Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2):
Case Law Review and Perceptions of the Judiciary

Executive Summary

Background

Bill C-2, An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) received royal assent on July 21, 2005 (S.C. 2005, c.32). The Bill contained a package of amendments to the Criminal Code and the Canada Evidence Act designed to facilitate testimony by child victims and vulnerable adults, which came into force on January 2, 2006. It changed the approach for determining if child witnesses are competent to testify, allowing them to testify if they are able to understand and respond to questions. In cases involving children and vulnerable adults, the amendments facilitate the use of testimonial aids, including screens, closed-circuit television, support persons, as well as the use of video-recorded statements. Under the new test, testimonial aids are available for all child victims and vulnerable adult witnesses, on application, unless it would interfere with the proper administration of justice.

The Bill also gave judges the authority to appoint counsel for self-represented accused persons for the purposes of preventing cross-examination of children and vulnerable adult witnesses, unless doing so would interfere with the proper administration of justice.

Purpose of the Project

The Canadian Research Institute for Law and the Family (CRILF) was contracted by Justice Canada to conduct this project on testimonial support provisions for children and vulnerable adults in the criminal courts. The purpose of this research project was to explore judicial experiences with and opinions about the amendments to the Criminal Code and Canada Evidence Act introduced by Bill C-2 for children and vulnerable adult witnesses.

The project addressed the following research questions:

  1. Since Bill C-2 came into effect, what does case law reveal about the new law and how has Canadian legal literature dealt with these legal reforms?
  2. Are judges familiar with the amendments contained in Bill C-2? Have they had the opportunity to use them? Do they think they're useful?
  3. How often are applications being made for testimonial supports? Are the applications generally successful? If not, why not?
  4. Have judges had any difficulties with the implementation of any of the testimonial support provisions contained in Bill C-2?
  5. How often are applications being made for appointment of counsel to self-represented accused for purposes of cross-examination? Are the applications generally successful? If not, why not? 
  6. Have the judges held competency inquiries?  How often is the child witnesses' competence accepted without inquiry?  How often is the child found incompetent to testify?
  7. Do the judges have any concerns regarding any of the provisions contained in Bill C-2?

Methodology

In order to address the research questions listed above, the project included two major components: (1) a review of relevant case law and Canadian legal literature; and (2) a survey of judges in four Canadian jurisdictions. The methodology used for these two components is described below.

Case Law and Canadian Literature Review

The new legislation governing the testimony of children and vulnerable adults as witnesses has been interpreted and applied in a significant number of recent reported Canadian cases, and discussed in a few articles. This report includes an analysis and summary of the reported Canadian case law (to June 30, 2009) and legal literature dealing with the new provisions, and related issues concerning vulnerable witnesses.

Survey of Judges

A survey of provincial and superior court judges in four jurisdictions in Canada was conducted to elicit their experiences with and opinions on the Bill C-2 amendments.  Four jurisdictions agreed to participate in the project: Nova Scotia (both levels of court), Alberta (both levels of court), British Columbia (Provincial Court), and the Yukon (Territorial Court). Data collection occurred from November 26, 2007 to January 15, 2008. The judges' survey consists of 36 questions and contains the following sections: Background Information; Your Perceptions of Bill C-2; Your Experiences with the Provisions Contained in Bill C-2; Credibility Assessment and Questioning of Children; and General Comments.

Summary and Conclusions

A review of the reported case law applying Bill C-2 and the survey of judges reveals that these legislative reforms have facilitated the giving of evidence by children in criminal proceedings, and that they are generally well received by the judiciary. In the survey, almost all of the judges indicated that they consider Bill C-2 to be useful, and a clear majority considered that the provisions continue to treat the accused fairly. In the reported case law, all of the Charter-based challenges to the new provisions have failed, and the courts are generally interpreting the new provisions in a way that has helped children to testify.  One of the Charter cases has been appealed to the Supreme Court of Canada, and the question of the constitutional validity of the new provisions is likely to be resolved in 2010.

The new competency test in Canada Evidence Act s.16.1 has clearly simplified and shortened the process of qualification for child witnesses.  In a significant portion of cases, the child is accepted as competent without inquiry, often based on interview material disclosed to the defence before the hearing. In the survey, judges reported that in about one-fifth of cases with the youngest age group (3-5 years), there was no competency inquiry, rising to almost three-quarters with the older age group (10-13 years). In the reported case law, there were no instances of judges writing decisions to explain why a child is incompetent to testify. In the survey, while some children in all age groups were found incompetent, even in the youngest age group (3-5 years) almost one-half of the judges reported that they had never found a child incompetent under the new provision. Judges reported that the average length of time spent on a competency inquiry is now 12 minutes. The case law reveals that judges may allow questions about the child's understanding of the concepts of truth and lie during cross-examination, though published commentary raises the appropriateness of such questions.

The courts have accepted that in enacting ss. 486.1, 486.2, and 486.3, Parliament intended to increase the use of accommodations for child witnesses, by increasing the use of support persons, closed-circuit television and screens, and counsel appointed to cross-examine child witnesses where accused persons are self-represented. There are very few reported cases in which use of an accommodation was requested and the accused satisfied the court that use of the accommodation would "interfere with the administration of justice." The courts, however, remain alive to the need to protect the rights of the accused; in the reported cases, use of an accommodation is denied if the appropriate equipment is not available, or the conduct of the witness or nature of the evidence would mean that use of the accommodation would render the trial unfair.

The survey suggests that applications under s. 486.1 to allow a support person to sit near a child or vulnerable adult witness are made in a minority of cases involving children and rarely in cases with adults. When an application is made under s. 486.1 for a child witness, it is almost always successful, and usually successful with a vulnerable adult. The survey results suggest that the most common support persons for child witnesses are family members and victim services workers. In the survey, some judges raised some concerns about the implementation of s. 486.1, in particular that in some cases the support person may influence the witness.

The case law review reveals that judges recognize that Bill C-2 establishes a "high standard" for the accused to satisfy if the court is to reject an application for the use of closed-circuit television or a screen with a child witness under s. 486.2. The survey reveals that applications under s. 486.2 for screens or closed-circuit televisions are most likely to be made at the pre-trial hearing conference. The survey suggests that an application under s. 486.2 is made in a minority of cases involving child witnesses, and is more likely to be for use of a screen than closed-circuit television, but when an application is made, it is almost always successful. The case law review and survey suggest that there continue to be logistical and technical concerns about the equipment and, in the survey, one-half of the judges reported that they had experienced problems in arranging for appropriate equipment.

The survey reports that appointment of counsel of s. 486.3 to question a vulnerable witness rather than allowing a self-represented accused to do this is more likely to occur in provincial court, perhaps because accused persons in superior court are more likely to have counsel. The survey also revealed that applications under s. 486.3 are made most often at the pre-trial hearing conference, and the survey and case law review indicate that such applications are almost always successful. The survey, case law review, and published commentary reveal concerns about the implementation of s. 486.3, in particular about how counsel is to be paid. The survey also revealed some judicial concern about delay that may result when an order is made under s. 486.3, especially if it is not clear how counsel is to be paid, and about how counsel can cross-examine only one witness without being involved in the entire trial. Despite the variation in the reported case law about how the courts are dealing with issues of payment for counsel and how counsel is being selected for s. 486.3 orders, the survey and case law review indicate that these issues are being adequately addressed; there are no reports of cases in which proceedings have had to be stayed because counsel could not be appointed.

The case law review and survey showed that applications under s.715.1 to have a video-recorded interview with the child admitted in evidence are almost never denied. The survey indicates that applications for the video-recorded evidence provision are made most often during the pre-trial hearing conference. The case law review suggests that judges recognize that the video-recorded interview may be given considerable weight, since it is made closer to the events in question when a child is likely to be able to give a fuller and more accurate description of the events at issue. The survey suggests that the Crown only seeks to have a video-recorded interview admitted in less than half of cases, and that s.715.2 is in practice not being used with vulnerable adult witnesses.

When asked about the credibility of witnesses in general in the survey, judges reported that the younger the witness, the more likely they are to make an unintentional false statement, for example, due to their memory of events being imperfect. Conversely, in the survey, judges reported that they perceived adults and older children to be more likely to be dishonest and make intentionally false statements. Judges in the survey also reported concerns that children who are testifying are frequently asked overly complex or developmentally inappropriate questions, especially by defence counsel. The case law review revealed that even in cases where children have been afforded accommodation, there continue to be cases where the courts acquit persons charged with offences against children, even if the judge believed the child, if the court was satisfied that the Crown did not prove guilt beyond a reasonable doubt.

The vulnerable adult witness provisions have been the subject of very little reported case law, and the survey indicates that there have been relatively few applications for the use of testimonial aids for adults. When applications are made for the use of testimonial aids for adults, they are generally successful, but they are less likely to be granted than applications for child witnesses.

In line with the findings from the case law review, overall, the judges who completed the survey were very positive about the amendments contained in Bill C-2. The vast majority of judges were familiar with the amendments and a substantial proportion had used them. Almost all of the judges reported that the amendments are useful, and over three-quarters did not think they might render the trial unfair to the accused. Despite some concerns about implementation of these provisions as reflected in reported case law and survey comments, the amended provisions for child and vulnerable adult witnesses contained in Bill C-2 appear to be working well. Judges in both levels of court are familiar with the amendments and are using them.

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