Supreme Court

:yrrh-<-.^ -'>*• U'l^'fc^i^T f^^br^ T/^((>i^ ? ? ^ 77 c)(§̂ 1 RE; Queen vs Arey 2 Trial at rnuvik, N,W.T. June 1-3 inclusive, 1977, befo re 3 Mr. Justice C, F. lallis. 4 5 THE COURT: Well, in this particular voir dire I have heard the 6 evidence and I have directed myself with respect to the law 7 as set forth in a number of authorities, sorne of which I 8 have already referred to, 9 I have in mind particularly the article or annotation 10 entitled "Complaints in Sexual Cases", 33 Criminal Reports, 11 page 65, and particularly the following cases: 12 Regina vs Lillyman, 1896, 2 Queen's Bench, 167 -13 at page 171 particularly, 14 15 Thomas vs the Queen, 1962, Volume 2, Supreme Court 16 Reports, 344 - particularly at 354 and 355. 17 and Queen vs Lebrun, 1951, 100 Canadian Criminal 18 Cases at page 16, and particularly at page 26. 19 20 As I stated a Trial Court should not admit evidence 21 of a complaint until satisfied that it was made at the first 22 opportunity which reasonably presented itself and was not 23 one subsequent to and separate and distinct from the first 24 complaint; and secondly that it was not elicited by 25 questions of a leading, inducing or intimidating character m 26 27 ^

M H ^2* Z ü 5^/ 1 Cofliplarnts piade after the ftrst reasonable opport-2 u n t t r are therefore tnadmtsstble because they would be 3 no more than narrations in the absence of the accused, 4 H o w e v e r , in this case, as in other cases, I have 5 to look at all the circumstances that have been elicited 6 before me on the voire d i r e , and while there are dis-7 crepancies and variations in the evidence this essentially 8 goes to a matter of weight by the jury if I decided that 9 the alleged complaint was made at the first reasonable 10 opportunity which presented itself. 11 In determining the legal admissibility I have to 12 look at all the circumstances that have been presented to 13 m e , and I have to also bear in mind the background and 14 ability of the plaintiff as I see it from observing her 15 manner and demeanour in the witness box, Similarly I 16 think that I am entitled to take into account the fact 17 t h a t , where a complainant has made a recent complaint, 18 that complaint may be admissible in evidence even though 19 the person to whom she allegedly made the complaint is not 20 required as a witness - and I am thinking particularly 21 of the Kribs c a s e , which was decided in the Supreme Court 22 of Canada. 23 Looking at all of the circumstances in this case 24 25 and bearing in mind the limited period of time over which 26 the activities of the complainant apparently took place 27

_j.^-sijftjr_ -3-1 le.acling up tq her alleged recent compUt-nt to 5ar&9ra 2 ICas'Ook, r am s^attsfted that there ts evtdence to go before 3 a jury. 4 In other words, l am prepared to admit the evidence 5 of this complaint because I am satisfied in the circum-6 stances of this case that tt was made at the first opport-7 unity which reaonably presented itself, 8 I therefore rule the evidence admissible and I will, 9 of course, be directing the jury to the limited use that 10 can be made of the complaint, and of course, in the course 11 of my Charge to the jury I will be pointing out to them 12 that the weight to be given to the evidence is a matter 13 for them to decide and this, of course, will fall within 14 that general direction, I also have no doubt that 15 Counsel will be directing comments on that as well, 16 Now, is my ruling on that clear, gentlemen? 17 MR, DALTON: May I ask one question? 18 THE COURT: Yes, 19 MR, DALTON: My Lord, there was in addition to the recent complain 20 other evidence of what I might term as hearsay nature 21 adduced as well. That isn't included in the complaint, 22 I trust? 23 THE COURT: What evidence are you referring to? 24 MR. DALTON: "Come along wtth me" I believe was the evidence -25 something of that nature, It was in the evidence of 26 Barbara Kasook, 27 tt

•55-3^^^ _^^ ms^ •*>iiir*Xil''"'i-<T< X-^^fT». 0 G V * X : G G î R. FONTAINE: Thaf^s^ not hearsay. That's res gestae which says who was tnvited. 3 THE COURT: It wasn't Barbara Kasook that said that. 4 MR. DALTON: That's right, 5 THE COURT: It was the complainant who asked her to come, 6 MR, DALTON: No, but in Barbara Kasook's evidence she said Joanne 7 Kendi said to her "Come with me". e THE COURT: Yes. 9 MR, DALTON: In my view that's hearsay evidence. 10 THE COURT: No, I view that as part of the overall complaint, 11 It's leading up to the complaint, 12 MR. DALTON: Well, I want a ruling on it. 13 THE COURT: Well, my ruling Covers that - that it's admissible, 14 or otherwise the complaint would be isolated to just three 1;") or four words, I don't think it's proper to have it 16 taken out of context, 17 THE COURT: All right, we will adjourn until 1:30. 18 19 20 21 22

24 Excerpt from T r i a l by R. Kobbs. 25

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