R. v. A.G., 2025 ONSC 2412
Court File No.: 23-11403201
Date: 2025-04-22
Ontario Superior Court of Justice
Between:
His Majesty the King, Applicant
– and –
A.G., Defendant/Respondent
Applicant Counsel: Lo c Welch
Respondent Counsel: Nikolas Lust
Heard: February 24, 2025
Ruling on Section 715.1 Application
McVey J.
Introduction
[1] A.G. stands charged with offences against three complainants, S.R., A., and T.G., all of whom were his adopted children at the relevant time. Among other things, the Crown alleges that A.G. committed repeated acts of sexual violence against S.R., culminating in an alleged assault in December 2018, which precipitated S.R. leaving the family home permanently. S.R. provided a videotaped statement to the police on October 20, 2022, when she was 17 years of age.
[2] A two-week judge alone trial commenced before me on February 24, 2025. On the first day of trial, pursuant to section 715.1 of the Criminal Code, the Crown applied to have S.R.’s statement form part of her evidence at trial. A.G. opposed the application maintaining that S.R.’s statement had not been taken within a reasonable time of the alleged offences. The last incident of alleged abuse occurred in December 2018. S.R. provided a statement on October 20, 2022. This amounts to an approximate delay of three years and nine months.
[3] A.G. conceded that the other statutory preconditions of section 715.1 had been met, subject to S.R. adopting her statement.
[4] On February 24, 2025, pursuant to a bottom-line ruling given during trial, I found that S.R.’s statement was taken within a reasonable time of the alleged offences and could form part of her trial evidence were she to adopt it during her evidence. These are my complete reasons.
Analysis
[5] The Crown bears the burden of proving, on a balance of probabilities, the following five statutory preconditions when seeking to tender a video-recorded statement pursuant to section 715.1 of the Criminal Code:
- The victim or witness was under 18 years old at the time of the alleged offence;
- The video-recorded statement was taken within a reasonable time of the alleged offence;
- In the statement, the victim or witness describes the acts complained of;
- The victim or witness, while testifying, adopts the contents of the video-recorded statement; and
- The admission of the statement would not interfere with the proper administration of justice.
[6] Section 715.1 has a dual purpose. First, it furthers the truth-seeking function of a trial by rendering admissible a record that arguably encompasses a child’s best recollection of past events. Second, it seeks to minimize the well-understood stress and anxiety that the criminal justice process inherently visits upon those who have suffered childhood trauma: see R. v. C.C.F., [1997] 3 S.C.R. 1183, at paras. 19-20. These dual objectives must be borne in mind when both interpreting and applying the statutory preconditions to ensure that the goals of section 715.1 are not frustrated by an inflexible approach to the section’s application.
[7] A.G. only takes issue with whether the statement was taken within a reasonable time of the alleged offences. I am satisfied that it was.
[8] Whether a statement was given within a reasonable time is decided on a case-by-case basis: R. v. L. (D.O.), [1993] 4 S.C.R. 419, at p. 467. Among other things, I must consider the explanation for the delay and the impact of the delay on the complainant’s ability to accurately recall the alleged events: L. (D.O.), at p. 323. However, when doing so, I must recognize that children do not often disclose sexual abuse immediately. For that reason, there is no “reasonable time” ceiling beyond which section 715.1 no longer applies:
Accordingly, it would make little sense to take a known feature of many child complainants’ journeys toward the justice system – delayed disclosure – and make it a dispositive factor in the admissibility inquiry. This is precisely why each case must be approached on its own facts, having regard to all of the circumstances of the case, to determine whether the passage of time between the alleged events and the giving of the video statement is “reasonable.”
[9] A.G. launches three main arguments against admission: (1) the evidentiary record does not disclose a sufficient reason for S.R.’s delayed disclosure; (2) the delayed disclosure has negatively impacted S.R.’s ability to recall the alleged events; and (3) section 715.1 is intended for “child witnesses” and S.R. is now 20 years of age.
[10] I will deal with each argument in turn.
Explanation for the Delay
[11] In 2022, when asked by the interviewing officer whether she considered telling anyone at the time about the abuse she suffered in A.G.’s home, S.R. answered, “I thought about it, but they don’t really like do it [sic], or I didn’t know like I don’t know, I didn’t. I just don’t know why.” A.G. argues that this does not disclose an adequate explanation for S.R.’s delayed disclosure. A.G. accepts that children in general often disclose sexual abuse in a delayed fashion for well-understood and justifiable reasons. However, A.G. maintains that because S.R. was 17 years old during the interview, she was capable of introspection and articulating feelings of vulnerability, embarrassment, shame, or fear, yet she did not. A.G. contends that S.R.’s failure to articulate the basis of her non-disclosure is fatal to the Crown’s section 715.1 application because the record is effectively silent on the reasons for the delay; consequently, A.G. contends that I lack an evidentiary basis to find a suitable explanation for same.
[12] In effect, A.G. argues that section 715.1 requires that a complainant possess the ability to both appreciate and explain why they were not ready to disclose childhood abuse earlier. In my view, the statutory precondition that a statement be taken within a reasonable time of the alleged offences demands no such insight or introspection on the part of complainants, particularly younger children. The section demands that I consider whether the evidentiary record discloses an adequate explanation for the delay, not that the complainant necessarily explain it to me. On the record before me, for the following reasons, I am more than satisfied that there is a satisfactory explanation for the delay.
[13] S.R. was approximately six years of age when she and her three younger siblings were adopted by A.G. and his spouse. I am unaware of S.R.’s pre-adoption history. She spent approximately seven years in A.G.’s home. During that time, she alleges that A.G. told her repeatedly that she was unwanted; that he had not wanted to adopt her because she was too old at the time; that no one would want her; and that he planned to send her back to the authorities. She tells the interviewing officer that over time, A.G. segregated her in a small room in the basement that had little furniture and a curtain for a door, and that A.G. eventually prohibited S.R.’s siblings from speaking with her. S.R. tells the officer that she was only able to leave her room to go outside, attend school, or have a shower. Finally, S.R. explains to the officer that A.G. frequently sexually assaulted S.R. while she was isolated in the basement of A.G.’s home, while her adoptive mother was upstairs. She further states that her body “naturally reacted” to the unwanted sexual touching and that A.G. shamed her about this involuntary physical reaction. I cannot even begin to fully understand the emotional and psychological toll that these alleged traumatic experiences would have had on a vulnerable, young child. It goes without saying that sexual childhood trauma can impact a child’s emotions, sense of self, and ability to develop trusting relationships. As a matter of common sense, it takes time for children who have been abused by those in charge of their care to place their trust in adults again.
[14] S.R. explains that she left the home permanently in December 2018 after A.G. allegedly assaulted her during an argument and threatened to kill her. She moved in with N.R. who ultimately became her legal guardian. When S.R. disclosed the alleged abuse in approximately September 2022, she was a few months shy of turning 18 years of age; she had lived in a consistent home free of abuse for close to four years; she had a job working at Subway; and she was in her last year of high school with plans and ambitions for the future.
[15] Given the nature of the allegations and the circumstances in which the offences purportedly occurred, I have no difficulty accepting that it may have taken S.R. many years to feel comfortable and safe reporting A.G.’s alleged sexual misconduct, even if she did not necessarily appreciate that nexus as a 17-year-old speaking with police for the first time about humiliating, private, and intensely painful allegations. Child victims of sexual trauma may lack the maturity and emotional insight to understand and articulate exactly why they chose to come forward when they did, or why they did not do so earlier. Adults may as well. Courts have had the benefit of expert evidence, scholarly articles, and judicial education on this topic for decades. Others have not.
[16] In my view, as a precondition of section 715.1, a child complainant need not explicitly explain why they did not disclose the alleged abuse at an earlier time. I would not withhold the relief afforded by the section until such time that a child or young adult can provide insightful particulars on their response to childhood trauma, a subject matter, I might add, that has taken professionals, including those responsible for the administration of justice, years to comprehend and apply. Doing so would run completely counter to the objective of the section.
Memory of the Alleged Events
[17] A.G. maintains that S.R.’s delay in disclosing negatively impacted her memory of the alleged events to such a degree that the admissibility of her statement is undermined. I disagree. S.R. was able to recollect the detailed nature of the alleged touching in terms of what body parts were touched, by whom, and how; where the sexual touching took place in the home and that the majority of it occurred in the second room she occupied in the basement; where others in the home were when it occurred; the general circumstances surrounding the assaults, i.e., that A.G. would sexually assault S.R. after he prayed with her in her room; and the details regarding the alleged assault that precipitated her leaving the home permanently, including where she was assaulted and what A.G. purportedly said to her during the incident.
[18] The deficiencies in S.R.’s memory advanced by A.G. as a basis for denying the application are not compelling. A.G. argues that S.R. did not recall a “single incident.” I disagree. S.R. was asked if there was a “specific time” that she could recall regarding the touching. She stated that she could, and she went on to describe an incident where A.G. grinded against her body to the point of ejaculating on her chest.
[19] In my view, A.G.’s real issue is that S.R. does not appear to speak of the assaults individually in terms of when exactly each one happened, what A.G. was wearing at the time, what she was wearing, and how each incident ended. Expecting that type of itemized detail from anyone in these circumstances, let alone a child, is not realistic. S.R. tells the officer that the assaults occurred 4-5 times a week for a lengthy period. Even had she come forward almost immediately, I would not have expected her to remember and recall such a high number of similar assaults in a chronological and itemized fashion. Common sense and human experience tell me that a person’s memory of repeated incidents of assault will eventually consolidate into a more generalized memory, particularly where the events occur close together in time and share common elements.
[20] A.G. maintains that S.R. could not recall what occurred immediately before or after each assault. I disagree. She explains in her statement that the assaults were preceded by A.G. praying near her bed. After the assaults, he would either leave right away, continue to pray, and then leave, or fall asleep and leave when he woke up. What else should she realistically be expected to recall?
[21] In my view, S.R.’s delayed disclosure has not impacted her memory to the point that concerns regarding reliability should result in the protections of section 715.1 being withheld from her.
Purpose of Section 715.1
[22] S.R. had just turned 20 years of age before she testified. A.G. argues that section 715.1 is “intended for child witnesses” and therefore admitting S.R.’s statement does not further the objectives of the section. A.G. relies on R. v. J.M., 2016 ONSC 535, paras. 28-29; see also R. v. R.D., 2024 ONSC 1811.
[23] In my view, A.G. casts the net of section 715.1 too narrowly. Frequently, when citing the goals of the section, decisions in this area naturally refer to child complainants. That is not surprising given that the section applies to statements that describe events that allegedly occurred when the complainant was a child, and because often, though not always, the complainant is still under the age of 18 at the time of their testimony. But the language of the section does not support a finding that section 715.1’s application is necessarily limited to that context.
[24] Section 715.1 states that “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 statement taken within a reasonable time of the alleged offences may be admitted into evidence provided the complainant adopts the statement and it otherwise describes the acts complained of. The section says nothing about the age of the victim or witness at the time of their testimony. If Parliament wished to limit the scope of the provision to child witnesses it would have said so explicitly, as it has with other testimonial aids. For example, support persons are presumptively mandatory on request for any “witness who is under the age of 18 years”: see s. 486.1(1). Similarly, testimony by way of CCTV is presumptively mandatory on request for any “witness who is under the age of 18 years”: see s. 486.2(1).
[25] It follows that Parliament is well-familiar with the phrase “a witness who is under the age of 18 years.” It opted not to utilize it within section 715.1. Its decision not to do so triggers the presumption against tautology and the principle of consistent expression, i.e., when a legislature uses different words or phrases within the same statute, it is presumed that it intended a different meaning. Every word “in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose”: McDiarmid Lumber Ltd. v. God’s Lake First Nation, 2006 SCC 58, [2006] 2 S.C.R. 846, at para. 36; see also R. v. A.A., 2015 ONCA 558, at para. 68; R. v. Ali, 2019 ONCA 1006, at para. 68.
[26] Simply put, the legislative text of section 715.1 does not limit the reach of the section to witnesses who are under the age of 18 at the time of their evidence. Parliament had the tools to accomplish that goal had that been its objective.
[27] Rather, I find that the broader language used by Parliament reflects an appreciation that the harms that flow from testifying about childhood sexual abuse can arise regardless of the age of the witness. Harm flows to survivors of childhood sexual abuse when forced to repeat their narratives in front of varying audiences in different environments. Indeed, it is “often the repetition of the story that results in the infliction of trauma and stress upon a child, who is made to feel that she is not being believed and that her experiences are not being validated”: L. (D.O.), at para. 35. This same trauma is also undoubtedly visited on any witness when testifying about childhood sexual abuse. Parliament chose to extend to those witnesses the modest relief afforded by section 715.1 provided concerns regarding reliability do not outweigh the salutary effects of doing so. The language of the section ensures that the objective of minimizing the further infliction of trauma on complainants does not interfere with the truth-seeking function of the trial by insisting that a statement be “taken within a reasonable time” of the alleged offences. Consequently, it follows that the older the witness, the less likely that their statement regarding childhood sexual abuse will have been taken within a reasonable time of the alleged offences. In those circumstances, notwithstanding the harms occasioned to the complainant by having to repeat their narrative during trial, concerns regarding reliability will likely prevail and the statement will not be admitted.
[28] In summary, the fact that a complainant is a young adult does not necessarily deprive them of the protections associated with section 715.1. There is little to no support in the legislative text for such an interpretation. Section 715.1 requires the complainant to have been under the age of 18 when the alleged offences occurred, not under the age of 18 at the time of their testimony. Other preconditions work to limit the reach of the section and ensure that the truth-seeking function of the trial is preserved, including that the statement be taken within a reasonable time and that its admissibility not interfere with the proper administration of justice. Age is of course relevant to both of those factors. But, in my view, the age of the complainant, though relevant, is not a dispositive factor in a section 715.1 admissibility inquiry.
Conclusion
[29] For the above reasons, I am satisfied that the statement was taken within a reasonable time of the alleged offences and that the section is available to S.R. notwithstanding her age.
McVey J.
Released: April 22, 2025