Supreme Court

R. v. Wilson No. 3, 2015 NWTSC 31	S-1-CR-2014-000060






IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. - JAMES WILSON

_________________________________________________________ Transcript of the Ruling on Admissibility of Evidence by The Honourable Justice L. A. Charbonneau, at Inuvik in the Northwest Territories, on 28th May A.D., 2015.
_________________________________________________________



APPEARANCES:



Ms. A. Piché:	Counsel for the Crown

Mr. C. Davison:	Counsel for the Accused



----------------------------------------

Charge under s. 271, 145(1)(a) Criminal Code of Canada

Ban on publication of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code

1	THE COURT:	These are my reasons for

2	ruling that A.K.'s evidence was not admissible at

3	this trial.

4	A.K. was called at the voir dire as I have

5	said in the context of my other rulings in this

6	matter.	The Crown relied on her evidence and on

7	other evidence in support of its position that

8	A.K. should also be permitted to testify as part

9	of the Crown's case.	A.K. is 56 years old and is

10	the complainant's sister.	She explained that she

11	and the rest of her siblings lived together as a

12	family as they were growing up.	A.K. moved out

13	of that home when she was 19.	A.K. was asked

14	some questions about the complainant.	She

15	explained that the complainant has three adult

16	children and lives with their brother P. and one

17	of her daughters R.	A.K. explained that the

18	complainant went to school for a while when she

19	was young but did not finish school.	She

20	explained that the complainant cannot read or

21	write except that she is able to write her name.

22	She cannot count or use money so she is not able,

23	for example, to go to the store on her own; she

24	has never had a job, and she needs assistance

25	from her daughters or other family members to pay

26	her bills.	A.K. explained that it is very

27	difficult for people to understand what the

1	complainant says, and this was also the case when

2	she was growing up.	A.K. said she talks to her

3	sister on the phone from time to time and is able

4	to understand her.	She said that sometimes when

5	she speaks to her sister she has to say certain

6	things more than once in order for her sister to

7	understand.	On cross-examination A.K. confirmed

8	that the complainant can use the telephone, she

9	is able to feed herself and look after her

10	personal needs.	She was asked about

11	communicating with the complainant, and she

12	confirmed that when people use short simple words

13	her sister can understand them.	She also says

14	that if someone uses a word her sister cannot

15	understand, her sister will say so.

16	The Crown sought to adduce A.K.'s evidence

17	at trial with the purpose of assisting the jury

18	in assessing the complainant's evidence.	Crown

19	noted that the complainant would likely not be

20	able to articulate for the jury things like the

21	fact that she cannot read or write or count, how

22	long she stayed in school for, and things of that

23	nature.	The Crown argued that the jury should be

24	aware of these special characteristics of this

25	witness in order to be in the position to fairly

26	assess her credibility and the reliability of her

27	evidence.	Defence objected to the admissibility

1	of this evidence on the basis that it is not

2	relevant.	Defence argues that this evidence will

3	not be of any assistance to the jury in deciding

4	the case.

5	The outcome of this application, to me,

6	boils down to going back to first principles.

7	To be receivable evidence must be material,

8	relevant and admissible.	Materiality has to do

9	with whether the proposed evidence goes to

10	something that is in issue in the proceedings.

11	Here the Crown says the evidence is material

12	because it will assist the jury in assessing the

13	evidence of the complainant.	The credibility of

14	the complainant and the reliability of her

15	evidence will be an issue in this trial so the

16	criterion of materiality is met.

17	But relevance is a different matter.

18	Relevance has to do with the logical tendency of

19	evidence to prove a fact.	As the Ontario Court

20	of Appeal said in R. v. Candir (2009), 250 C.C.C.

21	(3rd) 139 (Ont. C.A.), appeal to Supreme Court of

22	Canada dismissed 2012 CanLII 22174 (SCC):

23	To determine whether an item of evidence is relevant, a judge must decide whether, as a
24	matter of human experience and logic, the existence of a particular fact, directly or
25	indirectly, make the existence of a fact more probable than it would be otherwise.
26

27	In light of this, in my view, A.K.'s evidence

1	would be of little assistance to the jury in

2	assessing the complainant's evidence.	Based on

3	the video-recorded interview, on the transcript

4	of the complainant's testimony at the preliminary

5	hearing, and the note written to counsel by the

6	Court Reporter who took her evidence down at the

7	preliminary hearing, I think it is fair to say

8	that her difficulties in communicating and speech

9	impediment will be obvious to the jury.	I do

10	agree that things like her level of literacy as

11	far as being able to read, write or count may not

12	be apparent, and I also agree that these are not

13	things that she will likely not be able to

14	explain and articulate for the jury, but I do not

15	think that these are things that are necessarily

16	relevant to her credibility as a witness or to

17	the reliability of her account of events.	A

18	person could be illiterate but have a very keen

19	memory and be highly credible and reliable in

20	their account of an event.

21	As for any other cognitive difficulties that

22	the complainant may have that may impact on

23	issues of credibility and reliability I do not

24	see how the evidence of A.K. at the voir dire

25	would be helpful in understanding what those

26	issues are, how they play into the complainant's

27	ability to recall events accurately, or generally

1	bear on the reliability of her evidence.	A.K.'s

2	evidence about those topics was unclear and

3	vague.	She did not remember how long her sister

4	was in school for.	She quite simply did not know

5	or certainly did not testify about anything that

6	would assist understanding what is at the root of

7	her sister's communication challenges.

8	The only aspect of A.K.'s evidence that

9	might meet the requirements or relevance is when

10	she explained that the complainant sometimes does

11	not understand complicated words.	I accept that

12	in certain circumstances this might be evidence a

13	jury would need to have in order to properly

14	assess a witness's evidence.	For example, the

15	witness's hesitation or inability to answer a

16	question could be mistaken for reluctance or lack

17	of cooperation, or having something to hide, but

18	in fact be caused by a lack of understanding of

19	the question or confusion.	If the evidence was

20	that a proposed witness tends to come across as

21	understanding everything that is being said and

22	to give answers as though they did, but in fact

23	has a very limited comprehension of certain

24	things, the jury may well need to be made aware

25	of this through another witness who has

26	experience communicating with this person.	But

27	here on cross-examination A.K. said that when the

1	complainant does not understand a word, she says

2	so, which suggests she might do the same in the

3	trial context.

4	More importantly, if what transpired at the

5	preliminary hearing and in the video is any

6	indication of how the complainant will testify at

7	trial, it is clear that there will be some

8	challenges in adducing it and that those

9	challenges will be apparent to the trier of fact.

10	Simple words will have to be used, questions may

11	have to be repeated, and some of the answers may

12	not relate directly to the questions; but as I

13	say, I think all of this will be very apparent to

14	the jury, and I do not see how the evidence of

15	A.K. would assist them one way or another in

16	their assessment of that evidence.	For those

17	reasons, I conclude that A.K.'s evidence is not

18	admissible at this trial.

19	_________________________________________________

20

21

22

23

24

25

26

27

8





1

2	CERTIFICATE OF TRANSCRIPT

3

4

5

6	I, the undersigned, hereby certify that the

7	foregoing pages are a complete and accurate transcript

8	of the proceedings taken down by me in shorthand and

9	transcribed from my shorthand notes to the best of my

10	skill and ability.

11	Dated at the City of Edmonton, Province of

12	Alberta, this 21st, July, 2015.

13

14	Certified Pursuant to Rule 723

15	of the Rules of Court

16

17

18	Darlene Sirman, CSR(A)

19	Court Reporter

20

21

22

23

24

25

26

27




A.C.E. Reporting Services Inc.
Phone: (780) 497-4223