R. v. REVES, 2025 ABCA 5, JANUARY 9, 2025.
FACTS: The accused was convicted of the offence of sexual interference. At his trial, the trial judge ruled that the Crown could, pursuant to section 715.1 of the Criminal Code, present a videotaped statement provided by the complainant to the police (referred to by the Court of Appeal as the “Zebra statement”).
The evidence presented on the voir dire, established that a written statement had been taken prior to the videotaped statement. The Crown did not seek to have this admitted.
The accused appealed from conviction, arguing in part that “the trial judge erred in admitting the Zebra statement, specifically in not considering the first statement and the effect it may have had on the threshold reliability of the Zebra statement” (at paragraph 13).
HELD: The appeal was allowed, and a new trial ordered. The Alberta Court of Appeal concluded that the trial judge erred “in admitting the Zebra statement under s 715.1 without considering what impact, if any, the first statement may have had on its reliability” (at paragraphs 29 and 30):
In this case…the first statement itself was not part of the evidence the Crown tendered during the voir dire. Crown counsel advised the trial judge of the first statement’s existence and stated she was not seeking to admit it under s 715.1 because it did not meet the statutory requirements. However, the first statement would have been an important piece of evidence in assessing the threshold reliability of the Zebra statement. It played a prominent role in how the detective who took the Zebra statement conducted the interview, and it is clear from the Zebra statement that the detective used the information from the first statement to form the basis of many of the questions he put to the complainant. A number of the questions were leading or included suggestions to the complainant. Some went to the heart of the allegations, most notably: when and how the appellant allegedly wrapped his arms around the complainant; that the complainant had a dream she was being raped; that the appellant was “fingering” and licking the complainant; and that he tried to pull her clothes off.
While we recognize it was for Crown counsel to decide what evidence to tender in support of the application, and that Crown counsel did not tender the first statement, the trial judge nevertheless erred in admitting the Zebra statement under s 715.1 without considering what impact, if any, the first statement may have had on its reliability. The omission of the first statement resulted in an incomplete assessment of the Zebra statement’s threshold reliability. Without it, the trial judge simply could not determine the extent to which it may have influenced the complainant’s evidence in the Zebra statement, including whether it led to embellishment or fabrication. These and other risks had to be considered and assessed by the trial judge as part of the inquiry into threshold reliability and overall admissibility s 715.1.