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.

On the first issue, McLachlin noted that the trial judge improperly applied section 16 of the Canada Evidence Act that gave the conditions under which a child can testify.

For a child to testify under section 16, the judge must only determine if the witness has sufficient intelligence and an understanding of the duty to tell the truth.

However, rather than have the issue disposed at this juncture, McLachlin went down a different route, changing the course of hearsay law for years to follow.

In the instant case, the child, having aged considerably since the events, was unable to remember what happened, thus making the statement necessary.