Testimonial Support for Vulnerable Adults (Bill C-2): Case Law Review (2009-2012)
5. Preventing Questioning by Self-represented Accused: Section 486.3
In 1993, the first provision relating to the protection of witnesses under 14 years of age from being cross-examined by a self-represented accused was enacted. It applied to proceedings involving offences of a sexual nature, those set out in sections 271, 272 of the Criminal Code or those in which violence is used, attempted, or threatened. The amendment recognized that many children who are victims of abuse remain terrified of the accused and that to allow that person to personally cross-examine the child can result in further victimization and affect the child’s ability to testify (Barrett 2008, 3-87 citing Bala 1993, 368-69).Footnote 2
In 1999, section 486 was amended again. It extended protection to witnesses under the age of eighteen at the time of the trial or the preliminary inquiry for certain designated offences. While this extension furthered the protection to young witnesses, there were “obvious gaps” to it, including the failure to include the offence of criminal harassment and lack of protection to adult vulnerable witnesses, in particular victims of sexual or domestic violence (See Barrett 2008, at p.3-87).
The section was amended again in 2005, to fill these gaps, through Bill C-2. Parliament extended the protection once again, this time to include all stages of the proceeding without regard to the nature of the offence and, in some cases, for witnesses over the age of eighteen. Section 486.3 now reads as follows:
486.3 (1) In any proceedings against an accused, on application of the prosecutor or a witness who is under the age of eighteen years, the accused shall not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.
(2) In any proceedings against an accused, on application of the prosecutor or a witness, the accused shall not personally cross-examine the witness if the judge or justice is of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.
(3) In making a determination under subsection (2), the judge or justice shall take into account the factors referred to in subsection 486.1(3).
(4) In any proceedings in respect of an offence under section 264, on application of the prosecutor or the victim of the offence, the accused shall not personally cross-examine the victim unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination. Emphasis added.
(4.1) An application referred to in subsection (1), (2) or (4) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.
(5) No adverse inference may be drawn from the fact that counsel is, or is not, appointed under this section.
Again, reference should be made to the chart in Appendix A that describes some of the relevant cases that have considered the interpretation of this section, with a brief description of the basis upon which the application was, or was not granted and describes the evidence led in support of the application.
The result is that counsel will be appointed presumptively upon application in some circumstances: when a witness is under eighteen years of age, or when the witness is an adult victim who is alleging that she or he was criminally harassed. A judge maintains a discretion to refuse the order appointing counsel to cross-examine, but only if the judge is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The onus, in other words, is on the accused to show why the order would impact his fair trial right to cross-examine. The 2010 Bill C-2 Case Law Review notes that
“there is no reported case law on circumstances that would justify a finding that the “proper administration of justice” would “require” that the accused conduct cross-examination in person and that it would be difficult for an accused person to satisfy this test (Bala et al. 2010, 31). There is still no reported case law in which an accused person has met this test, although in one unreported case the judge permitted cross-examination as assigned counsel withdrew on the date of trial: R. v. Agar, 2007 BCPC #26636.
Counsel will also be appointed at the judge’s discretion if the judge or justice is of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness. If the order is opposed then the Crown must demonstrate how such an order would facilitate the ability of the adult witness to give a full and candid account. The judge should consider the factors set out in s. 486.1(3), these being the age of the witness, whether the witness has a physical or mental disability, the nature of the offence, the nature of the relationship with the accused (such as whether there is a power imbalance: R. v. Jones, 2011 NSPC 3 at , , ), and any other relevant circumstances.
One relevant circumstance that is often considered is whether the accused person consents to the order, as it can be problematic for a lawyer to cross-examine a witness without instructions from the accused and indeed, the ability to instruct counsel is often cited as a justification for the order: R. v. R. v. S.(P.N.),  O.J. No. 2782 (Ont.C.Jus.) at . Another identified relevant circumstance is the anticipated “quality” of cross-examination were the accused to personally cross-examine (focused, or rambling?): Jones at , , R. v. Predie,  O.J. No. 2723 (Ont.Sup.C.Jus.) at , R. v. Fazekas, 2010 ONSC 6603 at - (accused described as having trouble staying focused and had a tendency to get excited).
This provision may be of great assistance to prosecutions where a witness is testifying as a victim of domestic or sexual abuse. It is these discretionary applications that are typically the subject of reported case law, and often on the subject of the practicalities of the appointment (remuneration, for example). (see Chart: S. 486.3) In one case, the judge noted that
“The test is not met simply by a witness expressing a wish. There must be reason to think that there is actual need for the requested order. The rationale is not to spare a witness some discomfort, but to prevent the injustice that would occur if the witness were unable to speak the whole truth.” R. v. Canning,  N.S.J. No. 497 (P.C.) – one witness said that the accused questioning him would not affect his answers - and see R. v. Tehrankari, 2008 CarswellOnt 8750, (2008), 246 C.C.C. (3d) 70 (Ont.C.Jus.) at .
The test for ordering the appointment of counsel for cross-examination was described in Tehrankari as:
 Weighing the unfettered right of the accused to defend himself against the discretionary order that I might make to accommodate a witness, I believe I must be satisfied on a balance of probabilities that a full and candid account would be unachievable should the accused cross-examine an individual witness. The evidence on a voir dire must establish the "necessity" of making such an order.
The purpose of this provision was described more recently in Jones (and see R. v. S.(P.N.),  O.J. No. 2782 (Ont.C.Jus.) at  and and R. v. Fazekas, 2010 ONSC 6603 at ):
 The cases have noted that section 486.3(1) is found within that part of the Criminal Code that provides for certain kinds of aids to support witnesses in giving their testimony in court, such as screens and support persons. The objective is to facilitate a witness being able to provide full and candid testimony. In applications such as the ones I am dealing with, the term “legal screen” has been used to capture what Parliament intended: the use of a lawyer to conduct the cross-examination of a vulnerable witness on behalf of an accused. (R. v. S.(P.N.), 2010 ONCJ 244 (CanLII), 2010 ONCJ 244, paragraph 11) There is a societal and administration of justice interest in protecting vulnerable witnesses so that they are facilitated in providing their evidence to the court.
The judge in S.(P.N.) noted the “lack of guidance as to how the process should work”:  and identified the following matters to be considered:
- What, if any choice or even preference does the accused have in the choice of counsel;
- What, if any, role does the Court have in appointing specific counsel, beyond merely signing an order that counsel be appointed;
- What is the role of the appointed counsel which is limited to cross-examination of the qualifying witness, or more specifically, does cross-examination mean merely parroting questions put to counsel by the accused or does cross-examination include a preparatory element, and if so, to what extent;
- What is the relationship between the appointed counsel and the accused; should the counsel give legal advice to the accused, can the accused instruct the appointed counsel; is there solicitor-client confidentiality;
- For whose benefit is the counsel being appointed;
- Is the appointed counsel to be remunerated and if so how should the quantum be calculated and what should be the source of such payment;
- Does the presiding judge or justice have jurisdiction to order payment by the Crown, either by the wording of s. 486.3, or other statutory basis, if the Crown contests the manner of remuneration, or does the Crown have jurisdiction to set limits on remuneration and set limits on the preparation time of the appointed counsel.
In addressing these questions, the trial judge noted in paragraphs - as follows:
68. In order to prevent delay, especially should Crown Civil wish to make submissions, the prosecuting Crown needs to bring the application as soon as the trial date is set and trial judge can then case manage the application.
69. The accused should be advised of the ability to suggest the name of a lawyer. There is a clear responsibility on the accused to not delay in this decision.
70. Should the accused not suggest a preferred lawyer, an opportunity to meet the lawyer proffered by Legal Aid seems a minimal assurance that the two can work together. There would only be time for this if the s. 486.3 Application is brought promptly at the time of setting the trial date.
71. The Court's initial order should be restricted to the fact of the appointment of the chosen counsel and not predetermine remuneration. Appointed counsel and the Attorney General should have an opportunity to negotiate the appropriate remuneration and preparation time in the context of that particular matter. Some matters may be more complex than others, or some accused more difficult than others.
72. Should the Attorney General refuse to negotiate, as was the decision in this case, the matter can be returnable before the trial judge. At that time the Court will decide between a conditional stay or setting rates of remuneration.
73. While a conditional stay would better respect the power of the legislature to prioritize public spending, the community's interest in matters involving vulnerable witnesses (usually victims) will often justify the court setting remuneration rates in order to ensure the trial proceeds without delay.
74. In my view, I infer from s. 486.3 the ability to order remuneration as inherent in the process of retaining counsel's services. If I am wrong the power to order remuneration flows from the court's jurisdiction to control its own process, such as the appointment of amicus. In my view, the alternative would be conditional stays which would undermine the significant public interest in proceeding to a trial of the merits in cases and would indeed bring the administration of justice into disrepute. A stay of proceedings should be a remedy of last resort.
It is arguable that these are best described as persuasive guidelines. See further R. v. Lloyd, 2011 ONCJ 15 at -, and see R. v. S.(B.) (2007), 240 C.C.C. (3d) 375 (Q.C.A), 2007 QCCA 1756 and see cases referred to in 2010 Case Law Review at 2.2.3, p. 33.
The case law suggests that in many instances the actual mechanics of the appointment, such as who should be retained and the rate of remuneration, is a matter that is arranged or negotiated by provincial attorney general offices and legal aid delivery offices, with matters being brought to the trial judge only if an arrangement cannot be made.
The application can be made before or during the proceedings. It appears from this case law review that most applications are brought before the proceedings, which would allow the lawyer to prepare for the cross-examination. The witness does not need to testify on the application, and in fact compelling the witness to do so would defeat the purpose of the section: R. v. C.M., 2012 ABpc 128 at . The evidentiary foundation for the order can be based on hearsay, or on viva voce testimony of, for example, an investigating officer, or even from submissions of counsel, or consideration of the transcript of the preliminary inquiry. Jones at , Predie at -, R. v. Tehrankari at , 
6. Video-recorded Evidence: Section 715.2
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. [Emphasis added.]
This section provides that a video recording made within a reasonable time after the alleged offence and in which the witness describes the acts complained of is admissible in evidence if the witness adopts it while testifying, and if the witness would have difficulty communicating by reason of a physical or mental disability. The first time this accommodation was available was when the Criminal Code was amended in 1988 to allow for the admission of a prior videotaped statement of a complainant who was under the age of eighteen at the time of the offence, taken in certain circumstances and for particular offences. The Codewas amended in 1997 so that a videotaped statement of any witness under the age of eighteen who met the statutory preconditions could be admitted. On June 30, 1998, the availability of this testimonial accommodation was further extended to any adult complainant or witness who would have difficulty communicating the evidence due to a mental or physical disability. (See Barrett 2008, 3-56)
In addition to the characteristics of the witness that support the application (under eighteen or an adult with a disability and communication difficulties), the criteria for admissibility was that:
- the offence charged was one of the enumerated sexual or violent offences;
- the videotaped statement was made within a reasonable time after the alleged offence;
- the statement contained a description of the acts complained of; and
- the witness adopted the statement while testifying.
Bill C-2 further amended this provision so that it is available in any proceeding, regardless of the charge. The test remains that the admission of video-recorded statements of adults is restricted to those adults who may have difficulty communicating the evidence because of a physical and mental disability. This accommodation is not therefore available for vulnerable witnesses generally, just to those who have a “testimonial challenge” in providing evidence to a trier of fact. It is also noteworthy that s. 715.1 provides for the admissibility of a videotaped statement of a witness under eighteen regardless of whether the witness would have “difficulty” communicating the evidence.
The videotaped statement is independent evidence and admitted for the truth of its contents once the witness adopts it. The statement becomes the complainant's testimony, considered with the viva voce testimony given by the witness. Both are considered “as a whole.” The videotaped statement augments the witness's testimony, so it is available even when the witness is able to give the same details in court. The prior statement, combined with the in-court evidence, afford a more complete version of the witness's evidence: R. v. T.(W.P).)(1993), 83 C.C.C. (3d) 5 (Ont.C.A.) at p. 28.
The Crown must establish that the videotape was made within a “reasonable time” after the alleged offence. This is assessed considering the “totality of the circumstances”, including the age of the witness, the nature of the offence, efforts made to obtain an earlier statement, any delay by the witness is disclosing or reporting the offence, the facilities available for taping in the community, and whether investigation prior to videotaping was necessary. R. v. L. (D.O.),  4 S.C.R. 419
A judge is not permitted to use the videotaped statement as corroborative in the sense that the witness is “consistent” and therefore more likely to be telling the truth, although the judge can consider inconsistencies between the videotaped and in-court testimony. R.v. Aksidan (2006), 209 C.C.C. (3d) 423 (B.C.C.A.) at , , R. v. S.(K.P.) (2007), 224 C.C.C. (3d) 62 at -, . The witness is still cross-examined.
Admitting a prior videotaped statement is an exception to the usual rule of evidence that the prior statement of a witness is inadmissible for the truth of its contents (hearsay). The rationale for the use of a prior videotaped statement of a witness under eighteen was considered by the Supreme Court of Canada in R. v. L. (D.O.),  4 S.C.R. 419; R. v. F. (C.C.),  3 S.C.R. 1183. See also R. v. Toten (1993), 83 C.C.C. (3d) 5 (Ont. C.A.); and R. v. Meddoui (1990), 61 C.C.C. (3d) 345 (Alta. C.A.), leave to appeal dismissed  3 S.C.R. ix (Bala et al. 2001).
The admissibility of the statement enhances the truth seeking function of the court as it is often the “best” evidence of the child, as the statement is given when the memory of the incident is current, before the memory of the incident can be impacted by suggestion, and because the child is able to give the statement in a comfortable environment. In addition to furthering the truth-seeking goal of the courts, it therefore also minimizes the trauma to the child or witness.
Because the language of s. 715.2 is virtually identical to s. 715.1, it is typically interpreted in case law decided in applications for the admissibility of a child or young witness's videotaped statement. It is now common practice for investigators to take statements from witnesses under eighteen years of age for the purpose of having a record created and one that can be introduced as evidence at trial, and there are many cases that consider the admissibility of these statements. In contrast, investigators may take videotaped statements of adult witnesses, but they are rarely relied upon as evidence at trial.
The videotape is limited to the acts complained of and may include:
- the version of events underlying the charge;
- everything that happened during the commission of the offence, from the time the accused first came into contact with the witness until he/she left;
- the witness's description of the accused;
- identification of the accused;
- any statements the accused made, provided the statements are otherwise admissible.
The statement may have to be edited to remove parts that do not deal with the “acts complained of.”
The witness has to “adopt” the statement. This means that the witness must recall giving the statement and testify that he or she was being honest and truthful when the statement was made.
The court has the discretion to refuse to admit the recording if it would interfere with the proper administration of justice. This residual discretion to exclude the statement was added by the Bill C-2 amendment in 2005, although the discretion always existed at common law. It was exercised when the probative value of the evidence was outweighed by the prejudicial effect of the evidence, such that admission would operate unfairly to the accused, or interfere with the truth finding process. It was contemplated that this discretion is to be rarely exercised: F.(C.C.) at , . The trial judge conducts a voir dire to determine if the video recording should be admitted. See R. v. Mulder,  O.J. No. 345 (Ont.S.C.J.) at - for a description of the relevant factors for a judge to consider on the issue of whether the statement should or should not be admitted. As a general proposition, the statement should conform to the rules of evidence.
A jury should be instructed that a witness is under 18 years of age and that the Criminal Code therefore allows him or her to adopt their previous video-recorded statement and how they should assess the weight of this statement. (Model Instructions found in CRIMJI, 4.68, Ontario Specimen Jury Instructions, “Final Charge 29-C”. (and F.(C.C.) at ).
There is a significant body of case law that has developed with respect to the admissibility and use that can be made of videotaped statements from child witnesses. There is much less consideration of the use of a videotaped statement for adult witnesses pursuant to s. 715.2. The following are a few cases that consider the admissibility of a videotaped statement.
In R.v. Anderson,  Q.J. No. 17488 (Sup.Ct.), the complainant was permitted to testify outside the courtroom and his videotaped statement was admitted. It is not apparent what the offence charged was. The evidence on the voir dire was testimony from the investigating officer and the videotaped statement was played. The complainant was described as a 33 year old with “mental problems.” The nature of these problems was not medically analysed or treated, but as soon as kindergarten, he was identified as being in need of special attention and from then on, he has attended specialized schools that were equipped to address his particular needs. His mental level was described as that of a ten year old. He could express himself and he could communicate evidence, but obviously not like a 33 year old man. He was described as very agitated, having difficulty maintaining his concentration, is very repetitive and sometime drifts off on his own preoccupations that are not quite relevant to the situation he is in. The trial judge concluded that the tape should be admitted as there were no suggestive questions, no inadmissible portions, it was made within two weeks of the alleged offence, and there was no objection by the accused.
In R. v. C.C.,  O.J. No. 24 (Sup.Ct.Jus.), 2013 ONSC 72, the accused was charged with sexually assaulting a 20 year old developmentally delayed woman who “functions cognitively at a mental age of a three to five year old child”. The complainant adopted the statement she gave to the police “as true” (). The defence took no issue with its admissibility: . She testified with a support worker and behind a screen: . The judge commented that “very little information was obtained from her during the course of her examination at trial”: . The judge concluded that the statement she gave to the police “seemed the most reliable”, in contrast to her trial testimony.
In R. v. Charbonneau, 2012 O.J. No. 2112 (C.A.), 2012 ONCA 314, the Court of Appeal noted that the complainant in the case was 49 years old at the time she was sexually assaulted. She suffered from paranoid schizophrenia. She reported the alleged assault to the police approximately three weeks after it occurred. Her videotaped statement to the police was admitted as evidence at the trial, on consent, under s. 715.2 of the Criminal Code. The complainant also gave oral evidence. There was no discussion by the Court on the videotaped statement as the main issue on appeal related to adequacy of the jury instructions.
In R. v. Gomes,  O.J. No. 4337 (Sup.Ct.Jus.), 2010 ONCJ 461, the accused was charged with sexual assault of a hearing impaired twenty year old woman. The Crown applied to have her evidence-in-chief introduced through a video statement to the police on the basis that she was hearing impaired. She also testified at the trial. After watching the video she adopted its contents and said that she had told the police the truth to the best of her ability: . It appears that she was quite extensively cross-examined on inconsistencies within it and between her in-court testimony.
In R. v. Land,  O.J. No. 6006, the accused was charged with murder, and the Crown applied to admit two videotaped statements of interviews with a witness under eighteen years of age, and also to admit statements of adult witnesses suffering from mental disabilities. There was no issue that the statements were provided within a reasonable time of the death of the victim. The Crown's application was opposed on the basis that it was not established that the witnesses would be unable to communicate the evidence as a result of the mental disability, that these statements were not “of the acts complained of” and that the officer used leading questions during the interview.
The trial judge concluded that one of the adult witnesses would not have difficulty communicating her evidence, as follows:
As well, I cannot find that Ms. G. would have difficulty communicating her evidence by reason of a mental disability. Ms. G. was not called as a witness on this motion. In the Pre-trial Ruling #1 Regarding Viva Voce Evidence on KGB Application, I reviewed Ms. G.'s vulnerabilities and how well she functioned at the Preliminary Inquiry, despite her challenges. I concluded that Ms. G. could handle a further pre-trial court appearance in regard to a proposed KGB application, as long as she had a support person with her. Ms. G. will have a support person with her when she testifies at trial. There is inadequate evidence that Ms. G. will have difficulty communicating her evidence if, as would be normal, she is given the opportunity prior to trial to review her statement to the Detective. Ms. G. functioned well - both during her interview with the Detective and during her testimony at the Preliminary Inquiry. Although the passage of further time may make certain aspects of her evidence more difficult to remember, it will be open to counsel to refresh her memory in the normal course. Otherwise, there is no reason to believe that, at trial, Ms. G. would function any differently than she did during the Preliminary Inquiry.
With respect to the other adult witness, the trial judge said: “Ms. H. did not testify on this motion and, therefore, I have not had the benefit of observing her in the witness box. However, a review of her interview with the Detective, and her testimony at the Preliminary Inquiry, reveals that she does have difficulty remembering things and communicating effectively. Her inclination is to agree with virtually everything put to her - even if it contradicts something she might have said a few moments before. The Crown has satisfied this precondition to utilizing s. 715.2(1) of the Code.” (at )
In R. v. Osborne,  O.J. No. 6279 (Sup.Ct.Jus.), 2011 ONSC 4289, the accused was charged with first degree murder of a 31 year old woman with the mental capacity of an 11 year old child. The accused was also developmentally delayed and living in a townhouse with other individuals with challenges. The Crown sought to introduce the video-taped statement of one of these individuals, a 24 year old who suffered from a form of autism. The preliminary inquiry transcript was considered on the voir dire, where the father of the witness testified that his son had a mental capacity of a seven and a half year old child. The witness also testified at the preliminary and adopted the videotaped statement.
The accused accepted that the witness would have difficulty communicating the evidence by reason of a mental or physical disability, but argued against the admissibility of the statement on the basis that the video was not made within a reasonable time, the witness may not adopt it, and that it would interfere with the proper administration of justice. The judge notes that the statements were given within hours of the crime, and that the inconsistencies were not the product of lack of recall, but indicative of the mental disability of the witness. The purpose of the prerequisite that the statement be taken within a reasonable time is that this enhances the reliability of the statement and is a circumstantial guarantee of trustworthiness.
With respect to adoption of the statement, the witness adopted it at the preliminary. Because the witness has a short attention span, it was played to him in segments. After each segment he said he recalled making the statements and that he was trying to tell the truth. The trial judge rejected the accused's argument that the test for adoption should be different as between child witnesses (s. 715.1) and adult witnesses (s.715.2):
 Based on the similarity of the language used in ss. 715.1 and 715.2 it is apparent that Parliament chose to treat these two groups in the same way for the purpose of admitting video recorded statements. In doing so Parliament must have been aware of the test for adoption of video recorded statements previously established by the Supreme Court of Canada in C.C.F. In these circumstances I take the enactment of s. 715.2 in virtually the same terms as s. 715.1 as an indication by Parliament that adoption should have the same meaning in both sections. Parliament could have chosen to specify a different test for adoption in s. 715.2 but did not do so. I conclude the test for adoption is the same under each section.
The judge concluded that the videotaped statements should be admitted, and that questions regarding the inconsistencies within it were matters for the jury to consider.
7. Section 16 of the Canada Evidence Act
Prior to January 2, 2006, the Canada Evidence Act required that a judge had to inquire into whether a witness under the age of fourteen or a person whose mental capacity was challenged was competent to testify. Bill C-2 amended the Canada Evidence Act as it applied to child witnesses. In a fundamental change to the rules of evidence, a child is now presumed to be capable of testifying.
Parliament had many good reasons to change the competency inquiry for children. In particular, this change was enacted to facilitate the ability of children to testify and the Court's recognition that reliable evidence was being excluded when children were not allowed to testify simply because they could not answer the abstract inquiry into what it means to “tell the truth”. For a further description of the rationale for this legislative change and how to interpret this legislation, and for a discussion generally of changes relating to the way children's evidence is received in criminal courts see R. v. J.Z.S., 2008 BCCA 401, upheld 2010 SCC 1 and as discussed in the 2010 Bill C-2 Case Law Review at pages 14-23.
Bill C-2 did not amend the competency inquiry as it applies to witnesses whose mental capacity is challenged. Section 16 continues to read, for this group of witnesses, as follows:
Witness whose capacity is in question
16. (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
- whether the person understands the nature of an oath or a solemn affirmation; and
- whether the person is able to communicate the evidence.
Testimony under oath or solemn affirmation: (2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.
Testimony on promise to tell truth: (3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.
Inability to testify: (4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.
Burden as to capacity of witness: (5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.
In contrast, child witnesses under fourteen years of age are guided by this presumption of capacity, and it is worth contrasting this section with s. 16:
Person under fourteen years of age
16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.
No oath or solemn affirmation: (2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.
Evidence shall be received: (3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.
Burden as to capacity of witness: (4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.
Court inquiry: (5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.
Promise to tell truth: (6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.
Understanding of promise: (7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.
Effect: (8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.
Section 16(1) sets out what a judge must do
when a challenge is raised. The judge must first determine "whether the
person understands the nature of an oath or a solemn declaration" and
"whether the person is able to communicate the evidence" (s. 16(1)).
If these requirements are met, the witness testifies under oath or affirmation,
as other witnesses do (s. 16(2)). If these requirements are not met, the judge
moves on to s. 16(3). Section 16(3) provides that
"[a] person ... who does
not understand the nature of an oath or a solemn affirmation but is able to
communicate the evidence may ... testify on promising to tell the truth."
The Supreme Court of Canada recently had the opportunity to consider how a judge should assess the competency of a witness whose mental capacity is challenged, and what impact, if any, there is to this test in light of Bill C-2 changing the competency for child witnesses. R. v. D.A.I.,  1 S.C.R. 149, 2012 SCC 5. The complainant was a 22-year-old woman with the mental age of a three to six-year old. The trial judge held a voir dire to determine whether she was capable of testifying. He concluded that she was not competent to testify on a promise to tell the truth, because she had failed to demonstrate that she understood the duty to speak the truth. The Crown's examination of the witness demonstrated that she understood the difference between telling the truth and lying in concrete situations. However, the trial judge went beyond this to question her on her understanding of the nature of truth and falsity, of moral and religious duties, and of the legal consequences of lying in court. She was unable to respond adequately to these more abstract questions, to which she frequently answered "I don't know". ()
Chief Justice McLachlin in the majority judgment noted the fundamental importance that there should not be unnecessary (and artificial) barriers to the admissibility of evidence from vulnerable witnesses:
 [...] the history of s. 16 supports the view that Parliament intended to remove barriers that had prevented adults with mental disabilities from testifying prior to the 1987 amendments (S.C. 1987, c. 24). The amendments altered the common law rule, by virtue of which only witnesses under oath could testify. To take the oath or affirm, a witness must have an understanding of the duty to tell the truth: R. v. Brasier (1779), 1 Leach 199, 168 E.R. 202. Adults with mental disabilities might not be able to do this. To remove this barrier, Parliament provided an alternative basis for competence for this class of individuals. Section 16(1) of the 1987 provision continued to maintain the oath or affirmation as the first option for adults with mental disabilities, but s. 16(3) provided for competence based simply on the ability to communicate the evidence and a promise to tell the truth.
 The historic background against which s. 16(3) was enacted explains why Parliament might have wished in 1987 to lower the requirements of testimonial competence for adults with mental disabilities, who are nonetheless capable of communicating the evidence. While adults with mental disabilities received little consideration in the pre-1987 case law, the inappropriateness of questioning children on abstract understandings of the truth had been noted and criticized. In R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), Dickson J. ad hoc (as he then was) rejected the practice of examining child witnesses on their religious beliefs and the philosophical meaning of truth. Meanwhile, awareness of the sexual abuse of children and adults with mental disabilities was growing. To rule out the evidence of children and adults with mental disabilities at the stage of competence - the effect of the requirement of an abstract understanding of the nature of the obligation to tell the truth - meant their stories would never be told and their cases never prosecuted. These concerns explain why Parliament moved to simplify the competence test for adult witnesses with mental disabilities. [Emphasis added.]
The majority of the Court concluded that the correct interpretation of s. 16 does not require more than that the witness (1) was able to communicate the evidence, and (2) promised to tell the truth. On this basis, the witness should have been permitted to testify. Parliament intended to eliminate an understanding of the abstract nature of the oath or solemn affirmation as a prerequisite for testimonial capacity. The witness was not required to demonstrate an understanding of the obligation to tell the truth.
One of the arguments before the Court was what to make of the fact that Parliament amended the competency provisions with respect to children, but not adults. The submission that vulnerable witnesses should be questioned in the same abstract and ultimately unnecessary manner regarding their understanding of a promise was rejected:
 The argument is that if Parliament had intended adult witnesses with mental disabilities to be competent to testify simply on the basis of the ability to communicate and the making of a promise, it would have enacted a ban on questioning them on their understanding of the nature of the obligation to tell the truth, as it did for child witnesses under s. 16.1(7). The absence of such a provision, it is said, requires us to draw the inference that Parliament intended that adult witnesses with mental disabilities must be questioned on the obligation to tell the truth.
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 Fourth, the argument that the absence of the equivalent of s. 16.1(7) in s. 16(3) means that adult witnesses with mental disabilities must demonstrate an understanding of the nature of the duty to speak the truth is logically flawed. The argument rests on the premise that s. 16(3), unless amended, requires an inquiry into the witness's understanding of the obligation to tell the truth. On this basis, it asserts that, unless the ban on questioning in s. 16.1(7) dealing with children is read into s. 16(3), such questioning must be conducted. Thus, my colleague Binnie J. states that "[t]he Crown invites us, in effect, to apply the “don't ask” rule governing [page 177] children to adults whose mental capacity is challenged" (para. 127).
Finally, in summary, the Court recapped: s. 16(3) of the Canada Evidence Act imposes two conditions for the testimonial competence of adults with mental disabilities: 1. the witness must be able to communicate the evidence; and 2.the witness must promise to tell the truth. Inquiries into the witness's understanding of the nature of the obligation this promise imposes are neither necessary nor appropriate. It is appropriate to question the witness on her ability to tell the truth in concrete factual circumstances, in order to determine if she can communicate the evidence. It is also appropriate to ask the witness whether she in fact promises to tell the truth. However, s.16(3) does not require that an adult with mental disabilities demonstrate an understanding of the nature of the truth in abstracto, or an appreciation of the moral and religious concepts associated with truth telling. And, with respect to procedure the Court noted, at -:
- the voir dire on the competence of a proposed witness is an independent inquiry: it may [page 187] not be combined with a voir dire on other issues, such as the admissibility of the proposed witness's out-of-court statements.
- although the voir dire should be brief, it is preferable to hear all available relevant evidence that can be reasonably considered before preventing a witness to testify. A witness should not be found incompetent too hastily.
- the primary source of evidence for a witness's competence is the witness herself. Her examination should be permitted. Questioning an adult with mental disabilities requires consideration and accommodation for her particular needs; questions should be phrased patiently in a clear, simple manner.
- the members of the proposed witness's surrounding who are personally familiar with her are those who best understand her everyday situation. They may be called as fact witnesses to provide evidence on her development.
- expert evidence may be adduced if it meets the criteria for admissibility, but preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness.
- the trial judge must make two inquiries during the voir dire on competence: (a) does the proposed witness understand the nature of an oath or affirmation, and (b) can she communicate the evidence?
- the second inquiry into the witness's ability to communicate the evidence requires the trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions. It may be useful to ask if she can differentiate between true and false everyday factual statements.
- the witness testifies under oath or affirmation if she passes both parts of the test, and on promising to tell the truth if she passes the second part only.
The Supreme Court of Canada made a number of significant statements regarding the treatment of vulnerable adult witnesses in the criminal justice system – statements which should resonate whenever consideration of accommodation for these witnesses is contemplated:
 The discussion of the proper interpretation of s. 16(3) of the Canada Evidence Act would not be complete, however, without addressing the policy concerns underlying the issue. Two potentially conflicting policies are in play. The first is the social need to bring to justice those who sexually abuse people of limited mental capacity - a vulnerable group all too easily exploited. The second is to ensure a fair trial for the accused and to prevent wrongful convictions.
 The first policy consideration is self-evident and requires little amplification. Those with mental disabilities are easy prey for sexual abusers. In the past, mentally challenged victims of sexual offences have been frequently precluded from testifying, not on the ground that they could not relate what happened, but on the ground that they lacked the capacity to articulate in abstract terms the difference between the truth and a lie and the nature of the obligation imposed by promising to tell the truth. As discussed earlier, such witnesses may well be capable of telling the truth and in fact understanding that when they do promise, they should tell the truth. To reject this evidence on the ground that they cannot explain the nature of the [page184] obligation to tell the truth in philosophical terms that even those possessed of normal intelligence may find challenging is to exclude reliable and relevant evidence and make it impossible to bring to justice those charged with crimes against the mentally disabled.
 The inability to prosecute such crimes and see justice done, whatever the outcome, may be devastating to the family of the alleged victim, and to the victim herself. But the harm does not stop there. To set the bar too high for the testimonial competence of adults with mental disabilities is to permit violators to sexually abuse them with near impunity. It is to jeopardize one of the fundamental desiderata of the rule of law: that the law be enforceable. It is also to effectively immunize an entire category of offenders from criminal responsibility for their acts and to further marginalize the already vulnerable victims of sexual predators. Without a realistic prospect of prosecution, they become fair game for those inclined to abuse. [Emphasis added.]
Building on the case law that was reviewed for the 2010 Case Law Review (Bala et al. 2010), this report examines cases dealing with testimonial aids and vulnerable adult witnesses from July 1, 2009 to December 31, 2012. It appears that applications for testimonial aids for vulnerable adults are relatively rare, particularly the “discretionary” applications, at least in comparison to applications for children, although the applications that are made are generally successful. Interpretations of the various legislative provisions by higher courts have also been generally favourable in terms of granting applications and removing unnecessary obstacles to testifying in court. There also appears to be growing awareness on the part of criminal justice system professionals of physical and mental disabilities, as well as other vulnerabilities (relationship of the witness to the accused, nature of the offence, etc.) that could make it difficult for a witness to provide a full and candid account while testifying. One of the barriers that does remain is that of resources, that is having the screens and the CCTV equipment available and all parties familiar with the different technology.
Bala, N., J. Paetsch, L. Bertrand, M. Thomas. 2011. Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2): Case Law Review and Perceptions of the Judiciary. Ottawa: Department of Justice Canada.
Bala, N., R.C.L. Lindsay, and E. McNamara. 2001. Testimonial Aids for Children: The Canadian Experience with Closed Circuit Television, Screens and Videotapes. 44 Crim. L.Q. 461.
Bala, N. 1993. Criminal Code Amendments to Increase Protection to Children and Women: Bills C-126 and C-128. 21 C.R. (4th) 365.
Barrett, J. 2008. Balancing Charter Interests – Victims' Rights and Third Party Remedies. Toronto: Thomson Carswell.
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