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Ontario’s Court of Appeal Redraws the Hearsay Line
In R. v. M.L., 2026 ONCA 339, the Court of Appeal sets aside a sexual interference conviction after finding a trial judge improperly admitted a three-year-old’s out-of-court statement — and asks hard questions about suggestion, spontaneity, and what “threshold reliability” really demands.
Released: May 12, 2026 · Dawe, Miller and Wilson JJ.A.
Joseph Neuberger, Michael Bury and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
OUTCOME · Appeal allowed — conviction on Count 2 set aside, new trial ordered
01 • BACKGROUND
On September 3, 2018, a young mother bathed her three-year-old daughter, A.J., shortly after the child returned from several weeks in the care of her maternal grandfather, the appellant M.L. During the bath, A.J. spontaneously told her mother that “her pretty hurt” — pointing to her vagina when her mother asked what she meant. What followed was a conversation that would ultimately find its way into a criminal trial, upend a conviction, and produce one of the most consequential hearsay rulings from the Court of Appeal in recent memory.
M.L. was charged with two counts of sexual interference: one relating to his older daughter, S.L., who alleged childhood sexual abuse spanning several years; and one relating to A.J. The jury convicted M.L. on the charge involving S.L. (Count 2) but could not reach a verdict on the charge involving A.J. (Count 4). Count 4 was stayed. The conviction on Count 2 was the subject of this appeal.
The connection between A.J.’s statement and the S.L. conviction was critical: the trial judge had instructed the jury that it could use the evidence on each charge as similar fact evidence across counts. A.J.’s hearsay statement, though directly relevant only to Count 4, could therefore have influenced the jury’s finding on Count 2 as well.
| Count 2 — S.L. | Count 4 — A.J. |
|---|---|
| Historical sexual abuse; the older daughter testified about repeated incidents when she was between 5 and 8 years old. The jury returned a guilty verdict. | The granddaughter, aged 3 in 2018. Evidence consisted entirely of A.J.’s out-of-court statement to her mother. The jury was hung; count stayed. |
| The Hearsay Question Was A.J.’s statement to her mother sufficiently reliable to be admitted for its truth under the principled exception to the hearsay rule? |
Why It Mattered for Count 2 The jury was instructed it could use A.J.’s statement as similar fact evidence when assessing the charge relating to S.L. on Count 2. |
02 • THE STATEMENT
The details of what A.J. said — and how she said it — are at the heart of the case. After A.J.’s initial complaint about soreness, her mother, a nurse, took A.J. into the bathroom to examine her. What unfolded was a series of exchanges in which A.J. used a mixture of words and physical gestures.
A.J. identified her vagina using the word “pretty,” which she attributed to “Papa” (the appellant). When her mother asked whether she had any “special secrets with Papa” that she wasn’t supposed to tell mommy, A.J. — described as shy and reluctant — eventually nodded and said yes. She then made what her mother interpreted as a licking gesture. In response to a direct question from her mother asking whether “Papa” had also licked her, A.J. said yes and pointed to her vagina and buttocks. When asked where this happened, A.J. pointed to the bathtub.
Notably, A.J.’s mother also observed that A.J.’s vulva appeared “very red” and applied diaper rash cream, though A.J. was still wearing diapers at night.
03 • THE LEGAL FRAMEWORK: HEARSAY AND THE PRINCIPLED EXCEPTION
Hearsay — an out-of-court statement tendered for the truth of its contents — is presumptively inadmissible in Canadian criminal proceedings. The principled exception, developed through cases like R. v. Khelawon, 2006 SCC 57, permits hearsay to be admitted where the twin requirements of necessity and threshold reliability are established.
Necessity was conceded here: by the time of trial in 2023, A.J. was eight years old and had no memory of events from when she was three. The dispute was entirely about threshold reliability.
The governing analytical framework comes from R. v. Bradshaw, 2017 SCC 35, in which Justice Karakatsanis articulated a four-step inquiry:
THE BRADSHAW FOUR-STEP INQUIRY FOR THRESHOLD RELIABILITY
| 1 | Identify the material aspects of the hearsay statement tendered for its truth. |
| 2 | Identify the specific hearsay dangers present in the particular circumstances of the case. |
| 3 | Consider alternative, even speculative, explanations for why the statement was made. |
| 4 | Determine whether corroborative evidence rules out those alternatives such that the only remaining likely explanation is that the declarant was truthful and accurate. |
Central to the inquiry, Bradshaw emphasizes, is the trial judge’s “preoccupation” with whether contemporaneous cross-examination of the declarant would have added anything to the trial process. If it would — if there are live, unresolved questions that only A.J. could have answered — that is a powerful signal that the hearsay dangers have not been adequately addressed.
04 • WHERE THE TRIAL JUDGE WENT WRONG
Justice Dawe, writing for a unanimous court, identified several errors in the trial judge’s application of the Bradshaw framework.
The trial judge failed to grapple with the possibility that A.J.’s mother may have misinterpreted A.J.’s non-verbal licking gesture. A.J.’s mother testified that she understood the gesture as “the gesture for licking Papa’s penis” — but A.J. never verbally said this. The inference was entirely the mother’s own. A child sticking out her tongue could mean many things.
A.J.’s initial comment was indeed spontaneous. But the rest of the statement was not. It was A.J.’s mother who introduced the concept of “special secrets,” who suggested A.J. might be afraid of getting in trouble, and who directly asked A.J. whether Papa had “licked” her.
The trial judge dismissed the possibility that A.J. was “joking or playing,” but failed to engage with a more plausible alternative: that a very young child, sensing her mother’s distress and pressed to produce a “special secret,” may have constructed a story that she thought would satisfy her mother — one built on the cues her mother was already providing.
“It was A.J.’s mother, not A.J. herself, who first introduced into the conversation … that A.J. might have ‘other special secrets with Papa that she wasn’t allowed to tell mommy’; … that ‘Papa’ had also licked A.J.”
— Dawe J.A., at para. 33
The Court also drew a meaningful contrast with earlier cases. In R. v. Khan, [1990] 2 S.C.R. 531, the complainant’s statement had been corroborated by physical evidence. In R. v. S.S., 2022 ONCA 305, statements were elicited using non-leading questions. Neither condition was present here.
05 • THE SIGNIFICANCE FOR COUNT 2
One might ask: if A.J.’s statement was relevant only to Count 4 (which resulted in a hung jury), why does it matter for the conviction on Count 2? The answer lies in the similar fact instruction. The jury had been told it could treat evidence on one count as probative of the other, and the Court of Appeal found it “reasonably possible that at least some jurors may have relied on A.J.’s hearsay statement as similar fact evidence” in convicting M.L. on Count 2.
That is a low threshold — and intentionally so. Once improperly admitted evidence has been placed before a jury with a permissive instruction as to its use, it is not enough to speculate that the jury probably disregarded it. A new trial was required.
06 • TAKEAWAYS FOR PRACTITIONERS
This decision offers several clear lessons for those working in criminal courts, particularly in cases involving child complainants and hearsay statements.
| 1 | Spontaneity is not a binary condition. A statement that begins spontaneously can quickly become a product of suggestion. Courts must assess the disclosure as a whole, not just its opening moments. The “unprompted” label cannot attach to a statement that was materially shaped by a caregiver’s leading questions. |
| 2 | Non-verbal evidence requires explicit analysis. Where a key part of a hearsay statement is conveyed through gesture, and where the caregiver’s interpretation of that gesture is doing significant inferential work, the trial judge must squarely grapple with the ambiguity. A child sticking out her tongue is not self-evidently a description of sexual conduct. |
| 3 | The “unknown to a child” inference must be used with care. Trial courts sometimes reason that a child’s description of sexual acts demonstrates reliability because children cannot fabricate what they do not know. That reasoning is less compelling where the statements were elicited by leading questions that themselves described or implied the relevant conduct. |
| 4 | Contemporaneous cross-examination remains the touchstone. The Bradshaw test asks what cross-examination would have revealed. In a case with active hearsay dangers — misinterpretation of gesture, suggestive questioning, a very young declarant — the honest answer is often “quite a lot.” Where that is true, threshold reliability has not been established. |
07 • CONCLUSION
The Court of Appeal’s decision in R. v. M.L. is not a ruling about whether abuse occurred. It is a ruling about the evidentiary standard a criminal trial must clear before a jury is permitted to act on out-of-court words attributed to a three-year-old. The Bradshaw framework is exacting for a reason: where a declarant cannot be cross-examined, corroborative safeguards must carry the load that cross-examination would otherwise bear. When they fall short — when hearsay dangers remain live and unexplained — the presumptive rule against hearsay must prevail.
A new trial has been ordered on Count 2. The broader record in this matter, and the difficult human circumstances that gave rise to it, remain unchanged.
Note: This case is subject to a publication ban pursuant to s. 486.4 of the Criminal Code. The names of complainants and the accused are suppressed in the original decision and are not used here. This commentary addresses only the legal principles discussed in the publicly released reasons for judgment.
Case Commentary | R. v. M.L., 2026 ONCA 339 | Court of Appeal for Ontario | Released May 12, 2026
This blog post is a commentary on a publicly released judicial decision and is provided for informational purposes only. It does not constitute legal advice.
