Jun 21, 2018

R v WDAZ, 2018 BCCA 180

The Issue

Can a complainant adopt her s715.1 statement if her viva voce evidence is inconsistent with her video statement; and what impact do leading questions have on admissibility of such a statement.

The Answer

The test for admissibility of a s715.1 statement was set out by the court:

The video statement is admitted on the basis that young children cannot be expected to clearly remember events that occurred months or years prior to trial and the statement “will almost inevitably reflect a more accurate recollection of events than will testimony given later”: R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183 at para. 19. This is especially true when the child retains no memory of the incident and the video is the only way to bring the child’s evidence before the court: F.(C.C.) at para. 21.


To be admissible at trial, the statement must be properly adopted, meaning the child must recall giving the statement and testify that she intended to be honest when she gave the statement: F.(C.C.). The child does not need to remember the specific events discussed in the statement, although the inability to cross-examine the child on this evidence should necessitate a warning to the trier of fact about convicting on this evidence alone: F.(C.C.) at para. 44. [@52-53]


The Fine Print

The Court of Appeal upheld the trial judge’s ruling admitting the statement.

In this case, the use of leading questions within the s. 715.1 statement went to the issue of weight to be given to the evidence at trial and not to the admissibility of the statement. The judge did not err by failing to address the issue of weight at this stage. In my view, he properly exercised his discretion to admit the s. 715.1 statement as evidence at the trial. This decision is reasonable and entitled to deference. [@64]