R. v. Wills, 2016 ONCA 965 the Court of Appeal for Ontario held that that trial judge had erred in admitted the child complainants’ hearsay statements about the alleged offences as evidence at trial based on a finding that
1. the children would be unlikely to provide a coherent and comprehensive account of the events due to a lack of present recollection, and
2. because having to testify in court would cause them undue trauma.
The trial judge made these determinations based on evidence from the complainants’ parents and a video recording of brief police interviews with each child shortly before trial and about a year after their initial disclosures.
Unless the trial judge has had the opportunity to see the child’s reaction to questioning in the courtroom setting, “it will be a rare case … where the Crown can establish necessity based on the potential of psychological trauma without a proper assessment of the child by a qualified expert”.
R. v. S.M.R. (2004), 24 C.R. (6th) 185 (Ont. C.A.), at para. 45.
In R. v. Wills, however, the trial judge did not have the opportunity of seeing the children testify. Their parents’ evidence, which consisted primarily of observations of changes in each child’s behaviour, was simply not sufficient to displace the need for a proper assessment by a qualified expert.
R. v. Wills, 2016 ONCA 965 at para 20.
Lack of present recollection
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.
R. v. Parrott,
 1 S.C.R. 178,2001 SCC 377, 2001 SCC 3 (CanLII) at para 77
R. v. Wills the trial judge determined that the child complainants would be unlikely to provide a coherent and comprehensive account of the events due to a lack of present recollection based on evidence from their parents and a brief video recording that did not probe the complainant’s recollection or ability to speak about the incidents.
The trial judge erred in concluding that the necessity criterion for admission of evidence based on the principled exception to the hearsay rule had been met. The complainants’ ability to communicate the evidence, including their ability to recollect the events, ought to have been explored more deeply in a voir dire.
R. v. Wills, 2016 ONCA 965 at para 21.