R. v. K.R., 2019 ONCJ 967

CITATION: R. v. K.R., 2019 ONCJ 967 DATE: October 9, 2019 Information No. 18-Y882 ONTARIO COURT OF JUSTICE YOUTH CRIMINAL JUSTICE COURT HER MAJESTY THE QUEEN v. K.R. P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE H.S. AMARSHI on October 9, 2019, at BRAMPTON, Ontario A. Nigro.................................................................................................. counsel for the Crown M. Owoh............................................................................................................ counsel for K.R.

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE H. S. AMARSHI, ONTARIO COURT OF JUSTICE

RULING ON APPLICATION Delivered Orally H. S. AMARSHI J.: Overview 1 .

Section 715.1 of the Criminal Code provides a statutory exception to the common law rule against hearsay evidence by allowing for the admissibility of an out-of-court statement. There are four evidentiary criteria for admission:

(1) The witness is under the age of 18 at the time of the offence – that is not disputed in this case.

(2) The video must have been made within a reasonable time following the alleged offence.

(3) The witness must describe the acts complained of, and;

(4) The witness must be able to adopt the comments of the videotape while testifying and be available for cross-examination. 2 . Mr. Owoh has challenged the admissibility of a third statement made by the complainant on September 29, 2019. Counsel has reasonably conceded the admissibility of two previous video statements, taken on July 27, 2018 and September 3, 2018. The third statement, however, was taken just over a week before the commencement of this trial and comes 14 and a half months after the alleged incident. Mr.

Owoh argues that the taking of the video statement does not meet the statutory pre-conditions, specifically it was not taped within a reasonable time after the alleged offence. He submits that the main purpose of the

section –

section 715.1, is to create a record of what is likely the best recollection of events that occurred on July 23, 2018. That purpose is defeated he argues because of the significant period of delay between the making of the third video statement and the alleged incident. Relevant Background 3 . A review of the factual context is necessary for this ruling. Detective Constable Eric Anderson testified in support of the Crown’s application to have the videotape admitted as part of S.E.’s evidence.

He stated that on September 26, he along with the assigned Crown in this case and a representative from the Victim Witness Assistance Program (VWAP) met with S.E. at the Brampton courthouse. At this meeting, the complainant was provided with some basic information, specifically what she was to expect in a criminal trial and the accommodations the Crown would be seeking when she testified – that being the use of a video link and that a support dog be made available.

After that information was conveyed, Crown Counsel and Detective Anderson left S.E. with a representative from VWAP, so that she could watch her previously recorded statements. 4 . At some point after the complainant left the courthouse that day, Crown Counsel was alerted that S.E. had left behind her subpoena and handwritten notes in the meeting room. Detective Constable Anderson was also contacted. Those notes which were made an exhibit in this admissibility voir dire contained timestamps related to areas of S.E.’s videotaped statement that she wished to clarify.

Specifically, she wanted to clarify two areas of her video-taped evidence – first, an explanation as to why she requested the Young Person use lubricant during intercourse and second, additional details as to the positioning of her body during the alleged sexual assault. As a result, a third video-statement was taken by Officer Anderson just over a week ago. The Crown argues that this is not new disclosure but an effort on the part of the complainant to clarify her evidence previously recorded. 5 . As part of this voir dire , the third statement was played in court.

The video bears this out and S.E. clarifies and, to an extent, expands on the details from the previous recorded statements. The complainant does speak to the impact of the alleged assault on her emotional wellbeing. She has covered this topic in a previous video statement. Subject to an argument on relevance, which I would be open to hearing, those comments have no bearing on my determination of culpability in this case and I will disregard those portions of her recorded statements. Applicable Principles

6. The onus is on the Crown based on a balance of probabilities to demonstrate a videotaped statement was taken within a reasonabletime – the relevant period being the time between the alleged offence and the making of the video. 7. Upon review of the case law in relation to s. 715.1 applications, this fact scenario is unique. Most of the reported cases deal withsituations where there is a delay in the initial disclosure of sexual abuse to police, usually involving a child of tender years.

What is clearfrom the cases however, is that the assessment of reasonableness requires a case by case analysis, and there are no defined limits as towhat period it would be considered unreasonable. 8. Most recently, in R. v. P.S., 2019 ONCA 637, at paragraph 19, the Ontario Court of Appeal rejected a hard and fast rule on timelimits and noted that “Parliament left it to the courts to determine reasonableness in the specific circumstances of each case.” The Courtfurther stated, “Strict timelines stand in direct opposition to the nuanced and case-specific analysis called for in a reasonablenessinquiry.” 9.

In this matter then, it is probably best to review first principles. In R. v. C.C.F., (SCC), [1997] 3 S.C.R. 1183, theSupreme Court of Canada sets out the purpose of

section 715.1. At paragraph 21, the Court stated: The primary goal of the

section is to create a record of what is probably the best recollection of the event that will be of inestimableassistance in ascertaining the truth. And at paragraph 22: The important subsidiary aim of the

section is to prevent or reduce materially the likelihood of inflicting further injury upon a child as aresult of participating in court proceedings. 10. In considering whether a videotaped statement has been made within a reasonable time, this Court must balance a number of factors –the most important being the reasons for the delay and the impact of the delay on the child’s ability to accurately recall the events inissue – see R. v. L.(D.O.), (SCC), [1993] 4 SCR 419. 11.

In this case, there is an explanation for the delay, although I note again the case law in this area largely deals with instances when theinitial disclosure to police of sexual abuse was delayed, which is not the situation here. S.E. reviewed her videotaped statement during awitness preparation meeting and wished to clarify two areas of her recorded statement. Those initial statements were made shortly afterthe alleged offence on July 23, 2018 and there is no issue that they conformed to the requirements of

section 715.1. In other words, thethird video statement which is subject of this admissibility hearing is tethered to the previous statements. It is not a matter of newdisclosure or facts not previously mentioned. 12. I further note that the purpose of requiring that the videotape statement be made within a reasonable time following the allegedoffence is to ensure its accuracy before the passage of time impacts a child’s memory. This is not the case here – S.E. just turned 19 andthe same concerns we have about a young child’s evidence are not present here. 13.

I must also note that this subject matter has been difficult for the complainant which is not unexpected. At one point, we had to take abreak in the proceedings because S.E. could not continue with her evidence. This may not be the most significant factor in the analysis,but the Supreme Court of Canada was clear in R. v. C.C.F. that anything that can be done to ease the traumatic effect of testifying upon ayoung witness should be encouraged. 14.

Having considered the totality of the circumstances, I have concluded that the introduction of the third videotape would not have aprejudicial effect greater than its probative value. 15. As Justice Cory stated in R. v. C.C.F. “The discretion to exclude the videotape is limited to those cases where its admission wouldoperate unfairly to the accused. Those cases will be relatively rare.” 16. This is not one of those cases.

17 . The delay in this situation of over 14 months since the alleged offence does not significantly impact, in my view, the ability of the complainant to accurately recall events from that day. S.E.’s age is a significant factor in this conclusion. I did not consider this delay to have been too long as to undermine the reliability of the complainant’s statement. 18 . For these reasons, if S.E. adopts the contents of the third video recorded statement, then I find that the Crown has satisfied the statutory requirements of

section 715.1 and the statement is admissible.