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[15] These cases give examples of what sorts of factors will be considered in determining if statements meet the threshold for admissibility under section 540(7). Without intending to create an exhaustive list of these factors, some of them are:
(a) an assessment of the child’s understanding of the importance of telling the truth;
(b) establishing that what is presented is the complete interview or if there are portions of the interview or of the preparation of the child for the interview that are not on the tape and are not otherwise accounted for;
(c) assessing whether or not the interview has been tainted or contaminated in some fashion;
(d) the use of non-leading questions;
(e) the reliability of any transcript of the interview;
(f) the atmosphere in which the interview was conducted; and
(g) the presence or absence of any confirmatory or corroborating evidence.
[16] No one factor is determinative of the question and provided that no irrelevant or improper considerations are applied, the matter is largely one of judicial discretion.
(b) What does “Credible or Trustworthy” Mean in Section 540(7)?
[17] The threshold for the admission of evidence under section 540(7) is that the judge must consider the evidence, otherwise inadmissible, to be “credible or trustworthy.” In R. v. Francis (2005) 2005 CanLII 24259 (ON SC), 202 C.C.C. (3d) 147; [2005] O.J. No. 2864 (Ont. C.J.), L. D. Ratushny J. held that this phrase must be interpreted in light of the context of the screening function of the preliminary hearing. Justice Ratushny stated:
26…I think it unnecessary to try to limit the meaning of what would amount to information that is "credible or trustworthy". That consideration has to be made on a case-by-case basis as the subsection itself requires it be made "in the particular circumstances of the case".
27 I think it clear, however, that what is not being referred to in subsection (7) is the ultimate consideration of the credibility of the intended evidence or the ultimate weighing of it, because of course that is to be left for the trier of fact at trial after all of the trial evidence has been heard. I agree with Wright J. in Muzhikov, supra, at para. 42, that the information sought to be introduced under subsection (7) has to have at least a prima facie air of reliability to allow it be admitted on the preliminary inquiry toward a consideration as to whether there is some evidence for a jury to properly consider at trial.
28 I also think that subsection (7) deals with a lower evidentiary threshold than would be the case at trial. In Alton, supra, while I don't disagree at all with the justice's decision that the proposed evidence was sufficiently credible or trustworthy to be admitted under subsection (7), in coming to his conclusion, he made findings akin to the standard of "circumstantial guarantees of trustworthiness" applied to the introduction of hearsay at trial. This is an evidentiary threshold applied to the admission of hearsay evidence at trial and I don't think the evidentiary shortcut contemplated by subsection (7) requires the same degree of trustworthiness. The subsection itself implies a lesser threshold of admissibility by allowing the receipt as evidence of "any information that would not otherwise be admissible". The consideration of whether the tendered information is "credible or trustworthy" remains only a threshold question of admissibility in the context of the screening function of a preliminary inquiry, meant to protect the accused from having to deal with information that would not amount to being considered as any evidence at all upon which a reasonable trier of fact properly instructed could convict.
[18] The following principles emerge from R. v. Francis:
(a) Credible or trustworthy evidence under subsection (7) does not have the same meaning as it would at trial. The threshold is a lower evidentiary one;
(b) Specifically, this determination does not require the evidence to be weighed;
(c) The evidence sought to be introduced must at least have a prima facie air of reliability;
(d) The consideration of what is credible or trustworthy must be made on a case by case basis.
[19] In R. v. Sonier 2005 ONCJ 75 (CanLII), [2005] O.J. No. 1234 (Ont. C.J.), Omatsu J. said that the phrase “credible and trustworthy” has a different meaning under this section than it does under section 518(1)(e) (dealing with what evidence is admissible at a bail hearing). I take this to mean that something more than a mere recital of the allegation is called for. In Omatsu the Crown proposed calling only the investigating officer at the prelim but not the complainant. Omatsu J. felt that that this was relaxing the process too much, and required that the Crown call the complainants as witnesses.
[20] In R. v. Francis, Justice Ratushny agreed with the conclusion that the changes to the legislation shouldn’t go so far as to make the preliminary hearing too informal a process, stating that Parliament did not intend “to convert preliminary inquiries into a paper hearing.”
[21] A contrary conclusion about whether the phrase “credible and trustworthy” has a different meaning from its usage in section 518 is found in R. v. Morgan 2006 YKTC 79 (CanLII), [2006] Y.J. No. 80 (Yukon Terr. Ct.), where the accused was charged with sexual assault and sexual touching of a 6 year old neighbour girl. The Crown applied to have the girl’s videotaped statement admitted into evidence. Faulkner C.J. Terr. Ct. noted that the test for admission is not the same as the test for necessity and reliability of hearsay evidence at a trial, but held that the test was the same as under section 518 of the Code. In this case, a key factor in finding the statement admissible under subsection (7) was the manner in which the child gave her evidence. Chief Justice Faulkner noted that the child was able to tell her story “unimpeded”, the interviewers questioned her in neutral tones and although there were some leading questions, the child did not always follow the lead.
[22] In R. v. Alton 2005 ONCJ 208 (CanLII), [2005] O.J. No 2603 (Ont. C.J.), E.K. Bignell J. considered the definition of this term and concluded that it was not the same as the test for necessity and reliability under the principled exception to the hearsay rule:
15 The principled approach to hearsay evidence permits its reception if the requirements of reliability and necessity are established. If we consider the dictionary definition of trustworthy as being honest, truthful and reliable, it is logical to require a degree of reliability with regard to the admission of evidence under section 540(7).
16 However, 540(7) makes no mention of a necessity requirement. If Parliament had intended that necessity be required, it is my view that they would have said so. They did not. Over the years, a number of amendments have been made to the Criminal Code and Parliament has been very specific about the requirements to be met. For example, pursuant to section 486(2.1), certain witnesses in offences as set out in the section may give evidence outside of a courtroom or behind a screen, if certain pre-conditions are met. Similarly, in section 715.1, when specific elements are present, videotapes are admissible in evidence. Section 540(7) simply says that a justice may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy.
[23] In R. v. Uttak 2006 NUCJ 10 (CanLII), [2006] Nu. J. 11 (Nunavut C.J.), Kilpatrick J. expanded further on the definition of credible and trustworthy and on the question of whether this invited consideration of contradictory evidence on the preliminary hearing. Concluding that it did not, Justice Kilpatrick wrote:
18 I conclude that the determination of whether evidence is 'credible and trustworthy' is limited to an application of the objective standard to the information sought to be admitted, and only to that information. Consideration of conflicting or corroborating evidence that is extrinsic or collateral to the information sought to be admitted should not form part of the analysis.
19 If the circumstances intrinsic to the making and recording of the information, and qualities inherent to the information source, meet the objective standard, such information becomes 'credible and trustworthy' for the purpose of the preliminary inquiry. Such information becomes 'some evidence' upon which a properly instructed jury, acting judicially, might reasonably convict. Any conflict or inconsistency arising from different sources of information must await resolution in the trial environment.
20 The application of this objective standard was intended to filter out evidence that was inherently incredible or untrustworthy. It was not intended to supplement the decisions that had to be made by the trier of fact at a trial. This limited screening function can be achieved at the preliminary inquiry without doing violence to the traditional function reserved for the trial court.
[24] An example of a case where a videotaped statement of a child witness was found not to be credible or trustworthy is R. v. Inglis (2006) 2006 ONCJ 154 (CanLII), 208 C.C.C. (3d) 85; [2006] ONCJ 154 (Ont. C.J.), a case in which a teacher was accused of sexual assault and indecent assault on students. The Crown made an application under section 540(7). The defence counsel listed ten objections to the making of orders under subsections (7) and (9), which are set out by Vaillancourt J. at paragraph 28 of the judgement:
(1) The circumstances that brought the complainant forward to the police; (2) The lack of police notes with respect to all police contact with the complainant witness; (3) The lack of a KGB caution or oath when the video was done; (4) The video does not contain any warnings about the importance of telling the truth and consequences for not doing so; (5) The quality of the video; (6) The discrepancies between the video itself and the transcript; (7) The lack of opportunity for the complainant to review the video when preparing a subsequent affidavit; (8) The time that elapsed between the giving of the video statement and the examination of the transcript of said video; (9) The passage of time between the allegations and the complaint to the police; and (10) The leading or suggestive commencement of the videotaped interview.
[25] Judge Vaillancourt added to that list that “no efforts were made to explore how alcohol consumption might have impacted the complainant’s ability to recall events” and that the Crown had asked to file an affidavit to explain some of the things said in the statement. The judge concluded that these problems put the credibility and trustworthiness of the statement in issue and ordered the Crown to produce the witness.
(c) Conclusions
[26] On a review of this jurisprudence, I conclude the law to be as follows:
(a) The purpose of the preliminary hearing has been significantly eroded with the imposition of the disclosure requirements set out in R. v. Stinchcombe (1995) 1995 CanLII 130 (SCC), 96 C.C.C. (3d) 318; [1995] 1 S.C.R. 754.
(b) A court can not make findings of credibility at a preliminary hearing but must instead perform a vetting function to ensure that there is some evidence to put the accused on trial.
(c) In amending the Criminal Code, it was the intention of Parliament to simplify trial procedure and enhance its efficiency through the use of modern technology and to provide better protection for complainants and witnesses in criminal trials.
(d) In deciding whether or not the Crown ought to be allowed to utilize section 540(7) to admit evidence which would otherwise be inadmissible, a court must strike a balance between protecting witnesses and permitting the accused to understand the case he or she must meet.
(e) When section 540(7) speaks of admitting evidence which is “credible and trustworthy”, credibility does not have the same meaning which it would have at trial. Nor does it mean the same as evidence which is “necessary and reliable” as in the case of the principled exception to the hearsay rule. It must at least have a prima facie air of reliability to allow it to be admitted under this subsection.
(f) The case law differs as to whether or not “credible and trustworthy” has the same meaning as it does in section 518(1)(e) of the code (as suggested in R. v. J.P.L.) or whether it means something of greater quality (as suggested in R. v. Sonier). In my view this is an academic debate of little practical consequence. The point is simply that the evidence must be something that has an air of reality (and therefore more than a bald assertion of fact), but need not be proof beyond a reasonable doubt. It is evidence which might be true, and which is not inherently incredible or untrustworthy. The determination of what is “credible and trustworthy” evidence under subsection 540(7) must be decided on a case by case basis.
(g) There are many factors which a judge should consider in deciding the issue of whether evidence proposed for admission under subsection 540(7) is “credible and trustworthy.” Among those most frequently considered are whether the evidence is given in response to open-ended questions, whether anyone other than the interviewer spoke to the complainant prior to the interview, potentially contaminating the statement; whether the interview was conducted in a “child friendly atmosphere”, and the quality of the recorded interview.
(h) The fact that a statement was not audio or video recorded is not fatal to this application, but a higher quality of recording with a reliable transcript gives the court more confidence as to the statement’s accuracy;
(i) Cross-examination of the child is not a precondition to its admissibility under subsection (7) although there may be cases where this is required in order to cross the threshold into finding that the evidence is “credible and trustworthy.”
(j) From the foregoing, it follows that an application to admit a recorded statement into evidence pursuant to section 540(7) must usually, if not always, be decided at the conclusion of a voir dire, in which all of the factors which the court must consider may be examined. An exception may be where competent counsel for an accused consents to admissibility of the statement.
[27] What must be kept in mind is that subsection 540(7) does nothing to change the standard for committal. In determining whether evidence proposed under this section is credible and trustworthy, the answer to that question ought not alter the test for committal.
(a) Summary of the Law
[29] Jurisprudence on this issue have gone to opposite ends of the spectrum on the issue of whether admitting a videotaped statement of a child complainant gives a right to cross-examine the child. For example, in R. v. J.P.L., Lamoureax P.C.J. held that at a focus hearing the assigned judge could make an order requiring the Crown to call the police officer who took the statement from the child without requiring the Crown to produce the child for cross-examination. In R. v. S.P.I. Johnson J. spoke as if it was a foregone conclusion that the child could be cross-examined after the statement was admitted, with the result being a “more focused” cross-examination. There the court rejected the suggestion “as aggressively argued by the Crown” that the statement could demonstrate a prima facie case in and of itself, holding that this was not what Parliament intended.
[30] In R. v. Francis, L. D. Ratushny J. held firstly that cross-examination of the child was not a pre-condition to determining whether or not the statement would be admitted into evidence under subsection (7). She acknowledged that there may be cases where this is required. On the facts of that case, she held that it was proper for the preliminary judge to allow cross-examination of the child after the ruling on admissibility of the statement had been made.
[31] In R. v. Inglis, the court strongly advocates against taking away the right of an accused to cross-examine the complainant. Vaillancourt J. states, at paragraph 52, that the principle of full answer and defence is not extinguished by the focus of the new legislation, adding “expediency and efficiency should never trump the concept of trial fairness.”
[32] In R. v. Morgan however, Faulkner C.J. Terr. Ct. does not accept that it is a foregone conclusion that an accused will be denied a fair trial if he or she is not given the opportunity to cross-examine the complainant. Chief Judge Faulkner wrote:
23 I am well aware of the accused's right to make full answer and defence at the preliminary inquiry as well as at trial, but I have not been provided with any insight as to how this right will be impaired in any substantial sense given that the accused has disclosure of the videotape, the transcript, the contents of the child's complaint to her mother, the reports of the attending medical staff and the results of all other police investigations in the matter. Nothing suggests that these provide anything other than a complete recitation of the allegations against Mr. Morgan or of the evidence available in support of them.
[33] Chief Judge Faulkner also addressed the argument used in other cases upholding the right of cross-examination, i.e. that if Parliament had intended to curtail that right, it would have said so in clearer language. To this argument, the following response was given:
28 The argument seems to be made in many of these cases that, if Parliament had intended to work such a sea change on the preliminary inquiry, it would have used more robust language, (or, as was suggested in one case, the proposed legislation would have provoked more debate in the Houses of Parliament). However, the fact is that ss. 540(7), 540(8) and 540(9) are entirely clear and unambiguous. They permit the court to receive exactly the kind of evidence proposed in this case and they authorize the presiding justice to decide whether or not to direct any person to appear for cross examination with respect to that evidence.
[34] Rather than try and reconcile these divergent points of view, I think they illustrate the discretion which this section allows to a judge presiding at a preliminary hearing. In seeking to balance the competing interests of protecting vulnerable witnesses, stream-lining the preliminary hearing, while maintaining procedural fairness and safeguarding the rights of accused persons, it is unrealistic to expect the law to provide a “one size fits all” solution. The judicial use of discretion to meet the facts of each case is called for.
[35] The most authoritative decision on this issue is found in the Quebec Court of Appeal decision of R. v. P.M. [2007] Q.J. No. 2915. In that case Rochette J.A. held that despite some confusing language in the provision, section 540(9) is a discretionary section, not a mandatory one:
35 Apart from that, subsection 540(9) Cr.C. cannot be regarded as a mandatory provision, because an order is issued by the justice only to a "person whom the justice considersappropriate to appear". This clearly points to a discretion, the exercise of which happens to be contested in this case. A door must be either open or closed. (Emphasis added.)
[36] Justice Rochette went on to say that this discretion was to be exercised on the basis of whether or not the judge hearing the preliminary felt that the proposed cross-examination of the child’s testimony was relevant, adding that once relevance was established, then the judge was obliged to allow cross-examination:
[50] We may observe first that, upon receiving an application, the justice is not obliged to allow the cross-examination of a witness who has made a statement that satisfies the requirements of subsection (7). The justice must also deem the testimony to be relevant. On the other hand, once he or she is convinced of that, the justice has no choice but to order-"shall ... require"- the person concerned to appear for cross-examination…
[74] In this context, the Crown's affirmation that this legislative reform makes cross-examination on a statement contemplated in subsection 540(7) an exceptional procedure does not hold up. In the same way, and with respect, the justice, in the case at bar, went too far when he said that cross-examination should be denied only exceptionally.
[75] Bill C-15A maintains the right to a preliminary inquiry when an indictable offence is alleged. Similarly, the cross-examination of a witness whose statement has been filed will take place, on request, from the moment it proves relevant, this being a requirement that confers on the justice considerable latitude.
[76] In requiring of the accused that he or she show "a justiciable cause" for cross-examining a plaintiff and raise, for instance, contradictions in the plaintiff's statement, rather than trying only to question his or her credibility, the Crown is adding requirements to subsection 540(9) that are not formulated in it. (Emphasis added.)
[37] After a thorough consideration of the arguments of the Crown and defence, Justice Rochette concluded thusly:
[86] When all is said and done, I do not feel it is necessary to add to the text of subsection 540(9) Cr.C. in order to render Parliament's intent. In allowing or disallowing the cross-examination requested by the accused, the justice will consider, on the one hand, the accused's legitimate interest in preparing his or her defence and bringing out, at the preliminary inquiry stage, the insufficiency or the weaknesses of the Crown's evidence. Very obviously, the justice will make sure, on the other hand, that the cross-examination requested by the accused is relevant with regard to the particular situation of the person whose appearance is requested and to all of the circumstances of the case. [See Note 48 below] If the relevance is not demonstrated, the request will be denied.
Note 48: In R. v. Roth, [2006] O.J. No. 1900 (QL) (Ont. Ct. J.), the justice did not allow the defence to cross-examine an elderly plaintiff whose statement had been recorded on videocassette, on the ground that his health did not permit him to undergo the stress inherent in cross-examination.
87 Once cross-examination has been allowed, it will be up to the justice, whom the law now obliges to act accordingly, to protect vulnerable witnesses, more especially young people who are presumed victims of sex crimes, against abusive cross-examination
[38] R. v. P.M. takes the position that, in order to make an order under subsection (9), the preliminary hearing judge must be satisfied that cross-examination will be relevant (i.e. tending to "increase or diminish the probability of the existence of a fact in issue") and also must be appropriate. Consideration of what is appropriate will include protecting vulnerable witnesses from abusive cross-examination. Once relevance has been established however, the order for cross-examination should be made.
[39] It must be recalled however that at a preliminary hearing, credibility is not in issue and therefore cross-examination of a complainant to attack that person’s credibility is neither a relevant nor appropriate use of cross-examination. This was made clear in R v. P.M and also in R. v. Uttak, where Kilpatrick J. suggests that this section will mean less cross-examination of complainants in sexual offence trials:
[24] Two conclusions flow from this legislation. Short of a successful Charter attack in a court of competent jurisdiction, cross- examination under s. 540(9) has lost its historical status as a presumptive right. In the context of the preliminary inquiry's limited screening function, cross-examination is no longer a prerequisite to a determination of reliability.
[25] The lesser role assigned to cross-examination by s. 540(9) underscores the modest screening function implicit in the determination of whether evidence is 'credible and trustworthy' under s. 540(7). Parliament did not intend such a determination to necessarily go ahead, as it does at trial, with full cross-examination in every case. This is because the justice at the preliminary inquiry is not expected to resolve issues of ultimate credibility and reliability. These issues must await the trial where the right of cross-examination and a full application of the rules of evidence will be available to assist in making these determinations.
[26] Cross-examination will not be required in every case to determine whether the proposed information meets the objective standard. It is open for the justice to find that, in the circumstances of a particular case, the determination required by s. 540(7) can be met in the absence of viva voce examination. Such might be the case, for example, where there is a forensic or medical report available from an independent professional, having expertise in the area covered by the report. The nature of the source itself, and the type of information being provided, might be sufficient to meet the objective standard in the absence of any cross-examination. (Emphasis added).
[40] Justice Kilpatrick went on to give examples of what sorts of limited circumstances would permit an order under subsection (9):
[27] On the other hand, in the circumstances of a particular case, a party may be able to convince the justice that a determination of 'trustworthiness' would be assisted by an examination under oath. Some examples where cross-examination might be required: where a motive to fabricate or misrepresent the truth is attributed to an informant who is a party litigant; where the information is supplied by a jail house informant, a co-accused, or a person of unsavoury character; where proof of identity turns upon a fleeting observation lacking objectively reliable criteria; or where an allegation rests upon a 'recovered memory'. In the long experience of the common law, evidence given under these circumstances is notoriously unreliable. Reliance upon this type of evidence is fraught with risk. Cross-examination becomes necessary to assess whether such evidence is sufficiently credible and trustworthy on an objective standard to merit reception.
(b) Conclusions
[41] From a consideration of these authorities, the following principles emerge concerning the making of an order pursuant to section 540(9):
(a) Cross-examination of the witness is not a precondition to admissibility of a recorded statement under subsection (7) although there may be cases where this is required.
(b) There are divergent views as to whether or not an application to cross-examine the child under subsection (9) should routinely be allowed . The point of view supporting this takes the position that trial fairness trumps expediency while the contrary view takes the position that it must first be demonstrated that the failure to produce the child for cross-examination would result in some sort of unfairness. The section accommodates both points of view and allows for a wide discretion on the part of the trial judge, depending on the facts of each case.
(c) Before allowing cross-examination under subsection (9), the preliminary hearing judge must first decide if the areas to be explored in cross-examination are relevant and secondly if they are “appropriate”.
(d) In this context, relevant cross-examination does not include the issue of credibility because this is not in issue at the preliminary hearing.
(e) Some examples of relevant areas of cross-examination may include motive to fabricate, coaching, identity of the perpetrator, where the witness is unsavoury, or where the complaint is based on a recovered memory.
(f) A consideration of what is appropriate will include a consideration of the court’s role in protecting vulnerable witnesses from abusive cross-examination.
(g) If the preliminary hearing judge concludes that the proposed cross-examination is both relevant and appropriate, an order under subsection (9) should be granted.
