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 (cont'd)

2. Review of Bill C-2 Case Law and Legal Literature (cont'd)

2.1 The Competence of Child Witnesses: Canada Evidence Act s. 16.1 (cont'd)

2.1.3    Conduct of the Competency Examination

In R. v. Bannerman[29], it was held that the inquiry should be conducted by the trial judge; the nature and number of the questions will depend on the particular circumstances of the child; the questions should be age appropriate and intelligible; and the appellate courts should defer to the discretion of the trial judge in determining competency unless that discretion has been manifestly abused. The Manitoba Court of Appeal also accepted that it was quite appropriate for Crown Counsel, a parent, or another person to prepare the child for testifying by providing instruction about the importance of truth telling in court before the child comes to court.

In R. v. Ferguson[30], Finch J.A. of the British Columbia Court of Appeal reviewed the case law and also concluded that the court has a discretion to permit counsel to ask questions on the inquiry and the standard of proof is on a balance of probabilities[31].

The Ontario Court of Appeal held in R. v. Peterson[32] that who asks the relevant questions is of little importance, provided the inquiry is fairly conducted under the control of the trial judge. R. v. Leonard[33] and R. v. D.(R.R.)[34] provide examples of instances where the court held that it was appropriate to let the Crown prosecutor ask questions to the child owing to his/her familiarity with the child. If the child is young and appears intimidated or is having difficulty in communicating, it may be preferable to have counsel who has called the child lead this questioning. Similarly, the Alberta Court of Appeal in R. v. F.(R.G.)[35] held that a trial judge is mandated only to control the interrogation and not necessarily to conduct it.

Bala et al[36]. argue that under the 2006 provision, if the issue of the child's competence to testify arises, it will generally be preferable for the trial judge to ask the child questions to ascertain the child's ability to respond to questions. If the judge asks the questions, this should tend to ensure an objective and optimal opportunity to assess the child's competence to answer questions both in examination-in-chief and on cross-examination. However, Bala et al. argue that the case law under the previous provision continues to apply, and that where a child is not responsive to the judge's questions, the trial judge may allow counsel who is calling the witness to ask the child questions that will establish the child's ability to understand and respond to questions. Before deciding whether to have counsel take the lead, however, the trial judge should invite comment from both counsel concerning the advisability of doing so[37].

In R. v. F.(R.G.)[38], the Alberta Court of Appeal held that the ability is to be assessed on the basis of age appropriate questions on matters about which the child might be familiar. The court stated as follows.

Here, it was apparent that R.F. was able to understand questions and recall and relate details concerning her age, school and its location, so that a minimal ability to communicate was established. She also responded when prompted by the Court to reply with a yes or no when asked if she knew why she was in Court. The questions which appeared to render the child mute were focused on her own perception of her ability to hear and speak, and an explanation for her attendance in Court. In our view, those questions were unnecessarily complex as a basis for determining the testimonial competency of a 5 year-old child, and may explain her ensuing silence. The ability to communicate should be assessed on the basis of age-appropriate questions on matters about which the child might be familiar. The child's inability or reluctance to explain her attendance in Court is hardly surprising...

These comments should continue to be applicable to an inquiry into a child's ability to understand questions and respond to them under the present s. 16.1.

2.1.4 Constitutionality of Section 16.1 of the Canada Evidence Act

Given the low standard and simple process for establishing the competence of child witnesses under the new s. 16.1, it is understandable that there is very little reported case law dealing with its interpretation or application. Almost all of the reported cases that mention this provision deal with its constitutionality, and all of these cases have held that it is constitutionally valid.

A Charter challenge to s. 16.1 of the Canada Evidence Act was rejected by Antifaev Prov. Ct. J. in R. v. S.(M.) [39] in a case involving proposed testimony by a 4-year-old child. The court held that the accused's right to a fair trial was not affected by the legislative reform. The court noted that social science research establishes that children's ability to answer questions about such abstract concepts as "truth" and "promise" is not related to whether or not they will in fact tell the truth. The court accepted that while children cannot be asked questions about their understanding of the nature of a promise as a precondition of being allowed to testify, they may still be asked questions about this later in their testimony, with a witness, with their answers going to the weight of their testimony rather than its admissibility. The court observed:

...even a gentle cross-examination will be sufficient to disclose that a child who is mature enough to understand and respond to questions may still not have understood and accepted the duty to tell the truth. The question really is not whether the child understands the duty of telling the truth or can articulate that duty, but whether the child is in fact telling the truth.

The court noted that with very young witnesses with limited verbal abilities and memory, there may be a need for "caution" in relying on their evidence.  Antifaev Prov. Ct. J. observed that an "apparent lack of knowledge of the concepts of truth and falsity and the duty to speak the truth will bring a heightened need for caution." However, she concluded that this need for "caution" if the child cannot demonstrate an understanding of the duty to speak the truth in cross-examination does not render the child's testimony inadmissible, but only affects its weight.

In R. v. S.(M) the defence also argued that because the accused was a young person, he was entitled to more procedural fairness with regards to s. 16.1 of the Canada Evidence Act than would be afforded an adult in his position. The defence argued that the Youth Criminal Justice Act s. 3 required a higher degree of procedural protection, and consequently a competence hearing should be held before determining that the child witness, who was age 4 at the time, was competent to testify. Judge Antifaev rejected this argument, observing that there was no case cited where "it was accepted that a youth charged with an offence is entitled to any more favorable interpretation of a law of general application than an adult who was similarly charged."

In R. v. Persaud[40], the court also upheld the constitutional validity of s. 16.1 of the Canada Evidence Act, with Epstein J. noting that the "objective of Bill C-2 as a whole was to enhance the participation of and respect for, children in the justice system." She also observed that the accused is still afforded a full right to cross-examine a child, including asking questions at that time about whether a child knows the difference between the truth and a lie, and appreciates the importance of telling the truth.

In R. v. J.S.[41], the Supreme Court of British Columbia followed the decision of Antifaev Prov. Ct. J. in R. v. S.(M.), upholding the constitutionality of s. 16.1 of the Canada Evidence Act. The appellant was convicted of sexually assaulting both his son and daughter. Counsel for the defence submitted that his right to a fair trial was adversely affected by the reception of a child's testimony without any evidence that the child understands the duty to tell the truth, having promised to do so. Metzger J. cited the decision of Antifaev Prov. J. in R. v. S.(M.)and emphasized that what is important is not whether or not child witnesses comprehend the duty to tell the truth but rather whether in fact they are telling the truth. It is the trier of fact's job to make this determination, and counsel for the defence can question a child witness's understanding of truth-telling during cross examination, thus preserving the accused's rights to a fair trial[42]. Prof. Lisa Dufraimont commented that R. v J.S. "represents a victory for children," though she questioned whether "there is any real value" to having questions about a child's understanding of the meaning of the "promise to tell the truth" posed in cross-examination[43].

The ruling of Metzger J. in R. v. J.S. on the constitutionality of s. 16.1 of the Canada Evidence Act was upheld by the British Columbia Court of Appeal[44]. The Court of Appeal noted that s. 16.1 prohibits a pre-testimonial inquiry into the proposed child witness's understanding of a promise to tell the truth, unless the applicant demonstrates that there is an issue as to the child's capacity to testify. The Court of Appeal followed the trial level decisions in R. v. S.(M.) and R. v. Persaud and concluded that s. 16.1 is constitutionally valid and that s. 16.1 reflects the procedural and evidentiary evolution of our criminal justice system, in order to facilitate the testimony of children as a necessary step in its truth-seeking goal.  D.M. Smith J.A. wrote: 

52 I do not accept the appellant's argument that if a moral obligation to tell the truth is not established, the testimony of the witness should be inadmissible. Parliament, in enacting s. 16.1, has decided that a promise to tell the truth is sufficient to engage the child witness's moral obligation to tell the truth. Section 16.1 places child witnesses on a more equal footing to adult witnesses by presuming testimonial competence. A child witness's moral commitment to tell the truth, their understanding of the nature of a promise to tell the truth, and their cognitive ability to answer questions about "truth" and "lies" may still be challenged on cross-examination during their testimony; their credibility and reliability may still be challenged in the same manner as an adult's testimony may be challenged. These potential concerns, however, go to the weight of the evidence, not its admissibility.

53 Section 16.1 changes the focus of a child's evidence from one of admissibility to one of reliability. It discards the imposition of rigid pre-testimonial requirements, which often prevented a child from testifying because of their inability to articulate an understanding of abstract concepts that many adults have difficulty explaining, the accuracy of a child's evidence is of paramount importance, not the ability of a child to articulate abstract concepts.

54 I do not accept that a child's presumed testimonial incompetence is a fundamental principle of justice, or that a child's presumed testimonial competence diminishes an accused's right to a fair trial…. I am satisfied s. 16.1 reflects the procedural and evidentiary evolution of our criminal justice system, in order to facilitate the testimony of children as a necessary step in its truth-seeking goal.

55 While enhancing the receipt of probative and relevant evidence, s. 16.1 does not restrict the traditional safeguards for ensuring an accused's right to a fair trial: the opportunity for the accused to see and cross-examine a child witness, to call evidence, to be presumed innocent until proven guilty, and to have the Crown prove the alleged offence beyond a reasonable doubt. Equally significant, the provision maintains a residual discretion with the trial judge to permit a pre-testimonial inquiry if it can be established that there is an issue as to the ability of a child witness to understand and respond to questions.

On May 5, 2009, the Supreme Court of Canada granted leave to appeal in R v. J.S.[45];   a decision is likely to be rendered by that Court before the end of 2010.

2.1.5    Inherent Authority to Instruct Child

While s. 16.1(7) of the Canada Evidence Act makes clear that the answering of questions about the promise is not to be a condition of a child testifying, Bala et al[46]. suggest that the judge still may give the child simple instructions about the role of a witness in court. This might include brief instructions about the importance of telling the truth. The child could also be encouraged and instructed during this initial period about the need to give responses that are as detailed as possible. Children should also be reminded that if there are questions which they do not understand, they should indicate this to the court, and if there are questions that they cannot answer, they should not guess at answers, but rather should respond, "I don't know."

R. v. Jim[47] illustrates the kind of assistance that a judge can provide to a confused child witness. A 16-year-old witness hesitated to make a solemn affirmation to tell the truth as she indicated to the judge that she did not understand the meaning of the word "affirmation." The trial judge explained its definition by providing the synonym "promise." The British Columbia Court of Appeal ruled that this explanation of the word "affirmation" by the judge was an acceptable way to clarify to the witness what was needed from her in order to testify.

2.2 Accommodating Child Witnesses: Introduction

While children can provide reliable evidence, Parliament has recognized the need to treat children differently than adults when they provide evidence in a court of law. There is now a realization that furnishing evidence in court can be extremely traumatic for a child. There are a number of the aspects of testifying which can affect child witnesses, including: the imposing atmosphere of the courtroom; the repetition by the child in public of details of an event that is embarrassing or frightening; being in the presence of someone who may have abused the child and who may have threatened to harm the child or a family member if the abuse were disclosed; and the physical separation from a parent or trusted adult. The accommodation of children is needed not only to reduce the trauma of testifying, but also to ensure that they have a fair opportunity to communicate what they know about the matters in question.

2.2.1 Support Person: s. 486.1

Parliament first enacted legislation in 1993 to allow a support person to be close to a child witness while he or she tenders evidence in court. The original legislation was applicable only to charges related to sexual or violent offences. Section 486.1 now makes an order for a support person mandatory on application by a prosecutor or witness under age 18 in any criminal proceeding, unless the judge concludes that the order would interfere with the proper administration of justice.

This provision appears from reported cases to be invoked fairly often[48], but there are no reported cases that deal with the interpretation or application of s. 486.1 in regard to child witnesses.

The presumption for allowing a support person near a witness under s. 486.1(1) is also applicable to any case where an adult witness is suffering from "mental or physical disability" that would affect the ability to communicate. R. v. Bill [49] offers a discussion of what constitutes a "mental disability" that would affect the ability to communicate and allow for an order to be made under s. 486.1(1) for a disabled adult.

A support person might be a social worker or a victim witness worker. In some cases a parent may also be an appropriate support person, although a judge may decide that this interferes with the proper administration of justice if the allegation involves abuse by the other parent or a relative.

In R. v. C.(D.),  the Nova Scotia Court of Appeal considered whether the trial judge had erred in allowing the mother of the child complainant to act as the support person, as she was also a witness about the child's disclosure and the opportunity of the accused to commit the acts in question[50]. Although the mother testified before the child entered the court, the accused objected to her being a support person as she might have been recalled after her daughter testified. The trial judge allowed the mother to act as a support person. The Court of Appeal concluded that the trial judge's decision to allow the mother to be a support person represented a valid exercise of judicial discretion. The appellant argued that allowing the mother to sit next to her daughter and listen to her testimony effectively denied him the right to question the mother after the complainant testified in relation to his belief that the complainant's evidence may have been tainted by the older sister, who did not testify.

The Court of Appeal concluded that the appellant seemed "to confuse the opportunity for tainting with the reality of tainting…So long as the judge was aware of this potential and appropriately addressed it when considering all the evidence, there is no cause to intervene". The Court of Appeal held that the trial judge was "acutely aware of the possibility of witness tainting and addressed this directly in her decision". The Court further noted that the appellant had the full opportunity to explore the issue of tainting with both the complainant and the mother during their respective cross-examinations. The Court of Appeal did, however, note that in making her decision the trial judge appeared to concentrate only on s. 486.1(1), which presumptively allows the witness to choose the support person and did not appear to address s. 486.1(4) which presumptively excludes a witness as a support person "unless necessary for the proper administration of justice". The Court of Appeal suggested that the failure to address s. 486.1(4) might have been a “procedural irregularity” but did not prejudice the accused in this case as the mother was not in fact recalled as a witness.

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