Court File and Parties
COURT FILE NO.: CRIMNJ(P) 534/14 DATE: 2017 04 07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN R. Prihar, for the Crown
- and -
BRADLY WALSOM F. Genesee & E. Song, for the Defence
HEARD: February 28, 2017, at Brampton
RULING – ADMISSIBILITY OF PROPOSED SECTION 715.1 EVIDENCE
Hill J.
INTRODUCTION
[1] On February 28, 2017, the court ruled that the videotaped evidence proffered by the prosecution would not be substantively admissible pursuant to s. 715.1 of the Criminal Code. These are the reasons the court undertook to provide.
THE COMPLAINANT’S POLICE INTERVIEWS
[2] On consent, the 21-year-old complainant (S.W.) was permitted to give her evidence by closed circuit TV while seated in a room adjacent to the courtroom. Also on consent, S.W. was permitted to have a support person (Ms. Pirie) present with her in the room where she was seated. An order was made pursuant to s. 486.1(5) of the Criminal Code that the witness and the support person not communicate with one another while S.W. was testifying.
[3] Crown counsel alerted the court that she intended to seek to have videotaped statements given by S.W. to the police, on June 27 and on June 28, 2013, played for the witness with a view to having the statements admitted for the truth of their contents pursuant to s. 715.1 of the Criminal Code.
[4] At the preliminary inquiry, S.W. professed to have no recall of giving her first videotaped statement. To her recall, she was exhausted, intoxicated and high at the time. As to the second videotaped statement, S.W. testified at the preliminary inquiry that, “I remember somewhat of it”. After this video was played, S.W. stated, “I hardly heard what I said”. With leading questions by Crown counsel (not Ms. Prihar) as to whether she would “adopt” the videotaped statements as her preliminary inquiry evidence, S.W. replied affirmatively. Given the leading nature of these questions, the degree of sophistication of the complainant, and the nature of the legal test for adoption, it cannot reasonably be said that S.W. adopted the statements within the meaning of s. 715.1 of the Code.
[5] Almost immediately into examination in-chief of the complainant, Crown counsel asked her to watch the June 27, 2013 (6:24 p.m.) videotaped statement given by her to a police interviewer.
[6] In the video (Exhibit #23), S.W. can be seen lying on a couch in the interview room responding to questions from the interviewer. At about the 2 minute and 25 second mark of the video play, the court reporter’s equipment in the courtroom began to pick up S.W.’s voice apparently speaking to Ms. Pirie in the video room adjacent to the courtroom. Then, seconds later, after approximately 2 minutes and 39 seconds of the video, S.W. stated: “Can you please stop the video, I can’t watch this”. This exchange then occurred:
COURT: Any why is it you are unable to watch it?
S.W.: I can’t watch this. My anxiety is really fucking bad. I can’t watch this. I’m sorry.
COURT: Alright, can we …
S.W. I feel like I can’t breathe. I’m sorry. I can’t watch this.
[7] The video play was halted and counsel were asked their positions. Crown counsel disclosed that while S.W. had had difficulty watching the videos in the course of witness preparation, she had not anticipated a problem of this magnitude.
[8] A court recess was taken for counsel to further consider their positions. On return, Ms. Prihar raised two alternative options. The preferred approached was not to have S.W. watch the videos as part of her trial testimony but rather to elicit from the witness when she had last seen the video statements and then to inquire whether, in those videos, she had been telling the truth. Crown counsel noted that, “I don’t believe I’m legally permitted to play one but not both and seek adoption of only the second one”. The submitted alternative was to forgo the s. 715.1 evidence application and to lead oral testimony from S.W. in support of the allegation.
[9] On behalf of the accused, Mr. Genesee strenuously opposed any attempt at adoption by the witness unless she actually viewed the video statements while testifying in this trial under oath.
[10] Mr. Genesee further raised an inquiry as to whether anyone had consulted with S.W. during the court recess after the video play was halted. Crown counsel then disclosed that she and the investigating officer had, at the break, approached S.W. with Ms. Pirie present. Crown counsel informed the court that she and the officer had asked S.W. what was making “her so anxious” with S.W. responding that it was very embarrassing and difficult to watch the video, she felt unable to breathe, she felt like pacing up and down, and because she was upset, she felt she might throw the video monitor.
[11] The court admonished counsel for informally speaking to S.W. in the course of the court having under review the s. 715.1 application and S.W.’s ability to adopt earlier video statements. It was agreed that voir dire evidence from Ms. Pirie would be heard after the lunch break as to the meeting held with S.W. at the court break minutes earlier.
[12] At the lunch break, counsel endeavoured as well to research the relevant law. Once court returned to session, Mr. Genesee informed the court that the defence accepted that the conduct of the prosecutor and the investigator amounted to unintentional error in judgment and that the circumstances were as had been described by Ms. Prihar. The defence did not require to hear from Ms. Pirie. With no caselaw advanced directly on point, the court ruled that Crown counsel could pursue her first option with S.W. which might, depending on the witness’ responses, lead to a s. 715.1 adoption. The witness’ evidence continued:
CROWN COUNSEL: In terms of that video, were you trying to tell the truth about what happened?
S.W.: uhm, when they did the first video, uhm, in this video, I wasn’t all there in my head, uhm, I remember hallucinating very bad and what I believe I saw is actually what I believed and it wasn’t until a couple of days later I realized it wasn’t real … and then I started realizing and then actually I started remembering what really happened so, so when I listened to this video it’s embarrassing because I honestly believed that there was an animal in the room because I hallucinated so bad because I was on medication and plus … alcohol, and there was marijuana in my system and when that stuff mixes together you don’t … it just doesn’t go well with certain people … some people react differently, right … but I remember hallucinating that there was an animal there, but there was no animal there but I hallucinated that there was an animal there.
COURT: Is then when you were giving your video statement?
S.W.: Yes. And then I realized after that it wasn’t real.
CROWN COUNSEL: Okay. Other than there being an animal in the room, is there anything else that you believe was not true in that video?
S.W.: I know I was raped, uhm, but the second video makes more sense because I was all there in my head so … just watching this one is embarrassing … it’s hard to explain … I have really bad anxiety … and when I get really bad anxiety, I’ll pace in the room and I can’t sit still so that’s why asked the monitor to stop, to stop playing the video because I didn’t want to act that way in the courthouse because it’s embarrassing.
COURT: Would you be able to watch the video if we gave you the freedom to get up and walk around the room where you are?
S.W.: Probably not because I’ll start scratching at my skull and as I’m telling you, it’s not pretty, like I’ll actually scratch my head to the point that I’ll bleed so I don’t think it’s a really good idea … trust me, if I could watch the video, I would, but I’m telling you why I cannot.
[13] After hearing submissions, the court ruled, with reasons to follow, that the Crown had not established a case for adoption within the scope of s. 715.1 of the Code for substantive admissibility of the videotaped statements. It was understood that, if so advised, defence counsel could cross-examine S.A. upon any material inconsistencies between her trial testimony and the video statements. As well, Crown counsel advised the court that, arising out of the ruling and circumstances as they then stood, that she might “have further applications to make”. No further applications were made.
DISCUSSION
[14] Section 715.1(1) of the Criminal Code provides that:
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.
[15] The provision amounts to a statutory exception to the rule that hearsay is inadmissible. A statement complying with s. 715.1 may be admitted for the truth of its contents. In R. v. Toten (1993), 14 O.R. (3d) 225 (C.A.), at p. 247, Doherty J.A. held that “[s]ection 715.1 permits resort to the prior consistent statements made by the complainant to assist the [trier of fact] in determining the complainant’s version of the relevant events and the reliability of the complainant’s in-court testimony”.
[16] Prior to trial, the parties agreed that S.W.’s June 27 and June 28, 2013 videotaped statements to the police met the admissibility criteria of s. 715.1 subject of course to adoption under oath at trial.
[17] In R. v. Osborne, 2017 ONCA 129, at para. 26, the court stated:
In ruling in favour of admitting Mr. Osmond’s statements into evidence, the trial judge relied on the Supreme Court’s decision in R. v. C.C.F., [1997] 3 S.C.R. 1183, in which the court concluded that under s. 715.1, a child witness adopts his or her video-recorded statement while testifying if the child recalls giving the statement and testifies that he or she was, at the time of giving the statement, attempting to be truthful: C.C.F., at paras. 35-41. Significantly, in C.C.F., the Supreme Court held that the adoption test in s. 715.1 does not require that the child verify the accuracy and contents of the statement based on a present memory of the events referred to in the video-recorded statement: C.C.F., at paras. 38-41.
[18] The test for adoption is a threshold reliability determination with the weight/ultimate reliability determination left to the trier of fact should the video statement be admitted: R. v. C.C.F., [1997] 3 S.C.R. 1183, at paras. 45-46; Toten, at p. 252.
[19] Apart from the statutory check on admission of a s. 715.1 video statement (“… unless the [court] is of the opinion that admission … would interfere with the proper administration of justice”), the admissibility of such evidence “is also subject to other general forms of judicial control over the admission of evidence” – a supervisory discretion to exclude evidence “where the demands of adjudicative fairness require exclusion”: Toten, at pp. 249-251.
[20] When questioned as to the circumstances of S.W. seeing the video evidence in court at the August 28, 2014 preliminary inquiry, the witness provided no direct response here indicating that she had made efforts in the interviews to tell the truth to the police. To the contrary, S.W. spoke of hallucinating and not being “all there” in her head.
[21] On the whole of the record, the proper administration of justice and the court’s common law discretion precluded substantive admission of the videotaped statements for a number of reasons including:
(1) Ms. Prihar, having dealt with S.W., over the years, was of the view that the complainant could give viva voce evidence at trial in support of the allegations. (2) Although the (un)availability of a complainant’s trial testimony as to the factual allegations is not an admissibility prerequisite for s. 715.1 evidence, it was obvious, before and after the lunch break, that S.W. was a witness in distress. The complainant’s demeanour radically changed as she was examined about the videotaped evidence – in tone of voice, physical reaction, facial expression, and communication of anxiety and reported lack of breath, there was progressive deterioration in her stability and an increasing risk to her likely cooperation with the trial process as a whole. (3) The threshold reliability of the June 27 statement was materially compromised by S.W.’s reference to hallucinating while being interviewed and to not being all there. Crown counsel noted the inappropriateness of attempting to seek admission of the June 28 statement segregated from the statement given only hours before. (4) As she appeared to focus on the pressure imposed by her attendance as a witness, the complainant expressed no clear adoption of the earlier videotaped evidence. (5) Apart from any residual concern about the informal approach made to S.W. during a court break, the totality of circumstances favoured restoring S.W.’s assistance to testify at trial and assuaging her manifest distress, while acknowledging the right of the parties to refresh memory or to impeach using the video statements, or for the making of any further applications.
[22] Ruling accordingly.