R. v. P.S., 2019 ONCA 637
[12] As can be seen, s. 715.1(1) contains four mandatory statutory prerequisites to admission of a video-recorded statement. To introduce the statement, the Crown must establish on a balance of probabilities that:
(1) the video-recorded statement was provided by a complainant or witness who was under the age of eighteen years “at the time the offence is alleged to have been committed”;
(2) the video recording was made “within a reasonable time after the alleged offence”;
(3) the complainant or witness describes the “acts complained of” in the video recording; and
(4) while “testifying”, the complainant or witness “adopts the contents of the video recording”.
[13] In R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, the decision upholding the constitutional validity of s. 715.1,[1] both the majority and concurring opinions discussed a residual judicial discretion at common law to exclude statements on the basis that their probative value is outweighed by their prejudicial effect: L. (D.O.), at p. 429, Lamer C.J.; at p. 461, L’Heureux-Dubé J., concurring. See also: R. v. F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at paras. 51-52. That residual discretion was later explicitly embedded in s. 715.1(1) of the Criminal Code by virtue of An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 23, which came into force January 2, 2006. Therefore, even where the four statutory prerequisites to admission have been met, s. 715.1(1) now requires exclusion where the “admission of the video recording in evidence would interfere with the proper administration of justice.”
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