R. v. R.A.H., 2017 PECA 5
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[15] A videotaped statement by a complainant is hearsay and therefore presumptively inadmissible. Section 715.1 is a statutory exception which permits a video recorded out-of-court statement to be admitted for the proof of its contents provided certain conditions are met.
[16] Section s.715.1 reads as follows:
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.
(2) The presiding judge or justice may prohibit any other use of a video recording referred to in subsection (1).
[17] The purpose of the section was succinctly stated by Lamer C.J. in R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at para.1, as follows:
... It is my view that s. 715.1 of the Criminal Code, R.S.C., 1985, c. C‑46, is a response to the dominance and power which adults, by virtue of their age, have over children. Accordingly, s. 715.1 is designed to accommodate the needs and to safeguard the interests of young victims of various forms of sexual abuse, irrespective of their sex. By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and the discovery of truth.
[18] David Paciocco and Lee Stuesser in their book The Law of Evidence, 7th Ed., 2015 (Irwin Law), at pp.516-517, opine that s.715.1 has two main purposes:
Section 715.1 is designed to achieve two main purposes. First it aids in the preservation of evidence and the discovery of truth. The videotape preserves an early account of the child's evidence, given in a more natural setting, which may well provide the best account of what took place, an account also free from subsequent influence or suggestion. “The video record may indeed be the only means of presenting evidence. For example, a child assaulted at the age of three or four years may have very little recollection of the events a year or two later when the child is attempting to testify at trial.” Second, using the videotape at trial makes it less stressful and traumatic for the child. It reduces the number of interviews that the child must undergo prior to trial in which the child faces repeated questioning, most often by strangers, usually concerning a very painful incident. At trial the chid is freed from the initial need to recount the incident in a direct examination, although to be sure the child will be subject to cross-examination.”
[19] Cory J. in R. v. F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 (SCC), at para.19, wrote that it is self-evident that children, even moreso than adults, will have a better recollection of events shortly after they occur than they will some months or years later.
[20] Both Cory J. in F. (C.C.), at para.19, and L'Heureux-Dubé J. in L. (D.O.), at p.468, cite the same article as support for the conclusion that although children may have clear and accurate memories at the time of the occurrence, children's memories may fade faster than adults. (Flin and Spencer: “Do children forget faster?”, [1991] Crim.L.R. 189.)
[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 (F. (C.C.), para.21).
[22] The section provides what Cory J. calls built-in guarantees of trustworthiness and reliability (F. (C.C.), para.40). The factors which provide the requisite reliability include: (a) the requirement that the statement be made within a reasonable time after the alleged offence; (b) the fact that the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor and assess the personality and intelligence of the child; and (c) the requirement that the child attest that he/she was attempting to be truthful at the time the video was made and the child can be cross-examined as to whether or not the child was telling the truth at the time the video was made (F. (C.C.), para.42).
[23] At the admissibility stage the court is considering threshold reliability, not ultimate reliability. Threshold reliability is concerned with whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. Ultimate reliability on the other hand is what the trier of fact then decides to do with the admitted hearsay evidence including what weight if any to attach to it (R. v. Napope, 2015 ABCA 27, at para.30). Both L'Heureux-Dubé J. in L. (D.O.), pp.462-463, and Cory J. in F. (C.C.), paras.51 and 54, state that a voir dire must be held in order to ensure that the statements conform to the rules of evidence and to confirm the requirements of s.715.1 are met. Failure to hold a voir dire is not necessarily fatal if no substantial wrong results therefrom (F. (C.C.), para.54).
[24] The conditions which must be met before a video statement is admissible under s.715.1, in addition to the fact that the complainant/witness was under the age of 18 at the time of the offence, are:
1) the video was made within a reasonable time after the alleged offence;
2) the video describes the acts complained of; and
3) the complainant adopts the contents of the video.
[25] The onus falls on the Crown to establish the conditions on a balance of probabilities (R. v. S.G., 2007 CanLII 20779 (Ont.S.C.)).
[26] The Crown may call any number of witnesses in the voir dire to give relevant evidence. Often a parent, counsellor, or police officer is called. When calling the child, the preferred course is to play the video in court while the child watches. The child can then, in a few simple questions, adopt the video. The trial judge has the discretion to permit counsel to use leading questions in examination-in-chief in order to get the child's evidence before the court (F. (C.C.), para.42). The child may be cross-examined on the voir dire.
[27] Having seen and heard the video, the trial judge is in a much better position to act as gate keeper and to admit the statements if they meet the conditions set out in s.715.1.
[28] Even if the conditions have been met, the trial judge still has a discretion to exclude the video if the trial judge is of the opinion that its admission would interfere with the proper administration of justice. L'Heureux-Dubé J. set out various factors to be considered in L. (D.O.), p.463, in exercising one's discretion to exclude:
a) the form of questions used by any other person appearing in the videotaped statement;
b) any interest of anyone participating in the making of the statement;
c) the quality of the video and audio reproduction;
d) the presence or absence of inadmissible evidence in the statement;
e) the ability to eliminate inappropriate material by editing the tape;
f) whether other out-of-court statements by the complainant have been entered;
g) whether any visual information in the statement might tend to prejudice the accused, for example, unrelated injuries visible on the victim;
h) whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant;
i) whether the trial is one by judge alone or by jury; and
j) 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.
[29] If the trial judge determines that the 715.1 conditions are met and the court is not of the opinion that its admission will interfere with the proper administration of justice, then the video is admitted into evidence. It, together with whatever viva voce evidence the child gives, becomes the child's whole evidence-in-chief. The child may then be cross-examined in the trial proper.
The conditions
• adopts
[30] The test for adoption of the video statement is not onerous. The child need only attest that he/she was attempting to be truthful at the time the statement was made (F. (C.C.), para.44).
• acts complained of
[31] The description of the acts complained of must include more than a simple physical description. The child must be allowed to give his/her version of the events underlying the offence. This would include such things as their relationship with the accused and other details essential to explain the child's version.
[32] On the other hand, should the video contain evidence that is otherwise inadmissible, the trial judge should edit it out. Section 715.1 does not trump the normal rules of evidence (R. v. J.A.T., 2012 ONCA 177, at paras.146-147; L. (D.O.), p.429).
• reasonable time
[33] What is a reasonable time after the alleged offence is fact-driven. Appeal courts should not lightly interfere with findings of fact unless the appeal court concludes that the trial judge made an error either by failing to recognize or misinterpreting an important and relevant piece of evidence or by reaching an erroneous conclusion (L. (D.O.), p.467).
[34] In L. (D.O.) there was a five-month delay between the alleged offence and the video statement. The Supreme Court of Canada found this to be reasonable. The Supreme Court of Canada noted in that case that there is a tendency of children to delay disclosure (p.468). That observation would, in my view, support a finding that a longer period of time would be reasonable. On the other hand, the Supreme Court of Canada also noted that children's memories may fade faster than those of adults (p.468). This factor would, in my view, tend to support a shorter period of time as being reasonable. There is also a suggestion from Paciocco and Stuesser, previously quoted at para.18 herein, that a shorter period of time between the alleged offence and the statement serves to ensure that the statement is free from subsequent influence or suggestion.
[35] In R. v. S.M., 1995 ABCA 198, a period of 17 months was found to be reasonable and the court inferred that the explanation for the delay was the natural reluctance of the child to complain plus an honest hesitation by the mother about what was the right thing to do (para.4).
[36] In R. v. T.J.A., 2016 OJ No. 2876 (Ont.C.J.), a video made 20 months after the alleged offence was found not to have been made within a reasonable time. There the complainant had disclosed to her mother immediately after the incidents and her mother spoke to the school vice principal. The complainant and the mother went along with the decision of the vice principal to deal with the matter in-house. That explained the delay but was not sufficient to convince the court that 20 months was a reasonable time.
[37] In R. v. S. (P.), 2000 CanLII 5706 (Ont.C.A.), the court found a delay of “approximately two years” was, in the circumstances of that case, reasonable although the court called it a “border-line case.” Moldaver J.A. (as he then was) for the court, wrote at para.71:
In considering whether a videotape has been made within a reasonable time, the court must balance a number of factors, the most important being the reasons for the delay and the impact of the delay on the child's ability to accurately recall the events in issue.
The evidence in that case revealed three reasons for the delay. The first was that the witness was a timid and fearful child who found it extremely difficult to talk about the incident. She was so fearful and timid that she was described as “an unresponsive witness” (para.41) and cross-examination was said to have been proven “to be an exercise of futility “(para.55). Secondly, the accused was her older cousin which brought into play family dynamics. Finally, the fact that she was victimized by her brother before and after the incident with the accused was a factor that, as the court said, could only have added to her fear and confusion (para.74).
[38] In addition, in that case there was no evidence that anything happened within the two-year time frame that may have influenced the complainant so as to cast doubt on the reliability of her statement (para.75).
[39] In R. v. S.G., 2007 CanLII 20779 (Ont.S.C.), a delay of three years was found to be reasonable. In that case the explanation for the delay was fear. The accused had hit the complainant and her mother. The child feared that the accused would assault her mother if the child disclosed to the authorities.
[40] In R. v. A.G.B. (No. 3), 2011 ABPC 260, the Alberta Provincial Court canvassed the caselaw and held that a video statement made four years after the incident inadmissible. Rosborough, PCJ, found that the “passage of time is likely to have adversely affected” the complainant's memory.
[41] The purpose of requiring the statements to be recorded within a reasonable time relates to the reliability of the statement (F. (C.C.), supra, para.40, and R. v. Desjarlais, 2013 MBQB 190, at para.15). The longer the delay the greater the impact on the child's memory and the greater the chances of outside influences or third party suggestions poisoning the memory well. The longer the delay the greater the concern about reliability and in my view, the greater the need for scrutiny.
[42] While each case is fact specific, a court may determine that a video statement made months or even years after the alleged offence had been made within a reasonable time by considering whether there is a satisfactory explanation for the delay and the impact on the delay on the child's ability to accurately recall the events. Factors to be considered include amongst other things, 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 as well as any evidence that something might have happened during the time period which may have influenced the statement or negatively impacted the reliability of the stateme
