R. v. K.S.T., 2018 BCPC 57

Citation: R. v. K.S.T. 2018 BCPC 57 Date: 20180227 File No: 24560-01 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. K.S.T. REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE J.T. DOULIS

Section 486.4 Publication Ban Counsel for the Crown: Purewal, H. and Reed, A. Counsel for the Defendant: McCarthy, J. Place of Hearing: Smithers , B.C. Date of Hearing: November 1, 2, 3, 2017, January 8, 29, 31, 2018 Date of Judgment: February 27, 2018 Introduction [ 1 ] K.S.T. is before the Court charged under Information 24560-2-C with sexual assault, sexual interference, invitation to sexual touching and exposure of genitals. All offences are said to have occurred between January 1, 2013 and December 27, 2016, at [omitted for publication], or Prince George or Prince Rupert, B.C.

The complainant in each count was K.S.T.’s great niece, S.H. [ 2 ] The Crown proceeded by indictment, and K.S.T. elected to be tried by a Provincial Court Judge. [ 3 ] This is the Crown’s application brought pursuant to

section 715.1 of the Criminal Code to admit into evidence the video

recorded statements of Crown witnesses, S.H. and S.D. [4] S.H. was almost nine years old at the beginning of the offence period encompassed by Information 24560-2-C and 12 at the end. S.H. was just shy of her 13th birthday when she gave her video recorded statement to Constable Simone Heuberger in Smithers, B.C. onJanuary 7, 2017. S.H. was [omitted for publication] days old and in Grade 8 when she testified at trial. [5] S.D. was between [omitted for publication] days during the period encompassed by Information 24560-2-C.

She was [omittedfor publication] days old and in Grade 6 when she gave her video recorded statement to Constable Simone Heuberger in Smithers, B.C.on January 8, 2017. She was [omitted for publication] days old and in Grade 7 when she testified at trial. [6] There was no issue of either S.H. or S.D.’s capacity to understand and respond to questions on the 715.1 voir dire. Bothwitnesses testified upon promising to tell the truth. [7] On the first day of trial, November 1, 2017, Mr. McCarthy advised the Court that identification is not in issue in that the personwho stands accused of these offences is K.S.T. Mr.

McCarthy also confirmed K.S.T. took no issue the person who would be referred tothroughout the trial as “[omitted for publication]” was in fact K.S.T.

Nature of the Application [8] The Crown seeks to admit S.H. and S.D.’s recorded statements pursuant to s.715.1 which provides that: In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence isalleged to have been committed, a video recording made within a reasonable time after the alleged offence, 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 in evidence would interferewith the proper administration of justice. [9] I have received and reviewed the following case authorities: R. v.

A.G.B. (No. 3), 2011 ABPC 260 R. v. Aksidan, 2006 BCCA 258 R. v D.T., 2017 ONSC 1953 R. v. F. (C.), (SCC) R. v. G. (S.), 2007 CarswellOnt. 2570 R. v. J.F.A., [1993] O.J. No.1484 (ONCA) R. v. J. (J.), 2008 ONCA 133 , R v. S. (J.), 2017 ONSC 6363 R. v. L. (D.J.), 2011 ONSC 2005 R. v. L. (D.O.), (SCC), 1993 CarswellMan 24 R. v. Lucas, 2001 BCCA 361 R. v. M.S.J., 2016 NWTCA 2 R. v. Meddoui, (AB CA), [1990] A.J. No. 1070 (ABCA) R. v. Quash, 2013 BCSC 2498 R. v. R.E.M., 2002 BCSC 162 R. v. R.A.H., 2017 PECA 5 R. v. Rodrich, 2009 CarswellOnt 5922 R. v. S. G., (ON SC) R. v. S.M., 1995 ABCA 198 R. v. S. (P), (ONCA) R. v.

Scott, (ON CA), [1993] O.J. No. 3040 (ON CA) R. T.J.A., 2016 OJ No. 2876 (Ont. C.J.) R. v. T.R. J. 2014 BCSC 1611 R. v. Toten, (ON CA), [1993] O.J. No. 1495

R. v. Untinen, 2017 BCCA 320 R. v. Walsom, 2017 ONSC 2159, 2017 CarswellOnt 5538 Evidence on the Voir Dire [10] The Crown called the following five witnesses on the admissibility voir dires: Corporal Owen Smith, the lead investigator on this matter; Constable Simone Heuberger, the officer who took the statements from S.H. and S.D.; R.A.H., the mother of S.H. and S.D.; S.H., the Complainant; S.D., the Complainant’s younger sister.

By affidavit, David Bailey, the manager for the Highliner Plaza Hotel & Conference Centre in Prince Rupert, B.C [11] The Crown’s application for the admissibility of S.H. and S.D.’s video recorded statement was heard in the two “nested” voirdires which took place on November 1, 2, and 3, 2017, and on January 8, 29, and 31, 2018. I reserved my decision on January 31, 2018. These are my reasons for judgment on both applications. Evidence of R.A.H. [12] R.A.H. is S.H. and S.D.’s mother. S.H.’s and S.D.’s biological father is J.D.

S.H. has no relationship with J.D. [13] Since May 2017, R.A.H. has lived in [omitted for publication] with her partner, R.G. S.H. and S.D. live with R.A.H.’s mother. Before moving to [omitted for publication], R.A.H. lived in Smithers, B.C. She is related to K.S.T. through her father, and believes he isher uncle. R.A.H. calls K.S.T. ‘[omitted for publication]”. K.S.T. is married to M.G. K.S.T. and M.G. reside at [omitted forpublication] B.C. [14] R.A.H. said that in 2007 or 2008, S.H. and S.D. began spending time at K.S.T. and M.G.’s residence while R.A.H. was in camp.

S.H. and S.D. spent every other weekend at K.S.T. and M.G.’s residence, if not every weekend. S.H. and S.D. also spent some schooldays at K.S.T. and M.G.’s residence, when M.G. was ill and they helped care for her. [15] R.A.H. confirmed that S.H. and S.D. would go on trips with K.S.T. and M.G. to Prince George, Prince Rupert and Terrace. Sometimes these trips were for a couple of days, sometimes they were just over night.

S.H. and S.D. last went with K.S.T. and M.G. toPrince Rupert in November 2016. [16] R.A.H. says that in December 2016, S.H. disclosed to her that she had been sexually abused at K.S.T. and M.G.’s residence sinceshe was nine. This disclosure arose during an argument over R.A.H. restricting S.H.’s access to Facebook. S.H. became angry and saidshe wanted to go stay with her dad. R.A.H. asked her why she would say something like that and S.H. said she doesn’t feel safe with herfamily now.

R.A.H. described their ensuing conversation as follows: She said remember when you told me if anything happened that happened before to tell you and not keep it a secret. I said yes. She said I have been keeping it a secret. I asked her what she meant. She said it was happening since I was nine, mom [17] R.A.H. was shocked by this disclosure. She had never observed anything to believe S.H. had been sexually abused. [18] S.H. further disclosed to her mother that she had told M.G. of the sexual abuse. R.A.H. “freaked out and cried” and contactedM.G. by Facebook messenger.

Their Facebook communications from on or about December 27, 2016 and January 19, 2017, wereentered as Exhibit A on Voir Dire # 1. R.A.H. and M.G. became alienated as a result of S.H.’s disclosure. [19] Although S.H. said she wanted to make a statement to the police, she asked to speak to a counsellor first. R.A.H. took S.H. to seea counsellor at Victim Services in Smithers, B.C. [20] The Victim Services counsellor arranged for S.H. to meet with a female police officer, Constable Simone Heuberger. [21] On January 6, 2017, Constable Heuberger met with R.A.H. and took her audio recorded statement.

R.A.H. took S.H. and S.D. tothe RCMP station to provide their statements on January 7 and 8, 2017. R.A.H. was not present during Constable Heuberger’s interviewwith S.H. or S.D. Neither S.H. nor S.D. was present when the other was being interviewed by Constable Heuberger. [22] R.A.H. did not grill S.H. for details of the sexual abuse other than to ask her if K.S.T. was inside of her in order to determine theseriousness of her allegations.

R.A.H. said she did not want to know any details until the matter was dealt with in court. [23] After R.A.H. and S.H. provided their statements to the police, R.A.H. took S.H. to a doctor to test her for pregnancy and sexuallytransmitted diseases. K.S.T. and M.G. had taken S.H. to the doctor previously, but generally for bladder infections from which S.H.frequently suffered. S.H. did have some blood analysis which did not indicate any medical concerns. S.H. did not undergo an internalmedical examination because she was uncomfortable with the male doctor.

[ 24 ] R.A.H. testified that S.H., who was once a loving, caring and outgoing person, had become unhappy, angry, self-destructive and suicidal. Evidence of S.H. [ 25 ] S.H.’s birthday is January 31, 2004. She has two brothers and one sister, S.D. At the time of her statement (January 7, 2017), S.H. was almost 13 years old and in Grade 7. She lived at home with her mother and her mother’s partner and her three siblings. At the time of trial, S.H. lived with her maternal grandmother, D.H. [ 26 ] S.H. believes she moved to Smithers with her mother and siblings in October 2016.

Before moving to Smithers, S.H. lived in [omitted for publication]. She and S.D. spent weekends and school holidays at K.S.T. and M.G.’s house. She referred to K.S.T. as [omitted for publication] or Ye-eh and M.G. as Grandma. Ye’eh is Gixtsan for Grandpa. [ 27 ] S.H. remembers her mother driving her to the Smithers RCMP detachment with her sister S.D., and her friend B.

She remembers speaking alone with Constable Heuberger, the matters they discussed, and trying to tell the truth. [ 28 ] S.H. met with Constable Heuberger alone and she did not meet with any other police officers prior to meeting Constable Heuberger. S.H.’s entire 70 minute statement was video and audio-recorded and the recording transcribed. S.H.’s video recorded statement was entered into evidence as Exhibit V1-B and the transcript of the video was entered as Exhibit V1-C, in voir dire #1. [ 29 ] In her video-recorded statement, S.H. told Constable Heuberger she knew why she was at the police detachment.

She came to talk to the officer about what happened. As to the nature of the touching, S.H. said: He . . . liked try to touch my privates or he would try to touch my bum . . . or he would want to pull down my pants so he could try . . . stick it in me and then . . . I told him I don’t want to and he . . . would just pull them down anyways and put it in me, well he would try to put it in me and then . . . I’d try to tell him to stop or, I try stopping him and he won’t stop for a while and he then . . . he finally stops.

S.H. said by “it” she meant K.S.T.’s private parts. [ 30 ] In her video-recorded statement, S.H. described the following incidents: a. S.H. asked K.S.T. why he kept touching her and he told her it was because she “rubbed on him” while she and S.D. were with him and that he liked it so he kept touching her [S.H.]; b. From time to time K.S.T. took S.H. and S.D. up to his room to measure how tall they were. After he was done with measuring the girls he would try to touch S.H. She told him to stop and he would “frown and says shhh or something” and S.H. left his room; c.

When K.S.T. tried to get S.H. to go alone with him, she would try and take S.D. She said, “I always bring my sister with me cause I don’t like him touching me, so I bring my sister. For example, K.S.T. took the girls riding on his side-by-side quad, S.H. wanted him to take S.D., but he took the girls one at a time. He took S.D. first and then S.H. last; d. K.S.T. would take the girls riding on the side-by-side on one of the water tower trails in [omitted for publication] to a place called [omitted for publication].

On one occasion, while S.D. was driving the side-by-side in circles in the field, K.S.T. and S.H. went to check out the house. While they were inside the house, by the front door, K.S.T. told S.H. to pull down her pants and bend over. She told him she didn’t want to. He told her to hurry up and do it. She pulled down her pants and bent over and he tried putting “his private part” in her. When he was finished S.H. pulled up her pants and went outside; e. Sometimes when K.S.T. was out riding in the side-by side with S.H., he stopped and told her to pull down her pants.

When she didn’t do as he asked, K.S.T. pulled S.H.’s pants down for her. He then pulled his own pants down a little, and tried to put his “thing” in her. She told him stop which he did eventually, but not for a while. After this incident, he allowed S.H. to drive the side-by-side; f. Sometimes when S.H. wanted something, K.S.T. would tell her she had to pay him back or owe him. For example, if she asked if he could take her and her friends for a ride, he told her she would have to owe him. On one occasion, K.S.T. allowed S.H. to drive his truck in the field.

He tried to kiss her and said “yummy, I want you.” He then told her she had to owe him; g. If S.H. went to say goodnight to K.S.T. and her grandmother (M.G.) and S.D. were not around, K.S.T. would try and touch her private parts or her bum. One time, she pushed him away and he became angry. S.H. went downstairs and told her grandmother about K.S.T. touching her. M.G. asked S.H. where and when he touched her. M.G. began crying and told S.H. that she felt sick about it. She asked S.H. if she wanted to tell the cops, and S.H. said she did. M.G. told S.H. to keep it a secret for a while.

She told S.H. to tell her if he touched her again and she would “beat him up … or something and he’ll let her do it, and she said she’ll move out on him … so he’ll have nothing”; h. S.H. understood that after this conversation with her, M.G. talked to K.S.T. and told him not to touch S.H. again. One day while S.H. was working outside on some wood, K.S.T. came out to help her. He told her not to have any of “those talks” with her grandmother anymore. i. S.H. recounted an incident when she and S.D. were staying in a hotel in Prince George with K.S.T.

While S.D. was in the shower, K.S.T. told her to come to him, she did, and he tried to touch her “bum and stuff.” S.H. walked away and went and told S.D. to get out of the shower; j. On one occasion when S.H. and S.D. accompanied K.S.T. and M.G. to Prince Rupert, they stayed at the Highliner Inn. She described the weather as “raining with a little bit of snow.” S.H., S.D. and K.S.T. were in the hotel room with M.G.’s little dog; M.G. was in the casino. S.H. was using K.S.T.’s cellphone to access Facebook. She was on his bed and S.D. was on M.G.’s bed.

S.H. said K.S.T. tried touching her bum or her “boobs” and gestured between her legs. S.H. told him she did not want him to do that he got mad

and took away his phone. S.D. later told S.H. she heard her saying no to K.S.T.; k. Nothing further happened in Prince Rupert; however, when K.S.T. dropped S.H. and S.D. off at home he tried to touch S.H.’s bum while she was giving him a goodbye hug. S.H. pushed him away and went inside. S.H. said this was typical: “every time he dropped me and my sister off he would try and touch me . . . and one time he told me . . . he’ll try to get in me”; l.

S.H. said that on another occasion in the evening while she was at K.S.T.’s residence in [omitted for publication], he told her to “suck his thing down here”, and gestured to his private parts. She said no, she didn’t want to, and K.S.T. told her to kiss it, which she did quickly; and m. Also, while at the T./G. residence in [omitted for publication], K.S.T. asked S.H. to touch his private part with her hand. She refused, however, he grabbed her hand and put it on him and moved her hand with his on his private part. [ 31 ] S.H. testified as to the following matters in her cross examination: a.

K.S.T. touched her on one occasion after measuring her when K.S.T., S.H. and S.D. were lying on the bed; b. She remembered telling the police officer in the video about riding a side-by-side quad. She said the rides did not happen often. Sometimes K.S.T. would give S.H. a ride and sometimes S.D. While he was out riding with S.D., S.H. would stay in the house and vice versa. When they returned, S.H. would come outside, and it would be her turn to go with K.S.T. When K.S.T. took her riding in the side-by-side, he stopped and pulled down her pants and his pants and tried to put his private

part in her; c. S.H. confirmed that she had told her grandmother, M.G., about what had happened, and she told S.H. to let her know if it happened again. Although the sexual touching continued, S.H. did not tell her grandmother. K.S.T. had told her not to have any more of those talks and because she was scared of him, S.H. didn’t tell her grandmother [M.G.] of later incidents; d. S.H. testified as to the incident which occurred in the Sandman Inn in Prince George. K.S.T., M.G., S.D. and S.H. all shared one room. S.H. slept on the couch. S.D. and M.G. slept in one bed and K.S.T. slept in the other.

K.S.T. touched S.H. at night while M.G. was in the casino and S.D. was in the shower; e. S.H. testified as to the incident which occurred in the Highliner Inn in Prince Rupert when K.S.T. touched her. She could not remember how often they went to Prince Rupert, but the touching occurred on only one occasion. S.H., S.D., K.S.T. and M.G. all shared one room. S.H., S.D. and M.G. slept in one bed and K.S.T. the other. The touching occurred while M.G. was in the casino. S.D. was trying to sleep on one bed. S.H. lying on the other bed with K.S.T. listening to music.

S.H. said: After [S.D.] was laying there He looked over seeing what she was doing Her eyes were closed And then I don’t know I guess he thought she was sleeping or something. I can’t remember what he was trying to do He was trying to do something I didn’t want him to do. He did it anyway f. S.H. also testified that every time K.S.T. dropped her and S.D. off at their home, he tried to touch her; g. S.H. said she told her mom that K.S.T. had being touching her, but she did not tell her mom “the whole story.” S.D. [ 32 ] S.D. is S.H.’s younger sister.

When she provided Constable Heuberger with an audio recorded statement, she was eleven years old and in Grade 6. S.D. met with Constable Heuberger alone and did not meet with any other officers prior to meeting with her. S.D. gave a 24 minute statement to Constable Heuberger. Her statement was video and audio-recorded in its entirety, and the recording transcribed. S.D.’s video recording and its transcription has been entered into evidence. [ 33 ] In her audio-video recorded statement S.D. testified as to the following matters: a.

S.D. grew up in [omitted for publication], and has lived in Smithers [with her family] since 2014; b. S.D. knew she was at the police detachment to talk about what had happened to her sister. S.H. had disclosed to S.D. that K.S.T. had been touching her for three years; c. S.D. and S.H. would spend weekends and school holidays at their grandparent’s home in [omitted for publication], M.G., who S.D. called grandma, and K.S.T., who she called Ye’eh; d. K.S.T. would spend time with S.H. and S.D. separately. She said, “S.H. . . . was usually always the one that went with my

Ye’eh. . . and . . . he would always let S.H. do everything then me . . . I don’t know . . . but he would always take S.H. . . . he wouldalways suggest taking my sister; e. S.D. and S.H. were in a hotel room in Prince Rupert with K.S.T. and M.G. It was in the beginning of winter, 2016. S.D. was onone bed and K.S.T. and S.H. were on the other. S.D. “faked sleeping.” At about 8 or 9 in the evening she heard S.H. tell K.S.T. to“stop.” f. On another occasion, at the T. residence in [omitted for ublication], S.H. was sitting on the arm of his chair in the living roomwatching as K.S.T. used his phone.

M.G. was downstairs in her computer room. As she leaned against him, K.S.T. placed his armaround S.H. S.D. saw K.S.T. touch S.H.’s private part. S.D. told him to stop, but he refused. S.H. said, “Ye’eh stop” in a mean way andgot mad at him. S.D. wanted to tell her grandma (M.G.), but was too scared to do so.

This incident occurred in December before K.S.T.went to camp for Christmas. [34] S.D. said, “Those two times is when I knew it was going on, but I didn’t know who to tell and I was too scared to tell.” [35] In the voir dire, S.D. testified she remembered her interview with the police on January 8, 2017, the reason for the interview,namely, to talk about S.H.’s sexual abuse. She also testified that when she talked to the officer on January 8, 2017, she told her the truth. Affidavit Evidence of David Bailey sworn September 19, 2017 [36] Mr.

Bailey is the Manager for the Highliner Plaza Hotel & Conference Centre in Prince Rupert, B.C. Attached as Exhibit “A”to Mr. Bailey’s affidavit is a true copy of the hotel’s guest record for K.S.T. of November 5, 2016. The invoice indicated that K.S.T. hadpaid a “pet deposit”. Owen Smith [37] Owen Smith is a corporal with the RCMP. He has been a police officer for nine and one-half years and a corporal for a year andone half. He is stationed in New Hazelton, B.C., a post he has held for a year and one half. [38] Corporal Smith was the lead investigator on this matter.

Corporal Smith confirmed that S.H. and S.D. each gave one statement topolice in connection with this matter. Both statements were given to Constable Simone Heuberger at the Smithers RCMP detachment;both statements were recorded. Constable Simone Heuberger [39] Constable Simone Heuberger has been a constable with the RCMP since 2011. During this time she has been stationed with theSmithers RCMP detachment.

She has experience in investigating allegations of sexual assault against child complainants and has beentrained in the step-wise program for interviewing children. [40] Constable Heuberger became involved in the matter before the court on December 28th, 2016, when she received a call around8:30 from the New Hazelton detachment requesting assistance in obtaining some statements from witnesses who resided in Smithers inregards to a disclosure of a sexual assault allegation that was made. [41] Constable Heuberger met with R.A.H. on January 6, 2017, S.H. on January 7, 2017, and S.D. on January 8, 2017.

Takingstatements from these three witnesses was Cst. Heuberger’s only involvement in the investigation of the matter before the court. CstHeuberger did not know R.A.H. and had never meet S.H. or S.D. before taking their statements. [42] Constable Heuberger’s interviews and discussions with R.A.H., S.H. and S.D. were recorded in their entirety. S.H. and S.D.’sformal interviews were audio and video recorded. Their preliminary interactions with Constable Heuberger prior to the interviewcommencing were audio recorded.

Procedure of the s. 715.1 application [43] In an s. 715.1 application, the witness takes the stand, watches the video and adopts the contents. This prevents the necessity ofhaving the witness provide direct evidence although she is subject to cross-examination.

Purpose of s. 715.1 [44] In R. v F. (CC), (SCC), [1997] 3 SCR 1183 the Supreme Court of Canada held (at para. 21) the dual purposesof s. 715.1 are to create a record which is probably the best recollection of the event that will be of investigative assistance inascertaining the truth and to make participation in the criminal justice system less stressful and traumatic for child and adolescentcomplainants, but also aids in the preservation of evidence and the discovery of truth. [45] A subsidiary aim of s. 715.1 is to prevent or materially reduce the likelihood of inflicting further injury upon a child as a result ofparticipating in court proceedings.

This is accomplished by reducing the number of interviews the child must undergo, therebydiminishing the stress of repeated questioning on a painful incident, and by videotaping the evidence in surroundings less overwhelmingfor a child than a courtroom (para. 22). Purpose of the Voir Dire [46] The purpose of the voir dire is to determine admissibility. Weight and credibility are subsequent issues.

The circumstances inwhich the video was made, the veracity of the witness’ statements, and the overall reliability of the evidence are factors relevant toweight rather than the admissibility of the statement: F. (C.C.) at paras. 46-47. Use of the Video-Recorded Statement

[47]

Section 715.1 permits both videotaped and viva voce evidence: In F. (C.C.), the Supreme Court of Canada held the “priorstatement, combined with the complainant’s in-court evidence, may well afford a more complete version of the complainant’s evidence.” The Court concluded at para 45, “An adopted videotaped statement should, together with the viva voce evidence given at trial, comprisethe whole of the evidence-in-chief of the complainant.” [48] In R. v. Aksidan, 2006 BCCA 258 , the B.C.

Court of Appeal held that the video recorded statement is part of thewitness’ examination-in-chief and does not constitute a prior consistent statement nor corroboration. Recently, R. v. Untinen, 2017BCCA 320 , the B.C. Court of Appeal clarified that it is appropriate for a judge to consider internal consistency in the way acomplainant has related her account over time to assess a defence attack on the complainant’s credibility or the reliability of herevidence, when that attack is premised on inconsistencies between the two versions. The appellate court stated at para. 80: In

summary, consistencies between a complainant’s out-of-court video statement and her in-court testimony may provide importantcontext that informs the trier of fact’s evaluation of a defence challenge to her credibility or reliability. Consistency of account coulddispel, or at least blunt, a defence claim that inconsistencies undermine the witness’s credibility or reliability. Again, this is not usinginternal consistency to corroborate the witness’s evidence. Criteria for Admissibility [49]

Section 715.1 is a statutory exception to the rule that hearsay is inadmissible.

It permits an out-of-court statement to be admittedfor the truth of its contents provided the Crown satisfies the following five prerequisites for admissibility: a. the child or witness must be under 18 years of age at the time the offence is alleged to have been committed; b. the video recording must be made within a reasonable length of time after the alleged offence; c. the victim or witness must describe the acts complained of; d. while testifying, the victim or witness must adopt the contents of the video recording; and e. the presiding judge or justice must be of the opinion that admission of the video recording in evidence would not interfere withthe proper administration of justice. [50] Once these preconditions are met, the recording will be admitted in evidence unless the presiding judge is of the opinion that toadmit the video would interfere with the proper administration of justice. [51] The Crown bears the onus of establishing the preconditions on a balance of probabilities: R.A.H., 2017 PECA 5, , atpara. 25.

Quash, at para. 15; R. v T.R.J., 2014 BCSC 1611 , para 88, 89. Criterion # 1: the child or witness must be under 18 years of age at the time the offence is alleged to have been committed [52] The complainant was S.H. was [omitted for publication] days old at the beginning of the offence period encompassed byInformation 24560-2-C and [omitted for publication] days old at the end. S.H. was [omitted for publication] days when she gave hervideo recorded statement to Constable Simone Heuberger in Smithers, B.C. on January 7, 2017.

She was [omitted for publication] daysold and in Grade 8 when she testified at trial. [53] S.D. was between [omitted for publication] days and [omitted for publication] days during the period encompassed byInformation 24560-2-C. She was [omitted for publication] days old and in Grade 6 when she gave her video recorded statement toConstable Simone Heuberger in Smithers, B.C. on January 8, 2017. She was [omitted for publication] days old and in Grade 7 when shetestified at trial. [54] I am satisfied as to both S.H. and S.D. were under 18 years of age at the time the offence was alleged to have been committed.

Criterion # 2: the video recording must be made within a reasonable length of time after the alleged offence [55] The legislative goal of s. 715.1 is achieved by obtaining an account of the incident while it is fresh in the complainant’s mindand more likely to be full and accurate. The period of time which must be “reasonable” is the period between the commission of thealleged offence and when the witness provided the video recording outlining the details of that offence. In R. v.

Lucas, 2001 BCCA 361, the Crown tendered videotaped statements by a young complainant made very shortly after the first disclosure of the allegedsexual activity, but some four years after the sexual activity allegedly concluded. The trial Judge admitted these statements as the timebetween the “disclosure” of the sexual activity and the videotaped statements was reasonable. The British Columbia Court of Appealdisagreed, holding that this approach was “inconsistent” with the language of s. 715.1 of the Code. Saunders J.A., on behalf of theCourt, stated that while Parliament could have framed the

section as measuring the time “from disclosure,” this was not the choice madeby Parliament, which provided instead “that measurement starts from the date of the alleged events.” [56] In L. (D.O.), (SCC), 1993 CarswellMan 24, the Supreme Court of Canada upheld the trial judge’s ruling that thevideo statement of the 9 year old complainant was made within 5 months of the offence was made within a “reasonable time.” TheCourt held that what is or is not ‘reasonable’ depends entirely on the circumstances of each case; it requires a contextual assessment inwhich a wide variety of considerations will factor into the balancing. [57] The most important of the factors to be balanced in assessing reasonableness are the reasons for the delay and impact of thedelay on the child’s ability to accurately recall events in issue. [58] In R. v T.R.J., 2014 BCSC 1611 , Justice Fitch stated at para. 80: [80] The point is this: whether a video recording has been made within a reasonable time after the alleged offence is not an exercise in

mathematics. It is an exercise of judicial discretion which takes its shape from the governing principles and the unique circumstances ofa given case. [59] In R. v. S. (P.), (ON CA), leave denied [2000] S.C.C.A. No. 486, the court ruled that a two-year delay was"borderline" but not unreasonable. The complainant was nine at the time the video statement was taken and 5 or 6 years old at the timeof the offence.

The Court allowed the videotape evidence upon taking into account the fact that the child was timid and fearful, unableto communicate because of fear of embarrassment as well as her relationship with the accused who was her cousin.

At para. 71,Moldaver, J.A., as he then was, discussed the factors to be considered: [10] The Court, more generally, should consider such factors as the age of the witness, the period of delay (and the reasons underlyingthat delay) prior to the disclosure of the alleged offence, the specific nature of the allegations, the nature of the relationship between thewitness and the accused, the period of delay between the disclosure and the video recorded statement (and the reasons underlying thatdelay), the emotional make-up of the witness, the potential impact that the delay may have had on the ability of the witness to accuratelyrecall the events in question, and the existence of any circumstances in the intervening delay (i.e. between the alleged offence and thevideo recorded statement) that might impact upon the reliability of the videotaped statement, see R. v.

S.(P.), at paras. 71-75. Inbalancing these various considerations, the Court should be ever mindful of the reality that child victims of sexual abuse, for a variety ofreasons, are “often apt to delay disclosure” for a substantial period of time. See R. v. L. (D.O.), at p. 468; R. v. W. (R.) (SCC), [1992] 2 S.C.R. 122, at p. 136. [60] The case law indicates that delays of up to two or three years are often held to be reasonable. For example, in R. v.

Quash, 2013BCSC 2498 , at paras. 36-59, the trial judge found reasonable a 22 months delay where the Complainant was 11 years old at thetime of her videotaped statement and 9 or 10 at the time of the offence. [61] In R. v.

S.M., 1995 ABCA 198 , the Alberta Court of Appeal allowed the introduction of a videotaped statement after a17-month delay from the time of the last incident and found that the statement was made within a reasonable time due to the naturalreluctance on the part of the complainant to disclose the allegations plus an honest hesitation by the mother about what was the rightthing to do for the child.

As to the argument the delay cannot be so long as to destroy any real hope of catching recollection before itbecame faint or distorted, the Court noted at para. 6: [6] It must be conceded that the long delay here greatly weakened the impact of the videotaped recollection. And there is always a riskthat a trier might put too much weight on a taping that occurred when the report was already stale. But that is a matter of weight, notadmissibility. The complaint here is that the judge should not have admitted the tape. [62] In R. v.

S.G., , the Ontario Superior Court found a three year delay reasonable where the child’s explanationfor the delay was fear for her mother’s safety. The complainant gave the videotaped statement to the police when she was 13 years oldabout events which occurred when she was 10 years old and in Grade 5. The Complainant was 16 years old at trial. Justice Spies citedProfessor David Paciocco (as he then was), who observed in his text, The Law of Evidence, that if "reasonable time” is interpreted in toorelaxed a fashion it guts much of the reliability for introducing these statements".

Justice Spies found the complainant, at 10 years old,was not of such a young age where the three year delay in obtaining her statement would raise obvious concerns about her ability toaccurately recall the incidents. In admitting the videotaped statement, Justice Spies took into consideration a number of factors,including the fact there was no evidence of anything that occurred between the events complained of and the videotaped statement hadimproperly influenced the complainant's recollection of the events. [63] In R. v.

J. (J.), 2008 ONCA 133 , at paras. 8-9, the Ontario Court of Appeal upheld the trial judge’s decision to permitthe Crown to introduce a videotaped statement made by the police of an interview of a 15 year old complainant recounting sexual abuseby the accused which ended when she was 12. The statement was taken within days of the complaint but three years after the allegedabuse. The accused was her mother’s partner, and the complainant had trouble testifying against him.

In the preliminary inquiry,however, the complainant recounted further abuse by the appellant that lasted until a few months before the complaint. [64] In R. v. M.S.J., 2016 NWTCA 2 , the evidence as to when the last incident of touching occurred was not clear. TheCourt found the delay between the last incident and the police statement was approximately 1.5 to 2.5 years or at most, three years. Thecomplainant explained she did not make disclosure because at first, when she was very young, she did not realize anything inappropriatewas happening.

Later, when she started to realize it, she was in denial for a long time. The Court of Appeal found that under thesecircumstances, it was open to the trial judge to find the statement was made within a reasonable time. The appellate court said it wasnoteworthy that in R. v. S.G. (2007), (ON SC), and R. v. D.S., 2009 BCPC 217 , a delay of three years ineach case was found to be a reasonable time. [65] In exceptional circumstances even much longer periods of time have been held to be reasonable, for example, in R. v.

B.(W.E.), 2012 MBCA 23 , the Manitoba Court of Appeal upheld the decision of the trial judge to admit a video that was madebetween 9 and 14 years after the incidents that gave rise to the charges. .The Court found that the delay was reasonable in view of thecomplainant’s developmental delays and the difficulties she had to overcome before she was able to deal with the issues, [66] In R. v D.T., 2017 ONSC 1953 , K.C. Campbell J. found the total delay between the conclusion of the offences and theComplainant’s video recorded statement was somewhat less than three years...

Justice Campbell noted (at para. 16) there are a number ofjudicial authorities that have held that delays of this length are “reasonable” within the meaning of s. 715.1 of the Code. In concludingthe video was taken within a reasonable time, Justice Campbell considered the following evidence (at para. 17): a. The sexual offences by the accused were alleged to have taken place on a very regular basis when the complainant was betweeneight and 11 years of age. The complainant was 14 years of age when she provided her video recorded statement; b.

The complainant delayed reporting the sexual abuse because the accused told her that their sexual activities together were “oursecret,” and that he was her “older boyfriend.” It was only later when she realized that she had to tell someone else about this; c. There was little delay in the police securing the complainant’s video recorded police interview statement after the complainant

first disclosed the commission of the alleged offences; d. It is not surprising that the complainant delayed disclosing the alleged offences given the nature of the allegations, the vastdifference in the respective ages of the accused and the complainant, and the position of respect and authority occupied by the accused. The complainant explained that she was simply “scared” to tell her mother because she did not want “anything to happen”; e. The delayed disclosure and reporting of the alleged sexual offences had little impact on the ability of the complainant to recallthe substance of the events in question.

Because the complainant was 14 years of age when she provided her video recorded statement tothe police, she was not of such a young age that a delay approaching three years would raise obvious concerns about her ability to recallthe incidents of alleged sexual abuse. (Citing R. v. S.G. (2007), (ON SC), at para. 29); f. The evidence discloses no circumstances, between the commission of the alleged offences and the complainant’s videorecorded police interview statement, which might impact negatively upon the reliability of the video recorded statement.

Specifically,there was no evidence that anything happened during this period of time which provided the complainant with a motive to falselyimplicate the accused in a crime he did not commit. (Citing R. v. S.(P.), (ON CA) at para. 71 ); and g. It is important to recall that child victims of sexual abuse are, for a variety of reasons, “often apt to delay disclosure” of thesexual abuse for a substantial period of time. (Citing R. v. L. (D.O.), at p. 468; R. v. W. (R.) (SCC)). [67] D.T. was referenced in R. v.

S. (J.), 2017 ONSC 6363 wherein Crown sought to introduce into evidence a videostatement of the complainant made at least 6.5 years after the alleged incident underlying the sexual assault charges against her father. The complainant was very young: between four and five years of age. Justice Dunphy of the Ontario Court of Justice held that whilethe delay between the statement and the alleged offence was far beyond what the jurisprudence had found reasonable, the quality of thememory preserved in terms of detail was relatively high.

The Complainant described in reasonably vivid detail an incident that occurredwhen she was between four and five years of age where her father had allegedly required her to perform

an act of fellatio upon him. [68] In R.A.H., 2017 PECA 5 , the PEI Court of Appeal refers to the case of R. v. T.J.A., 2016 OJ No. 2876, where the OntarioCourt of Justice found a video made 20 months after the alleged offence was not made in a reasonable time where there had been 20months between the child’s initial disclosure and her statement. In R. v. A.G.B. (No. 3), 2011 ABPC 260 , the AlbertaProvincial Court found a video statement made four years after the incident inadmissible as the passage of time was likely to haveadversely affected the complainant’s memory.

The complainant was 10 years old when the alleged offence occurred, 11 when she madeher first disclosure, 14 when her statement was video recorded and 16 by the time she testified at trial. The trial judge commented shewould have fully progressed through her adolescent years between the date of the offence and the date of trial; likely by the date of hervideo recorded statement.

Judge Rosborough found the passage of time was likely to have adversely affected the complainant’s memoryof the events which was borne out by the brevity of her statement and her inability to recall collateral facts. (A.G.B. was referenced inR.A.H. and by Justice Fitch in T.R.J.) [69] In cases such as the one at bar where the Complainant alleges repeated acts of sexual abuse over a period of time, the operativestarting date of the period which must be reasonable is the probable date of the last incident of abuse: R. v T.R.J., 2014 BCSC 1611, citing at para. 72 R. v.

Archer (2004), 2005 CanLll 36444 (ON CA) at paras. 74–75. In R. v. Archer, the Court of Appeal heldthat where an offence is “ongoing” the relevant question is not the delay between when the first allegation is alleged to have occurredand the disclosure but from the date of the last alleged incident. In the Archer case, the period from the last alleged incident todisclosure was three weeks and the abuse was alleged to have been ongoing for five years. Doherty, J.A. states in part: [73] . . .

Where, as here, the alleged offence involves ongoing sexual abuse over a prolonged period of time, the operative date must bethe last incident of abuse. In this case, the alleged offence of sexual assault began in 1993, but the offence alleged in count onecontinued until early February 1998. The “alleged offence” was ongoing less than three weeks before the videotape was made. [74] My

interpretation of the reasonable time requirement is consistent with that found in R. v. R.W.N. (2004), (ONCA), 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 hadendured a prolonged period of abuse, no matter how close to the end of the abuse the child made the videotaped statement. It is in thosevery 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), (SCC), 120 C.C.C. (3d) 225 at 236 (S.C.C.). [70] Considering Moldaver J’s factors set out in S.(P): The specific nature of the allegations: The allegations as set out above involved unwanted sexual touching, attempted penilepenetration, sexual assault, sexual interference, invitation to sexual touching and exposure of genitals. The nature of the relationship between the witness and the accused: S.H. considered the accused her Ye’eh or grandfather.

Therewas a strong bond of trust between them; The period of delay between the disclosure and the video recorded statement: For the purposes of voir dire #1 I find on a balance ofprobabilities one of the last alleged incidents of sexual touching the complainant described occurred on or about November 5, 2016, inPrince Rupert, B.C.

The period of delay, therefore was approximately two months; The reasons underlying that delay: In determining the reason for S.H.’s delay in disclosing the alleged abuse, I consider relevant,S.H.’s aboriginal status, her age at the time of the alleged offences (9 to 12), the fact that the accused is her grandfather and was hercaregiver at the relevant time, the trauma of the events, the trauma of previous abuse, and most significantly, the fact S.H. told hergrandmother about the abuse and was subsequently warned by K.S.T. not to have any more of those discussions.

S.H. believed M.G.spoke to K.S.T., and the abuse continued; S.H. was fearful of K.S.T. S.D. did not tell anyone what she had witnessed, because although she “knew it was going on but I didn’t know who to tell and I was too

scared to tell.” The emotional make-up of the witness: S.H. is an extremely vulnerable and anxious young First Nations girl who had been traumatizedby previous sexual abuse by someone other than K.S.T. R.A.H. describes S.H. as a formerly loving, caring and outgoing child who isnow unhappy, suicidal and self-destructive in that she cuts herself. Constable Heuberger describes S.H. as very quiet and reserved. Shestated: . . .

I actually struggled immensely with this interview in the sense . . . she was very quiet, she was very slow in her answers. . . she was detailed in some things, but not detailed in other things. . .times or time stamps overlapping. So it was hard for me ‘. . . follow along because I wanted to give her my . . . full attention. . . . it wasjust a really hard interview with her . . . the way she speaks and kind of answering questions or, you know, in that sense.

The existence of any circumstances in the intervening delay (i.e. between the alleged offence and the video recorded statement) thatmight impact upon the reliability of the videotaped statement. There is no evidence of circumstances between the alleged offences andthe video recorded statement which significantly undermined the reliability of the statement. [71] For the purposes of voir dire #1 I find on a balance of probabilities one of the last alleged incidents of sexual touching thecomplainant described occurred on or about November 5, 2016, in Prince Rupert, B.C.

I do, however, acknowledge S.H. told ConstableHeuberger the last time K.S.T. touched her was before Christmas, which I understood to mean touched her sexually before Christmas2016. The incidents S.H. complained of were all part of a continuum joined together by the similarity of the events and the identity ofthe parties involved.

The time involved should be measured from the time of the last incident which contributed to the ongoing offencewhich is alleged to have occurred within two months or so of S.H. giving her statement. [72] Considering those factors cited by Moldaver, J., in S. (P), and the fact the last incident complained of occurred within twomonths or so of S.H.’s video recorded statement, I am satisfied S.H.’s statement was made within a reasonable time. [73] For the purpose of voir dire #2, I find on a balance of probabilities, the alleged incidents to which S.D. testified as to havingwitnessed occurred: a.

November 5, 2016, in Prince Rupert, B.C.; and b. In [omitted for publication], sometime before Christmas of 2016. [74] As S.D. was 11 when she gave her statement and 11 at the time of the incidents she said she witnessed, the incidents shedescribed occurred within months of her providing her statement. Accordingly, I am satisfied S.D.’s statement was made within areasonable time.

Condition # 3: the victim or witness must describe the acts complained of [75] The reference in s. 715.1 to “describes the acts complained of” does not mean the video recording may only include descriptionof the actual assaults in the indictment before the Court, and not any other information, contextual or otherwise. In R. v. Scott (1993), 27C.R. (4 ) 55 (Ont.

C.A.), the Court held that a description of “the acts complained of” may include: a. the events from the time the victim met the accused until the accused leaves after committing the assault; b. the victim’s description of the accused’s physical features or name if known; and c. statements made by the accused. [76] In R. v. Meddoui (1990), (AB CA), 61 C.C.C. (3d) 345 (Alta.

C.A.) para 69, the Court held “acts complainedof” may include a description of the assailant and further that, “A Judge should not exclude on this ground for occasional excess, andshould attempt excision before exclusion”. [77] The videotaped statement must describe the “acts complained of” and references to other offences or hearsay statements made onthe videotaped are not rendered admissible through 715.1. Fair editing may be used by the trial judge as part of the inherent duty tocontrol the proceedings: R. v. A. (J.F.) (1993), (ON CA), 82 C.C.C. (3d) 295 (Ont. C.A.) [78] In R. v. R.E.M., [2002] B.C. J.

No. 185 (B.C.S.C.) 43, Romilly J. acknowledges that it is preferable for police officers in s. 715.1interviews to ask simple, open-ended questions although he recognizes there are some situations where it is necessary to ask leadingquestions. [79] The Ontario Court of Appeal in R. v. Toten (1993), (ON CA), 83 C.C.C. (3d) 5 (Ont. C.A.), para 55, held thatthe inclusion of questions that have investigative or therapeutic value but which do not “describe the acts complained of” may, ifeffective and fair editing is not possible, necessitate the exclusion of the entire statement.

References to other offences or hearsaystatements are not admissible. The trial judge may edit the tape. Judges have always had the power to edit statements and other forms oftestimonial evidence to avoid prejudice and irrelevancies where the editing process can be achieved without distorting the nature of theevidence adduced. [80] In this case, the Complainant does not refer to any other incident of assault other than that charged in the indictment before thecourt. The acts which S.H. complains of are referred to above and include: a.

On more than one occasion, after S.H. and S.D. spent time with K.S.T. at his home in [omitted for publication], K.S.T. would dropher and her sister off at home and K.S.T. touched her bum while hugging her goodbye;

b. On one occasion, K.S.T. grabbed her hand and held it on his penis, then stroked his penis using S.H.'s hand; c. On one occasion, K.S.T. told her to suck his penis. She said she didn't want to and then he told her to kiss it. She quickly did andleft; d. On at least one occasion, K.S.T. took S.H. out for a ride on his side-by-side quad. He stopped the quad by some bushes and pulleddown her pant when she refused to do so herself. He pulled down his pants exposed his penis to her, then tried and put his “thing” in herand she told him to stop, which he did not do right away.

He would finally stop and she would pull up her pants. He would allow her todrive the side by side for a bit; e. On another occasion when K.S.T. took S.H. and S.D. out riding on his side-by-side quad, he and S.H. went into a house she referredto as the [omitted for publication]. While alone in the house with K.S.T., at his direction, S.H. pulled down her pants, and K.S.T. tried topenetrate her from behind; f. While staying at a hotel in Prince George with K.S.T., M.G., and S.D., and while M.G. was in the casino and S.D. was in theshower, K.S.T. tried to touch S.H.'s vagina and bum; g.

While staying at a hotel in Prince Rupert with K.S.T., M.G. and S.D., and while M.G. was in the casino and S.D. was in the roomwith S.H., K.S.T. tried to touch S.H.’s private parts while she was using his phone. With her words and gestures, I understood this to beS.H.’s vagina and buttock. She told him she didn’t want him to touch her. He got mad and took away his phone; h. S.D. testified that at the hotel in Prince Rupert, while pretending to sleep on the next bed, she heard her sister ask K.S.T. to stop; and i.

Just before Christmas while at K.S.T.'s home in [omitted for publication], S.D. saw her sister and K.S.T. sitting on a chair together.K.S.T.'s arm was wrapped around her sister, and S.D. heard S.H. ask him to stop. Condition # 4: While testifying, the victim or witness must adopt the contents of the video recording [81] In F. (C.C.), the Supreme Court of Canada ruled on the test to be applied to determine if the videotaped statement of a child hadbeen adopted pursuant to s. 715.1 of the Code.

Cory J. on behalf of the Court stated at pp. 239 - 240: In light of the clear aim and purpose of s. 715.1, I cannot accept the Ontario Court of Appeal position that the same meaning of adoptionshould be used in the context of the videotaped statements of a child as was applied to prior inconsistent statements. Adoption is not aterm with a static legal meaning which must apply in all circumstances. The strict adoption test for prior inconsistent statements wasnecessary to ensure a reasonable degree of reliability before allowing the statements to be admitted for the truth of their contents.

However, s.715.1 has built-in guarantees of trustworthiness and reliability which eliminate the need for such a stringent requirement foradoption.

Further, a lack of present memory or an inability to provide testimony at trial regarding the events referred to in the videotapeas a result of the youthfulness and the emotional state of the complainant increases the need to consider the videotaped statement. [82] In F. (C.C.) the Supreme Court held the requirement for “adoption” is met when the child attests he or she was attempting to betruthful at the time that the statement was made. [83] In this case, the Complainant, S.H. testified she was being truthful at the time the statement was made and has therefore adoptedthe contents of her video recording. [84] Similarly, S.D. also testified that when she talked to the police officer on January 8, 2017, she told her the truth, and has thereforeadopted the contents of her video recording. [85] I am satisfied the Crown has established on a balance of probabilities that both S.H. and S.D. have adopt the contents of the videorecording.

Condition #5: the presiding judge or justice must be of the opinion that admission of the video recording in evidence would notinterfere with the proper administration of justice. [86] A judge can refuse to admit a video under s. 715.1 if it would interfere with the proper administration of justice. An example ofsuch interference is if the interview has been rehearsed or scripted: R. v. Toten (ON CA), at para. 65. (Even thoughthe Supreme Court of Canada corrected Toten on the issue of what constituted adoption of a videoed statement, it did not over-rule theother findings of the Ontario Court of Appeal on the

interpretation of s. 715.1: F. (C.C.). [87] Similarly, subsection(1) of s. 715.1, together with the Court’s general powers, are sufficient to authorize the editing of any videoto remove extraneous evidence, such as, for example, evidence concerning matters other than the acts complained of or evidence that isinadmissible for any other legal reason: paras. 55-57. In R. v.

Walsom, 2017 ONSC 2159, Hill J. excluded the video-statement of a 21year old witness who did not testify that she made efforts to tell the police the truth in her interview, and in fact, testified that she washallucinating and not been “all there” in her head. [88] Even before s. 715.1 was amended to include the proviso contained in Condition #5, the trial judge had the discretion to excludethe video where the prejudicial effect of admitting it would outweigh its probative value.

In L. (D.O), L’Heureux-Dubé J. referred to anumber of factors which a trial judge could take into account in exercising his or her discretion to exclude a videotaped statement: 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 onthe 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 tothe events described. [89] In F. (C.), supra, Cory J. referred to these factors but commented that the cases where admission of the video would result inunfairness to the accused would be relatively rare (at par. 51). [90] In R. v.

Quash, 2013 BCSC 2498, Madam Justice Griffin discussed the issue of reliability: She states: [23] Challenges to the reliability of the evidence on the voir dire through cross-examination of the complainant or other witnesses willnot necessarily result in the evidence being inadmissible. If such cross-examination shows inconsistencies, for example, the trial judgein his or her discretion may conclude that this is simply a matter that goes to weight if the evidence is admitted but does not render itinadmissible: R .v. F. (C.C.) at paras. 47-48. [24] As held by the Supreme Court of Canada in R .v.

F. (C.C.) at para. 52: The discretionary power to exclude evidence should not be used to determine issues of weight. In cases where there is conflictingevidence and opinion as to how useful the videotaped statement may be in providing an honest and complete account of thecomplainant’s story, the statement should be admitted unless the trial judge is satisfied that it could interfere with the truth-findingprocess. [25] One of the matters that may go to weight is the extent to which there may have been a pre-video interview of the complainant: see R.v. F. (C.C.). [91] In R. v.

Castillo Cortes, 2013 ABCA 314 , the Alberta Court of Appeal made the following observations aboutcollusion in the context of a child sexual assault against two boys: [27] We see very little evidence of collusion by the two boys. Besides, they described very different incidents in different ways, andtheir evidence did not change, and they soon left Canada for different countries. [28] Merely speaking of “tainting” does not clarify things.

Eyewitnesses are not required to live in seclusion or contemplative silence upto the date of trial. [29] The mere fact that the two child witnesses may have a discussion or two about the events (alleged assaults) does not require the trialjudge to discard their evidence; nor to have a reasonable doubt. Therefore, some discrepancies in their evidence about when or wherethey talked were of even less moment.

And there cannot be proof of manufacturing evidence both in discrepancies in evidence and insimilarity of evidence. [92] The Defence argues that I ought to exercise my discretion and exclude video recordings under s. 715.1 on the basis it wouldinterfere with the proper administration of justice. The Defence bases his argument on a constellation of a number of factors, one ofwhich was Constable Heuberger’s failure to have S.H. and S.D. swear or affirm or promise to tell the truth. The officer did not impressupon them the gravity and seriousness of the matter. In this regard, Mr.

McCarthy referred to the decision in R. v. Rohrich, (ON SC), a decision of Justice Lalonde of the Ontario Superior Court of Justice, wherein he stated: [18] In this case, the first video statement taken from the complainant within five months of the incidents was lost by the MilitaryPolice. That interview had taken place on December 11, 2007 for an alleged offence that would have taken place November 27, 2006. The interviewer was a Military Police officer by the name of Phillip Hird. As a result, a second video statement was taken from thecomplainants on March 3, 2008, some 14 months after the incident.

In that video statement, the complainant was not sworn and did notaffirm to tell the truth. The complainant was not cautioned to avoid discussing her evidence with any third parties. [93] Another deficiency militating toward exclusion is the lack of evidence in S.H.’s statement as to when the alleged sexual offencesoccurred. The Defence argues that S.H.’s evidence in the video recording she was 10, 11 or 9, is no more than a guess. S.H.’s vague orequivocal answers as to when the events occurred are exacerbated by her lack of present recollection of the events.

Cross-examination isineffective in eliciting any further information about the allegations because S.H.’s typical response is she does not remember. In somecases, S.H. is simply agreeing with Constable Heuberger’s suggestions as to when and where various events occurred.

The combinedeffect of the dearth of particularity and S.H.’s lack of present recall seriously impairs K.S.T.’s ability to make full answer and defence. [94] With respect to Constable Heuberger’s decision not to ask S.H. or S.D. to promise to tell the truth, I note this is not a statutoryrequirement. [95] In Quash, Justice Griffin rejected a similar argument as a basis for excluding the video recorded statement. Justice Griffin statesat paras. 174 and 175:

[174] The defence criticizes the interview because Corporal Chrona did not tell the witness to tell the truth. This was a concern and,indeed, a focus of the court in Rohrich. I note that this is not a requirement of the Code. It is not a concern I share here with thesewitnesses. [175] Corporal Chrona asked S.R. to tell him everything that happened, in her words. It is clear to me, from the context of the interviewof S.R. in a police detachment by a police officer asking to be told what happened, that he was asking for the truth.

The fact that theevidence was not sworn or affirmed true can be addressed by the process for introducing the evidence at trial. S.R. will be sworn in as awitness at trial and will be asked whether or not what she said in the videotaped interview was true. [96] In applying Justice L’Heureux-Dubé’s criteria referred to in L. (D.O.), I find as follows: a. For the most

part Constable Heuberger used direct questions; b. Although by the end of her interviews with S.H. and S.D., Constable Heuberger was of the opinion K.S.T. was arrestable forsexual offences, she had no interest in the matter. She had never met the two young witnesses before the interview c. The video and audio recording are good quality; d. There is little inadmissible evidence in the statements, and what does exist can be eliminated through editing the recording, orsimply disregarding the comments; e. Neither S.H. nor S.D. made any other out-of-court statements; f.

There is no visual information in the statement which might prejudice the accused. Neither S.H. nor S.D. had any unrelatedvisible injuries; g. Other than testimonial accommodation, the Crown has not used any other method to facilitate S.H. and S.D.’s evidence; h. The trial is one by Provincial Court Judge; i. There has been almost two years which has passed since the making of the video recorded statements and S.H. and S.D.’sevidence at trial.

This passage of time has undoubtedly affected their present ability to effectively relate to the events described;however, in my view, it has not rendered cross-examination futile. [97] In my view the lack of specificity of S.H.’s allegations in her video recorded statement are matters which will impact the weightand not admissibility. Moreover, there are a number of markers in S.H.’s evidence to provide the accused with information as to whereand when the alleged incidents occurred.

For example, S.H. indicated they occurred at the T./. residence in [omitted for publication] inthe room where K.S.T. measured the girls, at the Sandman Inn in Prince George, at the Highliner Inn in Prince Rupert and at the[omitted for publication] and during rides on the side-by-side quad. These references provide K.S.T. with information as to where theincidents are alleged to have occurred. The Information provides K.S.T. with dates as to when the incidents occurred. R.A.H. and S.D.testified as to when S.H. was staying at the Highliner Inn in Prince Rupert with K.S.T. and M.G.

The evidence it took place inNovember 2016, is corroborated with the affidavit evidence of David Bailey. [98] In concluding the video recorded statements ought to be admitted, I am mindful that s. 715.1 is a remedial provision intended toenhance the court’s truth-seeking function in criminal proceedings involving a child complainant who has suffered sexual abuse: L.(D.O.), para

Section 715.1 seeks to include the experience of young complainants in the criminal justice system while ensuring thatan accused person’s right to a fair trial is carried out in accordance with the principles of fundamental justice. While the primary purposeof

section 715.1 is the attainment of truth, the

section is particularly focused on the needs of children and the special protections that theyrequire in order to expose that truth. [99] I am also mindful of the comments of Doherty J.A. in Toten, at para. 24-26 where he discusses the confusion, intimidation andtrauma that a young person can feel in testifying in court and the Supreme Court of Canada’s direction to trial judges about receivingevidence from children concerning sexual offences. In R. v B. (G.) (SCC), [1990] 2 SCR 30, as cited Mr. JusticeRomilly in R.E. M., 2002 BSC 162, at para. 21 ...

Dealing first with Wakeling J.A.'s comments regarding the credibility of child witnesses it seems to me that he was simply suggestingthat the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the sameexacting standard on [page55] them as it does on adults. However, this is not to say that the courts should not carefully assess thecredibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing withchildren as the appellants submit.

Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony shouldnot be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirelyappropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude,this does not mean that they have misconceived what happened to them and who did it.

In recent years we have adopted a much morebenign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirabledevelopment. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard ofthe "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. Is It Possible to Edit the Statement? [100] In R. v.

Meddoui (AB CA), at para. 69, the Court held “acts complained of” may include a description of theassailant and further that “a Judge should not exclude on this ground for occasional excess, and should attempt excision beforeexclusion”. In Toten at para. 55, the Ontario Court of Appeal held the trial judge may edit the video-taped subject of an s. 715.1application. Judges have always had the power to edit statements and other forms of testimonial evidence to avoid prejudice andirrelevancies where the editing process can be achieved without distorting the nature of the evidence adduced.

[ 101 ] Neither the Crown nor the Defence has specifically requested editing of any portions of S.H. and S.D.’s video-recorded statement, other than a discussion Constable Heuberger had with R.A.H. after S.D.’s formal statement concluded. However this is something which will still be addressed. Conclusion I am satisfied on a balance of probabilities the Crown has satisfied the statutory criterion for the admissibility of S.H. and S.D.’s video recorded statement, and they will be admitted into the trial proper as part of their direct evidence. [ 102 ] I invite submissions of counsel as to any editing they believe is required. “J. Doulis” ____________________ J.T. Doulis Provincial Court Judge