|
Disability - Evidence. R. v. M.H. [cross-examination on fresh evidence]
In R. v. M.H. (Ont CA, 2026) the Ontario Court of Appeal dismisses a Crown motion for directions, here where the issue was fresh (recantation) evidence from a "cognitively impaired" complainant:[6] As mentioned, the appellant seeks to have the complainant’s out of court recantation admitted as fresh evidence through the appellant’s mother, a third party[2]. The Crown initially sought to cross-examine the complainant. The appellant took the position that this was neither practical nor necessary. The Crown then advised the appellant that it would seek to have the complainant’s police statement admitted through a third party, the police officer who interviewed her. The appellant then asked that the complainant be made available for cross-examination on her police statement. The Crown declined, maintaining that it should be the Crown who conducted any cross-examination of the complainant. Alternatively, the Crown proposed that the parties put both the police statement and recordings containing the recantation before the court in an agreed statement of fact, or through third party affidavits, which the Crown says is what the appellant initially intended. The appellant, who wanted to preserve his ability to cross-examine the complainant, did not agree.
[7] The Crown brought this motion for directions on December 29, 2025. Each party has filed written submissions setting out their respective positions.
[8] The Crown asks that “the proposed fresh evidence be provided to the court without further examination of the very vulnerable complainant”. It relies on r. 27(8) of the Criminal Appeal Rules, which allows an appeal management judge to make directions concerning the dates, manner and order of cross-examinations to ensure that the fresh evidence record is completed expeditiously. The Crown offers several good reasons why the appellant should not be allowed to cross-examine the complainant to advance his fresh evidence application, including that the proposed fresh evidence was apparently obtained in violation of a court order prohibiting communication with the complainant. Further, the Crown relies on this court’s prior direction that “[i]t will only be in exceptional cases that an appellant who has been convicted of sexual assault should be afforded the opportunity to cross-examine the complainant in aid of a fresh evidence application on appeal”: R. v. Sihota, 2009 ONCA 770, 249 C.C.C. (3d) 22, at para. 14. The Crown submits that this direction is particularly important when, as here, the complainant is vulnerable.
[9] The appellant’s primary position is that the Crown should be directed to file an affidavit from the complainant pursuant to r. 27(8)(b) of the Criminal Appeal Rules which permits an appeal management judge to give directions on the “contents of the record on [a] motion”. This order would in effect require the complainant to be made available for cross-examination. In the alternative, the appellant says he is prepared to bring an application under s. 683 of the Criminal Code, R.S.C., 1985, c. C-46, for an order that the complainant attend for cross-examination. Section 683(1) of the Criminal Code provides that:For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,
....
(b) order any witness who would have been a compellable witness at trial, whether or not he was called at the trial,
(i) to attend and be examined before the court of appeal, or
(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose [10] While cross-examination of the complainant on the proposed fresh evidence may appear to create a fairness issue given the circumstances in which the evidence was collected, the fact remains that the panel hearing the fresh evidence motion may struggle to properly assess that evidence without the benefit of cross‑examination. That is because, even if the appellant is only seeking to admit the fresh evidence for its impeachment value, and not for the truth of its contents, the credibility of the recantation may still be relevant. As this court held in R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at paras. 54-56, “in determining whether [a] recantation has sufficient impeachment potential to merit its admission on appeal, the appeal court must determine what a trier of fact could reasonably make of the recantation in its assessment of the credibility of that witness’s trial testimony. The credibility of the recantation is relevant to that assessment.”
[11] While there are legitimate arguments for and against permitting the complainant’s cross‑examination, as I will explain, it would not only be premature for me to decide this issue now but likely beyond my authority as a single judge.
[12] Granting the Crown motion and directing that the complainant not be cross-examined would effectively short circuit the normal s. 683(1)(b) process which involves bringing a motion for cross-examination for consideration by a panel comprised of at least three judges of this court. In other words, granting the Crown’s motion at this stage would bar the appellant from bringing a motion that he is otherwise entitled to advance, and which only a panel of this court has the authority to decide. The court must hear submissions and consider whether “there is some reasonable possibility that the cross-examination could assist on the motion to adduce fresh evidence by yielding material that will be admissible as fresh evidence”: R. v. Sihota, at para. 14. This includes material having to do with credibility and what use can be made of the complainant’s recantation.
[13] Further, the Criminal Appeal Rules stem from s. 482.1(1) of the Criminal Code which allows a court of appeal to make rules for case management so long as they are not inconsistent with the Criminal Code and other federal statutes. As this court held in R. v. J.M., 2021 ONCA 735, 158 O.R. (3d) 81, at paras. 27-28, while procedural rules may be made under s. 482(3)(d) to carry out the Criminal Code’s provisions relating to appeals, they cannot expand the court’s jurisdiction. In R. v. J.M., this court held that the Criminal Appeal Rules cannot ground a right of appeal which the Criminal Code does not provide. In this case, the rules cannot neutralize the appellant’s existing statutory right under s. 683.
[14] Although an appeal management judge has broad authority under r. 27(8) of the Criminal Appeal Rules, the Criminal Code empowers a panel to make an order for examination of a witness. Accordingly, it would not be appropriate for me, as a single judge, to make an order which effectively directs that a particular witness cannot be examined. Nor am I inclined to make an order, as the appellant urges, that directs the Crown to file an affidavit from the complainant pursuant to r. 27(8)(b) of the Criminal Appeal Rules.
[15] The best course is to dismiss the Crown’s motion and instead set a timetable for the appellant’s s. 683(1)(b) motion for an order compelling the complainant to be examined, if he still wishes to proceed in that way. I will discuss this with counsel at our next appeal management meeting, which they are to schedule with court staff once the appellant confirms that he is indeed bringing such a motion. . R. v. Oloko
In R. v. Oloko (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here brought against a conviction "of one count of sexual assault. The complainant was a 47-year-old woman with Down syndrome who communicates through words and gestures, but not full sentences. At the time of the alleged sexual assault, the complainant lived in a group home where the appellant worked occasional night shifts."
Here the court considered an issue of the principled hearsay exception (necessity and reliability), and the requirements of a voir dire where the complainant was communication-handicapped:[2] Rather than calling the complainant as a witness at trial, the Crown brought an application to admit hearsay statements the complainant made to three personal support workers following the alleged sexual assault. The trial judge held a voir dire. The Crown’s evidence on the voir dire came from the three personal support workers and from two videos of the complainant speaking to the police. The trial judge ruled that the complainant’s hearsay evidence was necessary and reliable. She made this ruling without hearing from the complainant herself and without any expert evidence that compelling the complainant to testify would be traumatic.
....
[5] I would allow the appeal and order a new trial. I agree with the appellant that the trial judge erred in finding that the hearsay evidence was necessary without having the complainant attend on the voir dire and without expert evidence on whether testifying would cause trauma to the complainant.
....
[24] I agree with the appellant that the trial judge erred in concluding that the hearsay evidence was necessary without the benefit of the complainant’s participation on the voir dire. In other words, the process followed by the trial judge on the voir dire was flawed. Had she followed the proper process, it may ultimately have been open to her to find that the hearsay evidence was necessary. But, in this case, it was not sufficient to rely on the evidence of the three personal support workers and the videos to reach this conclusion.
....
(1) Standard of review
[27] The admissibility of hearsay evidence is a question of law, to be reviewed on a standard of correctness. However, an appellate court must accord deference to the findings of fact underlying the admissibility ruling. Further, trial judges are “well placed to assess the hearsay dangers in a particular case and the effectiveness of any safeguards to assist in overcoming them”. Therefore, absent an error in principle, a trial judge’s determination of threshold reliability is entitled to deference: R. v. Charles, 2024 SCC 29, at para. 41.
(2) General principles regarding the admissibility of hearsay evidence
[28] Hearsay evidence is presumptively inadmissible: Charles, at para. 43. In R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 19, the Supreme Court explained the importance of in-court testimony to the truth-seeking process:The truth-seeking process of a trial is predicated on the presentation of evidence in court. Litigants make their case by presenting real evidence and viva voce testimony to the trier of fact. In court, witnesses give testimony under oath or solemn affirmation. The trier of fact directly observes the real evidence and hears the testimony, so there is no concern that the evidence was recorded inaccurately. This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value. To determine whether a witness is telling the truth, the trier of fact can observe the witness’s demeanor and assess whether the testimony withstands testing through cross-examination. [Citations omitted.] [29] Despite the important role and primacy of in-court testimony, hearsay may exceptionally be admitted into evidence under the principled exception to the hearsay rule. To be admissible, the hearsay evidence must meet the twin requirements of necessity and threshold reliability: Charles, at para. 45. In the context of criminal proceedings, the court must conduct a voir dire to determine whether the hearsay evidence meets these requirements: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47. The party who seeks to adduce hearsay evidence bears the onus of demonstrating both requirements on a balance of probabilities: Bradshaw, at para. 23, citing Khelawon, at para. 47.
[30] Necessity arises where relevant direct evidence is not available. In R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 934, the Supreme Court observed that “the categories of necessity are not closed” and identified two circumstances where necessity may arise: (1) where the “person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross-examination]”; and (2) the “assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources”.
[31] Threshold reliability is established if a party demonstrates the statement’s procedural or substantive reliability. Procedural reliability depends on the trier of fact’s ability “to rationally evaluate the truth and accuracy of the hearsay statement”: Bradshaw, at para. 28. There must be “adequate substitutes” for the traditional procedural safeguards around in-court testimony to enable an assessment of the truth and accuracy of the statement to be undertaken: Charles, at para. 46. Usually, procedural reliability requires “[s]ome form of cross-examination of the declarant”: Charles, at para. 46. Substantive reliability, on the other hand, means the statement is inherently trustworthy given the circumstances it was made in and in light of the other evidence: Charles, at para. 47. The standard for substantive reliability is high, as it requires the trial judge to find that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at para. 31, citing Khelawon, at para. 49.
(3) The trial judge’s assessment of necessity
[32] The appellant’s challenge to the trial judge’s finding that the hearsay evidence was necessary focuses on the conduct of the voir dire. Specifically, the appellant argues that it was not appropriate for the trial judge to decide that the evidence was necessary without the direct participation of the complainant. As I explain below, I agree with the appellant that the trial judge erred in finding that she could and should decide the issue of necessity without the benefit of hearing from the complainant directly.
[33] In R. v. Parrott, 2001 SCC 3 (CanLII), 2001 1 SCC 3, [2001] 1 S.C.R. 178, the Supreme Court considered the admission of hearsay evidence from a complainant who had Down syndrome. In that case, the respondent was alleged to have kidnapped and sexually assaulted the complainant. After the complainant was found, she pointed to her injuries and made various statements to the police and medical practitioners, including that “Man did it, bad man, man in car”. On a voir dire, the Crown simultaneously sought a finding that the complainant did not have the capacity to testify and to have the hearsay statements the complainant made to the police and health care practitioners admitted for the truth of their contents. There was conflicting expert evidence on the issue of whether the complainant was capable of testifying in court. The majority of the Supreme Court held that the trial judge erred in finding that the hearsay evidence was necessary without the benefit of the complainant’s participation in the voir dire. The court based this conclusion on several considerations which are relevant in this case.
[34] Trial judges should base their voir dire decisions on direct observations of the complainant, absent exceptional circumstances such as evidence that calling the complainant to testify would cause trauma: at paras. 72, 79. The court should not excuse the complainant by inferring a risk of trauma but, instead, receive expert evidence on that point: at para. 79; see e.g., R. v. R.R. (2001), 2001 CanLII 27934 (ON CA), 159 C.C.C. (3d) 11 (Ont. C.A.), at paras. 36, 40, aff’d 2003 SCC 4, [2003] 1 S.C.R. 37; R. v. Nicholas (2004), 2004 CanLII 13008 (ON CA), 70 O.R. (3d) 1 (C.A.), at paras. 86, 94, leave to appeal refused, [2004] S.C.C.A. No. 225.
[35] The court stated, at para. 73, that “[c]ompassion for the complainant must be balanced against fairness to the [accused].” Therefore, the decision regarding whether it is necessary to receive hearsay evidence should not be driven solely by compassion for the complainant.
[36] As the court noted at para. 72, judges have various tools at their disposal to help put witnesses at ease and to avoid embarrassing them:The complainant in this case could have been examined before the trial judge in a format that would have attempted to put her at ease. The trial judge could have ensured that nothing, including questions put to her by opposing counsel, would be used to demean or embarrass her. It is possible that, as anticipated by Dr. Gillespie, the complainant might have been incoherent or otherwise unable to communicate whatever she recalled of the events in question. On the other hand, it is also possible that she might, as suggested by Dr. Morley, have been able to give “some account of what happened to her”. In the absence of any suggestion of potential trauma or other exceptional circumstances, I think the [accused] was entitled to have this issue determined on the basis of the evidence of the complainant rather than on the conflicting opinions, however learned, of her various doctors. [37] Only in exceptional cases would it be appropriate for a judge not to hear from a witness directly before deciding that hearsay evidence is necessary. As the court explained, at para. 77:In my view, if the witness is physically available and there is no suggestion that he or she would suffer trauma by attempting to give evidence, that evidence should generally not be pre-empted by hearsay unless the trial judge has first had an opportunity to hear the potential witness and form his or her own opinion as to testimonial competence. I say generally because there may arise exceptional circumstances where a witness is available and not called and the out-of-court statements may be nevertheless admitted … The point is that there are no circumstances put in evidence here that would justify such an exceptional procedure. [Emphasis in original.] [38] Finally, at para. 80, the Supreme Court emphasized that there should be no presumption that adults with cognitive disabilities are not capable of testifying and that their hearsay evidence is thereby presumptively necessary:[T]he Court should not be quick to leap to the assumption that a person with mental disabilities is not competent to give useful testimony. Trauma should not be presumed, not only because such a presumption would deprive the accused of the ability to observe and cross-examine the witness, but also because stereotypical assumptions about persons with disabilities should be avoided… Persons with disabilities should not be underestimated. [Emphasis added.] ....
[47] As the Supreme Court explained in Parrott, at para. 73, in the context of that case, the appellant faces a serious charge with serious consequences. He was confronted with out-of-court statements from the complainant taken in his absence and on which he did not have an opportunity to cross-examine. The court must be very cautious before truncating the appellant’s right to confront the evidence in court through direct observation and cross-examination.
[48] In Parrott, at para. 77, the Supreme Court recognized that there may be exceptional circumstances aside from a risk of trauma where a trial judge could decide the issue of necessity without the benefit of the complainant’s participation on a voir dire. The Supreme Court was not prepared to “close the door to this possibility”, but it did not elaborate on what those other exceptional circumstances could be. Necessarily, each case must be decided on its own facts. However, at the very least, a trial judge who decides the issue of necessity without hearing directly from the complainant should provide a compelling rationale to “justify such an exceptional procedure”: Parrott, at para. 77. For example, it may be evident in some cases that the complainant is unable to understand questions or communicate at all.
....
[56] .... when assessing substantive reliability to establish threshold reliability, the case law allows for consideration of factors such as timing, demeanour, personality, the absence of any reason to fabricate and the likelihood of the declarant’s knowledge of the event apart from its occurrence: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at p. 547; R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 54.
....
(5) Conclusion on the issue of the hearsay evidence
[60] It was an error for the trial judge to find that the hearsay evidence was necessary without the benefit of hearing directly from the complainant. While I agree with the trial judge’s conclusion on the issue of threshold reliability, a new trial is nevertheless required.
[61] This is an unfortunate outcome. It may well turn out that a trial judge decides that the hearsay evidence is necessary after hearing directly from the complainant. However, in balancing compassion for the complainant against fairness to the appellant, I am not persuaded that this was one of those exceptional cases where it was appropriate for the trial judge to find that the hearsay evidence was necessary without the complainant’s participation on the voir dire. . Krmpotic v. Thunder Bay Electronics Limited
In Krmpotic v. Thunder Bay Electronics Limited (Ont CA, 2024) the Ontario Court of Appeal considered evidence of disability, particularly whether medical evidence is necessary:[24] The appellants assert that the trial judge’s finding of physical incapacity was an error in principle because it was made in the absence of medical evidence to that effect. They rely on two cases for this assertion: Lemesani v. Lowery’s Inc., 2017 ONSC 1808, aff’d on other grounds 2018 ONCA 270; and Sinnathamby v. The Chesterfield Shop Ltd., 2016 ONSC 6966.
[25] I do not see these cases as establishing the general principle that physical incapacity can only be established by expert medical evidence. In any event, Lemesani and Sinnathamby are readily distinguishable from the present case. In Lemesani and Sinnathamby, the claims related to non-physical injuries that were unsupported by any evidence. In the present case, the claims relate to physical injuries for which there was evidence. Mr. Krmpotic’s medical history included numerous back and knee problems, and four different back injuries sustained at work, ultimately resulting in the need for back surgery. Mr. Krmpotic’s evidence on his physical limitations was supported by the evidence of his wife and son. And all of this was buttressed by the evidence of Mr. Krmpotic’s attempt at re-employment in November 2017 which failed due to physical incapacity.
|
