COURT OF APPEAL FOR ONTARIO
DATE: 20000428
DOCKET: C32078
CARTHY, MOLDAVER and MacPHERSON JJ.A.
B E T W E E N : )
) David M. Tanovich
HER MAJESTY THE QUEEN ) and Lisa Freeman
) for the appellant
Respondent )
)
- and - ) Laurie Lacelle
) for the respondent
P. S. )
)
Appellant ) Heard: December 6, 1999
)
On appeal from conviction by H. MacLeod J. with a jury dated
February 27, 1998 and from sentence dated April 14, 1998
MOLDAVER J.A.:
[1] The appellant was tried by the Honourable Madam Justice
MacLeod and a jury on a multi-count indictment consisting of the
following offences: sexual assault on C between September 1, 1993
and July 16, 1995 (count 1); sexual assault on A between May 17,
1993 and November 2, 1994 (count 2); and touching A, a person
under the age of 14, for a sexual purpose between May 17, 1993
and November 2, 1994 (count 3). He was found guilty on all
counts but the trial judge entered a stay of conviction on count
2 because the misconduct underlying that offence formed the basis
of count 3.
[2] The appellant was sentenced to thirty-four and one-half
months on each count, to be served concurrently. He does not
contest the length of the sentence per se but seeks a
proportionate reduction if he is successful in overturning one
but not both of the convictions.
[3] The facts and circumstances giving rise to the offence
against A are unrelated to those involving C. As well, apart
from one exception relating to the instructions on reasonable
doubt, there are no common legal issues. Accordingly, I propose
to treat the appeals from conviction separately and deal with
each on an individual basis.
APPEAL FROM CONVICTION ON COUNT 3: TOUCHING “A” FOR A SEXUAL
PURPOSE
Overview
[4] The appellant and A are cousins. At the time of the trial,
in February 1998, A was 12 years old and the appellant 23.
[5] The incident giving rise to the charges of sexual assault
and touching for a sexual purpose occurred in October 1994 when A
was 8 years old. On the day in question, she was visiting her
paternal grandmother E. When she and her father arrived that
morning, they were met by her grandmother and the appellant.
Uncle D was also present and he assured A’s father that he would
be at home all day. With this assurance, A’s father left.
[6] It was A’s evidence that within five or ten minutes of her
father’s departure, uncle D also left. After spending some time
with her grandmother in the kitchen, A went to the basement. She
testified that the appellant followed her and told her that she
was “going to pay because she told.” He then removed his
trousers and after pulling down her pants, he inserted his penis
into her crotch and had intercourse with her for about a minute.
After the appellant left the basement, A returned upstairs and
stayed close to her grandmother for the rest of the day. She did
not tell her father about the incident on the drive home, nor did
she mention it to her mother that night.
[7] Several months later, A noticed some bleeding in the area of
her vagina and she reported this to her mother. A was taken to a
doctor and upon examination it was determined that she had almost
no hymen present. According to the doctor, this finding was
indicative of sexual abuse and consistent with A having been
repeatedly penetrated by an object two to three centimetres in
diameter.
[8] As indicated, it was A’s evidence that just before the
appellant had sex with her, he told her that she was “going to
pay because she told.” To appreciate the significance of this
comment, it is necessary to flesh out the remainder of A’s
evidence.
[9] Over the objection of defence counsel, A was permitted to
testify about six prior acts of discreditable conduct involving
the appellant, four of which consisted of specific acts of sexual
misconduct. Of the six incidents, the first five occurred when A
was visiting her grandmother E. The sixth took place at the
appellant’s home. A described the following incidents:
- At age 4, the appellant “softly” touched her legs and shoulder when she was playing on a mat in the basement.
- In a shed located near the main house, the appellant removed his pants, took her pants down and inserted his penis in her “butt”.
- In the “little house” close to the main house, the appellant positioned himself on top of her and tried to kiss her.
- In uncle D’s room located in the main house, the appellant crossed his neck with a knife and then moved the knife across her neck.
- In the basement of the main house, the appellant pulled down his pants and at his insistence, she touched his penis.
- In the appellant’s bedroom, while seated on the bed, the appellant told cousin K to kiss her, stating “she won’t do anything.” K then proceeded to kiss her on her cheek.
[10] A testified that in 1993, after the incident with cousin K,
she told her mother about the appellant’s conduct. As a result,
in April or May of that year, A and her mother reported the
matter to the police. A was interviewed by Constable Allen and
she provided a statement describing the appellant’s acts of
misconduct. A and her mother were told by the officer that they
could either keep the matter within the family or pursue it in
court. After some discussion, it was decided that it would be
best to try to work things out within the family. Hence, the
police did not follow-up on the investigation at that time.1
[11] Efforts to deal with the matter within the family proved
unsuccessful and ended up driving a wedge between A and her
family and other members of the family, including grandmother E
and the appellant. As a result of these efforts, the appellant
learned that A had “told” on him. This, in turn, explains his
comment to A in the basement that she “was going to pay because
she told.”
[12] The appellant testified and denied any improper sexual
contact with A. On the day in question, he claimed that he
cleaned up the basement with his uncle D and spent the rest of
the day working outside in the yard. He denied being with A
during her visit. Indeed, in cross-examination, he went so far
as to say that he had never been alone with A in all the years he
had known her:
Q. Is it your evidence that you’ve never been alone with [A], anywhere? A. Um, no, I haven’t been alone, at all, with her. Q. Not even for five minutes? A. Not even. Q. Not even for one minute? A. Nope – there’s always people around. Q. And when you say “people”, was it always adults, or would … might it have been other children? A. It was always adults.
[13] Later in cross-examination, after being referred to his
statement to the police, the appellant retracted this evidence
and admitted that he had been alone with A on several occasions.
Nonetheless, he maintained that his association with A was
innocent and he denied sexually abusing her.
GROUNDS OF APPEAL
[14] The appellant raises the following four grounds of appeal:
(a) the jury was misdirected on the definition of reasonable doubt; (b) the jury was not given a limiting instruction on the use that could be made of A’s prior consistent statements; (c) the appellant’s prior acts of discreditable conduct should not have been admitted into evidence; and (d) to the extent, if any, that the prior discreditable acts were admissible, the jury was not properly instructed on the use that could be made of them.
(a) Reasonable Doubt
[15] In defining the term reasonable doubt, the trial judge told
the jury that “…if based upon the evidence, or lack of evidence,
you are sure that the accused committed the offences, you should
convict, since this demonstrates that you are satisfied of his
guilt, beyond a reasonable doubt” [Emphasis added.].
[16] Although this instruction was clearly wrong, in the
paragraph immediately preceding it, the trial judge properly
instructed the jury that a reasonable doubt is “based on reason
and common sense” and it is “logically derived from the evidence
or the absence of evidence” [Emphasis added.]. She also made it
clear that the burden of proof rested squarely on the Crown and
that it was not the responsibility of the appellant to “establish
or prove his innocence.” In addition, on two separate occasions,
the trial judge properly instructed the jury in accordance with
the principles set forth in R. v. W.(D.) (1991), 63 C.C.C. (3d)
397 (S.C.C.).
[17] On balance, when the charge is read fairly as a whole, I am
not persuaded that the jury would have been under the
misapprehension that they could find the appellant guilty beyond
a reasonable doubt based on a lack of evidence. The impugned
instruction might have taken on greater significance had the
appellant not testified. As it is, the jury had the benefit of
his evidence and that of several other witnesses called by the
defence. I note as well that defence counsel [not Mr. Tanovich
or Ms. Freeman] raised no objection to this aspect of the charge.
[18] In the circumstances, I am satisfied that the error was
harmless and occasioned no prejudice to the appellant.
Accordingly, I would not give effect to this ground of appeal.
(b) Prior Consistent Statements
[19] It will be recalled that in 1993, A complained to her mother
and the police about the appellant’s previous misconduct. Crown
counsel led evidence of these complaints in-chief as part of the
narrative. In doing so, he scrupulously avoided eliciting the
details of her disclosure. The appellant concedes that this
evidence was admissible and he takes no issue with the procedure
followed by the Crown.
[20] In cross-examination, defence counsel chose to explore with
A. the details of her 1993 disclosure. In addition, he sought
the names of everyone else she had confided in and the timing and
content of her disclosure to each.
[21] On behalf of the appellant, Mr. Tanovich accepts that this
line of questioning was strategically designed to discredit A and
show that her evidence at trial was the product of embellishment
over time. The following two examples illustrate the point.
[22] In cross-examination, A stated that the first person she
confided in was her aunt R. When asked what she told aunt R, A
responded, “he’s just touching me where I didn’t want him to.”
The defence then called aunt R to say that A had never mentioned
anything disturbing about the appellant.
[23] The second example involves A’s disclosure to her mother in
- In cross-examination, A maintained that she disclosed the
details of the appellant’s prior misconduct to her mother. Upon
being questioned about this by the defence, A’s mother testified
that when she and A met with Constable Allen, she was unaware of
all of the details of the appellant’s earlier misconduct. It was
not until several months later that information came to her
attention which led her to believe that the appellant’s
misconduct was “more serious than what [she] first anticipated.”
[24] The appellant now submits, for the first time on appeal,
that the trial judge erred in failing to warn the jury about the
limited use that could be made of A’s prior consistent
statements. In particular, he submits that the jury should have
been told that these statements could not be used as original
evidence for the truth of their contents.
[25] I reject this submission for two reasons. First, defence
counsel made a tactical decision to elicit A’s prior consistent
statements and have her adopt them. In view of this, it is at
least arguable that the adopted statements became part of A’s
testimony and evidence of the truth of their contents. (See R.
v. McLean, [unreported, March 12, 1993, Ont. C.A.].)
[26] Second, I am satisfied that defence counsel made a conscious
decision not to seek a limiting instruction on the use of prior
consistent statements. As I have pointed out, he chose to elicit
the details of A’s disclosure to discredit her evidence at trial
and show that it was a product of progressive embellishment. In
other words, from the perspective of the defence, the value of
A’s prior statements lay not in their consistency but their
inconsistency and what really mattered was that the jury be
properly instructed on the use of prior inconsistent statements
in assessing credibility. The trial judges instructions in this
regard were flawless. Having adopted that approach at trial, the
appellant cannot resile from it at this stage. (See R. v. Sypes,
[unreported, March 17, 1994, Ont. C.A.].)
(c) Admissibility of Prior Discreditable Acts
[27] Over the objection of defence counsel, A was permitted to
testify about six prior acts of discreditable conduct involving
the appellant. As indicated, these incidents included:
touching A’s legs and shoulders when she was 4;
anal penetration;
positioning himself on top of A and attempting to kiss her;
requiring A to touch his penis;
crossing A’s neck with a knife; and
encouraging cousin K to kiss A.
[28] On the voir dire held to determine the admissibility of
these and other discreditable acts involving the appellant, the
trial judge was informed that the appellant had been tried in
Youth Court and found guilty of sexual assault in connection with
the first three incidents. She was also told that he had been
tried and acquitted in connection with the “knife” and “kissing
K” incidents.
[29] The appellant submits that none of this evidence should have
been admitted because its prejudicial effect outweighed its
probative value.
[30] I see no merit in this submission insofar as it relates to
the four incidents of sexual misconduct by the appellant. At a
minimum, those incidents were admissible as part of the
narrative. They served to explain the appellant’s comment in the
basement, just before sexually assaulting A, that she was “going
to pay because she told.”
[31] In addition, I am satisfied that the four instances of prior
sexual misconduct were properly admissible as similar fact
evidence. They shed light on the appellant’s relationship with A
and disclosed a course of misconduct towards her that belied his
defence of innocent association (see R. v. Litchfield, [1993] 4
S.C.R. 333 at 358). The fact that the prior incidents bore
dissimilarities to the offences charged is not critical. As
Charron J.A. observed at pp. 499-500 in R. v. B. (L.); R. v. G.
(M.A.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.):
It is also important to consider which similarities are truly compelling. In cases of sexual assault, the similarities or dissimilarities between the sexual acts that are alleged are, of course, relevant, but often not as compelling as the circumstances surrounding the incidents. This stands to reason, particularly where there is nothing unusual about the sexual acts in question. In most circumstances, the fact that one complainant was kissed as compared to the other being fondled may not have a whole lot of significance. The allegations all pertain to acts of a sexual nature.
[32] I take a different view of the “knife” and the “kissing K”
incidents. These events bore little similarity to the offences
charged and their probative value was slight. Moreover, the
appellant was tried and acquitted on them. As was pointed out in
R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.) at 355-6, when an
accused has been tried for prior discreditable acts and
acquitted, special circumstances must exist before the prior acts
can be admitted as similar fact evidence. In my view, no such
special circumstances existed in this case. Accordingly, A
should not have been permitted to testify about either incident
and the trial judge erred in ruling otherwise.
[33] That said, I am of the view that the error was harmless and
occasioned no prejudice to the appellant. The incidents in
question were far less serious than the offences charged and this
would have been obvious to the jury. Moreover, the case against
the appellant was very strong, especially when one considers the
medical evidence, the admissible similar fact evidence and the
appellant’s motivation for committing the crimes, evidenced by
his comment “you’re going to pay because you told.” In the last
analysis, I am satisfied that the verdict would necessarily have
been the same had the evidence of the “knife” and “kissing K”
incidents been excluded. Accordingly, I would not give effect to
this ground of appeal.
(d) Failure to instruct the jury on the use that could be made
of the prior acts of discreditable conduct
[34] The trial judge told the jury that the evidence of the six
acts of prior discreditable conduct could be used for the limited
purpose of “assist[ing] you to determine whether or not the
accused is guilty or is not guilty …” of the offences charged.
She also told the jury that before they could use the evidence
for this limited purpose, they must be satisfied that the
appellant was likely the same person who had committed the prior
acts. If so satisfied, the jury could then use the prior acts to
draw “…a reasonable inference that it was the accused who was
involved in each of these incidents, as alleged in the
indictment.”
[35] The appellant submits that these instructions were confusing
and prejudicial. He contends that the trial judge effectively
told the jury that they could convict the appellant if they were
satisfied that he engaged in the earlier acts of misconduct.
[36] I agree that the impugned instructions were confusing and
unhelpful. They left the jury with the impression that the prior
discreditable acts could be used to establish identity when
identity was a non-issue. That said, for two reasons, I am not
satisfied that they occasioned any real prejudice to the
appellant.
[37] First, the trial judge warned the jury, in the clearest of
terms, that the appellant was not on trial for his earlier
misconduct and that his previous acts could not be used to show
that he was the type of person likely to commit the crimes
charged.
[38] Second, as I have pointed out, apart from being admissible
as part of the narrative, there were other ways in which the
prior discreditable acts could be used to support the Crown’s
case. In the circumstances, far from prejudicing the appellant,
the trial judge’s instructions limiting the prior misconduct to
identity could only have enured to his benefit, or at least had a
neutral effect, since identity was a non-issue. (See R. v. B.
(C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717 at 736-737.)
Conclusion
[39] I see no merit in any of the grounds of appeal. Accordingly,
I would dismiss the appeal from conviction on count 3.
APPEAL FROM CONVICTION ON COUNT 1: SEXUAL ASSAULT ON “C”
Overview
[40] C and the appellant are cousins. C was 11 years old at the
time of trial and 7 or 8 at the time of the incident giving rise
to the charge of sexual assault.
[41] C proved to be an unresponsive witness at trial. She failed
to respond to most of the questions put to her in examination in-
chief and cross-examination.
[42] In the first segment of her examination in-chief, Crown
counsel was only able to establish the names of her parents and
siblings and the fact that she had previously visited her
grandmother E. After a recess, the examination continued and it
was determined that C had spoken to the police about the
appellant in the last couple of years. She remembered talking to
a police officer named Kathy Gerrie and she recalled that the
conversation was recorded. Following a second recess, C stated
that she had told the truth to Officer Gerrie. She also
identified a note, in her handwriting, which read as follows:
“He put me on the bed and had sex will [sic] me … [P.S]” The
note was signed by C and witnessed by Officer Gerrie on February
14, 1996. C stated that she was telling the truth when she
wrote the note. No evidence was led as to when the note was
written.
[43] After C had identified the note, Crown counsel asked that
its contents be read into the record. Defence counsel objected
to this, suggesting instead that the note be filed as an exhibit.
The trial judge acceded to his request and the note was marked as
an exhibit and shown to the jury.
[44] Crown counsel then attempted to continue the examination in-
chief, but to no avail. C failed to respond to any further
questions. In view of this, he moved in the absence of the jury
to have C’s testimony from the preliminary hearing admitted into
evidence pursuant to s. 715 of the Code. In the alternative, he
requested that a videotaped statement, made by C on February 17,
1996, be admitted into evidence pursuant to s. 715.1 of the Code.
To that end, a voir dire was held and Crown counsel led evidence
from Constable Gerrie and C.
[45] Constable Gerrie testified that the videotape contained two
statements from C, one recorded on the morning of February 17,
1996, the other later that day. The second interview proved
necessary because in the morning session, Constable Gerrie found
it extremely difficult to elicit information from C. At the
outset of the interview, C’s father was present and C was
reluctant to say anything. She was somewhat more forthcoming
after her father chose to leave the room but even then, she
admitted that she was embarrassed and that it was “really hard”
for her to talk.
[46] According to Constable Gerrie, the videotape was made three
days after she first had contact with C. On that occasion, she
attended at C’s school in response to a call from a Children’s
Aid Worker. From what she could make out, four days earlier, C
had told a family member that she had been sexually abused and
Children’s Aid was contacted.
[47] At the school, Constable Gerrie conducted an audiotaped
interview with C, only to learn later that the conversation was
inaudible because the tape was defective. As a result, she made
arrangements to meet with C at the police station on February
17th to conduct a videotaped interview. Constable Gerrie
testified that C was 9 years old at the time the video was made
and she confirmed that the incident involving the appellant
occurred several years earlier.
[48] C’s testimony in-chief on the voir dire was brief. After
viewing the videotape, she remembered meeting with Officer Gerrie
and she confirmed that her statements in the videotape were true.
[49] In cross-examination, C admitted that the incident with the
appellant occurred long before her videotaped statements, perhaps
as much as two years. She also stated that she told her parents
about the incident at the time. Many other questions put by
defence counsel went unanswered.
[50] At the completion of the voir dire, after taking submissions
from counsel, the trial judge refused to admit C’s testimony from
the preliminary hearing because she was not satisfied that C was
refusing to give evidence. She did, however, admit the videotape
into evidence, having satisfied herself that the threshold
requirements of s. 715.1 had been met.
[51] In the video, C stated that she had been sexually assaulted
by the appellant on one occasion. She claimed that the incident
happened in the spring or summer when she and the appellant were
visiting grandmother E and that the sexual assault occurred in a
shack when no one else was around. According to C, the appellant
grabbed her, put her on the bed and pulled his pants down
halfway. He then positioned himself on top of her and “humped”
her. C stated that she was fully clothed throughout the
incident.
[52] During the interview, C was shown her handwritten note
stating that the appellant had “sex” with her. When asked what
she meant by “sex,” she replied, “both persons clothes are off.”
She then pointed to the note and said, “that word right there is
supposed to be humped.” When asked what “humping” meant, she
replied, “I forget.”
[53] C was asked when it was that she first told her mother and
father about the incident. She stated that she thought she had
mentioned it at the time but “they don’t remember that I told
them.”
[54] In the videotape, C also reported that she had been sexually
abused by her brother on eight or nine occasions. According to
C, the abuse commenced when she was five or six years old and
continued thereafter for several years.2
[55] The video was played for the jury and Crown counsel
indicated that he had no further questions of C. Defence counsel
then attempted to cross-examine C, but for the most part this
proved to be an exercise in futility. C failed to respond to
many of the questions asked of her. She did, however, admit that
she specifically remembered telling her mother and father about
the incident with the appellant on the day it happened or the
next day.
[56] The appellant testified and denied any sexual misconduct
with C. He admitted that on occasion, he and C were together at
grandmother E’s house. He maintained, however, that he did not
take C to the shack and at no time did he sexually assault her.
Grounds of Appeal
[57] The appellant raises the following four grounds of appeal:
a) the jury was misdirected on the definition of
reasonable doubt;
b) the trial judge erred in failing to direct the jury
that the handwritten note could not be used as original
evidence;
c) the trial judge erred in failing to edit the videotape
and remove any references to the handwritten note from
it; and
d) the videotape should not have been admitted into
evidence under s. 715.1 of the Code because it was not
made within a reasonable time after the alleged
incident.
(a) Reasonable Doubt
[58] This ground of appeal has been addressed in the reasons
relating to A and nothing further need be said about it.
(b) Use of the handwritten note as original evidence
[59] In her review of C’s evidence, the trial judge told the jury
that they could consider the contents of her handwritten note
“which she said was true.” She did not warn the jury against
using the note for the truth of its contents.
[60] The appellant submits that the handwritten note was a prior
consistent statement and as such, the jury should have been told
of its limited use. He contends that the jury was wrongly led to
believe that the note could be used as original evidence for the
truth of its contents.
[61] The answer to this submission lies in defence counsel’s
strategy at trial, evidenced in part by his failure to seek a
limiting instruction on the use of C’s handwritten note. Defence
counsel chose to use the note to discredit C. In it, C wrote
that the appellant had “sex” with her. In her videotaped
statement, C stated that “sex” involved two people without
clothes. She then stated that she was clothed during the
incident with the appellant and that the word “sex” in the note
should have been “humped.”
[62] Defence counsel relied on these inconsistencies to discredit
C. In his closing address, he effectively characterized the
handwritten note as a prior inconsistent statement and invited
the jury to treat it as such in assessing C’s credibility.
Having adopted that approach, what really mattered was that the
jury be properly instructed on the use of prior inconsistent
statements in assessing credibility. In that regard, as noted
earlier, the trial judge’s instructions were flawless. Moreover,
in her review of the evidence referable to C, the trial judge
specifically identified the inconsistencies in the handwritten
note and the videotaped statement:
Consider the description as to sex, being when both people have no clothes on, and [C] saying that she had clothes on, and that the accused “humped” her.
[63] In the circumstances, I am satisfied that defence counsel’s
failure to object was strategic. He was content with the
instructions on the note and wanted nothing further said about
it. Having taken that position at trial, the appellant cannot
resile from it at this stage. (See R. v. Sypes, supra)
(c) Failure to edit the videotape
[64] The appellant submits that the trial judge should have
edited the videotape and removed all references to the
handwritten note from it.
[65] I see no merit in this submission. Defence counsel made no
such request at trial. The reason is obvious. He did not want
the references to the note deleted from the videotape because, as
I have pointed out, he planned to use the apparent
inconsistencies between the handwritten note and the videotaped
statement to discredit C. Accordingly, I would not give effect
to this ground of appeal.
(d) Was the videotape made within a reasonable time of the
alleged offence?
[66] Section 715.1 of the Criminal Code reads as follows:
715.1 In any proceeding relating to an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 163.1, 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273, in which the complainant or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant or witness describes the acts complained of, is admissible in evidence if the complainant or witness, while testifying, adopts the contents of the videotape.
[67] It was common ground at trial that the videotape was made
approximately two years after the alleged offence. In view of
this, defence counsel took the position that the videotape should
not be admitted under s. 715.1 because the statutory requirement
that it be made “within a reasonable time of the alleged offence”
had not been met.
[68] The trial judge rejected this submission for the following
reasons:
The videotape, in the court’s opinion, was
made within a reasonable time after the alleged
offence.
The delay of approximately two years I
do not find to be unreasonable in light of a
number of cases, one only of which has been
referred to by the Crown, in which a delay of
reporting a sexual assault is not unusual
with children and has to be looked at very,
very carefully. On the facts of this case I
do not find that the delay was unreasonable,
and, further, the taping of the interview
took place three days after the situations
came to the police’s attention, so due
diligence was accomplished by way of the –
once the matter came to the attention of the
police. However, I am mindful the section
reads,
“A videotape must be made within a
reasonable time after the alleged
offence”,
and because this particular situation involves
a young child I do not find that a two year delay
is in any way unreasonable.
[69] The appellant takes no issue with the general proposition
that young children often delay disclosure and he accepts that
delay in disclosure can properly be taken into account in
assessing whether the reasonable time requirement in s. 715.1 has
been met. (See R. v. L. (D.O.) (1993), 1993 46 (SCC), 85 C.C.C. (3d) 289
(S.C.C.) per L’Heureux-Dub‰ J. at pp. 322 and 323). He
maintains, however, that in this case, there was no explanation
for C’s late disclosure and the trial judge therefore erred in
concluding that delay in disclosure could reasonably account for
the two year gap between the time of the offence and the making
of the video. I disagree.
[70] The reasons of the trial judge for finding that the
videotape was made within a reasonable time of the alleged
offence are not helpful. In effect, she found that the delay in
this case was not unreasonable because C is a young child and
young children often delay reporting a sexual assault.
[71] In considering whether a videotape has been made within a
reasonable time, the court must balance a number of factors, the
most important being the reasons for the delay and the impact of
delay on the child’s ability to accurately recall the events in
issue (see R. v. L. (D.O.) at 323). In this case, there was
evidence in the record, although not referred to by the trial
judge, to explain the delay.
[72] At trial, C presented as a timid, fearful child who found it
extremely difficult to talk to anyone about the incident with the
appellant. This assessment of C is amply supported by the record
and graphically illustrated in the videotape. With this in mind,
it is reasonable to conclude that C’s late disclosure was
probably a product of her timidity and an inability to
communicate because of fear and embarrassment.
[73] The delayed disclosure could also be attributed in part to
C’s relationship with the appellant. The appellant is C’s older
cousin and it is understandable that C would be reluctant to
disclose his misconduct for fear that this would put him in
serious jeopardy.
[74] Finally, C’s delayed disclosure could also be explained by
the fact that she was apparently victimized by her brother before
and after the incident with the appellant. This could only have
added to C’s confusion and fear and made it all the more
difficult for her to disclose.
[75] In sum, contrary to the appellant’s submission, I am
satisfied that there was ample evidence in the record to explain
C’s late disclosure. I am further satisfied that it was open to
the trial judge to rely on the delay in disclosure to justify her
finding that the videotape was made within a reasonable time of
the alleged offence. Although two years is a long delay, C was
not so young that this delay would raise obvious concerns about
her ability to accurately recall the incident with the appellant
(see R. v. F. (C.C.) (1997), 1997 306 (SCC), 120 C.C.C. (3d) 225 (S.C.C.) at
234). In addition, there is no suggestion that anything occurred
in the two year time frame that may have influenced C so as to
cast doubt on the reliability of her videotaped statements; nor
is there anything to indicate that C was motivated to implicate
the appellant in a crime he did not commit. Admittedly, there
were frailties in her recollection, including her reference to
“sex” in the handwritten note and her belief that she had
reported the incident to her parents shortly after the event.
Nonetheless, on balance, while I consider this to be a borderline
case, I am not persuaded that the trial judge erred in admitting
the videotape.
[76] For these reasons, I would not give effect to this ground of
appeal.
CONCLUSION
[77] I see no merit in any of the grounds of appeal.
Accordingly, I would dismiss the appeal from conviction on count
SENTENCE APPEAL
[78] In view of my conclusion that there is no merit in the
appeal from either conviction, I would grant leave to appeal
sentence but would dismiss the appeal.
“M.J. Moldaver J.A.”
“I agree: J. Carthy J.A.”
“I agree: J. MacPherson J.A.”
Released: April 28, 2000
1 It was not until 1996 that the police fully investigated all of
A’s complaints. At that time, the appellant was charged in youth
court with various offences arising from the pre-1994 complaints
and in adult court with respect to the instant offences.
2 Defence counsel did not seek to have C’s allegations against
her brother edited from the videotape. The trial judge, however,
warned the jury that they were not to consider those allegations
in assessing the appellant’s guilt or innocence.