R. v. Khan (1990), 41 O.A.C. 353 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Abdullah Khan (appellant) v. Her Majesty The Queen (respondent)
(20963)
Indexed As: R. v. Khan
Supreme Court of Canada
Lamer, C.J.C., Wilson, Sopinka, Gonthier and McLachlin, JJ.
September 13, 1990.
Summary:
The accused physician was charged with sexually assaulting a four year old girl in his office. In response to a casual question from her mother 15 minutes after they left the accused’s office, the girl told what the accused had done. The trial judge acquitted the accused after ruling that the girl was incompetent to testify and that the mother’s statement about what she said was inadmissible as hearsay. The Crown appealed.
The Ontario Court of Appeal, in a judgment reported 27 O.A.C. 142; 42 C.C.C.(3d) 197; 64 C.R.(3d) 281, allowed the appeal, set aside the acquittal and ordered a new trial. The Court held that the trial judge erred in (1) holding that the girl was not competent to give unsworn testimony and (2) in excluding from evidence the mother’s statement about what the girl said. The accused appealed.
The Supreme Court of Canada dismissed the appeal. The court held that the girl was competent to testify unsworn, where she appeared to understand the nature of lying and the need to tell the truth. The court held further that the mother’s statement about what the girl told her was admissible as a child’s hearsay statement about a crime, which was both reasonably necessary and reliable.
Evidence – Topic 1712
Hearsay rule – Exceptions – Spontaneous declarations – What constitute – A four year old girl was allegedly sexually assaulted when left alone for a few minutes with her physician – In response to a casual question from her mother fifteen minutes after leaving the physician’s office, the girl told the mother that the physician stuck his penis in her mouth – The Supreme Court of Canada held that the mother’s statement of what the girl said was admissible, not as a spontaneous declaration (it was not contemporaneous), but as a child’s hearsay statement about a crime, which was both reasonably necessary and reliable – See paragraphs 16 to 34.
Evidence – Topic 1751
Hearsay rule – Exceptions – Children’s statements – General – [See
Evidence – Topic 1712
].
Evidence – Topic 5544
Witnesses – Competency – Child of tender years – The Supreme Court of Canada held that a four year old girl was competent to testify unsworn about an alleged sexual assault on her, where she appeared to understand the nature of lying and the need to tell the truth – See paragraphs 9 to 15.
Cases Noticed:
R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), affd. [1966] S.C.R. v, dist. [para. 11].
Ares v. Venner, [1970] S.C.R. 608, appld. [para. 19].
Myers v. Director of Public Prosecutions, [1965] A.C. 1001, refd to. [para. 20].
Official Solicitor v. K., [1963] 3 All E.R. 191, consd. [para. 25].
D.R.H. v. Superintendent of Family and Child Services (1984), 41 R.F.L.(2d) 337 (B.C.C.A.), consd. [para. 25].
R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 25].
M.(W.) v. Prince Edward Island (Director of Child Welfare) (1986), 60 Nfld. & P.E.I.R. 32; 181 A.P.R. 32; 3 R.F.L.(3d) 181, consd. [para. 26].
MacPhail v. Prince Edward Island (Director of Child Welfare) – see M.(W.) v. Prince Edward Island (Director of Child Welfare).
Foote v. Foote, [1988] B.C.J. No. 278 (C.A.), consd. [para. 27].
R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31, appld. [para. 28].
Statutes Noticed:
Canada Evidence Act, R.S.C. 1970, c. E-10, sect. 16 [paras. 6, 9].
Authors and Works Noticed:
McCormick on Evidence (3rd Ed. 1984), p. 859 [para. 22].
Wharton’s Criminal Evidence (13th Ed. 1970), pp. 84, 90 [para. 23].
Counsel:
Robert J. Carter, Q.C., and Larry B. O’Brien, for the appellant accused;
Kenneth L. Campbell, for the respondent Crown.
Solicitors of Record:
Carter, McCombs and Minden, Toronto, Ontario, for the appellant;
The Ministry of the Attorney General for Ontario, Toronto, Ontario, for the respondent.
This case was heard on November 3, 1989, at Ottawa, Ontario, before Lamer, J. (now C.J.C.), Wilson, Sopinka, Gonthier and McLachlin, JJ., of the Supreme Court of Canada.
On September 13, 1990, McLachlin, J., delivered the following judgment for the Supreme Court of Canada:
