Crown cannot tender hearsay evidence from disabled complainants without calling the complainant or expert evidence on the voir dire

R v Oloko, 2025 ONCA 894: The Court of Appeal for Ontario affirms that when the Crown applies to tender hearsay evidence from a complainant with disabilities affecting their capacity to communicate, "compassion for the complainant must be balanced against fairness to the accused". Unless the Crown tenders expert evidence to establish that cross-examination would cause trauma, the complainant must be produced on the hearsay voir dire and made available for cross-examination before the necessity branch of the hearsay test can be made out.

The appellant was a male personal support worker convicted of sexually assaulting a woman with Down's syndrome in a group home. The assault was discovered when the complainant disclosed it to three daytime PSWs the following day. The complainant could communicate through words and gestures, but not full sentences. The Crown applied to tender the complainant's hearsay statements to the three daytime PSWs as its case against the accused.

The trial judge found that the hearsay statements were necessary based on (1) evidence from the daytime PSWs about her capacity to communicate and (2) a review of the police statements in which the complainant appears unable to discuss the allegations. The Crown did not call the complainant on the hearsay voir dire.

Favreau JA held that the trial judge erred in law because she found that the hearsay was necessary without hearing from the complainant and without expert evidence that cross-examination would cause her trauma. Applying the Supreme Court's 2001 decision in Parrott, Favreau JA affirmed that "[o]nly in exceptional cases would it be appropriate for a judge not to hear from a witness directly before deciding that hearsay evidence is necessary": see para 37. People with disabilities "should not be underestimated"; trial judges must not presume that persons with cognitive disabilities are incapable of testifying about allegations of abuse. The conviction was overturned and a new trial was ordered.

I would be surprised if the Crown did not take this as an opportunity to seek leave and ask the Supreme Court to revisit Parrott. That decision has been the subject of significant academic criticism over the last two decades and the Wagner court has been at least as interested in fairness to complainants as fairness to the accused. While the Crown did not tender expert evidence, it is certainly arguable that there was other evidence from which the trial judge could reasonably conclude that the complainant would not have been able to describe her assault in open court. This will certainly be one to keep an eye on in 2026.