Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2):
Case Law Review and Perceptions of the Judiciary

1. Introduction

1. Introduction

1.1 Background

Bill C-2, An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) received royal assent on July 21, 2005[1]. The Bill contained a package of amendments to the Criminal Code and the Canada Evidence Act designed to facilitate testimony by child victims and vulnerable adults, which came into force on January 2, 2006[2]. It changed the approach for determining if child witnesses are competent to testify, allowing them to testify if they are able to understand and respond to questions. In cases involving children and vulnerable adults, the amendments facilitate the use of testimonial aids, including screens, closed-circuit television, support persons, as well as the use of video-recorded statements. Under the new test, testimonial aids are available for all child victims and vulnerable adult witnesses, on application, unless it would interfere with the proper administration of justice.

The Bill also gave judges the authority to appoint counsel for self-represented accused persons for the purposes of preventing cross-examination of children and vulnerable adult witnesses, unless doing so would interfere with the proper administration of justice.

1.2 Purpose of the Project

The Canadian Research Institute for Law and the Family (CRILF) was contracted by the Department of Justice Canada to conduct this project on testimonial support provisions for children and vulnerable adults in the criminal courts. The purpose of this research project was to explore judicial experiences with and opinions about the amendments to the Criminal Code and Canada Evidence Act introduced by Bill C-2 for children and vulnerable adult witnesses.

The project addressed the following research questions:

  1. Since Bill C-2 came into effect, what does case law reveal about the new law and how has Canadian legal literature dealt with these legal reforms?
  2. Are judges familiar with the amendments contained in Bill C-2? Have they had the opportunity to use them? Do they think they're useful?
  3. How often are applications being made for testimonial supports? Are the applications generally successful? If not, why not?
  4. Have judges had any difficulties with the implementation of any of the testimonial support provisions contained in Bill C-2?
  5. How often are applications being made for appointment of counsel to self-represented accused for purposes of cross-examination? Are the applications generally successful? If not, why not? 
  6. Have judges held competency inquiries?  How often is the child witnesses' competence accepted without inquiry?  How often is the child found incompetent to testify?
  7. Do judges have any concerns regarding any of the provisions contained in Bill C-2?

1.3 Methodology

In order to address the research questions listed above, the project included two major components: (1) a review of relevant Canadian legal literature and case law; and (2) a survey of judges in four Canadian jurisdictions. The methodology used for these two components is described below. CRILF established a Judicial Advisory Committee at the outset of the project to provide guidance to the research team throughout the project, including reviewing the survey, helping to facilitate participation of judges in their respective jurisdictions, and reviewing the draft final report. Members of this Committee were: The Honourable R. Brian Gibson, Provincial Court of Nova Scotia; The Honourable Colleen Kenny, Court of Queen's Bench of Alberta; and The Honourable Heino Lilles, Territorial Court of the Yukon.

1.3.1 Case Law and Canadian Literature Review

The new legislation governing the testimony of children and vulnerable adults as witnesses has been interpreted and applied in a significant number of recent reported Canadian cases, and discussed in a few articles. This report includes an analysis and summary of the Canadian case law and legal literature dealing with the new provisions, and related issues concerning vulnerable witnesses. The focus is on cases decided since the new law came into force on January 2, 2006 (and reported prior to June 30, 2009 the cut-off date for the review[3]).

1.3.2 Survey of Judges

A survey of provincial and superior court judges in four jurisdictions in Canada was conducted to elicit their experiences with and opinions on the Bill C-2 amendments. In a teleconference meeting held in September 2007 with representatives from Justice Canada and the research team, it was decided that five jurisdictions would be approached to participate in the study:Nova Scotia, Ontario, Alberta, British Columbia, and the Yukon. Justice Canada agreed to make the initial contact with the jurisdictions, and to provide a letter of information from the Senior Assistant Deputy Minister that could be sent by the contractors to the Chief Judge/Justice of the Provincial and Superior Court in each jurisdiction. CRILF would then follow-up with their offices to discuss implementation of the study. Once a jurisdiction's participation was confirmed, the Chief's Office was sent the survey and cover e-mail electronically for distribution to their  judges. Four of the five jurisdictions approached agreed to participate in the project: Nova Scotia (both levels of court), Alberta (both levels of court), British Columbia (Provincial Court), and the Yukon (Territorial Court). Data collection occurred from November 26, 2007 to January 15, 2008.

The cover e-mail used for the survey is contained in Appendix A. It includes a brief description of the study, as well as instructions for completing the survey and returning it to CRILF. The cover e-mail also contains an ethics statement indicating that the survey is being conducted in accordance with freedom of information and protection of privacy legislation and that data will only be presented in aggregate form and that individual respondents will not be identified.

The survey is contained in Appendix B. The survey was created using “Forms” in Word, allowing respondents to complete it electronically. The judges' survey consists of 36 questions and contains the following sections: Background Information; Your Perceptions of Bill C-2; Your Experiences with the Provisions Contained in Bill C-2; Credibility Assessment and Questioning of Children; and General Comments.

1.4 Limitations

Certain limitations to the data presented in this report affect the ability to generalize the findings to the judiciary as a whole.  Specifically, it should be kept in mind that participants in the project do not represent a random sample of judges in Canada, nor do they represent a random sample of judges in their respective jurisdictions. Further, the sample was small, also limiting the ability to generalize the findings to the judiciary in Canada.  While we were unable to calculate a response rate since we do not know how many surveys were actually distributed, we do know that the response rate was relatively low, likely in the range of 10% to 20% of the judges surveyed.  Despite these limitations, the survey participants provided valuable information regarding the amendments contained in Bill C-2.

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