The courtroom is not a friendly place for children. It is an adult forum, run by adults and intended for adults. Yet, as society confronts the serious social problem of crimes against children, more children are being called to the witness stand. In particular, the number of prosecutions for sexual and physical abuse of children has increased significantly in recent years. These cases bring into play their own special dynamics. The child is called upon to condemn his or her abuser - often a loved
one. Moreover, the child’s testimony is essential in that often there are likely to be no other witnesses to the crime; it is the child’s word against the accused’s. In this situation, the young complainant faces enormous stress and trauma. It is within this context that Parliament acted to facilitate the giving of evidence by children in the prosecution of sexual offences against children. A number of helpful procedures were introduced:
· the public may be excluded from the courtroom;
· a support person may be permitted to be close to the witness while testifying;
· the child may be permitted to testify outside of the courtroom or behind a screen;
· the accused will not be permitted personally to cross-examine the child witness unless the trial judge so allows;
· a publication ban may be imposed to protect the child’s identity; and
· a child’s videotape evidence is admissible at the trial.270We will examine two of the most important reforms - namely, allowing children to testify without facing the accused, and the introduction of videotaped evidence given by child witnesses.
Subsection 486.2 (1) of the Criminal Code provides that:
Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
Subsection 486.2 (1) applies to all witnesses, who at the time of trial are under the age of eighteen. This section must also be read with subsection 486.2 (7), which stipulates that the accused, judge, and jury must be able to watch the testimony by means of closed-circuit television or
"otherwise," and that the accused must be permitted to communicate with counsel while watching the testimony.
Under our law an accused has no constitutional right to "face one’s accuser" and the Supreme Court of Canada has consistently upheld the constitutionality of legislation that allows a witness to testify out of the physical presence or view of the accused.271The fundamental purpose of a trial is to seek the truth; to that end, the legislation is designed to facilitate the obtaining of relevant evidence from children and vulnerable witnesses. Section 486.2 is but a testimonial aid, which does not preclude the testing of the witness’s evidence through cross-examination.
The starting point for children under the legislation is that upon application a court "shall" grant the order, unless the order "would interfere with the proper administration of justice." There is a presumption in favour of use. Defence counsel have expressed concern over prejudice to the accused in jury trials. They argue that protecting the complainant in such a way may give the appearance that the complainant is in fear of the accused, or create the impression that the accused must really be guilty. To address these concerns, the Ontario Court of Appeal has stated that it should be the usual practice for the judge to instruct the jury that the use of the screen is a procedure that is allowed in cases of this kind by reason of the youth of the witnesses and that, since it has nothing to do with the guilt or innocence of the accused, the jury must not draw any inference of any kind from its use and, specifically, that no adverse inference should be drawn against the accused because of it.272The Supreme Court of Canada approved of such an instruction, but declined to make it mandatory.273Section 486.2(2) applies to adult witnesses; they too may apply to testify outside the courtroom or behind a screen. For adult witnesses the order is discretionary. The onus is on the witness or Crown to satisfy the court that "the order is necessary to obtain a full and candid account from the witness of the acts complained of."
Section 715.1 of the Criminal Code provides:
In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the of-fence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
Section 715.1 is designed to achieve two main purposes. First, it aids in the preservation of evidence and the discovery of truth. The videotape preserves an early account of the child’s evidence, given in a more natural setting, which may well provide the...