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In the case of R v Reves, 2025 ABCA 5 the Alberta Court of Appeal ordered a new trial in setting aside a conviction for sexual interference after they determined that the trial judge erred in admitting a pre-recorded statement by a child complainant as it was her second statement after some passage of time and the first statement was not properly considered on the application as to the issue of reliability of the second impugned statement. The complainant had provided a statement after disclosing the alleged sexual assault on August 10, 2020. The case was then referred to another police service and a second statement was taken on January 15, 2021 at the Zebra Centre in Edmonton (the “Zebra statement”).
As is common, child complainants are often spared having to recount all the details of their allegations by admitting their prior video statement under s. 715.1 of the Code.
In this case, at trial Crown Counsel did not seek to have the first statement admitted under s. 715.1, advising the trial judge it did not meet the criteria for admission “in terms of the manner in which the interview was conducted”. The second statement “relied on [the first statement] heavily” which included many leading questions. The Court made the following observation about the unique aspects of this appeal:
Canadian jurisprudence on the effect of a previous statement in an application under s 715.1 is scarce; however, the appellant’s counsel directed the Court to two relevant cases, R v Wiebe, 2016 MBPC 55, and R v DMD, 2019 BCSC 1027. Although neither is binding on this Court, they are instructive and assist in understanding the problem with the approach the trial judge took in considering the effect of the first statement. We note that no jurisprudence on this issue was provided to the trial judge.
The second statement of the child (Zebra statement) was taken five months after the first and both involved leading questions. Further, the Court of Appeal determined:
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.
The Alberta Court of Appeal determined that the instructions to the jury were inadequate to sufficiently attenuate the risk of over-emphasis and further did not equip the jury with the law they needed to know how to properly assess the complainant’s evidence.
The Court of Appeal additionally found that the jury instructions on motive to fabricate vs. proven absence of motive to fabricate the allegations were inadequate. For example, the instructions failed to include a warning to the jury that the absence of evidence that the complainant had a motive to fabricate did not equate to evidence she was telling the truth. Further, there was no instruction that raising the possibility of fabrication does not shift the burden of proof to the accused and require him to either demonstrate the complainant had a motive to fabricate or to explain why she made the allegation.