The Discretion to Exclude the Section 715.1 Videotape Statement

Section 715.1 is a statutory exception to the rule that hearsay is inadmissible.  It permits an out‑of‑court statement to be admitted for the truth of its contents, provided that certain conditions are met.  Specifically, the complainant must be under 18 years of age, the video must have been made within a reasonable time following the alleged offence, the complainant must describe the acts complained of and, while testifying, adopt the contents of the videotape.

The Need for a Voir Dire

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. At this stage, the trial judge may exercise his or her discretion to exclude part or the whole of the videotaped statement if prejudice from its admission would outweigh its probative value.

See R. v. L.(D.O.), 1993 CanLII 46 (SCC); R. v. F. (C.C.), [1997] 3 SCR 1183, 1997 CanLII 306 (SCC), at para. 51.

The discretion to exclude the videotape is limited to those cases where its admission would operate unfairly to the accused.  Exclusion of the entire video statement will be relatively rare. 

See Toten, at p. 32; R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, at p. 548.)  L’Heureux‑Dubé J. in L. (D.O.), at p. 463.

Factors for the Trial Judge to Consider on the Issue of Exclusion

The Supreme Court of Canada has identified a number of factors which the trial judge could take into account in exercising his or her discretion to exclude a videotaped statement:

(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 a 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.

R. v. L.(D.O.), 1993 CanLII 46 (SCC).

A consideration of these factors would help to ensure that the contents of the statement generally conform to the rules of evidence and that the statement has probative value.  The discretionary power to exclude evidence should not be used to determine issues of weight. 

R. v. F. (C.C.), at para 52.