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

2. Review of Bill C-2 Case Law and Legal Literature

2. Review of Bill C-2 Case Law and Legal Literature

In 1988 Parliament enacted very significant legislative reforms to the Criminal Code and the Canada Evidence Act to facilitate children coming to court to testify in criminal cases, with further reforms in 1993 and 1998. In 2005, Parliament enacted amendments to the earlier statutory reforms to further facilitate the testimony of children and other vulnerable witnesses. These amendments came into effect on January 2, 2006 [4].

This chapter addresses the first research question outlined in Section 1.2:

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?

The discussion which follows reviews the provisions of Bill C-2 that relate to child and adult vulnerable witnesses and the reported case law which has applied and interpreted those provisions, and considers the Canadian legal literature[5] which discusses those provisions and the case law. The focus is on cases decided since January 2, 2006 (and reported prior to June 30, 2009 the cut-off date for the review). In order to understand the significance of this recent case law, there is also limited discussion of the pre-2006 case law that interpreted the previous provisions, though the discussion of the older case law is not comprehensive.

2.1 The Competence of Child Witnesses: Canada Evidence Act s. 16.1

The reforms to the Canada Evidence Act that came into effect in 2006 significantly changed the process and standard for assessing the competence of children to testify in criminal proceedings. Prior to the Bill C-2 amendments, a child under the age of 14 offered as a witness could testify under oath, on affirmation or after promising to tell the truth. The test for testifying on a promise was twofold, requiring the child to have:(1) the ability to answer questions that demonstrate an understanding of the importance of truth telling, and (2) the ability to meaningfully communicate in court proceedings. If the child lacked the maturity and mental capacity to satisfy the test for giving testimony, the child was incompetent to testify in any form. This old test and the jurisprudence concerning it will continue to apply to persons over 14 years of age whose mental capacity is challenged (s. 16(1) Canada Evidence Act, as amended).

Section 16.1(1) now provides that a person under 14 years of age is presumed to have the capacity to testify. The test for the receipt of a child's evidence is simply that the child is to be able to “understand and respond to questions.” It is for the party challenging the child's capacity to establish that there is an issue as to capacity to understand and respond to questions (s. 16.1(4)). A child under the age of 14 is neither to take an oath nor make a solemn declaration, but must promise to tell the truth. No inquiry is permitted into a child's understanding of the meaning of a “promise,” or the meaning of concepts like “truth” or “lie” (s. 16.1(7)). The evidence given by a child after a promise has the same legal effect as if it were taken under oath (section 16.1(8)).

2.1.1 Elements of Testimonial Competence under s. 16.1

The competency provision of s. 16.1 of the Canada Evidence Act begins with the statement in s. 16.1(1) that children are “presumed to have the capacity to testify,” while s. 16.1(4) places a burden on the “party who challenges the capacity” of a child to “satisfy the court that there is an issue as to the capacity” of the child “to understand and respond to questions.” Subsection 16.1(4) might suggest that there is an onus on the party not calling the child as a witness (usually the accused) to raise the issue of competence. However, s. 16.1(5) also provides that if the judge “is satisfied that there is an issue” as to a child's capacity to “understand and respond to questions,” then before permitting the child to testify, the judge “shall conduct an inquiry” to determine whether the child is “able to understand and respond to questions.” Thus Bala et al[6]. argue that the words of s.16.1(5) allow the court itself or the party calling the child witness (usually the Crown) to also raise the issue of a child's competence, though the effect of ss. 16.1(1) and (4) is that there will be a presumption of competence at the inquiry.

Under the test in s. 16.1(5) the focus is now on whether the child is “able to understand and respond to questions,” words that are similar to a part of the pre-2006 inquiry that focused on whether the child was “able to communicate the evidence.” Most significantly, however, s. 16.1(7) makes clear that unlike under the pre-2006 provision, there is to be no inquiry into the child's understanding of the meaning of such abstract concepts as “truth,” “lie” and “promise.”

In R. v. Marquard,[7] McLachlin J. considered the interpretation of the phrase in the former s. 16 “able to communicate the evidence,” and held that testimonial competence includes: (1) the capacity to observe (including interpretation);(2) the capacity to recollect; and (3) the capacity to communicate (at 219-220):

The threshold is not a high one. What is required is the basic ability to perceive, remember and communicate. This established, deficiencies of perception and recollection of the events at issue may be dealt with as matters going to the weight of the evidence.

The former competence inquiry concerned the capacity of the child to communicate about past events in general. A child was required to be capable of giving more than “yes” or “no” responses to straightforward questions[8]. The courts also required that the child demonstrate an ability to distinguish between fact and fiction, and a capacity and a willingness to relate to the court the essence of what happened to her.[9] Bala et al. suggest that the new test requires that the same communication and memory criteria are to be satisfied, despite the change in wording, which now focuses on the “ability to understand and respond to questions.”[10] The issue is whether the child has the basic cognitive and language abilities, and sufficient social skills, to give meaningful answers to questions in the court setting. Whether a child witness is able to understand and respond to questions will be a matter for the judge to determine, and expert testimony will normally not be admissible about this issue.[11] In “exceptional circumstances,” where the child would be so traumatized by the experience of appearing in court even for the limited purpose of establishing the inability to understand and respond to questions, an expert might be called to establish that the child is not able to testify; if this is established to the satisfaction of the court, this may be a ground for establishing the “necessity” for the admission of hearsay evidence instead of having the child testify.

Bala et al.[12] suggest that in practice the application of the current test — the ability to understand and respond to questions — is likely to be very similar to that part of the old inquiry which focused on the child's capacity to meaningfully communicate evidence in court. They argue that, as required by the Supreme Court in applying the provision in the former s. 16(1) in R. v. Marquard[13] there should be a relatively brief inquiry into whether the child has the capacity to remember events and answer questions about those events. The inquiry into the child's capacity should be conducted by having the judge or counsel ask the child questions about a non-contentious past event.

In assessing the competence of children, it is important for judges to be mindful of the particularities of children's cognitive and language abilities at various stages of development. For example, in R. v. L.(D.O.)[14], L'Heureux-Dubé J. observed:

... social science data... makes clear that recollection decreases in accuracy with time... although children may have clear and accurate memories at the time of the occurrence, studies illustrate that children's memories may fade faster than those of adults.

Likewise, McLachlin J. noted in R. v. W.(R.)[15] that since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J., in R. v. B.(G.),[16] held that while children may not be able to recount precise details and communicate the “when” and “where” of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.[17]

Therefore, a competence inquiry which focuses on abstract concepts or expects a child to be able to provide detailed information about past events may not fairly assess the child's basic ability to “understand and respond to questions.” The test now simply requires that a child be able to cognitively process a question and to verbally respond to that question. Of course, if a party has not raised the issue of competence, and the court itself is not satisfied there is an issue, a competence inquiry will not be held at all.

In R. v. Prue,[18] Bovard J. noted the presumption of competence in section 16.1(1) and explained the process that he followed with an 11-year-old complainant who had learning disabilities and could not remember the name of his school or what grade he was in “at first” (i.e., during the qualification process).

Out of an abundance of caution, I questioned him on various things such as his schooling, his friends, what was the last movie that he went to see and other such matters. I found that he understood my questions and that his responses were coherent and reasonable. He demonstrated to my satisfaction that he could understand and respond to questions adequately and that his memory was fine. He promised to tell the truth, therefore I allowed him to testify. Later, while giving his evidence, he remembered that he was in grade six.

Overall, the required capacity under the new section 16.1 (http://laws.justice.gc.ca/en/C-5/section-16.1.html) is a more concrete and focused inquiry. The new test for child witnesses prohibits any questions regarding the meaning of such abstract concepts as “truth”, “lie” and “promise” during the competenecy inquiry for a child witness.

In R. v. D.I.[19], the court ruled on whether to admit the hearsay statement of a 22-year-old woman with a mental age of 3 years.  In holding that she was not competent to testify, the court found that she had not met the criteria required by s.16 of the Canada Evidence Act:“she had no concept of truth or lies, nor the consequences of telling a lie.” (For persons age 14 or older at the time of testifying, the old test of section 16 of the Canada Evidence Act continues to apply, and the court must be satisfied that the witness “understands the nature of an oath or solemn affirmation.”)

2.1.2 The “Promise to Tell the Truth”

Section 16.1 of the Canada Evidence Act now requires that a child testify under a “promise to tell the truth.” Formerly, an inquiry was required as to every child's ability to testify under oath, resulting in an often unhelpful focus on a child's ability to understand the particular nature of an oath rather than on her ability to undertake to testify truthfully[20].

Under the previous s. 16, where the child was able to communicate the evidence but did not understand the nature of an oath, she could give unsworn testimony upon promising to tell the truth. It was held that this required an actual commitment to tell the truth; an inference was insufficient[21], although the commitment could be articulated in a variety of ways. Subsection 16.1(7) now makes it clear that no questions are to be asked regarding the child's understanding of the nature of the “promise to tell the truth” as part of the competence inquiry. The present provision reflects the reality that children are often unable to articulate the meaning of such abstract concepts as “truth” and “lie,” even though they may well know the difference between the truth and a lie. Psychological research has established that there is no relationship between a child's ability to define “truth” and whether a child will tell the truth[22]. Given these findings, Parliament eliminated the possibility of any questioning of children about such abstract concepts as “truth,” “lie” or “promise.”

As with adults who take the oath, a child who promises to tell the truth is to be accepted as having made a commitment to do so, though of course it is for the trier of fact to determine the veracity and reliability of the testimony. However, as further discussed below, in a number of cases, including R. v. J.S.[23], Metzger J., the court held that while a child cannot be questioned about his or her understanding of the meaning of the “promise to tell the truth” at the competence inquiry, counsel for the defence can question a child witness's understanding of truth-telling during cross-examination, with the answers possibly affecting the weight or credibility of the child's evidence, but not its admissibility. Prof. Lisa Dufraimont commented on the decision in R. v J.S., questioning whether, in light of the psychological research and the enactment of s. 16.1(7) “there is any real value” to having such questions posed in cross-examination[24].

In R v. F.(J.)[25], [2006] A.J. No. 972(Prov. Ct.) in a video-recorded interview that was admitted in evidence under s. 715.1, the 7-year-old complainant was asked questions by a police interviewer about her understanding of the difference between the truth and a lie. The court accepted the child's testimony and convicted the accused, with Ho Prov. Ct. J. commenting (at para. 39): “not being able to provide a satisfactory definition of the difference between a truth and a lie does not negate the ability of C.S. [the complainant] to provide reliable evidence to the court.”

Subsection 16.1(6) specifically requires a child to make a “promise to tell the truth” before testifying. Bala et al[26]. suggest that this is best done by having the child explicitly make the “promise,” but it should suffice to obtain an affirmative answer to the question: “Do you promise to tell the truth?” In the rare event that a child refuses to make the promise, then like an adult refusing to be sworn or to affirm, the witness should be precluded from testifying[27].

Section 16.1(8) now makes it clear that the fact that the child testifies on a promise rather than under oath does not mean the testimony should be afforded less weight, which position had been espoused by the courts prior to this amendment. However, it would seem that a judge still has the discretion to warn a jury about the dangers of convicting upon the basis of the unconfirmed and unsworn testimony of a child witness where warranted by the circumstances[28].

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