When the Video Recording under 715.1(1) is not Adopted

When the Video Recording under 715.1(1) is not Adopted

In a previous blog entry, I discussed how an out-of-court video statement of a victim or witness under 18 may be admissible if, among other things, its contents are adopted by the witness or victim while testifying.

See "The Video Recorded Statement of a Witness under 18" (Stuart O'Connell, April 16, 2017).

However, even if the video recording is not adopted under s. 715.1(1), the Crown may still offer it under the principled exception to the hearsay rule. (The videotaped statement, as an out-of-court statement, offered for its truth, is hearsay).

See for instance, R. v. Burk (1999), 1999 CanLII 883 (ON CA), 139 C.C.C. (3d) 266 (Ont. C.A.)

Section 715.1 of the Code provides a statutory exception to the admissibility of this particular type of hearsay evidence, but there is also a case law exception which provides for the admissibility of this hearsay evidence where necessity and reliability have been demonstrated.

See R. v. F. (W.J.) (1999), 1999 CanLII 667 (SCC), 3 S.C.R. 569; 138 C.C.C. (3d) 1; R. v. Burk (1999), 1999 CanLII 883 (ON CA), 139 C.C.C. (3d) 266

Necessity

Necessity will usually be established in circumstances where the witness recants the statements she/he made in the video.

Reliability

In assessing the threshold reliability of the hearsay statement (ultimate reliability is a separate determination), the Court may consider a variety of factors.

The Fact that the Statement was Videotaped and Made Under Oath

The fact that a prior out-of-court statement has been videotaped may be an important factor in establishing the reliability criteria for the admission of hearsay evidence.

R. v. B. (K.G.) (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 [the Court applying the principled approach of the Khan decision to the admission of videotaped hearsay evidence].

In R. v. B. (K.G.) Lamer C.J., speaking for the Court, noted at p. 293:

In addition to an oath or solemn affirmation and warning, then, a complete videotape record of the type described above, or one which duplicates the experience of observing a witness in the court-room to the same extent, is another of the other important indicium of reliability which will satisfy the principled basis for the admission of hearsay evidence.

Other Potentially Relevant Factors (non-exhaustive list)

•           The circumstances in which the statement was made;

•           Whether there are adequate substitutes for traditional safeguards;

•           Whether the complainant has a motive to lie;

•           The relationship between the complainant and the Accused;

•           The relationship between the complainant and the recipient of the statement;

•           The possibility that the complainant is mistaken;

•           The complainant’s perception or memory of events;

•           The complainant’s state of mind at the time that the statement was made;

•           The complainant’s use of language;

•           The content of the statement;

•           Whether the statement was contrary to the complainant’s interest; and

•           The statement’s similarity to admitted evidence and supporting and contradictory   evidence.