Court File and Parties

Court File No.: 16-5085 Date: 2018-10-16 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Carson Lamure

Counsel: Hart Shouldice, for the Crown Matthew B. Day, for Carson Lamure

Heard: October 9, 2018 (Ottawa)

Reasons for Decision

Section 715.1 Application

Before: Parfett J.

[1] The Crown requests that the videotaped statement of the complainant be admitted into evidence pursuant to s.715.1 of the Criminal Code, R.S.C., 1985, c. C-46. Defence counsel opposes this request on the basis the statement was not made within a reasonable time after the alleged incident.

[2] Section 715.1 states,

(1) 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.

[3] This section is a statutory exception to the rule that hearsay is inadmissible. It is also an exception to the admission of prior consistent statements. [1]

[4] In the present case, the events that led to the allegation of sexual assault occurred sometime in the fall of 2013 when the complainant was 17 years of age. The complainant disclosed to her mother in November 2013 and her mother went to the police in January 2014 to advise them of the allegation. The police provided the complainant with a form with which to make a written statement. The complainant wrote the statement in March 2014, but waited until November 2014 to actually submit her written statement to police.

[5] The file then languished with the police. In the summer of 2015, the complainant contacted police to ask them what progress had been made on her file. Police then tried to contact the complainant, but they were unsuccessful. The matter languished again. In December 2015, the complainant became involved in another, unrelated, police matter. During that investigation, the complainant again asked police about the progress of the sexual assault file. In February 2016 – some two and a half years after the alleged misconduct – a videotaped statement was made to police by the complainant.

[6] The issue in this application is whether in the circumstances of this case, the videotaped statement was made within a reasonable time after the alleged sexual assault incident.

[7] In assessing whether a videotaped statement was made within a reasonable time, the court must examine the reasons for the delay and the impact the delay may have had on the complainant’s ability to accurately recall the events in question. [2] It is important that the concept of reasonableness in this context is not watered down to the point where the objective of this section – the admission of reliable statements – is lost. [3]

[8] In the present case, the reasons for the delay fall into two distinct categories: first, the complainant’s delay and second, the police delay. With respect to the complainant’s delay, I note that there are many reasons for delayed disclosure and that courts are reluctant to regard delay as necessarily impacting negatively on the complainant’s credibility or reliability. Each case must be assessed in its particular context. In the circumstances of this case, I would be reluctant to find the complainant’s delay in reporting the incident to police to be unreasonable. The complainant testified that it took her a considerable amount of time to write her statement and then decide to submit it to police. Although the complainant did not specifically indicate why it took her so long, such a delay is not unusual.

[9] The police delay is more problematic as it seems to have been caused by administrative neglect. However, once again I am reluctant to find the delay unreasonable when it had nothing to do with the complainant. She made more than one attempt to inquire about her file and it was the fault of the police that it took so long to further the investigation.

[10] Consequently, I find that the delay has been adequately explained.

[11] The other concern regarding delay is the impact it might have on the complainant’s ability to accurately recall events. The entire purpose of s. 715.1 is to ensure that the most accurate recollection is provided to the trier of fact. [4] Most of the cases dealing with unreasonable delay in making the video statement are concerned about young or very young witnesses. [5] In the present case, the complainant was 17 years old at the time of the alleged incident and I do not find the delay in this case is likely to have had a significant impact on the accuracy of her recollection of events. Both counsel have pointed to extraneous items that could either support or diminish the reliability of the complainant’s statement, but in my view this evidence goes to weight and not to admissibility.

[12] In all the circumstances, I find that the delay was not unreasonable and the Crown may lead the videotaped statement as part of the complainant’s evidence. Parenthetically, I note there is a mid-trial instruction that can be given to the jury with respect to the introduction of this type of evidence as well as a final instruction. Both will be provided to the jury in this matter.

Released: October 16, 2018 Madam Justice Julianne Parfett