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Evidence - Witness - Videotaped. R. v. P.K.
In R. v. P.K. (Ont CA, 2023) the Court of Appeal considered the evidentiary use of a child's videotaped testimony [under CCC 715.1]:B. THE INSTRUCTION ON THE APPELLANT’S VIDEOTAPED STATEMENT
[38] The complainant gave a videotaped statement that was admitted at trial under s. 715.1 of the Criminal Code. She also testified.
[39] In the course of his instructions, the trial judge told the jury:You may also consider what [the complainant] said in the videotape for another purpose. It may help you decide whether or how much you will believe or rely upon [the complainant’s] testimony in this case. [40] The appellant submits that the above-quoted instruction invited the jury to use the video statement, to the extent that it was consistent with the complainant’s testimony, to bolster the credibility of her in-court testimony.
[41] Statements admitted under s. 715.1 are not treated as prior statements made by a witness. Instead, “the statement becomes part of the child’s in-court testimony as if the child were giving the statements on the videotape in open court”: R. v. F. (C.C.), [1997] 3 S.C.R. 183, at para. 45; R. v. L.O., 2015 ONCA 394, at 43.
[42] Statements admitted under s. 715.1 are admissible for their truth because their proximity to the relevant events renders them sufficiently reliable to warrant admissibility. The statements are best characterized as part of the complainant’s evidence in-chief, and not as prior consistent or inconsistent statements.
[43] To the extent the trial judge’s instructions suggest a mischaracterization of the s. 715.1 statement as a prior statement of the complainant, that mischaracterization had no substantive effect on the instruction. The jury was properly told of the use it could make of the videotaped statement. They were told it was admissible for its truth, and it could be used in assessing the reliability of the complainant’s in-court testimony. The jury were also told to consider the extent to which the s. 715.1 statement was inconsistent with the complainant’s testimony in the witness box. All three instructions are correct: L.O., at paras. 40-44.
[44] The jury were properly instructed on the use of the s. 715.1 video statement.
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