Brief on Bill C-2

March 4, 2005

Brief on Bill C-2:Recognizing the Capacities & Needs of

Children as Witnesses in Canada’s Criminal Justice System

Submitted to House of Commons Committee on

Justice, Human Rights, Public Safety & Emergency Preparedness

To be presented, March 24, 2005, Ottawa

by

Child Witness Project at Queen's University Principal Investigator: Prof. Nicholas Bala

Faculty of LawQueen’s University

Kingston, Ontario

Tel 613-533-6000 ext. 74275Fax. 613-533-6509

Email: [email protected]

PROJECT MEMBERS involved in preparation of this Brief:Prof. Nicholas Bala, Faculty of Law, Queen’s UniversityDr. Rod Lindsay, Psychology Department, Queen's UniversityDr. Victoria Talwar, Dept. of Educational & Psychological Counselling, McGill University Dr. Kang Lee, Psychology Department, University of California at San Diego (formerly at Queen’s University)Ms. Janet Lee, Manager, Victim Witness Program (Ministry of the Attorney General), Kingston, OntarioMs. Amy Leach, doctoral candidate, Psychology Department, Queen's University Ms. Karuna Ramakrishnan, LL.B. graduate 2004, Queen’s University (presently articling student, MAG)Ms. Joanna Harris, LL.B. candidate 2005, Queen’s University

Much of the research that is referred to in this Brief was carried out by the Child Witness Project at Queen’s University. Funding support for the Child Witness Project has been provided by the Social Sciences and Humanities Research Council of Canada. The views expressed here are those of the Project members, not those of Queen’s University, the Ministry of the Attorney General or the Council. The Project’s website is http://law.queensu.ca/faculty/bala/witness/witness.htm

Summary:We are an interdisciplinary research team based primarily at Queen’s University, studying issues related to the competence, reliability and credibility of child witnesses. The principal investigator of the Project and

principal drafter of this brief is Prof. Bala, a Law Professor whose main area of study is legal issues related to families and children (resume attached). This Brief on Bill C-2 deals only with the sections of the Bill governing the testimony of child witnesses, including the proposed reform of s. 16.1 of the Canada Evidence Act, as this has been the area in which we have focussed our research. However, Prof. Bala is willing to answer questions at the Committee Hearing on other aspects of the Bill.

The research that has been conducted at Queen’s University and elsewhere establishes that: Children can be as reliable witnesses as adults, and often have essential evidence for the

criminal justice process. There is no relationship between children’s ability to answer questions about such abstract

concepts 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 the meaning of a “promise.” The closed circuit television, screen and videotape provisions of the Criminal Code have

facilitated the giving evidence by children in the criminal justice system without compromising the rights of accused persons, but they are insufficiently used.

In the Fall of 2003, we submitted a Brief on an earlier version of Bill C-2 (Bill C-20). That Brief focused on the reform of the provisions of the Canada Evidence Act s. 16 dealing with the competency inquiry for child witnesses. Our Brief was influential and there were substantial improvements in that Bill as a result of the Committee hearings. Unfortunately, that Bill died on the Senate order paper when the election was called in 2004.

Bill C-2 has important provisions that will significantly enhance the ability of child victims and witnesses to testify in the criminal justice system. While we propose some relatively minor amendments, we generally support Bill C-2, and urge its speedy passage to help ensure justice for Canada’s children. If the portions of the Bill that deal with child pornography are too contentious, they might be severed from this Bill. Controversy over one relatively small portion of the Bill should not delay enactment of important reforms that will increase the protections afforded Canada’s children. Parliament must demonstrate leadership in its commitment to children and ensure that this law is enacted.

Support Persons: Section 486.1 creates a presumption that a child who wants a support person while testifying can have that person close by. This is a significant improvement in the law, though it would be preferable for s. 486.1(3) to explicitly state that the welfare of the child is to be a factor in deciding whether to make use of this provision.

Closed Circuit Television and Screens: Section 486.2 is a marked improvement over the present s.486(2.1), giving children and adolescents the opportunity to testify from behind a screen or via closed circuit television unless this would prejudice the right of the accused to a fair trial. Section 486.2 also extends the range of cases in which a child or other vulnerable person may testify from behind a screen or via closed circuit television. This is an important change, as there have, for example, been cases in which young children have witnessed the murder of a parent but been denied the opportunity to testify from behind a screen or via closed circuit television. Section 486.2 should, however, explicitly provide that the application to use these testimonial aids can be made before trial. Videotapes: The proposed amendments to s. 715.1 extend the range of cases in which use may be made of a videotape of an interview with a child or other vulnerable person.

The Competency Inquiry & the Promise to Tell the Truth: Much of our research over the past few years has dealt with issues related to the competency inquiry and children’s promises to tell the truth. The present law requires children to be put through an intrusive inquiry which is upsetting to children, a waste of court time, and does nothing to promote the search for the truth. Some children who could give honest,

Brief on Bill C-2, Child Witness Project (Bala) March 4, 20052

reliable evidence are precluded from testifying as a result of the present Canadian Evidence Act s. 16, so the present law may result in miscarriages of justice.

The proposed s.16.1 of the Canada Evidence Act is supported by our extensive research, and will very significantly improve the law by: Recognizing that it is not appropriate to make it a requirement of testifying for a child to “correctly”

answer questions about the meaning of such abstract concepts as “oath,” “truth,” “lie,” and “promise.” Recognizing that the ability to meaningfully understand and answer questions about the events in

question should be the only criterion that is used to determine whether a child is competent to testify. Continuing to require children to promise to tell the truth, without requiring them to define the abstract

term “promise.” Clarifying the legal effect of having a child testify after having given a promise to tell the truth.

We continue to have concerns about the drafting of s.16.1 as there is: No specific provision that precludes a judge or counsel from asking a child questions about the

meaning of such concepts as “truth” and “lie” as a condition of being permitted to testify. Given the interpretations of the present law, s. 16.1(7) should be amended to clarify that a child should not 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 is to be received by the court” (added words in bold and italics). There is a concern that without the added words, some judges may believe that questions are not to be asked of children about the meaning of the word “promise,” but children may still be asked questions about the meaning of “truth” and “lie.”

A lack of clarity about whether a child may testify under oath or solemn affirmation. All children under a specified age should be treated in the same way.

No specific provision that requires judges to instruct children about the importance of telling the truth in court. Though most judges will likely do this, it would be useful to state that judges are expected to do this, as is required in the Youth Criminal Justice Act s. 151.

For the purposes of s. 16.1 of the Canada Evidence Act, twelve would be a better age than fourteen for dividing child from adolescent witnesses, for both legal and developmental reasons. For other criminal law purposes related to sexual offending, fourteen (or older) is an appropriate dividing line.

Resources, Training & Research: There have been significant improvements in legislation and in the administration of justice in Canada, providing more recognition of the needs and capacities of children as witnesses, and ultimately affording greater protection to children. However, there remain very significant issues, especially in regard to the implementation of the law, which will require better training and more adequate resources. There is also a need for more applied research to better understand how the law is presently being applied, and how the justice system can be improved.

Brief on Bill C-2: Recognizing the Capacities & Needs ofChildren as Witnesses in Canada’s Criminal Justice System

Submitted by Prof. Nicholas Bala for the Child Witness Project

The Child Witness ProjectWe are an interdisciplinary research team, based primarily at Queen's University. We are engaging in an investigation of issues related to the competence, capacities, credibility and reliability of children to testify in court. We received an initial three years’ funding from the Social Sciences and Humanities Research Council of Canada in 1999, and a second grant for 2002-2005. Our objective is to increase knowledge, and


improve policies and practices for children who testify in the court process. To accomplish these goals, we have formed a multidisciplinary research team with members specialized in law, child psychology, forensic psychology and social work. We hope that our findings will assist in the enactment of better legislation and the development of sounder practices for dealing with child witnesses.

The primary focus of the first stage of our research (1999 - 2002) was an analysis of the procedures used by courts for assessing children's competence to testify under s. 16 of the Canada Evidence Act. Presently we are engaged in a study of a range of issues related to the assessment of the credibility of children in the justice system. We have studied the practices and attitudes of judges and other professionals, identified the psychological assumptions implicit in legal practices, and empirically tested the validity of those procedures and assumptions. Our research methodology has included: review of case law and legislation, analysis of written surveys distributed to judges, lawyers and victim witness workers; testing of children in laboratory settings; and testing the ability of adults, including judges, lawyers and police officers, to accurately determine whether children are telling the truth or lying.

The principal investigator for the Project and the principal drafter of this Brief is Prof. Nicholas Bala. He is a leading Children's and Family Law scholar (resume attached). Over the past few years Prof. Bala and other team members have given a number of presentations to judges, lawyers, police and other professionals based on their research and other work in this field. Prof. Bala has given a number of presentations to judges and lawyers that have included a discussion of the proposed s. 16.1 of the Canada Evidence Act as set out in Bill C-20. Some of the analysis of this provision in this Brief reflects comments and concerns raised by judges and lawyers in these sessions.

One co-investigator, Dr. Rod Lindsay, is an internationally recognized expert in forensic psychology with expertise in issues of eyewitness identification and child witness credibility. Dr. Kang Lee, a psychologist with expertise in child development issues related to truth-telling and lying has also been a co-investigator. The other co-investigator is Dr. Victoria Talwar. Much of the Dr. Talwar’s doctorate in psychology at Queen's was a study of child witness issues; she is now in the Department of Educational & Psychological Counselling at McGill University. Since the inception of this project, we have collaborated with and received advice from Ms. Janet Lee, a court-based victim witness support coordinator with over twenty years of experience in preparing children to testify, including work on the infamous Prescott Ontario child abuse case.

A number of graduate students in psychology and law students have been involved in this project, including: Amy Leach (Ph.D. candidate), Karuna Ramakrishnan (LL.B., 2004), and Joanna Harris (LL.B. Candidate, 2005).

Introduction to Brief on Bill C-2

Until the latter part of the 1980s, a basic premise of the Canadian criminal justice system was that child witnesses are inherently unreliable, and there were no measures to accommodate children when they testified in court. There were legal and practical barriers to children coming to court to testify, and if permitted to testify, their evidence was subjected to special scrutiny. Over the past fifteen years there have been very substantial changes in how children are treated in the criminal justice system. There have been significant legislative and systemic changes to accommodate the needs of children, and there is a growing recognition that children are capable of providing vitally important and accurate testimony in court. A significant vestige of the old approaches remains, however, in the special inquiry that judges are required to conduct under s. 16 of the Canada Evidence Act in order to establish the child’s “competence” to testify in court.


The major focus of the first phase of our research has been in regard to the competence inquiry, children promising to tell the truth, and s. 16 of the Canada Evidence Act, so a major part of this Brief is devoted to that part of Bill C-2 that reforms s. 16 of the Canada Evidence Act. We have also done work on issues related to videotaping of children, use of closed circuit television and screens for child witnesses, involvement of support persons in court proceedings and credibility assessment, and this Brief, following the order that sections appear in Bill C-2, begins with a discussion of those issues.

Victim Support and Child Friendly Courts

While changes in the statutes that govern child abuse and child witnesses have been very important, from the perspective of children in the justice system, the changes in attitudes, knowledge, and resources have probably been more significant. Compared to two decades ago, police, prosecutors and social workers now have much better training and a more victim-oriented approach. The availability and attitudes of these professionals can reduce the stress of the experience of children in the justice system, and make them more effective witnesses.

Increasingly there are victim-witness workers who are assigned to support children (and other vulnerable witnesses) through the unfamiliar and often intimidating justice system, and to help prepare them for testifying. If a child has a supportive experience during the investigation and prosecution of an abuse case, this can contribute to the child's recovery from the trauma of abuse. Conversely a child who has been a victim of abuse may be revictimized by the justice system if the child is not appropriately supported.

Increasingly "child friendly courts" are being established. These courts are designed to address the unique physical needs of child witnesses, with special waiting rooms for children, and good facilities for the use of videotape and closed circuit television. At some "child friendly courts," such as in Toronto, there is a specialized team of victim-witness workers and prosecutors working with the police in a coordinated fashion, and efforts are made to reduce delay. This approach provides appropriate liaisons between the criminal justice system and therapeutic services for children, as well as with the child protection system for cases of intrafamilial abuse.

Too often, however, the justice system remains "unfriendly" to children. There may be a lack of coordination and continuity, with different social workers, police officers and prosecutors involved at different stages, causing confusion and mistrust for the child.1 The child may have to spend hours waiting outside the courtroom in a public area, perhaps waiting in the presence of the accused.

Too often cases are repeatedly adjourned, and children are dragged through the court system for months and even years. In many places there is still a lack of resources and personnel for the support of children involved in the justice system, and some police and prosecutors still have not been adequately trained to work with children in sensitive, effective fashion.

The proposed s 486.1 in Bill C-2 is an important amendment to the present ss. 486(1.2) – (1.4). Section 486.1 extends the range of cases in which a support person can accompany a child or other vulnerable person to the witness stand, and creates a presumption that a child who wants a support person at the witness stand can have one. This is a significant improvement in the law. While a concern for the administration of justice must remain the ultimate test, it would be preferable for s. 486.1(3) to explicitly state that the welfare of the child is to be a factor in deciding whether to make use of this provision. There remain important issues of resources and training to ensure that this provision is properly implemented; while implementation is primarily a provincial/territorial responsibility, federal support is also very important.

1 See e.g. Bala, J. Lee & McNamara, “Children as Witnesses: Understanding their Capacities, Needs and Experiences” (2001) 10 Journal of Social Distress and the Homeless 41.


Screens and Closed Circuit Television

Children often find the experience of seeing the accused in court profoundly distressing, affecting both the child's emotional well-being and the quality of the child's testimony. Legislation enacted in most North American jurisdictions allows a judge to permit a child to testify from behind a screen or from another room via closed circuit television.

However, these provisions are used too infrequently in Canada, and in particular too little use is made of closed circuit television.2 Use of screens is often ineffective. Even if a child cannot see the accused because a screen is used, children often find it difficult to communicate in (what for them) is a very large, strange, and intimidating setting. Further, children may see the accused while entering the witness box, or may see around the screen. Greater use needs to be made of closed circuit television, which removes the child from the courtroom while testifying.

While the limited use of closed circuit television reflects, in part, lack of resources, sensitivity, and training, prosecutors and judges are also constrained by the wording of the present s. 486(2.1) of the Criminal Code.

Some judges are inclined to believe that adolescents are mature and developmentally able to testify in open court; this may be true for some situations, but it is not for sexual abuse cases. When children and adolescents are under the stress of having to recall the abuse in the intimidating court environment, their emotions and behaviour may regress, especially if the case involves intrafamilial abuse or abuse by an adult with a close relationship with the victim. Adolescents can be just as upset as young children when testifying because they have a better understanding of sexual matters and feel more shame, embarrassment and humiliation. Adolescents can be extremely self-conscious, and shy away from being the Acenter of attention,@ especially around strangers and be very worried about how others will view them. Thus, the proposed s. 486.2(1) in Bill C-2 is a welcome improvement in the law, providing that if requested by the Crown prosecutor, a child under the age of 18 “shall” testify from behind a screen or via closed circuit television, “unless the judge … is of the opinion that the order would interfere with the proper administration of justice. “

One of the major problems with the use of screens and close circuit television is that the issue of their use is too often only addressed when the child is about to take the witness stand. At present, the child and professionals are uncertain as to whether the judge will grant the application, and do not have an opportunity to adequately prepare for court. The uncertainty can cause children great anxiety. There needs to be a provision for early application and resolution of the question of whether such devices can be used.

Section 486.2 is a marked improvement over the present s. 486(2.1), giving children and adolescents the opportunity to testify from behind a screen or via closed circuit television unless this would prejudice the right of the accused to a fair trial. Section 486.2 also extends the range of cases in which a child or other vulnerable person may testify from behind a screen or via closed circuit television. This is an important change, as there have been cases in which young children have witnessed the murder of a parent but been denied the opportunity to testify from behind a screen or via closed circuit television. Section 486.2 should, however, explicitly provide that the application to use these testimonial aids can be made before trial; this would allow proper preparations to be made for use of closed circuit television, or if the application is denied, would allow the child to be psychologically prepared for this. There also remain important issues of

2 Bala, Lindsay & McNamara, “Testimonial Aids for Children: The Canadian Experience with Closed Circuit Television, Screens and Videotapes”(2001) 44 Criminal Law Quarterly 461.


resources and training to ensure that this provision is properly implemented; while implementation is primarily a provincial/territorial responsibility, federal support is also very important. Videotaped StatementsLegislation was enacted in Canada in 1988 to allow a court in a child abuse prosecution to admit into evidence a videotape of a statement made by the child to investigators “within a reasonable time” of the alleged offence, provided that the child testifies and “adopts” the contents of the videotape (s. 715.1 of the Criminal Code). This permits a court to have an accurate record of the child's statements, made when the child's memory was relatively fresh and in a relatively non-threatening environment. The use of videotaped statements can be an important device to aid in the search for the truth of the allegations; if the child has been subject to inappropriate suggestive questions by investigators, this may be also be revealed on a videotape.

There is a need for more, better equipment, more training, and protocols to encourage more videotaping by police and social work investigators.

The proposed amendments to s. 715.1 extend the range of cases in which use may be made of a videotape of an interview with a child or other vulnerable person; this is significant, and could, for example, allow a videotape of an interview to be admitted in a murder case, which is not possible at present. This is a significant improvement in the law, though there remain important issues of resources and training to ensure that this provision is properly implemented; while implementation is primarily a provincial/territorial responsibility, federal support is also very important.

There is also a need to study further legislative reform. A number of American states have legislation allowing for the admission of such videotaped pre-trial depositions. The deposition occurs in the presence of prosecution and defence counsel, and the child is subject to cross-examination at that time. This allows for the child to give evidence while the incident is relatively fresh in his or her mind, providing the best evidence to the court. Most significantly the child can testify at a relatively early stage in the process, and then get on with his or her life without being involved in court proceedings that often drag on for months or even years. The child may then have therapy without any argument that this "contaminated" the child's evidence. The accused's right of cross-examination is preserved in the deposition format. Legislation should be enacted in Canada to allow a court to receive a videotape of a pre-trial examination and cross-examination instead of having the child testify in criminal court.

REFORM OF THE COMPETENCY INQUIRY & THE PROMISE TO TELL THE TRUTH

At present, the Canada Evidence Act3 [C.E.A.] s. 16, as interpreted by the courts, requires that before a child can be permitted to testify, the child must be subjected to an inquiry into the child’s understanding of the obligation to tell the truth, the child’s understanding of the concept of promising, and of the child’s ability to communicate. A child’s first minutes in court are filled with the child being asked questions about the meaning of such abstract concepts as “truth,” “lie,” “oath” and “promise” – questions that would sometimes challenge the ability of a well-educated adult to answer.

Psychological research by our team and others has demonstrated that the present Canadian competence inquiry - with its focus on the child’s ability to answer questions about such concepts as “oath,” “truth,” “lie” and “promise” - is fundamentally flawed. A child’s ability to “correctly” answer this type of very abstract question is not related to whether a child will give honest or accurate testimony in court.

3 Canada Evidence Act, R.S.C. 1985, c.C-5, as amended S.C. 1987, c. 24, s. 16.


This Brief summarizes Canadian jurisprudence interpreting the C.E.A. s.16 and concludes with a consideration of the legislative proposals in Bill C-2.4 An earlier version of this proposed reform was introduced in Parliament as Bill C-20 in 2002.5 In the Fall of 2003, we submitted and presented to the House of Commons Committee a Brief on Bill C-20. Reflecting the concerns in our Brief, there were substantial improvements in that Bill as a result of the Committee hearings on Bill C-20. Unfortunately, that Bill made it through the House of Commons, but died on the Senate order paper when the election was called in May 2004. The version of s. 16 of the C.E.A. that is found in the present Bill C-2 has largely dealt with our concerns, and we are generally very supportive of Bill C-2.

The Competency Inquiry in Canada: The present C.E.A. s. 16

Prior to 1893, the law in Canada governing child witnesses was the common law, and children could only testify under oath, which required that they demonstrate an understanding of the religious implications of taking an oath to God to tell the truth. In 1893, Canada enacted its first statutory provisions concerning child witnesses,6 which remained in force until 1988.7 Under that provision a child could give unsworn evidence, provided a judge found that the child “possessed sufficient intelligence” and understood “the duty to speak the truth.” A child’s unsworn evidence was viewed with suspicion, and there was a statutory requirement for corroboration of a child’s unsworn testimony.

The current competency inquiry is governed by s. 16 of the Canada Evidence Act,8 which was enacted in 1988 and stipulates that:

16(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.

(2) A person ... 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 ... who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may testify on promising to tell the truth.

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

Although the competency inquiry is a type of voir dire,9 it is usually conducted in the presence of the jury, and requires the judge to find, on a balance of probabilities, that the child is competent to testify.10 Prior to the 1988 amendments, trial judges took the lead in asking the child questions, and counsel was then given 4 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., First Reading October 8, 2004.5 Bill C-20, An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) and the Canada Evidence Act, 2nd Sess., 37th Parl., 2002, First Reading December 8, 2002, report at Committee stage, November 6, 2003; reintroduced as Bill C-12, 3rd Sess, 37th Parl., Third Reading in House of Commons, May 12, 2004, died on Senate Order Paper when election called for June 2004.6 s. 25 of the Canada Evidence Act of 1893.7 Canada Evidence Act, R.S.C. 1985, c. C-5, s. 16.8 Canada Evidence Act, R.S.C. 1985, c. C-5, as amended S.C. 1987, c. 24, s. 16.9 A voir dire is a hearing within a trial to determine the admissibility of a particular piece of evidence, and is usually conducted without a jury present. 10 R. v. Ferguson (1996), 112 C.C.C. (3d) 342 (B.C.C.A) at 364.


the opportunity to ask further questions. Since the 1988 amendments, however, it has been held that while under s. 16(1) the judge is to “conduct the inquiry,” it is sufficient for the judge to control the process and make the determination of competence to testify and it is not necessary for the judge to ask the questions.11

Judges increasingly appreciate that the counsel who is calling the child as a witness (almost always the Crown Prosecutor) may be a more suitable person to take the lead in questioning the child. Counsel will have met the child before court, and the child will be more familiar with that counsel and more comfortable in answering questions from that person during the invariably stressful and confusing first minutes in the courtroom.12

The purpose of the s.16 inquiry is to assess the child’s response to questions to determine whether the child understands the moral obligation of making an oath or solemn affirmation, as well as whether or not the child is able to communicate the evidence. If the child cannot swear an oath, then the judge will assess whether the child is capable of testifying on a promise to tell the truth and is able to communicate in court, in which case the child will be permitted to give unsworn evidence. The inquiry must be based on the judge’s assessment of the child’s testimony in the competency inquiry. The Supreme Court of Canada has held that the trial judge must not rely on testimony from a parent or from an expert to determine whether or not a child is competent to testify.13

The age and cognitive development of the child usually determine the nature of the inquiry. Typically younger children are subjected to a longer inquiry in comparison to older children, though some effort is generally made to modify the questions and make them age appropriate for younger children. Children are usually prepared for the experience of testifying by the Crown Prosecutor or a victim witness worker so that they know what to expect when appearing in court, and this usually includes preparation for the competency inquiry.14

Sworn Testimony: Present C.E.A. s. 16(2)

To determine whether a child possesses the legal capacity to give sworn testimony, a judge is obliged under s. 16(2) of the Evidence Act to assess whether the child “understands the nature of an oath” (or solemn affirmation.15) Historically, the courts held that in order to testify under oath, children were required to state that they expected “divine sanctions” if they told a lie under oath. It is however, now accepted that the focus of the inquiry about the oath should be on whether the child understands the moral significance of making a commitment to tell the truth, and appreciates the importance of telling the truth in court proceedings.

11 R. v. R.G.F., [1997] A.J. No. 409 (Alta C.A.), at para 24-26.12 R. v. Peterson (1996), 106 C.C.C. (3d) 64, 27 O.R. (3d) 739 (C.A.); leave to appeal to S.C.C. refused [1996] S.C.C.A. no. 202.13 R.v. M.A.M.(2001), 40 C.R. (5th) 66 (B.C.C.A.); see also R. v. Parrott, [2001] 1 S.C.R. 178.

There is also a significant amount of jurisprudence on when a judge may presume that a child is not competent to testify and hence the court should be prepared to accept that it is “necessary” to admit hearsay evidence of the child’s out-of-court statements, provided that they are “reliable.” Absent expert evidence that a child would suffer “emotional trauma or adverse effect” by appearing in court, expert evidence should not be received about the child’s inability to communicate or to promise to tell the truth. Rather the child should come to court to attempt to testify so that the trial judge can personally assess the child’s competence or lack thereof: see R. v. Parrott, [2001] 1 S.C.R. 178. There may, however, be cases where the child is so young (e.g. 2 years of age) that no real purpose would be served by having the child come to court, and an appearance in court is not needed fro the child to be found incompetent: R. v. P. (J.)(1992), 74 C.C.C. (3d) 276 (Que. C.A., aff’d), [1993] 1 S.C.R. 469.14 Bala, K. Lee, Lindsay & Talwar, “A Legal and Psychological Critique of the Present Approach to the Assessment of the Competence of Child Witnesses” (2000) 38 Osgoode Hall L.J. 1.15 In theory, those without religious beliefs relating to an oath or who choose not to testify under oath may solemnly affirm, which has the same legal effect as testimony under oath. Interestingly, it seems that judges rarely if ever ask children to affirm, and there are no reported Canadian cases in which children have been asked questions about their understanding of the solemn affirmations.


A frequently cited formulation of the standard for a child giving sworn evidence was enunciated by Dickson J., sitting ad hoc on the Manitoba Court of Appeal, in 1966 in R. v. Bannerman: 16

The object of the law in requiring an oath is to get at the truth relative to the matters in dispute by getting a hold on the conscience of the witness.

A more recent articulation of this standard was given in 1982 by the Ontario Court of Appeal in R. v. Fletcher where MacKinnon A.C.J.O. stated: 17

The important consideration ….when a judge has to decide whether a child should properly be sworn, is whether the child has sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.

An area of controversy is whether a child should be asked questions regarding the child’s religious education and beliefs. The decision of the Ontario Court of Appeal in R. v. Fletcher clearly indicates that a child should no longer be expected to demonstrate an awareness of God in order to be able to provide sworn testimony to the court. The Court recognized that a decline in religious observance and changes in religious beliefs have given the oath a different significance for many Canadians than it may have had in the past.18 The Court of Appeal stated: 19

as society has changed over the years the oath for many has lost its spiritual and religious significance. Those adults to whom the sanctity of the oath has lost its religious meaning, nonetheless have a sense of moral obligation to tell the truth on taking the oath and feel their conscience bound by it. That is the nature of the oath for many adult witnesses today. Nor do they object on grounds of conscientious scruples to taking the oath. In my view, a child of tender years is in the same position as an adult witness when the determination is being made whether the child understands the nature of an oath.

In a 1999 judgment in the Supreme Court of Canada, McLachlin J. commented on the “absurdity of subjecting children to examination on whether they understood the religious consequences of the oath.”20

Despite these pronouncements of the higher courts, our survey of practice in Canadian courts reveals that it is still a common practice for judges or counsel to ask children questions regarding their religious education and beliefs when determining a child’s moral capacity to testify under oath.21 This questioning is presumably based on the assumption that children with religious training are less likely to lie, or, that only if they demonstrate a belief in God will their oath have a significant impact on the truthfulness of their testimony. While an inquiry into religious beliefs and practices of a child is clearly not necessary or appropriate, it is still not uncommon for children to be asked highly personal questions about religion in the course of the competency inquiry.

16 R. v. Bannerman (1966), 55 W.W.R. 257, at 284 (Man. C.A.)17 (1982), 1 C.C.C. (3d) 370 (Ont. C.A.) at 386, leave to appeal to S.C.C. denied 48 N.R. 319.

18 The Canadian courts have long accepted that witnesses who are not Christians may give an oath on the holy book or a holy symbol of their faith. See e.g. R. v. Lai Ping (1904), 11 B.C.R. 102 (C.A.).19 (1982), 1 C.C.C. (3d) 370 (Ont. C.A.) at 377, leave to appeal to S.C.C. denied 48 N.R. 319. 20 R. v. F.(W.J.) (1999), 27 C.R. (5th) 195, at para 42.21 Bala, K. Lee, Lindsay & Talwar, “A Legal and Psychological Critique of the Present Approach to the Assessment of the Competence of Child Witnesses” (2000) 38 Osgoode Hall L.J. 1 report on a survey of Ontario Court of Justice judges conducted in 1999 in which 86% of judges stated that they regularly a child asked questions about religious beliefs as part of the competency inquiry, including such questions as:•“What would God do if you swear on the Bible to tell the truth and then you lie?”•“Do you know that God knows if you tell me anything but the truth?”•“Do you know what God is?”


Currently, legal capacity to provide sworn testimony is dependent upon the ability of the child to demonstrate an understanding of the nature of an oath or solemn affirmation. This inquiry focuses specifically on whether the child understands the significance of making a commitment to tell the truth in court proceedings.

Unsworn Testimony: Present C.E.A. s. 16(3)

Under the present s. 16(3) of the Canada Evidence Act, if a child is unable to demonstrate an understanding of the nature of an oath or solemn affirmation, the child may be permitted to testify on promising to tell the truth.

In 1988, the statutory requirement for the corroboration of the unsworn testimony was abolished, and there have been decisions which have held that the mere fact that a child testifies on a promise to tell the truth rather than under oath does not mean that her testimony should be afforded less weight.22 A common judicial view, however, is that there continues to be a distinction between sworn and unsworn evidence, and in jury trials it is common for the judge in the charge to the jury to advert to the fact that a child witness has not given sworn testimony,23 though clearly recognizing that such testimony could be sufficient to be the basis of a conviction.

Interestingly, unlike the prior legislation, the provision which was enacted in 1988 does not state that there should be an inquiry into a child’s understanding of such concepts as “truth,” “lie” or “promise,” and it would seem that Parliament, in amending the statute in 1988, did not expect that there would be any inquiry into the child’s understanding of such concepts as “truth” and “lie” as a prerequisite to a child being qualified to give unsworn testimony. However, whether influenced by the pre-1988 statute or by an innate judicial conservatism, s. 16(3) has been interpreted by the courts to require that a child can only give unsworn testimony if the judge has conducted an inquiry to satisfy itself that the promise to tell the truth is to be “meaningful,” requiring the child to demonstrate an understanding of the duty to speak the truth.24 This necessitates questioning to establish an inquiry into the child’s understanding of the nature of a “promise,” and into the child ‘s understanding of the meaning of “truth” and “lie.”25 The interpretation that judges gave to s. 16(3) illustrates the need to have a provision governing competency requirements that is as explicit as possible about Parliament’s expectations.

Justice McLachlin, writing for a majority of the Supreme Court of Canada in R. v. Rockey in 1996 stated:26

Two requirements must be met to establish testimonial competence under s. 16: the ability to communicate the evidence and the ability to promise to tell the truth ... it is not necessary that

22 R. v. McGovern (1993), 82 C.C.C. (3d) 301 (Man C.A.), leave to appeal to S.C.C. refused, 84 C.C.C. (3d) vi. In R. v. Marquard, [1993] 4 S.C.R. 223, at 238-39: “With children as with adults, there can be no fixed and precise formula to be followed in warning a jury about ...problems with a witness’s evidence.”23 See R. v. Demerchant (1991), 66 C.C.C. (3d) 49 (N.B.C.A.) . In G.A. Ferguson & J.C. Bouck, Canadian Criminal Jury Instructions, 3rd ed. (Vancouver, Continuing Legal Education Society of British Columbia, 2002), vol. 1, p. 4-65-2 it is suggested that a judge should charge the jury in the following way:

Despite the fact that [the child witness] did not testify under oath…to tell the truth, you may still accept or reject (his/her) evidence in the same way you accept or reject the evidence of any other witness.

They go on to propose a further “discretionary instruction that may be given in appropriate circumstances” that would summarize the specific concerns about a particular child’s testimony and then conclude that “there is a dangerous risk of relying on (his/her) unsworn evidence standing alone without some other supporting or confirming evidence.” 24 See R. v. McGovern (1993), 82 C.C.C. (3d) 301 (Man C.A.) at 304-5, leave to appeal to S.C.C. refused, 84 C.C.C. (3d) vi; and R. v. Ferguson (1996), 112 C.C.C. (3d) 342 (B.C.C.A)25 R. v. Farley (1995), 23 O.R. (3d) 445 at 453 (Ont. C.A.)26 [1996] 3 S.C.R. 829 at 844-846. Emphasis added


the witness be able to define the word “promise” in some technical sense; what is required is that the witness understand the obligation to tell the truth in giving his or her evidence.

The pre-1988 legislation explicitly required a judge admitting unsworn evidence to be satisfied that the child “understands the duty to speak the truth.” In interpreting this older statute, Robins J.A. in R. v. Khan remarked:27

To satisfy the less stringent standards applicable to unsworn evidence, the child need only understand the duty to speak the truth in terms of ordinary everyday social conduct. This can be demonstrated through a simple line of questioning related to whether the child understands the difference between the truth and a lie, knows that it is wrong to lie, understands the necessity to tell the truth, and promises to do so.

The approach of Justice Robins in Khan is still frequently cited by judges in determining whether a child understands the difference between the truth and a lie, and the importance of keeping a promise to tell the truth.28 Nevertheless, in some cases the courts have imposed a high standard for assessing the competence of young children to testify. In 2001 in R. v. M.A.M.29 the British Columbia Court of Appeal ruled that the trial judge had erred in finding a five-and-a-half year old complainant competent to testify and overturned the conviction that was largely based on her testimony. Justice Rowles wrote:30

In this case, E.T.'s response to the judge's initial question, "What is a promise?", was "What you say and then you have to do it."….The appellant [accused] does not suggest that the complainant's answer was inadequate. What the appellant points to is the further questioning of E.T. which, he submits, demonstrates a lack of understanding of the connection between making a promise to do something and having to do it and making a promise to tell the truth and having to do so in court.

E.T. was questioned on her knowledge of truth and falsehood and the answers to those questions showed that E.T. was capable of distinguishing truth from falsehood. But ….a promise to tell the truth implies not only an understanding of the difference between telling the truth and telling a lie, but also the nature of a promise. I agree with appellant's counsel that a review of the responses E.T. gave to the questions she was asked do not support a conclusion that E.T. understood the moral obligation or duty to tell the truth.

The British Columbia Court of Appeal in R. v. M.A.M. accepted that the child knew the meaning of “truth” and “lie,” but was concerned that this young child could not offer consistent answers about the concept of the “promise,” which is a complex and abstract concept. Accordingly the Court of Appeal overturned the conviction and ordered a new trial, but it was not held as the parents of the young child were unwilling to put her through another trial.

While we would submit that M.A.M. was not correctly decided, even under the present s. 16(3), and that it is not consistent with other precedents,31 the case dramatically and sadly illustrates the need for the reform 27 R. v. Khan, (1988), 27 O.A.C. 142, 42 C.C.C. (3d) 197, at 206; aff’d , quoted with approval by McLachlin J. for the Supreme Court in (1990), 79 C.R. (3d) 1 (S.C.C.) at 7.28 R. v. Farley (1995), 23 O.R. (3d) 445 at 451 (Ont. C.A.), where the Ontario Court of Appeal applied the standard enunciated in Khan in 1988 to the present s.16(3) at 451.29 [2001] B.C.J. 18, 40 C.R. (5th) 66 (B.C.C.A.), per Rowles J.A., Newbury J.A. concurring; Hall J.A. dissenting. Leave to appeal to the S.C.C. was refused May 3, 2001.30 At para 48 & 49.31 Given that the Supreme Court of Canada in R. v. Rockey, [1996] 3 S.C.R. 829 at 844-846 stated that a child should not be expected to offer a definition of a “promise in some technical sense, the decision of the British Columbia Court of Appeal in R. v. M.A.M. adopts a more stringent approach than the present legislation requires, and clearly imposes expectations on five year old children that few, if any, could realistically meet. For a fuller critique of this decision, see Bala, Lee & Lindsay. “ R v. M.(M.A.):


of s. 16. It is totally unrealistic and completely unnecessary to expect a young child to provide a good definition of an abstract and complex concept like a “promise.” Just because a child cannot give a definition of the word “promise” does not mean that the child does not actually understand the concept, let alone that she is less likely to tell the truth.

Ability to Communicate: Present C.E.A. s. 16(3)

The final requirement for competency to testify under the present Canada Evidence Act provision requires that a child, giving either sworn or unsworn testimony, must be “able to communicate the evidence.” The issue of whether the child has the “ability to communicate” is most commonly directly addressed when the court is considering whether the child should be permitted to give unsworn testimony, as a child who can demonstrate an understanding of the oath will invariably demonstrate the ability to communicate.

The Supreme Court of Canada decision in R. v. Marquard32 makes clear that a relatively brief inquiry may satisfy the “ability to communicate” component of the s. 16 inquiry. While the questions asked to test ability to communicate may vary, the goal should be to ascertain that a child has sufficient memory and communication skills to be able to give meaningful answers to the court about past events. In Marquard the Crown had argued that in choosing only the word “communicate,” Parliament intended to exclude the other traditional elements of testimonial “competence,” arguing that a witness’s ability to perceive and to recollect the events did not need to be assessed to determine their competence to testify. The accused argued that Parliament’s intention was to adopt all of the common-law elements of testimonial competence expressed by the words “ability to communicate the evidence,” namely the capability to perceive, recollect and communicate. Justice McLachlin ruled that s.16 was not as limited as the Crown argued, thus incorporating some elements of the common law approach into the legislative scheme:33

... The phrase “communicate the evidence” indicates more than mere verbal ability. The reference to “the evidence” indicates the ability to testify about the matters before the court. It is necessary to explore in a general way whether the witness is capable of perceiving events, remembering events and communicating events to the court. If satisfied that this is the case, the judge may then receive the child’s evidence, upon the child’s promising to tell the truth under s.16(3). It is not necessary to determine in advance that the child perceived and recollects the very events at issue in the trial as a condition of ruling that her evidence be received. That is not required of adult witnesses, and should not be required for children.

In Marquard, the trial judge had initially asked the child, then about five years of age, about the name of the child’s teacher, what she was learning at school, and how she got to school. Defence counsel said he was

Failing to Appreciate the Testimonial Capacity of Children” (2001), 40 C.R. (5th) 93. It is noteworthy that a few months after the decision in R v. M.A.M another panel of the same court took a very different

approach to the competency inquiry and upheld a conviction based on the testimony of a four year old child who had been ruled competent and permitted to testify. In R. v. J.M.B, [2001] B.C.J. 556, (C.A.) the British Columbia Court of Appeal was much more sensitive to the cognitive capacity of a four year old child, and was not unduly concerned about some inconsistencies in the child’s responses to fairly abstract questions. Donald J.A. wrote (at para. 15 ):

the child showed that she felt a moral obligation to tell the truth. She equated a broken promise to tell the truth with a lie and showed a recognition that truth is good and a lie is bad. She gave some inarticulate answers to some of the questions, not surprising with a 4 year old child, but this properly went to the weight of her testimony. The trial judge was in a much better position than we are to assess the complainant's reaction to the questions related to the moral implications of truth and promise-keeping.

The approach of the Court of Appeal in R.v. J.M.B. is more consistent with the weight of judicial authority, and reflects a more realistic understanding of the ability of children to answer abstract questions. See e.g. R. v. Breckenridge, [1997] O.J. .2262 (C.A.), and R. v. Meddoui [1990] A.J. 455 (C.A.), affd. on other grounds [1991] 3 S.C.R. 320.32 R. v. Marquard [1993] 4 S.C.R. 223 (SCC).33 [1993] 4 S.C.R. 223 (S.C.C.) at 236-237.


satisfied that with the questions put. The Crown prosecutor then asked the child a few questions regarding the distinction between a lie and the truth. The transcript continues:34

Q [Judge]: Now…what we're going to do here now is Miss Creal [the Crown Prosecutor] is going to ask you some questions, and you answer them to the best of your knowledge and your memory. Do you know what a memory is? Do you remember things that happened?

A [Child]: No.

Q: You don't? What did you do yesterday?

A: I went down to the donut shop, and I got a drink and bubble gum.

Q: Okay. That's what I am saying is remembering, okay, so when I ask you do you remember what you did yesterday, that was your answer. You went to the donut shop and got a drink and some bubble gum, okay.

A: I mean gum.

Q: Plain gum, okay. Well that's good. It's important to be pretty exact. All right, now, Miss Creal is going to ask you some questions, and I know you know the difference between the truth and a lie, and you answer her questions as truthfully and as best as you can remember, okay?

This excerpt shows that a relatively modest inquiry should satisfy the “ability to communicate” test of s.16. The child could understand and respond to questions about past events in general, and was therefore qualified to testify about the matters at issue without any initial inquiry into her ability to testify about the specific events at issue. This excerpt from the transcript also illustrates how inappropriate it is to ask a young child abstract questions about memory (“Do you know what memory is?” “Do you remember things that happened?”), and how specific concrete questions allow a child to demonstrate the ability to communicate.

Psychological Research on the Competency Inquiry

There is a large body of research which establishes that children as young as four years of age can provide important, reliable evidence about events that they have experienced or observed.35 The focus of discussion here is simply on the research about the competence inquiry. The psychological research that has been conducted by our research team and others raises very serious questions about the present legal requirements for assessing the competency of child witnesses. This research indicates that there is no relationship between children’s performance on the cognitive assessment of their understanding of such concepts as “truth,” “lie,” and “promise” (i.e. their ability to “correctly” answer the types of questions that are asked in a s. 16 inquiry), and their actual behaviour – that is whether they will lie. The research does, however, indicate that there is one important aspect of the present process of qualifying child witnesses that is worth preserving – having the child promise to tell the truth.

34 25 C.R. (4th) 1, at 40.

35 See e.g. Carole Peterson, “Children’s long-term memory for autobiographical events” (2002) 22 Developmental Review 370-402.


In their study of 192 maltreated children, American researchers Lyon and Saywitz36 found that children who had been neglected or abused often showed developmental delays due to the treatment they have suffered. These delays make it more difficult to qualify to testify the very group of children who are most likely to be called as witnesses. Although these children often have seriously delayed vocabulary skills, most maltreated children by age 5 have a basic understanding of the meaning and the immorality of lying. However, the capacity of children to demonstrate their understanding is dependent on the manner in which the children are questioned.

Lyon and Saywitz examined three ways of assessing a child’s understanding of truth and lies. Children were asked to (a) define the terms, (b) explain the difference between them, and (c) identify in different short stories truth and lies.37 The children experienced the greatest difficulty with the “defining” task, as it requires an abstract verbal formulation. Children performed much better on the identification task, in which children could demonstrate their understanding by recognizing examples of truth and lies. In the study 60-70% of the children aged 4 to 7 who clearly understood the difference between truth and lies in the identification task failed to show adequate understanding of the same concepts when asked to define the terms or explain the difference between them. The youngest participants (age 4) in their study were no better than chance at identifying statements that were false (i.e. lies) but were very good at identifying true statements.

Lyon and Saywitz suggest that there was a motivational barrier arising from the way in which the questions were posed that made children reluctant to demonstrate an understanding of lying. In their study (as is often the case in Canadian courts) the questions were phrased in a way that required the child to identify the questioner as the one who has told a lie; children may be reluctant to identify an authority figure as a liar, a morally bad person. These motivational difficulties can be minimized by phrasing recognition questions in such a way that the child does not have to identify the adult questioner as the one who tells a lie, but rather identifies another child in a story as telling a lie.

The Child Witness Project has conducted a number of experiments involving hundreds of children to more directly ascertain whether the present legal test for the assessment of the competence of children has validity for identifying children who are more likely to tell the truth. Our psychological research indicates that there is no relationship between performance on the cognitive assessment of their understanding of such concepts as “truth,” “lie,” and “promise,” and a child’s actual behaviour. However, if children are to asked to promise to tell the truth, this may increase the likelihood that they will tell the truth.

In one of our studies, 38 there were 130 children aged 4 to 7 who had committed a transgression by peeking at a toy while alone in a room, contrary to their instructions. Of these children who peeked at the toy, 74% lied when asked about their transgression. The children were more likely to lie if they were older. 39 Before 36 Lyon and Saywitz, “Young Maltreated Children’s Competence to Take the Oath” (1999), 3 Applied Developmental Science 16 - 27.37 Ibid. at p. 17. See also: S. Ceci, M. Leichtman, & M.W. Putnick, “Cognitive and social factors in early deception” (Hillsdale, NJ: Erlbaum, 1992); S. Ceci, & M. Bruck “Jeopardy in the courtroom” (Washington, DC: APA, 1995); D. Poole, & M. Lamb, “Investigative interviews of children” (Washington: APA, 1998).38 V. Talwar, K. Lee, N. Bala & R. Lindsay. “Children’s Conceptual Knowledge of Lying and its Relation to Their Actual Behaviours: Implications for Court Competence Examinations” (2002) 26 Law and Human Behaviour 4; see also earlier report in Bala, Lee, Lindsay & Talwar, “A Legal and Psychological Critique of the Present Approach to the Assessment of the Competence of Child Witnesses” (2000) 38 Osgoode Hall L.J. 139 There were a total of 158 children in this study. They were all constantly videotaped and monitored, though they were not aware of this. The children were playing a game with the experimenter. The children were asked to identify various familiar toys that they could not see based on the sounds that they made. (e.g. the toy Buzz Light Year could be identified by his familiar refrain: ”To infinity and beyond.”) At one point the children were left alone in the room by the experimenter; before she left the experimenter asked the children not to peek at a “hidden” toy (a Barney doll) that was playing music but could not be identified by the sound. The children were told that they would get a prize if they could guess what the toy was when the experimenter returned, and so there was therefore a strong temptation to “peek.” Out of the 158 children, 130 (82%) peeked. When the experimenter returned, she asked the children if they peeked at the toy. Out of the 130 who peeked, 74% lied by denying that


being asked about their transgression, the children were asked questions about their understanding of the concepts of truth and lying. Even though 87% of the children could identify a lie in a story and 73% said that lying is “bad,” there was no statistically significant relationship between whether the child actually lied and whether they could answer questions identifying a lie and say it was bad. In fact, 72% of the children who lied said that is “bad” to lie. This suggests that truth-telling behaviour is not related to knowing the “correct” answers to questions about truth and lies, nor is truth-telling behaviour related to knowing that lying is “bad.”

In a second study there were 86 children aged 3 to 7 years who had peeked at a toy, contrary to their instructions. Before being asked about their transgression, the children were questioned about truth and lying, and then asked to promise to tell the truth about their transgression (peeking).40 The rate of lying dropped from 74% in the first study to 57% in the study in which children were engaged in a moral discussion and asked to promise to tell the truth - a statistically significant drop. Interestingly, the discussion and promising to tell the truth had the greatest effect of increasing truth telling behaviour with younger children (4-5 years of age), who had the greatest difficulty in “correctly” answering questions about truth and lying.

In the third study in this series, we found that when children who had committed a transgression were simply asked to promise to tell the truth prior to questioning, without any discussion of truth or lie telling, then just over half of the children lied about their behaviour. This is in sharp contrast to the children who were only engaged in a discussion about truth and lie telling but not asked to promise to tell the truth, as 75% of them lied about their behaviour.41 Thus while the act of promising to tell the truth does not eliminate the lying of children, it does appear to significantly reduce the frequency of lying. 42

In similar research conducted in the United States, Lyon & Dorrado conducted a study with 109 maltreated children aged 6 & 7, all of whom had “passed” a competence test. A confederate played with the child and a toy while the experimenter was gone, and then told child: “We might get into trouble if anyone found out.” About 50% of children in a control group who were simply asked about whether they played with the toy told experimenter the truth, but over 80% of children told the truth in a group who were asked to promise to tell the truth and reassured that they would not get into trouble if they did.43

The results of all of this laboratory research are consistent with child development theory, and clearly indicate that the present competency inquiry does not serve the function of helping to exclude from testifying children who are less likely to tell the truth.44 There appears to be no relationship between

they had peeked. In the lying group there was no statistically significant difference in whether the children actually lied based on whether child could identify a lie or say that lying is bad.40 In Study 2 there were 103 children aged 3 - 7 years, of whom 86 (83%), contrary to instructions, peeked at the toy while the experimenter was out of the room.41 In Study 3 there were177 children aged 3-7 years, of whom137 (77%), contrary to instructions peeked at the toy while the experimenter left the room. 42 In another set of studies, we studied whether the fact that a child had engaged in a moral discussion about truth telling and promised to tell the truth made it easier for observers to detect whether children were lying. We found that the fact that a child has engaged in a moral discussion and promised to tell the truth may heighten the child’s awareness of the importance of truth telling, and make them more uncomfortable if they lie, and hence may make it easier to detect if they are lying. This study involved children testifying about their own wrongful acts. Leach, Talwar, K. Lee, Bala, Lindsay “To Catch a Little Liar: Law Enforcement Officials’ and Laypersons’ Ability to Detect Children’s Deception,” 29 Law and Human Behavior (in press, 2005). This finding, however, must be viewed as tentative and more research is needed to confirm this finding, as in another as yet unpublished study, we were not able to repeat this finding. In Talwar, Lee, Bala & Lindsay, “Adults’ Judgments of Child Witness Credibility and Veracity” (2005, submitted to Law and Human Behavior), in a study of 193 adult subjects, there was no statistically significant relationship between the ability of adult observers to correctly detect whether or not children had lied and whether they observed the children being asked questions about truth telling and promising to tell the truth. This study involved children telling truth and fabricated stories about their own lives, such as whether they had attended a wedding.43 Lyon, Saywitz, Kaplan & Dorado, J.S. “Reducing maltreated children's reluctance to answer hypothetical oath-taking competency questions (2001) 25 Law & Human Behavior 81.44 See e.g. K. Lee, “Lying as Doing Deceptive Things with Words: A Speech Act Theoretical Perspective,” in J. W. Astington, ed., Minds in the Making (Oxford, UK: Blackwell Publishers, 2000.).


whether a child can “correctly” answer cognitive questions about truth and lying, and whether a child actually tells the truth. Expecting children to “correctly” answer questions about truth and lying may result in some children being excluded from testifying who may be accurate and truthful witnesses.

While raising serious questions about the present competency process, the research does indicate that requiring a child to promise to tell the truth before testifying can reduce lying among children. The research thus supports having a discussion with children about the importance of truth telling, and having them promise to tell the truth before they testify, but there should be no requirement that the child “correctly” answer any questions as a condition of being permitted to testify.

The research that has been conducted at Queen’s University and elsewhere establishes that:

Children can be as reliable witnesses as adults, and often have essential evidence for the criminal justice process.

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

The making a “promise” to tell the truth by a child (without offering an explanation of what this means), does make it more likely that a child will tell the truth.

Bill C-2: Reforming the Law on the Competence Inquiry

In the fall of 2003, the results of the research of the Child Witness Project were presented to the House of Commons Committee studying the predecessor legislation to Bill C-2 (Bill C-20, not enacted45), and with officials from the Department of Justice. These meetings contributed to a significant changes being made by the House of Commons Committee studying this reform, and the Bill C-2 proposals clearly demonstrate that the Ministry of Justice is aware of the inadequacies in the present competency test of s. 16 of the Canada Evidence Act.

Bill C-2 will amend the present s. 16 and add s. 16.1, so that the provision will reads as follows:

Witness whose capacity is in question

16. (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.

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 the truth

45 Bill C-20, 2nd Sess., 37th Parl., 2002, 1st Reading, December 8, 2002, ss. 25 & 26


(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 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.

Person under fourteen years of age

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

No oath or solemn affirmation

(2) Despite any provision of any Act requiring an oath or a solemn affirmation, a proposed witness under fourteen years of age shall not be required to take an oath or make 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 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.


Under this proposed legislation, s. 16 will govern the admission of testimony by mentally disabled persons, while the new s. 16.1 will govern testimony by children under the age of 14. This proposed legislation will create a presumption that children are capable of testifying. The proposed changes to the competency inquiry reflect the psychological research which demonstrates that the present cognitively based inquiry may exclude children who are in fact competent to give honest, reliable answers to questions. There is no evidence that children who “fail” the present test are less likely to give honest answers. The Canadian proposal is similar to reforms which were introduced in England in 1988.46

Bill C-2 does not provide detailed directions about how a judge is to deal with a child who is called as a witness. It is our view that when the child takes the stand, after initial introductions, the judge or counsel who has called the child should ask the child questions about name, age, school, residence, etc. and then about one or two past events, not related to the matters at issue.47 This initial questioning is intended to allow the court to ascertain whether the child can satisfy the simple test of s. 16.1(5), namely whether the child is “able to understand and respond to questions.” This questioning about non-contentious matters may also help the court to begin to assess the child’s ability to answer questions related to time, numbers etc., and will help the child feel less uncomfortable in court and hence able to be a more effective witness.

The positive features of the proposed s. 16.1 are that it:

Recognizes that it is not appropriate to make it a requirement of testifying for a child to “correctly” answer questions about the meaning of such abstract concepts as “oath,”“truth,” “lie,” and “promise.”

Recognizes that the ability to meaningfully understand and answer questions should be the only criterion that is used to determine whether a child is competent to testify.

Has a specific provision for having children promise to tell the truth (s. 16.1(6)). Even though the child should not to be asked questions about the meaning of the “promise to tell the truth,” if the child is found “able to understand and respond to questions” about past events, the child will invariably have sufficient basic understanding of the concepts involved to give a child some appreciation of the significance of “promising to tell the truth.” The research shows that promising to tell the truth may encourage some children to tell the truth. Asking the child to promise to tell the truth, but not expecting the child to explain the significance of this undertaking is similar to how adults are treated.

Adult witnesses are not asked the meaning of the concept of the “oath,” even though a significant portion of adult witnesses are not be able to give a good definition of this abstract legal concept. For both adults and children, the process of promising or swearing an oath serves to impress on the witness and everyone in the court the solemnity of the occasion. While having a child promise to tell the truth provides no guarantee of the honesty of the witness, it does no harm, and may do some good.

Has a specific provision providing that the evidence of a child based on the promise to tell the truth is to have the same effect as if taken under oath. (s. 16.1(8)) . Some judges presently remind a jury that a child who is testifying on a promise to tell the truth has not given an oath, implying that this evidence might be discounted, even though there is no legislative authority for this practice and no research to support this practice.

However, we have some concerns about the drafting of the proposed s. 16.1 as it is drafted:

46 Criminal Justice Act 1988 (UK), 1988, c. 33, s. 33A, amended Criminal Justice Act 1991 (UK), 1991 c. 53, s. 52, amended Criminal Justice and Public Order Act 1994 (UK), 1994 c. 33, sch. 9, para. 3347 For a discussion of the type of “pre-interview” questioning that should be carried out to allow for the best “interview”, see Schuman, Bala & Lee, “Developmentally Appropriate Questions for Child Witnesses” (1999) 25 Queen’s Law Journal 251; and M.E. Lamb, K.K. Sternberg & P.W. Esplin, “Conducting Investigative Interviews of Alleged Sexual Abuse Victims” (1998) 22 Child Abuse and Neglect 813 at 818-819.


The intent of ss. 16.1(3) and 16.1(7) is that a child should not be asked questions that require the child to demonstrate an understanding of the meaning of such abstract concepts as the meaning of “truth,” “lie” or “promise.” It is, however, submitted s. 16.1(7) may not be not explicit enough. Given the history of the conservative interpretation of the 1988 amendments, s 16.1(7) should explicitly provide that children are not to be expected to demonstrate an understanding of the meaning of the “promise to the tell the truth.” As drafted, some judges may conclude that children are not to be asked the meaning of the term “promise,” but they may still be asked about the meaning of such concepts as “truth” and “lie.”

Lack of clarity about whether a child may testify under oath. While s. 16.1(2) indicates that children shall not be “required” to testify under oath or solemn affirmation, some judges or counsel may decide that a child should be permitted to testify under oath. This might lead to children being asked questions about their understanding of an oath, leading to highly intrusive questions about religious understandings or observance. It would be preferable for all children to be treated in the same way, and simply testifying on a promise to tell the truth.

No specific provision to require judges to instruct children, in appropriate cases, about the importance of telling the truth in court.

The Youth Criminal Justice Act48 s. 151 (a) requires that if a child under twelve is testifying, the judge “shall instruct…the child as to the duty to speak the truth and the consequences of doing so.”

In all proceedings in which a young child is a witness, it would be useful to have the judge instruct the child about importance of telling the truth in court and being as complete as possible. The judge should include a reminder that regardless of what the child may have said about the allegations at previous interviews, what is important is that the child tell the truth in court, not for the child to be consistent with what may have been said during prior investigative interviews

The judge should briefly instruct the child that it is appropriate to ask for clarification or to respond: “I don’t know.”

This type of instruction should both tend to ensure that children understand what is expected and may result in a more complete and accurate testimony from the child.49 With an older child, this will be a relatively brief instruction.

For the purposes of s. 16.1 of the Canada Evidence Act, twelve would be a better age than fourteen for dividing child from adolescent witnesses, for both legal and developmental reasons. For other legal purposes related to sexual offending, fourteen may be an appropriate dividing line. Any age limit in a statute is somewhat arbitrary, but twelve may be a better age than fourteen for the purpose of testifying under oath or affirmation. When the rules about children testifying were first developed in the eighteenth century, and the age of fourteen was chosen, this was the age which for many purposes adulthood commenced (for example full criminal accountability), and there was no real legal or social recognition of adolescence.

Today, the legal significance of twelve is that from that age a youth could be prosecuted for perjury, which should be reflected in the way that they are qualified to testify. Further, developmentally by the age of twelve most children are in adolescence, and starting intermediate or middle school, cognitively ready for understanding and taking an oath. Under the present legal regime, very few

48 S.C. 2002, c. 1. 49 There is some research that supports the practice of having a more “extended pre-questioning discussion” with a child witness about the importance of truth telling and of being as complete as possible in telling their stories as a way of encouraging a more accurate and complete account from the child: see e.g. Huffman, Warren & Larson, “Discussing Truth and Lies in interviews with Children: Whether, Why and How?” (1999) 3 Applied Developmental Science 1.


children age twelve or older are not qualified to testify under oath. There are of course other legal purposes for which fourteen and eighteen are appropriate for age limits for extending special protections to children and youth.

Summary: The Competency Inquiry & the Promise to Tell the Truth

At present s. 16 of the Canada Evidence Act requires children to be put through an intrusive inquiry which is upsetting to children, a waste of court time, and does nothing to promote the search for the truth. Indeed, some children who could give honest, reliable evidence are precluded from testifying, so the present law may contribute to miscarriages of justice.

The proposed s.16.1 of the Canada Evidence Act is supported by extensive psychological research, and will very significantly improve the law by: Recognizing that it is not appropriate to make it a requirement of testifying for a child to

“correctly” answer questions about the meaning of such abstract concepts as “oath,” “truth,” “lie,” and “promise.”

Recognizing that the ability to meaningfully understand and answer questions should be the only criterion that is used to determine whether a child is competent to testify.

Continuing to require children to promise to tell the truth, without requiring them to define the abstract term “promise.”

Clarifying the legal effect of having a child testify after having given a promise to tell the truth.

We continue to have significant concerns about the drafting of s.16.1 as there is:

No specific provision that precludes a judge or counsel from asking a child questions about the meaning of the concepts as “truth” and “lie” as a condition of being permitted to testify. Given the interpretations of the previous law, s. 16.1(7) should be amended to clarify that a child should not 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 is to be received by the court.” (added words in italics and underlined). There is a concern that without the added words, some judges may interpret this so that questions are not to be asked about the meaning of the word “promise,” but they can still be asked questions about the meaning of “truth” and “lie.”

A lack of clarity about whether a child may testify under oath or solemn affirmation. All children under a specified age should be treated in the same way.

No specific provision that requires judges to instruct children about the importance of telling the truth in court, as is done in the Youth Criminal Justice Act s. 151.

Although we hope that judges will deal appropriately with these issues using their judicial discretion, it would be much preferable to have these issues clearly and directly addressed, to ensure a uniform and appropriate approach.

Twelve would be a better age than fourteen for dividing child from adolescent witnesses, for both legal and developmental reasons, though for other purposes related to sexual offending fourteen or older may be an appropriate dividing line.

Conclusion: Further Reforms, Resources and Research


There have been very substantial improvements over the past fifteen years in how the Canadian justice system treats children. There are now significant provisions in the law to accommodate the needs of child witnesses and it is recognized that children can provide reliable evidence that may be critical to the outcome of a case. There are, however, still badly needed reforms. Bill C-2 proposes some important changes in the law, and will help children and other vulnerable persons to come to court to testify. In this Brief we identified some specific concerns, but we are broadly supportive of the proposed changes in the law.

This Brief has particularly focussed on the competence inquiry and s. 16 of the Canada Evidence Act. The process for the qualification of children to testify has not changed much since late in the nineteenth century, and there is a clear need for reform. Psychological research reveals that the present competency inquiry in Canada, with its focus on ascertaining whether the child can answer questions that demonstrate an understanding of abstract concepts such as “truth,” “lie” and “promise,” results in the exclusion of some children who are fully capable of giving reliable testimony, and does not result in the exclusion of children who are less likely to tell the truth. Further, even if a child is permitted to testify, the child’s initial period in court is taken up with questions that are often confusing, including questions that are intrusive or embarrassing questions about religious beliefs and practices, and this upsetting process may make it more difficult for children to be effective witnesses.

The enactment of Bill C-2 will be an important improvement that should result in a more concrete and useful competence inquiry, and will allow some children who testify who are presently precluded from doing so because they are unable, at the start of their testimony, to correctly answer abstract questions unrelated to the matters at issue. Implementation of these reforms should result in significant changes in the way in which child witnesses are treated in their first minutes in court, and should result in trials that are more just. As we discuss in this brief, however, there should be a number of amendments before Bill C-20 is enacted.

There have been significant improvements in legislation and in the administration of justice in Canada, providing more recognition of the needs and capacities of children as witness, and ultimately affording greater protection to children. However, there remain very significant issues, especially in regard to the implementation of the law, and such issues as providing adequate resources and training. There is also a need for more applied research to better understand how the law is presently being applied, and how the justice system can be improved.

There are also other areas in which there remains a need for legislative reform. For example, the legal rules governing the admission of a child's out-of-court hearsay statements in court have been significantly expanded by judicially developed doctrine and, in a number of American states, by statutory reforms. Typically statements are now admitted if a judge considers them to be "reliable" and the court rules that this is Anecessary@ to do so.50 However, some judges still take a narrow view of the "necessity" requirement for the admission of hearsay statements, especially if the child is able to communicate even minimally in court. As a result, the court may not hear evidence of the child's initial often graphic disclosures of abuse and the jury is left to hear only the statements that the child is able to make in court, months and even years after the events in question. Whether or not the child testifies, there should not be a need to meet the "necessity" criteria before a court admits a child's hearsay statement. Given the difficulty that children have in communicating in judicial proceedings, especially about often traumatic events that may have occurred a significant time before the proceedings, the admission of reliable hearsay will facilitate the search for the truth. Canada should follow the lead of many American states by enacting legislation to provide that in abuse cases involving child victims under the age of 12, hearsay statements are admissible if they are “reliable.”

The criminal justice system is not only concerned about ascertaining the truth but also about fairness and protection of the constitutional rights of the accused. In most democracies there is a burden on the state to

50 R. v. Khan (1990), 79 C.R. (3d) 1 (S.C.C.).


prove the guilt of an accused beyond a reasonable doubt, and one must accept that there will be some true allegations of child abuse that cannot be proven in court. Further while most disclosures of child abuse are true, there are also a relatively small number of unfounded allegations; a child may be mistaken about what occurred or may have identified the wrong perpetrator, or a child may have been induced by inappropriate questioning into making a false allegation, or rarely, a child may fabricate allegations.

The role of the justice system, starting with the police investigation and ending in court, is to balance the rights of the accused with the desire to ascertain the truth. Historically the justice system was premised on erroneous beliefs about the inherent unreliability of children, and contributed to the widespread abuse and exploitation of children. The justice system is slowly changing, and now has a better understanding of children as witnesses. Legal changes have both reflected and contributed to better understanding of child abuse. Society now has a better understanding of the nature and effects of child abuse, and deals more effectively with this devastating problem. We must, however, continue to reform the justice system to find a better balance between the rights of the accused and the interests of children and society. Too often, child victims are still denied justice and society is denied protection from perpetrators of abuse.

Bill C-2 has important provisions that will significantly enhance the ability of child victims and witnesses to testify in the criminal justice system. Subject to the relatively small amendments we propose in this Brief, we strongly support Bill C-2 and we urge speedy passage of this Bill in order to help ensure justice for Canada’s children. If the portions of the Bill that deal with child pornography are too contentious, they might be severed from this Bill. Controversy over one small portion of the Bill should not delay enactment of important reforms that will increase the protections afforded Canada’s children. Parliament must demonstrate leadership in its commitment to children and ensure that this law is enacted.


NICHOLAS CHARLES MATTHEW BALAProfessor of Law, Queen’s University

Major Area of Teaching & Research Interest: Family & Children's Law. Also teaches Contracts. Winner of Queen's Law Students' Society Award for teaching excellence, 1993 & 1998. Associate Dean, Faculty of Law, Queen’s University: 1994-98 & 2004-05.

Education: B.A. University of Toronto (1974); LL.B. Queen's (1977); LL.M. Harvard (1980)

Professional: Member of Faculty of Law, Queen's University since 1980. Visiting professor at McGill (1982), Duke Law School(1985) and University of Calgary (1989). Consultant to federal, territorial and provincial governments and aboriginal organizations in Canada on issues related to child abuse and child witnesses, juvenile justice, domestic violence, child custody and access, and child support. Frequent presenter at continuing education programs for judges, lawyers, physicians, mental health professionals, police, probation officers, social workers and teachers.

Canadian Research Institute for Law & the Family at the University of Calgary, Board member, 1996-present (Executive Committee, 1998-present).

Member of Child Witness Curriculum Committee of the National Judicial Institute, and lead author of Child Witness Electronic Bench-book (materials available to judges on intranet.)

Principal Investigator for Child Witness Project at Queen’s University. An interdisciplinary research project on issues related to competence, reliability and credibility of child witnesses, and their experiences in court. Funding support from Social Sciences & Humanities Research Council, Principal Investigator 1999-2002 and 2002-2005. Co-investigators are Prof Rod Lindsay of Queen’s Psychology and Prof. Victoria Talwar, Education & Psychological Counselling Dept., McGill University, collaborators Prof. Kang Lee, Psychology Department, University of San Diego, & Ms. Janet Lee, Director of Kingston Victim Witness Program. Publications include: 12 books; over 90 book chapters and articles in journals in law, psychology, criminology and medicine; and over 35 reports for governments and foundations on a range of topics in Family and Children’s Law. This work is regularly cited by the courts, including decisions of the Supreme Court of Canada on child witness issues, youth justice and other issues related to Family and Children’s Law.

Witness at Parliamentary Committees dealing with issues related to Family and Children’s Law on 18 occasions, including making presentations at Committee hearings in 1986, 1993 and 2003 on legislative reforms related to child abuse and child witnesses.

Presentations and publications related to child witnesses include:- Bala et al., Review of the Ontario Child Abuse Register, research for Ontario Ministry of

Community & Social Services, carried out through Social Program Evaluation Group, Queen's University (released January 1988). (Also translated into French.) (168 pages)

- Bala, Towards a National Strategy for Combating Child Sexual Abuse, for Special Advisor to the Minister of Health & Welfare Canada, 1989 (44 pages).

- Bala, "Double Victims: Child Sexual Abuse and the Criminal Justice System" (1990) 15 Queen's Law Journal 3-32.

- Bala, Harvey & McCormack, The Prosecution of Sexual Offences Against Children and Bill C-15: A Case Law Research Project, Department of Justice Canada Ottawa, 1993.

- Bala, “False Memory ‘Syndrome’: Backlash or Bona Fide Defence” (1996) 21 Queen’s Law Journal 423-456.

- Schuman, Bala & Lee, “Developmentally Appropriate Questions for Child Witnesses” (1999) 25 Queen’s Law Journal 251 - 302

- Szabo, Hornick, Paetsch, Coleman, Woronka, O’Sullivan, Bala, Bertrand & Craig, An Investigative Guide for Sexual Offences, 2nd edition, Royal Canadian Mounted Police, 2000.


- Bala & Schuman, “Allegations of Sexual Abuse When Parents Have Separated” (1999) 17 Can. Fam. L.Q. 191- 241.

- Bala, “Child Witnesses in the Canadian Criminal Justice System: Recognizing Their Needs & Capacities” (1999) 5 (2) Psychology, Public Policy and the Law 323-354.

- Bala, Lindsay &. McNamara, “Testimonial Aids for Children: The Canadian Experience with Closed Circuit Television, Screens and Videotapes”(2001) 44 Criminal Law Quarterly 461- 486.

- Bala, Paetsch, Trocme, Schuman, Tanchak & Hornick, Allegations of Child Abuse in the Context of Parental Separation: A Discussion Paper, Department of Justice Canada, Research Report, 2001-FCY-4E, 2001.

- Fagnan & Bala, Canadian Judges’ Handbook on Child Witnesses (Edmonton, Alta: Alberta Court of Queen’s Bench, December, 2003) (Under the Direction of Justices Cooke & Trussler).

- Bala, Lee & McNamara, “Children as Witnesses: Understanding their Capacities, Needs and Experiences” (2001) 10 Journal of Social Distress and the Homeless 41 - 68.

- Vogl & Bala, Testifying on Behalf of Children: A Handbook for Canadian Professionals(Toronto: Thompson Educational Publishers, 2001).

- Bala, Lee, Lindsay & Talwar, “A Legal & Psychological Critique of the Present Approach to the Assessment of the Competence of Child Witnesses” (2000) 38(3) Osgoode Hall L. J. 409 -452.

- Talwar, Lee, Bala and Lindsay, "Children's Conceptual Knowledge of Lying and its Relation to their Actual Behaviors: Implications for the Court Competence Examination" (2002) 26 Law and Human Behavior 395-416.

- Talwar, Lee, Bala & Lindsay, “Children’s Lying to Conceal a Parent’s Transgression: Legal Implications” (2004) 28 Law and Human Behavior 411- 436.

- Trocme & Bala, “False Allegations of Abuse When Parents Separate: Canadian Incidence Study of Reported Child Abuse and Neglect,” Child Abuse & Neglect (in press, 2005).

- Leach, Talwar, Lee, Bala & Lindsay, “To Catch a Liar: Detecting Children’s Deception,” 29 Law and Human Behavior (in press, 2005).

- Bala, Lindsay, Lee, Ramakrishnan, “Judicial Assessment of the Credibility of Child Witnesses,” 42:4 Alberta Law Review (in press, 2005).

Prof. Bala and his colleagues have presented have frequently presented on child witness issues at academic conferences and at professional education programs, including at the following Judicial Education Programs:


Profs. Bala & Lee at Nova Scotia Provincial Court education program, May 2002. Prof. Bala at National Judicial Institute, program on Criminal Law, Quebec City, March

2003. Prof. Bala at Nova Scotia Supreme Court education program, Halifax, May 2003. Prof. Bala at Ontario Superior Court education program, Elora, Ont., June 2003. Prof. Bala at Ontario Court of Justice education program, Muskoka, Ont., October 2003

Feb 2005

Documents

Brief on Bill C-2