)) HER MAJESTY THE QUEEN Respondent – v. –, 2010 ONSC 6733

CITATION : R. v. Ferreira, 2010 ONSC 6733 COURT FILE NO.: 187/09 DATE: 20101208 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Respondent – and – MANUEL BENMIRO FERREIRA Appellant )) )) )) )) ) ) Carolyn Fineberg , for the Crown Mark Halfyard , for the Appellant HEARD: December 3, 2010 LEDERER J. : INTRODUCTION [ 1 ] In this case, a child complained that she had been inappropriately touched by the accused, who was a friend of her grandmother. The police recorded her statement on videotape.

The trial judge allowed the video statement to be entered after the child had adopted its contents as part of her evidence provided at trial. In this appeal, the court is asked to consider whether the pre-conditions necessary for the admission of the statement were properly considered and dealt with by the trial judge. [ 2 ] We are cognizant of the difficulties associated with asking children to testify in court. We recognize that the memory of a child may, in the long-term, be less reliable than that of an adult.

Section 715.1(1) of the Criminal Code is an effort to respond to these concerns. It states: 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. [ 3 ] This

section allows for the admission of a video statement, as part of the evidence of the child, subject to certain pre- conditions. [ 4 ] This is important. While we seek to protect the child, we cannot do so at the expense of the rights of the accused. It would be wrong to impinge on the right to a fair trial.

We must adhere to the presumption of innocence and the requirement that guilt be proven beyond a reasonable doubt. [ 5 ] The evidence should reflect a reliable recollection of the child. [ 6 ] The pre-conditions required to be met are in place to ensure we do not too easily stray from one concern into the other. FACTS [ 7 ] On April 30, 2008, the complainant, a girl, told her school vice-principal that the appellant had inappropriately touched her. The vice-principal contacted officials at the Catholic Children’s Aid Society. Later the same day, the girl was interviewed by the police.

At trial, the evidence-in-chief of the girl was produced by way of the video statement that had been taken of the interview. For reasons that were never fully explained, only the first thirty minutes were successfully recorded. It was this recording that was relied on at trial. ANALYSIS [ 8 ] It stands to reason that, before a video statement is entered into evidence, some inquiry should be made as to whether any pre-conditions to its admission have been accounted for. This requires that a voir dire be undertaken:

Wherever evidence is tendered for admission under s. 715.1 of the Code, a formal voir dire must be held to determine whether therequirements of the

section are met and to ensure that the videotape conforms with the rules of evidence. . . . (R. v. C.C.F., (SCC), [1997] S.C.J. No. 89, [1997] 3 S.C.R. 1183, 120 C.C.C. (3d) 225 at para 54) [9] In this case, it is conceded that there was no voir dire. [10] The Crown submitted that this is not the end of the matter. Not unreasonably, she said it was necessary to read the sentencewhich follows immediately after the quotation to which I have just referred. It says: …However, no substantial wrong resulted from Lane J.'s failure to hold a voir dire.

Since S.D. duly adopted the contents of the videotapeand there is no evidence suggesting that Lane J. would or should have exercised her residual discretion to exclude the evidence becauseof unfairly prejudicial effects its admission would have on the respondent, the videotaped statement was properly admitted. (R. v. C.C.F., supra, at para. 54) [11] It was the submission of the Crown that the same logic should apply to the case I am asked to deal with. [12] I do not agree. [13] In R. v.

C.C.F., supra, there was no suggestion that the pre-conditions required to be acted on before the videotape of astatement could be admitted, pursuant to s. 715.1(1) of the Criminal Code, had not been complied with. Such is not the case here. [14] What are the pre-conditions? [15] They are outlined in R. v. C.C.F., supra, as follows: …There are several factors present in s. 715.1 which provide the requisite reliability of the videotaped statement. They include: (

a) therequirement that the statement be made within a reasonable time; (

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

c) the requirement that the child attest thatshe was attempting to be truthful at the time that the statement was made. … (R. v. C.C.C., supra, at para. 44) [16] Compliance with the third of the three pre-conditions is not contested. It was acknowledged by counsel for the accused (theappellant) that the child, during the course of her evidence, did adopt the contents of the videotape. She was asked and she said: Q. Okay. So you saw the video, right? A. Yeah. Q. Okay. And were those answers that you gave true when you gave those answers? A. Yes. Q. And are they still true now? A.

Yes. (Proceedings at Trial, May 25, 2009 at p. 25) [17] This stands as an attestation that she was attempting to be truthful at the time the statement was made. [18] The problem is with the first and second of the three pre-conditions referred to. [19] Counsel for the accused (the appellant) submitted that the evidence demonstrated that the videotaped statement was not madewithin a reasonable time after the alleged offence has been committed (see: para. [15], above).

The evidence which was said todemonstrate the commission of the offence included the inappropriate touching of the child, at various times, during the years 2004 to2006. These were followed by an incident in which the accused either kissed or attempted to kiss the child, sometime during 2008. [20] It is the view of counsel for the accused (the appellant) that the length of time, beginning in 2004, and going on to 2006, to thetaking of the statement (April 30, 2008) was too long. The statement was not made within a reasonable time. [21] The Crown does not agree.

She said that these events were all part of a continuum joined together by the similarity of theevents and the identity of the parties involved. The time involved should be measured from the time of the last incident whichcontributed to the ongoing offence. The Crown relied on the following quotation: ... Where, as here, the alleged offence involves ongoing sexual abuse over a prolonged period of time, the operative date must be the lastincident of abuse. In this case, the alleged offence of sexual assault began in 1993, but the offence alleged in count one continued untilearly February 1998.

The ‘alleged offence’ was ongoing less than three weeks before the videotape was made. (R. v. Archer, (ON CA), [2005] O.J. No. 4348 (Ont. C. A.) at para. 74) [22] Counsel for the accused (the appellant) took the position that R .v. Archer, supra, has no application to this case. There is nospecificity in the evidence provided by the child as to when any particular event occurred and too large a gap between 2006 in 2008 to

conclude that these events are part of a continuum. Counsel pointed out that in R. v. Archer, supra, the events, said to comprise theoffence, were constant and continuous over a five-year period. [23] Counsel for the accused (the appellant) went on to say that the evidence of the child with respect to the last incident (the kissor attempted kiss) was inconsistent. In the statement to the police, she described it as an attempt to kiss her on the mouth while she wasreading.

At trial, she said that the kiss on the mouth was not merely an attempt, but took place as she was saying goodbye to the accusedand her grandmother. [24] From the perspective of the accused (the appellant), this raised some uncertainty as to the reliability of this evidence. [25] A determination of whether or not the videotaped statement was made within a reasonable time is a matter to be decided on acase-by-case basis: I accept the position of the Crown, however, that there is no hard and fast rule – the legislature has not imposed a time limit.

I mustconsider the totally [sic] of the circumstances – assessment of reasonableness requires a case-by-case analysis. (R. v. S.G., (ON SC), [2007] O.J. No. 2203 at para. 21) [26] The case law suggests that, depending on the circumstances, a wide range of time-frames may be considered to beunreasonable. In R. v. Lucas (2001), 2001 BCCA 361 , 155 C.C.C. (3d) 338 (B.C.C.A.), the court excluded a statement that wasmade forty-five months after the alleged offence. In R. v. S.P. (2000), (ON CA), 144 C.C.C. (3d) 120 (Ont. C.A.), thecourt ruled that a two-year delay was "borderline" but not unreasonable. In R. v.

Laramee (1991), (MB CA), 65C.C.C. (3d) 465 (Man. C.A.), the court found that just over a year of delay from the alleged offence was unreasonable. [27] I do not make any finding as to whether the time between the incidents which contribute to the allegation of the offence andthe making of the videotaped statement was reasonable. I say only that it is a matter which should have been determined by the trialjudge as part of a voir dire. Unlike R. v.

C.C.F., supra, there is evidence on which the trial judge could, depending on his understandingof that evidence, have used his residual discretion to exclude it (see: para. [10], above). [28] To me, this is exacerbated by the concession made by the Crown that, in any event, the trial judge's appreciation of theappropriate test was incorrect. She agreed that he appeared to accept that the time-frame involved was the period from the reporting ofthe offence to the taking of the statement.

The proper time period was from the alleged commission of the offence to the time thestatement was taken. [29] It should be said that, in the end, the trial judge did not consider the amount of time that passed to be of any concern. He said: So I mean, the issue of when the offence took place, when it's alleged to have taken place, that's going to remain the same whether theevidence goes in by video or viva voce… so I don't think it makes any difference… so I don't think I should make an order that the Crownis not entitled to use it.

I mean, unless she doesn't qualify… (Proceedings at Trial, May 25, 2009 at pp. 12-13) [30] This underscores the need for a voir dire in which the evidence is considered and the proper test applied. [31] The second of the three pre-conditions requires that the trier of fact have the ability to watch the entire interview. [32] I observe that, unlike the requirement that the statement be taken within a reasonable period of time, there is nothing specificin s. 715.1 of the Criminal Code that mandates this pre-condition.

It stands to reason that a failure to have present all that a child saidmay cause the court to be concerned that the admission of what is available could “interfere with the proper administration of justice”(see: para. [2], above). [33] A videotape provides an opportunity to observe the demeanour, and assess the personality and intelligence of the child (see:para. [15], above). As I have already noted, for whatever reason, only the first thirty minutes of the interview were successfully tapedand available to the judge. The Crown submitted that this was not a critical or fatal difficulty.

The notes of a police officer, who had beenin attendance, and had prepared them in respect of the entire interview, could be read to the court. [34] To me, the problem with this is self-evident. [35] The notes may (or may not) provide a complete rendition of what was said, but it is unlikely that they would assist indemonstrating the demeanour of the witness throughout the interview. They do not allow for an evaluation of the personality andintelligence of the witness that is based on the complete interview. The fact remains that demeanour may change and evolve through thetime a witness is on the stand.

Our confidence in the judge's understanding of the intelligence of the witness is increased when what wassaid and how it was presented are both part of the analysis. [36] These things may be lost when the videotape is incomplete. [37] As with the first pre-condition (requiring that the statement be taken within a reasonable time of the alleged commission of theoffence), I make no determination as to whether we can be satisfied with the evidence that would be provided through just part of thestatement.

I say only that the failure to have the full interview on the videotape confirms the need for a voir dire. [38] The Crown submitted that, in the circumstances of this case, I need not go this far. She pointed to the “curative proviso”provided for in s. 686 (1)(a)(ii) and s. 686 (1)(b)(iii) of the Criminal Code. If the judgment of the trial court should be set aside on theground that there was a wrong decision on a question of law, the court hearing the appeal may, nonetheless, dismiss it where it is of theopinion that no substantial wrong or miscarriage of justice has occurred.

The limits of this have been outlined in the following way:

… There are essentially two classes of error which have been identified by reviewing courts and which have led to a proper application ofthe proviso. The first category is that of so-called “harmless errors”, or errors of a minor nature having no impact on the verdict. Thesecond category encompasses serious errors which would justify a new trial, but for the fact that the evidence adduced was seen as sooverwhelming that the reviewing court concluded that there was no substantial wrong or miscarriage of justice. (R. v. Khan, 2001 SCC 86 , [2001] S.C.J.

No. 83, [2001] 3 S.C.R. 823, 160 C.C.C. (3d) 1 at para. 26) [39] In the circumstances of this case, the errors are not minor and the evidence is not so overwhelming that I can conclude therewas no substantial wrong or miscarriage of justice. [40] What is of concern here is the reliability of evidence that was fundamental to the case of the Crown. The Crown called onlyone other witness, the vice-principal to whom the child spoke, and who, in turn, telephoned the Catholic Children’s Aid Society.

While itis not entirely clear, it would seem, from the transcripts with which I have been provided, that the accused called no evidence. Whetherthis is so or not, it is evident that the information from the child was important. The substance of what she said as to the alleged conductof the accused was at the centre of the case. The videotape of the interview was relied on to provide at least some of that evidence. [41] It is of some interest to note that the judge wondered whether reliance on the statement was really necessary. He asked: I mean, you’ve told us that part way through the VCR conks out.

Wouldn't it be easier to simply, if she's got a memory, to simply testify?So that way you don't deal with--you're trying to introduce a video which is an incomplete video. (Proceedings at Trial, May 25, 2009 at p. 18) [42] Nonetheless, the Crown insisted that the videotape be played. Further on in this exchange, he said: Well, it's not the totality, Your Honour, but given that the purpose of this

section is to be able to play the statement of child, any portion,I would submit, it is helpful to us. It was five minutes I'd still ask. (Proceedings at Trial, May 25, 2009 at p. 19) [43] The insistence of the Crown tends to confirm the importance of the videotaped statement. [44] It is as simple as this: if the evidence of the child is unreliable, it may not support the conviction of the accused. The pre-conditions required to be satisfied before the videotape of the interview can be produced are intended to ensure that reliability.

The needfor the voir dire is to confirm those pre-conditions have been satisfied before the evidence is relied on. [45] This is not a proper circumstance for the application of the “curative proviso”. [46] Finally, counsel for the accused (the appellant) submitted that there was another and separate ground for appeal. [47] There were inconsistencies in the evidence of the child. These were not reviewed or discussed in the decision of the trialjudge. No explanation was provided as to why they did not demonstrate the presence of reasonable doubt.

Counsel referred to thefollowing: The trial judge did acknowledge that ‘there were differences to some extent in what the complainant testified to and what he said to thepolice.’ Beyond this acknowledgment, however, the trial judge did not address these ‘differences’ in his reasons. Of course, trial judges are not required to deal expressly with every inconsistency in the evidence. Trial judges should, however, addresscontradictory evidence on key or material points. See R. v. Stark (2004), (ON CA), 190 C.C.C. (3d) 496 at paras. 12-13 (Ont. C.A.). (R. v. Gabris, [2007] O.J.

No. 2357 (C.A.) at paras. 9 and 10) [48] In R. v. Gabris, the Court of Appeal determined that the conviction should be set aside and a new trial ordered. The failure ofthe trial judge to address inconsistencies that were material to the defence had deprived the accused of a fair trial (see: R. v. Gabris,supra, at para. 12; and see also: R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788 at para. 26). [49] In the case that I am asked to decide, the judge did not consider any inconsistencies in the evidence of the accused in comingto his decision.

He understood that the memory of children “has to be treated differently at times because it is not always as detailed asadults [sic] memory is…”. He commented on her demeanour (“…she showed the appropriate emotion when she was talking about whathad happened…”). He found that: “Overall she seemed to be a credible witness”. But he did not explain how he resolved, for thepurposes of his decision, any of the inconsistencies in her evidence.

He noted only that he had only her version of events and that, whilenot perfect, the story she relayed satisfied him beyond a reasonable doubt (see: Reasons for Judgment of Dizio, J., August 31, 2009, atpp. 4-5). [50] To me, this is not enough. [51] How can the accused know what evidence was relied on to convict him of the charges?

He cannot. [52] For these reasons, I grant the appeal and order a new trial. [53] Counsel have agreed that, if the appeal is granted, this matter should be returned to the Ontario Court of Justice to be spokento at the Courthouse at 2201 Finch Avenue W., Court Room #202, in the City of Toronto, on January 31, 2011, at 10 a.m. It is soordered.

LEDERER, J. Released: 20101208 CITATION : R. v. Ferreira, 2010 ONSC 6733 COURT FILE NO.: 187/09 DATE: 20101208 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – MANUEL BENMIRO FERREIRA Appellant JUDGMENT LEDERER J. Released: 20101208