2008 BCCA 401 R. v. J.Z.S.

RESTRICTION ON PUBLICATION: AN ORDER HAS BEEN MADE

IN THIS CASE PURSUANT TO SECTION 486(3) [NOW

SECTION 486.4(1)] OF THE CRIMINAL CODE THAT PROHIBITS

ANY INFORMATION THAT COULD IDENTIFY THE

COMPLAINANT[S] OR WITNESS[ES] BEING PUBLISHED,

BROADCAST OR TRANSMITTED

Before:	The Honourable Madam Justice Levine
	The Honourable Mr. Justice Chiasson
	The Honourable Madam Justice D. Smith
C. Brennan		Counsel for the Appellant
M. Ainslie		Counsel for the Respondent
Place and Date of Hearing:		Vancouver, British Columbia
September 4, 2008
Place and Date of Judgment:		Vancouver, British Columbia
October 10, 2008

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Chiasson

Reasons for Judgment of the Honourable Madam Justice D. Smith:

Introduction

[1] J.Z.S. appeals from an order dismissing his summary conviction appeal. He was convicted of sexually assaulting his son and daughter. At the time of the offences, the children were ages seven and ten respectively; at the time of trial they were eight and eleven. At trial, both children testified behind a screen on a promise to tell the truth.

[2] This appeal concerns the constitutional validity of s. 486.2 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) and s. 16.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA”), the statutory provisions governing the manner in which the children testified. The appellant contends that s. 486.2 of the Code and s. 16.1 of the CEA infringe his ss. 7 and 11(d) Charter rights. The central issue in this appeal is whether these provisions rendered the appellant’s trial fundamentally unfair.

[3] In my view, neither provision disturbs the traditional safeguards of trial fairness. Consequently, I find both provisions to be constitutionally valid.

The proceedings

[4] The context in which the constitutional challenges in this case arose may be briefly summarized.

[5] On July 12, 2006, the appellant was convicted of the sexual assault of his son and daughter following a summary trial before Quantz P.C.J. The trial judge dismissed the appellant’s constitutional challenges to s. 486.2 of the Code and s. 16.1 of the CEA and gave extensive reasons for his findings of guilt on both counts. He sentenced the appellant to two consecutive conditional sentences of six months and 18 months respectively.

[6] Prior to the trial, the Crown applied for testimonial accommodation of both complainants under two provisions. Section 486.1 would provide a “support person” to assist the child in giving evidence. Section 486.2 would permit the child to testify behind a screen or on CCTV. In turn, the appellant applied for a constitutional remedy striking down both Code sections, as well as s. 16.1 of the CEA.

[7] At the pre-trial hearing, the trial judge engaged in an inquiry as to the testimonial capacity of the complainants in order to determine if they could understand and respond to questions. There had been no application by the appellant for such an inquiry. During the pre-trial hearing, the Crown abandoned its application under s. 486.1 for a support person. At the conclusion of the hearing, the trial judge dismissed the appellant’s constitutional challenges. He granted the Crown’s application under s. 486.2, permitting the complainants to testify behind a screen.

[8] During the trial, the appellant’s daughter experienced emotional difficulties in answering questions on cross-examination. The Crown renewed its request for a support person, which was not opposed by the appellant. The appellant did not renew his constitutional challenge of s. 486.1. After the child completed her testimony, the trial judge invited the appellant to address the constitutional validity of s. 486.1, but the appellant declined to do so. Instead, he applied for a mistrial; the application was dismissed. The trial judge’s ruling on the appellant’s constitutional challenge is indexed at 2006 BCPC 639. His reasons for judgment are unreported (12 July 2006), Victoria 130505-1 (B.C.P.C.).

[9] The appellant appealed his convictions. On June 21, 2007, Metzger J. dismissed his summary conviction appeal. He gave extensive reasons for rejecting the appellant’s constitutional challenges and for upholding the trial judge’s verdicts. His reasons for judgment are indexed at 2007 BCSC 900, 222 C.C.C. (3d) 330.

[10] At para. 19, Metzger J. concluded:

The presumptive use of a screen does not impair cross-examination, nor impact the presumption of innocence, nor the Crown’s burden to prove each element of the offence beyond a reasonable doubt (see Levogiannis, supra; Dixon, supra, at para. 15; C.N.H., supra at paras. 33, 34, 42). If the testimonial aid adversely affects trial fairness, the trial judge is empowered by the legislation to deny its use. The accused has failed to demonstrate how his ss. 7 and 11(d) rights are infringed by 486.2 of the Criminal Code.

[11] Based on the analysis in R. v. Levogiannis, [1993] 4 S.C.R. 475, Metzger J. reasoned that, while the use of a testimonial aid engages an accused’s s. 7 liberty and security interests, the inability of an accused to confront a witness does not offend a principle of fundamental justice under our criminal justice system. He held that the presumptive use of a testimonial aid, and the corresponding inability of an accused to confront the complainant in such circumstances, does not impair an accused’s right to a fair trial. Further, s. 11(d) of the Charter is not infringed because the use of testimonial aids do not disturb the traditional safeguards of trial fairness, including the presumption of innocence, the burden on the Crown to prove the elements of an offence beyond a reasonable doubt, the accused’s right to be present and to cross-examine the complainant, and the accused’s right to call evidence. Moreover, he noted, s. 486.2 expressly retains the trial judge’s residual discretion to deny the use of a testimonial aid if he or she determines that it would interfere with the proper administration of justice.

[12] Similarly, in regard to s. 16.1 of the CEA, Metzger J. concluded at para. 27:

An accused has “no vested right” in the evidentiary or procedural rules regarding testimony (see R. v. Bickford (1989), 51 C.C.C. (3d) 181 at 190 (Ont. C.A.); Persaud, supra at para. 43). Further, an accused is entitled to a fair trial not the most favourable trial imaginable (see R. v. Lyons, [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1; R. v. W.(R.), supra). I concur with R. v. M.S., Persaud, and the trial judge in this case that the amendments to the CEA do not infringe the appellant’s ss. 7 and 11(d) Charter rights.

[13] Metzger J. rejected the appellant’s contention that s. 16.1 shifts the presumption in favour of a child’s capacity to testify. Adopting the comments of Antifaev P.C.J. in R. v. M.S. (31 August 2006), Port Coquitlam 7740 (B.C. Prov. Ct.) at para. 22, and Epstein J. (now J.A.) in R. v. Persaud (2007), 151 C.R.R. (2d) 245 (Ont. Sup. Ct.), he noted that the former version of s. 16 prevented many children from testifying who might otherwise have given accurate and truthful evidence simply because they could not explain the concepts of an oath or promise to tell the truth to the court’s satisfaction. He followed R. v. W.(R.), [1992] 2 S.C.R. 122, and R. v. Find, 2001 SCC 32, 1 S.C.R. 863 at paras. 102-103, in which the Supreme Court of Canada rejected the view that children’s evidence was inherently unreliable. He concluded that, given that the safeguards of a fair trial remain undisturbed, the weight or reliability of a child’s evidence is best left with the trier of fact.

[14] The appellant sought leave to appeal the constitutional validity of s. 486.1 of the Code, s. 486.2 of the Code, and s. 16.1 of the CEA. On December 10, 2007, Huddart J.A. denied leave to appeal the constitutional validity of s. 486.1 of the Code, finding that the issue did not arise on the facts. However, she granted leave to appeal, with the consent of the Crown, on the following questions of law:

1. Does s. 486.2 of the Criminal Code violate s. 7 and/or s. 11(d) of the Charter?

2. If the answer to question 1 is in the affirmative, is the infringement justified by s. 1 of the Charter?

3. Does s. 16.1 of the CEA violate s. 7 and/or s. 11(d) of the Charter?

4. If the answer to question 3 is in the affirmative, is the infringement justified by s. 1 of the Charter?

The legislation

[15] Section 486.2 of the Code provides that, upon application, a child witness (under age 18), or a vulnerable witness (mentally or physically disabled), shall presumptively testify with the assistance of a testimonial aid. Section 16.1 of the CEA provides for the presumptive testimonial competence of a child witness (under age 14). Both provisions dispense with the previous legislative requirements for a pre-testimonial inquiry to determine whether a testimonial aid is necessary, and whether the witness is competent to testify.

[16] The impugned provisions were preceded by s. 486(2.1) of the Code and s. 16 of the CEA respectively. Section 486(2.1) provided for a pre-testimonial inquiry as to the need for a testimonial aid. It was found to be constitutionally valid in Levogiannis. Section 16 provided for a pre-testimonial inquiry into the competence of a proposed child witness. It required the trial judge to be satisfied that the child had the capacity to testify before he or she was permitted to give evidence. The constitutional validity of s. 16 was never challenged.

[17] I have reproduced each of these provisions below in order to examine the differences between the repealed provisions and the current provisions.

[18] Section 486.2 of the Code provides:

Testimony outside court room - witnesses under 18 or who have a disability

486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

…

Application

(2.1) An application referred to in subsection (1) … may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.

…

Conditions of exclusion

(7) A witness shall not testify outside the court room under subsection (1), … unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.

No adverse inference

(8) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

[19] The section allows for the presumptive use of a screen or closed circuit television (“CCTV”) as testimonial aids for witnesses under the age of 18. It directs the court to make an order for the use of testimonial aids upon an application by the Crown or at the request of the witness. The provision eliminates the requirement that an applicant establish an evidentiary basis for need; it mandates the court to grant such an application unless to do so would interfere with the proper administration of justice.

[20] The repealed version s. 486(2.1) provided:

(2.1) Despite section 650, if an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) of (3), or section 163.1, 170, 171, 172, 17,3, 210, 211, 212, 213, 266, 267, 268, 271, 272, 273, 279.01, 272.02 or 279.03 and the complainant or any witness, at the time of the trial or preliminary inquiry, is under the age of eighteen years or is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, the presiding judge or justice, as the case may be, may order that the complainant or witness testify outside the court room or behind a screen or other device that would allow the complainant or witness not to see the accused, if the judge or justice is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant or witness.

[21] This version required a pre-testimonial inquiry into whether there was a need for a child or vulnerable witness to testify with the assistance of a testimonial aid. The testimonial aid had to have been necessary in order for the witness to provide a full and candid account of the alleged offence.

[22] Section 16.1 of the CEA provides:

Person under 14 years of age

16 (1) A person under fourteen years of age is presumed to have the capacity to testify.

No oath or solemn affirmation

(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.

Evidence shall be received

(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.

Burden as to capacity of witness

(4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.

Court inquiry

(5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.

Promise to tell truth

(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.

Understanding of promise

(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.

Effect

(8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.

[23] Section 16.1 presumes that a child under age 14 has the capacity to testify. A party who seeks to challenge a child’s capacity must first satisfy the court that such an issue exists. If the court is satisfied there should be a pre-testimonial inquiry into the proposed witness’s capacity, the challenging party may only question the proposed witness’s ability to understand and respond to questions. Section 16.1 directs that a child witness not take an oath or solemn affirmation, requiring that he or she testify on a promise to tell the truth. A promise to tell the truth is deemed to have the same effect as testimony given under oath. The provision prohibits pre-testimonial inquiries into a child’s understanding of the nature of a promise to tell the truth. It does not, however, prohibit the cross-examination of a child witness on his or her understanding of the nature of a promise to tell the truth, or the meaning of the concepts “truth” and “lie,” at the trial stage.

[24] The repealed version s. 16 provided:

Witness where capacity is in question

(1) Where a proposed witness is a person under fourteen years of age or a person whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and

(b) whether the person is able to communicate the evidence.

Testimony under oath or solemn affirmation

(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

Testimony on promise to tell truth

(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

Inability to testify

(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify;

Burden as to capacity of witness

(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

[25] Section 16 directed a pre-testimonial inquiry into a proposed child witness’s competence to testify. The provision placed a child in the same position as an adult whose competence had been challenged. In R. v. Marquard, [1993] 4 S.C.R. 223, McLachlin J. (as she then was), speaking for the majority, interpreted the provision as directing an inquiry into the proposed witness’s capacity to observe (including interpretation), recollect and communicate. The capacity to communicate evidence was held to be more than mere verbal ability and included the ability to understand and respond to questions. In dissent, L’Heureux-Dubé J. would have limited the pre-testimonial inquiry to the proposed witness’s ability to understand and respond to questions. The other factors of testimonial competence, in her view, went to the weight of the witness’s evidence, to be assessed by the trier of fact. Section 16.1 of the CEA appears to have adopted the capacity standard set out in the dissenting reasons of L’Heureux-Dubé J. in Marquard.

[26] The impugned provisions are the latest in a long line of legislative reforms within the criminal justice system. These reforms have been implemented for the purpose of facilitating the giving of testimony by children and vulnerable witnesses while ensuring that the rights of the accused are respected.

[27] The current provisions came into force on January 2, 2006, pursuant to 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., 2004, enacted S.C. 2005, c. 32). The Bill was passed following Parliament’s receipt of the findings from the Child Witness Project at Queen’s University. The Child Witness Project was composed of an interdisciplinary research team headed by Professor Nicholas Bala. The purpose of the project was to investigate the impact of pre-testimonial competency inquiries on child witnesses. The project concluded that:

· Child witnesses can be equally as reliable as adult witnesses, and often provide essential evidence for the criminal justice process;

· There is no relationship between a child’s ability to answer questions about such abstract concepts, such as “truth” and “lie”, and whether they will actually tell the truth or lie;

· If a child promises to tell the truth, the child is more likely to tell the truth, even if the child cannot give a definition of a “promise”;

· The CCTV, screen and videotape provisions of the Code have facilitated the giving of evidence by children in the criminal justice system without compromising the rights of accused persons, but they are insufficiently used; and

· Applications for orders for the use of testimonial aids were inefficiently made and inconsistently granted.

See Brief on Bill C-2: Recognizing the Capacities & Needs of Children as Witnesses in Canada’s Criminal Justice System, submitted by the Child Witness Project to the House of Commons Committee on Justice, Human Rights, Public Safety and Emergency Preparedness on March 24, 2005.

The constitutionality of s. 486.2 of the Code

[28] As was previously discussed, s. 486.2 allows for the presumptive use of a testimonial aid upon a request by the Crown or a witness under the age of 18. It eliminates the requirement that an applicant must establish need before an order for a testimonial aid may be granted, requiring the court to grant the application unless to do so would interfere with the proper administration of justice.

[29] In challenging the constitutional validity of this provision, the appellant seeks to distinguish this case from Levogiannis. He argues that the rejection of the “right of confrontation” as a constitutionally guaranteed principle of fundamental justice was based on the protections in the previously permissive provisions of s. 486(2.1). He submits that the current presumptive requirements for testimonial aids changes the context in which Levogiannis should be applied. In support of that contention he cites the comments of Madam Justice L’Heureux-Dubé J., for the Court, at 492:

In the case at hand, the accused was able to observe the young complainant as he testified. In addition, s. 486(2.1) provides a very limited exception. A screen may only be utilized in cases with regard to offences set out in the section and in which the complainant is under the age of 18. As well, the provision specifically provides for the trial judge’s discretion to make such an order if, in her or his opinion “the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant.” This, in itself, goes a long way towards guaranteeing an accused a fair trial. In Baron v. Canada, [1993] 1 S.C.R. 416, this Court held that residual judicial discretion may be constitutionally required in order to provide a mechanism for balancing the rights of an accused and those of the state.

[30] I am not persuaded that Levogiannis can be distinguished on the basis of the current presumptive wording of s. 486.2.

[31] L’Heureux-Dubé J. prefaced her analysis in Levogiannis by noting at 483:

[t]he goal of the court process is truth seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth. In ascertaining the constitutionality of s. 486(2.1) of the Criminal Code, one cannot ignore the fact that, in many instances, the court process is failing children, especially those who have been victims of abuse, who are then subjected to further trauma as participants in the judicial process. …

She continued at 484: “The plight of children who testify and the role courts must play in ascertaining the truth must not be overlooked in the context of the constitutional analysis in the case at hand. As this Court has said, children may require different treatment than adults in the courtroom setting” (citations omitted).

[32] At 482, she adopted the reasons of Morden A.C.J.O. of the Ontario Court of Appeal (1990), 1 O.R. (3d) 351. Morden A.C.J.O. observed that a screen only blocked the complainant’s view of the accused, but did not prevent the accused, the prosecutor or the trial judge from viewing the complainant. After reviewing a number of English, Canadian and American authorities, he concluded that if the accused had a right to confrontation, it was not an absolute right. If a right of confrontation exists, it is subject to qualifications in the interests of justice. Further, the “elements of confrontation”, including physical presence in the courtroom, testimony under oath or promise to tell the truth, cross-examination of the witness and observation of the witness’s demeanour, remained.

[33] L’Heureux-Dubé J. then framed the issue in Levogiannis as “simply put, whether a witness’s obstructed view of an accused, infringes the rights of such accused under s. 7 or 11(d) of the Charter” (at 485).

[34] Section 7 requires a balancing of competing interests. An accused’s right to a fair trial, including the right to make full answer and defence, must be balanced against the broader societal interest in having offences prosecuted. L’Heureux-Dubé J. rejected the argument that in order to make full answer and defence an accused must be able to confront his accuser. As was stated by MacDonald J.A. (as he then as), for the court, in R. v. R.(M.E.) (1989), 49 C.C.C. (3d) 475 (N.S.S.C. (A.D.)), at 484:

The right to face one’s accusers is not in this day and age to be taken in the literal sense. In my opinion, it is simply the right of an accused person to be present in court, to hear the case against him and to make answer and defence to it.

This statement was adopted by Morden A.C.J.O. in Levogiannis.

[35] L'Heureux-Dubé J. identified the main objective of the judicial process as the attainment of truth. She acknowledged that, in order for a child to provide a full and candid account of alleged offences, there may be circumstances where testimonial accommodation is required. In that regard, she noted at 487:

One must recall that rules of evidence are not cast in stone, nor are they enacted in a vacuum. They evolve with time. As discussed at length in L.(D.O.), supra, the recent trend in courts has been to remove barriers to the truth-seeking process (R. v. Khan, [1990] 2 S.C.R. 531; R. v. W.(R.), supra; and R. v. Marquard, [1993] 4 S.C.R. 223). Recent Supreme Court of Canada decisions (R. v. B.(K.G.), supra; R. v. Smith, [1992] 2 S.C.R. 915; R. v. Khan; and most recently in L.(D.O.)), by relaxing certain rules of evidence, such as the hearsay rules, the use of videotaped evidence and out of court statements, have been a genuine attempt to bring the relevant and probative evidence before the trier of fact in order to foster the search for truth.

Parliament, on the other hand, is free to enact or amend legislation in order to reflect its policies and priorities, taking into account societal values which it considers important at a given time. … The only limit placed on Parliament is the obligation to respect the Charter rights of those affected by such legislation.

As mentioned above and as discussed in the companion case [L.(D.O.)], rules of 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 the trial.

[36] L’Heureux-Dubé J. was satisfied that an accused’s s. 7 Charter right to a fair trial was adequately protected by the right to cross-examine the child witness, and by the residual discretion that remained with the trial judge to ensure the accused received a fair trial. Similarly, she found that an accused’s s. 11(d) Charter right to a fair trial was not infringed because the right of cross-examination was preserved, and because the use of the screen did not undermine the presumption of innocence.

[37] All of these safeguards for ensuring trial fairness are preserved in the current rendition of s. 486.2.

[38] The unique position of child witnesses in the criminal justice context was further explored by the Supreme Court of Canada in R. v. L.(D.O.), [1993] 4 S.C.R. 419, the companion decision to Levogiannis. In L.(D.O.), the accused advanced a constitutional challenge to the current s. 715.1 of the Code. Section 715.1 permits the Crown to substantively introduce into evidence the contents of a videotaped interview of a child complainant relaying his or her allegations of a sexual offence. In order to be admissible, the videotape must have been made within a reasonable time after the alleged sexual offence, and the complainant must adopt the contents of the videotape when testifying at trial.

[39] In upholding the constitutional validity of s. 715.1, L'Heureux-Dubé J., writing concurring reasons with Gonthier J., noted that previous jurisprudence recognized that the criminal justice system had to treat children differently from adults; the receipt of their evidence must be facilitated through modified rules of evidence in order to achieve the truth-seeking goal of the judicial process. These rules of evidence, she wrote, “have not been constitutionalized into unalterable principles of fundamental justice” and should not be “interpreted in a restrictive manner which may essentially defeat their purpose of seeking truth and justice” (at 422). She reiterated her comments in Levogiannis, stating that it is the task of Parliament to make reforms to the law of evidence that will serve the interests of justice and maintain the rights of an accused to a fair trial.

[40] In this case, the appellant contends that the elimination of the requirement to provide case-specific evidence of a need for a testimonial aid prevents the accused from receiving a fair trial because the decision-making power for restricting the accused’s right to confront the complainant has shifted from the court to the Crown or applicant. In support of that position, he relies on the following American and Commonwealth authorities: Coy v. Iowa, 487 U.S. 1012 (1988); Maryland v. Craig, 497 U.S. 836 (1990); D.J.X. (1989), 91 Cr. App. R. 36 (C.A.); and R. v. Accused (1988), [1989] 1 N.Z.L.R. 66 (N.Z.C.A.). In addition, he relies on the following B.C. and Ontario decisions: R. v. Pal, 2007 BCSC 1493; R. v. Letourneau (1994), 53 B.C.A.C. at paras. 93-108; R. v. Paul (1990), 1 O.R. (3d) 341 (Ont. C.A.); and R. v. Aikoriogie, 2004 ONCJ 96.

[41] While the U.S. decisions of Coy v. Iowa and Maryland v. Craig maintained the need for case-specific evidence before permitting the use of a testimonial aid, the cases were decided in the context of the explicit “confrontation clause” in the Sixth Amendment of the U.S. Federal Constitution. The English decision of D.J.X. and the New Zealand decision of Accused both upheld the trial judge’s decision to conduct a pre-testimonial inquiry into the need for a proposed child witness to testify behind a screen as a procedural matter. The trial decisions of Pal, Paul and Aikoriogie each relied on the wording of the previous s. 486(2.1). In short, none of the authorities provided by the appellant persuades me that his right to a fair trial is infringed by the elimination of the pre-testimonial inquiry. Under our criminal justice system, an accused has no constitutional right to a face-to-face “confrontation” with the complainant.

[42] Since January 2, 2006, Parliament has deemed that a pre-testimonial inquiry into the need for a testimonial aid is no longer necessary.

[43] I am satisfied that 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 my view, the reasoning in Levogiannis and L.(D.O.) continues to apply to the current provision.

[44] I am not persuaded s. 486.2 contravenes ss. 7 and/or 11(d) of the Charter. I would not accede to this ground of appeal.

The constitutionality of s. 16.1 of the Canada Evidence Act

[45] Under the repealed s. 16 of the CEA, a proposed child witness was presumed not to have testimonial competence. This presumption necessitated a pre-testimonial inquiry during which the child had to demonstrate his or her understanding of the nature of an oath or solemn affirmation, and his or her ability to communicate the evidence. As previously noted, the ability to communicate evidence includes the capacity to perceive and recollect events and to understand and respond to questions about the events in question.

[46] The pre-testimonial requirements of s. 16 produced a variety of outcomes. If the child could demonstrate an understanding of the nature of an oath or solemn affirmation, and an ability to communicate the evidence, they were required to testify under oath or solemn affirmation (s. 16(2)). If they were unable to demonstrate a sufficient understanding of the oath or solemn affirmation, but were able to communicate the evidence, they were permitted to testify on a promise to tell the truth (s. 16(3)). If they could not articulate an understanding of the nature of a promise to tell the truth, even if they could communicate the evidence, they were not competent to testify (R. v. M.A.M., 2001 BCCA 6, 149 B.C.A.C. 89; R. v. Ferguson (1996), 85 B.C.A.C. 33). If they could not satisfy any of the required pre-conditions, they could not testify. Many children were thus precluded from testifying, not because they could not give honest and reliable evidence, but because they could not satisfactorily articulate their understanding of such abstract concepts as “oath”, “promise”, “truth” and “lies”.

[47] The current s. 16.1 reverses the presumption against testimonial competence. A child’s testimonial competency, which includes his or her capacity to testify, is now presumed unless the challenging party satisfies the court that the child’s capacity to testify is in issue.

[48] The modern approach to statutory interpretation as formulated by Professor Driedger, and noted in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, 2 S.C.R. 559 at para. 26, directs that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

[49] Applying this approach to s. 16.1 leads to an interpretation which presumptively prohibits a pre-testimonial inquiry into the proposed child witness’s understanding of a promise to tell the truth, unless the applicant demonstrates that there is an issue as to the child’s capacity to testify. Even if a capacity issue is identified, s. 16.1 limits the pre-testimonial inquiry to questions about a child’s ability to understand and respond to questions. It expressly prohibits questions about a child’s understanding of the nature of a promise to tell the truth. During the trial, however, a child witness’s credibility and the reliability of their evidence may be challenged. The child witness may be cross-examined on their understanding of the nature of a promise to tell the truth and on the abstract concepts associated with that promise.

[50] With respect, in this case, the trial judge’s pre-testimonial inquiry into the complainants’ capacity to understand and respond to questions was prohibited by s. 16.1, as no party had established that either of the complainants’ capacity to testify was in issue.

[51] The appellant submits that s. 16.1 breaches his ss. 7 and 11(d) Charter rights. He contends that it is unsafe for a court to receive the evidence of a child witness unless he or she is able to demonstrate an understanding of the moral obligation to tell the truth. In that regard, the appellant relies on the comments of McLachlin J. in R. v. Rockey, [1996] 3 S.C.R. 829 at para. 25, where she identified two requirements to establish testimonial competence under the previous s. 16: the ability to communicate the evidence and the ability to promise to tell the truth. She described the latter requirement as not requiring the ability “to define the word ‘promise’ in some technical sense”; she states that, instead, the witness is required to “understand the obligation to tell the truth in giving his or her evidence.”

[52] I do not accept the appellant’s argument that if a moral obligation to tell the truth is not established, the testimony of the witness should be inadmissible. Parliament, in enacting s. 16.1, has decided that a promise to tell the truth is sufficient to engage the child witness’s moral obligation to tell the truth. Section 16.1 places child witnesses on a more equal footing to adult witnesses by presuming testimonial competence. A child witness’s moral commitment to tell the truth, their understanding of the nature of a promise to tell the truth, and their cognitive ability to answer questions about “truth” and “lies” may still be challenged on cross-examination during their testimony; their credibility and reliability may still be challenged in the same manner as an adult’s testimony may be challenged. These potential concerns, however, go to the weight of the evidence, not its admissibility.

[53] Section 16.1 changes the focus of a child’s evidence from one of admissibility to one of reliability. It discards the imposition of rigid pre-testimonial requirements which often prevented a child from testifying because of their inability to articulate an understanding of abstract concepts that many adults have difficulty explaining. It reflects the findings of Child Witness Project that the accuracy of a child’s evidence is of paramount importance, not the ability of a child to articulate abstract concepts.

[54] I do not accept that a child’s presumed testimonial incompetence is a fundamental principle of justice, or that a child’s presumed testimonial competence diminishes an accused’s right to a fair trial. I agree with the trial level decisions of M.S. and Persaud that an accused’s ss. 7 and 11(d) Charter are not infringed by s. 16.1. I am satisfied s. 16.1 reflects the procedural and evidentiary evolution of our criminal justice system, in order to facilitate the testimony of children as a necessary step in its truth-seeking goal.

[55] While enhancing the receipt of probative and relevant evidence, s. 16.1 does not restrict the traditional safeguards for ensuring an accused’s right to a fair trial: the opportunity for the accused to see and cross-examine a child witness, to call evidence, to be presumed innocent until proven guilty, and to have the Crown prove the alleged offence beyond a reasonable doubt. Equally significant, the provision maintains a residual discretion with the trial judge to permit a pre-testimonial inquiry if it can be established that there is an issue as to the ability of a child witness to understand and respond to questions.

[56] The Ontario Court of Appeal in R. v. Bickford (1989), 51 C.C.C. (3d) 181, rejected a similar Charter challenge when the Code provisions requiring corroboration of the unsworn evidence of a child witness were repealed. At 190-91 the court stated:

The contention that, in so far as this respondent is concerned, the change in the corroboration rules constitutes an infringement of his rights under s. 7 of the Canadian Charter of Rights and Freedoms may be dealt with briefly. In my opinion, the change does not operate so as to deprive the respondent of a fair trial, nor does it deprive him of any of the rights guaranteed by s. 7 or indeed by any other provision of the Charter. For the reasons already stated, he had no vested right in the evidentiary or procedural rule that required a child witness’s testimony to be corroborated, nor can he be said to have acquired such a right because the prosecution against him began before the rule was abolished. By the same token, he has no vested right to rely on a lack of corroboration defence that may have been open to him before the law was changed. The elements of the offence with which he is charged remain the same; his right to make full answer and defence is unimpaired by the change, and the Crown continues to bear the strict burden of proving its case beyond a reasonable doubt. Although the child’s testimony is no longer presumed unreliable and is placed in the same position as that of any other witness, the cogency of her testimony is a matter of weight to be determined by the trier of fact. As Professor Mewett observed in 30 Crim. L.Q. at p. 257 (1987-88), the amendments liberalising the reception of the testimony of young children in criminal cases:

… seem to be a sensible, but no excessive step, towards ensuring that such evidence is fairly received without prejudicing the rights of the accused and the protections he is entitled to.

[57] In my view, these comments are apposite to the appellant’s arguments in this appeal.

[58] In considering the capacity of child witnesses, L’Heureux-Dubé J., in her dissenting opinion in Marquard, referred to the 1984 Report of the Committee on Sexual Offences against Children and Youth (the “Badgley Report”). The Badgley Report recommended dispensing with the need to establish pre-testimonial competency of a child witness. At 258, she noted their research established “that conventional assumptions about the veracity and powers of articulation and recall of young children are largely unfounded.” She went on to note that similar reforms have been undertaken or considered in other jurisdictions, including the U.S.A., Scotland, Australia, England, and New Zealand. The civil jurisdictions of France and Germany never had competency examinations for children under 16.

[59] These comments have been legislatively adopted in s. 16.1 of the CEA. It is this capacity standard that is reflected in the current provision.

Summary

[60] In my view, s. 486.2 of the Code and s. 16.1 of the CEA represent the next step in legislative reforms to facilitate the admissibility of relevant and probative evidence from children.

[61] In the result, I would answer questions 1 and 3 as follows:

1. Section 486.2 of the Criminal Code does not violate s.7 and/or s. 11(d) of the Charter.

3. Section 16.1 of the Canada Evidence Act does not violate s. 7 and/or s. 11(d) of the Charter.

[62] I would dismiss this appeal.

“The Honourable Madam Justice D. Smith”

I AGREE:

“The Honourable Madam Justice Levine”

I AGREE:

“The Honourable Mr. Justice Chiasson”