R v RV, 2024 MBPC 12

CITATION: R v RV , 2024 MBPC 12 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN His Majesty the King ) ) V. Hebert for the Crown – and – ) ) R. V. (Accused) ) ) R. Wolson and D. Wolson for the Accused ) ) ) ) Reasons for Decision Delivered: January 25, 2024 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] The Crown has applied pursuant to Criminal Code

section 715.1 , to have the videotaped police statement of a child sexual abuse complainant admitted into evidence. Defence is opposed to the admission of the videotaped statement on the basis that it was not made “within a reasonable time after the alleged offence” as required by

section 715.1 , and that it lacks any detail, therefore demonstrating that the passage of time between the offences complained of and the making of the videotape was too long for the child to remember what happened. A voir dire occurred in which the videotape was played, the child was called as a witness and the parties provided oral argument. The other statutory requirements of

section 715.1 were met and are not at issue. The child was under 18 years of age at the time of the alleged offences, and she adopted the contents of the videotape while testifying at the voir dire . [ 2 ] This is my decision with respect to the admissibility of the videotaped statement. The Evidence at the Voir Dire [ 3 ] I have had an opportunity to view the videotaped statement, the accompanying transcript, and to observe and consider the evidence of SK. [ 4 ] SK is a quiet, small-statured, immature-appearing 14-year-old. She was between the ages of 8 and 11 at the time of the alleged offences.

She provided her videotaped statement to Detective Sergeant Neufeld of the Winnipeg Police Service on April 21, 2022, when she was 12 years old. [ 5 ] The allegations are that RV, who had been her mother’s boyfriend for a seven-year period, would touch her. He would put his hands under her pants and shirt. The first time it happened she was eight years old, and “didn’t really understand that stuff”. That first time, he slowly put his hand up her shirt. She added, “That’s all I remember.” This was at the family’s old house, and she provided a street address on [REDACTED] (W Street).

She testified that everyone was home when it happened. She believed that one of her sisters could see what happened, because her sister was in her bedroom, and you can see the living room from that bedroom. [ 6 ] The next incident happened a couple of weeks later at the accused’s house. The accused was sitting next to her on a small couch. She said she did not remember what happened and agreed with the police interviewer that it is hard to talk about. She reiterated after this acknowledgement, when asked again by the interviewer, Interviewer . . . what do you remember happening that second time?

SK I don’t know. [ 7 ] The officer then asked her to tell her more about the accused putting his hand down her pants. SK said she thought she was nine years old when that happened. She was in her bedroom at the old house on [REDACTED] (B Street), which is a different address than she provided for what happened when she was eight years old.

[ 8 ] The officer asked her what happened. The exchange is as follows: SK I don’t remember a lot. Interviewer Okay. Well just tell me what you do remember. You know, um, what do you remember happening? Did something happen when you were 9? SK I don’t know. [ 9 ] The officer tried a different tact, asking SK to tell her about the time that stands out the most in her mind, the time she remembers the most. SK said it was when she was 11 and the family was staying at the accused’s house because they were having plumbing problems in their house. She had to sleep in the living room.

The exchange went as follows: SK And then . . I’m trying to remember. Interviewer . . . take your time. You were sleeping in the living room and then what? SK I don’t remember Interviewer Okay. You said the time that stands out the most in your mind was when you’re 11. Do you remember a little bit about that? What did you talk to your sister about? What did you tell her? SK Told her the exact same thing. Interviewer Okay. Do, can you tell me what you told her? SK I just told you. Interviewer Okay. Can you just tell me again one more time so I understand what you told your sister?

SK I told you the exact same thing. [ 10 ] She told the officer they stayed at the accused’s house, and something happened more than one time. The interviewer asked her to talk about the last time she remembered something happening. SK answered, “I don’t remember.” [ 11 ] The officer returned to talk about something SK had said earlier, about the accused’s hand going under her pants, and asked where on her body did his hands touch. SK gestured to her groin area.

She was asked if she had a name for that area and she shook her head negatively. [ 12 ] She was later asked if she could remember what the accused was wearing or what she was wearing when the accused put his hand down her pants or under her shirt. She could not. She was able to answer that she was wearing underwear when he put his hand down her pants, and it was over her underwear. She could not say what his hand was doing.

She could not say in which house this occurred, answering, “I don’t remember a lot.” [ 13 ] She was able to draw two circles on a diagram of where the accused had touched her body, on the chest area and groin area. [ 14 ] She was finally asked if there was anything else she wanted to tell the interviewer and she answered, “No. I shared everything I know.” [ 15 ] The details are scant. [ 16 ] At this stage, however, I am concerned only with the threshold admissibility of the videotape.

My analysis at this stage of the proceedings is to determine only whether the videotape was made within a reasonable time and whether the complainant has described the acts complained of. [ 17 ] The approach taken to determine whether the videotape was made within a reasonable time is a contextual one, given the unique characteristics of child sexual abuse offences.

The Circumstances [ 18 ] The accused is charged with two counts of sexual assault and two counts of sexual interference, both offences alleged to have occurred between the dates of November 13, 2017 and November 13, 2019, and between the dates of July 1 and August 31, 2020. [ 19 ] The offences were alleged to have occurred when SK was between the ages of 8 and 11. She first disclosed the offences to her sister. I do not know when that occurred. In the voir dire , she was asked by the Crown why it took so long to tell anyone what occurred. She answered that she did not know.

She was asked if she could have told her mother and she answered, “No.” She was asked why, and she shook her head. She was asked again why she could not tell her mother. SK again shook her head. She was asked if she has a good relationship with her mother and she answered, “No.” [ 20 ] SK testified that the time she remembered the most or that stood out for her the most occurred when she was 11. She did not provide a description of that, stating only that she told her sister and the officer the same thing. The first act complained of occurred when SK was eight years old.

The videotaped statement was given on April 21, 2022, when SK was 12. She had turned 12 five months earlier on November 13, 2021. The Legal Context

[21]

Section 715.1 states as follows: In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence isalleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim orwitness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of thevideo recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interferewith the proper administration of justice. [Emphasis added.] [22] The test for admissibility of a videotaped statement pursuant to

section 715.1 is four-part: - Was the witness under the age of 18 at the time of the offence? - Was the videotaped statement made within a reasonable time of the alleged offence? - Did the witness describe the acts complained of in the videotape? - Did the witness adopt the contents of the videotape while testifying? [23] The standard of proof is on a balance of probabilities. [24] The jurisprudence reflects that the purpose of

section 715.1 is to address under reporting and low conviction rates of sexualcrimes against children, the treatment of children in the criminal justice system, and to obtain the best evidence of child sexual abusecomplaints. [25] Chief Justice Lamer wrote the majority judgement in R v L(DO), (SCC), [1993] 4 SCR 419, stating that thepurpose of the provision was as follows (at para 1): I have read the reasons of Madame Justice L'Heureux-Dubé and concur in her result. It is my view that s. 715.1 of the Criminal Code,R.S.C., 1985, c.

C-46, is a response to the dominance and power which adults, by virtue of their age, have over children. Accordingly, s.715.1 is designed to accommodate the needs and to safeguard the interests of young victims of various forms of sexual abuse,irrespective of their sex.

By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makesparticipation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in thepreservation of evidence and the discovery of truth. [26] In her judgement, Justice L’Heureux-Dubé set out the context in which

section 715.1 exists. A

summary of the points shemakes are as follows: - 75 percent of offenders are someone the child knows, trusts and loves. - This increases the pain the child experiences. - The abuse often continues for years. - Children often do not disclose for long periods of time for fear of telling. - The disclosure of the child often causes a rift in the extended family. - 80 percent of sex crimes are committed against children and young people under the age of 20 years. - One in four girls and one in ten boys will be sexually victimized before reaching the age of 18. - 98.8 percent of perpetrators are male. - The offence perpetuates sexual objectification of women and children and the highly gendered crime of sexual offending againstwomen and girls by men. (See paras 28-31; 77) [27] The Supreme Court of Canada upheld the constitutionality of

section 715.1 in L(DO), which had been challenged on the basisthat it contravened the right to a fair trial and making full answer and defence, protected by sections 7 and 11(

d) of the Charter. [28]

Section 715.1 has subsequently been amended to allow for it to be used for all child witnesses who were under 18 years of ageat the time of the offence and in all types of prosecutions, not only in child sexual abuse prosecutions. The other amendment to section715.1 includes a discretion to exclude the videotaped evidence if the judge believes that admission of the videotaped evidence “wouldinterfere with the proper administration of justice”. “Within a Reasonable Time of the Alleged Offence” and “Describes the Acts Complained of” [29]

Section 715.1 does not establish a particular time frame in which the videotaped statement to police must be made, mainly in

recognition of the delays in reporting in many cases of child abuse. A determination of whether the elapsed time between the last occurrence of alleged abuse and the making of the videotaped statement is a reasonable period of time will depend on the circumstances in any particular case. [ 30 ] I have no direct evidence about reasons for the delay in this case.

I can infer from Crown counsel’s questions to SK that there was a delay in disclosing the allegations, but I do not know the length of the delay nor the reason, other than that she could not tell her mother and that she does not have a good relationship with her mother. [ 31 ] It is well-settled in law that there can be significant delays in disclosure by children who have been sexually abused ( See L(DO) at paras 29 and 77 ; R v PS , 2019 ONCA 637 at para 21 ; R v WEB , 2012 MBCA 23 at para 20 ). The circumstances of this case are like many cases where children have not disclosed the sexual abuse against them.

There is no direct evidence of any of these factors in this case, but a delay in the disclosure of abuse in these circumstances would be consistent with what we know from the jurisprudence: - The accused was the boyfriend of the child’s mother. - The child appears to be very shy and uncomfortable providing any detail about the offences complained of. - She did not think she could tell her mother at the time she gave her statement and does not have a good relationship with her mother; she has now been apprehended and is in the care of child protection authorities. - She did not fully appreciate or understand what was occurring when she was eight. [ 32 ] The other consideration in determining whether the videotape was made within a reasonable time is whether the gap has had an impact on the child’s ability to recall the events complained of.

It is recognized that the memory function of very young children is not well-developed, their memories can fade more quickly, and can be unreliable. Thus, to preserve the narrative of the impugned event accurately, it is important that the child’s memory is as accurate as can be expected, and not overly affected by the passage of time. In L(DO) , Justice L’Heureux-Dubé cited an

article indicating that although children may have clear and accurate memories at the time of the occurrence, studies illustrate that their memories may fade faster than the memories of adults. Accordingly, it is advisable to have the statement taken as close to the events as is reasonable (see paras 78–79). [ 33 ] As discussed above, SK provided almost no detail in her videotaped statement, to the extent that I had to consider whether she was able to “describe the act complained of”.

Before considering whether the lack of detail was due to her lack of memory about what occurred, I want to turn to whether it was sufficient to meet the low threshold required in the section, that it contained a “[description of] the acts complained of”. [ 34 ] Defence pointed out that the lack of detail in this case should be compared to other cases filed where there was significant detail ( see R v JM , 2022 MBCA 25 ; R v KDM , 2021 MBQB 2 ; R v TA , 2020 MBPC 59 ).

I agree that the information in this case is extremely thin, but I have found there is sufficient description to satisfy the threshold at this stage. SK was able to state that the first time the accused touched her he “slowly” put his hand up her shirt and touched her in the chest area; she was eight years old. That occurred in the living room of the house on W Street. Everyone was in the house at the time, and she believed one of her sisters was in her bedroom which has a view to the living room.

The second incident took place about two weeks later at the accused’s house while she and the accused were sitting next to each other on the small couch, but there is no description of what occurred. When she was nine years old, the accused put his hand down her pants in the groin area; she was wearing underwear, and the touching was over her underwear. This happened in her bedroom at the old house on B Street.

The incident that stands out most in her mind occurred when she was 11 years old when her family was staying at the accused’s house because they had plumbing issues at their house, and she was sleeping in the living room. She provided no detail, repeating only several times that she told her sister and the police officer the same thing. [ 35 ] At the threshold stage of determining admissibility of the videotaped statement, the Court needs to be satisfied only that the passage of time has not affected the child’s memory to the extent that the information in the videotape is patently unreliable.

The defence relied on the cases of R v JM , 2016 ONSC 535 and R v AGB , 2011 ABPC 260 , where Courts ruled the videotapes inadmissible in part because of unreasonable delay in making the statement. In AGB , the trial judge found that the passage of time was “likely to have adversely affected” the child’s memory, as borne out by the brevity of her statement and her inability to remember collateral facts (at para 23). [ 36 ] I am not satisfied that the lack of detail provided by SK was because of the passage of time affecting her memory. I say this even though she stated several times that she did not remember.

My assessment of the child’s manner of answering questions and her demeanor on the witness stand was that she was extremely uncomfortable talking about these events. [ 37 ] At this threshold stage, I am satisfied that the bare minimum requirements are met. I am satisfied on a balance of probabilities that there is some description of some of the acts complained of, and any reluctance to provide additional information was not because SK forgot the details, but rather because she was too uncomfortable to tell a police officer or a court about them.

This is unfortunately a common reaction of many sexual abuse victims who are too frightened or embarrassed to talk about traumatic experiences. [ 38 ] There is no period of elapsed time within which the videotape of a child sexual abuse victim’s statement must be made to make it “reasonable.” The approach must be contextual and sensible: In the end, what constitutes a reasonable time requires a sensible approach. If a sensible approach, in my view, is not taken, it would defeat the very purpose for the enactment of the legislation.

One has to remember that the statement's admissibility is different from the consideration of the ultimate weight and reliability. The weight and reliability cannot be determined until the court undertakes an assessment of all of the evidence after all witnesses have testified and all submissions have been made. ( PS , at para 29). [ 39 ] I find that in the circumstances of this case, the videotape was made within a reasonable time.

Residual Discretion to Exclude the Videotaped Statement [40] After determining that the videotape was made within a reasonable time, the judge may exercise their discretion to exclude thevideotape, if admitting it would interfere with the proper administration of justice.

This is before determining the weight to be given tovarious parts of the statement or all of it, after an analysis of the credibility of the witness and overall reliability of her evidence (see R vCCF, (SCC), [1997] 3 S.C.R. 1183 at para 46). [41] Because the evidence in this case is not clear and detailed, making even the threshold determination a “close call”, I have alsoconsidered whether I should exercise my residual discretion to exclude the videotaped statement.

Although the defence did not directlyargue that I should exclude the videotape on this basis, they raised several of the issues that are to be considered at this stage. [42] The legislation at the time L(DO) was decided did not contain the provision that now allows a judge the discretion to exclude avideotaped statement under

section 715.1 on the basis that its admission would interfere with the proper administration of justice.Nonetheless, Justice L’Heureux-Dubé suggested a number of factors that should be taken into account in exercising such a discretion (atpara 65): (

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. [43] In the subsequent Supreme Court decision of CCF, Justice Cory for the Court stated (at para 51): Both L. (D.O.) and Toten, [ (ON CA), [1993] O.J. No. 1495], indicate that, at this stage, the trial judge may exercisehis or her discretion to exclude the videotaped statement if prejudice from its admission would outweigh its probative value.

Thediscretion to exclude the videotape is limited to those cases where its admission would operate unfairly to the accused.

Those cases willbe relatively rare. [44] None of the factors listed by Justice L’Heureux-Dubé are present or relevant in this case, other than the passage of time and theability of the child to relate the events described which I have already determined are not bars to admitting the videotaped statement intoevidence at this stage. [45] In conclusion, although this is a “close call”, I find that the videotaped statement was made within a reasonable time of thealleged offences, it contains a description of the acts complained of and that admitting it will not interfere with the proper administrationof justice.

The videotape is admitted into evidence. Original signed by Judge Devine CYNTHIA A. DEVINE, P.J.