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REPORT ON CHILD WITNESSES ONTARIO LAW REFORM COMMISSION ^j fTTBr 1991 The Ontario Law Reform Commission was established by the Ontario Law Reform Commission Act for the purpose of reforming the law, legal procedures, and legal institutions. Commissioners Rosalie S. Abella, BA, LLB, Chair Richard E.B. Simeon, PhD, Vice Chair A Earl Cherniak, QC, BA, LLB John D. McCamus, MA, LLM A Margaret Ross, BA (Hon), LLB Counsel Larry M. Fox, LLB, Senior Counsel BA LLM J. Jody Morrison, (Hon), Ronda F. Bessner, BA (Hon), BCL, LLB, LLM Christine B. Henderson, BA, LLB Lisa Brownstone, BA, LLM Mordechai Ben-Dat, BA, LLB Chief Administrator Mary Lasica The Commission's office is located on the Eleventh Floor at 720 Bay M5G Street, Toronto, Ontario, Canada, 2K1. Telephone (416) 326-4200. FAX (416) 326-4693. ISBN 0-7729-8710-6 TABLE OF CONTENTS Page Letter of Transmittal vi Preface vii Introduction 1 Chapter 1 Psychological Studies on the Reliability of Children's Testimony 7 1. Introduction 7 2. The Memory of Children 8 3. Are Children Capable of Distinguishing Fact from Fantasy? 12 4. The Trustworthiness of Children 13 5. The Suggestibility of Children 14 6. Important Issues in Child Development Relevant to the Testimonial Abilities of Children 17 7. Conclusion 17 Chapter 2 Competency Rules for Child Witnesses 19 1. Introduction 19 2. Competency Requirements for Child Witnesses in Ontario Civil Proceedings 20 (a) Sworn Testimony 21 (b) Unsworn Testimony 27 3. The 1988 Amendments to the Canada Evidence Act 29 4. Reform of the Child Competency Rules in Ontario 34 (a) Should the Oath be Retained as a Test of Competency? 34 . (b) The Presumption that Children are Incompetent Witnesses 38 [iii] IV (c) The Distinction Between Sworn and Unsworn Testimony for Child Witnesses 39 (d) Competency Examinations for Child Witnesses 40 (e) The Corroboration Requirement for the Unsworn Testimony of a Child 42 Chapter 3 The Kendall Rule 44 Chapter 4 The Applicability of the Hearsay Rule to the Statements of Children 49 1. Introduction 49 2. The General Inapplicability of the Hearsay Exceptions to the Statements of Children 52 (a) Party Admissions 53 (b) Statements of Physical, Mental or Emotional State 53 (c) Spontaneous Declarations or Excited Utterances 54 3. TheAres v. Venner Approach 57 4. Liberalization of the Hearsay Rute in Child Protection Proceedings in Ontario 61 (a) The Common Law 61 (b) Statutory Exceptions: The Child and Family ServicesAct 63 . 5. Reform of the Hearsay Rule in Other Jurisdictions 65 6. Recommendation 68 Chapter 5 Accommodation of Child Witnesses 70 1. Introduction 70 2. Screens 72 3. Closed-circuit Television 78 4. Videotaped Interviews and Videotaped Testimony 83 (a) Videotaped Interviews 83 (b) Videotaped Testimony SS (c) Recommendation 90 5. The Role of Judges 91 6. Support Persons 92 7. Conclusion 93 CONCLUSION 94 SUMMARY OF RECOMMENDATIONS 96 Ontario Law Reform Commission Ontario To The Honourable Howard Hampton Attorney General for Ontario Dear Attorney General: We have the honour to submit ourReport on Child Witnesses. Rosalie S. Abella Chair Richard E. B. Simeon Earl A. Cherniak Vice Chair Commissioner A John D. McCamus Margaret Ross Commissioner Commissioner July 2, 1991 [vi] PREFACE The Commission'sReport on Child Witnesses was initiated in June 1990. Ronda Bessner, Counsel at the Commission, conducted the research and wrote the report An Advisory Board was established by the Commission, composed of individuals from various disciplines and organizations. The Commission would like to express its deep appreciation to the members of the Board, who made a significant contribution to the reforms proposed by the Commission: Hugh Atwood, Office of the Official Guardian; Nicolas Bala, Queen's University Law School; Judith Beaman, from the law firm of Dunbar, Sachs, Appell; Joan Belford, Children's Services Branch, Ministry ofCommunityand SocialServices; MarvinBernstein, Catholic Children'sAid & Society; Kerry Evans, from the law firm ofZwicker, Evans Lewis; Shelley Hallett, Court Reform Task Force, Ministry ofthe Attorney General; Susan & Himel, Support Custody Enforcement Branch, Ministry of the Attorney General; Heather Katarynych, Children's Aid Society of Metropolitan Toronto; Susan Lee, Provincial Coordinator, Victim/Witness Services, Ministry of the Attorney General; Myra Lefkowitz, Metropolitan Toronto Special Committee on Child Abuse; Dr. Sol Levine, SunnybrookHospital; Michael Martin, Assistant Crown Attorney, Regional Municipality of Peel, Ministry ofthe Attorney General; Chris McGoey, Assistant Crown Attorney, Victim/Witness Services, Ministry of the Attorney General; Cindy Merkley, Coordinator,Aftermath: Self-Help forFamilies ofSexuallyAbused Children; & Dr. Marcellina Mian, Suspected Child Abuse Neglect Program, Hospital for Sick Children; Judge Peter Nasmith, Ontario Court, Provincial Division; John Pepper, Crown Attorneys Office, Ministry of the Attorney General; Dr. Louise Sas, Principal Investigator, London Family Court Clinic Inc.; Patricia Sibbald, Institute for the Prevention of Child Abuse; Ann Marie Wicksted, Barrie District Rape Crisis Line; and Robin Vogl, Barrister and Solicitor. In addition, the Commission advertised for submissions. The Commission would like to thank the organizations and individuals who responded to the issues discussed in the advertisements. Finally, the Commission would like to express its appreciation to Dr. Louise Sas who reviewed the chapter on the psychologicalstudies on the reliability of children's testimony and to Chris McGoey who throughoutthe project, participated in numerous discussions and provided the Commission with valuable material on child witnesses. [vii] Digitized by the Internet Archive in 2011 with funding from Osgoode Hall Law School and Law Commission of Ontario http://www.archive.org/details/reportonchildwitOOonta