ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAVE EMMANUELLE BALONDO
Andrew Weafer, for the Crown
Michael Navarro, for the Applicant
HEARD: May 21, 2021
RULING ON ADMISSIBILITY OF COMPLAINANT’S VIDEOTAPED STATEMENT - S. 715.1 OF THE CRIMINAL CODE
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
R. maxwell j.
1The applicant is charged with one count of sexual assault contrary to s. 271 of the Criminal Code. Pursuant to s. 715.1 of the Criminal Code, the Crown applies to admit into evidence a videotaped statement of the complainant, M.T., given to Detective Taylor and Detective Constable Figlarz on May 23, 2019.
2On the application, M.T.’s videotaped statement was played and a transcript of the statement was provided to the court. No other evidence was presented on the voir dire. The Crown and defence jointly submitted a chart setting out the applicant’s objections (with references to line numbers within the transcript of M.T.’s statement) and the Crown’s position. For ease of reference, I have included as Appendix A to these reasons, counsel’s chart of objections and responses.
3Neither the Crown nor the defence made submissions on all of the points of objection, noted in the chart. They each rely on the chart effectively as a written submission. However, both the Crown and the defence made submissions on particular objections.
4For the reasons that follow, with some edits to the videotaped statement, the Crown’s application is granted.
Background
5It is alleged that on March 26, 2019, M.T. met the applicant at a subway station and took a bus to his home. Once at his apartment, they sat on the couch and began to engage in consensual intimate sexual touching and kissing. After a period of time, the applicant invited M.T. to join him on his bed. M.T. and the applicant sat on his bed, talked, used their phones intermittently and continued to engage in intimate touching and kissing. At some point, the applicant asked M.T. to “do it.” It is alleged that M.T. said “no” and that she wanted to wait another month before being more intimate with him. She repeatedly told the applicant “no.” It is alleged that the applicant pulled down M.T.’s pants and underwear, pulled down his own pants, and penetrated M.T.’s vagina with his penis. The applicant suddenly stopped after a period of time.
6The complainant pulled her pants back on and told the applicant she wanted to leave. The applicant followed M.T. to the bus stop, where M.T. boarded a bus and departed.
7On March 31, 2019, the applicant and M.T. exchanged text messages in which M.T. accused the applicant of sexually assaulting her and the applicant apologized.
8On May 23, 2019, M.T. came home from night school and told her father, godfather and aunt about the incident. M.T.’s father took her to 31 Division to report the incident, at which time arrangements were made for M.T. to attend 32 Division on May 25, 2019 to provide a videotaped statement.
9At the time of the incident and at the time of the videotaped statement, M.T. was 17 years old.
10The applicant was arrested on May 2