Statutory Hearsay Exception for Victims, Children and Disabled

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General Principles

See also: Traditional Exceptions to Hearsay and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Witnesses under the age of 18 who give video-taped statements shortly after the alleged incident may have their statements put in for the truth of their contents under s. 715.1 where the witness is able to adopt the statement in court. Once a video statement is admitted under s.715.1, the absence of the ability to cross-examine the witness only goes to the weight of the evidence and cannot be used to argue its admissibility.[1]

Section 715.1 states:

Evidence of victim or witness under 18
715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
Order prohibiting use
(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).
R.S., 1985, c. 19 (3rd Supp.), s. 16; 1997, c. 16, s. 7; 2005, c. 32, s. 23.


CCC

Evidence of victim or witness who has a disability
715.2 (1) In any proceeding against an accused in which a victim or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
Order prohibiting use
(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).
1998, c. 9, s. 8; 2005, c. 32, s. 23.


CCC

This section was found to not violate section 11(b) and 7 of the Charter on account that the discretion remains with the judge.[2]

Factors to consider include:[3]

  1. The form of questions used by any other person appearing in the videotaped statement;
  2. any interest of anyone participating in the making of the statement;
  3. the quality of the video and audio reproduction;
  4. the presence or absence of inadmissible evidence in the statement;
  5. the ability to eliminate inappropriate material by editing the tape;
  6. whether other out‑of‑court statements by the complainant have been entered;
  7. whether any visual information in the statement might tend to prejudice the accused (for example, unrelated injuries visible on the victim);
  8. whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant;
  9. whether the trial is one by judge alone or by a jury; and
  10. the amount of time which has passed since the making of the tape and the present ability of the witness to effectively relate to the events described.

The party may seek to have a video statement entered into evidence supporting an allegation before the court. In order for the video to be entered into evidence, the applicant must establish the following:

  1. the victim or witness in the video recording was under 18 years old at the time of the incident;
  2. the video recording was "made within a reasonable time after the alleged offence";
  3. the victim or witness "describes the acts complained of" in the video recording;
  4. the victim or witness can testify and "adopts the contents of the video recording";
  5. the judge does not have the opinion that the admission of the video recording "would interfere with the proper administration of justice".

Where the video recording is admitted, "it is only admissible to the extent that it "describes the act complained of"". Any other evidence is not admissible.[4]

Where questions and answers not describing the act complained of cannot be effectively and fairly edited, it may "necessitate the exclusion of the entire statement."[5]

The witness must confirm that (1) they made the statement, (2) they were trying to tell the truth, and (3) still believes that the statement is true.[6]

There does not need to be proof that the witness recalls any facts or can vouch for the accuracy of the video.[7]

Circumstances where the witness has already testified of a preliminary inquiry successfully will wait against the use of screened testimony.[8]

A "reasonable time" will not likely extend into years.[9]

See also: R v Meddoui 1990 CanLII 2592 (AB CA), (1990), 61 CCC (3d)
R v F(C) 1997 CanLII 306 (SCC), [1997] 3 SCR 1183

  1. R v R.G.B., 2012 MBCA 5 (CanLII) at para 42
  2. R v D.O.L., 1993 CanLII 46 (SCC), (1993), 85 CCC (3d) 289
  3. R v D.O.L. at 463 (SCR)
    R v F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183
  4. R v Toten, 1993 CanLII 3427 (ON CA) at para 55
    R v J.A.T., 2012 ONCA 177 (CanLII) at para 147, 159
  5. Toten at para 55
  6. R v Castillo Cortes, 2013 ABCA 314 (CanLII)
  7. R v Castillo Cortes
  8. E.g. R v Rohrich, 2009 CanLII 51510 (ONSC)
  9. e.g. see R v Lajoie, 2011 ONSC 2005 (CanLII)