WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) 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 complainant of the right to make an application for the order; and

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

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.T., 2013 ONCA 350

DATE: 20130529

DOCKET: C55610

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

C.T.

Respondent

Nadia Thomas, for the appellant

Bernadette Saad, for the respondent

Heard: March 25, 2013

On appeal from the acquittal entered by Justice Robert Graydon of the Ontario Court of Justice on May 16, 2012.

Juriansz J.A.

[1] The Crown appeals from the acquittal of the respondent on charges of invitation to sexual touching, sexual assault and sexual interference relating to the respondent's alleged actions with his four-year-old stepdaughter. The primary basis of the Crown's appeal is that the trial judge erred by excluding a portion of the complainant's video-recorded police interview.

[2] The complainant initially disclosed to her grandmother, who was babysitting her, that the respondent played a “secret game” with her. The “secret game” was a naked game that only a little girl and a man could play together. The complainant said that she was not supposed to talk about it. The complainant agreed to act out how the game was played and did so using a toy hammer, toy pot and maraca. When the complainant overheard her grandmother reporting this event to her mother, she became hysterical, crying loudly and saying “we’re not supposed to talk”. The respondent, who arrived a few minutes later, immediately and emphatically denied the allegations.

[3] The police conducted two video-recorded interviews of the child. The first was conducted two days after the complainant’s disclosure, when the grandmother took the complainant to the police station. The complainant was interviewed alone in a room with a police officer who was a stranger to her. The complainant indicated that she played games with the respondent but that she did not know what she did with the respondent when her mother was away. The interview was stopped because the complainant began to cry and wanted to go back to her grandmother.

[4] The following day the police conducted a second video-recorded interview in a different setting. This time the complainant was allowed to sit on her grandmother's lap and a Children's Aid Society (CAS) worker was present. Initially the child said she was “not sure” when asked whether she had touched the respondent’s “private parts” and whether he had touched her “private parts”. Following these questions she stated: “Whatever you ask me you still have to make it stop. […] As long as what I say you still have to make it stop.”

[5] After the police interviewer explained that “private parts” mean “back-bum” and “front-bum”, the complainant demonstrated, using stuffed animals, how mutual oral sex occurred with the respondent. She indicated by nodding “yes” that the respondent’s tongue had touched her “front-bum”. In words, she confirmed that the respondent’s tongue was used. She also said:

▪ She played the secret game “lots more than one time” at her house. They played the game on “Mommy and [the respondent]’s bed” while her mother was out delivering pizza. She and the respondent were “laying down” during the secret game.

▪ She nodded “yes” that the respondent asked her not to tell about the game. She also said that she couldn’t tell because she might get in trouble.

▪ When asked whether the respondent touched her front-bum with other parts of his body besides his tongue, she said: “He touches the same part as I touch him.”

▪ Other than touching her “front-bum” with his tongue and his hands, the respondent does not touch the rest of her during the game.

▪ Her clothes and the respondent’s clothes are “off” when they play the scary game.

▪ She said “He does the same thing as I do” regarding tongue going on “front-bum”.

[6] Later in the interview, the complainant, on her own initiative, asked the interviewers whether they had ever watched the movie Ghostbusters. Without prompting, she went on to recount how the respondent, like the character “Slimer” in that movie, “makes slime like Slimer and the slime isn’t green, it’s white”. She explained that the slime doesn’t come right away and demonstrated on a stuffed animal that you have to rub it to make it slime and that it takes a few minutes. This was the section of the recorded statement that the trial judge excluded.

[7] The trial began on March 13, 2012, when the complainant was five years and three months old. At trial, video recordings of both interviews were played as the complainant’s evidence-in-chief. The Crown asked her only a few questions. She testified that she did not tell the police officer about the “scary game” in the first interview because she “didn’t have the police bear at that time”. She agreed that having the police bear made it easier for her to talk about it. She also testified that what she had said about the scary game in the second interview was the truth. She stated that she played the scary game with the respondent in the bedroom.

[8] The cross-examination of the complainant took place after an adjournment of one week. More than 100 times in cross-examination she said she did not remember or agreed with suggestions she did not remember. As well, she responded to other questions of defence counsel by simply stating “you’re so silly”, or “I’m laughing at you”, or “you’re funny”.

[9] Defence counsel asked the complainant some general questions about the movie Ghostbusters but did not approach her reference to “Slimer” and her “Slimer” ejaculation allegation. He asked if she had seen the movie and she responded that she had. She agreed with him that the movie had ghosts in it as well as the big marshmallow man and that she had watched it several times at home with the respondent and her mother. Defence counsel, however, did not ask any questions about what the child had said in the recorded statement about how the respondent was like the character “Slimer”.

[10] After the cross-examination ended, the trial judge permitted a liberal re-examination by Crown counsel and then allowed defence counsel an additional opportunity to cross-examine the child. Defence counsel asked her about the props that had been present at the police station and that had been used to demonstrate the respondent’s actions. Defence counsel suggested to the child that she was telling the truth when she had previously answered many of his questions “I don’t remember”. She agreed and also agreed that this was because sometimes what she was being asked about was from a while ago. However, in the further cross-examination, defence counsel again did not take the initiative to ask the child about the Ghostbusters movie and her “Slimer” allegation.

[11] When defence counsel indicated to the court that he had no further questions, the trial judge suggested to him that he may want to ask her “directly what her knowledge is about when she raised the subject matter of Ghostbusters and what flowed from that.” Defence counsel proceeded to ask some general questions about the movie and the “Slimer” character and the complainant responded to them. Then defence counsel asked whether she remembered telling the CAS worker and the police officer “something about [the respondent] and Slimer” and she indicated that she did not. She said she did not remember telling them about something that happened with her and the respondent that reminded her of that movie. Defence counsel then asked her if “today” she remembered anything that happened between her and the respondent that reminded her of the movie Ghostbusters, and she answered “no”.

[12] The respondent testified and denied committing the offences. He testified that he did play a “scary game” with the complainant once or twice a week. He explained that the “scary game” was “like hide and seek but hide and scare”. In the game the child would look for him and he would jump out and say “boo”. He testified that the complainant hated having her hair washed out and that when he bathed her he would refer to the shampoo as “white slime”. The complainant could “pretend just like Slimer” from Ghostbusters that he had slimed her head when he squeezed the shampoo bottle. The respondent also said that, when putting the child to bed, he would give her a “body slam” on to the mattress.

The Trial Judge’s Ruling

[13] The trial judge found that the child’s unresponsiveness had, in effect, denied the respondent the right to cross-examine her. He stated that he was “invested with a gatekeeping function” and was “constitutionally obligated to ensure an accused receives a fair trial”. He said that though the child had been physically available for cross-examination, cross-examination “proved to be a hollow meaningless right”. He pointed out that, in response to questions from defence counsel, she had testified that she did not remember more than 100 times and had answered other questions by simply stating “you’re silly”, or “I’m laughing at you”, or “you’re funny”.

[14] The trial judge noted that after “defence counsel was requested by this Court to direct some of his questions of [the complainant] to the subject matter of the movie Ghostbusters and what followed from that”, the complainant easily answered questions of defence counsel about the contents of the Ghostbusters movie but would not remember or could not remember:

• telling the CAS worker and the police officer something about [the respondent] and Slimer;

• telling the CAS worker and the police officer that something happened with her and [the respondent] that reminded her of that movie; and

• anything that happened between her and [the respondent] that reminded her of the movie Ghostbusters.

[15] Thereupon the trial judge found that the respondent’s Charter rights under sections 7 and 11(d) had been infringed. To ensure the trial was fair he ruled that all of the questions and answers about Ghostbusters and the “Slimer” references in the second video-recorded interview were inadmissible, together with any reference by any witness at trial to the subject, and the part of the respondent’s testimony in which he attempted to explain the child’s “Slimer” ejaculation allegation.

Analysis

[16] The trial judge’s ruling cannot stand for several reasons.

[17] First, the trial judge erred by making the order without indicating he was considering making it and giving the Crown an opportunity to address the issue. There was no application by the defence to exclude the testimony. In fact, after the child had been excused as a witness, Crown counsel had indicated that if the defence intended to argue that there had been no opportunity to meaningfully cross-examine he had submissions to make in closing argument. However, at no time did defence counsel suggest that his client’s section 7 and 11(d) Charter rights had been violated. The trial judge should not have made the order without hearing from the parties. The duty of a trial judge is to ensure the trial is fair to all parties.

[18] Though this is a sufficient basis to set aside the order, I also accept the Crown’s submissions that the order was not appropriate in the circumstances of this case.

[19] The child’s unresponsiveness at trial about the “Slimer” ejaculation allegation, which seems to have been the main basis of the ruling, had no connection to the defence’s opportunity to conduct the cross-examination it wished. The defence closed its cross-examination twice without touching on the child’s “Slimer” ejaculation allegation and eventually explored the subject only when prompted by the trial judge. It is apparent that the defence had made a tactical decision to stay away from the child’s “Slimer” ejaculation allegation to avoid the significant risk that the child would affirm it. The defence’s strategy was to counter the allegation with the respondent’s testimony about “white slime” being squeezed from the shampoo bottle when the respondent would wash the child’s hair.

[20] I have difficulty in understanding how the child’s unresponsiveness on the subject worked any unfairness to the defence when it was the trial judge and not the defence who wanted the child to be questioned at trial about the allegation. In fact, had the additional questions posed at the request of the trial judge elicited testimony devastating to the defence, as could well have happened, the defence might have complained about the trial judge’s intervention.

[21] In any event, the consideration of whether to exclude a portion of a recorded interview must take into account that the primary goal of s. 715.1 is to overcome the effects of the passage of time on the recollection of young children. Cory J. explained this in R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at para. 21:

It can thus be seen that the primary goal of the section is to create a record of what is probably the best recollection of the event that will be of inestimable assistance in ascertaining the truth. The video record may indeed be the only means of presenting a child's evidence. For example, a child assaulted at the age of three or four years may have very little real recollection of the events a year or two later when the child is attempting to testify at trial.

[22] At para. 23, Cory J. noted that:

Numerous Canadian academic writers have noted and stressed the goals of s. 715.1. For instance, Professor Bala stated, in Nicholas Bala and Hilary McCormack, "Accommodating the Criminal Process to Child Witnesses: L. (D.O.) and Levogiannis" (1994), 25 C.R. (4th) 341, at p. 343:

One of the main purposes of this provision is to ensure that the courts have access to the best description possible of the events, as a child is more likely to have an accurate and complete memory of the events when the videotape is made, than several months later at the time of trial. Children are also more likely to fully remember and relate often painful memories in a relatively relaxed interview than in the strange, stressful, and formal court environment.

[23] An order excluding a portion of a video recording admitted under s. 715.1 because of a child’s genuine inability to remember seems to run counter to the primary purpose of the provision.

[24] Cory J. also noted, at para. 22, that a further aim of s. 715.1 is to obtain the child’s story in a setting that is “less overwhelming” than a courtroom:

The important subsidiary aim of the section is to prevent or reduce materially the likelihood of inflicting further injury upon a child as a result of participating in court proceedings. This will be accomplished by reducing the number of interviews that the child must undergo and thereby diminish the stress occasioned a child by repeated questioning on a painful incident. Further, the videotaping will take place in surroundings that are less overwhelming for a child than the courtroom.

[25] In this case the trial judge did not arrive at a determination of the reasons for the child’s unresponsiveness. He simply said that the child “would not remember or could not remember”. There was evidence that, if accepted, would indicate the child’s unresponsiveness was due to a genuine inability to remember. The child agreed with defence counsel that she answered his questions by saying “I don’t remember” because she did not in fact remember.

[26] The record also discloses a basis that could support the inference that the courtroom setting and trial process played a role in the child’s unresponsiveness. In cross-examination the child had explained that she did not disclose anything in the first police interview because she was “too scared that day” and that the next day she wasn’t so scared because her grandmother was with her. As well, in the midst of her cross-examination, the child indicated she was tired and needed a break. While the trial judge had accommodated her with regular breaks during the in-chief viewing of the lengthy video recordings, there was only one short adjournment during the cross-examination. The cross-examination was not interrupted the second time the child indicated she needed a break.

[27] The trial judge should not have made the ruling without resolving his concern that the child “would not remember”. Absent a finding that the child was deliberately evasive the record discloses no basis for excluding the portion of the video.

[28] The trial judge’s concern the child “would not” rather than “could not” remember may have been affected by a misapprehension of the child’s age and the time that elapsed between the events and trial. The reasons for judgment say, at one point, that “[the complainant] was five-and-a-half years old during the time period covered by the information, at the time she was interviewed by the police, and six years of age at trial.” In fact the she was four-and-a-half years old during the events leading to the charges, and five years and three months old at trial.

[29] Finally, I observe that the defence was able to conduct a cross-examination that was not meaningless. In addition to the matters mentioned above she:

▪ Acknowledged that it was true that the respondent scared her a lot while she lived with him because he hid everywhere. She also said that this was not part of a game that he was playing with her.

▪ She explained that she did not remember telling her grandmother about the secret game because it was last summer.

▪ While she did not remember where she played the secret game or what they did, she said she did remember playing the secret game with the respondent. The child said that she did not remember her grandmother asking about the secret game, nor did she remember telling her grandmother about the secret game. She clarified, however, that this was because she did not “tell” her grandmother about the secret game. Instead, she “showed” her grandmother the secret game and she did remember showing her.

[30] It is far from apparent to me that the respondent was completely denied the right of cross-examination.

Conclusion

[31] For these reasons, I would conclude that the trial judge erred by excluding a portion of the complainant’s recorded statement. I would allow the appeal and remit the matter for a new trial.

“R.G. Juriansz J.A.”

“I agree J.C. MacPherson J.A.”

“I agree R.A. Blair J.A.”

Released: May 29, 2013