adequate opportunity to evaluate the complainant’s ability to communicate evidence about the incident. It complemented reliably the information received from expert witnesses at the voir dire. The trial judge rightfully found the complainant incapable of communicating evidence in any meaningful way. Requiring the Crown to make the complainant testify only to confirm her limited ability to convey evidence would not only fail to generate any new evidence, but would also be demeaning and potentially traumatic to her.
In cases involving young children or people with mental disabilities who are mentally assimilable to young children, neither direct evidence of the trauma nor the compulsory attendance of the witness in order to demonstrate it should become a requirement. Even if, as a general rule, the judge should hear the witness in the case, some situations may arise where the attendance of the witness in court is unwarranted and unnecessary. Such was the case here and the complainant’s out-of-court statements met both the necessity and reliability requirements.
The majority of the Court of Appeal erroneously engaged in a re-evaluation of the record and interfered too readily with the trial judge’s findings. The trial judge was in a superior position to assess the expert testimony, which confirmed his observation of the complainant’s videotaped testimonial abilities. Admitting the hearsay evidence did not amount to palpable error. The accused’s conviction for assault causing bodily harm should be restored.
Cases Cited
By Binnie J.
Applied: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. Marquard, [1993] 4 S.C.R. 223; considered: R. v. R. (D.), [1996] 2 S.C.R. 291; R. v. F. (W.J.), [1999] 3 S.C.R. 569; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Hawkins, [1996] 3 S.C.R. 1043.
By LeBel J. (dissenting)
R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; R. v. F. (W.J.), [1999] 3 S.C.R. 569; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. Marquard, [1993] 4 S.C.R. 223; Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. P. (J.) (1992), 74 C.C.C. (3d) 276, aff’d [1993] 1 S.C.R. 469.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 16 [rep. & sub. c. 19 (3rd Supp.), s. 18 ; am. 1994, c. 44, s. 89].
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
Authors Cited
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
APPEAL from a judgment of the Newfoundland Court of Appeal (1999), 175 Nfld. & P.E.I.R. 89, [1999] N.J. No. 144 (QL), dismissing the accused’s appeal from his conviction for kidnapping, allowing the accused’s appeal from his conviction for assault causing bodily harm and ordering a new trial. Appeal dismissed, L’Heureux-Dubé, Gonthier and LeBel JJ. dissenting.
Wayne Gorman, for the appellant.
Robin Reid, for the respondent.
The reasons of L’Heureux-Dubé, Gonthier and LeBel JJ. were delivered by
1 LeBel J. (dissenting) – At issue in this appeal is whether the complainant’s out-of-court statements meet the necessity criterion of the principled approach to hearsay evidence, and were properly admitted by the trial judge for the truth of their contents. The Crown indicated at the beginning of trial that it did not intend to call upon the complainant to testify, stating that she was incapable of doing so. The complainant has Down’s syndrome. Her doctors describe her as mildly to moderately mentally retarded and she had been in institutional care for many years. As mentioned in Justice Binnie’s reasons, expert evidence has established that she had reached the mental development of a three- or four-year-old child.
2 At trial, the Crown sought to enter as evidence out-of-court statements the complainant made to others shortly after the incident occurred. The question at issue in this appeal is whether, on the voir dire to determine necessity, the Crown was obliged to put the complainant forward as a witness in order for the trial judge to evaluate her testimonial capacity. While I agree with my colleague, Binnie J., that it is generally a prudent practice to have the Crown do so, I would not elevate it to an absolute legal requirement in every case. In my view, the evidence before the trial judge in the present case amply supports his findings of necessity and reliability. His judgment was completely in accordance with the jurisprudence of the Court on the admissibility of hearsay evidence.
I. The Principled Approach to Hearsay Evidence
3 A hallmark of the principled approach to hearsay is flexibility. In moving away from the categorical approach of the past to hearsay exceptions, the Court signalled in the last decade an intention to render the rules governing the reception of hearsay evidence more responsive to individual situations. (See, e.g., R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; and R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40. See also J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 189-201.) When dealing with young children or people with mental disabilities, this approach seeks to address the necessity and reliability required for the admission of the evidence while at the same time safeguarding the dignity and integrity of the complainants or witnesses.
4 According to the modern approach, out-of-court statements may be admitted for their truth if reliable and reasonably necessary. Necessity is intended to be a malleable concept. In Smith, supra, this Court stated (at pp. 933-34):
... the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations. Wigmore, while not attempting an exhaustive enumeration, suggested at § 1421 the following categories:
(1) 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]. This is the commoner and more palpable reason....
(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.... The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same.
Clearly the categories of necessity are not closed. In Khan, for instance, this Court recognized the necessity of receiving hearsay evidence of a child's statements when the child was not herself a competent witness. We also suggested that such hearsay evidence might become necessary when the emotional trauma that would result to the child if forced to give viva voce testimony would be great. [Emphasis added.]
Let us note that this passage was reproduced with approval recently in R. v. F. (W.J.), [1999] 3 S.C.R. 569, at para. 34 (per McLachlin J., as she then was).
5 Thus, we realize that we are far from the strict approach to hearsay which prevailed in the past. Perhaps the most important aspect of the broad account of necessity quoted above is the fact that “the categories of necessity are not closed”. Trial judges now have a much broader discretion to admit evidence which would otherwise be considered as hearsay. This court should not attempt to confine this discretion into limited categories, but should rather content itself with stating broad principles to guide judges in the exercise of their discretion. As Lamer C.J. warned in R. v. U. (F.J.), [1995] 3 S.C.R. 764, at para. 35:
... both necessity and reliability must be interpreted flexibly, taking account of the circumstances of the case and ensuring that our new approach to hearsay does not itself become a rigid pigeon-holing analysis.
6 Of course, there is no presumption of necessity and the trial judge must consider whether the criterion is satisfied on the particular facts of each case: F. (W.J.), supra, at para. 41; R. v. Rockey, [1996] 3 S.C.R. 829, at para. 17. However, the case law does not mandate that any particular kind of evidence must be adduced in order to demonstrate necessity. As McLachlin J. viewed it, while writing for the majority in F. (W.J.), at para. 41, necessity may be founded on “the facts and circumstances of the case as revealed to the trial judge, or from evidence called by the Crown”. In keeping with the overriding principle of flexibility, the key is that necessity be grounded in evidence that is appropriate to the circumstances.
7 In R. v. Marquard, [1993] 4 S.C.R. 223, at p. 236, the Court observed that generally speaking, the best measure of testimonial capacity is the witness’s performance at the time of trial. I agree that the preferred method of evaluating a witness’s ability to give evidence is to assess him or her at first hand, especially during cross-examination. But this is clearly not an absolute rule, and to make it so risks stultifying the modern approach to hearsay contrary to the desired principle of flexibility. The case law suggests that, even when the hearsay declarant is physically available, the trial judge is not obliged to examine him or her directly in order to find necessity. Khan and Rockey are two instances in which the necessity criterion was met, notwithstanding the Crown’s failure to call the hearsay declarants for examination on the voir dire. In both cases, necessity was grounded on evidence that testifying in court would have traumatized the child witnesses; it would accordingly have been cruel indeed to require them to appear at the voir dire: Rockey, supra, at para. 23. While potential trauma to the witness is one instance in which the Crown is not obliged to call her before the court in order to establish necessity, I would not foreclose the possibility of other circumstances in which it would be harmful to the witness, or serve no real purpose to do so.
8 The trial judge, in the present case, found it necessary to admit the complainant’s out-of-court statements without first calling the complainant as a witness. The judge’s finding was based on his observation of the videotaped interview of the complainant, the evidence of her attending physician and nurse, and that of two other physicians who examined her. The Court of Appeal ((1999), 175 Nfld. & P.E.I.R. 89) should not have intervened on Barry J.’s finding that the admission of the videotaped interview was rendered necessary by the facts of the case. The situation before him amply suggested that admission of the videotaped interview was necessary as “evidence of the same value” would most likely not be obtained by viva voce testimony of the complainant. It was apparent that attempting to make the complainant testify would not only fail to generate any new evidence, but also that it would be demeaning and potentially traumatic to her.
9 In this context, the ruling of the trial judge was not a narrow one limited to the application of a test of mental competence as in s. 16 of the Canada Evidence Act, R.S.C. 1985, c. C-5 . The trial judge’s inquiry was much broader. It sought to examine the whole of the complainant’s condition as mandated by our principled approach to hearsay and necessity as discussed above. In that regard, the trial judge did not simply express a preference for the views of one of the experts heard, Dr. Gillespie. Barry J.’s decision examined more broadly the victim’s childlike mental condition or mental retardation and its impact on her potential testimony. This careful consideration of the condition of the complainant led the judge to decide that she was incapable (as opposed to the more narrow concept of “incompetence”) of testifying. He then decided that the out-of-court statements in the video should be received into evidence, because they met the reliability and necessity tests.
II. The Evidence on the Complainant’s Condition
10 Barry J. held that the admissibility of the video was justified by his finding about the mental age of the victim which he equated to that of a very young child:
It appears that it [her mind] might be . . . so greatly retarded that it does not allow her to mentally process or express matters in a normal matter other than in very simple statements such as, one might attribute to a child of very tender years.
(Transcript of Barry J.’s ruling on the voir dire of March 30, 1995, at p. 4)
11 On the basis of the video, and of the evidence of a nurse of the Waterford Hospital and the testimony of experts, the trial judge noted that the victim lived a very restricted life, under constant supervision. She was able to make simple statements, but did not retain any long term memory of events, although at the same time, she seemed unable to attempt to deceive and had no history of fabrication. As Barry J. stated:
All these activities have to be supervised and many of them require assistance. She has a habit of repeating things that she has heard or come into contact with and may do so in answer to questions that may be completely unrelated. She has no history of fabrication . . . [S]he is capable of making simple statements about some matters. But her mind cannot retain an account of any particular matter for any length of time or . . . complete an account of anything which may transpire. As I’ve mentioned, she has no history of fabrication and it appears that from her history . . . it would be unlikely that she would attempt to deceive any person of something which may have occurred.
(Transcript of Barry J.’s ruling on the voir dire of March 30, 1995, at p. 4)
12 In my opinion, this is one of those cases in which it would have served no real purpose for the trial judge to examine the complainant on the voir dire, given the evidence of necessity already before him. The record fully supports the trial judge’s finding that the complainant was incapable of testifying in a meaningful way about the incident. Chief among the evidence was the videotape of the complainant’s interview with Sergeant Ryan, which enabled the trial judge to observe for himself the complainant’s ability to convey evidence. The interview was conducted on the day after the incident took place, in the company of a nurse and nursing assistant from the Waterford Hospital where the complainant lives. Sergeant Ryan asked the complainant a number of basic questions about the incident, to which she responded in broken sentences that were, at times, very difficult to understand. The trial judge recounted the interview in the following way:
In response to questions from Sergeant Ryan as to what had happened to her, she made several statements; and in the first statement when asked that question as to what happened to her, she said “the man in handcuffs did it,” and then she said, “Put him in jail.” When asked what happened to her arm and face, the bruises and scratches, she said, “A man did that, put him in jail.” When asked what the man looked like, she said, “Man with black hat... glasses... police took him away.” When asked who hurt her face, she said, “scratched me” and when asked who, she said, “The man”. When asked where, she said, “In the car.” When asked what he did, she said, “Smacked me.”
(Barry J.’s reasons for conviction of April 3, 1995, at p. 11)
The Court of Appeal also reviewed the videotape. The majority and minority opinions provide a similar account of the interview, which Wells C.J.N. described as follows at p. 127:
That video tape displays [the complainant] answering Sergeant Ryan’s question as to the cause of her scratches and bruises with “bad man, handcuffs, go to jail” on each of the numerous times she was asked. In answer to who he was or what his name was she simply repeated “Don’t know” each time she was asked. To the question of what he looked like she said “glasses” and “hat”.
13 This was the extent of the information that the complainant was able to communicate about the incident shortly after it occurred and in a supportive environment. The trial judge found the complainant’s responses to Sergeant Ryan’s questioning repetitive and largely incoherent. I cannot disagree with his conclusion, and am doubtful that she would have been able to provide useful information in the unfamiliar setting of a courtroom, about personally traumatic events that had taken place some nine months earlier.
14 As the Court confirmed in Marquard, supra, at p. 236, testimonial capacity entails the ability to perceive, recollect and communicate events to the court. The evidence of the physicians who examined the complainant only confirms the extremely limited nature of her communication skills. Dr. Gillespie, a psychiatrist associated with the Waterford Hospital who had known the complainant for almost 20 years, evaluated her ability to communicate shortly before the beginning of trial. His evidence was unequivocal that she was incapable of testifying in court. Her answers to simple questioning about the incident were “totally incoherent” and repetitive. While he could not provide a conclusive opinion on her memory, he did cast doubt on her long term ability to remember the events at issue. Responding to a question from counsel about the videotaped interview, he stated:
A. Yeah, I heard that, you know second hand that she’d been videotaped and made some statements, but I gather that was some time back last year and I would think with her poor attention span, she may not remember what she said then. But certainly when I asked her about a man taking her away from the hospital, she couldn’t give me any answer that was coherent.
15 Dr. Gillespie’s assessment of the complainant’s ability to communicate was uncontradicted by the testimony of Dr. Parsons, a family doctor who examined her several hours after the incident took place, and of Dr. Morley, her attending physician. Dr. Parsons reported that the complainant was simply unresponsive to her questioning about the incident. Dr. Morley confirmed that the complainant’s capacity to communicate was limited and that the court would have difficulty understanding her. As for her ability at the time of trial to recollect the events and describe them to the court, his opinion was more equivocal:
Q. What about at this time, on today’s date, would she be able to give an account of what has happened last July?
A. Possibly, but given her verbal limitations, it could be quite difficult to understand her, but I believe that she would be able to give some account, some account of what happened to her.
16 The record also includes the testimony of Ms. Miller, the complainant’s attending nurse. She testified that the complainant could verbalize “very well”. Testimonial competence, however, extends beyond mere verbal aptitude and incorporates a cognitive component: Marquard, supra, at p. 236. Her assessment is also contradicted by Dr. Morley’s assertion that the complainant’s verbal skills were limited. It should be noted that Ms. Miller further testified that when asked simple questions, the complainant was generally responsive, but her answers were very basic and lacked any detail. When asked whether the complainant had, in the time since the incident, ever provided a narrative of the events in question to Ms. Miller, she explained:
A. Not in detail, no, like I say it was very, very simple and she never, ever, said names to me personally.
17 What emerges from a review of the record is the description of a witness who, depending on the circumstances and the questioner, was able to provide at best only the most basic information about what had happened to her, in a manner that was extremely difficult to understand, and with little, if any, long term memory. The trial judge had an adequate opportunity to evaluate the complainant’s ability to communicate evidence about the incident. He found that she was incapable of doing so in any meaningful way. In light of all the evidence adduced on the voir dire, it would have been difficult to conclude that the complainant could have communicated evidence of the same quality at trial. My reservations are stronger still with respect to her ability to handle cross-examination, which is a more sophisticated intellectual exercise than examination-in-chief. To require the Crown to call the complainant before the court in these circumstances, only to confirm her limited ability to convey evidence, would have been demeaning and traumatic to her. As the trial judge pointed out, the victim lived under very restricted and supervised conditions. She could not look after herself (ruling on voir dire, at p. 4). She was also afraid to leave the hospital grounds. The trial judge even wrote that she had “to be coaxed . . . with treats by staff to persuade her to go out for a drive or an outing with other patients” (reasons for conviction, at p. 8). Moreover, Barry J. referred to Dr. John Morley’s testimony. Dr. Morley had said that it was not feasible for the victim to leave the hospital (reasons for conviction, at p. 10). This evidence supports the conclusion that the victim would suffer a substantial trauma from leaving the hospital or from any other kind of change in her immediate surroundings. This trauma would be especially acute, if she were to be faced with the formal atmosphere of a courtroom and asked to relate incidents which happened years ago. Given her communication difficulties and the apparent limitations, if not absence, of her long time memory, it may readily be inferred that calling her as a witness would have merely confirmed what is already clear from the record the trial judge had before him. It would have also deprived her of that degree of respect that every disabled person is entitled to (see Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211, at para. 108, per L’Heureux-Dubé J.).
III. The Objections to the Use of the Expert Evidence and the Video to Establish Necessity
18 Justice Binnie contends that the trial judge erred in considering the testimony of Ms. Miller and Doctors Gillespie, Morley and Parsons, as in his view, it failed to meet the necessity criterion for the admission of expert evidence in R. v. Mohan, [1994] 2 S.C.R. 9. To satisfy the necessity requirement, the information provided by the expert must be outside the ordinary knowledge and experience of the trier of fact: R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 46 and 57, per Major J. (also para. 21, per McLachlin C.J., dissenting on the merits but not on this point); Mohan, supra, at p. 23. Testimonial competence, my colleague maintains, is a matter directly within the ken of the trial judge and jury.
19 However, as I explained before, the issues examined by Barry J. to determine necessity were broader than the mere competence to testify under s. 16 of the Canada Evidence Act . The trial judge had to assess the condition of the complainant as a whole. This involved matters which were outside his traditional expertise, and which required expert assistance. With this assistance, the judge was able to acknowledge the childlike mental condition of the complainant and her fragile emotional state in addition to her poor ability to sustain questioning. In the present case, the nurse gave factual evidence about the complainant’s character and condition. The doctors testified on the basis of both their observations of the witness and their professional experience in matters which fell squarely within their competence on questions that went to the medical and psychological condition of the witness. In these circumstances, the hearsay evidence was admitted and used in accordance with the relevant legal rules.
20 In order to assess the condition of the complainant, the judge not only relied on the experts’ testimonies, but also on his observation of the video. This is the same video containing the statements by the complainant which the accused maintains are inadmissible. Binnie J. argues that this use of the video is contradictory because the video is, according to him, used both to prove that the complainant is “incompetent to testify” and to prove the truth of the statements it contains. This, again, undermines the broad nature of the inquiry undertaken by Barry J. in the context of hearsay and necessity. As we saw earlier, the case-law from this court favours a broad inquiry directed towards the whole condition of the complainant to determine not only whether she has the capacity to make statements, but also whether her emotional and psychological state would allow her to give testimony in court of some added value without risking demeaning or traumatizing her. This is an exercise in which the trial judge must balance the potential value of the evidence which may result from viva voce testimony against the potential prejudice to the witness.
21 Video technology in such circumstances has become an appropriate instrument to evaluate the condition of a witness. In R. v. B. (K.G.), [1993] 1 S.C.R. 740, Lamer C.J. commented on the ability of this technology to convey the demeanor of witnesses (see pp. 792-93). With the proper equipment, provided that the tape has not been tampered with, it recreates a sense that the witness is present and allows her to be observed (ibid.). Indeed, it is known that the use of the technology of videos and video conferencing is spreading through the justice system as an acceptable substitute for the physical presence of counsel and sometimes of parties or witnesses in the courtroom. In this case, it allowed the judge and opposing counsel to observe the witness and her behaviour. Moreover, the respondent did not dispute the reliability of the video. It complemented reliably the information received from witnesses heard by the judge.
IV. The Need for Direct Evidence of Prejudice to Witness
22 In cases involving young children or people with mental disabilities who are mentally assimilable to young children, neither direct evidence of the trauma nor the compulsory attendance of the witness in order to demonstrate it should become a requirement. The infringement of the witness’s right to the preservation of her dignity and integrity may be inferred from the circumstances of the case. McLachlin J. in F. (W.J.), supra, underscored the need for a sensitive and practical approach to those matters. While assessing the requirement of necessity, she held that courts should avoid preordained classifications. Instead, while circumstances warrant, they must look at the whole environment and use all the facts they already know. At paras. 36-37, she wrote:
Necessity therefore should not be approached on the basis that the case must fit into a preordained category. It is a matter of whether, on the facts before the trial judge, direct evidence is not forthcoming with reasonable effort. The reasons for the necessity may be diverse — ranging from total testimonial incompetence to traumatic consequences to the witness of testifying.
There is no absolute rule that evidence must be called on the issue of necessity. Where it is apparent from the circumstances before the trial judge that the child cannot give useful evidence, the judge may find out-of-court statements are “necessary” in the context of the rule, absent evidence. This may be the case where the child is very young.
This prudent approach should be used in the case of witnesses like the complainant who have the mental age of such a child. The absence of direct evidence should not lead courts to presume the absence of trauma nor that the experience would not adversely and painfully affect a victim like the complainant. The law in this area does not include any inflexible rule requiring courts to drag witnesses into the courtroom in cases where all the known circumstances indicate they will be unable to testify usefully. Such a situation was foreseen by McLachlin J. in F. (W.J.), supra, at para. 41:
The unavailability of direct evidence may be self-evident in the case of very young children. But it is not confined to that situation. If the circumstances reveal that the child cannot, for whatever reason, give his or her evidence in a meaningful way, then the trial judge may conclude that it is self-evident, or evident from the proceedings, that out-of-court statements are “necessary” if the court is to get the evidence and discover the truth of the matter.
23 Moreover, in F. (W.J.), supra, at para. 37, the Court approved a passage from a decision of the Quebec Court of Appeal which held admissible some out-of-court statements notwithstanding the unavailability of extrinsic evidence on the test of necessity (see R. v. P. (J.) (1992), 74 C.C.C. (3d) 276, aff’d [1993] 1 S.C.R. 469). At the time, the Quebec Court of Appeal had held at p. 281:
[translation] . . . the test of necessity is met by the very fact of the young age of the child (I repeat, two years, three and a half months at the time of the events, and three years nine and a half months at the time of trial), which entails in the present case the impossibility for the child to testify effectively at this age . . . on the facts which took place one and one‑half years earlier. There is no need for "solid evidence based on psychological assessments that the testimony in court might be traumatic for the child or harm the child" here. In my view, it is self‑evident, and in addition, the testimony could not be probative because of the time which has passed since the incident and given the nature of the circumstances of the event.
24 Brossard J.A.’s comments, in his concurring reasons, are also relevant to the issue, as they underline the dangers of a rigorous procedure that fails to take account of the circumstances and conditions of the witness (at p. 282):
[translation] The young age of the victim constitutes in my opinion one of the circumstances which may demonstrate, in the absence of any other formality, necessity which justifies hearsay evidence which would otherwise be inadmissible.
. . . [it is not] necessary to bring her before the court in order for the trier of fact to note this physically and materially.
It seems to me that some things are so obvious that they dispense with a rigorism which may be both unhelpful and traumatic for a child of such age.
25 It is true, as pointed out in Binnie J.’s reasons that in F. (W.J.) the victim was called to be a witness. It should be remembered, though, that the victim was older than the mental age of the present complainant. He was five years old at the time of the crime and almost seven during the trial. Moreover, in the Quebec case, P. (J.) which was approved in F. (W.J.), an almost four-year-old child was not called to the witness box. More important than the discussion of the age is the recognition both in F. (W.J.) and P. (J.) that, in some cases, even if as a general rule the judge should hear the witness in the case, some situations may arise where the attendance of the witness in court is unwarranted and unnecessary. The trier of fact must then assess the necessity and the reliability of the out-of-court statements offered in evidence by the prosecution. Both the necessity and reliability requirements were met by the evidence considered by the trial judge.
V. Conclusion
26 This Court has without exception assumed a posture of deference toward a trial judge’s assessment of testimonial capacity. As McLachlin J. admonished in Marquard, supra, at p. 237, “[m]eticulous second-guessing on appeal is to be eschewed.” The majority of the Court of Appeal engaged in just such a re-evaluation of the record and interfered too readily with the trial judge’s findings. The trial judge was in a superior position to assess the expert testimony, which obviously confirmed his own observation of the complainant’s abilities during her interview with Sergeant Ryan. In my view, the trial judge’s decision to admit the hearsay evidence manifests no palpable error.
27 I would accordingly allow the appeal and restore the respondent’s conviction.
The judgment of Major, Bastarache, Binnie and Arbour JJ. was deli