R. v. L. (D.O.)

R. v. L. (D.O.)
Collection
Supreme Court Judgments
Date
1993-11-18
Report
[1993] 4 SCR 419
Case number
22660
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Manitoba
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 22660
Decision Content
R. v. L. (D.O.), [1993] 4 S.C.R. 419
Her Majesty The Queen Appellant
v.
D.O.L. Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General for New Brunswick,
the Attorney General for Saskatchewan
and the Attorney General for Alberta Interveners
Indexed as: R. v. L. (D.O.)
File No.: 22660.
1993: June 15; 1993: November 18.*
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for manitoba
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Fair trial ‑‑ Videotaped statement of young complainant in sexual assault case admitted into evidence pursuant to s. 715.1 of Criminal Code ‑‑ Whether s. 715.1 infringes s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Whether s. 715.1 offends evidentiary rules against admission of hearsay evidence and prior consistent statements ‑‑ Whether accused's right to cross‑examine complainant violated ‑‑ Whether judicial discretion in s. 715.1 consistent with principles of fundamental justice ‑‑ Whether age limit contained in s. 715.1 arbitrary ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 715.1 .
Constitutional law ‑‑ Charter of Rights ‑‑ Fair trial ‑‑ Public hearing
‑‑ Presumption of innocence ‑‑ Videotaped statement of young complainant in sexual assault case admitted into evidence pursuant to s. 715.1 of Criminal Code ‑‑ Whether s. 715.1 infringes s. 11 (d) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 715.1 .
Criminal law ‑‑ Videotaped evidence ‑‑ Accused charged with sexual assault ‑‑ Videotaped statement of young complainant made five months after alleged offence admitted into evidence pursuant to s. 715.1 of Criminal Code ‑‑ Whether videotape made within reasonable time ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 715.1 .
Criminal law ‑‑ Trial ‑‑ Reasonable doubt ‑‑ Whether trial judge applied proper test for weighing evidence.
Criminal law ‑‑ Trial ‑‑ Function of judge -- Apprehension of bias ‑‑ Examination of witnesses ‑‑ Whether trial judge's interventions during trial raised reasonable apprehension of bias.
The accused was charged with sexual assault alleged to have taken place between September 1985 and March 1988. Following a medical examination of the complainant, a 9‑year‑old girl, the police began their investigation in May 1988 and a videotaped interview of the complainant took place in August 1988. At the preliminary inquiry, the complainant testified before the court. At trial, the Crown sought to introduce the videotaped interview of the complainant pursuant to s. 715.1 of the Criminal Code . That section provides that in any proceeding relating to certain sexual offences "in which the complainant was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant describes the acts complained of, is admissible in evidence if the complainant, while testifying, adopts the contents of the videotape". The accused sought a declaration that s. 715.1 was unconstitutional but the trial judge upheld the section. Following a voir dire, the videotaped interview was admitted into evidence and the accused was convicted. The Court of Appeal allowed the accused's appeal and declared s. 715.1 unconstitutional. The court held that s. 715.1 contravened ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms and could not be sustained under s. 1 . A new trial was ordered.
Held: The appeal should be allowed. Section 715.1 of the Code is constitutional.
Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ.: Section 715.1 of the Code is a response to the dominance and power which adults, by virtue of their age, have over children. By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and the discovery of truth.
Section 715.1 does not infringe s. 7 or 11 (d) of the Charter . Section 715.1 does not offend the rules of evidence against the admission of hearsay evidence and prior consistent statements. In addition, as there is no constitutionally protected requirement that cross‑examination be contemporaneous with the giving of evidence, the accused's right to cross‑examine has not been violated. The admission of the videotaped evidence does not make the trial unfair or not public, nor does it in any way affect an accused's right to be presumed innocent. Moreover, the incorporation of judicial discretion into s. 715.1 , which permits a trial judge to edit or refuse to admit videotaped evidence where its prejudicial effect outweighs its probative value, ensures that s. 715.1 is consistent with fundamental principles of justice and the right to a fair trial protected by s. 7 or 11 (d) of the Charter . The age limit of 18 contained in s. 715.1 is not arbitrary. This limit is consistent with laws which define the age of majority and with the special vulnerability of young victims of sexual abuse.
The trial judge did not make a reversible error when he concluded that, in the circumstances of the case, the videotape was made within a reasonable time. Nor did he err in stating or applying the test to be used in weighing the evidence. Finally, the trial judge's intervention during the trial did not raise a reasonable apprehension of bias.
Per L'Heureux‑Dubé and Gonthier JJ.: The goal of the court process is truth‑seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth. It is well established that, in many instances, the court process is failing children, especially those who have been victims of sexual abuse, who are then subjected to further trauma as participants in the judicial process. If the criminal justice system is to effectively perform its role in deterring and punishing child sexual abuse, it is vital that the law provide a workable, decent and dignified means for the victim to tell her story to the court. Section 715.1 is a modest legislative initiative working toward this end. The constitutionality of s. 715.1 is to be examined from a contextual approach which recognizes the staggering numbers of sexual offences reported each year and the innate power imbalance between the abuser and the abused child, which is often tied to both the gender and the age of the victim and the perpetrator. By preserving an early account of the child's complaint and by providing a procedure for the introduction of the child's story into evidence at the trial, s. 715.1 facilitates the attainment of the truth. It also curbs the trauma that a child called to testify in a case of sexual abuse is forced to endure. Although s. 715.1 does not totally eliminate the need for a child to speak in front of the court, the end goal of making the criminal justice process more accommodating to children is accomplished. The limited scope of s. 715.1 is a legislative attempt to balance the objectives of that section with the right of an accused to a fair trial.
Section 7 of the Charter entitles an accused to a fair trial but it does not entitle him to the most favourable procedures that could possibly be imagined. Canadian society has a vested interest in the enforcement of criminal law in a manner that is both fair to the accused and sensitive to the needs of those who participate as witnesses. In particular, children may have to be treated differently by the criminal justice system in order that it may provide them with the protections to which they are rightly entitled and which they deserve. Further, the rules of evidence have not been constitutionalized into unalterable principles of fundamental justice. These rules are not cast in stone and will evolve with time. As well, they should not be interpreted in a restrictive manner which may essentially defeat their purpose of seeking truth and justice. The modern trend in this field has been to admit all relevant and probative evidence and allow the trier of fact to decide the weight to be given to that evidence in order to arrive at a result which will be just.
The accused's right to a fair trial under s. 7 of the Charter has not been infringed by the admission of the videotaped statement pursuant to s. 715.1 . The provisions of s. 715.1 accommodate the traditional rules of evidence. First, even assuming that videotaped evidence is hearsay, s. 715.1 does not offend the rules against the admission of hearsay evidence. Under s. 715.1, the concern generally associated with hearsay that the prior statement may be unreliable does not present a real danger because a young complainant whose videotaped statement is admitted at trial through s. 715.1 must testify in court and must adopt the contents of the videotape. There is no reason to require circumstances of necessity or circumstantial indicators of reliability as prerequisites to the admission of evidence which does not carry the dangers inherent in the admission of hearsay evidence. The rules of necessity and reliability were designed as substitute requirements, in instances where an exception to the rules of evidence is mandated. They do not necessarily apply to legislative initiatives. In any event, the criteria of necessity and reliability can easily be met. Reliability arises from the presence of the child at trial, the adoption under oath of her videotaped statements, the opportunity to observe the child in the videotape and in court and the accused's ability to cross‑examine the child. Necessity stems from the child's possible loss of memory by the time of trial or from the negative consequences that the child may suffer if obliged to testify at trial.
Second, the rationale for excluding prior consistent statements made by a witness is not applicable to s. 715.1. The videotaped evidence is not being admitted to bolster the credibility of the child witness or to provide superfluous information. This evidence is highly relevant and probative since it is the only evidence before the court with regard to the details of the child's sexual abuse. Section 715.1 simply provides a different means of giving evidence.
Third, the opportunity to cross‑examine the complainant at trial, rather than at the time of the filming of the videotape, provides an adequate means of testing the complainant's evidence. Under s. 715.1, the manner of questioning, the reaction, the responses and the entire circumstances of the taking of the evidence are before the court through the medium of videotaping. By ensuring an opportunity for the accused to test the videotaped evidence, s. 715.1 provides full protection for the rights of an accused. Contemporaneous cross‑examination is not protected by the Charter .
In addition to the power to expunge or edit statements where necessary, the trial judge has discretion under s. 715.1 to refuse to admit the videotape in evidence if its prejudicial effect outweighs its probative value. Properly used, this discretion to exclude admissible evidence ensures the validity of s. 715.1 and is consistent with fundamental principles of justice necessary to safeguard the right to a fair trial enshrined in the Charter .
The limit of 18 years of age in s. 715.1 is not arbitrary. Section 715.1 is a legislative attempt to partly shield the most vulnerable of witnesses, children and young women, from the severe effects that all witnesses, regardless of age, suffer in sexual abuse cases. The inclusion in s. 715.1 of all complainants up to the age of 18 is required by their continued need for protection and is in conformity with international and domestic instruments.
Section 715.1 does not infringe s. 11 (d) of the Charter . Out‑of‑court statements admitted into evidence at trial do not deny an accused the guarantee of a public hearing. Further, the fact that the child's testimony is on videotape in no way colours the accused's guilt or innocence.
The videotaped testimony of the complainant was made within a reasonable time, pursuant to s. 715.1, and was properly admitted into evidence. What is or is not "reasonable" depends entirely on the circumstances of a case. Here, the videotape was made five months after the offence was reported. The trial judge, after reviewing all the circumstances of the case, concluded that the time period in videotaping the complainant's evidence was reasonable. The trial judge correctly directed himself in law and did not err in his assessment of the evidence.
The trial judge applied the proper test for weighing the evidence. Whether an account given by an accused might reasonably be true is not the proper test of whether the Crown's evidence should be rejected. It is simply one factor in assessing the overall impact of the evidence as a whole. The only question for the trier of fact at the end of the trial is whether or not, on the whole of the evidence, the Crown has proved its case beyond a reasonable doubt. If it has, the accused must be convicted. If there is a reasonable doubt, the accused must be acquitted.
Finally, in cases involving fragile witnesses such as children, the trial judge has a responsibility to ensure that the child understands the questions being asked and that the evidence given by the child is clear and unambiguous. To accomplish this end, the trial judge may be required to clarify and rephrase questions asked by counsel and to ask subsequent questions to the child to clarify the child's responses. The trial judge's conduct in this case did not prevent the mounting of a proper defence, nor did it demonstrate favouritism toward the complainant in such a way as to preclude a fair trial.
Per Major J.: Section 715.1 of the Code does not infringe ss. 7 and 11 (d) of the Charter . The conclusions with respect to the non‑constitutional issues were agreed with.
Cases Cited
By L'Heureux‑Dubé J.
Referred to: R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Meddoui, [1991] 2 W.W.R. 289; R. v. Toten (1993), 83 C.C.C. (3d) 5; Coy v. Iowa, 487 U.S. 1012 (1988); Maryland v. Craig, 110 S.Ct. 3157 (1990); R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. B. (G.), [1990] 2 S.C.R. 30; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Khan, [1990] 2 S.C.R. 531; R. v. Marquard, [1993] 4 S.C.R. 223; Ares v. Venner, [1970] S.C.R. 608; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Potvin, [1989] 1 S.C.R. 525; R. v. Argue, Ont. Ct. (Gen. Div.), October 2, 1991, unreported; Baron v. Canada, [1993] 1 S.C.R. 416; R. v. Corbett, [1988] 1 S.C.R. 670; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; M. (M.E.) v. L. (P.), [1992] 1 S.C.R. 183; R. v. Duguay, [1989] 1 S.C.R. 93; Lensen v. Lensen, [1987] 2 S.C.R. 672; R. v. W. (D.), [1991] 1 S.C.R. 742; Brouillard v. The Queen, [1985] 1 S.C.R. 39.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d).
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Arts. 1, 19, 34.
Criminal Code, R.S.C., 1985, c. C‑46, s. 715.1 [en. c. 19 (3rd Supp.), s. 16 ].
Fla. Stat. Ann. § 92.53 (West 1992).
Young Offenders Act, R.S.C., 1985, c. Y‑1 .
Authors Cited
Bala, Nicholas. "Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System". In Walter S. Tarnopolsky, Joyce Whitman and Monique Ouellette, eds., Discrimination in the Law and the Administration of Justice. Montréal: Thémis, 1993, 232.
Bala, Nicholas, and Martha Bailey. "Canada: Recognizing the Interests of Children" (1992‑93), 31 J. Fam. L. 283.
Bessner, Ronda. "Khan: Important Strides Made by the Supreme Court Respecting Children's Evidence" (1990), 79 C.R. (3d) 15.
Brennan, Mark. "The Battle for Credibility" (1993), 143 New Law Journal 623.
Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children, vol. 2. Ottawa: Minister of Supply and Services Canada, 1984.
Canada. Department of Justice, Research Section. Sexual Assault Legislation in Canada: An Evaluation (Report No. 5). Ottawa: Department of Justice Canada, 1990.
Canada. Health and Welfare. Report of the Special Advisor to the Minister of National Health and Welfare on Child Sexual Abuse in Canada. Reaching for Solutions. Ottawa: Minister of Supply and Services Canada, 1990.
Canada. House of Commons. Legislative Committee on Bill C‑15. Minutes of Proceedings and Evidence, Issue No. 1, November 27, 1986, p. 1:18.
Canada. House of Commons. Standing Committee on Justice and the Solicitor General. Four‑Year Review of the Child Sexual Abuse Provisions of the Criminal Code and the Canada Evidence Act (formerly Bill C‑15). Ottawa: Supply and Services Canada, 1993.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings, Issue No. 2, November 20, 1986, p. 2:23.
Canada. Solicitor General. Canadian Urban Victimization Survey, Bulletin No. 2, Reported and Unreported Crimes. Ottawa: Solicitor General, 1984.
Clark, Lorenne M. G. "Boys Will Be Boys: Beyond the Badgley Report" (1986), 2 C.J.W.L. 135.
Dziech, Billie Wright, and Charles B. Schudson. On Trial: America's Courts and Their Treatment of Sexually Abused Children, 2nd ed. Boston: Beacon Press, 1991.
Flin, Rhona H., and John R. Spencer. "Do Children Forget Faster?", [1991] Crim. L.R. 189.
Goodman, Gail S., et al. Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims. Chicago: University of Chicago Press, 1992.
Goodman, Gail S., and Vicki S. Helgeson. "Child Sexual Assault: Children's Memory and the Law" (1985), 40 U. Miami L. Rev. 181.
Hill, Paula E., and Samuel M. Hill. "Videotaping Children's Testimony: An Empirical View" (1987), 85 Mich. L. Rev. 809.
Holmstrom, Lynda Lytle, and Ann Wolbert Burgess. The Victim of Rape: Institutional Reactions. New Brunswick, N.J.: Transaction Books, 1983.
Marshall, Patricia. "Sexual Assault, the Charter and Sentencing Reform" (1988), 63 C.R. (3d) 216.
McAllister, Beth. "Article 38.071 of the Texas Code of Criminal Procedure: A Legislative Response to the Needs of Children in the Courtroom" (1986), 18 St. Mary's L.J. 279.
McGillivray, Anne. "Abused Children in the Courts: Adjusting the Scales After Bill C‑15" (1990), 19 Man. L.J. 549.
McGillivray, Anne. "R. v. Laramee: Forgetting Children, Forgetting Truth" (1991), 6 C.R. (4th) 325.
Renaud, Gilles. "Judicial Notice of Delayed Reporting of Sexual Abuse: A Reply to Mr. Rauf" (1993), 20 C.R. (4th) 383.
Rittershaus, Mary A. "Maryland v. Craig: Balancing the Interests of a Child Victim Against the Defendant's Right to Confront his Accuser" (1991), 36 San Diego L. Rev. 104.
Spencer, John R. "Child Witnesses ‑‑ A Further Skirmish" (1987), 137 New Law Journal 1127.
Spencer, John R., and Rhona H. Flin. The Evidence of Children: The Law and the Psychology. London: Blackstone Press, 1990.
Summit, Roland C. "The Child Sexual Abuse Accommodation Syndrome" (1983), 7 Child Abuse & Neglect 177.
Whitcomb, Debra, Elizabeth R. Shapiro and Lindsey D. Stellwagen. When the Victim is a Child: Issues for Judges and Prosecutors. Washington, D.C.: National Institute of Justice, 1985.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 4. Revised by James H. Chadbourn. Boston: Little, Brown and Co., 1972.
Young, Alison Harvison. "Child Sexual Abuse and the Law of Evidence: Some Current Canadian Issues" (1992), 11 Can. J. Fam. L. 11.
Yuille, John C., Mary Ann King and Don MacDougall. Child Victims and Witnesses: The Social Science and Legal Literatures. Ottawa: Department of Justice Canada, 1988.
APPEAL from a judgment of the Manitoba Court of Appeal (1991), 73 Man. R. (2d) 238, 3 W.A.C. 238, 6 C.R. (4th) 277, 65 C.C.C. (3d) 465, allowing the accused's appeal from his conviction on a charge of sexual assault and ordering a new trial. Appeal allowed.
Marva J. Smith and Deborah L. Carlson, for the appellant.
Rocky Kravetsky, Jill K. Duncan and Gene G. Zazelenchuk, for the respondent.
Ivan Whitehall, Q.C., and Kimberly Prost, for the intervener the Attorney General of Canada.
Scott C. Hutchison, for the intervener the Attorney General for Ontario.
Lucie Rondeau and Dominique A. Jobin, for the intervener the Attorney General of Quebec.
Gabriel Bourgeois, for the intervener the Attorney General for New Brunswick.
Thomson Irvine, for the intervener the Attorney General for Saskatchewan.
Written submissions only by Jack Watson, for the intervener the Attorney General for Alberta.
The judgment of Lamer C.J. and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ. was delivered by
Lamer C.J. -- I have read the reasons of Madame Justice L'Heureux-Dubé and concur in her result. It is my view that s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 , is a response to the dominance and power which adults, by virtue of their age, have over children. Accordingly, s. 715.1 is designed to accommodate the needs and to safeguard the interests of young victims of various forms of sexual abuse, irrespective of their sex. By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and the discovery of truth.
I would answer the constitutional questions in the same manner as my colleague. As s. 715.1 neither offends the principles of fundamental justice nor violates the right to a fair trial, it cannot be said to limit the rights guaranteed under s. 7 or 11 (d) of the Canadian Charter of Rights and Freedoms . The respondent has failed to establish that s. 715.1 offends the rules of evidence against the admission of hearsay evidence and prior consistent statements. In addition, as there is no constitutionally protected requirement that cross-examination be contemporaneous with the giving of evidence, the respondent has failed to show that his fundamental right to cross-examine has been violated. The admission of the videotaped evidence does not make the trial unfair or not public, nor does it in any way affect an accused's right to be presumed innocent.
Moreover, the incorporation of judicial discretion into s. 715.1, which permits a trial judge to edit or refuse to admit videotaped evidence where its prejudicial effect outweighs its probative value, ensures that s. 715.1 is consistent with fundamental principles of justice and the right to a fair trial protected by ss. 7 and 11 (d) of the Charter . The age limit of eighteen contained in s. 715.1 is not arbitrary, but rather is consistent with laws which define the age of majority to be eighteen years and with the special vulnerability of young victims of sexual abuse.
As I have found there to be no violation of either s. 7 or 11 (d) of the Charter , it is unnecessary to consider whether s. 715.1 can be justified under s. 1 of the Charter .
Finally, I would agree with my colleague's disposition of the non-constitutional issues in this case. The trial judge did not make a reversible error when he concluded that, in the circumstances of the case, the videotape was made within a reasonable time. Nor did he err in stating or applying the test to be used in weighing the evidence. Lastly, the respondent failed to establish that the trial judge's intervention during the trial raised a reasonable apprehension of bias.
Accordingly, I would allow the appeal and reinstate the conviction at trial.
The reasons of L'Heureux-Dubé and Gonthier JJ. were delivered by
L'Heureux-Dubé J. -- This case raises a number of complex and important issues. Among these are the accused's right to a fair trial and to face his accuser and the criminal justice system's responsibility to seek the truth. As well, the complexities of dealing with the special circumstances involving child witnesses and the difficulties that child victims encounter when attempting to relay their plight of abuse to the courts must be examined. More precisely, this Court is being asked to determine the constitutionality of s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 (as amended by c. 19 (3rd Supp.), s. 16 ), which states:
715.1 In any proceeding relating to an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or 273, in which the complainant was under the age of eighteen years at the time the offence is alleged to have been committed, a videotape made within a reasonable time after the alleged offence, in which the complainant describes the acts complained of, is admissible in evidence if the complainant, while testifying, adopts the contents of the videotape.
Judgment was rendered, in part, from the bench on June 15, 1993, answering the constitutional questions in the following terms:
We reserve our decision as regards the non-constitutional grounds raised by respondent. We are ready to answer the constitutional questions now, with reasons to follow.
1.Does s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 , in whole or in part, limit the rights guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms ?
Answer: No.
2.If the answer to the first question is in the affirmative, does s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 , constitute a reasonable limit prescribed by law as can be demonstrably justifiable in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: This question does not arise.
3.Does s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 , in whole or in part, limit the rights guaranteed under s. 11 (d) of the Canadian Charter of Rights and Freedoms ?
Answer: No.
4.If the answer to the third question is in the affirmative, does s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 , constitute a reasonable limit prescribed by law as can be demonstrably justifiable in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: This question does not arise.
Facts
In October 1988, the respondent, D.O.L., was charged with three counts of sexual assault alleged to have taken place between September 1985 and March 1988, and three counts of sexual interference alleged to have occurred between January 1988 and March 29, 1988.
The complainant, R.S., was born on March 12, 1979, and disclosed the sexual occurrences in March of 1988. In May 1988, following a medical examination of the complainant, the police began an investigation of the allegations. In August 1988, a videotape interview of the complainant took place. The complainant, a female child who was nine years old at the time of the videotaping, indicated that the respondent, her grandfather, had put his hand inside her "privates" and had touched her "chest". She further indicated that this had happened "lots of times". R.S. also mentioned that the respondent had warned her not to tell anybody or else he would hurt her.
The respondent was charged in October 1988. At the preliminary inquiry, held in May and June 1989, the complainant testified before the court. At the trial, held in November and December 1989, the Crown sought to introduce the videotaped interview of the complainant, pursuant to the dispositions of 715.1 of the Criminal Code . The respondent moved for a declaration that s. 715.1 was unconstitutional as it contravened ss. 7 and 11(d) of the Canadian Charter of Rights and Freedom. The trial judge dismissed the motion, upholding the constitutionality of s. 715.1 .
Following a voir dire, at which the complainant, her mother and the sergeant involved in making the videotape testified, the videotaped interview was admitted into evidence. The trial judge convicted the respondent on one count of sexual assault. No verdict was entered with respect to the count of sexual interference by application of the Kienapple principle. The other counts of sexual assault related to two other complainants.
On June 18, 1991, the Court of Appeal for Manitoba allowed the respondent D.O.L.'s appeal against conviction and declared s. 715.1 of the Criminal Code unconstitutional: (1991), 73 Man. R. (2d) 238, 3 W.A.C. 238, 6 C.R. (4th) 277, 65 C.C.C. (3d) 465. A new trial was ordered.
Judgments
Court of Queen's Bench of Manitoba
At trial, Scollin J. found no merit in the respondent's argument that s. 715.1 of the Criminal Code offended the Charter . With regard to the correct test to be applied to ascertain guilt, he considered the duty of a judge or jury to determine whether, upon the whole of the evidence, they were satisfied beyond a reasonable doubt that the accused had committed the offence charged. He held that the test to be met is whether the Crown has proven their case beyond a reasonable doubt and that:
Whether an account given by, or on behalf of, an accused might reasonably be true, is not in my view the honest and proper and established test of whether the Crown's evidence should be rejected. It is simply one factor in assessing the overall impact of the evidence as a whole.
Applying this test, Scollin J. found the respondent guilty on one count of sexual assault.
Court of Appeal for Manitoba (1991), 6 C.R. (4th) 277
In four separate and concurring opinions, the Court of Appeal for Manitoba allowed the respondent D.O.L.'s appeal against conviction, declared s. 715.1 of the Criminal Code unconstitutional and ordered a new trial.
Helper J.A. (Scott C.J.M. concurring)
Helper J.A. noted the impossibility of enumerating an exhaustive list of the principles of fundamental justice and the importance of maintaining a balance between the accommodation of changing values and the protection of the rights of accused persons. She held that s. 715.1 represents a departure from the general principles of evidence in criminal proceedings. Although Helper J.A. recognized that the purpose of s. 715.1 of the Criminal Code was valid and the concern a substantial and pressing one, she expressed grave concern with regard to the effect of the legislation. She stated (at pp. 290-91):
Section 715.1 clearly offends the common law evidentiary rule that precludes the admission in evidence of previous consistent statements. Its effects, however, are not confined only to common law rules of evidence. The legislation ignores two fundamental elements of the criminal trial process which have developed in our judicial system over the centuries:
(1) the general principle that evidence must be presented in a public courtroom, in the presence of the accused, accompanied by some formality; and
(2) the right of an accused to be present when evidence is presented or recorded in order to have the opportunity to test that evidence by cross-examination of the witness.
Section 715.1 violates both s. 7 and s. 11 (d) of the Charter and results in an unfair trial.
Helper J.A. then considered whether s. 715.1 of the Criminal Code may be justified under s. 1 of the Charter . Notwithstanding her determination that the purpose of the legislation, increasing evidence in the prosecution of sexual offences, is a pressing and substantial concern to society, she concluded that s. 715.1 did not meet its objective. She held (at pp. 292-93):
Section 715.1 does not meet its objective. There appears to be little sense in protecting a child from the formality of a courtroom for the purposes of direct examination and yet subjecting him or her to the rigours of cross-examination in the setting which is designed to be avoided by the legislation. To require a child to testify at a preliminary hearing, on a voir dire at trial, to be cross-examined and be shielded only in the giving of direct evidence, falls short of the aim of the legislation.
Further, she discussed whether the rights of an accused are infringed as little as possible by s. 715.1 and held (at p. 300):
I cannot read into a legislation a requirement that the Crown prove either reliability or necessity. A comparison of ss. 715.1 and 715 leads me to conclude that the criteria of necessity and reliability were specifically excluded from s. 715.1 . The result is that the accused faces an impossible onus and the inherent discretion of a trial judge is rendered nugatory. Once the Crown has proved the minimum requirements of s. 715.1 , the accused must convince the court that the prejudicial value of the evidence outweighs its probative value or the circumstances of the taking of the evidence are unfair.
The first test cannot be met. There is no question the evidence is prejudicial. Its probative value is the essence of the Crown's case.
The second test is equally inapplicable. The legislation specifically provides for the taking of evidence in the absence of the accused, without his knowledge, without court supervision and without the opportunity at the time to cross-examine. The legislation, therefore, precludes the exercise of any real judicial discretion. It instead provides for the mechanical application of the legislation.
Accordingly, she concluded that the infringement resulting from s. 715.1 may not be justified under s. 1 of the Charter and the section was, thus, unconstitutional.
Twaddle J.A.
Twaddle J.A. commenced his analysis by declaring that s. 715.1 of the Criminal Code constituted a departure from the general rule that evidence in a criminal trial can only be given by a witness viva voce in the courtroom. In reference to s. 7 of the Charter , although recognizing that this section does not guarantee adherence to established principles or rules of evidence, he found a principle of fundamental justice in the law of evidence that precluded the admission of videotaped testimony. According to Twaddle J.A., where the possibility exists that an accused may go to prison, an out-of-court statement by a witness can only be admitted to prove the truth of the witness' statement if the guarantees of necessity and reliability are met. Consequently, he considered whether s. 715.1 of the Criminal Code addressed the requirements of necessity and reliability. He indicated concern that the section was not limited to instances where the videotaped evidence was necessary in order to protect the young complainant from the trauma of testifying. In his opinion, the desirability to protect a class of witnesses did not meet the criterion of necessity. As to the requirement of reliability, Twaddle J.A. held that (at pp. 312-13):
The guarantee of reliability is addressed by the requirement that the child testify. But, paradoxically, it is this very requirement which makes the admission of the statement unnecessary. If the statement is to fulfil the reliability test, it must fail the test of necessity.
In any event, the opportunity which the accused is given to cross-examine the witness at the trial is insufficient to guarantee the reliability of the statement.
Having found that s. 715.1 of the Criminal Code infringed s. 7 of the Charter , Twaddle J.A. proceeded to determine whether s. 715.1 was justified pursuant to s. 1 of the Charter . Although he was convinced that the goals of recording the child complainant's evidence before it is weakened by the lapse of time and protecting the child were of pressing and substantial importance, he maintained that the first part of the goal was achieved without regard to the right of the accused to reliable evidence. Twaddle J.A. was also of the view that, since s. 715.1 did not exempt the child from giving evidence at the preliminary inquiry or from being subject to cross-examination at trial, the purpose of the section was not achieved. He concluded that the section could not be justified under s. 1 of the Charter .
O'Sullivan J.A.
O'Sullivan J.A. agreed with the reasons of Helper J.A. and Twaddle J.A. However, he wrote separate reasons on three issues not considered by them, the burden of proof, the time factor and the discretion conferred upon the trial judge.
With regard to the burden of proof, O'Sullivan J.A. felt that the trial judge erred in imposing too high a burden on the respondent. With regard to the time factor, he determined that the trial judge made an error in holding that the tape was taken within a reasonable time of the alleged offences. Finally, O'Sullivan J.A. held that a discretion conferred upon the trial judge to exclude evidence on the ground of unfairness should not be read into s. 715.1 but, if such a discretion did exist, it should be to prevent against evidence being rehearsed, coached or led.
Lyon J.A.
Lyon J.A. concurred with the common results arrived at by his colleagues. He did not agree, however, with O'Sullivan J.A. that the trial judge imposed too high a burden on the respondent. In considering the general rule to determine guilt or innocence of an accused and its application, he wrote (at pp. 322-23):
I am satisfied that the sheet anchor test in any criminal prosecution, indeed, the only fundamental rule of general application in determining guilt or innocence, is whether the Crown, on the totality of the evidence, has proved its case beyond a reasonable doubt. If it has, the accused must be convicted. If, on the other hand, the trier of fact is left with a reasonable doubt as to the accused's guilt, the accused is entitled to the benefit of that doubt and he must be acquitted. There is no alternative or substitute for this basic principle of law.
The Issues
The four following constitutional questions were stated by the Chief Justice on September 16, 1992:
1.Does s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 , in whole or in part, limit the rights guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms ?
2.If the answer to the first question is in the affirmative, does s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 , constitute a reasonable limit prescribed by law as can be demonstrably justifiable in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?
3.Does s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 , in whole or in part, limit the rights guaranteed under s. 11 (d) of the Canadian Charter of Rights and Freedoms ?
4.If the answer to the third question is in the affirmative, does s. 715.1 of the Criminal Code, R.S.C., 1985, c. C-46 , constitute a reasonable limit prescribed by law as can be demonstrably justifiable in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms ?
As I noted earlier, the judgment rendered from the bench on June 15, 1993 answered questions 1 and 3 in the negative and, as a result, questions 2 and 4 did not need to be answered.
In addition to the above constitutional issues, the respondent raised the following three non-constitutional issues:
1.Whether the videotaped testimony of R.S. has been recorded within a reasonable time after the offence, pursuant to s. 715.1 of the Code.
2.Whether the trial judge erred in failing to use the "might reasonably be true" evidentiary test to determine if the accused should be convicted or acquitted.
3.Whether the trial judge's interjections and commentary during the questioning of the witnesses created a reasonable apprehension of bias.
The reasons underlying the Court's unanimous decision as regards the constitutional questions, as well as the decision with regard to the non-cons