R. v. K.S., 2016 ONSC 1403

CITATION: R. v. K.S., 2016 ONSC 1403

COURT FILE NO.: 13955/15

DATE: 20160226

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

K.S.

Defendant

Kerri-Ann Kennedy, for the Crown

David Parry, for the Defendant

HEARD: February 24, 2016

Madam Justice S.J. Woodley

ruling FOR AN ORDER UNDER section 715.1 (1) of the criminal code

There is an order banning publication of any information identifying the complainant in this proceeding.

Overview

1K.S. stands charged with sexual assault, sexual interference, invitation to sexual touching, and exposing his genitals in relation to the complainant, HR, sometime between November 20, 2009 and February 9, 2015 when HR was 5 years of age or younger.

2HR is a primary witness in these proceedings. HR was born on […], 2009. HR’s mother, CR, had been in a relationship with Mr. K.S. since 2011. CR and Mr. K.S. had a child together, AR, in 2013.

3CR, HR and AR lived together in an apartment. Mr. K.S. did not live with CR, HR, and AR, but would visit and sleep over on weekends. Mr. K.S.’ last weekend visit was the weekend of February 7 – 9, 2015.

4On the evening of February 10, 2015, HR disclosed alleged facts to her mother CR regarding Mr. K.S.. HR’s mother reported the alleged facts to the Durham Regional Police Service on February 10, 2015. Police interviewed HR and CR on video on February 11, 2015.

5The Crown seeks to introduce the video statement of HR at trial and seeks an order under section 715.1(1) of the Criminal Code.

The Issue

Does the videotaped statement of HR conform to section 715.1(1) of the Criminal Code?

Positions of the Crown and the Defense

6The Crown claims that provisions of section 715.1(1) of the Criminal Code are complied with in this case. The Crown advises that the complainant HR is expected to adopt the contents of the video recording at the trial just as she did at the preliminary inquiry.

7The Defense claims that the provisions of 715.1(1) of the Criminal Code have not been complied with and specifically that (a) the recoding was not made within a “reasonable time” after the offence; (b) the statement should otherwise be excluded on the basis of an out of court statement made by the complainant; (c) the complainant is now six years old and “unquestionably more mature now than she was nearly a year ago”; and (d) the prosecution has been allowed to use another method to facilitate the giving of the evidence by the complainant through the use of a CCTV room with a testimonial aid.

8As to the argument that the recording was not made within a “reasonable time” after the commitment of the offence, the Defense submits that there is no evidence when the alleged offence occurred and therefore no time to start a timeline to determine reasonableness. Further, the indictment itself covers the period of the complainant’s lifetime from her date of birth to February 9, 2015, two days prior to the date the statement was made. The Defense submits that no evidence has been provided to particularize the timing of the alleged offence, other than it is alleged to have occurred sometime between November 20, 2009and February 9, 2015. The Defense submits there is no timeline that would allow the court to determine the issue of reasonableness and as such the video statement must be excluded.

The Evidence

9At the hearing of the voir dire the Crown played the video statement made by HR to Detective Stephenson of the Durham Region Police Services on February 11, 2015.

10During submissions, the Crown and Defense agreed that the following further information was conceded for the purpose of the section 715.1(1) application:

a. HR was born on […], 2009 and made the video statement on February 11, 2015;

b. The relationship between HR’s mother, CR, and Mr. K.S. commenced in 2011 when HR was approximately two years old and continued on again and off again throughout;

c. From 2011 to 2012, HR and her mother CR lived at CR’s mother’s home (“Nana”);

d. In 2012, HR and CR moved into an apartment with Mr. K.S. for 1 ½ months;

e. In 2012, approximately 1 ½ months later, HR and CR returned to live with Nana;

f. During the period that HR and CR lived with Nana, Mr. K.S. would visit on weekends and spent time overnight;

g. In May of 2013, HR and CR moved to an apartment. Mr. K.S. did not live with them but visited on weekends;

h. On December 15, 2013, CR and Mr. K.S. had a child together, a boy, AR; and

i. Following AR’s birth, Mr. K.S. did not live with HR, CR, and AR, but continued to visit on weekends until the weekend of February 7 - 9, 2015.

11Upon my review of the application materials, I find the following additional evidence to be relevant in the determination of this application:

Timeline and Events

a. HR provided her video statement on February 11, 2015 (VD Exhibit 2). At that date HR knew that she was 5 years old but did not know the date of her birthday only that she would be 6 years old on her birthday (AR, Tab 3, p. 4, line 2);

b. HR stated that she lived with her mother, her baby brother AR and her cat. She stated that “nobody else” lives with her. (AR, Tab 3, p. 15, para. 9);

c. In response to the officer’s question “Does anyone come to visit you on weekends?” HR responded “Uh, K.S., Nana and Margot”.(AR. Tab 3. p. 15, para. 12-14);

d. HR advised that the alleged offence happened “a lot”, “at my house”, “in my room”, when she “starts to go to bed” and she “whispers” at Mr. K.S. (AR, Tab 3, p. 17, lines 9, 11, 18, 23):

e. HR stated that an alleged offence happened “Before, but not today.” “But he wasn’t there cuz it wasn’t the weekend. He only comes on the weekend.” (AR, Tab 3, p. 19, line 31, p. 20, line 4 – 6);

f. HR told the officer a story about her grandfather dying “when I was at my nana’s, when I was a baby” (AR, Tab 3, p. 23, line 18-19);

g. HR advised the officer that she hadn’t told anyone about K.S. except her mother. When questioned when she had told her mother HR responded “Uh, when she – I told her when it was night time and past my – night time.” (p. 25, para. 28-29);

h. Sometime following February 9, 2015 HR, CR and AR moved. HR advised the officer that “I miss my house. I live in a building, now.” (AR, Tab 3, p. 24, line 6);

Delay and Secrets

i. HR advised the officer that Mr. K.S. “wants me to keep it a secret”. (AR, Tab 3, p. 16, para. 25);

j. HR advised the officer “So, I can’t tell my mom and then the police come…” “to like do something. But the police didn’t arrest me. He bringed me to the doctor”. (AR, Tab 3, p. 16, lines 29-30, p. 17, lines 1-3);

k. HR further advised the officer “And I wanted to tell Mommy, but I couldn’t cuz of K.S..””Cuz it was a secret. I didn’t want to keep it a secret.”(AR, Tab 3, p. 26, lines 11-12, 15-16).

Analysis

12The Crown and Defense agree that section 715.1 of the Criminal Code allows for the introduction of a videotape statement in any proceeding against an accused where (i) the complainant is under eighteen years of age at the time of the alleged offence, (ii) the video recording describes the acts complained of, (iii) the videotape is made within a reasonable time after the alleged offence, (iv) the complainant adopts the contents of the videotape while testifying; and (v) the videotape evidence would not interfere with the proper administration of justice.

13Section 715.1 was intended to enhance the court’s truth-seeking function in criminal proceedings involving a child complainant who has suffered sexual abuse. Section 715.1 seeks to include the experience of young complainants in the criminal justice system while ensuring that an accused person’s right to a fair trial is carried out in accordance with the principles of fundamental justice. While the primary purpose of section 715.1 is the attainment of truth, the section is particularly focused on the needs of children and the special protections that they require in order to expose that truth. (See R. v. L. (D.O.) 1993 CanLII 46 (SCC), [1993] S.C.J. No. 72 (S.C.C) at para. 36).

14The Supreme Court of Canada has unanimously upheld the constitutionality of this section and notes that the section is an appropriate response to the problem of safeguarding the interests of young victims. The section assists in the discovery of the truth by preserving an early account of the child’s complaint, assists in the preservation of evidence and the discovery of truth in the trial process and creates a statutory exception to the hearsay rule. (See R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] S.C.J. No. 72 (S.C.C) at paras. 1-2 and 84).

15Section 715.1 has two principal objectives: (1) the creation of a record of what is probably the best recollection of the event, and (2) the prevention or reduction of the likelihood of inflicting further injury on complainants through participation in the criminal justice system. (See R. v. L. (D.O.) at paras 34-35; R v. C.C.F.,1997 CanLII 306 (SCC), [1997] S.C.J. No.89 (S.C.C.) at paras 19-22). This was noted by L’Heureux-Dube J. in R. v. L. (D.O.,) at para. 35 as follows:

…s. 715.1 was intended to preserve the evidence of the child and to remove the need for them to repeat their story many times. It is often the repetition of the story that results in the infliction of trauma and stress upon a child, who is made to feel that she is not being believed and that her experiences are not being validated…[I]t would be difficult to imagine how the legislators could have ignored the benefit of such a provision would have in limiting the strain imposed on child witnesses, who are required to provide detailed testimony about confusing, embarrassing and frightful incidents of abuse in an intimidating, confrontational and often hostile courtroom atmosphere.

16As noted above section 715.1 is a statutory exception to the hearsay rule. Before a recording may be admitted, a voir dire is necessary to review the contents of the tape and determine if the statutory pre-conditions have been met.

17In the present case, the complainant HR was five years old or under at the time of the alleged offence. The age aspect of the statutory requirement is met.

18The Defense has conceded that the video recording describes the acts complained of and therefore the description of the acts aspect of the statutory requirement is met.

19While the Crown expects the complainant to adopt the statement, adoption cannot be determined until the complainant testifies at trial.

20This leaves two statutory pre-conditions that need to be met: (i) proof that the videotape is made within a reasonable time after the alleged offence; and (ii) that the videotape evidence would not interfere with the proper administration of justice.

Statement Made Within a Reasonable Time

21The onus is on the Crown to prove - on a balance of probabilities - that the statement was made within a reasonable time after the alleged offence. (See R. v. S.G., [2007] O.J. (Ont.S.C.J.).

22In assessing whether a recording was made “within a reasonable time” the court will consider the time between the alleged offence and the making of the recording. Where there has been more than one alleged act, time will run from the last alleged incident. (See R. v. L.(S.J.)(2001), 2001 BCCA 361, 155 C.C.C. (3d) 338 (B.C.C.A) and R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.) at para. 74).

23What is reasonable in any given case will depend entirely on the circumstances of that case. A contextual assessment is required. Further, the rationale for delay and the impact of the witness’ ability to recall the events are important factors to consider. Courts need to be mindful of the fact that children, for a number of reasons, do not register time in the same manner as adults, and are often apt to delay disclosure.

24The judiciary are intended to take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults (See R. v. L. (D.O.), at para. 47 quoting Wilson J. in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55).

25Regarding the issue of delay, the reasonableness of the delay in gathering such evidence may depend on any number of factors which can only be determined on a case-by-case analysis.

26In R. v. P.S. (2000), 131 O.A.C. 82, a two-year delay was held to be reasonable. The child complainant’s delayed disclosure was attributed to her “timidity and an inability to communicate because of fear of embarrassment” as well as her relationship with the accused who was her cousin.

27In R. v. M.(S.), (19950, 1995 ABCA 198, 165 A.R. 307 (C.A.), a 17 month delay was held to be reasonable. The explanation for the delay was the natural reluctance of the child to complain plus an honest hesitation by the mother about what was the right thing to do for the child.

28In R. v. J.E.J., 2008 ONCA 133 (C.A.), a 3 year delay was held to be reasonable where the complainant was a 15 year old who had trouble testifying against the accused, her mother’s partner.

29Time is measured from the date of the alleged events and as noted in R. v. Archer, where the offence involves ongoing abuse over a prolonged period, time runs from the last incident of abuse.

30In the circumstances of the present case the Defense submits that the complainant has provided no timeline or baseline for any offence and I am therefore unable to determine whether the recording was made within a reasonable time of the alleged offence.

31I cannot accept the Defense’s submission with respect to this issue.

32The complainant HR was five years old at the date that she made her recording. The recording was made one day following disclosure to her mother. The complainant’s disclosure to her mother was made one day following Mr. K.S.’s last weekend sleepover at HR’s home.

33I am to review the entirety of the evidence and to make a determination of reasonableness on the balance of probabilities.

34Based upon my review of the evidence as a whole I am of the view that the recoding was made within a reasonable time following the alleged offence.

35With respect to the timing of the alleged offence, I find upon review of the statement that the commencement period for the timeline is May 2013, a period of 21 months. I further find upon review of the statement that the possible timeline for the last occurrence is the weekend of February 7 – 9, 2015, a period of four days prior to the statement.

36I base my findings on the entirety of the evidence presented including the following factors:

a. The complainant was five years old and had no real sense of time or dates. The complainant was not able to provide her own birth date and could not provide the date that she provided disclosure to her mother although it was only one day prior to her recording. In response to the query as to when she advised her mother the complainant replied “Uh, when she – I told her when it was night time and past my – night time.”

b. The complainant was able to identify that the alleged offence occurred “a lot, at my house, in my room, when (she) starts to go to bed, before, but not today, cuz it wasn’t the weekend, he (Mr. K.S.) only comes on the weekend.”

c. The complainant advised that she lived with her mother and baby brother and that K.S. and her Nana visited on weekends.

d. The complainant further noted that when she was at her Nana’s her grandfather died.

e. The complainant advised that she missed her “house” and lives in a building now.

37In the circumstances of this case and keeping in mind the young age of the complainant and the manner in which she attempted to articulate the timing of events, I find that the alleged offence was indicated as occurring following May 2013 at the time that the complainant lived at her “house” and Mr. K.S. visited on weekends.

38I further find that by her statement the complainant indicated that the alleged offence commenced following May 2013 “at her house”, “in her bedroom”, when Mr. K.S. visited “on weekends”, and continued to occur “a lot” until the weekend “before” the statement was taken on February 11, 2015.

Delay to Report

39Whether the delay to report is 21 months or four days, the reason for delay by the complainant to report is self-evident and understandable on the facts of this case. I will nonetheless review the issue of reasonableness in terms of delay.

40At the time of the alleged offence and thereafter, HR was somewhere between three and five years old. HR was told to keep the activities a “secret”. HR believed that the police would arrest her if she told the secret. The accused, Mr. K.S., is the father of her baby brother, and her mother’s partner. The accused read to HR and watched movies with her. HR held affection for the accused. HR did not appear to understand that the alleged offenses were wrong. The accused held power and control over HR by virtue of his age, position in the family, and his maturity. Quite simply HR was powerless and the delay, even from May 2013 to February 11, 2015, is entirely reasonable in the circumstances.

41The Defense has presented R. v. D.J.J., [2011] O.J. No. 1517, in support of the submission that the recording was not made within a reasonable time and admission of the video statement would interfere with the proper administration of justice. In the case referred to the complainant was 18 years of age and the offences are alleged to have occurred when the complainant was between the ages of 9 and 13 years. The video recording was made 10 days before the complainant turned 17 years. The recording was found to have been made at least four and as many as five years after the last event. The facts presented in R. v. D.J.J. are entirely different from those in the present case and the case is distinguishable on this basis.

42In the circumstances of this case I find that the recording was made within a reasonable time after the alleged offence whether the time period between the recording and the last incident of the offence is 21 months or four days.

Discretion to Exclude the Videotaped Statement

43The court may exclude an otherwise admissible video recording if the admission of the recording would interfere with the proper administration of justice.

44In R. v. L. (D.O.), L’Heureux-Dube J. lists several factors which may be relevant to the exercise of discretion to exclude a videotaped statement:

a. The form of questions used by any person appearing in the statement;

b. Any interest of anyone participating in the making of the statement;

c. The quality of the video and audio reproduction;

d. The presence or absence of inadmissible evidence in the statement;

e. The ability to eliminate inappropriate material by editing the tape;

f. Whether other out of court statements by the complainant have been entered;

g. Whether any visual information in the statement may be prejudicial;

h. Whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant;

i. Whether the trial is by judge alone or jury; and

j. The amount of time which has passed since the making of the tape and the present.

45The circumstances must be considered in their entirety, and the admissibility is determined on a case-by-case basis. The list above is not exhaustive, however, residual discretion is limited to those occasions where its admission would operate unfairly to the accused and interfere with the proper administration of justice.

46In support of exclusion, the Defense submits that (i) the statement should otherwise be excluded on the basis of an out of court statement made by the complainant; (ii) the complainant is now six years old and “unquestionably more mature now than she was nearly a year ago”; (iii) the prosecution has been allowed to use another method to facilitate the giving of the evidence by the complainant through the use of a CCTV room with a testimonial aid; and (iv) the complainant has not provided a timeframe to the allegations.

47With respect to the “out of court statement”, I note that the Defense is entitled to cross-examine the complainant at the trial in the same manner that the Defense cross-examined at the preliminary inquiry. The Defense submits that the accused is prejudiced if HR is required to rely on her memory with respect to the out of court statement and the video tape with respect to the allegations. I disagree. The out of court statement made by the complainant on July 15, 2015, in preparation for the preliminary inquiry is a statement made by HR questioning whether the statements made about the accused in the video statement were true. Defense counsel cross-examined the complainant at the preliminary inquiry and she confirmed that the statements made in the video were true. The law is clear that the complainant is required to recall that the statements made were truthful at the time she gave the statement. The complainant is not required to recall the details of the statement. In the circumstances, there is no prejudice that would warrant the exercise of residual discretion in this case.

48As for the submission that the child has increased maturity, the complainant is now only six years old. She remains a child in need of the protection afforded by section 715.1. The Supreme Court of Canada in R. v. J.Z.S., 2010 SCC 1, 2010 S.C.C. 1, reaffirmed that there is no constitutional right to face to face confrontation with a witness. Any right that does exist is a limited right which can give way when balanced with the goal of ascertaining the truth and the protection of children. The right of cross-examination remains intact. The order, if granted, will not interfere with the administration of justice. However, if the order were not granted, justice would not be served in the circumstance of this case, and the exclusion of the recording would interfere with the proper administration of justice.

49As for the submission that the complainant is allowed to use a CCTV room, this is the right of the child and not a concession or an allowance. The exercise of the child’s right does not warrant exclusion of the videotape.

50I have dealt with the issue of timeframe as provided by the complainant above, and note that my comments remain the same as it relates to residual discretion.

51On the basis of the evidence before me I decline to exercise my residual discretion to exclude the videotape.

Conclusion

52The application by the Crown for an Order under section 715.1(1) of the Criminal Code,

is granted, subject to the complainant adopting the video tape statement.