R. v. V.O.S., 2021 BCPC 359

Citation: R. v. V.O.S. 2021 BCPC 359 Date: 20210514 File No: [omited for publication] Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. V.O.S. Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4(1) of the Criminal Code restricting publication, broadcasting or transmission in any way of evidence that could identify the vitctim or witness. This publication ban applies indefinitely unless otherwise ordered. RULING ON VOIR DIRE RE:

SECTION 715.1 CRIMINAL CODE VOIR DIRE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: S. Meldrum Counsel for the Accused: A. Turton, Q.C. Place of Hearing: [omitted for publication] , B.C. Date of Hearing: May 5, 6, 7, 2021 Date of Judgment: May 14, 2021

[ 1 ] This is my ruling on the voir dire . I have edited names in the judgment, with the exception of police officers, in order to protect the privacy of the persons involved. Introduction: [ 2 ] V.O.S. is charged with two counts in [omitted for publication] Court Information [omitted for publication]: Count 1 (as vetted) V.O.S., from the 1 st day of May, 2012 to the 1 st day of October 2012, inclusive, at or near [omitted for publication], in the Province of British Columbia, did sexually assault K.D., contrary to

Section 271 of the Criminal Code . Count 2 (as vetted) V.O.S., from the 1 st day of May, 2012 to the 1 st day of October 2012, inclusive, at or near [omitted for publication], in the Province of British Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of K.D., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code . [ 3 ] The Crown proceeded by indictment. On May 5, 2021, V.O.S. elected to be tried by a Provincial Court Judge and he entered pleas of not guilty to both counts. [ 4 ] K.D. is currently 16 years of age. She will be turning 17 shortly. The alleged offences occurred when K.D. was eight years of age. K.D. was 11- years-old when she gave her video-recorded statement to RCMP Constable Sedgman on August 9, 2015. [ 5 ] At the start of the trial, the prosecution applied for what is commonly referred to as an s. 715.1 Criminal Code voir dire .

The prosecution seeks a ruling pursuant to s. 715.1 of the Criminal Code that the August 9, 2015, videotaped interview of K.D. is admissible in the trial proper. The DVD of the interview is voir dire exhibit E. The prosecution also seeks to have exhibits A, B, C and D from the voir dire ruled admissible in the trial proper. Exhibits A, B, C and D are: Exhibit A: Transcript of the August 9, 2015, interview of K.D. by Constable Sedgman as recorded on the small audio recorder. The transcript has been reviewed and edited by Constable Sedgman.

Exhibit B: Diagram of little girl (utilized during the August 9, 2015, videotaped interview). Exhibit C: Diagram of little boy (utilized during the August 9, 2015, videotaped interview). Exhibit D: Diagram of tent (utilized during the August 9, 2015, videotaped interview). [ 6 ]

Section 715.1 (1) reads as follows: 715.1(1) I n any proceeding against an accused in which a victim or other witness was under the age of eighteen 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 or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

The Issues on the Voir Dire [ 7 ] The prosecution and the defence are in agreement that: 1. K.D. was eight years of age at the time the offences were allegedly committed; 2. K.D. describes the acts complained of in the August 9, 2015, video recording; and 3. K.D., while testifying in the voir dire , adopted the contents of the August 9, 2015, video recording. [ 8 ] As a result of the agreement of counsel set out in paragraph 7, there remain three issues on this voir dire that I need to decide: 1.

Was the August 9, 2015, video recording of K.D.’s statement made within a reasonable time after the alleged offence(s) ? 2. Will the admission of the August 9, 2015, video recording in evidence at the trial interfere with the proper administration of justice? 3. Are the transcript of the August 9, 2015, interview and the aids utilized by Constable Sedgman when taking K.D.’s statement on August 9, 2015, (exhibits B, C and

D) admissible at trial? Background Legal Context: [ 9 ] I adopt Judge Doulis’ reasoning at paragraphs 43 to 51 in R. v. K.S.T. , 2018 BCPC 57 , as to the legal context in which s. 715.1 operates: 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 of

having 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 purposes of s.715.1 are to create a record which is probably the best recollection of the event that will be of investigative assistance in ascertaining thetruth and to make participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but alsoaids 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 in whichthe video was made, the veracity of the witness’ statements, and the overall reliability of the evidence are factors relevant to weightrather 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 “prior statement,combined with the complainant’s in-court evidence, may well afford a more complete version of the complainant’s evidence.” The Courtconcluded at para 45, “An adopted videotaped statement should, together with the viva voce evidence given at trial, comprise the wholeof 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 the witness’examination-in-chief and does not constitute a prior consistent statement nor corroboration. Recently, R. v. Untinen, 2017 BCCA 320, the B.C. Court of Appeal clarified that it is appropriate for a judge to consider internal consistency in the way a complainanthas related her account over time to assess a defence attack on the complainant’s credibility or the reliability of her evidence, when thatattack 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 admitted forthe 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 with theproper 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. [10] I also adopt Judge Doulis’ reasoning in paragraph 20 of R. v. J.M., 2019 BCPC 50: [20] Even if defence counsel agrees to the admissibility of the video-recorded statement, the trial judge has a duty to ensure it meetsthe s. 715.1 requirements. It is the trial judge, not counsel, who must be satisfied the video-recorded statement meets the s.715.1 requirements: R. v. P.W.M, 2018 PECA 24 , at para, 14 citing R. v. R.A.H., 2017 PECA 5 , paras. 50, 53.

Evidence on the Voir Dire [11] The prosecution called three witnesses on the voir dire: Constable Sedgman, K.D.’s mother, L.T. and K.D. The defence electedto call no witnesses. Constable Sedgman: [12] Constable Sedgman has been a police officer with the Royal Canadian Mounted Police (“RCMP”) for 14 years. She is trained inthe interviewing of children, including children who have been the victim of sex crimes. Her only involvement in the present case was

arranging for and then interviewing K.D. at the [omitted for publication] RCMP Detachment on August 9, 2015. [ 13 ] On August 8, 2015, a Constable Baird asked Constable Sedgman to interview K.D. Constable Sedgman agreed. Constable Sedgman contacted L.T. and arranged for L.T. to bring K.D. to the [omitted for publication] RCMP Detachment at 1:30 p.m. on August 9, 2015, for a videotaped interview. [ 14 ] On August 9, 2015, Constable Sedgman prepared the [omitted for publication] RCMP Detachment interview room by ensuring that both the video recording equipment and a separate small audio recorder were functional.

At approximately 1:30 p.m., she enabled both the video recording equipment and the separate small audio recorder, and then went to the lobby of the detachment and greeted L.T. and K.D. Constable Sedgman brought K.D. to the interview room and proceeded to interact with K.D. At all times, Constable Sedgman acted in a professional manner and at no point in interviewing K.D. did she ask inappropriate questions or suggest answers to K.D. [ 15 ] During the course of interviewing K.D., Constable Sedgman prepared three documents: exhibits B, C and D.

Constable Sedgman utilized the three documents as aids during the course of her interview of K.D., by both: i. listening to what K.D. said and then recording the answer in writing on the respective diagram; and ii. getting K.D. to point at the diagrams and name what she was pointing at. [ 16 ] Following the completion of the August 9, 2015, interview, a written transcript was produced of the recording on the small audio recorder. Constable Sedgman reviewed and corrected the written transcript of the interview that was transcribed from the small audio recorder. It is exhibit A.

L.T.: [ 17 ] During the summer of 2015, L.T., mother of the then 11-year-old K.D., ran into her cousin, E.W., at the Walmart store in [omitted for publication], British Columbia. E.W. has a daughter, D.W. who is close in age to K.D. and who was, at the time, a friend of K.D. E.W. and L.T. had a conversation. Based upon what E.W. told her, L.T. feared that something of a sexual nature had occurred between K.D. and V.O.S. during a sleepover several years earlier. [ 18 ] Approximately one hour after L.T. spoke to E.W. at the Walmart, L.T. met with and spoke to her daughter, K.D.

In recounting for the Court what she asked her daughter during this initial conversation, L.T. stated, “I just asked her if V.O.S. did something to her at a sleepover…Anything to her, like touched her.” L.T. clarified that she told K.D., “… my cousin told me this happened. … Is it true?" L.T. went on to say she told K.D. that if the information her cousin told her were true, they would have to report it to the police. [ 19 ] In describing for the Court how the initial conversation with K.D. progressed, L.T. confirmed that K.D. was angry, upset and hurt at being questioned.

L.T. stated, “ She didn't want to answer at first. She told me a while later. She said, yes, he did do something to her, but she didn't want to give me too much details.” However, K.D. did say, “Yes, an incident did happen at the sleepover.” [ 20 ] Approximately 30 minutes later after the initial conversation, L.T. spoke with K.D. again. Concerning this second occasion, L.T. testified that K.D. told her, “…yes, she wanted to report – wanted me to report to the police that something did happen to her in the tent.” L.T. then telephoned the RCMP and reported the matter.

L.T. scheduled an interview for K.D. with a police officer for approximately one week later. L.T. and K.D. did not discuss the matter further. [ 21 ] When asked about the police interview, L.T. stated that she and K.D. attended to the [omitted for publication] RCMP Detachment for the interview a week later, however, the RCMP initially assigned a male police officer with the task of interviewing K.D., and K.D. was not comfortable talking about the matter with a male police officer.

As no female police officers were available to interview K.D. at that time, a new interview date was set for the following Sunday, August 9, 2021, with a female police officer. [ 22 ] In direct examination, L.T. stated that since the date she first talked to K.D. about what happened with V.O.S., K.D. has spoken to counsellors, but she has not spoken with K.D. about what happened between K.D. and V.O.S.

During cross-examination, L.T. confirmed that prior to L.T. speaking with her cousin E.W. at Walmart, K.D. had not spoken to L.T. about the alleged incidents. [ 23 ] L.T. also confirmed in her evidence that her brother, K.R. is married to a woman named L.R. They have two children, one of whom is M.R., a cousin and good friend K.D.’s. The accused is L.R.’s father and K.R.’s father-in-law.

L.T. recalls that in 2012, K.D. had a sleepover in a tent in the backyard of the complex where M.R. lived with her parents, but L.T. was unaware that V.O.S. slept in the tent with the children. [ 24 ] Finally, L.T. confirmed that she and K.D. identify as members of the [omitted for publication] First Nation. K.D.: [ 25 ] 16-year-old K.D. is currently in grade 11. She lives with her mom, dad and five siblings. [ 26 ] K.D. knows V.O.S. His relationship to K.D. is through marriage. K.D.’s mother, L.T., has a brother named K.R., who is married to a woman named L.R.

The accused is L.R.’s father and K.R.’s father-in-law. M.R. is K.R and L.R’s daughter. The accused is therefore M.R.’s grandfather. [ 27 ] During the examination-in-chief of K.D., Crown Counsel asked the following questions and received the following answers: Q K.D., I just have a few more questions I want to ask you. When you were looking at -- at the video that we -- we just finished now, do you recognize the person in that video? A Yeah.

Q Yeah, who is it? A Me. Q You? A Yeah. Q And who is the other person? A The police officer. Q And you -- do you remember talking to -- to the police officer on that day? A Yeah. Q Were you doing your best to tell the truth? A Yeah. Q Is there anything you want to change in that statement? A No. Q Do you recall the officer, when she was asking you some questions she -- she had a diagram and she was writing down some words, do you recall seeing that in the -- in the video? A Yeah. CNSL S. MELDRUM: I wonder if the witness could be shown Exhibit B? What exhibit is the little girl -- yes.

Q And do you -- do you recall that she asked you some body parts and she was writing them down? A Yeah. Q Does that look like the diagram that she was writing on? A Yeah. CNSL S. MELDRUM: And if she could be shown Exhibit C, that is the diagram of the boy? Q And do you recognize that picture of the boy with the words that are written down? A Yeah. Q Yeah. Does that look like the diagram that she was marking on? A Yeah.

Q And as -- as well, you recall that you were talking about who was in the tent, all the people that were in the tent, and do you recall in the statement that she was drawing -- she kind of drew a little tent and wrote some names down? A Yeah. CNSL S. MELDRUM: And I'd ask if the witness could be shown Exhibit D [indiscernible/voice low] diagram? Q And do you recall seeing her write the names down on that paper? A Yeah. Q Yes? Okay. Now, before you gave the statement to the police officer, the statement that we just saw on the video, did you talk to anyone about Mr. -- about what Mr. S. -- Mr.

S. did to you when you were in the tent? A Yeah, my cousin. Q Your cousin? A Yeah. Q And what is your cousin's name? A D. Q What is her last name? A W.

Q W., like [omitted for publication]? A Yeah. Q And is D. -- what is D.'s mother's name? A E. Q And her last name is W. as well? A Yeah. Q Do you know how old D.W. is? A Around my age. Q Are you in the same grade as her? A I think so, yeah. Q And where did you have this conversation with D.W.? Where did you talk to D.W.? A In the washroom at our school. Q This is the school that both you and D.W. were going to? A Yeah. Q Do you know when that conversation took place? A Grade 4, I think. Q When you were in Grade 4? Have you ever failed any grades? A No.

Q Do you know how old you were when you started school for Grade 1? A I think six. Q I'm sorry, did you say six? A Yeah. Q And what did you tell D.W. about what happened in the tent? A She just asked me about it and then she asked me if it happened to me, too, and I said yeah. Q She asked me if it happened to me, too, and you said yes? A Yeah. Q Was that the only time you talked to D.W. about what happened? A Yeah. Q Other than -- and who else -- was there anybody else that you -- you told about what happened in the tent, other than D.W.? A Just one of my friends. Q Pardon me? A Just one of my friends.

Q One of your friends? A Yeah. Q And when was that, before you gave a statement or after you gave a statement? A After. Q Okay. So before you gave a statement, other than D.W. did you tell anybody -- did you talk to anybody about what happened in the tent? A No.

Q No? What about your mom? A She kind of knew like just before I gave the statement. Q Okay. What did you tell your mom? A Not much. Q Do you recall what you told her or what she asked you? A She asked me if it went in me and I said no. Q Okay. I'm sorry, she asked what? A If it went in me. Q Okay. Did you tell her anything else that happened? A No. Q What do you -- the time when your -- your mom asked you about what had happened in the tent, how long after did you go and give a statement to the police officer, do you remember? A I think it was like a few days after; I gave a statement after she found out.

Q When your mom asked you about what happened or if anything happened in the tent, the conversation that you had, was that the first time that you told your mom about anything that had happened? A Yeah. Q Is there any reason why you didn't tell her before? A Because I felt embarrassed. Q Now, after you gave a statement you said that you talked to your friend -- one friend? A Pardon? Q You said that after -- after you gave a statement to the police officer you indicated that you did talk to somebody about it, about -- to a friend? A Yeah. Q And what's the friend's name? A D.S. Q Pardon me? A D.S. [phonetic].

Q Okay. I should – D.? THE COURT: D.? A D.S. THE COURT: D. CNSL S. MELDRUM: Q D.S.? A S. Q S., okay. Sorry. And when was that? A I think 2018. Q. 2018? A Yeah. Q And did you give her details about what happened or -- A Yeah.

[ 28 ] During cross-examination, Ms. Turton asked the following questions and received the following answers: Q Thank you, Ms. D. I appreciate you coming back this afternoon and I apologize that you had to wait over the lunch hour for me to cross-examine you. What I would like to ask you about is you gave evidence earlier today about talking to D.W. in the bathroom and you said, "She asked me if it happened to me," words to that effect, "And I said yes." Is that the extent of the conversation that you had with D.W. in the bathroom? A Yeah. Q Yeah? Is that -- is that the extent of what you can recall? A Yeah.

Q Going back to 2015, the day when your mom asked you what happened, would it be fair to say that she had to ask you a few times for you -- a few times to you to tell her before -- let me try that again. Would it be fair to say that she had to ask you a few times before you would talk to her about it? A Yeah. Q And that it took you a while before you did speak of it? A Mm-hmm. Q I understand when you say mm-hmm, but just for the record I need you to say yes or no, or to articulate your answer. Is that okay? A Yeah.

Q Would it be fair to say that you were angry when your mom asked you about the allegation involving V.O.S.? A No, I was embarrassed. Q It's correct that Mr. S. never talked to you or spoke to you during the incident that you -- you alleged? A No. No. Q No, that he didn't speak to you? A No. CNSL A. TURTON: I just want to make sure it's clear that the witness is -- THE COURT: Maybe rephrase your question. You have the luxury of being able to give her leading questions if you want to go that route, and you might have to break it down really simple. CNSL A. TURTON: Q Did Mr. -- did Mr.

S. speak to you during the incidents that you have alleged? A No. Q And did Mr. S. speak to you afterwards about the incidents? A No. Q And you would agree that Mr. S. has never talked to you about it at all? A No. Q Do you agree or do you not agree with that? A He's never talked to me about it. Q Has Mr. S. ever threatened you about disclosing the information? A No. Q Has Mr. S. ever told you not to tell anybody? A No. Q Would it be fair to say that Mr. S. has never said to you if you tell then bad things will happen? A No. CNSL A. TURTON: I may -- may not have asked that question clearly, Your Honour.

Q But the intent of my question, Ms. D., is that Mr. S. has never said if you tell somebody then something bad will happen? A Yeah. THE COURT: I think her evidence was that since the incidents she has never spoken to Mr. S. CNSL A. TURTON: Thank you, Your Honour. Q Since the incident that you have des -- A I need a break. THE COURT: All right. We're going to stand down for a moment. … CNSL A. TURTON: Q Ms. D., I know that you have said that Mr. -- you haven't spoken to Mr. S. or there has been no discussion of any kind afterwards. I just want to be clear, though, that – my question is Mr.

S. has not done anything since the offence to cause you to worry that if you disclose the allegation that there would be negative consequences? A [Indiscernible/voice low]. Q I'm sorry? A I don't know. Can you say it again, please? Q I can. That was a bit of a long question and I apologize. Since the allegations, since the incident in the tent, Mr. S. has not done anything to cause you to be afraid that if you disclosed the allegations that there would be negative consequences? A No. Q And since the incident in the tent there has been no further -- further inappropriate touching by Mr. S., correct? A No.

Q Just to be clear, has Mr. S. touched you inappropriately since the incident in the tent? A No. Q And although Mr. S. may be a part of your extended family, he is not somebody that you lived with, correct? A No. Q And he's not somebody that you see frequently? A No. Q I'm going to suggest to you that, except for the incidental contact in the courtroom this week, that you have not seen Mr. S. this year or last year, correct? A In like stores, yeah. Q Just incidental, though? A Yeah. Q He didn't approach you or talk to you? A No. Q And at the time that this happened you were eight years old? A Yeah.

Q And you were 11 when you gave your seven – 11 when you gave your statement to the police? A Yeah. Q So roughly three years had gone by between the time that it happened and the statement, you would agree? A Yeah. Q And would you agree that three years is a long time to remember things that happened?

A Yeah. Q I'm going to suggest to you that your recollection or your memory was affected by the passage of three years. Would you agree? A Not really. Q I'm going to suggest to you that when you gave your statement you could not say when the incident happened? A Yeah. Q Yes, you agree with that. And for example, you couldn't say that the -- you couldn't say whether it was the summer or the fall,correct? A Mm-hmm, yeah. Q And you did not know how far in between the two incidents that occurred, correct? A Yeah. Q Is it fair to say that you can't recall the time between the two incidents, is that correct? A Yeah.

Q Do you actually remember talking to the police on the 9th of August 2015, or do you just remember the video? A I remember talking to them. Q You remember talking to them. Analysis [29] The prosecution and defence counsel have provided the court with nine cases in total. I have read and considered all nine cases. [30] The prosecution provided the court with: 1. R. v. J.M., supra 2. R. v. D.M.D., 2019 BCSC 1027 3. R. v. M.B., 2018 BCPC 141 4. R. v. Aksidan, 2006 BCCA 258 5. R. v. F.(C.C.), (SCC), [1997] 3 SCR 1183 [31] Defence counsel provided the court with: 1. R. v. Williams, 2020 BCSC 1983 2. R. v.

J.M., supra 3. R. v. T.R.J., 2014 BCSC 1611 4. R. v. Lucas, 2001 BCCA 361 5. R. v. L.(D.O.), (SCC), [1993] 4 SCR 419 [32] In addition to the nine cases provided to the Court by counsel, I have read and considered the following cases: 1. R. v. K.D.M., 2021 MBQB 2 2. R. v. P.S., 2019 ONCA 637 3. R. v. C.C., 2019 ONSC 3232 4. R. v. K.S.T., supra 5. R. v. M.B., 2018 BCPC 141 6. R. v. S.(J.), 2017 ONSC 6363 7. R. v. M.S.J., 2016 NWTCA 2 8. R. v. S.(P), (ONCA), 131 OAC 282 Issue 1: Was the video recording made within a reasonable time after the alleged offence(s)?

[33] Many of the cases referred to by counsel and reviewed by the Court canvass authorities from throughout Canada as to the amountof time that can pass between the date of the alleged offence and the making of the video recording for purposes of s. 715.1.

What isreadily apparent from the authorities is that each case turns on its own facts. [34] At paragraphs 70 to 84 in T.R.J., Justice Fitch, as he then was, set out general principles on the question of whether a videorecording has been made within a reasonable time after an alleged offence: [70] The following general principles are among those than can be distilled from the jurisprudence on the question of whether a videorecording has been made within a reasonable time after an alleged offence. [71] First, the period of time which must be "reasonable" is the period between the commission of the alleged offence and when thewitness provided the video recording concerning that offence.

The period does not, for the purposes of s. 715.1, run from the date ofdisclosure: R. v. Lucas, 2001 BCCA 361. [72] Second, where, as in this case, the alleged offence involves repeated acts of sexual abuse over a period of time, it would seem thatthe operative starting date of the period which must be reasonable is the probable date of the last incident of abuse: R. v. Archer (2004), (ON CA), 202 C.C.C. (3d) 60 (Ont.

C.A.) at paras. 73–74. [73] Third, whether the time period between the alleged offence and the making of the video recording is "reasonable" is a case-specificinquiry which must take account of all the circumstances: R. v. L.O.D. at paras. 73–77. [74] Fourth, in conducting the analysis, courts must be mindful of the fact that children, for a number of well-documented reasons, oftendelay disclosure of sexual abuse, and for substantial periods: R. v. L.O.D. at para. 75; R. v. W.(R.), (SCC), [1992] 2S.C.R. 122 at 136. [75] In R. v. S.(P.) (2000), (ON CA), 144 C.C.C. (3d) 120 (Ont.

C.A.) at 137, Moldaver J.A. (as he then was)expressed the view that: In considering whether a videotape has been made within a reasonable time, the court must balance a number of factors, the mostimportant being the reasons for the delay and the impact of delay on the child's ability to accurately recall the events in issue. [76] The following non-exhaustive list of additional considerations may be relevant to the analysis: the age of the witness; the nature ofthe allegations; the nature of the relationship between the witness and the accused; the potential impact the delay may have had on theability of the witness to accurately recall the events in question; and, the existence of any circumstances in the period between the allegedoffence and the videotaping that might impact on the reliability of the videotaped statement. [77] The considerations I have enumerated do not operate in isolation.

The time that has elapsed between an offence and the making of avideotaped statement is always an important consideration, but the totality of the circumstances must be considered, and in a cumulativeway. [78] It is generally recognized that children's memories fade faster than those of adults and that, where a complainant is very young atthe time of an alleged offence, concerns will arise about her ability to accurately recall the incidents at the time the video-recordedstatement is made.

That is why the legislation obliges the Crown to establish on a balance of probabilities that the video recordings weremade within a reasonable time after the alleged offence. [79] Further, the younger the child, the more acute the concern will become as the passage of time between the alleged offence and themaking of the videotaped statement increases. This is an important factor, but not one that will invariably govern the analysis, regardlessof the other circumstances.

For example, the nature of the allegation, including whether it was a repeated event, may be such that it left alasting impression even on a very young child – an impression which appears to enable her to accurately recall and relate what allegedlyoccurred a considerable period of time later. [80] The point is this: whether a video recording has been made within a reasonable time after the alleged offence is not an exercise inmathematics.

It is an exercise of judicial discretion which takes its shape from the governing principles and the unique circumstances ofa given case. [81] In some cases, delays of two to three years have been found to be reasonable: S.(P.) [two years found to be reasonable]; R. v. Quash,2013 BCSC 2498 at paras. 36–59 [22 months found to be reasonable]; R. v. G.(S.), (ON SC), [2007] O.J. No. 2203(S.C.J.) [three years found to be reasonable]; R. v. J.J., 2008 ONCA 133 [three years found to be reasonable]. [82] It should be noted, however, that substantially shorter periods have been found to be unreasonable: R. v.

Gallie, [2002] O.J.No. 3860 (S.C.J.) [one year found to be unreasonable]; R. v. Rohrich, [2009] O.J. No. 4050 (S.C.J.) [14 months found to beunreasonable]. [83] These cases are not inconsistent with one another. They simply represent the case-specific application of a framework of interactingprinciples, some of which will be entitled to more weight in a particular case than in others. [84] Generally speaking, delays longer than three and a half years have often been found to be unreasonable: Lucas [45 months found tobe unreasonable]; R. v.

W.(G.), 2014 ONSC 507 [three and a half years found to be unreasonable]; R. v. B.(A.G.), 2011 ABPC 260 [fouryears found to be unreasonable]. [35] In R. v. K.D.M., Justice McCawley set out at paragraph 17 a non-exhaustive list of factors that she felt were important to beconsidered: [17] While not exhaustive, the court will want to consider such factors as the age of the child, the child’s relationship to the accused, the

length and frequency of the alleged offence(s), the seriousness of the offence(s), any developmental stages the child may have gone through since the last alleged offence(s), the child’s emotional makeup and any evidence of intervening events that might affect the reliability of the evidence. [ 36 ] To the list of general principles, I believe that the time has come to add whether the victim is an Indigenous person. If yes, then building upon Justice Dunphy’s analysis at paragraph 23 in R. v.

S.(J) , the court should consider: i. the long history of trauma suffered by Indigenous girls in Canada, ii. society’s interest in correcting the disproportionate victimization of Indigenous women and girls in Canada, iii. how the victim’s unique life experiences as an Indigenous person have impacted on their participation in the process, and iv. the strong societal interest of accommodating the victim’s need to provide their evidence in a less traumatic fashion. Application to the Present Case [ 37 ] The reason K.D. gave for the delay in her reporting the alleged offences is that she was embarrassed.

Much judicial ink has been spilt concerning the reasons children either do not report sex crimes or delay the reporting of sex crimes. I will not repeat what has been written in the case law here. Suffice to say, the reasons are numerous and still not completely understood. What was clear to me based on the evidence I heard during the voir dire is that K.D. was a timid, soft-spoken girl at the age of 11 and she remains a timid, soft-spoken young woman as of May 6, 2021. [ 38 ] I have reviewed the transcript (exhibit

A) and I have watched the August 9, 2015, video recording. The questioning of K.D. by Constable Sedgman was professional and appropriate throughout. I have reviewed exhibits B, C and D, all of which K.D. recognized and identified during examination-in-chief.

K.D. has adopted the contents of the August 9, 2015, video recording, has testified that she was telling the truth, and confirmed on cross-examination that she has an independent memory of meeting with Constable Sedgman at the RCMP Detachment on August 9, 2015. [ 39 ] In the context of the present case, I have reminded myself of the words of Justice Riley in R. v. D.M.D . at paragraphs 17 to 19 : [17] As noted, one of the objectives of s. 715.1 is to preserve an early account of the incident giving rise to the criminal charge against the accused.

To this end, s. 715.1 requires the video-recorded statement must have been made within a reasonable time of the alleged offence. The time in question runs from the time of the alleged offence to the time that the video recording is made. The determination of what is reasonable is not a mathematical calculation, but rather an exercise of judicial discretion based on the totality of the circumstances.

Relevant circumstances include the age of the child, the length of the time in issue, the reason for any delay between the date of the alleged offence and the taking of the video-recorded statement, the nature of the relationship between the child complainant and the accused, any significant intervening events that might impact upon the statement, and the potential impact of the passage of time may have had on the complainant's ability to recollect the events: T.R.J. at paras. 71, 73, 76, 80 . [18] The focus of the analysis should be on the extent to which the passage of time can be said to have impacted on the complainant's ability to recollect and describe the events.

The factors I have just listed should be considered through that lens. In considering the reasons for any delay, the court must be mindful of the fact that children sometimes delay disclosure of sexual abuse allegations for a number of reasons: T.R.J. at para. 74 . [19] It is also important to bear in mind that children's memories fade faster than the memories of adults. To paraphrase from Justice Fitch as he then was in T.R.J. at para. 79 , the younger the child, the more acute the concern about the passage of time.

However, the passage of time cannot be viewed in isolation, nor should it overwhelm the analysis. [ 40 ] Accordingly, I have taken the following factors into consideration in my determination of whether the August 9, 2015, video recording was made within a reasonable time after the alleged offences : 1. V.O.S. has the right to a fair trial; 2. The question of what is a reasonable time is case specific; 3. Measurement of the reasonable time starts from the date of the alleged offences; 4. Children’s recollection diminishes with time; 5. K.D. was eight years of age at the time of the alleged offences; 6.

K.D. had recently turned 11 when Constable Sedgman interviewed K.D. and made the August 9, 2015, video recording; 7. K.D. is a young First Nations person; 8. A chance-meeting between L.T. and E.W. in a Walmart store in late July 2015, or early August 2015, was the impetus that led to K.D. being interviewed and video recorded by Constable Sedgman on August 9, 2015; 9. Approximately an hour after L.T. heard from her cousin E.W. that V.O.S. might have victimized K.D., L.T. first questioned K.D. about the alleged offences; 10.

The August 9, 2015, video recording was made within ten days of L.T. finding out from her cousin E.W. about the alleged offences;

11. The trauma of the alleged offences on a girl of eight; 12. V.O.S. is the grandfather of K.D.’s cousin; 13. V.O.S. is a person that K.D. had sporadic interaction with during the summer of 2012; 14. The passage of three years for a girl of eight until she turned 11 is a significant amount of time. Nevertheless, K.D. was not of such a young age that a three-year delay in obtaining her evidence raises concerns about her ability to recall accurately the alleged offences.

Furthermore, there was nothing in the cross-examination of K.D. during the voir dire that indicates K.D.’s memory decayed significantly between the time of the alleged offences and August 9, 2015; 15. During the voir dire , K.D. presented as a quiet-spoken, timid, fearful young woman, who found it difficult to speak of the alleged offences. It appeared to me that the experience of testifying in Court on May 6, 2021, was traumatizing for K.D.; 16.

Based on the contents of the August 9, 2015, video recording and my assessment of K.D.’s demeanour in court on May 6, 2021, it is reasonable to conclude that the reason K.D. did not report the alleged offences before being questioned by her mother in the summer of 2015, is her timidity and an inability to communicate because of embarrassment about her victimization in the offences alleged; 17. Given the passage of time since August 9, 2015, the video recording is unquestionably a better-preserved record of the recollections of K.D. than the evidence K.D. will be able to give once the trial proper resumes; 18.

There was no evidence presented during the course of the voir dire of a motive for K.D. to falsely accuse V.O.S; 19. The description given by K.D. of the alleged offences in the August 9, 2015, video recording is sufficient in detail to support the charges as set out in [omitted for publication] Court Information [omitted for publication], including what happened, where it happened and when it happened; 20. As this is a trial by Provincial Court judge, as part of my inherent duty to control the proceedings, I am able to: a. Edit out of the transcript (exhibit

A) any inadmissible evidence; and b. Disabuse my mind of any inadmissible evidence contained in the August 9, 2015, video recording. Answer to Issue 1: [ 41 ] In considering the law and all the factors set out above in the present case, I find that K.D.’s August 9, 2015, video-recorded description of the alleged offences and the events surrounding the alleged offences is consistent with K.D. having had an independent recollection of the alleged offences. Accordingly, I find that the August 9, 2015, video recording was created within a reasonable time after the alleged offences as required by s. 715.1 .

Issue 2: Will the admission of the video recording in evidence at trial interfere with the proper administration of justice? [ 42 ] I have not been told the reason(

s) why it took until May 5, 2021, to begin V.O.S.’s trial, a period of five years and nine months since the making of the video recording and just shy of nine years since the dates of the alleged offences. Nothing in the examination-in- chief or cross-examination of the three witnesses shed light on the reason(s). Nevertheless, it is clear to me that K.D. is not the party responsible for the passage of time from August 9, 2015 to May 5, 2021. [ 43 ] Constable Sedgman in her evidence confirmed that she had received specialized training in the interviewing of children.

Constable Sedgman was not a participant in the wider investigation of V.O.S. She interviewed K.D. alone in a comfortable, if sterile, room. [ 44 ] Constable Sedgman confirmed with K.D. that K.D. understood the difference between telling the truth and telling a lie. She impressed upon K.D. the fact that they were in a safe room and that K.D. could tell anything to Constable Sedgman, as long as it was the truth.

K.D.’s answers confirm that K.D. had a good grasp of what telling the truth meant and what a lie was. [ 45 ] As I set out earlier, the manner of questioning by Constable Sedgman in the August 9, 2015, video recording was professional and at no point in interviewing K.D. did Constable Sedgman ask inappropriate questions or suggest answers to K.D. The questions posed were open-ended and age-appropriate for K.D.

The video recording reveals a timid, embarrassed and often hesitant 11-year-old K.D., yet K.D. was able to interact appropriately with Constable Sedgman and provide a coherent narrative, delivered in age-appropriate language. [ 46 ] The video recording picture quality and sound were good.

Although the elevated camera angle and the distance of the camera from K.D. were less than optimal, K.D.’s words, body language, manner of gesturing and interaction with Constable Sedgman were easily discernible. [ 47 ] Counsel raised in argument the inadmissibly of the words spoken by D.W. to K.D. in the primary school washroom, as related by K.D. in the video recording. It is unclear to me, on the evidence, at what point in time the conversation between K.D. and her cousin D.W. took place, other than perhaps when K.D. and D.W. were in grade 4.

As such, the likelihood is that the conversation between K.D. and D.W. occurred in the fall of 2013, nearly two years before August 9, 2015. [ 48 ] Nothing arose out of the examination or cross-examination of K.D. during the voir dire such as to suggest that the words spoken by D.W. to K.D. influenced the contents of K.D.’s statement to and interaction with Constable Sedgman on August 9, 2015. There is no evidence of collusion between K.D. and D.W.

In any event, I am able to disabuse my mind of the words allegedly spoken by D.W. to K.D. as related by K.D. in the August 9, 2015, video recording. [ 49 ] The five-year anniversary of the final report of the Truth and Reconciliation Commission of Canada (“TRC”) recently passed.

The TRC recognized the disproportionate victimization of Indigenous women and girls. From the TRC and the associated public inquiries, we learned and confirmed that Indigenous women and girls face " endemic violence " and that in Canada Indigenous people are victims of crime at higher levels than non-Indigenous people are.

Section 715.1 provides a means through video recording of allowing the voices of Indigenous girls to be heard by the court. As such, we should pay close attention to the utilization of video recording as a means to make an early record of the voices of Indigenous girls and, in difficult cases, consider the special needs of Indigenous girls in getting their voices heard in the Canadian justice system. [ 50 ] Finally, I, like Judge Harris at paragraph 37 in R. v.

M.B. , am of the opinion that admitting the video recording “…into evidence would serve the laudable goal of minimizing the in-court trauma that the complainant would experience in the re-telling of her allegations.” Answer to Issue 2: [ 51 ] I agree with and adopt the words of Justice Dunphy written at paragraphs 24 to 26 in R. v.

S.(J.) , a case involving the introduction of a video recording pursuant to s. 715.1 that was made at least 6.5 years after the alleged offence: [24] The potential harm of admitting a statement as old as this one is substantially mitigated by a qualitative analysis of the statement itself.

The story emerged quite fully in the words of the complainant and did so with a depth of detail sufficient to provide at least an initial level of confidence that time had not decayed the memory unduly at the time the statement was taken. [25] It must be underlined that at this early stage I have not reached and am not called upon to reach any conclusions, even tentatively, regarding weight or credibility. These will be matters to be delved into as the evidence at trial unfolds. The witness has yet to adopt her statement of course.

She will be subjected to cross-examination and the matter of the prior inconsistent statement can be explored further. [26] The tools available to the accused to question the credibility of the complainant and the weight to be attached to her statement at trial remain quite sufficient to ensure fairness notwithstanding the delay in recording the statement after the alleged offence. [ 52 ] For the reasons set out above, it is my ruling that the admission at trial of the August 9, 2015, video recording, filed as exhibit E on the voir dire , will not interfere with the proper administration of justice.

As such, exhibit E is admissible at trial. I will disabuse my mind at trial of that portion of the video recording that refers to a conversation between K.D. and her cousin, D.W., in a school washroom prior to the making of the August 9, 2015, video recording. Issue 3: Are the transcript of the August 9, 2015, interview (exhibit

A) and the aids utilized by Constable Sedgman when taking K.D.’s statement on August 9, 2015, (exhibits B, C and

D) admissible at trial? [ 53 ] During the course of the voir dire , I asked Ms. Meldrum if she was seeking to have exhibits A, B, C and D ruled admissible at trial. She stated that she was. In deciding the issue of whether exhibits A, B, C and D are admissible at trial, I am mindful of Justice Riley’s observations and findings at paragraphs 66 to 70 in R. v. D.M.D . : [66] Corporal Remple made use of a number of aids when taking EJM's statement on 12 January 2017.

In particular, Corporal Remple made use of: (1) a list of rules; (2) a diagram of a gingerbread doll which was labelled using the names of body parts given by EJM in the course of the statement; and (3) handwritten notes made by both EJM and Corporal Remple in the course of the statement. [67]

Section 715.1 allows for the admission of "a video recording" which, based on common sense, would include both images or video and sound or audio. However, on its face, s. 715.1 does not allow for the admission of other materials that may be referred to or relied upon in the course of a video-recorded interview. At first blush, one might be tempted to say that the admissibility of such materials is by necessary implication governed by s. 715.1 .

On this reasoning, where a video-recorded statement is held to be admissible under 715.1, any materials referred to or relied upon in the course of the statement would be admissible as part and parcel of the video recording. That was the approach taken in R. v. Kalmakoff , 2017 ABCA 330 at para. 2 . [68] However, in my view, such a categorical approach risks admission of material that may be rife with hearsay.

For example, if a witness is asked to write out a statement during a video-recorded interview, the witness may write out a lengthy written account that may have hearsay dangers, most notably an absence of opportunity to study the demeanour of the witness in the same way as if the witness had made the statement orally.

Or where a witness is referred to a document, the document itself may contain hearsay assertions that the witness is not asked to comment upon or is not in a position to adopt as true. [69] As an alternative, a more cautious albeit more technical approach would be to conduct a hearsay analysis of each item or aid referred to in the video-recorded statement to determine who created it, the purpose for which it was being tendered and, if it is hearsay, whether it is admissible under any appropriate hearsay exception. [70] In the case at bar: 1) The interview rules are a typewritten set of rules prepared by a third party.

The rules were not read verbatim to EJM, so the written document contains text that was never put to the witness. To the extent that the rules were read to EJM during the statement and acknowledged by EJM, the audio records exactly what was said to EJM and what she said in response. As a result, the rules document is hearsay and admissible only as an aid to assist in following what was actually said in the video, not for the truth of its contents. 2) The diagram of the gingerbread doll is a visual aid. Its admission is necessary to understand the portions of the video where EJM points to it.

The labels on the diagram were filled in by Corporal Remple while EJM watched, based on statements made on the video by EJM. The labels are therefore not hearsay. Rather, they are a record of what the witness said aloud, written in the presence of the witness, as the witness watched it being written. 3) The notes on the back of the diagram are written by EJM. They were read aloud by Corporal Remple, who then asked follow-up

questions. To the extent that EJM's oral answers involve an acknowledgment of the words spoken, EJM has adopted the contents of the handwriting and it is not hearsay, or it is subject to an exception that makes it admissible. 4) With respect to the notes on the separate piece of paper, some were written by Corporal Remple and based on statements made by EJM, and some were written by EJM herself. With respect to the notes written by Corporal Remple, these are notes of what EJM purportedly said during the interview. They are redundant since EJM spoke the words in the video.

What is more, the handwriting itself was never reviewed and confirmed by EJM, so it is inadmissible. I note that in the course of her testimony on this voir dire , EJM was asked about this handwriting and was unable to identify it. With respect to the notes written by EJM, again these notes were subsequently read aloud by Corporal Remple. To the extent that EJM's subsequent oral statements involve an acknowledgment of the words written on the page, EJM has adopted the contents and they are not hearsay. Exhibit A [ 54 ] Exhibit A is not a transcription of the August 9, 2015, video recording.

Rather, exhibit A is an edited transcription of the recording made by Constable Sedgman on a small audio-only recorder that she utilized as a backup to the audio on the video recording. [ 55 ] Constable Sedgman edited exhibit A in her own handwriting. However, the prosecution did not lead evidence on the voir dire as to who initially transcribed the audio on the small audio-only recorder.

The result being, we do not know who transcribed the audio recording from Constable Sedgman’s small audio-only recorder. [ 56 ] Counsel did not ask K.D. to adopt exhibit A as a true written record of the words spoken by herself and Constable Sedgman during the August 9, 2015, video recording. Nor did K.D. adopt exhibit A as a true written record of the words spoken by herself and Constable Sedgman during the August 9, 2015, video recording. [ 57 ] Exhibit A is redundant, as the video recording has audio (which was adopted by K.D.).

I, as the trier of fact, as well as the parties and witnesses, can listen to the audio recorded on the video recording. Exhibit A is not required by necessity and there was no rule of evidence brought to my attention by counsel that would allow for its admissibility at trial. [ 58 ] At best, exhibit A is a document that Constable Sedgman has opined is a true or nearly true written record of the words spoken by herself and K.D. during and shortly before the video recording on August 9, 2015.

Exhibits B, C and D [ 59 ] Exhibits B, C and D are visual aids utilized by Constable Sedgman during the taking of K.D.’s August 9, 2015, statement. Their admission is necessary to understand the portions of the video where: (

i) K.D. points to the diagrams, (ii) K.D. explains her understanding of body parts, and (iii) K.D. explains where people were located inside the tent. [ 60 ] While exhibit B (diagram of little girl) and exhibit C (diagram of little boy) originally had pre-printed cartoonish pictures of a little girl and a little boy respectively, the words on each diagram were filled in by Constable Sedgman while K.D. watched, based upon the statements and pointing made in the video recording by K.D.. The words and diagrams are therefore not hearsay.

Rather, they are a record of what K.D. said aloud or pointed to, written in the presence of K.D. by Constable Sedgman, as K.D. watched the words being written. To the extent that K.D.’s answers involve an acknowledgment of the words spoken and picture drawn, K.D. adopted the contents of the handwriting and it is not hearsay, or it is subject to an exception that makes it admissible. [ 61 ] Exhibit D originated as a blank piece of paper.

Constable Sedgman, in the presence of K.D. and based upon the statements and pointing of K.D. made in the video recording, drew a sketch of the tent and where people were positioned inside the tent. To the extent that K.D.’s answers involve an acknowledgment of the words spoken and picture drawn, K.D. adopted the contents of the handwriting and it is not hearsay, or it is subject to an exception that makes it admissible. Answer to Issue 3: [ 62 ] For the reasons set out above, I rule that exhibit A is not admissible at trial.

I further rule that exhibits B, C and D are admissible at trial. _____________________________ The Honourable Judge D. Patterson Provincial Court of British Columbia