R. v. A.B., 2012 ABQB 280

Court of Queen ’ s Bench of Alberta Citation: R. v. A.B., 2012 ABQB 280 Date: 20120430 Docket: 100524172Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - A.B. Accused Restriction on Publication: By Court Order, information that may identify the person described in this judgment as the complainant may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Having admitted a s. 715.1(1) video interview with a child complainant into evidence at a sentence hearing, the court must now consider whether it should make any order under s. 715.1(2) of the Criminal Code .

[2] The court concludes that although subsection (2) of s. 715.1 might authorize a court to issue a publication ban relating to theexhibit, there is no justification for doing so in the circumstances here, on the condition that the exhibit is forthwith edited so as to blurthe face of the complainant. Cases and authority [3] Cited by the court: R. v Toten (ON CA), [1993] O.J. No. 1495 (C.A.); R. v C.C.F. (SCC), [1997] S.C.J. No. 89; R. v R.F. [2006] O.J. No. 4458 (C.A.) 1.

Background [4] During a sentence hearing, the accused having pleaded guilty to two sexual crimes but disagreeing with the prosecutor onthe sentencing facts, the court admitted into evidence as part of the young complainant’s evidence in chief a video recording of a police interview with her. The videotaped interview was conducted one week prior to the complainant’s 13th birthday. The tape of the video,and two of the three sketches made by the complainant during the interview, were made sentence hearing exhibits.

When the video wasentered into the hearing as an exhibit, no requests were made for an order pursuant to the provisions of s. 715.1(2). [5] Until the court could make a decision about a potential s. 715.1 (2) order in relation to the video, the court made aprovisional order that anyone who wished to access the video exhibit would have to make application to the court.

In the event, no suchapplications were received. [6] On the grounds that the video did not comply with Parliament’s direction that it be made within a reasonable time after thealleged offence, the court refused to admit into evidence a second video interview made with the young complainant approximately oneand a half years after the first interview. 2.

Interpretation of s. 715.1(2) [7]

Section 715.1 of the Criminal Code reads as follows: Evidence of victim or witness under 18 715.1

(1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time theoffence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victimor witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of thevideo recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interferewith 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). R.S., 1985, c. 19 (3rd Supp.), s. 16;1997, c. 16, s. 7;2005, c. 32, s. 23.

[ 8 ] Although a considerable body of case law has interpreted sub-section (1) of s. 715.1 , particularly in relation to the concepts of “reasonable time” and adoption of a video statement, so far as I am aware, no case law interprets s. 715.1(2) . Nor have I been able to find any reference to the subsection in the transcripts of the Justice Committee meetings dealing with that new provision of the Code, nor in the Hansard Debates when the new subsection was introduced.

Neither of the parties made any submissions concerning either the scope of the sub-section or its potential application in this case. [ 9 ] Becoming “admissible in evidence” is the only use of the video evidence referred to in s. 751.1(1). What then can be the grammatical meaning of s. 715.1(2) ? [ 10 ] At the outset, I note that the French version of the Code does not assist in discerning Parliament’s objective in introducing subsection (2).

It reads: Le juge ou le juge de paix qui préside peut interdire toute autre forme d’utilisation de l’enregistrement visé au paragraphe (1). [ 11 ] Subsection (2) of s. 751.1 is not required to authorize a judge to refuse to admit a video, which - although adopted by the witness, and made within a reasonable time after the alleged offence and describing only the acts complained of - would interfere with the proper administration of justice, as, for example, if the interview has been rehearsed or scripted: Toten at para. 65 .

Similarly, subsection(1) of s. 715.1 , together with the Court’s general powers, are sufficient to authorize the editing of any video to remove extraneous evidence, such as, for example, evidence concerning matters other than the acts complained of or evidence that is inadmissible for any other legal reason: Toten at paras. 55-57 . (Even though the Supreme Court of Canada corrected Toten on the issue of what constituted adoption of a videoed statement, it did not over-rule the other findings of the Ontario Court of Appeal on the

interpretation of s. 715.1: C.C.F. ) [ 12 ] Next, I consider what other or further use, beyond becoming an exhibit at trial, of a video could reasonably be made.

Two possible categories of use suggest themselves - use of the video if it is not admitted into evidence and use of the video if it is admitted into evidence. [ 13 ] In the first category, a video that is not admitted into evidence would presumably have to be disclosed to the defence and might be used by the defence as a cross-examination tool within the framework set by s. 10 of the Canada Evidence Act . (Such cross- examination indeed occurred here.) However, a trial judge may think it appropriate to prevent either of those possibilities, perhaps on the basis that the complainant was too young to be responsible for the content of the video interview, i.e. that the complainant did not meet the test set in s. 16.1 of the Canada Evidence Act requiring the ability to understand and respond to questions. [ 14 ] In the second category, a video admitted into evidence would be made an exhibit.

Although trial exhibits are typically provided to a jury for consideration during their deliberations, a judge could decide that the video exhibit not be provided to the jury, presumably so as to put all of the complainant’s evidence on the same footing: R.F. (There is of course no jury in this matter, so that issue does not arise.) [ 15 ] The last issue that I conclude might come within the ambit of s. 715.2(2) is that a trial exhibit would normally be made available to the public, including the media.

In almost all such situations, the video would be subject to a publication ban relating to the complainant’s identity. Therefore, the media could broadcast the video so long as care were taken to obscure the complainant’s face and any other identifying details.

However, given the comments made on the introduction of the legislation to the effect that the new legislation was attempting to make the publication ban provisions of the Code more effective in light of contemporary technology, it may be that Parliament also anticipated that a trial judge may think it appropriate to prevent even the anonymized broadcasting of the video. 3.

Should this court make an order pursuant to s. 715.1(2) prohibiting the broadcasting of the complainant’s videoed statement? [ 16 ] The court concludes that it should not make any order prohibiting the broadcasting of the exhibit made of the complainant’s videoed statement to the police. However, the court orders that the exhibit should, forthwith and prior to the access to the exhibit by any member of the public or the media, be edited by blurring the complainant’s face so that she cannot be identified.

[ 17 ] Because the wording of 715.2(2) is discretionary, before any publication ban were made relating to the video exhibit, the media would have to be given notice of a hearing to decide that issue. [ 18 ] Here, the video was made over two years ago in the Dolphin Room of the Zebra Centre in Edmonton; the setting for the video therefore cannot identify the complainant. [ 19 ] Because the video was made over two years ago and because the complainant’s clothing was not distinctive, the blurring of the complainant’s clothing is not required to shield her identity. [ 20 ] The blurring of the complainant’s face on the video exhibit should, however, be done forthwith.

While the media has the capacity to blur the complainant’s face on the video and understands the court’s order that the broadcasting of the complainant’s face would be a breach of the publication ban, the media are not the only persons who have access to court exhibits.

In order to ensure that the publication ban on the complainant’s identity is respected by any person who would access the exhibit, the video must be blurred before it is made available to the public. [ 21 ] There have been great physical, intellectual and emotional changes in the complainant between the date on which the video was made and the date on which the complainant testified at trial.

The way in which the complainant presented while giving evidence at trial behind a screen and in the courtroom during the remainder of the sentence hearing were markedly different from the way in which she presented four days after the last event with which we are concerned. The public should have access to both presentations. Heard on the 25 th day of April, 2012. Dated at the City of Edmonton, Alberta this 29 th day of April, 2012. J.B. Veit J.C.Q.B.A. Appearances: Chantelle R. Washenfelder for the Crown Geoff R. Green for the accused