Testimonial Support Provisions for Children and Vulnerable Adults (Bill C-2):
Case Law Review and Perceptions of the Judiciary

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Table of Contents

• Executive Summary
• 1. Introduction
  • 1.1 Background
  • 1.2 Purpose of the Project
  • 1.3 Methodology
    • 1.3.1 Case Law and Canadian Literature Review
    • 1.3.2 Survey of Judges
  • 1.4 Limitations
• 2. Review of Bill C-2 Case Law and Legal Literature
  • 2.1  The Competence of Child Witnesses: Canada Evidence  Act s. 16.1
    • 2.1.1 Elements of Testimonial Competence under s. 16.1
    • 2.1.2  The "Promise to Tell the Truth"
    • 2.1.3 Conduct of the Competency Examination
    • 2.1.4  Constitutionality of Section 16.1 of the Canada Evidence Act
    • 2.1.5 Inherent Authority to Instruct Child
  • 2.2 Accommodating Child Witnesses: Introduction
    • 2.2.1  Support Person: s. 486.1
    • 2.2.2 Use of a Screen or Closed-circuit Television: s. 486.2
    • 2.2.3 Preventing Questioning by Self-represented Accused: s. 486.3
    • 2.2.4  Video-recorded Evidence: ss. 715.1 and 715.2
• 3. Results of the Survey of Judges
  • 3.1 Demographics of Survey Respondents
  • 3.2 Judges' Use and Perceptions of Bill C-2
  • 3.3 Judges' Experiences with the Provisions Contained in Bill C-2
    • 3.3.1 Competency Inquiries
    • 3.3.2 Support Persons
    • 3.3.3 Screens and Closed-circuit Television
    • 3.3.4  Counsel Appointed for Self-represented Accused
    • 3.3.5 Video-recorded Evidence
  • 3.4 Questioning of Children
  • 3.5 General Comments
  • 3.6 Summary of Survey Results
• 4. Discussion and Conclusions
• Appendix A
• Appendix B

Tables

• Table 3.1: Number of Completed Surveys Returned by Jurisdiction and Level of Court
• Table 3.2: Characteristics of Judges' Criminal Cases
• Table 3.3: Extent to Which the Judges Agree That the Provisions Amended in Bill C-2 are Useful
• Table 3.4: Characteristics of Judges' Competency Inquiries by Age of Child Witness
• Table 3.5: Characteristics of Judges' Criminal Cases Involving the Support Person Provision
• Table 3.6: Point in the Proceeding When Applications for Various Provisions in Bill-C-2 are Most Commonly Made
• Table 3.7: Characteristics of Judges' criminal Cases Involving the Provisions for Screens and Closed Circuit Television
• Table 3.8: Frequency of Provisions Granted in Successful Applications for Screens and Closed-Circuit Television
• Table 3.9: Characteristics of Judges' Criminal Cases Involving the Appointment of Counsel for Self-Represented accused
• Table 3.10: Characteristics of Judges' Criminal Cases Involving the Provision for Video-recorded Evidence
• Table 3.11: Judges' Perceptions of How Often Child Witnesses are Asked Questions they are Incapable of Answering by Various Professionals

Figures

• Figure 3.1: Proportion of Judges Reporting Familiarity with and Use of the Amendments in Bill C-2, by Level of Court
• Figure 3.2: Proportion of Judges Using Various Provisions Amended by Bill C-2,  by Level of Court
• Figure 3.3: Most Common Support Person Used in Cases with Child Witness under 18 and Vulnerable Adult Witness
• Figure 3.4: Judges' Perceptions of Whether the New Provisions May Render the Trial Unfair to the Accused

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