R v CC, 2019 ONSC 3232
Under section 715.1 of the Criminal Code, what is a reasonable amount of time for a videotaped statement alleging sexual assault against a minor complainant to be made following the alleged offence?
In the case at bar, the court determined that the videotaped statement was made at least 3 years and 5.5 months after the 15-year-old complainant was alleged to have been sexually assaulted. The court stated at paragraph 27 that, “it is not unusual for a victim of sexual assault to be reluctant in reporting the incident” and admitted the statement as sufficiently contemporaneous in the circumstances.
The Fine Print
Section 715.1 establishes a statutory exception to the hearsay rule for videotaped evidence and sets out criteria to be met which include:
The victim in the video recording was under 18 years old when the alleged offence occurred;
The video recording was “made within a reasonable time after the alleged offence”;
The video victim “describes the acts complained of” in the video recording;
The victim can testify and “adopts the contents of the video recording”;
The judge does not believe that the admission of the video recording “would interfere with the proper administration of justice”.
The court noted at paragraph 28 that one of the reasons for this section was to reduce the likelihood of further trauma on the complainant.
The defence had relied upon the Ontario Court of Appeal case of R v S(P), 2000 CarswellOnt 1341 (CA) where a 2-year delay in making a videotaped statement after a sexual assault was determined to be “borderline” but reasonable. The complainant there was 8-years-old at the time of the alleged incident and 12 when the trial commenced. The defence argued several indicia, such as intimidation and embarrassment were present in that case, but not at the case at bar and thus the statement cannot be justified as reasonable after such a delay.
Ultimately the court grated the Crown’s application, stating at paragraph 28 that, “[t]his is a Judge alone trial and the defence will have the usual rights to cross-examine the complainant on all of her evidence including the videotaped evidence.”