R. v. Marquard

R. v. Marquard
Collection
Supreme Court Judgments
Date
1993-10-21
Report
[1993] 4 SCR 223
Case number
22940
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Evidence
Notes
SCC Case Information: 22940
Decision Content
R. v. Marquard, [1993] 4 S.C.R. 223
Debra Marquard Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Marquard
File No.: 22940.
1993: April 29; 1993: October 21.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Evidence ‑‑ Expert evidence ‑‑ Child testifying about aggravated assault ‑‑ Expert witnesses called to corroborate Crown and defence versions of events ‑‑ Expert testifying as to whether child telling the truth and as to the psychological effects of abuse ‑‑ Level of competence to be established in inquiry as to child's communication skills under s. 16(1) (b) of the Canada Evidence Act ‑‑ Whether trial judge's warning as to the frailty of child's evidence adequate ‑‑ Whether opinion evidence outside the area of expertise of qualified experts admissible ‑‑ Whether expert's commenting on a child's credibility appropriate ‑‑ Nature of questioning expert witnesses ‑‑ Criminal Code, R.S.C. 1970, c. C-34, s. 245.2(1) ‑‑ Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 16(1) (b), (3) .
Appellant was charged with the aggravated assault (under s. 245.2(1), now s. 268(1), of the Criminal Code ) of her 3½-year-old granddaughter. At trial, which was held 17 months after the incident, the Crown alleged that appellant had put the child's face against a hot stove door in order to discipline her. The child's unsworn testimony was that her "Nanna" had put her in (or on) the stove. Appellant and her husband both testified that they discovered the child early in the morning, screaming, after she had burned herself trying to light a cigarette with a butane lighter.
Both the Crown and defence called a number of expert witnesses to corroborate their versions of the events. The expert evidence related to the functioning of butane lighters, the nature of the burn, whether the child was telling the truth at the trial, and the psychological effects of abuse. The trial judge admitted, and did not instruct the jury to disregard, evidence of expert witnesses who had gone beyond the area of expertise as qualified. Further, she invited the jury to place weight on these opinions, stating that opinions outside the expertise of the witnesses were to be weighed along with all the other evidence. Defence counsel did not object to the witnesses' giving evidence in these areas. However, he strenuously objected to the judge's charging the jury that they could rely on the opinions outside the stated areas of expertise. The jury found appellant guilty and the judge sentenced her to five years' imprisonment. The Ontario Court of Appeal upheld the conviction but reduced the sentence of imprisonment.
At issue here were: the level of competence that had to be established in an inquiry under s. 16(1) (b) of the Canada Evidence Act with respect to a child's communication skills, the adequacy of the trial judge's warning as to the frailty of the child's evidence, the admissibility of opinion evidence outside the area of expertise of qualified experts, the appropriateness of an expert's commenting on a child's credibility and the nature of questioning expert witnesses.
Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed.
Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: Testimonial competence is not presumed in the case of a child testifying under s. 16 of the Canada Evidence Act . The child is placed in the same position as an adult whose competence has been challenged. At common law, such a challenge required the judge to inquire into the competence of the witness to testify. Testimonial competence comprehends: (1) the capacity to observe (including interpretation); (2) the capacity to recollect; and (3) the capacity to communicate. The goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable. The enquiry is into capacity to perceive, recollect and communicate, not whether the witness actually perceived, recollects and can communicate about the events in question. The test is not based on presumptions of the incompetency of children to be witnesses and is not intended to make it difficult for children to testify. It merely outlines the basic abilities that individuals need to possess if they are to testify.
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 under s. 16(3) , after the child has promised to tell the truth. 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 his or her evidence be received. That is not required of adult witnesses, and should not be required for children.
The examination conducted in this case was sufficient to permit the trial judge to conclude that the child was capable of perceiving, remembering and recounting events to the court. This in turn permitted the trial judge to receive her evidence, upon the child's promise to tell the truth. What the child actually perceived and recollected of the events in question was a matter for the jury to determine after listening to her evidence in chief and in cross‑examination. A trial judge's discretion in determining that a child is competent to testify should not be interfered with unless manifestly abused.
With children, as with adults, there can be no fixed and precise formula to be followed in warning a jury about potential problems with a witness's evidence. Negative stereotypes should not be applied to the evidence of children. The trier of fact must nevertheless be cognizant of the weaknesses of a particular piece of evidence. Here, the child's evidence required a warning from the trial judge as to the risks of accepting it. The trial judge fairly pointed out the problems of her testimony to the jury and adequately cautioned them.
The only requirement for the admission of expert opinion is that the expert witness possess special knowledge and experience going beyond that of the trier of fact. Deficiencies in the expertise go to weight, not admissibility. Here, the witnesses were qualified more narrowly than their areas of expertise, or in one case, not formally qualified at all. The proper practice is for counsel presenting an expert witness to qualify the expert in all the areas in which the expert is to give opinion evidence. If this is done, no question as to the admissibility of their opinions arises.
Important as the initial qualification of an expert witness may be, it would be overly technical to reject expert evidence simply because the witness ventures an opinion beyond the area of expertise in which he or she has been qualified. As a practical matter, it is for opposing counsel to object if the witness goes beyond the proper limits of his or her expertise. The objection to the witness's expertise may be made at the stage of initial qualification, or during the witness's evidence if it becomes apparent that the witness is going beyond the area in which he or she was qualified to give expert opinion. In the absence of objection, a technical failure to qualify a witness who clearly has expertise in the area will not mean that the witness's evidence should be struck. However, if the witness is not shown to have possessed expertise to testify in the area, his or her evidence must be disregarded and the jury so instructed. Allowing the jury to consider the experts' evidence did not constitute an error of law because all of them clearly possessed expertise sufficient to permit them to testify as they did.
The evidence that the child's maturity in dealing with her injury suggested long-term abuse was only tangentially relevant and its probative value of the issues at trial was low. On the other hand, it was potentially very prejudicial, because it implied that the child was the victim of long‑term abuse, a proposition wholly unsupported by the evidence. Its prejudicial effect clearly outweighed any probative value it might have had on the issues the Crown had placed before the jury. This evidence accordingly should not have been admitted.
The judge's direction on the expert evidence may have misled the jury into believing that this evidence, which was of little or no probative weight, was a definitive expert opinion that the child was indeed abused and that her passivity was a key and highly probative factor supporting that conclusion. The reception of this evidence, coupled with the trial judge's direction on it, warranted a new trial being ordered.
The ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion. A judge or jury which simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty‑bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve their difficulties.
While expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact. This is particularly the case with evidence of children. Had the expert here restricted her comments to explaining why children may lie to hospital staff about the cause of their injuries, there could have been no objection to her evidence.
The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if he or she knows the work. If the answer is "no", or if the witness denies the work's authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is "yes", and the witness acknowledges the work's authority, then the witness has confirmed it by the witness's own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case.
Per La Forest and Gonthier JJ.: The reasons of McLachlin J. were agreed with, subject however to the comments of L'Heureux‑Dubé J. pertaining to s. 16 of the Canada Evidence Act which were adopted.
Per L'Heureux‑Dubé J. (dissenting): Section 16 of the Canada Evidence Act must be interpreted against a backdrop of reform, increased awareness of the value and reliability of children's evidence and the general trends in evidence law. Although the need for corroboration has been repealed, an inquiry into the testimonial competence of children is still required. Previously courts were required to determine if the child was possessed of "sufficient intelligence" to testify, whereas they now must assess whether the child is able to "communicate the evidence". The amendment is of no great significance. In fact, even under the previous provisions, there was no requirement that the trial judge assess a child's powers of perception and recollection independently of, or in addition to, the child's ability to respond to questions. Parliament would have used much clearer language had it intended to return to the common law test which applied before the enactment of the previous s. 16 of the Act.
The common law rules rest on the presumption that the evidence of certain classes of witnesses is inherently unreliable. To require an inquiry into perception and recollection under s. 16 of the Act implicitly imports the presumption of unreliability back into children's evidence ‑‑ the very notion Parliament revoked in its reforms to s. 16 .
Under s. 16, once the child's ability to communicate (understood as the ability to respond to questions) has been established, any limitations due to deficiencies in recollection or perception go to weight rather than admissibility. The basic ability of a child to recollect past events may often be apparent from the inquiry into the child's ability to communicate in any event. The adequacy of a child's powers of perception and recollection, even if set at a low threshold, may be assessed differently by different judges. Limiting the inquiry to the ability to understand and respond to questions, as s. 16 of the Act prescribes, has the virtues of simplicity and ease of determination. This, in turn, will ensure consistency and predictability with regard to the admission of evidence of both children and the mentally challenged. The rest may be left to the trier of fact.
Section 16 governs the reception of evidence of persons besides children, such as the mentally challenged, whose competence to testify is questioned. Notwithstanding obvious limitations to the powers of perception and recollection among some persons whose competence is challenged, the witness may indeed have something very useful to disclose about the events at issue. Handicapped persons, for example, suffer from a very high incidence of abuse and to exclude their evidence could often render prosecution impossible with the consequence that abusers could continue to prey on such victims without fear of being called to account for their actions. Courts must refrain from interpreting statutory provision in a manner that imposes additional barriers to the reception of such evidence which is precisely what the Act aims to prevent.
The charge to the jury was adequately crafted to warn the jury of the frailties of the child's testimony and the danger of convicting on that basis alone.
The function of an expert is to assist the trier of fact in drawing inferences about matters which lie beyond common experience. In the present case, each of the doctors whose evidence was challenged was engaged in medical work which allowed them to form clinical opinions which could be of use to the jury. Their evidence fell well within the criteria for the reception of expert evidence.
The fact that no long-term abuse was alleged does not transform expert evidence on the characteristics of abused children into evidence of an accused's character. The presence of abuse on that one occasion was the central issue of this case. The question was whether the abuse occurred at all, not how many times or over what period of time. On this basis, the relevance of expert testimony about child abuse was clearly established. The defence made no objection to the introduction of this evidence but actively participated in exploring it.
The information from the expert, tendered for the larger purpose of assisting the jury in understanding why a child might react in a certain way if he or she were abused, did not cross the boundary of permissible expert opinion and usurp the jury's function in determining the child's credibility. It was an error to instruct the jury that it was the expert's opinion that the child was an abused child, since the expert did not in fact make such a statement. This error must be considered in light of the entire charge to the jury and the specific direction the trial judge gave to the jury not to decide the case in terms of child abuse but to focus on the assault under consideration. Considering the totality of the charge to the jury, the jury cannot have been mistaken about the nature of the issue before them or their responsibility as triers of fact for the ultimate decision about the credibility of the witnesses in the case.
A learned treatise must first be adopted by the expert as authoritative if it is to be read in to the body of evidence during cross-examination. By contrast, learned treatises may be put to considerably broader use in many U.S. jurisdictions. Under the U.S. Federal Rules of Evidence, learned material can be read into evidence as long as it is called to the attention of the expert on cross-examination and its authoritativeness is reliably established. The American approach was favoured because it prevented a witness from foreclosing an inquiry into the depth or breadth of his or her knowledge by simply refusing to acknowledge a study. The expert here was unaware of the studies cited by the Crown and could not adopt them as authoritative. The appellant could not complain that the cross‑examination of her own expert was prejudicial simply because the Crown may have been successful in circumscribing the limits of his knowledge which thereby rendered his testimony less effective.
Cases Cited
By McLachlin J.
Referred to: R. v. Bannerman (1966), 48 C.R. 110, aff'd [1966] S.C.R. v; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. K. (V.) (1991), 4 C.R. (4th) 338; R. v. Béland, [1987] 2 S.C.R. 398; R. v. Millar (1989), 49 C.C.C. (3d) 193; R. v. B. (G.), [1990] 2 S.C.R. 3, aff'g (1988), 65 Sask. R. 134; R. v. Anderson (1914), 22 C.C.C. 455; Holland v. Prince Edward Island School Board Regional Administrative Unit #4 (1986), 59 Nfld. & P.E.I.R. 6; Cansulex Ltd. v. Reed Stenhouse Ltd. (1986), 70 B.C.L.R. 189; R. v. B. (K.G.), [1993] 1 S.C.R. 740.
By L'Heureux‑Dubé J. (dissenting)
R. v. Khan, [1990] 2 S.C.R. 531, aff'g (1991), 42 C.C.C. (3d) 197; R. v. B. (G.), [1990] 2 S.C.R. 3; R. v. W. (R.), [1992] 2 S.C.R. 122; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. B. (G.), [1990] 2 S.C.R. 30, aff'g (1988), 65 Sask. R. 134 (C.A.); R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Béland, [1987] 2 S.C.R. 398; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. Taylor (1986), 18 O.A.C. 219; R. v. J. (F.E.) (1990), 74 C.R. (3d) 269; R. v. Beliveau (1986), 30 C.C.C. (3d) 193; R. v. Anderson (1914), 22 C.C.C. 455.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C-34, s. 245.2(1) [am. 1980-81-82-83, c. 125, s. 19] (now R.S.C., 1985, c. C‑46, s. 268(1) ).
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 16(1), (2).
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 16(1) (a), (b), (2) , (3) , (4) , (5) [rep. & sub. R.S.C., 1985 (3rd Supp), c. 19, s. 18].
U.S. Federal Rules of Evidence, Rules 601, 803(18).
Authors Cited
Bala, Nicholas. "Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System". In W. S. Tarnopolsky, J. Whitman and M. Ouellette, eds., Discrimination in the Law and the Administration of Justice. Montréal: Éditions Thémis, 1993, 231.
Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children: Report of the Committee on Sexual Offences Against Children and Youths (the "Badgley Report"), vol. 1. Ottawa: Minister of Supply and Services Canada, 1984.
Delisle, R. J. "D. (L.E.): Obscuring Similar Fact Evidence" (1989), 71 C.R. (3d) 22.
Goldman, Calvin S. "The Use of Learned Treatises in Canadian and United States Litigation" (1974), 24 U.T.L.J. 423.
McCormick, Charles Tilford. McCormick on Evidence, vols. 1 and 2, 4th ed. J. W. Strong, ed. St. Paul, Minn.: West Publishing Co., 1992.
Mewett, Alan W. "Credibility and Consistency" (1991), 33 Crim. L.Q. 385.
Robb, James C. and Lynda J. Kordyban. "The Child Witness: Reconciling the Irreconcilable" (1989), 27 Alta. L. Rev. 327.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
Spencer, John R., and Rhona H. Flin. The Evidence of Children: The Law and the Psychology. London: Blackstone Press, 1990.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 6. Revised by James H. Chadbourn. Boston: Little, Brown and Co., 1976.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 2. Revised by James H. Chadbourn. Boston: Little, Brown and Co., 1979.
APPEAL from a judgment of the Ontario Court of Appeal (1991), 14 W.C.B. (2d) 49, dismissing an appeal from sentence and varying the sentence following conviction by Gotlib Dist. Ct. J. sitting with jury (1990), 9 W.C.B. (2d) 684. Appeal allowed, L'Heureux‑Dubé J. dissenting.
Marlys Edwardh and Shaun Nakatsuru, for the appellant.
Catherine A. Cooper and Susan Chapman, for the respondent.
The judgment of Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
McLachlin J. -- In the early morning hours of June 4, 1988, Debbie‑Ann LeBlanc, aged 3½ years, suffered a severe facial burn. From her birth until the time of her injury, Debbie‑Ann had lived with her grandmother, the appellant, Mrs. Marquard. The appellant had legal custody of Debbie‑Ann with the consent of Debbie‑Ann's mother.
The appellant was charged with aggravated assault of her granddaughter contrary to s. 245.2(1) of the Criminal Code, R.S.C. 1970, c. C‑34, am. S.C. 1980‑81‑82‑83, c. 125, s. 19 (now R.S.C., 1985, c. C‑46, s. 268(1) ). At trial, 17 months after the incident, the Crown alleged that Mrs. Marquard had put the child's face against a hot stove door in order to discipline her. The oven door was hot, it was suggested, because Mrs. Marquard had forgotten to turn the oven off before going to bed the night before because she had been drinking. The child, unsworn, testified: "My nanna put me on the stove".
Mrs. Marquard and her husband both testified about how they discovered that Debbie‑Ann had been burned. There were only slight differences between the accounts they gave at trial. They testified that they had been awakened at 6:30 a.m. by the child screaming for her "nanna". They ran to the living room where they found the child kneeling in front of a couch with her face down. Mrs. Marquard detected the smell of burned hair and skin. There was also smoke about the ceiling. A butane cigarette lighter lay beside the child on the couch. Mr. Marquard stated that he noticed that the cigarette was charred and that there appeared to be moisture on the filter end, as if the cigarette had been in someone's mouth. The testimony of Mr. and Mrs. Marquard diverged with respect to who had reached the child first and how they noticed the child's burn. Mrs. Marquard said she had reached Debbie‑Ann first and when she patted the child's head, a clump of hair fell away. Mr. Marquard said he had been the first to reach the child, and when he picked her up, he saw a clump of her hair on the couch. He realized the child was burned after Mrs. Marquard brushed off the side of Debbie‑Ann's face. Mrs. Marquard testified that, after they had discovered the child's burn, she said, "my God, baby girl, what did you do?" The child responded, "nanna, I tried to light a cigarette". At this point, they wrapped her and took her to Wellesley Hospital. Mr. and Mrs. Marquard testified that Mrs. Marquard had a loving and caring relationship with Debbie‑Ann and that the child had never been physically disciplined.
The trial was by judge and jury. In addition to the evidence recounted above, the Crown called a number of expert witnesses to corroborate its version of the events as did the defence. The expert evidence related to the functioning of butane lighters, the nature of the burn, whether the child was telling the truth at the trial, and the psychological effects of abuse. At the end of the evidence, the addresses of counsel and the judge's charge, the jury returned a verdict of guilty after deliberating for two days. The judge sentenced Mrs. Marquard to five years' imprisonment. The Ontario Court of Appeal upheld the conviction but reduced the sentence of imprisonment to two years' less a day and added a three‑year probationary period to her sentence. The court stated:
The appellant has raised a number of issues both as to the admission of evidence and the charge to the jury. As to the evidentiary issues, having regard to the manner in which the trial was conducted by the defence we cannot give affect [sic] to these objections now. As to the charge to the jury, we think the trial judge left the issues fairly to the jury, there may be some imperfections in the charge but we are not persuaded that there was any error that would cause us to doubt that this verdict of the jury should stand.
Before this Court, Mrs. Marquard argued that the trial was unfair on a number of grounds. She asked that her conviction be quashed and an acquittal entered, or alternatively, that a new trial be directed.
I have concluded that while a number of the matters complained of by the appellant do not constitute errors, the cumulative effect of the errors which were committed in the course of the trial mandates that a new trial be directed. I will deal with each allegation of error in turn.
1.The Inquiry Under s. 16(1)(b) of the Canada Evidence Act
The appellant, Mrs. Marquard, submits that the trial judge erred in failing to conduct an adequate inquiry into whether the complainant could rationally communicate evidence about the injury. The trial judge questioned Debbie‑Ann on her schooling and on her appreciation of the duty to tell the truth. Several times the child reiterated that "You have to tell the truth". Asked whether it was important or unimportant to tell the truth, she responded that it was important. At the end of the questioning, the judge asked defence counsel whether she had omitted any questions. He replied, "I can't say that there's anything I think Your Honour has omitted." In further questioning by Crown counsel, Debbie‑Ann demonstrated that she knew the difference between the truth and a lie. The judge indicated that while she did not believe the child capable of understanding an oath, her unsworn evidence should be accepted. Some further questioning on remembering took place, and Debbie‑Ann told the judge that yesterday "I went down to the donut shop, and I got a drink and bubble gum." After promising to tell the truth, the child's evidence was taken.
The trial judge was proceeding under s. 16(1) (b) of the Canada Evidence Act, R.S.C., 1985, c. C-5, s. 16(1) [rep. & sub. R.S.C., 1985 (3rd Supp.), c. 19, s. 18], which provides:
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
...
(b) whether the person is able to communicate the evidence.
The appellant's argument turns on the meaning of the phrase "conduct an inquiry to determine ... whether the person is able to communicate the evidence." She contends that it is not enough to explore the child's ability to understand the truth and communicate. The judge must, in her submission, be satisfied that the child is competent to testify about the events at issue in the trial. To this end, the trial judge must test the child's ability to perceive and interpret the events in question at the time they took place as well as the child's ability to recollect accurately and communicate them at trial. All the latter, she submits, are embraced by the phrase "able to communicate the evidence" in s. 16 of the Act.
The Crown, on the other hand, takes the position that Parliament, in choosing the infinitive "to communicate", evinced the intention to exclude all other aspects of testimonial competence. The ability of the witness to perceive and interpret the events at the time they occurred and the ability of the witness to recollect them at the time of trial are not part of the test. The only requirement is that the child be able to "communicate" the evidence.
It seems to me that the proper interpretation of s. 16 lies between these two extremes. In the case of a child testifying under s. 16 of the Canada Evidence Act testimonial competence is not presumed. The child is placed in the same position as an adult whose competence has been challenged. At common law, such a challenge required the judge to inquire into the competence of the witness to testify.
Testimonial competence comprehends: (1) the capacity to observe (including interpretation); (2) the capacity to recollect; and (3) the capacity to communicate: McCormick on Evidence (4th ed. 1992), vol. 1, at pp. 242‑48; Wigmore on Evidence (Chadbourn revision 1979), vol. 2, at pp. 636‑38. The judge must satisfy him- or herself that the witness possesses these capacities. Is the witness capable of observing what was happening? Is he or she capable of remembering what he or she observes? Can he or she communicate what he or she remembers? The goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable. The enquiry is into capacity to perceive, recollect and communicate, not whether the witness actually perceived, recollects and can communicate about the events in question. Generally speaking, the best gauge of capacity is the witness's performance at the time of trial. The procedure at common law has generally been to allow a witness who demonstrates capacity to testify at trial to testify. Defects in ability to perceive or recollect the particular events at issue are left to be explored in the course of giving the evidence, notably by cross‑examination.
I see no indication in the wording of s. 16 that Parliament intended to revise this time‑honoured process. 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 the child's evidence be received. That is not required of adult witnesses, and should not be required for children.
My colleague, Justice L'Heureux‑Dubé, contends that the standard I have outlined is one which is inconsistent (at pp. 255-56) with "the trend to do away with presumptions of unreliability and to expand the admissibility of children's evidence and may, in fact, subvert the purpose of legislative reform in this area." I disagree. The test I have expounded is not based on presumptions about the incompetency of children to be witnesses nor is it intended as a test which would make it difficult for children to testify. Rather, the test outlines the basic abilities that individuals need to possess if they are to testify. The threshold is not a high one. What is required is the basic ability to perceive, remember and communicate. This established, deficiencies of perception, recollection of the events at issue may be dealt with as matters going to the weight of the evidence.
The examination conducted in this case was sufficient to permit the trial judge to conclude that Debbie‑Ann was capable of perceiving events, remembering events and recounting events to the court. This in turn permitted the trial judge to receive her evidence, upon Debbie‑Ann's promise to tell the truth. What Debbie‑Ann actually perceived and recollected of the events in question was a matter for the jury to determine after listening to her evidence in chief and in cross‑examination.
I would add this. It has repeatedly been held that a large measure of deference is to be accorded to the trial judge's assessment of a child's capacity to testify. Meticulous second‑guessing on appeal is to be eschewed. As Dickson J. (as he then was) put it (at p. 135) in the oft‑cited case of R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), aff'd [1966] S.C.R. v, a trial judge's discretion in determining that a child is competent to testify "unless manifestly abused, should not be interfered with."
I conclude that the trial judge did not err in the inquiry she conducted under s. 16(1) (b) of the Canada Evidence Act or in receiving the evidence of the child.
2.Charge to the Jury on the Child's Evidence
The appellant submits that the trial judge failed to warn the jury adequately about frailties in the child's evidence. In particular, she alleges that the warning given by the trial judge failed to assist the jury in properly assessing the child's evidence, and that the charge on the confirmatory evidence was unhelpful, confusing and prejudicial to the appellant. The Crown submits that the trial judge's charge was more than adequate and in some respects unduly favourable to the defence.
With children as with adults, there can be no fixed and precise formula to be followed in warning a jury about potential problems with a witness's evidence: Vetrovec v. The Queen, [1982] 1 S.C.R. 811. As Dickson J. (as he then was) stated in that case, at p. 831:
Because of the infinite range of circumstance which will arise in the criminal trial process it is not sensible to attempt to compress into a rule, a formula, or a direction the concept of the need for prudent scrutiny of the testimony of any witness. What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risks of adopting without more, the evidence of the witness. There is no magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support. The idea implied in those words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. [Emphasis added.]
In R. v. W. (R.), [1992] 2 S.C.R. 122, this Court warned against applying negative stereotypes to the evidence of children. At the same time, it emphasized at p. 134 that the trier of fact must be cognizant of the weaknesses of a particular piece of evidence:
Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes [in the way the courts look at evidence of children] do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
In the same spirit, the Court of Appeal of British Columbia in R. v. K. (V.) (1991), 4 C.R. (4th) 338, at p. 350, recognized that there are some cases of child witnesses "where the failure or refusal of the trial judge to exercise the discretion to give such a caution will raise the spectre of an injustice and may, therefore, result in reversible error." Wood J.A. continued, at pp. 350‑51:
As was pointed out by Dickson J. in Vetrovec, supra, there is an infinite range of circumstances that can arise in the criminal trial process, and it would not only be impossible, it would be self‑defeating, to attempt any precise guidelines for the exercise of the discretion in favour of giving the caution.
...
The focus of the new discretion, which has replaced the old common law rules of practice, is the potential for the witness' evidence to be unreliable. No automatic assumptions of unreliability arise because of age, or the nature of the complaint. There must be an evidentiary basis upon which it would be reasonable to infer that the witness' evidence is, or may be, unreliable.
These then are the applicable principles. The questions they pose are, first, whether in the case under appeal the child's evidence required a warning from the trial judge as to the risks of accepting it, and if so, whether the trial judge gave the necessary warning.
I am satisfied that the evidence of the child required a warning from the trial judge as to the risks of accepting it. The child was very young. She was unable to give much detail about the incident. And she had told a different story at an earlier time.
I am also satisfied that the trial judge fairly pointed out these problems to the jury. One of the last things she said to them before they began their deliberations was this:
You will understand that as a matter of common sense that to convict on the unconfirmed and unsworn evidence of a child witness is fraught with dangers and in that you must use your common sense and all the evidence before you. She has not been sworn. She has promised to tell the truth. I found that she was intelligent enough to answer the questions on a promise to tell the truth.
Earlier the trial judge had pointed out particular deficiencies in the child's evidence. She spoke about the fact that the child had earlier told a different story. She said:
You heard evidence, too, of the prior contradictory statement by the child, Debbie‑Ann LeBlanc that in hospital she gave to Dr. Mian, an explanation which, to encapsulate, was effectively "I was trying to light a cigarette and I burned myself," and then in Court, she said, "nanna put me in the stove." The fact that a witness has on a prior occasion made a statement or statements that are contradictory to her evidence at this trial goes to the credibility or the truthfulness of a witness. The testimony of a witness may be discredited in whole or in part by showing that she previously made a statement which is inconsistent with her present testimony.... You are the sole judges as to whether there has been a contradiction of an earlier statement by the witness and the effect, if any, of such contradiction on the witness' credibility.
The trial judge directed the jury to the difficulty defence counsel had in getting responsive answers on cross‑examination:
There was some particular difficulty counsel for the defence had in examining the child, Debbie‑Ann LeBlanc. You will recollect that when he attempted to examine her in cross‑examination, virtually all of his questions were answered, "I don't know", or "maybe", or "I don't remember", and eventually, I think, there was nothing else he could do but give up on that cross‑examination.
The trial judge also pointed out to the jury that there was "very little embellishment" by the child of the statement "nanna put me in the stove."
The trial judge explained the fact that while technical corroboration of a child's evidence was not required, the jury might consider whether other evidence in fact corroborated her testimony and explained the requirements of corroborative evidence. She concluded with this caution:
Before leaving the evidence of the child, I should say that just because you find that her evidence has been corroborated by some other material evidence, that does not mean that you must accept the evidence of the child in whole or in part or that you must convict the accused.
Finally, the trial judge repeatedly warned the jury that the child had not been sworn, but was testifying under a promise to tell the truth. She stated: "It is for you to decide ... what weight is to be given to the child's promise to tell the truth."
In my view, these cautions adequately warned the jury of the risks associated with accepting the child's ev