R. v. G.H., 2019 NLSC 176

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. G.H. , 2019 NLSC 176 Date : October 7, 2019 Docket : 201801G5447 Her Majesty The Queen v. G. H. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice James P. Adams Judgment Given Orally with Reasons to Follow Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 9, 10 and 11, 2019 Date of Oral Judgment: September 20, 2019

Summary:

The accused was charged with various sexual offences against E.H., a child under 16 years old. E.H. gave three video-recordedstatements to the police. The Crown sought to have the video statements entered as evidence pursuant to s. 715.1 of the Criminal Code. Held: Application allowed. Appearances: Shawn I. Patten Appearing on behalf of the Crown Rosellen Sullivan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. L. (D.O.), (SCC), [1993] 4 S.C.R. 419; R. v. Archer (2005), (ONCA), 203 O.A.C. 56, 34 C.R. (6th) 271; R. v. F. (C.), (SCC), [1997] 3 S.C.R. 1183; R. v.

M .(J.), 2016 ONSC 535; R. v.G. (K.W.), 2014 ABCA 124 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Adams, J.: INTRODUCTION [1] G.H. is charged with various sexual offences against E.H., a person under 16 years of age. The matter is set to go to trial on 23October 2019 before a judge and jury. [2] E.H. gave three prior statements to the Royal Newfoundland Constabulary (“RNC”) all of which were video and audiorecorded. Pursuant to

section 715.1 of the Criminal Code, R.S.C. 1985, c. C-46, the Crown sought to have the three statements enteredas the evidence of E.H., along with her viva voce evidence. G.H. opposed the application. [3] It was common ground that if the statements were to be entered, they would require substantial editing to remove inadmissibleevidence. A voir dire was held in which the editing process was completed. It is the edited versions of the statements the Crown soughtto have admitted.

E.H. testified at the voir dire and adopted the statements as being true. [4] On 20 October 2019 I allowed the Crown’s application with reasons to follow. These are those reasons. background [5] G.H. is charged with[1]: Count 1 Between the 12th day of March 2013 and the 12th day of March 2014, at or near Roddickton, Newfoundland and Labrador, did commit asexual assault on E.H., contrary to

section 271(

a) of the Criminal Code; Count 2 Between the 1st day of December 2014 and the 15th day of September 2016, at or near Paradise, Newfoundland and Labrador, did

commit a sexual assault on E.H., contrary to

section 271 (

a) of the Criminal Code ; Count 3 Between the 1st day of December 2014 and the 15th day of September 2016, at or near Paradise, Newfoundland and Labrador, did for a sexual purpose touch directly or indirectly, E.H., a person under the age of sixteen (16) years, with a part of his body, or with an object, contrary to

section 151 (

a) of the Criminal Code ; Count 4 Between the 1st day of May 2015 and the 31st day of August 2016, at or near Paradise, Newfoundland and Labrador, did make available sexually explicit material to a person who is or who he believes is under the age of sixteen (16) years for the purpose of facilitating the commission of an offence with respect to that person under subsection 151, 152, 160(3), 173(2), 271, 272, 273 or 280, contrary to

section 171.1(1) (

b) of the Criminal Code ; Count 5 Between the 1st day of January 2016 and the 31st day of August 2016, at or near St. John’s, Newfoundland and Labrador, did commit a sexual assault on E.H., contrary to

section 271 (

a) of the Criminal Code ; Count 6 Between the 1st day of January 2016 and the 31st day of August 2016, at or near St. John’s, Newfoundland and Labrador, did for a sexual purpose touch directly or indirectly, E.H., a person under the age of sixteen (16) years, with a part of his body, or with an object, contrary to

section 151 (

a) of the Criminal Code ; Count 7 Between the 1st day of May 2016 and the 31st day of August 2016, at or near St. John’s, Newfoundland and Labrador, did wilfully do an indecent act in a public place in the presence of one or more persons, contrary to section 173(1) (

a) of the Criminal Code ; Count 8 Between the 1st day of May 2016 and the 31st day of August 2016, at or near St. John’s, Newfoundland and Labrador, did for a sexual purpose expose his genital organs to E.H., a person under the age of sixteen (16) years, contrary to section 173(2) (

a) of the Criminal Code ; Count 9 Between the 1st day of June 2016 and the 31st day of August 2016, at or near Arnold’s Cove, Newfoundland and Labrador, did commit a sexual assault on E.H., contrary to

section 271 (

a) of the Criminal Code ; Count 10

Between the 1st day of June 2016 and the 31st day of August 2016, at or near Arnold’s Cove, Newfoundland and Labrador, did for a sexual purpose touch directly or indirectly, E.H., a person under the age of sixteen (16) years, with a part of his body, or with an object, contrary to

section 151 (

a) of the Criminal Code ; [ 6 ] G.H. is the boyfriend or partner of one of E.H.’s aunts, her mother’s sister. The alleged assaults and other sexual activity are stated in the Indictment to have occurred between March 2013 and September 2016, when E.H. was between 10 years and 13 years old. [ 7 ] E.H. made three video-recorded statements to the police – the first on 16 September 2016, the second on 13 October 2016 and the third on 16 March 2017. The first statement came about as a result of a complaint made by E.H. or her parents to the RNC which prompted an investigation.

Constable Lisa Anderson, who was not the investigating officer but who has considerable training and experience in investigating child sexual allegations, was asked by the lead investigator to obtain a statement from E.H. The statement was made at RNC Headquarters in a room with comfortable furniture called “the Parlour”. It was audio and video recorded. Constable Anderson also had a portable recorder on a table in front of E.H. which recorded the audio only.

The camera is high up in the ceiling of the room and looks down on the participants. [ 8 ] The second statement was taken on 13 October 2016 at the request of E.H. Between the first and second interviews, E.H. (or her parents) advised the RNC that E.H. had spontaneously recalled more allegations of sexual abuse at the hands of G.H. and she wished to make a further statement. [ 9 ] Following the second statement and, due to significant differences between the allegations made in the first and second statements, the RNC investigators requested a third statement from E.H. to “clarify” the discrepancies.

That statement was taken on 16 March 2017. [ 10 ] In total, the three statements covered approximately five hours of evidence from E.H. [ 11 ] The Crown seeks to have the three video-statements entered into evidence pursuant to

section 715.1(1) of the Criminal Code . [ 12 ] A voir dire was held on 9 to 11 September. The Crown acknowledged that the statements required substantial edits to eliminate inadmissible evidence. While the accused’s position was that the statements ought not to go into evidence at all, the defence and the Crown suggested edits, some of which were eventually ordered by me. position of the crown [ 13 ] The Crown submitted that the statutory criteria in

section 715.1 have been met in this case and there is no justification for me to exercise my discretion to rule the video recordings inadmissible on the grounds of interfering with the administration of justice. [ 14 ] Crown counsel stated that he intends to call E.H. to give viva voce evidence of the allegations in the Indictment. If E.H. fails to fully describe the allegations for some reason, then he intends to enter the three edited statements as part of E.H.’s examination-in-chief.

He asserts that the RNC has confirmed (through testimony of Constable Squires, a member of the RNC with technical experience in such matters) that the RNC can edit the video recording to remove the parts ruled inadmissible and to enhance the quality of the sound of E.H.’s voice, which he acknowledges at times is very low and difficult to hear.

He says that any obvious breaks in the recording can be the subject of an appropriate instruction to the jury so that they will not be distracted by it. position of the defence [ 15 ] Counsel for G.H. submitted that the video recordings, even as edited, should not be admitted into evidence.

The time between the first allegation of sexual assault and the time of the first recorded statement is over three years and this cannot be considered reasonable in all the circumstances. [ 16 ] Counsel submitted that I should exercise my discretion to exclude the statements as their admission would interfere with the proper administration of justice. She submitted that there are numerous inconsistencies in the statements, the edits are numerous and extensive and would serve to confuse the jury and raise questions in their minds as to what may have been excised.

She said many of the questions put by Constable Anderson are leading and repetitive and E.H. has shown her herself to be fully able to give viva voce testimony. She submitted that the purpose of

section 715.1 would not be met by admitting the videos. In all, she submitted that the admission of the videos would render the trial unfair to G.H. considerations [ 17 ] E.H. alleges that she was sexually assaulted by G.H. from the time she was 10 years old until she was 13. E.H. was born on 12 March 2003. The assaults are alleged to have occurred in various locations, including a trailer belonging to G.H. while parked beside his house, in the woods close to where G.H. had his trailer located for the summer, in various places in G.H.’s house, in E.H.’s house and in G.H.’s truck.

The allegations include sexual intercourse, G.H. exposing his genitals to E.H., G.H. showing E.H. pornographic materials and G.H. touching E.H. for a sexual purpose. [ 18 ] G.H. is reportedly 56 years old and is the partner of E.H.’s aunt, her mother’s sister. The assaults allegedly occurred between 12 March 2013 and 15 September 2016. E.H. was uncertain of the exact time of the first incident but it was while they were on a family vacation in the community of R. where G.H. grew up. The last alleged incident occurred in August or September 2016. [ 19 ]

Section 715.1 of the Criminal Code states: 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. [20]

Section 715.1 is an exception to the hearsay rule which prohibits most out of court statements from being admitted as evidencein a trial. In R. v. L. (D.O.), (SCC), [1993] 4 S.C.R. 419, the Supreme Court of Canada upheld the constitutionality ofthe

section and found that it has two goals (at paragraphs 35 and 36): 1) … to preserve an early account of the child's complaint in order to assist in the discovery of the truth and to provide a procedure forthe introduction of the child's story into evidence at the trial; and 2) … diminish the stress and trauma suffered by child complainants as a by-product of their role in the criminal justice system. [21] These laudable goals must be balanced with the right of the accused to a fair trial. They are designed to promote the truthseeking function of the court.

The procedures are designed, among other things, to afford a child complainant the opportunity to answerdelicate and embarrassing questions in a more controlled and comfortable environment than in the open court setting, facing the accused. [22]

Section 715.1 sets out certain statutory requirements before a video can be admitted pursuant to it: 1) The child must have been under the age of 18 at the time the offence is alleged to have occurred; 2) The video must have been made within a reasonable time of the alleged offence; 3) The complainant must describe the acts complained of; and 4) The complainant must adopt the contents of the video. [23] Even if all these statutory requirements have been met, the

section preserves a discretion in the trial judge to exclude the videoif it’s admission would interfere with the proper administration of justice. Every case must be decided on its own merits. [24] It was not seriously questioned that the complainant was under 18 at the time of the alleged offences, that she described the actscomplained of and that she adopted the contents of the videos in her testimony in the voir dire. [25] The only statutory condition questioned by the defence is whether the video statements were made within a reasonable period oftime after the alleged offence.

I find there is no merit in this objection. [26] The accused submitted that it is over three years from the time of the first allegation to the date of the first video and that this isan unreasonable delay in making the video statement. However, the authorities hold that where an alleged offence involves ongoingsexual abuse over a prolonged period, the operative date for the purpose of

section 715.1 is the date of the last incident: R. v. Archer(2005), (ON CA), 203 O.A.C. 56, 34 C.R. (6th) 271. [27] In this case, the last incident is alleged to have occurred in August or September of 2016. The first statement was taken on 16September 2016, no more than a few weeks at most since the last event. The second statement was recorded on 13 October 2016, nomore than 8 to 10 weeks at most since the last alleged incident. [28] The third video was not made until 16 March 2017, more than six months after the last alleged incident.

However, thatstatement was made at the request of the RNC to clarify some information provided by E.H. in her first and second statements. Therefore, I find that this delay should not be held against her. In any event, I find that six months is not an unreasonable delay in thecircumstances. The parties also agreed that if any of the statements are admitted, all three of them should be admitted. [29] The most serious objection by the accused to the admission of the videos is that they would interfere with the properadministration of justice. The Supreme Court of Canada in R. v.

L. (D.O.) supra, at paragraph 67 sets out factors for a trial judge toconsider when determining whether to exercise his/her discretion to exclude a video on this ground, not all of which will apply in everycase: 67. …

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.

a) Form of Questions [30] To be admissible under

section 715.1, the interviewer should use simple, open-ended questions. In this case, ConstableAnderson at many times asked leading questions of E.H. and repeated E.H.’s answers. This may undermine the reliability of thestatements but that is a question for the jury and does not affect their admissibility (R. v. F. (C), (SCC), [1997] 3 S.C.R.1183, at para. 46). [31] Counsel for the accused is permitted to cross-examine a complainant on inconsistencies in her testimony, including the videosand argue that the jury should not rely on the videos because of the manner in which the interview was conducted.

b) This factor does not apply

c) The quality of the video and audio [32] The high angle of the camera together with the complainant looking down makes it difficult at times to see E.H’s face. Theaudio is of poor quality and it is often difficult to hear E.H. Crown counsel indicated (and Constable Squires of the RNC testified), thathe can improve the quality of the audio. As well, it was indicated that the audio from the portable recorder which is said to be a betterquality, can be married to the video. [33] If these technical improvements can be completed, I conclude that the quality of the video and audio is acceptable.

d) Presence or absence of inadmissible evidence

e) The ability to edit the recording to eliminate it [34] The videos contained a great deal of inadmissible and inappropriate material. During the voir dire, counsel for the Crownsuggested that substantial portions of the videos be excised. In addition to that, counsel for the accused (while maintaining her positionthat the videos should not be admitted at all) suggested many other edits if the videos are admitted into evidence. The Crown agreedwith many of the suggested edits by the defence. Others were left for me to decide.

I also reviewed all the suggested edits agreed to byboth sides and, applying my independent judgment, agreed with them. [35] The court was provided with a transcript of all three videos as an aid without which much of what was said by E.H. would nothave been decipherable. The technical enhancements referred to earlier may improve this. However, the extent of the edits are a causefor concern. Whole pages in succession and large passages of dialogue have been excised from the videos. This will undoubtedly affectthe flow of the interviews and may be confusing for the jury.

It will also leave the jury wondering what has been excised. While aninstruction to the jury to ignore this can be given, it is nevertheless of concern that the significant number of edits may cause the jury tospeculate on what may be missing. [36] And, of course, counsel for the accused is permitted to use anything from the previous statements, including anything excised,to attempt to undermine the credibility and reliability of E.H.’s testimony. This too may cause the jury to speculate as to what else maybe in the videos.

f) Not applicable

g) Not applicable

h) Use of other methods to facilitate the complainant’s giving of evidence [ 37 ] The Crown indicated that E.H. will testify to the incidents complained of in the videos and contained in the Indictment. He wishes to have the videos ruled admissible in case E.H. is unable to present her testimony in court.

Section 715.1 contemplates that a video statement is admissible even though the complainant also testifies. Both the complainant’s viva voce testimony and the videos once adopted by her would constitute her complete examination-in-chief: R. v. F. (C.) , supra , at paragraph 45 . [ 38 ] In this case, E.H. is able to testify. She is 16.5 years of age. She has already testified in the Preliminary Inquiry and there is no indication that she had any significant problems.

E.H. testified at the voir dire and appeared articulate and reasonably confident in her testimony, although, she was simply asked to adopt her statement and confirm that she was intending to tell the truth in them. She was not asked to relate the allegations of assault of which she complains and she was not subjected to vigorous cross-examination. [ 39 ] But it is not as if E.H. is a child of tender years, which the provisions of

section 715.1 appear to have been designed to accommodate: R. v. M. (J.) , 2016 ONSC 535 at paragraph 29 . She appeared intelligent and alert at the voir dire . She is just starting grade 11 and has not failed a grade in school. She indicated that watching the videos during the voir dire helped to refresh her memory as would be the case for any witness.

It would be perfectly proper for her to refresh her memory by reviewing previous statements in preparation for her testimony. [ 40 ] The Crown has not sought, nor to my knowledge has E.H. asked, to have E.H. testify with the aid of a screen or to testify by video to avoid her having to relate these very difficult incidents in front of G.H. [ 41 ] E.H. appeared reluctant in her demeanour, particularly in the first interview but significantly less so in the second and third interviews.

She expressed generally fear and reluctance in coming forward earlier due to the family connections and their possible disruption but was not specific that she feared retribution or physical danger in exposing the alleged abuse. Indeed, her revelations in the second interview were very different than those referred to in the first interview. Moreover, E.H. did not suggest in her testimony in the voir dire that the new, and arguably far more serious assaults, alleged in the second interview were not brought up in the first interview due to fear.

She said the new revelations came to her following a family trip to “Toys R Us” where she had a nosebleed and some wetting in her vaginal area which triggered her recollection of the additional allegations. [ 42 ] There is evidence that E.H. spoke to her father and perhaps others prior to providing the second statement and notes to which she referred in the first statement were written by her aunt, although E.H. testified that she dictated the notes.

For example, in the first statement, E.H. referred to the accused’s penis as his “birdie” as she said that was the terminology her father used and she was unable to actually name the female body parts to which she referred. However, by the second statement, E.H. referred to the male and female body parts by their correct anatomical terms, i.e., penis and vagina, for instance. [ 43 ] It is unclear how E.H. came to this realization and ability to express herself. It is possible it was as a result of discussions with others.

It is equally possible that following the first interview where E.H. appeared reticent and shy, by the second interview she had gained sufficient confidence to be more expressive and forthcoming. It would not be believable if she said she had not discussed these allegations with her family. In my view, in the circumstances of this case, whether E.H. was coached or was expressing her own recollections is a matter of weight to be given to her statement by the jury and does not go to admissibility. That is an issue counsel for G.H. can explore in cross-examination.

i) Trial by judge alone or jury [ 44 ] This trial will take place before a jury. The law is clear that the videos may not be used to corroborate the viva voce testimony of the complainant: R. v. G. (K.W.), 2014 ABCA 124 . The videos form part of her testimony in chief and are admitted as proof of their contents. It is not a prior consistent statement which would be inadmissible: R. v. L. (D.O.) , supra at paragraph 58 . [ 45 ] Counsel for the defence submitted that there is a real fear that the jury may use the videos for the improper purpose of bolstering E.H.’s testimony. But that is true in any case involving statements admitted under

section 715.1 . The jury must be instructed as to how they may use the videos. I have confidence that the jury will follow these instructions in that respect.

j) The amount of time elapsed since the recording and the complainant’s ability to testify [ 46 ] Approximately two and one half years have elapsed since the third video was made. As already indicated, E.H. testified that viewing the videos refreshed her memory. conclusion [ 47 ] All of that having been stated, E.H. is still only 16, not a child of tender years by any means, but neither is she a mature adult. E.H. will be faced with the prospect of relating intimate and embarrassing details of horrific allegations in front of G.H. and a jury in a very formal and largely foreign environment.

She will be subjected to cross-examination by a skilled lawyer. It is not beyond contemplation that she may forget some of the incidents or times or places where they allegedly occurred. [ 48 ] Having met the statutory conditions, it remains for me to weigh the factors outlined above, together with the other evidence, to determine whether the admission of the videos in all the circumstances would interfere with the proper administration of justice, having due regard to the goals of

section 715.1 and the fair trial rights of the accused. [ 49 ] Weighing all of this in the balance, while it is a close call, I have come to the conclusion that the search for truth and the protection of vulnerable children tip the scale in favour of admission of the edited videos. The fair trial rights of the accused will be protected through the ability of counsel to cross-examine the complainant on her viva voce evidence, as well as her statements in the videos, should they be entered into evidence. [ 50 ] In the result, the application is allowed.

_____________________________ James P. Adams Justice