R. v. M.B., 2018 BCPC 141 (CanLII)
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2018 BCPC 141 |
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Date: |
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File No: |
244874-6-KAC |
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Registry: |
Vancouver |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
M.B.
ADMISSIBILITY OF COMPLAINANT’S
VIDEO RECORDED INTERVIEWS
RULING ON VOIR DIRE #1
OF THE
HONOURABLE JUDGE R.P. HARRIS
BAN ON PUBLICATION
486.4(1) CCC; 486.4(2) CCC
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G. Proulx |
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Counsel for the Defendant: |
M. Cheema |
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Vancouver, B.C. |
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Dates of Hearing: |
April 16 & 17, 2018 |
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Date of Judgment: |
June 11, 2018 |
INTRODUCTION
[1] The Crown applies pursuant to s. 715.1 of the Code to have three video recorded interviews (the “recordings”) entered into evidence. A voir dire was held and evidence was received from two police officers and the complainant.
[2] On April 19, 2018, counsel made submissions on the application and the Court ruled that the video recordings were admissible and that the Court would disabuse itself of those portions of the recordings that were inadmissible.
[3] Below are my reasons.
BACKGROUND
[4] The accused is charged with a number of sexual offences related to his step-daughter, the complainant. The complainant was born [omitted for publication]. She was between the ages of 7 – 15 when the offences allegedly occurred. The offences are alleged to have occurred between the years 2008 and 2016.
[5] The complainant first reported the allegations to the police in early November of 2016, and on November 3, 2016, the police conducted a video recorded interview of the complainant. Thereafter, the complainant was interviewed on November 13, 2017, and March 22, 2018. As such, she was 15, 16 and 17 years of age at the time of each interview. All of the interviews were recorded on video. For ease and when necessary, I will refer to the interviews as interview 1, 2 and 3.
EVIDENCE
Interview 1
[6] The complainant testified about her age and her ages at the time of the alleged offences. She also testified about a series of alleged sexual assaults committed by the accused, with the last event occurring in late September of 2016. Shortly thereafter, the accused left the country to visit his family. As the date of the accused’s return approached, the complainant became anxious. She wanted things to stop and life to change. It was her belief that the assaults would resume when the accused returned. The complainant decided to disclose what had been happening she therefore organized a family meeting where she explained what had been occurring.
[7] The complainant’s mother, E.L., was at the family meeting and when she learned about the allegations she notified the police. The police attended that day and the complainant provided them with a written statement. Then, and within a few days of the police becoming involved, the complainant went to the police station and on November 3, 2016, she participated in a video recorded interview.
[8] Prior to testifying on the voir dire, the complainant viewed the video recording of the interviews and while doing so she followed along with a written transcript. The complainant testified she was trying to be truthful when she was interviewed and she adopted the contents of the recording.
[9] With respect to her delay in reporting the incidents, the complainant testified she was scared and she did not know what to do.
[10] The interview was conducted by Constable Yee, who testified that, she was asked to interview the complainant and she prepared for the interview by reviewing the police report and the complainant’s written statement. Constable Yee then met the complainant at the police station and introduced herself. She then explained that the interview would be video recorded and she took the complainant into the interview room.
[11] The complainant was then interviewed for approximately 3 hours and 15 minutes. At the conclusion of the interview Constable Yee escorted the complainant out of the interview room and to her mother.
[12] With the exception of the interview, Constable Yee did not discuss the allegations with the complainant, nor, did she discuss the allegations with the complainant’s mother. The recording of the interview was played in court and Constable Yee confirmed that it was accurate.
[13] The video recording of interview 1 was played during the voir dire and within the interview the complainant described the various sexual assaults allegedly committed by the accused. In her narrative the complainant was detailed and she appeared to have a good recollection. The court observes that, visual and audio quality of the recording was clear and easily understood.
Interview 2
[14] On November 13, 2017, the complainant was interviewed by Detective/Constable Hemphill. The purpose of this interview was to ask the complainant questions related to a digital audio recording that had been given to the police.
[15] With respect to the digital audio recording, the complainant’s mother, E.L., had surreptitiously placed a recording device in the home prior to the complainant first informing the family about the assault allegations. Only after the complainant came forward with her allegations did her mother produce the digital recording device. She then gave it to Constable Kwan, who on November 2, 2017, forwarded it to Detective/Constable Hemphill.
[16] Detective/Constable Hemphill sent the device to the department’s technological unit. The unit examined the device and prepared a report which was forwarded to Detective/Constable Hemphill.
[17] On February 23, 2017, Detective/Constable Hemphill started listening to the 20 hours of recordings contained on the recorder. She completed this task on March 14, 2017. During her review of the recordings Detective/Constable Hemphill observed that there were portions where the sound quality was poor. As such, Detective/Constable Hemphill forwarded the device to the RCMP on May 17, 2017, with the intention of having the quality enhanced.
[18] On October 10, 2017, Detective/Constable Hemphill received the device and disks of the recordings that had been downloaded and improved by the RCMP. Detective/Constable Hemphill then arranged to interview the complainant. The purpose of this interview was to ask the complainant questions related to what had been discovered on the recording device. This interview occurred on November 13, 2017.
[19] Prior to testifying the complainant reviewed the interview. In her testimony she confirmed she was being truthful during her interview and she did not think that she held anything back. She testified she read the transcript of her interview about a week before testifying and that she adopted it as being truthful.
[20] The recording of interview 2 was played during the voir dire, and within the complainant provides details regarding one of the sex acts allegedly committed by the accused. In watching the recording the court observed that the quality was clear.
Interview 3
[21] In early March of 2018, the complainant had an advance interview with the Crown. During the interview, the Crown conveyed to the complainant the importance of not leaving anything out of her previous interviews and written statement. Against this backdrop the complainant disclosed that there were details which she had not previously provided to the authorities.
[22] Arrangements were then made for the complainant to meet with Detective/Constable Hemphill. The purpose was for the complainant to provide additional details. The two met on March 22, 2018. During this interview the complainant disclosed that the sexual incidents also included oral sex. The interview did not revisit details that had been covered in interviews 1 and 2.
[23] During her testimony the complainant explained that her reason for not previously disclosing the incidents involving oral sex was due to embarrassment. She confirmed that she was being truthful when she was being interviewed and she adopted the transcript of her interview.
[24] Interview 3 was played during the voir dire, and within the interview the complainant described sexual contact and details related to the other assaults not previously disclosed.
ANALYSIS
a. Section 715.1 of the Criminal Code
[25] Section 715.1 reads:
Evidence of victim or witness under 18
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.
b. Analysis
[26] The preconditions for admissibility are:
1. the complainant was under 18 years of age at the time of the alleged offence;
2. the video recording must be made within a reasonable time after the alleged offence;
3. the complainant must describe the acts complained of in the video recording;
4. the complainant, while testifying, adopts the contents of the videotape; and
5. the trial judge is not of the opinion that admitting the evidence would interfere with the administration of justice.
[27] In R. v. C.C.F., 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, the court considered the meaning of the term “adopts” as contained in section 715.1. In doing so, the court reinforced that the interpretation of legislation is facilitated by considering the legislation’s aim or goal. Accordingly, and given that this court is being asked to consider if the recordings were made in a reasonable time, as contained within s. 715.1, it is necessary to first consider the aim or goal of s. 715.1.
[28] In R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, Chief Justice Lamer commented on the aim and the purpose of the section 715.1, where at pg. 429 he commented:
By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and the discovery of truth.
[29] In R. v. C.C.F., 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, the court had another opportunity to consider s. 715.1. The court confirmed the aim of preserving evidence and discovering the truth and noted the secondary aim of preventing further injury to the child. In this regard the court stated at paragraphs 20 and 22:
20 There is another aspect of the section that cannot be ignored. Any kind of assault on a child may be traumatic. Assaults of a sexual nature are still more likely to have a serious deleterious effect. This traumatic effect will be greater still when the perpetrator is a parent, guardian or person in authority. Recalling the events will be extremely difficult for every child and the more sensitive the young person, the greater will be the difficulty experienced. It follows that anything that can be done to ease the traumatic effect upon a child should be encouraged. Thus a record of events made in more informal and less forbidding surroundings than a courtroom will serve to reduce the likelihood of inflicting further injury upon the child witness.
22 The important subsidiary aim of the section is to prevent or reduce materially the likelihood of inflicting further injury upon a child as a result of participating in court proceedings. This will be accomplished by reducing the number of interviews that the child must undergo and thereby diminish the stress occasioned a child by repeated questioning on a painful incident. Further, the videotaping will take place in surroundings that are less overwhelming for a child than the courtroom.
[30] In R. v. T.R.J., 2014 BCSC 1611, Mr. Justice Fitch succinctly commented on the aim and purpose of s. 715.1, and at paragraphs 43 and 44, he stated:
[43] Section 715.1 was enacted in 1988 to address the realities of child abuse and to accommodate the needs of child witnesses. The provision was designed to address these problems by seeking to "preserve an early account of the child's complaint" in order to "assist in the discovery of the truth" and to provide a more effective "procedure for the introduction of the child's story into evidence at trial": R. v. L.O.D., [1993] 3 S.C.R. 569 at para. 34.
[44] More specifically, the twofold purpose of the provision is to: (1) enhance the ability of the court to discover the truth by preserving what is likely the child's most accurate and best recollection of the alleged event; and (2) to prevent or substantially reduce the likelihood of inflicting further injury upon the child witness as a result of their participation in the court proceedings: R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 at paras. 18–24.
Pre-Conditions for Admissibility
1. Whether the complainant was under 18 at the time of the alleged offences
[31] The complaint’s evidence satisfies the Court that the events forming the substance of the allegations commenced when the complainant was 7 or 8 years old with the last event occurring when the she was 15 years old.
2. Whether the recordings were made within a reasonable time
[32] In T.R.J., supra, Mr. Justice Fitch thoroughly canvassed the principles relevant to “within a reasonable time”, he stated at paragraphs 70–80:
[70] The following general principles are among those than can be distilled from the jurisprudence on the question of whether a video recording has been made within a reasonable time after an alleged offence.
[71] First, the period of time which must be "reasonable" is the period between the commission of the alleged offence and when the witness provided the video recording concerning that offence. The period does not, for the purposes of s. 715.1, run from the date of disclosure: R. v. Lucas, 2001 BCCA 361.
[72] Second, where, as in this case, the alleged offence involves repeated acts of sexual abuse over a period of time, it would seem that the operative starting date of the period which must be reasonable is the probable date of the last incident of abuse: R. v. Archer (2004), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.) at paras. 73–74.
[73] Third, whether the time period between the alleged offence and the making of the video recording is "reasonable" is a case-specific inquiry which must take account of all the circumstances: R. v. L.O.D. at paras. 73–77.
[74] Fourth, in conducting the analysis, courts must be mindful of the fact that children, for a number of well-documented reasons, often delay disclosure of sexual abuse, and for substantial periods: R. v. L.O.D. at para. 75; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at 136.
[75] In R. v. S.(P.) (2000), 2000 CanLII 5706 (ON CA), 144 C.C.C. (3d) 120 (Ont. C.A.) at 137, Moldaver J.A. (as he then was) expressed the view that:
In considering whether a videotape has been made within a reasonable time, the court must balance a number of factors, the most important being the reasons for the delay and the impact of delay on the child's ability to accurately recall the events in issue.
[76] The following non-exhaustive list of additional considerations may be relevant to the analysis: the age of the witness; the nature of the allegations; the nature of the relationship between the witness and the accused; the potential impact the delay may have had on the ability of the witness to accurately recall the events in question; and, the existence of any circumstances in the period between the alleged offence and the videotaping that might impact on the reliability of the videotaped statement.
[77] The considerations I have enumerated do not operate in isolation. The time that has elapsed between an offence and the making of a videotaped statement is always an important consideration, but the totality of the circumstances must be considered, and in a cumulative way.
[78] It is generally recognized that children's memories fade faster than those of adults and that, where a complainant is very young at the time of an alleged offence, concerns will arise about her ability to accurately recall the incidents at the time the video-recorded statement is made. That is why the legislation obliges the Crown to establish on a balance of probabilities that the video recordings were made within a reasonable time after the alleged offence.
[79] Further, the younger the child, the more acute the concern will become as the passage of time between the alleged offence and the making of the videotaped statement increases. This is an important factor, but not one that will invariably govern the analysis, regardless of the other circumstances. For example, the nature of the allegation, including whether it was a repeated event, may be such that it left a lasting impression even on a very young child – an impression which appears to enable her to accurately recall and relate what allegedly occurred a considerable period of time later.
[80] The point is this: whether a video recording has been made within a reasonable time after the alleged offence is not an exercise in mathematics. It is an exercise of judicial discretion which takes its shape from the governing principles and the unique circumstances of a given case.
[33] A review of the authorities endorses the perspective that, “within a reasonable time” is contextual to the facts of the particular case. This perspective is highlighted by noting delays of two to three years has been held to be reasonable, whereas, there are situations where delays of one year and another of fourteen months were unreasonable: R. v. Quash, 2013 BCSC 2498; R. v. G.(S.), 2007 CanLII 20779 (ON SC), [2007] O.J. No. 2203 (S.C.J.); R. v. J.J., 2008 ONCA 133; R. v. Gallie, [2002] O.J. No. 3860 (S.C.J.); and R. v. Rohich, [2009] O.J. No. 4050 (S.C.J.).
[34] In the instant case, the first recording was made within five weeks of the last alleged assault. The delay in reporting was due to the complainant being scared and trying to figure out what to do. When I consider her age, and the dynamics of her relationship with the accused, the complainant’s fear and uncertainty is more than understandable. I see nothing in the delay to indicate that the passage of time had denigrated her memory; specifically, when she was interviewed the complainant appeared to have a good recollection of the basics of the allegations.
[35] As for recording 2, it was made approximately thirteen months after the last event. The purpose of the interview was to ask questions regarding what was captured by the digital recorder. In my view, the police were not in a position to ask questions about the digital recording until the quality had been enhanced, which was completed in the fall of 2017. When I consider all of the facts and circumstances, it is clear that the video recording of the interview captured the complainant’s memory when she had vivid recollection of events and that the interview occurred when practicable; specifically, after the digital recording had been enhanced. Accordingly, I find in all of the circumstances that the recording was made within a reasonable time.
[36] Recording 3 was created approximately thirty months after the last alleged assault and after the complainant had been interviewed on two previous occasions. Despite this, and after considering all of the circumstances, I find the recording was made within a reasonable time. In arriving at my conclusion, I observe the allegations disclosed in recording 3 involve acts which would be embarrassing and humiliating for an adult to disclose, hence, the delay in disclosure is consistent with the complainant’s age and maturity. I also observe there was nothing to indicate that the passage of time impacted the complainant’s recollection. In fact, I observe her descriptions included timing and location of the alleged acts.
[37] Finally, and with respect to all of the recordings, I am of the view that admitting recordings into evidence would serve the laudable goal of minimizing the in-court trauma that the complainant would experience in the re-telling of her allegations.
3. Whether the complainant described the acts complained of in the video
[38] All of the recordings contain details describing the alleged sexual conduct that forms the basis of the charges against the accused.
4. Whether the complainant adopted the recordings as true
[39] The complainant indicated she was doing her best to be truthful during all of the interviews and she adopted the recordings as true.
5. Whether admitting the evidence would interfere with the administration of justice
[40] The considerations for exercising judicial discretion to exclude a video recording was established in (D.O.), supra, where Madam Justice L’Heureux-Dubé stated at paragraph 65:
[65] … Any statements which are in conflict with rules of evidence may be expunged from the tape. There are a number of factors which the trial judge could take into account in exercising his or her discretion to exclude a videotaped statement:
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 the victim);
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 the events described.
[41] With respect to the above considerations, I see no issue with the form of questions used by the officers, further, there is no evidence suggesting they had an interest in the matter.
[42] Further to the above, the visual and audio quality of the video recordings is good. Additionally, there is no visual information captured in the recordings that would prejudice the accused. Finally, and recognizing this is a judge alone trial, I will disabuse myself of those portions of the recordings that contain inadmissible information.
[43] In summary, although counsel for the accused referred to the above considerations, she did not point to any specific evidence suggestive that the admission of the video recordings would interfere with the administration of justice.
CONCLUSION
[44] In considering the Crown’s application, I have approached the analysis with the purpose and aim of s. 715.1 in mind. Specifically, the preservation and the discovery of the truth in a manner that avoids further injury to the complainant, all while ensuring that the accused’s fundamental right to a fair trial is not compromised. Accordingly, and for the above reasons the recordings are admissible at trial and I will disabuse my mind of those portions that would otherwise be inadmissible.
[45] Lastly, I emphasize the accused is presumed to be innocent, and this presumption remains throughout the trial and can only be displaced if, at the close of the trial, the court is satisfied that the evidence proves that the accused is guilty beyond a reasonable doubt.
_____________________________
The Honourable Judge R.P. Harris
Provincial Court of British Columbia