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Childhood Memories: The Courts’ Treatment of Underage Witnesses and Evidence

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Joseph A. Neuberger & Saul Benavides Carrasquero  

Neuberger & Partners LLP

When complainants testify about events that allegedly happened to them in childhood there are unique difficulties for an accused, especially when the allegations are historical in nature.  Historical sexual assault allegations have always had unique aspects for both the prosecution and defence in the criminal justice process.

It is important for defence lawyers to understand the challenges of defending against sexual assault allegations involving children as the evidence of a child witness is treated differently than that of an adult.

In 1992, the Supreme Court of Canada gave a definitive answer on how the evidence of children is to be used in judicial proceedings. In the case of R. v. W. (R.), [1992] 2 S.C.R. 122, the respondent had been convicted of three counts of indecent assault, one count of gross indecency, and one count of sexual assault in relation to three young girls. Although there were some inconsistencies with the girls’ evidence, the trial judge also considered each complainant’s intelligence, memory, and young age when the offenses were alleged to have taken place and accepted their testimony as credible. The Ontario Court of Appeal reversed the outcome of the decision, noting that the children’s evidence had reliability issues, that there was no external evidence confirming their accounts and that the older girls were unaware that anything bad actually happened.

The Supreme Court reversed the Court of Appeal decision noting that the notion that children’s evidence was inherently unreliable was deemed to be an error of law that had been discarded and the requirement for the evidence of children to be corroborated in order to convict was repealed. Additionally, it was found to be wrong in law to apply adult tests for credibility to the evidence of children.

Although the tests for credibility are different, the evidence of children must still be subject to the same standard of proof as adult witnesses in criminal cases. The focus has simply been to move away from relying on stereotypes about how a victim would behave. Additionally, it is important for the defence to recognize that inconsistencies that may undermine the credibility or reliability of an adult are not going to carry the same weight when dealing with child complainants.

Generally, where adults are testifying to events that they claim occurred in their childhood, credibility should still be assessed in the criteria applicable to adult witnesses. In R. v. D.D., 2022 ONCA 786, the Ontario Court of Appeal overturned the conviction and revisited the necessity to hold adults recounting childhood events to an adult standard of proof. Even though their evidence may be the retelling of childhood events with the limited details expected of a child’s experience, their credibility must still be assessed as an adult witness. Although different from adults, child witnesses are recognized by the Court to play an important role in the criminal justice system, and their evidence is expected to be carefully considered by the trier of fact.

When defending against historical sexual assault allegations involving child complainants or adults alleging abuse as a child it is important to understand the differing expectations in regard to the quality of evidence. It is also important to understand and avoid relying on myths or stereotypes about how a child would be expected to respond to or recall the details of the alleged abuse.

It is an important advancement in sexual assault law that the evidence of children is no longer presumptively viewed with suspicion, but it also presents unique challenges that need to be handled with care and expertise when defending against sex assault allegations involving children.

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