COURT FILE NO.: P241/05
DATE: 20130917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.A.T.
C. Harper, for the Crown
J. Rosen, for J.A.T.
HEARD: Sept. 11, 2013
REASONS FOR RULING
M. Dambrot J.
[1] The accused, who I will refer to as J.T., is charged with ten counts of sexual assault and related offences in relation to four sisters. The four sisters accuse J.T., who was their mother’s common law partner, of sexually abusing them for nearly a decade.
[2] Pursuant to s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46, the Crown seeks to adduce into evidence video recordings in which two of the sisters, M.F. and N.F., described the acts complained of. J.T. concedes that the prerequisites of s. 715.1 have been met and the recordings are admissible, subject to the editing out of parts of them that do not fall within s. 715.1.
[3] Even when the prerequisites to admissibility under s. 715.1 are met, a recording is admissible only to the extent that it describes the act complained of, and that it does not violate any other rule of evidence. In this regard, I rely on the decision of Doherty J.A. in R. v. Toten (1993), 1993 3427 (ON CA), 14 O.R. (3d) 225 (C.A.). In this case, Mr. Rosen, counsel for J.T., has identified a number of passages in the recordings that he says overstep these bounds and must be edited. Mr. Rosen and Mr. Harper, for the Crown, were able to work together, make responsible concessions, and significantly narrow the list of passages that are in contention. I will consider what remains in dispute in these reasons.
[4] For the most part, counsel are divided on a matter of principle: the proper scope of the phrase “the act complained of” in s. 715.1. The issue is not entirely resolved by the case law.
The Principles
[5] Some light was shed on this issue in R. v. J.F.A. (1993), 1993 14667 (ON CA), 82 C.C.C. (3d) 295 (Ont. C.A.), another judgment of Doherty J.A. released concurrently with Toten. In that case, the appellant was charged in count 1 with touching his eight-year-old daughter for a sexual purpose on June 3, 1989, and in count 2 with inviting his daughter to touch him for a sexual purpose ten days later. At trial the Crown introduced in evidence a s. 715.1 recording of a statement made by the complainant. In the recording, the complainant was asked if she was sexually abused on occasions other than the two that were the subject matter of the indictment. She referred to eight other occasions which were not encompassed by the charges. With respect to this evidence, Doherty J.A. stated, at p. 299, “Her references to them were not part of the description of ‘the acts complained of’ and consequently were not admissible as part of the videotaped statement tendered pursuant to s. 715.1.”
[6] Less than six months after his decisions in Toten and J.F.A., Doherty J.A. further elaborated on the scope of the phrase “the act complained of” in R. v. Scott (1993), 1993 14677 (ON CA), 87 C.C.C. (3d) 327 (Ont. C.A.). He stated, at p. 340:
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. A. (J.F.) (1993), 1993 14667 (ON CA), 82 C.C.C. (3d) 295 at p. 299 64 O.A.C. 359, 20 W.C.B. (2d) 238 (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 N.L. 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.
[7] When Doherty J.A. said that “the acts complained of” included everything that happened from the time that the complainant “first met her assailant until he left her”, he was addressing a case where the complainant first met the accused on the day of the sexual assault, perhaps a few hours earlier. Doherty J.A. was not addressing a case where an accused was alleged in a single count in the indictment to have sexually assaulted the complainant numerous times over a period of years. That is the case before me.
[8] I am left to consider the proper interpretation of s. 715.1 in the context of an allegation of on-going sexual assaults over an extended period of time without any direct appellate guidance. To do so, I must apply the modern approach to statutory interpretation. I must read the words of s. 715.1 in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Criminal Code, particularly the object of the Act, and the intention of Parliament. Specifically, I must consider what is included in the words “the acts complained of” if, as Doherty J.A. put it, “the section is to serve its purpose”. He discussed that purpose in detail in Toten.
[9] At its core, the purpose of s. 715.1 is to ameliorate barriers to effective truth-finding. As Doherty J.A. stated in Toten, at p. 236, “One of the barriers to effective truth-finding posed by the established procedure stems from the specific difficulties which young complainants encounter in attempting to provide a full and accurate account of the relevant events while testifying before the trier of fact.” Later, at p. 239, he explained, “The purpose of s. 715.1 is therefore to assist the trier of fact in obtaining a full and candid account of the acts complained of by the complainant.”
[10] This purpose explains why in Scott Doherty J.A. was prepared to include in the recitation of “the acts complained of” everything that happened from the time the complainant first met her assailant until he left her. A full and accurate account of the relevant events necessarily includes a recitation of how an assailant came to take control of the complainant and effect his purpose, in particular the actions that enabled the assailant to cause the complainant to acquiesce.
[11] In order for s. 715.1 to fulfil its purpose of assisting the trier of fact in obtaining a full and candid account of the relevant events in this case, the things said and done by the accused during, and even before, the period of the charge, other than uncharged sexual assaults, must be included. Needless to say, this risks opening the door too wide. In a case such as this one, the court must be vigilant to edit out that which is not necessary to fulfil the purpose of the section, and that which has a prejudicial effect that outweighs its probative value. But these are not tasks that are outside the ordinary judicial experience.
[12] I turn then to the dispute in this case.
Analysis
The statement of M.F.
[13] Counsel for the accused proposed a number of edits to the statement of M.F. After the completion of argument, there remained only one contested edit.
(i) Pages 10-16
[14] This part of the statement begins with the questioner asking M.F. about her relationship with her “stepfather”. M.F. said that she didn’t like “it” because she was treated like a servant, and explained what she meant. She was then asked what he was like with her sisters. She gave an answer, and then returned to the discussion about herself. After briefly making reference to the accused’s relationship with her mother, she described J.T.’s manner of physically disciplining her. While it is not entirely clear, this part of the discussion appears to cover a period of time both prior to and during the period of the charges.
[15] In my view, the discussion of the treatment of M.F. by the accused leading up to and during the period of the charges forms a part of the act complained of. It falls within a period of time that is analogous to the permissible period referred to in Scott, it is highly relevant to a full account of the allegations made by M.F. against the accused, and for the most part, its probative value far outweighs any prejudicial effect. As a result, I decline to edit out this part of the statement as proposed by the defence, with the following exceptions.
[16] At the bottom of page 10 and the top of page 11, the impugned section of the statement begins with the following question and answer:
Q: The only thing I know is that your stepfather um touched you in a sexual manner. That’s all I know.
A: Mm-hm.
[17] This question appears to disclose that the questioner believes the allegation made by M.F., and is unnecessary to an understanding of what precedes it or what follows it. As a result, its prejudicial effect far outweighs its probative value. It must be edited out.
[18] In the middle of a question on page 12, the questioner asks, “Okay what was he like with your sister?” The discussion of this topic continues onto page 13, ending with the answer, “Actually, he would never ask. It was just me and my younger sister.” Clearly, this has nothing to do with the acts complained of by M.F., and instead has to do with the acts complained of by her sisters. I recognize that s. 715.1 applies to a witness who was under the age of 18 years at the time the offence is alleged to have been committed, as well as a victim. But in this instance, while the thrust of the question was about the accused’s treatment of M.F.’s sister, the discussion that followed dealt mostly with M.F.’s perceptions of her sister’s feelings about the accused. As a result, it is mostly either hearsay or opinion evidence, and must be edited out.
[19] Finally, on page 14, M.F. was asked, “What was he like with your mother?” This question and the answer that followed do not fall within the acts complained of and must be edited out.
The statement of N.F.
[20] Counsel for the accused also proposed a number of edits to the statement of N.F. After the completion of argument, there remained three contested edits.
(i) Pages 11-12
[21] This part of the statement relates to an account by N.F. of: (1) what the accused told her about a sexual request he made of U.F.; and (2) seeing the accused in possession of a video of U.F. having sex with her boyfriend. In addition, it includes an innocuous discussion of family pictures. None of this falls within the acts complained of by N.F. or U.F. It must be edited out in its entirety.
(ii) Pages 14-15
[22] This part of the statement, beginning with the question, “Does he ever punish you?” and ending with the answer, “ ’cause he still always go into our room, ’cause he thinks he’s the boss of everything” relates to an account of the accused hitting N.F. repeatedly after she caught him in one of her sisters’ rooms and said to him, “What are you doing there?” In my view, it falls within the acts complained of by N.F. for the same reason that most of pages 10-16 of M.F.’s statement fall within the acts complained of by M.F. This discussion of the treatment of N.F. by the accused leading up to and during the period of the charges falls within a period of time that is analogous to the permissible period referred to in Scott, is highly relevant to a full account of the allegations made by N.F. against the accused, and its probative value outweighs any prejudicial effect.
(iii) Page 16
[23] This part of the statement, beginning with the words, “Was ’cause one time, my sister …” and ending with, “That’s her middle name” concerns a description by N.F. of a fight between another of the sisters and the accused, in which the sister got much the better of it. I am unable to assess the relevance of this brief utterance to the act complained of by that sister. Although it might be something that influenced N.F.’s response to the sexual acts that she complains of, I do not think that violence against another person can fairly be said to form a part of the act complained of by N.F. It must be edited out.
DISPOSITION
[24] The recordings of the s. 715.1 statements of N.F. and M.F. must be edited in accordance with these reasons. I thank counsel for their fair and economical presentation of these issues.
M. Dambrot J.
Released: September 17, 2013
COURT FILE NO.: P241/05
DATE: 20130917
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
J.A.T.
REASONS FOR RULING
DAMBROT J.
RELEASED: September 17, 2013