R. v. M.N.
IN THE MATTER OF the Young Offenders Act, R.S.C. 1985, c.
Her Majesty the Queen, and
 O.J. No. 2221
File No. 00/Y05066
Ontario Court of Justice
Youth Court – Oshawa, Ontario
Oral judgment: February 21, 2002.
Charges: S. 271 Criminal Code – Sexual Assault S. 151 Criminal Code – Sexual Interference
S. Nielsen, for the Crown.
T. Pain, for the young person.
¶ 1 STONE J. (orally): This is a so-called Khan Application, brought by the Crown, seeking admission of the video taped statement and oral utterances of T.J., a child now of about five years, as his evidence. The Application is brought, and called a Khan Application, pursuant to the watershed case of R. v. Khan (1990), 59 C.C.C. (3d) 92 (Supreme Court of Canada).
¶ 2 T.J. is the alleged victim of a sexual assault and sexual interference perpetrated by the accused. The Crown is obliged to establish necessity and reliability, each on a balance of probabilities. The necessity of adducing these utterances, at least for the present Application, arises out of the information that T.J. resides in the area of New York City with his mother, M.J. I have the evidence of Constable Kalonka, given at 12:07 p.m. that at 11:50 a.m. today he reached M.J. by telephone in New York and was told she was working, did not have leave that she could take to attend this trial (which it is noted is currently in day three) so she would not be attending the trial and she would not let T.J. attend without her.
¶ 3 On or about November 20, Detective Hoard had spoken with M.J. about a release of medical information, but Detective Hoard had not provided a trial date as she herself did not know it at that time. I am informed, and I assume the court documents would support, that this trial date was set approximately last July, that is in July 2001. Of course neither T.J. nor M.J. is subject to a Canadian subpoena, even if T.J. was of age.
¶ 4 This is the only evidence I have before me of efforts to secure the attendance of T.J. I have no information about his ability to testify if he was here, but that is another issue. I am of the view that the mere fact that someone is out of the country, or province, or region on the trial date does not raise a Khan issue and prove necessity. While I would not hold that the Crown should in every case seek to take commission evidence, or to go to extreme measures, surely there is some need to show reasonable diligence to try to secure the attendance of the witness.
¶ 5 It is important to remember that if a Khan application succeeds, the defence loses the critical ability to cross-examine the witness. A Khan application should not therefore be brought lightly. I am not saying of course that the one before the court was brought lightly. It may well be the Crown counsel or the Victim Witness Assistance Program personnel in this area had regular contact with M.J. and gave her timely information as to the trial date. They may have urged her to come and she may have refused for a number of reasons. I have no evidence of that.
¶ 6 In the case of R. v. McCrory,  B.C.J. No. 1622 per Kitchen, J. at p. 15, citing R. v. Pilcher,  B.C.J. No. 3185 per de Villiers, J. at paragraph 34, that court cited the law that it considered appropriate in matters somewhat along the lines of today’s situation. In the McCrory case, an 11-year-old girl had allegedly been taken by three apparent residents of Oregon, U.S.A. to Vancouver for purposes of prostituting her. She was located, apparently returned to the United States, and was in foster care at the time the trial of the three accused came on. There was evidence given to the trial court that the authorities had sought to have the 11-year-old girl returned to Vancouver so that she could give evidence. It is obvious that her evidence would have been highly material. It appears that when the effort was made, the foster mother of the 11-year-old took the position that she would not bring the girl to Vancouver, that she did not want the girl to return to Vancouver to testify, and indeed she would not even allow the police to talk to the potential witness. That apparently flowed out of concern with respect to the further victimization, or the setting back as it were, of the alleged victim. The court in McCrory was of the view that the following quote from Pilcher was apt: “I hold that the admission of such evidence is reasonably necessary where the party seeking its admission satisfies the court that the witness cannot, with the exercise of due diligence, be found and brought to court.” Then Judge Kitchen adds, “That statement is a most sensible articulation of the onus on the Crown in such cases”.
¶ 7 While the fact situation in the case before Judge Kitchen was a striking one and while some could argue Judge Kitchen set the bar fairly high, the law he applied was appropriate and I adopt it as correct. I do not feel that I have the evidence before me that would allow me to say on a balance of probabilities that the admission of these statements by T.J. is necessary in order to have his evidence. I have insufficient evidence of what efforts were made to secure his attendance. As I say, those efforts may have been made, but I don’t have that evidence before me here and, as I say, it is not merely that someone is not present that raises a Khan Application. In my view, Khan Applications should be brought with care and in circumstances where the very important right of the defence to cross-examine should be, in the greater interest of the administration of justice, subverted to the need to bring the evidence of the witness before the court. I just don’t have that evidence that this is such a case.
¶ 8 I need not consider the question of reliability in light of the position I have taken on necessity. The Application before the court will be dismissed.