R v. S. (J.), 2017 ONSC 6363

COURT FILE NO.: CR-15-30000565-0000

DATE: 2017-10-24

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R v. S (J.)

BEFORE: S.F. Dunphy J.

COUNSEL: L. Earle, for the Crown Applicant

S. Lyon, for the Respondent

HEARD at Toronto: October 23, 2017

VOIR DIRE RULING ON ADMISSIBILITY: S. 715.1 CRIMINAL CODE

[1] On this voir dire, the Crown seeks leave to introduce into evidence a video statement of the complainant made at least 6.5 years after the alleged incident underlying the charges against her father pursuant to s. 715.1 of the Criminal Code. This case requires me to consider whether exceptional circumstances exist that would permit me to find that the statement in question was made within a “reasonable time” of the incident as required.

[2] For the reasons that follow, I have decided to allow the Crown’s application. While the delay between the statement and the alleged offence in this case is indeed lengthy and exceeds the time found reasonable in most of the cases cited by the parties, the quality of the memory preserved in terms of detail is relatively high and the admission of the statement subject to the safeguards the trial process permits advances the goals of Parliament in enacting s. 715.1 of the Criminal Code without sacrificing the right of the accused to a fair trial.

Background and overview of evidence

[3] The accused faces one charge of sexual assault contrary to s. 271 of the Criminal Code and one charge of sexual interference with a child under the age of sixteen years contrary to s. 151 of the Criminal Code. The complainant S (M) is his daughter and, at the time of the alleged incident was living in his care and custody. The incident is alleged to have happened in Toronto between August 1, 2006 and February 1, 2008 when the complainant was very young: between four and five years of age.

[4] The complainant first mentioned the alleged incident to her foster mother on August 19, 2014 and the statement that is the subject-matter of this voir dire was given on August 28, 2014.

[5] It is clear that the statement given in 2014 was a traumatic and very difficult experience for the complainant. She was extremely withdrawn, clearly upset by the subject-matter and required long periods of time to collect herself before providing her answers to the questions asked. For present purposes, it is sufficient to note that she described in reasonably vivid detail an incident that occurred when she was much, much younger where her father had allegedly required her to perform an act of fellatio upon him.

[6] Between the time of the alleged incident (2006-2008) and the time of the first mention of it to another person (2014), the following agreed facts provide some additional context:

a. The complainant (and her siblings) were apprehended by aboriginal child welfare authorities on August 20, 2008 in relation to an entirely different investigation and she has been in foster care since that time; and

b. At the time of the alleged incident, she was living in the custody of her father, in a large household consisting of her father, his girlfriend at the time and a number of children of one, the other or both adults[^1].

[7] In connection with her apprehension by child welfare authorities in 2008, a video statement of the complainant (then age 6) was taken and was introduced into evidence on the voir dire under an agreement between Crown and defence.

[8] In the 2008 video statement, the complainant was asked a number of often very leading questions and a number of promises and representations were made to her that make the statement problematic. However, she was asked questions designed to encourage her to relate any concerns she may have had relating to possible sexual abuse by anyone (including her father) and she made no complaint at that time.

[9] The contrast between the demeanor of the complainant in the 2008 statement and the 2014 statement could not be starker. In the 2014 video statement, she spoke quietly and with extreme reluctance. In the 2008 video statement, a chipper and chatty six-year old spoke with apparent ease.

[10] The 2008 statement is of course a prior inconsistent statement of the complainant. However, it is a prior inconsistent statement that she has not been questioned about and of course has had no opportunity to explain. As well, it is a statement displaying a number of odd features that raise quite significant questions that, at this early stage of things, are necessarily unanswered.

Issues to be decided

[11] The issue to be decided on this voir dire is whether the August 28, 2014 video statement of the complainant ought to be admitted into evidence pursuant to s. 715.1 of the Criminal Code.

Discussion and analysis

[12] Section 715.1 of the Criminal Code is a remedial provision. It permits the introduction into evidence of a video recording made “within a reasonable time after the alleged offense” if certain conditions are satisfied. It was described by Lamer J. in R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419 as a response to “the dominance and power which adults, by virtue of their age, have over children” and is designed to “accommodate the needs and safeguard the interest of young victims of various forms of sexual abuse” (at para. 1). In her concurring judgment, L’Heureux-Dube J. expanded upon this, describing the purposes of s. 715.1 of the Criminal Code as being (i) “to preserve an early account of the child’s complaint in order to assist in the discovery of truth and provide a procedure for the introduction of the child’s story into evidence at trial” (ii) “to diminish the stress and trauma suffered by child complainants as a by-product of their role in the criminal justice system”; and (iii) “to balance these objectives with the rights of an accused to a fair trial” (at para. 34- 35).

[13] The function of a voir dire into the admissibility of a video statement under s. 715.1 of the Criminal Code is not to determine issues of credibility or weight. Rather it is to consider whether, having regard to the requirements of the provision and a consideration of the relevant factors, the admission of the statement would operate unfairly to the accused. The Supreme Court in R. v. C.C.F., 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 listed a number of such factors including:

a. The form of question used by any other 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. Whether other out-of-court statements by the complainant have been entered;

f. Whether any visual information in the statement might tend to prejudice the accused (for example, unrelated injuries visible on the victim);

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

h. Whether the trial is one by judge alone or by a jury; and

i. The amount of time that has passed since the making of the recording and the present ability of the witness to effectively relate to the events described.

[14] The present case is something of a hybrid. While I am required to consider the factors listed by Cory J. in C.C. F. when determining whether this is one of the “relatively rare” cases where the discretion to exclude ought to be exercised, the primary issue to be considered is whether the statutory condition of “within a reasonable time after the alleged offense” is satisfied on the facts of this case. I cannot make a determination of reasonableness in a vacuum. Many of the factors reviewed by Cory J. in C.C.F. are also factors that go to whether the recording was made within a reasonable time after the alleged offence. A consideration of these factors is thus an appropriate starting point in my analysis of this application.

[15] With very minor exceptions, the form of questions used by the two persons appearing on the recording (a police officer and a child welfare worker) were non-leading questions asked sensitively and patiently designed to enable (and require) the complainant to tell her own story in her own words. Both persons present were professionals without any identified interest in the statement given beyond eliciting the truth. The quality of the recording – both video and audio – was high even if the complainant’s voice was upon occasion very faint. There was little to no inadmissible evidence elicited. There was no particular visual information that might appear prejudicial to the accused. The matter is proceeding by judge alone in any event so there will be every opportunity for the defence to ensure that any prejudicial features of the recording are appropriately qualified or edited. Three years have passed since the statement was given. Even if the recorded statement was more than six years after the offence alleged, it is unquestionably a better-preserved record of the recollections of the complainant than the evidence she will now be capable of giving after the passage of a further three eventful years between the age of twelve (then) and fifteen (now). The quality of recollection displayed in the statement is certainly patchy in some areas, but contains a number of quite significant and vivid details suggesting a reasonably good quality of recollection at that time at least. These included a detailed description of the apartment the family then lived in (for only a relatively brief period of her life), their living arrangements, who was home at the time of the incident, the way her father was dressed, etc.

[16] I have considered the matter of the prior inconsistent statement (the 2008 recorded statement). In my view, this statement is an essentially neutral factor for the purposes of this voir dire. I cannot conclude from a review of that statement alone that the introduction of the 2014 statement would work an injustice to the accused and his right to a fair trial. It is a statement of a six year old girl that has sufficient unusual features and red flags about it as to require careful handling. The weight to be attributed to this prior statement and its relationship to the 2014 statement can best be assessed after the complainant has had an opportunity to testify about it and provide her own explanations which can themselves be tested. It is a factor of only limited weight in the analysis I must undertake at this juncture.

[17] The minor exceptions regarding leading questions I adverted to above include a leading question by the investigating police officer who asked the accused to confirm her age as thirteen whereas she was actually three months from her thirteenth birthday. I attach no particular significance to this exchange. It may or may not be an exchange providing evidence going to credibility and weight of the statement overall – that is a question for later. It provides little information about whether the statement as a whole ought to be excluded in order to safeguard the right of the accused to a fair trial. It was a peripheral issue unrelated to the complaint itself and the complainant simply nodded assent to a leading question posed by a person in authority that she may have perceived to be somewhat flattering. At other points in the recording, she did not hesitate to correct the examining officer and the examining officer was scrupulously careful to eschew any suggestion of unfair or leading questions on material matters.

[18] The Crown asks me to attach weight to the following additional factors:

a. The aboriginal status of the complainant and the strong societal interest of accommodating her need to provide her evidence in a less traumatic fashion;

b. The fact that the witness will be available to be cross-examined;

c. The trauma she has suffered not only arising from the incident itself, but from her subsequent history of being in foster care since 2008 and becoming a Crown ward;

d. The fact that the accused was her father and principal care-giver (her biological mother having left at the age of four).

[19] The defence responds that there are no extraordinary features present in this case. The fact that the complainant made no mention of the present complaint when questioned in 2008 is a factor to take into account in determining whether the statement was given within a reasonable time after the alleged offence. The delay between the alleged event and the statement is far beyond what the jurisprudence has heretofore found reasonable and the Crown is, in effect, asking me to stretch the envelope in this case. The defence urges upon me the analysis of the case law performed by Quigley J. in R. v. J.M, 2016 ONSC 535 and K.C. Campbell J. in R. v. D.T., 2017 ONSC 1953.

[20] It is clear that Parliament has not fixed a bright line for how long between the recording of a statement and the alleged offence can be considered to be a “reasonable time”. It has been said that “the boundaries of reasonableness are indeed almost as variable as the historic boundaries of Poland”[^2]. In a case such as this, I have some sympathy for the sentiment expressed. Each case will have to be determined on its own facts and having regard to the circumstances peculiar to it.

[21] That being said, I am required to give meaning to the words Parliament has used and to apply them to best secure the goals Parliament is seeking to achieve. Clearly some delays will be so long as to be unreasonable even if admitting the statement would reduce the trauma upon the witness interacting with the justice system. Parliament has sought to strike a balance between the interest of society (and of the complainant) in deterring sexual abuse and minimizing the harm the trial process can impose upon victims with the strong social interest in ensuring that the accused receives a fair trial. My task is thus to undertake an analysis of the impact of the delay from the time of the alleged offence upon the recorded recollection in the context of this particular case. Where the lapse of time – for whatever reason – is such as to impact adversely upon the right of the accused to a fair trial in ways that cannot adequately be compensated for in the trial process, my duty is to exclude the statement. It is also important that this exercise is not be confused with the assessment of credibility or weight. At this early stage of the trial and without having heard from the witness herself, I am in no position to undertake that task.

[22] Six or more years since the underlying events is a long time. Memory is a frail creature at the best of times, but its frailties become even more acute when the evolution of consciousness through childhood is added to the equation. Children’s memories may fade faster than those of adults: L.(D.O.) per L’Heureux-Dube J. at para. 76. Add to the mix the trauma of years of life in foster care and the turbulence of early adolescence and we are straying farther and farther from Parliament’s goal of preserving an early account of the child’s complaint. There are thus strong grounds for being wary of accepting a statement produced so long after the fact, particularly given the age of the complainant at the time of the alleged offence compared to her age at the time of the statement.

[23] On the other hand, I must also bear in mind that victims of abuse, including victims of child sexual abuse, often do not disclose it immediately and may only do so with many years of delay: L.(D.O.) per L’Heureux-Dube J. at para. 75. In the context of this case, the circumstances highlighted by the Crown – her aboriginal status, her age at the time of the alleged offence, the fact that the accused is her father and was her custodial parent after her biological mother left, the fact that she was in foster care and became a Crown ward very soon after the alleged offence – combined with the trauma of the event alleged provide powerful reasons for accommodating the witness in a reasonable fashion and provide context for understanding the delay in confiding her story to an adult or person in authority. I am also mindful of the comments of Doherty J.A. in R. v. Toten, 1993 CanLII 3427 (ON CA), 14 O.R. (3d) 225 at para. 24-26 where he discusses the confusion, intimidation and trauma that a young person can feel in testifying in court.

[24] The potential harm of admitting a statement as old as this one is substantially mitigated by a qualitative analysis of the statement itself. The story emerged quite fully in the words of the complainant and did so with a depth of detail sufficient to provide at least an initial level of confidence that time had not decayed the memory unduly at the time the statement was taken.

[25] It must be underlined that at this early stage I have not reached and am not called upon to reach any conclusions, even tentatively, regarding weight or credibility. These will be matters to be delved into as the evidence at trial unfolds. The witness has yet to adopt her statement of course. She will be subjected to cross-examination and the matter of the prior inconsistent statement can be explored further.

[26] The tools available to the accused to question the credibility of the complainant and the weight to be attached to her statement at trial remain quite sufficient to ensure fairness notwithstanding the delay in recording the statement after the alleged offence.

Disposition

[27] In my view, the balancing of factors that Parliament has required me to undertake favours admission of the statement and the granting of the Crown’s application. I so order.

S.F. Dunphy J.

Date: October 24, 2017

[^1]: I have anonymized details where possible to preserve confidentiality.

[^2]: Per voir dire decision of Scollin J. quoted by L’Heureux-Dube J. in L. (D.O.) at para. 73.