R. V. Khan - Background

Background

In March 1985, Mrs. O and her three and half year-old daughter T went to Dr. Khan for an examination. Khan first examined the daughter in front of her mother, then, while O was changing into hospital gowns in the other room, Khan was alone in his office with T for five to seven minutes. Roughly fifteen minutes after leaving Khan’s office the child described to her mother how Khan had sexually assaulted her. A wet spot was found on the sleeve of T's jogging suit, which was later examined by a forensic biologist who determined that the fluid constituted a mixture of semen and saliva. Khan was charged with the assault.

At trial, the judge held that the child was not competent to give unsworn testimony and that he would not admit the statements made by the child to her mother about the assault as it was hearsay and could not fall into the “spontaneous declaration” exception as it was not contemporaneous. On the basis of this finding, Khan was acquitted.

On appeal, the Court of Appeal found that the trial judge had been too strict in the consideration of both testimony and the hearsay. The acquittal was overturned and a new trial ordered.

The issues before the Court were:

1. Did the Court of Appeal err in concluding that the trial judge misdirected himself in ruling that the child witness was incompetent to give unsworn testimony?
2. Did the Court of Appeal err in holding, contrary to the ruling of the trial judge, that a "spontaneous declaration" allegedly made by the child to her mother after the alleged sexual assault was admissible?