View source for Statutory Hearsay Exception for Victims, Children and Disabled

[[fr:Exception_statutaire_par_ouï-dire_pour_les_victimes,_les_enfants_et_les_handicapés]]
{{Currency2|January|2018}}
{{LevelZero}}{{HeaderHearsay}}{{HeaderTestimonialAids}}
==General Principles==
{{seealso|Traditional Exceptions to Hearsay|Sworn Testimony Exception to Hearsay|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.<ref>
{{CanLIIRP|RGB|fprvr|2012 MBCA 5 (CanLII)|287 CCC (3d) 463}}{{perMBCA|Freedman and Chartier JJA}}{{AtL|fprvr|42}}</ref>

Section 715.1 states:
{{quotation2|
; 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.
<br>
; Order prohibiting use
(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1) {{AnnSec7|715.1(1)}}.
<br>
R.S., {{LegHistory80s|1985, c. 19 (3rd Supp.)}}, s. 16;
{{LegHistory90s|1997, c. 16}}, s. 7;
{{LegHistory00s|2005, c. 32}}, s. 23.
|{{CCCSec2|715.1}}
|{{NoteUp|715.1|1|2}}
}}
{{quotation2|
; 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.
<br>
; Order prohibiting use
(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1) {{AnnSec7|715.2(1)A}}.
<br>
1998, c. 9, s. 8;
{{LegHistory00s|2005, c. 32}}, s. 23.
|{{CCCSec2|715.2}}
|{{NoteUp|715.2|1|2}}
}}

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.<ref>
{{CanLIIRP|Untinen|h5wh5|2017 BCCA 320 (CanLII)|355 CCC (3d) 371}}{{perBCCA|Fitch JA}}{{atL|h5wh5|45}}<br>
</ref> 
However, they cannot be used to "bolster" credibility.<ref>
{{ibid1|Untinen}}{{atL|h5wh5|45}}<br>
</ref>

; Pre-requisites for Admission

Generally, the applicant must present evidence establishing the following:<ref>
see also {{CanLIIRP|GRS|j5hqq|2020 ABCA 78 (CanLII)|AJ No 242}}{{TheCourtABCA}}
</ref>
# the victim or witness in the video recording was under 18 years old at the time of the incident;
# the video recording was "made within a reasonable time after the alleged offence";
# the victim or witness "describes the acts complained of" in the video recording;
# the victim or witness can testify and "adopts the contents of the video recording"; and
# the judge does not have the opinion that the admission of the video recording "would interfere with the proper administration of justice".

The prerequisites to admission are built-in guarantees of trustworthiness and reliability.<Ref>
{{CanLIIRP|F(CC)|1fqwc|1997 CanLII 306 (SCC)|[1997] 3 SCR 1183 (SCC)}}{{perSCC|Cory J}}{{atL|1fqwc|40}}<Br>
</ref>
It includes the ability of the trier-of-fact to observe the demeanour of the complainant and assess their personality and intelligence.<Ref>
{{ibid1|F(CC)}}}{atL|1fqwc|40}}<br>
{{CanLIIRP|RAH|h3cp9|2017 PECA 5 (CanLII)|348 CCC (3d) 248}}{{perPEICA|Mitchell JA}}{{AtL|h3cp9|22}}
</ref>

The admission of the recording under s. 715.1 considers only threshold reliability and not ultimate reliability.<Ref>
{{ibid1|RAH}} at para 23
</ref>

; 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.<ref> 
{{supra1|RAH}}{{AtL|h3cp9|18}} citing Pacioocco, The Law of Evidence, 7th Ed, 2015{{atp|516}} and para 21 ("The primary goal in s.715.1 is to create a record of what is probably the best recollection of the events which will be of great assistance in ascertaining the truth ")<br>
{{CanLIIRP|F(CC)|1fqwc|1997 CanLII 306 (SCC)|[1997] 3 SCR 1183 (SCC)}}{{perSCC|Cory J}}{{atL|1fqwc|21}}<Br>
</ref>

The most important goal is to create a record of the best recollection possible.<ref>
{{supra1|RAH}}{{AtL|h3cp9|21}}<br>
{{supra1|F(CC)}}{{perSCC|Cory J}}{{atL|1fqwc|21}}<Br>
</ref>

It also recognizes that children more than adults have better recollection shortly after events than they do months or years later.<ref>
{{ibid1|F(CC)}}{{atL|1fqwc|19}}<br>
</ref> 
Children's memories fade faster than adults.<ref>
{{supra1|F(CC)}}{{atL|1fqwc|19}}<br>
{{CanLIIRP|DOL|1frxn|1993 CanLII 46 (SCC)|85 CCC (3d) 289}}{{perSCC|L'Heureux‑Dubé J}}{{Atp|468}}<br>
</ref>

; 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.<ref>
{{supra1|L(DO)}}</ref>

; Burden
The onus is upon the Crown to satisfy the requirements of s. 715.1.<ref>
{{supra1|RAH}}{{AtL|h3cp9|25}} ("The onus falls on the Crown to establish the conditions on a balance of probabilities")<br>
{{CanLIIRP|SG|1rql9|2007 CanLII 20779 (ON SC)|221 CCC (3d) 439}}{{perONSC|Spies J}}<br>
</ref>

; Limited Discretion to Exclude
The judge retains discretion to exclude the video statement where prejudice would "outweigh" its probative value. This discretion is limited to "rare" cases where the admission would be "unfair".<Ref>
{{ibid1|F(CC)}}{{atL|1fqwc|51}} ("The minority reasons of L’Heureux Dubé J. in L. (D.O.), supra, indicate that, prior to the introduction of a videotaped statement under s. 715.1, a voir dire must be held in order to review the contents of the tape to ensure that the statements within it conform to the rules of evidence. I agree with this conclusion.  Both L. (D.O.) and Toten, supra, indicate that, at this stage, the trial judge may exercise his or her discretion to exclude the videotaped statement if prejudice from its admission would outweigh its probative value.  The discretion to exclude the videotape is limited to those cases where its admission would operate unfairly to the accused. Those cases will be relatively rare.")
</ref>

{{reflist|2}}

==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.<ref>
{{CanLIIRP|F(CC)|1fqwc|1997 CanLII 306 (SCC)|[1997] 3 SCR 1183 (SCC)}}{{perSCC|Cory J}}{{atL|1fqwc|44}}<Br>
{{CanLIIRP|RAH|h3cp9|2017 PECA 5 (CanLII)|348 CCC (3d) 248}}{{perPEICA|Mitchell JA}}{{AtL|h3cp9|30}}<br>
</ref>

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.<ref>
{{CanLIIRx|Castillo Cortes|g0n8d|2013 ABCA 314 (CanLII)}}{{TheCourtABCA}}
</ref>

There does not need to be proof that the witness recalls any facts or can vouch for the accuracy of the video.<ref>
{{ibid1|Castillo Cortes}}
</ref>

{{reflist|2}}

==Interference with "Administration of Justice"==
The question on the administration of justice concerns the fairness to the accused with the admission of the video. Judges should consider whether cross-examining the child is possible in "any meaningful way."<ref>
{{supra1|GRS}}{{atL|j5hqq|13}}
</ref>
Also, the judge should consider whether the prejudicial effect outweighs the probative value.<Ref>
{{supra1|GRS}}{{atL|j5hqq|13}}
</ref>

; Factors
Factors to consider include:<ref>
{{ibid1|DOL}}{{atp|463}} (SCR)<br> 
{{supra1|F(CC)}}{{atL|1fqwc|40}}</ref>
#The form of questions used by any other person appearing in the videotaped statement;
#any interest of anyone participating in the making of the statement;
#the quality of the video and audio reproduction;
#the presence or absence of inadmissible evidence in the statement;
#the ability to eliminate inappropriate material by editing the tape;
#whether other out‑of‑court statements by the complainant have been entered;
#whether any visual information in the statement might tend to prejudice the accused (for example, unrelated injuries visible on the victim);
#whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant;
#whether the trial is one by judge alone or by a jury; and
#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.

Circumstances where the witness has already testified of a preliminary inquiry successfully will weigh against the use of screened testimony.<ref>
E.g. {{CanLIIRx|Rohrich|25vqr|2009 CanLII 51510 (ON SC)}}{{perONSC|Lalonde J}}
</ref>

See also: {{CanLIIRP|Meddoui|1nnx6|1990 CanLII 2592 (AB CA)|61 CCC (3d)}}{{perABCA|Kerans JA}}<br> 
{{CanLIIRP|F(CC)|1fqwc|1997 CanLII 306 (SCC)|[1997] 3 SCR 1183}}{{perSCC|Cory J}}

{{reflist|2}}

=="Acts 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.<ref>
{{CanLIIRP|Toten|1p79f|1993 CanLII 3427 (ON CA)|83 CCC (3d) 5}}{{perONCA-H|Doherty JA}}{{atL|1p79f|55}}<br>
{{CanLIIRP|JAT|fqmzd|2012 ONCA 177 (CanLII)|288 CCC (3d) 1}}{{perONCA-H|Watt JA}}{{atsL|fqmzd|147|}}, {{atsL-np|fqmzd|159|}}</ref>

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."<ref>
{{CanLIIRP|RAH|h3cp9|2017 PECA 5 (CanLII)|348 CCC (3d) 248}}{{perPEICA|Mitchell JA}}{{AtL|h3cp9|31}}<br>
</ref>

A recitation of the "acts" can also include a description of the "attacker's physical features, or the complainant's naming of the attacker" if recognized.<Ref>
{{CanLIIRP|Scott|g9jtf|1993 CanLII 14677 (ON CA)|87 CCC (3d) 327}}{{perONCA-H|Doherty JA}} at p. 340 ("If the section is to serve its purpose, the young complainant must be allowed to give his or her version of the events underlying the charge before the court. In a case like this one, those events included everything that happened from the time N.L. first met her assailant until he left her and she started for home. A recitation of "the acts complained of" can 	also include the complainant's description of his or her attacker's physical features, or the complainant's naming of the attacker if the complainant knows that person")
</ref>

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."<ref>
{{supra1|Toten}}{{atL|1p79f|55}}</ref> 

Any part of the video that is otherwise inadmissible should be edited out. Section 715.1 does not trump any other rules of evidence.<ref>
{{supra1|RAH}}{{AtL|h3cp9|32}}<br>
{{supra1|JAT}}{{atp|429}}<br>
</ref>

{{reflist|2}}

==Reasonable Time==
The purpose of this requirement is to ensure reliability.<ref>
{{CanLIIRP|RAH|h3cp9|2017 PECA 5 (CanLII)|348 CCC (3d) 248}}{{perPEICA|Mitchell JA}}{{AtL|h3cp9|41}}<br>
{{CanLIIRP|F(C)|1fqwc|1997 CanLII 306 (SCC)|[1997] 3 SCR 1183}}{{perSCC|Cory J}}{{atL|1fqwc|40}}<br>
{{CanLIIRP|Desjarlais|g00dr|2013 MBQB 190 (CanLII)|295 Man R (2d) 196}}{{perMBQB|Greenberg J}}{{atL|g00dr|15}}<Br>
</ref>
The greater the time the greater the chance of loss of memory or third party influence upon the memory.<ref>
{{supra1|RAH}}{{AtL|h3cp9|41}}<br>
</ref>

A "reasonable time" is a fact-driven determination.<ref>
{{supra1|RAH}}{{AtL|h3cp9|33}}<br>
</ref>

Courts have endorsed periods of 5 months<ref>
{{supra1|DOL}}</ref>, 17 months<ref>
{{CanLIIRP|SM|2dc21|1995 ABCA 198 (CanLII)|98 CCC (3d) 526}}{{TheCourtABCA}}<br></ref>, 2 years,<ref>
{{CanLIIRP|S(P)|1cww7|2000 CanLII 5706 (ON CA)|144 CCC (3d) 120}}{{perONCA|Moldaver JA}}<Br>
</ref>, and even 3 years.<ref>
{{CanLIIRP|SG|1rql9|2007 CanLII 20779 (ON SC)|221 CCC (3d) 439}}{{perONSC|Spies J}}<br>
</ref>

However, in other circumstances ranges of 20 months can be found to be unreasonable.<ref>
see {{CanLIIRP|TJA|grwz3|2016 ONCJ 314 (CanLII)|2016 OJ No. 2876 (Ont.C.J.)}}{{perONCJ|Harris J}}<br>
</ref>
Four years was also found unreasonable.<ref>
{{CanLIIRP|AGB (No. 3)|fn3pc|2011 ABPC 260 (CanLII)|520 AR 152}}{{perABPC|Rosborough J}}
</ref>

It will not likely extend into years.<ref>
e.g. see {{CanLIIRx|Lajoie|fkw5k|2011 ONSC 2005 (CanLII)}}{{perONSC|Ellies J}}
</ref>
For example, two years has been called "borderline" in certain circumstances.<ref>
{{supra1|S(P)}}<Br>
</ref>

There is some recognition that factor such as the child's fear and their inclination to delay reporting.<ref>
{{supra1|SG}}<br>
</ref>

Factors to consider include:<Ref>
{{supra1|RAH}} at para 42
</ref>
# the age of the child, 
# the relationship of the child to the accused, 
# the length of time and the frequency of the offence, 
# the seriousness of the offence, 
# any developmental stages which the child may have gone through and
# any evidence that something might have happened during the time period which may have influenced the statement or negatively impacted the reliability of the statement.

 

{{reflist|2}}

==Procedure==
Procedure would often involve the Crown calling parent, counsellor or police officer.<ref>
{{supra1|RAH}}{{AtL|h3cp9|26}}<br>
</ref>
Where the child is called the trial judge has discretion to permit leading questions from the Crown to get child's evidence out.<ref>
{{CanLIIRP|CCF|1fqwc|1997 CanLII 306 (SCC)|[1997] 3 SCR 1183}}{{perSCC|Cory J}}{{atL|1fqwc|42}}<br>
{{supra1|RAH}}{{AtL|h3cp9|26}}<br>
</ref>

; Voir Dire
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.<ref>
{{CanLIIRP|RAH|h3cp9|2017 PECA 5 (CanLII)|348 CCC (3d) 248}}{{perPEICA|Mitchell JA}}{{AtL|h3cp9|23}}<br>
{{supra1|DOL}}{{atps|462 to 463}}<Br>
{{supra1|CCF}}{{atsL|1fqwc|51| and 54}}<br>
</ref>

Failure to hold the voir dire is not fatal so long as there is "no substantial wrong" resulting from the omission.<ref>
{{supra1|RAH}}{{AtL|h3cp9|23}}<br>
{{supra1|CCF}}{{atL|1fqwc|54}}<br>
</ref>

; Use of Video During Jury Trial
Generally, in a jury trial the video recording of the testimony ''cannot'' be brought to the jury room during deliberations.<ref>
{{CanLIIRP|Kilabuk|gb3hk|1990 CanLII 10985 (NWT SC)|60 CCC (3d) 413}} per De Weerdt J
</ref>
However, the trial judge has discretion to allow the video to be taken for deliberation so long as it does not render the trial unfair.<ref>
{{CanLIIRP|Noftall|1gblh|2004 CanLII 19785 (ON CA)|181 CCC (3d) 470, 182 OAC 150}}{{perONCA|Laskin JA}}
</ref>
{{reflist|2}}

==See Also==
* [[Precedent - Notice to Admit Police Statement of Vulnerable Witness]]