W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
CITATION: R. v. D.I., 2010 ONCA 133
DATE: 20100219
DOCKET: C48807
COURT OF APPEAL FOR ONTARIO
Doherty, MacPherson and Armstrong JJ.A.
BETWEEN:
Her Majesty the Queen
Appellant
And
D.I.
Respondent
Jamie Klukach, for the appellant
Howard Krongold, for the respondent
Heard: December 15, 2009
On appeal from the judgment of Justice Colin D. McKinnon of the Superior Court of Justice dated April 14, 2008.
Doherty and MacPherson JJ.A.:
A. INTRODUCTION
[1] The respondent was charged with one count of sexual assault in relation to the complainant K.B., a 19-year-old developmentally challenged woman with the cognitive capabilities of a three to six-year-old child. The offence was alleged to have occurred when the respondent cohabited with K.B.’s mother, Mrs. B.
[2] The respondent was tried by McKinnon J. of the Superior Court of Justice, sitting without a jury. The trial judge acquitted the respondent. The Crown appeals, essentially on two grounds: first, that the trial judge erred by ruling that K.B. did not have testimonial competence under s. 16 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA”); and second, that the trial judge erred in excluding K.B.’s hearsay statements to her school teacher and a police officer.
B. FACTS
[3] The respondent lived with the B family – Mrs. B, K.B. and her younger sister J.B. – in their Ottawa home from 2000 to 2004. The respondent and K.B. were very close. In conversations with her school teacher, Heather White, K.B. was very complimentary about the respondent. After the respondent moved out of the B home, K.B. told her teacher that she missed him.
[4] However, K.B. also told Ms. White about a “hugging game” she and the respondent played together. In the game, according to K.B., the respondent rubbed her breasts, buttocks and genitals.
[5] Ms. White immediately informed the school principal of K.B.’s statements and the police were contacted. On May 3, 2005, K.B. was interviewed by Sergeant David Christie. Her statement, approximately 20 minutes in duration, was recorded. When Sergeant Christie asked K.B. about touching, she replied, “He touched my body”, and when asked where she had been touched, K.B. touched her breasts, vaginal area and buttocks. When asked if this happened once or more than once, K.B. answered “all the time.” When asked if the respondent touched her breasts, she answered, “Yeah”, and when asked whether he touched “over top of [her] pyjamas,” she replied “underneath”. When asked “how”, she responded “from underneath the pyjamas”.
[6] At the preliminary inquiry on June 29, 2006, K.B. was found to be a competent witness. Pursuant to s. 715.2 of the Criminal Code, her videotaped statement to police was admitted as her examination in chief and she was cross-examined.
[7] At the trial, the issue of K.B.’s competence to testify came up again under s. 16 of the CEA, which provides:
- (1) If a proposed witness is a person of fourteen years of age or older 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.
(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.
(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.
(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.
(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.
[8] Pursuant to ss. 486.1 and 486.2 of the Criminal Code, K.B.’s examination was conducted outside the courtroom, in the presence of a support worker, and transmitted by way of closed circuit television. K.B. was asked questions by Crown counsel, defence counsel and the trial judge.
[9] In addition, Dr. Varan Kunjukrishnan was qualified to give opinion evidence with respect to K.B.’s cognitive capacity. His opinion was based on his review of K.B.’s school and medical records and his observation of her during the competence voir dire.
[10] Dr. Kunjukrishnan testified that K.B.’s level of intellectual functioning was lower than the first percentile. Her social functioning was equivalent to that of a three to six-year-old child. K.B.’s medical reports indicated a low frustration tolerance, meaning that she tends to respond impulsively and aggressively to things she does not comprehend. His opinion, after watching K.B. throughout the voir dire, was that K.B. “has serious difficulty in differentiating the concept of truth and lie.”
[11] The trial judge determined that K.B. was not competent to testify. He said:
Having questioned [K.B.] at length I am fully satisfied that [K.B.] has not satisfied the prerequisite that she understands the duty to speak the truth. She cannot communicate what truth involves or what a lie involves, or what consequences result from truth or lies, and in such circumstances, quite independent of Doctor Kunjukrishnan, I am not satisfied that she can be permitted to testify under a promise to tell the truth.
As I say this is a criminal trial involving criminal charges and while every effort should be brought to bear to accommodate witnesses with disabilities, at the end of the day the Court has an obligation to ensure that evidence that is going to be used in an attempt to convict an individual must meet the requirements of the law, and in this case unfortunately [K.B.] cannot be permitted to give evidence.
[12] Following the trial judge’s disqualification of K.B. as a witness, the Crown applied to admit her hearsay statements to the police and to her teacher. At the conclusion of a voir dire, the trial judge ruled that the statements were inadmissible. He observed that “there are numerous contradictions within the various interviews of [K.B.] and with other evidence led on the voir dire”. He also found that “[w]hat the Crown purports to be confirmatory evidence is either ambiguous or itself unreliable.” He concluded:
In the case at bar, I am persuaded that threshold reliability must have some regard to an assessment of whether the statement is true or not, and whether any adequate substitutes exist for testing the evidence. I have concerns regarding the truth of the statement and I find that there are no adequate substitutes for testing [K.B.]’s evidence.
I am convinced that to admit [K.B.]’s statement for its truth would deprive the court of any reliable method of testing its truth. Phrased another way, the evidence is unreliable, and its admission would seriously compromise the accused’s right to a fair trial. Moreover, the prejudicial effect of its admission would outweigh its probative value.
[13] The trial continued with testimony from K.B.’s sister J.B., who testified that she observed the respondent fondle K.B.’s breasts while in K.B.’s bedroom watching television. In addition, the Crown introduced evidence of Polaroid photographs found in the respondent’s possession that depicted K.B. exhibiting her bare breasts.
[14] In his decision, the trial judge rejected J.B.’s testimony because of her “professed animus against the accused, her professed hatred of her mother and what I construe to be troubling inconsistencies in her evidence.”
[15] With respect to the photograph, the trial judge recorded the respondent’s explanation that K.B. “flashed” him just as he was taking her picture. He then reasoned:
[S]uch evidence could lead to a suggestion that the accused harboured a sexual interest in [K.B.]. At the same time, his explanation might constitute the truth, namely that the photo was innocently taken. In the end … I would conclude that the photo is insufficient to provide confirmatory evidence of a sexual assault.
[16] The trial judge acquitted the respondent. The Crown appealed.
C. ISSUES
[17] The Crown raises two issues on the appeal:
(1) Did the trial judge err by holding that K.B. was not a competent witness within the meaning of s. 16 of the Canada Evidence Act?
(2) Did the trial judge err by excluding K.B.’s hearsay statements?
D. ANALYSIS
(1) The complainant’s competence to testify
[18] The Crown makes a two-pronged challenge to the trial judge’s ruling that K.B. was not competent. First, the Crown contends that the trial judge made errors in applying the existing jurisprudential standard for determining competence under s. 16(3) of the CEA, both by applying too high a standard in assessing K.B.’s testimonial competence, and by refusing to hear evidence from Ms. White, K.B.’s school teacher, during the competence voir dire. The latter error, the appellant contends, gave rise to unfairness in the trial process. Second, the Crown argues that in light of statutory amendments applicable to the competence assessment of witnesses under the age of 14, this court should reconsider the competency test now applicable to witnesses 14 or older and apply a new standard, consistent with the statutory standard now applicable to children under 14.
(a) The competence decision
[19] The appellant submits that in making his ruling the trial judge placed too much emphasis on K.B.’s apparent inability to appreciate the consequences of telling a lie, the penalty for lying, and the solemnity of criminal proceedings. According to the appellant, the trial judge also relied inappropriately on K.B.’s inability to communicate the meaning of abstract concepts such as truth, lies and promises. The result, asserts the appellant, was a test more onerous than that required under s. 16 of the CEA and unsuitable for a witness of K.B.’s intellectual and cognitive limitations.
[20] We do not accept this submission. We begin with the observation that the standard of review with respect to a trial judge’s decision under s. 16 of the CEA is a very deferential one. As expressed by McLachlin J. in R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, a case dealing with a child witness but, in our view, equally applicable to a case where an adult witness has the intellectual and cognitive ability of a very young child, at pp. 237-38:
It has repeatedly been held that a large measure of deference is to be accorded to the trial judge's assessment of a child's capacity to testify. Meticulous second-guessing on appeal is to be eschewed. As Dickson J. (as he then was) put it in the oft-cited case of R. v. Bannerman a trial judge's discretion in determining that a child is competent to testify “unless manifestly abused, should not be interfered with.” [Citations omitted.]
[21] A highly deferential standard of review is particularly appropriate in the domain of witness competence inquiries because the trial judge hears not only what the proposed witness says, but also how it is said. The importance of the latter factor was described in R. v. Farley (1995), 1995 CanLII 3501 (ON CA), 23 O.R. (3d) 445 (C.A.), at pp. 456-57:
The trial judge had the advantage of seeing and hearing the complainant during the s. 16 inquiry. Her ultimate decision that the complainant was competent to testify upon promising to tell the truth was based, no doubt, on more than the mere words spoken by him. The way the complainant answered the questions and his overall deportment during the inquiry surely afforded the trial judge added and valuable insight into the complainant's cognitive skills and his capacity to understand the obligation to tell the truth. The strong warning against appellate second-guessing sounded in Marquard recognizes both the potential value of these additional insights and their unavailability to those engaged in appellate review.
[22] There is no doubt that K.B. has some limited intellectual and cognitive ability. Moreover, it is clear that, in a difficult and stressful environment, she did her best. During portions of her testimony, she was able to understand the questions and provide appropriate responses. For example, when Crown counsel began with a number of questions concerning her everyday life, K.B. responded with coherent answers about her age, the names of her current and former schools, the name of her former teacher, and her interest in hockey. Crown counsel then proceeded to question K.B. about the difference between truth and lies and she responded in an appropriate fashion:
MR. SEMENOFF: [K.B.], if I were to tell you that the room that we’re in that the walls in the room are black, would that be a truth or a lie, [K.B.]?
A: A lie.
Q: Why would it be a lie?
A: It’s different colours in here.
Q: There are different colours in here. What colour are the walls?
A: Purple.
Q: Purple. Okay. If I were to tell you that the gown that I’m wearing that it is black, would that be the truth or a lie?
A: The truth.
Q: And why is that?
A: I don’t know.
Q: You don’t know. Is it a good thing or a bad thing to tell the truth?
A: Good thing.
Q: Is it a good thing or a bad thing to tell a lie?
A: Bad thing.
[23] However, after this promising start, K.B.’s responses quickly deteriorated. When the trial judge asked her questions about her family and daily routine, K.B. was responsive to some but replied “I don’t know” to many others. When the trial judge turned to K.B.’s understanding of truth, promises, and the consequences of telling a lie, this exchange followed:
THE COURT: Do you go to church, K.B.?
A: No.
Q: No. Have you ever been taught about God or anything like that?
A: No.
Q: No? All right. What happens if you steal something?
A: I don’t know.
Q: You don’t know. If you steal something and no one sees it, will anything happen to you? Nothing will happen. Why won’t anything happen?
A: I don’t know.
Q: You don’t know. Tell me what you think about the truth.
A: I don’t know.
Q: You don’t know. All right. Is it important to tell the truth?
A: I don’t know.
Q: You don’t know. Tell me what a promise is when you make a ---
A: I don’t know.
Q: -- promise. What’s a promise?
A: I don’t know.
Q: You don’t know what a promise is. Okay. Have you ever been in court before?
A: Once.
Q: Once? And do you think it’s an important thing to be in court?
A: I don’t know.
Q: You don’t know. All right. Do you know what an oath is, to take an oath?
A: I don’t know.
Q: No. Do you have any idea what it means to tell the truth?
A: I don’t know.
Q: You don’t know. If you tell a lie does anything happen to you? Nothing happens.
A: No.
[24] After K.B. finished her testimony, which was quite brief, Dr. Kunjukrishnan testified. Based on his observations during the voir dire, he was unable to provide an opinion as to K.B.’s competence under s. 16 of the CEA. He had concerns about her ability to understand concepts of truth and lying, although he acknowledged that these were “difficult concepts for anybody.” He testified that a broader range of questions would have been preferable and suggested questioning K.B. about verifiable facts pertaining to her life and surroundings.
[25] The trial judge acceded to this suggestion. K.B. continued to testify and replied “I don’t know” to an increasing number of questions. Finally, this exchange took place:
THE COURT: Do you know why you are here today?
A: I don’t know. To talk about [D.I.]
Q: Yes, and do you think that’s really important?
A: Maybe yeah.
Q: Maybe yeah? Remember earlier I was asking you about a promise?
A: No.
Q: Have you ever made a promise to anybody?
A: I don’t know.
Q: That you promised you’ll be good, did you ever say that? Have you ever heard that expression “I promise to be good, mommy”?
A: Okay.
Q: All right. So you know what a promise is, that you’re going to do something the right way? Do you understand that?
A: Okay.
Q: Can you tell me whether you understand that, [K.B.]?
A: I don’t know.
Q: Does anything happen if you break a promise?
A: I don’t know.
Q: You told me you don’t go to church, right?
A: Right.
Q: And no one has ever told you about God; is that correct? No one has ever told you about God?
A: No.
Q: Has anyone ever told you that if you tell big lies you’ll go to jail?
A: Right.
Q: If you tell big lies will you go to jail?
A: No.
[26] Following the conclusion of K.B.’s testimony, Dr. Kunjukrishnan again took the stand. He testified that the second questioning of K.B. “confirms more my initial impression that [K.B.] is not capable of differentiating the concept of truth and lie”.
[27] One of the components of s. 16(3) of the CEA is a promise to tell the truth by a prospective witness. This entails “an understanding of the duty to speak the truth”: see Farley, at p. 451. This is precisely what the trial judge focussed on in his discussions with counsel and in his ruling. During submissions, the trial judge said:
In other words, I suppose what I’m saying to you is I’m fully satisfied that this witness does not understand what a promise to tell the truth involves, has no concept of that. None. Zero. Then that’s what this inquiry is about.
[28] Less vividly, in his ruling the trial judge said:
I am fully satisfied that [K.B.] has not satisfied the prerequisite that she understands the duty to speak to the truth. She cannot communicate what truth involves or what a lie involves, or what consequences result from truth or lies, and in such circumstances, quite independent of the evidence of Dr. Kunjukrishnan, I am not satisfied that she can be permitted to testify under a promise to tell the truth.
[29] Based on our review of the transcript of the competence voir dire, this conclusion was entirely open to the trial judge. To hold otherwise would amount to, in the language of Marquard, “[m]eticulous second-guessing on appeal.”
(b) The fairness of the competence voir dire
[30] The trial judge refused to hear evidence from K.B.’s school teacher, Heather White, during the competence voir dire. The appellant submits that this was unfortunate and unfair. It was unfortunate because Ms. White had extensive contact with K.B. over a six-year period and knew a great deal about K.B.’s cognitive and communicative abilities; thus Ms. White’s evidence might have assisted the trial judge in formulating appropriate questions for the examination of K.B. during the voir dire hearing. It was unfair because the trial judge permitted the defence to call Dr. Kunjukrishnan as an expert witness to provide an opinion about K.B.’s cognitive ability; Ms. White’s experience with K.B. led her to have a different view.
[31] We do not accept this submission. The Crown did not signal clearly to the trial judge that Ms. White was a proposed witness on the issue of K.B.’s competence to testify until the very end of the voir dire (it was clear that Ms. White would be a witness on the hearsay voir dire). Moreover, on a day where several witnesses, including Ms. White and Dr. Kunjukrishnan, were stacked in a holding pattern, Crown counsel specifically agreed that the competence hearing, including K.B.’s and Dr. Kunjukrishnan’s testimony, should proceed immediately after a lunch break. It follows that Crown counsel implicitly disclaimed any potential link between Ms. White’s testimony about K.B.’s cognitive and communication abilities and the formulation of appropriate questions for the examination of K.B.
[32] As for unfairness, a trial judge should be given a fair amount of leeway in how he or she manages a criminal trial. On a competence voir dire, the mandate under s. 16 of the CEA rests squarely with the trial judge (“the court shall … conduct an inquiry”). Moreover, the trial judge is particularly well-suited to do this. As expressed by Binnie J. in R. v. Parrott, 2001 SCC 3, [2001], 1 S.C.R. 178, at paras. 57 and 60:
Whether a complainant “is able to communicate the evidence” in this broad sense is a matter on which a trial judge can (and invariably does) form his or her own opinion. It is not a matter “outside the experience and knowledge of a judge or jury” (Mohan, supra, at p. 23). It is the very meat and potatoes of a trial court's existence.
The point, I think, is that trial judges are able to assess such matters as “childlike mental condition” or “poor ability to sustain questioning” without expert assistance. [Emphasis in original.]
[33] In this case, K.B. was examined by Crown counsel, defence counsel and the trial judge. At the end of K.B.’s testimony, the trial judge had formed a clear view on the question of K.B.’s competence to testify. He communicated this to counsel, indicating that he did not need to hear from Ms. White and “quite frankly I wouldn’t have to hear from Doctor Kunjukrishnan either.” The only reason that Dr. Kunjukrishnan had already testified was for scheduling purposes pursuant to the agreement of the trial judge and both counsel. Moreover, although the trial judge referred to Dr. Kunjukrishnan’s testimony in his ruling, he specifically stated that he had reached his conclusion about K.B.’s testimonial competence “quite independent of the evidence of Doctor Kunjukrishnan”.
[34] In conclusion, in our view the trial judge presided over a full and fair competence voir dire hearing in this trial.
(c) The argument for a new competence standard
[35] The Crown argues that the research and policy considerations that led to the enactment of s. 16.1 of the CEA should inform the common law interpretation of s. 16(3), the provision applied in this case to determine that K.B.’s evidence should not be received. Section 16.1 is the provision that now applies to assess the competence of witnesses under age 14.
[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 CanLII 151 (SCC), [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), 2008 BCCA 401, 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.
(2) The hearsay statements
[45] The trial judge delivered comprehensive reasons in support of his ruling that K.B.’s statements to her teacher, Ms. White, and to the police should not be admitted under the principled exception to the hearsay rule. His ruling on this issue is entitled to substantial deference: see R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 81. In particular, “[a]ppellate deference is due to the decisions of trial judges determining that hearsay evidence meets the test of threshold reliability”: see R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at para. 101.
[46] Nevertheless, the appellant submits that the trial judge erred by not admitting K.B.’s statements, essentially for two reasons.
[47] First, the appellant contends that the trial judge erred by effectively deciding that K.B.’s testimonial incompetence predetermined the unreliability of her hearsay statements.
[48] We do not accept this submission. In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, Charron J. held that the admissibility analysis in a hearsay voir dire ought to be focussed on whether the hearsay dangers have been overcome. These hearsay dangers include the inability to inquire into the declarant’s perception, memory and credibility: see Khelawon, at para. 71. A witness’s testimonial competence in a CEA s. 16 context – the ability to perceive, recall and communicate events and to understand the difference between truth and falsehood – covers precisely the same terrain. Accordingly, it is not surprising, and it is not an error, that the trial judge’s reasoning on the issue of the threshold reliability in his hearsay ruling was quite similar to his reasoning on the CEA s. 16 voir dire.
[49] Second, the appellant submits that the trial judge erred in his treatment of the potentially confirmatory evidence of K.B.’s sister, J.B., and the photograph of K.B. found in the respondent’s possession.
[50] We disagree. The trial judge carefully reviewed the testimony of J.B and the evidence relating to the photograph. He rejected J.B.’s testimony:
[J.B.]’s evidence troubled me. I felt that throughout her evidence she appeared to have a huge chip on her shoulder. I am not satisfied that much reliance can be placed on her testimony.
The trial judge recognized that the photograph might suggest that the respondent had a sexual interest in K.B. He also stated that the respondent’s explanation – that K.B. “flashed” him just as he was taking her picture – might constitute the truth. In the end, he concluded that “the photo is insufficient to provide confirmatory evidence of a sexual assault.” In our view, both of these conclusions were open to the trial judge.
E. DISPOSITION
[51] We would dismiss the appeal.
RELEASED: February 19, 2010 “D.D.”
“Doherty J.A.”
“J. C. MacPherson J.A.”
“I agree Robert P. Armstrong J.A.”
[^1]: This ignores for the moment that by virtue of s. 16.1(7) a child could not be asked those questions.