HIS MAJESTY THE KING - v. –, 2023 SKKB 284

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 284 Date: 2023 09 13 Docket: CRM-BF-00016-2022 Judicial Centre: Battleford BETWEEN: HIS MAJESTY THE KING - and – MICHAEL MACKAY PUBLICATION RESTRICTION : The evidence taken and representations made during this voir dire , as well as these reasons for ruling, shall not be published in any document or broadcast in any way until such time as the accused’s trial has ended or the matter has otherwise been resolved. The Publication Restriction has been lifted pursuant to the conviction of November 20, 2023.

RESTRICTION ON PUBLICATION : The publication of these reasons is restricted pursuant to ss. 486.5(2) of the Criminal Code such that any information that could identify the justice system participants E.M. and V.M. shall not be published in any document or broadcast or transmitted in any way. Counsel: Oryn T. Holm for the Crown Nicholas J. Stooshinoff, K.C. and Kimbal A. MacMillan for the defence ___________________________________________________________________________ RULING ON VOIR DIRE RE s. 715.1 AND HEARSAY HILDEBRANDT J.

September 13, 2023 ___________________________________________________________________________

INTRODUCTION [1] Michael MacKay [Mr. MacKay] is charged that on or about the 12th day of February, 2020, at or near Meota,Saskatchewan he did commit first degree murder on the person of Cindy MacKay, contrary to s. 235(1) of the Criminal Code, RSC1985, c C-46. A jury trial is set for October 16 – November 24, 2023 to consider the one-count indictment. [2] A voir dire was conducted during the week of June 5, 2023, with submissions by counsel on June 30, 2023, to,inter alia, ascertain the admissibility of two video recorded statements made to the police by Mr.

MacKay’s young daughters, E.M. [E.]and V.M. [V.], on February 11, 2020, the day before the death of Cindy MacKay. [3] It is the submission of Crown counsel that both statements may be admitted into evidence pursuant to s. 715.1of the Criminal Code but, should it be determined that they are not admissible under this section, they are admissible using the approachthat they constitute a principled exception to the rule against hearsay.

Defence counsel is opposed to the admission of either statement. [4] Initially, both Crown and defence counsel proposed that I make a determination regarding the admissibility ofthese statements without the necessity of calling either E. or V. to testify at the voir dire, reviewing only the statements, the transcripts ofthe statements, and the pertinent excerpts from the preliminary hearing.

However, V. was not called to testify at the preliminary hearing.I also considered it necessary to hear from E. and V., in keeping with my independent obligation to assess whether the requirements ofadmission have been met, in keeping with R v P.W.M., 2018 PECA 24 at para 14, 366 CCC (3d) 374. Accordingly, E. and V. eachtestified at the voir dire from the soft room accompanied by a support person from Victim Services. [5] The recordings of the interviews with both E. and V. were reviewed on the voir dire.

The CD recording of E.’sinterview was marked as Exhibit P13, with the transcript of that interview marked as Exhibit P4, and the excerpt from the preliminaryhearing marked as Exhibit P5. With respect to V., the CD recording of her interview was marked as Exhibit P14 and the transcript of thatinterview was marked as Exhibit P15. Cst. James Rushowick [Cst. Rushowick], who conducted both interviews, also testified at the voirdire.

ISSUES [6] For each of the proposed witnesses, E. and V., the issues are whether the respective statement may beadmitted under either s. 715.1 of the Criminal Code or the principled exception to the rule against hearsay. [7] For the reasons outlined in the following, I have determined that the statement made by E. to Cst. Rushowickon February 11, 2020 is admissible, both pursuant to s. 715.1 of the Criminal Code and as a principled exception to the rule againsthearsay, but the statement made by V. is not admissible.

ANALYSIS [8] At the outset of the defence argument regarding the admissibility of the children’s statements, defence counselnoted that the rationale for the creation of s. 715.1 of the Criminal Code was to enable statements by child victims to be used against theoffender who perpetrated an offence against them. Although counsel acknowledged that the wording of the

section references both “avictim or other witness”, he nonetheless submits that, when considering the liberty of an individual before the court on a matter in whichthe child witness is not the victim, an expansive

interpretation of s. 715.1 cannot be accepted. Crown counsel, on the other hand, submitsthat the video recording of the statement “has become a time capsule of what [the witness’] memory was at the time and, as such, is“exactly why we have s. 715.1”. The provision 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 theoffence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victimor witness 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.

(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1). [Emphasis added] [9] In R v F.(C.C.), (SCC), [1997] 3 SCR 1183 [F.(C.C.)], the Supreme Court of Canadacommented on the purpose of s. 715.1, at paras. 18-19: 18 The

interpretation of legislation will always be facilitated by a consideration of its aim or goal. In the case of R. v. L. (D.O.), (SCC), [1993] 4 S.C.R. 419 (S.C.C.), the constitutional validity of s. 715.1 was considered. The

section was unanimously heldto be constitutionally valid. Chief Justice Lamer, writing for six members of the Court, made this comment upon the aim and purpose ofthe

section at p. 429: By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminaljustice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and thediscovery of truth. 19 It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more thanadults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later.

Theyounger the child, the more pronounced will this be. Indeed to state this simply expresses the observations of most Canadians. It is acommon experience that anyone, and particularly children, will have a better recollection of events closer to their occurrence than he orshe will later on. (See, e.g., Rhona Flin & J.R. Spencer, "Do Children Forget Faster?", [1991] Crim L.R. 189, at p. 190.) It follows thatthe videotape which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect

a more accurate recollection of events than will testimony given later at trial. Thus the

section enhances the ability of a court to find the truth by preserving a very recent recollection of the event in question . [Emphasis added] [ 10 ] The court added, at para. 21 of F.(C.C.) : 21 It can thus be seen that the primary goal of the

section is to create a record of what is probably the best recollection of the event that will be of inestimable assistance in ascertaining the truth. The video record may indeed be the only means of presenting a child's evidence . For example, a child assaulted at the age of three or four years may have very little real recollection of the events a year or two later when the child is attempting to testify at trial. Justice L'Heureux-Dubé in her minority reasons in L. (D.O.) , supra , noted the fundamental importance of having the videotape before the court. At p. 450 she stated:

Section 715.1 ensures that the child's story will be brought before the court regardless of whether the young victim is able to accomplish this unenviable task. [Emphasis added] [ 11 ] It is with this purpose in mind—the preservation of evidence and the ascertainment of truth—that I will consider the statements made by E. and V. in relation to s. 715.1 . However, as there are somewhat different considerations applicable to each of the statements, they will be considered separately below. [ 12 ] Prior to that, initial consideration will be given to the testimony of Cst.

Rushowick, a member of the RCMP for over 14 ½ years, who took both statements. [ 13 ] Cst. Rushowick had taken training, including advanced training, in child interviewing and had conducted over 50 interviews with children prior to his interviews with E. and V. on February 11, 2020. He first interacted with the children at the Saskatoon RCMP detachment and, apart from briefly greeting the children in the lobby and learning who each child was, his entire interactions are on the video recordings. [ 14 ] Cst.

Rushowick had not researched the overall investigation, indicating he had only a “small knowledge” of the nature of the concern, which was administration of a noxious substance, as noted in the opening paragraphs of Exhibits P4 and P15. The lack of research is intentional, enabling a “cold interview” so that the interviewer does “not have any biases that might affect the interview”. [ 15 ] Cst. Rushowick had no concerns regarding E.’s ability to comprehend questions and found her to be very articulate. Similarly, his impression of V. was that she was a “very bright and articulate child”.

The interviews were held in the afternoon, which Cst. Rushowick considers a preferred time, as children are active and not tired then. There were no issues in holding the children’s attention. [ 16 ] Under cross-examination, Cst. Rushowick confirmed that he establishes two rules when conducting interviews with children. These are that the children will never get into any trouble for talking with him and, secondly, they are only to talk about what they saw with their own eyes and heard with their own ears.

These rules serve as a safeguard, or precautionary measure, to reduce any possibility of outside influence on the information provided, which defence counsel suggested was a concern. When defence counsel raised this with Cst. Rushowick, noting E.’s use of the term “we”, Cst. Rushowick testified that this word choice did not concern him as the “child’s language is their language”. Using the specific examples found on pages 6 and 9 of Exhibit P4, Cst.

Rushowick again confirmed that the wording did not concern him—either at the time or now—and that he did not get the impression that E. had gathered information from other people. [ 17 ] With this background, I turn now to a consideration of E.’s statement, addressing s. 715.1 firstly and then the principled exception to the rule against hearsay. E.’s Statement Criminal Code s 715.1 [ 18 ] The wording of s. 715.1 outlines the five criteria which must be established for the out-of-court statement to be admitted for the truth of its contents.

These are that the witness was under 18 at the time of the alleged offence, the video recording was made within a reasonable time after the alleged offence, the witness describes the acts complained of, the witness adopts the contents of the video recording, and admission of the recording would not interfere with the proper administration of justice. The Crown bears the onus of proving, on the balance of probabilities, the five pre-conditions set out in s. 715.1(1), as noted in R v T.R.J., 2014 BCSC 1611 at para 56 .

See also R v R.A.H. , 2017 PECA 5 at para 25 , 348 CCC (3d) 248 . [ 19 ] E., who was five years old and in kindergarten when the recording was made on February 11, 2020, clearly meets the age requirement set out in s. 715.1 . [ 20 ] As to the second factor, the indictment references February 12, 2020, which was the date of Cindy MacKay’s death. She had been taken to the North Battleford hospital from the family’s home in Meota, Saskatchewan the previous Friday, February 7, 2020 and was thereafter transferred to Royal University Hospital in Saskatoon.

Thus, the interview of E. occurred a mere four days after the time of the alleged fatal administration of a noxious substance and before Cindy MacKay’s death. I find that the requirement that the recording be made within a reasonable time after the alleged offence has been met in this case.

[21] Regarding whether E. describes the acts complained of, the

preamble paragraph of Exhibit P4 references Cst.Rushowick’s understanding that the allegation being investigated was administering a noxious substance. The Crown’s theory of thecase appears to be that Mr. MacKay administered strychnine to Cindy MacKay, in the Gatorade, causing her death. E.’s statement speaksdirectly to this as, for example, she notes at page 5 of Exhibit P4, that “dad just gave her like Gatorade and a straw and then she said ittasted bitter”. This is confirmed again at pages 10 and 11 of Exhibit P4. [22] To ensure proper and open-ended questioning of E., Cst.

Rushowick asked questions about E.’s home andfamily. This led to her volunteering the information regarding Cindy MacKay’s consumption of the Gatorade. Cst. Rushowick, from myreview of Exhibits P4 and P13, was careful not to focus on that particular narrow observation, which allowed E. to provide a narrative inher own words. This narrative is of assistance to the jury, as the trier of fact, in assessing E.’s credibility and the reliability of herstatements.

As such, I do not consider it appropriate to edit E.’s statement in any way. [23] Defence counsel has suggested that the video recording ought not to be admitted because E. could not havewitnessed a number of things she purports to testify to in the recording, presumably based on Mr. MacKay’s statement, which I note mustalso be assessed for credibility and reliability by the jury. However, one must bear in mind the rules Cst.

Rushowick put in place for theinterview, particularly that in relation to truth being what is seen with one’s own eyes and heard with one’s own ears, as he noted to E. atpage 3 of Exhibit P4. As well, from what E. explains, as referenced at pages 10-11 of the transcript, she was in the living room retrievingher tablet when she saw her dad, Mr. MacKay, give her mom the Gatorade. Further, it will be a matter for the jury to assess E.’scredibility and what weight will be given to her testimony.

This is in keeping with the comments of the court in F.(C.C.), at para 46: 46 After the videotaped evidence has been admitted, any questions which arise concerning the circumstances in which the video wasmade, the veracity of the witness’ statements, or the overall reliability of the evidence, will be matters for the trier of fact to consider indetermining how much weight the videotaped statement should be given. [24] The fourth requirement set out in s. 715.1 of the Criminal Code is that the witness adopt the contents of thevideo recording.

This is the most contentious consideration in relation to E.’s statement. [25] Along with the commentary on the purpose of s. 715.1, quoted above at paras. 9 and 10 of this decision, F.(C.C.) provides guidance regarding the approach to adoption. At paras. 40 and 41, the court stated: 40 . . . Adoption is not a term with a static legal meaning which must apply in all circumstances. The strict adoption test for priorinconsistent statements was necessary to ensure a reasonable degree of reliability before allowing the statements to be admitted for thetruth of their contents.

However, s. 715.1 has built-in guarantees of trustworthiness and reliability which eliminate the need forsuch a stringent requirement for adoption.

Further, a lack of present memory or an inability to provide testimony at trial regarding theevents referred to in the videotape as a result of the youthfulness and the emotional state of the complainant increases the need toconsider the videotaped statement. 41 The test set out in Toten [(1993), (ON CA), 83 CCC (3d) 5 (Ont CA)] would prevent a child who has little, or nomemory of the events from “adopting” the video and it would therefore be inadmissible under s. 715.1. However, it is precisely in thissituation that the video is most needed.

Children, particularly younger ones, are prone to forget details of an event with the passage oftime. A videotape made shortly after the event is more likely to be accurate than the child’s viva voce testimony, given months later, attrial. It is quite possible that a young child will have a recollection of going to the police station and making the statement and of herattempt to be truthful at the time yet have no memory of the unpleasant events. This is particularly true where the elapsed time betweenthe initial complaint and the date of trial is lengthy.

If effect is to be given to the aims of s. 715.1 of enhancing the truth-seeking roleof the courts by preserving an early account of the incident and of preventing further injury to vulnerable children as a result oftheir involvement in the criminal process, then the videotape should generally be admitted. [Emphasis added] [26] From the full discussion of adoption in F.(C.C.) at paras 30-44, it may be gleaned that at the voir dire stage, awitness will have adopted a recorded statement where that witness acknowledges she is depicted on the recording and, at the time thestatement was given, was telling the truth.

At para. 44, the court commented further on the reliability of a recorded statement, whichcomments are particularly apropos as E. initially testified that she only “has a little bit of memory” of why the ambulance came to thefamily home on February 7, 2020 and then does not remember being at the hospital in Saskatoon and her memories of that morning are“not really” triggered by watching the video recording: 44 I recognize that the Meddoui [(1990), (AB CA), 61 CCC (3d) 345 (Alta CA)] approach to “adoption” gives rise toanother problem.

Specifically, a witness who cannot remember the events cannot be effectively cross-examined on the contents of his orher statement, and therefore the reliability of his or her testimony cannot be tested in that way. However, it was recognized in R. v. Khan, (SCC), [1990] 2 S.C.R. 531; R. v. Smith, (SCC), [1992] 2 S.C.R. 915, and R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740, that cross-examination is not the only guarantee of reliability. There are several factors present ins. 715.1 which provide the requisite reliability of the videotaped statement. They include: (

a) the requirement that the statement bemade within a reasonable time; (

b) the trier of fact can watch the entire interview, which provides an opportunity to observe thedemeanor, and assess the personality and intelligence of the child; (

c) the requirement that the child attest that she wasattempting to be truthful at the time that the statement was made. As well, the child can be cross-examined at trial as to whether heor she was actually being truthful when the statement was made. These indicia provide enough guarantees of reliability to compensatefor the inability to cross-examine as to the forgotten events. Moreover, where the complainant has no independent memory of the eventsthere is an obvious necessity for the videotaped evidence.

In Meddoui, it was recommended that in such circumstances, the trier of factshould be given a special warning (similar to the one given in Vetrovec v. The Queen, (SCC), [1982] 1 S.C.R. 811) ofthe dangers of convicting based on the videotape alone. In my view, this was sage advice that should be followed. [Emphasis added] [27] E.’s lack of memory is, in the circumstances, understandable. As a young five-year-old, she experienced the

trauma of the death of her mother and was thereafter moved from her family home in Meota to Warman, where she lives withMr. MacKay and his new girlfriend. These are life-changing events for E. At the time the statement was given, E.’s mother, albeithospitalized and very ill, was still alive and E.’s circumstances had not yet been forever altered. However, that was soon to change. Thegrief that no doubt ensued could make all the events surrounding her mother’s hospitalization, including the interview with Cst.Rushowick, become a blur for E. In my view, admission of the video recording pursuant to s. 715.1 is consistent with the purpose forwhich the

section was created.

With the statement’s multiple safeguards, including not only those highlighted above in para. 44 of F.(C.C.) but also that it was recorded and the discussion conducted appropriately by an RCMP constable trained in interviewing children,E.’s observations and recollections at the time are available for assessment by the trier of fact. [28] Although E. testified on the voir dire—and at the preliminary hearing, according to page T18 of Exhibit P5—that she does not recall speaking to the person in the video, the police officer, she testified at the voir dire that she does recognize “thesmall person on the couch”.

E. identified herself, answering “Me” when asked who that person is. Earlier, E. had responded, “I think it’sme”, noting that she recognized the boots. [29] E. also confirmed that when talking to that person in the video recording, she was being honest. When Crowncounsel asked why she thought she was being honest then, E. responded, “Because I didn’t want anybody to get in trouble”. Later E. wasasked if, when she listened to herself in the recording, she thought she was being honest at the time. She responded, “Yeah”. [30] While E. is unable to recall being interviewed by Cst.

Rushowick, she does identify herself in Exhibit P13 andconfirms that she was telling the truth. She even provides the reason for telling the truth, namely that she did not want to get anyone introuble.

While viewing these two elements as adoption may be a slight extension of the approach taken in R v Meddoui (1990), (AB CA), 61 CCC (3d) 345 (Alta CA), leave to appeal quashed for want of jurisdiction [1991] SCCA No 281 (QL), andR v Triolo, 2023 ONCA 221, 424 CCC (3d) 415, which expressly, at para. 64, states it has “nothing to do with” s. 715.1, cases on whichthe defence relies, I am of the view that such is in keeping with the intent and purpose of s. 715.1 and the approach authorized by F.(C.C.).

In this regard, the comments of the court at para. 55 of F.(C.C.) also assist: 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 amanner that will attempt to avoid further injury to children resulting from their participation in the criminal trial process. Thatmust of course be done within the balanced bounds of always ensuring that the accused enjoys the fundamental right to a fair trial.

Thedefinitions and procedures set out in these reasons strive to achieve these aims. [Emphasis added] [31] Therefore, I find that the element of adoption has been met in relation to E.’s video recorded statement. [32] Notably, although adoption was vigorously opposed, it seems that defence counsel anticipated this finding, as hestates, at para. 27 of the brief of law on behalf of the accused. 27. The case law has more often than not considered a videotaped statement to have been adopted if the witness or complainant merelyidentifies his or herself in the video, and attests to the truthfulness of the statement.

In our case, [E.] testified that she could not recallgiving her statement, but this is not likely to prevent a judge from finding she had adopted her statement.

I conclude that E.M.’stestimony at the preliminary inquiry attesting to the truth will likely satisfy the adoption criteria at the first instance. [33] As noted, I required E. to testify at the voir dire and it was my observations of her testimony at that juncture,rather than mere reliance on the preliminary hearing, that gave rise to my determination that she had adopted the statement. [34] The final consideration in s. 715.1 is whether admission of the video recording would interfere with the properadministration of justice.

In this regard, I am mindful of the “balanced bounds” the F.(C.C.) court also referenced in para. 55, quotedabove. On behalf of the defence, it is submitted that I ought to exercise my discretion to exclude the video recording. [35] Firstly, defence submits, E.’s statement is “demonstrably false” as she could not have seen certain things.However, as noted above, E. does indicate that she was in the living room to retrieve her tablet and observed Mr. MacKay providing hermother with the Gatorade, a key component of the act complained of. While Mr.

MacKay may suggest E. was in the porch and not theliving room, it cannot be said at this juncture that E.’s statement is “demonstrably false”. [36] Defence counsel further suggests that we cannot be certain as to what E. is talking about, nor can we be certainthat she was not influenced by other family members. As noted earlier, Cst. Rushowick testified that he did not have the impression thatE.’s responses were influenced by others. She also, from my observations, appeared clear in her answers.

The jury, as the trier of fact,will have the opportunity to observe the recording and assess the nature of the questions and E.’s responses thereto.

What weight, if any,is to be given to her statement will be left to the jury and the jury can be appropriately advised that they must give consideration to thatissue, recognizing the frailties of E.’s memory and the consequent lack of opportunity for defence counsel to cross-examine her on herrecollections of the morning of February 7, 2020. [37] It is further argued on behalf of the defence that E. was not directly victimized and therefore has no concept ofthe magnitude of her words and their potential impact in a murder trial.

Firstly, as discussed earlier, s. 715.1 expressly references awitness and not only a complainant. Thus, any intent to ensure that one who perpetrated a sexual assault against her is called to justice ismissing. Secondly, an absence of understanding the magnitude of her words supports the view that she is testifying without guile. Areview of the observations she makes in Exhibit P13 also demonstrates this. For instance, when asked about the morning in question, shevolunteers the information regarding the Gatorade, as it was just part of what happened that day.

There is an absence of any potentialmalicious intent, confirmed by her own assertion that she was telling the truth and did not want to get anyone in trouble. Whether herobservations have weight for the jury will be for the jurors to decide. [38] In referencing the magnitude of her words, defence counsel also submits that the prejudicial effect of E.’stestimony outweighs the probative value. He suggests that the original purposes of s. 715.1 were for the admission of statements by

complainants in crimes relating to sexual assault or touching for a sexual purpose and, as such, the implication from the provision is thatthe probative value of the child’s statement is high. However, again, s. 715.1 also pertains to witnesses. Further, even in the context ofsex crimes against children, the trier of fact must weigh the evidence, assessing the credibility of the person giving the statement as wellas the reliability of the information. [39] There is, indeed, considerable probative value to E.’s statement and I consider that such outweighs any potentialprejudicial effect to Mr. MacKay.

Defence counsel cites paras. 51 and 52 of F.(C.C.): 51 The minority reasons of L’HeureuxDubé J. in L. (D.O.), [ (SCC), [1993] 4 SCR 419] supra, indicate that, prior to theintroduction of a videotaped statement under s. 715.1, a voir dire must be held in order to review the contents of the tape to ensure thatthe statements within it conform to the rules of evidence. I agree with this conclusion. Both L. (D.O.) and Toten, supra, indicate that, atthis stage, 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 operateunfairly to the accused. Those cases will be relatively rare. (See Toten, at p. 32; R. v. Potvin, (SCC), [1989] 1S.C.R. 525, at p. 548.) L’HeureuxDubé J. in L. (D.O.), at p. 463, suggests that there are a number of factors which should be taken intoaccount in exercising 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 evidence andthat 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 providingan honest and complete account of the complainant’s story, the statement should be admitted unless the trial judge is satisfiedthat it could interfere with the truth-finding process. (See Toten, at pp. 32-33.) [Emphasis added] [40] In this case, the questioning by Cst. Rushowick was open-ended and appropriate for the interview of a child. Asnoted, E. did not have an interest to advance and did not really understand why she was being interviewed.

The quality of the videorecording is certainly acceptable. While there is some information that may be slightly beyond the precise acts complained of, such ispart of E.’s narrative and assists the trier of fact in weighing her evidence, as discussed earlier. As such, as previously noted, I do notconsider editing to be appropriate. As well, there is no visual information which is prejudicial to the accused. [41] Exhibit P13 is the only statement we have from E.

It was made very close to the events she describes and in thethree years since that time, this little girl has encountered life-changing circumstances. [42] Taking into account the factors discussed in F.(C.C.), recognizing the probative value of E.’s statement, andconsidering that such does not operate unfairly to Mr.

MacKay, particularly given that the jury will have to consider the weight, if any, tobe given to her statement in keeping with the direction at para. 44 of F.(C.C.), I do not see a basis on which my discretion to exclude thestatement ought to be exercised. [43] For the reasons outlined in the foregoing, I find that the Crown has established the conditions under s. 715.1 onthe balance of probabilities and I conclude that the video recording of E.’s statement made February 11, 2020 is admissible in its entirety.If, however, I am wrong in that conclusion, I also consider that E.’s statement is admissible by way of the principled exception to the ruleagainst hearsay.

Principled Exception to the Rule Against Hearsay [44] At paras. 20-21 of R v D.M., 2007 NSCA 80, 223 CCC (3d) 193 [D.M.], the Nova Scotia Court of Appealcommented on circumstances where a video recording was not admitted under s. 715.1 of the Criminal Code, noting that it may still beproffered as a principled exception to the rule against hearsay: [20] Even if the video recording is not adopted under s. 715.1(1), the Crown may still offer it under the principled exception to thehearsay rule. In R. v. Burk (1999), (ON CA), 139 C.C.C. (3d) 266 (O.C.A.), Justice Finlayson said:

11 The trial judge's concern about the admissibility of the videotape is understandable given the fact that the conditions in s. 715.1 ofthe Code were not included. However, the videotaped statements in this case, as out-of-court statements offered for their truth, arehearsay. R. v. F. (C.C.) (1997), (SCC), 120 C.C.C. (3d) 225 (S.C.C.). The trial judge was correct that s.715.1 of theCode provides a statutory exception to the admissibility of this particular type of hearsay evidence, but there is also a case law exceptionwhich provides for the admissibility of hearsay evidence if it is necessary and reliable.

The Supreme Court of Canada in R. v.B. (K.G.) (1993), (SCC), 79 C.C.C. (3d) 257, applied the principled approach of the Khan [ (SCC),[1990] 2 SCR 531] decision to the admission of videotaped hearsay evidence. In the context of dealing with prior inconsistent statements,the Court held in K.G.B. that the fact that a prior out-of-court statement was videotaped was an important factor in establishing thereliability criteria for the admission of hearsay evidence.

Lamer C.J., speaking for the Court, said at p. 293: In addition to an oath or solemn affirmation and warning, then, a complete videotape record of the type described above, or one whichduplicates the experience of observing a witness in the court-room to the same extent, is another of the other important indicium ofreliability which will satisfy the principled basis for the admission of hearsay evidence. 12 Accordingly, the trial judge was in error in not admitting the videotape itself as an exhibit and treating it as another exception to thehearsay rule.

However, the failure to do so caused no prejudice to the Crown in this particular case. To the same effect: McWilliams’ Canadian Criminal Evidence, Fourth Edition, vol. 1 (Canada Law Book), ¶ 7: 120.30.20; R. v. M(M.A.) (2001), 1 C.C.C. (3d) 22, (B.C.C.A.), at ¶ 5; R. v. F.(W.J.), (SCC), [1999] 3 S.C.R. 569 at ¶ 22-23, 41, 52, perMcLachlin, J. for the majority. [21] The trial judge erred in law by saying that “[M.M.] is going to have to take

part in adopting that statement, a videotaped statement, or document before it can come before the court according to the appropriate and proper application of the principles of evidence.” Thetrial judge disregarded the second avenue — assessment of the video’s necessity and reliability and possible admission under theprincipled exception.

From the Crown’s position stated at trial it appears that, had the trial judge’s decision mentioned this option, theCrown would have offered the video and the trial judge could then have assessed the video’s necessity and reliability. [45] In D.M., the court ultimately set aside the conviction and ordered a new trial, concerned about the reliance onthe hearsay in the comments made by the child to her parents. The preferred approach, it appears, would have been to submit the videorecording, as noted at para. 33: [33] M.M. made her video recording the day after the event.

A contemporaneous video recording of the complainant has been describedas “probably the best recollection of the event that will be of inestimable assistance in ascertaining the truth” - R. v. C.C.F., (SCC), [1997] 3 S.C.R. 1183, at ¶ 21, per Cory, J., and see also ¶ 41-44. Whether or not M.M. would adopt it in court, it is clear fromK.A.’s testimony (above ¶ 5) that M.M. did make a video recorded statement.

Even if it is inadmissible under s. 715.1(1), the videorecording may be admitted at common law through the testimony of the witnessing social worker or RCMP officer, if the trial judgeconcludes it is necessary and reliable. If admitted, the video may be of significant assistance to the trial judge’s search for the truth. Thevideo is the only potentially observable statement by a witness with personal knowledge, M.M..

The parents’ evidence, on the otherhand, was second hand from the child, their testimony was long after the event, and in some respects their separate testimonyinconsistently related what M.M. had said in their joint presence.

Juxtaposing the passages from D.(G.N.) [(1993), (ON CA), 81 CCC (3d) 65 (Ont CA)], Khelawon [2006 SCC 57, [2006] 2 SCR 787] and Couture [2007 SCC 28] quoted earlier, thepossible significance of MM’s video is evident. [Emphasis added] [46] The leading case on the principled exception to the rule against hearsay is R v Bradshaw, 2017 SCC 35, [2017]1 SCR 865 [Bradshaw], which dealt with a video recording of a re-enactment of a murder. Necessity was demonstrated in Bradshaw asthe co-accused refused to testify at trial against Mr. Bradshaw.

Consideration was then given to whether the hearsay statement, therecorded re-enactment, met the test of threshold reliability. [47] In the case at hand, necessity is established in that E. has no recollection now of the events of February 7, 2020and does not recall her interview with Cst. Rushowick. This is similar to the situation in R v Dauphinais, 2021 ABQB 29 at paras 27-28[Dauphinais], cited by defence counsel. It also fits within the scenarios described at para. 34 of R v Nataucappo, 2015 SKCA 28,322 CCC (3d) 69 [Nataucappo], cited by the Crown.

Thus, I must determine whether threshold reliability has been met, as noted atparas. 26 and 27 of Bradshaw: [26] To determine whether a hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability. Thresholdreliability is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”(Khelawon [2006 SCC 57, [2006] 2 SCR 787], at para. 49).

These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact . . . [27] The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutesfor testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statementis inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah [2013 SCC 41, [2013] 2 SCR 720], atpara. 30). [48] With respect to procedural reliability, E.’s statement was given in circumstances which have inherent indicia oftrustworthiness.

The statement was given to a police officer, the form of questioning was appropriate for a child witness and was notleading, and the statement was taken within days of the observations she recounts. E. has not recanted her recollections. She merely doesnot remember the events of February 7, 2020 or being interviewed. She does, however, recognize herself in the video and has confirmedthat she would have been telling the truth. [49] These circumstances also tie into the substantive reliability of the statement, as noted at paras. 30-32 ofBradshaw:

[30] A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy(Youvarajah, at para. 30; R. v. Smith, (SCC), [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement isinherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) thatcorroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v.

Blackman, 2008 SCC 37, [2008] 2 S.C.R.298, at para. 55). [31] While the standard for substantive reliability is high, guarantee “as the word is used in the phrase ‘circumstantial guarantee oftrustworthiness’, does not require that reliability be established with absolute certainty” (Smith, at p. 930). Rather, the trial judge must besatisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to theprocess” (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court’sjurisprudence.

Substantive reliability is established when the statement “is made under circumstances which substantially negate thepossibility that the declarant was untruthful or mistaken” (Smith, at p. 933); “under such circumstances that even a sceptical cautionwould look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is“unlikely to change under cross-examination” (Khelawon, at para. 107; Smith, at p. 937); when “there is no real concern about whetherthe statement is true or not because of the circumstances in which it came about” (Khelawon, at para. 62); when the only likelyexplanation is that the statement is true (U. (F.J.) [ (SCC), [1995] 3 SCR 764], at para. 40). [32] These two approaches to establishing threshold reliability may work in tandem.

Procedural reliability and substantivereliability are not mutually exclusive (Khelawon, at para. 65) and “factors relevant to one can complement the other” (Couture, atpara. 80). That said, the threshold reliability standard always remains high — the statement must be sufficiently reliable to overcome thespecific hearsay dangers it presents (Khelawon, at para. 49).

For example, in U. (F.J.), where the Court drew on elements of substantiveand procedural reliability to justify the admission of a hearsay statement, both cross-examination of the recanting witness andcorroborative evidence were required to meet threshold reliability, though neither on its own would have sufficed (see also Blackman[2008 SCC 37, [2008] 2 SCR 298], at paras. 37-52). I know of no other example from this Court’s jurisprudence of substantive andprocedural reliability complementing each other to justify the admission of a hearsay statement.

Great care must be taken to ensure thatthis combined approach does not lead to the admission of statements despite insufficient procedural safeguards and guarantees of inherenttrustworthiness to overcome the hearsay dangers. [Emphasis added] [50] Although Mr. MacKay in his statements to the RCMP officers suggests that E. was in the porch area and not theliving room, he does corroborate E.’s statement that he gave Gatorade to Cindy MacKay.

Just by way of example, I note pages 46-47 ofExhibit P2. [51] In Dauphinais, cited by the defence, the court noted, at para. 46, that the child interviewee was inconsistent onmatters of relevant evidence. This is not the case with E. She does not waver from her observation that her dad gave her mom the cup ofGatorade. [52] On behalf of the Crown, R v G.G.F., 2015 ABPC 69 at para 37, was cited as providing some factors forconsidering reliability: [37] At this stage the determination to be made is whether the threshold degree of reliability required for admissibility is met.

Ultimatereliability is a separate determination.

In assessing threshold reliability, the Court may look at a variety of factors including: • The circumstances in which the statement was made; • Whether there are adequate substitutes for traditional safeguards; • Whether the complainant has a motive to lie; • The relationship between the complainant and the Accused; • The relationship between the complainant and the recipient of the statement; • The possibility that the complainant is mistaken; • The complainant’s perception or memory of events; • The complainant’s state of mind at the time that the statement was made; • The complainant’s use of language; • The content of the statement; • Whether the statement was contrary to the complainant’s interest; and • The statement’s similarity to admitted evidence and supporting and contradictory evidence. [53] The circumstances of E.’s statement have been noted.

It was made to Cst. Rushowick and was video recorded.E. has confirmed she was telling the truth and there is no indication that she had a motivation to lie. From a review of Exhibit P13, and asconfirmed by Cst. Rushowick in his testimony, E. did not appear tired. Nor did she appear anxious. Her language was that of a five-year-old and her responses appeared spontaneous. [54] Earlier, in my assessment of s. 715.1 of the Criminal Code, I considered that the probative value of E.’sstatement is not outweighed by any potential prejudicial effect to Mr. MacKay. Those comments apply equally in the context of the

question of whether the statement is admissible as a principled exception to the rule against hearsay. [ 55 ] Given the presence of necessity and the several indicia of the inherent trustworthiness of the statement, and taking into account the interrelated nature of procedural and substantive reliability, I find that threshold reliability has been met in relation to E.’s statement and it is admissible at trial. The ultimate use of the statement will be left to the jury as the trier of fact.

V.’s Statement Criminal Code s 715.1 [ 56 ] As previously noted, there are five pre-conditions set out in s. 715.1 of the Criminal Code which must be established, on the balance of probabilities, for the out-of-court statement to be admitted for the truth of its contents. As was the case with E., V. fits within the age requirement of s. 715.1 . She was eight years old and in grade three when the recorded interview was conducted on February 11, 2020. [ 57 ] Like her sister, E., V. met with Cst. Rushowick just four days following Cindy MacKay’s hospitalization and the day before her death.

Thus, I find that the recording was made within a reasonable time after the alleged offence. [ 58 ] As to the requirement of adoption, which is the fourth condition in s. 715.1 , V. identified herself in the video and testified that she recalled the interviewer was a police officer. She confirmed that she remembers speaking to a police officer and that she tried to be honest. As such, adoption would be established. [ 59 ] However, regarding the third requirement, that the witness describes the act complained of, I do not consider that this has been met in relation to V.’s statement.

In response to my questions during closing argument, Crown counsel frankly acknowledged that V.’s statement would provide a “snapshot of that morning”, the “mood of the house”, and would assist in “painting a picture of the home life” in the context of what he acknowledges is largely a circumstantial case against the accused. [ 60 ] V.’s statement does reference, as reflected at pages 21-25 of Exhibit P15, that Mr. MacKay instructed the MacKay children not to touch water bottles near the sink.

However, this is not, in my view, sufficiently related to the act complained of to satisfy s. 715.1 of the Criminal Code nor does it have high probative value. [ 61 ] As the condition requiring that the statement pertain to the act complained of has not been met in V.’s case, it is unnecessary for me to consider whether I would exercise discretion to exclude the statement. V.’s statement is not admissible pursuant to s. 715.1 of the Criminal Code .

Principled Exception to the Rule Against Hearsay [ 62 ] Turning to the question of whether V.’s statement should be admitted under the common law, defence counsel noted initially that necessity has not been established as the statement would provide only peripheral evidence. That, however, is not the test. Necessity is present in this case, considering the scenarios noted in both Dauphinais and Nataucappo . [ 63 ] As well, there are considerable indicia of trustworthiness given the circumstances of the statement having been given to a police officer.

However, the evidence is peripheral, as Crown counsel acknowledged, and, although I am uncertain of what, if any, prejudicial effect there may be for the accused, I do not consider that the Crown has met its onus in demonstrating that the probative value outweighs the prejudicial value. [ 64 ] Therefore, I find that V.’s statement to Cst. Rushowick on February 11, 2020 is not admissible. CONCLUSION [ 65 ] For the reasons outlined in the foregoing, E.’s statement of February 11, 2020 is admissible at trial, in its entirety, while V.’s statement is not admissible. J. B.R. HILDEBRANDT