COURT FILE NO.: CR-22-00000048-0000 DATE: 2024Jan22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – P.C.B. and M.B.O. Defendants

Counsel: H. Chiavetti and K. Anderson, for the Crown S. Ellacott, for the defendants

HEARD: August 8, 10, October 19, November 28, 29, 30 and December 6, 2023

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

Tranmer J.

REASONS FOR DECISION ON PRIOR TO TRIAL APPLICATION (Crown Application under Section 715.1 - Admissibility of Video-Recorded Evidence)

Background

[1] The accused are charged on a 16 count indictment with sexual offences, assault and threatening against 6 of their children over a period of time commencing January 1, 2012 and ending on August 22, 2019.

[2] The accused have elected trial by judge alone.

[3] Under section 715.1 of the Criminal Code of Canada, the Crown seeks a provisional order admitting into evidence at the trial, subject to adoption during the trial proper, the video recorded police statements, in their entirety, given by the children M., G., B., L., H., K. and C.. There are 17 of these statements in total.

[4] The statements were taken in roughly 3 timeframes, namely in the summer and fall of 2019, March and June of 2020 and January and July and August of 2021. Four of the children gave statements on each of the 3 occasions. Two of the children gave statements on the first 2 occasions. One child gave only one statement on the initial occasion.

[5] The birthdates of the children are as follows, M. on April 20, 2014, G. on April 30, 2012, B. on July 21, 2008, L. and H. on August 27, 2007, K. on November 22, 2006, and C. October 18, 2006.

[6] The allegations occurring last in time are of assaults by M.B.O. on 3 of the children on August 22, 2019. He was arrested on that date.

[7] The children were apprehended by the CAS on October 29, 2019. Since that time, M. and G. have lived together with their aunts. B. and K. have lived with their grandparents. L., H. and C. have lived together with her biological mother with H. and L. previously residing together with an aunt.

[8] There were no allegations of sexual misconduct made by the children until the 4 statements made by M., G., K. and B. in 2021.

[9] There is undisputed evidence that prior to the statements made in 2021, the children had discussed the allegations with the CAS, their relatives and with each other. The content of those discussions and the number of occasions of such discussions are not in evidence.

[10] The evidence on this application consisted of the video recordings, testimony of police officers who questioned the children, and an affidavit by Police Officer Budgell who became involved as the officer in charge on May 3, 2021.

[11] PC Budgell’s affidavit is a summary of the investigation conducted by prior officers and includes statements given by relatives and babysitters to those officers and PC Budgell. Firsthand testimony by those witnesses was not presented at the application. Photographs, emails, texts and a CAS recording of M. mentioned in the affidavit were not adduced in evidence. The defence objected to the hearsay information contained in the Budgell affidavit.

The Issue on the Application

[12] The defence objects to the admissibility of the video recorded statements on the basis that certain of the video recordings were not made within a reasonable time after the alleged offence and do not describe the acts complained of.

[13] The defence also objects in particular with respect to the video recorded statements made in 2021 that those children were influenced greatly by what they were told by other people, in particular by their relatives and their siblings, and that their statements were made in response to grossly leading and suggestive questioning so as to entirely undermine the truth seeking function of the section.

[14] The defence also submits that there is no evidence explaining the reason for the delay in taking the video recordings, particularly with respect to the 4 Video Recordings made in January, July (2) and August 2021.

[15] Subject to the witnesses adopting the contents of the video recordings at trial, and subject to the court not being of the opinion that the admission of the video recordings into evidence at trial would interfere with the proper administration of justice, it is conceded that that the children, as victims or as witnesses, were under the age of 18 years at the time the offences are alleged to have occurred.

Legal Principles

The Purposes of s. 715.1

[16] At its core, the purpose of section 715.1 of the Criminal Code of Canada is to ameliorate barriers to effective truth finding. It has been identified that one of the barriers to effective truth finding posed by the established procedure stems from the specific difficulties which young complainants encounter in attempting to provide a full and accurate account of the relevant events while testifying at trial. The purpose of s.715.1 is to assist the court in obtaining a full and candid account of the acts complained of by the complainant. R. v. J.A.T., [2013] O.J. No. 4384 (S.C.J.), para. 9.

[17] The section is designed to preserve an early account of the child’s complaint 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 at trial. It is believed that an early statement will be accurate and a more complete account of what took place.

[18] The further purpose of section 715.1 of the Criminal Code of Canada is to diminish the stress and trauma suffered by child complainants as a by-product of their role in the criminal justice system. R. v. L. (D.O.), [1993] 4 S.C.R. 419, para. 34, 35. The section acts to remove the pressure placed on a child victim of sexual assault when the attainment of truth depends entirely on her/his ability to control her/his fear, her/his shame and the horror of being face-to-face with the accused when she/he must describe her/his abuse in a compelling and coherent manner. The section ensures that the child’s story will be brought before the court regardless of whether the young victim is able to accomplish such an unenviable task. Para. 40.

[19] It is recognized that young people will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The younger the child, the more pronounced this will be. R. v. C.C.F., [1997] 3 S.C.R. 1183, paras. 19 to 23.

What is a reasonable time?

[20] What constitutes a reasonable time requires a sensible approach. If a sensible approach is not taken, it would defeat the very purpose of section 715.1 of the Criminal Code of Canada. One has to remember that the statement’s admissibility is different from the consideration of the ultimate weight and reliability. The weight and reliability cannot be determined until the court undertakes an assessment of all of the evidence after all of the witnesses have testified and final submissions have been made at trial. R. v. P.S., 2019 ONCA 637, para. 29.

[21] In considering whether a videotaped police statement has been made within a reasonable time, the court must balance a number of factors, the most important being the reasons for the delay and the impact of the delay on the child’s ability to accurately recall the events issue. R. v. P.S., [2000] O.J. No. 1374 (C.A.), para. 71; R. v. S.G., [2007] O.J. No. 2203, para 16. In that case, the Court of Appeal found evidence to explain the delay in the demeanour of the child, the child’s relationship with the accused, and the fact that the complainant had apparently been victimized by her brother before and after the alleged incident with the accused. Paras. 72, 73, 74.

[22] Other factors to be taken into consideration by the application judge are set out in paragraph 65 of R. v. L. (D.O.), [1993] 4 S.C.R. 419, as follows: (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.

[23] The purpose of the reasonable time requirement is to ensure reliability. The greater the time between the incident and the video recording the greater the chance of loss of memory or third-party influence upon the memory.

[24] A “reasonable time” is a fact driven determination.

[25] There is no hard ceiling for what is a reasonable delay.

[26] Consideration of decisions of what has or has not been found to be within a reasonable time is of limited utility. R. v. P.S. [2019] O.J. No. 4073, Fairburn JA, paras. 19, 20.

[27] However, a review of past decisions is of some guidance particularly for the principles that are articulated in them.

[28] In R. v. A.K., 2019 ONSC 3009, this court ruled that a 3 year delay was inadmissible.

[29] In R. v. Scott (1993), 87 C.C.C. (3d) 327 (Ont. C.A.), a 4 ½ month delay was admitted into evidence.

[30] In P.S. [2000], the child was 7 years old at the time of the incident and 9 years old at the time of the video recording. Justice Moldaver said that this 2 year delay was a long delay and a borderline case but agreed that the video recording be admitted at trial under the section. The court stated, “Although 2 years is a long delay, C was not so young (9 years) that this delay would raise obvious concerns about her ability to accurately recall the incident (a single incident case)…In addition, there is no suggestion that anything occurred in the 2 year time frame that may have influenced C so as to cast doubt on the reliability of the videotaped statements nor is there anything to indicate that C was motivated to implicate the appellant in a crime he did not commit”. para. 75.

[31] In S.G., this court found to be admissible a video recording made by a 13-year-old in relation to events that occurred at ages 9 or 10 years. The court found that the delay was explained by the fear of the complainant and her mother of the accused. The court stated that the age of the child is a very significant factor assuming that delay is explained. The court stated that the younger the child more rapidly the memory diminishes. I take this to mean that the younger the child the more of a concern a long delay is in the court’s consideration. The court found that “M was not of such a young age where a 3 year delay in obtaining the video recording would raise obvious concerns about her ability to accurately recall the incidents”.

[32] In R. v. Lucas, 2001 BCCA 361, the incident occurred when the child was 2 years of age. The video recording was made when the child was 6 years of age. The 45 month delay was found not to be within a reasonable time following the event. The court noted that in determining what is a reasonable time requires consideration that the nature of the allegations of abuse are often described through a process of delayed disclosure, the age of the child throughout, the honest hesitation of the mother and the accused’s right to a fair trial.

[33] In C.C.F., Justice Cory stated, “it will be self evident to every observant parent and to all who will work closely with young people, that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The younger the child, the more pronounced will this be”. Para. 19. Justice Cory also commented, “for example, a child assaulted at the age of 3 or 4 years may have very little real recollection of events a year or 2 later”. Para.21.

[34] In P.S. [2019], the last of the offences occurred when the witness was 6 to 8 years of age. The video recording was made when the child was 12 years of age. The delay of 3 years and 4 months was found to be within a reasonable time.

[35] In R. v. S.M., 1995 ABCA 198, a delay of 17 months was found to meet the section criteria. The court noted that the trial judge was told very little about why the delay happened. The court stated, “He nevertheless apparently inferred that the explanation for the delay was the natural reluctance of the child to complain plus an honest hesitation by the mother about what was the right thing to do.”

Other principles

[36] The content of the statement must conform to the rules of evidence and be otherwise admissible. R. v. L. (D.O.), para. 19.

[37] The burden on the application is upon the Crown to demonstrate on a balance of probabilities that the videotaped statements meet both the rules of evidence and the formal requirements of section 715.1 of the Criminal Code of Canada. A.K., para. 12; S.G., para. 14; R. v. G.W., 2014 ONSC 507, para. 15.

[38] It is recognized that children’s memories may fade faster than those of adults. Thus, there is a clear advantage to gathering evidence from a child as early as possible. L. (D.O.), para. 76. On the question of the impact of the delay on the child’s memory and whether the delay has been too long, the age of the complainant is a very significant factor, presuming that the reason for the delay has been explained. The younger the child the more pronounced the child’s recollection diminishes with the passage of time S.G., para. 22, 23. Hence, longer delay is of more concern than with an older child.

Is there an explanation for delay in making the statement?

[39] In the case before me, there is little information as to why the various delays occurred. Some of the delay is attributed to police inaction. This evidence was adduced in cross-examination. In R. v. Lamure, 2018 O.J. No. 5341 (SCJ), delay on the part of the police was not held against the complainant.

[40] There is also evidence that some of the children were told by the accused not to tell anyone.

[41] I have taken into consideration the principles set forth in S.M. and also in D.D., Kiss and P.D., cited below. In R. v C. C., 2019 ONSC 3232, this court pointed out that the child was age 12 at the time of the alleged assault and “unlike a much younger child would have a recollection of a traumatic event”, when making the video recording at age 16 years. The court went on to say, “With respect to the reasons for delay, it is not unusual for a victim of sexual assault to be reluctant in reporting the incident”. That principle, articulated throughout the case law, is an important consideration in my decision in this case. I have also taken into consideration that the courts have recognized the natural reluctance of children to talk about such things.

[42] I have also taken into consideration, as I indicate below, that at least with respect to the 4 final video recordings, there was the involvement of the adult relatives and the CAS prior to these video recordings being taken.

[43] As indicated in P.S. [2000], evidence explaining the delay was found in the child’s manner of testimony at trial, the child’s relationship with the accused, and other abuse suffered by the child.

[44] In S.G., the court found the explanation in the child’s statement.

[45] In Scott, evidence explaining the delay was found in the actions of the parents, the police, and the manner of testimony by the complainant at trial. Para. 39.

[46] The question of what is a reasonable time is case specific and depends upon all of the circumstances. The court must take into consideration all of the circumstances such as the age of the child, the delay in disclosure and the reason for the delay. R. v. Lucas, 2001 BCCA 361, para.13.

[47] Relevant to this consideration are the principles concerning disclosure and piecemeal disclosure. R. v. D.D., 2000 SCC 43, [2000] 2 SCR 275, para. 65; R. v. Kiss, 2018 ONCA 184, para. 101; R. v. D.P., 2017 ONCA 263, para. 30, 31: We see no error in the trial judge’s assessment of the impact of JE’s delayed and bifurcated disclosure on his credibility. Nor do we accept the argument that there is a fundamental difference between delay disclosure and piecemeal disclosure of prior sexual abuse. The comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case.

The Impact of the Delay

Tainting or Influencing the witness’ statement. Open-ended questioning

[48] The question on this application is one of admissibility, not one of assessing the weight of the evidence.

[49] In P.S. [2000], the court specifically observed “there is no suggestion that anything occurred in the two-year timeframe that may have influenced the complainant so as to cast doubt on the reliability of her videotaped statements, nor is there anything to indicate that C was motivated to implicate the appellant in a crime he did not commit”. para. 75.

[50] In S.G., the court specifically observed “there is no suggestion by the defence that anything that occurred between the events complained of and the videotaped statement had improperly influenced the complainant’s recollection of the events. para. 32.

[51] In C.C.F., the Supreme Court observed that “it would be preferable if the police officers conducting the videotaped interview would pose simple, open-ended questions to the child” although it was recognized that in some situations it will be necessary and appropriate to ask leading questions. Para 53. That court noted that the Ontario Court of Appeal has been upheld in its ruling that the possibility of witness tainting is a question of weight not admissibility, citing R. v. Buric, [1997] 1 SCR 535. In S.G., the court observed that the questions asked of the complainant by the police were not asked in a leading or pressured way. Also, the statement was given in the presence of the school social worker who is the person the complainant chose to initially disclose the events to. Paras. 30, 32.

[52] In A.K., the court noted that the Crown had agreed to redact portions of the videotaped statement contained leading questions which were therefore inadmissible. Paras. 2, 20.

Other issues

Editing the statement

[53] In J.A.T., the court edited the statement on the basis of hearsay and that the content was not with respect to the acts complained of.

[54] In J.F.A., portions of the statement containing responses by a support person present during the interview were excised from the tape because they rendered substantial parts of the video inadmissible and jeopardize the admissibility of the entire statement.

[55] Also in J.F.A., portions of the statement that referred to other misconduct not the subject of the charge before the court were held not to be admissible as nondescriptive of the acts complained of.

[56] In the present case, the Crown has not proposed any specific edits to address these issues, but left it up to the Court’s discretion.

Residual discretion to exclude

[57] The court has residual discretion to reject evidence contained in the statement where its probative value is outweighed by its prejudicial effect. L. (D.O.), para. 64.

Interference with the administration of justice

[58] Even if the court rules the statement admissible as meeting the s. 715.1 requirements, the court has the residual discretion to rule the statement to be inadmissible if it finds that admitting the statement would interfere with the proper administration of justice. A.K., S.G..

[59] In R. v. Toten, [1993] O.J. No. 1495 (OCA), paras. 64 and 65, the court gave an example that where the questioning of the complainant was so suggestive as to render the videotape of little or no value in eliciting the complainant’s version of events, the trial judge could exclude the videotaped statement.

The Principle in R. v. Archer, (2005), 202 C.C.C. (3d) 60 (Ont. C.A.)

[60] In the present case, each of the children’s video recordings describe multiple incidents of sexual abuse in their 2021 video recordings, and each child describes multiple incidents of physical abuse in each of the prior video recordings.

[61] In such a situation, the principle set out in Archer is relevant:

72 The videotaped statement was made immediately after M.S. went to the police on February 20, 1998, and within about three weeks of the date on which M.S. said the last act of sexual abuse occurred. The appellant does not submit that three weeks would constitute an unreasonable time between the offence and the making of the statement. He argues, however, that a videotaped statement is admissible under s. 715.1 only if the statement is made within a reasonable time of all of the allegations of sexual abuse made in the videotaped statement. He submits that the events described by M.S. in the videotaped statement commenced almost five years before the making of the statement and that five years is at least "prima facie unreasonable".

73 The determination of whether a videotaped statement is made within a reasonable time after the alleged offence must be made on a case-by-case basis by the trial judge. Appellate courts will not interfere with that assessment, absent demonstrated error in principle or an unreasonable finding: R. v. L.(D.O.) (1993), 85 C.C.C. (3d) 289 at paras. 73-74 (S.C.C.).

74 Because counsel at trial conceded that the statutory requirements were met, the trial judge did not deal specifically with the timing of the making of the videotaped statement. I am satisfied, however, that had the argument made on appeal been made at trial, the trial judge would have been satisfied that the videotape was "made within a reasonable time after the alleged offence". Where, as here, the alleged offence involves ongoing sexual abuse over a prolonged period of time, the operative date must be the last incident of abuse. In this case, the alleged offence of sexual assault began in 1993, but the offence alleged in count one continued until early February 1998. The "alleged offence" was ongoing less than three weeks before the videotape was made. (emphasis added)

75 My interpretation of the reasonable time requirement is consistent with that found in R. v. R.W.N. (2004), 181 C.C.C. (3d) 470 at paras. 20-21 (Ont. C.A.) and R. v. S.M. (1995), 1995 ABCA 198, 98 C.C.C. (3d) 526 (Alta. C.A.). More importantly, in my view, the interpretation urged by the appellant would exclude all statements made by child victims who had endured a prolonged period of abuse, no matter how close to the end of the abuse the child made the videotaped statement. It is in those very cases that the two purposes of s. 715.1 - to provide the jury with an accurate account of events and to reduce trauma to the child - can figure most prominently: see R. v. C.C.F. (1997), 120 C.C.C. (3d) 225 at 236 (S.C.C.).

[62] I apply the same principle to the allegations of physical abuse over a prolonged period of time in the present case.

Analysis

[63] The video recordings that the Crown seeks to adduce are as follows:

M.

1. November 19, 2019
2. June 11, 2020
3. July 29, 2021

G.

1. November 19, 2020
2. June 11, 2020
3. January 28, 2021

B.

1. August 22, 2019
2. March 17, 2020
3. August 10, 2021

L.

1. November 18, 2019
2. June 11, 2020

H.

1. November 18, 2019
2. June 11, 2020

K.

1. August 22, 2019
2. March 17, 2020
3. July 30, 2021

C.

1. November 18, 2019

(Tab 5, Amended Crown Application Record)

[64] The Crown withdrew its application with respect to the interview of M. given June 11, 2020.

[65] The video recordings which are conceded by the defence as admissible pursuant to section 715.1 of the Criminal Code of Canada are:

1. G. - November 19, 2019 and June 11, 2020 The defence concedes that M.B.O. poured water on K.’s head on August 22, 2019. Count 15.
2. B. - August 22, 2019 and March 17, 2020 The defence concedes that M.B.O. threw a tape measure which hit him in the chest.
3. K. - August 22, 2019
4. L. and H. - November 18, 2019

Subject to my comments below, I agree with the defence with respect to these video recordings.

[66] I will deal with the remaining video recordings in the order presented by the Crown.

M. - November 19, 2019

[67] This is the first video recording given by M.. She is 5 years old. At this time, she was living at the home of her aunt C.. She had lived at three previous homes prior to this.

[68] The first allegation is that her parents slapped her butt and hit her hands when she was mean. She says this occurred at “your old house”, “a long time ago”. There is only one assault charge with respect to M. alleged to have occurred on the date of the arrest of M.B.O. namely August 22, 2019. This allegation is therefore largely irrelevant, and I cannot find as to when the events described occurred. Accordingly, I cannot find that this video recording was given within a reasonable time of the events occurring and therefore this portion of the statement is inadmissible.

[69] The other allegation that she makes is that she saw her parents hit her siblings. There is no date whatsoever given with respect to these occurrences and therefore for the same reason this portion of her video recording is inadmissible.

[70] The balance of the statement is not probative and is irrelevant and therefore inadmissible.

[71] This video recording is inadmissible under section 715.1 of the Criminal Code of Canada.

M. - July 29, 2021

[72] This is the third video recording given by M.. She is 7 years of age at the time.

[73] The portion of the video recording commencing at page 18 concerning little food and no video games is irrelevant and inadmissible. Likewise, the portion of the video recording at pages 22 and 23 concerning cameras and pictures is irrelevant and inadmissible.

[74] M. states that her parents were a very bad mom and dad. She says that they hit everyone and punched them and smacked them on the bottom. There is no time stated as to when this occurred. It could have been any time prior to August 22, 2019. Therefore, I am unable to find that the video recording in this regard was made within a reasonable time of such events. That portion of the video recording commencing at page 20 is inadmissible.

[75] M. also states that her parents touched her on her private parts and that they showed her their private parts. She stated that that happened once. She said it occurred at their old house on Bob’s Lake which means sometime between March 2017 which is over 4 years earlier and August 2019 which would be 2 years earlier. This would place it between ages 3 and 5 years for M.. In view of this uncertainty as to the timing, I find that the Crown has not met its onus to prove that the video recording occurred within a reasonable period of time after the event.

[76] The video recording therefore is inadmissible in that regard.

[77] In addition, the officers employed leading question tactics on this 7 year old.

[78] I am also very concerned that the video recording of this witness was tainted by the involvement of her Aunt S.. Aunt S. had attended at the police station with G. in January (2021) and had sat in the interview room for a portion of the police interview of G.. G. and M. lived with Aunt S..

[79] At the very outset of this interview, when M. was asked if she knew why she was at the police station, she immediately responded that she was there to talk about her mom and dad and that they touched her on her private parts. She stated that she was told that she had to come and tell that to the police today by her aunt S.. She stated that she remembered this incident because she had talked to her aunt S.. Her aunt S. had asked her if her mommy and daddy had touched her private parts.

[80] Whereas G. had appeared reluctant to talk in her January 2021 video recording about anything her parents had done and needed Aunt S. close by and in the interview room, M. came into the room ready to and apparently prepared to talk about such things.

[81] M. had given 2 prior video recordings in which sexual misconduct was not raised.

[82] I am very concerned that this video recording by M. has been tainted through the involvement of her aunt. Clearly, M. has discussed sexual activity with her Aunt S. and could have been influenced by her Aunt S.. I am concerned that that casts doubt on the reliability of M.’s statement. The Budgell affidavit also indicates that the CAS had conducted an audio recorded interview of M. concerning sexual misconduct prior to this video recording. Therefore, this case is unlike P.S. or S.G. in which there was no suggestion that anything occurred between the events complained of and the video statement that had improperly influenced the complainant’s recollection of the events.

[83] On this basis also, I would find that the probative value of the video recording is outweighed by its prejudicial effect and is therefore inadmissible.

[84] I also find that the video recording is inadmissible because to admit it would interfere with the proper administration of justice.

G. - June 11, 2020

[85] The defence has conceded that this video recording is admissible under section 715.1 of the Criminal Code of Canada.

[86] With respect, I disagree. I find portions of it to be inadmissible.

[87] The allegations concerning the wooden stick are not the subject of a charge. She states that she did not see her father hit her brother but that someone told her. The statements concerning cameras and the naked game are irrelevant and not probative. I find all of these portions of the video recording to be inadmissible.

[88] The portion of the video recording concerning her father pouring coke on her sister is in my view made within a reasonable time of the August 22, 2019 events given the applicable principles and the circumstances of the case, and therefore is admissible.

G. - January 28, 2021

[89] This is the third video recording given by G.. She is 8 years old at the time. She is living with Aunt S. and M..

[90] The first incident that she describes is being in the bathtub with her parents with no one having clothes on. She stated that it happened more than once. She was “very very young”. Her parents told her not to tell anyone.

[91] The second allegation that she describes is her father making her feel his boy part once in his bedroom on another day.

[92] With respect to a third allegation concerning the fork, she stated that this occurred more than once, “about until I left their house”. This would place the incidents occurring up until about 14 months prior to the statement which, in my view, in the circumstances and on the basis of the applicable legal principles, is within a reasonable time of the statement being taken.

[93] On the basis of the Archer principle, this would render the entire video recording admissible pursuant to section 715.1 of the Criminal Code of Canada.

[94] The fourth allegation made in this statement concerns G. kissing her father’s penis. She stated that this occurred when she was “6 or 5, 4, 3, 2, 1”.

[95] The fifth allegation concerns the accused father putting his foot or feet on the child other at school. The school or grade or age is not identified.

[96] The sixth allegation against the accused concerns them teaching the child how to touch a feather ball to her vagina. She says this occurred when she was 5 or 6. That would place the timing of the incident to be before April 30, 2019 and since April 30, 2017.

[97] As I have stated on the basis of the Archer principle, and all of the circumstances and applicable legal principles, this video recording would be admissible pursuant to section 715.1 of the Criminal Code of Canada from the reasonable time perspective. However, I would note that in this video recording, G. is most hesitant and wants her Aunt S. to sit in with her. In fact, Aunt S. does sit in on most of the video recording. She does not appear to interfere in influencing G. significantly during the interview.

[98] But, it is undisputed that G. has discussed the topics with “Christie”, presumably Aunt C. with whom she had lived, Aunt S. and the CAS in advance of this interview. The content of those discussions is not before the Court.

[99] G. did not mention sexual misconduct in her 2 prior video recordings.

[100] Therefore, this is not a case as in P.S. or S.G. where there is no suggestion that anything occurred between the events and the video recording that had improperly influenced G.’s recollection of events.

[101] Also, she is of such a young age that the delay in obtaining this video recording does raise significant concerns about her ability to accurately and reliably recall the incidents in view of the intervening involvement of her aunt and CAS.

[102] This video recording is not admissible under the section for these reasons.

B. - August 10, 2021

[103] This is B.’s third video recording. He is 13 years of age born July 21, 2008.

[104] The first three allegations in this video recording relate to an incident at about the time they were going to go to Niagara Falls, a threat by the accused M.B.O. that he will kill them all and seeing M.B.O. hit C. with a shovel and shoving him into the side of a barn resulting in a big bruise on C.’s head. B. appears to tie these events to the winter of 2019, before the arrest. On the basis of the admissible evidence, the factors and the timing being approximately 2 ½ years prior to this statement, I find that this portion of this statement is admissible under section 715.1 of the Criminal Code of Canada.

[105] The allegations that M.B.O. threw the tape measure which hit B. in the chest, about the book incident and the incident of the door being slammed on H.’s head, which occurred at Limoges, 5 to 8 years prior, is captured by the Archer principle and is therefore admissible. The allegation concerning M.B.O. hitting one of them every day occurred at Limoges and Greely, 5 to 10 years prior, is also captured by the Archer principle and is admissible.

[106] The portion of the video recording with respect to the sexual assault is inadmissible because it is totally based on what B. was told by the CAS. He said that he did not see anything happen. He “assumed”, and said it was “probably sex stuff”. Having been told by the CAS, he then based this on the girls’ door being closed and no one allowed in, and that they were not crying.

[107] His statement about what K. said about M.B.O.’s private parts is also inadmissible as hearsay, if offered for the truth of the matter stated. However, to the extent that it is offered simply because she made that statement and not for the truth of the matter stated, it would be admissible.

[108] The portion of the video recording where the officer cross examines B. as to whether M.B.O. had ever done sexual stuff to him is inadmissible because it is cross-examination and leading in the extreme.

[109] I note that there is no explanation for the delay in the making of this video recording, other than police delay, except that B. says that M.B.O. told them not to say anything about the hitting.

L. - November 18, 2019

[110] The defence admits that this video recording meets the criteria under section 715.1 of the Criminal Code of Canada.

[111] I agree, except with respect to certain parts of the video recording.

[112] L. is 12 years of age at this time. The accused M.B.O. was arrested August 22, 2019. L. was apprehended together with the other children by the CAS on October 29, 2019.

[113] She states that on the day that her father was arrested, she saw her father dump water on K.’s head and push her. The statement is made within a reasonable time of the event, August 22, 2019, and therefore is admissible.

[114] Her statement that her father punched her in the back a year ago, that her father pushed C. in the kitchen a few times using two hands, although she does not attach a specific time to that occurrence, and that her father hit her in different spots at their house in Limoges would also be admissible on the Archer principle.

[115] She did not see her father slam a door on H.’s face, and her statement that K. told her that the accused hit B. on the head on the day of arrest are hearsay and those portions of her video recording are inadmissible.

[116] The portion of this video recording where she says that her mother would give her little spanks on the bottom is not relevant to any charge before this court and is therefore of no probative value and therefore inadmissible.

L. - June 11, 2020

[117] This is the second video recording of L.. She is 12 years of age. She is living with her aunt H..

[118] At the end of this video recording, she tells the officer that her father kicked her in the back once, hard and that it gave her a sore back. She says that this occurred 2 years prior to the video recording.

[119] In the circumstances, and applying the legal principles that govern, I find that this video recording was made within a reasonable period of time and is therefore admissible, subject to what I say below concerning certain portions of it.

[120] Her allegation that C. was thrown around the kitchen “a long time ago”, would be admissible under the Archer principle, as would her statement that she had been punched in the head and the back and kicked in the stomach by her father.

[121] Her statement that she saw M., G. and Be. with big bruises on their faces, although not tied to any specific time, would be admissible under the Archer principle.

[122] The portions of this video recording concerning her father keeping them away from her mother for 8 years, and concerning cameras, and not enough food is irrelevant and not probative and therefore, inadmissible.

[123] The portion of her video recording that M., G. and Be. got the worst of it is hearsay. She said that she did not see this happen, that she was always at school when this happened. This portion of the video recording is hearsay and inadmissible.

[124] In this video recording, she repeats an incident of the door being slammed on H.’s face. She says that “I kinda saw dad do it”. However, in her first video recording, she stated that she did not see this happen. The discrepancy is a matter of weight, but this portion of the video recording is admissible under the Archer principle.

H. - November 18, 2019

[125] H. is 12 years of age. This is her first video recording by police. She lives with her Aunt H..

[126] The defence admits that this video recording meets the requirements of section 715.1 of the Criminal Code of Canada.

[127] She states that her mother and father would smack her butt for example if she took something.

[128] She states that daddy once hit her in the back of the head, where her ponytail is.

[129] She states that they would do the same things to her siblings.

[130] She states that daddy would always pick on her older sister and on B..

[131] In response to a leading question by the officer, she states that there was no sexual stuff or inappropriate touching.

[132] Because the defence admits that the video recording meets the requirements of the section and because H. uses words such as “always”, and “would do” and although there is no specific timing attributed to the allegations, I am prepared to admit the video recording under section 715.1 of the Criminal Code of Canada.

H. - June 11, 2020

[133] H. is 12 years of age. This is her second video recording. She is now living with her aunt S..

[134] The portions of the video recording which speak about cameras in the house and the naked game are irrelevant, not probative, and not the subject of charges. Those portions of the video recording are inadmissible.

[135] She states that he always hurt us and stuff, daily. This portion of the video recording would be admissible as it would appear to describe conduct that continued up until the date of arrest which was less than a year prior to the video recording.

[136] She states that mom would give us pats on the butt,” very very rare”.

[137] In answer to a leading question as to whether there was ever any time that her daddy would ask her to take off her clothes, she replies, no.

[138] She states that she did not witness anything else happening.

[139] She states that she did not see M. fall but was told by someone that she had. That is inadmissible hearsay.

[140] She stated that she saw M. with a black eye and a big bruise on her forehead. That portion of the video recording would be admissible under the section.

[141] She also says that she saw daddy hit M., that she thinks that she saw daddy punch L. in the back while at the McDonald’s parking lot, that he once slammed the door in her face which gave her a big black eye and that daddy threw water on K.. This latter incident occurred on August 22, 2019, and I find that portion of the video recording to be admissible as made within a reasonable time and that those other portions of the video recording would be captured under the Archer principle and admissible.

K. - March 17, 2020

[142] This is the second video recording of K.. She is 13 years of age. She has been living with her brother B. at their grandparents’.

[143] She describes briefly a number of incidents of physical abuse including that she saw her dad hurt the other children a lot, that she saw a tablet thrown at C. and that he got pushed around a lot, that all of them got hurt, that once he picked her up by the neck and pushed her to the wall and then dropped her, that he pushed her, that he threw a shovel and a bucket at her but it did not hit her.

[144] She states that he would hurt somebody every day up until the day of his arrest.

[145] She also stated that on one occasion when they were going to go to Niagara Falls he threatened to kill them all. This was at the house at which M.B.O. was arrested.

[146] On the Archer principle, this prolonged physical abuse would be admissible as it appears to have continued up until the date of the arrest of M.B.O., some 8 months prior to this video recording.

[147] Although there is some reference to lack of food, an assault on the mother, an indication that “we” have discussed what happened with their grandparents, and an acknowledgment that H. is the source of the allegation that M.B.O. slammed the door on her face, which must be edited out, I find that this video recording meets the requirements of section 715.1 of the Criminal Code of Canada, subject to adoption at trial by the witness, and is therefore admissible.

K. – July 30, 2021

[148] The officer that conducted this video recording was brought into the investigation on May 3, 2021.

[149] The video recording consists of repeated examples of leading questions and questioning that is highly suggestive in the extreme.

[150] The evidence is that this child had not mentioned sexual misconduct matters in her prior 2 video recordings and that she had been out of the house since October 2019. The evidence is that prior to this video recording she had spoken to other persons about sexual misconduct by her parents including with the CAS, multiple relatives and her siblings.

[151] The 4 video recordings of the 4 children in 2021 are the first time that allegations of sexual misconduct by the accused are made.

[152] These video recordings are made more than a year after the children have been removed from the matrimonial home and have been living with relatives in pairs or threes and involved with the CAS.

[153] The focus of the 4 video recordings is specifically on sexual offences committed by the accused.

[154] Police officers Budgell and Barnes acknowledged the importance of not cross contaminating the evidence of child witnesses or using group pressure tactics in interviewing child witnesses.

[155] The officers acknowledged that it is important that child witnesses’ evidence not be tainted by prior interviews by untrained adults or through leading questions during the police interview.

[156] Examples of officer Budgell using these techniques during the third video recording of K. include the following.

[157] He says, “I’m just going to ask you flat out, were you ever touched anywhere that you should’ve have been touched”.

[158] He tells her that he’s had conversations with different family members… “Your aunt H.… the other children… her grandmother.”

[159] He goes on: … The reason you’re here is because I had a conversation with Heather, and she was having conversations with you… … M., you know, was having a hard time, and so was G., and we’ve talked to them… Your grandmother (with whom she is living at the time) told me things kind of flash in your memory…

[160] Late in the interview, the officer tells K. “I’m just going to step out for one second and ask CAS if they need anything”. He returns and asks about H. and L.. “I know there’s been some chat back and forth and I know they’re going through a tough time, … Rightly so”.

[161] She is questioned about her parents putting photographs of the children online. There is no such charge before the court.

[162] There are examples of the officer cross-examining K. in order to obtain a different answer than she has given to him. These include the following. “So those text messages when M.B.O. would come get you and you go into his room and you would snuggle. Do you remember saying that?” “Your grandmother told me that you told her…” “I know stuff happened at this house too…” “I think there’s more to your story, and I know you’ve talk to your aunt, and I know you’ve talk to your grandma, I know you’ve talked to your cousins.”

[163] The officer asks her a number of times about the text messages she has sent.

[164] He goes on, “You’re not lying to me? Do you remember when we talked about lying?”

[165] This is a police officer at the police station questioning a 14-year-old child. There is no evidence of the impact of that situation on her or her ability to understand it and deal with it.

[166] The officer puts 2 choice only questions to her, for example, “… Did he use his whole hand or did he use his fingers? …” “… Did he put his fingers inside of you or did he just rub it? …”

[167] The officer creates a story: “So ‘if’ he got you to touch him, ‘if’ that was to happen, ‘if’ you, not that you remember fully, but was it that you touched his… With your hands, or did he get you to use your mouth or anything like that?”.

[168] K. said: “I don’t know if it was in our room or sometimes in his room”. The officer turns this statement into: “And it happened in your room”.

[169] Officer Budgell asks K. if L.’s denial is truthful: “Is that truthful…? But is it truthful though…No. And I think we both kind of know that, right.”.

[170] In my view, the manner of the conduct of this video recording does not assist the truth-seeking function. In my view, by watching this video recording, the child will be retraumatized about matters that she has no personal knowledge of, having not seen or heard of such matters herself. Thus, the two purposes of section 715.1 of the Criminal Code of Canada are defeated.

[171] To a very large extent, the conduct of the video recording by the officer does not conform to the rules of evidence and in particular, with respect to hearsay, leading questions and cross-examination of the witness.

[172] K. is also questioned about pictures being put online and cameras in rooms which is highly prejudicial and not the subject of any charges.

[173] The video recording cannot be saved by editing or redacting.

[174] I find that the prejudicial effect of this video recording greatly outweighs its probative value. I further find that to admit this video recording evidence at trial would interfere with the proper administration of justice.

[175] For these reasons, I rule that this video recording is inadmissible at trial under section 715.1 of the Criminal Code of Canada.

C. -November 18, 2019

[176] C. is 13 years of age. This is the only video recording for C..

[177] When he is asked to talk about the last three months of his life, he responds by saying “3 months plus 13 years”.

[178] He states that both mom and dad hit him a number of times. What he remembers most is the time that daddy threw a drill at him in the barn. It hit him in the shoulder and left a couple of welts. He states that that occurred the summer prior, some 4 or 5 months before this video recording was made. I find that to be a reasonable time after the alleged event.

[179] He also states that one time K. got water dumped on her. This would be the occasion of August 22, 2019. Therefore, I find that this portion of the video recording is also admissible under the section has made within a reasonable time after the event.

[180] His statements that everyone has been hit more than once and that he gets hit the most, “pretty much my whole life”, made in this video recording are admissible under both the reasonable time requirement and the Archer principle.

[181] The portion of this video recording about Be being hit across the back or on the butt is irrelevant to any charge before the court and therefore, inadmissible.

[182] In response to the leading question as to whether mom and dad ever touched him inappropriately, his response is no.

Summary

[183] For these reasons, the Crown application is allowed in part as I have indicated with respect to each video recording.

Tranmer J.

Released: January 22, 2024