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

Her Majesty The Queen Appellant

v.

C.C.F. Respondent

Indexed as: R. v. F. (C.C.)

File No.: 25198.

Hearing and judgment: October 16, 1997.

Reasons delivered: December 18, 1997.

Present: Sopinka,[^1] Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Videotape evidence ‑‑ Children ‑‑ Videotape made of child‑complainant’s testimony shortly after alleged crime and admitted into evidence on adoption by child ‑‑ Requirements for the admissibility of a videotaped statement under s. 715.1 of the Criminal Code ‑‑ Whether voir dire necessary -- Effect of inconsistencies between child’s viva voce evidence and videotaped statement ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 715.1.

The respondent was convicted of touching his six‑year‑old daughter for a sexual purpose. The police investigated the complaint the evening it was made and videotaped the complainant’s statement describing the incident. At trial, the complainant was shown the videotape following her examination‑in‑chief. She identified herself in the videotape, confirmed that she made the statements on the videotape and that they were true. The trial judge ruled that the complainant had adopted the videotaped statement and admitted it as evidence pursuant to s. 715.1 of the Criminal Code. On cross‑examination the complainant made statements which contradicted in part the videotaped statements. The Ontario Court of Appeal overturned the conviction and directed a new trial at the discretion of the Crown. At issue here were the requirements for the admissibility of a videotaped statement under s. 715.1 and the effect of an inconsistency between the child’s viva voce evidence and her videotaped statement. Also at issue was whether a voir dire should have been held with respect to the admissibility of the complainant’s videotaped statement.

Held: The appeal should be allowed.

Section 715.1 of the Code is a statutory exception to the hearsay rule which permits an out‑of‑court statement to be admitted at the trials of certain enumerated offences if the complainant is under 18 and if the video was made within a reasonable time following the alleged offence. The complainant must also describe the acts complained of and, while testifying, adopt the contents of the videotape. The section’s primary goal is to create a record of what is probably the best recollection of the event. It is also to prevent or reduce materially the likelihood of inflicting further injury upon a child as a result of participating in court proceedings.

The word “adopts” in s. 715.1 should be given a meaning consistent with the section’s aim and purpose and the word “confirme” in the French text must be given the same meaning. The strict adoption test for prior inconsistent statements, which was necessary to ensure a reasonable degree of reliability, should not be used because s. 715.1 has built‑in guarantees of trustworthiness and reliability.

A witness who cannot remember the events cannot be effectively cross‑examined on the contents of his or her statement. Several factors present in s. 715.1 provide the requisite reliability of the videotaped statement: (a) the requirement that the statement be made within a reasonable time; (b) the fact that the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor and to assess the personality and intelligence of the child; (c) the requirement that the child attest that he or she was attempting to be truthful at the time that the statement was made. As well, the child can be cross‑examined at trial as to whether he or she was actually being truthful when the statement was made. Moreover, where the complainant has no independent memory of the events, there is an obvious necessity for the videotaped evidence. The trier of fact, however, should be given a special warning of the dangers of convicting based on the videotape alone.

Once the trial judge rules that the statement has been adopted, the video becomes evidence of the events described as if the child were giving the statements on the videotape in open court. An adopted videotaped statement should, together with the viva voce evidence given at trial, comprise the whole of the evidence‑in‑chief of the complainant. Any questions which arise concerning the circumstances in which the video was made, the veracity of the witnesses’ statements, or the overall reliability of the evidence, are matters for the trier of fact to consider in determining how much weight the videotaped statement should be given. Parts of the video contradicted during cross‑examination are not rendered inadmissible but may well be given less weight in the final determination of the issues. The fact that the video is contradicted in cross‑examination does not necessarily mean that the video is wrong or unreliable.

The standard for assessing credibility which would be applied to an adult’s evidence is not always appropriate in assessing a young child’s credibility. The peculiar perspectives of children can affect their recollection of events and the presence of inconsistencies, especially those related to peripheral matters, should be assessed in context. A skilful cross‑examination is almost certain to confuse a child, even if he or she is telling the truth, and that confusion can lead to inconsistencies in the child’s testimony.

A voir dire must be held in order to review the contents of the tape to ensure that the statements within it conform to the rules of evidence. At this stage, the trial judge may exercise his or her discretion to exclude the videotaped statement if prejudice from its admission would outweigh its probative value. The discretionary power to exclude evidence should not be used to determine issues of weight. Where there is conflicting evidence and opinion as to how useful the videotaped statement may be in providing an honest and complete account of the complainant’s story, the statement should be admitted unless the trial judge is satisfied that it could interfere with the truth‑finding process.

Although it is preferable for the police to refrain, to the extent that it is reasonably possible, from interviewing the complainant before the videotaped statement is recorded, the ultimate reliability of the videotaped statement is not a question which should be resolved at the voir dire. The fact that a pre‑video interview was conducted, and any effect it may have had on the subsequently videotaped statement, should go to the weight to be accorded the evidence and not to its admissibility. The police officers conducting the videotaped interview should pose simple, open‑ended questions to the child. In some situations, however, it will be necessary and appropriate to ask leading questions.

No substantial wrong resulted from the failure to hold a voir dire. Since the complainant adopted the videotape’s contents and absent evidence that the trial judge would or should have exercised the residual discretion to exclude the evidence because of unfairly prejudicial effects its admission would have on the respondent, the videotaped statement was properly admitted.

Cases Cited

Applied: R. v. Meddoui (1990), 1990 CanLII 2592 (AB CA), 61 C.C.C. (3d) 345; not followed: R. v. Toten (1993), 1993 CanLII 3427 (ON CA), 83 C.C.C. (3d) 5; considered: R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419; referred to: Deacon v. The King, 1947 CanLII 38 (SCC), [1947] S.C.R. 531; R. v. Antoine, 1949 CanLII 475 (BC CA), [1949] 1 W.W.R. 701; McInroy v. The Queen, 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588; R. v. Smith (1985), 1985 ABCA 305, 66 A.R. 195; R. v. Atikian (1990), 1990 CanLII 6670 (ON CA), 62 C.C.C. (3d) 357; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740; Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811; R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30; R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122; R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525; R. v. Buric, 1997 CanLII 380 (SCC), [1997] 1 S.C.R. 535.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 715.1 [ad. R.S.C., c. 19 (3rd Supp.), s. 16].

Authors Cited

Bala, Nicholas and Hilary McCormack. “Accommodating the Criminal Process to Child Witnesses: L. (D.O.) and Levogiannis” (1994), 25 C.R. (4th) 341.

Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing Co., 1990, “adopt”.

Canada. House of Commons Debates, 2nd Sess., 33rd Parl., vol. I, 1986, November 4, 1986 (Hon. Bob Kaplan), p. 1040.

Flin, Rhona and J. R. Spencer. “Do Children Forget Faster?”, [1991] Crim L.R. 189.

Lathi, . B. “Sex Abuse, Accusations of Lies, and Videotaped Testimony: A Proposal for a Federal Hearsay Exception in Child Sexual Abuse Cases” (1997), 68 U. Colo. L. Rev. 507.

McGrath, Mike and Carolyn Clemens. “The Child Victim as a Witness in Sexual Abuse Cases” (1985), 46 Mont. L. Rev. 229.

Perry, Nancy Walker and Bradley D. McAuliff, “The Use of Videotaped Child Testimony: Public Policy Implications” (1993), 7 Notre Dame J.L. Ethics & Pub. Pol’y 387.

APPEAL from a judgment of the Ontario Court of Appeal (1996), 1996 CanLII 1364 (ON CA), 88 O.A.C. 397, [1996] O.J. No. 379 (QL), setting aside a conviction by Lane J. Appeal allowed.

Christine Bartlett‑Hughes, for the appellant.

Christopher Hicks, for the respondent.

//Cory J.//

The judgment of the Court was delivered by

[1] Cory J. -- Section 715.1 of the Criminal Code, R.S.C., 1985, c. C-46, provides that if a videotape is made within a reasonable time after the offence it will be admissible in evidence if the young complainant adopts it when testifying. The appellate courts of Alberta and Ontario have given different meaning to the word “adopted”. What constitutes the adoption of a videotape statement is the first and paramount issue that must be resolved in this appeal. The second is a consideration of what effect, if any, subsequent contradictory evidence of the complainant will have upon the admissibility of the videotape statement.

Factual Background

[2] The respondent was convicted of touching his daughter for a sexual purpose. At the time of the offence the little girl was just six years old. At that time, the complainant was living with her mother and younger brother. The respondent had separated from the complainant’s mother some years earlier.

[3] On the evening of the incident, the respondent visited the complainant’s mother in an attempt to reconcile with her but his offers were rejected. Eventually the respondent, as he had done on other occasions, went to sleep in the complainant’s bed. The next morning the complainant told her mother that the respondent had touched her “privates” while he was in bed with her. That evening, police spoke to the complainant and her mother and took them to the police station. The police conducted an initial interview with the complainant and then videotaped her statement.

[4] In that videotape, S.D. (the complainant) told the police officer that on the previous night, she had been asleep in bed with her mother when the respondent, banging on the door, woke them up. She stated that her mother left the room and the respondent went to sleep with her in her bed. S.D. said that the respondent touched her “around there, inside” and gestured to her genital area. She also stated that, although neither of them said anything, she knew her father was awake because she saw him. She stated that the respondent had been wearing his underwear. When asked how they had been lying, S.D. said she was on her side and her father was on his back. She also agreed with the officer’s suggestion that, after touching her, the respondent had put his hand on his own privates.

[5] At trial, the complainant was shown the videotaped statement following her examination‑in‑chief. The complainant identified herself in the videotape, confirmed that she made the statements on the videotape and that they were true. The trial judge ruled that the complainant had adopted the videotaped statement and admitted it as evidence pursuant to s. 715.1 of the Code. On cross‑examination the complainant made statements which contradicted in part the videotaped statements. For instance, she testified that the respondent was wearing pants and a shirt in bed and that she could not tell whether the respondent was awake or asleep when he touched her.

[6] The respondent was convicted by Lane J. of the Ontario Court (Provincial Division) and sentenced to 15 months in custody. The Ontario Court of Appeal (1996), 1996 CanLII 1364 (ON CA), 88 O.A.C. 397, overturned that decision and directed a new trial at the discretion of the Crown. The Crown was granted leave to appeal to this Court, [1996] 3 S.C.R. xii.

[7] On this appeal, upon the conclusion of oral argument, the judgment of the Court of Appeal was set aside, and the decision of Lane J. convicting the respondent, C.C.F. was restored with reasons to follow.

Relevant Statutory Provision

[8] Criminal Code, R.S.C., 1985, c. C‑46, s. 715.1

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.

Judgments Below

Ontario Court (Provincial Division)

[9] Lane J. noted that the requirements of s. 715.1 had been met and that the videotaped statement was properly admitted. Next, she considered the appropriate weight to be given to the videotape. She carefully noted that the motive of the child to falsify and the nature of questions posed during the videotaped interview must be considered. Nonetheless she placed considerable weight on the videotape. With respect to the essential elements of the offence recounted in it, she was satisfied that the complainant told her story in a spontaneous manner in response to “open‑ended” questions. The only question that appeared to be leading was whether the respondent had touched his own genitals after touching the complainant. Lane J. refused to make a finding of fact in that regard. However, she found that the essential facts of what occurred had been set out in the videotape and apart from certain inconsistencies of “peripheral detail”, those facts were consistent with the complainant’s testimony at trial.

[10] With respect to the testimony S.D. gave under cross‑examination, that the respondent could have been asleep when he touched her, Lane J. observed that S.D. was very tired and yawning when she gave this evidence, which was at the end of a very long and skilful cross‑examination. Nevertheless, when asked if the respondent could have touched her by accident, the complainant was adamant that he had not. Lane J. also accepted the complainant’s statement on the video with respect to the clothes the respondent was wearing. The trial judge stated that she did not have concerns about the inconsistencies which related to peripheral detail and concluded that the videotape should be given considerable weight.

[11] Lane J. remarked that S.D.’s viva voce testimony at trial strongly reinforced the essence of the offence as it had been described initially on the videotape and that she was satisfied beyond a reasonable doubt as to the essence of the complaint. She found that the testimony of S.D. was completely consistent in the essential details of the incident and that consistency remained notwithstanding a very skilled and lengthy cross‑examination.

[12] She found the respondent guilty and sentenced him to 15 months in custody.

Ontario Court of Appeal

[13] In a brief endorsement, the Court of Appeal found that the trial judge’s failure to conduct a voir dire did not have any effect upon the trial or its resolution. The court rejected the suggestion that s. 715.1 must be read as requiring that the police should not interview the witness before videotaping. Although the nature of the interview may be examined on a voir dire to ensure fairness to the accused, it would be unreasonable to interpret s. 715.1 as requiring that the witness had never been questioned before the statement was videotaped.

[14] Respecting the videotaped evidence, the court found that the differences between what the complainant said on the tape and what she testified to at trial were material. The court held that the videotaped evidence that was later disavowed could not be considered as having been adopted under s. 715.1. Although the trial judge could have made a finding of guilt based on the sworn testimony, despite the inconsistencies with the videotape, she erred in finding the respondent guilty on the basis of the videotape, including those portions of the tape that were contradicted at trial. The contradicted evidence became inadmissible under s. 715.1 when it was disavowed in cross‑examination and, therefore, could not form the basis for the reasons leading to conviction.

[15] The conviction was set aside and a new trial was directed, at the discretion of the Crown.

Issues

[16] (1) What are the requirements for the admissibility of a videotaped statement under s. 715.1?

(2) What effect does an inconsistency between the child’s viva voce evidence and his or her videotaped statement have?

(3) Should a voir dire have been held with respect to the admissibility of the complainant’s videotaped statement?

Analysis

The Admissibility of a Videotaped Statement Under s. 715.1

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

(i) The Purpose of s. 715.1

[18] The interpretation of legislation will always be facilitated by a consideration of its aim or goal. In the case of R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, the constitutional validity of s. 715.1 was considered. The section was unanimously held to be constitutionally valid. Chief Justice Lamer, writing for six members of the Court, made this comment upon the aim and purpose of the section at p. 429:

By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makes participation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in the preservation of evidence and the discovery of truth.

[19] It will be self‑evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The younger the child, the more pronounced will this be. Indeed to state this simply expresses the observations of most Canadians. It is a common experience that anyone, and particularly children, will have a better recollection of events closer to their occurrence than he or she will later on. (See, e.g., Rhona Flin and J. R. Spencer, “Do Children Forget Faster?”, [1991] Crim. L.R. 189, at p. 190.) It follows that the videotape which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial. Thus the section enhances the ability of a court to find the truth by preserving a very recent recollection of the event in question.

[20] There is another aspect of the section that cannot be ignored. Any kind of assault on a child may be traumatic. Assaults of a sexual nature are still more likely to have a serious deleterious effect. This traumatic effect will be greater still when the perpetrator is a parent, guardian or person in authority. Recalling the events will be extremely difficult for every child and the more sensitive the young person, the greater will be the difficulty experienced. It follows that anything that can be done to ease the traumatic effect upon a child should be encouraged. Thus a record of events made in more informal and less forbidding surroundings than a courtroom will serve to reduce the likelihood of inflicting further injury upon the child witness.

[21] It can thus be seen that the primary goal of the section is to create a record of what is probably the best recollection of the event that will be of inestimable assistance in ascertaining the truth. The video record may indeed be the only means of presenting a child’s evidence. For example, a child assaulted at the age of three or four years may have very little real recollection of the events a year or two later when the child is attempting to testify at trial. Justice L’Heureux‑Dubé in her minority reasons in L. (D.O.), supra, noted the fundamental importance of having the videotape before the court. At p. 450 she stated:

Section 715.1 ensures that the child’s story will be brought before the court regardless of whether the young victim is able to accomplish this unenviable task.

[22] The important subsidiary aim of the section is to prevent or reduce materially the likelihood of inflicting further injury upon a child as a result of participating in court proceedings. This will be accomplished by reducing the number of interviews that the child must undergo and thereby diminish the stress occasioned a child by repeated questioning on a painful incident. Further, the videotaping will take place in surroundings that are less overwhelming for a child than the courtroom.

[23] Numerous Canadian academic writers have noted and stressed the goals of s. 715.1. For instance, Professor Bala stated, in Nicholas Bala and Hilary McCormack, “Accommodating the Criminal Process to Child Witnesses: L. (D.O.) and Levogiannis” (1994), 25 C.R. (4th) 341, at p. 343:

One of the main purposes of this provision is to ensure that the courts have access to the best description possible of the events, as a child is more likely to have an accurate and complete memory of the events when the videotape is made, than several months later at the time of trial. Children are also more likely to fully remember and relate often painful memories in a relatively relaxed interview than in the strange, stressful, and formal court environment.

[24] This was the same approach which had been taken before s. 715.1 came into force. During the second reading of Bill C‑15, An Act to Amend the Criminal Code and the Canada Evidence Act, the Hon. Bob Kaplan indicated that one of the purposes of s. 715.1 would be to capture the child’s story at a time when it is fresh in her mind. He stated at p. 1040:

. . . videotaping a complainant at a time closer to the incident will reflect more accurately the vocabulary and life experience of a child. The evidence a child gives in court will be much different four or five years later because of the evolution of the child, because of his or her greater understanding of the sexual behaviour of adults and because of his or her own sexuality. That in itself is an argument for admitting a videotape. . . .

(House of Commons Debates, 2nd Sess., 33rd Parl., vol. I, 1986, November 4, 1986.)

[25] With a view to achieving the same goals as those sought by the Canadian legislators many jurisdictions in the United States have enacted statutes making videotaped interviews with children admissible in criminal proceedings. It is usually a precondition for admissibility that the child be available for cross‑examination at trial. This is often effected by means of a live video‑link. Some schemes provide for a “video deposition” when the child is unavailable to give evidence at trial. In this type of legislation, the videorecording is made outside the courtroom in the presence of counsel and the defendant. The defendant is given an opportunity to cross‑examine the child at that time. The video is then admitted at trial in lieu of the testimony of the child. However, several states permit the child to be called as a witness at trial despite the admission of the videotape.

[26] Legislation of this type was first enacted in Montana in 1977 with the stated aim of reducing the trauma that young victims of sexual abuse face when thrust into the criminal justice system (Mike McGrath and Carolyn Clemens, “The Child Victim as a Witness in Sexual Abuse Cases” (1985), 46 Mont. L. Rev. 229, at p. 230). By 1994, 37 states allowed videotaped testimony by children in child abuse cases, and 30 states permitted children who were allegedly victims of abuse to testify by means of one‑way or two‑way closed circuit television. See Diana B. Lathi, “Sex Abuse, Accusations of Lies, and Videotaped Testimony: A Proposal for a Federal Hearsay Exception in Child Sexual Abuse Cases” (1997), 68 U. Colo. L. Rev. 507, at p. 531 (f.n. 126).

[27] Many of these statutes have been challenged by defendants as violating their constitutional right to confront their accusers guaranteed by the Sixth Amendment. However, most courts have upheld these innovations because of the significant emotional distress that face‑to‑face confrontation can cause children which in turn affects their ability to testify and thus impairs the truth‑seeking process. See Lathi, supra, at p. 531.

[28] The reasons advanced in the U.S. Courts to support the use of videotaped statements are reflected in those advanced by Canadian courts and academic writers. First, videotaping may reduce the number of pretrial interviews required of the child. Second, videotaping the statements lessens the chance of inflicting further harm on the child by, at least, lessening the stress at trial. Third, videotaping may increase the accuracy of the testimony since the child may feel more comfortable and be more forthcoming in the atmosphere in which the video is recorded. Fourth, the admission of a videotape may prompt a guilty plea by the defendant and eliminate entirely the need for the child to appear as a witness in court. Finally, videotaping preserves an early account of the alleged events including the gestures and facial expressions accompanying the child’s initial statement (Nancy Walker Perry and Bradley D. McAuliff, “The Use of Videotaped Child Testimony: Public Policy Implications” (1993), 7 Notre Dame J.L. Ethics & Pub. Pol’y 387). As the authors state, at p. 420:

The standard courtroom setting is particularly likely to induce trauma among child witnesses; it also is likely to impair their communicative abilities. Under such circumstances, the truth‑seeking function of the court may be vitiated if videotaped testimony is not allowed in cases involving child witnesses.

[29] The experience in the United States emphasizes and confirms the two primary purposes of s. 715.1. First, it enhances the fundamental truth-seeking role of the courts. Second, it reduces the likelihood of inflicting further injury on a child as a result of involvement in the criminal process. With those goals in mind, what is the appropriate test for determining whether a young person has adopted the videotaped statement.

(ii) The Test for Adoption

[30] Section 715.1 provides that a videotaped statement is admissible in evidence if the complainant “adopts the contents of the videotape” while testifying. What meaning should be attributed to that phrase?

[31] The law of evidence has developed rough guidelines for determining whether a witness has adopted a prior inconsistent statement. Originally, prior inconsistent statements were admissible solely for attacking a witness’ credibility, even in circumstances where the witness adopted it as true. However, over time, the rule has been broadened. If the witness admitted the prior statement was true, it was considered to have been adopted and would be admissible for the truth of its contents (Deacon v. The King, 1947 CanLII 38 (SCC), [1947] S.C.R. 531). Initially, the conditions that had to exist before a witness could “adopt” a prior inconsistent statement were not considered by the courts. Instead, judges relied upon their assessment of the witness’ demeanor and reaction upon being confronted with a prior statement to determine whether the witness adopted it as true.

[32] However, in R. v. Antoine, 1949 CanLII 475 (BC CA), [1949] 1 W.W.R. 701 (C.A.), it was held that adoption occurs when the witness admits the truth of the statement under oath. This was the approach taken by Estey J. in McInroy v. The Queen, 1978 CanLII 175 (SCC), [1979] 1 S.C.R. 588. He found, at p. 608, that the question to be resolved was whether the witness had “adopted it in the witness box as being the truth as she now sees it”. In R. v. Smith (1985), 1985 ABCA 305, 66 A.R. 195, the Alberta Court of Appeal held that a previous inconsistent statement is adopted if the witness accepts it as being true at the moment she is testifying. Lieberman J.A. stated that it was insufficient for the witness to affirm that when she gave the statement she was being candid. The Ontario Court of Appeal applied a similar approach to the adoption of prior inconsistent statements in R. v. Atikian (1990), 1990 CanLII 6670 (ON CA), 62 C.C.C. (3d) 357, at p. 364:

The jury had to understand that before they could find that the witness had adopted the statement and that they could use what was said in the statement as proof of the truth of the facts stated in it, they had to be satisfied that she acknowledged that she made the statement and that it was true, or, of course, that she made part of the statement and that that part of it was true. And so, she adopted it as part of her testimony under oath at the trial.

[33] In the context of prior inconsistent statements the term “adoption” is used to distinguish between the situation presented by a witness who admits making a prior inconsistent statement but not its truth and that of a witness admitting not only that the prior statement was made but also that it is true. It is only in the latter case that the statement is “adopted” and admissible for the truth of its contents. The question remains whether the test for adopting a prior inconsistent statement should be applied to the videotaped statement contemplated by s. 715.1.

[34] Black’s Law Dictionary (6th ed. 1990), defines “adopt” as follows:

To accept, appropriate, choose, or select. To make that one’s own (property or act) which was not so originally.

[35] Obviously the term “adoption” is capable of several meanings. However, in the context of s. 715.1 the proper interpretation should be one which accords with its aim and purpose. At this point it must be observed that the French version of the Code uses in lieu of the word “adopts” the word “confirme” which may not have precisely the same meaning as “adopts”. Nonetheless the word “confirme” in s. 715.1 must be given the same meaning as that attributed to “adopts” in these reasons. It is the meaning which best reflects the purpose of the section.

[36] The Alberta and Ontario Courts of Appeal have taken different approaches to the adoption of videotaped evidence. In R. v. Meddoui (1990), 1990 CanLII 2592 (AB CA), 61 C.C.C. (3d) 345, the Alberta Court of Appeal found that a witness “adopted” her statement within the meaning of s. 715.1 when she recalled giving the statement and testified that she was then attempting to be honest and truthful. It was held that the complainant need not have a present recollection of the events discussed. The decision approved the use of the videotape as evidence of the events described, even if the complainant is unable to recall the events discussed in the tape which formed the basis for the charge.

[37] In Meddoui, it was found that s. 715.1 modified the rule concerning past recollection recorded which required that the witness have no present memory of the events described in the record before it could be admitted for the truth of its contents. This rule was developed to prevent the admission of prior consistent statements which were deemed irrelevant. Section 715.1 was found to be an exception to the rule. Further it was recognized that a very early account can be of more probative value than present testimony, particularly if the present memory is faulty or it is difficult for the witness to articulate it in court. It was held that a present assurance of past honesty would be a sufficient indication of trustworthiness to warrant the admission of the statement.

[38] In R. v. Toten (1993), 1993 CanLII 3427 (ON CA), 83 C.C.C. (3d) 5, the Ontario Court of Appeal rejected the Meddoui interpretation of “adopts” in favour of a narrower one. It was held that in order to adopt the contents of a videotaped statement, the child complainant must be able, based on a present memory of the events referred to in the videotape, to verify the accuracy and contents of the statement. The child must not only acknowledge making the statement but also the truth of its contents. This interpretation of “adopts” was based upon the more traditional approach which had been used in the context of prior inconsistent statements.

[39] Should the Meddoui decision or the Toten decision be applied in defining s. 715.1 or should portions of each form the basis for determining if there has been “adoption” of the videotaped statement?

[40] In light of the clear aim and purpose of s. 715.1, I cannot accept the Ontario Court of Appeal position that the same meaning of adoption should be used in the context of the videotaped statements of a child as was applied to prior inconsistent statements. Adoption is not a term with a static legal meaning which must apply in all circumstances. The strict adoption test for prior inconsistent statements was necessary to ensure a reasonable degree of reliability before allowing the statements to be admitted for the truth of their contents. However, s. 715.1 has built‑in guarantees of trustworthiness and reliability which eliminate the need for such a stringent requirement for adoption. Further, a lack of present memory or an inability to provide testimony at trial regarding the events referred to in the videotape as a result of the youthfulness and the emotional state of the complainant increases the need to consider the videotaped statement.

[41] The test set out in Toten would prevent a child who has little, or no memory of the events from “adopting” the video and it would therefore be inadmissible under s. 715.1. However, it is precisely in this situation that the video is most needed. Children, particularly younger ones, are prone to forget details of an event with the passage of time. A videotape made shortly after the event is more likely to be accurate than the child’s viva voce testimony, given months later, at trial. It is quite possible that a young child will have a recollection of going to the police station and making the statement and of her attempt to be truthful at the time yet have no memory of the unpleasant events. This is particularly true where the elapsed time between the initial complaint and the date of trial is lengthy. If effect is to be given to the aims of s. 715.1 of enhancing the truth-seeking role of the courts by preserving an early account of the incident and of preventing further injury to vulnerable children as a result of their involvement in the criminal process, then the videotape should generally be admitted.

[42] In Toten, it was suggested that the videotape would be useful in circumstances where a child has a memory of events but is unable to articulate them. In my view, this approach is too narrow. It fails to take into account the broader purposes of the legislation. Trial judges do not expect children to be perfectly articulate. They know that the examination‑in‑chief of a child will not precisely match the ideal narrative form of an adult’s testimony. Indeed, the trial judge has the discretion to permit counsel to use leading questions on examination‑in‑chief in order to get the child’s evidence before the trier of fact. Children are vulnerable victims and for a number of reasons their testimonial capacities may range from a complete inability to articulate recalled events to an ability to recount some but not all of the events. In any of these circumstances, the admission of a videotaped statement would assist a court in arriving at the truth. It would be inappropriate to construe the section as one which only addresses the “inarticulate complainant”.

[43] Although I agree with much of the reasoning in Meddoui I cannot accept the suggestion put forward that when a witness has an independent present memory of the events the videotape adds nothing to the testimony. The admission of the videotaped statements made shortly after the events in issue may be of great assistance in augmenting a child’s testimony at trial by the account of events given in the statement when the incidents were fresh in the child’s mind. In Toten, at p. 28, it was wisely observed that “[t]he prior statement, combined with the complainant’s in‑court evidence, may well afford a more complete version of the complainant’s evidence.”

[44] I recognize that the Meddoui approach to “adoption” gives rise to another problem. Specifically, a witness who cannot remember the events cannot be effectively cross‑examined on the contents of his or her statement, and therefore the reliability of his or her testimony cannot be tested in that way. However, it was recognized in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, and R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, that cross‑examination is not the only guarantee of reliability. There are several factors present in s. 715.1 which provide the requisite reliability of the videotaped statement. They include: (a) the requirement that the statement be made within a reasonable time; (b) the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor, and assess the personality and intelligence of the child; (c) the requirement that the child attest that she was attempting to be truthful at the time that the statement was made. As well, the child can be cross‑examined at trial as to whether he or she was actually being truthful when the statement was made. These indicia provide enough guarantees of reliability to compensate for the inability to cross‑examine as to the forgotten events. Moreover, where the complainant has no independent memory of the events there is an obvious necessity for the videotaped evidence. In Meddoui, it was recommended that in such circumstances, the trier of fact should be given a special warning (similar to the one given in Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811) of the dangers of convicting based on the videotape alone. In my view, this was sage advice that should be followed.

The Effect of an Inconsistency Between the Child’s Viva Voce Testimony and Her Videotaped Statement

[45] The test of adoption should not be the final determination of reliability but rather a means of ascertaining whether the videotape meets the threshold degree of reliability required to admit it for the truth of its contents. The adoption of the videotape renders the evidence admissible pursuant to s. 715.1. Once the trial judge rules that the statement has been adopted, the video becomes the evidence of the events described as if the child were giving the statements on the videotape in open court (L. (D.O.), supra, at p. 458). An adopted videotaped statement should, together with the viva voce evidence given at trial, comprise the whole of the evidence‑in‑chief of the complainant.

[46] After the videotaped evidence has been admitted, any questions which arise concerning the circumstances in which the video was made, the veracity of the witness’ statements, or the overall reliability of the evidence, will be matters for the trier of fact to consider in determining how much weight the videotaped statement should be given.

[47] If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not render those parts inadmissible. Obviously a contradicted videotape may well be given less weight in the final determination of the issues. However, the fact that the video is contradicted in cross‑examination does not necessarily mean that the video is wrong or unreliable. The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video more reliable than the evidence elicited at trial. In R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55, Wilson J. stated that

a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. . . . While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

[48] She concluded that, although each witness’ credibility must be assessed, the standard which would be applied to an adult’s evidence is not always appropriate in assessing the credibility of young children. This approach to the evidence of children was reiterated in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 132‑34. There McLachlin J. acknowledged that the peculiar perspectives of children can affect their recollection of events and that the presence of inconsistencies, especially those related to peripheral matters, should be assessed in context. A skilful cross‑examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistencies in her testimony. Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to the weight which should be attached to the videotape and not to its admissibility.

[49] In the case at bar, Lane J. properly viewed the inconsistencies as a matter going to weight. She applied the principles from B. (G.), supra, and W. (R.), supra, in holding that the minor inconsistencies regarding peripheral details were not of “great significance” and that they should not preclude her from relying on the videotaped statement as true. Furthermore, she found that the complainant’s evidence‑in‑chief and cross‑examination were consistent with the evidence she gave in her videotaped statement with respect to the essential elements of the assault. As Lane J. noted:

. . . I am satisfied beyond a reasonable doubt as to the essence of her complaint. As I have said before, she was totally consistent with respect to the essential details and that consistency remained notwithstanding a very skilled cross‑examination.

Lane J. was entitled to prefer the videotaped evidence to that elicited on cross‑examination. Her decision was not unreasonable and should not be disturbed.

Should a Voir Dire Have Been Held?

[50] At trial, the videotape was shown to the complainant and she testified that it was her in the video, that she had made the statements it contained and that they were true. Lane J. then ruled that the requirements of s. 715.1 had been met and that the videotaped evidence was admissible for the truth of its contents. It is apparent that no formal voir dire was held with respect to the admissibility issue.

[51] The minority reasons of L’Heureux‑Dubé J. in L. (D.O.), supra, indicate that, prior to the introduction of a videotaped statement under s. 715.1, a voir dire must be held in order to review the contents of the tape to ensure that the statements within it conform to the rules of evidence. I agree with this conclusion. Both L. (D.O.) and Toten, supra, indicate that, at this stage, the trial judge may exercise his or her discretion to exclude the videotaped statement if prejudice from its admission would outweigh its probative value. The discretion to exclude the videotape is limited to those cases where its admission would operate unfairly to the accused. Those cases will be relatively rare. (See Toten, at p. 32; R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, at p. 548.) L’Heureux‑Dubé J. in L. (D.O.), at p. 463, suggests that there are a number of factors which should be taken into account in exercising this discretion:

(a) The form of questions used by any other person appearing in the videotaped statement;

(b) any interest of anyone participating in the making of the statement;

(c) the quality of the video and audio reproduction;

(d) the presence or absence of inadmissible evidence in the statement;

(e) the ability to eliminate inappropriate material by editing the tape;

(f) whether other out‑of‑court statements by the complainant have been entered;

(g) whether any visual information in the statement might tend to prejudice the accused (for example, unrelated injuries visible on the victim);

(h) whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant;

(i) whether the trial is one by judge alone or by a jury; and

(j) the amount of time which has passed since the making of the tape and the present ability of the witness to effectively relate to the events described.

[52] A consideration of these factors would help to ensure that the contents of the statement generally conform to the rules of evidence and that the statement has probative value. The discretionary power to exclude evidence should not be used to determine issues of weight. In cases where there is conflicting evidence and opinion as to how useful the videotaped statement may be in providing an honest and complete account of the complainant’s story, the statement should be admitted unless the trial judge is satisfied that it could interfere with the truth‑finding process. (See Toten, at pp. 32‑33.)

[53] The respondent argued in this appeal that the pre‑video interview conducted by the police officers may have tainted the videotaped evidence and that this possibility ought to have been canvassed in a voir dire. Although I agree that it would have been preferable for the police to have refrained, to the extent that it was reasonably possible, from interviewing the complainant before the videotaped statement was recorded, the ultimate reliability of the videotaped statement is not a question which should be resolved at the voir dire. The fact that a pre‑video interview was conducted, and any effect it may have had on the subsequently videotaped statement, will go to the weight which should be accorded the evidence, not its admissibility. It would be preferable if the police officers conducting the videotaped interview would pose simple, open-ended questions to the child. It must be recognized that in some situations it will be necessary and appropriate to ask leading questions. Recently, an Ontario Court of Appeal decision was upheld in which the possibility of witness tainting was ruled a question of weight not admissibility: see R. v. Buric, 1997 CanLII 380 (SCC), [1997] 1 S.C.R. 535.

[54] Wherever evidence is tendered for admission under s. 715.1 of the Code, a formal voir dire must be held to determine whether the requirements of the section are met and to ensure that the videotape conforms with the rules of evidence. However, no substantial wrong resulted from Lane J.’s failure to hold a voir dire. Since S.D. duly adopted the contents of the videotape and there is no evidence suggesting that Lane J. would or should have exercised her residual discretion to exclude the evidence because of unfairly prejudicial effects its admission would have on the respondent, the videotaped statement was properly admitted.

[55] If it can reasonably be done, a sensitive judicial system should, with the aim of s. 715.1 in mind, interpret the section in a manner that will attempt to avoid further injury to children resulting from their participation in the criminal trial process. That must of course be done within the balanced bounds of always ensuring that the accused enjoys the fundamental right to a fair trial. The definitions and procedures set out in these reasons strive to achieve these aims.

Appeal allowed.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitors for the respondent: Hicks, Block, Adams, Derstine, Toronto.

[^1]: Sopinka J. joined in the judgment of October 16, 1997 but took no part in these reasons for judgment.