Mr. S.S. was charged with sexual assault and sexual interference against his niece E.B who was 6-8 years old at the time of the allegations.

The crux of the crown’s case was E.B.’s unsworn video statement. E.B promised to tell the truth when she gave her police statement, yet at the preliminary hearing, she was unable to recall giving a statement to police or any details surrounding the allegations, and thus defence counsel was not able to cross-examine her.

The Crown argued that the statement met the necessity and reliability thresholds and should be admitted as an exception to the hearsay rule at trial. The trial judge found that the child’s evidence should be treated differently pursuant to R v W(R), [1992] 2 SCR 122, and that her video evidence detailing the assaults met the hearsay exception. The trial judge admitted the video statemen, and SS was convicted of both charges.

After conviction, the Crown successfully sought to declare S.S. a dangerous offender, and the trial judge added ten years of supervision following the completion of S.S.’s ten-year prison sentence.

SS’s appeal was heard by the panel of Feldman, Thorburn, and MacPherson JJA at the Court of Appeal for Ontario. The majority decision written by Feldman J. allowed S.S.’s appeal, set aside the conviction and entered an acquittal on the two charges. The majority held that the trial judge erred in finding that the statement met threshold reliability for admittance. The Appeal Court found that the trial judge erred in making a positive finding that the complainant did not have a motive to fabricate these allegations. Ultimately, there were several reliability concerns with the statement that could not meaningfully be tested by cross-examination.

MacPherson JA in dissent would have dismissed the appeal. He found that the unsworn statement was inherently trustworthy as E.B. had given explicit details of the acts underlying the charges when she gave her police statement, and a motive to fabricate is only one of the factors that support reliability.

The Crown appealed to the Supreme Court of Canada as of right.