Credibility and Reliability of Child Witnesses: Difference between revisions

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{{CanLIIR|Marquard|1frx2|1993 CanLII 37 (SCC)}}{{perSCC|McLachlin J}}</ref>
{{CanLIIR|Marquard|1frx2|1993 CanLII 37 (SCC)}}{{perSCC|McLachlin J}}</ref>


; "Reasonable child" standard
The credibility of children is approached generally in the same way as adults. However, the standard of a "reasonable adult" may not be appropriate as a “reasonable child” may differ from that of an adult.<ref>
The credibility of children is approached generally in the same way as adults. However, the standard of a "reasonable adult" may not be appropriate as a “reasonable child” may differ from that of an adult.<ref>
{{CanLIIR|GB|1fsw6|1990 CanLII 114 (SCC)}}{{perSCC|McLachlin J}}{{atL|1fsw6|48}}<br>
{{CanLIIR|GB|1fsw6|1990 CanLII 114 (SCC)}}{{perSCC|McLachlin J}}{{atL|1fsw6|48}}<br>
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</ref>
</ref>


; Difference of Perception
Children "experience the world differently from adults", as such absence of details such as time and place are understandable and not necessarily fatal.<ref>
Children "experience the world differently from adults", as such absence of details such as time and place are understandable and not necessarily fatal.<ref>
{{ibid1|RW}}{{atL|1fsbj|24}}<br>
{{ibid1|RW}}{{atL|1fsbj|24}}<br>
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{{supra1|BEM}}</ref>
{{supra1|BEM}}</ref>


; Same Standard of Scrutiny
Regardless, the standard of proof for the Crown is always the same and should be examined with the same level of scrutiny.<ref>
Regardless, the standard of proof for the Crown is always the same and should be examined with the same level of scrutiny.<ref>
{{supra1|GB}}{{atL|1fsw6|48}}<br>
{{supra1|GB}}{{atL|1fsw6|48}}<br>
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{{CanLIIRP|TP|2f82w|2010 CanLII 79501 (NL PC)|[2010] NJ No 414 (P.C.)}}{{perNLPC|Brazil J}}</ref>
{{CanLIIRP|TP|2f82w|2010 CanLII 79501 (NL PC)|[2010] NJ No 414 (P.C.)}}{{perNLPC|Brazil J}}</ref>


For details on the appropriate approach to assessing the evidence of children, see {{supra1|BG}} and {{supra1|RW}}
; No Corroboration Needed
 
In certain cases, guilt can be found upon the testimony of a single child witness without corroboration.<ref>
In certain cases, guilt can be found upon the testimony of a single child witness without corroboration.<ref>
{{CanLIIR|Vetrovec|1lpc2|1982 CanLII 20 (SCC)}}{{perSCC|Dickson J}} ("The common law, rejecting the 'numerical criterion' common to some legal systems, has traditionally held that the testimony of a single witness is a sufficient basis for a criminal conviction.")</ref>
{{CanLIIR|Vetrovec|1lpc2|1982 CanLII 20 (SCC)}}{{perSCC|Dickson J}} ("The common law, rejecting the 'numerical criterion' common to some legal systems, has traditionally held that the testimony of a single witness is a sufficient basis for a criminal conviction.")</ref>


; Inconsistencies
Guilt may also be found despite the presence of inconsistencies on material issues, lack of recent complaint, motive to lie and concoct, passage of time, and recovered memory.<ref>
Guilt may also be found despite the presence of inconsistencies on material issues, lack of recent complaint, motive to lie and concoct, passage of time, and recovered memory.<ref>
{{CanLIIRP|François|1frqm|1994 CanLII 52 (SCC)|[1994] 2 SCR 827}}{{perSCC|McLachlin J}}
{{CanLIIRP|François|1frqm|1994 CanLII 52 (SCC)|[1994] 2 SCR 827}}{{perSCC|McLachlin J}}
</ref>
</ref>


; Passage of Time
The passage of a significant amount of time between the events and the laying of charges does not by itself warrant any caution.<ref>
The passage of a significant amount of time between the events and the laying of charges does not by itself warrant any caution.<ref>
{{CanLIIR|Betker|6h7s|1997 CanLII 1902 (ON CA)}}{{perONCA|Moldaver JA}} - adult testifying to abuse as child
{{CanLIIR|Betker|6h7s|1997 CanLII 1902 (ON CA)}}{{perONCA|Moldaver JA}} - adult testifying to abuse as child
</ref>
</ref>


; Recollection by Child
It is recognized that a child "will have a better recollection of events shortly after they occurred" than weeks or months after.<ref>
It is recognized that a child "will have a better recollection of events shortly after they occurred" than weeks or months after.<ref>
{{CanLIIRP|F(CC)|1fqwc|1997 CanLII 306 (SCC)|[1997] 3 SCR 1183}}{{perSCC|Cory J}}{{atL|1fqwc|19}} ("It is self‑evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later.")
{{CanLIIRP|F(CC)|1fqwc|1997 CanLII 306 (SCC)|[1997] 3 SCR 1183}}{{perSCC|Cory J}}{{atL|1fqwc|19}} ("It is self‑evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later.")
</ref>
</ref>


The mere fact of a significant passage of time between the alleged offences and the laying of the charges does not, in itself, mandate such a caution.
; Guidelines
 
Suggested guidelines include:<ref>
Suggested guidelines include:<ref>
{{CanLIIR|AF|1tsf2|2007 BCPC 345 (CanLII)}}{{perBCPC|Skilnick J}}
{{CanLIIR|AF|1tsf2|2007 BCPC 345 (CanLII)}}{{perBCPC|Skilnick J}}
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#the burden of proof (guilt beyond a reasonable doubt) remains unchanged when the Crown case is founded upon the evidence of a child or children.  Specifically, the rules pertaining to credibility as set out by the Supreme Court of Canada in R v D.W. do not change just because the Crown’s case is founded upon such evidence.
#the burden of proof (guilt beyond a reasonable doubt) remains unchanged when the Crown case is founded upon the evidence of a child or children.  Specifically, the rules pertaining to credibility as set out by the Supreme Court of Canada in R v D.W. do not change just because the Crown’s case is founded upon such evidence.


; No Assumption of Unreliability
There can be no assumption that a witness is unreliable simply because of their age.<ref>
There can be no assumption that a witness is unreliable simply because of their age.<ref>
{{CanLIIR|VK|23278|1991 CanLII 5761 (BC CA)}}{{perBCCA|Wood JA}}{{atsL|23278|18|}}, {{atsL-np|23278|33|}}
{{CanLIIR|VK|23278|1991 CanLII 5761 (BC CA)}}{{perBCCA|Wood JA}}{{atsL|23278|18|}}, {{atsL-np|23278|33|}}
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</ref>
</ref>


Child evidence contains specifi concrete details or is consisten w<ref>
Child evidence that is graphic, clear, and unambiguous and is consistent with other witnesses are particularly compelling.<ref>
{{CanLIIR|Marleau|1k1rk|2005 CanLII 8667 (ON CA)}}{{perONCA|Lang JA}}
{{CanLIIR|Marleau|1k1rk|2005 CanLII 8667 (ON CA)}}{{perONCA|Lang JA}}
</ref>
</ref>

Revision as of 11:39, 28 May 2021

General Principles

There is no fixed formula for dealing with child witnesses.[1]

"Reasonable child" standard

The credibility of children is approached generally in the same way as adults. However, the standard of a "reasonable adult" may not be appropriate as a “reasonable child” may differ from that of an adult.[2] "Flaws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult."[3] A child should not be held to the same "exacting standards" as an adult.[4] The evidence of a child must be approached on a "common sense" basis, "taking into account the strengths and weaknesses which characterize the evidence". [5]

Difference of Perception

Children "experience the world differently from adults", as such absence of details such as time and place are understandable and not necessarily fatal.[6] Stereotypes of children should be avoided.[7]

Same Standard of Scrutiny

Regardless, the standard of proof for the Crown is always the same and should be examined with the same level of scrutiny.[8]

No Corroboration Needed

In certain cases, guilt can be found upon the testimony of a single child witness without corroboration.[9]

Inconsistencies

Guilt may also be found despite the presence of inconsistencies on material issues, lack of recent complaint, motive to lie and concoct, passage of time, and recovered memory.[10]

Passage of Time

The passage of a significant amount of time between the events and the laying of charges does not by itself warrant any caution.[11]

Recollection by Child

It is recognized that a child "will have a better recollection of events shortly after they occurred" than weeks or months after.[12]

Guidelines

Suggested guidelines include:[13]

  1. the credibility of child witnesses must be assessed carefully (in this context, “carefully” implies no bias either towards accepting or rejecting that evidence);
  2. the standard to be applied in assessing the credibility of a child witness is not necessarily the same as that applied to a reasonable adult;
  3. allowance must be made for the fact that young children may not be able to recount precise details and may not be able to communicate precisely the “when” and the “where” of an event, but their inability to do so should not lead to the conclusion that they have misperceived what has happened to them or who has done something to them;
  4. there is no assumption or presumption at law that a child’s evidence is less reliable than an adult’s;
  5. a common sense approach must be used in assessing the credibility of a child’s evidence, having regard to the age of the child, the child’s mental development and the child’s ability to communicate;
  6. inconsistencies, particularly concerning peripheral matters such as time or place, should not have the same adverse effect on the credibility of a child as it might in the case of an adult, having regard to the age and mental development of the child and other relevant factors;
  7. the burden of proof (guilt beyond a reasonable doubt) remains unchanged when the Crown case is founded upon the evidence of a child or children. Specifically, the rules pertaining to credibility as set out by the Supreme Court of Canada in R v D.W. do not change just because the Crown’s case is founded upon such evidence.
No Assumption of Unreliability

There can be no assumption that a witness is unreliable simply because of their age.[14] However, where the age is particularly young, such as where a 6 year old is testifying to a time when he was under 2 years old, then special considerations should be made.[15]

Child evidence that is graphic, clear, and unambiguous and is consistent with other witnesses are particularly compelling.[16]

Stereotypes of Children

It is an error of law for judges to rely on stereotypes on how children are expected to react in the circumstances of sexual offences.[17]

  1. ↑ R v Marquard, 1993 CanLII 37 (SCC), per McLachlin J
  2. ↑ R v GB, 1990 CanLII 114 (SCC), per McLachlin J, at para 48
    R v HC, 2009 ONCA 56 (CanLII), 241 CCC (3d) 45, per Watt JA, at para 42
  3. ↑ HC, supra, at para 42
  4. ↑ GB, supra, at para 48
  5. ↑ R v RW, 1992 CanLII 56 (SCC), per McLachlin J
  6. ↑ RW, ibid., at para 24
    R v RRD, 2011 NLTD(G) 78(*no CanLII links)
    R v BEM, 2010 BCCA 602 (CanLII), [2010] BCJ No 2787 (CA), per Bennett JA (3:0)
  7. ↑ RRD, supra
    BEM, supra
  8. ↑ GB, supra, at para 48
    RW, supra, at para 25 (the approach to child evidence does "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.")
    Marquard, supra, at pp. 221-222
    R v WS, 1994 CanLII 7208, 90 CCC (3d) 242 (Ont. C.A.), per Finlayson JA, at p. 251
    R v PB, [2011] OJ No 423 (SCJ)(*no CanLII links)
    R v TP, 2010 CanLII 79501 (NL PC), [2010] NJ No 414 (P.C.), per Brazil J
  9. ↑ R v Vetrovec, 1982 CanLII 20 (SCC), per Dickson J ("The common law, rejecting the 'numerical criterion' common to some legal systems, has traditionally held that the testimony of a single witness is a sufficient basis for a criminal conviction.")
  10. ↑ R v François, 1994 CanLII 52 (SCC), [1994] 2 SCR 827, per McLachlin J
  11. ↑ R v Betker, 1997 CanLII 1902 (ON CA), per Moldaver JA - adult testifying to abuse as child
  12. ↑ R v F(CC), 1997 CanLII 306 (SCC), [1997] 3 SCR 1183, per Cory J, at para 19 ("It is self‑evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later.")
  13. ↑ R v AF, 2007 BCPC 345 (CanLII), per Skilnick J
  14. ↑ R v VK, 1991 CanLII 5761 (BC CA), per Wood JA, at paras 18, 33
  15. ↑ R v CF, 1996 CanLII 623 (ON CA), per Brooke JA, at para 18
    Marquard
  16. ↑ R v Marleau, 2005 CanLII 8667 (ON CA), per Lang JA
  17. ↑ R v ARD, 2017 ABCA 237 (CanLII)

Recovered Memories

The accuracy of memories of children may be affected adversely by the use of therapy. Prudence must be taken in accepting recovered memories.[1]

  1. ↑ PC v RC, 1994 CanLII 7501 (ON SC), per Corbett J
    R v ZEB, 2006 NSSC 36 (CanLII), per Gruchy J, at para 42
    see also R v GDD, [1995] NSJ No 529(*no CanLII links)
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