Court File and Parties
File No.: D55033/11 Date: 2014-10-06 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1
Between: Robert Scarlett, Applicant (father) And: Robyn Farrell, Respondent (mother)
Before: Justice Robert J. Spence
Evidentiary Ruling Argued in a Continuing Trial begun September 15, 2014 Reasons for Ruling released on 6 October 2014
Counsel:
- Mr. Danny Bertao, for the applicant, father
- Ms. Andrea Kim, for the respondent, mother
The Issue
[1] This is a mid-trial ruling on the admissibility of certain video recordings sought to be introduced into evidence by the father. The mother opposes the admissibility of the videos.
[2] The trial commenced September 15, 2014 and continued for five days. It is scheduled for a further three days, beginning November 14, 2014.
Context
[3] The mother has sole custody of the parties' seven year old daughter (the "child" or "A."). The father is seeking an order at the end of trial that he be permitted access to the child. The mother is opposed to any access at all. The father has not had access for approximately 2-1/2 years.
[4] The mother's assertion at trial is that access is not in the child's best interests. In part, she submits, the child has a fear of the father arising from an alleged sexual assault which the mother says the father inflicted on the child about 2-1/2 years ago.
[5] The father denies that the child has any fear of him. More specifically, he asserts that any alleged statements made by the child, that might suggest she is fearful of him, originate from the mother who is coaching the child.
[6] The three video recordings were taken by the father in 2012 when the child was about five years old, after the date of the alleged sexual assault. The father says the videos have probative value in that the child is clearly shown as having fun and is relaxed in her father's presence.
[7] Further, because the videos were taken after the date that father was alleged to have sexually abused the child, the father argues that the contents of the videos would tend to rebut the assertion that the father had done anything harmful to the child, thus tending to prove that the alleged sexual abuse did not occur. And, if the sexual abuse did not occur, the child would have no reason to be fearful of the father, contrary to the mother's assertions.
[8] As part of the voir dire on the issue of admissibility, I watched all three videos in court, in the presence of the parties.
Mother's Position
[9] Mother argues that the videos were taken surreptitiously. It is undisputed that she was present when the father recorded all three videos. However, she says that she was not aware that the father was taking the videos, or any of them.
[10] Mother argues that the court ought to find that the recordings were taken surreptitiously and, because of this, they are presumptively not admissible.
Father's Position
[11] Father denies that mother was unaware that he was taking the videos. However, he does state that while he was taking the recordings the mother specifically asked that he not use them against her in court.
[12] Father argues that the videos have probative value pertaining to the child's alleged fear of the father and are admissible to rebut that allegation of fear.
The Videos
[13] As part of the voir dire on the issue of admissibility, all three videos were played in the courtroom. In each of the videos there were three children present. Apart from A., the other two children (a little boy and a little girl) were two of the father's other children from another mother.[1] In addition, there were two adult females, neither of whom actually appeared, but whose voices could be heard periodically throughout the videos.
[14] From the evidence presented during the voir dire, it appears that the other two adult females who were present were the mother herself, as well as the mother of one of the other children in the video. The identity of these two adult females was not seriously contested.
[15] The father's voice could also be heard during the taking of the videos, although he himself as the video recorder did not actually appear in any of them.
[16] The videos themselves were grainy in parts and, in some places so grainy that it was difficult to see what was taking place. The audio quality, while not high, was for the most part sufficient to ascertain what was being said when the various individuals spoke in clear voices.
[17] What did the videos reveal? The first video, which is taken at the father's apartment, lasts about two minutes. The adult male, identified as the father, says "A. do you miss your daddy"? The child is non-verbal in response to that question. The camera (a cell phone camera) continues to move around while the recording continues. The adult females can be heard in the background, including the mother's voice, who is laughing at certain points in the recording. A. is essentially non-verbal throughout this recording.
[18] The second video, which lasts about four minutes, takes place in the nearby mall, shortly after the events depicted in the first video. The same persons appear to be present in the second video. The video shows A. to be on a rocking toy, but she is not saying anything. The camera is waving all over, which suggests that it was not being hidden from the view of those present. Throughout this video the camera was mostly focused on the other little girl, who appears to be happy. The child, A., is for the most part unseen in this video.
[19] The third video takes place back at the father's apartment, again, shortly after the events depicted in the second video. The third video lasts about 17 minutes. This video reveals somewhat more of A. than either of the first two videos. All three children are singing "Rudolph the red nose daddy". One of the adult females can be heard to say "one, two, three, hit it".[2] An adult female is heard laughing in the background.[3]
[20] During the course of this video, father is saying to the children "we want to see our daddy every day". The other little girl states:[4] "A. is not singing with me". Father continues to say to the children "we want to see daddy every day, just use those words". Again, the other little girl says: "wait until A. sings with me".
[21] Mother acknowledges that she is the one who then says "why don't we all sing . . . if you're happy and you know it clap your hands". The other little girl is repeatedly seen to be whispering to A., but her whispered words cannot be heard.
[22] During the entire course of this third video, A. is in the presence of her two siblings and her mother, as well as the other mother, while the father continues to use his phone camera to record the events in that video.
[23] Throughout this third video, the camera is mostly focused on the other little girl, very little of the camera being directed toward A. Few if any words can be heard emanating from A.
The Law and Discussion
[24] In Seddon v. Seddon, [1994] B.C.J. No. 1062 (S.C.), Thackray, J. was faced with the issue of whether to admit into evidence audio and video tapes that may have been recorded surreptitiously. The party seeking to admit those tapes argued that even if the tapes were illegally or surreptitiously obtained, it was in the interests of justice to admit them into evidence. However, at paragraph 25, the court concluded:
I am of the opinion that is not desirable to encourage the surreptitious recording of household conversations, particularly so when it is done in the family home and the conversations are between family members. This is an odious practice.
[25] In Hameed v. Hameed, 2006 ONCJ 274, Justice Stanley B. Sherr was faced with a similar issue. At paragraph 11, Justice Sherr stated [my emphasis]:
Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them.
[26] And at paragraph 13, Justice Sherr concluded [my emphasis]:
The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so.
[27] Justice Sherr decided in that case that the father had failed to establish that compelling reason and thus excluded the tapes from evidence.
[28] However, a different outcome was reached in Reddick v. Reddick, [1997] O.J. No. 2497 (Ont. Gen. Div.), a decision of Bell J. At paragraph 24, Justice Bell concluded [my emphasis]:
After reviewing all of the evidence on the voir dire, I conclude that the evidence of tape-recorded conversations between the mother and the children which is sought to be introduced is relevant, reliable and probative. In the particular circumstances of this case, the fact that the evidence goes to such important issues of parental alienation and inappropriate pressure on the children leads to the conclusion that it should be admitted in the best interests of the children. That would outweigh any perceived unfairness relating to the lack of early disclosure and the unavailability of some of the earlier tapes, the court's repugnance of illegal conduct and the general need to discourage the taping of private communications between parent and child. Accordingly, the evidence sought to be adduced shall be admitted.
[29] While Bell J. did admit the recordings into evidence, the approach to this issue was not necessarily different to that taken in Hameed, given the "important issues [for example, of parental alienation and inappropriate pressure on the children] [which] leads to the conclusion that it should be admitted in the best interests of the children".
[30] Toope v. Toope, is a decision of Cook J. At issue in that case was whether surreptitiously recorded conversations taped by the child's mother should be admitted into evidence in a custody case. At paragraphs 28 and 29, Cook J. stated [my emphasis]:
I find that the tapes and transcripts are relevant to the issues before the Court, especially in considering whether Mr. Toope planted the seeds of parent [sic] alienation. The presiding judge who will deal with the merits of the application will determine the reliability and probative value of the tapes and transcripts when he or she considers all of the evidence.
Adam's best interests must be the paramount consideration. This outweighs any procedural unfairness relating to the lack of early disclosure of the tapes and transcripts. It also outweighs this Court's repugnance of illegally taping telephone conversations without knowledge or consent. In short, with a degree of reluctance, but also by not condoning such calculated subterfuge, the evidence sought to be adduced can be considered at the hearing of the application on its merits.
[31] Although these cases may seem to take different approaches to the admissibility of surreptitious recordings of family conversations or events, in my view, all of the cases can be reconciled with one another. All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value, and if, as Justice Sherr stated, the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court's need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court.
[32] Mother relied on the case of Zinyama-Mubili v. Mubili, 2010 ONSC 3928 for the proposition that videos ought not to be admitted into evidence where there is evidence that the videos have been selectively edited in such a way as to suit the purposes of the party taking those videos. I agree that if that if there was evidence of selective editing, or if the videos were otherwise a misrepresentation of what actually occurred, the court will be reluctant to admit them into evidence. However, no such evidence exists in this case.
[33] There are no date or time stamps on the three video recordings. However, I do not find that fact to be objectionable to the inclusion of these videos, as there was no evidence in the voir dire that the recordings were in any way altered, or that they were taken at a different time than as represented in the videos and in the supporting viva voce evidence which was elicited on the voir dire.
[34] Further, it is clear from the recordings that the child was approximately five years old at the time of the recordings, which would have been her correct age in 2012 when the father says that he took those recordings. There is no evidence to suggest otherwise.
[35] In other words, there are no real authenticity issues surrounding the videos, or the making of them.
[36] The mother herself acknowledges being present at the time all three videos were taken. She did not give any evidence that the recordings were not an accurate reflection of what occurred or that they somehow misrepresented the true state of affairs at the time of the recordings.
[37] Mother denied having any knowledge whatsoever that the videos were being recorded and she says that she was unaware of their very existence, even though they had apparently been disclosed to her former solicitor some two years prior to the start of this trial.
[38] Father said that while he did not ask mother for permission to make the recordings, she was aware that the recordings were being made. In fact, when mother saw that father was making the first recording, she specifically asked the father to promise not to use the recording "against me in court" (according to the father's testimony). There was no evidence that the father made such a promise in response to the mother's request, or indeed that he made any other response to mother's request concerning that first video. The father also testified that the mother was "uncomfortable with me filming".
[39] Insofar as the issue of mother's awareness that the videos were being made, I prefer the evidence of the father to the evidence of the mother, for a number of reasons.
[40] First, it makes little sense that the father would testify that the mother had specifically asked him not to use the recording in court, unless she had actually said that. Such an assertion by the father is not something that would be helpful to his case.
[41] Second, it would make little sense for him to state that the mother was uncomfortable with the father's actions in taking the recordings, as this assertion would also be contrary to father's own litigation interests.
[42] Both of the foregoing pieces of evidence from the father could only potentially hurt his argument, rather than assist it, as this evidence would suggest that he was making the recordings without permission, something which a court might find to be odious.[5] Nevertheless, this was the father's evidence and, to the extent it came from father's own mouth in courtroom testimony, and for the reasons stated above, it has the ring of believability.
[43] Third, as I watched the videos, the camera was obviously moving around and taking recordings at a number of different angles. If someone was taking recordings surreptitiously, the likelihood is that the camera would be in a single discreet location, hidden from view, thereby making it more likely that the subjects would be shown from one angle only. Accordingly, it is more likely than not that the camera was not hidden from view and, therefore, easily observable by whoever was in the immediate vicinity.
[44] Fourth, the mother did not deny that she may have first found out about the videos in 2012 when they were disclosed to her previous lawyer. And yet, she stated in her evidence that she never made a complaint about those videos; nor did she ever even look at their contents. Had they been secretly recorded, had she been unaware of their contents, it is more likely that she would have wanted to watch the videos following their disclosure to her former counsel. However, because she never expressed the wish to view the recordings, it is more likely that she knew very well what the contents were; and this could only have been the case if she was not only present at the time the recordings were being made (which is not in dispute), but was also aware that the father was making the recordings.
[45] On balance, therefore, I conclude that the videos were not taken surreptitiously.
[46] Do the videos have probative value? The content of the videos does go to a fact in issue, namely, whether the child was frightened of her father.[6] Despite this, the court always has discretion to reject evidence where the probative value is outweighed by its prejudicial effect.[7] I do not find that to be the case insofar as this tendered evidence is concerned.
[47] And because there is no other legal basis for the exclusion of the recordings, I conclude that the videos should be admitted into evidence in this trial.
[48] However, I do wish to add the following. Had I found that the videos were taken surreptitiously, I would have declined to admit them into evidence. While the videos do disclose what could be characterized as having some probative value, that probative value does not, in my opinion, rise to the threshold level of a "compelling reason" for inclusion into evidence, when weighed against the policy considerations for refusing to admit into evidence recordings of family events taken surreptitiously, as discussed by Sherr J. in Hameed. Had I found that the recordings were in fact taken surreptitiously I would have expanded on my reasons for finding no "compelling reason"; but since this final paragraph in my reasons is strictly obiter to my decision, I do not find it necessary to expand any further.
[49] Order accordingly.
Justice Robert J. Spence October 6, 2014
Footnotes
[1] Or two other mothers
[2] As though encouraging the children to sing a song
[3] There was no evidence as to which of the two mothers was laughing.
[4] In an apparent complaining manner
[5] If perhaps not as odious or repugnant as a surreptitious recording
[6] I do not need to decide at this stage how much weight should be given to the videos. That is something which I will deal with at the conclusion of trial.
[7] See, for example, Anderson v. Angasuk, 2010 NWTSC 50