ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-30325
DATE: 2012/09/19

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – TOBY LITTLE OTTER LAND Respondent

David Elhadad and Carl Lem, for the Applicant
Anne London Weinstein and Neil Weinstein, for the Respondent

HEARD: June 27-28, 2012

PRE-TRIAL RULING #3 REGARDING STATEMENTS under s. 715.1 and s. 715.2

AITKEN j.

Nature of the Application

[ 1 ] The Crown seeks an order under s. 715.1 of the Criminal Code , R.S.C. 1985, c. C-46 [ Code ], that the video recordings of J.G-M.’s two interviews with Detective Francine Taillefer be admitted during her evidence-in-chief.

[ 2 ] The Crown also seeks an order under s. 715.2 of the Code that the video recordings of the interviews Detective Taillefer conducted with Thérèse Germain and Kim Haines be admitted during their evidence-in-chief.

Legislative Framework and Defence Positions

[ 3 ] Section 715.1(1) of the Code provides:

In any proceeding against an accused in which a ... 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 ... witness describes the acts complained of, is admissible in evidence if the ... 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.

[ 4 ] J.G-M. was 15 years old when Dominic Doyon was killed. Her interviews with Detective Taillefer occurred on May 5 and 7, 2009, within a reasonable time after Mr. Doyon was killed on the night of May 4-5, 2009. Therefore, in regard to the applicability of this section to the video recording of Ms. G-M.’s statements, the two questions that have to be asked are: (1) whether Ms. G-M. describes “the acts complained of” in her statements; and (2) whether the admission of the video statements would interfere with the proper administration of justice. The Defence takes the position that Ms. G-M. does not describe the acts complained of in her statement, and that the leading nature of the questions posed to her during her interviews would make the admission of her statements highly prejudicial to the Accused.

[ 5 ] Section 715.2(1) of the Code provides:

In a proceeding against an accused in which a ... witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the ... witness describes the acts complained of, is admissible in evidence if the ... 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.

[ 6 ] Kim Haines provided her statement to the police on May 5, 2009, and Thérèse Germain provided her statement to the police on May 9, 2009. Thus, both video statements were made within a reasonable time after Mr. Doyon was killed.

[ 7 ] Some evidence was tendered on the voir dire to the effect that both Ms. Germain and Ms. Haines suffer from some mental disabilities. The questions to be considered under s. 715.2(1) of the Code are: (1) whether, by reason of that mental disability, the witness would have difficulty communicating her evidence; (2) whether the witness describes “the acts complained of” in her statement; and (3) whether the admission of the witness’s video statement would interfere with the proper administration of justice.

[ 8 ] First, the Defence takes the position that the Crown has not established that either Ms. Germain or Ms. Haines would be unable to communicate her evidence as a result of a mental disability. Second, the Defence reiterates that neither witness can provide any evidence relating to “the acts complained of” because neither was present when Mr. Doyon was killed. Third, as a result of the leading nature of the questions put to both witnesses by Detective Taillefer, the Defence argues that an injustice would be done if their statements were admitted in evidence.

Analysis

J.G-M.

The acts complained of

[ 9 ] The videotaped statement Ms. G-M. gave to Detective Taillefer on May 5, 2009 can be summarized as follows. Ms. G-M. went to Mr. Doyon’s apartment the day of the killing. At approximately noon, she, Mr. Doyon, and Carl St. Cyr went for a walk. They returned to the apartment at approximately 2 p.m. and watched movies. Mr. St. Cyr then went into his bedroom and Ms. G-M. and Mr. Doyon continued to watch television. At approximately 4:30 p.m., Toby Land and Thérèse Germain arrived at the apartment. Ms. Germain watched television with Ms. G-M. and Mr. Doyon, while Mr. Land joined Mr. St. Cyr in the bedroom. That afternoon, Mr. Doyon, Ms. G-M., Ms. Germain, and Mr. St. Cyr smoked marijuana. At about 6:30 p.m., Ms. G-M. and Ms. Germain left the apartment. At that time, Mr. Doyon was in a deep sleep in the living room. As the women were walking away from the apartment building, Ms. G-M. turned around and saw Mr. Land outside, giving her a look. He then went back into the building. Ms. G-M. did not know what happened after that, as she went back to Kim Haines’ place.

[ 10 ] Ms. G-M. characterized her relationship with Mr. Doyon as a dating relationship. She stated that Mr. Land, Mr. Doyon’s roommate, did not like that because Ms. G-M. was only 15 years old. She described an incident that had occurred several weeks earlier when she had observed Mr. Land put a knife to Mr. Doyon and say: “If you date a 15 year old again, I’m gonna kill you.” Mr. Doyon had pushed Mr. Land “off against the wall” and had told him that he dare not “put up a knife at him” again. Ms. G-M. went on to discuss hearsay statements of Mr. Doyon, to the effect that he had kicked Mr. Land out of the apartment because of the way he was acting. Nevertheless, Mr. Land continued to go to the apartment almost every night to see Mr. St. Cyr, with whom he was “pretty close”.

[ 11 ] In her videotaped statement of May 7, 2009, Ms. G-M. clarified that she had been at Mr. Doyon’s apartment all but approximately 10 days in the previous two months and had slept over on approximately 10 occasions. Mr. Land came over to the apartment frequently to see Mr. St. Cyr. Usually he would arrive after work at about 4 p.m. On the nights that Ms. G-M. was sleeping over, Mr. Land was also sleeping at the apartment. He would leave early in the morning to go to work. In mid to late March, Mr. Land learned that Ms. G-M. was only 14 years old. He told Mr. Doyon that he should not have 14 year olds hanging around the apartment. On approximately five occasions, Mr. Land said to Mr. Doyon that if he dated a 14 year old, he would kill him.

[ 12 ] Ms. G-M. reviewed, in greater detail, what had happened the day she witnessed Mr. Land threaten Mr. Doyon with a knife. She also went over what happened prior to her leaving the apartment on the day Mr. Doyon was killed. Ms. G-M. said that both Mr. Land and Mr. St. Cyr had tried to persuade her to sleep at the apartment that night. She provided a detailed description of the apartment and its contents, including a sword.

[ 13 ] Crown counsel argued that the portions in Ms. G-M.’s videotaped statements dealing with the earlier knife incident and with the statements allegedly made by Mr. Land, prior to the night of Mr. Doyon’s death, to the effect that he would kill Mr. Doyon if Mr. Doyon continued to date 14 year olds, are statements relating to the “acts complained of” in the indictment because they are evidence going to Mr. Land’s mens rea when he caused Mr. Doyon’s death. I reject this argument for several reasons.

[ 14 ] First, Crown counsel invited the Court to compare the English and French versions of s. 715.1 of the Code . The term, “the acts complained of”, in the French version appears as, “les faits à l’origine de l’accusation”. Crown counsel urged me to conclude that the French version is expressed broadly enough to encompass the mens rea of the alleged crime – and not simply the actus reus , and the English version should be interpreted in the same vein. What escaped Crown counsel was the need to tender evidence as to the meaning to be attributed to the French phrase for the purpose of statutory interpretation. It was not enough for him to provide his personal opinion as to the meaning of the phrase in the French version.

[ 15 ] Second, and in any event, the interpretation urged on me by Crown counsel is inconsistent with jurisprudence from the Ontario Court of Appeal dealing with the meaning of “the acts complained of” in s. 715.1 of the Code . Though no case is directly on point, the following excerpts from such cases help to establish the parameters of what is included in this phrase.

[ 16 ] In R. v. Toten (1993), 1993 3427 (ON CA) , 14 O.R. (3d) 225, 83 C.C.C. (3d) 5 (C.A.), Doherty J.A. undertook a full analysis of the interpretation, constitutionality, and application of s. 715.1 of the Code . When considering the meaning of “the acts complained of”, Doherty J.A. cautioned, at para. 55:

Even where the videotaped statement is adopted by the complainant, it is admissible only to the extent that it “describes the act complained of”. References to other acts not encompassed by the indictment, or to conversations which do not form part of the “acts complained of” are not admissible. Care must be taken, when making the videotape, to ensure that this limitation is honoured. The inclusion of questions that elicit information which may have investigative or therapeutic value but which does not “describe the acts complained of” may, if effective and fair editing is not possible, necessitate the exclusion of the entire statement.

[ 17 ] These same principles were reiterated almost 20 years later in R. v. J.A.T. , 2012 ONCA 177 , 290 O.A.C. 130, where the Court of Appeal, in determining that the part of a videotaped statement that referred to computer incidents after the alleged offences had occurred should have been edited before the statement was admitted under s. 715.1(1) of the Code , stated at paras. 147 and 159:

Section 715.1 permits introduction of evidence to the extent that the witness or complainant “describes the acts complained of”. References to other conduct not encompassed by the indictment or to conversations that form no part of “the acts complained of” are not rendered admissible by s. 715.1: Toten , at p. 248; and F. (C.C.) , at para. 54.

Section 715.1 of the Criminal Code does not permit the introduction of everything contained on the videotape into evidence. The provision permits introduction of the complainant’s description of “the acts complained of”: Toten , at p. 248. The computer incident to which the complainant referred on the videotape was not any of “the acts complained of”. Rather, it occurred after the appellant had left the complainants’ home. The description of the incident was offered as evidence of post-offence conduct, essentially a thinly-veiled attempt to dissuade M.F. from reporting abuse. The adoption of the videotape that s. 715.1(1) requires does not expand its contents or the admissibility of its contents beyond an account of “the acts complained of”.

[ 18 ] In R. v. J.F.A. (1993), 1993 14667 (ON CA) , 64 O.A.C. 359, 82 C.C.C. (3d) 295 (C.A.), the Court of Appeal ordered a new trial where a young complainant’s videotaped statement was admitted in its entirety under s. 715.1 of the Code , in circumstances where the statement contained references to eight sexual assaults, in addition to the two incidents underlying the two counts in the indictment. This case is authority to exclude any reference in Ms. G-M.’s videotaped statements to the incident that she said she observed in March 2009, when Mr. Land allegedly threatened Mr. Doyon with a knife. Mr. Land has never been charged with this offence, and it is not referenced in the indictment, which is the subject of these proceedings.

[ 19 ] In R. v. Scott (1993), 1993 14677 (ON CA) , 67 O.A.C. 213, 87 C.C.C. (3d) 327 (C.A.), the Court of Appeal concluded that portions of a complainant’s statement relating to the physical appearance of the man accused of sexually assaulting her, along with her description of the physical acts of the assault, were admissible under s. 715.1 of the Code . The court stated at paras. 51-52:

The contents of a videotaped statement tendered under s. 715.1 must be limited to a description of “the acts complained of”: R. v. Toten , supra, at pp. 28-29; R. v. J.F.A. (1993), 1993 14667 (ON CA) , 82 C.C.C. (3d) 295 at 299 (Ont. C.A.). A description of the acts complained of must, however, include more than the bare physical acts constituting the assault. If the section is to serve its purpose, the young complainant must be allowed to give his or her version of the events underlying the charge before the court. In a case like this one, those events included everything that happened from the time [the complainant] first met her assailant until he left her and she started for home. A recitation of “the acts complained of” can also include the complainant’s description of his or her attacker’s physical features, or the complainant’s naming of the attacker if the complainant knows that person: R. v. Meddoui, supra, at p. 360.

In my view, statements made by the attacker during the events underlying the charge before the court are also part of “the acts complained of”, and fall within the ambit of s. 715.1. While [the complainant] did not specifically say when the attacker told her he was blind in one eye, it had to be at some point during the relevant events of [the day when the assault occurred] since [the complainant] had no other contact with that person.

[ 20 ] I interpret the Scott case as signalling that statements that may have been made by the accused to a witness, prior to the events that form the subject matter of the charges in the indictment, fall outside the category of “acts complained of” in the indictment.

[ 21 ] This jurisprudence leads me to conclude that neither Ms. G-M.’s description of the earlier knife incident, nor her recounting of threats made by Mr. Land to Mr. Doyon, prior to the night in question, can be considered part of the “acts complained of” in the indictment.

[ 22 ] Although I am not inclined to see it in this light, there may be some argument as to whether any other portion of Ms. G-M.’s statements fall under the heading of “acts complained of”, such as her observation that when she left the apartment at approximately 6:30 p.m. on the evening of May 4, 2009, Mr. Land was at the apartment. This is not a fact in dispute. Mr. Land has advised that, at the commencement of the trial, he will be pleading guilty to manslaughter. He acknowledges that he was at the apartment that evening and that he caused Mr. Doyon’s death. As a matter of trial efficiency, there is no need to devote court time to overseeing a careful edit of Ms. G-M.’s statements to put a portion of them before the jury when the facts they would be tendered to prove are not in dispute.

The proper administration of justice

[ 23 ] As a result of my conclusion regarding the meaning of “acts complained of”, I need not go further and consider whether the admission of Ms. G-M.’s video statements would interfere with the proper administration of justice.

Thérèse Germain

The acts complained of

[ 24 ] The videotaped statement Ms. Germain gave to Detective Taillefer on May 9, 2009 can be summarized as follows. Ms. Germain went over to Mr. Doyon’s apartment at approximately 6 p.m. on May 4, 2009. Mr. Doyon was passed out on the couch. J.G-M. was sitting on the other couch. Ms. G-M. said that Mr. Doyon had already smoked a lot of marijuana, and he was not likely to wake up for awhile. Mr. Land and Mr. St. Cyr were in the bedroom with the door closed. Ms. Germain left the apartment with Ms. G-M. at approximately 6:20 or 6:30 p.m. Otherwise, Ms. Germain spoke of events that had occurred prior to May 4 – how both Mr. Land and Mr. St. Cyr were angry with Mr. Doyon for dating a 14 year old; how there had been an altercation between Mr. Land and Mr. Doyon on April 1, 2009, at which time Mr. Land had pulled a knife on Mr. Doyon and Mr. St. Cyr had intervened; and how Mr. St. Cyr had then stomped on Mr. Doyon’s head causing him injuries. Ms. Germain spoke of the friendship she had with Mr. Doyon. She described the apartment on the night of May 4.

[ 25 ] None of this evidence falls under the heading of “acts complained of” under s. 715.2(1) of the Code .

Mental disability

[ 26 ] As well, I cannot find that Ms. Germain would have difficulty communicating her evidence by reason of a mental disability. Ms. Germain was not called as a witness on this motion. In the Pre-trial Ruling #1 Regarding Viva Voce Evidence on KGB Application, I reviewed Ms. Germain’s vulnerabilities and how well she functioned at the Preliminary Inquiry, despite her challenges. I concluded that Ms. Germain could handle a further pre-trial court appearance in regard to a proposed KGB application, as long as she had a support person with her. Ms. Germain will have a support person with her when she testifies at trial. There is inadequate evidence that Ms. Germain will have difficulty communicating her evidence if, as would be normal, she is given the opportunity prior to trial to review her statement to Detective Taillefer. Ms. Germain functioned well – both during her interview with Detective Taillefer and during her testimony at the Preliminary Inquiry. Although the passage of further time may make certain aspects of her evidence more difficult to remember, it will be open to counsel to refresh her memory in the normal course. Otherwise, there is no reason to believe that, at trial, Ms. Germain would function any differently than she did during the Preliminary Inquiry.

The proper administration of justice

[ 27 ] Considering my findings on the other pre-requisites to the use of s. 715.2(1) of the Code , I need not go further and consider whether the admission of Ms. Germain’s videotaped statement would interfere with the proper administration of justice.

Kim Haines

The acts complained of

[ 28 ] The videotaped statement Ms. Haines gave to Detective Taillefer on May 5, 2009 can be summarized as follows. In April 2009, when she, Mr. Doyon, and Mr. Land had been at Mr. Doyon’s apartment, Mr. Land had threatened Mr. Doyon with a knife and Ms. Haines had taken the knife away from Mr. Land. Ms. G-M. was not at the apartment at that time. Ms. Haines described how she and Mr. Doyon used to date, but subsequently, they were just friends. She acknowledged that she and Ms. G-M. were together when both initially gave their statements to the police at the building where Mr. Doyon had been killed and that she had told Ms. G-M. about the knife incident prior to Ms. G-M. providing her statement to the police.

[ 29 ] Again, there is nothing in this statement which refers to the “acts complained of” as that phrase is used in s. 715.2(1) of the Code .

Mental disability

[ 30 ] Ms. Haines did not testify on this motion and, therefore, I have not had the benefit of observing her in the witness box. However, a review of her interview with Detective Taillefer, and her testimony at the Preliminary Inquiry, reveals that she does have difficulty remembering things and communicating effectively. Her inclination is to agree with virtually everything put to her – even if it contradicts something she might have said a few moments before. The Crown has satisfied this precondition to utilizing s. 715.2(1) of the Code .

The proper administration of justice

[ 31 ] As a result of my conclusion regarding the absence of reference in Ms. Haines’ video statement to any “acts complained of” in the indictment, I need not go further and consider whether the admission of Ms. Haines’ video statement would interfere with the proper administration of justice.

Disposition

[ 32 ] The Crown’s motion to have the videotaped statements of J.G-M. admitted into evidence under s. 715.1(1) of the Code is dismissed.

[ 33 ] The Crown’s motion to have the videotaped statements of Thérèse Germain and Kim Haines admitted into evidence under s. 715.2(1) of the Code is also dismissed.

Aitken J.

Released: September 19, 2012

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Applicant – and – TOBY LITTLE OTTER LAND Respondent pre-trial ruling #3 regarding STATEMENTS UNDER S. 715.1 and 715.2 Aitken J.

Released: September 19, 2012