User Name: Jordan Weisz

Date and Time: Nov 25, 2016 14:18

Job Number: 40121423

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1. R. v. Rohrich, [2009] O.J. No. 4050

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Jordan Weisz
 R. v. Rohrich, [2009] O.J. No. 4050
Ontario Judgments

Ontario Superior Court of Justice

Pembroke, Ontario
P.F. Lalonde J.
Heard: September 1, 2009.
Judgment: September 28, 2009.
Court File No. 08-0150, 08-0648
[2009] O.J. No. 4050 | 2009 CanLII 51510
Between Her Majesty the Queen, Applicant, and Jonathan Rohrich and Benjamin Gilbert, Defendants
(Respondents)

(22 paras.)

Case Summary

Criminal law — Evidence — Documentary evidence — Photographs and video recordings — Witnesses —
Application by Crown to have complainant testify by video link and to adopt contents of video statement to
police dismissed — Accused charged with sexual assault of 17-year-old female — Complainant 20 years
old at time of trial, had testified at preliminary inquiry and did not suffer from disability — Statement taken
without cautioning complainant, without being sworn or affirmed and in presence of complainant's mother
— Too much time had passed between time of alleged incident and taking of video statement to make it
reliable — Complainant talked to others prior to giving statement, which might have influenced content —
Criminal Code, s. 486.2, 715.1.

Application by the Crown to have the complainant testify by video link and to adopt the contents of her video
statement to police. The two accused were charged with sexual assault of a 17-year-old female. The
complainant alleged that she attended the residence of the accused, JR, and that the accused BG was also in
attendance. She consumed an alcoholic beverage, danced with JR, and shortly thereafter blanked out. When
she awoke sometime later, both of the accused were sexually assaulting her. The complainant provided a video
statement to military police within one month of the incident, which was lost. She provided a second video
statement to police, some 14 months after the incident, in which she was not sworn, did not affirm to tell the truth
and was not cautioned to avoid discussing her evidence with any third parties. The accused opposed the
Crown's application on the basis that the case did not required the extra measures provided for in either s. 486.2
or 715.1 of the Criminal Code and that the granting of such orders would interfere with the proper administration
of justice.

HELD: Application dismissed.

The complainant was 20 years old at time of trial, had already testified at the preliminary inquiry without
testimonial aids and did not suffer from a mental or physical disability. The statement was taken without any
caution being given to the complainant, without the statement being sworn or affirmed and in the presence of the
complainant's mother. Too much time had passed between the time of the alleged incident and the taking of the
second video statement to make it a reliable out of court statement. In addition, the complainant talked to a
number of persons prior to giving the statement, which might have influenced its content.

Jordan Weisz
 Page 2 of 5
R. v. Rohrich, [2009] O.J. No. 4050

Statutes, Regulations and Rules Cited

Criminal Code, R.S.C. 1985, c. C-46, s. 271, s. 486.2, s. 486.2(1), s. 486.2(2), s. 486.2(3), s. 715.1

Counsel

Elizabeth Ives-Ruyter, for the Applicant.

Laurie Dakin, for Jonathan Rohrich.

Adrian R. Cleaver, for Benjamin Gilbert.

DECISION ON AN APPLICATION BY THE CROWN UNDER SECTIONS 486.2 AND 715.1 OF THE
CRIMINAL CODE

P.F. LALONDE J.

OVERVIEW

1 The Respondents are each charged with one count of sexual assault contrary to section 271 of the Criminal
Code of Canada. The Respondents are scheduled to have a joint trial commencing on September 21, 2009.

2 A judicial pre-trial was held in this matter on December 3, 2008, and the applicant indicated her intention to have
both complainants testify by means of a video link. The Crown also indicated her intention to have both
complainants adopt the contents of their video statements to the police instead of the complainants testifying in-
chief in the court room.

POSITIONS OF BENJAMIN GILBERT AND JONATHAN ROHRICH

3 The accused are opposing this application by the Crown under section 486.2 and section 715.1 in relation to the
complainant Caterina Manca. The accused are arguing that the complainant in this case does not require the extra
measures provided for in either section 486.2 or section 715.1 and that the granting of such orders would interfere
with the proper administration of justice in this case.

MR. ROHRICH'S POSITION

4 Counsel for Mr. Rohrich urges me to consider the matter moot. A motion was made before my brother judge, Mr.
Justice Timothy Ray on July 10, 2009 for the appointment of counsel for Mr. Rohrich for the purposes of cross-
examination of the complainants. Only in the alternative would the court be requested to rule on whether or not the
complainant would testify with the help of a closed circuit television. Crown counsel at the hearing of that particular
application advised that Mr. Cleaver, counsel for Mr. Gilbert, would not be attending, as the motion concerned only
Mr. Rohrich and the appointment of a counsel for him. Once Mr. Justice Ray appointed counsel, then the matter of
the motion was spent. I do not believe that I am reversing Mr. Justice Ray's decision, as the matter of the victim
testifying on closed circuit television was not properly before him. Crown counsel has brought a further motion on
this matter dated August, 2009 thus signifying that the matter was yet to be decided.

Jordan Weisz
 Page 3 of 5
R. v. Rohrich, [2009] O.J. No. 4050

THE CROWN'S POSITION

5 Crown counsel argued that Bill C-2 passed by the Parliament of Canada changed the way that victims will testify
in sexual assault cases. According to section 486.2 (1), if the complainant is under the age of 18 years, it is
mandatory to allow communication with the aid of a closed circuit television. Section 486.2 (2) allows a judge to
consider other matters in allowing or disallowing evidence given by a complainant via closed circuit television. In
this case, Ms. Manca was 17 years of age at the time that the incident involving her took place.

6 Crown counsel pointed out that the changes to the law have been made to encourage victims of sexual assault to
come forward and to make it less traumatic for them to give evidence.

ANALYSIS

7 Section 486.2 (1) of the Criminal Code provides that the court shall order that a witness under the age of 18 or a
witness who is able to communicate but may have difficulty in doing so by reason of a mental or physical disability
testify outside the courtroom or behind a screen unless the judge is of the opinion that the order would interfere with
proper administration of justice. The Criminal Code does not indicate whether the witness should be under the age
of 18 years at the time of the incident complained of or at the time of trial.

8 If the witness is 18 years of age or older and does not have difficulty in communicating by reason of a mental or
physical disability, the court must then look to section 486.2 (2). In such situations, the court has the discretion to
order that the witness testify outside the courtroom or behind a screen. The judge must be of the opinion that the
order is necessary to obtain a full and candid account from the witness of the acts complained of.

9 To make a determination under section 486.2 (2), the court should consider such factors as the age of the
witness and the presence or absence of mental or physical disability, the nature of the offence, the nature of any
relationship between the witness and the accused and any other relevant circumstances. This is specified in section
486.1 (3) of the Criminal Code.

DECISION

10 In this the complainant will not be able to testify with the aid of closed circuit television. She is 20 years old, has
already testified and been cross-examined at the preliminary hearing without testimonial aids and she does not
suffer from a mental or physical disability. I am certain I can get a full and candid account with her in courtroom
testimony.

OUT OF COURT STATEMENTS

11 The next part of the application by Crown counsel pertains to Sections 715.1 and 715.2 of the Criminal Code
which provide a statutory exemption to the common law rule against hearsay evidence by permitting the
admissibility of out-of-court statements. Once admitted, these statements may be accepted for the truth of their
content and form part of the prosecutions case in proving elements of the offence.

12 According to the decision in R. v F.(C.C.), [1997] 3 S.C.R 1183, section 715.1 of the Criminal Code applies to
complainants and witnesses who were under the age of 18 at the time of the alleged offence. The section was
proclaimed in 1988 with the stated intent:

1. to facilitate the pursuit of truth by preserving an account of the witnesses' evidence;

2. to make participation in the criminal justice system less stressful and traumatic for the witnesses
under the age of 18.

Jordan Weisz
 Page 4 of 5
R. v. Rohrich, [2009] O.J. No. 4050

13 The section was amended in January 2006 to allow video recordings in any proceedings, not just sexually
related charges.

14 Before a recording may be admitted, a voir dire is necessary to review the contents of the tape and to determine
if the statutory pre-conditions of the section have been met. The pre-conditions are:

1. The complainant or witness must have been under the age of 18 at the time of the alleged offence;
2. The recording must have been made within a reasonable time after the offence;
3. The complainant or witness must describe the acts complained of;
4. While testifying, the complainant or witness must adopt the contents of the recording.

15 The Crown carries the onus on the balance of probabilities of proving that the statements were taken within a
reasonable time after the alleged offence. Reasonable time is measured between the alleged offence and the
making of the recording. Reasonable time will also depend on the facts and circumstances in each case. The
reason for the delay and the impact this has on the witness' ability to recall is an important contextual factor to be
considered. As decided in R. v. Scott (1993), 67 O.A.C. 213, the court may edit the recording to ensure that it
contains only the acts complained of. The recorded statement should conform to the ordinary rules of evidence and
be rid of extraneous matters. Statements that conflict with those rules should be edited from the tape. This would
also include hearsay statements that do not form part of the prosecution case.

16 In the Supreme Court of Canada decision in R. v L (D.O.), [1993] 4 S.C.R 419 at paragraphs 52 and 56, the
court confirmed that, if admitted, the recording is admissible for two purposes, namely as the truth of the contents of
the statement and to assist the court in assessing the complainants demeanour and credibility. The statement
cannot be used to corroborate the witness' in-court testimony or to bolster the witness' credibility or reliability; that
would be an improper use of the statement. Once the statement is admitted, it becomes part of the evidence in-
chief and is subject to cross-examination. The circumstances of the making of the tape are considered when
determining what weight will be attributed to it.

17 Since the Criminal Code was amended in 2006, the court may only exclude an otherwise admissible recording if
the admission of the recording would interfere with the proper administration of justice, and to determine
admissibility that the court may look at the following factors:

1. The form of questions used in the statement;

2. The interest of the persons participating in the making of the statement;
3. The quality of the recording;
4. The presence of inadmissible evidence in the statement;
5. The ability to edit the tape;
6. Whether out-of-court statements have also been introduced as evidence;
7. Whether visual information in the video might tend to prejudice the accused;
8. Whether the Crown has been allow to use any other method to facilitate the giving of testimony by the
complainant;
9. The presence of a jury;
10. The amount of time that has passed since the recording was made and the present ability of the
witness to effectively relate the events described in the video.

Jordan Weisz
 Page 5 of 5
R. v. Rohrich, [2009] O.J. No. 4050

DECISION

18 In this case, the first video statement taken from the complainant within five months of the incidents was lost by
the Military Police. That interview had taken place on December 11, 2007 for an alleged offence that would have
taken place November 27, 2006. The interviewer was a Military Police officer by the name of Phillip Hird. As a
result, a second video statement was taken from the complainants on March 3, 2008, some 14 months after the
incident. In that video statement, the complainant was not sworn and did not affirm to tell the truth. The complainant
was not cautioned to avoid discussing her evidence with any third parties.

19 The incident, the sexual assault, is alleged to have occurred on November 27, 2006. The second video
statement was provided to the police on March 3, 2008, some 14 months after the alleged incidents. I agree with
defence counsel that a contextual assessment is required in these circumstances. The jurisprudence outlined
above accepts longer delays in disclosure of the alleged incidents where the complaint is a child of tender years
and where the allegations are made against a family member or a person in a position of authority or trust towards
a child, such as a teacher or a priest. In such a situation, the child may fear retribution from the alleged abuser or
repercussions from her family in making the disclosure.

20 I accept that Ms. Manca has done her best during the preliminary hearing held on September 8, 2008 at
Pembroke, Ontario to be truthful in her evidence. I have reviewed the transcript and find at page 6 that, in fact,
Caterina Manca gave her evidence by affirmation as is written on that page in the transcript.

21 I am satisfied that on March 3, 2008, when the second video interview was made by Sergeant Provost, Military
personnel, Ms. Manca was telling the truth as she states at page 5 of the transcript that she is giving one hundred
percent of the truth. At page 6, the seriousness of the interview was emphasized together with the importance of
telling the truth. At page 7 of the transcript, the complainant stated that her statements were completely accurate
and at page 8, Ms. Manca showed a determination to say exactly what had happened and stated that she was not
to be made a fool of. It is repeated at page 10 of the transcript where she emphasizes that she is telling the truth
and that she is assured that she in not in trouble if she tells the truth and at page 157 of the transcript she maintains
that her evidence is being given in a straight forward manner. However too much time has elapsed between the
time of the alleged incident and the taking of the second video statement to make it a reliable out of court statement
as envisaged by the Code. The complainant talked to a number of persons prior to giving the statement and it might
have influenced its content.

22 The statement was taken without any caution being given by the interviewer, without the statement being sworn
or affirmed and in the presence of the complainant's mother who should not have been proferred as a support
person. The Crown's application is dismissed in its entirety.

P.F. LALONDE J.

End of Document

Jordan Weisz