Wednesday, July 16, 2014

Child witnesses

R. v. O.M., 2014 ONCA 503:
[51]       As I have said, the trial judge was alert to the approach to the assessment of children's evidence mandated by the Supreme Court of Canada in R. v. W.(R.).  At p. 42 of his reasons, he noted the Supreme Court's direction in R. v. W.(R.), at p. 134, that when the evidence of an adult witness concerns events that occurred in childhood, "the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying."  He also observed, at p. 42, that: "[t]he credibility of any witness, including children, is to be considered in the context of the witness' capability, mental or otherwise, in the circumstances of the case."  This accords with McLachlin J.'s caution in R. v. W.(R.), at p. 144, quoted by the trial judge at p. 42:
Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.
See also R. v. B.(G.), [1990] 2 S.C.R. 30.  The trial judge expressly indicated that he approached the assessment of the complainants' credibility in accordance with these principles.   
[52]       It is true that the trial judge did not specifically mention the reliability of child witnesses when discussing the directions afforded by R. v. W.(R.).  However, based on his reasons, it is clear that he understood that contradictions in a child's testimony should not be accorded the same effect as similar contradictions in an adult's testimony.  Rather, the evidence of child witnesses must be approached with common sense.  The trial judge stated, at pp. 39-40:
The evidence of children is not to be treated as evidence that is inherently unreliable or to be treated with special caution.  It may be incorrect to apply to them the same standards one would expect of an adult in similar circumstances.
[53]       These statements derive from R. v. W.(R.).  In particular, at pp. 40-41, the trial judge quoted the following passages from R. v. W.(R.), at pp. 142-143:
The law affecting the evidence of children has undergone two major changes in recent years.  The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. … The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case.  But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults.  So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into error.
As Wilson J. emphasized in B.(G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.  Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.  What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

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