R. V. V. (F.S.)
QB05308
Date of Judgment: July 6, 2005
Number of Pages: 19
QUEEN'S BENCH FOR SASKATCHEWAN
Citation: 2005 SKQB 303
Date: 20050706
Docket: Y.O.A. No. 12/2003
Judicial Centre: Melfort
BETWEEN:
F.S.V.,
Appellant
- and -
HER MAJESTY THE QUEEN,
Respondent
Counsel:
Robert L. Borden for the appellant
Gary J. Parker for the respondent
JUDGMENT ALLBRIGHT J.
July 6, 2005
Orders have been made in this case prohibiting publication of any information that could disclose the identify of the young person pursuant to s. 75(3) of the Youth Criminal Justice Act or that could disclose the identify of the complainant pursuant to s. 486(3) of the Criminal Code of Canada.
[1] The respondent was convicted as a young offender, by a judge of the Provincial Court of Saskatchewan, of sexual assault on a 13-year-old. The respondent appealed that conviction to this Court and seeks to have that conviction set aside on the basis that "the learned trial jude [sic] misinterpreted evidence, ignored relevant evidence, considered irrelevant or inadmissible evidence, and made a decision that was contrary to the weight of evidence and contrary to law."
[2] At the initial hearing of the appeal, the matter of the psychologist's report and the information contained in it was raised by counsel for the appellant. In considering this aspect of the appeal, I concluded:
While for the purposes of this appeal and the consideration of the "fresh evidence", I am assuming that following the application under s. 276.1 and the hearing under s. 276.2 that the evidence would be found to be admissible, my assumption, for such analysis purposes, should in no way be taken as a determination that such evidence would be, or should be, or is admissible for the purpose as proposed by the appellant. My assumption is made simply to define the parameters of the potential impact of the evidence as proposed by the appellant.
[3] Thereafter, I concluded that such fresh evidence would meet the criteria in R. v. Palmer, [1980] 1 S.C.R. 759, and directed a new trial.
[4] The Crown appealed this determination and in allowing the appeal, the learned Justice noted:
[2] The Queen's Bench judge concluded that there was no basis for the appeal but for the psychologist's report tendered as new evidence. The Crown argues that the Queen's Bench judge, in assessing the report as new evidence and applying the test in R. v. Palmer, [1980] 1 S.C.R. 759, erred in that, instead of making a finding on the admissibility of the evidence, he abdicated his responsibility by merely saying he assumed it would be admissible and ordering a new trial.
[3] We agree that the Court of Queen's Bench judge here should have ruled on the applicability of all of the four Palmer criteria insofar as they related to his area of responsibility as an appellate court judge. It is always, of course, the trial judge, if a new trial is ordered, who will make the final ruling based on how matters develop and are presented in such new trial.
[4] Here, the requisite decision on Palmer was avoided; accordingly, the matter must be returned to the Court of Queen's Bench for an appropriate appellate review to be conducted, including a determination, after hearing such evidence as may be deemed appropriate on whether all four of the criteria under Palmer have been met so as to require a new trial to be ordered.
[5] In accordance with this direction, for the purposes of this appeal and applying the criteria in s. 276, I am satisfied that the fresh evidence is admissible evidence and that it meets the criteria set forth in R. v. Palmer, supra. The reasons for my conclusion follow hereafter.
Proceedings in the Trial Court
[6] Six witnesses were called on behalf of the Crown during the trial, and the defence called two witnesses. The primary Crown witness was the complainant, C.V. The appellant, F.S.V., also testified. As part of the Crown's case, a videotape of the statement of C.V. was also entered into evidence. In addition to the viva voce evidence, a number of tapes and other items were entered as exhibits at the trial.
[7] The Court reserved judgment, and on December 10, 2002, the learned Youth Court judge found the accused guilty of having committed a sexual assault.
[8] On January 27, 2003, the learned Youth Court judge imposed sentence on the appellant, and at that time the appellant was placed on a period of probation for 18 months with various conditions.
[9] The decision of the learned Youth Court judge, in its entirety, provides as follows:
THE COURT: This is the V. matter, adjourned to today's date for decision. I'm ready to proceed with that now.
F.S.V. stands charged that between the 6th day of June, 1997, and the 17th day of September, 2001, at Star City District, in the Province of Saskatchewan, being a young person within the meaning of the Young Offenders Act, did on numerous occasions commit a sexual assault on C.V., contrary to section 271 of the Criminal Code.
The complainant and the accused in these proceedings are sister and brother. The complainant testified that her brother, F., did sex with her lots of times. She testified that she sucked his penis lots of times. She says his penis would get harder and stronger when she would suck it. F. would say, it feels good. The complainant testified that she would suck F.'s penis until she tasted something really funny and then she would stop. She said, it tasted gross and salty and that it was whiteish [sic]. C.V. testified that sometimes F. would put his penis in her hole. She says that "when he did sex, sometimes it hurted in the hole". She says, "I don't know what it is called between my legs". She says that when they finished she would wipe off her pants with a cloth and put it in the dirty clothes.
The children's mother, R.V., testified that when she taught her children about sex education, she used the word "hole" instead of "vagina" because of their limited cognitive abilities.
A videotaped statement by C.V. made on September 19, 2001, was tendered into evidence. In this statement the complainant states that her brother, F., and her did sex sometimes when her mother wasn't home. When asked what happened when they did sex, she said that they kissed and stuff, "I sucked his penis". While there are references to actual sexual intercourse in the videotape, it is not clear from the context of the questions and the answers whether she is saying actual physical intercourse took place or not.
While the Court finds that the complainant's statements on the videotape concerning sexual activities with F. are credible and consistent with what she testified to at trial, the Court is quite skeptical about some of the other statements in the videotape, particularly in the latter part of the tape where the Court finds some of the questions to be leading and suggestive and often lacking in context.
It is the Court's view that the prosecution's case rests entirely on the testimony and the videotaped statement of C.V. The evidence of the other Crown witness [sic] and even that of defence witness, R.V., provide some context for events, but their evidence is as easily consistent with no sexual activity having taken place as with such sexual activities.
The Court finds the complainant's evidence convincing and compelling. The weaknesses in the complainant's comprehension and understanding of events is what gives her testimony its strength. The Court is convinced that C. did in fact experience the sexual activity she describes. These were not events she heard about or saw in movies. They were not part of some sexual fantasy. The nature and details of her description convinces me that it was formed from personal experience. The Court is also convinced that the sexual activity she described took place with F. C. does not appear traumatized by this experience. She appears for the most part to be a willing participant. She was not bashful or embarrassed when talking about it. In fact I believe she does not have an appreciation that F. may have done something seriously wrong or illegal and that he is in serious trouble. C. does not understand the seriousness of these allegations or their potential consequences. It was just something that they did that she knew they weren't supposed to do. She appears to like F. and simply stated what they did innocently and in a forthright and straightforward manner. She says that when she told her father what they did or what they were doing, he told her she shouldn't be doing that because it's illegal. This is not drawing a definitive conclusion on what her father may have said, but it is a description of what C. says he said. Another example of her innocence about all this is when she asked the police officer, "if we do this again, should we tell you guys?".
As previous stated, C. and F. are sister and brother. They are the adopted children of D. and R.V. The V.s have five other children, A., age 22 and A., age 17, who are their natural-born children, and three other adopted children, D., A. and O. If I understand the evidence correctly, F., A., C. and O. all have the same birth mother. The evidence indicates that all of the adopted children suffer from alcohol-related neurological development defects to some degree.
The Court finds R.V. to be a well-educated, highly-competent and intelligent witness and accepts her evidence that in 2001, at age 16, F. was functioning at a grade six level and that C., at age 13, was functioning at the level of a six-year-old and at an early grade one level. Also, that C. required a lot of supervision to avoid problems, that she was easily led, that she was basically a high-maintenance child. The fact that she has been in four different foster homes since September 11, 2001, attest [sic] to the fact that C. was not an easy child to raise and look after. A lack of judgment as suggested by Dr. McKenna is also evident in what is going on here.
However, the fact that C. has development problems does not in and of itself make her evidence untrustworthy. Looking at her evidence in the context that she has previously described convinces me that it was factual, honest and truthful. Considering the three-year age differential between F. and C., and considering the provisions of section 150.1(1)(2) of the Criminal Code, even though the Court considers the sexual activity between F. and C. to be primarily consensual, consent is not a defence to these charges.
The complainant was not very concrete with the timeline concerning when these sexual activities took place. However, it is clear from her evidence that most of the sexual activity took place in the year or two immediately preceding September 19, 2001.
A statement given by the accused to a police officer was tendered in evidence with the consent of the defence. The prosecution has suggested to the Court that it could draw an adverse inference from the accused's refusal to answer a particular question. In his statement the accused answered a few of the questions put to him by a police officer, but he refused to answer most, asserting that he was not answering the questions because his lawyer wasn't present. It is the Court's view that to draw an adverse inference from the accused's refusal to answer a particular question would totally defeat the accused's right to remain silent, a right incidentally that the police officer doing the interviews told the accused he had a right to exercise before he even started asking the accused any questions.
The accused testified in these proceedings. He categorically denied being involved in any sexual activity with C.V. or anyone else. He says he didn't have sexual intercourse with C., that C. never sucked his penis. He says that C. and A. always wore their clothes at night, a fact that is confirmed by Mrs. V. and A.V. F. says that at night C. would come into his room and crawl in his bed and they could kick her out. Mrs. V. also confirms that C. was a wanderer at night and would try and crawl in bed with the boys and they would have to send her back to her room. This is unusual behaviour that is taken into account, but it does not detract from the complainant's evidence about the sexual activities.
In the final analysis, the Court finds beyond a reasonable doubt that F.V. was involved in sexual activities with his sister, C., C.V., on a number of occasions. The evidence does not establish how often or over how long a period of time. It does establish, however, that it took place within a timeframe when, even if it was consented to, it was an illegal act and constitutes a sexual assault. In making this finding, the Court is obviously rejecting the evidence of F.V. There was nothing in F.V.'s evidence, independent of C.V.'s evidence, whereby the Court could say that F.V.'s evidence is untrue.
What the Court is saying is that it believes C.V.'s evidence, and therefore, on that basis, disbelieves F.V.'s evidence. The Court says further that in addition to disbelieving F.V.'s testimony, the evidence of the defence in this case does not raise a reasonable doubt in the Court's mind. Further, there is nothing in the evidence in this case that raises a reasonable doubt in the Court's mind.
The Court must therefore find the accused has committed a sexual assault and the Court must find him therefore guilty as charged.
Analysis
[10] Section 683 of the Criminal Code, dealing with appeals, provides an appellate court with the jurisdiction to admit "fresh evidence" where it is appropriate to do so.
[11] The Supreme Court of Canada in R. v. Palmer, [1980] 1 S.C.R. 759, considered the principles upon which fresh evidence should be admitted. The Court concluded that the following criteria must be met:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, although this principle is not applied with the same strictness in a criminal trial as in a civil trial;
(2) The evidence must be relevant in that it bears upon a decisive or potentially decisive issue;
(3) The evidence must be credible; and
(4) It must be such that, if believed, it could have affected the result.
An appellate court's power under s. 683 is limited to admitting as fresh evidence, admissible evidence only. If evidence is not otherwise admissible, then an analysis under the Palmer, supra, criteria is not warranted. Only if the proposed evidence is, firstly, admissible, and, secondly, meets the criteria in Palmer, supra, may it then be considered by the appeal court as fresh evidence, forming part of the case on appeal.
[12] I turn now to a consideration of the first question, that being whether the proposed fresh evidence is admissible.
[13] The essence of the "fresh evidence" emanates from the report of Dr. [T.Z.], a psychologist involved in family and child counselling. Dr. [T.Z.], in September 2002, interviewed the complainant, C.V., along with other individuals. As part of her overall report, Dr. [T.Z.] chronicled information provided to her by the complainant. A portion of that interview as contained in the report provides as follows:
C. reported that she likes music, television, biking, and "guys". She appeared preoccupied with finding a boyfriend and frequently discussed going out with boys or watching boys who are "sexy" or "hot". She said that she has been spending considerable time with "Willy," an older man she has been meeting who sits on a bench in the business district of her town. She appeared to enjoy the attentions of this man, saying that he gives her candy and "acts nice." We discussed issues of personal safety, but C. had difficulty appreciating the inherent dangers of such a situation. Ms. Holmen was advised to monitor this carefully and discuss the situation with local R.C.M.P.
Her naiveté regarding personal safety and others' intentions became more clear when she described an incident during which she met a young man at a Saskatoon swimming pool. He invited her to come with him to "get snacks," and the two reportedly left the swimming pool on his bicycle. According to C., they went to a park by the river and then, she said, "He had sex with me." C. said that she was surprised but thought that she should do what he told her to do and "just get it over with." She said that when F. would have sex with her, that is what she would tell herself - "Just get it over with." C. said that after that sex was over, the man from the pool "saw some of his friends and said he had to go." She said she knew the sex was over when his "white stuff" came out. He then reportedly left her by the river to walk back to the pool on her own.
[14] As noted, Dr. [T.Z.] interviewed C.V. on September 7 and September 21, 2002. Her report was completed on December 22, 2002, and she provided that report to the Department of Social Services by fax on December 23, 2002. Shortly thereafter, the report was provided to Crown counsel, and he immediately provided it to the appellant's counsel. The date of the report is significant in that the report was completed following the decision of the learned Youth Court judge on December 10, 2002. However, prior to sentencing, it had been provided to counsel for the appellant. I am advised at the time of sentencing, no reference was made to the report or the information contained in it.
[15] The relevant provisions of the Criminal Code relating to evidence of a complainant's sexual activity are as follows:
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society's interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant's personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
276.1 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2).
(2) An application referred to in subsection (1) must be made in writing and set out
(a) detailed particulars of the evidence that the accused seeks to adduce, and
(b) the relevance of that evidence to an issue at trial,
and a copy of the application must be given to the prosecutor and to the clerk of the court.
(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.
(4) Where the judge, provincial court judge or justice is satisfied
(a) that the application was made in accordance with subsection (2),
(b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and
(c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2),
the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2).
276.2 (1) At a hearing to determine whether evidence is admissible under subsection 276(2), the jury and the public shall be excluded.
(2) The complainant is not a compellable witness at the hearing.
(3) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and
(a) where not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and
(c) where all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
(4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.
276.3 (1) No person shall publish in a newspaper, as defined in section 297, or in a broadcast, any of the following:
(a) the contents of an application made under section 276.1;
(b) any evidence taken, the information given and the representations made at an application under section 276.1 or at a hearing under section 276.2;
(c) the decision of a judge, provincial court judge or justice under subsection 276.1(4), unless the judge, provincial court judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the decision may be published; and
(d) the determination made and the reasons provided under section 276.2, unless
(i) that determination is that evidence is admissible, or
(ii) the judge, provincial court judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the determination and reasons may be published.
(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
[16] It is germane to identify what evidence in law is capable of being "fresh evidence" in this instance. The appellant's notice pursuant to s. 276 indicates that the appellant seeks to enter the report of Dr. [T.Z.] and more specifically seeks an order from the Court, following an appropriate hearing, such as to allow the report to be "tendered, proffered or adduced as new evidence."
[17] I am not satisfied that the appellant has demonstrated that the report itself is admissible for the purposes of proving the truth of the contents of that report. Nor, would the appellant be entitled to call Dr. [T.Z.], the author of the report, to give evidence to the court as to the comments made to her by the complainant. Both of these scenarios would represent the appellant attempting to introduce hearsay evidence, and I am of the view that the appellant is not able to demonstrate the dual criteria of necessity and reliability in order to justify a court receiving this evidence in either such form.
[18] What I construe the "fresh evidence" to be in this matter is simply the new facts of the existence of the report and that statements were made by the complainant to the author of that report. At most, if the appellant were to meet the criteria contained in ss. 276, 276.1, 276.2 and 276.3, the information in the report would provide a basis for counsel for the appellant to cross-examine the complainant on the disclosures contained in the report.
[19] The appellant has now brought an application for a hearing pursuant to s. 276.1, and that hearing has occurred. Transcript evidence from the earlier proceeding has been tendered to the Court as part of the hearing. By agreement, the Crown and defence accept this as evidence before the Court.
[20] In considering all of the criteria set forth in the relevant sections, the "fresh evidence" as contained in the report of Dr. [T.Z.], wherein she reports statements made to her by the complainant, is admissible evidence. While the report itself may not be tendered directly into evidence, the information contained in the report is information which counsel for the appellant may use to cross-examine the complainant as to the complainant's involvement in other sexual activity, specifically with the individual at a Saskatoon swimming pool. In my view, the evidence is not directed to one of the two prohibitions contained in s. 276(1). The evidence is not directed to support an inference that by reason of this sexual activity, the complainant is more likely to have consented to the sexual activity that forms the subject matter of the charge or that the complainant is less worthy of belief. In this matter, consent is not in issue as the position advanced by the appellant is that the activity simply did not occur. In carefully examining the intent of bringing forth this evidence, I have concluded that it is not designed to show that the complainant is simply less worthy of belief. The evidence has the very real potential to go to the broader aspect of providing an explanation for the complainant's sexual experience resulting from an encounter with someone other than the accused. Further, in accordance with the requirements of s. 276(2), I find that the sexual activity referenced in the report of the psychologist is of a specific instance of sexual activity and is relevant to an issue at trial, that issue being whether the sexual experiences of the complainant resulted from involvement with the appellant or from the individual at the swimming pool in Saskatoon. Further, I am of the view that this evidence potentially has significant probative value and that it is not substantially outweighed by the danger of prejudice to the proper administration of justice. In reaching this conclusion, I am mindful of the catalogue of criteria set forth in s. 276(3), and I am particularly of the view that s. 276(3) is applicable as I find that there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case.
[21] Having determined that such evidence is admissible, I turn now to an analysis of whether such evidence meets the four criteria set forth in R. v. Palmer, supra. To reiterate, the criteria articulated by the Supreme Court of Canada in R. v. Palmer, supra, are:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, although this principle is not applied with the same strictness in a criminal trial as in a civil trial;
(2) The evidence must be relevant in that it bears upon a decisive or potentially decisive issue;
(3) The evidence must be credible; and
(4) It must be such that, if believed, it could have affected the result.
[22] In addressing these criteria individually, I make the following observations. From the oral evidence adduced at trial and the documents surrounding the oral evidence, I am satisfied that counsel for the appellant had no knowledge of the existence of this evidence (contained in the report) and was unaware that the complainant had met with Dr. [T.Z.], the psychologist, in September 2002. By the time the report became known to counsel, the Court had convicted the appellant. Accordingly, this evidence could not have been adduced at trial by due diligence, and therefore the first criterion is satisfied.
[23] I am also of the view that the evidence is relevant and bears directly upon a potentially decisive issue, that being whether the experience which the learned Youth Court judge concluded the complainant had been through, arose as a result of engaging in sexual activity with the appellant, which he denied, or whether that experience was obtained through the involvement in sexual activity with the individual at the swimming pool in Saskatoon.
[24] I am satisfied in this instance that the evidence is credible in that it is capable of belief. Here, the complainant provided this information to the child psychologist, and the evidence as reflected in the psychologist's report directly attributes these comments to the complainant.
[25] Finally, in addressing the fourth criterion, I am of the view that if, on cross-examination this evidence was placed before the trial court, it could have affected the result. I am particularly mindful in this regard of the learned Youth Court judge's comments in his adjudication wherein in part he observed:
The Court finds the complainant's evidence convincing and compelling. The weaknesses in the complainant's comprehension and understanding of events is what gives her testimony its strength. The Court is convinced that C. did in fact experience the sexual activity she describes. These were not events she heard about or saw in movies. They were not part of some sexual fantasy. The nature and details of her description convinces me that it was formed from personal experience. The Court is also convinced that the sexual activity she described took place with F. . . .
. . .
. . . In making this finding, the Court is obviously rejecting the evidence of F.V. There was nothing in F.V.'s evidence, independent of C.V.'s evidence, whereby the Court could say that F.V.'s evidence is untrue.
[26] In summary, I find the evidence is admissible under s. 276, in the fashion which I have earlier described and that this "fresh evidence" for the purposes of the appeal meets the four criteria set forth in R. v. Palmer, supra.
[27] Accordingly, the appeal is allowed, the conviction is quashed, and I order that a new trial is to occur. As commented upon by the Court of Appeal, I observe that it is always, of course, the trial judge, where a new trial has been ordered, who will make the final ruling based on how matters develop and are presented in such a new trial.
[28] Order accordingly.
J.
G.N. Allbright
