Entering into evidence the taped testimony of a child complainant or a person who has difficulty communicating evidence by reason of a disability

Sections 715.2 and section 715.1 are statutory exceptions to the hearsay rule, permitting an out-of-court statement to be admitted for the truth of its contents.

Section 715 permits reception of a video-recorded statement describing the relevant events by a person in a prescribed class of witness.  The section is divided into two subsections. Each deals with a different category of witness. Section 715.1 pertains to witnesses under the age of 18 at the time of the offence. Section 715.2 pertains to witnesses who have a disability that makes it difficult to communicate evidence.

The Purpose behind the Provisions

The intention behind section 715.1 is to preserve the evidence of children who might not otherwise recall events that took place months or years before and also to remove the need for them to repeat their story many times, both in an out of court.

House of Commons Debates, 36th Parl., 1st Sess., No. 57 (11 Feb 1998) at 3743.

The intention of Parliament in introducing the language now contained in s. 715.2 of the Criminal Code was to increase access to justice for people with disabilities who would, due to physical, cognitive or other types of disabilities affecting their ability to communicate in court, otherwise be prevented from participating in the proceedings.

R. v. Osborne, 2017 ONCA 129, at para 54.

Preconditions to Admission

There are several conditions that must be met before the video-recording may be admitted for the truth of its contents. The maker must fall within one of the two classes of witnesses, and

·         The video-recording must be made within a reasonable time after the alleged offence and describe the relevant acts.

·         The witness must, while testifying, adopt the contents of the video-recording while giving evidence in the proceedings in which it is tendered.

·         The presiding judge justice must not be of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

Adopting the Contents of the Video Recording

Adopting the contents of the video-recording does not require that the witness possess a present memory of the events referred to in the video

In the Supreme Court’s decision of R. v. C.C.F., [1997] 3 S.C.R. 1183 the court concluded that under s. 715.1, a child witness adopts his or her video-recorded statement while testifying if the child recalls giving the statement and testifies that he or she was, at the time of giving the statement, attempting to be truthful: C.C.F., at paras. 35-41.

In C.C.F., the Supreme Court held that the adoption test in s. 715.1 does not require that the child verify the accuracy and contents of the statement based on a present memory of the events referred to in the video-recorded statement: C.C.F., at paras. 38-41. 

Similarly, section 715.2 does not require the witness to verify the accuracy and contents of the statement based on a present memory of the events referred to in the video-recorded statement.

R. v. Osborne, 2017 ONCA 129, at para 74.

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.

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Evidence of victim or witness who has a disability

715.1 (2) 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.