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

Statements under s. 715.1 are "not properly characterized as a prior consistent statement." Instead, they are an integral part of their in-court testimony.[2] However, they cannot be used to "bolster" credibility.[3]

Purpose
The two purposes of s. 715.1 is to preserves evidence for the discovery of truth as it captures an account without influence or suggestion. It also makes the trial process less stressful and traumatic for the child.[4]

The most important goal is to create a record of the best recollection possible.[5]

It also recognizes that children more than adults have better recollection shortly after events than they do months or years later.[6] Children's memories fade faster than adults.[7]

Constitutional
This section was found to not violate section 11(b) and 7 of the Charter on account that the discretion remains with the judge.[8]

Burden
The onus is upon the Crown to satisfy the requirements of s. 715.1.[9]

Factors
Factors to consider include:[10]

  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".

Circumstances where the witness has already testified of a preliminary inquiry successfully will wait against the use of screened testimony.[11]

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 Untinen, 2017 BCCA 320 (CanLII) at para 45
  3. Untinen, ibid. at para 45
  4. R v RAH, 2017 PECA 5 (CanLII), at para 18 citing Pacioocco, The Law of Evidence, 7th Ed, 2015 at p. 516
  5. RAH, supra at para 21
    F(CC) at para 21
  6. R v F (CC), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 (SCC), at para.19
  7. F(CC) at para 19
    L(DO), supra at p. 468
  8. R v DOL, 1993 CanLII 46 (SCC), (1993), 85 CCC (3d) 289
  9. RAH, supra at para 25
    R v S.G., 2007 CanLII 20779 (ON SC), 2007 CanLII 20779 (Ont.S.C.))
  10. DOL, ibid. at 463 (SCR)
    R v F(CC), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183 at para 40
  11. E.g. R v Rohrich, 2009 CanLII 51510 (ONSC)

Adoption

Adoption of the statement is not "onerous" and merely requires child to "attest that he/she was attempting to be truthful" in their statement.[1]

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.[2]

There does not need to be proof that the witness recalls any facts or can vouch for the accuracy of the video.[3]

  1. F(CC), supra at para 44
    RAH, supra at para 30
  2. R v Castillo Cortes, 2013 ABCA 314 (CanLII)
  3. Castillo Cortes, ibid.

Act Complained Of

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.[1]

The description of the acts must include "more than a simple physical description". It should include the child's "versions of the events underlying the offence".[2]

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."[3]

Any part of the video that is otherwise inadmissible should be edited out. Section 715.1 does not trump any other rules of evidence.[4]

  1. R v Toten, 1993 CanLII 3427 (ON CA) at para 55
    R v JAT, 2012 ONCA 177 (CanLII) at para 147, 159
  2. RAH, supra at para 31
  3. Toten, supra at para 55
  4. RAH, supra at para 32
    JAT, supra at p 429

Reasonable Time

The purpose of this requirement is to ensure reliability.[1] The greater the time the greater the chance of loss of memory or third party influence upon the memory.[2]

A "reasonable time" is a fact-driven determination.[3]

Courts have endorsed periods of 5 months[4], 17 months[5], 2 years,[6], and even 3 years.[7]

However, in other circumstances ranges of 20 months can be found to be unreasonable.[8]Four years was also found unreasonable.[9]

It will not likely extend into years.[10]For example, two years has been called "borderline" in certain circumstances.[11]

There is some recognition that factor such as the child's fear and their inclination to delay reporting.[12]

  1. RAH, supra at para 41
    F(CC), supra at para 40
    R v Desjarlais, 2013 MBQB 190 (CanLII), at para 15
  2. RAH, supra at para 41
  3. RAH, supra at para 33
  4. L(DO), supra
  5. R v SM, 1995 ABCA 198 (CanLII)
  6. R v S(P), 2000 CanLII 5706 (ON CA), 2000 CanLII 5706 (Ont.C.A.)
  7. R v SG, 2007 CanLII 20779 (ON SC), 2007 CanLII 20779 (Ont.S.C.)
  8. see R v TJA, 2016 OJ No. 2876 (Ont.C.J.)
  9. R v AGB, (No. 3), 2011 ABPC 260 (CanLII)
  10. e.g. see R v Lajoie, 2011 ONSC 2005 (CanLII)
  11. S(P), supra
  12. SG, supra

Procedure

Before admitting evidence under s. 715.1 there must be a voir dire in order to "ensure that the statement conform to the rules of evidence" and requirements of s. 715.1.[1]

Failure to hold the voir dire is not fatal so long as there is "no substantial wrong" resulting from the omission.[2]

Procedure would often involve the Crown calling parent, counsellor or police officer.[3] Where the child is called the trial judge has discretion to permit leading questions from the Crown to get child's evidence out.[4]

  1. RAH, supra at para 23
    L(DO), supra at p. 462to 463
    F(CC), supra at paras 51 and 54
  2. RAH, supra at para 23
    F(CC), supra at para 54
  3. RAH, supra at para 26
  4. F(CC), supra at para 42
    RAH, supra at para 26