R. v. A.F.L., 2000 BCCA 134

• Judge: Lambert, Hall and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 15, 2000
• Jurisdiction: British Columbia
• Citations: 2000 BCCA 134;(2000), 138 B.C.A.C. 6 (CA)

R. v. A.F.L. (2000), 138 B.C.A.C. 6 (CA);

    226 W.A.C. 6

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. JN.023

Regina (respondent) v. A.F.L. (appellant)

(CA025676; 2000 BCCA 134)

Indexed As: R. v. A.F.L.

British Columbia Court of Appeal

Lambert, Hall and Saunders, JJ.A.

February 15, 2000.

Summary:

A young offender was convicted of sexual assault. The young offender appealed against conviction.

The British Columbia Court of Appeal, Lambert, J.A., dissenting in the result, allowed the appeal and ordered a new trial.

Evidence - Topic 4543

Witnesses - Attendance and oath - Oath - Child of tender years - The young victim of an alleged sexual assault was aged eight at the time of trial - The trial judge deter­mined that this young witness was not able to be sworn and proceeded to see if the child was qualified to communicate the evidence consequent upon promising the court to tell the truth - The British Col­umbia Court of Appeal held that the very brief inquiry made by the trial judge was not sufficient to enable him to conclude that the child would understand the duty to tell the truth and understood what was required concerning a promise to tell the truth - The court ordered a new trial.

Cases Noticed:

R. v. C.W.G. (1994), 39 B.C.A.C. 264; 64 W.A.C. 264; 88 C.C.C.(3d) 240 (C.A.), refd to. [para. 4].

R. v. Ferguson (L.D.) (1996), 85 B.C.A.C. 33; 138 W.A.C. 33; 112 C.C.C.(3d) 342 (C.A.), refd to. [para. 4].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 16(1), sect. 16(3) [para. 2].

Counsel:

P.M. Kendall, for the appellant;

C.M. Sweeney, Q.C., for the Crown, re­spondent.

This appeal was heard before Lambert, Hall and Saunders, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on February 15, 2000, when the following opinions were delivered orally:

Hall, J.A. (Saunders, J.A., concurring) - see paragraphs 1 to 7, 15 to 16;

Lambert, J.A. (dissenting in the result) - see paragraphs 8, 10 to 14, 18 to 19;

Saunders, J.A. - see paragraphs 9, 17.