Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2):
Case Law Review and Perceptions of the Judiciary
2. Review of Bill C-2 Case Law and Legal Literature (cont'd)
- 2.2 Accommodating Child Witnesses: Introduction (cont'd)
2. Review of Bill C-2 Case Law and Legal Literature (cont'd)
2.2 Accommodating Child Witnesses: Introduction(cont'd)
2.2.3 Preventing Questioning by Self-represented Accused: s. 486.3
The Criminal
Code s. 486.3(1) now specifically provides that an application can be made
by the prosecutor or a person acting on behalf of the child to prohibit a
self-represented accused from personally cross-examining a witness under age 18
years. Further, s. 486.3(2) provides that an application may be made to prevent
a self-represented accused from personally cross-examining an adult witness,
and that the court shall grant an application if the judge is of the opinion
that such an order is needed "to obtain a full and candid account from the
witness of the acts complained of."
Under s. 486.3(4) there is a presumption
that an order preventing in-person cross-examination of the complainant will be
made in any case involving a charge of criminal harassment. If an order is made
under s. 486.3 to prevent cross-examination by a self-represented accused, the
court "shall appoint counsel"
for the purposes of the cross-examination. No
order shall be made under s. 486.3 if the court concludes that the "proper
administration of justice"
requires personal cross-examination.
Prior to the coming into force of this provision in January 2006, the accused could only be precluded from cross-examining in proceedings where the accused was charged with sexual or violent offences. This provision now applies to any criminal proceeding.
There is no
reported case law on circumstances that would justify a finding that the "proper administration of justice"
would "require" that the accused conduct
cross-examination in person. Given the wording of the provision, Bala et al.[76] argue that it would be
difficult for the accused to satisfy the test. There might be situations in
which an application is made at a very late stage in the proceedings and an
order would necessitate an adjournment that should not be granted due to prior
delays.
In R. v. Mohammed [77] and R. v. A.M.,[78] the old provision (s. 486(2.3)) was used to prevent an accused parent from cross-examining his own child. In R. v. A.M.,[79] Feldman J., in interpreting the prior subsection 486(2.3), wrote as follows.
Its language is mandatory, subject to the evidence demonstrating a contrary requirement. In practical terms, for the Crown application to fail, the evidence must show that the right of this accused to cross-examine his own young children represents, in the circumstances, a higher value than Parliament's recognition of the vulnerability of children to be overwhelmed by the criminal process to the extent that the court receives less than a full and candid account of the complaint.
In R.
v. G. (D.P.)[80] the accused opposed a request to appoint counsel as his "past experiences
with lawyers … left him without confidence that the questions he wishes to ask
will be put the witnesses."
The accused added that since he was the cousin of
the four child witnesses, they would not have difficulty in communicating with
him, and that they would be less intimidated by him than a lawyer. He also
submitted that the judge should interview the children to ascertain their
wishes. The judge noted that a judicial interview is not contemplated by the
section, held that in light of the presumption in section 486.3, counsel should
be appointed. Further, the court noted that it would entertain a motion from
counsel appointed for the purposes of cross-examination to postpone the date of
trial due to the uncertainty of whether appointed defence counsel would have
sufficient time to prepare adequately given the close proximity between the
Crown's application and the date the trial was scheduled to commence.
The legislation
does not specify how the appointment of counsel is to be made or how payment is
to be arranged. Prof. Jula Hughes has criticized s. 486.3 for being "extremely
sparse on procedure"
and advocated Parliamentary action to "fill the gap."
[81] In the absence of legislative
direction there has been some significant variation in the case law about the
process for retaining and paying counsel.
The court in R. v. Leon [82] held that the former provision did not allow a judge to directly order that the provincial Legal Aid plan provide funding or counsel for purposes of cross-examining the child where the accused is unrepresented. However, the court held that the section allowed the court to appoint independent counsel for the purpose of cross-examining the child.
In R. c. B.S., [83] Bellehumeur J. appointed counsel under the former provision to cross-examine child witnesses in place of the accused, despite the objection of the accused. The judge initially requested a legal aid staff lawyer to attend, but that counsel declined to act as the accused was financially ineligible for legal aid. The judge was of the view that two options were available: to grant a stay until the state provided funded counsel to cross-examine, or to immediately appoint a lawyer who was present, sent by the Barreau du Quebec (the equivalent of the Law Society) and ready to cross-examine. The Court noted that it was of prime importance to have counsel undertake the cross-examination in a timely manner, which required an order that the Attorney General of Quebec would pay the fees and expenses of counsel[84]. In R. c. B.S.,[85] the Quebec Court of Appeal dealt with an appeal of some aspects of the decision of Bellehumeur J. The Appeal Court held that while it is within the power of the court under this provision to select a lawyer to represent the accused for the purposes of cross-examination, it is not within its power to determine the fees to be paid by the Ministry of the Attorney General, as this would be an infringement on the executive and legislative power of the Ministry. The Court of Appeal stated that an order selecting legal counsel for a self-represented accused should be accompanied by a stay in proceedings in order for the Ministry to make payment arrangements.
In R. v. Papequash,[86] an order had been made for legal representation for the purpose of cross-examination of a child, and the accused had not contacted any lawyers. Gower J. directed the Crown Attorney to contact a prospective defence counsel in order to find someone available for the trial date (10 days away) and willing to accept the Crown's rate of pay.
In R. v. Peetooloot,[87] Gorin
Terr. Ct. J. was also faced with a situation where an order for representation
had been made but the accused failed to retain counsel. The judge directed the
clerk of the court to make the necessary arrangements to retain counsel, and
suggested that the fees would be paid at counsel's "full private rate."
As
noted by the judge, the court did not have the jurisdiction to order that a particular government department or
board pay a lawyer's fees, so the court ordered that a transcript of the
decision be sent to Legal Aid, the Territorial Department of Justice, Court
Services, and the Federal Department of Justice. The judge continued: "However,
I will point out the obvious, and that is that ultimately it will be the
taxpayer who will be picking up the tab regardless of which department or board
pays."
Prof. Jula Hughes characterized this remedy as "both creative and
eloquent on the absurdity caused by the legislative lacuna."
[88]
In R. v. Civello,[89] per Jennis J made an order under s. 486.3 stipulating that remuneration of
counsel was to be at the "reasonable private rate"
of $250/hr. The court
requested that the local Criminal Lawyers Association provide a list of senior
counsel willing and able to do this work to the accused. The accused was
offered a choice from this list, and if he was unwilling to do so, the judges
would make the selection for him. While it is preferable for the accused to
have a role in the selection of counsel, his failure to do so should not result
in a delay of the proceedings.
A theme that runs through these cases is that, since the legislation is silent about the method of appointment and payment of counsel in s. 486.3, the court must assume implied powers in order to give this provision effect in a manner that accords with the principles of fundamental justice. Understandably, judges are reluctant to be involved in the relationship between the accused and counsel, and there are no reported cases in which the judge has directly selected counsel for an accused.
The limited representation of an accused solely for the purpose of cross-examination of a child witness is a challenging role for counsel. In R. v. Qamaniq,[90] Johnson J. observed that where appointment of counsel to cross-examine can be anticipated, it is preferable for counsel to be appointed well in advance of the trial in order that the accused's defence is not prejudiced or compromised by lack of adequate preparation. Subsection 486.3(4.1) provides that only the judge who will preside over the proceedings may hear the application, but it may be dealt with before the proceedings begin. The application should be on notice to the accused. If the application is only made at the time of trial, it may be necessary for there to be an adjournment to allow counsel to be retained and to have time to prepare.
Section 486.3 has
not completely barred the cross-examination of a child witness by a
self-represented accused. In R. v. Varcoe,[91] the Ontario Court of Appeal held that no substantial
wrong or miscarriage of justice had occurred due to the trial judge's decision
to not appoint counsel and to allow the accused to cross-examine the
16-year-old complainant. The court seemed to place significant weight on the
complainant's age as well as the fact that she had consented to the
cross-examination, though also noting that the way in which the trial judge had
dealt with s. 486.3 was "less than satisfactory,"
and suggesting that counsel
should have been appointed. (A new trial was ordered on other grounds.)
2.2.4 Video-recorded Evidence: ss. 715.1 and 715.2
The current s. 715.1(1),
which governs the admission of video-recorded statements of children, is quite a
bit broader than the provision that was in effect prior to January 2, 2006. The
present provision applies to any offence, not just a sexual offence, and
creates a presumption that a recording of an interview with any child witness will
be admitted, provided that it was made "within a reasonable time"
of the
incident. Further, s. 715.2 was added and now provides that if a witness "may
have difficulty"
in communicating his or her evidence "by reason of a mental or
physical disability,"
a video-recording of an interview with that person made
within a reasonable time within the alleged offence shall be admitted if the
witness adopts the contents. Under the present ss. 715.1 and 715.2 the onus is
on the accused to establish that the admission of a video-recording that meets
the criteria for admission should be excluded as its admission would "interfere
with the proper administration of justice."
2.2.4.1 The Presumption of Admissibility under Bill C-2
In R. v. Ortiz,[92] Pugsley J. stated that where the video-recorded evidence meets the statutory framework for admission, it would be:
incorrect to import into the plain meaning of the current version of s. 715.1 a requirement that the Crown establish that the witness would be traumatized by giving fully live evidence or that the witness is a vulnerable witness. Significantly, Parliament imported such pre-requisite into the wording of the newly amended companion section s. 715.2 dealing with adult complainants and witnesses. Clearly s. 715.1 recognizes that witnesses under age 18 are presumed to be capable of being traumatized and/or are vulnerable by virtue of their age alone. The Crown need not establish these as pre-requisites to admission under the section.
2.2.4.2 “Adoption” by the Witness of the Contents
In R. v. F.(C.C.),[93] Cory J. considered the interpretation of the term "adopts" in s. 715.1 of the Criminal Code, holding that it suffices that the complainant recalls giving the statement and testifies that he or she was then attempting to be honest and truthful.[94] The complainant need not have a present recollection of the events discussed in the videotape, and the test of adoption should not be the final determination of reliability, but rather a means of ascertaining whether the videotape meets the threshold degree of reliability required to admit it for the truth of its contents.[95]
In the recent case of R. v. Vanderwerff,[96] Read J. summarized much of the previous jurisprudence on the concept of "adoption":
a witness could be said to adopt the contents of the videotape where, whether or not she recalls the events discussed, she does believe them to be true because she recalls giving them and her attempt to be honest and truthful.
In R. v. F.(L.W.),[97] O'Connor
J. placed a "caveat" on the admission of a video-recorded statement, ruling
that any portions of the statement that the child was not able to "verify…
that are prejudicial to the accused… must be edited out."
The judge left it
to counsel to do this, stipulating that if they could not agree he would hold a
further voir dire to deal with this issue.
2.2.4.3 “Made within a Reasonable Time after the
Alleged Offence”
In considering the meaning of the above phrase, L'Heureux-Dubé J. in R. v. L.(D.O.), [98] provided the following guidance:
… What is or is not "reasonable" depends entirely on the circumstances of a case… In reaching a conclusion as to the reasonableness of time, courts must be mindful of the fact that children, for a number of reasons, are often apt to delay disclosure. …Further, depending on where the child resides and whether facilities are available, as well as the necessity of prior investigation to ensure the seriousness of the allegations, some delay will necessarily accrue. On the other hand, such determination must also take into account social science data which makes clear that recollection decreases in accuracy with time. …The reasonableness of the delay in gathering such evidence may further depend on a number of factors which only a case-by-case analysis will be able to determine. [99]
Factors in assessing whether the tape was made within a "reasonable time" may include:
- the age of the witness;
- the nature of the offence;
- efforts made to obtain earlier statements;
- delay by the complainant in disclosing or reporting the offences;
- facilities available in the area where the complainant or witness resides; and
- whether prior investigation was necessary to determine the seriousness of the allegations.
In R. v. Mulder[100] statements from 3 complainants age 10 to 12 recorded approximately 11 months after the alleged incidents were held admissible. The boys did not disclose their alleged abuse until a few days before the interview. Miller J. observed that while it would be preferable to have recorded statements from the complainants closer in time to the alleged offences, but noted that 11 months was still much closer in time to the alleged offences than was the viva voce testimony of the complainants. The recorded statements are likely to be more accurate recollections of the events. The court held that none of the complainants were so young that the delay raised obvious concerns about their ability to accurately recall the incidents with the accused. Further, there was ample evidence from which reasons for a delay in disclosure could be inferred, relating to the fact that the accused was in a position of authority over the complainants.
In R. v. Bortei,[101] the accused argued that since the alleged assaults went on for eight years, the videotaped statements made by the complainants should not be admissible, as there was no way to determine whether they had been made within a "reasonable time" after the alleged events occurred. Justice R.J. Smith admitted the videotapes, ruling that they were made within a reasonable time of the last alleged acts (within 2 months), and stating that the probative value of the evidence outweighed any possible prejudice towards the accused. Further this case provides an example of videotaped statements which were admitted into evidence despite the fact the complainants were 16 and 20 years of age respectively at the time of trial. The complainants were minors when most of the alleged acts occurred.
2.2.4.4 “Acts complained of”
The phrase "the acts complained of" was already interpreted before 2006 to include a description given by the complainant of her alleged assailant and statements made by the attacker during the offence.[102] In R. v. Ramasaroop,[103] it was also held to be broad enough to be used to admit a video-recording of a statement from a youth who had not directly observed the alleged assault, but who described the actions of the accused shortly after the alleged assault and helped to place the accused at the scene of the alleged assault.
2.2.4.5 The Weight of a Video-recording
In R. v. F.(C.C.),[104] Cory J. provided guidance on the issue of how the videotaped evidence should be viewed by the courts.
… There are several factors present in s. 715.1 which provide the requisite reliability of the videotaped statement. They include: (a) the requirement that the statement be made within a reasonable time; (b) the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor, and assess the personality and intelligence of the child; (c) the requirement that the child attest that she was attempting to be truthful at the time that the statement was made. As well, the child can be cross-examined at trial as to whether he or she was actually being truthful when the statement was made. These indicia provide enough guarantees of reliability to compensate for the inability to cross-examine as to the forgotten events. Moreover, where the complainant has no independent memory of the events there is an obvious necessity for the videotaped evidence. In Meddoui, it was recommended that in such circumstances, the trier of fact should be given a special warning […] of the dangers of convicting based on the videotape alone. In my view, this was sage advice that should be followed.
If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not render those parts inadmissible. Obviously a contradicted videotape may well be given less weight in the final determination of the issues. However, the fact that the video is contradicted in cross-examination does not necessarily mean that the video is wrong or unreliable. The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video more reliable than the evidence elicited at trial. In R. v. B.(G.), [1990] 2 S.C.R. 30 at para 44 to 55…, Wilson J. stated that:
… a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. …While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.
… Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to the weight which should be attached to the videotape and not to its admissibility.
In R. v. J.R.,[105] the
Ontario Court of Appeal upheld a conviction based largely on the evidence in a
video-recorded interview. The trial judge accepted that the video-recording of
a 12-year-old complainant's statement to the police two days after the alleged
assault was more "reliable and accurate"
than her testimony at trial, which was
considered to be "embellished somewhat,"
as her memory had been "effectively
tainted" by conversations with her mother, who was "strongly hostile" to the
accused, her former boyfriend.
In R. v. Vanderwerff,[106] the
two complainants were 7 and 8 years of age at the time of the alleged incidents
of sexual abuse, and videotaped interviews were conducted by the police within
a week of the last incident. The trial occurred more than two years later and
there were some inconsistencies between their testimony and the recorded
statements. In convicting the accused, Read J. observed: "I attribute these
inconsistencies to [their] youth and the passage of time."
In R. v. M.G.,[107] the Ontario Court of Appeal dealt with a case where there were significant
inconsistencies between the videotaped statement of a girl and her testimony at
trial. The accused was convicted of the physical and sexual assault of his
daughter, and of physical assault on his son. A video-recorded statement was
taken shortly after the girl's initial disclosure at the age of ten, some three
or four years before the trial. The girl's allegations about the sexual abuse "evolved somewhat over time"
and there were inconsistencies between the trial
testimony and the video-recorded statements. The trial judge accepted that when
she gave the video-recorded statement to the police the girl did not understand
the term "sexual intercourse" when questioned in the interview. Accordingly,
the judge accepted her testimony at trial that intercourse had occurred, even
though it was not mentioned in the video. The trial judge accepted the
complainant's explanation of inconsistencies and "odd features" of the
statements, in part because of the girl's "immaturity" and relied on the fact
that the girl offered detailed descriptions of the sexual acts. The Court of
Appeal ruled that the trial judge made a proper assessment of the
inconsistencies between the videotaped statement and the trial testimony, and
did not consider them separately, and upheld the convictions.
After the videotaped evidence has been admitted, any questions which arise concerning the circumstances in which the video was made, the veracity of the witness' statements, or the overall reliability of the evidence, will be matters for the trier of fact to consider in determining how much weight the videotaped statement should be given.
In R. v. Purdy,[108] the British Columbia Court of
Appeal upheld the trial judge's decision to admit a videotape of a suggestive
police interview with a 9-year-old child, where the court concluded interview
was "conducted with an objective other than being a careful inquiry into
relevant evidence,"
rather to obtain an emotional plea from the child. The
controversial interview was made to obtain an emotional plea by the child to
her father that could be edited so as to appear that the child was begging him
to say why he had killed her mother and then shown to the accused. The police
had provided the girl with information about the killing, and the defence
argued that this conduct was manipulative and affected her memory. In terms of
assessing threshold reliability and deciding to admit the tape, the trial judge
was satisfied that the girl was not manipulated into believing a particular set
of facts, and could distinguish between what she had been told and what she had
observed. The trial judge was satisfied that the jury was in a position to
assess the probative value of the child's evidence. The Court of Appeal
accepted the evidence was controversial, but concluded that the accused was
able to explore the frailties of the child's evidence through cross-examination
and that the jury was alerted to the significance of the procedure and the risk
of suggestion that it presented.
In R. v. B.(D.)[109] where the Saskatchewan Court of Appeal upheld the trial judge's decision to admit the videotaped statement of the complainant into evidence at trial despite the concerns raised by the accused's counsel about the "friability" of the videotape evidence, including the fact that the interviewing police officer did not caution her about the importance of truth telling and asked some leading questions. The Court of Appeal found that the trial judge, in admitting the videotape, acknowledged that the concerns raised by counsel were to be taken into account when weighing the evidence presented, and ultimately did not give any weight to any aspect of the videotape that she did not clearly state in the affirmative and in response to an appropriate question.
In R. v. Challu[110] the Shaughnessy J. of the Ontario Superior Court upheld the conclusions of the trial judge about the admissibility and weight of video-recordings of statements made by two children, aged 10 and 12 at trial, about alleged physical abuse by their father. The trial judge was aware of the internal inconsistencies within the statements and the suggestibility of the children in finding the tapes sufficiently reliable to be admitted. The children in this case were hesitant when answering questions and had to be asked some leading questions, but their mother (the wife of the accused) had encouraged them not to tell the police what had happened to them prior to the interview.
It was emphasized
in R. v. Aksidan [111] that a videotaped statement admitted under s. 715.1 becomes
a part of the complainant's evidence-in-chief. Accordingly, the videotaped
statement is not properly characterized as a prior consistent statement. As
such, it cannot be used to "bolster the credibility"
of the complainant or to "corroborate" her testimony. On the contrary, the video-recorded statement and
the in-court testimony must be weighed and evaluated as a whole, and a new
trial was ordered by the British Columbia Court of Appeal as a result of the
trial judge convicting the accused and stating that the complainant's testimony
in court was "materially corroborated by her own statement given to the police
shortly after the events."
In R. v. K.P.S.,[112] the British Columbia Court of Appeal also ordered a new
trial as a result of the trial judge stating that one of the reasons for
convicting the accused was that there was "consistency in the sexual assault
allegations when one examines… [the complainant's] viva voce evidence
compared to her two videotaped statements."
Kirkpatrick J.A. commented that a
trial judge may use the videotaped statement to "supplement the evidence of a
child who is inarticulate or forgetful at trial"
in order to support a
conviction. And the trial judge may use the video-recordings "to assess the
credibility of the complainant when they are inconsistent with her viva voce evidence"
in order to raise a reasonable doubt and acquit the accused. "However… the trier of fact may not use a s. 715.1 videotape to bolster
the credibility of a complainant."
In R. v. B.(A.),[113] the Crown sought to have the
complainant give the majority of her evidence-in-chief by way of video-recording
admitted pursuant to section 715.1. The defence argued that the Crown had
failed to satisfy the "necessity hurdle,"
as it was not established that the
child was incapable of giving her testimony in court. Gordon Prov. Ct J. recognized
that section 715.1 creates a statutory exception to the hearsay rule, and it is not based on the decisions of the Supreme Court of Canada in Khan and Smith. The legislation does not require the Crown to establish the "necessity" for admission of a videotape. The court observed that the evidence
does not become super evidence, credible evidence or any other form of special evidence. It simply becomes evidence upon which counsel for a charged person is able to cross-examine, so the reliability issue is dealt with by virtue of the legislation…. It cannot be used by the Crown… in a manner to enhance the complainant's credibility. All it does, if it is admitted, is permit the Crown to not ask the same questions in direct examination that were asked by a police officer at an earlier occasion. [114]
The court noted that s. 715.1 does
not require consideration of the "necessity" for the admission of the recording,
and for that reason, "while it may very well be that the complainant does not
need the assistance of the videotape… that is not relevant to its admissibility
into evidence."
As noted above, Cory J., in R. v.
F.(C.C.) [115] suggested that a trial judge should provide a special warning to the trier of
fact relating to the danger of convicting solely on the strength of a
videotaped statement; if the child no longer has any recollection of the
events, or is unable to answer questions in cross examination, this may affect
the weight to be given to the videotape, though not its admissibility. In R.
v. Wing, [116] the
Ontario Court of Appeal held that, absent special circumstances (such as a
child being unable to answer questions about the alleged events during
testimony), it is inappropriate for the trial judge to give "an instruction to
the jury not to use the complainant's s. 715.1 videotaped statement to bolster
the other evidence she gave at trial."
The Court of Appeal wrote:
In our view, it was unnecessary for the trial judge to give an instruction to the jury,… .not to use the complainant's s. 715.1 videotaped statement to bolster the other evidence she gave at trial eight months later. Importantly, the Criminal Code specifically takes a child's s. 715.1 statement out of the category of a prior consistent statement and makes it part of her trial evidence. In accordance with that provision, the trial judge specifically told the jury that the video statement would be
"part of the evidence"before it was played. In his charge at the end of the trial, he again told the jury that the statement was"part of [the complainant's] evidence". In addition to other instructions given about assessing the complainant's evidence, the trial judge specifically explained that the procedure was designed to help young people to give evidence and that the jury could not use that procedure to conclude the accused was guilty of the offences charged.In our view, there is nothing about the complainant's evidence in this case that would require the requested caution. Immediately after adopting her s. 715.1 statement as true, the complainant responded to the Crown's question at trial about "what else" the appellant did to her. In her response, the complainant repeated some aspects of the appellant's conduct. However, her repetition was no different than occurs in the usual trial where a witness is asked more than once, both in examination in chief and in cross-examination, about the event in light of the additional allegations against the appellant.
In R. v. McLeod, [117] ( QL ), the complainant, who was age 3 when she gave her
video-recorded statement, adopted the statement at the time of the trial, a
year later, only to recant critical aspects on the second day of her testimony
(some 10 weeks after the first day). In the video the girl described being
assaulted by her mother. In assessing the credibility of the complainant's
section 715.1 statement, Brewer J. observed that the "video-taped statement
possesses some circumstantial guarantees of trustworthiness,"
including the
fact that it was made "very close in time to the events described,"
that it was
given in a relaxed environment, there were no suggestive questions, and the
child had no apparent motive to fabricate. However, the fact that the complainant
had given different accounts of the events throughout her testimony meant that
she was a witness whose evidence "must be viewed with a great deal of caution."
Based on concerns about the complainant's credibility and reliability, the
court was not prepared to place any weight on her section 715.1 statement "except where it was confirmed by other evidence."
However, the confirmatory
evidence "need not directly implicate the defendant or confirm the Crown
witness' evidence in every respect"
, but it only needed to "touch a relevant or
material aspect"
of the child's testimony. In this case, medical evidence about
the injuries of the complainant and testimony from a sibling about the mother's
anger and yelling were sufficient for the court to convict the accused of
assaulting her daughter.
It has been a
common practice for some police to ask a child at the start of an investigative
interview about their understanding of the concepts of truth and lie, and to
have the child promise to tell the truth before answering questions. While a
police discussion about
the importance of truth telling and having the child promise to tell the truth
is a useful practice (especially if an issue arises of the child recanting and
the Crown wants the statement admitted as a "K.G.B. statement"
), this
procedure is clearly not necessary for admission under s. 715.1. In R. v. F.(J.),[118] in
a video-recorded interview that was admitted in evidence, the 7-year-old
complainant was asked questions by a police interviewer about her understanding
of the difference between the truth and a lie. The court accepted the child's
testimony and convicted the accused, with Ho Prov. Ct. J. commenting: "not
being able to provide a satisfactory definition of the difference between a
truth and a lie does not negate the ability of C.S. to provide reliable
evidence to the court."
[119]
In R. v. C.L.P.,[120] a
boy who was 5 years old disclosed abuse by a babysitter to his parents, and an
interview with a police officer was video-recorded two weeks later. By the time
of trial, more than a year later, the child recalled little of the incident,
and he did not repeat the allegations while testifying. Although he testified
that he told "the truth" when being interviewed by the police officer, in an
interview with Crown counsel prior to the trial date the complainant had said
that the video was "maybe not [true], I don't know the truth."
Baird Ellan
Prov. Ct. J. acquitted the accused, observing that "courts must use caution in
relying upon the unsupported video evidence of a child,"
especially if the
child "does not articulate the complaint while testifying."
2.2.4.6 S. 715.1 in Jury Trials: Providing the Jury with a Copy
A trial judge has
discretion to permit the jury, during its deliberations, to view a videotaped
statement admitted under s. 715.1 of the Code.[121] In R. v. N.(R.W.),[122] the
Ontario Court of Appeal held that the trial judge did not err in not providing
the transcript of the cross-examination of the witness to the jury during its
deliberations, though the witness's videotaped statement had been provided. In
that case, however, the cross-examination did not undermine the witness's
evidence. The appellant denied outright that the alleged events had occurred,
rather than offering a contradictory version. As well, the trial judge had
emphasized that the videotaped statements ought not to unduly influence the
jury's deliberations. As a matter of practice, if the judge decides that the
jury will have a copy of the recording, it clearly would be preferable for the
jury to also have a transcript of the cross-examination. If the jury requests
the video and the judge decides not to provide them with this evidence, "the
ideal response might… include… a reminder that the jury should be alive to other evidence from the complainant,
including the cross-examination."
[123]
2.2.4.7 Video-recordings as Hearsay
The B.C. Court of Appeal in R. v. Collura[124] held that a videotaped interview with a child complainant adduced in conformity with the requirements of R. v. Khan may be admitted instead of the child testifying (i.e., outside of s. 715.1) if the "necessity" for this and the "reliability" of the statement are established. The common law standard for admission of a video-recording in cases where a child has not testified requires stricter scrutiny of the circumstances in which the videotape was made.[125]
In R.
v. Vaughn, [126] the accused was charged with sexually assaulting the two child complainants.
The Crown did not wish to call the children as witnesses to give viva voce testimony at the preliminary hearing, in particular to avoid them being
cross-examined; to avoid doing so, the Crown sought to introduce the videotaped
recordings of the children's interview with the investigating officer under s.
540(7) of the Criminal Code. In holding that the videotaped recordings
could not be admitted under s. 540(7) as of right, Skilnick, J. explained that,
if the Crown wishes to rely solely on the video-taped statements of the
complainants without calling the children as witnesses, a voir dire must
first be held to determine the evidence is "credible and trustworthy"
and hence
admissible under s. 540 (7). Even if the video-recordings are admitted under
s. 540(7), the accused can apply under s. 540(9) to cross-examine a child at
the preliminary inquiry; this should not be permitted only for the purposes of
challenging the child's credibility, but only if there is a distinct issue to
be explored such as coaching, fabrication or the identity of the perpetrator.
In R. v. G.(L.), [127] the Quebec Court of Appeal upheld the admissibility of a videotape of an interview of a child who was five at the time of trial, and on the stand briefly described the events but said that she did not remember making a statement to the police and hence did not "adopt" the video. While the video was not admissible under s. 715.1, the Court applied the Khan exception to the hearsay rule, concluding that the tape was "reliable" and that it was "necessary" to admit the tape. In R. v. D.M.,[128] the Nova Scotia Court of Appeal took the same approach, ruling that although the 5-year-old complainant did not adopt the contents of her previous videotaped statement, and hence s. 715.1 could not be used, the statement could be admitted under the Khan exception to the hearsay rule; the child testified, but did not answer any questions about the alleged assault, and stated that she did not have any recollection of having given a video-recorded statement to the police.
2.2.4.8 Recantation
In R. v. T.R., [129] the Ontario Court of Appeal ruled that although at trial
the complainant recanted the allegations of sexual abuse that she made against
her father in a videotaped statement, and consequently had not "adopted" the
contents of the videotape under s. 715.1 of the Criminal Code, the trial
judge had not erred in finding that the statement met the reliability standard
for admissibility under the common law test of R. v. Khan. While the
complainant's recantation at trial was supported by further contradictory
evidence, the court stated that the trial judge was correct in not considering
the contradictory evidence within the framework of threshold reliability. The
circumstances surrounding the taping of the statement suggested that while the
statement was not made under oath, the complainant understood the importance of
telling the truth, and did so. In addition, the ability of the defence to
cross-examine the complainant at trial also supported the admission of the
hearsay evidence. The Court of Appeal held that the trial judge was correct in
determining that the contradictory recantation evidence did not render the
video-recorded statement inadmissible under Khan, but related to the "ultimate
assessment of the actual probative of the evidence,"
which was for the trier of
fact to determine.
In R. v. T.H.,[130] Trafford
J. concluded that statements made by 3- and 9-year-old children to their mother
and later in a video-recorded statement to the police were not admissible under
the Khan rule as their reliability was not established. Some of the factors
that led the court to conclude that the statements were not sufficiently
reliable to be admitted were the use of leading questions, the fact that the
view of the children during some critical parts of the interview was blocked by
one of the officers, and the opportunity for "collusion between the children,
innocent or otherwise"
before the interview.[131] It is clear that in cases where the Crown wishes to introduce a video-recording
of an interview with a child under the hearsay exception instead of the child
testifying (e.g., because of emotional trauma), the interview will be more
closely scrutinized for "reliability" than in cases where the Crown seeks to
have the videotape under s. 715.1 of the Code in addition to having the
child testify. This reflects the fact that the child is available for
cross-examination when s. 715.1 is invoked, eliminating the hearsay concern
about reliability.
2.2.4.9 The Quality of the Interview
While the Bill C-2 amendments to s. 715.1 have clearly facilitated the admissibility of video-recordings of investigative interviews, there continue to be expressions of judicial concern about the quality of some of the interviews.
It was held under
the prior provision that expert evidence is not admissible to challenge the
forensic quality and investigative interview that has been videotaped.[132] If the requirements of
s. 715.1 are otherwise satisfied, concerns about the quality and nature of
the investigative interview, for example the use of leading questions,
generally go to the weight accorded the videotape, not its admissibility. There
is, however, a continuing judicial discretion to exclude all (or a portion) of
a video-recorded interview if its admission would "interfere with the proper
administration of justice."
In R v. C.B.,[133] Wein J. admitted a video-recording of an interview with a child, but expressed concern about the interview itself (at para. 11-14):
Ms. Divina B. adopted the evidence that she gave to the police in a videotaped statement on January 27, 2006. The statement was admitted into evidence pursuant to the provisions of s. 715.1 of the Criminal Code, and was adopted by Ms. Divina B. in her testimony given under oath.
Nothing in Ms. Divina B.'s demeanour on the videotape suggests that she was not telling the truth. She was obviously nervous, to the point of clear embarrassment. She was visibly reluctant to provide details to the male police interviewer. Some of the syntax used in her answers reflects the fact that English is her second language. Despite that her story is given in a relatively straightforward manner.
In assessing the video, it also must be acknowledged that the officer who conducted the interview - a male adult - never successfully put the witness fully at ease. It is undoubtedly regrettable that the police were not able to provide this young witness with an interviewer who would make the process more comfortable and, perhaps, the details more complete.
Additional confusion arises because of the language differences. For example, Ms. Divina B. often indicated that her father put his penis "on" her. Eventually in describing the degree of pain she felt, she acknowledged that it was "in" or "inside" of her and I accept that this variance in description arises from the fact that English is her second language, and the officer did not want to appear to be asking leading questions.
As a result of concerns about the interview as well as other aspects of the case, Wein J. acquitted the accused, even though the judge accepted that the child was an honest witness.
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