Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2024 06 03 COURT FILE No.: 20-2188 Windsor, Ontario
BETWEEN:
HIS MAJESTY THE KING
— AND —
A.T. and S.T.
REASONS ON SECTION 715.1 APPLICATION
Before: Justice Shannon L. Pollock
Heard on: April 25, 2024, and April 30, 2024 Reasons for Judgment Released on: June 3, 2024
Counsel: Nicole Lamphier, for the Crown A.T., Self-Represented S.T., Self-Represented Linda McCurdy, 486.3 Counsel for A.T. Leah Gensey, 486.3 Counsel for S.T.
Pollock J.:
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(2.1) of the Criminal Code. These subsections 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(2.1), read as follows:
486.4 (2.1) Victim under 18 — Other offences — Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) Mandatory order on application — In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
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.
Introduction
[1] This is my ruling on a section 715.1 application brought on behalf of the defendant, A.T., to admit the videotaped statement of the child named in count four (4), as her evidence on this trial which involves allegations of assault as against her and two (2) of her siblings. The Crown opposes the application taking the position that the pre-requisite that the child “describe the acts complained of” has not been met in the circumstances. The Crown submits that, while a different application may be appropriate, the application under section 715.1 should not be granted in the circumstances.
[2] This child is the child of both defendants. She was four (4) years old at the time of the allegation and seven (7) years old at the time of trial. She provided a videotaped statement to the police approximately two (2) weeks after the date of the allegation. She was not called by the Crown as a witness on the trial. The assault alleged to have been committed against her by the defendant, A.T., was testified to by another one of the children who stated that they saw the assault. The allegation is that the mother grabbed the child by the hair and pulled her up the stairs by the hair.
[3] During the taking of a video statement by police two (2) weeks after the alleged assault, the then four (4) year old child was asked by the officer if anyone has ever pulled her hair and she responded by shaking her head in the negative. There is another portion earlier in the statement where the child is asked whether her mommy ever hit her and she responds “no”.
[4] The child was called on the trial by the defence for A.T. and a voir dire pursuant to section 715.1 was commenced. During the voir dire, the child watched her video statement and recognized herself. She testified that she was telling the truth. She offered further explanation about a portion of the video statement unrelated to the application.
[5] The Crown takes the view that the child’s shaking of her head “no” in response to the officer’s direct question about whether anyone has ever pulled her hair is not “describing the acts complained of” as is required by section 715.1. The Crown submits that this question and non-verbal answer do not speak of who did an “act” (referencing the language in the section) and does not describe the details. The Crown submits that this is not a description. The Crown further submits that the question was put to her right after the child was being asked about brushing her hair and that it is not clear what the child is answering.
[6] What makes this situation unique is that this application is being brought by one of the defendants. While these applications are very common when sought by the prosecution, none of the parties were able to direct me to any case law where the application had been brought by the defence.
[7] The defence takes the view that section 715.1 does not require an affirmative description of the act complained of and that it would be contrary to the interests of justice if section 715.1 could only be used if a witness provides a positive description or one that is only consistent with guilt. The defence points out that one of the purposes of section 715.1 includes having the best evidence before the court and a record of the best recollection of the witness.
[8] In R. v. F. (C.C.), the Supreme Court of Canada stated that: “The interpretation of legislation will always be facilitated by a consideration of its aim or goal. In the case of R. v. L. (D.O.), (citation omitted) the constitutional validity of s. 715.1 was considered. The section was unanimously held to be constitutionally valid. Chief Justice Lamer, writing for six members of the Court, made this comment upon the aim and purpose of the section at p. 429: By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and the discovery of truth.”: R. v. F. (C.C.) at paragraph 18.
[9] In a 2014 decision, Justice Fitch of the Supreme Court of British Columbia clearly summarized the law as follows:
[43] Section 715.1 was enacted in 1988 to address the realities of child abuse and to accommodate the needs of child witnesses. The provision was designed to address these problems by seeking to "preserve an early account of the child's complaint" in order to "assist in the discovery of the truth" and to provide a more effective "procedure for the introduction of the child's story into evidence at trial": R. v. L.O.D., [1993] 3 S.C.R. 569 at para. 34.
[44] More specifically, the twofold purpose of the provision is to: (1) enhance the ability of the court to discover the truth by preserving what is likely the child's most accurate and best recollection of the alleged event; and (2) to prevent or substantially reduce the likelihood of inflicting further injury upon the child witness as a result of their participation in the court proceedings: R. v. F.(C.C.), [1997] 3 S.C.R. 1183 at paras. 18–24.
[10] There is nothing in the section which suggests that applications can only be brought by the prosecution. In fact, the section specifically references being brought in relation to a victim or a witness.
[11] I disagree with the Crown’s submission that the prerequisite of describing the act complained of has not been met. The act complained of involves an allegation of pulling of the child’s hair. The child was directly asked about that act when she was asked by the officer if anyone has ever pulled her hair. The child gave a non-verbal response which is very clearly a shaking of her head in the negative. While not an ideal description, it is still a description. While the child’s statement is one that appears inconsistent with the Crown’s theory and with the evidence of another witness, that does not mean that it is not a description of the child’s version of events at the time of the taking of the video statement. The description does not have to be detailed to satisfy the prerequisites of section 715.1.
[12] There will never be a great deal of detail described if the position of a victim or witness is that the act alleged did not occur. Accepting the position of the Crown would mean that the admission of a statement in which a victim or witness denies an allegation would never be allowed. That would be inconsistent with the aim of the section as discussed by the Supreme Court of Canada. What weight is given to the evidence is a different analysis than whether the evidence should be admitted or not.
[13] I conclude that the prerequisites to section 715.1 have been met. The Application is granted.
Released: June 3, 2024 Signed: Justice Shannon L. Pollock