R. v. L. (D.O.) [1993] 4 S.C.R. 419: -- 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 -- Fair trial -- Public hearing -- Presumption of innocence

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.

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