HIS MAJESTY THE KING - v. -, 2023 SKKB 76

REDACTED VERSION KING ’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 76 Date: 20 23 04 11 Docket: CRM-RG-00118-2022 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - A.I.Z. PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Counsel: Gennadiy S. Bogutskiy for Crown M. Danish Shah for accused REASONS FOR ORAL DECISION DATED JANUARY 5, 2023 KLATT J.

WRITTEN REASONS APRIL 11, 202 3 [ 1 ] The accused was charged that on or between July 1, 2017 and December 31, 2019, at or near Regina, Saskatchewan, he did: 1. for a sexual purpose, touch directly or indirectly, with a part of the body or with a sexual object, penis, a part of the body of A.A.- Z., a person under the age of 16 years, contrary to s. 151 of the Criminal Code , RSC 1985, c C-46 ; and 2. commit a sexual assault on A.A.-Z., contrary to s. 271 of the Criminal Code . [ 2 ] At the commencement of the trial, a voir dire was held to determine the admissibility into evidence of the video-taped statement given by the complainant to the police pursuant to s. 715.1 of the Criminal Code .

The accused objected to its admissibility arguing that without a determination as to the precise dates of the alleged assaults, it cannot be determined that the statement was made within a reasonable time after the alleged offence. [ 3 ] After hearing submissions from counsel, and reviewing some of the jurisprudence, I ruled that the statutory conditions for the admissibility of the statement were met and admitted it into evidence. I indicated to counsel that I would provide written reasons that would constitute the formal decision of the court. These are those reasons. [ 4 ]

Section 715.1(1) reads as follows: 715.1(1) 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 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.

[5] There are really three statutory criteria to the admissibility of a video-taped statement under s. 715.1: (1) thatthe victim or witness was under 18 years old at the time of the alleged offences; (2) that the video recording was made within areasonable time after the alleged offence; and (3) that while testifying, the victim or witness adopts the contents of the video recording.However, even if the three statutory pre-conditions are met, the trial judge has a residual discretion to decline to admit the statement if heor she is of the opinion that to do so would interfere with the proper administration of justice. [6] The complainant here was under the age of 18 years old at the time of the alleged offences and there was noargument that she did not adopt the contents of the video recording.

The accused argues that the evidence was not clear on when thealleged offences occurred so it is not possible to determine whether the recording was made within a reasonable time. [7] The onus is on the Crown to prove on a balance of probabilities that the statement was made within areasonable time after the alleged offence: R v K.S., 2016 ONSC 1403 para 21; R v T.R.J., 2014 BCSC 1611 at paras 78 and 88. [8] The requirement that the statement be taken within a reasonable time is rooted in the goal of s. 715.1 and thatis to preserve an early account of the child’s allegations and provide a mechanism to introduce it into the evidentiary record.

Section715.1 is focussed on the particular needs of children and the protective accommodations that are necessary for them to be able to conveywhat happened in what is typically a children-unfriendly environment. [9] While s. 715.1 of the Criminal Code demands that the passage of time between the alleged offence and thevideo recording be calculated, the result of that calculation alone will not determine what constitutes a reasonable time for the purposesof s. 715.1 of the Criminal Code. It is also not necessary that the duration of time be calculated with absolute precision.

Such a rigorousrequirement would, more often than not, be impossible to meet in cases involving young children. Furthermore, it would be wrong torequire the Crown to prove the precise date of the last incident on an application under s. 715.1 of the Criminal Code when they are notheld to that precision at trial. [10] Parliament left it to the courts to determine reasonableness in the specific circumstances of each case. Thepurpose of requiring the statements to be recorded within a reasonable time relates to the reliability of the statement.

The longer thedelay, the greater the impact of the child’s memory and the greater the chances of outside influence or third-party suggestions that mightinterfere with or taint the memory bank. The longer the delay, the greater the concern about reliability. [11] What is reasonable in this context depends entirely on the circumstances of the case: R v L.(D.O.), (SCC), [1993] 4 SCR 419 (WL) at para 75 [L.(D.O.)]. In assessing the reasonableness of the delay in making the statement, courts arereminded that it is common for children to delay disclosure.

There can also be other reasons for a delay in making the video-tapedstatement such as the need for the police to further investigate the allegations: L.(D.O.) at para 78. [12] While each case is fact specific, a court may determine that a video statement made months or even years afterthe alleged offence has been within a reasonable time by considering several factors, including: 1) the age of the child; 2) the explanation for the delay; 3) the impact of the delay on the child’s ability to accurately recall the events in issue; 4) the child’s relationship to the accused; 5) the length and frequency of the alleged offences; 6) the seriousness of the alleged offences; 7) any development stages the child may have gone through since the last alleged offence; 8) the child’s emotional makeup; and 9) any intervening events between the last alleged incident and the making of the statement that might affect the reliability of thestatement.

See: R v K.D.M., 2021 MBQB 2 at para 17; R v J.M., 2022 MBCA 25 at para 32, 411 CCC (3d) 372; R v R.A.H., 2017 PECA 5 at para42, 348 CCC (3d) 248. [13] It is also necessary to bear in mind that where there are multiple allegations of assaults over a period of time, theoperative time frame is the last incident, not the first: R v Archer (2005), (ON CA), 202 CCC (3d) 60 (Ont CA) atpara 74. [14] The complainant said her father moved out in 2019, she thought the spring. She also said it started when she was13 and she turned 13 she said in August 2019.

She said she, “was kind of sure she was 13 when all this happened”. For the purposes ofthe admissibility of the statement under s. 715.1 of the Criminal Code, I conclude that the last offence described by the complainantoccurred somewhere between the spring of 2019 and after the time in which she turned 13 in August 2019. The complainant gave thevideo-taped statement to the police in January 2020. [15] In considering whether the time between the video-taped interview and the last offence was unreasonable, Iremind myself that this assessment does not involve a pure mathematical exercise.

Children often delay disclosing anything that ignites acriminal investigation for many reasons. [16] I have considered all the factors that bear on the admissibility of the statement under s. 715.1. The complainant

was extremely traumatized during her testimony, even while watching her video-taped statement. She described incidents in which herfather forced her to rub his penis at night while she was in her bed. She said it happened several times, although she could not say howmany. She said she would shut her eyes and hope it was a nightmare. The complainant said she finally told her brother and he said to telltheir mom, which she did.

It was after this point in time that her mother took her to the police. [17] While I do not have more specific evidence as to the timing of the disclosure to the complainant’s mother, thecomplainant’s obvious distress when talking about the allegations was palpable. It took several breaks to allow her to compose herself tocontinue testifying. At one point she rocked back and forth, sobbing.

That she delayed in telling her brother and mother is not surprisinggiven her distress. [18] Based on the evidence tendered during the voir dire, I am satisfied that the length of time between the lastincident and the interview is a matter of months, not years. At this stage, I am only concerned with threshold reliability; ultimatereliability will be decided during the trial proper. There is nothing that diminishes or negatively affects the reliability of the video-tapedstatement.

I am satisfied that the statutory requirements of s. 715.1 have been met. [19] Although I am satisfied that the statutory requirements have been met, I have also considered whether theadmission of the statement would interfere with the proper administration of justice. That is, I have asked myself whether the statementconforms to the rules of evidence and whether its admission would operate unfairly to the accused: R v F.(C.C.), (SCC), [1997] 3 SCR 1183 at para 51 [F.(C.C.)].

In exercising the discretion to exclude a statement that meets the requirements of s.715.1, a court must consider several factors, including:

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. (F.(C.C.), at para 51; L.(D.O.) at para 67) [20] In considering the relevant factors, I can find no basis to conclude that the admission of the statement intoevidence would interfere with the proper administration of justice. Quite the contrary. Having heard and seen the complainant testify,and considered the questions asked by the police officer, I find that the statement honours the purpose of s. 715.1. [21] Accordingly, the statement will be admitted into evidence under s. 715.1. J. B.L. KLATT