Statutory Hearsay Exception for Victims, Children and Disabled

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General Principles

See also: Traditional Exceptions to Hearsay, Sworn Testimony Exception 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) [admission of prior statement of victim or witness under 18 years].
R.S., 1985, c. 19 (3rd Supp.), s. 16; 1997, c. 16, s. 7; 2005, c. 32, s. 23.

– CCC (CanLII), (DOJ)

Note up: 715.1(1) and (2)

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) [evidence of victim or witness who has a disability].
1998, c. 9, s. 8; 2005, c. 32, s. 23.

– CCC (CanLII), (DOJ)

Note up: 715.2(1) and (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.[2] However, they cannot be used to "bolster" credibility.[3]

Pre-requisites for Admission

Generally, the applicant must present evidence establishing the following:[4]

  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"; and
  5. 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.[5] It includes the ability of the trier-of-fact to observe the demeanour of the complainant and assess their personality and intelligence.[6]

The admission of the recording under s. 715.1 considers only threshold reliability and not ultimate reliability.[7]

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.[8]

The most important goal is to create a record of the best recollection possible.[9]

It also recognizes that children more than adults have better recollection shortly after events than they do months or years later.[10] Children's memories fade faster than adults.[11]

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.[12]

Burden

The onus is upon the Crown to satisfy the requirements of s. 715.1.[13]

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".[14]

  1. ↑ R v RGB, 2012 MBCA 5 (CanLII), 287 CCC (3d) 463, per Freedman and Chartier JJA, at para 42
  2. ↑ R v Untinen, 2017 BCCA 320 (CanLII), 355 CCC (3d) 371, per Fitch JA, at para 45
  3. ↑ Untinen, ibid., at para 45
  4. ↑ see also R v GRS, 2020 ABCA 78 (CanLII), AJ No 242, per curiam
  5. ↑ R v F(CC), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183 (SCC), per Cory J, at para 40
  6. ↑ F(CC), ibid.}{atL|1fqwc|40}}
    R v RAH, 2017 PECA 5 (CanLII), 348 CCC (3d) 248, per Mitchell JA, at para 22
  7. ↑ RAH, ibid. at para 23
  8. ↑ RAH, supra, at para 18 citing Pacioocco, The Law of Evidence, 7th Ed, 2015, at p. 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 ")
    R v F(CC), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183 (SCC), per Cory J, at para 21
  9. ↑ RAH, supra, at para 21
    F(CC), supra, per Cory J, at para 21
  10. ↑ F(CC), ibid., at para 19
  11. ↑ F(CC), supra, at para 19
    R v DOL, 1993 CanLII 46 (SCC), 85 CCC (3d) 289, per L'Heureux‑Dubé J, at p. 468
  12. ↑ L(DO), supra
  13. ↑ RAH, supra, at para 25 ("The onus falls on the Crown to establish the conditions on a balance of probabilities")
    R v SG, 2007 CanLII 20779 (ON SC), 221 CCC (3d) 439, per Spies J
  14. ↑ F(CC), ibid., at para 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.")

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. ↑ R v F(CC), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183 (SCC), per Cory J, at para 44
    R v RAH, 2017 PECA 5 (CanLII), 348 CCC (3d) 248, per Mitchell JA, at para 30
  2. ↑ R v Castillo Cortes, 2013 ABCA 314 (CanLII), per curiam
  3. ↑ Castillo Cortes, ibid.

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."[1] Also, the judge should consider whether the prejudicial effect outweighs the probative value.[2]

Factors

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.

Circumstances where the witness has already testified of a preliminary inquiry successfully will weigh against the use of screened testimony.[4]

See also: R v Meddoui, 1990 CanLII 2592 (AB CA), 61 CCC (3d), per Kerans JA
R v F(CC), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183, per Cory J

  1. ↑ GRS, supra, at para 13
  2. ↑ GRS, supra, at para 13
  3. ↑ DOL, ibid., at p. 463 (SCR)
    F(CC), supra, at para 40
  4. ↑ E.g. R v Rohrich, 2009 CanLII 51510 (ON SC), per Lalonde J

"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.[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]

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.[3]

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."[4]

Any part of the video that is otherwise inadmissible should be edited out. Section 715.1 does not trump any other rules of evidence.[5]

  1. ↑ R v Toten, 1993 CanLII 3427 (ON CA), 83 CCC (3d) 5, per Doherty JA, at para 55
    R v JAT, 2012 ONCA 177 (CanLII), 288 CCC (3d) 1, per Watt JA, at paras 147, 159
  2. ↑ R v RAH, 2017 PECA 5 (CanLII), 348 CCC (3d) 248, per Mitchell JA, at para 31
  3. ↑ R v Scott, 1993 CanLII 14677 (ON CA), 87 CCC (3d) 327, per 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")
  4. ↑ Toten, supra, at para 55
  5. ↑ 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]

Factors to consider include:[13]

  1. the age of the child,
  2. the relationship of the child to the accused,
  3. the length of time and the frequency of the offence,
  4. the seriousness of the offence,
  5. any developmental stages which the child may have gone through and
  6. 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.


  1. ↑ R v RAH, 2017 PECA 5 (CanLII), 348 CCC (3d) 248, per Mitchell JA, at para 41
    R v F(C), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183, per Cory J, at para 40
    R v Desjarlais, 2013 MBQB 190 (CanLII), 295 Man R (2d) 196, per Greenberg J, at para 15
  2. ↑ RAH, supra, at para 41
  3. ↑ RAH, supra, at para 33
  4. ↑ DOL, supra
  5. ↑ R v SM, 1995 ABCA 198 (CanLII), 98 CCC (3d) 526, per curiam
  6. ↑ R v S(P), 2000 CanLII 5706 (ON CA), 144 CCC (3d) 120, per Moldaver JA
  7. ↑ R v SG, 2007 CanLII 20779 (ON SC), 221 CCC (3d) 439, per Spies J
  8. ↑ see R v TJA, 2016 ONCJ 314 (CanLII), 2016 OJ No. 2876 (Ont.C.J.), per Harris J
  9. ↑ R v AGB (No. 3), 2011 ABPC 260 (CanLII), 520 AR 152, per Rosborough J
  10. ↑ e.g. see R v Lajoie, 2011 ONSC 2005 (CanLII), per Ellies J
  11. ↑ S(P), supra
  12. ↑ SG, supra
  13. ↑ RAH, supra at para 42

Procedure

Procedure would often involve the Crown calling parent, counsellor or police officer.[1] Where the child is called the trial judge has discretion to permit leading questions from the Crown to get child's evidence out.[2]

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.[3]

Failure to hold the voir dire is not fatal so long as there is "no substantial wrong" resulting from the omission.[4]

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.[5] 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.[6]

  1. ↑ RAH, supra, at para 26
  2. ↑ R v CCF, 1997 CanLII 306 (SCC), [1997] 3 SCR 1183, per Cory J, at para 42
    RAH, supra, at para 26
  3. ↑ R v RAH, 2017 PECA 5 (CanLII), 348 CCC (3d) 248, per Mitchell JA, at para 23
    DOL, supra, at pp. 462 to 463
    CCF, supra, at paras 51 and 54
  4. ↑ RAH, supra, at para 23
    CCF, supra, at para 54
  5. ↑ R v Kilabuk, 1990 CanLII 10985 (NWT SC), 60 CCC (3d) 413 per De Weerdt J
  6. ↑ R v Noftall, 2004 CanLII 19785 (ON CA), 181 CCC (3d) 470, 182 OAC 150, per Laskin JA

See Also

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