R. v. J.S., (2008) 261 B.C.A.C. 52 (CA)

• Judge: Levine, Chiasson and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 04, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 261 B.C.A.C. 52 (CA);2008 BCCA 401

R. v. J.S. (2008), 261 B.C.A.C. 52 (CA);

    440 W.A.C. 52

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. OC.026

Regina (respondent) v. J.Z.S. (appellant)

(CA035342; 2008 BCCA 401)

Indexed As: R. v. J.S.

British Columbia Court of Appeal

Levine, Chiasson and D. Smith, JJ.A.

October 10, 2008.

Summary:

The accused was convicted in Provincial Court of sexual assault of his two children. He appealed.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. D52, dismissed his appeal. He sought leave to appeal respecting several questions of law. Crown counsel agreed that the accused had raised some questions of law on which leave should be granted. They were whether s. 486.2 of the Criminal Code and s. 16.1 of the Canada Evidence Act, which both governed the manner in which children testified, violated s. 7 and/or s. 11(d) of the Charter and, if so, whether the infringement was justified by s. 1 of the Charter.

The British Columbia Court of Appeal, per Huddart, J.A., granted leave to appeal respecting those questions of law only. The appeal proceeded.

The British Columbia Court of Appeal dismissed the appeal. Neither provision disturbed the traditional safeguards of trial fairness. Both provisions were constitutionally valid and represented the next step in legislative reforms to facilitate the admissibility of relevant and probative evidence from children.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - Section 486.2 of the Criminal Code provided that, upon application, a child witness (under age 18), or a vulnerable witness (mentally or physically disabled), would presumptively testify with the assistance of a testimonial aid (testify outside the court room on closed circuit TV, testify behind a screen or other device) - An accused charged with sexual assault argued that s. 486.2 violated his right to a fair trial under ss. 7 and s. 11(d) of the Charter - He alleged that the elimination of the requirement to provide case-specific evidence of a need for a testimonial aid prevented the accused from receiving a fair trial because the decision-making power for restricting the accused's right to confront the complainant had shifted from the court to the Crown or applicant - The British Columbia Court of Appeal rejected the argument - Under our criminal justice system, an accused had no constitutional right to a face-to-face "confrontation" with the complainant - Parliament had deemed that a pre-testimonial inquiry into the need for a testimonial aid was no longer necessary - Section 486.2 was merely the next step in the evolution of the rules of evidence - These rules sought to facilitate the admissibility of relevant and probative evidence from children and vulnerable witnesses while maintaining the traditional safeguards for challenging the reliability of their evidence - Rules of evidence had to be construed in light of a criminal justice system that encouraged the goal of "attainment of truth" - Over the years, the use of testimonial aids had been subject to ongoing procedural and evidentiary changes, which might continue to evolve - In this case, the changes were not in conflict with constitutionally guaranteed principles of fundamental justice - The presumptive nature of s. 486.2 did not dispense with any of the traditional safeguards for ensuring that an accused received a fair trial - The reasoning of the Supreme Court of Canada in R. v. Levogiannis and R. v. D.O.L. continued to apply to the current provision - See paragraphs 28 to 44.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - Under s. 16.1 of the Canada Evidence Act, a child's testimonial competence, which included his or her capacity to testify, was now presumed unless the challenging party satisfied the court that the child's capacity to testify was in issue - A pre-testimonial inquiry into the proposed child witness's understanding of a promise to tell the truth was prohibited, unless the applicant demonstrated that there was an issue as to the child's capacity to testify - Even then, s. 16.1 limited the pre-testimonial inquiry to questions about a child's ability to understand and respond to questions - An accused alleged that s. 16.1 violated his right to a fair trial under ss. 7 and s. 11(d) of the Charter - He argued that it was unsafe for a court to receive the evidence of a child witness unless he or she was able to demonstrate an understanding of the moral obligation to tell the truth - The British Columbia Court of Appeal stated that "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." - See paragraphs 51 and 52.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - Under s. 16.1 of the Canada Evidence Act, a child's testimonial competence, which included his or her capacity to testify, was now presumed unless the challenging party satisfied the court that the child's capacity to testify was in issue - A pre-testimonial inquiry into the proposed child witness's understanding of a promise to tell the truth was prohibited, unless the applicant demonstrated that there was an issue as to the child's capacity to testify - Even then, s. 16.1 limited the pre-testimonial inquiry to questions about a child's ability to understand and respond to questions - An accused alleged that s. 16.1 violated his right to a fair trial under ss. 7 and s. 11(d) of the Charter - The British Columbia Court of Appeal rejected the argument - The court did not accept that a child's presumed testimonial incompetence was a fundamental principle of justice, or that a child's presumed testimonial competence diminished an accused's right to a fair trial - Section 16.1 reflected 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 - While enhancing the receipt of probative and relevant evidence, s. 16.1 did 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 maintained a residual discretion with the trial judge to permit a pre-testimonial inquiry if it could be established that there was an issue as to the ability of a child witness to understand and respond to questions - See paragraphs 45 to 59.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See all Civil Rights - Topic 3126 ].

Civil Rights - Topic 3159

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to confront witnesses - [See first Civil Rights - Topic 3126 ].

Civil Rights - Topic 3165.5

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Evidence of children - [See all Civil Rights - Topic 3126 ].

Criminal Law - Topic 138

General principles - Rights of accused - Right to confront witnesses - [See first Civil Rights - Topic 3126 ].

Criminal Law - Topic 5468

Evidence and witnesses - Evidence of children - Special orders re testimony by sexual assault complainant or witness - [See first Civil Rights - Topic 3126 ].

Evidence - Topic 4543

Witnesses - Attendance and oath - Oath - Child of tender years - [See second and third Civil Rights - Topic 3126 ].

Evidence - Topic 4549

Witnesses - Attendance and oath - Oath - Promise rather than oath - [See second and third Civil Rights - Topic 3126 ].

Cases Noticed:

R. v. Levogiannis, [1993] 4 S.C.R. 475; 160 N.R. 371; 67 O.A.C. 321, refd to. [para. 11].

R. v. Persaud (H.), [2007] O.T.C. Uned. 829; 151 C.R.R.(2d) 245 (Sup. Ct.), refd to. [para. 13].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 13].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 13].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 108 D.L.R.(4th) 47; 85 C.C.C.(3d) 193; 25 C.R.(4th) 1; 108 D.L.R.(4th) 47; 1993 CarswellOnt 995, refd to. [para. 25].

R. v. Levogiannis (1990), 43 O.A.C. 161; 1 O.R.(3d) 351 (C.A.), refd to. [para. 32].

R. v. Ross (1989), 90 N.S.R.(2d) 439; 230 A.P.R. 439; 49 C.C.C.(3d) 475 (C.A.), refd to. [para. 34].

R. v. M.E.R. - see R. v. Ross.

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 38].

Coy v. Iowa (1988), 487 U.S. 1012, refd to. [para. 40].

Maryland v. Craig (1990), 497 U.S. 836, refd to. [para. 40].

R. v. D.J.X.; R. v. S.C.Y.; R. v. G.C.Z. (1989), 91 Cr. App. Rep. 36 (C.A.), refd to. [para. 40].

R. v. Accused, [1989] 1 N.Z.L.R. 66 (C.A.), refd to. [para. 40].

R. v. Pal (R.A.) et al., [2007] B.C.T.C. Uned. F59; 2007 BCSC 1493, refd to. [para. 40].

R. v. Letourneau (D.) and Tremblay (J.L.) (1994), 53 B.C.A.C. 81; 87 W.A.C. 81; 87 C.C.C.(3d) 481 (C.A.), refd to. [para. 40].

R. v. P.M. (1990), 42 O.A.C. 153; 1 O.R.(3d) 341 (C.A.), refd to. [para. 40].

R. v. Aikoriogie, 2004 ONCJ 96, refd to. [para. 40].

R. v. M.A.M. (2001), 149 B.C.A.C. 89; 244 W.A.C. 89; 2001 BCCA 6, refd to. [para. 46].

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. 46].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 46].

R. v. Rockey (S.E.), [1996] 3 S.C.R. 829; 204 N.R. 214; 95 O.A.C. 134, refd to. [para. 51].

R. v. Bickford (1989), 34 O.A.C. 34; 51 C.C.C.(3d) 181 (C.A.), refd to. [para. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 486(2.1) [para. 18].

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 16.1 [para. 22].

Evidence Act (Can.) - see Canada Evidence Act.

Authors and Works Noticed:

Badgley Report - see Canada, Report of the Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children.

Canada, Report of the Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children (Badgley Report) (1984), vol. 1, pp. 373, 374 [para. 58].

Child Witness Project, London Family Court Clinic of Ontario Report: Brief on Bill C-2: Recognizing the Capacities & Needs of Children as Witnesses in Canada's Criminal Justice System, generally [para. 27].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 48].

Counsel:

C. Brennan, for the appellant;

M. Ainslie, for the respondent.

This appeal was heard at Vancouver, British Columbia, on September 4, 2008, before Levine, Chiasson and D. Smith, JJ.A., of the British Columbia Court of Appeal. The following judgment was delivered by D. Smith, J.A., on October 10, 2008.