WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

486.6 (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.

COURT FILE NO.: 171/12
DATE: 20140122

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.W.

Defendant

L. Wannamaker, for the Crown

A. Herscovitch, for the Defendant

HEARD: January 21, 2014

PUBLICATION OF ANY INFORMATION IDENTIFYING THE COMPLAINANT

IS BANNED PURSUANT TO S.486.4

OF THE CRIMINAL CODE OF CANADA

McDERMOT, J.

[1] This is a prosecution involving an alleged sexual assault of the complainant in this case, C.H.. G.W. is 23 years old and is the complainant’s stepbrother. He is alleged to have committed the offences once when C.H. was between 10 and 11 years old and later on about five occasions when she was 13 years old. C.H. is presently 16 years of age. G.W. is also charged with threatening C.H. on at least one occasion with physical harm.

[2] The Crown brings a combined application under ss. 486.1, 486.2 and 715.1 of the Criminal Code. Ms. Wannamaker seeks an order that the complainant, C.H., testify by video link outside the courtroom as well as an order under s. 715.1 that C.H.’s testimony in chief be by way of her videotaped statement given on January 24, 2012 with the investigating officer, Detective Constable Tracy Katz.

Sections 486.1 and 486.2 Applications

[3] Regarding the applications under ss. 486.1 and 486.2, C.H. has stated that she does not need a support person present and that issue has been abandoned. Mr. Herscovitch advises that he has no objection to C.H. testifying from an adjacent room by videolink; however, he does wish to cross examine C.H. in the room that she is testifying from. Crown counsel objects and states that this would be both intimidating and inappropriate.

[4] As stated in R. v. C.D., [2013] O.J. No. 332 (S.C.J.), placement of witnesses, counsel and the accused are in the discretion of the trial judge which is to be determined in the interests of a fair trial [paragraph 9]. Section 486.1 of the Criminal Code recognizes that, for a young person who is testifying, it is in the interests of justice that the witness not be confronted by the presence of the accused. That issue goes to the comfort level or level of intimidation which may be suffered by the witness balanced off against the interests of a fair cross examination, a right afforded to the accused.

[5] In that case, the justice viewed the room in which the accused was to testify. It was a small room, and the judge ruled that “confronting three lawyers in black gowns in close proximity to her would be equally intimidating to the child as being required to testify in the presence of the accused.”

[6] In the present case, the room is the size of a small office. Crown and defence counsel would be sitting across the table from the accused. There are logistical issues for the court reporter to pick up any questioning from both the Crown counsel and defence counsel; I am advised that the room is only set up for one microphone and to maintain the record, the witness and counsel would have pass the microphone back and forth. I bear in mind as well that, in our system, cross examination of a witness is not usually done by counsel in close proximity to the witness unless that counsel is showing the witness a document or other exhibit; otherwise a witness almost always has the benefit of the distance between the counsel table and the witness box. There is no reason why C.H., who is 16 years of age, should be in turn cross examined by a lawyer who is sitting feet away from her.

[7] The witness shall testify by videolink from an adjacent room to the court room, and cross examination by Mr. Herscovitch shall take place from the court room.

Section 715.1 Application

[8] On January 24, 2012, soon after making a disclosure to a C.A.S. worker, C.H. was interviewed by Detective Constable Tracy Katz. That statement was videotaped and was shown to me in the course of hearing this application. A transcript was provided. In the statement, C.H. makes allegations of sexual touching, both when she was 10 years of age, and later on several occasions when she was 13 years of age. She also says in the statement that G.W. threatened to hurt her if she told her step mother about the incident.

[9] Ms. Wannamaker applies under s. 715.1 of the Criminal Code to have the complainant’s evidence in chief be by way of that videotaped statement. That section reads as follows:

715.1 (1) 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.

[10] For the purposes of this application, defence counsel concedes that the Crown has met the onus of all requirements of this section other than the issue of whether the the video recording was “made within a reasonable time after the alleged offence.” The record shows that the video recording was made sometime between 5 years and 3 ½ years from the date of the first alleged offence, which the complainant says took place when she was between 10 and 11. Both counsel acknowledge that, although the second set of offences may have taken place within the “reasonable time” constraint set out in the video recording, it would be impractical to redact or remove the portions of the video referring to the first offence and accordingly, if the video was not made within a reasonable time from the first offence, it cannot be used.

[11] This is a crown application and as such, the onus is on the crown to demonstrate that the video recording was made within a reasonable time of the alleged offence. The first issue raised is the evidentiary burden on the crown: does Ms. Wannamaker have to demonstrate the time that has elapsed between the offence and the statement beyond a reasonable doubt, or does she only have to demonstrate this on the balance of probabilities.

[12] The reason for this issue arises from the statements made by the Supreme Court of Canada in R. v. L.D.(O.), 1993 46 (SCC), [1993] 4 S.C.R. 419. That was an appeal partly of a trial judge’s ruling to allow a video recording to be used under s. 715.1. The trial judge, in making that ruling, said that the test was whether “the crown proved beyond a reasonable doubt that the videotape was made within a reasonable time after the alleged offence?” [emphasis mine].

[13] In considering the appeal of the issue of whether the video recording was made within a reasonable time after the offence, L’Heureux-Dubé J. stated that “the trial judge correctly directed himself in law”. Lamer C.J., speaking for the majority, agreed with L’Heureux-Dubé J. in her disposition of the non-constitutional issues in the case. The delay in that case between the offence and the statement was five months.

[14] In R. v. S.G., 2007 20779 (ON SC), [2007] O.J. No. 2203 (S.C.J.), N.J. Spies J. considered whether L.D.(O.) is, in fact, authority for the proposition that the crown’s onus is to prove beyond a reasonable doubt that the video recording was made within a reasonable time of the offence. She stated that, in her view, Justice L’Heureux-Dubé did not turn her mind to the question of burden as that issue was not before her. She noted that there would be little rationale to the Crown having to prove the issue of the timing of the offence beyond a reasonable doubt; indeed, she said, it would be an impossible burden. As such, she found that the burden on the Crown should be to prove the time that had elapsed between the video recording and the alleged offence on the balance of probabilities.

[15] I agree with this interpretation, both of the dicta in L.D.(O.) and the statute. I agree that the issue of exactly when the offence took place was not in issue in that case; it was undoubted that it took place five months before the statement was recorded. I also note that the section is designed to allow young persons who are vulnerable to give evidence in chief by way of video recording. This being the case, to prove the exact date of an offence is often difficult with regard to a child; we need only look at the present case to demonstrate that. As such, I agree with N.J. Spies J. that it proving the time elapsed beyond a reasonable doubt would be an unreasonable burden to place on the crown as had been suggested by Mr. Herscovitch.

[16] That being said, there was an issue as to when the first alleged offence was committed according to complainant. During her videotaped statement, the one that is sought to be entered, she said that she was 10 years old when the first offence occurred. That would place the offence about four years prior to the statement as she was 14 when she was interviewed by Detective Constable Katz. She said, however, that the incident occurred at a residence on W[…] Street in Peterborough when her sister was pregnant; her sister’s child was born December 22, 2008. C.H.’s stepmother, G.H., testified that C.H. moved in with her at an address on W[…] Street in March, 2008. That would appear to place the incident somewhere between March and December of 2008 (as these would be the months of the complainant’s sister’s pregnancy). It appears to me, and I find, on the balance of probabilities, that the offence occurred 3 ½ years prior to the statement.

[17] That being said, the issue then is whether that is within a reasonable time of the date of the video statement. There is no fixed time period of a “reasonable time” within the meaning of the section. As stated by L’Heureux-Dubé J., the reasonableness requires a case by case analysis. As pointed out by N.J. Spies J. in S.G., the most important factors in determining the reasonableness of the delay are the reasons for the delay and the impact of the delay on the child’s ability to accurately recall the the events in issue.

[18] Regarding the first issue, Crown counsel submits that there was good reason for the lack of disclosure over the lengthy period of time between the offence and the statement. She notes that there was a threat by the accused to hurt the complainant. As well, she was living with the accused mother, who was her stepmother; Ms. Wannamaker says that she would not have wanted to make a disclosure to her. Finally, as she stated to Officer Katz, this was simply not an issue she wished to speak of, considering her victimization by her other brothers as also disclosed in the video statement.

[19] I do not necessarily agree with Crown counsel that the first two issues are relevant to the first offence and the failure to disclose that issue. The threat to hurt the complainant came during the second set of incidents, which occurred in 2011 and not 2008. That threat was irrelevant to the first alleged offence in issue in this application. It is correct that G.H. was the accused’s mother and the complainant’s stepmother; however, based on the testimony of G.H. at the preliminary inquiry, in 2011 she was suspicious about the accused having molested C.H. and she specifically asked her about it. It was the decision of the complainant not to say anything at that time. It does not appear that she would have sided with the accused or permitted this type of activity, even if the accused were her natural son and the complainant her stepchild.

[20] Moreover, the memory of the complainant, even though she is an older child, appears to have been compromised at the time she gave the statement. She certainly has difficulty in placing that offence. She initially remembers that she was 10 at the time of the offence; later during the preliminary inquiry, she says that she was 12. There is a further difficulty at times during the statement when she appears to have mixed up the abuse suffered at the hands of the accused and her other brothers.

[21] More importantly, although there is no fixed time for being a “reasonable time” and the matter is to be dealt with on a case to case basis, Ms. Wannamaker was unable to provide any case where a “reasonable time” was found to be more than three years. In R. v. Taylor, [2011] O.J. No. 1346 (S.C.J.), N.J. Spies J. states that she understood that “the longest period of delay in the giving of a videotaped statement that had been endorsed by any court was three years.” She held a seven year delay to be unreasonable. In S.G., the same judge allowed a three year delay when the child was 10 at the time of the offence; however, that statement’s reliability was enhanced by the presence of a school social worker when the statement was made. In R. v. P.S., 2000 5706 (ON CA), [2000] O.J. No. 1374 (C.A.), a two year delay involving a child who was seven years old was described as being “long”; the videotape evidence was permitted, taking into account the fact that the child was “timid and fearful.” That does not appear to be so in the present case considering C.H.’s demeanor during the videotaped interview; this child witness at age 14 appeared to be comfortable and calm in giving her statement.

[22] I therefore find the delay between the first offence and the videotaped statement to be unreasonable. Accordingly, the Crown’s motion under s. 715.1 to substitute the complainant’s video evidence for her evidence in chief is dismissed.

McDERMOT J.

Released: January 22, 2014