R. v. J.M., 2016 ONSC 535
COURT FILE NO.: CR-14-50000342-0000
DATE: 20160121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.M.
Defendant
Kelly Simpson, for the Crown
Joshua Frost, for the Defendant
HEARD: At Toronto, January 18, 2016
m. g. Quigley J.
Ruling re: [s. 715.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[1] On this application, the Crown seeks rulings from the court that videotaped statements made by the complainants, K.C. and K.C.1, be admitted into evidence at the trial of the accused pursuant to section 715.1 of the Criminal Code.
[2] Section 715.1 of the Criminal Code provides as follows:
In any proceeding against an accused in which a victim or other witness was under the age of 18 years at the time the offense is alleged to have been committed, a video recording made within a reasonable time after the alleged offense, 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 and evidence would interfere with the proper administration of justice. (my emphasis)
[3] The accused is charged with sexual assault, sexual interference and invitation to sexual touching in relation to K.C. for incidents that allegedly occurred between May 2001 and October 2010. The accused is also charged with sexual assault and sexual interference in relation to the complainant K.C.1 for incidents that allegedly occurred between January 2006 and December 2009. Finally, the accused is also charged with two counts of sexual assault, sexual interference and sexual exploitation in relation to a third complainant, A.P., for incidents that allegedly occurred between November 1990 and November 2001. The application for videotaped evidence to be admitted into evidence relates only to K.C. and K.C.1.
[4] The accused is the maternal uncle of K.C. and K.C.1. At the time of the alleged offences against them, he was living with his sister, their mother, her husband, and her three daughters and one son. K.C. was between five and six years of age when the alleged abuse started and it continued until she was about 14 years of age. K.C.1 was approximately six years of age when the alleged abuse started against her, and it went on until she was 10 years of age.
[5] It was admitted in the case of both complainants, that the alleged abuse ended in October 2008 when they moved with their mother and father to a new residence in V[…], but the accused who had lived at the former residence on S[…] Avenue did not accompany them to their new home. At the time that they testified at the Preliminary Hearing in this case, K.C. was 17 years of age and K.C.1 was 15 years of age. Evidently K.C. is now 19 years of age and K.C.1 is 16.
[6] There is no question that both complainants were under the age of 18 when the offences were alleged to have been committed. Transcripts of the videotaped statements of both of the complainants, two in the case of K.C. and one for K.C.1, were included in the Crown's application record. In those statements they described the acts complained of, and it is anticipated that both of the complainants will adopt the contents of their videotaped statements.
[7] There is only one question to be determined on this application. That is whether the videotaped statements were made “within a reasonable period of time after the alleged offences” as is required by section 715.1 and the jurisprudence that has interpreted it. The commencement for the measurement of that time in this case must be October 31, 2008 because that is acknowledged to be when they moved and the last point in time when any abuse could have been perpetrated against either of these complainants by the accused.
[8] In R. v. F. (C.C.), 1997 306 (SCC), [1997] 3 S.C.R.1183 at paragraph 21, the Supreme Court of Canada emphasized that the primary purpose of section 715.1 is "to create a record of what is probably the best recollection of the event that will be of inestimable assistance in ascertaining the truth."
[9] In enacting section 715.1, Parliament recognized that recollection decreases in accuracy with the passage of time: see R. v. L.D.O., 1993 46 (SCC), [1993] S.C.J. No. 72 at para. 76. In that case, Justice L’Heureux-Dubé noted that there is "a clear advantage in gathering evidence from children as early as possible," given that studies show that the memories of children may be clear and accurate at the time of the incident, but that their memories may fade faster than those of adults. As such, the provision recognizes that videotaped statements can provide an avenue through which evidence from children can be gathered and preserved at an early stage in order to address concerns regarding reliability and accuracy that inevitably arise as time passes until the mater comes to trial. Plainly, it is the reliability and accuracy concerns that arise naturally relative to children’s evidence that make it highly important that the evidence be obtained early, and within a reasonable time after the alleged incident if it is to be relied upon as primary evidence at trial.
[10] In R. v. D.J.L., 2011 ONSC 2005, at para. 11, Ellies J. of this court concluded, correctly in my view, that:
[t]he word "reasonable" found in section 715.1 (1) cannot refer simply to the reasons for the delay. The meaning of that word must be informed by the purposes for which the section was enacted, in my view. Those purposes were considered in L.(D.O.). They include:
(a) [T]he preservation of an early account of the child's complaint; and
(b) [D]iminishing the stress and trauma suffered by a child complainant.
[11] As such, a delay "in taking the video recording will become unreasonable where the length of that delay undermines the purposes of section 715.1": Ibid., at para. 13. Expressed differently, it will be difficult to regard a videotaped statement of a child’s complaint as an “early account” where the time elapsed from the last occurrence until the date of the statement starts to be measured in multiples of years.
[12] In this case, the delay between the last date on which the offences could have been perpetrated against either of these complainants and the date of their disclosure is essentially 4 1/3 years, from October 31, 2008 until the 25th and 27th of March, 2013, and two months over 5 years elapsed from October 31, 2008 to January 4, 2014 when K.C. gave her second videotaped statement detailing further incidents of abuse that she did not recount a year prior, but that she claimed to have remembered with the passage of time.
[13] Crown counsel explained, and I acknowledge, that K.C. is emotional and upset about these matters, and about the abuse that she alleges was perpetrated against her. Her emotional demeanour and reaction to disclosing the alleged abuse is evident in the statement that she provided to the police in 2013. She appears to be crying frequently through most of the statement.
[14] There was some explanation for the initial delay of four years and three months in giving the statement insofar as she claimed to have initially told her mother about the first instance involving her uncle in 2005. That was at a point in time before the accused lived with K.C. and her family, but her father allegedly confronted the uncle with her first reported complaint, but the uncle assured the father that nothing happened, and thereafter nothing happened to remove the accused from the scene. Instead, the uncle appears at some point to have been permitted to live in the home and is alleged to have perpetrate further abuse against K.C., and he sister K.C.1, for the following several years, but without the parents being aware, even though the evidence showed the mother did not work outside of the home and was there virtually all the time. .
[15] In the videotaped statement, K.C. claimed she could not disclose these events because that experience of telling her parents about the first incident of abuse, but where no action being taken against the accused, her Uncle J.M., had caused her to come to believe that no one would believe anything that she said. It was only when her mother, S.M., caught her and learned of her extensive truancy from school in 2013 that she disclosed the alleged sexual assaults perpetrated against her as the reason for her inability to focus or attend school. At that time, her mother discovered that K.C. had been leaving school to meet with a boy at a nearby McDonald’s restaurant. This was not unlike the circumstances Spies J. referred to in R. v. S.G., 2007 20779 (ON SC), [2007] O.J. No. 2203.
[16] K.C.1’s disclosure only came about after her sister went with their mother to give her statement to the police on March 25, 2013. The mother returned home and allegedly asked, at the insistence of the police who had just taken K.C.’s statement, if any of the other children had been abused by the accused. K.C. may have been present on one occasion when their mother spoke to the other children, but evidently not when K.C.1 first volunteered that she had been abused by J.M.. That caused the mother and K.C.1 to return to the police station a day or two later, on March 27, 2013 when she gave her own statement to the police. K.C.1’s demeanor was not as distraught on the surface as that of K.C., art least as seen in the videotaped statements, but she was evidently quiet and somewhat fearful. On several occasions in the course of giving her statement, she stated that the reason she did not report the abuse earlier was because she was afraid the accused would get mad and because he continued to give her “Loonies and Toonies” to keep quiet.
[17] Whether delay is reasonable depends entirely upon the circumstances of the case, as Justice L’Heureux-Dubé noted in L.D.O. at pages 467–68. In that case, taking into consideration all of the circumstances, the trial judge came to the conclusion that the lapse of time was reasonable and was upheld on appeal.
[18] The timeframe for reasonability has varied in the cases. Crown counsel advanced the decision of the Manitoba Court of Appeal in R. v. W.E.B., [2012] M. J. No.103, where a delay of 9 1/2 years or longer after the events occurred was upheld as reasonable. However, that was a very special and unusual case where the victim was developmentally challenged and where a full and extensive voir dire was held involving expert opinion.. That evidence provided a sound foundation for the conclusion that a delay of that duration did not amount to unreasonable delay in the very particular circumstances of that case.
[19] Nevertheless, in contrast to that one notable exception, the high watermark for permitted delay in other applications brought under section 715.1 and that were brought to my attention appears to be 3 1/2 years.
[20] In R. v. G.W., 2014 ONSC 507, [2014] O.J. No. 360, J.P.L. McDermott J. was faced with circumstances where the videotaped statement of the complainant’s allegations was made sometime between 3 1/2 and five years from the date of the first alleged offence, which the complainant said took place when she was 10 to 11 years of age. At paragraph 21 he states as follows:
More importantly, although there is no fixed time for being a "reasonable time" and the matter is to be dealt with on a case-by-case basis, Ms. Wanamaker 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.), 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 R. v. 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.
[21] The last case referred to, R. v. P.S., is particularly important to my mind, not only because of the comments about delay of Moldaver J.A., as he then was, but because of the similarities of the demeanour presented by the witness that is said to call for the videotaped statement to be admitted to minimize trauma and anxiety to the complainant. He states as follows at paragraph 75:
I am satisfied that there was ample evidence in the record to explain C.’s late disclosure. I am further satisfied that it was open to the trial judge to rely on the delay in disclosure to justify her finding that the videotape was made within a reasonable time of the alleged offence. Although two years is a long delay, C. was not so young, that this delay would raise obvious concerns about her ability to accurately recall the incident with the appellant (see R. v. F. (C.C.) (1997), 1997 306 (SCC), 120 C.C.C. (3d) 225 (S.C.C.) at 234). In addition, there is no suggestion that anything occurred in the two-year timeframe that may have influenced C. so as to cast doubt on the reliability of her videotape statements; nor is there anything to indicate that C. was motivated to implicate the appellant in a crime he did not commit. Admittedly, there were frailties in her recollection including her reference to "sex" in the handwritten note and her belief that she had reported the incident to her parents shortly after the event. Nonetheless, on balance, while I consider this to be a borderline case, I am not persuaded that the trial judge erred in admitting the videotape. (my emphasis)
[22] So there is an example in the jurisprudence where a period of two years, a period two and a half years shorter than the delay involved in this case, was considered to be “borderline” and yet in circumstances where the demeanor of K.C. is arguably similar or comparable to that of C. in that decision, and where there was a report to parents, as there is claimed to have been in this case.
[23] In the case of K.C.1, however, there is no similar explanation of delay as there was in the case of her sister: she simply didn't come forward until asked specifically by her mother whether her uncle had abused any of the other children following the videotaped statement taken from her sister K.C.. She is not to be blamed for that delay. As R. v. D. (D.), establishes, there are many reasons a victim of sexual abuse may delay disclosure. It is simply to acknowledge that a period of 4 1/2 years did transpire from the last occasion when any abuse could have been perpetrated to the point in time where the video statement was taken. Moreover, there were considerable uncertainties in her statement relative to when the alleged conduct began or when it came to an end. Those factors combined call into question the reliability of the statement as an early statement taken within a reasonable time after the alleged offence in order to fulfill the very purposes Parliament had in mind in enacting section 715.1.
[24] While I find that the case is facially somewhat stronger for the admission of the videotape statement of K.C. under section 715.1 than it is for that of her sister, K.C.1, I do not consider the particular circumstances that she was in or the demeanor and emotion she presents as this trial approached to have been materially different from that displayed by C. in a case where a two-year delay was considered borderline. Yet here, the period of delay is more than twice that amount relative to the first statement, and a year longer than that in the case of the second made in January 2014. Moreover, K.C. is now an adult at the time she testified at this trial and K.C.1 is a month from her 17th birthday.
[25] R. v. L.D.O. emphasizes that Parliament’s purpose in enacting s. 715.1 was twofold: (i) to permit the preservation of an early account of the child's complaint, and (ii) to diminish the stress and trauma suffered by a child complainant associated with testifying at a trial of a person at a trial like this, charged with having perpetrated sexual abuses against the child complainants over a protracted period.
[26] It is well-established that recollection decreases in accuracy with the passage of time and thus as more and more time passes between the time when the offences are alleged to occur and the time when the statement is taken, the inevitable impact of the delay is that the reliability and accuracy of the statement potentially diminish and are called into doubt, thus compromising the foundational premise for the provision’s appliction. That is to permit the admission into evidence of statements taken within a reasonable time of the offences alleged because, when taken in reasonable proximity to the events, they are capable of providing "inestimable assistance in ascertaining the truth": see R. v. L.D.O., 1993 46 (SCC), [1993] S.C.J. No. 72 at para. 76; R. v. S. (P.), 2000 5706 (ON CA), [2000] O.J. No. 1374 (Ont. C.A.) at para. 71; and R. v. F. (C.C.), 1997 306 (SCC), [1997] 3 S.C.R. 1183 at para. 21.
[27] In my view, the delay in this case between the time when the offences occurred and the time when the videotape statements were taken is too lengthy in all of the circumstances to permit them to be construed as “an early account of the child’s complaint,” and thus to be able to be relied upon to fulfill the first legislative purpose of the provision of assisting in ascertaining the truth.
[28] Secondly, s. 715.1 was intended to diminish the stress and trauma that would be suffered by a child complainant associated with testifying at a trial of a person such as this. The fact of the matter, however, is that neither of the two complainants, K.C. or K.C.1 are still children of an age that the section was designed to protect. As the period of delay extends from the date the offences ended until the date when the statement is taken, when combined with the delay that inevitably results as the matter proceeds to trial, we are left with complainants such as these two who are no longer children at the time of the trial.
[29] Thus, the second policy objective that Parliament had in mind in enacting the provision, to diminish the trauma suffered by a child complainant in having to testify at trial is no longer present when the complainants are in their late teens. This is not to suggest that giving evidence by them may not be difficult or traumatic, as it may be for any adult witness, especially where the allegations are of the personal violation of the complainant as in sexual abuse cases. It is simply a recognition that at the age they have now achieved, they will be better able to deal with that stress and trauma, unlike younger children who the provision was designed to protect: see R. v. L. (D.J.), 2011 ONSC 2005 at paras. 11 and 13.
[30] For these reasons I had determined that the application must be dismissed.
M. G. QUIGLEY J.
Released: January 21, 2016
CITATION: R. v. J.M., 2016 ONSC 535
COURT FILE NO.: CR-14-50000342-0000
DATE: 20160121
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.M.
Defendant
RULING RE: S. 715.1 OF THE CRIMINAL CODE
M. G. Quigley J.
Released: January 21, 2016