Court of Appeal for Ontario

Date: 2004-12-13

Docket: C41492

Before: Doherty, Laskin and Armstrong JJ.A.

Between:

Her Majesty the Queen (Respondent)

• and -

Bruce Moonias (Appellant)

Counsel: Clayton C. Ruby for the appellant Brian McNeely for the respondent

Heard: December 6, 2004

On appeal from the conviction entered by Justice Helen Pierce of the Superior Court of Justice on November 25, 2003 and the sentence imposed on February 9, 2004.

By the Court:

[1] The appellant was convicted of sexual assault and sentenced to two years less a day imprisonment. He appealed his conviction. At the conclusion of oral argument, this court allowed the appeal, quashed the conviction and entered an acquittal with reasons to follow.

I

[2] The complainant, a 22 year old First Nations woman, lived in an isolated small native community in north western Ontario. The appellant, also an Aboriginal, lived in the same community. It was alleged that the appellant sexually assaulted the complainant at a drinking party held at his father’s home.

[3] In her testimony at trial, the complainant described, albeit with considerable difficulty, the events leading up to the alleged assault and the outset of that assault. The complainant then broke down on the witness stand and could not continue her testimony. The proceedings were adjourned. When the trial recommenced about two months later, the complainant would not enter the courtroom to continue her evidence. The court was advised that the complainant was terrified of the appellant. Despite various efforts to accommodate the complainant so that she could continue her testimony, she would not re-enter the courtroom while the appellant was there. Closed circuit video was not available in the courtroom.

[4] The Crown took the position that the complainant was unable to testify and brought a “Khan” application to admit a videotaped statement given by the complainant to the police about three months after the alleged assault.[^1] In the videotaped statement, the complainant described the alleged attack on her by the appellant. She also told the police that the appellant had been continually intimidating and threatening her since the assault.

[5] After a voir dire, the trial judge held that the videotaped statement met the necessity and reliability requirements and was admissible for the truth of its contents without further testimony by the complainant. The Crown tendered the videotape and closed its case.

[6] The appellant testified. He admitted that he knew the complainant, just like he knew all of the other people in the small community where he lived. He denied that any of the events described by the complainant in her videotaped statement occurred. He was adamant that he had never assaulted the complainant and had not been at a party with her as she alleged.

[7] The Crown’s case depended on the contents of the videotaped statement. The complainant’s viva voce evidence offered some evidence of an assault, but no evidence of a sexual assault. Ultimately, the trial judge accepted the contents of the videotaped statement as true, rejected the appellant’s evidence, and concluded that the appellant’s guilt had been established beyond a reasonable doubt.

II

[8] The appellant submits that the videotaped statement should not have been admitted as the Crown did not demonstrate on the balance of probabilities that its admission was reasonably necessary, or that the statement was sufficiently reliable to warrant its admission into evidence.

[9] The trial judge’s finding that the statement was reasonably necessary was based on her conclusion that the appellant, because of her fear, was unable to give evidence in court. The trial judge’s finding appears at para. 38 of her reasons:

Is the admissibility of the videotape necessary? The emotional condition of the complainant on the witness stand when she began to give evidence, and at the continuation of the trial, prevented her from testifying. In that sense, her evidence is unavailable to the trier of fact, in the classic sense described by Wigmore and adopted by the Supreme Court of Canada.

[10] The trial judge’s finding that the emotional condition of the complainant prevented her from continuing her testimony was supported by the trial judge’s observations of the complainant when she testified on the first day of the trial, the testimony of a support person who attended court with the complainant, and the Crown’s unchallenged assertions that he had made his best efforts to get the complainant to come into the courtroom and testify, but that she was in no emotional state to do so. It was open to the trial judge to conclude that the complainant was effectively unavailable as a witness and that the reasonable necessity requirement for the admission of the videotaped statement had been met.

[11] The trial judge also found that the statement cleared the threshold reliability prerequisite to admissibility. In describing reliability as it related to admissibility, the trial judge referred to R. v. Smith (1992), 1992 79 (SCC), 75 C.C.C. (3d) 257 at 270, where Lamer J. said:

The criterion of “reliability” … is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, that is a circumstantial guarantee of trustworthiness is established [emphasis added]. …

[12] The essence of the trial judge’s ruling on the reliability of the videotaped statement is found in paras. 40 and 41 of her reasons:

Does the videotaped statement meet the threshold test of reliability? It is not under oath, although the Crown submits it would be sufficient to ground a K.G. B. application, which is not before the court. The statement does make reference to the character of the accused. While the Crown submits this is unfortunate, it should not be determinative.

Reliability is a function of circumstances. the complainant, on the evidence, is in control of her faculties when the videotaped statement was taken. Though she is crying throughout the taping, the words recorded are those of the complainant. Such a recording was not available to the court in Khan. The questions put to the complainant are not leading, but are open-ended, such as would be appropriate to examination in chief during trial. Her account is clearly in her own words, much of it unprompted. The court can observe her demeanour. There is no indication of evasiveness, or loss of memory. The statement is taken closely enough in time to the events complained of that they would be expected to be fresh in J.S.’s mind.

[13] We think the reasons reveal three errors. First, although the trial judge referred to the absence of an oath when the videotaped statement was taken, she did not refer to the absence of any attempt to bring home to the complainant the seriousness of the occasion, or the consequences which could befall the complainant if she was untruthful in the course of giving the videotaped statement. It should have been made clear to the complainant that anything she said could lead to serious criminal charges and that it was of the utmost importance that she tell the truth. Similarly, the complainant should have been told that she risked penal consequences if she lied in the statement.

[14] Secondly, while the trial judge made reference to the passage of three months between the event and the statement as not impairing the complainant’s memory, she did not allude to the absence of any evidence to explain how the complainant came to give the videotaped statement when she did. There was no evidence as to what prior contact the complainant had with the police or how she came to make the allegations she did. The absence of any evidence as to the events leading up to the giving of the statement had to have a negative impact on the Crown’s attempt to demonstrate that the statement was sufficiently reliable to warrant its admission.

[15] Thirdly, the trial judge did not refer to the evidence, found in the videotaped statement, that the complainant potentially had a strong motive to falsely accuse the appellant of the crime. In the course of her videotaped statement, the complainant made it clear that she intensely disliked the appellant because she blamed him for the suicide of a friend. These statements by the complainant were admissible as evidence of her state of mind at the time the statement was given. The statements suggested a strong animosity towards the appellant that could provide a powerful motive to fabricate the allegation against him. The trial judge made no reference to this part of the statement. We think it should have had a significant impact on her assessment of whether the statement cleared the threshold reliability hurdle.

[16] In our view, when all of the relevant factors are considered, the Crown could not meet the burden of demonstrating that the circumstances in which the statement was made were such as to substantially eliminate the risk that the statement was unreliable. Put differently, the Crown did not show that the circumstances surrounding the taking of the statement were sufficiently indicative of the reliability of the statement to justify admitting an untested statement which was for all intents and purposes the entire case for the Crown. The statement should have been excluded.

[17] As acknowledged by the Crown in the course of oral argument, without the statement, the Crown could not obtain a conviction. Consequently, as indicated at the end of oral argument, the appeal is allowed, the conviction is quashed, and an acquittal is entered.

RELEASED: “DD” “DEC 13 2004”

“Doherty J.A.”

“John Laskin J.A.”

“Robert P. Armstrong J.A.”

[^1]: On appeal, counsel for the Crown placed some reliance on s. 715.2(1). That section had no application given the Crown’s position that the complainant was unable to testify.