R. v. B.C. Date:, 2011 BCPC 285

Citation: R. v. B.C. Date: 20110929 2011 BCPC 0285 File No: 218099-2-KC Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. B.C. RULING ON APPLICATION OF THE HONOURABLE JUDGE M. F. GIARDINI Counsel for the Crown: S. Smith Counsel for the Defendant: M. Fortino Place of Hearing: Vancouver, B.C. Dates of Hearing: May 13 & 16; 2011 Date of Judgment: September 29, 2011 INTRODUCTION [ 1 ] This is a ruling on B.C.’s application to have a videotaped statement taken by the police from his young son entered into evidence. [ 2 ] B.C. is charged with several offences arising out of interactions with his wife, L.C., and his son, T.C. Specifically, B.C. is charged with: (

a) uttering a threat to L.C. to cause death or bodily harm to her between May 31, 2010, and the August 1st, 2010; (

b) assaulting L.C. on or about August 28, 2010; (

c) assaulting T.C. on or about August 31, 2010; (

d) assaulting T.C. on or about September 12, 2010; (

e) assaulting T.C. on or about September 13, 2010. The circumstances regarding these alleged offences were reported to the police by L.C. in mid-September 2010. APPLICATION AND EVENTS LEADING TO APPLICATION [ 3 ] At the beginning of the trial B.C. applied to have a videotaped statement given by his son, T.C., to the police on April 27, 2011, admitted as evidence in the trial. In accordance with the decision in R. v. Khelawon , 2006 SCC 57 (CanLII) , [2006] S.C.J.

No. 57 , B.C. seeks to have the videotaped statement admitted for its truth pursuant to the principled exception against the admission of hearsay evidence. [ 4 ] B.C. advised the court that as of February 2011, he did not know where his son was. At the trial confirmation court appearance,

no witness list was provided. On April 4, 2011, defence counsel received a letter from the Crown in answer to his request for a witness list. In that letter the Crown wrote it did not know where T.C. was and did not have an address for L.C. About a month later, on May 10, 2011, defence counsel received a transcript of T.C.’s videotaped interview from the Crown. He was not given a copy of the video because it had information about L.C.’s and T.C.’s address. After giving an undertaking, defence counsel viewed the video on May 11, 2011.

On May 10, defence counsel also asked the Crown to make T.C. available for a pre-trial interview. He was told later that day that the Crown would not make T.C. available for a pre-trial interview but it would facilitate service of the subpoena. Defence counsel applied for a subpoena on May 12, 2011, in the Surrey Provincial Court Registry, but that request for a subpoena was denied because he had no address. BACKGROUND ALLEGED OFFENCES [ 5 ] L.C. and B.C. are husband and wife. They lived together for a period of time. In June 2006, a month or so after the birth of their son T.C., they got married.

At the time the events which gave rise to these charges occurred, T.C. was just over four years old and living with his mother and father. [ 6 ] L.C. alleges certain events occurred between approximately May 2010 and mid-September 2010 which eventually led her to report to the police. Those events are briefly described below: 1. Threats to L.C. – L.C. testified that some time in May or June 2010 she, B.C., and their son were on their way to Birney Park in Burnaby. B.C. was driving. She was having a discussion with the accused about how he was speaking to their son.

L.C. said the accused became very frustrated and said words to the effect that, if she did not stop, he would bash her head into the dashboard. During that same discussion he apparently also told her that if she did not shut up he would pull over to the side of the road and smash her head into the dashboard. 2. Assault of L.C. – L.C. testified that on or about August 26, 2010, between 8:00 p.m. to 9:00 p.m. she had a discussion with the accused. In hypothetical terms, she asked whether he would be happier in a more compatible relationship and what custody arrangements might be made if they were to break up.

L.C. said when the discussion ended, the accused walked away then returned to the living room area about 10 minutes later. She said the accused placed his hands around her throat and applied pressure so that she could not breathe. The accused also placed his hands on her arms and squeezed hard. He did the same thing to her thighs. He then again placed his hands on her throat as before. 3. Assault of T.C. – L.C. testified that on August 31, 2010, she and the accused were in their apartment having a discussion. Their son was running down the hallway, playfully screaming. Their son crashed into the accused’s leg.

The accused pushed their son to the ground and cuffed T.C. on the face with the back of his hand. 4. Assault of T.C. – L.C. testified that on September 12, 2010, there was another incident involving their son. She was cleaning the house; the accused was talking to her; and T.C. was all over the place playing with toys and touching things on a table. The accused told T.C. to stop grabbing things. He said that a number of times. Apparently, T.C. did not stop and the accused became irritated. He shoved T.C. to the floor and slapped him across the face. 5.

Assault of T.C. – L.C. testified that on September 13, 2010, there was a further incident involving T.C. She was in the kitchen cooking and the accused was standing nearby. T.C. was in the living room. At one point T.C. began playing with a fabric belt-like tie from one of L.C.’s dresses. T.C. was twirling the fabric tie over his head. According to L.C., the accused told T.C. that if he did not stop twirling the tie around he would whip him with it. T.C. continued twirling.

The accused apparently pulled the tie away from T.C., pushed him on the torso to the floor, and whipped him five to ten times with the fabric tie. [ 7 ] On the evening of September 13, 2010, L.C. left the family home with T.C. and did not return. She went to a transition house and a few days later reported to the police. The police interviewed L.C. at that time but they did not take any statement from T.C. [ 8 ] After L.C. and T.C. left the family home, arrangements were eventually made which allowed the accused to have access to T.C. in the presence of a third party.

Between November 2010 and mid-March 2011. there were a number of supervised access visits between the accused and T.C. After mid-March 2011, L.C. and T.C. moved away and the accused lost contact with them. L.C. maintained that the woman who had supervised the accused’s visits with T.C. had her contact information. As well, L.C. said she told victim services that she had moved. POSITION OF THE PARTIES Defence Submission [ 9 ] B.C. submits that T.C. was not interviewed by the RCMP until April 27, 2011, when the videotaped statement was taken. B.C. says he made efforts to subpoena T.C. but was not successful.

He also made efforts to have the Crown make T.C. available for a pre- trial interview but the Crown declined to do so. Moreover, B.C. argues he had no access to T.C. after he learned about the videotaped statement and had no way of getting in touch with him. [ 10 ] B.C. asks the court to admit into evidence T.C.’s videotaped statement as a principled exception to the hearsay rule. He submits the statement meets the necessity and reliability criteria set out in Khelawon .

He further submits there is a lower threshold to be met when it is the defence, rather than the Crown, that applies for a hearsay statement to be admitted into evidence. [ 11 ] B.C. acknowledges that he wishes to tender the statement for the truth of its contents. Clearly, the statement is a hearsay statement. However, he submits the court’s truth-seeking function requires that the statement be admitted. B.C. maintains the admission of the statement is necessary to allow him to make full answer and defence. He asserts it is material and relevant evidence.

If the statement is admitted it will be up to the court to determine what weight should be given to it. [ 12 ] B.C. acknowledges that one of the concerns regarding hearsay statements is that their reliability cannot be tested through cross-

examination. However, he maintains the court can asses the reliability of the evidence because the court has had the opportunity to view the videotaped statement. The court can thus see T.C. and the circumstances in which he gave the statement. That will assist the court in assessing the truthfulness of the statement T.C. made to the RCMP officer. [ 13 ] B.C. stresses that the videotaped interview is relevant because it goes to determine whether the Crown has established the alleged assaults against T.C. B.C. notes that the Crown has led the allegations of the assaults through the evidence of L.C., T.C.’s mother.

He submits what T.C. had to say about what happened or what his father did is relevant. Crown’s Submissions [ 14 ] The Crown argues the evidence the defence seeks to have admitted is not relevant and does not meet the test set out in Khelawon for such applications. As to relevance, the Crown argues that the statement taken from T.C. was not contemporaneous with the alleged assault. Moreover, the questions asked by the RCMP interviewer were so general and so broad that the answers T.C. gave cannot be said to relate to the time period of the alleged assault.

The Crown acknowledges that the statement in question was taken from an alleged victim but, in order for the statement to be admitted into evidence at trial, it must relate to the allegations before the court. The Crown notes that T.C.’s attention was not directed to the relevant time period. He was asked questions such as, “Tell me about Daddy. Tell me about Mommy”. The Crown says those questions and others like them were far too broad and did not elicit any relevant evidence. [ 15 ] In regard to the necessity and reliability factors set out in Khelawon , the Crown submits the following.

First, the Crown submits that necessity has not been proved. Specifically, the Crown submits that the efforts made by the accused to procure T.C.’s attendance have not been sufficient. The Crown notes that the accused did not ask the police take a statement from T.C. This is a different proposition than defence counsel’s request to interview the child. The Crown agrees with the timeline provided by the accused. However, the Crown argues it did not receive the videotaped statement from police until Friday, May 6, 2011. It then acted promptly in bringing the matter to defence counsel’s attention.

Given the fact that T.C. is four years old, the Crown is not calling him as a witness. Moreover, even if it were, a witness is not obliged to speak to defence counsel. The Crown says that it was not up to the Crown to produce the child for an interview with defence counsel. [ 16 ] Second, the Crown submits it is not in a position to provide the address of the complainant because it was given to the Crown in confidence. The Crown says it is aware of situations where subpoenas have been granted, even though the person seeking the subpoena did not have a specific address for the person being subpoenaed.

In essence, the Crown argues that the efforts made by the accused to subpoena T.C. were not sufficient. Third, the Crown points out that the accused had access to T.C. over a number of months through supervised visits. In

summary, the Crown says T.C. was available and with due diligence, the defence could have arranged for him to be called as a witness. In these circumstances necessity has not been established. [ 17 ] On the issue of reliability, the Crown argues that the cases relied on do not go so far as to invite the abandonment of an inquiry on the issue of threshold reliability. The Crown acknowledges that Khelawon sets out the indicia of reliability. The Crown further acknowledges that T.C. has no motive to make false statements. However, the Crown submits there are a number of reasons why T.C.’s statements to the RCMP officer are not reliable. Those reasons are: (

a) T.C.’s statements do not emerge naturally and without prompting; (

b) When questions were asked about T.C.’s parents and his home life, T.C’s response did not come naturally; he had to be prompted by the interviewer; (

c) The responses to questions were not readily forthcoming; (

d) T.C.’s statement was not taken immediately after the alleged assault but instead almost seven months later. This delay is of particular concern when assessing the reliability of a child’s statement; (

e) It is not clear from what T.C. what says (particularly about the yelling) whether it is first hand or what he was told; (

f) It is not clear what T.C. himself observed; (

g) There was nothing in the interview or in T.C.’s response that identified or focused on a relevant location or relevant time period; (

h) T.C. was not asked whether he would tell the truth. The Crown acknowledges that such a discussion would be limited given T.C.’s age, but at the time of the interview this was not even touched on. (

i) T.C. is clearly “all over the place” while giving his statement. [ 18 ] The Crown says, in light of these concerns, its ability to cross-examine in relation to T.C.’s perception and memory is crucial in determining whether the statement is reliable. The Crown argues that watching and listening to the videotape is not enough to allow a proper assessment of T.C.’s statement. The Crown submits there are significant concerns regarding the completeness and accuracy of the statements made by T.C. In

summary, the Crown submits the test for threshold for reliability has not been met. APPLICABLE LEGAL PRINCIPLES [ 19 ] It is trite law and a basic rule of evidence that all relevant evidence is admissible. As noted in Khelawon , there are a number of exceptions to this basic rule created by the courts over time. One of the main exceptions is the rule against hearsay. [ 20 ] In R. v. Khan , 1990 CanLII 77 (SCC) , [1990] 2 S.C.R. 531 , the court indicated that a flexible approach should be adopted to the reception of hearsay evidence hearsay evidence of a child’s statement in cases where the evidence meets the requirements of necessity and reliability. In Khelawon , the court noted:

Just as traditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must be founded the overarching principled exception to hearsay. When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth.

If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gate-keeper in making this preliminary assessment of the "threshold reliability" of the hearsay statement and leaves the ultimate determination of its worth to the fact finder. (para. 2) [ 21 ] In R. v. Giles 2007 BCSC 1894 , MacKenzie J. reviewed the authorities on the principled exception to the hearsay rule. I will not repeat her review in its entirety or refer to the cases cited, instead I summarize the salient points below: (

a) The admissibility inquiry must be tailored to the particular dangers presented by the hearsay evidence sought to be introduced; (

b) Necessity and reliability are not to be considered in isolation, they may intersect and impact upon each other; (

c) The context giving rise to the need for the hearsay evidence may impact upon the degree of reliability required to justify its submission; (

d) All relevant factors should be considered on the admissibility inquiry including the presence of supporting or contradictory evidence. The factors to be considered cannot be simply categorized in terms of threshold and ultimate reliability; (

e) The focus of an admissibility inquiry is on the dangers of admitting hearsay evidence and the available means of overcoming them; (

f) The goal is to ascertain whether the dangers are sufficiently overcome so as to justify receiving the evidence as an exception to the general exclusionary rule; (

g) The focus may be on the circumstantial guarantees of trustworthiness such as how the statement came about, whether other circumstances tend to show that the statement is true or on the presence of adequate substitutes for testing the evidence; (

h) The question on threshold reliability is whether the trier of fact will be in a position to rationally evaluate the truth of the evidence; (

i) Threshold reliability is met where a variety of factors cumulatively yield sufficient circumstantial guarantees of trustworthiness; (

j) A circumstantial guarantee of trustworthiness is established where there are circumstances which substantially negate the risk that the declarant was either untruthful or mistaken. [ 22 ] MacKenzie J. also reviewed the factors to be considered in determining reliability: (

a) Was the statement given under oath, solemn affirmation or solemn declaration? (

b) Was the witness told of the penalties for making a false statement? (

c) Was the statement contemporaneous with the event? (

d) Can the trier of fact observe the witness’ delivery of the statement? (

e) Has there been an opportunity for cross-examination? (

f) Did the declarant have a motive to lie? (

g) Is the demeanour of the witness obvious? (

h) Were leading questions asked? (

i) Is the statement internally consistent? (

j) Is the statement corroborated by extrinsic evidence? [ 23 ] The other requirement for the application of principled exception to the hearsay rule is necessity. In Giles , MacKenzie J. also reviewed the factors that go into a consideration of necessity; namely: (

a) The applicant must show it is necessary to lead the proposed evidence in hearsay form; (

b) The necessity component is not equated with the unavailability of a witness but may be met on varied bases; (

c) The component of necessity has two elements: (

i) The witness’ evidence must be unavailable before the court, and (ii) Evidence of a similar content and quality must not be available from another source. This criteria cannot be lightly satisfied and the ultimate question is whether the evidence is reasonably necessary. (

d) The concept of necessity must be given a flexible definition capable of accompanying diverse situations. However, it must be

established on the facts of each particular case. (

e) Necessity should not be approached on the basis that the case must fit into a pre-ordained category. The issue is whether, on the facts before the trial judge, direct evidence is not forthcoming with reasonable effort. (

f) In deciding the issue of necessity, a court may consider whether the proponent of the evidence made all reasonable efforts to secure the evidence of the declarant. [ 24 ] In R. v. McCrory 2001 BCPC 165 , Kitchen P.C.J. dealt with a similar application regarding the admissibility of the evidence of an 11 year old complainant. The three accused in that case were charged with living on the avails of prostitution, assault and sexual assault, as well as other offences against the complainant. The complainant had given a videotaped statement but then returned to Oregon.

The Crown sought to have the statement admitted into evidence because the complainant’s foster mother refused to allow her to testify. Kitchen P.C.J. refused the Crown’s application after holding an admissibility voir dire . He concluded that the Crown had not met the onus of showing that the statement was reasonably necessary and that it had exercised due diligence in attempting to secure the complainant’s attendance. [ 25 ] In the course of his analysis, Kitchen P.C.J. reviewed the element of necessity.

He noted that there had been surprisingly little judicial consideration of the necessity issue compared to the many discussions of reliability. He reviewed the case law as well as the steps taken by the Crown to secure the complainant’s attendance. In that case, the Crown had initially arranged to have the complainant’s evidence heard by video conference but abandoned that plan. The police in Vancouver contacted police in Portland and were referred to the complainant’s foster mother. The police telephoned the complainant’s foster mother who told them she would not permit them to contact the complainant.

Kitchen P.C.J. concluded that the complainant was willing to testify; she was apparently competent to testify; and she had shown a maturity that would indicate she could handle the trauma and stress of a court appearance. He stated: “Much, much more should have been done to attempt to secure her attendance by one of the means I have suggested. Perhaps if all of that were done, it would be unsuccessful.

But at this stage, the Crown has not met the onus of showing on balance that Green’s videotaped statement is reasonably necessary and that due diligence has been exercised in attempting to secure her personal attendance.” Accordingly the application was dismissed. [ 26 ] In this case, B.C. relies on R. v. Kimberley , 2001 CanLII 24120 (ON CA) , [2001] O.J. No. 3603 , for the proposition that where the defence seeks to admit hearsay evidence, the concerns about trial fairness and the accused’s right to make full answer and defence are not so concerning.

Accordingly, the trial judge has the discretion to relax the application of the rule regarding the admission of hearsay evidence sought to be tendered by the defence. I have reviewed the Kimberley case and distilled the following propositions from that case: (

a) It is well established that although the rules of evidence generally apply equally to the Crown and defence, a trial judge can relax those rules in favour of the defence where it is necessary to prevent a miscarriage of justice; (

b) The cases that support this proposition do not, however, invite an abandonment of the threshold reliability inquiry where hearsay evidence is tendered by the defence; (

c) The cases recognize that fairness concerns may sometimes militate in favour of admitting defence evidence. Those concerns may tip the reliability/necessity analysis in favour of the accused. (

d) Where hearsay evidence cannot pass the threshold for reliability standard, the danger which justifies the exclusionary is very much in existence. [ 27 ] In the Kimberley case, the court concluded the appellants had failed to demonstrate that the circumstances surrounding the making of the hearsay statements offered any basis for a finding that those statements were sufficiently reliable to warrant their admissibility. Accordingly, the statements were not admitted. ANALYSIS [ 28 ] I begin my analysis by considering the reliability of T.C.’s videotaped statement.

Before doing so, I reviewed both the transcript and the videotaped interview. As noted in Giles and other cases, the question on threshold reliability is whether the trier of fact will be in a position to rationally evaluate the truth of the evidence. For the reasons that follow I have concluded that the reliability of the proffered statement is compromised: (

a) The statements were made approximately seven months after the alleged assaults. (

b) Neither the interviewer nor T.C. focussed on the relevant time period. T.C. said his daddy yelled at his mommy a long time ago. That statement is simply not specific enough to allow one to conclude it referred to the summer/fall of 2010. (

c) T.C. could not relate the “yelling” to a specific event or events. He was asked why his daddy yelled and he said: “I don’t know why”. There is no direct connection in his statement to any of the allegations before the court. (

d) T.C. said “Daddy yells a lot but that’s it ....” This is a specific statement on which the accused wants to rely. There is nothing preceding or following this statement that clarifies what “that’s it” means to the child. (

e) A review of the transcript and the videotape clearly establishes that it was difficult for T.C. to focus. He was literally and figuratively bouncing off the walls. His demeanour on the video and the obvious inability to direct his attention to the questions being asked raise serious concerns about the accuracy and reliability of his answers. [ 29 ] I next turn to the question of necessity, namely, has the accused shown that it is necessary to lead the videotaped statement? Even if the statement was reliable, I find that the accused has not shown it is necessary to admit the statement in hearsay form. First, the

witness is not unavailable. It is my understanding that T.C. lives in the Lower Mainland with his mother. Second, the accused has not taken sufficient steps to secure T.C.’s attendance. It should be noted that by making these observations I am not ruling on T.C.’s competence to testify. [ 30 ] B.C. had access visits with T.C. for a number of months from November 2010 to March 2011. If he wanted to arrange for an interview with counsel or to have him appear as a witness in these proceedings he had ample opportunity to arrange it.

CONCLUSION [ 31 ] I find that the requirements of reliability and necessity have not been established by the accused. Accordingly, the accused’s application to enter T.C.’s videotaped statement into evidence for the truth of the statement is denied. The trial will proceed without that evidence. ________________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia