Nunavut judge rejects taped evidence from deceased 14-year-old

A Nunavut judge has found that an audio-only interview with a 14-year-old sexual abuse complainant from Pond Inlet who died in March 2016 is too unreliable to be used in court. (FILE PHOTO)

Shoddy police work—that’s why a short audio recording of a 14-year-old Pond Inlet girl accusing a local man of sexually abusing her cannot be used in court, Nunavut Justice Paul Bychok said in a decision released Dec. 7.

The young complainant died just a few months after giving the statement, so the 21-minute recording is the only available account of her story.

The recording was made at the local detachment on Nov. 2, 2015. The girl died, four to five months later in 2016, and she was never able to testify in court.

Bychok said the investigating officer on the case failed a number of “basic” best practices, including:

• asking the complainant to swear an oath;

• explaining the seriousness of the allegations and potential consequences;

• video-recording the statement with the available video recorder; and,

• fleshing out the allegations to fill in the many questions left unanswered.

“There was no evidence as to why these basic things did not happen,” Bychok said.

“Too much of the statement is left up to the imagination.”

According to the decision, the 14-year-old alleged to police that a local man abused her during a single incident on Nov. 1, 2015.

The decision does not go into detail about the allegations, but the complaint led police to charge the man with four sex crimes against an underage person.

After her death, Nunavut’s Crown prosecutor’s office filed an application asking Bychok to admit the girl’s audio statement as evidence at trial.

But in rejecting the application, Bychok found the statement could not be proven to be trustworthy or reliable—not the complainant’s fault, but largely due to poor police work.

Bychok explained that the statement is hearsay, which is an “out of court statement not subject to cross-examination.”

Cross-examining a witness, which Bychok said is “one of the most important parts of our justice system,” allows lawyers to test a witness’ testimony for honesty, accuracy and potential bias.

Hearsay can be accepted into evidence if it’s deemed, on a balance of probabilities, to be reliable.

But Bychok said he found “serious problems” with the “not very detailed” audio statement taken by an unnamed police investigator in Pond Inlet.

For example, in the statement, the girl said, “he went on top of my leg and went like that, tried to be like that… his head was here doing that and I was just like that trying to do that.”

Descriptions like this left Bychok scratching his head.

“The investigator did not ask any follow up questions to get more detail. I just do not know what all that means,” the judge said.

Without a video statement to see the complainant’s actions during her statement, Bychok said it was impossible to know her side of the story.

“The prosecutor said there was a video recorder available at the detachment, but there was no evidence to explain why the statement was not video-recorded.”

When asked if her parents were home, the complainant told the officer she would get into trouble if she told her parents about the incident.

“Why would she have been in trouble with her parents if they had found out what happened? Was there more to the story than she told the police?” Bychok asked.

“The witness is dead; these questions can never be answered. I therefore cannot say that the statement is either reliable or trustworthy.”

If this matter went to trial, it would be “unsafe to base a guilty verdict,” on this statement, said Bychok.

“If I admit this hearsay, it would take away from the right of the accused to defend himself properly, and to have a fair trial. The right to a fair trial is one of the cornerstones of our democracy. Therefore, I deny the Crown’s application. The complainant’s hearsay statement may not be used in evidence.”

It is unclear if the Crown will continue to pursue these charges, but without the complainant’s testimony the chance of prosecution is slim.