User Name: Jordan Weisz

Date and Time: Nov 25, 2016 14:09

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1. R. v. S.G., [2007] O.J. No. 2203

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Jordan Weisz
 R. v. S.G., [2007] O.J. No. 2203
Ontario Judgments

Ontario Superior Court of Justice

N.J. Spies J.
Oral judgment: April 18, 2007.
[2007] O.J. No. 2203 | 221 C.C.C. (3d) 439 | 74 W.C.B. (2d) 289
Between Her Majesty the Queen, and Salvadore G.

(38 paras.)

Case Summary

Criminal law — Evidence — Witnesses — Credibility — Children — Prior consistent statements —

Examination — Videotaped evidence made by 16-year-old complainant when she was 13 in relation to
sexual offences when she was nine or 10 was admissible — Statement was made within a reasonable time
of the offence and admission would not prejudice accused or interfere with proper administration of justice
— Criminal Code, s. 715.1.

SG charged with sexual offences against M -- M made a video statement when she was 13 in relation to conduct
that occurred when she was nine or 10 years of age -- The statement was made after M disclosed the allegations
to a school counselor and the police -- M indicated that she had told her mother at the time the incidents
occurred, but that her mother failed to do anything due to her fear of SG -- At the time of trial, M was 16 -- The
Crown applied for an order pursuant to s. 715.1 of the Criminal Code to introduce the videotape into evidence.

HELD: Application allowed.

The burden was on the Crown is to satisfy the court on a balance of probabilities that the videotaped statement
was made within a reasonable time after the alleged offence -- The delay in M's disclosure to the police was
explained by the fear of the complainant and her mother of SG -- The videotaped statement was made within a
reasonable time of the alleged events -- M 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 -- Given the
safeguards of a jury charge and cross-examination, the admission of the videotaped statement would not
prejudice SG or interfere with the proper administration of justice.

Statutes, Regulations and Rules Cited

Criminal Code, s. 715.1

Counsel

Ms. J. Harowitz: Counsel for the Crown.

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R. v. S.G., [2007] O.J. No. 2203

Ms. J. Penman: Counsel for the Defendant.

N.J. SPIES J. (orally)

1 The accused, Salvadore G., has been charged with sexual offences related to the complainant, M. The
complainant made a video statement to the police on October 27th, 2004, when she was 13 years old. The Crown
seeks an order pursuant to s. 715.1 of the Criminal Code, in order to introduce the videotape into evidence, if the
complainant adopts the contents of the videotape while testifying.

2 There is no dispute that offences charged include those listed in the section or that the complainant is under the
age of 18; she is in fact 16 years old now. The position of the defence is that the videotape statement was not made
within a reasonable time after the alleged offence and that the admission of the video recording in evidence would
prejudice the defence and interfere with the proper administration of justice.

3 Although the indictment alleges that the offences occurred in the period of January 1st, 1997, to December 31st,
2007, based on the evidence of the complainant at the time of the statement to the police, the conduct she
complains of took place when she was ten years old, which would place it in 2001, as her birth date is January 17th,
1991. She was clearly uncertain in her answer, however, and in fact stated a little while later that she told her
mother about it when she was nine or ten. She also placed the offence as occurring while she lived in the Jane
Street apartment and went to the Yorkwoods School and had teacher Mrs. G.

4 Although the complainant stated the offence took place in grade three or four, at the preliminary hearing on
November 14th, 2005, she testified the conduct she complains of took place while Mrs. G. was her teacher and that
she was her teacher in grade four or five. The complainant was in grade nine at the time of the preliminary hearing,
and so, assuming she progressed each grade each year, by my calculation, she was nine years old in grade four
and ten in grade five. Again, at the preliminary hearing, the complainant stated that she told her mom about the
events she complains of when she was near nine of ten. She was able to pinpoint it, however, to grades four and
five, which in my mind is a how a child would best remember.

5 During the course of argument on the voir dire, the period of delay between the offence and the videotaped
statement was suggested by Ms. Harowitz to be three years. Ms. Penman suggested it could be longer, given the
uncertainty in the complainant's evidence.

6 In my view, having reviewed the complainant's statement and her evidence at the preliminary hearing, the
uncertainty as to time comes from her inability to recall the specific period of time in terms of when the alleged
touching began and ended. The best evidence is her recollection it occurred while Mrs. G. was her teacher. That
would place the conduct as occurring sometime between the fall of 2000 and the spring of 2002.

7 Suffice it to say that on the evidence before me, the delay is in the range of three years. Although it could be a
little longer as Ms. Penman suggests, it could also be a little less. The period of delay should be considered from
when the events complained of ended, which could, given the indictment, be as late as the end of 2001 while the
complainant was still in grade five and ten years old. That would make the period of delay just under three years.
There is no doubt, however, that the period of delay is lengthy.

8 The first issue is then whether or not the Crown has met the statutory requirement that the videotaped statement
be made "within a reasonable time of the alleged offence."

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9 There is no dispute that the burden is on the Crown, but an issue arose as to what the standard of proof is. I think
it is fair to say that both counsel and I assumed the standard is merely a balance of probabilities until we noticed a
passage in the Supreme Court of Canada's decision in R. v. D.O.L., (1993), 85 C.C.C. (3d) 289, and in particular a
passage from the concurring decision of Justice L'Heureux-Dube, which suggests the onus on the Crown is to
prove beyond a reasonable doubt that the videotape was made within a reasonable time after the alleged offence.
Specifically, Justice L'Heureux-Dube set out the ruling of the trial judge on the voir dire, which expresses the test in
this way, and then when deciding that the Court of Appeal should not have intervened in the decision of the trial
judge, she found that the trial judge correctly directed himself on the law, although she made no specific reference
to the burden of the Crown.

10 In the short time available during the course of the argument, counsel were not able to shed any light on this
issue of what is the burden on the Crown. With the assistance of my law clerk, I was not able to find any other
judicial consideration of the point either. In my opinion, it is unlikely that Justice L'Heureux-Dube in fact turned her
mind specifically to the question of burden, as it was not in issue before her. There does not appear to be a
consideration of this point by any of the other judges, nor the judges of Manitoba Court of Appeal. In my view, any
implicit adoption of the position of the trial judge on the standard of proof required is obiter. In any event, this
position was not expressly adopted by the majority of the Court.

11 Section 715.1 of the Criminal Code offends the common law evidentiary rule that precludes the admission in
evidence of previous consistent statements. Section 715.1 could also fairly be characterized as a statutory
exception to the evidentiary rule that an out-of-court statement is hearsay and presumptively inadmissable,
although it is subject to adoption by the author of the statement. When looked in this light, it is difficult to understand
why the burden on the Crown would be to establish this prerequisite beyond a reasonable doubt. In fact, given the
test is whether the delay is reasonable, that would almost be an impossible burden for the Crown to meet. The
criminal standard of proof could not be taken from the language of the section itself, nor would that be the case
when making any other evidentiary ruling.

12 The only other case Ms. Harowitz could think of, where the burden on the Crown is that proof beyond a
reasonable doubt, is in the case where the Crown seeks to introduce the statement made by the accused to a
person in authority, in which case the Crown must prove beyond a reasonable doubt that the statement was made
voluntarily. There are reasons for a higher standard in such circumstances that are not engaged here.

13 If the Crown sought to introduce the videotaped statement on the basis of the principled approach to hearsay, it
would not face such a high burden. Furthermore, by analogy, the standard of proof for proving the preconditions for
s. 715, to introduce the previous testimony of a witness, is considered to be a balance of probabilities. (See
McWilliams Canadian Criminal Evidence at 7:120:20.20).

14 I have therefore approached this first issue on the basis that the burden on the Crown is to satisfy me on a
balance of probabilities that the videotaped statement was made within a reasonable time after the alleged offence.

15 The Crown called two witnesses on this issue - the school counsellor the complainant told about these events
on October 20th, 2004, and Officer Lee who took the complainant's statement on October 27th, 2004. There is no
question that once the complainant disclosed her complaint to the school counsellor that the statement was taken
promptly. The issue, however, is the delay before this.

16 In considering whether a videotaped statement has been made with 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 the delay on the
child's ability to accurately recall the events in issue (R. v. S.P., 144 C.C.C. (3d) 120 (QL) at p. 13, Ont. C.A.).

17 I do not have a lot of information about why this matter did not come to the attention of the police until October
2004. In her statement the complainant states that she told her mother while it was happening and that Mr.

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Salvadore G. said it was a lie. She alleges that he continued to touch her thereafter. In her evidence at the
preliminary hearing, she testified she told her mother after it had happened a few times. In her statement, the
complainant also stated that Mr. Salvadore G. hit her and her mom, and she was scared that if she told the truth to
her mom, he would probably hit her. It appears that the complainant's decision to tell the school counsellor in
October 2004 was because Mr. Salvadore G. came to the house, and when she saw him, she was scared.

18 I am satisfied that the delay in the complainant's disclosure to the police has been explained. She told her
mother while it was happening and since it appears that her mother failed to take action and given her fear of Mr.
Salvadore G., the complainant's failure to tell anyone else was understandable. That leaves, however, a
consideration of other factors and, in particular, the impact of the delay on the complainant's ability to accurately
recall the events in issue at the time she gave her statement.

19 In R. v. S.P., Justice Moldaver, speaking for the Court, found a two year delay to be a "long delay" and a
"borderline case" (at para. 75). Nevertheless, the Court found the complainant was "not so young that the delay
would raise obvious concerns about her ability to accurately recall the incident." It appears in that case that the
complainant would have been nine at the time of the statement and seven at the time of the offence, and so the
complainant in that case was younger than Ms. Aroni.

20 Although Ms. Harowitz advised me that there was an unreported decision of Justice Kiteley, who admitted a
videotaped statement in a case of similar delay to the case before me, from the cases that have been reported on
this issue, the S.P. case appears to be the case of the longest delay - that of two years, where the videotape was
still held to be properly admissible, although, as I have noted, it was stated to be a borderline case.

21 I accept the position of the Crown, however, that there is no hard and fast rule - the legislature has not imposed
a time limit. I must consider the totally of the circumstances - assessment of reasonableness requires a case-by-
case analysis.

22 On the question of the impact of the delay on the reliability of the statement and when I should consider the
delay to be too long, I have not found much guidance in the case law. As Justice Moldaver noted in R. v. S.P., the
age of the complainant is significant. That seems to be a very significant factor, presuming that the reason for the
delay has been explained.

23 In R. v. L. (S.J.), (2001), 155 C.C.C. (3d) 338, the B.C. Court of Appeal referred to the observations of Justice
L'Heureux-Dube in R. v. L.(D.O.), that recollection diminishes with the passage of time and that this diminishment is
more rapid with children. As Justice Cory observed in R. v. C.C.F. [1997] 3 S.C.R. 1183 (at para. 19), the younger
the child, the more pronounced this will be. In the L.(S.J.) case, the child at the time of the offence was 25 or 27
months old and at the time of the videotape was six years old. Considering the very young age of the complainant
and the various developmental stages of the complainant necessarily passed through in that period of time, as he
more than doubled his age, the Court concluded that 45 months was simply too long and that the videotaped
statement was not made within a reasonable time of the alleged event.

24 In R. v. S.M., (1995), 98 C.C.C. (3d) 526, the Alberta Court of Appeal considered a 17 month delay. The Court
conceded that what it described as a long delay "weakened the impact of the videotaped recollection ... there is
always a risk that a trier might put too much weight of a taping that occurred when the report was already stale."
The Court stated, however, that this is a matter of weight not admissibility.

25 Ms. Penman argues that at some point the length of delay must go to admissibility, not just weight. I agree with
that submission, given the statutory requirement of s. 7.15.7, that the videotaped statement be made within a
reasonable time of the offence. If the videotaped statement was not made within a reasonable time of the offence, it
is not admissible. That is not to say, however, where there is a delay that the Court finds is not unreasonable, that
the jury cannot be instructed to take that delay into account when assessing the weight to be given to the
videotaped statement.

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26 In considering this issue, it is also important to remember that, as Justice Cory stated in C.C.F., the primary goal
of s. 715.1 is the creation of a record of what is probably the best recollection of the event (at para. 21). He stated
as well that the section enhances the ability of a Court to find the truth by preserving a very recent recollection of
the event in question (at para. 19). Although it could not be said in this case, that the videotaped statement
preserved a very recent recollection, it arguably reflects a more accurate recollection of the events than what the
complainant's recollection will be at this trial, which is yet another two and a half years since the statement was
made. That, however, could be said in virtually any regardless of the initial delay.

27 The Crown argues that I should also consider what has been described by Justice Cory as the subsidiary aim of
the section, which is to prevent or reduce materially, the likelihood of inflicting further injury upon a child as a result
of participation in court proceedings. Although I note that is not expressed as part of the statutory requirements,
Justice Cory does not refer to academic writings that support the common sense proposition that a child is more
likely to fully remember and relate often painful memories in a relaxed interview than in a strange, stressful and
formal courtroom environment (at p. 7).

28 Presumably the requirement that the videotaped statement be made within a reasonable time of the offence is
to ensure its reliability. I agree with Professor David Paciococco, who observes, 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."

29 In this case, the complainant was around ten at the time of the events complained of and 13 at the time of the
videotaped statement. In my opinion she was not of such a young age where the three year delay in obtaining her
statement would raise, as Justice Moldaver said put it, obvious concerns about her ability to accurately recall the
incidents.

30 In this regard, I have also considered the statement itself. First of all, the questions asked by Detective
Constable Lee were not asked in a leading or pressured way. Although there were a number of details that the
complainant was unsure about, there is nothing obvious from the statement to suggest diminished recollection of
important details. The complainant's confusion as to when the incidents occurred in relation to her seems
reasonable, given she was able to relate the events to her grade and teacher.

31 Given the presence of the school social worker, when the statement was given, who is the person the
complainant chose to disclose these events to in the first place, it is also reasonable to conclude that she was more
likely to accurately remember then, what she alleges happened, than she would not in a courtroom environment.

32 Furthermore, there is no suggestion by the defence that anything that occurred between the events complained
of and the videotaped statement had improperly influenced the complainant's recollection of the events.

33 In considering the totality of the circumstances, I am satisfied that the videotaped statement was made within a
reasonable time of the alleged events.

34 I still must consider, however, whether admission of the videotaped statement into evidence would interfere with
the proper adminstration of justice. I have reviewed the factors I should take into account, as set out by Justice
L'Heureux-Dube in R. v. D.O.L. The defendant relies, in particular, on the fact that the complainant will give
evidence behind a screen, that she is 16 years old of age and that this is a trial with a jury.

35 In my view, those concerns can be adequately addressed by a mid-trial instruction to the jury which I will repeat
in my final charge. There is no suggestion of prejudice save for the concern that the jury will give the videotaped
statement too much weight and not take into account the fact it was made three years after the event. The
complainant will be subject to cross-examination before the jury, and this point will no doubt be made by the
defence.

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36 I will instruct the jury with respect to the use of the videotaped statement, assuming it is adopted by the
complainant and admitted into evidence. The tape itself will not be an exhibit that goes to the jury room. For these
reasons, I will be able to ensure there is no prejudice to the accused by allowing the complainant to reply on the
videotaped statement as part of her evidence in-chief.

37 Accordingly, I find that the admission of the videotaped statement would not interfere with the proper
administration of justice.

38 For these reasons, when we conduct the second half of this voir dire, if the complainant adopts the contents of
the videotaped statement, then subject to any further debate on that issue, I find that the Crown has satisfied me
that the other statutory requirements of s. 715.1 have been met.

End of Document

Jordan Weisz