Court File and Parties
COURT FILE NO.: CR- 19-10000317 DATE: 20240319 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – TAPIWA KUZVIWANZA Respondent
Counsel: M. Cole, for the Applicant M. Di Sabatino, for the Respondent
HEARD: February 29, 2024
B. P. O’MARRA J.
RULING ON AN APPLICATION PURSUANT TO S. 715.1 OF THE CRIMINAL CODE
OVERVIEW
[1] The respondent faces charges on a seven-count indictment alleging sexual offences against two complainants, J.M. and K.B., in 2011 and 2012. The two complainants are siblings. K.B.’s pronouns are they/them. The respondent was in his late twenties when the offences allegedly occurred. At the time, he was the former boyfriend of the older sister of both complainants. The complainants were approximately 13 and 9 years old respectively at the time of the alleged offences.
[2] Both complainants reported the alleged incidents to police in July 2018. They both testified at the preliminary hearing in 2019.
[3] At the outset of this trial, the respondent reelected to be tried without a jury. Both complainants are available to testify at trial. The respondent consented to an order that both complainants testify from outside the courtroom.
[4] On July 5, 2018, K.B. provided a statement to police that was recorded on video. The video statement lasted 32 minutes, with 49 pages of transcript.
[5] The Crown applied to admit K.B.’s video statement into evidence pursuant to s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46. The Crown anticipated K.B. would adopt the contents of their statement in addition to their viva voce evidence at trial. The respondent opposed the application.
THE LEGAL FRAMEWORK
[6] The Criminal Code provides for the admissibility of this form of evidence in s. 715.1:
715.1 (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.
Order prohibiting use (2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).
[7] The admission of such evidence does not make the trial unfair or not public. It does not in any way affect the presumption of innocence. The section is designed to preserve an early account of the child’s evidence in order to assist in the discovery of the truth and to provide a procedure for the introduction of the child’s story into evidence: R. v. L. (D.O.), [1993] S.C.R. 419, at pp. 419, 444.
[8] In L’Heureux-Dubé J.’s concurring opinion in L. (D.O.), she outlined how the contents of such statements can be limited to conform to the laws of evidence. She also set out a number of factors for a trial court to take into account on such applications, at pp. 462-63:
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.
[9] In cases where there is conflicting evidence as to how useful the videotaped statement may be in providing an honest and complete account of the complainant’s story, the statement should be admitted unless the trial judge is satisfied that it could interfere with the truth-finding process: R. v. C.C.F., [1997] 3 S.C.R. 1183, at para. 52.
[10] There is a clear advantage to gathering evidence from a child as early as possible. The child’s evidence is gathered and preserved, many months and often years, before the trial is held: L. (D.O.), at p. 468.
[11] The reasonableness of the delay in gathering such evidence may depend on a number of factors which only a case-by-case analysis will be able to determine: L. (D.O.), at pp. 468-69.
[12] A two-year delay, or any amount of delay, is not necessarily “borderline”. The calculation of the delay alone will not determine what constitutes a “reasonable time” for the purposes of s. 715.1. Strict timelines stand in direct opposition to the nuanced and case-specific analysis called for in a reasonableness inquiry. The practical and recognized reality is that children will often delay disclosing abuse they have suffered, particularly sexual abuse involving a perpetrator who stands in a position of trust relative to the child: R. v. P.S., 2019 ONCA 637, 157 W.C.B. (2d) 480, at paras. 19-21. The reasons for delayed disclosure in sexual crimes are many, including, “embarrassment, fear, guilt, or lack of understanding and knowledge”: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.
ANALYSIS
[13] At the outset of this application, the parties properly focused on the issue of whether the video statement was made “within a reasonable time after the alleged offence”. The parties agreed that I should consider all the circumstances, including the evidence of J.M., who testified before the application was heard. The parties also agreed that approximately five and a half years had passed between the dates of the alleged offences and when the video statement was taken.
[14] The length of this delay obviously merits scrutiny. However, I am satisfied that in the particular circumstances the delay was not unreasonable and will not interfere with the proper administration of justice.
[15] J.M. testified that she and her sibling K.B. told their mother in 2012 that the respondent had sexual contact with both of them. J.M. testified that her mother did not believe them. At that time, K.B. was nine or ten years old.
[16] There were other tragic events within the family that ultimately led the two complainants to contact the police. Both complainants had been sexually abused by an older brother. That was what they initially told the police in July 2018. Both complainants were asked by police if there was anything else that had happened to them. That is when they provided information that implicated the respondent in events from several years before.
[17] Counsel advised this court that the older brother has been found guilty of sexually abusing the complainants.
[18] What more could K.B. have done in 2012 or shortly thereafter? They were nine or ten years old at the time. Their mother did not believe their report of being molested by the respondent. It can hardly be expected that at that age in those circumstances K.B. would or should have contacted the police or someone else in a position of authority (e.g., a teacher).
[19] The sordid nature of the allegation against their brother (since confirmed by a finding of guilty) in addition to the alleged acts of the respondent must be considered when assessing the delay. These incidents were personal and sensitive things for a child to mention to someone outside the family. This is especially so because both complainants were not believed by their mother.
[20] A key component of the proper administration of justice is that the accused be in a position to make full answer and defence. K.B. is now 21 years old. They will testify and be available for cross examination. The defence will have their transcript from the preliminary hearing as well as their video statement dated July 5, 2018 to test their reliability and credibility. I am satisfied that the defence will not be at any disadvantage in tactics or substance by the admission of K.B.’s video statement in addition to their testimony.
RESULT:
[21] The application is allowed.