HIS MAJESTY THE KING - v. –, 2023 SKKB 184

REDACTED VERSION KING ’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 184 Date: 20 23 08 29 Docket: CRM-RG-00154-2022 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and – J.M. 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to ss. 486.4(1) of the Criminal Code such that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.

RESTRICTION ON PUBLICATION: There is a court order prohibiting the publication or broadcast of any evidence tendered or submissions made in this application, including this decision, until the jury has retired to consider its verdict. The restriction on publication has been lifted pursuant to the judge’s order of October 18, 2023. Counsel: Derek J. Davidson for the Crown Thomas P. Hynes for the accused ORAL JUDGMENT ON CROWN APPLICATIONS MITCHELL J. DATED AUGUST 28, 2023 WRITTEN DECISION AUGUST 29, 2023 I. INTRODUCTION [ 1 ] Mr. J.M. [Mr.

M.] is charged with one count of sexual assault contrary to s. 271 of the Criminal Code , RSC 1985, c C-46 , and one count of sexual interference with a child under the age of 16 years contrary to s. 151 of the Criminal Code . The complainant is Ms. A.B. (date of birth: […], 2011), Mr. M.’s niece [complainant]. These offences are alleged to have been committed between January 17, 2015, and January 17, 2020. Throughout that time, the complainant was very young—between four and nine years of age. [ 2 ] Mr. M. has elected to be tried by a judge and jury. This trial is scheduled to commence on October 18, 2023.

[3] On June 13, 2023, a voir dire was held to determine the admissibility of a video-taped statement given by Mr.M. to Corporal Vivian Crumly [Cpl. Crumly] of the Regina Police Service [RPS] on May 27, 2020. The interview took place at theRegina Children’s Justice Centre [RCJC]. This statement was played in court during this voir dire. [4] As well, the Crown called Ms. Chanice Thera, an official from the Saskatchewan Ministry of Social Services,as a witness. Ms. Thera had monitored Cpl. Crumly’s interview with Mr. M. Sadly, Cpl. Crumly died on August 2, 2022. Consequently,Ms.

Thera is the only person other than the accused who was physically present at that interview. [5] On June 15, 2023, a second voir dire was held to determine the admissibility of a video-taped statement givenby the complainant to Cpl. Crumly on March 11, 2020, pursuant to s. 715.1 of the Criminal Code. This interview also took place at theRCJC. [6] At that time, the Crown called two witnesses. First, the complainant who testified virtually from a soft-room.Ms. L.S., the complainant’s foster mother was with her in this room as a support person as permitted under s. 486.1(1) of the CriminalCode.

Defence counsel cross-examined the complainant at this hearing. [7] Second, Constable Ashley Creaser, a member of the RPS testified. She became involved with the complainanton March 6, 2022 when the RPS was contacted by the complainant’s school. She monitored the video-taped interview with thecomplainant that Cpl. Crumly conducted on March 11, 2022. She was situated in the monitoring room adjacent to the interview room.She testified that she typed notes as this interview took place. [8] Two principal issues must be decided on these applications: 1) Has the Crown demonstrated beyond a reasonable doubt that Mr.

M.’s video-taped statement was voluntarily given [VoluntarinessIssue]? and 2) Has the Crown satisfied the statutory criteria set out in s. 715.1 of the Criminal Code on a balance of probabilities [Section 715.1Issue]? II. DISCUSSION [9] I will first address the Voluntariness Issue, and then the

Section 715.1 Issue. A. The Voluntariness Issue 1. Law [10] The law on voluntariness is well-settled.

The principal authorities from the Supreme Court of Canada include Rv Herbert, (SCC), [1990] 2 SCR 151; R v Oickle, 2000 SCC 38, [2000] 2 SCR 3 [Oickle]; R v Singh, 2007 SCC 48, [2007] 3 SCR 405 [Singh]; R v Sinclair, 2010 SCC 35, [2010] 2 SCR 310, and most recently, R v Tessier, 2022 SCC 35, 473 DLR (4th)317 [Tessier]. [11] The Supreme Court has recognized that the confessions rule “aspires to strike the right balance between theindividual and societal interests at play in police questioning: on the one hand, protecting the accused from improper interrogation by thepolice and, on the other, providing the authorities with the latitude they need to ask difficult questions to investigate and solve crimes”.See: Tessier at para 4, and Oickle at para 33. [12] To establish the admissibility of a statement it is necessary for the Crown to prove beyond a reasonable doubtthat the suspect possessed an operating mind and his or her will had not been overborne by police inducements, trickery, or oppressivecircumstances.

See: Tessier at para 68. The operating mind doctrine requires the Crown to show that the accused possessed the cognitiveability to understand what he or she was saying and to comprehend that the statement might be used as evidence in a criminal proceeding.See: Tessier at para 8. [13] To fulfil its burden, the Crown must demonstrate that throughout the circumstances leading up to the confessionor statement the accused was properly treated, and not subjected to questioning by any other police officer or state actor.

See, especially:R v Koszulap (1974), (ON CA), 20 CCC (2d) 193 (Ont CA) at 194 per Arnup J.A., and pages 197-198 per Martin J.A.[Koszulap], and R v Holmes (2002), (ON CA), 169 CCC (3d) 344 (Ont CA) at paras 16-22. [14] If other police officers also had contact with the accused, those individuals should be called as witnesses at thevoir dire determining the voluntariness of the confession or, at the very least, produced for purposes of cross-examination by defencecounsel.

See: R v Settee (1974), (SK CA), 22 CCC (2d) 193 (Sask CA) at 206-207 [Settee], and R v Donard, 2015SKCA 83 at paras 35-38 [Donard]. [15] Finally, if the Crown proves voluntariness beyond a reasonable doubt, there can be no finding of a violation ofthe right to silence secured by the Canadian Charter of Rights and Freedoms [Charter] in respect of the statement in question. See: Singhat para 31. 2. Analysis

[16] The Crown submits that although largely exculpatory, the video-taped statement which Mr. M. provided to Cpl.Crumly on May 27, 2020, was the product of an operating mind, and not the result of any inducement, trickery, or other oppressiveconduct. [17] Defence counsel submits that a voluntariness assessment requires that all circumstances be considered. Heemphasized that, regrettable as it is, the investigating officer could not be produced for questioning due to her death.

He pointed to Setteewhich held that “the Crown need only call those [persons in authority] who are present or involved” in the taking of the statement:Donard at para 37 citing Settee. Since the officer who took Mr. M.’s statement cannot be produced for cross-examination purposes, heargues that the Crown has failed to meet its burden, and it would be dangerous to find Mr. M.’s statement to have been voluntarily given. [18] The burden on the Crown to prove a confession is voluntary is onerous. Apart from the lamentable demise ofCpl.

Crumly, I am not persuaded that on the facts of this case, the Crown has satisfied it. While reviewing Mr. M.’s video-tapedinterview in isolation might lead one to believe the statement was the product of an operating mind, it does not reveal all thecircumstances surrounding it. [19] Mr. M. was not in custody at the time he provided this statement to the RPS. He came to the RCJC voluntarilywith his mother. There is a paucity of evidence about what transpired between his arrival at the RCJC and the commencement of hisinterview with Cpl. Crumly. The opening exchange between Mr. M. and Cpl.

Crumly is silent about those events. Did Mr. M. speak withanother police officer upon arrival at the RCJC? If so, what was the nature of that exchange? We simply do not know. [20] When attempting to prove the voluntariness of the statement, it is incumbent upon the Crown to explain allinteractions police had with an accused in a facility such as the RCJC. See, for example: Koszulap. I conclude that when viewedobjectively all the circumstances do not satisfy me the Crown has met its heavy burden to show that Mr. M.’s videotaped statement toCpl.

Crumly was voluntarily given in accordance with the jurisprudence. [21] For these reasons I will not admit it into evidence. B. The

Section 715.1 Issue 1. Law [22]

Section 715.1 of the Criminal Code is a remedial provision enacted in 1988 as part of a legislative packingdesigned to respond to the societal scourge of child abuse, and to accommodate the needs of child witnesses. See:

An Act to Amend the Criminal Code and the Canada Evidence Act, SC1987, c 24. It creates a statutory exception to the common law hearsay rule. [23] It authorizes the admissibility of a video recording made “within a reasonable time after the alleged offence” ifcertain statutory pre-conditions are met.

In R v F.(C.C.), (SCC), [1997] 3 SCR 1183 at paras 18-24 [F.(C.C.)], Cory J.for the court explained that the purpose of s. 715.1 is two-fold: (1) to enhance the ability of the court to discover the truth, by preservingwhat is likely the child’s most accurate and best recollection of the alleged event, and (2) to prevent or substantially reduce the likelihoodof inflicting further injury upon the child witness as a result of their participation in court proceedings.

See also: R v L. (D.O.), (SCC), [1993] 4 SCR 419 at 444-445 [L.(D.O.)] per L’Hereux-Dubé J concurring. [24] There are three statutory criteria applicable to the admissibility of a video-taped statement under s. 715.1 of theCriminal Code: (1) the victim or witness was under 18 years of age at the time of the alleged offence(s); (2) the video recording wasmade withing a reasonable time after the alleged offence(s), and (3) while testifying the victim or witness adopts the contents of thevideo recording.

Even if these three criteria are met, a trial judge has a residual discretion to decline to admit the statement if he or she isof the opinion that to do so would interfere with the proper administration of justice. See, for example: R v A.I.Z., 2023 SKKB 76 at para5 [A.I.Z.]. [25] The function of a voir dire into the admissibility of a video-taped statement is not to determine issues ofcredibility or weight.

Rather, it is to determine whether, having regard to the requirements of s. 715.1 of the Criminal Code andconsidering the relevant factors as set out in F.(C.C.) at para 51, and L.(D.O.) at 464, the admission of the statement would operateunfairly to the accused. See, for example: A.I.Z. at para 19, and R v S.(J.), 2017 ONSC 6363 at para 13. 2. Analysis [26] The complainant was under the age of 18 years at the time the offences are alleged to have occurred.

Plainlythen, the first statutory criterion is satisfied. [27] The second statutory criterion asks if the video-taped statement was made within a reasonable time after theoffence is alleged to have occurred. The Crown bears the onus to prove this criterion on a balance of probabilities. See: A.I.Z. at para 7,and R v D.T., 2017 ONSC 1953 at para 6 [D.T.]. [28] To determine reasonableness, a court must consider the period of time which has elapsed between thecommission of the alleged offence and when the complainant provided the video-taped statement to police outlining the details of theoffence.

It is not imperative that this time-period be calculated with absolute precision. Nor will this calculation alone determine whatqualifies as a “reasonable time” for the purposes of s. 715.1. See: A.I.Z. at para 9, and D.T. at para 7. [29] Case-law has held that where the alleged offence involves the ongoing sexual abuse of a young complainantwhich took place over a prolonged period, the relevant starting date of the time period which must be reasonable is the date of the “lastincident of abuse”. See: R v Archer (2005), (ON CA), 202 CCC (3d) 60 (Ont CA) at paras 73-74, and A.I.Z. at para13.

[30] What is reasonable depends entirely on the specific circumstances of the case. See: L.(D.O.) at 468. In A.I.Z. atpara 12, Klatt J. identified a number of factors relevant to this assessment gleaned from relevant case authorities.

These include: 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. [31] The “most important” of these various factors are “the reasons for the delay and the impact of delay on thechild’s ability to accurately recall the events in issue”.

See: R v S.(P.) (2000), (ON CA), 144 CCC (3d) 120 (Ont CA)at para 71, and D.T. at para 9. [32] I have carefully reviewed the transcript of the complainant’s interview with Cpl. Crumly on March 11, 2020. Nospecific timelines are identified. The complainant stated that the alleged assaults upon her started when she was approximately five yearsold, and concluded when she was eight years old. She said these assaults happened whenever she went to her grandmother’s house tovisit. Mr. M. lived at that house; the complainant and her family did not but visited frequently.

The complainant stated that most of thealleged assaults took place in Mr. M.’s bedroom. [33] The complainant turned eight years of age on […], 2019. The statement was given on March 11, 2020.Apparently, the complainant’s school alerted the RPS to her situation on or about March 6, 2020. Constable Creaser testified that sheattended at the complainant’s school with Ms. Janine Hackl, a social worker, on March 9, 2020, at which time they spoke with thecomplainant. [34] In the interview, the complainant explained that she first disclosed the alleged abuse to her father, and, sometimelater to her grandmother.

The complainant said that her grandmother told her she would tell Mr. M. to stop and would also call the police.Shortly after the complainant told her grandmother she said the alleged abuse stopped. The police, however, were never called. Thecomplainant said this happened in “January”, but she did not say what year. [35] As I am only assessing threshold reliability, I can infer that it was likely in early January 2020 when thecomplainant was still eight years old that the alleged abuse came to an end.

The disclosure to police and the recorded interview tookplace in March 2020, approximately three months later. [36] Taking the age of the complainant into account, and the on-going nature of the alleged abuse, I find that thelength of time between the last incident of the alleged abuse and the March 11, 2020 interview was a matter of months, not years. I ampersuaded that this interview was recorded within a reasonable time for the purposes of s. 715.1 of the Criminal Code. [37] Finally, I find that in her testimony under oath before me the complainant adopted the contents of the recordedstatement.

The complainant was not the most articulate child witness, and appeared reticent at times; however, at no time did she recantor otherwise alter the information she provided to Cpl. Crumley during the recorded interview. [38] Although I am satisfied that the statutory requirements set out in s. 715.1 have been met on a balance ofprobabilities, I must also consider whether the statement would interfere with the proper administration of justice. I must ask whether therecorded statement conforms to the rules of evidence and whether its admission would operate unfairly to the accused.

See: A.I.Z. at para19. [39] In F.(C.C.) at para 51, Cory J. for the court identified several factors a court should consider when exercising itsdiscretion to exclude a statement which meets the requirements of s. 715.1. (

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. See also: L.(D.O.) at 464. [40] Cases where a videotape which complies with the basic statutory requirements should be excluded because itsadmission would operate unfairly to the accused will be “relatively rare”: F.(C.C.), at para 52. See further: R v Potvin, (SCC), [1989] 1 SCR 525 at 548, and L.(D.O.) at 464. [41] On the voir dire, counsel voiced their concerns about the complainant’s video-taped statement. Crown counselacknowledged that Cpl.

Crumley’s questioning of the complainant was problematic as it was often leading. He acknowledged, as well,that the complainant had told her father and grandparents about the alleged abuse which could affect the accuracy of the complainant’srecollections. [42] He pointed to certain comments made by the complainant about her concern that Mr. M. might go to prison ifpolice became involved; however, he submitted that these few statements could be excised from the statement. [43] Finally, he pointed to the fact that Mr. M. has elected a jury trial.

It would be difficult, he submitted, for thiscomplainant to testify before a room full of complete strangers. Admitting the video-taped statement would alleviate some of her anxiety,but she would still be subjected to cross-examination on this statement by defence counsel. [44] Defence counsel stated that the video-taped statement is hearsay and therefore presumptively inadmissible. Heargued that not only were the questions put to the complainant leading, but the narrative also provided only a “loose and nebulous time-line”. This lack of specificity, he contended, can only be prejudicial to Mr.

M. [45] Defence counsel emphasized the length of time which had passed between the date the video-taped statementwas given until the trial – more than three and one half years.

This effluxion of time, he contended, together with the complainant’s lessthan forthcoming testimony on the voir dire, raise serious concerns about whether she can accurately recall the alleged episodes ofassault described in that statement. [46] All of these concerns, he argued, demonstrate that admitting the complainant’s video-taped statement intoevidence would operate unfairly to the accused. [47] I begin my assessment of these arguments by reminding myself that on this voir dire, I am only determining thethreshold reliability of the complainant’s video-taped statement, and the Crown must persuade me that it has satisfied the statutoryrequirements for its admissibility on a balance of probabilities. [48] While I agree that certain features of the video-taped statement give me pause— notably the tendency of Cpl.Crumley to ask leading questions of the complainant—I cannot conclude that admitting it into evidence would interfere with the properadministration of justice.

At trial, the complainant will be cross-examined by defence counsel, and her credibility formally assessed. Anydifferences between what she said in the video-taped statement and her viva voce evidence at trial will be relevant when assessing thewhole of the evidence. Defence counsel can claim that any inconsistencies between the two accounts so undermine the witness'scredibility or reliability as to raise a reasonable doubt.

See: R v S.A.S., 2023 ABCA 236 at para 39. [49] In conclusion on this aspect of the Crown’s application, I concur with the statement found at page 78 of JeffreyNels Westman, “No Matter How Small: Child Witnesses in Canadian Criminal Trials” (2018), 23 Appeal : Finding a video-recorded statement made under

section 715.1 to be inadmissible is the exception to the general rule of L(DO). The courtis more likely to admit these video-recorded statements, and the arguments that occur thereafter are going to be focused on the weightand reliability of that statement because those are the criteria that must be evaluated by the trier of fact. By focusing on evaluating thetestimonial evidence of children, rather than determining whether or not it should be admitted, courts become focused onconsidering the best evidence possible and subject that evidence to the same rigorous scrutiny and questions of reliability thatother evidence faces. [Emphasis added] 3. Conclusion on the

Section 715.1 Issue [50] Accordingly, for these reasons I find that the complainant’s videotaped statement given to Cpl. Crumley onMarch 11, 2020 under s 715.1 of the Criminal Code may be admitted as evidence of its contents and form part of her evidence-in-chief. III. CONCLUSION [51] I have concluded the following: a. On all the circumstances viewed objectively Mr. M.’s videotaped statement to Cpl. Crumly on May 27, 2020 was not voluntarily

given in accordance with the jurisprudence, and is inadmissible, and b. The complainant’s video-taped statement given to Cpl. Crumly on March 11, 2020 satisfies the statutory pre-conditions set out in s. 715.1. Its admission into evidence would not interfere with the proper administration of justice and would not operate unfairly to the accused. It is admissible. J. G.G. MITCHELL