Criminal Code of Canada - section 715.2(1) - Evidence of victim or witness who has a disability

section 715.2(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the use of video recordings made by victims or witnesses with disabilities as evidence in court if the person adopts the contents of the recording while testifying, unless the presiding judge or justice believes it would interfere with the administration of justice.

SECTION WORDING

715.2(1) In any proceeding against an accused in which a victim or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

EXPLANATION

Section 715.2(1) of the Criminal Code of Canada pertains to proceedings where an accused is being tried for a criminal offence with a victim or witness who may experience difficulty in communicating their evidence due to a mental or physical disability. In these cases, evidence can be presented through a video recording that was made within a reasonable time after the alleged offence. This video recording contains a statement from the victim or witness describing the act(s) in question. The admissibility of the video recording is subject to the victim or witness adopting its contents while testifying. This means that they attest to the accuracy of the video recording and that its contents represent their testimony. Unless the presiding judge or justice believes that the admission of this video recording would interfere with the proper administration of justice, the evidence contained within the video recording is admissible in court. This section is particularly relevant for cases where the victim or witness may have trouble communicating their evidence effectively. This may be due to a myriad of reasons such as a physical or mental disability or trauma. In these cases, the admissibility of video recordings ensures that their evidence is still heard, and that their experiences are taken into account, which would otherwise not be possible. Overall, Section 715.2(1) acknowledges the barriers for some victims or witnesses in the judicial process, ensures that these individuals are not disadvantaged due to their disabilities, and reinforces equitable treatment of witnesses in criminal proceedings.

COMMENTARY

Section 715.2(1) of the Criminal Code of Canada is a provision that allows for the admissibility of video recordings made by witnesses who have a mental or physical disability and may have difficulty communicating evidence in court. The section provides a mechanism for these video recordings to be used as evidence if certain criteria are met. The section recognizes that witnesses who have a disability may find it difficult or even impossible to give evidence in court due to their condition. This could include a range of disabilities such as speech impairments, cognitive impairments, sensory impairments, or physical disabilities. These witnesses may still be able to communicate their evidence, but may require specialized assistance or accommodations, such as interpreters, communication devices, or support persons. However, even with these accommodations, some witnesses may still struggle to communicate certain aspects of their evidence or may be overwhelmed by the court process. This is where the provision for video recordings comes in. Video recordings have the potential to capture the witness's evidence in a more relaxed and familiar setting, such as their own home or a support agency, where they may feel more comfortable and at ease. The recording can then be played in court as evidence, which may be less stressful and more manageable for the witness. In addition, the recording can be reviewed and rehearsed before the court date to ensure that it accurately captures the evidence. Of course, there are limitations and conditions to using video recordings as evidence in court. The recording must be made within a reasonable time after the alleged offence, which means that it should be made as soon as possible after the event to ensure that it is fresh and accurate. The victim or witness must also testify in court and adopt the contents of the video recording, which means that they must confirm that the recording accurately reflects their evidence. This ensures that the recording is not being used as a substitute for the witness's testimony, but rather as a complementary tool to enhance their evidence. The section also recognizes that there may be situations where admitting the video recording as evidence would interfere with the proper administration of justice. This could occur if, for example, the video recording is not reliable, is prejudicial, or would be unfairly advantageous to one side. In such cases, the presiding judge or justice has the discretion to exclude the recording. Overall, section 715.2(1) provides a useful mechanism for witnesses with disabilities to give evidence in court. It recognizes the challenges that these witnesses face, and seeks to provide them with a more accessible and effective means of communicating their evidence. It is ultimately an important step towards ensuring that our justice system is inclusive and equitable for all people, regardless of their disability.

STRATEGY

Section 715.2(1) of the Criminal Code of Canada allows for video recordings to be used as evidence in proceedings against an accused, where a victim or witness may have difficulty communicating verbally due to a mental or physical disability. This section of the Criminal Code can present both advantages and challenges for parties involved in criminal proceedings. Some of the strategic considerations when dealing with this section of the Criminal Code are discussed below: Admissibility of Video Recording: The video recording must be made within a reasonable time after the alleged offense, and the victim or witness must adopt the contents of the recording while testifying. The video recording must be properly authenticated as well. The first strategic consideration, therefore, is to ensure that the video recording is admissible in court. The parties must carefully analyze the contents of the video recording and ensure that it is not hearsay evidence. The victim or witness may describe events that they heard from others, but if they did not observe the events themselves, then the contents may not be admissible. The parties must also consider any statements made by the victim or witness in the video recording that may be prejudicial to the accused, as such statements may have an impact on the admissibility of the recording. The Right to a Fair Trial: The second strategic consideration is balancing the right of a fair trial with the objectives of Section 715.2(1). The right to a fair trial is a fundamental principle of Canada's criminal justice system, and the court must ensure that the accused receives a fair trial, including the right to confront and cross-examine witnesses. Although in the case at hand, the witness may have difficulty responding verbally, they still have the right to be confronted and cross-examined. Consequently, the parties must ensure that the accused's right to confront and cross-examine the victim or witness is not compromised by the use of the video recording. A cross-examination may reveal inconsistencies in the victim's testimony, and the accused's counsel must have an opportunity to explore these inconsistencies. Trial Strategy: Another strategic consideration is how to use the video recording as part of trial strategy. The use of a video recording in court can draw significant attention to the victim or witness testimony, highlighting the critical details of the alleged offense. The defense may use the video recording to question the credibility of the victim or witness, but this strategy must be considered carefully, as it can also have an unfavorable impact on the defense case. The parties must also consider whether to call the victim or witness to testify in court, or to rely solely on the video recording. In many cases, it is best to call the victim or witness to testify, to demonstrate the impact of the alleged offense on the witness and to give the accused the opportunity to cross-examine. Conclusion: Section 715.2(1) of the Criminal Code of Canada is a valuable tool in criminal proceedings, especially for cases where a victim or witness may have difficulty articulating their testimony. However, the strategic considerations surrounding the use of video recordings require careful consideration by parties involved in the trial. The parties must ensure that the video recording is admissible, does not compromise the accused's right to a fair trial, and strategically aligned with the objectives of the defense or prosecution.