COURT FILE NO.: CR-23-10000133 DATE: 20240919
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Applicant – and – A.B. Respondent
Counsel: Mihael Cole, for the Crown Jordan Gold, for A.B.
HEARD: September 9, 2024
Pinto J.
Ruling on Crown’s Application to Admit Complainant’s Video Statement under s. 715.1 of the Criminal Code
Overview
[1] The respondent, A.B., is charged with sexual assault and sexual interference of the complainant when she was between 11 and 14 years old. The respondent was a close friend of the complainant’s family.
[2] The respondent re-elected to be tried by judge alone and consented to the complainant testifying from outside the courtroom by way of CCTV.
[3] On the first day of trial, I heard the Crown’s application under s. 715.1 of the Criminal Code seeking admission of the complainant’s videotaped statement to the police. The respondent opposed the application. After hearing the application on September 9, 2024, I allowed the application with reasons to follow. These are those reasons.
Background
[4] 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.
[5] The only aspect of this application that the parties disagree on is whether the video recording was made within a reasonable time after the alleged offence. The videotape statement was recorded on February 18, 2022 when the complainant was 16 years old. This is approximately two years and two months after the last alleged incident of abuse in December 2019. In the video statement, the complainant describes the acts complained of, and it is anticipated that she will adopt her video statement at trial.
Parties’ Positions
[6] The Crown submits that the Supreme Court of Canada has directed that a trial judge may only exclude a statement under s. 715.1 where admission would operate unfairly to the accused. The purpose of the provision is to preserve an early account of the child’s evidence in order to assist in the discovery of the truth and to provide a procedure for the introduction of the child’s story into evidence: R. v. L. (D.O.), [1993] S.C.R. 419, at pp. 419, 444.
[7] The respondent comes at the interpretation of s. 715.1 somewhat differently, pointing out that the default is not admission of the videotape statement. Rather, the statutory pre-conditions must first be met and the trial judge maintains a discretion to refuse to admit the statement.
[8] The respondent agrees with the Crown that the determination of what is “reasonable” does not depend solely on the length of time that has passed between the last incident and the statement. Factors such as the reason for the delay and relationship between the complainant and accused will affect the analysis as well.
[9] The respondent points out that, while the Crown has suggested that the complainant was fearful of coming forward to the police, there is no evidence of this on the record. Moreover, the complainant did not live with the respondent and it appears that the respondent was out of the complainant’s life all through the over 2 year period before she gave her statement.
[10] The respondent also notes that the complainant is now an adult. She will be 19 at trial therefore some of the policy considerations for admission of videotaped statements are either non-existent or significantly diminished: R. v. Lajoie, 2011 ONSC 2005, at para. 15; R. v. J.M., [2016] O.J. No. 985, at para. 28.
[11] Finally, the respondent suggests that relatively little time has passed since February 2022 when the statement was taken and the present, which is the time of the complainant’s anticipated viva voce evidence at trial.
Decision
[12] I note that the time period between the last alleged incident of abuse and the video statement is 2 years and 2 months.
[13] The case law emphasizes that the determination of what is “reasonable” does not depend solely on the length of time between the last allegation and the statement.
[14] In R. v. Kuzviwanza, 2024 ONSC 1621, O’Marra B. J. noted:
[12] A two-year delay, or any amount of delay, is not necessarily “borderline”. The calculation of the delay alone will not determine what constitutes a “reasonable time” for the purposes of s. 715.1. Strict timelines stand in direct opposition to the nuanced and case-specific analysis called for in a reasonableness inquiry. The practical and recognized reality is that children will often delay disclosing abuse they have suffered, particularly sexual abuse involving a perpetrator who stands in a position of trust relative to the child: R. v. P.S., 2019 ONCA 637, 157 W.C.B. (2d) 480, at paras. 19-21. The reasons for delayed disclosure in sexual crimes are many, including, “embarrassment, fear, guilt, or lack of understanding and knowledge”: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.
[15] I make three observations that favour the admissibility of the statement.
[16] First, the delay in reporting occurred when the complainant was between 14 and 16 years old. When a child is 14, I find that an approximate two year delay is not unreasonable for the child to process and muster the strength to come forward and explain what they experienced. It may only be at the older age that the child fundamentally understands the violation to their body and psychological integrity.
[17] Second, the respondent here was a close family friend. It appears, from the transcript of the videotape statement, that the reason why the respondent ceased contact with the complainant was because of the global pandemic and the fact that he had changed churches. I do not see this as a situation where the complainant could be assured that the respondent was not coming back into her life. The respondent was a close friend of her parents, the father of her younger brother’s best friend, and I assume that it would have been challenging for her to raise allegations of abuse against a trusted family friend. I do not find the elapse of time so long as to be unreasonable.
[18] Third, while I agree with the respondent that the complainant’s police interview does not shed light on her reasons for not coming forward sooner, there is ample support in the law for the application judge to carefully examine the circumstances and draw whatever inferences are available for the reasons for delay. Here, I draw the inference that the last incident of alleged abuse ended when the complainant was around 14 years old. With respect to the reasons for delay, it is not unusual for a victim of sexual assault to be reluctant in reporting the incident: R. v. P.S., 2019 ONCA 637, at para. 21; R. v. C.C., 2019 ONSC 3232, at para. 27. The nature of the alleged abuse entailed multiple incidents of physical touching of the complainant’s breasts with the respondent’s hands and possibly his nose that occurred over an approximate two year period. I draw the inference from the videotape statement that the abuse may have become normalized to the extent that the complainant herself may, in some instances, have held up her own clothing to reveal her breasts as it appears she may have been conditioned to do what came next.
[19] I note that it is somewhat of a contradiction for the respondent to claim that the time between the video statement in February 2022 and the present is not all that long, yet assert that the delay between the last alleged incident in December 2019 and the time of the video statement in February 2022 is unreasonably long. In fact, the former is longer than the latter.
[20] I acknowledge and have taken into account that the complainant is 19 at trial. While she is no longer a child, I have balanced this with all the other factors favouring admissibility including preserving an early account of the child’s complaint as well as diminishing the stress of having to testify again about the assaults that she allegedly suffered.
[21] Finally, bearing in mind that even where the statutory preconditions for admissibility are met, a judge can still deny admissibility where the admission of the video recording would interfere with the proper administration of justice, I see no basis for denial. Accordingly, the video recording shall be admitted.
[22] This is a judge alone trial and the Defence will have the usual rights to cross examine the complainant on all of her evidence including the videotaped evidence. I am satisfied that the Defence will not be at a disadvantage by the admission of the complainant’s video statement in addition to her testimony.
Conclusion
[23] Application allowed.
Pinto J.
Released: September 19, 2024
COURT FILE NO.: CR-23-10000133 DATE: 20240919 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING Applicant – and – A.B. Respondent
REASONS FOR s. 715.1 RULING Pinto J.