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EVIDENCE - Admissibility - Burden of proof - Hearsay rule - Statements by incompetent persons - Children - Witnesses - Credibility - Children - Prior consistent statements

Thursday, June 01, 2017 @ 8:46 AM  

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Appeal by H from his convictions on seven counts of sex-related offences and two counts of assault involving his three step-daughters. The three children provided statements to police, in March 2013, prior to H being charged. With respect to the oldest child, the Crown sought to admit her statement when she testified via video link. The child gave evidence about her age and where and when she lived with H when the offences took place, and agreed under cross-examination that she gave her statement a year or a year and one-half after the last offence. The judge accepted that there was no evidence that the time between the alleged offences and the child giving her statement was unreasonable, and, because the child adopted her statement, admitted it into evidence. With respect to the two other children, the Crown did not seek to enter into a voir dire. The Crown referenced a call with defence counsel during which defence counsel indicated there would be no opposition to the admission of the statements. Defence counsel indicated that the Crown was correct. The video statements were played and the children adopted them. The judge accepted that the statements were made within a reasonable time as well.

HELD: Appeal allowed and new trial ordered. At minimum, there was a 22-month delay between the last alleged offence committed against the oldest child and her March 2013 statement. With respect to the other children, the delay was even longer, up to four years. The delays were not presumptively reasonable and the judge erred in placing the burden of proof on the defence to establish that they were unreasonable. The judge also erred in failing to consider the reasonableness of the delay in the case of the younger two children simply because the defence consented to the admission of their statements. In not directing himself to the relevant conditions prescribed in s.715.1(1) of the Criminal Code concerning the admissibility of the statements, the trial judge made a reversible error. Counsel's consent was a factor, but it was not sufficient to fulfill the statutory obligation to determine the legal issue of admissibility of the video-recorded evidence. The appeal court was not in a position to weigh the evidence about the children’s ages, their relationship to H, their living situation and other factors relevant to whether or not their statements should have been considered reliable despite the delay in providing them.

R. v. R.A.H., [2017] P.E.I.J. No. 10, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., April 25, 2017. Digest No. TLD-May292017008