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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 07 19 Court File No.: Hamilton 998 23 47101722

Between:

HIS MAJESTY THE KING (Applicant)

— AND —

J.H. (Respondent)

Before: Justice Davin M.K. Garg

Heard on: July 2 and 3, 2024 Ruling on Section 715.1 Application released on: July 19, 2024

Counsel: Morgan Ross....................................................................................... counsel for the Crown Geoffrey Read.................................................................... counsel for the respondent J.H.

GARG J.:

[1] Section 715.1(1) of the Criminal Code allows a court to admit a young complainant’s video-recorded statement into evidence. One precondition to admission is that the complainant must have made the statement within a reasonable time after the alleged offences. The complainant in this case made her statement at least five years after the alleged offences. She did not disclose any wrongdoing when she spoke to the police shortly after the alleged offences. Is five years too long when the complainant had a so-called “golden opportunity” to make an earlier statement that disclosed the alleged offences?

[2] After the hearing on this application, I informed the parties that I was granting the application to admit the statement with reasons to follow. The Crown has satisfied the preconditions to admission in s. 715.1(1) on a balance of probabilities. I find that the complainant made her statement within a reasonable time after the alleged offences. It was not necessary for the complainant to have made her statement at the first available opportunity. The record sufficiently explains the passage of time between the alleged offences and the statement.

Facts

[3] The complainant is the respondent’s biological daughter. The respondent is charged with committing four counts each of sexual assault and sexual interference against her between June 1 and September 10, 2017. The complainant disclosed some of the alleged offences for the first time during a deep conversation with her mother in early September 2022. She then described the allegations in a video-recorded statement to the police that she made on September 13, 2022.

[4] The complainant’s date of birth is [...], 2009. She was eight years old at the time of the alleged offences, 13 years old when she made her statement, and 15 years old when she testified at trial.

[5] The timeframe at issue runs from when the alleged offences are said to have ended until the date of the statement: R. v. A.I.Z., 2023 SKKB 76 at para. 13. The evidence on this application establishes that the offences allegedly occurred when the complainant was on summer break from school in 2017. The applicable timeframe is thus between five years, three days on the short end (using September 10 as the end point of the alleged offences) and a little more than five years, three months on the long end (using June 1 as the end point).

[6] The alleged offences ended no later than September 10, 2017, because there is no dispute that the next day, on September 11, the complainant’s mother caught the respondent masturbating between the complainant’s legs while she slept. [1] The ensuing uproar awoke the complainant, who eventually spoke to the police later that day. At that time, she denied that the respondent had ever touched her inappropriately. The defence described this interview as the “golden opportunity” for the complainant to have made a statement that disclosed the alleged offences.

Should the statement be admitted?

[7] The main issue is whether to admit the complainant’s statement under s. 715.1(1).

Legal framework

[8] Section 715.1(1) provides:

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 justice.

[9] To admit the complainant’s video-recorded statement, the Crown must prove four preconditions on a balance of probabilities:

(1) the complainant was under the age of eighteen “at the time the offence is alleged to have been committed”;

(2) the statement was made “within a reasonable time after the alleged offence”;

(3) the complainant describes the “acts complained of” in the statement; and

(4) while testifying, the complainant “adopts the contents” of the statement.

If these preconditions are met, I maintain the residual discretion to exclude the statement if its admission would interfere with the proper administration of justice.

[10] Only the second precondition is in dispute in this case. The complainant was well under the age of 18 at the material time. The statement relates to the “acts complained of” as contemplated by the charges before the court. And the complainant adopted the contents of the statement. She recalled making the statement and confirmed that she had been honest, truthful, and accurate.

[11] The “reasonable time” analysis has evolved over time. Courts in the past placed greater emphasis on the precise time between the alleged offences and the statement. This approach flowed from comments in R. v. P.S. at para. 75 suggesting that a two-year delay made for a “borderline case” to admit the statement. Almost twenty years later, the Ontario Court of Appeal clarified that those comments were limited to the facts of that decision. No amount of delay is “borderline” per se: R. v. P.S., 2019 ONCA 637 at para. 19. Every case demands a nuanced and case-specific analysis. “[I]t is of limited utility to only look to the number of days, weeks, months or years that have been found to be reasonable or unreasonable in other cases to determine whether the passage of time meets the reasonableness requirement under s. 715.1(1)”: R. v. P.S., 2019 ONCA 637 at para. 20.

[12] In analyzing whether the statement was made within a reasonable time, I must consider any reasons for the passage of time and examine its impact on the complainant’s ability to accurately recall the events: R. v. L. (D.O.), [1993] 4 S.C.R. 419, [1993] S.C.J. No. 72 at paras. 75, 77, 79.

Application

[13] The defence did not press an argument that the passage of time had impacted the complainant’s ability to sufficiently recall the alleged offences. Although the defence noted that the complainant was vague at points in her statement, the defence preferred to defer those arguments to any eventual litigation on the ultimate weight of the statement. At the admissibility stage, I find that the passage of time did not prevent the complainant from sufficiently recalling the alleged offences. Near the beginning of the statement, the interviewing officer allowed the complainant to provide a lengthy narrative in her own words without interruption. The officer then asked follow-up questions to flesh out the details. The complainant responded with sufficient clarity, notwithstanding that the officer refrained from being too suggestive in her questioning. Any memory loss from the passage of the time did not prevent the complainant from recounting core details.

[14] The defence principally argued that the complainant could and ought to have disclosed the alleged offences when she spoke to the police in September 2017. The record insufficiently explains why the complainant instead waited five years to make the statement. In view of the earlier opportunity, the statement made in September 2022 was not made within a reasonable time. I decline to give effect to this argument for two reasons.

[15] First, I cannot embrace the legal proposition underlying the argument. Even if I agreed that the interview in September 2017 afforded the complainant a “golden opportunity” to disclose the alleged offences, it would not determine the issue at hand. The issue is whether the statement was made within a reasonable time—not whether there was an earlier opportunity to make the statement. The earlier opportunity might be a relevant factor in the overall analysis. But it does not indicate that the passage of time was unreasonable. This is especially so when considering the broader context of a young complainant disclosing sexual abuse. The analysis must consider how “children will often delay disclosing abuse they have suffered, particularly when the abuse is sexual in nature and involves perpetrators who stand in positions of trust”: R. v. P.S., 2019 ONCA 637 at para. 21.

[16] Second, I find that the argument is not sustainable on the facts. When the complainant spoke to the police in September 2017, the circumstances were not ideal for her to accuse her father of serious sexual abuse. According to the evidence before me on this application, the complainant had been startled awake in the middle of the night when her mother slammed open the door. There was a lot of yelling. Police officers arrived at her house. She was taken to the hospital. She was wearing a nightgown and no underwear. At the hospital she was required to urinate in a cup. After what must have been a long night, the complainant then spoke to the police later that day. [2] It was her first interaction with the police. The complainant agreed that she promised to tell the truth and that the interviewer was polite. Nevertheless, these chaotic circumstances would not have provided an ideal opportunity for anyone—much less an eight-year-old child—to expose themselves further by delving into the abuse that they had allegedly endured.

[17] It would be premature to assess the credibility or reliability of the complainant’s explanations for the non-disclosure in September 2017. I expect that these will be live issues on the trial proper. Suffice it to say at this stage that the evidence provides an explanation. The complainant explained that she did not disclose the alleged offences at that time because she was scared and feared that she might be taken away by child services if she said the wrong thing. She was feeling shy, confused, and did not want to talk to anyone.

[18] I am satisfied on the record before me that the passage of time is reasonable between the alleged offences and the eventual statement. Using some of the factors outlined in R. v. B.D., Ont. Sup. Ct. J., Central South Region, No. SCA-22-101557, January 23, 2024 (unreported) at para. 47, citing R. v. A.I.Z., 2023 SKKB 76 at para. 12:

• The complainant was only eight years old during the alleged offences and when she spoke to the police in September 2017. She was still only 13 when she made her statement in September 2022.
• It is understandable that a young child would need time to process the alleged events. The complainant already knew—even when she was eight—that the respondent’s alleged conduct was wrong. She knew that it would have been a “bad touch” for the respondent to touch her private parts. But I can appreciate how the extent of the wrongfulness became clearer through time as she developed and learned more about proper relationships: see e.g., R. v. B.D., Ont. Ct. J., Kitchener, No. 21-Y101, April 19, 2022 (unreported) at para. 20, aff’d No. SCA-22-101557 (unreported). The complainant’s testimony reveals how she was processing incongruent thoughts during this timeframe. She characterized the respondent’s alleged conduct as follows: “I didn’t think that it was normal, but I also didn’t think it was out of the ordinary”.
• The complainant’s mother was a potential outlet for the complainant to disclose the alleged offences. The complainant enjoyed a good relationship with her. But the availability of her mother does not derogate from the time that the complainant needed to process the alleged offences. Furthermore, the respondent is said to have explicitly told the complainant not to tell her mother about the alleged offences.
• The complainant is the respondent’s daughter. The dynamics of a father-daughter relationship are relevant to the delay in disclosure: R. v. P.S., 2019 ONCA 637 at para. 21. Even though the respondent seemed to become a more limited figure in the complainant’s life after September 2017, I accept that the prospect of his eventual return would have continued to hold some sway over her.
• At this stage of the analysis, I do not see any intervening events that could have affected the reliability of the statement. The complainant denied knowing about family law proceedings or the respondent’s desire to co-parent prior to making the statement in September 2022. At its highest, the complainant had been asking her mother whether she would need to see the respondent again.

[19] I note in passing that the timeframe in B.D. between the alleged offences and the statement was akin to this case. But I put little weight on this factor given the limited utility of examining other cases only to see if a certain length of time was deemed reasonable or unreasonable: R. v. P.S., 2019 ONCA 637 at para. 20. [3]

Should the statement be edited?

[20] After granting the application to admit the statement for the truth of its contents, I acceded to the alternative defence position to redact a discrete portion of it. In this portion, the officer read out loud a letter that the complainant had written to herself that described the alleged offences, among other topics. I redacted this portion of the statement for two reasons. First, the complainant did not explicitly adopt the contents of the letter during her statement. I find that implicit adoption is insufficient when s. 715.1(1) already allows a witness to incorporate an out-of-court oral statement into their evidence. Second, the impugned portion briefly referenced prior discreditable conduct on the part of the respondent that was not accompanied by an application for admission.

Conclusion

[21] The complainant’s video-recorded statement dated September 13, 2022, was admitted into evidence under s. 715.1(1) of the Criminal Code. A redacted version of the transcript and an edited version of the video will be filed as exhibits in compliance with this ruling.

Released: July 19, 2024 Signed: Justice Davin M.K. Garg

[1] I previously allowed an application to admit this extrinsic conduct at trial: R. v. J.H., 2024 ONCJ 311. For present purposes, the extrinsic conduct explains the circumstances that led the complainant to speak to the police on September 11, 2017.

[2] While the evidence was not crystal clear on the sequence, I find that the complainant must have spoken to the police after going to the hospital. See also her statement at p. 18 (“… my mom walked me outside … I got into a, some sort of vehicle and got driven to the hospital”).

[3] It turned out in B.D. that the passage of time was much shorter than originally thought. However, the trial judge admitted the statement when she believed the passage of time to be 5.5 years.