Because of statutory amendments it is easier for child witnesses to testify even if they cannot distinguish between truth and falsehood. That lowered standard does not apply to adults.
In R. v. D.I., 2010 ONCA 133, released today, the Crown urged that the standards be unified -- the Court of Appeal did not agree saying the matter was for legislative amendment. The Court writes:
[36] Prior to the coming into force of s. 16.1 of the CEA in 2006, the competence of adults with developmental disabilities to testify was determined using the same criteria as those applied to children under 14. The criteria addressed the witness's ability to understand and respond to questions and the witness's capacity to understand the obligation to tell the truth: see Farley, at pp. 81-83; R. v. Rockey, [1996] 3 S.C.R. 829, at p. 844, per McLachlin J., concurring. The inquiry into a witness's capacity to understand the obligation to tell the truth has led courts to engage in inquiries into the witness's understanding of abstract concepts such as "truth", "lies" and a "promise". Those inquiries led the trial judge to determine that K.B. was not competent to testify (see paras. 27 and 28 above).
[37] Parliament enacted s. 16.1 of the CEA in 2006. The section applies only to persons under 14. A child under 14 is presumed to have the capacity to testify (s. 16.1(1)), shall not take an oath or affirm before testifying (s. 16.1(2)), and the child's evidence has the same effect as if it were taken under oath (s. 16.1(8)). Sections 16.1(3) and 16.1(7) are particularly germane:
(3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.
...
(7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.
[38] With the enactment of s. 16.1, Parliament has deemed that a child's capacity to testify should be decided exclusively on the child's ability to understand and respond to questions. The second criterion set down in the case law, the child's ability to understand the obligation to tell the truth, is now irrelevant to his or her competence to testify. Indeed, s. 16.1(7) specifically prohibits inquiries into a proposed child witness's "understanding of the nature of the promise to tell the truth" when determining whether their evidence should be received. Parliament has declared that inquiries into a proposed witness's capacity to answer questions about "truth", "lies" and "promise" are not appropriate to an assessment of their testimonial capacity, and that concerns arising from their ability to answer such questions should go to the weight of their evidence once received, and not whether it can or cannot be received in the first place: see R. v. J.Z.S. (2008), 238 C.C.C. (3d) 522 (B.C.C.A), aff'd 2010 SCC 1.
[39] The Crown contends that children and adults with developmental disabilities experience similar barriers in accessing the criminal justice system. These barriers can deny children and developmentally disabled adults the full protection of the law in cases where they are the victims of abuse and their testimony is essential to the prosecution. Counsel argues that concerns that children, a particularly vulnerable segment of society, were being kept from the witness stand and, thereby, were being denied the protection of the law, led to the enactment of s. 16.1. As described above, that section makes the witness box more accessible to children by eliminating inquiries as to the child's ability to articulate an understanding of abstract concepts such as "truth" and "promise".
[40] There is a powerful logic to the Crown's argument. Parliament has declared that whether or not a proposed child witness possesses the capacity to articulate an understanding of certain concepts is irrelevant to that child's competence to tell the court what happened. There is no reason to believe that the same is not true for a proposed witness like K.B., who is over 14 and has a developmental disability. If a child witness gave exactly the same answers to the questions posed to K.B. that K.B. gave, that child would be competent to testify, while K.B.'s evidence would be declared unworthy of consideration.[1] This distinction is difficult to understand.
[41] However, the court must apply the law as enacted by Parliament. Before s. 16.1 came into force, the same criteria were used to determine the testimonial competence of
children and adults with developmental disabilities. Parliament must be taken to have known the state of the law. In enacting s. 16.1, Parliament chose to create a new testimonial competence test and to limit it so as only to apply to children under 14.
[42] Parliament's decision to do so is explained by reference to the research underlying the enactment of the legislation. Section 16.1 was enacted in response to the research findings of the Child Witness Project, led by Professor Nicholas Bala at Queen's University. The project concluded that there is no relationship between a child's ability to answer questions about abstract concepts like "truth", "lie" and "promise" and whether the child will ultimately tell the truth when giving evidence: see J.Z.S., at para. 27; Nicholas Bala et al., "Bill C-2: A New Law for Canada's Child Witnesses" (2006) 32 C.R. (6th) 48, at p. 58. It does not appear that Parliament was made aware of any similar research involving adults with developmental disabilities.
[43] The legislative context in which s. 16.1 was enacted suggests that Parliament was alive to the potential application of remedial legislation of this kind to vulnerable groups other than children. Section 16.1 was enacted in Bill C-2, An Act to Amend the Criminal Code (Protection of Children and other Vulnerable Persons) and the Canada Evidence Act, 1st Sess., 38th Parl., 2005 (assented to 20 July 2005), S.C. 2005, c. 32. The legislation includes a number of amendments to Criminal Code and Canada Evidence Act provisions aimed at facilitating the giving of evidence by children and other vulnerable groups: Nicholas Bala et al., at p. 48. Bill C-2 included a number of amendments targeted at both children and persons with disabilities. Some amendments targeted both groups (see e.g. Criminal Code, ss. 486.1, 486.2, 715.1 and 715.2); some targeted only one of the two groups (see e.g. Criminal Code, s. 486.3 and CEA, s. 16.1). It must be said that Parliament was aware of the vulnerability of both children and adults with developmental disabilities and in some cases chose to protect both, while in others, chose to protect only children. For whatever reason, in the domain of testimonial competence, Parliament chose to distinguish between children and adults with developmental disabilities. It chose to create a new competence standard for children under 14 while retaining the existing standard in s. 16(3) for all others.
[44] Given the language of s. 16.1 and the legislative context in which it was enacted, we conclude that Parliament chose to draw a distinction for the purposes of determining testimonial competence between proposed witnesses under 14 years of age and those 14 and over who have developmental disabilities. Absent a constitutional challenge, it is not for this court to trump that distinction through the reinterpretation of its jurisprudence.
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