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

4. Discussion and Conclusions

A review of the reported case law applying Bill C-2 and the survey of judges reveals that these legislative reforms have facilitated the giving of evidence by children in criminal proceedings, and that they are generally well received by the judiciary. In the survey, almost all of the judges indicated that they consider Bill C-2 to be useful, and a clear majority considered that the provisions are not potentially unfair to accused persons. In the reported case law, all of the Charter-based challenges to the new provisions have failed, and the courts are generally interpreting the new provisions in a way that has helped children to testify.  The Supreme Court will rule on the constitutionally on a number of the provisions in Bill C-2 in a decision that is likely to be rendered in 2010.

The new competency test in Canada Evidence Act s. 16.1 has clearly simplified and shortened the process of qualification for child witnesses.  In a significant portion of cases, the child is accepted as competent without inquiry, often based on interview material disclosed to the defence before the hearing. In the survey, judges reported that in about one-fifth of cases with the youngest age group (3-5 years), there was no competency inquiry, rising to almost three-quarters with the older age group (10-13 years). In the reported case law, there were no instances of judges writing decisions to explain why a child is incompetent to testify. In the survey, while some children in all age groups were found incompetent, even in the youngest age group (3-5 years) almost one-half of the judges reported that they had never found a child incompetent under the new provision. Judges reported that the average length of time spent on a competency inquiry is now 12 minutes. The case law reveals that judges may allow questions about the child's understanding of the concepts of truth and lie during cross-examination, though published commentary raises the appropriateness of such questions.

The courts have accepted that in enacting ss. 486.1, 486.2, and 486.3, Parliament intended to increase the use of accommodations for child witnesses, by increasing the use of support persons, closed-circuit television and screens, and counsel appointed to cross-examine child witnesses where accused persons are self-represented. There are very few reported cases in which use of an accommodation was requested and the accused satisfied the court that use of the accommodation would "interfere with the administration of justice." The courts, however, remain alive to the need to protect the rights of the accused; in the reported cases, use of an accommodation is denied if the appropriate equipment is not available, or the conduct of the witness or nature of the evidence would mean that use of the accommodation would render the trial unfair.

The survey suggests that applications under s. 486.1 to allow a support person to sit near a child or vulnerable adult witness are made in a minority of cases involving children and rarely in cases with adults. When an application is made under s. 486.1 for a child witness, it is almost always successful, and usually successful with a vulnerable adult. The survey results suggest that the most common support persons for child witnesses are family members and victim services workers. In the survey, some judges raised some concerns about the implementation of s. 486.1, in particular that in some cases the support person may influence the witness.

The case law review reveals that judges recognize that Bill C-2 establishes a "high standard" for the accused to satisfy if the court is to reject an application for use of closed-circuit television or a screen with a child witness under s. 486.2. The survey reveals that applications under s. 486.2 for screens or closed-circuit televisions are most likely to be made at the pre-trial hearing conference. The survey suggests that an application under s. 486.2 is made in a minority of cases involving child witnesses, and is more likely to be for use of a screen than closed-circuit television, but when an application is made, it is almost always successful. The case law review and survey suggest that there continue to be logistical and technical concerns about the equipment and, in the survey, one-half of the judges reported that they had experienced problems in arranging for appropriate equipment.

The survey reports that appointment of counsel of s. 486.3 to question a vulnerable witness rather than allowing a self-represented accused to do this is more likely to occur in provincial court, perhaps because accused persons in superior court are more likely to have counsel. The survey also revealed that applications under s. 486.3 are made most often at the pre-trial hearing conference, and the survey and case law review indicate that such applications are almost always successful. The survey, case law review, and published commentary reveal concerns about the implementation of s. 486.3, in particular about how counsel is to be paid. The survey also reveals some judicial concern about delay that may result when an order is made under s. 486.3, especially if it is not clear how counsel is to be paid, and about how counsel can cross-examine only one witness without being involved in the entire trial. Despite the variation in the reported case law about how the courts are dealing with issues of payment for counsel and how counsel is being selected for s. 486.3 orders, the survey and case law review indicate that these issues are being adequately addressed; there are no reports of cases in which proceedings have had to be stayed because counsel could not be appointed.

The case law review and survey reveal that applications under s 715.1 to have a video-recorded interview with the child admitted in evidence are almost never denied. The survey indicates that applications for the video-recorded evidence provision are made most often during the pre-trial hearing conference. The case law review suggests that judges recognize that the video-recorded interview may be given considerable weight, since it is made closer to the events in question when a child is likely to be able to give a fuller and more accurate description of the events at issue. The survey suggests that the Crown only seeks to have a video-recorded interview admitted in less than half of cases, and that s. 715.2 is in practice not being used with vulnerable adult witnesses.

When asked about the credibility of witnesses in general in the survey, judges reported that the younger the witness, the more likely they are to make an unintentional false statement, for example, due to their memory of events being imperfect. Conversely, in the survey, judges reported that they perceived adults and older children to be more likely to be dishonest and make intentionally false statements. Judges in the survey also reported concerns that children who are testifying are frequently asked overly complex or developmentally inappropriate questions, especially by defence counsel. The case law review revealed that even in cases where children have been afforded accommodation, there continue to be cases where the courts acquit persons charged with offences against children, even if the judge believed the child, if the court was satisfied that the Crown did not prove guilt beyond a reasonable doubt.[134]

There is very little case law pertaining to vulnerable adult witness provisions. The survey indicated that there have been relatively few applications for the use of testimonial aids for adults. When applications are made for the use of testimonial aids for adults, they are generally successful, but they are less likely to be granted than applications for child witnesses.

In line with the findings from the case law review, overall, the judges who completed the survey were very positive about the amendments contained in Bill C-2. The vast majority of judges were familiar with the amendments and a substantial proportion had used them. Almost all of the judges reported that the amendments are useful, and over three-quarters did not think they might render the trial unfair to the accused. Despite some concerns about implementation of these provisions as reflected in reported case law and survey comments, the amended provisions for child and vulnerable adult witnesses contained in Bill C-2 appear to be working well. Judges in both levels of court are familiar with the amendments and are using them.

[134] While one might speculate that there have been more persons accused of offences against children who have been found guilty of offences against children since the new legislation on child witnesses came into effect in January 2006, there is not as yet any data to support this hypothesis. Statistics Canada Criminal Code convictions data, when reported, may allow some testing of this hypothesis. There are many examples of accused persons being acquitted despite accommodations afforded to child witnesses; for a few such decisions from the latter part of 2007, see R. v. A.F., 2007 BCPC 345 per Skilnick Prov. J.; R v. Black, [2007] B.C.J. 2035 (S.C.) per Parrett J.; R v. F.S., [2007] O.J. 4677 (S.C.) per Spies J.; R v. Flores, 2007 BCSC 1505 per McEwan J.; and R v. C.B., [2007] O.J. 4580 (S.C) per Wein J.