COURT FILE NO.: CR 21- 615 DATE: 20230413
Superior Court of Justice - Ontario
RE: R. v. Thomas Doucet
BEFORE: C. M. SMITH J.
COUNSEL: Deirdre Bryant, Counsel for the Crown Lawrence Forstner, Counsel for Mr. Doucet
HEARD: March 13, 2023
Endorsement on Crown’s Application Under S. 715.1 of the Criminal Code of Canada
Background
[1] Mr. Doucet is charged with sexual assault and sexual interference. The complainant is Ms G.B., who was eight or nine years of age at the time of the alleged incident, which is said to have occurred sometime between May 1, 2027, and September 30, 2017.
[2] G.B. did not disclose the allegations until September 2021 when she advised some friends at school, and her school principal, following an incident involving another student.
[3] G.B. gave a video statement describing the incident in question to police September 27, 2021.
[4] The Crown seeks an order under s. 715.1 of the Code for the admission of that video statement.
[5] The video in question was played during the hearing of this application.
[6] The respondent on the application, Mr. Doucet, states in his factum that “This hearing and its timing were at the request of the Respondent to address threshold statement reliability, under the ‘within a reasonable time’ framework in the relevant caselaw. The defence does not contest the other statutory pre-conditions to the admission of the video statement.”
The Allegations
[7] The complainant and her family are neighbors of Mr. Doucet and his family. Sometime between May 1, 2017, and September 30th, 2017, there was an occasion when both families were socializing together at Mr. Doucet's home.
[8] At the end of the evening G.B. stayed at the Doucet home for a sleepover. She slept in a sleeping bag on the floor of the living room next to a couch. She was wearing “onesie” style pajamas. Mr. Doucet stayed in the room to watch TV after the complainant fell asleep.
[9] The complainant alleges she awoke during the night to find Mr. Doucet was moving her. She alleges Mr. Doucet undid her sleeping bag and her pajamas, placed his hand on her chest and moved it down her body, ultimately touching her vagina for approximately 30 seconds. The complainant says Mr. Doucet then did up her pajamas and folded the sleeping bag back over her. The incident is said to have lasted 30 seconds.
[10] The complainant did not tell anyone of her complaint until September of 2021. She explained she did not disclose the incident when it happened because she was embarrassed, because she was young, and because she did not really understand what had happened.
Positions of the Parties
The Crown
[11] The Crown agrees it has the burden of proof to establish the threshold reliability of the complainant’s video statement at this stage on a balance of probabilities only.
[12] The Crown suggests the various preconditions to admission set out in s. 715.1 have all been met or agreed, with the exception of whether or not the video recording was made within a reasonable time after the alleged offence.
[13] The Crown argues the issue of whether the video was made within a reasonable time should be determined on a case by case basis and should take into account the fact children are known to delay reporting such incidents for a multitude of good reasons.
[14] The Crown also suggests the Court must consider the reasons for the delay, and the impact, if any, on the complainant's ability to accurately recall events. Further, while a long delay may weaken the impact of a video recollection, such is a matter of weight not admissibility.
The Defence
[15] The defence “wholeheartedly endorses” the notion that children often delay reporting sexual assaults.
[16] The defence is very clear in its assertion that it does not believe the other incident at the school, which apparently caused the complainant to disclose her own complaint, ever took place, “nor that the alleged victim told the principal.”
[17] The defence queries why the principal of the school was not interviewed to confirm the fact of disclosure by the complainant, particularly when that disclosure is said to have occurred in the midst of another incident involving inappropriate touching by another student.
[18] The defence theorizes “that the supposed ‘delay in reporting’ is part of the fabrication that explains this case.” It is the defence submission that “generic, victim friendly explanations, should not be given credence” in the determination of an application of this kind without first being subject to scrutiny.
[19] The defence submits an application of this kind “should not be a trojan horse for presuppositions or stereotypical assumptions about the goodness of complainant’s mothers and fathers, or other conceptual stand-ins for the trustworthy factual matrix that must exist to establish threshold reliability for admission of the child's police statement.” (original emphasis)
[20] The defence also takes the position that while the complainant’s allegations are fabricated and false, the fact that Mr. Doucet had the opportunity to commit the offence alleged has never been denied.
[21] With respect to the impact of the delay on the complainant's ability to accurately recall events the defence concedes “there is no indication that any memory loss has taken place.”
[22] The defence contends that Mr. Doucet is an “unfortunate affable neighbor that moved in nearby and got ensnared in this toxic system.” In contrast, the defence characterizes the complainant’s father as “an exploitative alcoholic, narcissist who bullies friends into drinking and triangulates others against him to prop up his own fragile identity.” The defence goes on to say the people closest to [the complainant’s father] “led by his cunning and manipulative alcoholic wife, by need, are codependent, paranoid, survivalists who will do whatever might give them momentary advantage in the highly predatory, anti-social environment in which they are trapped.”
[23] The defence submits the length of time and frequency of the offence is minimal, having lasted at most some 30 seconds on only one occasion.
[24] As for the seriousness of the offence, the defence describes it as a brief touching while at the same time acknowledging there is no such thing as a trivial or minor sexual offence.
[25] The defence also suggests external factors at the time the statement was made may have negatively impacted the reliability of the statement. In particular, the defence submits the complainant had a number of discussions at the time with her friends, that she was affected by the “Women’s Lives Matter” campaign, that her principal told her she herself had experienced a similar situation and regretted not telling her own mother, and that her brother's girlfriend may have influenced her thinking.
[26] With respect to the question of whether the statement was made within a reasonable time, the defence argues the onus to prove the statement was made within a reasonable time is on the Crown, there being no onus on the accused to prove there was an unreasonable delay. The defence also submits that lack of evidence of an unreasonable delay does not mean the video was in fact made within a reasonable time.
The Relevant Legal Principles
Statutory
[27] The relevant statutory authority is set out in s. 715.1 of the Criminal Code of Canada which reads as follows;
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.
[28] This section creates a statutory exception to the hearsay rule. It provides that video recorded evidence is admissible when it meets the following criteria;
- the victim or witness was under the age of 18 at the time the offences are alleged to have been committed;
- the video describes the acts complained of;
- the victim or witness adopts the contents of the recording while testifying and is available for cross examination; and
- the recording was made within a reasonable time after the alleged offence.
[29] This section is considered to be a manifestation of the truth-seeking function of courts. The Supreme Court Canada has held that “the goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favorable to eliciting the truth”: see R. v. Levogiannis, at para. 13.
The Caselaw
[30] The intent of the section is to create a record of the best recollection of the witness of the event in question, and to reduce or minimize the stress on complainants from participating in the criminal justice system. It is also believed that video evidence is likely more complete and accurate than might be the case where the evidence is not given until trial, the atmosphere in which the videotaped statement is taken is typically less threatening than a courtroom, and last, the videotape provides the trier fact with an opportunity to consider both the witness’ demeanor and the nature of the questions asked: see R. v. C.C.F..
[31] At the admissibility stage the Court's concern is with threshold reliability, not ultimate reliability. Threshold reliability involves a consideration of whether the particular hearsay statement has sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating its truth. Ultimate reliability determines what use the trier of fact can make of the admitted hearsay statement including what weight to attach to it: see R. v. R.A.H., [2017] P.E.I.J. No. 10 at para. 23.
[32] The onus is on the Crown to prove the videotaped statement was taken within a reasonable period of time which must be proved on a balance of probabilities: see R. v. G.S. (2007), 221 C.C.C. (3d) 439.
[33] The issue of whether statements are taken within a reasonable time of the offence is an issue that can only be determined on a case-by-case basis, as young people have been found to delay reporting such incidents for any one of a number of reasons: R. v. D.O.L..
[34] The purpose of s. 715.1 is to deal with the testimony of young people in a supportive, fair, and balanced way. Given the inescapable fact that young people delay reporting incidents of this nature for many reasons, typically including such things as embarrassment, guilt, lack of understanding, or fear, it is simply not appropriate to do anything other than consider the issue on a case-by-case basis. To simply compare and contrast the length of time in one case against times found reasonable or unreasonable in other cases is to miss the point: see R. v. P.S., 2019 ONCA 637, at para 19-22.
[35] A long delay may go more to the question of weight rather than to the question of admissibility: see R. v. M.(S.), (1995), 1995 ABCA 198, 98 C.C.C. (3d) 526 (Alta. C.A.).
[36] The Court in R. v. R.A.H., supra, suggested the following list of factors to consider when determining whether a statement has been given within a reasonable time:
- the age of the child
- the relationship of the child to the accused
- the length of time and frequency of the offence;
- the seriousness of the offence;
- any developmental stages which the child may have gone through since the offence;
- whether anything may have happened during the time since the offence which may have influence the statement or negatively impacted the reliability of the statement.
Application of the Relevant Legal Principles to This Case
[37] In my view, the expressed concerns of the respondent in this matter about the circumstances surrounding the complainant's initial disclosure of her complaint, what may have motivated her disclosure, and his characterization of the various parties, either relate to ultimate reliability or are simply inappropriate.
[38] I find the six step test suggested by the Court in R. v. R.A.H., supra, to be a convenient framework for the consideration of the “within a reasonable time” issue.
(i) Age of the child and the impact of the delay on her ability to recall the events
[39] The complainant was nine years of age when the alleged incident is said to have occurred, she was 13 when she disclosed her complaint, and she will be 14 when the trial occurs. She is of a young age, but as the respondent observed, “not so young as to demonstrate obvious problems with memory.”
[40] The respondent has also observed that the complainant remembered when the first statement was given with clarity when she testified at the preliminary inquiry, there having been no indication that memory loss has taken place.
[41] Given that is the case, I find the age of the complainant, and the impact of the delay in disclosing on her ability to accurately recall events are not significant factors in this analysis.
(ii) Relationship of the child to the accused
[42] The complainant and her family are friends with the respondent and his family. The complainant attends school with the respondent’s daughter. They are close friends and participate in a reading program together. The complainant's family lives down the street from the respondent’s family. The complainant is obliged to walk past the respondents home regularly.
[43] Given the allegations made, and the ongoing criminal proceeding they lead to, the fact the parties reside close to one another makes for an awkward situation for all involved.
[44] The respondent suggests the complainant behaves inappropriately when she passes the respondent’s home and accuses her of upsetting his leaf bags. The respondent is troubled by the fact the complainant spends time with his daughter as part of the reading program at their school. It would appear the respondent complained to the police and the CAS about such things and is frustrated by the fact there was little, if any, response. Counsel for the respondent opines in his materials that this behavior of the complainant is “NOT NORMAL” (original emphasis), and claims such behavior is “indicative of an entitled, predatory attitude, not even close to the normal range of human behavior.”
[45] In my view such comments are nothing more than an attack on the character of the 14-year old complainant. They are not the least bit probative of, or relevant to, the question of whether or not the video statement was made within a reasonable time.
[46] In any event, the complainant and respondent know each other as a result of the relationship between their respective families. While the respondent suggests there is a considerable amount of enmity between the families, there is nothing before me to suggest or support the notion that the complainant has fabricated her complaint against the respondent as a result of that enmity, or made it as a result of undue influence by her family.
(iii) Length of time and frequency of offence
[47] The alleged touching is said to have lasted no longer than 30 seconds and occurred only once.
[48] The fact there was only one brief incident tends to suggest the complainant’s recollection of the incident may be more clear than might be the case when there is a series of incidents. The impact of the passage of time on her memory appears to be minimal.
(iv) Seriousness of the offence
[49] As the respondent acknowledges, there is no such thing as a trivial or minor sexual offence. The respondent also notes this case fortunately does not involve complications caused by multiple victims, multiple repeated offences, escalating offending, coercion, or other such complicating factors. Rather, it involves an allegation of approximately 30 seconds of inappropriate touching, being a single, discrete event. It would likely be easier to remember the details of such a discrete event.
(v) Any developmental stages the child may have gone through since the alleged incident
[50] Neither party points to any particular developmental stages the complainant went through between the alleged incident and the time of her disclosure which might be thought to have affected her ability to recall. The respondent acknowledges there is no apparent developmental delay and indicates the complainant’s memory appears to have improved in some ways.
(vi) any evidence that something might have happened during the time period which may have influenced the statement or negatively impacted the reliability of the statement
[51] It is suggested the complainant had a number of discussions with her friends before she disclosed her complaint to police. It is also suggested she may have been affected by the “Women's Lives Matter” movement which was prominent at the time in question. It also suggested the principal told her she herself had experienced a similar situation when she was young and regretted not having told her mother about it. There are also allegations of enmity developing between the two families during the four year hiatus.
[52] The question of whether those factors influenced or shaped the complainant’s allegations is more properly the subject of questioning and exploration during the trial phase of this matter. In my view, such factors do not come into play when considering whether or not the statement given to police was made within a reasonable time of the incident. Such factors do not go to threshold reliability but rather to ultimate reliability.
Conclusion
[53] Having entered into the analysis suggested by the Quebec Court of Appeal in R. v. Proulx, supra, I find there is nothing in the circumstances before me that militates in any significant way against a finding that the complainant’s statement rises to the admittedly low bar of threshold reliability.
[54] On the evidence before me, the fact the complainant did not disclose her complaint for some four years cannot be said to have negatively affected her ability to recall, or in any other way affected or shaped her recollection of the events behind her allegations. The fact is children often delay reporting incidents of this nature for any one of a number of reasons, usually involving uncertainty, ignorance, embarrassment, or fear. That appears to be the case here.
[55] As noted by the Court in R. v. P.S., 2019 ONCA 637, these issues must be determined on a case by case basis, there being little utility in simply comparing the number of years that have been found to be reasonable in other cases. In this particular case there is no evidence tending to suggest anything happened during the four year period of delayed disclosure that affected the complainant’s ability to recall the incident. While the fact of any delay in resolving matters of this nature is regrettable, I cannot say that the passage of four years between the time of the alleged incident and the complainant’s disclosure is a significant factor. It would appear the complainant chose not to disclose for some of the usual factors, including uncertainty and embarrassment. That is unfortunate but it is not unreasonable. I cannot therefore say that the passage of four years is unreasonable in the circumstances of this case.
[56] The statement was made by the complainant at the urging of her school friends and her principal. There is no evidence to suggest her parents coached her or prompted her to make the complaint. The statement was taken by police in a soft interview room using open ended questions. The complainant appears reasonably comfortable with the situation and gave her account of events in a straightforward manner. The sound and video quality is generally satisfactory. These are all indicia of reliability which will serve to provide the trier of fact with a satisfactory basis for evaluating the truthfulness of the statement.
[57] I therefore find that admission of the videotape statement of the complainant would not interfere with the proper administration of justice. It is admissible at the instance of the Crown for use in accordance with the provisions of section 715.1 of the Code.
C. M. Smith J. Date: April 13, 2023