Testimonial Aids for Young, Disabled or Vulnerable Witnesses

From Criminal Law Notebook
This page was last substantively updated or reviewed December 2022. (Rev. # 92797)

General Principles

The Criminal Code permits testimonial accommodation for certain witnesses who may have difficulty testifying under normal circumstances.

Evidentiary Foundation

An application for testimonial accommodation does not always require sworn evidence from the witness to justify it.[1] However, some authority suggests that there should be some form of affidavit or testimonial evidence.[2] The court should be open to means of diminishing the trauma and stress on child witnesses.[3]

Toys and Comfort Items

There is no direct authority on the question of comfort items for child witnesses, but there are examples of such items being permitted.[4]

Prohibition on Cross-Examination of Persons Under 18

Interpreters for Disabled

Section 6 of the Canada Evidence Act addresses communication in testimony by persons with disabilities. The first subsection 6(1) concerns physical disabilities and subsection 6(2) concerns mental disabilities. Both provisions apply when there is 1) a person is a disability who (2) has difficulty communicating because of this disability.[5]

Evidence of person with physical disability

6 (1) If a witness has difficulty communicating by reason of a physical disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.

Evidence of person with mental disability

(2) If a witness with a mental disability is determined under section 16 to have the capacity to give evidence and has difficulty communicating by reason of a disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.

Inquiry

(3) The court may conduct an inquiry to determine if the means by which a witness may be permitted to give evidence under subsection (1) or (2) is necessary and reliable.

CEA


Note up: 6(1), (2) and (3)

This applies to situations where the witness is deaf or mute and cannot communicate orally.

"intelligible"

The witnesses does not need to be "wholly unintelligible" to have s. 6 apply.[6]

No need for video evidence

Where an interpreter of sign language is used, there is no added requirement that a video record of the evidence be made.[7]

  1. R v Boden, 2021 BCSC 79 (CanLII), per Davies J
  2. R v George, 2020 BCSC 212 (CanLII), per MacKenzie J, at para 23
    R v FM, 2021 BCSC 1867 (CanLII), per Riley J, at paras 20 to 21
  3. R v L(DO), [1993 4 SCR 419], per L'Heureux‑Dubé J, at para 24
  4. R v Rose, 2022 QCCQ 12837 (CanLII) (working hyperlinks pending), per Belanger J, at paras 224 to 227
  5. R v Doncel, 2022 ONCJ 143 (CanLII), per Fraser J, at para 11
  6. Doncel, supra, at para 12
  7. R v Titchener, 2013 BCCA 64 (CanLII), 333 BCAC 234, per Ryan JA

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