The R v H.( R.A.) Appeal & the Mishandling of Video-Recorded Evidence of Youth Victims
Videos and Youths
Under normal circumstances, a videotaped statement made by a complainant is hearsay and presumptively inadmissible as evidence. However, it is recognized that the challenges facing youth victims and witnesses while testifying in court can result in increased anxiety or further trauma. In the interest of minimizing this harm among vulnerable youth, s.715.1 of the Criminal Code creates a statutory exception to this evidentiary rule by permitting a video recording of youth under the age of eighteen to be admitted for the proof of its contents under certain conditions.
A recent decision of the Prince Edward Island Court of Appeal in R v H.(R.A.)<1> examined the role of the appellate court in determining the admissibility of video recorded evidence by focusing on the reliability of delayed statements as well as what constitutes a reasonable delay.
At trial, the appellant was convicted of seven counts of sex-related offences and two counts of assault involving his three step-daughters, C.V, T.V., L.V., all under the age of 16 at the time of the offences. The victims alleged that they were subjected to invasive sexual conduct by their step-father in video-recorded statements submitted to police on 13 March, 2013. The trial judge admitted the video of C.V. and held that the delay in submission, 12 to eighteen months, was reasonable following a voir dire based on the age of the victim and relationship to the accused. A voir dire regarding the statements of T.V. and L.V. was not entered, with the videos being played at trial following the defence’s statement that they would not oppose the testimony being played in court as they believed it was pursuant to s.715.1 of the Criminal Code. The victims properly adopted their statements, gave additional testimony, and were cross-examined at trial. The three recorded statements were subsequently tendered into evidence by the trial judge.
While the appellant submitted several grounds of appeal, the Prince Edward Island Court of Appeal examined if the trial judge erred in admitting the recorded statements of the three complainants under s.715.1 of the Criminal Code. Mitchell J.A. presented the purpose of s.715.1 in his reasoning, highlighting the importance of safeguarding young victims of sexual abuse from further trauma while aiding the preservation of evidence and the discovery of truth. He focused his analysis on the first admissibility condition of s.715.1, that video statements must be made within a reasonable after the alleged offence. It is this condition that goes to the reliability of the video-statement.
Mitchell J.A.’s statement that “the longer the delay the greater the concern about reliability and (…), the greater need for scrutiny” clearly summarizes his line of reasoning in this decision (at para 41). Much of current Canadian jurisprudence supports Mitchell J.A.’s reasoning as well. Longer delays in submitting recorded statements can be accepted by the court, but are regarded as outlier decisions, for reasons such as adverse effect on the memory of complainants and potential outside influence. However, determining a reasonable delay must be fact-driven and take into consideration extenuating factors such as fear, age, and relationship to the accused. Mitchell J.A.’s decision is clear; the trial judge’s accepted factors the delay are consistent with Canadian case law. The disappointing reality of the decision is that while the factors are commonly accepted and generate sympathy, J.A Mitchell finds it is not possible to determine that the video recordings were made within a reasonable time on the facts.
Mitchell J.A adapts a principled approach in demonstrating how the video recording evidence created significant and irresolvable issues for the case. He notes that the trial judge’s finding of a reasonable delay of 12-18 months in the recorded statement of C.V. is likely based on a question from the defence during the trial. He finds that the delay was in fact 22 and a half months on the facts. The trial judge’s reasons for delay cannot be found to be reasonable if they are not based on correct facts and evidence.
J.A Mitchell also determines that by accepting the defence counsel’s opinion that the recordings were pursuant to s.715.1, the trial judge failed to direct himself properly to the requirements of s.715.1 prior to determining the admissibility T.V. and L.V.’s recorded statements. This is a reversible error. J.A Mitchell also finds the trial judge reversed the onus of C.V.’s statement, also constituting an error. As a result, the appellant’s convictions and ancillary orders were quashed and a new trial was ordered.
The impact of the decision
The impact of J.A Mitchell’s decision is varies in complexity and helpfulness. Simply put, the decision reinforces the principles of fairness to appellants convicted on factually inadmissible evidence while attempting to balance justice for victims. It does not allow the law of evidence to be usurped by opinions and unsupported findings, and presents a principled approach based on the conditions of s.715.1 as a clear path to guide factually difficult cases. Mitchell J.A. shows a dedication to respecting the role of the trial judge in the morally frustrating, yet correct, statement that it is not the task of the court of appeal to weigh the evidence of a case. The decision will presumptively serve to maintain the status quo in Canadian jurisprudence of what is considered to be a reasonable time period under s.715.1, perhaps indicating a preference for a flexible yet principled range of reasonable time periods in the future.
The unfortunate outcome of this case was likely a re-traumatization of the victims. Mitchell J.A.’s reasoning indicates that if the Crown had properly fulfilled its burden of proof, and if the trial judge had properly weighed the evidence and had not reversed the onus to the defence, the appellant’s appeal may have been dismissed. The most important effect of J.A Mitchell’s decision should be to remind justices and lawyers alike to bear in mind the moral purpose of s.715.1 and the difficulties that are present in tendering recorded statements. While video recorded statements can be a valuable evidentiary tool, R v. H.( R.A.)<2> demonstrates that carelessly handled recorded statements can have the effect of destroying a case at the expense of the victims.
1 R. v. H.( R.A.)., 2017 PECA 5