The Evidence of Children

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 65-110

65

The Evidence

ofChildren

4

I. Overview ................................................ 66

II. Testimonial Competence of Child Witnesses.................... 68

III. The Admissibility and Assessment of Children’s Evidence in Criminal

Proceedings.............................................. 75

IV. The Types of Children’s Evidence That May Be Admissible in Criminal

Proceedings.............................................. 87

V. Questioning the Child Witness............................... 103

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

66Prosecuting and Defending Oences Against Children

I. Overview

Although the Canadian Charter of Rights and Freedoms1 guarantees to children, as

individuals, the right to equal protection and benefit of the law, children have histor-

ically been the subject of both direct and systemic discrimination under Canadian

criminal law. The traditional rules of the common law reflected a “historical dis-

crediting of children”2 and were based on myths and stereotypes about the “inher-

ent unreliability” of their complaints and evidence.3 In this regard, the conventional

rules respecting testimonial competence, corroboration, and the intrinsically sus-

pect nature of children’s evidence all served to preclude children’s accounts of

abuse from meaningful investigation and prosecution. Moreover, the combined

effect of all these various rules of law meant that, historically, children were vic-

timized twice.4 Due to the innate power imbalance that exists between children

and adults, children are often the targets of violence and exploitation.5 However,

traditional stereotypical assumptions about children’s evidence effectively rendered

children unable to testify about the offences committed against them. As a result

of such discrimination, it was rare for young children to give evidence in Canadian

courtrooms before the 1980s.6

Over the past three decades, the status of children under the criminal law has

undergone a dramatic evolution. Significant parliamentary and judicial reforms have

been made to the criminal law to facilitate the admissibility of the evidence of children

1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

[Charter].

2 AH Young, “Child Sexual Abuse and the Law of Evidence: Some Current Canadian Issues”

(1992) 11 Can J Fam L 11 at 20-21.

3 For a history of the treatment of children within the criminal justice system, please refer

to Nicholas Bala’s extensive scholarly work on this topic. See, for instance, Nicholas Bala,

“Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System” (1990) 15

Queen’s LJ 3; Nicholas Bala, Angela Evans & Emily Bala, “Hearing the Voices of Children in

Canada’s Criminal Justice System: Recognizing Capacity and Facilitating Testimony” (2009)

17 Intl J Child Rts 1. See also R v W (R), [1992] 2 SCR 122, [1992] SCJ No 56 (QL) at paras

23-31; R v Seaboyer, [1991] 2 SCR 577, [1991] SCJ No 62 (QL) at para 170.

4 R v Levogiannis, [1993] 4 SCR 475, [1993] SCJ No 70 (QL) at para 20; Bala, “Double Victims,”

supra note 3.

5 R v L (DO), [1993] 4 SCR 419, [1993] SCJ No 72 (QL) at paras 27-31.

6 Bala, Evans & Bala, “Hearing the Voices of Children,” supra note 3; Nicholas Bala et al, “Chil-

dren’s Conceptual Knowledge of Lying and Its Relation to Their Actual Behaviours: Impli-

cations for Court Competence Examinations” (2002) 26 Law and Human Behaviour 395;

Nicholas Bala et al, “Judicial Assessment of the Credibility of Child Witnesses” (2005) 42 Alta

L Rev 995 at para 1; Bala, “Double Victims” supra note 3. See also R v W (R), supra note 3; R v

B (G), [1990] 2 SCR 30, [1990] SCJ No 58 (QL) [R v B (G) cited to SCJ]; R v L (DO), supra note

5; R v Levogiannis, supra note 4; R v CCF, [1997] 3 SCR 1183, [1997] SCJ No 89 (QL) [R v CCF

cited to SCR]; Rv Marquard, [1993] 4 SCR 223, [1993] SCJ No 119 (QL) [R v Marquard cited to

SCJ]; R v Persaud, [2007] OJ No 432 (QL) (Sup Ct J); R v Sharpe, 2001 SCC 2 at paras 169-70.

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

Chapter  The Evidence ofChildren 67

while also ensuring a fair trial for accused persons. In the present day, the following

basic principle now guides the assessment of all witnesses who testify in criminal

proceedings:

Every person giving testimony in court, of whatever age, is an individual whose credibil-

ity and evidence must be assessed by reference to criteria appropriate to [their] mental

development, understanding and ability to communicate.7

The modern rules of evidence have sought to abolish stereotypical thinking

in respect of child witnesses and instead require an individualized approach to the

assessment of the evidence of all witnesses, including child witnesses. The modern

rules of evidence recognize that both adult and child witnesses are capable of giv-

ing reliable and truthful evidence. The modern rules also recognize that both adult

and child witnesses are capable of giving evidence that is mistaken, inaccurate, or

false. Accordingly, assessments as to the reliability and credibility of all witnesses in

criminal proceedings, regardless of age, must be made having regard to the individual

witness and the particular facts of a case.

At the same time that all of these important reforms have occurred, Parliament

and the courts have also identified the need to sometimes modify the traditional rules

of evidence to better accommodate the perspectives and developmental stages of

children. Courts have mandated that a “common sense” approach be taken to the

assessment of children’s evidence to better facilitate their ability to participate as wit-

nesses in the courtroom and further the truth-seeking goal of criminal proceedings.

The Supreme Court of Canada’s decisions in R v B (G) and R v W (R) in the early

1990s were among the first cases in a long line of jurisprudence that has subsequently

affirmed that the testimony of child witnesses ought not to be assessed with the same

“exacting standard” as that of adults.8

This chapter discusses the testimonial competence of child witnesses, the admis-

sibility and assessment of children’s evidence, and the types of children’s evidence

that may be admitted in criminal proceedings. The chapter concludes with some

comments for Crown and defence counsel about the process of examining and cross-

examining child witnesses.

7 R v W (R), supra note 3 at para 26 (emphasis added).

8 R v W (R), supra note 3; R v B (G), supra note 6.

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