The Child Witness Project: Examining the Assessment of the Competence of Child Witnesses

• Author: Victoria Talwar, Rod Lindsay, and Kang Lee
• Pages: 77-92

77

 

e Child Witness Project: Examining the

Assessment of the Competence of Child

Witnesses

 ,  ,   

Prior to the late s, there was a general bel ief that child witnesses were in-

herently unreliable. Due to thi s prevailing aitude, ch ild witnesses rarely ap-

peared in court. However, over the la st three decades, court cases involv ing

child witnesses have i ncreased dramat ically and children are now regular ly

called to testi fy. Yet i n this period, c ontroversy remai ned about c hildren’s

testimony. One critical cha llenge to chi ldren te stifyi ng in cour t was the

competency inquir y or voir dire. In ma ny cou ntries, including Canada, a

child was permie d to testif y only if the judge was satised that the child was

“competent.” is wa s ascertai ned through a n inquir y, oen carried out by

judges or prosecutors. Child w itnesses oen found these inquiries confus-

ing and int imidating. If the judge was not satised with the ans wers and the

child was not permied to testif y, a person guilty of abusi ng the child might

be acquied. e diculty t hat the questioning posed a nd children’s inabil-

ity to give satisf actory answer s sometimes prevented those who wou ld pot-

entially have been capable of giving impor tant evidence from testify ing. is

chapter discusses research conducted by the C hild W itness Project under

We would lik e to thank Nic holas Bala for h is generous su pport and his i nsightf ul comments .

 See Nichola s Bala, “Double V ictims: C hild Sex ual Abuse a nd the Crimi nal Justic e Sys-

tem” ()  Queen’s LJ .

 See David M. Pacio cco, “e Evidenc e of Children : Testing the Ru les agains t What We

Know” ()  Q ueen’s LJ .

  ,   ,    78

the lea dership of Nicholas Bala . e projec t exam ined the issues posed by

the competence inqui ry and ultimately led to refor ms in the law.

A. HISTORICA L BACKGROUND

In , C anada ena cted its rst law concerning child witnesses. Prior to

these reforms , testimony could be given only if a n oath was ta ken, and chil-

dren could swe ar an oath only i f they answered quest ions demonstrating an

understandi ng of the “nature and consequences of an oath.” Children w ho

could not ex plain the mean ing of an oath were deemed less likely to tell the

truth as witnesses and thus not per mied to testi fy.  is prov iso us ually

meant that c hildren younger th an ten could not be w itnesses. Aer t he new

statutory provisions of , children were perm ied to give un sworn ev i-

dence if they “possessed sucient intelligence” a nd understood “the duty to

speak the truth.” Judges were requi red to ask all children about thei r under-

standing of oaths . If children d id not g ive satisfactor y answer s, they could

give unswor n te stimony provided they could correctly an swer questions

about “t he duty to speak the truth.” Nevertheless, a child ’s unsworn testi-

mony continued to be viewed w ith suspicion and required cor roboration.

Children were o en questioned about thei r religious beliefs and prac-

tices in order to establish if t hey understood the conseque nces of a n oath.

However, by the middle of the twentieth centur y, emphasis on the need for

religious a nswers regardi ng the meaning of an oath decli ned. Children did

not have to demonstrate an understanding of God or promise to God to tell

the truth or understa nd that there were divine sanctions for fai ling to tell the

truth. Appel late caselaw in the s established that children did not have to

demonstrate an understa nding of the spiritual consequences of an oath to be

permied to te stify providi ng that they understood t he “social signicance”

of the oath. However, despite legal precedents, children were sti ll commonly

questioned about their rel igious beliefs.

In general the c ourts were sus picious of child witnesse s. ere was a

perception that ch ildren were not trust worthy as wit nesses, reecting w ide-

 Canada Evid ence Act, SC  , c. , s. .

 See R. v. Bann erman (),  WW R  (Man CA); R. v. B udin (),  OR (d)  (CA).

 S ee Nicholas Bal a et al., “A Legal a nd Psychologi cal Critiqu e of the Present Ap proach to

the Ass essment of the Com petence of Chi ld Witnesses ” ()  Osgoode Hall LJ  ,

[Ba la et al ., “A Legal and Psyc hological Cr itique”].