Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2):
Case Law Review and Perceptions of the Judiciary
2. Review of Bill C-2 Case Law and Legal Literature (cont'd)
- 2.2 Accommodating Child Witnesses: Introduction (cont'd)
2. Review of Bill C-2 Case Law and Legal Literature (cont'd)
2.2 Accommodating Child Witnesses: Introduction (cont'd)
If the Crown or
child requests it, s. 486.2(1) now requires that a child "shall" be permitted
to testify via closed circuit television or from behind a screen, unless the
court is of the
"opinion that the order would interfere with the proper
administration of justice." The presumption of permission for use of a screen or closed-circuit television
under s. 486.2(1) is also applicable to any case where an adult witness is
"mental or physical disability" that would affect the ability to
Under s. 486.2(2)
adults who are not disabled may be permitted to testify from behind a screen or
via closed-circuit television but only if the court is
"of the opinion that the
order is necessary to obtain a full and candid account from the witness of the
acts complained of." As discussed in R. v. Pal, per Joyce J., for s. 486.2(2)
to be used by an adult, it is not sufficient for the witness to satisfy the
court that he or she is "fearful," it must be shown that the fear would render
the witness unable to
"give a full and candid account."
It was held in R. v. Levogiannis that use of a screen under former subsection 486.2(1) did not violate the rights of an accused under s. 7 or s. 11(d) of the Charter.
A constitutional challenge to the current subsection 486.2(1) was rejected in R. v. S.(J.) by Metzger J. In that case a screen was set up so that the young complainants could testify without seeing the accused. Counsel for the accused submitted that the screen changed the entire dynamic of the court process which negatively affected his rights to be present at trial in the full sense of the word. The British Columbia Supreme Court followed R. v. Levogiannis and concluded that the absence of face to face testimony did not violate the accused's right to a fair trial.
The British Columbia Court of Appeal
inupheld the trial decision R. v. S.(J.), and ruled that s.486.2 is
constitutionally valid. The Court of Appeal held that R. v. Levogiannis could
not be distinguished on the basis of the presumptive current wording of s.
486.2, noting that the unique position of child witnesses in the criminal
justice context was also supported by the Supreme Court in R. v. L.(D.O.). The Court of Appeal noted
that, as was discussed at length in R. v. L.(D.O.), the
evidence and procedure have evolved through the years in an effort to accommodate
the truth-seeking functions of the courts, while at the same time ensuring the
fairness of trial." [at para 35] The British Columbia Court of Appeal concluded
(at para. 43):
s. 486.2 is merely the next step in the evolution of the rules of evidence. These rules seek to facilitate the admissibility of relevant and probative evidence from children and vulnerable witnesses while maintaining the traditional safeguards for challenging the reliability of their evidence. Rules of evidence must be construed in light of a criminal justice system that encourages the goal of"attainment of truth". Over the years, the use of testimonial aids has been subject to ongoing procedural and evidentiary changes, which may continue to evolve. In this case, the changes are not in conflict with constitutionally guaranteed principles of fundamental justice. The presumptive nature of s. 486.2 does not dispense with any of the traditional safeguards for ensuring that an accused receives a fair trial.
In R. v. C.(A.W.), the child complainant testified behind a screen that allowed her to avoid seeing the accused, but which also prevented the accused from hearing or seeing the complainant while she testified. Only after a substantial portion of her testimony was finished was the hearing problem rectified and only for the balance of the proceedings; the visual problem was never rectified. In convicting the accused, the trial judge relied heavily on the child complainant's evidence, and upon her demeanor in giving it. A new trial was ordered, with the Alberta Court of Appeal holding that an accused has a right to more than mere physical presence in the courtroom during the trial; the right extends to seeing and hearing the evidence and witnesses at trial. Given the improvements in child-friendly courtrooms in many jurisdictions, these types of problems should become less common over time. However, R. v. C.(A.W.) is a reminder that judges must be vigilant to ensure effective participation by the accused in his own trial, and should attempt to remedy any problems during the course of the trial.
In R. v. Henry, the
accused was charged with two counts of sexual assault and sexual interference
against his step-daughter. The Crown applied for an order under the former s. 486.2(1)
of the Criminal Code, to permit the 15-year-old step-daughter to testify
from behind a screen. In dismissing the application, Quinn J. held that the
Crown had not proven on a balance of probabilities that the screen was
"necessary to obtain a full and candid account of the acts complained of from
the complaint." The Crown had not demonstrated the child witness's "inability" to testify, but only her "unwillingness." The trial judge also refused to infer
that she was traumatized by the alleged assaults, since no specific evidence on
this subject was adduced. The decision in Henry, however, was made under the
previous s. 486(2.1), and under the new provision, s. 486.2(1), the
outcome of a similar case might well be different as it establishes a
presumption that a child witness may use a screen, if it is requested, making
clear that there is no evidentiary burden on the Crown to justify use of a
screen. A number of cases under the new provision have emphasized that the test
is now quite different, and the onus is now on the accused to demonstrate that
use of a screen would interfere with the proper administration of justice"
(see, e.g., R. v. McDonald ).
In R. v. Elmer, Godfrey Prov. Ct. J. permitted two adolescent
complainants to testify from behind a screen, observing that the previous
provision set out a
"different and higher standard," with the current s. 486.2(1)
being "mandatory" due to the use of the word "shall." In R. v. McAllister, Taylor
J. made an order permitting a child to testify from behind a screen with a
support person close by, observing that change in wording in the provision that
came into force in 2006 is "significant," since the onus is now on the accused
to establish that use of a screen would
"interfere with the proper
administration of justice," which the judge characterized as a
The fact that the Crown intends to subsequently apply under s. 715.1 to have the complainant adopt her video-taped statements is not relevant to the application for a screen or use of closed-circuit television. It is clear that a combination of testimonial aids can be used along with a video-recorded statement. Thus in R. v. Flores, per McEwan, J. the child witness testified from behind a screen with comfort items and a support person present in the witness box, and during her testimony, she adopted the contents of a video-recorded statement.
In R. v. T.(M.), the Crown was seeking an order
pursuant to section 486.2(2) that the complainant be allowed to testify behind
a screen. The accused was the grandfather of the complainant and was charged
with sexual assault. An issue arose, however, because at the time of the trial
the complainant was 18 years of age, with her birthday having been in the month
previous. In making the order that a screen be used, the judge considered the
age of the complainant, the nature of the offence and the relationship
involved, the fact that the order was necessary to obtain a
"full and candid
account from the witness of the acts complained of" and that the complainant
had testified behind a screen at the preliminary hearing and been told that the
same would apply at the trial.
184.108.40.206 Closed-circuit Television
Like the former s.
486.2(1), the new provision does not expressly refer to closed-circuit
television, but it clearly is intended to allow for a child or other vulnerable
witness to testify via closed-circuit television. As recognized in R. v. J.W., by Tweedale, J., who quoted extensively from the
Parliamentary debates leading to the enactment of Bill C-2, the use of
closed-circuit television is intended
make it easier for child and youth witnesses to testify." A television link permits the child to be examined and cross-examined
from outside the court, in a smaller, less intimidating setting.
In R. v. E.D., Thomas
J. concluded that an order for use of closed-circuit television should only be
made if evidence satisfied the court that use of a screen would not be
sufficient to protect the child. He observed:
"allowing a witness to testify
outside the courtroom is an extraordinary event in the administration of
justice but at times necessary to secure the proper administration of justice,
the evidence considered must preclude a less intrusive option." Bala et al. argue that the presumption in
favour of applications found in the new s. 486.2(1) means that if the Crown
makes an application for use of closed-circuit television, it is generally not
necessary to establish that use of a screen would provide the child with
In R. v. G.A.P., Simonsen
J. rejected an application made by the Crown for a child witness to testify
outside the courtroom by closed-circuit television, and instead ordered that a
screen be used. The primary reason for requiring use of the screen was that
counsel for the defence planned on extensive cross-examination of the child,
referring to certain documents that counsel was not prepared to present before
questioning, and the court could not observe the documents on closed
circuit-television. However, other cases have held that the Crown (or a
witness) will ordinarily have the "right" to determine what type of device
(closed-circuit television or a screen) to use: R v. J.W., per Tweedale Prov. Ct. J. The "right" of a witness to
determine what device will be used is subject to its availability and to the
judge being satisfied that in a particular case, given the nature of the
proposed evidence, the
"administration of justice" requires some other mode, as
occurred in G.A.P.
In R. v. T. (S.B.), the British Columbia Supreme Court
considered a judicial review application brought by the Crown after the trial judge
granted an application under section 486.2(1) , but ruled that the witnesses should testify from behind a
screen rather than via closed-circuit television despite the request from the
Crown to allow the two 15 year old female complainants to testify via closed
circuit television. In the Supreme Court, Smart J. commented that section
486.2(1) creates a presumption in favour of the testimonial accommodation
requested by the Crown; a judge or justice hearing an application under section
486.2(1) does not have an independent discretion to determine which testimonial
accommodation he or she prefers or believes is better in the circumstances. It
is only when the judge or justice is determining whether the requested
testimonial accommodation would interfere with the proper administration of
justice that he or she may consider the nature of the testimonial nature
accommodation. However, Smart J. did not make an order as, by the time that the
application was heard, another judge was assigned to the trial. In obiter
dicta, Smart J. suggested that the presumption in section 486.2(1) applied
only if the Crown made an application; if a witness under the age of 18 years was
making an application without the support of the Crown, then section 486.2(2)
would apply and there would be no presumption of use but rather the witness
would need to establish that the particular form of accommodation was needed to
"obtain a full and candid account". In making these obiter comments,
Smart J. acknowledged that
"most of the authorities" cited to the court took
the position that the presumption would apply whether the application was made
by the Crown, a witness under age 18 or a witness who has a disability.
In some cases children who are testifying outside of the courtroom may seem more "remote" or "distracted." For example, in R. v. P.(M.R.), during the playing of a video-recording her interview by police, the 11 year old complainant was outside the courtroom in a child-friendly room observing the recording on a television monitor. The child-friendly room was linked via closed-circuit television to the courtroom. At the conclusion of the DVD recording the complainant was questioned by the Crown and, adopted the contents of the recording. Bascom Prov. J. commented:
During the period of time when the DVD was being played in court, Ms. S.S. was observed on the television monitor. The Court noted during this period of time she did not watch the monitor for long periods of time. Ms. S.S. looked out the window or looked down on a desk. Although this demeanour would have been of concern if Ms. S.S. was an adult, the Court cannot say that her actions while watching the DVD caused the Court to question her credibility or reliability based on her demeanour.
The accused in R. v. P.(M.R.) was acquitted, though not because the Court rejected reliability of the videotaped interview, but because of other inconsistencies in the Crown's case.
In R. v. Black, Parrett, J. initially allowed an application to allow a 14-year-old complainant in a sexual assault case to testify via closed-closed circuit television; however, during her testimony the witness became uncooperative and consequently an order was made for her to complete her testimony from within the courtroom. The judge noted that while testifying by closed-circuit television, the girl displayed "disdain" for the judicial process, which was reflected in demeaning statements that she made towards counsel and in her refusal to answer questions about inconsistencies in her testimony. Parrett J commented:
It is also necessary to state unequivocally that the nature of her evidence and the difficulties which occurred during the course of it served to highlight the dangers in what I perceive to be a growing trend of the Crown in this region to rely on the provisions of s. 486.1 [sic] of the Code to allow witnesses to testify remotely by closed circuit facilities. Such a process, while highly useful in appropriate cases, has, in my view, inherent and unacceptable dangers which are starkly emphasized in the present case.
Parrett J. concluded
that the use of a closed-circuit television was interfering with the
administration of justice and terminated its use for the girl. In contrast, the
latter portion of her testimony, completed within the courtroom, was done with
"little apparent difficulty and
with a good deal more recognition of the proper trial process." The judge concluded:
my view, the danger highlighted by this process in the present case serves to
emphasize the importance of both the Crown and the court considering carefully
the final ten words of s. 486.1(1) before giving such orders. The prospect of
these events occurring before a jury is not one that would be easily dealt
220.127.116.11 Constitutionality of s. 486.2
constitutionality of s. 486.2, as enacted in 2005, was upheld in R. v. C.N.H., per
Dhillon Prov. Ct.J.; R. v. Dhixon, per Gould Prov. Ct.J.; and R. v. Schindler, per
Klinger Prov. Ct. J. The courts have held that this provision does not violate
the Charter s. 7, with its guarantee that deprivations of liberty are to be
accordance with the principles of fundamental justice" or s. 11(d), with
its guarantee of the right of an accused to a
"fair trial." In R v. C.N.H., Dhillon Prov J. reviewed some case law about the constitutionality
of the pre-2006 provision and considered a submission made to the Parliamentary
Committee about the need for the enactment of this provision, and concluded (at
Parliament is entitled to undertake reform of the law of evidence and, in relation to s. 486.2, has consulted widely on how to improve the experience of child and other vulnerable witnesses in the criminal justice system. The Supreme Court of Canada has said that the rules of evidence have not been cast as constitutionally protected principles of fundamental justice. Additionally, as is well noted in Levogiannis, supra, an accused has no constitutional right to face-to-face confrontation of a witness. Although s. 486.2 provides a procedural directive as to the manner in which child testimony may be given, it does not preclude the accused from using the full arsenal of procedural and substantive rights at his disposal in the adversarial system.
In the case at bar, the use of CCTV affords the accused a right to a full cross-examination of the witness. This right is not compromised by having the witness out of the physical presence of the accused because the CCTV technology permits the"virtual presence"of the witness in the courtroom. As Crown has submitted,"a witness testifying via CCTV is still giving viva voce, real time, cross-examinable evidence the credibility of which can be contemporaneously assessed."
As has been noted by courts which have received CCTV or video evidence, the quality of evidence can be equal to or better than viva voce in person testimony particularly if technological enhancement is available. If the technological quality proves to be substandard, the court retains an overriding discretion to require the personal attendance of the witness in court… .
In my view, s. 486.2 does not place any burden on the accused which jeopardizes fair trial rights. It calls on the Crown to satisfy the prerequisites of age of the witness, and the remaining conditions under s. 486.2(7). The Court must be satisfied that proper arrangements have been made for the contemporaneous receipt by the judge and the accused of out-of-court testimony, and for the accused to communicate with counsel during the testimony.
The legislation creates a presumptive rule that witnesses under the age of 18, if they apply, will be granted the right to testify with the use of a testimonial aid unless the court is"of the opinion"that such an order will interfere with the proper administration of justice. As discussed above, there is a valid legislative basis for requiring the presumptive or mandatory order, given the lack of success in affording aids to child witnesses under the predecessor legislation.
In order to preclude the imposition of a testimonial aid, which is presumptive under s. 486.2, the judge must form the opinion that the order would interfere with the proper administration of justice. I am of the view that a judge who forms such an opinion becomes "satisfied" as to that particular state of affairs… .
Section 486.2 preserves the trial judge's discretion to refuse such an order if the judge forms the opinion, whether from her or his own enquiries or from matters raised by the Crown or the accused, that the proper administration of justice may be adversely affected. This, in my view, does not place any undue burden on the accused and does not affect the accused's rights to a fair trial.
The decision of Dhillon Prov. Ct. J. in R. v. C.N.H. offers the most extensive discussion of the constitutionality of this provision, and her decision has been cited in all of the subsequent cases that have upheld the validity of s. 486.2.
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