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Evidence - Child Witnesses. R. v. Zhou
In R. v. Zhou (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the convictions were for "sexual assault and forcible confinement."
Here the appellant/defendant was self-presenting, and 's.486.3' ['Accused not to cross-examine witness under 18'] counsel was appointed "to cross-examine the complainant":[2] The appellant represented himself at trial. Court appointed amicus participated throughout the trial and separate counsel was appointed to cross-examine the complainant pursuant to s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46 (“s.486 Counsel”). A different lawyer acted as amicus on appeal. . R. v. B.W.
In R. v. B.W. (Ont CA, 2024) the Ontario Court of Appeal cited a leading case on child testimony:[46] I see no error in the trial judge’s approach to S.’s evidence on the number of incidents. Her approach is consistent with direction from the Supreme Court of Canada on how trial judges should assess the evidence of young children. In R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55, the court stated that courts should take a “common sense” approach when dealing with the evidence of young children. The court further said that “[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it”: B.(G.), at p. 55.
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[54] In my view, the trial judge’s failure to directly address S.’s seemingly contradictory evidence about penetration was not a reversible error. Trial judges are not required to address all aspects of the evidence or all arguments advanced by an accused: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-18, 32, and 64; R. v. A.B., 2023 ONCA 254, at para. 16. The trial judge did not rely on the evidence of penetration in her findings of guilt. As reviewed above, she carefully reviewed S.’s evidence, including her evidence of many of the different sexual acts the appellant performed on her, and explained why she found this evidence credible. Further, as held by this court in R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 42, “[f]laws, such as contradictions, in the testimony of a child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult”. . R. v. P.B.
In R. v. P.B. (Ont CA, 2023) the Court of Appeal considered treatment of an adult's evidence where they were children when the events occured:[6] In reviewing the evidence, the judge began by directing himself on the legal principles informing his assessment of the evidence. This included the guidance in R. v. A.M., 2014 ONCA 769, at para. 11, with respect to the assessment of the testimony of adult witnesses who were children at the time of the events described. He correctly noted that, although he was to assess the complainants’ credibility according to the criteria applicable to adult witnesses, “inconsistencies, especially on peripheral matters, should be considered in the context of their ages at the time of the alleged events”.
[7] The trial judge canvassed K.B.’s evidence at length. He explained why he accepted her evidence as fundamentally reliable and credible. He accepted that she had been sexually assaulted on the four occasions she described but had reasonable doubt that she clearly remembered that P.B. was the assailant in the first two incidents. He had no such doubt regarding the third and fourth incident. The judge specifically considered K.B.’s statement to the police that, when she woke up after the fourth incident, she thought she was dreaming, and she went to the bathroom “to make sure I wasn’t dreaming it”. The judge noted that, at trial, K.B. consistently denied that the assault was a dream. He accepted the Crown’s argument that, when K.B. referred to “dreaming” in her police statements, she was alluding to the surreal nature of the event. Finally, he dealt with K.B.’s admission that she spoke to the other two complainants about the events giving rise to the charges and explained why he did not find that the evidence about these conversations did not give rise to reasonable doubt.
[8] As this court stated in R. v. A.M., at para. 13, inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. . R. v. M.O.
In R. v. M.O. (Ont CA, 2023) the Court of Appeal considered the use of CCC 715.1 ['Video-recorded Evidence'] child evidence:[2] The complainant’s evidence in chief was made through a statement entered, pursuant to s. 715.1 of the Criminal Code. The appellant asserts that the trial judge gave undue weight to the statement. She did so, according to the appellant, because she had a flawed understanding of the Supreme Court of Canada’s decision in R. v. F. (C.C.) 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183.
[3] In F. (C.C.), Cory J. said, at para. 19: “It follows that the videotape which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial.”
[4] The trial judge repeated this “more accurate” reference in her reasons. The appellant says that this demonstrates that the trial judge was giving undue weight to the complainant’s statement and that she did not evaluate the complainant’s evidence in the context of the evidence as a whole.
[5] We do not agree. The statement of Cory J. must be understood as having been made in the context of explaining the purpose behind s. 715.1. It was not intended to suggest that a videotaped statement of this type was entitled to more weight than other evidence. Indeed, Cory J. made the point, at para. 46, that the overall determination of the reliability of the statement is up to the trier of fact, including the weight to be given to it.
[6] The trial judge might have better avoided repeating this reference from F. (C.C.), twice as she did, or have made it clearer that she was not approaching the complainant’s statement differently than the rest of the evidence. That said, when one reviews her detailed reasons, it is clear that the trial judge was not giving undue emphasis to the statement just because of its nature and timing. The trial judge dealt with inconsistencies in the complainant’s evidence and concluded that were minor in nature and, whether viewed individually or collectively, they did not lead her to have concerns regarding the complainant’s evidence.
[7] In the end result, the trial judge found the complainant to be credible and reliable. She gave detailed reasons for her conclusion. There is no error shown. . R. v. P.K.
In R. v. P.K. (Ont CA, 2023) the Court of Appeal considered the evidentiary use of a child's videotaped testimony [under CCC 715.1]:B. THE INSTRUCTION ON THE APPELLANT’S VIDEOTAPED STATEMENT
[38] The complainant gave a videotaped statement that was admitted at trial under s. 715.1 of the Criminal Code. She also testified.
[39] In the course of his instructions, the trial judge told the jury:You may also consider what [the complainant] said in the videotape for another purpose. It may help you decide whether or how much you will believe or rely upon [the complainant’s] testimony in this case. [40] The appellant submits that the above-quoted instruction invited the jury to use the video statement, to the extent that it was consistent with the complainant’s testimony, to bolster the credibility of her in-court testimony.
[41] Statements admitted under s. 715.1 are not treated as prior statements made by a witness. Instead, “the statement becomes part of the child’s in-court testimony as if the child were giving the statements on the videotape in open court”: R. v. F. (C.C.), [1997] 3 S.C.R. 183, at para. 45; R. v. L.O., 2015 ONCA 394, at 43.
[42] Statements admitted under s. 715.1 are admissible for their truth because their proximity to the relevant events renders them sufficiently reliable to warrant admissibility. The statements are best characterized as part of the complainant’s evidence in-chief, and not as prior consistent or inconsistent statements.
[43] To the extent the trial judge’s instructions suggest a mischaracterization of the s. 715.1 statement as a prior statement of the complainant, that mischaracterization had no substantive effect on the instruction. The jury was properly told of the use it could make of the videotaped statement. They were told it was admissible for its truth, and it could be used in assessing the reliability of the complainant’s in-court testimony. The jury were also told to consider the extent to which the s. 715.1 statement was inconsistent with the complainant’s testimony in the witness box. All three instructions are correct: L.O., at paras. 40-44.
[44] The jury were properly instructed on the use of the s. 715.1 video statement. . R. v. J.P.
In R. v. J.P. (Ont CA, 2023) the Court of Appeal considers the treatment of child evidence:[37] Further, when someone testifies about events that transpired when they were a child – especially on matters such as time and location, or about precise details – their evidence must be assessed differently taking into account their age, level of maturity and the passage of time. The fact it is challenging for a child witness to remember and recount precise details of an event, like the “when and where”, “does not mean they have misconceived what happened to them”: R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55. See R. v. W.(R.), at pp. 133-34; R. v. A.M., at para. 9. . R. v. T.O.
In R. v. T.O. (Ont CA, 2023) the Court of Appeal considered a criminal appeal centering on the trial judge's findings of credibility. In this quote the court considers the treatment of testimony regarding events that occurred during the witness' childhood:[28] In her reasons, the trial judge referred to the difference between credibility and reliability and noted the importance of consistency in a witness’s evidence. She also referred to case law on assessing the evidence given by an adult regarding events that occurred during their childhood, taking into account the effect of the passage of time, but not treating the person as a child: R. v. Pindus, 2018 ONCA 55, at paras. 34, 37; R. v. M.(A.), 2014 ONCA 769, 123 O.R. (2d) 536, at para. 11. Finally, in conducting her credibility analysis, the trial judge explained on a number of occasions the factors she was considering in coming to her conclusions. . R. v. D.D.
In R. v. D.D. (Ont CA, 2022) the Court of Appeal considered testimony from children, and that from adults who witnessed events when children:[4] In R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, it was affirmed that the evidence of children must be approached on a common sense basis bearing in mind their mental development, understanding and ability to communicate. “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”: R. v. W. (R)., at para. 25. By way of illustration, the inability of the child complainant in R. v. W. (R.) to accurately describe the location of bedrooms in a house, a peripheral matter, was not significant to her credibility or reliability, since a child may not attend to such details: R. v. W. (R.), at para. 30.
[5] Even when adults testify about events that allegedly occurred when they were children, such considerations remain relevant. This is logical. If a witness would not likely have noted the thing as a child, their failure to relate that thing years later while testifying as an adult cannot meaningfully unsettle the credibility or reliability of their evidence. Therefore, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying” (emphasis added): R. v. W. (R.), at para. 27.
[6] However, “[in] general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness”: R. v. W. (R.), at para. 27. The trial judge cited this principle correctly but misapplied it. . Paddy-Cannon v. Canada (Attorney General)
In Paddy-Cannon v. Canada (Attorney General) (Ont CA, 2022) the Court of Appeal considered the treatment of evidence of children (at the time of the events):[33] It is undisputed that when adult witnesses testify about events that occurred when they were children, in general their evidence should be assessed by the criteria applicable to adult witnesses: W. (R.), at p. 134. However, inconsistencies and lack of memory in that testimony must be considered in the context of the age of the witness at the time of the events: W. (R.), at p. 134; see also R. v. Pindus, 2018 ONCA 55, at para. 37; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 34, leave to appeal refused, [2017] S.C.C.A. No. 274. .... . R. v. J.J.
In R. v. J.J. (Ont CA, 2021) the Court of Appeal considered the treatment of evidence from young persons:[16] Moreover, in addressing the frailties in the complainant’s testimony, the trial judge properly took into account that the complainant was only 15 at the time of the sexual assault and 17 when she testified at trial. He considered the Supreme Court’s guidance for dealing with young witnesses in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, and R. v. François, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827. While age played a role in his credibility and reliability analysis, the trial judge found that the difficulties with the complainant’s evidence were a function of her shyness, immaturity, lack of education, strict religious upbringing in an unsupportive family, and feelings of embarrassment, rather than her age alone. He concluded that these issues did not fatally undermine the complainant’s evidence. . R. v. Pindus
In R. v. Pindus (Ont CA, 2018) the Court of Appeal stated an important point about the evidence of witnesses who were children when the events occured, but adults when they testified:[34] C.R. was 25 when she testified about the events that occurred when she was 14 and 15 years old. Nonetheless the trial judge was obligated to assess her evidence according to her age when she testified, not her age when the events she was testifying about it occurred. In other words, the principle is the following: when adult witnesses testify about events that occurred when they were a child, their evidence should be assessed by the criteria applicable to adult witnesses, not by the somewhat relaxed criteria applicable to child witnesses. See: Kendall v. R, 1967 CanLII 79 (SCC), [1967] S.C.R. 469, at pp. 473-474; and R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 11 and 25.
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