R. v. J.C. Date:, 2013 BCPC 310

Citation: R. v. J.C. Date: 20131031 2013 BCPC 0310 File No: 34384-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: C. Proteau Counsel for the Defendant: C. Beckingham Place of Hearing: Port Alberni , B.C. Dates of Hearing: April 15, September 20, 2013

Date of Judgment: October 31, 2013 [ 1 ] The accused, J.C., is accused of touching a person under the age of 16 years for a sexual purpose, contrary to

section 151 of the Criminal Code . [ 2 ] The complainant, T.B., is a young woman who was born in September, 2000. In July, 2011, she complained to her mother that J.C. had touched her inappropriately. Shortly thereafter, T.B. was interviewed by a police officer. The interview was videotaped and transcribed. During the interview, T.B. provided details of her allegations. The first issue in this case is the admissibility of the video recording of the interview as evidence of the truth of those allegations. [ 3 ]

Section 715.1 of the Criminal Code provides: In any proceeding … I which a victim … was under the age of 18 years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim … describes the acts complained of, is admissible in evidence if the victim …, while testifying, adopts the contents of the video recording …. It is unnecessary, and would be inappropriate, for me to consider whether the video recording of T.B.’s police interview might have been admissible under a common-law exception to the hearsay rule.

Parliament has decreed that the video recording of her police interview is admissible in the circumstances described in

section 715.1 . Accordingly, it should be admitted in those circumstances, and no others. In this case, Mr. Beckingham submits that the video recording cannot be received in evidence because there is no evidence from which a reliable inference can be drawn as to the date or dates on which the alleged acts of inappropriate touching occurred. [ 4 ] I have considered whether the video recording itself may provide evidence of the dates on which the alleged offences occurred. In my opinion, it cannot.

Parliament has enacted a condition precedent to the admissibility of the video recording; i.e. it must have been made within a reasonable time after the events alleged in it. Unless and until that fact is proven by admissible evidence, the video recording is not admissible for any purpose. Even if it were permissible to consider the video recording in relation to the threshold question of admissibility, the video recording in this case sheds no light on the date of the events alleged. [ 5 ] During T.B.’s evidence in chief, Ms. Proteau asked her when J.C. touched her inappropriately.

T.B. replied: I can’t really remember because it was like a long time ago. During cross-examination, Mr. Beckingham asked about one of the alleged incidents, said to have occurred when T.B. and J.C. were watching television together. Mr. Beckingham asked her the name of the television show which they were watching. T.B. replied that it was too long ago to remember. [ 6 ] Mr. Beckingham makes the irrefutable point that one cannot determine whether the police interview was conducted within a reasonable time of an event unless one knows, at least approximately, when that event is alleged to have occurred.

With respect to the alleged touching while watching television, all we know is that the event is alleged to have occurred a long time ago. I cannot conclude on that evidence that the police interview was conducted within a reasonable time after that event occurred (if it did). [ 7 ] During the police interview, T.B. said that J.C. had also touched her inappropriately when driving her about in his van. When cross-examined at trial, she said that she did not think that J.C. had touched her inappropriately in the van, but that: I don’t really remember because it was like two years ago.

I need not consider when the events happened in the van, if they happened, because T.B. did not, at trial, adopt the allegation which she had made in her police interview, to the effect that J.C. had touched her inappropriately in the van. On the contrary, she said that, to the best of her recollection, he did not. [ 8 ] For the reasons given, I conclude that the video recording of the police interview, and the statements made by T.B. to the police, are not admissible in evidence. [ 9 ] That conclusion does not dispose of the allegations against J.C. [ 10 ] During Mr.

Beckingham’s cross-examination, T.B. said that, while watching television, J.C. touched her inappropriately. She agreed with Mr. Beckingham’s suggestion that both of them were fully clothed at the time, and that it was “… a very brief touch of the bum”. No further details were provided by her evidence at trial (as distinct from her statement to the police). After the conclusion of T.B.’s cross-examination, I put the following questions to her and received the following answers: Q Were you upset when [J.C.] touched you? A Yeah

Q Why? A Because I don’t like it when people touch me. Q Okay. Was there anything special about the way he touched you? A No. That evidence is not hearsay, and is admissible as a first-person account of the event. However, on that evidence, I cannot conclude that J.C. touched T.B. “for a sexual purpose”. Not every touch on a fully-clothed buttock meets that description, and the admissible evidence in this case discloses no more. [ 11 ] For these reasons, J.C. is entitled to be acquitted. October 31, 2013 _________________________ T. Gouge, PCJ