2016 MBPC 55, 2016 MBPC 55

Cite# 2016 MBPC 55 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Minh Nguyen, ) ) for the Crown - and – ) ) ) Kenneth Wiebe ) Saheel Zaman, ) ) for the Accused ) Judgment delivered: ) October 28, 2016 Ruling on s. 715.1 Criminal Code Voir Dire Restriction on publication: By court order under s. 486.4(1) of the Criminal Code , any information that could identify the complainant/witness shall not be published in any document or broadcast or transmitted in any way. Martin, P.J. Introduction [ 1 ] Kenneth Wiebe (“Wiebe”) stands charged with one count of sexual assault contrary to s. 271 of the Criminal Code , and one count of sexual exploitation contrary to s. 153 (

a) of the Criminal Code . The charges stem from allegations made by T.S. about an incident alleged to have occurred on or about July 2, 2015 when T.S. was 15 years old. [ 2 ] In the course of investigating the allegations, the RCMP took two videotaped statements from T.S. The first statement was at the Falcon Beach RCMP Detachment on July 6, 2015 (‘the July 6 statement’), the second at the Lundar RCMP Detachment on July 15, 2015 (‘the July 15 statement’). [ 3 ] The July 6 statement is not before this Court.

The Court was advised that the officer who took the statement is not available, apparently as a result of medical issues, though this is not abundantly clear. The Crown has offered to ‘make the statement available’ to the Court. Defence counsel is opposed, given the unavailability of the officer, and consequently, the inability to cross examine on the circumstances surrounding the taking of the July 6 statement. [ 4 ] The only evidence the Court has about the July 6 statement is that T.S. attended to the Falcon Beach Detachment indicating she wished to provide a statement about something that had happened to her.

She was accompanied by her 25 year old boyfriend who sat in the interview room. At times, the officer needed to caution the boyfriend to remain quiet or he would be asked to leave. [ 5 ] Apparently, as a result of some concerns this officer had with respect to the credibility of T.S.’s allegations, the Lundar Detachment was called to see if they could take a second statement from T.S. [ 6 ] As already noted, that second statement took place on July 15, 2015.

It is this second statement that the Crown applies to tender as evidence in the cause, in accordance with s. 715.1 of the Criminal Code . [ 7 ] Defence counsel is opposed to the Crown’s application. While he concedes that T.S. was under 18 at the time of the statement and that the statement was given within a reasonable time, he submits that the application should fail on two grounds: first, that T.S. did not adopt her July 15 statement; and second, that the admission of the July 15 statement would interfere with the proper administration of justice.

Crown counsel’s reply is that the test for admission of the videotaped statement pursuant to s. 715.1 is not stringent and any concerns about contradictions and circumstances related to the taking of the statement should go to weight. [ 8 ] For the reasons that follow, although this Court finds that the complainant did adopt her July 15 statement, that statement should be excluded from evidence as its admission would interfere with the proper administration of justice.

The Law [9] S. 715.1 of the Criminal Code provides that: 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. [10] S. 715.1 is a statutory exception to the hearsay rule.

It permits an out-of-court statement to be admitted for the truth of itscontents if the enumerated pre-conditions are met.

The purpose behind this statutory exception is two-fold: first and foremost, it is meantto enhance the truth seeking function of the court by preserving evidence which is closer in time to the allegations; second, its subsidiaryaim is to prevent or reduce materially the likelihood of inflicting further injury as a result of participating in the criminal justice systemby reducing the number of times a child complainant needs to repeat the allegations. (See: R. v F.(C.), (SCC), [1997]3S.C.R. 1183; R. v.

W.E.B., 2009 MBQB 302) “Adopts the contents of the video recording” [11] The Supreme Court of Canada dealt with the s. 715.1 requirement that the witness adopts the contents of the video recording ortheir statement in F.(C.), holding that a child witness adopts his or her statement when (s)he recalls giving the statement and testifies that(s)he was attempting to be honest and truthful. The Supreme Court of Canada acknowledged that there are often times when a childwitness cannot remember the events, or times when the child witness provides oral evidence which contradicts the videotapedstatement.

These are matters which usually go to weight rather than admissibility. [12] That was the finding in R. v. B.G.B., [2005] O.J. No. 5402 (Ont. Sup. Ct.). In that case, during cross-examination, when askedif he was making things up in the videotape, a 5 year old complainant replied: "Yes, or no".

The appeal judge noted that the test foradoption is not stringent and despite some contradictions in the young complainant’s testimony, there was evidence upon which the trialjudge could conclude that the child adopted his statement. [13] There are instances, however, where the complainant’s evidence on the voir dire is such that it cannot be said that thecomplainant actually adopted the statement. This was the case in R. v. Smith, [2001] A.J. No 54 (ABCA).

In that case, a 3 year oldcomplainant contradicted herself on cross-examination and re-examination about telling the truth and the actual events alleged in thevideotape, going so far as to testify that ‘it was a lie’. The Alberta Court of Appeal found that the complainant’s testimony that ‘what shesaid had happened on the tape, in fact, did not happen’ meant that she did not adopt the contents of the videotape.

The Alberta Court ofAppeal considered the caution in F.(C.), that contradictions are matters that go to weight (F.(C.) at paragraph 48), but held that issues ofweight do not arise until the conditions precedent in s. 715.1 are met: 16 The question of weight to be attached to the videotaped statement of the complainant does not arise until the videotape isadmitted into evidence. The Criminal Code conditions precedent must first be met.

One requirement is that the complainant, whiletestifying, must adopt the contents of the videotape. [14] In the course of the voir dire in the matter before this Court, the July 15 statement was played. T.S. identified herself and theRCMP officer who took her statement at the Lundar Detachment. She testified to having remembered providing the statement and tellingthe police the truth that day. T.S., now almost 17, testified in a confident manner.

There was no indication that she had any difficultyrecalling any of the events. [15] On cross-examination, T.S. conceded that there were aspects of the July 15 statement that were not true, namely that she wasnot forthright about the exact nature of her relationship with a man 10 years her senior, the same man who attended with her to the July 6statement. She testified, however, that although the two were ‘seeing’ each other at the time of the allegations, their status was not yetofficial. In the end, she acknowledged that her description of her relationship as being ‘friends’ was misleading.

T.S. also conceded thatshe had lied to her family about this relationship and other matters both before and after the July 15 statement. [16] Defence counsel submits that given this evidence about deception and lies, the Court should be concerned about whether T.S. isbeing truthful in her July 15 statement, and whether she is, in fact, adopting its contents. Crown counsel submits that these are simplyissues of weight, not admissibility. [17] While it is clear that T.S. admitted to a degree of deception during the July 15 statement, this deception was in regards to aperipheral matter which goes to credibility.

As for her acknowledgement that she has lied to her family in the past, this is also an issuethat goes to her credibility generally, not the admissibility of the statement, given that there is no evidence that she lied about theallegations. As stated in F.(C.), a child witness adopts her statement when she recalls giving the statement and testifies that she wasattempting to be honest and truthful. This is what happened in this case.

As a result, I find that T.S. did ‘adopt’ her statement within themeaning of s. 715.1. “Interference with the Proper Administration of Justice” [18] As noted previously, s. 715.1 allows for a residual power to exclude a videotaped statement even when the conditions precedentare met. The test is whether 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”. [19] At paragraphs 51 and following of F.(C.), Cory J., writing for the Supreme Court of Canada, provides some guidance on how acourt should exercise this residual discretion to exclude a videotaped statement of a young person under the age of 18: 51 ... the trial judge may exercise his or her discretion to exclude the videotaped statement if prejudice from its admission wouldoutweigh its probative value. The discretion to exclude the videotape is limited to those cases where its admission would operate unfairlyto the accused.

Those cases will be relatively rare. (See Toten, at p. 32; R. v. Potvin, (SCC), [1989] 1 S.C.R. 525, at p.548.) L'Heureux-Dubé J. in L. (D.O.), at p. 463, suggests that there are a number of factors which should be taken into account inexercising this 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. 52 A consideration of these factors would help to ensure that the contents of the statement generally conform to the rules of evidenceand that the statement has probative value. The discretionary power to exclude evidence should not be used to determine issues ofweight.

In cases where there is conflicting evidence and opinion as to how useful the videotaped statement may be in providing an honestand complete account of the complainant's story, the statement should be admitted unless the trial judge is satisfied that it could interferewith the truth-finding process. (See Toten, at pp. 32-33.) 55 If it can reasonably be done, a sensitive judicial system should, with the aim of s. 715.1 in mind, interpret the

section in a mannerthat will attempt to avoid further injury to children resulting from their participation in the criminal trial process. That must of course bedone within the balanced bounds of always ensuring that the accused enjoys the fundamental right to a fair trial. The

definitions andprocedures set out in these reasons strive to achieve these aims. [20] In F.(C.), the court admitted into evidence a videotaped statement where the police had interviewed the complainant beforeconducting a videotaped statement. The court stated that any potential tainting of the complainant’s statement would go to weight, notadmissibility. The court went on to explain at paragraph 53 that: ...The fact that a pre-video interview was conducted, and any effect it may have had on the subsequently videotaped statement, will go tothe weight which should be accorded the evidence, not its admissibility.

It would be preferable if the police officers conducting thevideotaped interview would pose simple, open-ended questions to the child. It must be recognized that in some situations it will benecessary and appropriate to ask leading questions. Recently, an Ontario Court of Appeal decision was upheld in which the possibility ofwitness tainting was ruled a question of weight not admissibility: see R. v. Buric, (SCC), [1997] 1 S.C.R. 535. [21] In R. v.

Toten (1993), (ON CA), 14 O.R. (3d) 225 (overruled in F.(C.) only in regards to the test used for‘adoption’ of the statement), the Ontario Court of Appeal provides some assistance as to what is meant by prejudice to the accused: In this context, prejudice refers, among other things, to any unfairness to the accused occasioned by the admission of the evidence. Forexample, the evidence might provoke such an emotional response that it imperils the trier of fact’s ability to reach a verdict on anobjective and dispassionate review of the evidence.

If so, the evidence must be regarded as prejudicial in the present sense of the word.Similarly, there may be a danger that the trier of fact could, despite directions to the contrary, use the evidence to infer guilt throughsome legally forbidden line of reasoning. This danger must be placed on the prejudice side of the scale when balancing prejudice againstprobative value. Prejudice to the accused would also exist where the accused does not have an adequate opportunity to challenge theevidence adduced by the Crown.

For instance, the Crown might produce a videotaped statement and the complainant might purport toadopt it, but it may prove totally impossible to conduct any kind of meaningful cross-examination of the complainant. In such a case,there would be awear [sic] prejudice to the accused were the statement to be admitted. [Endnote 50].... ...Section 715.1 is intended to enhance the truth-finding function of the trial. Admission of evidence which does not serve that purpose,or runs contrary to it, does not further the purpose of the section.

A discretion to exclude videotaped statements which cannot enhancethe quality of the factual inquiry limits the evidentiary access provided by the

section to situations where the purpose of the

section isserved. For example, if, on a voir dire it is shown that the statement was carefully scripted and rehearsed, or thatawhe [sic] questioning of thecomplainant was so suggestive as to render the videotape of little or no value in eliciting the complainant’s version of events, then, in my

view, the trial judge could exclude the videotaped statement. There may also be cases where the technical quality of the videotape is so poor that the trier of fact would be left to speculate about exactly what the complainant said on the videotape.

In that situation, a trial judge may well conclude that the admission of the tape would detract from, rather than enhance, the truth-finding process. [ 22 ] Defence counsel provided this Court with some cases where the trial judge excluded the videotaped statement on the grounds that its admission in evidence would interfere with the proper administration of justice. [ 23 ] In R. v. B.B ., 2010 ABPC 278 , an underage witness to an aggravated assault provided a videotaped interview. Subsequent to the interview, the witness provided a videotaped statement.

The Crown sought to enter both the interview and the statement into evidence in accordance with s. 715.1 . The judge denied the Crown’s application, citing great concerns with the police techniques used and their impact on the truth seeking function of the court. During the pre-statement interview, the police used leading questions which provided information about the offence to the witness in the hopes that the witness would implicate the assailants. The witness was praised as being of good character. The assailants were described in unsavoury terms.

The police also showed the witness pictures of the victim’s injuries and described the nature of them. They told the witness that they knew that he was present during the offence and saw what happened. After this interview, the police then recorded the witness’s statement. The judge remarked that there was a difference in that statement in relation to the interview with respect to the nature and types of questions posed by the police and as well in relation to the witness’s demeanour, who appeared to no longer be as reluctant a witness.

The judge noted that pressure by interviewers may go to weight but that given the multiplicity and nature of his concerns, it would be impossible to edit the statement in a manner that would leave a statement which would provide for proper context, such that the statement was not admitted into evidence. [ 24 ] In R. v. G.-M., 2011 ONSC 1516 , an adult complainant provided a videotaped statement in regards to historical sexual assault allegations. Prior to providing this statement, the adult complainant compiled a written document with the assistance of her mother.

At the outset of the videotaped statement, the complainant gave her evidence spontaneously in response to open-ended questions. Following this portion of her statement, however, the police officer began asking very leading questions and directing the complainant to portions of her written document, going so far as to read those portions out loud. The judge found that given the nature of the leading questions, it was impossible to determine how they may have impacted on the balance of the statement such that it would operate unfairly to the accused.

As a result, the judge excised that portion of the statement. [ 25 ] Defence counsel has raised several concerns related to the admission of the July 15 statement which can be summarized as follows: • The July 15 statement contains questions and evidence that are inadmissible; - there are leading questions; - there are questions that paint the accused in a negative light and call his character into question; - there is evidence of other incidents involving the accused; • Some of the questioning in the July 15 statement contains details about the incident that T.S. did not provide; • There is repetitive questioning which elicits different answers to the same questions asked previously; • Some of the answers are not responsive; • Some evidence was provided in the July 15 statement that was not provided during in the July 6 statement; • As the officer from the Falcon Beach Detachment, who took the July 6 statement, was not called by the Crown, the Court is deprived of part of the evidence.

The accused is also deprived of the opportunity to cross examine that officer about the pre and post interview conversations he might have had with the complainant; • T.S. acknowledged being deceptive and having lied in the past. [ 26 ] Given these concerns, defence counsel submits that the prejudicial effect of admitting the July 15 statement greatly outweighs its probative value and that, as a result, it should be excluded.

Crown counsel disagrees and submits that many of the issues raised by defence counsel are ‘red herrings’ that simply go to weight, such that the statement should be admitted. [ 27 ] In reviewing the law and the evidence, this Court has several concerns with admitting the July 15 statement in evidence based on the totality of the circumstances. [ 28 ] The main concern regards the absence of the July 6 statement given the presence of T.S.’s boyfriend and his acknowledged participation during that statement, as well as the credibility issues that gave the Falcon Beach officer concerns to the point he asked for a second statement to be taken.

Based on this set of circumstances, the lack of the July 6 statement, would, in the Court’s view, deprive this Court of the complainant’s entire statement. [ 29 ] No case law has been provided to this Court where two statements were taken about the same set of allegations, but only one was being sought to be introduced into evidence. The case law only deals with pre-interviews to statements.

That case law, as noted, indicates that pre-interviews go to weight unless they are of such a nature as to hinder the truth seeking function of the court or to be so prejudicial to the accused that their admission in evidence would result in an injustice. In B.B ., the court was able to view the pre- interview, note the changes in demeanour as well as in the nature and quality of questions posed to the witness.

In this case, the Court is deprived of that ability to see that earlier July 6 statement. [ 30 ] The evidentiary value of the July 15 statement is also problematic, mainly as a result of the officer’s investigative technique. It is clear in both the statement and the officer’s oral evidence, that she took for granted that an offence had occurred and simply needed to

get some more information from the complainant. At times she assists the complainant, suggesting, for example, a specific offence date when the complainant stated that she could not remember.

At others, she is very sympathetic, nodding her head, and making soothing and encouraging comments which were not lost on T.S., who testified that she did note that this officer was more comforting than the officer who took the July 6 statement; that officer was “trying to get the story completely.” [ 31 ] Many of the officer’s questions are also framed in such a way that they appear to colour and taint T.S.’s evidence, not only because of the choice of language, but also because of their repetitive and suggestive nature.

For example, early on in the interview, the officer asks T.S. if anyone was drinking the night of the allegations to which T.S. responds “yes, the accused.” The officer then probes more, asking “was he drinking a lot, like was he, acting-like he was under the influence at all?” and whether T.S. could smell it on him. T.S. responds about another incident, but not about the smell of liquor. Later on in the interview, the officer asks yet again if the accused smelled like alcohol. Once again, T.S. responds about something else. Then the officer asks a further time, ‘Did you notice anything about his breath?

Did he smell of anything?” This time T.S. responds “He smells a little like, like alcohol, yeah.” [ 32 ] The officer also asks questions with details about the offence that T.S. did not provide. For example, T.S. tells the officer that they were sitting around the fire and the accused started moving closer to her and then started putting his hands ‘down there’ and then slowly inserting his fingers.

No further information is provided yet the officer later asks “Okay, so he came over closer and then he put his hand on your chair ?” and then, “Like when he touched your chair, he said, you said he slid his hand down beside your chair .” T.S. responds “Yeah” but it is noteworthy that T.S. had not provided any of these additional details to this officer during the July 15 statement. [ 33 ] When looked at individually, it is true that many of these concerns could be considered to be matters of weight.

This Court’s concern is that when the July 15 statement is considered in conjunction with the backdrop to the taking of this statement, the prejudicial effect of its admission into evidence would outweigh any probative value it might have. The absence of the July 6 statement, as well as the evidence of differences in T.S.’s evidence between the two statements and the very vocal presence of her boyfriend provides a very concerning background to the July 15 statement that was initiated by that officer because of concerns he had with respect to T.S.’s credibility.

These are issues, which in this Court’s view, go beyond matters of weight. They are issues which go to the heart of the truth finding function of the trial. [ 34 ] This Court has considered whether a portion of the July 15 statement could be edited but given the concerns related to the backdrop against which that statement was taken, this Court is of the view that editing would not be appropriate. [ 35 ] As a result of the forgoing, the Crown’s 715.1 application to admit the July 15, 2015 videotaped statement into evidence is denied. The statement is excluded from evidence. “Original signed by” L.M. Martin, P.C.J