ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
D.T
Debra Moskovitz, for the Crown
Dean Embry, for the accused
HEARD: March 27, 2017
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
Pre-Trial Ruling
Admissibility of Video Recorded Interview Statement
Section 715.1 of the Criminal Code
A. Introduction
1The accused currently faces an indictment that charges him with having committed three sexual offences against the same young female complainant. More particularly, he is alleged to have sexually assaulted the complainant, touched her for a sexual purpose, and invited her, for a sexual purpose, to touch him. All of these offences are alleged to have been committed in Toronto between January 1, 2008 and August 31, 2012. The accused has pleaded not guilty to all of these charges.
2On February 5, 2015 the complainant provided the police with a video recorded interview statement, in which she outlined in detail the nature of her allegations against the accused. By way of a pre-trial application, the Crown now tenders this video recording as evidence under s. 715.1 of the Criminal Code, R.S.C. 1985, chap. C-46. Defence counsel objects to the admission of this evidence arguing, essentially, that it was not made “within a reasonable time after the alleged offence,” as required by the provision.
B. The Applicable Legal Principles
3Section 715.1 of the Criminal Code was enacted in 1988 as part of legislation designed to respond to the realities of child abuse and to accommodate the needs of child witnesses. See An Act to Amend the Criminal Code and the Canada Evidence Act, S.C. 1987, chap. 24, which was proclaimed in force on January 1, 1988. Section 715.1 was designed to address these issues by seeking to preserve an early account of the child’s complaint in order to assist in the discovery of the truth, and to provide a more effective procedure for the introduction of the child’s story into evidence at trial. More specifically, the underlying two-fold purpose of s. 715.1 of the Code was: (1) to enhance the ability of the court to discover the truth, by preserving what is likely the child’s most accurate and best recollection of the alleged event; and (2) to prevent or substantially reduce the likelihood of inflicting further injury upon the child witness as a result of their participation in court proceedings. See R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at paras. 18-24.
4According to s. 715.1 of the Code, in any proceeding against an accused in which a “victim or other witness” was under the age of 18 at the time of the alleged offence, a video recording made “within a reasonable time after the alleged offence,” in which the victim or other witness “describes the acts complained of,” is substantively admissible in evidence, provided the victim or other witness “adopts the contents of the video recording” while testifying, unless the court is of the opinion that the admission of the video recording “would interfere with the administration of justice.” Accordingly, the necessary preconditions of admissibility are as follows: (1) the victim or other witness must be under 18 years of age at the time of the alleged offence; (2) the video recording must be made within a reasonable time after the alleged offence; (3) the victim or other witness must, in the video recording, describe “the acts complained of;” and (4) the victim or other witness, while testifying, must “adopt” the contents of the videotape. Nevertheless, there remains a judicial discretion to exclude a statement where its prejudicial effect outweighs its probative value.
5This legislation is constitutionally valid. In R. v. L.(D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at pp. 428-429, the Supreme Court of Canada unanimously concluded that s. 715.1 of the Code did not limit or violate any of the constitutional rights protected by ss. 7 or 11(d) of the Charter. Lamer C.J.C., writing the brief judgment of the six-member majority of the Court, observed that s. 715.1 was enacted by Parliament “in response to the dominance and power which adults, by virtue of their age, have over children” and was designed by Parliament to “accommodate the needs and to safeguard the interests of young victims of various forms of sexual abuse” by making their “participation in the criminal justice system less stressful and traumatic,” and aiding in the “preservation of evidence and the discovery of truth.” See also R. v. Toten (1993), 1993 CanLII 3427 (ON CA), 83 C.C.C. (3d) 5 (Ont.C.A.).
6One of the important pre-conditions to the substantive admissibility of such a statement is that the video recording must have been “made within a reasonable time after the alleged offence.” The reasonableness of the time period must be established on the balance of probabilities. See R. v. S.G. (2007), 2007 CanLII 20779 (ON SC), 221 C.C.C. (3d) 439 (Ont.S.C.J.) at paras. 9-11; R. v. P.(N.H.), 2011 MBQB 102, at paras. 9-14; R. v. Bradfield, 2011 SKQB 50, at para. 14; R. v. Desjarlais, 2013 MBQB 190, at paras. 19-23; R. v. W.(G.), 2014 ONSC 507, at paras. 11-15; R. v. K.S., 2016 ONSC 1403, at para. 21.
7The period of time which must be “reasonable” is the period between the commission of the alleged offence and when the witness provided the video recording outlining the details of that offence. This point is aptly illustrated by R. v. Lucas, 2001 BCCA 361, where the Crown tendered videotaped statements by a young complainant made very shortly after the first disclosure of the alleged sexual activity, but some four years after the sexual activity allegedly concluded. The trial Judge admitted these statements as the time between the “disclosure” of the sexual activity and the videotaped statements was reasonable. The British Columbia Court of Appeal disagreed, holding that this approach was “inconsistent” with the language of s. 715.1 of the Code. Saunders J.A., on behalf of the Court, stated that while Parliament could have framed the section as measuring the time “from disclosure,” this was not the choice made by Parliament, which provided instead “that measurement starts from the date of the alleged events.”
8The jurisprudence also establishes that where the alleged offence involves the ongoing sexual abuse of a young complainant over a prolonged period of time, the operative starting date of the time period which must be reasonable, is the date of the “last incident of abuse.” See R. v. Archer (2004), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont.C.A.), at paras. 73-74.
9Whether the time period between the alleged offence and the video recording will be viewed as “reasonable” will depend upon a careful consideration of all of the circumstances presented by each individual case. The “most important” of these factors are “the reasons for the delay and the impact of the delay on the child’s ability to accurately recall the events in question.” See R. v. S.(P.) (2000), 2000 CanLII 5706 (ON CA), 144 C.C.C. (3d) 120 (Ont.C.A.) at para. 71, leave denied, [2000] S.C.C.A. No. 486.
10The Court, more generally, should consider such factors as the age of the witness, the period of delay (and the reasons underlying that delay) prior to the disclosure of the alleged offence, the specific nature of the allegations, the nature of the relationship between the witness and the accused, the period of delay between the disclosure and the video recorded statement (and the reasons underlying that delay), the emotional make-up of the witness, the potential impact that the delay may have had on the ability of the witness to accurately recall the events in question, and the existence of any circumstances in the intervening delay (i.e. between the alleged offence and the video recorded statement) that might impact upon the reliability of the videotaped statement. See R. v. S.(P.), at paras. 71-75. In balancing these various considerations, the Court should be ever mindful of the reality that child victims of sexual abuse, for a variety of reasons, are “often apt to delay disclosure” for a substantial period of time. See R. v. L.(D.O.), at p. 468; R. v. W.(R.) 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 136.
11Given the “case specific” nature of the reasonableness inquiry mandated by s. 715.1 of the Code, and the wide variety of considerations that factor into the delicate balancing process that must be undertaken by the trial Judge, it is difficult to formulate any guidelines governing the practical application of this provision. However, my review of the judicial authorities suggests that delays as long as two or three years have usually been held to be reasonable. See, for example, R. v. S.(P.), [two years held reasonable]; R. v. M.(S.) (1995), 1995 ABCA 198, 98 C.C.C. (3d) 526 (Alta.C.A.) [17 months held reasonable]; R. v. K.S., at paras. [21-42, 21 months held reasonable]; R. v. Quash, 2013 BCSC 2498, at paras. 36-59 [22 months held reasonable]; R. v. P.(J.D.), 2010 ABCA 299, [2010] A.J. No. 1156 [25 months held reasonable]; R. v. S.G., at paras. 5-7, 16-33 [three years held reasonable]; R. v. J.(J.), 2008 ONCA 133, at paras. 8-9 [three years held reasonable]; R. v. M.S.J., 2016 NWTCA 2, at paras. 12-13, [three years held reasonable]. In exceptional circumstances, however, even much longer periods of time have been held to be reasonable. See R. v. B.(W.E.), 2012 MBCA 23, at paras. 19-23.
C. Applying These Principles in the Present Case
12One of the contentious issues between the parties on this application is the precise period of the delay between the conclusion of the alleged sexual offences against the complainant and her video recorded interview statement. While acknowledging some vagaries in the evidence, the Crown suggests that the delay is between two and one-half years and three years. Defence counsel, on the other hand, contends that the period of delay is actually three and one-half years, and that this delay is at the “upper edge” of what the authorities have generally held is reasonable.
13After carefully examining the evidence filed on this application, namely, the complainant’s video recorded interview statement and her testimony at the preliminary inquiry in this case, my conclusion is that the period of delay is somewhat less than three years duration. I have reached this conclusion in light of the following evidence.
14The complainant testified that the accused started to sexually assault her when she was eight years of age, and in grade three. More specifically, the complainant testified that she was sexually assaulted for the first time, in the “spring” time after she had turned eight years old, but before her sister’s birthday in May. As the complainant would have turned eight years old in August of 2008, this would mean that the accused first sexually assaulted her in the spring of 2009.
15The evidence of the complainant is that the sexual offences by the accused lasted for a period of three years, between the time that she was eight and 11 years of age. Given this time span of three years, and the fact that the offences ended when she was 11 years old, this would mean that the sexual offences stopped in the “spring” of 2012 (but before May).
16If the sexual offences allegedly committed by the accused ended in the “spring” of 2012, and the complainant provided her video recorded interview statement to the police on February 5, 2015, the total delay between the conclusion of the offences and the video recorded statement is somewhat less than three years – approximately 34 months to be more precise. While this factor is not determinative of the issue, as I have indicated there are a number of judicial authorities that have held that delays of this length are “reasonable” within the meaning of s. 715.1 of the Code.
17The other relevant factors, on balance, also suggest that this period of delay was reasonable within the meaning of s. 715.1 of the Code. More particularly in this regard, I have taken the following considerations into account:
The sexual offences by the accused are alleged to have taken place on a very regular basis when the complainant was quite young, namely, when she was between eight and 11 years of age. She testified that she did not initially appreciate that the sexual conduct of the accused toward her was “wrong.” When she provided her video recorded statement, the complainant was 14 years of age.
As for the reasons for the delay in the complainant reporting the sexual abuse, she testified that the accused told her that their sexual activities together were “our secret,” and that he was her “older boyfriend.” As she explained in her evidence, it was only later when she realized that she had to get this “off [her] chest” and felt the “need” to tell someone else about this. It was not until she developed a relationship with a particular woman at a group home, that she felt comfortable disclosing the alleged sexual offences. This took place in January of 2015.
There was little delay in the police securing the complainant’s video recorded police interview statement after the complainant first disclosed the commission of the alleged offences. As I have indicated, the complainant’s first disclosure took place in January of 2015, and the video recorded interview statement was obtained just a short time later, on February 5, 2015.
The allegations by the complainant are that the accused, the husband of the woman who ran the apartment day-care unit the complainant attended, and who was approximately 60 years of age, began to sexually abuse the complainant, when he was alone with her, by having her regularly perform acts of fellatio upon him. On each such occasion, the accused would massage or fondle her chest area under her clothes. On one isolated occasion, when the complainant was nine or ten years of age, the accused had her take her pants down and he rubbed her vaginal area. These sexual activities made the complainant feel “uncomfortable.” Given the nature of these allegations, and the vast difference in the respective ages of the accused and the complainant, and the position of respect and authority occupied by the accused (i.e. the complainant was often left alone in his care), it is perhaps not surprising that the complainant delayed disclosing the alleged offences. She explained that she was simply “scared” to tell her mother because she did not want “anything to happen.”
Having reviewed the evidence filed on this application, it is apparent that the delayed disclosure and reporting of the alleged sexual offences had little impact on the ability of the complainant to recall the substance of the events in question. Significantly, the complainant was 14 years of age when she provided her video recorded statement to the police. In other words, she was not of such a young age that a delay approaching three years would raise obvious concerns about her ability to recall the incidents of alleged sexual abuse. See R. v. S.G., at para. 29.
The evidence filed on this application discloses no circumstances, between the commission of the alleged offences and the complainant’s video recorded police interview statement, which might impact negatively upon the reliability of the video recorded statement. There is no evidence, for example, that anything happened during this period of time which provided the complainant with a motive to falsely implicate the accused in a crime he did not commit. See R. v. S.(P.), at para. 75.
It is important to recall that child victims of sexual abuse are, for a variety of reasons, “often apt to delay disclosure” of the sexual abuse for a substantial period of time. See R. v. L.(D.O.), at p. 468; R. v. W.(R.) 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 136.
D. Conclusion
18In the result, I find that the video recorded interview statement that the complainant provided on February 5, 2015 was made within a reasonable time following the conclusion of the alleged sexual abuse by the accused. Defence counsel has raised no issue with any of the other pre-conditions of admissibility, and the evidence establishes that they have been met. Accordingly, provided that the complainant adopts the statement during her trial testimony, the video recorded statement will be substantively admissible in evidence. In my view, there is no basis to suspect that the admission of the statement might “interfere with the administration of justice,” or that there is any proper basis to exclude the statement in an exercise of judicial discretion.
Kenneth L. Campbell J.
DATE: March 28, 2017
CITATION: R. v. D.T., 2017 ONSC 1953
COURT FILE NO.: CR-17-1-236
DATE: 20170328
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
D.T.
Pre-Trial Ruling
Admissibility of Video Recorded Statement
Section 715.1 of the Criminal Code
K.L. Campbell J.
Released: March 28, 2017