Court File and Parties

Ontario Court of Justice

Date: 2015-10-30

Court File No.: Oshawa 14 21747

Between:

Her Majesty the Queen

— and —

Samit Dasgupta

Before: Justice M. T. Devlin

Heard on: October 1, 2015

Reasons for Judgment released on: October 30, 2015

Counsel:

• D. Parke, counsel for the Crown
• D. Balachandran, Counsel for the defendant Samit Dasgupta

Reasons for Judgment

DEVLIN J.:

[1] This is a ruling on a defence application to have portions of a witness' videotaped statement excised. The application is in relation to Samit Dasgupta who is charged with domestic assault. The charge stems from an incident which occurred on July 3rd, 2014. The crown's first witness will be the defendant's 13-year-old daughter Yashvi. The crown is proposing to have the daughter's videotaped statement to police entered into evidence pursuant to section 715.1 of the Criminal Code. The defence is opposed to some portions of the statement on the basis that some of it goes beyond "the acts complained of" requirement of section 715.1. The issue is whether portions of the videotaped statement should be excised or not. I turn now to the legal analysis.

[2] Section 715.1 of the Criminal Code states:

In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of the justice.

[3] Counsel referred me to three cases: R. v. D.S.F., [1999] O.J. No. 688; R. v. J.A.T., [2013] O.J. No. 4384 (S.C.J.); R. v. J.F.A., [1993] O.J. No. 1494 (Ont. C.A.). These cases support the following principles:

(1) References to other assaults not encompassed in the indictment cannot be introduced through a videotaped statement. However, this evidence may be admissible through oral evidence (see R. v. J.F.A., supra).

(2) Allegations of other assaults that are within the time frame of the charges before the court may be admissible through a videotaped statement (see R. v. J.A.T., supra).

(3) In cases involving allegations of physical and sexual abuse in the course of an ongoing relationship, courts have frequently admitted evidence of discreditable conduct to assist the court in understanding the relationship between the parties and the context in which the alleged abuse occurred.

[4] In the case before me, the daughter's videotaped statement is nine minutes long. I have watched it without the benefit of a transcript. The first half is very difficult to hear. Partway through, the officer has the daughter move closer to the microphone which dramatically improves the sound quality. At the beginning of the video, the daughter describes the incident which forms the basis of the charge before the court. The defence is seeking to excise the daughter's comments to the effect that this was not the first time her father has hit her mother and the last portion where she describes an assault on herself that occurred four years prior.

[5] Applying the case law to the facts of this case, I conclude that the preliminary comments about the relationship between the defendant and the complainant are admissible because they assist the court in understanding the relationship between these parties and give context to the events of July 3rd, 2014. I further conclude that the discussion of the assault which occurred four years prior involving the defendant and his daughter should be excised on the basis that this does not form the basis of any charge before the court and it is well outside the period covered by that charge.

[6] The defence application is, therefore, granted, in part.

Released: October 30, 2015

Signed: "Justice M. T. Devlin"