Testimonial Aids

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 111-139

111

Testimonial Aids

5

I. Introduction.............................................. 112

II. The Testimonial Aids....................................... 112

A. Exclusion of the Public................................ 112

B. Support Person .....................................116

C. Remote or Obscured Testimony (Witness Screens/CCTV) ...

D. Appointment of Counsel to Conduct Cross-Examination .... 

E. Non-Disclosure of a Witness’s Identity................... 

F. Publication Bans .................................... 

G. Video-Recorded Evidence ............................. 

© [2023] Emond Montgomery Publications. All Rights Reserved.

112Prosecuting and Defending Oences Against Children

I. Introduction

Children require special treatment to facilitate the attainment of truth in a judicial pro-

ceeding in which they are involved. These special requirements stem not so much from

any disability of the child witness, but from the fact that our ordinary criminal and court-

room procedures have been developed in a time when the participation of children in

criminal justice proceedings was neither contemplated nor plausible. A “court system,

established with adult defendants and witnesses in mind, does not easily accommodate

children’s special needs.”1

This chapter deals with those sections of the Criminal Code that allow for assistance

to child witnesses during the course of their testimony, specifically section 486 (exclu-

sion of the public), section 486.1 (support persons), section 486.2 (remote or obscured

testimony), section 486.3 (appointment of counsel to conduct cross-examination),

section 486.4 (publication bans), and section 715.1 (video-recorded evidence).2 These

sections were created to deal with the special needs of the child witness and other

vulnerable individuals. In this regard, one ought to include adult witnesses who allege

historical child abuse.

It is important that when reviewing the case law dealing with these sections, coun-

sel keep in mind that the various sections discussed below have changed over time.

When reviewing the relevant cases, counsel should be alert to which iteration of the

statute was in force at the time of the decision.

II. The Testimonial Aids

A. Exclusion of the Public

1. Statutory Authority

Exclusion of public

486(1) Any proceedings against an accused shall be held in open court, but the presid-

ing judge or justice may, on application of the prosecutor or a witness or on his or her

own motion, order the exclusion of all or any members of the public from the court room

for all or part of the proceedings, or order that the witness testify behind a screen or

other device that would allow the witness not to be seen by members of the public, if the

judge or justice is of the opinion that such an order is in the interest of public morals, the

maintenance of order or the proper administration of justice or is necessary to prevent

injury to international relations or national defence or national security.

1 R v L (DO), [1993] 4 SCR 419, [1993] SCJ No 72 (QL) at para 36.

2 RSC 1985, c C-46; the Ontario Ministry of the Attorney General’sCrown Prosecution

Manual, online: <http://www.ontario.ca/document/crown-prosecution-manual>, con-

tains specific directives respecting testimonial aids that Ontario prosecutors are expected

to follow. Seedirective 27, Offences Against Children, and directive 34, Testimonial Aids

andAccessibility.

© [2023] Emond Montgomery Publications. All Rights Reserved.