R. v. T.A., 2020 MBPC 59

CITATION: R. v. T.A. , 2020 MBPC 59 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) C. Reimer ) for the Crown ) and ) ) ) T.A. ) R. McElhoes Accused ) for the Accused ) ) ) ) Reasons for Decision delivered: ) October 26, 2020 Notice of Restriction on Publication In accordance with s. 486.4(1) of the Criminal Code , there will be an order directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way.

DEVINE, P.J. [ 1 ] The defence has opposed the Crown’s application to file the videotaped statement of a 10 year-old child in this case involving sexual offences allegedly perpetrated by her step father. The Crown has brought their application under s. 715.1 of the Criminal Code . The issue is whether the videotape was made “within a reasonable time after the alleged offence.”

Section 715.1 allows the child’s videotaped statement to be filed in court as their direct evidence if it was made within a reasonable time of the offence and if the child adopts the contents of the videotape after viewing a portion of it in court. [ 2 ] They can then be cross-examined after the videotape is admitted into evidence. [ 3 ] The approach taken to a determination of the timing is a contextual one, given the particular character of child sexual abuse offences. The history and circumstances of the offence and the impetus to provide the videotaped statement are therefore relevant.

The Circumstances [ 4 ] The accused is charged with sexual assault and sexual interference, both offences alleged to have occurred between the dates of January 1 and October 31, 2014. The offenses were alleged to have occurred when the child was between five and six years of age. The child’s birth date is August 22, 2008. She first disclosed the abuse to her mother on August 8 or 9, 2018, just before she turned 10 years of age. An incident occurred while their family was visiting with relatives – the adults were informed that she and a similarly-aged cousin had kissed.

Her mother and the accused talked to her about it and asked her if she wanted to tell them anything else. When she was alone with her mother, the complainant disclosed allegations about the accused to her mother. In the meantime, the accused had told her not to tell anyone, and not to tell her mother about what he was doing to her. She provided a videotaped statement to the police September 26, 2018. [ 5 ] The time between the last occurrence of alleged offending behaviour and the videotaped statement was a little under four

years. The time between the first disclosure of the offences and videotape was a little over a month.

Section 715.1 [6]

Section 715.1 states as follows: 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. [7] The test for admissibility of a videotaped statement pursuant to

section 715.1 is four part: - Was the witness under the age of 18 at the time of the offence? - Was the videotaped statement made within a reasonable time of the alleged offence? - Did the witness describe the acts complained of in the videotape - Did the witness adopt the contents of the videotape while testifying? [8] The standard of proof is a balance of probabilities. [9] In this case, there is no issue with respect to the child being under 18 years of age at the time of the alleged offences.

The trialhas not begun, so the child will still be required to adopt the contents of the videotape before it can be admitted. [10] The only aspect of the test that is at issue at this stage of the proceedings is whether the videotape was made within areasonable time of the alleged offence. [11] The defence also opposes the admissibility of the videotape on the basis that admitting the videotape would interfere with theadministration of justice and asks that I exercise my discretion to exclude it.

The Legal Context [12] The jurisprudence reflects that the purpose of the provision is to address under-reporting and low conviction rates of sexualcrimes against children, the treatment of children in the criminal justice system, and to obtain the best evidence of child sexual abusecomplaints. [13] Chief Justice Lamer wrote a concurring judgement to the minority decision in R. v. L.(D.O.), (SCC), [1993] 4S.C.R. 419, stating that the purpose of the provision was as follows: I have read the reasons of Justice L’Heureux-Dubé and concur in her result. It is my view that s. 715.1 of the Criminal Code , R.S.C.1985, c.

C-46, is a response to the dominance and power which adults, by virtue of their age, have over children. Accordingly, s. 715.1 isdesigned to accommodate the needs and to safeguard the interests of young victims of various forms of sexual abuse, irrespective of theirsex.

By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminaljustice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and thediscovery of truth.(at para. 1) [14] In her judgement, Justice L’Heureux-Dube set out the context in which the legislation exists and the challenge to it.

Asummary of the points she makes are as follows: • 75% of offenders are someone the child knows, trusts and loves; • This increases the pain the child experiences; • The abuse often continues for years; • Children often do not disclose for long periods of time for fear of telling; • The disclosure of the child often causes a rift in the extended family; • 80% of sex crimes are committed against children and young people under the age of 20 years; • One in four girls and one in ten boys will be sexually victimized before reaching the age of 18; • 98.8% of perpetrators are male; • The offence perpetuates sexual objectification of women and children and the highly gendered crime of sexual offending against

women and girls by men (at paras. 28-31; 77) [ 15 ] The Supreme Court of Canada upheld the constitutionality of s. 715.1 in L.(D.O.) , which had been challenged on the basis that it contravened the right to a fair trial and making full answer and defence protected by ss. 7 and 11(

d) of the Charter . [ 16 ]

Section 715.1 has subsequently been amended to allow for it to be used for all child witnesses who were under 18 years of age at the time of the offence and in all types of prosecutions, not only in child sexual abuse prosecutions. The other amendment to s. 715.1 includes a discretion to exclude the videotaped evidence if the judge believes that admission of the videotaped evidence “would interfere with the proper administration of justice”. “Within a Reasonable Time of the Alleged Offence” [ 17 ]

Section 715.1 does not establish a particular time frame in which the videotaped statement to police must be made, mainly in recognition of the delays in reporting in many cases of child abuse. A determination of whether the elapsed time between the last occurrence of alleged abuse and the making of the videotaped statement is a reasonable period of time will depend on the circumstances in any particular case. [ 18 ] The only reason for the four-year period between the time of the offence and the videotaped interview in this case is because the child did not disclose the abuse until four years after it ended.

Once disclosed, the mother and authorities moved with dispatch to preserve the details of the complaint. [ 19 ] It is well-settled in law that there can be significant delays in disclosure by children who have been sexually abused ( L.(D.O.) at paras. 29 and 77 ; R. v. P.S. 2019 ONCA 637 at para. 21 ; R. v. B.(W.E.) , 2012 MBCA 23 at para. 20 )). [ 20 ] There were many reasons for the child to delay disclosing in this case, all legitimate and consistent with what we know from the jurisprudence: • The accused was the child’s father.

Although he is her step-father, and not her biological father, the child did not know that until after these allegations. He was her father from her earliest memory; • The accused had told her not to tell anyone, and specifically, not to tell her mother. He told her that if she told anyone it would ruin her mother’s life, everyone’s life, even her little brother’s life. He told her she would get into trouble if she told anyone; • She did not know if it was a good thing or a bad thing to tell someone about the abuse (p. 29, transcript); • The nature of the acts made the child feel uncomfortable.

She stated so in her interview, and her behaviour during the interview makes it very clear. The change in her behaviour when she was not being asked about the abuse and when she was asked about the abuse is marked. When not being asked about the abuse she was talkative, cheerful and laughing. When she was being asked to discuss the abuse, she was wringing her hands, became quiet, crossed her hands over her lap, and tapped and twitched her fingers.

After she told the officer about the offences alleged, and she was alone in the interview room, she began crying and she appeared to be very anxious, was holding her chest, and looked like she was trying to slow or regulate her breathing and calm herself by lifting her arms and then lowering them slowly; • She did not fully appreciate or understand the sexual nature of what was occurring, given her young age. [ 21 ] The other consideration in determining whether the videotape was made within a reasonable time is whether the gap has had an impact on the child’s ability to recall the events complained of.

It is recognized that the memory function of very young children is not well-developed, memories can fade more quickly and can be unreliable. Thus, to preserve the narrative of the impugned event accurately, it is important that the child’s memory is as accurate as can be expected, and not overly affected by the passage of time. In L. (D.O.) , Justice L’Heureux- Dube cited an

article indicating that although children may have clear and accurate memories at the time of the occurrence, studies illustrate that their memories may fade faster than the memories of adults. Accordingly, it is advisable to have the statement taken as close to the events as is reasonable (at paras. 78–79). [ 22 ] I watched the videotaped interview. The child is articulate and responsive to the questions being asked. This is not a case where she could not recall the events complained of.

She provided significant detail in describing two discrete events, for example: • During the first event, she described the bedroom walls as greyish, with one purple wall; • She was on her parents’ massive bed – a queen or a king; • Her dad went to the shower and she was watching t.v. in their room; • She described the dress she was wearing in detail, pointing out it had blue lace, but fabric under the lace so you couldn’t see through, a colourful bottom and a belt.

Her grandma got her the dress in Mexico; • Her dad came back wearing a purple towel; • She described how he was rubbing his penis on her bum; • She said he grabbed her hips; • She described seeing his “balls” on the edge of the bed; • When she was asked whether his penis was hard or soft, she answered, “Like gentle.”

[23] This is unlike the case of R. v. A.G.B. (No.3), 2011 ABPC 260 where the complainant was unable to recall collateral facts. [24] The legislation does not nor could it require that expert evidence be tendered by the Crown to prove reliability of the child’smemory. As with all witnesses, the child’s evidence is scrutinized for its credibility and reliability.

At the threshold stage ofdetermining admissibility of the videotaped statement, the Court needs to be satisfied only that the passage of time has not affected thechild’s memory to the extent that the information in the videotape is patently unreliable. [25] The Ontario Court of Appeal cited with approval the trial judge’s ruling in P.S. that the approach to be taken must be a“sensible” one: In the end, what constitutes a reasonable time requires a sensible approach. If a sensible approach, in my view, is not taken, it woulddefeat the very purpose for the enactment of the legislation.

One has to remember that the statement's admissibility is different from theconsideration of the ultimate weight and reliability. The weight and reliability cannot be determined until the court undertakes anassessment of all of the evidence after all witnesses have testified and all submissions have been made. (at para. 29) [26] In this case, the videotaped statement was significantly delayed because the child did not disclose the alleged abuse.

Thecircumstances of the allegations – by her father, threats if she told, her young age and not comprehending what was going on, plus afeeling of discomfort – are very commonly the reasons that children do not disclose abuse for a period of time, sometimes for years oreven decades. (In R. v. B.(W.E.), 2012 MBCA the videotapes were admitted where the delays were 9½ years and 14 years.) I am satisfiedthe child sufficiently remembered the circumstances of the allegations to allow the allegations to be admitted into evidence.

Thus, I findthat in the circumstances of this case, the videotape was made within a reasonable time. Residual Discretion to Exclude the Videotaped Statement [27] It is only after determining that the videotape was made with a reasonable time that the judge may exercise their discretion toexclude the videotape if admitting it would be interfere with the proper administration of justice. This is before determining the weightto be given to various parts of the statement or all of it, after an analysis of the credibility of the witness and overall reliability of herevidence. (R. v.

F.(C.), (SCC), [1997] 3 S.C.R. 1183 at para. 46) [28] Although the legislation at the time L.(D.O.) was decided did not contain the subsequent discretion allowing a judge to excludea videotaped statement under s. 715.1 on the basis that its admission would interfere with the proper administration of justice, JusticeL’Heureux-Dube suggested a number of factors that should be taken into account in exercising such a discretion: (

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 on thevictim); (

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 to theevents described. (at para. 67) [29] In the subsequent Supreme Court decision of F.(C.), Justice Cory for the Court stated: . . . Both L. (D.O.) and T. (W.P.), supra, indicate that, at this stage, the trial judge may exercise his or her discretion to exclude thevideotaped statement if prejudice from its admission would outweigh its probative value. The discretion to exclude the videotape islimited to those cases where its admission would operate unfairly to the accused.

Those cases will be relatively rare... (at para. 51) [30] None of the factors listed by Justice L’Heureux-Dube are present or relevant in this case, other than the passage of time and theability of the child to relate the events described, both of which I have already determined are not bars to admitting the videotapedstatement into evidence in this case. [31] In conclusion, I find that the videotaped statement was made within a reasonable time of the alleged offences and that admittingit will not interfere with the proper administration of justice.

Pending the child’s adoption of the contents of the videotaped statement, itis admissible into evidence. “Original signed by:” DEVINE, P.J.