WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — 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 victim of the right to make an application for the order; and

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

486.6 OFFENCE — (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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. M.J., 2021 ONCJ 74

DATE: 2021 01 11

COURT FILE No.: 19-55000207

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

M.J.

Before Justice Peter N. Fraser

Heard on January 5, 2021

Reasons for Judgment released on January 11, 2021

K. Lockhart......................................................................................... counsel for the Crown

C. Levien............................................................................... counsel for the defendant M.J.

D. Way…………………………………………………... counsel for the complainant S.Y.

Fraser J.:

[1] The Applicant, M.J., stands charged with sexual assault and sexual interference against S.Y., who is now 9 years old. S.Y. is the daughter of the Applicant’s girlfriend, N.E. This application concerns the admissibility, pursuant to section 278.92(2) of the Criminal Code, of a cell phone video which appears to show the complainant recanting the allegations against the Applicant. The video was recorded by her mother, N.E.

Procedural History

[2] The video was produced by the defence during the cross-examination of the complainant. Counsel for the Applicant had come into possession of the video shortly before the trial. The Crown took the position that the video was a record for the purpose of section 278.1 of Code, and that an application was required to determine its admissibility. The defence ultimately conceded this point and brought an application under section 278.93(1), seeking a hearing for that purpose.

[3] The defence initially sought to rely on the decision of R. v. Reddick, 2020 ONSC 7156, in which Akhtar J. found sections 278.92, 278.94(2) and 278.94(3) of the Code to be unconstitutional. I ruled that Reddick did not have the automatic effect of striking down the legislation for all other trial courts in Ontario, and that it would be open to the Crown to argue that the decision was “plainly wrong” and ought not to be followed: see R. v. Chan, 2020 ONCA 333 at paras. 31-41. I further ruled that in order to rely on Reddick the defence was required to serve and file a notice of constitutional question pursuant to section 109(2.2) of the Courts of Justice Act: see R. v. Bickford, 2020 ONSC 7510.

[4] The defence declined to challenge the constitutionality of the provisions and chose to proceed with the hearing under section 278.94. Absent a Charter challenge to the constitutionality of the provisions, I have no jurisdiction to grant a Charter remedy. The parties agreed that the provisions enacted by Bill-C51 apply to this case, and this application has proceeded accordingly.

[5] The threshold question of whether to order a hearing was considered on December 10, 2020. The Crown acknowledged, correctly in my view, that the proposed evidence was capable of being admissible under section 276(2) of the Code and that a hearing should be conducted. As a result, I granted the application for a hearing under section 278.94.

[6] The hearing proceeded before me on January 5, 2021 with the public excluded, as proscribed by the Code. The complainant exercised her right to be represented by counsel at the hearing and Ms. Way appeared on her behalf.

Evidence and Positions of the Parties

[7] The Applicant takes the position that the proposed evidence is necessary in order for him to make full answer and defence and that it meets the test for admissibility under section 278.92 of the Code. The Crown opposes the application and asserts that the recantation captured on the cell phone video was the product of coercion. That being the case, the crown contends, the probative value of the evidence is trifling and the video ought to be excluded. Counsel for the complainant adopts the position of the Crown.

[8] By way of background, the complainant provided a videotaped statement to police on November 7, 2018, which was admitted into evidence on the trial proper pursuant to section 715.1 of the Code. In it, she described an event wherein the Applicant entered her room and touched her vagina. The cell phone video which forms the subject matter of this application was recorded on March 30, 2019. In this video the complainant is visible in a bedroom inside her home where she is questioned by her mother about the sexual touching.

[9] The video begins mid-conversation, leaving some ambiguity about how the interaction began. However, S.Y. is asked repeatedly over the course of the four-minute video whether she lied or told the truth, and she repeatedly answers that she lied. It is clear from the conversation as a whole that the subject matter is the allegation of sexual touching by the Applicant. At one point, S.Y. is asked directly if the Applicant touched her and she shakes her head no. When asked if someone told her to lie, she answers that her father did. When asked at another point why she lied, she explains that she did not want the Applicant around and only wanted her mother and father. She expressed a desire to live with both of them.

The Test for Admission

[10] According to section 278.92(2), a record relating to the complainant is inadmissible unless the judge determines that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. In making this determination, the judge is required to take into account the factors set out in section 278.92(3).

[11] The judge is required to give reasons for the decision and, more specifically, to state the factors referred to in subsection 278.92(3) that affected the determination. I would identify the following factors from that section as having affected the determination of this application:

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society’s interest in encouraging the reporting of sexual assault offences;

(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(g) the potential prejudice to the complainant’s personal dignity and right of privacy;

(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law

Application to the Case

[12] The videotaped recantation is relevant to the core issues in the trial: the credibility of the complainant and the question of whether the alleged criminal acts occurred. On its face, the video represents a complete repudiation of the allegations by the complainant, together with her reasons for falsely implicating the Applicant. No issue is taken with the reliability of the recording itself or the fact that the utterances were made. The video and audio quality of the recording are good and there is no suggestion the video has been altered or compromised in any way. The probative value of this evidence is, potentially, exceedingly high.

[13] The Crown urges me to find that the recantation was coerced. According to the Crown, this is apparent from the video itself, from the mother’s hostility toward the prosecution, and from the alleged history of abuse against S.Y. by her mother.

[14] The complainant’s original statement to police does refer to acts of abuse by her mother. And N.E. acknowledged during cross-examination on this application that she hit the complainant with a coat hanger, leading to the involvement of the Children’s Aid Society. I accept that there is evidence of abuse, and of N.E.’s hostility toward the prosecution as well, which causes me to approach the recantation with great caution. However, these factors do not lead inexorably to a finding that the utterances were a product of coercion. Nor does the content of the video itself establish that proposition. I observed no acts of hostility on the recording, nor do I find the overall tone of the conversation to be aggressive. The questions posed by the mother are pointed, but they are not leading and do not suggest the answers to S.Y. that she ultimately goes on to provide.

[15] The evidence before me on this application falls far short of demonstrating the recantation was coerced. In my view, coercion is merely one possible explanation for this video. Another possibility is that it captures a true recantation from an allegation falsely made.

[16] My task here is not to determine the ultimate reliability of the evidence, but to decide its admissibility. It remains to be seen whether the complainant will adopt the recantation or reject it as untrue, out of context, or otherwise misleading. She may have some explanation for it. The Crown’s theory of coercion may yet be established and it may not. In my view, it would be premature to make a conclusive finding at this stage of the proceedings, without having heard all of the relevant evidence about the video; most prominently the testimony of the complainant herself. I would not find the recantation was coerced on the record before me.

[17] Counsel for the complainant drew my attention to the fact that S.Y., who observes the Muslim faith, appears in the video without her hijab. I have no direct evidence about her feelings on this point, but I do note that S.Y. was wearing a hijab when she began to testify before me. It is likely that she would not wish to be seen in public without it. This fact informs my assessment of the factor enumerated in section 278.92(3)(g): the potential prejudice to the complainant’s personal dignity and right of privacy. While this factor weighs heavily, it does not alone or in conjunction with any others justify the exclusion of the evidence.

Conclusion

[18] In my view the video has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. A just and fair determination of the issues in this trial requires that this evidence be put to the complainant in cross-examination and that its significance be evaluated in the context of all the evidence at trial. To proceed otherwise would leave open the very real possibility of a miscarriage of justice.

[19] The Application is granted. The defence will be permitted to cross-examine the complainant on the cell phone video.

Released: January 11, 2021

Signed: Justice Peter N. Fraser