Page 1

Indexed as:
R. v. Toten

Regina v. Toten

[1993] O.J. No. 1495

14 O.R. (3d) 225

63 O.A.C. 321

83 C.C.C. (3d) 5

16 C.R.R. (2d) 49

20 W.C.B. (2d) 234

Action No. C8185

Court of Appeal for Ontario,

Dubin C.J.O., Brooke,

Tarnopolsky, Arbour and Doherty JJ.A.

June 29, 1993

Counsel:

John Donohue, for appellant.

David Finley and Scott C. Hutchison, for the Crown, respondent.

The judgment of the court was delivered by

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DOHERTY J.A.:--

I. Overview

1 The appellant was convicted of sexual interference and sentenced to a jail term of six months to
be followed by probation for two years. He appeals his conviction and sentence.

2 The appellant challenges the constitutionality of s. 715.1 of the Criminal Code, R.S.C. 1985, c.
C-46. [Endnote 1] That section provides for the admissibility of videotaped statements made by
specified complainants in certain cases. The appellant also submits that the trial judge erred in
permitting the jury to view the videotape of the interview with the complainant, M.J., in the
jury-room during their deliberations. Finally, should the appeal from conviction fail, the appellant
contends that his sentence is excessive.

II. The Facts

3 M.J. was seven years old at the time of the alleged offence. She lived with her mother and two
sisters. Mrs. J. was casually acquainted with the appellant, who stayed at her home on the evenings
of April 5 and 6, 1990. During the evening of April 6, Mrs. J. and her brother went to a local bingo
hall, leaving the appellant in charge of the three girls. When Mrs. J. returned home, she went to
check on M.J. who was asleep in her bed. Mrs. J. noticed that her daughter was fully clothed but
that her pants were undone. She asked her daughter why her pants were undone. After talking to
M.J., Mrs. J. became very angry and confronted the appellant. A heated discussion ensued during
which the appellant denied that he had touched M.J. The appellant was told to leave the house and
he did so.

4 M.J. did not want her mother to call the police. However, on April 8, 1990, Mrs. J. called the
police who arranged to have M.J. examined at a local hospital. The examining physician noted that
the opening of her vagina was somewhat inflamed. The doctor said that the inflammation could
have been caused by rubbing or fondling of the vagina. He also said that betwetting could have
caused the irritation. M.J. had a history of bedwetting.

5 On April 9, 1990, Constable Bedard, the investigating officer, conducted a videotaped

interview with M.J. Using anatomically correct dolls, M.J. explained that "Peter" (the appellant) had
undone her pants and rubbed her "private" (vagina). She said that this had happened in the
livingroom while the appellant was babysitting her and her sisters. In the course of the interview,
M.J. said that she was asleep when the appellant touched her "private". The videotape of this
interview was admitted into evidence pursuant to s. 715.1 of the Criminal Code, over the objection
of counsel for the appellant. [Endnote 2] I will return to the videotaped statement at a subsequent
point in these reasons.

6 The appellant testified that he knew Mrs. J. casually and had visited her on April 5 and 6. He
 Page 3

said that he was alone with M.J. and her sisters on various occasions during those two days and that
he got along well with them. The appellant also indicated that he had agreed to babysit M.J. and her
sisters on the evening of April 6 so that Mrs. J. could drive her brother to the bingo hall. According
to the appellant, nothing unusual occurred during the evening and eventually he fell asleep on the
floor in the livingroom. At that time, M.J. was asleep on the couch in the same room. The appellant
testified that the next thing he knew, he was being beaten by Mrs. J., who was accusing him of
assaulting M.J. The appellant denied that he touched M.J. or assaulted her in any way. He said that
he had no idea why M.J. or her mother would make a false allegation against him. To his
knowledge, there was no animosity between him and either M.J. or her mother.

7 The appellant was co-operative with the police when he was arrested and gave an exculpatory
statement.

III. The Videotaped Interview

8 On the morning of April 9, 1990, about two-and-one-half days after the alleged assault,
Constable Bedard arranged to videotape an interview with M.J. In keeping with established police
protocol, he refrained from asking M.J. about the incident before the videotaped interview. He
wanted her first statements to him concerning the alleged assault to be made during the videotaped
interview.

9 Constable Bedard took M.J. and her mother to the offices of the Children's Aid Society in
Sarnia. He spoke with Ms. Cathy Hockin, a social worker employed by the Children's Aid Society,
and it was decided that Constable Bedard would ask M.J. the questions during the interview. After
briefly explaining to M.J. that they wished to ask her about the events that she had told her mother
about, Constable Bedard and Ms. Hockin took M.J. into the interview room.

10 The room was equipped with a table, chair and sofa. M.J. was wearing sweat pants and a
sweater, and was carrying a doll. The videotape camera was located outside the interview room and
filmed the interview through a one-way mirror. The camera did not move during the interview. The
filming began when Constable Bedard, Ms. Hockin and M.J. entered the interview room. Ms.
Hockin sat on the couch with M.J. She did not speak during the interview except for a brief
comment at the end of the interview. Constable Bedard sat on a chair beside the couch and asked
M.J. a number of questions. Their conversation was recorded by a device placed on the table in
front of M.J. Constable Bedard, Ms. Hockin and M.J. were "on camera" throughout the interview.

11 Constable Bedard began by asking M.J. whether she knew the difference between the truth
and a lie. He then told her he wanted to talk to her about the things she had told her mother. M.J.
went on to describe how she had been assaulted by the appellant. Constable Bedard then asked her a
series of questions. In the main, these questions were framed in a way which would be appropriate
during the examination-in-chief of a young child. The questions were somewhat repetitious,
although not overly so given the age of M.J. In the course of describing the events, M.J. used
anatomically correct dolls to describe what she meant when she referred to "dinky" and "private
 Page 4

parts". In addition to asking M.J. about the actual assault, Constable Bedard asked her what she had
told her mother afterwards. During this part of the interview, Constable Bedard told M.J. she was
"doing a good job remembering". After about 15 minutes, Constable Bedard indicated that the
interview was over. The videotaping continued for about another minute. During that minute,
Constable Bedard complimented M.J. on her memory and both Constable Bedard and Ms. Hockin
told M.J. she had done the right thing when she told her mother what had happened.

12 There is no question but that the videotape is an accurate and unaltered reproduction of the
interview between Constable Bedard and M.J. I would observe, however, that it was difficult to hear
some of the answers given by M.J. Constable Bedard apparently realized this difficulty as he
repeated her answers on a number of occasions.

13 The videotape was introduced into evidence during the examination-in-chief of M.J. The trial
judge had ruled that although M.J. could not be sworn, she was competent to testify upon promising
to tell the truth. The Crown then commenced her examination-in-chief. After a few introductory
questions, M.J. became upset, started to cry and was unable to respond to the questions. Crown
counsel then requested a voir dire to determine the admissibility of the videotaped interview. In the
course of the voir dire, M.J. watched the videotaped recording of the interview. She testified that
she could recall the interview, that her statements to Constable Bedard were true and that the events
she described to Constable Bedard had, in fact, happened.

14 After the videotape was ruled admissible, M.J. continued her testimony before the jury. Crown
counsel played the videotape before the jury. M.J. confirmed that what she had said to Constable
Bedard was the truth and that the events she had described in the interview had occurred. The
Crown did not attempt to have M.J. describe the assault during her examination-in-chief. M.J. was
then cross-examined about the assault and the contents of the videotape. The cross-examination was
brief but it does not appear from the transcript that counsel had any particular difficulty eliciting
responsive answers to his questions.

IV. Is s. 715.1 Unconstitutional?

(a) Overview of the appellant's arguments

15 The appellant [Endnote 3] submits that s. 715.1 infringes both ss. 7 and 11(d) of the Canadian
Charter of Rights and Freedoms and cannot be "saved" by s. 1 of the Charter.

16 Three broad propositions emerge from the appellant's submissions. First, he argues that it is a
principle of fundamental justice that any out-of-court statement made by a witness and offered by
the prosecution as proof of the truth of its contents must be shown to be reliable and its reception
into evidence must be shown to be necessary. He submits that as s. 715.1 requires no demonstration
of necessity, and fails to provide sufficient assurance of the reliability of the statement, it
contravenes that principle of fundamental justice. He goes on to submit that as the admission of
 Page 5

evidence through s. 715.1 may result in a conviction and potential imprisonment, its operation
infringes s. 7 of the Charter.

17 Second, he contends that even if s. 715.1 does not create a constitutionally flawed rule of
evidence, its operation so advantages the Crown and disadvantages the defence that the trial cannot
be said to be "a fair hearing" within the meaning of s. 11(d) of the Charter.

18 Last, the appellant submits that if either of the first two submissions is accepted, the Crown
has failed to establish that s. 715.1 is a reasonable limit on the appellant's constitutional rights which
is demonstrably justified in a free and democratic society.

19 These arguments have been considered by a number of trial courts with conflicting results.
[Endnote 4] In R. v. Laramee, [Endnote 5] the only appellate decision on point, the Manitoba Court
of Appeal unanimously held that the section was unconstitutional. Laramee is presently before the
Supreme Court of Canada.

(b) Interpreting s. 715.1

(i) The legislative purpose

20 Before addressing these constitutional arguments, it is necessary to determine the nature and
purpose of the evidentiary rule created by s. 715.1. [Endnote 6] Section 715.1 provides:

715.1 In any proceeding relating to an offence under section 151, 152, 153,
155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or
273, in which the complainant was under the age of eighteen years at the time the
offence is alleged to have been committed, a videotape made within a reasonable
time after the alleged offence, in which the complainant describes the acts
complained of, is admissible in evidence if the complainant, while testifying,
adopts the contents of the videotape.

21 In interpreting the section, I must be guided by its purpose: R. v. Paré, [1987] 2 S.C.R. 618 at
p. 626, 38 C.C.C. (3d) 97 at p. 103. In looking to the purpose for interpretive assistance, I am not
concerned with the merits of the legislation, or with weighing the social value of its purpose against
other state or individual interests. This is not a "reasonable limit" inquiry, like that carried out under
s. 1 of the Charter.

22 The purpose of a criminal trial, subject to due process and resource limitation considerations,
is to determine whether the allegation made against the accused can be proved to be true: [Endnote
7] Individual rules of evidence are directed to that same goal: Seaboyer, supra, note 7, at p. 609
S.C.R., p. 389 C.C.C. In the common law world, the accepted wisdom is that the truth will come out
through a public adversarial proces during which witnesses are required to tell their "story" through
answers to questions put to them by the competing parties. This procedure is followed whether the
witness is a mature experienced witness or a child testifying for the first time. The public
 Page 6

adversarial process is, however, a means to an end -- the ascertainment of truth -- and has virtue
only to the extent that it serves that end. Where the established process hinders the search for the
truth, it should be modified unless due process or resource based considerations preclude such
modification. [Endnote 8]

23 Recent studies and reports in Canada [Endnote 9] and elsewhere [Endnote 10] have described
the high incidence of criminal abuse and exploitation of young persons and have documented the
difficulties involved in detecting and prosecuting such crimes. Some of the difficulties are said to
arise because the traditional criminal law adjudicative model is not an effective means of discerning
the truth of such allegations. Many have argued that the procedures generally regarded as
safeguarding the reliability of the process actually impair its reliability in prosecutions involving
allegations of the abuse and exploitation of young persons. [Endnote 11] Virtually every committee
or commission that has recently studied the operation of the criminal process as it relates to
allegations of abuse or exploitation of young persons, has recommended some modification of the
traditional adversarial model. [Endnote 12]

24 One of the barriers to effective truth-finding posed by the established procedure stems from
the specific difficulties which young complainants encounter in attempting to provide a full and
accurate account of the relevant events while testifying before the trier of fact. Three problems with
the in-court evidence of young complainants are repeatedly identified in the recent literature.
[Endnote 13] Firstly, the trial inevitably takes place several months or longer after the relevant
events. [Endnote 14] With the passage of time, young persons are more inclined to forget the details
of prior events than are adults. [Endnote 15]

25 Secondly, most young complainants are questioned about the relevant events several times by
various persons before they eventually testify at trial. The questioners may intentionally or
inadvertently make suggestions to the complainant concerning those events. Young complainants,
particularly children, are susceptible to such suggestions when they come from persons the
complainant identifies as a friend, authority figure, or supporter. By the time the complainant
testifies, his or her evidence may have been contaminated by these suggestive questions to the point
that the complainant cannot distinguish between what he or she actually remembers and what has
been suggested to him or her during the questioning process. [Endnote 16]

26 Thirdly, the actual trial setting and procedures can confuse and intimidate or, worse yet,
traumatize the complainant. As a result, the complainant may have difficulty remembering or
recounting in a coherent and complete way the events as he or she believes them to have occurred.
[Endnote 17]

27 Several jurisdictions have accepted the validity of these observations and enacted various
legislative measures designed to overcome these perceived difficulties. [Endnote 18] Most have
provided for the admission of a statement or deposition given by the young complainant prior to
trial. [Endnote 19] Many require that the prior statement be videotaped. [Endnote 20]
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28 Section 715.1 signals Parliament's conclusion that the truth- finding function of the trial is
enhanced by admitting statements which conform with the requirements of s. 715.1. [Endnote 21]
The statements contemplated by s. 715.1 will be made at a time close to the events which are the
subject of the allegation and usually before the complainant has been subjected to repeated
questioning. The statements will also be made in an atmosphere which is less intimidating than the
formal courtroom setting. Moreover, the use of videotape comes as close as possible to placing the
trier of fact at the interview.

29 Section 715.1 does not remove the requirement that the complainant testify. [Endnote 22] The
statement is admitted only where the complainant testifies. The trier of fact will consider both the
statement and the in-court testimony of the complainant in attempting to discern the complainant's
version of events. Section 715.1 is premised on the conclusion that the trier of fact will be better
equipped to determine the complainant's version of events and the reliability of that version if the
trier of fact hears and sees both the in-court testimony and the videotaped statement.

30 The purpose of s. 715.1 is therefore to assist the trier of fact in obtaining a full and candid
account of the acts complained of by the complainant. [Endnote 23] In this regard, s. 715.1 shares
the same purpose as its companion section, s. 486(2.1) and the recently developed approach to the
admissibility of out-of-court complaints of abuse made by young complainants and offered as
evidence through the testimony of the recipient of the complaint. [Endnote 24]

31 As the preceding indicates, I do not agree that s. 715.1 is intended to protect the young
complainant from the trauma associated with testifying in a public forum and in the presence of the
accused. [Endnote 25] Indeed, s. 715.1 has been criticized because it fails to provide that protection.
[Endnote 26] Hopefully, s. 715.1 does minimize the trauma experienced by some young
complainants who must testify about personal and painful events. However, to the extent that it
does, that result is a beneficial by-product of the provision, but not its purpose. [Endnote 27]

32 The comments made by Professor Spencer, regarding proposed English legislation [Endnote
28] admitting videotaped statements by young complainants, applies with equal force to s. 715.1:

The Courts are not concerned with protecting witnesses, or defendants, or

anyone, except as something secondary to their main purpose, which is
discovering the truth in order to do justice. The real purpose why we need the
prosecution to be able to put videotapes of earlier interviews in evidence is that
they are capable of giving the court what is likely to be a fuller and more reliable
account of what happened than it is otherwise able to hear. The interval between
the trial and the incident first coming to light will be several months at least,
maybe many months. If we know two things about human memory, and the
memory of children in particular, one is that it fades with time, and the other is
that stress impairs recall. For justice to be done -- to the innocent as well as the
guilty -- it is essential that the court should have before it the most accurate
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account possible of what the child said about the incident at the earliest moment,
before time wiped certain details out of its mind and questioning by adults
implanted others. The account is likely to be an interview preserved on
videotape. [Endnote 29]

(Emphasis added)

(ii) Charter values and the interpretive process

33 The purpose behind the legislation is not the only interpretive aid which assists in giving
meaning to s. 715.1. The interpretive exercise must also be guided by the principles and values
which underlie the Charter. If statutory language is capable of more than one meaning, the
interpretation which embodies and fosters Charter-based values must be preferred: R. v. Nova
Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at p. 660, 74 C.C.C. (3d) 289 at p. 326; R. v.
Finta (1992), 73 C.C.C. (3d) 65 at p. 176, 9 C.R.R. (2d) 91 (Ont. C.A.), on appeal to S.C.C.
Adjudicative fairness concerns enshrined in both ss. 7 and 11(d) of the Charter figure prominently
when statutory evidentiary provisions are interpreted by the courts. [Endnote 30] I will return to
these concerns when I address the scope of the discretion provided for in s. 715.1.

(iii) Interpretive analysis

34 I turn now to the language of s. 715.1. For convenience, I will repeat it.

715.1 In any proceeding relating to an offence under section 151, 152, 153,
155 or 159, subsection 160(2) or (3), or section 170, 171, 172, 173, 271, 272 or
273, in which the complainant was under the age of eighteen years at the time the
offence is alleged to have been committed, a videotape made within a reasonable
time after the alleged offence, in which the complainant describes the acts
complained of, is admissible in evidence if the complainant, while testifying,
adopts the contents of the videotape.

35 The section provides that the statement of the complainant is "admissible in evidence" if:

(i) the offence charged is one of the enumerated offences;

(ii) the complainant was under 18 years of age at the time the alleged offence
occurred;

(iii) the statement is in the form of a videotape;

(iv) the videotape was made within a reasonable time after the alleged offence;
(v) the videotape "describes the acts complained of"; and
 Page 9

(vi) the complainant, during his or her testimony, "adopts the contents of the
videotape".

36 Section 715.1 does not expressly refer to the purpose for which the videotaped statement is
admitted. Prior statements made by witnesses may be admitted for the purpose of assessing their
credibility or for that purpose and as evidence of the truth of their contents. [Endnote 31] This
appeal was argued on the basis that the videotaped statement is admissible as evidence of the truth
of the facts alleged in the statement as well as to assist in assessing the credibility of the
complainant. The analysis in Laramee proceeded on the same basis. In R. v. Meddoui [Endnote 32]
the court specifically addressed the purpose for which the statement was admitted and concluded
that it was admissible to prove the truth of its contents. I agree with the reasoning and conclusion in
Meddoui. I would add that if the statement was only admissible to support the credibility of the
complainant, there would be no need for the complainant to refer to the statement in his or her
testimony, much less adopt it as true: R. v. Timm, [1981] 2 S.C.R. 315 at pp. 324-34, 59 C.C.C.
(2d) 396 at pp. 404-14.

37 As the section indicates, the complainant must "adopt" the statement "while testifying". The
determination of whether the complainant adopts all or any part of the statement must be made by
the trier of fact. [Endnote 33] The trial judge must, however, as a condition of admissibility, satisfy
herself that there is an evidentiary basis on which the trier of fact could conclude that the
complainant adopted the statement. [Endnote 34]

38 The adoption of out-of-court statements by witnesses during their testimony occurs most
commonly when a witness is confronted in cross-examination with a prior inconsistent statement. If
the witness acknowledges making the statement, the witness may be asked whether the prior
statement is true. If the witness testifies that the prior statement is true, the witness is said to have
adopted the prior statement. Where a witness adopts a prior statement as true, the witness
incorporates that statement into his or her evidence at trial so as to make the prior statement part of
the trial testimony: R. v. Deacon, [1947] S.C.R. 531 at p. 534, 89 C.C.C. 1 at p. 4. To incorporate
the prior testimony, the witness must be able to attest to the accuracy of the prior statement based on
the witness' present memory of the facts referred to in that statement. In this sense, adoption refers
to both the witness' acknowledgement that he or she made the prior statement and the witness'
assertion that his or her memory while testifying accords with the contents of the prior statement: R.
v. Atikian (1990), 1 O.R. (3d) 263 (C.A.) at p. 268, 62 C.C.C. (3d) 357 at p. 364, 3 C.R. (4th) 77 at
p. 83; R. v. Smith (1985), 66 A.R. 195 (C.A.) at p. 200.

39 The word "adopts" in s. 715.1 was held to have this well- established meaning by Fraser J. in
R. v. Keller, supra, note 4, at pp. 7-8, and I would have no hesitation in applying that same meaning
without further analysis but for the different view expressed in Meddoui, supra. In Meddoui, the
court held that a complainant could adopt the videotaped statement even if he or she had no
recollection of the events referred to in the statement while testifying. Kerans J.A., for the court,
drawing on the past recollection recorded doctrine, held that the videotaped statement was adopted
 Page 10

as long as the complainant could testify that he or she recalled making the statement and had
endeavoured to tell the truth when making the statement. [Endnote 35]

40 The distinction between the meaning attributed to the word "adoption" in Meddoui and the
more customary meaning applied in Keller affects the admissibility of the videotaped statement in
only one situation. If the complainant can recall making the statement shortly after the events, but
when testifying, cannot recall the events, Meddoui would admit the statement, while Keller would
exclude it. In my opinion, it would be a rare case where the complainant could recall making the
statement about the alleged assault, but not the actual assault which occurred shortly before the
making of the statement. I say it would be a rare case because the events referred to in the statement
are hardly of the routine sort which could be expected to pass from one's memory although a
recollection of recording those events remained.

41 I cannot agree, however, that a witness who has no recollection of the events referred to in a
prior statement can be said to adopt that statement. The witness may be able to vouch for the
accuracy of the statement based on circumstances surrounding the making of it, but he or she cannot
speak directly to the truth of the statement based on a present recollection of the events described in
the statement.

42 Voucher is qualitatively different from adoption. In the case of voucher, the value of the
witness' testimony relating to the statement depends on the extent to which the witness (and perhaps
others) can satisfy the trier of fact that the circumstances surrounding the statement establish its
trustworthiness. Where the adoptive process is engaged, the witness speaks directly to the truth of
the statement based on a present memory of the events referred to in the statement. The evidentiary
value of the adopted statement turns primarily on an evaluation of the reliability of the witness'
stated present memory of the relevant events.

43 An out-of-court statement, tendered on the basis that a witness can vouch for its accuracy,
raises hearsay concerns in that the witness is unable, when testifying, to address directly the events
referred to in the statement. An out-of- court statement adopted by a witness becomes part of the
witness' in-court account of his or her present memory of events and does not raise hearsay
concerns. [Endnote 36]

44 In my view, the concepts of adoption and voucher, as applied to previous statements by

witnesses, are different and the former cannot encompass the latter. By using the word "adopts",
Parliament intended that the complainant be able to verify the accuracy of the contents of the
videotaped statement, from his or her memory of the relevant events, and be subject to cross-
examination on that present memory of the events. If the complainant has only to vouch for the
accuracy of the videotaped statement, there would be instances where the complainant could not be
cross-examined about the actual events because he or she had no memory of those events. Such
out-of- court statements may be admissible in certain circumstances, but their admissibility turns on
considerations which do not relate to the adoption of an out-of-court statement by a witness.
 Page 11

[Endnote 37]

45 In Meddoui, two reasons were advanced for rejecting the usual meaning of adoption in favour
of one which did not require that the witness recall the events referred to in the statement. It was
said that if the usual meaning of "adopts" was applied in s. 715.1, the rule against the admission of
prior consistent statements would be infringed, and the trier of fact would be required to hear
evidence made redundant by the complainant's in-court testimony.

46 I acknowledge that the meaning of the word "adopts", which I favour, results in the admission
of a prior consistent statement made by the complainant. The common law generally excludes prior
consistent statements made by witnesses because they lack probative value and unnecessarily
expand the scope of the trial. [Endnote 38] There are, however, a number of judge-made exceptions
to the common law rule. [Endnote 39]

47 I do not regard a conflict with an existing common law rule of evidence as a reason to depart
from the generally accepted meaning of adoption in the interpretation of s. 715.1. It is to be
expected that a new statutory provision, declaring evidence admissible, will override or modify
some existing rule of evidence. Otherwise, there would be no need for the statutory provision. No
matter how the word "adopts" is defined in s. 715.1, some change in the existing rules of evidence
follows. Meddoui would modify the exception to the hearsay rule based on past recollection
recorded. I would recognize s. 715.1 as a further principled exception to the general rule prohibiting
evidence of prior consistent statements. A preference for one modification over the other does not
assist in defining the word "adopts" in s. 715.1.

48 Section 715.1 fits comfortably within the principle underlying judge-made exceptions to the
rule excluding prior consistent statements. As indicated above, it is generally not helpful to know
that a witness at some earlier point said the same thing that the witness now says while giving
evidence. These statements provide little or no assistance in assessing credibility, absent an
allegation of fabrication at some point after the prior statement was made. They are superfluous in
so far as they are regarded as evidence of the truth of their contents since the witness has given the
same evidence in the course of his or her in-court testimony. Not only do such statements add little
to the factual inquiry, they can expand the scope of the trial with inquiries into the circumstances
and specifics of those prior statements.

49 Judges have created exceptions to the rule against the admissibility of prior consistent
statements where, due to the nature of the issue to which the statement is directed [Endnote 40] the
circumstances in which it was made, [Endnote 41] or the position taken by the opposing party at
trial, [Endnote 42] the prior consistent statement is regarded as sufficiently significant to the factual
inquiry to warrant its admission.

50 The admission of prior consistent statements, referable to the identification of an accused by a

witness, provides a good example of a judge-made exception to the rule against prior consistent
statements. Judges have long recognized that an in-court identification has little probative value.
 Page 12

Consequently, they admitted prior out-of-court statements made by witnesses which were consistent
with their in-court identification. These earlier statements are admitted for the truth of their
contents, to assist the jury in determining whether the accused was identified by the witness, and to
assist in assessing the weight to be given to that identification. [Endnote 43]

51 Section 715.1 is premised on a parliamentary assessment not unlike that made by the judiciary
in cases involving the admission of prior consistent statements going to the identification of an
accused. As with in-court identification evidence, the in-court evidence of young complainants in
certain kinds of cases, standing alone may not reveal the most complete and accurate account that
the witness is capable of providing. Section 715.1 permits resort to the prior consistent statements
made by the complainant to assist the jury in determining the complainant's version of the relevant
events and the reliability of the complainant's in-court testimony.

52 I also cannot agree that because the complainant can adopt the videotaped statement based on
a present recollection of the events, that the admission of the videotaped statement "adds nothing to
the testimony" and requires the trier of fact "to hear the same evidence twice": R. v. Meddoui,
supra, note 32, at pp. 356 and 357 C.C.C., pp. 327 and 328 C.R. A young witness may have
considerable difficulty, in the adversarial setting of the courtroom, verbalizing his or her memory of
events. This may be so, even where the witness is able to adopt the statement in the traditional
sense. In such cases, the videotape may add a great deal to the complainant's testimony. Even where
the witness can remember the events and effectively verbalize that recollection, the videotaped
statement may communicate additional information to the trier of fact which could assist in
determining the truth of the allegation. People, and perhaps particularly young persons,
communicate both verbally and non-verbally. The phraseology used and the mannerisms shown in
the videotaped statement may well provide insights which would be lost if the videotape was not
seen by the trier of fact. The prior statement, combined with the complainant's in-court evidence,
may well afford a more complete version of the complainant's evidence. While there may doubtless
be some repetition of the complainant's evidence (hardly an unheard of occurrence in a trial), I
cannot agree that the videotaped statement serves no purpose if the complainant is able to recall the
actual events and articulate them on the witness stand.

53 In summary, the adoption requirement built into s. 715.1 requires that the trial judge be
satisfied on a voir dire that there is a basis upon which the trier of fact could be satisfied:

-- that the complainant acknowledges making the statement; and -- that the
complainant is able, based on a present memory of the events referred to in the
statement, to verify the accuracy of the contents of the statement.

54 In this case, those criteria were established with respect to the entire statement by the
testimony of the complainant on the voir dire. In some cases, it may be that the complainant will
have no memory of certain events referred to in the statement. If those parts of the statement are
prejudicial to the accused, the trier of fact will have to determine whether the tape can be edited as
 Page 13

described below. If editing is not possible, the trial judge will have to consider whether he or she
should exercise her discretion (also referred to below) and exclude the videotaped statement.

55 Adoption is not the only precondition to admissibility found in s. 715.1. Even where the
videotaped statement is adopted by the complainant, it is admissible only to the extent that it
"describes the act complained of". References to other acts not encompassed by the indictment,
[Endnote 44] or to conversations [Endnote 45] which do not form part of the "acts complained of"
are not admissible. Care must be taken, when making the videotape, to ensure that this limitation is
honoured. The inclusion of questions that elicit information which may have investigative or
therapeutic value but which does not "describe the acts complained of" may, if effective and fair
editing is not possible, necessitate the exclusion of the entire statement.

56 Section 715.1 is also limited by other generally applicable rules of evidence. The section does
not trump all other rules but must take its place alongside those rules and procedures. Assertions
made in a videotaped statement which would not be admissible if made by the complainant during
his or her in-court testimony do not become admissible merely because they were made in the
course of a videotaped statement. [Endnote 46] Adoption is limited to that which the witness would
be permitted to testify to in the course of giving evidence. A comment made by a complainant in the
videotaped statement that would be inadmissible hearsay, if made during in-court testimony,
remains inadmissible. Similarly, references in the videotaped statement to evidence which would
constitute inadmissible bad character evidence, if given at trial, would not be rendered admissible
through the medium of the videotaped statement. [Endnote 47] In the same vein, the videotaped
statements introduced pursuant to s. 715.1 must meet the established requirements relating to
authenticity and accuracy.

57 The admissibility of statements tendered under s. 715.1 is also subject to other generally
applicable forms of judicial control over the admission of evidence. Judges have always had the
power to edit statements and other forms of testimonial evidence, to avoid prejudice and
irrelevancies, where the editing process can be effected without distorting the nature of the evidence
adduced. That authority flows, not from any statute, but from the judge's general power to control
the proceedings: McWilliams, Canadian Criminal Evidence, 3rd. ed. (1993), at p. 15-87; Report of
the Federal/Provincial Task Force on Uniform Rules of Evidence, supra, note 36, at p. 195; R. v.
Dubois (1986), 27 C.C.C. (3d) 325, 13 O.A.C. 342 (C.A.). Nothing in the language of s. 715.1
derogates from that overriding authority. [Endnote 48]

58 Reference to the supervisory authority of the trial judge leads to a further consideration. Does
the trial judge have a discretion to exclude a videotaped statement which complies with the
requirements of s. 715.1? The section makes no specific reference to such discretion. In Laramee,
Helper J.A., speaking for a majority, held that

The legislation, therefore, precludes the exercise of any

real judicial discretion. It instead provides for the
 Page 14

mechanical application of the legislation. . . . . .

To accept the Crown's submission that there remains an inherent jurisdiction in

the trial judge to exclude testimony unfair to the accused would undermine the
objective of s. 715.1. [Endnote 49]

59 Like Helper J.A., I find the judgments of the Supreme Court of Canada in Corbett, supra, note
30, and Potvin, supra, note 30, pertinent to this aspect of the interpretation of s. 715.1. However,
those cases lead me to the opposite conclusion.

60 Judicial discretion to exclude, on policy grounds, evidence which is relevant and, hence, prima
facie receivable, is one of the organizing principles of our law of evidence. Adjudicative fairness is
one policy head which motivates the exercise of that discretion: R. v. Corbett, supra, note 30, per
Dickson C.J.C. at pp. 697-98 S.C.R., pp. 404-05 C.C.C., per La Forest J. (dissenting in the result) at
pp. 713-15 and 736-40 S.C.R., pp. 416-17 and 433-35 C.C.C. If, upon a prejudicial effect versus
probative force analysis, the trial judge determines that the receipt of otherwise relevant evidence
would have a negative effect on the truth-finding function of the trial, that evidence will be
excluded. At one time, the discretion to exclude on this basis was framed narrowly and required that
the evidence be "gravely prejudicial" and have only "trifling" probative value: R. v. Wray, [1971]
S.C.R. 272 at pp. 292-93, [1970] 4 C.C.C. 1 at pp. 16-17. It is now recognized, however, that a trial
judge must balance prejudicial effect against probative force and exclude the evidence where the
prejudice to the trial process clearly outweighs its value: R. v. Seaboyer; R. v. Gayme, supra, note 7,
at pp. 511-12 S.C.R., pp. 391-92 C.C.C.

61 In this context, prejudice refers, among other things, to any unfairness to the accused
occasioned by the admission of the evidence. For example, the evidence might provoke such an
emotional response that it imperils the trier of fact's ability to reach a verdict on an objective and
dispassionate review of the evidence. If so, the evidence must be regarded as prejudicial in the
present sense of the word. Similarly, there may be a danger that the trier of fact could, despite
directions to the contrary, use the evidence to infer guilt through some legally forbidden line of
reasoning. This danger must be placed on the prejudice side of the scale when balancing prejudice
against probative value. Prejudice to the accused would also exist where the accused does not have
an adequate opportunity to challenge the evidence adduced by the Crown. For instance, the Crown
might produce a videotaped statement and the complainant might purport to adopt it, but it may
prove totally impossible to conduct any kind of meaningful cross-examination of the complainant.
In such a case, there would be awear prejudice to the accused were the statement to be admitted.
[Endnote 50]

62 The discretion described above is not a creature of statute but is interwoven by the common
law throughout the fabric of the law of evidence: R. v. Corbett, supra, note 30, per La Forest J.
(dissenting in the result) at pp. 729-31 S.C.C., pp. 428-29 C.C.C. Indeed, that discretion is
 Page 15

constitutionally enshrined within s. 7 of the Charter as a principle of fundamental justice: R. v.

Seaboyer; R. v. Gayme, supra, note 7, at p. 611 S.C.R., p. 391 C.C.C.

63 Nothing in the language of s. 715.1 is inconsistent with the application of this exclusionary
principle to evidence which meets the requirements of s. 715.1. As with s. 715.1 of the Criminal
Code, s. 715.1 is merely a statutory vehicle through which either party may tender a certain kind of
evidence: R. v. Potvin, supra, note 30 (per La Forest J. concurring), at p. 531 S.C.C., p. 314 C.C.C.
Section 715.1 does not, and could not (subject to s. 1 of the Charter) detract from the trial judge's
obligation to exclude otherwise admissible evidence where he or she concludes that the prejudicial
effect of the evidence clearly outweighs its probative value.

64 A purposive analysis of s. 715.1 lends further support to the existence of a discretion within
the section to exclude evidence, even when it meets the requirements of the section. Section 715.1 is
intended to enhance the truth-finding function of the trial. Admission of evidence which does not
serve that purpose, or runs contrary to it, does not further the purpose of the section. A discretion to
exclude videotaped statements which cannot enhance the quality of the factual inquiry limits the
evidentiary access provided by the section to situations where the purpose of the section is served.

65 For example, if, on a voir dire it is shown that the statement was carefully scripted and
rehearsed, or thatawhe questioning of the complainant was so suggestive as to render the videotape
of little or no value in eliciting the complainant's version of events, then, in my view, the trial judge
could exclude the videotaped statement. There may also be cases where the technical quality of the
videotape is so poor that the trier of fact would be left to speculate about exactly what the
complainant said on the videotape. In that situation, a trial judge may well conclude that the
admission of the tape would detract from, rather than enhance, the truth-finding process.

66 In cases like the examples referred to above, the trial judge could exclude the videotape, either
by the exercise of the common law discretion to exclude, or pursuant to the discretion implied in s.
715.1 to exclude evidence which is counterproductive to the purpose of the section.

67 The discretion to exclude evidence cannot, however, swallow the inclusionary rule created by
the statute. In referring to the discretion to exclude evidence which was prima facie admissible
under s. 715 (formerly s. 643), Wilson J., in Potvin, supra, note 30, at pp. 547-48 S.C.R., pp. 304-05
C.C.C., said:

I believe [s. 643] confers on him or her a discretion not to allow the previous
testimony to be admitted in circumstances where its admission would operate
unfairly to the accused. I hasten to add, however, that such circumstances will be
relatively rare and that the discretion to prevent unfairness is not a blanket
authority to undermine the object of s. 643(1) by excluding evidence of previous
testimony as a matter of course.

68 Similarly with respect to s. 715.1, the trial judge must guard against using his or her
 Page 16

discretionary power to decide what are, in reality, questions of weight for the trier of fact. In many
cases, there will be a substantial dispute as to the extent to which the videotaped statement can be
said to assist the trier of fact in gaining a full and frank account of the complainant's version of
events. Save in the most extreme cases, where the trial judge is satisfied that the statement cannot
assist or, worse yet, would interfere with the truth-finding process, the statement should be
admitted. It can be left to the defence, no doubt armed with full disclosure of all facts relevant to the
making of the videotaped statement (R. v. Stinchcombe, [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1) to
convince the trier of fact that the statement has little or no evidentiary value.

69 In my opinion s. 715.1, like the evidentiary provisions considered in Potvin and Corbett, does
not preclude the exercise of judicial discretion to exclude evidence where the demands of
adjudicative fairness require exclusion. Furthermore, a purposive interpretation of the section
reveals a discretion within the statute to exclude evidence which does not serve the purpose of the
statute. Those discretions are cumulative, and, in large measure, overlapping.

(c) Constitutional analysis

70 Having interpreted s. 715.1, I return to the constitutional complaints made by the appellants.
The appellants rely on ss. 7 and 11(d) of the Charter. They provide:

7. Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of
fundamental
justice. . . . . .

11. Any person charged with an offence has the right . . . . .

(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial
tribunal;
(i) The s. 7 argument

71 As outlined earlier, the s. 7 argument made by the appellant (and A. but not L.) rests on the
submission that s. 715.1 creates an inclusionary rule permitting the Crown to lead evidence that fails
to meet certain minimum standards. Those standards are drawn from the necessity/reliability
analysis governing the common law admissibility of hearsay evidence. [Endnote 51]

72 According to this submission, statements received under s. 715.1 are inherently inferior to the
in-court testimony of the complainant and meet neither the standards of necessity nor reliability
needed to justify the reception of such inherently inferior evidence. It is contended that by receiving
statements which are inherently inferior to in-court testimony and which do not meet the
necessity/reliability criteria, the section offends the principles of fundamental justice.
 Page 17

73 This submission rests on three bases:

(1) statements admitted under s. 715.1 are hearsay;

(2) the necessity/reliability criteria constitute a constitutional standard against which
statutory exceptions to the hearsay rule must be measured; and
(3) statements admitted under s. 715.1 fail the necessity/ reliability test. [Endnote 52]

74 The interpretation I place on s. 715.1, and in particular the meaning I give to the requirement
that the witness adopt the statement while testifying, effectively rejects the primary basis upon
which this submission rests. Once the statement is adopted by the witness, it becomes part of that
witness' in-court testimony. The witness' evidence consists of the adopted statement, and any
additional testimony the witness gives.

75 In taking the position that the out-of-court statement is not hearsay, I do not rely solely on the
prior characterization in our evidence law of adopted statements as non-hearsay (supra, note 36).
Statements admitted under s. 715.1 do not have the dangers inherent in true hearsay evidence.
[Endnote 53] The declarant can be cross-examined both with respect to the statement and the events
in issue. The adoption of the statement while testifying gives that statement the force of the oath or
legal equivalent taken by the witness at the outset of his or her testimony. The trier of fact is also
able to see and hear the complainant both as he or she made the out-of-court statement and as he or
she testifies before them. Those observations will be considered in assessing the value of both the
out-of-court statement and the in-court testimony. Finally, the use of videotape virtually ensures the
accuracy of the version of the prior statement which is put before the trier of fact. [Endnote 54] I
can see no reason to require circumstances of necessity or circumstantial indicators of reliability as
prerequisites to the admission of evidence which does not carry the dangers inherent in the
admission of hearsay evidence. [Endnote 55]

76 My conclusion that the videotaped statements are not hearsay, and do not bring with their
admission the shortcomings inherent in hearsay evidence, renders it unnecessary to decide whether
the necessity/reliability analysis is appropriate in the context of judicial review of the
constitutionality of a statutory provision admitting hearsay evidence. [Endnote 56] I also need not
consider whether videotaped statements admitted under s. 715.1 meet the necessity/reliability
criteria. [Endnote 57]

77 Counsel for A. advanced a variation on the theme that statements admitted under s. 715.1
violate minimum constitutional standards and thereby infringe s. 7 of the Charter. He submitted that
the common law "rule" against the admission of prior consistent statements is a free-standing
principle of fundamental justice and that since s. 715.1 contravenes that "rule", it violates s. 7. I say
immediately that I do not read s. 7 of the Charter as constitutionalizing specific rules of evidence.
The fundamental principles which inspire those rules may be accorded that status.

78 A review of the contemporary literature referable to the present common law position with
respect to prior consistent statements makes it difficult to describe that position as a principle of
 Page 18

fundamental justice or one of the basic tenets of our judicial system. The Law Reform Commission
of Canada has recommended that such statements should be admissible, subject to a discretion to
exclude where the admission could cause prejudice, confusion, or undue consumption of court
resources. [Endnote 58] Reformers in the United States made similar recommendations. [Endnote
59]

79 In my opinion, the common law position which generally rejects evidence of a prior consistent
statement made by a witness is not founded on any principle unique to prior consistent statements,
but on the very practical assessment that generally speaking such evidence will not provide
sufficient assistance to the trier of fact to warrant its admission. The common law starts from the
premise that evidence of prior consistent statements made by witnesses is, at worst, irrelevant and,
at best, superfluous. Where, however, circumstances render evidence of prior consistent statements
of potential significance to the trier of fact, either with respect to the credibility of the
declarant/witness or with respect to a fact in issue, the common law admits those statements.
[Endnote 60]

80 The debate between those who favour the orthodox common law position, and those who
favour a rule of general admissibility, reveals no disagreement with respect to fundamental
principles but only different starting points in the same inquiry. The common law begins with an
assumption of inadmissibility subject to a demonstration of sufficient probative value to warrant
admissibility. The Law Reform Commission, and like-minded reformers, start from a rule of
admissibility subject to exclusion where considerations relating to probative value, prejudicial effect
and use of court resources warrant exclusion. Both approaches yield the same result, evidence of
prior consistent statements made by witnesses will be admitted where their potential value to the
trier of fact merits their admission.

81 Parliament's adoption of the position favoured by the Law Reform Commission in relation to
prior consistent statements which meet the requirements of s. 715.1 does not, in my opinion,
contravene any principle of fundamental justice. To the contrary, it seems more consistent than does
the common law position with the flexible and more inclusive approach taken to admissibility in
recent pronouncements by the Supreme Court of Canada: see the comments in R. v. Khan, supra,
note 37, at p. 543 S.C.R., p. 102 C.C.C.; R. v. Corbett, supra, note 30, per Dickson C.J.C. at p. 697
S.C.R., p. 404 C.C.C.; R. v. Seaboyer; R. v. Gayme, supra, note 7, per McLachlin J. at pp. 621-22
S.C.R., pp. 398-99 C.C.C.; R. v. B. (K.G.), supra, note 37, at p. 776 S.C.R., p. 280 C.C.C.; R. v.
Smith, supra, note 37, at p. 932 S.C.R., p. 270 C.C.C. In this regard, it must also be stressed that the
trial judge maintains the discretion described above to exclude statements which meet the criteria
set down by s. 715.1.

(ii) Section 11(d) of the Charter

82 The arguments advanced above focus on the quality of the evidence received through s. 715.1
and rely principally on s. 7 although s. 11(d) is also called in aid by the appellant. The submissions
 Page 19

which rely exclusively on s. 11(d) shift the focus to the effect of the admission of the videotaped
statements on the fairness of the trial process. The appellant argues that the admission of the
statements impacts negatively in several ways on the conduct of the trial. I will address each
argument separately, bearing in mind the appellant's correct caution that it is the cumulative effect
of the admission of the statements which must be considered in determining whether s. 11(d) has
been infringed.

83 Before addressing the specific submissions made by the appellant, brief reference to the nature
of the fair trial right created by s. 11(d) is necessary. The right is obviously concerned with the
effect of any particular rule on the overall treatment of the accused in the trial process. Where the
particular rule in issue is directed to the admission of evidence which may be used against an
accused, unfairness to the accused may flow from the potential for misuse of the evidence by the
trier of fact, or from the negative impact of admitting the evidence on some other protected interest
of the accused's (e.g., privacy), or from the absence of an adequate opportunity to effectively
prepare to challenge and contradict the evidence admitted under the rule in issue: R. v. Albright,
[1987] 2 S.C.R. 383 at pp. 395-96, 37 C.C.C. (3d) 105 at p. 114. This case engages the first and
third of those prejudice concerns.

84 The interests of the accused are not, however, the only vantage point from which fairness must
be assessed. In Corbett, La Forest J. said:

But "fairness" implies, and in my view demands, consideration also of the

interests of the state as representing the public. [Endnote 61]

85 A statutory provision which places relevant potentially probative material before the trier of
fact has the capacity to enhance the accuracy of the truth-finding function of the trial process. In
doing so, it promotes legitimate public fairness concerns. Section 715.1 has that potential. Whether,
despite that potential, it infringes s. 11(d) will depend on whether it maintains an appropriate
balance between societal fair trial concerns and the accused's individual fair trial concerns.

86 One further general observation is necessary. Many of the appellant's submissions referable to
the alleged unfairness created by s. 715.1 do not arise from the terms of the section but rather from
the potential abuse of the section by the prosecution. For example, the appellant refers to the
possibility that the complainant will be carefully coached before giving the videotaped statement, or
the possibility that the statement will be a carefully orchestrated "hollywood production" designed
to arouse the sympathy of the trier of fact. [Endnote 62]

87 One cannot assess the constitutionality of s. 715.1 by reference to its potential abuse by those
who seek to invoke it. [Endnote 63] If potential for misuse is the test of constitutionality, virtually
no rule of evidence could survive. Almost any kind of evidence can be manufactured or otherwise
distorted by the party proffering that evidence. [Endnote 64]

88 Concerns referable to the potential misuse of s. 715.1 must be dealt with on a case-by-case
 Page 20

basis. The accused is entitled to explore all circumstances surrounding the making of the videotaped
statements. If the accused can demonstrate conduct which amounts to a violation of his or her
constitutional rights, s. 24 permits the trial judge to fashion an appropriate remedy. Even if the
conduct surrounding the making of the videotaped statement does not violate any constitutional
right of the accused, the discretion to exclude the evidence, even where it meets the requirements of
s. 715.1, provides ample protection to an accused.

89 I can now address the specific complaints of unfairness made by the appellant. He submits that
s. 715.1 does not adequately protect against videotapes which are not an authentic or complete
reproduction of the interview with the complainant. Video and audio tapes are now commonly
adduced in criminal proceedings. The party tendering such evidence must establish the accuracy
and authenticity of the tapes in accordance with well-established common law principles: Sopinka,
The Law of Evidence in Canada, supra, note 38, at pp. 16-18. Those principles apply to videotapes
tendered under s. 715.1. I can see nothing inherent in videotapes tendered under that section which
would require additional measures to ensure accuracy or authenticity. If the three cases before this
court are any indication, accuracy or authenticity will seldom be an issue.

90 The appellant next argues that the section does not provide adequate protection against
videotaped statements which contain material that is not properly admissible. This submission is
completely answered by reference to the limitation imposed by the section. The videotape must only
describe the "acts complained of". Clearly, that description is relevant. The power to edit videotaped
statements and the application of common law rules pertaining to in-court testimony by
complainants to the contents of videotaped statements also guard against the inclusion of irrelevant
and inadmissible material in the videotapes. These protections, combined with the discretion to
exclude the videotape where its prejudicial effect clearly outweighs any probative value, provide
adequate protection.

91 The appellant also takes issue with the category of complainants to whom the section applies.
He points out that the section may apply to a complainant who is over 18 years of age at the time he
or she testifies. [Endnote 65] He submits that such persons are sufficiently mature to negate any
presumption that they suffer from the difficulties which prompted the legislation.

92 Section 715.1 does set a higher age qualification than those found in similar legislation in
other jurisdictions. [Endnote 66] It must be conceded that at the extreme end of the age
qualification, the videotaped statement may have minimum probative value in that it will add very
little to the in-court evidence of the complainant. If such a case arises, a correspondingly low level
of prejudice would warrant the exclusion of the evidence. The section also vests the trial judge with
a discretion to exclude the videotaped statement where it cannot further the accuracy of the
fact-finding inquiry. A trial judge may reach that conclusion where the complainant's capabilities as
a witness and the nature of his or her in-court testimony render the contents of the videotaped
statement entirely redundant. This is, perhaps, most likely to occur where the complainant is at the
high end of the age spectrum established by the section.
 Page 21

93 In any event, concerns referrable to the admission of statements by older complainants should
not be overstated when assessing the constitutionality of s. 715.1. The very factors which suggest
that such complainants need not resort to s. 715.1 to effectively communicate their version of
events, also support the conclusion that the accused will be able to effectively cross-examine that
witness, both with respect to the videotaped statement and the actual events in issue. A conclusion
that in some cases, the statement may be redundant, is no basis for finding the section
unconstitutional. Redundancy cannot be equated with unfairness to the accused, particularly given
the discretion which exists to exclude such statements.

94 The appellant next contends that s. 715.1 effects a de facto shift in the onus of proof. I see no
merit to this submission. The Crown must prove its case beyond a reasonable doubt. If the
complainant's evidence, including the videotaped statement, does not meet that onus, the accused
will be acquitted. I see no difference, in so far as the application of the onus of proof is concerned,
between a case where the Crown relies on the videotaped statement and the complainant's
testimony, and another case where the Crown relies solely on the in-court evidence of the
complainant.

95 The appellant further maintains that the absence of any provision permitting defence
participation in the creation of the videotaped statement eventually shown to the trier of fact denies
an accused an opportunity to make full answer and defence and thereby renders the trial unfair. The
appellant refers to legislation and recommendations in other jurisdictions which provide for defence
involvement in the initial videotaping, [Endnote 67] or at a supplementary interview prior to trial.
[Endnote 68] The appellant does not suggest that the full answer and defence entitlement contained
in s. 11(d) of the Charter requires as a general proposition that an accused have an opportunity to
participate in the pre-trial preparation of prosecution evidence. Nor does he suggest that recognized
disclosure rights go beyond the right to know of, and have access to relevant evidence in the
possession of the prosecution: R. v. Stinchcombe, supra. Rather, he ties the absence of any
opportunity to participate in the creation of the videotape shown at trial to an accused's
acknowledged right to a full opportunity to effectively challenge evidence introduced by the
prosecution: R. v. Albright, supra.

96 Nothing in s. 715.1 prevents the accused from cross-examining the complainant at trial, both
with respect to the statement and any other relevant event. Furthermore, an accused may
cross-examine any other witness called by the prosecution who may have evidence to give which is
relevant to the reliability or evidentiary value of the videotaped statement. Finally, an accused can
challenge the value of the videotaped statement through evidence called on behalf of the defence
after the prosecution has completed its case. These are the same forensic weapons available to an
accused who is confronted by an adopted out-of-court statement whose admissibility does not
depend on s. 715.1, [Endnote 69] or who is confronted with a prior consistent statement by a Crown
witness, introduced via existing common law rules. [Endnote 70]

97 To succeed on this point, the appellant is driven to the position that only questioning which is
 Page 22

contemporaneous with the making of the videotaped statement will afford an adequate opportunity
to challenge the contents of that statement. While there is some support for this in the American
case law dealing with provisions like s. 715.1, [Endnote 71] I read the judgment in R. v. B. (K.G.)
as holding that contemporary cross-examination on a statement made by a deponent who testifies at
trial is not a prerequisite to the admissibility of the statement. That case holds that, although
contemporaneous cross-examination is the idea within the adversarial process, where meaningful
cross-examination can be conducted at trial, the absence of contemporaneous cross-examination
goes to the weight and not to the admissibility of the out-of-court statement. [Endnote 72]

98 In my view, the admissibility of videotaped statements which meet the requirements of s.

715.1 will not deny an accused an opportunity to effectively challenge the content of those
statements and to conduct a meaningful cross-examination of the complainant. For the reasons set
out above, I regard the requirement that the complainant adopt the prior statement as safeguarding
the appellant's opportunity to conduct a meaningful cross-examination of the complainant with
respect to the statement and the events referred to in the statement. Cross-examination of a
complainant who remembers the relevant events and based on that memory asserts that the
videotaped statement is true should afford the trier of fact a satisfactory basis on which to assess the
reliability of both the witness and the prior statement. [Endnote 73] As already observed, the trial
judge may consider submissions referable to the accused's opportunity to meaningfully challenge
the statement and its contents when determining whether to exercise his or her discretion to exclude
a videotaped statement even though it meets the requirements of s. 715.1.

99 The appellant also submits that the admission of the videotaped statement creates unfairness
because it allows the Crown to present its case in a more compelling form than the traditional means
available to the defence. It is urged that the use of videotaped statements not only renders the
complainant's evidence-in-chief more compelling but also enhances the believability of the words
spoken on the videotaped interview. As one American court has put it:

. . . it is quite conceivable that the credibility of a witness whose testimony is

presented via closed-circuit television may be enhanced by the phenomenon
called status-conferral: it is recognized that the media bestows prestige and
enhances the authority of an individual by legitimizing his status. [Endnote 74]

100 The force of this submission depends entirely on a subjective assessment of the relative force
of the in-court evidence of a young complainant compared to the force of that same person's
statements during the videotaped interview. The minimal empirical data available is conflicting and
certainly not supportive of the appellant's position: Spencer and Flin, The Evidence of Children,
supra, note 11, at pp. 89-90. This limited information suggests that those who prosecute cases
involving abuse of young complainants do not perceive videotaped statements as carrying any
unique forensic force. [Endnote 75]

101 I have watched this videotape several times. I would describe it as clinical and of no more or
 Page 23

less impact than in-court testimony to the same effect. I do not pretend that my own subjective
reaction to this videotape provides any better basis for a generalized conclusion as to the potential
impact of videotaped statements than does the appellant's contrary subjective assessment. The point
is neither reaction provides a basis for judging the constitutionality of the section. The current state
of knowledge allows no legitimate generalization with respect to the impact of such statements. The
trial judge must make an individual assessment of the trier of fact's ability to objectively judge the
videotape tendered by the prosecution. If the trial judge is satisfied that the trier of fact cannot make
that objective assessment, he or she may exclude the statement.

102 The particular form of prejudice referred to in the preceding paragraph will potentially arise
in cases tried with a jury. The ability of jurors to follow legal instruction and properly perform the
task assigned to them should not be underestimated. [Endnote 76] Judges should not readily assume
that a jury's ability to objectively analyze and weigh evidence will be overcome merely because part
of the evidence is presented by way of videotape. Videotaping is hardly on the cutting edge of
modern technology. Its use in everyday life is so common as to be almost mundane. Absent some
unusual feature in the videotape, a modern jury, properly instructed, should have no difficulty
separating the message from the medium.

103 The appellant also submits that s. 715.1 renders the trial unfair because the complainant is
spared the task of repeating her allegations in open court while testifying. He contends that the
opportunity to test a witness' ability to consistently tell his or her allegation is a crucial test of
credibility that is effectively denied to an accused by s. 715.1.

104 On the interpretation I have given the section, there is no impediment to testing the
complainant's ability to repeat the allegation in the course of in-court testimony. To the extent that
inconsistencies emerge, counsel may rely on those in challenging the credibility of the complainant.
If the complainant demonstrates little or no real memory of the events referred to in the videotape,
counsel may argue that the complainant has not actually adopted the videotaped statement. To the
extent that that argument succeeds, the trier of fact will not consider the contents of the videotaped
statement in arriving at a verdict. Should that argument fail, counsel can still argue that any
shortcomings in the complainant's ability to restate his or her allegations in the course of the
in-court testimony should adversely affect the reliability of that evidence.

105 In so far as the effectiveness of this type of cross- examination is concerned, I see little, if
any, distinction between cross-examination of a complainant who has viewed the videotape to
refresh his or her memory immediately before, or even while, testifying, and the complainant who
watches and adopts the videotape in the course of examination-in-chief. It is true that if the
videotape is used only to refresh the memory of the complainant, the trier of fact will not see the
videotape, whereas if it is tendered under s. 715.1, it will be shown to the trier of fact. This
distinction is not, however, relevant to the complaint that s. 715.1 denies an accused an opportunity
to effectively cross-examine the complainant by not requiring him or her to repeat the substance of
the allegations made in the videotaped statement.
 Page 24

106 The last specific challenge to s. 715.1 based on s. 11(d) of the Charter refers to the section as
creating "a one-way street". Two different submissions are made under this rubric. First, the
appellant argues that the section provides an assist to the prosecution in eliciting evidence from the
complainant but leaves the defence with only the traditional means of extracting favourable
evidence from the complainant through his or her in-court testimony.

107 The section is facially neutral in that it does not limit admissibility to evidence tendered by
the Crown. It will, however, be invoked only by the Crown since any out-of-court statement
relevant to the events in issue may be put to the complainant in cross-examination without resort to
s. 715.1. If the statement is adopted as true by the complainant, it becomes evidence for or against
the accused. The section, rather than giving the Crown an evidentiary tool which the defence does
not have, puts a specified category of adopted prior consistent statements on the same admissibility
footing as out-of-court statements adopted by the complainant in the course of cross- examination.

108 This submission also fails to recognize that the contents of the videotaped statement are
admissible for and against the accused. In this case, the main thrust of the defence challenge to the
complainant's evidence was that she was asleep when the alleged assault occurred. That challenge
arose directly from the statements made by the complainant during the course of the videotaped
interview.

109 The second submission referable to the "one-way" nature of s. 715.1 is framed this way. The
section gives the complainant a favoured witness status in that part of his or her testimony is
prepared before trial in the privacy of an interview room, and under the exclusive control of the
prosecution. The defence is afforded no such luxury. It is further argued that this favoured status
permits the prosecution to buttress the complainant's credibility by introducing evidence of a prior
consistent statement before any attack on the complainant's credibility is made. This advantage is
also not made available to the accused.

110 Section 715.1 clearly does single out a particular class of witness and is not applicable to an
accused. In this respect, s. 715.1 is hardly unique. Most statutory rules of evidence are referable to a
specified type of evidence [Endnote 77] or a class of witnesses. [Endnote 78] The distinctions
drawn by these provisions reflect the different policy considerations which underlie each enactment.
No doubt, some of these provisions are resorted to by the prosecution more than by the defence
since the prosecution carries the burden of proof.

111 In my opinion, the statutory rules of evidence which are directed to a certain class of witness
do not, for that reason alone, render any trial in which the section is invoked, unfair. The effect of
the provision on the trial process must be considered. Section 715.1 permits the trier of fact to hear
evidence which may assist the trier of fact in determining the truth of the allegation made against an
accused. It does so in a manner which, for the reasons I have already detailed, does not restrict an
accused's opportunity to challenge the evidence adduced through s. 715.1 or otherwise make full
answer and defence. Consequently, the fact that s. 715.1 is limited to a specific class of witness does
 Page 25

not deny the accused a fair trial.

112 The appellant's reference to the "pre-packaged" nature of the evidence adduced under s.
715.1 is, in effect, a reiteration of the argument that fairness requires that an accused have some
opportunity to participate in the creation of the videotape eventually placed before the trier of fact. I
have already rejected that submission. I would only add that s. 715.1 is not unique in this respect
either. Many statutory provisions allow the prosecution to tender evidence prepared prior to trial
without any defence participation in that preparation. [Endnote 79] In those situations, as with s.
715.1, fairness concerns are addressed by disclosure requirements coupled with adequate provisions
giving the accused an opportunity to meaningfully challenge the evidence when it is tendered at
trial. Finally, in regard to this specific allegation of unfairness, it should be observed that while s.
715.1 does not apply to an accused, it does not limit the trial judge's authority to take whatever
measures may be necessary to permit an accused, who testifies, to place his or her full account of
the relevant events before the trier of fact. Normally, this account can be provided in the traditional
manner through viva voce evidence given by the accused. In extreme cases, however, where some
real impediment to the accused's ability to convey his or her account of events through viva voce
evidence is demonstrated, some other form of evidence may be allowed. [Endnote 80]

113 The appellant's contention that s. 715.1 offends s 11(d) by permitting the Crown to
pre-emptively buttress the complainant's credibility with evidence of a prior consistent statement
without giving the defence the same opportunity to adduce evidence of a prior consistent statement
made by the accused, must also be rejected. I have already indicated that I do not regard the present
state of the common law with respect to the admissibility of prior consistent statements as fixing
constitutional limits on the admissibility of such evidence. In any event, s. 715.1 in no way impairs
the accused's right, should he or she testify, to adduce any prior consistent statement made by the
accused which is relevant and capable of assisting the trier of fact in determining a fact in issue or
the credibility of the accused. For example, an accused who testifies may be permitted to indicate
that he or she made a similar exculpatory statement when first met with the allegation. In such
situations, the prior consistent statement is tendered:

. . . to rebut any inference of his guilt arising from any silence on his part at the
time of arrest. Although such an inference cannot be drawn as a matter of law by
reason of the right to remain silent, it may be drawn in fact. The accused can
adduce the exculpatory statement as a matter of good tactics. [Endnote 81]

114 There is a difference between the accused's right to adduce evidence of a prior consistent
statement when he or she testifies and the admissibility of a statement of a complainant tendered
through s. 715.1. A statement of a complainant which complies with s. 715.1 is presumptively
admissible subject to the discretion to exclude described earlier in these reasons. The prior
consistent statement of the accused will only be admitted upon a demonstration that the issues
raised in the trial or the circumstances surrounding the making of the prior consistent statement
warrant the conclusion that the trier of fact will be assisted by hearing the prior consistent statement.
 Page 26

In my opinion, this distinction in no way impairs an accused's opportunity to place all relevant
evidence in his or her favour before the jury and in no way renders a trial in which a statement is
adduced through s. 715.1 constitutionally unfair.

115 In summary, I would reject the arguments that s. 715.1 offends s. 11(d) of the Charter.
Applied as I have interpreted it, it does not deny an accused a fair trial, but achieves through resort
to modern technology an effective balance between the public interest in determining the validity of
allegations of criminal wrongdoing and the accused's right to a full and fair opportunity to defend
against such allegations.

V. Did the Trial Judge Err in Allowing the Jury to View the Videotape in their Jury Room During
their Deliberations?

116 During their deliberations, the jury sent a message to the trial judge asking that they be
provided with the equipment needed to replay the videotape of the interview with M.J. Counsel
agreed that the equipment should be sent into the jury room for their use during their deliberations.
Neither counsel asked the trial judge to further instruct the jury in connection with the viewing of
the videotape.

117 The jury was entitled to watch the videotape during their deliberations. The trial judge had a
discretion to allow the jury to watch the tape in the jury room, or to maintain control of the tape and
require the jury to watch the tape in the court room: R. v. Pleich (1980), 55 C.C.C. (2d) 13 at pp.
32-33, 16 C.R. (3d) 194 at pp. 213-15 (Ont. C.A.). The trial judge also had the discretion to further
instruct the jury concerning the videotape as an adjunct to their viewing of the videotape. For
example, he may have cautioned the jury against giving the statement undue weight merely because
it was in the form of a videotape and he may have reviewed with the jury the substance of the
child's viva voce evidence. The trial judge properly solicited the views of counsel and was, no
doubt, influenced by their submissions when he decided to let the jury watch the videotape in the
jury room without any further direction.

118 The appellant argues that a videotape received under s. 715.1 is such a potentially powerful
piece of evidence that it should never be the subject of a private screening in the jury room: U.S. v.
Binder, 769 F. 2d 595 (9th Cir. 1985). I do not agree that a videotape is so different from other
forms of testimonial evidence which routinely go into the jury room as exhibits, that there must be a
rule that a trial judge can never allow the jury to view the videotape in the privacy of their jury
room. In all such situations, the trial judge must decide how to best facilitate the jury's deliberations
while maintaining the fairness of the process. The testimonial nature of the exhibit and the medium
through which the evidence is expressed will no doubt be considered by the trial judge when
deciding whether the jury should be allowed to view the exhibit in the privacy of the jury room.
These features may direct the exercise of the discretion described in Pleich, but cannot eliminate it.

119 It cannot be said that the trial judge improperly exercised his discretion when, after
consultation with counsel, he allowed the jury to view the videotape in their jury room during their
 Page 27

deliberations.

VI. The Sentence Appeal

120 Before addressing the merits of the sentence appeal, some clarification of the verdicts is
necessary. The jury convicted on count 1 (sexual interference) and acquitted on count 2 (sexual
assault). The facts relied on in support of the two charges were identical. The apparent
inconsistency between the two verdicts is explained by the trial judge's erroneous instruction to the
jury that they should acquit on count 2 if they convicted on count 1. Consequently, no finding of
fact relevant for the purposes of sentence can be deduced from the two different verdicts returned
by the jury.

121 The circumstances of this offence, while serious, do not approach the egregious
circumstances which exist in many cases of child sexual abuse. The appellant's minor criminal
record has little relevance to this offence. The incident was a single isolated occurrence. The victim
was, however, very young. The court must, through the sentencing process, express society's
abhorrence of offences like this one. Even though there are significant mitigating factors in this
case, a jail term was entirely appropriate. I cannot say that six months was excessive.

VII. Conclusion

122 In the result, the appeal from conviction is dismissed, leave to appeal sentence is granted but
the appeal is dismissed.

123 The non-publication order made at trial will continue.

Appeal dismissed.

Endnotes

1 The same challenge was made in R. v. A. (Court of Appeal No. C8144) and
R. v. L. (Court of Appeal No. C8778) and the three cases were heard together. I
will address the arguments in all three cases when I consider this ground of
appeal.

2 At trial, counsel raised other objections to the admission of the videotape.

Only the constitutional argument has been renewed in this court.

3 I include the submissions made on behalf of the appellants in R. v. A. and R.

v. L., although counsel for L. did not support the first proposition advanced by
 Page 28

the appellant, and takes the position in his supplementary factum that "the
present case is not concerned with hearsay".

4 The section was found to be constitutional in R. v. Argue, a decision released

October 2, 1991 (Ontario Court (General Division)), R. v. Trenpanier, a decision
released August 1, 1991 (Ontario Court (Provincial Division)), R. v. Kilabuk
(1990), 60 C.C.C. (3d) 413, 2 C.R. (4th) 350 (N.W.T.S.C.), R. v. B. (K.) (1990),
76 Alta. L.R. 129 (Q.B.), and R. v. Keller, a decision released July 5, 1989 (Alta.
Q.B.). The section was ruled unconstitutional in R. v. Christensen, a decision
released June 14, 1989 (Ont. Dist. Ct.) [summarized in 8 W.C.B. (2d) 13]; R. v.
Thompson (1989), 68 C.R. (3d) 328, 97 A.R. 156 (Q.B.); R. v. M. (J.L.) (1991),
68 C.C.C. (3d) 344 (Sask. Q.B.), R. v. W. (A.J.), a decision released April 13,
1992 (Nfld. Prov. Ct.); R. v. A. (P.), a decision released January 5, 1993 (Ont.
Gen. Div.).

5 (1991), 65 C.C.C. (3d) 465, 6 C.R. (4th) 277 (Man. C.A.). On June 15, 1993,
the Supreme Court of Canada unanimously reversed the Manitoba Court of
Appeal and upheld the constitutionality of s. 715.1. Reasons for judgment are to
follow.

6 The need to establish the contours of the impugned provision before

subjecting it to Charter review is demonstrated in R. v. Butler, [1992] 1 S.C.R.
452 at pp. 471-86, 70 C.C.C. (3d) 129 at pp. 141-51.

7 R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 at p. 605, 66 C.C.C. (3d)

321 at p. 386.

8 Alterations to the established process in order to enhance the truth-finding

function of that process are well-known. For example, a public forum is
generally viewed as essential to the truth-finding process; however, courts and
legislatures have long recognized that in certain exceptional cases, the exclusion
of the public is necessary to facilitate the search for the truth: see s. 486(1) of the
Criminal Code.

9 The Report of the Committee on Sexual Offences Against Children and

Youths, Supply and Services Canada (1984) (the Badgley Report). The Ontario
Law Reform Commission, Report on Child Witnesses (1991).
 Page 29

10 Report of the Home Office Advisory Group on Video Evidence (the Pigot
Report) (1989); Scottish Law Commission, Report 125: Report on the Evidence
of Children and Other Potentially Vulnerable Witnesses (1990); Law Reform
Commission of Western Australia, Report 87: Report on the Evidence of
Children and Other Potentially Vulnerable Witnesses (1991); Law Reform
Commission Report of Tasmania, Report 62: Child Witnesses (1990); Law
Reform Commission of Victoria, Report 13: Sexual Offences Against Children
(1988); Ireland Law Reform Commission, Report on Child Sexual Abuse (1990).

11 For example, the very process of cross-examination, long regarded as that

"great legal engine" for the discovery of the truth is said to be ill-suited to testing
the reliability of young persons' evidence: Spencer and Flin, The Evidence of
Children: The Law and the Psychology (1990), at pp. 222-28; Hill and Hill,
"Videotaping Children's Testimony: An Empirical View" (1987), 85 Mich. L.
Rev. 809 at pp. 821-22.

12 The reports referred to in notes 8 and 9 all recommended changes to the

customary procedure. Most of the changes recommended were more dramatic
than that achieved by s. 715.1. Other jurisdictions have long abandoned their
traditional processes where evidence from young complainants is required: See
Spencer and Flin, The Evidence of Children, supra, note 11, c. 13. In particular,
Israel, which has a common law criminal justice system, has presented the
evidence of young complainants through a "Youth Investigator" since 1955:
Harnon, "Children's Evidence in Sexual Offences", an unpublished paper
presented at the Vancouver Conference of the Society for the Reform of the
Criminal Law, August 1992; Harnon, "The Examination of Children in Sexual
Offences -- The Israeli Law and Practice", [1988] Crim. L. Rev. 263.

13 It should not, however, be taken that there is widespread agreement on the

extent to which these problems operate. For example, the Report of the Ontario
Law Reform Commission, supra, note 9, at pp. 7-18, suggests that perceived
differences between young witnesses and mature witnesses are overstated in
many respects: see also, Mian et al., "The Child as Witness" (1991), 4 C.R. (4th)
359. It is clear that we have much to learn about how the human mind, regardless
of age, records, stores and calls up past events: see Allan, "The Working and
Rationale of the Hearsay Rule and the Implications of Modern Psychological
Knowledge" (1991), 44 Curr. Legal Probs. 217.
 Page 30

14 In this case, the trial took place 10 months after the alleged assault. In R. v.
A., one year passed before trial, and in R. v. L., there were 13 months between
the event and the trial.

15 McGough and Hornsby, "Reflections upon Louisiana's Child Witness

Videotaping Statute" (1987), 47 Louisiana Law Review 1255 at pp. 1258-59;
Yun, "A Comprehensive Approach to Child Hearsay Statements in Sex Abuse
Cases" (1983) 83 Colum. L. Rev. 1745 at pp. 1750-51; Williams, "Child
Witnesses" in P. Smith (ed.), Essays in Honour of J.C. Smith (1987) 188 at pp.
189-90; Spencer and Flin, The Evidence of Children, supra, note 11, at pp.
249-51; Goodman and Helgeson, "Child Sexual Assault: Children's Memory and
the Law" (1985), 40 U. Miami L. Rev. 181 at p. 203; Spencer and Flin, "Do
Children Forget Faster?", [1991] Crim. L.R. 189. It should be stressed that while
the above authors almost all agree that the comprehensiveness of a young
complainant's memory suffers with the passage of time, there is more debate
whether that same passage of time is more likely to cause a young person to
inaccurately recall events than would be the case were the witness a mature
person.

16 Goode, "The Politics of Child Sexual Abuse and the Role of the Criminal
Law" (1989), 13 Crim. L.J. 31 at pp. 37-39; McGough and Hornsby, supra, at pp.
1259-61; Williams, "Child Witnesses", supra, note 15, at p. 189; Spencer and
Flin, The Evidence of Children, supra, note 11, at pp. 252-57; Department of
Justice (Canada), Child Victims and Witnesses: The Social Science and Legal
Literature (1988), at pp. 22-23.

17 Spencer and Flin, The Evidence of Children, supra, note 11, at pp. 290-97;
Yun, supra, note 15, at pp. 1751-52; Goodman, Helgeson, supra, note 15, at pp.
203-34; O'Brien, "Television Trials and Fundamental Fairness: The
Constitutionality of Louisiana's Child Shield Law" (1986), 61 Tul. L. Rev. 141 at
pp. 148-51; Australian Law Reform Commission, Discussion Paper No. 40,
"Children's Evidence by Video-Link" (July 1989) at pp. 4-5.

18 The extensive material provided by the respondent demonstrates that the

vast majority of American jurisdictions have enacted some form of special
evidentiary rule pertaining to the evidence of young complainants. Most of those
 Page 31

provisions provide for the admissibility of various types of out-of-court

statements made by complainants. Many of these statutes are reviewed in Note:
"The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative
Innovations" (1985), 98 Harv. L. Review 806; Campbell, "The Use of
Videotaped and In-Camera Testimony in Criminal Trials to Accommodate Child
Witnesses" (1989), 68 Neb. L. Rev. 372. Other common law jurisdictions have
also modified existing evidentiary rules and trial procedures in cases involving
young complainants: Criminal Evidence Act, 1992, No. 12, ss. 15(2), and
16(1)(b) (Ireland); Criminal Justice Act, 1991 (U.K.), c. 53, s. 54; The Criminal
Code, Evidence Act, and Other Acts Amendment Act, 1989, No. 17, ss. 63 and
64 (Queensland); Evidence Act Amendment Act, 1988, No. 32, s. 6 (South
Australia).

19 In the context of this legislation, statements can refer to anything from ex

parte police interviews, to the excited utterances of a complainant immediately
after the event. Depositions refer to formal statements taken according to court
established procedures which provide the defence with an opportunity to
question the complainant in the course of the taking of the deposition. Most
American statutes admit out-of- court depositions in lieu of the viva voce
evidence of the child. Many statutes, however, admit various forms of ex parte
statements as long as the complainant is available for cross- examination at trial.

20 American statutes which require that the out-of-court statement be

videotaped and which bear some similarity to s. 715.1 include Rules of Evidence,
Rule 616, Revised Statutes c. 626 (1985) (Hawaii); K.S.A. 38-1557 (1986 supp.)
(Kansas); K.Y. Rev. Stat., s. 421.350 (1989 supp.) (Kentucky); 15 L.A. Rev.
Stat. Ann. ss. 283, 440.1 (1991 supp.) (Louisiana). The English and Irish
legislation referred to supra, note 18, also require that the out-of-court statements
be videotaped.

21 R.G. Mosley, senior general counsel for the Department of Justice, said the
following, in introducing s. 715.1 before the Standing Senate Committee on
Legal and Constitutional Affairs, on November 20, 1986 at 11:23:

"The videotape. . . is a means of getting the child's earlier statement before the
court in the belief that the earlier statement will be an accurate and, hopefully,
more complete account as to what took place."
 Page 32

124 The above quotation and other statements by Mr. Mosley are referred to in McGillivray, "R.
v. Laramee : Forgetting Children, Forgetting Truth" (1990), 6 C.R. (4th) 325 at p. 331; and in Bala,
"Children as Witnesses in Sexual Abuse Cases: Statutory Reforms", Canadian Bar Association
Proceedings (Toronto, 1991) at p. 49.

22 The complainant must adopt the videotaped statement while testifying. In

this regard, s. 715.1 is contrary to the recommendation of the Badgley Report,
supra, note 9, vol. 1, at pp. 399-400, which recommended that the complainant
not be required to testify if the out-of-court statement was sufficiently reliable.

23 Bala, "Children as Witnesses in Sexual Abuse Cases: Statutory Reform",

supra, note 21, at p. 49; McGillivray, "R. v. Laramee : Forgetting Children,
Forgetting Truth", supra, note 21, at pp. 328-29; Spencer, "Child Witnesses and
Video Technology: Thoughts for the Home Office" (1987), 51 J. of Crim. L. 444
at pp. 450-51.

24 R. v. Levogiannis (1990), 1 O.R. (3d) 351 at p. 374, 62 C.C.C. (3d) 59 at p.

82 (C.A.), appeal dismissed by Supreme Court of Canada June 15, 1993, reasons
to follow; R. v. Khan, [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92; Khan v. College
of Physicians & Surgeons (1992), 9 O.R. (3d) 641 at p. 657, 76 C.C.C. (3d) 10 at
pp. 24-25 (C.A.).

25 In Laramee, supra, at p. 488 C.C.C., p. 313 C.R., Twaddle J.A. described

one of the purposes of the section as the protection of the child "from the
vicissitudes of giving evidence in the formal setting of the courtroom and from
the fear of facing the accused". Helper J.A., in the same judgment, appeared to
accept that the protection of the young complainant as witness was the purpose of
the section (pp. 499-500 C.C.C., p. 299 C.R.). For an effective critique of this
part of Laramee, see McGillivray, supra, note 21, at pp. 330-31.

26 Young, "Child Sexual Abuse and the Law of Evidence: Some Current
Canadian Issues" (1992), 11 Can J. Fam. L. 11 at pp. 37-38; Wilson, "Children's
Evidence in Legal Proceedings: A Perspective on the Canadian Position" (1989),
23 L. Soc. Gaz. 281 at pp. 288-90. Section 715.1 was subjected to careful and
generally favourable analysis by the Scottish Law Reform Commission, supra,
note 10, at pp. 27-30, although the authors thought that the section was unduly
restrictive in its application.
 Page 33

27 The introduction of the videotaped statement may reduce the time spent by
the complainant in the witness stand, although the need for the complainant to
testify on the voir dire will, in all likelihood, more than offset this potential
benefit. The videotape might also help the complainant verbalize his or her
account of the events. Finally, there is some anecdotal evidence suggesting that
provisions like s. 715.1 increase guilty pleas thus avoiding the need for the
complainant to testify at all: see Goodman and Helgeson, supra, note 15, at p.
199; Spencer and Flin, The Evidence of Children, supra, note 11, at pp. 162-63.

28 The legislation is now in force: Criminal Justice Act, 1991 (U.K.), c. 53, s.
54, supra, note 18.

29 (1987), 137 N.L.J. 1127 at p. 1128. To the same effect see McGillivray,
supra, note 21, at p. 341.

30 R. v. Corbett, [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385; R. v. Potvin, [1989]

1 S.C.R. 525, 47 C.C.C. (3d) 289: see also Paciocco, "The Law of Evidence:
Recasting Rules to Perform New Roles" (1991), L.S.U.C. Special Lectures:
Applying the Law of Evidence at pp. 14-15.

31 Cross and Tapper, Cross on Evidence, 7th ed. (1991), at pp. 281-95;
MacCrimmon, "Consistent Statements of Witnesses" (1979), 17 Osgoode Hall L.
J. 285.

32 (1990), 61 C.C.C. (3d) 345 at 357-59, 2 C.R. (4th) 316 at 328-30 (Alta.
C.A.).

33 The Scottish Law Reform Commission, supra, note 10, at pp. 29-30,
specifically refers to the possibility of partial adoption as a basis for admitting
part of the videotaped statement.

34 This is the same task performed by a trial judge when a witness is

confronted with a prior inconsistent statement which it is claimed that he has
adopted, or where the Crown attempts to introduce evidence that the accused
adopted a statement made by someone else: R. v. Baron (1976), 14 O.R. (2d) 173
(C.A.) at pp. 186-89, 31 C.C.C. (2d) 525 at pp. 538-41.
 Page 34

35 Supra, note 32, at pp. 351-59 C.C.C., pp. 322-30 C.R. This aspect of
Meddoui was applied in R. v. Kilukishak, released November 24, 1992
(N.W.T.S.C.) [now reported [1993] N.W.T.R. 70].

36 The authors of The Report of the Federal/Provincial Task Force on

Uniform Rules of Evidence (1982), at p. 295, write:

"A witness under oath and subject to cross-examination, who adopts such a
statement as truthful on the basis of his present recollection does not infringe the
Hearsay Rule."

Similarly, the Advisory Committee Commentary on Rule 801 of the Federal Rules of Evidence
found in Appendix "A" of J.W. Strong, ed., McCormick on Evidence, 4th ed. (1992), vol. II, at p.
660, observes:

"Considerable controversy has attended the question whether a prior out-of-court

statement by a person now available for cross-examination concerning it, under
oath and in the presence of the trier of fact, should be classified as hearsay. If the
witness admits on the stand that he made the statement and that it was true, he
adopts the statement and there is no hearsay problem."

37 Even though the complainant testifies, out-of-court statements may be

admissible under the hearsay analysis developed in R. v. Khan, supra, note 24; R.
v. Smith, [1992] 2 S.C.R. 915, 75 C.C.C. (3d) 1257; and R. v. B. (K.G.), [1993] 1
S.C.R. 740, 79 C.C.C. (3d) 257: see also Khan v. College of Physicians &
Surgeons, supra, note 24.

38 R. v. Béland, [1987] 2 S.C.R. 398 at pp. 409-10, 36 C.C.C. (3d) 481 at pp.
489-90; R. v. Campbell (1977), 17 O.R. (2d) 673 at p. 685, 38 C.C.C. (2d) 6 at p.
18 (C.A.); R. v. Meddoui, supra, at p. 353 C.C.C., p. 324 C.R.; MacCrimmon,
"Consistent Statements of Witnesses", supra, note 31, at pp. 285-86; Sopinka,
Lederman and Bryant, The Law of Evidence in Canada (Markham: Butterworths,
1992), at pp. 307-08. The danger of fabrication is also sometimes said to be a
basis for the exclusion of prior consistent statements. Most of the authorities
indicate that this danger should go to weight and not to admissibility: Cross on
Evidence, supra, note 31, at p. 281.
 Page 35

39 The exceptions are collected in various evidence texts: e.g., Sopinka, The
Law of Evidence in Canada, supra, note 38, at pp. 308-21; Cross on Evidence,
supra, note 31, at pp. 282-95; Report of the Federal/Provincial Task Force on
Uniform Rules of Evidence, supra, note 36, at pp. 294-311: see also R. v. Jones
(1988), 44 C.C.C. (3d) 248 at pp. 255-56, 66 C.R. (3d) 54 at p. 61 (Ont. C.A.).

40 E.g., the exception referrable to statements going to the prior identification

of the accused by the witness.

41 E.g., res gestae statements.

42 E.g., prior statements to rebut allegations that the witness' evidence was
fabricated as of a certain point in time.

43 R. v. Langille (1990), 75 O.R. (2d) 65 at pp. 71-77, 59 C.C.C. (3d) 544 at

pp. 555-56 (C.A.); R. v. Swanston (1982), 65 C.C.C. (2d) 453 at pp. 455-58, 25
C.R. (3d) 385 at pp. 387-91 (B.C.C.A.); McCormick on Evidence, supra, note 36,
Vol. II, pp. 122-23, Deutscher and Leonoff, Identification Evidence (1991), at
pp. 90-95; Sopinka et al., The Law of Evidence in Canada, supra, note 38, at pp.
313-14.

44 In R. v. A., there was extensive reference in the videotaped statement to

alleged assaults not encompassed by the indictment.

45 The last minute of the videotape introduced in this case and referred to
above went beyond the complainant's description of the "acts complained of" and
could have been deleted. Similarly, the very brief reference to conversations
between the complainant and her mother was not within the ambit of s. 715.1.
Counsel for the appellant quite properly did not suggest that the failure to excise
these parts of the statement from the videotape prejudiced the appellant.

46 See R. v. Oickle (1984), 11 C.C.C. (3d) 180 at p. 189, 61 N.S.R. (2d) 239 at
p. 246 (C.A.), holding that evidence is only admissible under s. 715 if it
conforms to the rules relating to in-court testimony. To the same effect, see
Sopinka, The Law of Evidence in Canada, supra, note 38, at p. 276. See also R.
v. B. (K.G.), supra, note 37, at p. 784 S.C.R., pp. 285-86 C.C.C., where Lamer
 Page 36

C.J.C. imposed the same limitation on a judge-made rule admitting evidence of

prior inconsistent statements for the truth of their contents.

47 A statement which refers to events other than those encompassed by the

charge would also run afoul of the requirement that the statement be one that
"describes the acts complained of".

48 The trial judge in R. v. L. edited the videotaped statement extensively

before admitting it.

49 Laramee, supra, note 5, at pp. 506-07 C.C.C., p. 300 C.R. Others have
taken the position that the trial judge does have a discretion to exclude a
statement even if it complies with s. 715.1: see Rosenberg, "Child and Sexual
Abuse Victims", an unpublished paper presented at the Vancouver Conference of
the Society for the Reform of the Criminal Law, August 1992 at p. 4; and R. v.
Kilabuk, supra, note 4.

50 Were such a case to occur, it may also be argued that the complainant has
not effectively adopted the statement.

51 The analysis is developed in the recent hearsay trilogy, R. v. Khan, R. v.

Smith, R. v. B. (K.G.), supra, note 37.

52 These bases underlie the analysis of Twaddle J.A. and Helper J.A. in R. v.
Laramee, supra, note 5.

53 These dangers are identified by Lamer C.J.C. in R. v. B. (K.G.), supra, note

37, at pp. 763-64 S.C.R., pp. 271-72 C.C.C., as the absence of an oath, or legal
equivalent, the inability to assess demeanour, the danger of inaccurate reporting
of the statement and the absence of cross-examination.

54 The value of videotape in establishing the accuracy and reliability of an

out-of-court statement is stressed in R. v. B. (K.G.), supra, note 37, per Lamer
C.J.C. at pp. 766-67 and 793-94 S.C.R., pp. 273-74 and 292-93 C.C.C.
 Page 37

55 In U.S. v. Owens, 484 U.S. 554 (1987) at p. 560, the majority held that it
was unnecessary to determine the admissibility of an out-of-court statement by
reference to independent indicia of reliability where the "declarant is present at
trial and subject to unrestricted cross-examination". In Owens, unlike cases
envisioned by s. 715.1, the witness had no recollection of the actual events at the
time he testified. Paciocco also argues that where "meaningful"
cross-examination is possible at trial, there need be no inquiry into the reliability
of the out-of-court statement: Paciocco, Charter Principles and Proof in Criminal
Cases (1987), at pp. 248-50 and 328.

56 I would, however, observe that the necessity/reliability criteria guide the

principal development of the common law relating to hearsay evidence. Judicial
law-making, through modification of the common law, is a positive process
whereby judges adjust and develop the law to meet contemporary needs. Judicial
law-making through changes to the common law is, of necessity, cautious,
restrained, and incremental: R. v. Salituro, [1991] 3 S.C.R. 654 at p. 670, 68
C.C.C. (3d) 289 at p. 301. Judicial review of the constitutionality of statutory
enactments is a negative process whereby the constitutional boundaries of
permissible legislative activity are drawn. It is far from clear to me that analytical
tools which are appropriate to the former should necessarily be applied to the
latter process.

57 Attempts to apply the necessity/reliability criteria to a legislative enactment

at large demonstrate the difficulty of transplanting the necessity/reliability
analysis to the field of judicial review of the constitutionality of statutory
enactments. The necessity/reliability analysis is fact-specific as demonstrated
particularly in R. v. Smith, supra, note 37. Without a specific factual context, it is
impossible to determine to what degree it is "necessary" to receive the evidence
of a particular videotaped statement.

58 Law Reform Commission of Canada, Report on Evidence (1975), Evidence

Code, ss. 5, 28 and 62, commentary, p. 70. The proposed Canada Evidence Act,
1982 (Bill S-33, ss. 118-120) proposed a much more restrictive rule of
admissibility with respect to prior consistent statements.

59 In the United States, recommendations favouring a general rule of

admissibility with a discretion to exclude were promoted by Wigmore's revised
view favouring admissibility. These recommendations found their way into the
 Page 38

Model Code of Evidence (1942, Rule 503(b)) and the original Uniform Rules of
Evidence (1953, Rule 63(1)). The various recommendations are set out in
McCormick on Evidence, supra, note 36, at pp. 117-20. The present Federal
Rules of Evidence (Rule 810(d)(1)) provide for the admissibility of only certain
specific kinds of prior consistent statements.

60 See the authorities referred to supra, notes 38-42.

61 R. v. Corbett, supra, note 30, per La Forest J. (dissenting in the result) at p.

745 S.C.R., p. 439 C.C.C. See also R. v. Seaboyer; R. v. Gayme, supra, note 7,
per McLachlin J., at p. 603 S.C.R., p. 385 C.C.C., per L'Heureux-Dubé J. (in
dissent) at pp. 698-99 S.C.R., pp. 369-70 C.C.C.

62 Similar objections appear in the literature. For example, see Misener,

"Children's Hearsay Evidence in Child Sexual Abuse Prosecutions: A Proposal
for Reform" (1991), 33 Crim. L.Q. 364 at pp. 379-80.

63 Thus, in R. v. Bain, [1992] 1 S.C.R. 91, 69 C.C.C. (3d) 481, the "stand
aside" provisions of the Criminal Code were declared unconstitutional, not
because they could be abused by the prosecution, but because the terms of the
statute resulted in a disparity which created a reasonable apprehension that any
jury selected could be biased in favour of the Crown.

64 Many of the potential abuses referred to by the appellant exist with respect
to a complainant's in-court testimony. He or she may be coached to act in a
certain way or the complainant's entire evidence may be carefully scripted and
rehearsed by a combination of malevolent or over-zealous prosecutors, social
workers, and relatives of the complainant. It has not been suggested that
complainants should not be allowed to testify because of these inherent dangers.

65 The complainant must be under 18 years of age at the time of the alleged
offence.

66 For example, the English legislation (Criminal Justice Act, 1991, s. 54(7))
permits the introduction of videotaped statements from children who are under
17 when the videotape was made and under 18 at the time of trial. The American
 Page 39

statutes set various age limits in their child shield provisions. Most set the age
limit at 14 years or lower.

67 The American statutes which provide for the admission of pre-trial

depositions contemplate cross-examination as part of the deposition process: e.g.,
see the statute discussed in McGuire v. State, 706 S.W. 2d 360 (S.C. Ark. 1986).

68 The proposals submitted in 1989 by the Home Office Advisory Group on

Video Evidence (the "Pigott Committee") contemplates defence participation in a
second videotaping which, along with the initial ex parte videotaping, could be
shown at trial. According to this scheme, however, the complainant would not
testify at trial. The committee's proposals are reviewed by Spencer and Flin, The
Evidence of Children, supra, note 11, at pp. 324-26. The Revised Uniform Rules
of Evidence (1986), Rule 807(a)-(c) provide for supplementary questioning but
not by counsel for the accused. See McCormick on Evidence, supra, note 36, at
p. 225.

69 The statements may be admissible under s. 9 of the Canada Evidence Act,

R.S.C. 1985, c. C-5, or the statement may be a prior statement allegedly adopted
by an accused and therefore admissible against that accused.

70 For example, prior consistent statements made by witnesses referable to the

identification of the accused will not have been subject to cross-examination
when the statements were made.

71 These cases regard the absence of contemporaneous cross- examination as

infringing the Sixth Amendment right to confrontation: see State v. Pilkey, 776
S.W. 2d 943 (S.C. Tenn. 1989); State v. Bastien, 541 N.E. 2d 670 (S.C. Ill.
1989); Long v. State, 742 S.W. 2d 302 (Tex. Crim. App. Ct. 1987), cert. denied
108 S.C. 1301. To the contrary effect, see Buckley v. State, 786 S.W. 2d 357
(Tex. Crim. App. in banc 1990); Jones v. Dugger, 888 F.2d 1340 (11th Cir.
1989); State v. Bennett, 591 S.O. 2d 1193 (L.A. App. 1st Cir. 1991); State v.
Schaal, 806 S.W. 2d 659 (Mo. banc 1991).

72 R. v. B. (K.G.), supra, note 37, per Lamer C.J.C., at pp. 769-70 and 794-95
S.C.R., pp. 275-76 and 293-94 C.C.C. I do not read the comments concerning the
significance of contemporaneous cross-examination as limited to
 Page 40

cross-examination with respect to prior inconsistent statements. Certainly in

those cases, the argument that only contemporaneous cross-examination can be
effective is destroyed by the very fact of the recantation. However, as Chief
Justice Lamer points out at p. 770 S.C.R., p. 276 C.C.C., "the real issue to be
considered is whether the absence of contemporaneous cross-examination is a
sufficient reason to exclude the statement from the jury as substantive evidence".
In my view, this "real issue" is resolved only by considering whether an accused
has an opportunity to meaningfully cross- examine the witness at trial both with
respect to the statement and the events in issue.

125 R. v. B. (K.G.) is consistent with the position adopted by the United States Supreme Court.
That court looks to the potential for meaningful cross-examination of the deponent on his or her
out-of-court statement at trial as crucial in assessing whether the admissibility of that statement
infringes the constitutional right to confrontation or due process: see U.S. v. Owens, supra, note 55,
at pp. 557-60; California v. Green, 399 U.S. 149 (1970) at pp. 157-64.

73 In Green, supra, note 72, per White J., at pp. 168-69, per Brennen J. (in
dissent) at pp. 192-94, the court distinguishes between the witness who makes an
out-of-court statement and has no recollection of the events at trial, and the
witness who is able to remember the events. It appears to be common ground
between the majority and dissent that where the witness can remember the
events, cross-examination at trial provides a sufficient means to challenge the
witness' version of events. See also Douglas v. Alabama, 380 U.S. 415 (1965) at
pp. 419-20 where that court held that effective cross-examination on an
out-of-court statement could be performed where the witness "affirmed the
statement as his".

74 Hochheiser v. Superior Court (People), 208 Cal. Rptr. 273 (Cal. App. 2
Dist. 1984) at p. 279.

75 Spencer and Flin, The Evidence of Children, supra, note 11, at pp. 89-90.
See also the comment of Kerans J.A. in R. v. Meddoui, supra, note 32, at p. 355
C.C.C., p. 327 C.R. where he opines "I suspect juries will always be more open
to persuasion by live description". See also McGillivray, "Abused Children in the
Courts: Adjusting the Scales after Bill C-15" (1990), 19 Man. L.J. 549 at pp.
566-67, where she describes the very limited use of videotaped statements in
Manitoba.

76 Chief Justice Dickson stressed this point in R. v. Corbett, supra, note 30 at

 Page 41

pp. 688-97 S.C.R., 399-404 C.C.C. See also the comments of Wilson J. (in
dissent) in R. v. Béland, supra, note 38, at p. 426 S.C.R., p. 501 C.C.C., where
she suggests that judges should not be quick to assume that modern juries will be
awed by technology.

77 E.g., s. 29 of the Canada Evidence Act, R.S.C. 1985, c. C- 5, makes special

rules for banking records. Section 30 of the same Act sets down special rules
referable to business records.

78 E.g., see s. 486(2.1) of the Criminal Code which applies only to

complainants who are under 18 years of age at the time they testify. Section 4 of
the Canada Evidence Act is referable only to spouses of an accused.

79 Various provisions like s. 9 of the Narcotic Control Act, R.S.C. 1985, c.

N-1, that permit the prosecution to prove facts by way of certificates referring to
the results of tests are certainly examples of "pre-packaged" evidence.

80 E.g., see R. v. Moore (1990), 63 C.C.C. (3d) 85 (Ont. Gen. Div.), where the
trial judge allowed the in-court testimony of an accused to be supplemented by
evidence from a psychiatrist as to statements made by the accused while she was
under the effect of sodium amytol. The trial judge had made a finding that the
accused, because of a mental disorder, could not, when testifying, recall all of the
relevant events.

81 Sopinka et al., supra, note 38, at p. 319. The authors refer to Lucas v. R.,
[1963] 1 C.C.C. 1 at pp. 10-11, 39 C.R. 101 (S.C.C.); see also R. v. Simpson,
[1988] 1 S.C.R. 3 at pp. 19-25, 38 C.C.C. (3d) 481 at pp. 494-98; see also Cross
on Evidence, supra, note 31, at pp. 292-93 and R. v. Newsome (1980), 71 Cr.
App. R. 325.
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