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Evidence - Child Witnesses. 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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