Non-Publication and Non-Broadcast Order Warning

WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2024 01 17 COURT FILE No.: Pembroke 19-1654

BETWEEN:

HIS MAJESTY THE KING

— AND —

C.H.

Ruling Re Voir Dire Re Section 715.1 of the Criminal Code

Before: Justice J.R. RICHARDSON

Heard on: February 28, March 1, August 23, 2023 Released on: January 17, 2024

Counsel: Richard Morris.................................................................................... counsel for the Crown Forest Poff-Smith............................................................................ counsel for the accused

RICHARDSON J.:

Introduction

[1] This case involves the question of whether a child witness’s failure to remember going to the police station and giving a video tape statement is fatal to the admission of that statement under section 715.1 of the Criminal Code.

[2] For reasons set out below, I find it is not.

[3] The accused is charged with Sexual Interference, Invitation to Sexual Touching, and Sexual Assault in relation to AH between the 1st of September 2018 and the 3rd of November, 2019.

[4] The matter originally came on before me for trial on February 28. The Crown commenced its case by conducting a section 715.1 voir dire. At the conclusion of the voir dire, I ruled that the statement was admissible and proceeded to hear the rest of the trial.

[5] Prior to final submissions on the trial, defence counsel asked me to reconsider the voir dire ruling in light of the Ontario Court of Appeal’s decision in R. v. Triolo 2023 ONCA 221.

[6] The fact that the 715.1 statement was made within a reasonable time after the alleged offences was not seriously contested.

[7] The other technical preconditions for admissibility are met. I am able to observe the child’s demeanour and assess her personality and intelligence.

[8] I am also satisfied that admission of the video recording would not properly interfere with the administration of justice.

Evidence of AH on the Voir Dire

[9] When AH testified before me, she was nine years of age. The incidents complained of occurred when she was five. I assessed AH to be of average to perhaps slightly below average intelligence for a nine year old girl. She could be easily confused and it was difficult to keep her attention.

[10] AH gave a videotaped statement to Detective Constable Jamie Trader of the Upper Ottawa Valley OPP on November 4, 2019.

[11] About a week before she testified on February 28, 2023, AH watched the videotaped statement in the presence of Detective Constable Trader.

[12] She also watched it right before she testified on February 28, 2023.

[13] AH testified in-chief that she did not remember giving the statement. She stated however that she recognised herself on the video and that she understood the words that she was saying. When the Crown asked if it “rang any bells” with her or whether she remembered “the circumstances” she was talking about, AH replied, “Kind of”.

[14] The Crown then asked, “And what were you talking about on that videotape?” AH replied, “What my dad did to me.”

[15] When asked how old she was when she gave the videotaped statement, AH stated that she was five.

[16] The Crown then asked, “And what about the other stuff on the tape? Do you think that’s true?” AH replied, “Yes”. The Crown then asked “And why do you think that?” AH stated, “Because I remember how my dad did that to me”.

[17] This is where things get a bit murky. When the Crown asked AH to elaborate what she meant by “what he did to me”, AH stated, “That he put his privates between mine.” When asked if she remembered “anything else?”, AH replied, “No.” She stated, “I only remember a bit of it, but not that much.”

[18] The Crown then embarked on a familiar line of questioning about whether AH’s memory would be better on the day that she testified or on the day that she gave her statement. This did not assist and seemed to only confuse her.

[19] The Crown then asked, “Okay. And the things that you saw on the video tape that you watched earlier today, did that refresh your memory? In other words, did it help you remember?” AH again replied, “Kind of”. When asked what she meant by that, AH indicated, “It kind of made me remember half of it – half of it but not all of it.”

[20] She then proceeded to tell the Crown that she did not remember talking to the police officer on the tape. Despite this, she stated that she was telling the truth. When asked why she thought she was telling the truth, AH stated, “Because then I was serious and it wasn’t a time to joke around.”

[21] When AH was cross-examined, she agreed that she could not be sure that everything that she told the police officer in the statement was the truth. She also agreed with the proposition that because she does not remember everything she told the police officer, she can’t be sure that what she said was the truth. She also reiterated that she did not remember meeting with the police officer in the video.

Analysis

[22] Section 715.1 of the Criminal Code states:

715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

[23] The question in this case is whether AH sufficiently “adopted” the contents of the video taped statement.

[24] This issue was considered by the Supreme Court of Canada in R. v. F. (C.C.) 1997 SCC 306. In that case, the court chose between two interpretations of the term “adopts”, that of the Alberta Court of Appeal in R. v. Meddoui 1990 ABCA 2592 and the contrary interpretation of the Court of Appeal for Ontario in R. v. Toten 1993 ONCA 3427. In Meddoui the Alberta Court of Appeal found that so long as the witness testified that they were telling the truth when they gave their videotaped statement, the statement was admissible. Issues with respect to inconsistencies between the statement and the witness’ account in court, including the issue of whether the witness had a present memory (at the time of trial) of everything in the statement was a matter of weight, not admissibility.

[25] In Toten, the Court of Appeal for Ontario found that in order for the statement to be admissible, the child complainant had to be able to verify the contents of the videotaped statement based on their memory at the time of the trial.

[26] IN F.(C.C.), the Supreme Court of Canada unanimously agreed with the approach in Meddoui. Justice Cory stated at paragraphs 40 to 44:

40. In light of the clear aim and purpose of s. 715.1, I cannot accept the Ontario Court of Appeal position that the same meaning of adoption should be used in the context of the videotaped statements of a child as was applied to prior inconsistent statements. Adoption is not a term with a static legal meaning which must apply in all circumstances. The strict adoption test for prior inconsistent statements was necessary to ensure a reasonable degree of reliability before allowing the statements to be admitted for the truth of their contents. However, s. 715.1 has built‑in guarantees of trustworthiness and reliability which eliminate the need for such a stringent requirement for adoption. Further, a lack of present memory or an inability to provide testimony at trial regarding the events referred to in the videotape as a result of the youthfulness and the emotional state of the complainant increases the need to consider the videotaped statement.

41. The test set out in Toten would prevent a child who has little, or no memory of the events from “adopting” the video and it would therefore be inadmissible under s. 715.1. However, it is precisely in this situation that the video is most needed. Children, particularly younger ones, are prone to forget details of an event with the passage of time. A videotape made shortly after the event is more likely to be accurate than the child’s viva voce testimony, given months later, at trial. It is quite possible that a young child will have a recollection of going to the police station and making the statement and of her attempt to be truthful at the time yet have no memory of the unpleasant events. This is particularly true where the elapsed time between the initial complaint and the date of trial is lengthy. If effect is to be given to the aims of s. 715.1 of enhancing the truth-seeking role of the courts by preserving an early account of the incident and of preventing further injury to vulnerable children as a result of their involvement in the criminal process, then the videotape should generally be admitted.

42. In Toten, it was suggested that the videotape would be useful in circumstances where a child has a memory of events but is unable to articulate them. In my view, this approach is too narrow. It fails to take into account the broader purposes of the legislation. Trial judges do not expect children to be perfectly articulate. They know that the examination‑in‑chief of a child will not precisely match the ideal narrative form of an adult’s testimony. Indeed, the trial judge has the discretion to permit counsel to use leading questions on examination‑in‑chief in order to get the child’s evidence before the trier of fact. Children are vulnerable victims and for a number of reasons their testimonial capacities may range from a complete inability to articulate recalled events to an ability to recount some but not all of the events. In any of these circumstances, the admission of a videotaped statement would assist a court in arriving at the truth. It would be inappropriate to construe the section as one which only addresses the “inarticulate complainant”.

43. Although I agree with much of the reasoning in Meddoui I cannot accept the suggestion put forward that when a witness has an independent present memory of the events the videotape adds nothing to the testimony. The admission of the videotaped statements made shortly after the events in issue may be of great assistance in augmenting a child’s testimony at trial by the account of events given in the statement when the incidents were fresh in the child’s mind. In Toten, at p. 28, it was wisely observed that “[t]he prior statement, combined with the complainant’s in‑court evidence, may well afford a more complete version of the complainant’s evidence.”

44. I recognize that the Meddoui approach to “adoption” gives rise to another problem. Specifically, a witness who cannot remember the events cannot be effectively cross‑examined on the contents of his or her statement, and therefore the reliability of his or her testimony cannot be tested in that way. However, it was recognized in R. v. Khan, 1990 SCC 77; R. v. Smith, 1992 SCC 79, and R. v. B. (K.G.), 1993 SCC 116, that cross‑examination is not the only guarantee of reliability. There are several factors present in s. 715.1 which provide the requisite reliability of the videotaped statement. They include: (a) the requirement that the statement be made within a reasonable time; (b) the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor, and assess the personality and intelligence of the child; (c) the requirement that the child attest that she was attempting to be truthful at the time that the statement was made. As well, the child can be cross‑examined at trial as to whether he or she was actually being truthful when the statement was made. These indicia provide enough guarantees of reliability to compensate for the inability to cross‑examine as to the forgotten events. Moreover, where the complainant has no independent memory of the events there is an obvious necessity for the videotaped evidence. In Meddoui, it was recommended that in such circumstances, the trier of fact should be given a special warning (similar to the one given in Vetrovec v. The Queen, 1982 SCC 20) of the dangers of convicting based on the videotape alone. In my view, this was sage advice that should be followed.

[Bold and underlining emphasis mine. Italics emphasis referred to below]

[27] Fast forward to the decision in Triolo. Triolo was a homicide case. Identification was in issue. An adult witness had sworn an affidavit which set out what the accused was wearing. The witness was then said to have “adopted” the contents of the affidavit when he testified at trial. Defence counsel argued that this ran afoul of the decision in Toten and was inadmissible hearsay. Justice Paciocco stated as follows at paragraph 64 with respect to Toten:

In any event, the interpretation of “adopts” from Toten that Mr. Triolo relies upon has been overtaken by the decision in R. v. F. (C.C.), 1997 SCC 306, at paras. 36-44, which holds that a witness “adopts” a statement within the meaning of s. 715.1 by affirming that they recall making the statement and were being honest and truthful at the time, even if they have no memory of the facts asserted in the statement at the time of trial.

[28] This is the primary basis upon which defence counsel asks me to reconsider my ruling. Triolo, he argues, makes it clear that in order to adopt a statement under section 715.1, the witness must affirm that they recall making the statement and they were being honest and truthful at the time.

[29] He also relies on the decision of the Court of Appeal in R. v. AL 2016 ONCA 201. There, when describing why the trial judge was correct in admitting a child complainant’s videotaped statement, Justice Hoy stated at paragraph 7, “She recalled giving her statement and that she had told the truth at the time.”

[30] Our Court of Appeal considered the meaning of “adopts” in two 2017 cases, R. v. Osborne 2017 ONCA 129 and R. v. KS 2017 ONCA 307.

[31] In Osborne, the Court of Appeal was asked to interpret the same word in relation to section 715.2 of the Criminal Code, which allows persons who are adults, but who have a disability, to give a videotaped statement that is admissible in Court if they “adopt” it.

[32] Citing paragraph 41 of Justice Cory’s judgment in F.(C.C.), supra, Justice Epstein found that the interpretation of “adopts” in section 715.2 should be the same as in section 715.1. In doing so, Justice Epstein emphasized the italicized portions of paragraph 41 that I have quoted above.

[33] Just as Justice Cory did in F.(C.C.), Justice Epstein reminded us that these sections must be interpreted in a way that is consistent with the aim and purpose of the legislation. In doing so, she emphasized the italicized portions of paragraph 42 that I have quoted above.

[34] Both F.(C.C.) and Osborne remind us that the purpose of this legislation is to allow the “story” of the child (or person with disability) to be entered into evidence to enhance the truth-seeking function of the court. See paragraphs 21 through 29 of F.(C.C.) and paragraph 60 of Osborne.

[35] In K.S., the trial judge admitted the child’s statement but rejected the child’s evidence and acquitted the accused. The Crown appealed, arguing that the trial judge had run afoul of F.(C.C.) by requiring the child to give an in-Court recollection of events before finding that the statement was adopted.

[36] The Court of Appeal disagreed, stating at paragraphs 13 through 18:

[13] The test for adoption is not overly stringent. It does not require that the witness have a present recollection of the events discussed and need not meet the standard for adoption of a prior inconsistent statement by an adult witness: F. (C.C.), at paras. 33, 36, and 40. Under s. 715.1, the statement is adopted if the complainant or witness recalls making the statement and trying to be truthful at the time the statement was made: F.(C.C.), at para. 41.

[14] The trial judge concluded that the videotaped statement met the requirements of s. 715.1 subject to the complainant's adoption of it at trial. The Crown says that the judge erred in requiring that the complainant recall the events described in the videotape in order to satisfy the adoption requirement.

[15] The trial judge expressed concern about whether the complainant adopted the statement, but her concern was directed more to whether the complainant remembered making the statement to the officer and whether she was being truthful at the time. A fair reading of the reasons does not reveal that the judge required that the complainant have a current recollection of the relevant events before a finding of adoption could be made.

[16] In the end, the trial judge's reasons appear to have proceeded on the assumption that the complainant had adopted her videotaped statement, even though she (the trial judge) may not have reached an affirmative conclusion on the issue.

[17] It is important not to confuse the threshold test for the admissibility of the videotape, on the one hand, with the ultimate reliability of the complainant's evidence (of which the videotape is part) on the other. We are satisfied that the rejection of the complainant's evidence was not contaminated by the erroneous exclusion of the videotaped statement. The statement was admitted into evidence and considered by the trial judge.

[18] The trial judge's finding that the Crown had not proven its case beyond a reasonable doubt was rooted in her rejection of the complainant's evidence.

The Principles Applied

[37] In my view, on the facts of this case, AH may fairly be taken to have adopted her statement. I say this for the following reasons:

[38] First, she was able to clearly articulate that the statement was about “what my dad did to me”, and that she was trying to be truthful. When pressed on why she thought she was telling the truth, AH was able to articulate that she was “serious” and “it was not a time to joke around.” The fact that she “kind of” remembered parts of the statement or remembered half of the allegations do not go to the admissibility of the statement. Such would be an error under F.(C.C.). Those are issues that may later go to the issue of what weight the statement should be given and whether after she was cross-examined at large, the Crown has met the burden of proving the case beyond a reasonable doubt. Although I have heard the trial evidence, I have not yet heard the parties’ submissions about the evidence as a whole and I have not formulated any views with respect to the evidence.

[39] Secondly, AH was able to clearly articulate that although she did not really remember going to the police station to give her evidence, there is no real dispute that AH is the person on the videotape.

[40] Thirdly, it was clear to me that parts of the Crown’s examination in-chief and parts of the defence counsel’s cross-examination at the section 715.1 voir dire confused AH. As Justice Cory stated a paragraph 48 of F.(C.C.), “A skilful cross‑examination is almost certain to confuse a child, even if she is telling the truth.”

[41] This is illustrated in this case by AH’s agreement in cross-examination that if she cannot remember everything in the statement, she could not have been telling the truth. An adult would have difficulty discerning the incongruence of this question, let alone a child of nine who was testifying about giving a statement when she was five.

[42] When considering whether a child has adopted the contents of the statement, the Court must exercise great care in looking exactly at what the child said about the process that she was talking about. This not only applies to cross-examination, but it can apply to examination in-chief. It not only applies to a child’s evidence at trial, but it can also apply to a child’s evidence on a voir dire.

[43] Fourth, as part of this process, we must remember Justice McLachlin’s (as she then was) dictum in R. v. W.(R.) 1992 SCC 56 at paragraph 24 that “[s]ince children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”.

[44] Fifth, in my view, having regard to the aim and purpose of the legislation, it should not be necessary for the Crown to prove that the child remembered going to the police station and giving her statement. It should be no surprise to anyone that a child witness, particularly one as young as AH in this case, (at age nine), might not remember going and giving a statement four years earlier (when she was five) for any reason, including the trauma that may be involved with recounting the events that she says happened to her.

[45] If the aim and purpose of the legislation is to allow for an opportunity to “preserve an early account” of the incident for the most vulnerable of witnesses, I fail to see how requiring the child to specifically remember going to the police station and giving the statement adds anything to the reliability of the statement. We must remember that the fact that children forget details with the passage of time is why section 715.1 exists in the first place.

[46] Sixth, by stating that she was telling the truth, and by stating that she was “serious” and it was “not a time to mess around”, it is clear that AH knew and remembered the importance of giving the statement to the police, even if she did not remember actually making the statement. If there is a requirement that the child remember going and giving the statement independent of the statement itself, then surely that requirement can be met when there is other circumstantial evidence that the child understood how important what she was doing was. That is present here.

[47] Finally, I do not believe that the child’s ability to remember going and giving the statement is a legal requirement under F.(C.C.). I believe that, although this is something that has crept into the analysis of the meaning of “adopt” in section 715.1, on a focussed reading of Justice Cory’s decision in F.(C.C.), it is not requirement.

[48] To be sure, Justice Cory referred to it when he was generally discussing the aims and purposes of the legislation at paragraph 41 of F.(C.C.), which I have quoted above.

[49] However, when it actually came down to setting out the legal requirements for adoption, he did not include the requirement that the child remember going to the police station and giving her statement. To illustrate my point, I requote Justice Cory’s comments in paragraph 43 of F.(C.C.):

There are several factors present in s. 715.1 which provide the requisite reliability of the videotaped statement. They include: (a) the requirement that the statement be made within a reasonable time; (b) the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor, and assess the personality and intelligence of the child; (c) the requirement that the child attest that she was attempting to be truthful at the time that the statement was made. As well, the child can be cross‑examined at trial as to whether he or she was actually being truthful when the statement was made. These indicia provide enough guarantees of reliability to compensate for the inability to cross‑examine as to the forgotten events. Moreover, where the complainant has no independent memory of the events there is an obvious necessity for the videotaped evidence.

[50] For all of these reasons, the section 715.1 statement will be entered into evidence.

Released: January 17, 2024 Signed: Justice J.R. Richardson