R. v. Horswill Date:, 2015 BCPC 106

Citation: R. v. Horswill Date: 20150313 2015 BCPC 0106 File No: 37592-2-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL SCOTT HORSWILL RULING RE ADMISSION INTO EVIDENCE OF THE VIDEO/AUDIO STATEMENTS OF THE COMPLAINANT AND THE RIGHT OF DEFENCE TO CROSS-EXAMINE OF THE HONOURABLE JUDGE R. W. CALLAN BAN ON PUBLICATION 486.4(1) CCC; 486.4(2) CCC Counsel for the Crown: G. Gill Counsel for the Defendant: D.E.M. Jenkins, Q.C. Place of Hearing: Prince George , B.C.

Date of Hearing: March 13, 2015 Date of Judgment: March 13, 2015 [1] THE COURT: These are the reasons pertaining to applications made in the preliminary inquiry concerning the Accused,Michael Scott Horswill. Mr. Horswill is charged with two counts in this matter. Count 1 is that he did sexually assault B. L., contrary tos. 271 of the Criminal Code, and the second count is that for a sexual purpose he did touch, directly or indirectly, with a part of his bodyor an object the body of B.

L., a person under the age of 16 years, contrary to s. 151 of the Criminal Code. [2] At the time that these allegations are supposed to have occurred, B. L. was four years old. She is now aged five. [3] The preliminary inquiry in these matters was conducted on May 13, 2014 and continued on March 4 and 5, 2015. [4] There are two issues before the Court concerning procedure at the preliminary inquiry. Before considering these issues I notethe case of R. v William Jason Cowan, a decision of the Honourable Madam Justice Ross. The citation is R. v.

Cowan, 2015 BCSC 224,and at paragraph 30 there is a discussion of the governing principles at a preliminary inquiry. Her Ladyship writes: [30] After the enactment of the 2004 Amendments, the decision in R. v. Bjelland, 2009 SCC 38, reiterated that discovery is an"ancillary" purpose to the preliminary inquiry. In R. v.

S.J.L., 2009 SCC 14, Justice Deschamps, for the majority, discussed thefunctions of the preliminary inquiry as follows at paras. 21-24: [21] It is well established that the preliminary inquiry is a screening mechanism for the purpose of determining whether the Crownhas sufficient evidence to commit the accused to trial... However, there is no constitutional right to a preliminary inquiry or to theoutcome of such an inquiry...

Dispensing with the screening process therefore does not result in a deprivation of fundamental justice, since the accused continues to bepresumed innocent and retains the right to make full answer and defence... [22] Similarly, although the preliminary inquiry may also allow an accused to test the credibility of witnesses and better appreciatethe Crown's evidence...such incidental benefits do not give rise to a constitutional right to this proceeding... [23] Moreover, since R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, R. v. Egger, (SCC), [1993] 2S.C.R. 451, R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, R. v.

La, (SCC), [1997] 2 S.C.R. 680, R. v.Dixon, (SCC), [1998] 1 S.C.R. 244, and R. v. Taillefer, 2003 SCC 70 , [2003] 3 S.C.R. 307, an accused hashad a right under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminary inquiry, butthe Crown's duty in this respect does not extend to producing a witness for discovery: R. v. Khela, (SCC), [1995] 4S.C.R. 201, at para. 18.

Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of itsrelevance... [24] The reforms effected by Parliament in 2002 - which made the preliminary inquiry optional, authorized agreements to limit thescope of the preliminary inquiry and authorized the holding of a pre-hearing conference, inter alia to promote a fair and expeditiousinquiry - also tend to reduce the number of preliminary inquiries and their length (S.C. 2002, c. 13, particularly ss. 25 and 27, whichcame into force on June l, 2004).

These amendments show clearly that the trend is toward the adoption of mechanisms that are betteradapted to the needs of the parties, not the imposition of more inflexible procedures... [5] The issues before this Court are: (1) is the DVD of the interview between B. L. and Constable Pescolla of the RCMP credible or trustworthy under s. 540(7) of theCriminal Code and therefore admissible into evidence?; and (2) pursuant to s. 540(9), whether the defendant should be allowed to cross-examine B.

L. as part of this preliminary inquiry. [6] The Crown has produced a DVD with the video and audio interview between Constable Pescolla and B. L. The Crown statesthat there is a credible or trustworthy element as B. has told her story and that Constable Pescolla took the necessary steps to understandthat B. L. understood the truth of the matters that she was reporting on to Constable Pescolla. [7] The Defence argument is essentially that more could have been done by Constable Pescolla to ensure the statement is credibleor trustworthy. The Defence points out there is no unequivocal statement by B.

L. that she understands the importance of telling thetruth, and that there were leading questions that perhaps raise issues of credibility. The Defence urges the Court to be wary about the

circumstances in which the statement was made. [ 8 ] I now turn to the law as it concerns 540(7), and of note is a case that was discussed by both Crown and Defence of R. v. C.A.C. , 2011 BCPC 170 , a decision of the Honourable Judge Merrick. This was a case where the DVD was found not to be credible or trustworthy. The Honourable Judge's comments at the beginning at paragraph 12 are worth repeating: [12] With respect to the scope of a preliminary hearing, it is not a paper hearing. See R. v. Francis .

See also s. 541 of the Criminal Code . [13] The preliminary inquiry should proceed with the court receiving evidence on matters that are in issue, recognizing that there is also a discovery component to the hearing. See s. 536.2 of the Criminal Code . [14] Examination and cross-examination of witnesses should occur subject to s. 540(7) and 540(9). [15] So what should occur when, as in this case, Crown counsel seeks admission of the statement made by the complainant, who is a child, to a police officer?

Essentially the complainant is the case against the accused, although I acknowledge that the complainant's mother is also a required witness. That said, the case against the accused really comes down to the complainant's evidence. [16] So the question is, would I be prepared to order an accused to stand trial based on a statement, assuming the requirements of s. 548(1)(

a) have been met? That is essentially the test is USA v. Sheppard . [17] The answer to that question is yes, in certain circumstances. Those circumstances are when the Crown has proven, on a balance of probability, that the statement is either credible or trustworthy. At a minimum, that means that the child understood the importance of telling the truth, and the statement was not a product of leading questions.

I have reviewed the statement, and I am of the view that it is not a product of leading questions. [18] In terms of assessing the complainant's understanding of the importance of telling the truth, this is the exchange between the complainant and the officer [as read in]: Officer: Um, so one of the things that I want to tell you is that, um, everything that I say to you today is going to be the truth. Complainant: Mm-hmm. Officer: Uh, I promise that whatever I say to you is the truth and that there are no secrets here and that we can talk about anything that we want.

Complainant: So how long do you think it's going to take? Officer: Um, not very long. Complainant: Mm-hmm. Officer: Why, are you worried about how long it's going to take? Complainant: No. Officer: Okay. But I want you to promise me that whatever you're saying, it's going to be the truth too. Complainant: Mm-hmm. Officer: Is that a promise? Complainant: Yes. Officer: Okay. Complainant: On my soul. Officer: On your soul. You're the sweetest thing. Complainant: No, I'm really not. Officer: You're just being sweet because you just met me? Complainant: No. Well, 'cause everybody in my school thinks I'm a dick.

Officer: Really? Complainant: Yeah. [19] In my view, that exchange does not support a finding that the complainant understood the importance of telling the truth. When asked to promise to tell the truth, the complainant's response was equivocal. The officer then asks if it is a promise, and the

complainant's response prompts a further request by the officer. The complainant then remarks the promise is on his soul, to which theofficer responds the complainant is so sweet, and concludes with the complainant denying he is sweet, and relating what other peoplethink of him. [20] That, to me, calls into question whether the complainant understood the importance of telling the truth. The officer failed, in myview, to ensure the complainant understood that this is a serious matter, that it should be taken seriously, that he should tell the truth, thewhole truth, and that it was not okay to tell even one lie.

Nor did the officer discuss with the complainant what the consequences are forone who lies. [21] I therefore find that the Crown has failed to prove on a balance of probabilities that the statement is either credible or trustworthy,and the application is denied. [22] With respect to C.A.C.'s application, pursuant to s. 540(9), that the complainant appear for the purposes of cross-examination, Iwould have granted it. The complainant is essentially the case against the accused, and the areas of proposed cross-examination, motiveto lie, and circumstances surrounding the taking of the statement are relevant.

Also, cross-examination of the complainant in thecircumstances of this case fulfills the ancillary role of discovery which is part of the preliminary inquiry. [9] In addition, both Crown and Defence have pointed to the case of R. v. Vaughn 2009 BCPC 142. This is a case which is a rulingof the Honourable Judge K.D. Skilnick.

Judge Skilnick goes into an in-depth analysis as to ss. 540(7) and 540(9) and, states the issuesthat should be considered by a judge at a preliminary inquiry. [10] At paragraphs 8-9, titled "Considerations on an Application under Section 540(7)": This subsection came about as part of the 2002 amendments to the Criminal Code which revised

Part XVIII of the Code (PreliminaryInquiry). One of the first reported cases judicially considering this subsection was R. v. S.P.I (2005), 2005 NUCJ 3 , 193 C.C.C.(3d) 240; 27 C.R. (6th) 112 (Nunavut C.J,). In that case the Crown sought to provide sufficient evidence to commit the accused to standtrial on 13 counts of sexual assault and sexual touching against children by playing videotaped and audiotaped statements from 6witnesses. The statements were introduced through the investigating officer. In considering the application, Johnson J. made theseinitial observations: (

a) the discovery purpose of the preliminary inquiry has been significantly eroded with the institutionalization of the disclosure rules setout in R. v. Stinchcombe; (

b) a court cannot make credibility findings at a preliminary inquiry; (

c) one of the objectives of these amendments to the Code was to better protect complainants and witnesses (as stated by the Minister ofJustice in introducing the legislation); (

d) in applying these sections of the Code, the courts must strike a balance between protecting witnesses and allowing the accused tounderstand the case he or she must meet. [11] Further, at paragraph 15, Judge Skilnick says as follows after doing a review of cases under the law. He writes: These cases give examples of what sorts of factors will be considered in determining if statements meet the threshold for admissibilityunder section 540(7). Without intending to create an exhaustive list of these factors, some of them are: (

a) an assessment of the child's understanding of the importance of telling the truth; (

b) establishing that what is presented is the complete interview or if there are portions of the interview or of the preparation of the childfor the interview that are not on the tape and are not otherwise accounted for; (

c) assessing whether or not the interview has been tainted or contaminated in some fashion; (

d) the use of non-leading questions; (

e) the reliability of any transcript of the interview; (

f) the atmosphere in which the interview was conducted; and (

g) the presence or absence of any confirmatory or corroborating evidence. [12] Further, at paragraph 27:

What must be kept in mind is that subsection 540(7) does nothing to change the standard for committal. In determining whether evidence proposed under this

section is credible and trustworthy, the answer to that question ought not alter the test for committal. [ 13 ] What Judge Skilnick concludes in paragraph 26, of particular note, is at 26(e): When section 540(7) speaks of admitting evidence which is "credible or trustworthy", credibility does not have the same meaning which it would have at trial. Nor does it mean the same as evidence which is "necessary and reliable" as in the case of the principled exception to the hearsay rule.

It must at least have a prima facie air of reliability to allow it to be admitted under this subsection. [ 14 ] In this case, applying these principles of the law, what I have to look at is whether the DVD and transcript of the interview between B.

L. and Constable Pescolla is evidence that is credible or trustworthy. [ 15 ] In her submission, on the terms “credible or trustworthy” the prosecutor argued the opposite of truth is an untruth versus a lie which is something that is calculated to deceive. [ 16 ] I have the decision of Judge Merrick in C.A.C. where the police officer, doing the interview with the complainant and attempting to obtain the promise to tell the truth, got thrown off the line of inquiry and, as Judge Merrick found, failed to establish the standard. [ 17 ] Considering these two points I note the transcript, on page 3, between line 76 and sequence, Constable Pescolla states: QU: And then the third reason...in this room we only talk about the truth.

AN: Why? QU: Do you...do you know what...do you know...what happens when you don't tell the truth? AN: Ahm...what? QU: Do you know what happens? AN: No. QU: No? AN: Well I know what happened about me. QU: Do you? AN: Yeah, well... QU: But, okay...just fin...let's...let's talk about the truth. Do you know what the truth is? AN: Yeah. QU: Yeah? So it's...what is it? AN: It is...well...when... QU: Let me help you...oh, go ahead. And then the answer is: AN: Well, ahm my uncle woke me up in the middle of the night and he went to the bathroom with me. And sat him on my lap...on his lap, sat me on his lap.

QU: Yeah. [ 18 ] So then there was a divergence from Constable Pescolla's line of inquiry, which is then picked up again at the bottom of page 4 at 109: QU: Do you know how many sleeps? Six. Okay. That's a long time. So B., do you remember when I was telling you about the truth? AN: Uh huh. QU: Uh huh? So let's say here, I have this book. Right? AN: Yeah. QU: And I say that the book is underneath the table. Am I telling the truth?

AN: Uh huh. QU: Is it underneath the table? AN: No. QU: Where is it? Where is that? AN: On your head. QU: On my head. So I am not telling the truth. Right? AN: Yeah. QU: Because if I said this is on my head, then that would be the truth? AN: And if it wasn't you would be the truth. QU: I'm lying right?

AN: Right. [ 19 ] I have determined that while Constable Pescolla's inquiry concerning B.'s understanding of telling the truth was not perfect, it is, sufficient in the circumstances for the statement, DVD, and transcript to be admitted as credible or trustworthy. [ 20 ] At paragraph 15 of the Vaughn decision, the points that were set out as the considerations by a preliminary inquiry judge are applied as follows: (

a) I find that B. L. understood the importance of telling the truth; (

b) I find that the video and the transcript appear to be complete and that there is no evidence of any portions that are unaccounted for; (

c) there is no apparent tainting or contamination in some fashion; (

d) while there are some leading questions that may pertain to some of the issues, I find that on the main issues that the inquiry was generally based on using non-leading questions; (

e) I accept Constable Pescolla's evidence that the transcript is a reliable copy of the interview and the DVD; and (

f) There is some corroborating evidence from the testimony of S. L. and the drawings that the Crown entered into evidence. [ 21 ] So having admitted the DVD and transcript, I now turn to the Defence application to cross-examine B. L. [ 22 ] The Crown has argued, essentially, that B. is a vulnerable witness, being five years old, and I can certainly accept that any five- year-old would be a vulnerable witness. I note from the testimony of S. L. at the preliminary inquiry that she was of the opinion that if B. had to testify twice, she might - I think she used the words - shut down , that this would be detrimental.

In Mr. C. L.'s opinion ventured on the first day of this preliminary inquiry in May of 2014 he suggested that B. may well be empowered to tell her story, but his evidence on this was inconsistent because at times he indicated that it would be detrimental to B. to testify. [ 23 ] The Crown argues under Stinchcombe that they have provided full disclosure to the Defence. The video of the interview and video and audio is clear and accurate, that cross-examination of B.

L. would not be relevant and not appropriate at the preliminary inquiry given (1) her age and (2) the scale of disclosure. [ 24 ] The Defence has argued that there is a need for cross-examination. There are some aspects of the statement video that need to be explored further in cross-examination. I note from paragraph 26 of the written submissions on behalf of Mr.

Horswill that such areas of cross-examination identified are: 1. coaching; 2. inconsistencies between videos (just for the record that while the Court did see the first video and statement of the interview conducted on 25 July 2013, there was a subsequent interview that was placed on DVD that was conducted on 4 September 2013. This DVD was not played at the preliminary inquiry, but has been provided to the Defence as part of the disclosure); 3. the circumstances surrounding the statement; 4.

B.'s reference to a dream that she had about the events that are subject of this prosecution; 5. discussions B. had with her mother and father about what happened.

[ 25 ] In R. v. Vaughn , Judge Skilnick concluded at paragraph 41: (

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

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

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

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

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

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

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

g) If the preliminary hearing judge concludes that the proposed cross-examination is both relevant and appropriate, an order under subsection (9) should be granted. [ 26 ] In this matter, I find that cross-examination of B. L. would be relevant and appropriate, and I make the order under s. 540(9) that she be produced by the Crown for cross-examination. The reasons are as follows: 1. The Accused has a legitimate interest in preparing his defence and bringing out at the preliminary stage the insufficiency or the weaknesses of the Crown's evidence. 2.

The proposed areas of cross-examination are relevant to that defence namely the steps in the making and taking of the statement. I note in particular the list from R. v. Vaughn at paragraph 41 (e), issues of coaching, motive to fabricate, and the circumstances surrounding the making of the statement. 3. At 41(f), I have to consider what is appropriate. B. L. is a vulnerable witness, but the Court has a role of protecting vulnerable witnesses from abuse of cross-examination. [ 27 ] I have considered the parents' testimony about the effect of B. L. testifying.

Evidence of the feared effect is based on their observation. This has some weight in my decision but it was not persuasive. The issue was raised by the defence in the case of R. v. Rockey that some expert evidence is required if the Crown is going to rely on any kind of long-term effects on the child from being cross-examined. The cross-examination will not touch on credibility but the other issues that were raised and that I have listed above. [ 28 ] Mr. Horswill is charged with a serious offence. I want it known that I do not make the order for B. L. to be produced for cross- examination lightly.

This order is not made simply on the principle of the right to cross-examine alone. I have had to determine a course that will balance needs of a vulnerable witness and the right of defence to assess the Crown case. [ 29 ] I note the decision of R. v. A.A. In that case, there was no order for cross-examination, but Defence in this case has raised issues concerning the transcript, and I am concerned about certain issues that are discussed in the transcript.

I have come to the conclusion that forcing the Defence to raise these matters in cross-examination at trial would be too late. [ 30 ] In addition to the order I have made under 540(9) for production of B. L. for cross-examination, I make a further order that the Crown has leave to take such measures as are provided in s. 486.2 of the Criminal Code to protect B. L. as a vulnerable witness, including use of a screen or testifying outside of the courtroom by video. [ 31 ] Those are my reasons in this matter. Thank you. (RULING CONCLUDED)