R. v. K.A.M. Date:, 2016 BCPC 48

Citation: R. v. K.A.M. Date: 20160224 2016 BCPC 0048 File No: 100155-2-C Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K.A.M. REASONS FOR JUDGMENT ON APPLICATION PURSUANT TO SECTION 540(9) OF THE CRIMINAL CODE OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. Laura Drake Counsel for the Accused: Mr. Jeremy Knight Place of Hearing: Kamloops , B.C. Date of Hearing: February 4, 2016

Date of Judgment: February 24, 2016 [1] This is an application by K.A.M. for cross-examination of E.G., the complainant in a sexual assault allegation. E.G. is 15 yearsold. Her recorded statement and a transcript of it will be proffered in her place at the preliminary inquiry. The Crown opposes K.A.M.’sapplication to cross examine E.G. on the basis that E.G. is a particularly vulnerable witness. [2] E.G.’s mother, C.G., testified at the application with respect to that vulnerability. She testified that E.G. was an honours withdistinction student at [omitted for publication] prior to the incident.

She took great pride in being a good student. She was involved withthe Youth Mission at her church and was training to become a lifeguard. Her long range plan was to use the lifeguarding as a means ofincome while she attended college and university. She went on a mission with her father to Haiti shortly after the incident. Suchvolunteer activities are representative of her lifestyle prior to April 2015. [3] Following the incident alleged to have occurred on February 28, 2015, E.G. became troubled. C.G.’s younger daughterdisclosed what had happened to E.G.

C.G. tried to talk to her daughter who would only confirm what had happened but did not want tospeak further about the matter. C.G. tried to speak to her more than once but E.G. remained reticent. C.G. describes E.G. as angry. Sherejects communication about the incident and, until recently, refused counselling. C.G. has been successful now in having E.G. see acounsellor at Victim Services, and a cognitive behavioural therapist through Child and Youth Mental Health. [4] The changes C.G. saw in her daughter following the incident involve impulsiveness and anger. E.G. has become unable to dealwith small matters.

She has stopped setting goals. Previously, she was always setting goals and “never really failed”. [5] C.G. described E.G. having a “rough summer”. She would leave the home frequently and not return. She began to experimentwith drugs and self-medicating. Her mother believes she had some overdoses including symptoms of seizures. She was dressingprovocatively and drinking alcohol. Her parents have called the police a number of times to report her missing. This is a significant stepaway from a young girl involved in a youth group, volunteer activities, lifeguarding, and a positive peer group.

E.G. has stopped herinvolvement entirely with the youth group and is no longer engaged with her peers to whom she disclosed this incident in early 2015. [6] C.G. was advised by the principal at [omitted for publication] at the end of October 2015 that E.G. was missing too manyclasses. By this time, E.G. had chosen to return to [omitted for publication]. She was skipping classes and sneaking back into the familyhome. C.G. would find her there in her room by herself. The principal suggested that E.G. go to [omitted for publication] where shecould work at her own pace. E.G. is in Grade 11.

This is a long fall from honours with distinction in a regular school stream. E.G.began to go to [omitted for publication] at the beginning of November 2015. [7] C.G.’s concern about E.G. testifying revolves around E.G. finally starting to access help and finally seeing some progress in herhealing. Her mother believes she is still fragile. She believes that E.G. will be able to testify ultimately but she has to be ready. [8] To exacerbate matters, the day before this hearing E.G. returned home from school in distress. She had seen K.A.M. on thebus. This is the first time she has seen him since the incident.

E.G. said that she was weeping, emotional and distraught. [9] It is evident that counsel for K.A.M. would like to cross examine E.G. for discovery purposes regarding her ability to identifyK.A.M.; to challenge their respective disclosure to each other regarding their ages; and to test her credibility around the events she allegeshappened on February 28, 2015. Preliminary inquiries certainly afford the ancillary benefit of a discovery and, where a statement isproffered under s. 540(7), a justice shall require a person for cross-examination if appropriate. Particularly, Mr.

Knight argued that thereought to be cross-examination in this case because of the flaws that were identified when he opposed the Crown’s application under s.540(7): the officer did not verify E.G.’s understanding of the importance of telling the truth; the officer asked leading questions in someinstances; E.G. spoke with her sister, mother and her friends when she disclosed the incident before making her statement to the policethereby potentially contaminating her evidence. [10] Mr. Knight cited R. v.

Vaughn, 2009 BCPC 142 , 2009 B.C.P.C. 142, 2009 Carswell 1249, to highlight the divergentviews regarding whether cross-examination had been eliminated by the amendments to s. 540 or whether cross-examination ought toflow automatically after establishing that the witness’s evidence was relevant. In Vaughn, the court cited R. c. M.(P.), 2007 QCCA 414, [2007] Q.J. No. 2195 (Que.

C.A.) as follows: 36 Justice Rochette went on to say that this discretion was to be exercised on the basis of whether or not the judge hearing thepreliminary felt that the proposed cross-examination of the child’s testimony was relevant, adding that once relevance was established,then the judge was obliged to allow cross-examination: [50] We may observe first that, upon receiving an application, the justice is not obliged to allow the cross-examination of a witness whohas made a statement that satisfies the requirements of subsection (7). The justice must also deem the testimony to be relevant.

On theother hand, once he or she is convinced of that, the justice has no choice but to order-“shall … require” - the person concerned to beappear for cross-examination… [74] In this context, the Crown’s affirmation that this legislative reform makes cross-examination on a statement contemplated insubsection 540(7) an exceptional procedure does not hold up. In the same way, and with respect, the justice, in the case at bar, went toofar when he said that cross-examination should be denied only exceptionally. [75] Bill C-15A maintains the right to a preliminary inquiry when an indictable offence is alleged.

Similarly, the cross-examination of awitness whose statement has been filed will take place, on request, from the moment it proves relevant, this being a requirement thatconfers on the justice considerable latitude. [76] In requiring of the accused that he or she show “a justiciable cause” for cross-examining a plaintiff and raise, for instance,contradictions in the plaintiff’s statement, rather than trying only to question his or her credibility, the Crown is adding requirements to

subsection 540(9) that are not formulated in it. [11] The Court in Vaughn diverged from the strict view taken by Justice Rochette in R. c. M.(P.) and, particularly, by citing R. v.Uttak, 2006 NUCJ 10 , [2006] Nu.J. No. 11 (Nun. C.J.) as follows: 39 It must be recalled however that at a preliminary hearing, credibility is not in issue and therefore cross-examination of a complainantto attack that person's credibility is neither a relevant nor appropriate use of cross-examination. This was made clear in R c. M.(P.) andalso in R. v. Uttak, where Kilpatrick J. suggests that this

section will mean less cross-examination of complainants in sexual offencetrials: [24] Two conclusions flow from this legislation. Short of a successful Charter attack in a court of competent jurisdiction, cross-examination under s. 540(9) has lost its historical status as a presumptive right.

In the context of the preliminary inquiry's limitedscreening function, cross-examination is no longer a prerequisite to a determination of reliability. [25] The lesser role assigned to cross-examination by s. 540(9) underscores the modest screening function implicit in the determinationof whether evidence is 'credible and trustworthy' under s. 540(7). Parliament did not intend such a determination to necessarily go ahead,as it does at trial, with full cross-examination in every case. This is because the justice at the preliminary inquiry is not expected toresolve issues of ultimate credibility and reliability.

These issues must await the trial where the right of cross-examination and a fullapplication of the rules of evidence will be available to assist in making these determinations. [26] Cross-examination will not be required in every case to determine whether the proposed information meets the objective standard.It is open for the justice to find that, in the circumstances of a particular case, the determination required by s. 540(7) can be met in theabsence of viva voce examination.

Such might be the case, for example, where there is a forensic or medical report available from anindependent professional, having expertise in the area covered by the report.

The nature of the source itself, and the type of informationbeing provided, might be sufficient to meet the objective standard in the absence of any cross-examination. (Emphasis added). 40 Justice Kilpatrick went on to give examples of what sorts of limited circumstances would permit an order under subsection (9): [27] On the other hand, in the circumstances of a particular case, a party may be able to convince the justice that a determination of'trustworthiness' would be assisted by an examination under oath.

Some examples where cross-examination might be required: where amotive to fabricate or misrepresent the truth is attributed to an informant who is a party litigant; where the information is supplied by ajail house informant, a co-accused, or a person of unsavoury character; where proof of identity turns upon a fleeting observation lackingobjectively reliable criteria; or where an allegation rests upon a 'recovered memory'. In the long experience of the common law, evidencegiven under these circumstances is notoriously unreliable. Reliance upon this type of evidence is fraught with risk.

Cross-examinationbecomes necessary to assess whether such evidence is sufficiently credible and trustworthy on an objective standard to merit reception. [12] Such circumstances do not exist in the case before me. I have already determined that E.G.’s statement is both credible andtrustworthy, though only one of those criteria is required by Section 540(7). [13] Having considered the decisions, Judge Skilnick concluded: 41 From a consideration of these authorities, the following principles emerge concerning the making of an order pursuant to section540(9): (

a) Cross-examination of the witness is not a precondition to admissibility of a recorded statement under subsection (7) although theremay be cases where this is required. (

b) There are divergent views as to whether or not an application to cross-examine the child under subsection (9) should routinely beallowed. The point of view supporting this takes the position that trial fairness trumps expediency while the contrary view takes theposition that it must first be demonstrated that the failure to produce the child for cross-examination would result in some sort ofunfairness. The

section accommodates both points of view and allows for a wide discretion on the part of the trial judge, depending onthe facts of each case. (

c) Before allowing cross-examination under subsection (9), the preliminary hearing judge must first decide if the areas to beexplored in cross-examination are relevant and secondly if they are "appropriate". (

d) In this context, relevant cross-examination does not include the issue of credibility because this is not in issue at the preliminaryhearing. (

e) Some examples of relevant areas of cross-examination may include motive to fabricate, coaching, identity of the perpetrator,where the witness is unsavoury, or where the complaint is based on a recovered memory. (

f) A consideration of what is appropriate will include a consideration of the court's role in protecting vulnerable witnesses fromabusive cross-examination. (

g) If the preliminary hearing judge concludes that the proposed cross-examination is both relevant and appropriate, an order undersubsection (9) should be granted. [14] Mr. Knight also referred to R. v. Sweet, 2012 YKSC 37 , [2012] Y.J. No. 76, for the opinion of Judge Nation that it isnaïve to think credibility is not in issue. Credibility is an issue, but only for counsel. It is not an issue for the court.

If that is the sole orpredominant purpose for calling a vulnerable witness for cross-examination on her statement which has otherwise been found credible ortrustworthy, then that would not be an “appropriate” purpose. [15] The Crown argued that the only evidence it will be calling on the preliminary inquiry will be the statement of the complainant

and Constable Richer for the purposes of identity. [16] Ms. Drake referred to R. c. M.(P.) which addressed the parliamentary considerations for the amendments to the preliminaryinquiry provisions. These considerations include reducing exposure of complainants in certain cases: 72 Thus, a radical reform of the preliminary inquiry was excluded by the Ministry of Justice, who, for the time being, favoured asimplification of the remedy in the context of increased protection for witnesses. The federal government’s position in that regard wasconveyed in the same way by the Parliamentary Research Branch, which wrote the following in a legislative

summary prepared inOctober 2001: As a way of reducing the time it takes to bring criminal cases to trial, and as a way of minimizing the extent to which complainants(particularly those in sexual assault cases) are subject to examination and cross-examination, federal and provincial governments haveconsidered ways to reduce the number and duration of preliminary inquiries, including abolishing them altogether. However, it appearsfor the time being that the federal government prefers to narrow the scope of preliminary inquiries and reduce their number.

Theproposals contained in Bill C-15A are part of this approach …. Clause 29 permits a preliminary inquiry judge to receive otherwise inadmissible evidence which the judge considered to be credible ortrustworthy, including a recorded statement of a witness, provided that the party offering the evidence gave reasonable notice to the otherparties or the judge ordered otherwise.

In such a case, however, a party is able to apply to the judge to have the source of such evidenceappear for examination or cross-examination …. [Emphasis added.] [17] The court concluded the following at paragraph 86: 86 When all is said and done, I do not feel it is necessary to add to the text of subsection 540(9) Cr.C. in order to render Parliament’sintent.

In allowing or disallowing the cross-examination requested by the accused, the justice will consider, on the one hand, theaccused’s legitimate interest in preparing his or her defence and bringing out, at the preliminary inquiry stage, the insufficiency or theweaknesses of the Crown’s evidence. Very obviously, the justice will make sure, on the other hand, that the cross-examination requestedby the accused is relevant with regard to the particular situation of the person whose appearance is requested and to all of thecircumstances of the case.

If the relevance is not demonstrated, the request will be denied. [18] The leading case in British Columbia continues to be R. v. McFadden, 2012 BCCA 275 , 2012 B.C.C.A. 275, 2012CarswellBC 1976. The Court of Appeal adopted the finding in M.(P.) at paragraph 86 stating: 73 It is evident that the preliminary inquiry judge was of the view that the utility of s. 540(7) was defeated if the Crown could tender itsentire case on paper, on the one hand, only to be compelled to produce the witnesses for cross-examination, on the other.

I disagree.Section 540(9) does not give the defence carte blanche in seeking to have witnesses called for cross-examination. [19] The Court of Appeal continued at paragraph 74: 74 I think it is reasonable to infer from her Rulings that, had the preliminary inquiry judge turned her mind to the wording of s. 540(9),she would have denied the request to cross-examine any witnesses for discovery purposes in any event. The fact remains, however, thats. 540(9) appears to have been overlooked in her analysis. [20] In R. v.

Horswill, 2015 BCPC 106 , 2015 B.C.P.C. 106, 2015 CarswellBC 1182, the court accepts the test set out in R.v. Vaughn at paragraph 41. Where I diverge from my brothers in these decisions, is subparagraph (

e) which enumerated list, in my view,goes almost entirely to the heart of credibility: “(

e) some examples of relevant areas of cross-examination may include motive tofabricate, coaching, identity of the perpetrator, where the witness is unsavoury, or where the complaint is based on a recovered memory.” [21] Absent the need for cross-examination on areas that are relevant and appropriate for a preliminary inquiry, any ancillary areasof questioning that relate entirely to credibility should not be permitted. [22] Given that these are the areas of cross-examination which the Defence wishes to explore in this case, I am not satisfied that across-examination of E.G. would be relevant or appropriate for a preliminary inquiry, even absent her vulnerability.

I find that she is aparticularly vulnerable witness, and that because her recorded statement is not only fulsome but credible and trustworthy, it would not beappropriate to cross-examine her at this stage of the proceedings. [23] I dismiss the application. ___________________________ S.D. Frame Provincial Court Judge