Young children are often involved in legal proceedings in health law whether it be civil or criminal matters. They can be parties to the proceedings or simply be a witness. The problem with young children as witnesses is the reliability of their evidence. They also cannot be cross-examined as effectively as an adult witness. As a result, it is not uncommon for their competency as witnesses to be challenged by the opposing party. Their evidence may be crucial to the outcome. How then do the courts deal with such challenges and when and how does a court allow young children to give their evidence?

Federal and provincial evidence legislation presumes the competency of all witnesses but allows for challenges for witnesses under the age of 14. It is important to note that age in itself is not a barrier. A child as young as 4 and a 1/2 has been allowed to testify. Neither act makes any distinction based on age other than the 14 years of age boundary. This makes sense as it would otherwise effectively eliminate the ability to rectify harms or offences to the very young.

Sworn and Under Oath

The sworn evidence of a child requires that they understand the nature of an oath. This is a matter of ensuring that the child has demonstrated that their conscience has been reached. They must appreciate the significance of testifying in court under oath. There is however likely no requirement that the child has a religious understanding of the oath since the decision of the Manitoba Court of Appeal (MCA) in R. v. Bannerman which was affirmed by the Supreme Court of Canada (SCC).

The Canada Evidence Act (the “federal Act“) at section 16 (3), allows for the sworn evidence of a witness under 14 years of age where they are found to be able to communicate their evidence and where they understand the nature of an oath. A child under 14 is presumed to have the capacity to testify, but if they are challenged they may still give their evidence if the court is satisfied that they are able to understand and respond to questions.

The Evidence Act of Ontario (the “provincial Act“), at section 18, states that a person of any age is presumed to be competent to give evidence.  The provincial Act also deals specifically with witnesses under the age of 14 in section 18.1. It allows for the sworn evidence of such a witness where the court is satisfied that they can communicate their evidence and that they understand the nature of an oath or solemn affirmation.

Unsworn Evidence

Under both acts, the unsworn evidence of a child is admitted under a less strict standard. They need only understand the duty to speak the truth in terms of everyday social conduct. As the Supreme Court of Canada (SCC) stated in R. v. Khan:

This can be demonstrated through a simple line of questioning directed to whether the child understands the difference between the truth and a lie, understands the necessity to tell the truth, and promises to do so.

The federal Act, at section 18, allows for the admission into evidence of the unsworn testimony of a child of tender years where the child is found to not understand the nature of an oath. The evidence can be received without an oath if the child is found to have sufficient intelligence to justify its reception and the child is found to understand the duty of speaking the truth. However, sub-section (2) makes it clear that no case can be decided on such evidence alone and it must, therefore, be corroborated by some other material evidence.

In Ontario, the competency of any witness may be challenged and likely would in the case of witnesses who were of tender years. If they are found to be incompetent to testify, there is a further discretion given the court to admit their evidence if the child is able to communicate their evidence even where they are found not to understand the nature of an oath or what it means to tell the truth. The provincial Act makes it clear that such evidence does not need to be corroborated as required by the federal Act.

Hearsay Statements

What if the child is not competent to testify, period? What of statements they may have made to others, most likely their parents? Such statements would normally be hearsay and be inadmissible.

This issue came before the SCC in R.v. Khan:

The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations.  While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law.  This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions.

In Khan, it was common ground that the child’s hearsay statement could not be heard from the mother because it did not fit within any of the then established exceptions to the rule. The SCC reviewed the principles used in Ares v. Venner and stated:

[ The ] four tests may be resumed in two general requirements: necessity and reliability.  The child’s statement to the mother, in this case, meets both these general requirements as well as the more specific tests.  Necessity was present, other evidence of the event, as the trial judge found, is inadmissible.  The situation was one where, to borrow Lord Pearce’s phrase, it was difficult to obtain other evidence.  The evidence also bore strong indicia of reliability.  T. was disinterested, in the sense that her declaration was not made in favour of her interest.  She made the declaration before any suggestion of litigation.  And beyond doubt, she possessed peculiar means of knowledge of the event of which she told her mother.  Moreover, the evidence of a child of tender years on such matters may bear its own special stamp of reliability.

As a result, the SCC found that in cases of sexual abuse against children, further latitude should be exercised by the court in admitting such evidence. A new trial was ordered following the ruling.

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