Court File and Parties
COURT FILE NO.: CR-21-00101447 DATE: 2024/03/27 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HIS MAJESTY THE KING, Applicant AND: R.D., Respondent
BEFORE: Gibson J.
COUNSEL: Lindsay Lubberdink, Counsel for the Crown/Applicant Jordan Drexler, Counsel for the Respondent
HEARD: March 15, 2024
Publication Restriction Notice
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainant and the accused may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Endorsement
[1] The Respondent R.D. (“the Respondent”) is charged with three counts of sexual interference contrary to s.151 of the Criminal Code, three counts of sexual assault contrary to s.271 of the Criminal Code, and one count of invitation to sexual touching contrary to s.152 of the Criminal Code. It is alleged that the Respondent forced sexual activity on the Complainant, N.W., while he lived in the same household with N.W. and her mother. The abuse is alleged to have taken place when the Complainant was approximately six years old. The Complainant is now 18.
[2] The Defence has indicated that it will consent to the Complainant testifying from outside the courtroom by Zoom from British Columbia where she now resides, pursuant to s.714.1 of the Criminal Code, so long as steps are taken to verify that that environment in which she testifies is appropriate. The Crown has undertaken to liaise with authorities in B.C. to assure that this is so.
[3] The Defence has also agreed to the admissibility of evidence regarding certain acts of prior discreditable conduct.
[4] On January 10, 2020, when she was 13, the Complainant described the allegations in an audio and video recorded statement to Constable Seguin of the RCMP in Surrey, B.C. The Complainant is now 18, and the mother of a young child.
[5] The Applicant seeks a ruling admitting this video statement into evidence at trial, pursuant to s.715.1(1) of the Criminal Code. The Respondent resists the request.
[6] Section 715.1(1) of the Criminal Code creates a statutory exception to the hearsay rule. It provides that video recorded evidence is admissible where:
a. The victim or witness was under the age of 18 at the time the offence is alleged to have been committed; b. The video recorded statement was taken within a reasonable time after the alleged offence; c. In the statement, the witness describes the acts complained of; and, d. The witness, while testifying, adopts the contents of the video recorded statement.
[7] On the voir dire concerning this issue, I viewed the video recorded statement of the Complainant made on January 10, 2020. The first and third statutory requirements are evidently fulfilled, and it is anticipated that the fourth will be. The dispute thus centers on the second requirement, whether the video recorded statement was taken within a reasonable time. The parties disagree on this point.
[8] This section has two objectives: first, to create a record of what is likely the witness’ best recollection of the event; second, to prevent or reduce the likelihood of inflicting further trauma on complainants through participation in the criminal justice system.
[9] The Applicant and Respondent have each cited cases in which the court’s assessment of the “reasonable” criterion has differed. The Crown concedes, however, that the period of some seven years between the period of the alleged offences and the date of the recording of the statement would be the longest known period in which a court has found the period to constitute a reasonable time.
[10] The Crown bears the onus of establishing on a balance of probabilities that the videotaped statement was taken “within a reasonable time after the alleged offence.” The court may exclude the video recording if its admission into evidence would interfere with the proper administration of justice. The requirement that the videotaped statement be made within a reasonable time of the alleged offence is to ensure its reliability. In R. v. L.(D.O.), [1993] 4 S.C.R. 419, L’Heureux-Dube J. held that what constitutes a reasonable time will depend entirely on the circumstances of the case and that, in making that determination, the judge may take into account that children often delay disclosure. There is no firm rule. There is no “bright line” after which the timing of the statement is definitively unreasonable. The totality of the situation must be considered in terms of reasonableness. Courts are to consider the reason for any delay and its impact on the child’s ability to accurately recall events, rather than focussing on the amount of time.
[11] Jurisprudential consideration of these factors has recently helpfully been reviewed by MacNeil J. in R. v. B.D., a Kitchener Summary Conviction Appeal (SCA-22-101557, 23 January 2024, unreported) in January 2024, mentioning the following cases.
[12] In R. v. A.I.Z., 2023 SKKB 76, at para. 12, Klatt J. identified the following factors from the jurisprudence as being relevant to the assessment of “a reasonable time":
(i) the age of the child; (ii) the explanation for the delay; (iii) the impact of the delay on the child's ability to accurately recall the events in issue; (iv) the child's relationship to the accused; (v) the length and frequency of the alleged offences; (vi) the seriousness of the alleged offences; (vii) any development stages the child may have gone through since the last alleged offence; (viii) the child's emotional makeup; and (ix) any intervening events between the last alleged incident and the making of the statement that might affect the reliability of the statement.
[13] In considering whether a videotaped statement was made within a reasonable time, the court must balance these various factors, the most important of which are "the reasons for the delay and the impact of delay on the child's ability to accurately recall the events in issue": R. v S. (P.) (2000), 144 CCC (3d) 120 (Ont. C.A.), at para. 71, leave to appeal refused [2000] S.C.C.A. No. 486.
[14] Even where there has been a lengthy delay between the date of the offence and the time of the videotaping, it is open to the judge to find that the delay was reasonable and that the videotape is admissible: see R. v. M.(S.) (1995), 1995 ABCA 198, 98 C.C.C. (3d) 526 (Alta. C.A.). In M.(S.), a 17-month delay was considered a long delay. The concern is that a long delay can weaken the impact of the videotaped recollection and “there is always a risk that a trier might put too much weight on a taping that occurred when the report was already stale". However, the court there stated that this is a matter of weight, not admissibility.
[15] A four-year delay has been held not to be "within a reasonable time", given the likely effect of the passage of time on the complainant's memory, in light of the '"brevity of her statement and her inability to recall collateral facts": see R. v. B. (A.G.) (2011), 280 C.C.C. (3d) 85 (Alta. Prov. Ct.). A three-year delay was held to be within a reasonable time of the alleged offence in R. v. G.(S.) (2007), 221 C.C.C. (3d) 439 (Ont. S.C.J.), having regard to the reason for the delay and the impact of the delay on the child's ability to accurately recall the events.
[16] In R. v. S. (P.), at para. 75, Moldaver J.A. (as he then was), speaking for the Ontario Court of Appeal, found that a two-year delay was a "long delay" and a “borderline case”; however, the court found there was evidence to explain the late disclosure and the complainant was "not so young that the delay would raise obvious concerns about her ability to accurately recall the incident". And, in R. v. P.S., 2019 ONCA 637, at paras. 19-20, the Ontario Court of Appeal upheld the trial judge's decision to admit the video statement of a complainant where it was taken about three years and four months after the alleged offence. The court found that, while the length of time involved is an important factor for consideration, it is not determinative.
[17] In B.D., MacNeil J. found that the trial judge in the Ontario Court of Justice did not err in admitting the video statement under 715.1 in that case, in which the delay ultimately proved to be about 2.5 years, although it had initially been thought to have been longer. The trial judge cited the Ontario Court of Appeal decision, R. v. P.S., 2019 ONCA 637, at paras. 19-22, wherein the court affirms that what is "a reasonable time" between the alleged offence and the video-recorded statement is not determined by the length of delay alone. Rather, it is for the court to determine what is "reasonable" with the context of each specific case. Further, the Court of Appeal held at paras. 21-22:
It is important to recall that s. 715.1(1) directs its energy at the testimony of children. The practical and recognized reality is that children will often delay disclosing abuse they have suffered, particularly when the abuse is sexual in nature and involves perpetrators who stand in positions of trust relative to those children: L. (D. O.), at pp. 464, 468; R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 136; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63; S. (P.), at para. 69. Whether the complainant is a child or not, it is a "simple and irrefutable proposition" that the reasons for delayed disclosure in sexual crimes, such as the crime in this case, are many, including "embarrassment, fear, guilt, or a lack of understanding and knowledge": D.D., at paras. 65-66.
Accordingly, it would make little sense to take a known feature of many child complainants' journeys toward the justice system - delayed disclosure - and make it a dispositive factor in the admissibility inquiry. This is precisely why each case must be approached on its own facts, having regard to all of the circumstances of the case, to determine whether the passage of time between the alleged events and the giving of the video statement is "'reasonable": L.(D.O.), at pp. 467-69.
[18] The Respondent urges me to follow the conclusion of Ellies J. in R. v. Lajoie, 2011 ONSC 2005, that the word “reasonable” in s.715.1(1) cannot refer simply to the reasons for the delay. Rather, “reasonable” must be informed by the purpose for which the section was enacted, which includes the preservation of an early account of the child’s complaint, and diminishing the stress suffered by a child complainant. In Lajoie, Justice Ellies determined that the 4-5 year delay from the end of the allegations to the video recorded statement was not within a reasonable time.
[19] In R. v. J.M., 2016 ONSC 535, at paras. 25-29, Quigley J. stated:
[25] R. v. L.D.O. emphasizes that Parliament’s purpose in enacting s. 715.1 was twofold: (i) to permit the preservation of an early account of the child's complaint, and (ii) to diminish the stress and trauma suffered by a child complainant associated with testifying at a trial of a person at a trial like this, charged with having perpetrated sexual abuses against the child complainants over a protracted period.
[26] It is well-established that recollection decreases in accuracy with the passage of time and thus as more and more time passes between the time when the offences are alleged to occur and the time when the statement is taken, the inevitable impact of the delay is that the reliability and accuracy of the statement potentially diminish and are called into doubt, thus compromising the foundational premise for the provision’s application. That is to permit the admission into evidence of statements taken within a reasonable time of the offences alleged because, when taken in reasonable proximity to the events, they are capable of providing "inestimable assistance in ascertaining the truth": see R. v. L.D.O., [1993] S.C.J. No. 72 at para. 76; R. v. S. (P.), [2000] O.J. No. 1374 (Ont. C.A.) at para. 71; and R. v. F. (C.C.), [1997] 3 S.C.R. 1183 at para. 21.
[27] In my view, the delay in this case between the time when the offences occurred and the time when the videotape statements were taken is too lengthy in all of the circumstances to permit them to be construed as “an early account of the child’s complaint,” and thus to be able to be relied upon to fulfill the first legislative purpose of the provision of assisting in ascertaining the truth.
[28] Secondly, s. 715.1 was intended to diminish the stress and trauma that would be suffered by a child complainant associated with testifying at a trial of a person such as this. The fact of the matter, however, is that neither of the two complainants, K.C. or K.C.1 are still children of an age that the section was designed to protect. As the period of delay extends from the date the offences ended until the date when the statement is taken, when combined with the delay that inevitably results as the matter proceeds to trial, we are left with complainants such as these two who are no longer children at the time of the trial.
[29] Thus, the second policy objective that Parliament had in mind in enacting the provision, to diminish the trauma suffered by a child complainant in having to testify at trial is no longer present when the complainants are in their late teens. This is not to suggest that giving evidence by them may not be difficult or traumatic, as it may be for any adult witness, especially where the allegations are of the personal violation of the complainant as in sexual abuse cases. It is simply a recognition that at the age they have now achieved, they will be better able to deal with that stress and trauma, unlike younger children who the provision was designed to protect: see R. v. Lajoie, 2011 ONSC 2005 at paras. 11 and 13.
[20] I agree with the observations of Quigley J. and consider that they are apt in the present case.
[21] I have reviewed the totality of the situation when considering reasonableness in this case, including the reason for any delay and its impact on the child’s ability to accurately recall events, rather than focussing strictly on the amount of time.
[22] The period of what constitutes a “reasonable” delay cannot be infinitely elastic, or it risks becoming meaningless. Parliament, had it wished to do so, could have simply prescribed in s.715.1(1) that such a statement would always be admitted into evidence. It has not done so. Rather, it is incumbent on judges to undertake a purposive and principled analysis.
[23] Given the young age of the complainant at the time of the alleged incidents (six years old), the subsequent delay of seven years in this case before the recording of the statement is too long to ensure that an accurate and early account of the alleged incidents is captured. On a principled basis, its admission into evidence would not be consistent with a prime purpose of the statutory provision.
[24] Moreover, the Complainant is now 18 years old, an adult and a mother herself. As in J.M., she is no longer a child. She is fully capable of giving viva voce evidence regarding the alleged offences without the assistance of the video recorded statement.
[25] Having regard to all of the factors relevant to the analysis, I find that, on the particular facts of this case, a period of seven years from the period of the alleged commission of the offence until the recording of the statement to police is just too long to be reasonable. Its admission would be unfair to the Respondent and potentially interfere with the proper administration of justice in this case.
[26] Consequently, the Crown’s application is dismissed.
M.R. Gibson J. Date: March 27, 2024