The Video-Recorded Statement of a Witness under 18

Section 715 of the Criminal Code permits reception of a video-recorded statement (typically, the complainant’s statement to police) describing the relevant events by a person in a prescribed class of witness.  Section 715.1 pertains to witnesses under the age of 18 at the time the offence is alleged to have occurred.

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. 

Criminal Code

Video-recorded Evidence

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.

The Dual Purpose of s. 715.1

Section 715 has the dual purpose of

·         preserving an early record of the complainant's evidence to aid in the search for truth, and

·         making participation in the criminal justice system less stressful and traumatic for child and adolescent complainants.

The former goal is achieved by obtaining an account of the event while it is fresh in the complainant’s mind and more likely to be full and accurate, and the latter by permitting that account to be given in an environment that is more comfortable and non-threatening for the complainant.

R. v. Aksidan, 2006 BCCA 258 (CanLII), at para. 30.

Threshold Admissibility of the Video Statement under Section 715.1

There are several conditions that must be met before the video-recording may be admitted for the truth of its contents:

a.    The maker must fall within one of the two classes of witnesses,

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

c.    the witness must adopt the contents of the video-recording while giving evidence in the proceedings in which it is tendered.

The Test for Adoption

For such a statement to become evidence at trial, the party tendering it as evidence must establish that the complainant adopted the contents of the videotape while giving evidence at trial:

R. v. F. (C.C.), [1997] 3 S.C.R. 1183, at para. 30.

The test for adoption is not overly stringent. It does not require that the witness have a present recollection of the events discussed and need not meet the standard for adoption of a prior inconsistent statement by an adult witness:

 F. (C.C.), at paras. 33, 36, and 40.

Under s. 715.1, the statement is adopted if the complainant or witness recalls making the statement and trying to be truthful at the time the statement was made:

F. (C.C.), at para. 41.

The Adopted Video-statement Comprises the Whole or Part of the Complainant’s Evidence-in-Chief

Once the trial judge rules that the statement has been adopted, the video becomes the evidence of the events described as if the child were giving the statements on the video in open court. An adopted videotaped statement should, together with the viva voce evidence given at trial, comprise the whole of the evidence-in-chief of the complainant.

Where the complainant has an independent present memory of the events, the videotaped statement may serve to amplify the evidence given by the complainant at the trial.

The prior statement, combined with the complainant’s in-court evidence, may well afford a more complete version of the complainant’s evidence.

R. v. Toten (1993), 1993 CanLII 3427 (ON CA), at para 28; see also R. v. F. (C.C.), 1997 CanLII 306 (SCC), at para 43.

Threshold Admissibility v. Ultimate Reliability

It is important not to confuse the threshold test for the admissibility of the videotape, on the one hand, with the ultimate reliability of the complainant's evidence (of which the videotape is part) on the other.

Contradictions between the Video Statement and the Complainant’s Evidence in Cross-examination

Contradictions emerging in cross-examination of parts of a video admitted under s. 715, do not render the contradicted parts inadmissible. Self-evidently, a contradicted videotape may well be accorded less weight in the final determination of the issues. But contradiction of the video in cross-examination does not necessarily mean that the video is wrong or unreliable. It is open to the trial judge to conclude that the inconsistences are insignificant and find the video more reliable than the trial testimony.

R. v.  F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at para. 47; R. v. Radcliffe, 2017 ONCA 176 (CanLII), at para. 40.

Video Statement not to be used to Bolster the Complainant’s In-Court Testimony

Evidence of a witness’s past consistent statements may not be adduced to bolster the credibility of the witness.

See R. v. Beland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398. 

Self-serving statements of the witness elicited from another party are hearsay and self-serving statements repeated by the witness lack probative value in support of the witness’s credibility. 

The videotaped statement cannot be used to corroborate the complainant's in-court testimony since it did not emanate from a source independent of the complainant.

R. v. Aksidan, 2006 BCCA 258 (CanLII) at para. 26.

Challenges for the Defence

The witness who has no independent recollection of events at the time of trial

A witness who cannot remember the events cannot be effectively cross‑examined on the contents of his or her statement, and therefore the reliability of his or her testimony cannot be tested in that way.

However, our courts have recognized that there are other indicia which provide enough guarantees of reliability to compensate for the inability to cross‑examine as to the forgotten events: R. v.  F. (C.C.), at para 44.

Jury Instruction

It is recommended that in circumstances where the witness has not independent recollection of the events, the trier of fact should be given a special warning (similar to the one given in Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811 of the dangers of convicting based on the videotape alone: 

R. v.  F. (C.C.), at para 44; see also R. v. Meddoui (1990), 1990 CanLII 2592 (AB CA), 61 C.C.C. (3d) 345.

Conduct of the Interviewer & the Quality of the Interview

The conduct of the interviewer and the quality of the interview are factors the judge can consider in determining whether admission of the video recording as evidence would interfere with the proper administration of justice.

715.1 includes the Power to Expunge or Edit Statements

The wording of s. 715.1 itself supports the interpretation that such a provision accommodates traditional rules of evidence and judicial discretion, including the power to expunge or edit statements where necessary.

R. v. L.(D.O.), 1993 CanLII 46 (SCC), [1993] S.C.J. No. 72.