DATE: 2019-05-16 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Tiffany Boisvert, for the Applicant, Crown Applicant
- and -
A.K. Neil J. McCartney, for the Respondent Respondent
HEARD: March 21, 2019 at Thunder Bay, Ontario Madam Justice B. R. Warkentin, R.S.J.
Reasons on Section 715.1 Application
WARNING AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
[1] The Respondent is charged on two indictments with certain sexual offences as against A.K. who was between the ages of seven and thirteen when the alleged offences occurred. The offences include touching and counselling to touch for a sexual purpose someone under the age of 16 years contrary to ss. 151 and 152 of the Criminal Code, R.S.C. 1985, c. C-46; sexual assault contrary to s. 271 of the Code and unlawful confinement contrary to s. 279(2) of the Code.
[2] The Crown seeks to enter the video statements of the complainant, A.A., dated April 18, 2017 and May 10, 2017, as a portion of her evidence in chief in the trial of the Respondent pursuant to s. 715.1 of the Code, if she adopts the contents of the video statements at trial. The Crown noted that there were some leading questions within the video statements and those portions would be redacted. She also noted that in the event the video statements could not be altered, the Crown would ask the court to disregard those portions of the video statements that contained the leading questions.
[3] The Respondent objects to the use of the video statements as part of A.A.’s evidence on the basis that the video statements were not made within a reasonable time of the alleged offences.
History of the Video Statements
[4] A.A. was born in May 2001. The charges against the Respondent include allegations of sexual offences that are alleged to have occurred between October 1, 2008 and December 31, 2014, when A.A. would have been between 7 and 13 years of age.
[5] A.A. first disclosed the allegations of sexual assault on March 4, 2017 to a friend and on that friend’s advice, A.A. informed her mother about the sexual assaults on April 14, 2017.
[6] On April 17, 2017, A.A. reported that she had been the victim of sexual assault by the Respondent to the Thunder Bay police. On April 18, 2017 and May 10, 2017, A.A. provided video statements to the Thunder Bay Police in which she allegedly recounted five separate incidents of sexual assault committed by the Respondent. In April 2017, A.A. was 15, about to turn 16.
[7] The trial is scheduled for June 2019. A.A. will have just turned 18.
Purpose of s. 715.1 of the Code
[8] Section 715.1 of the Code permits video-taped statements to be entered as a portion of the evidence of the complainant if the following four factors are met:
a) The complainant must have been under 18 years of age at the time the offence is alleged to have been committed; b) The videotaped recording must have been made within a reasonable time after the alleged offence; c) The complainant or witness must describe the acts complaint of; and d) The complainant or witness must adopt the content of the video while testifying.
[9] Even if these requirements have been met, the presiding judge has the discretion to refuse to admit the video recording if admitting it would interfere with the proper administration of justice.
[10] The purpose of s. 715.1 was best described in the Supreme Court of Canada cases of R. v. L. (D.O.), 1993 SCC 46, [1993] 4 S.C.R. 419 and in R. v. F. (C.), 1997 SCC 306, [1997] 3 S.C.R. 1183 where the court, in both instances, concluded that although children may have clear and accurate memories at the time of the occurrence, children’s memories may fade faster than adults. (page 468 in L. (D.O.) and para. 19 in F. (C.)). The primary goal of s. 715.1 is the creation of a record of what is probably the best recollection of the event (F.(C.) at para. 21).
[11] Even if the Crown can show that the videotape may be admitted on the formal requirements under s. 715.1, the video recording must still conform to the rules of evidence. L'Heureux-Dubé J. explained in L. (D.O.), at para. 67:
67 In a case where the protection of s. 715.1 is called upon, the child victim must testify at trial and attest to the truth of the statements made earlier as recorded by videotape. The child may then be subjected to cross-examination on the contents of the taped evidence and the making of the tape. In addition to the child adopting all or part of her prior statements, other limitations exist in that the videotape will only be admissible for a victim under 18 years of age and the video must be made within a reasonable time. However, even before the videotape may be admitted, a voir dire must be held to review the contents of the tape and to ensure that any statements made in the videotape conform to the rules of evidence. Any statements which are in conflict with rules of evidence may be expunged from the tape. There are a number of factors which the trial judge could take into account in exercising his or her discretion to exclude a videotaped statement:
a) The form of questions used by any other person appearing in the videotaped 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) The ability to eliminate inappropriate material by editing the tape; f) Whether other out-of-court statements by the complainant have been entered; g) Whether any visual information in the statement might tend to prejudice the accused (for example, unrelated injuries visible on the victim); h) Whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant; i) Whether the trial is one by judge alone or by a jury; and j) The amount of time which has passed since the making of the tape and the present ability of the witness to effectively relate to the events described.
[12] The burden is on the Crown to demonstrate on a balance of probabilities that the videotaped statements meet both the rules of evidence and the formal requirements of s. 715.1: R. v. H. (R.A.), 2017 PECA 5, 348 C.C.C. (3d) 248 at paras. 27 and 28; R. v. G. (S.), (2007), 2007 ONSC 20779, 221 C.C.C. (3d) 439 (ONSC), at para. 13.
Analysis and Conclusion
[13] At issue in this application is whether the video statements were made within a reasonable time after the alleged offences.
[14] The offences are alleged to have occurred over a period of approximately six years ending sometime in 2014, approximately three years prior to the disclosure.
[15] In this voir dire, the only portion of the video statement of A.A. relied upon by the Crown were approximately four minutes of the video statement of April 18, 2017 where A.A. described when the last alleged sexual assault occurred and her reason for waiting three years from the sexual assaults to report them.
[16] A.A. claimed the reason she did not disclose the alleged sexual assaults until her disclosure to a friend in March 2017 was because the Respondent had told her not to tell anyone. In addition, the Respondent is the uncle of A.A.’s mother with whom A.A.’s mother was very close. A.A. did not disclose the sexual assaults to her mother because she did not want to hurt her mother.
[17] No other portions of the transcript from the video statement of April 18, 2017 were played nor was the May 10, 2017 statement played in the voir dire. There were no witnesses called to demonstrate that the other factors in s. 715.1 were met or that the statements would otherwise be admissible, although the full transcript of the April 18, 2017 video statement was provided to me.
[18] I am left in a difficult position. A delay of three years may be acceptable in the circumstances described by A.A.; that she did not report earlier because she had been told by the Respondent not to tell anyone and she did not want to hurt her mother. I note that the case law provided by both the Crown and defence suggest that a delay of three years may be acceptable depending on the circumstances of the case, including the reasons for the delay and eventual reporting.
[19] However, the purpose of a voir dire is not only to ascertain whether the formal provisions of s. 715.1 are satisfied, but also to ensure the video statements conform to the rules of evidence. F. (C.C.) at para. 51.
[20] As the trial judge, I am the gatekeeper of what may be admitted into evidence. It is the responsibility of this court to ensure that the evidence sought to be received is admissible. Crown counsel has acknowledged that parts of the videotaped statements contain leading questions.
[21] Without having had the opportunity to view the entirety of the videotaped statements, I am unable to ascertain whether those statements conform to the rules of evidence and whether the statements meet all the criteria as set out in s. 715.1. I am therefore unable to grant the Crown’s application to admit the videotaped statements of A.A. under s. 715.1 on the basis of the evidence presented in the voir dire.
“original signed by” Madam Justice B. R. Warkentin, R.S.J.