IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         K.S.T. is before the Court charged under Information 24560-2-C with sexual assault, sexual interference, invitation to sexual touching and exposure of genitals.  All offences are said to have occurred between January 1, 2013 and December 27, 2016, at [omitted for publication], or Prince George or Prince Rupert, B.C.  The complainant in each count was K.S.T.’s great niece, S.H.

[2]         The Crown proceeded by indictment, and K.S.T. elected to be tried by a Provincial Court Judge.

[3]         This is the Crown’s application brought pursuant to section 715.1 of the Criminal Code to admit into evidence the video recorded statements of Crown witnesses, S.H. and S.D.

[4]         S.H. was almost nine years old at the beginning of the offence period encompassed by Information 24560-2-C and 12 at the end.  S.H. was just shy of her 13^th birthday when she gave her video recorded statement to Constable Simone Heuberger in Smithers, B.C. on January 7, 2017.  S.H. was [omitted for publication] days old and in Grade 8 when she testified at trial.

[5]         S.D. was between [omitted for publication] days during the period encompassed by Information 24560-2-C.  She was [omitted for publication] days old and in Grade 6 when she gave her video recorded statement to Constable Simone Heuberger in Smithers, B.C. on January 8, 2017.  She was [omitted for publication] days old and in Grade 7 when she testified at trial.

[6]         There was no issue of either S.H. or S.D.’s capacity to understand and respond to questions on the 715.1 voir dire.  Both witnesses testified upon promising to tell the truth.

[7]         On the first day of trial, November 1, 2017, Mr. McCarthy advised the Court that identification is not in issue in that the person who stands accused of these offences is K.S.T.  Mr. McCarthy also confirmed K.S.T. took no issue the person who would be referred to throughout the trial as “[omitted for publication]” was in fact K.S.T.

[8]         The Crown seeks to admit S.H. and S.D.’s recorded statements pursuant to s.715.1 which provides that:

[9]         I have received and reviewed the following case authorities:

[10]      The Crown called the following five witnesses on the admissibility voir dires:

[11]      The Crown’s application for the admissibility of S.H. and S.D.’s video recorded statement was heard in the two “nested” voir dires which took place on November 1, 2, and 3, 2017, and on January 8, 29, and 31, 2018.  I reserved my decision on January 31, 2018.  These are my reasons for judgment on both applications.

[12]      R.A.H. is S.H. and S.D.’s mother.  S.H.’s and S.D.’s biological father is J.D.  S.H. has no relationship with J.D.

[13]       Since May 2017, R.A.H. has lived in [omitted for publication] with her partner, R.G. S.H. and S.D. live with R.A.H.’s mother.  Before moving to [omitted for publication], R.A.H. lived in Smithers, B.C.  She is related to K.S.T. through her father, and believes he is her uncle.  R.A.H. calls K.S.T. ‘[omitted for publication]”.  K.S.T. is married to M.G.  K.S.T. and M.G. reside at [omitted for publication] B.C.

[14]      R.A.H. said that in 2007 or 2008, S.H. and S.D. began spending time at K.S.T. and M.G.’s residence while R.A.H. was in camp.  S.H. and S.D. spent every other weekend at K.S.T. and M.G.’s residence, if not every weekend.  S.H. and S.D. also spent some school days at K.S.T. and M.G.’s residence, when M.G. was ill and they helped care for her.

[15]      R.A.H. confirmed that S.H. and S.D. would go on trips with K.S.T. and M.G. to Prince George, Prince Rupert and Terrace.  Sometimes these trips were for a couple of days, sometimes they were just over night.  S.H. and S.D. last went with K.S.T. and M.G. to Prince Rupert in November 2016.

[16]      R.A.H. says that in December 2016, S.H. disclosed to her that she had been sexually abused at K.S.T. and M.G.’s residence since she was nine.  This disclosure arose during an argument over R.A.H. restricting S.H.’s access to Facebook.  S.H. became angry and said she wanted to go stay with her dad.  R.A.H. asked her why she would say something like that and S.H. said she doesn’t feel safe with her family now.  R.A.H. described their ensuing conversation as follows:

[17]       R.A.H. was shocked by this disclosure.  She had never observed anything to believe S.H. had been sexually abused.

[18]      S.H. further disclosed to her mother that she had told M.G. of the sexual abuse.  R.A.H. “freaked out and cried” and contacted M.G. by Facebook messenger.  Their Facebook communications from on or about December 27, 2016 and January 19, 2017, were entered as Exhibit A on Voir Dire # 1.  R.A.H. and M.G. became alienated as a result of S.H.’s disclosure.

[19]      Although S.H. said she wanted to make a statement to the police, she asked to speak to a counsellor first.  R.A.H. took S.H. to see a counsellor at Victim Services in Smithers, B.C.

[20]      The Victim Services counsellor arranged for S.H. to meet with a female police officer, Constable Simone Heuberger.

[21]      On January 6, 2017, Constable Heuberger met with R.A.H. and took her audio recorded statement.  R.A.H. took S.H. and S.D. to the RCMP station to provide their statements on January 7 and 8, 2017.  R.A.H. was not present during Constable Heuberger’s interview with S.H. or S.D.  Neither S.H. nor S.D. was present when the other was being interviewed by Constable Heuberger.

[22]      R.A.H. did not grill S.H. for details of the sexual abuse other than to ask her if K.S.T. was inside of her in order to determine the seriousness of her allegations. R.A.H. said she did not want to know any details until the matter was dealt with in court.

[23]      After R.A.H. and S.H. provided their statements to the police, R.A.H. took S.H. to a doctor to test her for pregnancy and sexually transmitted diseases.  K.S.T. and M.G. had taken S.H. to the doctor previously, but generally for bladder infections from which S.H. frequently suffered.  S.H. did have some blood analysis which did not indicate any medical concerns.  S.H. did not undergo an internal medical examination because she was uncomfortable with the male doctor.

[24]      R.A.H. testified that S.H., who was once a loving, caring and outgoing person, had become unhappy, angry, self-destructive and suicidal.

[25]      S.H.’s birthday is January 31, 2004.  She has two brothers and one sister, S.D.  At the time of her statement (January 7, 2017), S.H. was almost 13 years old and in Grade 7.  She lived at home with her mother and her mother’s partner and her three siblings.  At the time of trial, S.H. lived with her maternal grandmother, D.H.

[26]      S.H. believes she moved to Smithers with her mother and siblings in October 2016.  Before moving to Smithers, S.H. lived in [omitted for publication].  She and S.D. spent weekends and school holidays at K.S.T. and M.G.’s house.  She referred to K.S.T. as [omitted for publication] or Ye-eh and M.G. as Grandma.  Ye’eh is Gixtsan for Grandpa.

[27]      S.H. remembers her mother driving her to the Smithers RCMP detachment with her sister S.D., and her friend B.  She remembers speaking alone with Constable Heuberger, the matters they discussed, and trying to tell the truth.

[28]      S.H. met with Constable Heuberger alone and she did not meet with any other police officers prior to meeting Constable Heuberger.  S.H.’s entire 70 minute statement was video and audio-recorded and the recording transcribed.  S.H.’s video recorded statement was entered into evidence as Exhibit V1-B and the transcript of the video was entered as Exhibit V1-C, in voir dire #1.

[29]      In her video-recorded statement, S.H. told Constable Heuberger she knew why she was at the police detachment.  She came to talk to the officer about what happened.  As to the nature of the touching, S.H. said:

[30]      In her video-recorded statement, S.H. described the following incidents:

[31]      S.H. testified as to the following matters in her cross examination:

[32]      S.D. is S.H.’s younger sister.  When she provided Constable Heuberger with an audio recorded statement, she was eleven years old and in Grade 6. S.D. met with Constable Heuberger alone and did not meet with any other officers prior to meeting with her.  S.D. gave a 24 minute statement to Constable Heuberger.  Her statement was video and audio-recorded in its entirety, and the recording transcribed.  S.D.’s video recording and its transcription has been entered into evidence.

[33]       In her audio-video recorded statement S.D. testified as to the following matters:

[34]      S.D. said, “Those two times is when I knew it was going on, but I didn’t know who to tell and I was too scared to tell.”

[35]      In the voir dire, S.D. testified she remembered her interview with the police on January 8, 2017, the reason for the interview, namely, to talk about S.H.’s sexual abuse.  She also testified that when she talked to the officer on January 8, 2017, she told her the truth.

[36]       Mr. Bailey is the Manager for the Highliner Plaza Hotel & Conference Centre in Prince Rupert, B.C.  Attached as Exhibit “A” to Mr. Bailey’s affidavit is a true copy of the hotel’s guest record for K.S.T. of November 5, 2016.  The invoice indicated that K.S.T. had paid a “pet deposit”.

[37]      Owen Smith is a corporal with the RCMP.  He has been a police officer for nine and one-half years and a corporal for a year and one half.  He is stationed in New Hazelton, B.C., a post he has held for a year and one half.

[38]      Corporal Smith was the lead investigator on this matter.  Corporal Smith confirmed that S.H. and S.D. each gave one statement to police in connection with this matter.  Both statements were given to Constable Simone Heuberger at the Smithers RCMP detachment; both statements were recorded.

[39]      Constable Simone Heuberger has been a constable with the RCMP since 2011. During this time she has been stationed with the Smithers RCMP detachment.  She has experience in investigating allegations of sexual assault against child complainants and has been trained in the step-wise program for interviewing children.

[40]      Constable Heuberger became involved in the matter before the court on December 28th, 2016, when she received a call around 8:30 from the New Hazelton detachment requesting assistance in obtaining some statements from witnesses who resided in Smithers in regards to a disclosure of a sexual assault allegation that was made.

[41]      Constable Heuberger met with R.A.H. on January 6, 2017, S.H. on January 7, 2017, and S.D. on January 8, 2017.  Taking statements from these three witnesses was Cst. Heuberger’s only involvement in the investigation of the matter before the court.  Cst Heuberger did not know R.A.H. and had never meet S.H. or S.D. before taking their statements.

[42]      Constable Heuberger’s interviews and discussions with R.A.H., S.H. and S.D. were recorded in their entirety.  S.H. and S.D.’s formal interviews were audio and video recorded.  Their preliminary interactions with Constable Heuberger prior to the interview commencing were audio recorded.

[43]      In an s. 715.1 application, the witness takes the stand, watches the video and adopts the contents.  This prevents the necessity of having the witness provide direct evidence although she is subject to cross-examination.

[44]      In R. v F. (CC), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183 the Supreme Court of Canada held (at para. 21) the dual purposes of s. 715.1 are to create a record which is probably the best recollection of the event that will be of investigative assistance in ascertaining the truth and to make 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.

[45]      A subsidiary aim of s. 715.1 is to prevent or materially reduce the likelihood of inflicting further injury upon a child as a result of participating in court proceedings.  This is accomplished by reducing the number of interviews the child must undergo, thereby diminishing the stress of repeated questioning on a painful incident, and by videotaping the evidence in surroundings less overwhelming for a child than a courtroom (para. 22).

[46]      The purpose of the voir dire is to determine admissibility.  Weight and credibility are subsequent issues.  The circumstances in which the video was made, the veracity of the witness’ statements, and the overall reliability of the evidence are factors relevant to weight rather than the admissibility of the statement: F. (C.C.) at paras. 46-47.

[47]      Section 715.1 permits both videotaped and viva voce evidence: In F. (C.C.), the Supreme Court of Canada held the “prior statement, combined with the complainant’s in-court evidence, may well afford a more complete version of the complainant’s evidence.”  The Court concluded at para 45, “An adopted videotaped statement should, together with the viva voce evidence given at trial, comprise the whole of the evidence-in-chief of the complainant.”

[48]      In R. v. Aksidan, 2006 BCCA 258 (CanLII), the B.C. Court of Appeal held that the video recorded statement is part of the witness’ examination-in-chief and does not constitute a prior consistent statement nor corroboration.  Recently, R. v. Untinen, 2017 BCCA 320 (CanLII), the B.C. Court of Appeal clarified that it is appropriate for a judge to consider internal consistency in the way a complainant has related her account over time to assess a defence attack on the complainant’s credibility or the reliability of her evidence, when that attack is premised on inconsistencies between the two versions. The appellate court stated at para. 80:

[49]      Section 715.1 is a statutory exception to the rule that hearsay is inadmissible.  It permits an out‑of‑court statement to be admitted for the truth of its contents provided the Crown satisfies the following five prerequisites for admissibility:

[50]      Once these preconditions are met, the recording will be admitted in evidence unless the presiding judge is of the opinion that to admit the video would interfere with the proper administration of justice.

[51]      The Crown bears the onus of establishing the preconditions on a balance of probabilities: R.A.H., 2017 PECA 5, (CanLII), at para. 25.  Quash, at para. 15; R. v T.R.J., 2014 BCSC 1611 (CanLII), para 88, 89.

[52]      The complainant was S.H. was [omitted for publication] days old at the beginning of the offence period encompassed by Information 24560-2-C and [omitted for publication] days old at the end.  S.H. was [omitted for publication] days when she gave her video recorded statement to Constable Simone Heuberger in Smithers, B.C. on January 7, 2017.  She was [omitted for publication] days old and in Grade 8 when she testified at trial.

[53]      S.D. was between [omitted for publication] days and [omitted for publication] days during the period encompassed by Information 24560-2-C.  She was [omitted for publication] days old and in Grade 6 when she gave her video recorded statement to Constable Simone Heuberger in Smithers, B.C. on January 8, 2017.  She was [omitted for publication] days old and in Grade 7 when she testified at trial.

[54]      I am satisfied as to both S.H. and S.D. were under 18 years of age at the time the offence was alleged to have been committed.

[55]      The legislative goal of s. 715.1 is achieved by obtaining an account of the incident while it is fresh in the complainant’s mind and more likely to be full and accurate.  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 outlining the details of that offence.  In R. v. Lucas, 2001 BCCA 361 (CanLII), the Crown tendered videotaped statements by a young complainant made very shortly after the first disclosure of the alleged sexual activity, but some four years after the sexual activity allegedly concluded.  The trial Judge admitted these statements as the time between the “disclosure” of the sexual activity and the videotaped statements was reasonable.  The British Columbia Court of Appeal disagreed, holding that this approach was “inconsistent” with the language of s. 715.1 of the Code.  Saunders J.A., on behalf of the Court, stated that while Parliament could have framed the section as measuring the time “from disclosure,” this was not the choice made by Parliament, which provided instead “that measurement starts from the date of the alleged events.”

[56]      In L. (D.O.), 1993 CanLII 46 (SCC), 1993 CarswellMan 24, the Supreme Court of Canada upheld the trial judge’s ruling that the video statement of the 9 year old complainant was made within 5 months of the offence was made within a “reasonable time.”  The Court held that what is or is not ‘reasonable’ depends entirely on the circumstances of each case; it requires a contextual assessment in which a wide variety of considerations will factor into the balancing.

[57]      The most important of the factors to be balanced in assessing reasonableness are the reasons for the delay and impact of the delay on the child’s ability to accurately recall events in issue.

[58]      In R. v T.R.J., 2014 BCSC 1611 (CanLII), Justice Fitch stated at para. 80:

[59]      In R. v. S. (P.), 2000 CanLII 5706 (ON CA), leave denied [2000] S.C.C.A. No. 486, the court ruled that a two-year delay was "borderline" but not unreasonable.  The complainant was nine at the time the video statement was taken and 5 or 6 years old at the time of the offence.  The Court allowed the videotape evidence upon taking into account the fact that the child was timid and fearful, unable to communicate because of fear of embarrassment as well as her relationship with the accused who was her cousin. At para. 71, Moldaver, J.A., as he then was, discussed the factors to be considered:

[60]      The case law indicates that delays of up to two or three years are often held to be reasonable.  For example, in R. v. Quash, 2013 BCSC 2498 (CanLII), at paras. 36-59, the trial judge found reasonable a 22 months delay where the Complainant was 11 years old at the time of her videotaped statement and 9 or 10 at the time of the offence.

[61]      In R. v. S.M., 1995 ABCA 198 (CanLII), the Alberta Court of Appeal allowed the introduction of a videotaped statement after a 17-month delay from the time of the last incident and found that the statement was made within a reasonable time due to the natural reluctance on the part of the complainant to disclose the allegations plus an honest hesitation by the mother about what was the right thing to do for the child.  As to the argument the delay cannot be so long as to destroy any real hope of catching recollection before it became faint or distorted, the Court noted at para. 6:

[62]      In R. v. S.G., 2007 CanLII 20779, the Ontario Superior Court found a three year delay reasonable where the child’s explanation for the delay was fear for her mother’s safety.  The complainant gave the videotaped statement to the police when she was 13 years old about events which occurred when she was 10 years old and in Grade 5.  The Complainant was 16 years old at trial.  Justice Spies cited Professor David Paciocco (as he then was), who observed in his text, The Law of Evidence, that if "reasonable time” is interpreted in too relaxed a fashion it guts much of the reliability for introducing these statements".  Justice Spies found the complainant, at 10 years old, was not of such a young age where the three year delay in obtaining her statement would raise obvious concerns about her ability to accurately recall the incidents.  In admitting the videotaped statement, Justice Spies took into consideration a number of factors, including the fact there was no evidence of anything that occurred between the events complained of and the videotaped statement had improperly influenced the complainant's recollection of the events.

[63]       In R. v. J. (J.), 2008 ONCA 133 (CanLII), at paras. 8-9, the Ontario Court of Appeal upheld the trial judge’s decision to permit the Crown to introduce a videotaped statement made by the police of an interview of a 15 year old complainant recounting sexual abuse by the accused which ended when she was 12.  The statement was taken within days of the complaint but three years after the alleged abuse.  The accused was her mother’s partner, and the complainant had trouble testifying against him.  In the preliminary inquiry, however, the complainant recounted further abuse by the appellant that lasted until a few months before the complaint.

[64]      In R. v. M.S.J., 2016 NWTCA 2 (CanLII), the evidence as to when the last incident of touching occurred was not clear.  The Court found the delay between the last incident and the police statement was approximately 1.5 to 2.5 years or at most, three years.  The complainant explained she did not make disclosure because at first, when she was very young, she did not realize anything inappropriate was happening.  Later, when she started to realize it, she was in denial for a long time.  The Court of Appeal found that under these circumstances, it was open to the trial judge to find the statement was made within a reasonable time.  The appellate court said it was noteworthy that in R. v. S.G. (2007), 2007 CanLII 20779 (ON SC), and R. v. D.S., 2009 BCPC 217 (CanLII), a delay of three years in each case was found to be a reasonable time.

[65]      In exceptional circumstances even much longer periods of time have been held to be reasonable, for example, in R. v. B.(W.E.), 2012 MBCA 23 (CanLII), the Manitoba Court of Appeal upheld the decision of the trial judge to admit a video that was made between 9 and 14 years after the incidents that gave rise to the charges. .The Court found that the delay was reasonable in view of the complainant’s developmental delays and the difficulties she had to overcome before she was able to deal with the issues,

[66]      In R. v D.T., 2017 ONSC 1953 (CanLII), K.C. Campbell J. found the total delay between the conclusion of the offences and the Complainant’s video recorded statement was somewhat less than three years... Justice Campbell noted (at para. 16) there are a number of judicial authorities that have held that delays of this length are “reasonable” within the meaning of s. 715.1 of the Code. In concluding the video was taken within a reasonable time, Justice Campbell considered the following evidence (at para. 17):

[67]      D.T. was referenced in R. v. S. (J.), 2017 ONSC 6363 (CanLII) wherein Crown sought to introduce into evidence a video statement of the complainant made at least 6.5 years after the alleged incident underlying the sexual assault charges against her father.  The complainant was very young: between four and five years of age.  Justice Dunphy of the Ontario Court of Justice held that while the delay between the statement and the alleged offence was far beyond what the jurisprudence had found reasonable, the quality of the memory preserved in terms of detail was relatively high.  The Complainant described in reasonably vivid detail an incident that occurred when she was between four and five years of age where her father had allegedly required her to perform an act of fellatio upon him.

[68]      In R.A.H., 2017 PECA 5 (Canlii), the PEI Court of Appeal refers to the case of R. v. T.J.A., 2016 OJ No. 2876, where the Ontario Court of Justice found a video made 20 months after the alleged offence was not made in a reasonable time where there had been 20 months between the child’s initial disclosure and her statement.  In R. v. A.G.B. (No. 3), 2011 ABPC 260 (CanLII), the Alberta Provincial Court found a video statement made four years after the incident inadmissible as the passage of time was likely to have adversely affected the complainant’s memory.  The complainant was 10 years old when the alleged offence occurred, 11 when she made her first disclosure, 14 when her statement was video recorded and 16 by the time she testified at trial.  The trial judge commented she would have fully progressed through her adolescent years between the date of the offence and the date of trial; likely by the date of her video recorded statement.  Judge Rosborough found the passage of time was likely to have adversely affected the complainant’s memory of the events which was borne out by the brevity of her statement and her inability to recall collateral facts.  (A.G.B. was referenced in R.A.H. and by Justice Fitch in T.R.J.)

[69]      In cases such as the one at bar where the Complainant alleges repeated acts of sexual abuse over a period of time, the operative starting date of the period which must be reasonable is the probable date of the last incident of abuse: R. v T.R.J., 2014 BCSC 1611 (CanLII), citing at para. 72 R. v. Archer (2004), 2005 CanLll 36444 (ON CA) at paras. 74–75.  In R. v. Archer, the Court of Appeal held that where an offence is “ongoing” the relevant question is not the delay between when the first allegation is alleged to have occurred and the disclosure but from the date of the last alleged incident.  In the Archer case, the period from the last alleged incident to disclosure was three weeks and the abuse was alleged to have been ongoing for five years.  Doherty, J.A. states in part:

[70]      Considering Moldaver J’s factors set out in S.(P):

[71]      For the purposes of voir dire #1 I find on a balance of probabilities one of the last alleged incidents of sexual touching the complainant described occurred on or about November 5, 2016, in Prince Rupert, B.C.  I do, however, acknowledge S.H. told Constable Heuberger the last time K.S.T. touched her was before Christmas, which I understood to mean touched her sexually before Christmas 2016.  The incidents S.H. complained of were all part of a continuum joined together by the similarity of the events and the identity of the parties involved.  The time involved should be measured from the time of the last incident which contributed to the ongoing offence which is alleged to have occurred within two months or so of S.H. giving her statement.

[72]      Considering those factors cited by Moldaver, J., in S. (P), and the fact the last incident complained of occurred within two months or so of S.H.’s video recorded statement, I am satisfied S.H.’s statement was made within a reasonable time.

[73]      For the purpose of voir dire #2, I find on a balance of probabilities, the alleged incidents to which S.D. testified as to having witnessed occurred:

[74]      As S.D. was 11 when she gave her statement and 11 at the time of the incidents she said she witnessed, the incidents she described occurred within months of her providing her statement.  Accordingly, I am satisfied S.D.’s statement was made within a reasonable time.

[75]      The reference in s. 715.1 to “describes the acts complained of” does not mean the video recording may only include description of the actual assaults in the indictment before the Court, and not any other information, contextual or otherwise.  In R. v. Scott (1993), 27 C.R. (4 ) 55 (Ont. C.A.), the Court held that a description of “the acts complained of” may include:

[76]      In R. v. Meddoui (1990), 1990 CanLII 2592 (AB CA), 61 C.C.C. (3d) 345 (Alta. C.A.) para 69, the Court held “acts complained of” may include a description of the assailant and further that, “A Judge should not exclude on this ground for occasional excess, and should attempt excision before exclusion”.

[77]      The videotaped statement must describe the “acts complained of” and references to other offences or hearsay statements made on the videotaped are not rendered admissible through 715.1.  Fair editing may be used by the trial judge as part of the inherent duty to control the proceedings: R. v. A. (J.F.) (1993), 1993 CanLII 14667 (ON CA), 82 C.C.C. (3d) 295 (Ont. C.A.)

[78]      In R. v. R.E.M., [2002] B.C. J. No. 185 (B.C.S.C.) 43, Romilly J. acknowledges that it is preferable for police officers in s. 715.1 interviews to ask simple, open-ended questions although he recognizes there are some situations where it is necessary to ask leading questions.

[79]      The Ontario Court of Appeal in R. v. Toten (1993), 1993 CanLII 3427 (ON CA), 83 C.C.C. (3d) 5 (Ont. C.A.), para 55, held that the inclusion of questions that have investigative or therapeutic value but which do not “describe the acts complained of” may, if effective and fair editing is not possible, necessitate the exclusion of the entire statement.  References to other offences or hearsay statements are not admissible.  The trial judge may edit the tape. Judges have always had the power to edit statements and other forms of testimonial evidence to avoid prejudice and irrelevancies where the editing process can be achieved without distorting the nature of the evidence adduced.

[80]      In this case, the Complainant does not refer to any other incident of assault other than that charged in the indictment before the court.  The acts which S.H. complains of are referred to above and include:

[81]      In F. (C.C.), the Supreme Court of Canada ruled on the test to be applied to determine if the videotaped statement of a child had been adopted pursuant to s. 715.1 of the Code.  Cory J. on behalf of the Court stated at pp. 239 - 240:

[82]      In F. (C.C.) the Supreme Court held the requirement for “adoption” is met when the child attests he or she was attempting to be truthful at the time that the statement was made.

[83]      In this case, the Complainant, S.H. testified she was being truthful at the time the statement was made and has therefore adopted the contents of her video recording.

[84]      Similarly, S.D. also testified that when she talked to the police officer on January 8, 2017, she told her the truth, and has therefore adopted the contents of her video recording.

[85]      I am satisfied the Crown has established on a balance of probabilities that both S.H. and S.D. have adopt the contents of the video recording.

[86]      A judge can refuse to admit a video under s. 715.1 if it would interfere with the proper administration of justice.  An example of such interference is if the interview has been rehearsed or scripted: R. v. Toten 1993 CanLII 3427 (ON CA), at para. 65.  (Even though the Supreme Court of Canada corrected Toten on the issue of what constituted adoption of a videoed statement, it did not over-rule the other findings of the Ontario Court of Appeal on the interpretation of s. 715.1: F. (C.C.).

[87]      Similarly, subsection(1) of s. 715.1, together with the Court’s general powers, are sufficient to authorize the editing of any video to remove extraneous evidence, such as, for example, evidence concerning matters other than the acts complained of or evidence that is inadmissible for any other legal reason: paras. 55-57.  In R. v. Walsom, 2017 ONSC 2159, Hill J. excluded the video-statement of a 21 year old witness who did not testify that she made efforts to tell the police the truth in her interview, and in fact, testified that she was hallucinating and not been “all there” in her head.

[88]      Even before s. 715.1 was amended to include the proviso contained in Condition #5, the trial judge had the discretion to exclude the video where the prejudicial effect of admitting it would outweigh its probative value.  In L. (D.O), L’Heureux-Dubé J. referred to a number of factors which a trial judge could take into account in exercising his or her discretion to exclude a videotaped statement:

[89]      In F. (C.), supra, Cory J. referred to these factors but commented that the cases where admission of the video would result in unfairness to the accused would be relatively rare (at par. 51).

[90]      In R. v. Quash, 2013 BCSC 2498, Madam Justice Griffin discussed the issue of reliability: She states:

[91]       In R. v. Castillo Cortes, 2013 ABCA 314 (CanLII), the Alberta Court of Appeal made the following observations about collusion in the context of a child sexual assault against two boys:

[92]      The Defence argues that I ought to exercise my discretion and exclude video recordings under s. 715.1 on the basis it would interfere with the proper administration of justice.  The Defence bases his argument on a constellation of a number of factors, one of which was Constable Heuberger’s failure to have S.H. and S.D. swear or affirm or promise to tell the truth.  The officer did not impress upon them the gravity and seriousness of the matter.  In this regard, Mr. McCarthy referred to the decision in R. v. Rohrich, 2009 CanLII 51510 (ON SC), a decision of Justice Lalonde of the Ontario Superior Court of Justice, wherein he stated:

[93]       Another deficiency militating toward exclusion is the lack of evidence in S.H.’s statement as to when the alleged sexual offences occurred.  The Defence argues that S.H.’s evidence in the video recording she was 10, 11 or 9, is no more than a guess. S.H.’s vague or equivocal answers as to when the events occurred are exacerbated by her lack of present recollection of the events.  Cross-examination is ineffective in eliciting any further information about the allegations because S.H.’s typical response is she does not remember.  In some cases, S.H. is simply agreeing with Constable Heuberger’s suggestions as to when and where various events occurred.  The combined effect of the dearth of particularity and S.H.’s lack of present recall seriously impairs K.S.T.’s ability to make full answer and defence.

[94]      With respect to Constable Heuberger’s decision not to ask S.H. or S.D. to promise to tell the truth, I note this is not a statutory requirement.

[95]      In Quash, Justice Griffin rejected a similar argument as a basis for excluding the video recorded statement.  Justice Griffin states at paras. 174 and 175:

[96]      In applying Justice L’Heureux-Dubé’s criteria referred to in L. (D.O.), I find as follows:

[97]      In my view the lack of specificity of S.H.’s allegations in her video recorded statement are matters which will impact the weight and not admissibility.  Moreover, there are a number of markers in S.H.’s evidence to provide the accused with information as to where and when the alleged incidents occurred.  For example, S.H. indicated they occurred at the T./. residence in [omitted for publication] in the room where K.S.T. measured the girls, at the Sandman Inn in Prince George, at the Highliner Inn in Prince Rupert and at the [omitted for publication] and during rides on the side-by-side quad. These references provide K.S.T. with information as to where the incidents are alleged to have occurred.  The Information provides K.S.T. with dates as to when the incidents occurred.  R.A.H. and S.D. testified as to when S.H. was staying at the Highliner Inn in Prince Rupert with K.S.T. and M.G.  The evidence it took place in November 2016, is corroborated with the affidavit evidence of David Bailey.

[98]      In concluding the video recorded statements ought to be admitted, I am mindful that s. 715.1 is a remedial provision intended to enhance the court’s truth-seeking function in criminal proceedings involving a child complainant who has suffered sexual abuse: L. (D.O.), para 36.  Section 715.1 seeks to include the experience of young complainants in the criminal justice system while ensuring that an accused person’s right to a fair trial is carried out in accordance with the principles of fundamental justice. While the primary purpose of section 715.1 is the attainment of truth, the section is particularly focused on the needs of children and the special protections that they require in order to expose that truth.

[99]      I am also mindful of the comments of Doherty J.A. in Toten, at para. 24-26 where he discusses the confusion, intimidation and trauma that a young person can feel in testifying in court and the Supreme Court of Canada’s direction to trial judges about receiving evidence from children concerning sexual offences.  In R. v B. (G.) 1990 CanLII 7308 (SCC), [1990] 2 SCR 30, as cited Mr. Justice Romilly in R.E. M., 2002 BSC 162, at para. 21

[100]   In R. v. Meddoui 1990 CanLII 2592 (AB CA), at para. 69, the Court held “acts complained of” may include a description of the assailant and further that “a Judge should not exclude on this ground for occasional excess, and should attempt excision before exclusion”.  In Toten at para.  55, the Ontario Court of Appeal held the trial judge may edit the video-taped subject of an s. 715.1 application.  Judges have always had the power to edit statements and other forms of testimonial evidence to avoid prejudice and irrelevancies where the editing process can be achieved without distorting the nature of the evidence adduced.

[101]   Neither the Crown nor the Defence has specifically requested editing of any portions of S.H. and S.D.’s video-recorded statement, other than a discussion Constable Heuberger had with R.A.H. after S.D.’s formal statement concluded.  However this is something which will still be addressed.

[102]   I invite submissions of counsel as to any editing they believe is required.