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Brief on Bill C-2

Brief on Bill C-2

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Published by Omar Ha-Redeye
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
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

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Published by: Omar Ha-Redeye on Feb 13, 2012
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March 4, 2005
Brief on Bill C-2:
Recognizing the Capacities & Needs of Children as Witnesses in Canada’s Criminal JusticeSystemSubmitted toHouse of Commons Committee on Justice, Human Rights, Public Safety & EmergencyPreparednessTo be presented, March 24, 2005, OttawabyChild Witness Project at Queen's UniversityPrincipal Investigator: Prof. Nicholas BalaFaculty of LawQueen’s University
Kingston, Ontario Tel 613-533-6000 ext. 74275Fax. 613-533-6509Email: bala@post.queensu.ca
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, McGillUniversityDr. 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 AttorneyGeneral), Kingston, OntarioMs. Amy Leach, doctoral candidate, Psychology Department, Queen'sUniversity
Ms. Karuna Ramakrishnan, LL.B. graduate 2004, Queen’s University(presently articling student, MAG)Ms. Joanna Harris, LL.B. candidate 2005, Queen’s UniversityMuch of the research that is referred to in this Brief was carried out by theChild Witness Project at Queen’s University. Funding support for the ChildWitness Project has been provided by the Social Sciences and HumanitiesResearch Council of Canada. The views expressed here are those of theProject members, not those of Queen’s University, the Ministry of theAttorney General or the Council. The Projects website ishttp://law.queensu.ca/faculty/bala/witness/witness.htm
We are an interdisciplinary research team based primarily at Queen’sUniversity, studying issues related to the competence, reliability andcredibility of child witnesses. The principal investigator of the Project andprincipal drafter of this brief is Prof. Bala, a Law Professor whose main areaof 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 thetestimony 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 focussedour research. However, Prof. Bala is willing to answer questions at theCommittee Hearing on other aspects of the Bill. The research that has been conducted at Queen’s University and elsewhereestablishes that:
Children can be as reliable witnesses as adults, and often haveessential evidence for the criminal justice process.
There is no relationship between children’s ability to answerquestions about such abstract concepts as “truth” and “lie,” andwhether they will actually tell the truth or lie.
If a child promises to tell the truth, the child is more likely to tellthe truth, even if the child cannot give a definition of themeaning of a “promise.”
The closed circuit television, screen and videotape provisions of the
Criminal Code
have facilitated the giving evidence by childrenin 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 BillC-2 (Bill C-20). That Brief focused on the reform of the provisions of the
Canada Evidence Act 
s. 16 dealing with the competency inquiryfor child witnesses. Our Brief was influential and there weresubstantial improvements in that Bill as a result of the Committeehearings. Unfortunately, that Bill died on the Senate order paperwhen the election was called in 2004.
Brief on Bill C-2, Child Witness Project (Bala)March 4, 20052
Bill C-2 has important provisions that will significantly enhance theability of child victims and witnesses to testify in the criminal justicesystem. While we propose some relatively minor amendments, wegenerally support Bill C-2, and urge its speedy passage to helpensure justice for Canada’s children. If the portions of the Bill thatdeal with child pornography are too contentious, they might besevered from this Bill. Controversy over one relatively small portionof the Bill should not delay enactment of important reforms that willincrease the protections afforded Canada’s children. Parliamentmust demonstrate leadership in its commitment to children andensure that this law is enacted.Support Persons:
Section 486.1 creates a presumption that a child whowants a support person while testifying can have that person close by. This isa 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 indeciding whether to make use of this provision.
Closed Circuit Television and Screens:
Section 486.2 is a markedimprovement over the present s.486(2.1), giving children and adolescentsthe opportunity to testify from behind a screen or via closed circuit televisionunless this would prejudice the right of the accused to a fair trial. Section486.2 also extends the range of cases in which a child or other vulnerableperson may testify from behind a screen or via closed circuit television. Thisis an important change, as there have, for example, been cases in whichyoung children have witnessed the murder of a parent but been denied theopportunity to testify from behind a screen or via closed circuit television.Section 486.2 should, however, explicitly provide that the application to usethese testimonial aids can be made before trial.
 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 childor other vulnerable person.
The Competency Inquiry & the Promise to Tell the Truth:
Much of ourresearch over the past few years has dealt with issues related to thecompetency inquiry and children’s promises to tell the truth. The presentlaw requires children to be put through an intrusive inquiry which isupsetting to children, a waste of court time, and does nothing to promote thesearch for the truth. Some children who could give honest, reliable evidenceare 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 ourextensive 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.”
Brief on Bill C-2, Child Witness Project (Bala)March 4, 20053

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