Court File and Parties
COURT FILE NO.: CNJ 9478 DATE: 2019-05-27 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant – and – C. C. Respondent
Counsel: Cynthia Jennison, for the Crown Dean D. Paquette, for the Applicant
HEARD: May 24, 2019
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE IDENTITY OF THE ACCUSED, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA
Reasons for Judgment S. 715.1
The Honourable Justice James W. Sloan
[1] This is an application by the applicant under sections 486.1(1), 486.2(1) and 715.1 of the Criminal Code of Canada. The parties consented to an order issuing, pursuant to sections 486.1(1) and 486.2(1).
[2] There was an alleged sexual assault which occurred between October 28, 2013 and December 15, 2013. The incident was first reported by the complainant on April 4, 2017, at Grand River Hospital. At that time the complainant’s interview with F&CS and Detective Allison was audio-recorded.
[3] A video recorded interview was conducted with Detective Allison on June 2, 2017.
[4] Section 715.1 creates a statutory exception to the hearsay rule for videotaped evidence and sets out four criteria, which must be met. In this case the accused takes the position that the recording was not made within “a reasonable time after the alleged offense”.
[5] The alleged incident took place before December 15, 2013 and the videotaped statement took place on June 2, 2017 which is at least 3 years & 5 ½ months later. At the time of the incident the complainant was 12 years old and is now 18 years old. In April 2017 she would have been almost 16 years old and the June 2, 2017 she would have been 16 years old.
[6] There is only one allegation of sexual assault.
The Crown’s Position
[7] There are two principal objectives of the section, (1) to create a record of what is likely the witnesses’ best recollection of the event and (2) to prevent or reduce the likelihood of inflicting further injury or trauma on complainant through participation in the criminal justice system.
[8] The Crown submits the video statement will be more complete and accurate because it is closer in time to the alleged offense and the video will demonstrate how the witness was questions as well as other gestures and facial expressions.
[9] She further submits, with respect to the second objective, that the use of videotaping decreases the trauma experienced by complainants as they will be subjected to fewer interviews thus decreasing the likelihood that they feel they are not being believed.
[10] She relies in part on the case of R. v. G.(S.), (2007), 221 C.C.C. (3rd), where the court held that a three-year delay was “within a reasonable time”.
[11] The Crown also relies on the case of R. v. Lamure, [2018] O. J. NO. 5341 where the court stated the following at paragraphs 7, 8 and 11:
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. 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.
In the present case, the reasons for the delay will 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 delay 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 this 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 to the police. Although the complainant did not specifically indicate why it took her so long, such a delay is not unusual.
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. Most of the cases dealing with unreasonable delay in making the video statement are concerned about young and very young witnesses. 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 statement, but in my view this evidence goes to the weight and not to admissibility.
[12] In the G.W. case relied upon by the defence there were already frailties in the complainant’s evidence as set forth in paragraphs 19 and 20 of that case. Those frailties do not exist in this case.
The Defence Position
[13] The defence submits that the two principal objectives the section 715.1 are: (1) to create a record of what is likely the witness is best recollection of the event and (2) to prevent or reduce the likelihood of inflicting further injury or trauma on the complainant’s through participation in the criminal justice system.
[14] The defences stated position is that the video statement was not made within a reasonable time after the alleged event.
[15] Assessment of what is a reasonable time involves considering several factors including, the reason for the delay and the impact of the delay on the child’s ability to recall the events.
[16] In this case, the complainant stated that she disclosed the alleged sexual assault while in hospital trying to recover from mental health issues. There is no allegation of a threat by the accused and no further explanation for the delay.
[17] In the case of R. v. P.S., [2000] O.J. No. 1374, (C.A.), Ontario Court of Appeal considered a two-year delay to be borderline, but reasonable. At the time of the alleged incident the complainant was 8 years old and at the time of trial 12 years old.
[18] In the P.S. case the Court of Appeal took into account the complainant’s timidity and inability to communicate because of fear and embarrassment, her relationship with the appellant (cousin) and her apparent victimization by her brother before and after the incident with the appellant (adding to her confusion and fear).
[19] In the current case there is no evidence of fear and because the accused and the complainant’s mother split up, she has not seen the accused since December 15, 2013. In addition there is no evidence of further victimization by anyone else that would cause confusion.
[20] In the G.(S.) case relied upon by the Crown, the complainant told her mother while the alleged assaults were happening, therefore making a contemporaneous complaint and further the complainant feared the accused because he has hit both her and her mother. None of those factors exist in this case.
[21] In the case of R. v. G.W., 2014 ONSC 507, [2014] O. J. No. 360, the court found that the delay of 3 ½ years made the videotaped statement inadmissible.
[22] In the Lamure case the court found that the delay was adequately explained because police conduct contributed to the delay.
[23] Therefore the defence submits that since no reason has been given for the delay and since the delay has been so long it favours exclusion of the video statement.
Findings
[24] The facts of this case are exceedingly simple. There is an allegation of one brief sexual assault.
[25] The complainant has been interviewed twice and testified at the preliminary hearing. In all likelihood she was further interviewed by the Crown prior to the preliminary hearing.
[26] She was 12 at the time of the alleged assault and unlike a much younger child would have a recollection of a traumatic event.
[27] With respect to the reasons for delay, it is not unusual for a victim of sexual assault to be reluctant in reporting the incident.
[28] One of the reasons for section 751.1 is to reduce the likelihood of inflicting further injury or trauma on complainant. This is a Judge alone trial and the defence will have the usual rights to cross examine the complainant on all of her evidence including the videotaped evidence.
[29] Under the circumstances of this case which as stated before has exceedingly simple facts, I find that the video recording was made within a reasonable time. I therefore allow the crown’s application.
James W. Sloan J.
Released: May 27, 2019