Child Witnesses in Canada’s Criminal Justice System: Progress, Challenges, and the Role of Research

By Nicholas Bala

I started my career as a law professor teaching Family and Children’s Law in 1978. Since then, research about issues related to child abuse and child witnesses has grown enormously. Canada’s justice system has responded to this growing understanding of the extent of child sexual abuse and to increased research on both the reliability of child witnesses and the need to appropriately accommodate them with major reforms in legislation, case law, and professional practice. In this article, I will discuss some of the most important changes in law and professional practice as well as the continuing challenges faced by child witnesses, and relate those developments to some of the research, including some brief comments on my own contributions to this research and reform.

Until the 1980s: Social Denial and Legal Obstacles

Similar to the discriminatory treatment under the common law of female adult victims in sexual assault cases, laws about child witnesses, until the late 1980s, were premised on the belief that children are inherently untrustworthy and prone to fantasy. This made it difficult to prosecute cases and thus it was rare for criminal proceedings to take place for offences against children. This in turn contributed to the widespread belief that child abuse was rare. The laws for child witnesses and sexual offending against children in Canada did not change from the time of the introduction of the Criminal Code in 1892 until 1988. Children were not encouraged, or supported, to disclose abuse, and, as a result, reports of abuse were not common.

Indeed, the culture of denial, with children’s reports of abuse often being treated as lies or fantasies, meant that victims who did disclose sexual abuse were stigmatized, resulting in few disclosures. Prevailing stereotypes assumed that the perpetrators of child sexual abuse were “strangers,” though it was later discovered that the vast majority of child sexual abuse is perpetrated by persons known to children, often by persons in positions of trust (Olafson et al. 1993).

The lack of understanding and responsiveness to child abuse, in particular child sexual abuse, effectively allowed trusted adults to exploit children without being accountable or without any way of deterring them, in places like schools and juvenile institutions, and in the, now closed, residential schools for Indigenous children.

The women’s movement of the 1970s helped create an environment in which adult survivors of childhood abuse began to feel sufficient support to come forward with first-person accounts of their experiences. By the 1980s, encouraged by media reports and a growing professional sensitivity, more adult survivors began to overcome their feelings of guilt, shame, and fear to disclose what had occurred to them in childhood.

In 1981, the federal ministers of justice and national health and welfare established the Committee on Sexual Offences Against Children and Youths. Its terms of reference were to report on the “prevalence in Canada of sexual offences against children and youths.” The Committee, chaired by sociologist Robin Badgley, did a national population survey, as well as studies with juveniles and young adults in the sex trade, and engaged with police, child protection, and health professionals. The Committee also reviewed published research studies, policies, and official statistics. The two-volume Report of the Committee (the Badgley Report) was released in 1984.

The Badgley Report was the first significant Canadian research on the incidence of child sexual abuse, and made recommendations for legal and systemic reforms, including better responses by child protection and health services to child sexual abuse victims. The research included studies of reported case law, surveys of police, child protection, health care and other professionals, and a national population survey to discover the extent of child sexual abuse in Canada. Major findings of the research done by the Badgley Report included that half of all females and one-third of all males were the victim of unwanted sexual acts at some time during their lives, and that 80 percent of these acts took place during childhood or adolescence. Further, a majority of victims and their families did not seek assistance from police, child welfare, or other public services. Indeed, many of those abused in childhood and adolescence did not even disclose the abuse to their parents at the time. The Badgley Report concluded that the services, policies, and laws in place were grossly inadequate for responding to cases involving children. Although the Badgley Committee’s set of studies on child sexual abuse was the largest in Canadian history, it still did not address other major issues, such as abuse of children in schools, juvenile custody facilities, churches, and other institutions.

By the late 1980s, there was also a growing body of research, including by psychologists funded by Canada’s Social Sciences and Humanities Research Council (SSHRC), about the reliability of children’s disclosures of abuse (Yuille 1988; Peterson 2002; 2007). Researchers established that there was no basis for the legal rule that required juries to be warned that the testimony of children had “inherent frailties,” though practitioners needed to be familiar with patterns of delayed and incremental disclosures of abuse by children, and to have appropriate protocols for interviewing children about abuse allegations.

Before the late 1980s, understanding of, and responses to, institutional child abuse was woefully inadequate. Many children were abused as a result, in a wide range of child-serving agencies and institutions, not only in Canada, but globally. In 1989, the Canadian public was stunned by the disclosure of a history of child abuse at Mount Cashel Orphanage in Newfoundland and by the revelation of the systemic efforts to suppress earlier disclosures of abuse by children there. As a result, Canadians began to be more aware of the particular vulnerability of children in institutional care, especially to sexual abuse. After the initial reports about Mount Cashel, a large number of disclosures, inquiries, prosecutions, and civil lawsuits for historic sexual abuse perpetrated by staff in child-serving organizations and institutions across Canada took place, in particular in the residential schools for Indigenous children (Bessner 1998).

Reforms to Accommodate Child Witnesses: 1984–1988

With the growing awareness of the realities of abuse, it became clear that fundamental legal reforms were required to permit children to testify effectively. Informed by the Badgley Report, Parliament enacted Bill C-15 (S.C. 1987, c. 24), which came into force in 1988 with major reforms (Bala 1990) to:

Before Bill C-15 was enacted and after the new law came into force, prosecutors, child protection workers, police, and judges received professional education and training about the new legislation, and, more generally, about child sexual abuse cases. I was a witness before parliamentary committees studying Bill C-15 and involved in professional education about its provisions. The coming into force of the legislation led to support services for victims in the criminal courts being gradually introduced and the beginnings of closed-circuit television and screens being used to facilitate child testimony. Police also began to receive more training in how to interview children, use video equipment, and investigate child sexual abuse cases. After Bill C-15 came into effect, there was a significant increase in the number of cases of child sexual offences being prosecuted in Canada, and more children were testifying in criminal courts.

Increased Awareness of Child Abuse and Improved Responses: 1988–2006

In August 1987, Rix Rogers was named special advisor to the federal minister of national health and welfare, with a mandate to report on the direction of federal child sexual abuse initiatives. Rogers conducted extensive public consultations with professional policy makers, and had many emotional private meetings with adult survivors of child sexual abuse. I was a consultant to Rogers and attended some of these consultations, and assisted him in drafting his report.

As Rogers was carrying out his work, the horrors of the systemic abuse at Mount Cashel started to be reported and discussed among professionals and the public, giving an added salience to the issue of child sexual abuse. In June 1990, the Report of the Special Advisor on Child Sexual Abuse (the Rogers Report) was released. The Rogers Report built on the Badgley Report and emphasized the need to better co-ordinate the government’s responses to child sexual abuse, including addressing issues of institutional abuse of children that had not been addressed by Badgley.

The Rogers Report provided a set of recommendations for improving the investigation and prosecution of child sexual abuse cases, as well as further legislative reforms. In 1993, Parliament enacted Bills C-126 and C-128,creating new offences to protect children and to make it easier for children to give evidence.

These reforms included (Bala 1993):

While the most significant changes in the criminal justice system were a result of changes in legislation and providing services, it is notable that judges were also changing the common law approaches to child witnesses (Bala et al. 1999). In the 1990s, the common law evolved to allow greater scope to admit a child’s hearsay disclosures of sexual abuse (R v Khan, SCC, 1990) and admitting similar fact evidence of other victims to support allegations of child sexual abuse (R v C.R.B., SCC, 1990). The courts also recognized the need to assess a child’s credibility based not according to the standard of the “reasonable adult,” but by taking account of children’s capacities (R v G.B., SCC, 1990). The courts also rejected Charter challenges to the legislative reforms that accommodated child witnesses. These changes in judicial approach helped to hold the perpetrators of child sexual abuse accountable for their acts and allowed the justice system to afford greater protection to children.

The 1988 and 1993 reforms allowing screens, CCTV, videorecordings, and support persons to be used were significant, but research showed that prosecutors were reluctant to seek to use these accommodations, at least in part because they were unsure whether the court would permit them. Having them rejected by a judge would delay proceedings and upset a child who might have expected to use them (Bala et al. 2001). The research showed what was working and what was not, so that further legal and systemic reforms could be undertaken.

In 2001, a court observation study funded by the Department of Justice on child testimony in Toronto’s Old City Hall’s “JCourt,” a child-friendly courtroom, found that testifying in court remained a difficult task for children. However, the children generally fared well when permitted to testify with the aids authorized by the earlier reforms (Toronto Child Abuse Centre (now BOOST) 2001).

In the first years of the new millennium, the Department of Justice established the Victims of Crime Initiative (now the Federal Victims Strategy). Part of this program was a multi-site research project to document the perspectives of a range of key stakeholders, including victims, about how much they knew about the victim-related reforms. (Prairie Research Associates 2006). At that time, the use of testimonial aids remained limited, because of both the legislation and the adversarial culture of the criminal justice system. Because applications to use testimonial aids required the prosecutor to introduce evidence establishing that the child witness needed the particular aid to provide a full and candid account of their evidence, prosecutors often failed to do even try to use them. The Initiative also resulted in commissioning reports by experts to establish a foundation of knowledge on victims of crime. One of the most important reports was prepared by psychologist Louise Sas (Sas 2002).Sas thoroughly examined the psycho-social research on children’s developmental milestones for memory, language, and cognitive development and how these related to the criminal justice system. Her report was used for professional training and helped inform law reform efforts.

Together with a team of experimental psychologists and a victim witness worker, I did research funded by the Social Sciences and Humanities Research Council (SSHRC) about the requirement in the 1988 reforms that children who testify without being sworn needed to answer questions to explain the meaning of a “promise to tell the truth.” Young children often had difficulty with this type of abstract question, and were then ruled not competent to testify, often resulting in the charges against their abusers not proceeding. Our research established that the ability to answer this type of question is not related to whether a child actually tells the truth (Bala et al. 2001).

Parliament responded to the research about the limitations of the previous reforms by enacting further legislative reforms (Bill C-2) in 2005 to make it easier for children to give evidence in criminal proceedings (Bala et al. 2005). These reforms resulted in:

Assessing the Impact of the 2006 Reforms

After Bill C-2 came into force in 2006, the Department of Justice funded court observation studies undertaken by BOOST (formerly the Toronto Child Abuse Centre) in Toronto and the Zebra Centre in Edmonton to learn about how child witnesses were being treated. Between June 2006 and April 2008, these two organizations trained volunteers to observe court hearings (Rimer and McIntyre 2008). Their studies found that the most commonly used accommodations were a support person escorting a child to the witness stand and using a screen; during that period, the use of closed-circuit television (CCTV) was less common.

In a study of professionals done in 2006, many prosecutors explained that they did not request an aid for a child without having a strong reason to do so. They also reported that they had as much success without the aids as with them (McDonald 2018). Some defence counsel surveyed expressed serious reservations about the testimonial aids, arguing that they violated fundamental principles of the criminal justice system that were intended to protect the accused.

In 2008, Bala et al. (2010) surveyed judges in four jurisdictions about their awareness and understanding of the Bill C-2 changes. The judges responded that applications involving children were almost always successful, and that those involving vulnerable adults were also often successful. Half of all judges surveyed reported that there continued to be technical or logistical challenges with CCTV. Overall, the judges surveyed were very positive about Bill C-2’s provisions. Significantly, the change in the competence requirement – eliminating the requirement for children to answer questions about the meaning of the promise to tell the truth – resulted in children as young as four years being able to tesify.

In 2012, Hurley interviewed prosecutors, as well as victim advocates working with vulnerable adults, to ask what they thought of testimonial aids. Participants’ experiences and perceptions varied considerably; some of this variation appeared to be related to community size and location (Hurley 2013). Participants identified many issues resulting from justice officials’ lack of understanding and knowledge about vulnerable witnesses. These included the impact of trauma and sexual victimization on witness participation and mental health, and how a disability can affect witness participation in the criminal justice system.

Developments and Continuing Concerns: 2010–2025

One of the most important developments over the past four decades has been the increase in the amount and nature of support services available for child victims and their parents.

Since 2010, the Department of Justice has funded the development or enhancement of multi-disciplinary local organizations across Canada that provide services as Child Advocacy Centres (CACs) and Child and Youth Advocacy Centres (CYACs). These organizations reduce the re-traumatization of children and youth who disclose that they have been victimized by employing a co-ordinated and collaborative multidisciplinary team (MDT) approach in the services and supports they offer to children, youth, and their families, ideally in one location. MDTs generally include: law enforcement officers, child protection workers, mental and physical health practitioners, a family/victim advocate, victim services, and, on some teams, trained forensic interviewers and prosecutors. By the spring of 2023, 39 CACs/CYACs were operating across Canada, with another nine in development, one doing a feasibility study, and two exploring a CAC/CYAC proposal (McDonald et al. 2024).

A study done in the summer of 2023 focused on the use of virtual testimony rooms in CACs/CYACs (McDonald et al. 2024). Overall, professionals involved in this study agreed that using virtual testimony rooms could positively affect the well-being of the children and youth because they would be able to testify in a safe, familiar space without being afraid to see the accused in person. While the use of virtual testimony from a space outside the courthouse is still limited, CACs/CYACs’ commitment to virtual testimony rooms will facilitate the growing acceptance of this practice in the years to come.

Since 2010, the Department of Justice has commissioned a number of small research projects for specific testimonial aids; most of the studies involved in-depth interviews with key stakeholders. McDonald and Ha (2015), for example, examined requests in the territories for public exclusion orders and for the appointment of counsel when a self-represented accused may need to cross-examine vulnerable witnesses. Researchers undertook qualitative, in-depth interviews with prosecutors, as well as Crown Witness Coordinators (CWCs) across the North.

The Supreme Court decision in R v Friesen (2020) provided important judicial recognition of the harm done by child sexual abuse, relying significantly on research done by various Canadian authorities, including the Badgley Report, House of Commons debates, material from Justice Canada, and work by Canadian scholars (including my own). In the Friesen case, the Supreme Court unanimously reversed the Manitoba Court of Appeal and upheld a trial decision to impose a six-year prison sentence on a man found guilty of sexual offences against a child. The Court was determined to:

send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are…informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

One of the continuing concerns about approaches to child witness cases involves the interviewing methods police, child protection workers, and other professionals use to investigate these cases. In a survey of 200 professionals done in 2015, with funding support from the Department of Justice, Brubacher et al. (2018) found a wide variety of practices in use across Canada, and differences in length of training and who provided it.

While Canadian lawyers self-report that they adhere to best practices for questioning children in criminal proceedings (i.e., using open-ended questions), a recent SSHRC-funded study of transcripts of criminal prosecutions involving child witnesses found that lawyers rarely asked open-ended questions, though prosecutors were more likely than defence lawyers to ask open-ended questions (Wylie et al. 2024). Child witnesses elaborated more in response to open-ended questions and when questioned by the prosecution. Declarative questions were the most common question type even though they were the least likely to elicit more elaborated responses. Thus a declarative question, like “He was wearing a blue jacket?” is less likely to provide an accurate answer than an open-ended question, like: “What was he wearing?” Furthermore, open-ended questions were more likely to lead to a conviction.

To help children provide better testimony, lawyers, especially prosecutors, also need training and sufficient time to more effectively establish a rapport with child witneses before they testify (Carr 2024).

Conclusion

It is heartening to have witnessed the reforms and changes in professional practices for child witnesses over the past four decades. Many more children are now able to come to court to testify about their abuse and exploitation, and the supports available make the process less traumatic than it used to be. Unfortunately, there are still too many cases involving children that could be dealt with in ways that would be less disturbing to them and more likely to allow them to give a full account of what they experienced.

As a result of the changes over the past decades, more perpetrators of child abuse are being successfully prosecuted and population-based research establishes that there has been a significant decline in the rates of child sexual abuse in Canada over the past four decades (Shields 2016; Fallon 2019). There are, however, disturbing indications that in recent years sexual offences against children, especially internet-facilitated abuse, have been increasing (Statistics Canada 2024).

Over the past decade I have continued to be involved in educating judges, lawyers, and law students about child witness issues (Bala 2024). Police, prosecutors, defence counsel, and judges generally now have a better understanding of how to treat child witnesses than in the past, but professionals in the justice system still need more training and education about child-related issues. There is also a clear need for more resources to provide services for abused children, for example, to ensure prosecutorial continuity in the carriage of cases with a child witness, and to allow these cases to be resolved within a reasonable time. Delaying the resolution of cases in the justice system may increase a child’s emotional trauma, and resulting in their memory fading and being a less effective witness. In some cases, delay may result in charges being dismissed because of the failure to have a trial within a reasonable time. Despite very significant improvements in access to equipment to record investigative interviews on video and to have closed-circuit television for child witnesses, such equipment is still not available in some locales, or there is a lack of adequate training in its use. In too many places, victims of child abuse must endure long waiting lists for therapeutic services.

Research has played a critical role in helping to stimulate reforms and increasing understanding of how the justice system is operating, though it could be further improved. Gaps remain in our understanding of how children are being treated in Canada’s criminal courts. Even reliable data on how child witness cases are being dealt with is lacking. While difficult to do, research with children and youth about their experiences in the justice system is especially needed.

References

Cases