R. v. Pan, 2021 BCPC 251

Citation: R. v. Pan 2021 BCPC 251 Date: 20211012 File No: 179885-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. FENG PAN RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M.D. MCKIMM Counsel for the Crown: P. Pearson Counsel for the Defendant: J. Whysall and C. Moore Place of Hearing: Victoria , B.C. Dates of Hearing: October 5, 6, 7 & 12, 2021 Date of Judgment: October 12, 2021 Procedural History

[ 1 ] At the commencement of this trial the court entered a voir dire with respect to the admissibility of three out-of-court videotaped statements pursuant to s. 715.1 of the Criminal Code . At the conclusion of that voir dire the statements are ruled inadmissible with reasons to follow. These are those reasons. Facts [ 2 ] The accused operates a preschool and day care centre in the capital region district. The complainant’s are four of his students. He was initially charged with seven offenses against for separate complainants.

At the commencement of the trial the court is advised that the prosecution is not proceeding with respect to two of the complainant’s and a stay of proceedings is entered on counts one through three inclusive. The crown further indicated that it intended to proceed with respect to the two remaining complainants in that their evidence would be primarily that evidence contained in three separate videotaped statements made to the lead investigator.

To best protect the identity of the complainant’s they will be referred to as Complainant One (Com 1) and Complainant Two (Com 2). [ 3 ] The accused is charged with three counts against Com 1. They are: 1. touching Com 1, a person under the age of 16, for a sexual purpose contrary to s. 151 of the Criminal Code ; 2. sexually assaulting Com 1 contrary to s. 271 of the Criminal Code ; and 3. invitation to a sexual touching of a person under the age of 16 contrary to

section 152 of the Criminal Code . At the time of these offences Com 1 was four years of age. [ 4 ] With respect to Com 2 the accused is charged with one count of invitation to a sexual touching of a person under the age of 16 contrary to s. 152 of the Criminal Code . At the time of the alleged offence Com 2 was six years of age. [ 5 ] In December 2019 Com 1 told his mother that the accused had touched his penis on a number of occasions. He also told his mother that he had touched the accused’s penis and it was warm and soft.

He also told his mother that the accused asked him to touch his penis and that this activity took place while the other children were out of the classroom. The complainant’s mother immediately phoned the police and told them that her son made disclosures of sexual offences by the accused and took Com 1 in for a police interview. That interview took place on December 13, 2019 and produced the first statement that is the subject of this voir dire . [ 6 ] Three days later the police conduct a search of the day care centre and the accused’s apartment.

During the search of the accused’s apartment, police find a large number of photographs of Com 2. Police also find a photograph of Com 2 underneath the accused’s pillow. That photo appeared to have been frequently touched and manipulated and stank of what the investigating officer believed to be seminal fluid. It was preserved for subsequent DNA testing but, for reasons that are difficult to comprehend, that testing is never undertaken.

Police also seized a thumb drive from the apartment of the accused that contained approximately 120 photographs of very young boys but it was noteworthy that almost all of them were of Com 2. A search of the day care revealed a photo board with an inordinate number of photographs of Com 2. [ 7 ] It is clear on the evidence of the lead investigating officer that he became firmly convinced of the guilt of the accused. [ 8 ] Two days later a second officer conducted an interview of Com 2. The interview lasted approximately 50 minutes and Com 2 made no disclosures to the officer.

The lead investigator decided that he would try to extract a statement implicating the accused from Com 2 and on January 6, 2020, he conducted a second interview of Com 2. This second interview lasted 48 minutes. During this interview the officer extracted incriminating statements from Com 2. [ 9 ] Both complainants testified during the voir dire and indicated their ability to tell the difference between the truth and a lie. Both complainants watched the video during the trial. Both complainants indicated to the court that they were telling the truth when they made their statements.

Neither complainant told the court during their evidence anything about the alleged offences against the accused. The Crown seeks to have the statements of the complainant’s admitted and form part of the evidence against the accused. Issue [ 10 ] Are the statements of the accused admissible in evidence pursuant to s. 715.1(1) of the Criminal Code ? Analysis [ 11 ] Children are too often the victims of sexual violence. That sexual violence is profoundly destructive to both the child, their families and society. See R. v. Friesen 2020 SCC 9 Those who offend against children need to be brought to justice.

These courts and the citizens they serve demand and expect nothing less. [ 12 ] Regrettably, obtaining evidence of child victims of sexual abuse is a source of enormous difficulty for all participants in the justice system. The criminal procedures and protections enjoyed by those charged with offences are designed to best protect the rights of the individual accused and to ferret out the truth in a world where adult accusers confront adult accused.

It has been understood for decades that those systems and processes work to the unique disadvantage of child victims who, as a result of their lack of development, have great difficulty telling their stories in a court of law. Those same processes and systems also have the awful capacity to inflict even further damage and revictimize child victims. I can do no better than to refer to the words of Madam Justice L’Heureux-Dubé when she writes: Child sexual abuse has been described as the perfect crime (B.

McAllister, “Article 38.071 of the Texas Code of Criminal Procedure: A Legislative Response to the Needs of Children in the Courtroom

(1986) St. Mary’s L.J. 279, at pp. 280-306). The combination of the power imbalance between the victim and the perpetrator, both through the dynamics of age and gender, acts in conjunction with the fact that there are likely no other witnesses to the crime other than the assailant and the young victim. Further, difficulties faced by the young

complainant as she tries to seek justice in the somewhat alien criminal justice system act to limit the attainment of the truth and the courtprocess. Unfortunately, the barriers to Justice faced by child victims remain almost as steadfast today as they have for decades. In fact,despite the increase in child sexual assault complaints since the early 1980s, the ratio of charge to conviction rate remains unchanged. In1986 only one in five of those charged with sexual assault were convicted compared to a conviction rate of four out of five of thoseaccused of other offenses [citation omitted].

As “increasing numbers of sexual assault cases involving children come through the courts,it is become apparent that the traditional treatment of children and their evidence is unsatisfactory” (Young, supra, at P. 11 (Synopsis)).Professor Bala succinctly sets out the problem with which courts are faced: The traditional response of the Canadian justice system to child sexual abuse has contributed to the “double victimization” of children. Because of their social, psychological, economic and intellectual positions, children are the most frequent victims of unwanted sexualacts.

Our legal and social systems failed our children, initially by allowing them to become victims. And when cases of sexual abusehave been dealt with by the legal system, children have too often been victims of “secondary trauma”, produced by the mistreatment inthat system. (“Double Victims: Child Sexual Abuse and the Canadian Justice System” in W.S. Tarnopolsky, J. Whitman and M. Oullette, eds.Discrimination in the Law and the Administration of Justice (1993), 232, at p. 233) R. v.

L.(D.O.) (SCC), 25 C.R. (4th) 285 (S.C.C.) at p. 301-302 [13] Almost 30 years later these courts continue to struggle with that dialectic. The need to determine the truth while still protectingchildren from re-victimization and ensuring their capacity to be heard as opposed to the fundamental need protect our citizens from awrongful conviction. [14] Part of parliament’s response to this issue is

section 715.1 of the Criminal Code. It is designed to assist victims or witnessesunder the age of 18 in give their evidence to the courts. That

section provides: 715.1 In any proceeding against the accused in which a victim or other witness was under the age of 18 years at the time of the offenseis alleged to have been committed, a video recording made within a reasonable time after the alleged offense in which the victim orwitness 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 evidence would interferewith the proper administration of justice. [15] The constitutionality of the

section was determined in in the L.(D.O.) (Supra) decision in 1993. An important element of thesection that allows it to withstand constitutional scrutiny is the fact that the

section provides an overarching judicial discretion to edit oreven refuse to permit the admission of videotaped evidence if to admit part or the entirety of the statement would interfere with theproper administration of justice. L.(D.O.) at para 3. In R. v. F.(C.) (1997) (SCC), 11 C.R. (5th) 209 the Supreme Courtof Canada clarified what it means for the child to “adopt” the videotaped statement. In that decision the Supreme Court of Canadaaccepted the meaning of “adopted” from R. v. Meddoui (1990) (AB CA), 61 C.C.C. (3rd) 345 (Alta. C.A.) they write: In R. vs. Meddoui (1990) (AB CA), 61 C.C.C. (3rd) 345 (Alta.

C.A.) the Alberta Court of Appeal found that hewitness “adopted” her statement within the meaning of

section 715.1 when she recalled giving the statement and testified that she wasthen attempting to be honest and truthful. It was held that the complainant need not have a present recollection of the events discussed.The decision approved the use of the videotape as evidence of the events described, even if the complainant is unable to recall the eventsdiscussed in the tape which formed the basis for that charge. R. vs.

F.(C.) para. 36 [16] During the course of the voir dire both children clearly identified that they recalled giving the videotaped statement and thatwhen they spoke to the police officer they believed they were telling the truth. Although counsel for the accused submitted that theevidence did not establish that the children adopted their prior videotaped statements they conceded during argument that that was not thefocus of their position.

Having considered the evidence of both children given during the voir dire I am entirely satisfied that the Crownhas established on the balance of probabilities that both children adopted their statements. Both children indicated that what they said tothe police was the truth in response to a question by the Crown. Both children demonstrated a clear capacity to testify and to understandthe questions put to them by the Crown and to answer those questions.

I find that the statements are properly adopted within the meaningof s. 715.1. [17] I am equally satisfied that both statements were taken within a reasonable time after the alleged offences. The evidenceestablishes that, if the offences occurred, they occurred in the fall of 2019 and therefore something less than four months prior to themaking of the videotaped statement. Considering, as I must, the circumstances of the offences and the ages of the children, I find that theCrown has met the burden of establishing that this delay is reasonable in the circumstances. R. v.

P.S. 2019 ONCA 637 at para. 20-29. [18] The principle issue for decision and, regrettably, where the Crown fails in this application, is to satisfy the court that theadmission of the videotaped statement would not interfere with the proper administration of justice. This element of s. 715.1 is the veryfoundation of its constitutional validity and requires careful consideration. Judicial discretion in this instance involves the balancing ofthe probative value of the witnesses statement is against its prejudicial effect.

Prejudicial effect does not mean that it makes convictionmore likely but rather that it prejudices the fairness of the trial process by, for example, inviting improper reasoning. In L.(D.O.) MadamJustice L’Heureux-Dubé articulates a number of factors the court must consider in deciding whether or not to exclude the videotapedstatement:

a) the form of questions used by any person appearing in the videotaped statement;

b) any interest of any one 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 is past and the making of the tape and the present ability of the witness to effectively relate to the events described. R. v. L.(D.O.) at para 65 It can be seen that consideration of the admissibility of videotaped statement requires a careful analysis of all facets of that statement.

a) The form of questions used by any other person appearing in the videotaped statement [ 19 ] In this case, police issued a public statement that no one with children who attended the day care in question should question their children about whether or not the child was a victim of abuse because highly qualified police officers would conduct those difficult examinations. This task fell to the lead investigator. He testified that he had been specially trained in a carefully designed interview process called the Step Wise Interview.

He had been sent to a course to specifically learn how to properly interview children in order to obtain reliable evidence. He agreed that the course is designed specifically to create reliable statements from children. He was argumentative when counsel put it to him that he failed to properly follow the Step Wise Interview process, though he clearly did not.

Generally, he dismissed his training in the Step Wise Interview process as simply a “tool among other tools in his kit bag”. [ 20 ] He did agree that when interviewing children, complex questions are to be avoided, that leading questions are to be avoided, that misleading questions are to be avoided and questions that contained assumptions were to be avoided. He agreed that most of these forms of questioning had the potential to taint the memory of the child.

While he insisted throughout his evidence that there were many other techniques available to investigating officers, he failed to articulate any other such system and confirmed that he had not been trained in any other such system. He also took the position that the Step Wise Interview process was not appropriate for children ages four and six.

He did agree that leading and suggestive questions can lead to receiving false information. [ 21 ] He confirmed that he was trained to ensure that a child giving a statement would promise to tell the truth and that that was an important part of ensuring the child understood the seriousness of the statement he or she was giving. In spite of that he failed entirely to cover this issue.

Similarly he did not tell the child that it was permissible for him to stop or indicate that he did not understand or remember any facts put to him by the police officer. [ 22 ] On top of all of this as it relates to Com 1 he made it quite clear that his job was to get him to say what he had said previously to his mother, not to determine the truth. He said, “All I knew was that he had disclosed to his mom that he had touched his penis. I was just getting him to tell me what he had told his mom.” He repeated this assertion on at least three separate occasions.

At no time did he articulate that, in fact, his job was to determine the truth from the child not simply what he had told his mother. The lead investigator conceded that he had not actually even spoken to his mother about the circumstances around which she had obtained his statement. [ 23 ] It was apparent in cross examination that the lead investigator had come to a firm and fixed conclusion that the accused was guilty of sexual offences against the complainant’s.

He had lost his objectivity. [ 24 ] Com 2 was initially interviewed by a junior officer who had also been fully trained in the Step Wise Interview process. She confirmed the importance of using the Step Wise Interview technique, and that she had specifically refreshed her mind about the training she had received in order to conduct a careful and appropriate interview in order to obtain reliable evidence. She confirmed that the Step Wise system is appropriate for children ages four and six. She conducted a 50 minute interview of Com 2 which is a textbook example of an appropriate and child focused interview.

She obtained no disclosures. [ 25 ] It appears that the lead investigator, unhappy with that outcome, insisted on re-interviewing Com 2. His 48 minute interview comprises 75 pages of transcript. The interview is laced with leading questions. It is laced with compound questions. A clear example of this is found in the following exchange some 51 pages into the transcript: Officer : yeah, okay. Um did [accused] ever touch your penis? Com 2: Ah, no. No. Officer: No? Com 2: yeah Officer: okay. What do you see over there? You seem distracted. Com 2: Ah, I got a, it’s on the… Officer: oh my little mark on the wall, yeah

Com 2: yeah, a white spot along here Officer: so [name of com 2] Com 2: yeah Officer: did [accused] ever ask you to touch his penis? (The officer waits for a long uncomfortable pause.) Com 2: no.

Wait, I’m a little bit, a little bit but I still don’t, I still, I still don’t touch it because I, I know some things going a bad yet going to happen… Officer: okay Com 2: … I know some things going up bad get happen… Officer: okay Com 2: and, and you’re not supposed to… Officer: Right Com 2: … Touch, yeah Officer: Yeah Com 2: you, only your moms and dads and use so… Officer: you’re smart Com 2: … Can touch it Officer: you’re smart, I’m really impressed. Com 2: I know Officer: but he did ask you a couple of times?

Com 2: yeah Officer: yeah Com 2: and I, I, I didn’t… [ 26 ] In that small excerpt of the transcript of the interview it is apparent that the officer is leading the child, asking the child compound questions, rewarding the child for answers he prefers and not accepting any other answer from the child. This is but one example of many such frailties contained throughout the statement. In my view, considering the forms of questions and the way in which the interview was conducted augers heavily against admission.

All of the weaknesses of the interview process dramatically undermines the reliability of these very young children’s evidence. There is no doubt the officer had firm grounds to believe that these children were the victims of sexual abuse at the hands of the accused. There is no doubt that he firmly believed the guilt of the accused, sadly that left the statements so weakened as to have virtually no evidentiary value in the final assessment of the case.

b) Any interest of anyone participating in the making of the statement [ 27 ] Here too the lead investigator conceded with respect to Com 1 that he was entirely satisfied that the accused was guilty and had sexually abused that complainant but furthermore that his only job was to extract from Com 1 what he had told his mother. At no time did he indicate his understanding of the importance of extracting reliable and truthful evidence from Com 1 or Com 2. This factor to augers heavily against the admission of the videotaped statement.

c) Consideration of factors (

c) through (j) [ 28 ] None of the other factors articulated above suggest that the Court ought to exercise its discretion not to admit the videotaped statements. Regrettably the overwhelming frailties captured by the first two of those factors demand they not be admitted. Considering all of the frailties of the interview process the statements have virtually no weight.

On the other hand they contain suggestions that the accused has offended against these children which, if one were not adequately skilled in understanding the frailties of child witnesses, make it difficult to overlook the power of those allegations. The children in the statements both state unequivocally that the accused never offended against them and state unequivocally that he did. Because the allegations attract such a visceral response, the court must be cautious to ensure that evidence of limited value might be relied upon to sustain an entirely improper conviction.

The Children were, like all children of this age, cute and adorable and likely to attract great sympathy which is not a proper consideration in assessing their reliability or the reliability of their statements. [ 29 ] The Crown argues forcefully that all of these frailties truly go to the weight that ought to be accorded the statements. They argue that the court should favour admissibility, and allow the trier of fact to be properly instructed and properly weigh the evidence against the frailties articulated above.

I agree with that proposition, if only because it is so critically important that the courts afford children a

forum in which to be heard. I also believe it will be a rare case where statements, such as these, are of such limited evidentiary value thatthat factor alone, the extremely limited weight to be attached to the statements, will preclude their admission. This is one of those rarecases. [30] Crown Counsel points out that the fact that this trial is one conducted by a judge without a jury augers in favour of admissibility.I am troubled by that proposition. There are other means by which children’s voices can be heard.

In particular I consider theadmissibility of otherwise hearsay statements of child witnesses when they are necessary and reliable. R. v. Khan (1990) (SCC), 59 C.C.C. (3rd) 92 (S.C.C.) Admitting statements of limited or no evidentiary value may well preclude the Crown from seekingto tender otherwise admissible evidence. [31] In this case the mother of Com 1 gave powerful and compelling evidence with respect to the spontaneous statements made by herson to her regarding the abuse he suffered at the hands of the accused.

If the 715.1 statements are excluded that may well establish thatthe statements made to the mother are now necessary. It is reasonable to assume that the admission of the compromised statement ofCom 1 will preclude the admissibility of what other it might otherwise be admissible evidence if the statement is in fact excluded.

It isimpossible for any trial judge to determine the consequences of the exclusion, in rare cases, of videotape statements but it certainly seemscontrary to the interests of justice that statements that could never properly found a conviction might well be admitted and thereby causethe exclusion of other potentially admissible and persuasive evidence. [32] It is for this reason that I do not believe that the fact that this matter is being heard by a judge without a jury augers in favour ofthe admissibility of videotape statements. [33] Considering all of the above the Crown has not met the burden to establish on the balance of probabilities that the admission ofthe videotape statements would not interfere with the proper administration of justice.

I find the videotape statements inadmissible. __________________________ The Honourable M.D. McKimm Provincial Court Judge