SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR15-0004

DATE: 2015-09-25

RE: R. v. Bernard Panamick

BEFORE: The Honourable Mr. Justice R. Del Frate

COUNSEL: Jeremy Schaffer Counsel, for the Crown

Brad Middleton, Counsel, for the Respondent

HEARD: September 22, 2015, in Gore Bay, Ontario

Ban of Publication pursuant to s. 486.4(a)(i) and s. 539 of the Criminal Code of Canada

ENDORSEMENT

[1] The Crown brings two applications. The first pursuant to s. 486(2) of the Criminal Code of Canada, permitting the complainants to testify by means of closed-circuit television technology. The second pursuant to s. 715.1 of the Code admitting into evidence the video recorded statements of the complainants if accepted by the complainants while testifying.

[2] In this case there are four complainants ranging in age from 9 to 11. The allegations deal with incidents that may have occurred between January 1, 2013, and March 1, 2014. The video statements were taken in March and April 2014.

Application re 486.2(1) CCC

[3] The Crown submits that the decision of R. v. Levogiannis, (1993) 1993 47 (SCC), 4 S.C.R 475, permits testimonial aides especially in cases dealing with children. This method prevents the accused from confronting the complainants personally.

[4] The defense fairly concedes that the Crown’s position is an accurate representation of the law. However, the defense wishes to ascertain that the procedure proposed by the Crown is functioning properly as not to have any undue delays once the trial commences.

[5] The request of the defense is reasonable and I order that counsel have a trial run, prior to the commencement of the trial.

Application re S 715.1 CCC

[6] The Crown contends that the facts of this case fall squarely into the reasoning of R. v. L. (D.O.), 1993 S.C.R 419 and R. v. C.C.F., (1997) 1997 306 (SCC), S.C.J No. 89.

[7] The Crown adds that asking the young complainants to recount what has happened is traumatic and not in the interest of justice. Accordingly, the videos taken by the investigating officers should be admitted.

[8] Again, the defense submits that the case law favours such a procedure. The defense however wishes to ascertain that the complainants understand their obligations to tell the truth. And further, the defense requires direction as to how to proceed under the circumstances.

[9] This consideration, involves interpreting s.16.1(1) of the Canada Evidence Act in dealing with persons under the age of 14. This section may be summarized as follows:

(1) There is a presumption that a person under the age of 14 has the capacity to testify.

(2) A person under 14 shall not take an oath or make a solemn affirmation.

(3) The evidence of the proposed witness shall be received if they are able to understand and respond to questions.

(4) If the capacity of the proposed witness is challenged, then the challenging party has the onus of providing that there is an issue as to the capacity of the proposed witness to understand and respond to questions.

(5) Should the court be satisfied that there is an issue on capacity, then the court will conduct and inquiry to determine whether the witness is able to understand and respond to the questions.

(6) The court shall require a person under the age of 14 to promise to tell the truth.

(7) That person shall not be asked any questions regarding the understanding of the nature of the promise to tell the truth.

(8) If the evidence is received by the court, then such evidence will have the same effect as if taken under oath.

[10] In summary therefore, a person under the age of 14 is presumed to have the capacity. Should there be a challenge, then a hearing may be held to determine that witness’ capacity. Prior to the witness testifying, the witness must promise to tell the truth. However, no questioning is permitted on whether the witness understands the nature of the promise. If the evidence is received, then that evidence shall have the same effect as if it were taken under oath.

[11] Accordingly, I intend to proceed in this fashion.

[12] Order to issue as per reasons.

The Honourable Mr. Justice Robert G.S. Del Frate

Date: September 25, 2015