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.

Comments

Post a Comment

Popular posts from this blog

Edgar Statements: an Exception to the Rule Against Prior Consistent Statements

It is open to a trial judge to admit an accused's spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross- examination. The statement of the accused is not strictly evidence of the truth of what was said (subject to being admissible under the principled approach to hearsay evidence) but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence. As a practical matter, once the accused has testified, he or she should be entitled to call in reply the police officer who heard and recorded the statement to verify to the jury the fact that it was made. R. v. Edgar, 2010 ONCA 529 In sum...
Read more

Police Powers: Random Vehicle Stops

Random Vehicle Stops under the HTA The Highway Traffic Act of Ontario (specifically, section 216(1)) of the Act) allows a police officer to stop a motor vehicle even in the absence of a reasonable suspicion of an offence having been committed providing it is done for the purpose of general traffic regulation such as checking for a valid driver’s license and insurance, mechanical fitness of the vehicle and the sobriety of the driver. In short, there is a statutory basis for police to stop vehicles for the purpose of highway regulation and safety, even where the stops are random. Brown v. Durham , at para. 21; R. v. Ladouceur , [1990] 1 S.C.R. 1257, at p. 1288; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 492. Equivalent legislation in Canada’s other provinces provides likewise. See, for instance, section 201.1 of Newfoundland and Labrador’s Highway Traffic Act , R.S.N.L. 1990, c. H-3, and British Columbia’s Motor Vehicle Act, [RSBC 1996] Chap...
Read more

Post-event Demeanour of a Sexual Assault Victim

When assessing the credibility of a witness, there are a number of factors to consider. These may include a witness’s reactions to events. It has long been held that post-event demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant’s version of events. R. v. J.J.A . , 2011 SCC 17, [2011] 1 S.C.R. 628, at paras. 40-41, per Rothstein J. in dissent.   [ The majority decision, written by Charron, J., had ordered a new trial, solely ruling on the admissibility of fresh evidence, and so had not found it necessary to deal with the issue of post-event demeanour of the complainant ].   See also R. v. J.A. , 2010 ONCA 491 (CanLII), at paras. 17 and 18 [renamed R. v. J.J.A  on appeal to the SCC]; R. v. Mugabo , 2017 ONCA 323 at para 25. In R. v. James , [2014] S.C.J. No. 5 , at paragraph 5 , Moldaver, J., speaking for the unanimous Supreme Court of Canada remarked that “…the trial judge failed to consider the compl...
Read more